GIFT OF LAWS RELATING TO THE NAVY ANNOTATED INCLUDING THE CONSTITUTION OF THE UNITED STATES, THE REVISED STATUTES OF THE UNITED STATES, AND THE UNITED STATES STATUTES AT LARGE IN FORCE MARCH 4, 1921 COMPILED BY GEORGE MELLING "WASHINGTON GOVERNMENT PRINTING OFFICE 1922 v. Vi :•:'.• ^' S. SwDf, .roor ^tnenta. Gift 7^' /I ^■ <' Department of the Navy, Office of the Judge Advocate General, Washington, June 28, 1922. From : The Judge Advocate General of the Navy. To : The Secretary of the Navy. 1. There is transmitted herewith a compilation of the laws relating to the Navy, Navy Department, and Marine Corps, annotated, which has been prepared by Mr. George Melling, attorney in this office, by authority of the Secretary of the Navy, pursuant to the following resolution of the United States Senate, adopted March 30, 1914: Resolved, That the Secretary of the Navy be requested to prepare and submit to the Senate at its next regular session, or as soon thereafter as practicable, a compilation, with complete index, of existing laws relating to the Navy, Navy Department, and Marine Corps, with annotations showing how such laws have been construed and applied by the Navy Department, the Comp- troller of the Treasury, the Attorney General, or the courts, the cost of said compilation, not to exceed $3,000, to be covered by appropriations to be reported by the Committee on Appropriations. 2. It is recommended that this compilation be published for the informa- tion of the naval service, with the understanding that no inference of depart- mental construction is to be drawn from the arrangement of the laws and cross references embodied therein, or from the inclusion or omission of a par- ticular enactment, and that no added weight is given to any decision or opinion by reason of its inclusion. J. L. Latimer. Approved, June 28, 1922. Theodore Roosevelt, Acting Secretary of the Navy. Ill 5034:] i PREFACE. This compilation is divided into three parts, in addition to an introduction briefly explaining the sources of the law governing the Navy and certain elementary rules for the interpretation of statutes. Part 1 contains the full text of the Constitution of the United States and all amendments thereto, with digested decisions and opinions of especial interest to the Navy, and an analytical index reproduced from official documents. Part 2 consists of the sections of the Revised Statutes of the United States relating to the Navy, Navy Department, and Marine Corps, numerically arranged, as published in the second edition of the Revised Statutes * and subsequent amendments to and including March 4, 1921. The annotations to these sections contain references to related statutes, as well as digests of decisions and opinions on the same subject. Part 3 embodies acts and resolutions of Congress in force March 4, 1921, which are not contained in the Revised Statutes, and which have been reprinted from the United States Statutes at Large.^ Many of these laws are quoted or summarized in Part 2, in connection with sections of the Revised Statutes to which they relate; but they have nevertheless been placed in their chrono- logical order in Part 3, except where they expressly amend or reenact par- ticular sections of the Revised Statutes or subsequent enactments, in which case they have in general been reproduced in the place of the provision for which substituted, without needless duplication. In Part 3 the annotations consist principally of cross references to sections of the Revised Statutes and other enactments on the same subject which have been more fully an- notated. This arrangement of the compilation will make it possible for those using it most frequently to turn to a particular section of the Revised Statutes or to an act or resolution of a particular date, with which they are familiar, without the necessity of consulting the index on every occasion; while related statutes may also be readily located, from the cross references, without recourse to the index. Furthermore, the sections of the Revised Statutes are grouped, as in the ofTicial publication, under descriptive titles ^ and chapter headings which will also facilitate the use of the compilation without constant reference to the index. At the same time, no effort has been spared to make the index as complete as possible. It was naturally impracticable to annotate fully every provision of law contained in the compilation, as that would have produced a work so voluminous as to defeat its purpose. In this situation, certain sections have been annotated copiously, and others more briefly or not at all, to the end that the compila- > See Introduction, p. 2. ' See Introduction, p. 5. 8 See Introduction, p. 3. PREFACE. tiou might onibody the material which, in the light of past experience, was believed to be of greatest value. In not a few instances conflicting opinions have been rendered as to the interpretation of some statutory provision concerning which there has been no final adjudication. In such cases the various opinions expressed on the sub- ject have been digested without regard to their effect, so that all precedents might be available for consideration should the question again arise. In order that the compilation might be found useful by those not trained in the law or not having access to the decisions cited therein, the digests have been stripped of technical language wherever possible, and made as full as space would permit, even to the point, in some instances, of reproducing nearly the entire decision, contrary to the usual practice in works of this character. Other decisions which were not of general interest, or which were merely cumulative, have been cited without any digest of the particular case. It has been found necessary to include in the compilation some few statu- tory provisions which were possibly not in force on March 4, 1921, but which had not been expressly repealed and as to the existence of which there was such doubt that their omission would have been unwarranted in the absence of a definite ruling on the subject. Other provisions which were expressly repealed or plainly superseded by later enactments have been omitted or, when of possible liistorical value, have been included with explanatory notes. An incomplete advance copy of the compilation, which was issued in pamphlet form in 1915, has been revised and embodied in the finished work. Certain abbreviations used in citations tlu'oughout the compilation are explained in the Introduction.^ Other citations which may require explana- tion are the following: "R. S." refers to the Revised Statutes of the United States, second edition; ''Stat." refers to the United States Statutes at Large; "Comp. Dec." refers to decisions of the Comptroller of the Treasury; "Op. Atty. Gen." refers to opinions of the Attorneys General; "C. M. O." refers to court-martial orders published by the Navy Department; ''S. and A. Memo." refers to memoranda published monthly by the Bureau of Supplies and Accounts of the Navy Department; "Naval Dig." refers to a digest published by the Navy Department in 1916; file numbers refer to papers on file in the office of the Secretary of the Navy. * See Introduction, p. 6. VI INTRODUCTION. I. The Constitutiox. II. The Revised Statutes. III. The Statutes at Large. IV. Decisions of Courts, Opinions of Law Officers of the Government, Regulations, etc. V. Classification of Statutes. VI. The Interpretation and Construction of Statutes. The law governing the Navy is contained principaUj in the Constitution of the United States, the Revised Statutes of the United States, and the United States Statutes at Large. In addition there is a large mass of naval law to be found in the decisions of courts, opinions of law officers of the Government, regulations issued with the express or implied approval of the President, and customs and usages of the Navy. I. The Constitution. The ConstitutiorL consists of seven original articles, drafted in 1787, and ninenteen articles in amendment thereof which have since been adopted. It is provided by the original Constitution (Art. VI) that "this Constitution, and the laws of the United States which shall be made in pursuance thereof; and aU treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." Congress is authorized by the Constitution ''to provide and maintain a Navy," and "to make rules for the government and regulation of the land and naval forces" (Art. I, sec. 8). These clauses of the Constitution are the authority for most of the statutory enactments relating to the Navy, although other less explicit clauses of the Constitution impHedly authorize legislation either directly or indirectly governing the Navy. (II.) INTRODUCTION. Revised Statutes. II. The Revised Statutes. The Re.dsed Statutes " embrace the statutes of the United States general and permanent in their nature, in force on the 1st day of December, 1873, as revised and consohdated by commissioners appointed under an act of Congress." * The " Revised Statutes " is one act of Congress, over a thousand pagfts in length, entitled ''An act to revise and consolidate the statutes of the United States, in force on the first day of December, anno Domini one thou- sand eight hundred and seventy-tlu-ee " ; it commences with the usual clause, ^^ Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled/' contains 5,601 sections, bears the approval of the President dated June 22, 1874, and provides that it "shall be designated and cited, as The Revised Statutes of the United States," ^ The main object of the revision was to incorporate all the existing statutes in a single volume, that all persons desiring to know the written law upon any subject might learn it by an examination of that volume without the necessity of referring to prior statutes upon the subject.^ Accordingly it was provided by the Revised Statutes that " all acts of Congress passed prior to said first day of December, one thousand eight hundred and seventy-tliree, any portion of which is embraced in any section of said revision, are hereby repealed and the section applicable thereto shall be in force in lieu thereof; all parts of such acts not contained in such revision, having been repealed or superseded by subsequent acts, or not being general and permanent in their nature." ^ However, it is further provided by the Revised Statutes that " aU acts of Con- gress passed prior to said last-named day [December 1, 1873] no part of which are embraced in said revision, shall not be affected or changed by its enact- ment"; ^ and it is permissible, when necessary, to refer to the original statutes as an aid to the interpretation of sections of the Revised Statutes where the meaning of the latter is not plain. The first edition of the Revised Statutes was published in 1874, pursuant to an act of Congress approved June 20th of that year; ^ it is a tran- script of the original Revised Statutes as enacted by Congress and approved by the President, and which is preserved in the Department of State.^ A great many errors and omissions were discovered in the Revised Statutes after the publication of the first edition, and several hundreds of such errors were cor- rected in subsequent acts of Congress.* A second edition of the Revised Statutes was published in 1878, having been prepared by a commissioner appointed under authority of an act of Congress approved March 2, 1877.^ This second edition "is not in any proper sense a new revision of the statutes of the United States. The commis- 1 Section 5595, R. S. 2 Hamilton v. Rathbone (175 U. S., 421); Murdock v. Memphis (20 WalL, 590, 617). 3 Section 5596, R. S. * 18 Stat.. 113. 6 Wright V. U. S. (15 Ct. CIs., 80). 6 Act Feb. 18, 1875, 18 Stat., 316, entitled " An act to correct errors and to supply omissions in the Revised Statutes o( the United States"; act Feb. 27, 1877 (19 Stat., 268), entitled "An act to perfect the revision of the statutes of the United States and of the statutes relating to the District of Columbia." ' 19 Stat., 268. Revised Statutes. INTRODUCTION. (II. sioner was not clothed with power to change the substance or to alter the lan- guage of the existing edition of the Revised Statutes, nor could he correct any errors or supply any omissions therein except as authorized by the several statutes of amendment. Of specific amendments there are, however, several hundred, which have been incorporated with the text. The portions of the statutes repealed are printed in italics and included in brackets, and the new matter introduced is printed in the ordinary roman letter and also included in brackets." ^ This form has been followed in the present compilation, which is based on the second edition of the Revised Statutes, being the edition now in general use. (See, for example, sec. 284 of the Revised Statutes, as printed herein.) This second edition of the Revised Statutes is only a new pubhcation; a compilation containing the original Revised Statutes with specific amend- ments afterwards made by Congress and incorporated therein according to the judgment of the editor.- By direction of Congress there was pubhshed, as part of the second edition, the Articles of Confederation, the Declaration of Independence, the Ordinance of 1787 for the Government of the Northwestern Territory, the Constitution of the United States with footnotes referring to decisions of the Federal courts thereon, the "act to provide for the revision and consohdation of the statute laws of the United States," approved June 27, 1866, the ''act providing for pubhcation of the Revised Statutes and the laws of the United States," ap- proved June 20, 1874, and the "act to provide for the preparation and pubh- cation of a new edition of the Revised Statutes of the United States," approved March 2, 1877. There is also pubhshed an act amending the act last cited, approved March 9, 1878. "Titles" in the Revised Statutes. — The Revised Statutes is divided into 74 "titles," which titles when of sufficient length are subdivided into "chapters." Title I, which is in two chapters, contains "General Pro- visions," dealing with "definitions," and "form of statutes and effect of repeals"; continuing, the various titles cover "The Congress" (Title II); "The President" (Title III); the "Executive Departments," collectively and sepa- rately (Titles IV to XII); "The Judiciary" (Title XIII); "The Army" (Title XIV); "The Navy" (Title XV); "The Militia" (Title X\^); and so on to Title LXXIV, which contains "Repeal Provisions." It is provided by the Revised Statutes that "the arrangement and classi- fication of the several sections of the revision have been made for the purpose of a more convenient and orderly arrangement of the same, and therefore no inference or presumption of a legislative construction is to be drawn by reason of the Title under which any particular section is placed." ^ Thus, for example, section 1428 of the Revised Statutes, which appears under Title XV, "The Navy," provides that "the officers of vessels of the United States shaU in all cases be citizens of the United States." The law from which this section is taken did not relate to the Navy, and no inference of a '^ legislative construction" could be drawn by reason of this clause being placed in the revision under the I Extract from preface to second edition of the Revised Statutes. » Section 5600, R. 8. » Wright V. U. S. (15 Ct. Cls., 80). 3 (II.) INTRODUCTION. Revised Statutes. title mentioned. That is to say, the mere fact that this section is placed under the title relating to the Navy is not to be taken to mean that Congress regarded this law as applicable to the Navy, and intended it to be so construed. How- ever, upon other considerations this section has been held to require that officers of vessels of the Navy must be citizens of the United States the same as officers of private vessels of the United States.* (The same provision is repeated in section 4131, Revised Statutes, under the title, "Regulation of Commerce and Navigation.") Marginal notes.^ — The first edition of the Revised Statutes, by direction of Congress contained marginal notes referring to the statutes from which each section was compiled. Thus, under Title X, "The Department of the Navy," will be found section 415 wliich provides that 'Hhere shall be at the seat of Government an Executive Department, to be known as the Department of the Navy, and a Secretary of the Navy, who shall be the head thereof." After this section appears the following note: "30 April, 1798, c. 35, s. 1, v. 1, p. 553." This note means that section 415 was based on the act of Congress approved April 30, 1798, chapter 35, section 1, which act is published in volume 1 of the Statutes at Large, page 553. By reference to the volume and page cited will be fomid the original law establishing the Department of the Navy. Many sections of the Revised Statutes w^ere compiled from several acts of Congress, in which cases the margmal notes are more copious; as, for example, section 161, concernmg "Departmental regulations, property, and records," the notes to which section refer to nine acts of Congress, all of which must be examined if it is desired to trace the history of the section. These marginal notes can not in all cases be accepted as correct, as in some instances erroneous references are given. Thus, the note to section 285 of the Revised Statutes cites volume 19, instead of volume 9, of the Statutes at Large for the original law upon which this section of the revision was based. Nor do the margmal notes in aU cases furnish a complete history of the legislation, as for example, section 1422 of the Revised Statutes, w^hich cites an act passed in 1862 as its earliest authority, whereas a similar statute was enacted March 2, 1837. (5 Stat., 153.) In the second edition of the Revised Statutes the original marginal ref- erences are preserved, with additional notes incorporated pursuant to instruc- tions given by Congress and referring to acts passed subsequent to the period covered by the revision, which either expressly amend same or which, in the opinion of the commissioner, "may in any manner affect or modify any of the provisions of the said Revised Statutes or any of the amendments thereto." References to statutes of this kind were expressly directed by Congress to be indicated in the marginal notes by a difference m type. Thus, referring again to section 161, the last act cited in the marginal notes thereto is "15 Aug., 1876, c. 287, s. 3, v. 18, p. 169, " italics being used to distinguish this reference from those contained in the marginal notes which appeared in the first edition under the same section and which are repeated in the second edition in roman letters. I See note tj section 1428, Revised Statutes. ■■i In this compilation (pt. 2) the marginal notes are reprinted from tlie second edition of the Revised Statutes, but appear in parentheses immediately following the text, instead o fin the margin. statutes at Large. INTRODUCTION. (III.) The marginal notes are not only of historical value, but frequently are important in interpreting sections of the Revised Statutes, where it becomes necessary to refer to the original law in order to ascertain the meaning of ambiguous language occurring in the revision.^ III. The Statutes at Large. The Statutes at Large consist at this writing of 41 volumes, extending from March 4, 1789, to March 4, 1921. The laws contained in the first 17 volumes are practically superseded by the Revised Statutes, and occasions for reference to said volumes will ordinarily be infrequent. The remainmg vol- umes, however, commencing with December 1, 1873, must always be consulted in connection with the Revised Statutes in order to ascertain whether any particular section of the revision has been repealed, superseded, amended, or otherwise affected by subsequent enactments. More than a thousand sections of the revision have thus been modified by various later statutes, in addition to which a "Criminal Code" and a "Judicial Code" have been enacted, revis- mg and superseding the sections of the Revised Statutes as well as subsequent laws on those subjects. An " Index Analysis of the Federal Statutes," from 1789 to 1907, was pubhshed by authority of Congress in 1908, and this will be found inval- uable in locating the sections of the Revised Statutes on any subject and amendatory acts contained in volumes 18 to 34 of the Statutes at Large. For later enactments reference must be had to the official index contained in each volume of the Statutes at Large, with the assistance where available of unofficial pubfications, such as the "United States Compiled Statutes," the "Federal Statutes Annotated," the "United States Statute Citer-Digest," etc., to which pubfications supplements are issued periodically, keeping the various works practically up to date. IV. Decisions of Courts, Opinions of Law Officers of the Govern- ment, Regulations, etc. Authoritative decisions and opinions of the Federal courts and law oflB.cers expounding the law contained in the Revised Statutes and the Statutes at Large become, in effect, a part of the various laws which have been the subject of such decisions and must be carefully consulted if it is desired to know definitely what the law is on any given subject. Thus, let it be sup- posed that the question is. What law authorizes the retirement of warrant officers of the Navy for physical disabifity? An examination of the Revised Statutes and Statutes at Large will not disclose any law specificaUy covering the point at issue. Turning, then, to the decisions of the courts, we find that the question was considered by the United States Supreme Court in the case of Brown v. United States,^ and that it was there held to be doubtful whether the retirement of warrant officers for physical disabifity was authorized by law, but that the court decided to adopt the decision of the Navy Depart- ment that warrant officers, the same as commissioned ojficers, should be » See below, VI, D, 2, "Marginal Notes In Revised Statutes." *113 U. S., 571. (IV.) INTRODUCTION. Decisions, etc. retired under sections 1448 to 1455, Revised Statutes. The result of this decision is that the sections cited include warrant officers the same as if they had boon spocificaUy montionod therein by Congress. Decisions of the United States Supreme Court of course rank first among the Fetk^ral authorities, and those are published officially in what are known as the United States Reports, although the earlier volumes are known and commonly cited by the names of the ofhcial reporters, viz, Dallas, Cranch, Wheaton, Peters, Howard, Black, Wallace, and Otto. Thus, '' 1 Pet., 100," would mean volume 1 of Peters's reports of the decisions of the United States Supreme Court, page 100. The official pubhcations of later decisions of the Supreme Court are cited simply as "U. S." Thus "200 U. S., 100," would mean volume 200 of the decisions of the United States Supreme Court, page 100. Decisions of Inferior Federal courts come next, and these may be found in the Federal Cases, cited as "Fed. Cas.," and extending from 1789 to 1880; and the Federal Reporter, cited as "Fed. Rep." or "Fed.," and extending from 1880 to date; both of which reports, although unofficial publications, are generally consulted and cited by lawyers and courts, the official publications of the same decisions being of more limited circulation. These reports, however, do not mclude the decisions of the Court of Claims, which are published officially in what are known as the Court of Claims Reports, cited as "Ct. Cls." or "C. Cls.," and contain a particularly large number of decisions of importance to the Army and Navy. ^ The Attorney General being the chief law officer of the Government, his official opinions, which are published by authority of Congress, come next in order after decisions of the Federal courts in the interpretation of Federal statutes and the appUcation of judicial decisions relating thereto. Other opinions and decisions are pubhshed by different departments of the Govern- ment, such as the Decisions of the Comptroller of the Treasury, Decisions of the Department of the Interior, Decisions of the Interstate Commerce Com- mission, etc. Decisions of State courts also contain many cases relating to naval law, which, while not controlling upon the Federal Government, are usually regarded as instructive and accorded more or less weight, in the consideration of similar questions, where not in conflict with any Federal authority. Short-cuts to these decisions are to be found in the digests and indexes pubhshed in connection therewith, and in legal encyclopedias, text-books, and unofficial indexes and digests. Among the latter the most important is the "American Digest," which contains in accessible form a complete digest of all reported decisions of American courts, commencing with the year 1658 and kept practically up to date by new editions and supplements. Of value in this connection are the unofficial reports of leading cases, published with notes, in which are collected important decisions bearing upon the points discussed, such as the "Lawyers Reports Annotated," cited as "L. R. A.," the "American and Enghsh Annotated Cases," cited as "Ann. Cas.," etc. Also should be mentioned what are known as "Shepard's Citations," which enable the lawyer to trace the decisions in which a particular case has been cited, affirmed, fol- ' For brief explanation of the judicial system of the United States, see note to the Constitution, Article I, section 8, clause 9. Classes of Statutes. INTROD UCTION. (V.) lowed, distinguished, reversed, etc. Of these, "Shepard's United States Citations," and "Shepard's Federal Citations" are the ones to be consulted in connection with decisions of the Federal courts. Regulations and customs and usages of the Navy, where approved by Congress, or not in conflict with any statutory enactment, have the force of law and are so regarded by the courts. For reference to the authorities relating to this subject, and bearing particularly upon the force and effect of Navy Regulations, Naval Instructions, usages of the Navy, etc., see notes to sections 161 and 1547 of the Revised Statutes, published in this compilation. V. Classification of Statutes. A great many classifications of statutes have been adopted and are of importance in connection with rules to be appUed to their interpretation. Of the different classes the following may be mentioned and briefly explained : A declaratory statute is one which merely declares or afiirms what is already the existing law by established custom or by constitutional or statutory provision. Thus, by section 1458 of the Revised Statutes, under the title "The Navy," it was provided that " the next officer in rank shall be promoted to the place of a retired officer, according to the established rules of the service;" by various laws referrmg to different classes of officers of the Navy it is required that they pass prescribed examinations prior to promotion, although a general requirement to the same effect is contained in sections 1493 and 1496 of the Revised Statutes; by act of August 22, 1912,^ it is provided that the President may mitigate or remit disabilities imposed by law upon convicted deserters from the Navy, a power which he already possessed and exercised under the Constitution; and by sections 177 to 182 of the Revised Statutes the President is empowered to make temporary designation of an officer to perform the duties of the head of a department or bureau in case of the death, resignation, absence or sickness of the incumbent, although prior to the enactment of the law now contained in those sections it had been held by the Attorney General that this power was possessed and properly exercised by the President under the Constitu- tion.- In that case, however, the Attorney General said that " a general pro- vision of law is desirable to remove all doubt on the subject,"^ and this is the principal value of all such declaratory statutes. Public and private acts. — Of "public" and "private" statutes it has been said that "the former embrace the whole community; the latter only certain individuals or associations. The only important distinction is that courts take notice of the former without special reference, but not of the latter. It is usual, however, to do away with this distinction, by inserting in private statutes a special clause declaring that they shall be treated as public."^ Special or private acts are rather exceptions than rules; being those which operate only upon particular persons and private concerns, the judges are not bound to take notice unless they be formally shown and pleaded.* 1 37 Stat., 356. 2 See notes to sections 177 and 181, Revised Statutes. 3 Walker's American Law, section 17. See also Unity v. Barrage (103 U. S., 447, 454, 456); Beaty v. Knowler (4 Pet. 152); Railroad Co. v. Richmond (96 U.S., 521, 529); U. S. v. St. Anthony R. Co. (192 U. S., 524); Young y. Bark (4 Cranch, 384,388); Gardner v. CoUector (6 Wall., 499,508). * 11 Enc. U. S. Rep., 71; Unity v. Barrage (103 U. S., 447, 454); People v. Wright (70 ni., 388, 398). (V.) INTRODUCTION. Classes of Statute. "In this country the disposition has been, on the whole, to enlarge the Umits of the class of public acts, and to bring within it all enactments of a general character, or whicli in any way affect the community at large." ' Congress has provided that "the term 'private bill' shall be construed to mean all bills for the rehef of private parties, biUs granting pensions, bills removing politicjil disabilities, and bills for the survey of rivers and harbors." ^ A penal statute, as the name implies, is one which imposes a penalty. This class embraces all such statutes as provide for the punishment of offenses against the State and which are within the pardoning power of the Executive.^ In a broader sense the term includes acts which are penal in their nature, although not enforceable by a criminal prosecution.* A statute providing that no officer or enlisted man of the Army shall receive pay for time absent from duty on account of misconduct is in the nature of a penal statute and must be construed strictly ; ^ but one requiring that officers of the Navy who are found unfit for promotion from causes arising from their own misconduct shall be discharged with not more than one year's pay, is not a penal statute,^ as it was not intended for the punishment of such officers, but primarily to promote the efficiency of the service. A remedial statute is one which is beneficial in its nature, intended to redress some existing grievance, to introduce some new regulation or proceeding conducive to the public good, or to supply defects of the law arising from mistake, change of circumstances, etc.'' Thus a law providing for the reap- pointment and retirement of a former officer of the Navy is remedial, ^ as are laws providing for the removal of the charge of desertion standing on the records of the Army or Navy against certain classes of persons who served in the Civil War, * laws authorizing the issuance of discharge certificates in true name to persons who enlisted under assumed names, etc.; also a statute pro- viding for extensions of enhstments by men in the Navy. '" A mandatory statute is one which absolutely requires strict com- phance with its terms, so that official acts not done in the manner it prescribes are null and void. " A directory statute is one intended merely "for the guide of officers in the conduct of business devolved upon them, which " does "not limit their power or render its exercise in disregard of the [statutory] requisitions ineffectual. Such generally are [statutory] regulations designed to secure order, system, and dispatch in proceedings, and by a disregard of which the rights of parties interested can not be injuriously affected." '^ 1 Unity V. Burrage (103 U. S., 447, 45.5); Ketchum v. St. Louis (101 U. S., 315). 2 Public printing and binding act, Jan. 12, 1895, section 55 (28 Stat., 609), as amended by act Jan. 20, 1905, section 2 (33 Stat., 611). « U. S. t'. Chouteau (102 U. S., 603, 611); Huntington v. AttriU (146 U. S., 657, 667). < Huntington v. Attrill (146 U. S., 657, 660, 667). '20Comp. Dec., 69. « See note to act Aug. 5, 1882 (22 Stat., 286); file 26260-1392, June 29, 1911; see also Street v. U. S. (133 U. S., 300) ; and see note to section 1441, Revised Statutes. ' See Baylies t'. Curry (30 111. App., 105, 109); Van Hook v. Whitlock (N. Y.), 2 Edw. Ch., 304, 310; O'Connor v. State (71 S. W. (Tex.), 409, 411); In re Lauritsen (99 Minn. 520, 109 N. W. 404, 408); Buckmaster v. McEIroy (20 Nebr., 557, 564, 31 N. W., 76, 80); Western Trav. Ace. Assn. v. Taylor (87 N. W., 950, 953, 62 Nebr., 783); Montpelier v. Senter (72 Vt.,112, 47 Atl.,392,393). 8 Quackenbush v. U. S. (177 U. S., 20, 27). » File 26539-551, Mar. 17, 1913; 19 Op. Atty. Gen., 222; Cole v. U. S. (34 Ct. Cls., 454). 10 20 Comp. Dec., 380. » 36Cyc., 1157; Bondw. Baltimore (118 Md., 159, 84 Atl., 258, 260); French v. Edwards (13 Wall., 506); Hubbert v. Campbellsville Lumber Co. (191 U. S., 76, 77). >2 French v. Edwards (13 WaU., 511). 8 statutory Construction. INTRODUCTION. (VI, A.) A prospective statute is one which applies to future cases and con- ditions. A retrospective statute is one which applies to and operates upon a past state of facts. A retrospective statute affectmg and changing vested rights is very generally considered in this country as founded on unconstitu- tional principles and consequently inoperative and void. * A curative statute is a retrospective law ordinarily passed to validate irregularities in legal proceedings, or to give effect to contracts which might otherwise fall for failure to comply with teclinical legal requirements.^ Cura- tive acts may also be embraced in the remedial class. "The power which can direct what proceedings shall be had can approve and make valid any proceedings which are actually taken. The power which can give authority to act can ratify any act that is taken, and generally leg- islative recognition of an act or a corporation validates the act or the corpo- ration, although neither one nor the other may have had fuU prior legal authority." ^ VI. The Interpretation and Construction of Statutes. A. GENERAL CONSIDERATIONS. B. THE LEGISLATIVE INTENT TO BE GIVEN EFFECT. C. HOW LEGISLATIVE INTENT IS TO BE ASCERTAINED. D. AIDS TO INTERPRETATION OF AMBIGUOUS STATUTES. E. CONSTRUCTION OF PARTICULAR STATUTES. A. GENERAL CONSIDERATIONS. A distinction has been drawn between the words "interpretation" and "construction," the former being held to mean the reading of a statute accord- ing to its letter, while the latter is defined to be the reading of a statute accord- ing to its spirit and intent;* it being said that "the very essence of construction is the extension of the meaning of a statute beyond its letter."^ In practice, however, this distinction is not always observed, the terms frequently being used interchangeably. "On the abstract principles which govern courts in construing legislative acts, no difference of opinion can exist. It is only in the application of those principles that the difference discovers itseK."^ It has been said that "there are many rules of interpretation, but they are of little use; common sense is the best guide." ^ It has also been said that "it is perfectly possible to make almost anything out of a tariff act by construction without violating rules for the interpretation of statutes,"^ and that "when justices of the United States 1 Heinzen v. U. S. (42 Ct. Cls., 58). See also Hubbert v. CampbellsviUe Lumber Co. (191 U. S., 76, 77); Bond v. Balti- more (118 Md., 159, 84 Atl. 258, 260); 36 Cyc, 1157; Compare Schenck v. Peay, 21 Fed. Cas. No. 12451. 2 Schamblin v. Means (6 Cal. App., 261, 91 Pac, 1020, 1022); McSurely v. McGrew (140 Iowa, 163, 118 N. W., 415, 119); Meigs v. Roberts (162 N. Y., 371, 56 N. E. 838, 840). 3 Street v. IT. S. (133 U. S., 307); see also 13 Comp. Dec, 417. 4 U. S. V. Farenholt (206 U. S., 226); Felton v. U. S. (96 U. S. 699, 702). ' Williams v. Gaylord (186 U. S., 157, 163). 6 U. S. V. Fisher (2 Cranch, 358, 386). ' Walker's Am. L., sec. 17. » Clay V. Erhardt (48 Fed. Rep., 294). 9 (VI, B.) INTRODUCTION. Statutory Construction. Supreme Court (or of any other court) divide on a question of statutory con- struction, the minority rarely have difhculty in finding well-settled rules of interpretation to support their dissent."* However, the rules by which courts are guided in construing statutes are sanctioned by wisdom and experience,^ of which they are the outgrowth; an examination of these rules will show that "common sense" is generally their foundation; and in cases where different rules, if applied, would lead to opposite results in construing a statute, ordinarily little difhculty will be experienced in determining which of the rules must yield in the particular case, resort being had under such circumstances to the many aids to interpretation sanctioned by precedent. In involved cases, where several statutes are passed at different times relating to the same subject, the provisions of which to the uninitiated may appear to be hopelessly at variance, apphcation of established principles of construction will generally serve to evolve a systematic and harmonious legislative scheme from the whole. However, regardless of individual opinions as to the value of rules of construction, it is certam that a knowledge of the fundamental princi- ples and their application is necessary if it is desired to construe a law with reasonable assurance that the result reached will likely be sustained by a court, if later called upon judicially to construe the same statute; for if the con- struction placed upon a law can not be sustained by any estabUshed canon of statutory construction, it is apparent that such construction will have diffi- culty in prevailing against estabhshed rules if attacked in a court by which such rules will certainly be apphed. The principles stated in the followmg pages are well established. Gen- erally, illustrative cases have been mentioned or cited, but the decisions in which the different rules of construction have been applied are so numerous and the circumstances so varied that to attempt more than a bare outline would be beyond the scope of this introduction. B. THE LEGISLATIVE INTENT TO BE GIVEN EFFECT. The first rule to be observed in construing statutes is that if possible an act is to be so construed as to effectuate the legislative intent. This has been called "the cardmal rule of construction." ^ 1. What is the legislative intent. — The "legislative intent" does not mean the mtention of the person who drafted the law, nor the intention of the individual member who introduced it in the legislative body, but the intention of the legislature as a whole. The purpose of the majority who voted for the passage of the law may have been entirely different from that of the particular individuals who proposed it or who may have been interested in securing its enactment. Accordingly it is established by the authorities that the intention of the individual by whom a statute was framed can not be considered in determining the meaning of such statute.* 1 1 Fed. Stat. Ann. (2d ed.), 25. 2 See The Paulina's Cargo (7 Cranch, 52, 60); Cary v. Curtis (3 How., 236, 239); The Mary Ann (8 Wheat., SsO, 3S7). > Postmaster General v. Early (12 Wheat., 136, 152); see also 9 Op. Atty. Gen., 472, In which it was stated: "It was unnecessary to quote a judicial decision for the purpose of proving that all written laws are to be construed according to the Intention of the legislature, for that is a fundamental principle which nobody denies." * File 24482-34, May 1, 1911; see below, VI, D, 5, "Legislative History." 10 statutory Construction. INTRODUCTION. (VI, B.) 2. The courts always presume that the legislature acts advisedly and with full knowledge of the situation. ^ "We must assume that the mem- bers by whose vote the act became a law fully weighed its meaning and intended what it expressed. "^ Thus, in prohibiting heads of departments, other than the Attorney General, from employing attorneys or counsel at the expense of the United States, Congress is presumed to have contemplated, inasmuch as ships of war are constantly on the high seas and in foreign ports, that questions of law would arise in respect to them in the administration of the Navy Department, and accordingly intended to include the employment of counsel in foreign countries within the prohibition of the statute.^ And in construing a statute providing for the distribution of prize money and author- izing payment of a specified bounty where the enemy's vessel was "of equal or superior force," it was held that the court could not suppose that Congress overlooked the fact that an enemy's vessel might be supported by land bat- teries, mines, and torpedoes, and accordingly that "the enemy's vessel" did not mean the enemy's vessel and the land batteries, mines, and torpedoes by wliich it was supported.* 3. It is the intent of the legislature, as expressed in the law itself and apparent upon its face, that must govern its construction if that intent can reasonably be gathered from its terms.^ 4. Where the language of the statute is plain and unambiguous, *' the legislature should be intended to mean what they have plainly expressed," and there is no need to resort to rules of construction to get at the intent and meaning of the law.^ "Legislative enactments, where the language is unam- biguous, can not be changed by construction, nor can the language be divested of its plain and obvious meaning. ' ' ^ 5. It is the province of courts to construe laws and not to make them; accordingly, considerations of injustice, inconvenience, and absurdity which may result from interpreting a statute according to its letter, where clear and unambiguous, must be addressed to the legislature.^ Where great incon- venience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain; in which case it must be obeyed.^ It is only where the proper construction is otherwise doubtful that arguments based on the mconvenience, injustice, or prejudice to the public interests resulting from a proposed construction may be considered.^" "It is, however, an adamantine rule of interpretation that the intention of the legis- lature is to be gathered from the words of the statute; and where the phrase- 1 Chesapeake, etc., Tel. Co. v. Manning (186 U. S., 238, 245); Field v. Clark (143 U. S., 649, 672); 28 Op. Atty. Gen., 87; 19 Op. Atty. Gen., 591. 2 Slidell V. Grandjean (111 U. S., 412, 437). 3 21 Op. Atty. Gen., 195; see section 189, Revised Statutes, and note. < Dewey v. U. S (178 U. S., 510). [Prize money is not now allov/ed by law.] i File 26253-200:1, Feb. 17, 1912; see also file 2625.3-114, Aug. 19, 1910, page 14. « Lake Co. v. Rollins (1.30 U. S., 670); Dewey v. U. S. (178 U. S., 521); 27 Op. Atty. Gen., 431, 432. ' State Tonnage Tax Cases (12 Wall., 204, 217); Rodger's case (36 Ct. Cls., 266); Clark's case (37 Ct. Cls., 60); 26 Op. Atty. Gen., 537. 8 11 Enc. U. S. Rep., 151; Donn v. Hamdon (1 Paine 61, 9 Fed. Cas. No. 4819, reversed, 1 Wheat., 300); 20 Op. Atty. Gen., 736; Thoraley v. U. S. (113 U. S., 310, 315); U.S. v. Chase(135U. S., 255, 262); U. S. v. Alger (152 U. S., 384, 397); Plessy V.Ferguson (163 U. S., 537, 558); Hawaii v. Mankichi (190 U. S., 197,247); Citizens' Bank?;. Parker (192 U.S., 73, 80); New Jersey U.Anderson (203 U.S., 483, 490); Texas, etc., R. Co. v. Abilene Cotton Oil Co. (204 U.S., 426); The Garden City (26 Fed. Rep., 766); In re Howard (63 Fed. Rep., 265). 9 U. S. V. Fisher (2 Cranch, 358, 386). 10 File 26521-30, Jan. 25, 1912; 26 Op. Atty. Gen., 537. 54641°— 22 2 11 (VI, B.) INTRODUCTION. Statutory Construction. ology admits of no doubt, the definitely expressed meaning must be recognized, notwithstanding the statute as thus construed may bo deemed irrational legis- lation."' The province of a court "is to declare what the law is, and not, under the guise of interpretation, or under the influence of what may be sur- mised to be the policy of the Government, so to depart from sound rules of construction as in effect to adjudge that to be law which Congress has not enacted as such."^ 6. The spirit and purpose of the act are not to be lost sight of in a strict adherence to its letter; ^ for " a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute imless it be within the intention of the makers."* The classical prece- dent commonly cited by courts on this point is the case in which a statute pro- hibiting the drawing of blood in the streets of Bologna was held not to apply to a surgeon who drew blood in treating a patient suddenly taken ill in the street, although literally construed he was subject to its penalties. Similarly a statute providing that a prisoner who broke prison should be held guilty of a felony would not be applied by the court to a prisoner who broke out of prison when it was on fire; "for he is not to be hanged because he would not stay to be burnt." These cases were quoted by the Supreme Court of the United States in holding that a pohce officer who arrested a mail carrier upon a charge of miu^der, while the mail carrier was on duty, was not guilty of a crime in delaying the mails although he thereby violated the letter of a Federal statute.^ A leading case on this point is Holy Trinity Church v. United States.^ The statute prohibited the importation of aliens under a contract to perform labor in this country. Certain classes of persons, such as actors, artists, lecturers, etc., were expressly excepted from the prohibition of the statute, but ministers were not so excepted. It was nevertheless held by the court that the intent of the law was not to include ministers in its prohibition, and accordingly that the bringmg of a minister to this country imder contract was not prohibited by the statute, although within its letter. "The operation of such a statute must be restrained within narrower limits than its words import, if the court is satisfied that the hteral meaning of its language would extend to cases which the legis- lature never intended to include in it." ^ So also the meaning of the legislature may be extended beyond the precise words used in the law, from the reason or motive upon which the legislature proceeded, from the end in view, or the purpose which was designed; the limita- tion of the rule being that to extend the meaning to any case not included within the words, the case must be shown to come within the same reason upon which the lawmaker proceeded, and not merely a like reason.^ Thus the words "assistant surgeons," as used in the Navy personnel act of March 3, 1 1 Fed. Stat. Ann. (2d. ed.), 99; see also 9 Op. Atty. Gen., 50; 13 Op. Atty. Gen., 460. 2 Dewey v. U. S. (178 U. S., 521); White v. U. S. (37 Ct. Cls., 378; 191 U. S., 545, 551). « Felton V. U. S. (96 U. S., 699, 702). <26 0p. Atty. Gen., 356, 362; U. S. v. Freeman (3 How., 565); Raymond v. Thomas (91 U. S.,715); 11 Enc.U.S.Rep. 113, 114. 6 U. S. ». Kirby (7 Wall., 482). « 143 U.S., 457. ' U. S. v. American Bell Tel. Co. (159 U. S., 548, 549); see also Brewer v. Blougher (14 Pet., 198). « U. S. V. Freeman (3 How., 656) 12 statutory Construction. INTRODUCTION. (VI, B.) 1899, were construed to include passed assistant surgeons, in order to effectuate the intent of the law.* These principles must be cautiously applied, and can not be extended to the point where, under the guise of construction, the power of legislation is attempted to be exercised. The cases in which the letter of the statute is not deemed controUing "are few and exceptional, and only arise where there are cogent reasons for beheving that the letter does not fully and accurately disclose the intent. No mere omission, no mere failure to provide for contingencies, which it may seem wise to have specifically provided for, justify any judicial addition to the language of the statute." ^ " It is not for the courts to tamper with the words of a statute, or by a stramed construction of legislative enact- ments, the language of which is clear and explicit, to accomplish results not contemplated by Congress."^ Where a provision is omitted from a statute, either by design, mistake, or oversight of the legislature, the courts have no power to supply it where the language used is clear and unambiguous.* " It is better to submit to a temporary inconvenience than to set the laws all afloat by laying down a canon of construction which leaves the plain words and seeks to speU out, or guess at, the supposed intent of the legislature, contrary or supple- mentary to that which is clearly embodied in the words it has used." ^ The principle that a thing may be within the intent of the law, though without the letter, does not warrant includmg a thing which has been omitted by Congress, because of the conjecture that, had the case been foreseen. Congress would have embraced it within the intent.^ Accordingly, where the law empowered the Secretary of the Navy to remit or mitigate the sentence imposed by any Tiaval court-martial, although the statute was plainly intended to confer upon the Secretary authority over all sentences imposed by courts-martial upon persons in the naval service under his jurisdiction, it was decided that he was without authority to remit or mitigate the sentence imposed by an Army court-martial upon an enlisted man of the Marine Corps while serving with the Army but restored to naval jurisdiction prior to execution of the sentence; and that action of the President in such case was necessary.' With reference to criminal cases, it has been held that " it would be danger- ous, indeed, to carry the principle that a case which is within the reason or mischief of a statute is within its provisions, so far as to punish a crime not enumerated in the statute because it is of equal atrocity or of kindred character with those which are enumerated."* 1 U. S. V. Fahrenholt (206 U. S., 226). 2 U. S. V. Goldenburg (168 U. S., 103). 3 Bate Refrigerating Co. v. Sulzberger (157 U. S., 37). < Folsom V. U. S. (160 U. S., 127); Hobbs v. McLean (117 U. S , 567, 579); Leavenworth, etc., R. Co. v. U. S. (92 U. S., 733, 751); Kennedy v. Gibson (8 Wall., 498, 506); U. S. v. Union Pac. R. Co. (91 U. S., 72, 85); 26 Op. Atty. Gen., 537; see also 9 Op. Atty. Gen., 50; 13 Op. Atty. Gen., 460. 6 Merritt v. Welsh (104 U. S., 702). 6 27 0p. Atty. Gen., 136. ' File 26267—127, Nov. 10, 1914. 8 U, S. V. Wiltberger (5 Wheat., 76, 96). 13 (VI, C.) INTRODUCTION. Statutory Construction. C. HOW LEGISLATIVE INTENT IS TO BE ASCERTAINED. As already stated, the legislative intent is to be ascertained from the law itself, whore the language is clear and unambiguous. In cases where the lan- guage used is ambiguous, and only in such cases, resort may be had to extrinsic aids to interpretation, which will be briefly considered below, under Section VI, D, "Aids to interpretation of ambiguous statutes." First as to the princi- ples which govern in ascertaining the legislative intent from the law itself: 1. Law must be coiistrued as a whole. — " In the exposition of statutes the esta])hshed rule is that the intention of the lawTiiaker is to be deduced from a view of the whole statute, and every material part of the same." ^ "The whole statute must be examined. Single sentences and smgle provisions are not to be selected and construed by themselves, but the whole must be taken together." ^ "Every part of a statute must be construed in connection with the whole, so as to make aU the parts harmonious if possible, and to give meaning to each." ^ It may be necessary to consider every par.t of an act in its effect upon other parts in order to arrive at a construction that will be effective.^ In case of repugnancy between two provisions in a statute, the one general and the other specific, the latter will prevail, unless a contrary intent is plain.^ 2. Effect to be given to every word. — Every word used in a statute is presumed to have a separate and independent meaning of its own.^ Congress is not to be presumed to have used words for no purpose.'' Accordingly words can not be construed as redundant and rejected as surplusage where it is pos- sible to give them full effect,* but may be rejected when they can not be given effect.^ And this rule requires that effect be given to every word of a penal statute. ^° " It is a cardinal rule of statutory construction that significance and effect shall if possible be accorded to every word." ^^ But where, from excess of caution or in accordance with custom, several words of similar import have been used in the same connection in a statute, as is frequently the case, it is not required that some new meaning be given to the superfluous words, the general rule being inapplicable under such circumstances. ^^ And it is not necessary to give every word its exact signification as an independent word, if that signification be inconsistent with other words and other parts of the statute, the first and controlhng rule being to ascertain what the legislature intended, as indicated by all the provisions on the same subject matter, har- moniously construed as far as possible; and accordingly single words must sometimes yield their restricted meaning to a more general signification and greater comprehensiveness, if necessary to carry out the manifest wiU of the lawmakuig power. ^^ 3. Words presumed to have been used in their ordinary sense. — Where the language of a statute is free from ambiguity, words must be given their usually accepted meaning.^^ "The popular or received miport of words 1 Kohlsaat v. Murphy (96 U. S., 153, 159). 8 Stephens v. Cherokee Nation (174 U. S., 445). 2 PoUard v. BaUey (20 Wall., 520, 525). » 21 Op. Atty. Gen., 286, 288. 3 Washington Market Co. v. Hoflman (101 U. S., 112, 115). "U.S. v. Gooding (12 Wheat^ 460, 477). * File 111:50-26, page 5, July 31, 1909. " Washington Market Co. v. Hoffman (101 U. S., 115). 6 36 Cyc, 1130. 12 u. S. v. Bassett (2 Story, 404; 24 Fed. Cas. No. 14539). 6 Murphy v. Utter (186 U. S., 95, HI). »3 Farden v. U. S. (13 Ct. Cls., 347). 'Piatt V. Union Pac. R. Co. (99 U. S., 48, 58) i« Merchants Nat. Bank v. U. S. (42 Ct. Cls., 6). u (VI, C.) INTRODUCTION. Statutory Construction. furnishes the general rule for the interpretation of public laws as well as of pri- vate and social transactions." ^ Wlien a statute uses a technical term which is known and its meaning clearly ascertained by the common or civil law, from whichever it is taken, it is proper to refer to that law for its meaning.^ The term "beyond seas" in a statute must receive the legal interpretation usually given to it, unless there be an indication to the contrary; ^ and the word "enlist- ment, " where used in its technical significance in an act relating to the Army, does not apply to a cadet, who is not an enlisted man.^ Where the legislature makes use of a word having a well-defined technical meaning, it is presumed to use the word in its technical sense in the absence of an indication to the contrary in the statute.* The general rule is that the same word is used with the same meaning wherever it occurs in an act; ^ but where necessary to harmonize the different provisions of a statute, a different meaning may be given to the same word in different parts of a statute.® The same words as used in different statutes may have different meanmgs; but the presumption is otherwise.^ "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly m color and content according to the circum- stances and the time in which it is used."* 4. General words may be restricted by context. — "There is no mode by which the meaning affixed to any word or sentence, by a deliberative body, can be so well ascertained as by comparing it with the words and sen- tences with which it stands comiected." ^ This principle is known as "noscitur a sociis," which means the interpretation of a word or phrase by reference to other words with which it is associated. '° The most common application of this principle occurs where several classes of persons or things are specifically enumerated in a statute, and immediately following and classed with such enumeration the clause embraces ''other" persons or things, as is done, for example, throughout the Articles for the Government of the Navy." In such cases the particular application of this principle is known as the ''ejusdem generis" rule, in accordance with which the word "other" will generally be read as "other such hke," and persons and things therein comprised thus restricted to the same genus or class as those specifically enumerated instead of being extended to include such as are of a superior or different quality or class. ^^ Thus, in an early case, it was held by the Supreme Court that the words " other place" appearing in the phrase " any other place or district of country, under the sole and exclusive jurisdiction of the United States," did not include a vessel of the Navy, which was not of similar character with the places previously enumerated which were "objects ' Maillaxd v. Lawrence (16 How., 251, 261). 2 Irwin V. U. S. (38 Ct. Cls., 87). 3 Babbitt's case (16 Ct. Cls., 202); and see 15 Op. Atty. Gen., 645; 28 Op. Atty. Gen., 87. < Ilawley v. Diller (178 U. S., 476, 488). 5 In re Jackson (40 Fed. Rep., 374); Babbitt's case (16 Ct. CIs., 212). 6 Cherokee Nation v. Georgia (5 Pet., 1, 19; compare U. S. v. St. Anthony R. Co., 192 U. S., 524). ' File 9736-18, pige 2, "Addenda" ; Greenleaf v. Goodrich (101 U. S., 278, 281). 8 Towne v. Eisner, 245 U. S., 418, 425; 31 Op. Atty. Gen., 279; Lamar v. V. S., 240 U. S., 60, 65; see also Hendee v. U. S., 124 U. S., 309, and U. S. v. Mouat, 124 U. S., 303. 9 Wheaton v. Peters (8 Pet., 591, 661). 10 Virginia v. Tennessee (148 U. S., 503, 519); U. S. v. Rodgers (150 U. S., 249, 278); Stoutenburgh v. Hennick (129 U.S., 141, 147); HoUender v. Magone (149 U. S., 586); American Fur Co. v. U. S. (2 Pet., 358, 367); 21 Op. Atty. Gen., 124. 11 Section 1624, Revised Statutes; sec C. M. O. No. 21, 1910, p. 10. " File 24482-34, May 1, 1911, page 14; United States v. United Verde Copper Co. (196 U. S., 207); Merchants Nat. Banki;. U. S. (42 Ct. Cls., 6). 15 (VI, C.) INTRODUCTION. Statutory Construction. ill their nature fixed and territorial"; and accordingly, that under the statutes then in force a Federal court did not have jurisdiction to punish the crime of murder committed on board a war vessel of the United States in Boston harbor.^ This prmciple, like all others relating to the interpretation and construc- tion of statutes, is not inflexible; its purpose is to assist in arriving at the legislative intent, and where the application of the principle would fail to accomplish this purpose it is rejected, and general words may be given a more comprehensive effect than specific where such appears to be the mten- tion of the legislature.^ 5. Interpretation of miscellaneous words. — ^The Kevised Statutes contains definitions of various words which may be apphed in interpreting the provisions of Federal statutes. For example, it is provided that the word "person" may include partnerships and corporations; that the plural number may include the singular, and vice versa; that the mascufine gender may include females; that reference to any officer may include any pereon authorized by law to perform the duties of such office, etc.^ In addition, under judicial decisions the word "or" may be construed as "and";* and the word "and" may be construed as "or";^ and even in a penal statute, the words "fine or imprisonment" may under certam circum- stances be read "fine and imprisonment." ^ But these words are not to be construed otherwise than according to their ordinary and well-understood meaning except where it is necessary to effectuate the plain intent of the law.' As to the interpretation of the words "may" and "shall," see below (VI, E, 5), "Mandatory and directory statutes." 6. The expression of one thing is the exclusion of another. — Another rule of value in interpreting statutes is that where certain classes of persons or things are specifically included or specifically excepted in a statute, this is to be understood as meaning that the legislature did not intend to include or except any class of persons or thmgs not specifically mentioned. The rule is known in law as "expressio unius est exclusio alterius," which means that "the expression of one thing is the exclusion of another." This rule is also subject to the paramount consideration of effectuating the legislative intent, and was accordingly not appUed in the case of the Holy Trinity Church akeady noted.^ 7. A prospective operation is to be given to a statute unless the legislative intent to the contrary is expressed in unambiguous terms or is clearly imphed.^ Thus a statute intended, as indicated by its title, "to reorganize and increase the efficiency of the personnel of the Navy," should not be con- 1 U. S. V. Bevans (3 Wheat., 336, 390) s Cutler V. Kouns (110 U. S., 720, 728); U. S. v. Briggs (9 How., 351); Faw v. Marsteller (2 Cranch, 10); Stevens v. U. S. (41 Ct. Cls. 344), noted under section 284, Revised Statutes; see also 30 Op. Atty. Gen., 294, 295, and authorities there cited. • See sections 1 to 6, Revised Statutes. < Union Ins. Co. v. U. S. (6 Wall., 763); Converse v. U. S. (26 Ct. Cls., 6). 6 18 Op. Atty. Gen., 540; Long v. Palmer (16 Pet., 69). 'Carter v. McClaughry (183 U. S., 392, 393); see also U. S. v. Shawls (2 Paine 166, 28 Fed. Cas. No. 16448); Rioe v. U.S. (53 Fed. Rep., 912). ' U. S. V. Haun (26 Fed. Cas. No. 15329); 18 Op. Atty. Gen., 540; Rice v. U. S. (53 Fed. Rep., 912). 8 See above, section VI, B, 6. « Jasper v. U. S. (43 Ct. Cls., 368, 371, citing U. S. v. Heth, 3 Cranch, 399, 413; Chew Heong v. U. S., 112 U. S., 536, 559; White w. U. S., 191 U. S., 545; see also Reynolds v. McArthur, 2 Pet.434; 19 Comp. Dec, 487; U. S. v. Burr., 159 U. S., 82, Warren v. Etna Ins. Co., 29 Fed. Cas. No. 17206; Auffm'ordtv. Rasin,102U.S.,622; 15 Op. Atty. Gen., 222, 259; 9 Op. Atty. Gem., 437). 16 statutory Construction. INTRODUCTION. (VI, D.) strued so as to give a gratuity to certain officers for past services.' "Even though the words of a statute are broad enough in their literal extent to com- prehend existing cases, they must yet be construed as applicable only to cases that may hereafter arise, unless the language employed expresses a contrary intention in unequivocal terms. "^ 8. Controlling purpose of statute prevails in its construction. — A secondary purpose, which from the nature of things would defeat the con- trolUng purpose of a statute, will not be ascribed to Congress, especially when it rests on mere implication.^ The specific intent of the legislature is to be found in the leading provisions of a statute.^ Where the principal purpose of a statute is to provide compensation to a person damaged by the wrongful act of another, and not to punish the wrongdoer, it is not to be construed as penal.^ Similarly, where a statute was intended primarily to increase the efficiency of the Navy, and incidentally to rid the service of officers unable to qualify for promotion because of their own misconduct by providing that such officers should be discharged with not more than one year's pay, the controlling purpose of the law should not be defeated by giving it a strict construction against the Government and in favor of a particular officer.^ D. AIDS TO INTERPRETATION OF AMBIGUOUS STATUTES. Where the language of a statute is ambiguous or susceptible of two mean- ings, certain established rules may be availed of in endeavoring to arrive at the legislative intent. But m connection with the application of all such rules it must be borne in mind that their purpose is to solve real and not fanciful ambiguities, and that they may not be invoked as a means of escape from the plain language of a statute or for the purpose of raising a doubt where none in fact exists. 1. The title of a statute, although not properly a part of the law, may be resorted to in case of doubt as a source of information in interpreting lan- guage used in the act. Thus the word "mihtary" in a broad sense may refer both to the land and naval forces; but where a statute provided for the arrest of deserters from the military service, the Attorney General held that it could not be construed to include deserters from the Navy, because the title of the act showed plainly that the law was intended to apply only to the Army, and hence that the word "military" was used in its more restricted sense.' Simi- larly the title of the Navy personnel act of March 3, 1899, was referred to by the courts as indicating that certain provisions contained in the act were intended to operate prospectively only and not to give a gratuity to certain officers for past services.^ But where the language of an act is plain, it may be applied to cases not comprehended by its title; as, for example, an act 1 White's case (37 Ct. Cls., 365; 191 U. S., 545; see also 17 Op. Atty. Gen., 557); U. S. v. Moore (95 U. S., 762). 2 Twenty Per Cent cases (20 Wall., 179, 187); see also file 8627-189, May 12, 1915; but see 7 Comp. Dec, 844, noted under section 1407, Revised Statutes. » Denver Pac. R. Co. v. U. S. (12 Ct. Cls., 237, 259, 681). < The Paquete Habana (175 U. S., 677, 681). s Brady v. Daly (175 U. S., 148); Johnson v. Southern Pac. Co. (196 U. S., 1). » See note to act Aug. 5, 1882, 22 Stat., 286; file 26260—1392, June 29, 1911; see also Street v. U. S. (133 U. S., 300). ' File 5621, Nov. 17, 1906. [The arrest of deserters from the naval service is now specifically provided for by act Feb. 16, 1909, sec. 15, 35 Stat., 622.] As to interpretation of the word "military," see file 26509-201:1, May 26, 1917; 24 Comp. Dec, 788. 8 White's case (37 Ct. Cls., 365, affirmed, 191 U. S., 550); see also Holy Trinity Churcli v. U. S. (143 U. S., 467); Robinson V. U. S. (42 ct. Cls., 52); 19 Op. Atty. Gen. ,616. IT (VI, D.) INTROD UCTION. Statutory Construction. wliich by its title applied to "American seamen," but which was nevertheless held to extend to fi)reio;nei"s.' And even when the meaning of a statute is doubtful it has been said that tlie title lias little weight in its construction. ^ 2. Marginal notes in Revised Statutes. — As already explained, marginal notes are incorporated in the Revised Statutes in accordance with instructions of Congress, indicating the laws from which the different sections of the revision were compiled. It has been held that, in case of ambiguity in the language of the revision, these notes may be consulted as an aid to con- struction, and that resort may be had to the original statutes to which they refer.' 3. Conditions existing at the time the law was enacted. — In cases of doubtful construction it is safe guidance for a court to look into the con- ditions surrounding the subject matter of the legislation at the time the act was passed and the situation as it existed and as it was pressed upon the atten- tion of Congress.* The court should endeavor to place itself as far as possible in the light that the legislature enjoyed, to look at things as they appeared to it, and to discover the purpose of the law from the language used in connection with attending circumstances. ^ "The general rule is that laws speak from the date of their enactment," ® and they should accordingly be construed as of the time of their enactment.'^ Thus where Congress authorized the appoint- ment, from the Navy Dental Reserve Corps, of "dental corps officers of per- manent tenure," the language quoted was construed to mean that such appoint- ments were to be made to the grade of acting assistant dental surgeon, which was the only grade in the regular Dental Corps at the time the law was passed, as the grade of assistant dental surgeon was not to come into existence until more than two years later. ^ 4. Reasons for the enactment of the law. — The evil or mischief which the law was designed to remedy is also a proper subject for consideration in arriving at the legislative intent in case of doubtful language.^ It is one of the oldest and best recognized principles of construction that "the preexisting law and the reason and purpose of the new enactment are considerations of great weight." *" ''There is no better way of discovering its true meaning when expressions in it are rendered ambiguous by their connection with other clauses than by considering the necessity for it and the causes which induced its enact- ment." " 5. Legislative history. — In arriving at the meaning of a statute where the proper construction is doubtful, it is always proper to consider the history of the statute and the different steps taken in the enactment of the law as dis- 1 Patterson v. Bark Eudora (190 U. S., 169, 172, 173). » Hadden ti.The Collector (5 WaU., 107). » Barrett v. U. S. (169 U.S., 218,227, 22S); U. S. v. AverUl (130 U. S.,335, 338); U. S. v. Lacher (134 U. S.,626, 627); U. S. V. Hirsch (100 U. S., 33); Hamilton v. Rathbone (175 U. S., 414, 420); Merchants Nat. Bank v. U. S. (42 Ct. Cls., 6); see also VI, E, 1, "Revised Statutes," below. < Clark's case (37 Ct. Cls., 60); U. S. v. Smith (197 U. S., 386); Holy Trinity Church v. U. S. (143 U. S., 457). 5 File 26260-1392, June 29, 1911, p. 5; 27 Op. Atty. Gen., 78; Piatt v. Union Pac. R.Co. (99 U. S., 48,63); Dewey v. U.S. (178 U.S., 510, 520); HamQton v. Rathbone (175 U. S., 414); Holy Trinity Church v. U. S. (143 U. S., 457). «25 Op. Atty. Gen., 299; file 13707—38:9. ' Irwin V. U. S. (38 Ct. Cls., 87). 8 File 13707-38: 9. 9 Holy Trinity Church v. U. S. (143 U. S.,457); Wilson v. Mason (58 Fed. Rep., 768); 29 Op. Atty. Gen.,344; 19 Comp» Dec., 847; file 20200-1392, June 29, 1911; C. M. O., 4-1913, pp. 6, 8. 10 27 Op. Atty. Gen., 78; Hamilton w. Rathbone (175 U. S.,419); Merchants Nat. Bank u. U.S. (42 Ct. Ois., 6). » Heydenfeldt v. Daney, etc., Co. (93 U. S., 634, 638). 18 statutory Construction. INTRODUCTION. (VI, D.) closed by the legislative records.^ This includes the reports of committees ^ and the introduction of amendments ; ^ but the opinion of the draftsman of the law can not be considered/ except as it indicates the existing conditions and purpose of the law as it was pressed upon the attention of Congress. ^ 6. Debates in Congress. — The views expressed by individual Members of Congress in the course of debates "are not appropriate sources of informa- tion from which to discover the meaning of the language of a statute passed by that body " ; ^ the law as it passed being the will of the majority of both Houses.^ "It is impossible to determine with certainty what construction was put upon an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did, and those who spoke might differ from each other." ^ Frequently the arguments of individual members can hardly be con- sidered even as the dehberate views of the persons who made them ; ^ ' ' nor have there been want ing illustrious instances of great minds which, after they had, as legislator or commentators, reposed upon a short and hasty opinion, have deliberately withdrawn from their first impressions when they came upon the judgment seat to reexamine the statute or law in its full bearings." ^° But it has been held that ' ' the statements of those who had charge of the law, made to the legislative body passing it, as to its meaning and purpose, are always competent." " And debates may be referred to for information as to the existmg conditions and the evil or mischief which the law was intended to remedy,^^ or to confirm a construction otherwise arrived at by the court.*^ 7. Prior enactments on the same subject may be consulted in cases of doubt in an effort to ascertain the legislative intent. Wliere the subject of a prior act is identical with, and not merely similar to, the law mider consid- eration, the two acts are said to be ''in pari materia" " and should be con- strued together unless the language of the act to be construed is plain and free of all uncertainty.^^ Several statutes on the same general subject, passed at different times by successive legislatures, without express repeal of former provisions, should be so construed that all parts of each shall retain their force and effect, except where it is apparent that by the later acts substantial changes were intended. 1 U. S. V. Burr (159 U. S., 78, 85); Blake v. Banks (23 Wall., 307); but see Andrews v. Hovey (124 U. S., 716). 2 Austin V. U. S. (25 Ct. Cls., 454); Holy Trinity Church v. U. S. (143 U. S., 457, 464); Bate Refrigerating Co. v. Sulz- berger (157 U. S., 1, 42); Chesapeake, etc., Tel. Co. v. Manning (186 U. S., 238, 246); Binns v. U. S. (194 U. S., 486, 495); Dubuque, etc., R. Co. v. Litchfield (23 How., 87). 3 27 Op. Atty. Gen., 437; file 26260-1392, June 29, 1911; Blake v. National Banks (23 Wall., 307). < File 24482-34, May 1, 1911. 6 19 Comp. Dec, 847; Jennison v. Kirk (98 U. S., 460). 6U. S. V. Freight Assn. (166 U. S., 318); 27 Op. Atty. Gen., 78; 9 Op. Atty. Gen., 472; compare 9 Op. Atty. Gen., 438 ; 8 Op. Atty. Gen., 230. ' Aldridge v. Williams (3 How., 23). 8 U. S. V. Trans-Missouri Freight Assn. (166 U. S., 290, 318). 9 Downes v. Bidwell (1S2 U. S., 244, 254). 10 Mitchell v. Great Works Milling, etc., Co. (2 Story, 653: 17 Fed. Cas. No. 9662). " Ex parte Farley (40 Fed. Rep., 69); 27 Op. Atty. Gen., 78; 26 Op. Atty. Gen., 254. 12 Holy Trinity Church v. U. S. (143 U. S., 465); American Net & Twine Co. v. Worthington (141 U. S., 473); U. S. V. Wilson (58 Fed. Rep., 768). 13 Hepburn v. Griswold (8 Wall., 610); Untermeycr v. Frcund, (50 Fed. Rep., 80); Northern Pac. R. Co. v. U. S. (36 Fed. Rep., 285); U. S. t). Union Pac. R. Co., (37 Fed. Rep., 554); In re Secy, of Treasury (71 Fed. Rep., 513;) In re Musser (49 Fed. Rep., 832); Wilson v. Spaulding (19 Fed. Rep., 307); Walton v. U. S. (24 Ct. Cls., 380); 16 Op. Atty. Gen., 379. " Louisiana v. Mississippi (202 U. S., 1, 41); United Soe. ti. Eagle Bank (7 Conn., 456, 469); see also U. S. v. Freeman (3 How., 556). 15 Barnes v. PhUadelphia, etc., R. Co. (17 Wall., 302). 19 statutory Construction. INTRODUCTION. (VI, D.) Incidental clijuiges will not be imputed unless clearly intended by the legisla- tors and within the scope of the particidar matters considered by them. Wliat is to be determined is the will of the legislature, and that will as expressed in the latest enactment is paramount; but on all matters in which the will of the latest legislature has not been clearly manifested, that of all former legislatures must stand.' Prior enactments on the same subject may be consulted in order to ascer- tam the legislative intent, even though such prior acts have been repealed,^ 8. Implied repeals never favored. — "It is a fundamental and familiar rule that a repeal by implication is never held to take place unless there is an irreconcilable repugnancy between the earher and later acts, and that if, by any permissible construction, both may stand and be enforced, there is no such repeal." ^ Every doubt should be resolved agauist a construction wliich would work an unplied repeal, and it is not to be admitted unless the imphca- tion is so clear as to be equivalent to an explicit declaration.^ "It nmst not be supposed that the legislature intended by a later statute to repeal a prior one on the same subject, unless the last statute is so broad in its terms and so clear and explicit m its words as to show that it was intended to cover the whole subject, and, therefore, to displace the prior statute;"^ or "unless its provisions are so clearly repugnant as to imply a negative." * "Statutes which apparently conflict with each other are to be reconciled, as far as may be on any fair hy- pothesis;" ' " if both can exist, the repeal by implication wiU not be adjudged. " * "The general presumption is that if a repeal was mtended it would have been expressly declared; and such is the usual practice of legislation." ® Where two acts are in apparent conflict, and one of the acts is general and the other special, the rule is that the special act wiU be construed as an excep- tion to the provisions of the general, and both acts thus given effect even though the special act be earher in date.^" 9. Statutes not operative against the Government. — It is "the settled rule of construction that the sovereign authority of the country is not bound by the words of a statute, unless named therein, if the statute tends to restrain or diminish the powers, rights, or interests of the sovereign;" " "unless its language requires that such meaning shall be given to it." ^^ Thus a statute prohibiting the transportation of merchandise from one port in the United States to another port in the United States in foreign vessels was held not to apply to the transportation of coal belonging to the Goveriunent and needed » Wilcox 0. U. S. (12 Ct. Cla., 495, 502); Mills v. Scott (99 U. S., 25, 28); file 13707-38:9. 2 Bank v. Collector (3 Wall., 495, 513); Ex parte Crow Dog (109 U. S., 556, 561); InreHohorst (150 U. S., 653, 660); Knowlton v. Moore(178 U. S., 41). » 29 Op. Atty. Gen., 110; see also 24 Op. Atty. Gen., 562; 25 Op. Atty. Gen., 113; 23 Op. Atty. Gen., 411. < Osborn v. Nicholson (13 Wall., 654, 662). • Frost V. Wenie (157 U. S., 46, 58). « Welch V. Cook (97 U. S., 541, 543); U. S. v. Gillis (95 U. S., 407, 416). ' Deals V. Hale (4 How., 37, 51); and see 15 Op. Atty. Gen., 639, where it is said that tliis rule must be applied so as to prevent any unnecessary disturbance of regulations by subsequent statutes. 8 Johnson u. Browne (205 U.S., 309, 321); compare Eckloff ». D. C. (135 U. S., 242); file 13707-36, Sept. 30, 1913. But, " to so legislate as to prevent the application of previous legislation is to repeal the previous legislation by implication " (22 Op. Atty. Gen., 255, 257; compare 32 Op. Atty. Gen. 476). » U. S. V. Cloths (Crabbe, 370, 28 Fed. Cas. No. 16563); 9 Op. Atty. Gen., 47. »»36 Cyc, 1151; Rodgers «;. U. S. (185 U. S., 83); Petri v. Creelman Lumber Co. (199 U. S., 497); U. S. v. Nix (189 U. S.,205). 11 U. S. V. Herron (20 Wall., 251, 255); see also U. S. v. Knight (14 Pet., 301); 26 Op. Atty. Gen., 415; see also Cook County Nat. Bank v. U. S. (107 U. S., 451). i'26 0p. Atty. Gen., 417. 20 statutory Construction. INTRODUCTION. (VI, D.) for the use of the Navy.^ But a tariff act requiring the payment of duty on imports was held to apply to the importation of coal by the Government for the use of the Navy, notwithstanding that the payment of duty by the Govern- ment to itself would amount in effect merely to a bookkeeping transaction; the practice of Congress having been to except the Government specifically from the operation of tariff laws, where such was the intention, and the policy of the law being to encourage American industries.^ "Where the Government is not expressly or by necessary implication included, it ought to be clear from the nature of the mischiefs to be redressed, or the language used, that the Government itseK was in contemplation of the legislature before a court of law would be authorized to put such an inter- pretation upon any statute."^ 10. Objectionable results to be avoided. — The rule is that an act of Congress must be construed as within the powers conferred upon Congress unless in the judgment of the court it is plainly and palpably inconsistent with the Constitution.* Also, where the language used is susceptible of two meanings, it should be so interpreted as to avoid absurd results, inconvenience, injustice, um-eason- ableness, or hardship. But it is only in the case of doubt that such considerations may be taken into account.^ "All laws which derogate from the constitutional authority of the exe- cutive or judiciary, and all laws giving special or unusual powers to indivi- duals, must be construed strictly and according to the narrowest sense of their words. No intention must in such cases be imputed to the lawgiver beyond what is clearly expressed in terms too plain to be misunderstood."^ 11. Construction adopted by Congress.— Congress is presumed to have known what construction has been placed upon language used by it in a statute, and when the same language is used again, in a subsequent statute on the same subject, without any indication of a contrary intent, it should be given the same construction as it received in the former act.'' This rule applies to language which has been construed in decisions of the Supreme Court and Court of Claims,* and also to the construction placed upon a law in practice by the proper administrative officers,^ unless the circumstances are such that Congress could not be presumed to have knowledge of the departmental con- struction.^" 12. Contemporaneous construction by executive departments. — The contemporaneous construction placed upon a law by the officers charged with its administration, where uniform and long continued, will be given great weight by the courts in passing upon a statute so construed, and in case of 1 2G Op. Atty. Gen., 415. 2 26 Op. Atty. Gen., 466. 3 U. S. V. Hoar (2 Mason, 314; 26 Fed. Gas. No. 15373); 16 Comp Dec, 696. < Boske V. Comingore (177 U. S., 459); see also Butler v. White (83 Fed. Rep., 581); U. S. v. Mackenzie (30 Fed. Gas. No. 18313). '■> See above, Section VI, B, 5. 6 9 Op. Atty. Gen., 472. ' Sewing Machine Co.'s case (18 Wall., 553, 584). 8 U. S. V. GiUis (95 U. S., 416); File 26254-50, July 1, 1908; 25 Op. Atty. Gen., 309; but see 15 Comp. Dec., 47. 9 21 Op. Atty. Gen., 410; 21 Op. Atty. Gen., 3.39; 21 Op. Atty. Gen., 352; 15 Op. Atty. Gen., 646; 28 Op. Atty. Gen., 87; Valk V. U. S. (28 Ct. Cls., 241); Jonas v. V. S. (50 Ct. Cls. , 281); U. S. v. Hermanos (209 U. S., 337); U. S. v. Talk (204 U. S., 143); Op. Atty. Gen., Apr. U, 1918, file 26510-1022:12; Schuetze v. U. S. (24 Ct. Cls., 299); 29 Op. Atty. Gen., 436; 17 Op. Atty. Gen., 60; 20 Op. Atty. Gen., 433. " Dollar Sav. Bank v. U. S. (19 WaO., 237). 21 (VI, E.) INTRODUCTION. Statutory Construction. (louhl. will 1)0 controlliiin;.' KspecirtUv will the courts look witii disfavor upon any sudtlcn ohuufjjo whoroby parties who have contracted with the Govern- ment upon the faith of such construction may be prejudiced.- Where such construction of tlie law has received the tacit if not express approval of Con- gress, the court, will not feel at liberty to disregard it although the correctness of such construction "may well be doubted."^ However, "while contempora- neous and long-continued departmental construcHon of an ambiguous statute is entitled to very groat weight, it is quite otherwise where the statute is clear and there is no need for the assistance doi-ivod from that source."* E. CONSTRUCTION OF PARTICULAR STATUTES. 1. Revised statutes. — "A change of language in a revised statute '^ will not change the law from what it was before, unless it be apparent that such was the intention of the legislature."** "The reenacted sections are to be given the same meaning they had in the original statute unless a contrary intention is plainly manifested." ' ' ' Upon a revision of statutes, a different interpretation is not to be given, to them without some substantial change of phraseology — some change other than what may have been necessary to abbreviate the form of the law."^ But "where the language of the Revised Statutes is plain and unambiguous, the granmiatical structure simple and accurate, and the meaning of the whole intelligible and obvious, a court is not at liberty by construction to reproduce the law as it stood before the revision. Whatever palpable modifi- cations, alterations, or changes of preexisting laws may be found in the Revised Statutes are as much in force as any of these provisions." ® 2. Appropriation acts. — The general rule of law is that when Congress makes a specific appropriation for any particular purpose, no more shall be expended lor that purpose than is thus appropriated; and if a general appro- priation applicable to the same purpose would otherwise be available to meet the same expenditure, the specific appropriation operates to repeal in part or supersede the general appropriation and render its use for the specific purpose illegal.^" The rule that a specific appropriation is exclusive, and that another general appropriation is not available for the same purpose, is a rule of administration > Brown v. V. S. (n3 V. S., 568, 571); U. S. v. Moore (95 U. S., 760); U. S. v. Johnston (124 U. S., 236); Heath v. Wal- lace (138 U. S., 582); 8 Op. Atty. Gen., 198; U, S. v. Finnel (185 U. S., 236); Merchants Nat. Bank v. U. S. (42Ct. Cls.,6), Plummer v. U. S. (224 U. S., 137). " It is not so important that the construction of a statute as doubtful as this be exactly what Congress intended, as that a construction, acted on for 20 years, should be upheld" (20 Op. Atty. Gen., 362). "When an act of Congress has, by actual decision or by continued usage and practice, received a eonstmction at the proper department and that construction has been acted on for a succession of years, it must be a strong and pal- pable case of error and injustice that would justify a change in the interprclation to be given to it " (2 Op. Atty. Gen.; 558). ''The ollicers concerned are usually alile men and masters of the subject. Not unfrequently they are the drafts- men of the laws they arc afterwards called upon to interpret" (U. S. v. Moore, 96 U. S., 763). Schell's Exs. v. Fauche (138 U. S., 572); 20 Op. Atty. Gen., 436; 10 Op. Atty. Gen., 296; compare 17 Op. Atty. Gen., 119. 2 U. S. V. Ala. R. Co. (142 U. S., 621); see also 20 Comp. Dec., 182; Comp. Digest, pp. 295, 296; Thurber v. U. S. (40 Ct. Cls., 489); Nelson v. U. S. (41 Ct. Cls., 163); I'lummer v. V. S. (224 V. S., 137, 140, 143). 3 Garlinger v. U. S. (30 Ct. Cls., 477). For further citation of cases see 11 Enc. U. S. Rep., 138-143; and see 1 Fed Stat. Ann. (2d ed.), 78-84; 20 Op. Atty. Gen., 436. < 29 Op. Atty. Gen., 298. '•> This refers to any statute which has been revised by a subsequent enactment, and is not limited to " The Revised Statutes of the United States." • Stewart v. Kahn (11 Wall., 493, 502). ' U. S. V. Le Bris (121 U. S., 278, 280); see also "Marginal notes in Revised Statutes," sec. VI, D, 2, above. 8 McDonald v. Ilovey (110 U. S., 619, 629). » Bowen v. U. S. (14 Ct. Cls., 162; 100 U. S., 508). 10 27 Op. Atty. Gen., 30, 34. 22 statutory Construction. INTRODUCTION. (VI, E.) firmly established by the accountmg branch of the Government ; but there is no such statutory limitation on the use of appropriations. While this rule is a proper one, it may be remarked of it, first, that it operates within a narrow range; second, that the Comptroller recognizes that two appropriations may sometimes be available — ''cumulative" appropriations, as they are called — and, finally, that the Comptroller has noticed certain reasonable limits to the appUcability of the general rule m order to accomplish the evident purpose of Congress. ^ No clause, phrase, or section of an appropriation act ought to be construed as permanent legislation unless such words are used therein as make that pur- pose clear.2 "Annually," "hereafter," and similar words in an appropriation act indicate permanent legislation.^ Permanent legislation contained in an appropriation act becomes effective, where not otherwise specified, imme- diately upon approval of the act.^ 3. Penal laws. — The general rule is that penal statutes are to be strictly construed, which means in effect that the language is not to be extended so as to include persons or things not -clearly withm its terms.^ But in construing penal laws as all others the whole purpose is to effectuate the legislative intent if possible; and therefore it is settled that the rule of strict construction does not require that the purpose be ignored or defeated; it merely means that cases must not be brought withm the provisions of the statute that are not clearly embraced by it. On the other hand, a narrow, technical, or forced construction of words is not to be adopted so as to exclude cases that are obviously witliin its provisions.* The words of a penal statute are to be given their fuU meaning; ^ and effect is to be given to every word used if it can be done without violating the obvious intention of the legislature.^ "While we are bound to give the person accused the benefit of every statutory provision, we are not bound to import words into the statute which are not found there." ^ "In expounding a penal statute the court wiU not extend it beyond the plain meaning of its words," ^° but the rule of strict con- struction is not violated by giving to words the more extended of two meanings where such construction best harmonizes with the context and most fully pro- motes the pohcy and objects of the legislation." 1 26 Op. Atty. Gen., 81, citing 3 Comp. Dec., 71; 6 Comp. Dec., 124; 7 Comp. Dec., 665; 9 Comp. Dec., 259; 10 Comp. Dec., 655; 12 Comp. Dec, 61; 7 Comp. Dec, 142; 4 Comp. Dec, 121; 1 Comp. Dec, 357; 2 Comp. Dec, 59; 8 Comp. Dec, 685; 10 Comp. Dec, 832. 2 27 Op. Atty. Gen., 108; but see 7 Op. Atty. Gen., 306. Vulte's Case (47 Ct. Cls., 324, 327; 233 U. S., 509, 514); file 24501-26, July 11, 1911. 3 U. S. V. Jarvis (26 Fed. Cas. No. 15468); Comp. Dec. May 28, 1908 (87 S. and A. Memo. ,716). « 7 Op. Atty. Gen., 306; Comp. Dec, May 28, 1908 (87 S. and A. Memo., 716); Chance v. U. S. (38 Ct. Cls., 75); see also Arnold v. U S. (9 Cranch, 104, 119); 14 Op. Atty. Gen., 542; 14 Op. Atty. Gen., 681; 10 Comp. Dec, 281; 12 Comp. Dec, 306; 13 Comp. Dec, 429; 14 Comp. Dec, 607; U. S. v. Ewing (140 U. S., 143); file 28500-54, March 5, 1915; file 26254-1729, Mar. 6, 1915; file 26254-1729: 1, Ckimp. Dec, Mar. 10, 1915; file 5942-192, Mar. 12, 1915; and see 30 Op. Atty. Gen., 334; 22 Comp. Dec, 640; 5 Comp. Dec, 782; file 5460-70, Mar. 22, 1915; 26253-364: 1, Mar. 23, 1915; 27 Op. Atty. Gen., 552; file 9644-55, Mar. 22, 1919. '- U. S. V. Lacher (134 U. S., 624). 6 Northern Securities Co. v. U. S. (193 U. S., 197, 358); U. S. v. Wfltberger (5 Wheat., 76); U. S. v. Palmer (3 Wheat., 610, 629); The Emily (9 Wheat., 381, 388). ' U. S. V. Hartwell (6 Wall., 385, 386). 8 U. S. V. Gooding (12 Wheat., 4G0, 477); see file 26260-1392, June 29, 1911. 9 Grin v. Shine (187 U. S., 181, 186). "> U. S. V. Morris (14 Pet., 464, 475); Northern Securities Co. v. U. S. (193 U. S., 197, 358); U. S. v. Wiltberger, (5 Wheat., 76, 95). 11 U. S. ». Hartwell (6 WaU., 385); U. S. v. Winn (3 Sumn., 209, 28 Fed. Cas. No. 16740). 23 (VI, E.) INTRODUCTION. Statutory Construction. 4. Remedial statutes are to l)c liherally construod so as to accomplish the beueficial })iirpose of the legislature to the fullest extent consistent with the language of the law; ' but a statute is not to be so hberally construed as to violate its language.^ 5. Mandatory and directory statutes. — The cjuestion whether or not a statute is mandatory or directory depends upon the intention of the legisla- ture, to be ascertained from a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other.^ "It is well settled that 'may,' in any statute, is to be construed as equivalent to 'shall' or 'must' when the public interests or rights are concerned and when the public or third persons have a right de jure [in law] to claim that the power granted shall be exercised." * ''The general rule is that, where Congress confers a power upon an executive officer which involves the rights or interests of private individuals or the general pubhc, the language used by Congress is to be considered as imposing a duty rather than a discretion." * Thus, a statute providing that the Secretary of the Navy "is hereby author- ized" to furnish a clothing bounty to apprentices on enlistment in the Navy is mandator}'. Wliilc the ordinary meaning of this language is generally per- missive, nevertheless in this case, the object of the statute being to encourage enUstments, it "is to be construed as imposing upon the Secretary of the Navy an imperative obligation and not merely discretionary power." * "Shall" will be construed as "may" where no public or private right is impaired by such construction; but where the public are interested, or where the pubhc or third persons have a legal claim that the act shall be done, it is imperative and wi'l be construed to mean "must." For example, section 1498, Revised Statutes, providing that naval examining boards "shall consist of not less than three officers senior in rank to the officer to be examined," was evidently framed as a protection to officers generally, and is therefore construed as mandatory; hence the proceedings of a board are fatally defective where one of the members was junior to the candidate.^ "The rule of construction of statutory provisions regulating the time, form, and mode of proceeding by courts and public officers is that they are generally to be deemed directory and as intended merely to secure system, uniformity, and dispatch in the conduct of public business. 'Provisions of this character are not usually regarded as mandatory unless accompanied by negative words, importing that the acts required shall not be done in any other manner or time than designated.'" * 1 Jones V. Guaranty, etc., Co. (101 U. S., 622, 626); Beley v. Naphtaly (169 V. S., 353, 359, 360); Ramsey v. Tacoma Land Co. (196 U. S., 360, 362); 20 Comp. Dec., 380. 2 U. S. p. St. Anthony R. Co. (192 U. S., 524, 540). 3 File 262CO-1244, April 14, 1911; see also 8 Op. Atty. Gen., 112. « 25 Op. Atty. Gen., 270; file- 26539-551. » File 26260-1244, AprU 14, 1911; see also 8 Op. Atty. Gen., 112. « In re Stein, 105 Fed. Rep., 749, 750, quoting French v. Edwards (13 Wall., 506-511); see also Indianapolis, etc., R. Co. V. Horst (93 U. S., 301); AVest Wisconsin R. Co. v. Foley (94 U. S., 100); Labadio v. U. S. (31 Ct. Cls., 436); Woolridgey. McKenna (8 Fed. Rep., 650); Thomas's Motion (15 Ct. Cls., 335). 24 PART 1. THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 25 HISTORICAL NOTE. [Compiled principally from notes to Constitution in Revised Statutes of the United States, second edition, and S. Doc. No. 427, 66th Cong., 3d sess.j The origfinal Constitution. — In May, 1785, a committee of Congress made a report recommending an alteration in the Articles of Confederation, but no action was taken on it, and it was left to the State Legislatures to pro- ceed in the matter. In January, 1786, the Leg- islature of Virginia passed a resolution pro\dd- ing for the appointment of five commissioners, who, or any three of them, should meet such commissioners as might be appointed in the other States of the Union, at a time and place to be agreed upon, to take into consideration the trade of the United States; to consider how far a uniform system in their commercial regu- lations may be necessary to their common in- terest and their permanent harmony; and to report to the several States such an act, relative to this great object, as, when ratified by them, will enable the United States in Congress effectually to provide for the same. The Vir- ginia commissioners, after some correspondence, fixed the first Monday in September as the time, and the city of Annapolis as the place for the meeting, but only four other States were repre- sented, viz: Delaware, New York, New Jersey, and Pennsylvania; the commissioners ap- pointed by Massachusetts, New Hampshire, North Carolina, and Rhode Island failed to attend. Under the circumstances of so partial a representation, the commissioners present agreed upon a report (drawn by Mr. Hamilton, of New York), expressing their unanimous con- viction that it might essentially tend to ad- vance the interests of the Union if the States by which they were respectively delegated would concur, and use their endeavors to procure the concurrence of the other States, in the appointment of commissioners to meet at Phila- delphia on the second Monday of May following, to take into consideration the situation of the LTnited States; to devise such fmther pro\'isions as should appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the LTnion; and to report such an act for that pm-pose to the United States in Congress assembled as, when agreed to by them and afterwards confirmed by the Legislatures of every State, would effectu- ally provide for the same. Congress, on the 21st of February, 1787, adopted a resolution in favor of a convention, and the Legislatures of those States which had not already done so (with the exception of Rhode Island) promptly appointed delegates. On the 25th of May, seven States ha\'ing con- vened, George Washington, of Virginia, was unanimously elected President, and the con- sideration of the proposed constitution was commencod. _ On the 17th of September, 1787, the Constitution as engrossed and agreed upon was signed by all the members present, except IVIi-. Gerry, of Massachusetts, and Messrs. Mason and Randolph, of Virginia. The presi- dent of the convention transmitted it to Con- gress, with a resolution stating how the proposed Federal Government should be put in operation, and an explanatory letter. Congress, on the 28th of September, 1787, directed the Constitu- tion so framed, with the resolutions and letter concerning the same, to "be transmitted to the several Legislatures in order to be submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the resolves of the convention." On the 4th of March, 1789, the day which had been fixed for commencing the operations of Government under the new Constitution, it had been ratified by the conventions chosen in each State to consider it, as follows: Dela- ware, December 7, 1787; Pennsylvania, De- cember 12, 1787; New Jersey, December 18, 1787; Georgia, January 2, 1788; Connecticut, January 9, 1788; Massachusetts, February 6, 1788; Marvland, April 28, 1788; South Caro- lina, May'2.3, 1788; New Hampshire, June 21, 1788; Virginia, June 26, 1788; and New York, •luly 26, 1788. The President informed Congress, on the 28th of January, 1790, that North Carolina had ratified the Constitution November 21, 1789; and he informed Congress on the 1st of June, 1790, that Rhode Island had ratified the Con- stitution May 29, 1789. Vermont, in conven, tion, ratified the Constitution January 10, 1791- and was, by an act of Congress approved Feb- rtiary 18, 1791, "received and admitted into this Union as a new and entire member of the United States." The first ten amendments to the Constitu- tion of the United States [commonly known as the "Bill of Rights"] were proposed to the legislatm-es of the several States by the First Congress, on the 25th of Septenaber, 1789. They were ratified by the following States, and the notifications of ratification by the governors thereof were successively communi- cated by the President to Congress: New Jersey, November 20, 1789; Maryland, De- cember 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; Pennsylvania, March 10, 1790; New York, March 27, 1790; Rhode Island, June 15, 1790; Vermont, November 3, 1791, and Virginia, December 15, 1791. There is no evidence on the journals of Congress that the legislatines of Connecticut, Georgia, and Massachusetts ratified them. The eleventh amendment to the Constitu- tion of the United States was proposed to the legislatiu"es of the several States by the Third Congi-ess on the 5th of March, 1794; and was 54641°— 22- 27 Historical Note. PL 1. THE CONSTITUTION. doclared in a message from the Prosidont to Congress, dated th(> Stli of January, 179S, to have been ratified by the k'gislatures of three- fourths of the States. The twelfth amendment to the Constitu- tion of the I'uitcd Slates was proposed to the U'gbUitures of llio several ytat(>s l)y the Eighth Congress, on tlie 12th of December, 1S03, in lieu of the original third paragraph of the fust section of the sr cond artide; and was declared in a proclamation of the Secretary of State, dated the 2oth of Sept<>mber, 1804, to have been rati lied by the K'gislatures of three-fourths of the States. The thirteenth amendment to the Con- stitution of the United States was proposed to the legislatures of the several States by the Thirt}-eighth Congress, on the 1st of February, 1865, and was declared, in a proclamation of th(^ Secretary of State,, dated the 18th of December, 1865, to have been ratified by the legislatures of twenty-seven of the thirty-six States, viz; Illinois, Rhode Island, Michigan, Maryland, New York, West Virginia, Maine, Kansas, Massachusetts, Pennsylvania, Virginia, Ohio, Missouri, Nevada, Indiana, Louisiana, Minne- sota, Wisconsin, Vermont, Tennessee, Arkansas, Connecticut, New Hampshire, South Carolina, Alabama, North Carolina, and Georgia. The fourteenth amendment to the Con- stitution of the United States was proposed to the legislature's of the several States by the Thirty-ninth Congress, on the 16th of June, 1866. On the 21st of July, 1868, Congress adopted and transmitted to the Department of State a concurrent resolution declaring that "the legislatures of the States of Connecticut, Tenijessee, New Jersey, Oregon, Vermont, New York, Ohio, Illinois, West Virginia, Kansas, Maine, Nevada, Missouri, Indiana, Alinnesota, New Hampshire, Massachusetts, Nebraska, Iowa, Arkansas, Florida, North Carolina, Ala- bama, South Carolina, and Louisiana, being three-fourths and more of the several States of the Union, have ratified the fourteenth article of amendment to the Constitution of the United States, duly proposed by two-thirds of each House of the Thirty-ninth Congress: Therefore Resolved, That said fourteenth article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State." The Secretary of State accordingly issued a procla- mation, dated the 28th of July, 1868, declaring that the proposed fourteenth amendment had been ratified, in the manner hereafter men- tioned, by the legislatures of thirty of the thirty- six States, viz: Connecticut, June 30, 1866; New Hampshire, July 7, 1866; Tennessee, July 19, 1866; New Jersey, September 11, 1866 (and the legislature of the same State passed a reso- lution in April, 1868, to withdraw its consent to it); Oregon, September 10, 1866; Vermont, November 9, 1866; Georgia rejected it Novem- ber 13, 1860, and ratified it July 21, 1868; North Carolina rejected it December 4, 1866, and ratified it July 4, 1868; South Carolina rejected it December 20, 1866, and ratified it July 9, 1868; New York ratified it January 10, 1867; Ohio ratified it January 11, 1867 (and the legislature of the same State passed a resolu- tion in January, 1868, to withdraw its consent to it) ; Illinois ratified it January 15, 1867 ; West Virgina, January 16, 1867; Kansas, January 18, 1867; Maine, January 19, 1867; Nevada, Janu- ary 22, 1867; Missouri, January 26, 1867; Indi- ana, January 20, 1867; Minnesota, February 1, 1867; Rhode Island, February 7, 1867; Wis- consin, F(>bruary 13, 1867; Pennsylvania, February 13, 1867; Michigan, February 15, 1867; Massachusetts, March 20, 1867; Nebraska June 15, 1867; Iowa, April 3, 1868; Arkansas, April 6, 1868; Florida, June 9, 1868; Louisiana, July 9, 1868, and Alabama, July 13, 1868. Georgia again ratified the amendment February 2, 1870. Texas rejected it November 1, 1866, and ratified it February 18, 1870. Virginia rejected it January 19, 1867, and ratified it October 8, 1 869. The amendment was rejected by Kentucky January 10, 1867; by Delaware February 8, 1867; by Maryland March 23, 1867, and was not afterwards ratified by either State. The fifteenth amendment to the Constitu- tion of the United States was proposed to the legislatures of the several States by the For- tieth Congress on the 27th of February, 1869, and was declared, in a proclamation of the Secretary of State, dated March 30, 1870, to have been ratified by the legislatures of twenty- nine of the thirty-seven States. The dates of these ratifications (arranged in the order of their reception at the Department of State) were: From North Carolina, March 5, 1869; West Virginia, March 3, 1869; Massachusetts, March 9-12, 1869; Wisconsin, March 9, 1869; Maine, March 12, 1869; Louisiana, March 5, 1869; Michigan, March 8, 1869; South Carolina, March 16, 1869; Pennsylvania, March 26, 1869; Arkansas, March 30, 1869; Connecticut, May 19, 1869; Florida, June 15, 1869; Illinois, March 5, 1869; Indiana, May 13-14, 1869; Ney? York, March 17-April 14, 1869 (and the legislature of the same State passed a resolu- tion January 5, 1870, to withdraw its consent to it); New Hampshire, July 7, 1869; Nevada, March 1, 1869; Vermont, October 21, 1869; Virginia, October 8, 1869; Missouri, January 10, 1870; Mississippi, January 15-17, 1870; Ohio, January 27, 1870; Iowa, February 3, 1870; Kansas, January 18-19, 1870; Minnesota, February 19, 1870; Rhode Island, January 18, 1870; Nebraska, February 17, 1870; Texas, February 18, 1870. The State of Georgia also ratified the amendment February 2, 1870. The sixteenth amendment to the Consti- tution of the United States was proposed to the legislatures of the several States by the Sixty-first Congress on the 12th day of July, 1909, and was declared, in an announcement by the Secretary of State, dated February 25, 1913, to have been ratified by the legislatures of the following thirty-eight of the forty-eight States. The dates of these ratifications were: Alabama, August 17, 1909; Kentucky, Febru- ary 8, 1910; South Carolina, February 23, 1910; Illinois, March 1, 1910; Mississippi, March 11, 1910; Oklahoma, March 14, 1910; Maryland, April 8, 1910; Georgia, August 3, 1910; Texas, August 17, 1910; Ohio, January 19, 1911; Idaho, January 20, 1911; Oregon, January 23, 1911; Washington, January 26, 1911; California, January 31, 1911; Montana, 28 Pt.l. THE CONSTITUTION. Historical Note. January 31, 1911; Indiana, February 6, 1911; Nevada, February 8, 1911; Nebraska, Febru- ary 11, 1911; North Carolina, February 11, 1911; Colorado, February 20, 1911; North Dakota, February 21, 1911; Michigan, Febru- ary 23, 1911; Iowa, February 27, 1911; Kansas, March 6, 1911; Missouri, ' March 16, 1911; Maine, March 31, 1911; Tennessee, April 11, 1911; Arkansas, April 22, 1911; Wisconsin, May 26, 1911; New York, July 12, 1911; South Dakota, February 3, 1912; Arizona, April 9, 1912; Minnesota, June 12, 1912; Louisiana, July 1, 1912; Delaware, February 3, 1913; Wyoming, February 3, 1913; New Jersey, February 5, 1913; New Mexico, February 5, 1913. The States of Connecticut, New Hamp- shire, Rhode Island, and Utah rejected this amendment. The seventeenth amendment to the Con- stitution of the United States was proposed to the legislatixres of the several States by the Sixty-second Congress on the 16th day of May, 1912, and was declared, in an announcement by the Secretary of State, dated May 31, 1913, to have been ratified by the legislatures of the following thirty-six of the forty-eight States. The dates of these ratifications were: Massachu- setts, May 22, 1912; Arizona, June 3, 1912; Minnesota, June 10, 1912; New York, January 15, 1913; Kansas, January 17, 1913; Oregon, January 23, 1913; North Carolina, January 25, 1913; California, January 28, 1913; Michigan, January 28, 1913; Idaho, January 31, 1913; West Virginia, February 4, 1913"; Nebraska, February 5, 1913; Iowa, February 6, 1913; Montana, February 7, 1913; Texas, February 7, 1913; Washington, February 7, 1913; Wyom- ing, February 11, 1913; Colorado, February 13, 1913; Illinois, February 13, 1913; North Dakota, February 18, 1913; Nevada, February 19, 1913; Vermont, February 19, 1913 ; Maine, February 20, 1913; New Hampshire, February 21, 1913; Oklahoma, February 24, 1913; Ohio, February 25, 1913; South Dakota, February 27, 1913; Indiana, March 6, 1913; Missouri, March 7, 1913; New Mexico, March 15, 1913; New Jersey. March 18, 1913; Tennessee, April 1, 1913; Arkansas, April 14, 1913; Connecticut, April 15, 1913; Pennsylvania, April 15, 1913; Wis- consin, May 9, 1913. The eighteenth amendment to the Con- stitution of the United States was proposed to the legislatures of the several States by the Sixty-hfth Congress on the 19th day of De- cember, 1917, and was declared, in an an- nouncement by the Acting Secretary of State, dated January 29, 1919, to have been ratified by the legislatures of three-fourths of the whole number of States in the United States, as follows: Alabama, Arizona, California, Colo- rado, Delaware, Florida, Georgia, Idaho* Illi- nois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, South Carolina, Texas, Utah, Vii'ginia, Washington, West Virginia, Wisconsin, and Wyoming. The nineteenth amendment to the Con- stitution of the United States was proposed to the legislatures of the several States by the Sixty-sixth Congress on the 5th day of June, 1919, and was declared, in an announcement by the Secretary of State dated August 26, 1920, to have been ratified by the legislatures of three-fourths of the whole number of States in the United States, as follows: Wisconsin, Illinois, Michigan, Ohio, Massachusetts, Iowa, Missouri, Nebraska, Montana, Minnesota, New Hampshire, Utah, California, Maine, Pennsyl- vania, Kansas, Arkansas, Texas, New York, South Dakota, North Dakota, Colorado, Rhode Island, Indiana, Kentucky, Oregon, Wyoming, Nevada, Arizona, New Jersey, Oklahoma, West Virginia, New Mexico, Idaho, Washington, and Tennessee. 29 THE CONSTITUTION. (The text of the Constitution and of the amendments given below is reproduced from S. Doc. No. 427, 66th Cong., 3d sess.] [The preamble.] We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquihty, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and estabUsh this Consti- tution for the United States of America. ARTICLE I. Section 1. [Legislative powers vested in Congress.] All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Congress can not legislate in detail. — To attempt to regulate by statute the minute move- ments of CAery part of the compUcated ma- chinery of government would evince a most unpanlonable ignorance on the subject. Whilst the great outlines of its movements may be marked out and Hmitations imposed on the exercise of its powers, there are numberless things which must be done that can neither be anticipated nor defined and which are essen- tial to the proper action of the Government. (U. S. V. Macdaniel, 7 Pet., 14; U. S. v. Web- ster, 28 Fed. Cas., 515; Lewis Pub. Co. v. Wy- man, 182 Fed. Rep., 13, 16; Haas v. Henkel, 216 U. S.,462, 480; 6 Op. Atty. Gen., 358.) Quasi legislative powers may be exer- cised by heads of departments. — Congress can only legislate in a general way, and lai^e powers are necessarily intrusted to the different departments. They really exercise in this way by delegation, and necessarily so, for the pur- pose of carrying on the vast affairs of the Govern- ment and its details, authority which in a strict sense pertains to Congress. (21 Op. Atty. Gen., 438, 439.) The authority thus exercised by heads of departments is "quasi legislative." (16 Op. Atty. Gen., 495.) For other decisions concerning executive regulations, see note to section 161, Revised Statutes. Constitutionality of Statutes. — "To war- rant a court in declaring unconstitutional a law passed by Congress, the defect of legislative power must be of the most plain and indispu- table character. The fact that a law of Con- gress has been in course of execution for many years and has been acquiesced in during that time is a strong reason why the coiu-ts, espe- cially those of a subordinate character, should not decide the same to be unconstitutional." (U. S. V. Mackenzie, 30 Fed. Cas. No. 18313.) Although the President should veto an act on the ground that he believed it to be uncon- stitutional, if it should subsequently be passed by Congress over his veto and the President proceed to carry it into execution, such action by him can not be enjoined by the courts. (Mississippi v. Johnson, 4 Wall., 475.) The Attorney General is authorized by statute to pass upon the constitutionaUty of acts of Congi-ess when requested to render an opinion thereon by the President or head of a depart- ment. (Sec. 358, R. S. ; 27 Op. Atty. Gen., 259.) "Every law is to be carried out so far forth as is consistent with the Constitution, and no further. The sound part of it must be exe- cuted, and the vicious portion of it suffered to drop. A legislative act is not to be treated as void merely because it is coupled with an abortive attempt to usurp executive powers. It stands to reason that if a condition such as this is asserted to be is void it coiild have no effect whatever, either upon the subject matter or upon other parts of the law to which it is appended. * * * You [the President] are therefore entirely justified in treating this con- dition (if it be a condition) as if the paper on which it is written were blank." (9 Op. Atty. Gen., 462.) Congress can not enact advice or coun- sel. It can enact nothing but that which is to have fidl vigor and effect of a law. (18 Op. Atty. Gen., 18; but see sec. 1755, R. S.) However, where Congress enacted a law which was construed by the Attorney General to be advisory only, and not mandatory upon the President as claimed, the Attorney General in his opinion to the President remarked: " But it is what yoii called it in your message — a recommendation; and your respectful defer- ence to the wishes of Congress induced you to carry it out, though you were not boimd to do 80." (9 Op. Atty. Gen., 462.) "Procuring legislation by the private solicitation of persons who have no official dela- tions which authorize them to communicate with Congress is never to be commended; it can be excused only where the motive is as manifestly honest as it was in this case. You, yourself, speaking of this very affair in a solemn message have declared it to be dangerous to the sub- ordination and discipUne of the Army, since, if it were encouraged, 'officers might then be found, instead of performing their appropriate duties, besieging the halls of Congress for the purpose of obtaining special favors and choice 30 Senators. Pt. 1. THE CONSTITUTION. Art. I, Sec. 3. places by legislative enactment.' " (Atty. Gen. to the President, 9 Op. Atty. Gen., 468; Messages and Papers of the Presidents, vol. 5, p. 597; see also acta July 11, 1919, sec. 6, 41 Stat., 68, and Aug. 24, 1912, sec. 6, 37 Stat., 555.) By General Orders, No. 32, War Department, March 15, 1873, it was ordered that "no officer, either active or retired, shall, directly or indi- rectly, without being called upon by proper authority, solicit, suggest, or recommend action by Members of Congress for or against military affairs;" that "all petitions to Congress by officers relative to subjects of a military char- acter will be forwarded through the General of the Army and Secretary of \\'ar for their action and transmittal; " and that " an officer \TLsi ting the seat of government during a congressional session will, upon his arrival, register his name at the Adjutant General's Office, as now re- quii-ed, and, in addition, address a letter to the Adjutant General of the Army, reciting the purpose of and time that will be embraced by his visit and the authority under which he is absent from his command or station. The pur- pose or object so recited will be the strict guide of the officer during his stay. ' ' (As to authority of Secretary of War to issue such an order, see letter of Secretary of War in reply to House Resolution of April 13, 1874, as published in Executive Document No. 275, House of Rep- resentatives, 43d Cong., 1st sess.; Lieber on Regulations, Appendix A.) Sectiox 2. [Clause 1. Election of Representatives.] * The House of Repre- sentatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. [Clause 2. Qualifications of Representatives.] ^ No Person shall be a Repre- sentative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. [Clause 3. Apportionment of Representatives and direct taxes.] ^ Repre- sentatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Num- bers, which shall be determined by adding to the whole Number of free Persons, including those bomid to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Marnier as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Rep- resentative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six. New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virgmia ten. North Carohna five. South Carolina five, and Georgia three. The first sentence of this clause is amended by the fourteenth amendment, second section. [Clause 4. Vacancies in House of Representatives.] * When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. [Clause 5. Officers and impeaching" power of House of Representatives.] ^ The House of Representatives shall chuse their Speaker and other Officers; and shaU have the sole Power of Impeachment. Section 3. [Clause 1. Number and election of Senators.] ^ The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. This clause is superseded by the seventeenth amendment. 31 Art. I, Sec. 5. Pt. 1. THE CONSTITUTION. The Congress. [Clause 2. Term of Senators and filling of vacancies.] - Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixtli Year, so that one-third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make tem- porary Appointments until the next Meetmg of the Legislature, which shall then fill such Vacancies. This clause is modified by the seventeenth amendment. [Clause 3. Qualifications of Senators.] ' No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which ho shall be chosen. [Clause 4. The Vice-President and his vote.] * The Vice President of the United States shall be President of the Senate, but shall have no Vote, imless they bo equally divided. [Clause 5. Officers of the Senate.] ^ The Senate shall chuse their other Officers, and also a President pro tempore, m the absence of the Vice President, or when he shall exercise the Office of President of the United States. [Clause 6. Trial by Senate of impeachments.] ^ The Senate shall liave the sole Power to try aU Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the ConcuiTence of two thirds of the Members present. [Clause 7. Judgment in cases of impeachment.] '' Judgment in Cases of Impeachment shall not extend further than to removal from Office, and dis- qualification to hold and enjoy any Office of honor. Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section 4. [Clause 1. Holding of elections for Senators and Representa- tives.] ^ The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. [Clause 2. Annual session of Congress.] ^ The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section 5. [Clause 1. Regularity of elections, quorum to do business, etc.] ^ Each House shall he the Judge of the Elections, Returns and Qualifications of its o^^^l Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. 32 The Congress. Pt. 1. THE CONSTITUTION. Art. I, Sec. 6. Acts of Member not legally elected. — A member of Congress who has actually been seated is a de facto member, and acts performed by him as such are valid, although he may sub- sequently be unseated as the result of an elec- tion contest. So held with reference to the nomination of a candidate for appointment as a midshipman at the Naval Academy. (21 Op. Atty. Gen., 342.) [Clause 2. Rules of proceedings; punishmeiit of members.] ^ Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member. [Clause 3. Journal of proceedings.] ^ Each House sliall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Mem- bers of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. [Clause 4. Temporary adjournments.] * Neither House, during the Session of Congress, shall, without the Consent of the otlier, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. A temporary adjournment is not a "re- only to the case where the Senate adjourns sine cess of the Senate" within the meaning of die (23 Op. Atty. Gen., 599; affirmed, 29 Op. Article II, section 2, clause 3, empowering the Atty. Gen., 602; contra, Gould v. U. S., 19 Ct. President to fill vacancies. "Recess" refers Cls., 593, 595; 33 Op. Atty. Gen., 20.) Section 6. [Clause 1. Compensation and privilege of Senators and Repre- sentatives.] ^ The Senators and Representatives shall receive a Compensation for tlieir Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. The privilege from arrest does not ex- empt Senators and Representatives from being served with, and required to obey, a subpoena in a criminal case. (U. S. v. Cooper, 25 Fed. Gas. No. 14861.) Naval courts-martial and courts of in- quiry have power to issue Like process to com- pel witnesses to appear and testify as United States courts of criminal jurisdiction; and re- fusal of any person to appear and testify when so subpoenaed is punishable as a misdemeanor by fine and imprisonment. (Act Feb. 16, 1909, sees. 11 and 12, 35 Stat., 621, 622.) Held, that under this law a court of inquiry is empowered to sub- poena a Representati\e attending a session of Congress, but that if he refused to appear, he could not be compelled to do so owing to the fact that under this clause of the Constitution he would be pri\'ileged from arrest for the mis- demeanor so committed. (Court of inquiry Rec. No. 5203, pp. 1281-1286, 1293-1294, 1339- 1343, 1363-1365, 1422.) [In the case cited the court of inquiry issued a subpoena for Representative John W." Weeks. The record showed that he was advised by the Speaker and parliamentarians of the House not to respond without an order of the House; that this would necessitate the introduction of a res- olution in the House, which would possibly create a debate and produce considerable pub- licity as to the subject of the inquiry; that he was willing to appear voluntarily without a sub- poena; that the Department had been consulted and held as above stated. Accordingly, the court decided to withdraw the subpoena, and Representative Weeks thereupon voluntarily appeared and testified.] Privilege applies only to civil cases. — "The words 'treason, felony, and breach of the peace ' were used by the framers of the Consti- tution in Sec. 6, Art. I, and should be construed, in the same sense as those words were commonly used and understood in England as applied to the parliamentary privilege, and as excluding from the privilege all arrests and prosecutions for criminal offenses, and confining the privilege alone to arrests in civil cases." (Williamson V. U. S., 207 U. S., 427.) [Clause 2. Appointment of Senators or Representatives to otlier oflSces.] 2 No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during sucli time; and no Person holding any Office under the United Statas, shall be a Member of either House during his Continuance in Office. 33 Art. I, Sec. 7. Pt. 1. THE CONSTITUTION. Veto Po-wer. This clause prevents the appointment of a ft)rnuT i^cnutor to a c\\\\ oilico created after his resignation from the iSenate, but "during the time for which he was elected." (17 Op. Atty. Gen., 3G5.) It also prevents his appoint- ment as a member of the Cabinet, where the salary of the office was increased during his service in the Senate. (See note to sec. 160, R. S.) The President is not authorized to nominate for office a person ineligible under this clause, and such a nomination, although confirmed by the Senate, can not be made the basis of an appointment to the nominee even when his disqualification ceases. (17 Op. Atty. Gen., 522.) The Secretary of War is not in the military service, but is a civil officer. (U. S. v. Bums, 12 Wall., 246.) Whether a retired Army officer can receive pay as such while holding a seat in Congress is a question of grave doubt which only a deter- mination of the Supreme Court can satisfac- torily settle. (20 Op. Atty. Gen., 686; see also file 27231-74, May 12, 1916.) Section 7. [Clause 1. Bills for raising revenue.] ^All Bills for raising RoTonue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. [Clause 2. Approval and disapproval of bills by President.] - Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Recon- sideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any BOl shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Bills vetoed as unconstitutional and becoming law without President's ap- proval. — ^\Vhere certain bills were enacted into law without the approval of President Johnson, who had vetoed them on the ground of their unconstitutionality, he proceeded to put them into effect, and it was held by the Supreme Court that such action on the part of the Presi- dent could not be enjoined, notwithstanding the alleged unconstitutionality of the statutes. (Mississippi v. Johnson, 4 Wall., 475.) Veto of bill authorizing restoration of dismissed officer. — A bill passed by both houses of Congress pro^•ided: That the Presi- dent be, and he is hereby, authorized to nomi- nate and, by and with the advice and consent of the Senate, to appoint Fitz John Porter, late a major general of the United States Volunteei-s and a brevet brigadier general and colonel of the Army, to the position of colonel in the Army of the United States, of the same grade and rank held by him at the time of his dismissal from the Army by sentence of court-martial promul- gated January 27, 1863. * * * " This bill was vetoed by the President in a message reading in part as follows: " It is apparent that should this bill become a law it will create a new office which can be filled by the appointment of the particular in- dividual whom it specifies, and can not be filled otherwise; or it may be said with perhaps greater precision of statement that it ■u'ill create a new office upon condition that the particular person designated shall be chosen to fill it. Such an act, as it seems to me, is either unneces- sary and ineffective or it involves an encroach- ment by the legislative branch of the Govern- ment upon the authority of the Executive. As the Congress has no power under the Consti- tution to nominate or appoint an officer and can not lawfully impose upon the President the duty of nominating or appointing to office any particular indi\'idual of its own selection, this bill, if it can fairly be constnied as requiring the President to make the nomination and, by and with the advice and consent of the Senate, the appointment which it axithorizes is in manifest violation of the Constitution. If such be not its just interpretation, it must be regarded as a mere enactment of advice and counsel, which lacks in the very nature of things the force of positive law and can serve no useful purpose upon the statute books." (Veto message of President Arthur, Jidy 2, 1884, Messages and Papers of the Presidents, vol. 8, p. 221.) The Attorney General advised the President that the above bill was beyond the power of Congress and should not be approved by the President, 34 Veto Power. Pt. 1. THE CONSTITUTION. Art. I, Sec. 7. for reasons similar to those afterwards given in the veto message above quoted. (See 18 Op. Atty. Gen., 18, noted imder Art. II, sec. 2, clause 2.) The Secretary of the Navy in commenting upon the above veto message stated: "The foregoing clear exposition of the force of section 2 of Arti- cle II of the Constitution * * * shows that an effectual barrier has been established by the Constitution to any restoration to the Navy, by legislation, of particiilar officers who have been dismissed therefrom; and the Supreme Court has further established the proposition that such dismissals when once accomplished can not be revoked by the Executive. No more impor- tant doctrines than these can be stated bearing upon the welfare of our Na\'y personnel. ' ' (An- nual Report, 1884, p. 43. See also note to Art. II, sec. 2, clause 2, "Restoration of dismissed officers.") Veto of bill to annul the finding and sen- tence of a court-martial. — "There are other causes that deter me from giving this bill the sanction of my approval. The judgment of the court-martial by which, more than twenty years since, Fitz John Porter was tried and convicted was pronounced by a tribimal composed of nine general officers of distinguished character and ability. Its investigation of the charges for which it found the accused guilty was thorough and conscientious, and its findings and sentence were in due coiu-se of law approved by Abraham Lincoln, then President of the United States. Its legal competency, its jurisdiction of the ac- cused and of the subject of the accusations, and the substantial regularity of all of its proceed- ings are matters which have never been brought into question. Its judgment, therefore, is final and conclusive in its character * * *. "The pro\isions of the bill now under con- sideration are avowedly based on the assumption that the findings of the court-martial have been discovered to be erroneous; but it will be borne in mind that the investigation which is claimed to have resulted in this discovery was made many years after the events to which that evi- dence related and under circumstances that made it impossible to reproduce the evidence on which they were based. "It seems to me that the proposed legislation woTild establish a dangerous precedent, calcu- lated to imperil in no small measure the binding force and effect of the judgments of the various tribiuials established under om- Constitution and laws. "I have already, in the exercise of the par- doning power with which the President is vested by the Constitution, remitted the con- tinuing penalty which had made it impossible for Fitz John Porter to hold any office of trust or profit under the Government of the United States; but I am im willing to give my sanction to any legislation which shall practically annul and set at naught the solemn and deliberate conclusions of the tribunal by which he was con\dcted and of the President by whom its findings were examined and approved." (Veto message of President Arthur, July 2, 1884, Mes- sages and Papers of the Presidents, vol. 8. p. 221.) Veto of bill to alter military records. — "The bill is objectionable because, if approved, it will require that for all purposes that are con- trolled by the laws of the United States, Aaron Cornish shall be held and considered to have been honorably discharged as assistant surgeon from the Ninety-seventh New York Volunteer Infantry. But it is a fact that Asst. Surg. Cornish was dismissed fi-om the military serv- ice of the United States as of the organiza- tion mentioned September 8, 1862, in pursu- ance of an order issued by competent authority. In addition to this the approval of this bill will require an alteration of historical records that should be kept inviolate. If approved, the bill will also require the issuance of a certificate of honorable discharge in the case of an officer who, as a matter of fact, was not honorably dis- charged from the military service. It is im- possible to discharge Cornish honorably now, because both he and the organization of which he was a member passed out of the military service of the United States and beyond mili- tary control more than 40 years ago. And to issue a certificate to show that he is now, or was at some previous time, honorably discharged firom the military service of the United States would be to issue a false certificate. "It is easily possible, without any alteration of historical records and without the issuance of a discharge certificate that is contrary to the fact, to confer upon Aaron Cornish, or any other person claiming under him, any right or benefit to which he, or such other person, would have been entitled , if it were a fact that he actually was honorably discharged from the military service of the United States. If, as is pre- sumably the case, it is desired to give him, or some other person claiming under him, a pen- sionable status, of which he or such other person is now deprived by reason of the fact that he was not honorably discharged, that object can be accomplished with certainty, without re- quiring any alteration of records and without the issue of an incorrect discharge certificate, by enacting a law pro\dding as follows: " 'That in the administration of the pension laws, Aaron Cornish, who was assistant surgeon. Ninety-seventh New York Volunteer Infantry, shall hereafter be held and considered to have been discharged honorably from the military service of the United States as a member of said organization on the eighth day of September, eighteen hundred and sixty-two.' " (Veto message of President Taft, Mar. 28, 1910, quoting and adopting report of The Adjutant General of the Army; S. Doc. No. 464, 61st Cong., 2d sess.; 45 Cong. Rec, pt. 4, pp. 3848, 3849.) Veto of bill to restore to active list oflS,cer voluntarily retired.— "I inclose herewith copy of reports of the Secretary of the Navy and of the Chief of the Bureau of Na\'iga- tion adverse to the signature of this bill. The report of the Chief of the Bureau of Navigation gives the precedents which this bill follows. In each case special reasons were believed to exist at the time why a special exception should be made, but actual experience has shown that in each case the restoration served as a prece- 35 Art. I, Sec. 8. Pt. 1. THE CONSTITUTION. Naturalization. ment, and I see no reason why that action should be reversed. The board was composed of well-known officers, and I believe that their recommendation was. in accordance \vith their oaths, based upon the relative standing and special fitness of the officer concerned, as well as the efficiency of the naval service. If this bill for the rslief of Commodore Veeder is ap- proved, it will probably be followed by others of a similar nature for the retm-n of all officers who have been placed on the retired list in accordance with the provisions of the personnel act, and it is my opinion that the enacting of this measure into a law will have a most inju- rious effect upon the naval service." (Veto message of President Taft, Mar. 4, 1911, 46 Cong. Rec., pt. 5, p. 4290. 61st Cons:., 3d sess. But see act Mar. 3, 1915, 38 Stat., 939, making provision for restoration to active list of all officers compulsorily retired under the personnel act of Mar. 3, 1899; and see act of Aug. 29, 1916, 39 Stat., 602, 603, making provision for restoration to the active list of Commodore Veeder and other officers named therein. Veto of bill to make retired oflB^cers of Army not amenable to court-martial. — See note to section 1457, Revised Statutes. dent for the restoration of somebody else where the cause was not quite so strong. Commander White was transferred to the retired list three years ago on his own application. Ho now seeks reinstatemeixt. All the advantages that should bo derived from the legislation under which he was retired will be lost if the various individuals who take advantage of it are en- couraged to believe that whenever they desire to undo their action that end can be achieved by supplemental special legislation. I agi-ee entirely with Admiral Pillsbury's statement that legislation of this character does not con- tribute to the best interests of the service. I accordingly return the bill without my ap- proval."" (Veto message of President Roose- velt. Apr. 7, 1908, 42 Cong. Rec, pt. 5, p. 4503, 60th Cong.. 1st sess.) ' Veto of bill to restore to active list officer compulsorily retired. — "In accord- ance Avith the provisions of the personnel act of March 3, 1899, Capt. Veeder was placed upon the retired list with the rank of commodore, being one of the officers deemed by the board of five rear admirals less efficient than the re- maining captains on the active list. The find- ing of this Doard was approved by me, acting upon the recommendation of the Navy Depart- [Clause 3. President's action on joint resolutions.] ^ Every Order, Resolu- tion, or Vote to which the Concurrence of the Senate and House of Representa- tives may be necessary (except on a question of Adjournment) shall be pre- sented to the President of the United States; and before the Same shall take Effect, shall bo approved by him, or bemg disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed m the Case of a Bill. Section 8. The Congress shall have Power [Clause 1. Ee venue power, common defense and general welfare.] ^To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; [Clause 2. Borrowing power.] ^ To borrow money on the credit of the United States ; [Clause 3. Power over commerce.] ^ To regulate Commerce with Foreign Nations, and among the several States, and vnth the Indian Tribes; [Clause 4. Naturalization and bankruptcies.] ■* To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States ; "The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away. 'A naturalized citizen,' said Chief Justice Mar- shall, 'becomes a member of the society, pos- sessing all the rights of a native citizen, and standing, in the \-iew of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The Constitution then takes him up, and, among other rights, extends to him the capac- ity of suing in the courts of the Urdted States precisely under the same circumstances which a native might sue.' Congress having no power to abridge the rights conferred by the Constitu- tion upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori, no act or omission of Congress, as to the pro- viding for the naturalization of parents or chil- dren of a particular nice, can affect citizenship acquired as a birthright, by virtue of the Con- stitution itself, without any aid of legislation." 86 Inferior Courts. Pt. 1. THE CONSTITUTION. Art. I, Sec. 8. deemed to have voluntarily relinquished and forfeited their rights of citizensliip, as well as their ri^ht to become citizens; and such desert- ers shall be forever incapable of holding any office of trust or profit under the United states, or of exercising any rightsof citizens thereof." (Sec. 1998, R. S., as amended by act Aug. 22, 1912, 37 Stat., 356.) For other statutes and decisions relating to citizenship and naturalization, see note to Amendments, Art. XIV. (U. S. V. Wong Kim Ark, 169 U. S., 649._ As to loss of citizenship, compare Mackenzie v. Hare, 239 U. S., 299.) Naturalization of enlisted men of the Navy and Marine Corps. — Special provision has been made by Congress in these cases, which form exceptions to the general naturali- zation law. (See act May 9, 1918, 40 Stat., 542.) Deserters from the military or naval service, who desert in time of war, "are [Clause 5. Coinage, weights, and measures.] ^ To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Meas- ures ; [Clause 6. Counterfeiting.] ® To provide for the Punishment of counter- feiting the Securities and current Coin of the United States; [Clause 7. Post ojfices and post roads.] '^ To establish Post Offices and post Roads; [Clause 8. Patents and copyrights.] ^ To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries ; Right of Government to use a patent. — Congress has pro\dded that the owner of any patented invention may recover reasonable compensation by suit in the Court of Claims for the unauthorized use thereof by the United States; but that this shall not apply to any device invented by any person while in the employment or service of the United States, or who is in such employment or ser'/ice at the time of making claim, or to the assignee of any such patentee. (Act June 25, 1910, 36 Stat., 851, as amended by act July 1, 1918, 40 Stat., 705. See also act Oct. 6, 1917, sec. 10 (i), 40 Stat., 422.) [Clause 9. Inferior courts.] ^ To Supreme Court ; Courts-martial. — ^This clause does not ap- ply to military and naval courts, which form no part of the judicial system of the United States, but are instrumentalities of the executive, created by Congress under its power "to make rules for the government and regulation of the land and naval forces." (See Kurtz v. Moffitt, 115 U. S., 500; Dynes v. Hoover, 20 How., 78; Ex parte Milligan, 4 Wall., 137; U. S. i). Macken- zie, 30 Fed. Cas. No. 18313; Ex parte Hender- son, 11 Fed. Cas. No. 6349; Ex parte Dickey, 204 Fed. Rep., 322; C. M. O. 24, 1914, p. 19.) Judicial system of United States. — The United States has been divided by Congress into "judicial districts" and "judicial cir- cuits." Each State comprises one or more judicial districts, and in each district there is a court called a District Court for which there are provided one or more district judges, with a few exceptions in which only one judge is provided for two districts in the same State. There are nine judicial circuits, each of which necessarily embraces a number of judicial dis- tricts. In each judicial circuit there is a Cir- cuit Court of Appeals consisting of three judges, who may be either circuit judges, of whom two "It has been determined that the Govern- ment of the United States has no right to use a patented invention without compensation to the owner, under the constitutional provision that in the exercise of the power of eminent domain it may take private property for public use, but not without making just compensation therefor. (U. S. v. Burns, 12 Wall., 246; Cam- meyer v. Newton, 94 U. S., 225; James v. Camp- bell, 104 U. S., 356; Hollister v. Benedict Mfg. Co., 113 U. S., 59; U. S. v. Palmer, 128 U. S., 262; Belknap 7;.Schild, 161 U.S., 10.)" 23 Op. Atty. Gen., 302.) constitute Tribunals inferior to the or more are authorized for each judicial circuit, or any of the district judges within the circuit. In addition, the justices of the Supreme Court, of whom there are nine including the CMef Justice, are allotted one to each circuit, and are authorized to sit as judges of the Circuit Court of Appeals within their respective cir- cuits, being designated as the "circuit justice" for the circuit. Tlie circuit courts of appeal for the respective circuits exercise appellate jurisdiction over the district courts within the circuit, except that in certain cases appeals and writs of error may be taken direct to the Supreme Court. The judgments of the circuit courts of appeal are final in a great many cases. In others, appeals and writs of error may be taken to the Supreme Court. In addition. Congress has established special tribunals of very limited jurisdiction, such as consular courts, the Court of Claims, and the Court of Customs Appeals. It hasalso pro- vided for courts in Alaska, District of Columbia, Hawaii, Philippine Islands, and Porto Rico. (See Judicial Code, act Mar. 3, 1911, 36 Stat., 1087.) 3T Art. I, Sec. 8. Pt. 1. THE CONSTITUTION. War Power. [Clause 10. Crimes at sea and offenses against law of nations.] '° To define and punish Piracies iiud Felonies committed on the high Seas, and Offenses ajrainst the Law of Nations ; The judicial power of the United States embraces "all cases ol" adnuralty and mariiime juiisdiclion." (Art. Ill, eec. 2, clause 1.) Piracies and felonies committed on the liigli eoas are defined and punished by the Criminal Code, act of March 4, 1909, sections 290-310 (35 iStat., 1145-1148); offenses wilhin the admiralty and maritime jurisdiction are de- fined and punished by same act, sees. 272-289 (35 Stat., 1142^1145.) Power of Congress to punish offenses. — The Constitution contains no grant to Congress of power to provide for the punishment of crimes except piracies and felonies committed on the high seas, offenses against the law of nations, treason, and counterfeiting the securi- ties and current coin of the United States. Nevertheless, Congress has power to provide for the punishment of other crimes within the State or within the territory over which Congress has plenary and exclusive jurisdiction. (Logan v. U. S., 144 U. S., 283.) Any act of Congress which plainly and di- rectly tends to enhance the respect and love of the citizen for the institutions of his country and to quicken and strengthen his motives to defend them, and which is germane to and intimately connected with and appropriate to the exercise of some one or all of the powers granted by the Constitution to Congress, must be valid. (U. S. v. Gettysburg Electric R. Co., 160 U.S., 679.) The Government of the Union is not de- pendent on the States for the execution of the great powers assigned to it; its means are ade- quate to its ends. (McCulloch v. Maryland, 4 Wheat., 316, 424:_ In re Debs, 158 U. S., 578.) ImpUed power in Congress to pass laws to define and punish offenses is also derived from the Constitutional grant to Congress to declare war, to raise and support armies, to provide and maintain a na\^% and to make rules for the government and regulation of the land and naval forces, and to provide for organizing, arming and discipUning the militia and for gov- erning of such part of them as may be employed in the public service. Like implied author- ity is also vested in Congress from the power conferred to exercise exclusive jurisdiction over places purchased by the consent of the legisla- [ Clause 11. Power to declare war War, grant Letters of Marque and Captures on Land and Water; I. The War Power. II. Property of Belligerents. III. Acquisition and Government op Ter- ritory. Discipline of Army. Martial Law. IV. V. I. The War Power. Power of Congress to declare war and President's power as Commander in ture of the State in which the same shall be for the erection of forts, magazines, arsenals, dock yards and other needful buildings, and from the clause empowering Congress to pass all laws which shall be necessary and proper for carry- ing into execution the foregoing powers and all other powers vested by the Constitution in the Government of the United States or any department or ofhcer thereof. (U. S. v. Hall, 98 U. S., 346; see also U. S. v. Bamow, 239 U. S., 77.) Any act committed with a view to evading the legislation of Congress passed in the execu- tion of any of its powers, or of fraudulently securing the benefit of such legislation, may properly be made an offense against the United States. But an act committed within a State, whether for a good or a bad purpose, or whether with an honest or a criminal intent, can not be made an offense against the United States unless it has some relation to the execution of a power of Congress or to some matter within the jurisdiction of the United States. An act not haying any such relation is one in respect to wliich the State can alone legislate. (U. S. v. Fox, 95 U. S., 672.) Miscellaneous cases. — U. S. v. White, 27 Fed. Rep., 203 (not necessary for Congress to name offense); U. S. v. Smith, 5 WTieat., 157 (not necessary for Congress to define the offense); U. S. v. Kelly, 11 ^Mieat., 417 (judicial definition of offense not defined by Congress); U. S.iJ. Holmes, 5'WTieat., 417 (offense on ves- sel held by phates); U. S. v. Bowers, 5 "^Tieat., 198 (offense committed by foreigner on foreign vessel at sea); U. S. v. Arjona, 120 U. S., 484 (offense against law of nations). See also, U. S. t'. Palmer, 3 WTieat., 610; U. S. v. Wiltberger, 5 WTieat., 76; U. S. v. Pirates, 5 TMieat., 184; U. S. 1'. Bevans, 3 Wheat., 336. "That the laws of nations constitute a part of the laws of the land is established from the face of the Constitution, upon prmciple and by authority. But the laws of war constitute much the greater part of the law of nations. Like the other laws of nations, they exist and are of binding force upon the departments and citizens of the Government, though not defined by any law of Congress." (11 Op. Attv. Gen., I 299.) and regulate captures, etc.] "To declare Reprisal, and make Kules concerning Chief. — "Congress has the power not only to raise and support and govern armies but to Tcleclare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with \dgor and success, except such as interferes with the command of forces and the conduct of cam- paigns. That power and duty belong to the President as Commander in Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their 38 Wax Power. Pt. 1. TEE CONSTITUTION. Art. I, Sec. 8. extent must be determined by their nature and by the principles of our institutions. The power to make the necessary laws is in Con- gress, the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authority essential to its due exercise. But neither can the President in war more than in peace intrude upon the proper authority of Congi-ess, nor Congi-ess upon the proper author- ity of the President. Both are servants of the people, whose will is expressed in the funda- mental law. Congress can not direct the con- duct of campaigns, nor can the President or any commander under him, without the sanction of Congress, institute tribunals for the trial and pimishment for offenses, either of soldiers or civilians, unless in cases of a controlling neces- sity which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature." (Ex parte Milligan, 4 Wall., 2, 139, concurring opinion of four justices; see also Swaim r. U. S., 28 Ct. Cls., 173, 221, aflSrmed, 165 U. S., 553; and see note to Art. II, sec. 2, clause 1.) Power of President in advance of con- gressional action. — "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority." ''Prize Cases, 2 Black, 635.) "WTiether the President in fulfilling his duties as Commander in Chief in suppressing an insurrection has met with such armed_ hostile resistance and a civil war of such alarming pro- portions as will compel him to accord to them the character of belligerents is a question to be decided by him, and this court must be gov- erned by the decisions and acts of the political department of the Government to which this power was intrusted. He must determine what degree of force the crisis demands. The proclamation of blockade is itself official and conclusive evidence to the coiu"t that a state of war existed which demanded and authorized a recourse to such a measiu-e, under the cir- cumstances peculiar to the case." (Prize Cases, 2 Black, 635.) "A state of actual war may exist without any formal declaration of it by either party; and this is true of both a civil and a foreign war." (Prize Cases, 2 Black, 635.) "That a foreign nation, or insiu-rectionary body of citizens, may by invasion of the United States or by other acts bring about a condition of affairs which will warrant the President in declaring, in advance of congressional legisla- tion, that a state of war exists, was asserted by the Supreme Coiu-t in the Prize Cases." (2 Willoughby Const., 796.) [That power of de- claring war is exclusive with Congress, see Perkins v. Rogers, 35 Ind., 167.] "The question in the present case is. When did the Kebellion begin and end? * * * The proclamation of intended blockade by the President may, therefore, be assumed as mark- ing the first of these dates, and the proclama- tion that the war had closed as marking the second." (The Protector, 12 Wall., 700.) [The President's proclamations of intended blockade were issued on April 19 and 27, 1861; see also 102 U. S., 426, 438; 9 Wall., 71; 15 Op. Atty. Gen., 572, 574; sees. 1997 and 4749, R. S.; proclamations that the war had closed were issued on April 2 and August 20, 1866.] Extent of war power. — "The measures to be taken in carrying on war and to suppress in- surrection are not defined. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution. In the latter case the power is not limited to \dctories in the field and to the dispersion of the insur- rectionary forces. It carries with it inherently the power to guard against the immediate re- newal of the conflict and to remedy the evils which have arisen from its rise and progress." (Stewart v. Kahn, 11 Wall., 493.) The power to prohibit the liquor traffic as a means of increasing war efficiency is part of the war power of Congress. (Hamilton v. Kentucky Distilleries Co., 251 U. S., 146; Rup- pert V. Caffey, 251 U. S., 264.) Congress has the authority to raise and sup- port armies and to make rules and regulations for the protection of the health and welfare of those composing them against the evils of prostitution, and may leave the details of such regulations to the Secretary of War. A citizen may legally be convicted of setting up a house of ill fame within five miles of a military station, that being the distance designated by the Secretary of War in regulations made by him under the act of May 18, 1917, section 13 (40 Stat., 76). (McKinley v. U. S., 249 U. S., 397.) II. Property of Belligerents. Effect of declaration of war. — "The people of the two countries become immedi- ately the enemies of each other— all intercourse, commercial or otherwise, between them un- lawful—all contracts existing at the com- mencement of the war suspended, and all made during its existence utterly void. The insur- ance of enemies' property, the drawing of bills of exchange or purchase on the enemies' coun- try, the remission of bills or money to it are illegal and void. Existing partnerships be- tween citizens or subjects of the two countries are dissolved and, in fine, interdiction of trade and intercourse, direct or indirect, is absolute and complete by the mere force and effect of war itself. All the property of the people of the two countries on land or sea are subject to cap- ture and confiscation by the adverse party as enemies' property, with certain qualifications as it respects property on land (Brown i;. U. S . , 8 Cranch, 110) . All treaties between the belliger- ent parties are annulled. The ports of the respective countries may be blockaded, and letters of marque and reprisal granted as rights of war, and the law of prizes as defined by the law of nations comes into full and complete operation, resulting from maritime captures, jure belli. War also effects a change in the mutual relations of all States or countries, not dii-ectly, as in the case of belligerents, but im- mediately and indirectly, though they have no part in the contest, but remain neutral." 39 Art. I, Sec. 8. Pt. 1. THE CONSTITUTION. War Power. (Prize Cases, 2 Black, 635, 682, dissenting oi)iiiion Justice Nelson; see also McCormick v. iluinphrov, 27 Ind., 154; Perkins v. Rogers, 35 Ind.. 1(17. ■) Confiscation of enemy property. — "War gives the right to confiscate l)ut does not of it- self confiscate tlie pro]ierty of tlie enemy." (Brown v. U. S., 8 Crunch, 110; see also Britton V. Butler, 4 I'ed. Cas. No. 1903; Wagner v. Schooner Juanita, 28 Fed. Cas. No. 17039; Miller v. U. S., 11 Wall., 304; Brown v. Hiatt, 4 Fed Cas. No. 2011.) ''^^^len war breaks out the question what shall be done with enemy property in oiir countr\' is a question rather of policy than of law. The rule which we apply to the property of our enemy will be applied by him to the property of our citizens. Like all other ques- tions of policy it is proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary." (Brown V. U. S.. SCranch, 110.) Authority of military commander to seize private property. — "Private property may be taken by a military commander to pre- vent it from falling into the hands of the enemy or for the purpose of converting it to the use of the public; but the danger must be immediate and impending, or the necessity urgent for the public service such as will not admit of delay and where the action of the civil authority would be too late in providing the means which the occasion calls for. The facts as they ap- peared to the officer must fiirnish the rule for the application of these principles. But the officer can not take possession of private prop- erty for the purpose of insuring the success of a distant expedition upon which he is about to march." (Mitchell v. Harmony, 13 How., 115.) "If private property there [in conquered territory'] was taken by an officer or a soldier of the occupying army, acting in his military char- acter, when by the laws of war or the proclama- tion of the commanding general it should have been exempt from seizure, the owner could haA-e complained to that commander, who might have ordered restitution or sent the offending party before a military tribunal, as circum- stances might have required, or he could have had recourse to the Government for redress. But there can be no doubt of the right of the Army to appropriate any property there, although belonging to private individuals, which was necessary for its support or conven- ient for its use. This was a belligerent right which was not extinguished by the occupation of the country, although the necessity for its exercise was thereby lessened. However ex- empt from seizure on other grounds private property there may have been, it was always subject to be appropriated when required by the necessities or convenience of the Army, though the owTier of property taken in such case may nave had a jiist claim against the Govern- ment for indemnity." (Dow v. Johnson, 100 U. S., 158, 167; compare, Heflebower v. U. S., 21 Ct. Cls., 2.37 ; U. S. v. Pacific R. Co., 120 U. S., 239; Alexander v. U. S., 39 Ct. Cls., 383; 13 Op. Atty. Gen.,111; Wigging's Case, 3 Ct. Cls., 413.) "Extraordinary and unforeseen occasions arise, however, beyond a doubt, in cases of ex- treme necessity in time of war or of immediate or impending danger in which pri\ate ])roperty may be impressed into the public service or may be seized and appropriated to the public use or may even be destroyed without the con- sent of the owner. * * * The rule is well set- tled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser and that the Govern- ment is bound to make full compensation to the owner." (U. S. v. Russell, 13 Wall., 623.) Status of inhabitants in enemy coun- try. — "The district of country declared by the constituted authorities during the late Civil War to be in insurrection against the Government of the United States was enemy territory, and all the people residing within such district were, according to public law and for all purposes connected with the prosecution of the war, lial)le to be treated by the United States, pending the war and while they remained within the lines of insurrection, as enemies without reference to their personal sentiments and dispositions." (Ford v. Surget, 97 U. S., 594.) "It is said that, though remaining in rebel territory, Mrs. Alexander has no personal sympathy with the rebel cause and that her property therefore can not be regarded as enemy property; but the court can not inquire into the personal character and dispositions of individual inhabitants of enemy territory. We must be governed by the principle of public law so often announced by this Ijench as appli- cable alike to civil and international wars, that all the people of each State or district in insur- rection against the United States must be re- garded as enemies until, by action of the legislature and the executive, or otherwise, that relation is thoroughly and ])ermanently changed." (Mrs. Alexander's Cotton, 2 Wall., 404; see also. Miller 3'. U. S., 11 Wall., 268, sus taining laws providing for confiscation of pri- vate property owned by friendly as well as hostile inhabitants of the Confederate States.) III. Acquisition and Government of Territory. Power to acqviire territory. — "The genius and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purposes of aggression or aggrandizement, but to enable the General Gov- ernment to vindicate by arms if it should be- come necessary its own rights and the rights of its citizens. A war, therefore, declared by Congress can never be presumed to ])e waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's territory. The United States, it is true, may enlarge its boundaries by conquest or treaty and may demand the cession of ter- ritory as a condition of peace in order to in- demnify its citizens for the injuries they have suffered, or to reimburse the Government for the expense of the w^ar; but this can be done only by the treaty-making power or the legisla- te War Power. Ft. 1. THE CONSTITUTION. Art. I, Sec. 8. tive authority, and is not a part of the power conferred upon the President by the declara- tion of war. His duty and power are purely military. * * * He may invade the hostile country and subject it to the sovereignty and authority of the United States; but his con- quests do not enlarge the boundaries of this Union nor extend the operations of our insti- tutions and laws beyond the limits before assigned to them by the legislative power." (Fleming v. Page, 9 How., 603.) "The Constitution confers absolutely upon the Government of the Union the power of making war and of making treaties; conse- quently that Government possesses the power of acquiring territory, either by conquest or treaty." (American Insurance Co. v. Canter, 1 Pet., 511.) "The war power and the treaty-making power each carries with it authority to acquire new territory." (Stewart v. Kahn, 11 Wall., 493.) '•The power to acquire territory, either by conquest or treaty, is vested by the Consti- tution in the United States." (U. S. v. Huck- abee, 16 Wall.. 414.) The port of Tampico, Mexico, while in the military possession of the United _ States and governed by its military authorities acting under the orders of the President, was not a part of the United States and did not cease to be a foreign country in the sense in which these words are used in the acts of Congress. '•It is true that when Tampico had been cap- tured and the state of Tamaulipas subjugated, other nations were bound to regard the country while our possession continued as the territory of the United States and to respect it as such. * * * As regards all other nations it was a part of the United States and belonged -to them as exclusively as the territory included in our established boundaries. But yet it was not a part of this Union. For every nation which acquires territory by treaty or conquest holds it according to its own institutions and laws. * * * The power of the President under which Tampico and the state of Tamaulipas were conquered and held in subjection was simply that of a military commander prosecuting a war waged against a public enemy hy the au- thority of his Government." Tampico there- fore continued to be a foreign port "nor did our laws extend over it." (Fleming v. Page, 9 How., 603.) Status of Porto Rico while under military government pre\'ious to ratification of treaty of peace ceding the island to the United States: '"During this period the United States and Porto Rico were still foreign countries with respect to each other. * * * The fact that not- withstanding the military occupation of the United States Porto Rico remained a foreign country within the revenue laws is established by the case of Fleming v. Page." (Dooley v. U. S.,182U. S.,222.) "Cuba is none tlie less foreign territorj^ ■within the meaning of the act of Congi-ess, because it is under a military government appointed by and representing the President in the work of assisting the inhabitants of that island to establish a government of their own under which as a free and independent people they may control their own affairs without interference by other nations." As between the United States and all foreign nations, Cul)a was to be treated as if it were conquered ter- ritory. '"But as between the United States and Cuba, that island is territory held in trust for the inhabitants of Cuba to whom it right- fully belongs." (Neely r. Henkel, 180 U. S., 109; see also 23 Op. Atty. Gen., 120.) Government of conquered territory dur- ing war. — By the conquest and military occu- pation of the port of Castine, Me., by the Brit- ish during the War of 1812, "the enemy ac- quired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, sus- pended and the laws of the United States could no longer be rightfully enforced there or be obligator upon the inhabitants who remained and submitted to the conquerors. By the sur- render the inhabitants passed under a tempo- rary allegiance to the British Government and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case no other laws could be ol)- ligator^' upon them; for where there is no pro- tection or allegiance or sovereignty there can be no claim to obedience." (U. S. v. Rice, 4 Wheat., 246.) "Although the city of New Orleans wag con- quered and taken possession of in a civil war waged on the part of the United States to put do'ma an insurrection and restore the supremacy of the National Government in the Confederate States, that Government had the same power and rights in territoiy held by conquest as if the territory had belonged to a foreign country and had been subjugated in a foreign war. * * * In such cases the conquering power has a right to displace the preexisting authority and to assume to such an extent as it may deem proper the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, larger or smaller, according to its pleasure. It may prescribe the revenues to be paid and apply them to its own use or otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may be exerted in such cases saxe those which are foimd in the laws and usages of war. * * * In such cases the laws of wai- take the place of the Constitution and laws of the United States as applied in time of peace." (New Orleans v. New York Mail S. S. Co., 20 Wall., 387; Dooley V. U. S., 182 U.S., 222.) "WTiile his [military commander's] power is necessarily despotic, this must be imderstood rather in an administrative than in a legisla- tive sense. Wliile in legislating for a con- quered country he may disregard the laws of that country, he is not wholly above the la'ws of his own. * * * His power to adminis- ter would be absolute, but his power to legis- late would not be •without certain restrictions — in other words, they would not extend be- yond the necessities of the case. * * * . I* was said that the courts established in Mexico 41 Art. I, Sec. 8. Ft. 1. THE CONSTITUTION. War Power. duruiR the war 'were nothuig more than the apentii of the military- power to a.s.sist it in pre- eervLnp order iji tlie conquered territoiy and to protect the ijihabitants in their persons ajid property while it was occupied by the Ameri- (■;ui arms. They were subject to the militar\^ power luid tlieir deci.sions under its control whenever the commandinfi; officer thouenni1ted. it may be before a dnimheiwl court-martial or the more formal board of a military commission, or both forma may be dis]>en.sod with and the trial and condemnation be enually legal, though not equallv humane and juaicious." (In re Egan, S Fed."C'as. N(.. 4;U);i.) "The will of the military chief * * * is, subject to slight limitations, the law of the mili- tary zone or theater of war. It is sometimes spoken of as a substitute for the c\y\\ law. It is baid also that the ])roclamation of martial law ousts or suspends the ('ivil jurisdiction. These expressions are hardly accurate. The invasion or insurrection sets aside, suspends, and nulU- fiea the actual operation of the Constitution and laws. The guaranties of the Constitution as well ivs the common law and statutes, and the functions and powers of the courts and officers, become inoperative by virtue of the disturb- ance. The proclamation of martial law simply recognizes the status or condition of things re- sulting from the invasion or insurrection and declares it. In sending the army into such territory to occupy it and execute the will of the military chief for the time being, as a means of restoring peace and order, the executive merely adopts a method of restoring and making effective the Constitution and laws within that territory, in obedience to his sworn duty to sup- port the Constitution and execute the laws." (State V. Brown, 71 W. Va., 519, 521; 33 Ann. Cas., 2.) " In most, if not all, of the instances in which the civil courts have treated sentences of the militarj^ commissions as void, the commissions acted and the sentences were pronounced in tranquil territory, not covered by any procla- mation of martial law, in which there was no actual war, in which the Constitution and laws were in full and unobstructed operation." (State V. Brown, 71 W. Va., 519, 524; 33 Ann. Cas., 3.) [" In some ])arts of the country, during the War of 1812, our officers made arbitrary arrests and by military tribunals tried citizens who were not in the military service. These arrests and trials when brought to the notice of the courts were uniformly condemned as ille- gal." (Ex parte Milligan, 4 Wall., 128.)] _ "Power to establish a military commission for the punishment of offenses committed with- in the military zone is challenged in argument; but we think such a comnussion is a recognized and necessary inc'ident and instrumentality of martial government. A mere power of deten- tion of offenders may be wholly inadequate to the exigencies and effectiveness of such govern- ment. How long an insurrection or a war may last depends u])on its character." (State v. Brown, 71 W. Va., 519, 525; 33 Ann. Cas., 4.) "So long as such arrests [without judicial process] are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the governor is the final judge and can not be subjected to an action after he is out of office on the ground that he had not reasonable ground f(jr his belief. * * * When it comes to a decision b>^ the head of the state iipon a matter involving its life, the ordi- nary rights of individuals must yield to what he deem.s tho necessities of the moment." (Moyer V. rcabn.ly, 212 U. S., 78.) "N(j more force, however, can be used than is nec-essary to accomplish the object. And if the power is exercised for tho purposes of op- pression and any injury willfully done to person or property, the party by whom or by whose order it is committed will undoubtedly be answerable." (Luther v. Borden, 7 How., 1.) " It is an unbending rule of law that the exer- cise of military power where the rights of the citizen are concerned shall never be jjushed beyond what the exigency requires." (Ray- mond V. Thomas, 91 U. S., 712.) During the war of 1812 Gen. Jackson de- clared martial law in New Orleans. By his order some of the citizens were arrested for sedi- tious publications. A %vrit of habeas corpus was issued and served on Gen. Jackson, who tore up the writ and sent the judge by force beyond his lines. Later, news was received of the treaty of peace and martial law revoked. The court issued a process against Jackson for contempt of court. He came into court per- sonally, submitted to its jurisdiction, and paid a fine of $1,000. " I have always been taught to beUeve that Judge Hall was right in imposing the fine and that Gen. Jackson earned the brightest page in his history by paying it and gracefully submitting to the judicial power. Such I believe is the judgment of history and of thoughtful judicial inquirers, though a grateful country very properly refunded to her favorite general the sum he had paid for a necessary but unauthorized exercise of mihtary power." (Dissenting opinion of Mr. Justice Miller, Dow V. Johnson, JOO U. S., 158, 194; see also Ex parte Beck (245 Fed. Rep., 967, 973.) Military comniissions. — "The laws of war constitute much the greater part of the law of nations. Like the other laws of nations, they exist and are of binding force upon the depart- ments and citizens of the Government, though not defined by any law of Congress * * * It is manifest from what has been said, that mil- itary tribunals exist under and according to the laws and usages of war in the interest of justice and mercy. They are established to save hu- man life, and to prevent cruelty as far as possi- ble. The commander of an army in time of war has the same power to organize military tribu- nals and execute their judgments that he has to set his squadrons in the field and light bat- tles. His authority in each case is from the law and usage of war. * * * That the laws of war authorized commanders to create and es- tablish military commissions, courts, or tribu- nals for the trial of offenders against the laws of war, whether they be active or secret partici- pants in the hostilities, can not be denied. * * * It must be constantly borne in mind that such tribunals * * * can not exist ex- cept in time of war, and can not then take cogni- zance of offenders or offences where the civil courts are open, except offenders and offences against the laws of war * * * The fact that the civil courts are open does not affect the right of the military tribunal to hold as a prisoner and to try. The civil courts have no more right to prevent the military, in time of war, from try- ing an offender against the laws of war than they have a right to interfere with and prevent a bat- 46 The Navy. Pt. 1. THE CONSTITUTION. Art. I, Sec. 8. tie." (11 Op. Atty. Gen. 297, holding that " the persons charged with the assassination of the President in the city of "Washington, on the 14th of April, 1865, may be lawfully tried before a military tribunal"; see also Carver t). U. S., 16 Ct. Cls^ 361; 111 U. S., 609.) A military commission was without jurisdic- tion to try a member of the United States Army in occupation of Cuba in 1900, for homicide, notwithstanding that the offense was not cog- nizable by Army court-martial. Although Cuba was being governed by the President of the United States, principally by means of American soldiers, it did not have the status of martial law or military government. (23 Op. Atty. Gen., 120.) Rules governing military commissions and provost courts convened by naval authority are published in C. M. O. Nos. 13, 1916, page 6, and 15, 1917, page 8. See "Unconstitutional Claims of Mili- tary Authority," published in Journal of the American Institute of Criminal Law and Crimi- nology, vol. 5, page 718, for criticism of decisions of the United States Supreme Court and other authorities above cited; see also, Johnson v. Duncan, 3 IMartin (La.) 530, 6 Am. Dec. 675, cited in dissenting opinion in Luther v. Borden, 7 How. 83, in dissenting opinion in Re Moyer, 12 L. R. A. (N. S.) 979, 35 Colo. 159, etc. [Clause 12. Raising and support of armies.] ^^ To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two years ; [Clause 13. Provision for a Navy.] ^^ To provide and maintain a Navy; I. Power to Provide Navy. II. Freedom from State Interference. Jurisdiction of Civil Authorities. Responsibility of Military Authori- ties FOR Illegal Acts. Protection of Military Officers for Acts Done in Performance of Duty. III. IV. I. Power to Provide Navy. Distinguished from power to govern Navy. — "The power to formulate Articles for the Government of the Navy and f>unish indi- vidual officers for violation thereof is conferred upon Congress by the clause of the Constitution authorizing it 'to make rules for the government and regulation of the land and naval forces;' [Art. I, sec. 8, clause 14.] The power to pro- vide what persons may be appointed or enlisted in the naval service, the qualifications they must possess, and the total number of the entire force, is conferred by the clause authorizing the Congress 'to provide and maintain a Navy.' Statutes passed under the first clause mentioned are penal and are to be enforced by courts-mar- tial; those passed under the second clause are enacted in the interest of the Na\'y at large and are to be administered by the President either alone or with the aid of examining boards or such other instrumentalities as may be deter- mined upon by Congress. Persons excluded from appointment for lack of any required qualification — health, age, nationality, height, temperament, or any other condition that Con- gress might see fit to impose — are not being pun- ished under penal laws for their failure to measure up to the necessary requirements, but are merely incidentally affected by the Gov- ernment's policy * * * ." (File 26260- 1392, June 29, 1911, pp. 24-25; see also Op. Atty. Gen., Feb. 15, 1918, file 26282-326: 2.) Acquiring and manning ships of war. — This clause authorizes the Government to buy or build any number of steam or other ships of war, to man, arm, and otherwise prepare them for war, and to dispatch them to any accessible part of the globe; and to establish a naval acad- emv to prepare voung men for the naval service. (U.- S. V. Rhodes, 27 Fed. Cas. No. 16151.) Similar authority might be implied in the power to ' 'declare war. " (U. S. v. Burlington, etc.. Ferry Co., 21 Fed. Rep., 340.) Power to compel rnilitary service. — Powers granted to Congress by Article I, sec- tion 8, of the Constitution, include power to compel military service, exercised by the se- lective draft law of May 18, 1917 (40 Stat., 76). This conclusion, ob\'ious upon the face of the Constitution, is confirmed by a histori- cal examination of the subject. (Selective Draft Law Cases, 245 U. S., 366.) Allowance of pensions. — Congress is em- powered to give or withhold a pension, to pre- scribe who may receive it, and to determine all the circumstances and conditions under which any application therefor shall be prosecuted. No man has a legal right to a pension; the whole control of the matter is within the domain of congressional powe*-. (Frisbie v. U. S., 157 U. S., 166; see also U. S. v. Van Leuven, 62 Fed. Rep., 56.) II. Freedom from State Interference. State interference with Federal instru- mentalities. — The principle that no State has the right to interfere with the instrumentalities of the Federal Government has been recognized from the earUest days of our Government. (File 6769-21, July 19, 1911, and 26524-54, Feb. 12, 1914.) ' 'Such is the law with reference to all instru- mentalities created by the Federal Government. Their exemption from State control is essential to the independence and sovereign authority of the United States within the sphere of their delegated powers." (Fort Leavenworth, etc. R. Co. V. Lowe, 114 U. S., 525.) "Such being the distinct and independent character of tlie two Governments within their respective spheres of action, it follows that neither can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of 47 Art. I, Sec. 8. Pt. 1. THE CONSTITUTION. The Navy. the National (.lovernment to preserve its riulit- ftil supremacy iu cases of conflict of autliority. In their kxwa and mode of enforcement neither is resjionsilile to the other. How their respec- tive laAvs shall l)e enacted; how they shall be carried into execution; and in what tribunals, or by what officers; and how much discretion, and whether any at all, shall be vested in their officers, are matters subject to their own control, in the regulation of which neither can interfere withtheother. Now, among the powers assigned to the National Government is the power to raise and support armies and the power to provide for tlie government and regulation of the land and naval forces. * * * No interference with the execution of tliis power of the National Government in the formation, organization, and government of the armies l)y any Stiite offi- cials could be permitted without greatly impair- ing the efficiency, if it did not utterly destroy, this branch of the public service." (IT. S. v. Tarble, 13 Wall., 397.) "A building on a tract of land owned by the United States, used as a foit, or for other public purposes of the Federal Government, is ex- empted, as an instrumentality of the Govern- ment, from any such control or interference by the State as will defeat or embarrass its effective use for those pui-poses " [although such land may not be under the exclusive jurisdiction of the United States]. (Chicago, etc. R. Co. v. McGlinn, 114 U. S., 545, explaining Ft. Leaven- worth R. Co. V. Lowe, 114 U. S., 525.) " If any particular State had it in its power to intermeddle with the police and government of an Army or Na^■y * * * upon any pretext, there would be an end of the exclusive authority of the United States in this respect. Wars and other mea,sures unpopular in particular sections of the country might be impeded in their prose- cution by the interference of the State authori- ties. Such a conflict of jurisdictions must ter- minate in anarchy and confusion." (Argument of Attorney-General, U. S. v. Bevans, 3 Ulieat., 374.) "National banks are instrumentalities of the Federal Government. * * * It follows that an attempt by a State to define their duties or control the conduct of their affairs is absolutely void whenever such attempted exercise of authority expressly conflicts with the laws of the United States and either frustrates the pur- pose of the national legislation or impairs the efficiency of these agencies of the Federal Gov- ernment to discharge the duties for the per- formance of which they were created. " (Davis V. Bank, 161 U. S., 275.) Taxation of Federal instrumentalities. — "If the States may tax one instrumentality employed by the Government in the execution of its powers, they may tax any and every other instrumentality. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the customs- house; they may tax judicial process; they may tax all the means employed by the Gov- ernment to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the States." (McCuUoch v. Maryland, 4 Wheat., 432, per Chief Justice Marshall.) Taxation of Federal property. — "It is familiar law tiiat a State ha,s no power to tax property of the United States witliin its limits. This exemption of their property from State taxation — and by State taxation we mean any taxation by authority of the State, whether it be strictly for State purposes or for more local and special objects — is founded upon that principle which inheres in every independent government, that it must he free from any such interference of another government as may tend to destrov its powers or impair their efliciency." (Wisconsin C. R. Co. v. Price Countv, 133 U. S., 496: Van Brocklin r. Tennes-see. 117 IJ. S., 151.) Poll taxes upon persons in Navy. — "A poll tax upon the person of an officer of the Navy levied by a State or municipality within the confines of which he is ordered officially to perform duty as an agent of the Government in his capacity as such officer is not such a tax as he can be lawfully required to pay." (File 9212-22, Feb. 21, 1912: see also file 9212-^7, and Ex parte White, 228 Fed. Rep., 88.) State tax on Federal automobiles. — "Automobiles purchased for the President under appropriations made by Congress are not subject to taxation by a State, nor can the chauffeurs operating said machines be taxed by a State for the privilege- of performing the duties pertaining to their emplo\Tnent." (28 Op. Atty. Gen., 604.) "A State may, however, in order to protect the public against dangers that might arise from performing the duties of a lawful employ- ment in an unlawfid manner, adopt reasonable police regulations which require that certain conditions be complied with before entering upon such occupation, and the fees intended merely to pay the expenses of complying with these requirements may be exacted." (28 Op. Atty. Gen., 604.) "Under existing law and appropriations an employee of the Federal Government who pays a fee to a State for a chauffeur's license to oper- ate a Goveniment-o\vned motor vehicle on public business is not entitled to reimburse- ment therefor from public fimds. Quaere, whether the Federal Government, while deny- ing the right of a State to exact from it a motor vehicle license fee, should at the same time accept such a license and place the tag e\ddenc- ing it upon such motor vehicle." (23 Comp. Dec, 386.) A law of a State penalizing those who operate motor trucks on highways without having ob- tained licenses based on examination of com- petency and payment of a fee, can not consti- tutionally apply to an employee of the Post Office Department while engaged in driving a Government motor truck over a post road in the performance of his official duty. (John- son v. Mai-yland, 254 U. S., 51.) Hunters' licenses issued by States. — The appropriation "General expenses. Bureau of Entomology," is not available for the payment of a fee for a hunter's license to be issued by a State to a scientific investigator of the De- partment of Agriculture as an attempted condi- tion precedent to his performing his official duties in that State. (23 Comp. Dec, 57.) State taxation of Federal salaries. — ' ' The powers of the National Government can 48 The Navy. Pt. 1. THE CONSTITUTION. Art. I, Sec. 8. only be executed by officers whose services must be compensated by Congress. The_ allowance is in its discretion. The presumption is that the compensation given by law is no more than the services are worth, and only such in amount as will secure from the officer the diligent per- formance of his duties. * * * The com- pensation of an officer of the United Statesis fixed by a law made by Congress. It is in its exclusive discretion to determine what shall be given. * * * Does not a tax, then, by a State upon the office, diminishing the recom- pense, conflict with the law of the United States, which secures it to the officer in its entireness? It certainly has such an effect." (Dobbins v. Commissioners, 16 Pet., 4.35.) Taxation of Federal telegrams. — A State tax upon telegraph messages could not be col- lected upon messages sent by officers of the United States on public business. (Western Union Tel. Co. v. Texas. 105 U. S., 460.) Taxation of Federal contractors. — "Can a contractor for supplying a military post with provisions be restrained from making purchases witlun any State, or from transporting the pro- visions to the place at which the troops were stationed? Or could he be fined or taxed for doing so? We have not yet heard these questions answered in the affirmative. It is true that the property of the contractor may be taxed, as the property of other citizens; and so may the local property of the bank. But we do not admit that the act of purcliasing or of conveying the articles purchased can be under State control." (Osbom V. United States Bank, 9 Wheat., 867.) Taxation of passenger transportation. — "A special tax on raih-oad and stage companies for every passenger carried out of the State by them is a tax on the passenger for the privilege of passing through the State by the ordinary modes of travel and is inconsistent with objects for which the Federal Government was estab- lished and with rights conferred by the Consti- tution on that GoA-ernment and on the people. An exercise of such a power is accordingly void." (Crandall v. Nevada, 6 Wall., 35.) "The Federal power has a right to declare and prosecute wars and as a necessary incident to raise and transport troops tlu-ough and over the territory of any State of the Union. If this right is dependent in any sense, however limited, upon the pleasure of a State, the Gov- ernment itself may be overthrown by an ob- struction to its exercise. Much the largest part of transportation of troops during tiie late re- bellion was by railroads, and largely through States whose people were hostile to the Union. If the tax levied by Nevada on railroad passen- gers had been the law of Tennessee, enlarged to meet the wishes of her pe(jple, the Treasiu-y of the United States could not have paid the tax necessary to enable its armies to pass tlirough her territory." (Crandall v. Nevada, 6 Wall., 35.) "The United States has a right to require the services of its citizens at the seat of Federal Government in all executive, legislative, and judicial departments, and at all points in the several States where the functions of the Gov- ernment are to be performed * * *. The citizens of the United States have the correla- tive right to approach the great departments of the Government, the ports of entry through wliich commerce is conducted, and the various Federal ofiices in the States. The taxing power, being in its nature unlimited over the subjects within its control, would enable the State governments to destroy the above-men- tioned rights of the Federal Government and of its citizens if the right of transit tlirough the States by railroad and other ordinary modes of travel were one of the legitimate objects of State taxation." (Crandall v. Nevada, 6 Wall., 36; compare 28 Op. Atty Gen., 604.) Inspection of powder. — The powder offi- cer for the harbor of Norfolk, appointed under the laws of Virginia to superintend the handling of all powder to and from vessels in the harbor, haa no authority over powder belonging to the Fed- eral Government, and the United States is not liable for any charge for services performed by him imder the authority of that law. (25 Op. Atty. Gen., 234; compare 28 Op. Atty Gen., 604). " It ia not open to question that such a law is the legitimate exercise by the State of its police power so far as its provisions do not affect the agencies of the Federal Government or impair their efficiency in performing the functions which they are designed to perform. No police regulation of a State, however, can be permitted to interfere with the instrumentalities of the Federal Government * * *. If the State of Virginia has authority to control the shipment through the State of powder belonging to the Government and impose a charge therefor, it may stop euch powder at its borders on the ground that it is improperly boxed, or that it is not boxed in accordance with regulations of the State. It is obvious that such a proceeding would seriously interfere with and impede an agency of the Government. If Virginia may make and enforce such a police regiilation, it follows that every other State may do the same * * *. If the State may control the transfer of powder belonging to the Government, it may inspect a regiment of Cavalry under a police regulation providing for the inspection of all horses coming within its borders. If one State may inspect aregiment of Cavalry and im- pose a charge therefor, it follows that every other State may do the same. If a regiment of Cav- alry may be inspected and turned back — for, of course, the power to inspect includes the power to stoj) — an army of Cavalry and Artillery may be inspected and stopped at the borders of a State * * *. If a State imder the exercise of its police power may prevent the Federal Government from sending its troops and mu- nitions of war to different parts of the country, the Constitution did not -in fact 'provide for the common defense.'" (25 Op. Atty. Gen., 234.) Inspection of battleships. — "The health laws of a State do not extend to agencies of the Federal Government, and as battleships belong- ing to the United States are agencies of the Federal Government, the charges by a health officer of a State for the inspection of such bat- tleships are not a legal claim against the United States." (13 Comp. Dec, 672, followed, file 6118-3, Nov. 22, 1907.) 49 Art. I, Sec. 8. PL 1. THE CONSTITUTION. The Navy. "Quarantine charges have been allowed in some instances where naval vessels, particularly colliers which have no medical ollicers on board, arrive from a foreij^n ])ort, or from an infected port in the United St^ites. In such instances It is always assumed that actual services are rendered by the inspecting oihcer, and that such services are necessary in defense and pro- tection of the public health, and the payment isforsuchserWces. The case reported * * * is entirely different. No servdces were ren- dered, and the charge is in the nature of a quar- antine fee or tax. Wliile the department desires to afford all reasonable facilities to quarantine oflicers in making inspections, it can not undertake to pay fees of this character every time a war vessel enters a port of the United States. Such charges are unnecessary and would become onerous if made at every port entered by naval vessels. The bill referred to * * * should, therefore, not be paid." (File 3983, Mar. 5, 190G; followed, fde 6118-2, Dec. 29, 1906.) [This decision was prior to the decision of the Comptroller of the Treasury quoted in preceding paragraph . See also 23 Op. Atty. Gen., 299, noted below.] Inspection of horses. — Where the Federal Government acquiesces in the requirement of State laws and makes arrangements for inspec- tion of its horses in accordance therewith, the expense is properly payable from its appropri- ations. (Comp. Dec, June 12, 1915, War Dept. Bui. No. 26, July 16, 1915, distinguishing 21 Comp. Dec, 449.) Toll for property of United States pass- ing over wharves. — "The State harbor com- missioners of California are charged by the laws of that State with the supervision and control of the wharves and landings of the harbor of San Francisco, with the right to collect dockage, wharfage, rent, or toll. The imposition of a toll or charge by such commissioners on mer- chandise, being the property of the United States, passing to or over the wharves at San Francisco, is constitutional and valid, the charge being for a ser\dce rendered; the Gov- ernment is not entitled to such services free of toll." (23 0p. Atty. Gen., 299.) "It has been adjudged that the United States Government is not entitled to have property or troops transported free over a railroad, even where a land grant provided that the road shall remain a public highway for the use of the Gov- ernment free from all toll or other charges for transportation, since that act did not include free use of rolling stock (Lake Superior & M. R. Co. v.V. S., 93 U. S., 442). This principle fairly includes the Government use of State or municipal wharf and harbor facilities. That is to say, the different^kinds of Government prop- erty affected in this'case, while used for public service and in sovereign and important opera- tions of the Government such as required this shipment, are not instrumentalities or agencies which are necessarily free from local charges for services or facilities generally legitimate. Indeed, from Railroad Co. v. Peniston (18 Wall., 5, 36), showing that a tax upon property of agents of the United States does not necessarily hinder the ellicient exercise of their powers or discharge of their duties, it seems to be a conse- quence that the same distinction would aj)ply to the Government itself, and that a charge upon Government property which was not a tax upon operations of the Government or a direct obstruction to the exercise of Federal powers would not necessarily be invalid. This is also the conclusion to be drawn from Railroad Co. V. United States (93 U. S., 442); so that, while Government property may not be taxed nor Government instrumentalities or agencies nor the operations of the Government be obstructed or burdened in any such way, if the Government is properly liable to pay charges for transporta- tion, a charge for services or facilities analogous to transportation and connected with it would not be a tax and would not be invalid on that score." (23 Op. Atty. Gen., 299; compare 28 Op. Atty Gen, 604). State health laws. — The health authorities of the State of Illinois are without j lu^isdiction to require reports from the naval authorities at Great Lakes, apart from any question of juris- diction over the lands occupied by the naval training station at that place. (File 14560-174, Apr. 19, 1916. See also file 4778-95, Dec. 16, 1916, re training station, San Francisco, Cal.) Exemption from State laws requiring employment of pilots. — "Commanders of public vessels are not required to employ and pay branch pilots upon entering the ports and harbors of the United States. This exemption extends to all vessels belonging to the United States, and employed in the public service, whether they are armed or not." (4 Op. Atty. Gen., 532.) "The penalties imposed by State laws for piloting vessels without due license from the State have no application to persons employed as pilots on board of the public vessels of the United States, the latter vessels being within the exclusive jurisdiction of the United States." (16 Op. Atty. Gen., 647.) Exemption from compvilsory personal services under State laws. — "The salary of a Federal officer may not be taxed; he may be exempted from any personal services which will interfere with the discharge of his official duties, because those exemptions are essential to enable him to perform those duties." (Bank v. Commonwealth, 9 Wall., 353.) Persons connected with the military service of the United States are exempt from perform- ing road duty u])on order of the county authori- ties when comjiliance with such order would interfere with their duty to the Federal Govern- ment. The land for a military post having been purchased by the United States with the consent of the State, neither the State nor other local authorities have power to interfere with any instrumentalities necessary to the pro])er use of such location as a military post. This would be true even if the land had been ac- quired within the State without any consent whatever on the part of the legislature of the State. It is certainly true that the county authorities would have no right to interfere in any way with the troops located at the post. 60 The Navy. Ft. 1. THE CONSTITUTION. Art. I, Sec. 8. It is not claimed that the officers and enlisted men of the Army stationed at the fort are sub- ject to road duty in the county. The same is true of teamsters employed and regularly used by the quartermaster's department at the fort. A military post could not be properly main- tained without teamsters. The character of an Army teamster's service and his duties are such that it would be impossible for him to perform them properly and be at the call of the road commissioners to work public roads of the county outside of the Government's property. The State and county have no right to call on him to be absent from the fort when such ab- sence would interfere with the proper discharge of his duties as a necessary and im]>ortant, even if an humble, part of the Army of the United States. The necessary conclusion is that the detention of the petitioner in jail for failure to perform road duty is in violation of his rights under the Constitution and laws of the United States, such laws including the Articles of War and the Army Regulations, the latter made in pursuance of the statutes of the United States, and therefore for present purposes considered as a part of the statutes. (Pundt v. Pendleton, 167 Fed. Rep., 997; compare Butler v. Perry, 240 U. S., 328.) As to the exemption of civil employees under the War Department from jury duty in a State court where such exemption is not allowed by the court, the Attorney General is reluctant to render an opinion, as to do so might bring him in confUct with a judicial tribunal. In this case the State j udge in refusing the claim noti- fied the War Department that he would excuse the men from such duty if in the department's opinion not to do so would seriously prejudice the public interest. Under these circum- stances no such serious occasion has as yet arisen as would justify the Attorney General in re- \dewing the ruling of the State judge. *" If the claim of right to jury duty from Government workmen shall in the future be so far pressed as to cause serious inconvenience in your [Sec- retary of War's] judgment, of course I can not then hesitate to meet the question." (20 Op. Atty. Gen., 618; see also file 21090-3, Sept. 3, 1908.) Limitation upon exemption from. State interference. — "These agencies [of the Fed- eral Government] are exempt from State control by police regulation, or by the exercise of the taxing power, so far only as that legislation may interfere with or impair their efficiency in per- forming the functions by which they are de- signed to serve the Government." (Bank v. Commonwealth, 9 Wall., 353; Railroad Co. v. Peniston, 18 Wall., 5; Western Union Tel. Co. V. Mayor, 38 Fed. Rep., 560.) III. Jurisdiction of Civil Authorities. Exemption of Federal officers and sub- ordinates from arrest by State author- ities.— "An officer of the United States Army, in the discharge of his duty, acting in obedience to commands by the Secretary of War, who in turn is executing an act of Congress, is not sub- ject to arrest on a warrant or order of a State court, and * * * such arrest is wholly ille- gal." (In re Turner, 119 Fed. Rep., 231; see also State v. Burton, 103 Atl., 962.) "It is begging the whole question, and it is idle, to say that any and all Federal officers are amenable and subject to the laws, civil and criminal, of Iowa when within the State. Of course they are. The Secretary of War, the general of the Armies, the Chief Justice, and even the President, perhaps, are subject to all laws of Iowa when in Iowa. No one disputes this. But that is not the question. Can any one of those officers, or any subordinate, in the discharge of his duties as a Government officer, be subject to the laws of the State while in the State? That is the question and the only ques- tion. The State is not greater than the Nation, but, on the contrary, the State is but a part, and a small j)art, of the Nation. And, if I am wrong, then instead of the President, and the Secretary of War, and the general of the Army, being in control, we will have army commands given by and through the courts, and an officer like Major Turner cashiered and dismissed from the service if he refuses to obey the commands from his superiors, and if he does obey them, thrown into a county jail for contempt of court.'' (In re Turner, 119 Fed. Rep., 231.) "The arrest, under authority of a State, of a Federal officer, and that officer one of the Federal Army in the performance of a com- mand by a superior which he dare not disobey, presents a matter of urgency, and it is within the discretion of the Federal court to at once take cognizance of the case, and act at once, rather than allow the case to be carried through three courts, taking two or three years of time." (In re Turner, 119 Fed. Rep., 231.) [In this case an officer of the Army was enjoined by a State court from obeying the orders of the Secretary of War. He disregarded the in- jimction and was attached and imprisoned for contempt. His release was ordered by the Federal court upon writ of habeas corpus.] There is no act of Congress authorizing a call by the governor of a State for the surrender of an officer of the Navy charged with having broken the peace of such State, nor any law authorizing an arrest by the Executive with a view to a forcible surrender by him for the purposes of trial. However, advised that the accused be ordered by the Navy Department to surrender himself. (1 Op. Atty. Gen., 244. See further, note to Art. IV, sec. 2, clause 2, and Art. I, sec. 8, clause 14; see also note to sec. 355, Revised Statutes.) The State authorities are not empowered to arrest persons, either in the naval or the civil service of the United States, within the limits of a navy yard, whether on shore or on board vessels at the yard, without fir.st obtaining the permission of the commandant, to the end that such service of process shall not interfere with or obstruct operations of the United States Gov- ernment. (File 6769-21, July 19, 1911.) However, where a police officer, holding a warrant for the arrest of an enlisted man upon a charge of misdemeanor, persuaded the man to leave his vessel on liberty and accompany the police officer outside the limits of the navy yard, there making the arrest, it was held by the 51 Art. I, Sec. 8. Pt. 1. THE CONSTITUTION. The Navy. Attorney General that while there are authori- ties which iudirato that an ai>])lication to the coinniandins^ otiiror is a norcssary condition precedent to the State's acquirinc: jurisdiction (especially Ex ]>arte McRol>crts, l(j Iowa, GOO, G04), yet the better Wew, as held in the case of In re O'Connor (:]7 Wis., 379), is that applica- tion to the commandinfr ollicer is not juris- dictional, the matter l)cin,i; one that does not go to the jurisdiction ol" the civil court issuing the Iirocess; that there is no doubt that the mem- )ers of the military forces of the United States are 8ul)ject in times of ]ieace to the criminal laws of the States; and, accordingly, that want of an ai)i)lication to the commanding oflicer would be a mere informality which might make the warrant of arrest irregular but would not make it void or liable to be attacked upon a habeas corpus ])roceeding. (File 7657-261:1, Nov. M, 19J4.) "If the civil magistrate has become de facto seized of a case of murder, if indictment is pending, if the accused is thus in the actual jurisdiction of the law of the land, it is not mate- rial to the validity of the proceedings at law and the right of the magistrate to go on accord- ing to the lex loci, whether the party passed into the hands of the magistrate regularly, by the act and with the consent of his commanding officer, or whether by breach of arrest of the partv, desertion, or anv other violation of mili- tarj^'duty." (6 Op. Atty. Gen., 413.) A mail carrier, although on duty, is subject to arrest by the State authorities upon a charge of murder. (U. S. v. ICirby, 7 Wall., 482, hold- ing specifically that the police officer making such arrest was not su])ject to criminal proceed- ings for \dolation of the Federal statute against delajdng the mails.) From this decision of the Sui)reme Court it would appear that the well- established principle, that the State authorities can not interfere with an instrumentality of the Federal Government, is subject to an excejition in a case where a person of the Federal Govern- ment is arrested in good faith, upon a charge of felony. However, it would seem that the charge upon which such an arrest is made would require a very clear prima facie case to warrant such action, as otherwise the Federal Government might be seriously interfered with and embarrassed in its official functions. In the case presented, an enlisted man was arrested upon a charge of felony while traveling through a State under orders; was acquitted , and has been released and proceeded to carry out his orders. This would have been a good casein which to test the question, in view of the fact, as now appears, that the charge was wholly without foundation. In its present status it does not a])]iear that there is any action which can be taken by the Government. Should another case of this character arise, and the department be promptly informed thereof, consideration might be given to the feasiljility of having the legality of the arrest tested in hal)eas corpus proceedings instituted in behalf of the United States. (File 26524-70, Aug. 12, 1914.) The imposition of a sentence of imprisonment for 60 days on a solflier by the authorities of a city for a ^dolation of a city ordinance, where the act charged did not result in nor threaten any in- jury to person or property, is unwarranted, and the soldier will be discharged by the Federal court and restored to the custody of his com- manding oflicer, on ])etition of the latter in ha- beas cor])U3 i)roceeding3. (Ex parte Schlaffer, 15-1 Fed. Rep.. 921.) While an enlisted soldier in time of ])eace may be subjected to arrest and punishment for vio- lation of a numici])al ordinance, the same as a civilian, yet where any ])unishment is sought to be iullicted which will interfere Avith the per- formance of the duties which he owes to the United States, the utmost good faith is required from the civil authorities and any unfa ir or un- just discrimination against the offender because he is a soldier, or departure from the strict re- quirements of the law, or any cruel or unusual punishment, can be as justly inquired into by the Federal courts in proceedings instituted by his commanding officer as it can be in pro- tecting the interests of the United States in any matter where its necessary governmental agen- cies are involved. (Ex parte Schlaffer, 154 Fed. Rep., 921.) "A court or judge of the United States has power to issue a writ of habeas corpus on peti- tion of the United States for the purpose of an inquiry into the cause of detention of a ])risoner held by a State to answer to a criminal charge, where it is alleged by the petitioner that the act charged as a crime was committed by the pris- oner in the performance of his duty as a soldier of the United States; and it has authority to de- termine summarily as a fact whether or not such allegation is true, and if found to be true to dis- charge the prisoner on the ground that the State is without jurisdiction to try him for such act." (U. S. V. Lipsett, 156 Fed. Rep., 65.) "It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a State court, and sub- ject to its laws, may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the State and finally discharged therefrom, and thus a trial by the State court of an indictment foimd under the laws of that State be finally prevented. Cases have oc- cui'red of so exceptional a nature that this course has been pursued." (Drury v. Lewis, 200 U. S., 1, quoting from Baker v. Grice, 169 U. S., 284. In the Drury case the court re- manded the accused for trial to the State court, the evidence being conflicting as to whether or not he had in fact exceeded his Federal authority.) We are of opinion that while the circuit coiirt has the power to do so, and may discharge the accused in advance of his trial, if he is re- strained of his liberty in violation of the National Constitution, it is not bound in every case to exercise such a power immediately upon application for the writ. We can not suppose that Congress intended to compel those courts, by such means, to draw to themselves, in the first instance, the control of all criminal prose- cutions commenced in State courts exercising authority within the same territorial limits, where the accused claims that he is held in custody in violation of the Constitution of the United States. The Federal courts should exercise their discretion in the Light of the rela- tions existing under our system of Govem- 52 The Navy. PL 1. THE CONSTITUTION. Art. I, Sec. 8. ment between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary con- flict between courts equally bound to regard and protect rights secured by the Constitution. (Ex parte Royall, 117 U. S., 241; see also Tiusley v. Anderson, 171 U. S., 101; Ex parte Wood, 155 Fed. Rep., 190.) In the absence of express statutory authori- zation, the general authority of the President to see that the laws of the United States are faithfully executed empowered him to ap- point a deputy marshal to protect a Federal judge whose life was threatened in consequence of the conscientious and faithful discharge of his duties. Where such deputy was arrested and brought to trial in a State court upon a charge of minder, for a homicide committed while acting witliin the line of duty thus as- signed him, he was entitled to release on habeas corpus issued by a Federal judge. (In re Neagle, 135U. S., 1.) It is recognized that during times of peace the military power in the United States is sub- ordinate to the ciWl, and that an enlisted man is amenable to the statutory law and under proper circumstances and on necessary occa- sions may be subject to arrest and detention for the violation of municipal ordinances the same as any ciNilian. The relations existing between the police force and the enlisted men and the peace and welfare of the community demand consistent and harmonious action, both by the ofhcers in command on the one side and the higher municipal authorities on the other, in checking and controlling the forces under each. The enUsted man should be as obedient and sub-serxdent to cIatI law when called upon as he is to mihtaiy law, and the municipal au- thorities should recognize his peculiar condi- tions and res])onsibilities and act in harmony and accord with his officers. It is not consid- ered that enlisted men should be treated and held in any detention or attempted ]:)unish- ment the same as though they were answerable to no other power. Their position and the re- cpiirements of their con'stitutional duty- demand in behalf of the National Government from the municipal authorities such a recognition of its rights as would accomplish a preservation of the peace and the observance of the city ordi- nances without in any way affecting their du- ties as soldiers. (Ex parte Schlaffer, 154 Fed. Rep., 921.) Where persons in the Navy or Marine Corps are arrested by the Federal or State authorities Avhile on leave for criminal offenses and return to duty under bail, they may be granted leave of absence by their commanding officer in order to appear in the ciAdl court for trial. (File 5322, G. O. No. 121, par. 17, Navy Dept., Sept. 17, 1914.) _ By enlistment a person is not absolved from liability to arrest for taxes on property due pre- vious to his enlistment. (Webster v. Seymour, 8Vt., 135.) State courts can not order release of persons held by authority of United States. — "Xo State, judge, or court, after they are judicially informed that a party is im- prisoned under the authority of the United States, has any right to interfere with him, or require him to be brought before them. And if the authority of the State, in form of judicial process or otherwise, should attempt to control the marshal or other authorized officer of the United States, in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary' to maintain the authority of the law against illegal interference." (Ableman v. Booth, 21 How., 506.) "We do not question the authority of the State court, or judge, who is authorized by the laws of the State to issue the writ of habeas corpus, to issue it in any case where the party is imprisoned within its territorial Limits, pro- \'ided it does not appear, when the application is made, that the person imprisoned is in cus- tody under the authority of the United States. Tliecourtor judge has a right to inquire, in this mode of proceeding, for what cause and by what authority the prisoner is confined within the territorial limits of the State 80vereignt\^ But after the return is made, and the State judge or court is judicially apprised that the party is in custody under the authority of the United States, they can proceed no furtlier." (Ableman v. Booth, 21 How., 506; see also United States v. Tarble, 1.3 Wall., 397.) In the event that a writ of habeas corpus should be issued by a State court to a com- manding officer of the Navy or Marine Corps, afloat or ashore, the latter will commimicate with the Secretary of the Nav^^; and, if in- structions are not received by the commanding officer from the Secretary of the Nai-y by the return day of the writ, the officer upon whom the writ is served will make return thereto, showing that the party is held by authority of the United States, but without producing the bodv of the partv in court. (G. O. No. 121, Sept. 17, 1914; compare 12 Op. Atty. Gen., 258.) State courts cannot punish perjury committed before Federal court. — "The power of punishing a witness for testifying falsely in a judicial proceeding belongs pecu- liarly to the Government in whose tribunals that proceeding is had. It is essential to the impartial and efficient administration of justice in the tribunals of the Nation that witnesses should be able to testify freely before them, un- restrained by legislation of the State or by fear of punishment in the State courts. The ad- ministration of justice in the national tribunals would be greatly embarrassed and impeded if a witness testifying before a court of the Umted States, or upon a contested election of a Member of Congress, were Liable to prosecution and punishment in the courts of a State upon a charge of perjury preferred by a disappointed suitor or contestant or instituted by local pas- sion or prejudice. A witness who gives his testimony, pursuant to the Constitution and laws of the United States, in a case pending in a court or other judicial tribunal of the United States, whether he testifies in the presence of that tribunal, or before any magistrate or officer either of the Nation or of the State) designated) by act of Congress for that purpose, is account- able for the truth of his testimony to the United States only; and perjury committed in so testi- fying is an offense against the pubhc of the 53 Art. I, Sec. 8. Pi. 1. TUE CONSTITUTION. The Navy. United States, and within the exchiaivc juris- diction of the courta of the United fcjtates." (Tlionuia r. I-,oney, 134 U. S., 372.) Mandamus against Federal officers. — See nolo to Article 11, section 1, clause 1, "^huuiainurt a.u'ainst heads of d(']>artiuciit,s.'' Habeas coi-pus proceedings in Federal courts to discharge persons from the Navy. — \\'here a peraon is being held for trial by court-martial, he will nut bedi.sdiarged from the jurisdiction of the court and from the nuli- tary service even though hi.s original enlistment was fraudulent. (In re Morrissey, 137 U. S., 157; Ex parte Rock, 171 Fed. Kep., 240; Dil- lingham V. Booker, l(i3 Fed. Kei)., 090, file 595(>-(i; In re Scott, 144 Fed. Kep., 79, file 2757^; In re Lessard, 134 Fed. Kep., 305; U. S. V. Reaves, 126 Fed. Kep., 127, file 152-04; Solomon v. Davenport, 87 Fed. Re])., 318; see also file 5624, Feb. 17, 1896; compare Ex parte Baklej, 148 Fed. Rep., 56, afiirmed, Dilling- ham V. Baklev, 152 Fed. Rep., 1022, file 5506-5; and Ex parte Lisk, 145 Fed. Rep., 860, file 2757-8, in which latter cases the court ordered the petitioner's release from naval custody.) For other decisions, see note to Article I , sec- tion 8, clause 14, "Judgments of courts-martial acting within their jurisdiction not open to re- view l)y civil courts," and see note to section 761, Revised Statutes. IV. Responsibility of Military Authori- ties FOR Illegal Acts. Civil responsibility of persons in military service. — "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the Government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only su- preme power in our system of Government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to the supremacy and to observe the liabilities wliich it imposes upon the exercise of the authority wliicli it gives." (U. S. v. Lee, 106 U.S., 196.) A person making an illegal arrest, even when the privilege of the writ of habeas corpus is sus- pended, is liable to damages in a civil suit for such arrest, and to punishment in a criminal prosecution. (Griffin v. Wilcox, 21 Ind., 372.) Although martial law exists, "no more force * * * can be used than is necessary to ac- complish the object. And if the power is exer- cised for the purpose of oppression and any in- jury willfully done to person or property, the party by whom or by whose order it is com- mitted, will undoubtedly be answerable." (Luther v. Borden, 7 How., 1.) At the close of the War of 1812, Gen. Jackson was sentenced to pay a fine of $1,000 for con- tempt of court, in refusing obedience to a writ of habeas corpus, which fine he paid. (See Dow v. Johnson, 100 U. S., 158, 194, noted under Art. I, sec. 8, clause 11, "Effect of martial law ".) Captain of a ship. — "No doubt there are cases where the expert on the spot may be called upon to justify his conduct later in court, notwithstanding that he had sole cona- mand at the time and acted to the best of his knowledge. That is the position of the cajitain of a ship." (Moyer v. Peabody, 212 U. S., 78.) A commanding officer in the Navy "is not to be shielded from re.sponsibility if he acts out of his authority or jurisdiction, or inflicts private injury, either from malice, cruelty, or any species of opi)reasion founded on considerations independent of public ends. The humblest seaman or marine is to be sheltered under the aegis of the law from any real wrong as well as the highest in office." (Wilkes v. Dinsman, 7 How., 89.) [In tliis case suit was brought by a marine against the commanding officer of a squadron, the marine alleging that he was ille- gally detained on board after the expiration of his term of enlistment, and that he was illegally punished by the commanding officer. Judg- ment was given against the squadron com- mander, but was reversed by the Supreme Court, which, while making the above state- ment as to the responsibility of commanding officers, held that in this case the detention was legal, and that the commanding officer had the legal right to infiict punishment; that "the commander was acting as a public officer, invested with certain discretionary powers, and can not be made answerable for any injury when acting within the scope of his authority and not influenced by malice, corruption, or cruelty. His position is quasi judicial. Hence the burden of proof that the officer exceeded his powers is upon the party complaining ; the rule of law being that the acts of a public officer on public matters witliin his jurisdiction, and where he has a discretion, are to be presumed legal until shown by others to be unjustifiable. It is not enough to show that he committed an error in judgment, but it must have been a malicious and willful error." See Dinsman v. Wilkes (12 How., 389^.] Members of a court-raartial.— Members of a duly constituted and organized naval court- martial "are responsible in civil courts for any abuse of power or illegal proceedings." (Par. 241, Naval Courts and Boards, 1917.) [On gen- eral subject of responsibility of judges of civil courts, see Spalding v. Vilas, 161 U. S., 483, and Bradley v. Fisher, 13 Wall., 335.] "If a court-martial has no jurisdiction over the subject matter of the charge it has been convened to try, or shall inflict a punishment forbidden by law, though its sentence shall be approved by the officers having a revisory power of it, civil courts may on an action of a party aggrieved by it inquire into the want of the court's jurisdiction and give him redress." (Dynes v. Hoover, 20 How., 65.) "In such cases, as has just been said, all of the parties to such illegal trial are trespassers upon a party aggrieved by it, and he may re- cover damages from them on a proper suit in a civil court by the verdict of a jury. ' ' (Dynes v. Hoover, 20 How., 65.) ' ' According to our laws, all military courts are under a constant subordination to the ordinary courts of law. Officers who have abused their powers, though only in regard to their own sol- diers, are liable to prosecution in a court of law, and compelled to make satisfaction. Even any flagrant abuse of authority by members of a court-martial, when sitting to judge their own people and determine in cases entirely of a 54 The Navy. PL 1. THE CONSTITUTION. Art. I, Sec. 8. military kind, makes them liable to the animad- version of the civil judge." (Johnson v. Dun- can, 6 Am. Dec, (j7!J; 3 Martin (La.), 530.) Judge Advocate General of the Navy. — In 1904 suit was entered by Paymaster Robert B. Rod uey, retired, against Capt. Sam. C. Lemly, Judge Advocate General of the Navy, based upon action alleged to have been taken by Captain Lemly in hia official capacity. The rnited States attorney for the District of Co- lumbia was instructed by the Department of Justice to appear in behalf of the Judge Advo- cate General in response to the summoiis upon the latter. June 23, 1904, an order was entered by the chief justice of the Supreme Court of the District of Columbia dismissing the suit. (At law. No. 4G683, Supreme Couirt of the Dis- trict of Columbia; file 204-04.) Illegal order not a defense. — "It can never be maintained that a military officer can justify himself for doing an unlawful act by producing the order of his superior. The order may palliate, but it can not justify'." (Mitchell V. Harmony, 13 Wall., 115.) ''Neither the Secretary of the Treasury nor the President could nullify the statute, and though the defendant [collector of the port of New York] may have thought himself bound to obey the instructions of the former, his mis- taken sense of duty could not justify his refusal of the clearance, and these instructions afford him no protecticm unless they were authorized in law." (Hendricks i). Gonzalez, 67 Fed. Rep., 351; see also Kilbourn v. Thompson, 103 U. S., 168.) A naval officer is liable in an action of trespass for seizing the plaintiff's ship in ol^edience to an order of the President based upon a misinter- pretation by him of an act of Congress. ''I con- fess the first bias of my mind was very strong in favor of the opinion that, though the instruc- tionsof the Executive could not give a right they might yet excuse from damages. I was much inclined to tliink that a distinction ought to be taken between acts of civil and those of mili- tary officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, and wliich indeed is indispensably necessary to every military system appeared to me strongly to imply the principle that those orders, if not to perform a prohiliited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. * * * But I have been con\inced ihat I was mistaken, and I have re- ceded from this first opinion. I acquiesce in that of my brethien, wliich is that the in- structions can not change the nature of the transaction nor legalize an act which without them would have been a plain trespass. ' ' (Lit- tle D. Barreme, 2 Cranch, 170, opinion of Cliief Justice Marshall.) [In this case the Supreme Court affirmed the judgment of the lower court against the officer, in the sum of $8,504 damages and costs.] "In time of peace, at least, an officer is not obliged to obey an illegal order. * * * It becomes his duty, at once or within a reason- able lime, to appeal to the highest authority for revocation, modification, or correction of the illegal order." (Ide v. U. S., 25 Ct. Cls., 407; 150 U. S., 517. See also C. M. O. 37, 1915.) "Captain Gambler, of the British Navy, by the order of Admiral Boscawen, pulled down the houses of sutlers on the coast of Nova Scotia, who were supplying the sailors with spirituous Liquors, the health of the sailors being injured by frequenting them. The motive was evi- dently a laudable one, and the act done for the pubUc service. Yet it was an invasion of the rights of private property and without the au- thority of law, and the officer who executed the order was held liable to an action, and the sut- lers recovered damages against him to the value of the property destroyed." (See Mitchell v. Harmony, 13 How., 115.) An officer of the Army was sued for seizing property of plaintiff diuing the war with Mex- ico imder the order of his superior officer. Judgment was rendered against defendant and affirined bv the Supreme Court, amounting to $104,562.23. Plaintiff was a trader and went from the United States into the adjoining Mexi- can pro\inces, which were in possession of the military authorities of the United States, for the piu-pose of caiTying on a trade which was sanctioned by the executive branch of the Government (as a means to conciliation of the pro\'inces bordering on the L^nited States) and also by the commanding military officer. "It is certainly true as a general rule that no citizen could lawfully trade with a pubUc enemy; and if foimd to be engaged in such illicit traffic hia goods are liable to seizure and confiscation. But the rule has no application to a case of this kind; nor can an officer of the United States seize the property of an American citizen for an act which the constituted authorities, acting within the scope of their lawful powers, have authorized to be done." Accordingly held that "it was improper for an officer of the United States to seize the property upon the ground of trading with the enemy;" and that 'the officer w^ho made the seiziu-e can not jus- tify his trespass by shoA\'ing the orders of hia superior officer. An order to commit a trespass can afford no justification to the person by whom it was executed; " that "if the jjower ex- ercised by Col. Doniphan had been within the limits of a discretion confided to him by law, his order would have justified the defendant even if the commander had abused his power or acted from improper motives. But we have already said that the law did not confide to him a discretionary power over private prop- erty. Urgent necessity would alone give him the right; and the verdict finds that this ne- cessity did not exist. Consequently the order given was an order to do an illegal act, to com- mit a trespass upon the property of another, and can afford no justification to the person by whom it was executed. The case of Captain Gambier, to which we have just referred, is di- rectly in point upon this question." (Mitchell V. Harmony, 13 How., 115.) "The willful killing of a soldier by a guard may be as clearly murder as the willful killing of one citizen by another. Nor will any order of a superior officer to an inferior in rank justify the willful killing of a person under the peace and protection of the law. A soldier is bound 55 Art. I, Sec. 8. n. 1. THE CONSTITUTION. The Navy. to obey only the lawful orders of his superiors. If he receive.s an order to do an unlawful act, he is bound neitlier by his duty nor his oath to do it. So far from such an order being a justifica- tion, it makes the party giving the order an jicconi]ilice in the crime. For instance, an or- der from an officer to a soldier to shoot another for disrespectfid words merely would, if obeyed, be murder both in the officer and soldier." (U. S. V. Carr, 25 Fed. Cas. No. 14732; see be- low, " Order not clearly illegal may be defense," and "Extenuating and aggravating circum- stances.") Order not clearly illegal may be de- fense. — "The law is that an order given by an iithcer to his private, which does not expressly or clearly show on its face its illegality, the soldier is bound to obey; and such order is his full protection. The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in an army. If every subordinate officer and soldier were at liberty to question the legality of the orders of the commander, and obey them or not as he may consider them valid or invalid, the precious moment for action would be wasted. Its law ia that of obedience. No question can be left open of the right to command in the armv, or of the duty of obedience in the soldier. " (In re Fair, 100 Fed. Rep., 149; U. S. v. Lipsett, 156 Fed. Rep., 71.) An order illegal in itself and not justifiable by the rules and usages of war, so that a man of ordinary sense and understanding would know when he heard it read or given that the order was illegal, would afford a soldier no protection for a crime committed under such order; but an order given by an officer to his private which does not expressly and clearly show on its face or body thereof its own illegality the soldier would be bound to obey and such order would be a protection to him. (Riggs v. State, 43 Tenn. (3 Cold.), 85; U. S. v. Clark, 31 Fed. Rep., 710, 717.) " Except in a plain case of excess of authority, where at first blush it is apparent and palpable to the conunonest understanding that the order is illegal, I can not but think that the law should excuse the military subordinate when acting in obedience to the order of his com- mander. Otherwise he is placed in the dan- gerous dilemma of being liable for damages to third persona for obedience to an order, or to the loss of his commission and disgrace for disobedience thereto * * *, The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in the Army. If every suboidinate officer and soldier were at liberty to question the legality of the orders of the commander, and obey them or not as he may consider them vaUd or invaUd, the camp would be turned into a debating school where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opinions. ' ' (McCall V. McDowell, 15 Fed. Cas. No. 8G73; quoted with approval, U. S. v. Clark, 31 Fed. Rep., 710, 716; U. S. v. Lipsett, 156 Fed. Rep., 71.) "A miUtary subordinate is not hable in damages for making an illegal arrest if he acted in pursuance of an order from his superior wliich was legal on its face; the hability for the false imprisonment ia confined to the officer who gave the order." (McCall v. McDowell, 15 Fed. Cas. No. 8673.) "The defendant does not stand in the situ- ation of an oflicer who merely obeys the com- mand of his superior," if "it ap]>ears that he advised the order and volunteered to execute it when according to miLitarj' usage that duty more properly belonged to an officer of inferior grade." (Mitchell v. Harmony, 13 How., 115.) " Soldiers might ieasonal)ly think that their officer had good grounds for ordering them to fire into a distirderly crowd which to them might not appear to be at that moment engaged in a(;ts of dangerous violence, but soldiers could hardly su])pose that their officer could have any good grounds for ordering them to fire a volley down a crowded street when no disturb- ance of any kind was either in progress or apprehended. The doctrine that a soldier is bound under all circumstances whatever to obey his superior officer would be fatal to military discipUne itself, for it would justify the private in shooting the colonel Ijy the oiders of the captain, or in deserting to the enemy on the field of battle on the order of his immediate superior. I think it is not less monstrous to suppose that superior orders would justify a soldier in the massacre of unoffending civihans in time of peace, or in the exercise of inhuman cruelties, such as the slaughter of women and children, during a rebelUon. The only line that presents itself to my mind is that a soldier should be protected by orders for wliich he might reasonably beUeve hia officer to have good grounds. The inconvenience of being subject to two jurisdictions, the sjinpathies of which are not unUkely to be opposed to each other, is an inevitable consequence of the double necessity of preserving on the one hand the supremacy of the law, and on the other the discipline of the Army." (2 Willoughby Con&t., 1195, quoting 1 Stephen's Hist. Cr. L. Eng., 205.) "An army is not a deliberative body. It is the executive arm. Its law is that of obedi- ence. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier." (In re Grimley, 137 U. S., 153. See also6 Op. Attv. Gen., 357, 365, and Martin v. Mott, 12 Wheat,, 30.) Extenuating and aggravating circum- stances. — "In respect to those compulsory duties, whether in reenlistiug or detaining on board or in punishing or imprisoning on shore, while arduously endeavoring to perform them in such a manner as might advance the science and commerce and glory of his country rather than hia own personal designs, a pubhc officer invested with certain discretionary powers never has been and never should be made answerable for any injiu-y when acting within the scope of his authority and not influenced by maUce, corruption, or cruelty * * *. The officer being intrusted with a discretion for pubUc puq)oses is not to be punished for the exercise of it, unless it is first proved against him either that he exercised the power con- fided to bim in cases without his jurisdiction or in a manner not confided to him, as, with maUce, cruehy, or willful oppression, or in the words of Lord Mansfield, that he exercised it 56 The Navy. Pt. 1. THE CONSTITUTION. Art. I, Sec. 8. as if 'the heart, is wrong.' In short, it is not enough to show that he committed an error in judgment, but it must have been a malicious and wiUful error." (U. S. v. Clark, 31 Fed. Rep., 710, 716; Wilkes v. Dinsman, 7 How., 89.) "In an action of false imprisonment the defendant [plaintiff], by his gross and incen- diary language on the news of the assassination of Abraham LincoLn, the President of the United States, ha^ang provoked his arrest, though the same was illegal, such provocation must be taken into account in mitigation of damages." (McCall v. McDowell, 15 Fed. Cas. No. 8673.) "In an action for false imprisonment, where the arrest complained of was illegal but was caused by the defendant while acting as com- manding officer of a military department of the United States, without malice or intention to injure or oppress the plaintiff, but from good motives and considerations involving the public peace and safety, the plaintiff is only entitlecf to recover compensatory damages." (McCall V. McDowell, 15 Fed. Cas. No. 8673.) "The move upon Chihuahua was imdoubt- edly undertaken from high and patriotic mo- tives. It was boldly planned and gallantly executed and contributed to the successful issue of the war. But it is not for the court to say what protection or indemnity is due from the public to an officer who, in his zeal for the honor and interest of his country, and in the excitement of military oi>erations, has tres- passed on private rights. That question be- longs to the political department of the Govern- ment." (Mitchell V. Harmony, 13 How., 115.) In Beckwith v. Bean (98 U. S., 266) a judg- ment for $15,000 against two Army officers for arresting a civilian during the Civil War on the charge of aiding and abetting deserters from the Army, was reversed on the ground that certain evidence in mitigation had been erroneously excluded by the trial court; and that, if the officers acted in good faith, as the evidence ex- cluded was intended to show, "they were entitled by every consideration of justice to stand before the jury in a more favorable light upon the question of damages than they would or should have stood had they been actuated by ill-will or sought to oppress one whose conduct had not justified the conclusion that he had violated any law." "If a homicide be committed by a military guard without malice and in the performance of his supposed duty as a soldier, such homicide is excusable unless it was manifestly beyond the scope of his authority or was such that a man of ordinary sense and understanding would know that it was illegal." (U. S. v. Clark, 31 Fed. Rep., 710.) [In this case it was held that the finding of an Army court of inquiry was entitled to great weight as showing that guard was not to blame.] "In charging the jury in U. S. v. Carr, 1 Woods, 484 [25 Fed. Cas. No. 14732], Mr. Justice Woods instructed them to 'inquire whether at the moment he fired his piece at the deceased, with his surroundings at that time, he had reasonable grounds to beUeve and did believe that the killing or serious wounding of the de- ceased was necessary to the suppression of a mutiny then and there existing, or of a disorder which threatened speedily to ripen into a mu- tiny. If he had reasonable ground so to believe, and did so beUeve, then the kilUng was not un- lawful. * * * But it must be understood tliat the law will not require an officer charged with the order and discipline of a camp or fort to weigh with scrupulous nicety the amount of force necessary to suppress disorder. The ex- ercise of a reasonable discretion is all that is re- quired." (U. S. V. Clark, 31 Fed. Rep., 716.) "A public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion, even although an individual may suffer by his mistake. A con- trary principle would, indeed, be pregnant with the greatest mischiefs." (Kendall v. Stokes, 3 How., 87; see also Spalding v. Vilas, 161 U. S., 483.) "The defendant having caused the arrest and imprisonment of the plaintiff, who was a civil- ian and not amenable to military law, it was his duty to make provision against his being treated with undue harshness and severity or subjected to any treatment or discipline not necessary and proper to restrain him of his liberty for the time being; and having failed to do so and suffered the plaintiff to be confined in the guardhouse with dnmken soldiers and to be compelled to lay in common with military culprits, the damages for the false imj^rison- ment must be enhanced on account of such treatment." (McCall v. McDowell, 15 Fed. Cas. No. 8673.) "But in this case the defendant does not stand in the situation of an oflScer who merely obeys the command of liis sui)erior. For it appears that he advised the order and volun- teered to execute it when according to military usage that duty more properly belonged to an officer of inferior grade." (Mitchell v. Har- mony, 13 How., 115.) V. Protection of Military Officers foe Acts Done in Performance op Duty. Congress may protect oflB.cers against civil or criminal responsibility. — "Congress has power to i^rotect officers and persons engaged or concerned in making arbitrary arrests and im- prisonments, or arrests or imprisonments with- out ordinary legal warrant or cause, under the authority or in pursuance of an act suspending the writ of habeas corpus, by the passage of laws indemnifying such officers and persons against the ordinary legal consequences thereof or de- claring that they shall not be liable to an action or other legal proceeding therefor." (McCall V. McDowell, 15 Fed. Cas. No. 8673.) " It is not for the court to say what protection or indemnity is due from the public to an officer who, in his zeal for the honor and interest of his country and in the excitement of military operations, has trespassed on private rights. That question belongs to the political depart- ment of the Government." (Mitchell v. Harmony, 13 How., 115.) An act of Congress passed during the Civil War (Mar. 3, 1863, 12 Stat., 756) providecl that any order of the President during the existing war should be a defense to any prosecution, 57 Art. I, Sec. 8. rt. 1. THE CONSTITUTION. Land and Naval Forces. civil or criminal, "for any search, seizure, arrest or inipriii^nment, made, done, or com- mitteil,or act.s omitted to l)e done," niider au- thority of such order. ThL'^ act was u])held, the coTirt saying: "That an act iiassed alter the event which in effect ratifies what has been done and declarers that no suit shall be sustained agiiinst the ]iarty actina: under color of authority is valid, so far as Congress could have conferred sxich authority before, admifcs of no reixsonable doubt. These are ordinary acta of indemnity passed by all govenmients when the occasion requires." (Mitchell v. Clark, 110 U. S., 633; see also O'Reilly De Camara v. Brooke, 142 Fed. Rep., 858; 209 U. S., 45. Referring to acta of March 3, 1863 (12 Stat., 756), and March 2, 1867 (14Stat.,432),itwasheld by theSuiireme ( 'ourt that " these statutes were enacted among other things to protect parties from liability to ])rosecution for acts done in the arrest and iiu])risomuent of jjersons during the existence of the rebellion, under orders or proclamations of the President or by his au- thority or a])proval, who were charged with partici]>ation in the rebellion, or as aiders or abettors, or as being guilty of (lisloyal ]iractices in aid thereof, or any A-iolation of the usages or the laws of war": that said statutes do not "cover all acts done by olTicers in the military service of the United States, simply because they are acting under the general authority of the President as commander in chief of the armies of the United States"; that, "assuming that they are not liable to any constitutional objection, they only cover acts done under orders or proclamations issued by the President or by his authority" ; that " they do not dispense with the exhibition of the order or authority upon which a party relies"; and, accordingly, that "where certain military ofTicers of the United States, being sued for the arrest and imprisonment of a person in Vermont, not con- nected with the military ser\T.ce of the United States, alleged in their pleas that the arrest and imprisonment were made under the authority and by the order of the President, whose orders as commander in chief of the armies of the United States by the rules and regulations of the Army they were bound to obey, without setting forth any order, general or special, of the President directing or appro\-ing of the acts in question, * * * the pleas were defective and insufTicient." (Bean v. Beckwith, 18 Wall., 510.) [In the case of In re Mur])hv, 17 Fey his authority and approval, was void ius ex post facto. In Griflm i;. Wilcox (21 Ind., 370) theactof March 3, 1863, was held to violate the fourth amendment.] "A\hen an officer of the United States is sued for the ])erformance of his duty, the Government is bound to ])rotect him by ])aying the costs of his defense. If he defends himself, and proves upon his trial that he was executing the law, or the orders of his siijierior, his expenses ought to be reimbursed to him." (9 Op. Atty. Gen., 51, case of Capt. Wilkes; compare 22 Comp. Dec, 264.) "This is required by the plain principles of justice as well as by sound jiolicy. No man of common prudence would enter the public service if he knew that the performance of his duty would render him liable to be plagued to death with lawsuits which he must carry on at his own expense. For this reason it has been the uniform practice of the Federal Govern- ment, ever since its foundation, to take upon itself the defense of its officers who are sued or prosecuted for executing its laws. The follow- ing are some of the cases in which this has been done: Mitchell v. Harmony, 13 How., 115; Elliott V. Swartwout, 10 Pet., 137; Tracy v. Swartwout, 10 Pet., 80; Lawrence v. Allen, 7 How., 785; Same v. Caswell, 13 Howard, 488; Greely v. Thompson, 10 How., 225; King v. Maxwell, 17 How., 147; The United States v. Guthi-ie, 17 How., 284; The United States v. Booth, 18 How., 476; Greely v.Burgess, 18 How., 413; Stairs v. Peaslee, 18 How., 521; Gelston v. Hoyt, 3 Wheat., 247; Fleming v. Page, 9 How., 603; Kendall v. The United States, 12 Pet., 51 [524]; Marbury v. Madison, 1 Cr., 137. In Little V. Barreme, 2 Cr., 170, the Government took no l^art in the defense, but it afterwards assumed the judgment and paid it with interest and all charges." (9 Op. Atty. Gen., 51; see also 12 Comp. Dec, 208, and 12 Comp. Dec, 191.) Civil responsibility for seizure of private property during war. — See note to Art. I, sec 8, cl. 11, " Jiirisdiction over persons in mihtary service during war." [Clause 14. Regulation of land and naval forces.] ^* To make Rules for the and naval Forces; sentinels; fleets, squadrons, separate vessels, boats, crews, are land and naval forces, inte- grally and independently, no less than when compounded in the general mass, and so is the individual soldier and seaman." (U. S. v. Mackenzie, 30 Fed. Cas. No. 18313.) Government and Regulation of the land I. General Powers of Congress and President. II. Power to Create Courts-Martial. III. Finality of Court-Martial Proceed- ings. IV. Jurisdiction of Courts-Martial. V. Jurisdiction of Civil Courts. VI. Application op Constitution to the Navy. I. General Powers of Congress and President. Land and naval forces. — "Armies, divi- eione, brigades, regiments, companies, guards, Powers of Congress and of the Presi- dent. — "The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordi- nate and auxiliary powers. Each includes all authority essential to its due exercise. But neither can the President in war more than in peace intrude upon the proper authority of Con- gress, nor Congress upon the proper authority of the President. Both are servants of the peo- 58 Land and Naval Forces. Pt. 1. THE CONSTITUTION. Art. I, Sec. 8. pie whose will is expressed in the fundamental law." (Ex parte Milligan, 4 Wall., 139.) "Congress may increase the Army or reduce the Army or abolish it altogether; but so long as we have a military force, Congress can not take away from the President the supreme com- mand. It is true that the Constitution has con- ferred upon Congress the exclusive power 'to make rules for the Government and regulation of the land and naval forces;' but the two powers are distinct; neither can trench upon the other; the President can not under the guise of military orders evade the legislative regulations by which he in common with the Army must be governed; and Congi'ess can not in the guise of 'rules for the government' of the Army impair the authority of the President as Commander in Chief." (Swaim v. U. S., 28 Ct. Cls., 173, 221; affirmed, 165 U. S., 553.) For other cases see note to Article II, section 2, clause 1; and see note to Article II section 2, clause 2, as to powers of Congress and of the President with reference to appointments and promotions in the Army and Navy. Delegation of power to make regula- tions. — Congress can only legislate in a general way, and large powers are necessarily intrusted to the different departments. They really ex- ercise in this way by delegation, and neces- sarily so, for the purpose of carrjdng on the vast affairs of the Governmentand itsdetails, author- ity which in a strict sense pertains to Congress. (21 Op. Atty. Gen., 438, 439.) While of course Congress can not constitu- tionally delegate to the President legislative powers, "it may, in conferring powers consti- tutionally exercisable by him, prescribe or omit prescribing, special rules of their admin- istration or may specially authorize him to make the rules, ^^llen Congress neither prescribes them nor expressly authorizes him to make them, he has the authority, inherent in the powers conferred, of making regulations neces- sarily incidental to their exercise." (McCall's Case,_15Fed. Cas., 1230.) It is well settled that executive regulations when directly approved by Congress have the absolute force of law equally with other legis- lative acts. Regulations not approved by Con- gress have the force of law only when founded on the President's constitutional powers as Commander in Chief of the Army and Navy or when consistent with and supplementary to the statutes which have been enacted by Congress. (In re Smith, 23 Ct. Cls., 452, 459.) Congress has approved regulations issued bv the Secretary of the Navy with the approval of the President and authorized him to make changes therein in the same manner. (Sec. 1547, R. S.) The Navy Regulations so issued by the Secretary of the Na\^ have the force and effect of positive law. (27 Op. Atty. Gen., 257; Ex parte Reed, 100 U. S., 13; Smith v. Whitney, 116 U. S., 180.) For citation of decisions on subject of ex- ecutive regulations, see note to sections 161 and 1547, Revised Statutes; see also Article II, section 2, clause 1. Power of President to change estab- lished customs. — A custom which "has come down to us from the British Navy and which has been expressed in regulations sanctioned by Congress, has thus become, in effect, a national policy; it is believed that a change therein would involve matters more properly a subject for the exercise of the constitutional powers vested in Congress ' to provide and maintain a Navy ' and ' to make rules for the government and regulation of the land and naval forces.' In other words, the regulation in this case did not prescribe the rule, but was merely declara- tory of the preexisting rule based on established custom . Under such circumstances an amend- ment of the regulation would involve something more than occurs in the ordinary case ; that is to say, it would involve not merely the change of a regulation but a radical change in pre\'iou3 custom which Congress has indicated should be continued. That the President's power to make such changes is not without limitation is supported by the Attorney General's opinion holding that the President was without author- ity to make radical changes in regulations pre- scribing in accordance with custom the duties to be performed by staff officers of the Marine Corps. (30 Op. Atty. Gen., 234.)" (File3973- 107, Feb. 16, 1915.) II. Power to Create Courts-Martial. Trials by jury not required in the Navy. — Among the powers conferred upon Congress by the eighth section of the first article of the Con- stitution are the following: "To provide and maintain a Navy; " "to make rules for the gov- ernment and regulation of the land and naval forces; " and the fifth amendment, which re- qmres a presentment of a grand jury in cases of capital or otherwise infamous crimes expressly excepts from its operation ' ' cases arising in the land or naval forces; " and by the second section of the second article of the Constitution it is declared that "the President shall be Com- mander in Chief of the Army and Navy of the United States and of the militia of the several States when called into the actual service of the United States." — "These provisions show that Congress has the power to provide for the trial and punishment of military and naval offenses in the manner then and now practiced by civil- ized nations and that the power to do so is given without any connection between it and the third article of the Constitution defining the j udicial power of the United States ; indeed that the two powers are entirely independent of each other." (Dynes v. Hoover, 20 How., 65; see also U. S. v. Mackenzie, 30 Fed. Cas. No. 18313; Ex parte Henderson, 11 Fed. Cas. No. 6349; Ex parte Dickey, 204 Fed. Rep., 322.) * ' Under these powers it has always been sup- posed that Congress may provide for the trial by court-martial of persons in the land or naval forces, or in the militia in ser\dce, for military offenses. This is the usual mode of trial for these offenses which had prevailed in England, the country from which we borrowed most of our laws, for more than a hundred years prior to the adoption of our Constitution, and, in fact, ever since England has had any standing i army at all It is also the mode which pre- 54641°— 22 5 59 Art. I, Sec. 8. PL 1. THE CONSTITUTION. Land and Naval Forces. vailed in the colonies at the time the Conven- tion sat, and it has been a part of onr code of laws relatino; to the governni(nit of the land and naval forces and of the militia in service ever since we luid a (.io\-crnment . Tliis mode of trial of military men for nulitar\- offenses has become too well fixed in onr system to now admit of question." (Expartellenderson, 11 Fed. Cas. No. 6349.) "The sixth amendment affirms that 'in all criminal prosecutions the acc-used shall enjoy the ritrht to a speedy and pu])lic trial by an impartial jury,' language broad enough to em- brace all persons and cases; but the fifth, recog- nizing the necessity of an indictment or pre- sentment before anyone can be held to answer for high crimes, excepts 'cases arising in the land or naval forces or in the militia when in actual service in time of war or pul)lic danger;' and the framers of the Constitution doubtless meant to limit the right of trial by jury in the sixth amendment to" those persons who were subject to indictment or presentment in the fifth . i'he discipline necessary to the efficiency of the Army and Navy required other and swifter modes of trial than are furnished by the com- mon-law courts; and in pursuance of the power conferred by the Constitution Congress has de- clared the kinds of trial and the manner in which they shall be conducted for offenses com- mitted while the party is in the military or naval service. Every one connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and while thus serving sur- renders his right to be tried by the civil courts." (Ex parte Milligan, 4 Wall., 3, 123.) "It is not denied that the power to make rules for the government of the Army arid Navy- is a power to provide for trial and punishment by military courts without a jury. It has been so imderstood and exercised from the adoption of the Constitution to the present time. " (Ex parte ]\Iilligan,4 Wall., 137, concurring opinion of four justices.) In the exercise of this power Congress has enacted rules for the regulation of the Army, known as the Articles of War (sec. 1342, R. S.), and for the Navy, known as the Articles for the Government of the Na\'y (sec. 1624, R. S.). Every officer before he enters on the duties of his office subscribes to these articles and places himself within the power of courts-martial to pass on any offense which he may have com- mitted in contravention of them. (Carters. McClaughry, 183 U. S., 365.) "The notion suggested by Sir Matthew Hale and repeated by Sir William Blackstone(Com., vol. 1, p. 213) that 'martial [military] law is built on no settled principles but is entirely arbitrary in its decisions and is in truth not law but something indulged rather than allowed by law ' is an exploded absurdity. A court-martial is a lawful tribunal, existing iDy the same author- ity that any other court exists by, and the law military a branch of the law as valid as any other^ and it differs from the general law of the land m authority only in this that it applies to officers and soldiers of the Army, but not to other members of the body politic, and that it islimited to breaches of military duty. * * * There is the less room for the sujx'rficial remark of Sir Matthew Hale to be applied in tlie United States, inasmuch as the Constitution expressly empowers Congress 'to make (special) rules for the government of the land and naval forces' and expressly excepts the trial of cases arising in the land or naval service from the ordinary provisions of law. " (6 Op. Atty. Gen., 413.) III. Finality of Court-Martial Proceed- ings. Judgments of courts-martial acting witliin their jurisdiction not open to re- view by civil courts.— Courts-martial are law- ful tribunals with autJiority to finally deter- mine any case over which they have jurisdic- tion, and their proceedings when confirmed as provided are not open to review by the civil tribunals except for the purpose of ascertaining whether the military or naval court had juris- diction of the person and subject matter and whether, though having such jurisdiction, it had exceeded its powers in the sentence pro- nounced. (Carter v. McClaughry, 183 U. S., 365;seealsoGrafton^.U.S.,206U.S.,,333,348.) ' ' With the sentences of courts-martial wliicli have been convened regularly and have pro- ceeded legally and by which punishments are directed not forbidden by law or which are according to the laws and customs of the eea, civil courts have nothing to do nor are they in any way alterable by them." (Dynes v. Hoover, 20 How., 65.) "Within the sphere of their jurisdiction the judgments and sentences of courts-martial are as final and conclusive as those of civil tribunals of last resort, and the only authority of civil courts is to inquire whether the military au- thorities are proceeding regularly within their jurisdiction. If they are, they can not be inter- fered with no matter what errors may be com- mitted in the exercise of their lawful jurisdic- tion. " (In re McVey, 23 Fed. Rep., 878.) "Undoubtedly errors are committed by courts-martial which a civil tribunal would regard as sufficient ground for a reversal of their judgments if it were sitting as an appellate court. But there is always this radical differ- ence between an appellate court sitting for the correction of errors and a civil court into which the record of a court-martial is collateral — in the former there is not a failure of justice; the ap- pellate court may reverse a judgment or pre- scribe another or award a new trial ; in the latter the court must either give full effect to the sen- tence or pronounce it wholly void. " (Swaim V. U. S., 28 Ct. Cls., 217; affiimed, 165 U. S., 553.) An officer of the Army attacked the sentence of a court-martial on the ground, among other things, that it was void because in violation of the fifth amendment, declaring that no person shall be subject for the same offense to be twice put in j eopardy of life or limb . On behalf of the Government it was argued that the question was one within the power of the court-martial to decide, and must be held to have been waived or be assumed to have been ruled 60 Land and Naval Forces. Pt. 1. THE CONSTITUTION. Art. I, Sec. 8. against the accused, in which case the decision would be conclusive on habeas corpus, since if incorrect it would be merely error and would not go to the jurisdiction. It had been held by the Supreme Court that the courts of the Dis- trict of Columbia had jiirisdiction to decide a similar question in cases tried by them, and that their decision would not be reviewed in that particular on habeas corpus. "It is difficult to see why the sentences of courts-martial, courts authorized by law in the enforcement of a sys- tem of government for a separate community recognized by the Constitution, are not witlrin this rule. Its applicability would seem to be essential to the maintenance of that discipline which renders the Army efficient in war and morally progressive in peace and which is secured by the military code and the decisions of the military courts. ' ' (Carter v. McClaughry, 183 U. S., 365.) Although error was committed by a naval court-martial in permitting the judge advocate to be present for a short time during a closed ses- sion of the court, this was an error of procedure only, and could not be corrected by a civil court in habeas coi-pus proceedings. "It is clear that the civil courts are in no sense appel- late tribimals for the revision of proceedings in courts-martial. It has been decided that in such cases the civil courts should not interfere if it appears that the court-martial had jurisdic- tion of the person and of the subject matter which was tried before it and that errors in pro- cedure in military courts can be corrected only by the proper mi litary authorities. " (Ex parte Tucker, 212 Fed. Rep., 569.) "We must not be understood by anything we have said as intending in the slightest degree to impair the salutaiy rule that the sentences of courts-martial when affirmed by the military tribunal of last resort can not be revised by the civil courts save only when void because of an absolute want of power and not merely voidable because of defective exercise of power pos- sessed." (Carter v. McClaughry, 183 U. S., 365; see also Dynes v. Hoover, 20 How., 65, 82; Keyes v. U. S., 109 U. S., 336; Swaim v. U. S., 165 U. S., 553; Smith v. Whitney, 116 U. S., 167.) _ "The court-martial for the trial of Capt. Ober- lin M. Carter was convened by orders issued by the President; and he was therefore the review- ing authority and the court of last resort." (Carters. McClaughry, 183 U. S., 365, 385.) "WTiere a court-martial had jurisdiction to try i)etitioner for an offense against the naval regulations and to impose sentence authorized thereby, a civil court in habeas corpus proceed- ing could only review the question of jurisdic- tion and could not pass on alleged errors of law committed by the court-martial or on the severity of the sentence imposed. " (Ex parte Dickey, 204 Fed. Rep., 322.) "The case before me shows that the court- martial under which the petitioner was tried was properly constituted; that the charge and specification were in due form and authorized under the regulations for the government of the Navy; that the trial court had jurisdiction of the case and of the subject matter of the charge and acted within the scope of its lawful author- ity; that it also acted within its authority in imposing sentence ; that such sentence was duly approved by the commander in chief of the Atlantic Fleet, by whom the court was con- vened; that it was also approved by the Secre- tary of the Navy, the final reviewing authority provided by law to act upon records of courts- martial in cases which do not extend to the loss of life or to the dismissal of a commissioned or warrant officer; that the sentence, therefore, can not be revised by the civil courts. * * * If the petitioner was harshly dealt with and a sentence of undue severity was imposed, such sentence seems to have been within the powers of the court-martial, and it is held by the Supreme Court of the United States that the remedy must be found elsewhere than in courts of law.'" (Ex parte Dickey, 204 Fed. Rep. , 322.) WTiat is conduct unbecoming an officer and a gentleman, or conduct to the prejudice of good order and discipline, is a question exclusively within the jurisdiction of a court-martial to determine, and its decision is not subject to review by a civil court. (Carter v. McClaughry, 183 U. S., 400; Swaim v. U. S., 165 U. S., 553; Smith V. WTiitney, 116 U. S., 178; Fletcher v. U. S., 26 Ct. Cls., 562. 563, reversed, on other grounds, 148 U. S., 84.) Neither the Supreme Court of the District of Columbia nor the Supreme Court of the United States has any appellate jurisdiction over a naval court-martial nor over offenses which such a court has power to try. Neither of these courts is authorized to intertere with the court- martial in the pert'ormance of its duty, by way of writ of prohibition or any order of that nature. (Wales V. Whitney, 114 tl. S., 564, 570; com- pare State V. Peake, 40 L. R. A. (N. S.), 354.) Whether the Supreme Court of the District of Columbia has power to issue a writ of prohibi- tion to a court-martial — quaere. (Smith v. Whitney, 116 U. S., 168.) "Where an officer of the Army during the War with Spain, after ha\dng been acquitted by a court-martial of charges preferred against him, was, by direction of the commanding generals retried by the court-martial on the same charge, and was convicted and dismissed from the serv- ice, and thereafter peace having been declared, and its term of enlistment ha^•ing expired, his regiment was mustered out and discharged, it was held that mandamus would not He on his re- lation against the Secretary of War to compel the respondent to cause the relator to be mustered out and discharged. " (Brown t'. Root,18 App. D.C., 239.) [In this case there was not a second trial, but a re\ision by the court of its finding, by order of the convening authority.] "The United States Court of Claims would probably have juris- diction of an action by the relator to establish the validity of liis claim to salary accruing after the date of his dismissal. " (Same case.) "When the offense charged is trivial and the punishment is likewise trivial, a civil court should not be called upon to examine the legal- ity of the sentence of a court-martial; and when called upon is not required by substantial jus- tice to apply a stricter rule than that which I^revails in ordinary criminal cases. " (Weir- man V. U. S., 36 Ct. Cls., 236, 239.) 61 Art. I, Sec. 8. Pt. 1. THE CONSTITUTION. Land and Naval Forces. IV. Jurisdiction ok Couhts-Maktial. Persons subject to jurisdiction of Federal courts-martial. — Everyone connected with the military and naval service is amenable to the jurisdiction which Congi-ess has created for their government, and while thus serving surrenders his right to be tried by the civil courts. (Ex parte Milliffiin, 4 Wall., 3, 123. See notes to sec. 1G24, K. S.) The jurisdic- tion of courts-martial includes: Retired oncers.— (Runkle v. U. S., 19 Ct. Cls., 396; 122 U. S., 543; Closson v. U. S., 7 App. (D C). 460; sees. 1256 and 1457, R. S.; Naval Dig., 1916, 539.) Chiefs of bureaus in the Navy Department. — (18 Op Attv. Gen., 176; see also Smith v. U. S., 26 Ct. Cls.," 143; Smith r. Whitney, 1J6 U. S., 181; Wales v. Whitney, 114 U. S., 564.) Judge Advocate General of the Army .—{SwAim V. U. S., 28 Ct. Cls., 173; 165 U. S., 553.) Clerks to paymasters in the Navy, although neither oflicers (in a constitutional sense) nor enlisted men. (Ex parte Reed, 100 U. S., 13; Johnson v. Savre, 158 U. S., 109; U. S., v. Bogart, 24 Fed. Cas. No. 14616; In re Reed, 20 Fed. Cas. No. 11636; In re Bogart, 3 Fed. Cas. No. 1596. But see Ex parte Van Vranken, 47 Fed. Rep., 888, reversed, 163 U. S., 694.) [Paymasters' clerks were not strictly officers of the Na\y at the time these decisions were rendered (U. S. v. Mouat, 124 U. S., 303). Their status has since been changed and they are now officers of the Navy. (Naval appro- priation act Mar. 3, 1915, 38 Stat., 942; 27 Op Atty. Gen., 157; see also U. S. v. Hendee, 124 U. S., 309.)] Army contractors, under a specific statutory pro\'ision subjecting them to jiu-isdiction of courts-martial (Holmes v. Sheridan, 12 Fed. Cas. No. 6644); but only for fraud or willful neglect of duty in connection with their con- tracts (Ex parte Henderson, 11 Fed. Cas. No. 6349). Naval Militiamen, when employed in the service of the United States in time of war or public danger (File 3973-107, Feb. 16, 1915; Johnson v. Sayre, 158 U. S., 109, 114); or for refusing to obey the order of the President calling them forth into the ser\dce of the United States (Martini). Mott, 12 Wheat., 19; Houston V. Moore, 5 Wheat., 1; naval militia act, Feb. 16, 1914, sec. 5, 38 Stat., 285). Civilians. — As to trials of civilians by mili- tary courts in time of war, see note to Art. I, sec. 8, clause 11, "Military jurisdiction over civilians in time of war." Persons lawfully called, drafted or ordered into, or to duty or for training in, the military service are subject to jurisdiction of Army courts-martial from the dates they are required by the terms of the call, draft, or order to obey same; all retainers to the camp and all per- sons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accom- panying or serving with the armies of the United States in the field both within and without the territorial jurisdiction of the United States; all persons admitted into the Regular Army Soldiers' Home at Washington, D. C; all persons under sentence adjudged by courts-martial. (Act Aug. 29, 1916, sec. 3, 39 Stat., 650, amending sec. 1342, R. S., art. 2; see Ex parte (ierlach, 247 Fed. Rep., 616.) All person.s who in lime of war, or of rebel- lion against the United States, are found in the capacity of spies, etc. (Sec. 1624, R .S., art. 5.) l)e facto emisted man. —'Where a man without enlisting in the Navy served the full term of enlistment, he is entitled to an honorable dis- charge and on reenlistment to the benefits of his de facto enlistment. (File 5839, July 5, 1904; see also 26 Op. Atty. Gen., 319; Circular War Department, Mar. 18, 1901.) A fraudulent enlistment is still an enlistment, and a man so enlisting is de facto in the service and subject to the jurisdiction of a naval court- martial. (File 5624, Feb. 17, 1896; U. S. v. Reaves, 126 Fed. Rep., 127, file 152-04; Ex parte Rock, 171 Fed. Rep., 240; Dillingham v. Booker, 163 Fed. Rep., 696, file 5956-6; In re Scott 144 Fed. Rep., 79, file 2757-4; In re Les- sard, 134 Fed. Rep. , 305; Solomon v. Davenport, 87 Fed. Rep., 318; In re Morrissey, 137 U. S., 157; compare Ex parte Bakley, 148 Fed. Rep., 56, affirmed, Dillingham v. Bakley, 152 Fed. Rep., 1022, file 5506-5, and Ex parte Lisk, 145 Fed. Rep., 860, file 2757-8.)] "It seems to me illogical to say that a man can commit a crime and when arrested obtain a discharge on the ground that the original en- listment was not regular or proper." (In re Hamilton and Carroll, Superior Court, Fulton Co. (Ga.) Atlanta Circuit, file 7969and 7988-04; see also. In re McVey, 23 Fed. Rep., 878.) Soldier ivhose enlistment has expired. — "The proceedings against the prisoner having been instituted while he was clearly within the jurisdiction of the military authorities, by the preferring of charges and by his arrest as well as by the forwarding of the charges to head- quarters with an application for the appoint- ment of a coiurt-martial for his trial, the question for determination is, Did that jurisdiction cease and expire at the end of the prisoner's term of enlistment so that all proceedings after that date were void? The general rule is that when the jurisdiction of a com-t attaches in a par- ticular case by the commencement of pro- ceedings and the arrest of the accused, it will continue for all the purposes of trial, judgment, and execution. * * * The general rule is grounded in sound reason. Many of the greatest military offenses are not cognizable by the courts of common law. A soldier might be guilty on the eve of the expiration of his term of enlistment of the grossest insults to his officers or of disobedience of orders or of deser- tion in the face of an enemy; and if he could not be held for trial after the end of his term he would escape punishment altogether. To hold that in every such case the jinisdiction of a court-martial would cease with the expira- tion of the term of enlistment would be to shield the guilty from punishment, to encourage crime, and to greatly demoralize the military service. The jinisdiction, therefore, in such cases is to be maintained upon the highest considerations of public policy. But such considerations are not alone sufficient to support the jmisdiction of a court which has power to deal with Ufe, liberty, and property. The jurisdiction of a 62 Land and Naval Forces. Pt. 1. THE CONSTITUTION. Art. I, Sec. 8. criminal court must rest upon sound principles of law and not merely upon considerations of public interest and convenience. It fre- quently happens that the guilty go acquit because there is no lawful mode of trial and punishment provided. The jurisdiction in the cases named and in many others of like character must therefore be upheld upon the ground first mentioned, to- wit, that the covut- martial acquired it by the proper commence- ment of proceedings and could not be divested of it by any subsequent change in the status of the accused; and this reason applies as well to a case where the crime is one known to the common or statute law, as to one in which the offense is pm^ely military." (Barrett v. Hop- kins, 7 Fed. Rep., 312; see also, In re Bogart, 3 Fed. Gas. No. 1596; In re Bii'd, 3 Fed. Cas. No. 1428; file 26251-5447, Dec. 8, 1911; 9 comp. Dec, 229.) If before the expiration of his term of service an enlisted man commits a military crime, for the purpose of trying such offense an arrest or restraint would be justifiable. (U. S. v. Tra- vers, 28 Fed. Cas. No. 16537, Mr. Justice Story.) The statute of limitations applicable to trials by court-martial for desertion from the Navy provides, ' ' That said limitation shall not begin until the end of the term for which said person wasenHstedin theservice." (Art. 62, A. Q. N., sec. 1624, R. S., as amended by act Feb. 25, 1895, 28 Stat., 680.) The statute authorizing detention of en- listed men in the Navy under certain circum- stances beyond the expiration of the term for wliich they were enlisted provides "that all persons sent home or detained by a command- ing officer, according to the provisions of this act, shall he subject in all respects to the laws and regulations for the government of the Navy until their return to an Atlantic or Pacific port and then- regular discharge." Sec. 1422, R. S., as amended by act Mar. 3, 1875, 18 Stat., 484.) Officer dismissed from Army. — Where an ac- cused is proceeded against as an officer of the Army or Navy and jurisdiction attaches in respect of him as such, this includes not only the power to hear and determine the case, but the power to execute and enforce the sentence of the law. Having been sentenced, his status was that of a person held by authority of the United States as an offender against its laws, although pursuant to the sentence he had oeen dismissed before entering upon the period of imprisonment adjudged. The principle that where jurisdiction has attached, it can not be divested by mere subsequent change of status has been applied as justifying the trial and sentence of an enlisted man after expiration of the term of enlistment and the execution of sentence after many years and the severance of all connsction with the Army. (Carter v. McClaughry, 183 U. S., 365, citing Barrett v. Hopjiins, 7 Fed. Rep., 312, Coleman v. Ten- nessee, 97 U. S., 509; 16 Op. Atty. Gen., 349; and Ex parte Mason, 105 U. S., 696; see also Rose V. Roberts, 99 Fed. Rep., 948.) Soldier discharged from the Army.- — "Soldiers sentenced by court-martial to dishonorable discharge and confinement shall, until dis- charged from such confinement, remain sub- ject to the Articles of War and other laws re- lating to the administration of military justice. " (Act June 18, 1898, sec. 5, 30 Stat., 484; In re Bird, 3 Fed. Cas. No. 1428; In re Craig, 70 Fed. Rep., 969; Ex parte Wildman, 29 P^ed. Cas. No. 17653a; Carter v. McClaughry, 183 U. S., 365; see also act Aug. 29, 1916, noted above, under "Civilians.") Persons discharged from the Navy. — "And if any person, being guilty of any of the offenses described in this article while in the naval service, receives his discharge, or is dismissed from the service, he shall contini.e to be liable to be arrested and held for trial and sentence by a court-martial in the same manner and to the same extent as if he had not received such discharge nor been dismissed." (Art. 14, Articles for the Government of the Navy, sec. 1624, R. S.; In re Bogart, 3 Fed. Cas. No. 1596; see also In re Bird, 3 Fed. Cas. No. 1428, noted under sec. 1426, R. S., "Effect of discharge," and see file 28550-951:3, May 13, 1919; U. S. ex rel. Viscardi v. MacDonald, 265 Fed. Rep., 695; U. S. ex rel. Sartartonio v. Warden of Naval Piison, 265 Fed. Rep., 787; 31 Op. Attv. Gen., 521.) Persons in constructive custody of civil courts.— Where an officer of the Army is arrested by the civil authorities on the charge of felony and re- leased on bail, he is amenable to the military au- thorities and may be tried by them for the mili- tary offense involved. However, "Although not necessary in the actual case, yet in deference to the spirit of our institutions and to the civil authorities, it may be expedient for the mili- tary authorities to suspend the trial of the military relations of the act of killing * * * until the civil relations of that act shall have been tried by the civil magistrate." (6 Op. Atty. Gen., 413; see also 21 Op. Atty. Gen. 504.) The fact that an enlisted man convicted by a civil court was turned over to naval jurisdic- tion, sentence being suspended, is deemed sufficient authority to proceed with his trial by general court-martial for unauthorized absence. (File 26524-36, Jan. 15, 1912.) The naval authorities have jurisdiction to try by court-martial and confine an enlisted man paroled by the civil authorities where the governor of the State consents to such man's delivery to the Navy for disciplinary action. (File 26524-44.) An enlisted man tried by court-martial while on parole by civil authorities can not obtain his release from Army jurisdiction by habeas corpus proceedings. The court officials in whose custody he belonged while on parole are the only ones who could raise the question. (Case of John W. Pieper, Supreme Court, Dis- trict of Columbia, 1912; see also In re Fox, 51 Fed. Rep., 427.) See cases noted below under "Persons not subject to jurisdiction of Federal courts- martial . ' ' Persons not subject to jurisdiction of Federal courts-martial. — Civilians — Congress have no power, and never had, to subject a per- son not in the military or naval service of the United States to a trial by a court-martial for any crime, especially one that is capital and in- famous. This is plain enough upon the face of 63 Art I, Sec. 8. Pt. 1. THE CONSTITUTION. Land and Naval Forces. tlie Constitution. (Ex parte Hendereon, 11 Fed. Oils. No. 6349. As to trial of civilians by niilitary courts in time of war, see note to Art. I. sec. 8, clause 11, ".Military juri.sdiction over civilians in time of war, "' and see above, under "Persons subject to jurisdiction of Federal courts- martial;" see also Holmes v. Sheridan, 12 Fed. Oils. No. 6644, aa to trials of Army contractors; Martin v. Mott, 12 Wlieat., 19, as to trials of militiixmen prior to entering service of United States; and U. S. v. Tra\'ers, 28 Fed. Oas. No. 16.537, as to status of civilians visiting military posts.) Officers discharr/ed from Army. — A court- martial has no jurisdiction over an officer of the Army after he has left the service. (24 Op. Atty. Gen., 570; 5 Op. Atty. Gen., 55; compare, cases noted above, "Persons subject to juris- diction of Federal courts-martial. ) Officers resigned from tlie Navy. — Unless there be some act of Oongress which prolonged his liability to military courts and military offenses after he had been allowed to leave the ser\dce, an officer is not subject to trial by naval court- martial on charges preferred after that date. (G. O. No. 143, Na\'y Department, Oct. 28, 1869; see In re Bogart, 3 Fed. Gas. No. 1596.) Marine whose enlistment has expired. — ^WTiere the enlistment of a marine has expired, and there is no legal authority for retaining him in the ser\-ice, in point of law he is entirely dis- charged from the Marine Ooqis. "If, therefore, he had been restrained of his liberty, or pre- vented from leaving the navy yard, the deten- tion would have been illegal. He might, by a habeas corpus to this court, have been liber- ated, and might well have sustained an action for damages. If under such circumstances he had attempted to depart from the navy yard and had been forcibly prevented, he would have had a right to repel force by force, and if necessary to have taken the life of his opponent. And if he had been killed in this attempt to recover his liberty it might under such circumstances have been murder in the perpetrator. But although the prisoner was thus in contemplation of law discharged, yet he might remain if he and the officers of the garrison pleased. He might re- main in expectation of his pay or of a pension or of a certificate of discharge, which should be a voucher for his good behavior and of his hav- ing left the garrison without desertion. And if he chose to remain (however reluctantly), and to perform military 8er\'ice partially until he could obtain a regular discharge or receive his pay, although not a soldier, he was undoubtedly liable in a limited degree to the regulations necessary to the peace and subordination of a military garrison. And even if he was unlaw- fully detained or remained under an erroneous impression that he was bound so to do, this would not authorize him, in collateral things, to violate the laws. For even an imlawful de- tention will not authorize a man to perpetrate crimes against innocent persons, or on other occasions disconnected with his attempts to re- cover his liberty. * * * But suppose him to be in the most favored condition and entitled to all the rights of a stranger, still in a military post or garrison every person who is voluntarily there, either as a visitor or guest, is bound to observe peace and order and to conduct himself inoffensively. If he excite a riot, if he attempt to stal) or wound or kill anyone within the lines, he is liable to be arrested and detained until he can be j)laced in the hands of the proper tri- bimals having jurisdiction to punish him. It is not competent for mere military officers in such cases to apply imprisonment by way of punishment, but it is their duty to apply it if necessary to prevent bloodshed and to restore peace and to keep the offender to answer over to a competent tribunal." (U. S. v. Travers, 28 Fed. Oas. No. 16537, Mr. Justice Story.) Naval Militia men participating in cruises roith Regular Navy. — "Until they are called into the service of the United States, Naval Militia men are, and remain, civilians, and consequently are not subject to punishment aa such. The captain is charged with the safety, discipline, and well-being of liis ship. He is not charged by law with the discipUne of the passengers, except in so far as it affects the safety or dis- cipline of his ship, and he is not authorized to administer any punishments on them. He is clothed with full authority in virtue of his po- sition to use necessary force toward Naval Mili- tia men who jeopardize the safety or discipline of the ship or refuse conipUance with general or special orders. In effecting this he is author- ized to use such ordinary methods as may be necessary. He would be justified in limiting offenders to certain parts of the ship or exercis- ing other forms of restraint, or even, if circum- stances demanded, confining the offender to a room, but always with the object of preserving the safety and discipline of the ship and not at all in the sense of inflicting a punishment, as such. * * * The naval commanding officer has supreme authority over all persons on board his ship, including members of militia organiza- tions; and * * * while he can not try the latter by court-martial or impose pimishments upon them imder article 24 of the Articles for the Government of the Navy [section 1624, Re\ised Statutes], nevertheless he may, if necessary, place them in confinement or remove them from the vessel when circTimstances demand, under lawful regulations to be adopted by the De- partment. It should, however, be distinctly understood that such action is not authorized as punishment, but only in so far as is necessary to maintain the discipline of the ship and the supreme authority of the commanding officer." (File 3973-107, Feb. 16. 1915.) Persons in constructive custody of civil courts. — An enlisted man arrested as a deserter wliile on parole for a civil offense will not be tried by court-martial, because constructively in the custody of the civil authorities, but should be dis- charged from the Navy as undesirable as of the date of his conviction in the civil courts. (File 4495-02, May 27, 1902; see also File 26283-281; In re Wall, 8 Fed. Rep., 85.) An enlisted man released by Federal civil authorities on bail should not be placed under restraint upon his return to the Na^^', unless it should develop that he is not to be tried in the civil court, in view of the fact that the civil court has adequate power to cause his appear- ance when required. (File 26283-281, June 27, 1911; see also 21 Op. Atty. Gen., 504.) 64 Land and Naval Forces. Pt. 1. THE CONSTITUTION Art. I, Sec. 8. See cases noted above under "Persons sub- ject to jurisdiction of Federal courts- martial." Offenses triable by court martial. — It is not possible for an officer to do any act punish- able by the known laws of the land, however foreign that act may be to his duties or imme- diate relation as a soldier, which shall not be cognizable by court-martial. To commit a crime of any sort is, to say the least of it, in gen- eral unofficerlike and ungentlemanly conduct. Undoubtedly cases may and do occur of assault or even homicide by an officer of the Army which constitute a technical crime at law, the facts of wliich when they come to be scrutinized by the eye of a court-martial would be held the reverse of crinTinal and highly honorable to the party accused. These are exceptional cases. The general proposition remains true, that it is the part of an officer and a gentleman to observe the laws of his country, and for not doing it he would in most cases be censurable and in all his conduct would be lawfully subject to mili- tary inquiry. His con\dction or acquittal by the State court of the offense against the general law does not discharge him from responsibility for the military offense invoh^ed in the same facts. (6 Op. Attv. Gen., 413, cited with ap- proval in U. S.V.Clark, 31 Fed. Rep., 710, 712; see also In re Bird, 3 Fed. Cas. No. 1428. As to dou- ble jeopardy, see note to Amendments, Art. V. ) "^Yherever our Army or Navy may go be- yond our territorial limits, neither can go be- yond the authority of the President or the jurisdiction of Congress." (Ex parte Milligan, 4 Wall., 141.) "When the act charged as 'conduct to the prejudice of good order and military discipline' la actually a crime against society which is punishable by imprisonment in the peniten- tiary, it seems to us clear a court-martial is authorized to inflict that kind of punishment. The act done is a civil crime, and the trial is for that act. The proceedings are had in a court-martial because the offender is personally answerable to that jurisdiction." (Ex parte Mason, 105 U. S., 696.) " Under every system of military law, for the government of either land or naval forces, the jurisdiction of courts-martial extends to the trial and punishment of acts of military or naval officers which tend to biing disgrace and re- proach upon the service of wluch they are members, whether those acts are done in the performance of military duties, or in a civil position, or in a social relation, or in private business." (Smith v. Whitney, 116 U. S., 168, 183.) Offense committed by de facto civilian; see note to section 1426, Revised Statutes, "Revo- cation of discharge issued under illegal sentence of court-martial . ' ' Court-martial can not convene in foreign jurisdiction. — No naval court or assembly of a judicial character shall be ordered or per- mitted to asssemble or conduct any part of its proceedings in any place subject to foreign jurisdiction. When, however. United States forces have landed in foreign territory for mili- tary purposes, that part of the foreign territory actually occupied by such forces is not subject to foreign jurisdiction -s^-ithin the meaning of this section. (Naval Courts and Boards, 1917, sec. 215, citing C. M. O. No. 42, 1915, p. 10, superseding Art. R-703, Navy Regs., 1913.) Where naval court-martial was held in place subject to foreign jurisdiction, the proceedings were disapproved. (Ilarwood, p. 57). Com- pare file 26504-254, Oct. 26, 1915, C. M. O. No. 42,1915, p. 10.) See note to Article I, section 8, clause 11, under "IV. Discipline of Army." Courts-martial other than naval can not convene on vessel of regular Navy. — Naval Militia officers can not convene State courts- martial on board a vessel of the regular Navy in the service of the United States; as the es- tablished policy of this Government, expressed in Navy Regulations which have been approved by Congress and are still in effect, does not permit any other than a naval court-martial to be held on board a naval vessel. (Citing Art. R-3845, Navy Regs., 1913; Art. 987, Navy Regs.,_ 1870; sec. 1547, R. S.) This poUcy has its origin in the customs and regulations of the British Navy (citing McArthur on Courts- Martial, 1813, vol. 1, p. 205). (File 3973-107, Feb. 16, 1915.) By act of August 29, 1916 (39 Stat., 598), naval militia courts-martial were authorized to convene on board naval vessels; this act was repealed by naval appropriation act of July 1, 1918 (40 Stat., 708), repealing all laws "relating to the Naval Militia and the National Naval Volunteers. " ) "In the interest of the speedy administration of justice, the prompt disposal of public busi- ness, and the general efficiency of the armed forces," it was recommended by the Judge Advocate General of the Navy that article R-384o, Navy Regulations, 1913, be rescinded, in order that Army courts-martial might be permitted to convene on naval vessels. (File 26504-339, Sept. 7, 1918.) V. Jurisdiction of Civil Courts. Jurisdiction of civil authorities over persons in military and naval service. — Commanding officers of the Army, in time of peace, are required under certain conditions to deliver to the civil authorities for trial per- sons subject to military law for whom applica- tion has been duly made by such civil authori- ties. (Act Aug. 29, 1916, 39 Stat., 662, amend- ing sec. 1342, R. S., art, 59.) [No similar statute relating to the Navy; as to naval orders and practice, see note to Article IV, section 2 clause 2.] There can be no doubt of the power of Con- gress to govern the Army and Navy by bringing offenses committed in either under the cogni- zance of the courts of law. This power is fully executed in respect to the Army in the Rules and Articles of War [cited above]. But no such expression of intention is introduced in the naval code. Whether, then, the courts of law are to take cognizance of offenses committed in the naval forces depends entirely upon the true intent of Congress in that behalf, as expressed in the Crimes acts and in the naval code. (U. S. V. Mackenzie, 30 Fed. Cas. No. 18313.) There is no act of Congress authorizing a call by the governor of a State for the surrender of an officer of the Navy charged with having broken the peace of such State, nor any law 65 Art. I, Sec. 8. Pt. 1. THE CONSTITUTION. Land and Naval Forces. authorizing an arrest by tho executive with a view to tho forcible surrender by him for the purposes of trial. However, advised that the accustnl be ordcTtnl by the Navy Department to surrender hiuiself. (1 Op. Atty. (jien., 244; Bee also note to Art. I, see. 8, clause 13, and Art. IV, sec. 2, clause 2. And see note to sec. 355, R. S.} "Offenclers in the land forces in certain casee were to be delivered over to the courts of law for trial and punishment. A similar j^rovision is contained m the EnglLsh mutiny act (2 Mc- Arthur, 229), without which it would seem to be thought that, under the general authority to try all cases not capital, courts-martial would have exclusive cognizance of that class of offenses when committed in the army * * *. But no such direction or authority is incor- porated in the naval code, and the design of Congress, therefore, to give the entire jurisdic- tion over the offenses enumerated to the naval courts-martial would seem indubitable * * *. If Congress means its penal law shall apply to ships of war, those vessels will be specifically named." (U. S. v. Mackenzie, 30 Fed. Cas. No. 18313.) [The Federal criminal code, ap- proved Mar. 4, 1909, in terms extends to crimes committed upon the high seas or any other waters within the admiralty and man- time jurisdiction of the United States and out of the jurisdiction of any particular State, on board any vessel "belonging in whole or in part to the United States." 35 Stat., 1142, 1148, sees. 272, 310.] In the case of Commander Mackenzie "the act of killing an inferior by a superior, which came under inquiry charged as iinlawful homi- cide, occurred on board a ship of war at sea; and the questions pertinent to the present sub- ject were whether the act was cognizable ex- clusively by a naval coiu-t-martial or by that concmrently with the competent ordinary courts of the United States. The fact of the act having occurred on board a ship of war and at sea influenced materially the arguments on the question of jurisdiction. For this reason Ex-Chancellor Kent and Mr. Justice Betts of the Southern District of New York both in- clined, the former positively, the latter less so, to the opinion that the jm-isdiction of the naval authorities was exclusive, more especially as the act of Congress for the government of the Na\^ does not contain the same recognition of the civil authorities as that for the government of the Army * * *. At the same time each of those eminent jurisconsults maintained con- fidently the competency and legality of a naval court-martial, at least as having concurrent jurisdiction with the civil courts." (6 Op. Atty. Gen., 413.) "Undoubtedly the general rule is that the jurisdiction of civil courts is concurrent as to offenses triable before courts-martial." (Franklin v. U. S., 216 U. S., 559, 568, citing 6 Op. Atty. Gen., 413, 419, U. S. v. Clark, 31 Fed. Rep., 710.) " That a Government which possesses the broad power of war, which 'may provide and maintain a navy,' which 'may make rules for the government and regulation of the land and naval forces,' has power to punish an offense committed by a marine on board a ship of war. wherever that ship may lie, is a proj)Osition never to be questioned in this court." The intpiiry respects not the extent of the power of Congress, but the extent to which that power has been exercised. (U. S. v. Bevans, 3 Wheat., 33G.) A Federal statute providing for the punish- ment of miu-der committed on the high seas or on any river, haven, basin, or bay out of the jurisdiction of any particular State, does not apply to murder committed on board a warship while in waters within the jurisdiction of the State of Massachusetts. (U. S. v. Bevans, 3 Wheat., 33G.) A Federal statute providing "that if any per- son or persons shall, within any fort, arsenal, dockyard, magazine, or in any other place or district of country under the sole and exclusive jurisdiction of the United States, commit the crime of willful murder, such person or persons, on being thereof convicted, shall suffer death," did not include murder committed on a United States warship, as the word "place," the same as the words with which it was associated, was intended to apply to objects which are "in their nature fixed and territorial." (U. S. v. Bevans, 3 'Wheat., 336.) "This construction [that the word "place" does not include a warship] is strengthened by the fact that at the time of passing this law the United States did not possess a single ship of war. It may, therefore, be reasonably sup- posed that a provision for the punishment of crimes in the Navy might be postponed until some provision for a navy should be made. While taking this view of the subject, it is not entirely unworthy of remark that afterwards, when a navy was created and Congress did proceed to make rules for its regulation and gov- ernment, no jurisdiction is given to the courts of the United States of any crime committed in a ship of war, wherever it may be stationed." (U. S. V. Bevans, 3 WTieat., 336.) The word "place" within the Revised Stat- utes punishing homicide embraces a United States battleship moored at Cob Dock, in the waters of Wallabout Bay, in the East River, these waters being included in the cession of jurisdiction by the State of New York to the Federal Government. "In the Bevans case the defendant was indicted and convicted for murder on board the UnitedStates ship of war Independence while lying in the waters of Boston Harbor and while such vessel was in commission and in the actual service of the United States. In this case the Supreme Court held that it was not the offense com- mitted but the place in which it was com- mitted that determined the question of juris- diction. It appeared that the United States had no jurisdiction over the waters of Boston Bay, in which the gunboat Independence was lying when the murder was committed, but that such waters were within the sole and ex- clusive jiu-isdiction of the State of Massachu- setts. The very opposite is true in the case at bar * * *. 'While the facts of these two cases are very similar, yet they are entirely different and the direct opposite of each other in the matter of jurisdiction * * *. We must, therefore, hold that * .* .* the bat- tleship Indiana was a 'place' within the mean- 66 Land and Naval Forces. Pt. 1. THE CONSTITUTION. Art. I, Sec. 8. ing of the United States statutes." (U. S. v. Carter, 84 Fed. Rep., 622.) The coiirts of the Philippine Islands have no jurisdiction over offenses committed on board a naval vessel at Cavite, notwithstanding the provision in act No. 1457 of the Philippine Commission that "the jiuisdiction of the city of Manila for police piu-poses only shall extend to 3 miles from the shore into Manila Bay," etc. The laws for the government of the Navy, the Na^'y Regulations, and lawful orders of superior naval authority, embody the only poUce regulations in force on board naval ves- sels. (File 26524-19, Oct. 26, 1910.) Article 6 of the Articles for the Government of the Na^'y (sec. 1624, R. S.) does not vest exclusive jurisdiction in a naval court-martial of the crime of miu-der. The general rule is that jurisdiction of civil courts is concurrent as to offenses triable before coiuts-martial. Ac- cordingly, heldih^il homicide committed on a naval hospital ship at Olongapo, Philippine Islands, by a ci^•ihan may be tried by a Federal comt in the first judicial district of the United States to which the offender is brought. Coiuls of the Philippine Islands did not have jurisdic- tion in this case, as the offense, if any, was against the United States, and the Philippine courts only have jurisdiction of offenses against Philippine Government. (28 Op. Atty. Gen., 24.) Public ships of war of the United States "are exempt even from a foreign jiu^isdiction; and when lying in the domains of another nation are not subject to its coiu-ts, but all civil and crim- inal causes arising on board of them are exclu- sively cognizable in the coiuts of the United States. This is a principle of public law which has its foundation in the equality and inde- pendence of sovereign States, and in the fatal inconveniences and confusion which any other rule would introduce. * * * Every argument by which this exemption is sustained as to for- eign States applies with equal force as between the United States and every particular State of the Union; and it is fortified by other argu- ments drawn from the peculiar nature and pro- visions of our own municipal Constitution." (Argument of Attorney General, U.S. r. Bevans, 3 WTieat., 373, 374.) " "The principle that ever\' power have ex- clusive jurisdiction over offenses committed on board their own public ships wherever they may be is also demonstrated in a speech of the present Chief Justice of the United States [Marshall], delivered in the House of Repre- sentatives in the celebrated case of Nash aUas Robins, which argument, though made in an- other forum and for another object, applies with irresistible force to every claim of jurisdiction over a public ship that may be set up by any sovereign power other than that to wliich such ship belongs (Bee 266 n). All jurisdiction is founded on consent; either the consent of all the citizens implied in the social compact itself, or the express consent of the party or his sov- ereign. But in this case, so far from there being any consent implied or express, that the State courts should take cognizance of offenses com- mitted on board of ships of war belonging to the United States, those ships enter the ports of the different States imder the permission of the State governments, which is as much a waiver of jiuisdiction as it would be in the case of a foreign ship entering by the same permission. A foreign ship would be exempt from the local jurisdiction; and the sovereignty of the United States on board their own ships of war can not be less perfect while they remain in any of the ports of the Confederacy than if they were in a port wholly foreign. But we have seen that when they are in a foreign port they are exempt from the jurisdiction of the country. With still more reason must they be exempt from the jurisdiction of the local tribiuials when they are in a port of the Union. " (Argument for United States, U. S. v. Bevans, 3 Wheat., 352-355.) [In tliis case the Supreme Court held that it was "unnecessary to decide the question re- specting the jurisdiction of the State court." The Attorney General argued that "if the offense in question be not cognizable by the circuit court [of the United States] it is entirely dispunishable," [the State courts being with- out jurisdiction, and the naval courts-martial's .jurisdiction not including this crime, under the Articles for the Government of the Na^•y]. The Supreme Coiu-t, however, merely decided that the Federal circuit court did not have jiuis- diction.] 'Wliether, if murder should be committed on board a ship of war lying witliin the body of any county, the courts of the State might not inter- pose, may well be doubted. (6 Op. Atty. Gen., 413; compare Ex parte Tatem, 23 Fed. Cas. No. 1759; 16 Op. Atty. Gen., 647.) A naval court-martial has jiu"isdiction to try an enlisted man of the Navy for fatally wound- ing another enlisted man on board a ship of war in the Thames River, opposite the city of New London, Conn. The civil authorities of Connecticut decided that the case "should be dealt with by the authorities of the United States." The Attorney General stated, among other things, that the State authorities "might probably " have tried the man for manslaughter. (16 Op. Atty. Gen., 578.) Murder committed by an enlisted man on board a naval vessel at the navy yard, Phila- delphia, may be dealt with by naval court- martial aa manslaughter. (G. C. M. Rec. No 16098; file 6674-10, Mar. 8, 1910.) "The charge of Mr. Justice Belts [in U. S. v. Mackenzie, 30 Fed. Cas. No. 18313] is legal authority to the point that a court-martial having lawfully entered upon cognizance of a case, the civil magistrate can not lawfully interrupt or disturb its jurisdiction and right of complete and final action." (6 Op. Atty. Gen., 413.) "In any case in which the delivery- of a per- son in the Navy^ or Marine Corps for trial is desired by the civil authorities, Federal or State, and such person is a naval prisoner (which includes any person serving sentence of court-martial or in custody awaiting trial by court-martial or disposition of charges against him), he will not in general be delivered to the Federal or State authorities until he has served the sentence of the naval court-martial, or his case has otherwise been finally disposed of by the naval authorities." (G. O. No. 121, Navy Department. Sept. 17, 1914; Naval Courts and Boards, 1917, sec. 29 (15). 67 Art. I, Sec. 8. Pt. 1. THE CONSTITUTION. Land and Naval Forces. Ae to jurisdiction of civil aulhorilies over persona in niilitiiry service, see lurtluT, note to Article 1, section 8, clause 11, "Jurisdiction over persons in military service during war," and note to Article 1, section 8, clause 13, "Exemption of Federal officers and subordi- nates from arrest by State authorities." VI. Application of Constitution to the Navy. Whether constitutional limitations re- strict Congress in legislating for Navy.— The requirement as to presentment or indict- ment by grand jury as a prerequisite to trial for criminal "offenses, does not extend to "cases arising in the land or naval forces, or in the militia. Avhen in actual service in time of war or public danger." (Art. V of the amend- ments, Runkle V. V. S., 19 Ct. Cls., 410, 411.) [As to trials by consular courts, see In re Ross, 140 U.S., 453.] The Sixth Amendment, entitling the accused to be confronted with the witnesses against him, has no a])plication to the proceedings of courts-martial; nevertheless the principles enumerated by the civil courts are persuasive in gi^^ng effect to a legislative enactment to accomplish a similar intent in proceedings of courts-martial. (MuUan v. U. S., 42 Ct. Cls., 157, 176; aflirmed 212 U. S., 516.) The right of trial by jurj', guaranteed to persons accused of crime (Art. Ill, sec. 2, clause 3, and Art. VI, amendments) does not apply to persons in the Army and Navy, as this right was evidently intended to be limited to persons who were subject to presentment or indictment by grand jurj', and also trial by court-martial was the mode which prevailed in England and in the colonies, at the time the Constitution was framed, for the punishment of persons in the military and naval ser^dce. (See note above, under this clause, "Trials by jury not required in the Navy.") . ' ' The Constitution itself provides for military government as well as for civil government. And we do not understand it to be claimed that the civil safeguards of the Constitution have application in cases within the proper sphere of the former * * *. It ia not denied that the power to make rules for the government of the Army and Navy is a power to provide for trial and punishment by military courts without a jury. It has been so understood and exercised from the adoption of the Constitution to the present time. Nor in our judgment does the fifth or any other amendment abridge that power * * *. We think, therefore, that the power of Congress in the government of the land and naval forces and of the militia is not at all affected by the fifth or any other amend- ment." (Conciuring opinion of Chief Justice Chase and three other justices in Ex parte Mil- ligan, 4 Wall. , 137 ; see also In re Bogart, 3 Fed. Cas. No. 1596.) ' ' Aside from constitutional provisions, it is a plain dictate of common justice that no person shall be deprived of life, liberty, or property without due process of law." Accordingly, the proceedings of a court-martial are illegal where one member was detached and another substi- tuted l)y the Chief of the Bureau of Navigation without authority from the Secretary of the Navy who convened the court. (22 Op. Atty. Gen., 137.) " If it be desirable or necessary that the pris- oner in a civil court be present at every pro- ceeding after indictment, it seems to be still more so that a prisoner before a court-martial should be present, for he ordinarily is not repre- sented by counsel learned in the law and watch- ful of his interests, but (as in this case) by some naval officer acting from a humane motive." (Weirman r. U. S., 36 Ct. Cls., 236. See furtlier note to Amendments, Art. V, "Proceedings in absence of accused.") "The Constitution does apply, and is univer- sally admitted to apply, with the same force and effect to military courts as to other tribu- nals." (9 Op. Atty. Gen., 230.) [It was held by the same Attorney General that an article of war "authorized 'depositions taken in accord- ance with it to be read in cases not capital;' although the Constitution provides that the accused in criminal prosecutions shall have the right to be confronted with the witnesses against him." (File 26260-1392, June 29, 1911, p. 30, citing 9 Op. Atty. Gen., 311, 312.).] "Let us see if the sentence [of an Army court-martial] was void because in violation of the fifth amendment. That amendment declares: 'Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.' The Government objects in the outset that the fifth amendment is not applicable in proceedings by court-martial. * * * Resei-ving, however, the determina- tion of these questions, it is nevertheless clear that the system under which the accused was tried, and his status as an officer of the Army, must be borne in mind in deciding whether the amendment, if applicable, was or was not violated by this sentence. * * * The result is that we are of opinion that the sentence can not be invalidated on any of the grounds so far considered." (Carter v. McClaughry, 183 U. S., 365.) [It was not decided in this case whether the prohibition against double jeop- ardy, in the fifth amendment, applies to Army courts-martial. But see Grafton v. U. S., 206 U. S., 352, noted below.] Courts-martial are "courts authorized by law in the enforcement of a system of government for a separate community recognized by the Constitution," and "it is difficult to see why" the finality of their sentences should not be determined by the same rule which has been applied to the courts of the District of Columbia. (Carter v. McClaughry, 183 U. S., 365. For de- cisions as to whether constitutional limitations restrict Congress in legislating for the District of Columbia and for the Territories, see note to Art. IV, sec. 3, clause 2.) The fact that Congress is given power by the Constitution "to make rules for the gov- ernment and regulation of the land and naval forces" does not enable it to control the Presi- dent's discretion in respect of those appoint- ments which the same supreme law [Const., Art. II, sec. 2, clause 2] requires him to make. The general power to regulate such forces can not be taken to nullify the specific mandate 68 The Militia. Pt. 1. THE CONSTITUTION. Art. I, Sec. 8. to the President to appoint to offices where Congress has made no other provision. (30 Op. Atty. Gen., 177; see also note to Art. II, sec. 2, clause 2.) "Congress, by express constitutional pro- vision, has the power to prescribe rules for the government and regulation of the Army, but those rules, must be interpreted in con- nection with thie prohibition against a man's being put twice in jeopardy for the same offense. The former provision must not be so interpreted as to nullify the latter." (Graf- toQ^;. U. S.,206U. S., 352.) A board of officers organized under an act of Congress for the reduction of the Army is "not a court of any kind," and it is unnecessary to consider "how far its irregularities extended," although it is contended by an officer mustered out of the service pursuant to the board 's finding that its proceedings "were in many respects irregular, illegal, and in violation of his consti- tutional rights." (Duryea v. U. S., 17 Ct. Cls., 24; see also file 26260-1392, June 29, 1911.) See In re Ross (140 U. S., 453), holding that "By the Constitution of the United States a government is ordained and established 'for the United States of America,' and not for countries outside of their limits; and that Constitution can have no operation in another country"; and accordingly that Congress is empowered to authorize the trial of a capital offense by a consular court in China, etc., without indictment by grand jury, and with- out a jury on the trial. [Clause 15. Calling forth of the Militia.] ^^ To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; and proper means to effectuate the object. One of the best means to repel invasions is to provide the requisite force for action before the invader Mmself has reached the soil." (Martin v. Mott, 12 Wheat., 19.) "The Constitution, which enumerates the exclusive purposes for which the militia may l)e called into the service of the United States, af- fords no warrant for the use of the militia by the General Government, except to suppress insur- rection, repel invasions, or to execute the laws of the Union, and hence the President has no authority to call forth the Organized Militia of the States and send it into a foreign country with the Regular Army as a part of an army of occupation." (29 Op.' Atty. Gen., 322.) "As 'insurrection' is necessarily internal and domestic, within the territorial limits of the Nation, this portion of the sentence can afford no warrant for sending the militia to suppress it elsewhere. And even if an insiurection of our own citizens were set on foot and threaten- ingly maintained in a foreign jm-isdiction and upon our border, to send an armed force there to suppress it would be an act of war which the President can not rightfully do. " (29 Op. Atty. Gen., 322.) "The term 'to repel invasion' may be, in some respects, more elastic in its meaning. Thus, if the militia were called into the ser\dce of the General Government to repel an invasion, it would not be necessary to discontinue their use at the boundary line, but they might (with- in certain limits at least) pursue and capture the invading force, even beyond that line, and just as the Regular Army might be used for that purpose. Tliis may well be held to be witliin the meaning of the term 'to repel inva- sion.' Then, too, if an armed force were assem- bled upon our border, so near and under cir- cumstances which plainly indicated hostility and an intended invasion, this Government might attack and captm'e or defeat such forces, using either the Regular Army or the militia for that purpose. This, also, would be but one of the ways of repelling an invasion. But this is quite different from and affords no warrant Naval Militia. — Congress has provided ' ' that in the event of war, actual or threatened, with any foreign nation involving danger of inva- sion, or of rebellion against the authority of the Government of the United States, or whenever the President is, in his judgment, unable with the regular forces at his command to execute the laws of the United States, it shall be lawful for the President to call forth such nimiber of the Naval IMilitia of a State, or of the States, or Territories, or of the District of Columbia, as he may deem necessary to repel such invasion, suppress such rebellion, or to enable him to ex- ecute such laws, and to issue liis orders for that purpose, through the governor of the respective State or Territory, or through the commanding officer of the Naval Militia of the District of Columbia, from which State, Territory, or Dis- trict such Naval Militia may be called, to such officers of the Naval Militia as he may think proper." (Sec. 3, act Feb. 16, 1914, 38 Stat., 284, repealed by naval appropriation act July 1, 1918, 40 Stat., 708.) "The authority to decide whether the exi- gencies contemplated in the Constitution of the United States, and the act of Congress * * * in which the President has authority to call forth the militia, to execute the laws of the Union, suppress insurrections, and repel inva- sions, have arisen, is exclusively vested in the President, and his decision is exclusive [con- clusive] upon all other persons." (Martin v. Mott, 12^Vheat., 19; Luther i;. Borden, 7 How., ''It is obvious that there are two ways by which the militia may be called into service; the one is under State authority, the other un- der authority of the United States. * * * But the possession of this power, or even the passing of laws in the exercise of it, does not preclude the General Government from leaning upon the State authority, if they think proper, for the purpose of calling the miUtia into service." (Houston V. Moore, 5 Wlieat., 1, 36.) "The power to provide for repelling invasions includes the power to provide against the at- tempt and danger of invasion, as the necessary 69 Art. I, Sec. 8. Ft. 1. THE CONSTITUTION. The Militia. for sending the militia into a foreign country in time of poace and when no invasion is made or throalened." (29 Op. Atty. Gen.. 322.) "The only remaining occasion for calling out the militia is 'to execute the laws of the Union.' But this certainly means to execute such laws where, and only where, they are in force and can be executed or enforced. * * * Outside of our own limits ' the laws of the Union ' are not executed by armed force, either regular or mili- tia. * * * ^\^lat is certainly meant by this pro^'ision is, that Congress shall have power to call out the militia in aid of the civil power, for the peaceful execution of the laws of the Union, wherever such laws are in force and may be compulsorily executed^ much as a sheriff may call upon a posse comitatus to peacefully dis- gerse a riot or execute the laws. Under our onstitution, as it has been uniformly con- strued from the first, the military is subordinate and subser^•ient to the civil power, and it can be called upon to execute the laws of the Union only in aid of the civil power and where the ci\nl power has jurisdiction of such enforce- ment. Even the Regular Ai-my can be thus called upon only on such occasions; and, cer- tainly, the militia can not be thus called upon at any other." (29 Op. Atty. Gen., 322.) Congress has provided that the Naval Militia, when called into the service of the United States, shall be required to serve "either within or without the territory of the United States." (Act Feb. 16, 1914, sec. 4, 38 Stat., 284, Gen. Order No. 77, Feb. 25, 1914, repealed by naval appropriation act July 1, 1918; 40 Stat., 708.) Such a provision '"must be read in view of the constitutional power of Congress to call forth the militia only to suppress insurrection, repel in- vasions, or to execute tlie laws of the Union. Congress can not, by its own enactment, enlarge the power conferred upon it by the Constitu- tion; and if this provision were construed to authorize Congress to use the Organized Militia for any other than the three purposes specified, it would be unconstitutional. This provision applies only to cases where, under the Consti- tution, said militia may l^e used outside of our own borders, and was, doubtless, inserted as a matter of precaution and to prevent the pos- sible recurrence of what took place in our last war with Great Britain, when portions of the militia refused to obey orders to cross the Canadian border." (29 Op. Atty. Gen., 322 ) Duty outside the United States under selective di'af t law. — The service which may be exacted of tlie citizen undor the Army power, which includes the power to compel military service, is not limited to the specific purposes for which Congress is expressly au- thorized by the militia clause to call the militia; the presence in the Constitution of such express regulations affords no basis for an inference that the Army power, when exerted, is not complete and dominant to the extent of its exertion. (Selective Draft Law Cases, 245 U.S., 366.) Congress may conscript for military duty in a foreign country; the militia clause is not a limitation upon the war power. (Cox v . Wood, 247 U. S., 3.) [Clause 16. Power over the militia.] ^^ To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of trainhig the Militia according to the discipline prescribed by Congress; Naval MiUtia. — Congress made detailed provision for "organizing, arming, and dis- ciplining" the naval militia and " for governing such part of them as may he employed in the service of the United States," by act February 16, 1914. (38 suit., 283, G. O. No. 77, Feb. 25, 1914; repealed by naval appropriation act July 1, 1918, 40 Stat. 708.) ' ' Congress is thus expressly vested with the power to * * * provide for governing such part only of the militia of the several States as, having been called forth to execute the laws of the Union, to 6ui)press insurrections, or to repel invasions, is employed in the sei^vice of the United States." (Johnson r. Sayre, 158 U. S., 114.) "It is also too plain for argument that the power here given to Congress over the militia is of a limited nature and confined to the objects specified in these clauses, and that in all other respects and for all other puqjoses tlie militia are subject to the control and government of the State authorities." (Houston v. Moore, _ 5 WTieat., 1, 50, dissenting opinion of Mr. Justice Story.) "Congress have no power and never had to subject a militiaman not in the military or naval service of the United States * * * to a trial by court-martial for any crime, especially one that is capital or infamous. This is plain enough upon the face of the Constitution." (Ex parte Henderson, 11 Fed. Cas., 1076.) The purpose of the naval militia law of February 16, 1914, "is to encourage on the part of the Government the development of a source from which the Nation in time of war may be supplied witli a body of men trained in the handling of the weapons of marine warfare that may immediately 1>e added to the RegularNavy for the efficient handling of vessels of war." Naval vessels loaned to State militia organiza- tions may be used only for the training and in- struction of the militia. ""WTiile it may per- haps be said that in a certain sense the use by the State of IMaryland of the Montgomery for the purpose of quelling 'riots, insurrection, or de- fiance of civil law within the State limits ' is such a use as may tend to promote the efficiency of the naval militia that may 1)0 aboard , it is never- theless considered that such a use of a naval vessel, her armament and equipment, for what is in reality a purely local police work is a use entirely foreign to the promotion of tlie effi- ciency of th% naval militia as contemplated by 70 Exclusive jurisdiction. Pt. 1. THE CONSTITUTION. Art. I, Sec. 8. the act of February 16, 1914 * * *." (File 4570-194, Mar. 15, 1915.) "So long as the militia are acting under the miUtary jurisdiction of the State to wluch they belong, the powers of legislation over them are concurrent in the General and State Govern- ment. Congress has power to provide for organ- izing, arming, and disciplining them, and this power being unlimited, except in the two par- ticulars of officering and training them, accord- ing to the discipline to be prescribed by Con- gress, it may be exercised to any extent tha- may be deemed necessary by Congress. But at State militia the power of the State govern- ments to legislate on the same subjects having existed prior to the formation of the Constitu- tion and not having been prohibited by that in- stniment it remains with the States, subordi- nate, nevertheless, to the paramount law of the General Government operating upon the same subject. ' ' (Houston v . Moore, 5 \\Tieat. ,1,16.) ' ' After a detachment of the militia have been called forth, and have entered into the service of the United States, tlie authority of the Gen- eral Government over such detachment is ex- clusive. This is also obvious. Over the na- tional militia the State governments never had or could have jurisdiction. None such is con- ferred by the Constitution of the United States, consequently none such can exist." (Houston V. Moore, 5 IVheat., 1, 17.) Congress is empowered to fix the period when a portion of the militia, called forth by the Presi- dent, shall enter the service of the United States and change their character from State to Na- tional militia. "That Congress might by law have fixed the period by confining it to the draft, the order given to the chief magistrate or other militia officer of the State, to the arrival of the men at the place of rendezvous, or to any other ch'cumstance, I can entertain no doubt. This would certainly be included in the more extensive powers of calling forth the militia, or- ganizing, arming, disciplining, and governing them." (Houston v. Moore, 5 "\\lieat., 1, 17.) Congress may provide for the punishment by court-martial of a militiaman who refuses or neglects to o))ey the order of the President call- ing forth the militia. "This flows from the power l^e&towed upon the General Government to call them forth, and consequently to punish disobedience to a legal order, and by no means proves that the call of the President places the detachment in the service of the United States." (Houston V. Moore, 5 WTieat., 1, 18.) "Although a militiaman who refused to obey the orders of the President calling him into the public ser\dce under the act of 1795 is not, in the sense of that act, ' employed in the service of the United States' so as to be subject to the rules and articles of war, yet he is liable to be tried for the offense under the fifth section of the same act, by a court-martial, called under the au- thority of the United States." (Martin v. Mott, 12 Wheat., 19.) Under the same circumstances the militiaman might be tried by a court- martial of the State for refusing to respond to the call of the President. (Houston v. Moore, 5 ^^lieat., 1.) Members of the naval militia, participating with the Regular Navy in cruises for the purpose of training and instruction, are not employed in the service of tlie United States, but remain civilians and consequently are not subject to punishment under the Articles for the Govern- ment of the Navy. The naval officer in com- mand has, however, full authority to enforce any orders which affect the discipline, safety, and well-being of the sliip or any part of the armament, equipment, or crew of the vessel under his command, and to this end may, if necessary, place militiamen in confinement or remove them from the vessel under lawful regu- lations issued by the Na\'y Department, not as punishment, but merely to maintain discipline. (File 3973-107, Feb. 16, 1915; see note to Art. I, sec. 8, clause 14, concerning jurisdiction of Federal courts-martial.) Naval militia officers can not impose punish- ments on men belonging to their organizations while cruising on board a vessel of the Regular Navy, nor can naval militia officers convene State courts-martial on such vessels. (File 3973-107, Feb. 16, 1915.) By act of Aug. 29, 1916, 39 Stat., 598, naval militia courts-martial were authorized to convene on board naval vessels; this act was repealed by naval appro- priations act July 1, 1918 (40 Stat., 708). Naval militia officers cruising with the Regu- lar Navy for training and instruction are author- ized by law to perform duty and to exercise au- thority over the naval personnel ot inferior rank, but can not impose punishments upon persons in the naval service. (Pile 3973-107, Feb. 16, 1915.) "A State statute providing that all able- bodied male citizens of the State between 18 and 45, except those exempted, shall be subject to military duty, and shall be enrolled and de- signated as the State militia and prohibiting all bodies of men other than the regularly organized volunteer militia of the State and the troops of the United States from associating together as military organizations or drilling or parading with arms in any city of the State without license from the governor, as to these provisions is constitutional and does not infringe the laws of the United States." (Presser v. Illinois, 116 U. S., 252.) Federal power dominant. — The militia power reserved to the States by the militia clause of the Constitution, while separate and distinct in its field, and while serving to dimin- ish occasion for exercising the Army power, is subject to be restricted in, or even deprived of, its area of oijeration through the Army power, which includes the power to compel military service, according to the extent to which Congress, in its discretion, finds neces- sity for calling the latter into play. (Selective Draft Law Cases, 245 U. S., 366.) [Clause 17. Power of exclusive legislation.] ^' To exercise exclusive Legis- lation in all Cases whatsoever, over such District (not exceeding ten ^iiles square) as may, by Cession of particular States, and the acceptance of Congress, 71 Art. I, Sec. 9. Pt. 1. THE CONSTITUTION. Habeas Corpus. become the Seat of the Government of the United States, and to exercise hke Authority over all Places purchased l)y the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; — And See note to section 355, Revised Statutes, as to jurisdiction over naval reservations and other places belonging to the United States. [Clause 18. General legislative power. 1 '^ To make all Laws which shall be necessary and proper for carrying hito Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Sectiox 9. [Clause 1. Migration or importation of persons.] ^ The Migra- tion or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. [Clause 2. Writ of habeas corpus.] - The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Cranch, 75, 101; followed by Taney, C. J., in Ex parte Merryman, 17 Fed. Cas. No. 9487; see also Ex parte Benedict, 3 Fed. Cas., 1292; McCall V. McDowell, 15 Fed. Cas. No. 8673; In re Kemp, 16 Wis., 359, 377; Griffin v. Wilcox, 21 Ind., 383; 8 Op. Atty. Gen., 372; Warren v. Paul, 22 Ind., 277; Prigg v. Pennsylvania, 16 Pet., 619; Wright i-. Johnson, 5 Ark., 687; In re Boyle, 6 Idaho, 609, 57 Pac, 706,45 L. R. A., 832; Ex parte Moore, 64 N. C, 802.) The President has power to declare martial law, and as a necessary consequence to suspend the privilege of the writ of habeas corpus. Martial law and the pri^■ilege of this writ are wholly incompatible. The remark of Chief Justice Marshall in the Bollman case seems to have been an obiter dictum [a remark made by the way, or incidentally]; and at the time of Chief Justice Taney's opinion, the President had not declared martial law; the case of Ex parte Benedict is to be distinguished for the same reason. (Ex parte Field, 9 Fed. Cas. No. 4761; see also Ex parte Vallandigham, 27 Fed. Cas. No. 16816.) "There is a plain distinction between the suspension of the writ in the sense of the clause of the Constitution, and the right of a military commander to refuse obedience when justified by the exigencies of war, or the ipso facto sus- pension which takes place wherever martial law actually exists, wliich the Chief Justice seems to have overlooked. But this kind of suspension, which comes with war and exists without proclamation or other act, is limited by the necessities of war. It applies only to cases where the demands upon the officer's time and ser^dce8 are such that he can not con- sistently with his superior military duty, yield obedience to the mandates of the civil authori- ties, and to cases arising within districts which are properly subjected to martial law. In cases of the latter description, it is probable that the civil magistrates would be bound to take judi- cial notice of the existence of martial law, by Definition. — The writ of habeas corpus is a high prerogative writ known to the common law, the great object of which is the liberation of those who may be imprisoned without suf- ficient cause. It is in the nature of a writ of error to examine the legality of the commit- ment. (Ex parte Watkins, 3 Pet., 202.) [The ordinary writ of habeas corpus, known as "ha- beas corpus ad subjuciendum," is the written order of a judge or court of competent jurisdic- tion, addre&sed to a person who is alleged to restrain another of his liberty without authority of law, and requiring the speedy production in court of the person so alleged to be illegally restrained, together with a return or statement setting forth the true cause of such restraint. If satisfactory cause be shown at the hearing, the court will remand the prisoner into the custody of the respondent; otherwise his im- mediate release will be ordered.] "For the meaning of the term habeas corpus, resort must unquestionably be had to the com- mon law; but the power to award the writ by any of the courts of the United States must be given by the written law." (Ex parte Bollman, 4 Cranch, 75.) Only "privilege" of writ may be sus- pended. — "Suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on its retiu-n the court decides whether the applicant is denied the right of proceeding any further." (Ex parte Milligan, 4 Wall., 2; see also, In re Fagan, 8 Fed. Cas. No. 4604.) May be suspended only by authority of Congress. — "If at any time the pubUc safety should require the suspension of the powers vested by this act in the courts of the United States [that is, the power to issue writs of ha- beas corpus], it is for the legislature to say bo. The question depends on political considera- tions on which the legislature is to decide." (Per Marshall, C. J., Ex parte Bollman, 4 72 Bills of Attainder. Pt. 1. THE CONSTITUTION. Art. I, Sec. 9. which their functions are so far suspended, but as to the former, it would seem that the military officer should, if practicable, make return of the facts showing his excuse." (In re Kemp, 16 Wis., 359.) Only Congress can repeal all power to issue the writ; but the President has lawful power to suspend the privilege of persons arrested in case of a great and dangerous rebellion, for he is especially charged by the Constitution with the "public safety." (10 Op. Atty. Gen., 74; see also In re Dugan, 6 D. C, 139.) By act of March 3, 1863, Congress authorized the President to suspend the privilege of the wi'it of habeas corpus "during the present re- bellion," whene\'er in his judgment the public safety may require it. "This law was passed in a time of gi'eat national peril, when oiu" heritage of free government was in danger. An armed rebellion against the national au- thority, of greater proportion than liistory af- fords an example of, was raging; and the pub- lic safety required that the privilege of the writ of habeas corpus should be suspended. The President had practically suspended it, and detained siispected persons in custody without trial; but his authority to do this was questioned. It was claimed that Congress alone could exercise this power; and that the legislature, and not the President, should judge of the political considerations on which the right to suspend it rested. The privilege of this gi'eat writ had never before been with- held from the citizen; and as the exigence of the times demanded immediate action, it was of the highest importance that the lawfulness of the suspension should be established. It was under these circumstances, which were such as to arrest the attention of the country, that this law was passed . " (Ex parte MilUgan, 4 Wall., 2, 115; see also, Matter of Dunn, 8 Fed. Cas. No. 4171; Matter of Oliver, 17 Wis., 686.) " It is essential to the safety of every Govern- ment that in a great crisis like the one we have just passed through [civil war] there should be a power somewhere of suspending the writ of habeas corpus." (ExparteMilligan, 4Wall., 2.) When privilege of writ may be sus- pended. — Under the Constitution the privilege [Clause 3. Bills of attainder and ex post facto laws.]^ No Bill of Attainder or ex post facto Law shall be passed. oi the writ of habeas corpus may be suspended only in two cases, namely, "rebellion," and "invasion." (Matter of Keeler, 14 Fed. Cas. No. 7637.) Effect of suspmilion. — "A citizen not con- nected with the military service and resident in a State where the courts are open and in the proper exercise of their jurisdiction can not, even when the privilege of the writ of habeas corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary courts of law." (Ex parte Milligan, 4 Wall., 2; but see concurring opinion of four justices in this case; see also McCall v. McDowell, 15 Fed. Cas. No. 8673.) "In the emergency of the times, an imme- diate public investigation according to law may not be possible; and yet the peril to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the Government, if it should see fit, in the exercise of a proper discretion, to make arrests, should not be re- quired to produce the person arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say that after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of common law. If it had intended tliis result, it was easy by the use of direct words to have accomplished it." (Ex parte Milligan, 4 Wall., 2.) A person making an Ulegal arrest, even when the privilege of the writ of habeas corpus is suspended, is Liable to damages in a civil suit for such arrest and to punishment in a criminal prosecution. (Griffin v. Wilcox, 21 Ind., 372.) Effect of President's proclamation suspend- ing privilege of writ is to stop proceedings upon habeas corpus although commenced prior to date of proclamation. (Matter of Dunn, 8 Fed. Cas. No. 4171.) As to power of Congi'ess to protect military officers against civil or criminal responsibility, see note to Article I, section 8, clause 13. On general subject of habeas corpus, see sec- tions 751, et seq.. Revised Statutes. "A bill of attainder is a legislative act which intlicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the (Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the textbooks, judicial magistracy; it pro- nounces upon the guilt of the party without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of e\T.dence or other- wise; and it fixes the degree of punishment in accordance with its own notions of the enormity oftheoffense." (Cummingsii. Missouri, 4 Wall., 277; see also In re Yung Sing Hee, 36 Fed. Rep., 437; In re De Giacomo, 7 Fed. Cas. No. 3747; Anderson v. Baker, 23 Md., 623; Drehman V. Stifle, 8 Wall., 601; Fletcher v. Peck, 6 Cranch, 138.) The injustice and tyranny wliich characterize ex post facto laws consist altogether in their re- trospective operation, which applies with equal force, although not exclusively, to bills of at- tainder. (Ogden i). Saunders, 12 Wheat., 266.) A provision that persons convicted of certain crimes shall not be permitted to vote or hold office is not in the nature of a bill of attainder, as it requires conviction before the penalties are made to attach. (Washington v. State, 75 Ala., 585.) A federal statute, providing that deserters from the military and naval ser\dce shall forfeit their rights of citizenship and the right to be- come citizens, is not void as a bill of attainder, because it contemplates trial by a coiu-t-martial 73 Art. I, Sec. 9. Pt. 1. THE CONSTITUTION. Ex Post Facto Laws. to enforce tliis penalty as well aa the other peiial- tiea for desertion. (Got<"heu8 v. Matlieson, 58 Barb. (N. Y.), 153, Gl N. Y.,425; see also State V. Synioiuls, 57 Maine, 148; Uolt v. Jlolt, 59 Maine, 4(i4; Severance v. liealv, 50 N. H.,44S; Hiiber v. lleily, 53 Pa. St., 112; McCafferty v. Guver, 59 Pa. St., 110; Kurtz v. Moffitt, 115 U. S., 501; and see sees. l!)!l(3 and 1998, R. S.) Tl\e following are examples of statutes held void aa bills of attainder: A federal statute pre- scribing;: an oath that deponent had never volun- tarily borne arms ajjainst the United States or ^iven aid to its enemies, etc., as a (lualilication lor admission as an attorney before the United States courts (Ex jtarte Garland, 4 Wall., 333); a similar reciuirement as a condition precedent to holding ofiice or practicing law or mini.stry in a State (Cumniings v. MLssouri, 4 Wall., 277; see also In re Shorter, 22 Fed. Cas. No. 12811); a statute making the nonpayment of taxes during the (,'ivil War evidence of disloyalty, and pro- viding for the forfeiture of lands without a judi- cial liearing (Martin v. Snowden, ISGratt., 100); providing castration upon couA-iction of second offense ( Davis r. Berry, 21(5 Fed. Rep., 413, 419); a statute excluding from the United States Chi- nese citizens (In re Yung Sing Hee, 36 Fed. Rep., 437; compai-e In re Chae Chan Ping, 36 Fed. Rep., 431). [A pro\'ision that no person shall be civilly prosecuted for any act done by virtue of militarv authority was held not to.be a bill of attiiinder. (Drehman v. Stifle, 8 Wall., 590; see also Clark v. Dick, 5 Fed. Cas. No. 2818.)] Ex post facto laws. — A statute belongs to tills class '"which by its necessary operation and 'in its relation to the offense, or its conse- quences, alters the situation of the accused to his disadvantage.' * * * Of course a stat- ute is not of that class unless it materially im- pairs the right of the accused to have the ques- tion of his guilt determined according to the law as it was when the offense was committed . And therefore it is well settled that the accused is not of right entitled to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal cases at the time of the commission of the offense charged against Mm. ' ' (Thompson v. Utah, 170 U. S., 343; see also Duncan v. Missouri, 152 U. S., 382; Medley, Pe- titioner, 134 U. S., 171.) "The legislature may abolish courts and cre- ate new ones, and it may prescribe altogether different modes of procedure in its discretion, though it can not lawfully, we think, in so doing dispense with any of those substantial protec- tions with which the existing law surrounds the person accused of crime." (Cooley on Const. Lira., quoted with approval in Thompson v. Utah, 170 U. S., 343; see also Kriug v. Missouri, 107 U. S., 221.) No one has a vested right in mere modes of procedure. Statutes regulating procedure, if they leave untouched all the substantial pro- tections witli wliich existing law surrounds the person accused of crime, are not within tlie con- stitutional inhibition of ex post facto laws. But a statute which takes from the accused a substantial right given to him by the law in force at the time to which liis guilt relates would be ex post facto in its natiu-e and operation, and legislation of that kind can not be sustained simply because, in a general sense, it may be sai(l to regulate procedure. (Thonipsoini. Utah, 170 U. S., 343; see also Gibson v. Mississippi. 162 U. S., 590; State v. Fourchy, 106 La., 749.) "The difficulty is not so much as to the sound- ness of tlie general rule that an accused has no vested right in particular models of ])rocediire, as in determining whetlier particular statutes by their operation take from an accused any right that was regarded at the time of the adoption of tlie Constitution as vital for the protection of life and liberty and which he enjoyed at the time of the offen.se charged against him." (Thompson v. Utah, 170 U. S., 343.) Ex post facto laws include: "First, every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. Second, every law that aggravates a crime or makes it greater than it was when committed. Third, every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. Fourth, every law that alters the legal rules of evidence and receives less or different testi- mony than the law required at the time of the commission of the offense in order to convict the offender." (Per Chase, J., Calder v. Bull, 3 Dall., 386.) The above classification by Justice Chase, al- though obiter dictum, "has often been repeated by judges and text-writers in discussing the subject. Still it may not be presumptuous to say that doubts may be entertained whether his foiirth class does not include cases outside of the prohibition; whether every law that alters the legal rules of evidence and receives different testimony than the law required at the time of the commission of the offense in order to convict the offender, is an ex post facto law." ^ (Moore y. State, 43 N. J. L., 216.) A statute is not void as ex post facto because it removes disability of witness, thereby en- larging the classes of persons who are competent to testify in criminal cases. (Hopt v. Utah, 110 U. S., 589.) A statute authorizing the comparison of dis- puted handwTiting with any wa-iting proved to be genuine is not ex post facto, although ap- plicable to crimes committed prior to its enact- ment and altering the legal rules of evidence in existence at the time of the commission of the offense. (Thompson v. Missouri, 171 U. S., 380. This decision related to a State law. A similar statute was passed by Congress, Feb. 26, 1913, 37 Stat., 683.) "We are not to be understood as holding that there may not be such a statutory alteration of the fundamental rules in criminal trials as might bring the statute in conflict vnth. the ex post facto clause of the Constitution. If, for instance, the statute had taken from the jury the right to determine the sufficiency or effect of the evidence which it made admis- sible, a different question would have been presented. We mean now only to adjudge that the statute is to be regarded as one merely regu- lating procedure and may be applied to crimes committed prior to its passage without impair- ing the siibstantial guaranties of life and liberty 74 Foreign Presents. PL 1. THE CONSTITUTION. Art, I, Sec. 9. 58 Barb. (N. Y.), 153, reversed on other grounds, 61 N. Y., 425; see also Kurtz v. Moffitt, 115 U. S., 501; Muqihy v. Ramsey, 114 U. S., 42; and see sees. 1996 and 1998, R. S.) A law which is not penal and does not inter- fere with the vested rights of individuals is within the constitutional power of Congress and is not objectionable as a retrospective law. (McNamara v. U. S., 28 Ct. Cls., 416.) Retro- spective laws which do not impair the obliga- tion of contracts or partake of the character of ex post facto laws are not condemned or for- bidden bv any part of the Constitution. (Sat- terlee r. Matthewson. 2 Pet., 410.) The constitutional prohibition applies to penal and criminal proceedings and not to ci^il proceedings which affect private rights retrospectively. (Watson v. Mercer, 8 Pet., ilO; In re Sawyer, 124 U. S., 219; Locke ■!). New Orleans, 4 Wall., 173: Calder v. Bull, 3 Dall., 393; DePass v. Bidwell, 124 Fed. Rep., 623.) Proceedings for recovery of penalties and for- feitures are included, as well as criminal laws and cases. (U. S. v. Hughes, 26 Fed. Cas. No. 15416.) that are secured to an accused by the supreme law of the land." (Thompson v. Missouri, 171 U. S., 380.) A statute providing that "in all questions affecting the credibility of a witness his general moral character may be given in evidence," is not ex post facto as applied to trials for offenses committed before its passage. (Robinson v. State, 84 Ind., 453.) A constitutional provision that a person con- victed of certain offenses should not be per- mitted to hold office is not ex post facto, because it does not take away a legal right nor impose any legal burden, one of which is necessaiy to the infliction of a penalty; but merely with- holds a constitutional provision which is grant- able or revocable by the sovereign power of the State at pleasure. (Washington v. State, 75 Ala., 585; biU see Cummings v. Missouri, 4 Wall., 277; Ex parte Garland, 4 AValL, 333.) Desertion from the military or naval ser\dce is a continuing offense, and therefore statutes increasing the penalties upon con\dction are not ex post facto as applied to one in desertion at the time such statutes were enacted. (Huber V. Reily, 53 Pa. St., 115; Gotcheus v. Matheson, [Clause 4. Capitation and direct taxes.] * Xo capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. See Amendments, Art. XVI. [Clause 5. Export duties.] ^ Xo Tax or Duty shall be laid on Articles exported from any State. [Clause 6. Freedom of commerce.] *• No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another, [Clause 7. Appropriations and accounting of public money.] "^ Xo IMoney shall be drawn from the Treasury, but in Consequence of Appropriations made by Law ; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. [Clause 8. Titles of nobility and gifts from foreign States.] ^Xo Title of Nobihty shall be granted by the United States: And no Person holdmg any Office of Profit or Trust under them, shall, without the Consent of the Con- gress, accept of any present. Emolument, Office, or Title, of any kind what- ever, from any King, Prince, or foreign State. tion of this clause of the Constitution. (File Acceptance of presents from foreign states, etc. — The provision of this clause applies as well to a titular prince as to a reign- ing one; and a simple remembrance of courtesy, even if merely a photograph, falls under the inclusion of "any present of any kind what- ever. "_ (24 Op. Atty. Gen., 116.) "This prohibition expressly relates to official persons, and does not extend, under the cir- ciunstances outUned, to a department of the Government or to governmental institutions." (24 Op. Atty. Gen., 116.) If the present is not to be given by any king, prince or foreign state, but by the citizens of Ponta Delgada, Azores, its acceptance by the commanding officer of a naval vessel without the consent of Congress, would not be a viola- 54641°— 22 6 T6 9644-43, Apr. 6, 1918.) ' ' A minister plenipotentiary from the United States to a foreign power can not, without the consent of Congress, accept a similar commis- sion from a tliird power; though he is not pro- hibited from rendering a friendly 8er\dce to a foreign Government, even that of negotiating a treaty, provided he does not become an officer thereof." (13 Op. Atty. Gen., 537.) "The marshal of the United States for the southern district of Florida can not at the same time hold the office of commercial agent of France." (6 Op. Atty. Gen., 409 ) "The * * * clause as to the acceptance of any emoluments, title, or office from foreign governments is founded in a just jealousy of Art. I, Sec. 10. Pt. 1. THE CONSTITUTION. Limitations on States. foreiga iulluencc of any sort. WTiether, in a Eractical soiuse, it can produce much effect, as been thought doubtful. A patriot will not be likely to be seduced from hiy duties to his country by the accei)ting of any title or present from a foreign government. An intriguing or corrupt a^ent will not be restrainetl from guilty machinations in the 8er\ace of a foreign state by such constitutional restrictions * * *." (Hie 3707, June 15. 1904, quoting Story on the Constitution, vol. 2, pp. 223, 224.) "The reasons for the prohil^ition in question apply as well to enlisted men in the military service as to officers, the difference between the cases of officers and men in this respect being one of degree only; and there may be dou])t as to whether such prohibition was not intended to apply to all ])ersons in the service of the Government, and not to those only who are appointed to office in one of the modes men- tioned in Article II, section 2, clause 2." (File 3707, June 15, 1904, citing 16 Op. Atty. Gen., 113, holding an enlisted man of the Army to be an "officer" within the meaning of section 750, Revised Statutes, allowing expenses in- curred bv witnesses for the Government; see also 27 Op. Atty. Gen., 468, 472; compare 28 Op. Atty. Gen., 320.) "The (question whether the provision of the Constitution above quoted includes within its terms any person occupying a position of trust or profit under the United States, such as an enlisted man in the Navy, is not free from doubt. Tliere are decisions which have given the word 'officer' a very broad construction in other connections * * *." (File 9&44-27, Jan. 24, 1913; see also file 7515-158, Sept. 27, 1917; file 1098-98, Aug. 9, 1918; but see 28 Op. Atty. Gen., 320.) It is proAdded by law that "hereafter any present, decoration, or other thing, which shall be conferred or presented by any foreign gov- ernment to any officer of the United States, civil, naval, or military, shall be tendered through the Department of State, and not to the individual in person, but such present, decora- tion, or other thing shall not be delivered by the Department of State unless so authorized by act of Congress." (Act June 31 1881, sec. 3, 21 Stat., 604.) "The within-named medals were tendered through the Department of State, and that department, which, under the act just cited, is charged with determining in what cases congressional authority for the delivery of things presented by foreign govern- ments is necessary, holds that such authority Section 10. [Clause 1. States not to make treaties, coin money, pass ex post facto laws, impair contracts, etc.] ^ No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit BUls of Credit; make any Thing but gold and sUver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ox post facto Law, or Law im- pairing the Obhgation of Contracts, or grant any Title of Nobility. is not required in this instance, on the ground that enlisted men of the Navy and Marine Corps are not officers of the United States within the constittitional i)r()lubition and the act of 1881 above quoted. The forwarding of the medals to this department for distribution constitutes a delivery thereof so far as the Department of State is concerned." (File 3707, June 15, 1904, holding that the medals may properly be delivered by the Navy Department to the enlisted men for w^hom they were intended. See also, file 9644-27, Jan. 24, 1913.) "No decoration or other tiling, the accept- ance of which is authorized by tlus act, and no decoration heretofore accepted, or which may hereafter be accepted, by consent of Congress, by any officer of the United States, from any foreign government, shall be publicly shown or exposed upon the person of the officer so re- ceiving the same." (Act Jan. 31, 1881, sec. 2, 21 Stat., 604.) "The public wearing of medals presented by foreign governments is not authorized by the Navy Regulations." (File 3707, ,Iune 15, 1904.) Members of the "military forces" of the United States serving in the war with Geimany were permitted and authorized to accept until one year after the war, decorations from certain foreign governments, and "to accept and wear any medal or decoration heretofore bestowed " by any of said governments, by the Army appropriation act approved July 9, 1918 (40 Stat., 872). This statute appUee to the Navy and Marine Corps. (31 Op. Atty. Gen., 445; see also id., 452.) A clerk of class 4 in the Post Office Depart- ment is inhibited by this clause of the Constitu- tion from accepting an insignia conferred by the Gennan Emperor, unless the consent of Con- gress be firat obtained. Section 3 of the act of January 31, 1881 (21 Stat., 604), does not authorize the delivery of decorations unless authority therefor be first obtained by act of Congress. (27 Op. Atty. Gen., 219.) Acceptance by officers and enlisted men of employment and compensation from the gov- ernment of Brazil, the government of Haiti, and the government of the Dominican Re- public, respectively, was authorized October 13, 1914 (38 Stat., 780), June 12, 1916 (39 Stat., 223), and February 11, 1918 (40 Stat., 437). See also act of June 5, 1920 (41 Stat. 1056), applicable to all South American Republics. Obligation of contracts. — "The United States can not, any more than a State, interfere with private rights except for legitimate gov- ernmental purposes. They are not included within the Constitutional prohibition which prevents States from passing laws impaii-ing the obligation of contracts, but equally with the States they are jjrohibited from depriving per- sons or corporations of property without due process of law." (Sinking P'und Cases, 99 U. S., 700.) "It is unnecessary to discuss the question whether Congress has unrestricted power to do what the States can not do in the impairing of 76 Executive Power. Pt. 1. THE CONSTITUTION. Art. II, Sec. 1. contract obligations. It is probable it would be held that in some instances and for some pur- poses it can. Such an instance niight be the enactment of a bankrupt law, which necessarily implies the impairment and even the entire dis- charge of contract obligations. It is not im- probable, however, that an act of Congress which should provide for the repudiation of any sub- stantial part of a valid contract would be ob- noxious to those other provisions of the Federal Constitution which are intended to protect the citizen and his propertv against arbitrary seiz- ure and confiscation." '(22 Op. Atty. Gen., 194.) "Congi'ess has express power to enact bank- rupt laws, and we do not say that a law made in the execution of any other express power, which incidentally only impairs the obligation of a contract, can be held to be unconstitutional for that reason. But we think it clear that those who framed and those who adopted the Consti- tution intended that the spirit of this prohibi- tion should pervade the entire body of legisla- tion * * *. In other words, we can not doubt that a law not made in pursuance of an express power, which necessarily and in its dii-ect operation impairs the obligation of contracts, is inconsistent with the spirit of the Consti- tution." (Hepburn v. Griswold, 8 Wall., 623.) "Nor can it be truly asserted that Congress may not, by its action, indirectly impair the obligation of contracts, if by the expression be meant rendering contracts fruitless or partially fruitless. Directly it may, confessedly by pass- ing a bankrupt act, embracing past as well as future transactions * * *. So it may relieve parties from their apparent obligations indi- rectly, in a multitude of ways. It may de- clare war, or even in peace pass noninter course acts, or direct an embargo." (Kjiox v. Lee, 12 Wall., 457.) [Clause 2. States not to lay imposts or duties, except, etc.] ^No State shall, without the Consent of the Congress, lay any Imposts or Duties on Im- ports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and aU such Laws shall be subject to the Revision and Control of the Congress. [Clause 3. States not to lay tonnage duty, make compacts, engage in war, etc.] ^No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War m time of Peace, enter into any Agree- ment or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. ARTICLE 11. Section 1. [Clause 1. Executive power vested in President; terms of President and Vice-President.] ^ The executive Power shall be vested in a President of the United States of America. He shall hold his OflB.ce during the Term of four Years, and, together with the Vice-President, chosen for the same Term, be elected, as follows: Covirts without power over President. — "The executive power is vested in a President, and as far as his powers are derived from the Constitution he is beyond the reach of any other department, except in the mode pre- scribed by the Constitution, through the im- peaching power." (Kendall v. U. S., 12 Pet., 524.) The courts are not empowered to enjoin the President from executing an act of Congress, even though such act had been vetoed by the President as unconstitutional and had become a law without his approval. ' 'A bill prajdng an injunction against the execution of an act of Congress by the incumbent of the presiden- tial office can not be received, v/hether it described him as President or as a citizen of a State. The motion for leave to file the bill is therefore denied." (Mississippi v. Johnson, 4 Wall., 475.) "A subpoena may issue to the President of the United States to compel his attendance as a witness, and an accused person is entitled to it of course. " (U. S. v. Burr, 25 Fed. Gas. No. 14692c?.) "A subpoena duces tecum may issue to the President of the United States, directing him to bring any paper of which the party praying it has a right to avail himself as testimony." (U. S. V. Burr, 25 Fed. Cas. No. 14692d) "WTiile a subpoena may be directed against the President to produce a paper, or for some other purpose, in case of his refusal to obey the subpoena, the courts would be without power to enforce process. " (25 Op. Atty. Gen., 326.) Subordinate executive oflScers. — "The President's duty in general requires his super- intendence of the administration; yet this duty can not require of him to become the adminis- trative officer of every department and bureau, 77 Art. II, Sec. 1. Pt. 1. THE CONSTITUTION. Executive Power. or to perform in penson the numerous details inddeut to services ^vhioll, nevertheless, he is, in a correct sense, by the (Vinstitution and laws required antl expected to perform This can not be, because if it w ere practicable it ■would be to absoib the duties and responsibilities of the various departments of the Govermnent in the ]>ersonal action of the one chief executive oflicer. It can not be, for the strongest reason, that it is impracticable — nay, impossible." rWilliams v. U. S., 1 How., 290; 10 Op. Atty. Gen., 527.) The heads of the executive departments, familiarly known as Cabinet officers, aid the President "in the i>erformauce of the great duties of his othce and represent him in a thousand acts to ■which it can hardly be sup- Kosed his personal attention is called. " (In re e;\gle, 135 U. 8., 1.) The Constitution does not specify the subor- dinate administrative functionaries by whose agency or counsels the details of public business are to be transacted. It recognizes the exist- ence of such official agents and advisers in .oajdng that the President "may require the opinion, in ■wTiting, of the principal officer of each of the executive departments upon any subject relating to the duties of their respective offices" (Art. II, sec. 2, clause 1); and these officers are again recognized by the Constitu- tion in tlie clause wliich vests the appointment of certain inferior officers "in the heads of departments" (Art. II, sec. 2, clause 2), and it leaves the number and organization of those departments to be determined by Congress. (6 Op. Atty. Gen., 326; see also note to sec. 158, '•The President acts andspeaks through the heads of the departments, and the acts of the head of an executive department must be piesumed to be by the direction of the Presi- dent. If the surrounding circumstances show that the act was that of the Secietary alone, the presumption mav be othenvise." (Weller r. if. S., 41 Ct. Cls.;;324.) So also, where the act to be done is judicial in character, such as the approval of the sentence of a court-martial, the personal judgment of the President is re- quired, and can not be delegated to the head of a department. (Runkle v. U. S., 122 U. S., 543, explained, U. S. v. Fletcher, 148 U. S.,86; Ide V. U. S., 25 Ct. Cls., 407, 150 U. S., 517; see also note to sec. 158, B. S.) The order of the Secretary of War is the order of the President, -within the terms of a statute providing that certain officers of the Army should not perform any duties bejond the line of their immediate profession "except by the special order of the President." (9 Op. Atty. Gen., 465.) "By the Constitution of the United States the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties he is authorized to appoint certain officers who act by his au- thority and in conformity with his orders. In eucl) cases their acts are his acts; and whatever opinion may be entertained of the manner in ■which executive discretion may be used, still there exists and can exist no power to control that discretion. The subjects are political. They re.<*pect the Nation, not individual rights, and, being intrusted to the executive, the de- cision of the executive is conclusive. The application of this remark will be perceived by adverting to tlie act of Congiess for establishing the Department of Foreign Affairs [now De- partment of State]. This officerj as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is to be com- municated. The acts of such an officer, as an officer, can never be examined by the courts." (Marbury v. Madison, 1 Cranch, 137.) "It is the general theory of departmental administration that the heads of the executive departments are the executors of the will of the President." (10 Op. Atty. Gen., 527.) "There are certain political duties imposed upon many officers in the executive depart- ment, the discharge of wliich is uuder the direc- tion of the President. But it would be an alarming doctrine that Congress can not impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitu- tion; and in such cases the duty and responsi- bility grow out of and are subject to the control of law and not the dii-ection of the President. And tliis is emphatically the case where the duty enjoined is of a mere ministerial cliar- acter." (Kendall v. U. S., 12 Pet., 524.) Legal responsibility of execu'tive offi- cers. — "If one of the heads of departments commits any illegal act, uuder color of office, by which an individual sustains an injury, it can not be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding and being compelled to obey the judgment of the law." (Marbury v. Madison, 1 Cranch, 137.) "The same general considerations of public policy and convenience which demand for judges of courts of superior jurisdiction immu- nity from ci^•il suits for damages arising from acts done by them in the course of the perform- ance of their j udicial functions apply to a large extent to official communications made by heads of executive departments Avhen engaged in the discharge of duties imposed upon them by law. The interests of the people require that due protection be accorded to them in respect of their official acts. As in the case of a judicial officer, we recognize a distinction be- tween action taken by the head of a department in reference to matters which are manifestly or palpably beyond his authority and action hav- ing more or less connection -with the general matters committed by law to his control or super- vision. * * * Personal motives can not be imputed to duly authorized official conduct. In exercising the functions of his office the head of an executive department keeping within the limits of his authority should not be under an ap- prehension that the motiA'es that control his offi- cial conduct may at any time become the sub- ject of inquiry in a civil suit for damages." (Spalding v. Vilas, 161 U. S., 483.) "A public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one but is one 78 Election of President. Pt. 1. THE CONSTITUTION. Art. II, Sec. 1. in relation to which it is his duty to exercise judgment and discretion, even although an indi- vidual may suffer by liis mistake. A contrary principle would, indeed, be pregnant witli the greatest mischiefs." (Kendall v. Stokes, 3 How., 87. See also note to Art. I., sec. 8, clause 13, "Civil responsibility of persons in military service.") Liability of Govemment for acts of executive oflicers. — "No govemment has ever held itself liable to iiidi\iduals for the mis- feasance, laches, or unauthorized exercise of power by its officers and agents. It does not undertake to guarantee to any person the fidel- ity of the officers whom it employs, since that would involve it in all its operations in endless embarrassments and difficulties and losses which would be subversive of the public inter- ests." (Gibbons v. U. S.,- 8 Wall., 269. See note to sec. 236, R. S.; see also note to Art. I, sec. 8, clause 13, " Congress may protect officers against civil or criminal responsibility.") Mandamus against heads of depart- ments. — ' ' 1 1 is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropri- ety of issuing a mandamus is to be determined. Where the head of a department acts in a case in which executive discretion is to be exercised, in which he is the mere organ of the executive will, it is again repeated that any application to a court to control in any respect his conduct would be rejected without hesitation. But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which h( is not placed under the particular direction of the President and the perfonnance of which the President can not law- fully forbid, and therefore is never presumed to have forbidden, as, for example, to record a com- mission or a patent for land which has received all the legal solemnities, or to give a copy of some record ; in such cases it is not perceived on what grounds the courts of the country are fur- ther excused from giving judgment that right be done to an injured individual than if the same services were to be performed by a person not the head of a department. ' ' (Marbury v. Madi- son, 1 Crench, 137. See also Gaines v. Thomp- son, 7 Wall., 347; Kendall v. U. S., 12 Pet., 524; U. S. V. Schurz, 102 U. S., 378; Georgia -y. Stan- ton, 6 Wall., 50; Riverside Oil Co. v. Hitchcock, 190 U. S., 316; Bates, etc., Co. v. Payne, 194 U. S., 106; Marquez v. Frisbie, 101 U. S., 473; U. S. V. Black, 128 U. S., 40; U. S. v. Windom, 137 U. S.,636; Boyntoni;. Blaine, 139U. S., 306; Dudley v. James, 83 Fed. Rep., 349; Taylor v. Kercheval, 82 Fed. Rep., 497; Brown v. Root, 18 App. D. C, 239. And see note to sec. 236, R. S., "Mandamus to compel pajTnents" and note to sec. 417, R. S.) A State court has no power to issue a writ of mandamus to a Federal officer. (See McClung V. Silliman, 6 Wheat., 598; Kendall v. U. S., 12 Pet., 524; U. S. v. Schurz, 102 U. S., 378.) Where a subordinate officer refuses to obey the order of the head of a department, any per- son aggrieved thereby may obtain a mandamus to enforce obedience by such subordinate. (U. S. V. Black, 128 U. S., 50; see also Knight y. U. S. Land Assn., 142 U. S., 161.) Subpoena to head of department. — • In the absence of specilic authority on the sub- ject, I am inclined to think that you are not legally bound to appear and testify in obedience to a subpoena of a court. This question, how- ever, does not actually arise upon the facts which you submit, and is therefore at present hjTJothetical. Yet it is to be remembered that Attorney General Lincoln saw fit to respond to a subpoena to testify as a witness by appearance in court for that purpose. I would suggest that in this instance, inaFmuch as it is purposed to take the testimony by commission, and you are thus not reqtiired to appear in court, but before a referee or commissioner, an arrangement might readily be made which would better comport with the dignity of your office, as the head of an executive department of the Government, whereby such testimony as you should deem proper and advisable to give could be taken at the Department of Commerce and Labor. ' ' (25 Op. Atty. Gen., 326. In this connection, see file 26276-173, May 12, 1917, and see note to sec. 871, R. S.) Appeals to President and heads of de- partments. — It is competent for Congress to give linality to the determination of subordinate administrative officers, provided due process of law, that is, notice and a hearing, is provided. (Orchard v. Alexander, 157 U. S., 372.) Where Congress does not do this, the head of a depart- ment may change the erroneous decision of a subordinate (U. S. v. Cobb, 11 Fed. Rep., 76); and appeals may be taken to the head of the department because of his supervisory powers over the whole business of the department. (Knight t'. L . S. Land Assn., 142 U. S., 161.) In such cases the appeal should be to the head of the department and not to the President. (10 Op. Atty. Gen., 526.) As a general rule, no appeal lies to the Presi- dent from the head of a department, whose acts are presumed to be the acts of the President himself. (9 Op. Atty. Gen., 462.) However, in the naval service appeals may be taken to the President from the orders or decisions of the Secretary of the Navy. (Art. 5323, Naval In- etnictions, 1913.) *' You have often declared that no appeal from the head of any department lies to you. Such appeals ai*e irregular, for reasons which have often been given by this office and which need not now be repeated. An official act done by the Secretary of War is your act, and a demand made upon you to reverse it is no more than a remonstrance addressed to yourself against yourself. ' ' (Attorney General to the President, 9 Op. Atty. Gen., 463.) [Clause 2. Electors of President and Vice-President.] - Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Represent- 79 Art. II, Sec. 1. Pt. 1. THE CONSTITUTION. Compensation of President. ative, or Person holding an Office of Trust or Profit under the United States, shall bo appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of aU the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be comited. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by BaUot one of them for Presi- dent; and if no Person have a Majority, then from the five highest on the List the said House shaU in fike Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State havmg one Vote; A quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of aU the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remam two or more who have equal Votes, the Senate shall chuse from them by BaUot the Vice-President. This clause has been superseded by the twelfth amendment. [Clause 3. Time of choosing electors, and voting by.] ^ The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. [Clause 4. Qualifications of President.] * No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States. [Clause 5. Succession to duties of Presidency.] ^ In Case of the Removal of the President from Office, or of his Death, Resignation, or Inabihty to dis- charge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disabihty be removed, or a President shall be elected. Succession to duties of President is provided for by act of January 19, 1886 (24 Stat., 1). [Clause 6. Compensation of President.] ' The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be en- creased nor diminished during the Period for which he shall have been elected, and he shall not receive withm that Period any other Emolument from the United States, or any of them. 80 Coininander in Chief. Pt. 1. THE CONSTITUTION. Art. II, Sec. 2. [Clause 7. Oath of President.] ^ Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — "I do solenmly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Section 2. [Clause 1. Commander in Chief; authority over heads of departments ; pardoning power.] ^ The President shall be Commander in Chief of the Army and Navy of the United States, and of the IVIilitia of the several States, when called into the actual Service of the United States; he may require the Opinion, m wi-iting, of the principal Officer in each of the executive Depart- ments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. I. Powers of Commander in Chief. II. Executive Departments. III. Power to Pardon Offenses Against United States. I. Powers of Commander in Chief. Powers of Congress and of the Presi- dent. — "CongreBS has the power not only to raise and support and govern armies, but to declare war. It has, therefore, the power to provide by law for carr^dng on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of cam- paigns. That power and duty belong to the President as Commander in Chief. _ Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature and by the principles of our institutions. The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authority essential to its due exercise. But neither can the Presi- dent in war more than in peace intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law." (Ex parte Milligan, 4 Wall. , 139 ; concurring opinion of four justices.) "Congress may increase the Army, or reduce the Army, or abolish it altogether; but so long as we have a military force, Congress can not take away from the President the supreme com- mand. It is true that the Constitution has con- ferred upon Congress the exclusive power 'to make rules for the government and regulation of the land and naval forces'; but the two powers are distinct; neither can trench upon the other; the President can not, under the disguise of military orders, invade the legislative regulations by which he, in conmion with the Army, must be governed; and Congress cannot, in the disguise of 'rules for the government' of the Army, impair the authority of the President as Commander in Chief." (Swaim v. U. S., 28 Ct. Cls., 173, 221; affirmed, 165 U. S., 553; 28 Op. Atty. Gen., 274. "No act of Congress, no act even of the Presi- dent himself, can, by constitutional possibility, authorize or create any military officer not sub- ordinate to the President." (7 Op. Atty. Gen., 465.) An appropriation under the War Department was made "to be expended according to the plans and estimates of Capt. Meigs and under his superintendence: Provided, That the office of engineer of the Potomac waterworks is hereby abolished, and its duties shall hereafter be dis- charged by the chief engineer of the Washington Aqueduct." In answer to the contention that this appropriation was mandatory upon the President as to the character of duties to be performed by Capt. Meigs in connection with its expenditure, the Attorney General said: "As Commander in Chief of the Army it is your right to decide, according to your own judg- ment, what officer shall perform any particular duty, and as the supreme executive magistrate you have power of appointment. Congress could not, if it would, takeaway from the Presi- dent or in anywise diminish the authority con- ferred upon him by the Constitution. This clause of the appropriation bill was not intended to appoint Capt. Meigs chief engineer of the aqueduct, nor was it meant to interfere with your authority over him or any other of your military subordinates. * * * If Congress had really intended to make him independent of you, that purpose could not be accomplished in this indirect manner any more than if it was attempted directly. Congress is vested with legislative power; the authority of the Presi- dent is executive. Neither has a right to inter- fere with the functions of the other. Every law is to be carried out so far forth as is consistent with the Constitution and no further. * * * You are therefore entirely justified in treating this condition (if it be a condition) as if the paper on which it is written were blank." (9 Op. Atty. Gen., 462.) "The first aspect in which this clause [see preceding paragraph] presented itself to my mind was that it interfered with the right of the President to be 'Commander in Chief of the Army and NaA-y of the United States.' If this had really been the case there would have been an end to the question. Upon further examina- 81 Art. II, Sec. 2. Pt. 1. THE CONSTITUTION. Commander in Chief. tion I deemed it impossible that Oongresa could have uitoiuled to interfere with the clour rij^ht of the Prosidojit to command tlio Army and to order its officers to any duty he might deem most expedient for the public interest. If they could withdraw an officer from the command of the President and select him for the performance of an executive duty, they miglit upon tlie same principle annex to an appropriation to carry on a war a condition requiring it not to be u.sod for the defense of the country unless a particular person of its own selection should command tlie Army. It was impossible that (\ingross could have had sucli an intention, aaid therefore, according to my construction of the clause in question, it merely designated Capt. Meigs as its preference for the work, without intending to deprive the President of the power to order him to any other Army duty for the performance of which he might consider him better adapted. * * * Under these circumstances I have deemed it but fair to inform Congress that whilst I do not consider the bill unconstitu- tional, this is only because, in my opinion, Congress did not intend by the kuiguage which they have employed to interfere ^vith my abso- lute authority to order Capt. Meigs to any other service I might deem expedient. My perfect right still remains, notwithstanding the clause, to send him away from Wafihington to any part of the Union to superintend the erection of a fortification or any other appropriate duty. * * * It ia not improbable that another question of grave importance may arise out of this clause. Is tlie appropriation conditional and will it fall pro^-ided I do not deem it proper that it shall be expended under the superin- tendence of ('apt. Meigs? * ■* * I desire to express no opinion upon the subject. Should the question ever arise, it shall have my serious consideration." (Messages and Papers of the Presidents, vol. 5, p. 597. As to invalidity of the condition in this case, see Attorney General's opinion quoted in preceding paragraph.) An appropriation was made for the support and maintenance of the Marine Corps, with a condition attached that "no part of the appro- priation herein made for the Marine Corps shall be expended for the purposes for which said appropriations are made unless officers and enUsted men shall serve as heretofore on board all battleships and armored cruisers, and also upon such other vessels of the Navy as the Presi- dent may direct, in detachments of not less than eight per centum of the strength of the enlisted men of the Navy on said vessels." It was held by the Attorney General [without citing autlioritics] that the condition attached to this appiopriation was valid and constitu- tional, and tliat if the President as Commander in Chief desired to employ the Marine Corps he must comply with the condition expressed. "Inasmuch as Congress has power to create or not to create, as it sliall deem expedient, a marine corps, it has power to create a marine corps, make appropriation for its pay, but pro- vide that such appropriation shall not be avail- able unless the Alanne Corps be employed in some designated way." (27 Op. Atty. Gen., 259.) When Congress created the office of adjutant and inspector of the Marine Corps, without speci- fying its duties or where they should be per- formed, it was intended that the office should l)e clothed witii tlie functions and duties which by established cuotom had been performed by such lui officer in a miliUiry 8er\ace. The duties of an adjutant are such as rerjuire that they be performed at head(|uarters of his organization. Accordingly, a regulation approved by tlie President, purporting to authorize or permit the detail of the adjutant and inspector of the Marine Corps to duty away from headquarters, ajid placing the office at headquarters in charge of a subordinate officer of the adjutant and inspector's department, is contrary' to law and of no effect. The President may have the right to detail this officer temporarily away from head- quarters, but this can not be established as a permanent system. (30 Op. Atty. Gen., 234.) fin this case it had previously been held by the Navy Department tiiat the law did not specify that the adjutant and inspector of the Marine Corps should be permanently stationed at headquarters; and, follo\\Txig the Meigs case and others above cited, that Congress was not em- powered to limit the authority of the President m this respect; and accordingly that the matter was properly a subject for regulation by the President. File 26836-7:35, Feb. 13, 1913.] "It ia * * * no degradation of the posi- tion of the President to say, through the forms of judicial construction in passing on his execu- tive acts with reference to the retired list, that his power is regulated alone by acts of Congress * * *. The retired list is of comparatively recent origin; and for years the Army endured through peace and survived in war, efficient in the hands of the President for the maintenance of the national honor, and the due enforcement of the law, without the existence of the retired list, 80 the regulation of that department of the service can in no wise interfere with the con- stitutional right and power of the President as Commander in Chief of the military forces of the United States. Wliile the President is made Commander in Chief by the Constitution, Congress have the right to legislate for the Army, not impairing his efficiency as such commander in chief, and when a law is passed for the regu- lation of the Army, having that constitutional qualification, he becomes as to that law an executive officer, and is limited in the discharge of his duty by the statute. " (McBlair v. U. S., 19 Ct. Cls., 540, 541.) "The power of the Executive to establish rules and regulations for the government of the Army, is undoubted." (U. S. v. EUason, 16 Pet., 291.) Army regulations have the force of law "when founded on the President's constitu- tional powers as Commander in Chief of the Army.'"' (In re Smith, 23 Ct. Cls., 459.) For other cases, see Article I, section 8, clause 14; see also note to sections 161 and 1547, Revised Statutes. Power of President over subordinates. — "A military ofiicer can not be invested with greater authority by Congress than the Com- mander in Chief, and a power of command deA'olved by statute on an officer of the Army or Na\'y ia necessarily shared by the President. The power to command depends upon disci- pline and discipline depends upon the power to 82 Pardoning Power. Pt. 1. THE CONSTITUTION. Art. II, Sec. 2. punish; and the power to punish can only be exercised in time of peace through the medium of a military tribunal. If the President has no authority in matters pertaining to military tribunals unless it be 'expressly' granted by Congress, then Congress by the simple expedi- ent of exclusively granting the authority to appoint courts-martial and approve sentences to a few officers of the Army, tacitly ignoring the President, could practically defeat the express declaration of the Constitution and strip the office of commander in cliief of all real powers of command. The court can not ascribe any such purpose to the legislation of Congress." (Swaim v. U. S., 28 Ct. Cls., 173, 221; affirmed 165 U. S., 553; followed 28 Op. Atty. Gen., 487.) "As Commander in Chief the President is authorized to give orders to his subordinates, and the convening of a court-martial is simply the giving of an order to certain officers to as- semble as a court, and when so assembled, to exercise certain powers conferred upon them by the Articles of War. " (Runkle's case, 91 Ct. Cls., 396, 409, approved in Swaim v. U. S., 165 U. S., 553, 556, holding that "it is within the power of the President as Commander in Chief to convene a general court-martial, " in the Army. In the Navy the President is ex- pressly authorized by statute to convene gen- eral courts- martial. Sec. 1624 R. S., art. 38.- "It is said that courts-martial are the crea- tures of statute law, but so also are regiments. There can be no standing army without statu- tory authority. Congress may place the com- mand of a regiment in a colonel, a lieutenant colonel, a major, or any other officer; but when Congress so enact, they without words to that effect Likewise place the command in the Com- mander in Cliief. His name is to be understood as written in every statute which confers upon a military officer military authority. " (Swaim V. U. S., 28 Ct. Cls., 173, 224; affirmed 165 U. S., 553.) An order of the Secretary of War to an officer of the Army is the order of the President and should be obeyed as such. An appeal from such order to the President is no more than a remonstrance addressed to the President against hiniself. (9 Op. Atty. Gen., 463, 465. For other decisions, see note to Art. II, sec. 1, clause 1; see also note to sec. 158, R. S.) Militia. — The President is the Commander in Chief of the Army and Navy at all times, and Commander in Chief of the militia only when called into the actual service of the United States. (Johnson v. Sayre, 158 U. S., 115; 10 Op. Atty. Gen., 17.) II. Executive Departments. The "principal ofla.cer in each of the executive departments," referred to in this clause means the same as "heads of depart- ments" in the next clause of this section relat- ing to appointments to office. (U. S. v. Ger- maine, 99 U. S., 511.) See note to section 158, Revised Statutes, as to origin and growth of Executive Departments, and see note to Art. II, sec. 1, clause 1. The President is authorized by this section to require the opinion of the Attorney General in any matter relating to the duties of his department, and his authority in this respect is not restricted by section 354, Revised Statutes, to obtaining the Attorney General's opinion only upon questions of law. (23 Op. Atty. Gen., 360.) The President has also required the opinion in writing of officers subordinate to the head of a department. (See veto message of President Roosevelt, Apr. 7, 1908, 42d Cong. Rec, pt. 5, p. 4503, 60th Cong., 1st sess., noted under Art. I, sec. 7, clause 2, with which there was trans- mitted a written opinion furnished by the Chief of the Bureau of Navigation, Navy Department, by direction of the President.) III. Power to Pardon Offenses Against United States. "A pardon is an act of gfrace by which an offender is released from the consequences of his offense, so far as such release is practicable and within control of the pardoning power, or of officers under its direction. It releases the offender from all disabilities imposed by the offense, and restores to him all his civil rights. In contemplation of law, it so far blots out the offense that afterwards it can not be imputed to him to prevent the assertion of his legal rights. It gives to him a new credit and capac- ity, and rehabilitates him to that extent in his former position. But it does not make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or other- wise; it does not give compensation for what has been done or suffered, nor does it impose upon the Govermnent any obligation to give it. Tne offense being established by judicial pro- ceedings, that which has been done or suffei'ed while they were in force is presumed to have been rightfully done or justly suffered, and no satisfaction for it can be required." (Knote v. U. S., 95 U. S., 149; Illinois Cen. R. Co. v. Boa- worth, 133 U. S., 104.) Pardoning power. — "A power to pardon seems, indeed, indispensable under the most correct administration of the law by human tribunals. Since, otherwise, men would some- times fall a prey to the vindictiveness of accu- sers, the inaccuracy of testimony, and the fal- libility of jurors and courts." (1 Kent, Com., Lee. XIII, p. 284.) "Under the Constitution the power of the President to grant reprieves and pardons is plenary^ absolute, and without limit or control as to the offense, the beneficiany^, the time, or the nature or extent of his pardon." (27 Op. Atty. Gen., 178.) "The power of pardon in criminal cases has been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance. We adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail him-self of it." (U. S. V. Wilson, 7 Pet., 160, per Mar- shall, C. J.; see also. Ex parte Wells, 18 How., 307; Burdick v. U. S., 236 U. S., 79.) 83 Art. II, Sec. 2. n. 1. THE CONSTITUTION. Pardoning Powei This clause confers upon the President the power to pardon every offense known to the law, with the single exception stated (Ex parte Garland, 4 Wall., 333; Ex parte Wells, 18 How., 309) ; that exception, accordin;^ to a well-known les^al maxim ['cxprestio unius est exclusio alterius,"' — the expression of one thing is the exclusion of another], slrenjrthens the applica- tion of the provision to all offenses not excepted, "so that we can certainly say there can be no offense against the United States, except in cases of impeachment, over which the Presi- dent has not an absolute pardoning power." (U. S. I'. Thomasson, 28 Fed. Caa. No. 16479.) Contempt of court. — Contempts of the Federal courts are offenses against the United States, and therefore within the pardoning power of the President. "If we adopt, as the Supreme Court of the United States has decided we should, the principles established by the common law respecting the operation of a par- don, there can be no doubt it may embrace such a case." (3 Op. Attv. Gen., 622; 4 Op. Atty. Gen., 458; In re Mullee, 17 Fed. Cas. No. 9911 .) So far as concerns the President's power to pardon such contempts, "there need be no he.''itation to act in the premises. Indeed, I know beyond question that the power exists." (19 Op. Atty. Gen., 476.) The power of the President to pardon for contempt of court is seriously doubted in any case, and upon principle and authority can not be held to exist in cases of civil contempt, where the proceeding is instituted to enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the reme- dies to which the coiirt has found them entitled. (In re Nevitt, 117 Fed. Rep., 448; see also Hendryx v. Fitzpatrick, 19 Fed. Rep., 811.) [The Supreme Court has never passed defi- nitely on the existence of the pardoning power in cases of contempt of court. In the case of The Laura, 114 U. S., 411, 413, it was stated: "It may be conceded that, except in cases of impeachment and where fines are imposed by a coordinate departinent of the Governmeat, for con- tempt of its authority, the President, under the general, unqualified grant of power to pardon offenses against the United States, may remit fines, penalties, and forfeitiu-es of every descrip- tion arising under the laws of the United States." In Ex parte Fisk, 113 U.S. ,713, 718, after hold- ing that under the laws then i n force, ' ' the exer- cise of the power of punishment for contempt of their orders by courts of general jurisdiction is not subject to review by writ of error or appeal to this court," it was remarked: "Nor is there, in the system of Federal jurisprudence, any relief against such orders when the court has authority to make them, except through the court making the order, or possibly by the exer- cise of the pardoning power. ^^^ General courts-martial in the Navy are au- thorized to punish naval witnesses for contempt by article 42 of the Articles for the Govermnent of theNaA^- (sec. 1624, R. S.); civilian witnesses guilty of contempt are punishable by informa- tion in the district court of the United States, which information it is the duty of the districi attorney to file upon certification of the facts to him by the naval court. (Act Feb. 16. 1909 sec. 12, 35 Stat., 622.) When pardon may be granted. — The President "can pardon or reprieve only when an offense against tlie law has been established by proof or the admissions of the party, and a penalty thereby incurred." (2 Op. Atty. Gen. „ 485; see also Burdick v. U. S., 236 U. S., 79, in which this question was discussed but not de- cided.) The power to pai'don any offense "may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." (Ex parte Garland, 4 Wall., 333; see also 60p. Atty. Gen., 20; 5 Op. Atty. Gen., 687; 2 Op. Atty. Gen., 275; 1 Op. Atty. Gen.,341; compare Burdick v. U. S., 236 U. S., 79.) The Navy Department has adopted the rule formulated by the Department of Justice and approved by the President, of declining to recommend the issuance of a pardon in any case prior to conviction. (File 26282-84; Mar. 27, 1912; see also file 26262-1344:5; but see file 26282-85, Apr. 8, 1912.) In cases of enlisted men convicted of deser- tion from the naval service, the rule was adopted by the Navy Department of recommending that a pardon be issued, for the purpose of restoring rights of citizenship forfeited under sections 1996 _ and 1998, Revised Statutes, where the applicant had served sentence for the offense, and then only after two years from date of dis- charge from prison and provided the applicant produces satisfactory affidavits to the effect that he has lived an upright and industrious life since the date of his discharge. (File 26282-84; loss of the rights of citizenship do not now fol- low upon conviction of desertion except in time of war. Act Aug. 22, 1912, 37 Stat., 356.) ^\^lere a naval prisoner has sers^ed sentence for an offense other than desertion, the Navy Department will not recommend that he be pardoned, as loss of the rights of citizenship does not attach in his case. (File 26282-214, Mar. 18, 1915. See also, 1 Op. Atty. Gen., 359; 23 Op. Atty. Gen., 360. As to conclusiveness of finding of court-martial, see note to Art. I, sec. 7, clause 2, "Veto of bill to annul the finding and sentence of a court-martial.") The President may exercise his pardoning power at any time, so long as any of the legal consequences of the offense remain. (Stetler's case, 22 Fed. Cas. No. 13380.) Thus, loss of rmmbers being a continuing punishment, the President may, by pardon, restore the officer to his original position. (12 Op. Atty. Gen., 547; 17 Op. Atty. Gen., 656; see also 20 Op. Atty. Gen., 243. And see 17 Op. Atty. Gen. 31, file 26261-246:1, Mar. 18, 1914, and 26262-1794:1.) But the promotion of an officer completely ex- ecutes a sentence of loss of numbers and a pardon issued thereafter can not restore him to his original position. (File 26261-246:1, Mar. 18, 1914; 26262-1794:1, Dec. 21, 1916. But see contra file 1208, Mar. 31, 1905, case of Maj. James E. Mahoney. See also 4 Op. Atty. Gen., 84 Pardoning Power. Pt. 1. THE CONSTITUTION. Art. II, Sec. 2. 8, and 31 Op. Atty. Gen., 419, as to effect of promotion upon sentence of suspension from rank and pay . ) "I have already, in the exercise of the par- doning power with which the President is vested by the Constitution, remitted the con- tinuing penalty which had made it impossible for Fitz John Porter to hold any office of trust or profit under the Government of the United States." (Veto message of President Arthur, July 2, 1884, noted under Art. I, sec. 7, clause 2.) When the sentence of a court has been served, a pardon may be granted to remove the dis- ability of the offender to testify as a witness which followed upon conviction of felony . (U . S. V. Jones, 26 Fed. Cas. No. 15493; Boyd v. V. S.,142U. S.,453.) After death of a deserter a pardon can not be issued at request of his representatives. (File 3846-98, June 10, 1898.) "This power of the President is not sub- ject to legislative control. Congress can neither limit the effect of his pardon, nor ex- clude from its exercise any class of offenders. The benign prerogative of mercy reposed in him can not be fettered by any legislative restrictions." (Ex parte Garland, 4 Wall., 333. See also, U. S. v. Klein, 13 Wall., 147; 5 Op. Atty. Gen., 582; 8 Op. Atty. Gen., 281; 20 Op. Atty. Gen., 668; 22 Op. Atty. Gen., 39; 23 Op. Atty. Gen., 360. But see act Aug. 22, 1912, 37 Stat., 356, which provided that "the loss of rights of citizenship heretofore imposed by law upon deserters from the military or naval serv- ice may be mitigated or remitted by the Presi- dent where the offense was committed in time of peace and where the exercise of such clemency will not be prejudicial to the public interests.") The power of the President "can not be in- terrupted, abridged, or limited by any legisla- tive enactment. "_ (The Laura, 114 U ." S . , 411 . ) "It is not within the power of Congress to im- pose or continue in force a penalty or punish- ment for an offense, or conviction thereof, that has been thus pardoned, nor impose or con- tinue in force disabilities that have been thus removed." (27 Op. Atty. Gen., 178.) Power of Congress. — "Although the Con- stitution vests in the President power to grant reprieves and pardons for offenses against the United States, this power has never been held to take from Congress the power to pass acta of general amnesty." (Brown v. Walker, 161 U. S., 591.) Power of other ofilcers. — "Is that power [pardoning power of President] exclusive, in the sense that no other officer can remit for- feitures or penalties incurred for the violation of the laws of the United States? This question can not be answered in the affirmative without adjudging that the practice in reference to re- missions by the Secretary of the Treasury and other officers, which has been observed and acquiesced in for nearly a century, is forbidden by the Constitution. That practice com- menced very shortly after the adoption of the instrurnent, and was perhaps suggested by legis- lation in England, which, without interfering with, abridging, or restricting the power of pardon belonging to the Grown, invested certain subordinate officers with authority to remit penalties and forfeitures arising from violations of the revenue and customs laws of that country." (The Laura, 114 U. S.,411; seealso 6 0p. Atty. Gen., 488.) The powers of the President are not as broad as the powers of an English king. By the Con- stitution "the power to grant reprieves and pardons is given, in terms, to the President; but the power to remit forfeitures, fines, and penalties (as distinct from the pardon of crimes) is not given. Yet the king had both powers." (10 Op. Atty. Gen., 454. But see The Laura, 114 U. S., 411, in which it wasstated: "Itmay be conceded that, except in cases of impeach- ment and where fines are imposed by a coordi- nate department of the Government for con- tempt of its authority, the President, under the general unqualified grant of power to pardon offenses against the United States, may remit fines, penalties, and forfeitures of every descrip- tion arising under the laws of Congress.") Article 112 of the Articles of War (sec. 1342, R. S.) provided, with reference to the Army, that "Every officer who is authorized to order a general court-martial shall have power to pardon or mitigate any punishment adjudged by it, ex- cept the punishment of death or of dismissal of an officer. Every officer commanding a regi- ment or garrison in which a regimental or gar- rison court-martial may be held, shall have power to pardon or mitigate any punishment which such court may adjudge." (This article of war has been superseded by act of Aug. 29, 1916, 39 Stat., 658, amending sec. 1342, R. S., arts 50-53, which latter act was amended by act of July 9, 1918, 40 Stat., 882, 883. See 1 Op. Atty. Gen., 327; 4 Op. Atty. Gen., 444; 6 Op. Atty. Gen., 124, 125; 19 Op. Atty. Gen., 106; 17 Op. Atty. Gen., 656; see also People -z;. Bowen, 43Cal.,441.) By article 54 of the Articles for the Govern- mentof the Navy (sec. 1624, R. S.) it is provided that "Every officer who is authorized to convene a general court-martial shall have power, on re- vision of its proceedings, to remit or mitigate, but not to commute, the sentence of any such court which he is authorized to approve and con- firm." (See 20 Op. Atty. Gen., 243; 15 Op. Atty. Gen., 175; 17 Op. Atty. Gen., 31; 10 Op. Atty. Gen., 64; 17 Comp. Dec, 311; 13 Comp. Dec, 726; see also art. 33, A. G. N., as to sen- tences of summary courts-martial.) It may be questioned whether section 1624, Revised Statutes, article 54, applies to the action of the President. (Mullan v. U. S., 212 U.S., 516.) "It may be conceded that there is a technical difference between the commutation of a sen- tence and the mitigation thereof. The first is a change of a punishment to which a person has been condemned into one less severe, substitut- ing a less for a greater punishment by authority of law. To mitigate a sentence is to reduce or lessen the amount of the penalty or punish- ment." (Mullan V. U. S., 212 U. S., 516.) By act of February 16, 1909 (sec. 9, 35 Stat. 621), it is provided "That the Secretary of the Navy may set aside the proceedings or remit or mitigate, in whole or in part, the sentence im- posed by any naval court-martial convened by 85 Art. II, Sec. 2. Pt. 1. THE CONSTITUTION. Pardoning Power. his order or by that of any officer of the Xavy or Marine Corps." The Adjutant General of the Army has power, "by direction of the President of the United States," to si<;n a letter removing the disabili- ties resulting from the conviction of an ofiicer, which letter will operate as a pardon by the President. (27 Op. Atty. Gen. 178: see below "Form of pardon." l Constructive pardon. — ^The promotion of an oliicer of tlie Marine Corps is a constructive pardon of a pre\dous sentence pronounced but not execufecl. (6 Op. Atty. Gen., 123.) Simi- larly, as to the promotion of an officer under arrest on charges. [4 Op. Atty. Gen., 124; 8 Op. Atty. Gen., 237.) The promotion of a passed midsliipman to the office of lieutenant in the Navy, 18 an implicit pardon of sentence of sus- pension on half pay which he was under. (4 Op. Atty. Gen., 8.) So also as to the appointment of a convicted deserter as a commissioned officer intheNavy. (File 5460-82, June 3, 191G). But where steps have been taken with a view to the promotion of an officer, before the promotion is consummated he may be tried by court-mar- tial for offenses previously committed. (G. C. M. records, Nos. 23553, 26451, 28681 , and 28798). And where an officer was nominated and con- firmed for advancement in rank, after he has been recommended for trial by court-martial, but the commission was not signed by the President, the necessary steps for his trial were proceeded with until stayed by the acceptance of said officer's resignation "for the good of the servdce." (File 26251-2833, Mar. 31, 1910.) An order of the Secretary of the Navy to an officer, while under sentence of suspension, to attend a court-martial as a witness does not operate as a constructive pardon. (6 Op. Atty. Gen. , 714.) Nor does the restoration of an accused person to duty wdthout trial. Inas- much as the Secretary of the Navy has no power to expressly pardon any offense — this being a power vested by the Constitution in the Presi- dent, wliich can not be delegated— it follows that no action of the Secretary could amount to a constructive pardon. (File 26251-1963:1, Aug. 17, 1910, p. 13.) A pardon by implication or construction is a thing not known to or recognized by the law. Accordingly, held that the temporary promotion of an officer of the Navy while under charges awaiting trial by general court-martial does not operate as a constructive pardon of the offenses charged against him. As to effect of perma- nent promotion upon execution of a sentence imposed in a lower grade, quaere. (31 Op. Atty. Gen. 419, overruling opinions of Attorneys General above cited relating to constructive pardons.) Conditional pardon. — The power of the President to grant conditional pardons is unquestioned, and is commonly exercised in practice. (See 1 Op. Atty. Gen., 482; 11 Op. Atty. Gen., 229; Waring -y. U. S., 7 Ct. Cls., 502; In re Ruhl, 20 Fed. Cas. No. 12124; U. S. v. Ground, 27 Fed. Cas. No. 16299; U. S. v. Klein, 13 Wall., 142; U. S. v. Wilson, 7 Pet., 161; Semmes v. U. S., 91 U. S., 21; see also 5 Op. Atty. Gen., 368; 14 Op. Atty. Gen., 124.) Thus, a pardon has been granted to an enlisted man in the Marine Corps on condition that he reenlist. (Case of John L. Lennon, file 5945-19; see also file 3000-1898.) So also, an ofiicer of the Navy, sentenced to loss of num- bers, has been pardoned on condition that he take rank in a specified place in his grade, below his original position. (File 26282-26.) "When a person convicted of murder accepts a 'commutation of sentence or pardon' upon condition that he be imprisoned at hard labor for the term of his natural life, there can be no question as to the binding force of the accept- ance." (In re lloss, 140 U. S., 453.) Partial pardon. — The President may by pardon remit disalnlities resulting from convic- tion, without pardoning the offense. Tluis he may issue pardons to deserters for the purpose of restoring their rights of citizenship (14 Op. Atty. Gen., 124), and such pardons have been frequently granted in practice (file 26282; Report of Judge Advocate General to Presi- dent's Commission on Economy and Efficiency, Nov. 28, 1910, file 28067; see also 3 Op. Atty. Gen., 418; 11 Op. Atty. Gen., 227; U. S. v. Lukins, 26 Fed. Cas. No. 15638), and he may mitigate a sentence of dismissal in the case of an officer of the Navy to suspension for a term of years without pay. (4 Op. Atty. Gen., 433: 15 Op. Attv. Gen., 464; Mullan v. U. S., 212 U. S., 516.) General pardon and amnesty. — The Presi- dent has power to grant general amnesty by proclamation, without legislative authority. (Armstrong v. U. S., 13 Wall., 154; 20 Op. Atty. Gen., 330.) "Amnesty" is usually exercised in favor of classes of persons prior to conviction. (Brown v. Walker, 161 U. S., 601.) A general pardon and amnesty, made by a public proclamation of the President, has the force of public law, and courts and officers must take notice of it, whether especially called to their attention or not. (Jenlans v. Collard, 145 U. S.. 560.) In this respect, a general pardon is to be distinguished from an individual par- don, which is the private, though official, act of the Chief Executive, and will not be judicially noticed by the court, but must be specially pleaded. (U. S. v. Wilson, 7 Pet., 159; Bur- dick i>. U. S., 236 U. S., 79.) Amnesty and pardon "are of different char- acter and have different purposes. The one overlooks offense; the other remits pimishment. The first is usually addressed to crimes against the sovereignty of the State, to political offenses, forgiveness being deemed more expedient for the public welfare than prosecution and piinish- ment . The second condones infractions of the peace of the State. Amnesty is usually general, addressed to classes, or even communities — a legislative act or under legislation, constitu- tional or statutorj'^the act of the siipreme mag- istrate. There may or may not be distinct acts of acceptance. If other rights are dependent upon it and are asserted, there is aflirmative evidence of acceptance. * * * If there be no other rights, its only purpose is to stay the movement of the law. Its function is exercised when it overlooks the offense and the offender, leaving both in oblivion." (Burdick v. U. S., 236U.'S.,79.) Delivery and acceptance. — The pardon is a deed, to the validity of which delivery is essential, and the delivery is not complete 86 Pardoning Power. Pt. 1. TEE CONSTITUTION. Art. II, Sec. 2. without acceptance. It may be rejected by the person to whom it is tendered, and, if re- jected, there is no power in the court to force it upon the individual. (U. S. v. "Wilson, 7 Pet., 150; Burdick v. U. S., 236 U. S., 79.) A pardon must be accepted before a witness may be required to answer incriminating ques- tions connecting him with matters for which the pardon grants liim immimity . The witness has the right, if he desires to do so, to refuse the pardon and decline to testify. (Burdick v. U.S., 236 U.S.. 79.) Procedure upon requests for pardon. — Pursuant to an undei'standing between the Department of Justice and the Departments of War and Na\y , and by niles relating to applica- tions for pardon adopted by the Attorney Gen- eral and approved by the President, the De- partment of Justice will not consider applica- tions for pardon for desertion or other offenses against the military and naval laws. "\Mien applications are received by the Department of Justice, they are referred to the Secretary of the Na^"y or the Secretary of War for consideration. The Department of Justice does, however, issue the formal warrants of pardon in Army and Na^'y cases. (Letter of Department of Justice, Sept. 6, 1904, file 7466-04.) In practice in Navy cases, where the Secre- tary of the Navy approves an application for pardon and transmits it to the President with favorable recommendation, if a pardon is to be granted, the Secretary's letter is returned wdth the President's approval indorsed thereon; the papers are then transmitted to the Department of Justice, where the formal warrant of pardon is prepared for the President's signature; when signed by the President, the warrant of pardon is sent by the Department of Justice to the Secretary of the Navy, to be transmitted to the beneficiary, together with a blank form of receipt and acceptance to be signed by the recipient of the pardon and returned by him to the Navy Department for file. (File 26282; Kept, of Judge Advocate General to President's Commission on Economy and Efficiency, Nov. 28, 1910, file 28067.) Form of pardon. — "Nor is the form which this pardon may assume at all important, or the manner of its promulgation. AXTienever the President, as an act of grace or clemency, inter- venes to condone, in whole or in part, an offense committed, or to prevent or remit the whole or a portion of a punislmient ordered, or to commute the whole or a portion thereof by the substitu- tion of another less severe, or to remove disa- bilities conseqiient upon con\'iction, and in whatever form this is done, whether by a formal pardon directed and delivered to the benefi- ciary, by Executive order tlirough The Adj utant General, or by a proclamation of amnesty to a class of offenders, this is always and necessarily an exercise of the pardoning power vested in the President by the Constitution. In no other way can the President interfere to condone an offense, prevent or mitigate a pimishment adjudged, or remove disabilities consequent upon conviction." (27 Op. Atty. Gen., 178; but see above, " Delivery and acceptance.") The following communication, addressed by The Adjutant General of the Army to the gov- ernor of Kansas, was held to constitute a pardon by the President: "By direction of the Presi- dent of the United States, the disabilities re- sulting from the dismissal of Albert H. Camp- bell, formerly a captain in the Fourteenth Regiment Kansas Vohmteer Cavalry, by sen- tence of general court-martial promulgated in General Orders, No. 54, May 30, 1865, Depart- ment of Arkansas, are hereby removed, and he may be recommissioned should your excellency so desire." (27 Op. Atty. Gen., 178.) ' ' That such pardon to be effective need not be addressed to the beneficiary is abundantly shown by the various proclamations of pardon and amnesty granted by different Presidents to large classes of offenders, and which have been imiformly upheld as effective by the Supreme Court. (See 1 Winthrop Mil. Law, 2d ed., 714- 715.) In such cases all persons embraced in the proclamation are entitled to its benefits, although they may never before have heard of the amnesty . Indeed , the usual way of pardon- ing militar>- offenders is by Executive order pro- mulgated and entered in the records of the War Department. (1 AVinthrop, 714.)" (27 Op. Atty. Gen., 178.) The Constitution of the United States con- fers upon the President "power to grant par- dons for offenses against the United States," thus assimilating a pardon to an express grant by deed, and the general constitutional pro- vision is of this character. This was but an adoption of the English rule that a pardon was a grant under the great seal. Even an instru- ment granting a pardon under the sign manual of the King was not sufficient. All the courts in this country, construing the constitutional pro^^sion, hold that a pardon is an express act of the executive or legislature evidenced by something in the nature of a formal grant. As- sent of the grantee is needed to make it com- plete, a meeting of the minds of the parties concerned being essential. (31 Op. Atty. Gen., 419.) Effect of pardon. — "A pardon reaches both the pimishment prescribed for the offense and the guilt of the offender; and when the pardon is full it releases the pimishment and blots out the existence of the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. ■* * * There is only one limitation to its operation; it does not re- store offices forfeited or property or interests vested in others in consequence of the convic- tion of judgment." (Ex parte Garland, 4 Wall., 333. But see In re Spenser, 22 Fed. Cas. No. 13234, noted below; 11 Op. Atty. Gen., 228; the latter holding that the acceptance of a pardon is a confession of legal guilt. See also Roberts i'. State, 160 N. Y., 217.) Where error has been committed, it is more benign to grant a new trial to an officer who has been convicted by court-martial than to grant liim a pardon, which would be "most humili- ating to the prisoner." "Is there any mode by which liis honor can be rescued from the impu- tation thrown upon it by an improper sentence 87 Art. II, Sec. 2. Ft. 1. THE CONSTITUTION. Pardoning Power. of a first court, except that of ordering a sec- ond?" (1 Op. Atty. Gen., 233; see note to amcndmontp. Art. V.) A pardon may involve "consequences of even greater dissrracb than those from wliich it pur- ports to retievo. Cirrumstances may be made to bring innocence under the penahies of the law. If so brought, escape by confession of griilt implied in the acceptance of a pardon may be rejected— preferring to be the victim of the law rather than its acknowledged transgressor; preferring death. even, to such certain ignominy. * * * The latter [pardon] carries an imputa- tion of guilt; acceptance a confession of it." (Burdicki'.U.S.,236U.S.,79.) "Moneys once in tlie Treasury can only be withdrawn by an appropriation by law. How- ever large, therefore, may be the power of pardon possessed by the President, and however ex- tended may be its application, there isthis limit to it , as there is to all his powers — it can not touch moneys in the Treasury of the United States, except expressly authorized by act of Congress. The Constitution places this restriction upon the pardoning power. AMiere, however, prop- erty condemned, or its proceeds, have not thiis vested, but remain imder control of the Execu- tive, or of officers subject to his orders, or are in the custody of the jiidicial tribunals, the prop- erty will be restored or its proceeds delivered to the original owner upon hie full pardon." (Knote-y.U.S.,95U. S.,149.) "The test, then, is whether the proceeds of a fine, penalty, or forfeit \ire has passed into the Treasury of the United States. If noc, the pardoning power of the President may act upon It * * *." (23 Op. Atty. Gen., 360, 363; Bee also 14 Op. Atty. Gen., 599; 16 Op. Atty. Gen., 1; 80p. Atty. Gen., 281; 2 Op. Atty. Gen., 329; 10 Op. Atty. Gen., 452; Vanderslicev. U. S., 19Ct.Cls.,481.') "The effect of the pardon is prospective and not retrospective. It removes the guilt and restores the party to a state of inno- cence. But it does not change the past and can not anniliilate the established fact that he was guilty of the offense." (In re Spenser, 22 Fed. Cas. No. 13234.) The President's pardon does not alter the fact that the service of an enlisted man convicted of desertion was not "honest and faithful" within the meaning of statutes relating to the Army. Congress has the right to prescribe qualifications and conditions for enlisted men and to forbid those not possessing such qualifi- cations to enter the military ser\T.ce. (22 Op. Atty. Gen. ,39.) " A pardon can not change existing or accom- plished facts, although it may remove or pre- vent their consequences; ana in this case the Eardon can not change the fact that this officer as never been honorably discharged from the Army." (27 Op. Atty. Gen., 178.) '"The act is plain and unequivocal; it provides for a pen- sion to those only who have been ' honorably discharged ' from the Army or Navy. This officer has not been so discharged, and is there- fore not within the terms of the grant. ' ' (Same case.) The pardon of a convicted deserter from the Navy blots out his offense and he may legally be reenlisted, notwithstanding the provisions of sections 1420 and 1624 (art. 19), Revised Statutes, prohil)iting the enlistment of desert- ers in the naval sers-ice. (26 Op. Atty. Gen., 617, overruled by 31 Op. Atty. Gen., 225, noted below; see also 22 Op. Atty. Gen., 39, above noted.) Section 1441, Re^dsed Statutes, and the acts of February 16, 1914 (38 Stat., 283, 290), and August 29, 1916 (39 Stat., 589), are rules re- lating to qualifications for office in the Navy, and for membership in the Naval Reserve Force, which do not impose a penalty as such on individual offenders, and the incidental dis- abilities which they may suffer by reason of these statutes are not removed by a pardon. Similarly, sections 1420 and 1624, article 19, Revised Statutes, as amended by act of August 22, 1912 (37 Stat., 356), ai-e statutes relating to the general organization and efficiency of the Na^y, which affect only incidentally particular classes of individuals, and are ob\dously not intended as punishment for offenses; they place deserters in the same category with minors, insane persons, and intoxicated persons as not qualified for the naval service; and a pardon does not remove the disqualification attached to the /acf of desertion and render the deserter eligible for reenlistment in the naval service. On the other hand, section 1998, RoAOsed Stat- utes, as amended by the act of August 22, 1912 (37 Stat., 356), prescribes disabilities, not merely incidental to qualifications for service in the Navy, but in effect and by express avowal constituting punishment of offenses, which as such would of course be 'niped out by an unconditional pardon. (31 Op. Atty. Gen., 225, overruling 26 Op. Atty. Gen., 617, noted above.) By sections 4756, 4757, Revised Statutes, benefits are conferred on persons formerly in the naval service who have "not been discharged for misconduct." The recipient of a pardon is entitlecl to the benefits of these sections in the same manner and with the same force as if he had never been discharged for misconduct. (File 5789-99, Sept. 2, 1899.) A pardon for desertion operates from its date to relieve from all further penalties and forfei- tures consequent upon desertion, but a man is not entitled to arrears of pension or to relief covering the period during which he was not in a pensionable status; that is, prior to date of pardon. (File 2443-03.) Congress has a constitutional right to pro- hibit the oflicers of the Government from pay- ing persons who encouraged rebellion, and they can not consider such claims, although the claimants may have received an Executive pardon. (Hart v. U. S., 16 Ct. Cls., 484; affirmed 118 U. S., 62; compare U. S. v. Klein, 13 Wall., 147.) A pardon can not restore an officer to the service after a sentence of dismissal has been executed (Vanderslice v. U. S., 19 Ct. Cls., 481; 11 Op. Atty. Gen., 19); but it may re- store an officer to his original position in his grade after a sentence of loss of numbers (12 Op. Atty. Gen., 547); and prior to execution of a sentence of dismissal the President may mitigate it to suspension from rank and pay. (4 Op. Atty. Gen., 433.) 88 Power of Appointment. Pt. 1. THE CONSTITUTION. Art. II, Sec. 2. Where a convicted offender has been given an unconditional pardon, the President can not afterwards issue him a supplemental pardon for the specific purpose of relieving him of dis- abilities resulting from State laws. If such disabilities were not removed by the pardon already issued, they are a matter under the control of the State and not of the Federal pardoning power. (7 Op. Atty. Gen., 760.) "As to the matter of incidental disabilities of conviction for crime, it has seemed to me that a pardon by the proper pardoning power of one jurisdiction does not affect disabilities imposed by another jurisdiction." (8 Op. Atty. Gen., 284.) A pardon obtained by fraud is void and of no effect. (11 Op. Atty. Gen., 227.) A pardon issued to a deserter from the Navy does not authorize the Navy Department to remove the mark of desertion entered on its records, the entry being one of fact, which is not altered by the pardon. (File 26251- 1963:1, Aug. 17, 1910; compare file 1768-D, 1902, case of Ezekiel Downey.) A person convicted of an offense against the laws of the United States, which disfranchises him as a citizen, can be restored to his rights by a pardon issued before or after he has suf- ered the other penalties incident to his con- viction. (9 Op. Atty. Gen., 478; see also 14 Op. Atty. Gen., 124; compare 7 Op. Atty. Gen., 760.) "There are two general classes of punish- ments for military offenses. First, those which directly affect the person or property of the offender, such as death, imprisonment, or dis- missal; fines; the return or restoration of prop- erty or money wrongfully held, and the like. These are prescribed by law or established usage, and are imposed in the sentence itself. Second, certain disabilities, such as the depri- vation of certain civil and political rights which persons otherwise similarly situated may have and enjoy — such as the rights of citizenship, the right to vote or to hold ofhce, to be em- ployed in the Government or to enlist or be appointed in the Army, and the like. These are prescribed by law or established usage, but are not imposed by the sentence and are rather consequences of the conviction. It is with these that we have to do here. From these considerations it is obvious that this communi- cation * * * was necessarily an exercise of the pardoning power and as such was effective to the extent there expressed, namely, in the removal of all disabilities consequent upon the conviction of the officer." (27 Op. Atty. Gen,, 178.) [Clause 2. Treaty making power; appointment of officers.] ^ He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambas- sadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Con- gress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Depart- ments. I. II. III. IV. Officers of the United States. Constitutional Power of Appoint- ment. Power of Congress. Statutory Requirements and Qual- ifications. V. Power of Senate. VI. What Constitutes Appointment. VII. Pay and Oath of Officers. VIII. Power of Removal. IX. Right of Officers to Resign. I. Officers of the United States. Who are officers of the United States. — "What is necessary to constitute a person an officer of the United States in any of the various branches of its service has been fully considered by this coiu-t in United States v. Germaine (99 U._ S., 508). In that case it was distinctly pointed out that under the Constitution of the United States all its officers were appointed by the President, by and with the consent of the Senate, or by a court of law, or the head of a department; and the heads of departments were defined in that opinion to be what are now called the members of the Cabinet. Unless a person in the service of the Government, therefore, holds his place by virtue of an ap- pointment by the President, or of one of the courts of justice or heads of departments author- ized by law to make such an appointment, he is not, strictly speaking, an officer of the United States." (U. S. v. Mouat, 124 U. S., 303; 4 Comp. Dec, 696.) "This provision of the Constitution divides inferior officers into two classes, according to the source from which the power of appointment is derived " ; namely, officers appointed by the President, by and with the advice and consent of the Senate, in accordance with the duty directly imposed on the President by the Con- stitution itself; and officers otherwise appointed in accordance with the direction of Congress, (30 Op. Atty. Gen., 177.) "It would be impossible to define, except arbitrarily, the meaning of the words 'inferior 89 Art. II, Sec. 2. Pt.l. THE CONSTITUTION. Power of Appointment. officers,' in their application to officers of the different bruiuhos of the public service who have no ofiuiul relation to each otlier. and it would not be ea.-iy to se]^arate all tlie ollicers of the tiovemnient into two classes and draw a satisfactory line which would define the infe- rior, in the sense in which it is claimed that word is used, from those of the higher class, nor is it necessary to attemjit to do either. In our o])inion, the words as used in connection ^\•ith the other language of the same clause, have a {)lain, definite, and intclhgible meaning, capa- )le of unmistakable application to effect the pur])oses of that provision of the Constitution, llaving s])ecifiea certain officers, imnisters, consuls, and judges of the Supreme Oourt who sliall be nominated by the President and ap- pointed by and with the advice and consent of the Senate in all cases, the Constitution leaves it to Congress to vest in the President alone, the courts of law, or the heads of depart- ments the a])pointment of any officer inferior or subordinate to them, respectively, whenever Congress thinks proper so to do." (Collins v. U. S., 14 Ct. Cls., 5G8.) "The word inferior is not here used in that vague, indefinite, and quite inaccurate sense which has been suggested — the sense of petty or unimportant; but it means subordinate or in- ferior to those officers in whom respectively the power of appointment may be vested — the Presi- dent, the coui'ts of law, and the heads of departments." (Collins -y. U.S., 14 Ct. Cls., 568; see also 23 Op. Atty. Gen., 574, 578, 579.) ' ' Whenever, therefore, Congress thinks proper to vest in the President alone, in a court of law, or in the head of a department the appointment of any of their respective subordinate officers, other than those named in the clause under consideration, or whose appointment is other- wise pro\'ided for by the Constitution, it must be held that such officers are inferior officers within the meaning of the Constitution, whose api)ointment in that manner Congress has the power to authorize; and the act of Congress must be respected and enforced by the execu- tive officers of the Government." (Collins v. U. S., 14 Ct. Cls., 568; see also U. S. v. Germaine, 99 U. S., 508.) "An office is a public station or employment conferred by the appointment of Government. The term embraces the ideas of tenure, dura- tion, emolument, and duties." (U. S. v. Hart- well, 6 Wall., 385, holding that a clerk in the office of an Assistant Treasurer of the United States is a public officer within the meaning of a penal statute. For other cases, see note to act July 31, 1894, sec. 2, 28 Stat., 205.) The clerks employed in the offices of the several departments of the Government are not liable to militia duty, being executive officers of the Government of the United States, under the terms of the statute exempting from such duty the Vice President, the officers, judicial and executive, of the Government of the United States, the members of both houses of Congi'ess and their respective officers, all custom-house officers, with their clerks, all post officers and stage drivers employed in the care and conveyance of the mail, etc. (Ex parte Smith, 2 Cranch, C. C, 693, 22 Fed. Cas. No. 12967, cited with ai)proval in U. S. v. Ilartweli, 6 Wall., 385, 393.) A person may be an officer within the mean- ing of statutory enactments, although not an oliicer of the United States in the constitu- tional sense. Thus, clerks to i)aymasters in the Navy, although not appointed in any of the methods provided for by the Constitution, were held oflicers of the Navy witliin the mean- ing of a statute pro\'iding for increased pay according to length of service (U. S. v. Hendee, 124 U. S., 309, affirming 22 Ct. Cls., 134), but at the same time were held not to be officers in the constitutional sense (U. S. v. Mouat, 124 U. S., 303). Later, when the appointment of these clerks was vested in the Secretary of the Navy by regulations issued in accordance with section 1547, Revised Statutes, it was held that they thus became officers of the United States in the constitutional sense, as well as in the popular meaning of the term. (27 Op. Atty. Gen., 157; but see Ashton v. U. S., 51 Ct. Cls., 65. Congress has now pro\ided for the ap- pointment of pay clerks in the constitutional manner; see act Mar. 3, 1915, 38 Stat., 942.) Similarly, a midshipman at the Naval Acad- emy, although appointed by the Secretary of the Navy, "by direction of the President," was held not to be an officer of the Na\^ within the meaning of article 36 of the Articles for the Government of the Navy (sec. 1624, R. S.), re- stricting dismissals from the Navy (Weller v. U. S., 41 Ct. Cls., 324); although held to be an officer within the meaning of various other statutes. (See sec. 1512, R. S. See further, Perkins v. U. S., 20 Ct. Cls., 438, affirmed 116 U. S., 483; U. S. v. Moore, 95 U. S., 760; U. S. V. Redgrave, 116 U. S., 474, and sec. 1, R. S.) II. Constitutional Power of Appointment. Who are to make appointments to oflB.ce. — "When Congress creates an office, but does not vest the power of appointment thereto in any of the persons specified, then the Con- stitution operates, proprio vigore [of its own force], and immediately casts upon the Presi- dent, by and with the advice and consent of the Senate, the duty of appointing thereto." (30 Op. Atty. Gen., 177. See also note to sec. 169, R. S.) In the absence of an express enactment to the contrary, the appointment of any officer of the United States l:)elongs to the President and Senate. (29 Op. Atty. Gen., 116, citing, 6 Op. Atty. Gen., 1; 15 Op. Atty. Gen., 3, 449; 17 Op. Atty. Gen., 532; 18 Op. Atty. Gen., 98, 298; 26 Op. Atty. Gen., 627.) "The appointing power here designated in the latter part of the section was no doubt intended to be exercised by the department of the Government to which the officer to be appointed most appropriately ])elonged . ' ' (Ex parte Hennen, 13 Pet., 258; Collins v. U. S., 14 Ct. Cls., 568, 575.) Congress ' ' may authorize the President or the head of the ^^'ar Department to appoint an Army officer, because the officer to be appointed is inferior to the one thus vested with the ap- pointing power." (Collins t). U. S., 14 Ct. Cls., 568.) 90 Po^wer of Appointment. Pt. 1. THE CONSTITUTION. Art. II, Sec. 2. "A statute which provides that ' the President be, and he is hereby, authorized to reinstate Maj. C, kite of the United States Army, and to retire him in that grade, as of the date he was previously mustered out, ' confers authority on the President alone to reinstate the officer, without the advice and consent of the Senate." (Collins V. U. S., 14 Ct. Cls., 568, syllabus.) "In Moore's case (95 U. S., 760) the Supreme Court has gone much further than we now go, or than this case requires, in upholding the validity of an appointment made without the advice and consent of the Senate. The statutes provided that * * * all appointments in the Medical Corps [of the Navy] should be with the advice and consent of the Senate. (Sec. 1369, R. S.) * * * Moore was an assistant surgeon who had successfully passed his examination for promotion and had been notified by the Secretary of the Navy that the report of the board of examiners was approved by the department, and from that date he would be regarded as a 'passed assistant siu*- geon.' It was held by the Supreme Court that ' the place of passed assistant surgeon is an office, and the notification by the Secretary of the Navy was a valid appointment to it. " ' (Collins V. U. S., 14Ct. Cls.,568.) An officer [deputy commissioner of fisheries] appointed by the head of a department without statutory authority was not legally appointed, and his status is therefore that of a de facto officer. (29 Op. Atty. Gen., 116.) When the President is authorized by statute to appoint certain officers of the Navy and Marine Cor])s, the advice and consent of the Senate is not required. "The appointments provided for by this legislation are not such as by the Constitution are required to be made in any particular way. It was within the prov- ince of Congress to prescribe by whom and how these additional ofticers should be chosen, appointed , and commissioned . Congress might have directed that they should be appointed by the President, by and with the advice and consent of the Senate, but such was not the method actually provided for. The provision of the statute is that the President is authorized to appoint. I see no ground whatever for hold- ing that the advice and consent of the Senate is requisite to a lawful appointment under this legislation. An examination of kindred enact- ments relating to appointments in the Na\'y as well as appointments in the Army indicates that Congress frequently discriminates between appointments to be made by the President alone and appointments to be made by the President by and with the advice and consent of the Senate." (22 Op. Atty. Gen., 82.) "The statutes appear to be entirely silent upon the subject as to who shall make the appointments of midshipmen at the Naval Academy, except that, if Members of Congress fail to nominate, such vacancies shall be filled by appointment of the Secretary of the Navy. (Sec. 1514, R. S.) The appointment in this case was made 'by direction of the Presi- dent,' and we understand that this is and has been the universal practice in the making of appointments with the exception a])ove stated . ' ' (Weller v. U. S., 41 Ct. Cls., 324, 336; see also 10 Op. Atty. Gen., 46.) 54641°— 22 7 91 The only question to be solved here is whether there is provision for the appointment of a secretary to the Admiral by some one other than by the President, by and with the advice and consent of the Senate. The ex- pression of the statute is, that the Admiral "shall be allowed"- a secretary. That on its face indicates that the appointment is to be personal to the Admiral and so suggests that he is to make the selection. On account of this and the provisions of the Navy Regulations in force when the law was passed providing for appointment of his secretary by the Admiral, held, that api^ointment in this case was not to be made with the advice and consent of the Senate. (19 Op. Atty. Gen., 589.) By section 169, Revised Statutes, Congress has vested in the heads of departments the appointment of clerks, laborers, and other employees in their departments. (See note of decisions under that section as to positions included therein.) The following are examples of statutes in which Congress has in the past vested the api^ointment of naval officers in the President alone: Admiral of the Navy (act Mar. 2, 1899, 30 Stat., 995; act Mar. 3, 1899, 30 Stat., 1045); warrant officers (sec. 1405, R. S.; act Mar. 4, 1913, 37 Stat., 891; etc.); ensigns, when ap- pointed from warrant officers (act Mar. 3, 1901, 31 Stat., 1129); Commandant of the Marine Corps (act June 6, 1874, 18 Stat., 58); second lieutenants, Marine Corps (act Mar. 3, 1899, sec. 19, 30 Stat., 1008); Spanish War appointments (act May 4, 1898, 30 Stat., 369). See also 23 Op. Atty. Gen., 574, 578; 23 Op. Atty. Gen. , 138. Power of appointment limited, by Consti- tution. — "Power of appointment under the United States can not be communicated by act of Congress to persons not named to that end by the Constitution." (8 Op. Atty. Gen., 41.) "Congress has power to distribute at its pleasure the appointment of inferior officers between the President, courts of law, and heads of departments, or to vest such appointments exclusively in one or two of those depositories; but it has not power to vest appointments elsewhere directly or indirectly." (13 Op. Atty. Gen., 516, 521.) Appointments made by heads of bureaus in accordance with statute are presumed to be made with approval of the head of the de- partment and are made by the head of a de- partment within the meaning of the Constitu- tion. (Price V. Abbott, 17 Fed. Rep., 506; Frelinghuysen v. Baldwin, 12 Fed. Rep., 396; Stanton v. Wilkeson, 22 Fed. Cas. No. 13299.) "It was argued that the appointment of Hatch was illegal because it was made by the Secretary of the Treasury and should have been made by the superintendent of immi- gration. But the Constitution does not allow Congress to vest the appointment of inferior officers elsewhere than 'in the President alone, in the courts of law, or in the heads of depart- ments; ' the act of 1891 manifestly contemplates and intends that the inspectors of immigra- tion shall be appointed by the Secretary of the Treasury; and appointments of such officers by the superintendent of immigration could be upheld only by presuming them to be made Art. II, Sec. 2. Pt. 1. THE CONSTITUTION. Power of Appointment. with the concurrence or ap])roval of tlie Secre- tary of the Treiuiury, his ollicial head." (Elkin D. U. S., 142 r. S.,G51.). " Congress has at various times authorized appointments independently of the President, courts of law, or heads of clepartmenta in de- partmental bureaus, in the customs service, xn the internal-revenue service, in the land office, and in some other branches of the civil service. Upon this legislation it may be observed: First, that in some of these cases, euch as those of deputy marshals and deputy clerks, the persons appointed are representa- tives of the officers who appoint them and who in some particulars are responsible for their conduct; and perhaps it was considered by Congress that the office was substantially in the principal. Second, that it was no doubt considered by Congress that some of the per- sons whose appointments were thus pro\'ided for were not ofiicers in the constitutional sense of the term. IMany employments now uni- versally held to be oflices were not evidently euch at the outset, but with the growth of the Government were raised to that rank. Thus the force of these legislative precedents _ is somewhat weakened . Yet it can not be denied that some of them take for granted that Con- gress is absolute in the matter of appointments. Such, however, is not the constitutional rule." (13 Op. Atty. Gen., 516, 521.) ' ' Congress has no power whatever to vest the appointment of any employee coming fairly ■within the definition of an inferior officer of the Government in any other public authority but the President, the heads of departments, or the judicial tribunals." (13 Op. Atty. Gen., 522; 4 Op. Atty. Gen., 164.) 'Where a customs officer is appointable by the collector with the approbation of the Secretary of the Treasurj'', this approbation is really the appointment, or else the appointment "is null and void under the Constitution." (4 Op. Atty. Gen., 164; 13 Op. Atty. Gen., 522.) "So the Supreme Court has held that a clerk appointed by the Assistant Treasurer ^\•ith the approbation of the Secretary of the Treasury, was 'appointed by the head of the department ■ndthin the meaning of the constitutional pro- vision on the subject of the appointing power.' (U. S. V. Hartwell, 6 Wall., 393, 394.) _ Attorney General Speed thought that a provision in the internal revenue act of ]\Iarch 3, 1865, gi'ving to assessors the appointment of assistant assessors (13 Stat., 469), was 'clearly unconstitutional' (11 Op. Atty. Gen., 212), and such appears to have been the opinion of Congress itself, when ita attention was called to the subject, for the act of January 15, ]8G6, repealed that provision and gave the appointment of assistant assessors to the Secretary of the Treasury." (13 Op. Atty. Gen., 516.) A statute pro^dding for the a])pointment of certain officers by the commandant of the Marine Corj)8, "being in derogation of the Constitution, is to be literally construed and on its terms." Accordingly, held that said statute contemplated merely occasional and transitory ajtpointments under exceptional conditions. (2 Op. Atty. Gen., 77.) The power of ai)pointment, being discre- tionary, can not be delegated by the head of the dei)artment, though he may inquire, inves- tigate, and determine bytheaid of subordinates; hut the final determination must be his act, and not theirs. (21 pp. Atty. Geri., 355.) The power of appointment, especially where fixed by statute in the head of the department, can not be delegated to subordinates mthout authority of Congress. (29 Op. Atty. Gen., 273.) III. Power op Congress. Congress may refuse appropriations. — "The power of a])])ointmeut [of an agent or commissioner to make certain investigations] results from the obligation of the executive department of the Government ' to take care that the laws be faithfully executed' ; an obliga- tion imposed by the Constitution [Art. II, sec. 3 1 and from the authority of which no mere act of the legislature can occasion a dis])ensation. Congress may, however, indirectly limit the exercise of this power by refusing appropria- tions to sustain it, and thus paralyze a function which it is not competent to destroy." (4 Op. Atty. Gen., 248; see also note to Art. II, sec. 3.) Congress may change the rank or pay of an officer of the Army, or transfer him to the retired list, but it "can not appoint him to a new and different office, because the Constitu- tion vests the appointing power in the President with the advice of the Senate, or iu certain cases, in the President alone, the heads of the executive departments, or the courts of law." ("Wood V. U. S., 15 Ct. Cls., 151; affirmed 107 tr. S.,414; see also Moser v. U. S., 42 Ct. Cls., 86.) The rank of officers of the Navy is not to be changed except by and with the advice and consent of the Senate. (Act June 17, 1878, 20 Stat., 144, amending sec. 1506, R. S.) Congress can not control appointing power. — "I entertain no doubt that the power of appointment of officers, the duty to appoint whom devolves dii-ectly on the President and Senate by virtue of the Constitution itself, is one involving a discretion not entirely to be controlled by Congress. This power is from a source above Congress, namely, the Constitu- tion, and can not be destroyed by the inferior power." (30 Op. Atty. Gen., 177, in which it was also stated: "In this opinion it is only necessary to consider ai^pointments the duty to make which is directly imposed on the President by the Constitution itself; no dis- cussion of the other class [where Congress designates the person or i)ersons who are to appoint to a given office created by it] will be entered upon. That a difference exists be- tween the two is intimated in U. S. v. Perkins, 116 U. S., 483, 485.") "Nor does the fact that Congress is given power by the Constitution 'to make rules for the government and regulation of the land and naval forces,' enable it to control the President's discretion in respect of those appointments which the same supreme law requires him to make. The general power to regulate such forces can not be taken to nullify the specific 92 Power of Appointment. Pt.l. THE CONSTITUTION. Art. II, Sec. 2, mandate to the President to appoint to oflices where Con2;ress has made no other pro\dsion." (30 Op. Atty. Gen., 177; 29 Op. Atty. Gen., 254.) Conceding that Congress has power, under its constitutional authority to make rules for the government and regulation of the land and naval forces, to regulate appointments to oflices in the Army and NaA^, such power can not be earned to the designation of particular individuals to fdl such oflices, without imposing an unconstitutional restriction upon the appointing power. (18 Op. Atty. Gen., 18; see also 13 Op. Atty. Gen., 516, holding that, "unless controlled by authority, I should not take this power to embrace the subject of appointments"; and see 8 Op. Atty. Gen., 231, 29 Op. Atty. Gen., 254, to the same effect.) "It may now be considered to be definitely settled by the practice of the Government, that the regulation and government of the Army in- clude, as being properly within their scope, the regulation of appointment and promotion of officers therein. Hence, as the Constitution expressly confers upon Congress authority 'to make rules for the government and regulation of ' the Army, that body may impose such re- strictions and limitations upon the appointing power as it deems proper in regard to promo- tions or appointments to any and all vacancies in the Ajmy, pro\T.ded the restrictions and limitations be not incompatible with the exer- cise of the appointing power." (14 Op. Atty. Gen., 164.) "A promotion in the Army is an appoint- ment to a higher office therein. The custom, so far as I am aware, has always been to nomi- nate the promoted officer to the Senate and subsequently to appoint and commission him anew." (30 Op. Atty. Gen., 177.) Promotion by seniority is provided for in the Army by section 1257, Revised Statutes, which is generally similar to section 1458, Re- vised Statutes, requiring that in the Navy "the next officer in rank shall be promoted to the I)lace of a retired officer, according to the estab- lished rules of the service ; and the same rule of promotion shall be applied successively to the vacancies consequent upon the retirement of an officer." Also, by act of October 1, 1890 (26 Stat., 562, sec. 3), it is provided that "if any officer [of the Army] fails to pass a satisfactory examination and is reported unfit for promotion, the officer next below him in rank, having passed said examination, shall receive the pro- motion;" and by section 1480, Revised Statutes, pro\'ision is made for promotion of staff officers of the Navy by seniority. (As to constitu- tionality of these statutes, see notes to sees. 1458 and 1480, R. S. By amendments to sees. 1458 and 1480, R. S., promotion by selec- tion to certain grades in the Navy is pro- vided for.) "I do not think * * * that the act of October 1, 1890, makes it obligatory upon the President to promote the senior officer in the grade of major when a vacancy exists in the grade of lieutenant-colonel in the Quarter- master Corjis, if in his opinion the record of the officer has been such as to indicate that he is disqualified for promotion." (30 Op. Atty. Gen., 177._ The Attorney - General expressly limited this opinion to the cases of officers ap- pointed by the President with the concurrence of the Senate, under direct authority of the Constitution. See also Ray v. Garrison, 42 App. D. C, 34, and 29 Op. Atty. Gen., 254. "Respecting promotions in the Army, I have been unable, after careful examination, to find a single instance where the power of Congress to prescribe the rule therefor has been even doubted." (14 0p. Atty. Gen., 164, Jan. 9, 1873.) In view of section 1480, Revised Statutes, as amended by act of February 27, 1877, promotions of staff officers of the Navy should be made by seniority; accordingly, the claim of an assistant surgeon, who has passed the necessary examina- tions, to be promoted according to seniority, is well founded. (17 Op. Atty. Gen., 48.) "The rules which existed at the date of the act of 1866 concerning the subject of appoint- ment and promotion in the Army [including provisions for promotion by seniority] became, as it were, fixed; and ha\'ing the force of law they must be taken to control the appointing power in regard to that subject until Congress shall othemnise direct." (14 Op. Atty. Gen., 164. The act mentioned provided that the existing Army Regulations should "remain in force" until future action on the part of Con- gress.) "In filling original vaaincies or offices in the Army newly created, the opinion was advanced by President Monroe, in a message to the Senate dated April 12, 1822, that 'Congress had no right under the Constitution to impose any re- straint bv law on the power granted to the President, so as to prevent his making a free selection of proper persons for these offices from the whole body of his fellow-citizens.' The Senate, however, disagreed vnth. that opinion, maintaining that, as the Constitution conferred upon Congress power to 'make rules for the government and regulation of the Army, that body had a right to make any which it thought would benefit the public service and to fix the rule both as to promotions and appointments in the Army." (14 Op. Atty. Gen., 164; but see 29 Op. Atty. Gen., 254.) For other cases, see notes to sections 1458 and 1480, Revised Statutes. Congress can not designate appointee. — A bill providing that ''the President be, and he is hereby, authorized to nominate and by and with the advice and consent of the Senate to appoint " a designated person to the position of colonel in the Army, is beyond the power of Congress and should not be approved by the President for the following reasons: First. If the bill be \iewed as making it imperative upon the President to appoint, Congress can not im- pose such requirement and thus virtually as- sume a power (that of making an appointment to office) which does not constitutionally belong to it; and if it be regarded as advisory only, it is without the essential element of a law, and Congress can enact nothing but that which is to have full vigor and effect of a law. Second. The authority of Congress to make rules for the government and regulation of the land and naval forces, and ' ' to make all laws which shall be necessary and proper for carrying into execu- tion the foregoing powders," can not be carried to the designation by law of a particular indi- vidual to fill a military office, ■without conflict- 93 Art. II, Sec. 2. Ft.l. THE CONSTITUTION. Power of Appointment. ing ^^•ith the power of app(nnt incut expressly given the President. Third. By this bill Con- gress in effect creates an ollice only n]ion con- dition tliat it is to he filled by a particular individual named. If this principle were adopted generally in the creation of offices, it woidd obviously result in constraining the appointing power to accept the co^dition im- posed and fill the offices udth the indi^dd^lals designated by Congress, thus frustrating the design of the Constitution, which is that officers must be alone selected according to the judg- ment and will of the person and body in whom the powers of nominating, ad\'ising, and con- senting, and ap])ointing are vested. "Regard- ing the bill as imposing, or attempting to im- pose, upon the President a duty to appoint the person designated therein, it is without any support in fhe Constitution. It is an assump- tion of an implied power which is not based upon any express power, and clearly invades the constitutional rights of the President." (18 Op. Atty. Gen., 18. See also U. S. y. Fer- reira, 13 How., 40, holding unconstitutional a law which directed certain Federal judges to act as commissioners for adjudication of claims: "If they are to be regarded as officers, holding offices under the Government, the power of appointment is in the President, by and with the advice and consent of the Senate, and Con- gress could not by law designate the persons to fill these offices." And see note to Art. I, sec. 7, clause 2.) "It has been alleged, I think, without suffi- cient cause, that this clause is unconstitutional because it nas created a new office and has ap- pointed Capt. Meigs to perform its duties. If it had done this, it woidd have been a clear question, because Congress have no right to ap- point to any office, this being specially conferred upon the President and Senate. It is evident that Congress intended nothing more by this clause than to express a decided opinion that Capt. Meigs should be continued in the employ- ment to wMch he had been previously assigned by competent authority." (ilessages and Papers of the Presidents, vol. 5, p. 597. See further, as to this case, note to Art. II, sec. 2, clause 1, "Powers of Congress and of the President.") Restoration of dismissed oflicers. — "While affirming in the strongest terms its opin- ion of the general inexpediency of restoring dis- missed officers, the department also relies for the protection of the service upon the unconstitu- tionality of legislation for such purposes, as set forth in the message of July 2, 1884, returning, without executive approval, a bill contem- plating such action. (Annual Report Sec. Nav., 1884, p. 42; see note to Art. I, sec. 7, clause 2, for message cited; see also 17 Op. Atty. Gen., 297.) "No more powerful influence for the demoral- ization of the naval service is to be found than that which results from the restoration of officers dismissed for drunkenness or other misconduct, or for demonstrated incapacity. Cases of restoration which have occurred in the past would hardly have been possible but for a lenient spirit in the service, which, although it may proceed from kindly motives, indicates an indifference on the part of officers them- selves concerning the tone of the Navy, and a disregard of their imperative duty to contribute by evory means in their power to the main- tenance of a high standard of professional char- acter. PubUc opinion should not only sternly condemn aU officers who are guilty of such mis- conduct as to disqualify them from service on the active liat of the Navy, but also those who, from whatever cause, lend themselves to efforts for the restoration of worthless and ejected membersof their prof es.sion." (Ann. Rept.Sec. Nav., 1884, p. 42.) Additional duties imposed on officer. — "It is pointed to as invalidating the act that while Congress may create an office it can not appoint the officer. As, however, the two per- sons whose eUgibility is questioned were at the time of the passage of the act and of their action under it already officers of the United States who had been heretofore appointed by the President and confirmed by the Senate, we do not think that because additional duties ger- mane to the offices already held by them were devolved upon them by the act it was necessary that they should be again appointed by the President and confirmed by the Senate. It can not be doubted, and it has frequently been the case, that Congress may increase the power and duty of an existing office without thereby ren- dering it necessary that the incumbent should be again nominated and appointed." (Shoe- maker V. U. S., 147 U. S., 282. In this connec- tion see sees. 255 and 1550, R. S., concerning the designation of officers as disbursing agents.) A\Tiile Congress can not appoint to office, it may authorize a particular person or official to perform certain acts. (Kentucky v. Dennison, 24 How., 66, holding that Congress might authorize but not compel State officers to per- form certain duties with reference to the inter- state extradition of fugitives from justice; see also act Feb. 16, 1909, sec. 15, 35 Stat., 622, authorizing arrest of deserters from the Navy by State officers.) IV. Statutory Requirements and Quaxi- nCATIONS. Competitive examinations for appoint- raent. — "A rule, whether prescribed by Con- gress or by the President in pursuance of au- thority given by Congress, that a vacant civil office must be given to the person who is found to stand foremost in a competitive examina- tion, in effect makes the judges in that exam- ination the appointing power to that office and thus contravenes the constitutional provisions on the subjectof appointments. * * * Viewing the appointing power conferred in the Consti- tution as a substantial, and not merely a nominal function, I can not but believe that the judgment and will of the constitutional depository of that power should be exercised in every appointment. The power was lodged where it is because the makers of the Constitu- tion, after careful consideration, thought that in no other depositories of it could the j udgment and the will to make proper appointments so certainly be found. * * * If Congress can com- pel the President to nominate a person selected by others, it can compel the Senate to advise and consent to the nomination. * * * Advice and consent imply an exercise of judgment and 94 Power of Appointment. Pt. 1. THE CONSTITUTION. Art. II, Sec. 2. will. So does nomination. So does appoint- ment. There is this difference, that the judg- ment and will of the Senate can regard only the person proposed by the President, while there is no similar constitutional limitation upon his judgment and will. But there is no right in Congress to constrain either to adopt the judgment and will of others. Such con- straint frustrates the constitutional design, that the judgment of the Senate shall revise the judgment of the President, and that the judgment of both shall concur in filling the office." (13 Op. Atty. Gen., 516.) Advisory board. — "The appointing power may avail itself of the judgment of others as one means of information. For want of per- sonal knowledge of candidates, it has habit- ually done so from the foundation of the Govern- ment. But this has been done in its discretion. I see no constitutional objection to an examin- ing board rendering no imperative judgments, but only aiding the appointing power with information. A legal obligation to follow the judgment of such a board is inconsistent with the constitutional independence of the appoint- ing power." (13 Op. Atty. Gen., 516.) Discretion of appointing power. — The argument has been made that the unquestioned right of Congress to create ofiices implies a right to prescribe qualification for them. This is admitted. But this right to prescribe quali- fications is limited by the necessity of leaving scope for the judgment and will of the person or body in whom the constitution vests the power of appointment. (13 Op. Atty. Gen., 516.) ' ' It has been suggested that the appointments now vested in the coiuls and heads of depart- ments could be trangfeiTed by Congress to the President, and that he could appoint according to the result of a competitive test, certified by an examining board. To this mode of selection, if discretionary with the President, there is no constitutional objection, and the same mode, under a similar condition, could be used by the \'arious appointing powers under present laws; it being always understood that the appointing power resorts to this test as a way of finding out the fittest person for the vacant office, and is not bound to abide by it if satisfied that the appointment of another would best serve the public interests. In short, the test of a com- petitive examination may be resorted to in order to inform the conscience of the appoint- ing power, but can not be made legally con- clusive upon that power against its own judg- ment and will." (13 Op. Atty. Gen., 516.) Unconstitutional precedents. — "The leg- islation of the country from an early period has been supposed to authorize a different constitu- tional view from that which is herein expressed [see preceding paragraphs]. * * * But when a congressional construction is incon- sistent with the plain meaning of the Constitu- tion, aa ascertained by authoritative canons, that meaning can not be overruled by such construction, how often soever repeated. * * * It more concerns us to ascertain what is the constitutional rule than to learn whether the rule has always been observed. Nineteen violations of the Constitution do not justify a twentieth. The present question, in its essence, is whether the appointing power be- longs to Congress or to those named in the Con- stitution as the depositories of that power; for if Congress can ordain that an office shall be filled by the person whom the examiners pronounce the fittest, it can ordain that the office shall be filled by the person whom Congress judges the fittest, and may directly appoint its favorite. * * * An enactment that the President shall appoint to a certain office the person adjudged by the examiners to be the fittest is not different, in constitu- tional principle, from an enactment that he shall appoint John Doe to that office. In neither case are his judgment and will called into exercise." (13 Op. Atty. Gen., 516.) Qualifications in general. — "Although the appointing power alone can designate an indi- vidual for an office, either Congress, by direct legislation, or the President, by authority de- rived from Congress, can prescribe qualifica- tions and require that the designation shall be made out of a class of persons ascertained by proper tests to have those qualifications; and it is not necessary that the judges in the tests should be chosen by the appointing power. Attorney General Legare has given an opinion ujion a question similar in principle. Dis- cussing the subject of appointment of inspectors of customs by the Secretary of the Treasury, he considers that it would 'be a fair constitutional exercise of the power of Congress to require that the Secretary should make an appointment out of a certain number of nominees proposed by a collector.'" (13 Op. Attv. Gen., 516, citing 4 Op. Atty. Gen., 164; see also, 26 Op. Atty. Gen., 502; 25 Op. Atty. Gen., 341.) "It has been argued that a right in Congress to limit in the least the field of selection implies a right to caiTy on the controlling process to the designation of a particular individual. But I do not think this a fair conclusion. Congress could require that officers shall be of American citizenship or of a certain age, that judges should be of the legal profession and of a certain standing in the profession, and still leaA'e room to the appointing power for the exercise of its own judgment and will; and I am not prepared to affirm that to go further and require that the selection shall be made from persons found by an examining board to be qualified in such particulars as diligence, scholarship, integrity, good manners, and attachment to the Govern- ment would impose an unconstitutional limita- tion on the appointing power. It would still have a reasonable scope for its own judgment and will. But it may be asked, At what point must the controlling process stop? I confess my inability to answer. But the difficulty between dra%ving a line between such limita- tions as are, and such as are not, allowed by the Constitution, is not proof that both classes do not exist. In constitutional and legal inquiries right or wrong is often a question of degree. Yet it is impossible to tell precisely where in the scale right ceases and wrong begins. * * * In the matter now in question, it is not suppos- able that Congress or the President would re- quire of candidates for office qualifications unattainable by a sufficient number to afford ample room for choice." (13 Op. Atty. Gen., 516.) 95 Art. II, Sec. 2. Pt. 1. THE CONSTITUTION. Power of Appointment. A statute prescribing the qualifications neces- sary for appointment as an ofiit-er of the Navy, "being in derogation of the appointing power phould bo strictly construed and not extended by implication to include anything wliich does not clearh' come within the nifaning of the languairc used." CFile 8(522-2, Feb. 10. lOOS.) Nomination of inelig^ible. — The President is not authorized to nominate for oflice a person ineligible under Article I, section 6, clause 2, and such a nomination, although confirmed by the Senate, can not be made tlie basis of an appointment to the nominee, even when his disqualification ceases. (170p. Atty.Gen.,522.) Appointment of ineligible. — The qualifica- tions of a candidate are presumed to have been ascertained and found satisfactory previous to his appointment to oflice; and a subsequent administration can not, in the absence of fraud, deprive the incumbent of his office, although evidence should be produced that he did not possess the statiitorv qualifications for appoint- ment. (28 0p. Atty. Gen., ISO.) " The law presumes that persons acting in a public capacity have been duly appointed, and their acts as de facto officers have in the interest of the public been upheld, thoush in- valid as to them. (Ball v. U. S., 140 U. S., 118, 129; McDowell v. U. S., 159 ib. 596, and authorities therein cited.)" (Northrupt). U. S., 45 Ct. Cls., 50.) V. Power of Senate, "The Senate can not originate an ap- pointment; its constitutional action is con- fined to a simple affirmation or rejection of the President's nominations; and such nominations fail whenever it disagrees to them. The Senate may suggest conditions and limitations to the President, but can not vary those submitted by him; for no appointment can be made except on his nomination, agreed to without quaUfica- tion or alteration. In the case of John R. Coxe, jr., nominated for lieutenant in the Navy from date, and confirmed A\'ith the qualification that he shall take rank next after Lieut. Elisha Peck, a commission can not properly issue." (3 Op. Attv. Gen., 188; see also 4 Op. Atty. Gen., 218.) "The harmony of the two subordinate branches, the independence of the President, the just weight of the Senate, and the useful operation of the power itself, \\'ill no doubt be best secured by confining each branch to its peculiar func- tion and not allowing either to deviate from the order of procedure prescribed by the Constitu- tion. " (3 Op. Atty. Gen., 188.) The confirmation of an officer nominated for promotion may be made as well by the con- firmation of his successor as in any otlier way provided it shows the assent of the Senate to such promotion. (23 Op. Atty. Gen., 30). VI. What Constitutes Appointment. "To constitute an appointment under this article, it is necessary, first, that the Presi- dent should nominate the person proposed to be appointed; second, that the Senate should adATse and consent that the nominee should be appointed; and, third, that in pursuance of such nomination and such advice and consent the appointment should be actually made." (4 Op. Atty. Gen.. 218.) The Constitution seems to contemplate thi'ee distinct operations: First, the nomi- nation. This is the sole act of the President and is completely voluntary. Second, the appointment. This is also the act of the Presi- dent, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate. Third, the commission. To grant a commission to a person appointed might, perhaps, be deemed a duty enjoined by the Constitution. " lie shall," says that instru- ment, "commission all the oflicers of the United States." The acta of appointing the officer and commissioning the person appointed can scarcely be considered as one and the same, since the power to perform them is given in two separate and distinct sections of the Constitu- tion. The appointment being the sole act of the President must be completely evidenced when it is shown that he has done everything to be performed by him. Should the commis- sion, instead of being evidence of an appoint- ment, even be considered as constituting the appointment itself, still it would be made when the last act to be done by the President was per- formed, or, at furtherest, when the commission was complete. The last act to be done by the President is the signature of the commission. He has then acted on the advice and consent of the Senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment on the advice and consent of the Senate concurring with his nomi- nation has been made, and the officer appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the ap- pointment, an inchoate and incomplete trans- action. (Marbury v. Madison, 1 Cranch, 137.) The appointment is the sole act of the ap- pointing power; the acceptance is the sole act of the officer, and is, in plain common sense, pos- terior to the appointment. As he may resign, 60 he may refuse to accept; but neither the one nor tlie other is capable of rendering the ap- pointment a nonentity. (Marbury v. Madison, 1 Cranch, 137.) Acceptance is not necessary to render the appointment complete; accordingly where a candidate was not above the maximum age for appointment when confirmed by the Senate, the statutory requirement was fulfilled, and he can legally be commissioned and accept the appointment after passing said age. (File 8622-2, Feb. 10, 1908.) Acceptance is necessary to vest the office in the appointee, and a formal acceptance is the evidence wliich in the public ser\ice generally it has been customary to require. (12 Op. Atty. Gen., 229.) But where a former officer of the Army asked the President in writing to rein- state him, under an act of Congress, and the President did so, no further formal acceptance was necessary. (Collins v. U. S., 15 Ct. Cls., 31.) Execution of the oath of office may be re- garded as an acceptance of the appointment. 96 Removal of Oflicers. Pt. 1. THE CONSTITUTION. Art. II, Sec. 2. (8 Comp. Dec, 521; 19 Op. Atty. Gen., 284.) An officer need not formally accept a promo- tion. Where he died before so doing accept- ance is conclusively presumed. (12 Op. Atty. Gen., 229.) Date of appointment. — An appointment made to take effect at a prior date is inopera- tive prior to the date on which it was actually made and accepted. (8 Comp. Dec, 521; 20 Comp. Dec, 214, citing Morey v. U. S., 35 Ct. Cls., 603, Jackson v. U. S., 42 Ct. Cls., 39, 17 Comp. Dec, 452. But see act Mar. 4, 1913, 37 Stat., 892, as to pay of officers of the Navy on promotion.) VII. Pay and Oath of Officers. Pay of ofO-cers. — With some exceptions, Congress may at any time make altera- tions of the salaries of public officers, to take effect from the passage of the act. The only contract which arises upon a statute estab- lishing a salary is to pay the incimibent of the office that salary while the law remains in force and unchanged. When the statute is repealed, superseded, or amended so as to alter the amount of the salary for the time being, the contract from that time forward is correspondingly changed. (Fisher v. U. S., 15 Ct. Cls., 329, citing Patten's Case, 7 Ct. Cls., 362; Butler v. Penn, 10 How., 402; Territory i;. Pyle, 1 Oreg., 151; Koontz v. Franklin, 76 Penn., 156.) The constitutional exceptions and limitations are that the compensation of the President shall neither be increased nor diminished during the period for which he shall have been elected (Art. II, sec. 1), and that the judges, both of the Supreme and inferior comls, shall receive for their services a compensation which shall not be diminished during their continuance in office. (Art. Ill, sec. 1.) (Fisher v. U. S., 15 Ct. Cls., 329. See also note to sec. 167, R. S.) To entitle an officer to recover pay claimed but not received, he must prove nis case, as the compensation annexed to a public office is incident to the title to the office and not to the exercise of the functions of such office. (Nor- thrup V. U. S., 45 Ct. Cls., 50; as to right of Government to recover money paid by mistake of law to persons who were not officers of the United States, see note to sec. 236, R. S., "VIII. Reopening of Accounts.") Pay of disbursing officer may commence prior to furnishing bond — that is, upon accept- ance of appointment or entering upon duty — thesame as other officers. (16 Op. Attv. Gen., 38; U. S. V. Eaton, 169 U. S., 346; Glavey v. U. S., 182 U. S., 595; U. S. v. Bradley, 10 Pet., 343; U. S. V. Linn, 15 Pet., 290.) Oath of ofla.ce. — The fact that an officer is his own successor does not relieve him from the requirement of taking the oath of office pre- scribed by sections 1756 and 1757, Revised Statutes. The law "contemplates that the oath shall be taken at every new appointment before entering upon the duty." (19 Op. Atty. Gen., 219.) _ . A promotion in the Army is an appointment to a higher office therein. (30 Op. Atty. Gen., 177.) For other cases, see notes to sections 1458 and 1757, Revised Statutes. VIII. Power of Removal. May be removed by President. — "In the absence of a constitutional provision or statu- tory regulation it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. This power of removal from office was a subject much disputed and upon which a gieat diversity of opinion was entertained in the early history of this Government. This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate, jointly, to remove where the tenure of the office was not fixed by the Constitution, which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted as the practical construction of the Constitution that this power was vested in the President alone, and such would apj^ear to have been the legislative construction of the Consti- tution." (Ex parte Hennen, 13 Pet., 230.) Congress may be empowered to fix the term of an officer of the District of Columbia so that he would have a right to hold during said term independently of the Executive and without his appointment being revocable by the Presi- dent, as was indicated by Chief Justice Mar- shall in Marbury v. Madison (1 Cranch, 137). This power might be sustained under the au- thority of Congress to exercise exclusive legis- lation in all cases whatsoever over the seat of government. (Art. I, sec. 8, clause 17.) A dis- tinction, however, exists as to other officers ap- pointed outside of such District. (Parsons v. U. S., 167 U. S., 324.) The President has the power, without the con- currence of the Senate, to remove a United States attorney who was appointed for a fixed term prior to the expiration of such term. (Paisons V. U. S., 167 U. S., 324.) By section 1767, Revised Statutes [repealed March 3, 1887], it was provided that any person appointed to office by and with the advice and consent of the Senate should be entitled to hold during the term for wliich appointed, "unless sooner removed by and with the advice and consent of the Senate, or by the appointment, with the Like advice and consent, of a successor in his place. ' ' Under this section it was proper for the President to "execute a formal act" re- moving the officer, " pursuant to the resolution of the Senate advising and consenting to his removal." (12 Op. Atty. Gen., 408.) There- peal of this section was intended to restore to the Piesident the power of removal without the ad- vice and consent of the Senate, if indeed that power had ever been taken from him. (Parsons V. U. S., 167 U. S., 327.) Military and naval officers. — "The vari- ous methods by which persons in the military or naval service of the United States may be involuntarily separated therefrom are embraced in the terms discharged,' 'dismissed,' and 'wholly retired.' The word 'discharged' is properly ' limited in its application to those who have enlisted for definite periods' (Emory v. U. S., 19 Ct. Cls., 254, 262), and unless qualified by other words — as, for example, 'dishonorable' 97 Art. II, Sec. 2. Pt. 1. THE CONSTITUTION. Removal of OflB.cers. discharge, 'bad-conduct' discharge, discharge ' wthout honor ' — it does not carry with it any Btignia of disgrace or ])uni3hment. ' Dismissed ' i.s a term ])oculiarly ap])lii'al)lo to officers and ia the eijuivalont vi a dishonorable discharge. 'Wholly retired' i.s a ])lirase coined for the pur- pose of conveying, with reference to officers, the Bame idea as attaches to the word 'discharged' when a])])lied to enlisted men. The meaning of those terms and the importance of distin- guishing between them was di.scussed by the Court of Claims in the case last above cited. * * * It is evident that the term ' discharged' as used in the act of 1882, now under considera- tion [])roviding for the discharge of officers who fail morally on examination for ])romotion], was intended to be synonymous Avith the worda ' wholly retired, ' and it has been given that con- struction by the department and by Congress." (File 21)260-1392, June 29, 1911, p. 25.) Statutory restrictions upon President. — By section 1229, Re\'ise(l Statutes, it was pro- vided that no officer in the military or naval service shall be dismissed in time of peace excei)t pursuant to the sentence of a court-mar- tial.^ This provision is repeated in section 1624, Revised Statutes, article 36, as to officers of the Navy, and in section 1342, Revised Statutes, as to officers of the Army. These enactments have been held constitutional in so far as concerns officers whose aj^pointments were not made with the advice and consent of the Senate, the court saying: "Whether or notCon- gi-esscan restrict the ])owerof removal incident to the ])ower of appointment of those officers who are appointed by the President by and with the advice and consent of the Senate, under the authority of the Constitution (Art. II, sec. 2), does not arise in this case and need not be considered. We hav^e no doubt that when Congress by law vests the appointment of infe- rior officers in the heads of departments it may limit and restrict the power of remov'al as it deems best for the public interest. The consti- tutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Con- gress may enact in relation to the officers so appointed. The head of a dei)artment has no constitutional ]irerogative of appointment to offices independently of the legislation of Con- gress, and by such legislation he must be gov- erned, not only in making appointments but in all that is incident thereto." (Perkinsi). U. S., 20 Ct. Cls., 438; quoted and expressly adopted by the Supreme Court in U. S. v. Perkins, 116 U. S., 483; compare U. S. v. Andrews, 240 U. S., 90.) Where an enlisted man was appointed by the President as a warrant officer in the Navy, without being discharged from his enlistment; Held, that it would not be legal to revoke his appointment, thereby restoring him to his former status as an enlisted man, and then dis- charge him from the Navy without sentence of court-martial. That this would be doing indi- rectly what the law does not allow to be done directly, and while "most desirable" in the case presented, was beyond the power of the President. (28 Op. Atty. Gen., 325.) A midshipman at the Naval Academy is not an officer of the Navy within the meaning of sec- tions 1229 and 1 624 (art. 36) of the Revised Stat- utes, restricting dismissals from the Navy. "Whether Congress has the constitutional jjower of such restricticm is not necessary to decide in thiscase." (Weller d. U. S., 41Ct.Cls., 324, dis- tinguishing U. S. V. Perkins, 116 U. S.,483, which held that a cadet engineer who had grad- uated from the Academy and had served in the Navy two ycnxrs imder orders was an offiu-er within the meaning of these statiites.) A cadet at West Point is not an officer within the mean- ing of section 1 229, Revised Statutes. (Ilartigan V. U. S., 196 U. S., 169, citing on general subject Mullan V. U. S., 140 U. S., 240; Shurtleff v. U. S., 189 U.S., 311.) Whatever power the President may have to dismiss civil officers, it does not apply to officers of the Army and Navy, who, under Revised Statutes, section 1229, shall not in time of peace be dismissed except upon and in pursuance of the sentence of a court-martial or in commu- tation thereof. (U. S. v. Andrews, 240 U. S., 90. See note to sees. 1229 and 1624, art. 36, R. S.) It is well settled that in time of war the President has the authority, under the Consti- tution and laws, to dismiss an officer of the Army or Navy from the service for any cause which in his judgment either renders the officer unsuitable for, or whose dismissal would promote, the public service. (Brown v. Root, 18 App. D. C..2.39.) As to right of officer to trial by court-martial after dismissal, see section 1624, art. 37, Revised Statutes, and Wallace v. United States (55 Ct. Cls., 396.) Power of President and Senate. — Sec- tion 1229, Revised Statutes, does not deprive the President of power, by and with the advice and consentof the Senate, toremov^ea commissioned officer of the Army or Navy. Accordingly, the President.has the ]iower to remove such officers by the appointment of others in their places, with the concurrence of the Senate. (Blake v. U. S., 103 U. S., 227; McElrath v. U. S., 102 U. S.,426; Keyes v. U. S., 109 U. S., 336, 339; Quackenbush v. U. S., 177 U. S., 25; 24 Op. Atty. Gen., 89; compare 15 Op. Atty. Gen., 463; 16 Op. Atty. Gen., 203.) A nomination made by the President to the Senate of A B in the place of C D, removed, operates to remove the incumbent upon confir- mation of the Senate, notwithstanding that no letter of dismissal was pre viously addressed to C D. The removal takes effect upon notifica- tion to the incumbent by letter in the name of the President, or upon arriv^al of his successor to enter upon duty. (8 Op. Atty. Gen., 379.) Reduction of Army. — The President was authorized by act of July 15, 1870, providing for the reduction of the Army, to "muster out" officers reported unlit for duty; and this author- ity was not limited by the act of Jiily 17, 1866, now embodied in section 1229, Revised Stat- utes. "The purpose of the act 17th July, 1866, was not to attach a life tenure or element of vested right to the olTice, but to save officers ' in time of peace ' from the ignominy of a hasty and dishonorable dismissal. The practical results of that statute in connection with the other pro- visions of law bearing upon the subject are these: That in time of war the President may dismiss 98 Recess Appointments. Pt. 1. TEE CONSTITUTION. Art. II, Sec. 2. an oflicer from the service at any moment and for any cause; that in time of peace he may dis- miss him for cause with the cooperation of a court-mai-tial, or remove him without cause with tlie consent of tlie Senate. The acts of 18G6 and 1870 are, therefore, neither in conflict nor in pari materia. They spring from different provisions of the Constitution. The one is an exercise of the legislative power 'to make rules for the government and regulation of the land and naval forces'; the other of the power 'to raise and support armies.' The former relates to the punishment or protection of the indi- vidual oflicer; the latter to the Army at large. It was the purpose of the one to secure to each oflicer a trial by court-martial in all cases 'in time of peace' ; it was the purpose of the other to reduce the Army of the United States from 45 to 25 regiments." (Sherburne v. U. S., 16 Ct. Cls., 491; see also Street v. U. S., 24 Ct. Cls., 230; Duryea v. U. S., 17 Ct. Cls., 24; and file 262G0-1392, June 29, 1911.) The courts will not grant an injunction to prevent the removal of an officer from the classified civil service (White v. Berry, 171 U. S., 366): "The appointment to an official position in the Government, even if it be simply a clerical position, is not a mere minis- terial act, but one Involving the exercise of judgment. The appointing power must deter- mine the fitness of the applicant; whether or not he is the proper one to discharge the duties of the position. Therefore it is one of those acts over which the courts have no general supervising power. In the absence of specific provision to the contrary, the power of removal is incident to the power of appointment. * * * Unless, therefore, there be some specific pro- \'ision to the cont'-ary, the .action of the Secre- tary of the Interior in removing the petitioner from office on account of inefficiency is beyond review in the courts, either by mandamus to rein?tate him or by compelling payment of salary as though he had not been removed." (Keimt). U. S., 177 U. S., 290; see also Brown v. Root, 18 App. D. C, 239.) "Under the former laws the courts had no power to review the action of the head of a de- partment in discharging an employee for in- efficiency. Keim v. United States, 177 U. S., 290; Tayiori;. Taft, 24 App. D. C, 95." Whether that rule is changed by act August 23. 1912 (37 Stat. 413), not decided, as that act has not been made effective by the action of the Civil Service Commission as therein provided. (Persing v. Daniels, 43 App. D. C, 470.) Where a statute specifies certain causes of removal from office, the incumbent is en- titled to a hearing prior to his removal (Reagan V. U. S., 182 U. S., 419); however, the specific mention of certain causes for removal is not exclusive, and the incumbent of an office may accordingly be removed for other causes; and in the case of removal for causes not specified in the statute he can not demand a hearing. (Shurtleff v. U. S., 189 U. S., 311.) IX. Right op Officers to Resign. "The resignation of an oflS.cer of the Navy is not effective until it has been duly ac- cepted by the President, who possesses the power of compelling the officer to remain in the service by declining to accept such resig- nation." (File 26505-21 and 28, citing Edwards V. U. S.. 103 U. S., 471; sec. 1624, R. S., art. 10; file 26262-2146.) [Clause 3. Eecess appointments.] ^Tlie President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by grant- ing Commissions which shall expire at the End of their next Session. Recess of Senate. — It was held by the Court of Claims, May 26, 1884, that there was "no doubt " that a vacancy occurring while the Senate wag temporarily adjourned could be and was legally filled by appointment of the President in accordance with this clause of the Constitution, and that the appointee legally held the office until he was notified of his rejec- tion by the Senate at its next regular session established by law, which Ijegan on the first Monday of the following December. (Gould v. U. S., 19 Ct. Cls., 593, 595.) The Attorney General, thereafter (Dec. 24, 1901), expressly dissented from the Court of Claims decision, and advised the President that a vacancy oc- curring during a temporary adjournment of the Senate could not be filled by him as a recess appointment, but that such appointments could l)e made only when the Senate adjoiirned sine die. (23 Op. Atty. Gen., 599; affirmed 29 Op. Atty. Gen., 602; modified, 33 Op. Atty. Gen., 20.) Vacancies in heads of Departments, bureaus, etc.— The President has the right under the Constitution, and impliedly under section 181, Revised Statutes, to make a tem- porary appointment, designation, or assign- ment of one officer to perform the duties of another in the case of a vacancy caused l)y death, disability, or otherwise during the recess of the Senate; and such temporary appointment, designation, or assignment is not limited by law to any particular period. (25 Op. Atty. Gen., 258. See sec. 181, R. S., and note.) Form of appointment. — A temporary ap- pointment during a recess of the Senate need not be made in any prescribed form. A com- munication from the Secretary of War informing the recipient that he has been aj)pointed an officer of the Army liy the President is sufficient, and answers the purpose of a commission if a commission is necessary. (O'Shea v. U. S., 28 Ct. Cls., 392.) Effect of temporary appointinent. — Where the term of an officer, such as the chief of a bureau in the Navy Department, is limited by law to four years (see sec. 421, R. S.), the period during which the appointee serves under an ad interim ajipointment by the President is not counted, but the four years do not com- mence to run until the appointment has been made with the advice and consent of the Senate, even though the nomination is worded to take effect from the date of the ad interim appoint- ment. (16 Op. Atty. Gen., 648.) 99 Art. II, Sec. 3. Ft. 1. THE CONSTITUTION. Commissions. Teniporai-y appointment not accepted. — A recess commiH.siou which was iiul accepted, and was iherel'ore never of any practical effect, should not bo accepted after the ai)i>(iintnient has been conlirmed by the Senate, but nliould be pir(kHl and a perman(>nt commission issued in the usual manner. (File 8G22-2, Feb. 10, 1908; eee also 2 Op. Atty. Gen., 336; U. S. v. Kirkpatrick, 9 Wheat., 721.) Vacancy may be filled during recess, although it existed while Senate was in session. — "If we interpret the word 'happen' as being merely equivalent to 'happen to exist' (aa I ihink we may legitimately do), then all vacancies which, from any casualty, nappen to exist at a time when the Senate can not be con- sulted as to filling them, may l)e temporarily filled by the President ;_ and the whole pur])ose of the Constitution is completely accom- plished." (1 Op. Atty. Gen., 631; see also Matter of Farrow, 3 Fed. Rep., 115.) Accord- ingly, the President has power to fill not only vacancies which originated in the recess of the Senate, biit also vacancies which existed while the Senate was in session. (16 Op. Atty. Gen., 522; see also 12 Op. Atty. Gen., 449.) "Mr. Wirt in 1823, Mr. Taney in 1833, and Mr. Legare in 1841, concur in oj^inion that vacancies first occurring during the session of the Senate may be filled by the President in the recess." (12 Op. Atty. Gen., 33.) "If the question were new, and now for the first time to be considered, I might have serious doubts of your constitutional power to fill up the vacancy, by temporary appointment, in the recess of the Senate. But the question is not new. It is settled in favor of the power, so far at least as a constitTitional question can be settled, by the continued practice of your predecessors, and the reiterated opinions of mine, and sanc- tioned, as far as I know or believe, by the unbroken acquiescence of the Senate." (10 Op. Atty. Gen., 356.) Where an office was created by Congress, to be filled by and with the advice and consent of the Senate, but was not filled during the session in which it was created, the President has power to make a recess appointment thereto after the Senate adjourns. (26 Op. Atty. Gen., 234; see also 19 Op. Atty. Gen., 261; Inre Yancey, 28 Fed. Rep., 445; compare file 6288-2, Mar. 29, 1907.) Where the Senate fails or refuses to confirm the President's nominee, and the President durinron(l article that we are to k)ok for cessions of territory and of exchisive jurisiliction. It is to be observed that the power of exchisivo le;j;ishition (which is jurisdiction) is united with cession of territory which is to be the free act of the States. It is diliicult to com- pare the two sections together without feeling a conviction, not to be strengthened by any com- mentary on them, that in descri hing the judicial power the framers of our Constitution had not in view any cession of territory, or which is essentially the same, of general jurisdiction. It is not questioned that whatever may be neces- sary to the full and unlimited exercise of ad- miralty and maritime jurisdiction is in the government of the Union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power. .Still the general jurisdiction over the place sub- ject to this grant of power adheres to the terri- tory as a portion of the sovereignty of the State not yet given away. Accordingly, under a Federal law providing for the punishment of murder committed on the high seas, or in any river, haven, basin, or bay out of the jurisdiction of any particular State, it was held that murder committed on board a warship of the United States in Boston Harbor was not cognizable by the Federal courts, as the waters of the harbor were within the jurisdiction of the State of Mas- sachusetts. (U. S. V. Bevans, 3 Wheat., 336.) [Clause 2. Jurisdiction of Supreme Court.] ^ In all Cases affecting Am- bassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have origmal Jurisdiction. In all the other Cases before mentioned, the supreme Court shaU have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [Clause 3. Jury trials; places of holding.] ^ The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shaU be held in the State where the said Crimes shall have been committed ; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. See note to Article I, section 8, clause 14, "Trials by jury not required in the Navy; and Amendments, Article VI, "Jury trial." Section 3. [Clause 1. Treason defined; evidence required to convict.] ^ Treason against the United States, shall consist only in levying War against them, or, in adhering to their Enemies, giving them Aid and Comfort. No Person shaU be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. War must be actually levied against the United States. — ''However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war and actu- ally to levy war are distinct offenses. * * * It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms again^st his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, how- ever minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. * * * It is, therefore, more safe, as well as more consonant to the principles of our Constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the Constitutional delinition should re- ceive such punishment as the legislature in its wisdom may provide." (Ex parte Bollman, 4 Cranch, 75; see also U. S. v. The Insurgents, 2 Dall., 335; U. S. v. Mitchell, 2 Ball., 348: U. S. v. Burr, 4 Cranch, 469. 25 Fed. Cas. No. 14692; U. S. V. Hoxie, 26 Fed. Cas. No. 15407.) Foreigner may be guilty. — "As a foreigner domiciled in the country he was bound to obey all the laws of the United States not immedi- ately relating to citizenship, and was equally amenable with citizens to the penalties pre- scribed for their infraction. He owed allegiance to the government of the country so long as he resided Avithin its limits, and can claim no ex- emption from the statutes passed to punish treason, or the giving of aid and comfort to the insiugent states. The law on this subject is well settled and universally recognized." (Radich v. Hutcliins, 95 U. S., 210; see also CarUsle v. U. S., 16 Wall., 147; U. S. v. Villato, 2 Dall., 370.) Statutory definition. — "Whoever, owing allegiance to the United States, levies Avar against them or adheres to their enemies, giv- ing them aid and comfort Avithin the United States or elsewhere, is guilty of treason." (Sec. 1, Criminal Code, act Mar. 4, 1909, 35 Stat., 1088.) [Clause 2. Punishment of treason.] ^ The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. 106 Extradition. Pt. 1. THE CONSTITUTION. Art. IV, Sec. 2. Punishment. — "Whoever ia convicted of treason shall suffer death; or at the discretion of the court, shall be imprisoned not less than five years and lined not less than ten thousand dol- lars, to be levied on and collected out of any or all of his property, real and personal, of which he was the owner at the time of committing such treason, any sale or conveyance to the contrary notwithstanding; and every person so convicted of treason shall, moreover, be in- capable of holding any office under the United States." (Sec. 2, Criminal Code, Act Mar. 4, 1909, 35 Stat., 1088; see also sec. 1624, R. S., art. 4.) ARTICLE IV. Section 1. [Full faith and credit between States as to public records, etc.] Full Faith and Credit shall be given in eacli State to the pubhc Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceed- ings shall be proved, and the Effect thereof. Section 2. [Clause 1. Privileges and immunities of citizens.] ^ Tlie Citi- zens of each State shaU be entitled to aU Privileges and Immunities of Citizens in the several States. [Clause 2. Extradition between States.] - A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. Persons in Navy. — There is no act of Con- gress authorizing a call by the governor of a State for the siu-render of an officer of the Navy charged with having broken the peace of such State, nor any law authorizing an arrest by the Executive with a view to a forcible surrender by him for the purposes of trial. (1 Op. Atty. Gen., 244. See also note to Art. I, sec. 8, clause 13, "Exemption of Federal officers and sub- ordinates from arrest by State authorities;" Art. I, sec. 8, clause 14, "Jurisdiction of civil au- thorities over persons in military and naval service;" and note to sec. 355, R. S.) In the absence of legal provision for delivery to the civil authorities of a State of persons in the military service, on original demand made upon the President, it rests in "the discretion of the President in what cases he will exercise his military authority over the citizens composing the Army to constrain them to 8iu*render them- selves to the civil authorities of the States." The President in such cases may properly adopt, by analogy, the principle of the Consti- tution relative to the surrender of fugitives by the governors of the States, applying the details of the statute enacted thereunder, "so far as to require the demand to be made by tlie governor of the State or Territory to which the complainant belongs, on the copy of an indictment found or an affidavit made specify- ing the particular offense and authenticated as by that act is provided." (2 Op. Atty. Gen., 12.) Should the civil authorities undertake collu- sively to obstruct or impede the military authorities in the exercise of their just and appropriate jurisdiction of a charge in its mili- tary relations, it would be the bounden duty of the military authorities to maintain their jirrisdiction and to yield it only to an order of the President for good cause or to the ultimate decision of the law by the Supreme Court of the United States. (6 Op. Atty. Gen., 413, 429.) In cases where a person in the Navy is desired by State authorities for trial upon criminal charges the Secretary of the Navy in practice authorizes his surrender by the immediate commanding officer of the man upon presen- tation of warrant in due form and proper hands, provided that the man concerned is not a naval prisoner and satisfactory assurances are given as to his return without expense to the United States when the proceedings against him are completed, provided his return is then desired by the naval authorities. This applies to cases where the man is serving at a navy yard or other place within the limits of the State which desires his surrender. In other cases— that is, where the man is outside the State— "requisi- tion for the delivery of the party must be made by the governor or chief executive of such State, addressed to the Secretary of the Navy, show- ing that the party desired is charged with a crime in that State for which be could be ex- tradited under the Constitution of the United States, the enactments of Congress, and the laws of the State desiring his delivery." (See G. O. No. 121, Navy Dept., Sept. 17, 1914, which con- tains detailed instructions concerning the deliv- ery of men to civil authorities; see also sec. 5278, R. S., as to interstate extradition of fugi- tives from justice.) [Clause 3. Persons held to service or labor.] ^No Person held to Service or Labour in one State, under the Laws thereof, escapmg into another, shall, in Consequence of any Law or Regulation therein, be discharged from such 54641°— 22- 107 Art. IV, Sec. 3. PL 1. THE CONSTITUTION. Territories. I. II. III. Power of Congress Over Territory. Government of Ceded and Conquered Territory. Military Governor's Power in Ab- sence OF Legislation. IV. Status of; Insular Possessions. V. Application of Constitution to Terri- tories. VI. Status of Inhabitants of Insular Possessions. Service or Labour, but shall be dolivered up on Claim of the Party to whom such Service or Labour may be due. Section 3. [Clause 1. Admission and formation of new States.] ^ New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. [Clause 2. Power of Congress over territory and other property.] ^ The Congress shall have Power to dispose of and make all needful Rules and Regula- tions respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of amy particular State. "The power of Congress over the territories of the United States is * * * general and plenary, arising from and incidental to the right to acquire the territory itself and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property of the United States. It would be absurd to hold that the United States has the power to acquire territory and no power to govern it when acqiiired." (Late Corporation of the Church of Jesus Christ v. U.S., 136U. S.,1.) "Tlie power there given [Art. IV, sec. 3, clause 2], whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to or was claimed by the United States, and was within their boundaries as stated by the treaty with Great Britain, and can have no influence upon a terri- tory afterwards acquii'ed from a foreign Govern- ment. It wag a special provision for a known and particular territory and to meet a present emergency and nothing more. A brief sum- mary of the history of the times, as well as the careful and measured terms in which the article is framed, will show the correctness of this proposition." (Scott t). Sandford, 19 How., 393; opinion of Chief Justice Taney.) "There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States, or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way except by the admission of new States. * * * But no power is given to acquire a territory to be held and governed permanently in that character. * * * It is acquired to become a State and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the Government and not the judicial; and whatever the political department of the Government shall recognize as within the limits of the United States the judicial department is also bound to recognize I. Power of Congress Over Territory. Sources of power to govern territories. — "The term territory as here used is merely descriptive of one kind of property and is equivalent to the word lands. And Congress has the same power over it as over any other property belonging to the United States; and tliis power is vested in Congress without limita- tion, and has been considered the foundation upon which the territorial governments rest." (U. S. V. Gratiot, 14 Pet., 526.) "The power of Congress to organize terri- torial governments and make laws for their inhabitants arises not so much from the clause in the Constitution in regard to disposing of and making rules and regulations concerning the territory and other property of the United States as from the ownership of the country' in which its territories are, and the right of ex- clusive sovereignty ■which must exist in the National Government and can be found nowhere else." (U. S. V. Kagama, 118 U. S., 375.) The power to govern "is an authority which arises not necessarily from the territorial clause of the Constitution but from the necessities of the case and from the inability of the States to act on the subject." (De Lima v. Bidwell, 182 U. S.,1.) "The power of governing and legislating for a territory is the inevitable consequence of the right to acquire and hold property. Could tliis possibly be contested, the Constitution of the United States declares that 'Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States.'" (Sere v. Pitot, 6 Cranch, 332; see also American Ins. Co. v. Canter, 1 Pet., 511.) 108 Territories. Pt. 1. THE CONSTITUTION. Sec. IV, Art. 3. and to administer in it the laws of tlie United States so far as they apply, and to maintain in the territory the authority and rights of the Government and also the personal rights and rights of property of the individual citizens as secured by the Constitution. All we mean to say on this point is that, as there is no express regulation in the Constitution defining the power which the General Government may exercise over a person or property of a citizen in a territory thus acquired, the court must necessarily look to the provisions and princi- ples of the Constitution and its distribution of powers for the rules and principles by which its decision must be governed." (Scott v. Sandford, 19 How., 393; opinion of Chief Justice Taney.) II. Government of Ceded and Conquered Territory. Government of conquered territory dur- ing war. — See note to Article I, section 8, clause 11. Government of conquered and cededi;er- ritory after war. — The government estab- lished by the military commanders, by author- ity of the President as Commander-in-Chief, in upper California, which was conquered by the United States forces during the War with Mex- ico, lawfully continued in existence after the treaty of peace by which the territory was for- mally annexed to the United States, and until Congress had legislated for its government. "The territory had been ceded as a conquest, and was to be preserved and governed as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congi-ess to dispose of and make all needful rules and regulations re- specting the territory or other property belong- ing to the United States, with power also to admit new States into this Union, with only such limitations as are expressed in the section in which this power is given. The government of which Col. Mason was the executive, had its origin in the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by the command of the President of the United States. It was the gov- ernment when the territory was ceded as a con- quest, and it did not cease, as a matter of course, or as a necessary consequence of the restoration of peace. The President might have dissolved it by withdra%ving the Army and Navy officers who administered it, but he did not do so. Con- gress could have put an end to it, but that was not done. The right inference from the inac- tion of both is, that it was meant to be continued until it had been legislatively changed. No presumption of a contrary intention can be made. WTiatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the Govern- ment. And the more so as it was continued un- til the people of the territory met in convention to form a State government, which was subse- quently recognized by Congi'ess under its pow- ers to admit new States into the Union . ' ' (Cross V. Harrison, 16 How., 164.) "The opinion [Cross v. Harrison] which is a long one, establishes the three following propo- sitions: (1) That under the war power the mili- tary governor of California was authorized to prescribe a scale of duties upon importations from foreign countries to San Francisco and to collect the same through a collector appointed by himself until the ratification of the treaty of peace. (2) That after such ratification du- ties were legally exacted under the tariff laws of the United States, which took effect imme- diately. (3) That the civil government estab- lished in California continued from the neces- sities of the case until Congress provided a Territorial government." (De Limai). Bid well, 182 U.S., 1.) "We have no doubt, however, that from the necessities of the case, the right to administer the government of Porto Rico continued in the military commander after the ratification of the treaty and until further action by Congress." (Eooley v. U. S., 182 U. S., 222.) "By the ratification of the treaty of peace, Porto Rico ceased to be subject to the Crown of Spain and became subject to the legislative power of Congress. But the civil government of the United States can not extend immedi- ately and of its own force over conquered and ceded territory. Theoretically Congress might prepare and enact a scheme of civil government to take effect immediately upon the cession, but practically there always have been delays and always will be. Time is required for a study of the situation and for the matiuing and enacting of an adequate scheme of civil govern- ment. In the meantime, pending the action of Congi-ess, there is no civil power under our sys- tem of government, not even that of the Presi- dent as ciAT.1 executive, which can take the place of the government which has ceased to exist by the cession. Is it possible that under such circumstances there must be an interreg- num? We think cleai'ly not. The authority to govern such ceded territory is found in the laws applicable to conquest and cession. That authority is the military power under the con- trol of the President as Commander in Chief." (Santiago v. Nogueras, 214 U. S., 260.) Guam and Tutuila. — "The political status of these islands is anomalous. Neither the Con- stitution nor the laws of the United States have been extended to them, and the only adminis- trative authority existing in them is that de- rived mediately or immediately from the Presi- dent as Commander in Chief of the Army and Navy of the United States. On December 23, 1898, the President placed the island of Guam under the control of the Department of the Navy with direction that the Secretary 'will take such steps as may be necessary to establish the authority of the United States and to give it the necessary protection and government'; and in pursuance of the authority thus conferred the then Secretary appointed a naval officer as 'naval governor of the island of Guam, this duty being in addition to yoiu" (his) duty as com- mander of a division of the Asiatic Fleet.' And on February 19, 1900, the President likewise turned over to your [Navy] department the control of the island of Tutuila and the other islands of the Samoan group belonging to the United States, for the purposes of a naval sta- tion. A naval officer was detailed by the Sec- retary to assume command of such station, the 109 Art. IV, Sec. 3. Pt. 1. THE CONSTITUTION. Territories. order concludinG; as follows: 'Your position as coinmaiulaiit will invest you with authority over the islands in the group within the limits of the station. ' In the one case, therefore, a naval governor was apjiointed, and in the other the commandant was invested with guberna- torial functions over the islands in the group embraced within tlie limits of the station. ' (25 Op. Atty. Gen., 292, holding that commis- sions m the usual form may bo issued by the President to the naval officers serving as gov- ernors of these islands; see also 25 Op. Atty. Gen., 59, 128, 242.) "Guam is an unorganized territory of small extent, concerning which Congress has ab- stained from legislating almost wholly; * * * Congress will doubtless, at the proper time, take up the subject and legislate for Guam, either by special laws fitted to its situation and condition, or by extending to it, as it did in the case of Alaska, Porto Rico, and Hawaii, the general laws of the United States not locally inappli- cable." (25 Op. Atty. Gen., 128; see also An- nual lleport of Secretary of the Navy, 1907, pp. 25, 2G, recommending that Congress by legis- lation provide a system of government for these islands.) In Guam "a complete government has been instituted and conducted by the Navy Depart- ment through an officer of the Navy appointed as governor by the Secretary and commissioned by the President under an order of President McKinley * * *. This order was dated December 23, 1898, and of course was an exer- cise of the war power, and the executive gov- ernment thus established seems to have sur- vived and continued since the ratification of the treaty, with the silent acquiescence of Con- gress, in accordance with the doctrine that a temporary and provisional government of this nature continues ex necessitate rei until further action by Congress. (Dooley v. United States, 182 U. S., 222, citing Cross i;. Harrison, 16 How., 164.) The Guam government did not grow out of a military reservation, but was a military government of the entire island in consequence of occupation and conquest from Spain." (26 Op. Atty. Gen., 98.) The Supreme Court of the District of Colum- bia has no jurisdiction in a habeas corpus pro- ceeding instituted against the Secretary of the Navy to inquire into the grounds of the deten- tion of a person in the island of Guam pursuant to the sentence of the civil court established in that island. "We are compelled to give a neg- ative answer to the question, notwithstanding it may possibly be that the party on whose be- half the petition is presented is restrained of his liberty under the order of a tribunal un- known to the Constitution and law, and is with- out certain remedv in any other com-t." (Mc- Gowan v. Moody, 22 App. D. C, 148.) Guam having been ceded to the United States by the Treaty of Paris of December 10, 1898, was necessarily governed by the military power of this country because the island has never been organized as a Territory. Those acts of Congress which provide for the punish- ment of offenses not specially provided for by any law of the United States and which also provide for the trial of such offenses in courts of the United States Territories provided with organized Territorial government do not ex- clude the exercise of the military authority to punish offenders bv virtue of the regulations. (Woog V. U. S.,48Ct. Cls., 80.) The existing governments in Guam and Samoa have been recognized by Congress in various enactments, as, for example, the act of June 28, 1906 (34 Stat., 552), providing for the acknowledgment of deeds, etc., affecting lands in the District of Columbia or any territory of the United States. III. Military Governor's Power in Ab- sence OF Legislation. Authority of military commander. — "It is a general rule of public law, recognized and acted upon by the United States, that when- ever political jinisdiction and legislative power over any territory are transferred from one na- tion or sovereign to another, the municipal laws of the country — that is, laws which are intended for the protection of private rights — continue in force until abrogated or changed by the new government or sovereign. * * * As a matter of course, all laws, ordinances, and regulations in conflict with the political character, institu- tions, and constitution of the new government are at once displaced. Thus * * * the laws of a countrj' in support of an established re- ligion or abiddging the freedom of the press, or authorizing cruel and luiusual punisliments and the like would at once cease to be of ol^ligatory force, mthout any declaration to that effect; and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the same matters. But with respect to other laws, affect- ing the possession, use, and transfer of property and designed to secure good order and peace in the community and promote its health and prosperity, wliich are strictly of a municipal character, the rule is general that a change of government leaves them in force until by direct action of the new government they are" altered or repealed." (Cliicago, etc., R. Co. v. McGlinn, 114 U. S., 547.) [The joint resolution of Congress pro\dding for the annexation of the Hawaiian Islands as a part of the territory of the United States con- tained a prov-ision that "the municipal legis- lation of the Hawaiian Islands * * * not inconsistent with this joint resolution nor con- trary to the Constitution of the United States, nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine." Held, that the laws of Hawaii continued in effect, which pro\'ided for the trial of criminal offenses without compliance wdth the require- ments of the Federal Constitution as to present- ment and indictment by grand jury and trial by jury. (Hawaii v. Mankichi, 190 U. S., 197.)] "\\Tiile his [military commander's] power is necessarily despotic, this must be understood rather in an admin istratiA'e than in a legislative sense. ^Miile in legislating for a conquered ter- ritory he may disregard the laws of that country, lie is not wholly above the laws of his owii. For instance, it is clear that wliile a military commander dining the Civil War was in occupa- 110 Territories. Pt. 1. THE CONSTITUTION. Art. IV, Sec. 3. tion of a Southern port he could impose duties upon merchandise arriving from abroad, it would hardly be contended that he could also impose duties upon merchandise arriving from ports of his own country. His power to admin- ister would be absolute, but his power to legis- late would not be without certain restrictions— in other words, they would not extend beyond the necessities of the case." (Dooley v. U. S., 182 U. S.,222.) "The authority of the President as Com- mander in Chief to exact duties upon imports from the United States [into Porto Rico] ceased with the ratification of the treaty of peace, and her right to the free entry of goods from the Ijorts of the United States continued until Con- gres.s should constitutionally legislate upon the subject." (Dooley v. U. S., 182 U. S.,~236.) An order issued by the officer in command of the forces of the United States in South Carolina during the period of reconstruction, wholly an- nulling a decree rendered by a court of chancery in that State in a case within its jurisdiction, was void. It was an arbitrary stretch of author- ity, needful to no good end that can be im- agined. Whether Congress could have con- ferred the power to do such an act is a question not presented. "It is an unbending rule of law that the exercise of miUtary power where the rights of the citizen are concerned shall never be pushed beyond what the exigency requires." (Raymond v. Thomas, 91 U. S., 712.) "The instructions to the governor [of Guam], dated January 12, 1899, prior to the ratification of the treaty of peace with Spain, contained the following: 'Within the absolute domain of naval authority, which necessarily is and must remain supreme in the ceded territory imtil the legislation of the United States shall otherwise provide, the municipal laws of the territory, in respect to private rights and property and the repression of crime, are to be considered as con- tinuing in force and to be administered by the ordinary tribunals as far as practicable. The operations of civil and municipal government are to be performed by such officers as may accept the supremacy of the United States by taking the oath of allegiance or by officers chosen as far as may be practicable from the inhabitants of the island.' These instructions seem not to have been superseded in June and July, 1900. Their recognition of the continu- ance in force of the munici])al laws of the terri- tory was not intended as more than a recogni- tion of what would have been presumed in the absence of instructions and can not be regarded as intended to deny the power of the governor to alter the laws. _ They were continued in force as to the inhabitants among themselves, but not to control the governor; that is to say, the government itself. His power as military gov- ernor was intended to be plenary. He had authority to do what the exigencies of military government required, and held the supreme legislative, executive, and judicial authority of the island. At that time, in that distant and little-known island, the President could not do otherwise than leave him a large discretion, and his acts should not be held void upon strictly technical reasoning." (25 Op. Atty. Gen., 59.) The naval governor of Guam "exercises ple- nary powers, sul^ject to the supervision of the Secretary of the Navy and, of course, of the President, over all public affairs of the island of Guam, including the organization and pro- cedure of the local courts in civil and criminal matters;" his authority extends "to the grant- ing of reprieves and pardons, one of the highest prerogatives of sovereignty and executive power," and includes "the modification of laws and the abolition and institution of courts;" he "has authority to prescribe the form of penal code to be administered and to modify said code at his pleasm-e, subject to the approval of his superiors." (File 9351-976, Dec. 3, 1910.) In a case in which an enlisted man of the Marine Corps was sentenced by the civil courts in Guam to "banishment for six months," this being an undesirable punishment to impose upon members of the Government forces, the governor of Guam may be directed by the Sec- retary of the Navy to remit that portion of the sentence in the case presented and "to issue immediately the necessary order or decree abolishing the punishment of banishment as an appropriate sentence to be adjudged by the civil courts of said island in the cases of all persons in the naval or military service of the United States." (File 9351-976, Dec. 3, 1910.) In the absence of congressional legislation, authority of the naval governor of Guam is supreme. He is accordingly authorized to des- ignate place of confinement for prisoner of the naval government of Guam, within territory under sovereignty of the United States. His action in designating a prison in the Philippine Islands as place of confinement meets with approval of the Secretary of the Navy in the case of a civilian convicted by the courts of Guam of misappropriation of pul^lic funds while postmaster at Guam. (File 9351-1436:4, June 3, 1915.) IV. Status of Insular Possessions, Status of conquered and ceded territory after war. — Military possession of foreign ter- ritory is not of itself sufficient to change its foreign character. (See cases noted undei Art. I, sec. 8, clause 11, "Power to acquire territory.") "Nor is a treaty ceding such ter- ritory sufficient without a surrender of posses- sion." But there is no authority "for holding that a district ceded to and in the possession of the United States remains for any purpose a foreign country. Both these conditions must exist to produce a change of nationality for revenue purjwses." (De Lima v. Bid well, 182 U. S., 1, as to status of Porto Rico; see also Dooley v. U. S., 182 U. S., 236; and Downes v. Bidwell, 182 U. S., 263.) "The theory that a country remains foreign with respect to the tariff laws until Congress has acted by embracing it within the customs union presupposes that a country may be domestic for one purpose and foreign for an- other. It may undoubtedly become necessary for the adequate administration of a domestic territory to pass a special act providing the proper machinery and officers, as the President would have no authority, except under the war power, to administer it himself; but no act is necessary to make it domestic territory if once 111 Art. IV, Sec. 3. PL 1. THE CONSTITUTION. Territories. it has been ceded to the United States." (De Lima r. Bidwell, 182 U. S., 1.) "Tlie rhilipj)ines, like Porto llico, became by virtue of the treaty ceded conquered terri- tory, or territory ceded by way of indemnity. Tlie territory ceased to be situated as Castine was when occupied by the British forces in the '.Var of 1812, or as Tanipico was when occupied by the troops of the United States (hiring the Mexican ^\'ar, 'cases of temporary possession of territory by hiwful and regular governments at war with the country of which tlie territory so possessed was a part.' * * *. The Phil- ippines were not simply occupied, but ac- quired, and, having been granted and delivered to the United States by their former master, were no longer under the sovereignty of any foreign nation." (Fourteen Diamond Rings v. U. S., 183 U. S., 177; see also Lincoln v. U. S., 197 U. S.,427.)_ A port in the island of Guam is not a "port of the United States" within the meaning of sec- tion 4347, Revised Statutes, as amended, pro- hibiting the transportation of merchandise in foreign bottoms from one port of the United States to another port of the United States. This legislation has not been expressly ex- tended to include trade with Guam, which is an unorganized territory of small extent, concern- ing which Congress has abstained from legis- lating almost entirely; "and I do not think, in view of this inaction of the legislative body, that we should search among old statutes for fragments of law which we can, by construc- tion, apply to the island." (25 Op. Atty. Gen., 128.) V. Application of Constitution to Terri- tories. Whether constitutional limitations re- strict Congress in legislating for Territo- ries. — "The people of the United States, as sovereign owners of the National Territories, have supreme power over them and their inhabitants. In the exercise of this sovereign dominion they are represented by the Gov- ernment of the United States, to whom all the powers of government over that subject have been delegated, subject only to such restric- tions as are expressed in the Constitution, or are necessarily implied in its terms, or in the purposes and objects of the power itself; for it may well be admitted in respect to this as to every power of society over its members, that it 18 not absolute and unlimited." (Mur- phy V. Ramsey, 114 U. S., 15.) "Doubtless Congress, in legislating for the Territories, would be subject to those funda- mental limitations in favor of personal rights which are formulated in the Constitution and its amendments; but these limitations would exist rather by inference and the general spirit of the Constitution, from which Congress derives all its powers, than by any express and distinct application of its provisions." (Mormon Church Case, 136 U. S., 1; American Publishing Co. v. Fisher, 166 U. S., 464.) "WTiile, therefore, there is no express or implied limitation on Congress in exercising its power to create local governments for any or all of the Territories, by which that body is restrained from the widest latitude of dis- cretion, it does not follow that there may not be inherent, although unexpressed, principles which are the basis of all free governments, which can not bo with immunity transcended. * * * But this does not suggest that every express limitation of the Constitution which is applicable has not force, but only signifies that even in cases where there is no direct command of the Constitution which applies, there may nevertheless be restrictions of so fundamental a nature that they can not be transgressed, although not expressed in so many words in the Constitution." (Downes v. Bid- well, 182 U. S., 244.) " LFndoubtedly there are general prohibitions in the Constitution in favor of the liberty and property of the citizen, which are not mere regulations as to form and manner in which a conceded power may be exercised, but which are absolute denials of all authority under any circumstances or conditions, to do particular acts. In the nature of things, limitations of this character can not, under any circumstances, be transcended, because of complete absence of power." (Downes v. Bidwell, 182 U. S., 244.) "There is a clear distinction between such prohibitions as go to the very root of the power of Congress to act at all, irrespective oi time and place, and such as are operative only 'throughout the United States,' or among the several States. Thus, when the Constitution declares that 'no bill of attainder or ex post facto law shall be passed,' and that 'no title of nobility shall be granted by the United States,' it goes to the competency of Congress to pass a bill of that description. Perhaps the same remark may be applied to the fifth amend- ment, that 'Congress shall make no law respect- ing an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech; or of the press; or the right of the people to peacefully assemble and to petition the Government for a redress of grievances.' We do not wish, however, to be understood as expressing an opinion how far the Bill of Rights contained in the first eight amendments is of general and how far of local application. * * * We suggest, without intending to decide, that there may be a dis- tinction between certain natural rights enforced in the Constitution by proliibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own con- science; the right to personal liberty and indi- vidual property, to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and un- usual punishments; and to such other immu- nities as are indispensable to a free govern- ment." (Downes v. Bidwell, 182 U. S., 244, opinion Mr. Justice Brown.) 112 Territories. Ft. 1. THE CONSTITUTION. Art. IV, Sec. 3. To hold that the prohibitions of the fourth amendment, against imreasonable searches and seizures, is a restriction upon Congress and yet not a restriction upon a government created by Congress, would be a contradiction of terms. Accordingly, held that tlie fourth amendment is applicable to territorial governments. (Ter- ritory V. Cutinola, 4 N. Mex., 305, 14 Pac, 809.) "AMiatever may be finally decided by the American people as to the status of these is- lands and their inhabitants — whether they shall be introduced into the sisterhood of States or be permitted to form independent governments- it does not follow that in the meantime, await- ing that decision, the people are in the matter of personal rights unprotected by the pro\isions of our Constitution and subject to the nierely arbitrary control of Congress. Even if re- garded as aliens, they are entitled, under the principles of the Constitution, to be protected in life, liberty, and property. Tlus has been frequently held by tliis court in respect to the Chinese, even when aliens, not possessed of the political rights of citizens of the United States. * * * We do not desire, however, to antici- pate the difficulties which would naturally arise in this connection, but merely to disclaim any intention to hold that the inhabitants of these territories are subject to an unrestrained power on the part of Congress to deal with them upon the theory that they have no rights which it is bound to respect." (Downes •?;. Bidwell, 182 U. S., 244, opinion Mr. Justice Brown.) "The Constitution speaks, not simply to the States in their organized capacities, but to all peoples, whether of States or Territories, who are subject to the authoritv of the United States." (Downes v. Bidwell, 182 U. S., 244, opinion Mr. Justice Harlan, dissenting.) "There is nothing in the history of the Con- stitution or of the original amendments to justify the assertion that the people of this dis- trict [District of Columbia] may be lawfully deprived of the benefit of any of the constitu- tional guaranties of life, liberty, and property — especially of the privilege of trial by jury in criminal cases." (Callan v. Wilson, 127 U. S., 540; see also Capital Traction Co. v. Hof, 174 U. S., 5.) SeeRassmussenv.U. S. (197U.S., 522), hold- ing the provisions of the Constitution appli- cable to Alaska; Neely v. Henkel (180 U. S., 122), holding Constitution not applicable to Cuba during military occupation by United States; Hawaii v. Mankichi (190 U. S., 211), as to Hawaii, holding that "'most, if not all, the pri\'ileges and immunities contained in the Bill of Rights of the Constitution were intended to apply from the moment of annexation;" see also Dorr r. U. S. (195 U. S., 138) as to Philip- pines; and Reynolds v. U. S. (98 U. S., 145) and Wilkerson v. Utah (99 U.S., 133) as to Territory of Utah. By section 1891, Revised Statutes, it was provided that "The Constitution and all laws of the United States which are not locally inap- plicable shall have the same force and effect within all the organized Territories, and in every Territory hereafter organized, as else- where within the United States." ["Guam is an unorganized territory * * *." (25 Op. Atty. Gen., 128.) So also are the Virgin Is- lands of the United States, notwithstanding the act of March 3, 1917 (39 Stat., 1132), pro- viding a temporary government therefor. (32 Op. Atty. Gen., 118, construing sec. 1860, R. S., as amended.)] When the Constitution has once been form- ally extended by Congress to Territories, neither Congress nor the Territorial legislature can enact laws inconsistent therewith. (Downes v. Bid- well, 182 U. S., 270.) For decisions as to whether constitutional limitations restrict Congress in legislating for the Na^'y, see note to Article 1, section 8, clause 14. VI. Status of Inhabitants of Insular Possessions. Citizenship in territories. — The treaty of peace with Spain, ceding to the United States Porto Rico, Guam, and the Philippine Islands, provided that "the civil rights and political status of the native inhabitants of the terri- tories hereby ceded to the United States shall be determined by Congress." The inhabitants of the Philippine Islands were declared "citi- zens of the Philippine Islands and as such en- titled to the protection of the United States." (Act July 1, 1902, 32 Stat., 691.) The inhabit- ants of Porto Rico were declared "citizens of Porto Rico and as such entitled to the protec- tion of the United States." (Act Apr. 12, 1900, 31 Stat., 77.) The naturalization act of June 29, 1906, section 30 (34 Stat., 606), provided for the naturalization, upon compliance therewith, of persons "not citizens who owe permanent alle- giance to the United States." Inhabitants of Guam desiring to become citizens of the United States may be naturalized by application to a court of competent jurisdiction in the United States, but can not be naturalized by any court in Guam. (File 262.52-90, Feb. 27, 1914, see also file 26252-96, Feb. 10, 1915; compare 29 Op. Atty. Gen., 521, as to Porto Rico, and see note to amendments, Article XIV.) The citizen.'? of Hawaii were made citizens of the United States by act of April 30, 1900 (31 Stat., 141). A citizen of Porto Rico is not eligible for appointment as second lieutenant in the Marine Corps (file 6730-04; as to eligibility for employ- ment at navy yards, see file 3194-3 and 3194-4; and seeU. S. v. Bowyer, 25 App. D. C, 121.) By act of March 2, 1917 (39 Stat., 953, sec. 5), certain "citizens of Porto Rico " were de- clared citizens of the United States and pro- vision was made for the naturalization of others. Certain Danish citizens residing in the Vir- gin Islands of the United States were to be held "to have accepted citizenship in the United States," and provision was made for the naturalization of others by convention be- tween the United States and Denmark, pro- claimed January 25, 1917 (39 Stat. 1706, 1712). (See file 26252-143:3, July 14, 1919.) Native inhabitants of island possessions are not "aliens." — "Citizens of Porto Rico, whose permanent allegiance is due to_ the United States; who live in the peace of the dominion of the United States; the organic law 113 Art. VI. PL 1. THE CONSTITUTION. Validity of Debts. of whose domicile was enacted by the United States and is enforced through officials sworn to support the Constitution of the United States, are not 'aliens' and upon their arrival by water at the ports of our mainland are not 'alien immigrants' within the intent and mean- ing of the act of 1891" providing for detention and deportation under certain conditions. (Gonzales v. Williams, 192 U. S., 1.) Naturalization of natives. — "Citizens of the Philippine Islands or of Porto Rico, while not citizens of the United States, are not aliens, and, prior to the passage of the act of 1906 [34 Stat . , 596] , were not capable of being naturalized for two reasons: First, the naturalization laws of the United States applied only to aliens; and, second, they required a renunciation of former allegiance * * *, The effect of sec- tion 30 [act of 1906] was to make applicable to citizens of the Philippine Islands and Porto Rico those provisions which had theretofore applied only to aliens * * *. Congress did not intend to extend the privilege of citizen- ship to those who had become citizens of the Philippine Islands under the act of 1902, unless they were free white persons or of African nativity or descent," as required by section 2109, Revised Statutes. Accordingly, held that "a citizen of the Philippine Islands who ethno- logically was one-fourth white and three-fourths brown or Malay could not be naturalized," and the fact that he had service in the Navy did not affect his status under section 2169, Revised Statutes. (In re Alverto, 198 Fed. Rep., 688; see also note to amendments, Article XIV and see naturalization act of May 9, 1918.) For other cases, as to citizenship in gen- eral, see note to amendments, Article XIV. Section 4. [States guaranteed protection and republican form of govern- ment.] The United States shall guarantee to every State in this Union a Republi- can Form of Government, and shall protect each of them against Invasion; and on Apphcation of the Legislature, or of the Executive (when the Legis- lature cannot be convened) against domestic Violence. TJse of naval vessel loaned to State for training of naval militia. — "In accordance with the pro\dsions of the Constitution and of the laws enacted in pursuance thereof, the Presi- dent, incases not affecting the execution of the laws or the protection of the property of the United States, may use the military or naval forces of the United States within the boundaries of the several States only on application of the legislature of the State, or, in case the legislature cannot be convened, on application of the gov- ernor. In other words, it is considered that the President, except as indicated, is not legally authorized to use, or permit to be used, the naval forces under his command to assist any particular State in the maintenance of law and order within its boundaries. As a naval vessel is one of the integral and most important units going to make up the naval forces of the United States, it would seem that this proliibition to the use of the naval forces would extend to such an important part thereof as a naval vessel that is armed and equipped for war. * * * Should occasion ever arise in the future making desirable the use of the Montgomery for the pur- poses referred to by the State, [to quell "riots, insurrection, or defiance of civil law witliin the State limits " ] it is considered that the only law- ful manner in which the vessel could be so used would be in accordance with the provisions of the Constitution, upon 'application of the legis- lature or of the executive (when the legislature cannot be convened)' made to the President." (File 4570-194, Mar., 15, 1915.) ARTICLE V. [Procedure to amend Constitution,] The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Con- stitution, or, on the Application of the Legislatures of two-thirds of the several States, shall caU a Convention for proposing Amendments, which, in either Case, shall be vahd to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratifica- tion may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article ; and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate. ARTICLE VI. [Clause 1. Validity of debts and engagements.] ^ All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as 114 Ratification. Pt. 1. THE CONSTITUTION. Art. VII. valid against the United States under this Constitution, as under the Confed- eration. [Clause 2. Supreme law of the land.] ^ This Constitution, and the Laws of the United States which shaU be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [Clause 3. Oaths of public officers; no religious test.] ^ The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution ; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. ARTICLE VII. [Ratification of Constitution.] The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twehth. In Witness whereof We have hereunto subscribed our Names, Go WASHINGTON Presidt and deputy from Virginia New HampsMre. John Langdon Nicholas Oilman Massachusetts. Nathaniel Gorham Rueus Ejng Connecticut. Wm Saml Johnson ~ Roger Sherman New YorJc. Alexander Hamilton New Jersey. Wil: Livingston Wm Patterson David Brearley, Jona: Dayton Pennsylvania. B. Franexin Thomas Mifflin Robt. Morris Geo. Clymer Thos. Fitzsimons Jared Ingersoll James Wilson Gouv Morris 115 First Amendment. Geo: Read John Dickinson Jaco: Broom James McHenry Danl Carroll John Blair — Wm Blount Hu Williamson J. Rutledge Charles Pinckney William Few Attest: PL 1. THE CONSTITUTION. Delaware. Freedom of Speech. Gunning Bedford jun Richard Bassett Maryland. Dan: of St Thos Jenifer Virginia. James Madison Jr. North Carolina. RiCHD DOBBS SpAIGHT, South Carolina. Charles Cotesworth Pinckney Pierce Butler. Georgia. Abr Baldwin WILLIAM JACKSON, Secretary. Articles in Addition To, and Amendment Of, the Constitution of THE United States of America, Proposed by Congress, and Ratified by the Legislatures of the Several States, Pursuant to the Fifth Article of the Original Constitution. [ARTICLE I.] [Freedom of religion, speech, and press ; and right of assembly and petition.] Congress shall make no law respecting an establishment of religion, or pro- hibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The Bill of Rights.— "The law is perfectly well settled that the first 10 amendments of the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English an- cestors, and which had from time immemorial been subject to certain well recognized excep- tions arising from the necessities of the case." (Robertson v. Baldwin, 165 U. S., 275.) "These securities in personal liberty, thus embodied , were such as wisdom and experience had demonstrated to be necessary for the pro- tection of those accused of crime. * * * Time has proven the discernment of our ances- tors. * * * Those great and good men fore- saw that troublous times would arise when ruiers and people would become restive under restraint and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of Constitutional liberty would be in peril unless established by irre- pealable law. * * * The Constitution of the United States is a law for rulers and people, equally in war and in peace. * * * No doctrine involving more pernicious conse- quences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of govern- ment." (Ex parte Milligan, 4 Wall., 3, 120. But see note to Art. I, sec. 8, clause 11, "Mili- tary jurisdiction over civilians in time of war," and Art. I, sec. 9, clause 2.) 116 Searches and Seizures. Pt. 1. THE CONSTITUTION. Fourth Amendment. [ARTICLE II.] [The right to bear arms.] A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. reserved military' force of the National Govern- ment, as well as in view of its general powers, the State can not prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for main- taining the public security." (Presser v. Illi- nois, 116 U. S., 252.) "The provision of the Second Amend- ment to the Constitution, that 'the right of the people to keep and bear arms shall not be in- fringed,' is a limitation only on the power of Congress and the National Government, and not of the States. But in view of the fact that all citizens capable of bearing arms constitute the [ARTICLE III.j [Quartering of soldiers in houses.] Xo Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. [ARTICLE IV.] [Security from unreasonable searches and seizures.] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shaU issue, but upon probable cause, supported by Oath or affirmation, and particularly describ- ing the place to be searched, and the persons or things to be seized. Unreasonable searches and seizures. — "The constitutional guaranties of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail they can only be opened and examined under like warrant, issued upon similar oath or affirma- tion and particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle em- bodied in the fourth amendment of the Con- stitution." (Ex parte Jackson, 96 U. S., 727.) "Prison authorities have no right to open and inspect letters to or sent by prisoners without the consent of such prisoners. They may, how- ever, retain unopened letters until the prisoner is released or the letters otherwise lawfully dis- posed of." (Art. 68, Manual for Government of United States Naval Prisons. "l The fourth and fifth amendments "throw great light on each other. For the 'unreason- able searches and seizures' condemned in the fourth amendment are almost always made for the purpose of compelling a man to give evi- dence against himself, which in criminal cases is condemned in the fifth amendment; and compelling a man 'in a criminal case to be a witness against himself,' which is condemned in the fifth amendment, throws light on the question as to what is an ' imreasonable search and seizure' within the meaning of the fourth amendment. And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself." (Boyd v. U. S., 116 U.S., 633.) "The security intended to be guaranteed by the fourth amendment against wrongful search and seizures is designed to prevent violations of private security in person and property and unlawful invasion of the sanctity of the home of the citizen by officers of the law, acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted. But the English and nearly all of the American cases have declined to extend this doctrine to the extent of excluding testi- mony which has been obtained by such means, if it is otherwise competent." (Adams v. New York, 192 U. S., 597.) But one whose property has been illegally seized and is being held by officers of the law for the purpose of using same as evidence in a criminal prosecution, may recover the possession thereof by legal pro- ceedings and thus prevent its being used against him. (Weeks v. U. S., 232 U. S., 383. See further, note to Amendments, Art. V, ' ' Self-Crimination . " ) Arrest of military offenders. — "A de- serter may be arrested by a military officer, or private duly authorized to make the arrest." (In re Fair, 100 Fed. Rep., 149, 152.) An officer of the Army may lawfully arrest a deserter and hold him for trial by court-martial 117 Fifth Amendment. Ft. 1. THE CONSTITUTION. Indictment, (IIut('hinank v. Mangum, 237 r. S.,309.) Prisoner unable to hear testimony. — "\\'lK'ie t lio j)rLs()nor wad couvictod of the crime of munlcr and sentenced to imprisonment for life, althou.i!;li he did not hear a word of the evidence given upon the trial because of his alnu)st total deafness, hLs inability to hear being such that it required a person to speak through an ear trumpet close to his ear in order that such person should be heard by him, and the trial court having failed to see to it that the testimony in the caae was repeated to him through his ear trumpet, this court said that this was 'at most an error, which did not take away from the court its jurisdiction over the subject matter and over the person accused.' " (Frank v. Mangum, 237 U. S., 309, explaining Felts V. Murphy, 201 U. S., 123, 129.) Failure to arraign. — "In Garland v. Wash- ington, 232 U. S., 042, 045, it was held that the want of a formal arraignment, treated by the State as depriving the accused of no sub- stantial right, and as having been waived, and thereby lost, did not amount to depriving de- fendant of his liberty vdthout due process of law." (Frank v. Mangum, 237 U. S., 309.) V. Presence of Accused at Trial. Proceedings in absence of accused. — It was provided by a statute of Utah that, "if the indictment is for a felony, the defendant must be personally present at his trial; but if for a misdemeanor, the trial may be had in the absence of the defendant." Held that, under this statute, the accused can not waive his right to be present at a trial for felony, even durmg the trial of challenges of jurors. "We are of opinion that it was not witnin the power of the accused or hia counsel to dispense with the statutory requirement as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he ' may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mis- taken view, as well of the relations which the accused holds to the public as of the end of human punishment. * * * The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode pre scribed by^ law. That which the law makes essential in proceedings involving the depriva- tion of life or liberty can not be dispensed with or affected by the consent of the accused, much less by his mere failure to object to unauthor- ized methods. The great end of punishment is not the expiation or atonement of the offense committed, but the prevention of future offenses of the same kind. * * * Such be- ing the relation which the citizen holds to the public, and the object of punishment for public wrongs, the legislature has deemed it esssential to the protection of one whose life or liberty is involved in a prosecution for felony that he shall be personally present at the trial ; that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or hborty without being so present, such depriva- tion would be without that due process of law required by the ("(mstitution." (Hopt v. Utah, 110 U. S., 574; distinguished in Diaz v. U. S., 223 U. S., 442, 458, and in Frank v. Mangum, 237 U. S., 309.) "The personal presence of the accused, from the beginning to the end of a trial for felony, involving life or liberty, as well as at the time final judgment is rendered against him, may be, and must be a.ssumed to be, vital to the proper conduct of his defense, and can not be dis- pensed with." (Schwab v. Berggren, 143 U. S., 442, distinguished in Diaz v. U. S., 223 U. S., 442, 458.) Due process of law does not require the pres- ence of the accused in an appellate court at the time the judgment sentencing him to death is affirmed. (Schwab v. Berggren, 143 U. S., 442.) "In trials for felonies, it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally jiresent dur- ing the trial. The making of challenges is an essential part of the trial of a person accused of crime, and it is one of his substantial rights to be brought face to face with the jurors when the challenges are made." (Lewis v. U. S., 146 U. S., 370; distinguished in Diaz v. U. S., 223 U.S., 442, 458.) "It is the law of Kentucky that occasional absence of the accused from the trial from which no injury results to his substantial rights is not reversible error. And we think, in apply- ing that rule to the case at bar, plaintiff in error was not deprived of due process of law within the meaning of the fourteenth amendment of the Constitution of the United States." (How- ard V. Kentucky, 200 U. S., 164.) "It may be admitted that the words 'due process of law,' as used in the fourteenth amendment, protect fundamental rights. What those are can not ever be the cause of much dispute. In giving them protection, however, it was not designed, as was observed by the Chief Justice in In re Converse, supra (137 U. S., 024) 'to interfere with the power of the State to protect the lives, liberty, and property of its citizens; nor with the exercise of that power in the_ ad judication of the courts of the State in administering the process provided by the law of the State.'" (Howard V. Kentucky, 200 U. S., 164, 173.) "While the rule may be otherwise in cases that are capital, or where the accused is in custody imder the control of the court, or where special statutory provisions apply," neverthe- less, "where the offense is not capital, and the accused is not in custody, his voluntary absence does not nullify what has been done in, or pre- vent the completion of, his trial, but operates as a waiver of his right to be present and leaves the court free to proceed." (Diaz v. U. S., 223 U. S., 442.) "The accused was represented and heard by cotmsel at every stage of the proceedings. He also was present in person at all the proceed- ings preliminary to the trial and at the time it was begun and during the major part of it. But on two occasions, in the latter part of the trial, he voluntarily absented himself and sent 126 Presence of Accused. Pt. 1. THE CONSTITUTION. Fifth Amendment. to the court a message expressly consenting that the trial proceed in his absence, which was done. On these occasions two witnesses for the Government were both examined and cross- examined. No complaint grounded upon liis absence was made in the trial court or in the Supreme Court of the Philippines; and the objection now made is, not that he did not voluntarily waive his ri^ his absence. * * * But where the offense is trivial and life or liberty is not in eopardy, therule is to be relaxed. " (Weirman I). U. S.,_36Ct. Cls., 236.) "If it is desirable or necessary that the pris- oner in a civil court be present at every proceed- ing after indictment, it seems to be still more so 127 Filth Amendment. rt. 1. THE CONSTITUTION. Remedy of Accused. tliat a prisoner l)efore a coiirt-martial should he present, for ho onliiuirily is not ropreHcntcd l>y counsel learned in the law and watch lul of his interests, but (as in this case) by some naval officer acting from a humane motive. " (Weir- man V. U. S., 36 Ot. 01s., 23G.) "The court will always roipiire the ])re8ence of the prisoner in court during trial, if he l)e in close custody of the law, unless in case the prisoner exi)re88ly himself, and not l)y counsel, waives his right to l)e present, but the court may require it if it shall deem it advisaljle to do so." (State v. Kelly, 97 N. C, 404, quoting Falk v. U. S., 15 App. D. C, 457.) The action of a naval court-martial, in per- mitting the accused upon a request made ex- pressly l)y himself and not merely l>y counsel to be absent from the immediate presence of the court during the testimony of expert witnesses for the defense concerning the physical and mental condition of the accused, did not invali- date the proceedings, such action l)eing due to hTimanitarian confiiderations based upon repre- Bentations of counsel for the accused as to the latter 's health, and that it would be "cruel" to require his personal attendance during speci- fied portions of the trial. (G. C. M. Rec. 29422. See also Simon r. Craft, 182 U. S., 427, 435, ex- plained in Frank v. Mangum, 237 U. S.,309.) Nevertheless courts-martial are empowered to require the j^resence of the accused during the entire proceedings^ and should always exercise this power to avoid any possible irregularity. (C. M. 0. 51, 1914.) The presence of the judge-advocate when a naval court-martial is closed for deliberation and when the accused, his counsel, and spectators have consequently withdrawn, while a grave irregularity and a disregard of Navy Regula- tions, would not necessarily render the proceed- ings invalid. (C. M. O. 6, 1915; see also Ex parte Tucker, 212 Fed. Rep., 569.) A distinction exists "between what the com- mon law requires with resjiect to trial l>y jury in crimijial cases and what the States may enact without contravening the 'due process' clause of the fourteenth amendment. " Thus "in the Lewis case [above noted] which was a convic- tion of murder in a circuit court of the United States, the trial practice being regulated by the common law, it was held to be a leading prin- ciple, pervading the entire law of criminal pro- cedure, that after indictment nothing shoiild be done in the absence of the prisoner; that the making of challenges is an essential part of the triiil, and it was one of the substantial rights of the prisoner to l)e brought face to face with the jurors at the time the challenges were made; and that in the absence of a statute, this right as it existed at common law must not beabridged ; " while in Howard v. Kentucky (above noted) "this court, finding that by the law of the State an occasional absence of the accused from the trial, from which no injury resulted to his sub- stantial rights, was not deemed material error, held that the application of this rule of law did not amount to a denial of due process within the meaning of the fourteenth amendment. In fact, this coTirt has sustained the States in estab- lishing a great variety of departures from the common-law procedure respecting jiuy trials." (Frank v. Mangum, 237 U. S., 309.) "The practice established in the criminal courts of Georgia that a defendant may waive his right to be present when the jury'renders its verdict and that such waiver may be given after as well as before the CAent * * * is a regulation of criminal procedure that it is within the authority of the State to adopt. In adopting it the State declares in effect, as it reasonably may declare, that the right of the accused to be present at the reception of the verdict is but an incident of the right of trial l\v jury; and since the State may, without infring- ing the fourteenth amendment, abolish trial by jury, it may limit the effect to be given to an error respecting one of the incidents of such trial. The presence of the prisoner when the verdict is rendered is not so essential a part of the hearing that a rule of practice permitting the accused to waive it, and holding him bound by the waiver, amounts to a deprivation of 'due process of law.' " (Frank v. Mangum, 237 U. S., 309.) "As to the 'due process of law' that is re- quired by the fourteenth amendment, it is perfectly well-settled that a criminal {prosecu- tion in the courts of a State, based upon a law not in itself repugnant to the Federal Con- stitution, and conducted according to the settled course of judicial proceedings as es- tablished by the law of the State, so long as it includes notice and a hearing, or an opportunity to be heard, before a court of competent juris- diction, according to established modes of procedure, is 'due process' in the constitutional sense." (Frank v. Mangum, 237 U. S., 309.) VI. Remedy when Due Process Denied. Habeas corpus proceeding's where due process of law alleged to have been denied. — "It is clear that the civil courts are in no sense appellate tribunals for the revision of proceedings in courts-martial. It has been decided that in such cases the civil courts should not interfere if it appears that the court- martial has jurisdiction of the person and of the subject matter wliich was tried before it, and that errors of procedure in military courts can be corrected only by the proper military authorities. * * * It is true that Tucker's legal rights were disregarded by the court- martial when it allowed the judge advocate to be present, even for a short time, at the closed session; but I do not think it is the business of this court to correct the error. The statute in question relates to procedure, not to jurisdiction, and the nonobservance of it by military tribu- nals is a matter for the revising military authori- ties, not for the civil courts." (Ex parte Tucker, 212 Fed. Rep., 569, citing act July 27, 1892, sec. 2, 27 Stat., 277, relating to the Army; there is no similar statute relating to trials by naval court-martial.) "If he is held in custody by reason of his con- viction upon a criminal charge before a court ha\ing plenary jurisdiction over the subject matter or offense, the place where it was com- mitted, and the person of the prisoner, it results from the nature of the writ itself that he can not have relief on habeas corpus. Mere errors in point of law, however serious, 128 Speedy Trial. Pt. 1. THE CONSTITUTION. Sixth Amendment. committed by a criminal court in the exercise of its jurisdiction over a case properly subject to its cognizance, can not be reviewed by habeas corpus. That writ can not be employed as a substitute for the writ of error." (Frank v. Mangum, 237 U. S., 309.) " Wliere it is made to appear to a court of the United States that an applicant for habeas cor- pus is in the custody of a State officer in the ordinary course of a criminal prosecution, under a law of tlie State not in itself repugnant to the Federal Constitution, the writ, in the absence of very special circumstances, ought not to be issued until the State prosecution has reached its conclusion, and not even then until the Federal questions arising upon the record have been brought before this court upon writ of error." (Frank v. Mangum, 237 U. S., 309.) "It is perfectly obvious that where such an appeal is provided for, and the prisoner has had the benefit of it, the proceedings in the appel- late tribunal are to be regarded as a part of the process of law under wliich he is held in custody by the State, and to be considered in determin- ing any question of alleged deprivation of his life or liberty contrary to the fourteenth amend- ment.'/ (Frank v. Mangum, 237 U.S., 309.) " It is open to the courts of the United States, upon an application for a writ of habeas corpus, to look beyond forms and inquire into the very substance of tlie matter, to the extent of deciding whether the prisoner has been de- prived of his liberty without due process of law, and for tliis purpose to inquire into jurisdictional facts, whether they appear upon the record or not." (Frank v. Mangum, 237 U. S., 309.) [ARTICLE VI.] [Right to speedy and public trial by jury ; to confront witnesses ; to have counsel, etc.] In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusa- tion; to be confronted with the witnesses against liim; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Coun- sel for his defence. I. Speedy Trial. II. Public Trial. III. Jury Trial. IV. Impartial Trial. Right to be Informed of Accusation. Confronting Witnesses. Compulsory Process for Obtaining Witnesses. Assistance of Counsel. V VI VII VIII I. Speedy Trial. In general.^" The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not pre- clude the rights of public justice." (Beavers V. Haubert, 198 U. S., 86.) "The discipline necessary to the efficiency of the Army and Navy required other and swifter modes of trial than are furnished by the common law courts." (Ex parte Milligan, 4 Wall., 3, 123.) Provisions to secure this right in the Navy. — No person shall be tried by naval court- martial for any offense committed more than two years before the issuing of the order for his trial, unless by reason of some manifest impediment he shall not have been amenable to justice within that period. (Art. 61, A. G. N., sec. 1624, R. S., as amended by act Feb. 25, 1895, 28 Stat., 680. As to special provisions relating to trials for desertion, see same act. art. 62, A. G. N.) This legislation was in- tended "to require reasonable diligence on the part of public officers in apjirehending offenders and bringing them to justice, and not to place a premium on the ingenuity of such offenders as succeeded in concealing their whereabouts and escaping apprehension for a limited period." (C. M. O. 27, 1913; file 26251-9538, Oct. 30, 1914.) "Offenses shall not be allowed to accumu- late in order that sufficient matter may thus be collectively obtained for a trial, without giving due notice to the offender." (Art. R-1411, Navy Regs., 1913.) "The certainty of prompt punishment ia more conducive to discipline than punish- ment deferred long after the offense." (Art. R-1404, Navy Regs., 1913.) 'Whenever practicable, the trial by deck court of a person in the Navy shall take place "within 48 hours after the offense ia commit- ted" (Naval Courts and Boards, 1917, sec. 480.) If it is decided by the competent officer that the accused shall be brought to trial before a courts-martial, "the court shall be assembled for that purpose as soon as the nature of the case and the interests of the public service will allow." (Art. R-1408, Navy Regs., 1913.) " WTien the proceedings of any general court- martial have commenced, they shall not be suspended or delayed on account of the ab- sence of any of the members, provided five or more are assembled; but the court is enjoined to sit from day to day, Sundays excepted, until sentence is given, unless temporarily ad- journed by the authority which convened it," (Art. 45, A. G. N., sec. 1624, R. S.) 129 Sixth Amendment. PL 1. THE CONSTITUTION. Jury Trial. It should not be attempted to conduct a trial by general court-martial in undue haste ami at unusual hours. The aclioii of a naval cdurt-martial, after completing a trial whieh hail lasted several days, in immediately commencing another trial at 5.15 in the after- noon and completing it the same day, when the case was not one of extraordinary urgency, is not a]ii)roved by the Navy Department. In this case, the court's findings and the errors made in the record strikingly exemplified the con- sequences of its action, and must be attributed to some extent to "overfatigue of the mind" and undue haste resulting from the unusual hour at which the proceedings were com- menced and hurried to a conclusion. Had the accused been convicted and given a substan- tial punishment, counsel in his behalf might well have urged that the case had not been given the time and careful consideration to which it was entitled. (C. M. O. 27, 1913; Naval Courts and Boards, 1917, sec. 216.) II. Public Trial. In general.— "The sessions of courts-mar- tial shall be public, and all persons except such as may be required to give evidence shall be admitted." (Naval Courts and Boards, 1917, sec. 217.) All deliberation of a court-martial takes f)lace with closed doors. "At other times except as to those persons who have been summoned as witnesses] it is open to the pub- lic, military or otherwise, with such limita- tion as the capacity of the room or tent in which it is held, and the convenience of the court and parties before it, may dictate." (Simmons, 3d ed., 175.) [By act of March 3, 1913 (37 Stat., 731), re- lating to the taking of evidence in equity pro- ceedings under the Antitrust Act, it was pro- vided that "the proceedings shall be open to the public as freely as are trials in open court; and no order excluding the public from at- tendance on any sucli proceedings shall be valid or enforceable."] "A court of the United States ought never to sit -with its doors of entrance closed, so as to prevent publicity in its proceed- ings, but its i)olice must be maintained. Where the court has not prescribed any general rule or made any special or particular order on the subject, the specific duty of the marshal to maintain and regulate its police according to law is an incident of his general duty to at- tend the court. WTien, during the pendency of a particular proceeding, there is reason to believe that an unrestricted admission of per- sons of a known class or association would en- danger the security of the administration of justice, or in any manner prevent the police of the court from being properly maintained, the marshal, without excluding absolutely such persons as a class, may adopt prudential measures to prevent their indiscriminate ad- mission, regulating the exercise of his discre- tion so that their exclusion is not carried be- yond the exigency of the particular occasion." (U. S. V. Buck, 24 Fed. Cas. No. 14680.) "The statutes regulating the course of pro- cedure in military courts show that, in con- templation of Congress, these courts stand on the same footing as other judicial tribunals of the country. Their sittings, for example, are free to the attendance of the public, like those of other courts * * *." (11 Op. Atty. Gen., 137, 141.) "^\^letller a court-martial may technically within its legal right close its doors to the public during the trial of an accused, such a procedure is contrary to the authority of text ■svriters on the subject, to the spirit of the Con- stitution, and to the usual practice of the Fed- eral courts. To permit closed sessions would be to introduce a practice into the service that might be made an instrument of oppression contrary to the genius of our laws and institu- tions, to a sound public policy, and one which, while upon occasion might be of benefit to an accused, could be made in cases a most objec- tionable procedure." (File 2G504-115, Jan. 24, 1911.) "The exclusion of persons in certain cases [where the evidence is indecent], as above indicated [decisions of State courts], may have been allowed, but it seems to be contrary to the spirit if not to the letter of the Constitu- tion; and in the case of courts-martial [Navy] it is certainly contrary to a practice that has extended uniformly, so far as precedents have been discovered, for very many years." (File 26504-115, Jan. 24, 1911.) As to the ex- clusion of certain classes of persons in trials by State courts, see State v. Henslev (75 Ohio Stat., 255, 9 Ann. Cas., 108); State v. Nyhus (19 N. D., 326, 27 L. R. A. (N. S.), 487). "The sessions of a general court-martial shall be public, and in general all persons except such as may be required to give evidence shall be admitted . However, in cases where it may seem desirable that certain classes of spec- tators, such as women, children, and others, should be excluded during the trial, the court, when convened by the Secretary of the Navy or the convening authority in other cases, should communicate with the Secretary of the Navy requesting permission therefor and giving a full statement of the reasons." (C. M. O. 51, 1914.) III. Jury Trial. Special cases. — See note to Article I, section 8, clause 14, "Trials by jury not required in the Navy." "The trial of all offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought." (Act Mai-. 3, 1911, sec. 41, 36 Stat., 1100.) This legislation is not exclusive of the juris- diction of a consular tribunal in China, etc., to try for a similar offense committed on board a private ship of the United States in a port of the country in which the tribunal is established, when the offender is not taken to the United States. (In re Ross, 140 U. S., 453.) A homicide committed on a naval hospital ship at Olongapo, P. I., occurred "out of the jurisdiction of any particular State or district." (28 Op. Atty. Gen., 24. ^ 130 Confronting Witnesses. Pt. 1. THE CONSTITUTION. Sixth Amendment. IV. Impartial Trial. Right of challenge. — In trials by naval gen- eral court-martial, ''the accused and the judge advocate have the mutual right of challenge. It is the duty of the judge advocate to ask the ac- cused if he objects to anj^ member of tlie court appointed to try him, and a minute of this in- quiry and the answer thereto is invariably to be entered on the record. As a general rule, whatever objection either party may make to any member shall be decided upon before the court is sworn, but at any stage of the proceed- ings prior to the findings challenges may be made, either by tlie judge advocate or the ac- cused, for cause not j^reviously known. * * * The objection, the cause assigned, the state- ment, if any, of the challenged member, and the decision of the court shall be regularly and specifically entered on the record." (Naval Courts and Boards, 1917, sec. 277.) Members of a naval court-martial may testify as witnesses in a case and then resume their seats as members. (Naval Courts and Boards, 1917, sec. 139.) "Under the settled law of e\'idence members of a jury are competent witnesses in a criminal case on trial before them, and it has been held that 'the analogy of a court- martial is that of a jury in the trial of a ci\-il case, the approving power in the former occu- pying the relation of the judge in the latter.' " Furthermore, the practice of permitti.ig the judge in a civil court to testify as a witness in a case before him is authorized by statute in at least one State, has been judicially upheld in other States, and has been practiced and upheld in the highest court of England. (File 26251- 6020:11; see also Keves v. U. S., 15 Ct. Cls., 533; affirmed 109 U. S., 336.) The objection to a membei of a court-martial continuing to sit as si;ch after testifying against the accused, goes to the propriety of his sitting under the circumstances, not to his legal capacity thus to sit. Qo Op. Atty. Gen., 434.) "Tlie rules in regard to tlie competency of witnesses are the same in courts-martial as in the courts of the common law. Hence, as we have seen, the prosecutor is admissible as a witness, as also are the members of the court." Where a member testifies as a witness "he is not thereby disqualified from resuming his seat as a member of the court, but where there is a sufficient number of members without him to constitute the court, it is more in accordance with the usage in ci-vil courts that he should withdraw." (Greenleaf on Evidence, 16th ed., sec. 487, p. 465.) V. Right to be Informed of Accusation. Arrests in the Navy.— "The person ac- cused shall be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest; and no other charges than those so furnished shall be urged against him at the trial, unless it shall appear to the court that intelligence of such other charges had not reached the officer ordering the court when the accused was put under arrest, or that some witness material to the support of such charge was at that time absent and can be produced at the trial; in which case reasonable time shall be given to the accused to make his defense against such new charge." (Art. 43, A. G. N., sec. 1624, R. S. See note to said section for cases construing and applying this article.) VI. Confronting Witnesses. This constitutional provision does not apply to the Navy. (MuUan v. U. S., 42 Ct. Cls., 157, 176; affirmed 212 U.S., 516.) Use of depositions. — It is provided by statute that "the depositions of witnesses may be taken on reasonable notice to the opposite party, and when duly authenticated, may be put in evidence before naval courts, except in capital cases and cases where the pun- ishment may be imprisonment or confinement for more than one year as follows: First, depo- sitions of civilian witnesses residing outside the State, Territory, or district in which a naval court is ordered to sit; second, deposi- tions of persons in the naval or military service stationed or residing outside the State, Terri- torj', or District in which a naval court is ordered to sit, or who are under orders to go outside of such State, Territory, or District; third, where such naval court is convened on boai'd a vessel of the United States, or at a nav^al station not within any State, Territory, or District of the United States, the depositions of witnesses may be taken and used as herein proA'ided whenever such witnesses reside or are stationed at such a distance from the place where said naval com't is ordered to sit, or are about to go to such a distance as, in the judg- ment of the convening authority, would render it impracticable to secure their personal at- tendance." (Act Feb. 16, 1909, sec. 16, 35 Stat., 622; see also art. 25 Articles of War. sec. 1342, R. S., as amended by act of Aug. 29, 1916, 39 Stat., 655, which contains broader pro- visions with reference to use of depositions before Army courts; and see 9 Op. Attv. Gen., 311, 312, and file 26260-1392, June 29, 1911, p. 30; see also 2 Op. Atty. Gen., 344.) "In any case where it is necessaiy to use depositions at the trial thereof and depositions are so used, the maximum punishment under such circumstances shall in no case exceed im- prisonment or confinement for one year." (Naval Courts and Boards, 1917, sec. 390.) *'The proceedings of courts of inquiry shall * * * in all cases not capital, nor ex- tending to the dismissal of a commissioned or warrant officer, be e\'idence before a court-mar- tial, provided oral testimony can not be ob- tained." (Art. 60, A. G. N., sec. 1624, R. S.; C. M. 0. 46, 1917, p. 13; Naval Courts and Boards, 1917, sec. 198, Changes No. 1.) "If, in the case of a commissioned or warrant officer, the maximum sentence, under the * * * limitations of punishment, extends to dismissal, and if, upon the trial, oral testimony can not be obtained, by reason of which fact the record of proceedings of the court of inquiry, upon whose findings such trial is wholly or partially based is used in CAddence, the maxi- mum punishment which may be imposed shall not extend to dismissal, but shall, instead, be limited not to exceed the loss of 100 numbers in rank." (Naval Courts and Boards, 1917, sec. 390.) 131 Sixth Amendment. Ft. 1. THE CONSTITUTION. Attendance of Witnesses. " All testimony before a summary conrt- martialsluill be, tjiveu orally, upon oath or allir- nuition, administered by the senior member of the court." (Art. 29. A. G. N., sec. 1G24, K. S.) In proceedings before courts of inquiry ' ' the ]iarty whose conduct shall be tlie subject of inquiry, or his attorney, shall have the right to cross-examine all the wdtnesses." (Art. 59, A. G. N., sec. 1G24, R. S.) "The primary object of the constitu- tional provision in question was to prevent depositions or ex parte aflidavits, such as were Bometimes admitted in civil cases, being used against the prisoner in lieu of a personal exam- ination and cross-examination of tlie witness in which the accused has an opportunity, not only of testing the recollection and sifting the con- science of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his de- meanor upon the stand and the manner vn which he gives his testimony whether he is worthy of belief." (Mattox v. U. S., 156 U. S., 240.) The admission of a deposition in evidence against an accused on trial in a State court does not violate any right which he possesses under the Federal Constitution. The provision of the sixth amendment relating to the subject does not apply to State courts, and the right to be confronted with the witnesses against him does not extend to the defendant in a State cotirt under the provision of the fourteenth amend- ment that no State shall deprive any person of life, liberty, or property "without due process of law. ' ' The admission of the deposition ' ' was but a slight extension of the rule of the common law, even as contended for by counsel. The extension is not of such a fundamental char- acter as to deprive the accused of due process of law * * *. The accused has, as held by the State court in such case, been once con- fronted with the witness and has had oppor- tunity to cross-examine him, and it seems rea- sonable that when the State can not procure the attendance of the witness at the trial and he is a nonresident and is permanently beyond the jurisdiction of the State that his deposition might be read equally as well as when his at- tendance could not be enforced because of death or of illness or his evidence given by reason of insanity." (West v. Louisiana, 194 U. S., 258.) Dying declarations. — This provision of the Constitution does not prevent the admission of dying declarations in accordance with rules of evidence which were well established long be- fore the adoption of the ConstitTition. (Kirby V. U. S., 174 U. S., 61.) "Witness absent by fault of accused. — ' 'The Constitution gi\'es the accused the right to a trial at which he should be confronted with the witnesses against him; biit if a witness is absent by his own ^vrongful proctirement he can not complain if competent evidence is ad- mitted to supply the place of that which he had kept away. The Constitution does not guarantee an accused person against the legiti- mate consequences of his o^vn wrongful acts. It grants him the privilege of being confronted with the witnesses against him, but if he vol- untarily keeps the witnesses away he can not insist on his privilege. If, therefore, when absent ))y his procurement, their evidence is supplied in some lawful way, he is in no con- dition to assert that his constitutional rights have been violated." (Reynolds v. U. S., 98 U. S.,160.) Admissions as to what -witness would testify if present. — "Article 6 of the amend- ments * * * gives the accused a right to a trial l)y jury. But the same article gives him the fiirlher right to be confronted with the wit- nesses against him and to have the assistance of counsel . Is it possible than an accused can not admit and be bound by the admission that a witness not present would testify to certain facts? Can it be that if he does not wish the assistance of counsel and waives it the trial is invalid? It seems only necessary to ask these questions to answer them. "NMien there is no const itTitional nor statutory mandate and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy." (Schick v. U.S., 195 U. S., 65, 71; MuUan v. U. S., 212 U. S., 516, 520.) '* A commissioned oflBLcer of the Navy can waive the provisions of article 60 of section 1624, Revised Statutes, and allow the proceed- ings of a court of inquiry to be evidence on a court-martial the sentence of which may extend to his dismissal; * * * and where, at the reqxiest of such an officer, the Secretary of the Navy convenes a court-martial to try him on matter which had already been the subject of a court of inquiry, on condition that the pro- ceedings of such court of inquiry be evidence, each party having the privilege, however, of introducing other evidence, the accused is not deprived of any substantial right so that the sentence of the court-martial is invalidated." (Mullan V. U. S., 212 U. S., 516.) VII. Compulsory Process for Obtaining Witnesses. A naval court-martial or court of in- quiry has power to issue like process to com- pel witnesses to appear and testify which United States courts of criminal jurisdiction within the State, Tenitory, or district where such naval court is ordered to sit may lawfully issue; and persons duly subpoenaed as wit- nesses before general courts-martial or courts of inquiry, who refuse to appear or to testify, may be punished by fine and imprisonment, except where such persons reside beyond the State, Territory, or district in which such naval court is held. (Act Feb. 16, 1909, sees. 11 and 12, 35 Stat., 621, 622.) ' ' The accused is, in general, entitled to have all the material witnesses for his defense sum- moned, except when their testimony would be merely cumulative and evidently add nothing to the strength of his case. As far as possible he should be allowed a full and free defense, as the least denial to him of any proper facility, opportunity, or latitude for it may serve to de- feat the ends of justice." (Naval Courts and Boards, 1917, sec. 126.) 132 Suits at Common Law. PL 1. THE CONSTITUTION. Seventh. Amendment. The Navy Department will not, at the ex- pense of the United States, summon witnesses from a distance, either for the prosecution or the defense, who have no personal knowledge of the facts at issue. The best e\ddence of the character of the accused is his official record in the service, which is furnished the judge advo- cate; while members of the court-martial in this case, and officers who are on duty at the place of trial, have had service which should render them fully competent to qualify as experts and testify as such either for the prosecution or the defense. (File 26251-7777:3, July 5, 1913; Naval Courts and Boards, 1917, sec. 125.) [Medical experts are in practice employed and paid by the accused, ancl are not summoned by the Government as witnesses for the accused. G. C. M. Rec. Nos. 28613, 29422; Ct. oflnq. Rec. No. 5777; C. M. O. 20-1915, p. 6; see also note to sec. 848, R. S.] As to right of compulsory process to compel Members of Congress to attend and testify be- fore naval courts, see note to Article I, section 6, clause 1. Upon question of issuing process to secure the attendance of the President as a witness, see note to Article II, section 1, clause 1. VIII. Assistance of Counsel. Trials in the Navy. — In trials by naval court-martial the accused is entitled to coun- sel as a right, and the court can not properly deny him the assistance of a professional or other adviser. Enlisted men to be tried shall be par- ticularly advised of their rights in the premises, and should be represented by counsel, if prac- ticable, unless they explicitly state that they do not desire such assistance. "VMien the accused has no legal adviser, the commandant of the navy- yard or station, the commander in chief, or the senior officer present, within whose jurisdiction the court sits, shall, if the accused so requests, detail a suitable officer to act as his counsel. If there be no such officer available, the fact shall be reported to the convening authority for action. An officer so detailed shall perform such duties as usually devolve upon the counsel for the defense before civil courts in criminal cases. As such counsel he shall use all legal means to protect the interests of the accused and to present to the court such defense as the accused may have. (Naval Courts and Boards, 1917; sees. 265, 266.) "The accused and his counsel have a right to the opinion of the judge advocate, in or out of court, upon any question of law arising out of the proceedings." (Naval Courts and Boards, 1917, sec. 254.) "In the event that the accused has no coun- sel, the judge advocate shall protect his inter- ests, having in mind, however, at all times his duties as prosecutor." (Naval Courts and Boards, 1917, sec. 255.) "The complainant and all defendants or in- terested parties before a court of inquiry may be allowed to have friends or counsel present during open court. " (Naval Courts and Boards, 1917, sec. 508.) "The party whose conduct shall be the subject of inquiry, or his attorney, shall have the right to cross-examine all the wit- nesses." (Art. 59, A. G. N., sec. 1624, R. S.) \\'hen an enUsted man, while a prisoner at large aAvaiting trial by summary court-martial, was afforded ample time in which to secure civilian counsel, but at his trial requested a postponement, for such time as he would be per- mitted, to go in person to some city in the State for the puqiose of engaging counsel, the court pro23erly decided that this request was unrea- sonable. This action of the court did not deny the accused the right to be represented by civil- ian counsel, but decided in effect that, as he had had ample time and opportunity to secure coun- sel and had failed to do so, his demand that he be set at Uberty for this purpose was unreason- able. The accused refused to allow any officer of the Na\^' on duty at place of trial to act as his counsel, whereupon the court properly decided that the accused " had denied himself the bene- fit of counsel," and proceeded with the trial. (File 26287-15:37, Apr. 7, 1913, S. C. M. Rec. No. 5131, 1913.) " The courts have repeatedly decided that the defendant in a criminal case in which counsel is appointed for him by the Government has no choice in the matter and his wishes even are not to be consulted as to the individual who shall be designated to defend him." (File 26251-6020: 11, July 7, 1913.) When it is contended by civilian counsel em- ployed by the accused after completion of the trial, " that the accused was not properly repre- sented by counsel," the commissioned officer appointed to defend him being incompetent, and at the same time it is asserted "that the accused should have been acquitted upon the evidence before the court," the contention is considered "as being wholly without merit." Such contentions have been many times urged in criminal cases, and likewise have been many times frowned down upon and discouraged by the courts. As stated by the supreme court of Missouri in such a case, with reference to coun- sel representing the accused at his trial, "if he did nothing else he seems to have convinced his successor, the present counsel in the case, that upon the facts disclosed he ought to have ob- tained an acquittal." (File 26251--6020:11, July 7, 1913.) [ARTICLE VII.] [Jury trial in suits at common law.] In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. 133 Eighth Amendment. ri. 1. THE CONSTITUTION. Punishments. [AKTICLE VIII.] [Excessive bail or fines and cruel punishments prohibited.] Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punish- ments inflicted. Cruel and unusual punishments. — The imposition of a hea\ier punislunent for a second offense is not prohibited by tliis article. (Mc- Donald V. Massachusetts, 180 U. S., 311.) " runishments are cruel when they inA'olve torture or a lingering death; but the punish- ment of death is not cruel within the meaning of that word as used in the Constitution. It implies something inhuman and barbarous, something more than the mere extinguishment of hfe." (Ex parte Kemmler, 136 U. S., 436. See also Wilkerson v. Utah, 99 U. S., 130, hold- ing that death by shooting is not cruel and un- usual witliin the meaning of this amendment.) "Infamous" punishments ■svathin the mean- ing of the fifth amendment "can not be limited to those punishments which are cruel or un- usual; because, by the seventh [eighth] amendment of the Constitution, 'cruel and unusual punishments' are wholly forbidden, and can not therefore be lawfully inflicted even in cases of con\ictions upon indictments duly presented by a grand jury. * * «• WTiat punishments may be considered as infamous may be affected by the changes of public opinion from one age to another. In former times, being put in the stocks was not consid- ered as necessarily infamous. And by the first judiciary act of the United States, whipping was classed with moderate fines and short terms of imprisonment in limiting the criminal jiu-is- diction of the district coiu-ts to cases 'where no other punishment than wliipping, not exceed- ing thirty stripes, a fine not exceeding one hun- dred dollars, or a term of imprisonment not ex- ceeding six months, is to be inflicted.' * * * But at the present day either stocks or whipping might be thought an infamous punishment. For more than a century, imprisonment at hard labor in the State prison or penitentiary or other institution has been considered an infamous punishment in England and America." (Ex parte Wilson, 114 U. S., 417.) "In no case shall punishment by flogging, or by branding, marking, or tattooing on the body be adjudged by any court-martial or be in- flicted upon any person in the Navy." (Art. 49, A. G. N., sec. 1624, E. S.) "The use of irons, single or double^ as a form of punishment in the I'la vy of the Umted States is hereby abolished, except for the purposes of safe cus-tody or when part of the sentence im- posed by a general court-martial." (Act May 13, 1908, 35 Stat., 132; see also act Feb. 16, 1909, sec. 8, 35 Stat., 621.) "It shall be the duty of a court-martial, in all cases of conviction, to adjudge a punishment adequate to the nature of the offense; but the members thereof may recommend the person con\dcted as deserving of clemency, and state, on the record, their reasons for so doing. ' ' (Art. 51, A. G. N.,sec. 1624, R. S.) "In interpreting the eighth amendment it will be regarded as a precept of justice that punishment for crime should be graduated and proportioned to the offense. * * * "What constitutes a cruel and unusual punishment prohibited by the eighth amendment has not been exactly defined and no case has heretofore occurred in this court calling for an exhaustive definition. * * * The eighth amendment is progressive and does not prohibit merely the cruel and unusual punishments known in 1689 and 1787, but may acqiure wider meaning as public opinion becomes enlightened by humane justice; and a similar provision in the PhiUppine bill of rights applies to long-continued imprison- ment with accessories disproportionate to the offense." (Weems v. U. S., 217 U. S., 349.) "In determining whether a punishment is cruel and unusual as fixed by the Pliilippine Commission, tliis court will consider the punish- ment of the same or similar crimes in other parts of the United States, as exhibiting the differ- ence between power unrestrained and that ex- ercised under the spirit of constitutional limita- tions formed to establish justice." (Weems v. U. S., 217 U. S., 349.) "Where the minimum sentence wliich the coiu*t might impose is cruel and unusual within the prohibition of a bill of rights, the fault is in the law and not in the sentence, and if there is no other law under which sentence can be im- posed, it is the duty of the court to declare the law void." (Weems v. U. S., 217 U. S., 349.) [ARTICLE IX.] [Rights reserved to the people.] The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [ARTICLE X.] [Powers reserved to the States.] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 134 Involuntary Servitude. Ft. 1. THE CONSTITUTION. Thirteenth Amendment. ARTICLE XI. [limitations upon judicial powers.] The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. ARTICLE XII. [Election of President and Vice-President.] The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in dis- tinct ballots the person voted for as Vice-President, and they shall make dis- tinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — The President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted ;^The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Rep- resentatives shall choose immediately, by ballot, the President. But in choos- ing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a mem- ber or members from two-thirds of tlie states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shaU act as President, as in the case of the death or other constitutional disability of the President. — The person having the greatest number of votes as Vice-President, shaU be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the fist, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Sen- ators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally inehgible to the office of President shall be eligible to that of Vice-President of the United States. ARTICLE XIII. Section 1. [Slavery and involuntary servitude prohibited.] Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. 135 Fourteenth Amendment. Ft. 1. TEE CONSTITUTION. Citizenship. Section 2. [Power of Congress.] Congress shall have power to enforce this article by appropriate legislation. Involuntary servitude. — "It is clear * * * tliat theauumdiiK'Utwasnotiuteiided to introduce any novel doctrine \vith respect to certain descriptions of ser\dce wliich have always been treated as exceptions — such as military and na^■al enUstments — or to the right of parents and guardians as to their minor children or wards. The amendment, however, makes no distinction between a pubUc and a pri\-ate service. To say that persons engaged in a pubUc serAdce are not Avithin the amend- ment is to admit that tliere are exceptions to its genera] language, and the fiuther question is at once presented. Where shall the liixe be dra\vn? We know of no better answer to make than to say that services which havefrom time immemorial been treated as exceptional shall not be regarded as within its piuview. From the earliest historical period the contract of the sailor has been treated as an exceptional one and involving to a certain extent the siurender of his personal hberty during the life of the con- tract." (Robertson v. Baldwin, 165 U. S., 275; see also Butler v. Perry, 240 U. S., 328.) "Does the epithet 'involuntary' attach to the word 'servitude' continuously, and make illegal any service which becomes involuntary at any tune during its existence; or does it attach only at the inception of the sei-vitude, and characterize it as unlawful because un- lawfully entered into? If the former be the true construction, then no one, not even a soldier, sailor, or apprentice can smrender his liberty even for a day; and the soldier may desert his regiment upon the eve of battle and the sailor abandon his sliip at any intermediate port or landing, or even in a storm at sea, pro- vided only he can find means of escaping to another vessel. If the latter, then an individ- ual may, for a valuable consideration, contract for the surrender of his personal hberty for a definite time and for a recognized purpose, and subordinate his going and coming to the will of another during the continuance of the con- tract. * * * Not that all such contracts would be lawful, but that a service which was knowingly and willfully entered into could not be termed involuntary. Thus if one should agree, for a yearly wage, to serve another in a particular capacity during his hfe, and never to leave liis estate without his consent, the contract might not be enforceable for the want of a legal remedy, or might be void upon the grounds of public policy, but the servitude could not be properly termed involuntaiy. Such agreements for a limited personal servi- tude at one time were very common in England, and by statute * * * it was enacted that if any servant in husbandry or any artificer, caUco printer, hands-crafteman, miner, collier, keelman, pitman, glassman, potter, laborer, or other person should contract to serve another for a definite time and should desert such service during the term of the contract he was made Uable to a criminal punishment. The breach of a contract for personal serAice has not, however, been recognized in tliis country as involving a habiUty to criminal punishment except in the cases of soldiers, sailors, and possibly some others, nor would public opinion tolerate a statute to that effect. But we are also of opinion that, even if the contract of a seaman could be considered Avitliin the letter of the thirteenth amendment, it is not, witliin its spirit, a case of involuntarv ser\dtude." (Robertson v. Baldwin, 165 U. S.", 275.) The Supreme Court is unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great repre- sentative body of the people can be said to be the imposition of involuntary servitude in violation of the proMbitions of the Thirteenth Amendment, and is constrained to the con- clusion that the contention to that effect is refuted by its mere statement. (Selection Draft Law Cases, 245 U. S., 366.) A person in the miUtary or naval service, whether an officer or a private, is always more or less subject in his movements, by the very necessity of miUtary rule and subordination, to the orders of his superior officer; and unless it is clear that some unusual restraint upon his liberty of personal movement exists he can not claim that he is unlawfully deprived of his hberty; "otherwise every order of the superior officer directing the movements of his subor- dinate, which necessarily to some extent cur- tails his freedom of will, may be held to be a restraint of his liberty, and the party so ordered may seek reUef from obedience by means of a writ of habeas corpus." (Wales v, Whitney, 114 U. S., 564.) ARTICLE XIV. Section 1. [Citizenship; privileges and immunities of citizens.] All persons bom or naturaUzed in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immuni- ties of citizens of the United States; nor shall any State deprive any person 136 Citizenship. PL 1. THE CONSTITUTION. Fourteenth Amendment. of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws. Citizenship. — "There can not be a nation without a people. The very idea of a poUtical community, such as a nation is, impUes an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it alle- giance and is entitled to its protection. Alle- giance and protection are in this connection reciprocal obligations. The one is a compen- sation for the other; allegiance for protection and protection for allegiance. For conven- ience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the rela- tion he bears to the nation. For this purpose the words 'subject,' 'inhabitant,' and 'citizen' have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the descrip- tion of one living under a republican govern- ment, it was adopted by nearly all of the States upon their separation from Great Britain and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense, it is understood as conveying the idea of member- ship of a nation and nothing more." (Minor V. Happersett, 21 Wall., 162.) "As appears upon the face of the amend- ment as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens accord- ing to the law existing before its adoption. It is declaratory in form and enabling and extending in effect. Its main purpose doubt- less was, as has been often recognized by this court to establish the citizenship of free negroes, which had been denied in the opinion deUv- ered by Chief Justice Taney in Dred Scott v. Sandford, 1857, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States. * * * But the opening words, 'All per- sons bom,' are general, not to say universal, restricted only by place and jurisdiction and not by color or race, as was clearly recognized in all the opinions delivered in the Slaughter House Cases above cited [16 Wall., 36]. " (U. S. V. Wong Kim Ark, 169 U. S., 649.) This amendment "declares that persons may be citizens of the United States without regard to the citizenship of a particular State * * * the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citi- zen of the Union. It is quite clear then that there is a citizenship of the United States and a citizenship of a State, which are distinct from each other and which depend upon differ- ent characteristics or circumstances in the individual." (Slaughter House Cases, 16 Wall., 36.) Subject to jurisdiction thereof. — "The real object of the fourteenth amendment of the Constitution in qualifying the words, 'all persons born in the United States,' by the addition, 'and subject to the jurisdiction thereof,' would appear to have been to exclude by thefewest and fittest words (besides children of members of the Indian tribes standing in peculiar relation to the National Government, unknown to the common law), the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State — both of which, as has already been shown by the law of England and by our own law from the time of the first settlement of the Enghsh colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country." (U. S. v. Wong Kim Ark, 169 U. S., 649, modifying as incorrect a remark in Slaughter House Cases, 16 Wall., 36, that "the phrase, 'subject to its jurisdiction,' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.") Indians. — "Indians bom within the terri- torial limits of the United States, members of and owing immediate allegiance to one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more 'born in the United States and subject to the juris- diction thereof within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations. * * * Such Indians, then, not being citizens by birth, can only become citizens in the second way mentioned in the fourteenth amendment, by being naturalized in the United States, bv or under some treaty or statute." (Elk v. Wilkins, 112 U. S., 94; file 9212-48, Aug. 3, 1914; see also, as to status of Indians, U. S. v. Hadley, 99 Fed. Rep., 437; U. S. v. Elm, 25 Fed. Cas. No. 15048; Matter of Heff, 197 U. S., 504; 7 Op. Atty. Gen., 746; McKay v. Camp- bell, 16 Fed. Cas. No. 8840; U. S. v. Wong Kim Ark, 169 U. S., 680.) Special pro\dsion has been made for the naturalization of Indians by various acts of Congress. Thiis by act of Febmary 8, 1887 (24 Stat., 390), after providing for the allotment of lands in Indian reservations to any Indian located thereon, it was provided by section 6, 137 Fourteenth Amendment. Ft. 1. THE CONSTITUTION. Citizenship. as amended l)y act of March 3, 1901 (31 Stat., 1447): "That upon the completion of said allotmcnta and the patenting of the lands to said allottees, each and even' membei' of the respective bands or tribes of "Indians to whom allotments have been ma% except in cases arising in the land or naval forces or in the militia when in actual service. No person shall be held to answer for a capital or otherwise infamous crime unless on a. [Amendments] 5 PRESIDENT OF THE UNITED STATES. The Senate shall choose a Presi- dent pro tempore when the Vice-President shall exercise the office of 1 3 5 The Chief Justice shall preside upon the trial of the 13 6 Shall approve and sign all bills passed by Congress before they shall become laws j. 7 2 Shall return to the House in which it originated, with his objections, any bill which he shall not approve 1 7 2 If not returned within ten days (Sundays excepted) it shall become a law, unless Congress shall adjourn before the expiration of that time 17 2 Every order, resolution, or vote which requires the concurrence of both Houses, except on a question of adjournment, shall be presented to the 1 7 3 If disapproved by him, shall be returned and proceeded on as in the case of a bill 1 7 3 The executive power shall be vested in a 2 1 1 He shall hold his office during the term of four years 2 1 1 In case of the removal of the President from office, or of his death, resignation, or inability to discharge the duties of his office, the Vice-President shall perform the duties of 2 1 5 Congress may declare, by law, in the case of the removal, death, resignation, or inability of the President, what officer shall act as 2 1 5 The President shall receive a compensation which shall not be increased nor diminished during his term, nor shall he receive any other emolument from the United States 2 16 166 Pt.l. THE CONSTITUTION. Analytical Index. Arti- Sec- r..^^^ cle. tion. ^'^use. PRESIDENT OF THE UNITED STATES— Continued. Before he enters upon the execution of hia office he shall take an oath of office 2 1 7 Shall be Commander in Chief of the Army and Navy, and of the militia of the States when called into actual service 2 2 1 He may require the opinion, in vsTiting, of the principal officer in each of the Executive Departments 2 2 1 He may grant reprieves or pardons for offenses, except in cases of impeach- ment 2 2 1 He may make treaties, by and vsdth the advice and consent of the Senate, two-thirds of the Senators present concurring 2 2 2 He may appoint, by and with the advice and consent of the Senate, ambassa- dors, other public ministers and consuls, judges of the Supreme Court, and all other officers whose appointments may be authorized by law and not herein provided for 2 2 2 Congress may vest the appointment of inferior officers in the 2 2 2 He may fill up all vacancies that may happen in the recess of the Senate by commissions which shall expire at the end of their next session 2 2 3 He shall give information to Congress of the state of the Union, and recom- mend measures 2 3 On extraordinary occasions he may convene both Houses or either House of Congress 2 3 In case of disagreement between the two Houses as to the time of adjoiu"n- ment, he may adjourn them to such time as he may think proper 2 3 He shall receive ambassadors and other public ministers 2 3 He shall take care that the laws be faithfully executed 2 3 He shall commission all the officers of the United States 2 3 Shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors 2 4 No person except a natural-born citizen or a citizen of the United States at the adoption of the Constitution shall be eligible to the office of 2 1 4 No person who shall not ha^-e attained the age of thirty-five years and been fourteen years a citizen of the United States shall be eligible to the office of . . 2 1 4 PRESIDENT AND VICE-PRESIDENT. MANNER OF CHOOSING. Each State, by its legislature, shall appoint a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress 2 1 2 No Senator or Representative or person holding an office of trust or profit under the United States shall be an elector 2 1 2 Congress may determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States 2 13 The electors shall meet in their respective States and vote by ballot for Presi- dent and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves. [Amendments] 12 They shall name in distinct ballots the person voted for as President and the person voted for as Vice-President. [Amendments] 12 They shall make distinct lists of the persons voted for as President and as Vice-President, which they shall sign and certify and transmit sealed to the President of the Senate at the seat of government. [Amendments].. 12 The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. [Amendments] 12 The person ha\dng the greatest number of votes shall be the President, if such numl)er be a majority of the whole number of electors appointed. [Amendments] 12 167 Analytical Index. Ft. l. THE CONSTITUTION. Arti- Sec- oin..^^ cle. tion. ^^"^«- PRESIDENT AND VICE PRESIDENT. MANNER OF CHOOSING— Con. If no person have such majority, tlien from the persons having the highest numbers, not exceeding three, on the list of those voted for aa President, the House of Representatives shall choose immediately, by ballot, the President. [Amendments] 12 In choosing the President, the votes shall be taken by States, the representa- tion from each State having one vote. [Amendments] 12 A quorum for this purpose shall consist of a member or members from two- thirds of the States, and a majority of all the States shall be necessary to a choice. [Amendments] 12 But if no choice shall be made before the 4th of March next following, then the Vice-President shall act as President, as in the case of the death ordie- abiUty of the President. [Amendments] 12 PRESIDENT OF THE SENATE, but shall have no vote unless the Senate be equally di\-ided. The Vice-President shall be 13 4 PRESIDENT PRO TEMPORE. In the absence of the Vice-President the Senate shall choose a 1 3 5 When the Vice-President shall exercise the office oi President of the United States, the Senate shall choose a 1 3 5 PRESS. Congress shall pass no law abridging the freedom of speech or of the. [Amendments] 1 PREVIOUS CONDITION OF SERVITUDE. The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or. [Amendments] 15 1 PRIVATE PROPERTY shall not be taken for public use without just compen- sation. [Amendments] 5 PRIVILEGE. Senators and Representatives shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same 1 6 1 They shall not be questioned for any speech or debate in either House in any other place 16 1 PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES. The citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several States 4 2 1 No soldier shall be quartered in any house without the consent of the owner in time of peace. [Amendments] 3 No person shall be twice put in jeopardy of life or Umb for the same offense. [Amendments] 5 All persons born or naturalized in the United States, and subject to the juris- diction thereof, are citizens of the United States and of the State in which they reside. [Amendments] 14 1 No State shall make or enforce any law which shall abridge the. [Amend- ments] 14 1 No State shall deprive any person of life, liberty, or property without due process of law. [Amendments] 14 1 Nor deny to any person within its jurisdiction the equal protection of its laws. [Amendments] 14 1 PRIZES captured on land or water. Congress shall make rules concerning 1 8 11 PROBABLE CAUSE. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue for such but upon. [Amend- ments] 4 PROCESS OF LAW. No person shall be compelled in any criminal case to be a witness against himself , nor be deprived of life, liberty, or property with- out due. [Amendments] 5 168 Pt. 1. THE CONSTITUTION. Analytical Index. , Artl- Sec- (.,„„„„ cle. tion. ^^ause. PROCESS OF LAW. No State shall deprive any person of life, liberty, or property without due. [Amendments] 14 1 PROCESS for obtaining witnesses in his favor. In all criminal prosecutions the accused shall have. [Amendments] 6 PROGRESS of science and useful arts. Congress shall have power to promote the 18 8 PROHIBITION of intoxicating liquors for beverage purposes. [Amendments]. 18 1 PROPERTY of the United States. Congress may dispose of and make all needful rules and regulations respecting the territory or 4 3 2 PROPERTY without due process of law. No person shall be compelled in any criminal case to be a witness against himself; nor shall he be deprived of his life, liberty, or. [Amendments] 5 No State shall abridge the privileges or immunities of citizens of the United States, nor deprive any person of his life, liberty, or. [Amendments] .... 14 1 PROSECUTIONS. The accused shall have a speedy and public trial in all criminal. [Amendments] 6 He shall be tried by a jury in the State or district where the crime was com- mitted. [Amendments] 6 He shall be informed of the nature and cause of the accusation. [Amend- ments] 6 He shall be confronted with the witnesses against him. [Amendments] 6 He shall have compulsory process for obtaining witnesses. [Amendments].. 6 He shall have counsel for his defense. [Amendments] 6 PROTECTION of the laws. No State shall deny to any person within its juris- diction the equal. [Amendments] 14 1 PUBLIC DEBT of the United States incurred in suppressing insurrection or rebellion shall not be questioned. The validity of the. [Amendments]. 14 4 PUBLIC SAFETY may require it. The writ of habeas corpus shall not be sus- pended, unless when in cases of rebellion or invasion the 19 2 PUBLIC TRIAL by jury. In all criminal prosecutions the accused shall have a speedy and. [Amendments] 6 PUBLIC USE. Private property shall not be taken for, without just compen- sation. [Amendments] 5 PUNISHMENT according to law. Judgment in cases of impeachment shall not extend further than to removal from, and disqualification for, office; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and 1 3 7 PUNISHMENTS inflicted. Excessive bail shall not be required nor excessive fines imposed nor cruel and unusual. [Amendments] 8 Q. QUALIFICATION FOR OFFICE. No religious test shall ever be required as a 6 . . 3 QUALIFICATIONS of electors of Members of the Senate shall be the same aa electors for the most numerous branch of the State legislature. The seven- teenth amendment. [Amendments] 17 QUALIFICATIONS of electors of Members of the House of Representatives shall be the same as electors for the most numerous branch of the State legislature 1 2 1 QUALIFICATIONS of Members of the House of Representatives. They shall be 25 years of age, 7 years a citizen of the United States, and an inhabitant of the State in which chosen 1 2 2 QUALIFICATIONS of Senators. They shall be 30 years of age, 9 years a citizen of the United States, and an inhabitant of the State in which chosen. .13 3 Of its own Members. Each House shall be the judge of the election, returns, and 15 1 169 Analytical Index. Pt. 1. THE CONSTITUTION. , Arti- Sea cle. tion. Clause. QUALIFICATIONS of the President. No person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Consti- tution, shall be eligible to the office of President 2 Neither shall any person be eligible to the office of President who shall not have attained the age of 35 years, and been 14 years a resident within the United States 2 Of the Vice President. No person constitutionally ineligible to the office of President shall be eligible to that of Vice President. [Amendments] 12 QUARTERED in any house without the consent of the owner in time of peace. No soldier shall be. [Amendments] 3 QUORUM to do business. A majority of each House shall constitute a 1 But a smaller number than a quorum may adjourn from day to day, and may be authorized to compel the attendance of absent Members 1 Of the House of Representatives for choosing a President shall consist of a Member or Members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. [Amendments] 12 QUORUM to elect a Vice President by the Senate. Two- thirds of the whole number of Senators shall be a. [Amendments] 12 A majority of the whole number shall be necessary to a choice. [Amend- ments] 12 R. RACE, color, or previous condition of servitude. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of. [Amendments] 15 RATIFICATION of amendments to the Constitution shall be by the legislatures of three-fourths of the several States or by conventions in three-fourths of the States, accordingly as Congress may propose 5 Of the conventions of nine States shall be sufficient to establish the Con- stitution between the States so ratifying the same 7 RATIO of representation until the first enumeration under the Constitution shall be made not to exceed one for every thirty thousand 1 RATIO of representation shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. [Amendments] 14 RATIO. But when the right to vote for presidential electors or Members of Con- gress, or the legislative, executive, and judicial officers of the State, except for engaging in rebellion or other crime, shall be denied or abridged by a State, the basis of representation shall be reduced therein in the proportion of such denial or abridgment of the right to vote. [Amendments] 14 REBELLION against the United States. Persons who, while holding certain Federal and State offices, took an oath to support tlie Constitution, after- wards engaged in insurrection or rebellion, disabled from holding office under the United States. [Amendments.] 14 But Congress may by a vote of two-thirds of each House remove such disa- bility. [Amendments] 14 REBELLION against the United States. Debts incurred for pensions and boun- ties for services in suppressing the rebellion shall not be questioned. [Amendments] 14 All debts and obligations incurred in aid of the rebellion, and all claims for the loss or emancipation of slaves, declared and held to be illegal and void. [Amendments] 14 REBELLION or invasion. The writ of habeas corpus shall not be suspended except when the public safety may require it in cases of 1 RECEIPTS and expenditures of all public money shall be published from time to time. A regular statement of 1 170 Pt.l. THE CONSTITUTION. Analytical Index , Arti- Sec- p,„,,,„ cle. tion. ^'^'^se. RECESS OF THE SENATE. The President may grant commissions, which shall expire at the end of the next session, to fill vacancies that may happen during the 2 2 3 RECONSIDERATION of a bill returned by the President with his- objections. Proceedings to be had upon the 1 7 2 RECORDS, and judicial proceedings of every other State. Full faith and credit shall be given in each State to the acta 4 1 Congress shall prescribe the manner of proving such acts, records, and pro- ceedings 4 1 REDRESS OF GRIEVANCES. Congress shall make no law abridging the right of the people peaceably to assemble and to petition for the. [Amend- ments] 1 REGULATIONS, except as to the places of choosing Senators. The time, places, and manner of holding elections for Senators and Representatives shall be prescribed by the legislatures of the States, but Congress may at any time by law make or alter such 14 1 REGULATIONS of commerce or revenue. Preference to the ports of one State over those of anotlier shall not be given by any 19 6 RELIGION or prohibiting the free exercise thereof. Congress shall make no law respecting the establishment of. [Amendments] 1 RELIGIOUS test shall ever be required as a qualification for any oflace or public trust under the L'nited States. No 6 .. 3 REMOVAL of the President from office, the same shall devolve on the Vice- President. In case of the 2 15 REPRESENTATION. No State, without its consent, shall be deprived of its equal suffrage in the Senate 5 REPRESENTATION and direct taxation, how apportioned among the several States. [Tliis pro^i8ion is changed by the fourteenth amendment, sec- tion 2] 12 3 REPRESENTATION until the first enumeration under the Constitution not to exceed one for every thirty thousand. The ratio of 12 3 REPRESENTATION in any State. The executive thereof shall issue writs of election to fill vacancies in the 1 2 4 REPRESENTATION among the several States shall be according to their re- spective numbers, counting the whole number of persons in each State, excluding Indians not taxed. The ratio of. [Amendments] 14 2 But where the right to vote in certain Federal and State elections is abridged for any cause other than rebellion or other crime the baaia of representation shall be reduced. [Amendments] 14 2 REPRESENTATIVES. Congress shall consist of a Senate and House of 1 1 Qualifications of electors of members of the House of 12 1 No person shall be a Representative who shall not have attained the age of twenty-five years, been seven years a citizen of the United States, and an inhabitant of the State in which he shall be chosen 12 2 And direct taxes, how apportioned among the several States. [Amended by fourteenth amendment, section 2] 12 3 Shall choose their Speaker and other officers. The House of 12 5 Shall have the sole power of impeachment. The House of 1 2 5 Executives of the States shall issue writs of election to fill vacancies in the House of 12 4 The times, places, and manner of choosing Representatives shall be pre- scribed by the legislatures of the States 1 4 1 But Congress may at any time by law make or alter such regulations except as to the places of choo.sing Senators 1 4 1 And Senators shall receive a compensation to be ascertained by law 1 6 1 54641 ° —22 12 171 Analytical Index. Pt.l. THE CONSTITUTION. Arti- Sec- cle. lion. Clause. 2 1 8 11 10 1 REPRESENTATIVES— Continued. Shall iu all cases, except treason, felony, and breach of the peace, be privi- leged from arrest during attendance at the session of the House, and in going to and returning from the same 1 6 1 Shall not be questioned in any otlier place for any speech or debate. Mem- bers of the House of 16 1 No member shall be appointed during his term to any civil office which shall have been created, or the emoluments of which shall have been increased, during such term 16 2 No person holding any office under the United States shall, while holding such office, be a Member of the House of 16 2 All bills for raising revenue shall originate in the House of 17 1 No Senator or Representative shall be an elector for President or Vice-Presi- dent 2 1 2 REPRESENTATIVES shall be bound by an oath or affirmation to support the Constitution of the United States. The Senators and 6 . . 3 REPRESENTATIVES among the several States. Provisions relative to the apportionment of. [Amendments] 11 2 REPRESENTATIVES AND SENATORS. Prescribing certain disqualifica- tions for office as. [Amendments] 14 3 But Congress may, by a vote of two-thirds of each House, remove such dis- qualification. [Amendments] 14 3 REPRIEVES and pardons except in cases of impeachment. The President may grant 2 REPRISAL. Congress shall have power to grant letters of marque and 1 No State shall grant any letters of marque and 1 REPUBLICAN form of government. The United States shall guarantee to every State in this Uniou a 4 And shall protect each of them against invasion; and on the application of the legislature or of the executive (when the legislatiu-e can not be con- vened), against domestic violence 4 RESERVED RIGHTS of the States and the people. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. [Amendments] 9 The powers not delegated to the United States by the Constitution, nor pro- liibited by it to the States, are reserved to the States, respectively, or to the people. [Amendments] 10 RESIGNATION, or inability of the President, the duties and powers of his office shall devolve on the Vice-President. In case of the death 2 RESIGNATION, or inability of the President. Congress may by lau provide for the case of the removal, death 2 RESOLUTION, or vote (except on a question of adjournment) requiring the concm-rence of the two Houses shall, before it becomes a law, be presented to the President. Every order 1 REVENUE shall originate in the House of Representatives. All bills for raising . 1 REVENUE. Preference shall not be given to the ports of one State over those of another by any regulations of commerce or 1 RHODE ISLAND entitled to one Representative in the First Congress 1 RIGHT OF PETITION. Congress shall make no law abridging the right of the people peaceably to assemble and to petition for the redress of grievances. [Amendments] 1 RIGHT TO KEEP AND BEAR ARMS. A well-regulated militia being neces- sary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. [Amendments] 2 RIGHTS in the Constitution shall not be construed to deny or disparage others retained by the people. The enumeration of certain. [Amendments]... 9 172 7 3 7 1 9 6 2 3 Pt. 1. THE CONSTITUTION. Analytical Index. Arti- Sec- rio„^» cle. tion. <^1^"^«- RIGHTS not delegated to the United States nor prohibited to the States are reserved to the States resijectively or to the people. [Amendments] 10 RULES of its proceedings. Each House may determine the 15 2 RULES AND REGULATIONS respecting the territory or other property of the LTnited States. Congress shall dispose of and make all needful 4 3 2 RULES OF THE COMMON LAW. All suits involving over twenty dollars shall be tried by jury according to the. [Amendments] 7 No fact tried by a jury shall be reexamined except according to the. [Amend- ments] 7 S. SALE of intoxicating liquors for beverage purposes prohibited. [Amendments]. 18 1 SCIENCE AND THE USEFUL ARTS by securing to authors and inventors the exclusive right to their writings and discoveries. Congress shall have power to promote the progress of 1 8 8 SEARCHES AND SEIZURES shall not be violated. The right of the people to be secure against unreasonable. [Amendments] 4 And no warrants shall be issued but upon probable cause, on oath or affirma- tion, describing the place to be searched and the person or things to be seized. [Amendments] .* 4 SEAT OF GOVERNMENT. Congress shall exercise exclusive legislation in all cases over such district as may become the 1 8 17 SECURITIES and cm-rent coin of the United States. Congress shall provide for punishing the counterfeiting of the 1 8 6 SECURITY OF A FREE STATE, the right of the people to keep and bear arms shall not be infringed. A well-regulated militia being necessary to the. [Amendments] 2 SENATE AND HOUSE OF REPRESENTATIVES. The Congress of the United States shall consist of a 1 1 SENATE OF THE UNITED STATES. The Senate shall be composed of two Senators from each State, chosen by the legislatiu*e for six years 1 3 1 [Repealed by the seventeenth amendment] 17 . . 1 If vacancies happen during the recess of the legislature of a State, the execu- tive thereof may make temporary appointments until the next meeting of the legislature 1 3 2 [Repealed by the seventeenth amendment] 17 . . 1 The Vice President shall be President of the Senate, but shall have no vote unless the Senate be equally divided 1 3 4 The Senate shall choose their other officers, and also a President pro tempore in the absence of the Vice President or when he shall exercise the office of President 1 3 5 The Senate shall have the sole power to trj^ all impeachments. "UTien sitting for that purpose they shall be on oath or affirmation 1 3 6 When the President of the Ignited States is tried the Chief Justice shall preside; and no person shall be convicted without the concurrence of two- thirds of the members present 1 3 6 It shall be the judge of elections, returns, and qualifications of its own mem- bers 15 1 A majority shall constitute a quorum to do business, but a smaller number may adjoiu-n from day to day, and may be authorized to compel the attend- ance of absent members 1 5 1 It may determine the rules of its proceedings, punish a member for disorderly behavior, and with the concurrence of two-thirds expel a member 1 5 2 It shall keep a journal of its proceedings, and from time to time publish the same, except such parts as may in their judgment require secrecy 1 5 3 173 Analytical Index. I't. 1. TUE CONSTITUTION. Artl- Sec- cle. tion. Clause. SENATE OF THE UNITED STATES— Continued. It shiill not adjourn for more than three days during a session without the consent of the other House 1 5 It may propose amendments to bills for raising revenue, but such bills shall originate in the House of Representatives 1 7 The Senate shall advise and consent to the ratification of all treaties, provided two-thirds of the memljers present concur 2 2 It shall advise and consent to the appointment of ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers not herein otherwise provided for 2 2 It may be convened by the President on extraordinary occasions 2 3 No State, without its consent, shall be deprived of its equal suffrage in the Senate 5 SENATORS shall, immediately after assembling, under their first election, be divided into three classes, so that the seats of one-third shall become vacant at the expiration of every second year 1 3 No person shall be a Senator who shall not be thirty years of age, nine years a citizen of the United States, and an inhabitant when elected of the State for which he shall be chosen 1 3 The times, places, and manner of choosing Senators may be fixed by the legislatiu-e of a State, but Congress may by law make or alter such regula- tions, except as to the places of choosing 1 4 If vacancies happen during the recess of the legislature of a State, the execu- tive thereof may make temporary appointments until the next meeting of the legislature. [Amendments] 1 [Repealed by the seventeenth amendment] 17 They shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of the Senate and in going to and returning from the same 1 And Representatives shall receive a compensation to be ascertained by law. . 1 Senators and Representatives shall not be questioned for any speech or debate in either House in any other place 1 No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the United States which shall have been created, or of which the emoluments shall have been increased, dm-ing such term 1 No person holding any office under the United States shall be a member of either House during his continuance in office 1 No Senator or Representative or person holding an office of trust or profit under the United States shall be an elector for President and Vice President . 2 Senators and Representatives shall be bound by an oath or affirmation to support the Constitution 6 No person shall be a Senator or Representative who having, as a Federal or State officer, taken an oath to support the Constitution, afterwards engaged in rebellion against the United States. [Amendments] 14 But Congress may, by a vote of two-thirds of each House, remove such dis- ability. [Amendments] 14 SERVICE OR LABOR in one State, escaping into another State, shall be de- livered up to the party to whom such service or labor may be due. Fugi- tives from 4 SERVITUDE, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist in the United States or any place subject to their jurisdiction. Neither slavery nor involuntary. [Amendments].. 13 SERVITUDE. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of. [Amendments] 15 174 3 2 - 2 6 1 6 1 Pt.l. THE CONSTITUTION. Analytical Index. Arti- Sec- p,„,„„ cle. tion. ^'ause. SHIPS OF WAR in time of peace, without the consent of Congrees. No State shall keep troops or 1 10 3 SILVER COIN a tender in payment of debts. No State shall make anything but gold and 1 10 1 SLAVE. Neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion, or any claim for the loss or emancipation of any. [Amendments] 14 4 SLAVERY nor involuntary servitude, except as a punishment for crime, whereof the party shall have been dtdy convicted, shall exist in the United States, or any places subject to their jiu-isdiction. Neither. [Amendments] 13 1 SOLDIERS shall not be quartered, in time of peace. In any house without the consent of the owner. [Amendments] 3 SOUTH CAROLINA entitled to five Representatives in the First Congress 12 3 SPEAKER and other officers. The House of Representatives shall choose their.. 12 5 SPEECH OR OF THE PRESS. Congress shall make no law abridging the freedom of. [Amendments] 1 SPEEDY AND PUBLIC trial by a jiu-y. In all criminal prosecutions the accused shall have a. [Amendments] 6 STANDARD OF WEIGHTS and measiu-es. Congress shall fix the 1 8 5 STATE OF THE ITNION. The President shall, from time to time, give Con- gress information of the 2 3 STATE LEGISLATURES, and all executive and judicial officers of the United States, shall take an oath to support the Constitution. All members of the several 6 .. 3 STATES. When vacancies happen in the representation from any State, the executive authority shall issue writs of election to fill such vacancies. [See seventeenth amendment] 1 2 4 Congress shall have power to regulate commerce among the several 1 8 3 No State shall enter into any treaty, alliance, or confederation 1 10 1 Shall not grant letters of marque and reprisal _ 1 10 1 Shall not coin money 1 10 1 Shall not emit bills of credit 1 10 1 Shall not make anything but gold and silver coin a tender in payment of debts 1 10 1 Shall not pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts 1 10 1 Shall not grant any title of nobility 1 10 1 Shall not, without the consent of Congress, lay any duties on imports or exports, except what may be absolutely necessary for executing its inspec- tion laws 1 10 2 Shall not, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war unless actually invaded or in such imminent danger as will not admit of delay 1 10 3 Full faith and credit in every other State shall be given to the public acts, records, and judicial proceedings of each State 4 1 Congress shall prescribe the manner of proving such acts, records, and pro- ceedings 4 1 Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States 4 2 1 New States may be admitted by Congress into tliis Union 4 3 1 But no new State shall be formed or erected within the jurisdiction of another State 4 3 1 Nor any State formed by the junction of two or more States or parts of States, without the consent of the legislatures as well as of Congress 4 3 1 175 cle. tion. C'^'^^- Analytical Index. Pt.l. TUE CONSTITUTION. Arti- Seo STATES— Continued . No State shall l)e deprived, without its consent, of its equal suffrage in the Senate 5 Three-fourths of the legislatures of the States or conventions of three-fourths of the States, as Congress shall prescribe, may ratify amendments to the Constitution 5 The United States shall guarantee a republican form of government to every State in the Union 4 4 They shall protect each State against invasion 4 4 And on application of the legislature, or the executive (when the legislature can not be convened), against domestic violence 4 4 The ratification by nine States shall be sufficient to establish the Constitution between the States so ratifying the same 7 When the choice of President shall devolve on the House of Representatives, the vote shall be taken by States. [Amendments] 12 But in choosing the President the vote shall be taken by States, the repre- sentation from each State having one vote. [Amendments] 12 A quorum for choice of President shall consist of a member or members from two- thirds of the States, and a majority of all the States shall be necessary to a choice. [Amendments] 12 Shall have concurrent power with Congress to enforce, by appropriate legisla- tion, eighteenth amendment. [Amendments] 18 2 STATES or to the people. Powers not delegated to the United States, nor pro- hibited to the States, are reserved to the. [Amendments] 10 SUFFRAGE in the Senate. No State shall be deprived without its consent of its equal 5 SUFFRAGE, Woman, nineteenth amendment. [Amendments] 19 SUITS at common law, where the value in controversy shall exceed twenty dollars, shall be tried by jury. [Amendments] 7 In law or equity against one of the States by citizens of another State or by citizens of a foreign State. The judicial power of the United States shall not extend to. [Amendments] 11 SUPREME COURT. Congress shall have power to constitute tribunals inferior to the 18 9 SUPREME COURT, and such inferior courts as Congress may establish. The judicial power of the United States shall be vested in one 3 1 The judges of the Supreme and inferior courts shall hold their offices during good behavior 3 1 The compensation of the judges shall not be diminished during their con- tinuance in office 3 1 SUPREME COURT shall have original jurisdiction in all cases affecting ambas- sadors, other public ministers and consuls, and in which a State may be a party. The 3 2 2 Shall have appellate jurisdiction, both as to law and fact, with such excep- tions and regulations as Congress may make. The 3 2 2 SUPREME LAW of the land. This Constitution, the laws made in pursuance thereof, and the treaties of the United States shall be the 6 . . 2 The judges in every State shall be bound thereby 6 .. 2 SUPPRESS insurrections, and repel invasions. Congress shall provide for call- ing forth the militia to execute the laws 1 8 15 SUPPRESSION of insurrection or rebellion, shall not be questioned. The public debt, including the debt for pensions and bounties incurred in the. [Amendments] 14 4 176 Pt. 1. THE CONSTITUTION. Analytical Index. Arti- Sec- r^i^.-.^^ cle. tion. Clause. T. TAX shall be laid unless in proportion to the census or enumeration. No capi- tation or other direct. [See sixteenth amendment] 1 9 4 TAX or duty shall be laid on articles exported from any State. No 19 5 TAXES (direct) and Representatives, how apportioned among the several States. [See fourteenth amendment, section 2] 12 3 TAXES (direct). Congress shall have power to collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. The sixteenth amend- ment. [Amendments] 16 TAXES, duties, imposts, and excises. Congress shall have power to lay 18 1 They shall be uniform throughout the United States. [See sixteenth amend- ment] 18 1 TEMPORARY APPOINTMENTS until the next meeting of the legislature. If vacancies happen in the Senate in the recess of the legislature of a State, the executive of the State shall make. [Repealed by seventeenth amendment]. 13 2 TENDER in payment of debts. No State shall make anything but gold and silver coin a 1 10 1 TERM OF FOUR YEARS. The President and Vice-President shall hold their offices for the 2 11 TERM for which he is elected. No Senator or Representative shall be appointed to any office under the United States which shall have been created or its emoluments increased during the 16 2 TERRITORY or other property of the United States. Congress shall dispose of and make all needful rules and regulations respecting the 4 3 2 TEST as a qualification for any office or public trust shall ever be required. No religious 6 .. 3 TESTIMONY of two witnesses to the same overt act, or on confession in open court. No person shall be convicted of treason except on the 3 3 1 THREE-FOURTHS OF THE LEGISLATURES of the States, or conventions in three-fourths of the States, as Congress shall prescribe, may ratify amendment? to the Constitution 5 TIE. The Vice-President shall have no vote unless the Senate be equally divided 13 4 TIMES, PLACES, AND MANNER of holding elections for Senators and Repre- sentatives shall be prescribed in each State by the legislature thereof 14 1 But Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators 14 1 TITLE OF NOBILITY. The United States shall not grant any 19 8 No State shall grant any 1 10 1 TITLE of any kind, from any king, prince, or foreign State, without the consent of Congress. No person holding any office under the United States shall accept of any 19 8 TONNAGE without the consent of Congress. No State shall lay any duty of 1 10 3 TRANQUILLITY, provide for the common defense, etc. To insure domestic. [Preamble.] TRANSPORTATION of intoxicating liquors for beverage purposes prohibited. [Amendments] 18 1 TREASON shall consist only in levying war against the United States, or in adhering to their enemies, giving them aid and comfort 3 3 1 TREASON. No person shall, unless on the testimony of two witnesses to the same overt act, or on confession in open coiu"t, be convicted of 3 3 1 Congress shall have the power to declare the punishment of 3 3 2 Shall not work corruption of blood. Attainder of 3 3 2 1T7 Analytical Index. Pt. 1. THE CONSTITUTION. Artl- Sec- ^, cle. tion. ^i"^^®- TREASON. Shall not work forfeiture, except during the life of the person attainted. Attainder of 3 3 2 TREASON, BRIBERY, or other high crimes and misdemeanors. The Presi- dent, Vice-President, and all civil officers shall be removed from office on impeachment for and conviction of 2 4 TREASON, FELONY, AND BREACH OF THE PEACE. Senators and Repre- sentatives shall be privileged from arrest while attending or while going to or returning from the sessions of Congress, except in cases of 1 6 1 TREASURY, but in consequence of appropriations made by law. No money shall be drawn from the 1 9 7 TREATIES. The president shall have power, with the advice and consent of the Senate, provided two-thirds of the Senators present concur, to make 2 2 2 The judicial power shall extend to all cases arising under the Constitution, laws, and 3 2 1 They shall be the supreme law of the land, and the judges in every State shall be bound thereby 6 .. 2 TREATY, alliance, or confederation. No State shall enter into any 1 10 1 TRIAL, judgment, and punishment according to law. Judgment in cases of im- peachment shall not extend further than to removal from and disqualifi- cation for office; but the party convicted shall nevertheless be liable and subject to indictment 13 7 TRIAL BY JURY. All crimes, except in cases of impeachment, shall be tried by jury 3 2 3 Such trial shall be held in the State within which the crime shall have been committed 3 2 3 But when not committed within a State, the trial shall be at such place as Congress may by law have directed 3 2 3 In all criminal prosecutions the accused shall have a speedy and public. [Amendments] 6 Suits at common law, when the amount exceeds twenty dollars, shall be by. [Amendments] 7 TRIBUNALS inferior to the Supreme Court. Congress shall have power to con- stitute 18 9 TROOPS or ships of war in time of peace without the consent of Congress. No State shall keep 1 10 3 TRUST AND PROFIT under the United States shall be an elector for President and Vice President. No Senator, Representative, or person holding any office of 2 12 TWO-THIRDS of the members present. No person shall be convicted on impeachment without the concurrence of 1 3 6 TWO-THIRDS, may expel a member. Each House, with the concurrence of . . 1 5 2 TWO-THIRDS. A bill returned by the President with his objections may be repassed by each House by a vote of 1 7 2 TWO-THIRDS of the Senators present concur. The President shall have power, by and with the advice and consent of the Senate, to make treaties, pro- vided 2 2 2 TWO-THIRDS of the legislatures of the several States. Congress shall call a convention for proposing amendments to the Constitution on the applica- tion of 5 TWO-THIRDS of both Houses shall deem it necessary. Congress shall propose amendments to the Constitution whenever 5 TWO-THIRDS of the States. WTien the choice of a President shall devolve on the House of Representatives, a quorum shall consist of a member or members from. [Amendments] 12 ' .. 178 Pt.l. THE CONSTITUTION. Analytical Index. Arti- Sec- (;.i„,,_(, cle. tion. ^^^^^°' TWO-THIRDS of the whole number of Senators. A quorum of the Senate, when choosing a Vice President, shall consist of. [Amendments] 12 TWO-THIRDS, may remove the disabilities imposed by the third section of the fourteenth amendment. Congress, by a vote of. [Amendments] 14 3 TWO YEARS. Appropriations for raising and supporting armies shall not be for a longer term than 1 8 12 U. UNION. To establish a more perfect. [Preamble.] The President shall, from time to time, give to Congress information of the state of the 2 3 New States may be admitted by Congress into this 4 3 1 But no new State shall be formed or erected within the jurisdiction of another State 4 3 1 UNREASONABLE searches and seizures. The people shall be secured in their persons, houses, papers, and effects against. [Amendments] 4 And no warrants shall be issued but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the 9 persons or things to be seized . [Amendments] 4 UNUSUAL punishments inflicted. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and. [Amendments] 8 USE without just compensation. Private property shall not be taken for public. [Amendments] 5 USEFUL arts, by securing for limited times to authors and inventors the exclusive right to their writings and inventions. Congress shall have power to promote the progress of science and the 1 8 8 V. VACANCIES happening in the representation of a State. The executive thereof shall issue writs of election to fill I 2 4 VACANCIES happening in the Senate in the recess of the legislature of a State. How filled. [See seventeenth amendment] 13 2 VACANCIES that happened during the recess of the Senate, by granting com- missions which shall expire at the end of the next session. The President shall have power to fill 2 2 3 VALIDITY of the public debt incurred in suppressing insurrection against the United States, including debt for pensions and bounties, shall not be questioned. [Amendments] 14 4 VESSELS bound to or from the ports of one State shall not be obliged to enter, clear, or pay duties in another State 1 9 6 VETO of a bill by the President. Proceedings of the two Houses upon the 1 7 2 VICE-PRESIDENT of the United States shall be President of the Senate 13 4 He shall have no vote unless the Senate be equally divided 13 4 The Senate shall elect a President pro tempore in the absence of the I 3 5 He shall be chosen for the term of four years 2 1 1 The number and the manner of appointing electors for President and 2 12 In case of the removal, death, resignation, or inability of the President, the powers and duties of his office shall devolve on the 2 1 5 VICE-PRESIDENT. Congress may provide by law for the case of the removal, death, resignation, or inability both of the President and 2 1 5 On impeachment for and conviction of treason, bribery, and other high crimes and misdemeanors shall be removed from office. The 2 4 The manner of choosing the. The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves. [Amend- ments] 12 179 Analytical Index. Pt. 1. THE CONSTITUTION. "St So^ Clause. VICE-PRESIDENT. The electors shall name, in distinct ballots, the person voted for as Vice-President. [Amendments] 12 They shall make distinct lists of the persons voted for as Vice-President, which lists they shall sign and certify, and send sealed to the seat of gov- ernment, directed to the President of the Senate. [Amendments] 12 The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. [Amendments] 12 The person having the greatest number of votes shall be Vice-President, if such number be a majority of the whole number of electors. [Amend- ments] 12 If no person have a majority, then from the two highest numbers on the list the Senate shall choose the Vice-President. [Amendments] 12 A quorum for this purpose shall consist of two-thirds of the whole number of Senators; and a majority of the whole number shall be necessary to a choice. [Amendments] 12 But if the House shall make no choice of a President before the 4th of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. [Amendments] 12 No person constitutionally ineligible as President shall be eligible as. [Amendments] 12 VIOLENCE. The United States shall guarantee to every State a republican form of government, and shall protect each State against invasion and domestic 4 4 VIRGINIA entitled to ten representatives in the First Congress 1 2 3 VOTE. Each Senator shall have one 13 1 The Vice-President, unless the Senate be equally divided, shall have no. . . 1 3 4 VOTE requiring the concurrence of the two Houses (except upon a question of adjournment) shall be presented to the President. Every order, resolu- tion, or 17 3 Shall not be denied or abridged by the United States or by any State on ac- count of race, color, or previous condition of servitude. The right of citi- zens of the United States to. [Amendments] 15 1 Shall not be denied or abridged on account of sex. [Amendments] 19 VOTE OF TWO-THIRDS. Each House may expel a member by a 1 5 2 A bill vetoed by the President may be repassed in each House by a 1 7 2 No person shall be convicted on an impeachment except by a 13 6 Whenever both Houses shall deem it necessary, Congress may propose amend- ments to the Constitution by a 5 The President may make treaties, vnth. the advice and consent of the Sen- ate, by a 2 2 2 Disabilities incurred by participation in insurrection or rebellion may be relieved by Congress by a. [Amendments] 14 3 W. WAR, grant letters of marque and reprisal, and make rules concerning captures on land and water. Congress shall have power to declare 1 8 11 For governing the land and naval forces. Congress shall have power to make rules and articles of 1 8 14 No State shall, ^vithout the consent of Congress, unless actually invaded, or in such imminent danger as -ttdll not admit of delay, engage in 1 10 3 WAR against the United States, adhering to their enemies, and gi^^.ng them aid and comfort. Treason shall consist only in levying 3 3 1 180 Pt.l. THE CONSTITUTION. Analytical Index. ^"- ^^ Clause. cle. tion, WARRANTS shall issue but upon probable cause, on oath or affirmation, de- scribing the place to be searched and the persons or things to be seized. No. [Amendments] 4 WEIGHTS AND MEASURES. Congress shall fix the standard of 1 WELFARE, and to secure the blessings of liberty, etc. To promote the general. [Preamble.] WELFARE. Congress shall have power to provide for the common defense and general 1 WITNESS against himself. No person shall, in a criminal case, be compelled to be a. [Amendments] 5 WITNESSES against him. In all criminal prosecutions the accused shall be confronted with the. [Amendments] 6 WITNESSES in his favor. In all criminal prosecutions the accused shall have compulsory process for obtaining. [Amendments] 6 WITNESSES to the same overt act, or on confession in open court. No person shall be convicted of treason unless on the testimony of two 3 WRIT OF HABEAS CORPUS shall not be suspended, unless in case of rebellion or invasion the public safety may require it 1 WRITS of election to fill vacancies in the representation of any State. The ex- ecutive of the State shall issue 1 WRITTEN opinion of the principal officer in each of the Executive Departments on any subject relating to the duties of his office. The President may re- quire the 2 Y. YEAS AND NAYS of the members of either House shall, at the desire of one- fifth of those present, be entered on the journals I The votes of both Houses upon the reconsideration of a bill returned by the President with his objections shall be determined by 1 181 PART 2. THE REVISED STATUTES OF THE UNITED STATES, 183 To revise and consolidate the statutes of the United States, in force on tlie first day of December, anno Domini one thousand eight hundred and seventy-three. TITLE I. GENERAL PROVISIONS. CHAPTER ONE. Sec. 1. Definitionfi. 2. County. 3. Vessel. Sec. 4. Vehicle. 5. Company, association. 6. Seal. Be it enacted by the Senate and House of Rej^resentatives of the United States of America in Congress assembled, [Definitions.] In determining the meaning of the revised statutes, or of any act or resolution of Congress passed sub- sequent to February twenty-fifth, eighteen hundred and seventy-one, words importing the singular number may extend and be apphed to several persons or things; words importing the plural " number may include the singular; words importing the mascuHne gender may be applied to females; the words "insane person" and "lunatic" shall include every idiot, non compos, lunatic, and insane person; the word '/person" may extend and be applied to partnersliips and corporations, and the reference to any officer shall include any person authorized by law to perform the duties of such office, unless the context shows thixt such words were intended to be used in a more limited sense ; and a require- ment of an "oath" shall be deemed compHed with by making affirmation in judicial form.— (25 Feb., 1871, c. 71, s. 2, v. 16, p. 431 ; 13 July, 1866, c. 184, s. 44, V. 14, p. 163 ; 30 June, 1864, c. 173, ss. 82, 126, v. 13, pp. 258, 287; 20 July, 1868, c. 186, s. 104, v. 15, p. 166.) Sec. 2. [County.] The word "county" includes a parish, or any other equivalent subdivision of a State or Territory of the United States. — (13 July, 1866, c. 184, s. 9, v. 14, pp. 98, 110.) Sec. 3. [Vessel.] Tlie word "vessel" includes every description of water- craft or other artificial contrivance used, or capable of being used, as a means of transportation on water.— (18 July, 1866, c. 201, s. 1, v. 14, p. 178; 29 June, 1870, c. 169, s. 7, V. 16, p. 170.) Sec. 4. [Vehicle.] The word "vehicle" includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land. — (18 July, 1866, c. 201, s. 1, v. 14, p. 178.) 185 Sec. 6. PT.2. REVISED STATUTES. General Provisions. Sec. 5. [Company, association.] The word "company" or "association," when used in reference to a corporation, shall be deemed to embrace the words "successors and assigns of sucli company or association," in like manner as if these last-named words, or words of similar import, were expressed. — (25 July, 1866, c. 242, s. 9, v. 14, p. 241.) Sec. 6. [Seal.] In all cases where a seal is necessary by law to any commis- sion, process, or other instrument provided for by the laws of Congress, it shall be la^\'ful to affix the proper seal by making an impression therewith directly on the paper to which such seal is necessary; which shall be as valid as if made on wax or other adhesive substance. — (31 May, 1854, c. 60, s. 2, v. 10, p. 297.) 186 A CHAPTER TWO. FORM OF STATUTES AND EFFECT OF REPEALS. Sec. 7. Enacting clause. 8. Resolving clause. 9. No enacting words after first section. 10. Numbering and frame of sections. Sec. 11. Title of appropriation acts. 12. Repeal not to revive former act. 13. Repeals not to affect Liabilities, unless, etc. Sec. 7. [Enacting clause.] The enacting clause of all acts of Congress hereafter enacted shall be in the f oUo^ving form : ' ' Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled."— (25 Feb., 1871, c. 71, s. 1, v. 16, p. 431.) Sec. 8. [Resolving clause.] The resolving clause of all joint resolutions shall be in the following form: "Resolved by the Senate and House of Repre- sentatives of the United States of America in Congress assembled." — -(25 Feb. 1871, c. 71, s. 1, V. 16, p. 431.) Sec. 9. [No enacting words after first section.] No enacting or resolving words shall be used in any section of an act or resolution of Congress except in the first.— (25 Feb., 1871, c. 71, s. 1, v. 16, p. 431.) Sec. 10. [Numbering and frame of sections.] Each section shall be numbered, and shall contain, as nearly as may be, a single proposition of enactment. — (25 Feb., 1871, c. 71, s. 1, v. 16, p. 431.) Sec. 11. [Title of appropriation acts.] The style and title of all acts making appropriations for the support of Government shall be as follows: "An act making appropriations, (here insert the object) for the year ending June thirtieth (here insert the calendar year). — (26 Aug., 1842, c. 207, s. 2, v. 5, V. 537 [should be ''p. 537."]) Sec. 12. [Repeal not to revive former act.] Whenever an act is repealed, which repealed a former act, such former act shall not thereby be revived, imless it shall be expressly so provided. — (25 Feb., 1871, c. 71, s. 3, v. 16, p. 431.) Sec. 13. [Repeals not to affect liabilities, unless, &c.] The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liabihty incm-red under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaming in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or Uabihty.— (25 Feb., 1871, c. 71, s. 4, v. 16, p. 432; United States v. Ukici, 3 Dill., 532.) 54641°— 22- 13 187 TITLE IV. PROVISIONS APPLICABLE TO ALL THE EXECUTIVE DEPARTMENTS. Sec. 158. Application of pro\-isions of this title. 159. "Department" defined. 160. Salaries of heads of departments. 161. Departmental regulations, property, and records. 162. Hours of business. 163. Classification of department clerks. 164. Examinations for appointment. 165. Clerkships open to vromen. 166. Distribution of clerks, temporary" detail. 167. Salaries of persons employed in the de- partments. 168. Temporary' clerks. 169. Appointrnent, number, and compensation of employees authorized . 170. Extra compensation to clerks restricted. 171. Employment of extra clerks during ses- sions of Congress. 172. Restriction on employment of messengers and laborers. 173. Duties of chief clerk; supervising subor- dinates. 174. Duties of chief clerks; monthly reports, etc. 175. Action on reports of chief clerks. 176. Disbursing clerks. 177. Vacancies in head of department; how temj)orarily filled. 178. Vacancies in subordinate offices. Sec. 179. Vacancies, authority of President to fill temporarily. 180. Temporary appointments limited to 30 days. 181. Restriction on temporary appointments. 182. Extra compensation disallowed. 183. Oaths, when administered by officers, etc. 184. Claims pending in depaitments— Sub- poenas to witnesses. 185. Witnesses' fees. 186. Compelling testimony. 187. Legal assistance in connection with claims. 188. Suits in Court of Claims — Evidence fur- nished by departments. 189. Employment of attorneys or counsel. 190. Persons formerly in departments not to prosecute claims. 191. Certified balances conclusive in settle- ment of public accounts. 192. Expenditures for newspapers. 193. Annual report of expenditures from con- tingent funds. 194. Report of clerks employed. 195. Time of making annual reports to Con- gress. 196. Time of furnishing annual reports to printer. 197. Inventories of department property. 198. Data to be furnished for biennial register. Sec. 158. [Application of provisions of this Title.] The provisions of this Title shall apply to the following Executive Departments : First. The Department of State. Second. The Department of War. Third. The Department of the Treasury. Fourth. The Department of Justice. Fifth. The Post Office Department. Sixth. The Department of the Navy. Seventh. The Department of the Interior. For laws and decisions relating to the organiza- tion of the Department of the Navy, its bureaus and offices, see Title X, "The Department of the Navy," sections 415 to 436, Rexdsed Statutes. Origin and Growth of Executive Depart- ments. Recognized by the Constitution. — The Constitution provides that "the Executive power shall be vested in the President of the United States," but the Constitution does not specify the subordinate administrative func- tionaries by whose agency or counsels the de- tails of the public business are to be transacted. It recognizes the existence of such ofiicial agents and advisers in saying that the President "may require the opinion, in writing, of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices"; and these ofiicers are again recognized by the Constitution in the clause which vests the appointment of certain inferior 189 Sec. 158. Pt.2. REVISED STATUTES. Executive Departments. oflicers "ill the heads of departments"; and it leaves the number and the organization of those departments to be detennined by Congress. Department of State.— In tiie execution of this duty tlie Constitutional Congress pro- ceeded, at an early day of its lirst session (J uly 27, 1789), to establish the Department of For- eign Affairs, with "a principal oflicer therein," to be called the Secretary for the Department of Foreign Affairs. But this act, which was the commencement of the organization of executive departments under the Constitution, and a commencement in the direction of a systematic and proper dis- tribution of duties, gave place, after the lapse of a few months (Sept. 15, 1789), to an act which changed the name of the Department of Foreign Al'fairs to that of Department of State. Department of War. — Next, Congress es- tablished the Department of War (Aug. 7, 1789), with a principal ofiicer therein to be called the Secretary for the Department of War, and re- quired to perform duties relative to military or naval affairs. Department of Treasury. — Next came a Departmentof Treasury' (Sept.2, 1789), the head of it being called tlie Secretary of the Treasury. Attorney General. — ^ft the same eetjsion of Congress, in organizing the judicial business of the United States (Sept. 24, 1789), provision was made for an Attorney General. Postmaster General. — By another act (Sept. 22, 1789) theofficeof Postmaster General was appointed, subject to the direction of the President, but not in other respects then placed en the same high official relation to the Gov- irmnent as at the present time. Original Cabinet. — Such was the original basis of the executive organization of the Gov- ernment. The Secretary of State for political and foreign affairs, the Secretary of War for military and naval matters, the Secretary of the Treasury for those of finance, and the Attorney General for legal and judicial ones, were the immediate superior ministerial officers of the President, and his constitutional counselors during the whole period of the administration of Washington. The Cabinet, so called, con- sisted of these four officers, who, though not in any sense an organized body with legal attri- butes as such, yet proceeded to act in concert. Department of the Navy. — No material modification occurred in the great outlines of superior administration until during the ad- ministration of John Adams, when the magni- tude of our commerce and the importance of our maritime relations induced the Govern- ment to pay more attention to the military marine and to establish the Department of the Navy, the chief officer of which to be called the Secretary of the Navy, whose duty it should be to execute such orders as he might receive from the President relative to the procurement of naval stores and materials, and the construc- tion, armament, eciuipment, and employment of vessels of w^ar, as well as to all other matters connected with the naval establishment of the United States. (Act Apr. 30, 1798.) Postmaster General elevated to Cabi- net. — Subsequently to this, and in the long period of the administrations of Jefferson, Madi- son, Monroe, and John Quincy Adams, no change in the general character of the executive de- partments took place, although all of them underwent more or less mothfication in details. But, at the opening of Jackson's administration [1829], the Postmaster General, whose duties and responsibilities had grown with the growth of the country to be of vast importance, was called, as the public interests required he should be, to the same duties of a cabinet coun- selor of the President which had been dis- charged theretofore by the four Secretaries (State, War, Treasury, and Navy) and the Attorney General. This fact constituted the first important alteration in the arrangements of superior administrative duty and accounta- bility which had occurred since 1798, when the Department of the Navy was established. Department of the Interior. — By an act passed at the close of Mr. Polk's administration (Mar. 3, 1S49), in order to relieve the Depart- ments of State, War, Treasury, and Navy of branches of public business which now required to be placed in other hands, a new executive department was organized, to be called the Department of the Interior. (6 Op. Atty. Gen., 326, Mar. 8, 1854.) Department of Agriculture. — Was estab- lished by act of May 15, 1862 (12 Stat., 387), sec- tion 520, Revised Statutes, but was not made one of the "executive departments" within the meaning of section 158, Revised Statutes, until the act of February 9, 1889 (25 Stat., 659). Department of Commerce. — Was estab- lished as an executive department, under the name of Department of Commerce and Labor, byact of February 14, 1903 (32 Stat., 825). Its name was changed to Department of Commerce by act of March 4, 1913 (37 Stat., 736). Department of Labor. — A\'as established as a separate executive department by act of March 4, 1913 (37 Stat., 736), which amended the act establisliing the Department of Com- merce and Labor accordingly, making two de- partments, viz, the Department of Commerce and the Department of Labor, instead of one department, as theretofore. Precedence of executive departraents and Cabinet oflS.cers. — The Department of the Navy is sixth in order of precedence among the executive departments (see sec. 158, R. S., above); and by act of January 19, 1886 (24 Stat., 1), the Secretary of the Navy is sixth in order of precedence among the Cabinet officers in the matter of succession to the duties of the Presi- dent, following next after the Postmaster General. Status of executive departments. — Ex- ecutive departments, with their heads, are not mere agents of the Government, with no power except such as is expressly conferred, but are, on the contrary, parts of the Government itself, of the executive and coordinate branch of the Government, and their acts when executive are the acts of the Government itself. (22 Op. Atty. Gen., 437, 444.) Nature of duties. — In general, the official duties of the head of one of the executive de- partments, whether imposed by act of Congress or by resolution, are not mere ministerial duties; the head of an executive department of the 190 Executive Departments. PL 2. REVISED STATUTES Sec. 159. Government, in the administration of the vari- ous and important concerns of his office, is continually required to exercise judgment and discretion; he must exercise his judgment in expoimding the laws and resolutions of Congress under which he is, from time to time, required to act; if he doubts, he has a right to call on the Attorney General to assist him with his counsel; and it would be difficult to imagine why a legal adviser was provided by law for the heads of departments, as well as for the Presi- dent, unless their duties were regarded as execu- tive,in which judgmentand discretion were to be exercised. (Decatur v. Paulding, 14 Pet., 497.) The President speaks and acts through the heads of the several departments in rela- tion to subjects which appertain to their respec- tive duties. Hence the act of the Secretary of War or Secretary of the Navy in a matter under his jurisdiction is considered as being in legal contemplation the act of the President. (Wil- cox -?;. Jackson, 13 Pet. ,498, 513; U.S.i;. Cutter, 25 Fed. Cas. No. 14911; see also, Wolsey v. Chap- man, 101 U. S.,755, 769; Williams ^ij. U. S., 1 How., 290; Jones^;. U. S., 137U. S., 202; Truitt V. U. S., 38 Ct. Cls., 398; U. S. v. Eliason, 16 Pet., 291, 302; Confiscation Cases, 20 Wall., 92, 109; U. S. V. Farden, 99 U. S., 10, 19; Runkle -y. U. S., 122 U. S., 543, 557; U. S. v. Fletcher, 148 U. S., 84, 88; Wood v. Beach, 156 U. S., 548.) Their acts in such matters may be presumed to have been done by the approbation and direction of the President (Weller v. U. S., 41 Ct. Cls., 324; Adams v. U. S., 42 Ct. Cls., 211), except where he must act judiciallv (Truitt v. U. S., 38 Ct. Cls., 398; Runkle v. U. S., 122 U. S., 543,_ 557), for they are the eyes and hands of the President, to execute the laws and his executive rules and regulations (6 Comp. Dec, 61); and it is not nec- essary that orders issued by them should contain express reference to the direction of the Presi- dent; whether he is named or not, the act or order is to have legal effect as by construction the act or the order of the supreme executive authority, civil and military, of the United States. (7 Op. Atty. Gen., 453.) See also Adams v. U. S., 42 Ct. Cls., 191. Many things may be done by the head of an executive de- partment without the actual signature of the President which when done are his acts; but in such case the document should declare it to be the act of the President, performed by the head of the department as his representa- tive. (22 Op. Atty. Gen., 82.) Where an order purports on its face to be issued by direction, not of the Presi- dent but of the Secretary of War, there is nothing to show that the President exercised his discretion under a law providing that the act should be done in the discretion of the President. No one but the President, or the Secretary acting for him as his constitutional organ, can fulfill the requirements of the act; nor can the Secretary delegate to a subordinate the authority to act for the President so as to fix liability upon the Government. (Truitt v. U. S., 38 Ct. Cls., 398. See also Weller -w. U. S., 41 Ct. Cls., 324, 336, and note 8, sec. 1393, R. S.) In all the cases considered — and we are aware of no authority to the contrary — it will be noted that the power of the President was exercised through the head of the department and not by a subordinate. (Truitt?;. U. S., 38 Ct. Cls., 404.) Tlie signature of the head of a department does not recniire the use of pen and ink, lield and guided by the hand of the person himself. The impress of his name with a stamp or copperplate by himself or in his presence is legally sufficient. (1 Op. Atty. Gen., 670.) Ofl&cers of the Navy are not agents of the Secretary of the Navy, but, like the Secretary himself, are the agents and repre- sentatives of the President, who is the Com- mander in Chief of the Army and Navy; and any authority the Secretary may exercise over them he exercises solely as representative of the President. (McGowan v. Moody, 22 App. D.C.,148.) For other decisions, see note to section 417, Revised Statutes. Sec. 159. ["Department," defined.] The word "Department," when used alone in this Title, and Titles five, six, seven, eight, nine, ten, and eleven, means one of the Executive Departments enumerated in the preceding section. have no existence elsewhere. Only those bureaus and offices can be deemed bm-eaus and offices in any of these departments which are constituted such by law of its organization. The department, with its bureaus or offices, is in the contemplation of the law an establish- ment distinct from the branches of the public service and the offices thereof which are under its supervision. Thus the office of postmaster or of collector of internal revenue or of pension agent or of consul is not properly a department office — not an office in the department having supervision over the branch of the public service to which it belongs. True^ an official relation exists here between the office and the department, one, moreover, of subordination of the former to the latter; but this does not make the office a part of the department. (15 Op. Atty. Gen., 262, 267; 26 Op. Atty. Gen., 254.) The Marine Corps headquarters is a part of the Naval Establishment, but it is not a part Application op Section. Departments established since Revised Statutes. — The terms "departments" and "executive departments" as used in acts of Congress and in the Revised Statutes invariably apply to one or more of the several executive departments mentioned in section 158, Revised Statutes, or included within the terms of that section by subsequent enactments, unless a different meaning is clearly indicated by the context. (26 Op. Atty. Gen., 209.) The term "executive departments" in the Federal statutes refers only to those depart- ments specified in section 158, Revised Stat- utes, to which certain other departments have since been added. (22 Op. Atty. Gen., 62.) See note to section 158, Revised Statutes. Offices not at seat of government. — The several executive departments are by law established at the seat of govermuent; they 191 Sec. 169. rt. 2. REVISED STATUTES. Executive Departments. of the Navy Department as established at the eeat of Government; it ia under the supervision of the executive department, but that rehition to the department is not the same as being a part of it. (11 Comp. Dec, 558; file 4600, Apr. 10, 1SK)6; 21686, Apr. 11, 1906.) Field services, Army, Postal Service. — The term "executive department" refers only to what may be called the department proper located at Wa.shin,<;ton, and does not include those adjuncts of a department ensj^aged wholly in field service; nor the Army, which is not a part of the War Department proper. (4 Comp. Dec., 551; see also 5 Comp. Dec, 667; 7 Comp. Dec, 126.) Several of the executive departments have field services as parts thereof, and have bureaus and offices attached to them by law with their respective field services. Certain other general Govermuent establishments, such as the Recla- mation Service, put under the control of the Secretary of the Interior by law, are not parts of the Interior Department (within the sense of the public printing act). Like conditions are found in other departments of the Govern- ment. The Army is under the administrative control of the Secretary of War, but is not a part of the executive department called the War Department located at the seat of government, and its support is specifically appropriated for. A like condition exists as to the Postal Service as distinguished from the Post Office Depart- ment here at the seat of government. (11 Comp. Dec, 601; 27 Op. Atty. Gen., 427; 13 Comp. Dec, 733; 15 Comp. Dec, 297; 10 Comp. Dec, 771; 15 Comp. Dec, 111; 20 Comp. Dec, 4.) The Reclamation Service is not a department or establishment of the Government in Wash- ington, but a field ser\ice. (20 Comp. Dec, 42.) A clerk in a navy yard is not a clerk in an executive department, although the navy yard is under the supervision of one of the executive departments. But a clerk who is performing duties away from a department but by direct orders from and under supervision of the de- partment is regarded as a clerk in the depart- ment within the act of June 22, 1906, section 5 (34 Stat., 449), restricting transfers of employees from one department to another department. (26 Op. Atty. Gen., 254.) Employees of the navy yard and gun factory in Washington are under the Navy Depart- ment but are not a part of an executive de- partment. (11 Comp. Dec, 97.) Forest Service, Department of Agri- culture. — A clerk in the field service of the Forest Service, Department of Agriculture, is not a clerk in an executive department. (27 Op. Atty. Gen., 100.) The Forest Service in Washington is part of the Department of Agriculture, and clerks on the rolls of the Forest Service in Washington are clerks in an executive department. (27 Op. Atty. Gen., 421.) That portion of the Forest Service in the field outside of Washington is not a part of the De- partment of Agriculture proper, and printing for such field service is not printing for an execu- tive department. (14 Comp. Dec, 723; see 27 Op. Atty. Gen. ,426.) Independent commission, board, or of- fice. — No board, bureau, or office which is not expressly or by implication under the control of one of the executive departments can be considered as belonging properly to one of them. The Civil Service Commission is not attached in any way to any of the executive departments, nor is it subject in any wise to the control of any of the heads of such depart- ments. (22 Op. Atty. Gen., 62.) The Civil Service Commission is not an exec- utive department within the meaning of section 190, Revised Statutes, respecting the prosecu- tion of claims. (25 Op. Atty. Gen., 6.) The Government Printing Office is not a bureau or division of either of the executive departments. (U. S. v. Allison, 91 U. S., 303, reversing 10 Ct. Cls., 449.) The office of the warden of the jail. District of Columbia, is a bureau or division of the De- partment of the Interior, it appearing that the whole subject of the jail is under the super- vision of the Secretary of the Interior, to whom the warden is required to report. (Manning's case, 13 Wall., 578; explained in U. S. v. Alli- son, 91 U. S., 307.) The term "department" as used in laws relating to the civil service is distinguished from "office," "bureau," and "branch," and subordinates of the several executive depart- ments are distinguished from employees of the last-mentioned governmental agencies. The Government Printing Office, the Interstate Commerce Commission, and the Smithsonian Institution are independent of any of the ex- ecutive departments mentioned in section 158, Revised Statutes. The Bureau of Insular Affairs is an integral part of the War Department. (26 Op. Atty. Gen., 209.) The accounting oflB.cers of the Treasury do not constitute a "department" within the meaning of an act of Congress referring to claims "rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same." (U. S. v. Harmon, 147 U. S., 273.) Persons employed in a bureau or divi- sion of a department are as much employees in a department as the messengers and others rendering service imder the immediate super- vision of the Secretary. (Manning's case, 13 Wall., 578.) The term "executive and judicial de- partments," as used in section 87 of the public printing act, January 12, 1895 (28 Stat., 622), was intended to include all branches of the executive department of the Government and is not limited in its application to that branch of the service to the principal executive departments, enumerated in section 158, Revised Statutes. Accordingly, held that it includes printing and binding for the Interstate Commerce Commission at Washington. (4 Comp. Dec, 273.) The words "branch" and "department" of the Government are not used synonymously (in sec. 365, R. S.). The latter refers to the exec- utive departments recognized by the Constitu- tion and regularly established by law, and the former to those parts of the Government which are created by statute as independent of any de|)artnient, such as the Government Printing Office, the Smithsonian Institution, and other organizations. (Perry v. U. S. 28 Ct. Cls., 493.) 192 Executive Departments. Pt. 2. REVISED STATUTES. Sec. 161. under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time." (Const., Art. I, sec. 6, clause 2.)] The salary of the Secretary of Labor was fixed at $12,000 per annum by act of March 4, 1913 (37 Stat., 736), which established the De- partment of Labor. By section 6, legislative, etc., appropriation act, July 16, 1914 (38 Stat., 509), it was provided that "the rates of salary or compensation of officers or employees herein appropriated shall constitute the rate of salary or compensation of such officers or employees, respectively, imtil otherwise fixed by annual rate of appro- priation or other law." Sec. 160. [Salaries of Heads of Departments.] Each head of a Department is entitled to a salary of ten thousand dollars a year, to be paid monthly. — (3 Mar., 1873, c. 226, s. 1, v. 17, p. 486; 20 Jan., 1874, c. 11, v. 18, p. 4; 3 Mar., 1875, c. 130, V. 18, p. 396.) Amendments. — By act of January 20, 1874 (18 Stat., 4), the salaries of heads of departments were reduced to $8,000; by act of February 26, 1907 (34 Stat., 993), their salaries were increased to $12,000 each; by act of February 17, 1909 (35 Stat., 626), the salary of the Secretary of State was again fixed at $8,000, until it was increased to $12,000 by appropriation in the act of March 4, 1911 (36 Stat., 1186). [This exception to the general law fixing salaries of heads of depart- ments was made in the case of the Secretary of State, in order to render eligible for that office a former member of the Senate who would otherwise have been disqualified under the constitutional provision that "no Senator or Representative shall, during the time for which he was elected, be appointed to any civil office Sec. 161. [Departmental Regulations, Property and Records.] The head of each Department is authorized to prescribe regulations, not inconsistent with law, for the government of his Department, the conduct of its officers and clerks, the distribution and performance of its busmess, and the custody, use, and preservation of the records, papers, and property appertaining to it. — (27 July, 1789,0. 4, V. 1, p. 28; 15 Sept., 1789, c. 14, v. 1, p. 68; 7 Aug., 1849, c. 7, v. 1, p. 49; 2 Sept., 1789, c. 12, v. 1, p. 65; 8 June, 1872, c. 335, v. 17, p. 283; 30 Apr., 1798, c. 35, v. 1, p. 553; 22 June, 1870, c. 150, s. 8, v. 16, p. 163; 3 Mar., 1849, c. 108, V. 9, p. 395; 15 Aug., 1876, c. 287, s. 3, v. 18, p. 169.) The "distribution and performance" of the business of the Department of the Navy, and the custody of its records and property are provided for by sections 418-420, Re- vised Statutes. Regulations for the purchase, preservation, and disposition of supplies, etc., for the Navy are to be made by the President, under sec- tion 1549, Revised Statutes. Jurisdiction over property accounts in the Navy is conferred upon the Paymaster General of the Navy by act of March 29, 1894 (28 Stat., 47). Offenses against public property by persons m the naval service are made punishable by section 1624, Revised Statutes, articles 4, 8, and 14. Inventories of property in departments are required by section 197, Revised Statutes. Distribution of Business. Custody of Property and Records. Navy Regulations. Constitutionality and Necessity of Laws Authorizing Regulations. Regulations Defined. Weight of Regulations. Limitations upon Power to Make Regulations. Rules for Testing Validity of Regu- lations. IX. Waiver of Regulations. I. II. III. IV. V. VI. VII. VIII. I. Distribution of Business. Delegation of duties by head of depart- ment. — As Congress well knew that it would be impossible for the head of an executive department to give a hearing in person to all matters coming before that department, it has authorized the head of each department to pre- scribe rules and regulations for the conduct of the officers and clerks and the distribution and performance of its business. In pursuance of this authority the head of a department may intrust the determination of matters to his as- sistant, subject of course to his approval. The actions of the assistant on matters of this kind are merely those of a master or referee of a court to hear proofs and report his findings of fact and probably conclusions of law. It is the judge of the court, or in cases of this kind the head oi the department, who finally acts on the matter, either adopting the recommendations of the ref- eree or assistant or rejecting them. It is the head of the department who promulgates the conclusion as his own, independent of what the recommendations of his assistant might have been. The courts will conclusively presume that the head of the department acted on the testimony submitted to him as fully as if he had been present at the hearing and had not sub- mitted it to one of his assistants. (Lewis Pub- lishing Co. V. Wyman, 152 Fed. Rep., 787). [In this case the statute required that a hearing be had, and the court held that the head of the de- 193 Sec. 161. Pt.2. REVISED STATUTES. Executive Departments. partment properly aasigned the duty of con- diictinc;thehearinp to one of hia assistants.] To same effect, Shillito Co. v. Mct'lung, 51 Fed. Rep., 8(i8; Parish v. U. S., 100 U. S., 500; Chad- wick v. U.S., 3 Fed. Rep.,75C; U.S.i;.Adama,24 Fed. Rep., 348; Smith v. Hitchcock, 226 U. S., 53; 1 Comp. Dec, 370; 3 Corap. Dec, 730; 4 Comp. Dec, 462. See also note to section 177, Revised Statutes. Transfer of duties. — This section does not authorize the Secretary of Commerce and Labor to transfer to the disbursing clerk of that de- partment the duties formerly performed by the dL«bursing clerk of the Bureau of the Censvis, in the same department. The position of dis- bursing clerk in the Census Office was estab- lished oy Congress and has since been regularly appropriated for. Such position must there- fore be regarded as essential to the Census or- ganization until Congress other\\ise pro-\ides, and it would be ' ' inconsistent with law " within the meaning of this section to make the pro- posed change. (29 Op. Atty. Gen., 247.) Authority and signature of assistant. — So long as the powers delegated to the assistant secretary by his superior remain unrevoked, the authority of the former is coordinate and concurrent with that of the latter. "\Mien the assistant acts at a time the Secretary is not absent or sick, under a regulation made by the Secretary' prescribing his powers and duties, he should sign with his own proper official designation, ^\^len the Secretary is absent or eick, if the assistant is in charge of the depart- ment in pursuance of section 177 or 179, Re- vised Statutes, he should sign as Acting Secre- tary. (19 Op. Atty. Gen., 133.) II. Custody of Property and Records. Authority of Secretary. — From this sec- tion it appears that the head of a department has full charge and control of all the records and papers belonging to the department. His au- thority to prescribe whatever rules and regula- tions he may deem proper regarding their use and custody is unlimited so long as ' not incon- sistent with law." Such broad discretion would necessarily include the right to deter- mine whether certain documents should or should not be taken from the files of the de- partment for any purpose except for use in connection with departmental business and in accordance -with his determination so to instruct the chiefs of bureaus or other officers concerned . (25 Op. Atty. Gen., 326.) That the head of a department may legally prohibit an officer from producing in court or elsewhere official records was authoritati^'ely decided in Boske v. Comingore, 177 U. S., 459. (25 Op. Atty. Gen., 326.) The head of an executive department may properly decline to furnish official records of his department or copies thereof or to give testi- mony in a cause pending in court between private parties respecting facts which haAe come to his knowledge officially, whenever in his judgment the production of such papers or the gi\T.ngof such testimony might prove prej- udicial for any reason to the Government or to the public interests. (25 Op. Atty. Gen., 326.) The head of an executive department may legally prohibit the chief of a bureau from pro- ducing in court any official records of the de- partment or certified copies thereof in obedience to a subpoena duces tecum, and from making or certifying copies of such official records. (2.5 Op. Atty. Gen,, 326.) The records of executive departments are quasi-confidential in their nature and must De classed as pri\dleged communications whose production can not be compelled by a court without express authority of a law of the United States. (25 Op. Atty. Gen., 326.) See Navy Department General Order No. 121, Sep- tember 17, 1914. Transfer of public property. — The duties of a public officer as custodian of public prop- erty do not impliedly authorize him to transfer such property to some other branch or estab- lishment of the Government; on the contrary, such duties impliedly prohibit him from trans- ferring the possession of property committed to his care to some one else. Even though the transfer of property would be to the pecuniary advantage of the Government, and even though such transfer if made would meet with the approval of Congress, the custodian of the prop- erty has no legal authority to make such transfer. It is for Congress, under the constitutional grant with respect to the regulation and dispo- sition of the territory and other property of the United States, to say what shall be done with the property in question; mere custodians have no such authority. (29 Op. Atty. Gen., 524; compare 17 Op. Atty. Gen., 480.) See also note to section 355, Revised Statutes. Ownership of public property. — The ar- chives or other property of any department are not in the possession of the head of the depart- ment, chief of bureau, or clerk under either, but in the possession of the United States. Hence a party can not by writ of replevin against such head of department or other public officer take papers from the pubUc archives on the allegation of their being his private prop- erty. By the writ of reple\an a party claiming the rightful possession of a tiling takes it away from another party alleged to be wrongfully in possession of the thing. There must be a party possessory, as well as a party claiming adverse right of possession. A writ of reple\dn issued against a pubUc officer in such a case is a nulUty. It is the right and duty of the head of the department, and of all persons under his au- thority, to resist by force any attempt by writ of replevin or otherwise to abstract any docu- ment from the archives of the Government. (6 Op. Atty. Gen., 7.) For other cases, see note to section 418, Revised Statutes. III. Navy Regulations. "There are two general classes of reg- ulations issued by the Secretary of the Navy, namely, first, those which are expressly approved by the President in accordance with an order issued by Secretary Moody, June 22, 1904. These are known as Navy Regulations and are specifically stated to be issued by au- thority of section 1547, Revised Statutes; and 194 Executive Departments. PL 2. REVISED STATUTES. Sec. 161. Becond, those wliich. are not expressly approved by the President, such as Naval Instructions, Forms of Procediire for Courts and Boards in the Navy and Marine Corps, [now entitled ' Naval Courts and Boards'], Uniform Regulations, Signal Books and Drill Books, General Orders, Court-Martial Orders, Manual for Recruiting Officers, Manual Governing the Transportation of Enlisted Men, Manual for the Medical De- partment, and Rules for Target Practice and Engineering Competitions. These publications have full force and effect as regulations for the guidance of all persons in the Naval Establish- ment (Art. 901 (3), Navy Regs., 1913), and have been regarded as authorized by section 161, Revised Statutes (File 3980-942, Apr. 10, 1914), which has never been held to require the Presi- dent's approval." (File 3980-1044, Mar. 19, 1915.) Even under section 1547, Revised Statutes, express approval of the President is not re- quired by law, although as a general policy it is obtained in practice. (File 3980-1044, Mar. 19, 1915, citing Adams v. U. S., 42 Ct. Cls., 191; see also 16 Comp. Dec, 354, 358; compare Phil- lips V. Grain Corporation, 279 Fed. Rep. 244, 248.) Regulations of the United States Naval Academy are presiunably issued by the Sec- retary of the Navy pursuant to section 1547, Revised Statutes. (Weller v. U. S., 41 Ct. Cls., 324, 343; but see contra file 313-51, Mar. 19, 1907.) [These regulations, however, are not issued with the express approval of the Presi- dent as is the practice under that section.] Regulations governing deck courts in the Navy are to be prescribed by the President. (Act of February 16, 1909, section 5, 35 Stat., 621). IV. Constitutionality and Necessity of Laws Authorizing Regulations. Not a delegation of legislative power. — The Supreme Court has held that under the Constitution the power of legislation possessed by Congress can not be delegated (Field v. Clark, 143 U. S., 649; see also Cooperville, etc., Co. -y. Lemon, 163 Fed. Rep., 147); butthe power conferred by these laws is in no sense a dele- gated power of legislation. (Butler v. WTiite, 83 Fed. Rep., 578, reversed, on other grounds, 171 U. S., 379; 25_Op. Atty. Gen., 249.) Con- gress "may commit something to the discretion of the other departments, and the precise bound- ary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily." (Wayman v. Southard, per Chief Justice Marshall, 10 WTieat., 1.) \\Tiile of course Congress can not constitu- tionally delegate to the President (or head of a department) legislative powers, "it may, in conferring powers constitutionally exer- cisable by him, prescribe or omit prescribing, special rules of their administration, or may specially authorize him to make the rules. When Congress neither prescribes them, nor expressly authorizes him to make them, he has the authority, inherent in the powers conferred, of making regulations necessarily incidental to their exercise." (McCall's Case, 15 Fed. Cas., 1230.) The power to make laws can not be dele- gated to an executive department; but prescrib- ing conditions to enforcement of law is not legis- lation. (Dunlap V. U. S., 33 Ct. Cls., 135; 173 U. S., 65.) Section 161, Revised Statutes, con- fers administrative power only, and, under the guise of regulation, legislation can not be exer- cised. (U. S. V. United Verde Copper Co., 196 U. S., 207; U. S. v. George, 228 U. S., 14.) That Congress may enact a law and delegate the power to make all needful rules and regulations not inconsistent therewith is clear. This is not a grant of legislative power; it is only an au- thority to determine a fact upon which the operation of the law is made to depend. (Cooperville, etc., Co. r. Lemon, 163 Fed. Rep., 147 . ) The operation of the law may be post- poned until the regulations are issued. (Dun- lap v. U. S., 173 U. S.,65.) Congress can not legislate in detail. — To attempt to regulate by statute the minute movements of every part of the complicated machinery of government would evince a most unpardonable ignorance on the subject. Whilst the great outlines of its movements may be marked out, and limitations imposed on the ex- ercise of its powers, there are numberless things which must be done that can neither be antici- pated nor defined, and which are essential to the proper action of the government. (U. S. v. Macdanicl, 7 Pet., 14; U. S. v. Webster, 28 Fed. Cas., 515; Lewis Publishing Co. v. Wyman, 182 Fed. Rep., 13, 16; Haas v. Henkel, 216 U. S.,462, 480; 6 Op. Atty. Gen., 358.) Congress can only legislate in a general way, and large powers are necessarily intrusted to the different depart- ments. They really exercise in this way by delegation, and necessarily so, for the purpose of carrying on the vast affairs of the Government and its details, authority which in a strict sense pertains to Congress. (21 Op. Atty. Gen., 438, 439.) The authority thus exercised by heads of departments is "quasi legislative." (16 Op. Atty. Gen., 495.) Constitution vests discretion in Con- gress. — The Constitution gives Congress power to make all laws necessary and proper for carry- ing into execution the powers vested by that instrument in the Government of the United States or in any department or officer thereof. That power was exercised by Congress when it authorized the head of a department to provide by regulations not inconsistent with law for the government of his department, the conduct of its officers and clerks, the distribution and per- formance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it. A particular regu- lation may not have been absolutely or indis- pensably necessary to accomplish the objects indicated by the statute; but that is not the test to be appUed when we are determining whether an act of Congress transcends the pow- ers conferred ui^on it by the Constitution. Con- gress has a large tUscretion as to the means to be employed in the execution of a power conferred upon it. (Boske v. Comingore, 177 U. S., 459.) V. "Regulations" Defined. Must be general. — A regulation is a general rule which affects a class of persons, and not merely an order or instruction issued in a par- 195 Sec. 161. PL 2. REVISED STATUTES. Executive Departments. ticular case. (Harvey v. U. S., 3 Ct. Cls. , 38, 42; Lanclram v. U. S., IG Ct. Cls., 74.) The term ' ' regulation ' ' implies a rule for a general course of actioHj and does not apply to a case in which specific instructions are i.s.sued applicable to that case alone. (Christopher v. City of New York, 13 Barb., 5G7, 573.) The term "regula- tion" implies uniformity in operation; it must be general in .scope and not discriminate in its application. The function of an order relates more particularly to the execution or enforce- ment of a rule pre\nously made. (Morris v. Board of Pilot Commissioners, 7 Del. Ch., 136; 30 Atl., 6G7, 6G9; Indianapolis Union By. Co. v. Dohn, 153 Ind., 10, 45 L. R. A., 427.) Regula- tions must be iniiform and applicable to all officers under the same circumstances. (U. S. V. Ripley, 7 Pet., 18.) [Congress has recognized the distinction between regulations and occa- sional orders, as, for example, in the act of July 31, 1894, section 12 (28 Stat., 209), which provided that "The Secretary of the Treasury shall prescribe suitable rules and regulations, and may make orders in particular cases, re- laxing the requirement of mailing or otherwise sending accounts as aforesaid," etc.] The decision of the head of a department is not in any sense a regulation under section 161, Revised Statutes. Such decision is entitled to and receives great respect and consideration by the court, but it is not binding upon us as a valid regulation of the Department, and can not be so regarded. (Smith v. U. S., 170 U. S., 372, 380.) The power to make regulations does not contem- plate pro re nata interventions by the Secretary of the Navy. (15 Op. Atty. Gen., 634.) A regulation is an order in cases in which it applies, as much so as a special command reiterated on each particular occasion. (30 Op. Atty. Gen., 376, 171 S. and A. Memo., 3611; file 26254-1451:11, Apr. 12, 1915.) Not limited to a particular book. — The expression "United States Naval Regulations." as used in the act of March 2, 1895 (28 Stat. , 962) , has been held by the Comptroller of the Treasury to include Uniform Regulations and a state- ment of the Chief of the Bureau of Navigation giving the number and character of articles of clothing required as the necessary outfit of offi- cers and seamen; although the Comptroller stated that a strict construction of the expres- sion might limit it to the volume known as "Navy Regulations." (2 Comp. Dec., 150.) All orders not included. — Publications or orders of the Secretary of the Navy or of bureau chiefs or of any officer may be binding upon officers of the Navy, but they are not properly described as "lawful regulations issued by the Secretary of the Navy," the violation of which is punishable under the Articles for the Gov- ernment of the Navy (sec. 1624, R. S.). Such regulations are those described in sections 1547 and 1548, Revised Statutes, and consist of orders, regulations, and instructions issued by the Secretary prior to July 14, 18G2, with such alterations as he may have since adopted with the approval of the President. (25 Op. Atty. Gen., 270). But see above, "III. Navy Regu- lations." Usages included. — A regulation within the meaning of this section need not be promul- gated in any set form, nor in WTiting, but may con.sist of established usages and practices which have become a kind of common law of the Department. (Haas v. Henkel, 216 U.S., 462 ; 167 Fed. Rep., 211.) A usage becomes estab- ILshed in no other way than by the practice of the department; and the same authority which establishes a usage may change it, for a cus- tomary law is abrogated by the establishment of a contrary custom; but whUe it remains un- changed, it is binding. (U. S. v. Web.ster, 28 Fed. Cas., 509.) No change in such usage can have a retroactive effect but must be limited to the future. (U. S. v. Macdaniel, 7 Pet., 1, 15.) In the Webster case (above), with reference to the Army, the court said: "Such customs and usages in the military service may be proved by the same kind of evidence as is competent to prove a custom in other cases, but the best e\adence will be the regulations of the Army, printed and promulgated by the War Depart- ment; for these regulations, if I have a correct view on the subject, are nothing more than an authoritative digest of these customs. These usages and customs, the gradual product of time and circumstances, constitute a sort of comple- ment to the statute law upon the subject; and they may affect the rights and obligations of those who are subject to them in various ways; they may regulate and define their priA-ileges and immunities, the nature of the services which may be required of them, and the kind or amount of compensation to which they may be entitled for the performance of ser^dce3 superadded to the ordinary duties attached to their office. But all tliis must be consistent with the will of the legislature, expressed in the public laws and not in opposition to it." And a practice of disregarding the terms of an ex- press provision of regulations, although with the acquiescence of the head of the dejmrtment who issued them, will not accomplish a repeal of the regulation, which nevertheless continues in effect. (Arthur v. U. S., 16 Ct. Cls., 433.) There can be no such thing as a legal custom to disregard a valid regulation. (G. C. M. O. 43, 1906, p. 3.) Customs and usages of the ser\dce, whether originating in tradition or in specific orders or rulings, are now, as such, not numerous in the Army (or Navy), a large proportion, in obedience to a natural law, having changed their form by becoming merged in written regu- lations. (1 Winth., 42; file 26836-7: 35, Feb. 13, 1913, p. 4.) Classes of Regulations. — Regulations of the Army [and Na\y] consist of four classes: (1) General orders promulgated by the Presi- dent under his constitutional prerogative as Commander in Chief; (2) departmental regu- lations prescribed by tne Secretary under sec- tion 161, Revised Statutes; (3) regulations not approved by Congress but made by the Presi- dent in the exercise of legislative authority conferred by Congress [see sec. 1547, R. S.]; and (4) regulations expressly approved by Con- gress. (In re Smith, 23 Ct. Cls., 452.) Orders, regulations, and instructions issued by the Secretary of the Na-vy under section 1547, Revised Statutes, are presumed to be issued with the approval of the President, though they do not bear his signature. (Adams v. United States, 42 Ct. Cls., 191,211; file 3980-1044, Mar. 19, 1915.) 196 Executive Departments. Pt.2. REVISED STATUTES. Sec. 161 VI. Weight of Regulations. Have force of law. — Regulations issued by the head of a department have the force and effect of law and are as binding as if incorpor- ated in the statute law of the United States. (Stegallr.Thurman, 175 Fed. Rep., 813; U. S. v. Barrows, 24 Fed. Cas. No. 14529; Haas i;. Henkel, 216 U. S., 462; Ex parte Reed, 100 U. S., 13; U. S. V. Eliason, 16 Pet., 291; Gratiot v.V. S., 4 How., 80; U. S. v. Runkle, 122 U. S., 543; U. S. V. Freeman, 3 How., 556; Kurtz -i). Moffit, 115 U. S.. 487, 503; U. S. v. Hutton, 26 Fed. Cas. No. 15433; In re Huttman, 70 Fed. Rep., 699; In re Weeks, 82 Fed. Rep., 729; Flynn?;. Fuell- hart, 106 Fed. Rep., 911; In re Lamberton, 124 Fed. Rep., 446; Alvord v. U. S., 95 U. S., 356; Peters V. U.S. ,33 Pac, 1031, 2 Okla., 116; Stans- bury V. U. S., 37 Pac, 1083, 2 Okla., 151; Demp- eey v. U. S., 44 Pac, 382, 2 Okla., 151; Katzer V. U. S., 49 Ct. Cls., 294, decided Feb. 9, 1914, No. 31888; Adams ii.U. S., 42 Ct. Cls., 191; Smith V. Whitney, 116, U. S. 180; Pundti;. Pendleton, 167 Fed. Rep., 997.) Anny regulations concerning the procedure of courts-martial have the force of law. (23 Op. Atty. Gen., 27.) The Navy Regulations have the force and effect of positive law. (27 Op. Atty. Gen., 257.) It is well settled that regulations when di- rectly approved by Congress have the absolute force of law, equally with other legislative acts, until repealed by the same power. Congress has treated regulations so approved by it as having the same force as congressional enact- ments. (In re Smith, 23 Ct. Cls., 459.) Wlien Congress expressly adopted and ratified certain general orders issued by the Secretary of the Navy, specifically describing them, and pro- vided that they "shall have the force of law," and further provided that a certain general order, which was quoted in the act, "be and the same is hereby confirmed," it was held by the Attorney General that these orders "were placed upon the footing of legislative acts, and were incorporated into the statute law on the subject of the Navy," and accordingly that alterations therein could be made only by Con- gress. (13 Op. Atty. Gen., 10; see also Maddux V. U. S., 20 Ct. Cls., 193.) [This opinion of the Attorney-General would apparently be appli- cable to any regulation or order which had been specifically adopted by Congress, either expressly or by necessary implication, as for example, executive orders fixing the pay of enlisted men in the Na^'y, which were adopted by Congress in the naval appropriation act which made an increase of 10 per cent in the existing pay of enlisted men and provided that such pay should continue in effect until changed by Congress. (Act May 13, 1908, 35 Stat., 128.) File 26509-106; see Comp. Dec, May 19, 1915, file 26254-1784.] Must be consistent with law. — Regula- tions not approved by Congress have the force of law only when founded on the President's constitutional powers as Commander in Chief of the Army and Navy, or when consistent with and supplementary to the statutes which have been enacted by Congress. (In re Smith, 23 Ct. Cls., 452.) Regulations to have the force of law must be consistent with the statutes, and the Supreme Court of the United States has never held otherwise. (U. S. v. Symonds, 120 U. S. 46; U. S. V. Ross, 239 U. S., 530; Scheide v. U. S. 52 Ct. Cls., 247.) The regulations of the Army and Navy have the force of law with respect to a person or subject matter of which the Secre- tary has control, but to have the force of law they must conform to the law. (Adams •?;. U. S . , 42 Ct. Cls., 191). It will not be pretended that department regulations can control or annul an act of Congress, and when it is said they have the force of law nothing more is meant than that they have that virtue when they are con- sistent with the laws established by the legis- lature. (U. S. V. Webster, 28 Fed. Cas., 515, 516.) Must be limited as to persons and sub- ject matter. — While in general terms it is often said that the Army and Navy Regula- tions have the force and effect of law, this can only be proijeiiy so where we are dealing with a person or subject matter over which the Secre- tary has official control. (16 Op. Atty. Gen., 494.) But where the Secretary of the Navyhas control of the subject matter, a lawful regula- tion issued by him is binding on the account- ing officers of the Treasury, and will protect disbursing officers from responsibility for com- pliance therewith, (30 Op. Atty. Gen., 376, l71 S. and A. Memo., 3611. See also file 26254-1451:11, Apr. 12, 1915.) Army regula- tions, issued pursuant to the explicit pro- visions of a statute and in execution thereof, when sanctioned by the President, have the force of law, and are conclusive upon the ac- counting officers of the Treasury; accord- ingly, when an officer presents with his account an authentic document or certificate of his hav- ing commanded a post or arsenal for which an order has been issued from the War Department in conformity with the provisions of the Army Regulations allowing double rations, his right to them is estabhshed, nor can they be withheld without doing him a wrong for which the law giveshim a remedy. (U. S. v. Freeman, 3 How., 567.) Are not the law itself. — Regulations pro- mulgated under section 161, Revised Statutes, have the force of law, but they are not the law itself. (Laureyv. U.S.,32Ct.Cls.,265.) Regu- lations prescribed by the President and heads of departments under authority granted by Con- gress may be regulations prescribed by law so as to lawfully support acts done under them and in accordance with them, and may thus have, in a proper sense, the force of law; but it does not follow that a thing required by them is a thing so required by law as to make the neglect to do the thing a criminal offense in a citizen where a statute does not distinctly make the neglect in question a criminal offense. Ac- cordingly, held that a provision in an act of Congress authorizing the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to make all needful regulations for the can-ying into effect of the act authorized a regulation requiring dealers to keep certain books; but violation of said regulation was not omitting or failing to do a thing "required by law for the carrying on or conducting of his business " mthin the meaning of another section of the same act affixing a 197 Sec. 161. PL 2. REVISED STATUTES. Executive Departments. l)i'nalty. [In tliis case the language of the law wivs held not to intend to allix a i)('naUy for the failure to keep the books in question.] U. S. v. Eaton, 144 U. !S., 677; explained and distin- guished in Caha v. U. S., 152 U. S., 211, and In re Kollock, 1(;5 U. S., 520; see also U. S. v. Butter, li>5 Fed. Rep., 657; U. S. v. Maid, 116 Fed. Rep., 650; compare Coopersville Cooperative Cream- ery Co. V. Lemon, 163 Fed. Rep., 145; 21 Op. Atty. Gen., 440. (See below, "VII. Limita- tions Upon Powekto Make Regulations.") Regulations made by the head of a depart- ment piu-suant to statutory authority and in administration thereof, not being demanded by law, are not law in the sense in which that term \3 used in section 356, Revised Statutes. (25 Op. Atty. Gen., 183.) A departmental regulation relating to internal administration and practice, when not specially authorized or demanded by law, is not law in the sense in which that term is used in section 356, Revised Statutes. (18 Op. Atty. Gen., 521.) Violation of a regulation may be made criminal offense by statute. — Congress may enact that the violation of certain rules and regulations of the Secretary, not inconsistent with law, which it authorized him to make, should subject property to forfeiture or persons to fine and imprisonment; but such penalties can not be inflicted for violation of a regulation of an executive department without previous legislative sanction. (U. S. v. Butter, 195 Fed. Rep., 657; see also McKirleyt). U. S., 249 U.S., 397; Buttfield v. Stranahan, 192 U. S., 470; Union Bridge Co. v. U. S., 204 U. S., 364; U. S. V. Grimaud, 220 U. S., 506; U. S. v. Breen, 40 Fed. Rep., 403; U. S. v. Ormsbee, 74 Fed. Rep., 208.) Congress has provided that violation of any lawful general order or regulation issued by the Secretary of the Navy shall be punishable by court-martial when the offender is a person in the naval service. (Sec. 1624, R. S., art. 8, clause 20; see also U. S. v. Moody, 164 Fed. Rep., 269.) Where a statute made it a crime to bribe an officer of the United States to violate his "lawful duty," the Supreme Court held that bribery of an officer to violate a department regulation was punishable under the statute. (Haas v. Henkel, 216 U. S., 462.) Where the law made it the duty of the Secretary of the Treasury to adjust certain claims, but did not prescribe the manner in which he should obtain the necessary evidence prior to making payments, it was held by the Supreme Court, per Mr. Justice Story, that it devolved upon the Secre- tary by regulations to prescribe what evidence should be furnished in support of claims; that a regulation made by the Secretary requiring the submission of affidavits and authorizing such affidavits to be made before an officer who was not expressly authorized by any law of the United States to administer an oath in support of claims was a valid regulation; and that any person making a false aiiidavit in accordance with such a regulation was guilty of false swearing and punishable as for willful and cor- rupt perjury under an act of Congress then in effect. (U. S. V. Bailey, 9 Pet., 2.38; see also 14 Op. Atty. Gen., 420; and see 29 Op. Atty. Gen., 14, and file 26543-87 :2 Apr. 28, 1913, as to affidavits required in Navy cases.) Not punishable if regulation invalid. — In a case in which the Secretary of the Interior by regulation required an affidavit to be sub- mitted by a homestead claimant, it was held by the Supreme Court that submitting a false affidavit under such regulation was not perjury within the statute which dealt with "any case in which a law of the United States authorizes an oath to be administered." In its opinion, the court remarked: "Where the charge is of crime, it must have clear legislative basis," citing WilUamson v. U. S., 207 U. S., 425; U. S. v. Keitel, 211 U. S., 370; U. S. v. Eaton, 144 U. S., 677; MorrUl v. Jones, 106 U. S., 466; U. S. v. Biggs, 211 U.S. ,507;andDwyeri;. U.S. ,170 Fed. Rep., 160. However, in this case it appeared that the law itself provided what evidence and affidavits should be required of homestead claimants, and that the regulation of the Inte- rior Department added to the statutory require- ment; and tlie court held that this was not an exercise of administrative power, as contem- plated by Congress in authorizing regulations to be made, but was an attempted exercise of legislative powers, as the authority to make regulations did not authorize the Secretary either to abridge or enlarge the statute. (U.S. V. George, 228 U. S., 14.) Regulation may operate as contract. — A regidation which has not the force of law, may nevertheless, if not inconsistent wnth law, operate as a contract between the Government and those who work under it, and thereby acquire full force and effect, (Adams t^. U.S., 42 Ct. Cls., 191; 13 Comp. Dec, 819; 5 Comp. Dec, 666.) The Secretary of the Navy is authorized by this section to issue regulations prescribing the duties of pay officers, and requiring theni to make payments upon certain contingencies. Such regulations must be read as applying only to items fair on their face. In such case an officer refusing to pay would both breach his bond and render himself liable to court-martial, while an officer obeying the regulation can not be held responsible, eitner financially or crimi- nally. The regulation in such case has bind- ing force of law on the accounting officers of the Government. (30 Op. Atty. Gen., 376, 171 S. and A. Memo., 3611, reversing 21 Comp. Dec, 554, 357, 245.) VII. Limitations Upon Power to Make Regulations. Must be consistent with law. — Section 161, Revised Statutes, specifically provides that regulations made thereunder shall be "not inconsistent with law.'.' Must not usurp power of Congress. — Where a regulation issued by the head of a de- partment amounts to an attempted exercise of the power of legislation, it is invalid (U. S. v. United Verde Copper Co., 196 U. S., 207; U. S. V. George, 228 U. S., 14; 25 Op. Atty. Gen., 249). The head of a department can not by his regu- lations alter or amend a statute; all that he can do is to regulate the mode of proceeding to carry into effect what Congress has enacted. (Morrill v. Jones, 106 U. S., 466; see also U. S. V. Symonds, 120 U. S., 46, 49; U. S. v. Bishop, 120 U. S.,51; Campbell v. U. S., 107 U. S.,407; 198 Executive Departments. PL 2. REVISED STATUTES. Sec. 161. U. S. V. Garlinger, 169 U. S., 316; Merritt v. Welsh, 104 U. S., 694.) Rights, duties, and ob- ligations defined by statute can not be taken away or abridged bv regulations. (Laurey v. U. S., 32 Ct. Cls., 259") Must not be retroactive. — A regulation manifestly can not have a retroactive effect so as to invalidate a claim for services performed before it was in existence. (U. S. v. Da\ds, 132 U. S., 334; Taylor v.V. S., 33 Ct. Cls., 393; see also 17. S. v. Macdaniel, 7 Pet. 1, 15; Camp- bell V. U. S., 107 U. S., 407; U. S. v. Ala. R. Co., 142 U. S.,621.) Can not prescribe a criminal offense. — A departmental regulation can not prescribe a criminal offense. (U. S. v. Eaton, 144 U. S., 677; U. S. -y. George, 228 U. S., 14; U. S. v. Butter, 195 Fed. Rep., 657. But see U. S. v. Bailey, 9 Pet., 238; Haas v. Henkel, 216 U. S.,462.) See above, "VI Weight of Regulations." Limitation as to persons. — The law does not authorize the head of a department to dic- tate to a civil employee where he shall live (9 Op. Atty. Gen., 23); nor can he make regula- tions for the conduct of persons not connected with his department (17 Op. Attv. Gen., 524; 16 Op. Atty. Gen., 494; 16 Comp. Dec, 529; 18 Comp. Dec, 992; but see U. S. v. Freeman, 3 How., 567; Op. Atty. Gen., May 19, 1915, 171 S. and A. Memo., 3611; however, persons deal- ing with agents of the government are bound to take notice of the extent of the authority con- ferred by law and regulation upon such agents (Whiteside et al v. tl. S., 93 U. S., 247; Noble V. U. S., 11 Ct. Cls., 608; Lind v. U. S., 49 Ct. Cls., 648). Can not change terms of statute. — A regulation can not enlarge the terms of a statute by requiring a public officer to furnish a bond with a condition different from that which the statute called for (U. S. v. Tingey, 5 Pet., 115; Moses V. U. S., 166 U. S., 571); nor by requiring a homestead claimant to furnish affidavits ad- ditional to those required by statute (U. S. v. Eaton,_ 144 U. S., 677); but where a statute authorized publishers to send sample copies through the mails at a reduced rate of postage, without limiting the number of sample copies so sent, a regulation issued by the Postmaster General prescribing the maximum number of sample copies to be so transported at reduced rate was valid. (Lewis Publishing Co. v. Wyman, 182 Fed. Rep., 13.) A regulation can not enlarge or restrict the liability of an officer on his bond (Meads v. U. S., 81 Fed. Rep., 684; Smith v. U. S., 170 U. S., 372). A regu- lation may supplement a statute, but can not supersede it. (Roberts v. U. S., 44 Ct. Cls., 411; 15 Comp. Dec, 658.) The authority to make rules and regulations is to make such administrative regulations as are necessary to carry out the existing law. The right is not given to amend or enlarge the law. (28 Op. Attv. Gen., 389; see also notes to sees. 436 and 1409, R. S.) Private debts. — In the absence of statute, no public officer can make the United States an agent or trustee for the collection of private debts between citizens. (Taggart's case, 17 Ct. Cls., 322, compare file 26254-1709.) VIII. Rules for Testing Validity op Regu- lations. Validity sustained if possible. — In deter- mining whether a regulation promulgated by the head of a department is consistent with law, we must apply the rule of decision which con- trols when an act of Congress is assailed as not being within the powers conferred upon it by the Constitution; that is to say, a regulation adopted under section 161 of the Revised Stat- utes should not be disregarded or annulled unless, in the judgment of the court, it is plainly and palpably inconsistent with law. Those who insist that such a regulation is invalid must make its invalidity so manifest that the court has no choice except to hold that the Secretary has exceeded his authority and employed means that are not at aU appropriate to the end specified in the act of Congress. (Boske V. Comingore, 177 U. S., 459; 29 Op. Atty. Gen., 478.) A regulation must be interpreted, if possible, to harmonize with the law. (Rob- erts V. U. S., 44 Ct. Cls., 411.) Valid unless clearly contrary to stat- ute. — In determining whether a regulation issued by the Secretary of the Navy is valid, the only proper inquiry is whether and how far a rule has been laid down by the statute which restrains the disposition of the subject by executive order or department regulation and usage. Unless the laws on the subject posi- tively require a different action, or altogether prohibit that taken, the questions are subject to administrative settlement by the Secretary of the Navy. In other words, the law pre- scribes certain rules on the subject; beyond these rules, executive order, regulation or usage have full scope and play. (25 Op. Atty. Gen., 122.) Valid when approved by Congress. — A regulation directly approved by Congress has the absolute force of law. (In re Smith, 23 Ct. Cls., 459; file 26254-1451:11, Apr. 12, 1915, citing Ex parte Reed, 100 U. S. 22; Smith v. Whitney, 116 U. S., 180, 181; see also Op. Atty. Gen., May 19, 1915, 171 S. and A. Memo., 3611.) Ratification of Congress implied. — ^\Tien Congress allows a regulation to be formulated and published and carried into effect year after year, the legislative ratification must be im- plied, and it does not comport with national honor to allow such a regulation of an executive department to exist and individuals to acquire rights upon the faith thereof, and then to with- hold payment and question the legality of the regulation. (Maddux v. U. S., 20 Ct. Cls., 193.) Congress has not hesitated to annul Navy regu- lations of which it did not approve, as, for exam- ple, Executive order of November 12, 1908 (file 27109), limiting the duty of the Marine Corps to shore stations. (Act Mar. 3, 1909, 35 Stat.,_ 773; 27 Op. Atty. Gen., 259.) Hence, inaction by Congress is equivalent to legis- lative sanction of regulations, and should be so regarded in testing the validity of a regu- lation or construing a statute on the same subject. (Maddux v. U. S., above; Benja- min V. U. S., 10 Ct. Cls., 482; file 5262-36 May 5, 1910; 15 Op. Atty. Gen., 646,647; 199 Sec. 161. Pt. 2. REVISED STATUTES. Executive Departments. see also 22 Op. Atty. Gen., 626; 19 Op. Atty. Gen., 591; file 7657-167, Jan. 17, 1913; 7657- 389, Sept. 25, 1916.) Otherwise, however, where there is a direct conflict between the regulation and a statute. (20 Comp. Dec, 741.) Where regulations have been in force for a number of years and have received the tacit if not express approval of Congress, the court does not leel at liberty to disregard them and hold that they are not authorized by law, even though it "may well be doubted" that they are authorized by law. (Garlinger v. U. S., 30 Ct. Cls. 477.) IX. Waiver of Regulations. Regulations not binding on head of de- partment. — The Supreme Coiut has held that an Army regulation which in terms applies only to persons in the military service does not bind the Secretary of War, as he "is not in the military service in the sense of the regulation, but on the contrary is a civil officer" (U. S. v. Burns, 12 Wall., 246); and the Court of Claims, citing this case, held that Army Regulations, "which are intended for the direction and gov- ernment of the officers and agents of the depart- ment, do not bind the Commander in Chief nor the head of the War Department" (Smith v. U. S., 24 Ct. Cls., 215). May be waived by power which, made them. — The above decision of the Court of Claims was cited by the Comptroller of the Treasury (9 Comp. Dec, 280) in holding that a provision of the Army Regulations which was adopted pursuant to and in execution of a stat- ute was one " of ordinary departmental regu- lations, made to administer the annual appro- priations by the heads of departments," and was binding upon the subordinates of the Secre- tary of War so long as he did not abrogate or waive it; but that "you [Secretary of War] are at hberty in my judgment to change, modify, or waive it at your pleasure, always provided that you do not violate some law in your changed or modified regulation, or by such change, modification, or waiver you do not encroach upon or abrogate some contractual right fully vested before notice of such change, modifica- tion, or waiver. " (See also 2 Comp. Dec, 306; 3 Comp. Dec, 218; 4 Comp. Dec, 40, 266, 387; 6 Comp. Dec, 589.) In a decision of the Comptroller of the Treas- ury, July 22, 1899, it was said: "It has been held time out of mind in this oflice * * * by such able lawyers and officers as Whittlesey, Tayler, and Lawrence, not mentioning its later incum- bents, that the authority making a regulation could waive its enforcement, and that any aflirmative act by such power contrary to the provisions of such regulation would be treated as a waiver. " (6 Comp. Dec, GO.) WTiere the Secretary of the Navy suspended the operation of a regulation in a particular case, the Comptroller of the Treasury, January 8, 1900 (6 Comp. Dec, 589), held that the regu- lation " was waived by the power which made these regulations," and continued: "I know of no law or rule which forbids the head of a de- partment from suspending the operation of a regulation similar to this in individual in- stances. The effect of such suspension is to cause a want of uniformity in the operation of these regulations, but if this be a fault it is chargeable to the administration of the regula- tions and does not imply the want of power to so suspend the operation of a regulation in indi- vidual cases." " Where a rule or regulation is not the essence of a law, but is simply a vehicle for its proper administration, the authority making such rule or regulation may waive its performance or non- performance." (4 Comp. Dec, 387.) Regulations issued by the head of a depart- ment pursuant to statutory authority and in administration thereof can be made or annulled at will and enforced or waived as seems ex- pedient. (25 Op. Atty. Gen., 183.) A departmental regulation relating to internal administration and practice, when not specially authorized or demanded by law, is such as the officers of bureaus and departments can make or annul at will or enforce or waive as seems expedient. (18 Op. Atty. Gen., 521.) View that regulations can not be waived. — In a decision of the Comptroller of the Treasury, above-cited (9 Comp. Dec, 280), there was quoted an opinion of the Judge Ad- vocate General of the Army showing that his office had " uniformly and consistently held to the view that Army Regulations made in pur- suance of a statute, although subject to modifi- cation by the Secretary of War, are not subject to exceptions or waiver in individual cases by the same authority." The Comptroller did not concur in the Judge Advocate General's opinion in that case. However, in 21 Comp. Dec, 482, it was held that relations "made pursuant to or in execution of a statute, are quasi-legislative, and may be held to become a part of the law and to be of the same force as the statute itself, and though they may be changed by the authority making them they are binding on such authority as well as others so long as they are not changed and exceptions can not be granted to them. The power to make regulations involves the power to alter, amend, modify, or revoke the same, but said action must be general and not by specific ex- ception or waiver, and can only be prospective, not retrospective. The distinction should be made between essential regulations made in aid of a statute, such as are necessary to the execu- tion of the statute, and thus have the appear- ance of being of a decidedly legislative char- acter and regulations which are merely sup- plemental to them and relate to the minor details of the machinery for the execution of the statute. These latter are made in aid of the statute also, but are not of the character referred to and may more properly be termed administrative and directory. The line of de- marcation may not be easily defined but there is a clear distinction between the two classes of regulation." (See also Op. Atty. Gen. to Sec. of Navy, July 19, 1918; file 26254-2476:5.) Upon the question whether a provision in the Navy Regulations of 1909 could be waived in an individual case, the Judge Advocate General of the Navy, January 22, 1913 (file 54G0-60), re- marked that said regulation was substantially 200 Executive Departments. Pt.2. REVISED STATUTES. Sec. 162. identical with a provision contained in the Navy Regulations which received the express sanction of Congress in the enactment of section 1547, Revised Statutes (citing Atty. Gen.'s opinion of Oct. 27, 1909, file 3890-530); that ' ' there are authorities both ways upon the cjues- tion whether a regulation such as the foregoing may be waived in individual cases. The spe- cific question has never been decided by the Supreme Court of the United States"; and for these and other reasons, recommended that the regulation in ciuestion be not waived. A regulation which has been specifically ap- proved and adopted by Congress, and has thus been placed on the footing of legislative enact- ments, can be altered only oy Congress and can not be waived by the Secretary of the Navy or the President. (13 Op. Atty." Gen., 10; in re Smith, 23 Ct. Cls., 452; IMaddux v. U. S., 20 Ct. Cls., 193; file 26509-106.) The waiver of a regulation, the same as the revocation or amendment thereof, can not, how- ever, be given a retroactive effect so as to dis- turb vested rights. (U. S. v. Mardaniel, 7 Pet., 1, 15; Campbell v. U. S., 107 U. S., 407.) Necessity of President's authority to waive. — The ('omptroller of the Treasury has announced the principle that regulations pro- mulgated by the President may be waived by the head of a department; for the heads of the several departments "are the eyes and hands of the President, to execute the laws and his executive rules and regulations; their acts are in a sense his acts; when they waive a regu- lation, he waives it; for they act for and repre- sent the power and authority of the President." (6 Comp. Dec, 60.) In the case of Navy Regulations issued under section 1547, Revised Statutes, it has been held that if they may be waived in any case, express authority of the President for such waiver is necessary, for the principle is recognized in the decisions that regulations can be waived only by the authority which made them, and the President and the Secretary of the Navy both act in issuing regulations under section 1547, Revised Statutes. (File 5460-60.) [In6Gomp. Dec. 589, it was held that a regulation issued under section 1547, Revised Statutes, might be waived by the Secretary of the Navy, who was "the power which made these regulations." At the time said decision was rendered, this statement of the Comptroller was literally true, as the regulations in question were not expressly approved by the President. Section 1547 was afterwards construed by the Attorney General (25 Op. Atty. Gen., 270) to require the express appro\-al of the President, both for the issuing of regulations thereunder, and the making of changes and alterations therein, which opinion has ever since been followed in practice, although it was later held by the Court of Claims that regulations issued by the Secretary of the Navy under section 1547, Revised Stat- utes, are presumed to have been issued with the approval of the President, though they do not bear his signature (Adams v. U. S., 42 Ct. Cls., 211; file 3980-1044, Mar. 19, 1915.)] Evidence of waiver. — Usually an approval of an act by the head of a department, where a rule or regulation has not been complied with, is sufficient evidence of its waiver. (4 Comp. Dec, 387; 6 Comp. Dec, 60.) In Arthur i;. U. S., 16 Ct. Cls., 433, the Court of Claims held that the Army Regulations were obligatory \ipon the Surgeon General of the Army; and where that officer, with the acqui- escence of the Secretary of War and of the ac- counting officers, repeatedly disregarded such regulations in practice during a period of many years, this did not constitute a legal custom and operate to annul the regulations in question. In this case, however, the court stated that it was unnecessary to decide whether the Secre- tary of War's approval of contracts varying ^'om the regulations had the effect of suspend- ing their operation in the individual cases. Policy of Navy Department.— On May 5, 1909, the Secretary of the Navy (Meyer) an- nounced that "The department is averse to waiving the provisions of the regulations except in cases of great necessity". (File 17789-10.) Sec. 162. [Hours of business.] From the first day of October until ttie first day of April, in each year, all the Bureaus and offices in the State, War, Treasury, Navy, and Post-Office Departments, and in the General Land-Office, shall be open for the transaction of the public business at least eight hours in each day; and from the first day of April until the first day of October, in each year, at least ten hours in each day; except Sundays and days declared public holidays by law.— (4 July, 1836, c. 352, s. 12, y. 5, p. 112; 20 June, 1874, c. 328, V. 18, 'p. 109.) Closing the departments for deceased ex-officials is prohibited by act of March 3, 1893, section 4 (27 Stat., 715). Draping of biulding in mourning is prohibited by the same act, sections (27 Stat., 715). The public buildings are to be kept open dur- ing stated hom-s for the transaction of pub- lic business. (Palmer's case, 17 Ct. Cls., 230, 234; argument for United States.) "Days declared public holidays by law." — The following days in each year are holidays in the District of Colimibia "for all purposes," viz., the first day of January, com- monly called New Year's Day; the twenty- second day of February, known as Washing- ton's Birthday; the Fourth of July; the thir- tieth day of May, commonly called Decoration Day; the first Monday in September, known as Labor's Holiday; the twenty-fifth clay of De- cember, commonly called Christmas Day; every Saturday after twelve o'clock noon ; any day appointed or recommended by the Presi- dent of the United States as a day of public fasting or thanksgiving; and the day of the 201 Sec. 164. Ft. 2. REVISED STATUTES. Executive Departments. inauguration of the rresiclent, in every fourth year. (District of Cohimbia Code, act Mar. 3, IWl, sec. 1389, 31 Stat., 1404; amended by act June 30, 1902, 32 Stat., 543.) Every Saturday after 12 o'clock noon in the District of Oohimlna is one of the days declared })ublic holidays by law. Consequently, heads of departments are not obliged to require labor of employees after the hour of noon on Satur- days. (25 Op. Atty. Gen., 40j see also Adams V. U. S., 42 Ct. Cis.", 191.) The "hours of business" as fixed by this section were, by act of June 20, 1874 (18 Stat., 109), also made the maximum hours of labor which could be required of employees in the de])artmeuts. The act cited read as follows: "That it shall be the duty of heads of the several executi%-e departments, and of the heads of the respective bureaus therein, in the interests of the public service, to require of all clerks of class one and above, and of chiefs of divisions, such hours of labor as may be deemed necessary for the proper dispatch of the public business, not exceeding, however, the time for which said departments are by law required to be open for business, any usage to the con- trary notwithstanding." (See 25 Op. Atty. Gen., 40.) The "hours of labor" of employees in the de])artmeuts are now fixed at not less than seven, "except Sundays and days declared public holidays by law or Executive order," by act of March 3, 1893 (27 Stat., 715), as amended by act of March 15, 1898, section 7 (30 Stat., 316). See 22 Op. Atty. Gen., 472, 474, as to pay of employees "during the temporary sus- pension of actual work in the departments in obedience to an Executive order." See also 22Comp. Dec, 425. Hours of labor for Government laborers, workmen, and mechanics are fixed at eight by section 3738, Revised Statutes, and act of Au- gust 1, 1892 (^27 Stat., 340), and amendments thereto.. Heads of departments are required to extend hours of labor in certain cases, when public business is in arrears. (Act Mar. 3, 1893, 27 Stat., 715, as amended by act Mar. 15, 1898, 30 Stat., 317). By Naval Instructions (art. 82) the usual hours of labor for clerks in the Navy Depart- ment are fixed at from 9 a. m. to 4.30 p. m. Sec. 163. [Classification of Department clerks.] Tlie clerks in the Depart- ments shall be arranged in four classes, distinguished as the first, second, t'hird, and fourth classes.— (3 Mar., 1853, c. 77, s, 3, v. 10, p. 209; 3 Mar., 1855, c. 175, s. 4, V. 10, p. G69; 15 Aug., 1876, c. 287, s. 3, v. 19, p. 169.) For compensation allowed clerks of these four classes see section 167, Revised Statutes. Other provisions concerning the classi- fication of clerks are contained in section C, act January 16, 1883, "to regulate and improve the civil service of the United States"(22 Stat., 405). Pursuant to said act a classification of the civil service, based upon section 163, Revised Statutes, was adopted by each head of a de- partment and Government establishment by direction of the President on June 9, 1896. It arranges officers and employees, other than mere laborers and persons whose appointments are confirmed by the Senate, in classes accord- ing to annual salary or compensation, as follows: A. Less than §720. B. $720 or more and less than |840. C. $840 or more and less than $900. D. $900 or more and less than $1,000. E. $1,000 or more and le.-^s than $1,200. 1. $1 ,200 or more and loss than $1,400. 2. $] ,400 or more and less than $1,600. 3. $1,600 or more and less than $1,800. 4. $1,800 or more and less than $2,000. 5. $2,000 or more and less than $2,500. 6. $2,500 or more. The classification further provides that no person appointed as a laborer without examina- tion under the rules shall be assigned to work of the same grade as that perfonned by classified employees, and no person shall be admitted to any place not excepted from examination by the rules until he shall have passed an appropri- ate examination before the Civil Service Com- mission and his eligibility has been certified to the appointing officer hy the commission. (Report of United States Civil Service Commis- sion, 1912, p. 128; art,. 53, Naval Instructions.) The Railway Mail Service has a different classification, prescribed by section 1402, Re- vised Statutes, as amended by an act approved August 24, 1912 (37 Stat., 555), and a different classification of certain employees under the Post Office Department is prescribed by act of March 2, 1907 (34 Stat., 1206). Sec. 164. [Examinations for appointment. Repealed.] This section provided as follows: "Sec. 164. No clerk shall be appointed in any de- partment in either of the four classes above des- ignated until he has been examined and found qualified by a board of tliree examiners, to con- sist of the chief of the bureau or office into which such clerk is to be appointed and two other clerks to be selected by the head of the department." (3 Mar., 1853, c. 97, s. 3, v. 10, p. 209; 3 Mar., 1855, c. 175, s. 4, v. 10, p. 669.) It was repealed by act of Jsnuary 16, 1883 (22 Stat., 403), which act provides for examina- tions to be conducted by the Civil Service Commission. (18 Op. Atty. Gen., 245.) See also provision of section 1753, Revised Statutes, authorizing President to prescribe regulations for admission to the ci\'il service; and see sections 1754 and 1755 as to preference of persons disabled in the military or naval service. 202 Executive Departments. Pt. 2. REVISED STATUTES. Sec. 166. Sec. 165. [Clerkships open to women.] Women may, in the discretion of the head of any Department, be appointed to any of the clerkships therein author- ized by law, upon the same requisites and conditions, and \vith the same com- pensations, as are prescribed for men. — (12 July, 1870, c. 251, s. 2, v. 16, pp. 230, 250.) See sec. 167 R. S. Sec. 166. [Distribution of clerks, temporary detail.] Each head of a Depart- ment may, from time to time, alter the distribution among the various bureaus and offices of his Department, of the clerks and other employees allowed by law, except such clerks or employees as may be required by law to be exclu- sively engaged upon some specific work, as he may find it necessary and proper to do, but all details hereunder shall be made by written order of the head of the Department, and in no case be for a period of time exceeding one hundred and twenty days. Provided, That details so made may, on expiration, be renfewed from time to time by written order of the head of the Department, in each particular case, for periods of not exceeding one hundred and twenty days. All details heretofore made are hereby revoked, but may be renewed as provided herein. Thig section was amended to read as above by section 3 of the act of May 28, 1896 (29 Stat.*, 179). Originally it provided as follows: "Sec. 166. Each head of a department may from time to time alter the distribution among the various bureaus and offices of his department of the clerks allowed by law, as he may find it necessary and proper to do."— (3 Mar., 1853, c. 97, s. 3, v. 10, p. 211.) Heads of departments are required to make annual report to Congress of employees de- tailed to other offices. (Act Mar. 2, 1895, sec. 7, 28 Stat., 808.) By the legislative, executive, and judicial ap- propriation act of March 3, 1917 (39 Stat., 1098) and other years, it was provided that all employees appropriated for in the Office of Naval Records and Library "shall be exclusively engaged on the work of this office during the fiscal year" for which the appropriations were made. As to delegation of duties required by law to be performed by "head of the department" see note to sections 161 and 177, Revised Statutes, and 19 Op. Atty. Gen., 133. For references to laws concerning detail of em- ployees from executive departments to the Ci"\dl Service Commission, from executive departments to the office of the President of the United States, from duty outside of the District of Columbia to duty in the executive departments in the District of Columbia, and concerning transfer of em- ployees from one department to another department, see note to section 169, Re- vised Statutes. Expenditures for personal services in the Navy Department from appropriations made for the naval service, are restricted by the naval appropriation act of June 4, 1920 (41 Stat., 833), the legislative, executive, and judicial appropriation act of March 3, 1921 (41 Stat., 1287), and by similar acts for other years. Scope of section. — This section as amended restricts the detail of employees to the depart- ment in which they are regularly employed. From a consideration of other laws bearing on the subject (sees. 3678 and 3682, R. S.; act Aug. 5, 1882, sec. 4, 22_Stat., 255) it seems clear that Congress has strictly limited the power and discretion of a head of department in this mat- ter of employment and detail to cases falling within the amended section 166, Revised Statutes. (25 Op. Atty. Gen., 302.) But see, 30 Op. Atty. Gen., 131, holding that "there appears to be notliing in the statutes which proliibits the head of a department from permitting a clerk of his department to render additional services, withoutextra compensation the necessity for which arises in his or in other departments." Specifically it was held in this case that the disbursing clerk of one depart- ment might legally be designated to disburse moneys for another department, pending the appointment of a disbursing clerk as authorized by law for the latter department. Payment of clerks transferred. — In mak- ing distribution of clerks among the various bureaus and offices in accordance with this sec- tion, care should be taken that in no case shall any such clerk be paid from any appropriation made for contingent expenses or for any specific or general purpose, unless such payment is specifically provided for in the law granting the appropriation. (20 Op. Atty. Gen., 750.) The use of contingent appropriations for clerical compensation is restricted by section 3682, Re- vised Statutes, and by act of August 5, 1882, section 4 (22 Stat., 255). "Chiefs of divisions" of the Department of Agriculture are "clerks" within tlie language of this section. (20 Op. Atty. Gen., 703; see also note to sec. 169, R. S.) Increasing- and diminishing clerks of dif- ferent grades. — By act of August 15, 1876, sec- tion 3 (19 Stat., 169), it was provided: "That whenever, in the judgment of the head of any department, the duties assigned to a clerk of one 54641°— 22- ■14 203 Sec. 167. Pt.2. REVISED STATUTES. Executive Departments. at a different rate of pay or in excess of the num- bers authorized by appropriations made by Congress be, and thev are hereby, repealed." See also 19 Comp. Dec, 708.] WTiere the position of disbursing clerk in a bureau was established by Congress, and has since been regularly appropriated for, such position must be regarded as essential to the organization of the bureau in question, and until Congress otherwise provides it would be "inconsistent with law," within the meaning of section 161, Revised Statutes, for the head of the department to transfer the duties for- merly performed by such disbursing clerk to the disbursing clerk of the department to which the bureau is attached. (29 Op. Atty. Gen., 247.) See, in this connection, 30 Op. Atty. Gen., 131, noted above, under "Scope of section." class can be as well performed by a clerk of a lower class or by a female clerk, it shall be lawful for him to diminLsh the number of clerks of the liigher grade and increase the number of the clerks of the lower grade within the limit of the total appropriation for such clerical service," etc. [This provision is apparently repealed by the act of August 5, 1882, section 4 (22 Stat.,'255), which act in part provides as follows: "That no civil officer, clerk * * * or other em- ployee shall, after the first day of October next, be employed in any of the executive depart- ments, or subordinate bureaus or offices there- of at the seat of government, except only at such rates, and in such numbers, respectively, as may be specifically appropriated for by Con- gress for such clerical and other personal serv- icer for each fiscal year. * * * And all laws and parts of laws authorizing the employment of officers, clerks * * * or other employees Sec. 167. [Salaries of persons employed in the Departments.] The aimual salaries of clerks and employes in the Departments, whose compensation is not otherwise prescribed, shall be as follows: First. To clerks of the fourth class, eighteen hundred dollars. Second. To clerks of the third class, sixteen hundred dollars. Third. To clerks of the second class, fourteen hundred dollars. Fourth. To clerks of the first class, twelve hundred dollars. Fifth. To the women employed in duties of a clerical character, subor- dinate to those assigned to clerks of the first class, including copyists and counters, or temjDorarily employed to perform the duties of a clerk, nine hun- dred dollars. Sixth. To messengers, eight hundred and forty dollars. Seventh. To assistant messengers, seven hundred and twenty dollars. Eighth. To laborers, seven hundred and twenty dollars. Ninth. To watchmen, seven hundred and twenty dollars. (3 Mar., 1853, c. 97, s. 3, v. 10, pp. 209, 211; 22 Apr., 1854, c. 52, s 1, v. 10, p. 276; 18 Aug., 1856, Res. 18, v. 11, p. 145; 23 July, 1866, c. 208, s. 6, V. 14, p. 207; 12 July, 1870, c. 251, s. 3, v. 16, pp. 230, 250.) As to classification of department clerks, see sec- tion 163, Revised Statutes,and note thereto. EmplojTnent and compensation of women — see section 16.5, Re\nsed Statutes. This section is modified by act of March 4, 1913, section 2 (37 Stat., 790), fixing the pay of telephone-switchboard operators, assistant messengers, firemen, watchmen, laborers, and charwomen. Rules for di\'ision of time and computation of pay, in the cases of persons in the civil service whose stated compensation is an- nual or monthly, are gi^-en in the act of June 30, 1906, section 6 (34 Stat., 763). Similar rules for computation in cases of persons in the Army are contained in the act of June 12, 1906 (34 Stat., 248). Congress has pro\'ided that appropriations made in the annual legislative, executive, and judicial appropriation act are not to be used for compensation of any person inca- pacitated otherwise than temporarily for performing service. (Act Mar. 3, 1917, sec. 3, 39 Stat., 1121.) Annual report to Congress of employees "below a fair standard of efficiency" is required by act of July 11, 1890 (26 Stat., 268). Compensation may be paid in certain cases where employee is injured in course of em- ployment. (Act Sept. 7, 1916, 39 Stat., 742.) An employee of the Government is entitled to the compensation allowed by law, and is not limited by the amount appro- priated by Congress. (Graham's case, 1 Ct. Cls., 380.) ^^^lere one statute establishes the salary of an officer at $5,000 and another appropriates only $3,600 therefor, and the latter contains no provision repealing acts inconsistent and none declaring that payment of the amounts appro- priated shall be in full compensation, it is sim- ply a case of inadequate appropriation, and the officer can recover the difference. (French's, Case, 16 Ct. Cls., 419.) The compensation of pubUc officers depends upon general and continuing laws, irrespective of the annual appropriation acts. (Collins v. 204 Executive Departments. Ft. 2. REVISED STATUTES. Sec. 169. U. S., 15 Ct. CLs., 22; see also Briggs. v. U. S., 15 Ct. Cls., 48; Freedmau's Bank v. U. S., 16 Ct. Cls., 19.) A statute wliicli fixes the annual salary of a public officer at a designated sum without limitation as to time, is not abrogated or sus- pended by subsequent enactments appropriat- ing a less amount for his ser\ices for a particular fiscal year, but containing no words which expressly or impliedly modify or repeal it. (U. S. V. Langston, 118 U. S., 389; Vulte's case, 47 Ct. Cls., 324, 327, 233 U. S., 509, 514; 20 Comp. Dec, 821; 22 Comp. Dec, 691.) Where a salary is fixed by statute, and by inadvertence or mistake an inadequate sum is appropriated, no intention to reduce the compensation can be imputed. But where Congress by prospective appropriation acts gives notice to officers that their salaries will be reduced, and this notice is given before the service is rendered, and the intention is clear, the legislative will must be given effect. This would not apply to services performed before the appropriation act was passed. (Dyer v. U. S., 20 Ct. Cls., 171, distinguishing Graham's case. See also sec. 169 and note.) Where the words "in full compensation" are contained in an appropriation act where the amount appropriated is less than the salary fixed ])y law, such words have a clear, distinct, and well-understood signification, which can not be overlooked or argued out of the act. (Fisher v. U. S., 15 Ct. Cls., 323; U. S. v. Fisher, 109 U. S., 143; see also U. S. v. Mitchell, 109 U. S., 146.) The failure of Congress to make specific ap- propriation for the salary of the disl)ursing clerk of a department would not appear to be an in- superable objection to the appointment of such clerk in view of section 176, Revised Statutes, which fixes the total compensation of such appointee until otherwise provided by Congress. (30 Op. Atty. Gen., 130.) The whole ciuestion depends on the intention of Congress as expressed in the statutes. (Bel- knap V. U. S. 150 U. S., 594, quoting U. S. v. TVIitchell, 109 U. S., 146, 150, and holding that ' ' the payment to an Indian agent of the amount appropriated by Congress for the payment of his salary being less than the amount fixed by general law as the salary of the office, and liia receipt of the sum paid ' in full of my pay for services for the period herein expressed', is a full satisfaction of the claim." See also Dun- woody V. U. S., 143 U. S., 578; Wallace v. U. S., 133 U. S., 180; Kidder v. U. S. 20 Ct. Cls., 46; Francis v. U. S., 22 Ct. Cls., 403.) [Act of August 5, 1882, section 4 (22 Stat., 255), provides that no persons shall be employed in any executive department except at such rates and in such numbers as may be specifically appropriated for by Congress. By legislative, executive, and judicial appropriation act of July 16, 1914, section 6 (38 Stat., 509), it is pro- vided that "the rates of salaries or compensa- tion of officers or employees herein appropriated shall constitute the rate of salary or compensa- tion of such officers or employees, respectively, until otherwise fixed by annual rate of appro- priation or other law."] Sec. 168. [Temporary clerks.] Except when a different compensation is expressly prescribed by law, any clerk temporarily employed to perform the same or similar duties with those belonging to clerks of either class, is entitled to the same salary as is allowed to clerks of that class. — (22 April, 1854, c. 52, s. 1, V. 10, p. 276.) Any person temporarily appointed under cer- tain circmnstances to perform the duties of a pay officer in the Navy during a vacancy shall be entitled to receive the pay of such grade while so acting. See sections 1381 and 1564, Revised Statutes. Section 242, Revised Statutes, provides that "No clerk temporarily employed in the Department of the Treasury shall receive a greater compensation than at the rate of $1,200 a year for the time actually em- ployed." See section 171, Revised Statutes, as to em- ployment of extra clerks during sessions of Congress. Sec. 169. [Appointment, number, and compensation of employes author- ized.] Each head of a Department is authorized to employ in his Department such number of clerks of the several classes recognized by law, and such mes- sengers, assistant messengers, copyists, watchmen, laborers, and other employes, and at such rates of compensation, respectively, as may be ajij^ropriated for by Congress from year to year. — (Ex parte Hennen, 13 Pet. 230; 3 Mar. 1875, c. 129, V. 18, ff. 360, 361, and 365; 3 Mar., 1875, c. 130, ss. 2, 3, v. 18, f. 399.) See note to section 166, re distribution of clerks and temporary details. Employment of persons beyond appropriations made by law is prohibited by act of August 5, 1882, section 4 (22 Stat., 255), and act of August 15, 1876, section 5 (19 Stat., 169). Expenditures beyond appropriations prohibited by section 3679, Revised Statutes. Acceptance of voluntary service prohibited, except in sudden emergencies. (Act Mav 1, 1884, 23 Stat., 17; act Mar. 3, 1905, 33 Stat., 1257; and act Feb. 27, 1906, 34 Stat., 49.) 205 Sec. 169. rt.2. REVISED STATUTES. Executive Departments. Salaries paid from "lump sum" appropriations can not be increased except under certain prescribed conditions. (Act Aug. 2G, 1912, sec. 7, 37 Stat., (52(5, as amended l)v act Mar. 4, 1913, sec. 4, 37 Stat., 790; 19 Comp. Dec, 184, 270, 303, 569, 578, 789; 20 Comp. Dec, 9, 128, 131.) Oath of office prior to appointment is prescribed by section 1757, Revised Statutes, ae amended. Employees serving for a less period than a year are limited to the maximum pro rata rate proA^ded bv law for the time thev mav be in service. (Sec.2GS7, R.S.; 27 Op.\A.tty.Gen., 358; Marston v. U. S., 71 Fed. Rep., 496.) Civil employees paid from appropriations for the military or naval establishment or other branch of t'he public service outside of Dis- trict of Columbia can not be detailed for duty in any division of any executive de- partment in the District of C'olumbia. (Act June 22, 1906, sec. 6, 34 Stat., 449; similar pro\'ision is contained in act of Aug. 5, 1882, sec 4, 22 Stat., 255.) Classified employees not to be detailed for duty outside of District of Columbia at expense of appropriations in legislative, executive and judicial act, except for duty pertaining directly to their work at seat of Government. (Act May 10, 1916, sec. 5, 39 Stat., 120.) Expenditures for personal services in the Navy Department from appropriations made for the naval service. (See note to section 166, R. S.) The emplojTnent of enlisted men of the Marine Corps on clerical duty at headquarters of the Marine Corps is permitted by law. (File 4600, Apr. 10, 1906; 21686, Apr. 11, 1906.) Detail of employees from the executive depart- ments to the Civil Service Commission for duty in the District of -Columbia is pro- hibited by act of March 4, 1913 (37 Stat., 750); 20 Comp. Dec, 106. Temporary detail of employees in executive departments to office of President of the United States is authorized by act of March 4, 1913 (37 Stat., 749). Transfer of employees from one department to another department is restricted bv act of June 22, 1906, section 5(34 Stat.,' 449), as amended bv acts of October 6, 1917 (40 Stat., 383), and March 28, 1918 (40 Stat.. 498). As to payment of employees temporarily de- tailed to other departments, see 22 Comp. Dec, 145, and section 3678, Revised Stat- utes. For number and compensation of employees authorized by appropriations of Congress, in accordance with this section, to be em- ployed in the Xavv Department, see act of July 16, 1914 (38 Stat., 403) and subsequent appropriation acts. See also section 416, Revised Statutes, which specified number and compensation of certain principal em- ployees who "shall be" in the Navy De- partment; and section 6, legislative, execu- tive, and judicial appropriation act of July 16, 1914 (38 Stat., 509), providing that "'the rates of salaries or compensation of officers or employees herein appropriated shall con- stitute the rate of salary or compensation of such oflicers or employees, respectively, until othervvi.se fixed by annual rate of appropriation or other law." The word "employ" as used in this section is equivalent to "appoint" (21 Op. Atty. Gen., 355. 3(53). The expression "clerks of the several classes recognized by law," as used in this section, is not limited in its effect to the four main classes of clerks mentioned in sections 163 and 167, Revised Statutes, but has always been treated as including chiefs of division, chief clerks, and disbursing clerks of the various de- partments. Accordingly, held that the chief clerk, chiefs of bureaus, and translator in the State Department are all "clerks" within the meaning of this section, and are to be appointed by the Secretary of State. (21 Op. Atty. Gen., 363.) In this case the so-called "bureaus" in the State Department were originally estab- lished by regulation, and although recognized by (Congress in appropriation acts they were not bureaus within the meaning of section 178, Re- vised Statutes. The Attorney General said: The word ' ' bureau, ' ' like many others, is loosely used in the revision, the terminology of the codified statutes not having been made entirely definite and uniform. The position of chief of the division of Alaska fisheries in the Bureau of Fisheries ($3,500) was established by an appropriation item, silent as to how or by \vhom the position should be filled. The general character of his duties is not unlike that of chiefs of divisions generally in the sev- eral executive departments. Accordingly, held that appointment should be made by head of the department. (29 Op. Atty. Gen., 116.) This section was unquestionably intended to have a very comprehensive scope, and to em- brace a variety of subordinate officers in the different departments, besides those designated as clerks of the first, second, third, and fourth classes; and in view of the fact that section 169 is a standing provision it is also fair to assume that Congress did not intend it to be limited to the classes of clerks "recognized by law" at the time of the revision. (29 Op. Atty. Gen., 116.) Engravers, electrotypers, photographers (Coast and (leodetic Survey), and also physi- cists, assistant physicists, assistant chemists, laboratory assistants, aids, and superintendent of mechanical plant (Bureau of Standards), fall within the provisions of this section and should be appointed by the head of the department. Wliile they are in the main positions requiring technical skill, they are "clerks" within the meaning of section 169. (29 Op. Atty. Gen., 116; approving 15 Op. Atty. Gen., 6.) In the Navy Department the solicitor, the chief clerk of the department, and the chief clerks of the different bureaus are in practice appointed by the Secretary of the Navy in ac- cordance with this section. The appointment of disbursing clerks is specifically provided for by section 176, Revised Statutes. A local agent at Seattle, Wash., should be employed by the head of the department under this section. I am advised informally by the Bureau of Fisheries that his duties are to be strictly clerical. (29 Op. Atty. Gen., 116.) 206 Executive Departments. rt. 2. REVISED STATUTES. Sec. 169. This section does not invest the head of the Treasury Department with authority to appoint certain deputy bureau officers authorized by law in tliat departmen t ; but their api:)ointment must be made under the Constitution by the Presi- dent, with the advice and coubent of the Senate. (See Constitution, Art. II, sec. 2, par. 2.; 15 Op. Atty. Gen., 3; 26 Op. Atty. Gen., 627.) The office of Deputy Commissioner of Fish- eries, at an annual salary of $3,000, created by an item in an appropriation act, which failed to specify how or by whom the appointment should be made, or to prescribe its duties, should be filled by the President, by and with the advice and consent of the Senate. In the absence of an express enactment to the con- trary the appointment of any officer of the United States belongs to the President and Senate (citing 6 Op. Atty. Gen., 1; 15 Op. Atty. Gen.,3, 449; 17 Op. Atty. Gen., 532; 18 Op. Atty. Gen., 98, 298; 26 Op. Atty. Gen., 627). The title of the office in this case necessarily implies a power to perform all the duties which might be performed by the Commissioner of Fisheries, the nature of whose duties is defined by statute, and whose appointment is vested in the Presi- dent, by and with the advice and consent of the Senate. Accordingly, held that a Deputy Commissioner of Fisheries appointed by the head of the department was not legally ap- pointed, his status being that of a de facto officer. (29 Op. Atty. Gen., 116.) The positions of assistant salmon agent ($1,800), salmon warden ($1,200), and deputy wardens ($600), must be filled by the President, by and with the advice and consent of the Senate. There is no express statutory author- ity giving the head of the department power to make such appointments. These are officers whose duties are manifestly not clerical, nor can they be considered otherwise within the scope of section 169, Revised Statutes. (29 Op. Atty. Gen., 116.) The sole responsibility of every appoint- ment in a department rests upon the head of that department, except where the power to appoint is otherwise specially provided for by statute. The power of appointment carries with it the power of removal. These powers, being discretionary, can not be delegated by the head of the department, though he may inquire, investigate, and determine by the aid of subordinates; but the final determination must be his act and not theirs. (21 Op. Atty. Gen., 355; 29 Op. Atty. Gen., 274. See note to sec. 177, R. S.) The power of appointment, especially where fixed by statute in the head of the department, can not be delegated to subordinates without authority of Congress; but where Congress au- thorizes the chief clerk of a department to sign official papers during the temporary absence of the Secretary and Assistant Secretaries of the department, this is sufficient authority to sign appointment of a special disbursing agent, although the law required such agents be ap- pointed bv the head of the department. (29 Op. Atty. Gen., 273.) The written appointment of the Secretary of the Navy, or his approval in writing, is required for the employment of any clerk, etc., in the Navy Department. (Art. 52, Naval Instruc- tions, 1913.) Appointments made by the heads of bu- reaus in accordance with statute are presumed to be made with approval of the head of the department, and are made by the head of a department within the meaning of section 2, Article II, of the Constitution. (Price v. Abbott, 17 Fed. Rep., 506; Frelinghuvsen v. Baldwin, 12 Fed. Rep., 396; Stanton f). Wilke- son, 22 Fed. Cas. No. 13299; Ekiu v. U. S., 142 U. S., 651.) A substitute clerk can not be employed in place of a clerk in the Navy Department on leave without pav. (15 Comp. Dec, 856; com- pare Chisolm V. tJ. S., 27 Ct. Cls., 94.) A substitute clerk can be employed under a rule of the Civil Service Commission, if approved by the President, where such em- ployment would impose no additional expendi- ture upon the Government, i. e., where the regular clerk is temporarily absent without pay. And such a rule would not be contrary to the act of August 5, 1882, section 4 (22 Stat., 255). (19 Op. Atty. Gen., 507.) An employee entering upon duty on the last day of a month which has 31 days can not lawfully be paid for services rendered on that day. (20 Comp. Dec, 165, affirming 13 Comp. Dec, 64 and 75; see also 20 Comp. Dec, 772, 867.) Date of appointment. — An appointment made to take effect at a prior date is inoperative prior to the date on which it was actually made and accepted. (8 Comp. Dec, 521; 20 Comp. Dec, 214, citing Morey v. U. S., 35 Ct. Cls., 603; Jackson v. U. S., 42 Ct. Cls., 39; 17 Comp. Dec, 452.) An appointment to office is an act done, a direct exercise of power in some particular direction, not necessarily evidenced in writing but none the less complete at a particular point of time; and until the act is done it remains undone. Something more than the act of ap- pointment also is necessary to invest the person appointed with the office and to give him the right to compensation. It must be accepted, and it is not understood how an appointment can be accepted, either formally or impliedly, before it has been made. (8 Comp. Dec, 521; Lee v. U. S., 45 Ct. Cls., 62.) Acceptance is a distinct act from the appointment. — The appointment is the sole act of the appointing power; the acceptance is the sole act of the officer, and is in plain com- mon sense posterior to the appointment. As he may resign, so may he refuse to accept; but neither the one nor the other is capable of rendering the appointment a nonentity. (Mar- bury V. Madison, 1 Cranch., 137.) Acceptance is necessary to vest the office in the appointee, and a formal acceptance is the evidence which in the public service generally, it has been customary to require. (12 Op. Atty. Gen., 229.) But where a former officer of the Army asked the President in writing to re- instate him under an act of Congress, and the President did so, no further formal acceptance was necessary. (Collins ti. U. S., 15 Ct.Cls., 31.) Execution of the oath of office may be re- garded as an acceptance of the office. (8 Comp. Dec, 521; 19 Op. Atty. Gen., 284.) 207 Sec. 171. Pt.2. REVISED STATUTES. Executive Departments. Expiration of appointment. — ^^^lere the appointment ifl to tenninato, nncler its terms, upon the happening of an event which is un- certain, notice to the employee of its happening is necessary to entl his contract of employment, notwithstanding the prior occurrence of the event which fixed the termination. (20 Comp. Dec, 149.) Right to compensation. — A salary that is established by statute can not be increased or diminished by executive ofiicers. (Adams v. U. S., 20 Ct. Cla., 115; Dyer v. U. S., 20 Ct. Cls., 166.) A jniblic officer may recover the lawful com- pensation of his office, notwithstanding that he accepted a less amount and receipted in full therefor. (Adams v. U. S., 20 Ct. Cls., 115; quoted with approval, Glavey v. U. S., 182 U. S., 607.) It is not within the power of the head of a department to reduce or change the salary of scribed; and an agreement to that effect, being contrary to public policy, will not be enforced or given effect as an estoppel. (Miller v. U. S., 103 Fed. Rep., 413; Glavey v. U. S., 182 U. S., 605. (See also notes to sees. 166 and 167, Revised Statutes.) There is no legal necessity for the re- appointment of the present inciunbents of offices where there appears to be no evidence that Congress intended to abolish the existing positions and create new ones. The mere crea- tion of a new administrative division in which such positions are placed does not establish new offices. The existing offices are continued . (29 Op. Atty. Gen., 116; compare 21 Comp. Dec, 49.) A new appointment is not made necessary merely by reason of an increase in the salary of an office. (29 Atty. Gen., 116; citing 1 Comp. Dec, 267; 1 Comp. Dec, 313; 3 Comp. Dec, 336; compare 4 Comp. Dec, 28.) an officer which Congress has specifically pre- Sec. 170. [Extra compensation to clerks restricted.] No money shall be paid to any clerk employed in either Department at an annual salary, as com- pensation for extra services, miless expressly authorized by law. — (3 Mar., 1863, c. 97, s. 3, V. 10, pp. 209, 211; 17 June, 1844, c. 105, s. 1, v. 5, pp. 681, 687; 28 Feb., 1867, Res. 30, s. 2, v. 14, p. 569.) also by act of March 4, 1907 (34 Stat., 1372), providing that, "To enable the Secretary of the Treasury to effect a change in the methods of bookkeeping in the Treasury Department, and to install a double entry system of bookkeeping, 15,000, or so much thereof as may be necessary, is hereby ap- propriated, to remain available until ex- pended; said sum to be used by the Secre- tary of the Treasury, as he shall determine, in payment for services of such of the force of the Division of Bookkeeping and War- rants of the Treasury Department as may be needed to carry the change into effect, notwithstanding the provisions of sections 170, 1763, 1764, and 1765 of the Revised Statutes." Compensation for extra services "which any officer or clerk may be required to per- form," imless expressly authorized by law, is prohibited by section 1764, Revised Statutes. See that section and note thereto. Compensation not to be charged by persons in departments for administering oaths of office to emplovees on appointment or promotion. (Act Aug. 29, 1890, 26 Stat., 371.) This section was expressly modified by act of March 3, 1879 (20 Stat., 384), which author- ized the Secretary of the Treasury to pay additional compensation to clerks of his department during that year, for work done "in addition to the usual business hours;" Sec. 171. [Employment of extra clerks during sessions of Congress.] No extra clerk shall be employed in any Department, Bureau, or office, at the seat of Government, except durmg the session of Congress, or when indispensably necessary in answering some call made by either House of Congress at one session to be answered at another; nor then, except by order of the head of the Department in which, or in some Bureau or office of which, such extra clerk shall be employed. And no extra clerk employed in either of the Departments shall receive compensation except for time actually and necessarily employed, nor any greater compensation than three dollars a day for copying, or four dollars a day for any other service. — (26 Aug., 1842, c. 202, s. 15, v. 5, p. 526; 15 Aug., 1876, c. 287, s. 5, v. 19, p. 169.) In connection with this section consult actof August 5,1882, section 4 (22 Stat., 255), and act of August 15, 1876, section 5 (19 Stat., 169), which acts prohibit employment of clerks, etc., by heads of departments beyond appropriations made by law. Although the former act ex- pressly repealed section 172, Revised Statutes, it contained no specific reference to this sec- tion. Section 3682, Revised Statutes, and actof August 5, 1882, section 4 (22 Stat., 255), restrict use of contingent and miscellaneous appropria- tions for clerical compensation. This section was repealed (according to the Comptroller) by the act of August 5, 1882, section 4 (22 Stat., 255). (Comp. Dec, Oct. 28, 1915, file 26254-1906.) 208 Executive Departments. Ft. 2. REVISED STATUTES. Sec. 176. Sec. 172. [Restriction on employment of messengers and laborers, pealed.] Re- by law, or is necessary to carry into effect some object for which an appropriation has been specifically made."— (26 Aug., 1842, c. 202, e. 15, V. 5, p. 526.) It was repealed by act of August 5, 1882, 8ection4 (22 Stat., 255; 25 Op. Atty. Gen., 302.) This section was as follows: " Sec. 172. No messenger, assistant messenger, laborer, nor other subordinate assistant shall be employed in any department, bureau, or office at the seat of Government, or paid out of the contingent fund appropriated to such department, bureau, or office, unless such employment is authorized Sec. 173. [Duties of chief clerks, supervising subordinates.] Each chief clerk in the several Departments, and Bureaus, and other offices connected with the Departments, shall supervise, under the direction of his immediate superior, the duties of the other clerks therein, and see that they are faithfully performed.— (26 Aug., 1842, c. 202, s. 13, v. 5, p. 525.) the exercise of his many and varied and impor- tant duties and responsibilities, he has an office force, super\ised by the chief clerk of the department, which is required to determine and pass upon all matters requiring his action which, by law or regulation, are not otherwise required to be handled. (File 22353-13.) For authority of chief clerks to administer oaths of office, see act of August 29, 1890 (26 Stat., 371.) For authority of chief clerk to act as chief of bureau, see section 178, Revised Statutes. As to meaning of "chief clerk" see note to section 178, Revised Statutes. Chief Clerk, Navy Department.— To fa- cilitate and aid the Secretary of the Navy in Sec. 174. [Duties of chief clerks ; monthly reports, etc.] Each chief clerk shall take care, from time to time, that the duties of the other clerks are distrib- uted with equality and uniformity, according to the nature of the case. He shall revise such distribution from time to tune, for the purpose of correcting any tendency to undue accumulation or reduction of duties, whether arising from individual negligence or incapacity, or from increase or diminution of particular kinds of business. And he shall report monthly to his superior officer any existing defect that he may be aware of in the arrangement or dispatch of business.— (26 Aug., 1842, c. 202, s. 13, v. 5, p. 525.) Heads of departments are required to make quarterly reports to the President of the condition of business by act March 15, 1898, section 7 (30 Stat., 316.) Condition of business is required to be reported monthly to head of department by chiefs of bureaus and offices, by act of March 15, 1898 (30 Stat., 317). In the Navy Depart- ment a report of condition of business is required quarterly from bureaus and offices. (Art. 11, Naval Instructions.) Sec. 175. [Action on reports of chief clerks.] Each head of a Department, chief of a Bureau, or other superior officer, shall, upon receiving each monthly report of his chief clerk, rendered pursuant to the preceding section, examine the facts stated therein, and take such measures, in the exercise of the powers conferred upon him by law, as may be necessary and proper to amend any existing defects in the arrangement or dispatch of business disclosed by such report.— (26 Aug., 1842, c. 202, s. 13, v. 5, p. 525.) see. 5, 27 Stat., 715, as amended by act Mar. 15, 1898, 30 Stat., 317.) Heads of departments are required to extend hours of labor in certain cases when public business is in arrears. (Act Mar. 3, 1893, Sec. 176. [Disbursing clerks.] The disbursing clerks authorized by law in the several Departments shall be appointed by the heads of the respective Departments, from clerks of the fourth class; and shall each give a bond to the United States for the faithful discharge of the duties of his office according to law in such amount as shall be directed by the Secretary of the Treasury, and 209 Sec. 176. Pt.2. REVISED STATUTES. Executive Departments. with sureties to the satisfaction of the Solicitor of the Treasury; and shall from time to time renew, strengthen, and increase liis ollicial bond, as the Secretary of the Treasury may direct. Each disbursing clerk, except the disbursmg clerk of the Treasury Department, umst, when directed so to do by the head of the Department, superintend the buildmg occupied by his Depart- ment. Each disbursing clerk is entitled to receive, in compensation for his services in disbursing, such sum in addition to his salary as a clerk of the fourth class as shall make his whole annual compensation two thousand dollars a year.— (3 Mar., 1853, c. 97, s. 3, v. 10, pp. 209, 211; 3 Mar., 1855, c. 175, s. 4, V. 10, p. 669; 3 Mar., 1873, c. 226, s. X, v. 17, p. 485 (492).) The salary of the disbursing clerk in the Navy Department was lixed at §2,250 per annum by act of May 29, 1920 (41 Stat., 663), and appropriation acts for prior yeai-s. Specific provision for salary of a disbursing clerk in the Navy Department was omitted in the appropriation act of March 3, 1921 (41 Stat.. 1282), the position of "disbursing officer" at $3,000 per annum having in the meantime been created from lump sum appropriations. (See Estimates of Appro- priations, 1922, p. 102.) The appointment of a superintendent for the State, War, and Na\y Department Build- ing, by detail from officers of the Army or Navy, is provided for by act of March 3, 1883 (22 Stat., 553). See note to section 415, Revised Statutes. Temporary appointment in case of absence or sickness of disbursing clerk is authorized by act of March 4, 1909 (35 Stat., 1027). The emplojTnent of special disbursing agents is provided for by section 3614, ile^dsed Statutes. (30 Op. Atty. Gen., 132.) Disbursing agents abroad are not to be employed for naval ser\'ice, under contract or other- wise, unless they hold appointments con- firmed by tlxe Senate. (Sec. 1550, R. S.) Duty of disbursing officers to examine pay- rolls and vouchers. (Act Aug. 23, 1912, 37 Stat., 375.) Disbursing officers may apply for and obtain decision of Comptroller of the Treasury concerning legahty of proposed payments (act July 31, 1894, sec. 8, 28 Stat., 208); and may appeal to Comptroller of the Treas- ury from disallowances in their accounts by auditor. (Same act and section.) On general subject of accounting, see section 236, Revised Statutes, and note thereto. All books, papers, and other matters relating to the office or accounts of disbursing officers of the executive departments shall at all times be subject to inspection and exami- nation by the Comptroller of the Treasury, and the auditor of tlie Treasury authorized to settle such accounts, or by the duly authorized agents of either of said officials. (Act Feb. 19, 1897, 29 SUit., 550. )_ Disbursing officers are required to furmish heads of departments with certain data for annual reports to Congress (sec. 193, R. S.) and are required to make annual report to the Secretary of the Treasury of checks out- standing for three years or more. (Sec. 310, R. S.) Secretary of the Treasury is required to report annually to Congress disbursing officers delinquent in rendering accounts. (Act May 28, 1896, 29 Stat., 179.) Embezzlement — on general subject of, see sec- tions 86-96, Criminal Code, act of March 4, 1909 (35 Stat., 1105, 1106), and note to sec- tion 1624, Revised Statutes, article 14. Advances of public money are prohibited by section 3648, Remed Statutes; and such unauthorized advances are punishable as embezzlement under section 87, Criminal Code, act of March 4, 1909 (35 Stat., 1109). A disbursing officer who fails safely to keep public moneys in his care is guilty of em- bezzlement. (Sec. 88, Criminal Code, act Mar. 4, 1909, 35 Stat., 1105. See note to sec. 1624, R. S., art. 14.) A disbursing officer who deposits money in a bank not designated as a depository in accordance with sections 3620 and 3639, Revised Statutes, is liable with his sureties for any loss that may arise from the failure of such bank (20 Op. Atty. Gen., 24); and his conduct in depositing public money in a place not authonzed by law is punishable as embezzlement under section 87, Crimi- nal Code, act of March 4, 1909 (35 Stat., 1105) ; and the conduct of the banker or offi- cers of the bank in knowingly recei\ing such money on deposit is also punishable as embezzlement by section 96, Criminal Code, act of March 4, 1909 (35 Stat., 1106). Disbursing officers are prohibited by law from exchanging Government funds in their control for other funds, with certain excep- tions. Head of department is required im- mediately to suspend from duty any dis- bursing officer who \'iolates tliis proliibi- tion, and make report to the President to the end that such disbursing officer may be promptly removed from office or restored to duty. (Sees. 3639 and 3651, R.S.) And such unauthorized exchange of Govern- ment funds is punishable as embezzlement under section 89, Criminal Code, act of March 4, 1909 (35 Stat., 1105). See note tanklin^Sugar Refining Co. v. U. S., 178 Fed. Rep., 743.) \\Tiere an appeal was heard and decided by the assistant head of a department, it will be presumed, the contrary not appearing, that the Assistant Secretary was lawfully exer- cising the Secretary's powers, as he was author- ized to do by this section. (In re Jem Yuen, 188 Fed. Rep., 350, 354; see U. S. v. Redfem, 180 Fed. Rep., 508; and see note to sec. 178, R. S.) So long as the powers delegated to the Assist- ant Secretary by his superior remain unrevoked, the authority of the former is coordinate and concurrent with that of the latter. When the assistant acts at a time the Secretary is not absent or sick, under a regulation made by the Secretary prescribing his powers and duties, he should sign with his own proper official desig- nation. When the Secretary is absent or sick, if the assistant is in charge of the department in pursuance of sections 177 or 179, Revised Statutes, he should sign as Acting Secretary. (19 Op. Atty. Gen., 133.) See limitation contained in section 180, Re- vised Statutes. "Death, resignation, absence, or sickness." As to construction of these words, see note to section 179, Revised Statutes. The courts take judicial notice of the fact that a deputy or assistant to a public officer, in a particular case, is provided for by law, and that such deputy or assistant may exercise the powers and discharge the duties attached to the office during a vacancy in that office, or during the absence or inability of his superior. Where such deputy or assistant signed as "acting" a document required by statute to be signed by his superior, it will be presumed that at the date he so signed he was authorized to exercise the powers and discharge the duties of the office and was therefore at the time acting as such officer. (Keyser v. Hitz, 133 U. S., 138, 145.) For other cases see note to section 177, Re- vised Statutes. The words "the assistant or deputy of such chief or of such officer," and "the chief clerk of such Bureau," in this section, can only refer to assistants or deputies and chief clerks whose appointment is specifically pro- vided for by statute. Accordingly, an officer of the Navy detailed by the Secretary of the Navy as assistant to the chief of a bureau in the Navy Department is not, in the absence of a statute making provision for such assistant, authorized to perform the duties of the chief in case of a vacancy or the absence or sickness of his superior. This section must be read in con- nection with laws providing for the establish- ment of the Department of the Navy, and spe- 213 Sec. 179. Pt. 2. REVISED STATUTES. Executive Departments. cifically authorizins; chief clerks and assistants in certain bureaus. (19 Op. Atty. Gen., 503; 28 Op. Atty. Gen.. 05.) Assistants to chiefs of bureaus in the Navy Department are specifically provided for by the following laws: Bureau of Naviga- tion, "act of March 3, 1893 (27 Stat., 717); Bureau of Supplies and Accounts, act of Julv 26, 1894 (2S Stat., 132); February 25, 1903 (32 Stat., 890); Bureau of Ordnance, act of May 4, 1898 (30 Stat., 373); Bureau of Steam Engineering, act of March 3, 1905 (33 Stat., 1111); Bureau of Yards and Docks, Bureau of Construction and Repair, and .Tudce Advocate General, act of August 29, 1916, 39 Stat., 558. In all of these cases the laws cited specifically provide that the assistant shall perform the duties of the chief of the bureau in the latter's absence. An assistant to the Chief of the Bureau of Medicine and Sur- gery is authorized by section 1375, Revised Statutes; that section does not contain any S revision that such assistant shall perform the uties of the chief of the bureau in the latter's absence, but he is an "assistant" specifically provided for by law and therefore authorized to act as Chief of the Bureau of Medicine and Surgery in accordance with the provisions of section 178, Revised Statutes, and the Attorney General's opinion above cited (19 Op. Attv. Gen., 503). The detail of "not less than fifteen officers of and above the rank of lieutenant commander of the Navy or major of the Marine Corps," to "assist the Chief of Naval Opera- I Sec. 179. [Vacancies, authority of President to fill temporarily.] In any of the cases mentioned in the two preceding sections, except the death, resignation, absence, or sickness of the Attorney-General, the President may, in his discre- tion, authorize and direct the head of any other Department or any other ofTicer in either Department, whose appointment is vested in the President, by and with the advice and consent of the Senate, to perform the duties of the vacant oflice until a successor is appointed, or the sickness or absence of the incumbent shall cease. — (23 July, 1868, c. 227, s. 3, v. 15, p. 168; 22 June, 1870, c. 150, s. 2, V. 16, p. 162.) tions in performing the dudes of his office," was authorized by act of August 29, 1916 (39 Stat., 558; see file 22724-40, Apr. 24, 1919.) In bureaus of the Navy Department where as- sistants are not specifically provided for by law, officers of the Navy detailed to duty as assist- ants to the chiqfs of such bureaus are not author- ized to perform the duties of their chief in case of the latter's absence or sickness. "Without making a question that the assignment of com- missioned officers of the Navy to act as assist- ants to chiefs of bureaus may be within the gen- eral powers of the Secretary of the Navy, I think that section 178 can only refer to assistants or deputies whose appointment is specifically provided for by statute." (19 Op. Atty. Gen., 503.) Accordingly, in such cases the chief clerk of the bureau becomes acting chief thereof in case of the latter's absence or sickness, unless otherwise directed by the President inider section 179, Revised Statutes. (File 22724-14, Dec. 17, 1909.) In certain offices of the Navy Depart- ment, as, for example, the office of the Judge Advocate General, when there was neither an "assistant" nor "chief clerk" specifically pro- vided for by law, the Secretary of the Navy designated officers of the Navy or Marine Corps on duty in the office to perform the duty of the head of the office in the latter's absence. (File 22724-26.) See note to section 179, Revised Statutes. As to vacancy in the office of Attorney Gen- eral, or his absence or sickness, see sec- tion 347, Revised Statutes. The Commanding General of the Army or the chief of any military bureau of the War De- partment may be assigned to perform the duties of the Secretary of War, under this section. (Act Aug. 5,' 1882; 22 Stat., 238.) [It had previously been held by the Attor- ney General that such assignment could not be made, because of a law forbidding officers of the Army to hold any civil office, either by election or appointment. (14 Op, Atty. Gen., 200.)] In the absence of the Secretary and Assistant Secretary of the Navy, and the Chief of Naval Operations, the President has directed that, "until further orders," the duties of the Secretary of the Navy shall be per- formed by the following designated persons, in the order named: The Chief of the Bureaii of Navigation ; in his absence, the Chief of the Bu- reau of Ordnance; and in the absence of those two, the Chief of the Bureau of Engineering. (File 1159-765, Bu. Nav.; Navy Regs., 1920, art. 392, as amended; see also file 22724-40, Apr. 24, 1919.) By act of March 3, 1915 (38 Stat., 929), the Chief of Naval Operations "shall be next in succession to act as Secretary of the Navy" during the temporary absence of the Secretary and the Assistant Secretary. Authority of Acting Secretary. — It is clear that, in the absence of the Secretary, the authoi'ity with which he is invested can be ex- ercised by the officer who, under this section, becomes for the time Acting Secretary. (Ryan V. U. S., 136 U. S., 81; Shillito v. McClung, 51 Fed. Rep., 871; 20 Comp. Dec, 11. See note to sec. 177, R. S.) "Death, resignation, absence, or sick- ness." — The word "death" requires no defi- nition, and the word "sickness" has received none under this law. As to the word ' ' absence " the decisions are not harmonious. The Attor- ney General's opinions are both ways upon the question whether a vacancy caused by retire- ment is due to "absence," the later opinions 214 Executive Departments. Pt. 2. REVISED STATUTES. Sec. 179. holdiBg that it is not. An interruption of busi- ness caused by suspension of an officer is due to absence, according to the Attorney General, although Congress, in section 1768, Revised Statutes (now repealed), made specific provi- sion for such cases, so that they were not gov- erned by section 179, Revised Statutes. The cases on this subject are as follows: A vacancy canned by the retirement of the Paymaster General of the Army may be tempo- rarily filled Tuider this section. It may well be said that in the eye of the law a retired officer is "absent," he being incapable of rendering the service required. If tliis construction maj^ not be given to the act, it is clearly casus omissus [a case which is not provided for]". There would in that event be no power to provide for the duties of the office ad interim. (19 Op. Atty. Gen., 500.) In a later opinion, the Attorney General held that no pro^'ision is made by this section for filling a vacancy caused by retirement, and that, upon the retirement of the Chief of the Bureau of Steam Engineering in the Navy De- partment, the President was not authorized to designate the Chief of the Bureau of Construc- tion and Repair as Acting Chief of the Bureau of Steam Engineering; that Congress had made no p^o^•ision for the temporary discharge of his duties, and accordingly the Bureau of Steam Engineering must remain without a head imtil the place should be filled by new appomtment pursuant to sections 421 and 424, Revised Statutes; that "absence" implies a temporary state of being away from the office and a pos- sibility of returning, which is entirely incon- sistent with the idea of retirement for ph^-sical incapacity, which is a permanent condition. (27 Op. Atty. Gen., 344.) In this later opinion no reference is made to the former opinion with which it is in conflict and which was apparently overlooked . As to inherent power of the Presi- dent in such cases, see note to sec. 177, R. S.) Again, the Attorney General held that, aside from the question v\-hether the Marine Corps can be regarded as a bureau of the Navy Depart- ment, sections 177, 179, and 180, Revised Statutes, hav? no application in the case of the retirement of the Commandant of the Marine Corps on accoimt of age, as the vacancy in such case does not result from "death, resignation, absence, or sickness" of the incumbent. (28 Op. Atty. Gen., 487.) In case of the suspension of an officer during a recess of the Senate, the President was authorized, imder section 1768, Revised Stat- utes (now repealed), to designate "some suit- able person," to perform the duties of the sus- pended officer until the end of the next session of the Senate. The suspension of an officer did not create a vacancy, as the suspended officer continued to hold the office, although not enti- tled to pay under section 1768, Revised Stat- utes. The word "suspended " imports that the person suspended is still the incumbent of the office; that the interruption of his performance of its duties is temporary and provisional. Temporary designation of an acting officer in this case was properly made under section 1768, Revised Statutes. (13 Op. Atty. Gen., 512.) The Judge Advocate General of the Army was suspended from rank and duty pursuant to sen- tence of a general court-martial. (Swaim v. U. S., 165 U. S., 554.) The Secretary of War, July 25, 1884, by direction of the President, des- ignated the senior Assistant Judge Advocate General to ' ' take charge of the office of the Judge Advocate General and perform his duties" dur- ing the suspension of the Judge Advocate Gen- eral. Under this order the Assistant Judge Advocate General became "Acting Judge Ad- vocate General of the Army " from July 25, 1884, toJanuarj'3, 1895. (See Dig., J. A. G., Army, 1912, p. 4.) The Attorney General held that "the order assigning Col. I.ieber to duty as Act- ing Judge Advocate General was made in pur- suance of section 179 of the Revised Statutes," and that as such Acting JudgeAdvocate General he was qualified to act as a member of the Board of Commissioners of the Soldiers' Home, imder the law which provided that said board should include in its membership "the Judge Advo- cate General." (20 Op. Atty. Gen., 483.) "Resignation'^ of an office implies the con- sent of the incumbent to the giving up of the office and does not include the compulsory re- tirement of an officer by reason of disability to perform the duties of the office. (27 Op. Atty. Gen., 337.) The words "any other officer in either Department," apply only to an officer who holds a position in the Department to which he has been appointed by the President by and with the advice and consent of the Senate. Ac- cordingly, these words do not embrace an offi- cer of the Navy detailed to duty in the Navy Department, because such officer, although ap- pointed to his grade in the Navy by and with the advice and consent of the Senate, does not hold any office in the department to which he has been so appointed . Such an officer can not, therefore, be assigned by the President to per- form the duties of the Secretary of the Navy or the chief of a biu-eau in the Navy Department during the temporary absence of the officials mentioned. (28 Op. Atty. Gen., 95.) See note to section 178, Revised Statutes. The holder of an office vacates it by the acceptance of another iucompatible office. He does not vacate it by temporarily performing the duties of another office, when such tempo- rarv performance is permitted by law. (13 Op. Atty. Gen., 512. But see 14 Op. Atty. Gen. ,200, holding that the Commanding General of the Army could not, under laws then in force, act as Secretary of War without vacating his com- mission.) Power of Secretary to perform duties of subordinate. — In any case where a vacancy exists in a subordinate position under the Secre- tary of the Navy, the Secretary has the power to perform the duties of said position until the vacancy is filled. In such a case the Secretary must sign all papers in person, and can not dele- gate general authority to another to perform the duties of the office and sign papers "By direc- tion of the Secretary of the Navy." So held with reference to vacancy existing in the posi- tion of Commandant of the Marine Corps. (28 Op. Atty. Gen., 487. Compare Williams Eng. and Cont. Co. v. U. S., 55 Ct. Cls., 349, noted under sec. 419, R. S.) 215 Sec. 181. Pt.2. REVISED STATUTES. Executive Departments. Sec. 180. [Temporary appointments limited to thirty days.] A vacancy occasioned by death or resi»,aiation must not be temporarily filled under the three preceding sections for a longer period than thirty days. — (23 July, 1868, c. 227, s. 3, V. 15, p. 1G8.) This section was amended to read as above by act of February 6, 1891, section 91 (26 Stat. 733), which act substituted the word "thirty" for the word "ten" which appeared in the original section. President can not make second designa- tion on expiration of first. — In a case in which tlie Secretary of War was designated by the President to act as Secretary of the Navy under the provisions of sections 177-180, Re- vised Statutes, it was held that upon the expi- ration of the period fixed by this section it was not in the power of the President to designate another officer or the same officer to act for an additional period; that when the vacancy was once temporarily filled for the statutory period the power conferred by the statute is exhausted, and the President is remitted to his constitu- tional power of appointment; and that no such appointment having been made, "there is and can be no person authorized by designation to sign requisitions upon the Treasury Department on account of Navy payments as Acting Secre- tarv of the Navy.'" (16 Op. Atty. Gen., 596; affirmed 17 Op. Atty. Gen., 530, 18 Op. Atty. Gen., 58.) Purpose of section. — The temporary term authorized by sections 178 and 180, either by mere operation of the statute or by action of the President, is for no longer period than that limited by this section. The theory seems to be, and very properly, that the department has no more than a sufficiency of officers to transact the public business properly; and therefore, that in case of death or resignation this normal equipment is to be restored within the brief period named. (18 Op. Atty. Gen. ,50.) Computed from date of President's ac- tion. — The limitation imposed by this section upon the temporary filling of vacancies occa- sioned by death or resignation is to be com- puted from the date of the President's action. Where the officer appointed to act performed the duties of the vacant office prior to his des- ignation by the President, he was not acting under authority of sections 178-180, Revised Statutes, and such period during which he was acting without authority of these sections is not to be counted in computing the time during which his temporary appointment by the Presi- dent has force. [In this case the officer was not the "assistant or deputy," and therefore did not succeed to the vacancy by operation of section 178, Revised Statutes.] (15 Op. Atty. Gen., 457.) Vacancy can not be filled by operation of law and then by designation of President in excess of 30 days. — Where an officer succeeds to a vacancy by operation of section 177 or 178, Re\dsed Statutes, and performs the duties of the vacant office during the full period prescribed by this section, the President can not thereafter designate the same or a different officer to perform the duties of the vacant office during an additional period of 30 days, under authority of section 179, Revised Statutes; but the total period for which the vacancy can be temporarily filled under these sections, either by operation of. law or by designation of the President, is 30 days. The legislative purpose was that a vacancy caused by death or resigna- tion shall be permanently filled by constitu- tional appointment within 30 days. It may be tliat the action of an assistant after the expira- tion of the statutory period would not be invalid, being the action of an officer de facto; but the statute, even if directory, is no less obligatory upon those called upon to act under it than if mandatory, although the legal effect of action or nonaction under a directory stat- ute may be very different from the effect under a mandatory statute. (20 Op. Atty. Gen., 8, reversing 17 Op. Atty. Gen., 535.) [Note: In the case of a "mandatory" statute, all acts done in violation of its terms are absolutely null and void; while in the case of a "direc- tory" statute, acts performed contrary to its terms may be valid, although the officer guilty of violating the statute may otherwise be held responsible therefor. With reference to direc- tory statutes, it was said by Mr. Justice Field, in French v. Edwards, 13 Wall., 511: "There are undoubtedly many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them which do not limit their power or render its exercise in dis. regard of the requisitions ineffectual. Such generally are regulations designed to secure order, system, and dispatch in proceedings, and by a disregard of which the rights of parties interested can not be injuriously affected."] Vacancy occurring during recess of the Senate. — The limitation contained in this sec- tion applies only to temporary appointments made while the Senate is in session. It appears from an examination of the Journals of Congress that the Senate was in session when the vacan- cies referred to in Mr. Devens's opinions occurred . (15 Op. Atty. Gen., 458; 16 Op. Atty. Gen., 596), and presumably in the case presented to Mr. Brewster (17 Op. Atty. Gen., 530)._ The ab- sence of any reference in those opinions to the excepting clause of section 181, Revised Stat- utes, would seem to place it entirely beyond doubt that the sections referred to were not being construed with reference to vacancies occurring during a recess of the Senate. In the latter case the temporary appointment, desig- nation, or assignment is not limited by law to any particular period. (25 Op. Atty. Gen., 258. See note to sec. 181, R. S.) Sec. 181. [Restriction on temporary appointments.] No temporary appomt- ment, designation, or assignment of one officer to perform the duties of another, in the cases covered by sections one hundred and seventy-seven and one hun- 216 Executive Departments. Ft. 2. REVISED STATUTES. Sec. 183. dred and seventy-eight, shall be made otherwise than as provided by those sections, except to fill a vacancy happening durmg a recess of the Senate. — (23 July, 1868, c. 227, s. 2, v. 15, p. 168.) "The President shall have power to fill up all vacancies that may happen during the re- cess of the Senate, by granting commissions which shall expire at the end of their next session." (Const., Art. II, sec. 2, clause 3.) Senate temporarily adjourned. — It was held by the Court of Claims, :May 26, 1884, that there was "no doubt " that a vacancy occurring while the Senate was temporarily adjourned could be and was legally filled by appointment of the President in accordance with the above pro\dsion of the Constitution and that the ap- pointee legally held the oflice until he was noti- fied of his refection by the Senate at its next regular session established by law, which began on the first Monday of the following December. (Gould V. U. S., 19 Ct. Cls., 593, 595.) The At- torney General thereafter, December 24, 1901, expressly dissented from the Court of Claims decision, and advised the President that a vacancy occurriag during a temporary adjourn- ment of the Senate could not be filled by him as a "recess" appointment, but that such ap- pointments could be made only when the Senate adjourned sine die. C23 Op. Atty. Gen., 599; affirmed 29 Op. Attv. Gen., 602.; but see 33 Op. Atty. Gen., 20.) A temporary appointment during a re- cess of the Senate need not be made in any prescribed form. A communication from the Secretary of War informing the recipient that he has been appointed an officer of the Army by the President is sufficient, and answers the purpose of a commission if a commission is necessary. (O'Shea v. U. S., 28 Ct. Cls., 392.) The President has the right under the Constitution, and impliedly under section 181, Revised Statutes, to make a temporary appointment, designation, or assignment of one officer to perform the duties of another in the Sec. 182. [Extra compensation disallowed.] An officer performing the duties of another office, during a vacancy, as authorized by sections one hundred and seventy-seven, one hundred and seventy-eight, and one hundred and seventy-nine, is not by reason thereof entitled to any other compensation than that attached to his proper office. — (23 July, 1868, c. 227, s. 3, v. 15, p. 168.) case of a vacancy caused by death, disabihty, or otherwise during the recess of the Senate, and such temporary appointment, designation, or assignment is not limited by law to any par- ticular period. The excepting clause in sec- tion 181 makes it clear that Congress only in- tended by the provisions in question to restrict the power of the President temporarily to ap- point, designate, or assign one officer to perform the duties of another in the case of vacancies happening while the Senate was in session, the reason for which is manifest, and to leave un- restricted not only the President's constitu- tional right to fill vacancies happening during a recess of the Senate by granting commissions which shall expire at the end of the next session, but his fundamental right as Chief Executive to make such a temporary appointment, desig- nation, or assignment of one officer to perform the duties of another whenever the administra- tion of the Government requires it. There can be no question as to the existence of such right. It could not have been the purpose of the Con- stitution to compel the President to act imme- diately upon the occurrence of the vacancy. That would frequently be impossible, and if such were the rule, and no other officer could act until a successor was appointed, the Govern- ment would be menaced with a serious inter- ruption of its administration. The opinions of Attorneys General Devens and Brewster (15 Op. Atty. Gen., 458; 16 Op. Atty. Gen., 596; 17 Op. Atty. Gen., 530; noted under sec. 180, R. S.) were not rendered with reference to vacancies occurring during a recess of the Senate. (25 Op. Atty. Gen., 258.) For other decisions see note to Constitu- tion, Article II, section 2, clause 3, and to sec- tion 1381, Re\dsed Statutes. The prohibition in this section against additional compensation was designed to be general and to apply to ever\' officer performing the duties of an office temporarily vacant, whether the vacancy was caused by death, resignation, absence, or sickness, and whether such duties devolved upon him by force of the statute or by designation of the President, and such officer is not entitled to any salarj- other than that which is annexed to the office he holds. (13 Op. Atty. Gen., 8; 13 Op. Atty. Gen., 512, 514.) Sec. 183. [Oaths, when administered by officers, etc.] Any officer or clerk of any of the departments lawfulh' detailed to investigate frauds on, or attempts to defraud, the Government, or any irregularity or misconduct of any officer or agent of the United States, and any officer of the Army, Navy, Marine Corps or Revenue-Cutter Service, detailed to conduct an investigation, and the recorder, and if there be none the presiding officer, of any military, naval, or 217 Sec. 183. rt.2. REVISED STATUTES. Executive Departments. Revenue-Cutter Service board appointed for such purpose, shall have authority to administer an oath to any witness attending to testify or depose in the course of such investigation. This section was amended and reenacted to read as above by act of P'ebruary 13, 1911 (36 Stat., 898), which act also superseded the act of March 2, 1901 (31 Stat., 951). Ae originally enacted this section provided as follows: "Sec. 183. xVny officer or clerk of any of the departments lawfully detailed to investigate frauds or attempt to defraud on the Government, or any irregularity or misconduct of any officer or agent of the United States, shall have authority to ad- minister an oath to any witness attending to testify or depose in the course of such investigation."— (10 Apr., 1869, Res. No. 15, 8. 2, v. 16, p. 55; 7 Mar., 1870, c. 23, v. 16, p. 75.) The "Revenue Cutter Service" is now the "Coast Guard." (Act Jan. 28, 1915, 38 Stat., 800.) The solicitor in the ofla.ce of the Judge Advocate General, Navy Department, was detailed by the Secretary of the Navy, May 2, 1907 (file 5421-11), to investigate reported dis- crimination against marines in uniform visiting the Library of Congress, and was authorized to administer oaths to witnesses under this section. See also file 26263. A lieutenant commander in the Navy was detailed by the Secretary of the NaA-y, April 14, 1914, to investigate and ascertain whether any officer or person in the naval serv- ice or connected with the Navy Department had been guilty of any irregularity or miscon- duct in originating or circulating reports or rumors by means of the public press concerning the relations between an officer of the Navy and Government contractors, and was authorized to administer oaths to witnesses under this section . (File 26251-8827:5; see also 16711-3, July 12, 1911.) Boards of investigation. — It has never been decided that boards of investigation in the Navy have general authority to administer oaths to witnesses in every case. So far as prec- edent goes, it supports' the conclusion that such boards are authorized to swear witnesses only when the subject of the investigation re- lates to "frauds on, or attempts to defraud, the Government or any irregularity or misconduct of any officer or agent of the United States." (File 3980-842, Sept. 29, 1913.) The Navy Regulations, 1913, provide that boards of investigation, "although they may collect material information froin apparent or known facts, or from written evidence which they may possess, and may record the declara- tions of persons examined before thein, will not take testimony under oath except in im- portant cases in which the order convening the board expressly states that such board js authorized to administer oaths to witnesses in accordance with " the above law. (R-316 (3) and (4).) Other laws authorizing oaths to be ad- ministered by persons in the naval service or connected with the Navy Department, are as followt; : For purposes of naval administration. — Act of March 4, 1917 (39 Stat., 1171), amending the act of March 3, 1901 (31 Stat., 1086), which amended the act of January 25, 1895 (28 Stat., 639), authorizes certain officers of the Navy, Marine Corps, Naval Reserve Force, and Marine Corps Reserve, to administer oaths ' ' for the pur- poses of the administration of naval justice and for other purposes of naval administration." This law authorizesany of the officers designated therein to administer an oath for any purpose of naval administration (file 26806-94, Nov. 23, 1912; 19037-45, May 26, 1914); but it does not authorize such officers to administer an oath for other purposes, such as in matters relating to the private business of either officers or enlisted men. (File 19037-27, Mar. 30, 1912.) Income tax returns. — The Secretary' of the Treasury' authorized annual returns of persons in the naval sen,dce under the income tax pro- \Tsions of the act October 3, 1913 (38 Stat., 166-181), and amendments thereto, to be exe- cuted before any official authorized to admin- ister oaths for the purposes of that service. (Art. 406, Treas. Regs., 1922; see also U. S. v. Bailey, 9 Pet., 238; 19 Op. Atty. Gen., 401). Accounts for travel, etc. — The sundry civil appropriation act, August 24, 1912, section 8 (37 Stat., 487), authorizes certain officers of the Government, including "chief clerks of the various executive departments and bureaus or clerks designated by them for the purpose," to administer oaths to accounts for travel or other expenses against the United States. See also 19 Op. Atty. Gen., 401. Oaths of office.— The act of August 29, 1890 (26 Stat., 371),authorizes and directs chief clerks of the several executive departments and of the various bureaus and offices thereof in Washing- ton, to administer oaths of office to employees on appointment or promotion. (See also sec. 392, R. S., as amended.) The Articles for the Government of the Navy authorize oaths to be administered by the following officers: Judges advocate and presiding officers of general courts-martial (arts. 40, 41); judges advocate and presiding officers of courts of inquiry (art. 57); recorders and senior members of summarv courts-martial (arts. 28 and 29). (Sec. 1624, R. S.) Deck courts are authorized to administer oaths by act of February 16, 1909, section 2 (35 Stat., 621). Naval Examining Boards are authorized to administer oaths by section 1499, Revised Statutes. Naval retiring boards have this authority under sections 1449 and 1450, Revised Statutes. Consular powers may be exercised by offi- cers of the Navy in relation to mariners of the United States, under conditions prescribed by section 1433, Revised Statutes. 218 Executive Departments. Ft. 2. REVISED STATUTES. Sec. 184. Acknowledgment of deeds and other in- to be verified by the certificate of thegoverilor struments affecting lands situate in the District or acting governor. (Act June 28, 1906,' 34 of Columbia or any Territory, may be taken in Stat., 552.) Guam and Samoa before any notary public or On general subject of administration of judge appointed therein by proper authority, oaths by officers of the Navy, see file 19037-45, or by any officer therein who has ex officio the May 26, 1914. powers of a notary; such acknowledgments Sec. 184. [Claims pending in Departments — Subpoenas to witnesses.] Any- head of a Department or Bureau in which a claim against the United States is properly pending may apply to any judge or clerk of any court of the United States, in any State, District, or Territory, to issue a subpoena for a witness being within the jurisdiction of such court, to appear at a time and place in the subpoena stated, before any officer authorized to take depositions to be used in the courts of the United States, there to give full and true answers to such written interrogatories and cross-interrogatories as may be submitted with the apphcation, or to be orally examined and cross-examined upon the subject of such claim.— (14 Feb., 1871, c. 51, s. 1, v. 16, p. 412.) Thissection was modified by actof July 25, 1882, section 3 (22 Stat., 175), relative to exami- nation of witnesses in pension claims; which act, however, related to Pension Office only. Constitutionality. — In re McLean (37 Fed. Rep., 648) the court held that Congress is not authorized to permit the judicial power to be invoked in aid of an examination pending in an executive de])artment, and accordingly that legislation of this kind was null and would not be enforced. In so holding the court cited and followed In re Railway Commission (32 Fed. Rep., 241). The McLean case was approved and followed in In re Interstate Commerce Com- mission (53 Fed. Rep., 476), which involved a similar question; but all of these cases were reversed in Commerce Commissions. Brimson, decided by the Supreme Court (154 U. S., 447). Statutes of this class were expressly held to be constitutional in In re Gross (78 Fed. Rep., 107), in which case the court cited and applied the decision of the Supreme Court in Brim- son's case and dissented from McLean's case, both above cited. (See Haybum's case, 2 Ball., 409.) Procedure. — This section does not author- ize ah ex parte procedure. Witnesses are to be subjected not only to examination but to cross- examination. Claimants are therefore entitled to have notice of the time and place of the ex- amination and may be present to cross-examine the witnesses of the Government if they choose to do so. Their attorney may represent them at the examination. A witness examined by the Government is also entitled to consult counsel. The examination is not before a court which may protect the witness in liis constitutional right to refuse to answer incriminating ques- tions. The possibility of converting these ad- ministrative examinations into very obnoxious inquisitorial proceedings is apparent. The pro- ceeding is not a secret one, like an inquest by a grand jury. So long as counsel for a witness conducts himself with propriety and does not interfere with the examination he has a right to be present. If in the course of the examination any questions are propounded to a witness the answers to which will tend to incriminate liim, he may refuse to answer them. Such refusal, however, must be claimed by the witness as his personal privilege and can not be claimed for him by his counsel. The examiner has no power or right to extort a confession from a wit- ness, even though there is no inten tion of prose- cuting the witness therefor. (In re O'Shea, 166 Fed. Rep., 180.) Protection of witness. — The courts can not be expected to neglect the duty which belongs to them of watching against any stealthy en- croachment upon the constitutional rights of the citizen; "and the least that they can require of these examiners, so armed with such dangerous power, and invested with such tempting oppor- tunities to invade the constitutional guaranty, is that they shall conduct their examinations in such a manner that the citizen shall be fully warned of his constitutional right, and offered an opportunity to assert it by a refusal to answer; and where the witness is ignorant and helpless, and such warning is neglected, protection can be afforded to him by the courts in no other way than by refusing to give any effect to the exami- nation by way of any criminal prosecution to support it and its object. * * * Until Con- gress shall set about improving the system of inquisition it is not to be expected that the courts shall aid its usefulness at the expense of the constitutional i)rotection of every citizen. All that we now decide to be necessary to afford the protection of the Constitution to this defend- ant is that, unless a witness manifestly ignorant of his privilege is informed of it by the examiner so that he may protect himself, consult counsel if he desires, and assert his right to remain silent, the examination can not be used in evi- dence against him, even on an indictment for false swearing in the progress of the examination itseh." (U.S.i'.Bell,8lFed.Rep.,849.) [This decision related particularly to an examination conducted under the pension act of 1882, above cited.] Scope of section. — It is noticeable that this section provides only for investigations "upon the subject " of the claims. It is clear that Con- .54641°— 22- 15 219 Sec. 188. Pt.2. REVISED STATUTES. Executive Departments, press intended to limit the scope of the investi- gations, and that an examination wliich would not be " upon the subject " of a claim would not be within the pundew of this section. Accord- ingly, the application for a subpoena should be drawn with reasonable certainty and precision, so that it should clearly appear iipon its face to be in accordance with the act, and that the cliiim in which the testimony is required should be reasonably identified. Where this was not done, held that the court will notrequire witness who refuses to answer questions to show cause why he should not ans%ver the interrogatories or be adjudged in contempt of court. (In re Gross, 78 Fed. Rep., 107.) Power to require oaths. — "WTienever the law imposes upon an officer the duty to exam- ine, adjust, and settle claims against the Govern- ment, it gives him authority to 'require' that those claims shall be established, or supported at least, by the oaths of witnesses." When power is given to the examining officer to ad- minister oaths there must be the implied power Sec. 185. [Witnesses' fees.] Witnesses subpoenaed pursuant to the preced- ing section shall be allowed the same compensation as is allowed witnesses in the courts of the United States.— (14 Feb., 1871, c. 51, s. 1, v. 16, p. 412.) to require them to be taken. If the needed tes- timony can be had by affidavits or depositions without the process of the courts, of course such process need not be resorted to. (14 Op. Atty. Gen., 419, 420, citing U. S. v. Bailey (9 Pet., 238, 253) as to implied power to require testimony to be submitted under oath .) The original act up- on which section 184, Revised .Statutes, is based expressly provided that any witness attending in accordance with said act who should be guilty of intentional false swearing in his testimony should be deemed guilty of the crime of perjury. Punishment for perjury is now provided for by section 12r), Criminal Code, act of March 4, 1909 (35 Stat., 1111). With reference to the original statute, the Attorney General, in the opinion cited, said: "This statute assumes that there is authority in the heads of departments and bu- reaus to require oaths in cases of claims against the Government, and gives them very effective process for the exercise of that authority." (14 Op. Atty. Gen., 420.) and paid by the United States marshal of the district on the certificate or order of the United States commissioner before whom the examination was conducted; while the fees of the commissioner should be paid as in ordinary course, on settling his accounts at the Treasury from the appropriation ' ' for fees of United States commissioners," belonging to the judiciary fund. (17 Op. Atty. Gen., 247.) Fees of witnesses before naval courts-martial and courts of inquiry are provided for by act of February 16, 1909, section 12 (35 Stat., 622). See note to section 848, Revised Statutes. Appropriation available. — In the absence of a special provision for defraying the ex- penses of witnesses, they may properly be allowed out of the judiciary fund, which makes appropriation "for fees of witnesses," Sec. 186. [Compelling testimony.] If any witness, after being duly served with such subpoena, neglects or refuses to appear, or, appearing, refuses to testify, the judge of the district in which the subpoena issued may proceed, upon proper process, to enforce obedience to the subpoena, or to punish the disobedience, in like manner as any court of the United States may do in case of process of sub- poena ad testificandum issued by such court. — (14 Feb., 1871, c. 51, s. l,v. 16, p. 412.) See note of decisions under section 184, Revised Statutes. Sec. 187. [Legal assistance in connection with claims.] Whenever any head of a Department or Bureau having made application pursuant to section one hundred and eighty-four, for a subpoena to procure the attendance of a witness to be examined, is of opinion that the interests of the United States require the attendance of counsel at the examination, or require legal investigation of any claim pending in his Department or Bureau, he shall give notice thereof to the Attorney-General, and of all facts necessary to enable the Attorney-General to furnish proper professional service in attending such examination, or making such investigation, and it shall be the duty of the Attorney-General to provide for such service.— (14 Feb., 1871, c. 51, s. 3, v. 16, p. 412.) A similar provision is contained in section 364, Revised Statutes. Sec. 188. [Suits in Court of Claims — Evidence furnished by Departments.] In all suits brought against the United States in the Court of Claims founded 220 Executive Departments. Pt.2. REVISED STATUTES. Sec. 189. upon any contract, agreement, or transaction with any Department, or any Bureau, officer, or agent of a Department, or where the matter or thing on which the claim is based has been passed upon and decided by any Department, Bureau, or officer authorized to adjust it, the Attorney-General shall transmit to such Department, Bureau, or officer, a printed copy of the petition filed by the claimant, with a request that the Department, Bureau, or officer, shall fur- nish to the Attorney-General all facts, circumstances, and evidence touching the claim in the possession or knowledge of the Department, Bureau, or officer. Such Department, Bureau, or officer shall, without delay, and within a reason- able time, furnish the Attorney-General wdth a full statement, in writing, of all such facts, information, and proofs. The statement shall contain a reference to or description of all such official documents or papers, if any, as may furnish proof of facts referred to in it, or may be necessary and proper for the defense of the United States against the claim, mentioning the Department, office, or place where the same is kept or may be procured. If the claim has been passed upon and decided by the Department, Bureau, or officer, the statement shall succinctly state the reasons and principles upon which such decision was based. In all cases where such decision was founded upon any act of Congress, or upon any section or clause of such act, the same shall be cited specifically; and if any previous interpretation or construction has been given to such act, section, or clause by the Department, Bureau, or officer, the same shall be set forth suc- cinctly in the statement, and a copy of the opinion filed, if any, shaU be annexed to it. Where any decision in the case has been based upon any regulation of a Department, or where such regulation has, in the opinion of the Department, Bureau, or officer transmitting such statement, any bearing upon the claim in suit, the same shall be distinctly quoted at length in the statement. But where more than one case, or a class of cases, is pending, the defense to which rests upon the same facts, circumstances, and proofs, the Department, Bureau, or officer shaU only be required to certify and transmit one statement of the same,, and such statement shall be held to apply to all such cases, as if made out, certi- fied, and transmitted in each case respectively. — (25 June, 1868, c. 71, s. 6, v» 15, p. 76.) See Title VIII, Revised Statutes, " Depart- ment of Justice." Confidential information. — By act of Feb- ruary 24, 1855, embodied in section 1076, Re- vised Statutes, the Court of Claims was au- thorized to "call upon any of the departments for any information or papers it may deem nec- essary * * * Provided, That the head of no department shall answer any call for informa- tion or papers if in his opinion it would be injurious to the pubUc interest." Under this provision, it is clear that the head of a depart- ment is not at liberty to furnish to the court information or papers when to do so would in his opinion be injurious to the public interest, and a return setting forth such opinion would in all such cases be a sufficient answer to the rule. (13 0p.Atty.Gen.,539.) For other cases, see note to sections 161, 418, and 871, Re\dsed Statutes. Public policy forbids the maintenance of any suit requiring the disclosure of confiden- tial matters. (Totten v. U. S., 92 U. S., 105.) Sec. 189. [Employment of attorneys or counsel.] No head of a Department shall employ attorneys or counsel at the expense of the United States; but when in need of counsel or advice, shall call upon the Department of Justice, the officers of which shall attend to the same. — (22 June, 1870, c. 150, s. 17, v. 16, p. 164.) the former practice, which permitted heads of departments to employ counsel without ap- plying to the Attorney General. (19 Op. Atty. Gen., 330; 21 Op. Atty. Gen., 195.) See Title VIII, Revised Statutes, " Depart- ment of Justice." Purpose of enactment. — This law was passed to correct abuses which existed under 221 Sec. 189. Pt. 2. REVISED STATUTES. Executive Departments. The provisions of law concerning the Department of Justice (see Title VllI, 11. S.) "are too conclusive and too specific to leave any doubt thatConj^ress intended to gather into the Department of Justice, under the super- vision and control of the Attorney General, all the litiKation and all the law business in which the United States are interested, and which previously had been scattered among different public olHcers, departments, and branches of the Government, and to break up the practice of frequently emplojing unofficial attornevs for the public service." (Perry v. U. S., 28 Ct. Cls., 491.) Employment of district attorneys. — By anactapproved February 26, 1853(10Stat., 161), it was provided that, for the services of counsel rendered at the request of a head of a depart- ment, the compensation should be such sum as might be stipulated or agreed on. This pro- vision recognized the authority of heads of departments to employ counsel, and under it they employed district attorneys to examine titles and prepare abstracts thereof for submis- sion to the Attorney General, and allowed them special compensation therefor. But the act of 1853 was repealed by a clause in the act of 1870, now embodied in section 189, Revised Statutes. That repeal only altered the mode of employ- ment; that is to say, it in effect invested the Attorney General with sole authority thereafter to employ district attorneys where the per- formance of such services by him is called for. (19 Op. Atty. Gen., 64.) Before the passage of the act on which section 189, Revised Statutes, is based, the heads of the several departments were accustomed to employ district attorneys to examine into the titles to lands sought to be purchased by the United States. Under such employment the district attorneys performing the services received compensation for such services over and above the usual compensation allowed by law for district attorneys. Since the passage of this law such services have been required of dis- trict attorneys by the Department of Justice. (Weed i;_. U.S., 82 Fed. Rep., 414, 419.) In this connection see section 355, Revised Statutes. The Secretary of War has no authority without the consent of the Attorney General to employ counsel to appear in court in certain habeas corpus cases (13 Op. Atty. Gen., 583); nor to employ a patent attorney to prosecute an application for a patent (10 Comp. Dec, 686). Formerly it was competent for the head of any of the executive departments to employ a district attorney or other counsel in connection with proceedings in a State court in which the United States was interested; and such district attorney or other counsel was entitled to receive for his services such sum as might be agreed upon. But the authority of the various heads of departments thus to employ counsel at the expense of the United States was taken away by the law now embodied in sec- tion 189, Revised Statutes, and it was provided that this power should thereafter be exercised only by the Attorney General. (16 Op. Atty. Gen., 101.) As to proceedings in State courts, see section 367, Revised Statutes. Wliere Congress, in an appropriation act passed subsequent to the enactment of this section, authorized the head of a bureau in an executive dei)artmcnt ''to employ as many persons as he may deem necessary" for the purposes of said approi)riation, this did not carry with it authority for the head of the bureau or executive dei>artment to which it was at- tached to employ counsel; as the employment of counsel in executive departments is specifi- cally covered by sections 189, 362, and 363, Revised Statutes; and the general language of an appropriation can not be given such scope as to operate as a rejjeal, so far as a particular bureau is concerned, of legislation regulating the subject of employing counsel for the Gov- ernment — legislation which was intended to apply to all branches of the Government, which has remained in force for many years, and the want of which had led to some abuses. (19 Op. Atty. Gen., 330.) Duties of Comptroller of the Treas- ury. — In practice the Comptroller of the Treas- ury is asked, in form, for legal advice; La fact, what is desired is information as to his future action in a case, which may come before him for decision. Where, however, the Secretary of the Treasury asks the advice of the accoimt- ing officers upon legal questions which do not involve future action by them up6n questions of payments, the advice so rendered by the accounting officers is a purely voluntary matter, and to compensate them for such work would be a violation of section 189, Revised Statutes. (20 Op. Atty. Gen., 655, 657.) [The view that the opinions of the Comptroller upon legal ques- tions are purely extraofficial is no longer ten- able; by act of July 31, 1894 (28 Stat., 208), he is authorized to render an advance decision upon any question involving a payment. (22 Op. Atty. Gen., 581.) See note to section 236, Re- vised Statutes.] Judge advocate, naval court-martial. — According to the law regulating courts-martial, the judge advocate is the official prosecutor; and in cases arising in the Navy he is by cus- tom either a naval officer specially designated or a counselor at law employed for that purpose. If a naval officer, he receives no special compen- sation. If a counselor at law, it has been the custom to pay him as for a professional service. The law now embodied in seccion 189, Revised Statutes, prohibits the Secretary of any of the executive departments from employing attor- neys or counsel at the expense of the United States. Considering it settled that the desired services (judge advocate) are such as can be properly performed only by a naval officer or a counselor at law, the Attorney General holds that if, in the judgment of the Secretary of the Navy, the cases in hand should be conducted by a person of the latter description, the Secretary of the Navy is not at liberty to employ such counsel, but should call upon the Department of Justice which will furnish an officer for the service. (13 Op. Atty. Gen., 515; affirmed 14 Op. Atty. Gen., 13; see U. S. v. Mackenzie, 26 Fed. Gas., 1121.) In this connection, see note to section 362, Revised Statutes. Legal assistance for judge advocate. — Special counsel may be employed by the 222 Executive Departments. Pt. 2. REVISED STATUTES. Sec. 189. Attorney General at the request of the Secre- tary of the Navy to assist the judge advocate in a trial by court-martial; the compensation of such counsel (in the absence of other provi- sion) to be paid from the appropriation for contingent expenses of the Navy. Such coun- sel should be commissioned by the Attorney General under section 366, E,e\T.sed Statutes. (18 Op. Atty. Gen., 135.) The Secretary of the Navy is not author- ized by sections 3676 and 3681, Revised Stat- utes, to employ special counsel in his discretion, in connection with cases before naval courts- martial, without applying to the Attorney Gen- eral. (18 Op. Atty. Gen., 136. See file 26251- 10398:6, in which the Secretary of the Navy assigned the law clerk in the office of the Judge Advocate General as counsel to the judge advo- cate in the trial of a commissioned officer by court-martial ; and see Court of Inquiry Record, No. 4952, in which the solicitor in the office of the Judge Advocate General was assigned by the Secretary of the Navy as associate and as- sistant to the judge advocate.) A judge advocate need not be a profes- sional person. His qualifications must, of course, be of the sort required by members of the bar, but there is no law limiting choice of judge advocates or of their assistants, when needed, to that class. Although there is no statutory provision in . regard to naval judge advocates like that for those of the Army, to the effect that they shall belong to the Navy, yet in fact this is generally the case. So, also, assistants for judge advocates might be detailed from the same branch of service, or, indeed, specially intelligent persons might be selected from anv line of civil life. (18 Op. Atty. Gen., 137.) Counsel in foreign countries. — In view of section 189, Revised Statutes, the Secretary of the Nav>^ is not authorized to employ counsel in foreign countries to institute suit in behalf of the United States to recover for damages caused to a war vessel of the United States, but the case should be refen-ed to the Department of Justice, which is charged with the duty of determining when the United States shall sue, for what it shall sue, and that such suits shall be brought in appropriate cases. (21 Op. Atty. Gen., 195, citing U. S. v. San Jacinto Tin Co., 125 U. S., 273, 279, 280; and In re Neagle, 135 U.S.,65, 67;seealso2Comp. Dec, 340). The right and duty of the commander of a naval vessel, or of the Secretary of the Navy, to employ in an emergency counsel in a foreign country, when necessary for the protection of such vessel and all that pertains to it, are not now decided, and would involve princi- ples other than those passed upon in de- termining the general question of employing counsel in a foreign country in behalf of the United States. Section 189,however, was passed to correct what was considered an abuse by tlie heads of departments of the power to employ counsel. Its terms are undoubtedly broad enough to cover any employment of counsel in cases like that now in question, although they have been so rare that they probably were not a moving cause of the enactment of the law. Congress, however, must have contemplated, inasmuch as ships of war are constantly on the high seas and in foreign ports, that questions of law would arise in respect to them in the administration of the Navy Department. However, no exception whatever is made of such cases in the law. (21 Op. Atty. Gen. , 195.) Wliile as the law stands at the present time it is doubtless within the pruvince of the Attor- ney General only to employ counsel in foreign coimtries to defend the United States against suit for collision by a naval vessel, the Attorney General has neither facilities for communicat- ing with the naval officers abroad, nor has he any method of ascertaining who would be the most desirable attorneys to employ, or by what particular method such employment should be made. The Attorney General, therefore, re- quested that the Secretary of the Navy act in his stead in arranging for the employment of counsel to defend a suit brought in the Supreme Court of Hongkong by o^^^lers of a Chinese jimk, Tung on Tai, against the master of the U . S . N . A . Alexander. (File 4729-1, Apr. 24, 1906.) If it was the intention of the Attorney Gen- eral that the Secretary of the Navy should act for him in selecting coxmsel, such employment to be approved by the Attorney General and the compensation of said counsel to be sti]m- lated by him as provided by section 363, Re- vised Statutes, counsel so employed would be entitled to such compensation on the certifi- cate of the Attorney General provided forin sec- tion 365, Revised Statutes. But such compen- sation is payable only from the appropriation for payment of assistants to United States district attorneys employed by the Attorney General to aid in special cases, which appropriation spe- cifically provides that it "shall be available also for the payment of foreign counsel employed by the Attorney General in special cases, and such counsel shall not be required to take oath of office in accordance with section 366, Revised Statutes of the United States." (33 Stat., 1207; see also act Aug. 24, 1912, 37 Stat., 465.) The employ- ment by the Secretary of the Na\'y , and payment from the appropriation for the Navy entitled "Pay, Miscellaneous," of coimsel to defend the master of the U. S. N. A. Alexander in the suit referred to would be in direct contravention of sections 189, 357, 363, and 365, Revised Statutes. In view of these provisions, the item in that ap- propriation, "cost of suits," can not properly be construed as authorizing the employment and payment of coimsel by the Navy Department. (Comp. Dec, June 5, 1906; file 4729-5.) If, as is understood to be the case, the fund appropriated to the Department of Justice for the payment of special counsel for the current fiscal year is exhausted, it may be that the ap- propriation for the next fiscal year may be ap- propriately drawn upon in a case in which the services of counsel, if now engaged, would actually be rendered in the next fiscal year. (Secretary of the Navy to Attorney General, June 7, 1906; file 4729-1, 5.) This suggestion was adopted, and upon completion of the services the Attorney General advised the Secretary of the Na\y that if the counsel em- ployed will make out and forward an account for"^his services in the case mentioned, from Julv 1 of the current year to the date of the 223 Sec. 190. Pt. 2. REVISED STATUTES. Executive Departments. conclusion of the case, the same will be ap- proved by the Department of Justice and for- warderiations nuule by Congress for that fiscal year, or involve the Govern- ment in any contract or other obligation for the future payment of money in excess of such appropriations unless such contractor obligation is authorized by law." (Sec. 367!), R. S., as amended by act Feb. 27, 1906, 34 Stat., 48; see also section 3732, R. S,, as amended by act of June 12, 1906, 34 Stat., 205.) Newspapers are not periodicals within the meaning of act of March 15, 1898, section 3 (30 Stat., 316), providing that thereafter periodicals for the use of any executive department at the seat of Government shall not be paid for from any appro])riation for contingent expenses or for any s])ecili(; or general purpose uidess spe- cifically authorized by the law granting the ap- ])roi)riation. (4 Comp. Dec, 694.) Purchase after advertisement. — The Navy Department desires that all newspapers and periodicals, both American and foreign, for the Naval Establishment, for use on shore, both in and outside the continental limits of the United States, except such as may be purchased by naval attaches, shall be purchased after ad- vertisement in the public press. (Circular, Oct. 6, 1914, file 12809-83.) Sec. 193. [Annual report of expenditures from contingent funds.] The head of each Department shall make an annual report to Congress, giving a detailed statement of the manner in which the contingent fund for his Department, and for the Bureaus and offices therein, has been expended, giving the names of every person to whom any portion thereof has been paid; and if for anything furnished, the quantity and price; and if for any service rendered, the nature of such service, and the time employed, and the particular occasion or cause, in brief, that rendered such service necessary; and the amount of all former appropriations in each case on hand, either in the Treasury or in the hands of any disbursing officer or agent. And he shall require of the disbursing officers, acting under his direction and authority, the return of precise and analytical statements and receipts for all the moneys which may have been from time to time during the next preceding year expended by them, and shall communicate the results of such returns and the sums total, annually, to Congress. — (26 Aug., 1842, c. 202, s. 20, v. 5, p. 527.) Shnilar provisions were contained in acts of June 20, 1874 (18 Stat., 96); March 3, 1875 (18 Stat., 355); August 15, 1876 (19 Stat., 156); March 3, 1877 (19 Stat., 306). _ _ For complete references to laws requiring re- ports to be made by Secretary of the Navy, see section 429, Revised Statutes, and note thereto. "All appropriations for specific, general, and contingent expenses of the Navy Depart- ment shall be under the control and ex- pended by direction of the Secretary of the Navy." (Sec. 3676, R. S.) "No moneys appropriated for contingent, in- cidental, or miscellaneous purposes shall be expended or paid for official or clerical compensation." (Sec. 3682, R. S.) No person shall be employed in any executive department or be paid from any appropria- tion made for contingent expenses, unless such employment is authorized and pay- ment therefor specifically provided in the law granting the appropriation. (Act Aug. 5, 1882, sec. 4, 22 Stat., 255.) No purchases shall be made from the contin- gent fund of any department, bureau, or office, except upon written order of the head of the department. (Sec. 3683. R. S.) Expenditures from contingent funds for news- papers, pamphlets, periodicals, or other books or prints, are limited by section 1779, Revised Statutes. (See note to sec. 192, R. S.) Expenditures from contingent funds for law books, books of reference, and periodicals, are prohibited, unless specifically author- ized by the appropriation. (Act Mar. 15, 1898, sec. 3, 30 Stat., 316.) Appropriations for contingent expenses must be apportioned by monthly or other allot- ments at the beginning of fiscal year, so as to prevent deficiency before end of year; and such apportionment must be adhered to, under penalty of summary dismissal and fine or imprisonment, except in case of extraordinary emergency. (Act Feb. 27, 1906, 34 Stat., 48.) Use of contingent funds is authorized for in- vestigations of title to land purchased for navv yards, public buildings, etc. (Sec. 355,' R. S.) Expenses of insane persons belonging to the Navy or Marine Corps may be paid from annual appropriation for naval service un- der head of contingent eniunerated. (Sec. 1551, R. S.) 226 Executive Departments. Ft. 2. REVISED STATUTES. Sec. 197. Sec. 194. [Report of clerks employed. Repealed.] This section read as follows: "Sec. 194. The head of each, department shall make an annual report to Congress of the names of the clerks and other persona that have been employed in his department and the offices thereof; stating the time that each clerk or other person was actually employed, and the Bums paid to each; also, whether they have been usefully employed; whether the services of any of them can be dispensed with without detriment to the public service, and whether the removal of any individuals, and the appoint- ment of others in their stead, is required for the better dispatch of business. " — (26 Aug., 1842, c. 202, s. 11, V. 5, p. 525.) It was repealed by act of March 2, 1895, sections (28 Stat., 808). The Secretary of the Navy is required to make annual report to Congress of civil- ians employed on clerical duty from ' 'Pay of the Navy," and other naval appropriations (act Jan. 30, 1885, 23 Stat., 295); and is required to make a similar report of the number and com- pensation of persons employed from "Increase of the Navy" and other general appropriations (act Apr. 17, 1900, 31 Stat., 117); also, a report of persons employed for technical services from ap- propriations "Equipment of Vessels," "Steam Machinery, " "Construction and Repair, "'"Ord- nance and Ordnance Stores, " and from appro- priations and allotments under the Bureau of Yards and Docks. (Act Mar. 4, 1913, 37 Stat., 768, 770, 771, and appropriation acts for subse- quent years.) Heads of departments are required to report to Congress employees detailed to other offices in accordance with section 166, Revised Statutes, as amended. (Act Mar. 2, 1895, sec. 7, 28 Stat., 808.) Also required to report number of employees in each bureau and office below a fair standard of efficiencv, and the salary of each. (Act Julv 11, 1890, sec. 2, 26 Stat., 268.^ For other reports required of the Secretary of the Navy, see section 429, Revised Statutes, and note. Sec. 195. [Time of making annual reports to Congress.] Except where a different time is expressly prescribed by law, the various annual reports re- quired to be submitted to Congress by the heads of Departments shall be made at the commencement of eacli regular session, and shall embrace the transac- tions of the preceding year. — (See all acts requiring reports.) For reports required to be made by the Secre- tary of Navy, see section 429, Revised Statutes, and note. Neglect or refusal of any officer to make any report within the time prescribed by law is punishable bv fine of not more than .?1,000. (Sec. 101, Criminal Code, act Mar. 4, 1909, 35 Stat., 1107.) Sec. 196. [Time of furnishing annual reports to printer.] The head of each Department, except the Department of Justice, shall furnish to the Congres- sional Printer copies of the docmnents usually accompanying his annual report, on or before the first day of November in each year, and a copy of his annual report on or before the third Monday of November in each year. — (25 June, 1864, c. 155, ss. 1, 3, v. 13, pp. 184, 5; 22 June, 1870, c. 150, s. 12, v. 16, p. 164.) The above section was amended by a clause contained in the sundrv ci\dl appropriation act of August 1, 1914 (38 Stat., 680), requir- ing that, during that fiscal year, copy be fur- nished to the Public Printer as follows: Copies of documents accompanying annual reports, on or before the 15th day of Oc- tober; copies of annual reports, on or before the 15th day of November; and complete revised proofs of accompan\-ing documents and annual reports, on the 10th and 20th days of November, respectively. (30 Op. Atty. Gen., 293.) This provision was re- f)eated in the sundry civil act for the fol- owing year, and was made permanent by act of July 1, 1916 (39 Stat., 336). which further requires that said reports and ac- companying documents be printed, made public and available for distribution with- in the first five days after the assembling of each regular session of Congress. Illustrations, maps, etc., are to be excluded from annual reports, except such as are nec- essary. (Act Aug. 30, 1890, 26 Stat., 411.) Reports are not to be distributed with "the compliments " of any officer of the Govern- ment. (Act Jan. 12, 1895, sec. 73, 28 Stat., 620; act Mar. 3, 1893, 27 Stat., 612; act Aug. 5, 1892, 27 Stat., 388.) Sec. 197. [Inventories of Department property.] The Secretary of State, the Secretary of the Treasuiy, the Secretary of the Interior, the Secretary of War, the Secretary of the Navy, the Postmaster-General, the Attorney-General, 227 Sec. 198. Pt. 2. REVISED STATUTES. Executive Departments. and Commissioner of Agriculture shall keep, in proper books, a complete inven- tory of all the property belonging to the United States in the buildings, rooms, offices, and grounds occupied by them, respectively, and under their charge, adding thereto, from time to time, an account of such property as may be procured subsequently to the taking of such inventory, as well as an account of the sale or other disposition of any of such property, [except suppUes of stationery and fuel in the public offices and books, pamphlets, and papers in the Library of Congress].— (15 July, 1870, c. 300, s. 1, v. 16, p. 364; 27 Feb., 1877, c. 69, V. 19, p. 241.) 22 Stat., 296.) The Bureau of Supplies and Accounts is required to report annually to Congress an account of supplies at the various stations pertaining to the Naval Establish- ment. (Act Mar. 2, 1889, 25 Stat., 817.) Disposition of useless papers in executive departments is provided for by act of Febru- ary 16, 1889 (25 Stat., 672), amended by act of March 2, 1895 (28 Stat., 933). Other pro- visions of law on the same subject, relating specifically to the Navy, are contained in act of February 16, 1909, section 14 (35 Stat., 622), act of August 22, 1912 (37 Stat., 329), and naval appropriation act of March 3, 1915 (38 Stat., 929). On general subject of custody of public property, see note to section 161, Revised Statutes. This section was amended to read as above by act of February 27, 1877, section 1 (19 Stat., 241), the amendment consisting in adding to the original section the words printed in brackets. A similar provision with reference to the Post Office Department is contained in section 397, Revised Statutes, and with reference to the Capitol, Botanical Garden, and the Pres- ident's House in section 1833, Revised Statutes. Both of these sections require an annual report to Congress of the required inventory and account. The Secretary of the Navy is required to report to Congress armually account of proceeds from sales of public property. (Sees. 429, 1541, and 3672, R. S., and act Aug. 5, 1882, Sec. 198. [Data to be furnished for Biennial Register.— Superseded.] This section provided as follows: "Sec. 198. The head of each department shall, as soon as practicable after the last day In September in each year in which a new Congress is to assemble, cause to be filed in the Department of the Interior a full and complete list of all officers, agents, clerks, and employees employed in his department, or in any of the offices or bureaus connected therewith. He shall include in such list all the sta- tistics peculiar to his department required to enable the Secretary of the Interior to pre- pare the biennial register." — (27 Apr., 1816, Res. No. 6, s. 1, v. 3, p. 342; 3 Mar., 1851, c. 32, 8. 1, V. 9, p. 600; 14 July, 1832, Res. No. 11, V. 4, p. 608.) It-was supersededbyactof January 12, 1895, section 73 (28 Stat., 618), which contained de- tailed provisions concerning data to be fur- nished the Secretary of the Interior for publi- cation in the "Official Register of the United States" every two years. By act of June 7, 1906 (34 Stat., 219), it was provided that "The Direc- tor of Census shall edit, index, and publish the Official Register of the United States, and the provisions of existing law imposing that duty upon the Department of the Interior are hereby repealed, and the data to be included in the Official Register, which is now required to be transmitted to the Secretary of the Interior, shall hereafter be transmitted to the Director of the Census." 228 TITLE yil. DEPARTMENT OF THE TREASURY. Sec. 233. Establishment of Department of the Treasury. 236. Settlement of public accounts. 237. Commencement of fiscal year. 248. Forms of keeping and rendering accounts, etc. 250. Settlement of accounts within fiscal year. 251. Rules, regulations, and forms. 255. Appointment of disbursing agents. 260. Reports upon appropriations for Depart- ments of War and Navy. 264. Report of Coast Survey expenditures. 266. Quarterly publication of receipts and ex- penditures. 268. Comptrollers. 269. Duties of First Comptroller. 271. Power to direct settlement of accounts. 272. Report of officers failing to make settle- ment. 273. Duties of Second Comptroller. 274. Arrears of pay due deceased seamen. 275. Signing bounty certificates. 276. Auditors. 277. Duties of auditors. Sec. 283. Accounts of Departments of War and the Navy. 284. Accounts of pay officer of lost vessel. 285. Disbursements by order of commanding officer. 286. Fixing date of loss of missing vessels. 287. Accounts of seamen on lost vessel. 288. Compensation for personal effects lost. 289. Payment in case of death. 290. Allowance to officers for personal effects lost. 297. Auditors may administer oaths. 300. Allowance of lost checks. 301. Treasurer. 303 . Assistant Treasurer. 305. Duties of the Treasurer. 306. Liabilities outstanding three or more years. 307 . Vouchers for drafts remaining unpaid . 308. Payment upon presentation of outstanding drafts. 309. Accounts of disbursing officers unchanged for three years. 310. Annual reports of disbursing officers, etc. CHAPTER ONE. THE DEPARTMENT. Sec. 233. [Establishment of Department of the Treasury.] There shall be at the seat of Government an Executive Department to be known as the De- partment of the Treasury, and a Secretary of the Treasury, who shall be the head thereof.— (2 Sept., 1789, c. 12, s. 1, v. 1, p. 65.) See note to section 158 Revised Statutes, concerning executive departments in general. Sec. 236. [Settlement of public accounts.] All claims and demands what- ever by the United States or against them, and all accoimts whatever in which the United States are concerned, either as debtors or as creditors, shall be settled and adjusted in the Department of the Treasury. — (3 March, 1817, c. 45, s. 2, V. 3, p. 366. U. S. V. Mann, 1 Brock, 9 [should be 2 Brock, 9]. Cooke et al. V. U. S., 91 U. S., 389.) See act of July 31, 1891 (28 Stat., 205 et seq.), relating to the duties of Comptroller of the Treasury and Auditor for the Navy Depart- ment. Property accounts. — Settlement of, is provided for by act of March 29, 1894 (28 Stat., 47). Inspection of books and records. — By act of March 15, 1898 (30 Stat., 316), it is provided that "all books, papers, and other matters relating to the accounts of officers of the Government in the District of Columbia shall at all times be subject to inspection and examination by the Comptroller of the Treasury and the Auditor of the Treasury authorized to settle such accounts, or by the duly authorized agents of either of said officials." 229 Sec. 236. Pt.2. REVISED STATUTES. Treasury Department. Report of claims allowed. — "The Secretary of the Treasury shall, at the commencement of each session of Congress, report the amount due each claimant whose claim has been allowed in whole or in part to the Speaker of the House of Representatives and the presiding officer of the Senate, who shall lay the same before their respective houses for consideration." (Act July 7, 1884, 23 Stat., 254.) Report of delinquent officers. — Provision for annual report to Congress by the Secre- tary of the Treasury of officers delinquent in rendering accounts is contained in act May 28, 1896, section 4 (29 Stat., 179). Assigmnent of claims against United States is restricted by section 3477, Revised Stat- utes; assignment of pay by enlisted men, Navy , isperiuitted by section 1576, Revised Statutes ; to be discouraged by commanding officer, section 1430, Revised Statutes; al- lotment of pay by officers. Navy, is per- mitted by act of June 10, 1896 (29 Stat., 361) . I. Scope of Section. II. Jurisdiction of Accounting Officers. III. Limitations upon Jurisdiction. IV. Jurisdiction, Accounting Officers AND Federal Courts. V. Jurisdiction, Accounting Officers AND Heads of Executive Depart- ments. VI. Set-off. VII. Effect of Accounting Officers' Ac- tion. VIII. Reopening of Accounts. IX. Mandamus Proceedings to Compel Payments. I. Scope of Section. Applies only to Treasury Department proper. — All claims against the United States are to be settled and adjusted in the Treasury Department; and that is located "at the seat of Government." The assistant treasurer in New York is a custodian of public money, which he may pay out or transfer upon the order of the proper department or officer; but he has no authority to settle and adjust — that is to say, to determine upon the validity of, any claim against the Government. He can pay only after the adjustment has been made "in the Department of the Treasury," and then upon drafts drawn for that purpose by the Treasurer. (Cooke v. U. S., 91 U. S., 399.) Ofl&cers charged ■«rith. execution of sec- tion. — The principal officers to whom the great responsibility of settling and adjusting accounts under this section is committed by law are called "accounting officers," which in- cludes the auditors, each acting separately upon different classes of accounts, and the Comptroller of the Treasury. The different processes in the settlement of claims and de- mands upon the Government, from their re- ceipt by the auditor, through the several stages of examination, certification, and drawing of warrants for payment, up to the time when the Treasurer issues his drafts, are all matters of accounting to justify the Treasurer in paying out the public money, and are not consummated beyond recall until the claimants receive the negotiable drafts of that officer, drawn, accord- ing to the convenience of the parties, upon the Treasury proper, in Washington, or upon one of the several assistant treasurers or designated depositaries in other places. (McKnight's case, 13 Ct. Cls., 305; affirmed 98 U. S., 179.) "Accounting officers " is a phrase well known as referring to the auditors and Comptroller of the Treasury, who pass upon all claims against the Government before they can be, paid out of the Public Treasury. (Moncure v.' Zunts, 11 Wall., 416, 422.) In matters of accounting, the several public officers act independently of each other, al- though the Secretary of the Treasury, being the head of the department, has a right generally to control or revise, to some extent, the action of others in subordinate official positions, and the Comptroller has some power over an auditor and is not bound by the action of that officer which is certified to him. (McKnight's case, 13 Ct. Cls., 306, 307; affirmed 98 U. S., 179.) The Secretary of the Treasury may, when in his judgment the interests of the Government require it, suspend payment and direct the re- examination of any account. (Act July 31, 1894, sec. 8, 28 Stat., 207.) Section 236, Revised Statutes, must be con- strued in connection with sections 273-277, Re- vised Statutes, which specify the jurisdiction of the accounting officers. (Dig. Dec. Second Comptroller, v. 3, par. 735.) The general provision of law governing the manner of settling claims against the Govern- ment is found in section 236, Revised Statutes. This section was taken from section 2 of act of March 3, 1817 (3 Stat., 366), and ^vithout detail- ing the minor changes which have been made in special cases, it is suflicieut to state that the law has continued substantially the same ever since. This power of the Treasury Department to settle claims against the United States is exercised by the accounting officers, and under the pres- ent law the Auditor for the Navy Department is charged with the duty of settling all claims arising under the naval establishment. (4 Comp. Dec, 587.) Tills section provides that all claims and de- mands against and by the United States shall be settled and adjusted in the Treasury Depart- ment, and by section 7 of the act of July 31, 1894 (28 Stat., 206), the Auditor for the Navy De- partment shall receive and examine all ac- counts of the naval establishment. The intent of these laws is that bona fide claimants shall have their claims considered by the account- ing officers. (Comp. Dec, Dec. 17, 1904, 46 S. and A. Memo., 459.) Status of accounting officers. — The ac- counting officers do not constitute a "depart- ment" within the meaning of a law referring to claims "rejected or reported on adversely by any court, department, or commission au- thorized to hear and determine the same." (U. S. V. Harmon, 147 U. S., 273.) 230 Treasury Department. Ft. 2. RE VISED S TA T UTES.. Sec. 236. The accounting officers of the Treasury are neither contracting nor disbursing officers. In the case of disbursing officers, the policy of the Government has been to acknowledge no pay- ments as made on its behalf save those wliich were authorized by law. However, where the accounting officers of the Treasury have juris- diction to settle an account or claim against the Government, a mistake of law committed inci- dentally in the adjustment will not, after pay- ment of the balance found to be due, affect the finality of the settlement or entitle the Govern- ment to recover back the money paid in mis- take of law. (McKee v. U. S., 12 Ct. Cls., 533, 534; reversed on other grounds, 97 U. S., 233.) See below " \"III, Reopening of accounts." Under a special statute providing that the accounting officers shall "settle and adjust" a claim therunder, the duties of the accounting officers were administrative, not judicial, and the Court of Claims was not divested of juris- diction over said claim. (McLean v. U. S., 226 U. S., 374, 378, citing Medbury v. U. S., 173 U. S. 492.) Itemized accounts required. — For the ex- penditure of all public moneys it is the invaria- ble rule to require that accounts shall be item- ized as far as practicable, in order that the ac- counting officers may properly audit them. The law may permit the exercise of discretion in the use of public funds without dispensing with the usual requirement of an itemized ac- count showing fully for what purposes the money has been expended. (4 Comp. Dec, 159; 4 Comp. Dec, 271.) The rules prescribed by the Treasury Department for the adjustment of claims against the Government will, if reasonable, be regarded by the courts; but if these rules go to a complete denial of justice to the individual the court, if it have jurisdiction of the subject, can not disregard the rights of tlie parties. (U. S. V. Maun, 26 Fed. Cas. No. 15716, per Mar- shall, C. J.) Taking security for debt to the Govern- ment. — It is not generally within the duties of public officers to take collateral security, and whenever they do so they are usually acting beyond the scope of their official authority and the United States are not bound by their agreements. However, where public officers, looking to the best interests of the Government, do sometimes accept such security without re- leasing the debtors or subjecting the United States to liability, in so far as the arrangements are consummated for the benefit of the Gov- ernment they may l^e upheld, and the officers commended for their vigilance and zeal in the public service. (Taggart v. U. S., 17 Ct. Cls., 322.) _ Claims against Government voluntarily settled from private funds. — A naval militia officer who voluntarily pays an obliga- tion of the United States is not entitled to reimbursement from the Government. (Comp. Dec, Feb. 17, 1915, Appeal No. 24365, file 26254-1709, citing 4 Comp. Dec, 409; 6 Comp. Dec, 594; 8 Comp. Dec, 584; 11 Comp. Dec, 486; 12Comp.Dec,48.) [In a reconsider- ation in this case May 22, 1915, it was held that, owing to exceptional circumstances, reimburse- ment should be allowed, applying 18 Comp. Dec, 299, holding that "Anofficer of the United States is not, ordinarily, authorized to advance his private funds in payment of any claim against the United States except for expenses incurred by him personally for travel or other personal expense allowed by the terms of his employment. But this is a rule of accounting and should not be permitted to hinder the pub- lic business or prevent the payment of just and lawful claims against the Government."] II. Juris DicTioisr op Accounting Officers. In general. — Substantially all accounts must pass under the eye and receive the ap- proval of the accounting officers of the Treas- ury. Even the accounts of the Secretary of the Treasury and of the President come to them for allowance. The business of the account- ing officers ia to determine what payments shall or shall not be made on behalf of the United States. These functions of office were a part of the wondrous birth of the Treasury system, and have remained unchanged from the foundation of the Government to the pres- ent time. It is well known that the Comp- trollers have sometimes construed statutes in one way and the courts subsequently in another. Such diversity of judgment is inevitable in the administration of human affairs, and the wonder is that there has been so little of it on the part of these officers. (McKee v. U. S., 12 Ct. Cls., 532, 534; reversed on other grounds, 97 U. S., 233.) The law devolves upon the accounting offi- cers of the Treasury the duties of examining, settling, and adjusting all accounts, claims and demands in which the United States are con- cerned, either as debtors or as creditors, and to certify balances arising thereon; their exercise of such duties includes the weighing of evi- dence, the construction of statutes, and the application of general principles of law in con- nection therewith. (5 Comp. Dec, 410; 14 Comp. Dec, 169.) It IS the theory, and a wise one, upon which the final adjustment and settlement of accounts in the Treasury Department is founded, that the officers who pass upon them shall be wholly distinct from those who expend the money or incur the liabilities. For the manner in which these latter officers perform the trust imposed upon them they alone are responsible; the Comptroller is only charged with the duty of seeing that they keep within the law. (Waters -y. U. S., 21 Ct.Cls., 38.) The organization of the Department of the Treasury is comprehensive, thorough, and exact; it is supplied not only with skilled accountants but special law officers, and be- sides has on i)roper occasions the right to call in aid the opinion of the Attorney General of the United States; it seems fully equipped for the discharge of every fiscal duty and exigency. (State of Mississippi v. Durham, 4 Mackey (D. C), 237.) The accounting system of the Treasury is one of the oldest, best known, and most highly esteemed parts of our governmental machinery. To its scrutiny all accounts are subjected of per- 231 Sec. 236. Ft. 2. REVISED STATUTES. Treasury Department. eons having business or financial relations with the Government, from the President to the pmallest contractor. (Dennison v. U. S., 25 Ct. Cls., 320.) The machinery of the Treasury Department for the adjustment of accounts is only adapted to the passing upon ordinary accounts upon which controversies are not expected to arise to any great extent, and not at all beyond the means of adjusting from the records and files of the several departments. One of the primary, most important, and most useful objects to be attained in establishing the Court of Claims was to provide a tribunal where claims against the Government should be determined upon legal evidence, taken under the forms and subject to the rules of law, which they are not and never can be in the process of accounting in the Treas- ury Department. (McKnight's case, 13 Ct. Cls., 310; affirmed 98 U. S. 179.) Judgments of Court of Claims. — Even the judgments of the Court of Claims rnustpass through the same processes of accounting, not for the purpose of review, but to justify the Treasiu-er in issuing his draft for the payment thereof; and that is what all the long process of accounting leads to. (McKnight's case, 13 Ct. Cls., 309; affirmed 98 U. S. 179.) It is the duty of the Secretary of the Treasury to pay judgments of the Court of Claims; this section does not confer power upon him to go behind the judgment. The accounting officers have no authority to reexamine the judgment, which is conclusive as to everything it em- braces. (U. S. V. Jones, 119 U. S., 477; see also Meigs V. U. S., 20 Ct. Cls. 181; U. S. v. O'Grady, 22 Wall., 641; Wis. Cent. R. R. Co. v. U. S., 164 U. S., 190.) Public money. — The pay and allowances of midshipmen coming out of the general fund of the Treasury is public money to start with, and it will remain public money until it passes from the absolute control of the Government. Accordingly, held that funds received by a naval pay officer as commissary officer of the midshipmen's mess at the Naval Academy are public funds, and that he should be required to account for the proper disbursement thereof to the accounting officers of the Treasury, the same aa any other public money placed in his hands for disbursement in his official capacity. (14 Comp. Dec, 680.) This decision is not affected by the fact that the midshipmen receipt on the pay roll for their proportionate share of the cost of running the midshipmen's mess; the pay- master does not in fact pay this money to the midshipmen but pays it to himself as commis- sary of the mess and accounts for it as such com- missary; a receipt for money by a midshipman which he did not actually receive is not a good acquittance to the Government. It therefore becomes necessary to show by other evidence what he actually received, and tliis is accom- plished by requiring the commissary officer to render an accounting of the funds paid to him from the pay and rations due the midshipmen and expended by him for their benefit. (Comp. Dec, Dec. 31, 1908, 94 S. and A. Memo., 923.) [The Navy Regulations forbid disbursing offi- cers to require receipts in advance of actual payment. (Art. R-4303 (2), Navy Regs. 1913; see also art. R-4384, (3).)] Under Navy regulations prior to July 1, 1907 (revoked byG. O. No. 44, Apr. 16, 1907), the com- mutation value of rations due enlisted men was credited by the pay ofiicer to himself as such, and debited against himself as commissary offi- cer in charge of the general mess, composed of such enlisted men, the money never actually leaving the pay officer's hands until finally paid out in the shape of mess expenditures and not being paid over to the individual enlisted men who composed the mess. It was held by the Comptroller of the Treasury that such commu- tation money in the hands of the pay officer was public money until actually expended by him, and he should be required to account for its proper disbursement to the accounting officers of the Treasury, the same as any other public money placed in his hands for disbursement in his official capacity. (12 Comp. Dec, 678; see also 94 S. and A. Memo., 923.) A sum of $24,500 was advanced from the ap- propriation ' ' Pay of the Navy " in 1867 and 1868 for the purpose of conducting a midshipmen's store at the Naval Academy; accumulated profits from this investment amounted in 1908 to about $31,000: Held, that the total sum, rep- resenting the original amount and the profits thereon, belongs to the Government and is public money, although the establishment of this fund and its maintenance was without authority of law; further held that such funds should be accounted for to the Treasury De- partment. (14 Comp. Dec, 680.) The proceeds from sale of garbage from a receiving ship, including that from the general mess, is public money and must be covered into the Treasury under the provisions of sec- tion 3618 of the Revised Statutes as "Miscel- laneous receipts. " (19 Comp. Dec, 450.) The profits from sales made by ships' stores in the Navy, as authorized by act of June 24, 1910 (36 Stat., 619), are not public money within the meaning of section 3648 of the Revised Statutes. (Comp. Dec, Aug. 11, 1914, file 26254-1571:2; see also file 26254-1759, Apr. 20, 1915.) For other cases see note to section 1383, Re- vised Statutes, under "IX. Liability of Sure- ties." III. Limitations Upon Jurisdiction. Jurisdiction limited by language of statutes in special cases. — This section un- doubtedly gives to the Treasury Department the settlement of all disputed money claims but it is entirely competent for Congress to alter this arrangement, and it has repeatedly done so. Where ( 'ongress expressly provides that before payment a claim shall be "examined and set- tled by the Secretary of War," the obvious construction is that in the case referred to the decision of the Secretary of War was to be the final adjudication. (16 Op. Atty. Gen., 492; affirmed 19 Op. Atty. Gen., 387.) [But noth- ing short of a clear intent, unequivocally ex- pressed in a statute, will warrant a court ia hold- ing that the involved accounts of a public officer are not to be settled at the Treasury aa other public accounts are settled, or that Con- 232 Treasury Department. Pt.2. RE VISED STAT UTES . Sec. 236. grass has intended to create an extraordinary exception to the accounting system of the United States where no need of such exception exists and where none is in terms declared. Dennison v. U. S., 25 Ct. Cls., 321.] The word "settle ' ' means to adjust, liquidate, balance or pay. (15 Comp. Dec, 557, citing Applegate v. Baxley, 93 Ind., 149.) Where Congress provided that the "settlement" of certain claims "shall be under the direction of the Commissioner of Pensions, " held that the word "settlement" was used in the sense of an adjustment, liquidation and payment of the claim, and that the effect of the act was to transfer to the Commissioner of Pensions the power to adjust and settle the claims referred to, and to that extent to deprive the accounting ofhcersof the general jurisdiction to settle such claims, conferred by this section ; that the final payments as made under the direction of the Commissioner of Pensions would, of course, come before the accounting officers for settle- ment; but such settlement would only involve the allowance of credit for the payment of an adjusted claim, and not the settlement of the claim itself. (15 Comp. Dec, 557.) Where Congress, by act of May 13, 1908 (35 Stat., 128) provided that, upon the existence of certain facts, tlie Paymaster General of the Navy "shall cause to be paid " a gratuity to the beneficiary of a deceased officer or enlisted man of the Navy or Marine Corps, and that the Sec- retary of the Navy shall establish regulations requiring each officer and enlisted man to desig- nate the "proper person" to whom the amount should be paid, it was held by the Na\'y De- partment that the decision of the Paymaster General, that the facts necessary to authorize payment did not exist in a given case, was necessarily conclusive of the question, except for the right of the claimant to appeal from the action of the Paymaster General to the Secre- tary of the Na\"y; and that the Auditor for the Navy Department did not have jurisdiction to review the decision of the Pa>Tnaster General. (File 26543-66, Sept. S and 9, 1911; compare 22 Comp. Dec, 532; file 26543-148.) In all cases the officer charged by statute with the duty of allowing or disallowing a claim in his discretion, or according to his judgment, must first act, before the claimant's right is fixed. Then, when he has obtained a decision in his favor, the claimant's demand, of which that decision is prima facie if not conclusive determination, if the officer acts within the scope of his authority and in accordance with the provisions of law, may be the foundation of an action in the Court of Claims, or may pass the accounting officers and be paid by draft upon warrant duly issued, as in other cases. (McKnight's case, 13 Ct. Cls., 309; affirmed 98 U. S., 179.) By act of March 2, 1895 (28 Stat., 768) it was provided that "all paymei^ts made out of the contingent fund of the House of Repre.senta- tives, upon vouchers approved by said tempo- rary committee on accounts, shall be deemed, held and taken and are hereby declared to be conclusive upon all the departments and audit- ing officers of the government." Held, that the Comptroller of the Treasury has no jurisdiction to render a decision upon any question involved in the payment of accounts which have been so approved by the temporary committee on ac- counts; that Congress intended by the pro- vision above quoted to place upon said com- mittee the fuial responsibility of approving all payments to be made from the contingent fund of the House of Representatives, and to make their action conclusive. (2 Comp. Dec, 24.) The certificate of the Speaker of the House of Representatives as to the salary and mileage of members, beingby law (sees. 47,48, R.S.)made conclusive upon all departments of the Govern- ment, the Comptroller has no jurisdiction to ren- der a decision upon the amount due to a mem- ber for salary or mileage. (2 Comp. Dec, 339.) The naval appropriation act of June 24, 1910 (36 Stat., 619), provided that profits from sales by ships' stores in the Navy should be ac- counted for to the Bureau of Supplies and Ac- counts, Navy Department. In view of this provision, the Comptroller of the Treasury is without jurisdiction to render a decision as to the legality of proposed expenditures from this fund. (Comp. Dec, Apr. 28, 1915, file 262-54- 1759:2.) The accounting officers are without jurisdic- tion to receive and settle claims of individual officers and enlisted men of the organized militia for pay while engaged in field or camp service for instruction, and are without revisory power in such cases. The officers and men must look to the State, Territory, or District of Columbia in whose service they are engaged; when the United States turns over to the State, Territory or District of Columbia its allotted portion of the appropriation made by Congress for the militia, the disbursing officer is accountable in case he pays out said money for purposes other than that for which it was appropriated by Congress; but if he refuses to pay officers and enlisted men of the militia money to which they are entitled, they can not present individual claims and have them paid through the accounting officers. The accounting officers are without jurisdiction to compel the disburs- ing officer to make any payment or to afford said officers and enlisted men any remedy. (10 Comp. Dec, 635.) [But this does not apply to pay due the naval militia for joint service or maneuvers with the Navy, as pa\Tnents in such cases are not required to be made through the disbursing officer of the naval militia organiza- tions. (Com]). Dec, June 20, 1914, file 3973- 64:2, and see act Feb. 16, 1914, sec. 12, 38 Stat., 286, later repealed).] No jurisdiction to determine whether deductions shall be made from pay of public ofl3.cers on account of alleged in- debtedness. — The Comptroller of the Treasury is authorized by law (act July 31, 1894, sec 8, 28 Stat., 207) to render decisions upon ques- tions of payment to be made by disbursing officers of the Government. But the law con- fers no such function upon the Comptroller nor upon an auditor as deciding that the pay of Eublic officers fixed by statute should be with- eld on account of alleged indebtedness of such officers to the United States. When such in- debtedness is denied by the officer to whom salary is lawfully due, the matter is one for judi- 233 Sec. 236. Pt.2. REVISED STATUTES. Treasury Department. cial rather than administrative determination, and a decision of tlie Comptroller rendered in such case is extraothcial, not required by law, and affords no warrant for the action of the dis- bursinji; oliicer in withholding^ the olhcer's salary, in whole or in part. Payment of salary in such case may be enforced by mandamus Eroceedins^, and the othcer is not required to ring suit in the Court of Claims. (Smith v. Jackson, 241 Fed. Rep., 747; affirmed 246 U. S., 388.) Jurisdiction, limited to accounts.— The terms "debtors" and "creditors" used in this section limit and qualify the nature of the claims and demands which are to be settled and adjusted in the Treasury Department. The assumption of the adjudication of private claims against the government by the accounting officers, except as incident to the settlement of accounts, or except when authorized by private act, would impair their functions and defeat the real object for which their offices were created. (Dig. Dec. Second Comp. v. 3, par. 735.) Where the Paymaster General of the i\avy declined to pay a claim for death gratuity under the act of May 13, 1908 (35 Stat., 128), there was nothing in any account which had been ren- dered to the auditor upon which that officer could review the action of the Paymaster Gen- eral. Accordingly, held that the Auditor for the Navy Department did not have jurisdiction to settle and adjust the claim in this case, although claimant took the matter up with the auditor's office; that under the law the duties of the auditor relate to the examination of accounts and the certification of balances; that if pay- ment had been made to the beneficiary in this case of a less sum than claimed, the accounts, including the payment of such amount, would be before the auditor, but such was not the fact, as no payment at all had been made; and that claimant's appeal was to the Secretary of the Navy from the Paymaster General's action and not to the accounting officers of the Treasurv. (File 26543-66, Sept. 8, 1911.) Property accounts. — The settlement of property accounts is provided for by act of March 29, 1894 (28 Stat., 47). Under said act, the juris- diction of the accounting officers does not ex- tend back of the decision of the officer whose duty it is to audit property accounts in each department [in the Navy Department, the Pay- master General of the Navy, and the quarter- master of the Marine Corps]; and where such officer has fixed the responsibility for loss or damage to property, and ascertained its value and certified a charge against the responsible officer to the accounting officers, it is not within the jurisdiction of the accounting officers to re- move the charge. (Comp. Dec, May 13, 1908, 87 S. and A. Memo., 703; Comp. Dec, July 26, 1915, 173 S. and A., Memo., 3728.) Appeal in such cases arising in the Navy or Marine Corps, may be taken to the Secretary of the Navy who has jurisdiction to cause the charge to be removed. (File 18140-10:2, May 16, 1911.) The effect of said act of March 29, 1894, was to divest the auditor of the jurisdiction there- tofore possessed by him over property accounts and t ansactions of the officers of the Navy Department, and to relieve him of all responsi- bility in relation to the disposition of property intrusted to said officers. Under this act the duty and responsibility of determining ques- tions relating to the correct disposition or loss of property have been transferred to and vested in the proper officer of the Navy Department, and it seems clear that the auditor will have no authority over or in relation to the property mentioned in a cash voucher evidencing the purchase of forage, until he has been furnished with a certificate of the Paymaster General in accordance with said act; jurisdiction over property accounts can not be given to the auditor by injecting papers into cash accounts tending to show what disposition has been made of such property. (2 Comp. Dec, 267; Comp. Dec, June 23, 1908, appeal No. 15210, file 26254-19; 23 Comp. Dec, 28.) The accounting officers of the Treasury have no jurisdiction to settle accounts of rations issued in kind. (Comp. Dec, June 23, 1908, appeal No. 15210, file 26254-19; Comp. Dec, Mar. 19, 1909, 97 S. and A. Memo., 995.) It fol- lows that the Comptroller of the Treasury has no jurisdiction to render a decision with reference to over-issues of rations to men absent with or without leave. (Comp. Dec, June 27, 1908, file 26254-17. [Quaere, Whether Comptroller has jurisdiction to render decisions upon questions relating to the issue of heat and light in kind to officers of the Navy; this question discussed but not decided in file 26254-394, Jan. 29 and Feb. 8, 1910.] The Comptroller of the Treasury is not author- ized to render a decision to the Secretary of War upon the question whether certain members of the organized militia are entitled to issues of uniforms, etc.; as the accounting for such property is regulated by the act of March 29, 1894(28 Stat., 47). (20 Comp. Dec, 49, 55; see also Comp. Dec, Feb. 3, 1917, file 26254-2177:1). TJnliquidated damages. — Under section 236, Revised Statutes, the accounting officers have jurisdiction of all claims against the United States, whether liquidated or unliqui- dated, but by long-continued practice a rule of law has been established which precludes these officers from allowing claims for unliquidated damages. (5 Comp. Dec, 770.) Section 236, Revised Statutes, refers to liqui- dated contract obligations. (Dig. Dec, Second Comp., V. 3, par. 735. See also 4 Op. Atty. Gen., 327,627; 6 Op. Atty. Gen., 524; 14 Op. Atty. Gen., 424; Carraicki;. U. S., 2Ct. Cls., 126, 140.) The accounting officers of the Treasury have no jurisdiction to settle claims for unliquidated damages, whether the claims arise from un- avoidable accident or from torts. Accordingly, held that there is no jurisdiction to settle claim for damage done to wharf by navy yard tug. (1 Comp. Dec, 283.) [This in the absence of ex- press statutory authority for payment of such claims.] The head of an executive department is not authorized to pay the actual expenses of repair- ing a vessel injured in a collision with a Gov- ernment vessel, the claim arising from the col- lision being one for imliquidated damages caused by the tort of the Government's officers. 234 Treasury Department. Ft. 2. REVISED STATUTES. Sec. 236. (1 Comp. Dec, 261.) It seems to be the ap- proved practice to commit such claims to the tender mercies of Congress for settlement. (1 Comp. Dec, 285.) [The Court of Claims has said : ' ' We do not find it to be witliin the official duties of the head of any department to make estimates for appropriations to pay claims which the Government is not in law bound to pay, however much they may be urged to do so by claimants who feel aggrieved by the tortious conduct of public officers. An executive de- partment is not the place to apply for redress of grievances not founded on legal rights." (Pit- man?;. U. S., 20 Ct. Cls., 256.) The naval ap- propriation act, June 24, 1910 (36 Stat., 607), authorizes the Secretary of the Navy "to con- sider, ascertain, adjust and determine" the amounts due on all claims for damages occa- sioned by collisions for which vessels of the Navy are responsible, where the amount of the claim does not exceed $500; and to report the amounts due to Congress at ^ch session, through the Treasury Department, for payment as legal claims." The naval appropriation act of July 1, 1918(40Stat., 705), authorized the Sec- retary of the Navy to "consider, ascertain, adjust, determine, and pay" amounts due, not exceeding $1,000, on claims for damages to and loss of private property of inhabitants of Euro- pean countries noL enemies or their allies, occa- sioned by men in the naval service during the existing war.] The accounting officers of the Treasury have jurisdiction to settle claims based on a contract with the Government, either expressed or im- plied, where it is possible to ascertain either from the terms of the contract, or fi-om extrane- ous proof, the justice of the claim and the cor- rectness of the amount; but they can not take cognizance of claims for unliquidated damages arising from torts or breach of contract. Tliis has been repeatedly held by the Court of Claims and in opinions of Attorneys General. (2 Comp. Dec, 174; citing McKee's case, 12 Ct. Cls., 556 [reversed, 97 U. S., 233]; Dennis v. U. S., 20 Ct. Cls., 119, 14 Op. Atty. Gen., 24; and see. 20 Comp. Dec, 661.) The jurisdiction of the accounting officers is limited to claims arising on contracts, express or implied, and does not extend to a claim for imliquidated damages, even though such claim does not arise from the tort of an officer of the Government. Accordingly, held that account- ing officers have no jurisdiction of claim for re- imbursement for private property destroyed by fire. (2 Comp. Dec, 487.) [Reimbursement for loss or damage of private property belonging to persons in the Navy or Marine Corps has been provided for by various acts of Congress. (See sec. 290, R. S., and note thereto.)] The accounting officers and heads of depart- ments have no cognizance of claims for unli- quidated damages founded on neglect or breach of duty of public officers, even where they grow out of nonperformance of written contracts, other than in payment for work actually done or material furnished and received . (Pitman v. U. S., 20 Ct. Cls., 253; 1 Comp. Dec, 261.) It is plain that the Government itself is not responsible for the misfeasances, or wrongs, or neglects, or omissions of duty of subordinate officers or agents employed in the public serv- ice; for it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs; since that would in- volve it, in all its operations, in endless em- barrassments, and difficulties, and losses, which would be subversive of the public interests. (Pitman v. U. S., 20 Ct. Cls., 255, quoting Judge Story in his work on Agency.) Equitable claims. — The accounting officers have no jiu-isdiction in a case in which claimant has an equitable claim only, wliich, however just, the executive officers of the Government are not authorized to settle. (9 Comp. Dec. 663.) [See section 287, Revised Statutes, which requires accounting officers to settle certain classes of accounts in the Navy "on principles of equity and justice."] IV. JuKiSDicTiON, Accounting Officers and Federal Courts. The Court of Claims at first had a rule that "in every case where the claim is such as is ordinarily settled in any Executive Department, the petition shall show that appli- cation for its allowance has been made to that department, and without success, and its de- cision thereon;" and a petition was dismissed because it did not set forth those facts. On appeal the Supreme Court decided the rule to be unauthorized and void, and remitted the case with directions to proceed to a hearing on the petition, and the rule was thereupon abrogated and the Court of Claims has ever since proceeded to hear cases without reference to the action of the accounting officers thereon. (McKnight v. U. S., 13 Ct. Cls., 312; affirmed 98 U. S., 179; Clyde -y.U. S., 13 Wall., 35.) Decisions binding on accounting oflS.- cers. — By express legislation (act Mar. 4, 1907, 34 Stat., 1356), as well as the ruling of the Supreme Court, the decisions of the Court of Claims, when not appealed from, furnish the rules by which the accounting officers are to be guided in their settlement and adjustment of Uke cases. (Leighv. U. S., 43 Ct. Cls., 387; 18 Comp. Dec, 493; Comp. Dec, Sept. 26, 1910. file 26254-539. But see 21 Comp. Dec, 431; reversed 21 Comp. Dec. 561; also, Comp. Dec, Apr. 13, 1916, file 26543-140:2, and 20 Comp. Dec, 821.^ "Clearly it is the duty of the accounting officers, as well as of all other officers of the Government in the discharge of their official duties, to follow the rulings of the United States courts where applicable. * * * Notwith- standing a claim may have been allowed or rejected, if subsequent thereto the Supreme Court or this court has adjudicated such claim or a like claim such adjudication creates a new rule of decision binding on the accounting offi- cers in the subsequent consideration of like claims, whether then pending or subsequently filed." (Blazek v. U. S., 44 Ct. Cls., 188, 191, 192.) Any doubt which an auditor may have had as to the legality of making deductions from the salary of a public officer in a particular 54641°— 22- ■IG 235 Sec. 236. Pt.2. REVISED STATUTES. Treasury Department. case "should have been subordinated, first, to the ruling of the Attorney General and, second, beyond all possible question to the jiidgments of the courts below." (Smith v. Jackson, 246 U. S., 388, aflirming 241 Fed. Rep., 747.) The judgments of the Court of Claims, not ap- pealed from, are conclusive upon the accounting officers, who have no authority to reexamine such a judgment. (U. S. tJ. Jones, 119 U. S.,477; McKnight v. U. S., 13 Ct. Cls., 309, affirmed 98 U. S., 179; Meigs v. U. S., 20 Ct. Cls. 181; U. S. V. O'Grady, 22 Wall., 641; Wis. Cent. R. R. Co. V. U. S., 164 U. S., 190.) The action of the accounting oflEicers is not conclusive in a suit between the United States and the individual. (U. S. v. Harmon, 147 U. S., 274, 275); nor is it even prima facie evidence of the indebtedness of the Government. (McKnight's case, 13 Ct. Cls., 292.) The Court of Claims has jurisdiction, upon reference of the head of any de- partment, to report its findings of fact and conclusions of law with reference to any claim or matter pending in such department which involves controverted questions of fact or law; and the report of the Court of Claims in such a case shall be for the "guidance and action" of the department making the reference. Judiciary Act, IMarch 3, 1911, section 148 (36 Stat., 1137). Where the Comptroller of the Treasury held a provision of the Army Regu- lations to be null and void, the question was referred by the Secretary of War to the Court of Claim.s, which reversed the Comptroller of the Treasury and sustained the validity of the regulation. (In re Smith, 23 Ct. Cls., 452; see also Smith v. U. S., 24 Ct. Cls., 209.) ^Mienever any claim is made against any executive department over which it has ju- risdiction, such department may, withoutaction in the Treasury Department, refer such claim to the Court of Claims, provided it be one w^hich the court might, under existing laws, take ju- risdiction of on the voluntary action of the claimant. (Baltimore & Ohio R. Co. v. U. S., 34 Ct. Cls., 503.) The Court of Claims has jurisdiction to try and adjudicate claims or matters which the Secretary of the Treasury may, upon the cer- tificate of any auditor or of the Comptroller of the Treasury, direct to be transmitted to said court, and of which the court might have juris- diction on the voluntary action of the claimant. (Act Mar. 3, 1911, sec.'l48, 36 Stat, 1137.) Suits for lost checks. — When a Govern- ment check is lost or stolen, the Revised Stat- utes (sees. 306-310, 3646) do not require that payment must be postponed for three years or preclude a suit. They simply authorize dis- bursing officers to duplicate small checks in certain cases. The power given to the ac- counting officers to duplicate lost checks is not exclusive and does not affect the jurisdiction of the courts. (Becker v. U. S., 26 Ct. Cls., 172, 177.) For other cases, see "VII. Effect of accotmt- ing officers' action." V. Jurisdiction, Accounting Officers and Heads of Executive Departments. (A) Secretary of the Navy. (B) Secretary of War. (C) Miscellaneous. Attorney General. — See note to section 356, Re- vised Statutes. Secretary of the Treasury. — The Secretary of the Treasury, being the head of the de- partment, has a right generally to control or revise to some extent the action of others in subordinate official positions. (Mc- Knights' case, 13 Ct. Cls., 30(), 307, affirmed 98 U. S. , 179.) "The Secretary of the Treas- ury may, when in his judgment the inter- ests of the Government require it, suspend payment, and direct the reexamination of any account. " (Act July 31, 1894, sec. 8, 28 Stat., 208.) * (A) Secretary of the Navy. The accounting officers of the Treasury have not the burden of responsibility cast upon them of revising the judgments, correct- ing the supposed mistakes, or annulling the orders of heads of departments. The Secre- tary of the Navy represents the President, and exercises his power on subjects confided to his department. He is responsible to the people and the law for any abuse of the powers in- trusted to him. His acts and decisions on subjects submitted to his jurisdiction and con- trol by the Constitution and laws do not require the approval of any officer of another depart- ment to make them valid and conclusive. The Executive Department of the Government to which is intrusted the control of the subject- matter must necessarilj' determine all ques- tions appertaining thereto. Where the Comp- troller of the Treasury was of the opinion that the Secretary of the Navy had mistaken the law or abused his discretion, and undertook to correct the Secretary's supposed mistake or abuse of discretion, held that the Comptroller "was not bound to assume this responsibility. " The propriety of the action taken was a subject peculiarly within the jurisdiction and discre- tion of the head of the Navy Department, and not subject to revision or correction by the officers of any other department. (U. S. v. Jones, 18 How., 92.) In the Jones case, above-cited, the facts were that an officer of the Navy was detached on special duty in France, and a sum of money was transmitted to him by the Secretary of the Navy, to be disbursed for medical attendance required by said officer for a severe and danger- ous wound accidentally received by him. The money was disbursed accordingly; however, the accounting officers of the Treasury charged the amount so disbursed by this officer against him on his pay account, and refused to recog- nize the authority of the Secretary of the Navy in the premises. The Supreme Court, for the reasons set forth above, sustained the Secre- tary's action and overruled that of the account- ing officers. 236 Treasury Department. Pt.2. REVISED STATUTES. Sec. 236. The Jones case was decided by the Supreme Court in 1855. It has since been quoted and applied in numerous cases, including the fol- lowing: U. S. V. Johnston, 124 U. S., 236, 252; Barnettv.U. S., 16 Ct. Cls., 515; Waters v. U. S., 21 Ct. Cls., 38; Dyer v. U. S., 37 Ct. Cls., 340; Hayden v. U. S., 38 Ct. Cls., 51; Billings v. U. S., 23 Ct. Cls., 179; file 26260-347: C, Oct. 20, 1909, and 26543-66, Sept. 8, 1911; Op. Atty. Gen., May 19, 1915, 171_S.and A. Memo., 3611. [In the case last cited it was held that a Navy regulation concerning responsibility of pay officers is binding on the accounting officers, and that a decision of the Comptroller to the contrary is not conclusive upon the Navy De- partment. See also file 26254-1451:11, Apr. 1915.] The designation of navy mail clerks is by act of May 27, 1908 (35 Stat., 417), vested in the uncontrolled discretion of the Postmaster Gen- eral and Secretary of the Navy, with like uncontrolled discretion to fix theii' compensa- tion within the prescribed maximum . Accord- ingly, a decision of the Comptroller of the Treas- ury that a certain Navy mail clerk designated pursuant to the statute had not been validly designated because such designation was not in accordance with certain general regulations issued by the Secretary of the Navy, was extra- official and not binding upon the Navy De- partment. Held further, that the designation in question was entii'ely valid. (Op. Atty. Gen. to Secy. Navy, July 19, 1918, file 26254- 2476:5.) The question whether or not the record of an enlisted man in the Marine Corps is "honest and faithful" within the meaning of section 1281, Revised Statutes, governing pay- ment of retained pay, is one for the naval au- thorities to decide, and the accounting oflicers and the courts are not required to reconsider the alleged misconduct and add to the penalty pre- scribed by the military authorities. The Presi- dent, acting through the Navy Department, not having declared a forfeiture of retained pay, in addition to discharge from the service, the record of the man in question cannot be reex- amined in a collateral proceeding for the pur- pose of imposing such forfeiture. (Kingsley v. U. S., 24 Ct. Cls., 219.) [In adecision rendered April 21, 1914 (20 Comp. Dec, 751), the Comp- troller of the Treasury held that, while he has no jurisdiction to decide as to the character of an enlisted man's discharge, "from a naval standpoint, " nevertheless, when a question of paj^ing travel allowance to such man is pre- sented, he may decide that a man discharged by the naval authorities on account of expira- tion of enlistment, was, '^for the purposes of such payment" not so discharged; that ''even though in terms a discharge by reason of expi- ration of enlistment, and properly so from a naval standpoint, it may for the purposes of this office be regarded otherwise." But see 21 Comp. Dec, 539, noted below, under "(B);S'ec- retary of War"; and see 28 Op. Atty. Gen., 83, holding that when the Navy Department in discharging a man determines the character of his discharge, "the executive branch of the Govermnent thereby becomes functus officio." Secretary's discretion not reviewable. — It is not for the court, and it is not for the accounting officers, to say how much or how little shall be allowed to a naval attache from the appropriation for ' ' maintenance of students and attaches and information from abroad." There being no limit in the statute upon the amount of maintenance which may be allowed, that amount is necessarily within the exclusive jurisdiction of the Secretary of the Navy. The appropriation is in the nature of a contingent fund, to be disbursed by the Secretary of the Navy in his discretion, which is not subject to judicial review. (Dyer v. U. S., 37 Ct. Cls., 340.) An order of the Secretary of the Navy, ap- pointiiig a retired officer of the Navy as meteor- ologist at a navy yard, to perform work ordina- rily performed by officers of the Navy, is the order of the President, and the officer is entitled to the salary prescribed by the Secretary of the Navy, from the appropriation for ' 'National Defense, " notwithstanding disallowance thereof by the accounting officers. The appropriation in ques- tion expressly provides that it is to be expended "at the discretion of the President. ' ' (Hayden V. U. S., 38Ct. Cls., 51.) Secretary's approval of travel claims. — When the Secretary of the Navy has approved an amount claimed as actually exj^ended for steward 's fees by a naval officer traveling abroad under orders, it must be treated as conclusive under the provisions of the act August 5, 1882 (22 Stat., 286), it being the practice to allow offi- cers of the Government reimbursement for such expenditures, as a necessary expense of travel abroad. As to the amount of the claim, inas- much as it has been approved by the Secretary of the Navy, it is clear that the accounting officers have no right to question the reasonable- ness of such amount, in \'iew of the act above cited; by the terms of the statute, the reason- ableness of expenses is left to the discretion of the Secreta»'y of the Navy, and when deter- mined by lum, such determination must be taken as conclusive. [The law cited provided that officers traveling abroad under orders shall receive, in lieu of mileage, "only their actual and reasonable expenses, certified under their own signatures and approved by the Secretary of the Navy."] (3 Comp. Dec, 121.) In a later decision, the Comptroller of the Treasury, con- struing this same act, held that it was intended merely as a safeguard against the allowance of unjust and exorbitant claims, and to place a Umit upon the jurisdiction of the accounting officers, and to preclude the allowance of any- thing not approved by the Secretary of the Navy; but that the accounting officers' jurisdic- tion remains unimpaired as to items and amounts approved by the Secretary; in other words, the accounting officers cannot allow any items not approved by the Secretary of the Navy; but they are not bound by his approval and may disallow items which he has approved. (14 Comp. Dec, 143.) The Secretary of the Navy 's approval or dis- approval of a claim, while entitled to great weight, is not conclusive upon the accounting officers in cases arising under the act of July 1, 237 Sec. 236. Pt.2. REVISED STATUTES. Treasury Department. 1902 (32 Stat., 602, 663), which provided that the Secretary of tl\e Na\-y may direct that actual and necessary ex]ienscs only be allowed to offi- cers performing travel repeatedly between two or more places. And the same tiling applies to ci\-ilian emplovees performing travel under the act of Afarch 3,' 1875 (18 Stat., 452). (14 Comp. Dec, 143. But see 3 Comp. Dec, 121, noted above.) The accounting officers are not bound by the approval by the Navy Department of traveling expense accounts of officers or employees of that department; nor are they bound by the disapproval by the Navy Department of such accounts, except in the case of officers of the Navy traveling abroad under orders. (14 Comp. Dec, 143.) The determination of the classes of expendi- ture to be allowed as traveling expenses is a proper subject for regulation by the head of the department, and where such regulations have been made they must ordinarily be regarded as controlling. (14 Comp. Dec, 143; see also 9 Comp. Dec, 156.) The approval by the Secretary of the Navy -was held not conclusive upon the accounting officers in cases arising under the act of March 30, 1898 (published in note to sec. 290, R. S.), which provided that "the account- ing officers of the Treasury shall in all cases require a schedule and affida\-it from each per- son making a claim " for losses incurred by the destruction of the U. S. S. Maine, "such schedule to be approved by the Secretaiy of the Na\-y." The Comptroller of the Treasury held that the requirement that such schedules be approved by the Secretary of the Navy seems not only to be entirely consistent with the exercise by the auditor of his usual func- tions in the settlement of accounts, but to be a wise and salutary safeguaid against the allow- ance of improper claims; that the reasonable construction of the act was that the schedule was required to be approved by the Secretary as a safeguard against the allowance of unjust and exorbitant claims arising from the fact that the accounting officers, without the advice and approval of the Navy Department, were not in position to judge so intelligently as to what articles were suitable and appropriate for an officer or enlisted man of the rank or rating and duty of the person by whom the claim was made; that the effect was to put a limitation upon the jurisdiction of the accounting officers and to preclude the allowance of anytliing not having the approval of the Secretary, but leav- ing their jurisdiction unuupaired as to items and amounts approved by him. While, there- fore, the approved schedule and affidavit of an officer making claim under said act, were held to constitute a prima facie claim as contem- plated by tlie act, it was further held that they were by no means conclusive upon tlie ac- counting officers, except to limit their jurisdic- tion to a consideration of the items and amounts so presented; that while the approved schedule and affidavit might be sufficient alone to jus- tify the allowance of a claim, the auditor was not concluded by them if in his judgment addi- tional proof M^as necessary and proper to a fair and just adjudication of the claim for which reimbursement was provided. (4 Comp. Dec, 587.) Approval of medical claims. — The deter- mination of the Secretary of the Navy that ex- penses of an officer of the Navy for medicines and medical attendance are incurred under cir- cumstances entitling liim to reimbursement (sec 1586, R. S.), is conclusive. Although the Surgeon-General of the Navy decUned to rec- ommend this allowance, the Secretary of the Navy has approved same, and this action of the head of the department must be regarded as binding upon all. (2 Comp. Dec, 241, citing U. S. r. Ehason, 16 Pet., 291, 302.) The approval of the administrative officer is prima facie evidence of the correct- ness of the items of the account; and in the absence of clear and unequivocal proof of mis- take on the part of such officer, it should be conclusive. (U . S. v. Jones, 134 U. S., 483, 488.) The date of appointment of an officer as specified in his commission, where such date is subsequent to the date of the vacancy he was appointed to fill, is conclusive upon the ac- counting officers, who have no authority to allow pay from a prior date. (9 Comp. Dec, 612, citing U. S. V. Vinton, 28 Fed. Cas. No. 16624, and 4 Op. Atty. Gen., 603. See act of March 4, 1913, 37 Stat., 892.) The action of the President, by and with the advice and consent of the Senate, in advancing an officer of the Navy on the retired list under the provisions of the act of June 29, 1906 (34 Stat., 554), is not conclusive upon the accounting officers where it subse- quently apjjears that the officer did not [in the opinion of the accounting officers] possess the qualifications necessary to entitle him to such advancement under the law. (14 Comp. Dec, 169.) [In this case, the question was whether the officer was retired for any of the causes mentioned in the act cited; the Comp- troller fiist held, April 30, 1907, that he was not; subsequently, on September 20, 1907 (14 Comp. Dec, 162), the Comptroller reversed his proA-ioua decision, and held that the officer was letired for disability originating in line of duty, wliich was one of the causes mentioned in the act under consideration; thereafter it was held by the Attorney General in a similar case, that he could not agree Avith the decision of the Comp- troller last cited, but coacmred in the opinion of the Judge Advocate General that the officer was not retired for disabiUty originating in line of duty (27 Op. Atty. Gen., 221). Thereupon, the Comptroller of the Treasury reopened the case and followed the opinion of the Attorney General, reversing liis own last pre^'ious deci- sion. 15 Comp. Dec, 584; 97 S. and A. Memo., 1004. This final decision of the Comptroller was upheld bv the Supreme Court in Morse v. U. S., 229U. S., 208.] Navy Department may decline to fur- nish information to accounting officers. — The Navy Department maintains that the pro- motion of officers of the Navy and the de- termination of all questions relating thereto, including the qualifications of the officer, the existence of the vacancy, and the application of section 1505, Revised Statutes, are matters exclusively within the jurisdiction of the Navy 238 Treasury Department. Ft. 2. REVISED STATUTES. Sec. 236. Department, whose action thereupon ia not sub- ject to review by any other executive depart- ment of the Government or office thereof. The Navy Department accordingly would not fur- nish the Auditor for the Navy Department with certain information which he requested for the evident purpose of reviewing and possibly over- ruling tlie action taken by the department in the case presented. (File 26260-347: C, Oct. 20, 1909.) In another case, the Navy Department de- clined to furnish the auditor with papers con- cerning a claim for payment of death gratuity under the act of May 13, 1908 (35 Stat., 128); holding that the law cited reposes the respon- sibility for payment of said gratuity in the Paymaster General, under the Secretary of the Navy; that accordingly the decision of the Paymaster General as to the facts involved is necessarily conclusive; and inasmuch as the facts in the particular case showed tliat the beneficiary named by the deceased was not entitled to payment, the matter was regarded as closed by the Navy Department's decision to that effect, which was not subject to review by the Auditor for the Navy Department. It was also asserted in this case that the account- ing officers have no jurisdiction to consider a claim for payment of death gratuity until the Paymaster General has acted upon and allowed same; and when a claim is allowed by the Pay- master General, this establishes claimant's right and he is entitled to demand payment without being required to establish his claim anew to the satisfaction of the accounting officers. (File 26543-66, Sept. 8, 1911; compare 22 Comp. Dec, 532; file 26543-148; see also 20 Comp. Dec, 93.) The policy of the Navy Department has been to disapprove the submission to the Comptroller of the Treasury of specific ques- tions involving administrative matters under its own jurisdiction, and the department has not been inclined to invite controversy by spe- cifically requesting his decision upon questions which the law places under the cognizance of the Secretary of the Navy. (File 11112-476, Feb. 20, 1915.) The Comptroller's decision upon a ques- tion of law involved in the settlement of accounts under his cognizance, is not binding upon the Navy Department in taking action upon matters under its cognizance, even though the identical question of law may be involved. There are many authorities to this effect. (File 26254-1451:11, Apr. 12, 1915, citing cases.) Comptroller's decision as to validity of a Navy regulation held not binding on the Navy Department, but said regulation is bind- ing on the accounting officers (30 Op. Atty. Gen., 376, 171 S. and k. Memo., 3611, noted under sees. 161 and 285, R. S.) A paragraph in the " Regulations Governing the Organization and Administration of the Naval Reserve Force, 1917," article 406, chap- ter 4, authorizing enrollment of aliens who are citizens of countries friendly to the United States and who have declared their intention to become citizens of the United States, held inconsistent with law and men enrolled in ac- cordance therewith not entitled to pay and allowances. (Comp. Dec, Oct. 29, 1918, file 28550-470:3.) This decision modified and the regulation in question held to be valid as being specifically authorized by act of May 22, 1917 (40 Stat., 84), overlooked when said regulation was held to be invalid. (Comp. Dec, Nov. 1, 1918, file 28550-470:5.) Citizenship of enlisted men. — Where the Bureau of Navigation decided, after considera- tion of all the evidence in the case, that a Chinaman who was an enlisted man in the Navy, was a citizen of the United States, and changed his birthplace and citizenship on the department's records accordingly; and the Auditor for the Navy Department, upon a ques- tion of pay, decided, after consideration of the same eviclence, that it was not sufficient to establish the fact of his birth in the United States; it was held by the Navy Department that the decision of the accounting officers is not in any sense binding upon the Navy De- partment in its determination of the citizenship or identity of an enlisted man, and that no new evidence having been obtained, the decision of the Bureau of Na\agation would not be reopened. (File 26252-56, Feb. 1, 1910.) [Subsequently the Comptroller of the Treasury reversed the auditor's action upon considera- tion of the same evidence. (Comp. Dec, Mar. 12, 1910, file 26254^24.)] Status of personnel question under Navy Department. — The Navy Department regards the status of an officer of the Navy, under his orders, as a question of fact for its determination, and not that of the accounting officers. (See 12 Comp. Dec, 563, 566; 9 Comp. Dec, 826; 29 Ct.Cls.,403; 16 S. and A. Memo., 145.) Accord- ingly, held that, upon the facts stated, an officer of the Navy was not detached from his vessel while in a naval hospital under treatment. This being so, he clearly comes within tlie decisions of the Comptroller of the Treasury and the Court of Claims, which entitle him to sea pay when not detached from his vessel, and a decision of the Comjatroller of the Treasury in the specific case was not necessary. (File 26254-2, Apr. 29, 1908. See also 21 Comp. Dec, 539, noted below under "(B) Secretary of War." "If men are properly enlisted in the naval service, it is not material to the accounting officers in the settlement of their pay and allow- ances whether they are at all times lawfully . engaged or not. That is a matter to be regu- lated by the Navy Department, and even though enlisted men be employed in service forbidden by law it is beyond the power of the accounting officers to withhold the pay and allowances which the law prescribes. The legality of such service can become material to the accounting oflicers only where the enlist- ments are made solely for such illegal purpose, and then only in passing upon the payments made under said enlistments." (6 Comp. Dec, 758.) Comptroller can not reheve officers of duty to obey orders. — Officers of the Navy must at all times be governed by orders of the Navy Department, and the Comptroller of the Treasury has no jurisdiction to authorize a disre- 239 Sec. 236. Pi. 2. RE VISED STAT UTES . Treasury Department. gard of such orders. The Na\-y Department having, by special order, limited the allowance to officers of travel, an officer performing travel igoverned by such order is guilty of impropriety in requesting the Comptroller ot the Treasury to authorize him to exceed the allowance so fixed. Uis letter, which was addressed to the Comp- troller through official channels, was accord- ingly placed on file in the Navy Department wiiljout reference to the Comptroller of the Treaaury. (File 26254-58, June 27, 1908.) The Navy Department fully understands that officers have a right at all times to make claim upon the auditor for any sums to which they may consider themselves legally entitled, and upon the auditor's disallowance to appeal therefrom to the Comptroller of tlie Treasury, the right of a pay officer in this respect being neither greater nor less than that of any other officer of the Navy. However, in cases where the officer has been guilty of direct disobedience of or negligent failure to comply with a lawful order of the Secretarj/ of the Navy, it is obvious that the accounting officers can no more relieve him from responsibility for his conduct than they could in advance authorize a disobedience of such order. When an officer has been in- formed to this effect by the Navy Department, his action in thereafter taking the matter up with the accounting officers was not merely an impropriety on his part but was conduct indica- tive of a disposition to insubordination. (File 26251-3352:1, July 14, 1910.) [In this case the officer failed to comply with a general order requiring him to check the value of clothing outfit against an enlisted man on discharge. It was held by the Navy Department that under the law full discretion was conferred upon the Secretary of the Navy as to whether or not clothing outfit should be checked on discharge, and that the Comptroller of the Treasury had no jurisdiction to relieve a pay officer from responsibility for failing to check the value of clothing outfit when required so to do by the Secretary of the Navy.] The accounting officers can not require a disbursing officer of the Navy to make a payment. Such power is possessed only by the officer's superior. (File 26543-66, Sept. 8, 1911; see also sec. 285, R. S.; Smith v. U. S., 24 Ct. Cls., 215; 10 Comp. Dec, 635.) Questions pertaining to the correct pay and allo"wances of officers of the Navy are placed by law under the jurisdiction of the accounting officers of the Treasury, and do not in general come under the cognizance of the Navy Department, which can not with pro- {)riety express an opinion upon a question simi- ar to one pending before the Comptroller. (File 26254^599, Jan. 4, 1911.) If there is a balance due to officers of the Navy, the matter is one for adjustment between them and the accounting officers. The Navy Department can not be regarded as having such an interest in the adjustment of individual accounts as to warrant its appealing to the Comptroller of the Treasury in such cases, and feels that to do so in certain cases would set a bad precedent, following which numerous indi- vidual officers might thereafter endeavor to have the Navy Department prosecute their claims. [Letter, August 19, 1912, file 26254- 1003, to the Auditor for tlie Navy Department, in reply to the latter's suggestion that the Secre- tary of the Navy appeal to the Comptroller of the Treasury for revision of certain accounts in which errors in calculation were made, and the Comptroller had declined to make revision on his own motion at the suggestion of the au- ditor.] The Navy Department can not be regarded as having such an interest in the adjustment of individual accounts as to warrant an appeal to the Comptroller of the Treasury; the matter is one for adjustment between such individuals and the accounting officers. (File 26254-431:1, May 4, 1910.) (B) Secretary of War. The decisions of the War Department should be regarded by the Treasury De- partment as estabHshing matters of fact concerning the military relations which exist between the Government and the officers; but upon the facts as thus determined by ttie War Department, all questions of law involving the financial relations existing between the Gov- ernment and the officers, and the financial obligations of the Government to the officers must be determined and decided by the ac- counting officers of the Treasury. (Parkhurst ■y. U. S.,29Ct. Cls.,403.) The records of the War Department (apart from opinions and conclusions of the officer having the custody thereof) are the best evidence of an officer's status in the service; but if the record does not disclose the facts essen- tial to the accounting officers administering the law they may accept from other sources the necessary competent evidence. (Northrup v. U. S., 45 Ct. Cls., 50; see also Brewington v. U. S., 39 Ct. Cls., 399; and act Apr. 19, 1910, 36 Stat. 324, making "the decision of the War Department" conclusive in certain cases.) It is the province of the War Depart- ment to decide military questions which relate to the cause or manner of severance from the service of officers and enlisted men of the Army; and where that department has deter- mined as a fact that an officer's services ended by the acceptance of his resignation the record of that fact will be accepted as correct by the Comptroller of the Treasury in the adjustment of the claim for pay and allowances in case of the officer. (21 Comp. Dec, 539.) "It is peculiarly the province of the War Department to make deductions of fact from the records of miUtary service of which that department is the natural and legal custodian, and to decide mihtary questions which relate not only to the entrance into service but also the cause or manner of severance from service of officers and enUsted men." (21 Comp. Dec, 539, 547.) Reason or wisdom of orders to officers cannot be reviewed by accounting offi- cers. — Where the accounting officers held that the War Department had no authority to send a surgeon to the International Medical Congress at London at the expense of the Government, this decision was reversed by the Court of 240 Treasury Department. Pt.2. REVISED STATUTES. Sec. 236. Claims, which held that the President himself, or tlirough the War Department, may direct the movements of all officers of the Army, and to whatever place and on whatever business connected with the military service he may order them to proceed, they are bound to obey, at least when such order is not forbidden by law. And in such case the officer is entitled to mileage. It is not for the accounting officers to inquire into the reasons nor to take excep- tions to the expediency and wisdom of the orders of the President or of a department when issued within the scope of thair authority. Section 191, Revised Statutes [act JulySl, 1894, section 8 (28 Stat., 208)], relates only to matters of accounting in the Treasury Department and of ascertaining the balance in each particular account which shall be drawn for the Treasurer. Before the enactment of the provisions of that section, it had been the practice of the Presi- dent and the heads of departments to interfere and give directions to the accounting officers in the matter of settling accounts, and to change or attempt to change the balances stated by them. The accounting officers re- sisted the practice, and the controversy, in different forms, was several times referred to the Attorney General, who advised that the President was without such authority, but that the heads of departments, especially the Secre- tary of the Treasury, did have the power from the nature and general duties of their offices. (Citing 1 Op. Atty. Gen., 624, 678, 705; 2 Op. Atty. Gen., 303, 652; 5 Op. Atty. Gen., 87, 630.) The act was passed apparently to settle con- clusively that long standing controversy between executive officers, and to prevent the interferences of others in the settlement of accounts by the accounting officers. (Citing McKee's Case, 12 Ct. Cls., 554.) It makes con- clusive upon the executive branch of the Government only the "balances" stated by the latter officers, and their "decision thereon, " for the purpose of determining for what amounts, if any, warrants may be drawn on the Treasury. It does not make such decisions conclusive upon the head of a department in the exercise of his discretion as to ordors to be issued to his subordinates in such connections as the one now under consideration. (Billings v. U. S., 23 Ct. Cls., 179; file 26254-1451:11, April 12, 1915.) The accounting oflB.cers are not author- ized to inquire into the -wisdom, expediency, or necessity of assigning an officer to a com- mand above that pertaining to his grade; but it is within their authority to inquire whether the order of assignment to higher command was carried into effect according to law, and to what extent the officer performed the service to which he was assigned. (Glenn v. U. S., 37 Ct. Cls., 254.) Legal acts of Secretary are conclusive. — Whatever may be the legal prerequisites of brevet commanders in the Army, their exist- ence is to be presumed from the order or decision of the Secretary of War assigning or determining those commands. That being a legal presumption is conclusive, and the fact must be regarded by the Auditor and Comp- troller as established by and according to the Secretary's decision and orders. Acts done by the Secretary of War within the peculiar and legitimate .sphere of his olficial duty are to be taken and Tinderstood as rightly done, and to preclude all collateral inqiiiry by ac- counting officers. (5 Op. Atty. Gen., 386, quoted approvingly in Billings v. U. S., 23 Ct. Cls., 179.) Army Regulations binding on account- ing officers. — Army Regulations issued pur- suant to the explicit provisions of a statute, and in execution thereof, when sanctioned by the President, have the force of law, and are conclusive upon tlie accounting officers of the Treasury; accordingly, when an officer of the Marine Corps presents with his account an authentic document or certificate of his having commanded a post or arsenal, for which an order has been issued from the War Depart- ment in conformity with the provisions of the Army Regulations, allowing double rations, his right to them is established, nor can they be withheld without doing him a "wrong for which the law gives liim a remedy. (U. S. v. Free- man, 3 How., 566. ) For other decisions concern- ing executive regulations, see note to section 161, Revised Statutes. Accounting officers refused to allow compensation for expert employed by authority of Secretary of War at a trial by coiurt-martial. It was held by the Court of Claims, that the employment of experts before a court-martial is within the legal and proper discretion of the Secretary of War; and his order to employ and pay them is official au- thority to an officer who, in the ordinary dis- charge of his duty, makes such payments, and protects him from the summary remedy of having his pay stopped. (In re Maj . William Smith, 24 Ct. Cls., 209.) The accounting officers have no juris- diction to review a decision of the Secre- tary of War that a soldier did not serve honestly and faithfully. Except in cases of deserters, the act (June 16, 1890, 26 Stat., 157), makes tlie Secretary of War the judge as to what misconduct shall constitute a failure to render honest and faithful service within the meaning of the laws relatir^ to retained pay therein specified. The Secretary of War hav- ing decided that a soldier did not serve hon- estly and faithfully, he is not entitled to the retained pay therein specified. (3 Comp. Dec, 557.) The accounting officers have no authority to review the action of the War Department re- fusing to discharge a soldier for disability and reqiuring him to piu-chase his discharge as a condition precedent to his release from the service, prior to the date on which he was entitled to his discharge. (2 Comp. Dec, 546.) In the absence of fraud or plain error, a finding by the military authorities as to the cause of disease and the period of absence from duty on account thereof, is conclusive upon the accounting officers with reference to stop- page of pay in the accounts of an officer or enlisted man so absent. (20 Comp. Dec, 69.) The powers of the Secretary of War, and the authority which had been attempted to be exercised by subordinate officers of other 241 Sec. 236. Pt. 2. REVISED STATUTES. Treasury Department. departments of reviewing anil overruling the decisions of the Seeretaryof War upon military questions and matters arising in the adminis- tration of the War Department, were con- sidered at some length in War De])artment Circular of November 2, 1901 ; and the decision of the Secretary of War (^^r. Root) was stated therein as follows: "The department will not hereafter furnish copies of records or statements from them to enable ofhcors or em])loyeea of other executive departments to review de- cisions made by the War Department upon ])urely military questions, or to make indepen- dent decisions with regard to such questions." [This decision of the War Department was quoted by the Navy Department, October 20, 1909 (fde 26260-347:0), and September 8, 1911 (file 26543-66), in cases in which the Auditor for the Navy Department requested information for the evident purpose of reviewing and possi- bly overruling decisions of the Navy Depart- ment upon questions of a purely military na- ture.] The War Department does not find it necessary or desirable to decide for the infor- mation of the Comptroller whether a former officer of the Army is regarded as having left his command without jDroper authority, when the records disclose that the War Department had previously determined that the officer's service terminated by acceptance of resignation, and that this decision was not followed by the auditor. (21 Comp. Dec, 540.) The promotion of a civilian employee by the Secretary of War is not ordinarily open to question, but where it is patent upon its face that the increase of pay was to be tem- porary and merely for the purpose of accom- plishing indirectly something that could not be accomplished directly, namely, to antedate an increase of paj', the accounting officers are war- ranted in refusing to recognize such promotion ashaving any legal effect. (23 Comp. Dec, 6.) {C) Miscellaneous. Approval of expense accounts. — Where the execution of a statute is committed to the head of a Department, subject to the President's ajiproval of rules and regulations prescribed pursuant thereto, with no other restriction than that certain expenses be proper and necessary and approved by the Secretary, held that the ap])roval of the Secretary of an account of ex- penses pursuant to said act is conclusive evi- dence that they were proi>er and necessary, unless it appears that their allowance was pro- cured by fraud, or that they were incurred in violation of an act of Congress or of public policy; and that, if the law be held to require that the accounts be audited and ])assed by the accounting officers, then in auditing those ac- counts they would have been bound to regard the action of the Secretary in allowing certain expenses, as final. (U. S. v. Johnston, 124 U. S., 236, 252.) It is impossible to suppose that Congress intended that every account, after being approved by the Secretary, should be sub- ject to review by some subordinate officer of the Treasury, or even by the courts, and to be disallowed merely because in the judgment of that olUcer or of the courts, such expenses should not have been incurred. (U. S. v. John- st«m, ]24U. S., 249,250.) Under a law providing that accounts of chief supervisors of elections were to be api>roved by the circuit or district court, such approval determines the fact that the services were necessary and proper, and of a character sufficient to entitle the officer to the fee pre- scri])ed by law for such services; but such ap- proval of the court does not establish the accu- racy of the accoinit, nor take it, as an account, out of the supervision of the accounting officers whose duty still remains to examine it, revise it, verify its calculations, scrutinize its ^•ouch- ers, and ascertain its true amount; nor will the approval of the court render the Government liable, either before the accounting officers or in the Court of C laims, for a service or expenditure not authorized by law. (Dennison v. U. S., 25 Ct. Cls., 322. )_ But the approval of the court in such a case is prima facie e\'idence of the correctness of the items of the account; and in the absence of clear and unequivocal proof of mistake on the part of the court, it should be conclusive. (U. S.r. Jones, 134 U.S., 483,488.) Discretion of Secretary not review- able. — Where Congress intrusts to a public officer the expenditure of a sum of money for a designated purpose, without restriction or limi- tation as to details, the exercise of judgment and discretion by such officer cannot be re- viewed by the accounting officers or the courts, for the mere purpose of determining whether or not the authority was exercised in the most judicious manner. If the officer acts in good faith, keeps within the general scoi>e and au- thority of the law, and does not undertake to apply the money tx) other and wholly different purposes from those designated in the act of appropriation, his action cannot be questioned in the final settlement of the accounts, espe- cially as against an innocent employee who, though bound by the law, has no discretion to exercise over the ^iropriety of the orders of his employers. (Plummer y. U. S., 24Ct.Cls., 519.) It is the theory, and a wise one, upon which the final adjustment and settle- ment of accounts in the Treasury Depart- ment is founded, that the officers who pass upon them shall be wholly distinct from those who expend the money or incur the liabilities. For the manner in which these latter officers perform the trust imposed upon them, they alone are resptmsible; the Com])trolIer is only charged with the duty of seeing that they keep within the latv. (Waters -y. U. S. , 21 Ct. Cls., 38, citing Longwill's Case, 17 Ct. Cls., 288; Ridg- way'sCase, 18 Ct. Cls., 715; etc.) The Comptroller of the Treasury has no power to review, revise, or alter items ex- pressly allowed by statute, nor items of ex- penditure or allowances made upon the judg- ment and discretion of other officers charged with the duty of expendmg the money or of making the allowances. His duty extends no further than to see that the officers charged with that duty have authorized the expenditures or have made the allowances. (U. S. v. Waters, 133 U. S., 215; followed 17 Comp. Dec, 263.) 242 Treasury Department. Pt.2. RE VISED STAT UTES . Sec. 236. [This statement of the power of the Comptroller applies as well to the Auditors, who also have no power to disallow an item when the question involved in the expenditure is one committed to the judgment and discretion of the head of the Department. 2 ('omp. Dec, .330.] The duty of the accounting officers in respect to pensions is to audit the accounts relatbig to them, and to certify the balances. But this does not require that they shall take from the Commissioner of Pensions the juris- diction with which the law clothes him to con- strue and administer the pension laws, or inter- fere with his instructions to pension agents. On the contrary, thev are bound to conform to his decisions. (17 Op. Atty. Gen., 339, 340; 20 Op. Atty. Gen., 178.) The propriety of keeping every branch of the executive government within its legal sphere is clear. The confusion which would unavoidably arise, if one branch was per- mitted to usurp the functions of another, would be disastrous to the proper working of the whole. When, therefore, a '• difference of opinion" arises between several executive departments as to the construction of the law, the primary question is as to which is vested with the deter- mination and responsibility of the question. That one only can ha^e jurisdiction over the subject-matter is plam. (20 Op. Atty. Gen., 178, 180.) Whenever a statute gives a discretion- ary power to any person, to bo exercised by him upon his own o])inion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts. In such a case, the courts must ordinarily assume that discre- tion conferred ujjon the officer was properlv exercised. (Mullan v. U. S., 140 U. S., 245; Martin v. Mott, 12 Wheat., 19, 31.) It is fully recognized by the accounting officers that where a particular power or discre- tion has been conferred upon the head of a department or other officer, either by express law or by necessary implication, his acts within the scope of that power, or in the exercise of that discretion, if not prohibited by law, can not be set aside or called in question, either by the accounting officers or by the courts. (5 Comp. Dec, 410, 416; 14 Comp. Dec, 143.) W^here the law (sec 4577, R. S.) makes it the duty of consular officers to provide subsistence and transportation for destitute seamen, the question whether an American seaman is or is not destitute within the meaning of the law is one to be determined by the consular officer to whom he applies for relief, and tlie latter's de- cision will, in the absence of fraud, be con- clusive; and it is not within the power of the accounting officers to overrule his determina- tion of that fact. (3 Comp. Dec, 40; 26 Op. Atty. Gen., 631.) Where an act of Congress vests in the Secretary of the Interior authority to deter- mine the method of disbursing money due to Indians, either by paying them in cash or "by expending the same for their benefit, in such manner as he may deem for their best inter- ests," and the Secretary has made such deter- mination, all other officers are bound by this exercise of power by him. (2 Comp. Dec, 642.) When the Secretary of the Interior in the exercise of a reasonable discretion determines as to the validity of title to rights and property to be acquired by him under the provisions of law, his decision is conclusive upon the ac- counting officers. (12 Comp. Dec, 691.) When the head of a Department ap- proves a voucher for the traveling expenses of an employee at sea, containing items for wine or carbonated waters used for the specific pur- pose of controlling seasickness, and not merely as a beverage, with knowledge that the liquids are so used, the amount thereof must be allowed. It is for the head of the Department to deter- mine ^\dtllin his discretion whether such items are a necessary expense of travel under the circumstances. (1 Comp. Dec, 404.) When an item is properly payable from an appropriation for contingent expenses, and is not prohibited by any law or regulation, the discretion of the officer charged with the duty of expending said fund is not subject to review by the accounting officers upon any question as to the necessity or adAdsability of his expenditures. The responsibility for in- curring an expense, as to the necessity or ex- pediency of wliich opinions may differ, must be assumed by the officer under whose control the appropriation is put. [The question in this case related to purchasing portraits of his predecessors for the office of a public officer. The Comptroller said: " I know of no provision of lawprohibiting the purchase of poi'traits or pic- tures for your office. The responsibility for the payment of this bill, as an incidental expense of youroffice, restswithyou."] (2Comp. Dec, 80.) In the absence of any law or regulation fixing the amount which may be allowed for the expenses of a secret agent, the matter is entirely within the discretion of the Post- master General in the management of the postal service; and his decision as to the amount of expenses, when that discretion is properly exercised, is conclusive upon the accounting officers of the Treasury. (2 Comp. Dec, 336, citing U. S. -y. Waters, 133 U. S., 208.) Where a statute provides that "heads of Departments shall cause this rule to be enforced," it is made their duty, and not that of the accounting officers, to determine questions of fact arising thereunder. (20 Comp. Dec, 10.) It has frequently been urged upon the accounting officers that it is their duty to recognize the action of the heads of Departments in approving claims as con- clusive. (14 Comp. Dec, 143.) The general provision of law governing the manner of set- tling claims against the Government is found in section 236, Revised Statutes. Such being the general law upon the subject of the settlement of claims against the United States, special acts, according to established rules of inter- pretation, must, if possible, be coiiistrued in harmony therewith. It is not to be supposed that Congress intended to repeal or modify the general law by implication. Such an inten- tion should clearly appear by apt words to that end, or by necessary intendment. A\Tien it is designed to vest in some officer the power of determining certain questions of fact, it is usual to eniploy clear and unmistakable words 243 Sec. 236. Pt.2. REVISED STATUTES. Treasury Department. to convey that intention. Where the approval of an expenditure is intended to be binding upon the accounting officers it is usual to so state. \\Tiero no such intention is expressed, the mere ap])roval by an administrative officer carries ■with it no such conchisive force. When a statute designates an officer to determine some question of fact, and expressly or by neces- sary implication shows that such determina- tion is to be conclusive, the validity of such action, in the absence of fraud, can not generally be questioned by officers of another depart- ment of the Government; and this is also true where the matter is one involving the exercise of discretion vested in an administrative officer. But in the determination of facts arising in the ordinary course of business in the several execu- tive departments, the decisions of the adminis- trative official, though of great weight, are not regarded by the accounting officers as conclu- sive. The opportunity for administrative offi- cials to pass intelligently upon questions of fact arising in their department^ is much greater than is that of the accounting officers, and it has accordingly been the purpose of legislation upon the subject of accounts to thi-ow upon the administrative officers the burden of making such decisions. But tliis is far from admitting that the accounting officers are relieved of the responsibility of inquiring for themselves into the facts of any particular case. Claims bearing the approval of adminis- trative officers and heads of departments are frequently disallowed. The approval of the head of the department does not control the action of the accounting officers, except to cause a disallowance of an expenditure not so approved, if such approval is required by law. (4 Comp. Dec, 587.) Items of expense bearing the approval of heads of departments are disaUowed every day by the accounting officers. The latter are required to examine accounts to see if the expenditures are allowed by law. If of such a character that the approval of the head of department is essential, items not ap- proved are promptly disallowed. Only in rare instances, and when so provided by law, is the approval of the head of a department final and conclusive upon the accoimting offi- cers. Congress has provided that the approval of vouchers for its contingent expenses shall be final and conclusive, and that the certificate of the Speaker of the House of Representatives as to salary and mileage shall be final. When it is intended that the accounting officers shall not examine and audit accoimts upon their merits — that is, determine questions of law and of fact arising therein — plain language can be and is employed by Congress. It is not to be understood that the Comptroller will refuse to give to the approval of the head of a depart- ment or of an independent commission that effect wliich is contemplated by law. Ordi- narily that approval is conclusive as to the propriety of expending an appropriation for the purpose for which it is applicable. Nor does the Comptroller in an ordinary case question the necessity for travel made by an employee or the reasonableness of expenses incurred for subsistence, etc. But when the proper execu- tive officer fixes a limit to such expenses, no employee's voucher for a greater amoimt will be passed, unless the regulation is waived by the one who made it. (4 Comp. Dec. , 270, 271.) Nothing short of a clear intent, un- equivocally expressed in a statute, will warrant a court in holding that Congress has intended to create an extraordinary exception to the accounting system of the United States, where no need of such exception exists and where none is in terms declared. (Dennison v. U. S.,25Ct. Cls., 321.) Evidence required. — The accounting offi- cers are charged with the duty of settling the public accounts. The cliaracter and quantity of evidence needed to establish a fact must be determined by them; otherwise, the conclu- sion reached, which is "final and conclusive upon the executive branch of the government," will be in effect that of the officer who decides what evidence shall go to them. (20 Comp. Dec, 93.) It is understood so generally as hardly to need a statement now, that the accounting offi- cers do audit the public accounts upon the evi- dence furnished largely by the certificates of fact made by responsible government officers. But with very few exceptions, made by law, the certificate or approval of an officer is not intended to be conclusive upon the accounting officers. The latter must render a decision upon the legality of a claim for payment or for credit in an account, upon the facts. Upon them is cast the responsibility for securing the facts. Upon other officers is the duty of fur- nishing upon request such evidence, in addi- tion to certificates, as may be called for by the accounting officers. This right to call for evi- dence is inseparable from the duty to audit and to decide questions of law and of fact. It must be exercised reasonably, as must any public duty, but the accounting officer, and not an administrative officer incurring liabilities or expending the public funds, must determine the extent to which it is necessary to go in any particular case in collecting the evidence to establish what he believes to be an essential fact as a basis for decision. (20 Comp. Dec, 93.) In the expenditure of all public moneys it is the invariable rule to require that ac- counts shall be furnished itemized as far as practicable, in order that the accounting offi- cers may properly audit them. The law may permit the exercise of discretion in the use of public funds, without dispensing with the usual requirement of an itemized account show- ing fully for what purposes the money has been expended. (4 Comp. Dec, 159; 4 Comp. Dec, 271.) VI. Set-off. Duty of accounting officers. — \Vhere a person is both debtor and creditor of the United States in any form, the officers of the Treasury Department in settling the accounts not only have the power but are required, in the proper discharge of theh* duties, to set off the one in- debtedness against the other, and to allow and certify for payment only the balance found due on one side or the other. Provisions on this subject are contained in section 1766, Revised 244 Treasury Department. Pt.2. REVISED STATUTES. Sec. 236. Statutes, and act of March 3, 1875 (18 Stat. ,481) ; but the right to set off exists in such cases inde- pendently of those special statutory enactments, and is founded upon what is now section 236, Revised Statutes. (Taggart v. U. S., 17 Ct. Cls.,327.) It may be regarded as settled law, in accord- ance with the uniform practice, that the ac- counting officers have jurisdiction, in proper cases, in the course of settling accounts in the Treasury Department, to set off one debt against another, when a claimant is both debtor and creditor. (McRnight v. U. S., 13 Ct. Cls., 306; affirmed 98 U. S., 179. See also The Schooner Henry, 35 Ct. Cls., 393; Bonnafon's case, 14 Ct. Cls., 489; Howe's case, 24 Ct. Cls., 170; Labadie v. U. S., 33 Ct. Cls., 476.) It is but the exercise of the common right, which belongs to any creditor, to apply the imappropriated moneys of his debtor, in his hands, in extinguishment of the debts due to him. (Gratiot v. U. S., 15 Pet., 336.) I understand it to be the duty of the officers of the Government to enforce this right, as is constantly done by the courts. (Comp. Dec, Apr. 23, 1908, 86 S. and A. Memo., 638.) [In this case the Comptroller held that the indebted- ness of naval court-martial prisoners should be set off against pay due such prisoners. In a previous decision the Comptroller based this ruUng upon section 1766, Revised Statutes, which provides in part that "no money shall be paid to any person for his compensation who is in an-ears to the United States." Subse- quently that section was construed by the At- torney General as applicable only to persons who were in a relation of trust to the Government, as contractors or disbursers of the pubUc funds, and as such would have in their hands sums or balances of the public funds for which they were bound to render accounts and to turn the balance of moneys into the Treasury; and that it did not apply to ordinary debtors of the Gov- ernment. (26 Op. Atty. Gen., 77.) This opin- ion of the Attorney General was brought to the Comptroller's attention by the Secretary of the Navy, in connection with the indebtedness of court-martial prisoners. The Comptroller, how- ever, in the decision above cited, adhered to his former conclusion, holdmg that the result was the same irrespective of whether or not the matter was covered by section 1766, Revised Statutes.] Extent of right. — The duty of the account- ing officers in matters of set-off has been fre- quently recognized by the courts. But it does not extend beyond the interest of the United States in matters involved in the settlements. In the absence of statutory authority, neither the accounting officers of the Treasury nor any other public officer can make the United States agents or trustees for the collection of private debts between citizens, nor make contracts in relation to the taking of security for the pay- ment of debts due to the Government so as to bind the United States for any breach of the contract by neglect or otherwise. (Taggart v. U. S., 17 Ct. Cls., 327.) [In this case it was held that where the debtor assigned to the Gov- ernment as collateral security for his debt, a judgment against a third person to whom the Government was indebted in a larger amount, the accounting officers were not bound to collect the whole amount of the judgment and pay the balance to the claimant; but performed their full duty in setting off against the Government's indebtedness to the third person so much of said judgment as was necessary to discharge the in- debtednessof theclaimantto the United States.] Where a judgment creditor assents to the ap- plication of the amount of his judgment, or a part thereof, to the payment of a debt due from him to the United States, the action of the Auditor in settling his accounts accordingly will not be disturbed upon a subsequent objec- tion by him to such action, (7 Comp. Dec, 585; act Mar. 3, 1875, 18 Stat., 481.) Allowances made by mistake of law. — The Government has authority to withhold money due an officer of the Navy to whom an erroneous payment has been made, notwith- standing that the payment was found to be en'oueous only upon a construction of law made after the settlement of an account in which pay- ment was allowed. (8 Comp. Dec, 24, citing Wis. Cent. R. R. Co. v. U. S., 164 U. S., 190, 211; but see Hedrick's Case, 16 Ct, Cls., 103. For other cases, see below "VIII. Reopening op ACCOUXTS.") Gratuities. — Extra pay in the nature of a gratuity, due at the time of his death to an offi- cer of the temporary force of the Navy for the war with Spain, may be properly set off against a debt arising from an overpayment of pay to such officer, but not against a debt arising other- wise. [In this case the officer at the time of his death was entitled to the extra pay, but had not received it; however, any pay which he had received in excess of the amount to which he was entitled, was regarded as to that exteiit a prepayment of the extra pay.] (6 Comp. Dec, 353; explained, 8 Comp. Dec, 310; see also Sem- plei;. tJ. S.,24Ct. Cls., 422.) However, where extra pay in the natiure of a gratuity was granted by statute to officers of the Na\'y who served during the war with Mexico, and the statute specified the beneficiaries to whom the gratuity should be paid in event of the death of the officer before recei\dng same, held that indebtedness of an officer to the United States, even because of overpayments of pay, could not be set off against the gratuity due liis next of kin, the officer in this case ha\'ing died before the statute was passed and therefore not having acquired any right to the extra pay at the time of his death. Under such circum- stances the extra pay under the statute was in the nature of a direct grant to the officer's heirs. (8 Comp. Dec, 308.) "WTiere an appropriation was made to be paid to the administrator of a decedent's estate, said decedent having been an original sufferer from the French spoliations, the Secretary of the Treasiny was not authorized to withhold the amount of decedent's indebtedness to the United States, the appropriation having been made for the benefit of the next of kin of the original sufferer. (5 Comp. Dec, 866.) Indebtedness under a previous enlist- raent. — ^^^lere an enlisted man is discharged from the Navy in debt to the United States, and is subsequently reenlisted, the amount of his 246 Sec. 236. Pt.2. REVISED STATUTES. Treasury Department. indebtedness on discharge from the previous enlistment may legally be set-off against pay coming due liim under his current enlistment. (Comp. Dec, Apr. 7, 1914, 158 S. and A. Memo., 3037.) However, where a man is discharged from the Navy upon expiration of enlistment without having been fully checked the amount of a sximmary court-martial sentence, because of BufTuient pay not having accrued to satisfy the forfeiture, the amount of such sentence which remained unchecked at date of discharge, can not be set off against pay coming due the man under a subsequent enlistment in the Na\'y. His discharge from the previous enlistment operated as a remission of the unexecuted por- .tion of the forfeiture, and the man was not, therefore, indebted to the United States on that account. (Comp. Dec, Apr. 6, 1914, 158 S. and A. Memo., 3035; file 7657-241, June 26, 1914.) Where a man is paid all money coming due him under his current enlistment, without set- ting off hia indebtedness to tlie United States under a former enlistment, the pay officer is not liable to checkage if it appear that he had no knowledge of the man's indebtedness accruing under a former enlistment; and there were not sufficient facts to put him on his inquiry. Pre- sumption of indebtedness in such case does not arise from knowledge of former service, and it is not the duty of a pay officer in the Navy to in- vestigate upon reenlistment the account of a man under a previous enlistment. (Comp. Dec, Apr. 7, 1914, 158 S. and A. Memo., 3037.) Set-oflf of imadjudicated claim by the Government.— The salary of a public officer fixed by statute and indisputably due him, can not be withheld because of alleged indebt- edness by him to the Government, denied by the officer, and never adjudicated against him by any court. The officer in such case can re- quire payment of his lawful salary by man- damus proceedings, the question of his indebt- edness being a matter for judicial determination upon suit against him by the Government. (Smith 1). Jackson, 241 Fed. Rep., 747; affirmed 246 U. S., 388.) Set-off against Government. — An officer of the Government who has in his hands money of the United States is entitled to retain it by way of set-off where the United States are in- debted to such officer for fees of office; and on a motion made on the part of the United States to commit the officer for failure to pay over the money in his hands, he will be permitted to show that the United States are indebted to him, and if this be shown it is a sufficient cause why he should not be attached. (U. S. v. Mann. 26 Fed. Cas. No. 15716, per Marshall, Cir- cuit Justice. See also U. S. v. Ripley, 7 Pet., 24; compare U. S. v. Giles, 9 Cranch, 236.) VIl. Effect of Accounting Officers' Ac- tion. Conclusive upon Executive Depart- ments. — For a long series of years, extending from the first organization of the Treasury Department to 1868, there was a controversy as to how far, if at all, the balances and action of a Comptroller were subject to revision and change by the heads of departments or the President. Upon the advice of several Attor- neys General, the question was practically set- tled against the right of the President, aiid in favor of the Secretary of the Treasury. But the Comptrollers yielded with reluctance, and in 1868 an act was passed which was afterwards in- corporated into the Revised Statutes as section 191, which provided that the balances certified by the Comptrollers "shall be conclusive upon the Executive branch of the Government and be subject to re\dsion only by Congress or the proper courts." (McKnigh't v. United States, 13 Ct. Cls., 307, affirmed 98 U. S., 179; McKee V. U. S., 12 Ct. Cls., 553, reversed 97 U. S., 233.) The object of this law (sec. 191, R. S.) appears to have been to settle a long-standing contro- versy and render the Comptrollers independent in their action of the heads of departments in certifying balances of accounts, and not to give to the decisions of those officers the character of awards absolutely binding upon the United States. It will be observed that the inde- pendence of the Comptrollers provided for by that act only extends to the certified balances which cannot be changed or modified by other executive officers; but in all other mat- ters of accounting, the superiority of the power of the Secretary of the Treasuiy is not modified but is left as it was before . [Section 191 , Revised Statutes, was repealed and superseded by the act of July 31, 1894, section 8 (28 Stat., "208), which also provided that ' ' the Secretary of the Treasury may, when in his judgment the inter- ests of the Government require it, suspend payment and direct the reexamination of any account."] (McKnight^). U. S., 13 Ct. Cls., 307, affirmed 98 U. S., 179.) Before the enactment of the provisions of that section (191, R. S.), it had been the practice of the President and heads of departments to interfere and give directions to the accounting officers in the matter of settling accounts, and to change or attempt to change the balances stated by them. The accounting officers re- sisted the practice, and the controversy in dif- ferent forms was several times referred to the Attorney General, who advised that the Presi- dent was without such authority, but that the heads of departments, especially the Secretary of the Treasury did have the power, from the nature and general duties of their offices. (1 Op. Atty. Gen., 624, 678, 705; 2 Op. Attv. Gen., 303, 652; 5 Op. Atty. Gen., 87, 630). T?he act was passed apparently to settle conclusively the long-standing controversy between execu- tive officers, and to prevent the interferences of others in the settlement of accounts by the accounting officers. (McKee's case, 12 Ct. Cls., 554, reversed 97- U. S., 233.) It makes conclu- sive upon the executive branch of the Govern- ment only the "balances" stated by the latter officers and their "decision thereon," for the purpose of determining for what amounts, if any, warrants may be drawn on the Treasurer. It does not make such decisions conclusive upon the head of a department in the exercise of his discretion as to orders to be issued to his subordinates. (Billings v. U. S., 23 Ct. Cls., 179; see file 26254-1451:11; and see above, V (A)). 246 Treasury Department. Pt. 2. REVISED STATUTES. Sec. 236. The law devolves upon the accounting offi- cers of the Treasury the duties of examining, settling and adjusting all accounts, claims and demands in which the United States are con- cerned, either as debtors or as creditors, and to certify balances arising thereon, and their exercise of such duties, including the weighing of evidence, the construction of statutes, and the application of general principles of law in connection therewith, is exclusive unless other- wise provided by special statute. (14 Comp. Dec, 143.) [But see note to section 356, Re- vised Statutes, ' ' Jurisdiction, Accounting Offi- cers and Attorney-General."] ^^^lere the action of the Comptroller of the Treasury is final and conclusive upon the head of an executive department, the latter' s action in directing that the settled accounts be reex- amined bv a subordinate is of no validity. (Baltiniore&OhioR.Co.i'.U.S.,34Ct.Cls.,504.) The act of July 31, 1894, section 8, provides that balances certified by the auditors shall be '■final and conclusive upon the executive branch of the Government," except that a revision thereof by the Comptroller of the Treasury may be obtained within a year, "whose decision upon such revision shall be final and conclusive upon the executive branch of the Government;" and "that the Secretary of the Treasury may, when in his judgment the interests of the Government require it, suspend payment and direct the reexamination of any accoiint" (28 Stat., 207); the same section also authorizes the Comptroller of the Treasuiy to render a decision in advance of payments, "which decision, when rendered, shall govern the auditor and the Comptroller of the Treasury in passing upon the account con- taining said disbursement." (28 Stat., 208.) Not conclusive upon Congress or Courts. — The action of the accounting officers of an executive department was never con- sidered as a conclusive determination when the question was brought before a court of justice. The law intended to make the decisions of the accounting officers final and conclusive so far as the executive department was concerned, but not to affect the powers of the legislature or of the judiciary. The action of the account- ing officers is not conclusive in a suit between the United States and the individual. (U. S. t;, Harmon, 147 U. S., 274, 275.) Whatever the conclusiveness of executive acts so far as executive departments are con- cerned, as a rule of administration, it has long been settled that the action of executive offi- cers in matters of account and payment cannot be regarded as a conclusive determination when brought in question in a court of justice. (Wis- consin Cent. R. R. Co. v. U. S., 164 U. S., 205, citing U. S. V. Harmon, 43 Fed. Rep., 560, 147 U. S. 268; Hunter v. U. S., 5 Pet, 173; U. S. v. Jones, 8 Pet., 387; U. S. v. Bank of Metropolis, 15 Pet., 377.) Accounts and balances stated and certified by the accounting officers are neither conclusive nor prima facie evidence of the indebtedness of the Government, in a judicial proceeding, nor can an action be brought upon them. (McKnight's case, 13 Ct. Cls., 292; affirmed 98 U. S., 179.) A settlement of an account is not consum- mated and payment authorized until a warrant has been prepared and issued to the payee or his attorney; the different processes of accounting are not consummated beyond recall until the claimants receive the negotiable drafts of the Treasurer; such drafts are understood to con- stitute new contracts on the part of the Govern- ment, in which the previous claim, upon which they issue, are merged. The certificates and orders made previous to the issuing of the drafts are departmental proceedings. Parties gain no new rights thereby into which their former rights of action are merged, and upon which ac- tions can and must be brought as upon an award. Accordingly, held that a certificate of the Comptroller of the Treasury, certifying the amount of a l^alance due to a Government con- tractor, and a warrant addressed to the Treas- urer, duly countersigned and registered for payment of the same, did not constitute con- clusive e\'idence in a suit in the Court of Claims to recover an uni^aid balance of the original amount so certified to be due by the Comp- troller, but which was withheld upon order of the Secretary of the Treasury as a set-off on account of a debt due the United States. Further, held that the decision of the account- ing officers in favor of the claimant is not even prima facie evidence of indebtedness when suit is l)rought in the Court of Claims. The func- tions of that court are to hear and determine original claims and demands against the United States, founded on contract, statute, or De- partmental regulation, and not upon the reports and action of accovmting officers made for pur- poses altogether different from that of submis- sion to any court. Claimants are required to establish their rights in the Court of Claims by original and legal evidence, and are not to rely upon reports and certificates of officers who pass upon claims without the formality of such evidence and proofs as are required in courts of justice; certificates made upon ex parte affidavits, often of claimants and inter- ested parties; documents not proA^en under oath, and reports of other officers not sworn to, and other evidence satisfactory to them, and which under all the circumstances may be trustworthy to a greater or lesser extent, as is the unsworn and hearsay e\adence on which most of the business of daily life outside of the courts is conducted, but which may be wholly incompetent in the Court of Claims. The statement of accounts upon such evidence, by accounting officers who have no other knowl- edge of the facts, would he an unsatisfactory foundation on which to rest a prima facie case against the United States when parties come into court to set up and enforce their legal rights. (McKnight v. U. S., 13 Ct. Cls., 292; affirmed 98 U. S., 179.) [However, there are certain classes of claims, where the claimant's rights and the UabiUty of the United States are not fixed until the dis- cretion of some designated officer has been ex- ercised thereon, and an allowance made by him; in all these cases, the officer charged by statute with the duty of allowing or disallow- ing the claim in his discretion, or according to his judgment, must first act before the claim- , 247 Sec. 236. Pt.2. REVISED STATUTES. Treasury Department. ant's right is fixed. Then when claimant haa obtained a decision of such oflicer in his favor his demand, of which that decision is a prima facie if not conchisive determination, if the othccr acts within the scope of his authority and in accordance with the provisions of law, may be the foundation of an action in the Court of Clainis or may pass the accoimting olRcers and be paid by drafts upon warrant duly issued, as in other cases. (McKnighti;. U. S., 13 Ct. Cls., 308, 309 affii-med 98 U. S., 179; file 26543-66, Sept. 8, 1911.)] The idea that the Government is finally con- cluded by the result at which the accounting officers of the Government may arrive, would be regarded as a novelty within and without the several departments. (Chorpenning v. U. S., 94 U. S., 397.) In the case of an unliquidated claim against the United States, where such claim is settled by the accounting officers, and the claimant accepts payment under such settle- ment without objection, this ia a complete discharge of his demand against the Govern- ment, and he can not thereafter recover a fur- ther sum by suit in the Court of Claims. [In this case, there was a contract by which the Government was bound to pay in accordance with the terms agreed upon, but the entire price to be paid was not fixed, a part being contingent and being made to depend upon a variety of circumstances.] (Baird v. U. S., 96 U. S.,430.) In case of a liquidated debt or demand, part payment of the amount due cannot dis- charge the liability of the Government for the balance, any more than in similar transactions between individuals. (Baird v. U. S., 96 U. S., 430.) For other cases, see 'IV. Jurisdiction, Accounting Officers, and Federal Courts." VIII. Reopening op Accounts. (A) In general. (B) Mistake of fact. (C) Mistake of law . (D) Subsequent administration. (E) Same administration. See note to section 417, Revised Statutes, "Power of Secretary to review acts of pred- ecessor." The Secretary of the Treasury may, when in his judgment the interests of the Govern- naent require it, suspend payment and direct the reexamination of any account. (Act July 31, 1894, sec. 8, 28 Stat., 207.) Any person whose accounts may have been settled, tlie head of the executive depart- ment, or of the board, commission, or es- tablishment not under the jurisdiction of an executive department, to which the account pertains, or the Comptroller of the Treasury, may, within a year, obtain a re- vision of an account by the Comptroller of the Treasury, whose decision upon such re- vision shall be final and conclusive upon the executive branch of the Government. (Act July 31, 1894, sec. 8, 28 Stat., 207.) (A) In general. After the expiration of a year from the date of an auditor's settlement of an account, which has not been revised by the Comptroller of the Treasury, under the established rules for reopening accounts the auditor would be au- thorized to reopen his previous settlement upon newly discovered material evidence. (4 Conip. Dec, 303; 8 Comp. Dec, 24.) Where the account of a disbursing ofli- cer of the Navy has been settled by the accounting officers, it is not competent for the auditor at an after time, upon an allegation of error or omission, or for other cause, to open the account, restate it, and upon the account thus restated to institute proceedings by a war- rant of distress against the debtor. If, after the account had once been stated and closed, the accounting officers could open it again, there would be no limitation either as to the length of time or the frequency with which such ac- tion might be taken. Also, if it be competent to open the account in favor of the United States, the converse of the proposition must be equally true, upon the principles of justice. A doctrine which leads to such consequences can not be sound. The Government is not without ample remedy tliough this power should be denied to the auditor, as it could re- cover in an action at law any sums of which it had been unjustly deprived. (Ex parte Ran- dolph, 20 Fed. Cas. No. 11558, opinion of Barbom-, J., concizrred in by Marshall, Circuit Justice.) The accounts of paymasters never being closed, the accounting officers may secm-e im- mediate payment of balances due from them and yet open and readjust their accounts at any time. (Stevens v. U. S., 41 Ct. Cls., 344.) Similarly, the account of a retired oflH.cer is never closed from the date of his re- tirement. Overpayments made at one time by mistake can be corrected and properly charged against credits coming in afterwards. (U.S. v. Burchard, 125 U. S., 176.) No settlements are agreed upon as final between a contractor and the United States, where the contract relations still continue and have continued consecutively since the first overpayment; although it is true that accounts have been stated by the accounting officers and payments made quarterly. For the pur- pose of rectifying mistakes, the items of the several statements upon which the auditor certifies balances due for carrying the mails, ordinarily and in the absence of special cir- cumstances, may be regarded as running ac- counts, at least while the parties continue in the same dealings between themselves. (Du- val's case, 25 Ct. Cls., 46, 58; approved Wiscon- sin Cent. R. R. Co. v. U. S., 164 U. S., 190, 211.) (B) Mistake of fact. It is estabhshed by numerous decisions on the subject that where payments are made by a public officer in violation of law, but through nustake of fact as distinguished from mistake or error of law, the Government has a clear right to recover back the overpayment. (Du- val's case, 25 Ct. Cls., 58.) 248 Treasury Department. Pt.2. REVISED STATUTES. Sec. 236. (C) Mistake of law. 1. OPINIONS OF ATTORNEYS-GENERAL. 2. COURT OP CLAIMS DECISIONS. 3. DECISIONS OF SUPREME COURT. 4. MISCELLANEOUS DECISIONS. [In private dealings between individuals the general rule has been established that money paid with full knowledge of all the facts involved, but through a mistaken view of the law applicable to such facts, can not be recovered back, the rule being founded on the legal maxim "Ignorantia legis neminem excusat". In some cases it has been broadly stated that this rule applies to overpayments made by a public officer, the same as in the case of private parties; while in others it has been stated that upon grounds of public policy the rule has no application whatever to the Govern- ment, which can not be bound by the mistakes of its officers, whether of fact or of law. How- ever, an examination of the authorities will dis- close that the question whether or not the rule shall be applied to overpayments made by pub- lic officers has been governed by the facts of the particular case. Thus, where the circumstances are such that the one receiving the overpay- ment could not, ex aequo et bono, be required to refund same to the Government, the general rule has been applied ; while, on the other hand, when the situation was reversed, it has been held that the Government was entitled to re- cover back the amount of the overpayment. (See file 26254-2160:2, June 7, 1917, Sec. Navy to Comp. Treas.) [It is also settled that where the one receiv- ing the overpayment does not acquiesce in the settlement, but himself seeks to have the ac- count reopened and corrected to his advantage, the Government has the right, at the same time, to have corrected errors committed in the settlement, to its prejudice, although due to mistake of law. (See 2 Ency. U. S. Rept., 515.) [The decisions on this subject are set forth below.] 1. OPINIONS OP ATTORNEYS GENERAL. Where the Govemin.ent has voluntarily paid money in consequence of an erroneous construction of the law, _ adopted without due reflection and examination of the Treasury Department, I do not recommend that the claimant be called upon to refund the moneys he has received. I am accustomed to advise acquiescence in what is done as done. (6 Op. Atty. Gen., 568.) But if claimant insists on having his accounts opened to readjust them, with a view to correcting errors committed to his prejudice, it would be right, and the duty of the accounting officers, to correct at the same time any error committed to the prejudice of the Government. The effect of this will be that if the accounts are reopened at the instance of the claimant, the readjustment must be com- plete and legal in all its parts, and he may be called upon to account for the money which he has received heretofore by mistake of law. (6 Op. Atty. Gen., 576.) Where an account has once been duly adjusted, settled, and closed by the proper officers, with full knowledge of all the factsand where no errors in calculation have been made, it has been repeatedly held that it can not be reopened without express authority of law, and must be regarded as final and conclusive. No subsequent decision upon a doubtful or con- troverted question of law, essentially modify- ing a prevailing rule which was applied to the settlement of an account, would authorize the reopening of it, with a view to a readjustment of it in accordance wdth such decision. (12 Op. Atty. Gen., 386.) Upon principles of administrative pohcy which ought to be considered firmly estab- lished, settlements made between an officer of the Army and the accounting officers in the matter of his pay are conchisive upon the executive department of the Government; and such settlements can not be reopened years afterwards, upon the allegation that overpay- ments had been made to the officer with full knowledge of all the facts, but under a mis- taken view of the law, and that such overpay- ments should be recovered by set-off against allowances coming due and to which he is legally entitled. (17 Op. Atty. Gen., 448; fol- lowed, 19 Op. Atty. Gen., 439.) The principle that every one is assumed to know the law can be rehed on by the citizen in his defense when sued by the Gov- ernment for an overpayment made to him under a mistake of law; and the Government may equally rely on the same principle as a defense when sued by the citizen. Accordingly, a settlement of the accounting officers can not be reopened on application of claimant because of a subsequent decision of the Supreme Court holding the accounting officers' construction of the law to be erroneous. If it had happened that the claimant had , through a mistake of law of the accounting officers of the United States, been paid too much instead of too little, it would seem quite clear that the excess could not be recovered back, if the principle appli- cable to a similar case between individuals should govern; and the Supreme Court of the United States have said that, "with a few ex- ceptions, growing out of considerations of public policy, rules of law which apply to the Government and to individuals are the same. There is not one law for the former and another for the latter." (19 Op. Atty. Gen., 439, citing McKnightt'.U.S.,98U.S., 186.) A voluntary payment made with full knowledge of aU the facts and circumstances of the case, althoiigh made under a mistaken view of the law, can not be revoked and the money so paid can not be recovered back; this principle applies in the case where an officer of the Army was allowed a claim for ser^ace pay by the accounting officers, and the Supreme Court thereafter held all such allowances to be without authority of law. Afterwards the officer filed a claim for certain pay and allow- ances to which he was justly entitled, and it was proposed to set off against the amount of this claim the sum which had been improperly 249 Sec. 236. Pt. 2. REVISED STATUTES. Treasury Department. paid liim. In such case the settlement could not be reopened upon the ground that it pro- ceeded on a mistaken view of the legislation covering the sul)ject involved. (21 O]). Atty. Gen., ;52r), explaining 19 Op. Atty. Gen., 439.) In the case of an ignorant and unlettered private soldier the rule of law should apply, a multo l\)rtiori (for much stronger reasons), which has been invoked for the relief of edu- cated and experiencetl ofKcers of the Army, viz, that payments made by mistake of law can not be recovered by the Government. (21 Op. .\tty. Gen.,323.) Navy pay officers are not responsible for payments made by mistake of law, if such pay- meiits are made on certified pay rolls, as re- quired by the Navy regulations, and the items are fair on their face. (Op. Atty. Gen., May 19, 1915, 171 S. and A. Memo., 3611.) 2. COURT OF CLAIMS DECISIONS. The rule that the Government can not be held responsible for the mistakes of its agents includes mistakes of law as well as mis- takes of fact, and extends to a mistake of law committed by the accounting officers in adjust- ing and allowing an account of one supposed to be but not an officer of the Government. (Mc- Elrath v. U. S., 12 ("t. Cls., 202.) (See decision of Supreme Court affirming this case, noted be- low under "3. Decisions of Supreme Court.") Where one has received raoney to which, ex aequo et bono, he is not entitled, the general rule of law and equity is that an action lies for its recovery. The only exception to this rule is that where between individuals the money has been paid by a mistake of law it can not be recovered ; and we think this exception is not applicable to the United States. (McEl- rathv. U. S., 12 Ct. Cls., 217.) The United States do not guarantee either the capacity, the integrity, or the care of their officers, and are not responsible for their deficiencies in either. As the reason of this rule is the public protection, it overrules individual equities; and as this rule is founded on "a great public policy" established for the public protection, it does not admit of excep- tions but includes mistakes of law as well as mistakes of fact, because the one may be as inju- rious to the public interests as the other. (McElrath v. U. S., 12 Ct. Cls., 216.) It is manifest the petitioner has no equitable claim to the money he received by mistake of the accounting officers. He was legally dismissed as an officer of the Marine Corps, and seven years later there was an at- tempted revocation of the order of dismissal, and claimant then tendered his resignation, ■which was accepted. He rendered no 8er^dce to the Government after his dismissal and he intended to render none. But the accounting officers allowed him half pay for this period, ■when he was not in law or in fact an officer of the Marine Corps, and he thereupon sued for the difference between half pay and full pay for said period. Under such circumstances 'the Gov- ernment is entitled to recover the unanthorized payment by counterclaim. (McEhath v. U. S., 12 Ct. Cls., 217.) (The court gave judgment against McElrath because the accounting offi- cers exceeded their jurisdiction in allowing him pay when he was not in oOice and rendered no service, and therefore had no legal claim to the money paid him and could not in conscience retain it. McKeeti. U. S., 12 Ct. Cls., 562, dis- senting opinion Richardson, J.) The principles stated in McElrath 's case might not applyiftheComptroller were to give a construction to a statute different from that which the judiciary might subsequently give, whereby the officer would receive greater pay or larger allowances than the law intended . In such a case I am not prepared to say that the Government could reopen the transaction and recover back the overpayment as money paid without legal authority in its official agents. But in this case the claimant was an utter stranger to the Government. No business or official relations suV)sisted between him and the Government and he had no claim or account against the Government for the Comptroller to adjust. (McElrath v. U. S., 12 Ct. Cls., 218, concurring opinion, Nott, J.) McElrath -was not an officer in the Navy, nor had he been for any part of the period over which his pretended account extended; nor had he rendered any ser^vice as such; nor had any legal relations between him and the Gov- ernment existed. The Comptroller therefore acted ab initio -without authority; and his mis- take, whether of law or of fact, that he had jurisdiction of the pretended account, gave him none. There is a very broad difference between that case and one in which the Comptroller has jurisdiction of the account, where the claimant is a verital^le officer of the Na-V7»^ but through an incidental mistake of law in the settlement of the account, the officer is allowed some item of pay which in the judgment of the courts should have been disallowed. (McKee v. U. S., 12 Ct Cls., 532.) In the case of disbursing officers the policy of the Government has been to ac- knowledge no payments as made on its behalf save those which were authorized by law. If a disbursing officer makes a mistake of law, the payment is disallowed when his accounts come in for settlement and charged to him as if the money were still in his hands. But the Comp- trollers of the Treasury are not disbursing offi- cers. Within the proper functions of their offices, they are above the re^view of the highest executive authority and their decisions are subject only to judicial re"vision. (McKee v. U. S., 12 Ct. Cls., 532, 533.) Se'ttlements made by the accounting officers of the Government with its cred- itors, untainted by fraud, and free from mis- take of fact, possess the element of finality. (McKee v. U. S., 12 Ct. Cls., 532.) A practical construction going back to the very beginning of the Government is overwhelming, and can not be overtm-ned with safety by anything short of statutory amend- ment. From the first day the Treasury did business until this case was brought (1876), it is safe to say that the Government has never gone into aiiy court as plaintiff and sued the party to whom money was paid in mistake of law. The courts have been open to the Gov- 250 Treasury Department. Pt.2. REVISED STATUTES. Sec. 236. ernment ever since courts were established and it has never been supposed that such an action could be maintained. If the Govern- ment has such power, all the settlements which present and past comptrollers have ever made will be liable to be reopened, as no statute of limitations runs against the Government. Such a ruling can not promote the public welfare but would be prolific in public mis- chiefs. (McKee v. U. S., 12 Ct. Gs., 533, 534.) The true rule to be laid down is this: AVhere the accounting officers of the Treasiu-y are authorized to settle an account or claim against the GoA-ernment, a mistake of law committed incidentally in the adjustment will not, after payment of "the balance found to be due, affect the finality of the settlement or entitle the Government to recover back the money paid in mistake of law ex aequo et bono. (McKee v. U. S., 12 Ct. Cls., 534.) Reversed on other grounds (U. S. v. McKee, 97 U. S., 233). The question to be determined in these cases, when public money is paid away by public officers with full knowledge of the facts but in mistake of law upon an honest inter- pretation and decision, is how far those officers have been intrusted by the Government with the authority to decide, because if they have no such authority, the Government would under no circumstances be bound by their decisions. (McKee v.^ U. S., 12 Ct. Cls., 552; dissenting opinion, Richardson, J., concurred in by Drake, Ch. J.) The accounting officers stand in differ- ent relations to the Government from dis- bursing officers who have only ministerial duties to perform; they must of necessity de- cide questions of law and fact which arise in the settlement of accounts. To some extent the Comptrollers are quasi judicial officers. (McKee v. U. S., 12 Ct. Cls., 553, 554, opinion Richardson, J.) Public policy requires that the Govern- ment should not be bound by the mistakes of its officers; it also requires that the settlements of the accounting officers, within the exact scope of their authority, when followed by pay- ment and acquiesced in by the claimants, should be held final and conclusive on the Govern- ment unless impeached by fraud, or mistake of fact, as in like cases between individuals. Such settlements involve vast accounts of col- lectors and disbursing officers under heavy bonds; the complicated accounts of persons furnishing supplies to the Army, Navj', and other branches of the Government; the ac- counts of individuals dealing in thousands of ways with the constituted authorities, as well as accoimts for the salaries of public officers to whom it is often of great importance to know exactly how much they can depend upon receiving. (McKee v. U. S., 12 Ct. Cls., 557, opinion Richardson, J.) If nothing could be regarded as settled against the Government in the adjustment of accounts except what is determined by the final judgment of the courts, it would follow that whenever a new construction is placed on a statute different from that which the same or a former comptroller adopted in the settle- ment of earlier accounts, although there were no frauds, mistakes or concealments of facts and the parties had dealt with the Govern- ment on the basis of the former rulings, and had long acquiesced in the settlement, the accounts might nevertheless be reopened and the parties brought into court upon a claim for money paid them in mistake of law. And as no statute of limitations bars actions brought by the United States, any account settled since the first organization of the Government might be so reopened. (McKee v. U. S., 12 Ct. Cls., 559, opinion Richardson, J.) If claimant does not acquiesce in the settlement but brings an action in the Court of Claims to recover an additional amount, he can not, in law or justice, well complain if the United States on their part no longer acquiesce in the payment, and, in defending themselves, have the account opened throughout, stated anew, and a balance found against him, when it appears that the officers of the department exceeded their powers in exercising jurisdic- tion over the claim and mistook the law appli- cable thereto, and the money paid was not legally due to the claimant and could not have been recovered by an action in the Court of Claims or otherwise, and can not in con- science be retained by him. Had claimant himself not disturbed the settlement by bring- ing suit, the United States would, no doubt, have abided by the action of their officers as they have done before in hundreds of similar cases where executive officers have acted upon a mistaken interpretation of statutes, honestly and fairly arrived at. And because the United States do not in their ordinary business dis- turb settlements in which the claimants ac- quiesce, it does not follow that they have no right to recover back pajmaents illegally made on those which the claimants themselves re- open by actions bringing the Government into court. (McKee v. U. S., 12 Ct. Cls., 560, 561, 564, opinion Richardson, J.; Baxter v. U. S., 32 Ct. Cls., 75, 80.) The Government can no more recover back money paid under a mistake of law than an individual, in a case where a settle- ment made by the parties in good faith, under a mistaken construction of the statute, is sought to be reopened by the United States without the consent of the other party for the purpose of re- covering back money paid under it for services actually rendered at an honest valuation. [In this case it was decided that settlements made with a 8uper\'isor of internal revenue, crediting him with clerk hire paid to a person who wag at the same time a ganger, and who could not, therefore, legally receive additional compensa- tion as clerk, were conclusive on the judicial department of the Government ; that there was nothing contrary to good morals or conscience in the payment or receipt of the money; and that in allowing the payments the Treasury officers acted strictly within the scope of offi- cial authority and discretion.] (Hedrick'a case, 16 Ct. Cls., 88, distinguishing McElrath's case.) "No money shall be paid to any person for his compensation who is in arrears to the United States, until he has accounted for and paid into the Treasury all sums for which 54641°— 22 17 251 Sec. 236. Pt. 2. REVISED STATUTES. Treasury Department. he is liable * * *" (Sec. 1766, R. S.) This section ajiplies only to cases in which the party is liable to the United States. But the parties are not liable to the United States for moneys paid and received under the circumstances shown in this case (payments made in good faith, by mistake of law, for services actually rendered). (Hedrick's case, 16 Ct. Cls., 104.) (See "VI. Set-Off" above.) Where payments sought to be recovered back were made in good faith, with no im- pro])er ])urpose on either side, witli full knowl- edge of all the facts but under a mistaken con- struction of the law, it is quite clear that, if the controversy were between private parties, the money under such circumstances could not be recovered back. The fact that the transac- tions took place with an agent of the Govern- ment does not change the rule. (Arthur v. U. S., 16 Ct. Cls., 433, citing and following U. S. V. Freeman, 3 How., 564.) Salary paid by mistake of law can not be recovered back by the Government, even though the recipient was not, in law, a public officer; where both parties proceeded in good faith, and the claimant did occupy the position, in fact, of an officer on the retired list of the Army, and as such was subject to the disquali- fications of law, and the performance of such duties as by law are incident to that relation. This case differs from McElrath's case in the essential particular that the claimant has made no effort to disturb the settlement; and also in that McElrath rendered no service and occupied no relation to the Government either in law or in fact. (Miller v. U. S., 19 Ct. Cls., 353.) Where money is paid in mutual mistake of law, and the court can not restore the parties to their original position before the happening of their mutual error, it will leave them in statu quo. (Palen v. U. S., 19 Ct. Cls., 389; Bennett V. U. S., 19 Ct. Cls., 388.) The doctrine does not have such general appUcation to public ofl&cers as to indi- \'iduals, that money paid can be recovered back when paid in mistake of fact and not of law. Public officers use the funds of the people, while individuals deal with their own money, where nobody but themselves suffer for their ignorance, carelessness, or indiscretion. In the former case, the elements of agency, and the authority and duty of officers and their obligations to the public, of which all persona dealing with them are bound to take notice, are always involved. (Barnes v. District of Columbia, 22 Ct. Cls., 336, 394; approved Wis. Cent. R. R. Co. v. U. S., 164 U. S., 212.) A manifest wrong and injury will be caused by a subsequent judicial interpretation which leaves the party without redress in a case where an executive department chai'ged with the administration of a statute has pre- viously given to it an interpretation upon the faith of which the party acts. For if the con- struction afterwards adopted had been given the statute by the executive officers at the proper time, the claimant might have declined to enter into the contract and to jjerform the ser- vice. (Wis. Cent. R. R. Co. r'. U. S., 27 Ct. Cls., 468; explaining and distinguishing U. S. V. Ala. R. R. Co., 142 U. S., 621, noted below.) A different question is presented in a case where the claimant had no option but to render the service which formed the basis of the claim; as where a land-grant rail- road had to perform the required service for the Government and to perform it under the terms prescribed by Congress. If the executive de- partment in that case had originally given the statute the same construction aftenvards given it by the court, the claimant could not have declined to perform. The only effect which the original interpretation of the department caused in this case was that the claimant, by reason of overpayment, had in its possession money which it was not entitled to have, and that it had the use of such money without the payment of interest. Therefore no injury was done the claimant in such a sense as to prevent the proper construction now being given the law. (Wis. Cen. R. R. Co. v. U. S., 27 Ct. Cls., 468.) (See decision of Supreme Court in this case, noted below.) When money is paid after careful considera- tion by the proper officers of the Government, upon settlements made by the accounting officers, it can not be recovered back because paid in mistake of law. (Hillborn v. U. S., 27 Ct. Cls., 547; 28 Ct. Cls., 237.) "Whatever doubt may have existed hereto- fore as to the right of the Government to main- tain a counterclaim for money paid by its agents or officers without authority of law or paid through a misconstruction of the law has now been removed by the decision in the case of the W^isconsin Central Railroad Company v. United States, 164 U. S., 190, 210 (affirming the decision of this court)." (Baxter v. U. S., 32 Ct. Cls., 75, 81; Wis. Cent. R. Co. v. U. S., noted below.) "It has been held in many cases that pay- ments made in good faith through a mistaken interpretation of the law may not be recovered . ' ' (Downes v. U. S., 52 Ct. Cls., 327.) 3. DECISIONS OP SUPREME COUET. The settlements of the accounting oflS.- cers have always been considered as con- clusive upon the Government, but not as against the individual. The law expressly provides that rejected items may be allowed by the court. Accounts amounting to many millions annually come under the action of these officers. It is therefore of great impor- tance to the fjublic and to individuals that the rules by which they exercise their powers should be fixed and known. (U. S. v. Jones, 8 Pet., 375.) What has been done under an erroneous construction of the law is binding upon the Government and can not be recalled to the pecuniary disadvantage of any officer who may have received pay and emoluments under such erroneotis practice. (U. S. v. Freeman, 3 How., 564; followed Arthur i). U. S., 16 Ct. Cls., 433.) If a credit has been given or an allow- ance made by the head of a department, and it is alleged to be an illegal allowance, the judi- cial tribunals of the country must be resorted to to construe the law under which the allow- 252 Treasury Department. Pt.2. REVISED STATUTES. Sec. 236. ance was made, and to settle the rights between the United States and the party to whom the credit was given. (U. S. v. Bank of the Me- tropolis, 15 Pet., 377.) ["The mistake referred to in this citation was assumed and expressed to be a mistake of law, for the resort to the Judi- cial tribunals was to be had 'to constnie the law under which the allowance was made.' And we think that the citation is an aiithorita- tive declaration of the Supreme Court that where a payment ia made to an officer by a mistake of law in a department, a suit may be maintained by the United States for the recov- ery of the money paid." (McElrath v. U. S., 12 Ct. Cls.,217.) "The view thus indicated that executive decisions in cases like the pres- ent are not binding on the coiirts, has been re- peatedly affirmed and steadily adhered to." (Wis. Cent. R. R. Co. v. U. S., 164 U. S., 207.)] Had the appellant rested upon the set- tlement of his account by the proper officers of the Government, his right to invoke the gen- eral nile (that payments made under a mistake of law can not be recovered back) would have been entitled to more consideration than it can now receive. If the general rule applicable in such cases would preclude the Government from reclaiming money which had been paid under a mistake of law simply, that rule is inap- plicable under the cu'cumstances disclosed in the present case. Upon recei\'ing the amount awarded to him by the representatives of the Government, he distinctly announced his pur- pose not to abide by their settlement of his ac- counts; but in disregard thereof to demand an additional sum upon the basis of full pay and allowances. * * * This suit itself invites the court to go behind that settlement to reex- amine all the qiiestions arising out of appellant's claim for full pay and allowances and to con-ect the error which he insists was committed to hia prejudice by the accounting officers of the Gov- ernment. The Government, declining to plead the former settlement in bar of suit, meets him upon hia own chosen ground, and insisting that its officers, misapprehending the law, paid to him out of the Treasury money to which he was not legally entitled, asks as we think it may rightfully do judgment for the amount thus improperly paid to him. (McElrath v. U. S., 102 U. S., 441; distinguished Hedrick's case, 16 Ct. Cls., 88, Miller's case, 19 Ct. Cls., 353, Walker V. U. S., 139 Fed. Rep., 409, 418; affirmed 148 Fed. Rep., 1022; followed V. S. v. Dempsey, 104 Fed. Rep., 197.) The Government is not bound by the action of the Navy Department in deliver- ing old materials to a contractor at an agreed price, considerably less than their real value. Such action was without waiTant of law, and in a suit brought by the contractor for payment on hia contract, it was held that, the material having been disposed of, he should be required to account for it at its true value. The fact that the account of appellant was settled by the officers of the Na\'y Department by charging him with the value of the old material at the agreed price is no bar to the recovery of its real value by the Government. The whole trans- action was illegal and the appellant is charge- able with knowledge of the fact. (Steele v. U. S. 113 U. S., 128.) When the remedy of the party against the Government is barred by the statute of limitations, and the remedies of the United States on the other side are intact, owing to its not being subject to any statute of limitation, settled accounts, where the United States has paid the balance found due, can not be opened and set aside on account of technical irregulari- ties in the allowance of expenses, or merely be- cause some of the prescribed steps in the ac- counting, which it was the duty of a head of a department to see had been taken, have in fact been omitted. (U. S. v. Johnston, 124 U. S., 236, 254.) [This observation of the Supreme Court illustrates the danger of the doctrine which the GoA'ernment pushes in a case where it attempts to recover back overpayments, years after final settlement, on the ground that such overpayments were made by mistake of law. (Walker-!). U. S., 139 Fed. Rep., 409, 417.)] When an oflB.cer brings suit in the Court of Claims to recover a balance claimed to be due him on his pay account, the Government by counterclaim can recover overpayments made to him on that account. \\Tiether the Government can in any case be precluded from reclaiming money wliicli has been paid by its disbm'sing and accounting officers inider a mis- take of law is a question which it is not now necessary to decide any more than it was in McElrath v. U. S. (above). This is a case where the disbursing officer, supposing that a retired officer of the Navy was entitled to more than it tiu-ns out the law allowed, overpaid him. Certainly under such circumstances the mistake may be corrected. The action was brought to recover a balance claimed by the officer to be due him on pay account from the date of his retirement. In reality the account had never been closed and was always open to adjustment. His pay was fixed by law, and the disbursing officers of the department had no authority to allow him any more. If they did, it was in violation of law, and he has no right to keep what he has thus obtained. (U. S. v. Biu-chard. 125 U. S., 176.) Where money has been paid under a mistake of law it can not be recovered back. It is denied that this rule is applicable to the United States upon the ground that the Government is not bound by the mistakes of its officers, whether of law or of fact; but inasmuch as the claimant's name was placed in the retired list of the Army by the Secretary of War in ap- parent compliance with the pro\'ision8 of law, and as he acted as an officer de facto (in fact), we are not inclined to hold that he has received money as salary which, ex aequo et bono, he ought to retiu-n. (Badeau v. U. S., 130 U. S., 439.) Where payment was made by the United States in consequence of a misrepresentation by the defendant to the Secretary of the Treas- ury which created a misapprehension on his part of the nature of the defendant's services, the amount so paid ought in equity and good conscience to be returned to the United States. (Sanborn v. U. S., 135 U. S., 271.) It is a settled doctrine of this court that in case of ambiguity the judicial department will lean in favor of a construction given to a statute by the department charged with its 253 Sec. 236. Pt.2. REVISED STATUTES. Treasury Department. execution, and if such construction be acted upon for a number of years will look with dis- favor upon any sudden change whereby parties who have contracted with the Government upon the faith of such construction may be preju- diced. It is especially objectionable that a construction of a statute favorable to the indi- vidual citizen should be changed in such man- ner as to become retroactive and to require from him the repayment of moneys to which he had supposed liimself entitled and upon the expec- tation of which he had made his contracts with the Government. (U. S. v. Ala. R. R. Co., 142 U. S.,621.) Where a naval officer sues for a defi- ciency claimed to exist in hie previous grade, and his contention is sustained, there may be deducted from the sum due him the amount of overpajmients made in his present grade upon a difference of opinion as to the law. (U. S. v. Stahl, 151 U. S.,366.) Where no peculiar circumstances ap- pear to make such recovery inequitable and unjust, money paid in violation of law upon balances certified by the accounting offi- cers generally may be recovered back by coun- terclaim or otherwise; the items of the several statements upon which the auditor certifies balances due for carrying the mails, ordinarily and in the absence of special circumstances, may be regarded as running accounts, at least while the parties continue the same dealings between themselves. This statement was made by the Court of Claims in a case in which the mistake was treated as one of fact, but the governing principle is the same in the present case which is one of misconstruction of law. (Wisconsin Cent. R. R. Co. v. U. S., 164 U. S., 211, quoting Duval v. U. S., 25 Ct. Cls., 46.) As a general mle and on grounds of public policy the Goverimaent can not be bound by the action of its ofticers, who must be held to the performance of their duties within the strict limits of their legal authority, where, by misconstruction of the law under which they have assumed to act unauthorized payments are made. The question is not presented as between the Government and its officer, or be- tween the officer and the recipient of such pay- ments, but as between the Govenmient and the recipient, and is then a question whether the latter can be allowed to retain the fruits of ac- tions not authorized by law, resulting from an erroneous conclusion by the agent of the Gov- ernment as to the legal effect of the particular 8tatutc)ry law under or in reference to which he is proceeding. (Wisconsin Cent. R. R. Co. v. U. S., 164 U. S. 210; followed U. S. v. Demp- sey, 104 Fed. Rep., 197.) (In the decision of the Coiu-t of Claims in this case, noted above, it was pointed out that the claimant was not equitably entitled to retain the overpayments; and the Supreme Com-t's conclusion was, "that there is nothing on this record to take the case out of the scope of the principle that parties re- ceiving moneys illegally paid by a public offi- cer are liable, ex aequo et bono, to refund them.") Where money has been paid without authority of law, and the Government has money of the same claimant in its hands, it is not compelled to pay such money over and sue to recover the illegal pajmients; but may hold it subject to the decision of the court when the claimant sues. And in that way multiplicity of suits and circuity of action are avoided. (Wisconsin Cent. R. R. Co. v. U. S., 164 U. S., 211.) (See "VI. Set-Off" above.) 4. MISCELLANEOUS DECISIONS. Where the accounting officers have passed the account, and payment is made, it seems clear that the officer whose accounts are thus approved and paid can not afterwards be called upon for repayment. The Govern- ment's claim in such case could have no possi- ble standing, except upon the ground of fraud or palpable mistake. (Tuthill v. U. S., 38 Feci. Rep., 538.) [This decision seems to approve the same doctrine which was applied by the Court of Claims in Hedrick's case, above noted. (19 Op. Atty. Gen., 441.) ] The United States may recover an overpayment made by mistake of law, with interest from the date when the officer's accounts were settled by the Treasury Depart- ment. (U. S. V. Dempsey, 104 Fed. Rep., 197.) [In this case an Army officer was, by mistake of law, paid commutation of quarters for a period during which he occupied a build- ing provided by the United States for his occu- pancy and use, and which was suitable for an officer of his rank. The United States brought suit to recover the overpayment. The court said that the paymaster who paid the defend- ant the above sum of money could go no further in this matter than he was authorized by law. The law limited his powers. The Government was not bound when he exceeded the authority given him by the Federal statutes. The Gov- ernment having provided the defendant with suitable quarters free of charge, the paymaster was not authorized to pay him this money. Thatundersuch circumstances, the followingde- cisions maintain the rule that the Government may sue for and recover back this sum of money so paid — citing decisions of Supreme Court in McElrath v. U. S. and Wisconsin Cent. R. R. Co. V. U. S., noted above.] Compare U. S. v. Sanborn (135 U. S., 271). Whatever may be the general rule, the United States stands upon no better footing than woiHd a private citizen in a case where money has been paid by its officers under mistake of law, and the circumstances are such that the Government is not entitled, ex aequo et bono, to recover such money from the recipient. (Walker v. U. S., 139 Fed. Rep., 409; affirmed 148 Fed. Rep., 1022.) [In this case the money was paid to a United States marshal as fees, and m the course of his duty he "paid three-fourths of the amount of these fees to his deputies, from time to time as he made settlements, and retained the balance, as was his duty to do, under the law as then construed by every depart- ment of the Government which had acted or spoken on the subject." It was held that the Government could not recover either the amount paid to his deputies or the portion retained by the marshal, after years had elapsed 254 Treasury Department. Ft. 2. REVISED STATUTES. Sec. 236. and the marshal had gone out of office, and was without remedy to recoup his losses, and dur- ing which time no objection had been made to such payments by the executive departments or by Congress, which continued to appropriate money therefor, even though the allowances may have been made under an erroneous con- struction of the law.] Where, by mistake of law for which he was not responsible, an officer of the Navy was paid increased compensation as an appointee from civil life, when he was not, under the law as construed by the Supreme Court, entitled to such additional compensation, held that the Government could not recover the amount of the overpayment for the period from the date of his appointment until the time when his rating was corrected. (U. S. ?;. U. S. Fidelity and Guaranty Co., 244 Fed. Rep., 310.) The underlying principle of the deci- sions is that when the sovereign comes into court to assert a pecuniary demand against the citizen, the court has authority and is under the duty to withhold relief to the sovereign except upon terms which do justice to the citizen or subject as determined by the juris- prudence of the forum in like subject matter between man and man. (Walker v. U. S., 139 Fed. Rep., 409, 413.) It is not material whether the pay- ments were in fact authorized by the existing statutes at the time they were made, if it appears that the transactions have been executed and closed, and Congress, the legis- lative power which could treat them as legal at that time and thereby make them legal, did treat them as legal at that time. (Walker v. U. S., 139 Fed. Rep., 409, 416.) It would seem the burden is on the Government to show that the accounts could be reopened without doing injustice to the citizen in a case where money has been paid to him as a public officer by mistake of law, and the settlements closed and executed before he went out of office, and he accepted them aa finalities. (Walker v. U. S., 139 Fed. Rep., 409, 417.) When an officer accepts the final set- tlements made with the auditing department in full of his accounts, and does not commence suit against the Government to avoid its ruling as to any matters involved in those settled accounts, his conduct does not bring him with- in the principle of McElrath v. U. S. (noted above). His attitude does not, as did that of the plaintiff in McELrath's case, "invite the court to go behind the settlement. " (Walker V. U. S., 139 Fed. Rep., 409, 418.) In general, the holding of the courts is that the Government is not bound by the acts of its officers or agents, but exceptions are made by the courts in cases where the circumstances are such that the refimdment under compulsion of moneys so paid would be a violation of equity and good conscience. (Comp. Dec, July 17, 1914, 161 S. and A. Memo., 3303; Comp. Dec, Dec. 1, 1914, 165 S. and A. Memo., 3409; Comp. Dec, Mar. 26, 1915, file 26254-1748.) Men who have furnished all the evidence of citizenship required by the administrative offi- cers of the Navy, and who have accordingly been allowed the additional pay provided tor citizens of the United States, have not received money "which inequity and good conscience they ought to be required to return to the United States." There is no principle of law which in such case requires the accounting officers to reopen, upon their own motion, accounts which have been settled and closed, although such Sayments would not be conclusive upon the overnment if the men should seek, through the accounting officers or the courts, to reopen their pay accounts in order to secure something claimed to be due them under a new ruling or decision. (Comp. Dec, July 28, 1913, 149 S. and A. Memo., 2715. Where, contrary to these principles, the Comptroller holds an officer in- debted for overpayments made by mistake of law, the Secretary of the Navy will not take any action tending to the collection of the amount from such officer, but should the Comp- troller attempt to have suit brought against the officer the Secretary will present all facts in the case to the Department of Justice. (File 26254- 2160:4, Aug. 7, 1917; see also 26254-2160:2, June 7, 1917.) Where pa3rments have been made under a long-continued practice of the adminis- trative department, sanctioned by the account- ing officers of the Treasury, payments so made by disbursing officers prior to the promulgation of a Comptroller's decision reversing the former construction of the law, if otherwise correct, will be passed to their official credit. (20 Comp. Dec. 182; 72 S. and A. Memo., 225; see also Comp. Dig., 295,296.) Errors of judgment in the application of legal rules to the facts which were before the accounting officers can not be corrected by any subsequent action of the accounting officers themselves. (Dec of Second Comptroller, Sept. 9, 1885, quoted in 34 Ct. Cls., 490, 493, Bal- timore & Ohio R. Co. V. U. S.) [In this case the accounts had been settled by a former admin- istration.] (D) Subsequent administration. Can not generally reopen accounts set- tled by predecessors. — After a final settle- ment of a claimant's accounts by the Comp- troller, the same can not be reopened by his successor in office, except to correct "mistakes in matters of fact arising upon errors in calcula- tion, and in cases of rejected claims in which material testimony is afterwards discovered and produced." (Balto. & Ohio R. R. Co. v. U. S., 34 Ct. Cls., 504; H.^.v. Bank of the Metropolis, 15 Pet., 377, 401; Rollins and Presbrey i;. U. S., 23 Ct. Cls., 123.) This has become the settled rule of administrative law. (Balto. & Ohio R. R. Co. V. U. S., 34 Ct. Cls., 504, citing Jack- son V. U. S., 19 Ct. Cls., 605, 509.) Except in cases of fraud, mistakes in calcula- tion, or the filing of material new evidence, the disallowance of a claim by the Comptroller is final and conclusive and the case is res judicata (a thing adjudicated) in the department. (Armstrong's case, 29 Ct. Cls., 148, 169.) 255 Sec. 236. Pt.2. REVISED STATUTES. Treasury Department. The allowance of a claim by an auditor under a special act of Congress, followed by payment, can not be set a«ide by his successor. Where one atiditor settles an account, his successors are bound by his decision. (5 Op. Atty. Gen., 97.) It has repeatedly beoTi held by the Court of Claims and by the Supreme Court that the final decision of a matter by a })ublic officer is bind- ing upon his successtJr, and that the right of an incumbent to review a predecessor's decision extends only to mistakes of fact arising from errors in calculation, and to cases of rejected claims in which material evidence is afterward discovered and produced. (Cotton case, 29 Ct. Cls., 207, 223.) The right of a public officer to review a prede- cessor's decisions extends to mistakes in mat- ters of fact arising from errors of calculation, and to cases of rejected claims in which material testimony is afterwards discovered and pro- duced; but if a credit has been given or an al- lowance made by the head of a department, and it is alleged to be an illegal allowance, the judi- cial tribimals of the country must be resorted to to construe the law under which the allowance was made and to settle the rights between the United States and the party to whom the credit was given. It is no longer a case between the correctness of one officer's judgment and that of his successor. A third party is interested, and he can not be deprived of a payment, on a credit so given, but by the intervention of a court to pass upon his right. (U. S. v. Bank of the Metropolis, 15 Pet., 401.) It is well settled that the Comptroller has no right to review the decision of his predecessor upon a question of law, whether such decision be correct or erroneous. This principle has been so long recognized and exercised, as evidenced by numerous rulings of the Comptrollers, opin- ions of the Attorneys-General, and decisions of the courts, that citations are scarcely necessary. (20 Comp. Dec, 680, 687. See also 19 Comp. Dec. 110, and authorities there cited; compare 4 Comp. Dec, 697.) By act of March 4, 1907 (34 Stat., 1356), relat- ing to the payment of back pay and bounty in certain cases, it was provided that thereafter in all such cases, ' ' the said accounting officers shall, in stating balances, follow the decisions of the United States Supreme Court or the Court of Claims of the United States after the time for appeal has expired, if no appeal be taken, with- out regard to former settlements or adjudica- tions by their predecessors." (See Leigh v. U. S. 43 Ct. Cls., 387.) (E) Same administration. May reopen accounts settled by them- selves. — "It has never been doubted that any public officer in the departments may correct his own errors, and open , reconsider, and reverse, in whole or in part, any case decided by him- self." (Rollins and Presbrey's case, 23 Ct. Cls., 123.) [In this cise, the officer's action did not purport to be a final settlement, and the case was treated by him as still pendiiig.] The accounting officers have a right to reopen accounts which have been settled by them- selves, to correct errors either of law or fact, but they are not authorized to reopen accounts which had been settled by their predecessors except upon the production of newly discovered material evidence, or to correct mistakes of fact, or for fraud or collusion. (11 Comp. Dec, 459; followed 15 Comp. Dec, 584, 97 S. and A. Memo., 1004. But see above, "(C) Mistake of Law.'") [Previously it had been decided by the Comptroller that the accounting officers of the Treasury are not authorized to reopen ac- counts for the purpose of correcting decisions upon questions of law subsequently held to be erroneous; and that to admit such a proposition would bring endless confusion into the settle- ment of accounts and substitute the judgment of one officer for that of another on doubtful questions of law (6 Comp. Dec, 91); and again, that it is an established rule that the accounting officers are not authorized to re- open accounts which have been settled, either by themselves or their predecessors, for the purpose of correcting decisions of law subse- quently held to be erroneous (8 Comp. Dec. 24); but that "the Government has authority to withhold money due to an officer of the Navy to whom an erroneous payment has been made, notwithstanding that the payment was found to be erroneous only upon a construction of law made after the settlement of an account in which the payment was allowed; the burden is upon claimant to bring suit therefor and have the question of right determined by the courts. (8 Comp. Dec, 24, citing Wis. Cent. R. R. Co. v. U. S.,164U. S., 190, 211.)] IX. Mandamus Proceedings to Compel Payments. Mandamus will lie against an auditor in the Treasury Department to compel the tak- ing of such steps by him as may be necessary to accomplish the payment to a public officer of the salary of his office as fixed by law, where there is no dispute that the amount of such salary is lawfully due the officer, but its pay- ment has been withheld in accordance with decisions of the Comptroller of the Treasury and contrary to an opinion of the Attorney General, on the ground, that said officer was indebted to the United States, which alleged indebtedness was denied by the officer and had not been adjudicated in any court. (Smith v. Jackson, 241 Fed. Rep., 747; 246 U. S., 388.) The courts have no power to issue a writ of mandamus commanding the Secre- tary of the Treasury to withdraw money from the Trea.sury to pay the claim of an individual. The only acts to which the power of the courts by mandamus extends are such as are purely ministerial — that is, which do not require the exercise of judgment or discretion — but when- ever the right of judgment or discretion is left to an officer, he can not be controlled in its exercise by the courts. (U. S. v. Guthrie, 17 How., 284.) The duties of the accounting officers are not merely ministerial. (20 Comp. Dec, 741.) 256 Treasury Department. Pt. 2. REVISED STATUTES. Sec. 237. The suggestion that a court can command the withdrawal of a sum of money from the Treasury of the United States, to be applied in satisfac- tion of disputed or controverted claims against the United States, is such that its simple state- ment must carry with it the most startling con- siderations and unavoidable negative; for it would occur, a priori, to every mind that a Treasury not fenced round and shielded by fixed and established modes and rules of ad- ministration but which could be subjected to any number or description of demands, as- sorted and sustained through the undefined and undefinable discretion of courts, would con- stitute a feeble and inadequate provision for the great and inevitable necessities of the Nation. The Government, under such a regime, or rather such an absence of all rule, would, if practicable at all, be administered not by the great departments ordained by the Constitution and laws, and guided by the modes therein prescribed, but by the uncertain, and perhaps contradictory, action of the courts in the enforcement of their views of private in- terest. (U. S. V. Guthrie, 17 How., 303; State of Mississippi v. Durham, 4 Mackey (D. C), 238. See also Kendall i;. U. S., 12 Pet., 524; Decatur V. Paulding,14 Pet., 497, 515; Brashear-y. Mason, 6 How., 101.) The Department of the Treasury seems fully equipped for the discharge of every fiscal duty and exigency; and therefore, independently of general considerations of abstract policy, the Government would seem to be justified in main- taining, in all its integrity, the dogma that it can not by any form of process, base its rights of property subjected to the arbitrament of a judicial tribunal, without its explicit consent in due form of law. (State of Mississippi v. Durham, 4 Mackey (D. C), 237.) Mandamus will not lie against an officer of the Treasury Department who refuses to allow and pay a claim against the United States; for, however obviously without legal justification his refusal may be, mandamus against him to compel such allowance is none the less, in effect, a suit against the United States, and it is well settled that no action can be sustained against the Government itself, for any supposed debt, unless by its consent under some special statute allowing it. (State of Mississippi v. Durham, 4 Mackey_ (D. C), 235.) [But in Moser v. Meyer, which was a mandamus pro- ceeding against the Secretary of the Navy, the Court of Appeals of the District of Columbia said : ' ' Nor are we prepared to give the opinion that the Secretary of the Navy, sued with re- spect to a matter Ijing entirely within the duties of his office, is the same defendant as the United States when sued for pay by an ofhcer of the Nav>'.'' 38 App. (D. C), 13, and see Goldberg v. Daniels, 231 U. S., 218, holding that the United States is not a party to manda- mus proceedings against the Secretary of the Navy.] For other decisions see note to section 417, Revised Statutes; and see McElrath v. Mcin- tosh (16 Fed. Cas. No. 8781.) Sec. 237. [Commencement of fiscal year.] The fiscal year of the Treasury of the United States in all matters of accounts, receipts, expenditures, estimates, and appropriations, except accounts of the Secretary of the Senate for com- pensation and traveling expenses of Senators, and accounts of the Sergeant-at- Arms of the House of Representatives for compensation and mileage of members and delegates shall commence on the first day of July in each year; and all accounts of receipts and expenditures required by law to be published annually shall be prepared and pubhshed for the fiscal year, as thus established. The fiscal year for the adjustment of the accounts of Secretary of the Senate for compensation and traveling expenses of Senators, and of the Sergeant-of-Arms of the House of Representatives for compensation and mileage of members and delegates shall extend to and include the third day of July. This section -was amended to read as above by act October 1, 1890 (26 Stat., 646). Originally it provided as follows : "Sec. 237. The fiscal year of the Treasury of the United States in all matters of accounts, receipts, expenditures, estimates, and appro- priations, except accounts of the Secretary of the Senate for compensation and traveling expenses of Senators, shall commence on the first day of July in each year; and all accounts of receipts and expenditures required by law to be published annually shall be prepared and published for the fiscal year, as thus established. The fiscal year for thv, adjustment of the ac- counts of the Secretary of the Senate for com- pensation and traveling expenses of Senators shall extend to and include tlie third day of July."— (26 Aug., 1842, c. 207, ss. 1, 2, v. 5, p. 536; 8 May, 1872, c. 139, s. 1, v. 17, p. 61; 3 Mar., 1873, c. 226, s. 1, v. 17, p. 486.) Purpose and effect of la-w. — Before the passage of the act of August 26, 1842 (5 Stat. 536), afterwards incorporated in section 237, Revised Statutes, the fiscal year commenced with and ended Avith the calendar year; but for the convenience of the public service, in the administration of the expense, accounts, and estimates of the Government, Congress 257 Sec. 237. PL 2. REVISED STATUTES. Treasury Department. dianged Uie law so as to make the first day of July the commencement of the fiscal year. (Sweet V. U. S., 34 Ct. Cls., 377, 385.) This section does not forbid a public officer to demand payment of fees due htm at any time. It merely pro\ides that the fiscal year shall commence on the first day of July, and that the annual accounts shall be for the fiscal year. There is not a word that bears even remotely upon the time when accounts or claims shall become due or when they shall be paid. No payments are hastened and none deferred by this law. It might be claimed with equal propriety that this enactment postpones to the end of the fiscal year the liquidation of all claims which have no special day designated for payment. (Patterson v. U. S., 21 Ct. Cls., 322.) However, where officers are entitled to annual salaries, varying in amount according to the amoirut of business transacted in therr offices during each current year, the maximum com- pensation to which they are entitled is an annual compensation, and is not due until the end of each fiscal year. (Bachelor v. U. S., 8 Ct. Cls., 239; Patterson v. U. S., 21 Ct. Cls., 324.) 258 CHAPTER TWO. THE SECRETARY OF THE TREASURY. Sec. 248. [Forms of keeping and rendering accounts; etc.] The Secretary of the Treasury shall, from time to time, digest and prepare plans for the improve- ment and management of the revenue, and for the support of the public credit ; shall superintend the collection of the revenue; shall, from time to time, pre- scribe the forms of keeping and rendering all public accoimcs and making returns ; shall grant, xmder the limitations herein established, or to be hereafter provided, all warrants for moneys to be issued from the Treasury in pursuance of appro- priations by law; shall make report, and give information to either branch of the legislature m person or in writing, as may be required, respecting all matters re- ferred to him by the Senate or House of Representatives, or which shall apper- tain to his office; and generally shall perform all such services relative to the finances as he shall be directed to perform. [See §§ 3660-3665, 3669, 3670, 3672.]— (2 Sept., 1789, c. 12, s. 2, v. 1, p. 65; 8 May, 1792, c. 37, s. 9, v. 1, p. 281 ; 3 Mar., 1849, c. 108, s. 3, v. 9, p. 395, 20 June, 1874, c. 344, v, 18, p. 127; Ex parte Hennen, 13 Pet., 230; Neilson v. Lagow, 12 How., 98, (107).) This section was amended by act of July 31, 1894, section 5 (28 Stat., 206), which pro- vides that "The Comptroller of the Treasury shall, under the direction of the Secretary of the Treasury, prescribe the forms of keeping and rendering all public accounts, except those relating to the postal revenues and expendi- tures therefrom." In the expenditure of all public moneys it is the invariable rule to require that accounts shall be furnished itemized as far as practicable, in order that the accounting officers may prop- erly audit them. * * * The law may per- mit the exercise ot discretion in the use of public funds, without dispensing with the usual re- quirement of an itemized account showing fully for what purposes the money has been expended . (4 Comp. Dec, 159; 4 Comp. Dec, 271.) The Comptroller of the Treasury has no jurisdiction to approve or disapprove forms which are not accounting forms; as, for exam- ple, forms issued by the Secretary of the Navy for the use of the naval service in designating beneficiaries to receive death gratuity under the act May 13, 1908 (35 Stat., 128). (Comp. Dec, June 8, 1908, file 26254-44.) The Secretary of the Treasury may im- press his name with a stamp or copperplate upon a document, provided he keep the stamp or copperplate in his own possession and apply it himself or cause it to be appUed in his pres- ence; and this is a sufficient signing in law where a statute requires that certain documents be signed by him. The word "signing" does not necessarily imply, in legal acceptation at least, the use of pen and ink, held and guided by the hand of the person himself. (1 Op. Atty. Gen., 670.) Sec. 250. [Settlement of accounts within fiscal year. Repealed.] This section provided as foUows: "Sec. 250. The Secretary of the Treasury shall cause all accounts of the expenditure of public money to be settled within each fiscal year, except where the distance of the places where such expenditure occurs may be such as to make further time necessary; and in respect to expenditures at such places, the Secretary of the Treasury, with the assent of the President, shall establish fixed periods at which a settle- ment shall be required." — (3 Mar., 1817, c 45, 8. 13, V. 3, p. 368.) It was superseded and repealed by act July 31, 1894, section 12 (28 Stat., 209). Sec. 251. [Rules, regulations, and forms.] The Secretary of the Treasury shall make and issue from time to time such instructions and regulations to the several collectors, receivers, depositaries, officers, and others who may receive Treasury notes. United States notes, or other securities of the United 259 Sec. 251. Pt.2. REVISED STATUTES. Treasury Department. States, or who may be in any way engaged or employed in the preparation and issue of the same, as he shall deem best calculated to promote the public convenience and security, and to protect the United States, as well as individ- uals, from fraud and loss; he shall prescribe forms of entries, oaths, bonds, and other papers, and rules and regulations, not inconsistent with law, to be used under and in the execution and enforcement of the various provisions of the internal-revenue laws, or in carrying out the provisions of law relating to rais- ing revenue from imports, or to duties on imports, or to warehousing; he shall give such directions to collectors and prescribe such rules and forms to be ob- served by them as may be necessary for the proper execution of the law; he shall also prescribe the forms of the annual statements to be submitted to Con- gress by him. showing the actual state of commerce and navigation between the United States and foreign countries, or coastwise between the collection districts of the United States, in each year. — (10 Feb., 1820, c. 11, ss. 14, 15, V. 3, p. 548; 6 Aug. 1846, c. 84, s. 5, v. 9, p. 55; 30 June, 1864, c. 172, s. 8, v. 13, p. 221; 14 July, 1870, c. 255, s. 34, v. 16, p. 271; 14 May, 1856, Res. 9, V. 11, p. 144; Lennig v. Maxwell, 3 Blatch., 125; Munsell v. Maxwell, 3 Blatch., 364.) On general subject of regulations, see section 161, Revised Statutes, and note thereto. As to forms of keeping and rendering accounts, see section 248, Revised Statutes, and note thereto. Persons connected with the Navy are forbidden to import in a public vessel any article which is liable to the payment of duty. (Sec. 1624, R. S., art. 12.) Punishment by general coiu-t-martial is pro- vided for transporting on naval vessels any goods or merchandise for freight, sale, or traffic, except gold, silver, or jewels for freight or safekeeping. (Sec. 1624, R. S., art. 8, clause 13.) The Naval Instructions, 1913, contain the f ollo'wlng rules relative to customs in- spections of naval vessels: " 1321. (1) When any sliip under the control of the Navy Department arrives within the territory of the United States, after having visited a foreign port or ports, the command- ing officer thereof or, in the case of a number of ships in company, the senior officer present, shall inform the collector of such United States port of the arrival of tlae said ship or ships, and shall hold such ship or ships subject to such customs inspection as the collector of the port shall be directed to make by the Treasury De- partment. Commanding officers shall see that no dutiable articles are landed until after such action has been taken by the collector of the port. If the first port visited be not a port of entry, the provisions of this order shall be com- plied with at the first i:)ort of entry visited thereafter. "(2) The commanding officer of each such ship shall cause each person on board who has purchased or othervvise acquired articles abroad which he intends to land from the ship to furnish a list of such articles and the prices paid therefor, separately stating articles of wear- ing apparel and similar personal effects intended for then- personal use and articles intended for others. AH such articles shall be conveniently packed, ready for examination by the customs officials upon arrival. "(3) The Secretary of the Treasury has in- structed the customs officers to examine and appraise such articles and to collect the duties accruing thereon, after allo^ving the one hun- dred dollars exemption upon wearing apparel and similar personal effects intended for per- sonal use. No customs examination of baggage other than that so listed and presented for ex- amination will be made. ' ' (4) The provisions of this article shall not be construed to delay the movements of any naval vessel engaged in the performance of her duty." Treasury Regulations, scope and effect of. — Where a statute is silent in matters of de- tail, the Secretary of the Treasury is doubtless vested with a certain discretion under the power given him by this section to make rules and regulations not inconsistent with law for carry- ing out the provisions of law relating to raising revenue from imports. In construing regula- tions so adopted, it must be borne in mind that the Secretary of the Treasury is an officer of the Government; that his powers are limited by law; that his duty is to protect the revenues of the Government and to prevent smuggling or other illegal practices whereby the Govern- ment may be defrauded of its revenue; and that he owes no duty to individuals beyond seeing that their rights are not prejudiced any further than is necessary by the action of cus- toms officers. (Constable v. National Steam- sliip Co., 154 U. S., 75, 76.) The contention that under the guise of regu- lations the Secretary of the Treasury has as- sumed legislative power confided by the Con- stitution solely to Congress, does not constitute a real and substantial dispute or controversy concerning the construction or application of 260 Treasury Department. Ft. 2. REVISED STATUTES. Sec. 260. the Constitution, so as to authorize a direct appeal to the Supreme Court of the United States from a decision of the Circuit Court of Appeals. (American Sugar Refining Co. v. U. S., 211 U. S., 161.) Wliere regulations of the Treasury Depart- ment are such as are warranted by, and not in- consistent with, the law, they have the effect of law. (Von Cotzhausen v. Nazro, 15 Fed. Rep., 897.) However extensive may be the general powers of the Secretary of the Treasury under this and other sections, they can not authorize any acts in conflict ^vith the particular provi- sions of the law. (U. S.i;.Leng,18Fed.Rep.,21.) A regulation and circular which the Secre- tary of the Treasury was authorized to make and issue under this section, not being incon- sistent with any pro\dsion of law, objections to their admission in evidence (their authentica- tion being conceded) are unsound. (U. S. v. Brendel, 136 Fed. Rep., 740.) Wliere regulations promulgated by the Sec- retary of the Treasury under this section are substantially followed by Government officers, the findings by those officers are conclusive. (U. S. V. Lueder, 154 Fed. Rep., 1.) Congress may enact a law and delegate the power of finding some fact or state of things upon which the operation of the law is made to depend . Where Congress instead of includ- ing in a statute a matter of detail, left the de- termination of the fact to the Secretary of the Treasury, a regulation of the Secretary of the Treasury pursuant thereto, determining the act, is as conclusive as if the standard fixed by the regulation had been named in the law it- self. If in fixing the standard, the Secretary of the Treasury does not legislate by amending the law or altering it, nor act judicially by deciding a fact which was one which, in its intrinsic nature, required judicial determina- tion, it is difficult to see, in the absence of fraud or bad faith, upon what theory a fact which Congress has submitted to his determination can be subject to review. (Cooperville, etc., Co. V. Lemon, 163 Fed. Rep., 145, decided by Circuit Court of Appeals for the Sixth Circuit.) [The Circuit Court of Appeals for the Eighth Circuit reached a directly opposite conclusion as to tlie validity of the particular regulation which was sustained in this case, holding that the legal effect of said regulation was to modify, radically, an act of Congress, and to bring under its penal provisions property and persons ex- pressly excluded therefrom by the terms of the law, and therefore that the regulation was void, as the Secretary of the Treasury has no authority thus to create and punish crimes. (U. S. v. Butter (Milton Dairy Co., Claimant) 195 Fed. Rep., 657.)] Regulations issued by the Secretary of the Treasury with reference to the internal revenue and for the government of the officers of the Revenue Department, have the force and effect of law and are as binding as if incori^orated in the statute law of the United States. (Stegall V. Thurman, 175 Fed. Rep., 813.) Sec. 255. [Appointment of disbursing agents.] The Secretary of the Treasury may designate any officer of the United States, who has given bonds for the faithful performance of his duties, to be disbursing agent for the pay- ment of all moneys appropriated for the construction of pubUc buildings authorized by law within the district of such officer. — (3 Mar., 1869, c. 122, s. 1, V. 15, pp. 301, 306.) Employment of special disbursing agents by the Secretary of the Navy: See section 3614, Revised Statutes. The Secretary of the Treasury can not designate an officer in the city of Washing- ton to be a disburshxg agent in another place under this section; because, not being attached to any district, the buildings for which his dis- l)ursements would be made would not be within his district; nor can a special disbursing agent be designated at a place where there is a collector of customs, in view of the provisions of section 3658, Revised Statutes (Bartlett v. U. S., 25 Ct. Cls., 389; affirmed 197 U. S., 230.) This law is general and without limita- tion as to place. It applies to "all moneys appropriated for the construction of public buildings authorized by law, within the district of such officer." (19 Op. Atty. Gen., 393.) Additional pay prohibited. — An officer of the United States designated as disbursing agent within his district under this section, would not be entitled to any additional pay, because of the provisions of sections 1764, 1765, Revised Statutes. (Bartlett v. U. S., 197 U. S., 234.) Sec. 260. [Reports upon appropriations for Departments of War and Navy.] The Secretary of the Treasury shall lay before Congress at the commencement of each regular session, accompanyuig his annual statement of the public expenditure, the reports which may be made to him by the Auditors charged with the examination of the accounts of the Department of War and the Depart- 261 Sec. 266. Pt.2. REVISED STATUTES. Treasury Department. ment of the Navy, respectively, showing the application of the money appro- priated for those Departments for the preceding year. — (3 Mar., 1817, c. 45, s. 6, V. 3, p. 367.) By act of June 19, 1878 (20 Stat., 167) it was provided: "That from and after the pas- sage of this act, it shall be the duty of the Secretary of the Treasury to transmit to Congress annually a tabular statement showing in detail the receipts and expendi- tures in the naval service under each ap- propriation, as made up and determined by the proper officers of the Treasury De- partment, upon the accounts of disbursing officers renclered for settlement. Sec. 2. There shall be appended to this statement an account of balances in the hands of disbursing agents at the close of each fiscal year, and a report of any amounts lost or unaccounted for by vouchers." Sec. 264. [Report of Coast Survey expenditures.] The Secretary of the Treasury shall report to Congress annually the number and names of the per- sons employed during the last preceding fiscal year upon the Coast Survey and business connected therewith; the amomit of compensation of every kind respectively paid them, for what purpose, and the length of time employed; and shall report a full statement of all other expenditures made under the direction of the Superintendent of the Coast Survey. — (3 Mar., 1853, c. 97, s. 3, V. 10, p. 209; 15 Aug., 1876, c. 287, v. 19, f. 156.) The Coast and Geodetic Survey was transferred from the Treasury Department to the Department of Commerce and Labor by acts of February 14, 1903 (32 Stat., 826), and March 3, 1903 (32 Stat. 1082). The name of the Department of Commerce and Labor was changed to Department of Com- merce by act of March 4, 1913 (37 Stat., 736) . Transfer to the War or N avy Depart- ment, in time of national emergency, of the Coast and Geodetic Survey, was author- ized by act of May 22, 1917 (40 Stat., 87). The President was authorized to employ public vessels in Coast Survey by section 4686, Revised Statutes. Employment of Navy officers in Coast Survey was provided for by sections 4684 and 4687, Revised Statutes. Employment of enUsted men of the Navy in the Coast Survey was authorized by annual ap- propriations under " Pay of the Navy " prior to act of June 7, 1900 (31 Stat., 684). See Comp. Dec, Oct. 27, 1910 (116 S. and A. Memo., 1595); and file 3809-434, Nov. 17, 1914. Officers of the Navy are entitled to sea pay while attached to and serving on board any ship in commission under the control of the Coast Survey. (Art. R-4405 (1), Navy Regs., 1913.) Officers of the Navy ordered to report by letter to the Secretary of Commerce for duty in the Coast Survey, are entitled to shore pay from the dale they so report. (Art. R-4407 (4), Navy Regs., 1913.) Members of the Naval Hospital Corps were re- quired to perform all necessary hospital and ambulance service in vessels of the Coast Survey by act of June 17, 1898 (30 Stat., 475), superseded by other provisions contained in the act of August 29, 1916 (39 Stat., 573); see also art. 1-3261, Naval In- structions, 1913. Extra allowance for subsistence of officers and men of the Navy employed in Coast Sur- vey was authorized by section 4688, Re- vised Statutes, which was amended by acts of August 4, 1886 (24 Stat., 233), and March 3, 1887 (24 Stat., 521), prohibiting allowance for subsistence to Navy officers attached to Coast and Geodetic Survey. Further amendment was contained in acts of March 2, 1889 (25 Stat., 952), and August 30, 1890 (26 Stat. 382). authorizing allowance for subsistence to detailed Navy officers, detached to do work away from their vessels under circumstances involving extra expenditures. Annual reports w^ere required of Coast Survey by section 4690, Revised Statutes; pro- visions for printing and distribution of repoi'ts were contained in acts of January 12, 1895 (28 Stat., 613), and April 20, 1896 (29 Stat., 471). Sec. 266. [Quarterly publication of receipts and expenditures.] The Secre- tary of the Treasury, at the expiration of tliirty days from the end of each quarter, shall cause to be pubhshed in some newspaper at the seat of govern- ment a statement of the whole receipts of such quarter, specifying the amount received from customs, from pubhc lands, and from miscellaneous sources, and, also, the whole amount of payments made during the said quarter, speci- fymg the general head of appropriation, whether for the civil list, the Army, the Navy, Indian Affairs, fortifications, or pensions. — (17 June, 1844, c. 105, s. 6, V. 5, p. 696.) 262 CHAPTER THREE. THE COMPTROLLERS. [Foe Laws in Effect March 4, 1921, with Reference to the Powers aito Duties of the Compteollee of the Treasxiry and the Auditor for the Navy Department, see Act of July 31, 1894 (28 Stat., 205). Section 9 of SAID Act (28 Stat., 208) Provided That "This Act, in so far as it Relates to the First Comptroller of the Treasury and the Several Auditors and Deputy Auditors of the Treasury, shall be Held and Construed TO Operate Merely as Changing Their Designation and as Adding to and Modifying Their Duties and Powers, and not as Creating New Officers."] Sec. 268. [Comptrollers.] There shall be in the Department of the Treasury a Fu"st Comptroller and a Second Comptroller, each of whom shall be appomted by the Presidetit, by and with the advice and consent of the Senate, and shall be entitled to a salary of five thousand dollars a year. — (2 Sept., 1789j c. 12, s. l,v. l,p. 65; 3 Mar., 1817, c. 45, s. 3, v. 3, p. 366; 18 May, 1872, c. 172, s. 1, V. 17, p. 127; 3 Mar., 1875, c. 130, s. 2, v. 18, p. 396.) For modification of this section see act of July 31, 1894, section 4 (28 Stat., 206), which abolished the office of Second Comptroller and changed the designation of the First Comptroller to Comptroller of the Treasury. Sec. 269. [Duties of First Comptroller. Repealed.] This section provided as follows: "Sec. 269. It shall be the duty of the First Comptroller: "First. To examine all accounts settled by the First Auditor, except those relating to re- ceipts from customs, and all accounts settled by the Fifth Auditor, and by the Commissioner of the General Land-Office, and to certify the balances arising thereon to the Register. ' ' Second . To superintend the ad j ustment and preservation of the pubUc accounts subject to his revision. "Third. To countersign all warrants drawn by the Secretary of the Treasury, which shall be warranted by law. "Fourth. To superintend the recovery of all debts certified by him to be due to the United States, and for that purpose to direct all such suits and legal proceedings, and to take such measures as may be authorized by law, and are adapf^ed to enforce prompt payment thereof." [See § 1660.]— (2 Sept., 1789, c. 12, s. 3, v. 1, p. 66; 3 Mar., 1817, c. 45, ss. 8, 10, v. 3, p. 367; 3 Mar., 1849, c. 108, s. 12, v. 9, p. 396; Neilson V. Lagow, 12 How., 98.) It wa^ expressly repealed by act of July 31, 1894, section 11 (28 Stat., 209); the designa- tion of the First Comptroller was changed to Comptroller of the Treasury by section 4 of the same act (28 Stat., 206). Sec. 271. [Power to direct settlement of accounts. Superseded.] This section provided as foUows: "Sec. 271. The First Comptroller, in every case where, in his opinion, further delays would be injurious to the United States, shall direct the First and Fifth Auditors of the Treasury forthwith to audit and settle any particular ac- count which such officers may be authorized to audit and settle, and to report such settlement by 28, the First s. 2, v. 2, for revision and final decision Comptroller."— (3 Mar., 1809, c. p. 536.) It was superseded by act of July 31, 1894, section 6 (28 Stat., 206), which authorized the Comptroller of the Treasury to direct any of the Auditors to audit and settle any particular ac- count. Sec. 272. [Report of officers failing to make settlement. Repealed.] This section provided as foUows: "Sec. 272. The First Comptroller shall make an annual report to Congress of such officers as shall have failed to make settlement of their accounts for the preceding fiscal year, within the year, or within such further time as may have been prescribed by the Secretary of the Treasury for such settlement." [See §§ 195, 196.]— (3 Mar., 1817, c. 45, e. 13, v. 3, p. 368.) It was expressly repealed by act of July 31, 1894, section 12 (28 Stat., 209). Provision for annual report to Congress by the Secretary of the Treasury, of officers delinquent in render- ing accounts, is contained in act of May 28, 1896, section 4 (29 Stat., 179). 263 Sec. 278. Pt.2. RE VISED STAT UTES . Treasury Department. Sec. 273. [Duties of Second Comptroller. Repealed.] This section provided as follows: "Sec. 273. It shall be the duty of the Second Comptroller: "First. To examine all accounts settled by the Second, Third, and Fourth Auditors, and certify the balances arising thereon to the Secre- tary of the Department in which the expendi- ture has been incurred. "Second. To countersign all warrants drawn by the Secretaries of War and of the Navy, which shall be warranted by law. [See § 3673.] "Third. To report to the Secretaries of War and of the Navv the official forms to be issued in the different offices for disbursing the pub- lic money in those Departments, and the man- ner and form of keeping and stating the ac- counts of the persons employed therein. "Fourth. To superintend the preservation of the public accounts subject to his revision." — (3 Mar., 1817, c. 45, s. 9, v. 3, p. 367; 7 May, 1822, c. 90, s. 3, v. 3, p. 689.) It was expressly repealed by act of July 31, 1894, section 7 (28 Stat., 206). Sec. 274. [Arrears of pay due deceased seamen.] The Second Comptroller may prescribe rules to govern the payment of arrears of pay due to any petty officer, seaman, or other person not an officer, on board any vessel in the employ of the United States, which has been sunk or destroyed, in case of the death of such petty officer, seaman, or person, to the person designated by law to receive the same.— (4 July, 1864, c. 248, s. 3, v. 13, p. 390.) The duties of the Second Comptroller were transferred to the Comptroller of the Treas- ury bv act of July 31, 1894, section 4 (28 Stat, 205). The manner of settling accounts of deceased officers and enlisted men in the Navy where the amount due is less than $500, is provided for by act of May 27, 1908 (35 Stat., 373). Disposition of pensions and other moneys due deceased beneficiaries of Naval Home is provided for by act of June 30, 1914 (38 Stat., 398). Payment of pension money in case of death of pensioners in Government Hospital for the Insane is provided for by section 4839. Revised Statutes, as amended by act of February 2, 1909 (35 Stat., 592). Payment in case of death of persons in the Navy, entitled to reimbursement for losses at sea, was provided for by section 289, Revised Statutes, repealed by act of October 6, 1917 (40 Stat., 390). Disposition of money and other effects of deceased persons in the naval service is regulated by act of March 29, 1918 (40 Stat., 499). Sec. 275. [Signing bounty certificates. Repealed.] This section provided as follows: "Sec. 275. The Second Comptroller may de- tail one clerk to sign, in the place of the Comp- troller, all certificates and papers issued under any provisions of law relating to bounties; but the Comptroller shall be responsible for the official acts of such clerk." — (19 Mar., 1868, c. 31, s. 4, V. 15, p. 44.) It was expressly repealed by act of July 31, 1894, section 7 (28 Stat., 206). 264 CHAPTER FOUR. THE AUDITORS. [For Laws in Effect March 4, 1921, with Reference to the Powers and Duties of the Comptroller of the Treasury and Auditor for the Navy Department, See Act of July 31, 1894 (28 Stat., 205). Section 9 of Said Act (28 Stat., 208) Provided that "This Act, in so far as it Relates to the First Comptroller of the Treasury and the Several Auditors and Deputy Auditors of the Treasury, shall be held and Construed TO Operate Merely as Changing Their Designation and as Adding to and Modifying Their Duties and Powers, and not as Creating New Officers. All Laws not Inconsistent with this Act, Relating to the Auditors of the Treasury in Connection with any Matter, shall be Understood in Each Case to Relate TO the Auditor to Whom this Act Assigns the Business of the Executive Department or Other Estab- lishment Concerned in that Matter."] Sec. 276. [Auditors.] There shall be connected with the Department of the Treasury six auditors of accounts, who shall be appointed by the President, by and with the advice and consent of the Senate, and shall be known as the First, Second, Third, Fourth, Fifth, and Sixth Auditors, respectively. Each Auditor is entitled to a salary of four thousand dollars a year. — (2 Sept., 1789, c. 12, s. 1, V. 1, p. 65; 3 Mar., 1817, c. 45, ss. 3, 15, v. 3, pp. 366, 368; 2 July, 1836, c. 270, s. 8, v. 5, p. 81; Ibid., s. 44, p. 89; 8 June, 1872, c. 335, s. 21, v. 17, p. 287; 2 Mar., 1799, c. 38, s. 1, v. 1, p. 729; 3 Mar., 1873, c. 226, s. 3, v. 17, p. 508; 3 Mar., 1875, c. 130, s. 2, v. 18, i^ 397.) The designation of the Auditors was altered by act of July 31, 1894, section 3 (28 Stat., 205), 'Fourth Au- which changed the title of ditor" to "Auditor for the Navy Depart- ment." Sec. 277. [Duties of Auditors.] The duties of the auditors shall be as folio w"s : ******* Fifth. The Fourth Auditor shall receive and examine all accounts accruing in the Navy Department or relative thereto, and all accounts relating to Navy pensions; and, after examination of such accounts, he shaU certify the balances, and shall transmit such accounts, with the vouchers and certificate, to the Second Comptroller for his decision thereon. * * The duties of the Auditor for the Navy Depart- ment, designated in the above section as Fourth Auditor, are prescribed by act of July 31, 1894, section 7 (28 Stat. , 207). The duties of the Second Comptroller were transferred to the Comptroller of the Treas- ury by section 4 of the same act (28 Stat., 205). Sec. 283. [Accounts of Departments of War and the Navy.] The Auditors charged with the examination of the accounts of the Departments of War and of the Navy, shall keep all accounts of the receipts and expenditures of the public money in regard to those Departments, and of all debts due to the United States on moneys advanced relative to those Departments; shall receive from the Second Comptroller the accounts which shall have been finally adjusted, and shall preserve such accounts, with their vouchers and certificates, and record all requisitions drawn by the Secretaries of those Departments, the examination of the accounts of which has been assigned to them. They shall 265 Sec. 285. Pt. 2. REVISED STATUTES. Treasury Department. aimually, on the first Monday in November, severally report to the Secretary of the Treasury the apphcation of the money appropriated for the Department of War and the Department of the Navy, and they shall make such reports on the business assigned to them as the Secretaries of those Departments may deem necessary and require. — (3 Mar., 1817, c. 45, ss. 5, 6, v. 3, p. 3G7.) in the Division of Bookkeeping and War" rants of the Treasury Department. The office of Second Comptroller was abolished and his duties transferred to the Comp- troller of the Treasury by section 4, act of July 31, 1894 (28 Stat., 205). So much of this section as requii'es accounts to be kept by certain auditors was repealed by act of July 31, 1894, section 10 (28 Stat., 208), which provides that all accounts of receipts and expenditures of public money, except those relating to the postal revenues and expenditures therefrom, shall be kept Sec. 284. [Accounts of pay officer of lost vessel.] In every case of the loss or capture of a vessel belonging to the Navy of the United States, the proper accounting officers of the Treasury, under the direction of the Secretary of the Navy, are authorized, in the settlement of the accounts of the [paymaster] [purser] of such vessel, to credit him with such portion of the amount of the provisions, clothing, small stores, and money, with which he stands charged on the books of the Fourth Auditor of the Treasury, as they shall be satisfied was inevitably lost by such capture or loss of a public vessel ; and such purser shall be fully exonerated by such credit from all liability on account of the provisions, clothing, small stores, and money so proved to have been captured or lost.— (3 Mar., 1847, c. 48, s. 6, v. 9, p. 173 ; 18 Feb., 1875, c. 80, v. 18, p. 317.) See note to section 287, Revised Statutes. The title "Fourth Auditor of the Treasury" was changed to "Auditor for the Navy De- partment" by act of July 31, 1894, section 3 (28 Stat., 205). By the Judicial Code, March 3, 1911 , sections 145, 147 (36 Stat., 1136, 1137), it is provided that the Court of Claims shall have juris- diction to relieve any disbursing officer of responsibility on account of loss, by cap- ture or otherwise while in the Line of his duty, of Government funds, vouchers, records or papers in his charge, where such loss occurred without fault or negligence on the part of the officer, but he has been held responsible therefor. ["Capture or other- wise " means not only loss by capture and kindred ways, under the rule of ejusdem generis, but loss occurring in any other way while the officer was in line of duty and free from fault. (Stevens v. U. S., 41 Ct. Cls.,344.)] 'In case of fire or shipwreck, it shall be the special duty of every officer of the Pay Cor])s to secure and preserve the accounts of officers and men, the public money, and such other public papers and property, in the order of their value, as circumstances permit." (Art. R-3004 (1), Navy Regs., 1913.) Sec. 285. [Disbursements by order of commanding officer.] Every disburse- ment of public moneys, or disposal of public stores, made by a disbursing officer pursuant to an order of any commanding officer of the Navy, shall be allowed by the proper accounting officers of the Treasury, in the settlement of the accounts of the officer, upon satisfactory evidence of the making of such order, and of the payment of money or disposal of stores in conformity with it; and the commanding officer by whose order such disbursement or disposal was made, shall be held accountable for the same. — (3 Mar., 1849, Res. No. 17, s. 2, V. 19, p. 419. [This reference is in error in the Revised Statutes. Should be ''v. 9, p. 419."]) Order of Secretary of the Navy. — An order by the Secretary of the Navy to an officer has been held to be within this section: If money is disbursed by an officer of the N avy in faithful compliance with the Secretary's order, under this law the Secretary and not the officer must account and answer to the United States. (Opinion of Dunlop, Cii'cuit Judge, in U. S. v. Jones, 26 Fed. Cas. No. 15493a, p. 653.) [In this case, on appeal to the Supreme Court, it was ar- gued by the Attorney General that this law applies only to disbursements made "in pur- suance of an order from an officer in command." For the defendant, it was argued that this law "requires the disbursement to be allowed and the commanding officer to be held responsible. In this case it would be the President." The Supreme Court affirmed the judgment of the 266 Treasury Department. Pt. 2. REVISED STATUTES. Sec. 285. Circuit Court, which was for the defendant, without referring to this statute. (U. S. v. Jones, 18 How., 92.) Accordingly, the case must be deemed an authority for the proposi- tion that the order of the Secretary of the Navy was the order of defendant's "commanding offi- cer of the Navy " within the meaning of section 285, Revised Statutes. (File 26254-1451 : 11, Apr. 12, 1915, citing Swaim v. U. S., 165 U. S., 557; Op. Atty. Gen., May 19, 1915, 171 S. and A. Memo., 3611.] Regulations adopted under this sec- tion. — This section does not authorize an ad- vance of public money by the pay officer to the commanding officer or to any other person by his order. The disbursement presupposes an indebtedness, and whether the objects for which the indebtedness accrued were sanctioned or not by law or regulation, the pay officer would be entitled to a credit for payment therefor, when made by order of the commanding officer; but the disbursement must be for some service or article furnished in accordance with law. (Art. R-4310 (2), Navy Regs., 1913.) When ordered by his commanding officer to make an expenditure of money or stores which the pay officer believes to be illegal or contrary to regulations, the latter shall state in writing the grounds on which he objects to obejdng the order, and request that the order be reiterated in writing. On receipt of such order, the ex- penditure shall be made. (Art. R-4309, Navy Regs., 1913.) The commanding officer will be held account- able by the Navy Department for every expen- diture of funds or property made by his author- ity; but in order to charge a commanding offi- cer with pecuniary responsibility for a payment made by his order, it is necessary that there should be a compliance with the preceding par- agraph, for in the absence of such written order from the commanding officer, after a statement of objections has been duly made, the pay officer and not the commanding officer will be held responsible. (Art. R-4310 (3) Navy Regs., 1913.) Regulations must be complied with. — In order to charge a commanding officer of the Navy with a payment made by his order under this section, it is necessary that there should be a compliance with the Navy regulation as to an order in writing. This requirement is eminentlv proper and fair. (8 Comp. Dec, 756; 1 S. and A. Memo., June 1, 1902, p. 28.) Neither the regulation nor the Comptroller's ruling alters fundamentally the scope of this section. The regulation relates merely to the responsibility of the commanding officer, and has nothing to do with the position of the 'pay- ing officer; it also presupposes a belief on the part of the latter that the expenditure is illegal; it does not apply to any case in which the pay officer, in good faith, renders his obedience. (30 Op. Attv. Gen., 376, 171 S. and A. Memo., 3611.) A pay officer making a payment assumes re- sponsibility for its acciu'acy. Therefore, in withholding payment until the receipt of full information necessary to a correct settlement, the paymaster is doing no more than his duty and is acting strictly within his authority. If the commanding: officer feels satisfied that a payment should be made in advance of the receipt of full information, he is at liberty to order said pay^ment, assuming the responsi- bility therefor in accordance with section 285, Revised Statutes. (3 Comp. Dec, 449.) Responsibility of pay oflS.cer. — \ATienever Congress has desired to relieve di.sbursing offi- cers from liability for payments made on the authority of others, it has had no difficulty in finding language to express that intent. Ex- amples of this are found in sections 285 and 846, Revised Statutes; act of March 3, 1879 (20 Stat., 419); and paragraph 6 of section 8, act of July 31, 1894 (28 Stat., 208). Under the last- mentioned act, general provision has been made by which disbursing officers can avoid responsibility by applying to the Comptroller of the Treasury for an advance decision in cases where they may have doubts. The enactment of the special provisions above men- tioned is a clear indication that Congress in- tended that the general rules of accounting should apply in other cases, upon the well- known rule of construction, expressio unius est exclusio alterixis [the expression of one thing is the exclusion of another] . (7 Comp . Dec. , 271 . ) The party to whom payment has not been made by a disbursing officer may present his demand, or claim, to such disbursing officer's superior, who, if he deems the claim to be a just one, may require the subordinate to make the payment. But in such a case, the pay officer is no longer responsible financially; the order of his superior has relieved him from danger of checkage, and the disallowance, if any, would fall upon the superior. In such cases it is not the accounting officers who have power to order payment, but the disbursing officer's superior. (File 26543—66, Sept. 8, 1911.) Congress never intended that a Secretary of War should order a jjaymaster or quartermaster to make a payment, and then upon the requisi- tion of the accounting officers of the Treasury, punish the officer for having made it by stop- ping his pay. (Smith v. U. S., 24 Ct. Cls., 215.) A disbursing officer is not responsible for illegal payments made by him in good faith and in accordance with the certificate of another officer as to the facts. An appropriation being under the control of the head of a department it is within the latter's power to prescribe rules governing the disbursing agent m making dis- bursements therefrom. (9 Comp. Dec, 545; see also, Maj. Smith's case, 23 Ct. Cls., 452; 21 Comp. Dec, 314; Comp. Dec, Nov. 21, 1914, file 26254-1672; 21 Comp. Dec, 357, file 26254- 1451:5, Oct. 31, 1914; file 26254-1451:11, Apr. 12, 1915. But see Comp. Dec, Mar. 26, 1914, App. No. 23482, file 26254-1451:2; Comp. Dec, Oct. 9, 1914, App. No. 23482, file 26254-1451:12; 21 Comp. Dec 245, reversed 21 Comp. Dec, 357.) A Navy regulation (art. R-3991, 1913) re- quiring pay officers to disburse money under certain contingencies is an order of the Secre- tary of the Navy, and as such protects the pay officer from responsibility and is conclusive upon the accounting officers. (30 Op. Atty. Gen., 376, 171 S and A. Memo., 3611, revers- ing 21 Comp. Dec, 554, 357, 245; see also file 26254-1451:11.) 54641°— 22- 18 267 Sec. 28'; Pt. 2. REVISED STATUTES. Treasury Department. Sec. 286. [Fixing date of loss of missing vessels.] The proper accounting officers of the Treasury are authorized, under the direction of the Secretary of the Navy, in settling the accounts of seamen, and others, not officers, borne on the books of any vessel in the Navy which shall have been wrecked, or which shall have been unheard from so long that her Avreck may be presumed, or which shall have been destroyed or lost with the rolls and papers necessary to a regular and exact settlement of such accounts, to fix a day when such wreck, destruction, or loss shall be deemed to have occurred. — (4 July, 1864, c. 248, s. 1, V. 13, p. 389.) S. and A. Memo., 1352.) In the same case, on January 20, 1911, nothing further having been heard from the men supposed to have been drowned by the capsizing of their boat, the Comptroller held that "the presumption of the existence of life for seven years after a person was last heard from, is not an absolute presump- tion, but is a disputable one, and is subject to be controlled by facts and circumstances and other legitimate evidence; " that so long a time had elapsed that, if the men had been picked up by a passing vessel, they doubtless would have been heard from; and it is improbable that they all agreed to desert. Accordingly, held that the men in question were drowned on November 27, 1909, and payment of death gratuity should be made. (File 26254—399:1; see also 17 Comp. Dec, 528; compare Dig. Comp. Dec. (1902), p. 144.) " If I am to draw a conclusion at all, I should infer that a person in the position of a sergeant [U. S. Marine Corps] having nothing against his character would not desert, and that he died while on leave, and so was not heard of by the authorities." (In re Phone's Trusts, L. R. 5 ch. 139; Thayer's Cases on Evidence, 57.) "Vessel" defined. — See section 3, Revised Statutes. The Secretary of the Navy issued orders on March 15, l!>iO, daclaring the U. S. S. Nina to have been lost, and that the commanding officer and enlisted men attached to said vessel "will be regarded as having died on this date." (File 7054—136.) Jurisdiction of accounting officers. — Under this section, the determination by the Secretary of the Navy of the day when the wreck, destruction, or loss shall be deemed to have occurred is binding upon the accounting officers of the Treasury in settling the accounts of seamen and others, not officers, borne on the books of the vessel. (32 Op. Atty. Gen., 427, file 26254—3048:2; contra, 26 Comp. Dec, 336.) All presumptions of death, other than the legal presumption of death after seven years' unexplained absence, should be dis- regarded unless the evidence leaves no con- clusion reasonable other than that, under the known facts, death must have residted. A\Tiere it is possible that the men may have been picked up by a sailing vessel, payment of death gratuity under the act of May 13, 1908 (35 Stat., 128), should not be made to the designated beneficiaries of such men until further time has elapsed without their being heard from. (Comp. Dec, Mar. 15, 1910, file 26254—399, 109 Sec. 287. [Accounts of seamen on lost vessel.] The proper accounting officers of the Treasury are authorized, in settling the accounts of the petty officers, seamen, and others, not officers, on board of any vessel in the employ of the United States, which by any casualty, or in action with the enemy, has been or may be sunk or otherwise destroyed, together with the rolls and papers necessary to the exact ascertainment of the several accounts of the same at the date of such loss, to assume the last quarterly return of the paymaster of any such vessel as the basis for the computation of the subsequent credits to those on board, to the date of such loss, if there be no official evidence to the contrary. Where such quarterly return has, from any cause, not been made, the accounting officers are authorized to adjust and settle such accounts on principles of equity and justice. — (4 July, 1864, c. 948, s. 2, v, 13, p. 390.) See note to section 284, Revised Statutes. The Navy Regulations, 1913, contain the following article: "2042. (1) In case of the loss of the ship, her commanding officer shall remain by her with officers and crew as long as necessary and save as much Government property as possible. Every reasonable effort shall be made to save the log book, muster roll, accounts of officers and crew, and other valuable papers. " (2) If it becomes necessary to abandon the ship, ho should be the last person to leave her. " (3) He shall make a report of the circum- stances to the Secretary of the Navy as soon as possible and, if wrecked within the United States, shall repair to the nearest naval station with the crew of the ship. "(4) He shall, if in a foreign country, lose no time, after making all efforts to save prop- erty, in returning with the officers and crew to 268 Treasury Department. Ft. 2. RE VISED STAT UTES. Sec. 290. tlie fleet or squadron to which, they belong or, if acting singly, to the United States. He shall take steps for the preservation of the Govern- ment property saved, until it shall be disposed of in such manner as the department may direct. "(5) In the event of the loss of accounts of any person in the Navy, caused by wreck or otherwise, he shall proceed in accordance with article 1^924." The foUo-wing article is frora Naval In- structions, 1913: "4924. In the event of the loss of accounts occurring from the loss or capture of a ship of the Navy, the pay officer, on receiving a written order from the conamanding officer, shall open other accounts with the survivors, from the date of the disaster, giving to each person the rating he held at the time the accounts were lost; and the accounts so made out shall accompany the survivors on their transfer to a ship or station, the pay officer of which is to govern himself by these accounts in making payments or issues, until he receives further instructions from the Na\^ Department or the Auditor for the Navy Department." Sec. 288. [Compensation for personal effects lost. Repealed.] This section provided as follows: "The proper accounting officers of the Treas- ury Department are authorized, in settling the accounts of the petty officers, seamen, and others, not officers, on board of any vessel in the employ of the United States, which, by any casualty, or in action with the enemy, has been or may be sunk or otherwise destroyed, to allow and pay to each person, not an officer, employed on the vessel so sunk or destroyed, and whose personal effects have been lost, a sum not exceeding sixty dollars, as compensa- tion for the loss of his personal effects." — (4 July, 1864, c. 248, s. 2, v. 13, p. 390.) It was repealed by act of October 6, 1917 (40 Stat., 390). See note to section 290, Revised Statutes. A permanent annual appropriation is matle by section 3689, Revised Statutes, for "indem- nity to seamen and marines for lost clothing: To allow and pay to each person, not an officer, employed on a vessel of the United States sunk or otherwise destroyed, and whose personal effects have been lost, a sum not exceeding $60. In the event of the death of the person, this sum is to be paid to his proper legal representa- tives." Sec. 289. [Payment in case of death. Repealed.] This section provided as follows: " In case of the death of any such petty offi- cer, seaman, or other person, not an officer, stich payment shall be made to the widow, child or children, father, mother, or brothers and sisters jointly, following that order of pref- erence; such credits and gratuity to be paid . out of any money in the Treasury not otherwise appropriated."— (4 July, 1864, c. 248, s. 3, v. 13, p. 390.) It was repealed by act of October 6, 1917 (40 Stat., 390). See notes to sections 286, 288, and 290, Re- vised Statutes. The manner of settling accounts of deceased officers and enlisted men in the Na\'y and Ma- rine Corps, where the amotmt due is less than $500, is provided for by act of May 27, 1908 (35 Stat., 373). Payment of arrears due deceased enUsted men was pro^dded for by section 274, Revised Statutes. Payment of pension money in case of death of pensioners in Government Hospital for the Insane is pro\dded for by section 4839, Revised Statutes, as amended by act of February 2, 1909 (35 Stat., 592). Disposition of pensions and other moneys due deceased beneficiaries of Naval Home is pro- vided for by act of June 30, 1914 (38 Stat., 398). Disposition of money and effects of deceased persons in the naval service is regulated by act of March 29, 1918 (40 Stat., 499). See also 16 Op. Atty. Gen., 494. Sec. 290. [Allowance to officers for personal effects lost. Repealed.] This section provided as follows: " In case any officer of the Navy or Marine Corps on board a vessel in the employ of the United States which, by any casualty, or in action with the enemy, at any time since the nineteenth day of April, eighteen. hundred and sixty-one, has been or may be sunk or de- stroyed, shall thereby have lost his personal effects, without negligence or want of skill or foresight on his part, the proper accotmting officers are authorized, with the approval of the Secretary of the Navy, to allow to stich officer a sum not exceeding the amount of his sea- pay for one month as compensation for such loss. But the accounting officers shall in all cases require a schedule and certificate from the officer making the claim for effects so lost." — (6 April, 1866, c. 27, s. 1, v. 14, p. 14.) It was repealed by act of October 6, 1917 (40 Stat., 390), which contained new and com- plete provisions on the subject. Losses in time of peace. — By act of March 2, 1895 (28 Stat. 962), provision was made for adjustment of losses of officers and men in the naval service, in time of peace, due to ship- wreck or other marine disaster, limiting reim- bursement to such articles of personal property as are required by the Navy Regulations, and reqidring all claims to be submitted within two years from the occurrence of the loss; and stipidating that reimbursement shall be based on value of articles at the time of loss. Under this act it was made the duty of the accounting officers of the Treasur\^ to determine the value of the property so lost,' and the Secretary of the Treasur>' was required to certify all such losses 269 Sec. 290. Pt.2. REVISED STATUTES. Treasury Department. to tlie Speaker of the House of Representatives at tlie commencemeut of each res^ular session, who should lay same before Congress for con- sideration. This act was repealed and new provisions subtil ituted therefor by act of October 6, 1917 (40 Stat., 390). Destruction of TJ. S. S. "Maine."— By act iMarch 30, 1898 (30 Stat. 340), provision was made for relief of sufferers by the destruc- tion of the U. S. S. Maine, as follows: "That to reimburse the survivors of the offi- cers and crew of the United States steamer Maine, destroyed by an explosion in the harbor of Havana, Ciiba, on the fifteenth day of Feb- ruary-, eighteen hundred and ninety-eight, for losses incurred by them, respectively, in the destruction of said A'essel, there shall be paid to each of said survdvors, out of any money in the Trerusur^' of the United States not other- wise appropriated, a sum equal to the losses so sustained by them: Provided, That the account- ing officers of the Treasury shall in all cases require a schedule and affidavit from each per- son making a claim iinder tliis act, such sched- ule to be approved by the Secretary of the Na^-J'; and reimbursement shall be made for such articles of clothing, outfit, and for such personal effects only as are of a character and value and in quantity suitable and appropriate to the rank or rating and duty of the person by whom the claim is made: Provided further, That in no case shall the aggregate sum allowed for siich losses exceed the amoimt of twelve montlis' sea pay (\vithout rations) of the grade or rating held by such person at the time the losses were incurred. "Sec. 2. That the widow, child, or children, and in case there be not such, that the parent or parents, and if there be no parent, the brothers and sisters, of the officers, enlisted men, and others who were lost in the destriic- tion of said vessel, or who have died or who may die ^vithin one year from date of the dis- aster in consequence of injuries received in the destruction of said vessel, shall be entitled to and shall receive, out of any money in the Treasury of the United States not otherwise appropriated, to wit: The relative, in the order named, of the persons heretofore referred to, a sum equal to tweh'e months' sea pay of the grade or rating of each person deceased as afore- said: Provided, That the legal representatives of the deceased persons hereinbefore referred to shall also be paid from the Treasury of the United States any arrears of pay due the de- ceased at the time of their death: Provided further, That if any person who shall receive reimbursement under tliis act, for losses in- curred in said disaster, shall die witliin the year in consequence of injuries incurred in the destruction of said vessel, the amount so paid shall be deducted from the amount of twelve months' sea pay (without rations) allowed to such beneficiary^ by virtue of this act of relief. "Sec. 3. That the accoimting officers of the Treasury be, and they are hereby, authorized to continue for a period of three months any allotments which may have been made in favor of any relatives of the degrees herein- before enumerated by any of the officers and men attached to the United States ship Maine who lost their lives in or in consequence of the disaster to that vessel: Provided, That the amount of the allotments so continued shall be deducted from the amount of twelve months' sea pay allowed to such beneficiaries by virtue of this act for their relief. "Sec. 4. That the relief granted by the ^provi- sions of tliis act shall be in full satisfaction of any and all claims whatever against the United States on account of losses or death by the destruction of the United States steamer Maine, and any claim against the United States wliich shall be presented and acted upon under the authority of this act shall be held to be finally determined and shall not in any manner there- after be reopened, reconsidered, supplemented nor be subject to appeal in any form; and the method of presenting and establishing said claims hereinbefore presented shall be followed in lieu of those prescribed by acta or parts of acts heretofore enacted relating to the presenta- tion and allowance of similar claims: Provided, That nothing herein shall affect the right of any of the beneficiaries under this act to any pen- sion to which they may be entitled under exist- ing law after the expiration of one year from said fifteenth day of Februarj', eighteen hun- dred and ninety-eight. "Sec. 5. That no claims shall be allowed under the pro^-isions of this act wliich shall not be presented within two years after the date of its passage. "Sec 6. That the Secretary' of the Na^n,' be, and he is hereby, authorized, whenever in his discretion it may be deemed practicable and expedient, to cause the remains of all or any of those who perished in consequence of said disaster to be removed to the United States cemetery at Arlington: Provided, That the relatives of any of such deceased officers and others mentioned in this act who prefer that the remains of such be taken to their homes witlun the United States shall have such privilege extended to them, and the expense thereof shall be borne by the United States; and the sum of ten thousand dollars, or so much thereof as may be necessary, is hereby appropriated, out of any money in the Treasury not othermse appropriated, to carrj' out the provisions of this section . ' ' Fires at Washington Navy Yard. — The naval apj)ropr'ation act, JNIay 4, 1898 (30 Stat., 388), contained the follo"ning clause: ' ' To reimburse the enlisted men of the United States Marine Corps who incurred loss of cloth- ing by the fires which occurred at the naAn,'- yard, Washington, District of Columbia, on the twenty-second and twenty-ninth days of April, eighteen hundred and ninety-seven, fifty-one dollars and seventy-three cents: Provided, That the accounting officers of the Treasury^ shall in all cases require a schedule and certifi- cate from each person making a claim under this act." Wreck of TJ. S. S. "Charleston."— Bv act of February 7, 1903 (32 Stat., 804), provision was made for reimbursement of losses sus- tained in the wreck of the U. S. S. Charleston, as follows: ' ' That to reimburse the officers and crew of the United States steamship Charleston, destroyed on a coral reef off Camiguin Island, in the Phil- 270 Treasury Department. Ft. 2. REVISED STATUTES. Sec. 290. ippiues, November second, eighteen hundred and ninety-nine, for losses incurred by them, respectively, in the destruction of said vessel, there shall be paid to each of said officers and crew or to the personal representatives of any which may be deceased, out of any money in the Treasury of the United States not other- wise appropriated, a sum equal to the losses so sustained by them: Provided, That the ac- counting officers of the Treasury shall in all cases reqaii-e a schedule and certificate from each person making a claim under this act, such schedule to be approved by the Secretary of the Navy, who may require other satisfac- tory proof of said losses, and reimbursements shall be made for such losses as are of a char- acter and value suitable and appropriate to the rank, rating, or duty of the person suffering such loss: Provided, however, That in no case shall the aggregate sum allowed any claimant or person for such loss exceed the value of such articles of personal i)roperty as were required by the United States Naval Regulations in force at the time of such loss, and there shall be deducted therefrom any sum heretofore paid any of them under section two hundred and ninety of the Revised Statutes. "Sec. 2. That the relief granted by the pro- visions of this act siiall be in full satisfaction of any and all claims wiiatever against the United States on account of losses by the destruction of the United States steamship Charleston, and any claim which shall be presented and acted upon \inder the authority of this act shall be held to be finally deter- mined, and shall not in any manner thereafter be reopened, reconsidered, supplemented, nor be subject to ajjpeal in any form. " Sec. 3. That no claim for losses by reason of the destruction of said vessel not heretofore presented shall be allowed under the provisions of this act which shall not be presented within two years after the date of its passage. "Sec. 4. That any amounts that have been paid under sections two hundred and eighty- eight, two hundred and eighty-nine, and two hundred and ninety of the Revised Statutes shall be deducted in the settlement of all claims under this act." San Francisco fire. — The naval appropria- tion act of June 29, 1906 (34 Stat., 554), con- tained the following: "To reimburse officers and enlisted men of the Navy and Marine Corps who were on duty under orders in San Francisco during the recent fire in that city for losses of clothing and other personal effects sustained by them tlirough said fire, seven thousand dollars, or so much thereof as may be necessary: Provided, That such reimbursement shall be made under regu- lations to be prescribed by the Secretary of the Navy and ui)on vouchers to be approved by him in each case." Efifects destroyed to prevent spread of disease, — The Naval Instructions, 1913, con- tain the following provisions: "4750. Cl) Should it become necessary to destroy clotliing or other personal effects of officers or men to prevent the spread of disease, the commandant of the station or commanding officer of the ship shall direct a survey to be held on the articles, and the report, containing a list of the articles, with an estimate of tlieir value, approved by him, shall be transmitted to the Navy Department. The surveying officer shall base Ms estimate on the actual value of the articles destroyed and not on the original cost of the arti(des. " (2) No issue shall be made to persons in lieu of their effects so destroyed. They can only be reimbursed for such loss by certificate from the Treasury Department after the approval of the report of survey by the Secretary of the Navy." The annual deficiency appropriation acts contain appropriations under "Claims allowed by the Auditor for the Navy Department," for payment of claims "for destruction of clothing and bedding for sanitary reasons," cei'tified to Congress under section 2, act of July 7, 1884 (23 Stat., 254), which reads in part as follows: "That the Secretary of the Treasury shall, at the commencement of eac;h session of Con- gress, report the amount due each claimant whose claim has been allowed in whole or in part to the Speaker of the House of Repre- sentatives and the presiding officer of the Sen- ate, who shall lay tlie same before their respec- tive Houses for consideration. " In the Army the Secretary of War is author- ized to order gratuitous issues of clothing to soldiers who have had contagious diseases, and to hospital attendants who have niu-sed them, to replace any articles of their clothing de- stroyed by order of the proper medical officers to prevent contagion. (Sec. 1298, R. S.; 4 Comp. Dec, 26; see also act June 30, 1902, 32 Stat., 517. )_ Where private property is destroyed by the Government for its own benefit, with the assent of the o^vner, a contract is implied to make compensation for its value. (7 Comp. Dec, 767.) Payment of the value of a house belonging to an Indian and located on an Indian reserva- tion, which was destroyed by officers of the Government to prevent the spread of dis- ease, may be made from an appropriation pro- viding for the support and civilization of Indians. (12 MSS. Comp. Dec, 1098.) Reimbursement for articles of clothing be- longing to Government employees, destroyed to prevent the spread of smallpox, may fairly be considered as coming within the scope of medical attendance to which such employees were entitled. (12 MSS., Comp. Dec. 462. See Comp. Dig., p. 610.) New statutory provisions superseding prior laws and providing generally for the reimbursement of persons in the naval service for property lost or destroyed in such service, are contained in the act of October 6, 1917 (40 Stat., 389.) CLAIMS FOR REIMBURSEMENT. Jurisdiction was not conferred upon the Court of Claims by the act of March 2, 1895, and suit for such losses was not authorized under that act. (Harllee v. U. S., 51 Ct. Cls., 342; see also U. S. r. Babcock, 250 U. S., 328). Marine Corps. — Officers and enlisted men of the Marine Corps are not entitled to reim- 271 Sec. 290. Ft. 2. REVISED STATUTES. Treasury Department. barsement for loss of personal effects in accord- ance with laws relating to the Army; but are entitknl to such reimbursement under the same circumstances as if they were in the Navy proper. (3 Comp. Doc, G59; Ilarllee v. U. S., 51 Ct. Cls., 342; compare 4 Comp. Dec, 26.) Not a gratuity. ^The amount to which an officer or enlisted man is entitled under the law for private property lost or destroyed is by way of reimbursement, and is not a gratuity; and accordingly, where an officer died before re- ceiving the amount due him for private prop- erty lost by the wreck of a vessel, held that such amount may be paid to the legal representati v^es of the deceased officer or to the persons entitled to take his personal propertv upon his decease. (8 Comp. Dec, 688.) [See note to section 289.] Losses in time of war. — The act of March 2, 1895 (28 Stat., 962), above noted, which pro- vided for reimbursement for private property belonging to officer? or enlisted men of the Navy, lost or destroyed by shipwreck or other marine disasster, and which further provided ' ' that this act sliall Jiot apply to losses sxistained in time of war," was not applicable to private property lost on the U. S. S. Charleston while operating with the land forces of the United States in the suppression of the local insurrection in the Philippine Islands on November 2, 1899. WTiile the United States was not at war with any recognized power, nevertheless, held, for the purpose of this act (Mar. 2, 1895), a state of war existed as to all the military forces of the United States directly engaged in the suppres- sion of said insurrection. However, in such cases reimbursement was allowed under sec- tions 288-290, Revised Statutes. (7 Comp. Dec, 345; see also, 9 Comp. Dec, 527.) [Spe- cial provision was subsequently made by Con- gress for the relief of officers and crew of the Charleston, as shown by act above quoted.] Prior laws enlarged by act of March 2, 1895.— Sections 288-290 provided for certain limited payments to officers and men, only when they were "on board a vessel in the em- ploy of the United States." Under the act of March 2, 1895, payment was authorized in any case where the property was lost in the naval service by shipwreck or marine disaster, without regard to the character of the vessel the goods were on at the time of the loss. The claimant, however, was required to show that such loss was without fault or negligence on his part, unless the property was shipped in an unsea- Avorthy vessel by order of an officer autliorized to give such order, in which case such proof was not required. (2 Comp, Dec, 30.) The act of March 2, 1895, was intended to be an enlargement of previous laws providing for the reimbursement of officers and seamen for property lost or destroyed in the naval service, and therefore was to be liberally construed. It appeared from this act that sections 288-290, Revised Statutes, were directly under the con- sideration of Congress at the time of its enact- ment. (2 Comp. Dec, 30; 1 Comp. Dec, 441.) The act of March 2, 1895, authorized payment in the case of petty officers and seamen who died prior to the passage of the said act. It has several times been held that acts making pro- vision for the payment of additional compensa- tion or bounty are personal and for the benefit only of those living at the time the act takes effect, unless something therein clearly indi- cates tluit the intention of Congress was that others should receive the beneiit of the pro- vision. As section 289, Revised Statutes, pro- vided for payment in the cases of persons, other than officers, who had tlied, and as the act of March 2, 1895, required any payment under section 289 to be deducted from the amount to to be paid under tlie provisions of said act, an intention upon the part of Congress to make the act apply to patty officers, seamen, and others in the naval service, not officers, who were already dead when the act was passed, seems clear. Wliether the act also applied to the cases of officers wlio had died before that date was not decided in this case. (1 Comp. Dec, 473.) [As to officers who die before recei\'ing payment, see note above, " Not a gratuity."] "Shipwreck or other marine disaster," within the meaning of the act of March 2, 1895, was intended to cover shipwreck or marine dis- aster to the ship itself, involving a total or partial destruction or casting away of tlie ship, and not suck a temporary disaster as waves washing over the sliip's decks or like misfortune necessarily incident to sea service. (1 Comp. Dec. 441; followed Comp. Dec, Apr. 25, 1911, App. No. 19972, file 26254-692.) JURISDICTION, ACCOUNTING OFFICERS AND SECRETARY OP THE NAVY. See note to section 236, Revised Statutes, on general subject of jurisdiction of account- ing officers and heads of executive depart- ments. Secretary's approval not conclusive. — In settlements under section 290, Revised Statutes, it was never regarded that the sched- ule and certificate of the officer, with the ap- proval of the Secretary, were conclusive upon the accounting officers or relieved them from responsibility of making further investigations and disallowing any portion of a claim which to them seemed unwarranted by the law or the facts. (4 Comp. Dec, 590.) Under the act of February 7, 1903, for reim- bursing the officers and crew of the U. S. S. Charleston, an officer was not entitled to reim- bursement of a greater amount than the aggregate value of the articles of personal property which were required by the naval regulations in force at the time of the loss, even though his claim for a greater amount had been approved by the Secretary of the Navy. (10 Comp. Dec, 456; see also Little v. U. S., 41 Ct. Cls., 408.) See act of October 6, 1917 (40 Stat., 389), and see United States v. Babcock (250 U. S., 328). Secretary's approval limits maximum amount to be allowed. — Under the act of March 30, 1898 (quoted above), providing that ' ' the accounting officers of the Treasury shall in all cases require a schedule and affidavit from each person making a claim " for losses incurred by them by the destruction of the U. S. S. Maine, "such schedule to be approved by the Secretary of the Navy," the approval by the Secretary of the Navy was not conclusive upon the accounting officers. The reasonable inter- pretation of the act was that the schedule was 272 Treasury Department. Pt.2. REVISED STATUTES. Sec. 290, required to be approved by the Secretary of the Navy as a safeguard against the allowance of unjust and exorbitant claims, arising from the fact that the accounting officers, without the ad- vice and approval of the Navy Department, were not in a position to judge so intelligently as to what articles are suitable and appropriate for an officer or enlisted man of the rank or rating and duty of the claimant. The effect was to put a limitation upon the jurisdiction of the account- ing officers, and to preclude the allowance of anything not having the approval of the Secre- tary of the Navy, but leaving their jm-isdiction unimpaired as to items and amounts approved by him. While, therefore, the schedule and affidavit of an officer making claim under this act (Mar. 30, 1898), when approved by the Secretary, made out on their face a prima facie claim as contemplated by the act, they were by no means conclusive upon the accounting offi- cers except to limit their jurisdiction to a con- sideration of items and amounts so presented. The approval of the Secretary of the Na\'y was required by the law before the claim could be considered by the accounting officers, and while the Auditor might be justified in allowing a claim upon such approval of the Secretary of the Navy, the Auditor was not concluded thereby if in his judgment additional proof wasnecessary and proper to a fair and just adjudication of the claim. In reaching his conclusions, great weight should, of course, be given to the de- cision of the Secretary, both as to what articles were necessary and appropriate for the rank of the claimant, and also as to the value of such articles. But within the limitations imposed by the Secretary's approval, the claim should be settled in the same manner as other claims of a similar nature. (4 Comp. Dec, 587.) [It will be noted that the act of June 29, 1906, above quoted, relative to the San Francisco fire, was broader in its terms than that con- sidered in the Comptroller's decision last above cited. No question of jurisdiction arose under the San Francisco act, which provided that "reimbursement shall be made under regula- tions to be prescribed by the Secretary of the Navy and upon vouchers to be approved by him in each case." Only one claim under this act was considered by the Comptroller of the Treasury, and was allowed as of course, the Comptroller saying: "The said claim was ap- proved on August 27, 1907, by the Secretary of the Navy in the amount of 147.44. Upon this revision, therefore, the claimant will be al- lowed $47.44, the amount approved by the Secretary of the Navy." (Comp. Dec, Sept. 16, 1907, Appeal No. 12726, file 4753-95.)] Accounting' oflB.cers bound by naval reg- ulations. — Under the act of March 2, 1895 (28 Stat. 962, above noted), the accounting officers were bound by the official statement of the Chief of the Bureau of Navigation as to what articles were a part of the necessary outfit required by the regulations. While the number required by the regulations might be below that with which the men were usually provided, still no discretion lay in the accounting officers to go behind the regulations fixed by the naval au- thorities who were famiUar with the needs of the men. (2 Comp. Dec, 150.) LIMITATIONS UPON CLAIMS. Value at date of loss. — In settling claims under the act of March 2, 1895 (above noted), it was held that the accounting officers must al- low the actual value of private property at the date of the loss or destruction, when such actual value is proved by the claimant. As petty offi- cers and seamen in the naval service are not required to procure their clothing and personal effects from the paymaster upon requisitions, they are not limited to the paymaster's issuing price, but may prove their claims by such evi- dence as is required to clearly establish the actual value of their property at the date of loss or destruction. In the absence of such proof, the "issuing price" may be accepted aa a fair valuation. (2 Comp. Dec, 150.) Articles required by regulations. — Offi- cers and men presenting claims under the act of March 2, 1895 (above noted), could be reim- bursed only for "such articles of personal property as are required by the U. S. Naval Regulations" both as to number and kind, and the accounting officers could not allow claims for articles in excess of the regulation requirements, which they were permitted to carry for their personal comfort or convenience. (2 Comp. Dec, 150; 1 Comp. Dec, 441.) Articles not required by regulations but within limit of amount. — The act of February 7, 1903 (quoted above), did not limit reimbursement for losses on the Charles- ton to articles required by the regulations, but on the contrary permitted payment to be made for any article lost that was suit- able and appropriate to the rank, rating, or duty of the person suffering such loss, though such article may not have been required by the regulations; but the whole amount which could be allowed was strictly limited to the total value of articles required by the Navy Regulations. To illustrate, if a special full dress suit was required, and it appeared that the officer did not lose such an article, the value of that article could be allowed him through reimbursement for the loss of some other article or articles which, while not required by the regulations, were nevertheless suitable to the rank or duty of the officer. It was possible under this law for an officer or enlisted man who had lost no article required by the regulations, to receive a large sum for the loss of other arti- cles, but the sum allowed could be no greater than the total value of the articles required by the regulations. (Letter of Comptroller of the Treasury to the Secretary of the Navy, Nov. 5, 1903, Appeal No. 9569, file 9410, 2527, 1903; 1370-1903.) What articles required by regulations. — An examination of the volume entitled "U. S. Navy Regulations " fails to disclose information as to what articles are required. Under these circumstances, not only have the Uniform Regulations been followed, but also, in order to ascertain what was required by the regulations of the Navy, an official itemized statement was obtained from the Chief of the Bureau of Navi- gation, giving the character and number of such articles. If this statement could not be ac- cepted, then it appears that there were in fact 273 Sec. 300. Pt.2. REVISED STATUTES. Treasury Department. no Naval Regulations as contemplated in the act (Mar. 2, 1895). However, the expression "naval roj;ulations" should be construed in accordance with the intention of Congress, and the manifest purpose of the act being to reim- burse the officers and seamen for the loss of clothing required by the rules and rej^ulations of the Navy, the statement of the Chief of the Bureau of Navigation, transmitted by the Secre- tary of the Navy, giving the number and char- acter of the articles required by the regula- tions, must be treated as the best evidence of what was required by the U. S. Naval Regula- tions referred to in the act. (2 Comp. Dec. 150.) [See note to section 161, Revised Statutes.] Sec. 297. [Auditors may administer oaths.] Tlie several Auditors are empowered to administer oaths to witnesses in any case in which they may deem it necessary for the due examination of the accounts with which they shall be charged.— (3 Mar., 1817, c. 45, s. 12, v. 3, p. 368. 8 Jmie, 1872, c. 335, s. 24, V. 17, p. 228.) See sections 184, 185, and 186, Revised Statutes, relative to seciu*ing attendance of witnesses. See note to section 183, Re-vdsed Statutes, con- cerning oaths in cases arising in the Navy. Sec. 300. [Allowance of lost checks.] Whenever the disbursing officer or agent by whom was issued any check which has been lost, destroyed, or stolen is dead, or no longer in the service of the United States, the proper accounting oflScer shall, under such regulations as the Secretary of the Treasury may pre- scribe, state an account in favor of the owner of such original check for the amount thereof, and charge such amount to the account of such officer or agent.— (2 Feb., 1872, c. 12, ss. 1, 2, v. 17, p. 29.) The substance of this provision is repeated in section 3647, Revised Statutes, which sec- tion was amended and reenacted by act of February 23, 1909 (35 Stat., 643.) Regulations prescribed by the Secretary of the Treasury concerning lost checks are given in article 4337, Navy Regulations, 1913. See note to section 251, Revised Statutes, on general subject of regulations of the Treas- ury Department. 274 CHAPTER FIVE. THE TREASURER. Sec. 301. [Treasurer.] There shall be in the Department of the Treasury a Treasurer of the United States, who shall be appointed by the President, by and with the advice and consent of the Senate, and shall be entitled to a salary of six thousand five hundred dollars a year. — (2 Sept., 1789, c. 12, s. 1, v. 1, p. 65. 23 July, 1866, c. 208, s. 2, v. 14, p. 206. 3 Mar., 1875, c. 130, s. 2, v. 18, p. 397.) The salary of the Treasurer of the United States was fixed at |S,000 per annum by the act of March 4, 1909 (35 Stat., 1065). The rooms provided in the Treasury Building' at the seat of government for the use of the Treasirrer are by law the "Treasury of the United States" (sec. 3591, R. S.); assistant treasurers are authorized and have been appointed to serve at New York and other cities (sec. 3595, R. S. ) ; the rooms assigned by law to be occupied by them are appropri- ated to their use and for the safekeeping of the public money deposited with them (sec. 3598, R. S.); the assistant treasurers are to have the charge and care of the rooms, etc., assigned to them, and to perform the duties required of them relating to the receipt, safekeeping, and disbursement of public money (sec. 3599, R. S.); all collectors and receivers of public money of every description within the city of New York and other cities are required, as often as may be directed by the Secretary of the Treasury, to pay over to the assistant treasurer in their re- spective cities all public money collected by them or in their hands (sec. 3615, R. S.); the Treasurer of the United States and all assistant treasurers are requu'ed to keep all public money placed in their possession until the same is ordered by the proper department or officer of the Government to be transferred or paid out, and when such orders are received, faithfully and promptly to comply with same ; and to per- form all other duties as fiscal agents of the Gov- ernment that may be imposed by any law or by any regulation of the Treasury Department made in conformity with law (sec. 3639, R. S.); all money paid into the Treasury of the United States is subject to the draft of the Treasurer; and for the purpose of payment on the public account the Treasurer is authorized to draw on any of the depositories as he may think most conducive to the public interest and the con- venience of pubUc creditors. (Sec. 3644, R. S.) (Cooke V. U. S., 91 U. S., 398.) Adjustment of accounts. — All claims against the United States are to be settled and adjusted in the Treasury Department, and that is located "at the seat of Government." The assistant treasurer in New York [or elsewhere] is a custodian of public money which he may pay out or transfer upon the order of the proper de- partment or officer; but he has no authority to settle and adjust — that is to say, to determine upon the validity of, any claim against the Gov- ernment. He can pay only after the adjust- ment has been made "in the Department of the Treasury," and then upon drafts drawn for that purpose by the Treasurer. (Cooke v. U. S., 91 U. S., 399.^ Sec. 303. [Assistant Treasurer.] There shall be in the Department of ths Treasury an Assistant Treasurer of the United States, who shall be appointed by the President, by and with the advice and consent of the Senate, and shall be entitled to a salary of two thousand eight hundred dollars a year. — (3 Mar., 1863, c. 89, s. 1, V. 12, p. 761. 25 June, 1864, c. 147, s. 2, v. 13, p. 159.) See note to preceding section. The compensation of the Assistant Treasurer has been increased in annual appropria- tion acts to 13,600 per annum. See act of March 4, 1913 (37 Stat., 755). Additional "assistant treasurers of the United States," located in various cities, are pro- vided for by sections 3594 and 3595, Re- vised Statutes. Sec. 305. [Duties of the Treasurer.] The Treasurer shall receive and keep the moneys of the United States, and disburse the same upon warrants drawn 275 Sec. 306. Ft. 2. REVISED STATUTES. Treasury Department. by the Secretary of the Treasury, countersigned by either Comptroller, and recorded by the Rc2:istcr, and not other^^'ise. He shall take receipts for all moneys paid by him, and shall give receipts for all moneys received by him; and all receipts for moneys received by him shall be indorsed upon warrants signed by the Secretary of the Treasury, without which warrant, so signed, no acknowledgment for money received into the public Treasury shall be valid. He shall render his accounts to the Fu*st Comptroller quarterly, or oftener if required, and shall transmit a copy thereof, when settled, to the Secretary of the Treasury. He shall at all times submit to the Secretary of the Treasury and the First Comptroller, or either of them, the inspection of the moneys m his hands.— (2 Sept., 1789, c. 12, s. 4, v. 1, p. 65.) See note to section 301, Revised Statutes. So much of this section as required the Register of the Treasury to record warrants was re- pealed by act of July 31, 1894, section 11 (28 Stat., 209). The title "First Comptroller" was changed to "Comptroller of the Treasury" and the office of Second Comptroller was abolished by act of July 31, 1894, section 4 (28 Stat., 206). The accounts of the Treasurer are to be received and examined by the Auditor for the Treasury Department. (Act July 31, 1894, sec. 7, 28 Stat., 206.) Payments upon warrants. — The judg- ments of the Court of Claims, even when affirmed by the Supreme Court, and allowances made by the Secretary of the Treasury or other public officers under authority of law, can not be paid Sec. 306. [Liabilities outstanding three or more years.] At the termina- tion of each fiscal year all amounts of moneys that are represented by certifi- cates, drafts, or checks, issued by the Treasurer, or by any disbursing officer of any Department of the Government, upon the Treasurer or any assistant treasurer, or designated depositary of the United States, or upon any national bank designated as a depositary of the United States, and which shall be represented on the books of either of such offices as standing to the credit of any disbursing officer, and which were issued to facilitate the payment of warrants, or for any other purpose in liquidation of a debt due from the United States, and which have for three years or more remained outstanding, unsat- isfied, and unpaid, shall be deposited by the Treasurer, to be covered into the Treasury by warrant, and to be carried to the credit of the parties in whose favor such certificates, di'afts, or checks were respectively issued, or to the persons who are entitled to receive pay therefor, and into an appropriation accoimt to be denominated "outstanding Uabilities." — (2 May, 1866, c. 70, ss. 1, 4, V. 14, pp. 41, 42.) by the Treasurer except upon a warrant drawn by the Secretary of the Treasury, counter- signed by the Comptroller of the Treasury, in pursuance of appropriations made by law. (Ravesies v. U. S., 21 Ct. Cls., 243.) [See note to section 236, Revised Statutes.] All warrants are required to be countersigned by the Comptroller of the Treasury under section 11, act of July 31, 1894 (28 Stat., 209); under section 4 of the same act (28 Stat., 206), power is given to the Assistant Comptroller of the Treasury, under direction of the Comp- troller of the Treasury, to countersign all war- rants; and the chief clerk in the office of the Comptroller of the Treasury is empowered, in the name of the Comptroller of the Treasury, to countersign all warrants except accountable warrants. See sections of the Revised Statutes set forth below, and notes thereto. Regulations in pursuance of sections 306-310, Revised Statutes.— The Navy Regulations, 1913, contain tlie following article: " 4334. The following regulations made by the Secretary of the Treasury, in pursuance of sec- tions 306 to 310 of the Revised Statutes, shall be observed by all officers: " (a) Any Treasury draft or any check drawn by a public disbursing officer still in service, which shall be presented for payment before it shall have been issued three full fiscal years, will be paid in the usual manner by the oflicer or bai^ k on wliich it is drawn, and from funds to the credit of the drawer. Thus, any such draft or check issued on or after July 1, 1909, will be paid as above stated until June 30, 1913, and the same rule will apply for subsequent years. " (6) Any such draft or check which has been issued for a longer period than three full fiscal years will be paid only by the settlement of 276 ^ Treasury Department. Ft. 2. REVISED STATUTES. Sec. 306. an account in the Treasurj^ Department, as pro^^.ded in section 308, Revised Statutes, and for this purpose the draft or check will be trans- mitted to the Secretary of the Treasury for the necessary action . ' ' (c) At the close of each fiscal year, the Treas- urer, the several assistant treasurers, and the national-bank depositaries will render to the Secretary of the Treasury, as required by sec- tion 310, a list of all disbursing officers' accounts still unclosed which have remained unchanged on the books of their respective offices or banks, either by debit or credit, more than three fiscal years, giving in each case the name and official designation of the officer, the date when the accoimt with him was opened, the date of last debit and last credit, and the balance remain- ing to hia credit. ^\d) Every disbursing officer will, on the 30th of June of each year, as also required by section 310, make a return to the Secretary of the Treasury of all checks drawn by him which have been outstanding and unpaid for three full fiscal years, stating the number of each check, its date, amount, in whose favor, on what office or bank, and for what purpose drawn , the number of the voucher in payment of which it was drawn, and, if known, the residence of the payee. "(e) Whenever any disbursing officer of the United States shall cease to act in that capacity, he will at once inform the Secretary of the Treasury whether he has any public funds to his credit in any office or bank, and, if so, what checks, if any, he has drawn against the same which are still outstandmg and unpaid. Until satisfactory information of this character shall have been furnished, the whole amount of such moneys will be held to meet the payment of his checks properly payable therefrom. "(/) In case of the death, resignation, or re- moval of a public disbursing ofiicer, any check pre^iou8ly drawn by him and not presented for payment within four months of its date will not be paid until its correctness shall have been attested by the Secretary or Assistant Secretary of the Treasury. " {g) If the object or purpose for which any check of a public disbursing officer is drawn is not stated thereon, as required by the follow- ing article, or if any reason exists for suspecting fraud, the office or bank on which such check is drawn will refuse its payment." Statute of Limitations. Does not run until demand and refusal. — Where the amount of lost checks was covered into the Treasury in pursuance of this section, the promise of the Government, contained in the statute, to hold money so paid into the Treasury, was a continuing promise, available to the drawee or his administratrix at any time, to which full force should be given; when application was made by the administratrix to the Secretary of the Treasury for payment of the checks by the issue of Treasury warrants under the authority conferred by sections 306, 307, 308, Revised Statutes, and such application was refused, then for the first time a claim for the breach of the contract accrued, and the statute of limitations began to run from the date of the refusal. (U. S. v. Wardwell, 172 U. S., 48; 26 Op. Atty. Gen., 194.) Where it is established that funds in the hands of the Government are held in trust, it follows that no part of such funds is subject to the operation of the statute of limitations. (State of Louisiana v. U. S., 23 Ct. Cls., 53.) The claim for such funds first accrues, within the meaning of the statute of limitations, when it is first presented to the Secretary of the Treasury. (Harrison v. U. S., 20 Ct. Cls., 175.) [In U. S. V. Taylor, 104 U. S., 216, it was held that when the surplus proceeds of real estate, sold for a direct tax due the United States, is deposited in the Treasury to be there held for the use of the owner of the property, the statute of limitations runs from the date of his appli- cation to the Secretary of the Treasury for that surplus.] Analogous to trust fund. — Wliere the amount of an unclaimed draft issued by the Government was covered into the Treasury, and about 16 years later demand for paj-Tnent was made and refused; held, that after the draft was issued the Government held the fimd in the nature of a trust, and that the statute of limitations as to claims cognizable by the Court of Claims did not begin to run until the date of demand. (Ray ^.U. S., 50 Fed. Rep., 166. See also Ravenel et al. v. U. S., 23 Ct. Cls., 192.) Disavowal of trust. — An act repealing an appropriation must be regarded as a disavowal of the trust; and it must be held that the statute of limitations began to run at the date of the repealing act. (Russell v. U. S., 37 Ct. Cls., 113.) Where money appropriated by Congress is not paid to the beneficiary but is covered into the Treasury under this section and carried to the credit of the party for whose benefit the appropriation was made, it may be regarded as an express trust, subject to the qualification that the statute of limitations will begin to run as soon as the trust is openly disavowed by the trustee. (Russell v. U. S., 37 Ct. Cls., 113.) The statute of limitations can not be set up against money credited to a claimant in the appropriation account of "outstanding liabil- ities. " Such money is held as a trust fund, payable on demand without limit of time. The statute of limitations does not run against it until the trustee disavows the trust. (Wayne V. U. S., 26 Ct. Cls., 274.) Proof of identity sufl&cient. — There is much indebtedness of the United States which no lapse of time in making appUcation for pay- ment renders stale, such as interest on regis- tered bonds and other balances stated in favor of parties on the books of the Treasury Depart- ment, as to which the only proof to be made is the identity of the claimant or his right to represent the record creditor. (Waddell v. U. S., 25 Ct. Cls., 323, citing sees. 306, 307, 308, R. S., and Hall's Case, 17 Ct. Cls., 39.) Merger of original claim.^ — It has been held that an action may be maintained against the Government upon a Treasury draft issued in payment of an account which has been audited and certified at the Treasury, notwithstanding that the original cause of action is barred by the statute of limitations. (Buffalo Bayou R. Co. V. U. S., 16 Ct. Cls., 238.) 277 Sec. 308. Pt.2. REVISED STATUTES. Treasury Department. WTieu a claim passes intxD the form of checks, its legal character changes from that of a (leniaud for goods 8t)ld and delivered to a claim repre- sented by the checks given in liquidation of the original demand. It then becomes a legal obligation arising upon the new form of indebt- edness. The fund establi.*hed by section 306, Revised Statutes, bears upon it the impress of a trust, payable on demand ^vilhout limit of time; and the statutes of limitations can not be set up against money so credited to the claimant in the permanent appropriation for outstanding liabilities. (Wardwell v. U. S., 32 Ct. Cls., 30.) Juiisdiction. of Court of Claims. — Where a Government check is lost or stolen, the Re\nsed Statutes (sees. 306-310, 3646) do not require that payment must be postponed for three years or preclude a suit. They simply authorize disbursing officers to dupUcate small checks in certain cases. The power given to the accounting officers to duplicate lost checksis not exclusive and does not affect the jurisdic- tion of the courts. (Becker v. U. S., 26 Ct. Cls 172, 177.) Character of outstanding draft. — A Treasury draft outstanding for more than three years, the appropriation to pay it covered into the Treasury, has ceased to be negotiable paper. (Harris i;. U. S., 27 Ct. Cls., 177.) A claimant having an amount rightly due to her, standing to her credit on the books of the Treasury under section 306, Revised Statutes, is entitled to recover though a draft more than three years outstanding for the same debt is in the hands of a thu-d person. (Harris v. U. S., 27 Ct. Cls., 177.) Sec. 307. [Vouchers for drafts remaining unpaid.] The certificate of the Register of the Treasury, stating that the amount of any draft issued by the Treasurer, to facihtate the payment of a warrant directed to him for payment, has remained outstanding and unpaid for three years or more, and has been deposited and covered into tlie Treasury in the manner prescribed by the pre- ceding section, shall be, when attached to any such warrant, a sufficient voucher in satisfaction of any such warrant or part of any warrant, the same as if the drafts correctly indorsed and fully satisfied were attached to such warrant or part of warrant. And all such moneys mentioned in this and in the preceding section shall remain as a permanent appropriation for the redemption and payment of aU such outstanding and unpaid certificates, drafts, and checks.— (2 May, 1866, c. 70, s. 2, v. 14, p. 41.) This section was amended byactof July31, 1894, section 16 (28 Stat., 210); by substituting the words "Secretary of the Treasury" for the words "Register of the Treasury" as given above. See note to preceding section. Sec. 308. [Payment upon presentation of outstanding drafts.] The payee or the bona-fide holder of any draft or check the amount of which has been deposited and covered into the Treasury pursuant to the preceding sections, shall, on presenting the same to the proper officer of the Treasury, be entitled to have it paid by the settlement of an account and the issuing of a warrant in his favor, according to the practice in other cases of authorized and liqui- dated claims against the United States. — (2 May, 1866, c. 70, s. 3, v. 14, p. 42.) See note to section 306, Revised Statutes. Not merely matter of bookkeeping. — If bookkeeping was the only matter sought to be provided for by sections 306, 307, and 308, Re- vised Statutes, there were no need of section 308. That prescribes payment, and payment in a particular way. The payee does not simply surrender his check and receive money; but "on presenting the same to tlie proper officer" he is "entitled to have it paid by the settlement of an account and the issuing of a warrant in liis favor." This may be mere machinery for payment, but it is machinery not used or required until after the money has been "covered into the Treasury by warrant" and "carried to the credit" of the payee. The right given is the right to surrender the check and receive a wan'ant on the Treasury. It will also be noticed that the purpose of the act of 1866 upon which these sections are based was, as expressed in its title, not merely to "facili- tate the settlement of the accounts of the Treasurer of the United States," not merely to perfect a system of bookkeeping, but also "to secure certain moneys * * * to persons to whom they are due and who are entitled to receive the same." In other words, the pur- pose of the Government by this statute is to secure to each party who holds Government paper the amount thereof, to place it in the Treasury to his credit, and to prescribe a method by wliich, whenever he wishes, he can obtain it. No time is mentioned in which he must apply for a warrant or after which the money is forfeited to the Government. When the contract created by the promise made in 278 Treasury Department. Pt.2. REVISED STATUTES. Sec. 310. section 308 is broken, then a claim for the for by proof that it was stolen and has not been breach of such contract first accrues and the lieard of for more than seventeen years. In limitation begins to run. (U. S. v. Wardwell, such a case it is not necessary for the claimant 172 U.S., 48; see also Ray t;.U. S., 50 Fed. Rep., to give a bond of indemnity. (Wayne v. U. S., 166.) 26 Ct. Cls., 274. See also U. S. v. Wardwell, Payment without bond. — The nonproduc- 172 U. S., 48.) tion of a Treasury draft is sufficiently accounted Sec. 309. [Accounts of disbursing officers unchanged for three years.] The amounts, except such as are provided for in section three hundred and six, of the accounts of every kind of disbursing officer, which shall have remained un- changed, or which shall not have been increased by any new deposit thereto, nor decreased by drafts drawn thereon, for the space of tkree years, shall in like manner be covered into the Treasuiy, to the proper appropriation to which they belong; and the amounts thereof shall, on the certificate of the Treasurer that such amount has been deposited in the Treasury, be credited by the proper accounting officer of the Department of the Treasury on the books of the Department, to the officer in whose name it had stood on the books of any agency of the Treasury, if it appears that he is entitled to such credit. — (2 May, 1866, c. 70, s. 5, V. 14, p. 42.) See notes to sections 306-308, Revised Statutes. Sec. 310. [Annual reports of disbursing officers, etc.] The Treasurer, each assistant treasurer, and each designated depositary of the United States, and the cashier of each of the national banks designated as such depositaries, shaU, at the close of business on every thirtieth day of June, report to the Secretary of the Treasury the condition of every account standing, as in the preceding section specified, on the books of their respective offices, stating the name of each depositor, with his official designation, the total amount remaining on deposit to his credit, and the dates, respectively, of the last credit and the last debit made to each account. And each disbursuig officer shall make a like return of all checks issued by him, and which may then have been outstanding and unpaid for three years and more, stating fuUy in such report the name of the payee, for what purpose each check was given, the office on which drawn, the number of the voucher received therefor, the date, number, and amount for which it was drawn, and, when known, the residence of the payee. — (2 ]V[ay, 1866, c. 70, s. 6, V. 14, p. 42.) For modification of this section, see act of July 1, 1916, section 5 (39 Stat., 336). Disbursiug officers are required to furnish heads of departments with certain infor- mation for annual report to Congress (sec. 193, R. S.) 279 TITLE yill. THE DEPARTMENT OF JUSTICE. Sec. 346. Establishment of Department of Justice. 347. Solicitor General. 349. Naval solicitor, etc. 354. Opinions of Attorney General required by the President. 355. Title to and jurisdiction over land pur- chased by the United States. 356. Opinions of Attorney General required by heads of departments. 357. Legal advice to Departments of War and Navy. 358. Reference of questions by Attorney Gen- eral to subordinates. 359. Conduct and argument of cases. 360. Performance of duty by officers of Depart- ment of Justice. Sec. 361. Legal services required by the President, heads of departments, and subordinates. 362. Superintendence of district attorneys and marshals. 363. Retaining counsel to aid district attorneys. 364. Attendance of counsel to be provided by Attorney General. 365. Counsel fees restricted. 366. Appointment and oath of special attorneys or counsel. 367. Interest of United States in pending suits, who may attend to. 383. Publication of opinions. Sec. 346. [Establishment of Department of Justice.] There shall be at the seat of Government an Executive Department to be known as the Department of Justice, and an Attorney-General, who shall be the head thereof. — (24 Sept., 1789, c. 20, s. 35, v. 1, p. 92. 22 June, 1870, c. 150, s. 1, v. 16, p. 162.) See sections 187, 188 and 189, Revised Statutes, and sections 180. 185, Judicial Code, act of March 3, 1911 (36 Stat., 1142), as to duties of the Attorney General. See note to section 158, Revised Statutes, as to organization and growth of executive de- partments, etc. There is no very specific statement of the general duties of the Attorney Gen- eral, but it is seen from the whole chapter that he has authority, and it is made his duty, to supervise the conduct of all suits brought by or against the United States, and to give advice to the President and the heads of other depart- ments of the Government. He is invested with the general superintendence of all suits to be brought against the debtors of the Government, or upon bonds, or to begin criminal prosecu- tions or to institute proceedings in any of the numerous cases in which the United States is plaintiff. All the district attorneys who do bring them in the various courts in the country are placed under his immediate direction and control . He is undoubtedly the officer who has charge of the institution and conduct of the pleas of the United States and of the litigation which is necessary to establish the rights of the Government. He is the officer to determine when the United States shall sue, for whatit shall sue, and to be responsible that such suits are brought in appropriate cases. In all this, however, the Attorney General acts as the head of one of the executive departments, repre- senting the authority of the President in the class of subjects within the domain of that department and under his control. (U. S. v. San Jacinto Tin Co., 125 U. S., 273.) The Attorney General is given "general su- perintendence and direction" of the district attorneys, in whom Congress has vested the initial power of prosecution. (In re Beavers, 131 Fed. Rep., 366.) The provisions of law concerning the Department of Justice "are too conclusive and too specific to leave any doubt that Con- gress intended to gather into the Department of Justice, under the supervision and control of the Attorney General, all the litigation and all the law business in which the United States are interested, and which previously had been scattered among different pubUc officers, de- partments, and branches of the Government, and to break up the practice of frequently em- ploying unofficial attorneys for the public serv- ice." (Perry v. U. S., 28 Ct. Cls., 491.) Proceedings before grand jury. — Neither the Attorney General, the Solicitor General, nor any officer of the Department of Justice is authorized by sections 359, 367, or other provi- sions of the Revised Statutes of theUnited States, to conduct or to aid in the conduct of proceed- ings before a grand jury, nor has a special as- sistant to the Attorney General such power. (U. S. V. Rosenthal, 121 Fed. Rep., 862.) [This is now authorized by act of June 30, 1906, noted under section 359, "Revised Statutes.] Relation of Attorney General to Con- gress. — The Attorney General is not authorized to give his official opinion upon a call of either House of Congress or any committee or Member thereof. (17 Op. Atty. Gen., 358. For other cases, see note to sec. 356, R. S.) 281 Sec. 355. Pt.2. REVISED STATUTES. Justice Department. See sections 177-182 Revised Statutes, as to officers authorized to act temporarily iu cases of death, resignation, absence, or sick- ness of heads of Departments, generally. The salary of the Solicitor-General has been increased to $10,000 per annum. Sec. 347. [Solicitor General.] There shall be in the Department of Justice an officer learned in the law, to assist the Attorney-General in the performance of his duties, called the Solicitor-General, who shall be appointed by the Presi- dent, by and with the advice and consent of the Senate, and shall be entitled to a salary of seven thousand five hundred dollars a year. In case of a vacancy in the office of Attorney-General, or of liis absence or disability, the Solicitor General shall have power to exercise all the duties of that office. — (22 June, 1870, c. 150, s. 2, V. 16, p. 162.) Where the Solicitor General signs a docuraent as "Acting Attorney General," the absence of the Attorney General will be presumed in support of the legality of the docu- ment so signed. (U. S. v. Twining, 132 Fed. Rep., 129. For other decisions, see notes to sees. 161 and 177, Revised Statutes.) Sec. 349. [Naval Solicitor, etc.] There shall be in tlie Department of Justice a Solicitor of the Treasury, an Assistant Solicitor of the Treasury, a Solicitor of Internal Revenue, a Naval Solicitor, and an Examiner of Claims for the Department of State, who shall be appointed by tlie President, by and with the advice and consent of the Senate, and shall be entitled to the following salaries: The Solicitor of the Treasury to four thousand dollars a year, the Assistant Solicitor of the Treasm^y to three thousand dollars a year, the Solicitor of Internal Revenue to five thousand dollars a year, the Naval Solicitor to three thousand five hundred dollars a year, and the Examiner of Claims for the Department of State fom- thousand dollars a year. — (22 June, 1870, c. 150, ss. 3, 9, 10, V. 16, pp. 162, 3. 29 May, 1830, c. 153, s. 1, v. 4, p. 414. 3 Mar., 1865, c. 76, s. 1, V. 13, p. 468. 23 July, 1866, c. 208, s. 5, v. 14, p. 207. 13 July, 1866, c. 184, s. 64, v. 14, p. 170. 23 July, 1866, c. 208, s. 5, v. 14, p. 207. 27 May, 1870, Res. 66, s. 1, v. 16, p. 378. 3 Mar., 1873, c. 226, s. 3, v. 17, p. 508.) So much of the above section as provided for the appointment of, and payment of a salary to, a "naval solicitor," was repealed and that office abolished by act June 19, 1878 (20 Stat., 205). The office of the Judge Advocate General of the Navy was established by act of June 8, 1880 (21 Stat., 164). And see act of May 22, 1908 (35 Stat., 218), noted under section 419, Revised Statutes, as to office of the solic- itor in the Navy Department. Other amendments to this section do not relate to the Navv, and are not noted. Sec. 354. [Opinions of Attorney General required by the President.] The Attorney General shall give his advice and opinion upon questions [of] law, whenever required by the President. — (24 Sept., 1789, c. 20, s. 35, v. 1, p. 92- 27 Feh., 1877, c. 69, v. 19, 'p. 241.) The President's right to call for an opinion from the Attorney General is not limited to questions of law. Article II, section 2, clause 1, of the Constitution, provides that he "may require the opinion of the principal officer of each of the executive departments upon any subject relating to the duties of their respective offices." (23 Op. Atty. Gen., 360. For other cases see note to section 356, Revised Statutes.) Sec. 355. [Title to, and jurisdiction over, land purchased by United States.] No public money shall be expended upon any site or land purchased by the United States for the purposes of erecting thereon any armory, arsenal, fort, fortification, navy-yaid, custom-house, light-house, or other public building, of an}" kind whatever, until the written opinion of the Attorney-General shall be had in favor of the validity of the title, nor imtil the consent of the legis- 282 Justice Department. Ft. 2. REVISED STATUTES. Sec. 855. lature of the State in which the land or site may be, to such purchase, has been given. The district attorneys of the United States, upon the appUcation of the Attorney-General, shall furnish any assistance or information in then- power in relation to the titles of the public property lying within their respec- tive districts. And the Secretaries of the Departments, upon the appUcation of the Attorney-General, shall procure any additional evidence of title which he may deem necessary, and which may not be in the possession of the officers of the Government, and the expense of procuring it shall be paid out of the appropriations made for the contingencies of the Departments respectively. — (11 Sept., 1841, Res. No. 6, v. 5, p. 468.) Art. R-117 (1) Navy Regulations, 1913, pro- vides that the solicitor in the Navy Depart- ment "shall be charged, under the special instructions of the Secretary of the Navy, with the searching of titles, purchase, sale, transfer, and other questions affecting lands and buildings pertaining to the Navy, and with the care and preservation of all muni- ments of title to land acqiiired for naval uses." By act of February 27, 1877, it was pro\'ided that "it shall be the duty of all officers of the United States having any of the title pa- pers (of property purchased, or about to be purchased, for the erection of pubUc build- ings) in their possession, to furnish them, forthwith, to the Attorney General. No public money shall be expended until the written opinion of the Attorney General shall be had." (19 Stat., 242. Thisactwas amendatory of sec. 1136, R. S., relating to the Army.) By act of March 2, 1889 (25 Stat., 941) it was pro- vided that "Hereafter all legal services con- nected with the procurement of titles to sites for public buildings, other than for life-saving stations and pierhead lights, shall be rendered by United States district attorneys: Provided further, That hereafter, in the procurement of sites for such public buildings, it shall be the duty of the Attor- ney General to require the grantors in each case to furnish free of all expense to the Government, all requisite abstracts, official certificates, and evidences of title that the Attorney General may deem necessary." By joint resolution, April 11, 1898, it was pro- vided that the requirements of this section shall not be applicable to cases in which a temporary fort or fortification may be con- structed upon the written consent of the owner of the land in an emergency in which, in the opinion of the President, the immediate erection of such temporary fort or fortification is deemed important and urgent. (30 Stat. 737.) By act of October 6, 1917 (40 Stat., 427), it was provided that this section "shall not apply to the expenditure of appropriations for the Ordnance Department of the Army now available for the purchase of land and for improvements upon such land." By act of March 30, 1900, the provisions of this section were "waived " in a case in which it was impracticable to apply to the State legislature for consent to the purchase until its next session, and the buildings were ur- gently required for the shelter of troops (31 Stat., 55.) Other statutes making exception to the pro- visions of this section in specific cases in- clude the following: July 2, 1917 (40 Stat., 241); October 6, 1917 (40 Stat., 353); March 1, 1918 (40 Stat., 439); March 28, 1918 (40 Stat., 460); April 11, 1918 (40 Stat., 519); May 6, 1918 (40 Stat., 552); July 8, 1918 (40 Stat., 818); July 9, 1918 (40 Stat., 860, 888); July 18, 1918 (40 Stat., 916). By act of June 20, 1878, it was provided that the provisions of this section and section 4661, Revised Statutes, should not apply to the erection of a sma,ll pierhead light. (20 Stat., 214 . ) Exception has also been made in the case of a hghthouse and fog signal. (See 2 Conip. Dec, 626.) The acquisition of land by condemnation for public use is provided for by act of August 1,1888 (25 Stat., 357). The President is authorized to procure assent of the legislature of any State in which lands have been purchased for the erection of forts, etc., without such consent having been obtained. (Sec. 1838, R. S.) ["Have been purchased" construed: 10 Op. Atty. Gen.34.] The President is authorized to obtain a release to the United States from any person to whom lands are conveyed for the use of the United States. (Sec. 3752, R. S.) The Constitution provides that Congress shall have power "to exercise exclusive legisla- tion in all cases whatsoever * * * over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." (Art. I, sec. 8, cl3,use 17.) The punishment of offenses committed on lands used for public purposes, the punishment of which is not provided for by any law of the United States, shall be the same as provided by laws of the State in which situ- ated. (Sec. 289, Criminal Code, act Mar. 4, 1909, 35 Stat., 1145; file 4143-04; 5103- 164 :4.) The punishment for cutting or injuring trees, breaking fences, etc., on lands of the United States reserved or purchased for pubUc use, is governed by Criminal Code, act of March 4, 1909, sections 49-58 (35 Stat., 1098, 1099). Private persons prohibited from asserting a right to the exclusive use and occupancy of pub- 54641°— 22- 19 283 Sec. 365. Pt. 2. REVISED STATUTES. Justice Department. lie lands; m-il proceedings to be instituted by United States in such cases; and Presi- dent authorized to employ civil or military force to remove and destroy any unlawful inclosureof said lands; etc. (Act Feb. 25, 1885, 23 Stat., 321.) No contract shall be made for the erection of any public building or for any improvement in excess of the amount specifically appropri- ated therefor. (Sec. 3733, R. S.; Cnminal Code, act Mar. 4, 1909, sec. 98, 35 Stat., 1106.) No land shall be purchased on account of the United States, except under a law author- izing such purchase. (Sec. 3736, R. S.) Authority to purchase a site and erect a public building thereon is not appropriation there- for. (Act Aug. 7, 1882, 22 Stat., 305.) I. Effect of Section. II. What Lands Included, III. Validity of Title. IV. Consent of Legislature. V. Jurisdiction of the United States. VI. Jurisdiction, Naval Reservations. VII. Miscellaneous. I. Effect of Section. It is clear this section was drafted with a view to the language of the Constitu- tion, Article I, section 8, clause 17, although section 355 says nothing about a cession of jmis- diction. (26 Op. Atty. Gen., 12.) This section demands that a transfer of juris- diction, in order to satisfy its requu'ements, must be coextensive with that contemplated by the Constitution. (20 Op. Atty. Gen., 611.) The prohibition seems to be against expenditures for improvements or struc- tures upon land purchased, that is, aheady acquired, by the Government until the con- sent is obtained, and not against the expendi- ture of money for the purchase of the land. Section 1838, Revised Statutes, appears to con- template, as something permissible under the existing law, that land may be purchased for the Government without the consent of the State thereto previously being given. (15 Op. Attv. Gen., 212.) The payment of the purchase money for land before the consent of the legislature of the State is given to the purchase is not for- bidden by the law embodied in this section; but it does prohibit the expenditure of public money upon the improvement of the land by the erection of needful buildings thereon until consent is given to the purchase. (10 Op. Atty. Gen., 34; 15 Op. Atty. Gen., 212; 3 Comp. Dec, 530; 17 Comp. Dec, 242; Op. Atty. Gen., Mar. 3, 1908, file 7101-6. Seebelow, "Validity of title.") The Government has tied its own hands if the State legislature for any or no assigned reason withholds its consent to a purchase of the site. It may purchase and hold the land, yet it can not spend a dollar of money upon the site for the erection of the necessary buildings thereon. (10 Op. Atty. Gen., 34.) The public money expended on such places, and the jiublic properly deposited in them, require that they shall be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend to be in any degree dependent on a particular mem- ber of it. (Fort Leavenworth R. R. Co. v. Lowe, 114 U. S., 525, quoting the Federalist.) It is at the option of every State to give or withhold its consent at its own pleasure. The United States has no power and ought not to have a desire to compel a State to cede ex- clusive jurisdiction over any part of its soil. (10 Op. Atty. Gen., 34.) Congress can not acquire or assert ex- clusive jimsdiction over any part of the terri- tory of a State without the consent of the State legislature. Hence before such jurisdiction can become vested in the United States the consent of the legislature of the State must be obtained, notwithstanding an enactment of Congress that upon purchase of real estate suitable and neces- sary for the purposes of the act the fee simple shall "be vested in the United States and its jurisdiction over said real estate shall be ex- clusive and the same as its jurisdiction over real estate purchased, ceded, or appropriated for the purposes of navv yards, forts, and arsenals." (13 Op. Atty.^Gen., 131. See In re Kelly, 71 Fed. Rep., 545; see also sec. 4882, R. S.) Where compensation has been paid for land without consent of the legislature of the State to its acquisition, the proper course to be pursued is for the head of the department to apply to such legislatiu'e for its consent. (13 Op. Atty. Gen., 131. See also sec. 1838, R. S.) II. "What Lands Included. This section includes lands located under navigable waters of the United States, to be used as a site for a Ughthouse for the es- tablishment of which provision is made by statute. Accordingly, it is not competent for the Lighthouse Board to erect a structure on such site until title thereto has been obtained by the Government. (16 Op. Atty. Gen., 369.) Lands acquired by condemnation. — This law refers only to lands to be purchased by the United Sta,tes, and does not apply to a case where the law contemplates -not only purchase but appropriation under the right of eminent domain. (13 Op. Atty. Gen., 131, 134; 23 Comp. Dec, 53, 56.) In common parlance "purchase" imports the buying of property by contract, and there- fore woul(i not include the case of acquisition by statute or by condemnation and expropria- tion. But the legal meaning of "purchase" applied to real estate goes much beyond this, for the phrase "title by purchase" is often em- ployed to embrace all the forms of acquisition except that by "descent." WTien accurately defined, the distinction is between titles ac- quired through some agreement or other act of the party acquiring, which is "purchase;" and titles acquired by the mere devolution of law without any act of the party, which is "de- 284 Justice Department. Pt.2. REVISED STATUTES. Sec. 365. scent." Undoubtedly title acc^iiired by the United States by expropriation is "purchase" within the scope of this section, such as, if done in strict accordance with the form of the statute, may be certified by the Attorney General as vesting a valid title in the United States. (7 Op. Atty. Gen., 114, 121.) Lands acquired by donation. — The word "purchased " does not include lands or interests in lands acquired by the United States without consideration or for a mere nominal sum; and such cases are not included within the terms of section 355. (28 Oji. Atty. Gen., 413. )_ Under the law now embodied in section 355, Kevised Statutes, before any money could law- fully be expended upon land donated to the United States it would be necessary to obtain a cession of jiuisdiction from the State. (13 Op. A.tty. Gen., 465.) The ceding of land by a State to the United States probably constitutes a "purchase" thereof by the United States in the broad sense of that word. (U. S. v. Tucker, 122 Fed. Rep., 518.) If the site were acquired by donation, section 355 would require the opinion of the Attorney General in favor of the validity of the title before any money could be expended thereon. (5 Comp. Dec, 682.) Where land is donated to the United States for the purpose of a site for a certain public building, for the construction of which an appro- priation has been made by Congress, the consent of the legislature of the State to the grant is required by section 355 before any part of the appropriation can be laArfully expended in the erection of the building. (16 Op. Atty. Gen., 414.) Land rented to the United States, to be used temporarily as a camp, is not a "place" within the terms of the Constitution, over which the United States have "sole and exclusive jurisdiction." (U. S. v. Tiemey, 28 Fed. Cas. No. 16517.) Neither section 355 nor section 1136, Revised Statutes, applies to the erection of public build- ings or other structures upon land leased to the United States. By their terms they are restrict- ed to the expenditure of public money upon or in connection with land purchased by the United States for the erection of such buildings or structures. (6 Comp. Dec, 877. See below, " Lands acquired in foreign country." The law embodied in this section con- templates purchases of lands for all pubHc purposes and establishes as a general rule applicable to them that no public money shall be expended in the purchase until the opinion of the Attorney General on the validity of the title shall be obtained and the consent of the legislature of the State in which the lands are situated is given. (13 Op. Atty. Gen., 131, 133; but see above, "Effect of section.") Locks and dams. — The cases seem to leave no doubt that the broadest construction has been wisely put upon the language of the Constitution, "for the erection of forts, maga- zines, arsenals, dockyards, and other needful buildings, "a construction which makes it cover all structures and all places necessary for carry- ing on the business of the National Government. Specifically held to include locks and dams. (U. S. V. Tucker, 122 Fed. Rep., 518; but see In re Kelly, 71 Fed. Rep., 545.) A lock and dam to be erected by the War Department, not a public building within the meaning of this section, and may be erected on land belonging to the United States although consent of the legislature to the purchase has not been given. (6 Comp. Dec, 843.) The erection of a monument from an appropriation under the War Department is not included in this section. Not necessary that title to the land should be conveyed to the United States. (6 Comp. Dec, 791.) [In this case the Attorney General had decided that a deed to such land "vests in the United States a valid title," but the Comptroller decided there was no authority to purchase the land and pay- ment therefor could not be made.] Wharf not public building. — The term "building" in its broadest sense includes any artificial structure erected on land, but it is not used in this broad sense in the statutes relating to pubUc buildings under the control of the Treasury Department (citing 6 Comp. Dec, 877). A wharf, however extensive or permanent in its nature, can not properly be regarded as a pubUc building within such statutes, which contemplate only such build- ings as are designed for occupation by Govern- ment officials or for use in affording shelter to and protection of movable pubhc property. (7 Comp. Dec, 533, distinguishing a contrary de- cision of the First Comptroller, May 22, 1894.) Land acquired for construction of irriga- tion works. — This section does not apply as to manner in which the validity of title to lands acquired by the Secretary of the Interior under the act June 17, 1902 (32 Stat., 388), shall be evidenced. Question of validity of title is one for the determination of the Secretary of the Interior, whose decision has the same force as would an opinion of the Attorney General under this section, and is conclusive on the accounting oQicers. (12 Comp. Dec, 691, citing letter of Acting Attorney General.) Land for use of militia. — The purchase of property for shooting galleries and target ranges in the several States and Territories and the District of Columbia is made upon the recom- mendation of the governors of the States or Territories or the commanding general of the District of Columbia, approved by the Secretary of War. The title to the property is convej^ed to and vested in the United States. Before payment for the same is made, the title must be approved by the Attorney General of the United States as required by this section, to whom all necessary papers to prove title shall be transmitted by the Secretary of War. The relation of the States and Territories, and Dis- trict of Columbia to such property is that of trustees, vested with the use and charged with the administration of it for the purpose for which it is acquired. (17 Comp. Dec, 242.) Lands acquired for cemeteries. — ^The purposes enumerated in the law now embodied in this section do not distinctly embrace national cemeteries. Question whether such cemeteries are included, not decided. (12 Op. Atty. Gen., 428.) Before jurisdiction over a national cemetery can become vested in the United States the 285 Sec. 355. Pt. 2. REVISED STATUTES. Justice Department. consent of tho lop^islatiiro of the State in which the cemetery is situated must be obtained. (13 Op. Atty. Gen., 131.) To authorize payment for land appropriated for the purpose of a national cemetery, the consent of the lepiislature of the State in which the land lies is not necessary; nor in such case is the opinion of the Attorney General as to the validity of the title required. (13 Op. Atty. Gen., 131.) If the consent of the legislature of a State in which a cemetery is situated can be obtained, it might well be held to be included under the terms of the constitutional provision vesting exclusive legislation in Congress. (13 Op. Atty. Gen., 131.) See section 4882, Revised Statutes, providing for exercise of exclusive jurisdiction by the United States over national cemeteries pur- chased with consent of the State. Temporary building.— It is the general policy of Congress that no public building shall be erected on ground not owned by the United States. But a small temporary building for the shelter of a light keeper is not a "public building" within the meaning of sections 355 and 1136, Revised Statutes. (6 Comp. Dec, 877.) Lands acquiredfor temporary purpose. — In practice the requirements of section 355 have not been regarded as applicable to reser- vations deemed to be temporary properties of the Government, temporarily used. (Lee v. Kaufman, 15 Fed. Cas., 191. See also U. S. v. World's Columbian Exposition, 56 Fed. Rep., 630.) Lands acquired in foreign country. — The word "State" as used in this section signifies a State of the Union and has no application to the erection of improvements to the naval hospital, Yokohama, Japan, upon land to which the United States purchases a lease in perpetuity, subject to an annual rental to the Japanese Government. (26 Op. Atty. Gen., 12.) This section does not apply to the purchase of lands with buildings thereon at Constantinople, Turkey, since no erection of a building is con- templated or provided for by the appropriation for such purchase. (26 Op. Atty. Gen., 380.) The provisions of this section are not applica- ble to the expenditures authorized by the act of March 3, 1903 (32 Stat., 1188), for the erec- tion of necessary improvements on lands at Guantanamo, Cuba, leased by the United States from the Republic of Cuba for the purposes of a naval station. (25 Op. Atty. Gen., 160.) III. Validity of Title. Attorney General must certify title before purchase. — The contract of a head of department to purchase land can not be carried out unless the Attorney General shall examine the title and certify to its validity. Property bargained for by the Government is always to be taken and paid for if the title shall be pronounced valid by the Attorney General and not otherwise. This law enters into and forms part of every such contract. (9 Op. Atty. Gen., 100.) Under this section it has been held that no money can be expended for the purchase of land until the Attorney General's opinion as to the validity of the title has been given (citing 10 Op. Atty. Gen., 353, 354); although it has been held that such purchase can be made ni>t\vithstanding the consent of the legis- lature thereto has not been given. (3 Comp. Dec, 531, citing 10 Op. Atty. Gen., 35; 15 Op. Atty. Gen., 212; 4 Lawrence's Comp. Dec, 152.) This section prohibits payment for land to be used for the purposes therein enumerated until the Attorney General shall have certified as to the validity of the title. It was also intended to make the opinion of the Attorney General conclusive upon that question. The Comptroller has not jurisdiction to pass upon question of payment until written opinion of Attorney General has been had in favor of the validity of the title. (3 Comp. Dec, 195.) See above, "I. Effect of Section." If title bad, purchase can not be com- pleted. — Where the Attorney General has officially refused to certify the title, the head of the department through which the negotia- tion is conducted ought at once to declare the contract rescinded; and when he does so, the end of that contract has come. It can have no more force afterwards than if it had never been made. (9 Op. Atty. Gen., 100.) Section 355, Revised Statutes, forbids the acquisition of real estate by the Government for any permanent military purpose until a perfect legal title and cession of State jurisdiction shall first have been obtained. (Lee v. Kaufman, 15 Fed. Cas., 191.) If title good, purchase must be com- pleted.— Where the head of a department under authority of an act of Congress made a contract for the purchase of land which stipu- lated for payment of the agreed price when the Attorney General approved the title and the conveyance was executed, held that, after the execution of the deed by the vendors and the Attorney General certified that a valid title to the land had been thereby vested in the United States, the head of the department had no power to make any new contract of purchase for the same or other property, and the vendors were entitled to receive the purchase money. (10 Op. Atty. Gen., 34.) Duty of the Attorney General. — This law does not require the Attorney General to in- quire into and report upon the fact or question, whether the State in which the land lies has consented to the purchase. That was supposed to be a patent fact which needed no examina- tion; yet it is obvious that difficulties may arise upon that point of fact, requiring a nice and hypercritical examination of the State's act of consent, which is often incumbered with conditions and reservations. (10 Op. Atty. Gen., 34.) The Attorney General, in certifying the title of land purchased by the Government, must look at the question as one of pure law, and can not relax the rule on account either of de- sirableness of the object or the smallnessof the value of the land. (6 Op. Atty. Gen., 432.) The validity of titleis a question of law. (12 Comp. Dec, 691.) When the Attorney General, in passing upon the validity of titles to property purchased by 286 Justice Depaxtment. Pt. 2. REVISED STATUTES. Sec. 360. the United States, certifies that the title will be good upon the release of certain mortgages, it is proper that the sufiiciency of the releases should be decided by him, and not by the Comptroller of the Treasury upon the question of payment for the land. (1 Comp. Dec, 348.) Where question is submitted to the Comptrol- ler of the Treasury as to legality of a proposed payment for certain buildings and outfit, but back of the question of expenditure of the money is that of the acquisition of the site, this involves questions of law unconnected with any expenditure of public moneys, and hence not within the comptroller's jurisdiction. There- fore suggested that the opinion of the Attorney General should be obtained upon the primary question involved in the acquisition of the site. (5 Comp. Dec, 682. But see 6 Comp. Dec, 791.) Regardless of whether this section be applicable or not, the validity of titles to lands proposed to be acquired should be sub- mitted to the Attorney General as a wise pre- caution, before erecting structures thereon. (28 Op. Atty. Gen., 413, 463.) Though the opinion of the Attorney General is not required in a particular case as to the validity of the title, as a prudential measure, for the security of the Government, it would seem to be highly expedient to obtain his opin- ion. (13 Op. Atty. Gen., 131. But see 12 Comp. Dec, 691.) Lands incumbered by outstanding liens. — There is nothing in this law that forbids the j)urchase of land incumbered by outstand- ing liens which have not yet matured; but in such case the department making the purchase should stipulate with the vendors that the amount of the purchase money necessary to pay off the incumbrances shall be withheld until they are due, when, if they are discharged by the vendors the purchase money so withheld shall be paid, or if not then discharged by the vendors, that the retained purchase money shall be applied by the Government to their payment. (10 Op. Atty. Gen., 353.) There is no law which prohibits the United States from purchasing property incumbered by liens. (12 Comp. Dec, 691, 697. See also 1 Comp. Dec, 348.) IV. Consent of Legislature. Consent of constitutional convention not sufBLcient. — An ordinance passed by the constitutional convention of a State, purporting to cede jurisdiction over land purchased by the United States, is not a consent to the purchase by the legislature of the State, within the sense of the Constitution and this section. Such a body is not "the legislature of the State." (12 Op. Atty. Gen., 428.) Consent to use of land not consent to purchase. — The provisions of this section are not satisfied by an act which contains neither an assent to the purchase nor a grant of juris- diction. It merely gives the consent of the State to the use of the land for a specific pur- pose, which consent is declared to be "as pro- vided in the 16th clause of the 8th section of the 1st article of the Constitution of the United States and in the acta of Congress in such case made and provided." I find nothing in that clause of the Constitution which is applicable to the subject, and am unable to determine what particular statute is referred to by the words "acts of Congress in such case made and provided." (13 Op. Atty. Gen., 460; compare file 14560-174, Apr. 19, 1916, with reference to statute of Illinois in which same error was made.) Consent not necessary before pur- chase. — There is nothing in the Constitution nor in this section which prohibits the United States purchasing land within a State without the consent of the State legislature; but when land is purchased by them in a State without such consent, the United States can not exer- cise "exclusive legislation" over the place. (10 Op. Atty. Gen., 34; 15 Op. Atty. Gen., 212; 3 Comp. Dec, 530. Compare Lee v. Kaufman, 15 Fed. Cas., 191.) The Comptroller of the Treasury will not render a decision as to the sufficiency of a general statute of a State consenting to pur- chases of lands by the United States when it appears that purchase of the particular land in question had not been authorized by Congress, as required by section 3736, Revised Statutes, (7 Comp. Dec, 524.) Consent necessary before improvements are made. — Under this section, no money can be expended upon the lands mentioned therein, for any purpose whatever, until consent of the legislature has been given. It is hardly to be presumed that Congress would authorize the expenditure of money for the preparation of a lot for the erection of a building and not for the erection of the building itself. (3 Comp. Dec, 530. See also 10 Op. Atty. Gen., 34; 15 Op. Atty. Gen., 212; 17 Comp. Dec, 242.) Consent sufficient although certain rights reserved. — In acts of the different State legislatures giving consent to the pur- chase of land by the United States, as well as in their acts expressly ceding jurisdiction over such lands, it is usual to reserve to the State the right to serve on the land purchased its civil and criminal process, and a reservation of juris- diction to that extent has always been regarded as consistent with the requirements of the pro- vision in section 355. (20 Op. Atty. Gen., 611; 23 Op. Atty Gen., 254; 24 Op. Atty. Gen., 617; Railroad Co. v. Lowe, 114 U. S., 525.) Where law of State contains a proviso that all civil and criminal process issued under author- ity of the State or any oflicer thereof may be executed on the lands so ceded, and within the fortifications which may be erected thereon, in the same way and manner as if such lands had not been ceded, such process must, of course, be for acts done within and cognizable by the State. It can not be inferred from such proviso that it was intended that the State should have a right to punish for acts done within the ceded lands. The whole apparent object is answered by considering the clause as meant to prevent these lands from becoming a sanctuary for fugi- tives from justice for acts done within the acknowledged jurisdiction of the State. This proviso leaves the sole and exclusive jurisdic- tion of the lands in question in the United States. (U. S. v. Cornell, 25 Fed. Cas. No. 14867, per Story, Circuit Justice; U. S. v. Meagher, 37 Fed. Rep., 875; U. S. v. Travere, 287 Sec. 355. Pt. 2. REVISED STATUTES. Justice Department. 28 Fed. Caa. No. 16537; U. S. v. Davis, 25 Fed. Cas. No. 14930, cited in Lasher v. State, 30 Tox. App., 387, 17 S. W., 1065; Sinker. Reese, 19 Ohio St., 318.) The reservation which has usually accom- panied the consent of the States, that civil and criminal process of the State courts may be served in the places purchased, is not considered as interfering in any respect with the supremacy of the United States over them; but is admitted to prevent them from becoming an asylum for fugitives from justice. (Fort Leavenworth R. R. Co. V. Lowe, 114 U. S., 525.) The e.xpression reserving to the State its jurisdiction, so far aa to have a right to execute all civil and criminal process lawfully issued under the authority of the State, means, aa mav not be incompatible with Federal juris- diction. (7 Op. Atty. Gen., 628, 632.) An act providing that "nothing herein con- tained shall be so construed as to prevent the ofRcers of this State from executing any process whatever within the jurisdiction hereby directed to be ceded to the United States," must be understood to embrace only such process as may lawfully run within such premises, notwithstanding and without derogation of or conflict with the jurisdiction acquired by the United States. (7 Op. Atty. Gen., 628, 635.) By legislative as well as judicial construction the right retained by States to serve civil and criminal process has been regarded as con- sistent with exclusive Federal jurisdiction. This is shown by act March 2, 1795 (1 Stat., 426), providing that "Where cessions have been or hereafter may be made by any State of juris- diction of places where lighthouses, beacons, buoys, or public piers have been erected and fixed or may by law be provided to be erected or fixed, with reservation that process, civil and criminal, issuing under the authority of such State may be executed and served therein, such cessions shall be deemed sufficient under the laws of the United States providing for the supporting or erecting of lighthouses, beacons, buoys, and public piers. * * * Where any State hath made or shall make a cession of jurisdiction for the purposes afore- said without reservation, all process, civil and criminal, issuing under the authority of such State or the United States may be served and executed within the places the jurisdiction of which has been so ceded, in the same manner as if no such cession had been made." (9 Op. Atty. Gen., 263.) Consent insufficient where reservations incompatible with Federal jurisdiction. — The settled construction of the Department of Justice is that the "consent" of the legisla- ture of a State to the purchase of lands therein by the United States, required by section 355, Revised Statutes, must be free from any condi- tions or reservations inconsistent with the exer- cise by Congress of ' 'exclusive legislation" there- over. (24 Op. Atty. Gen., 617.) It is manifest that a reservation to the State of the right to administer its criminal laws in the place purchased, is inconsistent with the exercise of "exclusive legislation" thereover by Congress, as it leaves to the State the cog- nizance of offenses against its laws committed thereon as fully as the same existed before such acquisition. (24 Op. Atty. Gen., 617.) A condition that, "if the purposes of this grant should cease, or there should be for five years consecutively a failure upon the part of the United States to use the said place for any of the purposes aforesaid, then the jurisdiction hereby granted shall cease and determine," is not objectionable. (7 Op. Atty. Gen., 628.) Where a State's consent to the purchase of land by the United States provides that the State 'shall forever retain concurrent jurisdic- tion over any such place to the extent that all legal and military process issued under the au- thority of the State may be executed any- where on such place or in any building thereon or any part thereof, and that any offense against the laws of the State committed on such place may be tried and punished by any competent court or magistrate of the State, it does not satisfy the provisions of section 355, Revised Statutes (20 Op. Atty. Gen., 611, quoting and following 8 Op. Atty. Gen., 419, holding that it is impossible to allow the courts of the State jurisdiction of crimes committed on such sites, to the exclusion of, or even in concurrence "with, the proper jurisdiction of the United States. But see file 7101-10, Apr. 17, 1908, authorizing expenditures of public moneys on improve- ments at naval proving ground, Indianhead, Md., although the State expressly retained jurisdiction _ to execute its criminal process therein against persons charged with offenses committed "Mdthin or without" the limits of said lands. See below, ' 'VI. Jurisdiction Naval Reservations.") As the State's consent "is coupled with an express retention of jurisdiction over offenses against its laws committed on the premises, this qualification of the consent is such as, in my opinion, renders it insufficient to satisfy that provision," viz, section 355, Revised Stat- utes. (20 Op. Atty. Gen., 611.) I should hesitate to advise the United States to accept a cession which in terms reserved the full concurrent jurisdiction of the State in order to guard against controversy as to whether the consent would be legally inoperative, or whether the condition and reservation would be void, or whether the jurisdiction would be deemed concurrent. (7 Op. Atty. Gen., 628.) Effect of consent coupled with incom- patible reservation. — It is not perfectly clear from the authorities what is the effect of such a reservation; tliat is, whether the consent expressed would be legally [in]operative, or the reservation alone void. (24 Op. Atty. Gen., 617.) If the legislative act of the State wherein the land lies amounts to a consent to the purchase of the property by the United States, any ex- ceptions, reservations, or qualifications con- tained in the act are void, because the consent being given by the legislature the Constitution vests in Congress exclusive legislation over the place, beyond the reach both of Congress and the legislature. If the act does not amount to a consent to the purchase, it is null. (10 Op. Atty. Gen., 34.) If the State had simply passed an act con- senting to the purchase, the constitutional 288 Justice Department. Pt. 2. REVISED STATUTES. Sec. 855. consequences would certainly have ensued and jurisdiction might have been assumed. As it is, however, the conclusion seems to me questionable. The declared retention of juris- diction is an express qualification of the assent, and such a qualification as causes it to fail to satisfy the act of Congress, if it does the Con- stitution. (8 Op. Atty. Gen., 102; see also 8 Op. Atty. Gen., 30.) There is a clear distinction between acts in which the reserv^aticn of jurisdiction is made an express condition of the consent, and an act which unequivocally expresses the consent of the legislature and does not make any objec- tionable reservation which may contain an absolute and inseparable condition of the consent. In the former case it has been de- cided that such consent does not satisfy the law (citings Op. Atty. Gen., 102; 8 Op. Atty. Gen., 418; 20 Op. Atty. Gen., 611). In the latter case, there seems to be no good reason for holding that the reservation invalidates the entire act. (24 Op. Atty. Gen., 617.) Where the consent of the legislature to the purchase or condemnation of lands within the State by the United States for public purposes is plainly and unequivocally given, and there is nothing whatever in any other part of the act to indicate that the reservation of jurisdiction which it contains is made an express condition of the consent, the act may be taken as satisfying the requirements of section 355, Revised Stat- utes, and no further cession of jurisdiction is legally required. (24 Op. Atty. Gen., 617.) It may well be doubted whether Congress is, by the terms of the Constitution, at liberty to purchase lands for forts, dockyards, etc., with the consent of the State legislature, where such consent is so qualified that it will not justify the exclusive legislation of Congress there. It may well be doubted if such consent be not utterly void. (Fort Leavenworth R. R. Co. v. Lowe, 114 U. S., 534, quoting U. S. v. Cornell, 2 Mason, 60, 25 Fed. Cas. No. 14867.) The Executive can not lawfully expend money on a site for public uses, purchased with assent of the State in wliich it lies, if such assent be coupled with express refusal of the State to cede jurisdiction to the United States. (8 Op. Atty. Gen., 102; seealsoSOp. Atty.Gen., (30; Op. Atty. Gen., Mar. 3, 1908, file 7101-6.) In order to guard against controversies, I should hesitate to advise the United States to accept a cession wliich in terms reserved the full concurrent jurisdiction of the State. (7 Op. Atty. Gen., 628.) In such cases, the Government would enter upon the land with explicit notice of contro- versy on the part of the State. Other States might follow the example, greatly to the in- convenience of the United States. (8 Op. Atty. Gen., 102; see also 8 Op. Atty. Gen., 30.) If any conflicting claims of jurisdiction should arise after the purchase between the two Governments, they would be judicial ques- tions. (10 Op. Atty. Gen., 34.) V. Jurisdiction of the United States. Where State consents to purchase. — When the United States acquire lands within the limits of a State by purchase, with the consent of the legislature of the State, for the erection of forts, magazines, arsenals, dock- yards, and other needful buildings, the Con- stitution confers upon them exclusive juris- diction of the tract so acquired. (Fort Leaven- worth R. R. Co. V. Lowe, 114 U. S., 525, 539; Chicago & Pacific Ry. Co. v. McGlinn, 114 U. S., 542; Benson v. U. S., 146 U. S., 325.) The purchase of land in a State by the General Goverument, with legislative consent, does not, ipso facto confer upon the General Govern- ment exclusive jurisdiction, unless the pur- chase is for a fort or for some other purpose distinctly named in Article I, section 8, of the Constitution. (In re Kelly, 71 Fed. Rep., 545.) Cession of jurisdiction by the State may take place in two ways; indirectly, by an act of the State legislature consenting to the purchase of the lancl by the United States; and directly, by an act of the State legislature granting the jurisdiction to the United States. (l3 Op. Atty. Gen., 460; V.^.v. Tucker, 122 Fed. Rep., 520.) It is thoroughly settled by numerous ad- judications that all such Federal jurisdiction as the Constitution contemplates is acquired by the United States in the mere consent of the State to the purchase; and that upon such con- sent the jurisdiction of the State ceases and that of Congress comes in, by virtue of the Constitu- tion. _ (7 Op. Atty. Gen., 628.) This law does not require the cession of juris- diction, exclusive or otherwise. When the legislature consents to the purchase, the Con- stitution provides for exercising exclusive legislation, which is full jurisdiction, over all places so purchased for the erection of dock- yards, etc. (9 Op. Atty. Gen., 129.) " 'Exclusive legislation' signifies exclusive jurisdiction." (6 Op. Atty. Gen., 578.) Section 355 proliibits the expenditure of money only upon any site or land purchased by the United States until the written opinion of the Attorney General shall be had in favor of the validity of the title and until the consent of the legislature of the State in which the land or site may be to such purchase has been given. It does not limit the expenditure of money to cession of jurisdiction. (Op. Atty. Gen., Mar. 3, 1908, file 7101-6.) The purchase of lands by the United States for public purposes within the territorial limits of a State does not of itself oust the jurisdiction of sovereignty of such State over lands so pur- chased . But when a purchase of lands for any of the Constitutional purposes is made by the National Government, and the State le.gislature has given its consent to the purchase, the land so purchased by the very terms of the Constitu- tion, ipso facto falls within the exclusive legis- lation of Congress, and the State jurisdiction is completely ousted. Exclusive jurisdiction is the necessary attendant upon exclusive leg- islation. (U. S. V. Cornell, 25 Fed. Cas. No. 14867, per Storj', Circuit Justice.) Where the State consents to the purchase, with reservation of power to serve civil and criminal process, and the United States accepts such condition, it follows that the officers of the State, in executing such process, act under the authority of the United States. No offenses 289 Sec. 366. Pt.2. REVISED STATUTES. Justice Department. committed within the territory eo purchased are committed iijiainft the laws of the State, nor can such offenses be punishable by the courta of the State unless the Congress of the United States should give said courts jurisdiction thereof. (Commonwealth v. Clary, 8 Mass., 72; U. S. r.Travers, 28 Fed. Cas. No. 16537; file 67G0-21, July in, 1911.) Where jurisdiction expressly ceded. — The law from which section 355 is taken re- quired "the consent of the legislature" and provaded in another section that application should be made to the State for "a cession of jurisdiction." Thus it appears that Congress understood "consent to the purchase" and "cession of jurisdiction" as concurrent, if not identical facts, and rightfully. (7 Op. Atty. Gen., 628.) It has become usual in the action of the legis- latures of the States in these cases not to stop at consent to the purchase, but to add cession of jurisdiction in express terms, but most fre- quently with reservation of certain concurrent jurisdiction to the State. (7 Op. Atty. Gen., 628; 9 Op. Atty. Gen., 129.) The effect of all such actions is to confer on the United States the whole jurisdiction of the Constitution — that is, rights of Federal legisla- tion coextensive with the subject matter. (7 Op. Atty. Gen., 628; U. S. v. Carter, 84 Fed. Rep., 622; In re Ladd, 74 Fed. Rep., 31; West- ern Union Tel. Co. v. Chiles, 214 U. S., 274; U. S. V. Tucker, 122 Fed. Rep., 518, citing Palmer v. Barrett, 162 U. S., 402; Sharon v. Hill, 24 Fed. Rep., 729; Martin v. House, 39 Fed. Rep., 694; Bannon v. Burnes, 39 Fed. Rep., 899; State v. Mack, 23 Nev., 359, 47 Pac, 763; Foley v. Shriver, 81 Va., 572.) _ Of course the property of the United States in such places is not subject to the jurisdiction of the State. Civil acts done there will be of Federal resort; and crimes committed there must be justiciable by the courts of the United States. On the other hand, such ceded lands within a State are not to be made places of refuge from its civil or criminal jurisdiction or of escape from civil obligations due to any of its inhabitants. (7 Op. Atty. Gen., 628.) It is competent for the State in relinquishing its sovereignty and ceding it to the United States to reserve the right to serve civil and criminal process; but where such a reservation was not made the United States has exclusive jurisdiction over the reservation, and the sheriff of the county within which it is situated has no power to serve thereon any process whatsoever issued by a court of that State, for it is an ele- mentary principle of law that a judicial officer can not serve process beyond his jurisdiction. (23 Op. Atty. Gen., 254.) Where neither consent nor cession of jurisdiction. — Where lands are acquii-ed in any other way by the United States within the limits of a State than by purchase with its con- sent [and jurisdiction is not ceded by the State], they will hold the lands subject to this qualifi- cation: That if upon them forts, arsenals, or other public buildings are erected for the use of the General Government, such buildings, with their appurtenances, as instrimientalities for the execution of its powers, will be free from any such interference and jurisdiction of the State as would destroy or impair their effective use for the purjioses designed. Such is the law with reference to all instrumentalities created by the General Government. Their exemption from State control is essential to the indepen- dence and sovereign authority of the United States wdthin the sphere of their delegated powers; but when not used as such instru- mentalities the legislative power of the State over the places acquired will be as full and com- plete as over any other places within her limits. (Fort Lea venwoVthR. R. Co. v. Lowe, 114 U. S., 525, 539; Chicago & Pacific Ry. Co. v. McGlinn, 114 U. S., 542; Benson v. U. S., 146 U. S., 325; U. S. V. Tiernev, 28 Fed. Cas. No. 16517; U. S. V. Tucker, 122 Fed. Rep., 518.) WTiere the State has neither consented to the purchase nor ceded jurisdiction to the United States, the State retains complete and ex- clusive political jurisdiction over such land, and there can be no question that persons there committing crime are subject to trial and pun- ishment by the State and not by the United States. (U. S. v. San Francisco Bridge Co.. 88 Fed. Rep., 891, 894; U. S. v. Penn, 48 Fed. Rep., 669; In re O'Connor, 37 Wis., 384.) Mere o^vnership and occupancy by the United States of land within a State do not suffice to oust the jurisdiction of the State, even when such occupancy is with the full knowledge and tacit consent of such State, and even though the title of the United States antedates the existence of the State (7 Op. Atty. Gen., 573); where no reservation was made by Congress, either in an act giving existence to a new Terri- tory, or in the act admitting the Territory as a State. (Gary v. State, 4 Kans., 49; U. S. v. Stahl. 27 Fed. Cas. No. 16373.) Status of residents. — Persons residing in places so ceded are in many respects exterri- torialized, so as not to be subject to personal taxation by the State, not to acquire a pauper settlement therein, not to be entitled to the benefit of its public schools, nor to the enjoy- ment of its elective franchise. (7 Op. Atty. Gen., 628.) When Congress possesses exclusive legislative power over a naval reservation, the laws of the State can not be allowed any operation or effect within the limits thereof. (Western Union Tel. Co. V. Chiles, 214 U. S., 274— suit to recover penalty provided by laws of Virginia for non- receipt of a telegram.) WTiere the general consent of the State is given to the purchase and where there is no other condition or reservation in the act grant- ing such consent but that of a concurrent juris- diction of the State for the serving of civil process and criminal process against persons charged with crimes committed out of such territory, the Government of the United States has the sole and exclusive jurisdiction over such territory for all purposes of legislation and jurisprudence with the single exception ex- pressed, and consequently no persons are amenable to the laws of the State for crimes and offenses committed within said territory, and persons residing within the same do not acquire the civil and political pri^dIeges nor do they become subject to the ci^dl duties and obliga- tions of inhabitants of the towns within which such territory is situated. (Fort Leavenworth 290 Justice Depaxtment. Ft. 2. REVISED STATUTES. Sec. 355. R. R. Co. r. Lowe, 114 U. S., 536, citing 1 Met., 580.) Persons in the employment of the United States actually residing in the limits of the armory at Harpers Ferry do not possess the civil and political rights, nor are they subject to taxation and other obligations of citizens of the State of Virginia. The privilege of not paying taxes in such a case is a personal one of the party claiming it and not, like the exemp- tion of property of the United States from taxation, a right of the Government as such which it would be the duty of the Government to maintain. (6 Op. Atty. Gen., 577.) A State may cede to the United States ex- clusive jurisdiction over a tract of land within its limits and may prescribe conditions to the cession if they are not inconsistent with the effective use of the property for the purposes intended . If a State thus ceding to the United States exclusive jurisdiction over a tract within its limits reserves to itself the right to tax private property therein, and the United States do not dissent, their acceptance of the grant vnth. the reservation will be implied. (Fort Leaven- worth R. R. Co. V. Lowe, 114 U. S., 525.) WTiere an act of Ohio ceding to the United States its jurisdiction over lands within that State for the purposes of a National Asylum for Disabled Volunteer Soldiers, pro\'ided that nothing in said act should be construed to pre- vent the officers, employees, and inmates of the asylum who were qualified voters of the State from exercising the right of suffrage at all township, county, and State elections in the township in which the national asylum should be located, it was held that, upon the pm'chase of the territory by the United States with the consent of the legislature of the State, the General Government became invested with exclusive jurisdiction over it and its ap- purtenances in all cases whatsoever; and that the inmates of such asylum resident within the territory, being within such exclusive juris- diction, were not residents of the State so as to entitle them to vote within the meaning of the State constitution, which conferred the elec- tive franchise upon its residents alone. (Sinks V. Reese, 19 Ohio St., 306; Ft. Leavenworth R. R. Co. V. Lowe, 114 U. S., 536.) [The case of Sinks t'. Reese was disapproved in In re O'Con- nor, 37 Wis., 379, which latter case was in effect reaffirmed in Clarke v. Milwaukee Co., 53 Wis., 65, 9 N. W., 782. The O'Connor case held that act of State legislature purporting to cede jurisdiction to the United States was void, as it is not competent for the legislature to ab- dicate its jurisdiction over its territory except where the lands are purchased by the United States for the specific pm-poses contemplated by the Constitution. The cases were reviewed in In re Kelly, 71 Fed. Rep.. 545, concerning jurisdiction of Northwestern Branch National Home for Disabled Volunteer Soldiers.] Right of Secretary to grant revocable license for use of Government land. — The Secretary' of War has authority to grant a re- vocable license to a railway company to lay a single track on a Government reserv^ation. Long-continued exercise of a power of this kind, and the open and notorious use of Gov- ernment reservations bv such licensees with- out legislative objection from Congress and without the adoption of any legislative rule upon the subject, impUes the tacit assent of Congress to this custom. At the same time this custom can not be maintained upon any ground except benefit to the public interests, either directly or indirectly. It can not be used as a basis for granting, under the guise of a temporary license, a substantially permanent right to maintain a raUroad. (22 Op. Atty. Gen., 245; see also 21 Op. Atty. Gen., 537, 565; 22 01). Atty. Gen., 544.) While the opinions cited were confined to the question of granting a license to a private per- son for the use of Government reser\-ations, yet the same principles apply wherever the proposal is to permit the use of the property of the United States Government by persons or agencies other than its own departments. Specifically, held applicable to use of naval reservations by government of Porto Rico. (29 Op. Atty. Gen., 205.) Power of Congress to limit or surrender its jurisdiction. — In numerous cases, espe- cially in acts authorizing the acquisition of sites for public buildings. Congress has latterly required from the States a cession of jurisdic- tion for all purposes excepting "the adminis- tration of the criminal laws of the State and the service of civil process therein." (See 21 Stat., 142; 22 Stat., 94, 152, 161; 23 Stat., 282; 24Stat., 544; 25 Stat., 444; 26 Stat., 724.) "In these cases, by force of the exception, there is left to the State the administration of its criminal laws over the premises acquii'ed by the General Government, and consequently the cognizance of offenses against its laws committed thereon, as fully as the same existed before such acqui- sition." (20 Op. Atty. Gen., 611.) WTiere the State assents to the purchase, no offenses committed within the territory so pur- chased can be punishable by the courts of the State "unless the Congress of the United States shall give to said courts jurisdiction thereof." (Commonwealth v. Clary, 8 Mass., 72; file 6769-21, July 19, 1911.) In this connection, consult Fort Leaven- worth R. R. Co. V. Lowe, 114 U. S., 534, quot- ing U. S. V. Cornell, 25 Fed. Cas. No. 14867, to the effect that ' ' It may well be doubted whether Congress is, by the terms of the Constitution, at liberty to purchase lands for forts, dock- yards, etc., with the consent of the State legis- lature, where such consent is so qualified that it will not justify the exclusive legislation of Congress there." See also 10 Op. Atty. Gen., 34, holding that, if the act of the State legisla- ture amount to consent, any exceptions, reser- vations, or qualifications contained in the act are void, because the consent being given by the legislature, the Constitution vests in Con- gress exclusive legislation over the place be- yond the reach both of Congress and the legislature, and in In re Ladd, 74 Fed. Rep., 31, holding that jurisdiction having once been ceded by the State and accepted by the United States, it "could not be recaptured by the action of the State alone." By joint resolution, approved October 22, 1914, Congress ceded jurisdiction to the State of California over certain lands in the Presidio of San Francisco and Fort Mason Military Res- 291 Sec. 356. Pt. 2. REVISED STATUTES. Justice Department. ervations dnrinp thoir occupancy by the Panaina-Pacilic International Exposition Co., the United States having possessed exclusive jurisdiction over said reservations. (See also act Jan. 21. 1871 (16 Stat., 399), and in In re Kelly, 71 Fed. Rep., 545.) VI. Jurisdiction, Naval Reservations. Miscellaneous decisions. — U. S. v. Travers, 28 Fed. Cas. No. I(j537 (navy yard, Boston, Mass.); U. S. v. Carter, 84 Fed. Rep., 622 (naval vessel in Wallabout Bay, at Cob Dock, navy yard, New York); Western Union Tel. Co. v. Chiles, 214 U.S. ,274 (naval vessel at navy yard, Norfolk, Va.); U. S. v. Davis, 25 Fed. Cas. No. 14930 (marine hospital, Chelsea, Mass.); U. S. V. Dolan, 25 Fed. Cas. No. 14978, 5 Blatch., 284 (navy yard. New York); U. S. v. Bevans, 3 Wheat., 336 (naval vessel in Boston Harbor); 7 Op. Atty. Gen., 573 (na\'y yard, Pensacola, Fla.); file 5716-486 (Pensacola); file 6769-21 (navy yard, New York); file 6807 (navy yard. New York); file 6769-21 (naval proving ground, Indianhead, Md.); Op. Atty. Gen., Mar. 3, 1908, file 7101-6 (naval proving ground, Indian- head, Md.); file 7101-10, Apr. 17, 1908 (naval pro\'ing ground, Indianhead, Md.); file 26524- 57 (navy yard, Philadelphia, Pa.); files 14560- 174, Apr. 19, 1916, and 26250-331, Feb. 24, 1912, naval training station, Great Lakes, 111. Ex parte Tatem, 23 Fed. Cas. No. 13759 (naval vessel at navy yard, Norfolk, Va.); file 26283- 988:2 (navy yard. New York); General Order No. 121, September 17,1914 (general instructions relative to jurisdiction, civil and naval author- ities). As to naval reservations in State of Maryland and particularly Indianhead, see below "Right of coroners to hold inquests on reservations." Service of process on persons in naval or civil service. — The reservation of power to the State to serve civil or criminal process within the limits of a naval reservation em- powers the State or municipal authorities forci- bly to take possession of persons in the naval or civil service within such limits, whether on shore or on vessels permanently stationed at the yard, subject to the qualification that, in order that such service of process may not interfere with the operations of^the Federal Government, the person deputed to perform that duty should first obtain the permission of the commandant, and such permission should only be withheld upon the most forcible and cogent reasons of public necessity. (File6769-21, July 19, 1911.) The principle that no State has the right to interfere with the instrumentalities of the Federal Government has been recognized from the earliest davs of our Government. (File 6769-21, July 19, 1911, citing Raiboad Co. v. Lowe, 114 U. S., 525- Railway Co. v. McGlinn, 114 U. S., 542, 545; McCulIoch v. Maryland, 4 Wheat., 316; Osborn v. The Bank, 9 WTieat., 738; Dobbins v. Erie Co., 16 Pet., 435; see also file 26524-57, Feb. 12, 1914.) There is no act of Congress authorizing a call by a governor for the surrender of an officer of the Navy charged with having broken the peace of a State, nor any law authorizing an arrest by the executive with a view to a forcible surrender of him for the purposes of trial. However, advised that the accused be ordered by the Navy Department to smrender himself. (1 Op. Atty. Gen., 244.) The civil authorities are not empowered to ariest persons, either in the naval or the civil service of the United States, within the limits of a naA^ yard, whether on shore or on board vessels at the yard, even where jurisdiction has been retained by the State to serve process, without first ol)taining the permission of the commandant, to the end that such service of process shall not interfere with or obstruct the operations of the United States Government. (File 6769-21, July 19, 1911.) However, the application to the commanding officer ia not jurisdictional, the matter being one that does not go to the jurisdiction of the civil court issuing the process. Accordingly the want of an application to the commanding officer would be a mere informality which might make the warrant of arrest irregular but would not make it void or Liable to be attacked upon a habeas corpus proceeding. (Attorney General to Sec- retary of the Navy, Nov. 14, 1914, file 7657- 261:1.) It is not intended that there should be any friction between the civil and naval authorities in this matter. Should a question arise at any time the commandant should inform the local authorities that the Navy Department has no desire to olsstruct the operation of State laws by preventing the punishment of persons in the Navy or of persons in the civil service for viola- tion of such laws; and that upon presentation of lawful process in proper hands the person wanted will invarialdy l>e delivered to the civil officer or such officer will be allowed to serve the process himself, whicheA^er course appears the more advisable, provided that the case is not one in which, l)y reason of any Federal interest involved, the United States should intervene. (File 6769-21, July 19, 1911.) Commanding officers of vessels and shore stations of the Navy or Marine Corps must com- municate with the Secretary of the Navy and await his instructions before delivering to civil authorities, State or Federal, any person in their custody or under their control. (G. O. No. 121, Sept. 17, 1914.) Before delivering any such person to State authorities for trial assurance must be obtained from the State authorities that the person so delivered will l:ie returned to the naval author- ities at the place of his delivery without ex- pense to the United States, if the naval author- ities shall desire his return. (G. O. No. 121, Sept. 17, 1914.) The preceding paragraph applies even though the State authorities have expressly retained jurisdiction to serve civil or criminal process. (G. O. No. 121, Sept. 17, 1914.) Otherwise there would be an interference with instrumentali- ties of the Federal Government, no appropria- tion 1)eing available for the return of men to naval jurisdiction under such circumstances. (File 26524-57, Feb. 12, 1914.) Even where land is purchased for use as a military post without the consent of the legis- lature, neither the State nor any county of the State would have the right to interfere with any instrumentalities necessary to the proper use of such lands as a military post, and to 292 Justice Depaortment. Pt. 2. REVISED STATUTES. Sec. 356. V render that use effective and complete. (Pundt V. Pendleton, 167 Fed. Rep., 1001.) Requisition must be made by the governor, addressed to the Secretary of the Na\'y and complying with the rules governing interstate extradition of criminals in civil life,_in all cases in which the person whose delivery is desired is in the naval service and is not serving at a navy yard or other place within the territorial limits of the State making tlie request. (G. O. No. 121, Sept. 17, 1914; 2 Op. Atty. Gen., 10.) Before delivering to the civil authorities of a State any person in the naval service, "the convenience of the public service requires that we should know at what time his trial will come on." The man may be indicted in his absence, and if this is done the governor will be able to inform the Navy Department at what time the trial will take place. (See 1 Op. Atty. Gen., 244; see also file 26524-126, May 17, 1915.) A naval prisoner will not be delivered to the civil authorities, Federal or State, for trial until his case has lieen finally disposed of Ijy the naval authorities except in certain cases where his surrender is desired upon a serious charge, such as felonious homicide. (G. O. No. 121, Sept. 17,- 1914.) The expression "naval prisoner" includes any person serving sentence of court-martial, or in custody awaiting trial by court-martial, or disposition of charges against him. (G. O. No. 121, Sept. 17, 1914. As to definition of "cus- tody" see Wales v. Whitney, 114 U. S., 564.) Service of subpoenas by the civil authorities on persons in the naval service, afloat or ashore, will not be allowed until the permission of the commanding officer has fiist been obtained. (G. O. No. 121, Sept. 17, 1914.) '\\Tiere an enlisted man was charged with a crime against a civilian, alleged to have been committed on a vessel of the Atlantic Reserve Fleet at the navy yard, Philadelphia, the department declined to deliver him to the civil authorities of Pennsylvania on the ground that the latter were without jurisdiction. (File 26524-127, Mar. 23, 1915.) Right of coroners to hold inquests on reservations. — In places over which Congress has exclusive power of legislation, it may un- doubtedly exclude coroners and all other State ofiicers from exercising their functions upon such premises; but where Congress not having exercised this right, a coroner enters the reser- vation to investigate an accident, and no government official attempts to keep him out, and the Federal Government does not complain of an invasion of its exclusive jurisdiction: Held, that the coroner's presence and proceed- ings were attended with the implied if not the express sanction of both governments and were demanded by the exigencies of the occasion; and that he was entitled to recover his usual fees from the county for holding such inquest. (County of Allegheny v. McClung, 53 Pa. St., 482.) A coroner is not authorized to hold inquests on the bodies of persons dying at a place within the exclusive jurisdiction of the United States; but he may be permitted to enter such place to hold inquests on the bodies of unknown persons found washed upon its shores or floating in the neighboring waters (McClure's Dig., 1901, par. 689) ; or upon the bodies of persons dying as a result of criminal acts committed upon them outside the reservation (Armv Dig., 1912, p. 270). If a death occurs upon lands over which the United States has exclusive jurisdiction, and such death was not caused by any act within the acknowledged jurisdiction of the State within whose boundaries such land is situated, then a coroner could have no jurisdiction in the matter and could not, under the reserved right of the State to serve process upon such lands, come upon them and hold an inquest. Further- more, such a proceeding would be of no use as a step in the criminal procedure of the State, because the State would have no jurisdiction to trv the offender. (File 6769-21, July 19, 1911; see also file 26283-988:2, Jan. 18, 27, 1916.) But if the body of a drowned person were found in waters within the limits of a nav) yard, and no drowning had occurred at the yard, it would be proper to allow the coroner to hole an inquest. (File 6769-21, July 19, 1911.) Where a person in the naval service who has been injured outside the navy yard, returns thereto and dies from the injury, the coroner if he should so desire should be permitted to hold an inquest, because the injury was inflicted or occurred while the deceased was within the jurisdiction of the State. (File 6769-21, July 19, 1911.) In proper cases, and when thought advisable, but as not establishing a precedent or as ac- knowledging any jurisdiction of the State to do so, a coroner might be allowed, as a matter of courtesy, to come into a navy yard to hold an inquest; but before permitting such action, the commanding officer or commandant should feel convinced that such a course would be ad- visable or accomplish some desirable end. (File 6769-21, July 19, 1911.) A coroner has the right to hold an inquest in case of accident resulting in death, occurring within the limits of a naval reservation where concurrent jurisdiction exists. (File 3727-97.) In the case of an enlisted man of the Navy killed on board a battleship at the navy yard, Philadelphia, the coroner attempted to hold an inquest outside the yard and applied for delivery of the enlisted man charged with the homicide and against whom court-martial pro- ceedings had been commenced. On advice of the Department of Justice this application was denied. (File 6674-29, Apr., 1907.) By laws of Maryland (act Apr. 8, 1902, amended Mar. 30, 1908) the State retained concurrent jurisdiction with the United States so far as that "* * * such criminal or other process as shall issue under the authority of the State of Maryland against any person or persons charged with crimes or misdemeanors com- mitted within or without the limits of the said lands may be executed therein, in the same manner as if no jurisdiction had been hereby ceded." It appears extremely doubtful whether the right of the State to serve criininal process in the case of an offense committed within Government land would be of much avail, since the courts of Maryland would 293 Sec. 355. Pt. 2. REVISED STATUTES. Justice Department, certainly have no jurisdiction to try a person for a crime committed within the limits of the naval proving pround at Indianhead or on any otlier naval reservation in that State. Never- theless, the law gives the State the right to serve its criminal process thereon, and such right should be respected. An offender under such circumstances, when called upon to plead to the indictment in a State court, might inter- pose a plea to the jurisdiction of such court, and it is believed that such plea would be sustained. It would seem further that a coroner should be allowed to hold his inquest if he so desires within the limits of any naval reservation in the State of Maryland; but that the result would be as stated, if it should be found that any crime had been committed on the reservation. (File 67G9-21, July 19, 1911.) Indianhead. — The land purchased for the naval proving grourid was acquired at three different times, to wit: May, 1890, September, 1891, and August, 1901. In 1900 there was an act passed by the General Assembly of Maryland giving consent to the purchase, generally, by the United States of lands for the purpose of forts, magazines, arsenals, coast defenses, etc., and the erection of barracks, garrisons, and other needful buildings. Before 1900 there was no law authorizing the purchase of land in Mary- land except for special purposes (lighthouse stations, buoys, etc.), and the acquisition of lands under certain circumstances by condem- nation. The act of 1900 must be taken as operating prospectively only, and therefore does not cover the purchases of 1890 and 1891. The land acquired in 1901 would come within the act of 1900 gi\"ing consent to the purchase. There was also an act passed April 5, 1906, ceding jurisdiction to the United States over lands acquired in Maryland, which act appar- ently had reference to lands to be acquired after its passage, and did not operate retro- actively. The act April 8, 1902, had relation to lands which had been theretofore or were afterwards to be acquired, but expressly ex- cepted from its operation Charles County, in which Indianhead is located. (Op. Atty. Gen., Mar. 3, 1908, file 7101-6.) This excep- tion as to Charles County was repealed by act Mar. 30, 1908. See file 7101-10, Apr. 17, 1908, and 7101-9.) In an opinion rendered by the Attorney General of the State of Maryland, February 7, 1916, it was held that the United States un- questionably have exclusive jurisdiction over the Naval Proving Ground, Indianhead, except for the right of the State to execute process upon the reservation for offenses committed outside, but the State has no right to punish offenses committed on the reservation. (See file 6692-233:7.) VII. Miscellaneous. TJse of appropriations. — When in an act appropriating for the purchase of additional land for a public building the piece of ground to be purchased is particularly described, the appropriation can not be used for the purchase of another tract equally suitable for the purpose and at a price within the sum provided, although the piece named in the act can not be secured within the amount appropriated. (2 Comp. Dec, 77.) An appropriation for construction of a dam impliedly autlujrizes the purchase of necessarv land. (15 Op. Atty. Gen., 212. See also 22 Op. Atty. Gen., 665.) An appropriation under the War Department for erection of a monument is not authority for purchase of land. (6 Comp. Dec, 791; see also 7 Comp. Dec, 524.) The expense of procuring an abstract of title to land to be used as a site for a fortifica- tion is a proper charge against the appropriation made for the purchase of the site, if the abstract is needed by the United States attorney to assist him in examining the title, provided the land is to be purchased and not condemned. (3 Comp. Dec, 216; compare 23 Comp, Dec, 53.) Payment for the services of a special assistant United States attorney in examining titles to land can not be made from the appropriation available for the work in connection with which the land was needed, the appropriation under the Department of Justice for pay of such assist- ants being exclusive. (1 Comp. Dec, 317; com- pare 9 Comp. Dec, 793.) Where an abstract of title is furnished as a preliminary to the purchase of the land, the expense is properly chargeable to the appropria- tion provided to pay for the land, the expense being regarded as part of the cost of the prop- erty. (Citing 3 Comp. Dec, 216, 217.) But the expense of procuring an abstract of title to land already acquired by the United States is payable from the appropriation for contingen- cies of the department procuring the abstract and not against an appropriation made specific- ally for improvements on the land. (4 Comp. Dec, 62.) Bjr act of March 2, 1889 (25 Stat. 941), it was provided that in the procurement of sites for public buildings the grantors must furnish, free of charge, all requisite abstracts, official certifi- cates, and evidences of title. Referring to this law the Comptroller said: "The exact public buildings to which it refers is not entirely free from doubt, but I am clearly of the opinion that it has no relation whatever to sites for fortifica- tions under the War Department." (3 Comp. Dec, 218.) By necessary implication the latter proviso of the act of March 2, 1889 (25 Stat., 941), pos- itively prohibits the payment for an abstract of title to land purchased by the United States as a site for any public building. If such an abstract could be procured and paid for prior to the agreement for the purchase of the site, the purpose of this provision would be entirely defeated. The provision must therefore be con- strued as prohibiting payment for an abstract procured prior to, as well as for one procured at the time of, the purchase. (7 Comp. Dec, 51.) Payment for abstract of title for land not pur- chased as a site for a public building may be made from the appropriation for purchase of the land and the making of the improvement thereby authorized. The act of March 2, 1889 (25 Stat., 941), does not apply to such case. (8 Comp. Dec, 212.) It is well settled that in the purchase of land on account of the United States the preliminary 294 Justice Depaxtraent. Pt. 2. REVISED STATUTES. Sec. 356. expenses of such purchase, as procuring ab- stracts of title, etc., and such other services as are not legal services, are payable from the appropriation for the purchase of the land ; but that the expense of any legal proceedings taken by the Department of Justice in connection therewith are payable from an appropriation of that department. (9 Comp. Dec, 793, citing 3 Comp. Dec, 216.) Section 355 has been modified by the pro- visions of the act of March 2, 1889 (25_Stat., 941). It has been held that this act prohibits the pay- ment by the Government of the expense of an abstract of title to land purchased by the United States as a site for a public building, and that this prohibition applies to an abstract pro- cured either prior to or at the time of the pur- chase of such land. (14 Comp. Dec, 579, citing 7 Comp. Dec, 51.) When a suit for condemnation is brought the expense of such suit, like all other suits in which the United States is a party, is payable from the appropriations made for the Depart- ment of Justice. (3 Comp. Dec, 216; see also 1 Comp. Dec, 317; 2 Comp. Dec, 201.) Transfer of public lands. — Lands reserved for militarj' purposes can not be restored to the public domain without an act of Congress; and it would also seem that they can not be trans- ferred to another department. (28 Op. Atty. Gen., 143; 21 Op. Atty. Gen., 120; file 984-3, Oct., 1905. See also note to sec. 161, R. S., "Custody of Property and Records.") The President has authority to transfer the use and control of lands in the Philippine Islands, reserved by Executive Order for naval purposes, to the ^^'a^ Department for military purposes. (28 Op. Atty. Gen., 262.) Any part or parts of the naval stations in Porto Rico no longer needed for the purposes of the Navy' Department may be transferred to the control of the \\'ar Department or of any other department, either by formal Executive Order or by arrangement between the Secretary of the Navy and the head of the other department. (29 Op. Atty. Gen., 205, citing 25 Op. Atty. Gen., 269; 28 Op. Atty. Gen., 262; 16 Op. Atty. Gen., 124.) Any part of the naval stations in Porto Rico may be transferred to the Government of Porto Rico under express authority contained in the act June 14, 1910 (36 Stat., 467), provided it is embraced witliin the terms of that act. While this transfer may be made by the Secretary of the Navj', it would be preferable to have the formal transfer effected by presidential procla- mation. (29 Op. Atty. Gen., 205.) As to those parts of the naval stations in Porto Rico \\'hich are not within the provisions of the act of 1910, there is no warrant of law for their formal transfer or cession to the Government of Porto Rico. Permission, however, may be given to the Insular Government through a letter or instrument in the nature of a revocable license for the use of these parts of the stations and the buildings thereon and for the construc- tion of improvements temporary in their nature. (29 Op. Atty. Gen., 205.) It would be difficult to lay down complete rules in regard to these reservations. They are made under such a variety of circumstances, for such various purposes, and under such different laws that each case is more conveniently con- sidered and discussed as it arises in connection with the facts relating to it. (16 Op! Atty. Gen., 124.) OF Sec. 356. [Opinions of Attorney-General required by heads of Departments.] The head of any Executive Department may require the opinion of the Attorney-General on any questions of law arising in the administration of his Department.— (22 Jime, 1870, c. 150, s. 6, v. 16, p. 163.) acta, in iserforming this legal duty, simply as the law adviser of the President and heads of departments. He is bound upon points of law and facts stated by them to give legal opinions in aid of their judgment in matters for their decision. (11 Op. Atty. Gen., 4.) When in the course of discharging the duties of their departments, a question of law shall arise, whose solution is a prerequisite to the dis- charge of those duties, the head of any depart- ment has a right to request the opinion of the Attorney General on such question of law and he is bound by his oath to answer it. (1 Op. Atty. Gen., 608, 611.) The Attorney General is not authorized or required to give an official opinion except to the President or to the head of an Executive Department, and the opinion must be needed for the guidance of the head of the department and should relate to some matter calling for action or decision on his part. (21 Op. Atty. Gen., 174; 20 Op. Atty. Gen., 609, 723.) An opinion of the Attorney General may be requested by two or more heads of departments jointly, and will be rendered to all who joined in the request. (See 29 Op. Atty. Gen., 303; 29 Op. Atty. Gen., 494.) I. Who May Request Opinion. II. Must be Question op Law. III. Must Arise in Administeation Department. IV. Form of Request. V. Weight of Opinions. VI. Jurisdiction, Attorney General and Comptroller of the Treasury. VII. Miscellaneous. I. Who May Request Opinion. President or head of department. — It has repeatedly been held that the Attorney General is not authorized to give his official opinion upon a question of law where it is not called for by the t'resident or by the head of a depart- ment. (14 Op. Atty. Gen., 21.) The Attorney General is not authorized to give an official opinion in any case except on the call of the President or some one of the heads of departments. (1 Op. Atty. Gen., 211.) By long and unbroken construction and prac- tice it has been settled that the Attorney General 296 Sec. 366. Pt. g. REVISED STATUTES. Justice Department. When a "difference of opinion" arises be- tween several executive departments as to the construction of the law, the primary question is as to which is vested with the determination and responsibility of the question. That one only can have jurisdiction over the subject- matter is plain. (20 Op, Atty. Gen., 178, 180.) As to opinions which may be required of the Attorney General by the President, see section 354, Revised Statutes. Subordinate officers of the Government who desue an oOicial opinion must seek it through the head of the department to which such subordinate is accountable. (1 Op. Atty. Gen., 211.) [Where an opinion was requested by a subordinate officer of a department, the Attorney General has replied to the head of the department. (20 Op. Atty. Gen., 220.) In another case the Attorney General addressed his opinion to a subordinate officer of a department, it appearing that he requested the opinion "By direction of the President." (27 Op. Atty. Gen., 150.) An opinion was rendered to the Secretary of the Navy in response to a request from the latter's aid. (28 Op. Atty. Gen., 531.)] For the guidance of the heads of bureaus and other officers of the departments in the dis- charge of their duties provision is made by sec- tion 361, Revised Statutes, for assistance from the officers of the Department of Justice, under the direction of the Attorney General. The At- torney General can not render an opinion in such cases, even though it be requested through the head of the department, where the matter is not one calling for action or decision of the latter. (21 Op. Atty. Gen., 174; 20 Op. Atty. Gen., 609, 723.) Question suggested but not decided whether law allows questions in the War and Navy Departments to be sent to the Attorney General by somebody else than the Secretary. (18 Op. Atty. Gen., 59. See sec. 357, R. S., and note.) It is true that the Attorneys General have given to heads of departments ad\'ice and opinion upon questions arising in the bureaus of their respective departments; but such advice and opinion are intended to aid only_ the judg- ment of the Secretary himself in deciding sucn questions. (11 Op. Atty. Gen., 4.) The Attorney General is not, in general, to give official opinions to subordinate officers of the Government. (6 Op. Atty. Gen., 326, 334.) An opinion of the Attorney General upon any question arising in the administration of the Treasury Department can only be had at the instance of the Secretary. (18 Op. Atty. Gen. 59.) Legislative Department. — In the absence of any statutory authority to give official opin- ions to the legislative department of the Gov- ernment, the assumption of such a power by the Attorney General would be in violation of his oath of office and of dangerous example. (10 Op. Atty. Gen., 164.) The Attorney General is not authorized to give his official opinion upon a call of either House of Congress or any committee or Member thereof. (17 Op. Atty. Gen., 358.) _ The Attorney General can not, without vio- lating his oath , render an opinion to the Speaker upon the order of the House of Representatives. (1 Op. Atty. Gen., 335.) The Attorney General is not authorized by law to give an official opinion to the House of Ile])resentatives in response to a resolution tliereof. (18 Op. Atty. Gen., 87; citing 2 Op. Atty. Gen., 499; 5 Op. Atty. Gen., 561; 10 Op. Atty, Gen., 164; 12 Op. Atty. Gen., 544; 12 Op. Atty. Gen., 546; 14 Op. Atty. Gen., 17; 14 Op. Atty. Gen., 177; 15 Op. Atty. Gen., 475.) It is not within the ])rovince of the Attorney General to advise committees of Congress upon questions of law occurring in matters before them. (14 Op. Atty. Gen., 17.) [The Attorney General rendered a lengthy opinion to the Senate Committee on Interstate Commerce, May 5, 1905, which is published with the following note: "This opinion, prop- erly speaking, is not an official one, but is to be regarded as a letter of adA'ice. It is printed with the official opinions solely because of the importance of the subject considered." (25 Op. Atty. Gen., 422.) The Attorney General has also rendered an opinion to the House of Representatives. (1 Op. Atty. Gen., 253.) Compare 30 Op. Atty. Gen., 88.] II. Must be Question op Law. In General. — The authority of the Attorney General to give opinions is limited by Congress to "questions of law," (20 Op. Atty. Gen., 590.) The Attorney General can not give official opinions except upon questions of law. (21 Op. Atty. Gen., 36.) Being thus limited to questions of law, the Attorney General has not been clothed with power to investigate matters of fact. He has no authority to compel the attendance of wit- nesses, or to administer oaths to them; and in short has none of the machinery by which, through the control of persons and papers, truth may be elicited and falsehood exposed. Tlius deficient in the means of ascertaining the facts, his conclusions u])on the law would nec- essarily be valueless, since their accuracy would depend on the fullness and certainty with which the facts were established. (10 Op. Atty. Gen., 164.) Can not decide questions of fact. — The Attorney General has no ])ower to investigate or decide questions of fact, but only to give advice on questions of law as they arise out of facts authoritatively laid before him by the head of a department. (JO Op. Atty. Gen., 267.) It is not the province of the Attorney General to settle a controversy involving matters of fact. He can only give his opinion on questions of law. _ (12 Op. Atty. Gen., 206.) It is not within the competency of the Attor- ney General to make a finding of facts in any case, but he can only give an opinion on ques- tions of law arising upon a statement of facta presented to him by the officer requesting an opinion. (19 Op. Atty. Gen., 696.) Tlie Attorney General only has jurisdiction of questions of law, and must be furnished with a definite statement of the facts. (21 Op. Atty, Gen. 36; see also 1 Op. Atty. Gen., 253.) As the Attorney General is not at liberty under the law to make a finding of facts, he will lay aside the evidence submitted for his con- sideration with request for an opinion, and take as the case for opinion the statement contained 296 Justice Department. Pt. 2. REVISED STATUTES. Sec. 366. in the communication from the head of the department. (19 Op. Atty. Gen., 547.) The Attorney General is not permitted by law to render an official opinion to the head of a department upon questions of fact. (21 Op. Atty. Gen., 174; citing 20 Op. Atty. Gen., 697, 711,717,740.) The Attorney General is under no obligation to render an award, or to determine a question of fact in cases referred to him. (6 Op. Atty. Gen., 326, 334.) The law is settled that the Attorney General can not properly decide questions of fact. Such questions must be determined by the head of the department in which they arise. (20 Op. Atty. Gen., 384.) The Attorney General, in discharging the duties imposed upon him by section 356, Re- vised Statutes, is required only to answer ques- tions of law and can not consider questions of fact upon evidence submitted. Where papers containing e\'idence accompany the request for tlie Attorney General's opinion, he will not ex- amine same, but will assume that all the facts have been found in favor of the applicant. (20 Op. Atty. Gen., 253.) The Attorney General has no authority to give an official opinion upon questions of fact submitted by the head of a department. (3 Op. Atty. Gen., 1.) It is obvious thpt when the Attorney General proceeds to give his opinion and ad^^.ce on any question of law the facts giving rise to such question must be either stated to or assumed by him; and when the head of the department calUng for his opimon gives him those facts, he must necessarily adopt them as the bases of his reflections and judgment. Whether they are presented in the form of a direct statement or of an argumentative examination of the circum- stances can make no difference. In either case it would be manifestly improper to receive from any other source statements or inferences con- flicting with those which are put before him by the only authority legally known to him in the premises. To act otherwise would involve a usurpation of power; for it would be convert- ing an office created for the sole purpose of assist- ing and advising the executive departments on questions of law into an appellate tribunal for the reexamination of their decisions on mat- ters of fact. (3 Op. Atty. Gen., 1.) The Attorney General has no authority to set- tle questions of fact. He is obliged to take the facts of a case as they are stated to him and to predicate his opinion thereon. (3 Op. Atty. Gen., 309.) It has been held from a very early date that an official opinion can be recjuired and given only when the question submitted is a question of law. (20 Op. Atty. Gen., 614.) The Attorney General can not undertake to settle conflicting questions of fact raised by various papers submitted, but \'iiil look to the submitted statement of facts alone. (22 Op. Atty. Gen., 156.) The Attorney General's duty is limited to questions of law arising in the administration of the respective departments. Where the sub- ject matter is not of that character, and conse- quently not within the scope of duty thus marked out, he is without authority to officially advise thereon. (18 Op. Atty. Gen., 365.) ^Vhat constitutes prompt delivery by a con- tractor is a question of fact, in regard to which the Attorney General is not required to express an opinion. (28 Op. Atty. Gen., 47.) The Attorney General declines to render an opinion upon a matter submitted which in- volves the determination of questions of fact (26 Op. Atty. Gen., 604.) The advisory powers of the Attorney General do not extend to an examination of e\idence to ascertain what is established by a preponder- ance of the testimony (citing 17 Op. Atty. Gen., 172); nor can he settle facts from papers sub- mitted, and then proceed to give an opinion thereon (citing 18 Op. Atty. Gen., 487; 19 Op. Atty. Gen., 672). (28 Op. Atty. Gen., 218.) The Attorney General will not enter into the consideration of disputed questions of evi- dence. (28 Op. Atty. Gen., 239.) The Attorney General will not undertake to find the facts involved in a request for an opinion. (28 Op. Atty. Gen., 393.) WTiere the record of a court-martial trial waa sent to the Attorney General by the President for a report, among other things, upon the ques- tion whether it contained any "unjustified con- clusion of fact " which would render it the duty of the President to withhold approval of the findings of the court-martial, or any part thereof, and generally to ad\ise the President as to the action he should take upon the record as trana- mitted to him from the court-martial; the At- torney General rendered an opinion upon the questions of fact thus presented, as well as upon the questions of law involved. (Case of Capt. Oberlin M. Carter, U. S. A., 22 Op. Atty. Gen., 589.) In general, the Attorney General will render an opinion to the Secretary of the Navy upon questions of law presented by the records of court-martial proceedings (28 Op. Atty. Gen., 286; 29 Op. Atty. Gen., 563; C. M. O. No. 4— 1913); but will not render an opinion to the Secretary of the Navy upon questions of fact connected the^e^vith nor review the proceedings of a court-martial in search of questions of law. (5 Op. Atty. Gen., 626.) Can not decide questions of expediency, administrative discretion, etc. — The advisa- bility of bringing a suit is not a question of law upon which the Attorney General's opinion may be asked. (20 Op. Atty. Gen., 702.) The Attorney General can not with propriety express any judgment concerning the disposi- tion of the matter to which his opinion relates, that being something wholly within the admin- istrative sphere and direction of the head of the department. The Attorney General's duty ends with the rendition of the opinion. (17 Op. Atty. Gen., 332.) The Attorney General's opinion iipon a purely administrative matter entirely within the dis- cretion of the head of a department must be con- sidered CAtra-official and as coming from one whose lack of practical knowledge of the admin- istration of the department makes his opiiuon on this point far inferior in value to that of the head of the department to whom it is addressed. (20 Op. Atty. Gen., 654, 658.) 297 Sec. 366. Pt. 2. REVISED STATUTES. Justice Department. The Attorney General is not authorized to give an oiiicialopinion upon a nuestion which proposes for his consideration nothing more than a subject of controversy between subordinates of a department and private parties. (18 Op. Atty. Gen., 365.} Inquiries involA-ing considerations of adminis- trative discretion and judgment, of practica- bility and advisability, must be solely deter- mined by the head of the department in his discretion. (24 Op. Atty. Gen., 118.) Where there is no doubt that terms are used in a statute in their ordinary acceptation, the duty of applying the statute to a particiilar state of facts IS one of administration merely, involving the determination of questions of fact, and the duty of applying the statute to the facts can not be devolved upon the Attorney General. (20 Op. Atty. Gen., 487.) The Attorney General can not, with propri- ety, give an otticial opinion to the head of a de- partment upon the qxiestion whether it is expe- dient for him to prosecute an appeal from the decision of a chief of bureau in another depart- ment to the latter's superior in the same de- partment. The question is not necessarily one of law, but may involve merely official discre- tion. Any questions of law which arise may be presented to the Attorney General by the head of the department in which the appeal is pend- ing. (15 Op. Atty. Gen., 574.) The Attorney General is not authorized to ex- press any views upon a matter of propriety lying within the executive jiidgment and discretion of the head of the department requesting the opinion. (25 Op. Atty. Gen., 93.) It is not within the pro^^nce of the Attorney General to constnie the reasons, affecting his administrative judgment and discretion, which might impel the head of a departrnent to take any action one way or the other in a matter pending before him for decision; he is neither empowered nor required to pass upon the pro- priety of the exercise by the head of a depart- ment of an official discretion. (25 Op. Atty. Gen., 524.) Whether charges proposed to be made by the Secretary of Agrictilt\ire for the use of lands or resources within the limits of the national-forest reserves would or would not be reasonable is a matter left by law entirely to the Secretary's discretion. The responsibility, as well as the power, rests with the Secretary. It is not, therefore, a question which can properly be de- termined by the Attorney General. (26 Op. Atty. Gen., 421.) An inquiry which raises a question of pro- priety and expediency, rather than a question of law, is one to be determined by the head of the department only, and upon which the At- torney General can not advise. [In this case, however, the Attorney General stated that he agreed with the officer requesting his opinion, that the action proposed was of very doubtful expediency.] (26 Op. Atty. Gen., 579.) The Attorney General declines to express an opinion to the Secretary of the Treasury as to the propriety of a proposed instruction to cxis- toms officials, as he is not authorized to express his ^'iews upon matters of propriety involving executive judgment and discretion. (25 Op. Atty. Gen., 94.) The advisory powers of the Attorney General do not extend to a question which would appear to turn wholly tipon a conclusion of fact as to the status of a'bidder, and to involve, therefore, the exercise of judgment and discretion by the head of the department, with which the Attor- ney General can not under the law or with pro- priety interfere. (28 Op. Atty. Gen., 218.) The Attorney General refrains from adAdsing as to the propriety of issuing a regulation. (25 Op. Atty. Gen., 93.) Can not construe executive regula- tions. — It is the province of the head of a department, rather than of the Attorney Gen- eral, to construe regulations issued by the for- mer. (21 Op. Atty. Gen., 36.) The Attorney General will not interpret a regulation of practice made by the Commis- sioner of Patents for his own guidance and that of his stibordinates for the convenient, intelli- gent, and orderly disposal of the business of hia office. Such regfulations, which the heads of bureaus and departments can make, modify, or annul at will, or enforce or waive, as seems ex- pedient, may well be left for their interpreta- tion to the head of the department or bureau to which they pertain. (18 Op. Atty. Gen., 521.) A regulation, when not specially authorized or demanded by law, is not law in the sense in which that term is tised in this section. _ It is simply a rule of administrative practice in the present instance with reference to the classifica- tion and order of precedence in the considera- tion of cases in the Patent Office. (18 Op. Atty. Gen., 521.) The construction of regulations of the Civil Service Commission is a matter entirely within the province of the commission, and should not be attempted by the Attorney General. Where the question presented is whether the regulation is one that was ■within the power of the commission to make, the Attorney General's answer will be, that if the regulation is con- stnied to mean thus and so, it is a lawful regu- lation; otherwise, it is unauthorized. (20 Op. Atty. Gen., 649.) The Attorney General can not give an official opinion upon the construction of customs regu- lations, which may be modified, at any time by the Secretary "of the Treasury. (21 Op. Atty. Gen., 255.) A departmental regulation _ which is not demanded by law is not law in the sense in which that term is used in section 356. It may more properly be left for interpretation by the head of the department or bureaii to which it pertains, and wliich is responsible for its existence and execution. As the basis of the regulation is to be found only in the will of its maker, to ad\-ise him what meaning his lan- guage conveys would be useless, since an inter- pretation unsuitable to him could only result m a revision. (25 Op. Atty. Gen., 183.) Will decide whether proposed or exist- ing regulation is legal. — ^The question as to the power of an executive officer to issue a rule or regulation or as to its legality, is distinguished from a question as to the proper interpretation of a regulation, wliich latter question the Attor- ney General will not answer. (18 Op. Atty. Gen., 521; 20 Op. Atty. Gen., 649.) 298 Justice Department. Pt. 2. REVISED STATUTES. Sec. 356. The Attorney General will examine regula- tions proposed to be issued by the Secretary of the Treasury for the information of residents of the United States returning from foreign coun- tries, and decide whether or not same are in harmony with the tariff act, and legal. (25 Op. Atty. Gen., 93.) Similarly, the Attorney General will render an opinion to the Secretary of the Navy as to the latter' s authority to make certain proposed changes in Navy Reflations. (29 Op. Atty. Gen., 264; also unpublished opinion, Oct. 27, 1909, file 3980-530.) The Attorney General will examine a pro- posed regulation of the State Department with reference to the compensation of consular agents, and decide that such regulation, "being consistent with the provisions of law, may be carried into effect." (22 Op. Atty. Gen., 163.) The Attorney General will not render an opinion as to whether or not certain proposed regulations may be adopted and put into effect by the head of a Department, unless it affirma- tively appear that such head of Department, as a matter of policy and administrative discre- tion, is prepared or intends to adopt such regu- lations or any modification thereof, provided such action would be legal on his part; as it is only then that a question of this character can be said to have so arisen in the administration of the department as to come witliin the terms of section 356, Revised Statutes. (27 Op. Atty. Gen., 49.) The Attorney General can not answer the question whether a regulation if issued could be enforced, as it is hypothetical as well as judicial. (25 Op. Atty. Gen., 93.) (However, m this case, in view of the special object of the proposed regulation, the Attorney General states that, while refraining from advising as to the propriety of issuing the regulation, or aa to its fate if it should come before the courts, "it does not seem to me, speaking from the present standpoint, that its general legality can be seriously questioned.") The validity of a Navy regulation, as applied to cases that might arise in the future, is hardly a proper subject for the Attorney General to pass upon. (28 Op. Atty. Gen., 129, citing 20Op. Atty. Gen., 738.) The law does not require the Attorney Gen- eral to undertake the task of examining codes of rules adopted to meet future cases. The establishment of such a practice would require his entire time, and necessitate the imagining of the various contingencies in which their validity might in future cases be questioned, and passing judgment on these possible future problems. (20 Op. Atty. Gen., 738.) The Attorney General will render an opinion as to whether or not an existing regulation is legal. (20 Op. Atty. Gen. 649; 30 Op. Atty. Gen., 234.) The Attorney General will determine that a Navy regulation is valid and "has binding force upon the accounting officers of the Gov- ernment." (Op. Atty. Gen., May 19, 1915, 171 S. and A. Memo., 8611.) Will not advise as to foreign law. — The existence of a foreign law is a question of fact to be proved by competent evidence. The Attorney General can not give an opinion as to the law of a foreign nation. Whether the statements of a foreign ambassador as to the true construction of the legislation of his own Governmentand the practice thereunder should be accepted as true is a question to be decided by the Secretary of State and not by the Attor- ney General. (21 Op. Atty. Gen., 377; 21 Op. Atty._ Gen., 80; file 26543-124, Aug. 4, 1914. In this connection, see 7 Op. Atty. Gen., 9.) Will not examine and approve blank forms. — The law does not require the Attor- ney General to examine and approve forms of obligations, permits, bonds, and affidavits for future use in the other departments. The establishment of such a practice would require his entire time and necessitate the imagining of the various contingencies in which their validity might in future be questioned and passing judgment on these possible future problems. (20 Op. Atty. Gen., 738. But see 27 Op. Atty. Gen., 173; and file 3355-88, Nov. 7, 1906.) Questions as to desirability of changing the law. — This section limits the functions of the Attorney General, in the matter of opinions requested by the heads of departments, to questions arising out of the law as it is, and does not seem to call upon him to give his views and opinions upon the advisability of making changes by treaty in any department of juris- prudence. (19 Op. Atty. Gen., 598.) [However, in 6 Opinions Attorney General, 432, the Attorney General expressed the view that " Congress may undoubtedly relax the law in this case," but that it seemed to him "pre- mature" to do so in the existing status of the matter. In 22 Opinions Attorney General, 512, he suggested " that relief be had through Con- gressional action;" in 24 Opinions Attorney General, 69, he stated, " I have the honor to say, responding to your alternative suggestion, that it may be well to propose to Congress legislation which shall explicitly authorize the issue of letters rogatory by the Patent Office of the United States, and shall clothe Federal courts with the power to execute letters issued by those patent offices of recognized powers which possess and exercise well defined judicial functions;" in 25 Opinions Attorney General, 98, he suggested " that Congressional action be sought to provide for the various features of expense, compensation to the Government or its officers, official liability for the faithful per- formance of the trust," etc.; on May 27, 1909, he submitted draft of a bill to the Secretary of the Navy, with suggestion that it be introduced in Congress for the purpose of curing defects in a law considered by him in an official opinion. File 22724-7i. See also 26 Op. Atty. Gen., 70, 74.] III. Must Arise in Administration op Department. Will not answ^er hypothetical question. — The Attorney General will not give a specula- tive opinion on an abstract question of law which does not arise in any case presented for the action of an executive department. (11 Op. Atty. Gen., 189; 20 Op. Atty. Gen., 288, 440; 28 Op. Atty Gen., 129, 239, 417; 29 Op. Atty. Gen., 99; 22 Op. Atty. Gen., 77; com- pare 28 O^. Atty. Gen., 34, 38.^ 54641°— 22- ■20 299 Sec. 356. Pt.t. REVISED STATUTES. Justice Department. It has been held from a very early day that an ollicial opinion can be required and given onlv when the question for decision is one which has already actually arisen, and not a question upon a hypothetical case which may or may not arise in the future. (20 Op. Atty. Gen., 614.) The opinion of the Attorney General may be required on questions of law arising in the administration of a department, but not \ipon hypothetical cases merely. Q3 Op. Atty. Gen., 531; 19 Op. Atty. Gen., 414.) It is not the duty or practice of the Attorney General to officially answer abstract or hypo- thetical questions of law. (13 Op. Atty. Gen., 568; 19 Op. Atty. Gen., 414.) To attempt in advance to settle such ques- tions is to anticipate trouble, and it may well be added, to promote trouble. (19 Op. Atty. Gen., 414; 13 Op. Atty. Gen., 531; 9 Op. Atty. Gen., 421; 20 Op. Atty. Gen., 440.) The Attorney General is not required to write abstract essays on any subject. (20 Op. Atty. Gen., 440; 9 Op. Atty. Gen., 82.) . The inconvenience will be readily perceived of giving, upon a hypothetical case, an opinion which, upon the consideration of an actual case, may require modification on account of circum- stances not imagined, and therefore not con- sidered in the preparation of the opinion. (13 Op. Atty. Gen., 531; 19 Op. Atty. Gen., 414; 20 Op. Atty. Gen., 440.) The Attorney General is not permitted, by statute or precedent, to give an opinion upon a question which does not spring out of any present, actually existing case arising m the administration of the department requesting the opinion, but which is a question in a hypotheti- cal case, and one, indeed, which may never arise, and calls in advance for an opinion as to what the department would hold in the future upon a somewhat indefinite state of facts. (19 Op. Atty. Gen., 414.) The Attorney General, for obvious reasons, must decline to answer a hypothetical question. He will not, therefore, render an opinion upon a question which, is not actually pending at the time before the head of the department request- ing it. (20 Op. Atty. Gen., 251.) The inquiry must relate not to a mere moot question but to one which requires immediate action. The answer must be necessary for the protection of the officer making the inquiry, or to insure the lawfulness of the action which he is about to take. (21 Op. Atty. Gen., 509.) It has been the uniform practice of the De- Eartment of Justice, established by an unbroken ne of opinions, to decline to give an opinion upon a question of law which will be of no assist- ance to the head of a department or the officers under him in the proper and complete per- formance of their duties; the necessity for such a practice is at once apparent, and unless it be rigorously adhered to_, the Attorney General will frequently find himself placed in the em- barrassing situation of being called iipon to ren- der opinions upon mere moot questions of law. (25 Op. Atty. Gen., 543.) It is beyond the competency of the Attorney General to give an official opinion upon a ques- tion which is purely abstract and hypothetical, and not arising out of an actual case calling for official action. (19 Op. Atty. Gen., 559, 564.) It is impossible to reply to mere speculative points or supposed cases. It has always been the rule of the Attorney General to give opin- ions only in actual cases. (9 Op. Atty. Gen., 82; 19 Op. Atty. Gen., 414; 25 Op. Atty. Gen., 440.) Whether the head of a department should enter into a certain contract, is hypothetical in its nature, unless it should be afiirmatively stated, in substance, that the acceptance of the proposal ha\'ing been determined to be proper and ad\dsable from the administrative point of view, and the head of the department being ready, accordingly, to enter into a contract, desired to kno^/ whether that step was justified by existing provisions of law. (24 Op. Atty. Gen., 118.) Whether a regulation, if issued, could be en- forced, is hypothetical as well as judicial; in- volving speculation, as if the requirement is adopted, proceedings in court to enforce it may or may not be successful. (25 Op. Atty. Gen., 93.) Whether certain regulations may be adopted and put into effect by the head of a department is hypothetical, unless the head of the depart- ment has decided to adopt such regulations or any modification thereof, provided such action would be legal on his part; and it is only under these circumstances that the Attorney General can render an opinion on the subject, as it is only then that a question of this character can be said to have so arisen in the administration of the department as to come within the terms of section 356. (27 Op. Atty. Gen., 49.) The Attorney General is prohibited by the restriction contained in section 356, Revised Statutes, from giving an opinion unless an occasion has actually arisen requiring the action of the head of the department submitting it. (20 Op. Atty. Gen., 583.) The established practice of the Department of Justice has been to consider this section as containing an implied prohibition against the rendering of an opinion by the Attorney Gen- eral unless upon a question of law which has actually arisen, and not upon one which might or could, under certain contingencies, arise in the administration of the department request- ing the opinion. (27 Op. Atty. Gen., 49.) The settled policy of the Attorney General is that no opinion should be rendered upon any question of law unless it is specifically formu- lated in a case actually arising in the adminis- tration of a department. (24 Op. Atty. Gen., 59.) The Attorney General declines to give an opinion as to the meaning of a statute, where the question does not appear to have arisen in the administration of the department propos- ing it. (19 Op. Atty. Gen., 695.) In accordance with the well-established rule, declines to answer the question whether citizens of the Philippine Islands are entitled to the benefits of the patent laws of the United States, there being no case invohang that question pending before the department' making the in- quhy. (25 Op. Atty. Gen.. 179.) Declines to express an opinion as to whether a joint resolution has any retroactive force, for 300 Justice Department. Pt.2. REVISED STATUTES. Sec. 366. the reason that the question is not predicated upon any actual case arising in the department requesting it. (24 Op. Atty. Gen., 556.) Where no occasion has arisen for the official action of a head of department, the Attorney General will not give an opinion upon a ques- tion proposed by him. (21 Op. Atty. Gen., 457.) Will not answer question which is not "pending," has already been decided, etc. — It is required not only that the question must be one arising in the administration of a department, but it" must be one which is still pending. A matter which has been consid- ered and decided is not now a " question" upon which the head of a department may require an opinion of the Department of Justice. (20 Op. Atty. Gen., 440; 28 Op. Atty. Gen., 596.) Where a claim has already been administered by the head of a department, and consequently no question remains, the Attorney General will not render an opinion even though the head of the department submits the question to him at the request of a committee of Congress. ( 15 Op . Atty. Gen., 138.) To authorize the Attorney General to express an opinion upon a question of law propounded, it is necessary that a statement of facts should be submitted showing that the question has actually arisen in the administration of a de- partment, in an existing case calling for action. He is not authorized to answer an inquiry with reference to action already taken, whether re- garded as an abstract question of law or an in- quiry into the legality of the course of a prede- cessor in office in matters not now demanding official action. (22 Op. Atty. Gen., 85.) The Attorney General declines to give an opinion upon a question submitted which ap- pears to have been decided and definitively disposed of by the department. (3 Op. Atty. Gen., 39; 20 Op. Atty. Gen., 440.) A question is not practically raised in a case where the Attorney General's opinion is de- sired only because the same difficulty which has previously arisen may occur again; but it may not, and to settle it in advance is to anticipate trouble. (9 Op. Atty. Gen., 421: 20 Op. Atty. Gen., 440.) The Attorney General can give official opin- ions only upon questions of law actually arising in the administration of the department, which are at the time pending, and which must be de- termined in order that the work of the depart- ment may be properly administered. (20 Op. Atty. Gen., 618.) The Attorney General will not give an opin- ion upon a question where it appea,rs that the department has reached a decision thereupon, and that an opinion is desired as to the " correct- ness of the interpretations and applications of said law." (28 0p. Atty. Gen., 596; 20 Op. Atty. Gen., 440.) The Attorney General declines to give an opinion to the head of a department upon a question where no case involving that question is now pending before that department. (29 Op. Atty. Gen., 46; 29 Op. Atty. Gen., 99.) An opinion will not be given by the Attorney General where it does not appear that some question exists calling for the action of the de- partment requesting it. (20 Op. Atty. Gen., 383.) The Attorney General is not permitted by statute to respond to a request for an opinion by the head of a department which does not show that a case has presently arisen in the ad- ministration of the department. (21 Op. Atty. Gen., 506.) The Attorney General will not give an opin- ion upon an important legal question when it is not practically presented by an existing case before a department. (21 Op. Atty. Gen., 506, citing 9 Op. Atty. Gen., 421; 10 Op. Atty. Gen., 50; 13 Op. Atty. Gen., 531; 19 Op. Atty. Gen., 3.32.) From the foundation of the Government it has been held that the Attorney General is neither required nor authorized to give an opinion upon the request of the head of a de- partment except in cases actually pending for decision bv him in such department. (20 Op. Atty. Gen., 536, citing 19 Op. Atty. Gen., 7; 19 Op. Atty. Gen., 331.) The Attorney General is not authorized by statute or precedent to respond by an official opinion as to a question of law not shown to be pending and of present executive consequence. (20Op.Atty.Gen.,50.) An opinion will not be given by the Attorney General where it does not appear that some question exists calling for the action of the de- partment requesting it. (20 Op. Atty. Gen., 383; 19 Op. Atty. Gen., 342; 19 Op. Atty. Gen., 439.) The cases in which the Attorney General is authorized to give ooiniona to the heads of executive departments are such as are actually pending in such departments and involve the legal questions submitted. A convicted de- serter from tlie Army, undergoing sentence, must become the recipient of executive clem- ency and must make application for reenlist- ment, before the question of the effect of the President's pardon upon his right to reenlist can arise. (21 Op. Atty. Gen., 568.) The question whether a Chinaman resident of the United States could lawfully return if he should revisit his n?tive country, is not a question arising in the administration of the Treasury Department, and can not arise until this Chinaman's return to this country, if he shall decide to depart. Therefore the Attorriey General could not properly give the opinion requested. (20 Op. Atty. Gen., 667.) WTiether a certain American steamer, if re- built in Canada, can be reregistered on her return as a vessel built in the United States, is not a question for the present action of the Secretary of the Treasury, and the Attorney General can not properly give an opinion thereon. (20 Op. Atty. Gen., 723; following 20 Op. Atty. Gen., 667.) When the solution of the question is not nec- essary to the discharge of any duty properly belonging to the department, it is not the duty of the Attorney General to give an opinion thereon, and such opinion would consequently be extra-official and unauthorized. (10 Op. Atty. Gen., 220; 19 Op. Atty. Gen., 7; 20 Op. Atty. Gen., 724; see also, 1 Op. Atty. Gen., 611; 1 Op. Atty. Gen., 575; 2 Op. Atty. Gen., 311; 2 Op. Atty. Gen., 513; 3 Op. Atty. Gen., 368; 6 Op. Atty. Gen., 325.) 301 Sec. 366. Pt. 2. REVISED STATUTES. Justice Department. Will not review decision of a depart- ment. — The Attorney General does not possess tho power to revise the decisions of an execu- tive dej)artment, delil)orately made, and en- tirely satisfactory to the Secretary thereof. (28 Op. Atty. Gen., 596; 3 Op. Atty. Gen., 39.) The Attorney General can not pro7)erly ex- firess an official opinion upon a question which las been decided I>y a department and is pre- sented merely because of tne request of counsel for parties interested. (28 Op. Atty. Gen., 596.) Where a question appears to have been de- cided and definitively disposed of by a de- partment, after very full consideration, upon grounds then and still believed by it to be indisputable, and to be referred to the Attorney General solely in compliance with request of the claimant, the Attorney General can not undertake to give an official opinion thereon without assumiuo; that his office possesses a revisory jurisdiction not conferred upon it by law. (3 Op. Atty. Gen., 39; 20 Op. Atty. Gen., 440; file 11130-2:0. Mar. 26, 1910.) An appeal does not lie to the Attorney Gen- eral from another department liy any party assuming to l^e aggrieved by its action and seek- ing to have it reviewed. (6 Op. Atty. Gen., 326, 3.34.) The Attorney General is not an appellate tribunal for the reexamination of decisions of the executive departments on matters of fact. In rendering an opinion he must accept the facts given him by the head of the department calling for his opinion. To act otherwise would involve a usurpation of power. (3 Op. Atty. Gen., 1.) The Attorney General is ol)liged to take the facts of a ca-se as they are stated to him hy the head of the department requesting his opinion, and to predicate his opinion there- on. (3 Op. Atty. Gen., 309.) It is not within the authority of the Attorney General to reverse a decision of the Civil Service Commis.sion or to require it to issue a certificate of reinstatement; as the Civil Ser\ice Commis- sion is vested with authority in the matter of certification, and when it has exercised that authority it is not apparent that any question in the premises remains upon which the statute permits the head of a department to reqiure the opinion of the Attorney General. (20 Op. Atty. Gen., 270.) No statute exists which authorizes the head of a department, or the Attorney General at his suggestion, to reverse or review the decision of the Civil Service Commission that a person is not entitled to reinstatement. Accordingly the Attorney General declines to render an opinion, upon request of the head of a depart- ment, as to whether or not the commission interpreted the law correctly. (20 Op. Atty. Gen., 158.) The Attorney General is not permitted to give an opinion where he is asked to review and express his conclusions upon the correct- ness of the interpretation and application of the law previously made by the head of a depart- ment and not upon a question pending and undetermined. (20 Op. Atty. Gen., 440.) The Attorney General will not render an opinion where it appears that the department has reached conclusions thereupon, and that an opinion is desired as to the correctness of its interpretation and application of the law. (28 Op. Atty. Gen., 590.) A matter which has ])een considered and de- (ided is not now a "question" upon which the head of the department may require an opinion of the Attorney General. (28 Op. Atty. Gen., 596; 20 Op. Atty. Gen., 441. 442.) The Attorney General will not, at the request of a head of a department, review the decision of the head of another dei)artment, which latter department had complete and lawful jurisdic- ti(m. (II Oj). Atty. Gen.. 189.) Will not answer question submitted by head of a department merely for informa- tion of subordinate. — The Attorney General is not authorized or required to give an offic ial opinion to the head of a department, except where it is needed for the latter's guidance in some matter calling for action or decision on his part. Accordingly he can not render an opinion to the Secretary of the Interior upon a question wliich arose in the administration of the office of Commissioner of Patents, and re- lates to his duties under the law; as to do eo would be to overstep the boundaries prescribed for him by a long line of decisions and uniform practice, and to commit himself upon a ques- tion which might properly be submitted to him thereafter by the Secretary of the Interior. (21 Op. Atty. Gen., 174; 20 Op. Atty. Gen., 609, 723.) The Attorney General's opinion can not be asked upon questions relating only to the duties of the Commission to the Five Civilized Tribes; advice which can not be asked directly by the Commissioners the Attorney General is not authorized to furnish even when they put the question through the head of a department. His opinion should be needed for the guidance of the head of a department, and should relate to some matter calling for the latter's action or decision. (20 Op. Atty. Gen., 724.) The Attorney General is not the official legal adviser of subordinate officers in tlie depart- ments. It is true that he often gives the heads of departments ad\'ice and opinions upon ques- tions arising in the bureaus of their respective departments, but such advice and opimons are intended to aid only the judgment of the Sec- retary himself in deciding such questions. To enlarge the rule beyond this extent would not only he unwarrantecl by law, but would convert the Attorney General into a sort of general appellate court, where dissatisfied claimants might seek relief from adverse decisions and subordinate executive officers find a way of escaping from official labor and responsibility. (11 Op. Atty. Gen., 4.) As to whether an excep- tion exists in the special cases of questions aris- ing in the War and Naw Departments, see 18 Op. Atty. Gen., 59, noteci under sec. 357, H. S.) The Attorney General is not required to give an opinion except on such questions as are necessary to guide the heads of departments in their actions. Accordingly he has no power to give an official opinion ui)on questions referred to him by the Secretary of the Treasurj-- for the guidance not of the Secretary' Vmt of an auditor. (20 Op. Atty. Gen., 251.) The questions which the Attorney General is required to answer are only those the decision of which is needed to govern the action of the 302 Justice Depaxtment. Pt. 2. REVISED STATUTES. Sec. 356. head of a department in cases actually arising therein, and the Attorney General must decline to answer a question asked by the head of a department which pertains only to the powers and duties of a commission, although such a commission is properly to be regarded as within the department. (19 Op. Atty. Gen., 673.) The Attorney General has no power to give an official opinion on questions referred by the Secretary of the Treasury at the request of an auditor for the guidance of the latter, in a case where, under the law, no appeal could be taken from the auditor's action to the head of the Treasury Department. The question there- fore was not pending before the Secretary of the Treasury and evidently could not reach him. ill Op. Atty. Gen., 4.) The Attorney General has no authority to give an opinion to the Secretary of the Treasury upon questions relating to the past action of the Board of Supervising Inspectors, which is not reviewable by the Secretary. (18 Op. Attv. Gen., 77.) The Attorney General declines to express an opinion upon a question asked him by the Sec- retary of the Interior for the reason that it is not predicated upon an actual case arising in the department; and also because that department has an officer clothed with authority to deter- mine questions of that nature in the first in- stance, coming up on appeal from the Pension Bureau. (24 Op. Atty. Gen., 556.) Wliere the question is one within the exclu- sive jurisdiction of the Comptroller of the Treas- ury, the Attorney General will not render an opinion upon the request of the Secretary of the Treasury. If, however, the matter is one upon which ti.e Secretary's action will be necessary, an opinion will be rendered on it. (20 Op. Atty. Gen., 279.) [In 23 Op. Atty. Gen., 30, the Attorney General rendered an opinion with reference to the question of pay of certain naval officers on promotion, which was pending before the Comptroller of the Treasury; in this case the Secretary of the Treasury requested the opinion of the Attorney General upon certain questions proposed by the Comptroller of the Treasury and transmitted with the Secretary's note. The opinion was for the guidance of the Comptroller. See also below, "Jurisdiction, At- torney General and Comptroller of the Treas- ury."] With reference to the question whether the accounting officers of the Treasury may legally allow claims for transportation upon requests fraudulently issued by an officer of the Army, which question was transmitted to the Attorney General by indorsement of the Secretary of the Treasury on a letter of the Comptroller of the Treasmy, the Attorney General rendered an opinion to the Secretary. (23 Op. Atty. Gen., 161.) Upon request of the Secretary of the Treasury, the Attorney General rendered an opinion upon questions proposed by the Comptroller of the Currency. (27 Op. Atty. Gen., 324.) [In 27 Op. Atty. Gen., 38, the Attorney General expressed doubt as to whether he was required to render an opinion to the Secretary of the Treasury upon questions referred to him at the instance of the Comptroller of the Currency, requiring action by the latter, although the comptroller could perform the duty only under the general direction of the Secretary. How- ever, as a matter of courtesy and public policy, the doubt was resolved in favor of the propriety of rendering the opinion requested.] Wni not answer question submitted by head of department merely for informa- tion of Congress. — The Attorney General will not render an opinion upon a claim which has aheady been administered by the head of a department, who submits the question to hhn at the request of a committee of Congress. (15 Op. Atty. Gen., 138.) Congress has not thought proper to empower its committees to require the Attorney General's opinion directly, and he will not render an opinion upon the request of the head of a de- partment at the suggestion of a congressional committee where it is not required for the guidance of the head of the department. (15 Op. Atty. Gen., 138.) Where a call for an opinion from the Attorney General was made by the head of a department in comphance with a resolution of the House of Representatives, for the information of the latter, without reference to any question of law arising in the administration of such de- partment, the Attorney General is without authority to give an official opinion in such case. (18 Op. Atty. Gen., 107.) (In this case the Attorney General's opinion had previously been directly requested by resolution of the House of Representatives and declined. (See 18 Op. Atty. Gen., 87.) The Attorney General is not authorized to give his official opinion to the head of a de- partment upon a question not involving de- partmental administration but referred to him at the request of a Senator in order that such opinion might be laid before a committee of the Senate. (17 Op. Atty. Gen., 358.) The Attorney General is not authorized to render an opinion upon the request of a head of department, upon a question not demanding any present official action by the latter but intended for the information of a congressional committee. (22 Op. Atty. Gen., 85.) Will not answer question submitted by head of department merely for informa- tion of contractors. — It is not the duty of the Attorney General, nor has he a right, to give an official opinion with a view to the guidance of persons who may propose to enter into con- tract relations with the United States. It is not permissible for the Attorney General to give an opinion except in a case actually arising in the administration of one of the departments. (20 Op. Atty. Gen., 465.) The function of the Attorney General is to advise the several heads of the other executive departments upon the questions of law which, in the administration of their respective de- partments, they are required to decide. But the head of a department is not required by law to become the legal adviser of a party pro- posing to enter into a contract with the Govern- ment. Where the Attorney General's opinion is requested by the head of a department to enable the latter to advise contractors, the At- torney General is not authorized to give an opinion. (20 Op. Atty. Gen., 463.) 303 Sec. 356. Pt. 2. REVISED STATUTES. Justice Department. It is clear that a question propounded !>>• a Government contractor is one which the Secre- tary of the Treasury is not called upon to answer; hence it is not, witliin the language of this sec- tion, "a question of law arising in the adminis- tration of his department." (20 Op. Atty. Gen., 500, 502.) The Attorney General is not authorized to render an official opinion at the request of the head of a department where the information is desired for tne guidance of certain prospective bidders, as the question is not one which such head of department is called upon to decide in the administration of his department. (28 Op. Atty. Gen., 534.) Will not answer question submitted by- head of department in ■which United States has no interest. — The Attorney Gen- eral will not render an opinion upon a question where it appears upon a perusal of the papers that the L'nited States have no interest in the incjuiry, and consequently that any opinion on his part would be not only gratuitous but unauthorized. (2 Op. Atty. Gen., 311.) It is not the duty of the Attorney General to give official opinions except in cases in which the Government is interested. Nor will the Attorney General render an unofficial opinion in such a case, even as an individual, because in the relation he stands to the Government an opinion from him on the subject might be looked upon as an official one, and thus con- nect the Government with an individual con- troversy in which it has no concern and with which it ought not to interfere. (2 Op. Atty. Gen., 531.) The question whether a bond taken by the collector of a port from one of his subordinates, for his own protection, is valid in the absence of a statute authorizing it, not appearing to be a question in which the United States are con- cerned, or one arising in the administration of a department, the Attorney General decHnes to give an official opinion thereon. (19 Op. Atty. Gen., 556.) Questions of law, of concern to private parties, and in which the Government has no interest, are to be settled by courts and juries. The individuals may, if they choose, consult counsel on such questions for their own guid- ance; but the law gives them no authority to bring such questions to the head of a depart- ment, nor will the Attorney General render his opinion thereon upon request of the latter. (1 Op. Atty. Gen., 575.) The Attorney General is not to give advice to heads of departments on matters which do not concern their departments, and in which the United States have no interest; nor is he authorized to give official opinions in any case not falling within the scope of his duties, so as to connect the Ciovemment with individual controversies in which it has no concern and with which it ought not to interfere; nor ought he to advise individuals in regard to any ques- tion of legal right depending between them and the Government. (6 Op. Atty. Gen., 326, 334.) It is not the duty of the Attorney General to give an opinion on a question with which the Government has no present concern. (9 Op. Atty. Gen., 355; 19 Op. Atty. Gen., 414.) He has no authority to give any opinion or advice on questions of law except for the assistance of the oflScer calling for his opinion. (3 Op. Atty. Gen., 309.) The Attorney General is not authorized to answer questions of law submitted to him by the Secretary of the Interior only at the request of the ("herokoe Nation and which do not con- cern the "administration" of the Interior Department. (IG Op. Atty. Gen., 404.) The question whether, if a certain American steamer shall be rebuilt in Canada, she can be reregistered on her return as a vessel built in the United States is not for the present action of the Secretary of the Treasury, but that the owners of the vessel may know what his future action would be in case they decided to have the repairs done in Canada. It would not be proi)er for the Attorney General to give the opinion requested. (20 Op. Atty. Gen., 723; following 20 Op. Atty. Gen., 667, as to whether a Chinaman resident of the United States could lawfully return if he should revisit his native country.) Where a question presented to the Attorney General by the Secretary of War is one of strictly private concern to certain officers of the Army and in no sense of pubUc interest, it is not a question arising in the administration of the War Department on which the Attorney General will render an opinion. The obvious course for such officers to pursue is that which is open to every person inclined to pursue a course as to the legal consequences of which he is in ignorance or doubt. He should seek the advice of private counsel learned in the law and obtain their opinion, for which if given without due care such counsel can be held to a personal accountability. (21 Op. Atty. Gen., 510.) The question whether a retired officer of the Army can accept another public office is not a subject with which the United States can be concerned until some action has been taken by such officer contrary to law. Manifestly, the solution of that question by any retired officer of the Army and the course of conduct which he may adopt in pursuance of that solution, is a matter of his private concern only. The At- torney General can not, therefore, render an opinion upon the questicm at the request of the Secretary of War, as the Attorney General is not permitted to give an opinion as to the con- struction or interpretation of a statute except in an actual case which has arisen before one of the executive departments calling for its action in the regular course of its affairs. (21 Op. Atty. Gen., 510; but see 29 Op. Atty. Gen., 397, where the Attorney General rendered an opinion to the Secretary of the Navy upon a somewhat analogous question, viz, whether a retired officer of the Marine Corps could accept compensation for appearing as counsel before any department, court-martial, etc.; and in 29 Op. Atty. Gen., 503, the Attorney General ren- dered an opinion concerning the legality of appointing a retired officer of the Navy as a clerk in the civil service, but in this case the appointment had already been made, and the opinion was requested by the President.) Will not answer question unless it arises in the department which requests opin- ion, — The Attorney General is not authorized 304 Justice Department. Ft. 2. REVISED STATUTES. Sec. 356. by statute or precedent to respond by an official opinioD as to a question of law not arising in the department from which the inquiry is sent. (20 0p. Atty. Gen.,50.) "WTiere there is no way of enforcing a statute except tlirough the courts, the question is one arising in the Department of Justice, and the official opinion of the Attorney General can not be required thereon by the head of another department. (21 Op. Atty. Gen., 6.) The question whether or not to commence a civil action or a criminal prosecution is one which must ordinarily be decided by some officer of the Department of Justice, and is not, therefore, a question upon which the opinion of the Attorney General can be requested by the head of another department. If any other department of the Government is informed of facts which seem to require such action to be taken, its duty is to communicate them, to- gether with any suggestion which it desires to make, to the Department of Justice, whose duty it is to decide whether proceedings shall be instituted, and if so, against whom. (21 Op. Atty. Gen., 509.) The Attorney General will not, at the request of the head of a department, re\dew the deci- sion of the head of another department, which latter department had complete and lawful jurisdiction. (11 Op. Atty. Gen., 189; Op. Attv. Gen., Nov. 7, 1917, file 26510-1022:11, C. M. O. 37-1918, p. 21). The power of the Attorney General to give an opinion on request of the head of a department is confined to questions arising in the adminis- tration of the department calling for the opinion . T^Tiere a question had been finally disposed of by the War Department, but the accounting officers had gone behind the Secretary's action and decided the case against the claimant, it is quite evident that the questions involved have no relation to a matter before the War Depart- ment for action. (20 Op. Atty. Gen., 588.) The question whether a former employee can be reinstated in a department is not a question pending in that department, but in the Civil Service Commission, which is vested with authority in the matter of certification. Ac- cordingly, when the commission has exercised that authority, no question remains with the department upon which the statute permits the Attorney General to render an opinion upon request of the Secretary. (20 Op. Atty. Gen., 270; 20 Op. Atty. Gen., 158.) The eligibility of a person for appointment in a department under the civil serAdce is not a question arising in the department, but is one uiider the jurisdiction of the Civil Service Com- mission. The Attorney General can not, there- fore, render an opinion upon request of the head of the department. (28 Op. Atty. Gen., 393.) The law and uniform practice of the Attorney General precludes him from respond- ing. (28 Op. Atty. Gen., 431.) ^\^lere a law provides for indemnity to officers and enlisted men of the Army, and vests the accounting officers of the Treasury with juris- diction to determine whether the loss occmred under the circumstances set forth in the act, the Attorney General will not render an opinion to the Secretary of War upon the question, as it does not appertain to the administration of the War Department. (19 Op. Atty. Gen., 693.) Where an auditor directs a suspension against an officer of the Army, the same being the amount of an alleged excessive allowance made to liim by the Deputy Paymaster General, such action of the auditor does not relate in any way to a matter which requires the action of the Secretary of War as falling within the scope of his official duties. The Attorney General will express no opinion where the matter is not one requiring the official action of the head of the department. (20 Op. Atty. Gen., 420.) The Attorney General is not authorized to give an opinion to the Secretary of the Treasury as to the proper construction of a pension appro- priation act, inasmuch as it appears that the Treasury Department is bound by the rulings of the Department of the Interior in construing that law, and therefore no question is pending in the Treasury Department arising in the administration of that department. (20 Op. Atty. Gen., 178.) The propriety of keeping every branch of the executive Government within its legal sphere is clear. The confusion which would unavoid- ably ai-ise if one branch was permitted to usurp the functions of another would be disastrous to the proper work of the whole. When, there- fore, a "difference of opinion" arises between several executive departments as to the con- struction of the law, the primary question is as to which is vested with the determination and responsibility of the question. That only one can have jurisdiction over the subject matter is plain. (20 Op. Atty. Gen., 178, 180.) The Attorney General, upon request of the Secretary of the Na\'y, will render an opinion as to the validity of a Navy regulation, and whether it is binding upon the accounting officers, in a case where the Comptroller of the Treasiuy had previously held the regulation to be void, and declined to concm- in a refer- ence of the question to the Attorney General. (30 Op. Atty. Gen., 376, 171 S.andA. Memo., 3611, reversing21Comp.Dec.,554, 357, 245.) Where a claim pending in the Department of State was referred by the Secretary of State to the Secretary of the Treasury for the latter's opinion, this did not make the question one arising in the Treasury Department and author- ize the Secretary of the Treasmy to require an opinion of the Attorney General on it. The whole subject belonged and still belongs to the State Department. The Attorney General can not give an opinion upon a matter referred to him by the head of a department who is not authorized to act on such matter. (20 Op. Atty. Gen., 249.) The Attorney General can not render an opinion to the Secretary of the Treasury upon a question concerning the Board of Health of the District of Columbia, such question not arising in the administration of any of the Ex- ecutive Departments. (13 Op. Atty. Gen., 535.) The Attorney General decHnes to render an opinion upon a question not arising in the administration of the department asking the opinion. (29 Op. Atty. Gen., 226.) 305 Sec. 356. PL 2. REVISED STATUTES. Justice Department. The Attorney General will not render an o])inion upon the request of the head of a dopurtmeut where it is intended for the in- fornuition of a commission appointed to revise the hvw3 of the United States. The commis- sion was invested by Congress with discretion to determine what existing laws are of a per- manent and general nature. \\'here the chair- man of the commission asked the head of a dei)artmeut whether a portion of the revision correctly embodied the provisions of existing law upon that subject, that did not make the cjuestion one arising in the department requir- ing a determination thereof. The question was one essentially arising in the commission, and not therefore one upon which it was the duty or province of the head of the department to act. (25 Op. Atty. Gen., 584.) [The Attorney General rendered an opinion to the Secretary of the Interior upon a ques- tion not pending before that department, viz, as to the sufficiency of the return of a public contract made by the Secretary of the Navy; because, while the question was not pending before the Interior Department, it was proper that the Secretary of the Interior should be advised whether the case submitted presented a violation of the statute, since it is his duty to call apparent violations of the statute to the attention of the Department of Justice. (29 Op. Atty. Gen., 293.)] Will not answer a judicial question. — Where questions propounded are judicial in character and must be decided by the courts, if decided at all, an expression of an opinion on them by the Attorney General would have no more weight than the opinion of any unoffi- cial person. The Attorney General must confine his opinions to questions strictly ap- pertaining to executive administration. (20 Op. Atty. Gen., 383.) The Department of Justice has always been reluctant to pass upon questions which properly belong to the judicial rather than to the execu- tive branch of the Government. (20 Op. Atty. Gen., 673; 19 Op. Atty. Gen., 56.) The Attorney General declines to render an opinion upon a question judicial in character. (29 Op. Atty. Gen., 226.) The statutes in providing for official opinions by the Attorney General did not intend to cover questions which are substantially a re- quest for advice as to whether or not a prose- cution had better be instituted. The Attorney General's opinion on such a question w-ould not bind a court in any way. It could as well be asked before instituting every civil suit or prosecution for crime. (20 Op. Atty. Gen., 673.) The organic distinctions between the tliree great divisions of Government established by the Constitution must be respected or collisions and discords inimical to good gov- ernment will inevitably take place. The executive department of the Government is not warranted in assuming to determine a controversy properly cognizable by the judicial department of the Government. For the Attorney General to render an opinion might be regarded as an attempt of the execu- tive branch of the Government to forestall judicial proceedings. (19 Op. Atty. Gen., 56.) [This case involved the j)ower of the State of California to divest certain rights claimed by the Indians.] The Attorney General has always exliibited great and proper reluctance to pass upon any question whose answer might bring the Depart- ment of Justice into conflict with a judicial trilninal. (20 Op. Atty. Gen., 618.) The Department of Justice will not consider any question committed to judicial review. To do so might l)ring it in conflict with a judi- cial tribunal. (24 Op. Atty. Gen., 59; 23 Op. Atty. Gen., 221.) The Attorney General can not g'\e an opinion upon a judicial question, such as whether or not the head of a department has any remedy at law against private parties who have had dealings with the Government. (21 Op. Atty. Gen., 369.) The Attorney General declines to give an opinion where the question presented is a judicial one (whether an objection made to the naturalization of an alien should have been sustained). (29 Op. Atty. Gen., 99.) It is not the practice of the Department of Justice to give an opinion in a matter where the question involved is disputable and is the subject of a pending suit, as such action would be equivalent to expressing an opinion as to whether the question ought to be decided in favor of the Government and might Ijring the department into conflict with a judicial tribunal. (23 Op. Atty. Gen., 221.) The question whether a proceeding under any law would or would not be successful is a judicial question, on which it is not neces- sary or proper for the Attorney General to give an official opinion. (22 Op. Atty. Gen., 181.) It is inexpedient for the Attorney General to render an official opinion as to whether a civil suit or criminal prosecution, if brought by the Government, ought to be decided by the courts in its favor, such question being essen- tially judicial in character. (20 Op. Atty. Gen., 702.) "Whether or not an express company or its agents in carrying unmailable matter is guilty of a crime for which the statutes impose a penalty is essentially judicial in character, and one wliich must ultimately be decided by the judicial department of the Govern- ment. The Attorney General will not decide such question further than to say that the facts stated seem to make a prima facie case, and to render it proper that the Postmaster General should direct a prosecution of the guilty parties. Such prosecution will result in a judicial construction of the law. (19 Oj). Atty, Gen., 670.) The question of the right of a State to tax lands in an Indian reservation is judicial and not administrative. The Attorney General ought not to express an opinion upon it. The better coxirse would be to make a test case, with a view to the determination of the Federal question by the Supreme Court of the United States. The Attorney General will be glad to cooperate with the officer requesting his opinion in the proper measures to get a judicial deter- mination of the important question involved. (20 Op. Atty. Gen., 277.) 306 Justice Department. PL 2. REVISED STATUTES. Sec. 356. Whether any giveu acts or practices consti- tute a crime is a question for the determination of the courts, not of the Executive Departments, except where some executive action depends upon that determination. Such are not ques- tions of law arising in the administration of the department asking an opinion. (20 Op. Atty. Gen., 210.) [The question in this case was whether or not pictures of coins constitute a violation of an act defining a criminal offense and prescribing the penalty upon conviction thereof.] Statutes of limitation apply to the legal reme- dies and not to the rights of the parties. Whether the statute of limitations does or does not bar a claim on behalf of the Government is, therefore, a judicial question to be determined by the courts and not bv the Attorney General. C21 Op. Atty. Gen., 557, 564.) The matters covered by certain questions submitted for opinion held clearly justiciable in the appropriate courts at the suit of the par- ties themselves who are interested in them. They are essentially judicial in their character, and as each is readily resolvable into a case at law or in equity it can not be said to be a ques- tion arising in a course of executive adminis- tration. (19 Op. Atty. Gen., 56.) The jurisdiction of consuls as courts is a judicial question, subject to review by regular appeal provided by statute, and any opinion thereon would be beyond the power conferred upon the Attorney General and might be re- garded as an invasion by the executive branch of the Government of another and independent branch, so far as judicial functions are exer- cised. [Also, in this case the question was purely hypothetical.] (20 Op. Atty. Gen., 391, 393.) The Attorney General can not properly ex- press an official opinion upon a question which must ultimately be decided by the courts. [Also in this case the question had already been decided by the department and was pre- sented to the Attorney General merely because of therequestof counsel for parties interested.] (28 Op. Atty. Gen., 596.) The Attorney General can not answer the question whether a regulation if issued under the tariff act could be enforced, as the question is both hypothetical and_ judicial j involving speculation as if the requirement is adopted, proceedings in court to enforce it may or may not be successful. (25 Op. Atty. Gen., 93.) The Attorney General can not properly pass upon the question whether the courts in this country have authority to execute letters roga- tory issued out of the German Patent Office, as that is a matter for judicial and not for execu- tive determination. "I can not speak for the courts. It is for the different courts of the various jurisdictions. Federal and State, to say when the motion comes before them for deci- sion, whether or not they have the necessary authority in the premises." (24 Op. Atty. Gen., 69.) Declines to express an opinion as to the lia- bility of the postmaster at Baltimore, Md., for a sum of money paid by him to a former clerk in the Baltimore post office and for which no service was performed, for the reason that the question is essentially a judicial one, amount- ing to an inquiry whether in regular legal pro- ceedings a court and jury would hold that officer liable. Advised, however, that the cir- cumstances may be regarded as showing a prima facie case of liability, calling for action in the way of securing a judicial determination of the question of Liability. (25 Op. Atty. Gen., 97.) DecUnes to express an opinion upon question whether a willful refusal to give true answers to inquiries concerning census statistics would subject a person to the penalties prescribed by a certain law, for the reason that the question is preeminently one for judicial and not execu- tive determination. Whatever the proper con- struction of the law may be, the punishment referred to could be inflicted in no other way than by proceedings in court. (25 Op. Atty. Gen., 369.) Whether proceedings by court-martial would bar proceedings in the civil courts for an assault or other crime involved in the offense of hazing, not answered, for the reason that it would be of no assistance to the Secretary of the Navy or the Sui^erintendent of the Naval Academy in the proper discharge of their duties ; and should such action be taken the matter would pecu- liarly be one for the consideration of the Depart- ment of Justice. (25 Op. Atty. Gen., 543.) Whether a suit by the Government to enforce recovery from the owners of a vessel of amounts expended by the United States in the trans- portation back to this country of destitute seamen would be successful is speculative and hypothetical, and beyond the powers and functions of the Attorney General ujider the statutes to answer. The question of the actual Liability of the vessel owners is judicial in its nature, and must be determined by the courts. (26 Op. Atty. Gen., 631.) If any conflicting claims should arise between the Federal and State governments as to juris- diction over lands owned by the United States, they will be judicial questions. (10 Op. Atty. Gen., 34.) IV. Form of Request for Opinion. Facts must be definitely stated. — When an opinion is requested of the Department of Justice on behalf of the head of another Execu- tive Department, the facts must be definitely formulated and clearly stated by the person asking the opinion. The Attorney General can not be required to extract a finding of facts from correspondence or reports. (22 Op. Atty. Gen., 342.) The Attorney General can not give official opinions without a definite statement of the facts upon which the question is submitted. (21 Op. Atty. Gen., 36; 28 Op. Atty. Gen., 393.) The Attorney General can not properly make a statement of the facts for his own use out of the correspondence submitted to him for an opinion. "The facts upon which the question is submitted should be agreed and stated as facts established." (21 Op. Atty. Gen., 36; 12 Op. Attv. Gen., 206; 20 Op. Atty. Gen., 440; 18 Op. Atty. Gen., 488; 9 Op. Atty. Gen., 82.) The reason for this is that if the Attorney General should render an opinion upon such a case as he might collect from the papers, he might not see the case in all its parts in the same light as that in which it is seen by the officer 307 Sec. 366. Pt.2. REVISED STATUTES. Justice Department. requesting liis opiuion. (21 Op. Atty. Gen., 36; 19 Op. Atty. Gen., 396.) Also, by obspn-ing the simple rule of stating the material facts of the case and the precise questions on wliich advice is wanted, "the real point of diflliculty in the ca.>^e will be at once perceived, much inconvenience avoided, and more practicable and satisfactory results ob- tained." (21 Op. Atty. Gen., 36; 14 Op. Atty. Gen., 367, 368.) The head of the department requesting an opinion need not hunself state the facta, but it is essential that the facta should be laid before the Attorney General ^vith the assurance of the head of the department that they are accurate and tmstworthy. The Attorney General is willing to disregard any informality in the manner of presenting such facts. (10 Op. Atty. Gen., 267.) It is not within the competency of the Attor- ney General to make a finding of facts in any case; he can only give his opinion on questions of law arising upon a statement of facts pre- sented by the officer requesting liis opinion. (19 Op. Atty. Gen., 696.) The Attorney General must have a definite statement of the facts before responding to a request for his opinion. (21 Op. Atty. Gen., 36; 18 Op. Atty. Gen., 487.) The Attorney General will lay aside the evi- dence submitted for his consideration with re- quest for an opinion, and take as the case for opinion the statement contained in the com- munication from the head of the department. (19 Op. Atty. Gen., 547.) "^Tiere papers containing evidence accom- pany request for an opinion, the Attorney General will not examine same but will assume that all the facts have been found in favor of the applicant. He can not consider questions of fact iipon evidence submitted. (20 Op. Atty. Gen., 253, 256.) WTiether the facts are presented by the head of a department in the form of a direct state- ment or of an argumentative examination of the circumstances can make no difference; they must be accepted by the Attorney General as the bases of Ids reflections and judgment in rendering liis opinion. (3 Op. Atty. Gen., 1.) It is inappropriate for the Attorney General to re-\dew certain briefs and correspondence submitted to Mm by the liead of a department ^\ith request for an opinion thereon, as to do so would require liim to consider questions of fact and some questions of law which clearly have not arisen m the administration of the depart- ment. (27 Op. Atty. Gen., 49.) It has been held from a verj^ early date that to obtain an official opinion of the Attorney General, the request therefor should embody a statement of facts in the nature of an agreed case in an action at law, and not leave it to the Attorney General to draw inferences of fact from correspondence or documents. (20 Op. Attv. Gen., 614.) WTiere no statement of the facts is presented, the Attorney General can not render an opinion. "Without, so far as I know a single exception, it has been held that under section 356, Revised Statutes, it is penni'ssible for the Attorney General to give an opinion only upon a case succinctly stated — that is, to answer specific questions of law upon facta set forth." (20 Op. Atty. Gen., 526, citing 19 Op. Atty. Gen., 396, 465; 18 Op. Atty. Gen., 487. See also 20 Op. Atty. Gen., 493.) "Accompanying the letter [requesting opin- ion] is a considerable bundle of papers from which it is apparently expected I vdW glean the facts and then communicate the desired infor- mation. I am very sorry that under the uni- form ridings of this office I am unable to com- ply with this request." (20 Op. Atty. Gen., 526.) The Attorney General is not permitted by statute to respond to a request for an opinion by the head of a department which does not show what the facts are. (21 Op. Atty. Gen., 506.) It must be deemed settled that the Attorney General can only act upon a determinate state- ment of the facts furnished by the officer asking his opinion. (10 Op. Attv. "Gen., 267; 11 Op. Atty. Gen., 189; 21 Op. Atty. Gen., 506.) Where an official oi)inion from the Attorney General is desired on questions of law arising in any case, the request should be accompanied with a statement of the material facts of the case. (21 Op. Atty. Gen., 506; 14 Op. Atty. Gen., 367.) To authorize the Attorney General to express an opinion upon a question of law propounded, it is necessary that a statement of the facts be submitted showing that the question has actu- ally arisen in the administration of a depart- ment in an existing case calling for action. (22 Op. Atty. Gen., 85.) The settled policy of the Department of Jus- tice is that no opinion should be rendered upon any question of law unless it is accompanied by a statement or finding of the facts involved. (24 0p. Atty. Gen., 59.) " You do not give me as the basis for an opin- ion any agreed statement of facts, but on the contrary ask for an expression of my opinion upon facts to be gathered from the inclosures of your letter. It has been the invariable rule of this department to decline to give an opinion except when the request is 'accompanied by a statement or findings of the facts involved.'" (24 Op. Atty. Gen., 102, citing 23 Op. Atty. Gen., 331.) The Attorney General can not properly re- view a record and memorandum submitted, and render his opinion, based upon facts deduced therefrom. (26 Op. Atty. Gen., 378.) It has been the invariable rule of the Depart- ment of Justice to decline to give an opinion upon any question of law unless it is accom- panied by a statement or finding of the facts in- volved. (26 Op. Atty. Gen., 378, citing 23 Op. Atty. Gen., 330; 23 Op. Atty. Gen., 473; 24 Op. Atty. Gen., 59; 24 Op. Atty. Gen., 102.) The facts upon which the question of law arises must be found and definitely stated in the request for an opinion, and not left for the Attor- nev General to extract from the papers submit- ted. (26 Op. Atty. Gen., 609.) The Attorney General must express his regret that the request of the Department of Justice, so often made, which requires that a request for an official opinion shall be accompanied by a statement of the facts, should have been disre- garded. (26 Op. Atty. Gen., 579.) When the opinion of the Attorney General is required by the head of an Executive Depart- 308 Justice Department. Pt. 2. REVISED STATUTES. Sec. 356. ment, it is necessary that the facts should be plainly stated, and the question upon which the opinion is desired should be specifically pro- pounded. The Attorney General can not take the responsibility of examining all the papers in the case, and gathering therefrom a conclu- sion as to what particular matters he shall pass upon. [In this case the Secretary of War re- ferred papers to the Attorney General by indorsement "with request for opinion on the questions presented by the Judge Advocate General of the Army."] (22 Op. Atty. Gen., 498.) Question of law must be specifically for- mulated.— The settled policy of the Attorney General is that no opinion should be rendered upon any question of law unless it is specifically formulated in a case actually arising in the ad- ministration of a department. [In this case the head of the department did not request an opin- ion upon any specific question, but referred to a communication inclosed.] (24 Op. Atty. Gen., 59.) It has been the invariable rule of the Attorney General to decline to give an opinion upon any question of law unless it is "specifically formu- lated." (26 Op. Atty. Gen., 378.) The question of law upon which the opinion of the Attorney General is desired must be clearly and definitely formulated. (26 Op. Atty. Gen., 609.) The Attorney General can not give an opinion upon a general subject but only on one or more specific questions of law based on a case stated. (20 Op. Atty. Gen., 249.) The precise question on which advice is wanted must be stated. The omission to specify any particular points of law for an opin- ion would alone prevent the Attorney General acting on the case. (21 Op. Atty. Gen., 36; 19 Op. Atty. Gen., 396; 14 Op. Atty. Gen., 367, 368; 18 Op. Atty. Gen., 487.) It is inappropriate for the Attorney General to review certain briefs and correspondence submitted to him by the head of a department with request for an opinion thereon, as to do so would require him to consider questions of law which clearly have not arisen in the administra- tion of the department. (27 Op. Atty. Gen., 49.) It is permissible for the Attorney General to give an opinion only upon a case succinctly stated — that is, to answer specific questions of law arising upon facts set forth. (20 Op. Atty. Gen., 526; 19 Op. Atty. Gen., 396; 19 Op. Atty. Gen., 465; 18 Op. Atty. Gen., 487.) Where an official opinion of the Attorney Gen- eral is desired on questions of law arising in any case, the request should be accompanied with a statement of the precise questions on which advice is wanted. (21 Op. Atty. Gen., 506; 14 0p. Atty. Gen., 367.) When the opinion of the Attorney General is requested by the head of a department it is necessaiy that the question upon which the opinion is desired should be specifically pro- pounded. The Attorney General can not take the responsibility of examining all the papers in the case and gathering therefrom a conclusion as to what particular matters he shall pass upon. (22 Op. Atty. Gen., 498.) The Attorney General must express his regret that the request of his department, so often made, which requires that a request for an official opinion shall so formulate a precise question that it may be answered as a question of law, should have been disregarded. (26 Op. Atty. Gen., 579.) Should be accompanied by opinion of law oflicer of department making inquiry. — In a communication addressed by the Attorney General to the heads of ail the Executive De- partments under date of October 15, 1906, it was suggested "that Executive Departments having a law officer, for example, the Judge Advocate General of the Army or of the Navy, the Comptroller or Solicitor of the Treasmy, the Assistant Attorney General for a depart- ment, when desiring an opinion of the Attorney General, accompany the request therefor with the written opinion of such law officer; referring to all legislation or decisions or any ruUng, usage, or practice of the department, affecting the question; and with a brief statement of such reasons, for and against such opinion, as may occm- or be presented to him." (File 49-38; file 22724-16:1, Jan. 25, 1911; file 22991-1, Dec. 29, 1914.) "It does not appear from yom- letter that an opinion upon these questions by the law officer of your department has been obtained. * * * It seems to me that, before attempting to answer the questions submitted, I should have the benefit and assistance of such an opinion by the Judge Advocate General, or at least a memorandum by him 'referring to all legisla- tion or decisions or any ruling, usage, or prac- tice' of your department affecting these ques- tions. If, after such an opinion or memoran- dum has been prepared by that officer, you still desire my advice in the premises, I shall be pleased to respond to your request for my opinion upon the questions presented." (At- torney General to Secretary of the Navy, Jan. 25, 1911, file 22724-16:1; see also letter from Attorney General to Secretary of the Navy. Jan. 20, 1915, file 27223-12.)' [In the latter case, after obtaining the opinion of the Judge Advocate General, the Secretary of the Navy withdrew his request for the Attorney General's opinion, stating that he no longer entertained doubt upon the question presented. File 27223-12, Jan. 27, 1915.] "I beg leave respectfully to suggest that it would very much tend to facilitate my inquiries in references made from yom" department, and probably to promote the public interest, if these were accompanied by a statement show- ing the views of the department in relation to the several acte which are supposed to be involved in the inquiry, and the precedents, if any, which are to be found in its archives." (2 Op. Atty. Gen., 311, to the Secretarj-^ of the Navy.)_ "It is directed that all requests for opinions of the Attorney General be accompamed by the written opinion of the Judge Advocate Gen- eral or the solicitor, who will also prepare the request for the Attorney General's opinion in accordance with articles K-117 (1) and 134 (2), Navy Regulations, 1913." (Order Sec. Nav.. Jan. 15, 1915, file 22991-1 . See also file 20400- 200, Op. 13, Sept. 25, 1920. quoting letter from Atty. Gen. to Sec. Navv, Sept. 13, 1920, file 204625.) 309 Sec. 356. Pt.2. REVISED STATUTES. Justice Department. V. Weight of Opinions. Are conclusive on administrative oflB.- cez's. — The law inteiuls that the opinions of the Attorney General >shonl(l have authority. (20 Op. Atty. Gen., 388.) Congress evidently contemplated that the official opinions, signed or indorsed by the Attorney General, should have some actual and practical force. (See sec. 358, R. S.) Con- gress's intention can not be doubted tnat ad- ministrative ofiicers should regard them as law until withdrawn by the Attorney General or overruled by the com'ts, thus confirming the view which generally prevailed, though some- times hesitatingly expressed, previous to the establishment of the Department of Justice. (20 Op. Atty. Gen., 654, 659 quoted ^vith ap- proval in Smith v. Jackson, 241 Fed. Rep., 747; affirmed 246 U. S., 388; 20 Op. Attv. Gen., 719, 722.) The ruling of the Attorney General upon a Suestion submitted by the Secretary of the avy, although the validity of a disbursement was involved which had been otherwise de- cided by the Comptroller of the Treasury is binding upon the Department of Justice and upon other departments of the Government. (Attorney General to the Solicitor of the Treas- ury, Apr. 30, 1918, W. C. F. 191681-1 W. C. H., Navy Dept. file 26254-1451: 15, citing Smith v. Jackson, 246 U. S., 388, 241 Fed. Rep., 747, instructing the Solicitor not to institute suit against the officer making the payment although requested so to do by the Comptroller.) Of course the opinion of the Attorney General, when rendered in a proper case — as must be the presumption always from the fact that it is rendered — must be controlling and conclusive, establishing a rule for the guidance of other officers of the Government, and must not be treated as nugatory and ineffective. (25 Op. Atty. Gen., 301; citing 20 Op. Atty. Gen., 648, 5 Op. Atty. Gen., 97, 6 Op. Atty. Gen., 334. 7 Op. Atty. Gen., 699, 9 Op. Atty. Gen., 37.) If a question is presented to the Attorney General in accordance with law — that is, if it is submitted by the President or the head of a department — his opinion thereon is final and authoritative under the law, and should be so treated by the accounting officers, even if the question involves a payment to be made. Congress in establishing the office of the Comp- troller of the Treasury did not intend to shorten the reach of sections 354 and 356, Revised Stat- utes, as construed to give the opinions of the Attorney General controlling authority. (25 Op. Atty. Gen., 301.) For other cases, see below, "VI Jurisdic- tion Attorney General and Comptroller of the Treasury." Are generally followed in practice. — It is true the law does not say what effect shall be given to the opinions of the Attorney General, yet the general practice of the Government has been to follow it, and this for the reasons stated by Attorney General Cushing, viz, that an officer going against it "would be subject to the imputation of disregarding the law as officially pronounced," and that, without "the guidance of a single department of assumed special quali- fications and official authority," uniformity and stability in the application of the laws would be hardily atUunable. (20 Op. Atty. Gen., 383, citing 6 Op. Atty. Gen., 334.) In rendering opinions to the President and heads of departments, the action of the Attorney General is quasi judicial. His opinions offi- cially define the law in a multitude of cases, where his decision is in practice final and con- clusive. Accordingly, tne opinions of succes- sive Attorneys General, possessed of greater or less amount of legal acumen, acquirement, and experience, have come to constitute a body of legal precedents and exposition, having au- thority the same in kind if not the same in de- gree, with decisions of the courts of justice. Although the act requiring this duty of the Attorney General does not expressly declare what effect shall be given to his opinion, yet the general practice of the Government has been to follow it; partly for the reason suggested, that an officer going against it would be subject to the imputation of disregarding the law as offi- cially pronounced, and partly from the great advantage and almost necessity of acting ac- cording to uniform rules of law in the manage- ment of the public business; a result only at- tainable under the guidance of a single depart- ment of assumed special qualifications and offi- cial authority. (6 Op. Atty. Gen., 326, 334.) The law does not declare what effect shall be given to the advice and opinion of the Attorney General, but it is beUeved that the practice of the Government has invariably been to follow it. This has been done from the great advan- tage and almost absolute necessity of having uniform rules of decision for all questions of law in analogous cases, a result much more certain under the guidance and decision of a single department constituted for the very purpose of advising upon all questions and with supposed special qualifications for such a duty. In my opinion this practice should be considered as law. (5 Op. Atty. Gen., 97.) Have been held not conclusive. — It must be conceded that an opinion of the Attorney General is not conclusive ; that is, it is not com- pulsory on the President or even on the head of a department. It is inconvenient, however, to have a conflict of opinion between the Attorney General and a head of department; and that inconvenience is placed in the strongest light by the facts of this case, where the affirmative opinion of one Attorney General went disre- garded by one Secretary, and a negative opinion of another Attorney General, by the succeeding Secretary. There can be no more flagrant ex- ample of confusion of opinion and action. (7 Op. Atty. Gen. 691, 699.) Though opinions of the Attorney General have technically no binding effect, it is sug- gested that it is generally safer and better to adopt them. Uniformity of decision in the different departments on similar subjects is necessary and can not be secured otherwise. (9 Op. Atty. Gen., 33, 36.) While the Attorneys General have never claimed for their official opinions the force of law, it has always been regarded as the proper practice to follow their guidance. And Con- gress, while never legislating on this point, seems to contemplate that they are to be given practical effect. (20 Op. Atty. Gen., 648.) 310 Justice Department. Pt. 2. REVISED STATUTES. Sec. 356. Vie-w that opinions are advisory only. — The duty of the Attorney General is to advise, not to decide. A thing is not to be considered as done by the head of a department merely be- cause the Attorney General has advised him to do it. The heads of departments may disre- gard his opinion if sure it is wrong. The Attor- ney General aids them in forming a judgment on questions of law; but still the judgment is theirs, not his. They are not bound to see with his eyes, but only to use the light which he fur- nishes, in order to see the better with their own. (9 Op. Atty. Gen., 33, 36; see also 10 Op. Atty. Gen., 48.) By long and unbroken construction and prac- tice, it has been settled that the Attorney Gen- eral acts, in performing this legal duty, simply as the law adviser of the President and heads of departments. He is bound, upon points of law and facts stated by them, to give legal opinions in aid of their judgment, in matters for their decision. (11 Op. Atty. Gen., 4, quoting opinion of Oct. 23, 1863.) The opinion of the Attorney General is ad- visory only. The Attorney General has no con- trol over the action of the head of the depart- ment to whom the opinion is addressed, nor could he with propriety express any judgment concerning the disposition of the matter to which the opinion relates, that being something wholly within the administrative sphere and direction of such head of department. (17 Op. Atty. Gen., 332.) The Court of Claims, in holding that its find- ings and opinions are binding upon heads of departments in cases referred to it by the latter, pursuant to act of Congress, remarked that to hold otherwise, "would be construing the act as requiring a useless procedure; and that if it be contended that the report of the court is only ad\-i3ory, then the answer is that the Attorney- General is the law officer of the Government and under the Revised Statutes the head of any Executive Department may require his opinion on any questions of law arising in the adminis- tration of his department. " The conclusion of the court, as stated in the syllabus, was that "the findings and decisions of the court are not open to revision in the department. Legal opinions for the guidance of the head of a de- partment, not obligatory, are to be given by the Attorney General, pursuant to Revised Stat- utes, section 356, and not by the judiciary. " (Berger^^ U. S., 36 Ct. Cls., 243, 247.) In case of conflict, should be submitted to President. — A Secretary undoubtedly is entitled to have and to act upon his conscien- tious opinion of a question, even after he has taken the opinion of the Attorney General; but it would seem that any such conflict of opinion between the Secretary asking and the Attorney General giving official advice should be re- ferred at once to their common superior, the President, in order that the particular question of administration itself may receive the au- thoritative decision of the executive Govern- ment. (7 Op. Atty. Gen., 691, 699.) [In this case the Attorney General remarked that its history exhibits a spectacle of vacillation and contradiction of opinion on the part of the Gov- ernment which it is humiliating to contem- plate.] irnoflB.cial opinion. — An expression of opin- ion by the Attorney General on a question which it is not his official duty to answer would have no more weight than the opinions of any unofficial person. (20 Op. Atty. Gen., 383; 17 Op. Atty. Gen., 357; 20 Op. Atty. Gen., 667; 20 Op. Atty. Gen., 440; 2 Op. Atty. Gen., 531.) Obiter dicta. — Remarks in an opinion of the Attorney General which are merely obiter do not have the force and effect of an official opin- ion. (21 Op. Atty. Gen., 25.) VI. Jurisdiction, Attorney General and Comptroller of the Treasury. (A) In general. (B) Questions which should be asked comptroller. (C) When Attorney General icill render opinion. (D) Effect of Attorney General's opinion. (E) Views of Comptroller of the Treasury as to jurisdiction. A. In general. The Attorney General's office should not be allowed to become a refuge for doubt- ful claims from the more thorough and search- ing investigations of the accounting officers and the Court of Claims. The Attorney Gen- eral has no machinery to ascertain and test the trustworthiness of alleged facts. (11 Op. Attv. Gen., 4.) Opinions of Comptroller on questions of law.— Prior to the act of JulvSl, 1894, section 8 (28 Stat., 208), the Comptroller of the Treasury had no legal status as an adviser upon legal questions. He was an accounting officer hold- ing great power, but his function was to take action, not to advise others how to act. (20 Op. Atty. Gen., 654.) The act of July 31, 1894, makes it obligatory upon the Comptroller of the Treasury to make a decision upon any question involving a pay- ment to be made by or under the head of any executive department, and it contemplates the construction by him of statutes. (21 Op. Atty. Gen., 181.) In form the Comptroller is asked for legal ad- \dce; in fact, what is desired is information as to his future action. Even prior to the act of July 31, 1894, it was customary to ask his opinion on questions of law and this custom was a convenient and proper and even neces- sary one, within certain limits. The custom doubtless arose from the importance of knowing beforehand, when expenses were to be incurred, what the decision of the comptroller would be afterwards when the question of legality came up upon the settlement of the accounts. (20 Op. Atty. Gen., 654.) Where the Comptroller gives advice upon questions of law which are not anticipatory of future decisions by himself, such adA-ice is, of course, purely extraofficial. The advice thus given is doubtless intrinsically most valuable, but otherwise it differs in no way from advice on the same subject by any outsider. (20 Op. Atty. Gen., 654.) The view that the opinions of theComptroller, rendered to the head of a department upon legal questions, are purely extraofficial and 311 Sec. 356. Pi. 2. REVISED STATUTES. Justice Department. rendered by courtesy only, is no longer tenable in view of the act of July 31, 1894. section 8 (28 Stat., 208), which authorizes the Comptroller to render an advance decision upon ' 'any question involvini/ a payvi€7it." (22 Op. A(ty(icn., 581.) Whetlier a Navy regulation Iuuh binding force as law on the accountiug olliccrs of the Govern- ment, is a question of law and not one of ac- counting, and the Attorney-General will render an opinion thereon upon request of the Secre- tary of the Navy, although the Comptroller claims his jurisdiction to be conclusive and declines to concur in the submission to the Attorney General. (30 Op. Atty. Gen., 376, 171 S. and A. Memo., 3611; file 26254-1451:11, Apr.l3, 1915; 21 Comp.Dec, 554, 560.) Attorney General's jurisdiction not cur- tailed by powers given Comptroller. — ^Con- gress intended to confine the power of the Comptroller within a relatively narrow range and did not mean to curtail the occasions for the rendering of opinions by the Attorney Gen- eral or to diminish their scope and weight. The act of 1894 does not establish a rule which is universal and without exception under all circumstances. Congress did not by that en- actment intend to shorten the reach of sections 354 and 356, Revised Statutes, as construed to give the opinions of the Attorney General con- trolling authority ; or to repeal pro tan to [for so much] those sections. (25 Op. Atty. Gen., 301.) "Shortly after the act of July 31, 1894, was enacted, the question arose as to its effect upon the Attorney General's jurisdiction under sec- tion 356 of the Revised Statutes, and the rule was established by the Attorney General that he was not to render an opinion iipon questions which might be referr3d to the Comptroller of the Treasury except in cases of great impor- tance, or where the Comptroller of the Treasury concurred in the reference, but that in such cases he was authorized to render an opinion. In other words, that the jurisdiction of the At- torney General was not restricted by the act of 1894, but that the occasions for the exercise of such jurisdiction, in cases involving disburse- ments, would be infrequent in view of the latter act. The Comptroller of the Treasury fully concurred in the ruling that the Attorney General's jurisdiction continued under section 356 of the Revised Statutes even in cases covered by the act of 1894, and encouraged the Attorney General to exercise liis jurisdiction in such cases by frequently suggesting to heads of departments tliat they refer questions of law to the Attorney General for opinion. * * * The Comptroller of the Treasury has thus uni- formly recognized the superior facilities of the Department of Justice to decide important questions of law, even where disbursements are involved; while on the other hand the Attorney General has repeatedly recognized the superior qualifications of the Comptroller of the Treasury to decide certain classes of questions which in- volve the use of appropriations and technical questions of accounting." (File 26254-1451:11, Apr. 12, 1915.) Question one of etiquette. — There is, of course, in this matter a large element of pro- priety and etiquette, which has led Attorneys General to decline to pass upon many ques- tions, however important in their essential and abstract bearings, because payments are also involved. (25 Op. Atty. Gen., 301.) Reference to Comptroller not re- qmred. — The law permits, but does not re- quire the reference of any question involving a payment to the Comptroller of the Treasury; and it is thus suggested that, whatever the final action of the auditor and Comptroller may be upon the account, the reference of every ques- tion to the Comptroller for decision is not de- manded by the law simply because such a question may ultimately reach the accounting stage. (26 Op. Atty. Gen., 81.) B. Qiiestions which should be asked the Comp- troller. Except in matters of great importance, or where the question is a general one, applicable to all the departments, the opin- ion of the Attorney General should no longer be asked upon questions which the Comptroller of the Treasury was authorized to decide upon request of the head of any department, by the actofJuly31, 1894; they arequestionswhich the Comptroller, by his greater experience is better qualified to pass upon, and it is desirable to avoid any possible conflict of precedents. An opinion of the Comptroller of the Treasury forms a complete protection. (21 Op. Atty, Gen., 178; 21 Op. Atty. Gen., 181; 26 Op. Atty. Gen., 81.) Upon questions of the disbursement of money and payment of claims, which have been relegated by law to the Comptroller of the Treasury, the Attorney General should not render opinions, especially in view of the fact that if the matter is doubtful it can be referred to the Court of Claims for authoritative decision. (21 Op. Atty. Gen., 530.) Except in matters of great importance, the Attorney General will not express an opinion upon any question involving a payment to be made by or under the head of an executive de- partment. That duty under the law is imposed upon the Comptroller of the Treasury, whose opinion is binding and conclusive. (23 Op. Atty. Gen., 1.) The authority of the Comptroller is com- plete to decide a question involving a payment to be made from the Treasury, so as to govern the auditing officers and himself in passing upon accounts. Accordingly, in various in- stances the Attorneys General have declined to give an opinion upon a question of this nature. (25 Op. Atty. Gen., 301; citing 21 Op. Atty. Gen., 178, 530; 22 Op. Atty. Gen., 581; 23 Op. Atty. Gen., 468; 24 Op. Atty. Gen., 553. See also 26 Op. Ally. Gen., 609.) To which of two appropriations certain expenses should be charged is a question which may be asked of the Comptroller of the Treasury. It belongs to a class of questions which require for their decision a superior knowledge of our appropriation acts and the course of decisions thereunder. They are questions which the Comptroller, by his great experience, is better qualified to pass upon, and it is desirable to avoid any possible conflict of precedents. Therefore it seems inadvisable for the Attorney General to attempt to pass upon these inquiries. (21 Op. Atty. Gen., 405. 312 Justice Department. Pt. 2. REVISED STATUTES. Sec. 356. [Later the Attorney General rendered an opin- ion on this question, it appearing that it did not belong to the Comptroller of the Treasiuy. Question concerned appropriation for public printing. (21 Op. Atty. Gen., 423.)] Specific questions which Attorney Gen- eral has declined to answer. — \Miether cer- tain expenses of Department of Agriculture are payable from a certain appropriation for that department. (21 Op. Atty. Gen., 221.) Use of appropriation by Secretary of War for "transportation of the Army and its supplies." (22 Op. Atty. Gen., 665.) \^Tiether expense of preparing certain blank forms and furnishing them to collectors can be paid out of appropriation for defraying the ex- penses of collecting the revenue from customs. (25 0p.Atty. Gen.,50.) Allowance of extra compensation, in lieu of annual leave, to certain former employees of Census Office; which question, in its ultimate effect, relates solely to payments out of the Treasury. (24 Op. Atty. Gen., 85.) WTiether a retired officer advanced in rank and pay by the Executive, may be paid at the advanced rate before the Senate has consented to the advancement; which question had al- ready been decided by the Comptroller of the Treasury. (25 Op. Atty. Gen. ,185.) Questions of disbursement of money or pay- ment of claims. (22 Op. Atty. Gen., 581.) Question involved in and arising out of a claim for payment of money which is pending before the Treasury Department. (23 Op. Atty. Gen., 2.) Claim for payment of a sum of money by the War Department, as compensation for the can- cellation of a contract. (23 Op. Atty. Gen., 86.) Payment for rent of a letter box in a post office for use of an Army officer; where comptroller decided that the rent could not be paid in advance, and the Postmaster General decided that such boxes can not be rented to an officer of the Government unless payment is made before they are used. The Comptroller has passed upon the precise question submitted; he does not request any review of that decision ; and the question is not one of sufficient im- portance to bring it within the class of cases which, while concernuig disbursements of money, nevertheless by reason of their great importance or general character have been held to warrant an expression of opinion by the Attorney General. (25 Op. Atty. Gen., 614; 25 Op. Atty. Gen., 185. But see below "Where Comptroller does not join in request.") WTiether, under the annual appropriation for the care of patients in a designated hospital, the Surgeon General, United States Army, may contract with the institution to pay a stipulated sum per month for keeping in a state of preparedness for a specified number of pa- tients; there not being in every month an aver- age of that number of patients in the hospital, but where the monthly average per year equals or exceeds that number. The Attorney Gen- eral deems it inexpedient to give an opinion upon this question, which is clearly proper for the Comptroller to decide. (26 Op. Atty. Gen., 431.) Authority to refund duties and appropriation to which chargeable; especially where such questions have already been decided by the Comptroller of the Treasury. (23 Op. Atty. Gen., 468; affirmed 23 Op. Atty. Gen., 586; 24 Op. Atty. Gen., 553; cited 25 Op. Atty. Gen., 50.) Manner of drawing funds from the Treasury, and the administrative examination of accounts of officers disbursing them. (22 Op. Atty. Gen., 414.) Questions which involve the payment of money by the Treasurv Department. (23 Op. Atty. Gen., 431.) Question involving the pay to which an officer of the Navy is entitled under certain conditions, where this question has been de- cided by the Comptroller, who does not concur in its reference to the Attorney General, and the question is not of sufficient importance to justify a departiu-e from the general rule. (28 Op. Atty. Gen., 129.) C. When Attorney General will render an opinion. Questions of general and great impor- tance, where Comptroller concurs in re- quest. — \Mien the question is of general and great importance, and especially when the Comptroller, in advance of decision by himself, requests or suggests that the matter be referred to the Attorney General, and states that the opinion of the Attorney General will be fol- lowed by him, the question may properly be an- swered by the Attorney General, although a disbursement may be involved. (25 Op. Atty. Gen., 301, citing 21 Op. Atty. Gen., 181, 224, 402.) If the Attorney General considers the question presented one of great importance in other direc- tions than disbursements, and especially when the Comptroller suggests an examination of the matter by him, an opinion on his part will be proper and the decision final and authoritative. (25 Op. Atty. Gen., 601.) Generally speaicing, the decision of the Comp- troller of the Treasury is conclusive in cases in- volving the application of an appropriation and the expenditure of public moneys. However, when the disbursement is a question of general and great importance, and especially when the comptroller, in advance of a decision by him- self, requests that the matter be refeiTed to the Attorney General for opinion, and states that he will be gtiided by such opinion, the question may properly be answered by the Attorney General. (26 Op. Atty. Gen., 609.) WTiere the Comptroller of the Treasury states that the opinion of the Attorney General will be followed by him, the Attorney General will comply with the request of the head of a depart- ment for his opinion in the premises, the qties- tion being one of importance, and the Comp- troller thus joining in asking that it be answered. (21 Op. Atty. Gen., 224. But see 21 Op. Atty. Gen., 251, and 21 Op. Atty. Gen., 320, where opinions upon similar questions were rendered, although it did not appear that the Comptroller joined in the reference.) A question which was referred to the Comp- troller of the Treasurj^ and at his request re- ferred to the Attorney General, was answered by the latter because it was an important one. (21 Op. Atty. Gen., 402.) 313 Sec. 356. Pt. 2. REVISED STATUTES. Justice Department. With reference to the question of pay of cer- tain Navy oflicers on promotion, which was pending before the Comptroller of the Treasury, the Secretary of the Treasury reqtiested the oj)inion of the Attorney General upon certain questions proposed by the Comptroller of the Treasury, and transmitted with the Secretary's note. An opinion was rendered upon such questions for the guidance of the Comptroller. (2;U)p. Atty. Gen..30.) With reference to the question whether the accounting officers of the Treasury may legally allow claims for transportation upon requests fraudulently issued by an officer of the Army, which question was submitted to the Attorney General by indorsement of the Secretary of the Treasury on a letter of the Comptroller of the Treastiry, the Attorney General rendered an opinionto the Secretary. (23 Op. Atty. Gen., 161.) The Secretary of War, in accordance with the sxiggestion of the Comptroller of the Treasury, reqtiested and received an opinion of the Attor- ney General as to use of an appropriation for in- stallation of range and position finders in Porto Rico. (23 Op. Atty. Gen., 390.) Concerning the pay of retired officers of the Army, the Attorney General rendered an opin- ion to the Secretary of War, remarking: "The Comptroller of the Treasury requests or concurs in the reference of the question to me, and it is proper, therefore, that I should respond." (25 Op. Atty. Gen., 299.) The Secretary of the Navy, with the concur- rence of the Comptroller of the Treasury, re- qxiested an opinion which was rendered by the Attorney General, concerning the pay of a cer- tain retired mate in the Navy. (26 Op. Atty. Gen., 599; file 3031-34.) The Attorney General refrains from rendering an opinion upon a qxiestion submitted to him by the Secretary of the Treasury, for the reason that the question can be asked of the Comptrol- ler of the Treasury. (21 Op. Atty. Gen., 188.) Opinion rendered later by the Attorney General upon same question, the Comptroller joining in the request and the question being of impor- tance. (21 Op. Atty. Gen., 224.) Where Comptroller does not join in re- quest. — Unless the Comptroller joins in the request, the Attorney General has hesitated to express an opinion even as to questions of great importance, or of general application to all departments. (26 Op. Atty. Gen., 81, citing 21 Op. Atty. Gen., 181.) However, where the question is general in its bearings, and of great importance, the Attorney General may prop- erly express an opinion notwithstanding the statutory authority of the Comptroller of the Treasury, and notwithstamling the fact that the question comes to him in the first instance and not after reference to the Comptroller and by his request. (26 Op. Atty. Gen., 81, re use of ap- propriation under the Secretary of War for the erection of marine barracks at the Canal Zone. See also 24 Op. Atty. Gen., 699; 25 Op. Atty. Gen., 127.) Upon request of the Secretary of the Navy the Attorney General re-viewed several deci- sions rendered by the Comptroller of the Treas- ury concerning the leave pay of officers of the construction corps, professors of mathematics, and civil engineers. No reference was made in the opinion to the question of jurisdiction. (27 Op. Atty. Gen. , 261 . ) [Before referring this question to the Attorney General, the Navy Department suggested to the Comptroller that the matter be submitted to the Attorney Gen- eral for opinion, in order thereby to obviate delay and expense, both to the Government and the officers concerned, that would result from the placing of the matter before the Court of Claims for decision. In response the Comp- troller stated that he preferred that the Navy Department use its own judgment relative to the submission of the legal question involved to the Attorney General, and that the Attorney General determine, without suggestion from him, whether he would entertain such submis- sion; but added that, if the question were sub- mitted and the Attorney General rendered an opinion thereon, such opinion would be treated with that respect due to the opinion of the chief legal adviser of the Government. This state- ment of the Comptroller's attitude was commu- nicated to the Attorney General in the Navy Department's request for opinion. (File 262,54-1.55:e, Dec. 15, 1908.) The Attorney General, in the opinion cited, dissented from the decision of the Comptroller of the Treasury upon the questions presented, and concurred in the views of the Navy Department thereon. The Comptroller of the Treasury thereupon re- opened and reversed his former decision, and followed the opinion of the Attorney General. (Comp. Dec, Apr. 16, 1909, 98 S. & A. Memo., 1036.)] Upon request of the Secretary of the Navy the Attorney General reviewed and reversed several decisions of the Comptroller of the Treasury concerning the legality of a Navy regulation, although the Comptroller declined to concur in a reference of the matter to the Attorney General, holding that his decisions were final and conclusive upon the executive branch of the Government. (Op. Atty. Gen., May 19, 1915, 171 S. & A. Memo., 3611; 21 Comp. Dec, 554, 357, 245; file 26254-1451:11.) Upon request of the Secretary of the Navy the Attorney General reviewed the decision of the Comptroller of the Treasury that the des- ignation of a Navy mail clerk was not valid, and held that said decision of the Comptroller was extraofficial and that the mail clerk in question had been validly designated as such. (31 Op. Atty. Gen., 320. "See also 32 Op. Atty. Gen., 427 reviewing and dissenting from 26 Comp. Dec, 3,36.) The Comptroller of the Treasury held that the cost of transporting certain destitute seamen to this country was a proper charge against the Government (14 Comp. Dec, 867), and sug- gested that the Attorney General's opinion be requested as to whether the owners of the vessel to wliich such seamen belonged should refund to the Government the amount so expended. This latter question was referred to the Attorney- General with request for his opinion upon that specific question. However, the Attorney-Gen- eral, in his opinion, considered the whole sub- ject, and held, among other things, that "the cost of transportation furnished by the Govern- ment is a proper charge against the appropria- 314 Justice Department. Ft. 2. REVISED STATUTES. Sec. 356. tion for ' relief and protection of American Bea- men in foreign countries,' " wliich question had already been decided by the Comptroller. (26 Op. Atty. Gen. , 631. In this connection see 29 Op. Atty. Gen., 54.) In the case of a retired officer of the Navy, the Comptroller of the Treasury held that under the the law and facts of the case he was entitled to the rank and retii-ed pay of the next higher grade. (14 Comp. Dec, 167.) In the case of another retired officer, invohing precisely the same question, the Na^^ Department requested an opinion of the Attorney General, who held that the officer in question was not entitled to the rank and retii-ed pay of the next higher grade, expressly dissenting from the Comp- troller's decision above cited and concurring in the opinion of the Navy Department. [This question was referred to the Attorney General by the Secretary of the Navy without the sug- gestion or concmrence of the Comptroller.] (27 Op. Atty. Gen., 221.) The Comptroller of the Treasury reopened and reversed his former deci- sion and followed the opinion of the Attorney General. (15 Comp. Dec, 584.) Where the Comptroller has passed upon the precise question submitted ancf does not request any review of his decision, the Attorney General will not render an opinion where the matter, in his judgment, is not one of sufficient impor- tance to bring it witMn the class of cases which, while concerning disbm-sements of money, nev- ertheless, by reason of their great importance or general character, have been held to wai-rant an expression of opinion by the Attorney General. (25 Op. Atty, Gen., 614.) In such a case, be- fore rendering an opinion, the Attorney General requires a presentation of the reasons of the head of the department for ref en'ing the matter to him and not accepting the opinion of the Comp- troller. (26 Op. Atty. Gen., 609.) In no case, so far as I am advised, has the Attorney General undertaken to review a mat- ter which has been before the Comptroller with- out being advised that it would be entirely agreeable to the latter to do so. (28 Op. Atty. Gen., 129. But see cases noted above.) Where the Comptroller of the Treasury has decided the question (pay of a retired officer of the Army, advanced in rank by the Executive), his decision is conclusive, and the question will not be answered by the Attorney General. It is true that an exception has been noted in the opinions of the Attorneys General, where a ques- tion is of great importance and general applica- tion and a confUct of precedents might ensue, and especially where the Comptroller joins in the request and states that he will be guided by the opinion of the Attorney General. But here the Comptroller has already acted and has ren- dered his decision upon the reference to him of the real question involved in its practical aspect, and this decision under the law must govern him in determining the matter when- ever it is presented to him in his function of passing upon accounts, unless, indeed, he him- self should see fit to reconsider and revise or reverse his ruling. (25 Op. Atty. Gen., 185. But see cases noted above.) Questions which have been held of gen- eral and great importance. — Upon a ques- tion relating to the purchase of envelopes by 54641°— 22 21 executive departments in cases of public exigency, it appeared from papers transmitted to the Attorney General that the Comptroller of the Treasury stated: "As the question in the form presented is a general one, appUcable to all the departments, it is respectfully sug- gested that it would be expedient to have the matter determined by an opinion from the Attorney General. " Accordingly the Attorney General rendered an opinion upon the ques- tion, sajdng: "This case falls within the excep- tion stated in my previous opinion (21 Op. Atty. Gen., 178) concerning matters of great importance, and I therefore, without departing from the precedent therein established, com- ply with your request." (21 Op. Atty. Gen., 181.) Availability of appropriation. — Respecting the availability for census purposes of the unexpended balance of a previous appropria- tion, the Attorney General rendered an opinion to the Secretary of the Interior, stating: "This question might have been presented to the Comptroller of the Treasmy, under the act of July 31, 1894, section 8. * * * Upon the passage of that act this department assumed the position, which it has ever since main- tained, that except in matters of great im- portance, questions of the character referred to therein should be submitted to the Comptroller, whose opinion is binding and conclusive and affords complete protection. (21 Op. Atty. Gen., 178, 188, 530; 22 Op. Atty. Gen., 413, 581; 23 Op. Atty. Gen., 1, 2, 86, 431, 468, 586; 24 Op. Atty. Gen., 85.) The present question, however, is administrative in its nature and of sufficient importance to come within the excep- tion stated . Its gravity is more than commen- surate with that of the question considered by Mr. Olney (who fu'st announced the rule referred to) in his opinion of May 23, 1895 (21 Op. AttJ^ Gen., 181), and wliich related to the power of the several executive departments to purchase envelopes in cases of public exi- gency. Upon the availability of the balance referred to by the proviso in the act of March 3, 1903, as the letter of the director indicates, depends the execution of a great deal of census work now in progress or contemplation, and the retention or discharge of a considerable portion of his present force." (24 Op. Atty. Gen., 699.) Fay of employees in Fhilippines. — Concerning compensation on holidays of navy yard em- ployees in the Philippine Islands, the Attorney General rendered an opinion to the Secretary of the Navy, stating: "This question might have been submitted to the Comptroller of the Treasury', but in view of the importance of determining whether or not such statutes apply in the Philippine Islands, I shaU endeavor to answer it." (25 Op. Atty. Gen., 127.) Validity of Navy regulation. — In rendering an opinion requested by the Secretary of the Treasury at tlie suggestion of the Comptroller, concerning refund of bounty required of enlisted men of the Navy discharged within a year after enlistment, for disabiUty noc incurred in the Une of duty, the Attorney General said: "I should hesitate to render you my opinion upon this subject, in view of the well-estab- lished rule holding the opinions of the Comp- 315 Sec. 366. Pt. 2. REVISED STATUTES. Justice Department. troller of tlie Treaaurj', upon a quoslion involv- ing the payment of money by any executive department of the Government to l)e final and conclusive, were it not for tlie fact that the present ca.ie is unusually important, since it involves the validity of the regulations issued by the head of an executive depart- ment and therefore appears to fall ^vithin the exception to tliat rule recognized l)y the Attorney General wlion he is duly asked for his opinion before the Comptroller has passed upon the question, and the Comptroller himself joins in the request." (25 Op. Atty. CJen., 271; BcealsoOp. Atty. Gen., May 19, 1915, 171 S. & A. Memo., ;>611, reviewing and reversing decisions of the Comptroller of the Treasury as to the val- idity of a Isavy regulation, although the Comp- troller declined to concur with the Secretary of the Navy in the submission of the question to the Attorney General.) Use of appro priution for construction of marine barracks at the Canal Zone is a question of general and great importance, upon which the Attorney General will render an opinion notwitlistanding the fact that the question comes to him in the first instance and not after reference to the comptroller and by his re- quest. (26 Op. Atty. Gen., 81.) Where opirLion is requested by the Presi- dent. — Upon instructions to him by the Presi- dent, the Attorney General reviewed two deci- sions rendered by the Comptroller of the Treas- iiry concerning expenditures from appropria- tions for the Agricultural Department, and submitted his opinion to the President upon the questions of law discussed therein. (26 Op. Atty. Gen., 269.) Upon reference to him by the President, the Attorney General rendered an opinion upon a question raised by a decision of the Comptroller of the Treasury as to authority of the Secretary of the Treasury to purchase land from the State of Texas for a life-saving station and to pay the consideration fixed therefor (29 Op. Atty. Gen., 48); and later, in the same case, the Attorney General addressed a supplementary opinion to the President as to the appropriation available for payment for the land so acquired. (29 Op. Atty. Gen., 51.) Opinion rendered to the President concern- ing his authority to allot funds appropriated by Congress for the purpose of equipping and building schoolhouses in the island of Porto Rico. (23 Op. Atty. Gen., 329.) That Commissioner of Labor could be ap- pointed a member of the immigration comnus- sion and receive compensation for his services on that commission, in addition to the salary attached to his office as Commissioner of Labor. (26 Op. Atty. Gen., 247.) Authority to grant leave of absence with pay to members of the Grand Army of the Republic in Government service who attend annual en- campment of that order. (26 Op. Atty. Gen., 336.) That a retired officer of the Revenue-Cutter Service could be employed to superintend the construction of life-sa\dng apparatus for such period as his services might be required, at a rate of compensation to be fixed by the Secre- tary of the Treasury. (26 Op. Atty. Gen., 460.) Use of appropriations to pay contractors for material to be used in constructing a public building. (26 Op. Atty. Gen., 572.) That the Secretary of the Navy has no power, after exhausting an appropriation for the erec- tion of a dry dock, to use funds from other appropriations not strictly applicable to that work in order to meet the payments to be made on the contract until a deficiency appro- priation should be made. (28 Op. Atty. Gen., 466.) Specific questions answered by the At- torney General without reference to Comptroller's jurisdiction. — in the follow- ing specific cases the Attorney General ren- dered opinions without making any reference to the question of jiu^isdiction: Payment of damages. — That the Secretary of War is authorized to pay $15,000, as recom- mended by a commission and the Chief of En- gineers, for raising the height of the dam at Great Falls and for damages on account of the flooding of land and other damages. (21 Op. Atty. Gen., 223.) Use of appropriation for reimbursement of militia for stores taken in war with Spain. (22 Op. Atty. Gen., 372.) Use of approi^riation by Secretary of War for Eayment of compensation to parties after a reach of contract by the Secretary. (22 Op. Atty. Gen., 437.) Payment of money to contractors for damages sustained by delay. (23 Op. Atty. Gen., 106.) Use of appropriations. — Concerning the use of an apjiropriation for expenses of the Agricul- tural Department. (21 Op. Attv. Gen., 321; 21 Op. Atty. Gen., 372; 22 Op. Atty. Gen., 470.) Use of appropriations, and to what appropri- ation certain expenses are chargeable. (21 Op. Atty. Gen., 414.) Construction of an appropriation; whether language mandatory or directory. (22 Op. Atty. Gen., 295.) Expenditure of $3,000,000 appropriation for emergencies arising in military administration of Cuba. (22 Op. Atty. Gen., 301.) Use of appropriation for rivers and harbors. (22 Op. Atty. Gen., 489; 22 Op. Attv. Gen., 519; 25 Op. Atty. Gen., 145; 29 Op. Atty. Gen., 173.) Use of an appropriation under the Secretary of State and its availability for paying expenses or compensation of counsel for the delegation to the Pan-American conference. Question was, first, as to legality of appointing counsel; and second, as to question of pay. (23 Op. Atty. Gen., 533.) Ojiinion to Secretary of State which "relates wholly to the legality of the expenditures recommended" — that is, certain expenditures out of an a])propriation made in connection with the Panama Canal project. (25 Op. Atty. Gen., 54.) Advised Secretary of War that he was au- thorized to enter into a contract for the payment of royalty on account of the construction of cer- tain guns, carriages, etc., payable out of appro- priations "for the armament of fortifications and for other purposes;" notwithstanding the fact that the fulfillment of such contract might extend over a period of more than two years. (25 Op. Atty. Glen., 105.) That appropriation for purchase of land may properly be expended for the purchase of a 316 Justice Department. Pt. 2. REVISED STATUTES. Sec. 356. lease in perpetuity to said land. (26 Op. Atty. Gen., 12.) That Secretary of the Treasury is authorized to acquire a certain site and erect a public building thereon, at total cost of §125,000; that the Secretary is not limited as to the cost of the Bite, but a sufficient amount should be reserved to properly erect the building. (26 Op. Atty. Gen., 20.) . Opinion to Secretary of the Navy in answer to following questions: (1) ^\^lether, upon the facts presented, the Navy Department is au- thorized to expend any portion of the moneys appropriated by the acts in question for the construction or purchase of a submarine boat or boats of the Lake type; (2) whether under the facts as stated the Secretary of the Navy is authorized to expend any portion of the appro- priations referred to, for the purchase of sub- surface boats of the type subjected to trial, as above set forth. (26 Op. Atty. Gen., 321.) Appropriation available for payment of ex- pense of maintenance and treatment of an in- mate of the National Soldiers' Home who is transferred to the Government Hospital for the Insane. (26 Op. Atty. Gen., 512.) That Secretary of the Navy has authority to acquire and pay for the right to manufacture and install patented forms of turbine machinery on board a ship under construction, and this authority extends to the license fee, royalties, and preparation of drawings. (27 Op. Atty. Gen., 173.) Use of appropriation to defray expenses of a board under the Secretary of War. (27 Op. Atty. Gen., 459.) Use of Naval Hospital fund to supplement appropriation for construction of hospital at Norfolk, A'a. (27 Op. A,tty. Gen., 30.) That moneys appropriated for the mainte- nance of the Bureau of Mines may be used for erection of certain temporary structures. (28 Op. Atty. Gen., 413.) Use of appropriation for construction of bat- tleship, where not sufficient for completion of the vessel. (28 Op. Atty. Gen., 477.) Use of naval appropriation for purchases from combinations or monopolies. (29 Op. Atty. Gen., 14, 35, 44.) That in absence of statutory prohibition, partial payments may be made on account of work done in construction of vessels for the Navy. (29 Op. Atty. Gen., 46.) Use of appropriation under Secretary of War for purchase and partial construction of canal and locks, where not sufficient for total cost. (29 Op. Atty. Gen., 236.) Use of appropriation by the Secretary of the Treasury for rental of building in District of Columbia and construction of vault. (27 Op. Atty. Gen., 270.) Pay of Army, Navy, etc. — Stoppage of pay against the account of soldier in Army. (21 Op. Atty. Gen., 323.) That the Secretary of the Navy is authorized to employ a retired officer to supervise the com- pletion of certain tables of planets, at a com- pensation of $2,500 per annum. (21 Op. Atty. Gen.. 507.) Concerning extra pay of Army officers. (22 Op. Atty. Gen., 95.) That a proposed regulation of the State De- partment, A\dth reference to the compensation of consular agents, being consistent %vith law, may be carried into effect. (22 Op. Attv. Gen. , 16.30 Extra compensation of a United States judge appointed as a commissioner under a conven- tion with Great Britain. (22 Op. Atty. Gen., 184.) Increased pav and allowances of Army offi- cers. (22 Op. Atty. Gen., 2.58.) Compensation of per diem employees at Washington navy yard for half day when yard was closed on account of ceremonies attending the interment of the bodies of soldiers and sailors whose lives were lost in the war with Spain. (22 Op. Atty. Gen.. 472.) Date from which officer of Navy" is entitled to rank and pav of higher grade on promotion. (22 Op. Atty. Gen., 657.) Rank and pay of retired officers of the Marine Corps having Civil War service. (24 Op. Atty. Gen., 709.) Pay of a retired officer of the Navy. "He now claims that he is entitled to the additional pay pro\'ided in the proAdsion before quoted, and your question is in substance whether he is so entitled. * * * I am, therefore, of opinion * * * that he is entitled to the increased pay provided for in said act." (26 Op. Atty. Gen., 57.) That the salary of a clerk in a pension agency might legally be paid, and need not be with- held by the Secretary of the Interior because of his indebtedness to the United States; and that section 1766, Revised Statutes, is not appli- cable to such clerk. (26 Op. Atty. Gen., 77.) That the salary of a naval officer appointed during a recess of the Senate can not be paid until confirmed by the Senate, where the va- cancy existed while the Senate was in session. (26 Op. Atty. Gen.. 2.34.) Rank and pay of retired officers of the Navy having Civil War service. (27 Op. Attv. Gen., 221.) Compensation of certain officers employed under the Department of Agriculture. (27 Op. Atty. Gen., 358.) Payment of compensation and expenses of board on life-saving appliances. (27 Op. Atty. Gen., 406.) Compensation and expenses of a committee under the Secretary of War. (27 Op. Atty. Gen., 432, 437.) Leave of absence of per diem employees under the Secretary of War. (27 Op. Atty. Gen., 613.) Payment of compensation to expert witness employed by the Government in cases arising under the food and drugs act. (28 Op. Atty. Gen., 75.) Leave of absence to certain employees under the War Department. (28 Op. Attv. Gen., 339.) Pay of chief of bureau, Navy Department, after resignation or removal from office. (28 Op. Atty. Gen., 429.) Rank and pay of naval officers serving as bureau chiefs. (28 Op. Atty. Gen., 531.) Payment of miscellaneous claims. — Claim for arrears in pension. (21 Op. Atty. Gen., 408; 21 Op. Atty. Gen., 453.) 317 Sec. 356. Pt. ,i. REVISED STATUTES. Justice Department. That unexpondod balance of an a])propria- tion should be used to reimburse a claimant against the United States. (21 Op. Atty. Gen., 523.) Claims of officers and men in the Navy for payment of prize money. (22 Op. Atty. Gen., 17i.) Leirality of bills submitted to the Secretary of ^\'ar for State tolls on property of the United States passing to or over the wharves at San Francisco. (23 Op. Atty. Gen., 299.) Whether Navy Department may rightfully withhold its apjiroval of vouchers providing for 1)ayinent of a bill j)resented to that department )y the Carnegie Steel Co. until decision of a suit pending in the Court of Claims. (23 Op. Attv. Gen., 422; affirmed 23 Op. Atty. Gen., 495!) Authority of Secretary of the Treasury to pay claim of a municipal corporation for reim- bursement on account of burial expenses of a pensioner from accrued pension. (23 Op. Atty. Gen.. 428.) \'alidity of claim made for rent of a building occupied as a post office. (23 Op. Atty. Gen., 571.) Authority of Secretary of the Treasury to allow claim for compensation as informer. Held that the Treasury Department is author- ized to award compensation in the case sub- mitted. (24 Op. Atty. Gen., 61.) Use of an appropriation for payment of attor- neys' claims for fees on account of services rendered to Indians. (24 Op. Atty. Gen., 624; 25 Op. Atty. Gen., 308; 25 Op. Atty. Gen., 320.) Distribution of fund appropriated for the payment of the so-called "loyal Creek claims" in cases of deceased claimants. (25 Op. Atty. Gen., 163.) Payment of claim of Government employee for compensation on account of disability sus- tained in the course of his employment. (27 Op. Atty. Gen., 346.) Settlement of claim on Secretary of the Treasury, made by an officer of the Government for an award for detecting fraudulent weighing of sugars. (28 Op. Atty. Gen., 329.) Use of appropriations for payment of claims of a wrecking company in connection with the removal of an obstruction to navigation. (28 Op. Atty. Gen., 626, 633.) ^liether the claim of a wrecking company against the Government for services in removing an obstruction to navigation, which claim was pending before the War Department, could be paid. Answered in the affirmative, but held that interest could not be paid. (29 Op. Atty. Gen., 277.) Payment of claim for compensation on account of a fatal accident to a laborer employed by the United States. (29 Op. Atty. Gen., 415.) Refund of duties, taxes, etc. — Authority of Secretary of the Treasury to refund duties out of an appropriation for that purpose. (23 (Jp. Attv. Gen.. 442; 21 Op. Atty. Gen., 454. Claims for refund of taxes. 26 Op. Atty. Gen., 472.) Payment of claims for refund of moneys col- lecteli by the United States for taxes. Ques- tion submitted by the Secretary of the Treasury, "is there any legal objection to now paying that part of the claim of * * * which comes under the decision of the Supreme Court in the * * * case, allowing the balance to remain in the Treasury pending the decision of the court in the * * * case?" Answered in the negative. (26 Op. Atty. Gen., 194.) Miscellanpous . — -Making of final paj'ment to a contractor by the Secretary of War under a cer- tain contract. (22 Op. Atty. Gen., 465.) Payment from the naval pension fund to personal representatives of a deceased bene- ficiary or to the Naval Home. (25 Op. Atty. Gen., 85.) Authority of Director of the Mint, with aj)proval of the Secretary of the Treasury, to purchase bullion for subsidiary coinage without limitation. (25 Op. Atty. Gen., 170.) (D) Effect of Attorney Generals opinion. Binding on Comptroller. — Without touch- ing upon the question whether a Comptroller of the Treasury may delegate his authority, when he waives his right to determine a matter in- volving disbursements, within the scope of his authority under the law and regulations, or suggests a ruling by the Attorney General, there is no doubt that the Attorney General's opinion should not only be justly persuasive to the accounting officers, but should be con- trolling; and should be followed by them unless contrary to some authoritative judicial decision which puts the matter at rest. It is always to be assumed that the Attorney General would not overlook or ignore such a decision in announcing his own conclusion. (25 Op. Atty. Gen., 301.) Of course the opinion of the Attorney General when rendered in a proper case — as must be the presumption always from the fact that it is rendered — ^^must be controlling and conclusi^=e, establishing a rule for the guidance of other officers of the Government, and must not be treated as nugatory and ineffective. (25 Op. Attv. Gen., 301, citing 20 Op. Atty. Gen., 648; 9 Op. Atty. Gen., 37, 7 Up. Atty. Gen., 699, 6 Op. Atty. Gen., 334, 5 Op. Atty. Gen., 97.) Where the question is general and important in other directions than disbursements, and is presented to the Attorney General in accord- ance Avith law — that is, if it is submitted by the President or the head of a department; if it is a question of law and actually arises in the administration of a department; and the At- torney General conceives that it is proper for him to deliver his opinion, it is final and authoritative under the law, and should be so treated by the accounting officers, even if the question involves a payment to be made. (25 Op. Atty. Gen., 301.) If the Attorney General considers the ques- tion presented one of great importance in other directions than disbursements, and especially when the Comptroller suggests an examination of the matter by him, an oi)inion on liis part will be proper and the decision final and authoritative. (25 Op. Atty. Gen., 601.) W^here an opinion was rendered by the At- torney General upon a question which was after- wards considered and otherwise decided by the Comptroller of the Treasury, it was held by the Supreme Court that any doubt which the Au- ditor might have had should have been sub- 318 Justice Department. Pt. 2. REVISED STATUTES. Sec. 356. ordinated to the ruling of the Attorney General; affii-ming the decision of the lower court in which there was quo Led with approval the At- torney General's opinion of September 8, 1893, to the Secretary of the Treasury (20 Op. Atty. Gen. 659), digested above under "V. Weight of Opinions" (Smiths. Jackson, 246 U. S., 388, 241 Fed. Rep., 747; C. M. O. 50, 1918, p. 20.) (E) Views of Comptroller of the Treasury as to jurisdiction. Test is whether main question involved, is one of payment. — The question was sub- mitted to the Comptroller of the Treasury whether the Interstate Commerce Commis- sion is authorized to purchase furniture and office equipment from dealers not parties to the common supply contract. This question had previously been passed upon by the Attorney General in an opinion rendered to the President under section 354, Revised Statutes. ('Op. Atty. Gen., Feb. 27, 1913.) The Comptroller held that the question was one for him to decide, under the act of JulySl, 1894(28Stat., 208), saying: "I have no discretion in the matter and must ren- der a decision, and such decision as my con- science dictates, notwithstanding this opinion by the Attorney General." Upon the general subject of jurisdiction in such cases, the Comp- troller said: "If there is sometimes conflict of jurisdiction between the Attorney General and the Comp- troller of the Treasury, it is by reason of the dif- ferent constructions which are given these two provisions of the statutes. I have never 1 irought myself to the \iew that my jurisdiction de- pended upon the magnitiide of the question submitted. I have always thought that the primary question to be determined was, whether the main question involved the pay- ment of money out of an appropriation, and if so the jurisdiction was with the Comptroller; if, on the contrary, the main question was the authority of the President, the head of an executive department, or other Government official to perform a certain act regardless of the use of an appropriation, then the jurisdic- tion is with the Attorney General. "If the President or the Secretary of the Treasury had in this case sulimitted the ques- tion whether he, the Secretary, was authorized to schedule and contract for, under the act of June 17, 1910 (36 Stat., 468, 531), such articles as desks, tables, or sectional filing cases to be used by the Interstate Commerce Commission, and the Attorney General upon such request had rendered the opinion he has rendered, I have no doubt that the Secretary of the Treas- ury would have acquiesced in such opinion, and not scheduled and contracted for such articles. Under such circumstances, I would have felt myself morally boxind to follow the opinion of the Attorney General, notwithstand- ing my own personal views as to its correctness. But the Secretary of the Treasury has, and had before the date of the opinion of the Attorney General, scheduled and contracted for such arti- cles under the said act * * * "The articles here in question are purchased on a considerable scale, and used alike by all departments of the GoAornment * * * I am unable to agree with the Attorney General in his narrow and nonbeneficial construction of this law." This decision of the Comptroller of the Treas- ury, under date of March 31, 1913, was pub- lished with the following note: "The above decision was prepared on the 12tli day of March, 1913, but withheld pending the action of the Attorney General on a submission by the Secre- tary of the Treasury relative to a reconsidera- tion of the opinion of February 27, 1913, the one mentioned in the submission to tliis office and referred to in the above decision. Said sul)mission resulted in a withdrawal of the opinion, supra, of the Attorney General, under date of March 26, 1913, in which he held that the question involved in said withdrawn opin- ion was one involving a payment by the head of a Government establishment, and hence for the Comptroller of the Treasury to decide." (19 Comp. Dec, 617. But see above, VI (A) "Attorney General's jurisdiction not curtailed by the powers given Comptroller; and VI (C), " When Attorney General will render an opin- ion.") Will not concur in referring question of law to Attorney General. — ' ' With refer- ence to your further suggestion that I concur in a submission of the question with reference to the validity of this regulation to the Attor- ney General, permit me to say that I can see no propriety in or reason for my so doing. The law has cast upon the Comptroller of the Treas- ury the duty not only of deciding upon the facts but also of construing the law in con- nection with the settlement of the public accounts and particularly those accounts that involve the expenditure of public moneys. " (21 Comp. Dec, 554, 560. But see cases noted above, in which Comptroller of the Treasury has acquiesced in the submission to the Attor- ney General by the head of a department of questions involving payments; and has, in a number of instances, himself suggested such reference.) The Comptroller of the Treasury is not authorized to render an advance decision upon a question not involving a payment to be made by or under the officer requesting the opinion. It is one of the functions of the Attorney Gen- eral to give his opinion at the request of a head of a department upon cjuestions of law arising in the administration of his department; which is to be distinguished from the duty of the Comptroller of the Treasury to render decisions upon questions involving payments, which decisions govern the settlement of accounts therefor. (10 Comp. Dec, 812.) (The ques- tion in this case was whether the chief clerk of the Railway Mail Service is competent to administer the oath of office to appointees.) Where the disl^ursement of an appropriation was under the charge of the Secretary of the Interior, and the question arose whether under said appropriation the Secretary of the Interior had authority to authorize the United States attorney to employ witnesses and incur costs contemplated by liim in connection with cer- tain condemnation proceedings, the comp- troller stated that in his opinion "all such ex- penses should be ordered and approved by the Attorney General and paid from an appropria- 319 Sec. 366. Pt.2. REVISED STATUTES. Justice Department. tion under the Department of Justice;" but that the question presented 'appears to be cue of administration." wliich the Seiretary of the Interior, if he so desired . nii^dit sul imit to the At- torney Cieneral for an ad visory opinion under sec- tion 1")(), Revised Statutes. "(9 Comp. Dec, 793; see also 9 Comp. Dec, 446, 451.) Wliere the (piestion submitted is one as to the h'uality of a pro])osed payment for certain buiUlinv'S and outlit, lait back of the question of the expenditure of the money is that of the acciuisition of tlie site, tliis involves questions of law unconnected with any expenditure of guldic money, and hence not within the omptroller's jurisdiction. Therefore suggested tJiat the opinion of the Attorney General should be ol)tained upon the primary question in- volved in the acquisition of the site. (5 Comp. Dec, 682; see also 3 Comp. Dec, 730.) VII. MiSCELLAXEOUS. The Attorney General will not review the opinion of a former Attorney General unless a prnper case is presented therefor and submitted by the head of a department. (11 Op. Atty. Gen., 189.) A question once definitely answered by the Attorney General and left at rest for a long term of years should be reconsidered by one of his successors only in a very exceptional case. (21 Op. Attv. Gen., 24; affirmed 24 Op. Atty. Gen., 53; 24 'Op. Atty. Gen. 127, 132; compare 27 Op. Attv. Gen. 212, 215. See also 17 Op. Atty. Gen. 193.) The conclusions of a Federal coirrt are binding upon the Attorney General until reversed l>y a higher court. (24 Op. Atty. Gen., 59.) [The Attorney General has not al- ways followed decisions of the Court of Claims. Thus, the Court of Claims held that a vacancy occurring while the Senate was temporarily adjourned was legally filled by the President as a "recess" appointment. (Gould v. U. S., 19 Ct. Cls., 593, 595.) Thereafter the Attorney General, with knowledge of this decision, ad- vised the President that a vacancy occurring during a temporary adjournment could not be filled by him as a ''recess'' appointment. (23 Op. Atty. Gen., 599; but see 33 Op. Atty. Gen.. 20.) Also in 29 Op. Atty. Gen., 397, 407, the Attorney General cjuoted from the decision of the Court of Claims in Geddes v. U. S.. 38 Ct. Cls., 428, 445, and then said: "This reascming, as the minority hold, is in direct conflict with that of United States v. Tyler, supra, and can not be accepted as a correct statement of the law." It will be noted that here the Attorney General declmed to accept the "reasoning" and not the conclu- sions of the Court of Claims.] The Attorney General's opinions should be followed unless contrary to some authoritative judicial decision which puts the matter at rest. (25 Op. Atty. Gen., 301.) The opinions of the Attorney General should be regarded by the heads of departments as law until wathdrawn bv him or overruled by the courts. (20 Op. Atty. Gen., 654, 659; 20 Op. Atty. Gen., 719, 722.) Reasons for declining to render opinions except when required by law. — The Attor- ney General has no right to give an official opin- ion except in those cases in which it is required of him by law. (6 Op. Atty. Gen., 24.) To step beyond the circle of his duties as defined by law would in itself be a violation of law, independentiv of other relations of the subject. (6 Op. Atty. Gen., 25.) I should consider myself as transcending the limits of my commiasion in a very unjustifiable manner in attempting to attach the weight of my ojjice to any opinion not authorized by the law which prescribes my duties. (1 Op. Atty Gen., 211.) The Attorney General is sworn to discharge the duties of his oflice according to law. To be instrumental in enlarging the sphere of his official diitios beyond that which is prescribed by law would, in my opinion, be a \aolation of his oath. It would be incalculably dangerous to permit an officer to act, under color of his office, beyond the pale of the law. The pre- cedent would not be the less dangerous on ac- count of the purity of motives in which it originated. (1 Op. Atty. Gen., 335.) The Attorney General should not feel at lib- erty to augment the duties of his office, already sufficiently laborious, by setting a precedent by the voluntary assumption of others which do not belong to the office. (1 Op. Atty. Gen., 608, 609.) Is very imwilling to create a precedent which shall incumber his burdensome office with du- ties foreign to it. (1 Op. Atty. Gen., 608, 613.) • His opinion would not only be gratuitous, but unauthorized. (2 Op. Atty. Gen., 311.) Nor will the Attorney General render an un- official opinion in such a case, even as an indi- vidual, ])ecause in the relation he stands to the Government an opinion from him might be looked upon as an official one, and thus connect the Government with an individual contro- versy in which it has no concern and with which it ought not to interfere. (2 Op. Atty. Gen., 531.) For the Attorney General to render an opin- ion in such a case would be to lend the name of the Government to matters of controversy with which it is not connected by law, and would thus involve unauthorized interference with private rights. (6 Op. Atty. Gen., 24.) He has no warrant to act outside of the stat- utes which define his office. (15 Op. Attv. Gen., 138; 18 Op. Atty. Gen., 365.) He is not authorized or required to give an official opiiuon except in the cases specified by law. If he should do so, he would overstep the boundaries which appear to be prescribed for him by a long line of decisions and uniform practice, and would commit himself upon a question which might be properly submitted to him thereafter in accordance with law. (21 Op. Attv. Gen., 174; 20 Op. Atty. Gen., 609, 723.) His opinion, where not required by law, would be extraofficial and unauthorized. (10 Op. Atty. Gen., 220; 19 Op. Attv. Gen., 7; 20 Op. Atty. Gen., 724.) He is not permitted by law to render an offi- cial opinion upon questions not covered by the statute. (21 Op. Atty. Gen., 174.) His opinion, if rendered in a case not speci- fied by law, would be entitled to no more con- sideration than the opinion of any person 320 Justice Department. Pt.2. REVISED STATUTES. Sec. 358. presumed to have some knowledge of the point in question. (17 Op. Atty. Gen., 357; 20 Op. Attv. Gen., 383,667, 440; 2 Op. Atty. Gen., 531") He is not authorized to give an official opin- ion in any case not falling ■within the scope of hia duties, so as to connect the Government with iuf livid ual controversies in which it has no concern and with Avhich it ought not to inter- fere. (6 Op. Atty. Gen., 326, 334.) Such opinions would be in violation of hia oath of office and of dangerous example. (10 Op. Atty. Gen., 164.) Woidd make it impossible for the Attorney General to attend to his duties as prescribed by law. (5 Op. Atty. Gen., 165.) Would be unwarranted by law (11 Op. Atty. Gen., 4); not the duty or practice of the Attorney General (13 Op. Atty. Gen., 568; 19 Op. Atty. Gen., 414); not permitted by statute or precedent (19 Op. Atty. Gen., 414); would be inexpedient. (13 Op. Atty. Gen., 535.) No officer should be permitted to stretch his authority and carry the influence of his office beyond the circle which the positive law of the land has drawn around him. (1 Op. Atty. Gen., 493; 20 Op. Atty. Gen., 440.) Will render opinion where jurisdiction is doubtful. — Where the Attorney General en- tertains a doubt as to whether a case presented constitutes one of a character prescribed by statute as justifying and requiring the expres- sion of an opinion by him, he will as a matter of public policy aa well as of courtesy determine such doubt in favor of the propriety of such ad- vice. (27 Op. Atty. Gep., 38.) Sec. 357. [Legal advice to Departments of War and Navy.] Whenever a question of law arises in the administration of the Department of War or the Department of the Navy, the cognizance of which is not given by statute to some other officer from whom the head of the Department may require advice it shall be sent to the Attorney-General, to be by him referred to the proper officer in his Department, or otherwise disposed of as he may deem proper. — (22 June, 1870, c. 150, s. 6, v. 16, p. 163.) Whether subordinate oflElcers of the War and Navy Departments may refer ques- tions to the Attorney General, as well as the heads of those departments, has been sug- gested but not decided by the Attorney Gen- eral. If this section allows such action, "it is evident that it makes a distinction therein be- twixt these departments and all others, and that for a reason wliich upon its face it suggests. ' ' (18 Op. Atty. Gen., 59. See decisions noted under section 356, holding that the opinion of the Attorney General may be required unde that section only by the President or the head of a department, and will not be rendered to subordinate officers; see also file No. 20400-200 Op. 13, Sept. 25, 1920, quoting Atty. Gen.'s letter of Sept. 13, 1920, file No. 204625, re- questing that all references from the Navy Dept. come directly through or by direction of the Secretary of the Navy.) Questions of law arising in the Navy De- partment. — In the Navy Department the law authorizes a Judge Advocate General who is by statute given cognizance, among other things, of such duties "as have heretofore been per- formed by the Solicitor and Naval Judge Ad- vocate General." (Act June 8, 1880, 21 Stat., 164). The duties of the Judge Advocate Gen- eral, as defined by the Navy Regulations, 1920, include "all matters of law arising in the Navy Department." (Art. 469 C. N. R. 2; art. 393 (3), C. N. R. 2. ) Provision has also been made in annual appropriation acts for a Solicitor in the Navy Department, whose duties are not defined by statute. (See legislative, executive and judicial appropriation act, May 22, 1908, 35 Stat. 218, and subsequent years.) By Navy Regulations, 1920, it is provided that "the So- licitor shall perform such duties as may be assigned by the Judse Advocate General of the Navy." (Art. 393 (4), C. N. R. 2.) The Attorney General has requested that the opinion of the law officer of a depart- ment accompany request for his opinion by the head of such department; and has de- clined to render an opinion upon a question of law involving the personnel of the Navy until an opinion on such question had been prepared by the Judge Advocate General of the Navy. (File 22724-16:1, Jan. 25, 1911; file 27223-12, Jan. 20, 1915. See note to sec. 356, R. S.) Suits in foreign countries. — In view of sections 189, 357, and 365, Revised Statutes, the Secretary of the Navy is not authorized to employ counsel in foreign countries to institute suit in behalf of the United States to recover for damages caused to a vessel of the United States; but the case should be referred to the Department of Justice for attention. (21 Op. Atty. Gen. 195. For other cases, see note to sec. 189, R. S.) Sec. 358. [Reference of questions by Attorney-General to subordinates.] Any question of law submitted to the Attorney-General for his opinion, except questions involving a construction of the Constitution of the United States, may be by him referred to such of his subordinates as he may deem appro- priate, and he may require the vsTitten opinion thereon of the officer to whom 321 Sec. 369. Pt.2. REVISED STATUTES. Justice Department. the same may be referred. If the opinion given by such officer is approved by the Attorney-General, such approval indorsed thereon shall give the opinion the same force and effect as belong to the opinions of the Attorney-General. — (22 June, 1870, c. 170, s. 4, v. 16, p. 162.) As to "force and effect" of opinions rendered by Attornev General, see note to section 356, Revised Statutes. The Attorney General must personally pass upon every question submitted to him for opinion; for although he may under this section rol'or the ciuo-stion to a subordinate for a written opinion, the action of the subordinate must be examined and appi'oved by the At- torney General to give it effect. (21 Op. Atty. Gen., 174, 176.) Questions involving the construction of the Constitution should be submitted to the Attorney General for his personal opinion. The advice of the Solicitor of the Treasury may be asked upon any other question of law arising in the Treasury Department, and such advice is regarded as rendered by him in his character as assistant to the Attorney General. (20 Op. Atty. Gen., 656, 657.) Sec. 359. [Conduct and argument of cases.] Except when the Attorney- General in particular cases otherwise directs, the Attorney-General and Solicitor- General shall conduct and argue suits and writs of error and appeals in the Supreme Court and suits in the Court of Claims in which the United States is interested, and the Attorney-General may, whenever he deems it for the interest of the United States, either in person conduct and argue any case in any court of the United States in which the United States is interested, or may direct the Solicitor-General or any officer of the Department of Justice to do so. — (24 Sept., 1789, c. 20, s. 35, v. 1, p. 92. 25 Jirne, 1868, c. 71, s. 5, v. 15, p. 75. 22 June, 1870, c. 150, s. 5, V. 16, p. 162. U. S. v. Lawrence, 13 Blatch., 295.) This section is modified by act of June 30, 1906 (34 Stat., 816), which authorizes the Attor- ney General or any attorney appointed by him to conduct any kind of legal proceed- ing which district attorneys are authorized to conduct, including grand jury proceed- ings. As to duty of Attorney General in connection with proceedings in Court of Claims, see sections 180, 185, Judicial Code, act March 3, 1911 (36 Stat., 1142). Attorney General may require certain informa- tion to be furnished him by departments in connection with suits in the Court of Claims. (Sec. 188, R. S.) Suits in the Court of Claims. — The Attor- ney General is the only officer of the Govern- ment, except his assistants authorized by him, who has any right to represent the United States in suits in the Court of Claims. (Campbell v. U. S., 19 Ct. Cls., 426, 429.) The authority of the Attorney General to "conduct suits" in the Court of Claims on be- half of the Government may fairly be held to include at least every act in the conduct of such suits which an attorney at law in a suit between individuals might lawfully do, with this reser- vation, as has uniformly been held by the Court of Claims, that he can not on the trial of a cause bind the Government by admitting facts ad- verse to it unless they are such as it is his offi- cial duty to know and as have become known to him offifially in the course of the discharge of such duty. (Campbell v. U. S., 19 Ct. Cls., 426, 429.) Proceedings in Supreme Court. — When a case in which the Government is interested comes to the Supreme Court from any lower court, it passes beyond the limits within which a district attorney has jurisdiction and exercises his powers and falls by the terms of this section within the special care of the Attorney General. The Attorney General may in his discretion make other arrangements for the management of such a case, but this discretion does not abridge the fact that full responsibility and control are imposed directly upon him as the head of the Department of Justice. (U. S. v. Winston, 170 U. S., 522, 524.) The solicitor in the office of the Judge Advo- cate General of the Navy has represented the United States in the Supreme Court (U. S. v. Smith, 197 U.S., 386; hie 469-1904); as has also a commissioned officer of the Marine Corps, who appeared in behalf of the United States "by special leave of the court. ' ' (Johnson v. Sayre, 158 U. S., 113; file 5728-1894. See also U. S. v. Freeman, 3 How., 560, in which defendant, an officer of the Marine Corps, submitted printed argument for himself and was not represented by counsel.) Proceedings in inferior Federal courts. — It is at least doubtful whether the authority given the Attorney General to "conduct and argue any case in any court of the United States in which the United States is interested " con- fers upon him any authority to commence and institute i)roceedings except through the dis- trict attornevs. (Attorney General v. Rumford Chemical Works, 32 Fed. Rep., 608, 623. But see act June 30, 1906, noted above.) 322 Justice Department. Pt. 2. REVISED STATUTES. Sec. 362. It is probable that the intention of this section was to settle the right of the highest law officer of the United States and the Solicitor General and the officers of the Department of Justice to "conduct and argue" cases "in any court" as they had been permitted to do in the Supreme Court and in the Court of Claims, and to leave public prosecutions until they come before the court to which they are returnable within the exclusive direction of the district attorney as theretofore declared. (U. S. v. Rosenthal, 121 Fed. Rep., 866. But see act June 30, 1906, noted above.) Proceedings before grand jury.— The At- torney General, the Solicitor General, nor any officer of the Department of Justice is authorized by sections 359, 367, or other provisions of the Revised Statutes to conduct or to aid in the con- duct of proceedings before a grand jury, nor has a special assistant to the Attorney General such power. (U. S. v. Rosenthal, 121 Fed. Rep., 862.) [This is now authorized by act June 30, 1906, above noted.] Suits in State courts. — It should be ob- served that by section 359 the Attorney General may not "conduct and argue any case" in a State court. Section 367 gives that power. (U. S. V. Rosenthal, 121 Fed. Rep., 867.) Sec. 360. [Performance of duty by officers of the Department of Justice.] The Attorney-General may require any solicitor or officer of the Department of Justice to perform any duty required of the Department or any officer thereof.— (22 June, 1870, c. 150, s. 14, v. 16, p. 164.) The Attorney General has express au- thority under this section and section 367 to send an officer of the Department of Justice to any State in the United States to attend to the taking of a deposition in a suit in which the United States is interested and which is pending in another State. (U. S. v. Ady, 76 Fed. Rep., 359, 363.) Sec. 361. [Legal services required by the President, heads of depart- ments and subordinates.] The officers ' of the Department of Justice, under the direction of the Attorney-General, shall give all opinions and render all services requiring the skill of persons learned in the law necessary to enable the President and heads of Departments, and the heads of Bureaus and other officers in the Departments, to discharge their respective duties; and shall, on behaK of the United States, procure the proper evidence for, and conduct, prosecute, or defend all suits and proceedings in the Supreme Court and in the Court of Claims, in vs^hich the United States, or any officer thereof, as such officer, is a party or may be interested; and no fees shall be allowed or paid to any other attorney or counselor at law for any service herein required of the officers of the Department of Justice, except in the cases provided by section three hundred and sixty-three. — (22 June, 1870, . 150, s. 14, v. 16, p. 164.) See section 188, Revised Statutes, concerning evidence to be furnished Attorney General to defend suits in Court of Claims. See section 189, Revised Statutes, and note, as to employment of attorneys or counsel by the heads of departments generally, employ- ment of counsel to serve as judge advocate or to assist the judge advocate of a naval court-martial, employment and pajinent of counsel in foreign countries, etc. See also note to section 362, Revised Statutes. Legal assistance to subordinate offi- cers. — P^or the guidance of the heads of bureaus and other officers of the departments in the discharge of their duties, provision is made by this section for assistance from the oflicers of the Department of Justice under the direction of the Attorney General. (20 Op. Atty. Gen., 608, 609. See also note to sees. 356 and 357, R. S.) Sec. 362. [Superintendence of district attorneys and marshals.] The Attorney- General shall exercise general superintendence and direction over the attorneys and marshals of all the districts in the United States and the Territories as to the manner of discharging their respective duties ; and the several district attorneys and marshals are required to report to the Attorney-General an account of their official proceedings, and of the state and condition of their respective offices, in such time and manner as the Attorney-General may direct. — (2 Aug., 1861, c. 37, s. 1, V. 12, p. 285. 22 June, 1870, c. 150, ss. 16, 17, v. 16, p. 164.) 323 Sec. 363. Pt. 2. REVISED STATUTES. Justice Department. Purpose of section. — The Attorney Gen- eral being the chief law oHker of the Govern- ment, Cons;ros.s docMued it i^rojicr to sul)ject to his general sii))orint(Mi(len(e tnese subordinate law oHiccrs to the end tluil the legal l)usiness of the I'nited States in their luuids, whether civil or criminal, should l)e placed more directly under the eye and witliin the control of the Government! (10 ()]i. Atty. (!cn., 95.^ This section does not authorize the At- torney General to control the action of the district attorneys in criminal cases by general regulation. His power must be exercised by giving jKxrticular instructions in particular cases and based on the facts of such cases. (Fish D. U. S., 36 Fed. Rep., 677.) Instructions to district attorneys in naval cases. — In cases in which persons in the naval service applj^ for writs of habeas corpus, it is the practice of the Attorney Gen- eral, upon request of the Secretary of the Navy, to instruct the United States attorney for the district in which the proceeding is instituted, to render all necessary assistance to the officer upon whom the writ is served in order to protect the interests of the Government. (File 26522; G. 0. 121, Sept. 17, 1914.) Similar instructions are issued by the Attor- ney General in other cases of legal proceedings instituted against officers of the Na\'y as the result of official acts performed by them. (File 204-04, Jan. 15, 1904, suit of Paymaster Robt. B. Rodney, retired, against Capt. Sam. C. Lemly, Judge Advocate General; file 27231- 8:6, Feb. 6, 1911, mandamus proceeding by Capt. Jefferson F. Moser, U. S. N., retired, against Hon. George von L. Meyer, Secretary of the Nav}^; file 26522-19:4, December 3, 1912, suit of W. W. Dickey, chief commissary steward, against Rear Admiral Doyle, Capt. Huse, Capt. Welles, Capt. Quimby, U. S. N., and Capt. Marix, U. S. M. C; file 28478^2:1. suit of I3enj. B. Abrahams against First Lieut. Howard C. Judson, U. S. M. C; see also, 9 Op. Atty. Gen., 51.) In cases in which persons fratidulently imper- sonate officers or enlisted men of the Navy, the Attorney General causes criminal prosecutions to be instituted by the United States attorneys where the matter is brought to his attention by the Secretary of the Navy (file 21355); and ap- propriate instructions are issued by him to dis- trict attorneys in other classes of cases concern- ing the Navy Department, such as reported violations of the 8-noiir law by contractors (file 10107), etc. In trials before courts-martial the Attorney General, upon request of the Secretary of the Na\-y in special cases, has instriicted a United States attorney to assist the judge advocate (file 26251-5816:2); and has issued similar in- stnictions in cases under investigation by courts of inqiury (file 14625-183:1; 9608-44:4. See also note to sec. 189, R. S.). The Attorney General, upon request of the Secretary of the Navy, has instructed a United States attorney to assist in the prosecution of a civil suit brought by a chief petty ofiicer against private parties for discrimination against the naval uniform. (File 5421-3; see also file 7657-330.) The Secretary of the Navy will not request the Attorney General to instruct United States attorneys to institute criminal proceedings against applicants for enlistment in the Marine Coqjs alleged to have fraiidulently obtained Government transportation, it appearing that such attorneys have declined to prosecute these cases, and that the necessity for proceedings in the civil courts might be ob\dated by enlisting the men l)efore furnishing them with transi^orta- tion, thereby subjecting them to the juris- diction of naval courts-martial. (File 7657- 180.) \\ here an officer asking that legal assistance be furnished him has failed to give the full facts of the case to the Navy Department, although afforded ample opportunity to do so, and in consequence the department has not sufficient information to enable it to act intelligently upon the request, the case is not a proper one for reference to the Attorney General. (File 26262-1705:3, May 21, 1915.) The Attorney General can not instruct a United States attorney to appear in a State court to assist in the prosecution of a private citizen charged with killing a person in the naval serv- ice; it must be assumed in the absence of facta tending to show the contrary that the State authorities will do their full duty in the matter; and attempted interference with the State au- thorities woidd be improper. (File 26250- 340:3, June 11, 1912, following letter of Attorney General, Apr. 18, 1912, file 26250-340:2; 7657- 374.) Although the Attorney General may enter- tain doubt whether, in view of the peculiar circumstances of hardship in a particular case, it is desirable to proceed ^vith a criminal prose- cution institiitecl at the instance of the Navy Department, he will nevertheless direct the United States attorney to proceed with the case if in the opinion of the Secretary of the Navy the interests of the Navy Department render it desirable that such a prosecution be had. (File 5939-6, Feb. 12, 1907.) [The Sec- retary of the Navy concurring in the recom- mendation of the United States attorney in this case, the Attorney General authorized the latter to dismiss the case, which was a prosecution for perjury against a former enlisted man who had been discharged from the Marine Corps upon writ of habeas corinis on account of fraudulent enlistment. (File5939-7,Feb. 18, 1907.)] Instructions to marshals.-The Attorney General declines to instruct United States mar- shals to apprehend and return deserters from the Navy where Congress has not seen fit to confer such authority upon civil officers. (File 5621-1, Nov. 17, 1906. For subsequent legis- lation on this sTibject see act Feb. 16, 1909, sec. 15, 35 Stat.. 622.) Sec. 363. [Retaining counsel to aid district attorneys.] The Attorney-Gen- eral shall, whenever in his opinion the pubHc interest requires it, employ and retain, in the name of the United States, such attorneys and counselors at law as he may think necessary to assist the district attorneys in the discharge of 324 Justice Department. Pt. 2. REVISED STATUTES. Sec. 366. their duties, and shall stipulate with such assistant attorneys and counsel the amount of compensation, and shall have supervision of their conduct and pro- ceedings.— (2 Aug., 1861, c. 37, s. 2, v. 12, p. 285. 3 Mar., 1869, c. 121, s. 1, V. 15, pp. 283, 294. 10 April, 1869, c. 25, v. 16, p. 46. 22 June, 1870, c. 150, s. 16, V. 16, p. 164.) See note to section 3G6, Revised Statutes. Sec. 364. [Attendance of counsel to be provided by Attorney-General.] Whenever the head of a Department or Bureau gives the Attorney-General due notice that the interests of the United States require the service of counsel upon the examination of witnesses toucliing any claim, or upon the legal in- vestigation of any claim, pending in such Department or Bureau, the Attorney- General shall provide for such service. — 14 Feb., 1871, c. 51, s. 3, v. 16, p. 412.) A similar provision is contained in section 187, Revised Statutes. The object of these statutory provisions (sees. 363, 364, and 365, R. S.) is manifest. vMule giving the Attorney General full power to employ counsel for tne United States to assist those upon whom regiilarly devolve the duty of representing the Government in the courts without special compensation, Congress intended to restrict the exercise of that power to the extent indicated in section 365. It was left to that officer to determine whether the public interests required the employment of special counsel, but that the discretion given him might not be abused and that unnecessary expense might be avoided it was declared (sec. 365) that except in the cases of the respective district attorneys and assistant district attorneys no compensation should be allowed to any per- son as an attorney or counsel for the United States imless specially authorized by law, and then only on the certificate of the Attorney General that such services were actually ren- dered and that the same could not have been performed by the Attorney General or by the Solicitor General or by the officers of the De- partment of Justice or by the district attorneys. (U. S. V. Crosthwaite, 168 U. S., 375, 379.) Sec. 365. [Counsel fees restricted.] No compensation shall hereafter be allowed to any person, besides the respective district attorneys and assistant district attorneys for services as an attorney or counselor to the United States, or to any branch or Department of the Government thereof, except in cases specially authorized by law, and then only on the certificate of the Attorney- General that such services were actually rendered, and tliat the same could not be performed by the Attorney-General, or Solicitor-General, or the officers of the Department of Justice, or by the district attorneys. — (22 June, 1870, c. 150, s. 17, V. 16, p. 164.) See note to section 364, Revised Statutes. Sec. 366. [Appointment and oath of special attorneys or counsel.] Every attorney or counselor who is specially retained, under the authority of the Department of Justice, to assist in the trial of any case in which the Govern- ment is interested, shall receive a commission from the head of such Depart- ment, as a special assistant to the Attdrney-General, or to some one of the district attorneys, as the nature of the appointment may require; and shall take the oath required by law to be taken by the district attorneys, and shall be subject to all the liabilities imposed upon them by law. — (22 June, 1870, c. 150, s. 17, V. 16, p. 164.) See section 189, Revised Statutes, and note thereto. Counsel employed in foreign country to defend master of a United States naval aux- iliary in suit for collision, not required to take oath of office. File 4729-18. (See note to sec. 189, R. S.) Sections 363 and 366 must be construed together and as referring to the same class of special assistants. They do not authorize the Attorney General to appoint special assistants to a district attorney having the authority or right to appear before and participate in the proceedings of a grand jury. (U. S. v. Chem- ical Co., 163 Fed. Rep., 66; but see note to sec. 359, R. S.) 325 Sec. 383. Pt. 2. REVISED STATUTES. Justice Department. Sec. 367. [Interest of United States in pending suits — who may attend to.] The Solicitor-General, or any officer of the Department of Justice, may be sent by the Attorney-General to any State or District in the United States to attend to the interests of the United States in any suit pending in any of the courts of the United States, or in the courts of any State, or to attend to any other interest of the United States.— (22 June, 1870, c. 150, s. 5, \. 16, p. 162.) See note to section 360, Revised Statutes. Sec. 383. [Publication of opinions.] The Attorney-General shaU from time to time cause to be edited, and printed at the Government Printing-Office, an edition of one thousand copies of such of the opinions of the law-officers herein authorized to be given as he may deem valuable for preservation in volumes, whicli sliall be, as to size, quality of paper, printing, and binding, of uniform style and appearance, as nearly as practicable, with volume eight of such opinions, published, by Robert Farnham, in the year eighteen hundred and sixty-eight. Each volume shaU contain proper head-notes, a complete and full index, and such foot-notes as the Attorney-General may approve. Such volumes shall be distributed in such manner as the Attorney-General may from time to time prescribe. — (22 June, 1870, c. 150, s. 18, v. 16, p. 165.) The opinions of the successive Attor- neys General, possessed of greater or less amovmt of legal acumen, acquirement, and experience, have come to constitute a body of legal precedents and exposition, having author- ity the same in kind if not the same in degree with decisions of the courts of justice. (6 Op. Atty. Gen., 326, 334. See note to sec. 356, R. S., as to weight of Attorney General's opinions.) 326 TITLE IX. THE POST-OFFICE DEPARTMENT. Sec. 388. Establishment of Post-Office Department. 391. Oath of office. 392. Oath, before whom taken. Sec. 39G. Duties of Postmaster-General. 398. Postal arrangements with foreign tries. coun- Sec. 388. [Establishment of Post-Office Department.] There shall be at the seat of Government an Executive Department to be known as the Post-Office Department, and a Postmaster-General, who shall be the head thereof, and who shall be appointed by the President, by and with the advice and consent of the Senate, and who may be removed in the same manner; and the term of the Postmaster-General shall be for and during the term of the President by whom he is appointed, and for one month thereafter, unless sooner removed. — (8 May, 1794, c. 23, s. 3, v. 1, p. 357; 8 June, 1872, c. 335, ss. 1, 2, v. 17, p. 283.) Envelopes for use by all executive depart- ments and branches of the service under their jmisdiction shall be contracted for by the Postmaster General for periods not ex- ceeding four years, such envelopes to be plain or printed as may be prescribed by the department making the requisition. (Act June 26, 1906, 34 Stat., 476.) History and growth of executive departments — Bee note to section 158, Prevised Statutes. Navy mail clerks and assistant navy mail clerks, appointed from enUsted men of the Navy and Marine Corps, as to their duties as such clerks shall be "governed by the postal laws and regulations of the United States." (Act May 27, 1908, 35 Stat., 417, as amended by acts Aug. 24, 1912, 37 Stat., 554, Aug. 24, 1912, sec. 11, 37 Stat., 560, Mar. 4, 1917, 39 Stat., 1188, and July 1, 1918, 40 Stat., 718..) Ocean mail vessels are to be constructed ac- cording to plans approved by the Secre- tary of the Navy with reference to their conversion into naval auxiliary cruisers; no vessel to be employed by the Post- master General in such service which is not approved by the Secretary of the Navv. (Act Mar. 3, 1891, sec. 4, 26 Stat., 831.) " Ocean mail vessels may be taken by the United States and used as transports or cruisers, upon payment to owners of the full actual value. (Act Mar. 3, 1891, sec. 9, 26 Stat., 832.) Officers of the Navy may be detailed by Secre- tary of the Navy for duty on ocean mail vessels, if accepted by the contractor, and while so employed they shall receive fur- lough pay from the Government. (Act Mar. 3, 1891, sec. 7, 26 Stat., 832.) Penalty envelopes: Letters, packages, etc., relating exclusively to business of the Gov- ernment of the United States may be trans- mitted free tln-ough the mail (act Mar. 3, 1877, sec. 5, 19_Stat., 335). The envelopes of such matter in all cases shall bear appro- priate indorsements containing the proper designation of the office from which or officer from whom the same are transmitted, with a statement of the penal tv for their misuse. (Act Mar. 3, 1879, sec. 29, 20 Stat., 362, amended by act Julv 5, 1884, sec. 3, 23 Stat., 158. See Art. 5481, Naval Insti-uctions, 1913. See also note to sec. 398, R. S., file 25885-6, and file 10726-15, May 1, 1914.) Penalty envelopes: Any department or officer authorized to use penalty envelopes may inclose them with return address to persons from whom official information is desired. (Act Mar. 3, 1879, sec. 29, 20 Stat., 362, amended by act July 5, 1884, sec. 3, 23 Stat., 158.) But such envelopes shall not be furnished for use to contractors with the Government or to enable private persons or concerns to send free reports, etc., which they are required by law to make. (Sec. 500, "Postal Laws and Regulations," 1913.) Penalty envelopes: No article or package shall be admitted to the mails under the penalty privilege unless it would be entitled to ad- mission to the mails under laws requiring pavment of postage. (Act June 26, 1906, 34 Stat., 477.) Penalty envelopes: Lending or permitting use of frank by or for benefit of any committee, organization, or association, other than committees composed of members of Con- gress, declared unlawful. (Act June 26, 1906, 34 Stat., 477. )_ Fraudulent use of official envelopes punishable by fine of not more than .f300. (Criminal Code, act Mar. 4, 1909, sec. 227, 35 Stat., 1134.) 327 Sec. 392. Pt. 2. REVISED STATUTES. Post-Office Department, Soldiers, sailors, and marines in service of the X'nited States, may transmit unpaid and duly certified letters to their destination, iui(fer regulations i)rescribed by the Post- master General, to be paid for on delivery. (Act Mar. 3, 1879, sec. 9, 20 Stat., 358.) During the present war such letters writ- ten by soldiers, sailoi^s and marines in a foreign country may be mailed free of postage. (Act Oct. 3, 1917, 40 Stat., 327.) President authorized to use armed forces to pre- vent obstruction of mails durLng exist- ing war. (Act Aug. 10, 1917, 40 Stat, 272.) Registered mail: Lettere or packages may be registered by executive departments and bureaus without payment of registry fee. (Act Mar. 3, 1879, sec. 29, 20 Stat., 362, amended by act Julv 5, 1884, sec. 3, 23 Sta,t., 158.) Sec. 391. [Oath of office.] Before entering upon the duties of his office, and before he shall receive any salary, the Postmaster-General and each of the persons employed in the postal service shall respectively take and subscribe, before some magistrate or other competent officer, the following oath: "I, A. B., do solemnly swear (or affirm) that I will faithfully perform all the duties required of me, and abstain from everything forbidden by the laws in relation to the estabhshment of post-offices and post^roads within the United States; and that I wiU honestly and truly account for and pay over any money belonging to the said United States which may come into my possession or control: So help me, God."— (8 June, 1872, c. 335, s. 15, v. 17, p. 287; 5 Mar., 1874, c. 46, V. 18, p. 19.) Enlisted men of the Navy or Marine Corps, designated as navy mail clerks or assistant navy mail clerks, are required by law to "take the oath of office prescribed for employees of the Postal Service." (Act May 27, 1908, 35 Stat., 417, as amended by acts Aug. 24, 1912, 37 Stat., 554, Aug. 24, 1912, sec. 11, 37 Stat., 560, Mar. 4, 1917, 39 Stat., 1188, and July 1, 1918, 40 Stat., 718.) By Naval Instructions, 1913 (art. 5401 (4)), navy mail clerks and assistant navy mail clerks are required to take an oath of office which combines that prescribed in section 1757, Re^"ised Statutes, with that prescribed for the Postal Ser\'ice. (See 18 Op. Atty. Gen., 181. See also "Postal Laws and Regulations, sec. 153;" and see file 3980-1185, Jan. 15, 1916.) "Every person employed in the Postal Service shall be subject to all j^enalties and for- feitures for the violation of the laws relating to such service, whether he has taken the oath of office or not." (Criminal Code, act Mar. 4, 1909, sec. 230, 35 Stat., 1134.) For modification of this section, see note to section 392, Revised Statutes. Sec. 392. [Oath, before whom taken.] Any officer, civil or military, holding a commission under the United States, is authorized to administer and certify the oath prescribed by the preceding section. — (8 June, 1872, c. 335, s. 15, v. 17, p. 287; 5 2Iar., 1874, c. 46, v, 18, p. 19.) forbidden by the laws in relation to the estab- lishment of post-offices and post-roads within the United States; and that I ■will honestly and truly account for and pay over any money belonging to the said United States which may come into my possession or control; and I akso further swear (or affirm) that I 'wdll support the Constitution of the United States; so help me God.' And this oath or affirmation may be taken before any officer civil or mihtary hold- ing a commission under the United States, and such officer is hereby authorized to administer and certify such oath or affirmation." This act of March 5, 1874, is amendatory of sections 391 and 392, in so far as said act varies from those sections, this being provided for by section 5601, Revised Statutes. Also, by act of March 2, 1877 (19 Stat., 268), as amended by actof March 9, 1878 (20 Stat. , 27), it was provided that the second edition of the Revised Statutes shall "not control, in case of any discrepancy, the effect of any original act as passed by Con- gress since the first day of December, eighteen hundred and seventy-three." As to persons in the naval service authorized to administer oaths, see section 183, Revised Statutes, and note thereto. Naval Instructions, 1913, article 5401 (4), pro- vides that the oath administered to navy mail clerks and assistant navy mail clerks shall be taken and subscribed "before a magistrate or commissioned officer of the Navy." Sections 391 and 392, as printed above, are in the same lansruage as these sections appear in the second edition of the ReWsed Statutes. However, by act of March 5, 1874 (18 Stat., 19), it was provided as follows: "That before en- tering upon the duties, and before they shall receive any salary, the Postmaster General, and all persons employed in the postal ser^dce, shall respectively take and subscribe before some magistrate or other competent officer authorized to administer oaths by the laws of the United States, or of any State or Territory, the following oath or affirmation: 'I, A. 13. do solemnly swear (or affirm, as the case may be,) that I will faithfully perform all the duties required of me and abstain from everything 328 Post-Office Department. PL 2. RE VISED S TA T UTES. Sec. 398. Sec. 396. [Duties of Postmaster-General.] It shall be the duty of the Postmaster-General : Fu^t. To establish and discontinue post-offices. Second. To instruct all persons in the postal service with reference to their duties. Thu'd. To decide on the forms of all official papers. Fourth. To prescribe the manner of keeping and stating accounts. Fifth. To enforce the prompt rendition of returns relative to accounts. Sixth. To control, according to law, and subject to the settlement of the Sixth Auditor, aU expenses incident to the service of the Department. Seventh. To superintend the disposal of the moneys of the Department. Eighth. To direct the manner in which balances shall be paid over; issue warrants to cover money into the Treasury; and to pay out the same. Nmth. To superintend generally the business of the department, and execute all laws relative to the postal service. [See sees. 3660-3665, 3668, 3669.]— (8 June, 1872, c. 335, s. 6, v. 17, p. 285; 3 Mar., 1877, c. 103, s. 2, V. 19, p. 335; Locke v. U. S. 3 Mas., 446.) The title of the "Sixth Auditor" was chajiged to "Auditor for the Post Office Depart- ment," by act of July 31, 1894, section 3 (28 Stat., 205). Navy mail clerks and assistant Navy mail clerks are to perform such postal duties as may be authorized by the Postmaster-General, and to give bond in such penal sum as the Post- master-General may prescribe. (Act May 27, 1908, 34 Stat., 417, as amended bv act Aug. 24, 1912, sees. 3 and 11, 37 Stat., 554,' 560.) Sec. 398. [Postal arrangements with foreign countries.] For the purpose of making better postal arrangements with foreign countries, or to counteract their adverse measures affecting our postal mtercourse with them, the Post- master-General, by and with the advice and consent of the President, may negotiate and conclude postal treaties or conventions, and may reduce or increase the rates of postage on mail-matter conveyed between the United (8 June, 1872, c. 335, s. 167, v. 17, p. 304.) label may also be dispatched in the same man- ner to Canada, Cuba, Mexico, the Republic of Panama, and to the city of Shanghai, China." (Sec. 518, Postal Laws and Regulations, 1913; see also file 3980-1185, Jan. 15, 1916.) Newfoundland is not a part of Canada, but a separate province of the British Empire; and official letters to Newfoundland are required to be prepaid. (File 7538-176, Aug. 2, 1915.) See section 388, Revised Statutes, and laws noted thereunder. States and foreign countries Articles 25 and 26 of the Universal Postal Con- vection, concerning the handling of closed mails to and from vessels of the Navy, are published in Naval Instructions, 1913, article 5442. Customs regulations relating to mails are pub- lished in articles 5421 and 5423, Naval instructions, 1913. Under the Universal Postal Convention "official correspondence which is admissible to the domestic mails under penalty envelope or 329 TITLE X. THE DEPARTMENT OF THE NAVY. Sec. Sec. 415. Establishment of the Department of the 426. Navy. 427. 416. Clerks and employees. 417. Duties of the Secretary of the Navy. 428. 418. Department property, books, and records. 429. 419. Establishment of bureaus and distribution of business. 430. 420. Orders considered as emanating from 431. Secretary. 432. 421. Chiefs of bureaus. 433. 422. Bureaus of Yards and Docks, Equipment, Navigation, and Ordnance. 434. 423. Bureau of Construction and Repair. 435. 424. Bureau of Steam Engineering. 436. 425. Bureau of Supplies and Accounts. Sec. 416. [Establishment of the Department of the Navy.] There shall be at the seat of Government an Executive Department, to be known as the Department of the Navy, and a Secretary of the Navy, who shall be the head thereof.— (30 Apr., 1798, c. 35, s. 1, v. 1, p. 553.) Bureau of Medicine and Surgery. Use of engraved plates of Wilkes's Ex- pedition. Collection of enemies' flags. Reports to be made by Secretary of the Navy. Estimates for expenses. Hydrographic office. Maps, charts, etc. Money received from sale of maps, charts, etc. Naval Observatory. Meridans. Nautical Almanac. As to "origin and grswth of executive depart- ments," see note to section 158, Revised Statutes. For "provisions applicable to all the executive departments," see Title IV, sections 158-198, Revised Statutes. The permanent "seat of Govemment" is the District of Columbia (sec. 1795, R. S.). "All offices attached to the seat of Government shall be exercised in the District of Columbia, and not elsewhere, except as otherwise ex- pressly provided by law" (sec. 1796, R. S.). In case of a contagious or epidemic disease at the seat of Government, the President is author- ized to remove the public ofiices therefrom. (Sec. 4798, R. S.; see also sees. 34, 1776, 4797, and 4799, R. S.) The term "executive department" refers only to what may be called the department proper located at Washington, and does not include those adjuncts of a department en- gaged wholly in field service. (4 Comp. Dec, 551; see also 5 Comp. Dec, 667; 7 Comp. Dec, 126.) The several executive departments are by law established at the seat of Government; they have no existence elsewhere. Only those bureaus and offices can be deemed bureaus and offices in any of these departments which are constituted such by law of its organization. The department, with its bureaus or offices, is in the contemplation of the law an establish- ment distinct from the branches of the public service and the offices thereof which are under its supervision. (15 Op. Atty. Gen., 262, 267: 26 Op. Atty. Gen., 254.) The Marine Corps headquarters is a part of the Naval Establishment, but it is not a part of the Navy Department as established at the seat of Government; it is under the super- vision of the executive department, but that relation to the department is not the same as being a part of it. (11 Comp. Dec, 558; file 4600, Apr. 10, 1906; file 21686, Apr. 11, 1906.) A clerk in a navy yard is not a clerk in an executive department, although the navy yard is under the supervision of one of the executive departments. (26 Op. Atty. Gen., 254.) Employees of the navy yard and gun factory in Washington are under the Navy Department, but are not a part of an executive department. (11 Comp. Dec, 97.) For other cases, see note to section 159, Revised Statutes. State, War, and Navy Building. — The Navy Department was to occupy such rooms in the State, War, and Navy Building as were assigned for its use by a joint committee of Congress, pursuant to act of August 5, 1882, section 6 (22 Stat., 256). Reapportionment at any time of space in said bmlding was author- ized by act of May 10, 1916 (39 Stat., 94). Navy Department Annex. — Additional quarters to be rented for the Navy Departroetut, for a period not exceeding 10 years from July 1, 1913, at an annual rental of not exceecling $30,000, %vere authorized to be contracted for by theSecretaryof theNavybyactof March4, 1913 (37 Stat., 771). [Such additional quarters, designated by law as the "Na^y Department Annex, New York Avenue near Seventeenth Street Northwest, ' ' were occupied by the Navy 54641°— 22- -22 331 Sec. 416. PL 2. REVISED STATUTES. Navy Department. Department pursuant to the act cited, in lieu of quarters formerly usetl aa an annex by the Navy Department ana knomi as the "Mills Builci- Temporary office buihiiiigs for use of the War and Navy Departments in Henry Park were authorized bv act of October 6, 1917 (39 Stat., 368) and in Potomac Park bv act of March 28, 1918 (40 Stat., 483). A superintendent of the State, War, and Navy Department Building, to be detailed from the Engineer Corps of the Army or Navy, was authorized by act of March 3, 1883 (22 Stat., 563); and his duties were extended to include the "Na\'y Department Annex, or Mills Build- ing/' by act May 22, 1908 (35 Stat., 218), and to include temporary additional buildings by act of March 28, 1918 (40 Stat., 482, 483). (See notes to sees. 1390, 1413, and 1462, R. S.; and see act Jime 4, 1918, 40 Stat., 598). The Secretaries of State, War, and Navy constitute a commission for the care and super- vision of the State, War, and Navy Department Building; the duties of the superintendent of the building being discharged under their direc- tion. (Act Mar. 3, 1883, 22 Stat., 553.) Laws and regulations VTithin the District of Columbia for protection of property and preservation of peace and order were extended to all public buildings and gtounds belonging to the United States within the said district, by act of July 29, 1892, section 15 (27 Stat., 325). Disorderly and unlawful conduct in public buildings within the District of Columbia, or the injury of pipes, hydrants, etc., therein, is punishable by fine of not more than $50. (Act July 29, 1892, sec. 15, 27 Stat., 325.) Pubhc buildings not to be closed as mark of respect for deceased exofiicials (act Mar. 3, 1893, sec. 4, 27 Stat., 715); nor to be draped in mourning (same act, sec. 3). The Na\-y Department is required to be kept open_ during stated hours for the transaction of public business. (See sec. 162, R. S.) Buildings rented. — Annual report to Con- gress of buildings rented is required of heads of departments by act of March 3, 1883 (22 Stat., 552) ; act of July 16, 1892 (27 Stat. , 199) ; and act of May 1, 1913, section 3 (38 Stat., 3). Contracts for the renting of buildings in Wash- ington are prohibited in the absence of .specific authority (Act Mar. 3, 1877, 19 Stat., 370). "Whenever buildings are rented for public use in the District of Columbia, the executive departments are authorized, whenever it shall be advantageous to the public interest, to rent others in their stead: Provided, That no increase in the number of buildings now in use, nor in the amounts paid for rent, sliall result there- from." (Act Aug. 5, 1882, 22 Stat., 241.) Heads of departments are authorized to con- tract for the lease of modern fireproof storage accommodations in the District of Columbia payable from appropriations for rent of build- ings for their departments. (Act Mar. 2, 1913, 37 Stat., 718.) The Department of the Navy was orig- inally established by act of April 30, 1798 (1 Stat., 553). Prior to that date its duties were discharged bv the Secretary of War. (See note to sec. 158, R. S.) The designation, "Navy Department," in- stead of "Department of the Navy," is now exclusively used by Congress in legislation relating to this department. The Department oi the Navy is sixth in order of precedence among the executive depart- ments. (Sec. 158, 11. S.) Not a naval station. — The Navy Depart- ment, Washington, D. C, is not a naval station within the meaning of section 1386, Revised Statutes [now repealed] allowing clerks to "paymasters at stations." The word "station" as used in that section means "naval station." (13Comp. Dec, 693.) Secretary of the Navy. — The compensa- tion of the Secretary of the Navy is fixed at $12,000 a year, by act of February 26, 1907 (34 Stat., 993). (See note to section 160, R. S.) The statutes do not provide by whom the Secretary of the Navy is to be appointed. In the absence of such a provision, his appoint- ment is vested in the President, by and with the advice and consent of the Senate. (See note to Constitution, Art. II, sec. 2, clause 2, In the cases of the Postmastei General, the Sec- retary of Agriculture, the Secretary of Com- merce, and the Secretary of Labor, it is specifi- cally provided by statute that they are to be appointed by the President, by and with the advice and consent of the Senate. See sec. 388, R. S., and acts of Feb. 9, 1889, 25 Stat., 659; Feb. 14, 1903, 32 Stat., 825; and Mar. 4, 1913, 37 Stat., 736.) The Secretary of the Navy is required to take the oath of office prescribed by section 1757, Revised Statutes, which applies to all persona appointed to any office of honor or profit in the civil, military, or naval service. (See act May 13, 1884, sec. 2, 23 Stat.. 22.) The term for which the Secretary of the Navy is appointed is not fixed by statute. [The law establishing the Department of Commerce and Labor (now Department of Commerce) provided for the appointment of a head of that depart- ment, " whose term and tenure of office shall be like that of the heads of the other executive de- partments." (Act Feb. 14, 1903, 32 Stat., 825). A similar provision was embodied in the act creating the Department of Labor. (Act Mar. 4, 1913, 37 Stat., 736.) Section 388, Revised Statutes, provided that the term of the Post- master General shall be for and during the term of the President by whom appointed, and one month thereafter, unless sooner removed.] The Secretary of the Navy is removable by the President: " When the Navy Department was es- tablished in the year 1798 (1 Stat. , 553), pro vision is made for the charge and custody of the books, records, and documents of the department in case of vacancy in the office of Secretary by re- moval or otherwise. It is not here said by re- moval by the President, as is done with respect to the heads of the other departments; and yet there can be no doubt that he holds his office by the same tenure as the other Secretaries and is removable by the President. The change of Ehraseology arose, probably, from its having ecome the settled and well understood con- struction of the Constitution that the power of removal was vested in the President alone in such cases, although the appointment of the officer was by the President and Senate." 332 Navy Department. PL f. REVISED STATUTES. Sec. 415. (Matter of Hennen, 13 Pet., 259. See also note to Constitution, Art. II, sec. 2, clause 2.) In case of the death, resignation, absence, or sickness of the Secretary of the Navy, unless otherwise directed by the President, the duties of the office devolve upon the Assistant Secre- tary of the Navy (sec. 177, R. S.). During the temporary absence of the Secretary and the As- sistant Secretary of the Navy, the Chief of Naval Operations shall be next in succession to act as Secretary of the Navy. (Act Mar. 3, 1915, 38 Stat., 929, amended by act Aug.29, 1916, 39 Stat., 558.) The President, however, maydirectsome other officer in the Navy Department, or in some other department, to perform the duties of the Secretary of the Navy (sec. 179, R. S.). But neither the Assistant Secretary of the Navy nor any other officer designated by the Presi- dent, may perform the duties of the Secretary of the Navy, in case of the latter 's death or res- ignation, for a longer period than 30 days (sec. 180, R. S.); except where the vacancy hap- pens during a recess of the Senate (sec. 181, R. S.). The officer temporarily performing the duties of the Secretary of the Navy is not thereby entitled to additional compensation (sec. 182, R. S.). During the temporary absence of the Secre- tary and Assistant Secretary of the Navy and the Chief of Naval Operations the duties of the Secretary of the Navy, by direction of the President, are to be performed by the following designated persons, in the order named: The Chief of the Bureau of Navigation; in his absence, the Chief of the Bureau of Ordnance; and in the absence of those two, the Chief of the Bureau of Engineering. (File 1159-765, Bu. Nav., July 2, 1915; Navy Regs., 1920, art. 392, as amended; see also file 22724-40, Apr. 24, 1919.) Officers of the Navy on duty in the Navy Department as aids or advisers of the Secretary of the Navy, but who do not hold any office in the department to which they have been ap- pointed pursuant to law, can not be legally designated by the President to act as Secre- tary of the Navy during the latter's absence. Wliile these aids, as rear admirals, captains, or commanders, are officers in the public service of the Government, they are not officers in the department eligible for these temporary ap- pointments, and do not come within the class designated in section 179, Revised Statutes. They perform no duties imposed upon them by law; they hold no office in the department cre- ated by act of Congress; they are agents ap- pointed by the Secretary, and removable by him at Ms pleasure, to procure information needed to aid in the performance of his own official duties. There is no more authority to authorize them to perform the duties of the Sec- retary of the Navy than there is to authorize any officer of the Navy not connected directly with the business of the department. (28 Op. Atty. Gen._, 95.) [The "aids" referred to in this opinion, namely, "Aid for Operations," "Aid for Personnel," "Aid for Material," and "Aid for Inspections," were authorized by Changes in Navy Regulations No. 6, of November 18, 1909, revoked by Changes in Navy Regulations No. 5, July 15, 1915 by which latter Changes their duties were transferred to other officers.] Officers of the Navy are appointed, by pro- vision of law, to perform duties in the Navy Department which constitute them officers in the department, as, for example, the chiefs of bureaus provided for by section 421, Revised Statutes. These bureau chiefs are officers hold- ing offices in the Navy Department which have been created by law, and are witliin the class designated in section 179, Revised Statutes, as eligible for appointment to temporary vacan- cies in the ofhce of the Secretary of the Navy. (28 Op. Atty. Gen., 95.) For other decisions concerning officers tem- porarily acting as Secretary of the Navy, see notes to sections 177-182 and 868, Revised Statutes. "It is very_ clear that the office of Secretary of the Navy is a civil office. Congress has not attempted to confine the appointing power to any class or profession in choosing the incum- bent for that position." (18 Op. Atty. Gen., 176. See also U. S. v. Burns, 12 Wall., 246, holding that the Secretaiy of War "is not in the military service," but, "on the contrary, is a civil officer"; and see 1 Op. Atty. Gen., 457, holding that the Secretary of War is not required to perform duties in the field, does not compose any part of the Army, and has no service to per- form that may not be done at the seat of govern- ment.) The Secretary of the Navy is sixth in or- der of succession to the powers and duties of the Presidency, in case of the removal, death, resignation, or inability of both the President and Vice President (act of Jan. 19, 1886, 24 Stat., 1); he is ex officio a member of the Smith- sonian Institution (sec. 5579, R. S., as amend- ed); is a member of the Council of National Defense (act Aug. 29, 1916, 39 Stat., 649), and of the Commission for Memorial to John Erics- son (act Aug. 31, 1916,39 Stat., 671); is to ex- ercise control of the Aircraft Board (act Oct. 1, 1917, 40 Stat., 296); is privileged to draw books from the Library of Congress (sec. 94, R. S.); and is entitled to a set of the Supreme Court Reports for official use, to be preserved and turned over to his successor in office (sec. 227, Judicial Code, act Mar. 3, 1911, 36 Stat., 1154.) As to duties of the Secretary of the Navy, see sections 417 and 418, Revised Statutes, and notes thereto. For decisions relating generally to heads of departments, see notes to Constitution, Article II, section 2, clause 1; Article II, section 1, clause 1; and section 158, Revised Statutes. Assistant Secretary of the Navy. — The office of "Assistant Secretary of the Navy" was created by act of July 31, 1861 (12 Stat., 282), the duties thereof to be such as were prescribed by the Secretary of the Navy or required by law. An additional Assistant Secretary of the Navy was authorized, to serve for a period of six months, by act of May 26, 1866 (14 Stat., 54). The office of Assistant Secretaiy of the Navy was abolished by act of March 3, 1869 (15 Stat., 296). An Assistant Secretary of the Navy was again authorized by act of August 5, 1882(22 Stat. ,243) , wliich was repealed by act of March 3, 1883 (22 Stat., 550) [no a]>pointment ha\ang in the meantime been made]. The present law is contained in the act of July 11, 1890 (26 Stat., 254), which provides for 333 Sec. 416. Pi. 2. REVISED STATUTES. Navy Department. '■;iii Assistant Secretar>- of the Navy, to be appointed from civil liie by the President, by anil with the advice and consent of the Senate" ; and the act of Manh 3, 18!)1. (2G Stat., 934), ■\vliich provides that the Assistant Secretary of the Navy shall ''i)erforui such duties as may be prescribed by the Secretary of the Navy or required by law." It ha3 been found in regard to the heads of depart nients that it is impossible for a single individual to perform in person all the duties imposed on liim by his ollice. Hence, statutes have been made creating the olhce of assistant secretaries for all the heads of departments. It would be a very sinsjular doctrine, and sub- versive of the purposes for which these latter oliices were createcl, if their acts are to be held of no force until ratified by the principal Secre- tary or head of the department. It was to re- lieve the overburdened principal of some part of those duties that the office of assistant was created. (Parish v. U. S., 100 U. S., 504; McCollumr. U. S., 17 Ct. Cls., 101.) The duties of these assistants are generally not specifically defined by law, but are left to the direction and regulation of superior officers. Such .assistants are supposed to have the confi- dence of those immediately above them and to be oflicially engaged in carrying out the will of their principals iu the details of the work of the department in which they are employed. When their acts, decisions, or directions are reduced to writing, signed by them in their official capacity, filed or recorded among the archives of the department, and do not ajipear to have been revoked, annulled, or modified by the head of the department, they must be held, in the absence of fraud, mistake, or irreg- ularity, to have been done within the scope of the authority of the assistant, and to be as binding on the Government as though expressly ordered by the superior. Especially will this be held when copies of such written documents are sent out by the head of the department in which they are found, without objection on his part to their having been made in the due and regular course of business under his control. (McCollum V. U. S., 17 Ct. Cls., 101.) A statute (sec. 245, R. S.) providing that the Assistant Secretary of a department shall per- form certain specified duties, and such other duties as may be prescribed by the Secretary or by law, does not confine the powers of the assistant to duties of a like nature with those enumerated, especially when read in connec- tion witli sections 101 and 177, Revised Stat- utes, which impose more enlarged duties in certain contingencies. (Shillito Co. v. Mc- Clung, 51 Fed. Rep., 8G8.) Where the law provides that the Assistant Secretary in a department is to perform such duties "as shall be prescribed by the Secretary, or may be required by law," it empowers the Secretary to make the assistant, as it were, his deputy m all things. So long as the powers delegated to the assistant by his su))erior remain Tinrevoked, the authority of the former is coor- dinate and concurrent with tliat of the latter. As to the authority so prescribed tlie Assistant Secretary has the full power of the Secretary himself. Accordingly, the Assistant Secretary, while in the exercise of authority prescribed for him by the Secretary, is authorized to give orders for purchases payable from the contin- gent fund and to approve vouchers therefor, although under section 3()83, Revised Statutes, heads of departments are alone authorized to give such orders and approve such vouchers. (18 Op. Atty. Gen., 432, modifying 18 Op. Atty. Gen., 424.) So long as the powers delegated to the Assist- ant Secretary by his superior remain unre- voked, the authority of the former is coordinate and concurrent with that of the latter. When the assistant acts at a time the Secretary is not absent or sick, under a regulation made by the Secretary prescribing his powers and duties, he should sign with his own proper oflicial desig- nation. When the Secretary is absent or sick, if the assistant is in charge of the department in pursuance of sections 177 or 179, Revised Statutes, he should sign as Acting Secretary. (19 Op. Atty. Gen., 133.) As to legal proceedings which may be insti- tuted in the case of an officer who signs as "Act- ing Secretary" while the Secretary is at the department, see note to section 868, Re\Tsed Statutes. An officer temporarily performing the duties of his superior in accordance \vith law is au- thorized to serve as member of a board which by statute included his superior in its member- ship. (20 Op. Atty. Gen., 483; see also file 22724--i0, Apr. 24, 1919.) For other decisions as to authority of Assist- ant Secretary, see note to section 177, Revised Statutes. Sec. 416. [Clerks and Employees. Repealed.] This section provided as follows: "Skc. 410. Theie shall be in the Department of the Navy: "One chief clerk, at a salary of two thousand five hundred dollars a year, so long as there is no A.ssistant Secretary of the Navy, and at a salary of two thousand two hundred dollars a Sear when there is an Assistant Secretary of the avy. "One disbursing clerk. "One superintendent of the Navy Depart- ment building, at a salary of two hundred and fifty dollars a year. "In the Bureau of Yards and Docks: "One civil engineer, at a salary of three thou- sand dollars a year. "One chief clerk, at a salary of one thousand eight hundred dollars a year. "One draughtsman, at a salary of one thou- sand eight hundred dollars a year. "In the Bureau of Equipment and Re- cruiting: "One chief clerk, at a salary of one thousand eight hundred dollars a year. "In the Bureau of Construction and Repair: "One chief clerk, at a salary of one thousand eight hundred dollars a year. "One draughtsman, at a salary of one thou- sand eight hundred dollars a year. "In the Bureau of Steam Engineering: "One chief clerk, at a salary of one thousand eight hundred dollars a year. 334 Navy Department. PL 2. REVISED STATUTES. Sec. 416. "Oue draughtsman, at a salary of one thou- sand eight hundred dollars a year. "One assistant draughtsman, at a salary of one thousand two hundred dollars a year. "In the Biu-eau of Navigation: "One chief clerk, at a salary of one thousand eight hundred dollars a year. "In the Bureau of Ordnance: "One chief clerk, at a salary of one thousand eight hundred dollars a year. "One draughtsman, at a salary of one thou- sand eight hundred dollars a year. "In the Bureau of Provisions and Clothing: "One chief clerk, at a salary of one thousand eight hundred dollars a year. "In the Bureau of Medicine and Surgery: "One chief clerk, at a salary of one thousand eight hundred dollars a year." 5 July, 1862, c. 134, V. 12, p. 510; 2 .July. 1864, c. 219, s. 4, V. 13, p. 373; 23 Julv, 1866, c. 208, s. 8, v. 14, p. 207; 3 Mar., 1871,' c. 113, s. 3, v. 16, p. 494; 3 Mar., 1873, c. 226, s. 1, v. 17, pp. 501, 502. It is superseded and repealed by the following laws: Act August 5, 1882, section 4 (22 Stat., 255): "That no civil officer, clerk, draughtsman, cop\dst, messenger, assistant messenger, me- chanic, watchman, laborer, or other employee shall after the first day of October next be em- ployed in any of the executive departments, or subordinate bureaus or offices thereof at the seat of government, except only at such rates and in such numbers, respectively, as may Ije specific- ally appropriated for by Congress for such cler- ical and other personal services for each fiscal year; * * * and after the first day of Oc- tober next * * * all laws and parts of laws authorizing the employment of officers, clerks, draughtsmen, copj-ists, messengers, assistant messengers, mechanics, w-atchmen, laborers, or other employees at a different rate of pay or in excess of the numbers authorized by appropria- tions made by Congress, be and they are hereby, repealed * * *." Act of August 23. ] 912, section 5 (37 Stat. , 414) : ' ' Any person violating section four of the legis- lative, executive, and judicial appropriation Act approved August fifth, eighteen hundred and eighty-two (Statutes at Large, volume twenty-two, page two himdred and fifty-five), shall be summarily removed from office, and may also upon conviction thereof be punished by a fine of not more than one thousand dollars or bv imprisonment for not more than one vear." Act of July 16. 1914 (38 Stat., 509), making ap- propriations for the legislative, executive, and judicial expenses of the Government for the fiscal year 1915: "That all laws or parts of laws to the extent they are inconsistent with rates of salaries or compensation appropriated by this Act are repealed, and the rates of salaries or compensation of officers or employees herein appropriated shall constitute the rate of salary or compensation of such officers or employees, respectively, until otherwise fixed by annual rate of appropriation or other law." Act of March 4, 1915 (38 Stat., 1049, sec. 6), maldng appropriations for the legislative, exec- utive, and judicial expenses of the Government for the fiscal year 1916: "The officers and em- ployees of the United States whose salaries are herein appropriated for are established and shall continue from year to year to the extent they shall be aj)pro])riatod for ]>y Congress." Specific changes made hj existing law in this section of the Re\ised Statutes are as fol- lows: The position of ■ ' superintendent of the Na\'>' Department building, at a salary of $250 a year," is aboli-shed, and an officer of the Army or Navy is detailed as superintendent of the State, War, and Na\'A' Department Building, pursuant to act of March' 3, 1883 (22 Stat., 553 1, his duties being performed under the supervision of a commis- sion consisting of the Secretaries of State, War, and Na\^ (.same act), and embracing the "Navy Department Annex," pursuant to act of May 22, 1908 (35 Stat., 218 1, and subsequent appropria- tions in the annual legislative, executive, and judicial ajipropriation act. The Bureau of Equipment and Recruiting was designated as Biu^eau of Equipment in an- nual appropi iation acts commencing with the fiscal year 1892. By naval appropriation acts for the fiscal years 1912, 1913, and 1914pro\-ision was made for distribution of the duties, funds, and employees of the Bureau of Equipment among the other bureaus and offices of the Na\^' Depart- ment, and by act of June 30, 1914 (38 Stat., 408), the Bureau of Equipment was abolished. The Bureau of Provisions and Clothing was designated as Bureau of Supplies and Accounts by act of July 19, 1892 (27 Stat., 243, 245). The Bureau of Steam Engineering was desig- nated as the Bnreau of Engineering bv act of June 4, 1920 (41 Stat., 828)_. The position of civil engineer in the Bureau of Yards and Docks, at S3, 000 per annum, was appropriated for in the legislative, executive, and judicial appropriation acts, including the act of March 3, 1873 (17 Stat., 501), but was omitted from the legislative, executive, and judicial appropriation act of June 20, 1874 (18 Stat., 102), and subsequent years. (See sec. 1413, R. S., and note thereto, concerning Civil Engineer Corps of the Navy.) The chief clerk in the office of the Secretary of the Navy receives an annual salarj^ of 83,000, this increased compensation being first pro- vided for by act of March 3, 1901 (31 Stat., 992). Prior to that act his salary was $2,500 a year, although an Assistant Secretary of the Navy had been authorized, without interruption, since the act of July 11, 1890 (26 Stat., 254). Thus his salarj' was not reduced to $2,200 a year "when there is an Assistant Secretarj- of the Na\'3\ " as proA-ided in this section. The disbursing clerk in the Na\y Depart- ment received an annual salaiy of $2,250 bv the act of March 3, 1883 (22 Stat!, 553) and sub- sequent acts, including the act of May 29, 1920 (41 Stat., 663). Specific provision for salary of a disbursing clerk in the Navy Department was omitted in the appropriation act of March 3, 1921 (41 Stat., 1282), the position of " dis- bursing officer," at $3,()00 per annum having in the meantime been created from lump sum appropriations. (See estimates of appropria- tions, 1922, p. 102.) As to appointment and compensation of disbursing clerks in the several departments, see section 176, Re\ised Statutes, and note thereto. The chief clerks in the Bureaus of Yards and Docks, Construction and Repair, Engi- 335 Sec. 416. Pt. 2. REVISED STATUTES. Navy Department. neering, Navigation, Ordnance, and Medicine and yurgerv' nave received an annual salary of i?2,li50 since the act of March 4, 1913 (37 Stat., 7(18, 771). The chief clerk in the Bureau of Supplies and Accounts was designated as "'civilian assistant" and his compensation increased to $2,500 by act of Februarj- 25, liio:? (32 Stat., 890). An ''appointment clerk."' at $1,800 per an- num, ^va.s provided for in the oflice of the Sec- retary, Navy Department, hy act of May 2S, 1896 (29Stat., Iti4), which was amended by actof June 8, 1896 (29 Stat., 285), providing for a "clerk in charge of civil employments and labor regu- lations at navy yards, who shall also perform the duties of appointment clerk of the Nav-y De- partment,'' at $2,250 per annum. This latter provision was repeated, with an immaterial modilication in language, in the acts of Febru- ary 19, 1897, and March 15, 1898, but has since been omitted and is not now in force. An "ap- pointment clerk," at $2,000 per annum was appropriated for by act of May 10, 1916 (39 SUit., 94;, and following vears, until the act of March 1, 1919, (40 Stat., 1241), which increased the salary of the appointment clerk to $2,250. The following additional positions are specilically authorized in the Navy Depart- ment, at annual salaries in excess of $1,800, by the legislative, executive, and judicial appro- priation act of March 3, 1921 (41 Stat., 1282): Olhce of the Secretary: Private secretary to Secretary, $2,500; clerk to Secretary, $2,250; private secretary to Assistant Secretary, $2,400; clerk to Assistant Secretary, $2,000; printing clerk, $2,000. Office of Solicitor: Solicitor, $4,000; law clerks, one at $2,500, one at $2,400, one at $2,250, and two at $2,000 each. Office of Naval Records and Library: Chief clerk, $2,000. Office of Judge Advocate General: Attorneys, two at $2,500 each; chief law clerk, $2,250; law clerks, one at $2,200 and one at $2,000. Office of Chief ot Naval Operations: Chief clerk, $2,250. Office of Director of Naval Communications, one at $4,000, two at $3,000 each, one at $2,500, and three at $1,900 each. Bureau of Navigation: Clerks, one at $2,200, two at $2,000 each. Hydrographic Office: Hydrographic engi- neer, $3,000; assistants, one at $2,200 and one at $2,000; chief engraver, $2,000. Naval Observatory: Astronomers, one at $3,200 and one at $2,800; assistant astronomers, one at $2,400 and one at $2,000. Nautical Almanac Office: Assistants in pre- paring for publication the American Ephemeris and Nautical Almanac, one at $2,500 and one at $2,000. Bureau of Construction and Repair: Chief of section, $2,000. Bureau of Supplies and Accounts: Principal clerk, $2,250; two chief bookkeepers, at $2,000 each. The minor positions specifically authorized in the A-arious bureaus and offices of the Navy Department are set forth in detail in the annual legislative, executive, and judicial appropria- tion act. The same act. in addition, author- izes the employment of draftsmen and other technical ser\ ices in the Bureaus of Engineer- ing, Construction and Repair, Ordnance, and Yards and Docks, to be paid for from the annual appropriations made by the naval appropria- tion act for ''Engineering,'' "Construction and re})air,'' "Ordnance and ordnance stores," and Aarious appropriations and allotments under the Bureau of Yards and Docks. The number of employees so authorized from "lump-sum" appropriations is not specified, but it is pro- vided that the rates of compensation to be paid such employees in the Bureaus of Engi- neering, Construction and Repair, and Ord- nance shall not exceed those paid under similar authorization j)rior to January 1. 1920. The total amounts to be ])aid for this purpose are lixed at a delinite sum each year, the amounts authorized for the fiscal year 1922 by the legis- lative, executive, and judicial appropriation actof March 3, 1921 (41 Stat., 1285, 1286), being as follows: Bureau of Engineering, $190,000; Bureau of Construction and Repair, $275,000; Btu'eau of Ordnance, $70,000; Bureau of Yards and Docks, $200,000. A statement of the per- sons employed from such lump-sum appropria- tions, their duties, and the compensation paid to each is required by a provision contained in the authorization therefor to "be made to Con- gress each year in the annual estimates." (See also Act Aug. 29, 1916, 39 Stat., 558.) Additional civil force in the Navy Depart- ment ' 'on accomit of the existing emergency, ' ' was authorized in various appropriation acts, commencing Avith the act of June 15, 1917 (40 Stat., 202). Lump-sum appropriations are not avail- able for payment of personal services at a rate of compensation in excess of that paid for the same or similar services during the preceding fiscal year; and no person employed at a specific salary can be transferred and paid from a lump- simi appropriation a rate of compensation greater than such specific salary. These restrictions are not applica1)le to mechanics, artisans, their helpers and assistants, laborers, or any other employees whose duties are of similar character and required in carrying on the various manufacturing or constructing operations of the Govermnent. (Act Aug. 26, 1912, sec. 7, 37 Stat.. 626, amended by act Mar. 4, 1913, sec. 4, 37 Stat., 790; see 20 Comp. Dec, 128; 20 Comp. Dec, 131: 20 Comp. Dec, 10; 19 Comp. Dec, 248. See also acts Oct. 6, 1917, 40 Stat., 383 and Mar. 28, 1918, 40 Stat., 498.) Restrictions on employment of clerical services. — It is provided in the annual legis- lative, executive, and judicial appropriation act that "no part of any appropriations made for the naval service shall be expended for any of the purposes, including freight, herein pro- vided for on account of the Navy Department in the District of Columbia, except for personal services in certain bureaus, as herein expressly authorized" (namely, the services of draftsmen and other technical services, as above men- tioned, in the Bureaus of Engineering, Con- struction and Repair, Ordnance, and Y'ards and Docks). See, for example, act of March 3. 1921 (41 Stat., 1287). It is also provided by the annual legislative, executive, and judicial appropriation act that personal services or other expenditures are not 336 Navy Department. Pt.2. REVISED STATUTES. Sec. 416. to be authorized under the Hydrographic Office in the District of Columbia, except as appro- priated for under the Navy Department in that act, or under appropriations for the public printing and binding. See, for example, act of March 3, 1921 (41 Slat., 1285). It is also provided by the annual naval appro- priation act ' ' that no part of any sum appropri- ated by this act shall be used for any expense of the Na^-y Department at Washington, Dis- trict of Columbia, unless specific authority is given by law for such expenditure." See, for example, act of June 4, 1920 (40 Stat., 833). It is not lawful for the Secretary of the Na\'y to employ in the Navy Department at Wash- ington, D. C, and pay out of appropriations for new ships, any civilian expert aids, addi- tional draftsmen, writers, copyists, and model makers, except as specifically authorized. (Act Mar. 18, 1904, sec. 1, 33 Stat., 117.) Civil employees paid from appropriations for the Naval EstabUslunent or other branch of the public service outside of the District of Co- lumbia, can not be detailed for duty in any division of any executive department in the District of Colmnbia. (Act June 22, 1906, sec. 6, 34 Stat., 449; similar provision is con- tained in act Aug. 5, 1882, sec. 4, 22 Stat., 255.) [But Washington may be chosen as a local headquarters by the "field force" of an executive department, provided such force is not used to augment the ' " departmental estab- lishment" by engaging in departmental ac- ti\ities (21 Comp. Dec, 709).] Persons in the classified service at Washing- ton, District of Columbia (except the Depart- ment of Justice in certain cases), shall not be detailed for service outside of the District of Co- lumbia, except for or in connection ^vith work pertaining directly to the service at the seat of government of the Departmeut or other Gov- ernment establishment from which the detail is made. _ (Act Mar. 3, 1917, 39 Stat., 1121, repeated in legislative, executive and judi- cial appropriation acts for subsequent years.) As to detail of enlisted men for duty in an executive department, see statutes cited above imder "Restrictions on employment of clerical 8er\ices," and see act of June 19, 1878, (20 Stat., 196), authorizing the employment of "not ex- ceeding 10 enlisted men" in the office of the Chief of Ordnance, War Department. See also act of June 3, 1916 (39 Stat., 188, sec. 35), re- garding employment of enlisted men in civil occupations. Officers of the Navy may be detailed for duty in the Navy Department, but where such an officer on the active list is appointed to the office of draftsman in the Hydrographic Of- fice he is not entitled to both salaries, although he holds both offices. In such case he is enti- tled to the larger salary when different salaries are attached to the two offices. (Winchell v. U. S., 28 Ct. Cls., 30; 5 Comp. Dec, 885. See note to sec 431 R. S.; and see 19 Op. Atty. Gen., 503; 28 Op. Atty. Gen 95.) Not exceeding four naval officers may be de- tailed as necessary to the Hydrographic Office by the Secretary of the Navy. (Act Mar. 4, 1917, 39 Stat., 1172. See note to sec. 431, R. S.) "The Secretary of the Navy is authorized to detail such naval officers as may be neces- sary to the Hydrographic Office". (Act July 1, 1918, 40 Stat., 708.) An officer on the retired list of the Navy may take the civil-service examination, and his status on the retired list does not preclude him from accepting a clerical position, assvmiing the compensation of such position to be less than $2,500 per annum, subject to possible recall to active dutv. (File 4901-1904; 5650-1900; 4642-1903.) " A retired officer of the Navy whose retired pay amounts to $2,500 per annum is within the prohibition of section 2 of the act of July 31, 1894 (28 Stat., 205), and is ineligible to hold office as clerk of class 3 under the Ci\dl Service Commission. (29 Op. Atty. Gen., 503.) A retired officer can not hold an office in the diplomatic or consular service . (Sec. 1440, R. S . ; 15 Op. Atty. Gen., 306; Badeau v. U. S., 130 U. S., 439.) The emplojrment of retired enlisted men of the Navy in ci\-il positions under the United States is not contrarv to any Federal law or Navy regulation. (File 7657-123, Dec. 29, 1911; file 7657-57.) See "Provisions applicable to all the executive departments," Title IV, sections 158-198, Revised Statutes, and particularly sections 166-170 relating to appointment, com- pensation, and distril:iution of clerks. Civilian employees at navy yards. — For laws applicable to, see sections 1542 to 1546, Re- vised Statutes. Appointments made by Secretary of the Navy. — "No person shall be employed at a per diem, monthly, or annual compensation and paid from the appropriation for the legis- lative, executive, and judicial expenses of the Government to do any kind of clerical, draft- ing, technical, messengers' or laborers' work, except after a written appointment by the Sec- retary of the Navy or with his approval in writ- ing. Nor shall a ci\nlian be employed to per- form work of any character in the bureaus and offices of the department except by written authority of the Secretary of the Navy." (Naval Instructions, 1913, art. 52.) Appointments to office under the United States may be made only by the President, by and with the advice and consent of the Senate, the President alone, the courts of law, or the heads of departments. (See Constitution, Art. II, sec. 2, clause 2, and note thereto.) Congress has vested in the heads of depart- ments the appointment of clerks, laborers, and other employees in their departments, and this power can not be delegated. (See sec. 169, R. S., and note thereto.) Oath of office. — The oath to be taken by aU persons elected or appointed to any office of honor or profit in the civil, military, or naval service, except the President, is that prescribed by section 1757, Revised Statutes. (See act May 13, 1884,_ sec. 2, 23 Stat., 22.) [A special oath of office is required to be taken by all per- sons employed in the postal service, by sections 391 and 392, Revised Statutes, as amended by act of Mar. 5, 1874 (18 Stat., 19).] The oath of office may be taken before any officer who is authorized either by the laws of the United States or by local laws to adminis- ter oaths (sec. 1758, R. S.). The chief clerks 337 Sec. 416. Pi. 2. REVISED STATUTES. Navy Department. of the exei'uti\e departmente, aiul of the bureaus and ollices thereof in Washington, D. C, are required, on application, to adminis- ter oaths to eni]ilo\ees on a]ipointnient and promotit)n without eharginu; tlierefor (act Aug. 29, 1S!K), 2(i 8tat., 371); ane detailed to office of Judge Advocate General, if necessary, from some other office or bureau of the Navy Department in accordance with section 166, Revised Statutes. (Comp. Dec, Oct. 28, 1915, file 26254-1906.) Statutes authorizing assistant chiefs and chief clerks in the bureaus of the Navy Department are to be read in connection with section 178, Revised Statutes, ,as explaining who are authorized to act as chief of bureau during the latter's absence. Section 178 applies only to "assistants" to chiefs of bureaus who aie specifically provided for by statute. (19 Op. Atty. Gen., 503.) Recording clocks not to be used in record- ing time of clerks or other employees in any of the executive departments at Washington. (Act Feb. 24, 1899, 30 Stat., 864.) No part of the appropriations for the naval service shall be available for salary of any per- son making, with a stop watch or other time- measuring device, a time study of any job of any employee of the United States Government or of the movements of any such employee; nor for use as premium or bonus or cash reward to any employee in addition to his regular wages, except for suggestions of improvements or econ- omy in the operation of any Government plant. (See act Mar. 4, 1917, 39 Stat., 1195.) 341 Sec. 41"; Pt.'2. REVISED STATUTES. Navy Department. Sec. 417. [Duties of the Secretary of the Navy. J The Secretary of the Navy shall execute such orders as he shall receive from the President relative to tlie procurement of naval stores and materials, and the construction, armament, o((iii])ment, and employment of vessels of war, as well as all other matter's con- nected ^vith the naval establishment. [See title Public contracts. Also sees. 3660-3667,3669.]— (30 Apr., 1798, c. 35, s. 1, v. 1, p. 353.) Aumial reports required to be made to Congress by Secretary of the Navy — see section 429, Re\ised Statutes. Appointment of employees in the Navy De- partment to be made by the Secretary of the Navy — see section 169, Revised Stat- utes. Appro])riations for Navy Department controlled and expended by direction of the Secretary of the Navy. (Sec. 307(1, R. S.) Arlington Memorial Ampitheater, Secretary of the Navy to serve on commission to make annual recommendations as to memorials, entombments, etc., in. (Act Mar. 4, 1921, 41 Stat., 1440.) Business of Navy Department to be distrib- uted by Secretary of the Navy between the bureau's and offices therein. (Sees. 161 and 419, R. S.) Coast Guard to be under the orders of the Sec- retary of the Navy in time of war or when the President may direct. (Act Jan. 28, 1915, 38 Stat., 800.) Congressional Record, daily examination of, to be required by the Secretary of the Na\^ in his department. (Act Jan. 12, 1895, sec. 90, 28 Stat., 623.) Contracts and piu-chases of supplies to be under the direction of the Secretary of the Navy. (Sec. 3714, R. S., as amended by act Feb. 27, 1877, sec. 1, 19 Stat., 249; see also sec. 3747, R. S.; sees. 3718-3730, R. S.) Courts-martial and courtsof inquiry may be con- vened by the Secretary of the Navy. (Sec. 1624, R. S., art. 38, as amended by act Feb. 16, 1909, sec. 10, 35 Stat., 621; and sec. 1624, R. S., art. 55.) Courts-martial proceedings may be set aside, or their sentences remitted or mitigated by the Secretary of the Navy. (Sec. 1624, R. S., as amended by act Feb. 16, 1909, sec. 9, 35 Stat. 621.) Custody of property appertaining to the Navy Department to be in the Secretary of the Navy. (Sec. 418, R. S.) _ Desertion charge entered against enlisted men during Civil War may be removed by Sec- retary of the Navy. (Act Aug. 14, 1888, 25 Stat., 442, as amended by act May 24, 1900, 31 Stat., 183.) Discharge certificates in true names to be issued by Secretary of the Navy, in certain cases to persons who served in Navy under as- sumed name.-?. (Act Aug. 22, 1912, 37 Stat., 324.) Duplicate discharge certificates may be issued by Secretary of Navy to officers and men in certain cases in lieu of lost discharges. (Act Feb. 7, 1890, 26 Stat., 6.) Duties of bureaus in the Navy Department to be under the direction of the Secretary of the Navy. (Sec. 420, R. S.) Duties of Chief of Naval Operations to be under the direction of the Secretary of the Navy. (Act Mar. 3, 1915, 38 Stat., 929.) Duties of Judge Advocate General to be under the direction of the Secretary of the Navy. (Act June 8, 1880, 21 Stat., 164, as amended by act June 5, 1896, 29 Stat., 251.) Estimates to be submitted annually to Con- gress by Secretary of the Navy through the Secretaiy of the Treasury. (Sees. 3660, 3669, R. S.; see references under sec. 430, R. S.) Insane persons belonging to the Navy or Ma- rine Corps to be placed in hospitals for the insane upon order of the Secretary of the Navy. (Sees. 1551 and 4843, R. S. ; act Feb. 9, 1900, 31 Stat., 7.) Marine Corps, subject to the orders of the Secre- tary of the Navy except when detached by • President for duty with the Army. (Sec. 1621, R. S.) ]Midshipmen may be appointed to Naval Acad- emy by Secretary of the Navy w ithout con- gressional nomination. (Acts June 29, 1906 34 Stat., 578; June 30, 1914, 38 Stat. 410; Feb. 15, 1916, 39 Stat., 9; Aug. 29 1916, 39 Stat., 576; Mar. 4, 1917, 39 Stat. 1182; Dec. 20, 1917, 40 Stat., 4.30.) Midshipmen may be dismissed by Secretary of Navy upon written approval of the Presi- dent. (Act Apr. 9, 1906, sec. 1, 34 Stat. 104.) Midshipmen on graduation may be assigned by Secretary of the Navy to fill vacancies in Marine Corps or Staff Corps of the Navy. (Act July 9, 1913, 38 Stat., 103.) Navy-yard employees, number and compensa- tion of clerical, drafting, inspection, and messenger force to be fixed by Secretary of the Navy. (Act Mar. 3, 1909, 35 Stat., 754.) Ocean mail vessels to be constructed according to plans approved by Secretary of the Navy, with reference to their conversion into auxiliary naval cruisers; Postmaster General not to employ any vessel in ocean mail service which is not approved bv the Secretary of the Navy. (Act Mar. 3, 1891, sec. 4, 26 Stat., 831.) Officers may be furloughed by the Secretary of the Navy (sec. 1442, R. S.) ; maybe assigned to duty on ocean mail vessels with furlough pay (act Mar. 3, 1891, sec. 7, 26 Stat. 832); may be employed on active duty after re- tirement (sees. 1462--14G5, R. S.; acts Aug. 22. 1912, 37 Stat., 329, and July 1, 1918, 40 Stat., 717); settlement of claims for travel- ing expenses under the control of the Secretary of the Navy (act Mar. 3, 1909, 35 Stat., 774.) Official Register of the United States: Informa- tion for publication in, must be fm'nished biennially by the Secretary of the Navy 342 Navy Department. Pt. 2. REVISED STATUTES Sec. 417. to the Director of the Census. (Act Jan. 12, 1895, sec. 73, 28 Stat., 618, as amended by act June 7, 1906, 34 Stat., 219, and act Oct. 22, 1913, 38 Stat., 224.) Opinion of the Attorney General may be ob- tained by the Secretaiy of the Navy upon questions of law pending in the Navy De- partment (sees. 356, 357, R. S.); decision of the Comptroller of the Treasiuy may be obtained by the Secretary of the Navy upon any question involving a pajinent to be made by or under the Secretary (act July 31, 1894, sec. 8, 28 Stat., 208); and a report by the Court of Claims of its findings of fact and conclusions of law may be ob- tained by the Secretary of the Navy for his guidance upon any claim or matter pending in the Navy Department which involves controverted questions of fact or law. (Judicial Code, act Mar. 3, 1911, sees 148-150, 36 Stat., 1137, 1138; Berger v.V. S.,36Ct. Cls.,243, 247.) Regulations for the Na\y Department and Naval Establishment are to be issued by the Secretary of the Navy. (Sees. 161 and 1547, R.S.; see also sees. 1548, 1549, 1620, 1621, and 1624, art. 34, R. S.; acts Feb. 9, 1889, 25 Stat., 658; May 22, 1896, 29 Stat., 133; May 13, 1908, 35 Stat., 128, amended Aug. 22, 1912, 37 Stat., 329; May 13, 1908, 35 Stat., 153; Feb. 16, 1909, sees. 5, 14, 35 Stat., 621, 622; Mar. 3, 1909, 35 Stat., 768; June 24, 1910, 36 Stat., 619; Aug. 22, 1912, 37 Stat., 341; Mar. 4, 1913, 37 Stat., 909; Feb. 16, 1914, 38 Stat., 283; Mar. 3, 1915, 38 Stat., 930, 939, 941, 942, 943; etc.). Requisitions on Treasury for moneys appro- priated for the Navy, to be made by the Secretary of the Navy. (Sec. 3673, R. S.) Requisitions on Treasury for advances to dis- bursing officers to be made bv the Secre- tary of the Navy. (Act June' 19, 1878, 20 Stat.. 167.) _ Smithsonian institution. Secretary of the Navy is member of. (Sec. 5579, R.S.,asamended. See also note to sec. 415, R. S.) State, War, and Navy Department Building to be under the care and super\'ision of a com- mission composed of Secretaries of State, War, and Navy. (Act Mai'. 3, 1883, 22 Stat., 553.) Superintendence of Na\'y hospitals (sec. 4807, R. S.) and of Naval Home (sec. 4811, R. S.) to be under the Secretary of the Navy. Trustee of Na\'y Pension Fund, Secretary of the Navy to be. (Sec. 4750, R. S.) Vessels to be named by Secretary of the Navy (sees. 1531-1533, R. S. ; act May 4, 1898, 30 Stat., 390; act May 13, 1908, 35 Stat., 159); may be loaned by Secretary to nautical schools (act Mar. 4, 1911, 36 Stat., 1353). Naval equipment may be loaned to military schools. (Act Mar. 3, 1901, 31 Stat., 1440, as amended by act June 29, 1906, 34 Stat., 620, and act June 24, 1910, 36 Stat., 613.) Y. M. C. A. buildings in navy yards and stations may be furnished heat and light without charge, in the discretion of the Secretary of the Na\'y. (Act Mar. 4, 1911, 36 Stat., 1274.) "The Secretary of the Navy represents the President, and exercises his power on the subjects contided to his department." (U. S. V. Jones, 18 How., 92.) As a general rule, no appeal lies to the Presi- dent from the head of a department, whose acts are presumed to be the acts of the President himseh. (9 Op. Atty. Gen., 462.) However, in the naval service appeals may be taken to the President from the orders or decisions of the Secretary of the Navy. (Art. 5323, Naval Instructions, 1913.) "The President acts and speaks through the heads of the departments, and the acts of the head of an executive department must be pre- sumed to be by the direction of the President." (Weller v. U. S., 41 Ct. Cls., 324, holding that the Secretary of the Navy acts for the_ Presi- dent in appointing and dismissing midshipmen. But see act Apr. ''9, 1906, sec. 1,34 Stat. 104, providing for dismissal of midshipmen by the Secretary of the Navy "upon ^vritten approval of the President.") The Secretary of the Navy's action in ad- vancing money to contractors is the action of the President within the terms of the statute relating thereto. "In reference to this subject it may be said, with even more propriety than in Wilcox V. Jackson [13 Pet., 498, 513] that whatever the President is to do, he is to do through and by the Secretary. So far as the authority of the President was necessary, I must consider him as speaking and acting tluough the Secretary to whom the subject was com- mitted by Congress. I must presume, in the absence of all evidence, that the advances made were with his approbation and under his direc- t ion within the meaning of the act of Congress. ' ' (U. S. V. Cutter, 25 Fed. Cas. No. 14911.) An order issued by the Secretary of the Navy is presumed to be issued with the approval of the President and meets the requirements of section 1547, Revised Statutes, although it does not bear the express approval of the President; and this applies even though the order pay be in conflict with a prior regulation which was expressly approved by the President. (Adams i;. U. S.,42 Ct. Cls., 211.) The Secretary of the Navy may sign commis- sions issued to officers; but "it is proper" that the commission should declare the act to be an act of the President, performed by the head of the department as his representative. (22 Op. Atty. Gen., 82. See also O'Shea v. U. S., 28 Ct. Cls., 392; 25 Op. Atty. Gen., 292.) The transfer of a part of the naval station in Porto Rico to the Government of Porto Rico in accordance with law may be made by the Secretary of the Navy, since in contemplation of law the acts of the heads of the executive departments are the acts of the President; but it would be preferable to have the formal transfer effected by Presidential proclamation. (29 Op. Atty. Gen., 205.) By the Constitution, the President is made Commander in Chief of the Army and Navy of the United States. The Departments of War and of the Navy are the channels, through which his orders proceed to them, respectively, and the Secretaries of those departments are the organs by which he makes his will known to 343 Sec. 417. PL 2. REVISED STATUTES. Navy Department. them. The orders issued by those officers are, in contemplation of law, not their orders, but the ortlers of the President of the United States. (10p.Atty.Gen..:^SO;6qp.Atty.Gen.,357,365.) Wnere an approj)riation was made "to be expencled at tlie tliscretion of the President," it evinces the utmost conscience of Conscress in the President to make proper distribution of the fund. The order of the Secretary of the Navy, in the administration of the appropria- tion, must be regarded as the order of the President, and was an exercise of the discretion vesteeying that direction, and mandamus will not lie to compel him to a contrary course. (U. S. V. Bayard, 4 Mackey, D. C, 310.) It being the duty of the Secretary of State, in the conduct of every matter which constitutes a part of the business of his department, to act "in such manner as the President shall direct, " and the acts of the Secretary in matters which the President is authorized to direct being pre- sumed to have been directed by the President the Secretary can not be compelled by manda- mus to pay over to a claimant moneys received from Spain in satisfaction of a judgment in his favor, as in refusing pajonent the Secretary is presumed to be acting under the dii-ection of the President and therefore according to law. (U. S. V. Bayard, 4 Mackey, D. C, 310; but see U. S. V. Bayard, 5 Mackey, D. C, 428.) The decision of the head of a department in restoring an attorney to good standing who had previously been disbarred can not be rcAdewed by the courts where the order of restoration is not completely satisfactory to the attorney. As the order of restoration was made in the exer- cise of the Secretary's unquestioned jurisdic- tion, the court has no power tc review his judg- ment. (U. S. V. BalUnger, 35 App. D. C, 520.) Under the Constitution the Supreme Coiut of the United States has no power to issue a writ of mandamus to the head of an executive depart- ment in the city of Washington; the issue of such writ being the exercise of an original juris- diction not conferred by the Constitution. (Marbury v. Madison, 1 Cranch, 137.) The Supreme Court of the United States has neither an original nor an appellate jurisdiction to issue a mandamus to persons holding offices under the authority of the United States. (McClung V. Silliman, 2 Wlieat., 369.) Mandamus will not lie to the head of a depart- ment to direct a subordinate official to perform a mere ministerial duty, such as countersigning a check. If the duty be a mere ministerial one, no order of the head of the department could be justification for refusal on the part of the subor- dinate to perform it. (Hitchcock v. U. S., 22 App. D. C, 275.) The United States can not be bound by a decision relating to its property rendered in mandamus proceedings against the Secretary of the Navy. The United States is not a party to such mandamus proceedings, and can not be "interfered with behind its back." (Gold- berg V. Daniels, 231 U. S., 218.) As to jurisdiction of the courts with reference to the appointment, removal, and assignment to duty of public officers, see cases noted under section 416, Revised Statutes. 846 Navy Departraent. Pt.2. REVISED STATUTES. Sec. 417. As to freedom of Federal officers from inter- ference by State courts, see note to Constitution Article I, section 8, clause 13. For other decisions on subject of mandamus, see note to section 236, Re\ised Statutes. When courts will interfere with business of department.— While the head of a govern- mental department is not subject to mandamus in any matter involving the exercise of discre- tion, this writ may issue against him in relation to matters wherein he performs a mere ministe- rial duty. (Marbury v. ]\Iadison, 1 Cranch, 137 ; Kendall v. U. S., 12 Pet., 524; Board of Liqui- dation of Louisiana v. McCombs, 92 U. S., 531.) In a case where it is sought by mandamus to compel a public officer to perform a certain act, the question is whether the act is of a ministe- rial or of a judicial character, as those terms have been defined and Hmited by the courts; for there is no ministerial act to which the wut would be applicable that does not in some meas- lu-e and to some extent involve ttie exercise of judgment and discretion; and there are acts apparently judicial which ai-e not such in con- templation of law. (Payne v. U. S., 20 App. D.C., 581.) Mandamus may issue to command an execu- tive officer to act and to decide, though his act and decision involve the exercise of judgment and discretion; but in such case it may not di- rect him in what particuar way or in whose favor he shall decide. (Kimberhn v. Commission, 105 Fed Rep., 653.) Courts will not compel executive officers to perform their ofiicial duties, even though such duties require an iuterpretatioti of the law, unless they refuse to act at all, or the act which it is sought to compel them to perform is purely ministerial. (U. S. v. Windom, 137 U. S., 636.) While the exercise of discretion by executive officers acting witliin the scope of their au- thority will not be questioned by mandamus, when such ofiicers exceed their authority and act without warrant of law, mandamus will lie. (Griffin v. U. S., 30 App. D. C, 177, 188, 190; 31 App. D. C, 231, 232, 233, 234.) The court is powerless to direct the action of an executive officer by mandamus unless a positive legal right is being invaded by him in violation of a duty clearly imposed upon him by law; and such duty must be so plain and positive that he has no discretion left. (Moore V. U. S., 32 App. D. C, 243.) While the action of an officer clothed with a discretion is not reviewable if exercised upon matters left to his discretion, yet his judgment as to the extent of his discretion under the law, and the matters on which it may be exercised, are re^^ewable on mandamus; and where a discretion is abused and made to work injustice, it may be controlled by mandamus. (U. S. v. Custis, 35 App. D. C, 247; see also U. S. v. Cortelyou, 26 App. D. C, 298.) The necessary ground of an application for the writ of mandamus against an executive officer of the LTuited States is that it shall appear that he has been charged by law with the perform- ance of a specific official duty to which the petitioner is entitled, and that he refuses to perform that duty. (U. S. v. Bayard, 4 Mackey, D.C.,310.) While the lawful exercise of discretion by public agents and officei's can not be controlled by mandamus, the writ will Lie to compel the person or body in whom the discretion is lodged to proceed to exercise its discretion, and in case the manner of such exercise has been prescribed by law, to compel the person or body not to proceed in any other way. (Huidekoper II. Hadley, 177 Fed. Rep., 1.) Mandamus is the proper remedy, and the only remedy to compel the auditor of the Panama Canal to pay the United States judge for the Canal Zone the salary proAdded by law for the latter, the auditor's refusal being based upon an alleged indebtedness of the judge to the United States. (Smith r. Jackson, 241 Fed. Rep., 747; affirmed Smith r. Jackson (246 U. S., 388). Mandamus will lie to compel the Secretary of State to pay over money to which, under an act of Congress, the petitioner has a clear legal right; and the Secretarj^ can not justify under an order from the President. (U. S. v. Bayard, 5 Mackey, D. C., 428.) Mandamus will lie to compel the members of the Board of Labor Employment at tlie United States usivy yard in the city of Washington, to register an applicant for examination for em- ployment as mechanic or laborer, where they rest their refusal solely on the gi'ound that the applicant is not a citizen of the United States, although a resident of Porto Rico, and owing allegiance to the United States. Rule 5 of the Civil Service Commission, promulgated by the President April 15, 1903, which modifies previous regulations of the Navy Department, provides that "no person shall be admitted to examination unless he be a citizen of or owe allegiance to the United States"; and that an applicant who claims citizenship by virtue of residence in Porto Rico and who shows birth or naturalization in Porto Rico, will not be required to show further evidence of citizen- ship. (U. S. V. Bowyer, 25 App. D. C, 121.) The members of the United States Board of Labor Employment at the United States navy yard in the city of Washington are ministerial officers, and their duty to register an applicant for employment does not cease to be ministerial because they rest their refusal of the registration on the determination of a pure question of law, involving the ascertainment of no fact what- ever. (U. S. V. Bowyer, 25 App. D. C, 121-) The covu-ts of the District of Columbia have power by mandamus proceedings to compel the head of an executive department in the city of Washington to do a ministerial act. (Kendall V. U. S., 12 Pet., 524; affirmed Decatur v. Paulding, 14 Pet., 497.) A cabinet officer may be enjoined from doing an act which was not authorized by the statutes under which he assumed to act. (American School of Magnetic Healing v. McAnnulty, 187 U. S., 94; see also Caldwell v. Robinson, 59 Fed. Rep., 053; Frayser v. Russell, 9 Fed. Cas. No. 5067; Kirwin v. Murphy, 83 Fed. Rep., 275, 170 U. 8., 205; Sang Lung v. Jackson, 85 Fed. Rep., 502; Wong Wai v. Williamson, 103 Fed. Rep., 1; Lane v. Watts, 234 U. S., 525, affinuing 41 App. D. C, 139.) 54641°— 22- ■23 347 Sec. 417. Pt.e. REVISED STATUTES. Navy Department. \Miere a Cabinet officer reopens and read- judicates a case decided by iiis predecessor, there being no contention that tlie loriuer deci- ftion was obtained by fraud, and the hiw ])ro- viding that such decision sliuuhl bi* "final and conclusive," a court of equity has jurisdiction to re(|uire such officer to recop:nize and enforce the prior decision. (Mickadiet r. Lane, 43 App. 1). ('., 41i.) Subpcenas for heads of departments. — See note to Constitution. Article II, section 1, clause 1, and section 871, Revised Statutes; see also note to section 418, Revised Statutes, concerning power of courts to compel produc- tion of public records and documents. Decisions of heads of departments not binding on courts. — If a suit should come before the Supreme Court which Involved the construction of any of the laws imposing duties on the heads of the executive departments, the court certainly would not be bound to adopt the construction given by the head of the depart- ment; and if they supposed his decision to be wrong, they would of course so pronounce their judgment. But the judgment of the court upon the construction of a law must be given in a case in which they have jurisdiction, and in which it is their dutv to interpret the act of Congress. (Decatur v. Paulding, ]4 Pet., 497.) Whatever the conclusiveness of executiv'e acts so far as executive departments are con- cerned, IS a rule of administration, it has long been settled that the action of executive officers in matters of account and pajonent can not be regarded as a conclusive determination when brought in question in a court of justice. (Wis- consin Cent. R. Co. v. U. S., 164 U. S., 205. For other cases, see note to sec. 236, R. S.) Where the head of a department is authorized by law to ascertain "the legal heirs" of a dece- dent, and it is pro\nded that his decision shall be "final and conclusive," this does not mean that he could arbitrarily ignore the leeal heirs and decide in favor of a collateral heir or a stranger in blood; and when he does this, his decision is arbitrary and capricious and not binding on the courts. (Mickadiet v. Lane, 43 App. D. C, 414.) Decisions of heads of departments are binding on their successors.^ — "The law is well settled 'that puldic officers can not open and reexamine cases decided 1 y their predeces- sors except for fraud, mistake in matters of fact arising from errors in calculations, or newly dis- covered material cA-idence.' " (Maine v. tj. S., 36 Ct. Cls., 531, 553, quoting W'addell v. TJ. S., 25 Ct. Cls., 325, 328, and cases there cited.) "It has long been held in the executive departments that when a claim or controversy between the United States and individuals therein pending has once been fully considered, and fnal action and determination had thereon by any executive officer having jurisdiction of the same, it can not be reopened, setaside, anda different result ordered by any successor of such officer, except for fraud, manifest error on the face of the proceedings, such as a mathe- matical miscalculation or newly discovered CA-idence, presented within a reasonable time and under such circumstances as would be a sufficient cause for gi-anting a new trial in a court of law. This ruling and practice of the departments has been approved elsewhere and has been sustained by the courts." (Rollins and Presbrey v. U. S., 23 Ct. Cls., 123, citing, 9 Op. Atty.'Gen., 34; 12 Op. Atty. Gen., 172, 358; 14 Op. Atty. Gen., 387, 456; 14 Op. Atty. Gen., 275; U. S. v. Bank of Metropolis, 15 Pet., 401 ; Lavelette's case, 1 Ct. Cls., 147; Jackson's case. 19 Ct. Cls., 504; State of Illinois case, 20 Ct. Cls., 342; McKee's case, 12 Ct. Cls., 560; Day's case, 21 Ct. Cls., 264; and opinion of the Judiciary Committee of the Senate, reported by Senator and Judge David Da\TS, quoted in Jackson's case, above referred to.) "The doctrine of res judicata [a thing adju- dicated — meaning that a specific case which has once been finally adjudicated can not l^e reopened] as being applicable to the jiuisdic- tion of the head of a department is fully recog- nized by this court in several adjudications." (Day V. U. S., 21 Ct. Cls., 264.) "It is desirable upon all accounts that there should be an end of controver.'^ies. * * * Unless such is the case, as each successive incumbent of one of the great administrative offices assumes his position he may be com- pelled to review all the decisions of his prede- cessors which have been against applicants and claimants." (15 Op. Atty. Gen., 315.) It is "a rule of action prescribed to itself by each administration, to consider the acts of its predecessors conclusive, as far as the Executive is concerned. It is but a decent degree of respect for each administration to entertain of its predecessor, to suppose it as well qualified as itself to execute the laws according to the intention of their makers; and not to set an example of review and reversal, which, in its turn, may be brought to bear upon itself, and thus keep the acts of the Executive perpetually unsettled and afloat. In conversing with President Adams on this subject, I understood him to concur in the general rule of considering all acts of the preceding administration as final; and, although pailial injuries may now and then remain unredressed by the operation of this, in common with all other general rules, yet it is better to bear that partial evil, or leave it to legislative redress, than to introduce the more extensive, incalculable evils which must result from considering all the past acts of all the past Executives as open to reconsideration and readjudication, at the pleasure of the indi- viduals who were interested in them. And if a decision made in regard to these gentlemen, eight years ago, during the presidency of ^Mr. Monroe, is open to reA-iew and reversal, I do not see upon what principle of discrimination we can refuse to reA'iew and reverse a decision made during the presidency of Mr. Washington, upon the application of any other indi\idual supposing liimself aggrieved by it." (2 Op. Atty. Gen., 9.) If the present administration has authority to rcA-iew the acts of its predecessors, "the Exec- utive which is to follow us must have the like authority to re\-iew and unsettle our decisions, and to set up again those of our predecessors; and upon this principle, no question can be con.sidered as finally settled. The establish- ment of such a principle, besides the uncer- tainty and confusion just noticed, would throw upon the Executive a load of duties which it 348 Navy Department. Pt.2. REVISED STATUTES. Sec. 417. could not possibly sustain. Each administra- tion has already as much as it can do, in the current business which belongs to it; but if to this is to be superadded the burden of reviewing all the acts of preceding administrations by which individuals may suppose themselves to have been aggrieved, it is manifest that the biu-den will become immediately insupport- able." (2 Op. Atty. Gen., 9.) "The principle has been so frequently de- clared that the final decision of a matter before the head of a department is binding upon his successors in the same department, under cer- tain well-defined exceptions, that it is now entitled to be regarded as a settled rule of administrative law. (See on this subject. United States v. Bank of Metropolis, 15 Pet., 401; Opinion of Mr. Wirt, 2 Opins., 9; of Mr. Taney, 2 Opins., 464; of Mr. Nelson, 4 Opins., 341; of Mr. Toucey, 5 Opins., 29; of Mr. Johnson, 5 Opins., 123; of Mr. Black, 9 Opins., 101, 301-2, 387; of Mr. Stanberry, 12 Opins., 358; of Mr. Hoar, dated Apr. 26, 1869, in relation to the case of Admiral Goldsborough , ante, p. 33; and another, dated May 5, 1870, in relation to the claim of George Chorpenning, ante, p., 226; all of which authorities are cited and approved in a recent opinion addressed to you by the Attor- ney General, dated Mar. 7, 1871, in the case of R. C. Sargent and others against the Western Pacific Railroad Company.) None of the ex- ceptions referred to are shown to exist in the case submitted; and thus, as it seems to me, the rule just stated being properly applicable here, under its operation you clearly have no author- ity to disturb the decision of your predecessor or reopen the case finally determined by him. " (13 Op. Atty. Gen., 457.) The head of a depaitment is without jurisdic- tion to reopen and readjudicate a case finally decided by his predecessor," there being no alle- gation that the previous decision was obtained by fraud, and it being, under the law, "final and conclusive." In such a case, it was held that a coiu-t of equity has jurisdiction to order the Secretary to recognize and enforce the for- mer decision, upon petition of parties injuii- ously affected by its reversal. (Mickadiet v. Lane, 43_App. D. 0., 414.) The principles enunciated in the authorities above quoted have been consistently followed by the Navy Department in the past with reference to decisions of previous administra- tions. (File 5252-32, re legality of appoint- ment to the Naval Academy of Midshipman Douglas, and 28 Op. Atty. Gen., 180, in same case; file 26256-111:2, naval service of Captain Owen S. Willey, U. S. R. C. S.; file 11130-6, application of Captain Julius S. Turrill, U. S. M. C, for change in date of commission; file 27231^2, Civil-War service of Captain Robert E. Impey, Commander Charles A. Adams, Commander Dennis W. Mullan, and Chief Boatswain John B. F. Langston, U. S. N., retired, and file 27231^2:2 and 3, in same cases; see also file 20971-19:1, Apr. 14, 1913; file 26252-71:2, Aug. 29, 1913; file 26836-15, Nov. 17, 1913.) For other cases, see note to section 236, Re- vised Statutes. • Decision not binding on successors ex- cept as to specific case adjudicated. — The head of an executive department of the Govern- ment has the right to reverse a departmental practice, based on the decisions of a predeces- sor, even if a long-continued one, and such a former decision can be said to have no elements of estoppel or res judicata save in respect of subject matter finally settled and closed under it. (Payne v. Houghton, 22 App. D. C, 234; Smith i). Payne, 22 App. D. C, 463.) But "it is almost as important that the law should be settled permanently as that it should be settled correctly. Its rules should be fixed deliberately and adhered to firmly, imless clearly erroneous. Vacillation is a serious evil." (File 5252-68. May 15, 1915, quoting Oilman v. Philadelphia, 3 Wall., 724.) According to the doctrine of stare decisis, where a statute has been construed by the Navy Department in a previous administration and such construction is not clearly erroneous, the matter should be regarded as settled so far as the law is concerned, and the previous con- struction should not be disturbed. (File 5252- 68, May 15, 1915.) The Navy Department having decided in a specific case that the law does not prohibit the appointment of an alien to the Naval Academy, although he can not be commissioned as an officer without in the meantime becoming a citizen, and this decision not being "clearly erroneous," it should be adhered to as the cor- rect interpretation of the law, but the regula- tions may be amended so as to prohibit the appointment of aliens to the Naval Academy, this not being contrary to statute. (File 5252- 68, May 15, 1915.) No change in a usage can have a retroactive effect, but must be limited to the future. (U. S. V. Macdaniel, 7 Pet., 1, 15; see also Camp- bell V. U. S., 107 U. S., 407.) Where payments have been made under a long-continued prac- tice of the administrative department, sanc- tioned by the accounting officers of the Treas- ury, payments so made by disbursing officers prior to the promulgation of a Comptroller's decision reversing the former construction of the law, if otherwise correct, will be passed to their official credit. (20 Comp. Dec, 182; see also Comp. Dig., 295, 296. In this connec- tion, consult Muhlker v. New York & Harlem R. Co., 197 U. S., 544; Gelpcke v. Dubuque, 1 WaU., 175; Ohio Life & Trust Co. v. Debolt, 16 How., 432; compare Weber v. Rogan, 188 U. S., 10, and cases there cited.) Jurisdiction of Secretary of the Navy and accounting officers of the Treasury.— See cases collected on this subject in note to section 236, Revised Statutes. Secretary of the Navy will not decide hypothetical questions. — The official busi- ness of the Navy Department is such that it is compelled to decline answering hypothetical questions, assuming facts which may never actually be presented to the person requesting decision. As was stated by the Attorney General in an opinion to the Secretary of the Treasury, "you will readily perceive the incon\^enience of giving, upon a hypothetical case, an opinion which, upon the consideration of an actual case, might require modification on account of circumstances not imagined, and, therefore, not considered in the prepara- 349 Sec. 417. PL 2. REVISED STATUTES. Navy Department. tion of the opinion." (File 26287-1776, Oct. 28, 1913, citins; 13 Op. Atty. Gen., 531. See in this fonn('(^tion. note to sec. 3r>0, R. S.) Legal liability of Secretary for official acts. — Th(> head of a department incurH no personal liability in appro^^nQ; by his si,i:;nature voncherg or other instrnnients in writins; in- vohing the expenditure of public moneys if he acts in reliance upon properly chosen sub- ordinates \vhose ability and pood faith he has no rea-son to question, even if it turns out that the voucher or other instrument should not haA-e been executed. The head of a depart- ment must, of course, exercise due care in every ofRcial act connected wnth his depart- ment. But as his ])ersonal investigation of every detail is in the nature of things impos- sil)le, he has a right to act in reliance upon properly chosen subordinates whose ability and good faith he has no reason to question. (20 Op. Atty. Gen., 573.) The same general considerations of public policy which demand, for judges of courts of superior jurisdiction, immunity from civil siuta for damages arising from acts done by them in the course of the performance of their judicial functions, apply to a large extent to oflicial communications made by heads of executi^-e departments when engaged in the discharge of the duties imposed upon them by law. The inteiests of the people requiie that due protection be accorded to them in respect of tlieir official acts. As in the case of a judicial officer, a distinction exists between action taken b>' the head of a department in reference to matters which are manifestly or palpably beyond his authority and action having more or less connection mth general matters com- mitted by law to his control or supervision. Whatever difficulty may aiise in applying these principles to particular cases in which the richts of the citizen may have been materially imjiaired by the inconsiderate or wrongful action of the head ot a department, it is clear that he can not be held liable to a chnl suit for damages on account of official communications made by him pursuant to an act of Congress and in respect of matters witliin his authoiity by reason of any personal motiA'e that might be alleged to have prompted his action, for personal motives can not be imputed to duly authorized otficial conduct. In exercising the functions of his office the head of an executive dej)artment, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may at any time become the subject of inquiry in a civil suit for damages. It would seriously cripple the ])roper and effective administration of public affairs as intrusted to the executive branch of the Goveniment if he were subjected to any such restraint. He may have legal authority to act, but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he is invested. But if he acts, having authority, Ms conduct can not be made the foundation of a suit against him personally for damages, even if the circumstances show that he is not disagreeably impressed by the fact that his action injuriously affects the claims of par- ticular individuals. Where the head of a department does not exceed hie authority nor pass the line of his duty the motive that im- pelled him to act is wholly immaterial. Even though he acted maliciously, that could not change the law. (Spalding v. Vilas, 161 U. S., 483; see al.so Hodgson v. Dexter, 1 Cranch, 345; Lamar v. Browne, 92 U. S., 187.) A report made by the chief of a bureau or office in a department to the head of the depart- ment as to the merits of a claim for a medal of honor which has been referred to him for in- vestigation, which report contains nothing that does not relate to or reflect upon the alleged questionable character of the claimant and the want of just foundation for his claim, is abso- lutely privileged, notwithstanding the motive which may have actuated the maker, or the mistakes of fact which it may contain. If the report complained of as a libel had been made by the head of the department to the President for his action, it could hardly be contended for a moment that an action for libel could l)e main- tained against the Secretary. The latter is the regularly constituted organ of the President for the administration of the military establish- ment of the nation; and rules and orders pub- licly promulgated through him must be received as those of the Executive. And as it is impos- sible for a single individual to perform in person all the various duties assigned to the particular department of which he is head, he must of necessity, under proper orders and regulations, perform the larger portion of euch duties through the agencies of the heads of bureaus and divisions of his department. But the work when done is in contemplation of law the work of the department, and is entitled to all the privilege and protection that would attach to it if done by the Secretary in person. It is, therefore, not the particular position of the party making the report or communication that entitles it to absolute privilege, so much as the occasion of making it and the reasons of public policy for the immunity. (De Arnaud v. Ainsworth, 24 App. D. C, 167; 5 L. R. A. (N. S.), 163.) The question of motive is not material. A party is not liable for the motives with which he discharges an official duty; nor is he liable for any mistake of fact he may commit in the course of the exercise of that duty. Public pol- icy affords alisolute protection and immunity for what may be said or written by an officer in his official report or communication to a superior, when such report or communication is made in the course and discharge of official duty. Otherwise the perfect freedom which ought to exist in the dischai^e of public duty might be seriously restrained, and often to the detriment of the pubUc service. Of course, when a party steps aside from duty and intro- duces into his report or communication de- famatory matter wholly irrelevant and foreign to the subject of inquiry, a different question is presented. (De Arnaud v. Ainsworth, 24 App. D. C, 167; 5 L. R. A. (N. S.), 163.) Section 1547 of the Revised Statutes, by ex- press terms, provides that orders, regulations, and instructions issued by the Secretary of the Navy are to be recognized as the regulations of the Navy. One of these regulations directs that "all officers through whom communica- 350 Navy Department. PL 2. REVISED STATUTES. Sec. 417. tions from inferiors are to be forwarded to the de- partment, one of the bureaus, or any authority higher than themselves, must forward the same, if couched in respectful language, as soon after being received as practicable, and they will invariably state their opinion in writing, by indorsement or otherwise, in relation to every subject presented for decision." [Similar pro- vision was contained in Art. 1-5305, Naval Instructions, 1913.] M. was a professor at the United States Naval Academy at Annapolis, and placed his resignation in the hands of W., then superintendent of the academy, to be for- warded to the Secretary of the Navy for his decision. The resignation was forwarded by W. with his indorsement thereon of reasons why it should be accepted. In an action for libel, based upon this indorsement, brought by M. against W., it was held, (1) that the in- dorsement in question did not fall within the class of communications which are absolutely privileged; (2) that it was, however, privi- leged to the extent that the occasion of making it rebutted the presumption of malice, and threw upon the plaintiff the onus of proving that it was not made from duty, but from actual malice and without reasonable and probable (Maurice 'v. Worden, 54 Md., 233.) cause. The mere sending to the head of a depart- ment, by a subordinate officer in the course of official duty, of a communication reflecting upon the character and conduct of a subordi- nate is not such a publication as is essential to maintain an action for a libel. (Gardner v. Anderson, 9 Fed. Cas. No. 5220.) Handing to another a copy of a Senate docu- ment containing a report of an official of the War Department adverse to a claim for a medal of honor for distinguished service in the Army is not a libelous publication of the matter therein contained, since the report is a public document which every one may circulate, receive, and inspect. (De Amaud v. Ainsworth, 24 App. D. C, 167; 5 L. R. A. (N. S.), 163.) For decieions concerning the production in court of papers on file in the departments, for use in libel suits against public officers, see note to section 418, Revised Statutes. "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the Government, from the highest to the lowest, are creatures of the law and are 1)oimd to obey it. It is the only supreme power in our system of Government, and every man who by accepting office participates in its func- tions is only the more strongly bound to submit to the supremacy and to observe the liabilities which it imposes upon the exercise of the authority which it gives." (U. S. v. Lee, 106 U. S., 196.) Executive Federal officers are personally lia- ble at law in the ordinary forms of action for illegal official ministerial acts or omissions to the injury of an indi^ddual. (U. S. v. Kendall, 26 Fed. Cas. No. 15517; aflSrmed Kendall v. U. S., 12 Pet., 526.) An officer is bound to use that care and dili- gence in the discharge of his duties that a con- scientious and pnident man, acting under a just sense of his obligations, would exercise under the circumstances of a particular case; and if he fails and neglects to do so he is culpa- ble. (U. S. V. Baldridge, 11 Fed. Rep., 552.) Where a public act or order rests in executive discretion, neither the President nor his authorized agent is personally ci\'illy respon- sible for the consequences. (Durand v. Hol- lins, 8 Fed. Cas. No. 4186.) For other decisions concerning legal liability of public officers, see notes to Constitution, Article II, section 1, clause 1, and Article I, section 8, clause 13. The signature of the head of a depart- ment does not require the use of pen and ink, held and guided by the hand of the person him- self. The imjjress of his name with a stamp or copperplate by himself or in his presence ia legally sufficient. (1 Op. Atty. Gen., 670.) The head of a department can not delegate authority to other officers to sign his name in attestation of commissions, Treasury warrants, passports, and the Like without authority of Congress. If the time occupied in signing his name becomes a serious impediment to the prompt p<'rformance of his merely intellectual duties, relief should be obtained from Congress. (7 Op. Atty. Gen.. 594.) The abbreviation employed by the head of a department is in legal contemplation his signature, if used for that purpose; and if in any case it should become material to estab- lish it by evidence, the same testimony would avail as would suffice to verify his name written out at length. (4 Op. Atty. Gen. 187.) The signature of a public official, in the form of a facsimile stamp affixed by a subordinate under the direction of such officer and ini- tialed by the subordinate authorized to affix the same, is a valid signature and conveys the au- thority of the officer in all cases where he is authorized to act. (31 Op. Atty. Gen-., 349, file 22724-39:3.) Secretary of the Navy may exercise powers vested by law in subordinates. — The office of Commandant of the Marine Corps is imder the direct supervision and control of the Secretary of the Na\y, and its duties may be performed by him or by the Acting Secretary while the office of commandant is vacant. (28 Op. Attv. Gen., 486, citing Swaim v. U. S.. 165 U. S., 553, 28 Ct. Cls., 221, in which the courts held that "a military officer can not be invested with greater authority by Congress than the Commander in Chief.") Similarly, held that the Secretary' or Acting Secretary of the Navy, as the case may be, may sign all mail which requires the signature of the Chief of the Bureau of Steam Engineering during a vacancy in that office. (File 22724-7e, May 14. 1909; compare Williams Eng. and Cont. Co. V. U. S., 55 Ct. Cls., 349.) Power of Secretary to reprimand sub- ordinates. — "No doubt the Secretary of the Navy may, within his discretion, when he believes it for the good of the service, send communications to subordinate officers which may be in the nature of a reprimand. This right is necessarily vested in him as the chief officer of a department; but such communica- tions can not be regarded in the nature of a pun- ishment as defined in the Regulations." (28 Op. Atty. Gen., 625.) 351 Sec. 418. PL 2. REVISED STATUTES. Navy Department. "The assumption that the Secretary of the Navy can not pronounce a rebuke, public or private, upon an oflicer for a breach of dis- cipline, or a failure in the performance of duty, without ol)tiuning the sanction of a comt, is an unlieard of proposition. The depai-traent impartially awai'ds praise or blame to the officer who deserves one or the other, as occasion may arise; and the practice is as old as the depart- ment itself. Cases have occurred where the department, without trial, has pronounced emphatic reprimand upon officers in general orders. The publicity that is given either to its commendation or its reproof is a matter within its own discretion, in the exercise of which it consults only the public interests." (File 20251-2993, Mar. 10, 1910, quoting letter of Jan. 14, 1891, to Commander George C. Reiter, U. S. Navy; see also, G. C. M. Order No.9, Jan. 31, 1893, citing precedents, and see file 26283- 522, Feb. 12, 1913.) The Secretary of the Navy has authority to detail enlisted men of the Marine Corps to guard and protect property of the Government placed on exhibition at an exposition. (20 Op. Atty. Gen., 576); to order a naval detachment to Raleigh, N. C., to participate in ceremonies attending the unveiling of monument to late Ensign Bagley (file 3679-2); and to detail the Maiine Band to appropriate duty anywhere (file 4288-6, Apr. 22, 1907), including its par- ticipation in a charity fete (file 4288-4, Apr. 18, 1907). The act of June 3, 1916, section 35 (39 Stat., 188), does not prohibit the detail or permitting of enlisted men, including members of the Ma- rine Band, to engage in their profession in civil life without renumeration, even though this may possibly interefere with the employment of local ci\dlians. (File 4924-435, June 20, 1916). By act of August 29, 1916 (39 Stat., 612), members of the Marine Band are prohibited as individuals from furnishing music in com- petition with civilian musicians, and from ac- cepting renumeration for furnishing music ex- cept under special circumstances when author- ized by the President. As to detail of enlisted men to duty in an executive department, see statutes noted under section 416, Revised Statutes, "Restrictions on employment of clerical services." Sec. 418. [Department property, books, and records.] The Secretary of the Navy shall have the custody and charge of all the books, records, and other property now remainmg m and appertaming to the Department of the Navy, or hereafter acquired by it. — (30 Apr., 1798, c. 35, s. 3, v. 1, p. 554.) Miscellaneous. — The head of a department should see that contracts wliich belong to hia office are properly and faithfully executed, whether he made the contracts or conferred authority on others to do so; and if he becomes satisfied that contracts wliicn hf made are being fraudulently executed, or that contracts made by others were made in disregard of the rights of the GoA'ernment, or with intent to defraud, it is his duty to interpose, arrest execution thereof, and adopt measures to protect the Gov- ernment against the dishonesty of his subordi- nates. (U. S. V. Adams, 7 Wall., 463.) Navy regulations are binding on the sub- ordinates of the Secretary of the Navy, but do not bind the Secretary himself. (See U. S. v. Bm-ns, 12 Wall., 246; Smith v. U. S., 24 Ct. Cls., 215; and 9 Comp. Dec, 280; noted under sec. 161, R. S., "IX. Waiver of Regulations.") The presumption is that officers of the Gov- erment perform their duty, and the presump- tion is strengthened in a particular case by the fact that heavy statutory penalties will be in- cmred by neglect. (Crussell v. U. S., 7 Ct. Cls., 276, publishing decision of Supreme Court.) The failure of an officer of the United States to discharge a plain duty imposed on him by law does not charge the Government itself with the loss caused by the default. (In re Schmalz, 4 Ct. Cls., 142.) All the officers of the Government, from the highest to the lowest, are but agents with dele- gated powers; and if they act beyond the scope of those delegated powers, their acts do not bind the principal. (U. S. v. Maxwell, etc., Co., 21 Fed. Rep., 19; see also Steele v. U. S., 113 U. S., 128, holding Government not bound by illegal action of Navy Department, noted under sec. 236, R. S., VIII, (C), 3.) _ All instructions from the executive which are not supported by law are illegal, and no inferior officer is bound to obey them. (Gil- christ V. Collector, 10 Fed. Cas. No. 5420; see cases on this subject collected in note to Con- stitution, Art. I, sec. 8, clause 13.) The fact that one is an officer of the Navy of the United States, and is acting under orders, gives him no justification for the retention_ of premises hehl by him under that authority against the claim of the true owner. (San Francisco Sav. Union v. Irwin, 28 Fed. Rep., 708. Accounts, property : ' ' Clothing and small stores ' ' fund created by act of June 30, 1890 (26 Stat., 197). Accounts: "Naval supply account" was cre- ated and the "naval supply fund" abol- ished by acts of June 25, 1910 (36 Stat., 792), and March 4, 1911 (36 Stat., 1279) ._ Accounts: Property returns to be audited and responsibiUty for losses determined by Paymaster General of the Navy and officer in charge of the Quartermaster's Depart- ment of the Marine Corps. (Act Mar. 29, 1894, 28 Stat., 47.) Army supplies: Transfer of, as needed, to naval or marine officers commanding detachments on shore, was required by sections 1135 and 1143, Revised Statutes. Bids may be rejected under certain circum- stances. (Sees. 3722 and 3724, R. S.) Coal produced by certain mines in Alaska re- quired to be sold to United States for use of Navy at price fixed by President. (Act May 28, 1908, sec. 2, 35 Stat., 424.) Coal on Government lands in Alaska may be mined under the direction of the President, 352 Navy Department. PL 2. REVISED STATUTES. Sec. 418. when necessary for the Navy. (Act Oct. 20, 1914, 38 Stat., 741.) Congressional Record: One bound copy to be furnished to the libraiy of the Na\'y De- partment and to the Naval Observatory. (Act Jan. 12, 1895, sec. 73, 28 Stat., 617). Contracts for supplies are to be made by or under direction of Secretary of the Navy^ (Sec. 3714, R. S., as amended by act Feb. 27, 1877, 19 Stat., 249.) Contracts for provisions are to be awarded to low- est responsible bidder on each item. (Act Mar. 4, 1913, 37 Stat., 904.) Contracts or purchases are not to be made unless authorized by law or under appropriation adequate to their fulfillment, except in the War and Navy Departments for clothing, subsistence, forage, fuel, quarters, trans- portation, or medical and hospital supplies, which, however, shall not exceed necessi- ties of current year. (Sec. 3732, R. S.,as amended by act June 12, 1906, 34 Stat., 255) Contractors required to furnish bond or certi- fied check. (Sec. 3719, R. S., as amended, act May 25, 1896, 29 Stat., 136, and Dec. 11, 1906, 34 Stat., 841.) _ Contractors liable to forfeiture, as liquidated damages, for failure to perform. (Sec. 3720, R. S., as amended, June 22, 1910, 36 Stat., 591.) Contractors may be ])aid reservations on deliv- eries. (Sec. 3730, R. S.) Contractors may be paid partial payments dur- ing progress of work. (Acts Aug. 22, 1911, 37 Stat., 32; Oct. 6, 1917, sec. 5, 40 Stat., 383.) Contractor's name required to be marked on supplies. (Sec. 3731, R. S.) Copies of books, records, papers, or documents, under seal of department, admissible in evi- dence in Federal courts. (Sec. 882, R. S.) Domestic steel material to be used in construc- tion of naval vessels. (Act Aug. 3, 1886, sec. 2, 24 Stat., 215, as amended by act May 4, 1898, 30 Stat., 390.) Domestic hemp to be purchased for Navy, sub- ject to price and quality. (Sec. 3725, R. S.) Domestic articles to be preferred in purchases for Navy. (Sec. 3728, R. S.) Exchange of typewriters, adding machines, and other labor-sa\ing devices, authorized in part pavment for new macliines. (Act Mar. 4, 1915, sec. 5, 38 Stat., 1161.) Flags captured by Na\'y to be collected by Secretary of Navj' and delivered to the President. (Sees. 428, 1554, 1555, R_. S.) Foreign materials for construction or repair and equipment of naval vessels mav be im- ported without dutv. (Act Oct' 3, 1913, sec. IV, J, subsecs. o, 6, 38 Stat., 196.) Foreign war material may be purchased in emergencies and imported free of duty. (Act Mar. 4, 1913, 37 Stat., 896. See also act June 30, 1914, 38 Stat., 399.1 Foreign supplies not to be purchased in excess of prevailing market prices. (Sec. 3723, R. S.) Gifts of flags used for draping coffins may be made by Secretary of the Navy to relatives of deceased, or to schools, patriotic orders, or societies. (Act June 30, 1914, 38 Stat. 406.) Gifts to vessels of silver, colors, books, and articles of equipment or furniture, to be accepted and cared for by Secretary of the Navy. (Act May 20, 1908, 35 Stat., 171.) Government publications (one copy) are to be furnished by the Superintendent of Docu- ments to the libraries of the Executive De- partments, and of the United States Mili- tary and Naval Academies, which libraries are constituted designated depositories of such publications. (Act Jan. 12, 1895, sec. 98, 28 Stat., 624.) Inventory of property pertaining to Navy is required to be kept by the Secretary of the Navy. (Sec. 197, R. S.; amended by act Feb. 27, 1877, sec. 1, 19 Stat., 241.) Inventory to be kept of all supplies pertaining to Naval Establishment, and annual report thereof made to Congress, by Bureau of Supplies and Accounts. (Act Mar. 2, 1889, 25 Stat., 817.) Life-saving dress authorized as part of naval equipment. (Act Mar. 3, 1883, 22 Stat., 475.) Loan of naval vessels to nautical schools, author- ized by act of March 4, 1911 (36 Stat., 1353). Loan or permanent transfer of naval vessels to U. S. Shipping Board, authorized by act of September 7, 1916, section 6 (39 Stat., 730). Loan of naval equipment to military schools, authorized by act of March 3, 1901 (31 Stat., 1440), as amended by act of June 29, 1906 (34 Stat., 620), and June 24, 1910 (36 Stat., 613). Loan or gift of condemned ordnance, gims, and cannon balls by the Secretarjr of the Navy to soldiers' monument associations, posts of Grand Army of the Republic, and municipal corporations, authorized by act of May 22, 1896 (29 Stat., 133). Loan of scientific instruments by Secretary of the Navy to the Weather Bureau was authorized by act of October 19, 1888, sec- tion 3 (25 Stat., 600), as amended by act of October 1, 1890 (26 Stat., 653). Loan of articles to Red Cross was authorized by joint resolution of May 8, 1914 (38 Stat., 771), as amended by joint resolution of May 18, 1916 (39 Stat., 164). Official Register of the United States — 20 copies of each edition to be furnished to the Na\'y Department under Public Printing ana Binding Act, January 12, 1895, section 73 (28 Stat., 618). Punishment for injuring or destroying naval supplies and property is provided by Criminal Code, act of March 4, 1909, sec- tion 286 (35 Stat., 1144); and section 1624, Revised Statutes, article 4. Punishment for injuring naval vessel or equip- ment is provided by section 1624, Revised Statutes, article 4. Punishment for failure to prevent destruction of public property is provided by section 1624, Revised Statutes, article 8. Punishment for wasting ammunition, provi- sions, or other public property, or permit- 353 Sec. 418. Pt. 2. REVISED STATUTES. Navy Department. ting such waste, is provided by section 1624, Ileviaed Statutes, article 8. Punishment for unlawfully purchasing naval property from person not having lawful right to sell same is provided by section 1624, Revised Statutes, article H; and Criminal Code, act of March 4, 1909, sec- tion 35 (35 Stat., 1095). Punishment for stealing, embezzling, or unlaw- fully selling ordnance, arms, equipment, ammunition, clothing, subsistence stores, or other naval property is provided by section 1624 Revised Statutes, article 14; and Criminal Code, act of March 4, 1909, sections 36 and 47 (35 Stat., 1096, 1097). Punishment for unlawfully concealing, remov- ing, mutilating, obliterating, falsifying, or destroying any public record, book, paper, etc. , is provided by Criminal Code, sections 128 and 129 (35 Stat., 1111, 1112). Punishment for forging or altering public records for purpose of defrauding United States is provided by section 28, Criminal Code, act of March 4, 1909 (35 Stat., 1094); and section 1624, Re\rised Statutes, article 14. (See also act Mar. 4, 1911, 36 Stat., 1355.) Purchase of supplies is deemed to be for the Navy, and not for any bureau thereof, and they shall be classified and issued accord- ingly. (Act Mar. 2, 1891, 26 Stat., 807; act June 30, 1890, 26 Stat., 205.) Purchase of structural steel, ship plates, armor, armament, or machinery from unlawful comb'mations or monopolies, or at price in excess of a reasonable profit, is prohibited by a claiise in the annual naval appropria- tion act imder "Increase of the Nav-y." (See act Mar. 4, 1917, 39 Stat., 1195.) Purchase of naval supplies, when time will permit, is to be made by contract after advertisement and from lowest bidder. (Sec. 3718, R. S., as amended by act June 30, 1890, 26 Stat., 189; act July 19, 1892, 27 Stat., 243;andactMar. 3, 1893,27Stat., 715.) Purchase of material for steam boilers is author- ized without advertisement. (Res., June 14, 1878, 20 Stat., 253.) Purchase of gun steel or armor for the Navy, without public competition, is prohibited by act of March 3, 1893 (27 Stat., 732). Purchase of shells or projectiles, except for ex- perimental purposes, is not to be made without bids. (Act Mar. 4, 1913, 37 Stat., 896; act June 30, 1914, 38 Stat., 398.) _ Purchase of ordnance, gunpowder, medicines, bunting, butter and cheese, contraband of war, and supplies abroad for vessels on for- eign stations may be made without adver- tisement. (Sec. 3721, R. S.) Purchase of tobacco for the Na^•y is to be made after advertisement in the same manner as other supplies. (Act Jime 10, 1896, 29 Stat., 370.) Purchase of supplies in open market for all branches of the naval ser\ice without for- mal contract or bond is authoiized where amount does not exceed $500. (Act Mar. 2. 1907, 34 Stat., 1193.) Piuchase of material, supplies, and equipment, so far as possible, shall be made from other services of the Government, possessing ma- terial, supplies, and equipment no longer required because of cessation of war activi- ties. (Act Mar. 1, 1919, sec. 8, Pub. No. 314; see also act Feb. 25, 1919, Pub. No. 275, and Executive Order of Dec. 3, 1918.) Purchase of preserved meats, pickles, butter, desiccated vegetables, and flour is to be made in such manner as Secretaiy of the Navy mav deem best. (Sees. 3726 and 3727", R. S") ^ Piu-chase of bunting mav be made in open mar- ket. (Sec. 3729, R^ S.) Purchases not to be made of vessels, aiTnament, articles, or materials wliich the na-\y yards, gim factories, or other industrial plants of the Navy ai'e equipped to supply, except in cases of emergency, etc. (See annual naval appropriation acts, e. g., act of Mar. 3, 1915, 38 Stat., 952.) Record is to be kept of proceedings of naval examining boards. (Sec. 1501, R. S.) Record of officer in Ixis existing grade shall be considered by naval examining board and the President in determining his fitness for promotion. (Sec. 1502, R. S., as amended by act June 18, 1878, sec. 1, 20 Stat., 165.) Records of all courts-martial, courts of inquirj', and boards for the examination of officers for retirement and promotion are to be re- ceived and recorded by the Judge Advo- cate General under the direction of the Secretary of the Navy. (Act June 8, 1880, 21 Stat., "164; amended by act June 5, 1896, 29 Stat., 251.) Records are to be kept of all proposals for naval supplies. (Sec. 3720, R. S., as amended by act June 22, 1910, 36 Stat., 591.) Records are to be kept in Na\y Department of commissions of all officers under the direc- tion and control of the Secretary of the Navy. (Act Mar. 28, 1896, 29 Stat., 75.) Records of character and treatment of diseases are to be transmitted to '^a.xy Department by surgeon of the fleet. (Sec. 1374, R. S.) Records of naval contracts are to be kept in Re- turns Office, Interior Department. (Sees. 512-515, 3744-3747, R. S.) Records of Revolutionary War pertaining to the Navy, in the possession of any official of the United States, are required to be transfened to the Navy Department. (Act Mar. 2, 1913, 37 Stat., 723; act June 29, 1906, 34 Stat., 579.) Records pertaining to the Navy, from beginning of the Navy Department to the Civil War, in the possession of any of the executive departments, are requii-ed to be transferred to the Secretary of the Navy. (Act Apr. 27, 1904, 33 Stat., 403.) Records and books of bureaus in the Navy De- partment are to be retained in custody of the bureaus. (Sec. 420, R. S.) Records of courts of inquiry are admissible in evidence before courts-martial. (Sec. 1624, R. S., art. 60.) Records of naval retiring boards are to be laid before the President by Secretary of the Navy. (Sec. 1452, R. S.) Records of Revolutionary War are to be classified by Secretary of the Navy with view to pub- 354 Navy Department. PL 2. REVISED STATUTES. Sec. 418. lication. (Act Mar. 2, 1913, 37 Stat., 723; act June 29, 1906, 34 Stat., 579.) Records of Civil War are to be published by the Secretary of the Navy. (Act July 31, 1894, 28 Stat., 190; see also legislative, executive, and judicial appropriation acts for subse- quent years.) Regulations for the purchase, preservation, and disposition of naval supplies are to be made by the President. (Sec. 1549, R. S.) Regulations for the custody, use, and preserva- tion of the records, papers, and property ap- pertaining to any executive department, are to be made by the head of such department. (Sec. 161, R. S.) Regulations and general orders shall be f m'nished each commissioned and warrant ofBcer of the Navy. (Sec. 1548, R. S.) _ Repairs to naval vessels are restricted by sec- tions 1538 and 1539, Revised Statutes, and laws noted thereunder. Sale of naval stores to persons in the Navy and Marine Corps and civilian employees at certain naval stations is authorized by act of March 3, 1909 (35 Stat., 768); act of June 24, 1910 (36 Stat., 619); and act of March 4, 1913 (37 Stat., 909). Sale of Navy and Marine Corps susbsistence supplies to officers and enlisted men of the Army is authorized by annual appropriation acts. (See act Mar. 4, 1915, 38 Stat. , 1072. See also sec. 1135, R. S., and note thereto.) Sale of vessels unfit to be repaired is authorized by sections 1540 and 1541, Revised Statutes, and subsequent laws noted thereunder. Sale of unserviceable materials and condemned naval supplies and stores is authorized by section 1541, Revised Statutes, and subse- quent laws noted thereunder. [The chief of the Bureau of Ordnance was authorized to sell certain small arms on hand and use proceeds for piu-chase of new arms and ammunition by act of June 20, 1878 (20 Stat., 242). See also act of March 3, 1875 (18 Stat., 388).] Sale of useless papers in the Navy Department, on naval vessels, and at navy yards, is au- thorized by acts of February 16, 1889 (25 Stat.,672);March2,1895(28Stat., 933); Feb- ruary 16, 1909, section 14 (35 Stat., 622); Au- gust 22, 1912 (37 Stat., 329); and March 3, 1915 (38 Stat., 929). Sale of individual pieces of United States ar- mament, when sentimental reasons exist for such sale, is authorized l)y act of March 2, 1905 (33 Stat., 841). Sale or gift of lubricating oil and gasoline to vessels of Volunteer Patrol Squadron. (See act of Aug. 29, 1916, 39 Stat., 600.) Sales of vessels and materials are to be reported to Congress (sees. 429, 1541, R. S. ; sec. 3672, R. S., as amended by act Feb. 27, 1877, sec. 1, 19 Stat., 249; act Aug. 5, 1882, sec. 2, 22 Stat., 296)._ Sales of old material, etc.: Proceeds in certain cases are to be covered into the Treasury as "Miscellaneous receipts." (Sec. 3618, R.S.)_ Scientific investigators and students shall be afforded the facilities for study and research in the Government departments under such restrictions as heads of departments may prescribe. (Act Mar. 3, 1901, 31 Stat., 1039.) Statutes at Large — 100 pamphlet copies are re- quired to be furnished to the Navy Depart- ment by Secretary of State at close of each session of Congress. (Public Printing and Binding Act, Jan. 12, 1895, sec. 73, 28 Stat., 614.) Statutes at Large — 75 bound copies are required to be furnished l)y Secretary of State to Navy Department at close of each Congress. (Public Printing and Binding Act, Jan. 12, 1895, sec. 73, 28 Stat., 615.) Supreme Court reports are to be furnished to the Secretary of the Navy, the Assistant Sec- retary of the Navy, the Judge Advocate General of the Navy, and the Naval Acad- emy, for official use. (Judicial Code, act Mar. 3, 1911, sec. 227, 36 Stat., 1154.) Tim ber lands are reserved for naval purposes , and removal or destruction of timber thereon is made punishable by sections 2458-2463, Revised Statutes. Transfer of aeroplanes and equipment to Post Office Department was authorized by Act of February 28, 1919 (40 Stat., 1194). Transfer of supplies from one bureau of the War or Navy Departments to another bureau of such departments. See act of March 4, 191 5 (38 Stat. 1084), and 21 Comp. Dec, 819. See also section 1135, Revised Statutes, and note thereto. Transfer of supplies between Bureaus of the Navy Department was authorized by act ofMarch2, 1889 (25 Stat., 818). Transfer of naval vessels to the Department of Commerce was authorized by Act of June 5, 1920 (41 Stat., 1058) ; and to the Shipping Board by Act of September 7, 1916, sec. 6 (39 Stat"., 730; compare Act June 5, 1920, 41 Stat., 990; see also Act May 12, 1917, 40 Stat., 75). Transportation of naval supplies by Army trans- port service, is authorized by act of March 2, 1907 (34 Stat., 1170). Transportation of naval supplies shall be in ves- sels of United States, unless freight charges are unreasonable and excessive. (Act Apr. 28, 1904, 33 Stat., 518.) Vehicles, passenger-carrying, are not to be purchased, operated, or repaired from any appropriation without specific authority of Congress. (Act July 16, 1914, sec. 5. 38 Stat., 508). Vessels, foreign built and registered as vessels of United States, may be taken and used as cniisers or transports. (Act May 10, 1892, sec. 4, 27 Stat., 28.) _ Vessels used in ocean mail service may be taken and used as transports or cruisers. (Act Mar. 3, 1891, sec. 9, 26 Stat., 832.) Transfer of property. — ^\Tiere articles of equipment, purchased for use of a particular bm'eau of a department have served the pur- pose for which purchased, they maybe trans- ferred for use of another bm-eau of said depart- ment without any adjustment of appropria- tions. (21 Comp. Dec, 788.) Under the provisions of the act of March 4, 1915 (38 Stat. 1084), when one bureau of the War 355 Sec. 418. PL 2. REVISED STATUTES. Navy Department. or Navy Departments procures supplies or perforins any soivice for another buieau of such departments the head of the de- partment lor which the supplies are to be f)rocured or the scr%ice performed may cause its unds to be transferred on the books of the Treasury' Department to the prociu-ino; depart- ment for direct expenditure by it. The funds 80 transferred are to be expended and accounted for under the rules and regulations of the department to which they are advanced (21 Comp. Dec, 819; see also 17 Op. Atty. Gen., 480). Authority of Congress is necessary for trans- fer of naval vessel to the Revenue-Cutter Serv- ice. (File 3160-54, May 4, 1907.) Tliere is no authority for the Navy Depart- ment to transfer to another department al)so- lutely, or temporarily (under certain circum- stances), property piu"chased from its appro- priations. Accordingly, declined to loan model of the U. S. S. Bancroft to the Revenue-Cutter Service, to which the vessel itself had been transferred pursuant to act of June 30, 1906 (34 Stat., 702). (File 3160-36, Nov. 15, 1906. See also 17 Op. Atty. Gen., 480; 20 Op. Atty. Gren., 93, 96; 23 Comp. Dec, 175. Compare file 80^3, Sept. 28, 1906, holding that the loan of a gun to the State of Virginia might be made under the general powers of the Secretary of the Navy, there being no express statutory authority covering the case.) The Secretary of the Navy can not exchange a vessel belonging to the Navy, which has been condemned as unfit for naval purposes, for another vessel, notwithstanding the exchange might be of advantage to the public service. The disposition of such vessel is controlled by the law providing for the sale of vessels and materials which can not be advantageously used. (14 Op. Atty. Gen., 369.) For other cases, see notes to sections 161 and 355, Revised Statutes; and see various laws au- thorizing loan or transfer of Gov-ernment prop- erty — for example, joint resolutions of Febru- ary 3, 1913 (37 Stat., 1024), and February 9, 1917 (39 Stat., 902), authorizing Secretary of Navy to loan flags to inaugural committee, subject to certain restrictions — and see laws noted above and section 427, Revised Statutes. Records of department. — The Navy De- partment is unable to comply with the request of attorneys that original correspondence be furnished them from the files of the department, notwithstanding their offer to give any reason- able security for its custody and retm-n. The law requires that the records shall be kept safely in the_ department, and the Secretary of the Navy is made personally the custodian. (Let- ter of Hon. R. W. Thompst^n, Secretary of the Navy, May 12, 1879, published in Maurice v. Worden, 54 Md., 237; see also file 12475-64, Aug. 9, 1915.) it has been the iuA^ariable practice of the Navy Department to decUne to furnish in the case of legal controversies, at the request of the parties litigant, copies of papers or other infor- mation to be used in the course of the proceed- ings. (G. O. No. 121, Navy Dept., Sept. 17, 1914; see also file 1959-99, and 12475-53:1, Jan. 30, 1915.) The Na\y Department does not grant per- mission to attorn ey.s to make preliminary and informal examination of the records, but will promptly furidsh copies of papers or records upon call of a civil court before which proceed- ings are pending. (G. O. No. 121, Navy Dept., Sept. 17, 1914; see also file 5467-8, Mar. 27, 1907.) "No information shall be furnished from the records of the NaAy Department to attorneys or agents concerning the naval service of officers or enlisted men of the Navy until such attorneys or agents shall file a power of attorney in the department, sho^\■ing that they have authority from the person whose record is desired, or his legal representatives, to request such information, and!^ shall also file a state- ment of the purpose for which such information is desired. If such statement be deemed satis- factory to the department, the information will be furnished, provided the attorney or agent submits to the department the same proof of the identity of the person or persons he repre- sents, as is reqidred when the application for such information is made by the person or persons themselves." (Art. 26, Naval Instruc- tions, 1913.) It would be establishing a dangerous prece- dent for the Secretary of the NaAy to fmnish information fiom the official records for the use of an attorney in preparing a case against the United States in the Court of Claims, even though such attorney file a power of attorney from the legal representative of the person whose record is desired. The furnishing of such Information "might be construed in viola- tion of section 5498 Revised Statutes." The information sought might be furnished very properly upon the call of the Court of Claims. (Attorney-General to Secretary of the Navy, Jan. 18. 1915, file 12475-53: 1; see also sec. 164, Judicial Code, act Mar. 3, 1911, 36 Stat.,* 1141, and sec. 188, R. S.) [Section 5498, Re- vised Statutes, above-mentioned, was repealed by section 341, Criminal Code, act of March 4, 1909 (35 Stat., 1153), and similar provi'-ions were embodied in section 109 of said Criminal Code (35 Stat., 1107).] There is a class of communications which the courts will not reqiure to be produced in evi- dence where those having the custody of them object to their publicity on the ground of pub- lic policy. Such are ofiicial communications to the heads of Government, and between its different departments. "And where the law is restrained by public policy from enforcing the production of papers,the like necessity restrains it from doing what would be the same in effect, namely, receiving secondary evidence of their contents." (Maurice v. Worden, 54 Md., 254; citing 1 Green. Ev., sec. 251.) HowoA-er, where the Secretary of the Navy furnished copies of correspondence from the files of the department, for use by attorneys in the pjrosecution of a libel suit against the superintendent of the Naval Academy, it was held that such copies under the department's seal might be used in eAidence, as the Secre- tary of the Na-\y, by furnishing such copies, showed that he did not object to their pub- licity. (Maurice v. Worden, 54 Md., 254.) 356 Navy Department. PL 2. REVISED STATUTES. Sec. 419. Communications in writing passing between officers of the Government, in the course of official duty, relating to the business of their offices, are privileged from disclosure on the ground of public policy, and their production will not be compelled by courts of law or equity. Neither will secondary evidence of their con- tents be admis able, whether in the form of copies or of oral statements of witnesses who have read and recollected the same. An official letter from the head of an olfice to the head of the department, recommending a person for appointment as clerk in the former's office in place of one whose removal is recom- mended for inefficiency and bad conduct, is a privileged communication within the rule, and can not be admittted in evidence to sus- tain an action for libel brought against the head of the office by the person whose removal is recommended. (Gardner v. Anderson, 9- Fed. Gas. No. 5220. In this case, the head of the department declined to appear before a commission to take his testimony, or to produce any paper or copy, and sent the commissioner a letter to that effect. The appointment clerk who attended and was examined, by direction of the Secretary declined to produce any paper or to speak of the contents of any. _ The Secre- tary later declined to attend the trial in obedi- ence to a subpoena, and directed the United States attorney to state his reasons to the court. The court refused to proceed against the Secre- tary for contempt, as moved by plaintiff. The court advised plaintiff to apply to the Secretary for a copy of the letter. The Secretary replied that, at the date of alleged letter, the defendant was appraiser of merchandise, and any com- munications from him to the department were official in their nature, confidential, and pro- tected from disclosiu-e; and he, the Secretary, was not at liberty to furnish a copy of the same to enable the plaintiff to maintain an action against a late appraiser whose defense the Government had assumed. The plaintiff then called a clerk in the appraiser's office, who had charge of the official letter copying book. The court, however, excluded such secondary evi- dence, its decision being as stated above.) Removal of papers from existing records of officers is not approved. (File 4435-5, May 13, 1908.) The official records of the Navy Department should remain inviolate, and should not be changed a hundred years after the events they purport to record. Where it is alleged that the record of an officer is in error, the evidence in support of such claim may be filed with his record, thus showing just what is claimed and just what authority there is for each claim. (File 24413-5, July 12, 1913. See also note to Constitution, Art. I, sec. 7, clause 2.) For other cases, see notes to sections 161, 188, and 871, Revised Statutes. Sec. 419. [Establishment of Bureaus and Distribution of Business.] The busi- ness of the Department of the Navy shall be distributed in such manner as the Secretary of the Navy shall judge to be expedient and proper among the follow- ing Bureaus: First. A Bureau of Yards and Docks. Second. A Bureau of Equipment and Recruiting, Third. A Bureau of Navigation. Foiu-th. A Bureau of Ordnance. Fifth. A Bureau of Construction and Repair. Sixth. A Bm'eau of Steam Engineering. Seventh. A Bureau of Provisions and Clothing. Eighth. A Bureau of Medicine and Surgery. — (31 Aug., 1842, c. 286, s. 2, V. 5, p. 579; 5 July, 1862, c. 134, s. 1, v. 12, pp. 510, 511.) Advisory committee for aeronautics was estab- Ushed, and its duties prescribed, by act of March 3, 1915 (38 Stat., 930). Aircraft Board was established by act of _ October 1, 1917 (40 Stat., 296). Assistant Secretary of the Navv is authorized by act of July 11, 1890 (26 Stat. , 254) , and is to * ' perform such duties as may be prescribed by the Secretary of the Navy or required by law. " (Act Mar. 3, 1891, 26 Stat., 934.) Boards, commissions, coimcils, etc., are not authorized to perform any work at the ex- pense of appropriations made by Congr-ess, unless the creation thereof has been author- ized by law; no personal services from any executive department shall be employed by such boards, etc., nor expenses of members paid. (Act Mar. 4, 1909, sec. 9, 35 Stat., 1027.) Boards: The General Board was created by Navy Department General Order No. 544 of March 13, 1900. Its composition and duties were prescribed by Navy Regula- tions, 1913, Arts. R-104,_ 166, 167. It re- ceived statutory recognition in the act of August 29, 1916 (39 Stat., 563 and 39 Stat., 581). As to precedence of members of Gen- eral Board, see note to section 421, Revised Statutes, under "IV. Rank, Titles, and Precedence." Biu-eau of Construction and Repair is to desig- nate members of board to report cost, etc., of repairs to vessels (sec. 1538, R. S.), and to conduct work of investigating and deter- mining the most suitable and desirable shapes and forms to be adopted for naval vessels, by means of model tank at navy yard, Washington, D. C. (Act June 10, 357 Sec. 419. J't. 2. REVISED STATUTES. Navy Department. 1896, 29 Stat. , 372 . ) The Chief Conetructor to be member of Aircraft Board. (Act Oct. 1, 1917, 40 Stat., 297.) Bm"eau of Eqiiipmont and Recruiting; was des- ignated as Bureau of Equipment in annual appropriation acts commencing vAih the fiscal year 1892 ; pro^^siou was rnade for dis- tribution of the duties, funds, and em- ployees of the Bureau of Equipment among the other bm^eaus and offices of the Navy Department )iy naval appropriation acts for the fiscal years 19J 1-1914; and the Bu- reau of Equipment was abolished by act of June 30, 1914 (38 Stat., 408). Bureau of Medicine and Siu-gery is to recommend Medical Corps officers for appointment to the regular Medical Corps (act Aug. 22, 1912, 37 Stat., 344), and to detail expert as member of advisory board of hygiene laboratory (act July 1, 1902, sec. 5, 32 Stat., 713). Surgeon-General of the Navy is to be member of board to hear appeals from decision of Commissioner of Internal Revenue as to deleterious ingredients of imitation butter (act Aug. 2, 1886, sec. 14, 24 Stat. , 212) and of filled cheese (act June 6, 1896, sec. 15, 29 Stat., 256). Bureau of Pro\dsions and Clothing was desig- nated as Bureau of Supplies and Accounts byactof July 19, 1892 (27 Stat., 243, 245); it was required to keep property accounts of all supplies pertaining to the nava! estab- lishment anci to make annual report thereof to Congress, by act of March 2, 1889 (25 Stat. , 817) ; to audit property returns from officers of the Navy and determine responsibility for losses, by act of March 29, 1894 (28 Stat., 47); to make annual report of receipts and expenditures to the Secretary of the Navy, byactof May 13, 1908(35 Stat., 153); to cause payment of death gratuity to be made in cases of officers and enlisted men of the Navy and Marine Corps by act of June 4, 1920 (41 Stat., 824); to receive quai'terly re- turns of property from storekeeper at the Naval Academy, by act of May 13, 1908 (35 Stat., 153); to receive report of inspection and recommendation from general inspec- tor of the Pay Corps, on accounts of store- keeper at the Naval Academy, by act of May 13, 1908 (35 Stat., 153); to pay witness fees in naval coiu1;s by act of February 16, 1909 (sec. 12, 35 Stat., 622); to audit ac- counts of ships' stores profits, by act of June 24, 1910 (36 Stat., 619); and to keep money accoimts so as to show direct and indirect charges incident to cost of work, and make annual report thereof to Congress, by act of March 4, 1911 (36 Stat., 1267). Bureau of Steam Engineering was designated as Bureau of Engineering by act of June 4, 1920 (41 Stat., 828). Bureau of Yards and Docks to have super- vision of power plants at navy yards. (Act Apr. 27, ]904, .33 Stat., 337). Bureaus in contracting for naval supplies shall be at liberty to reject bids of persons who have previously defaulted (sec. 3722, R. S.), and shall not contract for supplies in foreign country except after advertisement in New York (sec. 3723, R. S. See laws relating to conti-acts noted under sec. 418, R. S.). Chief of Naval Operations, authorized by act of March 3, 1915 (38 Stat., 929), as amended by act of August 29, 1916 (39 Stat., 5.58), is charged, under the direction of the Secre- tary of the Navy, with the operations of the fleet and with the preparation and readi- ness of plans for its use in war; and is to succeed to duties of the Secretary of the Navy during the temporary absence of the Secretary and the Assistant Secretary. Hydrographic Office was established by law as a part of the Bureau of Navigation, and its duties prescribed by Congi-esa. (See sees. 431-433, R. S.) Judge Advocate General's Office was estab- lished by act of Junes, 1880 (21 Stat., 164), amended by act June 5, 1896 (29 Stat., 251), the duties of the Judge Advocate General as prescribed by Congi-ess being, under the direction of the Secretary of the Navy, to "receive, revise, and have recorded the proceedings of all com*ts-martial, courts of inquiry, and boards for the examination of officers for retirement and promotion in the naval service," and to "perform such other duties as have heretofore been per- formed by the solicitor and naval Judge Ad vocate General . " Nautical Almanac Office is provided for by section 436, Revised Statutes. (See note to that section as to consolidation of Nau- tical Almanac Office with the Naval Obser- vatory.) Naval Communications Office was established by appropiiations contained in act of May 29, 1920 (41 Stat., 664). Naval Intelligence Office was established by act February 24, 1899 (30 Stai., 874). See also General Order No. 292, March 23, 1882. Naval Observatory is included in Title X, "The Department of the Navy," by sec- tion 434, Revised Statutes, and is included in the annual appropriations for the Navy Department in the legislative, executive, and judicial appropriation act. Naval Records and!^ Library Office was estab- lished by the legislative, executive, and judicial appropriation act of March 4, 1915 (38 Stat., 1025), which consolidated appro- priations made in previous years for "Li- brary of the Navy Department" and "Office of Naval Records of the Rebel- lion." Solicitor's Office was created by the legislative, executive, and judicial appropriation act of May 22, 1908 (35 Stat., 218), which trans- ferred certain clerical positions fi-om the office of the Judge Advocate General to the "office of the solicitor." The duties of the solicitor were not fixed by statute, except that he should "perform the duties of the Judge Advocate Geneml of the Navy in case of the death, resignation, absence, or sickness of that officer " ; which pro\'ision, however, was omitted from appropriation acts for the following years, and is not now in force. (See file 24690-77^ Feb. 12, 21, 1908; file 25462-6, Apr. 22, 1909; file 3980- 1450, Nov. 6, 1918; and file 22724-51.) 358 Navy Department. PL 2. REVISED STATUTES. Sec. 410 The Navy pay ofl3.ce at Washington is not one of the "Isiireaus and offices" of the Navy Department within the meaning of a contract to deliver ice to the Navy Department and its various bureaus and offices. (File 6482, July 26, 1904.) The Marine Corps is not one of the bureaus of the Navy Department. _ It is a part of the Naval Establishment, but it is not a part of the Navy Department as established at the seat of government; it is under the supervision of an executive department, but that relation to the department is not the same as being a part of it. (11 Comp. Dec, 558; see also 28 Op. Atty. Gen., 487, and note to sec. 159, R. S.) "The office of the Judge Advocate General of the Navy, while simply designated as an office, is, nevertheless, one of the coordi- nate branches of the Navy Department, with responsibilities of no less importance than those of the chiefs of bureaus.'-' (S. Repts., vol. 2, 54th Cong., Istsess., 1895-96, No. 472.) "The office of Judge Advocate General is one of great responsibility and requires a high order of talent to successfidly perform the duties thereof." (H. Repts., vol. 1, 54th Cong.,- 1st sess., 1895-96, No. 285.) "Owing to the peculiar nature of the duties pertaining to the office of Judge Advocate Gen- eral in the Navy Department, it seems to be absolutely necessary that the officer appointed to said office shoidd be familiar with the law, forms and practice of courts-martial, the rules, regidations, and established customs of the Navy ; that he shoidd have practical experience in the naval service and an acquaintance with the application of the law and regulations to the rank, grades, ratings, and of the various classes of officers and enlisted men in the service, and that he should possess proper legal attain- ments to enable him to discharge satisfactorily the duties of that office.'' (H. Repts., vol. 2, 46th Cong., 2d sess., 1879-80, No. 459.) The duties required to be performed by the Judge Advocate General "areamoiig the most important branches of the public business which have been confided to the Navy Department." (H. Repts., vol. 2, 46th Cong., 2d sess., 1879-80, No. 459.) The office of the naval solicitor, as it existed under the Department of Justice [sec. 349, R. S.], wasunsuited to the requirements of the naval service. After that office was abolished [act June 19, 1878, 20 Stat., 205] and prior to the establishment of the office of Judge Advocate General [act June 8, 1880, 21 Stat., 164], the necessity of having an officer of the service, possessing the necessary qualifications, to sys- tematize the details or administration of law and justice in the Navy and perform the duties of Judge Advocate General was partially met by the detail of a suitable officer by the Secre- tary of the Navy to act in that capacity. But in view of the changes to which such office was subjected by their temporary assignments it was found important that Congress should fix the status of such officer by a provision for the Navy analogous to that which had long been estabUshed in the Army, except that the rank and pay of the Judge Advocate General of the Army are of a higher relative grade (brigadier general) than that given by law to the officer appointed to discharge similar duties as Judge Advocate General of the Navy (captain in the Navy or colonel in the Marine Corps). (H. Repts., vol. 2, 46th Cong., 2d sess., 1879-80, No. 459.) The business which it was proposed to assign to the office of Judge Advocate General by the act of June 8, 1880, ' consists of the records of all courts-martial, coiu-ts of inquiry, boards for the examination of officers for retirement and pro- motion, the preparation of charges and specifi- cations for coiu"ts-martial, the organization of courts and boards, the various claims fijed for investigation, numerous questions of law, regu- lation, and other matters. The records of pro- ceedings of the various courts and examining boards, many of them being voluminous, re- quire careful reading and examination prelimi- nary to action thereon by the Secretary. The claims filed for investigation and the questions of law and regulation arising in the department necessitate a thorough examination and con- sideration of the statutes, regidations, and estab- lished customs of the service relating thereto; and the bxisinesa generally of the office being so extensive, it is impossible for the Secretary, in the midst of other varied and important duties required of him, to give to this branch of the public business the attention and consideration that its importance demands. * * * All other executive depai'tments of the Government are provided by law with an officer to perform the duties therein similar to those required of the officer who may be appointed to the office of Judge Advocate General of the Navy." (H. Repts., vol. 2, 46th Cong., 2d sess., 1879-80, No. 459.) The word "revise" as used in section 1199, Revised Statutes, prescribing the duties of the Judge Advocate General of the Army with re- spect to court-martial proceedings, implies no authority to reverse; it indicates the discharge of a clerical duty, analogous to that of receiv- ing and recording the proceedings. (Ex parte Mason, 256 Fed. Rep., 384.) The creation of a new bureau in a depart- ment can only be authorized by act of Congress, designating its chief, defining his duties, and providing for the appointment or transfer of the necessary clerical force and messenger. (10 Op. Atty. Gen., 11, holding that the President was not authorized, without statutory enactment, to create a militia bureau in the War Department.) Contracts for bureaus. — "TheBin"eau of Supplies and Accounts is the piu"chasing agent of the Navy Department for all supplies, and should be so recognized," (File 28233-1216, June 1, 1914.) The law expressly authorizes the Secretary of the Navy to distribute the business of the department between the bureaus concerned in such manner as he deems fit. The Naval In- structions, 1913 (art. 1^651), provides that "all purchases and payments therefor shall be made under the dii-ection of the Bureau of Supplies and Accoimts, and orders directing such pur- chases and payments shall be given only by that bineau. When open purchase requisitions have been approved by chiefs of bureau, they shall be transmitted to the Bureau of Supplies and Accounts for action." It is also provided bv the Navy Regulations, 1913 (art. R-4641), 359 Sec. 419. PL 2. REVISED STATUTES. Navy Department. that "the word 'i>uivhase,' when used in the Navy Reguhitions or Naval Instructions, shall be construed a.s relating * * * to the con- tract or aijreement for the sale and delivery of any article or for the iicrformance of any serv- ing * * * " Thus interpreted, as it must be, the above article of the Naval Instructions expressly provides that the "contract or agree- ment * * * for the performance of any service" shall be made under the direction of the Bureau of Supplies and Accounts, and that "orders directing'' such contract or agreement shall be given "only by that bureau." (File 3973-120. Mar. 31, 1916.) The terms of naval contracts are settled by the administrative bureau; a requisition em- bodying the transaction is then sent to the Bureau of Sui)plies and Accounts, which pre- pares a formal contract in writing, in accordance ^vith section 3744, Revised Statutes. The con- tract is made by the United Slates through the administrative bureau, and the formal contract ^\^.ll be reformed where, through clerical error in the requisition, it did not embody the agreed terms. (Ackerlind r. U. S., 240 U. S., 531, reversing Lind v. XJ. S., 49 Ct. Cls., 635, and 12 Com]i. Dec, 447.) Duties of the various bureaus. — In the Navy, while the different bureaus and the manner of appointments of chiefs of bureaus are established by law, the descriptions and distribution of the duties performed in each bureau are left to the discretion and authority of the Secretary of the Navy, with the approval of the President. The powers vested in the Secretary- of the Na\y are of more than usual extent. Thus, for instance, in the organization of the Army the statutes define the duties of the chiefs of bureaus (or departments, as they are styled), suih as the Quartermaster, the Com- missary, the Ordnance officers, etc. (Op. Atty. Gen., Oct. 27, 1909, file 3980-530.) It is unquestionable that Congress has in- tended that the administration of affairs in the Navy should be through the bureaus created by the statutes now embodied in section 419, Revised Statutes. In isolated instances some of the duties of officers in one of the bureaus have been made the subject of statutory defini- tion; but the business of the department "shall be distribiited among these bureaus." This language is mandatory. The manner of the distribution is left to the discretion of the Set-retary. The instrumentalities through which he performs the business are fixed by the statute. Having the power to make the regu- lations, he can repeal, modify, or alter them. Having the power to distribute the business, he can change the distribution and make new distribution. Subject to restrictions in the appropriation acts, he can take duties from one bureau and a.ssign them to another bureau. (Op. Atty. Gen., Oct. 27, 1909, file 3980-530.) Congress makes appropriations for the naval service in recognition of the distribution of duties under section 419. In the appropriation acts the moneys appropriated for expenses are placed under the headings of the different bureaus in conformity with the requirements of sections 430 and 3676, Revised Statutes. WTiile, therefore, it is within the authority of the Secretary of the Navy to make any changes in the distribution of business that may seem to him expedient and proper, sui'h authority must be exercised so as not to conflict with any act of Congress. (Op. Atty. Gen., Oct. 27, 1909, file 3980-530.) The grant of power by Congress to distribute the business of the department, although general and extensive, must be considered in connection with other statutes in relation to the same subject matter. Thus, by the act of June 22, 1906, section 4 (34 Stat., 448), it is required that the annual estimates shall be prepared and submitted ' ' according to the order and arrange- ment of the appropriation acts for the year preceding," and that "any changes in such order and arrangement and transfers of salaries from one office or bureau to another office or bureau, or the consolidation of oflices or bureaus desired by the head of any executive depart- ment, may be submitted by note in the esti- mates. ' ' This provision does not interfere with the authority to redistribute the matters of administration or to transfer duties from one bureau to another, nor does it alter the manner of appropriations for the different bureaus. Indeed, it clearly recognizes the authority to change the duties of the several bureaus. But it also declares the manner in whii h changes in the appropriations shall be made. This applies to specific appropriations made for disbursements in the different bureaus. (Op. Atty. Gen., Oct. 27, 1909, file 3980-530. In this connection see act of Mar. 4, 1915, 38 Stat., 1084, with respect to transfer of funds between bureaus and departments.) Grouping of bureaus in "divisions." — The work of the Navy Department may be grouped under general divisions, each of which may include different bureaus; and in each division the Secretary of the Na\'y may detail an officer of the Navy as an "aid" to ad\'ise the Secretary on all matters pertaining to the duties of the division and to transmit orders of the Secretary to the various chiefs of bureaus and to other subordinates of the department, signing such orders "by direction of the Secre- tary of the Na\'y." However, such aids can not, individually or collectiA^ely, exercise any supervisory authority over the chiefs of bureaus. That is the exclusive pro\anceof the Secretary and can not be delegated by him. The author- ity of the aids to transmit orders "by direction of the Secretary" can not be considered as conferring authority to issue orders. This formula can not be used to warrant any inde- pendent action by fhe aids. The aids are merely the eyes and hands of the Secretary, and the grouping of the bureaus under divisions are merely convenient methods of enabling the Secretary to exercise his legal authority over them. (Op. Atty. Gen., Oct. 27, 1909', file 3980-530.) If the plan involved the creation of new offices and the appointment of new officers to perform the business of the department, it would be beyond the power of the Secretary, with the approval of the President, to make such regulations. That work has been provided for by the establishment of the bureaus and the appointment by the President, under his con- stitutional power, of the officers to administer their duties. To assign those duties to other of- 360 Navy Department. PL 2. REVISED STATUTES. Sec. 420. ficers in other bureaus or boards would be to cre- ate new offices and new officers, which would be not authorized and in conflict with existing law. (Op. Atty. Gen., Oct. 27, 1909, file 3980-530.) That officers detailed as aids under this plan can not by virtue of such detail perform the duties of the Secretary during the latter' s ab- sence, see note to section 179, Revised Statutes. [The "aids" referred to above, namely "Aid for Operations," "Aid for Personnel," "Aid for Material," and "Aid for Inspections," were established by Changes in Navy Regulations No. 6, of November 18, 1909, and were abol- ished by Changes in Navy Regulations No. 5, of July 15, 1915.] The Secretary of the Navy may performL any duties vested by law in the chief of a bureau during a temporary vacancy in such bureau chiefship. (File22724-7e, May 14, 1909, and see 28 Op. Atty. Gen., 487.) But where a contract provides that the chief of a bureau may under certain conditions annul the same, the Secretary of the Navy, during the tempo- rary absence of the bureau chief, has no author- ity to annul said contract. (Williams Eng. and Cont. Co., v. U. S., 55 Ct. Cls., 349.) Sec. 420. [Orders considered as emanating from Secretary.] The several Bureaus shall retain the charge and custody of the books of records and accounts pertaining to their respective duties ; and all of the duties of the Bureaus shall be performed under the authority of the Secretary of the Navy, and their orders shall be considered as emanating from him, and shall have full force and effect as such.— (.31 Aug., 1842, c. 286, s. 8, v. 5, p. 580; 5 July, 1862, c. 134. s. 4, V. 12, p. 511.) See note to section 418 Revised Statutes, as to department's books, records, and property. The orders of the Chief of Naval Operations shall be considered as emanating from the Secre- tary and shall have full force and effect as such. (Act Aug. 29, 1916, 39 Stat., 558.) The duties of the JudgeAdvocate General shall be performed under the direction of the Secretary of the NaA^. (Act June 8, 1880, 21 Stat., 164.) Legal liability of chiefs of bureaus for official acts. — See note to section 417, Revised Statutes, "Legal liability of Secretary for offi- cial acts." Orders issued by bureaus.— This statute does not mean to say that those bureaus, and the Secretary of the Navy in relation to them, are independent of the President. Of coiuse the chief of the bureau does not profess to speak in the name of the President, but in that of the Secretary-; yet his acts have legal effect as the acts of the President, represented, pro hac \'ice, by the Secretary of the Navy. (7 Op. Atty. Gen., 453, 474; see also McGowan v. Moody, 22 App. D. C, 148, noted under sec. 158, R. S.) It is well settled that the President may act through the heads of the different departments, and if the head of one of the executive depart- ments a( ts it will be presumed, in the absence of cA-idence to the contrary, that he acted by direction of the Preside nt. But no such power has been delegated to other subordinate officers , of the Government, whether civil or military, and the acts of such officers, without express authorization from the President or from Con- gress, are ineffectual for any purpose. Although the court will presume that the head of a de- partment acts by direction of the President in the absence of evidence to the contrary, this presumption does not extend down the line to all civil and military officers of the Government, of whatever grade. (Northern Pac. Ry. Co. v. Mitchell, 208 Fed. Rep., 469.) In all the cases considered — and We are aware of no authority to the contrary — it will be noted that the power of the President was exercised through the head of the department and not by a subordinate. (Truitt v. U. S., 38 Ct. Cls., 404.) The Chief of the Bureau of Navigation is not empowered to detach one member of a naval court-martial and substitute another without authority from the Secretary of the Navy who convened the court. Where this was done, the court was illegally constituted, and its judg- ment ought not to be enforced. (22 Op. Atty. Gen., 137.) _ Under this section, appointments issued by the Chief of the Bureau of Navigation to officers in the naval auxiliary servdce have the same legal effect as if they had been signed by the Secretary of the Navy. (14 Comp. Dec, 334. But ci\dlian employees of the bureaus and offices of the Navy Department must be appointed by the Secretary of the Navy or with his written approval, by express requirement of Art. 52, Naval Instructions, 1913, quoted under sec. 416, R. S.) _ This statute gives full authority to the heads of the varicus bureaus, and to the acting heads thereof, when properly designated, to issue under the authority of the Secretary of the Navy all orders pertaining to the business of their respective bureaus with the same force and effect as though the orders were issued by the Secretary himself. Nor is it necessary that such orders should afterwards be approved by the Secretary, but only that they should be issued under his authority. It is understood that the Acting Secretary has lately directed that all orders signed by the Chief of the Bureau of Navigation shall have the same force and effect as though signed by the Secretary. It may be doubted whether such an order was necessary, in view of the law and regulations defining the duties of that bureau; but suppcs- ing such specific authority necessary, this action on the part of the Acting Secretary would supply such authority. (9 Comp. Dec, 351.) "An order * * * issued by the Bureau of Navigation under authority of the Secretary of the Na\n>?, directing an officer to perform a journey, is 'sufficient authority for him to per- form the travel and to entitle him to mileage 361 Sec. 421. Pt. 2. REVISED STATUTES. Navy Department. therefor, without the approval of the Secre- tary." (OCoinp. Dec, 351.) The gi'iu-ral rule that orclere of the Bureau of Navigation have full force aud effect as orders of the Secretary of the Navy has no application where the law B])eci(ically directs otlicnnse, aud such special cases must be given ellect aa exceptions to the general rule. Thus where the law vests in the Secretary the exercise of per- sonal judgment or discretion, or reciuiri's nim personally to perform a certain duty he can not delegate to another the authority to exercise such judgment or discretion or designate another to perform the special duty which the law devolves upon him. (9 Comp. Dec., 351, citing 18 Op. Atty. Gen., 424, 432, and Reeside r. U. S.,2Ct. Cls.,1.) A statute, providing that where repeated travel b ^tween two or more points is performed by officers, "in such vicinity as in the discre- tion of the Secretary of the Navy is appropri- ate," he may direct that actual and necessary expenses only be allowed (act July 1, 1902, 32 Stat., 6G3), requires that the Secretary person- ally exercise his discretion in determining whether an allowance of expenses instead of mileage is appropriate, being limited in this respect to repeated journeys made between two or more places in such vicinity as he may decide upon. The decision of these questions can not be delegated to the head of a bureau of the Navy Department, nor to any one, bvit is imposed upon the Secretary himself. (9 Comp. Dec., 351.) See cases noted imder section 415, Revised Statutes, "Assistant Secretary of the Navy." Appeals from chiefs of bureaus. — It is competent for Congress to give finality to the determination of subordinate administrative officers, provided due process of law, that is, a notice and a hearing, is pro\'ided (Orchard v. Alexander, 157 U. S., 372). Where Congress does not do this, the head of a department may change the erroneous decision of a subordinate (U. S. V. Cobb, 11 Fed. Rep., 76); and appeals may be taken to the head of the department because of his supervisory powers over the whole business of the department (Knight v. U. S. Land Assn., 142 U. S., 161). In such cases the appeal should be to the head of the department and not to the President. (10 Op. Atty. Gen., 526.) Sec. 421. [Chiefs of Bureaus.] The chiefs of the several Bureaus in the Department of the Navy shall be appomted by the President, by and with the advice and consent of the Senate, from the classes of officers mentioned in the next five sections respectively, or from officers having the relative rank of captain in the staff corps of the Navy, on the active fist, and shall hold their ofiices for the term of four years. — (5 July, 1862, c. 134, ss. 1, 2, v. 12, p. 510; 3 Mar., 1871, c. 117, s. 10, v. 16, p. 537.) Amendment to this section was made by act of March 3, 1899, section 7 (30 Stat., 1006), by changing the words ' ' the relative rank of " to read ' ' the rank of . " Assistants to chiefs of bureaus are specifically provided for by the following laws: Biu'eau of Medicine and Surgery, section 1375 Re- vised Statutes. Bureau of Navigation, act of March 3, 1893 (27 Stat., 717). Bureau of Supplies and Accoimts, acts of July 26, 1894 (28 Stat., 132); March 3, 1899 (30 Stat., 1038) ; and f^ebruury 25, 1903 (32 Stat. , 890). Bureau of Orcbiance, act of May 4, 1898 (30 Stat., 373). Bureau of Steam Engineeiing, actof March3, 1905 (33 Stat., 1111). Bureau of Yards and Docks, Bureau of Construc- tion and Repair, Office of the Judge Advo- cate General, and Office of Chief of Naval Operations, act of August 29, 1916 (39 Stat. 558). Judge Advocate General is to be appointed ' ' from the officers of the Navy or the Marine Corps." (Act June 8, 1880, 21 Stat., 164.) Pay of chiefs of bureaus was fixed by section 1565, Revised Statutes, as highest pay of gi'ade to which they belong, not below that of commodore; the act of llarch 3, 1899, section 7 (30 Stat., 1005), provided that they should receive the same pay and allowances as a brigadier-general in the Army: the act of May 13, 1908 (35 Stat. , 128), provided that their pay and allowances "shall be the highest pay of the gi-ade to which they belong, and not below that of rear admiral of the lower nine;" the act of June 24, 1910 (36 Stat., 607), provided that their pay and allowances should be the highest shore- duty pay and allowances of the rear admiral of the lower nine; and the act of August 22, 1912 (37 Stat., 328), repealed the pro- vision of the act of June 24, 1910, without making any further provision on the sub- ject. [Act of May 13, 1908, was revived by the law last quoted. Comp. Dec, June 22, 1916, file 26254-2045.] By act of July 1, 1918 (40 Stat., 717), chiefs of bureaus in the Navy Department are to receive the same pay and allowaxices as chiefs of bu- reaus in the War Department. Pay of Chief of Na\'al Operations shall be $10,000 per annum (act Aug. 29, 1916, 39 Stat., 558); and he shall have such allow- ances as are or may be prescribed by or in pursuance of law for the grade of Cfeneral in the Army. (Act July 1, 1918, 40 Stat., 716.) Pay of Judge Advocate General was the high- est pay of a captain in the Navy or the pay and allowances of a colonel in the Marine Corps under the act of June 8, 1880 (21 Stat., 164), as amended by act of June 5, 1896 (29 Stat., 251); by act of July 1, 1918 (40 Stat., 717), he is to receive the same pay and allowances as the Judge Advocate General of the Army. 362 Navy Department. PL 2. REVISED STATUTES. Sec. 421. Eank of chiefs of bureaus was fixed as commo- dore by sections 1471 and 1472, Revised Statutes; the act of March 3, 1899, section 7 (30 Stat., 1005), provided that they should have rank of rear admii-al, if below that grade; the act of July 1, 1918 (40 Stat., 717), gave them rank corresponding to that of chiefs of bureaus in the War Department. Rank of Judge Advocate General was that of captain in the Navy or colonel in the Marine Corps, under the act of June 8, 1880 (21 Stat., 164), as amended by act of June 5, 1896 (29 Stat., 251); by act of July 1, 1918 (40 Stat., 717), he is given rank cor- responding to that of the Judge Advocate General of the Army. Rank of Chief of Naval Operations is that of Admiral. (Act Aug. 29, 1916, 39 Stat., 558.) Retirement of Chiefs of the Bui'eaus of Medicine and Siu-gery, Supplies and Accounts, Steam Engineering [now Engineering] and Construction and Repair, with rank of com- modore [now rear admiral] , if retired for age or length of service, was authorized by sec- tion 1473, Revised Statutes. Retirement of any officer who shall serve as chief of a bureau "and shall subsequently be retired," with "the rank, pay, and al- lowances authorized by law for the retire- ment of such bureau chief, ' ' was authorized by act of May 13, 1908 (35 Stat., 128). Retirement. — Chiefs of bureaus eligible for retirement after 30 years' service were entitled to the permanent rank, title, and emoluments of a chief of bureau, while on the active list, the same as they would have received if retired for age or length of service. (Act June 24, 1910, 36 Stat., 607.) This provision was repealed by act of Au- gust 22, 1912 (37 Stat., 328), which contained a proviso that no officer who had received the benefits of the act of 1910 should be deprived thereof on account of such repeal. Retirement of Chief of Naval Operations shall be with the lineal rank and retired pay to which he would be entitled if not so serv- ing. (Act Aug. 29, 1916, 39 Stat., 558.) Service. — Any officer with the rank of rear admiral who has heretofore served a full term and is now serving as chief of any bureau of the Navy Department shall be credited with service for all purposes as provided by section 1486 of the Revised Statutes, and nothing herein contained shall operate to increase the rank or pay of any such officer as now authorized by law. (Act July 11, 1919, 41 Stat., 140.) Staff officers who have served a full term as chief of bureau were thereafter exempted from sea duty, except in time of war, by section 1436, Revised Statutes. Titles of Chiefs of Bureaus of Medicine and Sin-gery, Supplies and Accounts, Steam Engineering [now Engineering], and Con- struction and Repair, shall be Siu-geon-Gen- eral. Paymaster General, Engineer in Chief, and Chief Constructor, respectively. (Sec. 1471, R. S.) I. Appointment of Chiefs of Bureaus. II. Term of Office, III. Status of Chiefs of Bureaus. IV. Rank, Titles, and Precedence. V. Pay of Chiefs of Bureaus and Assist- ants. VI. Retirement of Chiefs of Bureaus. VII. Assistants to Chiefs of Bureaus. I. Appointment of Chiefs of Bureaus. Who may be appointed chiefs of bu- reaus. — The act of July 5, 1862, reorganizing the Navy Department (12 Stat., 510), estab- lished eight bureaus therein, and in the second section made the following provisions with respect to the appointment of chiefs: "The President of the United States, by and with the advice and consent of the Senate, shall appoint from the List of officers of the Navy, not below the grade of commander, a chief for each of the Bureaus of Yards and Docks, Navigation, Equipment and Recruiting, and of Ordnance, and shall in like manner appoint a chief of the Bureau of Construction and Repair, who shall be a skillful naval constructor; and shall also appoint a chief of the Bureau of Steam Engi- neering, who shall be a skillful engineer, and be selected from the list of chief engineers of the Navy; and shall also appoint a chief of the Bureau of Medicine and Surgery, who shall be selected from the list of surgeons of the Navy; and a chief of the Bureau of Provisions and Clothing, who shall be selected from the list of paymasters of the Navy of not less than ten years standing." The subsequent act of March 3, 1871, which prescribes the number, rank, and pay of the officers of the various staff corps of tha Navy, contained near the close of the tenth section the following pro\iso (sec. 10, chap. 117, 16 Stat., 537): ^^And provided further, That chiefs of bureaus may be appointed from the officers having the relative rank of captain in the staff corps of the Navy on the active Hst." The commissioners who drafted the Revised Statutes treated the act of 1871, not as super- seding but as supplementing the act of 1862, and enlarging the power of the President with respect to the appointment of chiefs, so they brought the two together in section 421, with this explanation (Commissioner's Draft Rev. Stats., p. 235): "The Commissioners have treated the act of 1871, cited in the margin, not as repealing or superseding the restrictions in the act of 1862 on the appointment of chiefs of bureaus, but as giving an alternative or optional power of appointment; so that the President may make a given appointment either from the class indicated by the act of 1862 or from that indi- cated by the act of 1871, as he judges best." Congress adopted the revision as recom- mended, thus giving its apparent approval to the intsi-jiretation placed on the acts of 1862 and 1871 by the commissioners. (22 Op. Atty. Gen., 47; see also note to section 422, Pv,. S.) Retired ofl3.cer may be appointed. — Sec- tion 421, Revised Statutes, as punctuated, would apparently limit appointments to officers 54641°— 22- 24 363 Sec. 421. PL 2. REVISED STATUTES. Navy Department. on the active list, the clause, "on the active list." being separated from the other clauses by commit, and therefore qualifpng them all. Without the commas, the words '"on the active Ust' ' apply to appointments from the staff corps only. The original statutes wliich are consoli- dated in section 421 restricted appointments to the active list, only where made from the staff corps. Tlie change in the law, if made, rest-^, tlierefore, upon the mere in.sertiou of a comma in the revision. Wliere doubt exists as to the meaning of a section of the Revised Statutes, it is atlmissible in construction to se(>k: liglit in the hi.story of the legislation. AI.SO, a construction that tlie revision amends the law Ls not favored. Nor is a construction favored which is restrictive of the right of selection in making appointments. Accord- ingly, held, -while not tree from doubt, that a retired line officer is eligible for appointment as Chief of the Bureau of Navigation. (File 21-5, Dec. 11, 1907, Opinion of Solicitor. See also 22 Op. Atty. Gen., 47, noted above.) The statute authorizing the employment of retired officers on active duty would not em- power the Secretary of the Navy to order a, retired officer to perform the duty of Cliief of the Biu-eau of Navigation. Doubtless, however, such statute should be liberally construed, and, in so far as it has any bearing on the matter, its obvious puj-pose wiis to enlarge the eligiljility of retired officers for active duty. The inten- tion of Congress in passing it was to make retired officers generally available for whatever active duty they were able to perform. (File 21-5, Dec. 11, 1907, opinion of Solicitor.) The selection of the Judge Advocate General is not limited to the active Ust of the Navy or Marine Corps, but may be made from the re- tired list as well, since officers on the retired list come witliin the description of "officers" within the meaning of the act authorizing the appointment to be made. (8 Comp. Dec, 895.) Retired. oflB.cer not eligible. — Retired officers are not eligible for appointment as chiefs of bureaus, since section 421 in terms requires that bureau chiefs shall be appointed from officers on the active list. This requirement is not modified by the subsequent statute with respect to the assignment of retired officers to active duty, since by such assignment officers are not in fact placed on the active list, but are merely detailed for the performance of active duty. (See file 21, Nov. 25, 1902, Op. J. A. G.) The construction placed upon the law by the department, in its practice, is against the eligi- bility of retired officers for appointment as chiefs of bureaus. Officers so serving have, during their terms of office, been retired with- out vacating their positions; but it is under- etood that no officers on the retired Ust, during the past 15 years at least, have been selected to act as chiefs of bureaus, (l^^le 21-5, Dec. 11, 1907, Opinion of SoUcitor.) It would seem that under the laws authoriz- ing the assignment of retired naval officers to active duty, the Secretary of the Naw is not authorized to assign a retired officer to duty as chief of a bureau in the Navy Department in case of a vacancy, when the officer is below the required grade as fixed by sections 421-426, Revised Statutes. (28 Op. Atty. Gen., 489.) As to effect of retirement upon status of officer serving as chief of bureau, see below under "VI. Retirement of Chiefs of Bureaus." Temporary vacancies. — A naval officer assigned to duty as an assistant to the chief of a bureau in the Navy Department is not author- ized by section 178, Revised Statutes, in case of the death, resignation, absence, or sickness of the incumbent, to perform the duties of such chief until a successor is appointed or tlie absence or sickness shall cease, unless the ap- pointment of .such assistant is specifically pro- vided for by statute. In determining who is to act in the place of a chief of bureau during his absence, section 178, Revised Statutes, is to be read in connection with the laws which make provision for the appointment of officers in the bureaus of the Navy Department. Where the highest officer recognized by statute after the cliief of the bureau is the chief clerk in such bureau, the latter succeeds to the duties of the chief during a temporary absence unless other- wise directed by the President in accordance wT.th section 179, Revised Statutes. (19 Op. Atty. Gen., 503.) Officers who hold commissions in the naval service issued by the President, by and with the ad\dce and consent of the Senate, but do not hold any office in the Na\'y Department or in a bureau by such appointment of the Presi- dent after confirmation by the Senate, can not be legally designated by the President to act as cliiefs of biu-eaus, under section 179, Re\ised Statutes, in the absence of the incumbents. Accordingly, an officer of the Navy detailed as assistant to the chief of a bureau in the Navy Department, but whose appointment as such assistant is not specifically provided for by statute, is not eUgible for designation by the President, under section 179, Revised Statutes, to act as chief of bureau in the latter's al)sence. There is no more authority to authorize such an officer to perform the duties of the vacant office than there is to authorize any officer of the Navy not connected directly \vith the business of the department. (28 Op. Atty. Gen., 95.) During a vacancy in the office of chief of a bureau in the Navy Department, the Secretary or Acting Secretary of the Navy may sign mail requiring the signature of the chief of bureau. (File 22724-7f, May 14, 1909; see also 28 Op. Atty. Gen., 487, noted under sec. 179, R. S.; compare Williams Eng. and Cont. Co. v. U. S., 55Ct. Cls., 349.) A vacancy caused by the retirement of the chief of a bureau in the Navy Department can not be temporarily filled by the President under sections 178-181, Revised Statutes. (27 Op. Atty. Gen., 337.) For other cases, see notes to sections 177-182, RoA-ised Statutes. II. Term of Office. Commencement of term. — The four-year term of office of a chief of bureau commences on the date of his confirmation by the Senate. (10 Comp. Dec, 56.) "TMiere a new commission is accepted, it supersedes the old one; and the four years pre- scribed by law as the official term of the ap- pointee must commence to run from its date." 364 Navy Department. PL 2. REVISED STATUTES. Sec. 421. (2 Op. Atty. Gen., 333. This related to the appointment of a Navy agent, wMchwas for the term of four years under laws then in force, the same as chiefs of bureau.) The law, of course, controls special language in the nomination and confirmation. Section 421, Revised Statutes, makes the term of a chief of bureau four years from the appointment with the consent of the Senate. The term during which he served under a temporary appoint- ment was, by law, a different term from that which commenced when he was appointed with the consent of the Senate. Accordingly, where an officer was commissioned as chief construc- tor in April, 1878, after confirmation by the Senate, "from April 28, 1877," having pre- viously served under a recess appointment, held that notwithstanding the special wording of the nomination and the confirmation by the Senate, the term of office of the appointee as prescribed by section 421, Re\'ised Statutes, must be deemed to begin from the date of his appoint- ment, namely, in April, 1878, and not from "April 28, 1877," the date specified in the nomination. (16 Op. Atty. Gen., 656.) "The fiction famiUar to lawy-ers under the phrase nunc pro tunc [now for then] has no application in cases of appointments to office. Such executive action cannot, in the nature of things, operate by relation. Especially must that be so where, as here, the office during one portion of the very time to which the regular appointment and commission are made to re- late had been occupied by the appointee under another competent appointment and commis- sion, and during a second portion had been occupied by others in due course of law." (16 Op. Atty. Gen., 656.) Nominations to take effect from past dates are familiar in the naval service, but these are made under statutes relating to promotions, to fill vacancies occurring in due course, which are not apphcable to the appointment of an officer as chief of bureau. (File 21-5, Dec. 11, 1907.) Where a chief of bureau retired while serving under an ad interim commission, held that, if 8uch retirement rendered him ineligible for regular appointment by and with the advice and consent of the Senate [as to which point see cases noted above], the difiiculty could not be overcome by wording the nomination to take effect from a prior date when he was on the active list and when his ad interim commission as chief of bureau took effect. (File 21-5, Dec. 11, 1907.) Expiration of term. — "The chief of a bureau in the Na\^ Department can not law- fully hold over after the expiration of the term for which he was appointed. The general rule is that where Congress has not authorized the officer to hold over, his incumbency must be deemed to cease at the end of his term, though no appointment of a successor may then be made." (17 Op. Atty. Gen., 648; see also Romero v. U. S.^ 24 Ct. Cls., 331.) There is nothing in section 421 nor in any other of which I am aware which confers au- thority upon the incumbent of the office of chief of bureau to continue therein after the expiration of his term; and I am of opinion that in the absence of a statutory provision con- ferring it, such authority does not exist. Con- gress has in terms provided that certain officers whose appointments are for a definite term shall hold until their successors are appointed and qualified (see, for example, sees, 1841,1843, 1875, and 1876, R. S., concerning certain appoint- ments in Tenitories); from which it is plainly to be inferred that officers not thus authorized can not lawfully hold over: "Expressio uniua est exclusio alterius" — -the expression of one thing is the exclusion of another. (17 Op. Atty. Gen., 648, citing U. S. v. Eckford's Ex- ecutors, 1 How., 250, and 14 Op. Atty. Gen., 262, 263.) Chiefs of bureaus in the Navy Department do not hold over after expiration of the term of office for which they were appointed. In the draft of a proposed new revision of the statutes, the revisers added to section 421 the provision, "or until their successors are appointed and qualified," explaining that this addition was made in view of the opinion of the Attorney Gen- eral above cited ; but of course these words are not yet incorporated into the statute. Accord- ingly, where the term of the chief of a bureau in the Navy Department expires while the Senate is not in session, a recess commission should appropriately be issued, filling the vacancy thus created. (File 21-3, Nov. 13, 1907, Opinion of Solicitor. As to inherent power of President to fill temporary vacancies, see notes to sees. 177 and 181, R. S.) Removal by President. — The President has the power, without the concurrence of the Senate, to remove an officer (United States attorney) who was appointed for a fixed term, prior to the expiration of such term. (Parsons V. U. S., 167 U. S., 324; for other cases, see note to Constitution, Art. II, sec. 2, clause 2.) As to trial by court-martial, see below, "III. Status of Chiefs of Bureaus. ' ' III. Status of Chiefs op Bureaus. Not civil offices.^ — It is very clear that the office of Secretary of the Navy is a civil office. Congi-ess has not attempted to confine the ap- pointing power to any class or profession m choosing the incumbent for that position. But this can not be said of the several bureaus of the Navy Department, the chiefs of which must be appointed from certain classes of officers of the Navy. Wlien, therefore, it is said that these offices are civil, it must be shown satisfactorily why it was that Congress denied the appointing power the same range of selection in filling them as in filling the office of Secretary of the Navy and civil offices generally. _ It is quite clear to me that if Congress had intended to make the several bureaus of the Navy Depart- ment civil offices, it would have provided for the appointment of civilians to fill them, and not frustrated its purpose to secure the benefits of a civil administration by declaring that these offices should be filled by naval officers exclu- sively. (18 Op. Atty. Gen., 176.) Rank, title, pay, and retirement are the indicia of military, not civil, officers. No statute directly or indirectly classes these bureau chiefs as civilians, and it does not appear that they have ever been so regarded in the department. Gi^dng them a dual charac- ter, civil and military, might not only lead to 365 Sec. 421. Pt.2. REVISED STATUTES: Navy Department. confusion and inconvenience in the depart- ment, but deprive the chiefs themselves of some advantages secured to tliem bv tlie oppo- site practice. (Smith v. U. S., 26 Ct. Cls., 143.) Trial by court-martial. — "Under every system of niilitary hvw, for the government of either land or naval forces, the jurisdiction of courts-martial extends to the trial and punish- ment of acts of military' or naval ofticers wliich tend to bring disgrace and reproach upon the ser\dce of which they are members, whether those acts are done in the performance of mili- tary duties, or in a ci\'il position, or in a social relation, or in private business." (Smith v. \Mutney, 116 U. S., 168, 183.) The ('hief of the Bureau of Medicine and Surgery in the Kavy department is amenable to the jurisdiction of a naval court-martial upon charges and specifications preferred against him for acts done as such chief. (18 Op. Attv. Gen., 176; see also W ales v. Whitney, 114 U. S., 564.) The chief of a bureau (Paymaster General), may be removed from that oflice by Bentence of court-martial. (Smith v. U. S., 26 Ct. Cls., 143; see also Smith v. Whitney, 116 U. S., 181.) "As to the case of staff bureau ofTicers whose service has not been creditable and who have been guilty of misconduct or malfeasance in office, the law and practice provide for that case. Such an officer would be relieved of his duties, or, depending upon the seriousness of the offense, would be court-martialed. And section 1446, Revised Statutes, provides that no officer of the Kavy shall be placed on the retired list becauss of misconduct, but he shall be brought to trial by court-martial for such misconduct." (25 Op. Atty. Gen., 294, 298.) The office of chief of bureau is a military one, to the extent that its incumbent is amenable to trial by court-martial. (5 Comp. Dec, 822.) The Judge Advocate General of the Army may be tried by court-martial and suspended from rank and duty pursuant to the sentence of such court. (Swaim v. U. S., 28 Ct. Cls., 173; 165 U. S., 553; see also note to sec. 179, R. S.) Dual status of bureau chiefs. — The law requires the President to appoint chiefs of bureaus in the Navy Department from the list of 'officers in the Navy. Compliance with this law certainly could not have the effect to with- draw the appointed officer from that list, or to deprve him of the rank or pay to which he was or might become entitled by law. Such a result would involve injustice too gross to be imputed to Congress. The act limited the selection to naval officers, not below a certain grade, for the purpose of securing at the head of the bureaus named, the skill and experience ol prolonged service. But nothing could be more unjust, indeed, more absurd, than to de- prive the Navy of officers who possessed these qualities, by transferring them to positions which, under the law, they could hold but four years, when, if not reappointed, tliey would be retired from the public service altogether. The law has no such operation. It simply means that the officers appointed shall, for the term specified, be assigned to these positions, and it implies no withdrawal from the list of officers, and no loss of rank or pay. If the officer so assigned receive less pay by virtue of his rank in the Navy than the salary provided by the law for the chief of bureau, he is entitled to draw the latter salary in lieu of his pay. But if his naval pay exceed the salary of the office, he is not bound to accept the latter and relin- quish the former. If he be a rear admiral, he is entitled to the pay allotted by the law to the class of service he renders. (10 Op. Atty. Gen., 377; 27 Op. Attv. Gen., 337; Op. Attv. Gen., Mar. 15, 1911, file 22724-16:3.) The appointment by the President, by and with the advice and consent of the Senate, of a naval officer to be Chief of tlie Bureau of Na^•i- gation is an investiture of him with an addi- tional office. Wliile Chief of the Bureau of Navigation he remains a captain in the NaAy. By virtue of the former office, his orders have the force and effect of an order emanating from the Secretary of the Navy, and while he con- tinues to hold said office he has the higher rank attached thereto by law. (17 Op. Atty. Gen., 154; see also, as to Chief of Bureau of Steam Engineering, 27 Op. Atty. Gen., 340.) A naval officer by accepting the office of Cliief of the Bureau of Steam Engineering did not vacate the office and grade he already held of captain. His appointment as chief of bureau invested him with an additional office and an additional rank. His status "while holding said office" was that of an officer ot the line of the 'Ka.Yj of the grade of captain, with the addi- tional rank of rear admiral and the additional office of Chief of the Bureau of Steam Engineer- ing. (15 Comp. Dec, 860, citing 17 Op. Atty. Gen., 154, and 10 Op. Atty. Gen., 378.) An officer appointed to be chief of one of the Navy bureaus is in effect detailed to perform shore duty, retaining during the period of his incumbency his regular rank and grade on the Na\-y Register, and also filling the post of chief of bureau with the rank and emoluments inci- dental thereto. (27 Op. Atty. Gen., 337, 341, citing 10 Op. Atty. Gen., 378, 379.) A chief of bureau in the Na\^ Department is, therefore, an incumbent of two offices. First, he is an officer of the Na-\y holding in this case the rank of captain; second, he had been de- tailed by the President, by and with the ad^dce and consent of the Senate, to hold the office of chief of bureau, with the rank of rear admii-al for a period of four years. (27 Op. Atty. Gen., 337, 341.) For other cases see below, "TV. Rank, Titles, and Precedence." and particularly Opinion of Attorney General, March 15, 1911 (file 22724- 16:3) noted under "Rank of chiefs of bureaus." Ofl&ce of chief of bureau not a "grade" in the Navy. — While the office of chief of bureau is a military one, to the extent that its incumbent is amenable to trial by court-mar- tial, the office itself does not constitute a grade in the Navy. The next higher "grade" re- ferred to in section 11 of the Na^-y personnel act (i\Iar. 3, 1899, 30 Stat. , 1007) is one of the differ- ent gradations in the line of the Na^^ or in the several staff corps, and does not include the of- fice of chief of bureau. (5 Comp. Dec, 822.) The grade to which an officer belongs, under section 1457, Revised Statutes, while liolding the office of Chief of the Bureau of Navigation is that of captain, which in this case was his regular grade in the line, and not that of the rank incidental to his temporary occupation of 366 Navy Department. Pt.2. REVISED STATUTES. Sec. 421. another and distinct office. For it is by virtue of liis office of captain, and not of chief of bu- reau, that he is entitled to examination for pro- motion and that he is entitled or subject to re- tirement. It may be further remarked that, within the language of section 1457, he "con- timies to be borne on the Navy Register" as captain, and that the moment he ceases to be chief of Ijureau he loses his temporary rank in- cident to that office. (17 Op. Atty. Gen., 154.) That Congress regards the grade to which the bureau chief belongs as something different from the position of chief of bureau is further evidenced by the provisions of the naval appro- priation act of May 13, 1908 (35 Stat., 128), that "the pay and allowances of chiefs of bureaus in the Na\'y Department shall be the highest pay of the grade to which they belong, and not below that of rear admiral of the lower nine." (27 Op. Atty. Gen., 376, 383; 15 Comp. Dec, 860.) As I have lieretofore pointed out, the office of chief of bureau in tlie Navy Department is not designated in the acts of Congress as a grade. On the contrary, in section 421 of the Bevised Statutes it is called an "office," and in section 1471 a "position"; by section 1471 the Chief of the Bureau of Construction and Kepair has tlie "title" of Chief Constructor. Under the act of March 3, 1899, the incumlient, if an officer be- low the rank of rear admiral, has that "rank" while holding the office. The office of Chief Constructor was not formerly a grade in the Navy, and was not made such because the rank, title, and emoluments of the incumbent, there- tofore temporary, were made permanent 1)y the act of June 24, 1910 [now repealed]. (28 Op. Atty. Gen., 526, citing 27 Op. Atty. Gen., 376, 379. See also file 5038-19, Feb. 29, 1912.) Neither, in my opinion, was the honorary "rank " of rear admiral, which he held as an in- cident to his occupation of the office of chief of l)ureau, a "grade" within the meaning of the act of June 7, 1900. (31 Stat., 703, reenacted, with modifications, by act Aug. 22, 1912, 37 Stat., 329. )_ The grade from which he was re- tired , within the meaning of said act, was there- fore tliat of captain. (15 Comp. Dec, 860.) Ofl3.ce held to be a grade. — Section 1457, Ke^ised Statutes, which occurs in a chapter of law relating to retired officers of the Na^y in general, although perhaps especially contem- plating the line, provides that officers retired from active serAdce shall be placed on the re- tired list of officers of the gixide to wliich they belonged, respectively, at the time of their retirement, and continue to be Itorne on the Navy I .egister. Grade here appears to mean rank in the line, or by relation to the line — using rank and grade interchangealily, as those words sometimes are used , and not as indicating an officer's number in a particular grade. Sec- tion 1471 speaks of the headship of a bureau as a "position"; section 1472 as an office; section 1473 again as a position; and the Navy Regula- tions, incorporating the statutes and adding to thena administrative details, use both terms. I think, however, that grade may include such staff office-i, and may mean in an untechnical sense and by a certain equity, the liighest post to the rank and title of which an officer has at- tained upon his retirement, and that section 1457 fairly includes the office or position of Pay- master General. (25 Op. Atty. Gen., 294; dis- approved, 27 Op. Atty. Gen., 376.) By the use of the word "grade" Congress intended to indicate any marked distinction fixed by law among officers which would be expressed in their commission, title, or pay, not excluding chiefs of bureaus having a cer- tain rank. (31 Op. Atty. Gen., 505, 515.) For other cases, see below, "VI. Retirement of Chiefs of Bureaus." IV. Rank, Titles, and Precedence. Rank of chiefs of bureaus. — The Navy per- sonnel act of March 3, 1899, section 7 (30 Stat., 1005), provides that "when the office of chief of bureau is filled by an officer below the rank of rear-admiral, said officer shall, while holding said office, have the rank of rear-admiral." Similar provisions were previously contained in sections 1471 and 1472, Revised Statutes, except that the rank of bureau chiefs was there fixea as the "relative rank" of commodore instead of the actual rank of rear admiral. By act of July 1, 1918 (40 Stat., 717), chiefs of bureaus in the Navy Department, including the Judge Advocate General, shall while so serving have corresponding rank as prescribed by law for chiefs of bureaus of the War Depart- ment and the Judge Advocate General of the Army. Of coiuse, it is not to be doubted that the advanced rank and pay attached to service as a bureau chief ceases when the term of service is over and other active service resumed. The former relative rank pro tempore, the present actual rank, are only while holding said posi- tion; and no doubt a corollary to be drawn from this is that the title falls also if and when an officer returns fx'om active service in the bureau to active service in his corps. (25 Op. Atty. Gen., 294; other portions of this opinion were disapproved in 27 Op. Atty. Gen., 376.) The moment an officer ceases to be chief of bureau he loses his temporary rank incident to that office. _ (17 Op. Atty. Gen., 1.54.) In the opinion of the department, where the law creates an office with a fixed term and con- fers upon the holder of that office a certain rani dming his occupancy thereof, the rank thus conferred ends for all purposes and in all re- spects with the term of the office, except as otherwise proAided by law. When the terms of office held by the chiefs of bureaus to wliich the rank of rear admiral was by statute annexed have ended, with them have ended the accom- panying rank. Without a new appointment the officers holding these j)ositions would return to their respective ranks in the line or staff of the Navy, and their ranks there would be af- fected in no way by the fact that they had, as an incident of service in the bureaus, tempo- rarily enjoyed a higher rank. All the force and effect of their commissions as chief of bureau have been expended when the term of office ends, and unless reappointed they would hold only effective and living commissions as officers of their regular grade in the Navy. (File 4649--02, July 17, 1902.) "In the course of my investigation it has appeared that upon the appointment of Rear- Admiral Taylor on the 29th day of April, 1902, 367 Sec. 421. Pt. 2. REVISED STATUTES. Navy Department. lis chief of the Bureau of Navigation, a com- mission was issued to him as such ' with the rank of rear-admiral from the 2')th dav of April 1902.' This commission was erroni'ou.sly expressed, as the provision of the 'Personnel Act' which gives the rank of rear-admiral to the chiefs of bureaus while holding such office is applicable only in case the 'otfice is filled by an officer below the rank of rear-admiral.' As at the time Rear-Admiral Taylor was not an officer within the description of the act, it had no effect upon his rank and his commission as chief of the Bureau of Navigation should not have attempted to confer upon him a rank which he already possessed independently of the statute." (File 4G49-02 July 17, 1902; see also 31 Op. Atty. Gen., 557.) The Navy personnel act changed the rank of chiefs of bureaus from the "relative rank of commodore" to the "rank of rear-admiral." New commissions were issued to those holding the offices of chiefs of bureaus at the time of the passage of this act, for the unexpired portions of the terms for which they had been appointed, "with the raiik of rear-admiral." It may well be doubted whether these commissions were not entirely superfluous. They were not of such character as to amoimt to new appoint- ments or reappointments. The chiefs of bu- reaus were already appointed to their positions for a period of four years, and the new rank which they enjoyed came not by virtue of any new appointment or commission but was annexed to their office by statute law. (File 464&-02, July 17, 1902; see also file 22724-33, Aug. 22, 191G; 22 Op. Atty. Gen., 480. As to whether officers should be given new commis- sions when merely advanced in rank, without change in office or grade, see note to Constitu- tion, Art. II, sec. 3.) An officer of the Na\^'^ or Marine Corps serving as Judge Advocate General has actual rank as a captain in the Navy or a colonel in the Marine Corps. His rank while he holds this office is not an assimilated rank, but an actual rank. His rank is a fact, not a courtesy. (Remey v. U. R., 33 Ct. Cls., 218; 8 Comp. Dec, 895.) The act of June 24, 1910 (36 Stat., 607) [re- peated by act Aug. 22, 1912 (37 Stat., 328)], provided that "all officers of the NaAy who are now serving or shall hereafter serve as chief of bureau in the Na^-y De])artment, and are eli- gible for retirement after thirty years service, shall have, while on the active list, the rank, title and emolitments of a chief of bureau, in the same manner as is already pro\'iiled by stat- ute law for such officers upon retirement by reason of age or length of service, and such offi- cers after thirty years service shall be entitled to and shall receive new commissions in accord- ance with the rank and title hereby conferred." Under this law a naval ofiicer who was a bureau chief in the Na^y Department, and who attained 30 years' service, thereby becoming eligi])le for retirement, was entitled to retain the rank, pay, and emoluments of such bureau c:hief on the active list if he then resigned or was reIllo^ ed from his position of bureau chief and returned to general service. This is the only interpre- tation which can give force and effect to ail the language used. For if the intention had been to confer this "rank, title, and emoluments ' only duruig the continuance of such ofiicer as chief of bureau, this ])royision as to continu- ance would have been (juite unnecessary; for the rank, title, and emoluments would, of course, contuuie unless otherwise pro%ided by law so long as the officer continued in such office, and the other provisions would have meant precisely the same without this clause as with it. The only possible effect of that clause is to continue, as it i)lainly does, such rank, title, and emoluments (hiring the time that the officer remains on the active list of the Navy, whether as bureau chief or otherwise. (28 Op. Atty. Gen., 429; quoted in 28 Op. Atty. Gen., 529; and Op. Atty. Gen., Mar. 15, 1911, file 22724-16:3.) [The oflicers who received per- manent commissions under tliis act prior to its repeal and wlio were not affected by such repeal were Rear Admiral R. F. Nicholson, chief of the Bureau of Navigation, ( hief ( on- structor ^\"ashington L. C apps. Paymaster Gen- eral Eustace B. Rogers (I-ile 22724-18), and Paymaster General Thomas J. Cowie.] \\here the ofiicer was ser^dng as chief of bu- reau on June 24, 1910, and then had 30 years' service, he is entitled to a permanent commis- sion from the date of the act. (Op. Atty. Gen., Mar. 15, 1911, file 22724-16:3.) A rear admiral of the senior nine, serving as chief of the Biu-eau of Ordnance, should not be given another commission imder the act of June 24, 1910, as he already had the permanent rank of rear admiral, and that act did not, there- fore, confer any rank upon him. Also, the law should not be construed so as to require the doing of a futile or useless thing. (Op. Atty. Gen., Mar. 15, 1911, file 22724-16:3). The chief of the Bureau of Supplies and Ac- counts, upon completion of 30 years' service, is entitled under the act of June 24, 1910, to a per- manent commission with the rank of rear admi- ral, and not commodore. (Op. Atty. Gen., Mar. 15, 1911, file 22724-16:3.) Where an officer was serving as chief of bu- reau on June 24, 1910, and then had 30 years' service, he is entitled to a permanent commis- sion from the date of the act, although before such commission was issued he was retired. Under these circumstances a commission under the act of June 24, 1910, may be issued nunc pro tunc, and confirmation by the Senate is not re- quired. (File 22724-18, Dec. 4, 6, 1911, and Jan. 3, 1912.) The purpose of the act of 1910 qiute clearly was to extend to chiefs of bureaus becoming eligible for retirement the same privileges as under the prior law they could claim upon ac- tual retirement. This affords an adequate motive for and explanation of the new legisla- tion ; and it serves to show at once that the act of 1910 had a logical and important purpose. (28 Op. Atty. Gen., 531.) The sole ])urpose of the act of June 24, 1910, was to make permanent the rank, titl3, and emoluments of an ofiicer serving as chief of bureau, who had become eUgible for retirement by reason of age or length of service, but who preferred to remain on the active list. Accord- ingly, the passage of said act and the issuing of a permanent commission thereunder to the Chief Constructor, did not operate to create a new grade in the Construction Corps. No vacancy 368 Navy Department. Pt.2. REVISED STATUTES. Sec. 421. was created thereby in the grade of naval con- structor nor in the total number of naval con- structors and assistant naval constructors pro- vided by law. Since the office of cliief of bureau was not a graile prior to the time the incumbent became eligible to retirement after 30 years' service, it would seem necessarily to follow that the mere issuance of another com- mission "in accordance with the rank and title" theretofore conferred, and the making permanent of such theretofore temporary rank, title, and emoluments, would not have the effect of making it a grade. To hold otherwise would operate to increase to that extent the Naval Establishment, although there is no in- dication of such an intention on the part of Congress in the language of the statute. (28 Op. Atty. Gen., 526; followe I in case of line ofhcer serving as Chief of the Bureau of Naviga- tion, Op. Atty. Gen., Mar. 15, 1911, file 22724- 16:3.) A line officer serving as Chief of the Bureau of Navigation continues in his regalar grade, that of captain, notwithstanding the issuance to him of a permanent commission with the rank of rear admiral in accordance vA\h the act of June 24, 1910. Accordingly, when he is reached in regular course for promotion to the grade of rear admiral, he must qualify physically and pro- fessionally prior to such promotion. (Op. Atty. Gen., Mar. 15, 1911, file 22724-16:3.) The only way to give effect to the law of June 24, 1910, as construed by the Attorney General, is to hold that its result was to make permanent the dual status formerly occupied temporarily by the officer serA'ing as ( hief Con- structor at the head of the Bureau of ( onstruc- tion and Repair. Accordingly, held that such oflicer continue«l to hold his regular place in the grade of naval constructor, although at the same time enjoying the rank, title, and emol- uments of Chief ( onstructor under a permanent commission. (File 5038-19, Feb. 29, 1912.) Titles of chiefs of bureaus. — Unless the numerous laws which have established the offi- ces of the service or subsequently affected them, positively affix or altogether prohibit the titles which it is claimed or suggested should be used by chiefs of bureaus, the matter is subject to the administrative settlement of the Secretary of the Navy, and does not involve legal ques- tions upon which the Attorney General may render an opinion. That is to say, the only proper inquiry for the Attorney General is whether, and how far, a rule has been laid down by the statutes which restrains the disposition of the subject by Executive order or depart- ment regulation and usage. (25 Op. Atty. Gen., 122.) Section 1471, Revised Statutes, as amended, provides that the Chiefs of the Bureau of Medicine and Surgery, SuppUes and Ac- counts, Steam Engineering [now P^ngineering], and Construction and Repair, "shall have, respectively, the title of Surgeon-General, Paymaster-General, Engineer-in- Chief, and Chief Constructor." The titles thus fixed by statute were not affected by the Navy per- sonnel act of March 3, 1899 (30 Stat., 1005), providing that "when the office of chief of bureau is filled by an officer below the rank of rear-admiral, said officer shall, while hold- ing said office, have the rank of rear-admi- ral," for the same act provided that it should not be construed "as changing the titles of offi- cers in the staff corps of the Navy." The bu- reaus named in section 1471 are the staff bureaus of the Navy, under the existing organization, excepting that the Engineer Corps (steam engi- neenng) has now been transferred to the line by the personnel act of 1899. Accordingly, held that the titles of the existing staff bureaus are positively fixed by section 1471, Re\d8ed Statutes, and are unchanged by the later legis- lation of March 3, 1899. (25 Op. Atty. Gen., 122. See note to sec. 422, R. S., as to " line " and "staff" bureaus as now existing.) "Nor is it necessary to discuss and consider the distinctions between 'rank,' 'grade,' and 'title,' which are different aspects or attributes of office. It is sufficient to say that the terms bespeak relations and functions of the thing, and are not to be confounded ; and that a statute which confers upon an officer the rank and pay of another grade does not, also, necessarily con- fer the title." (25 Op. Atty. Gen., 122, 123.) Respecting bureaus \\hich, though aiding in central administration, are not technically of the staff, and respecting line officers serving as chiefs of those bureaus, and respecting the special case of the Judge Advocate General, in all these cases the law lays down no explicit rule relative to titles, and hence in those situ- ations and aspects the subject may and should be disposed of by Executive order, or Navy regulations and u-sage, paying due regard to' such logical inferences or uecessaiy effect re- specting staff t'.tles in general as the Secretary of the Navy may deem to be derivable from the statutes. (25 Op. Atty. Gen., 122; affirmed 25 Op. Atty. Gen., 294.) "The post of Paymaster-General is an office known immemorially in the military service, with as definite, if not as technical, status as regards rank, grade, and title as any office of the line. 'Paymaster-General of the forces,' is a historical phrase, applied either to land or sea forces, not restricted to a particular force in the field or at sea, and not to be narrowed to the conception of a mere detail in administration, so as to strip the name of a certain independent rank and dignity as a definite office." (25 Op. Atty. Gen., 294, 295.) "It seems certain that military usage uni- versally recognizes that the highest legal rank which an officer attains marks the title accorded to him in practice for all purposes of courtesy and etiquette." (25 Op. Atty. Gen., 294, 295.) The head of a department for his own purposes as such has authority to designate bureaus and offices therein and to cause his subordinates to designate them in official communications by names other than those theretofore borne by such offices. There is no statute or rule of law which forbids the employment of certain names in such cases, where the head of the depart- ment considers that new relations acquired by such branches of business under a reorganiza- tion of hisdepartment so requires. Congress has not seen fit to so hamper a coordinate branch of the Government. Its own use of names is not such a prohibition. There is no legal objection to the employment of two names or many names for the same object nor will it be "inconsistent 369 Sec. 421. PL 2. REVISED STATUTES. Navy Department. with law '■ for the head of the department under section IGl, Revised Statutes, to make use of other names than those used by ("ongress. Names are ordinarily free for the person speak- ing or writing to choose. (24 Op. Atty. Gen., 697). "The chiefs of the Bureaus of Medicine and Surgery, Sujjplies and Accounts, Engineering, Construction and Repair, and Yards and Docks, while holding these oliices, shall have, respec- tively, the title of Surgeon General of the Navy, Paymaster General of the Navy, En- gineer in Chief of the Navy, Chief Constructor of the Navy, and Chief of Civil Engineers of the Navy. Each such chief of bureau, however, shall be addressed and designated by the title of his rank, in written communi- cations the title of his ofhce to be stated next after his name. ' ' (Art. 152, Navy Regs. , 1920 ; see also Art. R.-1006 (2) Navy Regs. 1913, as amended by C. N. R. 12, Sept. 12, 1918.) See section 1471, Revised Statutes, and note thereto. Precedence of chiefs of bureaus. — Chiefs of bureaus sliould sign papers, where joint signa- tures are necessary', in order of their seniority in the service, and not in order of the seniority of bureaus. _ "While the question is, perhaps, not of grave importance, the department considers tliat, since it has been raisetl, it must be held that the rule universally governing in military organizations, that papers should be signed in order of rank, must prevail." (File 6417, Feb. 18, 1907, re precedence of Chiefs of Bureaus of Construction and Repair, and Steam Engineer- ing-. > The precedence of a chief of bureau is deter- mined by the date of the existing commission which confers upon him the rank of rear admiral and is not at all ai'lected by the date he first at- tained the rank of rear admiral under previous appointments as chief of bureau. The effect of reappointment is not to continue the former term, but to create a new one. (File 4649-02, July 17, 1902.) Where a naval officer with the rank of rear ad- miral is commissioned as chief of bureau, his precedence is determined by the date of his commission as rear admiral and not by the date of his subsequent commission as chief of bureau. The latter commission did not confer upon him the rank of rear admiral which he already held, as under the statute it is only "when the office of chief of bureau is filled by an officer below the rank of rear admiral,"' that his commission as chief of bureau confers upon him the rank of rear admiral "while holding said office." (File 4649-02, July 17, 1902.) Where the Chief of the Bureau of Navigation was commissioned as such ou April 29, 1902, but had previously been co;umi.ssioned as rear admiral in the line in the ordinary course of promotion on February 11, 1901, by virtue of the latter commission he takes precedence of the Chief of the Bureau of Equipment [now abolished], whose commission as such is dated December 18, 1901, notwithstanding that the latter had pre\'iously served as cliief of bureau ■with the rank of rear admiral under commissions dated August 19, 1899, and December 1, 1899, the first being an ad interim commission. If the two officers concerned were requested to pro- duce the commissions by which they claim and holdtherankof rearadmiral, one would produce his commis.sion dated February 11, 1901, as rear admiral in the line, and the other would produce his e.\.iBting commission as chief of bureau dated December 18, 1901. Without the commission of December 18, 1901, the latter officer would hold only an effective and living commission as captain in the line, all the force and effect of his former commissions as chief of bureau having been expended. (File 4649-02, July 17, 1902.) Section 1467 of the Revised Statutes provides that " line officers shall take rank in each grade according to the dates of their commissions." Whether this section of the statute applies to a case where one line officer holds a commission as rear admiral I y virtue of promotion in the ordinary course, and another line officer has the rank of rear admiral by virtue of his position as cliief of bureau, may not be entirely clear. Nevertheless it states the rule of priority which must, by m-litary usage and apart from statute law, ) e applied to officers having rank in the same grade in the Navy. (File 4649-02, July 17, 1902.) The personnel act of March 3, 1899, changed the rank of chiefs of bureaus from commodore to rear admiral. Accordingly, commissions were issued to those holding the offices of chiefs of bureaus at the time of the passiige of the per- sonnel act for the unexpired portions of the terms for which they had been appointed, "with the rank of reai'-admiral." These com- missions "were not of such character as to amount to new appointments or reappoint- ments," as the chiefs of bureaus were already appointed to their positions for a period of four years, and the new rank which they enjoyed came not by virtue of any new appointment or commission, Lut was annexed to their office by statute law. It may well be dou")ted whether the new commissions were not entirely super- fluous. Held, that these commissions for the unexpired portions of the terms of office to which chiefs of l)ureaus had been respectively previously appointed did not affect their rela- tive rank and precedence. (File 4649-02, July 17, 1902.) Assuming, without deciding, that General Order 544, constituting the General Board, des- ignating the Chief of the Bureau of Navigation as the second member thereof, and providing that "in the a' sence of the Admiral of the Navy the chief of the Bureau of Navigation will pre- side at meetings of the Board and exercise the functions of President of the Board," does not affect the order of precedence established by law, nevertheless held that the Chief of the Bu- reau of Navigation takes precedence, l)y virtue of his commission as a rear admiral in the line, ahead of the chief of another l)ureau whose rank in the line is captain and whose commission as chief of 1 >ureau is later in date than the commis- sion of the Chief of the Bureau of Navigation as rear admiral in the line. (File 4649-02, July 17, 1902, afiu-ming decision of the Admiral of the Navy as to seating of members of the General Board.) In the absence of the Secretary of the Navy, the Assistant Secretary of the Navy, and the Chief of Naval Operations, the duties of the Secretary of the Navy, by airection of the Presi- 370 Navy Department. Pt. 2. REVISED STATUTES. Sec. 421. dent, are to be performed l)y the following des- ignated chiefs of lureaus, in the order named: The Chief of the Bureau of Navigation; in his absence, the ( hief of the Bureau of Ordnance; and in the absence of those two, the Chief of the Bureau of Engineering. (File 1159-765, Bu. Nav.; Navy Reg., 1920, art. 392, as amended; see also file 22724^0, Apr. 24, J 919, and see note to sec. 415, R. S., under "Secretary of Navy.") A Paymaster General in the Navy having the permanent rank, title, and emoluments of a chief of 1 ureau 1 y virtue of the act of June 24, 1910 (36 Stat., 607— now repealed), although his term of oUice as i. ureau chief has expired, does not, while serving as member of a general court- martial, take precedence of line officers whose commissions as rear admiral are of a later date than his, 1 ut whose length of service in the Navy exceeds his total length of actual and con- structive service. Precedence in such case is determined by length of service, under sections 1485, 1486, Revised Statutes, and not by date of commission. (File 28025-385:5, Oct. 30, 1915, overruled by file 22724-40, Apr. 24, 1919, con- struing act of Aug. 29, 1916 (39 Stat., 578), under which it is held that all officers, line and staff, take precedence by date of com- mission. Compare 32 Op. Atty. Gen., 476, file 11130-63:8, noted under sec. 1485, R. S.) V. Pay of Chiefs op Bureaus and Assistants. By act of July 1, 1918 (40 Stat., 717), chiefs of bureaus in the Navy Department, including the Judge Advocate General, shall receive the same pay and allowances as chiefs of bureaus and the Judge Advocate General in the War Department. Prior to this enactment the pay of these officers was governed by the statutes and decisions noted below: Entitled only to shore-duty pay. — The 10 per cent additional pay provided by the act of May 13, 1908, for officers of the Navy \ hile serving on sea duty and on shore duty beyond the continental limits of the United States is not a part of the ' ' pay of the grade " and should not be included in computing the "highest pay of the grade to a hich they belong" of chiefs of bureaus in the Navy Department and the as- sistants thereto under said act. (14Comp. Dec, 929,88 S. and A. Memo., 756; aflirmed Comp. Dec, Aug._ 7, 1908, 90 S. and A. Menio., 817.) It is a primary rule in the construction of stat- utes that the intention of the legislature shall be followed when the intention is shown. Re- ports of committee show that the purpose of the Navy Pay Act of May 13, 1908, was to place chiefs of bureaus in the Navy Department on the same basis as officers holding like positions in the Army. If the chief of a bureau in the N avy Department of the grade of rear admiral of the lower nine be allowed .$G,GOO per annum — the pay of his grade increased by 10 per cent for service at sea — he would not be paid on the same basis as ofiicers holding like positions in the Army, but $600 per annum more. (90 S. and A. Memo., 817.) _ A rear admiral of the second nine when chief of bureau is entitled to the pay of a rear admiral of the eecond nine and not to the pay provided for a rear admiral of the first nine. The Navy Pay Act of May 13, 1908, divides rear admirals into two grades, at least as to pay. In this pro- vision for pay the pay of rear admiral of the first nine is as distinct from that of a rear admiral of the second nine as is the pay for captain or any other gi-ade. (98 S. and A. Memo., 1034; see also Terry v. U. S., 39 Ct. CIs., 353; Gibson v. U. S.,194U. S., 182.) The pay of chiefs of bureaus in the Navy De- partment is the grade or shore-duty pay of a rear admiral of the lower nine, $6,000 per an- num, without the increase for service on sea duty, and is not affected by the fact that the commandant of the navy yard at Mare Island and the Superintendent of the Naval Academy, although serving on shore, are allowed sea-duty pay by joint resolution of March 3, 1863 (12 Stat., 825), and act of September 28, 1850 (9 Stat., 515). (18 Comp. Dec, 15.) Assistant chiefs of bureaus in the Navy De- partment are not entitled to the 10 per cent ad- ditional of their salaries allowed for sea duty, or shore duty beyond seas, asapartof the "highest pay of their grade." (90S. and A. Memo., 826.) Under the provision in the act of June 8, 1880 (21 Stat., 164), as amended by the act of June 5, 1896 (29 Stat., 251), providing that the Judge Advocate General should receive the "highest pay of a captain in the Navy, " an officer of the Navy serving as Judge Advocate General is en- titled to the sea pay of a captain, but he is not entitled to the additional laay provided by law for officers of the Navy serving in insular posses- sions. "The evident purpose of said act of June 15, 1896, was to give claimant the sea pay of a captain instead of shore-duty pay. It con- tains no phrase looking to the future. It pro- vides the highest pay of a captain, but not the pay which a captain in the Navy mightthere- after have; no words of anticipation are in this act * * * By the acts of June 8, 1880, and June 5, 1896, the pay of the Judge Advocate General was fixed at $4,500 a year as distinctly as if they had specifically named said amount. ' (11 Comp. Dec, 11; compare Schuetze'j;. U. S., 24 Ct. CIs., 299; but see Plummer v. U. S., 224 U. S., 137, holding that the act of May 4, 1898 (30 Stat., 380), providing that acting assist- ant surgeons in the Navy shall have the "com- pensation of assistant surgeons, " did not, as held by the Comptroller of the Treasury, limit the pay of acting assistant surgeons to the amount of pay received by assistant surgeons on May 4, 1898, but entitled them to increases in pay thereafter allowed by law to assistant surgeons. The pay of the Judge Advocate General under the act of May 13, 1908, was not the subject of decision, but in practice he was allowed $5,000 per annum, being the highest shore-duty pay of a captain. See in this connection House Re- ports, volume 1, No. 285, and Senate Reports, volume 2, No. 472, Fifty-fourth Congress, first session, 1895-96, which explain that the purpose of the act of June 5, 1896, was to allow the Judge Advocate General, when an officer of the Navy, the "sea pay " of a captain, which had been de- nied under the previous laws by the Court of Claims in Lemiy v. U. S. (28 Ct. CIs., 468); see also H. Rpts., vol. 1, 52d Cong., 2d sess., 1892- 93, No. 2191; and S. Rpts., vol. 1, 52d Cong., 2d sess., 1892-93, No. 1188). 371 Sec. 421. PL 2. REVISED STATUTES. Navy Department. Prior to the naval poi-sonnel act of March 3, 1899 (30 Stat., 1004), the pay of chiefs of bu- reaus of the Navy Department was provided for by section 15G5 of tJie Revised Statutes, as fol- lows: "Thepay of chiefs of bureaus in the Navy Department shall be the highest pay of the f^rade to which they belong, but not below tliat of commodore. " The said personnel act provided for their pay as follows: " That when the office of chief of bureau is filled by an officer below the rank of n'ar-admiral, said officer shall, while holding said office, have the rank of rear-admiral and receive the same j)ay and allowances as are now allowed a briga- dier-genei-al in the Army." The law now cov- ering the pay of chiefs of bureaus is the follow- ing provision of the act of May 13, 1908: "That tlie pay and allowances of chiefs of bureaus in the Navy Department shall be the highest pay of the grade to which they belong, and not below that of rear-admiral of the lower nine. " By section 1375 of the Revised Statutes the officer detailed as assistant to the Bureau of Medicine and Surgery is entitled to the "highest shore pay of nis" gmde." The other assistants to chiefs of bureaus are each entitled to the "high- est pay of his grade "by the following acts in the different cases: March 3, 1893 (27 Stat., 717); May 4, 1898 (30 Stat., 373); March 3, 1899 (30 Stat., 1038), and March 3, 1905 (33 Stat., 1111). Section 1556 of the Revised Statutes, the pay statute for naval officers in effect before the Navy personnel act, provided three distinct rates of pay for each grade — one for sea duty, an- other for shore or other duty, and another for an officer on leave or waiting orders, and each of these rates was graduated by length of service. The act of May 13, 1908, fixes one annual pay only for each grade, with an increase of such pay, and equally permanent, for each five years' service. "When the longevity pay is earned by service it becomes a part of the permanent pay of the grade. But the 10 per cent additional allowed by the act of May 13, 1908, for sea duty and for shore duty abroad is pay for particular duty and to be given only "while so serving. " It is true that old Navy sea pay was only earned while on sea duty, but it was an established pay of the grade, just as the other two rates were. There is no longevity pay attached to the grade of rear admiral of the nine lower numbers, so that there appears to be only one rate of pay pro- vided for that grade notwithstanding the use of the words "highest pay. " It is difficult to give the word "highest" a meaning in this case, and its use in the above provision seems to create an ambiguity as to the meaning of the law. Rear admirals of the nine lower numbers receive the same advance in pay by the act of May 13, 1908, as brigadier-generals of the Army receive under the Army act of May 11, 1908, viz, $500 per annum ; so that the present pay of each is $6,000 per annum, and I am of opinion that chiefs of bureaus in the Navy Department are entitled to the same unle.ss thev are of higher grade. (14 Comp. Cec, 929.) Formerly there were thi-ee separate and dis- tinct rates of pay of each grade, sea pay, leave or waiting-orders pay, and shore-duty pay. Under the act of I^Iay 13, 1908, in lieii of the three there is only the one rate t f pay for each gi'ade, with' increases for certain purposes, the pay of the grade of rear-admiral of the lower nine being .$6,000 per annum, with a 10 per cent increase thereon for serving on sea duty or on shore duty beyond the continental Limits of the United States. No express mention ia made in the act of any increase for shore duty in the United States, and therefore the grade pay alone remains the pay for that duty, or "snore-duty pay," within the commonly ac- cepted meaning of the term. While no mean- ing can be attached to the word "highest, " yet the intent of Congress should not be defeated for the purpose of conferring upon it a meaning. (18 Comp. Dec, 15.) The term "highest pay of his grade," in the cases of assistant chiefs of bureaus, is given effect by including full longevity pay, as it is a part of the pay of the grade; but the additional pay provided by the act of May 13, 1908, for a particular duty, such as sea duty and shore duty a])road, is not a part of the yearly pay of the grade. Under the act of May 13, 1908, as interpreted by the Comptroller, assistant chiefs of bureaus receive an increase of pay of at least $500 per annum over their former pay, which is the increase generally provided by that act. (90 S. and A. Memo., 826. Note.— Pay Direc- tor C. J. Peoples, while serving as assistant to the Bureau of Supplies and Accounts, was paid the highest pay of the grade of pay director, viz, that of rear admiral of the upper half.) [Note.— The act of May 13, 1908 (35 Stat., 129), and act of March 3, 1909 (35 Stat., 754), each provided that "the estimates for the sup- port of the Navy shall hereafter show, under the head of Pay of the Na^^, the sums allowed for pay of officers belonging to the line, to the several departments of the staff, and to the retired list; the estimates to show under each head the amount allowed for pay proper, for increases due to longevity and foreign service, and for pay at sea rates la officers employed on shore * * *."] Pay not reduced by appointment as chief of bureau. — A rear admiral of the senior nine, sei^vingas chief of the Bureau of Ordnance, is entitled to the pay of a rear admiral of the senior nine, and is not restricted to " the liighest shore-duty pay and allowances of the rear admiral of the lower nine," notwithstanding the provision to that effect in the act of June 24, 1910 [since repealed]. (31 Op. Atty. Gen., 557, file 22724-16:3, approving 10 Op. Atty. Gen., 377.) VI. Retirement of Chiefs of Bureaus. Rank on retirement same as -while serving. — Section 1254, Re\'ised Statutes, relat- ing to the Army, and made applicable to the Marine Corps by section 1622, Revised Statutes, provides that ' ' officers hereafter retired from active service shall be retired upon the actual rank held by them at the date of retirement." Held that, under these statutes, a captain in the Marine Clorps, holding the office of Judge Advocate General of the Navy, with the rank of colonel while so serving, is entitled to be retired with the latter rank. While he held this office he held actual rank as a colonel of the Marine Corps, and not assimilated rank; liis rank was a fact, not a courtesv. (Remey v. U. S., 33 Ct. Cls., 218.) 372 Navy Department. PL 2. REVISED STATUTES. Sec. 421. Sectiou 1457, Revised Statutes, pro^dde8 that "officers retired from active service shall be placed on the retii'ed list of officers of the grades to which they belonged, respectively, at the time of their retirement, and continue to be borne on the Navy register. They shall be entitled to wear the uniform of their respective grades * * *." The effect of this statute upon the retirement of naval officers while 8er\T.ng as chiefs of biu*eaus has never been judicially decided. The decisions of the executive officers on the subject have been conflicting, the cases being noted below: The decision of the Court of Claims in Remey's ciise (above noted) was extended to the case of Capt. Samuel C. Lemly, U. S. Navy, who was retired under section 1457, Reused Statutes, from the office of Judge Advocate General, with the rank of captain, which he held wliile so ser\T.ng on the active list, although his rank in the line was lieutenant commander. (See file 21-2, Mar. 12, 1906.) The act authorizing the appointment of a Judge Advocate General confers actual and not assimilated rank upon the officer so appointed, and an officer of the Navy retired wliile holding the rank confeiTed by such appointment is retired on said rank. (8 Comp. Dec, 895.) The Attorney General (25 Op. Atty. Gen., 294) held that the word "grade " in section 1457 "appears to mean ranh in the line or by relation to the line — using rank and gi'ade interchange- ably, as those words sometimes are used, and not as indicating an officer's number in a particular grade. Section 1471 speaks of the headsliip of a bureau as a 'position,' section 1472 as an office, section 1473 again as a position, and the Navy Regulations, incorporating the statutes and adding to them administrative details, use both terms * * *. I think, however, that grade may include such staff offices and may mean in an untechnical sense and by a certain equity the highest post to the rank and title of which an officer has attained upon liis retirement, and that section 1457 fairly includes the office or position of Pay- master-General." (See note to section 1362, Revised Statutes, for other citations in which "grade " and " rank " have been used synony- mously.) In the opinion noted in the preceding para- graph, the Attorney General further stated: "As I understand the matter, the situation is precisely the same in the line. An officer serving as chief of a bureau, who is a rear- admiral in fact, or is in the next lower grade. \-iz. captain, if he were retired during Lis in- cumbency of the bureau headship would be retired with the rank, pay and title of rear- admiral." The above opinion of the Attorney General was followed in an opinion of the Judge Advo- cate General (file 21-2, Mai-. 12, 1906), holding that "a captain in the Navy reaching the retiring age while ser\dng as chief of bureau ^\ith the rank of rear-admiral, is retired with the latter rank." It was stated by the Judge Advocate General that the Attorney General's opinion was followed in the case of PaATiiaster General Kenny, who was "retired as a rear- admiral while a pay director in a staff cori)s of the Navy having no rank corresponding to that of rear-admiral; also in the case of the present Paymaster-General [Harris], retired as rear-admiral, liis rauk in his corps being that of pay director." The Judge Advocate General also supported his opinion by the decision of the Coint of Claims in the Remey case, above noted, and the fact that a marine officer ser\dng as Judge Advocate General was retired with the rank of colonel, and a naval officer in the same position was retired with the rank of captain, although their lineal ranks were captain in the Marine Corps and lieutenant commander in the Navv', respectively. The Judge Advocate General further supported his opinion by the act of August 5, 1882 (22 Stat., 286), providing that "hereafter there shall be no promotion or increase of pay in the retired list of the Navy hut the ranh and pay of officers on the retired list shall be the same that they are luhen such officers shall be retired." The Navy Regulations of 1905 and 1909 pro- vided that "officers retired while serving as chiefs of biu-eau or as Judge Advocate General shall retain the rank and titles held by them, respectivelv, while so serving." (Art. 24, Regs. 1909; art. 23, Regs. 1905; file 22724--7c?. May 17, 1909. There is no similar provision in the Navy Regulations of 1913.) The Attorney General's opinion, above noted, (25 Op. Atty. Gen., 294) reversed a former opin- ion of his department (17 Op. Atty. Gen., 154), which was as follows: "Where W., while hold- ing a commission as captain in the Navy, was appointed to the office of chief of the Bureau of Navigation, with the relative rank of commo- dore: Held that, in case of his retirement by reason of a disability incident to the service, or on his own application, during his incumbency of that office, and whilst he is borne on the Navy Register as a captain, he should be placed on the retired list with the rank of captain." Never- theless, in this opinion the Attorney General stated: "The interchangeability of the words rank and grade throughout the statutes leads me to the conclusion that whatever may have been their original differences in meaning, they are now to a gi-eat extent used synonymously," but his conclusion was that the word " rank " in sec- tion 1588, Re\T.sed Statutes, pro\'iding that re- tired officers shall receive 75 per cent of the pay of the "grade or rank which they held, respec- tively, at the time of their retirement," meant "grade," which was the reverse of the conclu- sion reached later (25 Op. Atty. Gen., 294) ; that the word "grade" in section 1457, Re\T.sed Stat- utes, meant "rank." The decisions of the Court of Claims and of the Comptroller of the Treasury, the opinion of the Attorney General (25 Op. Atty. Gen., 294), and the Navy Regulations (art. 24, Regs., 1909), all support the view that the chief of a bureau in the Navy Department, retired for physical disa- bility, is entitled to the rank and retired pay of a rear admiral of the lower nine. ('File 22724-7d, May 17, 1909, memo. J. A. G.) By act of May 13, 1908, Congress provided that "any officer of the Nav>^ who is now serving or shall hereafter serve as chief of a bureau in the Navy Department, and shall subsequently be retired, shall be retired with the rank, pay. and allowances authorized by law for the retiremen- of such bureau chief." At the time this legist 373 Sec. 421. PL 2. REVISED STATUTES. Navy Department. lalioii was enacted the law as construed by the Attorney General (Jo Op. Atty. den., 294), by the Navy Department (tile 21-2. Mar. 12, 1906), and by Navy regulations approved by the Presi- defit (art. 23, Regs., 1905), authorized the retire- ment of bureau chiefs \sith the rank held by them while so serving, and the contrary opinion (17 Op. Atty. Gen., 154) had been reversed. [In this connection see "Introduction," ante, VI, D, 'Aids to Interpretation of Ambiguous Statntes."] Referring to this act of May 13, 1908, the At- torney General stated : " It is obvious under the language last quoted that an officer actually re- tired from active service while still acting as chief of bureau became entitled * * * to pay during retirement of not less than three- fourths of the pay of a ' rear-admiral of the lower nine.'" (28 Op. Atty. Gen., 531.) It is the opinion of the Navy Department that the existing laws entitle a line oflicer of the Navy, on retirement, while serving as Judge Advocate General or chief of bureau, to the rank held by him while so serving, the same as a Marine otiicer retired while serving as Judge Advocate General and a staff officer retired while serving as chief of a bureau or Judge Advocate General in the Navy Depart- ment, and any officer of the Ajmy retired while serving as Judge Advocate General or chief of a bureau in the War Department re- tains on retirement the rank held by him while 80 serving. (File 22724-41, May 14, 1919.) The former opinions and decisions were re- viewed by the Attorney General, July 3, 1919, and the conclusion reached that " a line officer of the Navy, retired while serving as chief of bureau or Judge Advocate General, should be placed on the retired list wdth the rank attached Dy law to the said position of chief of bureau or Judge Advocate General." (31 Op. Atty. Gen., 505.) Rank on retirement not same as while serving.— In 27 Op. Attv. Gen., 376, the Attor- ney General disapproved the opinion expressed in 25 Op. Atty. Gen., 294 (above quoted), and reverted to tliat expressed in 17 Op. Atty. Gen, 154 (above quoted), that the word "grade," in section 1457, Revised Statutes, does not mean "rank," but requires that a captain in the Navy, serving as chief of bureau with the rank of rear admiral, be retired with the rank of his grade in the line, namely, with the rank of captain, except as specified in section 1473, Revised Statutes, quoted below. [In this opinion the Attorney General did not consider the effect of the act of May 13, 1908, as consti- tuting legislative approval of the existing con- struction of the law under which chiefs of bu- reaus were held entitled to retirement with the rank attached to the office of chief of bureau.] In 27 Op. Atty. Gen., 376, the Attorney General stated that the Court of Claims' deci- sion in Remey's case (33 Ct. Cls., 218), that a marine officer serving as Judge Advocate Gen- eral is entitled to retirement with the rank of colonel, which he held by virtue of his office as Judge Advocate General, does not apply to the retirement of an officer of the Navy serving as chief of bureau, for the reason, among others, that section 1254, which applies to the retire- ment of marine officers, uses the word "rank," while section 1457, which applies to the retire- ment of officers of the Nav>% uses the word "grade"; and that while a chief of bureau has the rank of rear admiral he does not by virtue of his office belong to the "grade" of rear admiral. In 28 Op. Atty. Gen., 529, the Attorney Gen- eral quoted approvingly from his opinion of May 26, 1909 (27 Op. Atty. Gen., 376, 379), that a chief of bureau whose actual grade is below that of rear admiral is not entitled to retire- ment with the rank of rear admiral except in the cases specified by section 1473, Revised Statutes (quoted below). The Chief of Naval Operations, by express en- actment, if retii'ed while so serving, shall have the lineal rank and retired pay to which he would be entitled if not so serving. (Act Aug. 29, 1916, 39 Stat., 558). Rank on retirement of chiefs of "staff" bureaus. — Section 1482, Revised Statutes, pro- vides that "staff officers, who have been or shall be retired for causes incident to the service before arriving at 62 years of age, shall have the same rank on the retired list as pertained to their position on the active list." [The effect of this section upon the retirement of a staff officer serving as cliief of bureau has not been decided. See, however, file 22724-4], May 14, 1919, and 31 Op. Atty. Gen., 505, noted above.] Section 1473, Re\dsed Statutes, as amended, provides that "officers who have been or who shall be retired from the position of Chiefs of the Bureau of Medicine and Surgery, of Sup- plies and Accounts, of Steam Engineering [now Engineering] or of Construction and Repair, by reason of age or length of ser\4ce, shall have the rank of commodore [now rear admiral]." Rank of commodore in certain cases. — In 5 Comp. Dec, 823, it was held by the Comp- troller of the Treasury that under section 1473, Revised Statutes, the officers therein men- tioned would retire, under the conditions spe- cified, wdth the rank of commodore, and not rear admiral; notwithstanding the fact that the grade of commodore on the active List was abol- ished by the Navy personnel act of March 3, 1899, and that chiefs of biueau now h^.ve the rank of rear admiral instead of commodore, aa was the case when section 1473 was enacted. (See also, to same effect, file 22724-16:1, Feb. 13, 1911, overruled by Attorney General, Mar. 15, 1911, file 22724-16:3; and see note to sec. 1362 R. S.) [The pay of commodore and rear admiral of the lower nine is the same, and as the Comptroller of the Treasury has Jurisdic- tion only of questions involving payments, and the case before him involved the pay of an officer retired under section 1473, Re^dsed Statutes, the question of rank to which such oflBcer was entitled was not under the juris- diction of the Comptroller to decide. The Comptroller of the Treasury, in a subsequent letter to the Secretary of the Navy, relating to a similar matter, stated: "The decision of * * * referred only to the pay of such re- tired oflScers and not to the rank upon which they should be retired, as that was a question outside of my jinisdiction and in any event did not affect the rate of pay in the particular case considered. * * * In this decision the as- sistant comptroller had in mind the question of 374 Navy Department. PL 2. REVISED STATUTES. Sec. 421. pay, which was the only question before him and the only one over which he had jurisdiction to render a binding decision. * * * The question of the rank upon which such an officer should be retired has therefore no bearing upon the rate of pay which he is to receive when so retired. The question of rank is one peculiarly witliin the pro\ince of your department to deter- mine and a proper one for submission to the Attorney General for his opinion in case of doubt." (File 4784-99, Dec. 8, 1899.)] Rank of commodore no-w rear admiral. — In the following opinions the Attorney General has indicated the view that the rank of officers retired under section 1473, Re\ised Statutes, is now rear admiral instead of commodore: 25 Op. Atty. Gen., 296; 27 Op. Atty. Gen., 337, 344; 27 Op. Attv. Gen., 376; 31 Op. Atty. Gen., 505, 518, 519. (See also file 21-2, Mar. 12, 1906.) In 27 Op. Atty. Gen., 337, 344, the Attorney General stated that under section 1473 " 'offi- cers who have been or who shall be retired fi'om the position of chiefs of the bureau of * * * Steam Engineering * * * by reason of age or length of service, shall have the relative rank of commodore,' {now the actual rank of rear-admiral * * *)." In 27 Op. Atty. Gen., 376, the Attorney Gen- eral stated that Congress has provided that officers retired from the position of Chief of the Bureau of Steam Engineering by reason of age or length of service shall have the rank of rear admiral. Had the Chief of the Bureau of Steam Engi- neering been retired on his own application, after 30 years' service, he would have been en- titled, under section 1473, Revised Statutes, to the rank of rear admiral on the retired list. (File 22724-7Z, July 13 and Dec. 9, 1909, letters from Secretary of the NaAJy to House and Sen- ate Committees on Naval Affairs.) The Navy Regulations of 1905 and 1909 pro- vided that a chief of bureau retired while so serving was entitled to the rank of rear admiral. (.\rt. 24, Regs., 1909, and art. 23, Regs., 1905. No similar pro\dsion in Regulations of 1913.) According to the department's practice, the Paymaster General of the Nav}^, if retired under section 1473, Revised Statutes, is retired with the rank of rear admiral. (See file 22724-18, Nov. 28, 1911; Bu. Nav. file 2425-61, 2108.) The Surgeon General of the Navy, Presley M. Rixey, was retired February 4, 1910, on his own application after 30 years' sei*vice, with the rank of rear admii-al. (See Navy Register, ■Jan. 1, 1915, p. 168.) The act of June 24, 1910 (36 Stat., 607) [re- pealed by the act of August 22, 1912 (37 Stat., 328)], provided that chiefs of biu-eau becoming eligible for retirement after 30 years' service "shall have, while on the active list, the rank, title and emoluments of a chief of bureau, in the same manner as is already provided by statute law for such officers iipon retirement hy reason of aye or length of service, and such officers after tliirty years' ser\dce shall be entitled to and shall receive new commissions in accordance with the rank and title hereby conferred." The piupose of the act of 1910 "quite clearly was to extend to chiefs of bureau becoming eligible for retirement the same privileges as under the prior law they could claim upon actual retirement." (28 Op. Atty. Gen., 531.) Under this act of 1910, the officers affected thereby became entitled to permanent com- missions with the rank of rear admiral (28 Op. Atty. Gen., 429); and such officers were com- missioned accordingly with the rank of rear admiral, including Rear Admiral R. F. Niohol- son. Chief of the Bureau of Na^dgation. Section 1473, Revised Statutes, does not restrict retirement with same rank as while serving to cases specified. — Section 1473, Revised Statutes, in providing that chiefs of certain bureaus shall be retired with the rank of commodore, was not intended to dis- criminate against the chiefs of the other bu- reaus, but the inference is that Congress in- tended thereby to confer upon chiefs of the so-called staff bureaus a rank on retirement wMch it thought already appertained to the chiefs of the so-called line bureaus. (31 Op. Atty. Gen., 505, 519, holding that line officers serving as chiefs of bureaus are entitled to retire with the rank of rear admiral.) Section 1473 expressly provides that the chiefs of ioMX biu-eaus shall, on retirement for age or length of service, retain the rank which they held while so serving. "Expressio unius ex- clusio alterius" — the expression of one thing excludes another. Accordingly, held that a captain in the Navy, serving as Chief of the Bureau of Na\dgation, which is not one of the bureaus mentioned in section 1473, should be retired with the rank of captain. (17 Op. Atty. Gen., 154; overruled by 31 Op. Atty. Gen., 505.) Section 1473 would have been entirely un- necessary if in the view of Congress or of the revisers of the statutes the effect of section 1457, in the event of the retirement of a chief of bu- reau, was to place him on the retired list of officers of the grade temporarily held by him during his incumbency of the office of chief of bm-eau. It was because of the expression of such intention only in the two cases mentioned, viz, first, on rethement by reason of age, and second, on retirement by length of service, "thus inferentially excluding all other cases," that Attorney General McVey reached the con- clusion expressed by him in the Whiting case that chiefs of bureaus not coming within the provisions of section 1473 are entitled to retire- ment only with the rank of theii" regular grade in the Navy — an opinion in which I am con- strained to conciu". (27 Op. Atty. Gen., 376, affirming 17 Op. Atty. Gen., 155, and disap- proving"25 Op. Atty. Gen., 294; but see 31 Op. Atty. Gen., 505, noted above.) "\\Tien, therefore, a line officer of the Navy, holding the position of Engineer in Chief, is retired from active ser\'ice by reason of physical disability and not because of age or length of service, he is to be placed on the retired list of officers of the grade to which he belonged at the time of retirement — in this case the grade of captain — and not on the retired Ust of Engineers in Chief, for such office is not a grade. (27 Op. Atty. Gen., 376.) [Following this opinion, a special act of Congress was enacted May 6, 1910 (36 Stat., 352), providing for the appointment of John K. Barton as Engineer in Chief on the retired list, with the rank of rear admiral, from December 22, 1908, the date of his original retirement, under the Attorney General's 375 Sec. 421. PL 2. REVISED STATUTES. Navy Department. opinion, with tho rank of captain. Thereafter tnia opinion was reversed by the Attorney Gen- eral, (see 31 Op. Atty. Gen., 505, noted above.)] Rank on retirement of former bureau chief who has returned to general serv- ice.— Prior to the act of May 13, 1908, tho authorities clearly supported the following pro- position: A chief of bureau appointed from the grade of captain, whose time of bureauship ex- pires, then reverts to the grade from which he was appointed, and, if afterwards retired, re- tires in tlie lower grade to which he so reverts. (File 21-2, Mar. 12, 1906.) However, by the act of May 13, 1908 (35 Stat., 128) it was provided that "any officer of the Naxy who is now serA-ing or shall hereafter sen'e as chief of a bureau in the Navy Department, and shall siihseqaently be retired, shall ])0 retired with the rank, pay, and allowances autliorized by law for the retirement of such bureau chief." In an informal opinion of the Attorney Gen- eral it w;\8 held that the above legislation of May 13, 1908, refers only "to the case of retire- ment during service as chief of bureau," and does not extend to the retirement of one who has left the office of chief of biueau and retimied to general duty in the service at large. (28 Op. Atty. Gen., 531.) This informal opinion was not rendered in any specific case, and had not the force and effect of an official opinion. (See cases noted under sec. 356, K. S., "V. Weight of Opinions. ' ') However the informal opinion of the Attorney General was followed by the Court of Claims in the case of Stokes v. United States. (54 Ct. Cls., 70.) The above provision of the act of May 13, 1908, was copied from the following clause in the Army act of February 2, 1901, section 26 (31 Stat. 755): "And any officer now holding office in any corps or department who shall hereafter serve as chief of a staff corps or department and shall subsequently be retired, shall be retired with the rank, pay, and allowances authorized by law for the retirement of such corps or depart- ment chief." (See file 22724-7to, Nov. 22, 1909). By act of June 4, 1920 (41 Stat., 762), relating to the Army, it was provided that "any officer who shall have served four years as chief of a branch, and who may subsequently be retii-ed, shall be retired with the rank, pay and allowances authorized by law for the grade held by him as such chief." No actual case has been judicially decided in the Army involving the interpretation of this legislation. For memoranda relating to the in- formal opinion of the Attorney General aliove cited, and presenting certain considerations which were not before the Attorney General at that time, see file 27231-66:3, Office of the Judge Advocate General of the Na\-y, and file 88-400, Office of the Judge Advocate General of the Army. Orders to chief of bureau to appear before retiring board. — WTiile immaterial, it seems to l)e an in-cgularity to order a cliief of biu-eau before a retiring board by his title as chief of bureau — e. g., as "engineer in chief" — instead of the title of his office in the Une, viz, "captain," for it ia by virtue of liis office of captain and not of chief of bureau that he is entitled or subject to retirement. (27 Op. Atty. Gen., 337, 343. Compare cases noted above.) Titles of chiefs of bureau after retire- ment. -1 have no doubt whatever, in view of the authorities which I have cited and the various conj^iderations affecting the subject wliich I have indicated, that when retirement occurs during service as head of one of the staff bureau.'^, tlie titles for the cliiefs of which are provided for in section 1471, the retired officer IS entitled under the law to be borne upon the Na\y Register as a retired officer under that title permanently. (25 Op. Atty. Gen., 294; alfirming 25 Op. Atty. Gen., 122; compare 27 Op. Atty. Gen., 376.) Effect of retirement upon status of chief of bureau. — Chiefs of bureaus are el- igible, after retirement, to serve out unexpired terms, particularly in view of the statute authorizing the employment of retired officers on active duty. (File 21, Nov. 2, 1902.) An officer of the Navy on the active Utit is eligible for appointment as chief of bureau although he A\all be retired about a year later; and when the date of his retirement arrives he may be ordered to continue in the performance of his duties as cMef of biu^eau during the unex- pired portion of his term. (File 21-1, Mar. 7, 1906.) At least one Engineer in Chief and two Pay- masters General, retired while chiefs of bureaus, have been ordered to active duty upon retire- ment and have continued serving as chiefs of bureau until the expiration of their respective terms. The same is true of a former Judge Advocate General. Such action is therefore in accordance with precedents. (File 21-1, Mar. 7, 1906.) The retirement of an officer of the Navy wliile holding the office of Judge Advocate General of the Navy did not vacate that office, and the incumbent continued to be entitled to the pay attached thereto, if continued on active duty as Judge Advocate General under the order of the Secretary of the Navy after his retirement. (8 Comp. Dec, 895.) The Paymaster General of the Navy having been retired under section 1444, Revised Stat- utes [age], was ordered by the Secretary of the Navy to continue his duties as Paymaster Gen- eral and Chief of the Bureau of Supplies and Accounts until further orders. Held, that he is entitled to the pay of that office until the expiration of his term of appointment, unless sooner relieved from active duty as chief of said biu"eau. (10 Comp. Dec, 56.) It was quit« properly held by the Comptroller in 8 Comp. Dec, 895, that a captain in the Navy, serving as Judge Advocate General, who after his retirement as captain was by the Sec- retary of the Navy directed to continue his du- ties as Judge Advocate General pursuant to the statute authorizing the employment of re- tired officers on active duty, was entitled to hold the rank and enjoy the pay adhering in such office so long as he continued to fill the office and perform the duties of Judge Advocate General, even though he had been retired as an officer of the line. (27 Op. Atty. Gen., 376.) The retirement of an officer while Chief of the Bureau of Steam Engineering "vacated the 376 Navy Department. PL 2. REVISED STATUTES. Sec. 422. office of Engineer in Chief of the Navy, and left his legal status that of an officer on the retired list of the Navj^ holding the rank of captain." (27 Op. Atty. Gen., 337, 344.) An officer retired for physical disabiUty while serving as chief of the Biureau of Stearn Engi- neering became incapable of performing his active shore duties as Engineer in Chief unless the Secretary of the Navy, under the statute authorizing employment of retired officers on active duty, ordered him to continue Ms duties as chief of bureau, wliich was not done. (27 Op. Atty. Gen., 376, 382.) Pay after retirement of oflS.cers serving as chiefs of bureaus. — See cases noted above under "Rank of chiefs of bureaus on retire- ment," "Rank on retirement of former biireau chief who has returned to general service," and "Effect of retirement upon status of chief of bureau." A line officer of the grade of captain, retired while holding the office of Chief of the Bureau of Navigation, is entitled to the retired pay of an officer of the rank of captain. (17 Op. Atty. Gen., 154.) Chiefs of bureaus coming within the terms of section 1473 are entitled to the retired pay of commodore if retired while holding such posi- tions, but chiefs of bureaus who do not fall with- in said section are entitled on retirement only to the retired pav of their commissioned grade. (5Comp. Dec, 823.) An officer of the Marine Corps retired while serving as Judge Advocate General of the Na\'y is entitled to the retired pay of colonel. (Re- mey i;. U. S., 33 Ct. Cls., 218.) An officer of the Navy ser\'ing as Judge Advo- cate General is retired with the rank of captain and is entitled to be paid accordingly. If con- tinued on active duty as Judge Advocate Gen- eral under the order of the Secretary of the Navy after retirement, he is entitled to receive the active-duty pay of a captain. (8 Comp. Dec, 895. Capt. Lemly,.in whose case this decision was rendered, performed other active duty under orders of the Secretary of the Navy, after expiration of his ser\-ice as Judge Advocate General, and received the active-duty pay of a captain for such service; and when not on any active duty he received the retired pay of a captain; see file 22724-7f/, May 17, 1909.) Where a line officer of the grade of captain was retired from the office of chief of bureau and was continued on active duty but not as chief of bureau, he was entitled by statute to the active- duty pay of the grade from which he was re- tired, which, in his case, was that of captain. (15 Comp. Dec, 860.) VII. Assistants to Chiefs of Bureaus. Status and powers of assistant. — Without making a question that the assignment of com- missioned officers of the Navy to act as assist- ants to chiefs of bureaus may be within the general power of the Secretary of the Navy, officers so detailed are not legally " the assistant or deputy of such chief, ' ' unless their appoint- ment is specifically authorized by statute. (19 Op. Atty. Gen., 503; affirmed 28 Op. Atty. Gen., 95. See also note to sec. 178, R. S.) The office of Surgeon General (Army) is one of the distinct or separate bureaus of the admin- istrative service of the War Department. It has been found in regard to many of these bureaus, and even to the heads of departments, that it is impossible for a single individual to perform in person all the duties imposed on him by his office. It was to relieve the over- burdened principal of some part of those duties that the office of assistant was created. If no \drtue attached to the acts of the assistant until approved by the Surgeon General, any inferior clerk would have answered the purpose as well It is not intended to deny that the Assistant Surgeon General was subordinate to the chief of his bureau, could be ordered to do or not to do particular things, and when an order made by him was disapproved it might be revoked by that officer. But imtil so revoked or disap- proved it was valid, and parties required to act under it had a right to rely on it. (Parish v. U. S., 100 U. S., 504; McCollum v. U. S., 17 Ct. Cls., 101.) In some of the executive departments the statutes provide for assistants to the heads thereof, and also assistants and deputies to the heads of some of the bureaus. The duties of these assistants are generally not specifically defined by law, but are left to the direction and regulation of superior officers. Such assistants are supposed to have the confidence of those immediately above them, and to be officially engaged in carrying out the will of their prin- cipals in the details of the work of the depart- ment or bureau in which they are employed. Wlien their acts, decisions, or directions are reduced to wiiting, signed by them in their official capacity, filed, or recorded among the archives of the aepartment, and do not appear to have been revoked, annulled, or modified by the head of the department or bureau, they must be held in the absence of fraud, mistake, or irregularity to have been done within the scope of the authority of the assistant and to be as binding on the Government as though expressly ordered by the superior. Especially is that so when copies of such written documents are sent out by the head of the department in which they are found, without objection on his part to their having been made in the due and regular course of business under his control. (McCollum V. U. S., 17 Ct. Cls., 101.) The assistant to an officer designated to per- form the latter "s duties under section 179, Revised Statutes, is quahfied to act as member of a board which the law pro\ddes shall include in its membership the officer whose duties he is temporarily performing. (20 Op. Atty. Gen. 483.) For other cases, see notes to sections 177 182, Revised Statutes. Sec. 422. [Bureaus of Yards and Docks, Equipment, Navigation, and Ord- nance.] The cliicfs of the Biu'eau of Yards and Docks, of the Bureau of Equipment and Recruiting, of the Bureau of Navigation, and of the Bureau 377 Sec. 423. Ft. 2. HE VISED STATUTES. Navy Department. ot Ortliiance, shall be appointed from the list of officers of the Navy, not below the grade of commander. — (5 July, 1862, c. 134, s. 1, v. 12, p. 510.) Bureau of Equipment and Recruiting: Was des- ignated as Bureau of Equipment in annual appropriation acta conunencing witli the fiscal year 1892; provision was made for dis- tribution of the duties, funds, and em- ployees of the Bureau of Equipment among the other biu-eaua and offices of the Navy Department by naval appropriation acts for the fiscal years 1912^ 1913, and 1914; and the Bureau of Equipment was abol- ished by act of June 30, 1914(38 Stat., 408). Bureau of Navigation: Detail of an officer of the Navy as assistant to the chief of the Bureau of Navigation was authorized by act of March 3, 1893 (27 Stat., 717). Bureau of Ordnance: Detail of a line officer of the Navy temporarily as assistant to the cliief of the Biu^eau of Ordnance was author- ized by act of May 4, 1898 (30 Stat., 373). Bureau of Yards and Docks: Chief shall be se- lected from Corps of Ci^•il Engineers and have had not less than seven years' active service. (Act June 29, 1906, 34 Stat., 564.) Detail of an officer of the Corps of Civil Engineers as assistant to the Chief of the Bureau of Yards and Docks was authorized by act of August 29, 1916 (39 Stat., 558), Line bureaus. — These four bureaus are essentially line bureaus, while those mentioned in sections 423-426, inclusive, are staff bureaus (22 Op. Atty. Gen., 47); excepting that the en- gineer ecrps (steam engineering) has now been transferred to the line by the personnel act of 1899 (25 Op.Atty. Gen., 122). [By amend- ments to sections 422 and 424, the chief of the Bureau of Yards and Docks is now appointed from staff officers (civil engineer corps), and the chief of the Bureau of Steam Engineering is now appointed from line officers.] The Bureau of Steam Engineering [now En- gineering] has now become a line bureau through the amalgamation of the Engineer Corps with the line by act of March 3, 1899 30 Stat., 1001. (File 22724-16:1, P>b. 13, 1911.) The Bureau of Yards and Docks forme a part of the Navy Department, and the Navy Department is an executive department; ac- cordingly the embossing of envelopes for the use of the Bureau of Yards and Docks is printing for an executive department and must be done at Sec. 423. [Bureau of Construction and Eepair.] The cliief of the Bureau of Construction and Repair shall be appointed from the list of officers of the Navy, not below the grade of commander, and shall be a skillful naval constructor.^ — (5 July, 1862, c. 134, s. 1, v. 12, p. 510.) the Goverrmient Printing Office. The procure- ment of such em bossing ny a private establish- ment being contrary to law there is no authority for the payment of a voucher therefor. (13 Comp. Dec, 366.) Only line officers eligible for appoint- ment under this section. — This section re- stricts the President in his choice of chiefs of the four bureaus mentioned to officers of the line not below the grade of commander; and the act of March 3, 1871, incorporated in section 421, enlarges the President's power, gi\-ing him the alternative of making the appointment "from officers ha^dng the relative rank of captain in the etaff corps of the Navy on the active list. " Ac- cordingly the appointment may be made either from line officers not below the grade of com- mander, under this section, or from staff officers of the rank of captain on the active list, under section 421. It may be said that the law as thus construed discriminates against the officers of the staff corps in the matter of a])pointment of chiefs of the four bureaus mentioned in this section by requiring them to hold a higher rank than officers of the line in order to be eligible; but the answer is that since line officers are not eligible at all to the chiefsliip of staff bineaus it is not unfair to require some extra evidence of fitness in a staff officer who is to be made head of a line bureau. (22 Op. Atty. Gen., 47. Chief of Bureau of Yards and Docks is now ap- pointed from staff officers. See law noted above.) An officer of the corps of civil engineers, not below the rank of captain, is eligible for appoint- ■ ment as Chief of the Bureau of Yards and Docks under section 421 ; but a civil engineer with the rank of commander is not an officer of the "grade " of commander, and therefore is not eli- gible for appointment as Chief of the Bureau of Yards and Docks under section 422. (22 Op. Atty. Gen., 47. But see subsequent amend- ment to this section noted above; see also note to sec. 421, "Appointment of Chiefs of Bu- reaus, " and note to sec. 423, below.) For other cases, see note to section 421, concerning appointment, etatns, rank, title, precedence, pay, retirement, etc., of chiefs of bureaus. Byactof March 3, 1893 (27 Stat., 716), it was pro- vided that "any naval constructor ha\dng the rank of captain, commander, or lieu- tenant commander shall be eligible as Chief of the Biireau of Constniction and Repair." By section 147], Revised Statutes, it was pro- vided that the Chief of the Bureau of Con- struction and Repair shall have the relative rank of commodore [now the rank of rear admiral], while holding said position, and the title of Chief Constructor. (See note to sec. 421, concerning the rank and titles of chiefs of bureaus.) By section 1473, Revised Statutes, it was pro- vided that officers retired from the position of Chief of the Bureau of Constniction and Repair, by reason of age or length of serv- ice, shall have the relative rank of commo- dore [now the rank of rear admiral — see note to section 421, ReAised Statutes, con- cerning retirement of chiefs of bureaus.] 378 Navy Department. PL 2. REVISED STATUTES. Sec. 425. Officer of the Corps of Naval Constructors may be detailed as assistant to the Chief of Bureau of Constructiou and Repair. (Act Aug. 29, 1916, 39 Stat., 558.) Tlie expression, "the list of ofla.cers of the Navy, not below the grade of com- mander," in sections 422 and 423, strictly construed, applies only to officers of the line. Naval constructors belong to the staff; never- theless, they have been treated as eligible, under section 423, for appointment as Chief of the Bureau of Construction and Repair. Thus, imderthe practical interpretation of section 423, naval constructors are treated as officers of the Navy, and their rank as the "grade" required by the section ; but it is to be observed that, in no other way could compliance be had with the explicit requirement that the officer ap- pointed Chief of the Bureau of Construction and Repair shall be "a skillful naval constructor." Faults in expression were disregarded in order to carry out the manifest intention of the law- maker. (22 Op. Atty. Gen., 47; see also note to sec. 422, R. S., and note to sec. 421, R. S., "Appointment of Chiefs of Bureaus.") The oflace of Cliief of the Bureau of Con- struction and Repair is not a "grade " in the Navy, and was not made so because the rank, title, and emoluments of the incumbent, there- tofore temporary, were made permanent by the act of June 24, 1910 [now repealed]. (28 Op. Atty. Gen., 526. But see cases noted un- der sec. 421, R. S., "Ill status of Chief of Bureaus.") For other cases, see note to section 421 Revised Statutes, concerning appointment, status, rank, title, precedence, pay, retirement, etc., of chiefs of bureaus. Sec. 424. [Bureau of Steam Engineering.] Tlie Chief of the Bureau of Steam Engineering shall be appointed from the line of officers of the Navy not below the grade of lieutenant-commander, and shall be a skillful engineer. This section was amended to read as above by act of June 7, 1900 (31 Stat._, 702). As originally enacted, this section read as fol- lows: "Sec. 424. The chief of the Bureau of Steam Engineering shall be appointed from the chief engineers of the Navy, and shall be a skillful engineer." — (5 July, 1862, c. 134, s. 1, V. 12, p. 510.) The Engineer Corps of the Navy was trans- ferred to the line by act of ]\Iarch 3, 1899 (30 Stat., 1004), and the grade of chief engineers on the active list thereupon By act of June 4, 1920, (41 Stat., 828), the Bureau of Steam Engineering was desig- nated as the "Bureau of Engineering." By section 1471, Revised Statutes, it was pro- vided that the Chief of the Bureau of Steam Engineering [now Engineering] shall have the relative rank of commodore [now the rank of rear admiral], while holding said position, and the title of engineer in chief. (See note to sec. 421, concerning the rank and titles of chiefs of bureaus.) By section 1473, Revised Statutes, it was pro- vided that officers retired from the position of Chief of the Bureau of Steam Engineer- length of service, shall have the relative rank of commodore [now the rank of rear admiral — see note to section 421, concern- ing retirement of chiefs of bureaus]. By act of March 3, 1905 (33 Stat., 1111), the detail of a line officer of the Navy was authorized as assistant to the Chief of the Bureau of Steam Engineering [now Engi- neering]. The retirement of the Chief of the Bureau of Engineering creates a vacancy in that office, unless the Secretary of the Navy order the incumbent, in accordance with law, to continue to perform the duties of said office after his retirement, wliich was not done in this case. The vacancy so created can not legally be filled by the assignment of the Chief of the Bureau of Construction and Repair to perform the duties of Chief of the Bureau of Engineering. (27 Op. Atty. Gen., 337, 344; 27 Op. Atty. Gen., 376, 382.) The Bureau of Engineering has now be- come a line bureau. (See note to sec. 422, R. S.) For other cases, see note to section 421, concerning appointment, status, rank, title, precedence, pay, retirement, etc., of chiefs of bureaus. ing, [now Engineering] by reason of age or Sec. 425. [Bureau of Supplies and Accounts.] The chief of the Bureau of Provisions and Clothing shall be appointed from the list of paymasters of the Navy of not less than ten years' standing. — (5 July, 1862, c. 134, s. 1, V. 12, p. 510.) "Bureau of Provisions and Clothing" was changed to "Bureau of Supplies and Ac- counts" by act of July 19, 1892 (27 Stat., 243, 245). Chief of the Bureau of Supplies and Accounts to have the relative rank of commodore [now the rank of rear admiral] while hold- ing said position, ard the title of paymas- ter general. (Sec. 1471, R. S. See note to sec. 421, concerning the rank and titles of chiefs of bureaus.) Retirement of Chief of the Bureau of Supplies and Accounts, by reason of age or length of service, with the relative rank of commo- dore [now the rank of rear admiral] was au- thorized by section 1473, Revised Statutes. (See note to sec. 421, concerning retire- ment of chiefs of bureaus.) 54641°— 22- -25 379 Sec. 42' PL 2. REVISED STATUTES. Navy Department. Petail of a pay oflicer of the Navy as assistant to the Chief of the Bureau of Supplies and Accounts, was authorized hy act of July 26, 1894 (28 Stat., 132 1, and the pay of the oflicer eo detailed was fixed by act of March 3. 1899 (30 Stat., 1038). Civilian assistant to Chief of the Bureau of Sup- plies and Accounts, to perform also tne duties of chief clerk, was provided for by act of February 25. 1903 (32 Stat., 890), and by appropriation acts for subsequent years. Sec. 426, [Bureau of Medicine and Surgery.] The chief of the Bureau of Mechcine and Surgery shall be appointed from the list of the surgeons of the Nav3^— (5 July, 1862, c. 134, s. 1, t. 12, p. 510.) Duties of Bureau of Supplies and Accounts: See note to section 419, Re-vised Statutes. Appointment, status, rank, title, precedence, pay, retirement, etc., of chiefs of bureaus: See note to section 421, Revised Statutes. The Avord '"paymasters" in this section is construed in practice as meaning officers of the Supply Corpp, and is not restricted to officers in the f;;rade of paymaster. (See note to sec. 1376, R. S., as to organization of the Supply Corps.) Chief of the Bureau of Medicine and Surgery to have the relative rank of commotlore [now the rank of rear admiral] while holding said position, and the title of Surtreon General. (Sec. 1471, R. S. See note to sec. 421, con- cerning the rank and titles of chiefs of bureaus.) Retirement of Chief of the Biu-eau of Medicine and Surgery, by reason of age or length of service, with the relative rank of commo- dore [now the rank of rear admiral], was au- thorized by section 1473, Revised Statutes. (See note to sec. 421 concerning retirement of chiefs of bureaus.) Detail of a medical officer as assistant to the Bu- reau of Medicine and Surgery, was author- ized by section 1375, Revised Statutes. Appointment, status, rank, title, precedence, pay, retirement, etc., of chiefs of bureaus: See note to section 421, Re\dsed Statutes. Sec. 427. [Use of engraved plates of Wilkes's Expedition.] The Joint Committee on the Library shall grant to the Department of the Nary the use of such of the engraved plates of the United States Exploring Expedition under Captain Wilkes, in charge of the committee, as may be desired for the purpose of printing a supply of charts for the use of the Department. — (26 July, 1866, Res. No. 80, v. 14, p. 366.) Historical note. — By act of May 14, 1836 (sec. 2, 5 Stat., 29), Congress authorized the President to send a survepng and exploring expedition to the Pacific Ocean and the South Seas, and made an appropriation of $150,000 for that purpose. On April 20, 1838, Lieut. Charles Wilkes was appointed to the command of the expedition, which sailed in the month of Au- gust, 1838. (See Wilkes v. Dinsman, 7 How., 91; see also, "The Wilkes Exploring Expedi- tion," U. S. Naval Institute Proceedings, vol. 40, no. 5, p. 1323.) The Wilkes Exploring Expedition ' ' was a pub specially authorized by * for purposes of commerce lie enterprise Congress * * and science, very valuable to the country', and not entirely without interest to most of the civ- ilized world." (Wilkes v. Dinsman, 7 How., 122; see also Dinsman v. Wilkes, 12 How., 389.) By act of August 26, 1842 (5 Stat., 534), Con- gress provided for publishing, imder the super- vision and direction of the Joint Committee on the Librarj^, "an account of the discoveries made by the exploring expedition, under the command of Lieut. \\'ilkes, of the United States Navy, ' ' and by act of March 3, 1843 (5 Stat. , 645), made an appropriation of $20,000 ' ' for preparing and publii^hing charts, and otherwise carrying into effect " the act of August 26, 1842. By act of March 3, 1851 (9 Stat., 599), the plates and engraAings, which were made at the expense of the United States, were to be de- livered to the Smithsonian Institution, to enable that institution to publish a new edition of Wilkes' Narrative. July 7, 1866 (Congress Letter Book, Navy Dept., vol. 14, p. 332), the Secretary of the Navy advised the chairman of the Joint Com- mittee on the Library, United States Senate, that the charts published imder the authority of the act of March 3, 1843, had been exhausted, and that the Navy Department desired to be put in possession of the plates to enable it to have additional charts printed therefrom for the use of the Na\y and the Commercial Marine, and suggesting, in case the committee should not feel authorized to transfer the plates to the Na\y Department, a joint resolution be sub- mitted to Congress authorizing such transfer to be made. As a result, the joint resolution was adopted, which was afterwards embodied in section 427, Revised Statutes. From the records of the Hydrographic Office it appears that there were originally 106 copper plates covering the above mentioned exploring expedition, which were apparently turned over to the Na\y Department in compliance with the joint resolution now embodied in section 427, Re^■ised Statutes. These copper plates were not returned to the Joint Committee on the Li- brary', but were used in the Hydrographic Office for several years. Thirty-eight of them are still in use by that office for printing charts and 27 others are stored as record plates, but have not been used for some time. Of the remaining 41, some were turned over to the Superintendent of the Coast and Geodetic Survey in 1881 as covering areas coming within the jurisdiction of that office, and the balance were scoured off and the copper plates used for other purposes. 380 Navy Department. PL 2. REVISED STATUTES. Sec. 429. So far as known, the Joint Committee on the Library has never requested the return of any of these plates, and they are regarded by the Hydrographic Office as the property of that office and^of the Coast and Geodetic Survey. (File 9386-14:18, Jan. 19, 1916.) In the Commissioners' Draft of the Revised Statutes (vol. 1, p. 214), it was stated with ref- erence to the joint resolution now embodied iii the revision as section 427 : "Very probably this provision may have become obsolete. Itstands however, in the Statutes at Large unrepealed." [However, inasmuch as it appears frona the above that certain of these plates are still in use by the Hydrographic Office, it would seem that section 427, Revised Statutes, can not be re- garded as obsolete unless it should be construed as having provided for an absolute transfer of said plates to the Navy Department. In this connection see United States Compiled Statutes 1917, in which section 427, Revised Statutes, is treated by the publishers as obsolete.] September 4, 1908 (file 15567-6), the presi- dent of the Carnegie Institute of Washington was informed by the Navy Department that "certain unpublished magnetic data obtained on the Wilkes expedition," comprising several hundred miscellaneous books and sheets, form- ing part of the archives of the Hydrographic Office, were not arranged for access to the pub- lic, and could not be spared for publication, as suggested, by the said institute ; but that ' 'later, the results obtained from them will be made generally available, if their scientific value is clear ; it is in times placed iu question by certain gaps in the continuity of observation. To fill these, much search for further material, has so far, proven unavailing." Sec. 428. [Collection of enemies' flags.] The Secretary of tlie Navy shall I'rom time to time cause to be collected and transmitted to him at the seat of Government all flags, standards, and colors taken by the Navy from the enemies of the United States.— (18 Apr., 1814, c. 78, s. 1, v. 3, p. 133.) A similar provision to this is contained in sec- tion 1554, Revised Statutes. Preservation and public display of captm-ed flags, under the direction of the President, is provided for by section 1555, Revised Statutes. Sec. 429. [Reports to be made by Secretary of the Navy.] The Secretary of the Navy shall make annual reports to Congress upon the following subjects: [See §§ 19.5, 196.] First. A statement of the appropriations of the preceding fiscal year for the Department of the Navy, showing the amount appropriated under each specific head of appropriation, the amount expended under each head, and the balance which, on the thirtieth day of June preceding such report, remained imex- pended. Such report shall be accompanied by estimates of the probable demands which may remain on each appropriation. Second. A statement of all offers for contracts for supplies and services made during the preceding year, by classes, indicating such as have been accepted. Tliird. A statement showing the amounts expended during the preceding fiscal year for wages of mechanics and laborers employed in building, repairing, or equipping vessels of the Navy, or in receiving and securing stores and ma- terials for those purposes, and for the pm^chase of material and stores for the same pm-pose; and showing the cost or estimated value of the stores on hand, under this ai)propriation, in the navy-yards, at the commencement of the next preceding liscal year; and the cost or estimated value of articles received and expended during the year; and the cost or estimated value of the articles belonging to this appropriation which may be on hand in the navy-yards at the close of the next preceding fiscal year. Fourtli. A statement of all acts done by him in making sale of any vessel or materials of the Navy; specifying all vessels and materials sold, the parties buying the same, and the amount realized therefrom, together with such other facts as may be necessary to a fidl understanding of his acts. — (1 May, 1820, c. 52, s. 2, V. 3, p. 567; 3 Mar., 1843, c. 83, v. 5, p. 617; 27 July, 1866^ c. 287, s. 3, V. 14, p. 305.) 381 Sec. 420. Pt.2. REVISED STATUTES. Navy Departnient. Ainoiulment to this section was made by the act of Juno 22, 1910 (36 SUit., 591), \yhich repealed the second clause of the section as quoted above with reference to contracts, and at the same time repealed a similar provision of section 3720, Revised Statutes. Other Reports Required to be Made. Accounts: Bureau of Supplies and Accounts shall keep money accounts of the Naval Establishment so as to show direct and in- direct charges in the cost of work and shall report same annually for the information of Congress (act Mar. 4, 19 LI, 36 Stat., 1267); shall also report annually to Secretary of the Navy all receipts and expenditures (act May 13, 1908, 35 Stat., 153). Advisory Committee for Aeronautics is required to submit annual report to Congress through the President, including itemized state- ment of expenditures. (Act Mar. 3, 1915, 38 Stat.. 930.) Buildings rented: Heads of departments are re- quired to report to Congress in annual esti- mates buildings rented for their depart- ments, and the purpose and cost thereof. (Act Mar. 3, 1883, 22 Stat., 552.) The Sec- retary of the Treasury' is required to report annually to Congress, in Book of Estimates, buildings rented by the Government in the District of Columbia, and the purpose and cost thereof. (Act July 16, 1892 (27 Stat., 199); amended by act May 1, 1913, sec. 3, 38 Stat., 3.) Claims: Secretary of the Navy is required to re- port annually to Congress for payment, through the ' Secretary of the Treasury, amounts found to be due claimants for dam- ages by collisions for which vessels of the Navy are considered responsible, where amount of claim does not exceed $500. (Act June 24, 1910, 36 Stat., 607.) Also shall report annually to Congress amount of claims adjusted by him for damage to privately owned property not occasioned by vessels of the Navy. (Act July 11, 1919, 41 Stat., 132.) Condition of business: Heads of departments are required to make annual report to Congress, in the Book of Estimates, as to the condi- tion of business in the department, and whether in arrears. (Act Alar. 2, 1895, sec. 7, 28 Stat.. 808.) Monthly reports are to be made to head of department as to condition of business in the bureaus and offices of the department at Washington (act Mar. 15, 1898. sec. 7. 30 Stat., 317); and quarterly reports are to be made to the President by the heads of departments as to the condition of the public business and whether any branch thereof is in arrears (act Mar. 15, 1898, sec. 7, 30 Stat., 317). Contingent funds: Heads of departments are re- quii-ed to make annual report to Congress of detailed expenditures from contingent funds of the department and of the bureaus and offices thereof. (Sec. 193, R. S.; act Mar. 3, 1877, 19 Stat., 306.) Disbursing officers are reqiured to make annual reports to heads of departments of disburse- ments by them, and heads of departments are required to communicate result of such reports to Congress. (Sec. 193, R. S.) Employees: Annual report by Secretary of the Navy to Congress is required, of amount ex- pended for ci^ilians employed on clerical duty, or in any other capacity than ordi- nary mechanics and workingmen, from " Pav of the Navy." and other naval appro- priations (act Jan. 30, 1885, sec. 3, 23 Stat., 295); a similar report is reqiiired to be made by the Secretary of the Navy in the annual Book of Estimates of the num- ber and compensation of persons employed from "Increase of the Navy," and other general appropriations (act Apr. 17, 1900, 31 Stat., 117); report is also to be made in the annual estimates of persons employed for technical services from appropriations, "Engineering," " Constniction and re- pair," "Ordnance and ordnance stores," and from appropriations and allotments under the Bureau of Yards and Docks (see annual legislative, executive, and judicial appropriation acts — e. g., act Mar. 3, 1917, 39 Stat., 1100, 1101). Employees at navy yards: Secretary of the Navy shall each year, in the annual esti- mates, report to Congress the number of persons employed from lump sum appro- priations for clerical, drafting, inspection, and messenger ser\dce at navy yards and stations and offices under the Navy Depart- ment, their duties, and the amount paid to each. (Act Mar. 3, 1909, 35 Stat., 755.) Employees detailed: Heads of departments are required to report to Congress, in the annual Book of Estimates, employees de- tailed to other offices, in accordance with section 166, Revised Statutes, as amended. (Act Mar. 2, 1895, sec. 7, 28 Stat., 808.) Employees inefficient: Heads of departments are required to report, in the annual Book of Estimates, number of employees in each bureau and office below a fair standard of efficiency, and the salary of each. (Act July 11, 1890, sec. 2, 26 Stat., 268.) Estimates: Extracts from annual reports of heads of departments and bureaus relating to estimates for appropriations and the necessity therefor, are to be included in the Book of Estimates by the Secretary of the Treasurj\ (Act Mar. 3, 1875, sec. 3, 18 Stat. , 370. ) Report to accompany estimates showing amount of outstanding appropria- tion, if any, which will probably be re- quired for each particular item of expendi- tm-e. (Sec. 3665, R. S.) [Compare laws cited under section 430, Revised Statutes, as to restriction upon "notes" following estimates.] Exchanges of typewriters and labor-saving de\dces in part payment for new machines shall be reported annually to Congress, with details relating thereto. (Act Mar. 4, 1915, sec. 5, 38 Stat., 1161.) Pay of naval personnel: Secretary of the Navy is required to report anniially to Congress amount of pay and allowances for all offi- cers and enlisted men. (See annual naval appropriation acts, e. g., act Mar. 3, 1915, 38 Stat., 928.) 382 Navy Department. PL 2. REVISED STATUTES. Sec. 429. Public printing: Quarterly report of work done in departmental branches of Government Printing Office is to be made to the head of each department by the person designated to approve requisitions for the department, and such reports are to be transmitted to the Public Printer for his annual report to Congress. (Act Jan. 12, 1895, sec. 31, 28 Stat., 605.) Public Printer to report an- nually to Congress the cost of operating each "departmental branch of the Govern- ment Printing Office (act Jan. 12, 1895, sec. 31, 28 Stat., 605); a detailed statement of each account with the departments for printing and binding (act Jan. 12, 1895, sec. 22, 28 Stat., 604); and number of copies of each department report and docu- ment printed ujjon requisition by the de- partment, and titles and numbers of books bound for officers (act Jan. 12, 1895, sec. 19, 28 Stat., 603.) Publications received and distributed: De- tailed report thereof is to be made annually to Congi-ess by the head of department. (Act Jan. 12, 1895, sec. 92, 28 Stat., 623.) Register of officers of the Navy: By Senate resolution of December 13, 1815 (Annals of Congress, 14 Cong., Istsess., 1815-1816, pp. 21, 22), it was ''Resolved, That the Secre- tary of War and the Secretary of the Navy be requested to furnish annually, on the first of Januarj^ each member of the Senate with a copy of the Register of the Officers of the Army and Navy of the United States." [From 1840 to 1861, inclusive, the annual Navy Register bore on its title page "Printed by order of the Secretary of the Navy, in compliance with a resolution of the Senate of the United States of December 13, 1815." A House resolution of January 23, 1812 (Annals of Congress, 12 Cong., 1st sess., pt. 1, p. 929), and another of March 3, 1813, required registers to be submitted for those years only. Provision is made by act of January 12, 1895, section 73 (28 Stat., 616), for the printing of 1,500 copies of the Navy Register for the use of the Senate and House. See file 27231-8, Feb. 7, 1911, and note to section 1457, R. S.] Repairs or changes proposed upon vessels amounting to more than $300,000 in any case : Annual report thereof is to be made to Congress by Secretary of the Navy. (Act Mar. 2. 1907, 34 Stat., 1195, as amended by act Aug. 29, 1916, 39 Stat., 605.) Annual report also to be made to Congress liy the Secretary of the Navy, in detail, of amount expended for repairs to vessels, where such amounts exceed $200,000, for any one ship in anv one fiscal year. (Act Mar. 3, 1909, 35 Stat., 769.) Sales of imserviceable vessels and materials are to 1)6 reported annually to Congress by Secretary of the Navy. (Sec. 1541, R. S.; act Aug. 5, 1882, sec. 2, 22 Stat., 296.) A detiiiled statement of the proceeds of all sales of old material, condemned stores, supplies, or other public property of any kind, shall be submitted to Congress at the beginning of each regular session, as a separate communication and not in the Book of Estimates. (Sec. 3672, R. S., amended by act Feb 27, 1877, 19 Stat., 249, and act June 25, 1910, sec. 6, 36 Stat., 773.) Heads of departments must furnish Secretary of the Treasury, within 30 days after close of each fiscal year, statement of money arising from proceeds of public property or other source, which was not paid into the General Treasury, and de- tailed expenditiu-es, if any, from such fund, which statement shall be transmitted by the Secietaiy of the Treasirry to Con- gress at beginning of each regular session. (Act June 30, 1906, sec. 5, 34 Stat., 763.) Secretary of Treasury is to report to Congress an- nually application of money appropriated for the Navy Department (sec. 260, R.S.); also, to report annually to Congress detailed receipts and expenditures in the naval service, balances on hand, and amounts lost or imaccounted for (act June 19, 1878, 20 Stat., 167); and to report annually to Congress officers who have been delinquent in rendering their accounts and officers in- debted to the United States (act May 28, 1896, sec. 4, 29 Stat., 179, amending act July 31, 1894, 28 Stat., 209). Supplies: Bureau of Supplies and Accounts is required to report annually to Congress the money value of supplies on hand, supplies purchased and expended during year, and balances remaining (act Mar. 2, 1889, 25 Stat., 817); also, to report annually to the Secretary of the Navy all receipts and ex- penditures (act May 13, 1908, 35 Stat., 153). Travel: Annual report is required to be made to Congress in detail by heads of departments ,of travel performed on official business, from ^^'ashington to points outside of Dis- trict of Columbia, by officers or employees of such departments other than special agents. Inspectors, or employees who are required to constantly travel. (Act May 22, 1908, sec. 4, 35 Stat., 244.) Useless papers: Report to Congress by head of department is required whenever useless pa- pers accumulated in files of department should be disposed of. (Act Feb. 16, 1889, 25 Stat., 672; act Mar. 2, 1895, 28 Stat., 933.) Commanders in chief of fleets are to make report to the Secretary of the Na\'y of use- less papers accumulated in files of vessels of the Navy (act Aug. 22, 1912, 37 Stat., 329); and Secretary of the Navy is required to make detailed report to Congress of useless papers destroyed at navy yards (act Mar. 3, 1915, 38 Stat.", 929). Distribution, Printing, etc., of Reports. Distribution: No report, document, or publica- tion of any kind distributed from an execu- tive department shall contain any notice that the same is sent with "the compli- ments" of an officer of the Government, or with any special notice that it is so sent, except that notice that it has been sent, with a request for an acknowledgment of its receipt, may be given. (Act Jan. 12, 1895, sec. 73, 28 Stat. 620; see also acts 383 Sec. 429. Pt. 2. REVISED STATUTES. Navy Department. Mar. 3, 1893, 27 Stat., 612; ami Aug. 5, 1892, 27 Stat., 388.) Dislriliution of publuations for any executive ilei)artmeiit, e.\(.'ei)t inap.s, weather rei)<>rt.s, weather cards, orders, iustruction.s, diroc- tioiis, notices, or circuhirs of information, shall be made by the Public Printer, in- cluding addressing, wrapi>ing, mailing, etc., in accordance with mailing lists or frankeil slij)S furnished by the dei>artment. (Act Aug. 23, 1912, sec. 8, 37 Stat., 414.) All reports or documents to be distributed for Senators, Representatives, and Dale- gates shall be folcied and distributed from the folding rooms of the Senate and House ot Representatives. (Act Jan. 12, 1895, sec. 71, 28 Stat., 612.) Ownership of pul)lications: Government puldi- cations furnished ofiicers for oflicial use shall be delivered to their successors on the ex])iration of their official terra. (Act Jan. 12, 1895, sec. 74, 28 Stat., 620.) Printing authorized: Heads of executive de- partments shall direct whether reports made to them by bureau chiefs and chiefs of divi.'^ions shall be printed or not. (Act Jan. 12, 1895, sec. 89, 28 Stat., 622.) No book or document not ha\'ing to do with the ordinary business tiansactious of the execu- tive departments shall be printed on the requisition of any executive department unless expressly authorized by Congress. (Act Mar. 3, 1905, 33 Stat., 1249.) No doc- ument or matter shail be printed except that which is authorized by law, and nec- essary to the public business; and execu- ti\'e officers before transmitting their an- nual reports shab carefully examine same and all accompanying documents and ex- clude therefrom all matter, including en- gra\'ings, maps, drawings, and illustrations, except such as they shall certify in their letters transmitting such reports are neces- sary and relate entirely to the transaction of the public business. (Act Jan. 12, 1895, sec. 94, 28 Stat., 623.) Illustrations, maps, etc., are to be excluded from annual reports except as necessary (act Aug. 30, 1890, 26 Stat., 411); appropriation for printing and binding shall not be used for any illustra- tion, engraving, or photograph in any docu- ment or report ordered printed by Congress unless the order to print expressly author- izes the same, nor in any document or report of any executive department until the head of the department shall certify in a letter transmitting such rejwrt that the illustra- tion is necessary and relates entirely to the tran-saction of public business (act Mar. 3, 1905, 33 Start;., 1213). Printing, cost of: Printing and binding of documents and reports emanating from the executive departments shall be charged in part to allotment of appropriation for print- ing and binding of the department, and in part to the allotment for printing and bind- ing for Congi-ess. (Act Mar. 30, 1906, 34 Stat., 825.) Any executive department sub- mitting reports or documents in response to inquiries from Congress shall submit there- with estimate of the probable cost of print- ing the usual number, where such reports or documents exceed 50 pages. (Act Jan. 12, 1895, sec. 2, 28 Stat., 601, as amended by Act Mar. 1, 1907, 34 Stat., 1012.) Printing, nundjer of copies: No report, publica- tion, or document shall be printed in excess of 1 ,000 of each in any one fiscal year, mth- out authorization therefor by Congress, except that of the annual report of the head of the department, without appendices, there may be printed not to exceed 5,000 co])ies bound in pamphlet form; and of the reports of chiefs of bureaus without appen- dices there may be printed not to exceed 2,500 copies bound in pamphlet form; etc. (Act Jan. 12, 1895, sec. 89, 28 Stat., 622.) Printing, by Government Printing Office: All printing, binding, and blank books for the executive depaitment of the Govern- ment shall be done at the Government Printing Office, unless otherwise pro\'ided by law. (ActJao. 12, 1895, sec. 87, 28 Stat., 622.) Printing ordered by Congress: Publications ordered printed by Congress, other than reports of committees, shall be known as Senate and House documents, and num- bered consecutively. (Res. Jan. 15, 1908, sec. 1, 35 Stat., 565.) "Usual number" of reports and documents, prescribed by statute, shall be printed when ordered by Congress and distributed as specifically provided for to libraries and other desig- nated depositories, etc. (Act Jan. 12, 1895, sec. 54, amended by act June 25, 1910, 36 Stat., 868.) Of the annual reports of the departments to Congress, there shall be printed, in addition to the "usual number," 1,000 copies for the Senate, and 2,000 for the House. (Act Jan. 12, 1895, see. 73, 28 Stat., 612, 615.) The depart- mental edition, if any, of publications originating in or prepared by an executive department, shall be printed concurrently wth the "usual number." (Res. Jan. 15, 1908, sec. 1, 35 Stat., 565.) Public docu- ments and reports may be printed for Con- gress or executive departments in two or more editions, not to exceed the total num- ber of copies authorized. (Res. Mar. 30, 1906, 34 Stat., 826.) Title of publications printed by order of Congress for distribution by the Superintendent of Documents to State and Territorial Libraries and other designated depositories shall be the title suggested by the subject of the volume. (Res. Jan. 15, 1908, see. 2, 35 Stat., 566.) Printing lequisition: No printing shall be done for the executive departments without a special requisition, .signed by the chief of the department, and filed with the Public Printer. (Act Jan. 12, 1895, sees. 89 and 93, 28 Stat., 622 and 623.) Sale authorized: Copies of reports are to be furnished by Public Printer to all appli- cants, upon payment in advance of print- ing, not to exceed 250 to any one applicant. (Act Jan. 12, 1895, sec. 42, 28 Stat., 607.) Public documents may be reprinted for sale by order of the Superintendent of Documents, approved by the department 384 Navy Department. rt.2. REVISED STATUTES. Sec. 430. from which they originated. (Res. Mar. 28, 1904, 33 Stat. 584.) Time of making annual reports: Where not oth- erwise specified, annual reports to Congress are to be made at commencement of each regular session. (Sec. 195, R. S.) Neglect or refusal of any officer to make any report within the time prescribed by law is pun- ishable by fine of not more than $1,000. (Criminal Code, act Mar. 4, 1909, sec. 101, 35 Stat., 1107.) Time of furnishing copy to printer: By section 196, Revised Statutes, it was provided that copy of annual reports must be furnished Public Printer by heads of departments on or before the third Monday of Norember and copies of documents usually accompa- nying annual reports, on or before the 1st day of November. This section has been amended by clauses in the annual appro- priation acts providing that copies of docu- ments accompanying annual reports must be furnished to Public Printer on or befoie the 15th day of October; copies of annual reports on or before November 15; and complete revised proofs of accompanying documents and annual reports on the 10th and 20th days of November, respectively. (See sundry civil acts, Aug. 1, 1914, 38 Stat., ■ 680, and July 1, 1916, sec. 3, 39 Stat., 336; see also, 30 Op. Atty. Gen., 293.) Docu- ments and reports are not to be printed until illustrations or maps designed there- for shall be ready for publication; nor unless entire copy and illustrations for the work are furnished Public Printer within one year. (Act Jan. 12, 1895, sec. 80, 28 Stat., 621.) Miscellaneous Reports. Accidents to employees: In certain cases report of accidents is to be made by heads of de- partments to Employees' Compensation Commission. (Act Sept. 7, 1916, sec. 24, 39 Stat., 747.) Appointments without advice and consent of Senate: Report to be made to Secretary of the Treasury by the President whenever he designates, authorizes, or employs any person to perform the duties of any office without the advice and consent of the Sen- ate. (Sec. 1774, R. S.) Board of Visitors to Naval Observatory is to re- port to Secretary of the Navy annually, or oftener, condition of observatory buildings and apparatus, efficiency of its scientific work, and expenditures in administration. (Act Mar. 3, 1901, 31 Stat., 1122.) Chaplains shall report annually to the Secretary of the Na\'y the official services performed _ by them. (Sec. 1398, R. S.) Chief clerks in departm ants are required to make monthly reports to their superiors of any existing defect in the arrangement or dis- patch of business. (Sec. 174, R. S.) Official Register: Secretary of the Navy is to furnish the Director of the Census full and complete list of all officers, agents, clerks, and employees under the Navy Depart- ment, including naval officers and mid- shipmen, for pulilication in Official Regis- ter of the United States, such information to be furnished on the 1st of July in each year in which a new Congress is to assem- ble. (Act Jan. 12, 1895, sec. 73, 28 Stat., 618, as amended by act June 7, 1906, 34 Stat., 219, superseding sec. 198, R. S.) Sec. 430. [Estimates for expenses.] All estimates for specific, general, and contingent expenses of tlie Department, and of the several Bureaus, shall be furnished to the Secretary of the Navy by the chiefs of the respective Bureaus. [See § 3666.]— (5 July, 1862, c. 134, s. 5, v. 12, p. 511.) Appropriations for the service of the year, which have been made by former acts, are to be stated by the Secretary of the Treas- ury in annual estimates of appropriations required for the pubUc service. (Sec. 3670, R. S.) Arrangement and order of estimates are to be same as appropriation acts for the preceding year. Any changes therein, and transfers of salaries from one office or bureau to another office or bureau, or consolidation of offices or bureaus desired by head of department, may be indicated by note in estimates. (Act June 22, 1906, sec. 4, 34 Stat., 448.) Arrangement of estimates is to be changed, under direction of the Secretary of the Treasury, before submission to Congress, when not in the form prescribed by act June 22, 1906. (Act Mar. 4, 1909, sec. 4, 35 Stat., 907.) Book of Estimates is to contain all estimates of appropriations required for the fiscal vear for^which prepared and submitted. (Act June 22, 1906, sec. 4, 34 Stat., 448.) Book of Estimates is to be prepared under the direction of the Secretary of the Treasury, through whom all annual estimates for the public service shall be submitted to Congress. (Sec. 3669, R. S.) _ Compensation of officers is to be estimated for in accordance \n.t\\ express provisions of law, and not in accordance with executive dis- tribution. (Sec. 3662, R. S.) Conjectural estimates are to be distinguished from such as are framed upon actual infor- mation and applications from disbursing officers. (Sec. 3660, R. S.) Date and section of law, and volume and page of Statutes at Large or section of the Revised Statutes by which proposed ex- penditures are authorized, are to be cited by heads of departments in submitting esti- mates to Congress. (Sec. 3660, R. _S.) Form of estimates, and time of submission to Congress, shall be as required by law, and no estimates shall be submitted in any other form or at any other time. (Act Aug. 23, 1912, sec. 9, 37 Stat., 415.) 385 Sec. 430. PL 2. REVISED STATUTES. Navy Department. General or lump-sum estimates are to be accom- fianiod in certain cases by a statement in 5ooK of Estimates showing, in parallel col- umns, number and compensation of persons intended to be employed, and other ex- penditures contemplated therefrom; and number and compensation of persons em- ployed and other expenditnres out of corresponding appropriation for preceding fiscal year. (Act Aug. 24, 1912, sec. 6, 37 Stat., 487, aa amended by act Aug. 1, 1914, sec. 10, 38 Stat., CSO.) Such information shall be submitted according to uniform and concise methods which shall be pre- scribed by the Secretary of the Trea.sur\% but ^^'ith reference to estimates for pay of mechanics and laborers there shall be sub- mitted in detail only the ratings and trades and the rates per diem paid or to be paid. (Act July 1, 1916, sec. 4, 39 Stat., 336). Na\'j' : Estimates for pay of 1 he Navy shall show pay of line, staff, and retired officers, amount of pay proper, longevity and for- eign serAdce increases, sea pay for officers on shore, total number of warrant and petty officers and seamen and their pay proper and longe\dty or service increases, and rates of pay for all petty officers and other enlisted men. (Act Mar. 3, 1909, 35 Stat., 754.) Navy: Estimates for expenditures required by the Navy Department for certain purposes must be given in detail, including trans- portation, advertising, purchase and repair of machinery, traveling expenses, funeral expenses, recruiting, apprehending de- serters, witnesses before courts-martial and coiuts of inquiry, etc. (Sec. 3666, R. S.) _ Navy pension fund: Estimates of claims and demands chargeable upon and payable out of Navy pension fund are to be submitted annuallv to Congress by Secretary of the Navy. '(Sec. 3667,_R. S.)_ New items, or material variations in usual items, are to be accompanied by explana- tions in estimates. (Sec. 3664, R. S.) Notes shall not be submitted following any esti- mate other than as provided for "general or lump sum" estimates (.see above) except such as suggest changes in form or order of arrangement of estimates and appropria- tions and reasons for such changes. (Act Aug. 24, 1912. sec. 6, 37 Stat., 487, as amended by act Aug. 1, 1914, sec. 10, 38 Stat., 680.) Official is to be designated by head of each de- partment to supervise the classification and compilation of all estimates to be submitted by such department. Said official shall have due regard for the requirements of all laws respecting preparation of estimates, including manner and time of their sub- mission to Congress througli the Secretary of the Treasury; all unnecessary words to be eliminated from all such estimates. (Act June 23, 1913, sec. 3, 38 Stat., 75.) An ' ' estimate clerk ' ' in the Navy Department is provided for in the annual legislative, executive, and judicial appropriation act. Per diem allowance.s in lieu of subsi-stence to persons engaged in field work or travel on official business may be prescribed by heads of departments, and estimates of ap- propriations from which paid shall specifi- cally state the rates of such allowances. (Act Aug. 1, 1914, sec. 13, 38 Stat., 680.) President is to recommend reduction by Con- gress in amounts estimated for, where in excess of estimated revenues, if practicable without undue injury to the public service; or otherwise he shall recommend such loans or new taxes as necessary to cover the deficiencv. (Act Mar. 4, 1909, sec. 7, 35Stat.,i027.) Printing and binding estimates are to be sub- mitted annually by head of department (sec. 3661, R. S.); printing and binding estimates are to be submitted to Congress in detail by the Public Printer, covering all work to be done under his direction (act Mar. 2, 1895, sec. 1, 28 Stat., 961); printing and binding estimates are to be submitted in regular an- nual estimates to Congress under "Printing and binding," and to include all printing and binding required by each of the execu- tive departments, their bureaus and offices, for each fiscal year, ^vith exception of en- velopes and certain articles of stationery printed in the course of manufacture (act June 30, 1906, sec. 2, 34 Stat., 762). Printing and engraving for the Ilydrographic Office of the Navy Department are to be estimated for separately and in detail, and appropriated for separately. (Act Aug. 4, 1886, 24 Stat., 255.) Public works estimates are to be accompanied by full plans and detailed estimates of the cost of the whole work. Subsequent estimates therefor shall state original estimated cost, amount already appropriated and ex- pended, amount required in excess of original estimate, and reasons for the excess. (Sec. 3663, R. S., as amended by act Feb. 27, 1877, 19 Stat., 249.) _ _ Reports to Congress of certain information are required to be made by heads of depart- ments in the Book of Estimates. — See notes to section 429, Revised Statutes. Secretary of the Treasury: All estimates of appropriations and of deficiencies in appro- priations, shall be transmitted through the Secretary of the Treasury, and in no other manner. Secretary of the Treasury shall cause same to be classified, compiled, in- dexed, and printed. (Act July 7, 1884, 23 Stat., 254.) Secretary of the Treasury: Estimates are to be furnished Secretary of the Treasury by heads of departments on or before 15th day of October of each year; in case of their failure to do so, he shall cause estimates to be pre- pared in the Treasury Department for such appropriations as in his judgment shall be requisite, which estimates shall be sub- mitted to Congress in the Book of Estimates. (Act Mar. 3, 1901, sec. 5, 31 Stat., 1009.) Sources from which estimates are derived shall be specified by heads of departments, as nearly as may be convenient, in communi- cating estimates to Congress. (Sec. 3660, R. S.) Special or additional estimates are to be submit- ted only under exceptional circumstances. 386 Navy Department. PL 2. REVISED STATUTES. Sec. 431. and shall be accompanied by full statement of their imperative necessity and reasons for omission in the annual estimates. (Act June 22, 1906, sec. 4, 34 Stat., 448.) Vehicles, passenger-carrying: Purchase and maintenance of, shall be estimated for in detail, specifying use for which intended, etc. (Act July 16, 1914, sec. 5, 38 Stat.. 508.) Appropriations only for one fiscalyear. — - The annual appropriation acts are enacted in conformity with the mandatory provisions of sections 430, 3676, and 3678, Revised Statutes. They always are for the service of the given year for which they are esti- mated and appropriated. It is undoubtedly true that in the ordinary conduct of administra- tion, materials and supplies properly pur- chased remain unconsumed and unused at the end of the fiscal year. This is recognized and has been provided for with reference to the Navfil Establishment by statute (act Mar. 2, 1889, 25 Stat., 817, 818). If the statutes providing appropriations for a current fiscal year can re- ceive the latitudinarian construction of per- mitting purchases of supplies avowedly for use not in that but in another and succeeding year, this would do away with the force of all the statutes making annual appropriations. It would utterly destroy the relation between the laws governing appropriations and expenditures. The intentional acquisition of naval supplies for consumption or use in succeeding years by purchase from appropriations for a current fiscal year is inconsistent vdXh. the provisions of the act of March 2, 1889. (28 Op. Atty. Gen., 634.) Sec. 431. [Hydrographic Ofl5ce.] There shall be a Hydrograpliic Office attached to the Bureau of Navigation in the Navy Department, for the improve- ment of the means for navigating safely the vessels of the Navy and of the mercantile marine, by providing, under the authority of the Secretary of the Navy, accurate and cheap nautical charts, sailing directions, navigators, and manuals of instructions for the use of all vessels of the United States, and for the benefit and use of navigators generally. — (21 June, 1866, c. 129, s. 1, v. 14, p. 69.) Amendment was made to this section bv act of May 4, 1898 (30 Stat., 374), which provided that the Hydrographic Office should be at- tached to and made a part of the Bureau of Equipment. By naval appropriation acts for the fiscal years 1912, 1913, and 1914, pronsions were made for the distribution of the duties, funds, and employees of the Bureau of Equipment among the other bureaus and offices of the Naw Depart- ment, and by act of June 30, 1914^(38 Stat., 408), the Bureau of Equipment was abol- ished. Pursuant to these statutes the Hy- drographic Office was again attached to the Bureau of Navigation by Navy Regulations, and has since been appropriated for under that bureau. (See, for example, act Mar. 4, 1915, 38 Stat., 1026.) Appropriations for the preparation or publica- tion of forei.^n hydi-ographic surveys shall only be applicable to their object upon ap- proval of the Secretary of the Navy after a report from three competent naval officers to the effect that the original data for pro- posed charts are such as to justify their pub- lication. (Sec. 3686, R. S., reenacted as sec. 78, act Jan. 12_, 1895, 28 Stat., 621.) International Code of Signals, sale of to the pub- lic at cost was authorized by act of March 3, 1901 (31 Stat., 1187, sundry civil act, print- ing and binding). Naval officers, not exceeding four, may be de- tailed as necessary to the Hydrographic Office by the Secretary of the Na\'y. (Act Mar. 4, 1917, 39 Stat., 1172.) The Secre- tary of the Navy is authorized to detail such naval officers as may be necessary to the Hydrographic Office" during the con- tinuance of the present war. (Act Apr. 25, 1917, 40 Stat., 38.) "The Secretary of the Navy is authorized to detail such naval officers as may be necessary to the Hydro- graphic Office. ' ' (Act July 1, 1918, 40 Stat. , 708.) Personal services or other expenditures are not to be authoriz' d under the Hydrographic Officeat Washington, D. C, except asappro- priated for under the Navy Department in the annual legislative, executive, and judi- cial appropriation act, or under appropria- tions for the public printing and binding. (See act Mar. 3, 1917, 39 Stat., 1099.) Printing of charts, maps, notices to mariners, tide tables, light lists, sailing directions, bulletins, and other special publications of the Hydrographic Office, may be authorized by the Secretary of the Navy in such edi- tions as the interests of the "Government and of the public may require. (Act Jan. 12, 1895, sec. 89, 28 Stat., 622.) Printing and engraving for the Hydrographic Office are to he estimated for separately and in detail, and appropriated for separately. (Act Aug. 4, 1886, 24 Stat., 255.) Weather Bureau shall continue fiu-nishing meteorological information to the Hydro- graphic Office for use in preparation of Pilot Charts; and said charts shall have conspicuously printed thereon: "Prepared from data furnished by the Hydrographic Office of the NaA^ Department and by the Weather Bureau of the Department of Agriculture, and publL-^^hed at the Hydro- graphic Office under the authority of the Secretary of the Navy." (Act June 17, 1910, 36 Stat., 508.) 387 Sec. 431. Pi. J. REVISED STATUTES. Navy Department. General duties of Hydrograpliic Office. — The work of the llydroj^raphic OHkt' comprises the making, revision, correction, and issue of charts and sailiufi; directions for all parts of the world, including? monthly Pilot Charts of the North Atlantic and Pacific Oceans; compila- tion, printinj,', and issue of weekly and other periodical notices to mariners; re\dsion and issue of navigation tables; supervision of ocean and lake surveys, and the direction and su- porvL^ion of branch hydropraphic offices and sales agencies, distributed among the principal sea and lake ports of the country. (File 24501- 26:1, Jan. 25, 1912.) The work of the Hydrographic Office ever since its inception has been directed to improv- ing the means for navigating safely the vessels of the Naxy and the Mercantile Marine by pro- ducing accurate and cheap nautical charts, books, numuals, and such secondary publica- tions as would be of service to navigators and the maritime world as the organic law (sees. 431-433, R. S.) requires. (File 24501-22, Dec. 29, 1910.) It is the opinion of the Na\^ Department that the work of the Hydrographic Office merits the heartiest confidence and support; also that there should be no reduction in the branch hydrographic offices, as they are important feeders or nautical information required by the main office. (File 24501-22, Dec. 29, 1910.) Pilot Charts. — The Pilot Chart grew into being as the result of the labors and research of Lieut. Maury. The Navy of the United States was the pioneer in publishing work of this kind. Neither its usefulness nor its accuracy has ever been questioned. It is kno^vn throughout the world as being published by the Hydrographic Office. (Ann. Kept, of Hydrographic Office, 1910.) Between 1844 and 1861 there were compiled and issued under the Navy Department, "Maury's Wind and Current Charts," upon which the present Pilot Charts are fotmcled. (File 24501-19, Aug. 2, 1910.) The Pilot Charts have been published since 1883 by the Hydrographic Office of the NaA'y Department imder the provisions of eections 431 and 432, Revised Statutes. (File 24501-19, Aug. 3, 1910.) These charts contain information concerning the North Atlantic, South Atlantic, North Pacific, South Pacific, and Indian Oceans. They are invaluable for the purposes of the Na\'y and almost indispensable to navigators of merchant vessels. They include the prevailing winds, as shown by averat^es collected for the past 10 years, the best sailing routes for vessels in view of these prevailing winds, meteoro- logical conditions that may be expected in the various portions of the ocean, ancl a number of other matters of great interest to the mariner. (File 24501-19, Aug. 3, 1910.) The Pilot Chart shows graphically naviga- tional features (magnetic variation, currents, sail and steam ship tracks, etc.), and meteoro- logical data. (File 24501-24, Mar. 8, 1911.) The Pilot Charts constitute an essential link between the Hydrographic Office and the ship- masters of all nations, whereby important hydrographic and navigational reports are con- sUuitly and promptly acquired for use on the other navigational charts and nautical books which the Hydrographer is charged with pre- paring and keeping corrected up to date. The JPilot Charts were designed and developed to insure the Hydrographic Office obtaining the various data shown upon the printed sheet en- titled "Utilization of Marine Data." (File 24501-24, Mar. 8, 1911.) Data furnished by Weather Bureau.— The meteorological data for the Pilot Chart have been supplied to the Hydrographic Office by the Weather Bureau since 1905. Prior to that time the meteorological data shown on Pilot Charts were obtained by the Hydro^aphic Office, but in accordance with the decision of the Interdepartmental Board in 1904 the work of collecting such data was transferred to the Weather Bureau. The data other than meteoro- logical incorporated in the Pilot Chart are fur- nished by observers in all parts of the world in return for the finished charts and requires nautical experience for its proper arrangement on the chart. (File 24501-19, Aug. 3, 1910.) Duplication of work.— In 1909 the Weather Bureau began to publish the Ocean Meteor- ological charts, containing information practi- cally the same as is furnished by the Pilot Charts of the Na\'y Department. By the act of June 17, 1910 [above cited], the Hydrographic Office has charge of the publication of Pilot Charts, making the proper acknowledgment to the Weather Bureau for the meteorological data secured. Although not definitely stated, this provision would seem to imply the neces- sary abandonment of the duplication of the work in the publication of the Ocean Meteor- ological Charts by the Weather Bureau. This, however, was not the case, the Chief of the Weather Bureau continuing, after the act men- tioned, to publish the meteorological chart and in fact to extend its operation by collecting cer- tain data also collected by the Hydrographic Office, this undoubtedly contrary to the in- tent of Congress and certainly contrary to the spirit of the above provision of law. (File 24501-19, Aug. 3, 1910.) There is no question that this work should be performed by one department alone. It is so essential to the future welfare of the Navy, and necessarily requires such technical supervision as can only be given by a trained mariner, that the Secretary of the Navy feels sure that the work should be done by the Navy Department, and that this is the view of practically all the marine associations throughout the United States. When it was rumored that Congress might possibly abolish the Pilot Charts of the Na\"y Department, that department received countless letters of protest and offers of assist- ance to retain the publication of the Pilot Charts in the Hydrographic Office. (File 24501-19, Aug. 3, 1910.) Jurisdiction, Hydrographic Office and Weather Bureau. — By agreement between the Navy Department and the Department of Agriculture, relative to the work of the Hydro- graphic Office and the Weather Bureai', it was decided : "(a) That the Weather Bureau discontinue the Ocean and Lake Meteorological Charts; 388 Navy Department. Pt.2. REVISED STATUTES. Sec. 431. "(b) That the Hydrographic Office continue the publication of the Pilot Charts; "(c) That the Weather Bureau continue the control of ocean meteorology, eo far as concerns the collection of meteorological observations and their compilation and the use of such obser- vations in research work; "(d) That the Hydrographic Office continue the distribution of the Pilot Charts at its main office and branch offices; and that it furnish all marine obser^•ers taking observations for the Weather Bureau, and all regular Weather Bu- reau coast stations, necessary copies of the issues of the several Pilot Charts. "(e) That the Weather Bureau furnish all meteorological data necessary to the preparation of the Pilot Charts, and in such forms as may be mutually agreed upon between the two offices, in accordance with existing law; "(f) That the Hydrographic Office give the Weather Bureau due credit on the Pilot Chart for the data thus published, as required bv law." (File 24501-31, Aug. 14, 1913.) Miscellaneous. — The fact that sections 431- 433, Revised Statutes, require certain publica- tions to be prepared at the Hydrographic Office in the interest of the Navy "and the Mercantile Marine," gives private citizens, having to do with shipping, interest in the proper conduct of that office. So far as the NaAy Department can learn, the Hydrographic Office merits and has received from the whole maritime community only praise for its work, which so vitally con- cerns the welfare of our fleet at sea and the safe carriage of our goods in mercantile bottoms. (File 24501-22, Dec. 29, 1910.) As to the naval service, the charts, books, and other publications of the Hydrographic Office are requii'ed by the Navy because our fleet could not safely and expeditiously na\'igate the high seas and foreign coasts without them. (File 24501-22, Dec. 29, 1910.) The fleet is dependent upon the Hydrographic Office for its charts and sailing directions. (File 24.501-23, Jan. 31, 1911). The supply of charts, sailing directions, and current nautical information is indispensable to the seagoing ships, and becomes more and more important with the great increase in the size, value, and speed of vessels in the last few years. Besides the Navy, the work of our Hydrographic Office is invaluable to the mer- chant maiine. domestic and foreign, and its charts and publications have hitherto enjoyed a world-wide reputation for being second' to none in accuracy, scope, reliability, and promptness of issue — the last item being of equal value with accuracy. (File 24501-26:1, Jan. 25, 1912.) Tlie Navy Department is endeavoring to reduce the number of foreign charts used in our ships, and the Hydrographic Office will ultimately produce all charts needed if the requisite money can be secured. This is nec- essary because m time of war the foreign supply would cease. (File 24501-23, Jan. 31, 1911.) At all times, from its inception, the Hydro- graphic Office has been in charge of and oper- ated by naval officers. This is clearly neces- sary, as the work of the office requires naval as well as scientific and nautical knowledge; and furthermore, the hydrographer and his assist- ants should not only have such knowledge, but be capable of administering the activities of the office. In addition, the Navy benefits by the experience its officers get in the Hydro- graphic Office, as their intimate association with the preparation and issue of charts, sailing directions, and navigational works fits them the better to perform their navigational duties at sea. (File 24501-16, Apr. 19, 1910.) Naval officers have the practical training essential to the superAdsion of the work of the Hydrograjihic Office, and it goes without saying that they have a greater interest in, and a larger feeling of responsibility for, the accuracy of the work than would civilians, whom it is impossi- ble to secure with the proper ability to super- vise the technical work involved. (File 24501-23, Jan. 31, 1911.) The preparation of the charts, books, and other publications of the Hydrographic Office could not be intrusted to a nonnavigational bureau, l)ut should be continued in the hands of capable and trained naval officers, familiar with the requirements of the navigator and the practical use of these publications. Such has been the custom with us, and such is the un- varjdng practice under foreign Governments, for it is well recognized that any other course might jeopardize an important element of national defense. (File 24501-22, Dec. 29, 1910.) Legislation restricting the number of naval officers who may be detailed to the Hydro- graphic Office, although contained in an annual appropriation act, is in effect perpetual and is the law until repealed, such provision not being expressly or otherwise limited in its operation to any particular period of time. (File 24501-26, July 11, 1911. But see act of July 1, 1918, 40 Stat., 708, which removes lim- itation upon number of naval officers detailed to Hydrographic Office.) See note to section 434, Revised Statutes, as to proposed consolidation of Hydrographic Office and Naval Observatory. An officer of the Navy is not entitled to the salary of a draftsman in the Hydro- graphic Office in addition to his own, though he hold both offices. The office of draftsman in the Hydrographic Office is incompatible with that of ca^et engineer [now abolished]. The Secretary of the Na\'y may detail an engineer for service in the Hydrographic Office, but the detail will not entitle the officer to additional pay. \Miere two incompatible offices are held by the same person, to which are attached differ- ent salaries, he is entitled to the larger. (Win- chell V. U. S., 28 Ct. Cls., 30. In this case the officer was erroneously discharged fi'om the Na\'y', and thereafter appointed to a ci\dl posi- tion "in the Hydrographic Office. When later restored to the Navy, he sought to recover the pay of both offices. See also 5 Comp. Dec, 88o.) The purchase of supplies for the Hydro- gi-aphic Office is governed by the laws relating to the purchase of supplies and contracts for sup- plies "^for any of the departments of the Govern- ment." (21 Op. Atty. Gen., 59.) 389 Sec. 434. PL 2. REVISED STATUTES. Navy Department. Sec. 432. [Maps, charts, etc.] The Secretary of the Navy is authorized to cause to be prepared, at the Hydrographic Ofiice attached to the Bureau of Navigation in the Navy Department, maps, charts, and nautical books relating to and required in navigation, and to publish and furnish them to navigators at the cost of printing and paper, and to purchase the plates and copyrights of such existing maps, charts, navigators, saihng directions and instructions, as he may consider necessary, and when he may deem it expedient to do so, and under such regulations and instructions as he may prescribe. — (21 June, 1866, c. 129, s. 2, v. 14, p. 69.) See note to section 431, llevised Statutes. This section was reenacted by act of January 12, 1895, section 77 (28 Stat., 621), as follows: "The Secretary of the Na\^ is authorized to cause to be prepared at the Hydro- graphic Office attached to the Bureau of Navigation, in the Navy Department, maps, charts, and nautical books relating to and required in navigation, and to pub- lish and furnish them to navigators at tlie cost of printing and paper, and to purchase the plates and copyiights of such existing maps, charts, navigators' sailing directions and instructions as he may consider neces- sary and when he may deem it expedient to do so, and under such regulations and instructions as he may prescribe." Sec. 433. [Money received from sale of maps, charts, etc.] All moneys which may be received from the sale of maps, charts, and nautical books shall be returned by the Secretary of the Navy into the Treasury of the United States, to be used in the further preparation and publication of maps, charts, navigators, sailing directions, and instructions for the use of seamen, to be sold at the rates as set forth in the preceding section. — (21 June, 1866, c. 129, s. 3, V. 14, p. 69.) See note to section 431, Revised Statutes. This section was reenacted by act of January 12, 1895, section 77 (28 Stat., 621), as follows: "All moneys which may be received from the sale of maps, charts, and nautical books shall be paid by the Secretary of the Navy into the Treasury of the United States, to be used in the further preparation and pub lication of maps, charts, navigators sailing directions, and instructions for the use of seamen, to be sold at the cost of printing and paper." It was amended by act of May 29, 1920 (41 Stat., 665), which provided that receipts from sales of publications "shall be cov- ered into the Treasury of the United States as miscellaneous receipts." Sec. 434. [Naval Observatory.] The officer of the Navy employed as super- intendent of the Naval Observatory at Washington shall be entitled to receive the shore-duty pay of his grade, and no other. — (3 Mar., 1865, c. 114, v. 13, p. 533.) American Ephemeris and Nautical Almanac: Publication of, by the Naval Observatory, is authorized by Article 1-604 (3 a). Naval Instructions, 1913. Assignment of a pro- fessor of mathematics to duty at the Naval Observatory in charge of the Nautical Al- manac is provided for by Article R-3111, Navy Regulations, 1913. (See sec. 436, R. S.) Appointment or detail to office of astronomical director, director of the Nautical Almanac, astronomer, or assistant astronomer may be made upon recommendation of the Board of Visitors to the Naval Observatory. (Act Mar. 3, 1901, 31 Stat., 1122.) Board of Visitors to the Naval Observatory is to be appointed by the President, by and with the adA-ice and consent of the Senate, for a period of three years without compensation other than actual expenses; four members to be astronomers of high professional stand- ing and two members eminent citizens of the United States. (Act Mar. 8, 1901, 31 Stat., 1122.) Library of Naval Observatory may have books for its exclusive use bound in half Turkey or material no more expensive. (Act Jan. 12, 1895, sec. 86, 28 Stat., 622.) 01)servatory Circle: No street, avenue, or pub- lic thoroughfare shall extend within the area of a circle described with a radius of 1,000 feet from the center of the building known as the clock room of the observatory. (Res., Aug. ] , 1894, 28 Stat., 588.) Printing authorized of 1,800 additional copies of the Observations of the Naval Observa- 390 Navy Department. Pt.2. REVISED STATUTES. Sec. 436. tory, of which 800 shall be for distribution by the Naval Observatory, and the re- mainder for the Senate and House; arid of the astronomical appendixes to said observations, 1,200 separate copies, and of the meteorological and magnetic ob- serA-ations, 1,000 copies, shall be printed for distribution by the Naval Observatory. (Act Jan. 12, 1895, sec. 73, 28 Stat., 613.) Professors of mathematics shall perform such duties at the Naval Observatory as may be assigned them by order of the Secretary of the Navy. (Sec. 1401, R. S.) Public Printer shall fiu-nish one bound copy of the Congressional Record gratuitously to the Naval Observatory. (Act Jan. 12,1895, sec. 73, 28 Stat., 617.) Regulations prescribing scope of astronomical and other researches of the Observatory and duties of its staff shall be prepared and sub- mitted to the Secretary of the Navy by the Board of Visitors. (Act Mar. 3, 1901, 31 Stat., 1122.) Report to the Secretary of the NaA^y shall be made at least once each year by the Board of Visitors respecting condition of build- ings, instruments, apparatus, efficiency, and expenditures of the observatory (Act Mar. 3, 1901, 31 Stat., 1122.) Scientific investigators and students of certain educational institutions shall be afforded the facilities of the Naval Observatory for research and illustration, under such re- strictions as the officers in charge may pre- scribe. (Res., Apr. 12, 1892, 27 Stat., 395.) They shall similarly be afforded facilities for study and research in the Government departments under such restrictions as heads of departments may prescribe. (Act Mar. 3, 1901, 31 Stat., 1039.) Superintendent of the Naval Observatory shall be a line officer of the Navy not below the rank of captain. (Act Mar. 3, 1901, 31 Stat., 1122.) A superintendent of the Naval Observa- tory, "who shall be either a captain, com- mander, or lieutenant in the Navy," at a salary of $3,000 per annum, was authorized by act of March 3, 1847 (9 Stat., 169), as amended by act of Aug. 3, 1848 (9 Stat., 266). This provision as to the rank of the super- intendent was repealed by act of March 3, 1865 (13 Stat., 533), which act further provided that ,'no officer of the Navy employed as super- Sec. 435. [Meridians. Repealed.] This section provided as follows: "Sec._485. The meridian of the Observatory at Washington shall be adopted and used as the American meridian for all astronomical pur- poses, and the meridian of Greenwich shall be Sec. 436. [Nautical Almanac] The Secretary of the Navy may place the supervision of the Nautical Almanac in charge of any officer or professor of mathematics in the Navy who is competent for that service. Such officer or professor, when so employed, shall be entitled to receive the shore-duty pay of his grade, and no other.— (3 Mar., 1857, c. Ill, s. 3, v. 11, p. 246.) intendent shall receive other than the shore duty pay of his grade." The superintendent should be carefully selected with reference to special fitness, and there can be no doubt that there can al- ways be found officers in the Navy competent to administer this institution, which had its beginnings through the ability and zeal of naval officers, as also its rise to high eminence. Dis- tinction in astronomy does not by any means go to show that its possessor will be a good ad- ministrator. The most eminent astronomer that France has produced was an utter failure in the administration of the National Observatory at Paris, and was succeeded by an admiral of the Navy, under whose direction it was excellently administered. (File 5331, Sept. 7, 1894.) The regular work of the Naval Observa- tory is essential to the Navy; it can be sys- tematically and successfully accomplished only under Government control; and no portion of it should be discontinued or transferred to other than the control of the Navy Department. The observations made in addition to those neces- sary for the regular work are of more interest to astronomers, do not interfere with the regular work, and should be continued. (File 15924, Apr. 3, 1903.) Both the Naval Observatory and the Hydrographic OfiB.ce are employed in supply- ing the fleet with na\'igation equipment, both are concerned in the instruction of navigators; the Hydrographic Office controls the marine survejdng parties, yet the Observatory provides and attends to the repairing of instruments for them, instructs surveying officers in the use of astronomical instruments^ and cooperates with them in the determination of longitudes. In numerous ways the two institutions have unity of interests and should harmonize and strengthen each other imder one management. (File 26509-97, Feb. 4, 1913, recommending legislation "for consolidating the activities of the Naval Observatory and Hydrographic Of- fice." See sec. 431, R. S., for law relating to Hydrographic Office.) The Naval Observatory is a naval sta- tion, and the Superintendent of the Naval Observatory is the commandant of a naval sta- tion within the meaning of the act of Janu- ary 25, 1895 (28 Stat., 639), "authorizing cer- tain officers of the Navy and Marine Corps to administer oaths, " as amended by the act of March 3, 1909 (31 Stat., 1086). (File 19037-45, May 26, 1914.) adopted for all nautical purposes." — 28 Sept., 1850, c. 80, s. 1, V. 9, p. 515. It was repealed bv act of August 22, 1912 (37 Stat., 342). 391 Sec. 436. PL 2. REVISED STATUTES. Navy Department. Assignmoiit of a profossor of matheinatii-s to duty at the >iaval Observatory in cliarge of Xho Nautiral Alinanar, is provided for by Article R-:il 1 1 . Navy Hogulations, 1913. Director of the Nautical Almanac may be rec- ommended for appointment by the Board of \'isitors to the Naval Observatory. (Act Mar. 3, 1901. 31 Stat., 1122.) Employees of Nautical Almanac Office whose ser\-ices can be spared from duty of pre- paring for publication the annual volumes of the American Ephemeris and Nautical Almanac, may be employed by said office in duty of improving the tables of the planet.s, moon, and stars, to be used in preparing for publication the annual vol- umes of the office. (Act Aug. 22, 1912, 37 Stat., 342.) Exchange of data with foreign almanac offices may be arranged for by the Secretary of the Na^^, any such arrangement to be termin- able on one year's notice; the work of the Nautical Almanac Office to be so conducted that in case of emergency the entire portion of the work intended for the use of na^'iga- tors may be computed by it, without for- eign cooperation. (Act Aug. 22, 1912, 37 Stat., 342.) Printing is authorized of 1,500 cof>ies of Ephem- eris and Nautical Almanac, in addition to the "usual number" — 500 copies to be for use of Senate and House, and 1,000 copies for distribution or sale by the Navy De- partment (act Jan. 12, 1895, sec. 73, 28 Stat., 613). "Usual number" of American Ephemeris and Nautical Almanac is not to be printed; in lieu thereof, 1,100 copies of same shall be printed and bound, uniform ^vith the editions printed for the Navy De- partment — 500 copies for Senate and House and 600 for Superintendent of Documents for distribution to State and Territorial li- braries and designated depositories (res., May 13, 1902, 32 Stat., 740); 2,500 copies of American Ephemeris and Nautical Al- manac are to be pu]:>lished — 1,500 copies for the Senate and House and 1,000 for dis- tribution or sale by the Navy Department (act July 1, 1902, 32 Stat. , 678). Secretary of the Navy is authorized to have additional copies of the Ephemeris and of the Nautical Almanacs extracted therefrom, printed for the public service and for sale to navigators and others. All moneys received from sale of the Ephemeris and of the Nautical Almanacs shall be deposited in the Treas- ury and placed to the credit of the general fund for public printing (act Jan. 12, 1895, sec. 73, 28 Stat., 613). Professor of Mathematics, corps shall cease to exist: See note to section 1399, Revised Statutes. The first statute relating to the Nautical Almanac was ihe act of March 3, 1849 (9 Stat., 375), providing that "a competent officer of the Navy, not below the grade of lieutenant, be charged with the duty of preparing the Nautical Almanac for publication." By act of August 5, 1854 (10 Stat., 583), it was provided that "any naval officer who may be charged with the preparation, superintendence, or publication of the Nautical Almanac, shall receive no compensation for such duty beyond what he would receive while on duty at sea." Further provisions on the subject were con- tained in the act of March 3, 1857, upon which the above section of the Revised Statutes is ba.«od . Nautical Almanac Office a department of the Naval Observatory. — The Regulations of the United States Naval Observatory, ap- proved by the Secretory of the Navy January 25, 1904, provide in partasfollows: "TheNaval Observatory, under the control of the Secretary of the Navy, is subject to the direct supervision of the Bureau of Equipment [now Bureau of Navigation], Navy Department, and shall be governed in accordance with the U. S. Navy Regulations relating to the general admin- istration of shore stations where applicable" (par. 1); "the observatory work shall be divided into two branches, astronomical and nautical. The first shall include * * * the depart- ment of the Nautical Almanac " (par. 3); "there shall be * * * a director of the Nautical Almanac * * *" (par. 5); "the Superin- tendent of the Naval Observatory * * * shall exercise entire control over every depart- ment of the observatory * * *" (par. 7); "he [the superintendent of the observatory] shall have charge of and be responsible for the direction, scope, character, quantity, and preparation for publication of all work which IS performed at the Naval Observatory * * *" (par. 9) ; " the director of the Nautical Almanac shall be held directly responsible to the super- intendent for the preparation and publication of the Nautical Almanac and Ephemorides for use of naval vessels, merchant vessels, and for astronomical purposes, as provided for by law and the regulations and orders of the Navy Department" (par. 17). These regulations and others in line therewith, which make the Nauti- cal Almanac Office a department of the observ- atory, and place the supervision thereof in charge of the superintendent of that institution, the department regards as within its power to prescribe under the authority conferred upon the Secretary of the Navy by sees. 419 and 436 of the Revised Statutes, relating, respectively, to the distribution of the business of the Navy Department and the superintendence of the Nautical Almanac. The fact that the Nautical Almanac Office is appropriated for separately in the annual legislative, executive, and judi- cial appropriation act does not, it is believed, constitute it a separate shore station, and its treatment as such would appear to be incom- patible with its status as fixed by the regulations above mentioned. It may be added that the department's recent order, gi^^ng the present superintendent of the observatory, as such, "charge of the supervision of the Nautical Almanac," establishes his authority in matters pertaining to that work independently of the regulations cited. (File 9449-04, Jan. 19, 1905.) The fact that the Nautical Almanac was in- tended to become an integral part of the Naval Observatory is established Ijy the regulations issued by the Secretary of the Navy, Septem- ber 20, 1894, and by those approved January 25, 1904. There is no question that in the early days of the existence of the Nautical Almanac it was recognized as quite distinct and separate 392 Navy Department. Pt. 2. REVISED STATUTES. Sec. 436. from the Naval Observatory, l)ut the removal of that office to the Observatory buildings and the issuance of regulations making it a liranch of the Naval Observ^atory soon after such removal, changed it to a department of the Naval Obser- vatory. (File 17626, and 9449-04, March 18, 1904, letter of Superintendent of the Naval Ob- servatory.) The fact that the appropriations for the Naval Observatory and the Nautical Almanac Office ha^•e continued since the amalgamation of the two departments in 1894, to be provided for separately has caused some question in dealing with other departments of the Government, in view of which the recommendation of the Superintendent of the Naval Observ^atory as to change in the appropriations to conform to the existing regulations was approved by the Sec- retary of the Navy. (File 18168-25, and 9449-04, Dec. 2, 1904; and 17279-3, May 11, 1905.) The Na\'y Department has estalslished the Nautical Almanac as a department of the Naval Obsers'atory, and appointed the Superintend- ent of the Naval Observ'atory as super\'isor of the Nautical Almanac in accordance with sec- tion 436 , Revised Statutes . There seems , there- fore, no warrant for styling the head of the de- partment of the Nautical Almanac as the "Di- rector of the Nautical Almanac." (File 17279- 3, May 11, 1905, letter of Superintendent of the Naval Obser\-atory.) The Director of the Nautical Almanac in- vited attention to the fact that the Na\'y Regis- ter of January, 1904, did not, as did those for the preceding 17 years, make mention of the Nautical Almanac Office as a separate shore sta- tion, and to the fact that his "present duty" was given in that Register as "Naval Observa- tory" instead of, asformerly, '• Director Nautical Almanac," and requested that in subsequent issues of the Navy Register the Nautical Al- manac Office be restored to its former status: Held, That the Navy Register, in the particu- lars mentioned, is not regarded as in error, and the department is therefore constrained to deny the request that in subsequent issues the changes suggested be made. (File 9449-04, and 17626. Jan. 19, 1905.) Supervision of Nautical Almanac can not be limited to line officers.— A regulation providing that "a line officer not below the rank of captain shall be assigned by the Secretary of the Navy as superintendent of the Naval Ob- servatory," and that "in his charge shall also be placed the supervision of the Na.utical Almanac, " in so far as the latter portion thereof is concerned, would be illegal, as it would place upon the_ super\dsion of the Nautical Almanac a restriction not prescribed by law, to wit, that it should be under "a line officer not below the rank of captain," whereas the law (sec. 436, R. S.) leaves the super\ision of the publication open to "a»y officer or professor of mathematics in the Navy who is competent for that service . ' ' (File 1112-04, Feb. 12, 1904; 17279-2, Feb. 13, 1904; see also note to sec. 161, R. S.) A nautical almanac is well known to be a book. It is a "nautical book" of the sort mentioned in section 432 of the Revised Stat- utes. The machinery' by which the Secretary is authorized from year to year to have this book made is to be found in section 3661 of the Revised Statutes in connection with annual re- ports by and appropriations for that officer. By this pro\'ision the Secretary is to submit to Congress an estimate ' ' for printing and binding to be executed under the direction of the Con- gressional Printer." Accordingly, held, that the printing and binding at tfie Government Printing Office of the book called "The Amer- ican Ephemeris and Nautical Almanac " for the Na\'y Department, are within the appropria- tion made for printing and binding for that department, and accordinglv are authorized b> law. (16 Op. Atty. Gen., 127.) 393 TITLE XL THE DEPARTMENT OF THE INTERIOR. Sec. 437. 441. 442. 470. Establishment of Department of the In- terior. Duties of Secretary. Duties concerning territories. Commissioner of Pensions. Sec. 471. 512. 513. 514. 515. Duties of Commissioner. Retiu"ns Office. Clerk to file returns. Indexes. Copies of returns. Sec. 437. [Establishmeiit of Departmenc of the Interior.] There shall be at the seat of Government an Executive Department to be known as the Depart- ment of the Interior, and a Secretary of the Interior, who shall be the head thereof.— (3 Mar., 1849, c. 108, s. 1, v. 9, p. 395.) Origin and growth of executive departments — see note to section 158 Revised Statutes, Sec. 441. [Duties of Secretary.] The Secretary of the Interior is charged wi th the supervision of pubhc business relating to the following subj ects ; * * * Second. The public lands, including mines. Third. The Indians. Fourth. Pensions and bounty-lands. Fifth. Patents for inventions. * * * Seventh. Education. Eighth. Government Hospital for the Insane. Ninth. Columbia Asylum for the Deaf and Dmnb. — (3 Mar., 1849, c. 108, ss. 3, 5, 6, 7, 8, 9, v. 9, p. 395; 8 July, 1870, c. 230, s. 1, v. 16, p. 198; 5 Feb., 1859, c. 22, s. 1, T. 11, p. 379; 20 July, 1868, c. 176, s. 1, v. 15, pp. 92, 106; Maguire v. Tyler, 1 Bl., 195.) Govermnent Hospital for the Insane. — The designation of this institution was changed to "Saint Elizabeths Hospital " by act of July 1, 1916 (39 Stat., 309). See sections 4838- 4843, Revised Statutes, and notes thereto. Sec. 442. [Duties concerning Territories.] The Secretary of the Interior shall hereafter exercise all the powers and perform all the duties in relation to the Territories of the United States that were, prior to March first, eighteen himdred and seventy-three, by law or by custom exercised and performed by the Secretary of State.— (1 Mar., 1873, c. 217, v. 17, p. 484.) Guam and Samoa. — On and after June 1, 1907, all official communications from and to executive officers of the Territories and terri- torial possessions, including Samoa and Guam, shall be transmitted through the Secretary of the Interior in such manner and under such regulations as he may prescribe. (Exec. 0., May 11, 1907.) It will be entirely satisfactory to the Interior Department to receive copies of the official reports relative to Guam and Samoa instead of the originals direct. (File 21393-26, June 4, 1907.) The governors of Guam and of Tutuila, Samoa, are directed to forward all reports, etc., relating to territorial matters, as distinguished from matters of purely naval administration, to the Navy Department in duplicate in order that one copy may be forwarded to the Secretary of the Interior. (File 21393-26, June 6, 1907.) 54641°— 22- -26 395 Sec. 471. PL 2. REVISED STATUTES. Interior Department. Sec. 470. [Commissioner of Pensions.] There shall be in the Department of the Interior a Commissioner of Pensions, who shall be appointed by the President, by and with the advice and consent of the Senate, and shall be en- titled to receive a salary of four thousand dollars a 3^ear. — (2 Mar., 1833, c. 54, s. 1, V. 4, pp. 619, 622; 3 Mar., 1835, c. 46, ss. 1, 2, 3, v. 4, p. 779; 3 Mar., 1837, c. 43, V. 5, p. 187; 4 Mar., 1840, c. 4, ss. 1, 2, 3, v. 5, p. 369; 4 Mar., 1840, c. 4, s. 4, V. 5, p. 370; 20 Jan., 1843, c. 4, v. 5, p. 597; 14 Jan., 1846, c. 4, s. 1, v. 9, p. 3; 19 Jan., 1849, c. 20, s. 1, v. 9, p. 341; 3 Mar., 1873, c. 226, s. 3, v. 17, p. 508.) This section has been amended with reference to the salary of the Commissioner. Sec. 471. [Duties of Commissioner.] The Commissioner of Pensions shall perform, under the direction of the Secretary of the Interior, such duties in the execution of the various pension and bounty-land laws as may be pre- scribed by the President.— (2 Mar., 1833, c. 54, s. 1, v. 4, pp. 619, 622; 3 Mar., 1835, c. 46, s. 2, v. 4, p. 779; 3 Mar., 1837, c. 43, s. 2, v. 5, p. 187; 4 Mar., 1840, c. 4, s. 2, V. 5, p. 369; 4 Mar., 1840, c. 4, s. 4, v. 5, p. 370; 20 Jan., 1843, c. 4, s. 2, V. 5, p. 597; 19 Jan., 1877, c. 27, v. 19, p. 224.) Service pensions to disabled enlisted men are to be granted under the direction of the Sec- retary of the Navy. (Sees. 4756^757, R. S.) Jurisdiction, Commissioner of Pen- sions. — Requests for information concerning pensions should be addressed to the Commis- sioner of Pensions, under whose jurisdiction lies the authority of granting pensions to claim- ants and deciding questions of law and fact relative thereto. (File 26250-709:1, Jan. 5, 1916; see also file 26510-1247.) The law (act of May 11, 1912, 37 Stat., 112) requires proof of the length of service of pen- sion claimants to be made "according to such rules and regulations as the Secretary of the Interior may provide." This language is similar to that contained in the act of August 5. 1892, under which it Avas held by the Interior Department (16 P. D., 492, 493) that evidence as to whether a person rendered the required service "must be considered and passed upon by the Commissioner of Pensions, subject only to the superAisory jurisdiction of the Secretary of the Interior;" that where the evidence con- cerning claimant's length of service is indefi- nite and contradictory, "the record is not con- clusive either as to the length or character of the emplojTuent;" and that "the fact of such Ber\dce, or emplojmient, may be proved by any competent witness, whether officer, enlisted man, or civilian." (File 26510-1214, Sept. 2. 1915.) ^ The exclusive jurisdiction of the Commis- sioner of Pensions to determine all such ques- tions, under the direction of the Secretary of the Interior, was again expressed by the Assist- ant Secretary of the Interior (18 P. D., 480) as follows: "It is the duty of the Commissioner of Pensions to jiidge and determine all applica- tions for pensions and to construe and interpret all questions which may arise as to the con- struction of the several acts of Congress relating to pensions; and said officer is the exclusive judge of the law and the facts in all cases within the scope of hia authority, subject only to the direction of the Secretary of the Interior Thus, acting under the direction of the Secre- tary of the Interior, the Commissioner of Pen- sions constitutes a special tribunal for the adju- dication of pension claims, and his judgments, awards, and decrees in such claims are final; they are in the nature of judicial decrees which necessarily conclude the rights of all persons within the scope of his authority." See also 19 P. D., 269, 272, and cases there cited. (File 26510-1214, Sept. 2, 1915.) In 19 P. D., 188, the decision of the War De- partment that the death of a soldier occurred in line of duty was rejected by the Commis- sioner of Pensions. On appeal, the action of the Commissioner of Pensions was reversed by the Assistant Secretary of the Interior, who, nevertheless, stated: "This department does not — can not, under the law — accept the con- clusion that this soldier was in line of duty when he was killed merely because the War Depart- ment so holds. It does, however, upon the facts in the case, conclude that * * * he is held for pensionable purposes to have been in line of duty when he met his death." (File 26510-1214, Sept. 2, 1915.) In answer to inquiries, the Navy^ Department should furnish the Commissioner of Pensions with all facts of record bearing upon the serv- ice of claimants, leaA-ing the determination of doubtful questions and the drawing of infer- ences from such facts to the jurisdiction of the Pension Bureau, which is claimed by the In- terior Department in the decisions above cited to be exclusive. The law, as interpreted by the Interior Department, ha^dng made it the duty of the Commissioner of Pensions and his superiors to decide all questions of Imo and fact which may be involved in pension claims, the Navy Department should not be called upon to render an "opinion " upon such questions for the information or guidance of another depart- ment of the Government which claims that its jurisdiction thereof is exclusive. (File 26510- 1214, Sept. 2, 1915.) 396 Interior Department. Pt.2. REVISED STATUTES. Sec. 512. Where the records are incomplete, the estab- lishment therefrom of a definite date when an enlisted man should be regarded as having been discharged from the Navy during the Civil War "would at best be merely a matter of conjec- ture." Whether or not such man was dis- charged, and if so, on what date, is a question of fact which may be established by competent e\'idence in any case in which it becomes neces- sary to decide such question. _ However, where a claim is filed and pending in the Bureau of Pensions, this does not present a case pending before the Navy Department^ which requires a decision of this question, but is a case requiring determination thereof by the Bureau of Pen- sions. Accordingly, held that the Navy De- partment can not with propriety render a deci- sion as to the date when said man should be regarded as having been discharged from the Navy for pension purposes, first, because the records of the Navy Department do not dis- close this fact; second, because the evidence submitted on this point is contradictory; third, because the determination of this question, upon the facts shown l^y the records of the Navy and Treasury Departments and evidence sub- mitted by the claimant, is a question which, under the law as interpreted by the Interior Department, is within the exclusive jurisdic- tion of the Commissioner of Pensions, subject only to the direction of his official superiors. (File 26510-1214, Sept. 2, 1915. In this con- nection, see War Department Circular of Nov. 2, 1901, pul)lishing clecision of the Secretary of War (Mr. Root) concerning the powers of the Secretary of War and the authority which had been attempted to be exercised by subordinate officers of other departments of reviewing and overruling the decisions of the Secretary of War upon military questions and matters aris- ing in the administration of the War Depart- ment.) The Secretary of the Navy and not the Sec- retary of the Interior has exclusive jurisdic- tion to determine whether applicants are en- titled to pensions imder sections 4756 and 4757, Revised Statutes; the Commissioner of Pensions in making payments under said sec- tions acts only in a ministerial capacity; it is immaterial whether he concurs or differs in such judgments as may be arrived at by the Secretary of the Navy .(31 Op. Atty. Gen., 127, affirmed Op. Atty. Gen., Nov. 7. 1917, file 26510-1022:11; see also 31 Op. Atty. Gen., 268, and C. M. O. 37, 1918, p. 20.) Sec. 612. [Returns Office.] The Secretary of the Interior shall from time to time provide a proper apartment, to be called the Returns Office, in which he shall cause to be filed the returns of contracts made by the Secretary of War, the Secretary of the Navy, and the Secretary of the Interior, and shall appoint a clerk of the first class to attend to the same. [See §§ 3744-3747.] — (2 June, 1862, c. 93, s. 4, v. 2, p. 412. Contracts made by or under the Secretary of the Navy shall be reduced to writing, signed by the contracting parties, and copy thereof filed, by the officer makirig and signing the contract, in the Returns Office within 30 days, together with all bids, offers, proposals and advertisements relating thereto, and affidavit of the officer making the return. (Sees. 3744-3745, R. S.) Time maybe extended to 90 days in discretion of Secretary of the Navy. (Act of June 15, 1917, 40 Stat., 198.) Copies of returns of contracts, certified and authenticated imder the seal of the Interior Department, shall be evidence in prose- cutions against officers for falsely swearing _ to returns. (Sec. 888, R. S.) Failure of any officer to make return as required is punisnaljle by fine and imprisonment. (Sec. 3746, R. S.) Secreta,ry of the Navy shall furnish printed instructions and blank forms of contracts and affidavits to officers authorized to make contracts. (Sec. 3747, R. S.) The Secretary of the Interior has no jurisdiction over the contracts entered into by the Secretary of War or the Secretary of the Navy because of the fact that returns are to be made to an office in his department. (29 Op. Atty. Gen., 293.) It is the duty of the Secretary of the Interior to call apparent violations of section 3746, Revised Statutes, to the attention of the Department of Justice in order that, if the law has been violated, appropriate criminal pro- ceedings may be instituted for its enforcement. (29 Op. Atty. Gen., 293.) The duty rests upon each head of de- partment to reduce to writing and make a proper return to the Returns Office of all con- tracts made by him referred to in section 3744, Revised Statutes. (29 Op. Atty. Gen., 293.) SuflB.ciency of return. — ^The return made by the Assistant Secretary of the Navy, stating that there were excepted therefrom "certain plans that are confidential and can not be di- vulged at this time without detriment to the public interests," is a sufficient compUance with the law. (29 Op. Atty. Gen., 293.) _ ConfLdential plans. — Section 3744, Revised Statutes, should not be construed as requiring the disclosure of plans that are confidential and can not be divulged without detriment to the public interests, notwithstanding such plans form part of the contract by express stipulation contained therein. It is manifest that if the Secretary of War and the Secretary of the Navy were required in making returns of contracts made by them for the construction of things authorized for the national defense, such as vessels of war, fortifications, armor and armament, to accompany such contracts with copies of plans and specifications, secrets per- taining to the national defense would be ex- posed to the pubUc view. (29 Op. Atty. Gen.. 293.) 397 Sec. 616. Pt.2. REVISED STATUTES. Interior Department. Sec. 613. [Clerk to file returns.] The clerk of the Returns Office shall file all returns made to the Office, so that the same may be of easy access, keeping all returns made by the same officer in the same place, and nmnbering them m the order in which they are made. — (2 June, 1862, c. 93, s. 4, v. 12, p. 412.) Sec. 514. [Indexes.] The clerk of the Returns Office shall provide and keep an index-book, with the names of the contracting parties, and the number of each contract opposite to the names; and shall submit the index-book and returns to any person desiring to inspect it. — (2 June, 1862, c. 93, s. 4, v. 12, p. 412.) Sec. 516. [Copies of returns.] The clerk of the Returns Office shall furnish copies of such returns to any person paying therefor at the rate of five cents for every one hundred words, to which copies certificates shall be appended in every case by the clerk making the same, attesting their correctness, and that each copy so certified is a full and complete copy of the return. — (2 June, 1862, c. 93, s. 4, V. 12, p. 412.) 398 TITLE XIII. THE JUDICIARY. CHAPTER THIRTEEN. HABEAS CORPUS. Sec. 751 . Courts authorized to issue writ. 752. Judges authorized to grant writ. 753. Writ in case of prisoner in jail. 754. Application for writ. 755. Allowance and direction of writ. 756. Time of return. Sec. 757. Form of return. 758. Body of party to be produced. 759. Day for hearing. 760. Denial of facts in return; amendments. 761. Summary hearing; disposition of party. Sec. 761. [Courts authorized to issue writ.] The Supreme Court and the circuit and district courts shall have power to issue writs of habeas corpus. — (24 Sept., 1789, c. 20, s. 14, v. 1, p. 81; 10 Apr., 1869, c. 22, s. 2, v. 16, p. 44; 2 Mar., 1833, c. 57, s. 7, v. 4, p. 634; 5 Feb., 1867, c. 28, s. 1, v. 14, p. 385; 29 Aug., 1842, c. 257, s. 1, v. 5, p. 539; U. S. v. Hamilton, 3 Dall., 17; Ex parte Burford, 3 Cr., 448; Ex parte Bollman, 4 Cr., 75; Ex parte Wilson, 6 Cr., 52; Ex parte Kearney , 7 Wh. , 38 ; Ex parte Watkins, 3 Pet. ,193; Ex parte Watkins, 7 Pet., 568; Ex parte Milburn, 9 Pet., 704; Holmes v. Jennison, 14 Pet., 540; Ex parte Barry, 2 How., 65; Ex parte Dorr, 3 How., 103; Barry v. Mercem, 5 How., 103; In re Metzger, 5 How., 176; In re Kaine, 14 How., 103; Ex parte Wells, 18 How., 307; Ex parte MiUigan, 4 Wall., 2; Ex parte McCardle, 6 Wall., 318; Ex parte McCardle, 7 Wall., 506; Ex parte Yerger, 8 Wall., 85; Ex parte Lange, 18 Wall., 163; In re Heinrich, 5 Blatch., 414; Ex parte Keeler, Hemps., 306; U. S. v. Williamson, 3 Am. Law Rep., 729; Bennet v. Bennet, I Deady, 299; Ex parte Evarts, 7 Am. Law Rep., 79; Norris v. Newton, 5 McLean, 22; U. S. v. Rector, 5 McLean, 174; Veremaitre's Case, 13 Law Rep., 608; Ex parte Sifford, 5 Am. Law Rep., 659; Ex parte McCan, 14 Am. Law Rep., 158; U. vS. v. French, 1 Galhs., 1; Ex parte Cheeney, 5 Law Rep., 19; Ex parte Des Roches, 1 McAUis., 68; Ex parte Pleasants, 4 Cr. C. C, 314; Ex parte Turner, 6 Int. Rev. Rec, 147; Ex parte Jenkins, 2 Wall., jr., 521; Ex parte Robinson, 6 McLean, 355; Ex parte Smith, 3 McLean, 121; Meade's Case, 1 Brock., 324; U. S. v. Anderson, Cooke, 143; Fisk v. Union Pacific Railway, 10 Blatch., 518; In re Joseph Stupp, 11 Blatch., 124; In re MacDonneU II Blatch., 79, 170; In re Thomas, 12 Blatch., 370; In re Giacamo, 12 Blatch., 391 ; In re Joseph Stupp, 12 Blatch., 501; In re W. B. Bird, 2 Saw., 33; In re Bogart, 2 Saw., 396.) Circuit courts were abolished and their powers and duties transferred to the district courts by the Judicial Code, act of March 3, 1911, sections 289-291 (36 Stat., 1167). Due process of law denied accused, habeas corpus proceedings as remedy — see note to Constitution, fifth amendment, under "VI. Remedy when Due Process Denied." 399 Sec. 752. Pt.2. REVISED STATUTES. The Judiciary. Power of Federal courts to order release of per- son held l)y State authorities— see note to section 753, RcvumhI Statutes, and to Con- stitution, Artirle I, section 8, clause 1:5. under ■III. .lurisdiction of Civil Authori- ties." Power to review proceedings of courts-martiul by hal)eas corpus — see note to .section 75:5 Revised Statutes, and to Constitution, Article I, section 8, clause 14, under "III. Finality of court-martial proceedingp." State courts without jurisntences of co\irtvS-martial, when affirmed l)y the mili- tary tril)unal of last resort, cannot be revised by the civil courts s;ive only when void because of an absolute want of power, and not merely voidable because of the defective exercise of power possessed." (Carter v. McClaughry, 183U. S.,401.) "Undoubtedly errors are committed liy courts-martial which a civil tribunal would regard as sulficient grounds for a reversal of their judgments if it were sitting as an appel- late court. But there is always this radical difference between an appellate court sitting for the correction of errors and a ci\'il court into which the record of a court-martial is collateral — in the former there is not a failure of justice; the appellate court may reverse a judgment or prescribe another or award a new trial: in the latter the court miist either give full effect to the sentence or pronounce it whollv void." (Swaim v. U. S., 28 Ct. Cls., 217; affirmed 165 U. S., 563.) "Courts-martial are lawful tribunals, with authority to finally determine any case over which they have jurisdiction, and their pro- ceedings, when confirmed as pro\'ided, are not open to re^•iew by the civil tribunals, except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject matter, and whether, though ha^•ing such jurisdiction, it had exceeded its powers in the sentence pronoimced." (Carter V. Roberts, 177 U. S., 496; Ex parte Mason, 105 U. S., 697; Johnson v. Sayre, 158 U. S., 109.) "With the sentences of courts-martial which have been convened regularly, and have pro- ceeded legally, and by which punishments are directed, not forbidden by law, or which are according to the laws and customs of the sea, ci\^l courts have nothing to do, nor are they in any way alterable by them. If it were other- wise, the civil courts would virtually admin- ister the rules and articles of war, irrespective of tho.'^e to whom that duty and obligation has been confided by the laws of the United States, from who.se decisions no appeal or jurisdiction of any kind has been given to the civil magis- trate or ciN-il court." (Dynes v. Hoover, 20 IIow., 55, 82.) SufSciency of charges and specifications can not be reviewed. — "^^^lere a charge against a person tried by a military court is within the court's jurisdiction, and is author- ized by the Army or Navy Regulations, the manner of setting out the offense is a matter of pleading, rather than jurisdiction, the suffi- ciency of which is for the exclusive determina- tion of the court-martial." (Ex parte Dickey, 204 Fed. Rep., 322.) In the case of Carter v. McClaughry (183 itended in habeas U. S., 355, 400), it was contended corpus proceedings that the offense of embez- zlement l)y an oliicer of the Army was errone- ously charged as a violation of article 02 of the Articles of War (sec. 1342, R. 8.), which pro- vides for the punishment of offenses "to the prejudice of good order and military disci- pline." In overruling this contention it was stated by the Su])r(Mne Court: "We should suppose that embezzlement would be detrimental to the service within the intent and meaning of the article, but it is enough that it was peculiarly for the court- martial to determine whether the crime charged was 'to the prejudice of good order and military discipline.' (Swaim v. United States, 165 U. S., 553; Smith v. Wliitney, 116 U. S., 178; United States v. Fletcher, 148 U. S., 84.) In Swaim v. United States, which involved a sentence under the sixty-second Article of War, Mr. Justice Shiras, delivering the opinion, said: 'But, as the authorities heretofore cited show, this is the very matter that falls within the province of courts-martial, and in respect of which their conclusions cannot be con- trolled or reviewed by the civil courts. As was said in Smith v. Whitney, 116 U. S., 178, "of questions not depending upon the construction of the statutes, but upon unwritten military law or usage, within the jurisdiction of courts- martial, military or naval officers, from their training and experience in the ser-\dce, are more competent judges than the courts of com- mon law . . . Under every system of mili- tary law for the goA-ernment of either land or naval forces, the jurisdiction of courts-martial extends to the trial and punishment of acts of military or naval officers which tend to bring disgrace and reproach upon the ser^dce of which they are members, whether those acts are done in the performance of military duties, or in a civil position, or in a social relation, or in private business." '" Sentence final when confirmed by the proper military authority. — In cases which do not extend to the loss of life, or to the dis- missal of a commissioned or warrant officer, the Secretary of the Navy is "the final reviewing authority provided by law to act upon records of courts-martial." (Ex parte Dickev, 204 Fed. Rep., 322, 326.) \^^lere the court-martial is ordered by the Secretary of the Navy, its sentence can not be carried into effect until confirmed by him (Dynes v. Hoover, 20 How., 81); where ordered by an officer of the Navy vested with such authority, its sentence may be carried into execution on confirmation by such officer (sec. 1624, R. S., art. 53). W^hc-ve the sentence extends to loss of life, or to the dis- missal of a commissioned or warrant officer, it can not be carried into execution until con- firmed by the President. (Sec. 1624. R. S., art. 53.) In any of these cases, where the sentence has been so confirmed by the proper reviewing officer, "it becomes final, and must be executed, unless the President pardons the offender. It is in the nature of an appeal to the officer ordering the court, who is made by law the arbiter of the legality and propriety of the court's sentence, ^^^len confirmed, it is altogether beyond the jurisdiction or inquiry of any civil tribunal whatever, unless it shall be in a case in which the court had not jurisdic- 402 The Judiciary. Pt.2. REVISED STATUTES. Sec. 753. tion over the subject matter or charge, or one in which, having jurisdiction over the subject matter, it has failed to observe the rules pre- scribed by the statute for its exercise." (Dynes r. Hoover, 20 How., 81.) '"'^lien affirmed by the military tribunal of last resort," the sentences of courts-martial can not be revised by the civil courts, "save only when void because of an absolute want of power." (Carter r. McClaughry, 183 U. S., 380.) The judgments of a court-martial when ap- proved as required, rest on the same basis and are surrounded by the same considerations which give conclusiveness to the judgments of other legal tribunals. (Ex parte Reed, 100 U. S., 23.) ^^■here the sentence of a court-martial has been approved by the Secretary of the Navy, in a case not extending to loss of life or dis- missal of a commissioned or wan-ant officer, it can not be revised by the civil coiuts on the ground that alleged errors of law were com- mitted by the court-martial, or that the prisoner was harshly dealt -nith and a sentence of undue severitv was imposed. (Ex parte Dickey, 204 Fed. 'Rep., 322.) Excessive sentence not void. — "Under a writ of habeas corpus, the inquiry is not ad- » dressed to errors, but to the question whether the proceedings and judgment are nullities; and unless it appears that the judgment or sentence under which the prisoner is con- fined is void, he is not entitled to his dis- charge." "NMiere a court "has juridsiction of the person and the offense, the imposition of a sentence in excess of what the law permits, does not render the legal or authorized portion of the sentence void, but only leaves such part of it as mav be in exce.ss, open to question and attack." (U. S. r. Pridgeon. 153 U. S., 48; see also file 26287-1543;'' and G. C. M. Rec. No. 23271.) The prisoner "cannot be discharged on habeas corpus until he has performed so much of the judgment, or served out so much of the sentence as it was within the power of the court to impose." (In re Swan, 150 U. S., 637, 653; U. S. v. Pridgeon, 153 U. S., 48.) Discharge not required by subsequent change in party's status. — An officer con- A-icted by court-martial and sentenced to dis- missal and imprisonment, which sentence is duly approved by the President, can not be released from custody on habeas corpus on the ground that upon execution of the sentence of dismissal he ceased to be amenable to military jurisdiction and could not be held to serve his period of imprisonment. ' ' Wliere the jurisdic- tion of the military court has attached in respect of an officer of the Army, this includes not only the power to hear and determine the case, but the power to execute and enforce the sen- tence." (Carter v. McClaughry, 183 U, S., 365.) Where jurisdiction has attached, it can not be divested by mere subsequent change of status. (Carter r. McClaughrv, 183 U. S.', 383, citing Barrett r. Hopkins, 7" Fed. Rep., 312; Coleman v. Tennessee, 97 U. S., 509; see al.-^o file 26251-5447, Dec. 8, 1911.) II. Persons in Custody for Act Done in Pursuance of a Law of the United States. Military guard charged -with man- slaughter. — There is no question that an act done by a soldier in the performance of his duty in the military service of the United States, is done in pursuance of a law of the United States, and so not within the jurisdiction of a State court to try. Accordingly, where a soldier on guard duty shot at an escaping prisoner, as required by the manual of guard duty, and killed a young woman pedestrian, there being no claim that the killing was intentional or that the guard acted maliciously or wantonly or otherwise than in good faith, held that the guard in shooting was acting in the supposed performance of his duty as a soldier, and was not subject to arrest and trial by the State authorities for man- slaughter, even though it might have been more prudent for him to have exercised still greater care; and accordingly, the judge of a district court of the United States has authority under sections 752, 753, and 761 Revised Stat- utes, to inquire into the facts of the case and direct his release from the custody of the State authorities. (U. S. v. Lipsett, 156 Fed. Rep., 65: see also In re Fair, 100 Fed. Rep., 149.) For other cases, see note to Constitution, Article I, section 8, clause 13, under "III. Jurisdiction of Civil Authorities." III. Persons in Custody in Violation of the Constitution of the United States. Imprisonment without due process of law. — "It is open to the courts of the United States, upon an application for a writ of habeas corpus, to look beyond forms and inquire into the very substance of the matter, to the extent of deciding whether the prisoner has been de- prived of his liberty without due process of law, and for this purpose to inquire into jurisdic- tional facts, whether they appear upon the record or not." (Frank v. Mangum. 237 U. S., 309.) One committed for refusing to incrimi- nate himself, in the exercise of his right under the Constitution, should be released on habeas corpus. (Foot V. Buchanan, 113 Fed. Rep., 156.) For other cases see note to Constitution, fifth amendment. lY. Bringing Prisoner into Court to Testify. Naval prisoners as witnesses or parties in civil courts. — "If the Federal or State authorities desire the attendance of a naval prisoner as a witness in a criminal case pending in a civil court, upon the submission of such a request to the Secretary of the Navy authority will be given in a proper case for the production of the man in court without resort being had to a writ of habeas corpus ad testificandum." (G. O. No. 121, Navy Dept., Sept. 17, 1914, par. 16, citing file 26251-8684:2, June 10, 1914; 26276-93, May 29, 1914; 26276-40, June 10, 1912; 26276-33, June 5, 1911; 26276-17, Nov. 10, 1909; etc.) 403 Sec. 765. Pt.2. REVISED STATUTES. The Judiciary. However, the Navy Department "will not but the department will allow the deposition authorize the attendance of a naval prisoner in a of such naval prisoner to be taken in the case." Federal or State court, either a.s a party or as a (G. O. No. 121, Navy Dept., Sept. 17, 1914, par. witness in private litiixaiion pendiiii,' before Ki, citing file 20251-4913:1, Oct. 12, 1911; such court, as in such ca.-^es the court may grant 2G276-3G, Dec. 9, 1911.) a postponement or a continuance of the trial: Sec. 754. [Application for writ.] Ai)pliciiti()n for writ of habeas corpus shall bo made to the court, or justice, or judge authorized to issue the same, by complaint in \vriting, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in wliose custody he is detained, and by virtue of what claim or authority, if kno^^^l. The facts set forth in the complaint shall be verified by the oath of the person making the apphcation.— (5 Feb., 1867, c. 28, s. 1, v. 14, p. 385.) Averments of conclusions of law, inade- quate. — "If the detention is claimed to be un- lawful by reason of the invalidity of the process or proceedings under which the party is held in custody, copies of such process or proceedings must be annexed to or the essential parts thereof set out in the petition, and mere aver- ments of conclusions of law are necessarily inadequate." (Creamer v. Washington, 168 U. S., 128. See also ^^'hitten v. Tomlinson, IGO U. S., 231: Kohl r. Lehlback, 160 U. S., 293; Cuddy, Petitioner, 131, U. S., 280; An- dersen V. Treat, 172 U. S., 24.) Where a petition for habeas corpus alleges that the petitioner is the father of the person whose release is sought, and that such person, being between the ages of 18 and 21 years, entered into the United States Navy without the parent's consent, and is himself desirous of being released therefrom; and that, under the statutes of the United States in such case made and provided, the enlistment of such person was illegal and invalid: Held, That no issue as to the intoxication of the recruit at the time of enlistment is presented, especially in view of the fact that the Revised Statutes, section 1624, article 19, requires the dishonor- able dismissal of an officer who knowingly enlists an intoxicated person. Held, also, That no issue as to intoxication at the time of enlist- ment being presented by the pleadings, the fact that the recruit was permitted, apparently without objection, to testify to such intoxica- tion, does not constrain the court on appeal to review the latter question. (Thomas v. Winne, 122 Fed. Rep., 395.) Sec. 755. [Allowance and direction of writ.] The court, or justice, or judge to whom such application is made sliall forthwith, award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. The wT-it shall be directed to the person in whose custody the party is de- tained.— (5 Feb., 1867, c. 28, s. 1, v. 14, p. 385; Ex parte Watkins, 3 Pet., 193; Ex parte Milligan, 4 Wall., 2, (110). Suspension of privilege of writ — see note to Constitution, Article I, section 9, clause 2. The writ need not be awarded where it is obvious that, before a return to the writ can be made, or any other action can be taken, the restraint of which the petitioner complains would have terminated. (Ex parte Baez, 177 r. S., 378.) Persons confined by naval oflB.cers are not in the custody of the Secretary of the Navy so as to warrant the issuance of a writ of habeas corjius directed to him. (McGowan v. Moody, 22 Ap]). D. C, 148; see note to sec. 752, R. S.) " If the party is not in the custody of the officer to whom the ^vrit is directed, he will so state in his return." (G. 0. No. 121, Navy^ Dept., Sept. 17, 1914, par. 7; see also file 26262- 1665: 41, Inc. 1, p. 26.) Service of writ. — A writ of habeas corpus was issued by a Federal judge, directed to the commanding officer of the Arkansas, which vessel was under orders to sail from the navy yard, Norfolk, Va. , on the morning thatthe writ was returnable. The writ was not served, but the United States marshal communicated with the commandant of the navy yard, who informed the commanding officer of the Arkansas by radiogram that the wi'it had been issued ; where- upon the commanding officer delivered the party named therein to the commandant of the navy yard, and sailed in accordance with pre- vious orders. Held, That the radiogram from the commandant was in no sense legal service on the commanding officer of the Arkansas of the WTit of habeas corpus; however, thelatter's action in delivering the party to the com- mandant, under the circumstances, was ap- proved. (File 26522-26, Nov. 30, 1914.) A writ of habeas corpus was issued by a United States judge, addressed to the Secretary of the Navy, the commandant of the navy yard, Brooklyn, N. Y., "and any other person having custody of" the enlisted man named in said writ. The writ was delivered at the naval prison, navy yard. New York, about 3.45 p. m. The prisoner had been transferred under guard from said prison at about 3p.m. the same day. The original of the writ was then served upon the prisoner's guard, while waiting on the Bay State Line pier for instructions just prior to leaving 404 The Judiciary. Pt.2. RE VISED STAT UTES . Sec. 757, with his prisoner for the naval prison, Ports- mouth, N . H . The circumstances were reported to the commandant, navy yard, New York' who directed that the guard carry out his orders to deliver the prisoner at Portsmouth, which was done. The matter being brought to the atten- tion of the Secretary of the Navy, orders were immediately issued for the return of the prisoner to New York and his production in court in answer to the writ of habeas corpus, the com- mandant's attention being invited to the erro- neous procedure adopted by him in directing the guard to proceed with his prisoner to Ports- mouth after a writ of habeas corpus had been served upon said guard ; the fact that a writ of habeas corpus issued by a Federal court must always be obeyed ; and the unnecessary annoy- ance and expense caused by the erroneous pro- cedure in this case. (File 26522-25.) Sec. 756. [Time of return.] Any person to whom such writ is directed shall make due return thereof within three days thereafter, unless the party be detained beyond the distance of twenty miles; and if beyond that distance and not beyond a distance of a hundred miles, within ten days; and if beyond the distance of a hundred miles, within twenty days.— ^(5 Feb., 1867, c. 28, s. 1, V. 14, p. 385.) Full time permitted. — "The officer upon whom such a writ of habeas corpus is served can not be required to obey same in any shorter period after the service of the writ than that specified in the above section of the Revised Statutes, even though the writ should in terms require that the person named therein be pro- duced 'forthwith,' or 'immediately,' or at a specified time." (G. O. No. 121, Na^T Dept., Sept. 17, 1914, par. 5, citing Ex parte Baez, 177 U. S., 389, and United States v. Bollman, 24 Fed. Cas., 1190.) Commanding oflB.cers of vessels or shore stations of the Navy or Marine Corps are for- bidden to deliver any person in their custody or under their control to the civil authorities, in obedience to writs of habeas corpus, without first communicating with the Secretary of the Navy and awaiting his instructions in the premises. "The Secretary of the Na\^ will promptly issue the necessary orders in the case or make request upon the Attorney-General, in accordance with Title VIII of the Revised Statutes of the United States, to furnish such legal assistance to the commanding officer con- cerned as the interests of the United States involved in such case may demand." Should instructions for any reason not be received by the commanding officer from the Secretary of the Navy by the last day of the period allowed by law for making return, he will comply with sections 757 and 758 of the Revised Statutes, and request the court to delay the hearing of the cause for the full period of five days allowed by section 759, Revised Statutes, so that fur- ther opportunity may be afforded for the re- ceipt of instructions in the premises from the Secretarv of the Navy. (G. O. No. 121, Na\y Dept., Sept. 17, 1914.) A fine of $1,000 for contempt of court was imposed upon General Jackson, at the close of the War of 1812, for refusing obedience to a writ of habeas corpus, which fine he paid. (See Dow v. Johnson, 100 U. S., 158, 194, noted under Constitution, Art. I, sec. 8, clause 11, "Effect of martial law.") An oflS^cer of the Army refused during the Civil War to receive service of a writ of habeas corpus issued by the Chief Justice of the United States on the ground that the privilege of the writ had been suspended by him, under author- ity from the President. The chief justice held that he was without power to proceed further in the premises, and that it became the duty of the President under the Constitution, Arti- cle II, section 3, to come to the aid of the judi- cial authority when resisted by a force too strong to be overcome, assisting it to execute the process and enforce its judgments. (Ex parte Merryman, 17 Fed. Cas. No. 9487; see note to Constitution, Art. I, sec. 9, clause 2, and Art. II, sec. 3.) When service of the writ is prevented by force, the court does not perceive that any- thing more can be done. "The court deeply regrets that officers of the United States should obstruct process out of a court of the United States, especially this process;" nevertheless, "those officers are at present beyond the con- trol of the law, and the court has not the com- mand of the physical force needful to effect a service of this writ at the present time. Let the MTit be placed on file, to be served when and where service may become practicable." (In re Winder, 30 Fed. Cas. No. 17867.) An order from the War Department to a United States marshal not to obey a writ of habeas corpus is no protection to such officer, who is answerable for contempt of court for refusing obedience to the writ. (Ex parte Field, 9 Fed. Cas. No. 4761.) Sec. 757. [Form of return.] The person to whom the writ is directed shall certify to the court, or justice, or judge before whom it is returnable the true cause of the detention of such party. — (5 Feb., 1867, c. 28, s. 1, v. 14, p. 385.) "If the party is not in the custody of the Dept., Sept. 17, 1914, par. 7; see also file 262G2- olficer to whom the writ is directed, he will so 1625:41, Inc. 1, p. 26.) state in his return." (G. O. No. 121, Navy 405 Sec. 767. Pt.2. REVISED STATUTES. The Judiciary. The following; is a form of return which has been used in such a case (see citation last above noted): "Return of Respondent. "U.S.S. , "Hampton Roads, Va., Nov. 13, 1912. "In re W. \V. D. , Chief Com- missary Steward, U. S. Navy. "To the Honorable The Judge of the U. S. District Court, Eastern District of N'irginia: "The respondent, Captain J. A. H , U. S. Navy, having been served a writ for the production of W. W. D , respectfully makes return and states that the said W. W. D is not now under his command. "J \ jj_ "Captain, U. S. Navy, "Commanding U. S. S.- For form of return filed in the case of an officer of the Navy who applied for a writ of habeas corpus while under arrest awaiting trial by court-martial, but not in actual custody, merely being confined "to the limits of the city, " in which such trial was to be had, see Wales v. WTiitney, 114 U. S., 567. The following form of return has been prescribed by the Secretary of the Navy for the guidance of officers on whom writs of habeas corpus are served by Federal courts or judges (see Naval Courts and Boards, 1917): • "In the District Court of the United States for the (Eastern) District of (Virginia). "In the Matter of A F. B- IReturn of re- — ./ spondent. "Upon application for writ of Habeas Corpus. "To the Honorable G— H. R , Judge of said Court {or To the said Court): "1. Comes now M H. C , captain, U. S. Navy {or U. S. Marine Corps), commanding officer of the , and by way of return to the writ of habeas corpus issued herein, states, in conformity with the provisions of section 757 of the Revised Statutes of the United States, as follows, to wit: "2. That the said A F. B enlisted in the United States Navy {or in the United States Marine Corps) as on the day of , 19 — , at (Boston, Massachusetts), for a term of four years from that date. "3. That the said A F. B , at the time of his enlistment as aforesaid, stated on oath that ho was born on the day of , 1— — , thus making him more than eighteen years of age, as will appear from a copy of the enlistment record of said A— F. B , hereto attached asapartof thisrotiu'n; that since the enlist- ment of said A F. B he has received pay and allowances from time to time thereunder; that on the day of , 19—, the said A F. B was detained and recommended for trial by general court-martial for fraudulent enlist- ment in the United States Navy, in viola- tion of the act of (.'ongress approved March 3, 1893, United States Statutes at Large, volume twenty-seven, page seven hundred and sixteen ; and that said action was before the issuing of the writ herein. "4. That the said A F. B deserted from said United States Navy {or United States Marine Corps), at (Boston, Massachusetts), on the - — — ■ — day of , 19 — , and rejuained absent in desertion until he was apprehended at (Norfolk, Virginia), on the day of — ;— — •, 19 — •, and was thereupon com- mitted to the custody of the respondent, as commanding officer of the • — ; and that the said A- F. B- — was detained and recommended for trial by general court- martial for said offense of desertion in vio- lation of section 1624 of the Revised Statutes of the United States. "5. That the said A F. B has been duly arraigned and tried for the said offenses before a general court-martial convened by order of the Secretary of the Navy (and is now held, awaiting the action of the convening authority upon the pro- ceedings and findings of said court) {or was convicted thereof by said court and was sentenced to , which sen- tence was appro^Td) {or was mitigated to , and approved) on the day of , 19 — , by the Secretary of the Navy, as required by article 53, section 1624, of the Revised Statutes of the United States. (A copy of the order promulgating said sentence and the action of the Secre- tary of the Navv^ thereon is hereto at- tached.) "6. This respondent here produces in court the body of the said A F. B , as commanded by the writ of habeas corpus issued in this matter as aforesaid, but he prays that your honor {or this honorable court) will refuse to discharge the said A F. B , and will return and remand him to the custody of this respondent. "Respectfully submitted. "M— H. C , "Captain, U. S. Navy, "Commanding . " , 19—. " Var. 1. — If the offense is not fraudulent enlistment by a minor under 18 years of age, omit paragraph 3 above. "Var. 2. — If the offense is fraudulent enlistment by a minor under 18 years of age without desertion, omit paragraph 4 above. "Var. 3. — If the offense is neither fraudu- lent enlistment by a minor under 18 years of age, nor desertion, omit paragraphs 3 and 4 above and substitute an appropriate description of the offense for which the accused is detained, and state whether or not he has been recommended for trial by general court-martial for said offense. "Var. 4. — If the accused has not been tried by general court-martial, omit para- graph 5 above." 406 The Judiciary. Pt.2. REVISED STATUTES. Sec. 761. Sec. 768. [Body of party to be produced.] The person making the return shall at the same time bring the body of the party before the judge who granted the A\Tit.— (5 Feb., 1867, c. 28, s. 1, v. 14, p. 385.) See note to section 756, Revised Statutes. " In case of a person who is going at large, with no one controlling or watching him, or detaining him, his body cannot be pro- duced by the person to whom the writ is di- rected, unless by consent of the alleged jirisoner, or by his capture and forcible traduction into the presence of the court." In such a case there is nothing to support a habeas corpus. (Wales V. Whitney, 114 U. S., 564; see note to sec. 752, R. S.) " If the party is not in the custody of the officer to whom the writ is directed, he will so state in hisreturn." (See note to sec. 757, R. S.) Sec. 769. [Day for hearing.] Wlien the writ is returned, a day shall be set for the liearing of the cause, not exceeding five days thereafter, unless the party petitioning requests a longer time. — (5 Feb., 1867, c. 28, s. 1 v. 14, p. 385.) See note to section 756, Revised Statutes. Sec. 760. [Denial of facts in the return ; amendments.] The petitioner or the party imprisoned or restrained may deny any of the facts set forth in the return, or may allege any other facts that may be material in the case. Said denials or allegations shall be under oath. The return and all suggestions made against it may be amended, by leave of the court, or justice, or judge, before or after the same are filed, so that thereby the material facts may be ascertained. — (5 Feb., 1867, c. 28, s. 1, v. 14, p. 385.) Sec. 761. [Summary hearing; disposition of party.] The court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require. — (5 Feb., 1867, c. 28, s. 1, v. 14, p. 385.) Summary hearing. — "The injunction to hear the case summarily, and thereupon ' dis- pose of the party as law and justice recpiire ' does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it." (Ex parte Royall, 117 U. S., 251.) Issues of fact. — This section confers ex- press power upon a Federal judge in halieas corpus proceedings to pass upon questions of fact; accordingly, where a soldier was arrested by the civil authorities of a State upon a charge of manslaughter growing out of the killing by him of a young woman while shooting at an escaping prisoner, Held, that the Federal judge was empowered in habeas corpus proceedings to inquire into the facts and decide that the soldier was free from blame and therefore not subject to prosecution in the State courts for manslaughter. (United States v. Lipsett, 156 Fed. Rep., 65; see also, note to Constitution, Art. I, sec. 8, clause 13, under ''III. Jurisdic- tion of Ci\-il Authorities.") [However, when the party is held pursuant to the laws and regulations governing the Navy, the onljr "facts" which the civil courts may inquire into on habeas corpus are whether the naval authorities have jurisdiction. (See note to sec. 753, R. S.) AMiere he is held pursuant to the finding of a court-martial the sufficiency of the evidence is no part of such facts. (See In re Stupp, 23 Fed. Cas. No. 13563.)] Disposition of party upon subsequent change of status. — A ^vrit of habeas corpus was issued to determine the legality of the confinement of a Chinaman held by the immi- gi-ation authorities upon order of deportation signed by the "Acting Secretary" of Labor, it being contended that such officer was not in fact the Acting Secretary at the time the order was signed, and that his order was therefore illegal and void. "WTiile the case was pending the Secretary of Labor personally re\'iewed the deportation proceedings and affirmed the pre- \dous order signed by the "Acting Secretary." Thereupon the court discharged the writ and remanded the petitioner to the custody of the immigration authorities, holding that in view of the action personally taken ])y the Secretary there remained "nothing at issue," and that "courts are not organized to do idle things, but to deternune issues presented," and it was un- necessary to examine into the right of the "Acting Secretarv." (Ex parte Ching Hing, 224 Fed. Rep., 261.) Disposition of party claiming discharge from Navy on ground of fraudulent en- listraent. — It is the policy of the Navy De- partment, upon return of the writ in fraudulent enlistment cases to request the court to make the order of discharge, if granted, to take effect only after trial and punishment by naval court- martial for the statutory offense involved. For cases where this request has been granted and 407 Sec. 761, Pt.2. REVISED STATUTES. The Judiciary. full statement of this policy, Bee file 2757-8 of August 27, li)0(i. (In this connection see pro- \ision in the naval appropriation act of March 3, 1915 (3S Stat.. 931). that any minor who fraudulently procures his enlistment in the Navy by making false oath as to age 'shall, upon request of either parent, or, in case of their death, by the legal guardian, be released from service in the Na\'y, u])on payment of full cost of first outfit, unless, in any given case, the Secretary, in his discretion, shall relieve said recruit of such payment. ")_ A minor who cnlista while under the statu- tory age wdthout the reciuired consent of his parents or guardian is "not only de facto, but de jure, a soldier — amenable to military juris- diction,"' and can not seciu"e his discharge upon habeas corpus proceedings instituted by him- self. The statutory requirement of consent in such cases "is for the benefit of the parent or guardian. It means simply that the Govern- ment will not distiu"b the control of the parent or guardian over his or her child without con- sent. It gives the right to such parent or guar- dian to invoke the aid of the court and secure the restoration of a minor to his or her control; but it gives no pri\-ilege to the minor." (In re Morrissev, 137 U. S., 157; Solomon v. Daven- port, 87 Fed. Rep., 318.) Since the decision of the Supreme Court in Morrissey's case (above noted) it is the settled law that the enlistment of a minor in the Army or Navy without the written consent of his parents or guardian and against the prohibition of the statutes of the United States is not void, but voidable only ; that it is good as to the minor but voidable at the instance of the parent or guardian. But not\\'ithstanding such enlist- ment is voidable, the civil courts on habeas corpus will not interfere to discharge one who is thus enlisted, "if at time of presentation of petition for the writ he has been arrested and is ])cing held on any charge cognizalile by a military court." It does not follow from the fact that such an enlistment is voidable that the enlisted minor may obtain immunity from prosecution for an offense committed by him against the law of the United States. (In re Scott, 144 Fed. Rep., 79; file 2757-1. In this case the minor was arrested on a charge of fraud- ulent enlistment preferred against him by his commanding officer to the Commandant of the Marine Corps, ^^^lile said charges were pending and undetermined the minor's father applied for a writ of hal^eas corpus; the court denied the petition without prejudice to the petitioner to renew same at the termination of the military proceedings and at the expiration of the sen- tence, if any be imposed thereunder; see also Dillingham r. Booker, 1G3 Fed. Rep., (i9G; 16 Ann. Cas., 127, file 595G-6; United States v. Pendleton, 1G7 Fed. Rep., 690.) \Miere the Secretary of the Navy preferred charges against a minor after hearing had been had upon a writ of habeas corpus gi-anted upon {)etition of minor's father to inquire into the egality of his enlistment, and while the court had the matter under advisement before ren- dering a decision, Ueld, that although the en- listment was voidable at the instance of minor's father, who had not consented thereto, ne^■er- theless he could not be discharged from the custody of the naval authorities on writ of habeas corpus until he had answered and sat- isfied the cnarges pending against him. (U. S. V. Reaves, 126 Fed. Rep., 127; file 15204. In this case the minor, after fraudulently enlist- ing and receiving pay from the (Government, deserted; was arrested by the civil authorities and held as a deserter; his father sued out a writ of habeas corpus; the chief of police made return on Jan. 5, 1903, the hearing of which was set for Jan. 15, 1903, and the matter held under advisement until Feb. 16, 1903. In the meantime, Feb. 12, 1903, the Secretary of the Navy preferred charges against the minor for desertion and fraudulent enlistment, which were served upon the prisoner. His discharge was ordered by the circuit coiut (121 Fed. Rep., 848), but on appeal the decision was reversed.) A minor under 18 years of age enlisted in the Navy without the consent of his parents; deserted; was arrested by the civil authorities on a charge of desertion; while confined for safe-keeping his father applied for his discharge on habeas corpus. Held, that the minor was subject to arrest and punishment for desertion and other infractions of the rules and regula- tions of the Navy, and can not be discharged on writ of habeas corpus pending proceedings against him therefor. (Ex parte Rock, 171 Fed. Rep., 240; see also In re Lessard, 134 Fed. Rep., 305.) A minor under the age of 18 years enlisted in the Navy without the consent of his parents, who petitioned for a writ of habeas corpus. In the meantime, prior to the suing out of the writ, said minor was "detained and recom- mended" for trial by court-martial for fraudu- lent enlistment. Upon the hearing it did not appear that charges had been preferred against him. Held, that the petitioners are entitled to the discharge of the minor on habeas corpus, and the right can not be denied because of contemplated or possible court-martial pro- ceedings against the minor for fraudulent enlistment, especially where between the time demand for his discharge was made by his parents of the naval authorities and the pro- curing of the writ, several months elapsed, during which no proceedings were taken against him. (Ex parte Bakley, 148 Fed. Rep., 56; affirmed Dillingham v. Bakley, 152 Fed. Rep., 1022; file 5506-5; compare Dillingham V. Booker, 163 Fed. Rep., G9G, 16 Ann.Vas., 127, file 5956-6, which arose in the same juris- diction, and in which the minor was remanded to the custody of his commanding officer; in the latter case it was shown beyond question that the minor was being held for trial by court- martial for desertion.) An enlisted man arrested by a civil officer as a deserter from the Navy will not be dis- charged on habeas coi-pus upon the allegation that he was intoxicated at the time of enlist- ment. "It seems to me illogical to say that a man can commit a crime and when arrested obtain a discharge on the ground that the original enlistment was not regular or proper." (In re Hamilton and Carroll, Superior Court, Fulton County (Ga.), Atlanta Circuit, file ■ 7969 and 7988-04; see also In re McVey, 23 Fed. Rep., 878.) 408 The Judiciary. Pt.2. REVISED STATUTES. Sec. 761. An enlisted soldier can not avoid a charge of desertion by showing at the time when he voluntarily enlisted he had passed the age at which the law allows recruits to be enlisted for the Army. (In re Grimley, 137 U. S., 147.) Minors between the ages of 18 and 21 years may be enlisted in the Navy without the con- sent of their parents or guardians, being in- cluded in the term "other persons" in section 1418, Revised Statutes, as amended. (Thomas V. Winne, 122 Fed. Rep., 395; see also In re Doyle, 18 Fed. Rep., 3(39; In re Norton, 98 Fed. Rep., 606.) The age at which an infant shall be competent to do any acts or perform any duties, civil or military, depends wholly upon the legislature. (In re Morrissey, 137 U. S., 157.) Disposition of party claiming discharge from Marine Corps on ground of fraudu- lent enlistment. — The Marine Corps is not an independent organization, but is part of the Navy rather than of the Army; and sections 1418-1419, Revised Statutes, which, taken together, authorize the enlistment of minors over 18 years of age to serve in the Navy without the consent of their parents or guardians, apply to enlistments in the Marine Corps as well; so that a minor who has enlisted in the Marine Corps -when over 18 years of age will not be dis- charged from the custody of the officers of the Marine Corps in habeas corpus proceedings brought by the father, who did not consent to the enlistment. (Elliott v. Harris, 24 App. D. C, 11, follovs-ing In re Doyle, 18 Fed. Rep., 369, and overruling In re Shugrue, 3 Mackey (D. C), 325, as being "in manifest conflict with the principle upon which the subsequent case of United States v. Dunn (120 U. S., 249) -was decided by the Supreme Court of the United States." See also file 26251- 6297:7, May 18, 1914, and 26251-6297:8, June 4, 1914. But see McCalla v. Facer (144 Fed. Rep., 61), in which the court approved and followed In re Shugrue, apparently overlook- ing the fact that said case had been overruled.) Section 1117, Revised Statutes, proAdding that no person under 21 years of age shall be enlisted or mustered into the military service of the United States, refers exclusively to enlist- ments in the Army and does not include enlist- ments in the Navy or Marine Corps. (Elliott v. Harris 24 App. D. C, 11.) As to status of Marine Corps, see note to sec- tion 1621, Revised Statutes. Appeal from decision of court or judge granting -writ. — It is required by regulations of the Navy Department (published in Naval Courts and Boards, 1917), that whenever an adverse decision is rendered in habeas corpus proceedings against any officer of the Navy or Marine Corps, such officer or counsel shall note an appeal pending instructions from the Navy- Department, and shall immediately make re- port to the Judge Advocate General, forwarding to him direct a copy of the opinion of the court as soon as it can be obtained. Insane persons in the Army and Navy law- fully committed by the Secretary of War or Sec- retary of the Navy to the Government Hospital for the Insane should continue to be held by the superintendent of that hospital until the court orders otherwise or imtil they are cured. The United States attorney for the District of Columbia has been instructed to advise the Department of Justice of any proceedings through which such patients secure their release from the hospital, so that consideration can be given to the question of securing a review of the case by the court of appeals. In this way an authoritative ruling can be had which will set at rest any question as to the right of the super- intendent to hold persons after their discharge from the Army or the Navy. (File 26251- 4927-10, July 8, 1911, quoting letter from De- partment of Justice to the Interior Department, dated Mar. 28, 1912.) Arrest of petitioner after discharge. — An enlisted man of the Marine Corps, discharged on habeas corpus proceedings, was afterwards arrested upon the charge of perjury in connec- tion with his sworn statements at time of enlist- ment and held for trial in the civil courts of the United States at the instance of the Navy De- partment. (File 5939-1, Oct. 12, 1906.) Later the prosecution was discontinued, because of the peculiar circumstances of hardship which it involved, the Secretary of the Na\'y con- curring in the recommendation of the United States attorney to this effect. (File 5939-7, Feb. 18, 1907.) In this connection see U. S. v. Chung Shee (71 Fed. Rep., 277), holding that the discharge of the party upon habeas corpus is res judicata as to the issues of law and fact involved, and that he is not subject to reaiTest for the same cause. Compare In re White (45 Fed. Rep., 237) and Ex parte Kaine (14 Fed. Cas., No. 7597), the latter holding that a deci- sion under one writ refusing the discharge of a prisoner is no bar to the issuing of any number of other successive writs by any coiu-t or m agis- trate having jurisdiction, and accordingly that the decision of a circuit court of the United States dismissing the Avrit and remanding the prisoner was no bar to an inqiiiry by a justice of the Supreme Com*t of the United States upon a habeas corpus issued by him into the legality of the detention of the prisoner. (Upon ques- tion whether decision adverse to petitioner pre- vents a new petition being filed for the same cause, where an appeal was not taken see King V. McLean Asylum, 64 Fed. Rep., 331.) The Navy Department has authority under the law to recommit an officer to the Govern- ment Hospital for the Insane after his discharge therefrom has been ordered by the Supreme Court of the District of Columbia in accordance with the finding of a jury that he is of sound mind. However, to avoid placing itself in the position of disregarding the court's action suffi- cient time should elapse and new evidence be obtained, so that a second habeas corpus pro- ceeding could be successfully met. (File 8528-327, Apr. 18, 1911.) Wliere the Supreme Court of the District of Colum1)ia decided that an officer of the Navy was entitled to his discharge from the Govern- ment Hospital for the Insane but the chief justice agreed to withhold the signing of an order until the Navy Department could be com- municated with and be heard on the subject, the Navy Department ordered the officer in question to a naval hospital for treatment, and decided to take no further action in the case. (File 8528-327:2, Jan. 31, 1911.) 409 CHAPTER SIXTEEN". WITNESSES' FEES. Sec. 848. 849. 850. Witnesses' fees. No officer of court to have witness fees. Witnesses in Government service allowed actual expenses. Sec. 851. Witnesses transported on Government or private vessel. Sec. 848. [Witnesses' fees.] For each day's attendance in court, or before any officer pursuant to law, one dollar and fifty cents, and five cents a mile for going from his place of residence to the place of trial or hearing, and five cents a mile for returning. When a witness is subpoenaed in more than one cause between the same parties, at the same court, only one travel fee and one per diem compensation shall be allowed for attendance. Both shall be taxed in the case first disposed of, after which the per diem attendance fee alone shall be taxed in the other cases in the order in which they are disposed of. When a witness is detained in prison for want of security for "his appearance, he shall be entitled, in addition to his subsistence, to a compensation of one dollar a day. [See §§ 879, 881.]— (26 Feb., 1853, c. 80, s. 3, v. 10, p. 167; 1 May, 1876, c. 88, v. 19, p. 41; Dennis v. Eddy, 12 Blatch., 195.) Witnesses before naval courts are to be allowed fees and mileage at the rates provided for witnesses in the United States district courts for the State, Territory, or district in which such naval court is held. (Act Feb. 16, 1909, sec. 12, 35 Stat., 622.) Witness fees allowed for giving depositions for use in Federal courts — see section 870, Revised Statutes. Witness fees allowed for giving depositions for use in. State courts — see section 874, Re- vised Statutes. Witness fees allowed for giving depositions for use before departments in pending claims — see section 185, Revised Statutes. Witnesses in Government employ — see section 850, Revised Statutes. Witnesses in United States courts in Wyoming, Montana, Washington, Oregon, California, Nevada, Idaho, Colorado, Utah, New Mexico, and Arizona are allowed $3 a day during attendance and necessary travel time; and 15 cents a mile for travel by stage or private conveyance; and 5 cents a mile for other travel. (Act May 27, 1908, sec. 1,35 Stat., 377.) Witnesses in courts in District of Columbia are allowed $1.25 a day and 5 cents a mile com- ing and returning when summoned from without the District. (Sec. 1] 14. Code, D. C, act Mar. 3, 1901, 31 Stat., 1367). Courts-martial. — Section 1202, Revised Statutes, which authorizes judge advocates of Army courts- martial "to issue like process to compel witnesses to appear and testify which courts of criminal jurisdiction within the State, Territory, or District where such mili- tary courts shall be ordered to sit, may lawfully issue," operates to make applicable to such courts-martial the provisions of section 848, Revised Statutes, fixing the amount of fees and mileage of such witnesses before courts of the United States. As there is but one statute upon the subject of witnesses attending in court or before an officer, I feel compelled to hold that the words ' ' in court " are Inroad enough to include a court-martial, and that the analogy existing between what is exacted of a witness, both in the matter of attendance upon and the giving of testimony, whether in a civil or criminal court on the one hand or in a court- martial on the other, is so great, coupled with the fact that there is but one statute, as above stated, regulating the compensation of wit- nesses in attendance upon any court or any officer pursuant to law, that I see no way of escape from the conclusion that a witness in attendance upon a court-martial vshall be paid the same, and no more than is paid to a wit- ness in attendance upon a civil or criminal court. Since there is a statute regulating the amount of per diem and traveling expenses of a witness in attendance "in court," it seems clear to my mind that that shall be made ap" plicable to cover the compensation of a witness "in a court-martial" rather than leave it to the discretion of even so high an authority as that of the honorable Secretary of War. (1 Comp. Dec, 79. In this case the War De- partment took the position that the appropri- ation for compensation of witnesses attending courts-martial is to be expended under the rules and regulations prescril:)ed by the Sec- retary of War, and the rate of compensation is a matter to be left entirely to the discretion of the Secretary of War. The Comptroller took 410 The Judiciary. Pt.2. REVISED STAT UTES . Sec. 848. the %'lew that there being a statute in force regulating the compensation of witnesses in attendance upon courts and before judges and others authorized to compel their attendance, it was applicable also to a witness compelled by process of law to attend Ijefore a court- martial; and accordingly concluded that civilian witnesses duly sulipoenaed to attend before a court-martial are entitled only to such compensation as is paid to witnesses in attend- ance upon United States courts.) A military commission is not a court-martial. (Dig. Comp. Dec, 89.) For other cases, see below, "Expert wit- nesses"; and see note to section 850, Revised Statutes. Departmental regulations govern the use of departmental appropriations, but do not apply to appropriations for expenses of wit- nesses, which are by law audited by and dis- bursed upon order of the court. (18 Comp. Dec, 992, citing U. S. v. Sanborn, 135 U. S., 271, 284; see also "Courts-martial," above.) Fees allowed for Sunday. — I have not found any case specifically holding that under section 848, Revised Statutes, which provides for compensation to witnesses for attendance in Federal courts, a witness is entitled to a per diem for Sunday when obliged to remain over from one week to another in the hearing of a case . There are cases, however, to that effect in State courts, under State laws similar to section 848. It has also been held that a witness in attend- ance upon the court, although not actually tes- tifying, is entitled to his per diem compensation for the days which he thus necessarily attends. It would seem, therefore, not improper, when in the discretion of the court or commissioner such action is necessary, to allow a witness his per diem for Sunday under the circumstances stated. (1 Comp. Dec, 252.) Witness in two cases. — A witness who at- tended under subpoenaes on behalf of the United States before the same commissioner on the same day in two cases against different defendants, and was sworn and testified in each case and was allowed a separate per diem therefor in each case for the same day by the commissioner, is entitled to the separate per diem as allowed. (14 Comp. Dec, 378.) A witness who attends before a United States commissioner in Kentucky in different cases on the same day is entitled under section 848, Revised Statutes, to 5 cents a mile for each mile he actually travels in going from his place of residence to the place of hearing, and 5 cents a mile for returning, but is not entitled to double or constructive mileage. (15 Comp. Dec, 796.) Voluntary attendance of witness. — Where a person voluntarily present at proceed- ings before a United States commissioner is called upon to testify, he is entitled for his services as such witness to the usual per diem, but not to mileage. (11 Comp. Dec, 792.) Amount of fees can not be exceeded. — Section 848 is mandatory and limits the amount that may be paid to any witness under ordi- nary circumstances, however much said wit- ness may lose in obeying a summons of a court. Accordingly, held that a Chinese in.spectorin charge is not entitled to reimbursement for an amount paid by him to a railroad employee residing within the jurisdiction of the court's process for loss sustained by such employee by reason of his serving as a witness for the Gov- ernment in Chinese-exclusion cases, for which service such employee received from the Gov- ernment fees and mileage as provided bv sec- tion 848. (12 Comp. Dec, 660; see also 6 Op. Atty. Gen., 356.) Additional allowance to witness outside of jurisdiction. — If the Secretary of the Treas- ury, in the exercise of his discretion, deems it a necessary expense in the enforcement of the Chinese-exclusion acts, the sum of $68 may be paid from the appropriation for enforcing said acts, to secure the attendance in a Chinese smuggling case of an important witness living in Mexico, who refuses to attend without such payment. (4 Comp. Dec, 106.) The appropriation for expenses of collecting the revenue from customs is applicable to the compensation and expenses of witnesses under agreements to come within the jurisdiction of the courts, and the expenses incurred by an assistant district attorney in collecting evidence when the testimony of the witnesses and the evidence collected are necessary in proceedings for the forfeiture of goods seized by customs officers. (4 Comp. Dec, 519.) The Secretary of the Treasury is authorized to enter into an agreement to compensate a witness whose testimony is necessary in the prosecution of a smuggler, for coming within the jurisdiction of the courts, and to reimburse him for the necessary expenses incurred in performing the service. The appropriation for prevention and detection of frauds upon the customs service is applicable to the expenses of procuring evidence to be used in the prosecu- tion of a smuggler. (4 Comp. Dec, 495.) If the Secretary of Commerce and Labor in the exercise of his discretion deems it a necessary expense in the enforcement of the alien im- migration act, the sum of $3.50 per day may be paid by him from the appropriation for the expenses of regulating immigration to secure the attendance of a witness living in Mexico who refuses to attend unless paid that amount in addition to the witness fee provided for by section 848 of the Revised Statutes. (12 Comp. Dec, 438, citing 4 Comp. Dec, 106.) A United States commissioner has no au- thority to issue process to be served outside of his district. Accordingly, a witness attending a hearing before a commissioner in a district other than that of the residence of such witness is entitled to mileage only from a point within the commissioner's district nearest the resi- dence of the witness to the place of the hearing and return therefrom to said point; if the sub- poena is issued in such case by a United States court, whose process runs into any other district, the witness would be entitled to mileage for going from his residence to the place of hearing and returning therefrom. (14 Comp. Dec, 752.) A United States commissioner is not au- thorized to issue a subpoena for a witness outside of his district, and a witness attending before a commissioner upon a subpoena issued by him is entitled to mileage for travel within his district only. (9 Comp. Dec, 121.) 54641°— 22 27 411 Sec. 848. Ft. 2. REVISED STATUTES. The Judiciary. A subpoena issued under section 4 of the act of January 31, 1903 (32 Stat., 790, relative to depositions for use before registers and re- ceivers of the land ollice) does not run outside of the county in which the witness resides; and when a witness in obedience to such subpoena testifies in another county, said wdt- ness is entitled only to mileage from his resi- dence to the border of the county nearest to the pliice where the deposition is taken. (17 Oomp. Dec, 983.) Expense of witness in preparing to tes- tify. — Wlien it becomes necessary for a witness to proceed from (^hicago to New York and return, for the purpose of refreshing his memory before testifying in an antitrust case in Chicago, compensation and expense of travel by such witness may be paid from the appropriation "Enforcement of the Anti-Trust laws, etc., 1912. " This preliminary preparation could not h ave been rec^uired of him under his obligation as a witness m the case, and he did not. by reason of this employment, become entitled to the fees and mileage allowed by law to wit- nesses. He is entitled, however, subject to the Attorney General's approval, to such com- pensation as may have been agreed upon, whether fixed by reference to fees of witnesses or otherwise. The appropriation for fees of witnesses is clearly not applicable, as it applies only to mileage and attendance in court or before any officer pursuant to law. The ex- pense was incident to the preparation of the case rather than to its trial. (18 Comp. Dec, 541.) Expert witnesses.— A witness is one who may be compelled to testify concerning a trans- action which he has fortuitously beheld; an expert is one who testifies as to his own self- acquired knowledge, which he can not be com- pelled to impart by the expedient of calling him as a -witness. (In re Maj. William Smith, 24 Ct. Cls., 209; 0. M. O. 19-1915, p. 4.) The Government can not acquire the serv- ices, skill, or knowledge of an expert without his consent and without just compensation. (In re Maj. William Smith, 24 Ct. Cls., 209.) The employment of experts before a court- martial is within the legal and proper discretion of the Secretary of War, and his order to employ and pay them is official authority to an officer who, in the ordinary discharge of his duty, makes such payments, and protects him from the summary remedy of having his pay stopped . (In re Maj . William Smith, 24 Ct. Cls. , 209. As to emplojTTient of expert witnesses by accused before na^al courts-martial, see note to Consti- tution, sixth amendment.) Where a civilian physician was subpoenaed to attend before a naval court of inquiry as an ordinary witness to testify to facts within his knowledge, he is entitled merely to ordinary witness fees, notwithstanding that in the course of his examination his testimony may have de- veloped into the nature of expert testimony. In both civil and military courts, compensation for expert testimony is a matter for determina- tion between the witness and the party calling him for such testimony. In the Na\^% if the testimony of an expert, as such, is desired, the question is one which must be submitted in each specific instance to the Navy Department for its determination as to whether the circum- stances warrant the expenditure. In this case, the judge advocate having summoned the claimant as an ordinary witness, and having no authority to summon him for any other purpose, the claim for compensation as an expert witness can not be approved. (File 26276-105, Mar. 16, 1915.) The compensation of expert witnesses, the expenses of collecting evidence, and the pur- chase and preparation of exhibits in connection with suits against collectors of customs may, under the long-established practice, be paid from the appropriation made for the expenses of collecting the revenue from customs. (1 Comp. Dec, 249.) An expert witness summoned to appear before the Board of United States General Ap- praisers may be allowed, in addition to the ordinary witness fees, such sum as the Secretary of the Treasury may direct, payable from the appropriation for collecting the revenue from customs. (2 Comp. Dec, 449.) Where the employment of expert witnesses is necessary to properly enforce the pm-e food and drugs act, the Secretary of Agriculture is authorized to employ and pay such expert wit- nesses from the appropriations made to caiTy into effect the pro\isions of said act. (15 Comp. Dec, 757.) Interpreter not witness. — The expenses of a person M'ho did not attend as a witness in the case, but who was present as an "inter- preter," are not chargeable to the appropriation "Fees of witnesses, United States courts," but to the appropriation "Miscellaneous expenses, United States courts," upon the authorization and approval of the Attornev General. (16 Comp. Dec, 92.) Increased allowances in certain States. — The act of August 3, 1892 (27 Stat., 347, super- seded by act of May 27, 1908, sec. 1, 35 Stat., 377, noted above), does not apply to witnesses at- tending before United States commissioners, as such proceedings are not in any court of the United States. (2 Comp. Dec, 66.) Larger fees and mileage are allowed to wit- nesses in some districts than in others, because local conditions make the hardships and ex- pense of travel greater. The reason does not apply where the deposition of a witness is taken elsewhere for use in one of the districts where the larger allowance is paid witnesses for testi- fying therein. The act of January 31, 1903 (32 Stat., 790), relating to compulsory attendance of witnesses before registers and receivers of the land office, provides that when the witness resides outside of the county in which the hearing is held, any party to the proceedings may take his testimony by deposition in the county of his residence, and provides further that such witness "shall receive the same fees and mileage, and be subject to the same pen- alties in all respects, as in cases of the \'iolation of sul)poena to appear l)efore the register or receiver and subject to the same limitations." The act provides that the fees and mileage of witnesses l^ef ore a register or receiver ' ' shall be the same as that provided by law in the district courts of the United States in the district in which such land offices are situated." Held, that a witness whose deposition is taken under 412 The Judiciary. Ft. 2. REVISED STATUTES. Sec. 850. the act of January 31, 1903, for use in a hearing before a register or receiver of the General Land Office is entitled to the fees allowed to witnesses in the United States district court in the district in tvhich the deposition is taken. (20 Com p. Dec, 308, overruling 16 Comp. Dec, 153, which held that witnesses residing in New York City, while testifying in the county of their residence by deposition before a commissioner under ap- pointment issued by the authorized ofhcers of the land office in Wyoming, are entitled to $3 a day, payable in advance if necessary to secure their testimony, this being the amount allowed by the act of May 27, 1908, for witnesses in Wyoming, and the law providing that wit- nesses in proceedings before registers and re- ceivers shall be entitled to the same fees as provided by law in the district court of the United States in the district in which such land offices are located.) Such witness, testifying by deposition in Alaska, is entitled to the witness fees allowed in the United States district court in the judi- cial division of the district of Alaska in which the deposition is taken. (20 Comp. Dec, 308.) Witness against the United States. — As a general rule, when the United States is a party to a suit it is not liable to pay costs in- curred by the adverse party, even though such adverse party prevail in the suit, unless there is an affinnative statute clearly making the United States liable therefoi-. (16 Comp. Dec, 693.) The act of Augustl, 1888 (25 Stat., 357), re- lating to condemnation proceedings to acquire sites for public bu'ldings, does not imply that the United States should stand upon the same footing in a State as would a quasi public cor- poration, or other artificial entity with refer- ence to the payment of costs. (16 Comp. Dec, 693.) When the defendant in condemnation pro- ceedings has incurred expenses in procuring the attendance of witnesses upon the day set for trial, and the case was on said day continued upon motion of the district attorney and was subsequently dismissed at the request of the Government, and there is no Federal or State statute clearly authorizing the taxing of de- fendant's costs against the Government or their payment by the Government , such expenses are not legally payable from Government funds. (16 Comp. Dec, 693.) When land has been condemned and the court in rendering judgment includes in said judg- ment or award certain costs, such judgment in- cluding the costs, would be a legal charge against the appropriation to acquire the site when the payment of the judgment was made a condition precedent to vesting title in the Government. (16 Comp. Dec, 693.) _ Nothing said in the above decision isintended to relieve the judicial appropriations from the payment of fees to witnesses subpoenaed by and for the United States, and who attend court as witnesses for the Government in con- demnation proceedings, when such witnesses are paid by the marshal upon order of the court. (16 Comp. Dec, 693.) For other cases, see "Courts-martial," under section 850, Revised Statutes, "II. Witnesses for the Government." Appropriation from which paid. — A wit- ness summoned to appear before the board of United States General Appraisers is entitled to the allowances for witnesses prescribed in section 848, Revised Statutes, payable from the appropriation for collecting the revenue from customs. (2 Comp. Dec, 449.) For other cases, see decisions noted above under this section; and see note to section 850, Revised Statutes, under "V. Appropria- tion from which Paid." Sec. 849. [No officer of court to have witness fees.] No officer of the United States courts, in any State or Territory, or in the District of Columbia, shall be entitled to witness fees for attending before any court or commissioner where he is officiating.— (16 Aug., 1856, c. 124, s. 8, v. 11, p. 50. 21 July, 1852, c. 66, s. 1, V. 10, p. 16, (22).) Sec. 850. [Witnesses in Government service allowed actual expenses.] When any clerk or other officer of the United States is sent away from his place of business as a witness for the Government, his necessary expenses, stated in items and sworn to, in going, returning, and attendance on the court, shall be audited and paid; but no mileage, or other compensation in addition to his salary, shall in any case be allowed. — (26 Feb., 1853, c. 80, s. 3, v. 10, pp. 167, 168.) Witness fees in general — see note to section 848, Revised Statutes. Expenses of subsistence limited to $5 per day. (Act Apr. 6, 1914, 38 Stat., 318; 22 Comp. Dec, 484.) I. What Persons Included. II. Witness for the Government. III. Nature of Proceedings. IV. Character op Expenses Allowed. V. Appropriation from Which Paid. I. What Persons Included. The words "clerk or other officer" must be construed in the broad sense of "official," and includes an employee. (9 Comp. Dec, 276; 17 Comp. Dec, 586: 22_Comp Dec, 126.) The word "officer" in this section has been construed in the broad sense of "ofiicial" and includes an employee. (18 Comp. Dec, 896, citing 5 Comp. Dec, 797; 9 Comp. Dec, 276; 17 Comp. Dec, 584.) 413 Sec. 850. Pt.2. REVISED STATUTES. The Judiciary. A department clerk when subcepnaed to testify on behalf of the United States has no rif2:ht to witness fees, but his expenses are allow- able. (21 t)p. Atty. Gen., 263.) See below, "Persons in Army and Navy." Waiver of salary. — An oflicer or employee for whom a salary i.s provided by law can not, by relinquishing his salary, become entitled to fees or mileage as a witness for the Govern- ment. (9 Comp. Pec, 27G.) Persons in Army and Navy. — An officer of the NaA^ who travels to testify as a witness for the Government is entitled, under this sec- tion, to his actual and necessary expenses only, notAvithstanding that such officer may have been ordered by his superior officer to travel for that purpose. (19 Comp. Dec, 752, cit- ing 4 Comp. Dec, 147; but see below, "Courts- martial," under "III. Nature of Proceedings." These general statutes regulate the fees for attendance as witnesses before civil courts, and the compensation to Army and Navy officers for attendance as witnesses before such courts must conform to them, whether the attendance is in obedience to a subpoena or to an order from the head of their department. (10 Comp. Dec, 55, citing 4 Comp. Dec, 146, and Dig. Sec. Comp., vol. 2, sec. 1211.) This section is found under the title of "The Judiciary" in the Revised Statutes, and un- doubtedly applies to clerks and officers of the United States who are witnesses before the Federal civil courts. (Comp. Dec. Apr. 14, 1914, file 26254-1476:1.) "The word 'officer' in this section is to re- ceive a liberal construction. It does not im- port an officer as distinguished from a soldier, but any person who is an employee or is in the service of the United States, in however humble a capacity." (16 Op. Atty. Gen., 113, holding that Army officers and enlisted men who appear as witnesses for the Government before any court of the United States are entitled to receive their necessary expenses in going, returning, and attendance on the court, and are not entitled to any mileage or witness fees; see also 15 Op. Atty. Gen., 486; 16 Op. Atty. Gen., 147; 17 Comp. Dec, 584.) Retired oflB.cers. — A retired Army officer who is called to testify before a civil court as a witness for the United States is entitled to lawful fees as a witness and not to actual ex- penses as provided by section 850 of the Re- vised Statutes. (19 Comp. Dec, 966, following 10 Comp. Dec, 51, holding that retired officers are not within the purview of section 850 be- cause not subject to orders to testify as wit- nesses. In this connection, see act of August 22, 1912, 37 Stat., 329, providing that retired offi- cers of the Navy and Marine Corps may, with their consent, be ordered to any active duty at sea or on shore. And see below, "Courts- martial," under " III. Natureof Proceedings.") A Naval Militia member subpoenaed as a witness before a naval court-martial when his organization is not in the service of the United States is in the status of a civilian witness, not in Government employ, and he is entitled to fees and mileage accordingly. (File 26251-10968: 9, Dec 1, 1915; 26276-119, Dec. 22, 1915. See below, "Courts- martial," under "III. Nature of Proceedings.") United States Senators. — The provision in section 850, Revised Statutes, does not apply to Senators of the United States. To fall within its terrns the clerk or officer must have a place of business and be sent away therefrom, indicating very clearly that class of officials who occupy subordinate positions and are sub- ject to the control and direction of their supe- rior officers. It is hardly necessary to add that United States Senators are not of this class. Such witnesses are accordingly entitled to the compensation fixed by section 848, Revised Statutes. (7 Comp. Dec, 764. As to compul- sory attendance of Senators and Representa- tives as witnesses in judicial proceedings, see note to Constitution, Art. I, sec. 6, clause 1.) Federal prisoners. — A person in custody awaiting trial for an alleged offense who at- tended before a United States commissioner as a witness is entitled to the fee provided by law for such attendance. He is not, however, entitled to mileage for at least two reasons: First, the Government necessarily bears the expenses of his transportation, if there are such, from the jail to the place where he testi- fies; second, the jail can not be said to be his place of residence. (6 Comp. Dec, 588.) However, where a person in custody has been convicted of crime, has forfeited his residence, and his time and services belong to the Gov- ernment, which is charged with his care and support while imprisoned in a penitentiary or jail, per diem for attendance and mileage are not allowable. (6 Comp. Dec, 588.) If a convicted person were called upon to testify in a civil suit, the Government would be entitled to charge for and collect, as against the person subpoenaing him as a witness, a per diem on account thereof, as his services laelong to the Government. (6 Comp. Dec, 588.) Temporary employee. — A temporary mail weigher is an employee of the United States, and if said mail weigher is subpoenaed to tes- tify in a United States district court on behalf of the Government, he is entitled to be paid his actual and necessary expenses in addition to his regular compensation as mail weigher, while going to, returning from, and attendance on the court. (18 Comp. Dec, 896.) A person who has been paid $3 for a day's service as bailiff under a United States mar- shal, is not entitled to the statutory fee of $1.50 for his attendance as a witness for the Govern- ment before a United States commissioner on the same day. After adjournment of the court, he was summoned and attended as a witness before the commissioner. However, the per diem allowed him as bailiff covered his time and services as baiUff for an entire day, and the adjournment of the court did not release him from liability to serve for the remainder of the day for which he was paid. (22 Comp. Dec, 126.) Private clerk of Government ofllcial. — "The theory of the statute manifestly is that where the Government is entitled to an officer's time, the diversion of it from his official routine to attend in court as a witness in its behalf shall not entitle him to dual compensation. The court does not overlook the fact that a marshal's clerk is appointed by him and that his com- pensation is conditional and dependent upon 414 The Judiciary. Pt.2. REVISED STATUTES. Sec. 850. the fees and emoluments of the marshal's office * * * ; but nevertheless the service is rendered for the government, the expense is additional to the marshal's compensation, and the money with which the clerk is paid is the money of the Government and would other- wise go into the Treasmy. The marshal, therefore, is not the employer but the appoixit- ing power, and his chief clerk is as much an employee of the Government as is the private secretary of the President." (Duval v. U. S., 23 Ct. CIs., 102; 17 Comp. Dec, 584.) A person emploA'ed by a postmaster, who re- ceives a fixed salary without any allowance for clerk hire, and who himself pays such person as his deputy, is not a "clerk or ofHcer of the United States" within the meaning of this sec- tion, (In re Waller, 49 Fed. Rep., 271.) District of Columbia employee. — Officers and employees of the District of Columbia are not officers or employees of the United States within the meaning of this section; they are accordingly entitled to the fees allowed by law to other witnesses, unless it is a part of their official duty under their appointments to at- tend and testify in proceedings of the character involved. (18' Comp. Dec, 382, citing 17 Comp. Dec, 153.) II. WnXESS FOR THE GoVERXMEXT. No testimony given. — An officer of the Na\y was ordered to "proceed to Norfolk, Va., and on December 27, 1912, confer with the district attorney. Upon the completion of this conference report to the commandant of the navy yard for temporary duty as witness before a court of inquiry at the station under his com- mand." The Auditor for the Navy Depart- ment held that the travel involved was pri- marily performed in order that claimant might testifj' on behalf of the Government in the United States Court for the Eastern District of Virginia. This ruling was reversed by the Comptroller of the Treasury, who decided that there was nothing in the orders in ciuestion to direct the officer to appear as a witness in the United States District Court for the Eastern District of Virginia, and the officer stated that he did not so appear. Accordingly, held that the officer was entitled to mileage for the travel in ciuestion, and that section 850, Ile\-ised Stat- utes, was not applicable thereto. (Comp. Dec. Apr. 14, 1914, file 26254-1476:1; see below, "Courts-martial," under "III. Nature of Pro- ceedings.") An officer of the Navy ordered to perform travel in order that he might be present to testify, if needed, in a suit to which the Gov- ernment was not a party, but in which it had sufficient interest to make it nece.^sary, or at least advisable, in the opinion of the Secretary of the Na^y , for the officer to be present, could not be considered as a witness for the Govern- nient within the meaning of section 850, Re- vised Statutes. In performing the travel in question appellant should be regarded as travel- ing on public business under orders of the Sec- retary of the Na-vy, and entitled to mileage accordinglv. (Comp. Dec, July 28, 1915, 173 S. and A. Memo., 3729.) Identifying party under charges. — A clerk in the Na\-y Department who performed travel to New York City, at the request of the police department of the District of Columbia, for the purpose of identif^-ing and securing the arrest of a party wanted for trial in the District of Columbia upon charges of larceny and big- amy, was not in the status of a witness for the Government during her absence from duty for the purpose stated. (File 4488-61, June 24, 1911.) Witness for private party. — \\'hen sub- poenaed by a private party a department clerk may demand and accept witness fees. (21 Op. Atty. Gen., 263.) A naval officer giving expert testimony in a suit between private parties may receive com- pensation therefor at the usual rates, in accoid- ance with his agreement with the party for whom he appeared. (File 1981-1900; see" also file 6053, Oct. 30, 1906; and file 26276-125, Nov. 22, 1915.) An employee of the Navy Department v>-ho attends com-t as a witness otherwise than as a witness for the Government is not entitled to draw salary during the period absent from work, unless such absence is charged to his annual leave. (File 6036-2. Apr. 5, 1907.) Witness against the Government. — Wliere a naval constructor appeared as a wit- ness in behalf of the defendant, the complain- ant being the United States, he was informed that there appeared from the facts stated to be no reason why he should not accept "ordinary mileage and attendance fees." (File 4565-4, Oct. 23, 1906.) Courts-martial. — This section clearly recog- nizes the fact that persoios in the employ of the Government may be called upon to testify before the courts in matters not necessarily connected with the service for which they are paid, and that their salaries shall continue while so absent from their regular duties. Since no distinction is made in miLitar\' courts be- tween payment of witnesses, whether for or against the Government, it must be held that they are equally entitled to their salaries while in attendance before a military' court, if they were acting under proper orders, although they appeared as witnesses for the accused. Their attendance was reciuired at this court-martial by proper subpoena issued by the judge advo- cate of the court. It was requested by the Secretary of War in a letter addressed to the Secretary- of State. The Secretary of State ordered them, through the proper channels, to attend the trial and at the same time directed that they be retained in the employ of the Government and receive their compensation during their attendance. Accordingly, held that they were entitled to their salaries until the time they were discharged from attendance upon the court-martial, and that the same should be paid from the appropriations for their regular duties with the Nicaragua Canal Com- mission. (5 Comp. Dec, 797.) III. Nature of Proceedixgs. Coxirts-martial. — Civilian employees of the United States subpoenaed on behalf of the Gov- ernment as witnesses before naval courts are not entitled to mileage or per diem as witnesses, but to their regular salaries and actual and necessary expenses only, their rights being con- 415 Sec. 860. Pt.2. REVISED STATUTES. The Judiciary. trolled by section 850 of the Revised Statutes. (14 Comp. Dec, 143; see also, 1 Comp. Dec, 79. noted under sec 848, R. S.) A per diem employee of a navy yard is en- titled to his actual and necessary expenses while attending under orders as a v-itness before a court of inquiry and while going to and re- turning from the court. (8 Comp. Dec, 211.) This section does not apply to military olli- cers when witnes.ses before military courts; it appears under the title of vThe .Judiciary," in the Re\dsed Statutes, and undoubtedly ap- plies to clerks and ofliccrs of the I'nited States when witne&''es before the Federal civil courts; accordingly, held that an officer of the Na^'y is entitled to mileage for travel ]ierfornied under orders for the purpose of appearing as a witness before a naval court of inquiry. (Comp. Dec. Apr. 14, 1914, file 20254-1470:1; see above, "No testimony given," under "II. Witness for the Government.") A contract surgeon in the Army who is di- rected by special orders to attend as a witness before a general court-martial by which he had been duly summoned is not entitled to reim- bursement of expenses as a civilian employee of the Government, but is limited to the mile- age allowance payable to commi.s.sioned officers traveling under orders. (9 Comp. Dec, 461.) Section 850, Re^'ised Statutes, has never, so far as I am aware, been applied in fixing the com- pensation of officers of the Army and Navy on the active List for attendance as witnesses be- fore general courts-martial, when in attendance in obedience to orders: and I know of no reason why it should apply in the case of a retired offi- cer if it does not apply to an officer on the active list. The retired officer has no place of business to be sent away from, within the meaning of that section, and he is not an officer subject to be ordered to such duty, and is not, therefore, within the purview of the said section. (10 Comp. Dec, 55, citing 7 Comp. Dec, 764.) A retired officer of the Army is not entitled to commutation of quarters while in attendance as a witness before a general court-martial, but he is entitled to the per diem compensation and mileage provided for civilian witnesses not in the employ of the Government. (10 Comp. Dec, 51.) A summons to a retired officer of the Navy to attend as a witness before a general court-mar- tial does not place him on active duty, and he is not, therefore, entitled to the difference be- tween active duty and retired pay in conse- quence thereof. (5 Comp. Dec, 244. At the time this decision was rendered retired officers of the Naw could not be ordered to active duty except in time of war; accordingly, it had been held by the accounting officers (Dig. Sec Comp. Dec, vol. 2, sec. 1211) that in time of peace officers on the retired list of the Navj'- while attending upon courts-martial as wit- nesses were not entitled to active-duty pay. This case arose in time of war, but it was held that the effect of an ordinary summons to at- tend as a witness before a court-martial in time of war, even though approved by the Secretary of the Navy, did not place the officer in any different position than he would have occupied had the summons been Lssued and the travel performed in time of peace. An order which places a retired naval officer upon duty in time of war should clearly express such intention, and no such intention can properly be imputed in the case of an ordinary summons to attend as a witneas, approved by the Secretary of the Navy after it is issued. The existing law, act of Aug. 22, 1912, 37 Stat., 329, provides that retired oflicers of the Na\'y and Marine Cori)8 mav, with their consent, be ordered to any active duty at sea or on shore.) A member of the Naval Militia subpoenaed as a witness before a naval court-martial is not thereby called into the service of the United States under the provisions of the Constitution (Art. I, sec 8, clause 15) and the Naval ]\Iilitia Act of Feb. 10, 1914, sec. 3 (38 Stat., 284). He is not, therefore, by virtue of such subpoena entitled to the pay and allowances provided for the Naval Militia when called into the serv- ice of the United States. (File 26270-119:3, Jan. 20, 1910.) See cases noted above, under "I. "WTiat Per- sons Included." In courts-martial the United States pays not only its own witnesses but the witnesses of the accused; accordingly, while section 850 refers directly to witnesses for the Government, the fact that all witnesses before military courts are paid by the Government bring the latter within the spirit of this section. (5 Comp. Dec, 802. See note to Constitution, sixth amendment, as to compulsory process for ob- taining -witnesses in behalf of the accused before naval courts-martial.) District of Columbia coiu'ts. — Salaried employees of the Government are not entitled, under the provisions of section 850 of the Revised Statutes, to witness fees for attendance as witnesses on behalf of the United States before a United States grand jury in the District of Columbia. Accordingly, held that a clerk in the Treasury Department at Washington, D. C, is not legally entitled to witness fees, either per diem or mileage, for her attendance before the United States grand jury, Supreme Court of the District of Columbia, as a witness on behalf of the United States. (17 Comp. Dec, 282.) Salaried officers or employees of the United States who attend before the Supreme Court of the District of Columbia as witnesses for tlie Government are not entitled to the compensa- tion proAdded by law for witnesses who are not such officers or employees. (18 Comp. Dec, 382, citing 17 Comp. Dec, 282; see above, "Identifying party under charges," under "II. Witness for the Government.") State courts. — The actual expenses of officers of the Army in attending, by authority of the Secretary of War, upon a State court as witnesses for the United States in a case in which the United States is a party, may be paid from the approj)riation for contingent expenses of the War Department. (12 Comp. Dec, 649; see above, "No testimony given," under "II. Witness for the Government.") Extradition proceedings before commis- sioner. — An employee of the Government is not entitled to mileage and fees, but only to actual and necessary expenses, for attendance as a witness before a United States commissioner in extradition proceedings instituted in the name of the United States. (llComp. Dec, 605.) 416 The Judiciary. Pt.2. RE VISED STAT UTES . Sec. 850. Justice of the peace.— This section applies to payment of -witnesses in attendance upon a preliminary hearing before a justice of the peace. (16 Comp. Dec, 92.) Civil Service Commission. — A civil-service employee of the War Department on duty in the ordnance office at Frankford Arsenal, Philadel- phia, Pa., who appears as a witness before the Civil Service Commission in obedience to a duly authorized summons of the commission under Civil Service Rule XIV approved by the President, should, while going to, attending on, and returning from the commission be treated as in a duty status, and as in the performance of duty under his employment, and should be paid accordingly from the appropriation for the ordnance service. (18 Comp. Dec, 135.) IV. Character of Expenses Allowed. Employment of a substitute. — The neces- sary expenses of travel, board, and lodging of salaried employees of the Government attend- ing a United States court or before a United States commissioner as witnesses on behalf of the Government, are usually payable, under section 850 of the Revised Statutes, from the appropriation for "Fees of witnesses. United States courts"; but there is no provision for the payment of the hire of a substitute whom it may be necessary to engage by reason of the salaried employee's absence. (16 Comp. Dec, 630.) Section 850, Revised Statutes, does not authorize the payment to a consul of an amount paid by him as compensation to his vice consul while in charge of the consulate during the absence of the consul as such witness. (9 Comp Dec, 521.) This section provides for the ordinary and usual expenses of' the witness, and does not include the loss of salary because of such absence. The items of expense of such a wit- ness are his necessary traveling expenses in going and retiuning, and his necessary expenses while in attendance upon the court. (9 Comp. Dec, 521.) Leave of absence. — A per diem employee of a navy yard is entitled to his compensation as such per diem employee, and actual expenses while attending imder orders a court of inc^uiry as a witness, and while going to and returning from the court; and the time he is so absent from his emploATuent is not to be deducted from the time for which he may be granted leave of absence. (8 Comp. Dec, 211.) Employees of the Navy Department attend- ing as witnesses for the Government, as to leave to which they may be entitled by law, are in the same status as if they had been actually at work at their regular place of work and had not been absent as such witnesses. (17 Comp. Dec, 584.) Employees of the Navy Department who at- tend court as mtnesses otherwise than as wit- nesses for the Government are not entitled to draw salary during the period absent from work unless charged to annual leave. (File 6036-2, Apr. 5, 1907. But see 5 Comp. Dec, 797, noted below, as to witnesses for accused in court- martial cases.) An employee of the Na\-y Department ab- sent from duty at the request of the police department of the District of Columbia, for the purpose of identifying and securing the arrest of a person in New York wanted for trial in the District for larceny and bigamy, is not within the pur\dew of the decision of the Comptroller which treats employees of the Governrnent as in a duty status when in attendance as witnesses for the Government in Federal courts. The absence from duty in such case should, there- fore, be charged to the employee's leave. (File 4488-61, June 23, 1911.) An employee of the War Department should be treated as in a duty status while going to, attending on, and retmrning from an inquiry by the Civil Service Commission in obedience to a subpoena issued by the commission. (18 Comp. Dec, 135.) CiA-ilian employees of the State Department appearing before an Army court-martial, in obedience to a subpoena issued by the judge advocate of the court and proper orders issued by the Secretary of State upon request of the Secretary of War, should be treated as in a duty status, notwithstanding that they were subpoenaed as witnesses against the Govern- ment and for the accused. (5 Comp. Dec, 797.) While attending as a witness for the Govern- ment in a United States district court, an em- ployee was performing a service for and on be- half of the Government other than the service required under his appointment, and such compulsory absence would not have the effect of relieving him of his pay status for the reason that during that time he is to be regarded as in the performance of duty under his employ- ment and therefore should be paid his regular compensation in addition to liis actual and necessary expenses. (18 Comp. Dec, 896.) Witness outside jurisdiction. — ^Where an office deputy marshal attends as a witness before a United States commissioner in a district other than his own, the allowance of his expenses of subsistence is a matter within the discretion of the commissioner, unlimited by the statutory maximum fixed for deputy marshals. (19 Comp. Dec. 91.) A deputy collector of internal revenue is enti- tled to all necessary and lawful expenses in- ciu-red in attending a hearing before a United States commissioner pursuant to the subpoena of said commissioner, although the hearing is held in a district other than that of the deputy collector's residence. (20 Comp. Dec, 195.) It has been held that a witness from another district attending before a commissioner upon a subpoena issued by the commissioner, is not entitled to the mileage provided by section 848, Revised Statutes, for tra^'el outside of the com- missioner's district. (9 Comp. Dec, 121.) This ruling does not apply to ofiicers or em- ployees of the Government whose official duty it is to testify in behalf of the Government and who are bound to attend for that purpose whether in the district in which they_ reside or elsewhere. Such officer or employee is enti- tled to his necessary expenses in going, return- ing, and attending, when sent away from hia place of business as a witness for the Govern- ment. (20 Comp. Dec, 195.) See, in this connection, note to section 848, Revised Statutes, relative to expense of bring- ing witnesses within jurisdiction of the court. 41T Sec. 850. Pt.2. REVISED STATUTES. The Judiciary. ""■. Appropriation from Which Paid. Judiciary appropriation. — The necessary expenses of travel, board, and lodging of sala- ried employees of the Government attending a United States court or before a United States commissioner as witnesses on behalf of the Gov- ernment are usually payable, under section 850, Revised Statutes, from the appropriation for "Fees of w-itnesses. United States courts." (leComp.Dec, 630.) In 12 Comp. Dec, 391, it was held that the expenses of officers of the United States in- curred in going, returning, and in attendance on courts when sent away from the usual place of the performance of their duties as witnesses for the Government are payable from the ap- propriate fund of the dejiartment from which they are sent, and not from the judicial appro- priation for fees of witnesses. However, this decision is published with a footnote, stating that since it was rendered it had been discoA-- ered that the decision therein relied upon had been overruled by the Supreme Court of the United States. Hence, the necessary expenses of a clerk sent away as a witnees for the Gov- ernment should be audited by the court, taxed as witness fees, and paid in full from the proper judicial appropriation. The auditing contemplated by section 850 must be done, primarily, in the court in which the case is pending and where it can best be determined what expenses have been neces- sarily incurred by the witness. It was not intended by section 850 to deny to the Govern- ment the right, when successful in a suit, to have even the necessary expenses of witnesses of the class described in that section included in the judgment for costs, nor did the United States intend to remit to its defeated adver- sary not only witness fees for per diem and mileage, but the necessarj' expenses of wit- nesses who happened to be in its employment and whom it sent away from their place of business to testify in its behalf. As a person of that class receives while absent his stipu- lated salary and is paid in that way for his time, it is not deemed just that he should also receive mileage and per diem; but, instead thereof, he is allowed his necessary' expenses, which, being audited by or under the direc- tion of the court upon which he attends as a witness, he is entitled to have paid to him, and the Government, being under an obliga- tion to pay them, is entitled to have the amount so audited included in its bill of costs and in any judgments rendered in its favor. In other words, when the Government is successful in a suit, the "necessary expenses" of its wit- nesses of the class described in section 850 take the place in its bill of costs of the per diem and mileage which, but for that section, would have been taxed and allowed in its favor. (U. S. v. Sanborn, 135 U. S., 271.) Necessary expenses of soldiers as witnesses for the Government allowed under this section may be paid by marshals upon proper proof thereof. (16 Op. Atty. Gen., 147.) [Enlisted men detained by a United States marshal as witnesses, and by him paid $1.70 per day, are not entitled to rations during the period they were absent from their ship. (File 1098-94.)] Where a tiustee in bankruptcy is called to testif)' as an expert witness in a criminal prose- cution, growing out of transactions in connec- tion with the bankrupt estate, the act of August 24, 1912 (37 Stat., 402), prohibits the payment to him of any compensation whatever for serv- ices as such expert from the appropriation "Miscellaneous expenses, United States courts, 1913." (10 Comp. Dec, 395.) Other appropriations available. — "At- tention is invited to the fact that while section 850, Revised Statutes, allows a clerk or ofDcerhia actual expenses when sent away from his place of business, it does not provide that such ex- penses shall be paid from the judiciary appro- priations. On the contrary, the inference is that such expenses will be paid from whatever appropriation is applicable." (5 Comp. Dec, 2.) Naval appropriation. — The claim of an enlisted man of the Army for reimbursement of expenses incurred in complying with a sub- poena issued by a naval court-martial is a proper charge against the naval appropriation, "Pay, miscellaneous." (File 26276-14.) "Expenses of courts-martial, prisoners and prisons, and courts of inquiry, boards of inspec- tion, examining boaids, with clerks' and wit- nesses' fees, and traveling expenses and costs," are appropriated for each year in the naval appropriation act under the heading, "Pay, miscellaneous." (See, for example, naval appropriation act ^Mar. 3, 1915, 38 Stat., 929.) Appropriation for department where witness is employed. — If an officer of the Government attends upon the United States courts, or before United States commissioners, in his official capacity, in connection with the examination or trial of persons charged with violations of certain laws relating to the work of his department, and it is his duty under the laws or regulations governing his appointment, to aid in the prevention, detection, suppres- sion, punishment, or prosecution of such vio- lators or offenses, then his proper actual travel- ing expenses, incun'ed by reason of his attend- ance upon euch examination or trial , are prop- erly chargeable to the appropriation out of which his ordinary traveling expenses are usu- ally paid, notwithstanding the fact that he may be called and testify in the case as a witness; but when a salaried government employee is sub- poenaed as a witness and he so attends other- wise than as above stated, he is entitled to re- imbursement of his actual expenses by the marshal from the appropriation "Fees of wit- nesses. United States courts." (15 Comp. Dec, 298.) As early as January 4, 1879, the Attorney General issued a circular, section 2 of which is as follows; "2. That section 850 is regarded by this department as not extending to officers or employees of the government for whose neces- sary expenses while traveling to and from court, and also during their attendance thereon, provision is otherwise made by Congress. Within this category', it is believed, come the special agents of the Post-Office Department, the special agents of the Pension Office, the special agents of the Treasury Department, In- ternal Revenue agents, and Secret Ser\-ice operatives under the control of the Treasury Department, [see below, "Special lawsgovem- 418 The Judiciary. Pt. 2. REVISED STATUTES. Sec. 850. ins: use of appropriations"] especially when called as 'sv'itness for the Government in those cases wherein they are employed by direction of their respective bureaus or departments. These agents and operatives (in addition to certain salaries or per diem paid them as com- pensation for their servdces) are understood to receive allowances for traveling and other inci- dental expenses, incurred while in the dis- charge of their duties, out of appropriations specially providing for these objects. Sec- tion 850 does not comprehend expenses for which Congress has thus specially provided. District attorneys and marshals are instructed, in dealing with the claims of witnesses under section 850, to act in conformity hereto. They are directed, before allowing or paying under that section any officer or employee of the United F tatea who has been subpoenaed as a wit- ness for the Government his necessary expenses for travel and attendance on court, to require from the claimant a declai'ation, to be inserted in and made a part of the affidavit to his ac- count, that he has not received, and is not enti- tled by the regulations of the bureau or depart- ment in whose service he is or was employed, to claim or receive, and will not claim, from such bureau or department, any allowance what- ever for those expenses." (5 Comp. Dec, 2.) The Comptroller of the Treasury concurs in the opinion of the Attorney General that sec- tion 850, Revised Statutes, "does not compre- hend expenses for which Congress has thus specially provided." (5 Comp. Dec, 2, affirm- ing 4 Comp. Dec, 649.) The actual expenses of a salaried officer of the Government who testifies as a witness for the Government may be paid in either of two ways, according to the nature of his emplojanent and the character of the testimony given. (18 Comp. Dec, 992, citing 16 Comp. Dec, 411.) In order to relieve tiie appropriation, "Fees of witnesses, United States courts," from the payment of the expenses of officers, employees or agents of the Government while in attend- ance as witnesses, two things must concur : First, it must be the actual duty of such officers, em- ployees or agents who are called as witnesses beforea commissioner, grand jury or court, to investigate the facts upon which the proceed- ings are based, and to appear in their official capacity to testify as to the facts so acquired ; and, second, there must be an appropriation controlled by that particular department of the Government, under which such officers, em- ployees or agents are serving, applicable to the payment of such expenses. (16 Comp. Dec, 411.) Where Government employees are required to attend the sessions of a court in the discharge of their ofticial duties, testimony given by them is incidental to such official attendance, whether subpoenaed as witnesses or not, and their expenses incurred thereby are not payable from the appropriation for "Fees of witnesses," but are a charge against the proper appropria- tion for their department. (14 Comp. Dec, 80.) Where it is the duty of an officer, either under law or rule or regulation, to aid in the detection, prosecution, and punishment of a certain class of offenders, he is not entitled to his expenses from the appropriation for witnesses, his attend- ance being incidental to the performance of his duties and the expenses thereof being charge- able to the appropriation of his department. (14 Comp._ Dec, 113; 14 Comp. Dec, 80.) Where inspectors who are employed under appropriations to carry into effect the pure food and drugs act attend as witnesses for the prose- cution of offenses under said act, based on facta certified to the district attorney by the Secre- tary of Agriculture, they should be considered as attending in their official capacity unless they are called to give evidence of facts not found by them in the discharge of their duties as inspectors, and while in attendance in their official capacity their actual and necessary traveling expenses should be paid from appro- priations under the Department of Agriculture. (15 Comp. Dec, 757.) The actual, necessary expenses of customs officers, while attending as witnesses before a United States commissioner, grand jury, or district court, to testify on behalf of the Govern- ment as a result of knowledge gained by them in the discharge of their official duties, are pay- able from the appropriation for ' ' Collecting the revenue from customs." It is the duty of the customs officer in the cases now under con- sideration to attend before the commissioner or upon the court, and when so attending he is not present as an ordinary witness (in obedience to a subpoena and for no other reason), but is present in his capacity as a customs officer to aid in the detection, prevention, and suppres- sion of violations of the customs laws and in the discharge of duties for which he is ap- pointed. His presence in the character of a witness in a case wherein he made the seizure and arrest must be regarded as incidental to the real j)urpose for which he is present, and expenses incurred in attending such hearing or trial should be considered as incurred in his official capacity as a customs officer and in the interests of the customs service; accordingly, such expenses, actually and necessarily in- curred under the proper departmental regula- tions, are payable from the appropriation out of which his other expenses incurred in the line of his duty are paid. (15 Comp. Dec, 154.) The attendance of a naturalization examiner before a United States commissioner in a hear- ing of a case upon a warrant sworn out by him for a violation of the naturalization laws, and his subsequent attendance before a grand jury relative to the same case for the purpose of hav- ing the defendant indicted for such violation, are a part of his official duties and whether he was subpoenaed or not testimony given by him at such hearing or before the grand jury, as a re- sult of knowledge gained by him in the dis- charge of his official duties, was only incidental thereto and his expenses incurred thereby, witlun the limits of his appointment, are pay- able from the a^jpropriation for ' ' Pay of assistant attorneys in naturalization cases," and not from the judicial appropriation for fees of wit- nesses. (14 Comp. Dec, 516.) The law makes it a part of the duty of a special examiner to aid in the prosecution of persons violating the pension laws. He there- fore appears as a witness in such cases as an official dutj'. Accordingly, held that the ap- 419 Sec. 861. rt.2. REVISED STATUTES. The Judiciary. propriation for cxamiiiors in the Bureau of rensions is excliisivoly applicable to the ex- penses of such exaniinors for attendance upon court as witnesses, there bein^ no provision in that ajiprojiriatiou that no part thereof shall be used in dcfrayino: such expenses, such as ap- pears in some ajjprojtriations for other depart- ments. (5 C'onip. Dec, 2.) In the matter of the appropriations chargeable with the traveling expenses incurred by salaried employees of the (.iovernment by reason of their attendance upon a trial or examination before a United States couit or a United States commissioner, the Comptroller of the Treasury' can not undertake to determine the exact status of such em]iloyees and the nature of the trial or examination in each and every one of the cases which arise. (15 Comp. Dec, 298.) The payment of expenses of a witness in the Government service should be governed by the rule laid down in 15 Comp. Dec, 298 (above noted). WTiether said witness attended in his official capacity as an officer, or as an ordinary witness, is unknown to the comptroller, and it is the duty of the marshal to develop the facts and apply the rule to sucji facts when definitely ascertained. (16 Comp. Dec, 92.) Expenditures incurred by a departmental clerk in obeying a subpoena issued by a district court of the United States are properly charge- able to the appropriation '"Fees of witnesses. United States courts," when it is shown that said clerk was summoned for no other purpose than that of an ordinary witness. The subpoena in this case was addressed to the Chief of the Division of Naturalization, Department of Commerce and Labor, Washington, D. C, and was issued for the purpose of securing the pro- duction before the grand jury of a certain "duplicate declaration of intention" on file in the department; a clerk of class 4 in the depart- ment at ^\'ashington was directed to attend in answer to this subpoena, which he did and in so doing incurred the expenses in question. It does not appear that said clerk officially investigated or found out and developed the facts upon which the case before the giand jury was ])redicated, or that it was his ollicial duty untler the law or regulations to aid in the prosecution of the case. In fact, there is nothing to show that this departmental clerk attended otherwise than in the character of an ordinarv witness under section 850 Revised Statutes. "(16 Comp. Dec, 672.) Special laws governing use of appropria- tions. — The principle announced in previous decisions (4 Comp. Dec, 649; 5 Comp. Dec, 2; 14 Comp. Dec, 80; 14 Comp. Dec, 516; 15 Comp. Dec, 154; 15 Comp. Dec, 298, ail above noted) is correct and should be adhered to in determining the particular appropriation chargeable with the expenses of employees in attendance upon the United States courts whose duties under their appointments or under the law involve aiding in the detection, prevention, prosecution or suppression of viola- tions of certain laws, except in cases where Congress has seen fit to exempt any class of employees from the operation of such rule by special legislation. (15 Comp. Dec, 594.) By act of May 22, 1908 (35 Stat., 207) an ex- emption was made with reference to officers of the Internal Revenue Service, and similar provisions have been enacted with reterence to Secret Service employees. Accordingly, held that, "in view of the provisions of the act of May 22, 1908, the actual and necessary expenses of a deputy collector of internal revenue, under section 850 of the Revised Statutes, incurred by reason of his attendance as a witness on behalf of the United States before the grand jury in obedience to a subpoena issued by the United States district court are payable from the appropriation "Fees of witnesses, United States courts." (15 Comp. Dec, 594; followed, 16 Comp. Dec, 838, and 20 Comp. Dec, 195, with reference to expenses of attendance as witnesses before United States commissioners in obedience to subpoenas.) Sec. 851. [Witnesses transported on Government or private vessel.] There shall be paid to each seaman or other person who is sent to the United States from any foreign port, station, sea, or ocean, by any United States minister, charge d'affaires, consul, captain, or commander, to give testimony in any criminal case depending in any court of the United States, such compensation, exclusive of subsistence and transportation, as such court may adjudge to be proper, not exceeding one dollar for each day necessarily employed in such voyage, and in arriving at the place of examination or trial. In fLxing such compensa- tion, the court shall take into consideration the condition of said seaman or witness, and whether his voyage has been broken up, to his injury, by his being sent to the United States. Wlien such seaman or person is transported in an armed vessel of the United States no charge for subsistence or transportation shall be allowed. When he is transported in any other vessel, the compensation for his trans- portation and subsistence, not exceeding in any case fifty cents a day, may be fixed by the court, and sliall be paid to the captain of said vessel accordingly. — (26 Feb., 1853, c. SO, s. 3, v. 10, p. 168.) 420 CHAPTER SEVENTEEN. EVIDENCE. Sec. Sec. 859. Evidence in criminal proceedings. 879. 8G8. Depositions for use in Federal coui-ts. 881. 869. Compelling production of records before commissioner appointed to take deposi- 882. tions. 883. 870. Fees of witness before commissioner to be paid in advance. 886. 871. Depositions for use in State com-ts. 887. 872. Depositions when no commission issued. 888. 873. Manner of taking and transmitting depo- 895. eitions. 896. 874. Witness fees allowed for giving depositions . 905 . 877. Witnesses; form of subpoena. 906. Imprisonment or recognizance of witnesses. Confinement of witnesses at any time to insure appearance. Copies of department records and papers. Copies of records in office of Solicitor of Treasury. Transcripts from records of Treasury. Evidence in embezzlement cases. Copies of records in Returns Office. Extracts from Journals of Congress. Copies of records in consular offices. Authentication of State laws and records. Proof of State records other than judicial. Sec. 859. [Evidence in criminal proceedings.] No testimony given by a witness before either House, or before any committee of either House of Congress, shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjmy committed in giving such testimony. But an official paper or record produced by him is not within the said privilege. [See § 103.]— (24 Jan., 1862, c. 11, v. 12, p. 333. 24 Jan., 1857, c. 19, s. 2, V. 11, p. 156.) Accused shall, at his own request but not other- wise, be a competent witness in proceed- ings before coiuts-martial, courts of in- quiry, and civil courts of the United States. His failure to make such request shall not create anv presumption against him. (Act Mar. 16, 1878, 20 Stat., 30.) Admissibility of evidence in Federal criminal cases is to be determined by the law of the State where the court is held, as it existed when the courts of the IJnited States were established by the judiciary act of 1789. (U. S. v. Reid, 12 How., .361; Fitter i;. U. S., 258 Fed. Rep., 576.) Court of inquiry records admissible in evidence before naval courts-martial in cases not capital nor extending to dismissal of com- missioned or warrant officer, provided oral testimony can not be obtained. (Sec. 1624, R. S., art. 60.) Courts-martial— see section 1624, Revised Sta- tutes, articles 29, 40-42 and 60. Depositions may be used in evidence before naval courts in cases not capital nor ex- tending to imprisonment for more than one year. (Act Feb. 16, 1909, sec. 16, 35 Stat., 622.) Handwriting may be proved by comparison with any admitted or proved handwriting of the party which may be offered in evi- dence. (Act Feb. 26, 1913, 37 Stat., 683.) Husband or wife of accused shall be competent witness in prosecutions for bigamy, polyg- amy, or unlawful cohabitation, but shall not be compelled to testify, nor shall such ^\itness be permitted to testify as to any confidential communication. (Act Mar. 3, 1887,_ sec. 1, 24 Stat., 635. In other cases wife is not competent to testify for or against husband in United States coiirts, except where he is charged with personal injury to her. See C. M. O. 31, June 12, 1914; C. M. O. 22, 1916, p. 8; compare Fitter v. U. S., 258 Fed. Rep., 576.) Incriminating or degrading testimony — See note to Constitution, fifth amendment. Possession of goods imported contrary to law sufficient evidence to sustain conviction unless satisfactorily explained. (Sec. 3082, R.S.) Possession of opium imported contrary to law sufficient e\ddence to sustain conviction unless satisfactorily explained. (Act Feb. 9, 1909, sec. 2, 35 Stat., 614.) Sec. 868. [Deposition for use in Federal courts.] When a commission is issued by any court of the United States for taking the testimony of a witness named therein at any place within any district or Territory, the clerk of any court of the United States for such district or Territory shall, on the application of either party to the suit, or of his agent, issue a subpoena for such witness, 421 Sec. 868. PL 2. REVISED STATUTES. The Judiciary. cominaiuling liim to appear and testify before the commissioner named in the commission, at a time and place stated in the subpoena; and if any witness, after being duly served with such subpoena, refuses or neglects to appear, or, after appearing, refuses to testify, not being privileged from giving testimony, and such refusal or neglect is proven to the satisfaction of any judge of the court whose clerk issues such subpoena, such judge may proceed to enforce obedience to the process, or punish the disobedience, as any com't of the United States may proceed in case of disobedience to process of subpoena to testify issued by such court. — (24 Jan., 1827, c. 4, s, 1, v. 4, p. 197; York Co. v. Central R. R., 3 Wall, 113.) Depositions for use before naval courts are authorized by actof February 16, 1909, sec- tion 16 (35 Stat., 622). Depositions for use before departments in con- nection with pending claims are authorized by section 184, Revised Statutes. Deposition.s for use in the Court of Claims are authorized by the Judicial Code, act of March 3, 1911, sections 163, 168-171 (36 Stat., 1140, 1141). Depositions in ci\il cases, without the previous issuance of a commission by the court in which pending, are authorized by sections 863, 864, and 865, Revised Statutes. Depositions, taken in mode prescribed by State laws, for use in Federal courts, are author- ized by act of March 9, 1892 (27 Stat., 7). Depositions for use in Federal courts, upon the previous issuance of a commission, are authorized by sections 866-868, Revised Statutes. Depositions for use in State courts are author- ized by sections 871-874, Revised Statutes. Notaries public of the States, Territories, and District of Columbia were authorized to take depositions, by act of August 15, 1876 (19 Stat., 206). Heads of departments, — See note to sec- tion 871, Revised Statutes, as to duty of heads of departments to testify or furnish depositions. Assistant to head of department re- quired to appear and testify before commis- sioner appointed to take his deposition. — In habeas corpus proceedings instituted by a Chi- naman in the United States Court for the West- ern District of Washington it was contended by petitioner that proceedings for his deportation were invalid for the reason that his appeal to the Secretary of Labor was heard and disposed of by a subordinate officer of the Department of Labor, who signed his action thereon as Acting Secretary, whereas such officer had been author- ized to perform the duties of the Secretary, under section 179, Re\dsed Statutes, only when the Secretary and Assistant Secretary were both absent from the department, and at the time in question both the Secretary and As- sistant Secretary were present at their offices. A commission was issued by the court to take the deposition of the Assistant Secretary of Labor before a commissioner in the District of Columbia. A subpopna was duly issued by the Supreme Court of the District of Columbia, re- quiring the Assistant Secretary to appear and testify before the said commissioner. The Assistant Secretary appeared, but declined to answer the interrogatories or cross- interroga- tories propounded, on the ground that each question "relates to the internal administration of the department and I regard it as calling for an answer that might be prejudicial to the pub- lic interest. For this reason I decUne to answer until instructed otherwise by the Secretary of Labor." The first and material question was: "Were you on duty at the Department of Labor on each of the following dates: September 24, 1914, September 25, 1914, and September 26, 1914? " A rule was issued to the Assistant Sec- retary by the Supreme Court of the District of Columbia, requiring him to show cause why he should not answer the questions propounded. In his return the Assistant Secretary stated, in part, that he had been instructed by the Sec- retary of Labor "that the disclosures sought to be obtained by the interrogatories propounded would be prejudicial to the public interest," and that "he was advised by the Solicitor of the Department of Justice for the Department of Labor, as a matter of law, that he was privileged to decline to answer the said questions pursuant to such instructions and for the reasons stated in said declination. ' ' It was thereupon ordered by the court that the Assistant Secretary appear before the commissioner and make full and true response to the question above quoted. In the opinion of the court it was stated in part: " It will therefore be seen that the question propounded to the witness Post, which he decUned to answer, goes to the jurisdiction of the officer who assumed to act as Secretary of Labor in signing the mandate, or order of exclusion, under which Ching Hing is detained. "As stated by Judge Dooling of the United States District Court for the Northern District of California in the case of In re Tsuie Shoe et al., on October 23, 1914: 'The appellants were by law entitled to appeal to the Secretary of Labor, and entitled to have their appeal heard and determined by him except as above stated, and the determination of their appeal by another not authorized is neither a fair hearing, nor due process of law.' "Briefly stated , the question asked respondent was whether or not he was on duty in the de- partment on three named days. Upon his answer to an extent, depends the liberty of Ching Hing. He declined to answer because the answer 'might be prejudicial to the public interest.' In exactly what manner it might be 'prejudicial to the public interest' for any official to testify as to whether he was, at a given time, performing the duties charged 422 The Judiciary. Pt.2. RE VISED STAT UTES . Sec. 869. upon him by law and for which he was being paid at public expense, when the fact becomes important in a judicial investigation affecting the hberty of an individual — even a China- -is not apparent on this record. In the man- refuse to permit an investigation as to the fact of such jurisdiction. If the Department of Labor has acted without authority, and an individual has been denied his hberty as a result of such action, it is most extraordinary for the department to assert that pubhc policy requires a concealment of the truth in regard to such lack of authority. Indeed, if the department had authority to act, and that authority were questioned in a proper judicial proceeding, by a court having jurisdiction of the matter, it would seem reasonable that the respect due by one coordinate branch of the Government to another would discountenance a concealment of the facts upon which the department acted." (In the matter of Ching Hing, Supreme Court of the District of Co- lumbia, decided June 10, 1915, file 26276-127; for other cases, see note to sees. 161, 417, and 418, R. S., and Constitution, Art. II, sec. 1, clause 1. See also Ex parte Ching Hing, 224 Fed. Rep., 261, in which the commis- sion to take testimony in the case above quoted was recalled by the United States Court for the Western District of Washington, for the reason that after such commission was issued the Secretary of Labor personally re- \T.ewed and affirmed the decision of the "Act- ing Secretary" in the same proceedings; af- firmed Ching Hing v. White, 234 Fed." Rep., 616.) instant case, upon the record before the court, it is impossible to find any prejudice to the public interest in requiring an answer to the question propounded. "This case is differentiated from Boske v. Comingore (177 U. S., 459), where the infor- mation sought of the collector of internal rev- enue was prohibited by a regulation of the Secretary of the Treasury made under authority of law and for the purpose of making more efficient the Internal Revenue Service, and also from such cases as Gody v. Pentland (85 Pa., 22), in which public officials are pro- tected in their refusal to produce records on grounds of public policy. Here the question of the public policy involved in the answer sought is as capable of being decided by the court as by the executive official, because apparently all the information sin-rounding the alleged privilege of respondent is before the court. And upon this information, the court is of the opinion that it is the duty of respondent to answer the qviestion put to him. An analo- gous situation might be supposed if the judg- ment of a com't against a citizen was questioned because of the lack of jmisdiction in the court to render the judgment, and the court should Sec. 869. [Compelling production of records before commissioner appointed to take deposition.] When either party in such suit appUes to any judge of a United States court in such district or Territory for a subpoena commanding the wit- ness, therein to be named, to appear and testify before said commissioner, at the time and place to be stated m the subpoena, and to bring with him and pro- duce to such commissioner any paper or writmg or written instrmnent or book or other document, supposed to be in the possession or power of such witness, and to be described in the subpoena, such judge, on being satisfied by the affidavit of the person applymg, or otherwise, that there is reason to beUeve that such paper, writing, written instrument, book, or other document is in the possession or power of the witness, and that the same, if produced, would be competent and material evidence for the party applying therefor, may order the clerk of said court to issue such subpoena accordmgly. And if the witness, after being served with such subpoena, fails to produce to the com- missioner, at the time and place stated in the subpoena, any such paper, writ- ing, written instrument, book, or other dociunent, being in his possession or power, and described in the subpoena, and such failure is proved to the satis- faction of said judge, he may proceed to enforce obedience to said process of subpoena, or punish the disobedience in like maimer as any court of the United States may proceed in case of disobedience to like process issued by such court. When any such paper, writing, written instrument, book, or other document is produced to such commissioner, he shall, at the cost of the party requiring the same, cause to be made a correct copy thereof, or of so much thereof as shall be required by either of the parties. — (24 Jan., 1827, c. 4, s. 2, v. 4, p. 199; 1 Burr's Trial,' 183.) See notes to sections 161, 418, and 871, Revised Statutes, concerning records of executive departments. 423 Sec. 871. Pt.2. RE VISED STAT UTES . The Judiciary. Sec. 870. [Fees of witness before commissioner to be paid in advance.] No witness shall be required, under the provisions of either of the two preced- ing sections, to attend at any place out of the county where he resides, nor more than forty miles from the place of his residence, to give his deposition; nor shall any witness be deemed guilty of contempt for disobeying any sub- poena directed to him by virtue of either of the said sections, unless his fee for gohig to, returning from, and one day's attendance at, the place of examina- tion, are paid or tendered to him at the time of the service of the subpoena. — (24 Jan., 1S27, c. 4, ss. 1, 2, v. 4, pp. 197, 199.) Sec. 871. [Depositions for use in State courts.] When a commission to take the testunony of any witness found within the District of Columbia, to be used in a suit depending in any State or territorial or foreign court, is issued from such court, or a notice to the same effect is given according to its rules of practice, and such commission or notice is produced to a justice of the supreme court of said District, and due proof is made to him that the testimony of such wdtness is material to the party desiring the same, the said justice shall issue a sunmions to the witness, requiring him to appear before the commissioners named in the commission or notice, to testify in such suit, at a time and at a place within said District therein specified.— (.3 Mar., 1869, c. 128, s. 1, v. 15, p. 324.) See note to section 868, Revised Statutes, for references to other laws authorizing depo- sitions in various cases. Heads of departments. — In the absence of specific authority on the subject the Attorney General is inclined to hold that the head of a department is not legally bound to appear and testify in obedience to a subpa?na of a court. However, where it is proposed to take the testi- mony by commission, and the head of the department is not thus reqvured to appear in court but before a commissioner, suggested that an arrangement might readily be made which would better comport with the dignity of his office as head of an executive department of the Government, wherebj' such testimony as he should deem proper and ad\dsable to give could be taken at the department of which he is the head. (25 Op. Atty. Gen., 326; see also Gardner v. Anderson," 9 Fed. Gas. No. 5220, noted under sec. 418, R. S., in which head of department refused to respond to subpoena and court refused to proceed against him for con- tempt. Compare In the matter of Ching Hing. noted under sec. 868, R. S.) Chiefs of bureaus in the Navy Depart- ment have been authorized by the Secretary of the Navy to answer interrogatories pro- pounded before a commissioner duly appointed by a State court to take their testimony, without any summons being issued by a justice of the Supreme Court of the District of Columbia as provided for by the above section of the Revised Statutes. (See for example, file 12475-52, Oct. 31, UtH.) Copies of records will not be furnished parties litigant for use in the course of pro- ceedings in a Federal or State court; but the Navy Department will promptly furnish such copies upon call of the court before which the litigation is pending. (G. 0. No. 121, Navy Dept., Sept. 17, 19i4, par. 18; see also file 12475-65, Jan. 12, 1916.) Officers of the Navy or Marine Corps are pro- hibited from producing official records or copies thereof in a State court in answer to subpoena- duces tecum or other\\'ise, \vithout first obtain- ing authority therefor from the Secretary of the Navy. (G. O. No._ 121, Navy Dept., Sept. 17, 1914, par. 18, citing Boske v. Comingore. 177 U. S., 460.) The Navy Department will permit the duly authorized commissioner appointed by a State court to obtain copies of records, at the expense of the party desiring them, the same as such copies would have been furnished upon call of the court before which litigation is pending in which they are to be used. (File 12475-52:1, Aug. 15, 1914.) In accordance with Navy Regulations (Art. R-2958, 1913) and the practice of the Navy Department, a medical officer is not authorized , without approval by the department in each specific case, to (a) sign the form used in secret fraternal orders to secure sick dues; (b) sign a death certificate for presentation to a secret society or lodge having death benefits; or (c) fill out insurance blanks in the case of the death of a naval patient. This relates to medical records of officers and enlisted men in the naval ser\dce who have been patients of the medical officer of whom the certificates are requested, ^^^lere certificates of death are re- quired by State laws in connection with the transportation of remains, such certificates would be "official certificates" and would not come under the prohibition of the regulation.^ . (File 12475-52:10, Aug. 5, 1915; see also 12475-52:8, Dec. 5, 1914; 12475-71, Mar. 16, 1916; 26806-15, Apr. 8, 1909; 5195-61:1, Mar. 21, 1912.) It has been the practice of the Na\y Depart- ment to consider a man's medical record as private and confidential, and that it should be given to no one but the man himself, or if dead to his next of kin, and furthermore that such 424 The Judiciary. Pt.2. REVISED STATUTES. Sec. 879. action in to be taken only upon application to the department direct. (File 12475-52:8, Dec. 12, 1914; C. M. O. 6, 1915, p. 14.) Attorneys or agents may obtain information concerning the service of officers or enlisted men, by filing with the department a power of attorney from the party or his next of kin, and giving a satis- factory statement as to the purpose for which the desired information is to be used. (Art. 1-26, Naval Instructions, 1913.) For other cases, see note to sections 161 and 418, Kevised Statutes. Sec. 872. [Depositions when no commission issued.] Wlicn it satisfactorily appears by affidavit to any justice of the supreme court of the District of Cohimbia, or to any commissioner for taldng depositions appointed by said court — Fu'st. That any person within said District is a material witness for either party in a suit pending in any State or territorial or foreign court; Second. That no commission nor notice to take the testimony of such witness has been issued or given; and Third. That, accorduig to the practice of the court in which the suit is pending, the deposition of a witness taken without the presence and consent of both parties will be received on the trial or hearing thereof, such officer shall issue his summons, requiring the witness to appear before him at a place within the District, at some reasonable time, to be stated therem, to testify in such suit.— (3 Mar., 1869, c. 128, s. 2, v. 15, p. 325.) Sec. 873. [Manner of taking and transmitting depositions.] Testimony obtained under the two preceding sections shall be taken do%\ai m writmg by the officer before whom the witness appears, and shall be certified and trans- mitted by him to the court in which the suit is pending, in such manner as the practice of that court may require. If any person refuses or neglects to appear at the time and place mentioned in the summons, or, on his appearance, refuses to testify, he shall be liable to the same penalties as would be incurred for a hke offense on the trial of a suit. — (3 Mar., 1869, c. 128, s. 3, v. 15, p. 325.) Sec. 874. [Witness fees allowed for giving depositions.] Every witness appearing and testifying under the said provisions relatmg to the District of Columbia shall be entitled to receive for each day's attendance, from the party at whose instance he is summoned, tlie fees now provided by law for each day he shall give attendance. — (3 Mar., 1869, c. 128, s. 4, v. 15, p. 325.) See section 185, Revised Statutes, as to fees allowed witnesses giving depositions for use before departments in pending claims. Sec. 877. [Witnesses; form of subpoena.] Witnesses who are required to attend any term of a circuit or district court on the part of the United States, shall be subpoenaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district attorney. — (6 Feb., 1853, c. 80, s. 3, v. 10, p. 169.) See sections 848-851, Revised Statutes, for amount of fees allowed witnesses. which United States courts of criminal jurisdiction may lawfully issue. (Act Feb. 16, 1909, sec. 11, 35 Stat., 621.) Circuit courts were abolished by the Judicial Code, act of March 3, 1911, sections 289- 291 (36 Stat., 1167). Naval courts have power to issue like process to compel witnesses to appear and testify Sec. 879. [Imprisonment or recognizance of witnesses.] Any judge or other officer who may be authorized to arrest and imprison or bail persons charged with any crime or offense against the United States may, at the hearing of any 425 Sec. 882. Pt.2. REVISED STATUTES. The Judiciary. such char<]::e, rcHjuiro of any witness produced against the prisoner, on pain of imprisojunent, a recognizance, with or without sureties, in his discretion, for his appearance to testify in the case. And where the crime or ofiFense is charged to have been connnitted on the high seas, or elsewhere within the admiralty and maritime jurisdiction of the United States, he may, m his discretion, require a hke recognizance, with such sureties as he may deem necessary, of any witness produced in behalf of the accused, whose testimony in his opinion is important, and is in danger of being otherwise lost. [See §§ 848, 1014.] — (24 Sept., 1789, c 20, s. 33, r. 1, p. 91; 23 Aug., 1842, c. 188, s. 2, v. 5, p. 517; 8 Aug., 1846, c. 98, s. 7, V. 9, p. 73.) See note to section 877, Revised Statutes, as to power of naval courts to compel attend- ance of witnesses. Sec. 881. [Confinement of witnesses at any time to insure appearance.] Any judge of the United States, on the application of a district attorney, and on being satisfied by proof that the testimony of any person is competent and will be necessary on the trial of any criminal proceeding in w^hich the United States are parties or are interested, may compel such person to give recognizance; with or without sureties, at his discretion, to appear to testify therein; and, for that purpose, may issue a warrant against such person, under his hand, with or without seal, directed to the marshal or other officer authorized to execute process in behaK of the United States, to arrest and bring before him such person. If the pereon so arrested neglects or refuses to give recognizance in the manner required, the judge ma}- issue a warrant of commitment agamst him, and the officer shall convey him to the prison mentioned therein. And the said person shall remain in confinement until he is removed to the court for the purpose of giving his testimony, or until lie gives the recognizance required by said judge.— (8 Aug., 1846, c. 98, s. 7, v. 9, p. 73.) See note to section 877, Revised Statutes, as to power of naval courts to compel attendance of witnesses. In prosecutions for unlawful cohabitation, when it appears that there is reasonable ground to believe that a witness will refuse to obey a subpoena, an attachment for such witness may be issued without pre\'iou8 subpoena, and the witness held until he executes a recognizance for his appearance. (Act Mar. 3, 1887, sec. 2, 24 Stat,. 635.) Sec. 882. [Copies of Department records and papers.] Copies of any books, records, papers, or documents m any of the Executive Departments, authen- ticated under the seals of such Departments, respectively, shall be admitted in evidence equally with the originals thereof. — ^(15 Sept., 1789, c. 14, s. 5, V. 1, p. 69. 22 Feb., 1849, c. 61, s. 3, v. 9, p. 347. 31 May, 1854, c, 60, s. 2, V. 10, p. 297.) Certified copies of records in naturalization cases are evidence in any case in which originals might be admissible. (Act June 29, 1906, sec. 28, 34 Stat., 606.) Courts-martial — As to admissibility of evidence and competency of witnesses before naval courts-martial, see section 1624, Revised Statutes, articles 40-42. and 60. Practice of Navy Department as to fiirnishing copies of records for use in court proceed- ings — See note to section 871, Revised Statutes. Scope of section. — Only papers or docu- ments which were made by an officer or agent of the Government in the course of his official duty are embraced by this section, which can not be held to include every document or paper on file. (Block's case, 7 Ct. Cls. , 406.) The words "documents" and "papers" used in acts of Congress do not mean every document or paper on file in a department, but such as were made public documents by officers of the Government in the discharge of their duties. (The Ship Parkman, 35 Ct. Cls., 407.) 426 The Judiciary. Pt.2. RE VISED S TA T UTES . Sec. 886. The statutes pro^^ding for the authentica- tion of copies of books, papers, and documents in the executive departments employ sub- stantially the same language that is used by common-law writers on the same subject and they must be understood and interpreted by the same reasons that govern at common law. (Block's case, 7 Ct. Cls., 406.) Transcripts from the records of the executive departments, when authenticated by the seal of the department, are e\iden-ce both at com- mon law and by statute; but the words ■"docu- ments" and '"papers" used in the act of Congress can not be held to mean evei-y docu- ment or paper on file, but such only as were made by an officer or agent of the Government in the course of his official duty. Official docu- ments duly certified need no further proof; but other documents, though on file, do not by the mere fact of certification become so authenti- cated as to entitle them to be read in evidence. (Block's Ci-ise, 7 Ct. Cls., 406.) A receipt for property captured, procured from a military governor by a claimant and by him filed in an executive department, is not a public dociunent; and an authenticated copy thereof can not be read in evidence. The original must be produced and proved accord- ing to the rule^ of evidence. (Block's case, 7 Ct. Cls., 406.) This statute applies at least to any paper which is by law required to be kept on file in any executive department; it is not limited to papei"s written by an officer in his official ca- pacity. (Cohn V. U. S., 258 Fed. Rep., 355, 362.) See notes to section 1624, Re"vised Statutes, articles 34 and 42. Form of authentication. — It is a sufficient compliance with this section for the liead of the office where the record is kept to certify that it is a true copy of the original, and for the head of the department to certify under seal to the official character of the head of the ofiice. (Ballew v. U. S., 160_ U. S., 187.) State courts may admit in e\'idence certi- fied copies of papers and documents on file in the Navy Department, pursuant to State stat- utes similar to the above provision of section 882. (See, for example, Maurice v. Worden, 54Md.,233.) When documentary evidence is offered before a naval court-martial it must be in a public session of the court, and if admitted the document in full or an authenticated copy thereof must be appended to the record or set out in full in the recorded testimony of the wit- ness who reads from the document (Naval Courts and Boards, 1917, arts. 187, 203), except that it is not necessary for a court-martial to ap- pend either the originals or certified copies of efficiency reports to the record of proceedings when introduced in evidence, a simple nota- tion in the record that they were admitted in evidence being sufficient, as the originals form a part of the officer's official record on file in the Navy Department, where they may readily be examined at any time in connection with the court-martial proceedings. (C. M. O. 19, May 25, 1915, citing file 26'251-7777, July 2, 1913.) When it is desired to put any part of the offi- cial record of an officer in evidence, the origi- nal, where available, should be offered, and the action of a judge advocate in making ad- missions as to its contents would not in general meet "with the approval of the Navy Depart- ment. (C. M. O. 19, May 25, 1915; Naval Courts and Boards, 1917, art. 191.) Court-martial orders, general and special orders, circulars, regulations, and similar pub- lications of the Navy Department should be judicially noticed by courts-martial without being offered in evidence. (See Naval Coui"ta and Boards, 1917.) Sec. 883. [Copies of records in oflace of Solicitor of Treasury.] Copies of any documents, records, books, or papers in the office of the Solicitor of the Treas- ury, certified by him under the seal of his office, or, when his office is vacant, by the officer acthig as SoHcitor for the time, shall be evidence equally "with the originals.— (22 Feb., 1849, c. 61, s. 2, v. 9, p. 347.) Sec. 886. [Transcripts from records of Treasury.] Wlien suit is brought in any case of delinquency of a revenue officer, or other person accoimtable for public money, a transcript from the books and proceedings of the Treasury Department, certified by the Register and authenticated under the seal of the Department, or, when the suit involves the accounts of the War or Navy Departments, certified by the Auditors respectively charged with the exami- nation of those accounts, and authenticated under the seal of the Treasmy Department, shall be admitted as evidence, and the court trying the cause shall be authorized to grant judgment and award execution accordmgly. And all copies of bonds, contracts, or other papers relatmg to, or connected with, the settlement of any account between the United States and an individual, when certified by the Register, or by such Auditor, as the case may be, to be true copies of the originals on file, and authenticated imder the seal of the Department, may be annexed to such transcripts, and shall have equal validity, and be entitled to the same degree of credit which would be due to the original 54641°— 22- -28 427 Sec. 806. Pt. 2. REVISED STATUTES. The Judiciary. papers if produced and authenticated in court: Provided, That where suit is brought upon a bond or other sealed instrument, and the defendant pleads "non est factum," or makes his motion to the court, verifying such plea or motion by his oath, the court may take the same into consideration, and, if it appears to be necessary for the attainment of justice, may require the produc- tion of the original bond, contract, or other paper specified in such affidavit. — (3 Mar., 1797, c. 20, s. 1, v. 1, p. 512; 3 Mar., 1817, c. 45, s. 11, v. 3, p. 367; Walton V. U. S., 9 Wh., 651 ; U. S. v. Buford, 3 Pet., 12; Smith v. U. S., 5 Pet., 292; Coxv. U.S., 6 Pet., 172; U. S. v. Jones, 8 Pet., 375; Gratiot v. U. S., 15 Pet., 336; U. S. v. Irving, 1 How., 250; Hoyt v, U. S., 10 How., 109; Bruce V. U. S., 17 How., 437; U. S. v. Edwards, 1 McLean, 467; U. S. v. Hilhard et al., 3 McLean, 324; U. S. v. Lent, 1 Paine, 417; U. S. v. Martin, 2 Paine, 68; U. S. V. Van Zandt, 2 Cr. C. C, 328; U. S. v. Griffith, 2 Cr. C. C, 336; U. S. V. Lee, 2 Cr. C. C, 462; U. S. v. Harrill, 1 McAll., 243; U. S. v. Mattison, Gilp., 44; U. S. v. Corwin, 1 Bond, 149; U. S. v. Gaussen, 19 Wall., 198.) This section was amended by act of July 31, 1894, eection 17 (28 Stat., 210), as amended by act of March 2, 1895, section 10 (28 Stat., 809), 80 as to require that "the transcripts from the books and proceeding of the Depart- ment of the Treasury and the copies of the bonds, contracts, and other papers pro- vided for" in section 886, Revised Stat- utes, "shall hereafter be certified by the Secretary or an Assistant Secretary of the Treasury imder the seal of the Depart- ment." Sec. 887. [Evidence in embezzlement cases.] Upon the trial of any indict- ment agamst any person for embezzling public moneys, it shall be sufficient evidence, for the purpose of showing a balance against such person, to produce a transcript from the books and proceedings of the Treasury Department, as provided by the preceding section. — (6 Aug., 1846, c. 90, s. 16, v. 9, p. 63; 2 Mar., 1797, c. 20, s. 1, v. 1, p. 512. U. S. v. Gaussen, 19 Wall., 198.) A similar provision is contained in the Criminal Code, act March 4, 1909, section 93 (35 Stat., 1105). A provision that transcript from account books of Auditor for Post Office Department shall be prima facie evidence of balance against person on trial for embezzlement of postal funds, is contained in the Criminal Code, act of March 4, 1909, section 225 (35 Stat., 1133.) Accepting or transmitting to Treasury Depart- ment for allowance, receipt from creditor of the United States without having paid full amount specified therein, is evidence of conversion. (Criminal Code, act Mar. 4, 1909, sec. 95, 35 Stat., 1106.) Failure to produce or pay over postal funds when required is prima facie evidence of embezzlement. (Criminal Code, act Mar. 4, 1909, sec. 225, 35 Stat., 1133.) On general subject of embezzlement see sec- tions 89-96, Criminal Code, act March 4, 1909 (35 Stat., 1105, 1106), and section 1624, Revised Statutes, article 14. Refusal of officer to surrender or transfer pubUc funds when required is prima facie evidence of embezzlement. (Criminal Code, act Mar. 4, 1909, sec. 94, 35 Stat., 1106.) Sec. 888. [Copies of records in Returns Office.] A copy of any return of a contract returned and filed in the returns-office of the Department of the Inte- rior, as provided by law, when certified by the clerk of the said office to be full and complete, and when authenticated by the seal of tlie Department, shall be evi- dence in any prosecution agamst any officer for falsely and corruptly swearmg to the affidavit required by law to be made by such officer in making his return of any contract, as required by law, to said returns-office. [See § 3744,] — (2 June, 1862, c. 93, s. 4, v. 12, p. 412.) See sections 512-515, Revised Statutes, relating to Returns Office. Sec. 895. [Extracts from Journals of Congress.] Extracts from the Journals of the Senate, or of the House of Representatives, and of the Executive Journal of the Senate when the injunction of secrecy is removed, certified by the Secre- 428 The Judiciary. Pt.2. REVISED STATUTES. Sec. 90d. tary of the Senate or by the Clerk of the House of Representatives, shall be admitted as evidence in the courts of the United States, and shall have the same force and effect as the originals would have if produced and authenticated in court.— (8 Aug., 1846, c. 107, s. 1, v. 9, p. 80.) See section 859, Revised Statutes, concerning testimony given by witnesses before Congress. Sec. 896. [Copies of records in consular offices.] Copies of all official docu- ments and papers in the office of any consul, vice-consul, or commercial agent of the United States, and of all official entries in the books or records of any such office, certffied imder the hand and seal of such officer, shall be admitted in evidence in the courts of the United States. [See § 1707.] — (8 Jan., 1869, c. 7, V. 15, p. 266.) Copies of protests or declarations before consular officers are admissible in evidence under section 1707, Revised Statutes. Sec. 905. [Authentication of State laws and records.] The acts of the legis- lature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such State, Territory, or country affijced thereto. The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court amiexed, if there be a seal, together with a cer- tificate of the judge, chief justice, or presiding magistrate, that the said attesta- tion is in due form. And the said records and judicial proceedings, so authenti- cated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken.— (26 May., 1790, c. 11, v. 1, p. 122; 27 Mar., 1804, c. 56, s. 2, v. 2, p. 299; Ferguson v. Harwood, 7 Cr., 408; Mills v. Duryee, 7 Cr., 481; U. S. V. Amedy, 11 Wh., 392; Buckner v. Finley, 2 Pet., 592; Owings v. Hull, 9 Pet., 627; Urtetiqui v. D'Arbel, 9 Pet., 700; McEhnoyle v. Cohen, 13 Pet., 312; Stacey v. Thrasher, 6 How., 44; Bank of Alabama v. Dal ton, 9 How., 522; D'Arcy v. Ketchum, 11 How., 165; Railroad v. Howard, 13 How., 307; Booth V. Clark, 17 How., 322; Mason v. Lawrason, 1 Cr. C. C, 190; Buford v. Hickman, Hemp., 232; Craig v. Brown, Pet. C. C, 354; Stewart v. Gray, Hemp., 94; Gardner v. Lindo, 1 Cr. C. C, 78; Trigg v. Conway, Hemp., 538; Turner v. Waddington, 3 Wash. C. C, 126; Cathn v. Underbill, 4 McLean, 199; Morgan v. Curtenius, 4 McLean, 366; Hale v. Brotherton, 3 Cr. C. C, 594; Mewster v. Spaldmg, 6 McLean, 24; Parrot v. Habersham, 1 Cr. C. C, 14; Talcott V. Delaware Ins. Co., 2 Wash. C. C, 449; James v. Stookey, 1 Wash. C. C, 330; Bennett v. Bennett, District Court, Oregon, 1867.) Revised Statutes of the United States (first edition ): Printed volume legal evidence of the laws therein contained (act June 20, 1874, sec. 2, 18 Stat., 113). Revised Statutes of the United States (^second edition): Printed volume legal evidence of the laws therein contained, but shall not preclude reference to nor control in case of discrepancy the effect of any original act as passed by Congress since December 1, 1873. (Act Mar. 2, 1877, sec. 4, 19 Stat., 269, as amended by act Mar. 9, 1878, 20 Stat., 27.) Statutes at Large: Printed volumes legal evi- dence of laws and treaties therein con- tained. (Act June 20, 1874, sec. 8, 18 Stat., 114; act Jan. 12, 1894, sec. 73, 28 Stat., 612.) Judicial notice of State laws. — The National and State courts, not being foreign to one another, as the State courts are, but sub- ordinate courts of a complete system of Govern- ment, with limited and separate jurisdiction; and the former having judicial knowledge of the laws of the several States, and therefore of the mode of authenticating the judicial records 429 Sec. 906. Pt. 2. REVISED STATUTES. The Judiciary. thereof, a statute prescribing the mode of prov- ing the judicial records of a State when used in another State does not apply to a case where such record is sought to be used in a national court. (Bennett v. Bennett, 3 Fed. Cas. No. 1318; see also, as to judicial notice by courts of the United States of the public statutes of the several States, Merchants Exch. Bank v. McGraw, 59 Fed. Rep., 972; Owinga v. Hull, 9 Pet., 625; Bank v. Francklyn, 120 U. S., 747; Lamar v. Micou, 114 U. S., 857; Gormley v. Bunyan, 138 U. S., 453.) All Federal courts, when exercising original State where they are sitting, but of every other State and of every Territory. All courts in the United States take judicial notice of the United States Constitution and amendments thereto, and of the public statutes enacted by Congress. Judicial knowledge of a statute in- cludes the date when it went into effect, when it was suspended or repealed, and facta recited or recognized in the statute. (See 16 Cyc, 889, 890, 892, and cases there cited.) Naval cotirts-m.artial must take judicial notice of the law of a State which is pertinent to a case on trial, without such law having been jurisdiction, take judicial notice of the consti- j offered in evidence. (C. M. O. 27, 1913, p. 8.) tutions and public statutes, not only of the | Sec. 906. [Proof of State records other than judicial.] iVll records and exem- plifications of books, which may be kept in any pubUc office of any State or Territory, or of any country subject to the jurisdiction of the United States, not appertaumig to a court, shall be proved or admitted m any court or office in any other State or Territory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presidmg justice of the court of the county, parish, or district in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the State, or Territory, or country, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shaU certify, under his hand and the seal of his office, that the said presiduig justice is duly commissioned and qualified; or, if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the State, Territory, or country aforesaid m which it is made. And the said records and exemphfications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the State, Terri- tory, or country, as aforesaid, from which they are taken. — (27 Mar., 1804, c. 56, ss. 1, 2, V. 2, pp. 298, 299; 21 Feb., 1871, c. 62, v. 16, p. 419.) 430 CHAPTER EIGHTEEN. PROCEDURE. Sec. 1023. [Perjury before naval court-martial.] In prosecutions for per- jury committed on examination before a naval general court-martial, or for the subornation thereof, it shaU be sufficient to set forth the offense charged on the defendant, without setting forth the authority by which the court was held, or the particular matters brought before, or intended to be brought before said court.— (17 July, 1862, c. 204, s. 1, art. 13, v. 12, p. 604.) Perjury committed by persons in the naval servdce is punishable under section 1624, Re^dsed Statutes, article 14, clause 4, and articles 22 and 42. Perjury is defined and made punishable by fine and imprisonment, by the Criminal Code, act March 4, 1909, section 125 (35 Stat.,. nil). 431 CHAPTER TWENTY-ONE. THE COURT OF CLAIMS— JURISDICTION, POWERS, AND PROCEDURE. [The Provisions of Existing Law Concerning the Court of Claims Are Contained m the Judicial Code, Act of March 3, 1911, Sections 136-187 (36 Stat., 1135-1143). The Following Sections of the Revised Statutes, which Are Repealed by Section 297 of the Judiclal Code (36 Stat., 1168), Are Noted Below for Convenience in Locating the Corresponding Sections of the Judiclal Code to which They Have Been Transferred.] Sec. 1059. [Jurisdiction : Claims against United States ; set-offs ; disbursing officers' responsibility for losses.] See section 145, Judicial Code (36 Stat., 1136). Sec. 1061. [Judgments for set-off or counterclaim.] See section 146, Judicial Code (36 Stat., 1137.) Sec. 1062. [Decree relieving disbursing officers of responsibility for losses.] See section 147, Judicial Code (36 Stat., 1137). Sec. 1063. [Questions referred to Court of Claims by heads of departments.] See section 148, Judicial Code (36 Stat., 1137). Sec. 1064. [Procedure in cases transmitted by departments.] See section 149, Judicial Code (36 Stat., 1138). Sec. 1065. [Judgments in cases transmitted by departments; how paid. See section 150, Judicial Code (36 Stat., 1138). Sec. 1075. [Commissioners to take testimony.] See section 163, Judicial Code (36 Stat., 1140). Sec. 1076. [Power to call upon departments for information.] See section 164, Judicial Code (36 Stat., 1140). Sec. 1088. [New trial on motion of United States.] See section 175, Judicial Code (36 Stat., 1141). 432 TITLE XIY. THE ARMY. Sec. 1135. Supplies and transportation for naval and marine detachments. 1143. Rations, to be furnished naval detach- ments. 1176. Trusses, to whom furnished. 1177. Trusses, applications for. 1178. Trusses, purchase of. 1225. Detail of Army and Navy officers to educational institutions. Sec. 1229. Dismissal of officers in military or naval service. 1342, Art. 2. Persons subject to military law. 1342, Art. 4. Who may serve on courts- martial. 1342, Art. 120. Command, when different corps happen to join. Sec. 1135. [Supplies and transportation for naval and marine detachments.] The officers of the Quartermaster's Department shall, upon the requisition of the naval or marine officer commanding any detachment of seamen or marines under orders to act on shore, in co-operation with land troops, and during the time such detachment is so acting or proceeding to act, furnish the officers and seamen with camp-equip^age, together with transportation for said officers, seamen, and marines, their baggage, provisions, and cannon, and shall furnish the naval officer commanding any such detachment, and his necessary aids, with horses, accouterments, and forage. — (15 Dec, 1814, c. 13, ss. 1,2, v. 3, p. 151.) Ordnance or ordnance stores may be trans- ferred or sold to other executive depart- ments, payment to be made by the proper disbursing officer of the department con- cerned, the price to include cost price of the stores and the costs of inspection and transportation. (Act Aug. 24, 1912, 37 Stat., 589.) Quartermaster-General of Army may sell arti- cles of ser\'iceable quartermaster property to officers of the Navy and Marine Corps for use in the public serv-ice. the same as such articles are sold to officers of the Army. (Act Mar. 4, 1915, 38 Stat., 1079.) Subsistence supplies of the Army may be sold to officers and enUsted men of the Navy and Marine Corps at same prices charged officers and enlisted men of the Army. (Act Mar. 4, 1915, 38 Stat., 1072.) Subsistence supplies furnished by the War Department to another executive depart- ment are to be paid for in cash by the proper disbursing officer of the bureau, office, or department concerned . or by the employee to whom the sale is mafle; the price charged to include the contract or invoice price and 10 per cent additional to cover wastage in transit, and the cost of transportation. "(Act Mar. 3, 1911, 36 Stat., 1047.) Transportation by or under the instructions of the Quartermaster General of the Army, of property for the civil or naval departments of the Government in Washington or else- where, under the regulations governing the transportation of Army supplies, was au- thorized byactof July 5, 1884 (23 Stat., Ill), which provided that the amount paid for such transportation should be refunded or paid by the bureau to wliich such property or stores pertained . When in the opinion of the Secretary of War accommodations are available, transporta- tion may be provided for the officers, en- listed men, employees, and supplies of the Navy, the Marine Corps, and other officers of the Government while traveling on offi- cial business, and without expense to the United States for the families of those per- sons herein authorized to be transported. (Act Mar. 2,1907, 34 Stat., 1170.) When in the opinion of the Secretary of War accommodations are available, transporta- tion on vessels of the Army transport serv- ice may be furnished to officers, employees, and enlisted men of the Coast Guard and their families, without expense to the United States, and also secretaries and supplies of the Army and Navy depart- ment of the Young Men's Christian Asso- ciation. (Act Mar. 3, 1911, 36 Stat., 1051.) When the War Department procures stores or material, or performs any service, for the Navy Department, the funds of the Navy Department may be placed subject to the requisition of the ^^'ar Department for direct expenditure bv it. (Act Mar. 4, 1915, 38 Stat., 1084.) Sec. 1143. [Rations to be furnished naval detachments.] The officers of the Subsistence Department shall, upon the requisition of the naval or marine offi- 433 Sec. 1178. Pt.2. REVISED STATUTES. The Army. ccr commanding any dotachmont of seamen or marines under orders to act on shore, in co-operation with the hind troops, and during the time such detach- ment is so acting or proceeding to act, furnish rations to the officers, seamen, and marines of the same. — (15 Dec, 1814, c. 13, s. 1, v. 3, p. 151.) Provision for supplyinc; enlisted men of the Ma- rine Corps with the Army or Navy ration, or commutation therefor, under varying conditions, was made by section 1615, Re- vised Statutes, and act of March 4, 1913(37 Stat., 909). Sec. 1176. [Trusses, to whom furnished. Superseded.] This section provided as follows: "Sec. 117(). Every soldier of the Union Army who was ruptured while in the line of duty dur- ing the war for the suppression of the rebellion, is entitled to receive a single or double truss, of such style as may be designated by the Surgeon General, as best suited for his disability." — (28 May, 1872, c. 228, s. 1, v. 17, p. 164.) It was superseded by the following pro- vL^^ion of the actof ^hirch 3, 1879 (20 Stat., 353): "That section one of the act entitled 'An act to provide for furni.-^hing tnisses to disabled sol- diers,' approved May twenty -eighth, eighteen hundred and seventy-two [incorporated in sec- tion 1176, Revised Statutes], be, and the same is hereby, amended so that said section shall read as follows: "That every soldier of the Union Army, or petty-officer, seaman, or marine in the naval service, who was ruptured while in the line of duty during the late war for the suppression of the rebellion, or who shall be so ruptured there- after in any war, shall be entitled to receive a single or double truss of such style as may be designated by the Surgeon General of the United States Army as best suited for such disability ; "And whenever the said truss or trusses so furnished shall become useless from wear, de- struction, or loss, such soldier, petty-officer, sea- man, or marine shall be supplied with another truss on making a like application as provided for in section two of the original act of which this is an amendment: ^^ Provided, That such application shall not be made more than once in two years and six months; * * *" The words "section two of the original act," as used in the above enactment of March 3, 1879, refer to section 2 of the act of May 28, 1872, which is incorporated in section 1177, Re- vised Statutes, set forth below. Artificial limbs or commutation therefor are allowed officers, soldiers, seamen, and marines who shall have lost a limb in the line of duty in the military or naval service, by act of August 15, 1876 (19 Stat., 203). See also section 4787, Revised Statutes, as amended by acts of Febru- ary 27, 1877, section 1(19 Stat., 252) and March 3, 1891 (26 Stat., 1103); and see sections 4788-4791, Revised Statutes, as amended by acts of Febru- ary 27, 1877 (19 Stat., 252) and March 3, 1891 (26 Stat, 979). Sec. 1177. [Trusses, application for.] Application for such truss shall be made by the ruptured soldier, to an examining surgeon for pensions, whose duty it shall be to examine the applicant, and when found to have a rupture or hernia, to prepare and forward to the Surgeon-General an application for such truss without charge to the soldier. [See § 4787.] — (28 May, 1872, c. 228, s. 2, V. 17, p. 164.) ice, as well as to soldiers of the Army." Sec- tion 2 of the act mentioned was incorporated in section 1177, Revised Statutes, and section 3 of said act was embodied in section 1178, Revised Statutes. This section was amended by act of March 3, 1879 (20 Stat., 353), which provided, "That sections two and three of the said act of May twenty-eighth, eighteen hundred and seventy- two, shall be construed so as to apply to petty officers, seamen, and marines of the naval serv- Sec. 1178. [Trusses, purchase of.] The Surgeon-General is authorized and directed to purcliase tlic trusses required for such soldiers, at wholesale prices, and tlie cost of the same shall be paid upon the requisition of the Surgeon- General out of any moneys in the Treasury not otherwise apiDropriated. — (26 May, 1872, c. 228, s. 3, v. 17, p. 164.) This section was amended by act of March 3, 1879, quoted above, under section 1177, Re- vised Statutes. It was repealed in part by the following provision of the act of I\Iay 27, 1908 (35 Stat. , 367) : "So much of section eleven hundred and eeventy-eight of the Revised Statutes of the United States as makes a permanent indefinite appropriation to purchase trusses for soldiers, is repealed, to take effect after June thirtieth, nineteen hundred and nine, and estimates of sufficient sums for the purchase of such trusses shall be submitted to Congress for the fiscal year nineteen hundred and ten, and annually thereafter, in the regular Book of Estimates." 434 The Army. Pt.2. REVISED STATUTES. Sec. 1225. Sec. 1225. [Detail of Army and Navy officers to educational institutions.] The President may, upon the apphcation of any estabhshed mihtary institute, seminary or academy, college or university, within the United States having capacity to educate at the same time not less than one hundred and fifty male students, detail an officer of the Army or Navy to act as superintendent, or professor thereof; but the number of officers so detailed shall not exceed fifty from the Army, and ten from the Navy, being a maximum of sixty, at any time, and they shall be apportioned throughout the United States, first, to those State institutions applying for such detail that are required to provide instruc- tion in mihtary tactics under the provisions of the act of Congress of Jaly second, eighteen hundi-ed and sixty-two, donating lands for the estabHshment of colleges where the leading object shall be the practical instruction of the industrial classes in agriculture and the mechanic arts, including mihtary tactics; and after that, said details to be distributed, as nearly as may be practicable, according to population. Tho Secretary of War is authorized to issue, at his discretion and under proper regulations to be prescribed by him, out of ordnance and ordnance stores belonging to the Government, and which can be spared for that purpose, such number of the same as may appear to be required for mihtary instruction and practice by the students of any coUege or university under the provisions of this section, and the Secretary shall require a bond in each case, in double the value of the property, for the care and safe keeping thereof, and for the retiu'n of the same when required. This section •was expressly amended and reenacted to read as above by act of September 26, 1888 (25 Stat., 491), section 2 of which act provided "That the said section twelve hun- dred and twenty-five of the Revised St.;tutes of the United States, as amended by the said act of Congress approved July fiith, eighteen hundred and eighty-four, and all acts and parts of acts inconsistent or in conflict with the pro- visions of this act, be, and the same are hereby, repealed, saving always, however, all acts and things done under the said amended section as heretofore existing." As originally enacted, this section pro- \'ided as follows : "Sec. 1225. The President may, upon the application of any established college or uni- versity within the United States, having capac- ity to educate, at the same time, not less than one hundred and fifty male students, detail an officer of the Army to act as president, superin- tendent, or professor thereof; but the number of officers so detailed shall not exceed twenty at any time, and they shall be apportioned throughout the United States, as nearly as may be practicable, according to population. Offi- cers so detailed shall be governed by general rules prescribed, from time to time, by the President. The Secretary of War is authorized to issue at his discretion and under proper regu- lations to be prescribed by him, out of any small arms or pieces of field artillery belonging to the Government and which can be spared for that purpose, such nimiber of the same as may appear to be required for military instruc- tion and practice, by the students of any college or university under the provisions of this sec- tion; and the Secretary shall require a bond in each case, in double the value of the property, for the care and safe-keeping thereof, and for the return of the same when required." 28 July, 1866, c. 229, s. 26, v. 14, p. 336. 4 May, 1870, res. 40, v. 16, p. 373. By act of July 6, 1876 (19 Stat., 74), the maximum number of officers to be detailed to educational institutions was increased from twenty, as authorized by the original section 1225, to thirty, and by act of July 5, 1884 (23 Stat., 108), was further increased to forty, until section 1225 was amended and reenacted as set forth above by act of September 26, 1888 (25 Stat., 491). OTHER LAWS AUTHORIZING DETAILS TO gDXJCA- • TIONAL INSTITUTIONS. Sec. 1260, R.S.: "Any retired officer may, on his own application, be detailed to serve as pro- fessor in any college. [But while so serving, such officer shall be allowed no additional com- pensation.]" — (15 July, 1870, C.294, s. 23, v. 16, p. 320. 27 Feb., 1877, c. 69, v. 19, p. 243.) Act Fchruary 26, 1879 {20 Stat., 322): "That for the pm-pose of promoting a knowledge of steam engineering and iron shipbuilding among the young men of the United States, the President may, upon the application of an established scientific school or college within the United States, detail an officer from the Engineer Corps of the Navy as professor in such school or college: Provided, That the number of officers so detailed shall not at any time exceed twenty-five, and such details shall be governed by rules to be prescribed from time to time by the President: And provided further. That such details may be withheld or withdrawn when- ever, in the judgment of the President, the in- terests of the public service shall so require." 435 Sec. 1225. Pt.2. REVISED STATUTES. The Army. [The "Eiifxinoer Corps of the Navy" was abolishod and (heporsonnol thereof transferred to the line of the Navy by act of March 3, 1899 (30 Stat., 1004). See note to section 1390, Re- vised Statute.] Act Mivj <, ISSO {21 Stat., /iJ).- "Upon the application of any college, university, or insti- tution of k'arninu; incorporated under the laws of any State witliin the United States, having capacity at the same time to educate not less than one liundred and lifty male students, the President may detail an oilicer of the Army on the retired list to act as president, superintend- ent, or professor thereof; and such oilicer may receive from the institution to which he may be detailed the difference between his retired and full pay, and shall not receive any additional pay or allowance from the United States." Act September 26, 1S8S {25 Slat., 491): ''Pro- vided, That nothing in this act shall be so con- strued as to prevent the detail of officers of the En<:ineer Corps of the Navy as professors in scientific schools or colleges as now provided by act of Congress approved February twenty- sixth, eighteen hundred and seventy-nine, entitled 'An act to promote a knowledge of steam engineering and iron shipbuilding among the students of scientific schools or colleges in the United States.' " [The act of September 26, 1888, from which this provision is taken, reen- acted section 1225, Revised Statutes, as set forth above. As to the "Engineer Corps of the Navy ' ' see note above to act of February 26, 1879.] Act January 13, 1891 (26 Stat., 716): "That section twelve hxindred and twenty-five of the Re^^sed Statutes, concerning details of officers of the Army and Navy to educational institu- tions, be, and the same is hereby, amended so as permit the President to detail, under the pro- visions of said act, not to exceed seventy-five officers of the Army of the United States; and the maximum number of officers of the Army and Na\'j^ to be detailed at any one time under the provision of the act passed September twenty-sixth, eighteen hundred and eighty- eight, amending said section twelve hundred and twenty-five of the Revised Statutes, is hereby increased to eighty-five: Provided, That no officer shall be detailed to or maintained at any of the educational institutions mentioned in said act where instruction and drill in mili- tary tactics is not given: Provided further, That nothing in this act shall be so construed as to prevent the detail of officers of the Engineer Corps of the Navy as professors in scientific schools or colleges as now provided by act of Congress approved February twenty-sixth, eighteen hundred and seventy-nine, entitled 'An act to promote a knowledge of steam engineering and iron shipbuilding among the students of scientific schools or colleges in the United States.' " [As to the "Engineer Corps of the Navy," see note above to act of February 26, 1879.] _ Act Novembers, 1893 (28 Stat., 7): "That sec- tion twelve hundred and twenty-five of the Revised Statutes, concerning details of officers of the Army and Navy to educational institu- tions, be, and the same is hereby, amended so as to permit the President to detail under the provisions of said act not to exceed one hundred officers of the Army of the United States; and no ofiicer shall be thus detailed who has not had five years' service in the Army, and no detail to such duty shall extend for more than four years; and officers on the retired list of the Army may upon their own application be detailed to such duty, and when sodetailed shall receive the full pay of their rank; and the maximum number of officers of the Army and Navy to be detailed at any one time under the provisions of the act approved January thirteenth, eighteen hundred and ninety-one, amending section twelve hun- dred and twenty-five of the Revised Statutes as amended by an act approved September twenty-sixth, eighteen hundred and eighty- eight, is hereby increased to one hundred and ten." Act August 6, 1894 {28 Stat., 235): "Nothing in the act entitled 'An act to increase the num- ber of officers of the Army to l)e detailed to col- leges, ' approved November third, eighteen hun- dred and ninety- three, shall be so construed as to prevent, limit, or restrict the detail of retired officers of the Army at institutions of learning under the provisions of section twelve hundred and sixty. Revised Statutes, and the act mak- ing appropriations for the support of the Army, and so forth, approved May fourth, eighteen hundred and eighty, nor to forl)id the issue of ordnance and ordnance stores, as provided in the act approved September twenty-sixth, eighteen hundred and eighty-eight, amending section twelve hundred and twenty-five, Re- used Statutes, to the institutions at which re- tired officers may be so detailed; and said act of November third, eighteen hundred and ninety-three, and said act of May fourth, eight- een hundred and eighty, shall not be construed to allow the full pay of their rank to retired offi- cers detailed under said section twelve hundred and sixty, Revised Statutes, and said act of May fourth, eighteen hundred and eighty." Act March 2, 1895 {28 Stat., 826): "Any re- tired officer of the Navy or Marine Corps may, on his own application, be detailed to service as a teacher or professor in any school or college, but while so serving such officer shall be allowed no additional compensation." ActFehruan/26,1901 (31 Stat., 810): "Whereas the national defense must depend upon the vol- unteer service of the people of the several States; and "Whereas those schools which shall adopt a system of military instruction are entitled to the assistance of the Government in order to secure to the United States such a knowledge of mili- tary affairs among the youth of the country as will render them efficient as volunteers if called upon for the national defense: Therefore, "Be it enacted by the Senate and House of Rep- resentatives o J the United States of Americain Con- gress assembled, That section twelve hundred and twenty-five of the Revised Statutes, con- cerning the detail of officers of the Army and Navy to educational institutions be, and the same is hereby, amended so as fo permit the President to detail under the provisions of that act, and in addition to the detail of the officers of the Army and Navy now authorized to be detailed under the existing provisions of said act, such retired officers of the Army and Naw of the United States as in his judgment may be 436 The Army. Pt.2. REVISED STATUTES. Sec. 1225. required for that purpose, to act aa instructors in. military'' drill and tactics in schools in the United States, where such instruction shall have been authorized by the educational au- thorities thereof, and where the ser\'ices of sucli instructors shall have been applied for by said authorities. "Sec. 2. That no detail shall lie made under this act to any school unless it shall pay the cost of commutation of quarters of the retired officers detailed thereto and the extra-duty pay to which the latter may be entitled by law to receive for the performance of special duty: Provided, That no detail shall be made under the provisions of this act unless the officers to be detailed are willing to accept such position without compensation from the Goverimient other than their retired pay." Act April 21, 1904 {33 Stat., 225): "That sec- tion twelve hundred and twenty-five of the Revised Statutes, concerning the detail of officers of the Army and Navy to educational institutions, be, and the same is hereby, amended so as to permit the President to detail under the provisions of that act, and in addi- tion to the detail of the officers of the Army and Navy now authorized to be detailed under the existing provisions of said act, such retired officers and noncommissioned officers of the Army and Navy of the United States as in his judgment may be required for that purpose to act as instructors in military drill and tactics in schools in the United States and Territories where such instructions shall have been authorized by the educational authorities thereof, and where the services of such instruc- tors shall have been applied for by said authorities. "Sec. 2. That no detail shall be made under this act to any school unless it shall pay the cost of commutation of quarters of the retired officers or noncommissioned officers detailed thereto and the extra-duty pay to which they may be entitled by law to receive for the performance of special duty: Provided, That no detail shall be made under the provi- sions of this act unless the officers and non- commissioned officers to be detailed are willing to accept such position : Provided further , That they shall receive no compensation from the Government other than their retired pay." Act March 3, 1909 (35 Stat., 738): "That the act approved November third, eighteen hun- dred and ninety-three, authorizing the detail of officers of the Army and Navy to educational institutions, be amended so as to provide that retired officers, when so detailed, shall receive the full pay and allowances of their rank, ex- cept that the limitations on the pay of officers of the Army above the grade of major as pro- vided in the acts of March second, nineteen hundred and five, and June twelfth, nineteen hundred and and six, shall remain in force." Act March 4, 1911, section 3 (33 Stat., 1353): "That the President of the United States is hereby authorized, when in his opinion the same can be done without detriment to the public service, to detail proper officers of the Navy as superintendents of or instructors in such schools: Provided, That if any such school shall be discontinued, or the good of the naval service shall require, such vessel shall be imme- diately restored to the Secretary of the Navy and the officers so detailed recalled: And pro- vided further , That no person shall be sentenced to or received at such schools as a punishment or commutation of punishment for crime." [The schools referred to in this section are certain nautical schools, or schools or colleges having a nautical branch.] Act June 3, 1916, section 45 (39 Stat., 192): "The President is hereby authorized to detail such numbers of officers of the Army, either active or retired, not above the grade of colonel, as may be necessary, for duty as professors and assistant professors of military science and tactics at institutions where one or more units of the Reserve Officers' Training Corps are maintained; but the total number of active officers so detailed at educational institutions shall not exceed three hundred, and no active officer shall be so detailed who has not had five years' commissioned service in the Army. In time of peace retired officers shall not be detailed under the provisions of this section without their consent. Retired officers below the grade of lieutenant colonel so detailed shall receive the full pay and allowances of their grade, and retired officers above the grade of major so detailed shall receive the same pay and allowances as a retired major would receive under a like detail. No detail of officers on the active list of the Regular Army under the pro- visions of this section shall extend for more than four years." Act June3, 1916, section46 (39 Stat., 192): "The President is hereby authorized to detail for duty at institutions where one or more units of the Reserve Officers' Training Corps are main- tained such number of enlisted men, either active or retired orof the Regular Army Reserve, as he may deem necessarj^ Itut the number of active noncommissioned officers so detailed shall not exceed five hundred, and all active noncommissioned officers so detailed shall be additional in their respective grades to those otherwise authorized for the Army. Retired enlisted men or members of the Regular Army Reser\^e shall not be detailed under the pro- \T.sions of this section ^vithout their consent. WTiile so detailed they shall receive acti^'e pay and allowances. ' ' Act June3 ,1916, section56(39 Stat. J97):"Such. arms, tentage, and equipment as the Secretary of War shall deem necessary for proper military training shall be supplied by the Government to schools and colleges, other than those pro- vided for in section forty-seven of this act, having a course of military training prescribed by the Secretaiy of War and having not less than one hundred physically fit male students above the age of fourteen years, imder such rules and regulations as he may prescrilie; and the Secretary of War is hereby authorized to detail such commissioned and noncommissioned officers of the Army to said schools and colleges, other than those pro\dded for in sections forty- five and forty-six of this act, detailing not less than one such officer or noncommissioned officer to each five hundred students iinder military instruction." [Section 47 of this act provides for ' ' institutions at which one or more units of the Reserve Officers' Training Corps are maintained. ' '] 437 Sec. 1225. Pt. 2. REVISED STATUTES. The Army. Act September 17, 1919 (41 Stat., 286): "That no officer on the activ'e list [Army] shall be de- tailed for * ■* * duty at schools and col- lejjes, not including; schools of the service, where officers on the retired list can be secured who are competent for such duty." (Similar provision contained in act June 4, 1920, 41 Stat., 777.) Generous policy in respect to educa- tional institutions. — The policy of the United States has always l)een a generous one in respect to educational institutions. Statutes have been enacted appropriating a particular section in each township of the pul)lic lands for use of schools. By the acts of July 30, 1890 (26 Stat., 417), and ]\rarch 4, 1907 (34 Stat., 1281), money is annually appropriated to each State and Territory for the more complete en- dowment and maintenance of colleges for the benefit of agriculture and the mechanical arts now established or which may be hereafter established in accordance ^vith the act of Julv 2, 1862 (12 Stat., 503). Accordingly, the pro- visions of section 1225, Revised Statutes, should be gi^'en a broad interpretation. (17 Comp. Dec. 691. Mar. 22, 1911.) "Within the United States," includes college in Porto Rico. — The words, "upon the application of an established college or university within the United States." as used in section 1225 of the Revised Statutes, were not intended to restrict the benefits of said statute to colleges or universities "within the United States," in the sense of the States united, but were used in a l^roader sense and embrace the organized contiguous Territories; and the act of April 12, 1900 (31 Stat., 79), authorizes the extension of the lienefits of section 1225 as amended to Porto Rico. (17 Comp. Dec, 691, Mar. 22, 1911.) "An officer of the Army or Navy" in- cludes a retired officer. — T\Tien the law speaks of "officers of the Army," ^^athout any qualifjang words, it includes officers on the re- tired list as well as those on the active list. Section 1225, as amended by the act of Septem- ber 26, 1888, authorizes the President to detail officers of the Army (without qualif\dng words) for duty at educational institutions; retu-ed officers are included in this authorization. (6 Comp. Dec, 120, Aug. 15, 1899.) Until the pa-ssage of the act of November 3, 1893, there was no authority of law for the detail of retired officers to such duty with the full pay of their rank, details of this kind being limitei to officers on the active list. "I can not be- lieve that a duty to which for many years only officers on the active list were permitted to be assigned is not active duty or ceases to be such when retired officers are permitted on their own application to undertake it." (U Comp. Dec, 698, May 18, 1905. As to pay cf retired officers detailed to colleges, see cases noted below.) It will be noted that section 1225, Revised Statutes, as amended bv the act of September 26, 1888 (25 Stat., 491), refers to the detail of officers "of the Army," butit was never held to apply to retired officers until amended by the act of No- vember 3, 1893 (28 Stat., 7), so as to pro^■ide that "officers on the retired list of the Army may upon their own application be detailed to isuch duty, and when so detailed .shall receive the full pay of their rank." This appears to have been the first law authorizing the payment of full pay to retired officers on duty at educa- tional institutions, and it would not apply to or affect details under section 1260, Revised Statutes, or the act of May 4, 1880. (23 Comp. Dec, 500.) The act of November 3, 1893, was amended by the act of March 3, 1909. The next legislation on this subject was the act of June 3, 1916. PYom an examination of the various laws rela- tive to the detail of officers to educational in- stitutions, it appears to have been the uniform practice of Congress whenever it intended to provide for the detail of retired officers to desig- nate them specifically and also to stipulate as to the pay they should receive. Section 56 of the act of 1916 makes no specific reference to retired officers or to pay, and Congress did not intend by said section to grant any new authority for the detail of retired officers to educational institutions. Accordingly, held, that the term "commissioned and noncommis- sioned officers of the Armv," as used in section 56, act of June 3, 1916 (39 Stat., 197), does not include retired officers, although in its broad sense the Army of the United States does in- clude officers and enlisted men on the retired list. (23 Comp. Dec, 500.) For other cases, see note to section 1457, Re- vised Statutes. Limitation upon number of officers de- tailed applies both to active and retired List. — The act of November 3, 1893, authorizes the detail of 100 officers from the active list of the Army, but does not require it. Said act leaves it within the discretion of the Presi- dent to make the detail of officers of the Army for colleges wholly from the active list of the Army, or wholly from retired officers, who, "upon their own application," may be detailed for those ser\-ices, or from both lists, in such proportion as he sees fit and as the applications for such detail from the retired officers will allow. No other limit than 100 is set to the number of such officers that can be detailed and these may be taken by the President from either the active or retired list of the Armv, or both. (20 Op. Atty. Gen., 687, Dec. 8, 1893.) Restrictions as to length of service in Army and period of detail apply both to active and retired lists. — The ' ' five years' ser- vice in the Army," as well as the limit of detail to four years, applies to officers detailed from the retired as well as from the active list. (20 Op. Atty. Gen., 687, Dec 8, 1893.) Number of active and retired officers detailed must be apportioned. — By section 1225, Revised Statutes, and the acts of Sep- tember 26, 1888, November 3, 1893, and March 3, 1909, the President may, upon the application of any established military institute, seminary or academy, college or university, withn the United States, ha\ing a certain capacity, detail an officer of the Army on the active or retired list to act as superintendent, or professor thereof, but such officers so detailed shall be apportioned throughout the United States, first, to those State institutions applying for such detail that are re- quired to provide instruction in military tac- 438 The Army. Pt.2. REVISED STATUTES. Sec. 1225, tica under the provisions of the act of Congress of July 2, 1862 (12 Stat., 503), donating lands for the establishment of colleges, etc., and after that said details to be distributed as nearly as may be practicable according to population, etc. (17 Comp. Dec, 691, Mar. 22, 1911.) Officer bound to obey order to act as professor. — \\Tiere an officer of the Army is detailed by peremptory order to act as professor in a college, under the act of July 28, 1866 (14 Stat., 336, sec 26), [embodied in section 1225, Revised Statutes], the order so detailing him is one which he is bound to obev. (Long v. U. S., 8 Ct. Cls., 398, Dec. Term, 1872.) Ser\dce as an instructor in an institution of learning, under a detail pursuant to section 1225, Revised Statutes, as amended, is active service to which a retired naval officer may be ordered in time of war; but to which he could not be as- signed, -without his consent, in time of peace. The act of INIarch 2, 1895, applies to cases where retired officers desire to engage as instructors on their own account in purely private institu- tions where military tactics are not taught, and to which Government officers could not therefore be assigned for duty as such; and said act has no reference to the case where an officer might lawfully be ordered to perform such ser\ice "without his consent. A similar provi- sion to the act of March 2, 1895, is found in section 1260, Revised Statutes, with regard to retired officers of the Army, and Congress has made a distinction between employment under that section and under section 1225. See act of August 6, 1894. (5 Comp. Dec, 326, Dec. 19, 1898. When this decision was rendered, retired officers of the Navy and Marine Corps could not be employed on active duty except in time of war. See note to sec. 1462, R. S.) The act of August 6, 1894, leaves it in the power of the President to detail retired officers of the Army, under the act of May 4, 1880, upon application by the institutions; that is, to make compulsory details. (6 Comp. Dec, 120, Aug. 15, 1899.) Retired officer may be allowed addi- tional compensation by college. — Section 1260, Revised Statutes, refers to additional compensation from the United States, not from the colleges. That this does not refer to any additional compensation from the college, but from the United States, is evident from the lan- guage employed, which does not prohibit the re- ceiving, but the allowing of additional compen- sation. (20 Op. Atty. Gen., 687, Dec. 8, 1893.) Pay of retired officers. — A retired officer of the Navy who, in time of war, is detailed to act as superintendent or professor at any edu- cational institution, as provided by section 1225, Revised Statutes, and the act of Septem- ber 26, 1888 (25 Stat., 491), is engaged in active service and entitled to active-duty pay, under section 1592, Revised Statutes, dmiiig the con- tinuance of the war. (5 Comp. Dec, 326, Dec. 19, 1898.) Officers of the Army on the retired lisi; who, upon their own application, are detailed to educational institutions in accordance with the provisions of the act of November 3, 1893 [as part of the limited num):)er of officers author- ized to be detailed by said act], are entitled to the full pay of their rank. (6 Comp. Dec, 120, Aug. 15, 1899.) When, under the act of November 3, 1893, a retired Army officer is detailed as a professor of military science and tactics at a university located in the Island of Porto Rico, such officer is entitled while so detailed to the full pay of his rank. (17 Comp. Dec, 691, Mar. 22, 1911.) Officers of the retired list detailed for college duties prior to November 3, 1893, and still on duty under such detail, are entitled to full pay only from the passage of the act of that date, under and by virtue of which alone is their right to full pay derived. (20 Op. Atty. Gen., 687, Dec. 8, 1893.) Undersectionl225, as amended byact of Sep- tember 26, 1888, which says nothing about pay, retired officers, if so detailed, would be placed on duty and would thereby ordinarily become entitled to the full pay of their grades (citing Long V. U. S., 8 Ct. Cls., 403, holding that "a retired officer when called into service and assigned to duty is entitled to receive the full pay and the emoluments of his rank "). This view would, however, be subject to modifica- tion in case some statute should require it. The act of May 4, 1880, provides that a retired officer ' ' may receive from the institution to which he may be detailed the difference between his retired and full pay, and shall not receive any additional pay or allowance from the United States. ' ' As the law stood after the act of May 4, 1880, retired officers detailed to educational institutions could not receive full pay of their grade from the United States, and it would not be material whether the detail was compulsory or made upon application of the officers. (See also sec. 1260, R. S.) The act of November 3, 1893, amended section 1225 and entitled retired officers to receive the full pay of their rank, provided the detail is not compulsory, but is made upon the application of said retired offi- cers. The act of August 6, 1894, does not attempt to repeal or modify the act of 1893 in so far as said act of 1893 authorizes full pay for retired officers when they are detailed "upon their own appUcation' ' in making up the maxi- mum of 100 ofhcers, both active and retired, authorized by the act. The act of 1894 still leaves it in the power of the President to detail retired officers under the act of 1880, upon appU- cation by the institutions (or compulsory de- tails), and under section 1260, Revised Statutes, upon apphcation of said retired officers, but when so detailed under the act of 1880 or sec- tion 1260 the officers will not be entitled to any pay or allowance from the United States beyond their pay as retired officers. It is difficult to understand why officers detailed upon their own application under the act of 1893 should be given full pay, and denied it when detailed upon their own appUcation vmder section 1260; or why denied, it when compulsorily detailed under the act of 1880 and other acts; but such must be the construction of the law as it is. (6 Comp. Dec, 120, Aug. 15, 1899.) It will be observed that retired officers detailed to educational institutions under the acts of May 4, 1880 (21 Stat., 113), and May 21, 1904 (33 Stat., 225), receive only their retired pay and such additional compensation or allow- 439 Sec. 1225. Pt. 2. REVISED STATUTES. The Army. ances as may be paid by the institution to which cK>lail(Hl. (2S C'omp. Doc. 500.) Pay of retired Army officers governed by general laws relating to active duty. — A retired oliicer of the Army with the rank of colonel who was detailed under the act of November 3, 1S93, for duty at an educational institution, was while so detailed "assigned to active duty" within the meaning: of the act of March 2, 1905 (33 Stat., 831), and therefore, under the pro\'ision8 of said act, he was only entitled while so detailed to the full pay and allowances of a major on the active list. (11 Comp. Dec, 698, May 18, 1905.) The act of March 2, 1905 (33 Stat., 831), refers to the pay of retired odicers of the Army when "assigned "to active duty; the term " assigned " includes "detailed," as a detail is only one method of assignment ; the act of March 2. 1905, therefore applies to retired officers detailed to duty at educational institutions, as such duty is to be regarded as "active duty," and officers so assigned to active duty are entitled only to the rates of pay authorized by that act. (11 Comp. Dec., 098, May 18, 1905.) An officer of the Army on the retired Ust detailed to duty at an ediicational institution under the act of November 3, 1893, who was advanced from the rank of major to the rank of Ueutenant colonel, under the act of April 23, 1904 (33 Stat., 264), on account of civil-war servace, should be regarded for pay purposes as a Ueutenant colonel, and under the act of ^larch 2, 1905 (33 Stat., 831), he is, while on such duty, entitled to receive the full pay and allowance of a major on the active List. (16 Comp. Dec, 716, May 13, 1910.) Pay of retired Navy officers not gov- erned by general laws relating to active duty. — A retired officer of the Navy detailed to service under the act of March 2, 1895, dur- ing tlie period February 7, 1903, to September 30, 1903, is not entitled to active-duty pay and commutation of quarters. (Comp. Dec, July 18, 1905, 53 S. and A. Memo., 572.) The act of June 7, 1900 (31 Stat., 703), which authorized the detail of any retired naval of- ficer to active duty (during a period of twelve years from its date), with "the pay and allow- ances of an officer of the active list of the grade from wliich he was retired," did not apply so as to entitle the officer to active-duty pay dur- ing his detail to active duty under the act of March 2, 1895. (Comp. Dec, July 18, 1905, 53 S. and A. Memo., 572.) The act of March 2, 1895, is a special statute, while the later one of June 7, 1900, was general, and under establi.«lied rules a subsequent act treating a subject in general terms and not ex- pressly contradicting the provisions of a prior special statute is not to be considered as in- tended to affect the more particular and specific {)ro\dsions of the earlier act, unless it is abso- utely necessary so to construe it in order to give its words any meaning at all. As the act of March 2, 1895, under which this officer was detailed, provides that while so detailed he shall be allowed no additional pay, he is not entitled to active-duty pay and commutation of quarters. (Comp. Dec, July 18, 1905, 53 S. and A. Memo., 572.) As to interpretation of act of March 2, 1895, see 5 Comp. Dec, 326, noted above, under "Officer bound to obey order to act as pro- fessor." Commutation of quarters. — Under the provision of the act of November 3, 1893, that retired ofiicers of the Army detailed at educa- tional institutions "shall receive the full pay of their rank," but which does not include allowances, such officers so detailed are not entitled to commutation of quarters. (6 Comp. Dec, 506, Nov. 23, 1899; Spencer v. U. S., 41 Ct. Cls., 430.) The act of May 4, 1880, prohibits both pay and allowances, while the act of November 3, 1893, merely removes the restriction as to pay, but says nothing about allowances. This omis- sion is significant and controlling in the con- struction of the act of 1893. The general rule in military matters is that where the word pay is used alone, it does not include allowances. (6 Comp. Dec, 506, Nov. 23, 1899.) ^^^lere an officer of the Army is detailed by peremptory order to act as professor in a college under the act of July 28, 1866 (14 Stat., 336, sec 26) [embodied in section 1225, Revised Statutes], he is entitled to fuel and quarters or commutation therefor, and his right to com- mutation is not affected by the fact that his detail was procured by the president of the college with his cooperation. In such a case, if there be no quarters at the place, it will be a station without troops within the meaning of the Army Regulations , and he need not make reqmsition for quarters. (Long i'. U. S., 8 Ct. Cls., 398, Dec. Term, 1872.) An officer relieved from duty at a station where he had quarters in kind, and ordered to report in person for duty at a college during vacation, is not entitled to commutation of quarters prior to the date on which he reports in person at the college. A report by letter does not have the effect of placing him on duty at the college in such a sense as to entitle him to commutation of quarters at that station. (4 Comp. Dec, 254; Nov. 26, 1897.) Medical attendance. — A retired officer of the Army wlio is detailed as a professor at an educational institution is not entitled to reim- bursement for expenditures for medicines or for medical attendance. (7 Comp. Dec, 89, Aug. 14, 1900.) It seems clear that medicines and medical attendance can not be considered as part of the pay of an officer, and they must therefore be regarded as in the nature of an allowance, which is not authorized to be given to a retired officer detailed vuider the act of November 3, 1893. (7 Comp. Dec, 89, Aug. 14, 1900.) A retired colonel or Jievitenant colonel of the Army, detailed under the act of November 3, 1893, to duty at an educational institution, being entitled under the provisions of the act of March 2 1905 (33 Stat., 831), to the full pay and allowances of a major on the active list, is entitled to such medical attendance and medi- cines at the expense of the United States as are authorized for a major on the active list; but under the provisions of said act of March 2, 1905, a retired officer above the rank of colonel is not entitled while so detailed to said allow- ances. (11 Comp. Dec, 758, June 14, 1905.) 440 The Army. Ft. 2. REVISED STATUTES. Sec. 1229. Mounted pay. — Cavalry and Field Artillery oflicers on the active list of the Army below the grade of major, who are detailed at educational institutions, are required to be mounted during such detail within the meaning of the act of May 11, 1908 (35 Stat., 108), and if they provide 8uital)le mount or mounts at their own expense they are entitled to the addition to their pay on that account and to the allowances for mounts as authorized by law. (16 Comp. Dec, 638, Mar. 31, 1910.) Detail of retired Marine officer. — The act of March 2, 1895 (above quoted) does not appear to have been affected by any subse- quent legislation in so far as officers of the Marine Corps are concerned. The Navy De- partment is therefore of opinion that a retired Marine officer is eligible under that act to detail to service as a teacher or professor in any school or college. (File 9736-22, Aug. 12, 1911.) There appears to have been no change in the act of March 2, 1895, so far as retired officers of the Marine Corps are concerned. As specific authority thus exists for the detail of the retired Marine officer concerned, it is unnecessary to pass upon the question whether said officer may properly be considered an officer of the Navy within the intent of the act of April 21, 1904 (above quoted). The act of March 2, 1895, as construed by the Attorney General, does not prohibit additional compensation from the college, but from the United States. (File 11112-649, Sept. 8, 1916.) Detail of petty officer in the Navy. — There is no statutory authority for detailing a petty officer on the active list to an educational institution as instructor therein. However, the act of April 21, 1904 (above quoted), includes retired petty officers in the Navy by the phrase " retired officers and noncommissioned officers of the Army and Navy. " It follows that a retired petty officer of the Navy may be detailed as instructor in an educational institution, and while so detailed such institution is, under the terms of the act cited, reqiured to pay him commutation of quarters. Further, the pro- hibition in said act against payment of compen- sation from the Government, other than retired pay, to the ''noncommissioned" officers so detailed, does not prohibit the acceptance by such noncommissioned or petty officers of addi- tional compensation from the institution to which detailed. It should be noted that sec- tion 1225, Revised Statutes, as amended, limits the details in question to colleges or umversities having capacity to educate at the same time "not less than 150 male students," and pre- vents details thereunder of retired noncommis- sioned or petty officers unless they "are willing to accept such position." (File 7657-361, Ma> 6, 1916.) Sec. 1229. [Dismissal of officers in military or naval service.] The Presi- dent is authorized to drop from the rolls of the Army for desertion any officer who is absent from duty tliree months without leave ; and no officer so dropped shall be eligible for re-appointment. And no officer in the military, or naval service shall in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof. — (Art. of war, 99; art. of war, 106; 15 July, 1870, c. 294, s. 17, V. 16, p. 319; 13 July, 1866, c. 176, s. 5, v. 14, p. 92.) By act of April 2, 1918 (40 Stat., 501), the President was authorized "to drop from the rolls of the Navy or Marine Corps any officer thereof who is absent from duty without leave for a period of three months or more, or who, having been found guilty by the civil authorities of any offense, is finally sentenced to confinement in a State or Federal penitentiary : Provided, That no officer so dropped shall be eligible for reappointment." Dismissals from the naval service are further provided for by section 1624, Revised Statutes, article 36. Dismissals from the Army are further provided for by section 1342, Revised Statutes, article 118, as amended by act of August 29, 1916 (39 Stat., 669). Dropping an officer from the rolls of the Army is authorized, where he has been absent in confinement in a prison or penitentiary for more than three months after final con- viction by a civil court of competent jurisdiction. (See act Jan. 19, 1911, 36 Stat., 894; and art. 118, sec. 1342, R. S., as amended by act Aug. 29, 1916 (39 Stat., 669.) Historical note. — As recommended to Con- gress by the Commission to Revise the Laws (1872), this section read as follows: "The Presi- dent is authorized to drop from the rolls of the Army for desertion any officer who is absent from duty three months without leave; and no officer so dropped shall [be eligible for re-ap- pointment] ever be restored to the m ilitary service, except by a re-appointment confirmed by theSenate. But such dismissal shall be subject to the provi- sions of the next section." The "next section" contained provisions similar to those of article 37 of the Articles for the Government of the Navy. (Sec. 1624, R. S.) In the notes to the proposed section (Commrs. Draft, R. S., pp. 610, 611), it was stated: "The act of 3 March, 1865, ch. 79, §12, vol. 13, p. 489, provides: 'That in case any officer of the military or naval service who may be hereafter dismissed by authority of the Presi- dent shall make an application in writing for a trial, setting forth under oath that he has been wrongfully and unjustly dismissed, the President shall, as soon as the necessities of the public service may permit, convene a court-martial to try such officer on the charges on which he was dismissed. And if such court- 441 Sec. 1342. Pt.2. REVISED STATUTES. The Army. martial shall not award dismi'sal or death as the punLshraent of such olticer, the order of dismissal shall be void. And if the court- martial aforesaid shall not be conveneroval of the President, may be cited : "An officer of the Navy can not assume com- mand of Army forces on shore, nor can an officer of the Army assume command over any ship of the Navy, or over its officers or men afloat, ex- cept in either case by special authority for a particular service; birt when officers of the Navy are on duty on shore with the Army, they shall be entitled to the precedence of the rank in the Army to which their own corresponds, except command as aforesaid, and this precedence will regulate their right to quarters." "Similarly the regulations governing the re- lationship of Army and naval officers while engaged in convoy operations or in the trans- portation of Army forces aboard naval vessels which have recently been amplified, indicate again the authority of the President in the mat- ter of determining questions of command. Therefore, it appears clear to this department that the President may issue immediately whatever regulations he may deem wise on the subject of command of joint forces of the Army, Navy, and Marine Corps, and no enactment of Congress can increase the power which he already possesses over this subject matter." (Secretary of the Navy to the Secretary of War, Mar. 4, 1918, file 3980-1402:3.) 444 TITLE XV. THE NAVY. Chap. Sec. 1. Organization 1362-1427 2. General provisions relating to officers 1428-1442 3. Retired officers of the Navy 1443-1465 4. Rank and precedence, promotion and advancement 1466-1510 5. The Naval Academy 1511-1528 6. Vessels and navy yards 1529-1546 7. General provisions relating to the Navy 1547-1555 8. Pay, emoluments, and allowances 1556-1595 9. The Marine Corps 1596-1623 10. Articles for the Government of the Navy 1624 445 CHAPTER ONE. ORGANIZATION. organization of. appointmenta in, how Seo. 1362. Grades of line officers. 1363. Number of line officers. 1364. WTien number of line officers may be ex- ceeded. 1365. Selection of rear admirals during war. 1366. Promotion to rear admiral during peace. 1367. Secretaries to Admiral and \'ice Ad- miral. 1368. Medical Corps; 1369. Medical Corps; made. 1370. Medical Corps; qualifications for assist- ant surgeons. 1371. Medical Corps; promotions in. 1372. Medical Corps; rank of assistant surgeons in case of delayed examination. 1373. Medical Corps; surgeon of the fleet. 1374. Medical Corps; duties of surgeon of the fleet. 1375. Medical Corps; assistant to Bureau of Medicine and Surgery. 1376. Supply Corps; organization of. 1377. Supply Corps; no promotion or appoint- ment in certain grades until reduced. 1378. Supply Corps; appointments in, how made. 1379. Supply Corps; qualifications for assistant paymasters. 1380. Supply Corps; promotions in. 1381. Supply Corps; acting appointments on ships at sea. 1382. Supply Corps; paymaster of the fleet. 1383. Supply Corps; bonds of officers. 1384. Supply Corps; new bonds required. 1385. Supply Corps; bonds not affected by new commissions. 1386. Supply Corps; when clerks allowed offi- cers. 1387. Supply Corps; when clerks not allowed officers. 1388. Supply Corps; clerks to passed assistant and assistant paymasters. 1389. Supply Corps; loans to officers prohib- ited. 1390. Engineer Corps; organization of. 1391. Engineer Corps; appointments in, how made. 1392. Engineer Corps; qualifications for ap- pointment and promotion. 1393. Engineer of the fleet. Sec. 1394. Engineer Corps; appointments from cadet engineers. 1395. Chaplains; number and appointment of . 1396. Chaplains; qualifications of . 1397. Chaplains; form of worship. 1398. Chaplains; annual report by. 1399. Professors of mathematic." ; number of . 1400. Professors of mathematics; appointment of. 1401. Professors of mathematics; duties of. 1402. Construction Corps; number and appoint- ment of naval constructors. 1403. Construction Corps; appointment of as- sistant naval constructors. 1404. Construction Corps; duties of . 1405. Warrant officers; number and appoint- ment of. 1406. Warrant officers; title. 1407. Warrant officers; seamen promoted for heroism; medals of honor. 1408. Mates; rating of enlisted men as. 1409. Mates and warrant officers; not dis- charged from enlistment. 1410. Acting officers; petty officers; secretaries and clerks. 1411. Acting assistant surgeons. 1412. Volunteer officers; transfer to Regular Navy, etc. 1413. Civil Engineer Corps and Storekeepers. 1414. Civilian storekeepers on foreign stations. 1415. Civilian storekeepers to give bond. 1416 . Civil offices at yards may be discontinued . 1417. Enlisted men, number of; advancement to warrant officers. 1418. Enlistment; age and term of. 1419. Enlistment, minors, consent of parents and guardians. 1420. Enlistment; prohibited classes. 1421. Enlisted men; transfer from military to naval service. 1422. Enlistment; detention after expiration of; transportation home. 1423. Enlisted men; subject to regulations while sent home or detained. 1424. Enlisted men; limit of detention. 1425. Enlistment; shipping articles to contain provisions of preceding sections. 1426. Enlisted men; honorable discharge of. 1427. Enlisted men; form of honorable dis- charge. 446 The Navy. Ft. 2. REVISED STATUTES. Sec. 1362. Sec. 1362. [Grades of line oflBlcers. Superseded.] This section provided as follows: "Sec. 1362. The active list of the line officers of the Navy of the United States shall be divided into eleven grades, as follows, namely: "First. Admiral. "Second. Vice Admiral. "Third. Rear admirals. "Fourth. Commodores. "Fifth. Captains. "Sixth. Commanders. "Seventh. Lieutenant commanders "Eighth. Lieutenants. "Ninth. Masters. "Teath. Ensigns. "Eleventh. Midshipmen. ^^ Provided, That vacancies occurring in the grades of Admiral and Vice Admiral shall not be filled by promotion, or in any other manner; and that when the offices of said grades shall become vacant, the grade itself shall cease to exist.';— (16 July, 1862, c. 183, s. 1, v. 12, p. 583. 21 Dec, 1864, c. 6, e. 1, v. 13, p. 420. 25 July, 1866, c. 231, 8. I, V. 14, p. 222. 2 Mar., 1867, c. 174, s. 1, V. 14, p. 516. 24 Jan., 1873, c. 62, v. 17, p. 418). It was superseded by the Navv personnel actj March 3, 1899, section 7 (30 Stat., 1005), which provided that "the active list of the line of the Navy" shall be composed of Rear admirals; Captains; Commanders; Lieutenant commanders ; Lieutenants ; Lieutenants (junior grade); and Ensigns. Rear admirals were divided into two grades for pay purposes by section 7 of the personnel act above cited, rear admirals of the "nine lower numbers " being given the pay and allowances of brigadier generals in the Army, while rear admirals of the upper nine numbers were not specifically provided for, but, under the general provisions contained in section 13 of the same act they received the same pay and allowances as officers of corresponding rank in the Army, namely, major general, that being the rank corresponding with the rank of rear admiral according to section 1466, Revined Statutes. This division of rear admirals into two grades for pay purposes was continued in effect by the act of May 13, 1908 (35 Stat. 127), which provided different rates of pay for "rear admiral, first nine," and "rear admiral, second nine." (See Terry v. U. S., 39 Ct. Cls., 353.) By act of August 29, 1916 (39 Stat., 576, 577), provision was made for increasing the number of officers allowed in the various grades and ranks of the Navy, and it was further enacted that "hereafter pay and allowances of officers in the upper half of the grade or rank of rear admiral, including the staff corps and including staff officers heretofore permanently com- missioned with the r.ank of rear admiral, shall be that now allowed by law for the first nine rear admirals, and the pay and allowances of officers in the lower half of the grade or rank of rear admiral, including the staff corps, shall be that now allowed by law for the second nine rear admirals. ' ' The grade of commodore was omitted from the active list by the Navy personnel act, section 7, above cited. That act, however, while thus abolishing the grade of commodore on the active list, did not thereby affect the rank of officers then on the retired list having the rank of commodore, and it contained several provisions for the future retirement of officers with that rank under certain prescribed con- ditions, viz, by section 7 of said act (30 Stat., 1005) it was provided "that nothing contained in this section shall be construed to prevent the retirement of officers who now have the rank or relative rank of commodore with the rank and pay of thatgrade; " by section 8 (30 Stat., 1006), it was provided that officers retired on their own application for the purpose of creating a pre- scribed minimum of annual vacancies should be placed on the retired list with the rank and pay of the "next higher grade, as now existing, including the grade of commodore;" by sec- tion 9 (30 Stat., 1006), it was provided that officers retired by selection for the purpose of creating a prescribed minimum of annual vacancies should be placed on the retired list with the rank and pay of the "next higher grade, including the grade of commodore, which is retained on the retired list for this purpose. " None of these provisions for retirement with the rank of commodore is now in force. By section 11 of the personnel act (30 Stat.j 1006), it w&s provided that officers having Civil-War service should, when retired, be retired with the rank "of the next higher grade; " under that section, officers with the rank of captain on the active list were retired with the rank of rear admiral and not commodore. Under section 1481, Re- vised Statutes, certain staff oflicers are retired with the rank of commodore, this being the only case in which any officers are now placed on the retired list with that rank. (In this connection, see notes to sees. 421 and 1473, R. S., concerning the retirement of chiefs of bureaus in the Navy Department.) The naval appropriation act of May 13, 1908 (35 Stat., 127), which established new rates of pay for the Navy, provided that "hereafter all commissioned officers of the active list of the Navy shall receive the same pay and allow- ances according to rank and length of service, and the annual pay of each grade shall be as follows: * * * rear admiral, second nine, or commodore, six thousand dollars." How- ever, there were no commodores on the active list at the time of this enactment and none have since been appointed. The grade of Admiral ceased to exist, in accordance with section 1362, Revised Stat- utes, February 13, 1891, in consequence of the death of Admiral David D. Porter. The grade of Vice Admiral had previously ceased to exist, Vice Admiral Stephen C. Rowan having retired February 26, 1889, and died March 31, 189 0. However, by act March 2, 1899 (30 Stat., 905), the President was authorized to appoint an "Admiral of the Nav>'," with the condition that "whenever such office shall be vacated by death or otherwise the office shall cease to exist." The following day, March 3, 1899, the Navy personnel act became law, providing, 447 Sec. 1362. PL 2. REVISED STATUTES. The Navy. as above set forth, what officers should compose "the active list of the line of the Navy," and making no mention of "Admiral of the Navy." In anticipation of a possible decision that this omission of the grade of "Admiral of the Navy" from the personnel act impliedly repealed the prior enactment of March 2, 1899, authorizing tne appointment of such officer, the said act of March 2, 1899, authorizing the appointment of an "Admiral of the Navy," was reenacted in the same words as a clause in the naval appropriation act of March 3, 1899 (30 Stat. 1045). The grade of "Admiral of the Na\'y" accordingly continued as part of the active list of the Navy until such office was "vacated" by the death of Admiral George Dewey on January 16, 1917, when such grade in accordance with law ceased to exist. The naval appropriation act of March 3, 1915 (38 Stat., 941, 942), provided that the com- manders in chief of the Atlantic, Pacific, and Asiatic Fleets shall have the rank of admiral, and the officers second in command of said fleets shall have the rank of vice admiral, from the date each such officer shall assume duty as commander in chief or second in command, respectively, until his relinquishment of such duty ; and that ' ' the grades of admiral and vice admiral in the Navy are hereby reestablished and authorized for the purposes of this section. " It was further provided that when an officer is detached from duty as such commander in chief or second in command, "he shall return to his regular rank in the list of rear admirals ' ' from which appointed . This act has been construed as not investing the officers concerned with the offices of admiral and vice admiral, but merely as conferring upon them temporarily the rank and pay of those offices, while they continued at the same time to be officers of the grade of rear admiral. (21 Comp. Dec, 840.) See note below, "'Title,' 'grade,' 'rank,' and 'office' defined and distinguished." By act of May 22, 1917, section 18 (40 Stat., 89) the pro\'ision in the act of March 3, 1915, quoted in the preceding paragraph, was ex- pressly repealed, and in lieu thereof it was proAdded that the President be authorized to designate six officers of the Navy for the com- mand of fleets or subdivisions thereof, and that, after such designation, from the date of assum- ing such command until relinquishing thereof, not more than three of such officers shall each have the rank and pay of an admiral and the others shall each have the rank and pay of a vice admiral; and that "the grades of admiral and \ice admiral are hereby authorized and continued for the purpose of this Act;" pro- \ided, that in time of war the selections under the provisions of said act shall be made from the grades of rear admiral or captain on the active list of the Navy, and that in time of peace such selections shall be made from among the rear admirals on the active list of the Navj'; pro- vided further, that nothing contained herein shall create any vacancy in any grade in the Navy or increase the total number of officers authorized by law; provided further, that when any officer •nith the rank of admiral or vice ad- miral is detached from the command of a fleet or subdivision thereof he shall return to his regular rank in the list of officers of the Navy and shall thereafter receive only the pay and allowances of such rank ; and provided further that nothing in said act shall be held or construed as amend- ing or repealing sections 1434, 1463, and 1464 of the Re\Tsed Statutes. By act of August 29, 1916 (39 Stat., 558), it was provided that the Chief of Naval Opera- tions, while so serving, shall have the rank and title of admiral, to take rank next after The Admiral of the Navy, and if retired while so serving he shall be retired with the lineal rank and retired pay to which he would be entitled had he not been serving as Chief of Naval Operations. - The grades of master and midshipman as part of the active list of the line, under sec- tion 1362, Revised Statutes, were abolished, and the grades of lieutenant (junior grade) and junior ensign, created by actof March3, 1883 (22 Stat., 472), which had the effect of changing the title "master" to "lieutenant (junior grade)" and the title "midshipman" to ''ensign" (see Schuetze v. U.S., 24 Ct. Cls., 299; Weller v. U. S., 41 Ct. Cls., 324, 337), and the grade of junior ensign thus created was abolished by act of June 26, 1884, section 2 (23 Stat., 60). The title of ''midshipman" was applied to students at the Naval Academy by actof July 1, 1902(32 Stat., 686). "Midshipmen are, by law, officers in a qualified sense. They are classed as being of the line. " (Art. R-1002, par. 3, Navy Regu- lations, 1913. See Weller v. U. S., 41 Ct. Cls., 324; Schuetze v. U. S., 24 Ct. Cls., 299.) Who are line oflB.cers; status of warrant and commissioned warrant officers. — In 1862 Congress passed an act purporting to estab- lish the grade of line officers in the Navy. Prior to that time there is little or nothing in the stat- utes about the line of the Navy. In that stat- ute, without explaining which of the v^arious meanings of the word "line" Congress had in mind, it left no doubt as to the officers it intended to embrace among the line officers of the Navy, for it mentioned them all. This specification was practically repeated in the acts of July, 1866, in the Revised Statutes of 1873, in an act of August 5, 1882, and in the naval personnel act of March 3, 1899. (22 Op. Atty. Gen., 620.) It is obvious that all officers specified by Congress as line officers were thereby distin- guished from all officers not specified, whether those officers were staff officers, properly so called, or officers belonging to special corps, such as the Pay Corps, the Medical Corps, and the like, warrant officers, or petty officers. (22 Op. Atty. Gen., 620.) "From the earliest times the officers of the Navy have been divided into commission offi- cers, warrant officers, and petty officers, the difference being rather a difference in the mode of the appointment or designation than one growing out of the function to be performed. The commission officers were those holding commissions from the President like the com- missions of other officers of the United States; warrant officers had no such commissions but only warrants given by the President or Navy Department; and petty officers were rated or designated by the commanders of their respec- tive vessels from among the enlisted men on board." (22 Op. Atty. Gen., 620.) 448 The Navy. Pt.2. REVISED STATUTES. Sec. 1362. It seems to be ciear that, within the meaning of the Revised Statutes and subsequent laws, line officers of the Navy are the officers specified as such by Congress, and that no others are such officers of the line. It follows that no warrant officers are, within 'the meaning of those laws, officers of the line. (22 Op. Atty. Gen., 620.) However, Congress in speaking of "the line" evidently does not mean "the line of com- mand," and there is nothing in its classification to indicate an intent to make unlawful the exer- cise of command by boatswains and gunners. "It would seem that boatswains and gunners have been in the line of command as a matter of fact for a century. Both of them are officers whose functions and business are ancient and are involved in the customs of the British and American navies. As a navy is an organic growth, its antecedents and customs should not be ignored * * *. From all that has been said I think we may conclude that treating those officers as in the line of command was not with- out lawful authority before 1862 * * *. These things being so, I think those officers are not improperly; classed in the Regulations as officers of the line, and that they can properly be given the star upon their uniforms." (22 Op. Atty. Gen., 620.) "The machinist has existed in the Navy for Bome time, of course, and yet for no great period. He has been a rated or petty officer (Art. 794, Regulations of 1893). The personnel act of this year [1899] creating the office of war- rant machinist [now "machinist"] shows plainly that Congress did not intend to place the machinists in its own list of line officers, for it repeated that Ust in section 7, and omitted them. They had previously been con- nected with the Engineer CJorps or its business, a staff or special corps, no part of which had been exercising miUtary command. The per- sonnel bill has not been regarded as ipso facto transferring all the officers of that corps to the line of command. (See General Orders 524.) As these machinists do not appear to have pre- viously exercised miUtary command, I think that, before they are to be held entitled to command, and others, including senior officers, held to be under obUgations to obey them, something positive to that effect should be pro- duced from the personnel acts or from the gen- eral nature of their duties or elsewhere. The presumption is the other way, and I find noth- ing to overcome it." (22 Op. Atty. Gen., C20.) Since the above opinion was rendered by the Attorney General, it has been held by the Navy Department (file 17789-15, Dec. 13, 21, 1909) that machinists should be classified as line officers, the same as boatswains and gunners, and accordingly it was provided by Navy Regulations that chief boatswains, cliief gun- ners, and chief machinists (who are commis- sioned officers, designated by the Navy Regu- lations as "commissioned warrant officers," Art. R-1013, par. 2, Navy Regs., 1913), and boatswains, gunners, and machinists (who are warrant officers), are line officers of the Navy (Art. R-1013, par. 3, Navy Regs., 1913); but that "so far as succession to command or succession to duties aboard ship outside the engineer department are concerned chief ma- chinists and machinists are restricted to the performance of engineering duty only." (Art. R-1013, par. 3, Navy Regs., 1913.) As to the appointment of warrant officers and commissioned warrant officers, see note to sec- tion 1405, Revised Statutes. "Title," "grade," "rank," and "office" defined and distinguished. — Title is the name by which an office or the holder of an office is designated and distinguished in the statute and by which the officer has a right to be known and addressed; grade expresses one of the divisions or degrees in the particular department or branch of the service according to which offices therein are classified or graded ; and rank, which originally signified that which determines the right to command and is still an inseparable incident to such right, expresses the position of officers of different grades or of the same grade in point of authority, prece- dence, or the Like, of one over another. (16 Op. Atty. Gen., 414.) The word "rank" is sometimes used, how- ever, as synonymous with "grade"; thus, when it is said that a particular officer shall have the rank of captain, commander, and so forth, there being no qualifying word, it is used in the sense of grade, and this whether the rank is perma- nently or temporarily given. (16 Op. Atty. Gen., 414; see also Wood v. U. S., 15 Ct. Cls., 151, 160.) In some cases the same word or appellation may express, aUke, title, grade, and rank with clearness. Thus, in section 1362, which pro- vides that "the active Ust of the line officers of the Navy of the United States shall be divided into eleven grades, as follows, namely," etc., each of the words " Admiral," and " Vice Admiral," expresses the title of the officer hold- ing either of those respective positions, his grade, and his rank; in other words, the name hj which he is entitled to be addressed, the division or degree in the line of the Navy to which he belongs, and the rank which he holds in it. If, however, there were more than one officer of the same title and grade, it would not necessarily express rank. Thus, "rear ad- miral," which is a grade composed of more officers than one, each having a right to the same title, does not express the rank which they hold inter sese, although it expresses the rank so far as those above and below that grade are concerned. (16 Op. Atty. Gen., 414.) "Grade is a step or degree in either office or rank, and has reference to the divisions of the one or the other or both, according to the con- nection in which the word is employed." (Wood-D. U.S.,15Ct.Cls., 151, 160; aftu-med 107 U. S., 414; seealso Moseri;. U. S., 42 Ct. Cls., 86; Thornley v. U. S., 18 Ct. Cls., 111.) The distinction between rank and office is more clearly apparent with reference to staff officers than to officers of the line, because in the latter case the words used to designate the rank and the office are usually the same, while in the former case they are always different. (Wood V. U. S., 15 Ct. Cls., 151, 159.) While "grade" has the same meaning as "office," "rank" is merely a classification to fix the position of officers Avith respect to other officers in the same or in other grades, as to command, precedence, privilege, or pay. "Rank" may be conferred by mere notinca- 449 Sec. 1363. PL 2. REVISED STATUTES. The Navy. tion, and without cither examination, con- firmation, or commission (citing Gen. Wood's Case, 15 Ct. Cls., 151, 159; Wood v. U. S., 107 U. S., 414; 20 Op. Atty. Gen., 358, 362, 363; 19 Op. Atty. Gen., 169; 27 Op. Atty. Gen., 376). So also, while "grade " is only partially, "rank " is wholly, witliin the control of Congress (citing Wood V. U. S., 107 U. S., 414, 417; Sen. Rept. No. 2163, 3Sth Cong., 2d sess.). But whenever Congress creates a new gi*ade or rank, without making any provision for filling it, the selec- tion, in the case of a vacancy in grade, is made by the President, by and with the ad\dce and consent of the Senate (citing 29 Op. Atty. Gen., 117); wliile in the case of a vacancy in rank it is made by the President as Commander in Chief of the Navy, without any action on the part of the Senate (citing Gen. Ainsworth's Case, 22 Op. Atty. Gen., 480). (Op. Atty. Gen., Dec. 27, 1916, file 28687-4:8.) Rank is often used to express something different from office. It then becomes a desig- nation or title of honor, dignity, or distinction conferred upon an oflicer in order to fix his rela- tive position with reference to other officers in matters of privilege, precedence, and some- times of command, or by which to determine his pay and emolimients. (Wood v. U. S., 15 Ct. Cls., 151, 159.) In some cases, officers of the line have a rank assigned to them different from that of the title of their office. Congress has frequently exer- cised the power of changing the mere rank of officers, without invoking the constitutional power of the Executive to appoint the incum- bents to new offices. Accordingly, held that when a line officer is retired upon a higher rank pursuant to act of Congress, as a reward for serv- ices rendered in battle, his office remains the same as it was on the active list, but he acquires a higher rank without in any sense being ap- gointed to a new office. (Wood v. U. S., 15 Ct. Is., 151, 159, 161, 162; affirmed 107 U. S., 414.) The titles or names of offices to which line officers are appointed are employed also as the designation of rank, and when no other rank is conferred upon them the titles of their respec- tive offices also express their rank; but it does not follow that rank and office are therefore always identical, and in point of fact they are not so. (Wood V. U. S., 15 Ct. Cls., 151, 158, 159.) The office remaining the same, the officer may have a different rank conferred on liim, as a title of distinction, to fix his relative position with reference to others. (Wood v. U. S., 107 U. S., 414.) The word "grade" in Revised Statutes, sec- tion 1588, which fixes the pay of retired officers of the Navy at 75 per cent of the pay of the grade or rank held by them at the time of re- tii-ement, refers to the di\dsions of officers into five-year periods of service. (Rutherford v. U. S., 18 Ct. Cls., 339.) Where the law provided that certain officers should have "the highest rates of pay attached to their respective grades," it was held that the officers in question were thereby entitled to the highest pay of their rank, the court saying: "A grade is a step in a series, a rank; * * * a grade is a rank, and in oiu- opinion Congress in- tended to give plaintiff the liighest pay of his rank." (Schuetze v. U. S., 24 Ct. Cls., 299.) For other cases, see notes to sections 421, 422, 423, and 1457, Revised Statutes. Relative rank bet-ween Army and Navy officers. — See section 1466, Revised Statutes. Sec. 1363. [Number of line officers. Superseded.] This section provided as foUo-ws: "Sec. 1363. There shall be allowed on the active list of the line officers of the Navy one Admiral, one Vice-Admiral, ten rear-admirals, twenty-five commodores, fifty captains, ninety commanders, eighty lieutenant-commanders, two hundred and eighty lieutenants, one hun- dred masters, and one hundred ensigns; and no promotion to the grade of lieutenant-com- mander shall be made until the number of such grade is reduced below eighty." — (25 July, 1866, c. 231, s. 1, v. 14, p. 222. 15 July, 1870, c. 295, 8S. 9, 10, v. 16, p. 333.) It -was amended by act of August 5, 1882 (22 Stat., 286), which reduced the number of officers in the various gi-ades of the line to the following: Rear admirals, 6; commodores, 10; captains, 45; commanders, 85; lieutenant com- manders, 74; lieutenants, 250; masters, 75; and ensigns, 75. It was superseded by the Navy personnel act of March 3, 1899, section 1 of which act (30 Stat., 1004) transferred the officers of the Engi- neer Corps of the Navj' to the line, and section 7 of which act (.30 Stat., 1005) provided that "the active list of the line of the Navy, as consti- tuted by section one of this act, shall be com- posed of" the follo^\^ng: 18 rear admirals, 70 captains, 112 commanders, 170 lieutenant com- manders, 300 lieutenants, and not more than a total of 350 lieutenants (junior grade) and ensigns. The number of line officers was in- creased by act of March 3, 1903 (32 Stat., 1197), which authorized 30 additional lieutenant com- manders, in all 200; 50 additional lieutenants, in all 350; and such total numbers of lieuten- ants (junior grade) and ensigns as may qualify for said grades under existing law. The nxunber of line officers was again in- creased by act of August 29, 1916 (39 Stat., 576, 577), which provided that "hereafter the total number of commissioned officers of the active list of the Une of the Navy, exclusive of commis- sioned warrant officers, shall be four per centum of the total authorized enlisted strength of the active list, exclusive of the Hospital Corps, prisoners undergoing sentence of discharge, enlisted men detailed for duty with the Naval Militia, and the Fljdng Corps: Provided, That the total number of commissioned line officers on the active Ust at any one time, exclusive of commissioned warrant officers, shall be dis- tributed in the proportion of one of the grade of rear admiral to four in the gi'ade of captain, to seven in the grade of commander, to fourteen in the grade of lieutenant commander, to thirty- two and one-half in the grade of lieutenant, to forty-one and one-half in the grades of Ueuten- ant (junior grade) and ensign, inclusive: 450 The Navy. Pt.2. REVISED STATUTES. Sec. 1363. Provided further, That lieutenants (junior grade) shall have had not less than three years' service in that gi-ade before being eligible for promotion to the grade of lieutenant. * * * When there is an odd number of officers in the grade or rank of rear admiral in the line or in each corps, the lower di^dsion thereof shall in- clude the excess in number, except where there is but one. Whenever a final fa-action occurs in computing the authorized number of any corps, gi-ade or rank in the naval ser\-ice, the nearest whole number shall be regarded as the author- ized number: Provided, That at least one officer shall be allowed in each grade or rank. For the purpose of determining the authorized number of officers in any grade or rank of the line or of the staff corps, there shall be excluded from consideration those officers carried by law as additional numbers, including staff officers heretofore permanently commissioned with the rank of rear admiral, and nothing contained herein shall be held to reduce below that here- tofore authorized by law the number of officers in any grade or rank in the staff corps. ' ' (As to the total authorized number of enlisted men, see note to sec. 1417, R. S.) The act of Mav 22, 1917 (40 Stat., 84), as amended by act of July 1, 1918 (40 Stat., 715), which authorized a temporary increase in the number of enUsted men, pro\dded (sec. 4) for the temporary appointment and promotion of addi- tional commissioned officers, based upon such temporary increase in the enlisted strength, such additional tempoi-ary officers to be distributed between the various grades and ranks, not above lieutenant commander, in accordance with the provisions of the act of August 29, 1916 (above cited). The same act and section further pro- vided for temporary appointments and promo- tions to fill, during the period of the war, the deficiency existing prior to May 22, 1917, in the total number of commissioned officers authorized by the act of August 29, 1916, and ' ' that lieuten- ants (junior grade) and ensigns may be consid- ered eligible for temporary promotions to the grades of Lieutenant and Lieutenant(jumor grade) without regard to length of service in grade." The act of July 11, 1919 (41 Stat., 137, 138), which temporarily increased the enlisted strength for specified periods, provided that during such periods the "average number" of commissioned officers of the line, including temporary officers and reserves on active duty, shall not exceed 4 per centum of the total tem- porary authorized enlisted strength of the Regular and Temporary Navy, and members of the Naval Reserve Force in enlisted ratings on active duty; with a pro\-iso that nothing in said act "shall be construed as affecting "the permanent commissioned strength of the Navy as authorized bv existing law." The act of June 4, 1920 (41 Stat., 834) pro- vided "That the number of commissioned officers of the line, permanent, temporary, and reserve on active duty shall not exceed 4 per centum of the total authorized enlisted strength of the Regular Navy," with the pro\'iso that nothing therein contained should be construed as reducing the permanent commissioned strength of the Regular Na\'y as authorized by existing law. Ensigns are commissioned as such from among the graduates of the Naval Academy (see acts Mar. 7, 1912, 37 Stat., 73, and July 9, 1913, 38 Stat., 103), and the appointment of 12 ensigns each year from among the boatswains, gunners, machinists, chief boatswains, chief gunners, and chief machinists in the Navy was authorized by acts of ]\Iarch 3, 1903 (32 Stat., 1197), and March 3, 1909 (35 Stat., 771); see also acts of March 3, 1899, section 12 (30 Stat., 1007); March 3, 1901 (31 Stat., 1129); and April 27, 1904 (33 Stat., 346). Lieutenants (junior grade) are ap- pointed by promotion from ensigns who have had three vears' ser\dce as such (act Mar. 3, 1899, sec. 7, 30 Stat., 1005). By act of June 4, 1920, section 5 (41 Stat., 836) it was provided that until June 30, 1923, promotions to lieu- tenant (junior grade) and lieutenant may be made without regard to length of service. Additional ofla.cers are authorized by various enactments, including the following: Advancement of officers for "eminent and con- spicuous conduct in battle or extraordinary heroism" is authorized by sections 1506-1507, Re^dsed Statutes, notwithstanding that the higher grades to which such officers may be so advanced already have the full number of offi- cers specified bv law. Bv acts of March 3, 1901 (31 Stat., 1108) and June 16, 1906 (34 Stat., 296), officers so advanced are to be carried as addi- tional to the numbers of each grade in which they serve. By sections 1508-1510, Re\ased Statutes, any line officer receiving the thanks of Congress for "highly distinguished conduct in conflict with the enemy, or for extraordinary heroism in the line of his profession," may be advanced one grade, and such vote of thanks shall be held "to affect such officer only." Retired officers detailed for the command* of squadrons or single ships in time of war may be restored to the active list if they receive a vote of thanks of Congress for their ser\'ices and gallantrv in action aa:ainst the enemv (sec. 1465, R! S.). See also file 26521-iOO, June 19, 1920, noted below under "Effect of exceeding number of officers allowed in anv grade." The act of March 3. 1901 (31 Stat., 1108), pro- vides that no promotion shall be made to fill a vacancy occasioned by the promotion, retire- ment, (ieath, resignation, or dismissal of any officer who is an additional number in his grade under the provisions of the said act; and sec- tion 1510, Revised Statutes, provides that no promotion shall be made to fill a vacancy occa- sioned by the final retirement, death, resigna- tion, or dismissal of an officer who has received a vote of thanks. Officers on the active list of the line who, under the provisions of section 5 of the Navy personnel act of March 3, 1899 (.30 Stat., 1005), perform engineering duty on shore only, were made "additional to the numbers in the grades" in which they were serving or to which they might be promoted, by act of March 4, 1911 (36 Stat., 1267). [Note: Such former engineer offi- cers are now made available by law for any shore duty compatible with their rank and grade. See note to section 1390, Revised Statutes.] The act of March 3, 1915 (38 Stat., 939). author- ized the President to restore to the active list 451 Sec. 1363. PL 2. REVISED STATUTES. The Navy. officers who were oompulsorily retiretl to create vacamies in accordance mth section 9 of the Navy i)erst)nnol act approved March 3, 1899 (;W Stat", 100(1), and provided that ofhcers so tran.s- ferrod to the active list shall be carried as addi- tional numbers in the grades to Avhich trans- ferred or thereafter promoted. Provision for restoration to the active list of certain desig- nated retired officers, as additional numbers in grade, waa made by act of August 29, 1916 (39 Stat., 602). The act of August 29, 1916 (39 Stat., 580), pro^•ided for the appointment and detail of line officers of the Navy for engineering duty only, and the same act (39 Stat., 578, 579) provided that such officers, and officers of the former Engineer Corps "who are restricted by law to the performance of shore duty only," shall, when promoted by selection to the grades of commander, captain, and rear admiral, "be carried as additional numbers in grade." The act of August 29, 1916 (39 Stat., 582, 586), created a naval flying corps, to be composed in 8 art of 150 officers, detailed from the line of the avy and from the Marine Corps, or appointed to the line of the Navy or Marine Corps, for aeronautic duties only, and provided that said number of officers shall be in addition to the total number of officers provided by law "for the other branches of the naval service." Warrant oflB.cers and commissioned war- rant officers. — As to number of, authorized by law, see note to section 1405, Revised Stat- utes. Naval Reserve. — The Secretary of the Navy is authorized to establish a Ust of persons who have been found eligible by examination for commissions in any reserve or volunteer naval force hereafter organized, other than the Naval Militia, and, when exigency demands, the President is authorized to issue commissions in the Regular Navy to persons so qualified. The President is also authorized to commission or warrant former officers who have been honora- bly discharged from the Navy. (Act Feb. 16, 1914, aec. 21, 38 Stat., 289.) The act of August 29, 1916 (39 Stat., 587), amended by acts of March 4, 1917 (39 Stat. , 1174), April 25, 1917 (40 Stat., 37), April 25, 1917 (40 Stat., 38), May 22, 1917 (40 Stat., 84), July 1, 1918 (40 Stat., 708-712). and June 4, 1920 (41 Stat., 834), created a "Naval Reserve Force" and provided for enrollment therein, for "gen- eral service" only, of former officers and citizens of the United States or of the insular possessions and aliens, not enemies, who have declared their intention to become citizens, who "may be ordered into active serATice in the Navy by the President in time of war or when, in his opinion, a national emergency exists"; said Naval Reserve Force to have the various grades and ranks, not above the rank of lieutenant commander, corresponding to those in the Navy. National Naval Volunteers. — Bv act of August 29, 1916 (39 Stat., 595), the "National Naval Volunteers" was created, to be composed of members of the Naval Militia, "to pro\dde a force for use in any emergency, including that of actual or imminent war, requiring the use of naval forces in addition to those of the Regular Navy." By act of July 1, 1918 (40 Stat. 708), all laws relating to the Naval Militia and Na- tional Naval Volunteers were repealed and the President was authorized to transfer as a class all members of the National Naval Volunteers to the Naval Reserve Force or Marine Corps Reserve. The Coast Guard. — By act of January 28, 1915 (38 Stat., 800), amended by act of August 29, 1916 (39 Stat., 600), the Coast Guard was es- tablished, to "constitute a part of the military forces of the United States, ' ' and ' ' to operate as a part of the Navy, subject to the orders of the Secretary of the Navy, in time of war or when the President shall so direct." The Lighthouse Service. — By actof August 29, 1916 (39 Stat., 602), it was provided that "the President is hereby authorized, whenever in his judgment a sufficient national emergency exists, to transfer to the service and jurisdiction of the Navy Department, or of the War Depart- ment, such vessels, equipment, stations, and personnel of the Lighthouse Service as he may deem to the best interest of the country." Coast and Geodetic Survey. — By act of May 22, 1917, section 16(40 Stat., 87), it was pro- vided ' ' that the President is hereby authorized, whenever in his judgment a sufficient national emergency exists, to transfer to the service and jurisdiction of the War Department, or of the Navy Department, such vessels, equipment, stations, and personnel of the Coast and Geo- detic Survey as he may deem to the best interest of the country." Public Health Service. — In times of threat- ened or actual war the President is authorized in his discretion to utilize the Public Health Service in such manner as in his judgment shall promote the public interest without impairing the efficiency of the service for the purposes for which created. (Act July 1, 1902, sec. 4, 32 Stat., 713.) When detailed in time of war for duty with the Navy, officers of the Public Health Service shall be subject to the laws prescribed for the govern- ment of the Navy (act July 9, 1917, 40 Stat., 242); and are empowered to serve on naval courts-martial (act Oct. 6, 1917, 40 Stat., 393). Acting officers. — As to authority for ap- pointment of, see note to section 1410, Revised Statutes. During the Spanish War, by act of May 4, 1898 (30 Stat., 369), the President was author- ized, for a period of twelve months, in case of an exigency, to appoint officers of the Line and staff not above the rank of commander, and warrant officers, and officers of the Marine Corps not above the rank of captain, as might be requisite; " such officers to serve only during the continu- ance of the exigency under which their services were required in the then existing war. (In this connection, see 22 Op. Atty. Gen., 82; and U. S. V. Hite, 204U. S.,343.) Number of officers not to be increased ■without explicit legislation. — Legislation relating to the Navy should not be construed as impliedly increasing the number of officers authorized by law, where no such result was intended by Congress. Thus a law providing that increased rank and pay should be conferred upon certain officers on the active list who had served as chiefs of bureaus in the Navy Depart- ment should not be construed as creating a vacancy in the list of officers of their former 452 The Navy. PL 2. REVISED STATUTES. Sec. 1364. rank, with a resultant increase in the total num- ber of officers. Such provision was intended to affect only the officers for whose benefit it was enacted, and not to increase the number of officers in the Navy. When Congress has seen fit to make increases in the number of officers in the Navy, either generally or in particular corps or grades, it has generally used specific and apt language to accomplish that object. (28 Op. Atty. Gen., 526; see also note to sec. 421, R. S.) In accordance with the above opinion of the Attorney General, held, that an act of Congress providing that pharmacists in the Navy having six years' service as such should be commis- sioned as chief pharmacists, which grade had not theretofore existed, was intended merely to confer increased rank and emoluments upon officers who had served a specified period as pharmacists, and not to increase the total num- ber of such officers; accordingly, the law having previously limited the total number of pharma- cists to 25, this limitation must be held to embrace the new grade of chief pharmacist, and said grades of pharmacist and chief pharmacist combined, should be limited to a maximum of 25. (File 27213-3, May 6, 1913; see also 5460-81, May 12, 1916, and see note to sec. 1405, R, S.) Effect of exceeding number of officers alloAvedin any grade. — The law fixes the max- mum number of officers in various grades in the Navy; and where the number in each of the grades is full , no newappointment, either original or by promotion, can be made in those grades, without either increasing the number allowed by law, or removing some other officer. Therefore, the nomination and confirmation of an officer for appointment to a grade already full (com- mander), vice M, "promoted," at a t me when M had been nominated for promotion but not confirmed and was therefore still in the grade of commander, must either, first, increase the number of commanders beyond that allowed by law ; or second , operate to remove M from the Navy; or third, operate to confirm M as a cap- tain; or, fourth, be ineffectual or void. (23 Op. Atty. Gen., 30, holding that in this case effect of nomination and confirmation of successor to M, was to confirm M's nomination as captain. Compare 13 Op. Atty. Gen., 44, noted under sec. 1457, R. S., '"Correction of erroneous re- tirement.") The President has not power, by and with the advice and consent of the Senate, to increase the number of commanders in the Navy beyond the number expressly fixed and limited by Con- gress. ^Vhile the Constitution gives the Presi- dent the power, with the advice and consent of the Senate, to appoint officers, it does not confer power to create such offices as these, nor to increase their number. He may appoint such officers as are created by the Constitution or by law, but there can be no doubt of the power of Congress to fix and limit the number of such officers as these, and such action is binding upon both the Executive and the Senate, and can be changed by Congress alone. (23 Op. Atty. Gen., 30.) The act of August 29, 1916 (39 Stat., 576), while it does not in numbers fix the comple- ment of the various commissioned grades and ranks of the Navy, does specify a definite method of determining the maximum number of such officers by mathematical calculation. The result of such calculation is the fixed num- ber of officers allowed by law in each grade and rank for the period covered thereby and the number thus arrived at for any period can not be exceeded during said period any more than if the law had specified same in actual figures. The power of Congress to reduce the number of officers is undoubted. Accordingly, should subsequent computations result in decreasing the number of officers as previously fixed, it is not unlikely that the excess number of officers would be legislated out of office, in the absence of further legislation. (File 28687-19, Jan. 24, 1917, citing 23 Comp. Dec, 33. But see file 26521-400, June 19, 1920, holding that officers found to be in excess of the authorized number in any grade, as the result of new computations, should be carried as additional numbers in grade until such time as the number is reduced by death, resignation, promotion, retirement, etc., no provision having been made by Con- gress for the reduction of such officers to lower grades, and the President not being required or directed by law to revoke their commissions. As to removal of officer by noraination and confirmation of successor, see note to Constitu- tion, Art. II, sec. 2, clause 2, under "VIII. Power of Removal." Vacancies necessary prior to promo- tion. — "Officers subject to examination before promotion to a grade limited in number by law shall not be entitled to examination in such a sense as to give increase of pay until designated by the Secretary of the Navy to fill vacancies in the higher grade." (Sec. 1495, R. S.) Where an officer in a grade Limited in num- ber by law, which grade counting him is full, becomes due for promotion to fill a vacancy in a higher grade, but his promotion is delayed, a successor to such officer can not lawfully be appointed until the latter's promotion is con- summated. (File 26521-67, June 4, 1913; 26521-67:1, Dec. 4, 1913; see also 11 Comp. Dec, 764; and file 28762-277, Dec 10, 1917.) The act of June 22, 1874 (18 Stat., 191) [noted under section 1561, Revised Statutes], provid- ing that officers on promotion in certain cases shall be entitled to the pay of the grade to which promoted from date of rank therein, does not apply so as to entitle officers to pay in the higher grade from date of rank when it appears that there were no vacancies in the higher grade on that date. (23 Op. Atty. Gen., 30, 40.) See note to section 1364, Revised Statutes, under "Vacancies necessary prior to promo- tion." Sec. 1364. [When number of line officers may be exceeded. Obsolete.] This section provided as follows: "Sec. 1364. The provisions of the foregoing section shall not have the effect to vacate the commission of any lieutenant-commander. lieutenant, master, or ensign appointed accord- ing to law, in excess of the respective number therein fixed ; nor to preclude the advancement of any officer to a higher grade, for distinguished 453 Sec. 1366. Pt.2. RE VISED STAT UTES. The Navy. conduct in battle, or for extraordinary heroism, under the provisions of sectiona liftooii hundred and six and lifteen hundred and eight." — (16 July, 1862, c. 183, s. 9, v. 12, p. 584. 25 July, 1866, c. 231, S.S. ], 2. v. 14, p. 222.) It was rendered obsolete by the Navy personnel act of March 3, 1899, section 7 (30 Stat., 1005), which superseded "the foregoing section" referred to herein, namely, section 1363, Revised Statutes, by making new and complete provisions as to the number of officers who should compose the active list of the line of the N^u-y. Provisions relating to the advancement of ofl&cers to higher grades for distinguished conduct in battle or for extraordinary heroism, notwithstanding that such grades already had the full number of ofiicers specified by law, were contained in sections 1507 and 1509, Re- vised Statutes, and the acts of March 3, 1901 (31 Stat., 1108) and June 16, 1906 (34 Stat., 296), noted above, under section 1363, Revised Stat- utes. Also, the act of March 3, 1903 (32 Stat., 1197, 1198), noted above under section 1363, Revised Statutes, after increasing the number of officers in certain gratles of the active list of the line, and fixing a new total for such grades, provided that "nothing contained in this act shall affect the officers of the Navy who may have been or may hereafter be advanced in rank under existing provisions of law by which they become extra numbers in their respective graxles, or operate to vacate the commi.ssion of any officers now in the service." See also note to section 1363, Revised Statutes, under "Effect of exceeding number of ofiicers allowed in any grade." Vacancies necessary prior to promo- tion. — Section 1364 provides that the provisions of the foregoing section shall not have the effect to vacate the commission of certain grades of officers appointed according to law, in excess of the respective number therein fixed — thus, by a familiar rule of construction, implying that the commissions of other officers in excess of the number fixed, might be thereby vacated. (23 Op. Atty. Gen., 30.) Sections 1364, 1506, and 1507 authorize the advancement of officers of the Navy to higher grades for eminent and conspicuous conduct in battle or extraordinary heroism, even though in excess of the number in such grade as fixed by statute. These sections do not apply in the cases of officers promoted in turn to fill vacan- cies, and such promotions could not be sus- tained if they increased the number of officers of these grad.es beyond the number fixed by law. (23 Op. Atty. Gen., 30, 39.) See note to section 1363 Revised Statutes, under "Vacancies necessary prior to promo- tion." Sec. 1365. [Selection of rear admirals during war.] During war rear- admirals shall be selected from those officers on the active list, not below the grade of commanders, who shall have eminently distinguished themselves by courage, skill, and genius in their profession; but no officer shall be so promoted, under this provision, unless, upon recommendation of the President by name, he has received the thanks of Congress for distinguished service. — (16 July, 1862, c. 183, s. 7, v. 12, p. 584.) Examinations prior to promotion on the active list are required by sections 1493-1497, Revised Statutes. See also section 1366, Revised Statutes, belov,-. In time of war the President may, by and with the advice and consent of the Senate, detail any officer on the retired list, not below the grade of commander, for the command of a squadron, with the rank and title of "flag officer"; and retired officers so detailed may be restored to the active list if they receive a vote of thanks of Congress. (Sees. 1463-1465, R. S.) Temporary promotions to all grades in the Navy, "during the period of the present war," were authorized by act of May 22, 1917, section 4 (40 Stat., 85), as amended by act of July 1, 1918 (40 Stat., 715, 716.) President may select any officer not below the grade of commander on the active list of the Navy and assign him to the com- mand of a squadron, with the rank and titleof "flagoflicer. " (Sec. 1434, R. S.) Thanks of (Congress, effect of: See sections 1465, 1508-1510, Revised Statutes. Persons who have by name received the thanks of Congress are entitled to the privilege of admission to the floor of the House of Representatives. (See Rules of the House of Representatives.) The act of August 29, 1916 (39 Stat., 578), pro- vides that "hereafter all promotions to the grades of commander, captain, and rear ad- miral of the line of the Navy, including the promotion of those captains, commanders, and lieutenant commanders who are, or may be, carried on the Navy list as additional to the numbers of such grades, shall be by selection only from the next lower respec- tive grade upon the recommendation of a board of naval officers as herein provided." Sec. 1366. [Promotion to rear admiral during peace. Superseded.] This section provided as follows: "Sec. 1366. During peace, vacancies in the grade of rear-admiral shall be filled by regular promotion from the list of commodores, sub- ject to examination according to law." — (16 July, 1862, c. 183, s. 7, v. 12, p. 584.) It was superseded bv the act of March 3, 1899, section 7 (30 Stat., 1005), which abolished 454 The Navy. Pt.2. RE VISED STAT UTES . Sec. 1368. the grade of commodore on the active list of the Navy. (See note to sec. 1362, R. S.) Thereafter, promotions to the grade of rear ad- miral were made by seniority from the grade of captain. (See sec. 1458, R. S.) New provisions for promotion to the grade of rear admiral were contained in the act of August 29, 1916 (39 Stat., 578), noted under section 1365, above. See also sections 1434, 1463, 1464, and 1497, Revised Statutes. Sec. 1367. [Secretaries to Admiral and Vice Admiral.] The Admiral and Vice Admiral shall each be allowed a secretary, who shall be entitled to the rank and allowances of a lieutenant in the Navy. — (21 Dec. 1864, c. 6, s. 2, V. 13, p. 420. 16 May, 1866, c. 84, v. 14, p. 48. 25 July, 1866, c. 231, s. 6, V. 14, p. 223. 2 Mar., 1867, c. 174, s. 1, v. 14, p. 516.) Appointments from civil life of secretaries or clerks to the Admiral or Vice Admiral when on sea service were prohibited by act of May 4, 1878 (20 Stat., 50) , which further provided that an officer not above the grade of lieu- tenant shall be detailed to perform the duties of secretary to the Admiral or Vice Admiral when on sea service. Pay of secretaries to the Admiral and Vice Ad- miral was fixed at $2,500 per annum by sec- tion 1556, Revised Statutes. Secretaries and clerks are not petty officers of the Navy. (See sec. 1410,_R. S.) See note to section 1362, Revised Statutes, as to the grades of Admiral and Vice Admiral in the Navy. Appointment of secretary. — The appoint- ment of secretary allowed the Admiral of the Navy by section 1367, Revised Statutes, does not belong to the President with the advice and consent of the Senate, but devolves upon the Admiral as one personal to himself, and the con- temporaneous construction of the statute and uniform practice thereunder by the executive branch of the Government have accorded with this view. (19 Op. Atty Gen., 589. As to ap- pointment of officers in general, see note to Con- stitution, Art. II, sec. 2, clause 2.) It can not be supposed , in the absence of ex- press pro\'ision, that Congress wished to deprive the Admiral and Vice Admiral of the important privilege of selecting their confidential assist- ants, especially when such a privilege had always been accorded to officers inferior to them in rank. (19 Op. Atty. Gen., 589.) The office of secretary to the Admiral is not an independent office to be filled without regard to the Admiral's nomination and for a life term like that of a lieutenant in the line. By section 1362, Revised Statutes, it is provided that when the office of Admiral becomes vacant, the grade shall cease to exist. Thus, if the foregoing opinion were not correct, we should have a sec- retary to the Admiral without an Admiral. It would then be a puzzling question to define the scope of his official duties. Congress could not have intended such an anomalous state of affairs. (19 Op. Atty. Gen., 589.) Section 1410, Revised Statutes, provides that "all officers not holding commissions or war- rants, or who are not entitled to them, except such as are temporarily appointed to the duties of a commissioned or warrant officer, and except secretaries and clerks, shall be deemed petty officers," etc. The necessary implication of this section is that secretaries are officers not holding commissions or warrants, and are not entitled to them. (19 Op. Atty. Gen., 589.) When Congress gave the Admiral and Vice Admiral secretaries, it had been the established practice in the Navy Department for 40 years to allow commanders of fleets, squadrons, and divisions to appoint secretaries to serve them while in command; and such secretaries were staff officers with the relative rank of lieutenant. Without any legislation, therefore, the Admiral and Vice Admiral, while in command on the sea, would have been allowed secretaries on their own appointment. The statutory pro- vision embodied in section 1367 simply ex- tended the privilege of a secretary to these high officers of the Navy for their shore service also. (19 Op. Atty. Gen., 589.) Pay of secretary. — The position of secre- tary to the Admiral was necessarily in abeyance until the grade of Admiral was revived. However, when the grade was revived, the provisions of law relating to the secretary to the Admiral became again operative. Not being a commissioned officer, his pay was not affected by the Navy personnel act of March 3, 1899. Accordingly, he is entitled to a salary of $2, 500 per annum under section 1556, Revised Statutes, and to the allowances of a lieutenant in the Navy, under section 1367. (6 Comp. Dec, 828.) By special enactment of Congress the appointment was authorized, as an assistant paymaster in the Na\y, of Leonard G. Hoffman, secretary to the late Admiral of the Navy, as an additional number in grade, the services of said Hoffman as secretary to be credited to him, for purposes of pay, as service in the Navy. (Act Mar. 4, 1917, 39 Stat., 1184). Sec. 1368. [Medical Corps ; organization of. Superseded.] This section provided as follows: "Sec. 13(i8. The active list of the Medical Corps of the Na\y shall consist of fifteen medical directors, fifteen medical inspectors, fifty sur- geons, and one hundred assistant surgeons." — (3 Mar., 1871, c. 117, s. 5, v. 16, p. 535.) It was superseded by a clause in the naval appropriation act of August 5, 1882 (22 Stat., 285), 455 Sec. 1368. Pt.2. REVISED STATUTES. The Navy. which provided that " the active list of the Med- ical Corps of the Navy shall hereafter consist of fifteen medical directors, fifteen medical ins])ecti)rs, fifty surgeons, and ninety assistant and jKU'^^cd as.-ted compensation for such treatment. A warrant for his arrest for practic- ing medicine without a license was issued at the instanceof a private medical practitioner located inthe\'icinity of the naval station. Upon report of the occurrence to the Navy Department the case was immediately referred to the Attorney General, who detailed counsel for the defense, with the result that the case was dismissed by the civil magistrate. (File 6092-2.3.3.) Right to practice medicine and sur- gery.— "It is well settled that under the p, lOK), should receive the same construction as the previous acts, and that the distribution of the increase among tlie grades below pay inspector has been left to the executive dis- cretion. Hence, S7i per cent of the increase in the Pay Corps may be distributed among the three lower grades in such proportions as may best serve the interests of the Navy. This would result in having at least 40 officers in the grade of assistant ]iaymaster when the three lower grades are full, the act of August 29, 191G, not having the el'lect of repealing the act of March 3, 1899, which fixed the number of assist- ant paymasters at 40. In other words, although additional officers, authorized from time to time, may be distributed between the lower grades of the Pay Corps where not otherwise provided by Congress, the number of assistant paymasters specifically authorized by previous laws can not be distributed so as, for example, to place in the grades of passed assistant pay- master and pajTnaster the total number of pay officers allowed below the grade of pay inspector without retaining any oflicers in the grade of assistant paymaster. " (File 27223-37, Mar. 20, 1918.) See note to section 1380, Revised Statutes, re promotion of assistant paymasters. Acting officers. — See section 1381, Revised Statutes, and note to section 1410, Revdsed Statutes. Clerks to officers of the Supply Corps. — By naval appropriation act of March 3, 1915 (38 Stat., 942), three grades were established of clerks to pay officers, viz, acting pay clerks, appointed by the Secretary of the Navy; pay clerks, warranted by the President; and chief pay clerks, commissioned by the President by and with the advice and consent of the Senate. Special disbursing agents are authorized to be employed by section 3614, Revised Stat- utes. (30 Op. Atty. Gen., 132.) Disbursing officers abroad are not to be employed for naval service, under contract or otherwise, unless they hold appointments con- firmed by the Senate. (Sec. 1550, R. S.) A naval reserve, composed of persons who have been found qualified by examination for commissions in any reserve or volunteer naval force hereafter organized, other than the Naval Militia, is authorized by act of February 16, 1914, section 21 (38 Stat., 289); which act authorizes the President, when exigency demands, to issue commissions in tlie Regular Navy to persons so qualified; and also authorizes him to com- mission or warrant former officers who have been honorably discharged from the Navy. As to other auxiliaiy naval forces, see note to section 13()3, Revised Statutes. Number of officers not to be increased without explicit legislation. — (See note to sec. 1363, R. S.) The Pay Corps consists of officers commis- sioned by the President^ and clerks and others who are not so commissioned do not belong to the Pay Corps. This is obvious from the lan- guage of section 1378, Revised Statutes (U. S. V. Mouat, 124 U. S., 303.) Duties of Supply Corps. — The number of pay officers for the Navy is fixed by law, and each must give bond for the faithful discharge of his duties. They are prohibited from loaning money to brother officers. With these excep- tions there are no statutes prescribing their duties or functions. These latter spring from regulations issued from time to time by the Secretary of the Na\'j^ pursuant to section 161, Revised Statutes. Such regulations, when not inconsistent with law, are binding upon the Comptroller of the Treasury, and pay officers are amenable to court-martial for violation thereof. (30 Op. Atty. Gen., 376, 171 S. and A. Memo., 3611.) Decisions of Comptroller. — Disbursing officers may apply for and obtain decision of the Comptroller of the Treasury concerning legal- ity of proposed payments (act July 31 , 1984 , sec. 8, 28 Stat., 208); and may appeal to the Comp- troller of the Treasury from disallowances in their accounts by the Auditor for the Navy Department. (Same act and section.) Re- quests for advance decisions of the Comptroller of the Treasury must be forwarded by pay officers through the Secretary of the Navy; but appeals to the Comptroller from disallow- ances by the Auditor for the Navy Department may be forwarded by them direct. (Art. 1-2205, Naval Instructions, 1913; 90 S. and A. Memo., 836.) On general subject of accounting see note to section 236, Revised Statutes; and see Title XL, "The PubUc Moneys," sections 3591-3659, Revised Statutes. Disbursing officers of the Navy shall render their accounts and vouchers direct to the proper accounting officer of the Treasury. (Sec. 3622, R. S., as amended.) Secretary of the Treasury is required to report annually to Congress disbursing officers delinquent in rendering accounts. (Act May 28, 1896, 29 Stat., 179.) Failure in rendering accounts as provided by law is punishable as embezzlement by sec- tion 90, Criminal Code, act of March 4, 1909 (35 Stat., 1105); other proceedings against delin- quent officer are provided for by sections 3624-3638, Revised Statutes, and acts of July 31, 1894 (28 Stat., 206), and May 28, 1896, sec- tion 4 (29 Stat., 179.) Accounts of pay officer of lost or captured vessel; see section 284, Revised Statutes for provisions concerning. Settlement of outstanding checks and ac- counts of disbursing officers. (See sees. 306- 310, R. S., and art. R-4334, Navy Regs. 1913.) Lost checks, procedure with reference to. (See sees. 3646, 3647, R. S.; act of Feb. 23, 1909, 35 Stat., 643, and art. R-4337, Navy Regs., 1913.) Advances of publicmoney are prohibited by section 3648, Revised Statutes, with certain exceptions contained in that section and in section 1563, Revised Statutes, as amended by act of March 4, 1917 (39 Stat., 1181); and unauthorized advances are punishable as em- bezzlement under section 87, Criminal Code, act of March 4, 1909 (35 Stat., 1109.) Requisitions for advances to disbursing offi- cers and agents of the Navy may be issued by the Secretary of the Navy under a "general account of advances." (Act June 19, 1878, sec. 1, 20 Stat., 167.) Exchange of Government funds for other funds, with certain exceptions, is prohibited; 468 The Navy. Pt.2. REVISED STATUTES. Sec. 1378. disbursing officer violating this prohibition shall be suspended from duty immediately, and the matter reported to the President to the end that he may be promptly removed from office or restored to duty (Sec. 3639 and 8651, R. S.); and such unauthorized exchange of govermnent funds is punishable as embez- zlement under section 89, Criminal Code, act of March 4, 1909 (35 Stat., 1105). See sec- tion 1624. Revised Statutes, article 14. Depositing- public money in place not authorized by law is punishable as embezzle- ment under section 87, Criminal Code, act of March 4, 1909 (35 Stat., 1105); a disbursing offi- cer who deposits money in a bank not desig- nated as a depositor}^ in accordance with sec- tions 3620 and 3639, Revised Statutes, is liable with his sureties for any loss that may arise from the failure of such bank (20 Op. Atty. Gen., 24); and the conduct of bankers or officers of banks in knowingly receiving such money on deposit is punishable as embezzlement by section 96, Criminal Code, act of March 4, 1909 (35 Stat., 1106.) All moneys received by any officer for the United States must 1)e promptly paid into the Treasury, without deduction (sec. 3617, R. S.); officers violating this requirement shall be re- moved from office and forfeit moneys withheld (sec. 3619, R. S.); and such failure to deposit public money when required so to do is punish- able as embezzlement (sec. 91, Criminal Code, act Mar. 4, 1909, 35 Stat., 1105). But see note to section 236, Revised Statutes, under "Set-off." Failing' safely to keep public moneys in the care of a disbursing officer is punishal)le as embezzlement. (Sec. 88, Criminal Code, act Mar.4, 1909, 35 Stat., 1105.) See section 1624, Re^dsed Statutes, article 14. Making false returns, keeping false ac- counts, or embezzling public or private money or property, shall be punished by fine and im- prisonment by any court, civil or military, hav- ing jurisdiction. (See. 5306, R.S.) See section 1624, Revised Statutes, article 14. Making false or fictitious entries in accoimts or records, or making false reports of moneys or securities belon^g to the United States or to any person, or aiding or abetting therein, shall be punished by fine of not more than $5,000, or imprisonment for not more than 10 years, or both. (Act Mar. 4, 1911, 36 Stat., 1355.) Trading in Federal or State funds is punishal)le under section 103, Criminal Code, act of March 4, 1909 (35 Stat., 1107). Any officer of the United States who sells for a premium any Treasury note or other public security not his own property, without account- ing for such premium, shall be forthwith dis- missed from office. (Sec. 3652, R. S.) Responsibility of disbursing oflB.cers. — Upon application to Court of Claims, disbursing officers may be relieved of responsibility for losses incurred without fault or neglect on their part. (Judicial Code, act Mar. 3, 1911, sees. 145, 147, 36 Stat., 1136, 11.37.) Disbursing officers of the Navy shall be relieved by the accounting officers of responsi- bility on account of loss or deficiency deter- mined by the Secretary of the Navy to have occurred without fault or negligence on the part of such disbursing officers while they were in the line of their duty. (Act July 11, 1919, 41 Stat., 132; see also similar provision in the same act (41 Stat., 153) as to losses incurred during the "present emergency" due to mili- tary necessity or accidental circumstances.) Responsibility of disbursing officers for pay- ments made by order of commanding officers: See section 285, Revised Statutes, and cases noted thereunder; see also note to section 176, Revised Statutes. Embezzlement. — On general subject, see sections 86-96, Criminal Code, act of March 4, 1909 (35 Stat., 1105, 1106), and section 1624, Revised Statutes, article 14. Receipts. — Taking receipt for larger sum than paid is punishable as embezzlement under sections 86 and 95, Criminal Code, act of March 4, 1909 (35 Stat., 1105, 1106); taking receipts for payments by check, duplicate receipts for cash payments, or receipts in advance of actual pay- ments, is prohibited by Navy Regulations, 1913, article R-4303. Miscellaneous. — Disbursing officers are re- quired to furnish heads of departments with cer- tain data for annual reports to Congress (sec. 193, R. S.); and are required to make annual report to the Secretary of the Treasury of checks out- standing for three years or more (sec. 310, R. S.). Disbursing officers are not allowed to pay ex- pense connected with any commission or in- cjuiry, except courts-martial or courts of in- quiry in the military or naval service, unless special appropriation therefor is made by law (sec. 3681, R. S.); nor to pay compensation or expenses of any commission, council, board, or similar body, unless the creation of the same shall be authorized by law. (Act Mar. 4, 1909. sec. 9, 35 Stat., 1027.) No money can be paid to any person as com- pensation who is in arrears to the United States. (Sec. 1766, R. S. See note to sec. 236, R. S., under "VI. Set-Off.") Sec. 1377. [Supply Corps; no promotion or appointment in certain grades until reduced. Obsolete.] It became obsolete as soon as the number of passed assistant paymasters was reduced below 30. See also later laws, noted above under section 1376, increasing the number of passed assistant and assistant paymasters. This section provided as follows: "Sec. 1377. Until the number of passed assistant paymasters shall have been reduced below tlilrty, there shall be no promotion to that grade, nor any appointment to the grade of assistant paymaster." — (15 July, 1870, c. 295, s. 11, V. 16, p. 334.) Sec. 1378. [Supply Corps ; appointments in, how made.] All appointments in the Pay Corps shall be made by the President, by and with the advice and 469 Sec. 1379. PL 2. REVISED STATUTES. The Navy. consent of the Senate.— (30 Mar., 1812, c. 47, s. 6, v. 2, p. 699. 22 June, 1860, c. 181, s. 3, V. 12, p. 83. 17 July, 1861, c. 4, s. 1, v. 12, p. 258. 3 May, 1866, c. 72, s. 1, r. 14, p. 43.) Amendment to this section was made by act of July 11, 1019 (41 Stat., 147), which changed the designation of the Pay Corps to "Supply Corps." As to appointment of officers in general, see note to Constitution, Article II, section 2, clause 2. Acting pay officers may be appointed at sea by senior officer present, in cases authorized by section 1381, Revised Statutes; see also note to section 1410, Revised Statutes. Appointments as acting pay clerks are made by the Secretary of the Navy; appoint- ments as pay clerks are matle by the Presi- dent; and appointments as cliief pay clerks are made by the President, by and with the advice and consent of the Senate. (Act Mar. 3, 1915, 38 Stat., 942.) Appointments in the Naval Reserve Force, to commissioned grades, shall be made by the President alone, and to warrant grades shall be made by the Secretary of the Navy. (Act Aug. 29, 1916, 39 Stat., 587.) Appointments of temporary commissioned offi- cers during the war ■ndth Germany were to be made by the President, by and with the advice and consent of the Senate. (Act May 22, 1917, sec. 12, 40 Stat., 87.) Promotion of officers; for provisions relating to, see section 1380, Revised Statutes. Rank of officers of the Navy shall not be changed "except in accordance with the provisions of existing law, and by and with the advice and consent of the Senate." (Sec. 1506, R. S. as amended byact June 17, 1878, 20 Stat. 143.) Recess appointments when Senate not in ses- sion. (See note to Constitution, Art. II, sec. 2, clause 3; see also note to sec. 1381, R. S.) Supply Corps limited to commissioned oflicers. — "It is ob\-ious from the language of section 1378 that the Pay Corps is limited to offi- cers commissioned by the President, and that clerks and others who are not so commissioned do not belong to the Pay Corps." (U. S. v. Mouat, 124 U. S., 303.) See note to section 1369, Revised Stat- utes, concerning appointments in the Navy. Sec. 1379. [Supply Corps ; qualifications for assistant paymasters.] No per- son shaU be appointed assistant paymaster who is, at the time of such appoint- ment, less than twenty-one or more than twenty-six years of age; nor until his physical, mental, and moral qualifications have been examined and approved by a board of paymasters appointed by the Secretary of the Navy, and according to such regulations as he may prescribe. — (17 July, 1861, c. 4, s. 2, v. 12, p. 258.) Age for appointment as assistant paymaster from among chief pay clerks and pay clerks, was fixed by act of March 3, 1915 (38 Stat., 943), at "between the ages of twenty-one and thirty-five years at the time of appoint- ment. " Boards may be convened by officers on foreign stations. (Act March 4, 1917, 39 Stat., 1171.) Midshipmen on graduation may be appointed assistant paymasters in the Navj', by au- thority of act of July 9, 1913 (38 Stat., 103); see also note to section 1521, Revised Statutes. The age limit fixed by this section was waived by act of July 3, 1894 (28 Stat., 99), for the benefit of certain graduates of the Naval Academy who had been discharged from the service; and by act of March 3, 1899 (30 Stat., 1038), for the benefit of persons who had served as assistant paymasters in the war with Spain. The age limit has also been waived by special act of Congress in individual cases (see, for example, act May 9, 1914, 38 Stat., 39). Special age limits were prescribed for officers appointed in the Regular Navy by transfer from the temporary Navj'^ and Naval Reserve Force, by act of June \ 1920, section 5 (41 Stat., 835). A candidate who has passed his twenty- sixth birthday is ineligible and can not, therefore, legally be appointed to the Pay Corps under section 1379, Revised Statutes. This has been the prior interpretation of the law by the Na\'y Department, and such interpretation received the approval of Congress in the enact- ment of a special act of May 9, 1914 (38 Stat., 39), wai\-ing the age limit in the case of a candidate who successfully passed the Pay Corps examina- tion while under 26 years of age, but who at- tained that age the day after the board's finding was approved and before his nomination could be made by the President, owing to an adjourn- ment of the Senate for the Chi-istmas holidays. Other statutes relating to the ages of candidates for appointment to the Navy have beem. simi- larly interpreted by the Navy Department and the Attorney General, and there have been judi- cial decisions in civil cases which support such interpretation. (File 27223-12:1, Jan. 27, 1915, citing authorities.) For other decisions, see note to section 1370, Revised Statutes, as to age of candidates for appointment as assistant surgeons ; see also sec- tion 1517, ReAdsed Statutes, as to age of candi- dates for appointment as midshipmen at the Naval Academy; and act of March 3, 1899, sec- tion 14 (30 Stat., 1007), as to age of candidates for appointment as warrant machinists (now designated as "machinists"). 470 The Navy. PL 2. REVISED STATUTES. Sec. 1380. As to wnat constitutes appointment, see note to Constitution, Aiticle II, section 2, clause 2; and see note to section 1370, Revised Stat- utes, as to when an appointment as assistant siugeon is complete. Examination by "board of paymas- ters." — The term "paymasters" in this section has been construed to mean "officers of the Supply Corps," and not as restricting the mem- bership of the examining board to officers in the grade of "paymaster." (See T^Jt. 1640, Navy Regs. , 1920 . As to grades of officers constituting the Supply Corps, see note to sec. 1376, R. S.) [This section is pecuUar in requiring the phys- ical qualifications of candidates for the Supply Corps to be examined and approved by a board not composed of medical officers. In practice, nevertheless, candidates for this corps are phys- ically examined by a board of medical officers, who report the result of such examination to the statutory board, and the latter thus have the benefit of the medical officers' opinion to guide them in making their report upon the physical qualifications of the candidates. (See Art. R-3306, Navy Regs. , 1913. See also in this con- nection act Mar. 3, 1915, 38 Stat., 942, providing that candidates for appointment as acting pay clerk, pay clerk, and cliief pay clerk shall be physically, as well as mentally, morally, and professionally examined by a board, composed when practicable of officers of the Pay [now Supply] Corps.) Report of medical officers is not, however, binding upon the statutory board, which may legally find physically qual- ified for appointment a candidate who has been adversely reported upon by the medical officers. (See, for example, records of examining boards in cases of Assistant Paymasters Charles L. Austin, Walter Maudry, and Maury W. Boy- kin.)] Qualifications for temporary appoint- ment. — See note to section 1370, Revised Statutes, under "Appointments to temporary service." Sec. 1380. [Supply Corps ; promotions in.] Passed assistant paymasters shall be regularly promoted and commissioned from assistant paymasters, and pay- masters from passed assistant paymasters; subject to sucli examinations as may be prescribed by the Secretary of the Navy. — (17 July, 1861, c. 4, s. 5, v. 12, p. 258. 3 May, 1866, c. 72, s. 1, v. 14, p. 43.) Examinations were discontinued for promotion of staff officersingradebyactof May 22, 1917, section 20 (40 Stat., 89), which act and section also reenacted a provision in the act of March 4, 1917 (39 Stat., 1182), requiring examinations of staff officers for advance- ment in rank. It was provided by act of August 29, 1916 (39 Stat., 576), that "officers of the lower grades of the Medical Corps, Pay [now Supply] Corps, Construction Corps, and Corps of Civil Engineers shall be advanced in rank up to and including the rank of lieutenant com- mander with the officers of the line with whom or next after whom they take prece- dence under existing law." (See note to sec. 1475, R. S.) By act of July 1, 1918 (40 Stat., 718), it was provided that advancement to the ranks of commander, captain, and rear admiral in the Staff Corps of the Navy shall be made by selection in the manner therein pre- scribed. Assistant paymasters are promoted to passed assistant paymasters after three years' service, provided vacancies exist in the upper grade. The following order was issued by the Secre- tary of the Navy, February 21, 1908: "It is directed that hereafter assistant paymasters shall be considered as due for promotion to be passed assistant paymasters as soon as they have served three years in the grade of assistant pay- master: Provided, That the number of passed assistant paymasters shall not exceed fifty-six." (File 3022-5; as to increase by law in total of passed assistant pavmasters, see note to sec. 1376,_R. S.) This order was modified by the President, upon recommendation of the Secretary of the Navy, August 23, 1912 (file 1660-139, Bu. Nav.), by increasing the grade of passed assistant pay- master to 76, pursuant to act of August 22, 1912, (noted under sec. 1376, R. S.), and providing that "no assistant paymaster shall be promoted to passed assistant paymaster until he shall have served three years in the grade of assistant paymaster." The promotions of assistant paymasters in accordance with the above order of the Secre- tary of the Navy are promotions "in coiu:se," within the meaning of the act of June 27, 1874 (18 Stat., 191), and are advancements in grade "pursuant to law," within the meaning of the act of March 4, 1913 (37 Stat., 892). (See Wil- liams V. U. S., 47 Ct. Cls., 316, and Crapo v. U. S., 50 Ct. Cls., 337; see also sec. 1561, R. S.) The law does not regulate the length of time which an officer must serve in the grade of assistant paymaster before being eligible, if otherwise qualified, to fill a vacancy which may exist in the grade of passed assistant paymaster. The department has, however, adopted the procedure, which is now well established, by which such advancements are regulated by length of service, but it may modify in a par- ticular case the procedure thus established. (File 11130-30:1, May 4, 1916.) Subject to the limitations contained in laws prior to August 29, 1916, as to the number of offi- cers in certain lower grades of the Pay Corps (see note to sec. 1376, R. S.), the Secretary of the Navy has discretion to pro^dde that all assistant paymasters shall be promoted to passed assistant paymasters at the same time that they are ad- vanced to the rank of lieutenant, and that all passed assistant paymasters shall be promoted to paymaster at the same time that they are advanced to the rank of lieutenant commander. (File 27223-37, Mar. 20, 1918.) 471 Sec. 1381. Pt.2. REVISED STATUTES. The Navy. Pay on promotion. — All officers of the Navy advanci'd in i^^rade or rank pursuant to law shall be alldwod the i)ay and allowances of the higher frrade or rank from the dates stated in their conmussions. (Act Mar. 4, 1913, 37 Stat., 892; see note to sec. 1561, R. S.) Suspension from promotion of officers who fail to (jualify when examined is required by section J 505, lie vised Statutes, as amended by act of March 11, 1912 (37 Stat., 73), and May 22, 1917, section 20 (40 Stat., 89). Sec. 1381. [Supply Corps ; acting appointments on ships at sea.] When the office of paymaster or assistant paymaster becomes vacant, by death or other- wise, in ships at sea, or on foreign stations, or on the Pacific coast of the United States, the senior officer present may make an acting appointment of any fit pei-son, who shall perform the duties thereof until another paymaster or assistant pa3^master shall report for duty, and shall be entitled to receive the pay of such grade while so acting. — (17 July, 18G1, c. 4, s. 4, v. 12, p. 258.) Acting appointee continues to hold his regular office. — "An acting appointment of a paymaster's clerk to perform the duties of pay officer on board a naval vessel at sea, under sec- tion 1381, Revised Statutes, does not change his official status as a paymaster's clerk." (21 Comp. Dec, 548.) Not entitled to dual compensation. — "A naval officer acting as paymaster is appointed to discharge the duties of an office which he does not hold , and is prohibited from receiving dual compensation by the Revised Statutes, sections 1763, 1765." (Webster v. U. S., 28 Ct. Cls., 25.) It is true that Revised Statutes, sections 1381 and 1564, provide that any person performing the duties of paymaster by appointment of the senior officer, shall be entitled to receive the pay of such grade while so acting. Those sec- tions must be construed with reference to other provisions of the statute, and while they may operate literally if the appointee holds no office under the Government, as may be the case, if he holds an office he can not escape from the prohibitions of the Revised Statutes, sections 1763, 1765. It does not appear that Congress intended to allow an officer two sala- ries when temporarily discharging the duties of acting paymaster by appointment under sec- tion 1381. (Webster v. U. S., 28 Ct.Cls., 25.) Entitled to larger compensation of the two positions. — ' ' It is the liberal custom of the Treasury Department to allow a person holding more than one office the compensation of that which is the larger." (Webster v. U. S., 28 Ct. Cls., 25. )_ "The offices of engineer and paymaster in the Navy are incompatible, and he who holds them is not entitled to the compensation of both, but is entitled to the larger of the two." (Webster v. U. S., 28 Ct. Cls., 25.) Not entitled to pay officer's longevity pay. — "Where a paymaster's clerk of the Navy is appointed, under sections 1381 and 1564 of the Revised Statutes, to perfora the duties of a paymaster, such acting paymaster is entitled to receive the base pay of the paymaster whose duties he is appointed to perform, but not his longevity pay." (18 Comp. Dec, 491; see also 21 Comp. Dec, 548; Ostrander v. U. S., 22 Ct. Cls., 218,222; Webster v. U. S., 28 Ct. Cls., 25.) Where the officer whose place is vacant held the grade of paymaster, with the rank of Acting appointments in general; see note to section 1410, Revised Statutes. Pay of officer under acting appointment; see section 1564, Revised Statutes. Restrictions upon employment of persons to receive and. pay money for use of the naval service on foreign stations, are contained in section 1550, Revised Statutes. Status of appointee w^hile acting. — "An officer duly appointed to act in any grade shall, while serving under such appointment, be entitled to the same command, precedence, and honors as if he held a commission in that grade of the same date as his appointment." (Art. R-1048, Navy Regs., 1913.) In determining the meaning of the Revised Statutes, and of subsequent acts of Congress, "the reference to any officer shall include any person authorized by law to perform the duties of such office, unless the context shows that such words were intended to be used in a more limited sense." (Sec. 1, R. S.) The words "paymaster or assistant pay- master" have been construed as including "any officer of the Pay Corps on duty"; (Art. .R-3006, Navy Regs., 1913; see also 22 Comp. Dec., 171); and as including assistant pay- masters of the Marine Corps, by virtue of sec- tion 1621, Revised Statutes (22 Comp. Dec, 171). Acting appointment not an office. — "An acting paymaster appointed by the senior offi- cer present is not an officer. He is not ap- pointed as required by the Constitution, takes no oath of office, and gives no bond as paymas- ter." (Webster v. U. S., 28 Ct. Cls., 25; see note to Constitution, Art. II, sec. 2, clause 2.) "From the above it will be seen that, strictly speaking, there is no such office in the Navy as acting assistant paymaster to which appel- lant could have been appointed. As a matter of law he was given an acting appointment to perform the duties of the assistant paymaster as pay officer on board a vessel at sea. * * * There is no evidence in the papers in the case that he took any oath as acting assistant pay- master, and even though he did it would not make him an incumbent of the office of acting assistant paymaster, because there is in law no such office. The distinction is between one acting as a.ssistant paymaster, and holding the office of acting assistant j)aymaster. He continued to hold office under his appointment as a paymaster's clerk;" (21 Comp. Dec, 548.) 472 The Navy. PL 2. REVISED STATUTES. Sec. 1381. lieutenant commander, there being two ranks in the grade of paymaster ^ — namely, lieutenant commander and lieutenant; held, that a pay- master's clerk appointed to perform the pay- master's duties is entitled to pay based upon the rank of lieutenant commander. (18 Comp. Dec, 491.) "The claimant was paid the salary of a paymaster in the first five years of service. He claims the pay of paymaster in the fourth five years, in whose place he was acting. Increase of pay for length of service in the Na\'y' is founded on the theory that an officer acquires experience and efficiency by the long performance of the same duties. It is not to be presumed that Congress intended to pay from the beginning the increased com- pensation allowed for length of service to one who is appointed temporarily to dischai'ge the duties of paymaster." (Webster v. U. S., 28 Ct. Cls., 25; "18 Comp. Dec, 491.) Termination of acting appointment. — Under section 1381 the continuance of the acting appointment "does not depend upon a discharge or revocation. It terminates when another paymaster reports for duty, and the pay continues at farthest only to the time when the acting officer's accounts are made up and filed." (Ostrander v. U. S., 22 Ct. Cls., 218.) By virtue of an appointment imder this law the claimant was authorized to perform the duties of the invaUd officer "until another pay- master or assistant paymaster should report for duty," and no longer. No phraseology in the appointment could confer greater rights than are herein authorized. Words which confer more, if any such are employed, are simply void. (Ostrander v. U. S., 22 Ct. Cls., 218.) A paymaster's clerk in the Navy, authorized under section 1381, Revised Statutes, to perform the duties of assistant paymaster, was delin- quent in settling his accounts in the latter capacity. During the period of delinquency he was a witness before a naval general court- martial. Held, That from the date his accounts should have been settled until he was dis- charged as a witness before the general court- martial his status was that of paymaster's clerk, to which status he reverted on the date that hia accounts should have been settled. Held, fur- ther. That a waiver of delinquency which was granted in forwarding his accounts to the Treasury Department did not operate to place htm in the duty status of settling accounts, and consequently did not entitle htm during that period to the pay of the officer whose duties he was appointed to perform. (21 Comp. Dec, 548.) Temporary absence of ofl&cer not a va- cancy. — The office of pa^onaster or assistant paymaster must become vacant before the con- ditions exist in which a person may be ap- pointed to act "until another paymaster or assistant paymaster shall report for duty." The temporary absence of a paymaster from his ship or station does not create a vacancy in his office as contemplated by the statute. (10 Comp. Dec, 135; compare sec. 179, R. S.,and cases noted thereunder.) Where an officer was acting in a double capacity, as pay ofiicer of a vessel and general storekeeper at the naval station, and while absent performing his duties as pay officer of the ship was directed to turn over to a pay clerk such of the duties of his station as coulS be legally executed by said clerk during his absence. Held, That this did not operate to detach the officer from the office of general storekeeper, and did not create a vacancy therein, so as to authorize the appointment of an acting assistant paymaster during such tem- porary absence. (10 Comp. Dec, 135.) Inherent power of President to provide for acting appointments. — Section 1381 ap- plies in terms to a vacancy in the office of ' ' pay- master or assistant paymaster." However, by Navy Regulations 1920 (Art. 1228), provision is made for actmg appointments by the senior officer present in case of the death, etc., of "any officer of the Supply Corps on duty." (See also Art. 1229.) Statutory authority was not necessaiy for the President to make a valid regulation providing that "on foreign stations a commander may, when absolutely necessary, give acting appoint- ments to fill vacancies which may be occa- sioned by death or other circumstances; but in such cases he shall take the earliest opportunity to make known the circumstances to the Secre- tary of the Na\'3', and state his reasons for making such acting appointments." This regulation was published in the Navy Regula- tions of 1818, commonly called the "Blue Book," under the head of "Appointments." After its promulgation it was considered "as entitled to respect and obedience. Many acting appointments, including acting pursers, have been made under it, which have received the recognition of the President, the Na\'y Department, and the accounting officers of the Treasury and the courts of law. * * * To fiU up a vacancy by an appointment of one to act ad interim and for a particular exigency in a distant service, is in its nature an executive, ministerial, and administrative power. " (6 Op. Atty, Gen., 357.) A statute which provides that an officer shall not act unless first approved by the Senate, must have a construction consistent with the exception to the power of the Senate, contained in the Constitution, whereby the President is authorized to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session, so that the statute shall not be in conflict with the Constitution. That is to say, there is an exception not ex- pressed in the statute but necessarily implied. The Constitution itself, in relation to the power of the President to fill up vacancies which may happen during the recess of the Senate, must have a reasonable construction, adapted to the end, utility, and practical effect intended in confen'ing that power. In the cases of officers of the Navy, on far distant ser\dce, in the dif- ferent seas and oceans, vacancies will happen which can not abide to be filled until the Presi- dent may be informed and exercise his appouit- iug power. To meet such exigencies, the Presi- dent may provide by regulation for the tem- porary filling of such vacancies by the naval commander. (6 Op. Atty. Gen., 357; in this connection, see sec. 1378, R. S.) 473 Sec. 1383. PI. 2. REVISED STATUTES. The Navy. Ill tlie absence of los;i3lati\'e authority, the comraaiuk'r of a squadron of the Navy on a foroipn station has power to appoint a pro- visional or acting dl'^hursing ofHccr in the ab- sence of any such ollicer duly appointed by the President. Although such appointment be subsequently disapproved by the Secretary of the Navy, still the acts which the acting officer may have performed while so acting are not thereby invalidated. (6 Op. Atty. Gen., 357.) F'or other cases, see notes to sections 177 and 181, Revised Statutes, and to Constitu- tion, Article II, section 2, clause 3. Sec. 1382. [Supply Corps ; paymaster of the fleet.] The President may desig- nate among the paymasters in the service, and appoint to every fleet or squadron a paymaster, who shall be denominated "paymaster of the fleet." — (24 May, 1828, c. 121, s. 2, V. 4, p. 313. 21 April, 1864, c. 63, s. 7, v. 13, p. 54.) Pay of fleet paymasters was fixed at $4,400 per annum by section 1556, Revised Statutes. (See note to that section.) See section 1373, Re\dsed Statutes, as to ap- pointment of fleet surgeons; and section 1393, Re\rised Statutes, as to appointment of fleet engineers. The -word "paymasters" as used in this section has been construed to mean any officer of the Supply Corps, and not as restricting details for this duty to officers in the grade of "paymaster." (See Art. R-1826 (2), Navy Regs., 1913, as amended.) Must be designated hy the President. — No designation other than that made by the President entitles a naval paymaster to the place and perquisites of paymaster of the fleet. (18 Op. Atty. Gen., 156; followed 5 Comp. Dec, 466; compare Art. R-1826 (2), Navy Regs., 1913.) The powers conferred by sections 1381 and 1382, respectively, are quite distinct. (18 Op. Atty. Gen,, 156.) Secretary of the Navy acts for the President. — "The action of the Secretary of the XaA^ in approving the designation of the fleet officers named by general squadron order may be regarded as the action of the President, and as a sufficient compliance with the law which authorizes him to make such appoint- ment. The action of the head of a department witliin the scope of his authority is to be taken as the action of the President himself." (5 Comp. Dec, 888, citing Wolsey v. Chapman, 101 U. S,, 755, 769; Wilcox v. Jackson, 13 Pet., 498, 513; U. S. V. Eliason, 16 Pet., 291; 4 Comp. Dec, 463; see also note to sec. 1393, R. S.) For other cases, see note to section 417, Re- vised Statutes, Approval by Secretary of the Navy not retroactive. — "The designation by the com- mander in chief of a naval squadron of a pay- master of the Navy as paymaster of the fleet does not entitle him to the increased pay of that position, and a subsequent approval of such designation by the Secretary of the Navy can not have a retroactive effect." (5 Comp Dec, 466,) Where designation was made by a com- mander in chief, and subsequently (more than a year later), was approved by the President, he did not become entitled from the date of his designation to pay as paymaster of the fleet. There is not any relation by the subsequent approval to the time of the designation by the Admiral, The latter act has no significance in point of law, no more than as any other recom- mendation made to an appointing power. (18 Op. Atty. Gen,, 156 : followed 5 Comp. Dec, 466,) Termination of appointment. — In the case of Denig v. U. S. (37 Ct. Cls,, 383) it was shown that the officer (fleet engineer) had no duties to perform as fleet engineer from the date the commander in chief was detached until his designation by the new commander in chief was approved by the Secretary of the Navy, his vessel in the meantime being sepa- rated from the rest of the fleet and no duty re- quired of claimant as fleet engineer. It was held that the officer was not entitled to pay as fleet engineer during the interim, "even if the detachment of the commander in chief was not of itself a revocation of his appointment as fleet engineer." (10 Comp. Dec, 817.) Pay when not performing duty.— "The effect of this decision [Denig v. U, S,, noted in preceding paragi-aph] is that, although Denig's appointment as fleet engineer continued un- revoked during said fifty-four days, he was not entitled to receive the pay of fleet engineer during that period, because the flagship upon wliich he was serving was separated from the rest of the fleet and no duties were required of him as fleet engineer." (10 Comp, Dec, 817,) "An oflicer of the Navy serving as paymaster of a fleet is not entitled while on leave of ab- sence to the pay of a fleet paymaster, but only to the shore pay of Ms rank." (10 Comp. Dec, 817,) Sec. 1383. [Supply Corps; bonds of officers.] Every paymaster, passed assistant paymaster, and assistant paymaster shall, before entering on the duties of his office, give bond, with two or more sufficient sureties, to be approved by the Secretary of the Navy, for the faithful performance thereof. Paymasters shall give bonds in the sum of twenty-five thousand dollars, passed assistant paymasters in the sum of fifteen thousand dollars, and assistant paymasters in the sum of ten thousand dollars. — (30 Mar., 1812, c. 47, s. 6, v. 2, p. G99; 1 Mar., 1817, c. 24, s. 1, v. 3, p. 350; 22 June, 1860, c. 181, s. 3, v. 12, 474 The Navy. Pt.2. REVISED STATUTES. Sec. 1383. p. 83; 17 July, 1861, c. 4, s. 5, v. 12, p. 258; 14 July, 1862, c. 175, s. 1, v. 12, p 575; 3 May, 1866, c. 72, s. 2, v. 14, p. 43.— U. S. v. Tingey, 5 Pet., 115.) Deficiency, when discovered, shall be reported by accounting officers to head of depart- ment, who shall immediately notify all obligors thereof; but failure to give such notice shall not discharge the sureties. (Act Aug. 8, 1888, sec. 1, 25 Stat., 387.) Disbursing clerks in executive departments: See section 176, Re^'ised Statutes, and note thereto, as to bonds required to be fur- nished. Disbursing officers against whom a warrant of distress has been issued for failure to ac- count for public moneys, must furnish bond in a prescribed sum before an injunction shall issue upon their complaint to stay pro- ceedings on such warrant. (Sec. 3636, R. S.) Examination of bonds shall be made at least once in two years by officers having power to take and approve such bonds, and by officers having power to fix the amount thereof, for purpose of ascertaining suffi- ciency of sureties and of approving or fix- ing the amount. (Act Mar. 2, 1895, sec. 5, 28 Stat., 807.) Navy* imail clerks and assistant Navy mail clerks are required to give bond in such sum as the Postmaster General may deem sufficient. (Act May 27, 1908, 35 Stat., 417, as amended by act Aug. 24, 1912, sees. 3 and 11, 37 Stat., 554, 560.) All bonds taken by the Post Office Department shall be made to the United States of America. (Sec. 403, R. S.) Pay of naval officer required to give bond commences, upon original entry into the service, upon date of approval of his bond. (See sec. 1560, R. S.) Premium on bonds furnished by surety or bonding company for any officer or em- ployee of the United States shall not be more than 35 per centum in excess of the rate of premium charged for a like bond during the calendar year 1908. (Act Aug. 5, 1909, 36 Stat., 125.) The United States shall not pay any part of the premium or other cost of furnishing a bond required by law or otherwise of any officer or employee of the United States. (Same act.) President is authorized, if in his opinion the in- terestof the United States require the same, to regulate and increase the sums for which bonds are or may be required by law of officers employed in the disbursement of the public moneys under the direction of the Navy Department. (Sec. 3639, R. S.) Renewal of bonds necessary at least once every four years; but where not so renewed, liability of principal or sureties shall not be affected. (Act Mar. 2, 1895, sec. 5. 28 Stat., 807; see also sec. 1384, R. S.) Special disbursing agents, other than officers of Army or Navj^ are required to give bond. (Sec. 3614, R. S.) Storekeepers on foreign stations: Civilian store- keepers appointed by Secretary of the Navy on foreign stations are required to give bond in amount fixed by Secretary of the Nav^r. (Sec. 1415, R. S.) Storekeepers on foreign stations: Officers of the Navy acting in such capacity are required to give bond in amount fixed by Secretary of the Navy. (Sec. 1439, R. S.) Suit on bonds: Sureties discharged if suit not instituted witliin five years after discovery of indebtedness. (Act Aug. 8, 1888, sec. 2, 25 Stat., 387.) Suit on bonds: Judgment at return term shall be granted by court when suit is brought by United States upon a bond, unless the defendant pleads "non est factum," or makes a motion to the court, verifying such plea or motion by his oath, and the court thereupon requires the production of the original bond, in which case a continuance may be granted until the next succeeding term. (Sec. 957, R. S.) Suit on bonds: Judgment that plaintiff recover so much as is due according to equity shall be rendered in suits to recover forfeitures annexed to bonds, where the forfeiture, breach, or nonperformance appears by de- fault or confession of the defendant, or upon demurrer; and when the sum for wnich judgment should be rendered is uncertain, it shall, if either of the parties requests it, be assessed by a jury. (Sec. 961, R. S.) Suit on bonds: Copies of bonds duly certified and authenticated are admissible in evi- dence in suits against delinquent officers, unless defendant pleads "non est factum" or makes his motion to the court, verifying such plea or motion by his oath, in which case the court may, if it appears to be neces- sary for the attainment of justice, require the production of the original bond. (Sec. 886, R. S.) Surety or guaranty company which complies with necessary requirements may be ac- cepted as sole surety on a bond. (Act Aug. 13, 1894, 28 Stat., 279, as amended by act Mar. 23, 1910, 36 Stat., 241.) I. Who Are Requieed to Give Bonds. II. Necessity of Furnishing Bond Be- fore Entering Upon Duty. III. Date from Which Bond Takes Effect. IV. Form of Bond. V. Sufficiency of Sureties. VI. Approval of Bond. VII. Condition of Bond. VIII. Conflict of Laws. IX. Liability of Sureties. X. Miscellaneous. I. Who Are Required to Give Bonds. See statutes noted above, under this section. Pay directors and pay inspectors, although not specified in the above section of the Revised Statutes, are required to give bond 54641 ' -31 475 Sec. 1383. Pt. RE VISED STAT UTES. The Navy. byNavy RogulatioTis, 1913 (art. R-3002), which jirovido that "before entering npon the dnties of his oflice every ollieer of the Pay Corps shall give bond for the faithful performance thereof, with snfllcient surety, to be approved by the Secretary of the Navy, and under such regula- tions or instructions as may ho issued from time to time by proper authority'"; and by Naval Instnictions, 1913 (art. 1-3901), which provide that "officers of the Pay Corps of the Navy, * * * and such other officers or officials as the Secretary of the Navy may direct, are re- quired to furnish bonds for the faithful per- formance of their duties." "\\'hile there is no express statutory author- ity requiring pay directors and pay inspectors to give bond, the department, in view of the fact that such officers have or may have dis- bursing accounts, requires that they give bond in the sum of twenty-five thousand dollars." (File 26284-94, May 8, 1909.) The Chief of the Bureau of Supphes and Accounts has no disliursing account and is not held personally responsible for the disburse- ment of public moneys under the bureau. Therefore in the absence of an express statutory requirement it is not considered necessary that he furnish a bond. * * * Should there be such a change in the business methods of the Bureau of Supplies and Accounts as would place public funds in the hands of the Pay- master General, in any capacity, it is consid- ered in such case that the public interests would indicate that a bond be required." (File 26284-94, May 8, 1909, Memo, of Solicitor, Nax-y Dept.) "Chief pay clerks, pay clerks, and acting pay clerks will be required to furnish bond for the faithful performance of their duties in the sum of five thousand dollars; and will be respon- sible imder said bond for all money and stores in their custody." (Art. R-3318A, par. 7, Navy Regs., 1913, file 3980-1283, Oct. 18, 1916, 201 S. and A. Memo. 4423, Dec. 1 , 1917; C. N. R. 11, Dec. 1, 1918. See 24 Comp. Dec, 650; 25 Comp. Dec, 550; and see decisions of the Supreme Court, noted below, as to the power of the head of a department to demand a bond in cases not required liy statute; see also above, as to pay directors and pay inspectors.) Enlisted men on duty iuA'olving the han- dling of Government stores and money may be required by the Secretary of the Navy to give bond. (Fi'le 3980-1283, Oct. 18, 1916, May 2, 1917, and July 31, 1917.) Pay OflB.cers, Naval Reserve Force, whether of the Fleet Naval Reserve or Naval Coast Defense Reserve, must furnish bond in conformity with section 1383, Revised Statutes, before their pav can commence. (Comp. Dec, Apr. 30, 1917, file 26254-2224:5; see also Comp. Dec, Apr. 14, 1917, file 26254-2222:1; Comp. Dec, Apr. 7, 1917, file 26254-2224:2.) Pay Officers, Naval Militia, assigned to duty under the provisions of section 11 of the Naval Militia Act of February 16, 1914 (38 Stat., 286, repealed by act July 1, 1918, 40 Stat., 708), not called into the service of the United States and not required to disburse Federal funds, are not required to give bond as officers of the Navy. (Comp. Dec, Julv 6, 1917, file 26254-2224:7.) The head of a department has power to demand a bond from an officer appointed to a place of trust, although there is no stat- utory authority to take such bond . It was held in United States v. Tingey (5 Pet., 115) that the United States had the right to take a bond to insure the faithful performance of duty on the part of an indiAidual or officer where such bond was voluntarily given and was not in viola- tion of any provision of law; but that no officer of the Government has a right, under color of his office, to require from any subordinate officer, as a condition of holding office, that he should execute a bond "with a condition different from that prescribed by law." The pow(>r of the Government to take bonds in cases where not required by any law or regulation , but only by direction of the head of a department, was recognized again in United States v. Bradley (10 Pet., 343, 359). (Moses v. U. S., 166 U. S., 571, 586, 587; but see, contra, 24 Comp. Dec, 650; compare 25 Comp. Dec, 550.) It is in the discretion of the President whether or not to reqiiire bond of an officer of the Engi- neer Corps employed as disbursing agent of the Government. (6 Op. Atty. Gen., 24; compare sec. 3614, R. S.) Although the general functions and diities of certain officers do not include specifically the disbursement of public money, and those officers are not required by statute to give bond, yet the head .of the department may lawfiilly assign to them duties within the general scope of their employment other than and in addition to those prescribed, whenever the exigencies of the public service require it. ^Mierethe partic- ular duty thus assigned involves the receipt or disbursement of public money, it is competent for the Secretary to take a bond for the protec- tion of the Government against loss, although such bond may not be required by statute ; and the bond would be valid and binding upon both principal and sureties if voluntarily given by the officer. (17 Op. Atty. Gen., 391.) The term "voluntary bond" does not mean that it must have been offered and pressed upon the Government when never asked for or demanded by it. It is a voluntary bond when it is not demanded by any particular statute or regulation based thereon, and when it is not exacted in violation of any law or valid regula- tion of a department. The Government in such cases has the right to demand a bond, in the absence of any law; but can not extort a bond from a reluctant officer with a condition therein contained different from that which a statute calls for. (Moses v. U. S., 166 U. S., 571 ; see also U. S. V. Maurice, 26 Fed. Cas. No. 15747; Jessup V. U. S., 106 U. S. 147; U. S. v. Rogers, 28 Fed. Rep., 607; Boehm v. U. S., 20 Ct. Cls., 241; 6 Op. Atty. Gen., 24.) The head of a department may "require" an officer to execute a "voluntary" bond in such penalty as the former may deem adequate to protect the public interests. (26 Op. Atty. Gen., 627.) Although there is no statute specially providing for the execution of a bond by one holding a particular office, the order of the head of the dei^artment that a bond bo executed is one which the Secretary has power to make. "The consideration or the condition of the bond 476 The Navy. Pt.2. REVISED STATUTES. Sec. 1383. must not be in violation of law ; it must not run counter to any statute; it must not be either malum prohibitum or malum in se. Otherwise and for all purposes of security, a bond may be valid, though no statute directs its delivery." (Moses 1'. U.S., 166 U.S., 571; but see 24 Comp. Dec, 650. Compare 25 Comp. Dec, 550.) In Moses v. U. S. (1G6 U. S., 571), and U. S. v. Dieckerhoff (202 U. S., 302), the court concluded by lajdng down the general rule that if the bond does not run counter to a statute, and is neither malum prohibitum nor malum in se, it is bind- ing upon all parties. And even though it run counter to a statute in one or more of its provi- sions, the bond is valid as to the others, pro\dd- ing they are properly severable from those which are invalid. (26 Op. Atty. Gen., 70, 72; citing also U. S. r. Mora, 97 U. S., 421, and U. S. V. Hodson, 10 Wall., 395.) Having the right to take a bond in a case where it is not required by statute, the Govern- ment has the right to demand it from the officer and to say to him that if he do not give it he will not be continued in the office. Such a demand, when complied with, does not amount to the illegal exaction or extortion of the bond. The case of a bond so prociu-ed differs radically from a case in which a bond is extorted from a reluctant officer with a condition therein con- tained different from that which a statute calls for. (Moses t;. U. S . , 166 U. S . , 571 . ) The chief of an office in the War Department has the power to designate one of the officers de- tailed for service under him as a "property and disbiu-sing officer," to whom shall belong, as provided for in the order of such chief, the custody of all Government property and funds pertaining to the office; and such chief has the power, under the general direction of the Secre- tary of War, to provide that the property and disbursing officer shall be responsible for the due execution of his duties as such. Where in such a case the Secretary of War directed the property and disbursing officer so designated to give bond as such officer, he thereby recog- nized and in effect pro\'ided that there should be such an office. A bond having accordingly been given for such faithful performance, and such officer having been guilty of the forgery of vouchers and the embezzlement of public moneys officially received by him, such con- duct was a plain violation of his duty as such officer, and the condition of the bond, as it plainly covered such conduct, was \'iolated thereby. (Moses v. U. S., 166 U. S., 571.) "A distinction is drawn in this class of cases between a bond compulsorily executed, as in the case under consideration, and a bond or other obligation voluntarily given to the Gov- ernment for which there is no statutory author- ity. In this latter case the bond has been held to be valid." (Constable v. National Steam- ship Co., 154 U. S., 51, 78.) "The United States, for instance, as incident to the general right of sover- eignty, have the capacity, within the sphere of their constitutional powers, and through the instrumentality of the proper department, to enter into contracts and take bonds, not pro- hibited by law, and appropriate to the just exercise of those powers, although not expressly directed or authorized to do so by any legisla- tive act. ' ' (Van Brocklin v. State of Tennessee, 117 U. S., 154.) WTiere a bond given by an officer is objection- able in point of form, the direction of the head of the office to execute a new bond must be con- sidered as that of the head of the department, and the bond given in compliance therewitli can not be considered as ha\T.ng been extorted from the officer and his sureties contrary to stat- ute. (Soule V. U. S., 100 U. S., 8.) "Every one is presumed to know the law. Ignorance standing alone can never be the basis of a legal right. If a bond is liable to the objection taken in this case and the jjarties are dissatisfied, the objection should be made when the bond is presented for execution. If executed under constraint, the constraint will destroy it. But where it is voluntarily entered into, and the principal enjoys the benefits which itisintended to secure, and a breach occurs, it is then too late to raise the question of its validity. The parties are estopped from availing them- selves of such a defense. In such case there is neither injustice nor hardship in holding that the contract as made is the measure of the right of the Government and of the liability of the obligors." (U. S. v. Hodson, 10 Wall., 395, 409.) Where a statute directs a bond to the Govern- ment to be given by persons exercising certain employments, and to be conditioned for the performance of several particular acts which it specifically states, and the agent of the Govern- ment takes a bond conditioned , not in the spe- cific way that the statute directed but for the party's compliance with "aZZ the pro\T.sions" of the act, ' ' and such other acts as are now or may hereafter be in this behalf enacted," the bond, if it has been voluntarily given, and is not con- trary' to law or public policy, is valid as against a party who has enjoyed benefits under it. And this although the statute which required the bond to be conditioned in a particular way contain numerous other provisions which it makes the duty of persons exercising employ- ments under it to comply with, but for which it does not contemplate the gi\'ing of any bond. (U. S. V. Hodson, 10 Wall., 395.) II. Necessity op Furnishing Bond Before Entering upon Duty. Requirement held to be mandatory. — Where public officers are reciuired to give bond previously to entering upon the execution of their respective offices, held that they can not execute their offices before giving bond, because the bond is a preliminary to the execution. (5 Op. Atty. Gen., 687.) Requirement held not mandatory. — Where a statute required that pajnnasters in the Ajmy "shall, previously to entering on the duties of their offices, give good and sufficient bonds to the United States, fully to account for all moneys and public property wliich they may receive, in such sum as the Secretary of War shall direct," held that an officer's "appoint- ment as paymaster was complete when his ap- pointment was duly made by the President and confirmed by the Senate. The giving of the bond was a mere ministerial act for the security of the Government, and not a condition prece- dent to his authority to act as pav-master. 477 Sec. 1383. Pt. f. REVISED STATUTES. The Navy. Having received the public moneys as pay- master, he must account for them as paymaster. ' ' (U. S. r. Bradley, 10 Tet., 343, 3G4.) Where a statute required an officer, "before he enter upon the duties of his oflice," to give bond: i/cW That the emoluments of the office "were the considerations allowed him for the execution of the duties of his office; and his appi^intmcnt and commission entitled him to receive this compensation, whether he gave any security or not"; held, fur thrr, that he was a de jure as well as a de facto officer prior to furnishing bond. (U. S. v. Linn, 15 Pet., 290, 313.) "When a person has been nominated to an office by the President, confirmed by the Sen- ate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete. Congress may provide, as it has done in this case, that certain acts shall be done by the appointee before he shall enter on the possession of the ofiice under his appointment. These acts then become conditions precedent to the complete investiture of the office; but they are to be performed by the appointee, not by the executive; all that the executive can do to invest the person with his office has been com- pleted when the commission has been signed and sealed; and when the person has performed the required conditions, his title to enter on the possession of the office is also complete." (U. S. V. Le Baron, 19 How., 73, 78.) In view of former decisions (U. S. v. Bradley, U. S. V. Linn, and U. S. v. Le Baron, above noted), ' ' it can not be held that the execution by Glavey of the bond required bj^ the act of 1882 was a condition precedent to his right to exer- cise the functions of the office to which he was appointed by the Secretary of the Treasury. Congress did not so direct. His appointment was complete, at least, when he took the re- quired oath and transmitted e\'idence of the fact to the Secretary. After taking the oath, evidencing thereby his acceptance of the ap- pointment, he was entitled to proceed in the execution of the duties of his office, and became liable for any failure to properly discharge them." (Glavey v. U. S., 182 U. S., 595, 604. In this case the statute did not require the bond to be executed before entering on the duties of the office.) "^Mien an office with a fixed salary has been created by statute, an appointment thereto is complete when duly made by the President and confirmed by the Senate, and the giving of a bond required by law is a mere ministerial act for the security of the Government, and not a condition precedent to his authority to act in performance of duties of the office. " (Glavey v. U. S., 182 U. S., 595; see also U. S. V. Eaton. 169 U. S., 331.) The provisions of section 1383, Revised Statutes, are directory only and do not pre- clude a paymaster who has given bond and whose bond has been approved from the receipt of the pay of that office for a period prior to the date of its approval (citing 4 Comp. Dec, 496). There is, however, a separate general statute (sec. 1560, R. S.) which does preclude assistant paymasters of the regular naval service from the receipt of pay prior to the date of the ap- proval of their bond as assistant paymasters. (Comp. Dec, Apr. 7, 1917, file 26254-2224:2.) Pay commences prior to furnishing' bond. — Pay of disl)urHing officers may com- mence prior to furnishing bond^ — that is, upon acceptance of appointment or entering upon duty — the same as other officers, although statute requires that said officers shall give bond "before entering upon the duties of their re- spective offices." (16 Op. Atty. Gen., 38; see also U. S. V. Eaton, 169 U. S., 346; Glavey v. U. S., 182 U. S., 595; U. S. v. Bradley, 10 Pet., 343; U. S. t;. Linn, 15 Pet., 290.) The giving of a bond required by law by a person appointed to an office is a ministerial act, and not a condition precedent to the per- formance of duty or to the right to compensa- tion. (9 Comp. Dec, 101.) Statutes which require that an officer shall give a bond before entering upon the duties of his office are directory only, and a receiver of public moneys who after his appointment en- tered ui)on the duties of his office prior to giviog a bond, is entitled to the compensation of the office from the date of his entry upon duty. (20 MSS. Comp. Dec, 473; see also 4 Comp. Dec, 496.) [Prior to the above decisions, it was held by the Comptroller of the Treasury that where there are certain acts to be done by the ap- pointee, as for instance the giving of a bond, those acts are conditions precedent to the com- plete investiture of the office, and accord- ingly where a statute required an ofiicer to give bond satisfactory to his chief, he was not entitled to be paid for his services prior to the date of approval of his bond by liis chief. (2 Comp. Dec, 26; see also 2 Comp. Dec, 330; 2 Comp. Dec, 448; and 3 Comp. Dec, 447.)] Compensation can not be paid prior to furnishing bond. — It has been repeatedly held that officers are not entitled to salary or com- pensation where they have failed to give the bond required by a statute providing that such bond shall be given before the officer "enters upon the duties of his office. " In the case of U. S. V. Eaton (169 U. S., 331), it was held that the requirement as to giving bond by a consular officer before entering upon the duties of his office was directory, and in that case, where the officer did actually give bond, he was entitled to compensation for a period during which he performed the duties of the office before his official bond was received and approved. The Comptroller has regarded this decision of the Supreme Court as meaning that the statutory provision is directory as to the time of perform- ance merely; it is nowhere suggested in the Eaton case t;hat the requirement as to the giving of the bond was merely directory. All the pro- visions of a statute are meant to be obeyed, or they would not be enacted. Accordingly, held that an officer who was appointed and took the oath of office, but died before execution of bond required to be given before entering upon duty, was not entitled to an allowance of salary for the period between the date of oath and his death, notwithstanding that the failure to give bond was dtie to his absence from the United States when appointed, and his death prior to his qualifying under such appointment, and not to fault or neglect on his part. (15 Comp. Dec, 478 The Navy. Pt.2. REVISED STATUTES. Sec. 1383. 418; citing 8 Comp. Dec, 201; compare 21 Comp. Dec, 49.) In the case of Glavey v. U. S. (182 U. S., 595), it was decided that an officer was entitled to the salary of his office although he had failed to execute an official bond; but in that case, although the statute required that he should "execute a proper bond," the bond itself was to be "in such form and upon such condi- tions as the Secretary of the Treasury may prescribe," and there was no inhibition as to his entering upon duty before giving such bond. The bond was not given for the reason that the Secretary of the Treasury failed to prescribe the form of the bond or the condi- tions thereof and did not require any bond of the officer. It will be readily seen that the law and facts in the Glavey case differ mate- rially from those in a case where the statute requires the bond to be given by the officer before entering upon the duties of his office and can not be construed to entitle the latter officer to salary where he failed absolutely to give a bond. (15 Comp. Dec, 418.) "Where an officer was temporarily appointed to a vacancy, but did not take the oath of office nor give bond, and was subsequently given a new appointment to the same position for which he duly qualified : Held, That he was not entitled to the salary of the office under the first appointment until he had qualified by taking the proper oath and gi\dng bond as required by law; and that the fact that he had qualified under the second appointment would not prohibit him from subsequently qualifjing under the pre\'ious appointment, it being understood that he had accepted such pre\T.ous appointment and immediately entered upon the duties of the office thereunder. (17 Comp. Dec, 95; see also Comp. Dec, Jan. 30, 1917, file 26254-2189, regarding pay of Na\-y mail clerks.) An officer is not invested with the office imtil he gives the bond required by law; nor can he recover the salary of the office where he has neglected to give bond. (Dainese v. U. S., 15 Ct. Cls., 64.) An appointee is not invested with an office nor entitled to the salary thereof until he complies with the conditions imposed by law, such as taking the oath of office and gi\ing bond, if one be required. (WilUams v. U. S., 23 Ct. Cls., 46.) Compensation of naval ofl3.cer com- mences upon date of approval of bond. — The pay of a naval officer required to give bond commences upon original entry into the service upon date of approval of his bond. (Sec. 1560, R. S.) The Nav-y Regulations provide that, when an officer is required to give bond, "his pay shall begin upon the date of approval of his bond by the Secretary of the ^*a\-y, provided he has already accepted his appointment and taken the oath of office" (Art. R-4416, Navy Regs., 1913); but "an officer of the Pay Corps, when promoted, is entitled to increased pay from the date of his promotion, his bond in the lower grade being binding until his new bond in the higher grade is approved " (Art. R-4418, Navy Regs., 1913, as amended by C. N. R. 7, Sept. 15, 1916). There is no statute requiring the pay of an assistant paymaster on his advancement to the rank of lieutenant (junior grade) to commence from the date of the approval of his bond. (Comp. Dec, Apr. 7, 1917, file 26254-2224:2.) "^Tiile section 1383, Revised Statutes, is direc- tory only, and does not preclude a paymaster who has given bond and whose bond has been approved, from the receipt of the pay of that office for a period prior to the date of its ap- proval, section 1560, Revised Statutes, does preclude assistant paymasters of the regular naval service, in common v^ith all other regular naval officers, from the receipt of pay prior to the date of the approval of their bond. The same law is made applicable to assistant pay- masters on their original entry into the Naval Reserve Force, and the pay of the latter is like- wise prohibited from beginning prior to the date of the approval of their bond, (Comp. Dec,, Apr. 7, 1917, file 26254-2224:2; see also Comp. Dec, Apr. 14, 1917, file 26254-2222:1.) Section 1560, Revised Statutes, as applied to the Naval Reserve Force, relates to the original entry of a Naval Reserve officer into the Naval Reserve Force; the fact that the officer origi- nally entering that force had pre\iously served in the Na^y would not differentiate him from one who had entered it without previous naval service. (Comp. Dec, Apr. 30, 1917, file 26254- 2224:5.) Should a fonner officer be reappointed to the regular naval service as a passed assistant pay- master or paymaster, directly from civil life, he would come within the piu^iew of section 1560, and his pay would be, by that section, precluded from commencing from a date prior to that of the approval of his bond. (Comp. Dec, Apr. 30, 1917, file 26254-2224:5.) The payment of compensation to an officer of the Navy upon his original entry into the service, for a period from the date he accepted his appointment until the date his bond was approved by the proper authority, is in viola- tion of section 1560, Revised Statutes. The evident object of that section is to protect the Government by insuring the giving of the required security in handling the public funds. Before approval of his bond the officer is in a status similar to that of a de facto officer, as he is not fully qualified as an officer de jure. Where, therefore, he has been paid his salary" under the circumstances stated, he is entitled to retain same, itappearing that he subsequently gave bond a few days before his discharge from the service took effect. (18 Comp. Dec, 596.) ^Tiere a candidate for appointment as assistant paymaster in the Navy after his commission has been issued but prior to its receipt by him and prior to receipt of notice by him that he had been commissioned and prior to accepting the office or taking the oath of office or entering upon duty, executed^ an official bond in anticipation of his appoint- ment: Held, That under section 1560, Revised Statutes, and the Navy regulations pursuant thereto, he was not entitled to pay prior to the date of his acceptance of the appointment and taking the oath of office. (19 Comp. Dec, 358.) The appointment as a temporary assistant paymaster of an acting pay clerk, temporarj-. 479 Sec. 1383. Pt.2. REVISED STATUTES. The Navy. who. as sucli actinp; pay clerk had given a bond for $5,000, was not. an original entry into the BL-rvice within the meaning of section 1560, Revised Statutes, but was substantially a pro- motion, and he is entitled to })ay as assistant paymaster prior to approval of his bond as such. (25 Comp. Dec, 550; compare 24 Comp. Dec, 650.) Date of bond. — "Every bond shall bear date even with or subsequent to the date of the commission or appointment." (Art. 1-3903, Naval Instructions, 1913.) "Every bond shall bear date even with or prior to that of the affidavits of the sureties and to that of the certificates as to their sufficiency." (Art. 1-3904, Naval Instructions, 1913.) III. Date from which Bond Takes Effect From date of delivery. — "A bond may not be a complete contract until it has been accepted by the obligee; but if it be delivered to him to be accepted if he should choose to do so, that is not a conditional delivery, which will postpone the obligor's undertaking to the time of its acceptance, but an admission that the bond is then binding upon him and will be BO from that time, if it shall be accepted. When accepted, it is not only binding from that time forward, but it becomes so upon both from the time of delivery. This is the offer which the obligor makes when he hands the bond to the obligee, and in that sense the obligee received it." (Broome v. U. S., 15 How., 143, 153. In this case the statute did not require the officer to give bond before enter- ing upon duty, but within three months there- after.) It is not necessary that the bond be handed to the officer charged with its approval. It may be handed to an agent appointed by that officer to receive it, or it may be put into the possession of any person to deliver it, or it may be transmitted by mail. If done in any one of these ways, it is a delivery from the moment that the collector and his sureties part with it. It is from that moment in the course of trans- mission, wdth the intention that the law may act upon it through the agency of the approving officer, and his subsequent approval is an ac- ceptance with relation to the time beginning the transmission. A written acceptance dated after a delivery is not to be taken as the time from which the completeness of the contract is to be computed ; but such an acceptance has a relation to the time of delivery, making that time the beginning of its obligation upon the parties to the bond . (Broome -y . U . S . , 15 How . , 143.) "The possession of the bond by the Treasury Department was prima facie evidence of de- livery." (Duncan v. U. S., 7 Pet., 435, 447.) The general rule of law is that. Like a deed, an official bond becomes operative from the date of its delivery. In the absence of evi- dence to the contrary, the delivery wiU be presumed to have been made on the day of its date. But where it is pro\'ided by statute that the official bond to be given by an officer shall be approved by another officer, other considerations arise. In Broome v. United States [above noted] it was held that an official bond, when aiccepted, is binding from the time of its delivery; but in that case the statute provided that the officer should give bond ' ' within three months after he enters upon the execution of the duties of his office"; and in United States v. Le Baron [noted below] the court distinguished this case from one where no time is allowed after entering upon the duties of the office for giving the bond required by law, and held that in the latter case the bond speaks only from the time of its accept- ance and "can not be intended to relate back to any earlier date." But in Glavey v. United States (182 U. S., 595) the court, after reviewing prior decisions, including United States V. Le Baron, held that the giving of an official bond required by law to be given by an officer is a mere ministerial act for the secm-ity of the Government, and not a condition prece- dent to his authority to act in the performance of the duties of his office. "I think, therefore, the principle enunciated in Broome v. United States, supra, that when a bond is accepted it becomes binding from the time of delivery must be regarded as controlling. This princi- ple is sometimes expressed in different lan- guage, it being held that a subsequent approval of an official bond must be deemed to relate back to the time the bond was delivered for approval." (14 Comp. Dec, 428; compare 17 Comp. Dec, 86, noted below, under "Intention of parties controlling.") From date of approval. — "The bond of an officer of the Pay Corps takes effect from the date of its approval by the Secretary of the Navy." (Art. R-3002 (3), Navy Regs. 1913.) In Broome v. United States [noted above] it was held that a bond may be deemed to be de- livered when it is put in course of transmission to the officer whose duty it is to examine and approve or reject such bonds. But this de- cision proceeded upon the ground that the act of Congress there under consideration allowed the officer to exercise his office for three months without a bond; and that consequently the approval and delivery were not necessarily simultaneous acts, nor need the approval pre- cede the delivery; and the distinction was ad- verted to between the case then presented and one in which the statute required the officers to give bond with approved security on their ap- pointment, and allowed them no time, after entering on their offices, to comply with this requirement. In the latter case the bond must be accepted by the head of the department as sufficient in point of amount and security before it can have any effect as a contract; otherwise the officer might enter on the office merely on giving a bond which, on its presentation, the head of the department might reject as insuffi- cient. In other words, the person appointed might act without any operative bond, which was not intended by Congress. The purpose of the surety was to become security for one legally authorized to exercise the office, not for one who entei'S on it unlawfully because he failed to comply with the requirement to fur- nish an approved bond; and this purpose can be accomplished only by holding that the ap- pointee can not act, and the bond can not take effect, until it is approved. Our opinion is, 480 The Navy. Ft. 2. REVISED STATUTES. Sec. 1383. therefore, that this bond speaks only from the time when it reached the head of the depart- ment and was accepted by him; that until that time it was only an offer or proposal of an obh- gation which became complete and effectual by acceptance; and that, unlike the case of an officer's bond which is not a condition precedent to his taking office and which may be intended to have a retrospective operation, the bond in this case can not be intended to relate back to any earher date than the time of its acceptance, because it is only after its acceptance that there can be any such holding of the office as the bond was meant to apply to. (U. S. v. Le Baron, 19 How., 73; compare Glavey v. U. S., 182 U. S., 595, and 14 Comp. Dec, 428, noted above, under "From date of dehvery.") The officer was required by law to give bond before entering upon the duties of his office. According to the principles laid down in the case of United States v. Le Baron, a bond given under that provision must be considered to speak and to take effect, not from the day of its date, but from the date upon which it was approved. (14 Op. Atty. Gen., 7.) ■'It is settled that a bond of that character takes effect on the date of acceptance, and it is from that time it speaks." (Moses v. U. S., 166 U. S., 571, citing U. S. v. Le Baron, 19 How., 73 and 4 Wall., 642. 647.) For cases as to what constitutes approval, see below, "VI. Approval of Bond." Intention of parties controlling. — WTiere the bond is tendered under such circumstances as to show that it is intended, if accepted, to be effective from its date, it relates back, when accepted, to its date. '\Miere. however, it is executed under such circumstances as to show that it is tendered as an offer of an obligation to take effect when approved, it neither relates back nor is completely executed until ap- proved. In such case the date of approval will be taken as the date of final deliveiy, and all accounts under such bond should be started by taking that as the date of delivery. (17 Comp. Dec, ^86.) It is not ordinarily a prerequisite to the legal holding of an office that a bond be approved when a person enters upon the duties of his office. A bond afterwards given may relate back to his entry upon office, or may be effec- tive from the time it was delivered, or when it was approved, or when he entered upon office, depending upon the circumstances of its exe- cution. (17 Comp. Dec, 86.) The liability upon a renewal bond in some instances commences when it is delivered, in other instances when it is approved. No in- flexible rule can be laid down covering all cases as to when the liabilitj' of one bond ceases and when the other commences. These are questions of law, in no way depending upon the convenience of the auditors in stating accounts under them. Q7 Comp. Dec, 86.) The presumption that delivery was made on the date of the bond would not obtain where it was clear that the delivery of the bond was a mere offer, or was intended as an escrow. In Buch case it could only become operatiA-e from its date by relating back to the time of its exe- cution. (17 Comp. Dec, 86.) May be made retroactive. — A bond volun- tarily given by an officer of the United States for the faithful discharge of the duties of his office, under a statute requiring such officers to give bond "for the faithful discharge of the duties of their respective offices," may be worded so as to operate retroactively. Such a bond does not contain provisions or conditions differing from or in any wise inconsistent with those prescribed or required by law. (29 Op. Atty. Gen., 28.) The manifest purpose and intent of the law is that the United States shall be fully secured for the faithful discharge by public officers of their duties, and therefore it is in entire con- formity with the purpose of the act to require that a bond given by such an officer shall cover his entire term. It frequently occurs, however, that the public interests require that an officer enter upon the discharge of his duties before he is able to give the requisite bonds, or, as the statute contemplates, a new bond may be necessary in order to increase or strengthen existing bonds. To hold, therefore, that in such a case the bond could not be made to cover his prior ser\-ice, even if voluntarily given, would be to say that the statute requires the Government to go unprotected to that ex- tent. Such a view is contrary to sound princi- ples of public policy, and is not required by any consideration of justice or protection to the official who gives the bond. (29 Op. Atty. Gen., 28.) Where an officer was temporarily appointed to a vacancy, but did not take the oath of office nor give bond, and was subsequently given a new appointment to the same position, for which he duly qualified: Held, That the fact that he had qualified under the second ap- pointment would not prohibit him from sub- sequently qualifying under the pre\-ious ap- pointment by taking the proper oath and giv- ing bond as required by law, it being imder- stood that he had accepted such previous ap- pointment and immediately entered upon the duties of the office thereunder. (17 Comp. Dec, 95.) IV. Form of Bond. In general. — In the case of some officers the form of bond is prescribed by statute (e. g., see sec. 2619, R. S.. as amended by act Feb. 27, 1877, chap. 69, secl,]9 Stat., 245). In the case of other officers, the form of the bond, by express terms of the statute requiring it, is to be prescribed by or to be subject to the ap- proval of the President, head of department, or other officer named therein (e. g., see sec. 1697, R. S.). In most cases, however, where offiical bonds are reqiiired, the form thereof is tacitly or impliedly left by Congress to be regu- lated or fixed by the officers by whom the bonds are to be approved. Section 1383, RoAdsed Statutes, belongs to this class of cases (18 Op. Atty. Gen., 274). Must be under seal. — "The term bond, ex vi termini, imports a sealed instrument, and, as a general rule, independent of any statute proA-iding otherwise, sealing is neces.sary to constitute a perfect bond. * * * The seal is not a mere formality of execution, but a mat- 481 Sec. 1383. PL 2. REVISED STATUTES. The Navy. ter of substance which gives to the paper cer- tain lofral effects which cannot be attached to an unsealed paper. * * *" (26 Op. Atty. Gen., 507.) Where an act of Congi-ess directs the security to be taken by bond, an instrument not under seal was not a bond and was not in form the instrument required by the act of Congress. (U. S. V. Linn, 15 Pet., 290; see also Moses v. U. S.,166U.S.,571;U.S. t'.Linn.,inow.,104.) ^Tiere the bond sued on had no seal opposite the name of one of the oblitrors, and there was no e\'idence that he had adopted the seal of any of the other parties to the instrument, it was held that the mstniment was not his bond, because in fact there was no e\ddence of any seal belonging to him ever having been affixed, and no siu'h seal was on the instrument when it was produced on the trial. (Moses v. U. S., 166 U. S., 571,582.) Bonds must be sealed, and for abundant caution they should be sealed with wax or wafer and paper cap, which are everywhere acknowledged to be seals; although scrolls or any other sealing would be valid wliich is a good sealing in the place where they are exe- cuted. (2 Op. Atty. Gen., 93.) "Seals of wafer or wax shall be attached to the bond at the place indicated, opposite the places for the signatures of the principal and Biireties." (Art. 1-3905, Naval Instructions, 1913.) " In all cases where a seal is necessary by law to any commission, process, or other instrument provided for by the laws of Congress, it shall be lawful to affix the proper seal by making an impression therewith dii'ectly on the paper to whjch such seal is necessary; which shall be as valid as if made on wax or other adhesive sub- stance." (Sec. 6, R. S.) In an action on an official bond, although the copy of the bond sued on, which was certi- fied from the Treasury Department of the United States, exhibited a scroll instead of a seal, it may be presumed that the original bond had been executed according to law. (Dun- can V. U. S., 7 Pet., 435.) A corporation may adopt for the purpose and use a seal other than its corporate seal on a bond so as to make the bond a corporate deed of the corporation. An agent of a corporation, ap- pointed by an instrument under the corporate seal of the corporation, may on its behalf adopt a special seal so as to make it, in executing the purpose for which he was appointed, the cor- porate seal of the corporation. (26 Op. Atty. Gen., 507.) For other cases, see below "Alteration of bond." May be valid instrument although not under seal. — Although an unsealed instru- ment purporting to be an official bond is not a "bond" and does not meet the statutory requirement, nevertheless held that such instrument was good at common law. The actual difference between an instrument under seal and one not under seal is that in the one case the seal imports a consideration and in the other it must be proved. There ought to be some very strong grounds to authorize a court to declare a contract absolutely void which has been voluntarily made upon a good con- sideration and delivered to the party for whose benefit it was intended. The mere want of seals is not such a departure from the statute as to warrant the court, upon any supposed principles of public pohcy, to pronounce the iuKtrimient utterly void; it being good at com- mon law, and given in furtherance of the great object of the statute, and as security for the faithful discharge of the duties required of the office. (U. S. V. Linn, 15 Pet., 290.) "The United States v. Linn was an action against a receiver of public moneys and his sureties. The statute in that case required that the receiver should 'give bond, with approved security, in the sum of ten thousand dollars, for the faithfiil discharge of his trust.' The instrument given was without seal, and was, therefore, not the security required by the statute. The counsel for the defendants insisted that the instrument was void for the reasons, among others, that it was not the form of security required by the statute; that the prescribing of one security was an implied prohibition of all others; and that if the instru- ment in question could be sustained, the statute might in all cases be disregarded and a mortgage of realty or personalty or any other imaginable security might be substituted for that which the statute required. The court responded: 'If this is a contract, entered into by competent parties and for a lawful purpose, not prohibited by law, and is founded upon a sufficient consideration, it is a valid contract at common law. A mortgage, or any other approved security voluntarily given, would no doubt be vaUd.' " (U S. v. Hodson, 10 Wall., 395, 408.) Names of parties. — The law recognizes but one Christian name; hence the bond with siu-eties, and the oath of office of a receiver of public moneys, subscribed "Benjamin F. Edwards," where the commission had issued to "Benjamin Edwards," are valid. (2 Op. Atty. Gen., 332.) "A mistake in the baptismal name of an obligor to abend, executed by his attorney didy authorized to execute a bond in his right name, does not ^dtiate the bond, the error being shown to be purely accidental." (Dolton -y. Cain, 14 Wall., 472.) See 9 Op. Atty. Gen., 128, holding that a bond, to be accepted by the Govern- ment, ought to be executed by the parties, and not by their attorney. ^Vhere the statute requires the giving of seciu-ity to seciire payment "to the Treasurer of the United States," this does not mean that the bond should be made payable to the Treas- urer of the United States; it may be made pay- able directly to the United States and con- ditioned that payment shall be made to the Treasurer and not depart from any express provision of the law. But if the statute should be construed to mean that the bond shall be payable to the Treasurer, still we are of opinion that a bond in which the Uiuted States is the obligee, and which is conditioned that payment shall be made to the Treasiu-er, is a valid and binding obligation. The authorities show that the United States can, without the au- thority of any statute, make a valid contract, and that when the form of a contract is pre- scribed by the statute a departure from its 482 The Navy. PL 2. REVISED STATUTES. Sec. 1383. directions will not render the contract invalid. The bond is good at common law. (Jessup V. U. S., 106 U. S., 147.) Where the United States of America are the obligees, a misdescription of the incorporate or political name in the bond by calling them "United States of North America" furnishes no valid ground of exception, there being an averment of identity in the declaration. (U. S. V. Bradley, 10 Pet., 343.) Witnesses. — The attestation of witnesses to a bond is merely for convenience of proof. The law does not requii'e such witnesses, but it is expedient and safe always to require them. (17 Op. Atty. Gen., 285.) No attestation is necessary to their validity, although witnesses may be useful and con- venient to make proof of handiATiting in case of necessity. (2 Op. Atty. Gen., 93.) Acknowledgment. — "An acknowledgment is the act of one who executes a deed on going before some competent officer or court and de- claring it to be his act and deed. The functions of an acknowledgment are twofold, to authorize the deed to be given in e'vidence without f lu^ther proof of its execution, and to entitle it to be recorded. * * * Bonds differ from deeds in that the former are not required to be re- corded. For that reason, no acknowledgment as to them is, in my opinion, necessary." (26 Op. Atty. Gen., 507.) Certificate of sufficiency. — There is no law requiring a United States judge or a United States attorney to certify as to the sufficiency of guarantors or bondsmen, and no fees are chargeable against the Government for such sei-vice. (19 Op. Atty. Gen., 181. See below "Expense of fiunisliing bond," under "X. Miscellaneous.") Where the law then in force required the bond of a purser in the Xa\-y to be approved by the judge or attorney for the United States of the district in which the purser resided, it was held that to save the necessity of proof on this subject, the residence should be expressed in the body of the instrtiment; held, further, that the certificate of the district attorney approving the sureties is, to all sub- stantial purposes, an approval of the bond. (2 0p. Atty. Gen., 93.) Where the law required that the sureties on a naval officer's bond shall be approved by the judge or attorney for the United States of the district in which such naval officer shall reside, it was held that the certificate of a district at- torney was sufficient although he did not use the word "approved," which was used in the statute; but his certificate that the sureties were "good and sufficient" was, to all substan- tial purposes, an approval. (2 Op. Atty. Gen., -93.) By Naval Instructions, 1913 (art. 1-3910), it is pro\'ided that "the sufficiency of the sureties shall be certified to by a judge or a clerk of a United States court for the district in which the sureties reside, or by a United States attorney for such district." [Theact of March 1,1817, chapter 24, section 1, 3 Stat., 350, which is one of the statutes cited by the revisers in their note to section 1383, pro- vided that the sureties on bonds of naval offi- cers "shall be approved by the judge or attor- ney for the United States, for the district" in wliich such naval officers shall reside. How- ever, this provision of the original law was not embodied in the Revised Statutes, and was therefore repealed by section 5596, Revised Statutes. In this connection see below, "Re- newal of bonds," under "V. Sufficiency of Sureties.''] Temporary appointment. — AMiere a tem- porary appointment of an officer has been made by the President, the recital in the official bond should be in conformity with the nature of the appointment. (9 Op. Atty. Gen., 53.) Parties jointly and severally bound for full amount. — The form of bond required to be given by a public officer — whether the par- ties thereto are to be jointly and severally or may be only jointly bound, and whether each surety is to bind himself for the full amount of the penalty or may restrict his liability to a less amount — where not made the subject of statutory regulation is left to the determina- tion of the officers by whom the bond is to be approved. (18 Op. Atty. Gen., 274.) The form ordinarily made use of in practice is that wherein the principal and sureties are jointly and severally botmd for the full amount of the penalty. _ (18 Op. Atty. Gen., 274.) This form being preferable to any other, and its use sanctioned by long practice, the adop- tion of a different form, though it may not be inconsistent with the terms of the statute so to do, would not be warranted unless the cir- cumstances of the particular case were such that the public interests could not otherwise be ser\^ed. (18 Op. Atty. Gen., 274.) Departure from statutory form. — "The authorities show that the United States can, without the authority of any statute, make a valid contract, and that when the form of a contract is prescribed by the statute, a depar- tiu"e from its directions will not render the contract invalid. The bond is good at com- mon law." {19> Op. Atty. Gen., 458,460, quot- ing Jessup V. U. S. 106 U. S., 152; see also to same effect 26 Op. Atty. Gen., 70, 72, citing Moses V. U. S., 166 U. S., 571, and U. S. v. Dieckerhoff, 202 U. S., 302.) Nothing but very strong and express lan- guage should induce a court of justice to adopt the interpretation that a bond taken in a form not prescribed by the statute, because of mutual mistake or accident and wholly without design, should be utterly void; it would be a very mischievous interpretation of the act to suppose that it intended such consequence. (U. S. V. Bradley, 10 Pet., 343; U. S. v. Linn, 15 Pet., 290.) The case of United States v. Bradley 1 10 Pet., 343, 365), holding that bonds not taken in the prescribed form are not titterly void, "has been frequently sustained by the Supreme Court, and was ( ited as the law in the case of Jessup r. The United States (106 U. S., 151), where a number of the decisions of the Supreme Court upon this question are re\dewed. The decisions of the Supreme Court sustaining the validity of bonds executed under directory statutes, where mistakes and omissions have occurred therein, are as follows: Jessup v. United States (106 U. S , 147), United States v. Mora (97 U. S., 421), United States v. Bradley (10 Pet., 362), 483 Sec. 1383. Ft. 2. RE VISED STAT UTES. The Navy. Farrar r. The United States (5 Pet., 373)." (18 Op. Atty. Gen., 458.) where a statute expressly requires a public odirer to give l)ond for the fail hlul disbursement of public money, and in the bond given the words which relate to disbursement are omitted, and the only words inserted are "that lie shall faithfully discharge the duties of his office," held that, ''the court feel no difficulty in main- taining, that where the conditions are cumula- ti\'e, the omission of one condition can not in- validate the bond, so far as the other operates to bind the party." (Farrar v. U. S., 5 Pet., 373.) " It is a settled principle of law that where a bond contains conditions, some of which are legal and others illegal, and they are severable and separable, the latter may be disregarded and the former enforced." (U. S. v. Hodson, 10 Wall., 395, 408.) In a case where the statute specified the pre- cise form of the bond to be given by certain public officers (sec. 2619, R. S.), and certain words prescribed by the statutory form were omitted in the bond furnished, held that "the statute authorizing the execution of the bond is a directory one," and that '"the omission of the words as stated does not impair the valid- ity" of the bond, but that the bond is a valid one, "either under the statute or at common law." (18 Op. Atty. Gen., 458.) When the legal effect of an official bond is questionable, it should be rejected. (9 Op. Atty. Gen., 263.) For other cases, see below, "VII. Condition of Bond." Alteration of bond. — If any material change is made in a bond subsequent to its exe- cution, the instrument is thereby rendered void, unless it can clearly be shown that after the change the parties assented to it and still acknowledge the signing and sealing to be their act. (17 Op. Atty. Gen., 285.) "A party who claims under an instrument which appears on its face to have been altered, is bound to explain the alteration; but not so, when the alteration is averred by the opposite party, and does not appear upon the face of the instrument." (U. S. v. Linn, 1 How., 104.) An obligation to the United States, duly signed by the sureties, was presented to the proper Government official and rejected by Yam as lacking seals; it was taken away by the print ipal and returned -with proper seals. Held, That it will be presumed, in the absence of proof to the contrary, that the sureties consented to the seals being attached. (Moses v. U. S., 166 U. S., 571.) An erasure and interlineation in a bond, in- creasing the amount of the penalty, does not invalidate that instrument or impair its legal effect if in fact it was made prior to its execu- tion. (17 Op. Atty. Gen., 285.) WTiether an instrument that was produced on the trial and had no seals attached to it, had had them attached when the instrument was originally executed, many years prior thereto, has been held to be a question of fact which should be submitted to the jury. (Moses v. U. S., 166U. S., 571.) After a bond had been signed by the obligors, the omission of seals to the signers of the instru- ment was noted; thereupon one of tlie obligors took a pen and added scrolls by way of seals to each name subscribed as makers of the in- strument. Held, That "the adding of the scroll by Linn to his own name did not vitiate the instrument as to him; he had a right to add the seal, or at least he can have no right to set up his own act in tliis respect to avoid his own deed. It was therefore his deed, and the plea of non est factum as to him is false." (U. S. r. Linn, 1 IIow., 104, 107.) Where a commissary general of the Anny had omitted, through mistake, to sign his ofli- cial bond, but had deUvered it to the proper department signed only by the sureties, such bond is probably incurably defective as a statutory bond, though perhaps it may avail as a bond at common law. Advised that it be returned to be signed by the officers, and at- tested specially in the form prescribed by the Attorney General. This might have the de- sired effect. At all events, it would not im- pair the obUgation of the bond as to those who signed it at the proper time, whatever that obligation might be ; and it would be obligatory on the principal, at least from the time of its execution by him, which is all that could be effected by an original bond now executed by him. (5 Op. Atty. Gen., 718; but see above, "III. Date from Which Bond Takes Effect.") V. Sufficiency of Sureties. Certificate of snfllciency. — See above, under "IV. Form of Bond," and see below, "Renewal of bonds." Married woman as surety. — " In case a married woman be offered as surety, an addi- tional certificate shall be required to the effect that such surety holds her property in her own right, and is competent to bind herself as surety in such cases, under the laws of the State in which she resides." (Art. 1-3910, Naval In- etructions, 1913.) In determining whether or not a married woman is competent to contract as surety on a bond, it is first necessary to determine whether the contract is to be considered as a contract made in the State where she signed or in the District of Columbia, as the laws of the State and of the District of Columbia may be dif- ferent in regard to the capacity of married women to make contracts. Upon this point, held that the place of contract must be con- sidered at Washington, D. C. Although the bond was actually signed in Missouri, it was there executed imperfectly and only with the intention that it should be delivered in Wash- ington and there acquire its vaUdity. This view of contracts made elsewhere and yet in- tended to have force and effect at Washington ia maintained in the cases of Cox v. United States (6 Pet., 172) and Duncan v. The United States (7 Pet., 435). The validity of her con- tract is therefore to be decided by the law pre- vailing in the District of Columbia. (15 Op. Atty. Gen., 472, holding that, under the laws of the District of Columbia a married woman can not bind her separate property as surety on a bond. See sec. 1155, D. C. Code.) A bond would not be rendered invaUd by reason of the fact that one of the sureties was 484 The Navy. PL 2. REVISED STATUTES. Sec. 1383. the wife of the principal, even if she were not competent to contract. It would still be a sufficient contract as against the other surety or sureties who might be upon it. (15 Op. Atty. Gen., 472.) "The wife of a principal shall not be accepted as a surety." (Art. 1-3907, Naval Instructions, 1913.) For other cases, see below, "VIII. Conflict of Laws." Surety induced to execute by misrepre- sentation. — A bond perfect upon its face, apparently duly executed by all whose namea appear thereto, purporting to be signed and delivered and actually delivered without a stipulation, can not be avoided by the sureties upon the ground that they signed it on a condi- tion that it should not be delivered unless it was executed by other persons who did not exe- cute it, where it appears that the obligee had no notice of such condition and there was nothing to put him upon inquiry as to the manner of its execution, and that he had been induced upon the faith of such bond to act to his own preju- dice. (Dair v. U. S., 16 Wall., 1.) In any case, if the bond is so written that it appears that several were expected to sign it, the obligee takes it with notice that the obligors who do sign it can set up in defense the want of execution by the others, if they agreed to be- come bound only on condition that the other cosureties join in the execution. (Dair v. U. S. , 16 Wall., 1, 6; see also. Pawling v. U. S.; 4 Cranch, 219, and Duncan v. U. S., 7 Pet., 435, 448.) "A person who signs, as surety, a printed form of Government bond, already signed by another as principal, but the spaces in which for names, dates, amounts, etc., remain blank, and who then gives it to the person who has signed as principal, in order that he may fill the blanks with a sum agreed on between the two parties as the sum to be put there, and with the names of two sureties who shall each be worth another sum agreed on, and then have those two persons sign it, makes such person signing as principal his agent to fill up the blanks and prociu-e the sureties, and if such person fraudulently fill up the blanks with a larger sum than that agreed on between the two persons and have the names of worthless sureties inserted, and such sureties to sign the bond, and the bond thus filled up and signed be delivered by the principal to the Government, who accepts it in the belief that it has been properly executed, the party so wronged can not on suit on the bond again set up the private understandings which he had with the principal." (Butler i;. U. S., 21 Wall., 272; see also Veach v. Rice, 131 U. S., 293, 318.) Surety company as surety. — The Secre- tary of the Navy has power, under section 1383, Revised Statutes, to approve a pay officer's bond in which the sureties are corporations, or a corporation joined \\'ith a natural person, if he deem such sureties sufficient. (19 Op. Atty. Gen., 175; see also 19 Op. Atty. Gen., 57; 20 Op. Atty. Gen., 16.) The act of August 13, 1894 (28 Stat., 279), authorizing guaranty companies to become sure- ties on official bonds, is permissive only, and where an officer elects to furnish such suretv it is for his personal convenience and not for the pur- pose of furnishing better security to the United States. (13 Comp. Dec, 375.) The act of August 13, 1894 (28 Stat. 279), authorizing the acceptance of bonds and under- takings of surety and fidelity companies does not permit the imposition of conditions and regulations by Government officials relative to the percentage of capital stock to liability on a single official bond, or the minimum rates to be charged for such insurance, etc. (22 Op. Atty. Gen., 421.) If the laws of a State under wliich a surety company is incorporated limit the amount of liability to a certain percentage of the capital, which can be incurred on account of any one partnership or association, and if a greater amount of liability is incurred it is to be secured by a collateral agreement of indemnity, such provision is thereby made a part of its charter, and to that extent is it restricted in its dealings with the United States. (22 Op. Atty., Gen., 421.) The validity of the bond or the obligation of either of the sureties is not impaired by the fact that one of them (a surety company) has not the written authority of the Attorney General to do business as required by the act of Congress of August 13, 1894. (26 Op. Atty. Gen., 276.) Bonds of surety companies, executed in States in which they are not licensed, for principals residing in those States, or for con- tracts to be performed therein, are valid and enforceable against such companies, no matter how flagrant their violation of the law of the State may have been as regards failure to qualify to do business in the State. (28 Op. Atty. Gen., 127.) The execution of a bond by a surety com- pany at its home office, or outside of the bound- aries of the State wherein it is not licensed, for a principal residing in such State or for a con- tract to be performed there, would not be the doing of business by the surety within the State. (28 Op. Atty. Gen., 127.) The Treasury Department should not accept the bond of a sm-ety company in a State where the company is forbidden by the laws of the State to do business, notwithstanding the com- pany may have complied ^vith the provisions of section 2 of the act of August 13, 1894. (28 Op. Atty. Gen., 34.) The act of August 13, 1894, requires the ap- pointment of a process agent in the district where the principal resides, and also in the district where the contract is to be performed. (28 Op. Atty. Gen., 34.) Surety companies may, under the provisions of the act of August 13, 1894, appoint process agents in Porto Rico but not in the Philippine Islands. (27 Op. Atty. Gen., 208.) A surety company may be accepted as surety on the official bond of an officer of the Govern- ment who is to discharge his duties in the Panama Canal Zone, provided the surety com- pany has appointed process agents in the judicial district in which the principal in the bond resided at the time it was made or guar- anteed and in the judicial district in which the office is located to which it is returnable, and provided the company has also complied 485 Sec. 1383. PL 2. REVISED STATUTES. The Navy. with all other legal requirements. (27 Op. Atty. Gen., 208.) The Canal Zone is not within the contempla- tion of the act of August 13, 1894, which pro- vides tluit surety cornpanios doing business out'jide of the States or Territories under which they are incorporated shall appoint agents re- siding within the juritidiction of the court where such suretyship is to be undertaken upon whom process may be served. (27 Op. Atty. Gen., 136.) A surety company of Kansas City, Mo., ha\'ing tlie power to guarantee the fidelity of persons holding positions of public or private trust and the power to execute and guarantee bonds and undertakings injudicial proceedings, possesses appropriate corporate powers to en- title it to certificate as a sole surety under the provisions of the acts of Congress of August 13, 1894 (28 Stat., 279), and March 23, 1910 (36 Stat., 241). (28 Op. Atty. Gen., 411.) Voluntary bonds given by an employee or ofhcer of the United States to a supeiior officer, do not come within the pur\'iew of the act of August 13, 1894, which prescribes the character and qualifications of guaranty companies which may be accepted on official bonds re- quired by law. (28 Op. Atty. Gen., 28.) Renewal of bonds. — Every officer of the Supply Corps "shall give a new bond, with suffi- cient surety, every four years, or whenever required to do so by the Secretary of the Navy; and all such bonds shall be examined every two years for the purpose of ascertaining the sufficiency of the surety thereon." (Art. R-3002, Navy Regs., 1913; see sec. 1384, R. S., and act of Mar. 2, 1895, see. 5, 28 Stat., 807.) Prior to the actof March 2, 1895 (28 Stat. , 807), new or additional bonds, under certain con- tingencies, such as the death or insolvency of the surety, etc., might be and were required of public officers, and the purpose of that act was to make general what was theretofore spo- radic and subject to the discretionary power of some Government department or official. It is believed that the failure to give such renewal at any time would operate to disqualify the defaulting official from exercising the office to which he had been appointed just as the failure to give the bond required by law on the original appointment would operate. (13 Comp. Dec. 375; see below, "Failure to give new bond," under "X. Miscellaneous.") ' ' As there is no express statutory requirement that the Paymaster General of the Navy give a bond and as the public interests do not re- quire that he furnish one, it is not considered necessary to call upon the present Paymaster General to renew his last bond given as a pay director at the expiration of the four-year period, June 22, 1909. Nothing in this opinion should be considered as applying to the renewal of bonds of pay directors or pay inspectors, offi- cers of which rank while not required l^y stat- ute to furnish bond are properly required by the Department so to do, for the reason that public funds may from time to time be placed in their hands." (File 26284-94, May 8, 1909, Memo, of Solicitor, Navy Dept.) Where a bond given by an officer is objec- tionable in point of form, the direction of his official superior to execute a new one must be considered as that of the head of the depart- ment, and the bond given in compliance there- with can not be considered as ha\'ing been e.xtorted from the officer and his sureties con- trary to statute. (Soule v. U. S., 100 U. S., 8.) For other cases, see below, "IX. Liability of Sureties." Biennial examination of official bonds.— The law as it now stands provides for the bien- nial examination of the bonds of all pay officers of the Navy, without providing adequate ma- chinery for or defraying the cost of such exam- ination. Prior to the act of March 2, 1895, it was the practice of the Navy Department to require pay officers to renew their bonds at the end of each five years. By the terms of the present law it is made compulsory to renew them every four years at least, and to examine them every two years. The Secretary of the Navy requested the Attorney General's opinion upon "the question of having the necessary examination into the character and value of the property of the sureties on the official bonds approved by this Department made by the Ignited States attorneys for the respective dis- tricts in which the various bondsmen reside. The opinion of the Attorney General, rendered March 30, 1895, stated: "I am not advised of any statute which either requires or authorizes a United States attorney to make an examina- tion of the character suggested, and am of the opinion that he can not be called upon to render any such service to any officer of the Navy Department charged with the duty of approving official bonds." (21 Op. Atty. Gen., 154.) The aforesaid opinion ha\'ing rendered it impossible to refer official bonds to the Department of Justice for the certification as to the solvency of the sureties thereon, the Navy Department has been constrained to adopt the only remain- ing available method of making the required biennial examinations of bonds, i. e. , to forward to each pay officer concerned a "certificate of sufficiency of sureties" for execution, said cer- tificate containing forms for the justification of the several sureties on such officer's bond, and also a form for the certification, by a United States attorney or a judge or clerk of a United States court, to the effect that he has personally inquu-ed into the solvency of the sureties and is satisfied that they are sufficient for an amoimt double that of the bond. In case the surety is a corporation qualified to become sole surety on a bond, under the act approved August 13, 1894, the certificate differs slightly in detail from the one just described. (Ann. Rept. Judge Adv. Gen. to the Sec. of the Navy, 1895; see also 2 Comp. Dec., 444, and 3 Comp. Dec, 135, noted below, under "X. ]\[iscellaneous * * * Expense of furnishing bond.") VI. Approval op Bond. What constitutes approval. — There is no rule which can be applied to determine what constitutes the approval of official bonds. Every case must depend upon the laws direct- ing such an approval. The piupose for which such a bond is required must be looked to. The character of the office and its duties must be examined. The time within which such a bond must be given and approved, and whether it is retrospective or for the future only, must 486 The Navy. Pt.2. REVISED STATUTES. Sec. 1383. be considered before it can be determined how and when the approval must be made. (Broome V. U. S., 15 How., 143.) The statute does not require the approval to be in wi'iting. It may be so, or may be done verbally; or it may not be done in either way. Receiving the bond, and retaining it for a con- siderable time ^vithout objection, will be suffi- cient evidence of acceptance to complete the delivery, especially when the exception is taken by the party who had done all he could to complete it. Presumptive ex^idence is ad- missible to prove the approval and acceptance of a bond, such as its being in the possession of the obligee, having been retained without objection, and the obligor continuing to act under it without ha\T.ng called for a more formal acceptance. (Broome v. U. S., 15 How., 143.) The law prescribes no form of acceptance; nor does it even require that the acceptance should be evidenced by writing. The date of acceptance should be indorsed on the bond for the security of the smreties bound in the old bond; yet the parties to the new bond are bound by the acceptance in fact of their bond, and this acceptance may be shown as any other fact is required to be. (4 Op. Atty. Gen., 187.) The receipt of the instrument, its indorse- ment, its being filed among the archives of the department, or its record, and so forth, may be invoked as evidence of its acceptance by the officer authorized to require it. The more obvious and ordinary mode of evidencing this fact, it is true, is by the signature of the officer authorized to act; but it is by no means indis- Eensable. The abbreviation employed by the ead of a department is in legal contemplation his signature, if used for that purpose; and if in any case it should become material to establish it by evidence, the same testimony would avail as would suffice to verify his name written out at length. (4 Op. Atty. Gen., 187, citing U. S. r. Dandridge, 12 Wheat., 64.) "The possession of the original bond by the proper officers of the United States, was prima facie evidence that it had been delivered and accepted. " (U. S. v. Wilkinson, 12 How., 246, 253.) Power of approving officer. — The officer charged with the approval of the bond may accept the sureties or reject them. He may call at any future time for other sureties, if cir- cumstances shall occur, or information shall be received, which make it necessaiy that the United States shall have a more responsible security. Or he may call for a new bond. He may decide upon the sufficiency of the sureties before they have made themselves such, or after they have signed the bond. (Broome v. U. S., 15 How., 143,154.) Delegation by Secretary of power of approval. — " ' The duty of approval of all bonds that have heretofore been transmitted to this office for examination and recommendation only, has, by order of the Secretary, devolved upon the Solicitor * * *." (Ann. Rept. of the Solicitor to. the Sec. of the Navy, 1917, p. 8.) VII. Condition op Bond. Departure from statutory form. — See cases noted above, under "IV. Form of Bond . " Binds officer as insurer of Government funds. — ^^'hen a receiver of public money binds himself in a penal sum to perform the duties of his office without exception, he ' ' makes himself an insurer by express contract " of moneys coming into his hands . ' ' There is an established difference between a duty created merely by law, and one to which is added the obligation of an express undertaking. The law does not compel to impossibilities, but it is a settled rule that if performance of an ex- press engagement becomes impossible by rea- son of anything occurring after the contract was made, though unforeseen by the contract- ing party and not within his control, he will not be excused * * *. If, as we have seen, his liability is to lie measured by his bond, and that binds him to pay the money, then the cause which renders it impossible for him to pay is of no importance, for he has assumed the risk of it. " (Boyden v. U. S., 13 Wall., 17, 21, holding that it is no defense to an action upon the bond of a receiver of public moneys that he had been by irresistible force robbed of the moneys sued for. See also Smythe v. U. S., 188 U. S., 167.) The liability of a public officer on his bond for moneys collected for the United States and not paid over, is determined by his bond; and, if the case can be likened to that of private con- tracts at common law, it is that of a common carrier, to transmit them to the Treasury, in doing which he is not exonerated by ordinary diligence, but must answer for loss by larceny and even robbery. (U. S. v. Morgan, 11 How., 154, 158. See also Smythe v. U. S., 188 U. S., 164.) Officers of the Na\'y are liable upon their bonds for public stores committed to their charge, even though such stores are destroyed by inevitable accident. (4 Op. Atty. Gen., 355.) In an action on the bond of a paymaster in the Army for not paj-ing over or accounting for public money that came into his hands, held, no defense that, without any want of proper care and ^dgilance on the part of the pajTaaster, a certain part of the moneys had been stolen from him. (U. S. v. Dashiel, 4 Wall., 182; see also Smj^he v. U. S., 188 U. S., 165.) "By his bond he had insured the safekeeping and prompt paj-ment of the public money which came to his hands. His obligation was therefore no less stringent than that of a common carrier, and in some respects it was greater." (Be vans v. U. S., 13 Wall., 56, 60; see also Sm>i.he v. U. S., 188 U. S., 168.) Held, no defense to an action on the bond of a receiver of public moneys that the money, for the nonpajanent of which the United States sued, had been feloniously stolen, taken and carried away from his posses.sion by some unknown person or persons, without fault or negUgence on his part. (U. S. v. Prescott, 3 How., 578, 587: see also Smythe v. U. S., 188 U. S., 163.) Does not bind officer for losses due to overruling necessity or the pubhc enemy. — "No rule of public policy requires an officer to account for moneys wnic>h have been destroyed by an oA^erruling necessity or taken from him by a public enemy, without any fault or neglect on his part."- (U. S. v. 487 Sec. 1383. PL 2. REVISED STATUTES. The Navy. Thomas, 15 Wall., 337; see also Smythe v. U. S., 188 U. S., 168.) An action was brought on the bond of a sur- veyor of customs at NashA-ille, he being also a depositary of'public moneys at that fity. The special defense was that the moneys in question were seized bv the Confederate authorities, against the will and consent of the surveyor and by the exercise of force which he was unable" to resist, being a loyal citizen and en- deavoring faithfully to perform his duty. Held, That the act of a public enemy, in forcibly seizing or destro>dng property of the Govern- ment in the hands of a puldic officer, against his will, and without his fault, is a discharge of his obligation to keep such property safely, and of his official bond, given to secure the faithful performance of that duty and to have the property forthcoming when required. (U. S. V. Thomas, 15 Wall., 337; see also Smythe V. U. S., 188 U. S., 168.) "The Thomas case does not materially modify the decisions in pre^dous cases. The general rule announced in these cases * * * is that the obligations of a public officer, who received pubUc moneys under a bond con- ditioned that he would discharge his duties according to law, and safely keep such moneys as came to his hands, by virtue of his office, are not to be determined by the principles of the law of bailment, but by the special contract evidenced by his bond conditioned as above stated; consequently, it is no defense to a suit brought by the Government upon such a bond that the moneys, which were in the custody of the officer, had been destroyed by lire occurring without his fault or negligence. This rule, so far from being modified by the Thomas case, is reaffirmed by it, subject, how- ever, to the exception (which, indeed, some of the prior cases had in effect intimated), that it was a vaUd defense that the failure of the officer to account for public moneys was attribu- table to overruling necessity or to the public enemy. The case now before us [loss by fire without negligence] is not embraced by either exception. The result is that the special de- fense here made can not, in view of former adju- dications, avail the superintendent or his sure- ties." (Smythe _i;. U. S., 188 U. S., 15fi, 170.) "WTiere a receiver of public moneys has such moneys in his hands, which would rot have been in his hands at all, if he had paid them over with the promptness that the acts of Con- gress and the Treasury regulations made in pursuance of them, prescribing the duties of receivers, in this respect made it his duty to do, and which therefore — ^inasmuch as the duties of receivers mider their official bonds are defined by those acts and Treasury regulations — it was also his duty under his official bond to do — evidence that the moneys were forcibly taken from him by the agents of the so-called 'Con- federate States,' usurping the authority of the rightful government, and compelling obedience to itself exclusively throughout the State in which the receiver was, held to have been rightly refused in a suit by the Government on the official bond of such receiver, as short of meeting the necessity of the case; it haAdng been omng to the default of the receiver in not paying over promptly and at the right times, that the moneys were exposed to seizure at all by the rebel usurping government." (Bevans v. U. S., 13 Wall., 5G.) In accordance with a Confederate statute a postmaster in North Carolina paid Government moneys in his hands over to a party claiming against the United States: Held, That he was responsible on his bond for the moneys so paid. "We cannot concede that a man who, as a citizen, owes allegiance to the United States, and, as an officer of the Government holds its money or property, is at liberty to turn over the latter to an insurrectionary government wdiich only demands it by ordinances and drafts dra\^ni on the bailee, but which exercises no force or threat of personal violence to himself or property in the enforcement of its illegal orders. ' ' In tliis case it was not proved that the post- master would have suffered any inconvenience or been punished by the Confederate authori- ties if he had refused to pay the draft of the insurrectionarv post office department on him. (U. S. V. Keehler, 9 Wall., 83; see also Smvthe r. U. S., 188U. S., 165.) Officer may be relieved from liability for losses for which he is responsible under the terms of his bond. — By the Judicial Code (act Mar. 3, 1911, sees. 145, 147, 36 Stat., 1136, 1137), it is proAided that the Court of Claims shall have jurisdiction to relieve any disbursiiig officer of responsibility on ac- count of loss, by capture or otherwise 'while in the line of his duty, of Government funds, vouchers, records, or papers in his charge, where such loss occurred without fault or negligence on the part of the officer, but he has been held responsible therefor. By act of July 11, 1919 (41 Stat., 132), the accounting officers are required to relieve any disbursing officer of the Navy of responsibility for lo.ss or deficiency of Government funds, when determined by the Secretary of the Navy that the officer was not guilty of fault or negli- gence and was in the line of his duty. The same act ("41 Stat., 153) contained similar pro- visions \\ath respect to unauthorized pajinents made during the "present emergency" under military necessity or as the result of accidental circumstances for which the officer was not responsible. In cases of hardship not covered by statute relief must be sought from Congress. The court is not authorized to make other exceptions than those made by the statute. (U. S. v. Keehler, 9 Wall., 83, 89.) Condition of bond is prospective; does not cover past transactions. — The condi- tion of the bond was prospective, and fraud in respect to past transactions, not within the con- dition, could not render the instrument void prospectively. (U. S. v. Boyd, 5 How., 29.) The condition of a bond can not, by implica- tion, be held retrospective, and to cover all defaults of the officer from the date of his com- mission, merely because it recites the date from which he had been appointed. The court is precluded by the authorities from maintaining that the sureties are liable by impUcation, con- trary to the plain prospective obUgation of the bond, "that the said Boyd shall faithfully execute and discharge the duties of his office." If intended to cover past derelictions, the bond 488 The Navy, Pt.2. REVISED STATUTES. Sec. 1383. should have been made retrospective in its language. (U. S. v. Boyd, 15 Pet., 187, 208; Farrar v. U. S., 5 Pet.. 374, 389.) For other cases, see above, "III. Date from which Bond takes Effect." Binds oflScer as long as he remains in office. — "Bondsof officers of the United States, given for the faithful discharge of their duties, which are not in terms limited to a specified period expressed in dates, remain in force so long as such officers continue in office, even though another and different bond be given by way of renewal.'' (26 Op.Atty. Gen., 70.) _ "A provision in an official bond, shortening the life of the bond from the entire period dur- ing which the office is held until such time as 'a new official bond shall be accepted by the proper authority and substituted ' therefor, runs counter to the statute and would be without effect. In its other particulars, the bond would be good." (26 Op. Atty. Gen., 70. See above, "Departure from statutory form," under "IV. Form of Bond.") Although the limitation is intended "to overcome the embarrassing effect of existing law, under which renewal bonds do not operate as a discharge of the bonds theretofore given, ' ' it is nevertheless unauthorized. Heads of de- partments are given wide latitude in the con- duct of their departments by section 161, Re- vised Statutes, the only restriction contained in that section being that they shall not prescribe regulations inconsistent with law. However, such an attempt to surrender the legal rights of the Government as is contemplated by the pro- posed limitation upon the duration of official bonds is so ^dtal as to be clearly within that re- striction, and can not, therefore, be of any legal effect. (26 Op. Atty. Gen., 70.) In view of section 1385, Revised Statutes, it becomes a serious question whether or not a bond given as assistant paymaster would not be binding upon the sureties as long as the officer remained in the Pay Corps of the Navy, even after his promotion to passed assistant and to full paymaster. It is to be presumed that this condition of affairs is not desired, and it would seem necessary that some provision be made in the form of bond which would obviate the legal effect of section 1385. (10 Comp. Dec, 44; but see 26 Op. Atty. Gen., 70, noted above.) The bond of an officer of the Supply Corps in the lower grade continues binding "until his new bond in the higher grade is approved." (Art. R.-4418, Navy Regs., 1913, as amended by C. N. R. 7, Sept. 15, 1916; see sec. 1385, R. S.) For other cases, see below, "Where new bond is given," under "IX. Liability of Sureties, and "Amount of bond," under "X. Miscel- aneous." Binds officer for faithful disbursement of public moneys, whatever their amount. — "Although when the bond was executed it might not have been supposed that the officer would have such large sums to disbiuse, that fact forms no defense to an action on the bond, which was conditioned for the honest disburse- ment of the public moneys, whatever might be their amoimt." (Moses v. U. S., 166 U. S., 571, 592.) Binds officer for faithful performance of duties imposed by subsequent laws. — "The bond of a receiver of public money is given to insure the performance of all of his duties, and those duties are defined by the acts of Congress and by Treasury regulations made under the acts." (Bevans v. U. S., 13 Wall., 56, 61.) ' ' The official bond of parties covers not merely duties imposed by existing law, but duties be- longing to and naturally connected with their offices or business imposed by subsequent law, but the new duties must have some relation to or connection with such office or business, and not be disconnected from and foreign to both." (U. S. V. Singer, 15 Wall., 111.) ^^^lere the condition of the bond is that the party shall in all respects faithfully comply with all the provisions of law in relation to the duties upon which he is engaged, this signifies an intention to stipulate that the principal in the bond should comply with duties subse- quently Imposed by law. Both parties, it must be assumed, knew that Congress might, at any time, enact new provisions imposing new duties or varying those already imposed; and the defendants must have understood that it never could have been intended that a new bond should be required with every modifica- tion made in relation to the existing duties. (IT. S. t'. Powell, 14 Wall., 493.) Bonds of public officers are required to secure the faithful discharge of the duties ordinarily imposed upon the principal obligor, without reference to the time when the law was passed imposing the duties, and where the language of the bond is sufficiently comprehensive to embrace duties subsequently imposed of a char- acter corresponding with those required at the date of the bond , the construction which gives a prospective, as well as a retrospective, oper- ation to the condition of the bond may well be adopted as both reasonable and just to all con- cerned. (U. S. V. Powell, 14 Wall., 493.) The Navy Department, in requiring the prin- cipal in the bond to perform duties which would have been performed by an officer of a different character if there had been such an officer at the navy yard, did not thereby require of him the performance of duties against defaults in which his sureties had not undertaken to pro- tect the Government. (Strong v. U. S., 6 Wall., 788.) Does not cover duties imposed by sub- sequent laws, in certain cases.— Excep- tional cases may doubtless arise, as where the condition of the bond is in terms, or by a fair and reasonable construction, limited to existing duties, or where the appointment is a tempo- rary one to expire at the end of the next session of the Senate. Different rules are applied in the case of a temporary appointment, as the commission is for a different tenure, and imless there is something in the act under which the first commission issued, showing that it con- templated a permanent and continuing respon- sibility under laws subsequently passed, the rule is that the liability of sureties must be strictly confined to the duties created by the acts passed antecedent to the date of the bond. (U. S. V. Powell, 14 Wall., 493, 502.) 489 Sec. 1383. PL 2. REVISED STATUTES. The Navy. A bond given by an officer under a recess appointment of the President, and who is sub- sequently appointed by the President with the advice and consent of the Senate, is to be re- stricted to the duties and obligations created by the statutes passed antecedently to the date of the bond. (U. S. v. Kirkpatrick, 9 ^V^leat., 720.) It must be admitted that any substantial addition by law to the duties of the obligor of a bond, after the execution of the instrument, materially enlarging his liabilities, will not impose any additional responsibility upon his .sureties unless the words of the bond, by a fair and reasonable construction, bring such subse- quently imposed duties within its provisions. (U. S. V. Powell, 14 Wall., 501.) '"If, after an official bond has been signed, the nature«of the office be changed by law, the bond ceases to be obligatory. In such a case the office is no longer the same, within the meaning of the bond." (Gaussen v. U. S., 97 U.S., 584, 592; Converse?;. U. S., 21 How., 463.) "Where bonds were given by pay officers of the Army for the performance of particular duties specified therein, it is manifest that such bonds have no effect in securing the perform- ance of any other duties than those to which they expressly point; because this would be to vary the contract of the sureties without their consent. The duties contemplated in future for the paymasters, being variant Irom those to which their bonds are adapted, will be no longer secured by those bonds; and it conse- quently becomes requisite that new bonds should be given in every case in which new and different duties are to be performed. (5 Op. Atty. Gen., 733.) Public officers ought to give new bonds with sureties when required to exercise additional duties (3 Op. Atty. Gen., 575); are required to give new bonds with sureties, conditioned for the performance of the new duties required by a subsequent law, as well as those before re- quired (3 Op. Atty. Gen., 584); are not required to give bonds in a larger amount than before, unless it shall be deemed necessary by the proper officers of the department; but they are required to give new bonds with new condi- tions, embracing the new duties devolved upon them as well as those pre\'it)usly required (3 Op. Atty. Gen., 586) ; if the proper department shall deem it expedient, it may, in lieu of a new bond embracing all the duties of the officer, take a new bond in a suitable penalty embracing the new duties onlv, leavins the old one outstand- ing (3 Op. Attv. Gen., 600; see al8o3 Op. Atty. Gen., 610). The addition of duties different in their na- ture from those which belonged to the office when the official bond was given will not im- pose upim the obligor in the bond as such addi- tional responsibilities, but such an addition of now duties does not render void the bond of the officer as a security for the performance of the duties at first assumed. It will still remain a security for what it was originally given to se- cure. (Gaussen v. U. S., 97 U. S., 584, 590.) A collector of internal revtmue, directed to act as disbursing agent, must give bond as such in addition to his bond as collector; liis ac- counts in the two capacities are kept in separate books at the Treasury. (Hall v. V. S., 17 Ct. Cls. 39.) The reimbursement to the United States of moneys paid by them to their own officers or agents in pursuance of a law in existence when tiie bond was executed, is not a duty so con- nected with or naturally belonging to the busi- ness of the principal as to bo within the reasona- ble contemplation of the parties to the bond at the time of its execution. "It would be ex- tending the liabilities of obligors on such bonds beyond principle and precedent to hold them responsible for the reimbursement of moneys paid by Government to its own officers or agents, because, subsequent to their payment. Government declares that such reimbursement shall be made." (U. S. v. Singer, 15 Wall., 111.) VIII. Conflict of Laws. Local law of a particular State can not affect the contract. — An official bond, given in pursuance of a law of the United States, is not to be governed by the laws of the State in which it was signed, but must be considered as having been executed at the seat of the Gov- ernment of the United States and to be gov- erned by the principles of the common law. (Duncan y. U. S., 7 Pet., 435.) "Tliis is an official bond, and was given in pursuance of a law of the United States. By this law, the conditions of the bond were fixed, and also the manner in wliich its obligations should be enforced. It was delivered to the Treasury Department at Washington, and to the Treasury did the payma.'^ter and his sureties become bound to pay any moneys in his hands. These powers, exercised by the Federal Gov- ernment, can not be questioned. It has the power of prescribing, under its own laws, what kind of security shall be given by its agents for a faithful discharge of their public duties. And in such cases, the local law cannot affect the contract; as it is made with the Government, and in contemplation of law, at the place where its principal powers are exercised. (Duncan V. U. S., 7 Pet., 435.) Liability of parties governed by rules of common law. — The general rule of law is well settled that the law of the place where the con- tract is made, and not where the action is brought, is to govern in enforcing and expound- ing the_ contract, unless the parties have a \'iew to its being executed elsewhere, in which case it is to be governed according to the law of the place where it is to be executed. Al- though the official bond of a naval officer was signed at New Orleans, it is very clear that the obligation imposed upon the parties thereby looked for its execution to the city of Washing- ton. It is immaterial where the services of the officer were to be performed; his accounta- bility for nonperformance was to be at the seat of government; he was bound to account, and the sureties undertook that he should account, for all public moneys received by him with such officers of the Government of the United States as are duly authorized to settle and adjust his accounts. The bond was given with reference to the laws of the United States on that subject, and such accounting is required to be with the Treasury Department at the seat 490 The Navy. PL 2. REVISED STATUTES. Sec. 1383. of government; the officer is bound by the terms of the bond to pay over such sums as may be found due to the Uiuted States on such settlement, and such pajdng o^'er must be to the Treasury Department or in such manner as shall be directed by the Secretary'. The bond is therefore, in every point of view in which it can be considered, a contract to be executed at Washington; and the liability of the parties must be governed by the rules of the common law. (t"ox V. U. S., 6 Pet., 172; see also Pritchard v. Norton, 106 U. S., 124, 139.) Construction of bond governed by deci- sions of Federal courts. — "A bond given in piu-suance of a law of the United States is gov- erned, as to its construction, not by the local law of a particular State, but by the principles of law as determined by this court, and opera- tive throughout the courts of the United States." (TuUock V. Mulvane, 184 U. S., 497, 514.) Competency of married "woman as surety depends upon law prevailing in District of Columbia.^See 15 Op. Atty. Gen., 472, cited above under "V. Sufficiency of Sureties." IX. LiABrLiTY OF Sureties. In general. — "Nothing is plainer than the rule that a surety in a bond is liable to the same extent to which his principal is Liable, by force of the bond." (Gaussen v. U. S., 97 U. S., 584, 590.) All the pro\ision3 of the statutes regulating the institution of suits and the recovery by judgment of unpaid balances from delinquent officers, are as much a part of their bonds as if they were recited in them; and officers and their securities are, in contemplation of law, apprised of those provisions when their bonds are executed. (U. S. v. Hawkins, 10 Pet., 125.) "The Government is not responsible for the laches or the wrongful acts of its officers * * *. Every sui-ety upon an official bond to the Government is presumed to enter into his contract with a full knowledge of this principle of law, and to consent to be dealt with accordingly. The Government enters into no contract with them that its officers shall per- form their duties. A government may be a loser by the negUgence of its officers, but it never becomes bound to others for the conse- quences of such negUgence, unless it be by ex- press agreement to that effect." (Hart v. U. S., 95 U. S., 316.) Strictissimi juris. — "The obligation of the surety is strictissimi jiu-is, and he can not be called upon to pay more than the penalty of his bond." (Leggetti;. Humphreys, 21 How.^ 66.) It is perfectly clear as to the sureties m an official bond that a judgment cannot be ren- dered beyond the penalty, to be discharged on payment" of what is due, which of course can only be, where it is less than the penalty. (Farrar v. U. S., 5 Pet., 373.) "The liability of a surety is not to extend, by implication, beyond the terms of his contract; this undertaking is to receive a strict inter- pretation, and not to extend beyond the fair scope of its terms." (U. S. v. Bovd, 15 Pet., 187; Miller v. Stewart, 9 ^Vheat., 702.) "Nothing can be clearer, both upon principle and authority, than the doctrine that the lia- 54641°— 22 32 491 bility of a surety is not to be extended by impli- cation beyond the terms of his contract. To the extent and in the manner and under the cir- cumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract ; and if he does not assent to any variation of it, and a variation is made, it is fatal. And courts of equity, as well as of law, have been in the constant habit of scanning the contracts of siu-eties with considerable strict- ness. * * * The undertaking of the surety is to receive a strict inter])retation, and is not to be extended beyond the fair scope of its terms." (Miilert'. Stewart, 9 Wheat., 680, 702.) Money received prior to giving bond. — "It matters not at what time the moneys had been received, if, after the appointment, they were held by the officer in trust for the United States, and so continued to be held, at and after the date of the bond." (U. S. v. Boyd, 15 Pet., 187, 207.) If an officer, before the date of his official bond, receive money belonging to the United States with orders from the Comptroller to pay it into a United States depository, which he neglects to do, the sureties on his official bond, executed afterwards, are not liable therefor upon the bond, although the money remain in the officer's hands after the execution of the bond. (U. S. V. Giles, 9 Cranch, 212; see also Farrar r.U. S., 5 Pet., 373.) Money falsely claimed by principal to be in his hands. — The sureties are responsible for all the public moneys which were in the hands of their principal at the date of the bond, or that may have come into them afterwards, and not properly accounted for; but not for moneys which the officer may choose falsely to admit in his hands in his accounts with the Govern- ment. (U. S. V. Boyd, 5 How., 29, 50.) The sureties can not be concluded by a fabricated account of their principal with his creditors; they may always inquire into the reaUty and truth of the transaction existing between them. (U. S. v. Boyd, 5 How., 29.) The returns of the receiver to the Treasury Department are not conclusive evidence in an action by the Govenmient against the sureties upon the receiver's bond. If the sums of money stated in such returns were not actually in the hands of the receiver, the sureties are allowed to show how the fact was. (U. S. v. Boyd, 5 How., 29.) In United States v. Boyd (5 How., 29), the receipts which had been returped to the Treasiuy Department, upon which the in- debtedness was found, and which had been given on entries of public lands without exacting the money, in fraud of the Go\'ern- ment, were all given before the execution of the official bond, upon which the suit was brought. The svueties were not, therefore, responsible for the fraud; and it was these transactions on the part of the receiver, which had transpired anterior to the time when the sureties became answerable for the faithful execution of his duties, in respect to which it was held that they could not be estopped by his returns to the Government. No part of Sec. 1383. PL 2. REVISED STATUTES. The Navy. them fell ^\•itllin the time covered by the official bond. (U. S. V. Girault, 11 How., 22.) In this case the defense is attempted that the receiver never had received money which he admitted receiving in his returns to the Treasury Department. This is not a good defense, because the sureties in the bond were bound to protect the United States from the commission of the very fraud which they at- tempt to set up as a defense. (U. S. v. Girault, 11 How., 22, distinguishing U. S. v. Boyd, 5 How., 29, noted above.) Money received after termination, of oflice. — "The sureties are not res|>oiiHiblo for moneys placed by the Govemmcnt in the hands of the principal after the legal termina- tion of his onice; but they are responsible for moneys which came into his hands, while in office, and which he subsequently failed to account for and pav over." (U. S. v. Nicholl, 12\Mieat., 505; Bryan ;;. U. S., 1 Black, 140, 149.) The liability of sureties upon the official bond of an officer is limited to acts done by him during his term of office. They are not re- sponsible for defaults committed in relation to public moneys received by him after the term for which he was appointed. (15 Op. Atty. Gen. ,214.) A surety in the bond of a public officer is en- titled to credit for all payments made by his principal during the time he remained in office, and is chargeable only with the moneys received by him during the same time and which he subsequently fails to account for and pay over. (Bryan v. U. S., 1 Black. 140.) Failure of principal to account after removal from office. — There may have been no breach of the bond at the time of his re- moval from office, but the liability of the re- ceiver to account remained, and the bond con- tinued in force until he had fully accounted and thus had fulfilled all the conditions of his bond. (Smith v. U. S., 170 U. S., 372, 380.) Money received in a different capacity. — The sureties of a bond of a quartermaster of the Army are not liable for his default in safely keeping and disbursing money advanced to him as acting chief commissary. (8 Gomp. Dec, 269.) Money disbursed as accommodation to another officer. — If B, without a receipt from A, upon a requisition for money, volun- teers to pay demands which it is A's duty to pay, or pay the orders of A and permit the receipts for the sums paid by him to get into A's possession, by whom they are exhibited at the Treasury and allowed in the final settle- ment of his account, without A's having given credit to_ B, or to the Government, for the amount,_ it assumes the character of a private transaction between A and B, or becomes a debt due from A, as an individual, to B, as a private person; and the latter can not claim the amount at the Treasury, as an allowance in the settlement of his account, nor as a legal and equitable credit in a suit against him by the United States. (U. S. v. Hawkins. 10 Pet., 124.) Principal under suspension. — ^The sus- pension of an officer involves the suspension of his bond; the bond required of the person designated to take the place of the former being substituted therefor while the person so designated is performing the duties of the office. (18 Op. Atty. Gen., 318.) One bonded officer acting as assistant to another. — "The bond of an officer of the Pay C()r])s acting as an assistant to anotlier ]my officer covers the public property actually in his custody, and for which he has receipted, but does not release the senior from a proper su])ervision over the acts of his subordinate." (Art. R-3002 (5) Navy Regs., 1913.) Acts done colore officii. — The sureties on the official bond of a public officer are liable for acts done by the officer colore officii, al- though he acts without sufficient warrant. (Lamar v. McCulloch, 115 U. S., 163, 187, citing Lammon I'. Fensier, 111 U. S., 17.) Money transferred by Government to officer's agent. — A transfer of moneys by the Government to an agent of the officer does not affect the liability of the surety as a transfer to the officer himself. The fidelity or responsi- bility of the agent through whom the Govern- ment sees fit to transfer public money is not within the obligation assumed by the surety. (Bryan v. U. S., 1 Black, 140.) Public moneys. — Where an officer receives moneys as public moneys, and charges himself with them in his accounts with the Govern- ment, his sureties are estopped to raise an objec- tion to the payment of the moneys to the officer, which he could not raise and which is not raised by the parties paying or the United States. Their responsibility for the moneys so received is therefore clear. (Potter v. U. S., 107 U. S., 126, 130; King v. U. S., 99 U. S., 229.) "Pu])lic money in the sense of the law, and as used in this ])ond, is money which legally comes to the receiver by virtue of his office, and as a public officer, and wliile carrying out the duties of his office, and he cannot be permitted to say that it was not public money when so re- ceived. Being public money, he is bound to account." (Smith v. U. S., 170 U. S., 372, 381; 12 Comp. Dec, 678, 688.) A sum of money deposited with a pay officer of the Navy by a civil officer as security for the return of an enUsted man of the Navy delivered to the State authorities for trial is not public money. (17Comp. Dec, 635; seealso 16 Comp. Dec, 219, citing Branch v. U. S., 100 U. S., 673, 674, and Courdert v. U. S., 175 U. S., 178, 183.) "It may be assumed, as a general doctrine of administrative law, that public officers, whether of deposit or disbursement, can make the Government and their sureties responsible only for official acts. As a plain corollary from this doctrine, it may in like manner be as- sumed that, if any citizen of the United States deposit his own private money for safe-keeping, or for transmission and remittance, in the hands of a public officer, such as a collector of customs, assistant treasurer of the United States, a pay- master in the Army, or a purser in the Navy, no liability in the premises can be thereby cast on the Government. It is quite immaterial in such a case what writings may have passed be- tween the depositor and the bailee, what en- gagements the latter may have entered into with the former." Accordingly, held, that the official bond of an officer of the Navy is not liable for private funds paid him by his prede- cessor. (6 Op. Atty. Gen., 357, 366.) 492 The Navy. PL 2. REVISED STATUTES. Sec. 1383. For other decisions as to what constitutes public money, see note to section 236, Revised Statutes, under "II. Jurisdiction of Account- ing Officers." Where new bond is given. — T^Tiere, under the act of March 2, 1895 (28 Stat., 807), which proxides that ''every officer whose duty it is to take and approve official bonds shall cause all such bonds to be renewed every four years after their dates," an officer renews his bond by gi\ing a bond during the same term of office, the new bond does not operate to release the sureties on the first bond from Liability for future transactions, but the sureties on the old and new bonds are jointly and severally liable therefor. (5 Oomp. Dec, 918.) WTiere the law relating to the bonds of per- sons in the Navy reqiiired that every person then in service, etc., shall, instead of the bond required by a former act, enter into a new bond with sureties conditioned for the faithful performance of his duties, etc., the sureties on the old bond are discharged from all respon- sibility for moneys received by any person after he has given the new bond, the latter being, by the act, a substitute for the former. (U. S. V. Wardwell, 28 Fed. Cas. No. 16640, per Storj', circuit justice.) An act of Congress which requires new sure- ties to be given by certain public officers on or before a specified date does not expressly or bv implication discharge the former sureties from their liability. (U. S. v. Nicholl, 12 ■Wheat., 505; see below, " Failure to give new bond," under "X. Miscellaneous.") ■Whether the new bond is retroactive or not, a full account of the money on hand should be made in order to avoid any dispute between the sureties as to which bond is Hable in the event of default. Furthermore, the new bond is merely cumulative, the former bond remaining in force throughout the term of his office. This being so, it would seem adAisable to adhere to the present practice of requiring such account. (29 Op. Atty. Gen., 28.) The rules as to the settlement of their accounts by disbursing officers on rebonding should be adhered to, when possible, and only departed from when it is shown that great hardship would result from a strict compli- ance with them; in other words, in cases where the law could excuse a noncompliance. (Comp. Dec, Apr. 21,1903. 23 S. and A. Memo., 183.) The regulation reqiuring that when a new bond is given the officer should close his accounts under the former bond and deposit any unexpended balance before an advance is made under the new bond, in order that the lia])ility of the sureties on the respective bonds may be definitely fixed, contains requirements demanded by proper care for the interests of the Government. It is not doubted that the regulation may be waived, even retroactively, but the effect of waiver and the de])arture from the usual practice upon the liability of the sureties is a more difficult question. Of course the sxu*ety is bound by the terms of his contract , but it is a maxim of law that the liability of sureties is strictissimi juris, and that lial)ility sometimes depends upon fine distinctions made by the courts and upon questions which in the abstract seem without significance, but when apphed in certain cases turn out to be matters of great importance. It therefore seems best in all cases in dealing with official bonds to follow closelj^ the beaten tracks, and strictly to adhere to the law and regulations made in pursuance thereto. (Comp. Dec, Apr. 21, 1903, 23 S. and A. Memo., 183.) "Where an action was brought by the United States upon the official bond of a receiver of public money, a plea that the United States had accepted another bond from the receiver wasbad. The new bond could be no satis- faction for the damages that had accrued for the breach of the condition of the old one." (U. S. V. Girault, H How._, 22.) When an officer is continued in office for more than one term, but gives different sure- ties the liabihty of the sureties is to be esti- mated just as if a new person had been ap- pointed to fill the second term. (U. S. v. Eckford, 1 How., 250; but see sec. 1385, R. S.) "The retrospective obligation of the bond is as much limited by the term of the new appointment as the prospective. And in this view it would be as logical and just to hold that the sureties are liable for defalcations after the expiration of the term as for those which occurred before its commencement. There is no such condition in the instrument. It recites the new appointment and by conse- quence limits the obligation to the term of office fixed bylaw." (U.S.i). Eckford, IHow., 250, 260.) "Where there were two consecutive com- mis.sions and two sets of sureties, the latter set were responsible for all money which remained in the hands of the principal at the expira- tion of the first commission. If it was misap- plied during the first term of office, it was in- cumbent upon the second set of sureties to showthatit was so." (Bruce v. U. S., 17 How., 437.) The second commission, issued imder the appointment with the advice and consent of the Senate, operates as a revocation of the first commission issued under the appointment by the President, which was to continue until the end of the next session of the Senate and no longer; and the liability of the sureties in the bond did not extend beyond the diiration of the first commission. (U. S. v. Kirk- patrick, 9 Wheat., 720.) The bond given by a na-v-al officer under his first commission, wliich was issued upon a temporary appointment made during a recess of the Senate, ceased to have effect after the acceptance of a new commis.sion imder an appointment made vdth. the consent of the Senate. (2 Op. Atty. Gen., 333.) A former disbursing officer in the Navy reappointed to that office should give a new bond; but not definitely decided that the original sureties of the officer are wholly dis- charged of responsibility after the reappoint- ment: "This point should be saved on behalf of the United States." (1 Op_. Atty. Gen., 175.) The issuing of a new appointment and com- mission to any officer of the Supply Corps of the Navy shall not affect or annul any existing bond, but the same shall remain in force and apply to such new appointment and commis- 493 Sec. 1383. Pt. 2. REVISED STATUTES. The Navy. sion. (See sec. 1385, R. S.; and see above, "]3inds oflicer as \on^ as he remains in office," under "VII. Condition of Bond.") Where disbursing oflicer is allowed to remain in ofllce after defalcation. — On a suit by the Government against the sureties of a public officer on his official bond, it ia no defense that the Government, through the ac- counting officers of the Treasury, had full notice of the defalcation and embezzlement of funds of the United States, and yet neglectfully per- mitted the said officer to remain in office. (Jones r. U. S., 18 Wall., 6C2. In this case it was contended that the knowledge of the Gov- ernment that the officer had embezzled its funds should have caused his immediate dis- missal; thus terminating the liability of his sureties and limiting it to the amount then due, and that, when the Government chooses to con- tinue in office an officer known to have com- mitted such an act, it takes upon itself the trust of his future honesty.) "\Miere a statute expressly directs a defaulting officer to be recalled at the expiration of six months from the time of his fault, his sureties are not discharged but remain liable for his defaults thereafter until he is actually recalled. (U. S. V. Nicholl, 12 Wheat., 505, 509, citing U. S. V. Vanzandt, 11 Wheat., 184.) An omission of the proper officer to recall a delinquent paymaster under the injunction of a statute requiring such recall does not dis- charge his surety. The provisions of the stat- ute are merely directory and intended for the security of the Government but form no part of the contract with the surety. The statute does not ipso facto remove the delinquent pay- master from office but only make it the duty of the proper officer to remove him. The officer whose duty it may be to recall him acts upon his own responsibility to the Government by declining to do so; but until he acts otherwise the paymaster is authorized, notwithstanding his delinquency, to receive and to disbm-se the funds which may be placed in his hands. The circumstance of new funds being placed in his hands after his delinquency does not discharge the surety. (U. S. v. Vanzandt, llWheat., 184.) An officer of the Supply Corps of the Navy, under arrest awaiting action upon charges of embezzlement, may be released temporarily and put on duty by the commanding officer of a ship, or other competent authority, should an emergency of the service or other sufficient cause make such measure necessary. (See art. R-1410, Na\-y Regs., 1913; file 26251-8072:4, Oct. 17, 1913; see also file 20251-8072:6, Oct. 28, 1913; 26251-8344, Dec. 24, 1913.) Certificate given in ignorance of fraud does not discliarge sureties. — A certificate given to a disbursing ofiicer, before the discov- ery of his fraud, that his accounts had been ex- amined, found correct, and were closed, did not operate to release him or his sureties from habiUty on the bond. (Moses v. U. S., 166 U. S., 571.) _ Such certificates were undoubtedly piima facie evidence of the facts they certified to, and in the absence of any evidence of mistake or fraud attacking the integrity of the items, or any of them appearing on the books and upon which the certificates were based, they would be conclusive in favor of the officer in any ac- tion against him. * * * They would not, however, be conclusive as against evidence of forgery of any vouchers upon which the accounts had been founded and the settlement arrived at; this is too plain for argument. (Moses v. U. S., IGO U. S., 571, 594.) Laches of Govemment ofllcers not a discharge. — The failure of the receiver to account and pay quarterly, as prescribed by the rules of the Treasury Department, was no legal defalcation of which the securities can avail themselves. Laches are not imputable to the Government. The regulations requiring settlements to be made by its officers at short periods are designed for the protection of the Government, and merely directory to the officers and form no part of the contract. (U. S. V. Boyd, 15 Pet., 187, 208.) Where the act of Congress does not in terma discharge the obligors from the direct claim of the United States on them, on the failure of the proper officer to commence a suit against the defaulter within the time it prescribes, their Uability continues; they remain debtors of the United States; the responsibiUty of the proper officer under the statute is superadded to, not substituted for, that of the obligors. The claim of the United States upon an official bond, and upon all parties thereto, is not re- leased by the laches of the officer to whom the assertion of the claim is entrusted by law; such laches have no effect whatsoever on the right of the United States, as well against the sureties as the principal in the bond. (Dox V. Postmaster General, 1 Pet., 318; see also Postmaster General v. Early, 12 WTieat., 136.) " Sound policy requires, that the accounts of disbiu"sing officers should be adjusted at the proper department, with as much dispatch as is practicable; this is aUke due to the public and to the persons who are held responsible as sureties; to the individual who has received advances of money, no lapse of time nor change of circumstances can weaken the claim of Gov- ernment for reimbursement; but there may be some cases of hardship where, after a great lapse of time, and the insolvency of the prin- cipal, the amount of the defalcation is sought to be recovered from the sureties. The law on this subject is founded upon consideration of public poUcy; while various acts of hmitation apply to the concerns of individuals, none of them operate against the Government; on this point, there is no difference of opinion among the Federal or State coiu-ts." (Smith v. U. S. 5 Pet., 292.) "The fiscal operations of the Government are extensive and often compUcated; it is ex- tremely difficult, at all times, and sometimes, impracticable, to settle the accounts of pubhc oflicers with as little delay as attends the pri- vate accounts of a mercantile establishment; but it is always in the power of an individual who may be held responsible for the faithful conduct of a pubhc agent, to see that his ac- coimts are settled, and the payment of any bal- ance enforced. A notice to the Govemment, by the surety, that he is unwiUing to continue his responsibility, would induce it, in most in- stances, to take the necessary steps for his release." (Smith v. U. S., 5 Pet. 292.) 494 The Navy. Pt. 2. REVISED STATUTES. Sec. 1383. In general, laches is not imputable to the Government; and where the laws require quar- terly or other periodical accounts and settle- ments, a mere omission to bring a suit, upon the neglect of the officer or agent to account, will not discharge his sureties. (U. S. v. Kixk- patrick, 9 Wheat., 720.) Failure to institute suit operates as discharge. — Section 2 of the act of August 8, 1888 (25 Stat., 387), is absolute as regards the dis- charge of sureties if suit on the bond be not instituted "within five years after such state- ment of said account" by the accounting officer of the Treasury. It makes no exception in case the accounting officer does not make such statement as early as he should, or when a de- ficiency is discovered by him. (22 Op. Atty. Gen., 612.) It was not intended by the act of August 8, 1888, section 1 (25 Stat., 387), thatthe accounting officer should delay notice until it has become certain that there is a deficiency; nor, on the other hand, should he always report a deficiency whenever, from the account of a disbmsing ofiicer, it may appear prima facie that there is one. This may be from insufficient vouchers or evidence, or from clerical error or omission, or in one or more of various ways not inconsistent with a proper disbursement of the moneys in his hands. Whenever, in the exercise of a sound judgment and after a reasonable time al- lowed for explanation and correction, it ap- pears to the accounting officer that there is a probable deficiency, he should notify the head of the department as provided in section 1 of the act. (22 Op. Atty. Gen., 613.) The five-year limitation fixed by section 2 of the act of August 8, 1888 (25 Stat., 387), within which suits may be brought upon the official bonds of disbursing officers, begins to run from the time the accounting officers of the Treasmy make the statement of the account showing an indebtedness to the United States. (22 Op. Atty. Gen., 611.) Giving time to principal might discharge sureties. — In general, laches is not imput- able to the Government, but quaere, WTiether in case there is an express agreement between the Government and the principal, giving time to the latter and suspending the right of the former to sue, the sureties are not discharged, as in a similar case between private individ- uals? (U. S. V. Nicholl, 12 Wheat., 505.) "A mere proposition to give time, and sus- pend the right to sue, upon certain conditions and contingencies, which are not proved to have been complied with, or to have happened, will not discharge the sureties." (U. S. v. Nicholl, 12 Wheat., 505.) The President has no authority to re- lease the sureties on a bond given to the United States by a public officer for the faith- ful discharge of the duties of his office. (7 Op. Atty. Gen., 02.) X. Miscellaneous. Bond should not be surrendered to officer. — It is a sound regulation, conformable to law, for the head of a department not to give up to officers their original bonds on the execu- tion of new ones. (4 Op. Atty. Gen., 312.) There is no act authorizing a withdrawal of oflBcial bonds, except for the purposes of suit. (4 Op. Atty. Gen., 312.) Accounts in the Treasury are never closed. In neither the legal nor mercantile sense of the term is an accoimt between the Government and one of its officers ever "finally adjusted," nor is his official bond ever canceled or surren- dered. (Smith V. U. S., 14 Ct. Cls., 114, 118; see U. S. V. Smith, 105 U. S., 620.) Amount of bond. — A paymaster of the Navy who, on promotion from passed assistant paymaster, filed an additional bond with the same sureties in a penal sum equal to the differ- ence between the amount of his bond as passed assistant paymaster and that required of him as paymaster, sufficiently complied with the provisions of the statutes fixing the amount of bond which shall be required of a paymaster. (10 Comp. Dec., 44. See sec. 1385, R. S., and see above, "Binds officer as long as he remains in office," under "VII. Condition of Bond.") Expense of furnishing bond. — If the bond given by an officer is required by law, the expense is not chargeable to the United States, since it is the duty of persons receiving appoint- ments from the Government to prepare and tender to the proper officer the oaths and bonds required by law; in other words, to qualify themselves for the office. (U. S. v. Van Duzee, 140 U. S., 171; see also 13 Comp. Dec, 386, and 2 Comp. Dec, 262.) If the bond is not required by law, but is a voluntary bond, there is no authority for charg- ing the expense of furnishing it to the United States, in the absence of an appropriation for such expenses. (12 Comp. Dec, 678. ) The expense incurred by an officer in furnish- ing the bond required by law of all disbursing officers of the Government is not a proper charge against the Government, even though the officer serves without compensation. (2 Comp. Dec, 262.) _ Anofficer is not entitled to reimbursement for premium paid by him to a guaranty company as surety on his original and renewal bonds. (13 Comp. Dec, 375, affirming 12 Comp. Dec, 678.) The incidental expenses incurred by a special examiner of the Pension Office in investigating the sufficiency of the sureties on a pension agent'sbond, by direction of the Interior Depart- ment, are a proper charge against the appropria- tion for investigation of pension cases. (2 Comp. Dec, 444; but see act Aug. 5, 1909, 36 Stat., 125; and see above, "Certificate of suffi- ciency," under "IV. Form of Bond.") When the Secretary of the Navy, in order to ascertain the sufficiency of the sm'eties on the bond of a pay officer, as is required of him by section 5 of the act of March 2, 1895 (28 Stat., 807), orders certain evidence to be procured by the officer himself, the latter is entitled to be reimbursed for the expenses inciuTed in execut- ing the order. (3 Comp. Dec, 135; but see act Aug. 5, 1909, 36 Stat., 125.) Rate of premium. — The provision of the act of August 5, 1909 (36 Stat., 125), regulating the charge which may be made by surety or bonding companies for becoming surety on the official bonds of officers or employees of the United States, contemplates that the charge shall not be more than 35 per cent above the 495 Sec. 1386. Pt. 2. REVISED STATUTES. The Navy. rate paid during 1908 on any bond belonging to the same general class, proAided that charge did not constitute an isolated instance of an unusual or extortionate premium. (27 Op. Atty. Gen., 597.) In determining what the charge was during 1908 for other bonds of like character, depart- ments may exclude any premium which was 60 high as to be outside the range of the usual or customary charge, and include any charge even though it be the highest paid, if it be not so high as to fall \vithin the inhibition above stated. (27 Op. Atty. Gen., 597.) The rate of premium paid by the incumbent of any particular office during 1908 on an offi- cial bond may be used as the base for computing the rate which shall be paid upon the bond of the incumbent of the same office under the act of August 5, 1909, provided such rate did not constitute an isolated instance of an unusual or extortionate premium. (28 Op. Atty. Gen. , 28. ) The act of August 5, 1909, applies to bonds running to the United States, and which are accepted in each case by the properly desig- nated officer of the United States; but does not apply to bonds voluntarily given by an em- ployee or officer of the United States to a su- perior officer. (28 Op. Atty. Gen., 28.) Failure to give new bond. — ^\^lere a stat- ute was enacted increasing the amount of bond required of disbursing officers in the Navy, and providing that from and after a specified date no person shall act in the capacity of such disbursing officer who shall not enter into such bond as required, disbursing officers who have neglected to give bond on or before the speci- fied date "are out of office by the neglect," and can no longer, "without a new appointment" act in the character of such officers. (5 Op. Atty. Gen., 706; see also U. S. v. Zantzinger, 28 Fed. Cas. No. 16785; 13 Comp. Dec, 375.) Sec. 1384. [Supply Corps ; new bonds required.] Officers of the Pay Corps shall give new bonds with sufficient sureties, whenever required to do so by the Secretary of the Navy.— (26 Aug., 1842, c. 206, s. 4, v. 5, p. 535.) Amendment to this section was made by act of July 11, 1919 (41 Stat., 147), which changed the designation of the Pay Corps to "Supply Corps." See note to section 1383, Revised Statutes, under "V. Sufficiency of Sureties," "IX. Liability of Sureties," and "X. Aliscella- neous; " see also act of March 2, 1895, sec- tion 5 (28 Stat., 807). Sec. 1386, [Supply Corps; bonds not affected by new commissions.] The issuing of a new appointment and commission to any officer of the Pay Corps shall not affect or annul any existing bond, but the same shall remain in force, and apply to such new appointment and commission. — (3 IVIar., 1871, c. 117, s. 6,.v. 16, p. 536.) Amendment to this section was made bv act of July 11, 1919 (41 Stat., 147), which changed the designation of the Pay Corps to "Supply Corps." See note to section 1383, Revised Statutes, under "VII. Condition of Bond — binds officer as long as he remains in office;" and "IX. Liability of Sureties — ^where new bond is given.'' See also 10 Oomp. Dec, 44, noted under section 1383, Re\Tsed Stat- utes, "X. Miscellaneous." Sec. 1386. [Supply Corps ; when clerks allowed officers. Repealed.] This section provided as follows: "Sec. 1386. Paymasters of the fleet, paymas- ters on vessels having complements of more than one hundred and seventy-five persons, on sup- ply-steamers, store-veasels, and recei\ing-ships, pay masters at stations and at theNaval Academy, and paymasters detailed at stations as inspectors of provisions and clothing, shall each be allowed a clerk."— (14 July, 1862, c. 164, s. 3, v. 12, p. 565; 26 May, 1864, c. 96, v. 13, p. 92.) It -was repealed by act of March 3, 1915 (38 Stat., 942, 943), which made provision for the appointment of acting pay clerks, pay clerks, and chief pay clerks to the total number of one for each 250 enlisted men allowed by law in the Na^^, and provided that said clerks "shall be assigned to duty with pay officers under such rules as the Secretarj- of the NaA'y may pre- scribe." For number of enlisted rnen allowed by law, see note to section 1417, Revised Stat- utes. See also act of May 22, 1917 (40 Stat., 84), as amended by act of July 1, 1918 (40 Stat., 715), providing for temporary appointment of addi- tional officers for service during the existing war. It had previously been amended by clauses in the annual naval appropriation act, under the heading, "Pay of the Navy," increas- ing the number of positions for which such clerks were allowed, the latest amendment hav- ing been contained in the act of August 22, 1912 (37 Stat., 328), which made appropriation for "clerks to paymasters at yards and stations, general storekeepers ashore and afloat, and re- ceiving ships and other vessels; two clerks to general inspectors of the Pay Corps; one clerk to pay officer in charge of deserters' rolls; not exceeding ten clerks to accounting officers at yards and stations. ' ' Pay, allowances, and retirement. — By actof Mayl3, 1908(35Stat., 128), it was provided that "all paymasters' clerks shall, while on duty, receive the same pay and allowances as warrant officers of Uke length of service in the Na-vy;" this provision was superseded by the following 496 The Navy. Pt. 2. REVISED STATUTES. Sec. 1389. clause in the act of June 24, 1910 (36 Stat., 606): "All paymasters' clerks shall, while holding appointment in accordance with law, receive the same pay and allowances and have the same rights of retirement as warrant officers of like length of service in the Navy. ' ' The latter pro\ision was, in turn, superseded by the act of March 3, 1915, above cited, which p^o^'ided that "pay clerks and acting pay clerks shall have the same pay, allowances, and other bene- fits as are now or may hereafter be allowed other warrant officers and acting warrant officers, re- spectively;" and that "all pay clerks shall, after six years' serv'ice as such, be commissioned chief pay clerks and shall on promotion have the rank, pay, and allowances of chief boat- swain." The status of clerks to officers of the Pay Corps prior to the act of March 3, 1915, above cited, was the subject of numerous de- cisions. They were held not officers of the Navy in the case of United States v. Mouat (124 U. S., 303); were held to be officers in a qualified sense in the case of United States v. Hendee (124 U. S., 309); and were held to be officers in the constitutional as well as the popular sense, by the Attorney General, in view of certain changes which had been made in the Navy Regulations (27 Op. Atty. Gen., 157); but a contrary opinion was expressed by the Court of Claims in the case of Ashton v. United States (51 Ct. Cls., 65), which modified a previous decision by that court in the case of Katzer v. United States (49 Ct. Cls., 294). They were at all times held amenable to trial by court-martial as oflicers of the Navy (see Ex parte Reed, 100 U. S. 13; Johnson v. Sayre, 158 U. S.,109; U. S. V. Bogart, 24 Fed. Cas. No. 14616; In re Reed, 20 Fed. Cas. No. 11636; In re Bogart, 3 Fed. Cas. No. 1596; but see. Ex parte Van Vranken, 47 Fed. Rep., 888, reversed 163 U. S., 694). Their status as officers of the United States is now definitely established by the act of March 3, 1915, above cited, which vests the appoint- ment of acting pay clerks in the Secretary of the Navy, the appointment of pay clerks in the President, the same as other warrant officers, and the appointment of chief pay clerks in the President, by and with the advice and consent of the Senate, the same as other commissioned officers of the Navy. (See note to Constitution, Art. II, sec. 2, clause 2, as to who are officers of the United States.) Sec. 1387. [Supply Corps ; when clerks not allowed officers. Repealed.] This section provided as follows: " Sec. 1387. No paymaster shall be allowed a clerk in a vessel having the complement of one hundred and seventy- five persons or less, except- ing in supply-steamers and store-vessels." — (26 May, 1864, c. 96, v. 13, p. 92.) It was repealed by act of March 3, 1915 (38 Stat., 942, 943). See note to section 1386, Revised Stat- utes. Sec. 1388. [Supply Corps ; clerks to passed assistant and assistant paymasters. Repealed.] This section provided as follows: "Sec. 1388. Passed assistant paymasters and assistant paymasters attached to vessels of war shall be allowed clerks, if clerks would be allowed by law to paymasters so attached." — (3 Mar. 1863, c. 118, s. 5, v. 12, p. 818.) It was repealed by act of March 3, 1915 (38 Stat., 942, 943). See note to section 1386, Revised Stat- utes. Sec. 1389. [Supply Corps; loans to officers prohibited.] It shall not be lawful for any paymaster, passed assistant paymaster, or assistant paymaster, to advance or loan, under any pretense whatever, to any officer in the naval service, any sum of money, public or private, or any credit, or any article or commodity whatever. — (26 Aug., 1842, c. 206, s. 6, v. 5, p. 536. 22 June, 1860, c. 181, s. 3, V. 12, p. 83.) Secretary of the Navy in advance of travel, and may be paid for prior to actual per- formance of the travel involved. (Act Apr. 27, 1904, sec. 1, 33 Stat., 403.) No money shall be paid to any person as com- pensation who is in arrears to the United States. (Sec. 1766, R. S. See note to sec. 236, R. S., under "VI. Set-off." The words, "paymaster, passed as- sistant paymaster, or assistant pay- master," as used in the above section, have been construed to include "any officer of the Supplv Corps." (See Art. 1745, Na\y Regs., 1920.)" Advances of pay to naval officers in certain cases are authorized by sections 1563 and 3648, Revi.sed Statutes, as modified by act of March 4, 1917 (39 Stat., 1181), and are prohibited in other cases by the latter section. Loans of public money or unauthorized with- drawals thereof by any disbursing officer are punishable as embezzlement by sec- tion 87 of the Criminal Code, act of March 4, 1909_ (35 Stat., 1105). See section 1624, Revised Statutes, article 14. Mileage books and transportation tickets may be furnished officers and others by the 497 Sec. 1390. Pt. 2. REVISED STATUTES. The Navy. An order of the commanding officer, ])ursuant. to section 285, Revised Statutes, does not authorize an advance of public money by an officer of the Supply Corps to the command- ing officer or to any other person by his order. (Art. 1749 (2), Navy Regs., 1920.) Sec. 1390. [Engineer Corps ; organization of . Superseded.] Tills section provided as follows: "Sec. 1390. The active list of the Engineer Cor])s of the Navy shall consist of seventy chief engineers, wno shall be divided into three grades, by relative rank, as pro\dded in Chapter Four of this Title; "Ten chief engineers; "Fifteen chief engineers; and "Forty-five chief engineers, who shall have the relative rank of lieutenant commander or lieutenant. ' ' And each and all of the above-named officers of the Engineer Corps shall have the pay of chief engineers of the Navy, as now provided. "One hundred first assistant engineers, who shall have the relative rank of lieutenant or master; and "One hundred second assistant engineers, who shall have the relative rank of master or ensign; and the said assistant engineers shall ha^■e the pay of first and second assistant engi- neers of the Navy respectively, as now pro- wled."— (3 Mar., 1871, c. 117, s. 7, v. 16, p. 536; 24 Feb., 1874, c. 35, v. 18, p. 17.) It was amended by act of February 24, 1874, section 1 (18 Stat., 17), which changed the title of first assistant engineer to passed assistant engineer, and changed the title of second assist- ant engineer to assistant engineer. It was superseded by act of August 5, 1882, section 1 (22 Stat., 286), which provided that the active list of the Engineer Corps should thereafter consist of 10 chief engineers with the relative rank of captain, 15 chief engineers with the relative rank of commander, 45 chief engi- neers with the relative rank of lieutenant com- mander or lieutenant, 60 passed assistant engi- neers, and 40 assistant engineers with the rela- tive rank for each as pre\dously fixed by law. By the same act it was provided that when vacancies occurred in any of the grades of the Engineer Corps, "no promotion shall be made to fill the same until the number in said grade shall be reduced below the number which is fixed by the provisions of this act for such grade." Further changes were made by act of March 3, 1883 (22 Stat., 472), which provided that thereafter "only one-half of the vacancies in the various grades in the Staff Corps of the Navy shall be filled by promotion until such grades shall be reduced to the numbers fixed for the several grades of the Staff Corps of the Navy" by act of August 5, 1882, above noted; by act of March 2, 1889 (25 Stat., 878), which authorized the appointment of five assistant engineers from among former graduates of the Naval Academy, and "enlarged " the Engineer Corps for the purpose of such additional ap- pointments; and by act of December 16, 1892 (27 Stat., 405), which provided that the reduc- tion in the numbers of the Engineer Corps pro- vided for in act of August 5, 1882, "shall be con- sidered as having ceased on the thirtieth day of June, eighteen hundred and ninety -one." The Engineer Corps was abolished by the Navy personnel act of March 3, 1899 (30 Stat., 1004), section 1 of which act provided "that the officers constituting the Engineer Corps of the Navy be, and are hereby, trans- ferred to the line of the NaA^y, and shall be commissioned accordingly." As the officers who constituted the Engineer Corps were transferred to the line of the Na^^, it follows that the corps was abolished. But it will be observed that, while such officers were transferred to the hne, the duties of engineers are not abolished. There will continue to be engineers and chief engineers, though under another name. (Denig v. U. S., 37 Ct. Cls., 383, 392. See also note to sec. 1393, R. S.) The appointment and assignment of line officers for engineering duty only are authorized by acts of February 16, 1914, sec- tion 21 (38 Stat., 283), and August 29, 1916 (39 Stat., 580). The detail of an officer from the Engi- neer Corps as professor in any established scientific school or college was authorized to be made by the President upon appUcation of such school or college, for the purpose of promoting a knowledge of steam engineering and iron ship- building, such details not at any time to exceed 25. (Act Feb. 26, 1879, 20 Stat., 322; see also act Jan. 13, 1891, 26 Stat., 716, and note to sec. 1225, R. S.) Former engineer officers who under the act of March 3, 1899 (30 Stat., 1004), perform engi- neering duty on shore only "shall be eligible for any shore duty compatible with their rank and grade to which the Secretary of the Navy may assign them." (Act June 30, 1914, 38 Stat., 394; act Mar. 3, 1915, 38 Stat., 930; see note to sec. 1404, R. S.) The effect of the act of March 3, 1915 (38 Stat., 930), so far as concerns former engineer officers now of the line is to remove the restric- tion which existed in the case of certain of said officers by which they were eligible only for engineering duty on shore. Such officers are now eUgible for any shore duty assignable to other hne officers of their rank. (File 26806- 140, June 9, 1916.) Line officers assigned to engineering duty only shall retain "the right to succession to command on shore in accordance with their seniority." (Act Aug. 29, 1916, 39 Stat., .580.) The detail of an officer from the Engineer Corps of the Army or Navy as superintendent of the State, War, and Navy Department build- ing was authorized by act of March 3, 1883 (22 Stat., 553.) The transfer of the Engineer Corps of the Navy to the line by the Navy personnel act of March 3, 1899 (30 Stat., 1004), does not preclude the appointment of a naval officer on the active list, formerly an ofticer of that corps, and now restricted to the performance of engineering duty, to the superintendency of the State, War, and' Navy building, as provided in the act of 498 The Navy. Pt.2. REVISED STATUTES. Sec. 1393. March 3, 1883 (22 Stat., 553). (25 Op. Atty. Gen., 508.) The act of March 3, 1883, does not authorize the detail as superintendent of the State, War, and Navy building of a retired officer of the Na\-j' transferred from the Engineer Corps to the Line for engineering duty only by the Navy personnel act of March 3, 1899. (25 Op. Atty. Gen., 508; see also note to sec. 1462, R. S.) The detail of officers in the Engineer Corps in the Army or Navy to perform services under the act of March 12, 1914 (38 Stat., 305), providing for the location, construction, and operation of railroads in the Territory of Alaska, was author- ized by section 1 of that act. "Grades" and "ranks" in Engineer Corps. — Under this section it was held that chief engineers constituted only one grade in the Na\y, although divided into four different ranks; that their rank changed with their seniority in that grade, but such change of rank did not constitute a change in office or grade; accordingly, that their changes in rank might be indicated by notification from the Secretary of the Navy, and that no examina- tion or appointment or confirmation by the Senate was necessary; that the mere fact that different rank is assigned to officers whose office is designated by the same title does not necessarily put such officers in different grades; the office remains the same. (20 Op. Atty. Gen., 358, citing Wood v. U. S., 107 U. S., 414, as to difference between rank and office; and explaining 16 Op. Attv. Gen., 417; see also Rutherford v. U. S., IS Ct. Cls., 339; and see note to Constitution, Art. II, sec. 3, under "Advancement in rank only." As to difference between "rank" and "grade," see generally, notes to sees. 1362 and 1457, R. S.) Sec. 1391. [Engineer Corps; appointments in, how made. Superseded.] It was superseded by the Xa\y personnel act of March 3, 1899 (30 Stat., 1004), by which the Engineer Corps was abolished. (See note to preceding section.) This section provided as follows: "Sec. 1391. Engineers shall be appointed by the President, by and with the advice and consent of the Senate." — (31 Aug., 1842, c. 279, 8. 6, V. 5, p 577. 3 Mar., 1845, c. 77, 8. 7, V. 5, p. 794. 25 July, 1866, c. 231, s. 7, V. 14, p. 223.) Sec. 1392. [Engineer Corps; qualifications for appointment and promotion. Superseded.] This section provided as follows: "Sec. 1392. No person under nineteen or over twenty-six years of age shall be appointed a second assistant engineer in the Na\^; nor shall any person be appointed or promoted in the Engineer Corps until after he has been found qualified by a board of competent engineers and medical officers designated by the Secretary of the Navy, and has complied with existing regulations." — (3 Mar., 1871, c. 117, s. 8, V. 16, p. 536; 24 Feb., 1874, c. 35, V. 18, p. 17.) It was superseded hy act of August 5, 1882 (22 Stat., 285), as amended by acts of March 2, 1889 (25 Stat., 878), and July 26, 1894 (28 Stat., 124), noted more fully iinder sections 1394 and 1521, Re\dsed Statutes, which made provision for the filling of all vacancies in the Engineer Corps by appointment from graduates of the Naval Academy. See also note to section 1390, Re\dsed Statutes, concerning the abolish- ment of the Engineer Corps, and see U. S. v. Redgrave, 116 U. S., 474, in which this section was cited . Sec. 1393. [Engineer of the fleet.] The President may designate among the chief engineers in the service, and appoint to every fleet or squadron, an engineer, who shall be denominated "engineer of the fleet." — (21 Apr., 1864, c. 63, s. 7, V. 13, p. 54.) Pay of fleet engineers was fixed at $4,400 per annum, by section 1556, Revised Statutes. See note to that section. See section 1373, Re\dsed Statutes, as to ap- pointment of fleet singeons; and section 1382, Revised Statutes, as to appointment of fleet paymasters. Section 1393 is not repealed by the NaA^ personnel act of March 3, 1899 (30 Stat., 1004), abolishing the Engineer Corps of the Navy. The office of "engineer of the fleet" continues, notwithstanding the provision in the later statute that ' 'the officers constituting the Engineer Corps of the Navy are transferred to the line of the Navy and shall be com- missioned accordingly." The duties of chief engineer in the Na\'y continue, though the officers have become merged in the line and are designated by another name. (Denig v. U. S., 37 Ct. Cls., 383.) What ofl&cers eligible for appointment as fleet engineer. — It was held by the Comptroller of the Treasmy (7 Comp. Dec, 24) that as the Navy personnel act of !March 3, 1899 (30 Stat., 1004), practically abolished the Engineer Coi-ps of the Na\'y, and with it the grade of chief engineer, by transferring that cor]3S to the line, the provision of section 1556 of the Revised Statutes for a special rate of pay for engineers of the fleet became inopera- tive, since there existed thereafter no grade from which the President might designate engineers of the fleet in pursuance of section 1393. The Court of Claims, however, in the case of Denig v. U. S., above cited, laid down a different rule and held that, where an of- ficer of the Naw who on March_ 3, 1899, belonged to the grade of chief engineer, has since that date been duly designated to per- form the duties of engineer of the fleet, he is 499 Sec. 1393. PL 2. REVISED STATUTES. The Navy. entitletl ti> the pay provided for that position by section 155() of tne Revised Statutes, not- withstanding the ])nivisiiiu of the Navy per- sonnel act transferrint!; the Coros of Engineers to the line of the Navy. The comptroller subsequently followed the decision of the Court of Claims in the Denig case, and laid down the rule as follows (8 ('omp. Dec, 842): "An oliicer of the Navy who, on March 3, 1899, belonged to the grade of chief engineers and who was duly designated as engineer of the fleet, ib entit led to pay at the rate of $4,400 per annum while performing such duty." Both the Denig case and the above decision were limited by the fact that the officer was a chief engineer on March 3, 1899, the date the Navy personnel act was approved. (9 Comp. Dec, 301.) It must be conceded, as stated by the Court of Claims, that the duties of chief engineers were not abolished by the Navy personnel act; that it was therefore in the power of the Presi- dent to designate some officer to perform those duties; and that whether he designated such officer to perform them as chief_ engineer or by some other title is immaterial in so far as the performance of the duties is concerned. The Court of Claims has decided that the change effected by the Navy personnel act was merely a change of name or of official title; accepting this decision as a judicial interpretation of the law, the distinction is immaterial between the case of a person who was a chief engineer at the time the law was changed and who continued to perform the duties of chief engineer, and the case of a person who was a passed assistant engi- neer at the time and who continued to perform the duties of passed assistant engineer until promoted to lieutenant commander and as- signed to the duties of chief engineer. If the former is held to be a chief engineer under a different official title, the latter may also be. The Navy Regulations proceed upon the theory that the limitation of appointments of engineers of the fleet to the grade of chief engineer no longer applies, and that the statute is satisfied if such appointments are made from among lieutenant commanders, irrespective of whether the appointees were formerly chief engineers or not. Accordingly, held that an officer of the Navy who, on March 3, 1899, belonged to the grade of passed assistant engineer with the relative rank of lieutenant, and who was sub- sequently promoted to the grade of lieutenant- commander and thereafter designated an engi- neer of the fleet, is entitled to pay at the rate of $4,400 per annum while performing such duty, under authority of section 1556, Revised Stat- utes. (9 Comp. Dec, 301.) Retired officer eligible for appointment as fleet engineer. — A retired officer of the Navy is "in the service " within the meaning of section 1393, and therefore eligible for assign- ment to said duties. A lieutenant-commander in the Navy who was retired with the rank of commander and afterwards assigned to sea duty under the act of June /, 1900 (.31 Stat., 703), aa lleet engineer, was entitled while serving under that assignment to the pay of a fleet engineer, which is $4,400 per annum. (12 Comp. Dec, 185; compare 25 Op. Atty. Gen., 508, noted under sec. 1390, R. S.; see also not(^ to sec. 1462, R. S.) Appointment does not require advice and consent of the Senate. — Section 1393, Revised Statutes, authorizes the President to appoint an engineer of the fleet; the consent of the Senate not having been required by Con- fress, such consent is unnecessary, and the 'resident may make such appointment with- out submitting the same to the Senate for con- firmation. _ (22 Op. Atty. Gen., 82.) It is universally true that when Congress, in pursuance of its authority imder the provision of the Constitution (Art. II, sec. 2, clause 2), sees fit to give the sole power of appointment to the President, it does so by language appropri- ate to that end, such as the imqualified phrase "may appoint." Under such language the President is vested with power of appointing alone. (23 Op. Atty. Gen., 136.) _ For other cases, see note to Constitution, Art. II, sec. 2, clause 2, under, "II. Constitutional power of appointment." Section 1393 is rather permissive of a power that existed in the President to designate fleet engineers when in his judgment they be- come necessary, though said section carries with it the right to the additional compensation provided for by section 1556. The necessity for the appointment of a fleet engineer must be left to the discretion of the President, and when he acta the presumption is that he has per- formed his duty according to law. (Denig v. U. S., 37 Ct. Cls., 383, 393.) Secretary of the Navy acts for the Presi- dent. — The provision of the statute is satisfied when the Secretary of the Navy, acting, as he does in such matters, for the President, ap- proves the designation of officers selected by a commander in chief to act as his general staff. (Denig v. U. S., 37 Ct. Cls., 383, 391. See also note to sec. 1382, R. S.) Under sections 1373, 1382, and 1393, Revised Statutes, which authorize the designation and appointment by the President of certain officers of the fleet, officers designated and appointed by an order of the commander in chief of a naval force, approved by the Secretary of the Navy, are entitled to the pay provided for those positions, respectively, from the date of such approval. (5 Comp. Dec, 888.) Chief of Bureau of Navigation does not act for the President. — An officer ordered by the Chief of the Bm-eau of Navigation to duty as fleet engineer is not entitled to the pay pro- vided by section 1556, Revised Statutes, for fleet engineers. To entitle an officer to the pay of fleet engineer, such designation must be made by the Secretary of the Navy acting for the President. There is no authority for the Chief of the Bureau of Navigation to act for the Presi- dent in making such designation. (Comp. Dec, Feb. 14, 1912, 132 S. and A. Memo., 1994. See also Truitt v. U. S., 38 Ct. Cls., 398, and Weller v. U. S., 41 Ct. Cls., 324, 336, noted under sec. 158, R. S.) Commander in chief acts for President when authorized by Navy Regulations. — The statute requires the appointment to be made by the President. However, the Navy Regulations of 1900 (par. 2 of art. 367), provide 500 The Navy. Pt. 2. REVISED STATUTES. Sec. 1395. that "when not designated by the department, the senior engineer, medical, pay, and marine officers of the fleet or squadron may be detailed by the commander in chief to act as fleet staff officers. ' ' The Navy Regulations are issued by the authority of the President. The above pro- vision must therefore be construed as authority from him to the commander in chief of a naval force, under certain conditions, to designate cer- tain officers to act as fleet officers, and the action of the commander in chief in pursuance of the regulation becomes the action of the President. TVliere the designation of an engineer of the fleet was made in accordance with the above regulation, he is entitled to the pay of fleet engi- neer from the date of his designation as such; if not, the beginning of such pay dates from the time when his designation was approved by the department. (9 Comp. Dec, 301, citing 5 Comp. Dec, 889.) [Art. 367 (2) Navy Regs., 1900, was embodied in Navy Regulations, 1913, ae art. R-1826 (2), except that the latter article did not authorize the commander in chief to designate the senior engineer as a fleet staff officer, the engineer of the fleet under said Regulations not being a member of the fleet staff, but instead, under arts. R-1816, 1817, being made a member of the personal staff of the commander in chief. By changes in Navy Regulations and Instructions, No. 6, of Apr. 15, 1916, the designations "personal" staff and "fleet staff" were abolished.] The duties of a fl.eet engineer, as defined by Naval Instructions, are duties relating to the vessels of a fleet, in connection with their stores, engines, boilers, machinery, etc., and the exer- cise of supervision over the other engineer offi- cers of the fleet, rather than duties of a pecu- liarly confidential and personal nature to the commander in chief; and are not in themselves of a character for the performance of which the law confers additional pay aa aid. (Comp. Dec, June 10, 1914, 160 S. and A. Memo., 3256; see also act May 13, 1908, 35 Stat., 128, as to pay of aids to rear admirals.) An engineer of the fleet is a member of the fleet staff of a flag officer, and as such has special duties to perform, in consideration of which he receives increased pay. The position is some- what analogous in this respect to that of aid, who is a member of the personal staff of the flag officer, and who receives additional pay for the additional services performed as such. (12 Comp. Dec, 185.) [Under Navy Regulations, 1913, the fleet en^eer was not a member of the fleet staff, but of the personal staff of the flag officer. By changes in Navy Regulations and Instructions, No. 6, of Apr. 15, 1916, the desig- nations "personal" staff and "fleet staff" were abolished.] 1394. [Engineer Corps; appointments from cadet engineers. Super- Sec, seded.] This section provided as follo"ws: "Sec. 1394. Cadet engineers who are gradu- ated with credit in the scientific and mechan- ical class of the Naval Academy may, upon the recommendation of the academic board, be ap- pointed by the President and confirmed by the Senate as second assistant engineers." — (31 Aug., 1842, c 279, s. 6, v. 5, p. 577; 4 July, 1864, c 252, B. 2, v. 13, p. 393- 24 Feb., 1874, c. 35, V. 18, p. 17.) It was amended by act of February 24, 1874, section 1 (18 Stat., 17), which changed the title of second assistant engineer to "assistant engi- neer." It was superseded by act of August 5, 1882 (22 Stat., 285), which provided that thereafter no appointments of cadet-engineers should be made to the Naval Academy, but that all under- graduates at the Academy should be styled naval cadets, and final graduates of the acad- emy should be appointed to the line and Engi- neer Corps of the Navy, and to the Marine Corps, as necessary to fill vacancies. Said act was in turn superseded by act of March 2, 1889 (25 Stat., 878), which made pro- vision for separating students at the Naval Academy into a "line and Marine Corps divi- sion," and an "Engineer Corps division," and provided that "the vacancies in the lowest grades of the commissioned officers of the Engi- neer Corps of the Navy" should be filled "by appointments from the final graduates of the engineer division at the end of their six years' Sec. 1395. [Chaplains; number and appointment of.] There shall be in the Navy, for the pubUc armed vessels of the United States m actual service not exceeding twenty-four chaplains, who shall be appointed by the President course," and that "if the number of vacancies in the lowest grades aforesaid, occurring in any year shall be greater than the number of final graduates of that year, the surplus vacancies shall be filled from the final graduates of fol- lowing years, as they shall become available." The latter act was amended by act of July 26, 1894 (28 Stat., 124), which provided that, in case the number of vacancies in the grade of assistant engineer should exceed the number of naval cadets in the engineer division of the class finally graduated in any one year, the Secretary of the Navy should select a number equal to such excess from the final graduates of said class in the line di\dsion, and such final graduates should be appointed to fill vacancies in the grade of assistant engineer. The appointment of cadet engineers to the Naval Academy was authorized by section 1522, Revised Statutes. ^ The act of August 5, 1882, above noted, prohibited further appoint- ments of cadet-engineers and changed the title of all undergraduates at the Naval Academy to "naval cadets." This title of naval cadet was changed to "midshipman" by act of July 1, 1902 (32 Stat., 686). The Engineer Corps w^as abolished by the Navy personnel act of March 3, 1899, noted above, under section 1390, Re\'ised Statutes. See section 1521, Revised Statutes, and U. S. f. Redgrave (116 U. S., 474), in which this section was cited. 501 Sec. 1397. PL 2. REVISED STATUTES. The Navy. with the advice and consent of the Senate. — (21 Apr., 1806, c. 35, s. 3, v. 2, p. 390. 16 Apr., 1814, c. 58, s. 5, v. 3, p. 125. 4 Aug., 1842, c. 121, s. 1, v. 5, p. 500.) Amendment to this section was made by act of June 30, 1914 (38 Stat., 403), which created the grade of acting chaplain in the Na\^ and pro^dded that "hereafter the total number of chaplains and acting chaplains in the Navy shall be one to each twelve hundred and fifty of the total personnel of the Navy and Marine Corps as fixed by law, including midshipmen, apprentice seamen, and naval prisoners." The same act pro- \rided that "original appointments" should be made by the Secretary of the Navy in the grade of acting chaplain, and that acting chaplains should be commissioned as chap- lains after three years' sea service, and after successfully passing the prescribed exami- nation. '^Provided, That not more than seven acting chaplains shall be commis- sioned chaplains in any one year." The act of May 22, 1917 (40 Stat., 85), as amended By act of July 1, 1918 (40 Stat., 715), which temporarily increased the per- sonnel of the Navy, provided (sec. 4) that ''temporary chaplains and temporary act- ing chaplains in the Navy may be ap- pointed for service during the period of the war in the proportion of the personnel of the Navy as now prescribed by existing law." Pay of chaplains: See act of August 29, J 916 (39 Stat., 581), providing that " hereafter all commissioned officers of the active list of the Navy shall receive the same pay and allowances according to rank and length of service." (See also note to sec. 1556, R. S.) Rank of chaplains: See act of June 30, 1914 (38 Stat., 403). Sec. 1396. [Chaplains; qualifications of.] A chaplain shall not be less than twenty-one nor more than thirty-five years of age at the time of his appointment. — (14 July, 1862, c. 164, s. 7, v. 12, p. 565.) Amendment to this section was made by act of June 30, 1914 (38 Stat., 403), which pro- vided that chaplains should be commis- sioned from acting chaplains who shall have had three years' sea service, and shall have established their physical, mental, moral, and professional fitness to the satisfaction of the Secretary of the Navy by examina- tion by a board of chaplains and medical officers of the Navy. Temporary chaplains and temporary acting chaplains appointed for war service in accordance with act of May 22, 1917, sec- tion 5 (40 Stat., 85), as amended by act of July 1, 1918 (140 Stat., 716), shall be not more than 50 years of age. Special age limits were also prescribed for officers transferred to the Regular Na\'y from the temporary Navy and Naval Reserve Force, by act of June 4, 1920, section 5 (41 Stat., 835). Age of candidates for appointment. — See cases noted under section 1370, Revised Stat- utes. The act of June 30, 1914, does not prescribe the age limit of appointees as acting chaplains. Section 1396, Revised Statutes, prescribes that chaplains on the date of appointment as such shall be between the ages of 21 and 35 years, and not being specifically repealed, and not being in conflict with the act of 1914, still governs appointments to the grade of chaplain. If, after serving at least three years in the grade of acting chaplain, appointees as chaplains must be between the ages of 21 and 35 years, the act of 1914 impliedly requires that appointees as acting chaplains shall be of such an age at the time of appointment that when they have served at sea as acting chaplains for at least three years it will be possible for them to qualify under the terms of section 1396 for appointment as chaplains. (File 15721-7, Aug. 31, 1914.) The Secretary of the Navy has instructed that acting chaplains at the time of appointment as such shall be between the ages of 21 and 31^ years. (File 15721-15, Feb. 11, 1918.) Sec. 1397. [Chaplains; form of worship.] Every chaplain shall be permitted to conduct pubHc worship according to the manner and forms of the church of which he may be a member. — (1 June, 1860, c. 67, s. 1, v. 12, p. 24.) Commanders of vessels and naval stations to which chaplains are attached shall cause divine service to be performed on Sunday whenever the weather and other circum- stances allow it to be done. (Sec. 1624, R. S., art. 2.) Officers, seamen, and others in the naval service are earnestly recommended diligently to attend at every performance of the worship of Almighty God. (Sec. 1624, R. S., art. 2.) Students at Naval Academy not to pursue studies on Sunday. (Sec. 1526, R. S.) General courts-martial are enjoined to sit from day to day "Sundays excepted." (Sec. 1624, R. S., art. 45.) Unnecessary work on Sundays by persons under naval jurisdiction is prohibited by Naval In- structions, 1913 (art. 86), and General Order No. 456, March 15, 1919. _ Unbecoming behavior during divine service shall be punished as a general or summary court-martial may direct. (Sec. 1624, R. S., art. 3.) 502 Tlie Navy. PL 2. REVISED STATUTES. Sec. 1400. Sec. 1398. [Chaplains; annual report by.] Chaplains shall report annually to the Secretary of the Navy the official services performed by them. — (1 June, 1860, c. 67, s. 1, V. 12, p. 24.) (Sec. 101, Criminal Code, act Mar. 4, 1909, 35 Stat., 1107.) Neglect or refusal of any officer to make any re- port within the time prescribed by law is punishable by fine of not more than $1,000. Sec. 1399. [Professors of Mathematics, number of.] The number of pro- fessors of mathematics in the Navy shall not exceed twelve. — (3 Aug., 1848, c. 121, s. 12, V. 9, p. 272. 31 May, 1872, c. 240, s. 1, v. 17, p. 192. "Hereafter no further appointments shall be made to the corps of professors of mathe- matice, and that corps shall cease to exist upon the death, resignation, or dismissal of the officers now carried in that corps on the active and retired lists of the Navy." (Act Aug. 29, lOlfr, 39 Stat._, 577.) Rank of professors of mathematics: See section 1480, Revised Statutes. Historical note. — The act of August 3, 1848, section 12 (9 Stat., 272), provided, "That the number of professors of mathematics in the Navy shall not exceed twelve; that they shall be appointed and commissioned by the Presi- dent of the United States, by and with the ad- vice and consent of the Senate, and shall per- form such duties as may be assigned them by order of the Secretary of the Navy, at the Naval School, the Ob8er\'atory, and on board ships of war, in instructing the midshipmen of the Navy or otherwise." The act of May 21, 1864, section 3 (13 Stat., 85), provided, '"that there shall be added three professors to the number of professors of mathe- matics now authorized by law, who shall be appointed and commissioned as now pro^dded by law, and who shall be a professor of ethics and English studies, a professor of Spanish, and a professor of drawing, at the Naval Academy." By act of April 17, 1866, section 7 (14 Stat., 38), it was provided ' ' that hereafter no vacancy in the grade of professor of mathematics in the Navy shall be filled." The act of May 31, 1872 (17 Stat., 192), pro- vided that "there shall be three professors of mathematics who shall have the relative rank of captain; four that of commander; and five that of lieutenant commander or lieutenant." The act of 1848, with reference to the number of professors of mathematics, is embodied in section 1399 Re-\dsed Statutes; the act of 1864, concerning additional professors for duty at the Naval Academy, is embodied in section 1528, Revised Statutes; and the act of 1872, confer- ring relative rank upon twelve professors of mathematics, was carried into the Revised Statutes as section 1480. [The inteqiretation of these sections of the Revised Statutes has been, in practice, that section 1399 limits the total number of professors of mathematics to twelve; and that section 1528 relates to the assignment to duty of three of these twelve professors of mathematics.] The appointment of additional profes- sors of mathematics has been authorized in specific cases as follows: By act of April 27, 1904 (33 Stat., 345), the ap- pointment was authorized of a professor of mathematics of the rank of commander, "to be an extra number in the list of professors of mathematics in the Navy." By act of June 29, 1906 (34 Stat., 579), the ap- pointment was authorized of "two additional professors of mathematics in the Navy, who shall be extra numbers in said list." By act of May 6, 1910 (36 Stat., 352), the ap- pointment was authorized of a particular indi- vidual (Guy K. Calhoun) "as additional pro- fessor of mathematics in the Navy, as an extra niimber." By act of March 4, 1913 (37 Stat., 906), the ap- pointment was authorized of two particular individuals (Nathaniel Matson Terry and Wil- liam Woolsey Johnson) as "professors in the corps of professors of mathematics in the Navy with the rank of lieutenant as extra numbers not in the line of promotion," and it was further provided that in these cases "limitations as to age at the time of appointment shall not apply nor shall age constitute a claim for retirement." ["Limitations as to age" for appointment as professor of mathematics are not fixed by any law, other than that prescribing the age for retirement of officers. See note to section 1444, Re\-ised Statutes.] Increases in number of professors of mathematics not favored. — The Na\y De- partment considers it inadvisable to make any further increase in the corps of professors of mathematics. There is no need for such in- crease, either at the Naval Academy or for the service at large. There are already certain addi- tional professors of mathematics, some of whom are on duty at the Naval Academy, and the policy of the department is to reduce to a mini- mum the niunber of instructors at the academy who are not seagoing naval officers. (File 26289-11, Dec. 17, 1911. See note to sec. 1401, R. S. and see act of Aug. 29, 1916, noted above.) Sec. 1400. [Professors of mathematics ; appointment of. Obsolete.] This section provided as follows: "Sec 1400. Professors of mathematics shall be appointed and conamissioned by the Presi- dent of the United States, by and with the ad- vice and consent of the Senate." — (3 Aug., 1848, c. 121, 6. 12, V. 9, p. 272.) It is rendered obsolete bv the act of August 29, 1916 (39 Stat., 577), quoted under section 1399, Revised Statutes. Appointments as professors of mathe- matics were prohibited unless appointees had passed a physical examination before a board 503 Sec. 1401. PL i\ REVISED STATUTES. The Navy. of naval Burgcone and a profcesional examina- tion before a board of proieesors of mathematics in the Navy, and received a favorable report from eaid boarde. (Act Jan. 20, 1881, 21 Stat., 317. See 17 Op. Atty. Gen., 103, noted under sec. 1101, R. S.) See note to section 1528, Revised Statutes, concerning civilian professors at the iS'aval Academy. Civilian professors not entitled to prefer- ence in appointment. — Section 1528, Revised Statutes, does not entitle civiUan professors of English, Spanish, and drawing at the Naval Academy to be promoted as a matter of right to the dorps of professors of mathematics, for assignment to these subjects. The contention that the appointing power is thus restricted in ita selection to the civilian professors serving at the academy is without support in the law or the practice of the Navy Department ex- tending through a long period of years. Ac- cordingly, held thait a vacancy existing in the regular corps of professors of mathematics in the Navy may be filled by the appointment of any candidate possessing the necessary qualifica- tions, and that no person can claim that he is entitled to be appointed thereto as a matter of law. (File 26289-11, Dec. 17, 1911.) The provisions of section 1528, Revised Statutes, concerning the assignment of three professors of mathematics to special duty, re- lates to the performance of duty by such pro- fessors after appointment, and does not pur- port to restrict the appointing power in the matter of filling vacancies. (File 26289-11, Dec. 17, 1911.) Candidate must qualify physically for general duty. — A candidate for appointment as professor of mathematics to fill a vacancy in said corps was found by the board of medical examiners "physically qualified to perform all his duties as professor of mathematics, U. S. Navy, for duty in coimection with instruction in drawing at the Naval Academy, AnnapolLs, Md." Held, that such a qualified finding is erroneous and irregular. Should the candidate be appointed he W(mld be commissioned as an officer of the Navy and be subject to all the laws and regulaticms governing commissioned officers, including the benefit of the retirement laws and the provisions of section 1401, Re- vised Statutes, relating to the duties to which professors of mathematics may be assigned. The duty to be assigned this particular indi- vidual, should he be commissioned, is not a question which the board of medical examiners is authorized to consider in connection with his physical qualifications for appointment. The finding of the board in this case, if ap- proved, might be construed as a restriction upon the department in exercising its discre- tion in the matter of assignment to duty of the candidate after his appointment and commis- sioning as a professor of mathematics of the Navy. Such a condition of affairs would oper- ate as a dangerous precedent in making the assignment to duty of officers of the corps of professors of mathematics permanent, would have the practical effect of reducing the num- ber of officers of that corps who would be avail- able for the duty contemplated by law and by regulations, and would be in contravention of the existing laws and regulations. (File 26289- 13:2, Aug. 3 and July 28, 1913.) Sec. 1401. [Professors of mathematics; duties of.] Professors of mathe- matics shall perform such duties as may be assigned them by order of the Secre- tary of the Navy, at the Naval Academy, the Naval Observatory, and on board ships of war, in instructing the midshipmen of the Navy, or otherwise. — (3 Aug., 1848, c. 121, s. 12, v. 9, p. 272.) Nautical Almanac: Secretary of the Navy may place the supervision of the Nautical Almanac in charge of any officer or pro- fessor of mathematics in the Navy who is competent for that service. (Sec. 436, R. S.) Naval Academy: Three professors of mathe- matics shall be assigned to duty at the Naval Academy, one as professor of ethics and English studies, one as professor of the Spanish language, and one as professor of drawing. (Sec. 1528, R. S.) Assignment to duty governed by tliis section. — \Miile the law provides that "three professors of mathematics shall be assigned to duty at the Naval Academy, one as professor of ethics and English studies, one as professor of the Spanish language, and one as professor of drawing" (sec. 1528, R.S.), it is also provided by another section of the Revised Stftutes (sec. 1401) that "professors of mathematics shall per- form such duties as may be assigned them by order of the Secretary of the Navy, at the Naval Academy, the Naval Observatory, and on board ships of war, in instructing the midshipmen of the Navy, or otherwise." Under the contempo- raneous and long continued construction of the Navy Department, the former provision has been treated as advisory and not mandatory. (File 26289-11, Dec. 17, 1911; see also note to sec. 1400, R. S.; and see notes to Constitution, Art. I, sec. 8, clause 14, under "I. General powers of Congress and President," and Art. II, sec. 2, clause 1, under "I. Powers of Commander in Chief." "Professors of mathematics" a mis- nomer; duties not necessarily mathe- matical. — The heads of the departments of ethics and English studies, of Spanish and other modern languages, and of d rawing, at the Naval Academy, should, although the title is a misnomer, be commissioned as "professors of mathematics" (sec. 1528, R. S.), after passing the examinations required by the act of Janu- ary 20, 1881 (21 Stat., 317). The purpose of section 1528, that persons known to the law and the naval register as "professors of mathe- matics" should be engaged in teaching these 504 The Navy. Pt. 2. REVISED STATUTES. Sec. 1402. other branches of learning, is too obvious for construction. That the name did not indicate the sole duty of the office is further apparent from the express declaration of the act of August 3, 1848, section 12 (now sees. 1399- 1401, R. S.), "that the number of professors of mathematics in the Navy shall not exceed twelve ; that they shall be appointed and com- missioned by the President of the United States by and with the advice and consent of the Senate, and shall perform such duties as may he assigned them by order of the Secretary of the Navy at the naval school, the observatory, and on board ships of war, or otherwise.'" Section 1528, ReWsed Statutes, shows that, certainly as to three of these professors, the duties to be assigned them were not to be mathematical in their nature. (17 Op. Atty. Gen., 103.) Policy of the Navy Department. — In practice the policy of the Navy Department has been to secure seagoing officers as instruc- tors at the Naval Academy, and to reduce to a minimum the number of instructors at the Academy who are not seagoing naval officers; and for this reason it has been considered inad- visable to make any further increase in the corps of professors of mathematics. (File 26289-11, Dec. 17, 1911.) [But see provision in naval appropriation actfe, under "Naval Academy," that "no part of any sum in this act appropriated shall be expended in the pay or allowances of any commissioned officer of the Navy detailed for duty as an instructor at the United States Naval Academy to perform duties which were performed by civilian in- structors on January first, nineteen hundred and thirteen." This was contained in the naval appropriation acts of March 4, 1913 (37 Stat., 906), June 30, 1914 (38 Stat., 408), March 3, 1915 (38 Stat., 947), August 29, 1916 (39 Stat., 607), and March 4. 1917 (39 Stat.. 1187). It was omitted in the naval appropriation act of July 1, 1918 (40 Stat., 733).] See act of August 29, 1916, noted under section 1399, Revised Statutes. Sec. 1402. [Construction Corps; number and appointment of naval con- structors.] The President, by and with the advice and consent of the Senate, may appomt naval constructors, who shall have rank and pay as officers of the Navy.— (25 July, 1866, c. 231, s. 7, v. 14, p. 223. 3 Mar., 1871, c. 117, s. 9, V. 16, p. 536.) Appointments as naval constructors are to be made by promotion of assistant naval con- structors who have had not less than eight nor more than fourteen years' ser\ice as assistant naval constructors. (Act Mar. 3, 1899, sec. 10, 30 Stat., 1006.) Appointments as naval constructors are to be made ' 'from the highest members " in the Construction Corps, "according to sen- iority." (Sec. 1480, R. S.. as amended by act Feb. 27, 1877, 19 Stat.,' 244.) Number of naval constructors and assistant naval constructors on the active list was fixed at 40 by act March 3, 1899, section 10 (30 Stat., 1006). This number was increased by act July 1, 1902 (32 Stat., 683), which authorized the appointment of 6 additional assistant naval constructors. A further increase was made by act March 3, 1903 (32 Stat., 1197), which authorized the appointment of 29 "additional naval constructors and assistant naval con- structors, in all seventv-five." By act March 3, 1915 (38 Stat., 945), the transfer was authorized to the grade of assistant naval constructor of not more than 24 line officers of the Navy, making a total of 99 naval constructors and assistant naval constructors authorized by law. (See note to sec. 1403, R. S.) Bv act of August 29, 1916 (39 Stat., 576, 577), it was provided that "the total authorized number of commissioned officers of the active list of the following staff corps, exclusive of commissioned warrant officers, shall be based on percentages of the total number of commissioned officers of the active list of the line of the Navy as follows: * * * Construction Corps, five per centum. * * * The total number of commissioned officers of the active list of the following mentioned staff corps at any one time, exclusive of cornmissioned warrant officers, shall be distributed in the various grades of the respective corps as follows: * * * Construction Corps : One- half naval constructors mth the rank of rear admiral to eight and one-half naval constructors with the rank of captain, to fourteen naval constructors with the rank of commander, to seventy-seven naval constructors and assistant naval construc- tors with rank below commander. * * * When there is an odd number of officers in the grade or rank of rear admiral in the line, or in each corps, the lower di\dsion thereof shall include the excess in number, except where there is but one. WTierever a final fraction occurs in computing the authorized number of any corps, grade, or rank in the naval 8er\dce", the nearest whole number shall be regarded as the authorized number: Provided, That at least one officer shall be allowed in each grade or rank. For the purpose of determining the authorized number of officers in any grade or rank of the line or of the staff corps, there shall be excluded from consideration those officers carried by law as additional numbers, in- cluding staff officers heretofore permanently commissioned with the rank of rear admiral, and nothing contained herein shall be held to reduce below that heretofore authorized by law the number of officers in any grade or rank in the staff corps. ' ' The temporary appointment of additional officers during the period of the existing war was author- ized by the act of May 22, 1917, section 4 605 Sec. 1403. PL 2. REVISED STATUTES. The Navy. (40 Stat., 85), as amended by act of July 1, 1918 (40 Stat., 715), which also author- izetl temporary appointments and promo- tions to lill, during the period of the war, the deficiency existing prior to May 22, 1917, in the total number of commissioned officers authorized by the act of August 29, 1916. By act of June 4, 1920 (41 Stat., 834), it was provided ''that the number of commissioned oflicers of the line, perma- nent, temporary, and reserve on active duty shall not exceed 4 per centum of the total authorized enlisted strength of the Regular Navy, and the number of staff officers on active duty of whatever kind shall be in the same j^roportions as author- ized by existing law. * * * That noth- ing herein shall l^e construed as reducing the permanent commissioned * * * strength of the Regular Navy as authorized by existing law." Pay of all officers of the Navy is prescribed by act of May 13, 1908, and amendments, noted under section 1556, Revised Statutes. Rank of naval constructors is fixed by act of March 3, 1899, section 10, as amended by act of August 29, 1916 (39 Stat., 577). Ad- vancement in rank of staff officers, up to and including the rank of lieutenant com- mander, is regulated by act of August 29, 1916 (39 Stat., 576). Advancement to the ranks of commander, captain, and rear admiral in the Staff Corps of the Navy are to be made by selection upon recommen- dation of a board of officers of the corps concerned. (Act of July 1, 1918, 40 Stat., 718.) "Vacancies in the Construction Corps shall be filled in the manner now prescribed by law, at such annual rate as the Secretary of the Navy may prescribe." (Act Aug. 29, 1916, 39 Stat., 577.) Number not to be increased by implica- tion. — It will be observed from the statutes that in legislating with respect to naval con- structors Congress has been very careful to limit their number. The number thus fixed by law should not be increased without legisla- tion sufficiently explicit to clearly justify it. WTien Congress has seen fit to make increases in the numbers of officers in the Navy, either generally or in particular corps or grades, it as generally used specific and apt language to accomplish that object. Accordingly, held that where, in accordance with law, a naval constructor with the rank of captain, who had served as Chief of the Bureau of Construction and Repair, with the rank of rear admiral and title of Chief Constructor while so serving, was given a permanent commission with the title of Chief Constructor and the rank of rear admiral, and continued on the active list as such, although no longer Chief of the Bureau of Construction and Repair, the sole purpose of the law authorizing such action was to make permanent the rank, title, and emolu- ments which this officer had theretofore tem- porarily held as chief of bureau, and that Congress did not intend thereby to increase the number of officers in the Construction Corps of the Navy; and therefore the com- missioning of this ofiicer as a Chief Constructor in the Navy with the rank of rear admiral did not create a new grade in the Navy, nor did the same fact create a vacancy in the grade of naval constructor with the rank of captain or in the total number of naval constructors and assistant naval constructors as provided by law. (28 Op. Atty. Gen., 526. The act of June 24, 1910, 36 Stat., 607, 608, providing for the issuance of permanent commissions to officers, under the circumstances in this case, as Chief Constructor with the rank of rear admiral, was repealed by act August 22, 1912, 37 Stat., 328. See note to sec. 421, R. S.) Sec. 1403. [Construction Corps; appointment of assistant naval constructors.] Cadet engineers who are graduated with credit in the scientific and mechanical class of the Naval Academy may, upon the recommendation of the academic board, be immediately appointed as assistant naval constructors. — (4 July, 1864, c. 252, s. 2, v. 13, p. 393.) Amendment to this section was made by act of August 5, 1882 (22 Stat., 285). which pro- vided that thereafter no appointments of cadet-engineers shoidd be made to the Naval Academy, but that all undergradu- ates at the Academy should be styled "naval cadets." This title of naval cadet was changed to "midshipman" bv act of July 1, 1902 (32 Stat., 686). Authority is given the Secretary of the Navy by section 1522, Re\ised Statutes, to make pro\ision by regulations for educating at the Naval Academy as naval constructors such persons as may show a pecuhar apti- tude therefor, and to afford such persons all proper facilities for such a "scientific mechanical education " as will fit them for said profession. Appointments to the grade of assistant naval constructor may be made by transfer from officers of the line of the Na\y who have had not less than three years' service in the grade of ensign and have taken, or are taking, satisfactorily, a post-graduate course in naval architecture under orders from the Secretary of the Naw; the total increase in the nmnber of naval constructors and assistant naval constructors by reason of such transfers not to exceed 24, of which not more than 5 may be made in any one calendar vear. (Act Mar. 3, 1915, 38 Stat., 945.) By act of August 29, 1916 (39 Stat., 577V it was pro\'ided that "vacancies in the Construction Corps shall be filled in the manner now prescribed by law. at such annual rate as the Secretary of the Navy^ may prescribe," and "that hereafter ensigns of not less than one year's service as such shall be eligible for transfer to the Construction Corps." 506 The Navy. PL 2. REVISED STATUTES. Sec. 1404. ByactofJuly9,1913(38Stat.,103),itisprovided that "midshipmen on graduation * * * may be assigned by the Secretary of the Navy to fill vacancies in the lowest com- missioned grades of the * * * staff corps of the Na^'^^" Number of naval constructors and assistant naval constructors: See note to section 1402, Revised Statutes. Rank of assistant naval constructors is fixed by act of March 8, 1899, section 10, as amended by act of August 29, 1916 (39 Stat., 577). Sec. 1404. [Construction Corps; duties of. Superseded.] I This section provided as follows: "Sec. 1404. Naval constructors may be re- quired to perform duty at any navy yard or other station." — (3 Mar., 1845, c". 77, s. 2, v. 5, p. 794.) It was superseded by the following pro- vision in the act of June 30, 1914 (38 Stat. , 394), repeated in act of March 3, 1915 (38 Stat., 930): << * * * officers of the Construction Corps shall be eligible for any shore duty compatible Avith their rank and grade to which the Secre- tary of the Navy may assign them." "Line oflBLcers may be detailed for duty under staff oflB.cers in the manufacturing and repair departments of the navy yards and naval stations, and all laws or parts of laws in con- flict herewith are herebv repealed . ' ' (Act June 24, 1910, 36 Stat., 614.) Sea duty. — "Naval constructors and assist- ant naval constructors shall when practicable be detailed for service afloat in such fleets or on such repair ships as the department may desig- nate." (Art. R-3122, Navy Regs., 1913.) General nature of duties. — Naval con- structors are appointed by the President and have rank and pay as officers of the Na\'^', and may be required to perform duty at any navy yard or other station. Their duties in general are to haA^e general superintendence and charge of the construction and repair of all ships, and to cause thorough examination at least once a month of all ships in reserve to see that they are carefullv guarded against deterioration or de- cay. (Stacker v. U. S., 39 Ct. Cls., 300.) Performance of duty under War Depart- ment. — The statute creating the office of naval constructor is broad enough to include the re- quirement of service on vessels in the employ- ment of the War Department, and gives the Government the right to demand such services when required, and at such times and places as may seem expedient; and this right is not affected by the omission to include such duty by specific mention in the Navy Regulations. (Stocker v. U. S., 39 Ct. Cls., 300.) Where a naval constructor is detailed by the Secretary of the Navy to inspect a vessel, the fact that she is chartered by the War Depart- ment as an Armj^ transport does not burden the officer with services not incident to his office. The duties required of him were of the general nature performed by him in the Navy. Addi- tional compensation for such inspection service is prohibited bv Revised Statutes, section 1765. (Stocker i;. U. S., 39 Ct. Cls., 300.) The Army and Navy constitute the military force of the Government, and their duties are to cooperate when necessity or emergency de- mands it. For this purpose they are a unit under the authority of one Commander in Chief. The Army has no officer corresponding to a naval constructor, and when it becomes neces- sary to use ships at sea to transport the troops of the Army it becomes and is the duty of the Navy, with all its equipment and forces, when properly directed, to give necessary assistance and protection to such transportation. (Stocker V. U. S., 39 Ct. Cls., 300.) See also section 1437, Revised Statutes, pro- viding that "the President may detail, tempo- rarily, three competent naval officers for the service of the War Department in the inspec- tion of transport vessels, and for such other services as may be designated by the Secretary of War." (This statute was not cited by the Court of Claims in the case above noted . ) Military duties are not compatible with grades of the Construction Corps. — Duties of a purely military nature, such as contem- plated by Article R-1003, paragraphs 1 and 4, Na\'y Regulations, 1913 (military command and senior officer present), are not compatible with thegradesof the Construction Corps, and are not, therefore, within the scope of the clause above- quoted from the naval appropriation act of March 3, 1915. (File 26806-140, June 9, 1916.) The law does not say that officers of the Con- struction Corps shall be eligible for any shore duty which they may individually be compe- tent to perform; but for any shore duty compati- ble with their rank and grade. It is not the competency of the particular officer to perform certain duties, but the compatibility of those duties with the grade of naval constructor that governs. Military duties, such as are required of the commandant of a navy yard and his aid or executive, are not compatible with the grade of naval constructor, even though there may be found in that grade some officer who by special training or experience might be individually competent to perform such duties. (File 5038- 20:1, Jan. 18, 1915.) Construction officer can not be comman- dant of navy yard. — Section 1542, Revised Statutes, provides that the commandants of the several navy yards are to be officers of the line; that is, they are to be "officers not below the grade of commander," which grade exists only in the line of the Navy. In conformity with this law, line officers have from time imme- morial been selected for duty as commandants of navy yards. The duties of commandant have thus become part of the duties of the line. The Navy Regulations provide that, in the absence of the commandant, "the line officer next in rank," if not restricted to special duty, shall become the acting commandant. The words in the act of June 30, 1914, "compatible with their rank and grade," which Congress wrote into the law evidently for some purpose, would be rendered meaningless if naval con- structors could nevertheless be assigned to duty which, from its very nature, as well as in ac- cordance with military usage and specific pro- visions of law and regulations, belongs exclu- sively to other grades. Any argument which 54641°— 22- -33 507 Sec. 1404. PL 2. REVISED STATUTES. The Navy. might be advanced to show that it is compatible with the grade of naval constructor to perform the duties of commandant, might be urged with equal force to show that it is compatiDle with said grade to perform the duties of the pay corps, medical corps, professors of mathematics, chaplains, or civil engineers. The duties per- formed by the different grades in the Navy are well understood, are defined by regulations, orders, and customs of the service, as well as by law in some cases. It must be presumed that Congress in enacting the act of 1914 legislated with reference to the duties of the various grades as they then existed, and if it had in- tended that naval constructors could be as- signed to duties belonging to other grades, it would have omitted the restriction expressed by the phrase "compatible with their rank and grade." These words were put into the law as a limitation upon the Secretary's authority; they must be given effect; and they exclude assignment of naval constructors to duty in command of a navy yard. (File 5038-20:1, Jan. 18, 191.5.) Construction oflB.cer can not be aid or executive of comniandant or succeed to command. — Section 1469, Revised Statutes, which limits details as aid or executive of com- mandants at naval stations to officers of the line, is not repealed or modified by the act of June 30, 1914, which authorizes the assignment of construction officers to duties "compatible with their rank and grade." (File 5038-20:1, Jan. 18, 1915.) A naval constructor can not under the law be assigned to duty as aid or executive to the com- mandant of a naval station, nor succeed to command of a naval station in the absence of the commandant. (File 5038-20:1, Jan. 18, 1915.) The duties of aid to a commandant may be compatible with the rank of a construction officer, but are not compatible with his grade. All commissioned officers of the Navy, both of the line and staff, have rank, and therefore, if rank only were considered, there would be nothing incompatible in ordering a naval con- structor to perform any duty which might be assigned to any officer of corresponding rank in the line or in any staff corps. Grade and not rank is the distinguishing characteristic by which the duties of commissioned officers are known and defined. A naval constructor may have the rank of commander; so also may a medical officer in command of a naval hospital. Therefore it would not be incompatible with the rank of a naval constructor to command a naval hospital, but certainly it would be in- compatible with his grade to perform such duty. Similarly with reference to officers of the line; regardless of rank, the military duties per- formed by such officers are as incompatible with the grade of naval constructor as are the duties of a medical officer in command of a naval hospital. A naval constructor assigned to duty as aid or executive to the commandant would, in so acting, perform duties of a purely military character, duties which have always been limited to the line, duties of so important a character that the law itself says they shall be performed not only by "a line officer," but "when not impracticable" by the line officer "next in rank" to the commandant; duties which are wholly foreign to the grade of naval constructor, which are not embraced in a naval constructor's special training and experience, and which are as incompatible with the grade of naval constructor as are the duties of that grade incompatible with the grade of a line officer. (File 5038-20:1, Jan. 18, 1915. As to distinction between "rank" and "grade" see generally, notes to sees. 1362 and 1457, R. S.) Construction oflBLcer can not be assigned duties belonging to other grades, either in line or staflf. — Staff officers presumably know something about the duties performed by line officers, and line officers know something about the duties performed by staff officers; but these officers are all specially trained in the duties pertaining to their respective grades, and these are the duties which they are sup- posed to be fitted to perform. A line officer might individually know something about the treatment prescribeel by medical officers for cer- tain ailments, but the law does not contemplate that he should be intrusted with the respon- sibility of treating such ailments. Similarly the law does not contemplate that a medical officer or naval constructor shoukl be intrusted with the responsibility of discharging the duties for which line officers have been apecially trained and equipped. Congress, in deliberately and specifically limiting the duties of construction officers to such as are "compatible' ' with their "grade" diel not intend that they should be assigneel to duties belonging to other grades, either in the line or staff. (File 5038-20:1, Jan. 18, 1915.) Construction officers may exercise com- mand in the line or other staff corps inci- dent to performance of their duties. — The act of June 30, 1914, limits the detail of officers of the construction corps in accorelance ^vith its provisions, to "shore duty" and to such shore duty as is "compatible with their rank and grade." The intention of this law was evidently to enlarge the power of the Secre- tary of the Navy in assigning construction officers to duty, but at the same time to pro- hibit their assignment to duty of a wholly different character from that which they had customarily performed. The only effect of the statute was to remove any disability which had previously stood in the way of assigning construction officers to duties pertaining to their grade. This disability was found in the law prohibiting staff officers from exercising command in the line or in other staff corps [sec. 1488, R. S., as amended bv act Mar. 3, 1899, sec. 7, 30 Stat., 1006]. A clause in the naval appropriation act of June 24, 1910 (36 Stat., 614), partially removed this disability, but was restricted in its scope, limiting the detail of line officers under staff officers to the manufacturing and repair departments of navy yards and naval stations. It had the same effect as if it had specifically stated that line officers may not be detailed for duty under staff officers except in the manufactur- ing and rt^pair elepartmeuts of the navy yards and naval stations. The act of 1914 is broader, and construction officers may, by its authority, be detailed to any shore duty "compatible with their rank aiid grade," notwithstanding 508 The Navy. PL 2. REVISED STATUTES. Sec. 1405. that they are thereby placed in command of cers to duty properly embraced by their grade, line officers or officers of other staff corps. where the performance of euch duty might (File 5038-20:1, Jan. 18, 1915.) involve the exercise of command in the Une The only effect of said act of June 30, 1914, or other staff corps. (File 5038-20:1, Jan. 18, is to remove the obstacle which theretofore 1915.) prevented the assignment of construction offi- Sec. 1405. [ Warrant officers; number and appointment of.] The President may appoint for the vessels in actual service as many boatswains, gunners, sailmakers, and carpenters as may, in bis opinion, be necessary and proper. — (21 Apr., 1806, c. 35, s. 3, v. 2, p. 390. 4 Aug., 1842, c. 121, s. 1, v. 5, p. 500. 3 Mar., 1847, c. 48, s. 1, v. 9, p. 172.) Acting appointments as warrant officers. See note to section 1410, Revised Statutes. Appointments from enlisted men provided for by sections 1407 and 1417, Revised Statutes. Duties of warrant officers. See sections 1416 and 1438, Revised Statutes. Pay of warrant officers. See section 1556, Revised Statutes. Rank of warrant officers. See section 1491, Revised Statutes. Temporary appointments as warrant officers of the Navy may be made by the Secretary of the Navy. (Act May 22,' 1917, sec. 5, 40 Stat., 85, as amended by act July 1, 1918, 40 Stat., 716.) Sailmakers. — So much of this section as provides for the appointme nt of sailmakers has become obsolete, there being no officer in that grade now in the Navy, and no such appoint- ments having been made since May 4, 1888. (See Annual Navy Registers.) The Navy Reg- ister of 1917 (pp. 158, 159) shows one officer serving in the grade of chief sailmaker. (See note below as to the promotion of war- rant officers.) "The sailmaker was, as in the British service, to report the condition of the sails to the boat- swain. He has at the present day ceased, for obvious reasons, to have importance in the Navy." (22 Op. Atty. Gen., 620.) Machinists. — The appointment of 100 war- rant machinists was authorized by the Navy personnel act of March 3, 1899, section 14 (30 Stat., 1007). The appointment of 50 addi- tional warrant machinists was authorized by act of March 3, 1901 (31 Stat., 1108); and pro- vision for the appointment of as many warrant machinists "as the President may from time to time deem necessary to appoint, not to exceed twenty in any one year," was made by act of April 27, 1904 (33 Stat., 324), repeated in the naval appropriation act for each subsequent year until the act of August 29, 1916 (39 Stat., o75), when the limitation upon the number to be appointed in any one year was omitted. The title of ' ' warrant machinist " was changed to " machinist " by actof March3, 1909(35Stat., 771). Pharmacists. — The appointment by the Secretary of the Navy of 25 pharmacists in the Hospital Corps of the Navy, "with the rank, pay, and privileges of warrant officers, remov- able in the discretion of the Secretary," was authorized by act of June 17, 1898, section 1 (30 Stat., 474). By section 4 of the same act (30 Stat., 475), it was provided that "all benefits derived from existing laws, or that may here- after be allowed by law, to other warrant offi- cers or enlisted men in the Navy shall be allowed in the same manner to the warrant offi- cers or enlisted men in the Hospital Corps of the Navy." By act of August 29, 1916 (39 Stat., 572), the President was authorized to appoint "as many pharmacists as may be deemed necessary," who "shall have the same rank, pay, and allowances as are now or may hereafter be allowed other warrant officers." Pay clerks. — A grade of warrant officers designated as pay clerks was established by act of March 3, 1915"(38 Stat., 942), appointments thereto being regularly made by promotion from the grade of acting pay clerk; and it was provided "that pay clerks and acting pay clerks shall have the same pay, allowances, and other benefits as are now or may hereafter be allowed other warrant officers and acting warrant offi- cers, respectively." The total number of pay clerks was not spe- cifically fixed, but the act above cited provided that the total number of chief pay clerks, pay clerks, and acting pay clerks shall not exceed one for each 250 enlisted men allowed by law in the Navy. Clerks to assistant paymasters in the Marine Corps are not warrant oflB.cers. — The provision of the act of March 3, 1915 (38 Stat., 942), in regard to warranting pay clerks of the Navy, is not sufficiently broad to include clerks to assistant paymasters in the Marine Corps. The fact that the grades of warrant offi- cers, at the time of the statute's enactment, existed exclusively in the Navy proper, and that there were no warrant officers designated as such by law in the Marine Corps, strongly accentuates the view that the Marine Corps was not in contemplation of Congress when this legislation was enacted. It is clear that Con- gress did not intend its legislation with refer- ence to clerks to pay officers in the Navy to apply to clerks to assistant paymasters in the Marine Corps, but on the contrary intended that the pay, allowances, and other benefits allowed the latter class of clerks should be the same as in the Army. (File 5460-81, May 12, 1916. By act July 1, 1918 (40 Stat., 735), the title of clerks for assistant paymasters in the Marine Corps was changed to "pay clerk," and it was provided that pay clerks "shall hereafter receive the same pay, allowances, and other benefits now pro"\dded by law for clerks for assistant paymasters.") The warrant grades of marine gunner and quartermaster clerk were established 509 Sec. 1406. PL 2. REVISED STATUTES. The Navy. by the act of August 29, 1916 (39 Stat., 611), which provided that officers in said grades "ehall nave the rank and receive the pay, allowances, and pri\ilege8 of retirement of Avarrant «)llicors in the Na\'y." Mates are not warrant officers. — See note to section 1408, Revised Statutes. Promotion of warrant officers. — Boat- swains, gunners, carpenters, and sailniakers were, after ten years from date of warrant, to be commissioned as chief boatswains, chief gunners, chief carpenters, and chief sail- makers, to rank with but after ensign, by act of March 3, 1899, section 12 (30 Stat., 1007). This provision was amended by act of April 27, 1904 (33 Stat., 346), providing for the promo- tion of the officers mentioned after six years from date of warrant, instead of ten years, as theretofore. Machinists are, after six years from dateof warrant, to be commissioned as chief machin- ists. (Act Mar. 3, 1909, 35 Stat., 771.) Pharmacists were, after six years from date of warrant, to be commissioned as chief phar- macists, by a provision in the act of August 22, 1912 (37 Stat., 345). Under that pro- vision it was held that the total number of pharmacists and chief pharmacists was limited to 25, that being the maximum number fixed by previous law for the grade of pharmacist, and the provision for the promotion of phar- macists not being intended to increase the total number of officers in the Navy. (File 27213-3, May 6, 1913; 27218-4, Dec. 5, 1913.) Prior to the act of August 22, 1912, the com- missioning of pharmacists as chief pharmacists was not authorized, as sections one and four of the act approved June 17, 1898 (noted above under "Pharmacists"), did not have that effect. (File 27213, Apr. 24, 1909.) By act of August 29, 1916 (39 Stat., 572, 573), it was provided that "pharmacists shall, after six years from the date of warrant, be com- missioned chief pharmacists after passing satis- factorily Buch examinations as the Secretary of the Navy may prescribe, and shall, when so commissioned, have the same rank, pay, and allowances as now or may hereafter be allowed other commissioned warrant officers"; and the restriction upon the number of phar- macists and chief pharmacists was removed. Pay clerks are, _ after six years' service as such, to be commissioned as chief pay clerks. (Act Mar. 3, 1915, 38 Stat., 942.) By act of May 22, 1917 (40 Stat., 84), as amended bjr act of July 1, 1918 (40 Stat., 716), temporarily increasing the number of officers and enlisted men of the Navy and Marine Corps, it was provided (sec. 5) that "the additional temporary officers authorized in the various grades and ranks of the Navy and Marine Corps in accordance with the next preceding section may be temporarily appointed to serve in the grades or ranks to whicn appointed or promoted * * * by temporary appointment of * * * warrant officers * * * of the Navy, and warrant officers * * * of the Marine Corps." By act of Jime 4, 1920 (41 Stat., 834, 835), provision was made for the issuance of perma- nent commissions and warrants to officers who served temporarily in commissioned and war- rant grades during the World War. Commissioned warrant officers on the actiA-e list Avith creditable records shall, after six years from date of commission, receive the pay and allowances of a lieutenant (junior grade); and after twelve years from date of commission the pay and allowances of a lieutenant. (Act Aug. 29, 1916, 39 Stat., 578.) Ensigfns and assistant paymasters ap- pointed from warrant officers. — The ap- pointment annually of not more than six ensigns from among the boatswains, gunners, or rnachinists, having not less than six years' service as warrant officers, was authorized by act of March 3, 1901 (31 Stat., 1129). This pro- vision was amended by act of March 3, 1903 (32 Stat., 1197), providing that 12 ensigns may be so appointed annually instead of 6. It was further amended by act of April 27, 1904 (33 Stat., 346), providing that such appoint- ments may be made from among boatswains, gunners, and machinists having four years' service as warrant officers, instead of six years as previously required. It was again amended by act of March 3, 1909 (35 Stat., 771), which provided that chief boatswains, chief gunners, and chief machinists should be eligible for appointment as ensigns under ttie same restric- tions as imposed by law upon the appointment of boatswains, gunners, and machinists to that grade. The law does not require that warrant officers who qualify for ensign be commissioned as of July 30 of each year. By act of March 3, 1901 (31 Stat., 1129), it was provided that ' 'whenever in view of the vacancies in the grade of ensign on July tliirtieth of any year unfilled by graduates of the Naval Academy, the Secretary of the Navy shall so recommend, the President may appoint to that grade, as of July thirtieth, from among the boatswains, gunners, or warrant machinists, not exceeding six in any one calendar year." The same act contained re- strictions concerning the qualifications of warrant officers eligible for such appointment as ensign. At the time this law was enacted the grades of lieutenant (junior grade) and ensign were limited by law. However, by act of March 3, 1903 (32 Stat., 1197), the appointment was authorized of such total numbers of lieuten- ants (jiinior grade) and ensigns as may be quali- fied for said grades under existing law, there- by making said grades unlimited in number. In the same act it was provided that "hereafter, in each calendar year there may, under the restrictions imposed by existing law, be ap- pointed from the boatswains, gunners, and warrant machinists of the Navy, twelve en- signs." This act amended the prior law in so far as same authorized appointments of ensigns from warrant officers to be made only in the case of vacancies existing in the grade of ensign on July 30 of each year and required that such appointments be made as of July 30. Accordingly, since the act of 1903, it has not been required that the appointments of en- signs from warrant officers be made as of July 30, but same were authorized to be made at any time "in each calendar year," subject to the limitation upon the number to be so appointed. (File 28687-i, Sept. 16, 1916.) The act of April 27, 1904 (33 Stat., 346), provided "that subject to the restrictions 610 The Navy. Pt. 2. REVISED STATUTES. Sec. 1405. imposed by existing law, boatswains, gunners, and warrant machinists shall be eligible for appointment to the grade of ensign after four years' service as warrant officers." Under the act of August 29, 1916 (39 Stat, 577) [which limited the number of officers in the various grades and ranks of the Navy, including the lowest grades of the line, in accordance with computations to be made by the Secretary of the Navy on January 1 and July 1 of each year, and provided that the numbers in each grade and rank resulting from such computations should not be varied between said dates], warrant officers qualifjnng for the grade of ensign should be commissioned in such grade on January 1 or July 1 of each year, and can not be commissioned between said dates except to fill vacancies occurring in the authorized number of ofiicers in the grades of lieutenant (junior grade) and ensign, computed in accord- ance with the act of August 29, 1916. (File 28687-4, Sept. 16, 1916.) The act of May 22, 1917, section 6 (40 Stat., 86), authorizing computations to be made "during the period of the present war," at such times other than January 1 and July 1 as the Secretary of the Navy "may deem nec&ssary," suspends temporarily the restriction contained in the act of August 29, 1916, upon varying the number of officers between specified dates. The result is that additional appointments of commissioned officers in the lowest grades, line and staff, may be made at any time that eligibles become available. Such additional appointments may be made permanently where vacancies exist in the permanent service, and eligibles are available for permanent appoint- ment, or may be made temporarily to fill any existing deficiency therein until eligibles are available for regular appointment in accordance with existing law. (File 28687-22, June 14, 1917. By act of July 11, 1919 (41 Stat., 139), permanent provision was made for computa- tions by the Secretary of the Navy at least once each year and at such times as the Secre- tary may direct.) Chief pay clerks and pay clerks between the ages of 21 and 35 years are eligible for appoint- ment as assistant paymasters, but shall not have any preference for such appointment except as to this modification of the limitations fixed by section 1379, Revised Statutes, as to the ages of appointees. (Act Mar. 3, 1915, 38 Stat., 943.) As to temporary appointment of warrant officers to commissioned rank, see act of May 22, 1917, as amended by act of July 1, 1918, noted above, under "Promotion of warrant officers." Warrant oflB.cers belonging to line and stafif of Navy. — See note to section 1362, Revised Statutes. Appointments by President and Secre- tary of the Navy. — See note to Constitution, Article II, section 2, clause 2, under "II. Con- stitutional power of appointment." Section 1405 authorizes the President to appoint as many boatswains, gunners, sail- makers, and carpenters as may in his opinion be necessary and proper. The consent of the Senate not having been required by Congress, euch consent is unnecessary, and the President may make such appointments without sub- mitting the same to the Senate for confirmation. (22 Op. Atty. Gen., 82; see also 23 Op. Atty. Gen., 136.) By act of May 22, 1917, section 5 (40 Stat., 85), as amended by act of July 1, 1918 (40 Stat., 716), temporary appointments as warrant offi- cers were authorized to be made by the Secre- tary of the Navy. Warrant officers not commissioned of- ficers. — Warrant officers designated as boat- swains, gunners, carpenters, and sailmakers are appointed under authority of section 1405, Revised Statutes, and in addition thereto Congress has from time to time authorized the appointment of other warrant officers in the Navy. Such officers have always been re- garded as a separate and distinct class from commissioned officers, whose appointments in the Regular Navy are evidenced by commis- sions signed by the President and under the seal of the United States. Accordingly, held that a warrant officer is not a commissioned officer within the meaning of the provision in the Navy personnel act of March 3, 1899, section 13 (30 Stat., 1007), that certain commissioned officers of the Navy shall receive the same pay and allowances as are provided for officers of the Army. (6 Comp. Dec, 495.) "Warrant" and "commission," outside of naval technicality, are synonymous words. There is no difference in form between a com- mission and a warrant as used in the Navy, except that one recites that the appointment is made "by and with the advice and consent of the Senate," and the other does not. (28 Op. Atty. Gen., 325; quoting Brown v. U. S., 18 Ct. Cls., 537, 543.) Within the meaning of Articles II, III, and IV of the War Risk Insurance Act, unless the context otherwise requires, "the term 'com- missioned officer' includes a warrant officer." (Act Oct. 6, 1917, 40 Stat., 401.) See note to section 1408, Revised Statutes, under "Mates are not warrant officers." Retirement of warrant officers. — See note to section 1448, Revised Statutes. The laws relating to the retirement of officers of the Navy ha\ing been uniformly held by the officers charged with their execution to be applicable to warrant as well as commissioned officers, such holding is sustained, although it must be conceded that were the question a new one the true construction of the law would be open to doubt. (Brown v. U. S., 113 U. S., 568.) A mate who served during the Civil War was not entitled to retirement with higher rank and pay as allowed by law to officers of the Navy na\ing such service, because he was not one of the mates to whom Congress had granted the benefit of the retirement laws relating to war- rant officers. (See note to sec. 1408, R. S.) If appointed a boatswain, this mate would be en- titled, on account of his Civil War service, to retirement with the rank and retired pay of a chief boatswain six months after such appoint- ment. Held, that he may validly waive his right to retirement as chief boatswain, in con- sideration of his appointment as boatswain and retirement with that rank. (File 3031-57, July 31, 1908, case of Thomas G. McDonough, 511 Sec. 140' Pt.2. REVISED STATUTES. The Navy. app<>inteerly chargeable with such items, as had theretofore been the practice, and not to change the purposes for which the appropria- tion "Pay of the Navy" could be properly used. (3 Comp. Dec, 736.) Medal is personal property of man to whom awarded. — A medal of honor is the per- sonal property of the man to whom awarded, and the na\ai authorities can not prevent him from wearing same after his discharge for bad conduct or undesirability, and when he ia not under naval jurisdiction. Buttons, cap orna- ments, figures, letters, and chevrons, etc, are part of a marine's uniform, furnished to him under a clothing allowance, and may properly be removed and retained when he is so dis- charged ; but medals of honor, campaign badges, and insignia received because of past meri- torious services do not come under the same category. (File 26519-3:1, Dec. 19, 1914, and Jan. 13, 1915; see also 25 Op. Atty. Gen., 529, and act June 3, 1916, sec. 125, 39 Stat., 216, forbidding unauthorized wearing of \mi- form.) Withholding medal after award but prior to deUvery. — By desertion, an enlisted man forfeits his right to pay and allowances earned but not received, and the term "allowances," as defined in United States v. Landers (92 U. S., 77), includes medals of honor, good con- duct medals, and campaign badges. Accord- ingly, medals of honor, awarded but not de- livered, should be refused in cases of men who have subsequently deserted during the enlist- ment in which the award was made, even though they were not tried therefor by court- martial and dishonorably discharged. How- ever, if the desertion occurs in a subsequent enlistment, the man does not thereby forfeit any medal or badge earned but not delivered in a previous enlistment. (File 26519-3, Dec. 1, 1914.) "If the man is not a deserter, but his service for other reasons has not been honorable, he must, nevertheless, be given any medal of honor to which he would otherwise be entitled, his right thereto being absolute under the law." (File 26519-3, Dec. 1, 1914.) Whether section 1407 has been re- pealed as to medals. — \\Tiile the act of February 4, 1919 (40 Stat., 1056) authorizing the presentation of medals of honor, etc., to persons in the naval service does not expressly repeal the provisions of section 1407, Revised Statutes, as enlarged by the act of March 3, 1901 (31 Stat., 1099), yet as the scope of the later legislation indicates that Congress was dealing ^\'ith the entire subject involved, the subsequent provision is to be regarded as a complete substitute for the earlier law. (26 Comp. Dec, 464; but see file 9644-489.) Sec. 1408. [Mates; rating of enlisted men as.] Mates may be rated, under authority of tlie Secretary of the Navy, from seamen and ordinary seamen who have enlisted in the naval service for not less than two years. — (17 May, 1864, c. 89, s. 3, v. 13, p. 79. 3 Mar., 1865, c. 124, s. 3, v. 13, p. 539.) 515 Sec. 1408. Pt.2. REVISED STATUTES. The Navy. Mates of steam vessels licensed under Title LI I of the Revised Statute's shall be subject to draft in time of war, only for the perform- ance of duties such as rerjiured by their license, and while performing; such dutieo in the service of the United States shall be entitled to the highest rate of wages paid in the Merchant Marine of the United States for similar services; and if killed or wound- ed while performing such duties imder the United States, they or their heirs, or their legal representatives shall be entitled to all the privileges accorded to soldiers and sailors serving in the Army and Navy, un- der the pension laws of the United States. (Act May 28, 1896, sec. 2, 29 Stat., 188, which relates also to licensed masters, pilots, and engineers.) Pay of mates who were serving as such on Au- gust 1, 1894, was fixed by act of that date (28 Stat., 212); the pay of other mates was fixed by section 1556, Revised Statutes. The pay of all mates was increased 25 per cent by act May 13, 1908 (35 Stat., 128). (See below, "Pay and allowances of mates.") Retirement of mates who were serving as such on August 1, 1894, was provided for bv act of that date (28 Stat., 212). As to re- tirement of other mates, see act March 3, 1899, section 17 (30 Stat., 1008), relating to the retirement of enlisted men and ap- pointed petty officers, and amendments to said act; see also cases noted below. Term of enlistment in the Navy, see note to section 1418, Revised Statutes. Historical note. — From the year 1799 master's mates in the U. S. Navy were warrant officers, except when acting under temporary and probationary appointments. Warrants were issued to them after at least one year's sea ser\dce under a probationary appoint- ment. No such warrants were, however, issued after 1843, and in 1847 a regulation of the Navy Department forbade commanding ofiicers to make such probationary appointments. (U. S. V. Fuller, 160 U. S., 593.) On October 7, 18G3, the Secretary of the Na\'y issued the following circular: "Seamen enlisted in the naval servdce may hereafter, as formerly, be advanced to the rating of master's mate, and such rating may be bestowed by the commander of a squadron, subject to the ap- proval of the department, or by the commander of a vessel, with the previous sanction of the department. Seamen so rated will be entitled to the same pay, rank, and pri\'ileges as ap- pointed or warranted master's mates, but vdll not be released by their rating from the obliga- tions of their enlistment, and may be disrated by the order or with the sanction of the depart- ment. They will not, while rated as master's mates, be considered as subject to trial by a summary court-martial, nor be disrated by transfer, as in the case of petty officers. Sea- men rated as master's mates will not be dis- charged with that rating, and will be con- sidered as disrated to seamen upon the expira- tion of their enlistment, but upon their imme- diate reenlistment the rating of master's mate may be considered as renewed. The accept- ance of such renewed rating will be considered as renunciation of anv claim to additional pay for reenlistment. All ratings of master's mates made by order of the commander of a sfjuadron, and all such ratings renewed by reenlistment, will be reported to the department as early as practicable." (U. S. r. Fuller, 160 U. S., 593.) Prior to 1843, "masters mates" were recog- nized by the law as warrant officers, or as "war- ranted master's mates," and appear to have been sometimes appointed by the President and sometimes rated (that is, promoted from lower grades) by commanding officers. But shortly after this time they seem to have fallen into disuse, and no further appointments were made, although the grade was not formally abolished and those who had been previously appointed continued to hold their offices and receive their pay. At the outbreak of the civil war, however, a great increase in all the naval forces became necessary, and the Secretary of the Navy made temporary appointments of "acting masters and master's mates," which were confirmed by act of Congress of July 24, 1861, c. 13, 12 Stat., 272. By act of March 3, 1865, c. 124, 13 Stat., 539, their names were changed to that of "mates," and the Secretary of the Navy was authorized to increase their pay and to rate them from seamen and ordinary seamen who had enlisted in the naval sei-vice for not less than two years. By the act of Julv 15, 1870, c. 294, 16 Stat., 321, 330, they were formally recognized as a part of the naval forces and their pay was fixed at S900 when at sea, $700 on shore duty, and $500 on leave or waiting orders. These amounts were raised in 1894, 28 Stat., 212. Act of August 1, c. 176. (U. S. v. Fuller, 160 U. S., 593.) The act of March 3, 1865 (13 Stat., 539, sec. 2), provided as follows: "That acting masters' mates shall be styled mates, and the Secretary of the Navy is hereby authorized to increase their pay to the sum of not exceeding sixty dollars per month." (9 Comp. Dec, 600.) The appointment of mates as at present designated was first authorized by Congress in the acts of May 17, 1864, and March 3, 1865 (13 Stat., 79, 539), now embodied in the Revised Statutes, section 1408. The quota was not fixed, but from a maximum of about 842 on January 1, 1865, the number gradually dimin- ished until July 1, 1894, when there were 27 remaining, the majority of whom had had servdce during the civil war. Prior to August 1, 1894, there had been no authority for the retirement of mates, but on that date a law was passed increasing the pay of mates then in the service and providing that said mates should have the benefits of retirement the same as warrant officers. (File 3031-40, Mar. 11, 1908.) One purpose of the act of August 1, 1894 (28 Stat., 212), was, by increasing the rates of pay for active service, to make the retired pay of mates large enough to induce the retirement of these officers, which was also provided for in this act. At the time of the enactment of this legislation, it was the intention to allow the grade of mate to gradually go into abeyance, but it now appears to be the purpose of the naval authorities to revive it, which may be done under the authority conferred by section 1408 of the Revised Statutes. (4 Comp. Dec, 124. See also file 26255-14, May 4, 1909, quot- 516 The Navy. PL 2. REVISED STATUTES. Sec. 1408. ing debates in Congress upon act of Aug. 1, 1894, to the effect that after retirement of mates then in the ser\'it'e no further apjjointments were to be made to that grade.) Mates are enlisted men and should be discharged upon expiration of enlist- ment. — The contract of an enlisted man is a contract to serve the Government in that capac- ity for a period specified. In this case, upon the expiration of the mate 's term of enlistment, his contract was performed and was no longer a bar to his discharge by the Government. Strictly in this case the mates should have been given their discharges on the expiration of their enlistments. (26 Op. Atty. Gen., 319.) "Mates in the Navy should be discharged from the service on the expiration of their en- listments." (File 3031-16, Aug. 15, 1907.) "I do not agree with the Attorney General that strictly mates should be discharged on the expiration of their enlistments, as section 1409, supra, clearly contemplates that no further en- listment after their rating as mates is necessary for their continuance in the service as mates. Of course they may be discharged at any time, and the Secretary of the Navy, upon the sug- gestion contained in the Attorney General's opinion, has ordered the discharge of mates and has directed that they may reenlist in the rating of mate, thus establishing a new prac- tice." (14 Comp. Dec, 457; compare Navy Department circular of Oct. 7, 1863, quoted above, under "Historical Note.") Mates are enlisted men who are rated by the Secretary of the Navy, and such rating does not discharge them from their enlistment. They may be reenlisted and discharged the same as other enlisted men. (File 3031-57, June 25, 1908; file 7657-445, June 21, 1917.) Status of mates when not discharged upon expiration of enlistment. — An en- listed man in the Navy who was appointed as mate and continued to serve as such after the expiration of his term of enlistment without receiving a discharge is still in the service and entitled to his discharge and may be permitted to reenlist with the benefits of continuous serv- ice. (26 Op. Atty. Gen., 319.) As far as concerns any question here, the contract of an enlisted man differs in no respect from a contract by one individual to serve another during a specified period. In either case, if the man continues to perform the serv- ice until the end of the period specified, and if the other party has also performed, the contract is at an end. Under such circumstances an enlisted man could not require the Govern- ment to retain him in the service, nor would the Government ordinarily compel him to remain. This does not refer to those special circumstances, such as absence from the United States, etc., which might exceptionally affect this general statement. But in this case, as in a case of a contract between individuals, if neither party desires to terminate the service, but it continues without any express contract, it will be held to be a continuance of the service upon the same terms as before, but not for any defimte period. That the mates in this case were not discharged upon expiration of their enlistments was due to the Government, which is estopped to say that these men are not in the service as before. Being in the service and their terms of enlistment having expired, they are, of course, entitled to be discharged; and where they have rendered the continuous serv- ice required by the regulations, may be per- mitted to reenlist with the benefits thereof. (26 Op. Atty. Gen., 319.) Where a mate was not discharged from the service on the expiration of his enlistment, in accordance with the Navy Department's in- structions of August 15, 1907, he should be given a discharge to take effect from the date on which issued. (File 3031-19, Oct. 25, 1907.) A mate of the Navy who was not discharged at the expiration of the term of his enlistment continues to be an enlisted man so long as he holds the position or rating of mate. (14 Comp. Dec, 457, loUowing 26 Op. Atty. Gen., 319.) Mates are not "officers of the Navy." — The act of June 30, 1876, section 1 (19 Stat., 65), provided that "officers of the Navy" should be allowed mileage while traveling on public business. Mates being rated by the Secretary of the Navy "from seamen and ordi- nary seamen who have enlisted in the naval service for not less than two years" (sec. 1408, R. S), and not being otherwise appointed, can not be classed as officers within the meaning given thereto by the court in the case of U. S. V. Mouat, 124 U. S., 303, 307 [noted under Con- stitution, Art. II, sec. 2, clause 2, "I. Officers of the United States " j. In the act of 1876 Con- gress is presumed to have used the word in the sense in which "officers" has been defined; and there being no language in the act con- veying a different sense, the court must give it the meaning the word unequivocally imports. Held, therefore, that claimant, a mate, was not an officer within the meaning of the law; that he was not appointed by the President or by a court of law, and that the action of the Secre- tary of the Navy in rating or promoting him from seaman, as pro\"ided in section 1408, was not sufficient action on the part of the Secretary as head of the Navy Department to constitute him an appointed officer, nor even an officer within the meaning of the mUeage act. (Bax- ter i;. U. S., 32 Ct. Cls., 75.) The rating of an enlisted man of the Navy as mate is not an appointment by the Secretary of the Navy. He remains in the service all the time, and this rating is in effect but an order which he must obey after being rated. The question of acceptance does not, therefore, arise, because he has no choice whether he will or will not accept the rating and perform the duties. (13 Comp. Dec, 514.) For other cases, see note to Constitution, Article II, section 2, clause 2, under "I. Officers of the United States," and see below, "Mates are 'officers of the Navy' for certain purposes." Mates are not warrant officers.— The personnel of the Navy is divided, generally, into commissioned officers, noncommissioned or warrant officers, petty officers, and seamen of various grades and denominations. That a mate is not a commissioned officer is entirely clear; it is equally clear that he is above the grade of seaman, and the real question is whether he is a noncommissioned or warrant officer, a person "temporarily appointed to the 517 Sec. 1408. Pt.2. REVISED STATUTES. The Navy. duties of a commissioned or warrant officer" or a "petty officer." (U. S. v. Fuller, 160 U. S., 593.) Mates are not warrant officers. The act of August 1, 1894, providing that "the law regu- lating the retirement of warrant officers in the Navy shall be construed to apply to the twenty- eight officers now serving as mates in the Navy " "would be quite unnecessary if, under the gen- eral provisions of law, they fell within the designation of warrant officers." (U. S. v. Fuller, 160 U. S., 593.) The argument that a ' 'warrant' ' is defined to be "an instrument conferring authority upon persons, inferior to a commission," and that mates must therefore be warrant officers, because they are appointed by the Secretary of the Navy, proves too much, since all petty officers hold some sort of designation from a superior authority; and if a warrant be an in- strument inferior to a commission, this would make all petty officers warrant officers. On the other hand, as by section 1405 warrant officers are appointed by the President, it would seem to follow that if they held their appointments from an inferior authority they were not to be considered as warrant officers. After some hesitation and apparent confusion of opinion on the part of the Navy Department, this was the construction of the Revised Stat- utes finally settled upon by the Navy Regula- tions of 1893, article 28, and we think it is cor- rect. The only difficulty in the case seems to have arisen from certain acts prior to the Re- vised Statutes, notably the act of 1813, which dealt with warranted "master's mates," under which mates continued to be classified by the Navy Department as warrant officers until the Re\dsed Statutes were adopted. (U. S. v. Fuller, 160 U. S., 593. See also note to sec. 1405, R. S., under "Warrant officers not com- missioned officers.") Mates retired with the rank and pay of war- rant officer, in accordance with the Attorney General's opinion, on account of Civil War service, do not obtain the grade of warrant officers, but continue to be mates and should be eo designated. The Navy Department can not, therefore, confer upon them the title of a grade of warrant officers to which they do not belong. (File 3031-28, Dec. 12, 1907.) Mates are not "temporarily appointed to the duties of a commissioned or -war- rant oflB.cer." — We think there is no authority for saying that they are ternj:)orarily appointed to the duties of a warrant officer within the ex- ception to section 1410, Revised Statutes. WTiile the words "acting master's mates," sometimes employed prior to the Revised Statutes, might indicate, by the use of the word "acting," a person temporarily appointed to the duties of a master's mate, officers who are recognized by law and whose pay is fixed by a permanent statute can not be said to be tem- porarily appointed. (U. S. v. Fuller, 160 U. S., 593.) Mates are " petty officers." — Mates are petty officers, and as such are entitled to rations or commutation therefor, under sec- tions 1579 and 1585, Revised Statutes. (U. S. V. Fuller, 160 U. S., 593, afiirming 30 Ct. Cls., 108; see also Baxter v. U. S., 32 Ct. Cls., 108.) Mates had not been regarded as petty officers by the Treasury Department nor by tjfie Navy Department prior to the adoption of the Navy Regulations of 1893. (U. S. v. Fuller, 160 U. S.,593.) Mates are officers not holding commissions or warrants and not entitled to them within the meaning of section 1410, Revised Statutes, and are therefore jietty officers, promoted by the Secretary of the Navy from seamen of inferior grades, who have enlisted for not less than two years, and they are distinguished from other petty officers only in the fact that their pay is fixed by statute instead of by the Presi- dent. The exception of mates from other petty officers, in section 1569, indicates that they are petty officers. (U. S. v. Fuller, 160 U. S., 593.) Mates are "officers of the Navy" for certain purposes. — Mates whose names are borne on the retired list of officers of the Na\^'^, in accordance with the act of August 1, 1894 (28 Stat., 212), are officers of the Navy, but they are neither commissioned nor warrant officers, although with respect to the law regulating retirements, they are placed upon the same footing as warrant officers under the act of June 29, 1906 (34 Stat., 554), providing for advanced rank on retirement of officers who served during the Civil War._ (260p. Atty. Gen., 433.) Although commissioned officers of the Navy are appointed by the President, by and with the advice and consent of the Senate, warrant officers by the President alone, and mates by the head of a department, all are alike officers of the United States, and in accordance with the acts of 1894 and 1906, all are alike entitled to the benefits of the advancement provided for by the last-mentioned act whenever other- wise qualified. (26 Op. Atty. Gen., 433. But see above, "Mates are not 'officers of the Navy.'") Not only is it expressly provided in section 1409 that when an enlisted man becomes a mate, his duties and rights as an enlisted man remain unaffected, but the same provision is made with respect to warrant officers; and if the fact of enlistment should be held a bar to securing the benefits of the act of 1906 in the case of mates, this might be equally true with respect to warrant officers as well. (26 Op. Atty. Gen., 433.) Mates who were in the Navy on August 1, 1894, are officers within the meaning of section 11 of the Navy personnel act of March 3, 1899 (30 Stat., 1007), and of the act of June 29, 1906 (34 Stat., 554), both relating to advanced rank on retirement of officers who served during the Civil War. (26 Op. Atty. Gen., 615.) "For the purposes of retirement certain mates are considered as officers." (File 3031- 28, Dec. 12, 1907.) Article 1-4912 (3\ Naval Instructions, 1913, provides for the witnessing of signatures, and states that "in the case of enlisted men each signature shall be wntnessed by an officer." Article R-4384 (1), Navy Regulations, 1913, requires that pay receipts shall bear "an officer's signature as witness to the genuineness of that of the man," and that "no officer shall witness a receipt unless it be actually signed in his presence and he be personally acquainted 518 The Navy. PL 2. RE VISED STAT UTES . Sec. 1408. with the signer." Held, "as it is not specified that the witnessing officer be of any particular rank, but merely that the signature shall be witnessed by an officer, and as it was decided by the Attorney General (26 Op. Atty. Gen., 433), that a mate is an officer of the Navy, the department sees no objection to the witnessing of the pay receipts of enlisted men by a mate in the Navy." (P'ile 4856-15, June 18, 1913.) In the summary court-martial case of W. J. Stookey, chief commissary steward on the receiving ship at Mare Island, in 1908, Mate G. Johnson was recorder of the court. Accused applied to have the proceedings set aside on the ground that Mate Johnson was not an officer, and that article 27 of the Articles for the Government of the Navy (sec. 1624, R. S.), required an "officer" to act as recorder; that the court-martial was therefore illegal.- The point was decided that Mate Johnson was an officer, and that the court was therefore legal. Accused was discharged pursuant to sentence. (File 26287^7, Aug. 22, 1908; see also file 4856-15, May 14, 1913, letter from captain of the yard, navy yard. Mare Island, Cal.) "Mate Johnson has acted as recorder of sev- eral courts-martial recently, and performed this duty for a long time on the receiving ship, which would seem to establish the point definitely." (File 4856-15, May 14, 1913, letter from captain of the yard, navv yard, Mare Island, Cal.) Article R-4512 (l),_Navy Regulations, 1913, provides that certain "officers," including mates on duty at certain stations or any such "officers" on special duty or on detached service on shore, are entitled to commutation for quarters, etc. Certain mates held to be both " ofi&cers of the Navy " and " enlisted men." — Mates who were in the Navy on August 1, 1894, are officers of the Navy for the purpose of re- tirement, although enlisted men, and entitled as such to discharge upon expiration of en- listment. A person can, under the provisions of sections 1409 and 1410, Revised Statutes, be at the same time an officer of the Navy and an enlisted man. (26 Op. Atty. Gen., 433.) " The status of mates in the Navy is in the highest degree anomalous. — They have been considered as petty officers, ap- pointed from the enlisted force, and regarded as enlisted men. This view has been re- enforced by an opinion of the Attorney General, dated July 22, 1907, in which it is held that a man who was enlisted for service in the Navy for a period of four years and was appointed as mate and continued to serve as such after the expiration of his term of enlistment without receiving any discharge, may have hia appoint- ment as mate revoked and be permitted to reenlist, with the benefit of continuous service. This condition has, however, been complicated by a later opinion, given October 15, 1907, in which the Attorney General holds that certain mates whose names are borne on the retired list of the officers of the Navy, having been placed there in accordance with the statute approved August 1, 1894 (28 Stat., 212), are entitled to advancement in accordance with the provisions of the act of June 29, 1906 (34 Stat., 554), to the lowest grade of warrant officers. Hence, for the purposes of retirement, certain mates are considered as officers * * *. Also, it may be stated that, although mates are considered as enlisted men for the purposes of discharge and reenlistment, yet they are debarred from the benefits of the additional pay allowed other enlisted men for succeeding reenlist me nts. They are usually appointed from chief petty officers having long and creditable records, who may receive a maximum pay of approximately * * *, but upon appointment as mate their pay drops immediately to * * *, notwithstanding the greater responsibilities of the position." (File 3031-32, Feb. 12, 1908.) There are no similar grades in the Army to those of warrant officers and mates. (File 3031- 40, Mar. 11, 1908.) [By act of July 9, 1918 (40 Stat., 881), the grades of master, first mate, second mate, chief engineer, and assistant en- gineer were established in the Army Mine Planter Service of the Coast Artillery Corps of the Regular Army, "who shall be warrant officers ajipointed by and holding their offices at the discretion of the Secretary of War." By act of June 4, 1920 (41 Stat., 761), the ap- pointment was authorized of not more than 1,120 warrant officers, including band leaders.] Retirement of mates -who -were in, the service August 1, 1894. — There was doubt whether the law relating to the retirement of officers of the Navy [sees. 1443-1455, 1588, R. S.], applied to any but commissioned officers, but this doubt was, by the Navy Department, resolved in 'favor of warrant officers, which con- struction was confirmed by the Supreme Court in Brown v. U. S., 113 U. S., 568. However, it was never held to apply to mates; and in order that the 28 officers then serving as mates might have the benefit of its provisions, the act of August 1, 1894 (28 Stat., 212), was passed. This act went no further than merely to extend the provisions of the retirement law to these mates, and had not the effect of promoting them on retirement to the rank and pay of retired warrant officers, but entitled them to be placed on the retired list with the rank of mate and three-fourths the sea pav of that grade. (27 Op. Atty. Gen., 334.) Doubtless "warrant officers" were specially mentioned in the act of August 1, 1894, because they were the only noncommissioned officers to whom the statute had been construed to apply, and it was intended thereby to emphasize the purpose that section 1588, Revised Statutes, was to be just as applicable to these mates as to warrant officers, by entitling them to three- fourths of the pay of their grade, and not to confer upon them on retirement the retired pay of an advanced grade. Furthermore, this act was thus construed by the Navy Department ever since its passage, which fact would be controlling in case of doubt. (27 Op. Atty. Gen., 334.) Prior to the act of August 1, 1894, mates had not enjoyed the privilege of retirement. The "law regulating the retirement of warrant officers," which by the terms of this act was to be construed to apply to certain mates, is con- tained in sections 1443-1455, Revised Statutes. (See Brown v. U. S., 18 Ct. Cls., 537; 113 U. S., 568.) The retired pay of officers of the Navy at the time of the enactment of this law was fixed 519 Sec. 1408. Pt.2. REVISED STATUTES. The Navy. by section 1588 of the Revised Statutes. Were the question a new one, it wouUl still seem phiin that the purpose of the act of 1894 was merely to extend to mates the same privilege of retirement, with three-fourths of their sea pay, that was enjovetl by warrant officers of the Navn^. (Kle 26"255-14, May 4, 1909.) Retii-ement of mates who served during the Civil War. — The mates who were in the service on August 1, 1891, were place% and Marine Corps. The rating of an enlisted man as mate did not discharge him from his enlistment, and the term "enlisted man" in the general sense in which it is used in the above act is broad enough to bring him within its provisions. (18 Comp. Dec, 575.) Mates may be retired after thirty years' serv- ice under the acts of IMarch 3, 1899, section 17 (30 Stat., 1008), and March 2, 1907 (34 Stat., 520 The Navy. Pt.2. REVISED STATUTES. Sec. 1408. 1217); there is no restriction as to age. (File 3031-38, Mar. 6, 1908.) The pro\dsions of the Revised Statutes relat- ing to the retirement of commissioned officers (sees. 1448-1455) have been held to apply to warrant officers; but in order that they might apply to mates who were in the service on August 1, 1894, a special act approved on that date was required. Mates who were not in the service on that date were not as such eli- gible to retirement until the passage of the act of March 3, 1899, section 17 of which provided for the retirement of enlisted men or appointed petty officers after thirty years' service. The manner of computing the 30 years' service was somewhat modified by an act approved June 22, 1906, the pro\T.sions of which are embodied in the act of March 2, 1907 (34 Stat., 1217). The act of 1899 provides specially for the retire- ment of enlisted men and appointed petty officers; the act of 1907, which has been held to apply to mates, refers to enlisted men, with no mention of officers or petty officers. Com- missioned and warrant officers were obviously not entitled to thirty-year retirement by the language of the act of 1899 as modified by the act of 1907, and did not become entitled thereto until the act of May 13, 1908. (File 3031-57, June 25, 1908.) Inasmuch as retirement for enlisted men and appointed petty officers after thirty years' service is covered in prior acts which specific- ally refer to such persons, and as it has already been held that mates are eligible to retirement thereunder, it must be held that the words "an officer of the Navy," in the thirty-year retire- ment clause of the act of May 13, 1908, did not include mates appointed since August 1, 1894. Accordingly held that such mates may be re- tired in conformity with the laws relating to enlisted men, but may not retire as officers under the thirty-year retirement clause in the act of May 13, 1908; and that such mates may not on retirement be given the rank of the next higher grade on account of Civil War service, as provided for officers by the act of June 29, 1906. (File 3031-57, June 25, 1908.) Waiver of retirement privileges. — A mate appointed since August 1, 1894, but who had service as an enlisted man during the Civil War, not being entitled to retirement with the rank of the next higher grade, as authorized by law for commissioned and warrant officers having Civil War ser\ace, may be appointed a boatswain shortly before retirement on con- dition that, in consideration of said appoint- ment and his retirement as boatswain, he waive his right to retirement with the rank of chief boatswain, to which, upon appointment as boatswain, he would legally become entitled on account of his Civil War service. (File 3031-57, July 31, 1908, case of Mate Thomas G. McDonough, appointed a boatswain in the NaA^ Aug. 6, 1908, and retired as boatswain Feb. 6, 1909, upon his own application after 30 years' service. Compare U. S. v. Andrews, 240U. S.,9q.) Bj accepting retirement, under an erroneous decision of the Xavy Department, with a lower rank and rate of pay than that to which he was legally entitled, a mate did not waive or forfeit any legal right which he had to be retired other- wise; and his retirement should be corrected, retroactively, so as to confer upon him the higher rank and pay to which he was entitled. (26 Op. Atty. Gen., 615; 27 Op. Atty. Gen., 66, noted more fully above, under "Retirement of mates who served during the Civil War.") Pay and allowances of mates. — The pay of mates is fixed by law; those in the servdce August 1, 1894, by the act of that date (28 Stat., 212); those appointed since, by section 1556 of the Revised Statutes. When a man is appoint- ed a mate his pay_ does not depend upon his length of service, it merely depends upon the character of his duty — whether at sea, on shore, or on leave, or waiting orders; he receives no increase for longevity, as do the warrant and other officers. (File 3031-40, Mar. 11, 1908. See also 4 Comp. Dec, 124. The pay of all mates was increased 25 per cent by act of May 13, 1908, 35 Stat., 128.) Although mates are considered as enlisted men for the purjjoses of discharge and reenlist- ment, yet they are debarred from the benefits of the additional pay allowed other enlisted men for succeeding reenlistments. They are usually appointed from chief petty officers having long and creditable records, whose pay upon appointment as mate may immediately be reduced, notwithstanding the greater respon- sibilities of the position. (File 3031-32, Feb. 12, 1908.) The pay of an enlisted man as mate begins on the date of his rating as mate, or on the date such rating is made to take effect, without re- gard to the date of the administering to him of an oath for the performance of his duties as such ; his rating is not an appointment, but an order which he must obey, and which he has no" choice but to accept. (13 Comp. Dec, 514.) "^Tiere a mate of the Navy, upon being honor- ably discharged while serving as such after the expiration of the term of his enlistment, reen- lists in the rating of mate within four months from such discharge, he is entitled to the four months' gratuity pay provided by section 1573, Revised Statutes, as amended by act of March 3, 1899, computed on the pay he was recei\dng at the time he was discharged. (14 Comp. Dec, 457; file3031-19, Oct. 25, 1907; Comp. Dec, Feb. 27, 1908, file 3031-35, 84 S. and A. Memo., 589.) Mates in the Navy are petty officers, and their pay being specifically fixed by section 1556 of the Re\dsed Statutes, and any additional pay or allowance thereto being prohibited by sec- tion 1558 of the Re\dsed Statutes, they are not entitled upon reenlistment within the provi- sions of section 1573 of the Revised Statutes, as amended by act of March 3, 1899, in the rating of mates, to theincrease of pay per month pro\aded therein for enlisted men who reenlist within such pro^dslons. (14 Comp. Dec, 457; see also 9 Comp. Dec, 600; Comp. Dec, Feb. 27, 1908, file 3031-35, 84 S. and A. Memo., 589.) Mates of the Navy being specifically excepted from the pro\dsions of section 1569 of the Re- vised Statutes, under authority of which the extra compensation for good-conduct medals and bars, seamen gunners' certificates, and petty officers' certificates, is prowled, they are not entitled to such extra compensation. (14 Comp. Dec, 457; see also 9 Comp. Dec, 600, and file 3031-7, Jan. 12, 1907.) 521 Sec. 1408. Pt. 2. REVISED STATUTES. The Navy. Mates are not entitled to one-fourth addi- tional pay for detention beyond expiration of enlistment, as pnndded by section 1422, Re- vised Statutes, as amended, for the reason that this 18 additional pay to that specifically pro- \'ided by eet^tion 1556, Rexdsea Statutes, and therefore prohibited by section 1558, Revised Statutes. Also, the detention of mates who were not discharged upon expiration of enlist- ment, was not such a detention in the service as contemplated by the statute. (14 Comp. Dec., 457.) A mate honorably discharged on account of the expiration of his enlistment, while serving after the expiration of the term of his enlist- ment, is entitled to travel allowance on dis- charge provided for enlisted men bv act of June 29, 1906 (34 Stat., 555). This is not pay, but a provision to assist enlisted men of the Navy to return to their homes or places where the Government took them into the service; is a beneficial statute, and following the rule in such cases, the Comptroller has been liberal in construing it and other similar provisions for enlisted men of the military service. (14 Comp. Dec, 457.) Mates, although their pay is fixed by law, instead of by the President, are in other re- spects entitled to the emoluments of petty officers, among which are rations. The ex- ception of mates from section 1569, Revised Statutes, merely indicates that Congress, having already fixed their pay, such pay need not be fixed by the President. But they are still within the exception of "petty ofiicers, seamen, and ordinary seamen attached to receiving ships," who are inferentially allowed a ration by section 1579, and the exception of petty officers, from those who are not en- titled to rations under section 1579, indicates that as such they are entitled to a ration. (U. S. V. Fuller, 160 U. S., 593.) In the case of United States v. Fuller (160 U. S., 593), affirming the judgment of the Court of Claims (30 Ct. Cls., 108), it was held that "mates are petty officers, and as such entitled to rations or commutation therefor." The claimant, therefore, being a petty officer, clearly has a right to recover the commutation price of a Navy ration while 8er^^Jlg as a mate on board a receiving ship. (Baxter v. U. S., 32 Ct. Cls., 75; 12 Comp. Dec, 728.) The status of a mate as to rations, or com- mutation thereof, while serving at sea, is not affected by his discharge and reenlistment in the rating of mate. (Comp. Dec, Feb. 27, 1908, file 3031-35, 84 S. and A. Memo., 589.) \\Tiile on shore duty a mate would be en- titled, while performing such duty, to com- mutation of quarters, provided he did not occupy public quarters. (Comp. Dec, Feb. 27, 1908, file 3031-35, 84 S. and A. Memo., 589.) The act of March 3, 1901 (31 Stat., 1107), pro- vided under the head of Pay of the Navj^, for ' ' commutation of quarters for officers on shore, not occupying public quarters, including * * * mates, who shall hereafter receive the same commutation for quarters as second lieutenants of the Marine Corps." (12 Comp. Dec, 728.) ' For other references to the pay of mates, see note to section 1556, Revised Statutes. Mates eligible for appointment and pay- as Navy mail clerks. — "A mate being an enlisted man is eligible for selection and desig- nation as Navy mail clerk under the act of May 27, 1908" (35 Stat., 417). It has been held that, as the pay of mates is fixed by sec- tion 1556, Revised Statutes, they are not en- titled to any additional pay as enlisted men or as mates, by reason of section 1558, Revised Statutes. The prohibition in the latter section, however, applies only to compensation for performance of duties as mate, and the addi- tional allowances refer to such allowances for duties required by the enlistment and rating as mate. Navy mail clerks and assistant Navy mail clerks perform new and additional duties, which are not those of enlisted men or of mates, and were not contemplated by the prohibition contained in_ section 1558. Accordingly, held, that a mate is entitled to receive the pay pro- vided for Navy mail clerk, when duly desig- nated as such, in addition to his pay as mate. (Comp. Dec, Oct. 21, 1908, 92 S. and A. Memo. 870.) Revocation of appointment. — The ap- pointment of a mate should not be revoked, unless requested by the holder. If so re- quested, it may_ be revoked, in which case he would be considered as holding a permanent appointment in the rating from which last advanced, and if discharged in that rating, should be reenlisted therein. (File 3031-19, Oct. 25, 1907.) Mates cannot legally be rated from men enlisted for less than two years. — To en- title an enlisted man to the pay pro\dded by section 1556 of the Revised Statutes for mates, he must have been rated during an enlistment of not less than two years. A man rated as mate on August 24, 1897, while serving in an enlist- ment of one year, was not entitled to the pay of mate on that • rating. He was actually dis- charged from his enlistment on December 13, 1897, and served thereafter under his appoint- ment as mate, without reenlistment, until November, 1907. As he was recognized by the Navy Department as a mate and performed the duties of a mate, he may be considered as a de facto mate during that service (Aug. 24, 1897 to Nov., 1907); and having received the pay provided by law for a mate, he is, for the reasons stated in the case of Badeau v. U. S. (130 U. S., 439), entitled to retain it. (Comp. Dec, Jan. 30, 1908, 83 S. and A. Memo., 565, 566; see also note to sec. 236, R. S., under VIII (C), "Mistake of law.") Appointment as wrarrant ofla.cers. — Mates appointed to the grades of warrant officers are not "promoted" to said grades, but are "appointed" thereto, in the same manner as any enlisted man of the Nai'y might have been appointed. The grade of boatswain is not the next higher grade above the rating of mate, any more than is any other warrant grade, or in fact any other corps of the Navy. (File 3031-12, July 10, 1907. For other cases see note to sec 1458, R. S., under " 'Promotion' and 'appointment' compared.") The Navy Department does not deem it de- sirable to make an exception in the case of a mate who makes application to take the exami- nation for boatswain in the Navy, and who, at 522 The Navy. Pt. 2. REVISED STATUTES. Sec. 1409. the date of the next examination, would be about 9^ years above the maximum age pre- scribed for candidates for that grade. (File 3031-55, June 16, 1908; see note to sec. 1405, R. S., under "Ages of candidates for appoint- ment.") A mate may be appointed a boatswain a few months before he becomes eligible for retire- ment, on condition that he waive his right to retirement with the rank of chief boatswain on account of civil war service, to which he would become entitled upon his appointment as boatswain. (File 3031-57, July 31, 1908, case of Thomas G. McDonough, appointed a boat- swain in the Navy Aug. 6, 1908, and retired as boatswain Feb. 6, 1909, upon his own appli- cation after 30 years' service. Compare U. S. V. Andrews, 240 U. S.. 90.) Sec. 1409. [Mates and warrant officers; not discharged from enlistment.] The rating of an enlisted man as a mate, or his appointment as a warrant officer, shall not discharge him from his enlistment. — (17 May, 1864, c. 89, s. 3, r. 13, p. 79. 3 Mar., 1865, c. 124, s. 3, v. 13, p. 539.) Historical note. — Section 3 of the act of March 3, 1865 (13 Stat., 539), provided "that hereafter mates may be rated, under authority of the Secretary of the Navy, from seamen and ordinary seamen who have enlisted in the naval service for not less than two years, and such rating of an enlisted man, or his appointment as an officer, shall not discharge him from his enlistment." The substance of this section was embodied in sections 1408 and 1409 of the ReA-ised Statutes, the portion relating to the appointment of an enlisted man as an "officer" being interpreted to mean his appointment as a "warrant officer." (9 Comp. Dec, 600.) Sec. 1409 does not apply to appoint- ments as commissioned officers. — A man while ser\'ing an enlistment as chief yeoman was appointed paymaster's clerk and then giA-en an appointment as assistant paymaster. Beld, that the continuity of his service was broken by his acceptance of a commission; that his enlistment was as effectually terminated by his appoint- ment as assistant paymaster as though he had served out the term for which he enlisted; and that "it certainly can not be ruled that an ajj- pointment as a commissioned officer causes no separation from an enlisted service under which the appointee was serving, and that no break in the enlisted serAdce would be occasioned if the service as commissioned officer continued for four months." (Comp. Dec, Nov. 29, 1899, 11 MS. Comp. Dec, 628; and Feb. 15, 1900, 12 MS. Comp. Dec, 547; see also Comp. Dec, June 24, 1903, 27 S. and A. Memo., 222.) Ser\ice as a commissioned officer is incom- patible with service as an enlisted man. (Comp. Dec, June 24, 1903, 27 S. and A. Memo., 222.) The act of May 22, 1917 (40 Stat., 84), con- templates the preservation of the enlisted status of men temporarily appointed to warrant and commissioned rank under that act; other- wise there would be nothing to which they could "revert" upon the termination of their temporary appointment as required by section 7 of said act. Accordingly, there is no legal objection to providing that enlisted men, tem- porarily appointed warrant or commissioned officers, shall not be discharged from their en- listments upon the acceptance of such appoint- ments; and, if their enlistments expire while holding under temporary appointments as war- rant or commissioned officers they shall not be discharged until the termination of their tem- porary appointments. Upon reverting to his former status, if his enlistment has expired while holding such temporary appointment, the man will immediately be given his dis- charge and final settlement. The act thus ajiplied creates the apparent anomaly of a per- son occupying the dual status of officer and en- listed man, but such a status is not unknown to the naval service (citing sec 1409, R. S.). Withholding their discharges and final settle- ments under such circumstances does not amount to detaining them in the service; by their acceptance of such appointments under the conditions imposed by the statute they are deemed to have voluntarily waived their right to discharge upon the expiration of their terms of enlistment and to have accepted all of the conditions imposed by the_ statute, including the recjuirement as to reverting upon the termi- nation of their temporary appointments. (File 7657-445, June 21, 1917.) Applies only to mates and warrant officers. — The Navy Regulations, 1900, article 861, provided: "^^Tien enlisted men accept * * * appointments as paymasters' clerks their enlistments terminate on the date of tak- ing the oath under such * * * appoint- ments, and ser\dce thereunder for a longer period than four months debars them from all benefits of previous enlisted service in com- puting increased pay under subsequent enlist- ments." An enlisted man who accepted an appointment as paymaster's clerk while this regulation was in force thereby terminated his eiilistment. Section 1409 of the Revised Statutes is not applicable to this case, as the claimant, a paymaster's clerk, is neither a mate nor warrant officer. (10 Comp. Dec, 529. Note: The title "paymaster's clerk" wag changed to ' ' pay clerk ' ' and the status of pay clerks changed to that of warrant officers, by act Mar. 3, 1915, _ 38 Stat., 942, which also created a subordinate grade designated as "acting pay clerk" and the commissioned grade of chief pay clerk. The acceptance of an appointment as acting pay clerk ipso facto terminates the appointee's enlistment. File 26254-2020:4, Mar. 15, 1918; C. M. 30, 1918, p. 24.) May be extended by regulations to in- clude others than mates and warrant officers. — The NaAy Regulations, 1896, article 821, provided that "an enlisted man rated as a mate or appointed a warrant officer or clerk is not thereby discharged from his enlistment." This regulation was a repetition of section 1409 54641°— 22- 523 Sec. 1409. PL 2. REVISED STATUTES. The Navy. with the adclltion of the word "clerk." A di'i):ir(inontal rcj^ulation has the force of law when not contrary to })opiti\e law, and thore is no such law that would nes^ti\e the regulation quoted. Accordingly, held that an enlisted man apiiointed a paymaster's clerk while thia regulation waa in force, and who continued to serve out the unexpired portion of his enlist- ment after his appointment as paymaster's clerk was revoked, was continuously in the service as an enlisted man and that there was no break in his enlistment by reason of his serv- ice as temporary paymaster's clerk, but that the service was fully authorized by article 821 of the Navy Regulations then in force, and therefore the appellant is entitled to the bene- fits of continuous service authorized by section 1573, Revised Statutes, as amended by section 16 of the NaA-y personnel act of March 3, 1899 (30 Stat., 1008). (Comp. Dec, June 24, 1903, 27 S. and A. Memo. , 222. See note to preceding paragraph concerning change in status of pay- master's clerks.) Clerical service is not incompatible with service as an enlisted man. Enlisted men are frequently required to perform clerical duties, and in such cases in the Army are entitled to extra pay for such duty. (Comp. Dec, June 24, 1903, 27 S. and A. Memo., 222.) Regulation can not extend provisions of this section to include other than mates and warrant oflB.cers. — Statutory law can not be amended by regulation, and it is well settled that where certain grants are made, or privileges conferred by statute, such grants or privileges can not be enlarged or extended by regulation to persons or classes to whom they are not ex- tended by the statute. It is not within the power of the executive to write the words "or paymaster's clerks" into section 1409. That would be legislation. The history of the regu- lations shows that the Navy Department former- ly attempted to do this by framing a regulation in the terms of section 1409 except that the words "or clerk" were inserted after the words "warrant officer"; but in a later edition of the regulations this was corrected. The views ex- Eressed by the Comptroller of the Treasury in is decision of June 24, 1903 [noted above], are contrary to this conclusion, but nevertheless held, that the power to extend such a statutory provision _ by means of a Navy regulation, although it would be convenient to do so in many instances, does not_ exist; further, held, that the existing regulation, which provides that when enlisted men accept appointments as paymaster's clerks their enlistments terminate on the date of taking the oath under such ap- pointments, can not be waived in an individual case, because, while any Navy regulation may be annulled, amended, suspended, or waived by the same power that framed it in the first instance, this rule is sul)ject to the proviso that such action must not be in conflict with any statute. (File 8C27-03, Dec. 30, 1903; see, generally, note to sec. 161, R. S.) Revocation of warrant officer's ap- pointment. — The President has no power to revoke the warrant of a boatswain in the Navy and discharge him from tlie service, without the sentence of a court-martial, in disregard of sections 1229 and 1624 (art. 36) of the Revised Statutes. (28 Op. Atty. Gen., 325.) A boatswain is an oflicer of the NaA^ -within the restrictions of the above sections of the Revised Statutes (1229 and 1624, art. 36), con- cerning dismissal. (28 Op. Atty. Gen., 325; see also 15 Op. Atty. Gen., 635.) The tenure of a boatswain's office is fixed by legislation. After it was thus established, it was not within the power of the President to limit it by tlie incorporation in the warrant of the provision that it was to continu3 in force during the pleasure of the President. The revocation of the warrant effects a discharge from the office, and, by a reasonable construc- tion of sec. 1229, a dismissal from service. (28 Op. Atty. Gen., 325.) The question is not affected by the provisions of section 1409. A warrant officer may, before the term of his enlistment has expired, by the sentence of a court-martial, or by resignation of his office, be returned to the condition of an enlisted man; but there is no statutory authority for the President to relegate to his former in- ferior position a regularly warranted officer, who has been promoted from his place as an enlisted man, for the purpose of discharging him. This is contrary to the spirit, if it is not to the very letter, of the law of section 1229, Revised Statutes. (28 Op. Atty. Gen., 325.) "T^Tiile it would be most ' desirable that authority should be given to the President to revoke the commission or warrant of an officer con^'icted of an offense and sentenced to im- prisonment by a civil court, yet no such ex- ception is found in the law to the sweeping provisions of section 1229." (28 Op. Atty. Gen., 325.) Revocation of rating as mate. — See note to section 1408, Revised Statutes. Reduction of warrant officer to ordinary seaman. — Under article 9 of the Articles for the Government of the Navy (sec. 1624, R. S.), an officer who absents himself from his com- mand without leave may, by the sentence of a court-martial, be reduced to the rating of an ordinary seaman. Inasmuch as such a sen- tence deprives a warrant officer of his position as a warrant officer in the U. S. Navy, and as article 53 (sec 1624, R. S.) provides that no sentence extending to the dismissal of a commissioned or warrant officer shall be carried into execution until confirmed by the President, it is deemed advisable as a matter of policy, although not specifically required by the statute, to submit the record of the general court- martial in such case to the President for con- firmation of the sentence ad j udged . ( File 2625 1- 11440, Mar. 30, 1916; C.M.O. 11-1916.) [Inthis case the sentence was confirmed by the Presi- dent April 3,1916; shortly thereafter, the warrant officer thus reduced to ordinary seaman was tried by general court-martial as an ordinary seaman on other charges, sentenced to be dis- honorably discharged from the Navy, and upon approval of the sentence by the Secretary of the Navy it was dulv carried into effect. G. C. M. Rec, No. 31934."J Deposit accounts of mates and warrant officers. — Upon the appointment of an en- listed man as a mate, his deposit account should 524 The Navy. Pt. 2. REVISED STATUTES. Sec. 1410. be treated as thou?:h his enlistment had ex- pired, i. e., he should be paid principal and in- terest to the date of his appointment as mate. (File 16407, July 28, 1903, and 3031-5, Nov. 27, 1906, construing act Feb. 9, 1889, sec. 1, 25 Stat., 657. Note: These rulings were made before the practice of discharging mates upon expiration of enlistment, as explained in note to sec. 1408, R. S., was commenced.) While ser^-ing under an acting appointment as warrant officer, the status of an enlisted man clearly continues as that of an enlisted man; he must qualify for a permanent appointment by probationary service, or otherwise would be discharged from the ser\dce as an enlisted man. He should accordingly, while serving under such acting appointment, be permitted to make deposits, and to draw interest on de- posits already made. Upon permanent ap- pointment his deposit account should be treated as though his enlistment had expired, that is, he should be paid principal and interest to the date of his appointment, as was held by the Navy Department in the case of mates, be- fore the present practice was commenced of discharging and reenlisting them. (File 26254- 2020, June 6, 1916.) The act of February 9, 1889 ^25 Stat., 657), provides that deposits may be made by "any enlisted man or appointed petty officer of the Navy." Had it been intended to include warrant officers it would undoubtedly have specifically so pro\dded, as it did with petty officers. Warrant officers are not in practice discharged after a fixed period of service, but their tenure of office is practically for life, unless sooner terminated by resignation, sen- tence of court-martial, or in other exceptional manner. A^Tiile section 1409, Re\-ised Statutes, provides that the appointment of an enlisted man as a warrant officer "shall not discharge him from his enlistment," nevertheless, since the act of P^ebruary 9, 1889, does not include warrant officers, it is necessary that upon ap- pointment as such their deposits, made while enlisted men, be returned in the same manner as though discharged; otherwise the men might be deprived of deposits for life. (File 26254-2020, June 6, 1916.) Warrant officers not regarded as en- listed men. — In the case of an enlisted man appointed as warrant officer, although his ap- pointment does not discharge him from his en- listment, he is not reenlisted upon the expira- tion of his enlistment contract, but continues on under his sole status as warrant officer. He is not regarded as an enlisted man after he gets his warrant, even before the expiration of his enlistment. There is no reason for preserving his enlisted status after he has received his warrant, because he does not at any time, by operation of law, revert to his previous status as an enlisted man. (File 7657^^45, June 21, 1917.) Discharge and reenlistment of acting- ■warrant oflS.cer. — Inasmuch as section 1409 clearly contemplates the concurrence of the status, duties, and obligations of an enlisted man and that of a warrant officer, and in view of the practice of the Bureau of Navigation in the matter, held, that there is no objection to the reenlistment of an acting warrant officer whose term of four years has expired; this ^^ith a view to preserving to the man his continuous service should he fail to be warranted. (File 7267-03.) Discharge and reenlistment of mates. — See note to section 1408, ReAised Statutes. Sec. 1410. [Acting officers; petty officers; secretaries and clerks.] All officers not holding commissions or warrants, or who are not entitled to them, except such as are temporarily appointed to the duties of a commissioned or warrant officer, and except secretaries and clerks, shall be deemed petty officers, and shall be entitled to obedience, in the execution of their offices, from persons of inferior ratings.— (17 July, 1862, c. 204, s. 18, v. 12, p. 610.) See Acting appointments as pay officers section 1381, Revised Statutes. Acting assistant surgeons. See section 1411, Revised Statutes. Acting chaplains. See act of June 30, 1914 (38 Stat., 403). Acting ensigns for engineering duty only were authorized by act of August 29, 1916 (39 Stat., 580). Acting ensigns and acting lieutenants (junior grade) in the Navy, and acting second lieutenants and acting first lieutenants, in the Marine Corps, for aeronautic duty only, were authorized bv act of August 29, 191(3 (39 Stat., 583). Acting flag officers. See sections 1434 and 1464, Revised Statutes. Acting machinists. See act of March 3, 1899, section 15 (30 Stat., 1007). Acting pay clerks. See act of March 3, 1915 (38 Stat., 942). Acting -warrant oflB.cers.— The Secretary of the Navy may legally appoint acting gunners in the Navy, and the power to make such ap- pointments is strongly implied by section 1410, Revised Statutes. A right to appoint gunners to an undefined extent (see sec. 1405, R. S.) does not conclude against the power to appoint acting gunners also. (15 Op. Attv. Gen., 564. Note: By act July 15, 1870, sec."l3, 16 Stat., 334, it was provided "that all acts or parts of acts authorizing the appointment of tem- porary acting officers in the Navy be, and the same are hereby, repealed, except as to as- sistant surgeons.") An acting gunner is not, as such, even a petty officer. Accordingly, the laws (sees. 1229 and 1624, art. 36, R. S.) making provision as to dismissals of "officers" from the naval service, do not apply to the case of an acting gunner. (15 Op. Atty. Gen., 564.) Acting appointments as boatswains, gunners, and carpenters are issued pursuant to Navy Regulations, 1913, article R-3312. Other acting appointments are specifically authorized by laws noted above. 525 Sec. 1410. Pt.2. REVISED STATUTES. The Navy. Acting commissioned officers. — "An of- ficer duly appoinUHi to act in any grade sliall, while serving under such appointment, be entitled to the same command, precedence, and honors as if he held a commisaion in that grade of the etime date as his appointment." (Art. R-1048, Navy Regs., 1913.) In accordance with the general custom, acting oiiicerf, both in the Army and Navy, do not hold commissions. (File 13707-38:7, Aug. 20, 1914.) "Officers" and " eniisted men" de- fined. — The term "all officers" in sectiqn 1410, Revised Statutes, is a general designation, which includes petty officers. (Muse v. U. S., 19 Ct. Cls., 441.) Petty officers and warrant officers in the Navv are generally spoken of as officers, and the jlevised Statutes, section 1410, recognizes the usage; but all petty officers are not officers within the sense of the" Constitution or of penal stiitutes. (Muse v. U. S., 19 Ct. Cls., 441; see also note to Constitution, Art. II, sec. 2, clause 2, under "I. Officers of the United States.") Within the meaning of the Articles for the Government of the Navy (sec. 1624, R. S.), "unless there be something in the context or subject matter repugnant to or inconsistent with such construction, officers shall mean commissioned and warrant officers; superior officers shall be held to include mates and petty officers of the Navy and noncommis- sioned officers of the Marine Corps, in addition to the officers enumerated." (Naval Courts and Boards, 1917, p. 86.) Witliin the meaning of the Articles of War relating to the Army, ' 'unless the context shows that a different sense is intended, * * * the word 'officer' shall be construed to refer to a commissioned officer." (Sec. 1342, R. S., art. 1, as amended by act Aug. 29, 1916, 39 Stat., 650.) Within the meaning of the War Risk Insur- ance Act of October 6, 1917 (40 Stat., 401), ' 'the term 'commissioned officer' includes a warrant officer, but includes only an officer in active service in the military or naval forces of the United States. * * * The terms ' man ' and 'enlisted man' mean a person, whether male or female, and whether enlisted, enrolled, or drafted into active service in the military or naval forces of the United States, and include noncommissioned and petty officers, and mem- bers of training camps authorized by law." (See sec. 22 of act cited.) The Navy consists of officers, warrant officers, petty officers, and seamen. Some of the war- rant and petty officers of the Navy may be officers technically, because appointed by the head of a department; and others may be officers only by courtesy, because they are appointed by the chief of a bureau or the com- mander of a ship; but the two terms, "officers" and "enlisted men" are manifestly used in section 1600, Revised Statutes, to include the four classes of the Navy. (Muse v. U. S., 19 Ct. Cls., 441.) "There are three sorts of officers known to the Navy, viz., commissioned, warrant, and petty (sec. 1410); and inasmuch as, by section 1624, article 30, petty officers may be 'dis- charged from the service with bad conduct discharge, ' by order of a summary court-martial, it seems that by 'officers' in article 36 is meant at most only warrant and commissioned officers." (15"0p. Atty. Gen., 635.) Cadets at the Naval Academy, by statutory definition^ are not to be included in general in legislation confined to "officers" of the Navy. (15 Op. Atty. Gen., 635; see also Weller v. U. S., 41 Ct. Cls., 324; and see note to sec. 1512, R. S.) The expression "officers or enlisted men," in a statute relating to longevity, is not to be construed distributively as requiring that a person should be an enlisted man or an officer nominateil and appointed by the President, or by the head of a department, but was meant to include all men in service, either by enlist- ment or regular appointment. (U. S. i'. Hen- dee, 124 U. S., 309.) Section 1410, Revised Statutes, which defines who are petty officers, most clearly classes clerks as officers not holding commissions or warrants, and not entitled to them, but still officers of the Navy. Excepting clerks from those "officers" who would otherwise be petty officers, leaves them classed among the officers previously described. (Hendee v. U. S., 22 Ct. Cls., 134; affirmed 124 U. S., 309. See note to sec. 1386, R. S., concerning present status of paymasters' clerks.) Section 1410, Revised Statutes, classes pay- master's clerks in the Navy among ' 'all officers not holding commissions or warrants, or who are not entitled to them," by excepting them, with others, from such officers as are to be deemed petty officers. (Mouat v. U. S., 22 Ct. Cls., 293, 297; reversed, U. S. v. Mouat, 124 U. S., 303.) The confused condition of our statute law relating to the officers, warrant officers, petty officers, and seamen of the Navy may be best illustrated by the fact that a paymaster's clerk was held to be an officer and was held not to be an officer by the same court, on the same day, and through the same judge; these decisions, of course, meant that a paymaster's clerk was and was not an officer within the intent of certain statutes, the one decision relating to mileage, the other to longevity pay. (Brown V. U. S., 32 Ct. Cls., 379, 383, citing U. S. v. Mouat, 124 U. S., 303, and U. S. v. Hendee, 124 U. S., 309.) A clerk to a pay officer, appointed by au- thority of section 1386, Revised Statutes, was not one of the petty officers who, under section 1410, Revised Statutes, are entitled to obedi- ence in the execution of their offices from persons of inferior ratings. (Johnson v. Sayre, 158 U. S.. 109.) For other cases see note to section 1457, Re\'ised Statutes, under "General legislation not applicable to retired officers," and "Retired officers may be included in general legislation." Mates are petty officers. — See note to section 1408, Revised Statutes. Temporary officers. — There is a class recog- nized in the Navy who are neither commis- sioned nor warrant officers, who perform the duties of the station in which they are tempo- rarily placed. They are generally, though not 626 The 2^avy. PL 2. REVISED STATUTES. Sec. 1411. nocessarily, styled acting, as acting boatswain, acting gunner, etc., and have an appointment with that title. Temporary appointments are also recognized by section 1410, Revised Stat- utes. The appointment referred to in this sec- tion is confined to "officers not holding com- missions or warrants, or who are not entitled to them." The officer receives no commission or warrant. He is simply appointed to the duties of a commissioned or warrant officer. (28 Op. Atty. Gen., 32.5.) Officers holding temporary appointments in the Navy are not either commissioned or war- rant officers, as is recognized by section 1410, Revised Statutes. Legislation, therefore, as to the manner in which such officers are to be cashiered, etc., does not apply in the present case (where party was appointed "an acting master in the Navy on temporary service," and was dismissed from the service by the Secretary of the Navy). The assignment of a reason in the letter of dismissal was-surplusage and perhaps might well have been omitted. (15 Op. Atty. Gen., 560.) Mates are not "temporarily appointed to the duties of a commissioned or warrant officer" within the exception to section 1410, Revised Statutes. AVhile the words "acting master's mates," sometimes employed prior to the Re- vised Statutes, might indicate, by the use of the word "acting," a person temporarily ap- pointed to the duties of a master's mate, officers who are recognized by law, and whose pay is fi.xed by a permanent statute, can not be said to be temporarily appointed. (U. S. v. Fuller, 160 U. S., 593; for other decisions concerning status of mates see note to sec. 1408, R. S.) Acting assistant dental surgeons in the regular Dental Corps of the Navy, appointed with a view to permanent as distinguished from tem- porary service, and having the same rights in respect to rank, pay, and retirement as other officers in the Regular Navy, are not temporary officers, but are officers of ' 'permanent tenure " within the meaning of the act of March 4, 1913 (37 Stat., 903, since repealed). Strictly speak- ing, the term "permanent tenure" is a misno- mer in any case where applied to officers of the Navy, as all such officers are subject to removal in various ways. The expression was used by Congress as applying to officers whose tenure of office is for 1 if e unless sooner terminated in some authorized manner generally applicable to officers of the Regular Navy. (File 13707- 38:9, Sept. 2, 1914.) Secretary to the Admiral of the Navy. — - The necessary implication of this section is that secretaries are officers not holding commis- sions or warrants and not entitled to them. If secretaries do not hold commissions and are not entitled to them, it follows that they are not appointed by the President, because ap- pointments by the President are always evi- denced by a commission. Accordingly the appointment of the secretary allowed the Admiral of the Navy, by section 1367, Revised Statutes, does not belong to the President, with the advice and consent of the Senate, but devolves upon the Admiral as one personal to himself. (19 Op. Atty. Gen., 589.) Sec. 1411. [Acting assistant surgeons.] The Secretary of the Navy may appoint, for temporary service, such acting assistant surgeons as the exigencies of the service may require, who shall receive the compensation of assistant surgeons.— (3 Mar., 1865, c. 124, s. 6, v. 13, p. 539. 15 July, 1870, c. 295, s. 13, V. 16, p. 334.) Amendment to this section was made by act of February 15, 1879, section 2 (20 Stat., 295), which provided "That from and after the passage of this act the Secretary of the Navy shall not appoint acting assistant surgeons for temporary service, as author- ized by section fourteen hundred and eleven, Re\-ised Statutes, except in case of war." By act of May 4, 1898 (30 Stat., 380), it was pro- vided that "The President is hereby au- thorized to appoint for temporary service twenty-five acting assistant surgeons, who shall have the relative rank and com- pensation of assistant surgeons." The words "the relative rank of" as used in sections of the Revised Statutes in de- fining the -rank of officers were amended to read "the rank of" by the Navy per- sonnel act, March 3, 1899, section 7 (30 Stat., 1006). See sections 1381 and 1410, Re^-ised Statutes, concerning acting appointments in gen- eral. Appointments by the President and Secretary of the Navy. — See note to Con- stitution, Article II, section 2, clause 2, under "II. Constitutional power of appointment." It is universally true that when Congress, in pursuance of its authority under the provision of the Constitution (Art. II, sec. 2, clause 2), sees fit to give the sole power of appointment to the President, it does so by language appro- priate to that end, such as the unqualified phrase, "may appoint." Under such lan- guage the President is vested with power of appointing alone. (23 Op. Atty. Gen., 136; see alfco 22 Op. Atty. Gen., 82.) For form of commission which has been issued by the President to officers appointed acting assistant surgeons in the Navy under the act of May 4, 1898, see Nelson v. U. S., 41 Ct. Cls., 157. [In practice, commissions are no longer issued to acting assistant surgeons.] Acting assistant surgeons are "oflicers" on the active list of the Navy. — The term "officer or enlisted man " in act of May 13, 1908 (35 Stat., 128, since repealed), proi-iding for allowance of death gratuity, includes all per- eons in the service and applies to acting assist- ant surgeons. (File 26543-10, Sept. 11, 1908.) An acting assistant surgeon m the Navy, appointed under the act of May 4, 1898, is an officer on the active list of the Navy within the meaning of the death gratuity law of May 13, 1908 (since repealed). (15 Comp. Dec, 176.) 527 Sec. 1411. Ft. 2. REVISED STATUTES. The Navy. Acting assistant surgeons are not officei's of the Regular Navy. — Congress by their legishitidii lia\e n-coirnizcd the distinction between officers in the permanent and tem- porary Borvice in the Navy. Thus by section 1370, Re\i8ed Statutes, as amended by the naval approi)riation act of May 4, 1898 (30 Stat., 369, 380), in respect to assistant surji;eons, it was provided that "no person shall be ap- pointed assistant surgeon until he has been examined and approved by a board of naval surgeons designated by the Secretary of the Navy, nor who is under twenty-one or over thirty yearsof age, inclusive." That provision, as its language imports, was to guard against the appointment of incompet<;nt surgeons in the Navy, and evidently applies to appoint- ments to be made in the regular or permanent service as contradistinguished from appoint- ments in the temporary 8er\-ice, for in the next succeeding clause or paragraph in the same act is the provision authoriziilg the President "to appoint for temporary service twenty-five acting assistant surgeons, who shall have the relative rank and compensation of assistant surgeons" (without requiring an examination, or fixing any limitations as to age). (Tavlor v. U. S., 38Ct._Cls., 155, 161.) Acting assistant surgeons are not "medical officers of the Navy," ^vithin the meaning of the act of July 28, 1892 (27 Stat., 321), but are officers in the temporary service of the Navy, and are not eligible for duty as members of marine examining boards. (File 15229-12; see also file 947 M, June 13, 1910.) Acting assistant surgeons are officers merely in the temporary service, and not officers of the Regular Naw. (9 Comp. Dec, 827.) The act of February 15. 1879 (20 Stat., 294), provides for a board to make an examination of "the eighteen acting and three acting passed assistant surgeons now in the 8er\'ice, should they desire to present themselves," and au- thorized the President, by and with the advice and consent of the Senate, to appoint those found qualified as assistant surgeons "in the Regular Navy of the United States," and to muster^ out those found not qualified, except that, "in the event of physical disqualifications which occurred in the line of duty, such officer may, upon the recommendation of a retiring board, be placed upon the retired list." (File 27231-51:5, July 10, 1915.) Again, the act of June 7, 1900 (31 Stat., 684, 697), provided that "assistant surgeons under the age of fifty years, appointed for temporary service during the War with Spain, having creditable records, who are now in the Navy, may be given permanent commissions." (Taylor v. U. S., 38 Ct. Cls., 155, 161.) [Section 4693, Revised Statutes, providing the classes of persons entitled to pensions speci- fied "any officer " of the Army, Navy, or Marine Corps, disabled "while in the service of the United States and in the line of duty," and in addition specified "any acting assistant or con- tract surgeon," disabled "while actually per- forming the duties of assistant surgeon or acting assistant surgeon wnth any military force in the field, or in transitu, or in hospital." The fact that a pension was granted to a contract surgeon by the express terms of the statute was held not to authorize a court to hold that it was because he was an officer in the Army. See Byrnes v. U. S., 26 Ct. Cls., 302.] Not eligible for retirement. — Thiit an act- ing assistant surgeon can not legally be retired for physical disability is not open to doubt, as acting assistant surgeons have alwa>-s been appointed and discharged from the Navy eu- tirelv in the discretion of the Executive. (File 27231-51 :5, July 10, 1915; see also file 27231-106, Oct. 22, 1917.) In no case has any acting assistant surgeon been placed on the retired list, with tlu-ee ex- ceptions which were expressly authorized by the law enacted '"to abolish the Volunteer Navy of the United States," viz, the act of February 15, 1879, section 1 (20 Stat., 294). (File 27231-51:5, July 10, 1915.) Except in the cases specifically provided for by the act of 1879, the appointments of these temporary officers have invariably been re- voked for physical disability; their retirement being not only unauthorized by existing law, but contrary to the best interesls of the Navy. Thus, one purpose of the law is to authorize temporary appointments, when required, of doctors who are able to perform the duties for which appointed, regardless of whether they are qualified for the regular Medical Corps. For example, in the present case the officer was appointed an acting assistant surgeon after he had resigned from the regular Medical Corps following his failure to meet the professional requirements for that corps. Similarly, other acting assistant siugeons are appointed who are above the age limit for entering the regular Medical Corps and who could not, therefore, possibly serve the required period before reach- ing the retirement age. Others may be ap- pointed for temporary service who could not qualify physically for the regular corps, the requirements for wliich are naturally more severe because of the privilege of retirement to which its members are entitled. If acting assistant surgeons were legally entitled to re- tirement, the Navy Department could not. in the interest of the Government, recommend the appointment of any applicant unless he pos- sessed all of the requirements necessary for the regular service, and thus one object of the law would be defeated. (File 27231-51:5, July 10, 1915.) When applicants accept appointments as acting assistant surgeons, they are chargeable with knowledge of the law as above stated, and of the fact that such appointments are revoked when for any reason the appointees are either unable to serve, or are no longer needed. (File 27231-51:5, July 10, 1915.) Concerning the retirement of acting assistant surgeons for physical disabiUty, " the law on the subject has been re\-iewed at length, and the conclusion reached, after consideration of all matters bearing on the subject, is that an act- ing assistant surgeon of the Navy, appointed for temporary service under the provisions of the act of May 4, 1898, is not eligible for retire- ment on account of phvsical disability. " (File 27231-51:4, June 30, 1915.) The Secretary of the Navy declines to re- quest an opinion of the Attorney General as to tlie retirement of acting assistant sturgeons, as 528 The Navy. Pt.2. REVISED STATUTES. Sec. 1411. the question has been decided by the Navy Department, and the Attorney General does not possess the power to review the decisions of otiier executive departments. Even when re- quested by the head of a department, the At- torney General has consistently declined to render opinions when it appears that the officer requesting the opinion has already decided the case and requests the Attorney General's opinion merely at the instance of claimants or interested parties who seek to have the existing decision reversed. (File 27231-51:6, July 15, 1915.) [Note.— The act of May 22, 1917 (40 Stat., 84), authorizing temporary appointments in the Navy, to continue in force "not later than six months after the termination of the present war," provided (sec. 9) that "any person origi- nally appointed temporarily, as provided in this act, shall not be entitled to any rights of retirement, except for physical disability in- curred in line of duty." See also act June 4, 1920, section 2 (41 Stat., 834).] Revocation of appointment for physical disabiUty. — In view of the fact that acting as- sistant surgeons can not, under the law, be retired for physical disability, the most liberal an-angement which is possible in their case is to direct that the revocation of appointment be made to take effect three months after date; this is, in itself, in the nature of a gratuity, which is not expressly authorized by law, but which, under special circumstances, the Sec- retary of the Navy has decided may legally be regarded as within the range of executive discretion to grant. (File 27231-51:7, July 14, 1915; see also 27231-51:5, July 10, 1915.) Implied resignation of acting appoint- ment by acceptance of appointment in Regular Navy. — The appointment of an acting assistant surgeon (appointed under the act of May 4, 1898) to the regular service as an assistant surgeon, while still holding a position in the temporary force, operated as a discharge from his former position, and an appointment to the latter; and although the two services are for some purposes to be regarded as continuous the one with the other, yet the position of assistant surgeon held by him in the temporary force is a different and distinct position from that of assistant surgeon in the permanent force to which he was afterwards appointed. (Tavlor V. U. S., 38 Ct. Cls., 155, 159, quoting decision of Comptroller of the Treasury.) Imphed resignation of position in Regu- lar Navy by acceptance of acting appoint- ment. — An assistant surgeon failed in his pro- fessional examination for promotion, was sus- pended from promotion in accordance with section 1505, Kevised Statutes, and during the period of such suspension resigned from the Navy. Thereafter he was appointed an acting assistant surgeon in the Navy, which position he later resigned. It was then contended that he was insane at the time of his resignation as an assistant surgeon, and that said resignation was accordingly invalid and should be revoked. Held, that even though he was insane at the time of his resignation as an assistant surgeon the finding of the board of medical examiners established his sanity at the time he was ap- pointed an acting assistant surgeon, and his acceptance of such appointment was tanta- mount to the resignation of his former office of assistant surgeon inthe Navy, if he still held such office at the time of his acting appoint- ment. However, the evidence clearly estab- lishes this officer's sanity, inasmuch as he was found physically and mentally qualified by a board of examiners at the time of his appoint- ment as an assistant surgeon, at the time of his examination for promotion, and again at the time of his appointment as an acting assistant surgeon. _ In the absence of evidence definitely establishing as a fact that he was of unsound mind when he resigned as assistant surgeon, his sanity under the circumstances stated must be conclusively presumed; his resignation of that office was accordingly valid, and he can be re- instated in the Navy only by a new exercise of the appointing power. (File 27231-51:1, Feb. 24, 1913.) Rank and pay of acting assistant sur- geons.— By act of May 4, 1898 (30 Stat., 369, 380), the President was authorized "to appoint for temporary 8er\T.ce twenty-five acting assist- ant surgeons, who shall have the relative rank and compensation of assistant surgeons." When this act was passed, the pay of officers in the naval service was generally regulated by section 1556, Revised Statutes. By section 13 of the Navy personnel act of March 3, 1899 (30 Stat., 1004, 1007), it was provided that com- missioned officers of the line of the Navy and of the Medical and Pay Corps "shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law, for the officers of corresponding rank in the Army." The effect of this act was to in- crease the pay of naval officers generally, and therefore to enhance the pay of assistant sur- geons. (Plummer v. U. S., 224 U. S., 137.) The act of June 7, 1900 (31 Stat., 697), raised the rank of assistant surgeons in the Navy by providing that "assistant surgeons shall rank with assistant surgeons in the Army." The effect of tliis act was to give assistant surgeons in the Navy a higher rank — that is, to raise them from the rank of ensign, under section 1474, Revised Statutes, to that of lieutenant (junior grade), corresponding with the rank held by assistant surgeons in the Army. (Plummer v. U. S., 224 U. S., 137.) The act of 1898 provided for a standard by which to determine the rank and pay of acting assistant surgeons, and that standard is the rank and pay in force at the time when the services of the acting assistant surgeons are rendered ; accordingly h Id that under section 13 of the Navy personnel act of March 3, 1899 (30 Stat., 1007), and the acts of June 7, 1900 (31 Stat., 697), March 2, 1907 (34 Stat., 1167), and May 13, 1908 (35 Stat., 127), the pay of acting assistant surgeons was enhanced and assimi- lated to that of assistant surgeons, and did not remain fixed as regulated by section 1556, Revised Statutes. (Plummer v. U. S., 224 U. S., 137.) It may not be doubted that the relation which the act of 1898 established between the rank and pay of acting assistant surgeons and assistant surgeons in reason must rest upon the 629 Sec. 1412. Pt.e. REVISED STATUTES. The Navy. euV>ptantial identity of the services to be ren- dered hv the incumbents of both offices. (Plummer r. U. S., 224 U. S., 137.) The pay of actinfj assistant surgeon in the Navy was temporarily increased by specific provision in the act of May 18, 1920, section 1 (41 Stat., 602). See note to section 1556, ReN-ised Statutes. The act of May 4, 1898 (30 Stat., 380), is permanent legislation in so far as it authorizes the appointment of acting as- sistant surgeons for temporary sei-vice. Although passed at a time when the United Slates was at war with Spain, it is not limited in its application to the emergencies then existing or presently arising. If Congress had intended that the authority conferred upon the President to appoint acting assistant surgeons for t(»mpo- rary service should be a temporary grant of power, such limitations would have been ex- pressly inserted. Accordingly, hiid that the power conferred upon the President by said act was not exhausted by its exercise during the emergencies then existing and which led to its passage, but still exists and may be exercised whenever necessity therefor arises. (9 Comp, Dec, 827.) Sec. 1412. [Volunteer officers; transfer to Regular Navy, etc.] Officers who have been, or may be, transferred from the volunteer service to the Regular Navy shall be credited v^^th the sea-service perfonned by them as volunteer officers, and shall receive all the benefits of such duty in the same manner as if they had been, during such service, in the Regular Navy. — (2 Mar., 1867, c. 174, s. 3, V. 14, p. 516.) quirement of three years' sea service prior to promotion of acting chaplains is con- tained in act of June 30, 1914 (38 Stat., 403). Service as midshipman at the Naval Academy or as cadet at the ^Military Academy not to be credited to officers of the Navy who were appointed to said academies after March 4, 1913. (Act Mar. 4, 1913, 37 Stat., 891.) Staff officers appointed since March 4, 1913, not to be credited with constructive ser-vice for purposes of precedence. (Act Mar. 4, 1913, 37 Stat., 892.) Staff officers and others appointed from civil life since March 4, 1913, not to be credited with constructiA-e service for purposes of pay. (Act Mar. 4, 1913, 37 Stat., 891.) Transfer of officers fi-om the temporary Navy and Naval Reserve Force to the Regular NaA'y was authorized bv act of June 4, 1920 (41 Stat., 834-836.)." Vessels in merchant marine may be taken pos- session of by President for naval purposes. (Act Sept. 7, 1916, 39 Stat., 731.) Volimteer Naval Resers-e established. (Act Aug. 29, 1916, 39 Stat., 592, as amended by act of July 1, 1918, 40 Stat., 710.) Volunteer Patrol Squadrons: See act of August 29, 1916 (39 Stat.. 600), The effect of the la-w embodied in this section is to give the officers concerned the full benefit of sea duty performed by them while in the volunteer ser\-ice. Such duty may go to complete the period of sea service re- quired in certain grades of the Regular Navy prior to promotion, or may be properly taken into account in the matter of assignment to duty. It does not confer upon the officers referred to the right to have their commissions or their rank antedated. (14 Op. Atty. Gen., 198; see also 16 Op. Atty. Gen., 45, 17 Op. Atty. Gen., 189, and 17 Op. Atty. Gen., 399.) By the regulations of the Navy in force when this law was adopted a certain period of sea service, formerly two years and later one year, was required of officers in the four grades "from ensign to Ueutenant commander, inclusive, be- fore, as a general rule, they were nominated "An act to abolish the Volunteer Navy of the United States," approved February 15, 1879 (20 Stat., 294), made provision for transferring to the Regular Navy line offi- cers and medical officers in the Volunteer NaA'y, and for mustering out volunteer offi- cers not quaUfied to discharge the duties of their position. Any Hne officer of volunteers may be advanced in grade if given a vote of thanks by Con- gress for heroism. (Sec. 1508, R. S.) Honorably discharged volunteer officers and sailors are eligible for admission to the Na- tional Home for Disabled Volunteer Sol- diers. (Act May 26, 1900, 31 Stat., 217.) Other provisions for crediting officers of the Navy with service in the Volunteer Army or Na\'y are contained in the act of March 3, 1883 (22 Stat., 473). Pay of officers in a volunteer naval service, when authorized by law, is provided for by section 1559, Revised Statutes. Previous service to be credited to officers ap- pointed to any corps of the Navy or to the Marine Corps, after serving in a different corps of the Navy or of the Marine Corps. (Act June 10, 1896, 29 Stat., 361.) Previous service to be credited to certain sur- geons in the Navy appointed for meritorious services during yellow fever epidemics. (Act June 10, 1896, 29 Stat., 361.) "Sea service" defined: See section 1571, Re- visQd Statutes. By act of August 29, 1916 (39 Stat., 579), it was proWded that "on and after June thirtieth, nineteen hundred and twenty, no captiiiri, commander, or lieutenant commander shall be promoted unless he has had not less than two years' actual sea ser\-ice on seagoing ships in the grade in which ser\-ing. * * * Pro- vided, That the qualification of sea serxdce shall not apply to ofiicers restricted to the performance of engineering duty only." This requirement as to sea service was modified in its application to exceptional cases during war or national emergency bv act of July 1, 1918 (40 Stat., 718). A re- 530 The Navy. Pt. 2. REVISED STATUTES. Sec. 1413. for promotion to the next higher grades. (See Regulations of 1865, p. 46, par. 257; Regulations of 1870, p. 130, par. 299.) Besides, officers of the Navy generally are credited with their sea service with a view to its being taken into con- sideration in theii" future assignment to duty. The design of the provision referred to, then, was to give the transferred officers the full bene- fit of their former sea service, in so far as it might go to complete the period of such service required in their respective grades previous to nomination for promotion, and in so far as it ought properly to be taken into account in the matter of assignment to duty. Beyond these advantages the provision would seem to confer nothing. (14 Op. Atty. Gen., 358.) Sec. 1413. [Civil Engineer Corps; and Storekeepers.] The President, by and with the advice and consent of the Senate, may appoint a civil engineer and a naval store-keeper at each of the navy-yards where such officers may be necessary.— (2 Mar., 1867, c. 172, s. 1, v. 14, p. 490. 17 June, 1868, c. 61, s. 1, V. 15, p. 69.) Amendment to this section was made by act of March 3, 1899, section 7 (30 Stat., 1006), which provided that "no appointments shall be made of civil engineers in the Navy on the active list under section fourteen hundred and thirteen of the Revised Statutes in excess of the present number, twenty-one." Further amendment was made by act of July 1 , 1902 (32 Stat., 671), which provided that "the appointment of six additional civil engineers is hereby authorized, three to be appointed during the present calendar year, and the other three in the calendar year of nineteen hundred and three." " One additional civil engineer, in all twenty- eight, and twelve assistant ci^•il engineers, of whom six shall haA e the rank of lieu- tenant (junior grade) and six the rank of ensign," were authorized by act of March 3, 1903 (32 Stat., 1197). By act of March 4, 1917 (39 Stat., 1184), it was provided that "officers of the Corps of Civil Engineers hereafter appointed shall, from the date of their original appointment, take rank and precedence with Lieutenants (junior grade)." One civil engineer (Leonard Martin Cox), was authorized by name to be restored to the Corps of Ci^•il Engineers, to be "carried as an additional to the number of the grade to wliich he may be appointed under this act, or at any time thereafter." (Act Mar. 4, 1907, 34 Stat., 1407.) The total number of civil engineers in the Navy was thereby increased, temporarily, to 29. By act of August 29, 1916 (39 Stat., 576), it was provided that "the total number of com- missioned officers of the active list of the following staff corps, exclusive of com- missioned warrant officers, shall be based on percentages of the total number of commissioned officers of the active list of the line of the Navy, as follows: * * * Corps of Civil Engineers, two per cen- tum * * *. The total number of com- missioned officers of the active list of the following mentioned staff corps at any one time, exclusive of commissioned warrant officers, shall be distributed in the various grades of the respective corps as follows: *. * * Corpsof Civil Engineers: One-half civil engineers with the rank of rear ad- miral to five and one-half civil engineers with the rank of captain, to fourteen civil engineers with the rank of commander, to eighty civil engineers and assistant civil engineers with the rank below commander. * * * When there is an odd number of officers in the grade or rank of rear admii-al in the line or in each corps, the lower di- vision thereof shall include the excess in number, except where there is but one. Whenever a final fraction occurs in comput- ing the authorized numlier of any corps, grade, or rank in the naval service, the nearest whole number shall be regarded as the authorized number: Provided, That at least one officer shall be allowed in each grade or rank. For the purpose of deter- mining the authorized number of officers in any grade or rank of the line or of the staff corps, there shall be excluded from consid- eration those officers carried by law as addi- tional numbers, including staff officers here- tofore permanently commissioned with the rank of rear admiral, and nothing contained herein shall be held to reduce below that heretofore authorized by law the number of officers in any grade or rank in the staff corps." The temporary appointment of additional officers during the period of the existing war was authorized by the act of May 22, 1917, section 4 (40 Stat., 85), as amended by act of July 1, 1918 (40 Stat., 715), which also authorized temporary ap- pointments and promotions to fill dming the period of the war the deficiency exist- ing prior to May 22, 1917, in the total number of commissioned officers author- ized by the act of August 29, 1916. By act of June 4, 1920 (41 Stat., 834), it was pro- vided that ''the number of staff officers on active duty of whatever kind shall be in the same proportions as authorized by existing law." " Promotions in the corps of civil engineers shall be after such examination as the Seci'etary of the Navy may prescribe." (Act Mar. 3, 1903, 32 Stat., 1197.) Examinations were discontinued for promotion of staff officers in grade by act of May 22, 1917, section 20 (40 Stat., 89), which act and section also reenacted a provision in the act of March 4, 1917 (39 Stat., 1182), re- quiring examinations of staff officers for advancement in rank. Advancement in rank of staff officers up to and including the rank of lieutenant commander is regulated by act August 29, 1916 (39 Stat., 576). 531 Sec. 1413. PL 2. REVISED STATUTES. The Navy. Advancement to the ranks of commander, captam, and rear admiral in the Staff Corps of the Navy are to be made by selec- tion upon recommendation of a l)oard of oHicers of the corps concerned. (Act July 1, ]!)18, 10 Stat., 718.) Rank of civil engineers is fixed by section 1478, Revised Statutes, as amended by act of August 29, 191G (39 Stat., 577). Rank of assistant ci\il engineers. See acts of March 3, 1903, and March 4, 1917, noted above. Storekeepers; civilians may be appointed for foreign stations. (Sec. 1414, R. S.) Storekeepers; bonds required of civilians. (Sec. 1415, R. S.) Storekeepers; officers required to act as. (Sec. 1438, R. S.) Storekeepers; bonds required of officers acting as. (Sec. 1439, R. S.) Storekeepers; mileage was allowed for travel by section 15(J6, Revised Statutes, now superseded. Storekeepers; pay of officers acting as. (Sec. 1567, R. S.) Storekeepers; pay of civilians. (Sec. 1568, R. S.) Storekeeper at Naval Academy to be detailed from Pay [now Supplv] Corps. (Sec. 1527, R. S.) Historical note. — Prior to the act of March 2, 1867 (14 Stat., 490), civil engineers were appointed by the Secretary of the Navy; since then, under authority of that act (now embodied in sec. 1413, R. S.), they have been commissioned by the President by and with the advice and consent of the Senate; they were appropriated for as part of the civil establishment at the several navy yards and stations under the control of the Bu- reau of Yards and Docks until 1870, when their pay was regulated by section 3 of the act of July 15 of that year (now embodied in section 1556, Revised Statutes), fixing the annual pay of officers of the Navy on the active list, and ap- propriations for their pay have been made since 1870 under the head of "Pay of the Navy." (17 Op. Atty. Gen., 126.) Prior to 1867 civil engineers in the Navy were appointed by the Secretary of the Navy, and their duties were shore duties — the superin- tendence and charge of buildings in navy yards. (Brown v. U. S., 32 Ct. Cls., 379.) The authority of the Pre.'^ident under the act of March 3, 1871 (now embodied in sec. 1478, R. S.), "to determine and fix the relative rank of civil engineers," was not exercised until February 24, 1881. (17 Op. Atty. Gen., 126.) In 16 Op. Atty. Gen., 203, it was held that civil engineers, in the absence of action by the President conferring rank upon them as au- thorized by law, were civil officers, and not naval officers, and might be removed by nomi- nation and confirmation of a successor in any case; and that no notice of dismissal need be sent the officer so removed. Also held that sec- tion 1413, Revised Statutes, "necessarily im- pUes that such appointments are only to be made where such officers are found necessary, and inferentially that their services may be dispensed with when unnecessary; and indi- cates that the appointment is to some extent a local one, and that the ajjpointee can not be a naval officer in the full sense of the term." In 17 Op. Atty. Gen., 126, it was held that civil engineers are not merely "civil officers connected with the Navy," but are officers in the Navy, plainly included among those con- templated by the amended section 1480, Re- vised Statutes, as belonging to the "staff corps of the Navy," and possessing, under a then recent order issued pursuant to section 1478, Revised Statutes, defined relative rank with other offi- cers in the Navy; and accordingly, that they may be retired from active service and placed on the retired list under the statutory provi- sions (sees. 1443 et seq.) regulating the retire- ment of officers in the Navy. (It had previ- ously been held, in 15 Op. Atty. Gen., 165, that civil engineers appointed under sec. 1413, R. S., are officers of the Navv within the meaning of arts. 36 and 37 of sec. 1624, R. S.; and in 15 Op. Atty. Gen., 597, that they were persons be- longing to the Navy and as such subject to the jurisdiction of naval courts- martial.) In Brown v. U. S. (32 Ct. Cls., 379), it was held that the acts of March 2, 1867 (sec. 1413, R. S.), and July 15, 1870 (16 Stat., 321, 330, sec. 3), and March 3, 1871 (16 Stat., 526, 536), did not change the legal status of ciWl engineers in the Navy, but were merely a legislative recog- nition of civil engineers as officials who were then and always had been in the naval and not in the civil service; that both the Navy De- partment and" the accounting officers of the Treasury had uniformly held that civil engi- neers in the Navy were in the naval service; and accordingly that civil engineers in the Navy prior to the act of March 2, 1867 (sec. 1413, R. S.), were officers and were in the naval serv- ice mthin the intent of the act of March 3, 1883 (22 Stat., 473), relating to longevity pay. Civil Engineer Corps, increases for benefit of designated individuals not favored.- — "The Department is not satisfied as to the necessity for increase in the corj^s of civil engineers, and even if an increase should be deemed advisable, believes that it should be made in the regular way, by an authorized increase in the corps, and not by a bill designed to benefit a particular individual to be ap- pointed as an additional number." (File 532-43, Mar. 31, 1908.) "If the corps is to be increased it would seem that the increase should be made first and the candidate qualify afterwards, rather than to pass a special law creating a vacancy for any person, however worthy." (File 532^2, Feb. 29, 1908.) As to unconstitutionality of such legis- lation, see note to Constitution, Article II section 2, clause 2, "Congress cannot designate appointee," under "III. Power of Congress." Superintendent of State, War, and Navy Building.— The act of March 3, 1883 (22 Stat. 553), does not contemplate that an officer of the CorjDB of Civil Engineers of the Navy shall be eligible for appointment as superintendent of the State, War, and Navy Building. (25 Op, Attv. Gen., 508. See also notes to sees. 1390 and 1462, R. S.) 532 The Navy. PL 2. REVISED STATUTES. Sec. 1416. Sec. 1414. [Civilian storekeepers on foreign stations.] The Secretary of the Navy may appoint citizens who are not officers of the Navy to be store- keepers on foreign stations, when suitable officers of the Navy can not be ordered on such service, or when, in his opinion, the pubHc interest will be thereby promoted. — (17 June, 1844, c. 107, s. 1, v. 5, p. 700. 3 Mar., 1847, c. 48, s. 3, r. 9, p. 72.) Except as pro\T.ded in this section, the Secre- tary of the Na^^ shall order a suitable commissioned or warrant officer to take charge of the naval stores at foreign sta- tions where a storekeeper may be neces- sary. (Sec. 1438, R. S.) Pay of civilian storekeepers on foreign stations is fixed by section 1568, Revised Statutes. Supply officer to be general store- keeper. — At each navy yard and station there shall be an officer of the pay [supply] corps detailed as the general storekeeper. (Art. R-4622, Navy Regs., 1913.) Appointment raxist be made by the Secretary of the Navy. — The appointment of a ci\T.lian naval storekeeper by the com- mander of a squadron is not authorized by law, and is therefore void, and furnishes no ground upon wMch the salary for that office can be claimed. (Larkin v. tJ. S., 5 Ct. Cls., 535. )_ It is clear that under the law embodied in this section a citizen could only be appointed to the office of naval storekeeper by the Secre- tary of the Navy when a suitable naval officer could not be ordered on such service or when in the Secretary's opinion the public service would be promoted by the appointment of a citizen. The commander of a squadron cer- tainly had no authority tomake such an ap- pointment. Possibly he might under a neces- sity have ordered a commissioned or warrant officer of the Navy to discharge the duties of the office temporarily [see section 1438, Revised Statutes], but it cannot be contended that he had any authority of law to order a citizen or to clothe him witn the functions of the office. (Larking. U. S., 5 Ct. Cls., 535.) Sale of stores to officers and enlisted, men. — The Secretary of the Navy is not authorized, in the absence of a provision of law therefor, to purchase for sale to officers and enlisted men of the Navy articles not included in the regular naval stores. (6 Comp. Dec.: 321.) Sections 1414 and 1438 of the Revised Statutes refer only to such naval stores and provisions as are authorized to be issued to the Navy, and do not include anything more than the components of the Navy ration as prescribed by law; and the appropriation for subsistence of the Navy is not available for the purchase of any article of subsistence except such as the law authorizes to be pur- chased and issued to the enlisted men of the Navy, and cannot be used for the purchase of articles of subsistence which may be authorized to be purchased and sold in the commissary stores of the Army under section 144, Revised Statutes, and the act of July 5, 1884 (23 Stat., 108). (6 Comp. Dec, 321.) See laws noted under section 418, Revised Statutes, with reference to sale of naval stores to persons in the Anny, Navy, and Marine Corps, and to civilian employees. Sec. 1415. [Civilian storekeepers to give bond.] Every person who is ap- pointed store-keeper under the provisions of the preceding section shall be required to give a bond, in such amount as may be fixed by the Secretary of the Navy, for the faithful performance of his duty. — (17 June, 1844, c. 107, s. 1, V. 5, p. 700; 3 IVIar., 1847, c. 48, s. 3, v. 9, p. 172.) On general subject of bonds, see note to section 1383, Revised Statutes. Sec. 1416. [Civil offices at yards may be discontinued. Superseded.] This section provided as follows: '"Sec. 1416. The Secretary of the Navy is authorized, when in his opinion the public interest will permit it, to discontinue the office or employment of any measurer and inspector of timber, clerk of the yard, clerk of the com- mandant, clerk of the storekeeper, clerk of the naval constructor, and the keeper of the maga- zine employed at any navy yard , and to require the duties of the keeper of the magazine to be performed by gunners." 10 Aug., 1846, c. 176, 8. 1, V. 9, pp. 98, 99. It was superseded by a clause in the naval appropriation act of March 3, 1909 (35 Stat., 754), noted below under "Clerks to comman- dants of yards and stations." Clerks to commandants of yards and stations. — By section 1556, Revised Statutes, provision was made for the pay of clerks to com- mandants of yards and stations, and pa>Tnent in accordance therewith was specifically au- thorized in the annual naval appropriation act under "Pay of the Navy," including the act of May 13, 1908 (35 Stat., 127). By naval appro- priation act of March 3, 1909 (35 Stat., 754), the Secretary of the Navy was authorized to fix the pay of the "clerical, drafting, inspection, and messenger force at navy yards and naval sta- tions" on a per annum or per diem basis as he may elect; it was further provided therein ' 'that the number may be increased or decreased at his option, and shall be distributed at the various navy yards and naval stations by the Secretary of the Navy to meet the needs of the naval ser\-ice." The same act repealed "so much of section fifteen hundred and fifty-six of 533 Sec. 1417. PL 2. REVISED STATUTES. The Navy. the Revised Statutes as relates to pay of clerks Service as commandant's clerk is not military to commandants of navy yards and naval eta- service, and the Navy Department does not tions," and omitted the specific pro\d8ion approve of proposed legislation crediting such theretofore made under "Pay of the Navy" for service to oriicers of the Na\-y or Marine Corps such dorks. for longevity purposes. (File 26255-274:2, The term "officer or enlisted man'' as used in Jan. 21, 1913.) But see contra. 25 Comp. Dec, the death gratuity law of May 13, 1908 (35 Stat . , 745. 128), does not apply to commandant's clerks. (File54(iO-31.) Sec. 1417. [Enlisted men, number of; advancement to warrant officers.] The number of persons who may at one time be enhsted into the Navy of the United States, including seamen, ordinary seamen, landsmen, mechanics, fire- men, and coal-heavers, and including seven hundred and fifty apprentices and boys, hereby authorized to be enlisted annually, shall not exceed eight thousand two hundred and fifty: Provided, That in the appointment of warrant-officers in the naval service of the United States, preference shall be given to men who have been honorabl}^ discharged upon the expiration of an enlistment as an apprentice or boy, to serve during minority, and re-enlisted ^vithin tliree months after such discharge, to serve during a term of three or more years : Provided further, That nothing in this act shall be held to abrogate the provisions of section fourteen hundred and seven of the Revised Statutes of the United States, ? This section was expressly amended and re- enacted to read as above by act of May 12, 1879 (21 Stat., 3). As it appeared in the second edition of the Re^d8ed Statutes, it read as follows: "Sec. 1417. [The nuviber of persons who may at one time be enlisted into the Navy of the United States, including seamen, ordinary seamen, landsmen, mechanics, firemen, coal heavers, ap- prentices, and boys, shall not exceed eight thousand fivehundred.^ [Thenumber of persons whomay at one time be enlisted into the Navy of the United States, including seamen, ordinary seamen, landsmen, mechanics, firemen, coal heavers, apprentices, and boys, shall not exceed seven thousand and fivehundred.]"— (7 June, 1864, c. Ill, v. 13, p. 120; 17 June, 1868, c. 61, s. 2, v. 15, 72; 30 June, 1876, c. 159, v. 19, p. 66; U. S. v. hompson, 2 Spr., 103.) The number of enlisted men has from time to tim.e been increased as follows: "The number of persons who may at one time be enlisted into the Navy of the United States, including seamen, ordinary seamen, landsmen, mechanics, firemen, and coal heav- ers, and including one thousand five hundred apprentices and boys, hereby authorized to be enlisted annually, shall not exceed nine thou- sand." (Act Mar. 3, 1893, 27 Stat., 730.) "The Secretary of the Navy is hereby author- ized to enlist as many additional seamen as in his discretion he may deem necessarj-, not to exceed one thousand." (Act Mar. 2, 1895, 28 Stat., 826.) "The Secretary of the Na\'y is hereby au- thorized to enlist at any time after the passage of this act as many additional men as in his dis- cretion he may deem necessanv-, not to exceed one thousand." (Act June 10, 1896, 29 Stat., 361.) Subsequent acts fixed the number of euUsted men in the Navy as follows: 11,000 Petty officers, seamen, landsmen, and boys, including men in the engineers' force and for the Coast Survey Service and Fish Commission; and 750 Boys under training at training stations and on board training ships. (Act Mar. 3, 1897, 29 Stat., 648.) 12, 750 Petty officers, seamen, landsmen, and boys, including men in the engineers' force and for the Coast Survey Ser\dce and Fish Commission; 1, 000 Boys under training at training stations and on board training ships; and Men detailed for duty ^\'ith Naval Militia. (Act May 4, 1898, 30 Stat., 369. Pro\'ision was made by the same act for a temporary increase of the enlisted force during the existing War ^\ith. Spain.) 17, 500 Petty officers, seamen, landsmen, and apprentice boys, including men in the engineers' force and for the Coast Survey Service and Fish Commission; 2, 500 Apprentices under training at training stations and on board training ships; and Men detailed for duty with Naval Mili- tia. (Act Mar. 3, 1899, 30 Stat., 1025.) 22, 500 Petty officers, seamen, landsmen, and apprentice boys, including men in the engineers' force, and for the Fish Commission ; 2, 500 Apprentices under training at training stations and on board training ships; and Men detailed for duty with Naval Mi- litia. (Act Mar. 3, 1901, 31 Stat., 1108). 534 The Navy. Pt.2. REVISED STATUTES. Sec. 1417. 25, 500 Petty officers, seamen, landsmen, and apprentice boys, including men in the engineers' force, and for the Fish Commission ; 2, 500 Apprentices under training at trairiing stations and on board training ships; and Men detailed for duty with Naval MiUtia. (Act Julv 1, 1902, 32 Stat., 662.) 28,500 Petty officers, seamen, landsmen, and apprentices, including men in the engineers' force, and men detailed for duty with Naval Militia, and for the Fisn Commission; and 2, 500 Apprentices under training^ at training stations and on board training ships. (Act Mar. 3, 1903, 32 Stat., 1177.) 31, 500 Petty officers, seamen, landsmen, and apprentices, including men in the engineers' force, and men detailed for duty with Naval Militia, and for the Fish Commission ; and 2,500 Apprentices under training at training stations and on board training ships. (Act Apr. 27, 1904, 33 Stat., 324.) 34, 500 Petty officers, seamen, landsmen, and apprentices, including men in the engineers' force, and men detailed for duty with Naval Militia, and for the Fish Commission ; 2, 500 Apprentices under training at trairiing stations and on board training ships; and Men undergoing imprisonment with sentence of dishonorable discharge from the Ber\'ice at expiration of such confinement. (Act Mar. 3, 1905, 33 Stat., 1092.) 36, 000 Petty officers, seamen, landsmen, and apprentice seamen, including men in the engineers' force, and men detailed for duty with Naval Militia, and for the Fish Commission ; 2, 500 Apprentice seamen under training at training stations and on board training ships; and Men undergoing imprisonment with sentence of dishonorable discharge from the service at expiration of such confinement. (Act Mar, 2, 1907, 34 Stat., 1176.) 42, 000 Petty officers, seamen, landsmen, and apprentice seamen, including men in the engineers' force, and men detailed for duty wnth Naval Militia, and for the Fish Commission; 2, 500 Apprentice seamen under training at training stations and on board train- ing ships; and Men undergoing imprisonment with sentence of dishonorable discharge from the service at expiration of such confinement. (Act May 13, 1908, 35 Stat., 127.) 44,000 Petty officers, seamen, landsmen, and apprentice seamen, including men in the engineers' force and men detailed for duty with Naval Militia, and for the Fish Commission ; 3, 500 Apprentice seamen under training at training stations and on board train- ing ships; and Men undergoing imprisonment with sentence of dishonorable discharge from the service at expiration of such confinement. (Act June 24, 1910, 36 Stat., 606.) 48,000 Petty officers, seamen, landsmen, and apprentice seamen, including men in the engineers' force and men detailed for duty with Naval Militia, and for the Fish Commission; 3, 500 Apprentice seamen under training at training stations and on board train- ing ships; and Men undergoing imprisonment ^\'ith sentence of dishonorable discharge from the service at expiration of such confinement. (Act Aug. 22, 1912, 37 Stat., 328.) 48,000 Petty officers, seamen, landsmen, and apprentice seamen, including men in the engineers' force and men detailed for duty with the Fish Commission; 3,500 Apprentice seamen under training at training stations and on board train- ing ships ; Men detailed for duty with the Naval Militia; and Men undergoing imprisonment with sentence of dishonorable discharge from the service at the expiration of such confinement. (Act March 3, 1915, 38 Stat., 938.) 68, 700 Petty officers, seamen, landsmen, and apprentice seamen, including men in the engineers' force and men de- tailed for duty with the Fish Com- mission ; 6,000 Apprentice seamen under training at training stations and on board train- ing ships; Men detailed for duty with the Naval Militia; Men sentenced by court-martial to discharge ; Men furloughed without pay, subject to recall in time of emergency; Men in the Hospital Corps; and 350 Enlisted men of the Naval Flying Corps. (Act Aug. 29, 1916, 39 Stat., 572, 575, 582.) 87,000 "The President is hereafter authorized whenever in his judgment a sufficient national emergency exists, to increase the authorized enlisted strength of the Navy to eighty-seven thousand men." (Act Aug. 29, 1916, 39 Stat., 575.) 150,000 "The authorized enlisted strength of the active list of the Navy is hereby temporarily increased from eighty- seven thousand to one hundred and fifty thousand, including four thou- 535 Sec. 1417. Pt. 2. REVISED STATUTES. The Navy. saiul iidditioiKil apprentice peamcn." (ActMayL'2, 1917, sec. 1,40 Stat., 84.; 131,485 "The authorized enlisted strength of the active list of the Navy is hereby increased f rom oifjhty-seven thousand to one hundred and tliirty-one thou- sand four hundred and eightv-five." (Act July 1, 1918, 40 Stat., 714.) 181,485 "The authorized enlisted strength of the active list of the Navy is hereby temporarily increased from one hun- dred and thirty-one thousand four hundred and eighty-five to one hun- dred and eighty-one thousand four hundred and eighty-five; the author- ized number of apprentice seamen is hereby temporarily increased from six thousand to twenty-four thousand ; and the authorized number of enlist- ed men of the Flying Corps is hereby temporarily increased from three hundred and fifty to ten thousand. * * * Provided further, That the number of enlisted men for instruc- tion in trade schools shall not at any time exceed fourteen thousand, which number is hereby temporarily authorized: Provided further, That the President is authorized, at any time during the period of the present war, when in his judgment it be- comes necessary, temporarily to in- crease the authorized enlisted strength of the Navy, as provided for herein, by the addition of fifty thousand men." (Act July 1, 1918, 40 Stat., 714, expressly amending and reenacting section 1 of the act approved May 22, 1917, 40 Stat., 84.) 241,000 "The total authorized enlisted strength of the active list of the Navy is hereby temporarily increased from 131,485 during the period from July 1, 1919, to September 30, 1919, to 241,000 men, and from October 1, 1919, to December 31, 1919, to 191,000 men, and from January 1, 1920, to June 30, 1920, to 170,000 men and the President is hereby authorized, whenever in his judgment a sufficient national emer- gency exists, to increase the author- ized enlisted strength of the Navy to 191,000 men * * *, The foregoing total authorized enlisted strength shall include the hospital corps, apprentice seamen, those sentenced by court- martial to discharge, enlisted men of the Flying Corps, those under instruc- tion in trade schools and members of the Naval Reserve Force so serving. * * *'■ , Provided further, That noth- ing herein shall be construed as affecting the permanent * * * en- listed strength of the Regular Navy as authorized bv existing law." (Act July 11, 1919, 41 Stat., 138. )_ "That the Secretary of the Navy is hereby authorized to employ on active duty, ^vith their own consent, members of the Naval Reserve Force in enlisted ratings, the number so em- ployed not to exceed during any fiscal year the average of twenty thousand men: Provided, That the number of naval reservists, so em- ployed on active duty, together with the total number of enlisted men in the Regular Navy, shall not exceed the total enlisted strength of the Navy as authorized by laM'." (Act June 4, 1920, 41 Stat., 834.) Apprentice seamen under training. — By act of April 24, 1896, section 2(29 Stat., 97), it was provided that " all a])prenticos of the Navy% whether at a training station or on board an apprentice training ship, shall be additional to the number of enlisted persons allowed by law for the Navy." The term "apprentices" was changed to "apprentice seamen" by act of June 29, 1906 (34 Stat., 553). _ The expression "any enlisted man in the Navy," as used in the naval appropriation act of August 22, 1912 (37 Stat., 330), is broad enough to include a minor enlisted as appren- tice seaman, although the same act in another connection specifically mentions "any enlisted man or apprentice." (20 Comp. Dec, 429; see also note to sec. 1418, R. S.) Men under sentence of dishonorable dis- charge.— The act of March 3, 1905 (33 Stat., 1092), provided that "the number of enlisted men shall be exclusive of those undergoing im- prisonment with sentence of dishonorable dis- charge from the service at expiration of such confinement." This provision was rej^eated in the subsequent naval appropriation acts, each year, unril the act of August 2.9, 1916 (39 Stat., 575), which provided that "hereafter the num- ber of enlisted men of the Navy shall be exclu- sive of those sentenced by court-martial to dis- charge." The latter clause is permanent legis- lation, and modifies that contained in the pre- vious acts relating to the same subject. (File 28687-4, Sept. 16, 1916.) Men detailed, for duty with Naval Mili- tia. — The Naval Militia act of February 16, 1914, section 2 (38 Stat., 283), authorized the Secreta,ry of the Nav^y to detail enhsted men for duty with the Naval MiUtia as "ship keepers," and provided "that such enhsted men shall be in addition to the number now or hereafter allowed by law for the regular Naval Establish- ment." Section 17 of the same act (38 Stat., 288) authorized the Secretary of the Navy, upon appUcation of the governor of any State or Territory or the commanding general. Dis- trict of Columbia Militia, to detail enhsted men of the Navy to report to the officers mentioned "for duty in connection with the Naval Mil- itia," but did not provide that men so detailed should be in addition to the number allowed by law for the Navy. The naval appropriation act of March 3, 1915(38 Stat., 938), authorized 48,000 petty officers, etc., as in the previous year, but omitted therefrom the clause "including * * * men detailed for duty with Naval Militia," which appeared in the prior acts, and instead made specific provision "for the pay of enhsted men detailed for duty with the Naval Militia," in addition to the 48,000 other- wise authorized. Prior to the act of March 3, 1915, above noted, it was held that "the total number of enhsted men appropriated for by the current naval ap- propriation act includes 'men detailed for duty 536 The Navy. Pt.2. REVISED STATUTES. Sec. 1417. with Naval Militia, ' under the general authority conferred upon the Secretary of the Navy to detail officers and enlisted men and report to the governors of the various States, etc., but does not include men attached to vessels of the Navy loaned to the Naval Militia under section 2 of the Naval Militia law, who act as ship keepers, and, under the proAisions of that act are 'in addition to the number now or hereafter allowed by law for the regular Naval Establishment. '" Also, that "the department is authorized to enlist the full number of men appropriated for, if necessary, in addition to the number detailed as ship keepers pursuant to section 2 of the Naval Militia law; and that the enlistment of such additional number of men in excess of appropriations is not prohibited by sections 3G79 and 3732, Re\'ised Statutes, as amended." (File 3973-106, Feb. 8, 1915.) By act of July 1,. 1918 (40 Stat., 708), "all laws heretofore enacted by the Congress relat- ing to the Naval Militia" were repealed. By act of June 4, 1920 (41 Stat., 817) the Naval Militia was revived until June 30, 1922. Men detailed for duty -with. Coast and Geodetic Survey. — See note to section 264, Re^dsed Statutes. Men detailed to nautical schools in the Philippines are additional to the authorized enlisted strength. (Act June 30, 1906, 34 Stat., 817.) Enlisted men of the Hospital Corps. — The naval appropriation act of August 29, 1916 ^9 Stat., 572), provides that the Hospital Corps shall consist of chief phaiTnacists, phar- macists, and enlisted men; that its authorized strength shall equal 3J per centum of the authorized enlisted strength of the Na\'y and Marine Corps; and that it shall be " in addition" to such authorized enlisted strength. Enlisted men of the Flying Corps. — The naval appropriation act of August 29, 1916 (39 Stat., 582), provides that "the Naval Flying Corps shall be composed of 150 officers and 350 enlisted men, and that the said number of officers, student flyers, and enlisted men shall be in addition to the total number of officers and enlisted men which is now or may hereafter be provided by law for the other branches of the naval service." (See laws noted above as to temporary increase of the Flying Corps.) EnHsted men furloughed without pay. — The act of August 29, 1916 (39 Stat., 580), authorized the Secretary of the Navy to fxir- lough enlisted men, without pay, for the un- expired portion of their enlistment, in lieu of discharge by purchase, and subject to recall in time of emergency ; enlisted men so furloughed to be "in addition to the authorized number of enlisted men of the Na\'y." A soldier on f m-lough is a soldier of the United States and is in the service, but not on duty. (Union Pac. R. Co. v. U. S., 52 Ct. Cls., 226.) 'WTien an enlisted man is furloughed without pay for the unexpired portion of his enlistment, his deposit, if any, with interest, should be paid on the date the fuiiough is granted. (File 7657- 402:1, Oct. 18, 1916, constnungact Feb. 9, 1889, sec. 1, 25 Stat., 657, providing for payment of deposits and interest on discharge.) An enUsted man furloughed without pay is nevertheless an enlisted man in the Navy, and as such is entitled to treatment in Navy "hospi- tals. (File 7657-411, Nov. 18, 1916, and Feb. 5, 1917.) The Navy Department is not authorized to defray the burial expenses of an enlisted man of the Navy who died while fiu-loughed under the act of August 29, 1916 (23 Comp. Dec., 504. Although the Navy Department recognizes as binding the decision of the comptroDer in this case, no modification is made in the previous holding of this department with reference to medical treatment of men on furlough. File 7657-411:2, Mar. 15, 1917). The "authorized enlisted strength" of the Navy as used in the nav^al appropriation act of August 29, 1916 (39 Stat., 575), refers to the 68,700 men who are exclusive of all such classes of enlisted men as are appropriated for in addition to the authorized enlisted strength. The 6,000 apprentice seamen are within the latter classification, as are also enlisted men of the Hospital Corps, enlisted men sentenced to discharge, enlisted men detailed to the Naval Militia, and enlisted men of the Filing Corps. The words "authorized enlisted strength" are sufficiently broad to include all enlisted men authorized by law, but it is evident that these words are iised in the act of August 29, 1916, in their technical signification as intended to refer merely to the specific numbers of 68,700 men, and 87,000 men, authorized for ordinary times and for national emergency, respectively. (File 28687-4, Sept. 16, 1916.) "The plirase 'authorized enlisted strength,' as applied to the personnel of the Navy, shall mean the total number of enlisted men of the Navy authorized by law, exclusive of the Hospital Corps, apprentice seamen, those sen- tenced by court-martial to discharge, those detailed for duty with Naval Militia, those furloughed without pay, enlisted men of the Flying Corps, and those under instruction in trade schools. " (Act May 22, 1917. 40 Stat. , 84, as amended by act July 1, 1918, 40 Stat., 714.) The words "total authorized enlisted strength of the active list," as used in the act of August 29, 1916 (39 Stat., 576), are in- tended to designate all classes of enlisted men for whom appropriation is made; that is to say, they include the 68,700 enlisted men proper, and also apprentice seamen, enlisted men of the Hospital Coqjs, enlisted men of the Flving Corps, nav^al prisoners sentenced to discharge, and enlisted men detailed to the Naval Militia. (File 28687-1, Sept. 16, 1916.) Authorized niunber of men is daily average. — The naval appropriation act of June 30, 1914 (38 Stat., 403), provided, "That hereafter the number of enlisted men of the Navy and Marine Corps provided for shall be construed to mean the daily av^erage number of enlisted men in the naval service during the fiscal year." Naval reserve. — A naval reserve of enlisted men was established by act of March 3, 1915 (38 Stat., 940), to consist of men enlisted therem, or transferred thereto from the Regular Navy, and it was provided that "members of the naval reserve may, in time of peace, be requiredto perform not less than one month's active service on board a vessel of the Navy, during each year of service in the naval reserve, and such active service shall not exceed two months in any one year"; and that "in time of war they may be 537 Sec. 1417. PL 2. RE VISED STAT UTES. The Navy. required to perform active service mth the Navy lhroii,c;nout the war, not to exceed the term of enlistment in the case of those enlisted in the naval reserve.'' This was held to be superseded by act of August 29, 1916 (39 Stat., 587), establishino; a Naval Reserve Force to con- sist of six classes, viz, the Fleet Naval Reserve, the Naval Reserve, the Naval Auxiliary Reserve, the Naval Coast Defense Reserve, the Volunteer Naval Reserve, and the Naval Re- servo Flpug Corps. (23 Comp. Dec, 190. The act last cited also established a Marine Corps Reserve and National Naval Vohniteers, and was amended by acts of March 4, 1917, 39 Stat., 1174; April 25, 1917, 40 Stat., 38; May 22, 1917, 40 Stat., 84; July 1, 1918, 40 Stat., 708, 712; Jidv 11, 1919, 41 Stat., 138-141; and June 4, 1920, 41 Stat., 817, 824, 834, 837.) Retired enlisted men. — A retired list of enlisted men and appointed petty officers in the Navy was authorized by act of March 3, 1899, section 17 (30 Stat., 1008), which has been amended by subsequent enactments (see acts June 26, 1906,. 34 Stat., 451; Mar. 2, 1907, 38 Stat., 1217); and by act of March 3, 1915 (34 Stat., 941), it was provided that "the Secretary of the Navy is authorized in time of war, or when, in the opinion of the President, war is threatened, to call any enlisted man on the re- tired list into active service for such duty as he may be able to perform." The act of August 29, 1916(39 Stat., 591), enacted that " the Secre- tary of the Navy is authorized in time of war or when a national emergency exists to call any enlisted man on the retired list into active serv- ice for such duty as he may be able to perform. While so employed such enUsted men shall re- ceive the same pay and allowances they were recei\'ing wnen placed on the retired Ust. " By act of July 1, 1918 (40 Stat.,_ 719), it was pro- vided that any retired enlisted man of the Navy or Marine Corps ordered into active service "shall be eligible for promotion and he shall be entitled to tlie pay and benefits of con- tinuous service of such rank and for such length of time as he is or has been employed in active service, and when relieved of active service shall retain upon the retired list the rank and service held by him at the time of such relief, with the pay and allowances of such rank on the retired list." Retired enlisted men form no part of the or- ganization of the Army. They sever their con- nection with the Army when they go upon the retired list for the purpose of receiving at the hands of the Government retired pay. They are in effect pensioners. They have no mili- tary duty to perform and can not be required to perform any. It is true that in the act of April 25, 1914 (38 Stat., 350), known as the volunteer act, provision is made for the employment of re- tired cnli'^ted men ff)r the performance of certain military duties, and, while so employed, they doubtless become "troops of the United States. ' ' (Union Pac. R. Co. v. U. S., 52 Ct. Cls., 226, citing Murphy v. U. S., 38 Ct. Cls., 511, 521.) Enlisted men of the insular force are in contemplation of law enlisted men or ap- prentices of the U. S. Navy, and therefore are entitled to the clothing bounty proWded by law for "enlisted men anfl apprentices of the Navy," and, where detained intheser\ice after expiration of their term of enlistment, to the one-fourth additional pay provided for by section 1422, Revised Statutes. (12 Comp. Dec, 189). In pursuance of the authority conferred by section 1509, Revised Statutes, the President on April 5, 1901, issued an Executive order pro- viding that "the Secretary of the Navy is authorized to enlist in the insular force, United States Navy, which is hereby established, not to exceed 500 Filipinos in the following ratings and at the rates of pay indicated * * *." [Art. R-4429, Navy Regs,, 1913] Although, under the foregoing Executive order the men are enlisted in what is designated as the insular force, U. S. Navy, they are never- theless enlisted men in and of the Regular Navy of the United States. The fact that they are attached to a part or branch thereof termed the insular force can not affect the conclusion j ust stated ; for said insular force was established under and by \Trtue of the statutes relating to and governing the Navy of the United States, and unless said insular force be a part of the Regular Navy there would exist no authority for the establishment of such force. (12 Comp. Dec, 189.) Men enlisted for vocational training'. — "In cases of dismemberment, of injuries to sight or hearing, and of other injuries com- monly causing permanent disability, the in- jured person shall follow such course or courses of rehabilitation, reeducation, and vocational training as the United States may provide or procure to be provided. Should such course prevent the injured person from following a substantially gainful occupation while taking same, a form of enlistment may be required which shall bring the injured person into the military or naval service. Such enlistment shall entitle the person to full pay as during the last month of his active service, and his family to family allowances and allotment as hereinbefore provided, in lieu of all other com- pensation for the time being." (War Risk In- surance Act of Oct. 6, 1917, sec. 304, 40 Stat., 407. ) [This section was rej^ealed by act of June 27, 1918, sec 10 (40 Stat., 620), and other pro- visions substituted therefor by section 2 of the same act (40 Stat., 617), allowing pay, etc., without enlistment.] Apprentices at navy yards not enlisted men. — Service as an apprentice in a navy yard is not 8er^'ice as an enlisted man within the meaning of the act of March 3, 1883 (22 Stat., 473), entitling officers to credit for pre- vious service in the Army or Navy. (Davis v. U. S.,28Ct. Cls.,21.) There was no statute authorizing the employ- ment of persons as apprentices in connection with navy yards, and whatever was done in that particular w^as under Na\'y regulations. In the year 1852 the Navy Department adopted certain regulations "for the admission of ap- prentices into the navy yards of the United States," under which the claimant became an apprentice. Those regulations (which were not the first on the subject) prescribed the manner in which a boy might become an ap- prentice in the navy yards by being examined before a board. The applicant had to be over fifteen and less than seventeen years of age. 538 The Navy. Pt. 2. REVISED STATUTES. Sec. 1417. possessed of a good character, and having the physical ability to perform the labor incident to thesituation. (Davis t;. U. S., 28 Ct. Cls., 21.) The regulations of 1852 [above referred to] were in force at the time the claimant became an apprentice, and were the authority on the part of the naval officer to enter into the agreement by which his relations were established and upon wliich he now seeks a benefit under the act of March 3, 1883 (22 Stat., 473). Theactof June 30, 1789 (1 Stat., 575), and all subsequent acts to and including the act of March 3, 1837 (5 Stat., 153), had reference to the employment of boys in the regular naval service on board ships and not their employment in the navy yards as pro\dded for in the regulations of 1852 and former regulations. (Davis v. U. S., 28 Ct. Cls., 21.) The relation between the defendants and claimant was established by the agreement providing for the apprenticeship of the claim- ant, which waa executed by his father and him jointly with the agent of the defendants, and which simply provided for the performance of duty ordinarily incident to an indentured apprentice. He waa not required to take an oath, perform any naval or military duty, but simply to well and truly serve the United States, be obedient to all persons in authority over him, and subservient to all laws and regu- lations that might be established for the govern- ment of navy yards. He was required to furnish his own tools, board, clothing, and medical attendance . The service which he was to perform was not subject to the restraints, in- conveniences, and powers incident to military or naval service, but such restrictions as are legally and ordinarily incident to the relation of master and apprentice. No statute of the United States had!^ provided for the enlistment of men or boys to be employed in the navy yards of the United States, and the regulations did not provide for any such enlistment, if that could be done by mere regulations. If the claimant had failed to perform his duty and had deserted from the service, it can not be said that he would have been amenable to the laws of war and liable to be shot for desertion. (Davis -y. U. S., 28 Ct. Cls., 21.) Section 1417 provides for the enlistment in the Navy of "apprentices and boys;" sections 1418 and 1419 provide for the enlistment of minors. Nowhere do we find in the statutes any reference to the service of boys in the navy yards spoken of as an enlistment in the Navy. The service which boys as apprentices were called upon to perform was on board ship. (Davis V. U. S., 28 Ct. Cls., 21; see also 4 Op. Atty. Gen., 89). In the absence of any law providing for the enlistment of boys into the Navy to be em- ployed as apprentices in the navy yards, the fact that claimant's connection with the service was founded on the ordinary contract of appren- ticeship, that he took no oath and was not sub- ject to the performance of any military duty or subject to the restrictions of military life, that he was not amenable to the highest obligation of a soldier — continued service, and that his whole duty was the result of a contract or agree- ment made by him and his father founded on the regulations of the Navy, it is determined. as a conclusion of law, that he does not come within the act of March 3, 1883, 22 Stat., 473. (Davis t;. U. S., 28 Ct. Cls., 21.) A militiaman, when brought into the service of the United States in accordance with law, is an "enlisted man on the active list" of the Navy within the meaning of laws providing for payment of a gratuity to the bene- ficiary of any enlisted man on the active list of the Navy in case of the latter'a death from causes not the result of his own misconduct. The active force of the Navy is increased by laws providing for the induction of the militia into the service of the United States. (See 23 Comp. Dec, 36. But see act June 4, 1920 (41 Stat., 824), which excludes from the benefits of death gratuity members of forces of the Navy other than the Regular Navy and Marine Corps.) Enlisted men of the Coast Guard. — The Navy is made up of and embraces its compo- nent parts; hence in law and in fact it em- braces the Coast Guard in time of war just as certainly as it does any other military force op- erating under the orders of the Secretary of the Navy. Accordingly the word ' ' Navy ' ' is broad enough to include the Coast Guard in time of war, service in the Coast Guard at such time is service in the Navy, and enlisted men of the Coast Guard in time of war are enlisted men of the Navy. However, the word ' ' Navy ' ' as used in a law, may have a broad or restricted mean- ing, depending upon the context. As used in the act of August 31, 1918, section 3 (40 Stat., 956), providing that "men registered under the provisions of this act who have served in the Navy of the United States shall, upon their own application, be permitted to reenlistin the naval or marine service of the United States with and by the approval of the Secretary of the Navy," it includes a registrant who served in the Coast Guard in time of war. (File 28798-773, Nov. 22, 1918.) Advancement of apprentices to warrant officers. — When section 1417, Revised Statutes, was reenacted in 1879 to read as above, special inducements were offered to honorably dis- charged boys to reenUst within three months after so discharged. (See sec. 1573, R. S.) These benefits, aa well as certain additional inducements, have since been made applicable to enUsted men or apprentices who reenlist within foiu- months after being honorably dis- charged. (See sec. 1573, R. S., as amended.) The provision in section 1417, as reenacted, limiting preference in appointment as warrant officers to such apprentices or boys who reen- list within three months after being honorably discharged has remained unchanged. By the Navy Regulations, 1913 (Art. R-3310), it is provided, with reference to appointments aa boatswains, gunners, machinista, and car- penters, that such appointments shall be made "only after competitive professional examina- tions," and that "when candidates from the naval service and from civil life possess equal qualifications, preference shall be given to those from the naval ser\dce." As to term of enlistment, see note to section 1418, Revised Statutes. As to appointment of warrant officers, see further sections 1405-1407, Revised Statutes, and notes thereto. 54641°— 22- -8.5 539 Sec. 1418. PL 2. REVISED STATUTES. The Navy. Sec. 1418. [Enlistment, age and term of.] Boys between the ages of four- teen and eighteen j-eai-s may be enlisted to serve in the Navy until they shall arrive at the age of twenty-one years; other persons may be enlisted to servo for a period not exceeding five years, unless sooner discharged by direction of the President. This section was expressly amended and re- enacted to read as above by act of May 12, 1879 (21 Stat., 3), as amended by act of Feb- ruary 23, 1881, section 2 (21 Stat., 338), the amendment made by the latter act con- sisting in substituting the word "fourteen" for ''(ifteen" as used in the former act. As originally enacted this section read as fol- lows: "Sec. 1418. Boys between the ages of sixteen and eighteen years may be en- listed to serve in the Navy until they shall arrive at the age of twenty-one years; other persons may be enlisted to serve for a period not exceeding five years, unless sooner discharged by direction of the President." [See § 1624; art. 19.]— (2 March, 1837, c. 21, s. 1, V. 5, p. 153; In re McNulty, 2 Lowell, 270.) Other amendments to this section were made by act of March 3, 1899, section 16 (30 Stat., 1008), which provided that " hereafter the term of enlistment of all enlisted men of the Navy shall be four years," and act of August 22, 1912 (37 Stat., 330), which provided that "the term of enlistment of all enlisted men of the United States Navy other than those who are enlisted during minority shall be foiu" years," and made further provision in the same act for ex- tension of enUstments, prior to expiration of the four-year term, for periods of one, two, three, or four years, and for the dis- charge of any enlisted man within thi'ee months before the expiration of his term of enhstment or extended enlistment, "without prejudice to any right, privilege, or benefit that he would have received, except pay and allowances for the unex- pired period not served, or to which he would thereafter become entitled, had he served his full term of enlistment or ex- tended enlistment." By act April 25, 1917 (40 Stat., 38), extension of minority enlist- ments in the Na\'y and Marine Corps was authorized under similar conditions as pro- vided by law for extending other enlist- ments. By act of August 29, 1916 (39 Stat., 560), it was provided that enlisted men who serve one year at sea shall, in time of peace, if_ they so elect, be given an honorable discharge without cost; and the same act (39 Stat., 580) authorized the furlough of enUsted men, without pay, for the imex- pired portion of enlistment, in lieu of dis- charge by purchase, subject to recall in time of emergency. So much of said act as au- thorized honorable discharges after one year's service at sea was repealed by act of March 4, 1917 (39 Stat., 1171). By act of August 29, 1916 (39 Stat., 586), it was pro- vided that the Secretary of the Na\'y shall establish regulations governing the term of enlistment of the enlisted men of the Flying Corps. By act of May 22, 1917, section 3 (40 Stat., 85), it was provided "that enlistments in the Navy and Marine Corps, during such time as the United States may be at war, shall be for four years, or for such shorter period or periods as the President may prescribe, or for the period of the present war." By act of July 11, 1919 (41 Stat., 134), it was pro\ided that "until June 30, 1920, enlistments in the Navy may be for terms of two, three, or four years, and all laws now applicable to four year enlistments shall apply, under such regulations as may be prescribed by the Secretary of the Navy, to enlistments for a shorter period with proportionate benefits upon discharge and reenlistment." By act of June 4, 1920, section 7 (41 Stat., 836), the provision of the act last quoted was reenacted without limitation as to time. Detention of men after expiration of enhstment, or their reentering to serve until their return to the United States, is authorized by section 1422, Revised Statutes. Detention of men after expiration of enlistment to make good time lost on account of injury, sickness or disease resulting from intem- perate use of drugs or alcoholic Uquors or other misconduct. (Act Aug. 29, 1916, 39 Stat., 580, as amended by act July 1, 1918, 40 Stat., 717.) Discharge of minors who swear falsely as to their age is required by the following pro- vision in the act of March 3, 1915 (38 Stat., 931): ''Provided, That hereafter no part of any appropriation for the naval service shall be expended in recruiting seamen, ordinary seamen, or apprentice seamen, imless in case of minors, a certificate of birth or a verified written statement by the parents, or either of them, or in case of their death a verified written statement by the legal guardian, be first furnished to the recruiting officer, showing applicant to be of age required by naval regulations, which shall be presented with the appUcation for enlistment; except in cases where such cer- tificate is unobtainable, enlistment may be made when the recruiting officer is con- vinced that oath of applicant as to age is credible; but when it is afterwards found, upon evidence satisfactory to the Navy Department, that recruit has sworn falsely as to age, and is under eighteen years of age at the time of enlistment, he shall, upon request of either parent, or, in case of their death, by the legal guardian, be released from ser\dce in the Navy, upon payment of full cost of first outfit, unless, in any given case, the Secretary, in his discretion, shall relieve said recruit of such payment." Provisions somewhat similar to this, but 540 The Navy. PL 2. REVISED STATUTES. Sec. 1418. applicable to the fiscal year only, had been contained in the annual naval appropria- tion act for previous years, under "Bureau of Navigation." Enlistment of minors under 14 years of age is punishable under section 1624, Re\Tsed Statutes, article 19, as amended. Oath of allegiance to be taken by enlisted men of the Navy is that which was prescribed for the Army by the law in force on March 3, 1899. (Act Mar. 3, 1899, sec. 25, 30 Stat., 1009.) The oath then prescribed for en- listed men of the Army was contained in section 1342, R. S., art. 2, as follows: "I, A. B., do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America; that I will serve them honestly and faithfully against all their enemies whomsoever; and that I will obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the rides and articles of war." Punishment of fraudulent enlistment is pre- scribed by act of March 3, 1893 (27 Stat., 716), amending section 1624, Revised Stat- utes, article 22. Reenlistment of men with special benefits within fom" months after their discharge is provided for by section 1573, Revised Statutes, and amendments noted there- under. See also section 1417, Revised Statutes, as amended. By act of August 29, 1916 (39 Stat., 590), it was provided that enlisted men who enroll in the Fleet Naval Reserve within four months after, their discharge from the regular service, and who reenlist in the regular service within four months after discharge from such reserve, shall have the same benefits as though they had reenlisted in the regular service within four months after discharge therefrom. Refund of enlistment bounty where men are discharged within six months of enlistment, for causes other than disability incurred in line of duty, is provided for by act of June 29, 1906 (34 Stat. , 556) ; and the Secretary of the Navy may require similar refund in cases where men are discharged during the first year of enlistment by request, for in- aptitude, as undesirable, or for disability not incurred in line of duty. (Act Mar. 2, 1907, 34 Stat., 1176.) The furnishing of such bounty on enlistment was authorized by act of March 1, 1889 (25 Stat., 781), and amendments thereto. (See sec. 1569, R. S.) Refund of uniform gratuity by members of the Naval Reserve Force severing their connection with the service without com- pulsion on the part of the Government is provided for by act of August 29, 1916 (39 Stat., 589), as amended by act of July 1, 1918 (40 Stat., 711). Term of enlistment in the Marine Corps is pre- scribed by section 1608 of the Revised Statutes and amendments thereto. Term of enlistment. — Section 1418 of the Revised Statutes, fixing the term of enlist- ment during minority in the case of persons en- listed in the Navy before arri^^ng at the age of 18 yeai's, and for not exceeding five years in the case of other persons, was amended by section 16 of the Na\'y personnel act of March 3, 1899, which provided "that hereafter the term of enlistment of all enlisted men of the Navy shall be four years." (5 Comp. Dec, 929.) The act of March 3, 1899 (30 Stat., 1008), makes the term of enlistment for all persons four years. (Thomas v. Winne, 122 Fed. Rep., 395). Section 1418, as amended by act of March 3, 1899, section 16 (30 Stat., 1008), provided that boys between 14 and 18 years of age may be en- listed in the Navy until they arrive at the age of 21, while other persons may be enlisted for a term not exceeding four years. (Ex parte Lisk, 145 Fed. Rep., 860.) There is no provision of law for the enlist- ment for four years of anyone under 18 years of age. However, where a minor of 15 years fraudulently enlists for a term of four years he may be held to serve out that term and need not be required with consent of his father to agree to remain in the service during minority. The enlistment is a valid one unless avoided by the United States. (File 24368-7, Feb. 14, 1912.) Prior to the enactment of March 3, 1899, section 16 (30 Stat., 1008), the enlistment of men in the Navy, under section 1418, was for a period not to exceed five years, but the enlist- ment period had been for three y^ars, and under section 1426 honorable discharges were granted to men enlisting for three years, and upon reenlistment for three years within three months after discharge they became entitled to the gratuity provided by section 1573. (16 Comp. Dec, 815.) Section 1418, Revised Statutes, required en- listments in the Navy to be for not exceeding five years, and section 1608 declared that en- listments in the Marine Corps should be for not less than five years. Thus it will be seen that the statutes fixed a maximum term of enlist- ment in the Navy, and a minimiun term of en- " listment in the Marine Corps, each at five years. At the same time, honorable discharges were granted to those who had fulfilled the three- year enlistment in the Navy (sec.1426, R. S.). By act of March 3, 1899, section 16(30 Stat., 1008), the term of enlistment in the Navy waa changed to four years, and by act of March 3, 1901 (31 Stat., 1132), enlistment in the Marine Corps was reduced to not less than four years. (In re Brykczjmski, 207 Fed. Rep., 813.) The laws relating to the granting of honorable discharges, and to extra pay on reenlisting after such discharges within a certain time, as well as the regulation granting an increase of month- ly pay on reenlisting within three months after an honorable discharge, were based upon en- listment for not less than three years. The in- crease in monthly pay for reenlisting is now fixed by law, instead of by Navy regulation (sec 1573, R. S., as amended by sec 16, Navy personnel act Mar. 3, 1899). Accordingly a man, having served out his previous enlistment of three years, so as to entitle him to an honor- able discharge and having enlisted for the regular term of four years within the time pre- scribed, comes within the operation of the new law and is entitled under his new enlistment to the four months' reenlistment pay and the Ml Sec. 1418. PL 2. REVISED STATUTES. The Navy. increase per month to the rate of pay he was receiving when discharged, as authorized by the amended section 1573, instead of three months' reenlistment pay and the addition of$l per month as uiuU-r the law and regulations prior to the passage of the Navy personnel act. (5("omp. Dec., 929.) Detention of men after expiration of enlistment. — Enlistments in our service are reciuired by law to be for a prescribed period, the last day of the term being as much fixed by the contract as the first. Consequently, unless there exists some law when the contract is en- tered into providing for a contingent prolonga- tion of the term; or unless the soldier before the term is up consents to an extension thereof, with the last day of the term his engagement necessarily expires. (15 Op. Atty. Gen., 161; 12 Comp. Dec, 342; compare Op. Atty. Gen., Feb. 27, 1922, noted below.) A man whose enlistment has expired, and in whose case there is no legal authority for retain- ing him in the service in point of law is entirely discharged, although no discharge certificate is issued to him. Nevertheless, if he voluntarily remain in a place subject to naval jurisdiction to await a certificate of discharge or for other purposes, he would be liable in a limited degree to the regulations necessary to the peace and subordination of the garrison, and might be imprisoned if necessary to prevent unlawful \iolence on his part, and to keep him until he could be placed in the hands of the proper civil authorities having jurisdiction to punish him. (U.S. 1,1. Travers, 28 Fed. Cas. No. 16537, noted more fully under Constitution, Art. I, sec. 8, clause 14, "Persons not subject to jurisdic- tion of Federal courts-martial.") It would seem that where a man has com- pleted his period of enlistment and earned an honorable discharge, if a certificate of discharge is inadvertently not issued at the time, it may thereafter be issued as of the date he was en- titled thereto, and his continuance in the service, under a purported extension of enlist- ment for four years, which is not valid as an extension, may be regarded as a reenlistment for four years. (File 7657-295, July 27, 1915; butseeComp.Dec, Aug. 14, 1915,174 S.and A. Memo., 3759; and compare file 7657-65, noted under sec. 1422, R. S., "Detention of enlisted man awaiting discharge papers.") When an enlisted man voluntarily continued to serve after expiration of his enlistment with- out being discharged and reenlisted, it will be held to be a continuance of his enlistment upon the same terms as before, but for no definite period. (26 Op. Atty. Gen., 319, noted more fully under sec. 1408, R. S., "Status of mates when not discharged upon expiration of enlist- ment.") An enlisted man, enlisted for minority, ex- tended his enlistment for periods aggregating two years. Such extension was not authorized in the case of persons enlisted for minority. He should therefore be considered as in the service under his original enlistment from which he has not been discharged and entitled to the same rate of pay thereunder as if no attempted extension of enlistment had been made, but he is not entitled to the additional pay allowed by section 1422, Revised Statutes. (Comp. Dec, June 6, 1914, 160 S.and A. Memo , 3255.) The contract of an enlisted man in the Navy calls for four years actual service — not for service during a term of four years. Nothing is said in the contract respecting continuity of the service, but, on the contrary, article 879, Navy Regulations [1905] provides that "enlisted men who are apprehended or who surrender themselves as deserters or stragglers from the Navy shall not be entitled to discharge until they have served out the period of their un- authorized absence." The Comptroller has said, with regard to this provision (12 Comp. Dec, 342): "I do not think that this require- ment has the effect of extending his term of enlistment, but requires that he shall be held in the service after the expiration of his term of enlistment." That this w^as not the intention of the regulation in question, however, would seem to be clear from its further provision: "This does not apply to those enlisted for the period of their minoritv." (File 3031-11, July 15, 1907.) "The Department decided, May 12, 1908 [file 2471-5], that the term of enlistment in the Navy having been fixed by law at four years, no authority existed for retaining en- listed men in the Navy after expiration of enlistment for the purpose of making up time lost by absence. Article 879, Navy Regula- tions, 1905, which required enlisted men of the Navy to serve out the period of their unauthor- ized absence before being entitled to discharge, was accordingly revoked by the Secretary of the Navy with the approval of the President." (File 26251-6297:2, July 10, 1913; compare Op. Atty. Gen., Feb. 27 ,1922, noted below.) "As enlistments in the Marine Corps are governed by the laws and regulations relating to the Navy, the Department holds that Marine Corps General Order No. 40, of October 19, 1909 [concerning the detention of marines after expiration of enlistment to make good time lost by unauthorized absence], is without sanction of and in fact contrary to the require- ments of law and that the practice of requiring men to make up time lost by absence either in accordance \Adth article 48 of the Articles of War or otherwise will immediately be discon- tinued." (File 26251-6297:2, July 10, 1913; compare Comp. Dec, Dec. 4, 1905, 58 S.and A. Memo., 30; and Op. Atty. Gen., Feb. 27, 1922, noted below.) A period of desertion must be deducted from the contract period of enlistment, and the latter accordingly extended until the man has fully served the term for which he contracted. The man's contract is to "serve" for a certain period and can not be perfonned by desertion. (Op. Atty. Gen.. Feb. 27. 1922, fi"le 26251-26615:8.) The Supreme Court of the United States has specifically held that the detention of enlisted men in the Marine Corps after expiration of enlistment is governed by laws relating to the Navy. [See notes to sections 1422 and 1621, Revised Statutes.] The fact that pay of the Marine Corps is assimilated by section 1612, Re- vised Statutes, to the Army, and that under certain circumstances enlisted men of the Army may by law be retained to make good time lost by unauthorized absence, does not mean that the 542 The Navy. Pt. 2. REVISED STATUTES. Sec. 1418- term of enlistment in the Marine Corps must be changed to conform to the conditions in the Army. (File 26251-6297:4, Aug. 19, 1913; see also file 26251-6297:6, Nov. 8, 1913; 26251-6287:7, May 18, 1914; Comp. Dec, June 3, 1914, 160 S. and A. Memo., 3250.) Article 879, Navy Regulations, 1905, author- izing the retention of enlisted men who axe apprehended or who surrender themselves as deserters or stragglers until they have served out the period of their unauthorized absence, was stricken from the Navy Regulations, with the approval of the President, on May 20, 1908. A man's enlistment expired February 9, 1908, while in desertion. Thereafter, he was con- victed of desertion and sentenced to a period of confinement. Prior to expiration of his con- finement he was inadvertently restored to duty on probation: Held, that the Secretary of tlae Navy, having convened the court and having approved and confirmed its proceed- ings, possessed the power to remit the for- feitures mentioned in its sentence, in whole or in part less than the whole, and could make such remission dependent upon any condition consistent with law (citing 13 Comp. Dec, 726); it is not necessary to decide in this case whether, in the absence of a regulation, the Secretary of the Navy may hold a man in service to make good time lost by desertion; in this case the prisoner was actually held in service /o?- duty, and while so held he was entitled to the pay of the rating in which he was held. (Comp. Dec, Nov. 20, 1908, 93 S. and A. Memo., 896.) An enlisted man serving sentence of court- martial was placed on probation. Dimng the probationary period his enlistment expired. He continued to serve, vohmtarily, without re- enlisting or expressly extending his enlistment. While in this status he committed an offense for which he was tried by court-martial and sentenced to imprisonment. Held, that the court-martial had jurisdiction and he is legally held to serve out the sentence, but that so much of the original sentence as remained un- executed shoxild be regarded as fully remitted, his conduct from the time he was placed on probation until the expiration of his enlist- ment having been satisfactory. (File 26251- 17942:2, May 5, 1919, citing 26 Op. Atty. Gen., 319, Comp. Dec, Nov. 20, 1918, 93 S. and A. Memo., 896, etc.) The contract of enlistment in the Navy is not merely for four years, but for four years and until discharged. "A soldier can not discharge himself," and imtil he has been discharged by competent authority his original contract con- tinues binding upon him. An examination of 15 Op. Atty. Gen., 152, 161 (above noted), shows that the question was not specifically presented to the Attorney General for deter- mination in that case, and was not thoroughly considered by him. Certainly, the Attorney General could not have meant to hold that an enlisted man would be justified in leaving his command immediately upon expiration of his enlistment, regardless of the exigencies of the service, or other sufficient cause which might, in the opinion of his superiors, justify his re- tention for a reasonable period. The Navy Regulations recognize that delays may occur in discharging men after the expiration of en- listment, by providing that the commanding officer "shall make all necessary efforts to pre- vent delay in discharging men whose terms of service have expired" (Art. 543, Navy Regs., 1909), and the Comptroller of the Treasury has re- peatedly decided that enlisted men are entitled to pay until their discharges are issued and de- livered, or until such action is taken as to make the man legally chargeable with notice of his discharge, notwithstanding that pay for service after expiration of enlistment may not be ex- pressly provided for by any statutory enact- ment. (See 2 Comp. Dec, 94, 95; 7 Comp. Dec, 391; and Comp. Dig., 1902, p. 146, "Dis- charge, time and place of taking effect.") Of course the commanding officer would not be justified in arbitrarily detaining an enlisted man without sufficient cause, and in such a case the man would be entitled to secm-e his release by force, if necessary, even to the point of taking the life of any one who might en- deavor to prevent him, as held by Mr. Justice Story, in U. S. v. Travers, 2 Wh. Cr. 509, 28 Fed. Cas. No. 16537. (File 26251-5447, Dec 8, 1911.) The regulations for many years have con- tained a provision that the pay of an enlisted man under treatment in a hospital on a foreign station "continues imtil he is regularly dis- charged from the service, even after his term of enlistment has expired." (File 26251-5447, Dec 8, 1911, citing art. 792, par. 7, Navy Regs., 1909; Comp. Dec, Aug. 18, 1903, 31 S. and A. Memo., 242. See also, art. R-3582 (7), Navy Regs., 1913.) An enlisted man may^ be detained in the service after the expiration of his enlistment for the purpose of disciplinary proceedings against him for offenses committed prior to the expiration of his enlistment; in such case, not having been discharged from his contract of enlistment, and being detained fo^" sufficient cause, the terms of his contract continue binding upon him and his status as an enlisted man of the Navy is unchanged. Should he, dining the period of such detention, leave the service without permission and with the ob- vious intention of not returning, he might be regarded as a deserter, but his offense would more properly be charged as breaking arrest, and escape. (File 26251-5447; compare note to sec 1422, II. S., and note to Constitution, Art. I, sec. 8, clause 14, "Persons subject to jurisdiction of Federal courts-martial." See also file 26509-259, Mar. 12, 1918, recommend- ing legislation for trial by court-martial of prisoners for offenses committed after expira- tion of enlistment. For other cases, see note to section 1422, Revised Statutes. Existing contracts of enlistment may be extended by Congress. — The decision rendered by the Supreme Court in Wilkes v. Dinsman (7 How., 88, 126) expressly held that an enlisted man is subject to any new laws which may be enacted for the better govern- ment of the Navy, even where such laws extend the period of his original contract of enlist- ment. The Attorney Genei-al, something more than 25 years after this decision of the Supreme Court, held that the term of enlistment could be extended only under authority of some law 543 Sec. 1418. PL 2. REVISED STATUTES. The Navy. which exiBts "when the contract is entered into." (15 Op- Atty. Gen., 152, 161.) The question presented to the Attorney General did not require any opinion as to the conditions under wliich the contract of enlistment might be extended beyond the original term, so the above quotation from his opinion is not to be accorded the weight due to a formal determi- nation of a doubtful question. (File 26251- 5447 Dec. 8 1911.) By act of June 3, 1916 (39 Stat., 187, sec. 31), it was provided that "all enlistments in the Regu- lar Army, including those in the Regular Army Reserve, which are in force on the date of the outbreak of war, shall continue in force for one year, imless sooner terminated by order of the Secretary of War, but nothing herein shall be construed to shorten the time of enlistment prescribed." By the Selective Draft Act of May 18, 1917, section 7 (40 Stat., 81), it was provided that "all enlistments, including those in the Regular Army Reserve, which are in force on the date of the approval of this act and which would termi- nate during the emergency, shall continue in force during the emergency unless sooner dis- charged; but nothing herein contained shall be construed to shorten the period of any existing enlistment." [In 23 Comp. Dec, 45, it was held that an enlisted man of the Marine Corps may lawfully be paid travel allowance on discharge only at the rate authorized by laws in effect on date of discharge, notwithstanding the fact that the law in force at the time of his enlistment au- thorized pajonent of such allowance at a higher rate; ancfin 23 Comp. Dec, 33, it was held that enlisted men of the Army must be demoted in rank when required by laws reorganizing the Army in order to comply with the pro\'isions of such laws reducing the number of men in the higher rank, notwithstanding that they are de8er\ing men and that their demotion is not believed by the War Department to be within the spirit of the new law.] Extension of enlistments in Marine Corps.— The act of August 22, 1912 (37 Stat., 331), authorizing enlisted men of the Navy, by their voluntary agreement, to extend their enlistmentsforaperiodofone, two, three, or four years "from the date of expiration of the then existing four-year term of enlistment," applies to the Marine Corps by virtue of section 1621, Revised Statutes, which makes the Marine Corps subject to the laws established for the government of the Navy; and the Supreme Court decision in the case of Wilkes v. Dins- man (7 How., 88), in which it was held that the law now embodied in section 1422, Re\'ised Statutes, authorizing the detention of persons enlisted for the Navy after the expiration of their enlistment under certain conditions, au- thorized the detention of enlisted men of the Marine Corps. The conclusion in this case might also be based upon the naval appropria- tion act of March 3, 1901 (31 Stat., 1132), pro- viding that "hereafter enlistments into the Marine Corps shall be for a period of not less than four years." In the absence of a law ex- pressly providing for the extension of enlist- ments in the Navy and made applicable to the Marine Corps by section 1621, Revised Stat- utes, it might well be argued that the extension of enlistments in the Marine Corps by voluntary agreement of the man concerned would be authorized under the foregoing enactment of 1901, which does not fix any maximum term of enlistment. (File 26507-214:8, Apr. 5, 1915; 23 Comp. Dec, 349; compare 23 Comp. Dec, 22; see also act Apr. 25, 1917, 40 Stac. 88, au- thorizing extension of minority enlistments in the Marine Corps.) Minors over 18 may be enlisted without consent of parents or guardians. — Under the act of Congress of March 2, 1837, section 1 (5 Stat., 153) [afterwards embodied in sections 1418 and 1419, Revised Statutes], a minor of the age of 18 can enlist in the Navy without the consent of his parents or guardian. (Rush v. Watson, 28 Fed. Cas. No. 16650a.) The enlistment of minors in the naval service above the age of 18 is valid, without the con- sent of the parents or guardian. (12 Op. Atty. Gen., 2.58.) The period at which persons reach their majority and become sui juris with respect to the ordinary affairs of life can not abridge the power of the General GoA^ernment to prescribe the rules and conditions under which volun- tary or compulsory services are to be rendered by citizens. (21 Op. Atty. Gen., 327.) The phrase "other persons" in the act of March 2, 1837 [section 1418, Revised Statutes], includes minors above 18, as well as men of full age. (21 Op. Atty. Gen., 327.) The enlistment of minors in the naval serv- ice is lawful and can not be set aside at the instance of their parents, except in so far as such enlistments are forbidden by Congress. (In re Dovle, 18 Fed. Rep., 369, citing U. S. v. Bainbridge, 1 Mas., 71 [Fed. Cas. No. 14497]; In re Roberts, 2 Hall, L. J., 192; Com. v. Barker, 5 Bin., 423; Ex parte Browne, 5 Cranch, C. C., 554 [Fed. Cas. No. 1972].) Neither section 1419, Revised Statutes, nor any other law requires the consent of parents and guardians for the enlistment of minors over 18 in the Navy. It is clear t;hat Congress has authorized the enlistment in the Navy of minors over 18, and that the consent of parents and guardians is not necessary to make the en- listment valid. (21 Op. Atty. Gen., 327.) If a statute authorizes a minor by enlistment to bind himself during his minority, he can bind hinself for a further period. (21 Op. Attv. Gen., 327.) Under sections 1418, 1419, and 1624 (art. 19), ReAdsed Statutes, relating to enlistments in the Navy, which prohibited the enlistment of boys under the age of 16 [now 14], but per- mitted the enlistment of boys between the ages of 16 and 18 [now 14 and 18] Avith the consent of their parents or guardian until they shall arriA^e at the age of 21, and proAdded for the enlistment of "other persons" for terms not exceeding fiA^e years, the consent of the parents or guardian of a minor over the age of 18 is not essential to his valid enlistment,^ and he can not be discharged from such enlistment by a court on a writ of habeas corpus at suit of his parents or guardian. (In re Norton, 98 Fed. Rep., 606.) 544 The Navy. PL 2. REVISED STATUTES. Sec. 1418. Section 1418 provides that boys between the ages of 14 and 18 may be enlisted to serve in the Navy until they shall reach 21; other per- sons may be enlisted to serve for a period not exceeding five years, etc.; section 1419 pro- \T.des that minors between 14 and 18 shall not be enlisted without the consent of their parents or guardians; section 1420 provides that no minor under the age of 14 shall be en- listed : Held, that a minor between the ages of 18 and 21 may be enlisted without the consent of parents or guardian, being included in the term ' 'other persons ' ' in sec tion 1418 . (Thomas V. Winne, 122 Fed. Rep., 395.) A minor who, at the age of 19, with the con- sent of his father, enlisted in the Navy has not the right, on coming of age, to demand his dis- charge under the rule which applies to hie ordinary civil contracts. (21 Op. Atty. Gen., 327, further holding that consent of parents or guardian is not necessary to enlistment of minors who are over 18. Compare Ex parte Brown, 4 Fed. Cas. No. 1972.) For other cases, see note to section 761, Re- vised Statutes. Minority enlistments in Marine Corps governed, by Navy laws. — The Marine Corps is part of the United States naval service, in which minora over 18 years of age may be enlisted, under sections 1608 and 1418, Re- vised Statutes, without the consent of their parents or guardians. The limitations of sec- tions 1418 and 1419 undoubtedly apply to en- listments in the Marine Corps, under section 1008; but these limitations do not aid the peti- tioner in this case, since the only restraint is in regard to enlistments of persons under the age of 18 years, while Corporal Doyle in the present case was between 19 and 20 at the time of his enlistment. (In re Doyle, IS Fed. Rep., 369.) The restrictions of section 1117, Revised Statutes, apply only to enlistments in the "Army" under Title XIV. (In re Doyle, 18 Fed. Rep., 369.) The Marine Corps is not an independent organization, but is a part of the Navy rather than of the Army; and sections 1418, 1419, Re\T.sed Statutes, which, taken together, authorize the enlistment of minors over 18 years of age to serve in the Navy without the consent of their parents or guardians, apply to enlistment in the Marine Corps as well; so that a minor who has enlisted in the Marine Corps when over 18 years of age will not be discharged from the custody of the officers of the Marine Corps in habeas corpus proceedings brought by his father. (Elliott v. Harris, 24 App. D. C, 11, overruling In re Shugrue, 3 Mackey (D. C.) 325, as being "in manifest conflict with the principle upon which the subsequent case of United States v. Dunn [120 U. S., 249] was decided by the Supreme Court of the United States.") The Marine Corps of the United States is not a part of the Navy, and enlistments therein are not governed by the statutes relating to enlist- ments in the Navy, but by regulations pre- scribed by the Secretary of the Navy, under whose government and control such corps is primarily placed; and such officer having pre- scribed in the published regulations of his de- partment that ' ' the regulations for the recruit- ing service of the Army shall be applied to the recruiting service of the Marine Corps as far as practicable," the enlistment of minors therein is governed by the statutory provisions relating to Army enlistments and no person under the age of 21 years can lawfully enlist without the consent of his parents or guardian, as required by Revised Statutes, section 1117. (McCalla v. Facer, 144 Fed. Rep., 61, citing and following In re Shugrue, 3 Mackey (D. C), 324, but over- looking the fact that the case cited had been overruled by the Court of Appeals of the Dis- trict of Columbia in Elliott v. Harris, 24 App. D. C, 11.) For other cases, see note to section 1621, Re- vised Statutes, covering status of Marine Corps; see also notes to sections 761 and 1422, Revised Statutes. Policy of Congress to encourage enlist- ment of minors.— The law [March 1, 1889, 25 Stat., 781] providing clothing bounty on en- listment, did not intend that the Secretary of the Navy should have such discretionary power with respect to furnishing the bounty as would enable him to furnish it in one case and in a.nother case decline to furnish it; but should be construed as imposing upon the Secretary of the Navy an imperative obligation and not merely discretionary power. The whole purpose of the act is to "encourage the enlistment of boys as apprentices in the U. S. Navy," and upon the Secretary of the Navy is imposed the duty of executing the provisions of the statute. (25 Op. Atty. Gen., 270.) Certificate required prior to enlistment of minor. — WTiere an applicant is "obviously" beyond 18 years of age, a written statement of the medical officer of the recruiting party to that effect should be accepted in lieu of the certificate required by the act of June 29, 1906. (File 1689-5, Aug. 25, 1906. The act cited prohibited enlistment of any applicant "unless a certificate of biith or written evidence, other than his own statement, satisfactory to the re- cruiting officer, showing the applicant to be of age required by naval regulations, shall be presented with the application for enlistment." The present law is contained in the act of Mar. 3, 1915, noted above, under this section.) Minor is "enlisted man." — A minor en- listed in the Navy din-ing the period of his minority is an "enlisted man" in the Navy within the meaning of the act of August 22, 1912 (37 Stat., 330), providing for the discharge of any enlisted man within three months prior to expiration of enlistment. (20 Comp. Dec, 429.) The statute in making provision for the enlistment of persona under age, makes it competent for any such person to bind himself by enlisting and in respect to that contract or enlistment he is to be regarded as an adult and competent to do all acts within the purview of the statute aa fully as if he were a person of full age. It has been decided that an enlisted man haa a right to make an agreement with the Government waiving his claim to travel allow- ance on discharge, when that contract ia made at the time he ia about to be discharged (citing Comp. Dec, Oct. 8, 1901, MS. Dec, vol. 19, p. 70). If the claimant is to be regarded as of full age in dealing with all matters connected 645 Sec. 1418. PL 2. REVISED STATUTES. The Navy. with his enlistment, and an adult can waive his right to travel allowance, it follows that he can do so. The power to enlist being conferred, all the incidental powers necessarily belonging to a person in that situation with reference to his enlistment naturally follow. (9 Comp. Dec, 5.) "Apprentice seamen may be enlisted be- tween the ages of 17 and 25. Those below 18 are enlisted during minority, or until they become 21 years of age. Those 18 years of age or over are enlisted for four years. There are several other rates in which those aa young as 18 may be enlisted. (Navy Regs., 1913, art. R-3525.) ^Tien enlisted apprentice .seamen are sent to training stations where they are given a special course of instruction, at the termination of which they are transferred to and become a part of the regular complements of cruising vessels in the Navy, and may be promoted to higher ratings. No distinction on account of duties or pay is made between the apprentice seamen who enlist during mi- nority and those who enlist for four years, nor is any such distinction made on account of their being under or over 21 years of age." (20 Comp. Dec, 409.) "The phrase, 'enlisted men,' has generally been used and understood to mean all those who enlist in the Navy, whether under or over 21 years of age, as distinguished from the officers who are appointed or commissioned. In other words, the entire enlisted force in the Navy are generally referred to and described as enlisted men." (20 Comp. Dec, 409.) The enlistment in the Navy of boys between 14 and 18 years of age until they shall arrive at the age of 21 years is provided for by section 1418, Revised Statutes, as amended by the act of J'ebruary 23, 1881 (21 Stat., 338). In any case when an apprentice seaman is discharged on account of expiration of his enlistment, he is 21 years of age, a man in the strict legal sense; [but see act Aug. 22, 1912, 37 Stat., 330, relative to discharge of men three months be- fore expiration of term for which enlisted]; he therefore comes within the law of June 29, 1906 (34 Stat., 553, 555), providing that "here- after enlisted men discharged on account of expiration of enlistment, shall receive in lieu of transportation and subsistence travel allow- ance of four cents per mile from the place of discharge to the place of enlistment, for travel in the United States;" and also within the meaning of the annual appropriation for travel allowance of "enlisted men" discharged on account of expiration of enlistment, although other appropriations make provision for trans- portation of "enlisted men and apprentice sea- men," mentioning them as if they were of separate classes. Apprentice seamen may be mentioned in the other items of the trans- portation appropriation because they are trans- ported before they are 21 years of age, and may also be discharged "on medical survey" be- fore they arrive at that age. (19 Comp. Dec, 591.) A minor who enlists in the Navy is compe- tent to designate a beneficiary under the act of May 13, 1908 (35 Stat., 128) [since amended by act of Aug. 22, 1912, 37 Stat., 329, and acts of Oct. 6, 1917, 40 Stat., 392, and Oct. 0, 1917, sec. 312, 40 Stat., 408], and amount of death gra- tuity in his case should be paid to beneficiary in accordance with such designation. (File 26543-38.) Minors enlisting with consent of parents or guardians have the same right to make agree- ment to reenlist or waiving transportation as other enlisted men, notwithstanding a request to the contrary made by the guardian in any case. (File 4682-04, May 31, 1904.) A minor may be tried by general court-mar- tial without the appointment of a guardian ad litem to defend him. This is in accordance with decisions of the civil courts under which a minor is amenable for crime and pleads with- out intervention and must suffer the penalty when found guilty. "A minor is tried like an adult. He may defend personally or by at- torney and no guardian ad litem is to be ap- pointed or appear for him;" although in one State, by statute, his defense is by guardian. In some decisions it has been expressly held that to defend in person or by attorney is the right of the minor, and that it is error to assign him a guardian and try the case upon a plea pleaded for him by the guardian. (File 26251-6020, July 7, 1913; G. C. M. Rec No. 25157.) When enlistment complete. — ^Vhere man signed shipping articles one day but did not take the oath of allegiance until the next, held, that while section 25 of the Navy personnel act of March 3, 1899 (30 Stat., 1009), requires an oath of allegiance to be taken, there appears to be no provision of law that postpones the taking effect of an enlistment until such oath- is taken; said man should, accordingly, be taken up for pay and rations from the date he signed the shipping articles, which is regarded as the date of his enlistment ; oath of allegiance should be executed as of the date on which it is taken. (File 1096, Mar. 30, 1905.) Men who applied for enlistment in the Marine Corps were examined and accepted at Denver, Colo., but took the oath of allegiance at Salt Lake City, Utah; held, that they were enlisted at Denver within the meaning of the law allow- ing mileage on discharge to place of enlist- ment. (File 7657-94, Dec. 31, 1910, constru- ing act Mar. 2, 1901, 31 Stat., 902.) The Comptroller of the Treasury decided, in accordance with the rulings of the Navy Department, that an enlisted man is entitled to pay from the date he presents liimself for service in the Marine Corps, signs the prescribed application, and submits to and passes a medical examination, although he does not take the oath of allegiance untU a later date and in a different city. (Comp. Dec, Mar. 8, 1911, file 7657-94:2, 17 Comp. Dec. 656, 121 S. and A. Memo., 1696; see also Comp. Dec, Mar. 4, 1911, file 26254-659.) It has been specifically decided by the Navy Department, the War Department, and the Comptroller of the Treasury that the taking of the oath of allegiance is not essential to the vaHdity of an enlistment. (File 19037-58, Apr. 6, 1917.) A man who signed the shipping articles, was fiu-uished and accepted transportation from Raleigh to Norfolk, was passed by the medical officer, was furnished subsistence and clothing 546 The Navy. Pt.2. REVISED STATUTES. Sec. 1418. outfit, and was actually assigned to duty, is legally and for all purposes an enlisted man in the Navy in all respects, notwithstanding that he has refused to take the oath of allegiance. Inasmuch as the law (act Mar. 3, 1899, sec. 25, 30 Stat., 1009), expressly states that the oath of allegiance "shall " be administered "to the offi- cers and men of the Navy," should the man in question be ordered to take the oath and then refuse to do so, appropriate disciplinary action might be taken against him for refusing to obey the lawful order of his superior. (File 19037-58, Apr. 6, 1917.) A man was honorably discharged, January 4, 1905; applied for reenlistment, January 5, 1905; was reported physically disqualified; remained on the vessel awaiting action of the Navy Department; his physical disability having been waived, was reenlisted as of January 5, 1905, but executed the oath of allegiance January 16, 1905, date the waiver was received on board: Held, that he was properly re- enlisted as of January 5, 1905, and is entitled to pay and rations from that date, provided he was actually held to service from that date. (File 1096, Mar. 30, 1905.) If the man was actually held to service while his physical condition was under considera- tion, he may be said to have been conditionally accepted and is entitled to pay for such service. The fact that the man in such a case was ac- cepted for service during the period awaiting action should be made to appear by the certifi- cate of the proper commanding officer before payment is made. (Comp. Dec, June 25, 1902, 5 S. and A. Memo., 65; see also file 1096, Mar. 30, 1905.) It is a rule that an enlistment paper can not be dated back so as to cover a period when the person was not actually in the service ; he must be actually accepted for service; in which event his enlistment paper may be dated back to cover the period of such service if it was not made out at the time the party was so accepted. (Comp. Dec, June 25, 1902, 5 S. and A. Memo., 65; see also file 1096, Mar. 30, 1905.) Plaintiff signed an agreement "to serve for a period of three years from the date of * * * being mustered into the United States service." Plaintiff then refused to go to camp, was arrested, taken to camp of rendezvous, and, by order of the commander, confined for several days. On release, brought suit for damages: Held, the words "enlist" and "enlistment" in the law, as in common usage, may signify either the completed fact of entering into the military service or the first step taken by the recruit toward that end . The present question is not one of breach of contract but change of status. The plaintiff was not a soldier, nor subject to any military authority or discipline as such. The statutes seem to assume the mustering of a recruit into the service as the point at which the right to exercise military restraint over him begins. The court is not, however, prepared to say that actual submis- sion as a soldier to a commissioned officer would not of itself be sufficient; still less, that a recruit of full age who had actually served or received money from the Government could be allowed to dispute legality of the enlist- ment. But the mere promise to serve from a future date, to be fixed only by performance of a distinct act, is not sufficient to change state of a citizen into that of a soldier. (Tyler v. Pomeroy, 8 Allen (90 Mass.) 480.) A seaman who had been examined by a sur- geon and passed through all the necessary steps at a naval rendezvous, signing shipping articles, and received orders to go on board re- ceiving ship, but who, on reaching receiving ship was found to be intoxicated and sent away until he should become sober, and who, before returning, was enticed away by the defendant, held, not to be an "enlisted sea- man" because he had done no duty, been paid no money, and was not entitled by the regu- lations to any pay until passed on the receiv- ing ship. (United States v. Thompson, 28 Fed. Cas. No. 16491.) Man applied for enlistment in the Marine Corps, and after signing declaration and under- going medical examination, failed to report to complete enlistment, but enlisted in the Navy. Upon report of the facts to the Navy Depart- ment, held, tnat the man would be retained under his enlistment in the Navy, as it other- wise appeared that he was a desirable person, and that no action would be taken to recover from him the cost of his medical examination for the Marine Corps. (File 7657-58.) Recruits detained at the place of recruiting, if said place is not a "naval station" within the meaning of the act of January 30, 1885 (23 Stat., 291), (authorizing rations or commuta- tion thereof for enlisted men), are entitled to be subsisted from the appropriation "Provi- sions, Navy," provided they actually enlisted and became in fact enlisted men of the Navy at such place. If their enlistments are not completed at the place of recruiting, or if they are only held together tentatively as enrolled persons applying to enter the naval service, they may be furnished subsistence from appro- priation "Transportation, recruiting, and con- tingent." (7 Comp. Dec, 408.) Under this decision, applicants for enlistment who have passed the physical and other examinations and are held together at substations awaiting the arrival of the recruiting officer to adminis- ter the oath and complete their enlistment, are entitjed to be subsisted from the appropriation " Recruiting, Na-\dgation." (Comp. Dec, Aug„ 30, 1904, 43 S. and A. Memo., 419.) Certain applicants signed papers agreeing to enlist in the Marine Corps, and without being accepted were transported to other cities for the purpose of being examined to determine their fitness. Upon arrival it was discovered that the applicants had concealed former ser\'ice in and dishonorable discharge from the Navy. Without being enlisted, they were confined by the commanding officer, for varying periods, approximately two months in one case, with a view to causing their arrest by the civil authorities for fraudulently ob- taining Government transportation, subsist- ence, etc. Held, that the men in question were civilians, and their confinement by officers of the Marine Corps was without legal authority or justification, and might expose such officers to prosecution, both civilly and 547 Sec. 1419. Pi. 2. REVISED STATUTES. The Navy. criminally, for false imprisonment. (File 7G57-180, June 4, 1913, quoting U. S. v. Travers, 28 Fed. Cas. No. 16537, noted under Constitution, Art I, eec. 8, clause 14, "IV. Jurisdiction of Courts-Martial." Followed file 28909-191, Jan. 21, 1919.) "In order to become a soldier of the United States Army — i. e., in order to become a fully enlisted man — the party must first enlist by signing the prescribed application, and he must then be accepted and sworn into the service by the proper officer." (Coe v. U. S., 44 Ct. Cls., 419, 427; Union Pac. R. Co. v. U. S., 52Ct. Cls. 226.) Applicants for enlistment are in no way connected with the military organization or any movement of the same, and may never become so. _ Such persons have not changed their status in life from that of ordinary citizens to that of a soldier and are not amenable to military jurisdiction. They are not members of the military organization and therefore are not included within the term "troops of the United States." (Union Pac. R. Co. v. U. S., 52 Ct. Cls., 226; 249 U. S., 354.) De facto enlistment. — See note to section 1426, Revised Statutes, under "Honorable discharge of de facto enlisted man." See also cases noted above, under "Detention of men after expiration of enlistment." Errors in enlistment. — Where a minor over 18 years of age was enlisted to serve during nainority, contrary to the provisions of article 931, Navy Regulations, 1905, and declined to have the error in his enlistment corrected, he should be discharged on account of illegal enlist- ment. (File 5731, Sept. 14, 1906; compare file 24368-7, Feb. 14, 1912, noted under sec. 1419, R. S., "Consent required for enlistment.") A recruit at time of enlistment gave his date of birth as January 9, 1879, making his age 18 years. In three subsequent enlist- ments he renewed his former statement as to his date of birth, verifying same by oath on each occasion. Thereafter, while serving as a warrant officer, he reported to the Navy De- partment that his correct date of birth was January 9, 1881; that he had only a short time previously discovered this; and inclosed an affidavit purporting to be signed by his mother in support of his statements. Held, that while a person's statement as to his age is neces- sarily hearsay evidence, it is universally admitted by the courts as competent. Never- theless, such hearsay evidence is not con- clusive, and the testimony of one's mother, substantiated, as in this case, by an apparently bona tide entry in the family Bible, would certainly appear to be better evidence. The credibility of the new evidence, however, is a matter which should be carefully considered, especially as it is not incumbent upon the department to decide the question and change its official records in the absence of good reasons, which should be made to appear. Accordingly, the officer should be required to give liia reasons for desiring the department's records changed, and ex])lain why he did not, previous to his enlistments, obtain from his mother the date of his birth, or consult the family Bible. His reasons and explanations would in all probability assist in determining the credi- bility of his evidence, and enable the depart- ment to take such action in the premises as might appear just and desirable. (File 24368- 9, Nov. 22, 1913.) Man applied for enlistment in the Navy, but did not sign the shipping articles; no shipping articles were ever made out for him; the offi- cer supposed to have enlisted him did not sign the service record in his case; he reported for duty, served as a machinist's mate second class, and presumably received pay and allow- ances as such; he now desires to be released from the service: Held, that the error in this case was the error of the Government and not the error, mistake or fraud of the man; that the most which can be held is that he enlisted in the Navy upon an implied contract of en- listment but for no definite period and if he now refuses to execute a formal contract and demands his release, and there are no charges pending against him, and he is not being held under sentence of court-martial, he should forthwith be discharged. (File 7657-882, May 2, 1919.) A recruit over 18 years enlisted for minority, giving erroneous date of birth. He reenlisted, giving correct date of birth, substantiated by a birth certificate. Held, that the original enlistment was illegal, it being required by law and regulations that persons 18 years of age or over be enlisted for a term of four years. Held further, that while original enlistment was illegal, it was voidable only, and not void, and having been fully executed and terminated by an honorable discharge, the man is entitled to all the benefits thereof as if it had been a legal and valid contract. (File 7657-360, May 9, 1916.) Where a minor signed a contract of enlistment reading, "I oblige and subject myself to serve during minority, until January 1, 1915," the legal effect of the contract was to bind him to serve until he arrived at the age of 21 years, which the evidence in this case shows would be January 1, 1916. The date on which he would attain his majority, given in the contract of enlistment and consent of parents as January 1, 1915, must be rejected as an error in com- putation. Since the man stated that he was informed by the recruiting officer that his enlistment would expire January 1, 1915, wliich statement is confirmed by the date given in the shipping articles, it would be proper to ^ve him his discharge at once, but if he desires the benefits of a discharge by reason of expiration of enlistment, he would have to serve until Januarv 1, 1916. (File 7657-273, Jan. 16, 1915; C. M. O. 6, 1915, p. 11.) Sec. 1419. [Enlistment, minors, consent of parents and guardians.] Minors between the ages of fourteen and eighteen years shall not be enlisted for the naval service without the consent of their parents or guardians. 548 The Navy. PL 2. REVISED STATUTES. Sec. 1419. This section was expressly amended and re- enacted to read as above by act of May 12, 1879 (21 Stat., 3), as amended by act of February 23, 1881, section 2 (21 Stat., 338), the amendment made by the latter act con- sisting in substituting the word " fomteen " for " fifteen " as used in the former act. As originally enacted this section read as fol- lows: "Sec. 1419. Minors between the age of sixteen and eighteen years shall not be enlisted for tlie naval servdce without the consent of their parents or guardians." [See section 1624; article 19.] — (2 Mar., 1837, 0. 21, s. 1, V. 5, p. 153. 3 Mar., 1865, c. 79, s. 18, V. 13, p. 490.) The discharge of minors who swear falsely as to their age is required by act of March 3, 1915, noted imder section 1418, Revised Statutes. The pimishment for fraudulent enlistment is prescribed by act of March 3, 1893 (27 Stat., 716), amending section 1624, Revised Stat- utes, article 22. The punishment of officers who knowingly en- list "any minor between the ages of four- teen and eighteen years without the con- sent of his parents or guardian, or any minor under the age of fourteen years," is prescribed by section 1624, Revised Stat- utes, article 19, as amended. "The register of wills [of the District of Colum- bia] shall prepare papers in connection with appointment of guardians to enable indigent boys to enlist in the United States Navy as provided by law, without making any charge therefor." (Act Mar. 3, 1891, 26 Stat., 10G3.) Consent required for enlistment. — The consent of the mother would not be a sufficient compliance with the terms of this section where the father is living, although it is claimed that the father is working in a remote part of the State where he can not be reached by mail, and that he would undoubtedly consent to the enlistment if consulted. (File 7657-293, Jime 19, 1915.) "The consent of the father is necessary ex- cept where the mother or other person is the legal guardian of such minor." (File 7657-293, June 19, 1915.) Where the father and mother of a minor, 17 years of age, are both dead, and no legal guar- dian has been appointed, held that neither the stepmother nor sister of said minor could legally consent to his enlistment unless first legally appointed as guardian. (File 7657- 293:3, Aug. 21, 1915.) Where the applicant's father and mother are both living, but the father has deserted his wife and is not contributing to the child's sup- port, held, that the consent of the mother, who has not legally been appointed guardian of the applicant, can not be accepted as sufficient, but that upon the facts stated the consent must be signed by the father. (File 7657-293:3, Aug. 21, 1915.) "If the recruiting servdce is embarrassed by the requirements as to consent in the cases of minors, the remedy must be sought in an amendment of the statutes by Congress, as such considerations can not justify administra- tive officers in departing from the plain lan- guage of the law as it exists. In other words, the settled maxim that it is the province of courts to construe laws and not to make them applies to the fullest extent to the action of executive officers." (File 7657-293:1, July 29, 1915.) Where a minor during the lifetime of hia father had a guardian appointed to sign his con- sent papers upon enlistment, and the father demanded the boy's release on the groimd that he had not consented to the enlistment, held, that the Navy Department can not go behind the action of the court to inquire into the legality of the guardian's appointment, and that the enlistment was accordingly valid. (File 3956, Jan. 25, 1906; see also file 7657-207, Nov. 7, 1913.) _ Minor enlisted in the Naw ^Yith consent of his father after his mother had instituted pro- ceedings against the father for divorce and care and custody of the minor child. Held, that en- listment was illegal, the minor being under the jurisdiction of the court pending termination of the proceedings, and his care and custody having been awarded to his mother two weeks after his enlistment. (File 9750-04, Nov. 30, 1904.) _ A minor enlisted in the Navy for ioMi years when 15 years old, alleging thathe was 18 years old. To straighten out his record he afterwards submitted the consent of his father. Question was presented whether it would be legal to accept the e\idence and retain the minor under his foiu--year enlistment (there being no pro\dsion of law for the enlistment for four years of any one under 18 years of age), or whether it was necessary to secure the agreement of the father and boy for the latter to remain in the Ber\ice during minority. Held, that enlistment was a validone unless avoided by the United States, and it would therefore be legal to retain the boy under his four-vear term of enlistment. (File 24368-7, Feb. 14, 1912. Compare note to sec. 1418, R. S., "Errorsin enlistment.") A minor under 18 years, father and mother both dead, enlisted in Na\y for minority with consent of his aunt, who made oath that she was the sole legal guardian of the recruit, although in fact she was not his legally appoint- ed guardian. Thereafter, the minor's brother- in-law was appointed his legal guardian and objected to his "retention in the service be- cause of under-age enlistment." Held, that minor should be discharged ^vithout prejudice to his right to reenlist if desired when he at- tains the required age; that the fact that the guardian was appointed after the minor's en- listment is not material, the enlistment ha^■ing been without the consent required by section 1419; and that, the recruit not ha\ing sworn falsely as to age, it does not appear that he was guilty of fraud. _ (File 7657-207, Nov. 7, 1913.) This same holding applies in a case where the minor swore falsely as to his age at the time of enlistment, except perhaps as to prejudice regarding reenlistment. (FUe 7657-559, Feb. 16,1918). A minor enlisted Avith the consent of a party who made oath that she was the sole legal guar- dian of the recruit. Thereafter, another party made application for discharge of the minor, forwarding papers showing that said appHcant 549 Sec. 1419. Pt.2. REVISED STATUTES. The Navy. was appointed as guardian for the minor some months after his enlistment. Held, that the minor should not be discharged upon applica- tion of a guardian appointed after hia enlist- ment unless satisfactory evidence is produced to establish that the party who consented to his enlistment was not his legal guardian at the date of said enlistment. (File 7657-332, Dec. 29, 1915.) To satisfy the requirements of law, the con- sent of the father, mother, or legal guardian of the minor must be furnished. The consent of parent or guardian may be executed before an officer of a court of record having custody of its seal, a notary public, justice of the peace, or other officer authorized to administer oaths for general purposes, or before an officer of the Navy or Marine Corps in accordance with the act of March 3, 1901 [see note to section 183, Re- vised Statutes]. If such officer (other than an officer of the Navy or Marine Corps) is not re- quired by law to have and use a seal, his official character, signature, and term of office should be certified by the proper officer, State, county, or city, under his official seal, unless such cer- tificate has already been filed in the Navy Department for general reference. (File 2757-5, June 15, 1906.) The consent of both parents is not neces- sary to the enlistment of a minor under 18 years of age, but in such case the consent of the father is sufficient. (File 26806-142, Oct. 16, 1916.) False and fraudulent consent papers executed before notary. — A notary pubKc may be prosecuted for violation of section 31 of the Federal Criminal Code (act Mar. 4, 1909, 35 Stat., 1094) where he permitted an applicant to sign in his presence the consent papers for his enlistment in the name of his mother, and then falsely certified concerning the appearance of the mother before him. (See file 7657-299.) For other cases, see file 8205-2, October 17, 1907; 5954, October 18, 1906; file 7657-156, July 24, 1912. Fraudulent enhstment of minor in violation of this section is not void, but voidable. — It is well settled that under this section the enlistment of a minor without the consent of his parents or guardian, while valid as to the minor, is voidable at the instance of the parents or guardian, and, upon application of the parents or guai'dian, the ci\al courts will, by habeas corpus proceedings, direct the imme- diate discharge of the minor under such circum- stances, unless disciplinary proceedings have been commenced against him by the naval au- thorities for fraudulent enlistment or other of- fense. (File 7657-207, Nov. 7, 1913.) Section 1419, as amended by act of February 23, 1881, is for the protection of the parents or guardian; and an enlistment in \dol at ion thereof IS valid as to the minor, and voidable only by the parent or guardian before the minor arrives at the age of 18 years. (U. S. ex rel. Hendricks v. Pendleton, 167 Fed. Rep., 690.) A minor enlisted in the Navy, although with- out the consent of his parents and in violation of the statute, is punishable for breach of discipline and cannot be discharged on habeas corpus at suit of his parent while undergoing such pun- ishment. (U. S. ex rel. Hendricks v. Pendle- ton, 167 Fed. Rep., 690.) WTiere a minor under the age of 18 years en- listed in the Navy without the consent of his father, then living, on the minor's fraudulent representation that he was over 21 years of age, such enlistment was not void as to the minor, but was voidable only at the instance of his father. (U. S. v. Reaves, 126 Fed. Rep., 127, reversing Ex parte Reaves, 121 Fed. Rep., 848, which held that section 1419, as amended, de- clares a public policy, and the enlistment of a minor under the age of 18, without the consent his father, is void from the beginning as against the father, and gives the minor no status in the naval service which can be asserted by the United States to deprive the father of the custody and control of his son after he has re- gained the same, or which renders the son pun- ishable by court-martial for desertion in peace- ably lea\Tng his ship and returning to his father with the latter 's approval.) The civil couits should not interfere by habeas corpus to discharge a minor under 18 years of age who has been enlisted in the naval ser\dce with- out the consent of his parents or guardians, if at the time of presentation of the petition for the writ the minor is under arrest and held for trial by court-martial on a charge of desertion or fraudulent enlistment or other charge cogniza- ble by a naval court. (Dillingham v. Booker, 163 Fed. Rep., 696; compare Ex parte Baklev, 148 Fed. Rep., 56, affinned 152 Fed. Rep., 1022; Ex paite Lisk, 145 Fed. Rep., 860: and In re Falconer, 91 Fed. Rep., 649.) The appellee, William Booker, did enlist as an apprentice seaman, and did serve as such until he deserted. It may be admitted that he fraudulently enlisted; still he was both de facto and de jure in the Navy until discharged there- from by operation of law, and while he was such a seaman he was subject to the rules and regula- tions of the Navy and liable to be tried and pun- ished for any infraction of the laws relating thereto. To hold otherwise would make enlist- ment a farce, would destroy discipline, and offer a premium for desertion. It will not do to hold that he cannot be punished by court-mar- tial for crimes committed when he was in the naval service simply because his parents did not consent to his enlistment. The lack of such consent will necessitate his discharge from the service, but it will not absolve him from pun- ishment for the crimes he committed when in the serAdce. (Dillingham v. Booker, 163 Fed. Rep., 696.) Section 1624, Revised Statutes, pro\ddes for the government of the United States Navy, and article 8 thereof provides that such punishment as a court-mai'tial may adjudge may be infUcted on any person in the Navy who deserts there- from. \Vhere a minor between the ages of 14 and 18, without the consent of his father, then living, enlisted in the Nav-y, and received the usual pay from the date of his enlistment until after he deserted, was arrested and detained as a deserter, he could not be discharged from cus- tody of the naval authorities on a writ of habeas corpus sued out by his father, though the latter was entitled to demand his son's release from the Navy as soon as he had answered and satis- 550 The Navy. Pt. 2. REVISED STATUTES. Sec. 1420. fied the charges for desertion and fraudulent enlistment, then pending against him. (U. S. V. Reaves, 126 Fed. Rep., 127, reversing 121 Fed. Rep., 848.) For other cases, see note to section 761, Re- vised Statutes, and see note to Constitution, Ar- ticle I, section 8, clause 14, under "IV. Juris- diction of courts-martial." Pay and allowances under fraudulent enlistment. — A marine enlisted without con- sent of his parent, stating that he was 21 years of age; subsequently, his father applied for his discharge, claiming that he was onl^ 17 years of age, and had enlisted without his parent's consent. The Navy Department refused to dis- charge him, deciding to accept the age given by him at the time of enlistment ; his father brought habeas corpus proceedings, and he was ordered discharged by the court: Held, that this was a judicial determination that his enlistment was fraudulent, and he is not, therefore, entitled to pay, travel allowances, or other allowance un- der said enlistment. (13 Comp. Dec, 817.) Pay actually received by an enlisted man for services during a fraudulent enlistment can not be recovered from him. (12 Comp. Dec, 445.) The contracts were voidable and not void, and until rescinded by the action of the Gov- ernment any proper payments made by the disbursing officer must be considered as legally made, and he should be entitled to credit for the same. (11 Comp. Dec, 712; file 4640, Apr., 1906.) A fraudulent enlistment is still an enlist- ment, and a man so enlisted is de facto in the service, and therefore a sentence involving loss of pay may be approved. (File 5624, Feb. 17, 1896.) Pay continues after conviction, unless for- feited in whole or in part bv sentence. (File 26254-279.) An apprentice discharged for fraudulent en- listment is entitled to such pay as he may have received, but all pay and allowances accrued and unpaid at the time of discovery of the fraud should be checked as forfeited. (File 2792-01, Jan. 15, 1902; see also Comp. Dec, Aug. 12, 1897, 4 Comp. Dec, 54.) A person convicted by court-martial of fraud- ulent enlistment in the Navy and the receipt of pay and allowances thereunder, and sen- tenced to be dishonorably discharged from the service, is not entitled to any arrearages of pay which accrued prior to conviction. It is not necessary that this pay should have been in- cluded in the sentence of the court, since the claimant never acquired title thereto, because of the rescission of the contract of enlistment. The Navy Department, by proceeding against the claimant through a court-martial and im- posing a sentence of discharge from the service, has taken advantage of the fraud to rescind the contract of enlistment. (4 Comp. Dec, 54; file 26251-3352:1, May 19, 1910; but see file 26254-279, noted above, and 19 Comp. Dec, 470, noted under sec 1420, R. S.) For other cases, see note to section 1420, Re- used Statutes. Sec. 1420. [Enlistment, prohibited classes.] No minor under the age of fourteen years, no insane or intoxicated person, and no person who has deserted in time of war from the naval or military service of the United States shall be enlisted in the naval service. This section was expressly amended and reen- acted to read as above by act of August 22, 1912, section 2 (37 Stat., 356). As originally enacted this section read as fol- lows: "Sec. 1420. No minor under the age of sixteen years, no insane or intoxi- cated person, and no deserter from the naval or military service of the United States shall be enlisted in the naval serv- ice."— (3 Mar., 1865, c. 79, 8. 18. v. 13, p. 490.— U. S. V. Bainbridge, 1 Mae., 71; U. S. V. Stewart, Crabbe, 265.) It had previously been amended and reenacted by act of May 12, 1879 (21 Stat., 3), which changed the word "sixteen" in the origi- nal section to read "fifteen " ; and was there- after amended by act of February 23, 1881, section 2 (21 Stat., 338), the amendment made by the latter act consisting in sub- stituting the word ' 'fourteen " for ' 'fifteen " as used in the previous amendatory act. The punishment of officers who knowingly enlist persons in violation of this section is prescribed by section 1624, Revised Stat- utes, article 19, as amended. Enlistment of pardoned deserter. — ^The pardon of a convicted deserter from the Navy blots out his offense, and he may legally be reenlisted, notwithstanding the provisions of sections 1420 and 1624 (art. 19), Revised Stat- utes, prohibiting the enlistment of deserters in the naval service. (26 Op. Atty. Gen., 617; overruled by 31 Op. Atty. Gen.,_ 225, noted below. See also note to Constitution, Art. II, sec. 2, clause 1, imder "III. Power to pardon offenses against the United States.") Sections 1420 and 1624, article 19, Revised Statutes, as amended, relate to the general or- ganization and efficiency of the Navy; they affect only incidentally particular classes of individuals, and obviously are not intended as punishment for offenses. They place deserters in the same category with minors, insane per- sons, and intoxicated persons, as not qualified for the naval service. Accordingly, held that a pardon does not remove the disqualification attached to the fact of desertion by Revised Statutes, sections 1420 and 1624, and that a person who has deserted in time of war from the naval or military service of the United States is not eligible, after pardon, for reen- listment in the naval service. (31 Op. Atty. Gen., 225, overruling 26 Op. Atty. Gen., 617, noted above.) Enlistment of deserter who has not been convicted. — See note to Constitution, Article I, section 9, clause 3, under "Bill of attainder"; see also sections 1996 and 1998, Re\ised Statutes. 551 Sec. 1420. Pt. ?. REVISED STATUTES. The Navy. No one who has already been in the naval or military service of the United States shall be enlisted without showing Ms discharge there- from. (Art. 1^3524 (3), NaA^ Regs., 1913.) Section 1420, Reused Statutes, prohibits the enlistment of deserters at large as well as con- victed deserters. (File 7657-132, Feb. 17, ini2.) Pay and allowances of deserter -wrho fraudulently enlists. — The fraudulent en- listment of deserters may be waived by the Government and the deserters continued on duty in the Na\'y and allowed the pay of their grades. If tried by court-martial for the offense, they are entitled to so much of their pay as is reserved from forfeitiu^e by sentence of the court, and when restored to duty are entitled to the pay of their grades. (19 Comp. Dec, 470.) It is well settled that a fraudulent enlistment is not void, but voidable at the option of the Government, and this is based upon the gen- eral principle of law that when a contract has been procured by fraud it may be avoided by the innocent party upon the discovery of the fraud, but if the innocent party proceeds with the contract and accepts service under it after the discovery of the fraud, he is bound to pay for such services. (15 Comp. Dec, 614.) Whether a man securing his enlistment by fraud shall be discharged for that reason or re- tained in the service rests in the sound discre- tion of the executive officers. If he is to be dis- charged for thefraud , no further paymentsshould be made; if he is to be retained in the service, credit should be given him and payments made as though no fraud had occurred in his enlist- ment. (Comp. Dec, Apr. 29, 1903, 24 S. and A. Memo., 187; see also 15 Comp. Dec, 614; 14 Comp. Dec, 267.) For other cases see note to section 1419, Re\-ised Statutes. Enlistments in violation of this section are void, and not merely voidable. — The fraudulent enlistment of a deserter at large is void ab initio under the provisions of section 1420, Revised Statutes, which section appUes to deserters at large as well as convicted desert- ers. (File 7657-132, Feb. 17, 1912; see also Hoskins v. Pell, 239 Fed. Rep., 279..) [Note: By section 1420, Revised Statutes, Congress has placed on the same footing, with- out discrimination or distinction, the various classes of persons who are embraced within the prohibition of that section, namely: 1. Minora under the age of 14 years; 2. Insane Of intoxicated persons; and 3. Deserters in time of war from the naval or mihtary service of the United States. All alike are placed under the same disqualification, and it is impos- sible to distinguish in this connection between a minor, an insane or intoxicated person, and a deserter in time of war. (See U. S. v. Cotting- ham, 1 Rob. (Va.), 633.) While the enlistment of an insane or intoxicated person might have been absolutely void, even in the absence of a direct prohibition against the enlistment of such persons, the fact that minors under the age of 14 years and deserters in time of war are classed with insane or intoxicated persons in the same provision is a strong indication that it was the purpose of Congress to place them under the same absolute disqualification as to enlistment. [A marked distinction will be noted between the language of section 1419 — erdistments in violation of which section are held to be merely voidable and not absolutely void — and the lan- guage of section 1420. The former section does not absolutely prohibit the enlistment of persons between the ages of 14 and 18 years, but by its terms expressly permits the enlistment of such persons, although making it a condition that such minors have the consent of their parents or guardians. In other words. Congress has no objection to the enlistment of minors above the age of 14, but on the contrary has expressed its willingness that such persons should be enHsted, merely providing, for the benefit of parents or guardians, that their consent must be secured in cases where the minor is over 14 but under 18 years of age. It necessarily follows that if the parents or guardians of a minor between 14 and 18 years make no ob- jection to his serving, the enlistment may be treated by the Government as valid, even though their consent was not given at the time of enlistment; or, if they make objection to the minor's continuing in the service and apply for his discharge this does not invalidate the portion of the enlistment which has actually been served. (See In re Morrissey, 137 U. S., 157, Dillingham V.Booker, 163 Fed. Rep., 696, also other cases, holding that a minor fraudu- lently enlisted is not only de facto but de jure in the service.) [On the other hand, section 1420 expressly prohibits the enlistment of certain classes of persons without any exceptions or conditions whatsoever. In other words, this section differs materially from the other in that here Congress specifically designates those whom it does not desire to have in the naval service under any circumstances. And mth reference to deserters in time of war the Attorney General has held, as noted above, that even the Presi- dent's pardon does not remove the disqualifica- tion as to reenlistment. [Sections 1117 and 1118, Revised Statutes, relating to enlistments in the Army, and which Were generally similar to sections 1419 and 1420, except for a difference in ages, have repeatedly received a judicial interpretation similar to the above. Thus, in Re Da\ason (21 Fed. Rep., 618), which was an appeal from 4 Fed. Rep., 507, it was said, with reference to the Army laws: "The reasonable conclusion war- ranted by these sections would seem to be that the contract of enlistment of a minor under 16 years of age is void; but that if he is over that age it is valid, in the absence of fraud or duress as to him, but during his minority is invahd at the election of his parents or guardian." [In the American and English Encyclo- pedia of Law (second edition), volume 20, page 624, the substance of the decisions bearing upon this question is stated as follows: "In the United States the binding effect of a minor's contract of enlistment will depend entirely upon the construction to be placed upon the several statutory provisions on the subject of such enlistments. Under the provision pro- 652 The Navy. Pt. 2. REVISED STATUTES. Sec. 1420. hibiting absolutely the enlistment of minors untler the age of 16 years, such enlistments are plainly void for all purposes." [In support of this statement the following cases are cited: In re Hearn, 32 Fed. Rep., 141; Matter of Riley, IBen. (U.S.), 408, 39 How. Pr. (N. Y.), 108. Fed. Cas. No. 11834; InreLawler, 40 Fed. Rep., 233; Seavey v. Seymour, 3 Cliff. (U. S.), 439, Fed. Caa. No. 12596; Wantlan v. White, 19 Ind., 470. [In the Hearn case, decided by the District Court of the United States for the Northern Dis- trict of Ohio, referring to sections 1116, 1117, and 1118, Revised Statutes, the court said: "These sections are to be construed together. It is clear that Congress provided by these sections that a minor under 16 years of age can not be enlisted, and, if done, it ivould he ab- solutely void, and he could not be held to service; but it is also clear that if he be 16 years old he can legally enUst. Congress, having so author- ized, makes such enlistment legal, and thereby confers capacity on such minor to make the con- tract of enlistment. If the relator was by the law made competent to enter into this contract when over 16 years of age, he can not for himself avoid it. Section 1117, requiring the written consent of parents or guardians, when under 21 years of age, was for the benefit of such parents, who might assert their right to his custody be- fore majority, and does not affect the capacity of the minor to bind himself." [To the same effect is the Riley case, which was decided by the District Court of the United States for the Southern District of New York in 1867. Referring to the laws then in force, it was held by Judge Blatchford, aftenvards Associate Justice of the Supreme Court of the United States (quoting syllabus): "Enlistments of minors over 18 years of age into the Army of the United States, without the consent of their parents, masters, or guardians, are valid, but it is not lawful to muster into the service a per- son under 18 years of age." [In the Lawler case, which wasan appeal from the District Court for the Northern District of Georgia, it was said by Pardee, circuit judge, in affirming the judgment of the lower court: "In this view of the case, no issue is left except the single one as to whether or not the petitioner was under the age of 16 years when he enlisted. If he was over the age of 16 years at that time, his enhstment, according to the return , was regular and valid; if he was under 16 years of age, the enlistment was void, whether the father con- sented in writing or not. " [The case of Seavey v. Seymour, which was an appeal from the District Court of the United States for the District of Maine, was decided by Mr. Justice Clifford, of the Supreme Court of the United States, while sitting in the Cir- cuit Court for the First Circuit. In an exhaust- ive opinion in this case Mr. Justice Clifford affirmed the decision of the lower court holding that the enlistment of a minor under the age of 18 years was made void by the law then in force. [In the case of Wantlan v. White the question at issue was, " whether a volunteer in the Army of the United States, as a private, who is under the age of 18 years, can be held to the service by virtue of his enlistment," and the court was " unanimously of the opinion that he can not be so held." The opinion in this case reads, in part, as follows: " Volunteers under the statutes named, before they become soldiers, have to be mustered into the service of the United States; and, on the 13th day of February, 1862, Con- gress enacted a law 'that hereafter no person under the age of 18 years shall be mustered into the United States service.' * * * From the 13th day of February, 1862, then, no consent could give power to enlist a minor under the age of 18, or could validate such enlistment while the minor continued under 18." [The case of Commonwealth ex rel. Bryson v. Carter (20 Leg. Int. (Phila.), 21), also involved the construction of the act of February 13, 1862, with reference to which the court said: "The Secretary of War, by the existing law, had the* power to discharge minors. This power was ex- ercised by that officer, and it must also be re- membered by the courts. The unfortunate condition of the country rendered it exceed- ingly difficult for the Secretary of War to ex- ercise this quasi judicial power in a satisfactory manner. To relieve him, therefore, Congress destroys his power. In doing so, however, it was deemed advisable, also, to declare that in- fants under 18 should not enlist in the Army of the United States, and that no power should hereafter be given to any tribunal to declare such enlistments valid. While, therefore, the power of the Secretary of War is destroyed in the body of the law, the proviso limits the power of the courts; the Secretary of War is relieved from the discharge of a most onerous duty, and the courts are hereafter to declare contracts of enlistments made by minors under 18 years of age, either with or without the consent of parents or guardians, to be null and void." [In no case has it been judicially determined by the Supreme Comt of the United States that the fraudulent enlistment of a deserter at large in violation of express statutory prohibitions is merely voidable and not absolutely void. In the War Department the practice in such cases prior to 1890 was not imiform. In some cases it was held that the second enlistment was "void and of no effect"; in other cases it was the practice to hold that the enlistment was "illegal" ; wliile it was sometimes held that the enlistment was voidable only. However, "a uniform practice was adopted in 1892, since which time it has been uniformly held by the [War] Department that in the cases of enlist- ments of deserters while a former enlistment contract was in force [the second enlistment] was voidable and not absolutely void." (See file 7657-132.) ' [The present practice of the War Department was apparently based upon the decision of the Supreme Court in Re Griniley, decided Novem- ber 17, 1890 (137 U. S., 147). The question presented in that case was whether an enlisted man could escape punishment for a military offense on the ground that at time of enlist- ment in the Ai'my he was over 35 years of age, when the law (sec. 1116, R. S.) provided that " Recruits enlisting in the Army must be effect- ive and able-bodied men, and between the ages of 16 and 35 years, at the time of their enlist- ment. * * *." The court held that "An enlisted soldier can not avoid a charge of deser- tion by showing that at the time when he vol- 553 Sec. 1420. PL 2. REVISED STATUTES. The Navy. untarily enlisted he had passed the age at which the law allows enlisting officers to enlist re- cruits." [Even though the enlistment in the Grimley case had been void, it seems clear from the authorities that this could not have been set up by him as a valid defense upon a trial by court- martial for a military offense committed while serving as a de facto enlisted man. (See Com- monwealth r. Gamble, Supreme Court of Penn- sylvania, 11 Serg. & Rawle, 93; Ex parte Ander- son, 16 la., 595; Wilbur v. Grace, Court of Errors, New York, 12 Johns., 67; InreBeswick, Supreme Court of New York, 25 How. Pr., 149; In re McVey, 23 Fed Rep., 878; In re Cosenow, 37 Fed. Rep., 668; In re Zimmerman, 30 Fed. Rep., 176; In re Kaufman, 41 Fed. Rep., 876; Carroll v. Ball, Fulton (Ga.) Superior Court (file 7988); see also file 7657-132, and cases noted under sees. 761 and 1419, R. S., and note to Constitution, Art. I, sec. 8, clause 14, under "IV. Jurisdiction of courts-martial.") [It will be noted that section 1116, Revised Statutes, which was construed in the Grimley case, fixes the qualifications for enlistment in the Army, but is not expressly prohibitory in terms as ia section 1420. " Proliibitory stat- utes must not be interpreted on a principle of leniency; if anything done is substantially that wliich is prohibited the thing is void, not be- cause of its tendency, but because it is, within the true construction of the statute, the thing prohibited." (Sutherland on Statutory Con- struction, sec. 254.) Certain statements con- tained in the court's opinion in the Grimley case are broad enough to apply to cases of en- listments in violation of the express statutory prohibitions, and to suggest that such enlist- ments are not absolutely void; but such re- marks, which are not called for by the facts of the case decided, have not the force of a decision and are disregarded by the Supreme Court itself in subsequent cases where the precise question is raised. (See Cohens v. Va., 6 Wheat., 264, 399, per Chief Justice Marshall; Carroll v. Lessee of Carroll, 16 How., 287; Pol- lock V. Farmers' Loan and Trust Co., 157 U. S., 574; Rush v. French, 25 Pac, 816, 1 Ariz., 99, 134.) In Hoskins v. Pell (239 Fed. Rep., 279), it was held that the fraudulent enlistment in the Army of a minor 15 years of age was void under section 1118, Revised Statutes, which is simi- lar to section 1420 relating to the Navy. [The proper conclusion supported by the authorities above cited appears to be that fraudulent enlistments in violation of section 1420 are void ab initio, and not merely voidable, differing in this respect from fraudulent enlist- ments in violation of section 1419, the party fraudulently enlisting under the latter statute being both de facto and de jure in the service.] Desertion "in time of war." — Desertion after December 10, 1898, from a receiving ship at Boston was not desertion in time of war. The treaty of peace signed December 10, 1898, while not ratified until April 11, 1899, was effective from the date of signature, as far as exercise of sovereign powers was concerned. (File 6642-03, Sept. 1, 1903; see also file 8693- 01, Nov. 23, 1901, and 6562, Jan. 24, 1907.) Desertion after the conclusion of the protocol with Spain of August 12, 1898, but prior to the signing of the treaty of peace or the ratifica- tion thereof, is desertion in time of war. The date of the signing of the treaty is the earliest on which the war with Spain may be considered to have terminated. (File 14535-719, May 24 1909.) Desertion from the Navy on September 17, 1898, was desertion in time of war. (File 26516- 47, May 18, 1911.) Payment of death gratuity in case of deserter who fraudulently enUsted. — After the death of a man, the evidence wasstrong that he was serving under a fraudulent enlistment. If such evidence had been presented during the man's lifetime, the Nav-y Department would have taken proper action and he would have been discharged or the fraud waived and he continued in the service; but he would not have been condemned unheard . WTiat evidence the man might have presented we know not, nor do we know what proof he might have produced that the naval authorities at some time had knowledge of the former service in the Marine Corps and, by ignoring, had waived the fraud. The man is dead and can now neither be dis- charged from the naval service nor any fraud waived by continuing him in it. Under the circumstances, the rule as to forfeiture of arrearages of pay on account of fraudulent en- listment has no application, nor has it the effect of depriving the widow of the gratuity given by the act of May 13, 1908, to a widow or designated beneficiary of "any officer or enlisted man on the active list of the Navy and Marine Corps" who died from ' ' wounds or disease contracted in line of duty." (15 Comp. Dec, 614.) Aliens not to be enlisted. — Only citizens of United States or natives of insular posses- sions shall be permitted to enlist in the Navy (Art. R-3524 (1), Navy Regs., 1913; see also Navy Dept. Circular, Sept. 1, 1908); except that men holding honorable discharges or continu- ous-service certificates on which is endorsed an "honorable" or "ordinary" discharge with recommendation for reenlistment, shall, if otherwise qualified, be accepted for reenlist- ment upon making application within four months after discharge. (Art. R-3527 (1), Navy Regs., 1913.) Enlistments in the Marine Corps are governed by the laws and regulations relating to the Navy [see notes to sections 1418 and 1422, Revised Statutes]. There is no statute prohibiting the enlistment of aliens in either the Nav}- or Marine Corps, and there is nothing in the regulations which would prohibit the reenlistment in the Marine Corps of an alien enemy who had an excellent character on discharge from his last previous enlistment. However, imder well- established rules of international law, the en- listment of an alien enemy would be objection- able and might lead to unfortunate results. (File 7657-488, Sept. 20, 1917). Aliens, not enemies of the United States, who have declared their intention to become citizens of the United States, may be enrolled in the Naval Reserve Force. (Act May 22, 1917, 40 Stat., 84.) 554 The Navy. Pt. :^. REVISED STATUTES. Sec. 1422. Sec. 1421. [Enlisted men ; transfer from military to naval service.] Any person enlisted in the military service of the United States may, on application to the Navy Department, approved by the President, be transferred to the Navy or Marine Corps, to serve therein the residue of his term of enlistment, subject to the laws and regulations for the government of the Navy. But such transfer shall not release him from any indebtedness to the Government, nor, without the consent of the President, from any penalty incurred for a breach of military law.— (1 July, 1864, c, 201, s. 1, v. 13, p. 342.) Transfer of marines to Hospital Corps of the Navy was authorized by acts of June 17, 1898 (30 Stat., 474), and August 29, 1916 (39 Stat., 572). Transfer of enlisted men of the naval service to the Naval Flying Corps was authorized by act of AugU8t_29, 1916 (39 Stat., 586). Transfer of the Marine Corps temporarily to the Army, is provided for by section 1621, Revised Statutes. Transfer of the Coast Guard temporarily to the Navy is authorized by act of January 28, 1915(38 Stat., 800). ^ Transfer of Lighthouse Service temporarily to the jurisdiction of the Navy Department is authorized by act of August 29, 1916, (39 Stat., 602). Transfer of Coast and Geodetic Survey tem- porarily to the jurisdiction of the Navy Department is authorized by act of May 22, 1917, section 16 (40 Stat., 87). Transfer of Public Health Service temporarily to the jurisdiction of the Navy Department is authorized by acts of July 1, 1902, sec- tion 4 (32 Stat., 713), July 9, 1917 (40 Stat., 242), and October 6, 1917 (40 Stat., 393). _ Who are subject to military law: See section 1342, Revised Statutes, and notes thereto. Historical note. — Provision for the transfer of persons in the military service to the naval service was made by resolution of February 24, 1864 (13 Stat., 402), repealed by act of June 3, 1864 (13 Stat., 119). Authority for such transfer v.ras again given by act of July 1, 1864 (13 Stat., 342), from which the above section of the Revised Statutes is taken. In the Commissioners' Draft of the Revised Statutes, vol. 1, page 695, the following note was made to the paragraph, now section 1421: "This pro- vision seems to have been intended to meet the exigencies of the late war. It may, perhaps, be deemed proper to repeal it, as unsuitable to the permanent relations of the military and naval branches of service." Nevertheless, the provision was retained, and has never since been repealed. A marine, on being transferred to the Hospital Corps of the Navy, should not be discharged from the Marine Corps, but should sign enlistment papers for the balance of the term of his original enlistment. (File 3450-04. See also file 3796-02, 9033-02, and 5315-04. Compare cases noted under sec. 1426, R. S., "Revocation of discharge obtained by fraud.") A marine transferred to the Hospital Corps is entitled to an honorable discharge upon expiration of original period of enlistment, with all the benefits incident thereto, including reenUstment with continuous service, or if he does not reenlist, he may be furnished transportation to his place of last enlistment in the Marine Corps. (File 5315-04, July 5, 1904; see also 11 Comp. Dec, 700, noted under sec. 1426, R. S.) Sec. 1422. [Enlistment, detention after expiration of ; transportation home.] [It shall he the duty of the commanding officer of any fleet, squadron, or vessel acting singly, when on service, to send to an Atlantic fort of the United States, in some public or other vessel, all petty officers and persons of inferior ratings desiring to go there, at the expiration of their terms of service, or as soon thereafter as may he, unless, in his opinion, the detention of such persons for a longer period should he very essential to the public interests, in which case he may detain them, or any of them, until the vessel to which they belong shall return to such Atlantic port.] [That it shall be the duty of the commanding officer of any fleet, squadron, or vessel acting singly, when on service, to send to an Atlantic or to a Pacific port of the United States, as their enhstment may have occurred on either the Atlantic or Pacific coast of the United States; in some public or other vessel, all petty-officers and persons of inferior ratings desiring to go there at the expiration of their terms of enlistment, or as soon thereafter as may be, unless, in his opinion, the detention of such persons for a longer period should be essential to the pubUc interests, in which case he may detain them, or any of them, mitil the vessel to wliich they belong shall return to such Atlantic or Pacific port. All persons enUsted without the limits of the United States may 54641°— 22- -36 555 Sec. 1422. Ft. 2. REVISED STATUTES. The Navy. be discharged, on the expiration of their enlistment, either in a foreign port or in a port of the United States, or they may be detained as above provided beyond the term of their enUstment; and that all persons sent home, or detained by a commanding officer, according to the provisions of this act, shall be subject in all respects to the laws and regulations for the government of the Navy imtil their return to an Atlantic or Pacific port and their regular discharge; and all persons so detained by such officer, or re-entering to serve until the return to an Atlantic or Pacific port of the vessel to which they belong, shall in no case be held in service more than thirty days after their arrival in said port; and that all persons who shall be so detained beyond their terms of oidistment or who shall, after the termination of their enhstment, voluntarily re-enter to serve mitil the return to an Atlantic or Pacific port of the vessel to which they belong, and their regular discharge therefrom, shall receive for the time dm'ing wliich they are so detained, or shall so serve beyond their original teims of enlistment, an addition of one-fourth of their former pay: Provided, That the shipping-articles shall hereafter contain the substance of this section.]— (17 July, 1862, c. 204, s. 17, v. 12, p. 610; 3 Mar., 1875, c. 155, v. 18, p. 484; Wilkes v. Dinsman, 7 How., 125.) This section is printed above as it appears in the second edition of the Re\dsed Statutes. The portion printed in italics is the original section as it appeared in the fii'st edition of the Revised Statutes, and the latter por- tion, printed in the ordinary roman letter, is the section as amended by act of March 3, 1875, cited above in the revisers' notes. (See Introduction, ante, concerning the second edition of the Revised Statutes.) The pay of men detained after term of enlist- ment in accordance with this section was formerly provided for by section 1572, Re- vised Sta,tutes, which is superseded by the pro\'isions of this section as amended by the act of March 3, 1875. Mileage allowed for travel on shore, and trans- portation and subsistence allowed for sea travel, to place of actual bona fide home or residence, or original muster into the service, to men honorably discharged from the Navy or Marine Corp.=!, and naval reservists honorably released from active service. (Act June 3, 1916, sec. 126, 39 Stat. 217, as amended by act Feb. 28, 1919, sec. 3, 40 Stat., 1203.) Pro\'ision3 similar to those contained in this sec- tion were first enacted by act of March 2, 1837 (5 Stat., 153). The term of enlistment in the Navy is provided for by section 1418, Re\dsed Statutes, and amendments thereto. Transportation of discharged naval prisoners to their homes or places of enlistment is au- thorized by act of March 3, 1909 (35 Stat., 756). This section is a recognition of the Gov- ernment's duty to discharge persons entering the military or naval 8er\ice for limited periods at the place of their appointment or enlistment. This duty was also recognized by the Court of Claims in the case of volunteer officers and enlisted men in the decision of Daggett v. United States (39 Ct. Cls., 218), in which it was said : "It is well settled by statute, by regu- lations, by judicial decisions, that volunteer officers and enlisted men are entitled to be paid to the time of their discharge or muster out, and that they are entitled to be discharged or mustered out at the place where they were en- rolled or enlisted." The same principle was recognized by the Navy Regulations of 1909 (art. 1367), which pro^dded for the discharge of paymasters' clerks at the place in the United States which they left under their appoint- ments. Similarly it was provided by sections 4582 and 4583 of the Re\-ised Statutes, as amended by the act of December 21, 1898 (30 Stat., 759, 760), that seamen on merchant ves- sels discharged abroad should be returned home by the master or afforded bv him the means for so doing. (File 26254-359, Nov. 9, 1909; see also Da\-i8 v. U. S., 47 Ct. Cls., 195, overruling Comp. Dec, July 29, 1909, 101 S. and A. Memo., 1222, upon authority of which decision of the Comptroller, and following the Attorney General's refusal to review same (28 Op. Atty. Gen., 129), art. 1367 of the Na^y Regs., 1909, was annulled; and see Allerdice v. U. S., 19 Ct. Cls., 511, 513.) The act of March 3, 1875 (18 Stat., 484), made no material change in section 1422 except to pro^^.de that the persons whose terms of 8er\ice were about to expire might be returned to a Pacific port if they had enlisted on that coast instead of to an Atlantic port; but it carried into said section the provisions of section 1572 regarding one-fourth additional pay, and also the pro\'isions of sections 1423, 1424, and 1425, upon the same general subject, practically consolidating all of said sections into one. " These sections were originally com- piled from section 17 of the act of July 17, 1862 (12 Stat., 610), which contained the sub- stance of the law as it now stands, except the provision for the retiim to a Pacific port of persons enlisting on that coast. (5 Comp. Dec, 524.) 556 The Navy. Pt. 2. REVISED STATUTES. Sec. 1422. The word "essential" means "neces- sary," and if a person's services were needed it follows that they were essential within the meaning of this section. Where commanding officer would not certify that man's services were "essential" to the public interest, but did certify that they were "needed," the man was held entitled to the additional pay provided by section 1422. (23 Comp. Dec, 249.) Detention of marines. — Enlisted persons in the Marine Corps are entitled to an increase of one-fourth their former pay while detained beyond their terms of enlistment. (5 Comp. Dec, 524.) The act of March 2, 1837 (5 Stat., 153), enti- tled "An act to provide for the enlistment of boys for the naval service, and to extend the term for the enlistment of seamen," contained substantially the same provisions relating to the return to the United States of "persons enlisted for the Navy," according to the provisions of said act, aa are found in section 17 of the act of July_17, 1862/12 Stat., 610). The act of 1837 provided, as in the present law, that persons enlisted for the Navy, detained beyond the terms of their enlistment according to said act, should while so detained and serving receive an addition of one-fourth to their former pay. Attorney General Legare (4 Op. Atty. Gen., 89) held that said act did not include marines, say- ing that the act "is no more than what it pur- ports to be — 'an act to provide for the enlist- ment of boys for the naval service and to extend the term for the enlistment of seamen. ' " However, in the case of Wilkes v. Dinsman (7 How., 89), which was an action for damages by a marine against his superior officer for punish- ment inflicted for disobedience of orders while so detained beyond his enlistment, the Supreme Court held that marines were embraced within the spirit if not the letter of the act, by the de- scription of persons "enlisted for the Navy." There were other circumstances in that case which evidently influenced the decision of the court, and their conclusion was not based solely upon the statute. Congress, however, placed its own construction upon the statute of 1837 by enacting, in section 9 of the act of March 3, 1845 (5 Stat., 795), that the term "persons" used in the second and third sections of said act of 1837 should be "construed to include marines." After this amendment of the act of 1837, Second Comptroller Brodhead held, very properly, that marines were entitled to the benefits of the act, citing the amendatory act of March 3, 1845. This was probably the manner in which the practice arose of allowing marines one-fourth additional to their pay for detention beyond their term of enlistment, which practice has been continued, notwithstanding the subse- quent changes in the law. (5 Comp. Dec, 524.) It was provided by section 1 of the act of August 5, 1854 (10 Stat., 586), "that the non- commissioned officers, musicians, and privates of the U. S. Marine Corps shall be entitled to and receive the same pay and bounty for reenlisting as are now or may hereafter be allowed to the noncommissioned officers, musicians, and pri- vates in the Infantry of the Army." [Section 1612, Revised Statutes.] It would seem that this provision was intended to supersede all laws then in force relating to the pay of enlisted men of the Marine Corps and to repeal, among other provisions, that portion of the act of 1837, as amended, which gave marines one-fourth addi- tional pay for serving beyond their enlistments. But the former practice of allowing marines this increase was continued as though the law did not apply to cases of that kind. (5 Comp. Dec, 524.) The seventeenth section of the act of July 17, 1862, from which section 1422, Revised Stat- utes, was originally taken, was but a repetition in substance of the act of 1837. The latter act was not carried into the Revised Statutes, either in its original form or as amended to in- clude marinas by the act of March 3, 1845. Not having been incorporated into the Revised Statutes as thus amended, unless superseded by the act of 1854, making the pay of marines correspond to that of the infantry of the Army, it still remains in force, so far as concerns the pay of marines, by virtue of section 5566, Re- vised Statutes, which provides that where no part of a statute has been carried into the Re- vised Statutes it is not to be treated as repealed by the revision. (5 Comp. Dec, 524.) Were the question a new one, the inclination would be strong to hold that the act of 1854 [section 1612, Revised Statutes] governed the whole subject of pay of marines, and in effect repealed the amended act of 1837, which gave one-fourth additional pay to marines for serving beyond enlistment; but the long-continued con- struction, since the passage of the act, allowing them this increase is entitled to great weight and as it is not clearly contrary to express pro- visions of law it should not be overturned . Ac- cordingly, held that the provision regarding marines in the act of 1837 as amended, not hav- ing been superseded by the act of 1854 nor in- corporated in the Revised Statutes, still remains in force, and enlisted men of the Marine Corps detained in service beyond their periods of enlistment are entitled to an increase of one- fourth to their original pay, as provided in said act. _(5Comp.Dec.,524.) It is suggested that marines are included within the very words of the law as now em- bodied in section 1422, under the description "persons enlisted in the naval service," and so entitled to the increase of one-foiu"th to their pay when they bring themselves within the conditions which entitle seamen to such in- crease. However, the comptroller does not favor this construction, notwithstanding the sanction implied in the decision of the Supreme Court in the case of Wilkes v. Dinsman (above noted). Congress placed the opposite construc- tion upon similar words in the act of 1837 by amending the act to include marines. (5 Comp. Dec, 524.) Marines are not specifically mentioned in this statute, but it has been held by the Comptroller, in view of the history of the legislation con- densed into section 1422, and of the long- continued practice of the accounting officers, that marines should be allowed the benefit of the statute. (Comp. Dec, Feb. 24, 1905, 48 S. and A. Memo., 492; see also Comp. Dec, Oct. 2, 1905, 55 S. and A. Memo., 1.) For other cases concerning status of Marine Corps, see notes to sections 761, 1418, and 1621, Revised Statutes. 557 Sec. 1422. PL 2. REVISED STATUTES. The Navy. Detention of men enlisted outside the United States. — EnlisU'd men of the insular force are, in contemplation of law, enlisted men or apprentices of the U. S. Navy, and therefore are entitled to the one-fourtli addi- tional pay provided for by section 1422, Re\ised Statutes, when detained in the sei-vice after ex- Eiration of their term of enlistment. (12 Comp. >ec., 189; see also note to sec. 1417, K. S.) Alien Chinese enlisted without the limits of the United States are entitled to the additional pay provided by this section when detained in service under the conditions specified therein. (23 Comp. Dec, GO.) Detention of mates. — See note to section 1408, Revised Statutes, under " Pay and allow- ances of mates." Detention of enlisted men on shore duty. — The practice has not been to allow the one-fourth additional pay to marines when de- tained on shore duty, but only when employed on vessels of the Navy and detained after the expiration of the term of their enlistment, upon thetheory that section 1422 appliesonly to those persons attached to vessels of the Navy. If the question were a new one, unaffected by a settled Eractice of some years' continuance, it would e open to doubt whether, in order to entitle a marine to the extra comjiensation allowed by this law for detention in the 8er\'ice beyond the term of his enlistment, he should be serving upon and attached to a vessel during said period of detention. (Comp. Dec, Feb. 24, 1905, 48 S. and A. Memo., 492; see also Comp. Dec, Sept. 1, 1905, 55 S. and A. Memo., 1.) This statute contemplates service upon and attachment to a vessel during the period of de- tention in service beyond the expiration of the term of enlistment. Enlisted men of the Navy detained at shore stations beyond the expiration of their terms of enlistment are not entitled to the one-fourth additional pay provided by sec- tion 1422, Revised Statutes. If the enlisted men of the Navy were attached to a vessel, it would make no difference whether the deten- tion was in port or at sea, but in the case pre- sented the men were detached from their vessels and stationed on shore. (Comp. Dec, Sept. 1, 1905, 55 S. and A. Memo., 1; see also Comp. Dec, May 23, 1916, file 26254-1969:1. ) Under the decisions and practice this statute is applicable aUke to marines and enUsted men of tne Navy. All persons coming within the pur\iew of the statute must necessarily be on the same footing. If marines detained on shore duty beyond the expiration of their terms of enlistment are not entitled to the one-fourth additional pay, then it necessarily follows that enlisted men of the Navy, who are gov- erned by the same law, are not entitled to such pay while detained on shore stations, (Comp. Dec, Sept. 1, 1905, 55 S. and A. Memo., 1.) An enhsted man carried on the roll of the United States naval station, Olongapo, P. I., but attached to and performing duty on board the U. S. S. General Alava, is entitled to one- fourth additional pay for detention beyond the expiration of his term of enlistment. The ship named is not in commission in the ordinary sense of the term, but has the status of a yard craft and is used principally as a ferry between Cavite and Olongapo, making three trips a week when weather permits. This vessel, as well as the naval station at Olongapo, is under the juris- diction and command of the commander in chief of the Asiatic fleet. (Comp. Dec, May 23, 1916, file 26254-1969:1.) Detention of enlisted man under court- martial sentence. — By sections 1422, 1423, and 1424 of the Revised Statutes, Congress has pro^•idc'd that in certain cases of emergency enlisted men of the Navy may be held in serv- ice for limited periods beyond their enlist- ments, but the law does not authorize their detention for any longer time or for any other purpose, and the implication is that a detention other than in the manner there stated would be illegal. Where jurisdiction of a court-martial has attached, it will continue for all purposes of trial, sentence, and the execution of the sen- tence, although in the meantime the term of en- listment of accused should expire. But if when accused's term of enlistment expired he was in confinement, undergoing punishment in obedi- ence to the sentence of the court-martial for the offenses of which he was accused, such impris- onment and punishment would not be such a holding of him in the service beyond the term of his enlistment as would entitle him to re- ceive thereafter pay and allowances which are given by law as compensation for personal services, nor could it be regarded as holding him in the naval service within the meaning of any law entitling him to receive pay for such serv- ice. Accordingly, held that the payment to an enhsted man of the Navy who was sentenced by court-martial to imprisonment for a speci- fied term, extending beyond his term of enlist- ment, with forfeiture of pay and allowances of an amount excepted from forfeiture, is not authorized after the expiration of the term of his enlistment, although he was not discharged until the expiration of his term of confinement. (9 Comp. Dec, 257, affirming Comp. Dec, Nov. 22, 1902, 13 S. and A. Memo., 126. But see act Feb. 16, 1909, sec. 13, 35 Stat., 622.) The Navy Department has authority to re- tain a general court-martial prisoner to serve out his sentence after his enlistment has ex- pired and he has been given a discharge from the service. (File 26504-102, Mar. 1, 1910.) A general court-martial prisoner may be tried by summary court-martial or deck court prior to the expiration of his period of enlistment, and may afterwards be held to serve out the sentence imposed by such court, irrespective of whether or not his enlistment expires in the meantime. (File 26504-100, Dec. 21, 1910; as to trial by court-martial of prisoners for offenses committed after expiration of en- listment, see file 2650^259, Mar. 12, 1918, recommending legislation.) An enlisted man who absented himself with- out authority, and remained so absent until after expiration of his enlistment, may be tried by summary court-martial and sentenced to perform extra police duties, and may be re- tained in the service for the purpose of execut- ing such sentence. (See 20 Comp. Dec, 751.) An enhsted man detained in the service after expiration of enlistment to serve a sentence of imprisonment for desertion was restored to duty on probation prior to completion of sen- tence. Held, entitled to pay during probation- 558 The Navy. Pt. 2. REVISED STATUTE.'^. Sec. 1422. ary period. (Comp. Dec, Nov. 20, 1908, 93 S. and A. Memo., 896.) See also note to section 1418, Revised Statutes, under "Detention of men after expiration of enlistment." Detention of enlisted man on account of physical disability. — On date of expiration of enlistment an enlisted man of the Navy was serving in foreign waters and temporarily dis- abled from disability incurred in line of duty, and continued on ship from such date, January 26, 1912, to February 15, 1912, wHen he re- enlisted thereon for a full term. Held^ that for period intervening between expiration of enUstment and reenUstment he may be paid one-fourth additional pay, if commanding offi- cer shall certify that he detained the man as "essential for the public interests, " under sec- tion 1422 Revised Statutes. (18 Comp. Dec, 724.) An enlisted man detained in a hospital on a foreign station after expiration of enUstment and upon recovery transferred to duty on board another vessel and later transferred to the United States for discharge, is entitled to bene- fits of this section. (Comp. Dec, Jan. 6, 1917, file 26254-2169.) The regulations for many years have con- tained a provision that the pay of an enlisted man under treatment in a hospital on a foreign station "continues until he is regularly dis- charged from the service, even after his term of enlistment has expired.'' (File 26251- 5447, Dec. 8, 1911, citing art. 792, par. 7, Navy Regs. 1909; Comp. Dec, Aug. 18, 1903, 31 S. and A. Memo., 242. See also Art. R-3582 (7), Navy Regs., 1913.) An enlisted man at a hospital in the United States should be discharged upon the expira- tion of his enlistment, and in such case the man should, if necessary, be retained for further treatment. If retained, he does not lose his right to transportation to his home, if he has it otherwise. (File 2274-04; 727-00; 303-5-98. By article 3582(8), Navy Regs., 1913, as amended by C. N. R. No. 11, Dec. 1, 1918, it was pro- \ided that "enlisted men held for treatment at a hospital after expiration of enlistment are held for the convenience of the Government, and entitled to pay and allowances until date of actual discharge from the ser'vice.") No legal objection exists to payment from the naval hospital fund, at the rate of 30 cents per day, to the Army and Navy General Hospital in the cases of discharged enlisted men of the Navy and Marine Corps retained for treatment after expiration of their enlistments. (File 22857-12:3, Jan. 17, 1912.) Detention of enlisted man for period necessary to travel home. — An enlisted man in the Navy detained in the service for five days after the expiration of enhstment period, while on board an Army transport en route from Cavite, P. I., to San Francisco, Cal., for dis- charge, is not entitled to one-fourth additional pay provided by section 1422, Revised Statutes, as amended by act of March 3, 1875 (18 Stat., 484). (20 Comp. Dec, 37.) The statute provides two alternatives: First, to return the man to the United States at the expiration of his enlistment or as soon there- after as may be, and, second, when his ser\'ices are essential to the public interests, to detain him in the service. The commanding officer in thia case acted upon the first alternative and sent the man to the United States by an Army trans- port and before the expuation of his enlistment. The second alternative of detaining him in the service was evidently not deemed essential to the public interests. During the five days for which the one-fourth additional pay is claimed the man was not performing the duties of his rating, but was traveling home for discharge as a passenger on an Army transport. (20 Comp. Dec, 37.) Detention of enlisted man at his own request. — When an enlisted man is detained in the service beyond the expiration of his en- listment, at his own request, although detained longer than he requested, this is not such a dTnent or had been required to u-ork same off. Held, that commanding officer correctly ruled that he had no authority to detain the man under such circumstances. (File 26254-70. July 8, 1908; see also file 26251- 3352:1.) Detention of enlisted men in other cases. — See note to section 1418, Revised Stat- utes, under "Detention of men after expiration of enlistment." Place to which transportation should be furnished.— The pro\'ision of section 1422, Revised Statutes, which requires that enlisted men in the Navy who so desire shall, at the expiration of their terms of enlistment, be returned to the coast, either the Atlantic or Pacific, on which they enlisted, does not require that they shall be sent to the particular port at which they enlisted, nor authorize furnLshinff them transportation thereto. (4 Comp. Dec., 390.) This 8e<;tion was evidently intended to prevent the discharge of persons enlisting in the Navy in a foreign port, when they desired to be returned to the United States. There is nothing to show the intention that persons whose terms of enlistment were about to expire should be transported to the particular port of their enlistment. (4 Comp. Dec, 390.) Atlantic ports are mentioned in the law in connection with Pacific ports. Both terms are used generically, and include not only ports confronting on the ocean, but also those situ- ated upon the gulfs and bays of either coast. Within the meaning of the law a gulf port ia an Atlantic port, and a man discharged at Port Tampa is not entitled to be transported to any other Atlantic port. (4 Comp. Dec, 390.) Prior to July 1, 1902, all tran.sportation for enlisted men of the Navy was paid from appro- priations usually made in general terms, as "for the transportation of enlisted men and bovs at home and abroad, and of officers accom- panjang them" (31 Stat., 1109), and the payments were governed as to discharged men by section 1422, Revised Statutes, and Navy regulations. The naval appropriation act of July 1,1902 (32 Stat., 664), pro\aded: "Bureau of Navigation:. Transportation, * * * trans- portation and subsistence en route to their homes, if residents of the United States, of enlisted men and apprentices discharged on medical sin-vey; transportation and subsistence en route to the place of enlistment, if residents of the United States, of enlisted men and apprentices discharged on account of expiration of enlistment * * *. " A like appropria- tion was made in the same terms by subsequent annual appropriation acts. These acts specify the conditions under which transportation and subsistence shall be fiunished enlisted men and apprentices on discharge, and supersede any regulations in conflict with them. (11 Comp. Dec, 336.) [The deficiency appropria- tion act of March 3, 1901 (31 Stat., 1030), pro- vided that transportation to their homes, if residents of the United States, of enlisted men and apprentices discharged on medical survey, and the transportation to place of enlistment, if residents of the United States, of enlisted men and apprentices discharged on account of ex- piration of enlistment, shall hereafter be chargeable to the appropriation "Transporta- tion, recruiting, and contingent."] An enlisted man of the Navy, whose home is in Porto Rico, is a resident of the United States within the meaning of the j^rovision in the annual appropriation for the transportation to their homes of enlisted men of the Navy on discharge from the service. (11 Comp. Dec, 336.) How additional pay computed. — The one- fourth additional pay pro\'ided by section 1422, Revised Statutes, for enlisted men of the Navy detained in the service beyond the term of their enlistment should be computed upon the basis of the total pay, extra as well as regular, which they would otherwise have received. (11 Comp. Dec, 575.) In other words, the one-quarter increase follows the pay given for the duties he may be required to perform, whether they be regular duties covered by the regular pay, or special duties for which extra pay is pro\dded. (11 Comp. Dec, 575.) If, then, an enlisted man detained as specified in section 1422, performs under detail the duties of gun pointer, gun captain, signalman, mess- man, or other detail of similar character, the extra pay allowed in such cases should be in- cluded in making up the total pay upon which the one-fourth additional is to be computed. (11 Comp. Dec, 575.) The words "former jjay" as used in section 1422, Re^ised Statutes, do not in the case of 560 The Navy. PL 2. REVISED STATUTES. Sec. 1422. a marine include the 20 per cent extra pay allowed for service in time of war to enlisted men of the Army by act of April 26, 1898 (30 Stat. 365). (5 Comp. Dec, 524.) In computing the one-fourth additional pay a marine is not entitled to include one-fourth of the additional pay allowed for foreign service. (Comp. Dec, Feb. 24, 1905, 48 S. and A. Memo., 492; see also Comp. Dec, Sept. 1, 1905, 55 S. and A. Memo., 1.) Certificate of commanding officer neces- sary. — In cases of detention, the commanding officer by whose order the detention is made is the proper officer to certify that such deten- tion was essential to the public interests. (20 Comp. Dec, 37; see also 18 Comp. Dec, 724.) Additional pay can not be waived. — An enlisted man of the Navy detained in service under section 1422, Re\dsed Statutes, does not lose his right to the additional pay authorized in that section for the period of detention solely because he had voluntarily attempted to waive his right to such pay, since such attempted waiver is of no legal force or effect. (23 Comp. Dec, 249.) Transportation may be waived. — The Re\ised Statutes, section 1422, make it the duty of the commanding officer of a fleet, squadron, or vessel, to send to an Atlantic or Pacific port enlisted men, as their terms of enlistment expire, ' 'in some public or other vessel," "aa soon thereafter as may be, unless, in his opinion, the detention of such persons for a longer period should be essential to the public interests." This is not equivalent to a statutory salary, and may be voluntarily waived by the enlisted man in consideration of his being allowed to remain on board the vessel when she is about to sail to a foreign station. (Hunt v. U. S., 38 Ct. Cla., 135, approving 5 Comp. Dec, 514.) An enlisted man in the Navy who, in con- sideration of his being allowed to remaLa on his vessel, then about to proceed to Asiatic waters, gives a waiver of all claim to transporta- tion home should he refuse to reenlist and be discharged in a foreign port, can not maintain an action for the value of such transportation. (Hunt V. U. S., 38 Ct. Cls., 135, approving 5 Comp. Dec, 514.) An apprentice of the Navy, having been transferred from one vessel to another upon his request and upon his waiver of his right, on discharge in a foreign port, to transportation to the United States, is not entitled to reim- bursement of the cost of such transportation procured by himself. (9 Comp. Dec, 5.) The question here presented is not whether the Secretary of the Navy has the power to diminish or increase claimant's pay while in the service, which is the compensation fixed and established by law and given in considera- tion of and as compensation to claimant for his personal services. No such question is involved. The claimant having executed a proper agreement of waiver, on account of which he secured said transfer, and having received the benefit of such an agreement, the Government was under no obligation, under the circumstances, to furnish him transporta- tion to his home or place of enlistment. (9 Comp. Dec, 5.) Detention of man operates as extension of his existingf enlistment. — ^\^lere a man is detained in the Navy under section 1422, Revised Statutes, his existing contract of en- listment continues in full force and effect, and does not expire until his "regular dis- charge." (File 26254-1227:1, Nov. 19, 1913; 20 Comp. Dec, 377, modifying 19 Comp. Dec, 819.) Wlien a man is detained under this section because his service is essential to the public interests, the detention is a prolongation of the four-year term, and the four-year term still exists and continues to exist so long as the detention is authorized by the statute. If the commanding officer certifies that the detention was essential to the public interests, the man's enlistment was properly extended, under the act of August 22, 1912 (37 Stat., 331), on the date that the period of his detention expired, and for one year from that date. (20 Comp. Dec, 377.) The contract of enlistment contains the fol- lowing provision: "Secondly, I oblige and subject myself to serve fom* years from — , 19 — , unless sooner discharged by proper authority, and on the conditions provided by the act of Congress ' To amend section fourteen hundred and twenty-two of the Revised Stat- utes of the United States, relating to the better government of the Navy,' approved March 3, 1875, in the following words, to wit: * * * And I also oblige myself, during such service, to comply with, and be subject to, such laws, regulations, and discipline of the Navy aa are or shall be established by the Congress of the United States or other competent authority * * *." This contract is the same as that entered into by all persons enlisting in the Navy with the exception of those enlisted for minority, and it is commonly referred to as a four-year contract of enlistment to distinguish it from enlistments for minority. It will be noted, however, that the term of enlistment under the contract quoted is not for the defi- nite term of four years; but, on the contrary, it is expressly made "on the conditions pro- vided by the act of Congress" quoted in the enlistment contract. One of the very impor- tant "conditions" enumerated in said act, which extends and renders indeterminate the expiration of the so-called four-year term of enlistment, is, it will be noted, that the com- manding officer may, in his discretion, detain any enlisted man beyond the expiration of the period stated in the enlistment contract, under the circumstances stated in the law. During such time as the man is so detained he is, under the explicit terms of the law, "sub- ject in all respects to the laws and regiilations for the government of the Navy" until his "regular discharge." Hence, the period of enlistment could, at the discretion of the Government, in accordance with the terms of the contract and the law quoted therein, be either greater or less than the specified term of four years, and in the event of detention beyond the stated term of four years the enlistment contract was to continue in full force and effect until the man's "regular discharge." (File 26254-1227:1, Nov. 19, 1913; 20 Comp. Dec, 377.) 561 Sec. 1426. PL 2. REVISED STATUTES. The Navy. The status of an enlisted man detained by au- thority of section 1422, Revised Statutes, is just such as referred to by the Attorney Gen- eral (15 Op. Atfy. Gen., 152, Ifil) as an excep- tion to the rule that a man who enlists for a definite period is relieved of his obligation to serve at the end of the period. The Attorney General stated in part: 'Consequently, unless there exists some law when the contract is entered into providing for a contingent pro- longation of the terra beyond the period fixed by the statute, and the contingency happen within the term * * * with the last dav of the term his engagement necessar.ly expires, and with the expiration of his engagement the obligation to serve thereby imposed is also at an end." (20 Comp. Dec, 371.) Reentering to serve is a nevr enlist- ment. — When a man under this section reenters to serve until the return of the vessel, it is a reenlistment, and he can not dui-ing the period of such reenlistment extend his enlistment as proA-ided by the act of August 22, 1912 (37 Stat., 331), as that act requires the extension be made during the existing four-j^ear term of enlistment. (20 Comp. Dec, 377.) Sec. 1423. [Enlisted men subject to regulations while sent home or detained. Superseded.] This section provided as foUo-ws: "Sbc. 1423. All persons sent home, or detained by a commanding officer, according to the proAisions of the preceding section, shall be subject in all respects to the laws and regu- lations for the government of the Navy, until their return to an Atlantic port and their regu- lar discharge."— (17 July, 1862, c. 204, s. 17, V. 12, p. 610.) Sec. 1424. [Enlisted men, limit of detention. Superseded.] It was superseded by act of !March 3, 1875 (18 Stat., 484), which amended section 1422, Revised Statutes, and embodied proA^sions superseding tliis section and sections 1424 and 1425. See the existing provisions of section 1422 as given above This section provided as follows: "Sec. 1424. Persons so detained by a com- manding officer, or reentering to serve until the return to an Atlantic port of the A-essel to which they belong, shall in no case be held in service more than thirty days after their arrival in said port."— (17 July, 1862, c. 204, s. 17, v. 12, p. 610.) Sec. 1425. [Enlistment, shipping articles to contain provisions of preceding sections. Superseded.] It was superseded by act of Alarch 3, 1875 (18 Stat., 484), which amended section 1422, Revised Statutes, and embodied provisions superseding also sections 1423-1425, Revised Statutes. See the existing provisions of sec- tion 1422 as given above. vised Statutes, and embodied provisions super- seding also sections 1423-1425, Revised Stat- utes, and likewise superseding section 1572, Revised Statutes, referred to in this section, which contained a provision for additional pay to men detained after expiration of enlistment in accordance with section 1422. This section provided as follows: "Sec. 1425. The shipping articles shall con- tain the substance of the three sections next preceding and of section fifteen hundred and seventy-two."— (17 July, 1862, c. 204, s. 17, V. 12, p. 610.) It was superseded by act of March 3, 1875 (18 Stat., 484), which amended section 1422, Re- Sec. 1426. [Enlisted men, honorable discharge of.] Honorable discharges may be granted to seamen, ordinary seamen, landsmen, firemen, coal-heavers, and boys who have enlisted for three years. — (2 Mar., 1855, c. 136, s. 1, v. 10, p. 627. 7 June, 1864, c. Ill, v. 13, p. 120.) Amendment to this section was made by joint resolution of June 11, 1896 (29 Stat., 476), which extended the provisions of section 1426 to "all enlisted persons in the Nav-y"; and by act of August 29, 1916 (39 Stat., 560), which authorized honorable discharge of men who had served one year of a first en- listment. The latter act was repealed by act of March 4, 1917 (39 Stat., 1171). As to term of enlistment in the Navy, see sec- tion 1418, Revised Statutes, and note thereto. Bad-conduct discharges to enlisted men of the Navy and Marine Corps are authorized by sentence of summarj^ court-martial (sec. 1624, R. S., art. 30, as amended by act Feb. 16, 1909, sec. 8, 35 Stat., 621); and also by sentence of general court-martial (sec. 1624, _R. _S., art. 35)._ Burial in any national cemetery, free of cost, is authorized in cases of sailors or marines dying in a destitute condition after having been honorably discharged from the serv- ice; the production of honorable discharge of a deceased man is sufficient authority for the superintendent of any cemetery to per- mit the interment. (Sec. 4878, R. S., as amended.) 562 The Navy. rt. 2. REVISED STATUTES. Sec. 1426. Certificate in lieu of lost discharge was author- ized to be furnished to persons who served in the Na^-v or Marine Corps in the War of 1812, the Mexican War, or the Ci\-il War, by act of February 7, 1890 (26 Stat., 6). _ Certificate of discharge to be furnished in Civil- War cases where charge of desertion is re- moved from record of man who has not re- ceived a certificate of discharge. (Act Aug. 14, 1888, sec. 4, 25 Stat., 443, revived and reenacted bv act Mav 24, 1900, sec. 1, 31 Stat., 183.) Certificates of discharge in true names shall be issued to persons who enlisted or served un- der assumed names in the NaAy during the Ci\-il War, the War with Spain, the Philip- pine Insurrection, or during any war be- tween the United States and any other na- tion or people, and were honorablv dis- charged. (Act Apr. 14, 1890, 26 Stat, 55, as amended by acts June 25, 1910, 36 Stat., 824, and Aug. 22, 1912, 37 Stat., 324.) Compensation under War Risk Insurance Act not to be paid in cases of persons dismissed or receiAang a dishonorable or bad-conduct discharge from the serAdce. (Act Oct. 6, 1917, sec. 308. 40 Stat., 407.) Disability not in line of duty, refund of enlist- ment bounty when discharged for, may be required in certain cases. (Act Mar. 2, 1907, 34 Stat., 1176.) Discharge of minors who fraudulently enlist by swearing falselv as to their aee is required by act of March 3, 1915 (38 Stat., 931), quoted above under section 1418, Re\dsed Statutes. Dishonorable discharges to enUsted men of the Na^y and Marine Corps are authorized by sentence of general court-martial. (See sec. 1624, R. S., art. 63.) Dislionorable dis- discharge is bar to compensation under War Risk Insurance Act. (Act Oct. 6, 1917, 40 Stat., 407; see also act June 25, 1918, 40 Stat., 609.) Forging, counterfeiting, or falsely altering any certificate of discharge from the military or naval ser^dce, or ha^'ing same in jjossession, etc., punishable by fine and imprisonment. (Act Mar. 4, 1917, 39 Stat., 1182.) Gratuity and increased pay to be allowed holder of honorable discharge from the Naw who reenUsts within four months after such dis- charge. (Sec. 1573, R. S., as amended by act Mar. 3, 1899, sec. 16, 30 Stat., 1008, and further amended and reenacted bv act Aug. 22, 1912, 37 Stat., 331.) But this did not apply to men who received an honorable discharge after completing one year of a first enlistment, as authorized by act Au- gust 29, 1916 (39 Stat., 560), which act was repealed bv act March 4, 1917 (39 Stat., 1171). Gratuity of $60 to be paid all persons serving in the naval forces during present war who have resigned or been discharged under honorable conditions, or in the cases of reser'vdsts, been placed on inactive duty. (Act Feb. 24, 1919, sec. 1405, 40 Stat., 1151.) ■ Home on board any receiving ship, and one ration per day drudng a period of four months following discharge, to be fm-nished persons honorably discharged as authorized by section 1429, Re^dsed Statutes. (Act Feb. 8, 1889, 25 Stat., 657, as amended bv act Mar. 3, 1899, sec. 16, 30 Stat., 1008, and act Aug. 22, 1912, 37 Stat., 331.) See arti- cles R-3667 and 1-4551, Na\-y Regulations and Instructions, 1913. Inaptitude, refund of enlistment bounty when discharged for, mav be required in certain cases. ^(Act Mar. 2, 1907, 34 Stat., 1176.) Mileage allowed to men honorably discharged from Na^^ or Marine Corps, and na-\'al reservists honorably released from active ser^dce. (Act June 3, 1916, sec. 126, 39 Stat., 217, as amended bv act Feb. 28, 1919, sec. 3, 40 Stat., 1203.) National Home for Disabled Volunteer Soldiers: Honorably discharged sailors who served in the regular or volunteer forces of the United States in time of war, entitled to benefits of National Home. (Acts May 26, 1900, 31 Stat., 217; Jan. 28, 1901, sec. 5, 31 Stat., 745; Mar. 4, 1909, 35 Stat., 1012.) Natm-alization: Honorable discharge from Na\y or Marine Corps entitles holder to certain pri\dleges with respect to naturalization. (Act May 9, 1918, 40 Stat., 542.) Ordinary discharge with recommendation for reenlistment entitles Filipino to apply for naturalization after required serAdce in the Navy. (Act May 9, 1918, 40 Stat., 542.) Pensions: Honorable discharge from one con- tract of ser\dce during Ci^dl War held for pension purposes to be honorable discharge from all previous contracts of ser^dce during said war. (Joint resolution, June 28, 1906, 34 Stat., 836, amending joint resolution, July 1, 1902, 32 Stat., 750.) Honorable dis- charge necessary for receipt of pension in certain cases. (Act June 27, 1890, sec. 2, 26 Stat., 182, as amended by act Mav 9, 1900; act Feb. 6, 1907, 34 Stat., 879 ; 31 Sitat., 170; res., July 1, 1902, sec. 1,32 Stat., 750; sec. 4730, R. S.; act Jan. 29, 1887, 24 Stat, 371; act Mar. 9, 1878, 20 Stat, 27, etc.) Pen- alty for claim agents, attorneys, etc., re- taining or refusing to deliver honorable-dis- charge papers to owners thereof is proAdded for by act of May 21, 1872 (17 Stat, 137). Preference in ciAdl ser^dce: Persons honorably dischai'ged from militar}^ or naval ser^dce by reason of disability resulting from wounds or sickness incurred in line of duty to be preferred for appointments to civil offices. (Sec. 1754, R. S. ; see also acts Jan. 16, 1883, sec. 7, 22 Stat, 406; Mar. 1, 1889, sec. 5, 25 Stat., 762; Mar. 6, 1902, 32 Stat., 52; Mar. 3, 1905, 33 Stat., 1088.) Honor- ably discharged soldiers, sailors, and ma- rines, and widows and wives of such, en- titled to preference in appointments to clerical and other positions under the Gov- ernment. (Act Mar. 3, 1919, sec. 6, 40 Stat., 1293; see also act Mar. 1, 1919, 40 Stat, 1224; act July 11, 1919, 41 Stat, 37; act July 11, 1919, 41 Stat, 142; act Oct 28, 1919, 41 Stat, 319.) Preference in civil service: In making any re- duction of force in any of the executive de- partments, preference to be given to reten- tion of persons honorably discharged from military or naval ser\dce and to widows and orphans of deceased soldiers and saUors. 563 Sec. 1426. Pt. 2. REVISED STATUTES. The Navy. (Act Aug. Id, 1S76, sec. 3, 19 Stat., 169; see ' also act Aug. 23, 1912, sec. 4, 37 Stat., 413.) I Preference in private employment: Respect- j fully recommended by Congress to bank- { ers, mercliants, manufacturers, mechanics, i farmers, and persons engaged in industrial I pursuits, to give preference in appoint- ments to persons honorably discharged from the military or naval service by reason of wounds, disease, or the expiration of terms of enlistment. (Sec. 1755, R. S.) Purchase of discharge from Navy or Marine Corps in time of peace is permitted in the discretion of the President and under such rules as he may prescribe. (Act Mar. 3, 1893, 27 Stat., 717.) Fiirlough for remain- der of enlistment, subject to recall in time of war or national emergency, in lieu of discharge bv purchase, was authorized bv act of Aug. 29, 1916 (39 Stat., 580). Reinstatement of former Government em- ployees who served as drafted or enlisted men in war with Germany, if honorably discharged, was authorized by act of Feb. 25, 1919 (40 Stat., 1164). See also act Julv 11, 1919 (41 Stat., 142). Report of men entitled to honorable discharge to be made to Secretary of the Navy by everj' commanding officer of a vessel. (Sec. 1429, R. S.) Undesu-able discharge, during first year of enlistment, may result in refund of enlist- ment bounty. (Act Mar. 2, 1907, 34 Stat., 1176.) Uniforms may be retained and worn with dis- tinctive insignia, by persona honorably discharged from the Navy or Marine Corps, after serving in the present war. (Act Feb. 28, 1919, 40 Stat., 1202; see also act June 3, 1916, sec. 125, 39 Stat., 216, as amended by act Aug. 29, 1916, 39 Stat., 649; and act June 4, 1920, sec. 8, 41 Stat., 836.) Historical note. — The act of March 2, 1855 (10 Stat., 627), providing in the first instance for honorable discharges, is entitled "An act to provide a more efficient discipline for the Navy," and section one of that act gixes author- ity to the Secretary of the Navy to grant the hon- orable discliarge as a testimonial of fidelity and obedience to those of the crew who enlisted for three years he might deem entitled thereto, while section two provides that " if any seaman, ordinary seaman, landsman, or boy shall re- enlist for three years, within three months after his discharge, he shall, on presenting his honor- able discharge, or on accounting in a satisfac- tory manner for its loss, be entitled to pay dur- ing the said three months, equal to that to which he would have been entitled if he had been employed in actual ser\'ice. ' ' This shows, from the origin of this legislation, the distinc- tion between the honorable discharge per se and the honorable discharge as carrying to cer- tain classes of enlisted men, originally only four, the three months' extra pav. (2 Comp. Dec, 608.) The act of June 7, 1864 (13 Stat., 120), added two other classes to whom an honorable dis- charge carried with it the privilege of extra pay upon reenUstment, to wit, firemen and coal heavers, the lowest grades in that branch of the service the same as the four lowest grades in the seamen branch of the service were allowed such extra pay upon reenlistment. (2 Comp. Dec, 608.) The Navy Regulations of 1876 (p. 100, par. 13) for the first time substituted the words " any person " for the words " any seaman, ordi- nary seaman, landsman," etc., in providing for the payment of extra pay upon reenlistment. How this change came to be made is not appar- ent, and no reason can be assigned therefor, unless it be that the honorable discharge pro- vided for in section 1429, Revised Statutes, was confounded with that of section 1426 and sec- tion 1573. (2 Comp. Dec, 608.) The joint resolution of June 11, 1896, ex- tended the benefits conferred by sections 1426 and 1573, Revised Statutes, to all enlisted per- sons now in the Navy, and authorized the passing of accounts of pajinasters containing payments of extra pay to all enlisted men as though they had been included in said sections. Under this resolution payment may now be made to an enlisted man who reenhsted prior to its passage and whose claim for extra pay was pending before the paymaster but not actually paid be- fore June 11. (2 Comp. Dec, 608.) The purpose of this resolution of 1896 was to legalize the practice of paying all enlisted men, upon reenlistment, the extra pay, which prac- tice had crept into the service without warrant of law. This practice doubtless arose from the fact that the honorable discharge provided for in section 1429, Revised Statutes, was confused with the honorable discharge granted under sec- tion 1426. The object of the honorable dis- charge provided for in section 1429 is stated in that section to be "as a testimonial of fidelity and obedience," while the honorable discharge provided for in section 1426, taken in connec- tion with section 1573, is seen to be for the purpose of holding out the extra pay to the six lowest classes of enlisted men in the Navy as an inducement to reenllst. That this very evi- dent intention of the law was recognized by the Navy Department appears from an examina- tion of the older regulations of the U. S. Navy. But by the joint resolution cited, Con- gress has seen fit to extend the privileges arising from honorable discharges upon reenlistment far beyond what was originally provided. (2 Comp. Dec, 608.) As to term of enlistment in the Navy, see note to section 1418, Revised Statutes. Classes of discharges in the Navy. — Under the Navy Department there long have been and are now four kinds of discharges, namely, expressly honorable, dishonorable after court-martial [i. e., general court-mai'tlal], for "bad conduct," also after court-martial [i. e., either general court-martial or summary court- martial], and "ordinary," familiarly called "small" discharge. (28 Op. Atty. Gen., 83.) "Honorable" and "ordinary" discharges distinguished. — The "honorable discharge" in the cases referred to in section 1573, Revised Statutes, is that provided for in sections 1426 and 1429, Revised Statutes, and is dependent upon fidelity and obedience in the service. It differs from the "ordinary" discharge in that the latter carries with it no testimonial as to the 564 The Navy. Pt. 2. REVISED STATUTES. Sec. 1426. special good qualities and fitness of the holder. It is the record shown by the "honorable" dis- charge, coupled with service and reenlistment, that entitles the seaman to increased pay under section 1573. (4 Comp. Dec, 281.) The so-called "ordinary discharge" in the Navy has no express legislative authority, but is the creature of regulation and long-estab- iished administrative practice. Only the hon- orable discharge, bad-conduct discharge, and dishonorable discharge are provided for by laws relating to the Navy. If it were attempted to classify the ordinary discharge under one of these statutory headings, it would necessarily have to be grouped with the honorable dis- charge, because neither bad-conduct nor dis- honorable discharges can be issued without sentence of court-martial. In some cases, how- ever, ordinary discharges are issued under cir- cumstances where it could hardly be said by military men that the holder left the service under honorable conditions; as one discharged prior to completion of enlistment for physical disability due to his own misconduct. (File 9209-114, Mar. 11, 1919.) The technical "honorable discharge" in the Navy is issued with few exceptions only to those who have completed a full term of en- listment. An "ordinary discharge" may, however, constitute a man "honorably dis- charged" from the Navy within the meaning of the law providing for mileage on discharge. The ' ' ordinary discharge ' ' blank does not expressly characterize the discharge as honor- able or otherwise. It does, however, state, either expressly or by reference to an order of the Department, the reason for the discharge, and at the end of the blank under the head- ing of ' ' character of discharge " is a place in which is to be entered "good," "inaptitude," or "undesirable," as the case may be. In cases where the character of discharge is expressly stated to be "good," it certainly should be regarded as honorable within the meaning of the mileage law. "Inaptitude" does not import that the discharge is otherwise than honorable. Neither is the entry "unde- sirable" of itself sufficient to deprive the dis- charge of an honorable character, for the man's undesirability for the service might be due to causes in no manner reflecting upon him. It would seem that any discharge which is not honorable should contain on its face entries from which it can be determined with cer- tainty that it is not an honorable one, and that where such does not appear upon the face of the discharge it should be regarded as hon- orable. (File 9209-114, Mar. 11, 1919, con- struing mileage, act of June 3, 1916, sec. 126, 39 Stat., 217, as amended by act of Feb. 28, 1919, sec. 8, 40 Stat., 1203; see also 25 Comp. Dec, 771; 25 Comp. Dec, 792.) The Bureau of Navigation may properly de- termine what cases of ordinary discharges are regarded as constituting the holders thereof "honorably discharged" persons ^vithin the meaning of those words as used in the mileage law, as construed by the Judge Advocate Gen- eral, or within the meaning which they have acquired by administration practices in the Army not incompatible with conditions exist- ing in the Navy. (File 9209-114, Mar. 11, 1919.) Honorable discharges in Army and Navy not necessaiily same. — In using the phrase "honorably discharged " Congress did not neces- sarily intend it to have the same definition in both the Army and Navy. One department might treat one kind of conduct as inconsistent with the allowance of an honorable discharge and the other not, according to practical con- siderations and the traditions of the two serA- ices. In both serA-ices "dishonorable dis- charge " was given only after a trial by court- martial and as a punishment. In the Army, in case of discharge for cause, without courts martial, it was customary to state on the cer- tificate that discharge was in pursuance of an order, giving the number thereof, and this order must be referred to to learn the specific cause. There seems to be no statutory provision for a certificate of express honorable discharge from the Armv such as in the naval service is called for bv Revised Statutes, section 1427. (28 Op. Atty" Gen., 83.) When payment of mileage was authorized to men ' ' honorably discharged from the Army, Navy, or Marine Corps," the words "honorably discharged " were used in the same broad sense with reference to the Navy that they have with reference to the Army. As applied to the Army these words do not have a restricted meaning such as ordinarily attaches thereto in naval parlance, and as the benefits of the law are intended to be granted to both services without discrimination, held, that an enlisted man of the Navy should be regarded as "honorably discharged" if his discharge was of a kind generally regarded as an honorable one "by the War and Navy Departments and military men of the branch in question at the time the separation or discharge took effect." (File 9209-114, Mar. 11, 1919.) Honorable discharge may be issued in cases not expressly authorized by stat- ute. — When Congress use the phrase "honor- ably discharged " with reference to persons who have served in the Navy, its language is not necessarily limited to express honorable dis- chargee granted under sections 1426 and 1427, Revised Statutes, but may be construed as in- tended to adopt or act upon the actual past dis- charge as an honorable one if of a kind generally so regarded by the Navy Department and mili- tary men of that branch of the service at the tinie the separation or discharge took place. The question is not to be determined by the recent or present opinions of such department or naval men, concerning discharges happening at the time of the Civil War or shortly after; but is whether the discharge when granted belonged to a class then commonly accepted among naval men and at the Navy Department as consti- tuting a man an "honorably discharged" per- son. In other words, it is not a question of what should have been granted, but what was grant- ed. (28 Op. Atty. Gen,, 83.) The naval authorities may issue so-called '•'honorable discharges" as pro\-ided by Navy Regulations, but such discharges can not carrj- the right to pay and other benefits except when issued in conformitv with the law that author- izes such extra pay. The fact that he has re- ceived an honorable discharge pursuant to ^a,^y Regulations does not give him the statue of one 565 Sec. 1426. Pt.2. liFAnSED STATUTES. The Navy. receiving; an lionorablc tliaeharj;e authorized by eectiou 1426, Revisod Statutes, or the statue of one in some one of the clafisefl specified in sec- tion 1573 as entitkHl to extra pay for reenlist- ment. (2 C'onip. Dec, 5G3.) The three months' extra pay for reenlistment allowed by section 1573, Revised Statutes [prior to amendment of that section), to seamen, ordi- nary seamen, landsmen, firemen, coal heavers, and boys, was limit(>d to the six grades of en- listed men mentioned, and coidd not be allowed to a person enlisted as a steward. (2 Comp. Dec, 536.) A steward to the commander in chief was not one of the classes entitled to an honorable dis- charge as provided in section 1426 [prior to amendment of that section], which discharge was a prerequisite to obtaining the advantages of extra pay pro\dded for in section 1573. (2 Comp. Dec, 536.) A man enlisted in the Navy as a writer, third class, and granted an honorable discharge under section 1429, Revised Statutes, as a yeoman, after three years' service, was not entitled to the extra pay for reenlistment allowed by section 1573 [prior to amendment of that section], to the six classes of enlisted men named therein. (2 Comp. Dec, 563.) Character of discharge issued to enlisted man is question for determination by War or Navy Department. — The War and Navy Departments are parts of the executive branch of the Government, ha^•ing to do with a man's discharge from the service as an executive mat- ter, and having special care and executive charge of the man's service and of his military honor and standing. This charge they have while the man is in the service, and until the moment he leaves it. ^Miether he should go wither without honor, these departments de- termine when they part from him. \Mien they do so determine, they become, at least in the absence of fraud or gross mistake, functus officio, and the executive branch of the Govern- ment thereby becomes fimctus officio. (28 Op. Atty. Gen., 83.) The question whether a man was "honor- ably discharged" from the Navy within the meaning of the law providing for payment of mileage on discharge, although a question in- volving disbursements, is one for determina- tion by the Navy Department and not by the accounting officers. (File 9209-114, Mar. 11, 1919, citing 28 Op. Atty. Gen., 83, 90; 21 Comp. Dec, 539-547.) In determining the pensionable status of a person who served in the Civil War, under the acts of Jime 27, 1890 (26 Stat., 182), and of February 6, 1907 (34 Stat., 879), the Department of the Interior is concluded by the terms of a discharge granted by the Navy Department as "honorable." (28 Op. Atty. Gen., 83.) By using the words "honorably discharged" in the acts above referred to, Congress intended to adopt or act upon the actual past discharges as honorable, if of a kind generally so regarded by the War and Navy departments and military men of the branches in question at the time the separation or discharge took place. (28 Op. Atty. Gen., 83.) In any case, in determining, long after dis- charge, the nature of the discharge issued, whether what was formerly done as an executive act did or did not constitute the individual a person "honorably discharged" — "of course, from a practical standpoint, and as expert evidence, it would be well to consider any pres- ent views of the two military departments upon the question whether or not the original act was the granting of an honorable" dis- charge. Those departments, even when no longer in charge of the person, should and do take an interest in the honor of the men who have served their country, and that honor is, with military men, the most important con- sideration of their lives." (28 Op. Attv. Gen., 83.) "It is peculiarly the province of the War Department to make deductions of fact from the records of military service of which that de- partment is the natural and legal custodian, and to decide military questions which relate not only to the entrance into ser\dce but also the cause or manner of severance from ser^dce of officers and enlisted men." (21 Comp. Dec, 539, 547. But see 20 Comp. Dec, 751, note to sec. 236, R. S., tmder V, (A), "The question whether or not the record of an en- listed man in the Marine Corps is honest and faithftil.'') See, in this connection, cases noted under section 471, Revised Statutes, "Jurisdiction, Commissioner of Pensions." Eilect of discharge. — The honorable dis- charge of a soldier is a formal, final judgment passed by the Government on his entire military record, and an authoritative declaration that he left the ser^dce in a status of honor. (U. S. V. Kelly, 15 Wall., 34.) The Kelly case held that an honorable dis- charge entitled a deserter to recover any pay or bounty earned subsequent to his restoration to duty, but it was not pretended that his honor- able discharge, subsequently granted, gave him a right to pay dining the period of his absence from the service, or would have dispensed with the forfeiture of pay incident to his desertion, had any pay been due at the time. (File 26251-1963:1, Aug. 17, 1910, citing U. S. v. Landers, 92 U. S., 77, 80.) The mark of desertion entered on the record of an enlisted man is not removed by his sub- sequent honorable discharge. The case of II. S. V. Kelly, as explained in U. S. r. Landers, does not hold that an honorable discharge has the effect of removing an existing mark of desertion, nor that in consequence of such dis- charge the departement's records should be altered so as to show an incorrect state of facts, and the Kelly case clearly does not authorize such action to be taken. The Landers case states that, "if the entry of desertion has been improperly made, its cancellation can be ob- tained by application to the War Department," thus clearly holding that the mark of desertion is not removed by the honorable discharge subsequently issued to the deserter, but that, on the contrary, its cancellation is dependent upon an express determination by the' depart- ment that it was "improperly made." The fact that the deserter subsequently received an honoi'able discharge does not affect the question of removing the mark of desertion from his record. (File 26251-1963:1, Aug. 17, 1910.) 566 The Navy. PL 2. REVISED STATUTES. Sec. 1426. A discharge from the Navy operates in bar of trial for a previous desertion from the Navy, but not in bar of a previous offense committed in the Marine Corps. They are distinct branches of the service, and a discharge from the former does not operate as a discharge from the latter. (File 26251-5810:1, Feb. 20,^ 1912.1 The discharge of a man before having been fully checked the amount of a court-martial sentence operates as an implied remission of the unexecuted portion of the sentence. (See Comp. Dec, Apr. 6, 1914, 158 S. and A. Memo., 3035, note under sec. 236, R. S., "_VI. Set-off".) [But permitting man to extend his enlistment, instead of discharging him, under such circum- stances, does not operate as an implied remis- sion. (FHe 26806-131:44, Aug. 11, 1916.)] The discharge of an enlisted man, while in debt to the United States (other than indebted- ness caused by sentence of court-martial not fully checked) does not remit the amount of such indebtedness, but if he is subsequently reenlisted same may be checked against pay coming due him under his current enlistment. (Comp. Dec, Apr. 7, 1914, 158 S. and A. Memo., 3037; see note to sec. 236, R. S., "VI. Set-off.") Under the Articles of War, prescribing limi- tations for triiils by court-martial, it would seem that a soldier may be arrested and tried after the expiration of his term of service for a military offense committed during such term of service, so that the order for the court-martial is issued within two years from the commission of such offense. The case of Lord George Sack- ville, as reported by Tytler in his treatise on courts-martial, goes to sustain the jurisdiction of the naval authorities to arrest and try the offender, as well after the discharge from serv- ice as before. (In re Bird, 3 Fed. Cas. No. 1428. See below, "\\Tien discharge takes effect," and see, in this connection, note to Constitution, Art. I, sec. 8, clause 14, under "IV. Jurisdiction of Courts-Martial." See also file 28550-951:3, May 13, 1919, and sec 1624, R. S., art. 14.) Service as marine counted in computing threeyears' service forhonorabledischarge from Navy. — An enlisted man of the Marine Corps who was transferred, by author! tv of the act of June 17, 1898 (30 Stat., 474), to the Hospital Corps of the Navy, is entitled to credit for the prior ser^-ice in the Marine Corps, in the same en- listment he is serving out in the Hospital Corps, in making up the time necessary to entitle him to the honorable discharge provided for in sec- tion 1426, Re\'ised Statutes, as amended. This section applies to enlisted men of the Navy, but when, by authority of law, the Secretary of the Navy transfers an enlisted marine to the Hos- pital Corps of the Navy, it is only a fair and reasonable construction of section 1426 to hold that it permits the prior service in the Marine Corps, in the same enlistment that he is serving out in the Hospital Corps of the Navy, to be credited to him in making up the time neces- sary to entitle him to an honorable discharge, particularly in view of the fact that this is a beneficial statute and that such construction will carry out the well-settled policy of the Government to encourage continuous service and reenUstment of efficient men, who are the only ones under Navy Regulations who can receive such discharges, even after the full service of three vears required. (11 Comp. Dec, 700; see also file 5315-04, July 5, 1904, noted under sec 1421, R. S.) Honorable discharge of de facto enlisted man. — One Kato Notaich enlisted as mess at- tendant, for four years; not liking the service, after one day's duty, he left; in his stead there appeared Gonhichi Yamamoto, who states that he was received on board ship as Kato Notaich; although never regularly enlisted, he served the full term of enlistment, and was honorably discharged; thereafter he reenlisted under his true name: Held, that he was entitled to the benefits of his de facto enlistment and honorable discharge therefrom, and that continuous serv- ice certificate should be issued to him in his true name. (File 5839-04, July 5, 1904.) In this connection, see Op., J. A. G., Armv, Feb. 26, 1901, Circular, War Dept., March 18, 1901, holding that undoubtedly men can become soldiers in the military service of the United States without formal enlistment; and if a man who has signified his intention to enter the military service is clothed, fed, armed, put on duty — made a soldier of in fact — he becomes a soldier in the service of the United States, even though he is never "sworn," mustered, or otherndse formally accepted into that service. Power of courts to discharge enlisted men.— In 12 Op. Atty. Gen. , 258, 266, it was held that the authority conferred upon the Secretary of War in regard to the discharge of Army recruits, is not declared to be exclusive, and it may well be doubted whether such power conferred upon a merely ministerial officer can be held to oust judicial inquiry upon habeas corpus into the legality of the enlistment. (See also note to sees. 761 and 1419, R. S. ; and see act of Mar. 3, 1915 (38 Stat., 931), quoted above, under sec. 1418, R. S.,with reference to discharge of minors fraudulently enlisted in the Navy.) Naturalization of honorably discharged enlisted men. — Section 1418, Re\ised Stat- utes, required enlistments in the Navy to be for not exceeding five years; and section 1608 de- clared that enlistments in the Marine Corps should be for not less than five years. At the same time honorable discharges were granted to those who had ful filled the three-vear enlistment in the Navy. (Sec. 1426, R. S.) the act of July 26, 1894 (28 Stat., 124), provided for the naturali- zation of aliens who served five consecutive years in the Na\'y and received an honorable discharge. At the time this act was passed, it was possible for persons who were in the naval ser^-ice to produce evidence in the form of a certificate of honorable discharge covering a full five-year term of enlistment, or it was possible at "that time to have proof of a shorter term of enlist- ment covered by an honorable discharge and proof of continued service under a further en- listment. It may have been the intention of Congress to require proof of five consecutive years of servdce and a certificate of honorable discharge covering such whole period. But by act of March 3, 1899, section 16 (30 Stat., 1008), the term of enlistment in the Navy was changed to four years, and by act of March 3, 1901 (31 Stat., 1132), enlistment in the Marine Corps was reduced to four years. The change in the term \ of enlistment in" the Navy brings with it a cor- 567 Sec. 1426. PL 2. REVISED STATUTES. The Navy. respondinp: modification in the requirements of the naturaliziit-ion statute; otherwise its objecta have been practically frustrated. Ilence, proof of an alien's service of a four-year term of enlistment in the Navy, his honorable dis- charfje, ami his immediate reenlistment for a further term of four years, the proof showdng five continuous years of service, is sufficient under the act of July 26, 1894. (In re Brykczynski, 207 Fed. Rep., 813. By act June 30, 1914 (38 Stat., 395), naturalization of aliens was authorized upon evidence of service in the Navy or Marine Corps of one enlistment "of not less than four years," followed by an honorable discharge, or an ordinary discharge with recommendation for reenlistment; and by act of May 22, 1917 (40 Stat., 84), naturalization of aliens was authorized after one year's honor- able service in the Naval Reserve Force. New provisions for naturalization of persons having service in the Navy and Marine Corps were contained in act of May 9, 1918, 40 Stat., 542, which expressly repealed the act of June 30, 1914, 38 Stat., 395.) Necessity of certificate of discharge. — "A soldier can not discharge himself," and until he has been discharged by competent authority his original contract continues bind- ing upon him. It has been the practice in the Navy to enter the mark of desertion against men who leave the service without receiving a discharge, although they may have satisfac- torily completed their terms of enlistment, and this practice was given legislative recog- nition by the act of Congress approved August 14, 1888 (25 Stat., 442), section 1 of which authorized the Secretary of the Navy to remove the mark of desertion in certain of such cases, but made it discretionary with him to do so or not. (File 26251-5447, Dec. 8, 1911; see also note to sec. 1418, R. S., under "Detention of men after expiration of enlistment.") WTiile there is no provision of law expressly requiring that enlisted men of the Navy be discharged in writing, as is required in the Army (sec. 1342, R. S.^ art. 4), Congress has re- peatedly in its legislation relating to the Navy emphasized the necessity of a "discharge" for the purpose of terminating an enlisted man's obligation to the United States. (File 26251- 5447, Dec. 8, 1911; Op. Atty. Gen., Feb. 27, 1922, file 26251-26615:8.) In American and English Encyclopedia of Law, volume 20, page 628, title "Military Law," it is stated that "The connection of an enlisted man with the military or naval service is regularly terminated by his death or dis- char™." In support of this statement there is citecl, among others, the case of Grant v. Gould (1792), in which it wa's held that "a person in pay as a soldier is fixed with the character of a soldier; and if once he becomes subject to the military character he never can be released but by a regular discharge." (2 H. Bl., 69, 104.) However, it should be remarked that when this decision was rendered enlistments in England were for life. (File 26251-5447, Dec. 8, 1911.) The correct view appears to be that enlist- ment, like marriage, is not merely a contract, but a status; and although an enlisted man may have fully performed his contract he can not divest himself of his status as a person in the military or naval service until regularly dis- chargeci by competent authority. (File 26251- 5447, Dec. 8, 1911.) Status of enlisted men not discharged upon expiration of enlistment. — See note to section 1408, Revised Statutes, under "Status of mates when not discharged upon expira- tion of enlistment." See also note to section 1418, Revised Statutes, under "Detention of men after expiration of enlistment." Revocation of discharge obtained by fraud. — An honorable discharge, a certificate of which a man obtained by falsehood and perjury, must be treated as a nullity. (16 Op. Attv. Gen., 349, 352; followed 28 Op. Atty. Gen., 170^ Where an enlisted man obtained a discharge from the Marine Corps upon condition that he would enlist immediately in the Navy as a hospital apprentice and then failed so to enlist, the discharge may be canceled and the man declared a deserter; if apprehended, he may be tried by court-martial both for desertion and conduct to the prejudice of good order and discipline. (File 7657-159, Aug. 10, 1912; C. M. O. 6, 1915, p. 9; see also file 26251- 6599; compare cases noted under sec. 1421, R. S.) The Secretary of the Navy has authority to revoke the discharge of an apprentice seaman procured by fraud, and may resume jurisdic- tion over the man. In this case the man made a bogus confession, claiming that he had com- mitted a murder for which he was wanted by the civil authorities, and after his discharge and delivery to the civil authorities repudiated his confession. (28 Op. Atty. Gen., 170.) Revocation of discharge issued under illegal sentence of court-martial. — ^WTiere, by the sentence of a court-martial, a soldier is discharged from the service before the expira- tion of his term of enlistment, and such sentence is afterwards set aside as null and void, the status of such soldier is not affected in any way by such sentence, and he is deemed to have been in the service all the time between the sentence and the order setting it aside. (In re Bird, 3 Fed. Cas. No. 1428; see also note to sec. 1624, R. S., art. 32.) Correction of errors in discharge. — The War Department has power to correct mistakes made in granting discharges to soldiers. (13 Op. Atty. Gen., 201; but see 13 Op. Atty. Gen., 16".) 'When discharge takes effect. — Until a soldier's discharge is issued and delivered to him, or until such action is taken as to make him legally chargeable with notice of his dis- charge, he remains in the service. (2 Comp. Dec, 95.) A soldier having been absent on furlough at the time of the discharge of his company, and the certificate of his discharge having been mailed to him, his discharge did not take effect until he received the certificate or other notice thereof. (6 Comp. Dec, 11. )_ An enlisted man of the Marine Corps remains in the service until receipt of his discharge or until such action, is taken as will render him legally chargeable with notice thereof, notwith- standing the expiration of his term of enlist- ment during his absence on furlough granted at his own request. (2 Comp. Dec, 94; Dig. Comp. Dec, 433.) 568 The Navy. Pt.2. REVISED STATUTES. Sec. 1427. An enlistment does not expire until midnight of the last day of the term, and a discharge by reason of expiration of enlistment is not effec- tive prior to midnight although delivered at an earlier hour of the day. Accordingly, held that a man who died upon the last day of his enlistment after the delivery of his discharge by reason of the expiration of his enlistment was in the status of an enlisted man in the service at the time of his death. (File 27381-31 Feb. 5, 1917.) A discharge as undesirable is effective when delivered, and a man who was overpaid when so discharged could not later on the same day, upon discovery of the error, be legally brought back to the ship and detained for disciplinary action by the naval authorities upon refusal to refimd the amount of overpayment. (File 26254-70, July 8, 1908.) Where an offense is committed by a man on the day but subsequent to the delivery of his discharge, if the discharge was for any cause other than expiration of enlistment, he was not in the naval service when the offense ?vas com- mitted, and therefore could not be tried by court-martial for such offense notwithstanding his reenlistment on the next day. If the dis- charge was by reason of expiration of enlist- ment, he was in the naval service when his offense was committed, his discharge not hav- ing become effective until midnight of that day. Although the question is not free from doubt, it is considered that, if a case of sufficient im- portance, the man who reenlisted the next day should, if his discharge was by reason of expi- ration of enlistment, be brought to trial by court-martial to the end that he might present the jurisdictional question to the civil courts by habeas corpus proceedings. If the offense is discovered, and the accused placed under arrest to await action, before his discharge takes effect, the general rule is that jurisdiction has thus attached and is not divested by any subsequent change in the status of the accused. (File 26504-298, Feb. 26, 1917. See also file 28550-9513, May 13, 1919, In re Bird, 3 Fed. Cas. No. 1428, and sec. 1624, R. S., art. 14.) Theft of honorable-discharge blanks. — An enlisted man who steals honorable-discharge blanks and is then discharged from the naval service with a bad-conduct discharge, prior to detection of the theft, may, when appre- hended, be proceeded against in the ci\'il courts of the United States for A-iolation of section 47 of the Federal Triminal Code (act Mar. 4, 1909, 35 Stat., 1097), or may be tried by a naval court-martial for \dolation of sec- tion 1624, article 14, Revised Statutes, the same as though he had not been discharged, as is specifically provided therein. (See file 26283-977, Feb. 14, 1916. In this case, it was decided to try the accused in the civil court; see file 26283-977:10, June 2, 1916.) From the Navy Department's point of \dew the theft of honorable-discharge blanks is of a quite serious nature, and the quantum of punishment to be imposed upon conviction should be governed in a measure by con- siderations looking to a prevention of similar thefts by others. Honorable discharges are by law and regulations awarded only to men who have earned same by years of efficient and honorable service in the Na\'y; and such discharges entitle the holders to numerous and substantial benefits from the Government. Furthermore, in civil life the exhibiting of an honorable discharge from the Na^•y opens the door for the holder to employment by private business institutions of the highest standing as well as by Federal, State, and municipal governments. Accordingly, where a man has been apprehended who is confessedly guilty of stealing such blanks, he should not be allowed to escape too lightly. (File 26283- 977:10, June 2, 1916; see 8 Comp. Dec, 756.) Where a person buys and sells honorable- discharge blanks belonging to the Navy, it would seem that he is guilty of violating sec- tions 37 and 48 of the Criminal Code (35 Stat., 1096, 1098). (File 26509-163:2, July 29, 1916.) Counterfeiting honorable-discharge blanks. — AMiere honorable discharge blanks are counterfeited and sold, it is possible that prosecution may be had under sections 148 or 151 of the Criminal Code (35 Stat., 1115, 1116), which relate to counterfeiting and selling " any obligation or other security of the United States." These words do not in their ordi- nary signification include honorable-discharge blanks, but by section 147 of the Criminal Code (35 Stat., 1115) they are given a broad defini- tion, embracing any "representatives of value " issued under any act of Congress. That honorable-discharge certificates are "repre- sentatives of value" would seem clearly to follow from an examination of vari.ous statutes relating to such discharges. [See laws noted above, under this section.] In the opinion of the Navy Department prosecution may l)e had under the above sections of the Criminal Code, but this is a question to be decided by the Department of Justice. (File 26509-163:2, July 29, 1916. Congress has since provided specifically for the offense of forging, etc., cer- tificates of discharge. See act Mar. 4, 1917, 39 Stat., 1182.) Sec. 1427. [Enlisted men, form of honorable discharge.] Honorable dis- charges shall be granted accordmg to a form i^reseril)ed by the Secretary of the Navy.— (2 Mar., 1855, c. 136, s. 1, v. 10, p. 627. 7 June, 1864, c. Ill, v. 13, p. 120.) Continuous service certificates. — On April 26, 1869, the Secretary of the Navy issued a circular providing that all enlisted men, except officers' cooks and stewards, "will re- ceive, upon the expiration of their enlistments, if they shall so elect, continuous-service cer- tificates in lieu of the ordinary or honorable discharges heretofore issued"; and providing additional pay for persons holding continuous- service certificates. The pro\dsions of this cir- cular were incorporated in Navy Regulations, 1870, as articles 1070 and 1071, and with some 569 Sec. 1427. Pi. 2. REVISED STATUTES. The Navy. verbal changes appear as paragraphs 18 and 19, Navy Regulations, 1876. These regulations were amended by General Order No. 327, dated November 21, 1884, which provided in part as follows: "From and after January 1, 1885, the form of honorable discharge from the naval service, authorized by section 1427, Revised Statutes of the United States, shall be the 'honorable discharge and continuous-service certificate.'" After this order there was no provision for issuing continuous-service certifi- cates, except in connection vvdth an honorable discharge, and that was clearly the purpose of the general order of November 21, 1884. (16 Comp. Dec, 354.) "Any man who, having been honorably dis- charged, or discharged with a recommendation for reenlistment, shall within four mouths there- after, reenlist for four years, shall receive in ex- change for his discharge a continuous-service certificate- and any man who shall have agreed to extend nis term of enlistment for an aggregate of four full years shall receive, after completing the original four years for which enlisted, a con- tinuous service certificate covering that period . ' ' (Art. R-3529, Navy Regs., 1913.) Form of honorable discharge.— "When- ever any enlisted man, not holding a continuous- service certificate, is discharged from the naval service, either the form of honorable or that of ordinary discharge shall be used." (R-3611 (1), Navy Regs., 1913.) "If the person discharged holds a continuous- service certificate, neither form of discharge will be necessary, but the appropriate column of the certificate shall be filled out, and the character of the discharge, such as ' honorable, ' ' ordinary, ' 'bad conduct,' or 'dishonorable' shall be desig- nated therein; if either of the last two, a brief statement of the cause shall be made in an indorsement." (R-3611 (3), Navy Regs., 1913.) "Should there be no honorable discharge forms at hand upon the expiration of the term of enlistment of any person who is entitled to receive one, an ordinary discharge form may be used; the words 'entitled to honorable dis- charge,' however, must be written across the face and signed by the commanding officer. The holder thereof may, by communicating with the Bureau of Navigation, Navy Depart- ment, exchange such a paper for an honorable discharge." (R-3613, Navy_ Regs., 1913.) The form of honorable discharge which has been prescribed by the Secretary of the Navy under authority of this section (N. Nav. 56, July, 1921) is headed "Honorable Discharge from the United States Navy," has a serial number, an engraving representing a battleship at sea, is signed by the commanding oflacer, bears notation as to the rating the man is best qualified to fill, and reads as follows: ' 'This is to Certify that is hon- orably discharged from the and from the Naval Service of the United States, this day of " On the reverse of the discharge form is given the enlistment record and descriptive list of the man to whom issued, together with certificate of final payment. 570 CHAPTER TWO. GENERAL PROVISIONS RELATING TO OFFICERS. Sec. 1428. Citizenship of officers. 1429. Report to be made of men entitled to honorable discharge. 1430. Sale of wages to be discouraged. 1431. Leave and liberty to be granted by com- manding officer. 1432. Commanding officers not required to act as pay officers. 1433. Cormnanding officers may exercise con- sidar powers. 1434. Commanding officers of squadrons to have rank of "flag officer. " 1435. First lieutenants, na^'igation, and watch officers. Sec. 1436. Sea service; staff officers who have been chiefs of bureaus. 1437. Detail of officers for service of War Department. 1438. Officers to act as storekeepers on foreign stations. 1439. Bonds of officers acting as storekeepers. 1440. Appointments in diplomatic or consular servdce. 1441. Officers dismissed, or resigning to escape dismissal. 1442. Furlough of officers. Sec. 1428. [Citizenship of officers.] The officers of vessels of the United States shall in all cases be citizens of the United States. — (28 June, 1864, c. 170, s. 1, V. 13, p. 201.) Acting pay clerks, pay clerks, and chief pay clerks must be citizens of United States. (See act Mar. 3, 1915, 38 Stat., 942.) American citizenship in general. (See Con- stitution, fourteenth amendment, and Art. I, sec. 8, clause 4.) Army officers appointed in time of peace not to be paid compensation unless citizens of the United States. (Act Aug. 29, 1916, 39 Stat., 649.) Dental Corps officers must be citizens of United States. (See act Aug. 29, 1916, 39 Stat., 573, as amended by act July 1, 1918, 40 Stat., 709.) Enlisted men of Navy required to be citizens, with certain exceptions. (See art. R-3524 (1), Na\^ Regs., 1913.) Members of Naval Fh'ing Corps must be citi- zens of the United States. (See act Aug. 29, 1916, 39 Stat., 582.) Members of the Naval Reserve Force must be citizens of United States or of its insular Eossessions (see act Aug. 29, 1916, 39 tat., 587); or must have declared their in- tention to become citizens (act May 22, 1917, 40 Stat., 84.) Natirralization of aliens who have served in Navy or Marine Corps (act May 9, 1918, 40 Stat., 542); or in Naval Reserve Forc« (act May 22, 1917, 40 Stat., 84.) Regulations concerning citizenship. — The Navy Regulations, 1913 (art. R-3301), pro^dde that "no person shall be appointed to any office in the Navy unless he is a citizen of the United States." Alien may legally be appointed to Naval Academy as midshipman, but can not be commissioned unless naturalized. — "There is no statute explicitly making citizenship a condition precedent to eligibility to appoint- ment to the Naval Academy as a midshipman, but inasmuch as officers of the Navy must be citizens, a midsliipman can not be commis- sioned an ensign if he be an alien." (Asst. Sec. of the Na^^ to Hon. J. Van Vechten Olcott, M. C, Nov. 1, 1907; followed, Nov. 26, 1912, file 26252-71; Mar. 22, 1913, file 26252-71:1; Aug. 29, 1913, file 26252-71:2; May 15, 1915, file 5252-68.) Where an alien appointed to the Naval Academy as a midshipman delays taking the necessary steps to be natiuralized until it is too late for him to complete his naturalization by date of graduation, held, that he can not be ' commissioned as an ensign upon graduation, unless naturalized by a special act or joint resolution of Congress, as was done in the case of Eugene Prince, Julv 19, 1912 (37 Stat., 1346; file 26252-71, Nov. 26, 1912). Held, further, that the midshipman in this case could not be lawfully allowed to graduate as an alien, and su]>sequently be commissioned as an ensign, upon being naturalized, with rank from date of graduation, as this would be accomplishing indirectlv what the law does not allow to be done directly. (File 26252-71:1, Mar. 22, 1913; file 26252-71:2, Aug. 29, 1913.) It having been decided by the Navj' De- partment, during a previous administration, that a certain midshipman could not be com- missioned as ensign if he be an alien, the case has thereby become res judicata, and can not be reopened, nor should it be referred to the Attorney General for an opinion as to the cor- rectness of the previous decision. (File 26252-71:2, Aug. 29, 1913.) 54641°— 22- 37 571 Sec. 1428. Ft. 2. REVISED STATUTES. The Navy, [In the case noted above, Congress passed a special act, May 9, 1914 (38 Stat., 1268), which was amended by another special act, May 21, 1914 (38 Stat., 1268), authorizing the issuance of a commission to the alien midshipman upon graduation, with a pro^^so that he should cease to be an officer of the Navy if not naturalized by a specified date. See hearings before Com- mittee on Immigration and Naturalization, House of Representatives, September 11, 1913, file 26252-71:3.] According to the doctrine of stare decisis, whose application in this country is as old aa the Government itself, the department's ruling of November 1, 1907 [above noted|, concenung the citizenship of midshipmen and the ineligibility of aliens for appointment as officers of the Navy, should not now be dis- turbed. "It is almost as important that the law should be settled permanently as that it should be settled correctly. Its rules should be fixed deliberately and adhered to firmly, unless clearly erroneous. Vacillation is a serious e^dl.' • (Gilman v. Philadelphia, 3 Wall., 724.) Accordingly, held that the ques- tion of citizenship should be regarded as settled in accordance with the previous rulings of the department. (File 5252-68, Ma> 15, 1915.) Since the department's nding of November 1, 1907 [above noted], the entire tendency of the Government, both in laws which have since been enacted and in regulations which have since been promulgated, has been to insist upon citizenship precedent to appointment in the naval service in any capacity, either as an officer or as an enlisted man. Accordingly, while the department has decided that the statutes do not specifically prohibit the appoint- ment of an aHen to the Naval Academy as a midshipman, such a prohibition may be em- bodied in the regulations, and this would avoid reciurence of the difficulties which arose out of the case above noted, in which an alien passed through the Naval Academy as a midshipman, but much voluminous correspondence and two separate acts of Congress were required before he coidd be commissioned as an ensign upon graduation prior to naturalization. (File 5252-68, May 15, 1915.) Paragraph 14 of the "Regulations governing the admission of candidates into the U. S. Naval Academy as midshipmen," 1916, pro- vides that "all candidates are reqidred to be citizens of the United States." Officers of the Naval Auxiliary Service. — "Hereafter, in shipping officers and men for service on board United States auxiliary ves- sels, preference shall be given to members of the Naval Reserve Force, and after two years . from the date of approval of this act no person shall be shipped for such service who is not a member of the Naval Reserve Force herein provided." (Act Aug. 29, 1916, 39 Stat., 589.) National Naval Volunteers. — Offices held by officers of the National Naval Volunteers ^Act Aug. 29, 1916, 39 Stat., 593) being offices in the Navy within the meaning of Article Er-3301, Navy Regulations, 1913 [above quoted], before anyone may be appointed to an office in the National Naval Volunteers he must not only have declared his intention to become a citizen but he must in fact be a citizen. (C. M. O. 22-1917,p. 9; file 3973-184, Mar. 17, 1917. As to Naval Militia, see file 3973-129, Dec. 18, 1915. The Inws relating to the National Naval Volunteers and Naval Militia were repealed by act July 1, 1918, 40 Stat., 708; the laws relating to the Naval MiUtia were partially and tem- porarily revived by act of Jime 4, 1920, 40 Stat.. 817.) Status of officer who resumed foreign citizenship after retirement. — Section 1428, Revised Statutes, has for many years been re- garded as requiring that officers of the Navy shall be citizens of the United States. Congress has fully and completely recognized this require- ment and has thereby given legislative approval to the Navy Department's practice, decisions, and regulations on the subject. Accordingly held, that a retired machinist forfeited and abandoned his office in the Na\^ by ex- patriating liimself and resuming his foreign citizenship. Citizenship is not merely a con- dition precedent to appointment in the Navy, but is a qualification necessary in order to con- tinue holding office therein. The act of an officer in vohnitarily removing an essential qualification would seem to render him in- competent longer to hold office, and this is peculiarly applicable in the case of a naval officer who renounces allegiance to his own Government and assimies allegiance to a foreign state. Retired officers under the law are in time of war, under section 1462, Revised Statutes, available for any duty which may be reqidred of them. In view of section 1428, Revised Statutes, it would be unlawful to employ this officer on board any vessel in liis capacity as a machinist, whose paramount duty in time of war woidd be on board fighting ships. (File 26252-105:3, Oct. 19, 1916; see Gay v. U. S., No. 33756, Ct. Cls.) Residence of officers in foreign coun- tries. — It is the opinion of the Judge Advocate General that officers of the Navy, who are required to be citizens of the United States, are also required, in accordance with the customs of the service, considerations of policy, and the desirability of maintaining amicable relations with other nations, to have their legal residence in the United States or one of its possessions. The Navy Regulations (art. 234, par. 2, 1909), providing that "no officer, active or retired, shall change his usual residence with- out permission of the Bureau of Navigation," did not contemplate that permission would be granted for an officer to reside outside of the United States. This is made plain by other pro\'isions of the Regulations (art. 1526, 1909) that "permission to leave the United States will be granted only by the Secretary of the Navy.'' Serious complications might grow out of the situation which would exist were an officer of the Navy permitted to have his legal residence in a foreign country. This is indi- cated by decisions of the State Department with reference to the citizenship, allegiance, right to protection in person or property, status in event of war, etc., of persons who, while citizens of the United States, voluntarily mthdraw their persons and property from the country and become and remain domiciled in foreign countries. (File 17606-49, Dec. 17, 1912.) 572 The Navy. Pt. 2. REVISED STATUTES. Sec. 1430. ment; and that the case in this respect is to be distinguished from one in which an officer had deliberately concealed disabilities rendering him ineligible for appointment. Further held, that the qualifications of the officer are presumed to have been ascertained and found satisfactory pre^-ious to his appointment to the office of chief pay clerk, and that, in the absence pf fraud, his qualifications can not, under certain conditions, thereafter be inquired into, al- though it should be claimed that he did not possess the statutory qualifications for appoint- ment. (File 5460-82, June 3, 1916, citing 28 Op. Atty. Gen., 180, as to conclusiveness of appointment as establishing qualifications for the office. But see 31 Op. Atty. Gen., 419, noted under Constitution, Art. II, sec. 2, clause 1, subheading "Constructive pardon.") Appointment as ofl&cer after forfeiting citizenship by desertion. — An appointment as a commissioned officer in the Navy, to wit, chief pay clerk, was issued by the President, by and with the advice and consent of the Senate, to a convicted deserter from the Army, who had forfeited his right of citizenship and been rendered forever incapable of holding any office of trust or profit under the United States. (Sees. 1996 and 1998, R. S.) Wlaen said com- mission was issued, it was of record in the Navy Department that the othcer was a convicted deserter from the Army. Ildd, that, while not free from doubt, by a liberal interpretation, the President's action in commissioning this offi- cer under the circumstances stated may be re- garded as a constructive pardon so as to remove the disabilities imposed by law and which would otherwise have prevented his appoint- Sec. 1429. [Report to be made of men entitled to honorable discharge.] It shall be the duty of every commanding officer of a vessel, on retm-ning from a cruise, and immediately on his arrival in port, to forward to the Secretary of the Navy a hst of the names of such of the crew who enhsted for three yeai-s as, in his opinion, on being discharged, are entitled to an ''honorable discharge" as a testimonial of fidehty and obedience; and he shall grant the same to the persons so designated. — (2 Mar., 1855, c. 136, s. 1, v. 10, p. 627.) See section 1426, Revised Statutes, and note thereto, concerning honorable discharges in general . Sec. 1430. [Sale of wages to be discouraged.] Every commanding officer of a vessel is required to discourage his crow from selhng any part of their prize-money, bounty-money, or wages, and never to attest any power of attorney for the transfer thereof until he is satisfied that the same is not granted in con- sideration of money given for the purchase of prize-money, bounty-money, or wages. [See § 4643.]— (30 June, 1864, c. 174, s. 12, v. 13, p. 310.) Allotments of pay by officers of the Navy are au- thorized by act of June 10, 1896 (29 Stat., 361). Allotments of pay by enlisted men in the mili- tary or naval forces of the United States are authorized by act of October 6, 1917, Art. II (40 Stat., 402, as amended). Allotments of pay by enlisted men of the Army are permitted by act of March 2, 1899, sec. tion 16 (30 Stat., 981), and act of March 2, 1901 (31 Stat., 896). Assignments of prize or bounty money were regulated by section 4643, Revised Statutes. Assignments of wages by enlisted men of the Navy are void unless authorized by com- manding and pay officers. (Sec. 1576, R. S.; but see Act Oct. 6, 1917, 40 Stat., 403, sec. 202, as to allotments.) Assignments of claims against United States are prohibited, with certain exceptions, by section 3477, Revised Statutes. Assignments of wages by merchant seamen are prohibited, with certain exceptions, by sec- tion 4536, Revised Statutes. Assignments of pay by employees of the Depart- ment of Asriculture are permitted by act of March 4^1909 (35 Stat., 1057). Assignments of pay by employees of the Coast and Geodetic Survey are permitted by act of March 4, 1907 (34 Stat., 1322). Assignments of pay by employees of the Geo- logical Survey are permitted by act of June 30, 1906 (34 Stat., 727). Assignments of pay by employees of the Recla- mation Service are permitted by act of May 27, 1908 (35 Stat.;, 350). Assignments of pay by commissioned officers of the Armv are permitted by act of March 2, 1907 (34 Stat., 1159), and act of March 2, 1913 (37 Stat., 710). Assignments of pay by noncommissioned offi- cers and privates of the Army are prohibited by section 1291, Revised Statutes. Assignments of pensions are prohibited by sec- tion 4745, Revised Statutes, as amended by act of February 28, 1883, section 2 (22 Stat., 432). Bounty monej and prize money were abolished by Navy personnel act of March 3, 1899, section 13 (30 Stat., 1006). Deposit of savings by enlisted men of the Navy is authorized by act of February 9, 1889 (25, Stat., 657); and by enlisted men of Marino Corps by act of June 29, 1906 (.34 Stat., 579). Attachment of wages by creditors. — ' The important question is, whether the money in 573 Sec. 1432. Pt.2. RE VISED S TA T UTES . The Navy. the hands of the purser, thonsh due to the sea- men for wages, was attachable. A purser, it would seem, can not in this respect, be distin- giiished from any other disbursing agent of the Government. If the creditors of these seamen may, by process of attachment, divert the public money from its legitimate and appro- priate object, the same thing may be done as regards the pay of our officers and enlisted men of the Army and of the Navy; and also in every other case where the public funds may be placed in the hands of an agent for disbursement. To state such a principle is to refute it. No government can sanction it. At all times it would be found embarrassing and under some circumstances it might be fatal to the public service. The funds of the Government are specifically appropriated to certain national objects, and if such appropriations might be diverted and defeated by State process or otherwise, the functions of the Government might be suspended. So long as money remains in the hands of a disbursing officer, it is as much money of the United States as if it had not been drawn from the Treasiiry. Until paid over by the agent of the Government to the person entitled to it, the fund can not in any legal sense be considered a part of his effects. The purser is not the debtor of the seaman." (Buchanan v. Alexander, 4 How., 19.) Sec. 1431. [Leave and liberty to be granted by commanding officer.] It shall be the duty of commanding oflftcers of vessels, in granting temporary leave of absence and Hberty on shore, to exercise carefully a discrimination in favor of the faithful and obedient.— (2 Mar., 1855, c. 136, s. 3, v. 10, p. 627.) Deprivation of liberty on shore may be in- flicted by commanding officer upon enlisted men as a punishment, by authority of sec- tion 1624, Revised Statutes, article 24. Deprivation of liberty on shore on foreign station maybe inflicted upon enlisted men by sentence of summary court-martial, im- der section 1624, Revised Statutes, article 30, or by sentence of deck court, imder act of February 16, 1909, section 2 (35 Stat., 621). Furlough of officers by Secretary of the Navy. (Sec. 1442, R. S.) Fiulough without pay to enlisted men, subject to recall in time of war or national emer- gency. (Act Aug. 29, 1916, 39 Stat., 580.) No pay allowed officers and enlisted men. Navy or Marine Corps, absent on account of in- jury, sickness or disease resulting from their own misconduct. (Act Aug. 29, 1916, 39 Stat., 580, as amended bv act July 1, 1918, 40 Stat., 717.) Liberty granted according to conduct. — "The granting of liberty on shore and other privileges will depend upon the conduct class, and the commander in chief shall establish rules defining the privileges or restrictions for each class, which shall be uniform throughout his command." (Art. R-3668 (8), Navy Regs., 1913.) "First-class conduct men shall be allowed every indulgence compatible with the demands of duty and with the exigencies of the service; and in respect to privileges a clear distinction should be made between them and men in the second-conduct class. Special privileges shall be allowed to the special first class when it is possible to extend them to a small number only." (Art. R-3668 (9), Navy Regs., 1913.) Only commanding oflS.cer to grant leave or liberty. — "\Mien the sanitary or other con- ditions of the port do not render it inadvisable, and when authorized by the senior officer present, the commanding officer shall grant liberty or leave of absence to the enlisted men, but such liberty or leave of absence shall not be granted by other than the commanding officer." (Art. R-3710 (1), Navy Regs., 1913.) Leave of absence is a favor. — Neither the Secretary of War nor any officer of the Govern- ment can force a leave of absence upon an officer or soldier. A leave of absence is a favor extended. (Hunt v. U. S., 38 Ct. Cls., 709, 710; 11 Comp. Dec, 570; 16 Comp. Dec, 613; U. S. V. Williamson, 23 Wall., 415; see sec. 1442, R. S., and note to sec 416, R. S., under "Suspension of employees." Special duty pay not allowed, men on leave. — Enlisted men of the Navy, while on leave or liberty on shore, are not "serving" on board of submarines within the meaning of Navy Department General Order No. 20, of January 1, 1901, allowing additional pay to enlisted men "while sei^ving on board of sub- marine vessels of the Navy." While upon au- thorized leave they are not in the performance of such service or duty of any kind. (19 Comp. Dec, 754, citing Colhoun v. U. S., 38 Ct. Cls., 198, 202.) During the present war enlisted men of the Navy and Marine Corps detailed as gun pointers or gun captains shall be entitled to the additional pay provided for such detail "while temporarily absent by proper authority from the place where ordinarily required to perform duty under such detail," (Act Mar. 29, 1918, 40 Stat., 500.) Persons on leave or liberty; status; "line of duty." — See note to section 1451, Revised Statutes. Sec. 1432. [Commanding officers not required to act as pay officers.] No commanding officer of any vessel of the Navy shall bo required to perform the duties of a paymaster, passed assistant paymaster, or assistant paymaster. — (17 July, 1861, c. 4, s. 4, v. 12, p. 258.) 574 The Navy. Pt.2. REVISED STATUTES. Sec. 1433. As to acting appointment of pay officers, see section 1381, Revised Statutes, and note thereto. As to appointment of special disbursing agents, see section 3614, Revised Statutes. The -words "paymaster, passed assistant paymaster, or assistant paymaster," are interpreted in practice as meaning " supply officer." (See art. 848, Navy Regs., 1920. As to grades in Supply Corps, see note to sec. 1376, R. S.) Sec. 1433. [Commanding officers may exercise consular powers.] The com- inanding officer of any fleet, squadron, or vessel acting singly, wlien upon the high seas or in any foreign port where there is no resident consul of the United States, shall be authorized to exercise all the powers of a consul in relation to mariners of the United States. — (20 Feb., 1845, c. 17, s. 2, v. 5, p. 725. j Any naval officer accepting appointment in diplomatic or consular service, considered as having resigned his office. (See sec. 1440, R. S.) Controversies between merchant seamen and officers of any vessel of the United States, arising at sea or in foreign ports, shall be under exclusive jurisdiction of consular officers of the United States, whenever so stipulated by treaty or convention. (Sec. 4079, R. S.) Destitute seamen of the United States to be returned by consuls to some port in the United States. (Sec. 4577, R. S.) Marriages may be performed by any consular officer of the United States in a foreign country, between persons who would ])e authorized to marry if residing in the Dis- trict of Columbia. (Sec. 4082, R. S.) Merchant seamen of the United States on for- eign voyages may complain to any com- manding officer of the Navy concerning unfit water or provisions furnished them, and such commanding officer shall make an investigation, and if complaint is well founded, shall make a report to the master of the ship, and to the United States judge for the district embracing the port to which such ship is bound. (Sec. 4565, R. S.) Similar action to be taken in cases of mer- chant seamen bound from Atlantic to Pacific port of United States or vice versa. (Sec. 4565, R. S.) Laws relating to seamen on foreign voyages shall apply to seamen on vessels going from the United States and its possessions to Philippine Islands. (Act July 1, 1902, sec. 84, 32 Stat. 711.) Notarial acts, which any notary public is re- qiured or authorized by law to do within the United States, shall be performed by any consular officer when application is made to him therefor. (Act Apr. 5, 1906, sec. 7, 34 Stat., 101; sec. 1750, R. S.) No such act^shall be valid within the jurisdic- tion of the Government of the United States, unless necessary stamps are affixed and canceled. (Act Apr. 5, 190G, sec. 10, 34 Stat., 102.) Paymasters of the Navy on foreign stations shall render, when practicable, with their ac- counts, official certiiicate from resident consul, vouching that all purchases and expenditures were made at the ruhng mar- ket prices. (Sec. 3723, R. S.) Proceedings in regard to effects of deceased seamen are prescribed by sections 4539- 4541, Revised Statutes, and act of March 3, 1897, section 4 (29 Stat., 689). With reference to deceased persons in the naval service, provisions for disposition of their effects are made by act of March 29, 1918 (40 Stat., 499). Pro\isions relating to consular officers are con- tained in Revised Statutes, sections 1689- 1752. Pro\isions relating to merchant seamen are contained in Revised Statutes, sections 4501 to 4612. Testamentary disposition by citizens of United States dying abroad shall be strictly ob- served by consular officers, or the latter shall officially aid any person appointed by the deceased to manage his property. (Sec. 1711, R. S.) Consuls shall take pos- session of personal estate of citizens dying abroad and leaving no legal representative, shall inventory same, collect debts due, sell perishable articles, etc., at auction, and transmit balance of estate to the Treasury of the United States. (Sec. 1709, R. S.) Marriages on board naval vessels. — ' ' The commanding officer of a ship shall not perform a marriage ceremony on board; nor shall he permit one to be performed when the ship is outside of the territory of the United States, except in accordance with the local laws and laws of the State, Territory, or district in which the parties are domiciled, and in pres- ence of a diplomatic or consular official of the United States, who has consented to issue the certificates and make the returns required by the consular regulations." (Art. 847 Navy Regs., 1920.) Destitute American seamen. — The com- manding officer of a naval vessel, by authority of the senior officer present, may, when on a foreign station, receive on board distressed seamen of the United States for passage to the United States, provided they bind themselves to be amenable in all respects to the laws and regulations for the government of the Navy. (Art. 905, Navy Regs., 1920.) Merchant vessels needing supplies may be furnished with such as can be spared, for which charge shall be made at the average price of the sui^plies; or, in case of extreme distress, gratuitous assistance may be furnished. (Art. 1-4554, Naval Instructions, 1913.) The senior officer present may require the medical officers of his command to render professional aid to persons not in the naval service when necessary and demanded by the 575 Sec. 1434. PL 2. REVISED STATUTES. The Navy. laws of humanity. (Art. 685, Navv Rega., 1920.) "In the absence of a diplomatic or con- sular officer of the United States at a for- QV^w port the commander in chief, as senior olhcer present, has authority (a) To exercise the powers of a consul in relation to mariners of the United States (sec. 1433, R. S.); (6).To communicate or remonstrate with foreign civil authorities as may be necessary; (c) To urge upon citizens of the United States the neces- sity of abstaining from participation in poUtical controversies or violations of the laws of neu- traUty." (Art. 720, Navy Regs., 1920.) Juiisdiction of consular and military of- ficers. — A member of the crew of an Army transport was held on board as a prisoner upon the charge of having committed an offense against a Japanese subject. The Japanese au- thorities came on board to arrest him, but the Army officer in command refused to surrender the accused. The United States consul re- quested the commanding officer to deliver the man to the Japanese authorities, but this was refused. The United States consul then asked the commanding officer if he would obey the consuTs order to tm-n over the man to the Japa- nese authorities and was answered in the nega- tive. Next day the Japanese procurator with a party came to take the prisoner, but was told he would only be gi^-en up by exercise of superior force. The United States consul then told the commanding officer that he would not be al- lowed to sail until the matter was settled be- tween the United States and the Japanese Gov- ernment, but on receiving sailing orders, the Thomas sailed, after the commanding officer had assured the Japanese authorities that the man would be prosecuted The man, who was a deserter from the Navy, was later turned over to the naval authorities for trial. (File 5542-01, Aug. 20, 1900. As to jurisdiction of diplomatic and naval authorities, see file 7760-2, Aug. 13, 1907; 4 Moore's Dig. 616, 617.) Duty to advance commercial interests. — " So far as lies within their power, commanders in chief, di\dsion commanders, and command- ing officers of ships shall protect all merchant vessels of the United States in lawful occupa- tions, and advance the commercial interests of this country, always acting in accordance with international law and treaty obligations." (Art. 726, Navy Regs., 1920.) " If the Navy Department, in order to assist in the extension of United States trade and commerce and to carry out the general pur- poses indicated in the application by the Department of State, thinks fit to send an officer of the Navy, skilled in matters of ord- nance, to a South American capital, it is en- tirely competent for the Secretary of the Navy to direct him to be sent, not as the represent- ative of a private person or company, nor in its employment, but at the expense of the Government as a representative of the Navy Department and for the purpose of assisting all Americans whose interests are such as, in the opinion of the Secretary, to justify that proceeding." (29 Op. Atty. Gen., 45.) Merchant seamen as prisoners on naval vessels. — "The commanding officer of a ship shall not, while on a foreign station, receive on board as prisoners seamen from merchant ves- sels, unless the ^sitnesses necessary to substan- tiate the charges against them are also received, or adequate means adopted to insure the pres- ence of such witnesses on the arrival of the prisoners at the place where they are to be handed over to the civil authorities." (Art. 903, Navj^ Regs., 1920.) Sec. 1434. [Commanding officers of squadrons to have rank of "flag officers."] The Presideut may select any officer not below the grade of com- mander on the active list of the Navy, and assign him to the command of a squadron, with the rank and title of "flag-officer;" and any officer so assigned shall have the same authority and receive the same obedience from the com- manders of ships in his squadron, holding commissions of an older date than his, that he would be entitled to receive if his commission were the oldest. — (21 Dec, 1861, c. 1, s. 4, v. 12, p. 329.) Assignment of retired officers to command squadrons. (See sec. 1464, R. S.) Pay of officers of the Navy shall be based on their rank and length of service. (Act Aug. 29, 1916, 39 Stat."; 581.) Rank of officers not to be changed, except in accordance with the provi.sions of exist- ing law, and by and mth the ad\'ice and consent of the Senate. (Sec. 1506, R. S., as amended by act June 17, 1878, 20 Stat., 144.) _ The President may formulate appropriate rules governing assignments to command of vessels and squadrons. (Act Mar. 3, 1901, 31 Stat., 1133.) The President may designate six officers of the Navy for command of fleets or subdivisions thereof, not more than three to have the rank of admiral and the others the rank of vice admiral ; such selections in time of war to be made from the grades of rear admiral or captain on the active list, and in time of peace from among rear admirals on the active list; but nothing in this act shall be construed to amend or repeal sections 1434, 1463, and 1464, Revised Statutes. (Act May 22, 1917, sec. 18, 40 Stat., 89.) Flag oflB.cers. — See note to section 1407, Revised Statutes, as to who are flag officers. By act of January 16, 1857, section 5 (11 Stat., 154), it was provided "that captains in command of squadrons shall be denominated flag officers." This provision is in the right direction, toward the delivery of the mind of the United States from the superstitious influ- ences which have so long resisted the ascrip- 576 The Navy. PL 2. REVISED STATUTES. Sec. 1435. tion of proper names of command to superior officers in the Navy, while admitting such in the Army. In the latter it never seems to have been supposed that paramount considera- tions of public policy require us to stop at the rank of "captain" and to apply that appella- tion indiscriminately to all field and general officers. (8 Op. Atty. Gen., 337.) Precedence of officers appointed to act in any grade. — See Article R-1048, Navy Reg- ulations, 1913, noted under section 1410, Re- vised Statutes. Appointments by President without confirmation of Senate. — AMiere the statute provides for the appointment of an officer by the President, without requiring the consent of the Senate, such consent is unnecessary, and the President may make such appoint- ment without submitting the same to the Senate for confirmation. In the latter case the commission may be signed by the Secre- tary of the Navy as the act of the President. (22 Op. Atty. Gen., 82; see also note to sec. 1369, R. S. As to letter signed by Secretary of War, by direction of the President, consti- tuting a commission, see O'Shea v. U. S., 28 Ct. Cls., 392, noted imder Constitution, Art. II, sec. 2, clause 3.) Form of assignment to duty as flag of- ficer under tills section. — On September 30, 1889, a letter was addressed by the Secretary of the Navy to "Acting Rear Admiral" John G. Walker, U. S. N., as follows: ' 'You are hereby appointed an acting rear admiral in the Navy of the United States, such appointment to hold good while in command of the Squadron of Evolution. ' 'You are authorized to hoist the flag and wear the imiform of a rear admii'al, and to affix the title of rear admiral to your official signa- ture." The following letter was addressed by the Secretary of the Navy to ' 'Rear Admii-al" Wil- liam T. Sampson April 21, 1898 (File 98039, Bu. Nav.): "Under the authority of section 1434 of the Revised Statutes of the United States you are assigned to cormnand the United States Naval Force on the North Atlantic Station, -vnth the rank of rear admiral. "You will hoist the flag of a rear admiral, will wear the uniform, and will affix that title to your official signature." On May 28, 1908, Oapt. Seaton Schroeder was given an assignment by the Secretary of the Navy, as follows: "By direction of the Presi- dent, you are, under authority of section 1434 of the Revised Statutes, hereby assigned to the command of the Fourth Division of the Second Squadron of the United States Atlantic Fleet with the rank and title of rear admiral. You will hoist the flag of a rear admiral, wear the uni- forms of that grade, and afiix that title to your official signature." (Seel7Comp.Dec., 54.) Officer does not become a rear admiral by operation of tliis section. — The assign- ment of a captain of the Navy to duty as rear admiral by authority of section 1434, Revised Statutes, does not make such officer a rear admiral within- the meaning of the law (act May 13, 1908, 35 Stat., 128) providing pay for an aid to a rear admiral. (17 Comp. Dec, 54.) The chief purpose of the law, shown by its terms, was to give to the officer so assigned command over, and to require obedience from, officers of a higher rank or rate who might be serving in the squadron. It is noticed that Captain Schroeder was, by the letter above- quoted, assigned to the command of a division of a squadron, and not of a squadron, as pro- vided m section 1434, with the rank and title of "rear-admiral," while section 1434 pro\ddes for the assignment of certain officers to com- mand squadrons with the rank and title of "flag-officer." This assignment did not make Captain Schroeder a rear admiral within the meaning of the law allowing additional pay to officers serving as aids to rear admirals. (17 Comp. Dec, 54.) There is no law which authorizes the pay- ment to an officer of the pay of rear admiral while he was accorded that rank and exercised the duties of that grade by dnection of the Sec- retary of the Navy, his commission being only that of captain or of commodore. (Comp. Dec, Dec. 16, 1899, Appeal No. 3215, case of Rear Admiral William T. Sampson. But see act of Aug. 29, 1916, 39 Stat., 581, providing that the pay of officers of the Navy shall be based on their rank and length of service.) Sec. 1435. [First lieutenants, navigation, and watch officers.] Lieutenant commanders may be assigned to duty as first lieutenants of naval stations, as navigation and watch officers on board of vessels of war, and as first lieutenants of vessels not commanded by lieutenant-commanders. — (16 July, 1862, c. 183, s. 3, V. 12, p. 584. 25 July, 1866, c. 231, s. 5, v. 14, p. 223.) Aid or executive of commanding officer of a vessel of war or naval station, may be de- tailed by the Secretary of the Navy. (Sec. 1469, R. S.) Ensigns may be assigned to duty as watch officers. (See sec 1490, R. S.) Lieutenant commanders eligible for appoint- ment as Chief of Bureau of Engineering (sec. 424, R. S., as amended by acts June 7, 1900, 31 Stat., 702, and June 4, 1920, 41 Stat., 828); and to assist the Chief of Naval Operations (act Aug. 29, 1916, 39 Stat., 558). President shall formulate appropriate rules gov- erning assignments to command of vessels and squadrons. (Act Mar. 3, 1901, 31 Stat., 1133,_ superseding sec 1529, R. S., which provided, inter alia, that vessels of the foiu-th rate shall, as nearly as practica- ble, be commanded by lieutenant com- manders.) Shore duty, officers not to be employed on, except in cases especially provided by law, unless the Secretary of the Navy shall de- termine that employment on such duty is required by the public interests and shall so 677 Sec. 1437. PL 2. REVISED STATUTES. The Navy. Btate in the order of employment. (Act Mar. 3, 1883, see. 2, 22 Stat.. 481, amended by act July 19, 1892, 27 Stat., 245.) Vessels in actual service shall be officered and manned as the President may direct. (Sec. 153.5, R. S.) First lieutenants. — "On board battleships and armored cruisers, an officer of the rank of lieutenant commander or lieutenant shall bo assij^ned to duty as first lieutenant, ti practi- cable, the first lieutenant shall be the line officer on board next in rank to the executive officer, but when this is impracticable he may be either senior or junior to the navigating officer, gimnery officer, and engineer officer, one or all, as the exigencies of the service may demand; but he shall be senior to all the watch and di^'ision officers. Commanding officers of battleships and armored cruisers may detail an Sec. 1436. [Sea service; staff officers who have been chiefs of bureaus.] Any staff officer of the Navy who has performed the duty of a chief of a bureau of the Navy Department for a full term shall thereafter be exempt from sea duty, except in time of war. — (3 Mar,, 1871, c. 117, s. 10, v. 16, p. 537.) officer to act as first lieutenant when no regular first lieutenant has been ordered to the ship." (Art. R-2301. Navy Regs.. 1913.) "The navigating officer is the officer de- tailed by the department to perform the navi- gation duties and is the h.^ad of the navigation department of the ship. The navigating officer shall be senior to all watch and division officers." (Art. R-2401. Na\-y Regs., 1913.) It is the President's right, as com- mander in chief, to decide according to his own jiidgment what officer shall perform any particular duty. Congress could not, if it would, take away n*om the President or in any- wise diminish the authority conferred upon him by the Constitution. (9 Op. Atty. Gen., 462, noted imder Constitution, Art. II, sec. 2, clause 1.) mine that employment in such duty is re- quired by the public interests, and shall so state in the order of emplojTnent. (Act Mar. 3, 1883, sec. 2, 22 Stat., 481, amended by act July 19, 1892, 27 Stat., 245.) As to appointment, etc., of chiefs of bureaus, see sections 421^26, Revised Statutes, and notes thereto. Shore duty, officers not to be employed on, except in cases especially provided by law, unless the Secretary of the Navy shall deter- Sec. 1437. [Detail of officers for service of War Department.] The Pres- ident may detail, temporarily, thi'ee competent naval officers for the service of the War Department in the inspection of transport vessels, and for such other services as may be designated by the Secretary of War. — (12 Feb., 1862, C.21, V. 12, p. 338.) Detail of officers for service with the Coast and Geodetic Survey, under the Department of Commerce, is authorized by sections 4684 and 4687, Revised Statutes, and amend- ments thereto. Detail of officers to educational institutions is authorized by section 1225, Revised Stat- utes, as amended, and other laws noted thereunder. Detail of officers and enlisted men, Navy and Marine Corps, to assist Republic of Haiti. (Act June 12, 1916, 39 Stat., 223.) Detail of two officers, Na\'i', to assist Republic of Brazil. (Res. Oct*. 13, 1914, 38 Stat., 780.) Detail of officers to assist South American Re- publics. (Act June 5, 1920, 41 Stat., 1056.) Detail of officers and enlisted men of the Navy and Marine Corps, to assist the Dominican Republic. (Act Feb. 11, 1918, 40 Stat., 437.) Detail of medical officers. Navy, for duty with American National Red Cross (act Aug. 29, 1916, 39 Stat., 581); and for duty in connection with Bureau of War Risk Insur- ance (act Oct. 6, 1917, 40 Stat., 398). Detail of officers to act in lieu of ci\alian light- house inspectors, under the Bureau of Light- houses, Department of Commerce, was au- thorized for a period not exceeding three years by act of June 17, 1910, section 11 (36 Stat., 539), wliich act also repealed sections 4653 and 4671, Revised Statutes, providing for the detail of officers as members of the Lighthouse Board and as lighthouse in- spectors. Detail of officers to ocean mail vessels is author- ized by act of March 3, 1891 (26 Stat., 832). Detail of officers for such duties as the United States &hipping Board may deem necessary in connection with its business is authorized by act of September 7, 1916, section 4 (39 Stat., 729). Heads of departments are required to render all practicable aid to the Bureau of Fisheries, under the Department of Commerce. (Sec. 4397, R.S.) President is authorized to utilize the service of any department and any officer or agent of the United States in the execution of the selective-draft law. (Act May 18, 1917, sec. 6, 40 Stat., 80.) When the Na\y Department performs any service for the War Department, the funds of the War Department may be placed subject to requisition of the Navy Depart- ment for direct expenditure by the latter. (Act Mar. 4, 1915, 38 Stat., 1084.) Department of Justice. — The detail of officers for special duty under the Department of Justice, is authorized in practice. (See, for example, Navy Register, Jan. 1, 1917, p. 335.) 678 The Navy. PL 2. REVISED STATUTES. Sec. 1440. Duty of Navy to cooperate with -Axmy. — It is the duty of the Navy to cooperate with the Army, both being branches of the military service of the United States, and this duty of cooperation authorizes the detail of a naval constructor for duty under the War Depart- ment, without additional compensation. (See Stocker v. U. S., 39 Ct. Cls., 300, noted under sec. 1404, R. S.; see also 7 Comp. Dec, 289.) Appropriation chargeable with expenses of ofla.cer detailed. — It is the general rule that where an officer or employee of one executive department performs ser\dces for another de- partment imder proper orders, only such ex- penses as are extra and incurred solely l)y reason of such duty are to be borne by the department for which the duty is performed. However, where the officer or employee performing such duty is employed imder a lump-sum appropria- tion and his place in his own departmeutisfilled by an additional i^erson during the period of such duty, all expenses incident to the detached duty, including the salary of such officer or em- ployee and his subsistence where regularly f lu-- nished under his contract of employment, are to be borne by the department for which the duty is performed. (22 Comp. Dec, 145.) Where a hghthouse tender, with officers and crew, is used in mine-planting practice by the War Department, only extra expenses incident to such use, such as the cost of additional fuel and oil, are to be charged to the War Depart- ment, the pay of the officers and crew and their subsistence, or commutation therefor, being chargeable to the Department of Commerce, under which they are regularly employed. (22 Comp. Dec, 145.) W^le the decisions have referred to transac- tions of the above character as details of em- ployees, they should be viewed as the perform- ance of ser\dce by one department, through its existing permanent organization, for another department. The custom is that such ser\dce, when small, shall be given as a matter of cour- tesy, and when of some substantial value, reim- biu*8ement of full cost shall be made, in order that the department securing the service shall not secure more work than its appropriation authorizes. (22 Comp. Dec, 145.) Where a vessel of the Naval Auxiliary Serv- ice, with officers and crew, is withdrawn from its regidar duty under the Navy Department and is used for a certain period in transporting supplies for the Department of Commerce, the appropriation for that department available generally for the transportation of such suppUes is chargeable with the total expenses incurred by the Navy Department in the maintenance and operation of the vessel during such period, in- cluding the pay and subsistence of the officers and crew. (23 Comp. Dec, 119, distinguishing 22 Comp. Dec, 145.) There was no detail whatever in the case noted in the preceding paragraph. 1 1 was more in the natm-e of an agreement to perform a serv- ice. The officers and crew in the Naval Aux- iUary Service are in the status of ci\dhan crews. If the officers are not required for service on vessels, they are fiu-loughed, and the crew being shipped in the same manner as for service on merchant vessels, are not shipped imless needed to man a vessel. They have no perma- nent teniu-e of office, and if a vessel of the Naval Auxihary Ser\'ice was withdrawn from active ser\dce for a period of 37 days, there would be no expense for pay and sul)sistence of officers and crew. This vessel was withdra\vn from her regular duties to perform a service for and at the request of another department of the Gov- ernment, and if the Department of Commerce had not seciu-ed the ser\ice of this vessel, it would have been necessary to secure a mer- chant vessel. This was a ser\ice of substantial value, for which reimbursement of full cost should be made in order that the Department of Commerce shall not secure more work than its appropriation authorizes. (23 Comp. Dec, 119.) As to right of medical officer of the Navy to compensation from appropriations under con- trol of the Department of Justice for professional 8er\ices rendered l)y him to United States pris- oners in a United States jail, see note to section 1368, Revised Statutes, under " Medical at- tendance to persons not in the Navy." Sec. 1438. [Officers to act as storekeepers on foreign stations.] The Sec- retary of the Navy shall order a suitable commissioned or warrant officer of the Navy, except in the case provided in section fourteen hundred and fourteen to take charge of the naval stores for foreign squadrons at each of the foreign stations where such stores may be deposited, and w^here a store-keeper may be necessary. — (17 June, 1844, c. 107, s. 1, v. 5, p. 700; 3 Mar., 1847, c. 48, s. 3, V. 9, p. 172.) See note to section 1414, Revised Statutes. Sec. 1439. [Bonds of officers acting as storekeepers.] Every officer so acting as store-keeper on a foreign station shall be required to give a bond, in such amount as may be fixed by the Secretary of the Navy, for the faithful perform- ance of his duty. — (17 June, 1844, c. 107, s. 1, v. 5, pp. 700, 701.) On general subject of bonds, see note to section 1383, Revised Statutes. Sec. 1440. [Appointments in diplomatic or consular service.] If any officer of the Navy accepts or holds an appointment in the diplomatic or consular 579 Pec. 1440. Pt.S. REVISED STATUTES. The Navy. service of the Government, he shall be considered as having resigned his place in the Navy, and it shall be filled as a vacancy. — (30 Mar., 1868, c. 38, s. 2, v. 15, p. oS.) Army officers are prohibited from holding offices in diplomatic or consular service by section 1223, Revised Statutes. By actof March3, 1875, section 2 (18 Stat., 512), it was proxadod that certain retired officers of the Army should l>e continued on the re- tired list, not\A'ithstandiiig the provisions of section 2 of act of March 30, 1868, upon which sections 1223 and 1440, Revised Statutes, are based; and by act of March 3, 1891 (26 Stat., 872), the accounting officers of the Treasury were directed to allow pay to certain retired officers of the Army included in act of March 3, 1875, "notwithstanding such officer accepted and held a diplomatic or consular office." Consular powers may be exercised by Navy officers in certain cases. (See sec. 1433, R. S.) Legality of accepting oflB.ce in diplo- matic or consular service must be deter- mined by oflELcer upon his own responsi- bility. — '"It may be, and doubtless is, a subject of reasonable interest, and perhaps of great anxiety, to officers of the United States Army on the retired List to ascertain [in view of the act of July 31, 1894, section2, 28 Stat., 205] 'if an officer on the retired list of the Army can accept a diplomatic or consular appointment and still hold his position on the retired list with rank and pay.' But, manifestly, the solution of that question by any retired officer of the Army, and the course of conduct which he may adopt in pursuance of such solution, is a matter of his private concern only and not a subject wdth which the United States can be concerned until some action has been taken by such officer. * * * If Lieut. Clay, or any other retired officer, should l;e called upon to determine such question in his own case, the obvious course for him to piu-sue is that which is open to every person inclined to pursue a coiu"se as to the legal consequences of which he is in ignorance or doubt. He should seek the ad\'ice of private coimsel, learned in the law, and obtain their opinion, for which, if given without due care, such counsel can be held to personal account- ability. The whole matter, as it seems to me, is one strictly of private concern and in no sense of pubUc interest." (21 Op. Atty. Gen., 510; file 9736-15, Mar. 28, 1910; file 9736-18, June 25, 1910. See also 21 Op. Atty. Gen., 506; compare 18 Op. Atty. Gen.; 11; 29 Op. Atty. Gen., 397; 29 Op. Atty. Gen., 503. For other cases, see note to sec. 356, R. S., imder "III. Must Arise in Administration of Depart- ment.") Retired oflicers included in prohibition of this section. — Section 1223, Revised Statutes [which is similar to section 1440] applies to all officers of the Army, whether upon the active or retired Hst, and must be deemed to enact that any officer upon either list, accepting an appointment in the diplo- matic or consular service, is to be treated as having resigned his place in the Army. To section 1223 there is an exception made by the act of March 3, 1875, which provides that a certain class of officers therein described, who are "borne upon the retired list, shall be con- tinued thereon notwithstanding the provisions of section two, chapter thirty-eight, act of March thirtieth, eighteen hundred and sixty- eight," which is embodied in section 1223, Revised Statutes. Of course, the officers therein described, even if accepting an ap- pointment in the consular or diplomatic serv- ice, would not vacate their commissions. (15 Op. Atty. Gen., 306.) The act of March 30, 1878, appUed to officers on the retired as well as on the active list, and it made the acceptance of the diplomatic vacate the military office, eo instanti, the vacancy thus created necessarily continuing imtil filled in the usual way. (19 Op. Atty. Gen., 610.) A retired officer is not precluded from holding a ci\'il office under the United States Govern- ment except as prohioited bv statute. (15 Op. Atty. Gen., 306.) Captain Badeau's Case. — In 1870, Captain Adam Badeau, U. S. Army, retired, was ap- pointed to and accepted the office of consul gen- eral at London. After his appointment, his name continued to be borne on the Army Regis- ter as a retired officer, but he was not paid as such. He was not of the class of retired officers described in the first proviso of section 2 of the act of March 3, 1875, chapter 178: Held, upon consideration of the provisions of sections 1094 and 1223, Re\ised Statutes [the former pro- viding that the Army shall consist, inter alia, of ■' the officers of the Army on the retired list"], the latter embodying so much of section 2, act of March 30, 1868, chai)ter 38, as related to officers of the Army, advised, that Badeau haa ceased to be a retired officer of the Array by effect of the statutory pro^dsion embodied in section 1223, and that his name can not legally be continued on the retired list. (15 Op. Atty. Gen., 407; see also 2 Comp. Dec, 7, citing decision of Second Comptroller Upton, June 18, 1883, and decision of Second Comp- troller Gilkeson, Apr. 15, 1890; and see 1? Comp. Dec, 441.) The cases of General Sickles and Captain Badeau are alike in all material respects. It appears that each of these officers, after being placed on the retired list, accepted in 1869 an appointment in the diplomatic service. General Sickles remained in that service until April, 1874. Captain Badeau remained therein only a few months, but subsequently, in 1870, entered the consular service, wherein he held an appointment for several years. In the meantime, they were each actually borne on the retired list and have since been continued thereon. Their right now [December 31, 1888] to be borne on the retired list depends upon the operation and effect of the provisions of the acts of 1868 and 1875^ upon their respective cases, and necessarily involves a construction of those provisions. There being a suit pend- ing in the Supreme Court (Badeau v. V. S.) which presents the same question precisely 580 The Navy. Pt. 2. REVISED STATUTES. Sec. 1440. that arises in those cases, involving a con- struction of the same statutory pro^^sions, and which will doubtless be determined during the present term of the court, the Attorney General thinks it inadvisable to express any opinion upon the two cases referred to, and suggests that it would be proper to await the decision of the court in that suit, which will finallv settle the question arising in them. (19 Op. Atty. Gen., 202.) Captain Badeau's name was borne on the retired list until May 7, 1878, when he was "dropped ' in conformity with an opinion of the Attorney General under section 1223, Revised Statutes, to date from May 19, 1869, date he ac- cepted office in the diplomatic ser\-ice. His name was restored to the retired list, July 3, 1878, by the Secretary of War, on the assnmp- tion that his case was within the first proviso to section 2, act of March 3, 1875, relating to retired officers then borne on the list. The Second Comptroller thereafter held that Captain Badeau's connection ^vith the Army entirely ceased May 19, 1869. From this \-iew the Acting Judge Advocate General of the Army dissents: Held, (1) That when Captain Badeau accepted the appointment and assumed the duties of an office in the diplomatic ser^^ce he therebv, by force and effect of section 2 of the act of "March 30, 1868, chapter 38, ceased to be an officer of the Army, and his place as such became vacant. The fact that his name remained on the rolls has no significance; it is simply evidence of a mistake of law in making those rolls. (2) That neither the act of March 3, 1875, nor the action of the Secretary of War above referred to operated to reinstate him as such an officer; the act of 1875, when speaking of names on the retired list, meant names there legally, not by mistake either of law or fact. That act should be construed to have a prospective effect only. And (3) That his name is not lawfully borne on the retired list of the Army. (19 Op. Attv. Gen., 610.) The act of 1868, section 2 (sees. 1223 and 1440, R. S.), says the acceptance of the diplomatic or consular office shall operate as a resignation and the military office thereby be made vacant. Vacant when? Manifestly, immediately upon the acceptance of the other office. By the statutes, the holding of the two places in the same person is made inconsistent and impos- sible. The election to take one is ipso facto the relinquishment of the other. It is a complete resignation. The military officer goes into chnl life; the military office is vacant, and may be filled by another appointment at once, it is a statutory resignation, yet it has all the essentials of an ordinary resignation. The officer by accepting the civil office tenders his resignation; the President, by appointing him to a civil office, consents to and accepts his resignation of the military office. This being so, the officer is as completely out of the Army as if he had resigned in the ordinary wav, been dismissed from the sersdce, or died. (19 Op. Atty. Gen., 610.) The act of 1875 could not put a man who had resigned and been six years a civilian Ijack into the Army. It will not do to say that l)y con- senting to the act of 1875, the President and Senate have consented to the appointment of Lieutenant Badeau as one of a class. First, it is a non sequitur, and the President has con- sented to a statute. Acts of Congress may and often do become operative as laws \vithout his consent and over his veto. Again, the Presi- dent and Senate can not make appointments by classes and general legislation. The Consti- tution contemplates that an appointment shall be made upon the separate consideration, first by the President and afterwards by the Senate, of each individual case by name and upon its own merits; and this constitutional require- ment is in no way met by a law which would induct men into office by classes. To hold otherwise would enable a two-thirds majority of each House of Congress, acting together, to legislate any number of men, by name or by a class, into office without the consent of the President at all. Of course such legislation would be absolutely void. (19 Op. Atty. Gen., 610.) If the act of 1875 were such as to restore to office in the Army any officer who had vacated such office, it would be clearlv unconstitutional and invalid ; but such is not its necessary read- ing. \Mien giving legislation a retroacti^'e effect, it is invalid, but gi\'ing it a prospectiA^e effect, it is valid, all rules of construction require that it shall be given a prospective effect only; and such is tlie rule which is and should be applied to the act of 1875. (19 Op. Atty. Gen., 610.) The question seems to have been mooted for many years, and an attempt has been made to have it adjudicated in the courts, but no such adjudication has been reached. In Badeau v. U. S. (130 U. S., 439), the court expressly declines to decide the question, as not being necessarily involved in the case, using the fol- loAving language: "TMiether by order of the Secretary'- of War, July 3, 1878, the claimant's name was properly restored to the retired list, we are not called upon to determine in this case, because even were that so, we do not think that his petition can be sustained. " The court did, however, in that case decide that the act of 1868, now embodied in section 1223 [and 1440] applies to officers upon the retired as well as upon the active list, saying, "no officer, whether on the active or retired list, could accept appointment in the latter" (diplomatic or consular service) "and remain an officer." This is practically a declaration by the highest court in the land that prior to 1875 an officer upon the retired list of the Army who accepted an appointment in the diplomatic or consular service thereby vacated his militaiy office; and, consistently with the language of the stat- ute, it does not appear how any other position is tenable. (19 Op. Attv. Gen., 610.) The act of March 3," 1891 (26 Stat., 872), directing the accounting officers of the Treasury not to suspend or withhold the pay of certain retired officers therein described, whose names were borne upon the retired list prior to the passage of and retained thereon in obedience to the act of March 3, 1875, applies only to offi- cers of the Army whose names were lawfully on the retired list, and not to those who prior to the passage of the last-mentioned act had severed themselves from the Army by force of section 2, 681 Sec. 1441. PL 2. REVISED STATUTES. The Navy. chapter 38. of the act of March 30, 18G8, in is of no consequence, inasmuch as the same was accepting or holding a diplomatic or consular placed there illegally, and without warrant of position. Held, that since May 18, 1869', Adam law, and that, therefore, he is entitled to none Hadeau has not been an ollicer of the United of the benefits claimed by him under the act of States Army, upon either the active or the re- March 3, 1891 [noted above]. (2 Comp. tired list; that the fact that his name was car- Dec, 7.) ried on the rolls as an officer on the retired list Sec. 1441. [Officers dismissed, or resigning to escape dismissal.] No officer of tlie Navy who has been dismissed by the sentence of a court-martial, or suffered to resign in order to escape such dismissal, shall ever again become an officer of the Navy.— (16 July, 1862, c. 183, s. 11, v. 12, p. 585.) Acceptance of resignation miist be communi- cated to officer before he may c^uit his post or proper duties without leave. (Sec. 1624, R. S., art. 10.) Midshipmen dismissed by sentence of court- martial for hazing shall be forever ineligi- ble for reappointment to Naval Academy. (Act June 23, 1874, 18 Stat., 203.) Midshipmen summarily expelled from Naval Academy for hazing shall not be reap- pointed to the Corps of Cadets or be eligible for appointment as a commissioned officer in the Army, Navy, or Marine Corps, until two years after graduation of the class to which they belonged. (Act Mar. 3, 1903, 32 Stat., li98.) Officers dropped from the rolls of the Navy or Marine ( 'orps on account of absence \vithout leave or imprisonment under sentence of civil courts, shall not be eligible for reap- pointment. (Act Apr. 2, ]918, 40 Stat., 501; see note to sec. 1229, R. S.) Officers and midshipmen who shall have left, the Navy under honorable conditions and who shall have enrolled in the Naval Re- serve Force, may be appointed to the grade and rank last held by them without exam- ination other than physical. (Act Aug. 29, 1916, 39 Stat., 588.) Officers, including midshipmen, who have left the naval service under honorable condi- tions, and who shall have enrolled in the Naval Reserve Force, shall be eligible for membership in the Fleet Naval Reserve. (Act Aug. 29, 1916, 39 Stat, 589.) Reappointment of any commissioned or warrant officer who shall have been honorably dis- charged from the service, was authorized by act of February 16, 1914, section 21 (38 Stat., 290.) See section 1624, Revised Statutes, article 37, and act of June 22, 1874, section 2 (18 Stat., 192), as to officers dismissed and afterwards demanding trial by court-martial. The spirit of the laws is against the re- appointment of any person who has been dis- missed from the Navy, as will be seen from sec- tion 1441, Re\dsed Statutes. (File 5252-43, Oct. 5, 1911.) Midshipmen dismissed from the Navy. — There is no provision of law expressly proliibit- ing the reappointment of a midsliipman who has been dismissed from the Navy, except in the single case of hazing. However, where a midshipman was dismissed for "intoxication and inaptitude," and thereafter nominated for appointment to the Naval Academy, held, that if the candidate's moral qualifications are not satisfactory and such as are required for the admission of candidates generally, he may be legally rejected; and whether or not he is so qualified is a cjuestion of fact. (File 5252-43, Oct. 5, 1911.) Effect of pardoning. — "Whether an officer dismissed by sentence of a court-martial who has been pardoned by the President, may again become an officer of the Navy, notwithstanding this proxdsion is a question not without diffi- culty. It is not the point specifically referred to in Mr. Myer's letter, and, therefore, I refrain from discussing it. But I do not hesitate to say that I think it can be shown that Congress did not intend by tliis clause to preclude the Presi- dent from reappointing officers of the Navy dis- missed by sentence of a court-martial to whom he has extended a pardon." (11 Op. Atty. Gen., 19, 23. Compare, cases noted under Constitu- tion, Art. II, sec. 2, clause 1, under " III. Power to Pardon Offenses against United States" ; and see Laws v. U. S., 27 Ct. Cls., 69.) If Congress thinks proper to accept the fact of dismissal ox enforced resignation of a naval officer as evidence of unfitness, or lack of qualification, it may do so without having its action in that regard overridden by the pardoning power of the President. An unconditional pardon abates whatever punishment flows from the commis- sion of the pardoned offense, but can not eradi- cate the factum which is made a criterion of fitness. The whole context of the original act from which section 1441 is taken discloses its nonpenal character. Accordingly, /i^-Zc?, "that section 1441 of the Revised Statutes is properly to be regarded as a rule relating to qualification for office in the Navy, that it does not impose a penalty as such on individual offenders, and that the incidental disaljilities which they may suffer by reasim of the statute are not removed by a pardon." Further, held, that the acts of February 16, 1914, and August 29, 1916 [above cited] do not show any purpose on the part of Congress to change the requirement of sectinn 1441; on the contrary, they confirm it, since each of these later acts bv its terms applies only to officers who have been honorably discharged from the service, ' ' or who have ' ' left that service under honorable conditions;" and that an officer who has been dismissed from the Na^y by sen- tence of court martial and subsequently par- doned is not eligible for reappointment to the Navy or to membership in the Fleet Naval Re- serve. (31 Op. Atty. Gen., 225, citing Op. J. A. G., Navv, Nov. 21, 1917, file 26282-326, Carlesi v. N. Y., 233 U. S., 51, etc.^ 582 The Navy. Pt. 2. REVISED STATUTES. Sec. 1442. Resignation under charges. — An Army officer having been charged with drunkenness, submitted an undated resignation to his com- manding officer to be held and not forwarded to the War Department if he should entirely ab- stain from the use of intoxicants, but to be for- warded to the department if he should become intoxicated again. On again becoming intoxi- cated his commanding officer dated and for- warded the resignation, which are duly accepted by the President and the officer notified. Held, that the office became vacant upon the officer's receipt of such notification, and that the sub- sequent action of the President in revoking his acceptance did not restore the officer to the service. (Mimmack v. U. S., 97 U. S., 426.) Sec. 1442. [Furlough of Officers.] The Secretary of the Navy shall have authority to place on furlough any officer on the active list of the Navy. — (3 Mar., 1835, c. 27, s. 1, v. 4, pp. 756, 757. 3 Mar., 1845, c. 77, s. 6, v. 5, p. 794. 28 Feb., 1855, c. 127, s. 3, v. 10, p. 617. 1 June, 1860, c. 67, s. 4, v. 12, p. 27.) Furlough of civil employees, see note to sec- tion 416, Revised Statutes, under "Suspen- sion of employees. ' ' Furlough without pay of enlisted men, subject to recall in time of war or national emer- gency. (Act Aug. 29, 1916, 39 Stat., 580.) No pay to be allowed officers or enlisted men, Navy or Marine Corps, absent from duty on account of iniury, sickness or disease result- ing from their own misconduct. (Act Aug. 29, 1916, 39 Stat., 580, as amended by act July 1, 1918, 40 Stat., 717.) Pay of officers on furlough, see section 1557, Revised Statutes. Retirement of officers on furlough pay, see sections 1454, 1593, and 1594, Revised Statutes. Secretary of the Na\'y may assign officers to duty on ocean mail vessels with furlough pay, see act of March 3, 1891, section 7 (26 Stat., 832). Section 1442 not repealed. — Section 1442, Revised Statutes, gives the right to furlough an officer of the Navy, and section 1557 fixes the proportion of the pay that he shall have while on furlough. These sections have not been repealed. (15 Comp. Dec, 73.) Status of officers on furlough. — ""UTien officers are furloughed by the Department in the administration of its general power, they may be restored by the same power. Their places have not been, and can not be. occupied by others. With them, to be furloughed or not to be, is only a question of duty and of pay. not of rank or place on the roll of the Nav5\ " (8 Op. Attv. Gen., 223, 236.) Under the act of March 2, 1895 (28 Stat., 910), authorizing the President to place ''on waiting orders out of the line of promotion, with one-half active-duty pay," officers of the Revenue-Cutter Service [now Coast Guard] who are permanently incapacitated, and to fill the resulting vacancies by promotion in the order of seniority, held, that an officer placed on "permanent waiting orders" is withdrawn from the line of promotion but may be restored to the service in his former rank when his disabilitv ceases, without congres- sional action. (21 Op. Atty. Gen., 286.) Officer can not be furloughed without statutory authority. — The pay of commis- sioned officers of the Revenue-Cutter Service [now Coast Guard], having been assimilated by law to that of the Army, and there being no power in the Secretaiy of War, ])y order, to reduce the pay of commissioned officers of the Army, held, that the order of the Secretary of the Treasury placing a commissioned officer of the Revenue-Cutter Service on leave of absence with half pay, as a punishment for an offense, was not authorized by law; and, accordingly, that the portion of the order directing the reduction of his pay to half pay, was inoperative. "Neither the Secretary of War nor any officer of the Government can force a leave of absence upon an officer or soldier * * *. A leave of absence is a favor extended." (Citing Hunt v. U. S., 38 Ct. Cls., 709, 710.) Compulsory absence by the order of a superior officer, which is not for the convenience or in the interest of the offi'cr who is relieved from duty, and where there is no legal authority to direct such compulsory aljsence, is not leave of absence within the meaning of section 1265, Revised Statutes, fixing the pay of Army officers while alisent. The power to dismiss officers of the Revenue-Cutter Service is not in the Secretary of the Treasury. Neither can he place them on leave of absence on half pay. They are entitled to their entire salaries be- cause of the commission they hold, except in cases wherein the law, or regulations having the force of law, makes other provision. (11 Comp. Dec, 570.) Difference between "firrlough" and "re- tirement." — Officers on furlough without be- ing retired are not included in the expression ' ' re- tired naval officers. " (12 Op. Atty. Gen. , 222.) Secretary may furlough, officer convicted by court-martial. — Where a medical officer is found guilty of vulgar and indecent acts and associations such as unfit him to treat persons in the Na\y and memliers of their families, should the court not sentence him to dismissal the Navy Department feels it would have no alternative but to place him on furlough as authorized by section 1442, Revised Statutes, although this would mean that, in accordance with section 1557, Revised Statutes, he must receive half pay, thus imposing expenditures ui>on the Government from its appropriations for the naval service without receiving any return therefor. (File 26251-11181, Dec. 17, 1915; G. C. M. Rec. No. 31436; CM. O. 49-1915, p. 27.) Suspension from duty by court-martial sentence. — As extended periods of severance from active duty are calculated to impair the efficiencv of an officer, and are detrimental to the interests of the naval service, that part of a 583 Sec. 1442. Pt. 2. REVISED STATUTES. The Navy. court-martial sentence of an officer which in- volved suspension from duty on leave pay was remitted. A sentence consisting of "three months' leave of absence" with the full pay correspondinfj: to that status, is not favorably regarded, particularly as such action would necessitate the detail of another officer to per- form the duty of the one luider sentence, wliile the latter remained idle. The granting of such leave is a priAdlege which would not, except under extraordinary circumstances, be accorded by the Navy Department to any officer during a tour of sea service. As to suspension from duty with reduction in pay, this has also been held an imd'3sirable form of punishment prejudicial to the l)est interests of the service and contrary to the policy of the Navy Department; the officer is probably left without employment and the Government loses his 8er\-ices. A sentence "to be suspended from rank and duty * * * to receive during said period one-half of shore pay," is inappropriate, since it relegates to idleness for two years an officer whose services are needed, and throws his work on others. (Naval Dig., 1916, p. 623.) 584 CHAPTER THREE. RETIRED OFFICERS OF THE NAVY. See. 1443. Retirement after 40 years' service. 1444. Retirement after 62 years of age, or 45 years' service. 1445. Officers of certain ranks to be retired only for disability. 1446. Officers who have received a vote of thanks; retirement after 55 years' serv- ice. 1447. Retirement of officers not recommended for promotion. 1448. Retiring board. 1449. Powers and duties of retiring board. 1450. Oath of members, retiring board. 1451. Findings of retiring board, cause of in- capacity. 1452. Record of proceedings; revision by Pres- ident. 1453. Disaljility due to an incident of the service. 1454. Officers wholly retired, or retired on fur- lough pay. Sec. 1455. Officers not to be retired without a hear- ing. 1456. Officers not to be retired for misconduct. 1457. Grade and status of retired officers. 1458. Vacancies filled by promotion according to seniority. 1459. Retii-ed officers withdrawn from com- mand, and from line of promotion. 1460. Promotions to rear admiral on the retired list. 1461. Promotion of retired officers with running mates on active list. 1462. Active duty for retired officers. 1463 . Assignment of retired officers to command in time of war. 1464. Commanding officers of squadrons to have rank of "flag officer." 1465. Restoration of retired officers to active list. Sec. 1443. [Retirement after forty years' service.] When any officer of the Navy has been forty years in the service of the United States he may be retired from active service by the President upon his own appHcation. — (3 Aug., 1861, c. 42, s. 21, V. 12, p. 290.) Amendment to this section was made by act of May 13, 1908 (35 Stat., 128), authorizing retirement after 30 years' service upon ap- plication of officers. See also section 1445, below. Acting assistant surgeons not entitled to retire- ment. (See note to sec. 1411, R. S.) Captains, commanders, and lieutenant com- manders who become ineligible for pro- motion on account of age shall be retired at rate of pay graded according to length of service. (Act Aug. 29, 1916, 39 Stat., 579.) Dental Corps officers who were over 40 years of age on original app^ointment shall not be eli- gible for retirement before reaching the age of 70 years, except for physical dis- ability incurred in line of duty. (Act Aug. 29, 1916, 39 Stat., 574, as amended by act July 1, 1918, 40 Stat., 709.) Dental surgeon at the Naval Academy not to be retired before reaching age of 70 years, ex- cept for phvsical disability incurred in line of duty. (Act Mar. 4, 1913, 37 Stat., 891, as amended by act July 1, 1918, 40 Stat., 709. Enlisted men, retirement of. (See acts Mar. 3, 1899, sec. 17, 30 Stat., 1008; June 22, 1906, 34 Stat., 451; Mar. 2, 1907, 34 Stat.. 1217; Mar. 3, 1915,38 Stat., 941; Aug. 29, 1916, 39 Stat., 591.) Machinists to be retired under the provisions of existing law for warrant officers. (Act Mar. 3, 1899, sec. 15, 30 Stat., 1008.) Marine officers, retirement of. (See sec. 1622, R. S.) Mates, retirement of. (See note to sec. 1408, R. S.) Midshipmen, retirement of. (See note to sec. 1445, R. S.) Naval Reserve Force members shall not be eligible for re:irement other thau for physi- cal disability incurred in line of duty. (Act July 1, 1918, 40 Stat., 710). Trans- ferred members of the Fleet Naval Reserve shall be eligible for retirement after 30 years' service (Act Aug. 29, 1916, 39 Stat., 591); service in the Navy, Marine Corps, National Naval Volunteers and Naval Mi- litia, shall be counted as continuous service in the Naval Reserve Force for the purpose of retirement (act July 1, 1918, 40 Stat., 710). Officers of the Naval Reserve Force physically disabled in line of duty shall be eligible for retirement under same conditions as officers of the Regular Navy. (Act June 4, 1920, sec. 2, 41 Stat., 834.) 585 Sec. 1443. PL 2. REVISED STATUTES. The Navy. Pay clerks and acting pay clerks shall have the same pay, allowances, and other benefits as now or hereafter allowed other warrant oflieers and act ins; warrant oflicers. (Act Mar. 3, 1915, 88 tStat., 942, 943.) Pay of oflicers retired after 40 vears' service. ' (See sec. 1588, R. S.) Rank of oflicers on retirement. (See note to sec. 1457, R. S.) Retiring board not necessary for retirements on account of length of service. (See sec. 1455, R. S.) Service as officers or enlisted men in the Regular or Volunteer Army or Navy, or both, shall be credited to all oflicers of the Navy for all purposes, the same as if all said service had been continuous in the Regular Navy. (Act Mar. 3, 1883, 22 Stat., 473.) SerAdce as officers in different corps of the Navy or in the Marine Corps shall be credited to all officers for all purposes. (Act June 10, 1896, 29 Stat., 361.) Service as a midshipman at the Naval Academy or as a cadet at the Military Academy shall not be counted in computing for any p\ir- pose the length of service of any officer in the Navy or Marine Corps hereafter ap- pointed to either of said academies. (Act Mar. 4, 1913, 37 Stat., 891.) Sea service to be credited to volunteer officers transferred to the Regular Navy in the same manner as if they had been in the Regular Navy during such serAdce. (Sec. 1412, R. S.) Service previously rendered by appointees as chief pay clerks, pay clerks, or acting pay clerks, together with their possible future service prior to attaining age of 62, must amount to at least 30 years. (Act Mar. 3, 1915, 38 Stat., 942,943.) Temporary officers appointed for war with Ger- many not entitled to retirement except for physical disability incurred in line of duty. (Act May 22, 1917, sec. 9, 40 Stat., 86; act June 4, 1920, sec. 2, 41 Stat., 834.) Warrant officers, retirement of. (Sc^e Brown v. U. S., 113 U. S., 571, noted under sec. 1448, R. S.; and see note to sec. 1405, R. S.) "The Secretary of the Navy represents the President, and exercises his power on the subjects confided to his department." (U. ^. V. Jones, 18 How. 92; see further, note to sec. 417, R. S.) The retirement of officers of the Navy, wheth- er oc urring under section 1443 or according to the terms of the appropriation act of June 29, 1906 (34 Stat., 554), is made oiilj^ by the Presi- dent, not by the Secretary of the Navy. From both se'don 1443 and the act of P06, it appears that, with the determination of tlio question of retirement, tlie Secretary of the Navy has nothing directly to do; it is for the President. Where, therefore, an officer of the Navy was retired, pursuant to the express direction and approval of the President, as a captain of the Navy, and at no time since such retirement has the President conferred a higher rank upon him, the Secretary of the Navy has neither duty, authority, or power to place the name of such officer upon the retired list with the rank of rear-admiral. (Moser v. Meyer, 38 App. D. C, 13.) President has discretion to deny appli- cation for retirement. — The act of May 13, 1908 [noted above as an amendment to this sec- tion], does not declare that the officer may vol- untarily retire after 30 years' service. Such an idea is in fact negatived by placing his retire- ment entirely within the discretion of the President. The ofiicer is vested with the right to make application for retirement, but there his right ends and the discretion of the Pres- ident begins. (28 Op. Atty. Gen., 417.) When retirement becomes legally ef- fective. — See note to section 1457, Revised Statutes, tinder "When retirement or advance- ment on retired list takes effect." See also notes to sections 1444 and 1458, Revised Stat- utes. Civilian employees not entitled to benefits of Navy retirement laws. — A clerk appointed for duty in a navy pay office is not an officer of tlie Navy entitled to retirement for age or length of service; he was no more an officer of the Navy than any one of the many employees of the Navy Department at Wash- ington. (Foreman v. Meyer, 227 U. S., 452; 38 App. D. C, 472.) The Navy Department can not coimtenance any proposed legislation seeking to engraft on the military retired list of the Navy the cost of a civil retired list made up in whole or in part of the great number of civil service employees of this department. (File 26255-295:12, Oct. 27, 1914.)_ The privileges of retirement under the laws relating to the Army are confined to officers of the Army, and an applicant for retirement must bring himself within that class before he can claim the advantage of those privileges. (29 Op. Atty. Gen., 249.) The test to distinguish between a civil officer whose duties lie in the War Department, and an officer of the Army, is that laid down in 16 Op. Atty. Gen., 13 (and see U. S. v. Tyler, 105 U. S., 244, 245), viz, that officers of the Army are those officers who are a part of ' ' the militarj^ establishment," created by general acts of Congress organizing the "Armj^ of the United States," and defining what it shall "consist of," and as such are subject to the rules and Articles of War. These acts, in so far as officers are concerned, provide for a graded, formal or- ganization, the persons in which have rank, are in line of promotion to a higher rank, wear uni- forms as the badge of that rank, are subject to military discipline and to orders issued to en- force that discipline, and have acquired, to speak generally, the status of soldiers in addi- tion to their status as citizens or their status of officers of the United States. (29 Op. Atty. Gen., 249.) In view of the ]7rohibition in the act of Feb- ruary 24, 1899 (30 Stat., 846, 890), that "the establi-shment of a civil pension roll, or an hon- orable servdce roll, or the exemption of any of the officers, clerks, and persons in the public service from the existing laws respecting em- ployment in such service is hereby prohibited," care should be taken not to. extend the Army retirement acts so as in effect to create not only a "civil pension roll," but a limited and special one. (29 Op. Atty. Gen., 249.) 586 The Navy. PL 2. REVISED STATUTES. Sec. 1443. An expert accountant in the inspector gen- eral's department of the Army is not entitled to be placed on the retired list of the Army on the ground that he has reached the age of 64 years. Although an officer of the United States, it does not follow that he is also an officer "of the Army." It is clear that an officer of the United States may have functions and duties relatmg solely to the Army and may be paid entirely from appropriations for the Army, and yet not be "of the Army." (29 Op. Atty. Gen., 249, citing Brown's Case, 32 Ct. Cls. 379, 386, 387, 388; Huse'sCase, 43 Ct. Cls., 24; U. S. r. Burns, 12 Wall., 252; U. S.r. La Tourrette, 151 U. S., 572, 576; 27 Op. Atty. Gen., 468, 471, 472, 475.) The appropriation acts for the Army provide specifically "for pay of the officers in the in- spector general's department," while the pro- vision for the expert accomitant is always under the heading, "Miscellaneous." He has no "actual rank," within section 1254, Revised Statutes; he has no "command," and is not in "the line of promotion," within section 1255; he has no "uniform of the rank;" he has never been "borne on the Army Register," and is not, in the time of peace and never has been, "subject to the rules and Articles of War," nor to "trial by general court-martial," within section 1256. There is no way of fixing his pay on retirement, as he has no "rank," to be used as a basis of computation within section 1274; finally, he has never been treated by the War Department in orders or regulations or in any other way as an officer "of the Army." As said in Brown's Case (32 Ct. Cls., 379), "the status of such an officer, the department or place to wliich he properly belongs, is something which can be much better determined by the legislative and executive branches of the Gov- ernment, than by the judicial." (29 Op Atty. Gen., 249.) Persons held, to be oflB^cers within mean- ing- of Navy retirement laws. — Paymasters' clerks are "officers of the Navy," within the meaning of the act of May 13, 1908 (35 Stat., 128), which provides for the retirement of offi- cers of the Navy who have been in the service 30 years. (27 Op. Atty. Gen., 157, Jan. 22 1909; compare Ashton v. U. S., 51 Ct. Cls., 65, overruling Katzer v. U. S., 49 Ct. Cls., 294.) A paymaster's clerk in the NaA^, who at the the time of retirement was serving under an appointment issued to him since the adoption of paragraph 1751, Navy Regulations, 1900, requiring the appointment of paymasters' clerks to be made by the Secretary' of the Navy, is an "ofiicer of the Navy," for the purjwse of retirement within the meaning of the act of May 13, 1908. (15 Comp. Dec, 628.) Paymasters' clerks in the Army are officers in the regular ser^ice within the meaning of the acts of Congress respecting retirement for length of ser\ice and physical inc-apacity. (27 Op. Atty. Gen., 493; see also 9 Comp. Dec, 90.) The opinion holding that Army paymasters' clerks were entitled to retirement (27 Op. Atty. Gen., 493), went upon the assumption that a paymaster's clerk has a status in the Army in all essential respects similar to the status of a paymaster's clerk of the Navy, and as the latter officer had been considered by the courts and by the Navy Department to be an officer of the Navy and subject to the rules and regulations of the Navy, it was assumed that the same conditions prevailed as to the analo- gous office of paymaster's clerk in the Army. Whether that assumption was correct or not is immaterial in view of the subsequent action of Congress in specifically authorizing the re- tirement of such clerks. But it will be noticed that such authorization was upon the express condition that "Army paymasters' clerks shall be subject to the rules and Articles of War" (36 Stat., 1044). (29 Op. Atty. Gen., 253.) As to retirement of pay clerks in the Navv, see act of March 3, 1915 (38 Stat., 942,) noted above; and see note to section 1386, Revised Statutes. Civil engineers are officers in the Navy, and may be retired under this section, which applies to staff officers as well as to the line. (17 Op. Atty. Gen., 126.) As to retirement of warrant officers, mates, etc., see references given above under this section. Status of oflicer iUegaUy retired. — Where the Secretary of the Navy by order retired or attempted to retire an officer of the Navy who had not had 40 years' service, and no appoint- ment had been made to the place vacated, the officer must be regarded as still on the active list of the Navy. (21 Op. Atty. Gen., 103; see also 17 Op. Atty. Gen., 21; compare 26 Op. Atty. Gen., 615, 27 Op. Atty. Gen., 66.) WHAT TIME COUNTS AS NAVY. SEHVICE IN THE Commences upon date of actual entry into service of United States. — Every department of the Government which has had occasion to construe the word "service" in connection -with our military system, has, by long-continued and uniform dec^isions and practice held that, in case of volunteer officers commissioned by the governors of States, their entry into the military service of the United States dates from their muster in and not from date of their enrollment; and in case of volun- teer officers appointed by the President, by and with the advice and consent of the Senate, their service dates from the acceptance of their commissions and oath of office. There are substantial reasons for this construction of the word "service." Accordingly, held, that the prior service of an officer of the Army which is entitled to be counted in determining his relative rank with other officers does not include any period prior to his actual entry into the Army, notwithstanding that Congress author- ized payment of compensation from an earlier date. (23 Op. Atty. Gen., 406, modifying 23 Op. Atty. Gen., 232.) _ A warrant as midshipman was Issued to an officer December 11, 1812; he did not report for duty, receive orders, nor become entitled to pay as a midshipman until July 1, 1816. Hfld, that his period of service for retirement shoidd be computed from the latter date. If the ques- tion were new, it would be open to serious doubt, but having been decided, and that decision tacitly assented to bv Congress, it should stand. (13 Op. Atty. Gen., '33.) 54641°— 22- -38 587 Sec. 1443. PL 2. REVISED STATUTES. The Navy. Where an officer upon oripnal appointment to the Army was commissioned July 27, 1866, to rank from May 11, 1866, and accepted said commission and entered upon duty September 15, 1866, held, that the peiiod elapsing from the date ho took rank as stated in said comrnis- eion to the date that he accepted same and en- tered upon duty, was constructive and not actual ser\-ice, and can not be counted in fixing his relative rank with other officers in cases where the statute requires that prior actual serv- ice shall be counted. (17 Op. Attv. Gen., 52.) Ser\-ice commences for purposes of longevity pay from the day the officer's commission was signed by the President, and not from an an- tecedent date mentioned in the body of the commission. (Young v. U. S., 19 Ct. Cls., 145.) The three years' ser\-ice necessary for promo- tion of ensigns to lieutenants (junior grade) under section 7 of the Navy personnel act of March 3, 1899 (30 Stat., 1005), should be com- puted from the date of their rank as ensigns, this being in accordance with the existing con- struction of the law by the accounting officers and the Navy Department. (22 Comp. Dec, 625, citing 22 Comp. Dec, 565, 566; 18 Comp. Dec, 466;- 17 Comp. Dec, 605.) Service commences for purposes of longevity pay from date of accepting the office and not from date of taking oath of office where latter is subsequent to acceptance. Yl2 Comp. Dec, 245.) Where an officer's commission is antedated on original appointment for purposes of rank, his length of service for purposes of promotion may be computed from the date so stated in his commission. (Toulon v. U. S., 52 Ct. Cls., 333; see also 22 Comp. Dec, 623; 17 Comp. Dec, 605; 22 Comp. Dec, 565, 566; 24 Comp. Dec, 177; 18 Op. Atty. Gen., 393, 394.) The service of volunteer officers does not commence until they are mustered into the United States, notwithstanding that by statute they are allowed pay trom date of enrollment. (7 Comp. Dec, 617.) Period from date of dismissal to reap- pointment, not counted. — Where an officer was dismissed from the Navy and subsequently reappointed pursuant to a joint resolution of Congress, the inter\'ening period during which he was not in fact in the naval service can not on any theory be counted as part of said 40 years for retirement under section 1443, Revised Statutes. The act of March 3, 1883 (22 Stat., 472), which closes the gap in intermittent serv- ice so as to make it operate as continuous, shows conclusiA-ely that actual service and none other is contemplated by the law. (21 Op. Atty. Gen., 103.) Period of unauthorized absence not a period of service. — A private in the Marine Corps is not entitled in computing his increase ot pay for length of service to count the time he was absent from duty without leave. The period of such unauthorized a])sence can not be regarded as a period of ser\'ice. (10 Comp. Dec, 333; file 5460-82, June 3, 1916.) Period of service under an illegal ap- pointment. — An officer of the Revenue- Cutter Service [now Coast Guard] is not entitled to credit for prior service as acting assistant engineer, where his appointment as such was not authorized by law. (10 Comp. Dec, 854, with reference to longevity pay.) Prior service in Coast Guard not counted. — Service in the Revenue Cutter Ser\dce [now Coast Guard] is in no sense service in the Army or Navy. Accordingly, hdd that officers of the Marine Corps are not entitled to credit in computing longevity pay for prior service in the Revenue-Cutter Service. (15 Comp. Dec, 807. But see act June 4, 1920, 41 Stat., 835, and note to sec 1417, R. S.) Prior service in militia not counted. — Officers of the Army are not entitled to credit for prior militia service in computing their longevity pay. (12 Comp. Dec, 522; compare 24 Comp. Dec, 120. See act of July 1, 1918 40 Stat., 710, crediting Naval Reserve Force members with service in the Naval Militia, etc., for purpose of retirement.) Prior service as captain's clerk. — Service as captain's clerk in the Navy should be allowed in computing the longevitv pay of an officer of the Army. (17 Op. Atty. Gen., 93.) Prior service as commandant's clerk. — The proposal to count ser\ice of clerks of com- mandants in computing military service is an attempt to engraft on the retired list of the Navy and Marine Corps a ciAil retired list. Such legislation is regarded by the Navy De- partment as pernicious, needlessly expensive, and a dangerous precedent; the department is unqualified! v opposed to its enactment. (File 26255-295:9, 'May 14 and 21, 1914; file 2625^ 295:8, April 29, 1914; file 26255-295:5, Mar. 30, 1914.) Service as commandant's clerk, being strictly civilian service, should not be counted as naval service any more than any other clerical service at navy yards or in the department proper. Accordingly, the Navy Department disapproves of proposed legislation intended to credit officers -ndth service as commandant's clerks for purposes of retirement, etc. (File 26255-274:2, Jan. 21, 1913.) The position of clerk to the governor of the Naval Home is comprehended in the class of clerks to com- mandants of naval stations who under the pro- visions of the act of July 15, 1870 (16 Stat., 332, sec. 3), are officers of the Navy and ac- cordingly under the act of March 3", 1883 ( 22 Stat., 473), credit for service therein is author- ized in computing the longevity increase of pay of an officer of the Navy. (25 Comp. Dec, 745.) Service as civilian employee. — Service as a civilian employee in a Navy pay office can not be credited as actual naval serWce within the meaning of the retirement clause in the act of Congress approved Mav 13, 1908. (File 5460-35 and 36.) Ser\ice as a messenger and clerk in the com- missary and quartermaster's departments of the Army is not serAice in the Army within the meaning of the provision for longevitv pav. (10 Comp. Dec, 83.) See note to section 1417, Revised Statutes, "Apprentices at navy yards not enlisted men." Time under arrest, in confinement, on bail, etc. — It has long been well settled that the time passed in arrest under military con- 588 The Navy. Ft. 2. REVISED STATUTES. Sec. 1444. trol, but not under sentence of court-martial, must be counted in making up five-year service periods for increased pay under section 1262, Revised Statutes. (3 Comp. Dec, 682; com- pare 3 Comp. Dec, 697; 3 Comp. Dec, 433.) A soldier in an-est under military control may be required to perform many duties; he is entitled to a speedy trial, and if held in arrest for a long period, it is for the convenience of the Government. (3 Comp. Dec, 683.) In view of the presumption of law that a person charged -with crime is innocent until found guilty by a competent tribunal, although this rule has some limitations in military law as in cases of time lost by absence without leave or by desertion, held, that a soldier who is restored to duty from arrest without trial is entitled to count the time he was held in arrest under military control as service for bounty purposes (3 Comp. Dec, 676). But, if subse- quently found guilty, time so in arrest can not be counted in making up the term of ser\ice necessary to obtain bounty, as during such period he is not serving within the meaning of the bounty laws. (3 Comp. Dec, 684; see also 3 Comp. Dec, 692.) A statute pro^dding that deserters from the Army shall be liable to "serve" for such period as necessary to make good time lost while in desertion, refers to actual military service and does not include time spent in prison under sentence of coiurt-martial. The period during which a soldier is in arrest and confinement in pursuance of a court-martial sentence after his term of enlistment has expired should not be counted in the computation of his continu- ous-service pay. (12 Comp. Dec, 592.) Pay of an enlisted man of the Navy held by the civil authorities for trial on a criminal charge should not be paid until he is acquitted, and if found guilty his pay is then forfeited to the United States from the date of his arrest. (2 Comp. Dec, 584.) Where a carpenter's mate of the Navy was arrested by the ci\'il authorities on a criminal charge, and admitted to bail on his own recog- nizance and his trial indefinitely postponed, and it was apparently not the intention of the authorities to further prosecute his case, his pay was not thereby forfeited. (10 Comp. Dec, 490. )_ It is well settled that an enlisted man in the military service is not entitled to pay for time while held for trial by the civil authorities, unless subsequently tried and acquitted, or discharged without trial. (10 Comp. Dec, 490.) A soldier arrested by the civil authorities and released without trial, is entitled to pay and allowances during the period he was in arrest, and to count said period for bounty. (3 Comp. Dec, 676; see also 9 Comp. Dec, 249.) Where contacted by the civil authorities, he is not entitled to pay and allowances from the date he was turned over to the civil authori- ties. (3 Comp. Dec, 334.) An officer of the Army who was con\dcted by the ci\'il courts of the Philippine Islands and released under bond, pending an appeal to a higher court, is not entitled to pay pending the final determination of the appeal. (11 Comp. Dec, 659.) The status of such officer is that of "absent without leave," within the mean- ing of section 1265, Revised Statutes, pending the determination of said appeal, and under the provisions of said section he is not entitled to pay during such absence. (11 Comp. Dec, 755. Overruled, Carrington v. U. S., 46 Ct. Cls., 279, citing Walsh v. U. S., 43 Ct. Cls., 225.) An officer of the Navy who had previously served as an enUsted man in the Army is en- titled to be credited with service for the time he was in confinement under sentence of Army court-martial for desertion. (File 5460-82, June 3, 1916). Sec. 1444. [Eetirement after sixty-two years of age, or forty-five years service.] When any officer below the rank of Vice- Admiral is sixty- two years old, he shall, except in the case provided in the next section, be retired by the President from active service. — (21 Dec, 1861, c. 1, s. 1, v. 12, p. 329. 16 July, 1862, c. 183, s. 8, v. 12, p. 584. 25 June, 1864, c. 152, s. 1, v. 13, p. 183. 21 Dec, 1864, c 6, s. 3, v. 13, p. 420. 3 Mar., 1873, c 230, v. 17, p. 556.) Amendment to this section was made by act August 29, 1916 (39 Stat. 579), fixing the age of retirement at 64 years, except in the cases of captains, commanders, and lieu- tenant commanders who, after June 30, 1920, become ineligible for promotion on account of age (56, 50, or 45 years, respect- ively), who shall be retired at rates of pay graded according to their length of service. (See also sec. 1445, below.) Dental Corps officers who were over 40 years of age on original appointment shall not be eligible for retirement before reaching the age of 70 years, except for physical dis- ability incurred in line of duty. (Act Aug. 29, 1916, 39 Stat., 574, as amended by act July 1, 191g, 40 Stat., 709.) Dental surgeon at the Naval Academy not to be retired before reaching the age of 70 years, except for physical disability in- curred in line of duty. (Act Mar. 4, 1913, 37 Stat., 891, as amended by act July 1, 1918, 40 Stat., 709.) Naval Reserve Force members shall upon reach- ing the age of 64 years be disenroUed except that in time of war or other national emergency such members of the Naval Reserve Force, if in active service, may be continued therein during such period as the Secretary of the Navy may deter- mine, but not longer than six months after said war or other national emergency shall cease to exist. (Act July 1, 1918, 40 Stat., 711.) 589 Sec. 1444. PL 2. REVISED STATUTES. The Navy. Pay of oflicers retired ''after forty -five years' 8er\ice after reacliiug the age of sixteen years, * * * or on attaining the age of sixty-two years." (See sec. 1588, R. S.) Rank on retirement of staff officers retired for age or after 45 years' service. (See sec. 1481, R. S.) Rank on retirement of certain bureau chiefs retiied for age. (See sec. 1473, R. S.; see generally, as to retirement of cliiefs of biueaiis, note to sec. 421, R. S.; and see note to sec. 1457, R. S., as to rank of officers on retirement under special conditions.) Retiring board not necessary for retirements on account of age. (See sec. 1455, R. S.) Retirement of staff ofhcers after 45 years' service. (Sec. 1481, R. S.) Warrant officers, mates etc. (See note to sec. 1443, R. S.) Historical note. — This section, as drafted by the Conmiissioners for the Revision of the United States Statutes (1 Comrs. Draft, 700), was entitled, "After sixty-two years of age, or forty-five years' service," and" read: "When any officer below the rank of vice admiral is sixty-two years old, or uhen his name has been borne on the Naval Register for a period of forty- five years since he arrived at the age of sixteen years, he shall, except in the case provided in the next section, be retired by the President from active service." The words in italics were omitted from tliis section as adopted by Congress, but the caption, "After sixty-two years of age, or forty-five years' service," was retained. The laws upon which tliis section as drafted by the Commissioners was based, and which are cited iia the marginal notes theremider, pro- vided as follows: Act of December 21, 1861, section 1 (12 Stat., 329): "That whenever the name of any naval officer now in the service, or who may hereafter be in the service of the United States, shall have been borne on the Naval Register forty-five years, or shall be of the age of sixty-two years, he shall be i-etired from active service, and his name entered on the retired list of officers of the grade to which he belonged at the time of such retirement." Act July 16, 1862, section 8 (12 Stat., 584): "That whenever, upon the recommendation of the President of the United States, any officer of the Navy, now upon the active list, not below the grade of commander, has received, or shall receive, by name, during the present war, a vote of thanks of Congress for distinguished service, such officer shall not be retired, except for cause, until he has been fifty-five years in the naval service of the United States." Act June 25, 1864, section 1 (13 Stat., 183), pro-\dded that the above section of the act of December 21, 1861, "shall not be so construed as to retire any officer under the age of sixty- two years, and whose name shall not have been borne upon the Navy Register for a period of forty-five years after he had arrived at the age of sixteen years." Act December 21, 1864, section 3 (13 Stat., 420): "That the first section of an act approved December twenty-first, eighteen hundred and sixty-one, entitled 'An act further to promote the efficiency of the Navy,' shall not be so construed as to apply to any one holding a commission as a vice admiral in the Navy." Act March 3, 1873 (17 Stat., 556): "That the act of Congress approved December twenty- first, eighteen hmidred and sixty-one, entitled 'An act to further promote the efficiency of the Navy,' and the act approved June twenty- fifth, eighteen hundred and sixty-four, entitled 'An act to amend the act of the twenty-first December, eighteen hundred and sixty-one, entitled "An act to further promote the effici- ency of the Navy," ' shall not be hereafter con- strued to retire any officer before sixty-two years of age." The first section of the act of December 21, 1861 (12 Stat., 329), retired from service two classes of naval officers, firstly, those whose names may have been borne on the Naval Regis- ter 45 years, and secondly, those who had arrived at the age of 02 years. The act of June 25, 1864, provided that the act of 1861 "shall not be so construed as to retire any officer under the age of sixty-two j'ears, and whose name shall not have been borne upon the Navy Register for a period of forty-five years after he had arrived at the age of sixteen years." The latter act had the effect of removing from the retired list officers of the Navy who were retired in pursuance of the act of December 21, 1861, but who were not liable to be retired by the provision of the act of 1864. (11 Op. Atty. Gen., 144.) The act of December 21, 1861, prescribed that officers should be retired from active serv- ice for two separate reasons, ^n.z, (1), whose names shall have been borne on the Navy Reg- ister for 45 years; or (2), who shall be of the age of 62 years. That act did not speak in the conjunctive but in the disjunctive; that is, if either the one cause or the other existed, an officer might be retired. This act was manda- tory, and if an officer had served 45 years his retirement followed as a matter of course, with- out regard to his age. As a result, no doubt, offi- cers were placed on the retired list who had not attained the age of 62 years, and this fact led to the enactment of the act of June 25, 1864, whereby the retirement of an officer was for- bidden until he had reached the age of 62 years and his name had been borne on the N avy Reg- ister for 45 years. Here the act was in the conjunctive, and thereafter both conditions for retirement apparently must have concurred, i. e., both as to age and as to length of service. Later came the act of 1873, which provided that the acts above mentioned should not be con- strued "to retire any officer before sixty-two years of age"; but while no express mention was made therein as to any modification of the retirement as to the completion of 45 years' service, it is a fact that the Navy Department for nearly 40 years has construed the law now embodied in section 1444 of the Revised Stat- utes as only requiring the fulfillment of either requirement. (File 5460-32 : 17, Feb. 7, 1912.) The opinion of the District of Columbia Su- preme Court in the case of Foreman v. Meyer (mandamus against the Secretary of the Navy, file 5460-32) states the provisions of law upon which section 1444, Revised Statutes, is based, and then continues: "This legislation, ante- dating the enactment of said section 1444 of the 590 The Navy. Pt. 2. REVISED STATUTES. Sec. 1444. Revised Statutes of 1878, indicates that it was not contemplated by Congress that ofiicers were to be retired on reaching the age of 62 years, unless they had been continuously in the serv- ice for 45 years; and for that reason the relator, even if he is an officer within the meaning of that section, which is c[uestionable, fails to show a clear case entitling him to the right of retire- ment or a plain administrative duty on the part of the Secretary of the Navy to place his name on the list of retired officers. ' ' The court then reviewed the periods of service of peti- tioner and said that "taken all together, they do not seem sufficient to warrant the court in holding that he has been for 45 years in the service of the United States as a naval officer, and it is not certain but that a proper construc- tion of the law requii'es such service to be shown before the President is in duty bound to act in the premises." (File .5460-32:17, Feb. 7, 1912; see also Foreman v. Meyer, 227 U. S., 452, 38App. D. C, 472.) It must be conceded that the several separate provisions of law upon which section 1444 is based are not entii'ely clear, but the construc- tion given to those laws by the Navy Depart- ment during a period of 39 years under siich circimistances should be controlling (citing U. S. V. Healey, IGO U. S., 136, 141, 145). But even if this fact were not regarded as controlling, there is other evidence of a legislative character as to what were intended to be the require- ments for the kind of retirement now being considered (citing sees. 1481 and 1455, R. S.). The former section plainly provides for retire- ment after 45 years' service, but it also pro- vides separately for the retirement of officers at the age of 62 years, "before having served for forty-five years," and confers a higher rank upon those of this latter class "who shall have served faithfully until retired " after 40 years' service. This is a definite legislative recogni- tion of the department's construction of the law, and clearly shows that the provisions of the law then and now in force do not require that an officer must have served 45 years before he can be retired for age, but, on the contrary, indi- cate that there may be retirement for the single reason that an officer has attained the age of 62 years. Section 1473, Revised Statutes, also indicates the same construction, and section 1588 confirms it. The latter section specifically provides for retirement on attaining the age of 62 years, separate and distinct from retirement after 45 years' sersdce. Section 1589 also con- firms the views above expressed . It appears to be evident from the above that the construction placed by the Navy Department upon the law relating to retirement for age is entirely correct. (File 5460-32:17, Feb. 7, 1912.) The act of March 3, 1873 (above quoted), in effect repealed the 45-year retirement clause in tJie act of December 21, 1861 (above quoted), and the latter clause has not been carried into the Revised Statutes. (File 27231-10, Feb. 9, 1910; see also sec. 5596, R. S., repealing all acts of Congress passed prior to Dec. 1, 1873, any portion of which is embraced in any section of the Revised Statutes.) Age retirement not automatic; action of President required. — The Army law, providing that when an officer "is sixty-four years of age he shall be retired from active serv- ice and placed on the retired list," does not operate, ipso facto, to place him on the retired list when he reaches the age specified, but it requires action by the President to carry it into effect. Accordingly, hdd that where an order was issued on the date that an officer became 64 years of age, retiring him from active service, which order was not received by him until more than a month later, and he was not re- lieved of duty until another month later, he was entitled to full pay to the date that he was relieved from duty. (9 Comp. Dec, 20; com- pare 9 Comp. Dec, 299, noted below.) The delay in the above case was not unrea- sonable, and was not caused by any act or de- fault of the officer. It is within the power of the War Department to issue an order in ad- vance of the date on which an officer arrives at the age of 64 years, to take effect on that date, and also to issue an order to him in ad- vance relieving him from duty on the active list on that date. (9 Comp. Dec, 20; compare 9 Comp. Dec, 299, noted below.) Retirement for age automatically de- taches officer from duty. — The retirement of an officer for age therel)y detaches him from active duty, and the commanding officer of his vessel is not authorized to retain him in active service unless it is done in accordance with a decision of the Secretary of the Navy pursuant to law. Accordingly, held that an officer so retained in active service without authority of the Secretary of the Navy, is entitled to retired Bay only, from date of his retirement. (9 Comp. •ec, 299; see also note to sec. 1462, R. S.; compare 9 Comp. Dec, 20, noted above.) An order of the President placing an officer of the Navy upon the retii'ed list pursuant to sec- tion 1444, Revised Statutes, changes the status of such officer wherever he may be and whatever duty he may be performing, and thereafter he is entitled to retned pay only unless such status is changed by some subsequent order of the Secre- tary of the Navy to perform active duty . 1 1 may be that the Secretary of the Navy might issue a preliminary order in terms assigning an officer to duty after retirement, but such order should be certain in its terms and not given that effect by strained construction. (Terry v. U. S., Ct. Cls., No. 28148, 86 S. and A. Memo., 644; see also 17 Comp. Dec, 533.) When retirement for age becomes effective. — An officer of the Navy becomes 62 years of age and is required to be retired within the meaning of section 1444, Re\'ised Statutes, the moment of the beginning of the date of the sixty-second anniversary of his birth, and is not entitled to jsay on the active list on that day. (3 Comp. Dec, 581. In this case the order for the officer's retirement was issued beforehand, to take effect on the date of his sixty-second birthday. Compare 16 Comp. Dec, 682, noted under sec. 1458, R. S.) The officer ceased to be an officer on the ac- tive list of the Navy upon the very moment after midnight that the 5th day of April began, and was in accordance with the very terms of the order of April 1, transferred to the retired list "on April 5, 1897." The law does not consider fractions of a day, "and it is the same whether a thing is done upon one moment of 591 Sec. 1444. PL 2. REVISED STATUTES. The Navy. the (lay or another." lie became in the eye of the law C2 years of age the moment after midnight between the fourth and fifth days of April. (3 Corap. Dec, 581.) For other cases, see note to section 1457, Revised Statutes, "When retirement or ad- vancement on retired list takes effect." See also note to section 14-')8, Revised Statutes. Oflicer who reaches retirement age while his promotion is pending. — ^Whcre upon the retirement of a rear-admiral for age, a commodore next in line was nominated to be a rear-admiral to fill the vacancy, and before action thereon by the Senate the said commo- dore attained the age of 62 years and was retired under section 1444, Revised Statutes, as a commodore: Advised that, according to the law and usage of the service, the officer in this case was entitled by relation to be a rear- admiral from the date when the vacancy oc- curred , and to receive the pay of a rear-admiral from that date; and if the Senate should con- firm his nomination he might be commissioned as a rear-admiral and placed on the retired list as of that grade. (18 Op. Atty. Gen., 393; compare 25 Op. Atty Gen., 591, and 29 Op. Atty. Gen., 257, noted under sec. 1458, R. S., to effect that office does not vest until date of commission, notwithstanding that it is made to relate back for purposes of rank.) Where an officer accepts a recess promotion and thereafter becomes eligible for retirement by reason of age before the adjournment of Congress and before the appointment is acted upon by the Senate, he is entitled to be retired with the rank of his new appointment. (29 Op. Atty. Gen., 598; see also note to sec. 1457, R. S.) Retirement by special act made to relate back. — The words, "and to place him on the retired list of the Navy as of date June first, eigliteen hundred and ninety-five," in the special enactment of Congress for the relief of a former officer, must be construed to show the legislative intent to be that he was to be retired as "on attaining the age of sixty- two years," he having attained that age on May 30, 1895. (3 Comp. Dec, 706.) For other cases, see note to section 1457, Revised Statutes, "When retirement or ad- vancement on retired list takes effect." Appointment of ofllcer already past retiring age. — Where Congress, by special enactment, authorizes the appointment as an officer of a designated person who is already- past the retiring age, but says nothing in such enactment about placing him on the retired list, it must be held that the law relatmg to retirement for age has no application to his case. Should he ^ be physically incapacitated for active service he may be ordered before a retiring board in accordance with law. There are many precedents which show that when Congress has intended to authorize the appoint- ment of a civilian as an officer of the naval serv- ice, and immediately upon such appointment to transfer him to the retired list, it has not failed to express such intention in explicit language. In the present case Congress did not pro\'ide for the appointment of the civilian as a first lieutenant on the retired list of the Marine Corps, nor did it provide that he should be appointed on the active list and then re- tired, as has been the practice in similar cases when such was the intention, but, on the con- trar)', notwithstanding his age, Congress authorized his appointment as an officer on the active list of the Marine Corps "as an extra number, not iix the line of promotion," which language would have been unnecessary had his immediate retirement been in contemplation. (File 27231-52, May 16, 1913.) If the laws prescribing the age for retirement of Army ofiicers were held applicable to the volunteer service, the President would not have the right to appoint to an office in the volunteer service any one of the age of 64 or over. (22 Op. Atty. Gen., 199.) Where the law creates new offices in the naval service, and does not prescribe any age limit for appointment thereto, held, that a person other- wise qualified, but who had already passed the retiring age, is not eligible for appointment. The retirement laws fix the maximum age be- yond which no person may lawfully be ap- pointed to any office in the naval servdce without the specific authoritv of Congress. (File 11112-658, Nov. 15, 1916" Compare file 26255-54:7, July 15, 1912.) Age retirement held inappUcable to volunteer ofiicers. — The law fixing the age of retirement in the Army at 64 years was not intended to operate to restrict future eligibility to serve in an emergency, nor to limit the riglit of the President to appoint to a new volunteer service. The Army retired lists apply to the Regular Army alone, with due credit given for the time of volunteer service of officers of the Regular Army, and do not apply to a volunteer Army. A contrary view would lead to an un- reasonable consequence, such as the courts in construing legislation will reject, viz, that the President would not have the right to appoint to an office in the volimteer service anyone of the age of 64 years or over, and that an officer in the volunteer service, reaching the age of 64 years, without the continuous service contemplated by the retirement acts, and no matter how brief his period of duty, would be entitled to be retired. It is only necessary to state this position to refute it. (22 Op. Atty. Gen., 199.) Where the law fixes no age limit for officers in the Volunteer Army, it is competent for the President to appoint as a major general or brigadier general in the Volunteer Army a person above the age of 64 years. (22 Op. Atty. Gen., 176; affirmed 22 Op. Atty. Gen., 199.) Where the law fixes no age limit for officers in the Volunteer Army, an officer of the Regular Army, holding at the same time a commission as a general in the Volunteer Army, may con- tinue to hold and exercise his commission in the Volunteer Army after having been placed upon the retired list of the Regular Army by reason of the age limit. (22 Op. Atty. Gen., 176; affirmed 22 Op. Atty. Gen., 199.) Officer retired for incapacity and sub- sequently reaching retiring age. — Where the law provided for placing certain officers [Revenue Cutter Service] upon a "retired waiting orders list," when found by a retiring board to be incapacitated for active service, 592 The Navy. PL 2. REVISED STATUTES. Sec. 1446. and that "officers thus retired may be assigned to such duty as they may be able to perform," and further provided that when any officer ' ' has readied the age of sixty-four years he shall be retired by the President from active serv- ice," held, that an officer placed on the retired waiting orders list should, upon be- coming 64 years of age, be retired from active ser\'ice under the latter provision. (11 Comp. Dec, 612.) Sec. 1445. [Officers of certain ranks to be retired only for disability.] The two preceding sections shall not apply to any lieutenant-commander, lieutenant, master, ensign, midshipman, passed assistant surgeon, passed assistant paymaster, first assistant engineer, assistant surgeon, assistant pay- master, or second assistant engineer; and such officers shall not be placed upon the retired list, except on account of physical or mental disability. — (15 July, 1870, c. 295, s. 6, v. 16, p. 333.) Dental Corps retirements were not to be affected by provisions of this section, under a clause in the act of August 22, 1912 (37 Stat., 345), which act, in so far as it pertained to the Dental Corps, was superseded by act of August 29, 1916 (39 Stat., 573), the pro- visions of which latter act were in turn superseded by act of Julyl, 1918(40 Stat. 709), which also provided that section 1445, Revised Statutes, "shall not be applicable to dental officers." " First assistant engineer, " and "second assist- ant engineer," titles changed to passed assistant engineer and assistant engineer, and Engineer Corps afterwards abolished. (See note to sec. 1390, R. S.) Lieutenants and Lieutenant commanders, pro- vision for compulsory retirement of, to create vacancies, was made by act of March 3, 1S99, section 9 (30 Stat., lOOG), repealed by act of March 3, 1915 (38 Stat., 938). _ Lieutenant commanders, provision for retire- ment of, upon their own application, to create vacancies, was made by act of March 3, 1899, section 8 (30 Stat., 1006). Lieutenant commanders, provision for retire- ment of, upon becoming ineligible for pro- motion on account of age (45 years), was made by act of August 29, 1916 (39 Stat., 579), effective June 30, 1920. "Master" and "midshipman," titles changed to lieutenant (junior grade) and ensign. (See note to sec. 1362, _R. S._) Retirements on account of Usability. (See sec. 1448, R. S.) Temporary officers, appointed for service dur- ing war with Germany, not entitled to re- tirement except for physical disability in- curred in line of duty. (Act May 22, 1917, sec. 9, 40 Stat., 84.) "Physical incapacity" is defined as a condition, bodily or mental, which unfits at present, or is likely to unlit in the near future, the officer for the performance of his duties. (21 Op. Atty. Gen., 387, quoting Circular, War Department, Dec. 18, 1890, relating to ex- amination for promotion. See further, note to sec. 1448, R. S.) Midshipmen are retired for physical disability pursuant to special acts of Congress, and are given the rank of ensign on the retired list, these cases not being provided for by gen- eral statutes. See for example, act ]\Iarch 3, 1901 (31 Stat., 1792), in case of Frank B. Case; act March 4, 1907 (34 Stat., 1417), in case of Harold D. Childs; act January 5, 1909 (35 Stat., 585), in case of WilUam Parker Sedgwick; act February 13, 1911 (36 Stat., 899), in case of John M. Blankenship; and act March 3, 1911 (36 Stat., 1079), in case of William H. Walsh. The Navy Department is of the opinion that midshipmen who become disabled in line of duty while serving as officers at sea should have the benefit of the retirement laws in the same manner as other officers of the Navy, has recom- mended general legislation to that effect, and looks with favor upon the passage of a meas- ure for the retirement of a former midshipman under such circumstances. (File 6288-1, Jan. 14, 1907; file 26255-802, May 9, 1910; file 9066-1, Jan. 20, 1908.) IVIidshipmen are now commissioned as officers on graduation from the Naval Academy, instead of serving two years as midshipmen at sea after such graduation, as was formerly the case. See act of March 7, 1912 (37 Stat., 73). Sec. 1446. [Officers who have received a vote of thanks; retirement after fifty-five years' service. Obsolete.] This section provided as follows: "Sec. 1446. Officers on the active list, not below the grade of commander, who have, upon the recommendation of the President, received by name, during the war for the suppression of the rebellion, a vote of thanks of Congress for distinguished service, shall not be retired, ex- cept for cause, until they have been fifty-five years in the service of the United States." — (16 July, 1862, c. 183, s. 8, v. 12, p. 584.) It is rendered obsolete by having been fully executed, as there are no officers now on the active list of the Navy who are affected by its provisions. Civil War service. — Increased rank and pay on retirement of officers of the Na\y, with creditable records, who served during theCi^al War, was authorized by act of March 3, 1899, section 11 (30 Stat., 1007), act of June 29, 1906 (34 Stat., 554), and act of March 3, 1909(35 Stat., 753). Thanks of Congress, effect of. — See sections 1365, 1465, 1508-1510, Revised Stat- utes. 593 Sec. 1447. Pt. 2. REVISED STATUTES. The Navy. Officers who received thanks of Congress during Civil War. — The follo\\iiig ollicers rec-eived the thanks of Congress by name: Capt. Samuel F. Dupont, February 22, 1862 (12 Stat., 613). Capt. A. H. Foote, March 19, 1862 (12 Stat., 616). Capt. Louis j\I. Goldsborough, July 11, 1862 (12 Stat., 621). Lieut. J. L. Worden, July 11, 1862 (12 Stat., 622). Capt. David G. Farragut, July 11, 1862 (12 Stat., 622). Capt. Andrew H. Foote, July 16, 1862 (12 Stat., 626). Commodore Charles Hemy Davis, February 7, 1863 (18 Stat., 823). Commander John L. Worden, February 3, 1863 (12 Stat., 823). Capt. John A. Dahlgren, February 7, 1863 (12 Stat., 824). Capt. Stephen C. Rowan, February 7, 1863 (12 Stat., 824). Commander David D. Porter, February 7, 1863 (12 Stat., 824). Rear Admiral Silas H. Stringham, February 7, 1863 (12 Stat., 824). Capt. John Rodgers, December 3, 1863 (13 Stat., 399). Commodore Cadwalader Ringgold, March 7, 1864 (13 Stat., 403). Admiral David D. Porter, April 19, 1864 (13 Stat., 404). Capt. John A. Winslow, December 20, 1864 (13 Stat., 505). Lieut. William B. Cushing, December 20, 1864 (13 Stat., 565). Rear Admiral David D. Porter, January 24, 1865 (13 Stat., 566). Vice Admiral David G. Farragut, February 10, 1806 (14 Stat., 349). What time counted as "service" in the Navy. — See 13 Op. Atty. Gen., 33, noted under section 1443, Revised Statutes, Sec. 1447. [Retirement of officers not recommended for promotion.] Wlien the case of any officer has been acted upon by a board of naval surgeons and an examining board for promotion, as provided in Chapter Four of this Title, and he shaU not have been recommended for promotion by both of the said boards, he shall be placed upon the retired list. — (21 April, 1864, c. 63, s. 4, v. 13, po 53.) Captains, commanders, and lieutenant com- manders who fail professionally shall there- after be ineligible for promotion; if they fail physically they shall not be considered , in the event of retirement, entitled to the rank of the next higher grade. (Act Aug. 29, 1916, 39 Stat. 579.) "Chapter Four of this Title," refers to sections 1466-1510, Revised Statutes. Officers not to be retired for misconduct. (Sec. 1456, R. S.) Officers examined for promotion and found unfit to perform duties at sea, by reason of drunkenness or other misconduct, shall not be retired but shall be discharged with not more than one year's pay. (Act Aug. 5, 1882, 22 Stat., 286; see note to sec. 1456, R. S.) Oflicers failing physically upon examination for_ promotion, to have increased rank on retirement, in certain cases. (Act Mar. 4, 1911, 36 Stat., 1267; amended by act Aug. 29, 1916, 39 Stat., 579.) Officers below gi-ade of commander failing pro- fessionally upon examination for promo- tion, to be suspended from promotion for six months, then reexamined and if found not qualified upon reexamination, to be dropped from the service. (Sec. 1505, R. S., as amended by act Mar. 11, 1912, 37 Stat., 73; but see act Aug. 29, 1916, 39 Stat., 579, noted above, as to professional failure of lieutenant commanders.) Officers may be retired, on account of failing to be recommended for promotion, without appearing before a retiring board. (See sec. 1455, R. S.) Physical or mental disability only ground for retirement of certain officers. (See sec. 1445, R. S., and note thereto.) Staff officers: " Hereafter all laws relating to the examination of officers of the Navy for promotion shall be construed to apply to the regular advancement of staff offi- cers to higher ranks on the active list the same as though such advancements in rank were promotions to higher grades: Pro- vided, That examinations of such staff offi- cers shall not be required except for such regular advancements in rank." (Act May 22, 1917, sec. 20, 40 Stat., 89.) This section applicable only to officers above the grade of lieutenant com- mander. — The act of April 21, 1864, was the first act requiring examinations generally prior to promotion. The failm'e on such examination resulted in retirement, and this applied to all grades below that of commodore. The depart- ment's construction of the statute was that failure upon either examination was a proper cause for retirement. This procedure con- tinued until 1870, when by the act of July 15 of that year (now sec. 1505, R. S.), there was substituted for retirement in certain cases a provision for suspension from promotion of officers below the grade of commander who failed professionally upon examination. Re- tirement upon professional failure for promo- tion, which theretofore had applied to all grades, thereafter apphed only to the cases of officers of the grades of commander and cap- tain. (File 26260-874, June 3, 1910; compare act Aug. 29, 1916, 39 Stat., 579, as to line officers of and above the grade of lieutenant 594 The Navy. Pt. 2. REVISED STATUTES. Sec. 1447. commander who are not recommended for pro- motion.) An officer of the rank of commander was examined for promotion and found physically, mentally, and morally, but not professionally, qualified; recommended for promotion by the medical board, but not so recommended by the naval examining board. Section 1496, Re- vised Statutes, prohibits promotion of officers below the rank of commodore (now rear ad- miral) until found mentally, morally, and pro- fessionally qualified by a board of examiners. The penalty for professional failure is fixed by section 1505, Revised Statutes, which applies only to officers below the grade of commander; that section does not apply to present case, as the officer is in the grade of commander, and not below it. Question presented, What dis- position should be made of this case? Section 1447, Revised Statutes, provides for retirement of officer not recommended for promotion. In general, under section 1456, Revised Statutes, and the act of August 5, 1882, misconduct is not a ground for retirement. This officer's record does not show that he is accused of anything of that nature ; he would not, there- fore, be subject to discharge on that ground, which could only follow as the result of a find- ing of moral disqualification, nor would he be subject to dismissal by a court-martial. It would appear, then, that he can not be dis- missed, discharged, suspended, or promoted, nor can he be retired, unless imder the pro- visions of section 1447. He can not, moreover, be retained at the top of the list of commanders until such time as he may be able to qualify, because of the requirements of section 1458, Revised Statutes, and yet, although the senior officer, he can not be advanced as he has not qualified therefor. The only alternative is to apply the provisions of sections 1496 and 1447, Revised Statutes. Advised, accordingly, that this officer should be retired under the pro^'i- sions of section 1447, Revised Statutes. (File 26260-874, June 3, 1910. This case was dis- posed of by the voluntary retirement of the officer concerned in accordance with sec. 8 of the Navy personnel act approved Mar. 3, 1899, 30 Stat., 1006.) Action of both boards essential before retirement under this section. — The act of April 21, 1864, section 4, chapter 63 [now em- bodied in section 1447, Revised Statutes], pro- vides that "all officers whose cases shall have been acted upon by the aforesaid boards and who shall not have been recommended for promotion by both of them, shall be placed upon the retired list." This section plainly contemplates and requires that there shall have been an examina- tion by two boards, and that both shall have failed to recommend an officer for promotion be- fore, in the language of the act, he "shall be placed upon the retired list." One of these boards is a board of naval surgeons, the other is "a board of examining officers, to be appointed by thePresidentof theUnited States." Before, therefore, a medical officer of the Navy is placed on the retired list under the provisions of this act, it should appear that his case has been actod upon by two boards, one of them a board of naval surgeons who passed upon his physical qualifications to perform all his duties at sea, the other a board of examining officers senior in rank to him, and appointed by the President, who considered his mental, moral, and pro- fessional fitness to perform his duties at sea, and further it should appear that he was not recommended for promotion by both of such boards. If the fact be that but one board, a board of naval surgeons, has acted upon the cases of certain medical officers, it is not the duty of the department to place them on the retired list. (11 Op. Atty. Gen., 105; see also 12 Op. Atty. Gen., 347.) Unfavorable report by one board su£B.- cient for retirement. — If the finding of either board is unfavorable, the statute is per- emptory that the officer shall be placed on the retired list. The statute leaves the President no discretion. (Thompson v. U. S., 18 Ct. Cls., 604, 611.) An officer passed the examination by the board of surgeons and failed to pass the pro- fessional examination. The President ap- proved the finding and placed the officer on the retired list. Having approved the finding, he could not do otherwise than place him there. (Thompson v. U. S., 18 Ct. Cls., 604, 611; see also Da\'is v. U, S., 24 Ct. Cls., 442, noted be- low, under ' ' Officer not mentally, morally, and professionally qualified . " ) The Attorney General, in 11 Op. Atty. Gen., 105, construed the law embodied in this section as requiring, before the retirement of an officer thereunder, that both the examining board and the medical board shall have reported adversely iipon the candidate's qualifications. However, an examination of the records of officers retired both before and after the date of the Attorney General's opinion discloses that if an officer was found physically, but not professionally, mentally, or morally, qualified and consequently not recommended for promo- tion by the board of examiners, he was placed on the retired list (citing cases of Commodores Ellison, Lockwood, Totten, Glasson; Com- manders Arnold, E. W. Henry, Wm. Gibson, Beaumont; Ensign F. H. Parker; Asst. Pay- master C. E. Boggs; also Capt. T. G. Corbin, Commander E. E. Stone, and Capt. Egbert Thompson). Further, in the cases of officers who were found not physically qualified for promotion, they have been retired under the pro\dsions of section 4 of the act of April 21, 1864 (now sec. 1447, R. S.), (citing cases of Capt. Baldwin and Brasher, and Lieut. Commander F. H. Sheppard). Thus the department's practice both before and after the Attorney General's opinion was to retire officers under the act of 1864 when they had been found not qualified by either, and not necessarily by both, boards. (File 26260-874, June 3, 1910.) The language of the Court of Claims in the case of Capt. Thompson (18 Ct. Cls., 604, 611) is at variance with that used by the Attorney General, as the court says that ' ' if the finding of either board is unfavorable, the provision in section 4 is peremptory that the officer shall be placed on the retired list." (File 26260-874, June 3, 1910.) A commander in the Na\'y who qualified physically, as -n^ll as mentally and morally, but failed professionally, and was not, there- fore, recommended for promotion by the ex- 695 Sec. 1447. Pt.2. REVISED STATUTES. The Navy. aniining board, although so recommended by the meilical board, shoidd be retired under the proNisions of section 1447, Revised Statutes. (File 20260-874, June 3, 1910. Compare file 262t)0-l:W2. June 29, 1911, page 5, in Avhich it was remarked that, "if the candidate were found by both the medical and examining boards to be not qualified for promotion, under section 1447 of the Revised Statutes he was to be placed on the retired list.") [See in this con- nection section 1455, Revised Statutes, which refers to the retirement of an officer ' ' on account of his failure to be recommended by an examining board for promotion."] Irregularity in proceedings cannot be remedied by courts. — If all the steps taken in the proceedings resulting in the retirement of an officer under this section were not in order and warranted by the statute, the Court of Claims would have no power to review them. (Thompson v. V. S., 18 Ct. Cls., 604, 611.) President may revoke approval and Bet aside proceedings for irregularity. — A naval officer ha\'ing appeared before an examining board, organized and conducted under sections 1493-1505, Revised Statutes, and the examination being temporarily suspended, was granted permission to go home and to be absent until notified by the board to appear. He failed to receive this notice until after the examination, which was resumed during his absence, had been concluded. The proceed- ings and findings of the board were approved by the President and his order in the case duly executed by the retirement of the officer under this section, but the vacancy created by such retirement was not filled, and no rights of any other person intervened: Held, that the act of the President could be revoked and the ofiicer allowed a rehearing. (16 Op. Atty. Gen., 20.) An officer having been examined by a board of naval surgeons, and placed on the retired list by the Secretary of the Navy, upon the failure of that board to recommend him for promotion, but not having been examined by an "examining board for j)romotion," as required by the law prior to promotion, held, that the President possesses supervisory action over the report of the board of naval surgeons, and may approve or disapprove same, notwithstanding the action of the Secretary of the Navy. (12 Op. Atty. Gen., 347.) Where the President possesses the power of review, he has the power as a necessary inci- dent to the right of review, if he finds that an officer has not had such an examination as the law declares he shall have, or, in other words, if the proceedings are fatally defective, to treat the proceedings of the board as a nullity and direct an examination in accordance with law. (27 Op. Atty. Gen., 193, 201; see also 27 Op. Atty. Gen., 251. \Vhere an officer was found by a board of examination to be physically qualified for promotion, but deficient in professional quali- fications, and it afterwards developed that he was, at the time of his examination, suffering from a disability incurred in the line of duty which disqualified him for -promotion, it is within the power of the Secretary of War, rep- resenting the President, to order a new physical examination. (27 Op. Atty. Gen., 193.) Difference between examining board for promotion and retiring board. — See 21 Op. Atty. Gen., 385, noted under section 1448, "Physical examination for promotion not sufficient for retirement." Retirement completed by appoint- ment of successor. — The act of placing an officer on the retired list under this section created a vacancy, which the statute [section 1458, Revised Statutes] required the President to fill. In obedience to the mandate of the stat- ute, the President nominated to the Senate the ranking commander for promotion to the cap- taincy on the active list thus made vacant; the Senate gaveits constitutional assent thereto, and upon his appointment the new appointee from that moment became one of the limited number of captains authorized by law to be on the active list of the Navy, and his predecessor became one of the captains authorized by law to be on the retired list of the Navy. (Thompson v. U. S., 18 Ct. Cls., 604, 612, citing Blake's Case, 103 U. S., 227, noted under the Constitution, Art. II, sec. 2, clause 2, under "VIII. Power of Removal * * * Power of President and Senate.") Oflicer can not be restored to active list by President. — See note to section 1465, Revised Statutes. Officer not mentally, morally, and pro- fessionally qualified. — ^An officer was found by a retiring board "incapacitated from active service," and such incapacity was "not the result of an incident of the service." He was ordered before another retiring board, which found him not incapacitated for active service. Thereupon he was ordered before an examining board for promotion. This board reported that he had "not the mental, moral, and pro- fessional qualifications to perform efficiently all the duties of a naval officer in a higher grade, and we do not recommend him for promotion." The President approved the proceedings and findings of the examining board, and he was thereupon retired from active service. Held, that the officer was not entitled to a reexamina- tion under section 1505, Revised Statutes, after a period of suspension, but was legally retired as not recommended for promotion. (Davis v. U. S., 24 Ct. Cls., 442. But see note to sec. 1456, R. S.) Examining board is quasi judicial. — The examining board whose failure to recommend for promotion causes retirement is "quasi judicial." (Thompson v. U. S., 18 Ct. Cls., 604, 615.) Approval of President required. — The conclusions of any military comt, board, or commission must, before being carried into execution, have the approval of the commander in chief or some one representing him . Accord- ingly, although the law in a particular case may not expressly provide for approval of examining boards in the Army, such boards must receive the approval of the Secretary of War, whose action is conclusively presumed to be that of the President, in order to be valid and effective. It is not, however, essential that this approval should be express or indi- 596 The Navy. PL 2. REVISED STATUTES. Sec. 1447. cated in any formal language. It may be indicated by merely giving effect through ap- propriate orders to the findings of the board. (27 Op. Atty. Gen., 193; see also sec. 1502, K. S, and Jouett v. U. S., 28 Ct.Cls.,266.)_ Although the law embodied in this section did not expressly provide for approval by the President of the report made by the board of naval surgeons, he has a supervisory power over the action of such Ijoard and may approve or disapprove same notwithstanding the action taken in the case by the Secretary of the Navy. (12 Op. Atty. Gen., 347.) Pay of officer retired because not recom- mended for promotion. — An officer retired because not recommended for promotion, as pro- ^dded by this section, is entitled to half pay, as provided by section 1588, Revised Statutes. (McChu-e V. U. S., 18 Ct. Cls., 347; file 26260- 874, June 3, 1910; but see case of Lieut. Frank W. Nichols, noted under sec. 1448, R. S., "Physical examination for promotion not sufficient for retirement.") Retirement of officer foiind not morally qualified for promotion. — In the case of Pay Inspector John H. Stevenson, the exam- ining board for promotion reported as follows: "We are satisfied as to the professional abilities of the candidate. His methods of business are shown by the e^'idence to have been loose, reckless, regardless of law, and defiant of orders, but we believe his conduct is not shown to have been influenced by a desire for personal profit, but that, from mental peculiarities or temperament, his moral sense of the obligations of law, orders, and regulations is so obtunded as to render him unfit to conduct the important duties which pertain to the grade in the Navy to which he is a candidate for promotion. In this sense we consider him, as stated below, morally unfit for promotion. We therefore decide that the professional fitness of the candidate to perform the duties of a naval officer at sea and on shore in the next higher grade has been established, but not the mental and moral fitness, and we therefore do not recommend him for promotion." In this case, the Judge Advocate General, in his report to the Secretary of the Navy, Septem- ber 11, 1893, stated in part: "The vital ques- tion, therefore, is as to whether or not the disqualifying cause in the case of Mr. Stevenson is a cause ' arising from his own misconduct. ' I am of opinion that such cannot properly be said to be the case, and that, inasmuch as Mr. Stevenson has been found to be both mentally and morally incapacitated, his moral disqualification being the result of his mental incapacity , the state of his mind may properly be considered to be diseased, and, therefore, that the case does not come under the provi- sions of the act of August 5, 1882 [noted under section 1456, Revised Statutes.]. * * * lam of opinion that the provisions of this section [1457, Revised Statutes] properly cover the case of Pay Inspector Stevenson. If retired in ac- cordance therewith, he will receive one-half of the sea pay at the time of his retirement (S2,200) as prescribed by section 1588 of the Revised Statutes." The Secretary of the Navy, in his report to the President, September 12, 1893, stated in part: " It will be observed that this finding is peculiar. The decision is substantially and formally sufficient. It is that the candidate does not possess the mental and moral fitness required for promotion; the reasons given, however, are that 'from mental peculiarities or temperament his moral sense of the obligations of law, orders, and regulations, is so obtunded as to render him unfit to conduct the important duties which pertain to the grade in the Navy to which he is a candidate for promotion.' Carrying out what seems to be the obvious purpose of this finding, the president of the board, Commodore J. G. Walker, on behalf of the board, called upon me and requested that I should convey to you the wish of the board that Mr. Stevenson should be retired under section 1447 of the Revised Statutes, and not dismissed imder the law of 1882. This request appears to be entirely proper, but the board having found the candidate morally unfit, the question as to whether he should be retired or dismissed seems to be one entii'ely for the decision of the President. The finding of the board is, however, undoubtedly the basis upon which your decision is to be founded. You would not have, as I conceive, the right either to retire or dismiss, unless the board had previously found the unfitness of the candidate. It will be seen from the opinion of the Judge Advocate General of the Navy that he recom- mends the retiring of the candidate upon half pay. and he cites a precedent. I am not in- clined to agree with that opinion, when the board finds that from mental peculiarities or temperament the candidate's moral sense of the obligations of law is so obtunded as to render him unfit for promotion. This seems to be setting up the doctrine of moral insanity, which, as I understand it, the courts have refused to accept as a defense to a criminal charge. * * * Now if it be true that in cases of this character the biu"den of proof is upon a candidate to establish his mental and moral fitness, and if, in this particular case, moral unfitness has been established, then it seems to me that the burden is also upon the candidate to establish that his moral unfitness is not the result of his own misconduct. Can one be morally unfit to perform the duties of an officer and yet not be responsible for such moral unfitness? If a coui't of law in a criminal case would be bound to hold that he is responsi- ble for any conduct arising from such moral obliquity, could it be contended that he is not responsible for the state of moral obliquity into which he has fallen? I fail to see how such a conclusion could be reached and therefore have to recommend that as the candidate has been shown to be morally unfit for promotion he ought to be dismissed under the law of 1882. The precedent cited by the Judge Advocate General seems to be nearly in point. Without undertaking, however, to distinguish between this case and that, it seems to me sufficient to say that such a precedent, if it has been estab- lished, ought not to be followed. It is certainly contrary to the spirit of the law of 1882, as well as to what seems to be sound policy, to lay down as a rule that an officer who is morally unfit for promotion is nevertheless entitled to be paid by the Government as an officer of the Navy 597 Sec. 1448. Pt. 2. REVISED STATUTES. The Navy. durinc: the remainder of his natural life. From my readiiiii; of the two statutes on this subject of retirement, above cited, I am of opinion that the theory upon which Congress legislated was that officers who, without fault of their own , were found unfit to continue in active service ought to be provided for by the Government which they faithfully served up to the time of their retirement. I cannot believe that Con- 'gress ever intended to continue in the pay of the Government those who are shown to be morally unfit to serve that Government. There is no principle of public policy that could justify such legislation, and I submit the word- ing of the statute does not warrant the conclu- sion that Congress ever intended any such result." The President's action in the above case, September 25, 1893, was as follows: "The record, proceedings, and findings of the exam- ining board in the case of Pay Inspector John H. Stevenson, a candidate for promotion, are hereby approved and the said John H. Stevenson is ordered to be placed upon the retired list pursuant to the provisions of section 1447 of the Revised Statutes. The retirement of this applicant for promotion is based upon the peculiar findings of the examining board and the exceptional circumstances surrounding the case. The determination reached must not be regarded as a precedent for any similar case that may hereafter arise." Compare cases noted under section 1456, Revised Statutes; see also note to section 1448, Revised Statutes. Sec. 1448. [Retiring board.] Whenever any officer, on being ordered to per- form the duties appropriate to his commission, reports himself unable to com- ply with such order, or whenever, in the judgment of the President, an officer is incapacitated to perform the duties of his office, the President, at his discre- tion, may direct the Secretary of the Navy to refer the case of such officer to a board of not more than nine nor less than five commissioned officers, two- fifths of whom shall be members of the Medical Corps of the Navy. Said board, except the officers taken from the Medical Corps, shall be composed, as far as may be, of seniors in rank to the officer whose disability is inquired of. — (3 Aug., 1861, c. 42, s. 23, v. 12, p. 291.) Acting assistant surgeons not eligible for retire- ment under the provisions of this section. (See note to sec. 1411, R. S.) For citation of laws relating to retirement of specific classes of officers, see notes to sections 1443 and 1445, Revised Statutes; and see note below, "Retirement of war- rant officers." Officers not to be retired without hearing before retiring board, except in certain cases. (See sec. 1455, R. S.) Officers not to be retired for misconduct. (See sec. 1456, R. S.) Secretary of the Navy may empower com- manding officers on foreign stations to convene retiring boards. (Act Mar. 4, 1917, 39 Stat., 1171.) "Physical incapacity" is defined as a condition, bodily or mental, which unfits at present, or is Likely to unfit in the near future, the officer for the performance of his duties. (21 Op. Atty. Gen., 387, quoting Circular, War Department, Dec. 18, 1890, relating to ex- aminations for promotion; see also sec. 1445, R. S., relating to retirement for "physical or mental" disability.) An oflScer is "permanently incapac- itated" when his disability appears to be chronic or of indefinite future duration; his disability is designated as "permanent," just as an innkeeper distinguishes between "per- manent" from the transients among his guests. (21 Op. Atty. Gen., 286.) Officer must be altogether incapable of performing his duties, and not merely incapable of performing them weU. — The incapacity to discharge his duties contemplated by the statute [Army retirement law] is not an incapacity to discharge them as well as they ought, theoretically, to be discharged or as well as they are discharged by officers generally of the same rank and intrusted with similar duties. The law does not say that he must be incapable of performing his duties well but that he must be incapable of performing them at all, or in other words, he must be unable to so perform them as to reasonably fulfill the purpose of his employment. (27 Op. Atty. Gen., 14.) Peculiar mental temperament sufficient basis for retirement. — An officer of the Navy was retired by the President upon the following finding of a retiring board : " 1st. That in their judgment the physical condition of Paymaster Robert Burton Rodney is good, but that his peculiar mental tempera- ment incapacitates him from active service in the Navy of the United States. "2d. That said temperament of Paymaster Rodney, according to the evidence laid before the board, develops itself in an entire disre- gard of the laws, regulations, customs, and pro- prieties of the service, and has been manifested persistently while said Rodney was attached to the North Atlantic Fleet, in language and con- duct to the subversion of good order and dis- cipline, and proceeds, in the opinion of the board, in part from fanaticism and in part from the groundless belief that he is a victim of per- secution. " In the judgment of the board, the inca- pacity of Paymaster Robert Burton Rodney results neither from long and faithful service, from wounds or injury received in the line of duty, from sickness or exposure, or from any other incident of service. 698 The Navy. Ft. 2. REWSED STATUTES. Sec. 1448. "The board are impressed with the belief that the tendency to misconduct under which Mr. Rodney labors will be re^'ived whenever his association with the Navy shall be renewed. " The board are unable to trace the mental incompetency of Pajinaster Rodney to any special cause, but believe it to be inherent, and therefore can only recommend that he be removed from the active list of officers of the Navy." The sole objection iirged by Paymaster Rodney against the validity of his retirement iipon the above finding is that it was in \T.ola- tion of the sixth section of the act of July 15, 1870, chapter 295 [section 1456, Revised Stat- utes], which forbids the retirement of an officer "because of misconduct." The above finding of the board does not ground the incapacity for active ser\-ice upon misconduct, but upon the peculiarity of his mental temperament. His language and con- duct, etc., appear to be assigned only as facts and circumstances indicative of mental con- dition. The circumstances alluded to are a]> parently set forth by the board only as outward manifestations of such temperament. This peculiarity of temperament is described in the last paragraph of the finding as "mental in- competency." The Preadent having concurred in the find- ing of the board and thereupon directed the re- tirement of Paymaster Rodney from acti-\-e service, the latter must be deemed to have been placed on the retii-ed list, not because of mis- conduct, but because of incapacity for active service arising from the peculiarity of his men- tal temperament or inherent mental incom- petency, as found by the board. The act of August 3, 1861, section 23, chapter 42 [now embodied in section 1448, Re\dsed Statutes], provides that whenever in the judg- ment of the President an officer of the Nai-y shall be "in any way," incapacitated from per- forming the duties of his office, etc. The offi- cer's retirement was, upon the facts stated, validlv made under this section. (15 Op. Atty. Gen., 446.) An officer of the Navy having been retired for a peculiar mental temperament which in- capacitated him for properly performing duties on the active list, the findings of the retiring board are not subject tore\iew by the account- ing officers, and his retirement was authorized by law. (Dig. Comp. Dec, 493.) Compare note to section 1447, Revised Stat- utes, "Retirement of officer found not morally qualified for promotion." Temperamental uniitness m.u8t am.ount to actual incapacity or retirement not authorized. — ^The retirement laws, while making no attempt to fix a standard of official usefulness, sound judgment, discretion, or good sense, good habits, agreeableness, good manners, self-control, or courtesy, make one criterion, and one only, for the compulsory retirement of an officer, namely, that he has become incapable of performing the duties of his office. All other subjects of criticism in an officer must be either dealt with in a dis- ciplinary way, or borne with as unfortunate incidents of the service due to imperfect human nature. (27 Op. Atty. Gen., 162, afiirming 27 Op. Atty. Gen., 14.) Retiring boards have nothing to do with such considerations as that the officer would, by seniority, soon become due for promotion, which would place him in a position where his infirmities of temper, disposition, and other- wise, would be of great detriment to the service. Objections to the promotion of an officer con- stitute no ground for retiring him from the office he now holds, unless resulting in the in- capacity contemplated by the law. (27 Op. Atty. Gen., 162, affirming 27 Op. Atty. Gen., 14; compare sec. 1447, R. S.) Question presented whether an officer of the Army may be retired when found by retiring board to be "permanently incapable of per- forming the duties of his office, such incapacity being temperamental in character, and the re- sult of the operation of * * * mental bias or oversensiti-\-eness of such degree and charac- ter as to render an officer incompetent to ex- ercise sound judgment or discretion, and as to create a marked tendency toward unjustifiably questioning the justice or motives of the acts of his superior officers touching himself person- ally, sometimes carried to an extent bordering on chronic insubordinarion; marked lack of capacity to entertain sound views as to his re- lations and obligations to other persons in the military' service, resulting in a quarrelsome, hypercritical, and querulous disposition." Held, that an important distinction must be observed between actual incapacity and the cause or causes wMch produced it. No officer can be compulsorily retired under these sec- tions [1245-1252, R. S., relating to the Army] because of any or all of the infirmities peculi- arities, or characteristics mentioned. He may have all of these and yet be capable of perform- ing his official duties if he desires to do so; and the law has not said that he may be retired for any of these. But if from these or from any other causes, he has become incapable of per- forming the duties of his office, he may be re- tii-ed for that, but not for the causes which produced the incapacity. (27 Op. Atty Gen., 162.) An officer of the Army was found by a retiring board to be "incapable of performing the duties of his office," such incapacity being the result of "iniirniity of temper, of a graduafbut serious loss of self-control, of impatience or irritability while exercising the functions of his office and in dealing with the officers and enlisted men in his command, of physical or mental deteriora- tion due to indolence, excesses in eating and drinking, to impairment of \T.gor, or to indeci- sion and want of alertness in the performance of the duties with which he is habitually charged by law and regulations." Held, that a person ha\ing the infirmities of temper and the mental and bodily characteristics described, might readily be a veiy imdesii-able superior, colleague, or subordinate, and might severely tax the patience of other members of the serv- ice necessarily brought into contact with him in the discharge of "their military duties, but it would not follow from these facta that he was incapable of discharging his duties. A more reasonable inference would be, perhaps, that 699 Sec. 1448. Pt.2. REVISED STATUTES. The Navy. he was unwilling to discharge them properly, and therefore that he was a suitable subject for the appropriate military discipline. Of course, if a process of mental deterioration, due to the causes above-mentioned, had culminated in a mild form of insanity or if excessive self-indul- gence and disregard of the laws of health have produced such maladies as make it impossible for the officer properly to discharge his duties, the incapacity justifying his retirement would exist and the causes leading to such incapacity would be immaterial [compare, section 1456, Revised Statutes]; but except in so extreme a case, the officer midit have all the infirmities and un- desirable nabits mentioned, and yet not be incapable of dischai-ging his duties in the sense contemplated by the law as justifying his retirement. (27 Op. Atty. Gen., 17.) An officer of the ;Marine Corps was ioxmd "incapacitated for active service by reason of excessive nervous irritability, and that his incapacity is the result of an incident of the ser^•ice." The finding of the board was disap- proved by the President, upon recommendation of the Secretary of the Navy, who stated: "The report of the board does not show a finding of insanity or even of neurasthenia, but refers to this officer as incapacitated by reason of 'ex- cessive nervous ii-ritability.' There is no evi- dence in the record of any specific injury. The department considers that the retii'ement of so young an officer in the line of duty for the reason given by the board in this case would be an abuse of the liberal retii-ement privileges which Congress intended primarily for those either injured in the line of duty or w^ho, by reason of long and faithful service, are entitled to especial consideration." (File 26253-256, Jan. 9, 1913. As to retirement of Marine offi- cers, see sec. 1622, R. S.) Actual incapacity only test; cause not important except incidentally. — The grounds for compulsory retirement should be confined to cases of actual inability to perform the duties of the office, no matter what the cause of the inability. (27 Op. Atty. Gen., 162.) It is with the actual incapacity of the officer that these sections [1245-1252, Revised Stat- utes, relating to Army] deal, and not with its cause or causes, except in determining what shall be done in case the officer is found incapacitated. (27 Op. Atty. Gen., 162.) An officer, found by a retiring^ board duly organized and convened to be "incapable of performing the duties of his office, ' ' may be and ought to be retired in accordance wdth the pro- visions of sections 1245-1252, ReAdsed Statutes, without regard to the causes which may have led to eucn incapacity on his part; but to be "incapable " in the language of the law he must be either no longer responsible for his own actions or subject to infirmities or disabilities which make the reasonable fulfillment of his military duties impossible for him, notwith- standing an earnest desire and firm pm-pose on his part to fully discharge them. (27 Op. Atty. Gen., 14.) An officer of the Army could not be legally retired under the provisions of law because he frequently or even habitually became intoxi- cated, although such intoxication might, while it lasted, incapacitate him to discharge his duties; instead, he would be properly subject to the pimishment prescribed by military law as administered by coiu"ts-martial. If, how- ever, as a result of such excess, his bodily and mental faculties had become seriously and per- manently impaired, then, even if the habits of intemperance had ceased, he would be properly subject to retii-ement under the pro\T.sions of section 1252, Revised Statutes. (27 Op. Atty. Gen., 14.) It has been held by the War Department that an oflicer may legally be retired by reason of an incapacity resulting from habitual drunkenness; that the law contemplated an existing and not a piirely prospective and contingent incapacity; and that an inquiry into an officer's general efficiency could be pertinent only in so far as it could be regarded as going to show that his inef- ficiency, if found, was the result of an impair- ment of health; that the cause of incapacity intended in section 1249, Re\ised Statutes, was a physical cause, that moral obliquity was not had in view, and that the matter of financial integrity of the officer was beyond the jurisdic- tion of the board; accordingly, that the board was not authorized to recommend the retire- ment of an officer because he did not pay his debts; and that the inability of a disbursing officer to furnish a bond when duly required to do so was not sufficient ground for his retire- ment. These opinions of the War Department are consistent with the principles which must determine when an officer is incapable of per- forming the duties of his office within the mean- ing of the retiring law. (27 Op. Atty. Gen., 14.) Composition of board. — The intent of the act is to cause disabled officers to be retired by a board composed of commissioned officers of their own branch of the service. The clause which requires that the board, except those taken from the medical staff, shall be composed as far as may be, of officers "senior in rank "' to the officer whose disability is to be tried, im- plies that the board is to consist of commissioned officers in his own line of service; for an officer of one branch of service can not with accuracy be called senior in rank to an officer of another branch. A major in the Army is no more senior to a captain of Marines than he is to a captain in the Navy. The term in its military sense is applicable only to relatively higher grades of the same service, and its use othei-wise would create confusion. (10 Op. Atty. Gen., 116, holding that the act of Aug. 3, 1861, sec. 17, chap. 42, does not authorize the Secretary of War or the Secretary of the Navy to assemble a mixed board of Army and Marine officers for inquiry into the cases of disabled officers of the Army and of the Marine Corps; that the Marine Corps is at all times subject to the laws and reg- ulations established for the better government of the Navy, except when detached for service with the Army; and, accordingly, that the medical officers of any board assembled by the Secretary of the Navy to inquire into the cases of disabled Marine officers must be taken from the surgeons of the Navy. See sec. 1623, R. S., as to composition of retiring boards for Marine officers; and see in this connection Brown v. U. S., 41 Ct. Cls., 275, affirmed 206 U. S., 240.) 600 The Navy. Ft. 2. REVISED STATUTES. Sec. 1448. Officer to be ordered before retiring board immediately upon development of incapacity. — ''When any officer on the active list becomes physically incapacitated to per- form the duties of his office, and the probable fiiture duration of such incapacity is permanent or indefinite, he will immediately be ordered before a retiring board, and, pending final action upon the question of his retirement, will not be examined for promotion. The fore- going shall not apply to the case of an officer whose physical incapacity develops after he has become due for promotion, and who may, under such circumstances, be examined phys- ically by a board of medical examiners before being ordered before a retiring board. ' ' (Naval Courts and Boards, 1917, sec. 679, superseding Art. R-331 (5), Navy Regs., 1913, C. N. R. 7, Sept. 15, 1916.) Physical examination for promotion not sufficient for retirement. — An officer of the Army was examined for promotion and found incapacitated for active service on ac- count of certain physical disabilities; this finding was approved by the Surgeon General and by the Major General Commanding the Army, and by the Acting Secretary of War. The officer was thereupon notified that he would be retired at the proper time, and was granted sick leave of absence until further orders. Thereafter he applied for reexamina- tion, and the action of the Acting Secretary of War approving the finding of the examining board was canceled by the Secretary of War. It was contended that the examination when approved by the Acting Secretary of War be- came final and conclusive, and that no power or authority existed in the Secretary of W^ar to direct or permit a reexamination, as the act of October 1, 1890 (26 Stat., 562), provides with reference to the examination of Army officers for promotion "that should an officer fail in his physical examination and be found inca- pacitated for service by reason of physical dis- ability contracted in line of duty, he shall be retired with the rank to which his seniority entitled him to be promoted." Held, this act was not intended to provide for the retirement of offi- cers from the Army, but merely to fix the rank of officers and regulate promotions. The phrase italicized plainly is not a mandatory provision for the retirement of the disabled officer, but for the purpose of fixing the rank with which he should be retired. (21 Op. Atty. Gen., 385.) Under the laws [sections 1250, 1251] regulating retirements in the Army, no officer can be retired from the Army upon the report of any board, even if such report be approved by the Secretary of War, except it '"is approved by the President." (21 Op. Atty. Gen., 385.) It is true that the physical examination of an officer who is under examination for promo- tion may be the same in its character and extent as the physical examination of an officer who is under examination for retirement. Nevertheless, a board constituted as a board of examination for promotion can not be invested with the power of a retiring board, which the law requires to be differently constituted. (21 Op. Atty. Gen., 385.) The physical examination to which the officer was subjected in the above-mentioned case was not such an examination as required by law for the retirement of an officer from active service; and he may be allowed a re- examination bv the Secretarv of War. (21 Op. Atty. Gen., 385.) The officer was notified that he would be retired at the proper time; but he could not be retired without the approval of the Presi- dent; and even if the action of the examining board were to be regarded and treated as that of a retiring board, still it would be inoperative to effect his retirement until approved by the President. (21 Op. Atty. Gen., 385.) The Attorney General's opinion (21 Op. Atty. Gen., 385) applies with equal force to the provisions in the act of March 4, 1911 (36 Stat., 1267,) with reference to rank on retirement of officers of the Navy who fail physically for promotion. Accordingly, in such case, the officer should be ordered before a naval retiring board and to transfer him to the retired list without such further examination would be without authority of law. (File 26260-1732:1, Apr. 25, 1912.) The clause in the Navy law of March 4, 1911, is substantially the same as the pro\'ision in the Army act of October 1, 1890 (26 Stat., 562), and should be construed in con- nection with the precedents established in the Army during the twenty years that its statute was in force prior to the enactment of similar legislation for the Navy. (File 26253- 200:1, Feb. 17, 1912.) Under the act of October 1, 1890 (26 Stat., 562, sec. 3), providing that an Army officer who fails in his physical examination for promotion by reason of disability contracted in line of duty "shall be retired with the rank to which his seniority entitled him to be promoted," held that an Army officer who was not exam- ined for promotion but was f ound by a retiring board incapacitated in line of duty, wliich finding was approved by the President, was entitled to the retired pay of the next higher rank, although the War Department refused to recognize him as holding that rank. "It seems to the court that the finding of the retir- ing board is the necessary equivalent of the only finding that could have been made by the board for promotion." (Cloud v. U. S., 43 Ct. Cls., 69.) An officer was found mentally but not physically, morally, or professionally quali- fied for promotion. The President's action, June 21, 1894, was as follows: "The findings of the boards in this case are disapproved, except the report and findings of the board of medical examiners dated April 2, 1894, which are hereby approved, and it appearing that the disability of Lieutenant Frank W. Nichols is due to sick- ness incurred in the line of duty, he is retired ^\'ith seventy-five per cent of the sea pay of the rank now held by liim." (But see note to sec. 1447, R. S., "Pay of officer retired because not recommended for promotion.") Compare cases noted under section 1447, Revised Statutes. Irregularity in proceedings. — After a retired naval officer has, during the remainder of his life, acquiesced in the proceedings of the retiring board, it does not Lie ^vdth liis adminis- tratrix to object to them for a mere irregu- larity. (Brown v. U. S., 113 U. S., 568.) 601 Sec. 1448. PL 2. REVISED STATUTES. The Navy. The action of a board organized under the act of 1861 can only be valid as it accords with the law of its creation. From that law alone it must draw the breath of life. If, therefore, it is constituted without the direct authority of that law or In \'iolation of its pro\'isions the validity of its action would be open to very serious future question. (10 Op. Atty. Gen., 116.) See also Thompson v. U. S. (18 Ct. Cls., 604, 611), noted under section 1447, Revised Statutes. Retirement for disability a "benefit" to officers.— The act of June 24, 1910 (36 Stat., 600 ), pro\aded that "all paymasters' clerks shall, while holding appointment in accord- ance with law, receive the same pay and allowances and have the same rights of retire- ment as warrant officers of like length of service in the Navy. " If a paymaster's clerk is subject to retirement for physical disability it must be because this provision has so extended section 1453, Re\ased Statutes, as to make it applicable to paymasters' clerks. Held that retirement for physical disability is one of the "rights" of retirement extended to paymasters' clerks by this statute and accordingly that a pay- master's clerk is entitled to be retired under the provisions of section 1453, Revised Statutes (28 Op. Atty. Gen., 417.) It can not correctly be said that section 1453 pro\'ides for a compulsory retirement and therefore is not extended to paymasters' clerks under the provisions giving them the "rights" of retirement possessed by warrant officers. It is both the right and the peremptory duty of the Government to retire an officer under the conditions mentioned in section 1453. On the other hand, it is the right of the officer to be retired under the same conditions. Whether retirement may be beneficial to him or not has notiiing to do with his right of retire- ment and can only influence his determination as to whether or not he will enforce his right should the Government refuse or fail to carry out the mandate of the law. (28 Op. Atty. Gen., 417.) It is conceded that section 1453, Revised Statutes, would be very beneficial to paymas- ters' clerks, much more so, in fact, than to warrant officers, because, if incapacitated for service, their appointments may be revoked and they be dismissed from the service, which can not be done with a warrant officer. That such course would be pursued goes without saying, as the Na\^ Department can not rely upon the labor of those who are wholly incapaci- tated for service. Therefore the protection and benefit of section 1453 ought to be extended to these diseased and helpless officials if any reasonable interpretation of the act of June 24, 1910, will permit this to be done. (28 Op. Atty. Gen., 417.) That retirement for disability under this section is "compulsory," see 27 Op Atty Gen., 162, 164, 166. As to retirement of pav clerks in the Navy, see act of March 3, 1915(38 Stat., 942); and see note to section 1386, Re\'i8ed Statutes. Retirement of warrant officers. — A war- rant officer was retired on furlough pay, for dis- ability not incident to the service (see sec. 1454, R. S.); he acquiesced in such retirement, and drew retired pay thereunder until his death. Thereafter his widow brought suit against the United States to recover the differ- ence between retired pay and active-duty pay on the ground that his retirement was illegal, there being no law providing for the retirement of warrant officers on account of physical dis- ability, and the act of August 3, 1861, section 23 (12 Stat., 291) [now embodied in section 1448, Revised Statutes], being claimed to apply only to commissioned officers. "It must be con- ceded that were the question a new one, the true construction of the section would be open to doubt. But the findings of the Court of Claims shf)W that soon after the enactment of the act the President and the Navy Department construed the section to include warrant as well as commissioned officers and they have since that time imiformly adhered to that construc- tion, and that under its provisions large numbers of warrant officers have been retired. This contemporaneous and uniform interpreta- tion is entitled to weight in the construction of the law and in a case of doubt ought to turn the scale" (citing Edwards v. Darby, 12 \Mieat., 206; Atkins v. Disintegrating Co., 18 Wall., 272, 301; Smythe v. Fiske, 23 Wall., 374, 382; U. S. V. Pugh; 99 U. S., 265; U. S. v. Moore, 95 U. S., 760, 763; U. S. -y. State Bank of North Carolina, 6 Pet., 29; U. S. v. Alexander, 12 Wall., 177; Peabody v. Stark, 16 Wall., 240; and Hahn v. U. S., 107 U. S., 402). "These authorities justify us in adhering to the construction of the law under consideration adopted by the executive department of the Government, and are conclusive against the contention of appel- lant, that section 23 of the act of August 3, 1861, did not apply to warrant officers." (Brown v. U. S., 113 U. S., 568, afiirming 18 Ct. Cls., 537.) Pajmiasters' clerks, in reference to retire- ment are placed in preciselv th.e same condition by the act of June 24, 1910 (36 Stat., 606), as warrant officers, and are entitled to be retired under the provisions of section 1453, Revised Statutes. (280p. Atty. Gen., 417. See above, "Retirement for disability a 'benefit' to offi- cers." Pay clerks are now warrant officers in the Navy by the terms of act Mar. 3, 1915, 38 Stat., 942.) Dental surgeons, probationary. — The provisions of this section have been adminis- tratively applied to a dental surgeon appointed by the President with the advice and consent of the Senate, under the act of August 29, 1916 (39 Stat., 573), while serving his probationary period of two years as required by said act, which further provided that such appoint- ments "may be revoked at any time during the probationary period by the President." (See file 26253-550, Feb. 18, 1918; see also note to sec. 1454, R. S.) Acting chaplains who fail physically upon examination for appointment as chaplains are not eligible for retirement. (File 15721-22:1, Mar. 8, 1922. 602 The Navy. Pt.2. REVISED STATUTES. Sec. 1451. Sec. 1449. [Powers and duties of retiring board.] Said retiring-board shall be authorized to inquire into and determine the facts touching the nature and occasion of the disability of any such officer, and shall have such powers of a court-martial and of a court of inquiry as may be necessary. — (3 Aug., 1861, c. 42, s. 17, V. 12, p. 290.) Courts-martial have power to administer oaths to witnesses (sec. 1624, R. S., art. 41), to imprison witnesses for contempts (sec. 1624, R. S., art. 42), to compel attendance of civilian witnesses (act Feb. 16, 1909, sec. 11, 35 Stat., 621), to institute proceed- ings in civil courts against witnesses who refuse to appear or testify (act Feb. 16, 1909, sec. 12, 35 Stat., 622), and to receive depositions in evidence (act Feb. 16, 1909, sec. 16, 35 Stat., 622). "Courts of inquiry shall have power to sum- mon witnesses, administer oaths, and pun- ish contempts, in the same manner as coiu-ts-martial." (Sec. 1624, R. S., art. 57.) In trials by court-martial and proceedings be- fore courts of inquiry, the accused or per- son charged "shall, at his own request but not otherwise, be a competent witness." (Act Mar. IG, 1878, 20 Stat., 30; Naval Courts and Boards, 1917, sec. 512.) It is provided by statute with reference to naval general coiuts-martial and courts of inquiry, "that no witness shall be com- pelled to incriminate liimself or to answer any question which may tend to incrim- inate or degrade him." (Act Feb. 16, 1909, sec. 12, 35 Stat., 622. See note to Constitution, fifth amendment, under "III. Compelling person to be witness against himself.") Sec. 1460. [Oath of members, retiring board.] The members of said board shaU be sworn in each case to discharge their duties honestly and impartially. — (3 Aug., 1861, c. 42, s. 23, v. 12, p. 291.) On general subject of persons in the Na\y authorized to administer oaths, see section 183, Revised Statutes, and note thereto. Sec. 1451. [Findings of retiring board, cause of incapacity.] When said retiring-board finds an officer incapacitated for active service, it shall also find and report the cause which, in its judgment, produced his incapacity, and whether such cause is an incident of the service. — (3 Aug., 1861, c. 42, s. 23, V. 12, p. 291.) Incident of service. — Section 1249, Revised Statutes, relating to the Army, is similar to the above section, requiring Army retiring boards to report whether the cause of dis- ability is "an incident of service." Simi- lar provisions are also contained in the act of April 12, 1902, section 5 (32 Stat., 100), relating to retirement of officers in the Revenue Cutter Service (now Coast Guard.) Line of duty. — Section 1494, Revised Statutes, provides for the promotion of an oflicer failing physically upon examination for promotion, where such physical disqualifi- cation was occasioned by wounds received "in the line of his duty," and does not incapacitate him for other than sea duty. The act March 4, 1911 (36 Stat., 12G7), pro- vides for the rank on retirement of an officer who fails upon examination for pro- motion by reason of physical disability contracted "in the line of duty." The act of May 22, 1917, section 9 (40 Stat., 86), provides for retirement of officers of Navy and Marine Corps, temporarily appointed or promoted, for physical disability in- curred "in line of duty." The act of June 4, 1920 (41 Stat., 834), provides for retire- ment of officers of the Naval Reserve Force and temporary officers of the Na\'y for disability incurred ' ' in line of duty . ' ' Sec- tion 1588, Revised Statutes, provides for the pay of officers retired on account of in- capacity residting from wounds or injuries received " in the line of duty ," or from sick- ness or exposure "therein." The pension laws provide for payment of pension in cases of disability, by reason of any wound or injury received, or disease contracted, while in the ser\dce of the United States and "in the line of duty" (sec. 4693, R. S.; see also sees. 4697, 4698, R. S. ; act Jidy 14, 1892, 27 Stat., 149; act Apr. 8, 1904, 33 Stat., 163, etc.) The War Risk Insur- ance Act of October 6, 1917, section 300 (40 Stat., 405), as amended by act of Jime 25, 1918 (40 Stat., 609), pro\'ides compen- sation for death or disability "Resulting from personal injury suffered or disease contracted 'in the line of duty * * * but no compensation shall be paid if the injury or disease has been caused by his own willful misconduct." Section 1754, Revised Statutes, prefers for civil appoint- ment persons disabled in the military or naval ser\dce "in the line of duty." Not misconduct.— Act of May 13, 1908 (35 Stat., 128), proAided for payment of gi-atuity to dependents, upon death of any officer or enlisted man on the active list of the Na\y or Marine Corps, from wounds or disease contracted "in line of duty." This was amended by act of August 22, 1912 (37 Stat., 54641°— 22- -39 603 Sec. 1451. Pt. 2. REVISED STATUTES. The Navy. 329), providing for payment of gratuity where the death was from wounds or dis- ease "not the result of his own miscon- duct." (The act last cited was repealed by act Oct. G, 1917, sec. 312, 40 Stat., 408. and reenacted A\'ith amendments by act of June 4, 1920, 41 Stat., 824). The act of August 29, 1916, as amended by act of July 1, 1918, pro\'ided for ^nthholding pay in cases of ofiicers or enlisted men absent from duty, because of injiiry, sickness or disease resulting from "misconduct." (39 Stat., 580; 40 Stat., 717.) Section 1456, Revised Statutes, ])rohibits the retirement of officers " because of misconduct." The act of Aiigust 5, 1882 (22 Stat., 286), pro- hibits retirement of officers imfit for sea duty by reason of dnmkenness. or from any cause arising from "his own misconduct." Sections 4756 and 4757, Re\-ised Statutes, pro^■ide for payment from Na\y pension fund to persons discharged from the NaA^ other than for "misconduct." •Failure of board to report cause of incapacity. — The report of the board that there was no evidence that the officer's incapacity was the result of any incident of the service, "is to all intents and purposes a report that the incapacitj'' was not the result of an incident of the service, and justifies an order retiring the officer on furlough pay." (Brown v. U. S., 113 U. S., 568, 573.). Effect of oflB.cer's acquiescence in irreg- ularity of board's proceedings. — "If there had been any irregularity or defect in the re- port of the board, it was the duty of Brown to object to it without unreasonable delay. After his acquiescence in the proceedings during the remainder of his Ufe, it does not he with his ad- ministratrix to object to them, even for a sub- stantial defect, much less for such an irregu- larity, if it be an irregularity, as is set up in this case. Our opinion is, therefore, that the order of the President retiring Brown was au- thorized by law, and was regular and valid." (Brown v. U. S., 113 U. S., 568, 573.) Surplusage in board's finding is of no legal effect.— Section 3 of the act of February 21, 1861, provided for the retirement of medi- cal officers "permanently incapable, from physical or mental infirmity, of further ser\dce at sea," to receive "leave of absence pay." A medical officer was retired in 1861 imder said law for disability which "did not occur iia the line of liis duty." Under the provisions of this law, it was immaterial whether the in- firmity of the officer originated in line of duty or not. Hence, in so far as the cause for re- tirement thereunder is concerned, the state- ment of the board of 1861 that it did not occur in the line of duty, must be deemed to be mere surplusage. An allegation of error in such statement, therefore, furnished no ground for reexamination of his case, if indeed a re- examination could have been had on any ground after his retirement. (17 Op. Atty. Gen., 178.) The act of March 3, 1873 (sec. 1588, R. S.), provided 75 per cent of sea pay for officera re- tired for disability incurred in the line of duty. In 1878 the officer mentioned in the preceding paragraph made application for a further ex- amination of his case, based on new evidence tending to show, as lie alleged, that the opinion of the board as to the cause of his disability was erroneous. Thereupon the Secretary of the Na^■y ordered a new board, which found that his disability "had its origin in the line of duty." This finding was, on January 1, 1879, approved by the Secretary of the Navy. Held, that the Secretary of the Navy was not author- ized by law to submit the case of this officer to a medical board for reexamination as to the origin of the disability for which he was re- tired, and that the Secretary's decision based on the report of that board is without anj^ legal effect as regards the cause for retirement in the case of said officer or his right to pay. (17 Op. Atty. Gen., 178.) By act of August 3, 1861, Congress made new and enlarged provisions for the retirement of naval officers, both of the line and staff. These provisions superseded all others previously in force, but had no applicatiou to officers already retired under former laws. This statute di- ^'ided the causes for retirement into two classes. The proAdsions of the act of August 3, 1861, are reproduced in sections 1448-1455, Revised Statutes. The retiring board under this latter law was authorized to inquire into the dis- ability only of officers of the active list. There is no provision authorizing the case of an officer retired under the act of February 21, 1861, to be investigated by a board with a -view to de- termining the cause of his retirement. A rein- vestigation of such case without authority of Congress could not be made the basis of any change in regard to the cause of the officer's re- tirement, nor confer upon him any rights to which he would not otherwise be entitled. (17 Op. Attv. Gen., 178.) The acts of July 15, 1870, and March 3, 1873 (sec. 1588, R. S.), pro\'ided 75 per cent of sea pay for certain classes of retired officers, and provided that "the pay of all other officers on the retired list" shall be one-half sea pay. This latter phrase is broad enough to include officers retired under the act of February 21, 1861. (17 Op. Atty. Gen., 178.) Finding made under a misconstruction of the law. — An opinion and recommendation of an examining board made imder a miscon- struction of the law can not control distmct statutory provisions, and accordmgly the re- tirement of an officer in accordance with such erroneous finding may be corrected by the President. (17 5p. Atty. Gen., 7.) Reconsideration of finding by board of its own initiative. — Where a naval retiring board convened to inquire into the nature and cause of the disability of an officer has once finished its work, rendered a complete judg- ment in the case, and adjourned, a subsequent reconsideration of its judgment by the board, unless authorized or directed by proper au- thority, can have no legal effect. Accordingly, upon examination of tlie record of the proceed- ings before a naval retiring board in the case of Paymaster Rodney, held, that the paper at- tached to the record, called a reconsideration of the finding of the board, was without legal effect, and that the officer was properly retired under the original finding of the board on furlough pay. (16 Op. Atty. Gen., 104.) 604 The Navy. PL 2. REVISED STATUTES. Sec. 1451. Findings not subject to review by accounting ofla.cers. — An officer of the Navy having been retired for a peculiar mental tem- perament which incapacitated him for properly performing duties on the active list, the find- ings of the retiring board are not subject to re- view by the accounting officers, and his retire- ment was authorized by law. (Dig. Comp. Dec, 493.) "Incident of the Service" and "Line of Duty" compaeed. "Incident of the service" synonymous with "hne of duty." — [It will be noted from the laws cited above that while section 145], Revised Statutes, requires retiring boards to report whether an officer's incapacity resulted from "an incident of the service," section 1588, Revised Statutes, in prescribing the rate of retired pay speaks of officers retired for dis- abilities incurred "in the line of duty," the act of March 4, 1911, provides increased rank for officers retired in certain cases by reason of disability contracted * ' in the line of duty, ' ' and tlie act of May 22, 1917, speaks of retirement of officers for physical disability incurred "in line of duty." These statutes obviously use the words "incident of the service," and "line of duty," as synonymous terms. That they have been so regarded in the past is shown by records of naval retiring boards which have frequently reported the disability of officers as having been incurred in the "line of duty" instead of using the statutory phrase, "incident of the service." In the decisions of the courts and law officers of the Government such reports of retiring boards have been accepted without questioning their compliance with the statute. For exam- ple, in the case of Biuchard v. United States (19 Ct. Cls., 137; 125 U. S., 176) the retiring board reported the officer "incapacitated for duty by disability which did not originate in the line of duty," which report was approved by the President and held by the courts not subject to be changed either by the Secretary of the Navy, by the President, or by Congress, although the q^uestion of terminology was not considered. Similarly, in the case of Potts v. United States (125 U. S., 176), the board re- ported that the incapacity of the officer did not " originate in the line of duty, ' ' and it was held by the courts that this report, having been duly approved, could not afterwards be changed to make the cause of the officer's retirement "the result of an incident of the service." To the same effect, see 27 Op. Atty. Gen., 221. So also, in the case of Morse v. United States (229 U.S., 208), the report of the board was that the incapacity did not originate "in the line of duty"; see also, 15 Comp. Dec, 584. These and many other cases show that in practice the terms "incident of the service" and "line of duty," have been used interchangeably by naval retiring boards, as well as by Congress, although at the present time these boards in their reports are requii-ed to conform to the statutory language in cases under this section, and report whether or not the disability is caused by "an incident of the service." (See Naval Courts and Boards, 1917, p. 461.) How- ever, the same publication (p. 316) states that the phrase "line of duty" should be construed as haAdng the same meaning with "incident of the service." In the Army the decision upon this point is as follows: "The phrases 'in line of duty' and 'incident of the service,' while not synonymous, are not widely separate in mean- ing. Held, that the efficient execution of a statute involving the one would give reasonable operation to the other. In other words, the several 'incidents' which go to make up the daily or yearly routine of military service constitute, when added together, the 'line of duty' which is contemplated in the pension laws, and no public interest will suffer if either understanding be applied by a retiring board in the determination of a particular case." (Army Dig., 1912, p. 986 c.) Definitions and illustrations of "line of duty" would in view of the above seem equally applicable to "inci- dent of the service " imder this section.] "line of duty" defined. Intention of Congress. — The question of what constitutes "line of duty" within the meaning of the pension laws was exhaustively considered and authoritatively construed by Attorney General Cushing in 1855 (7 Op. Atty. Gen., 149, noted below). The fact that after this construction Congress has retained this expression for more than forty years, although it has repeatedly revised and amended the pen- sion laws, amounts to a demonstration that Mr. Cusliing properly interpreted its meaning. (Rhodes v. U. S., 79 Fed. Rep., 740.) The phrase, "in the line of duty," has been uniformly used in the statutes from 1799 to the present time in defining the right to pensions. It received elaborate discussion from Mr. At- torney General Cushing in 1855 (7 Op. Atty. Gen., 149), and as Congress, since the publica- tion of that opinion, has not seen proper to sub- stitute any other expression, we are justified in concluding that it stands in the statutes in- vested with the meaning expressed by Mr. Cushing. (17 Op. Atty. Gen., 172.) [The opinion of Attorney General Cushing was adopted by the Navy Department, and his definition of "line of duty" was published, July 10, 1914, in a circular of changes and corrections in "Forms of Procedure for Courts and Boards in the Navy and Marine Corps, 1910," pages 224 and 225. (See also, Naval Courts and Boards, 1917, and see file 26250-1372, Mar. 3, 1919 and file 26250-1491:1 Oct. 29, 1918.) It was approved by the Circuit Court of Appeals in the case of Rhodes v. United States and 17 Op. Atty. Gen., 172, both above noted. However, it was departed from by the Court of Claims in Moore v. United States, 48 Ct. Cls., 110 (noted below), in which case, how- ever, the Court of Claims did not discuss or cite the Attorney General's opinions, nor the deci- sion of the United States Circuit Court of Ap- peals in the Rhodes case, above noted. The opinion of Attorney General Cushing is also modified by opinions of Attorney General Palmer, August 21, 1919, and June 2, 1920 (32 Op. Atty. Gen. 12, 193), both noted below. "Both the Circuit Court of Appeals and the Court of Claims have jinisdiction, in proper cases, to decide the question. I can not say 605 Sec. 1451. PL 2. REVISED STATUTES. The Navy. that the decision of either is binding on the other. In so far as they are in accord, I would, in the absence of a ruling by the Supreme Court, feel bound to accept their decision. In so far as either has made a decision on a point not considered by the other, and not in necessary conflict Avith its ndings, 1 tliiuk you should follow such decision. In so far as the two courts are in conflict, it can not be said that there has been a binding deterrhination, and you should adopt the rule which is deemed most consistent with reason and general authority whether in entire accord with the ruling of either comt or not." (Atty. Gen. Palmer to Secy. Treas., 32 Op. Atty. Gen., 12, 22).] The question of what constitutes "line of duty" must have existed almost from the foundation of the Government, in the naval service and also in the military, and in such varieties of form as to afford ample means of ascertaining the true legal intendment of the several acts of Congress. Thus, in regard to the Navy, we have the old pro\ision of the act of March 2, 1799, which is the original act for the government of the Navy, to the effect that "every officer, seaman, or marine disabled in the line of his duty, shall be entitled to receive for his own life, and the life of his wife, if a married man at the time of receiving the wound, one-half his monthly pay" (1 Stat. 716). Coming down to a later period, we have a series of acts in wliich the same idea appears. (7 Op. Atty. Gen., 149, 151.) Congress, if it had so pleased, might have prescribed an arbitrary general rule, as, for example, pension to all cases of disability or death in service, except in the contingency of misconduct; or pension in all cases, except where the cause of disability or death should occur while the party is in arrest or under sentence, on furlough or leave of absence. Such a rule, like all other rules of an assumed arbitrary standard, might have been easier to administer than a natural rule, for the latter demands, in use, discriminating examination and just appreciation of the nature of the in- cluded subject-matter; but the natural rule is the only just and eqiutable one, whether as regards the rights of persons in the service, and their families, or the policy of the Government. (7 Op. Atty. Gen., 149, 163.) Where precedents exist in the files of a department which are apparently not in accord with the meaning of the words "line of duty," as_ intended by Congress, such prece- dents avail nothing; decisions in the public offices of the Government are facts, not rules of law. (7 Op. Atty. Gen., 149, 153.) Definition of "Hne of duty." — ^The phrase "line of duty," is an apt one, to denote that an act of duty performed must have relation of causation, mediate or immediate, to the wound, the casualty, the injury, or the disease, pro- ducing disability or death. (7 Op. Atty. Gen., 149, 161; 17 Op. Atty. Gen., 172; Rhodes v. U. S., 79 Fed. Rep., 740.) Was the cause of disability or death a cause within the line of duty or outside of it? Was the cause appertaining to, dependent upon, or otherwise necessarily and essentially connected with, duty within the line, or was it unappur- tenant, independent, and not of necessary and essential connection? That is the true test- criterion. (7 Op. Atty. Gen., 149, 162; 17 Op. Atty. Gen., 172.) The phrase, "line of duty," is definite, though comprehensive'. He who contracts disease or dies in consequence of the ordinary performance of his military duty, or in the performance of any special act of military duty, whether at the moment of performance he were on duty or off duty, in active service or on furlough, of habits virtuous or habits vicious, gallantly fighting his country's enemy or expiating an offense in the guardhouse or prison bay, he who in these or any other circum- stances contracts disease in the performance of an act of duty, contracts it "in the line of his duty." On the other hand, neither the bad man who dies of his incorrigible vices, nor the good man who, at the full maturity of blame- less life, dies in the course of nature of any of the maladies incident to old age, can be said to die of disease contracted while in the line of duty. (7 Op. Atty. Gen., 149, 161.) Speaking generally, a soldier who, between the date of his entry into the service and the date of his discharge, suffers injury or contracts disease resulting in disability, is entitled to compensation imder the War Risk Insui'ance Act of June 25, 1918 (40 Stat., 611, sec. 300), unless such injury is caused by (1) his own willful misconduct, or (2) some act or course of conduct of his disconnected with his military duties. (32 Op. Atty. Gen. 12, 21.) The service must have been the cause of the disability, and not merely coincident with it in time. — Nor was there any error in the definition wliich the court gave to the jury of a "disease contracted in the Line of duty," when he declared that "the service must have been the cause of the disease, and not merely coincident with it in time." This is the patent and natural meaning of the language of the statute. It places the service and the discharge of duty m the relation of causes to the injuries and diseases that warrant the grant of pensions. (Rhodes v. U. S., 79 Fed. Rep., 740.) Regarding what was said in the Rhodes case in the Ught of the opinions upon which it is based, the following general rule may be de- duced : ' ' The mere fact that an injury or disease is coincident in time with service is not suffi- cient to class it as suffered or contracted 'in the line of duty.' It must have been caused by the presence of its victim in the line of duty when it was received or contracted. But the relation of causation is sufficiently shown when it appears that the victim was at a place and doing what was required or permitted by his duty as a soldier, and that between his presence and conduct and the injury or disease, no adequate and sufficient cause, for which he is responsible, intervened." (32 Op. Atty. Gen., 12, 19, 194.) The soldier will be responsible for the inter- vening cause if (1) it consists of his own willful misconduct or (2) it is something which he is doing in pursuance of some private avocation or business. (32 Op. Atty. Gen., 12, 23, 195.) The two intervening causes mentioned are not intended to exclude all others. (32 Op. Atty. Gen., 395.) 606 The Navy. PL 2. REVISED STATUTES. Sec. 1451. The cause of disability (or of death), must be a cause connected by some line of co-ligation with the performance of duty of an official or professional natiu-e. (7 Op. Attv. Gen., 149, 159.) To pension disabilities or deaths occmring in the mere course of nature, and ha\dng no relation of casualty in duty, or disabilities or deaths produced by diseases or casualties happening to an officer or soldier in the prosecu- tion and pursuit of his private affairs and amusements, or whilst employed on furlough in lucrative occupation not official, is not required by any consideration of public service. (7 Op. Atty. Gen., 149, 163.) The true theory of reason, of right, and of public poUcy in these matters is to bestow disability or death pensions only in those cases, but in all those cases, where the cause of disability or death is the logical incident or provable effect of duty in the service. (7 Op. Atty. Gen., 149, 163.) No one would seriously contend that every wound, injury, or disease received or con- tracted during the term of ser\'ice is pension- able under the law. A wound or injiu-y in- flicted upon himself by a soldier, or received by him while hunting wild animals, or squab- bling with his comrades for his own amusement, or while doing any other act not in the line of his duty, would form no basis for a pension. The reason is that it would not be caused by his presence in the line of duty. (Rhodes v. U. S., 79 Fed. Rep., 740.) The letter of the law prescribes that the quality of the act or condition, as whether in line of duty or not in it, shall determine the question of pension ; that alone is just and wise ; and that is the thought which has from the beginning of this course of legislation to the end, held its place with unchangeable con- stancy in all the acts of Congress. (7 Op. Atty. Gen., 149, 164.) The law does not say "disease contracted while in the service," and therefore is not coextensive with the mere status of an officer in commission, or an enlisted soldier, sailor or marine. (7 Op. Atty. Gen., 149, 160.) It would not have answered to say merely "in the service," for that would have made the right of pension more extensive than the right of pay, so as, in all circumstances, to comprehend not only deaths of private mis- adventiu-e, but even the case of criminality, arrest, or suspension under sentence. (1 Op. Atty. Gen., 149, 160, 161.) The cormection between the cause and the efiPect need not always be so direct or instantaneous as in cases where the party is in the immediate and ob\ious discharge of his duty. It suffices if the disability be plainly, though remotely, the incident and result of the military profession. The perfonnance of duty may be received as the original cause of disability in some cases where it is not the proximate cause. It is not necessaiy that the casualty or disease should be in its nature pecu- liar to the employments of military men; it may be loss of eyesight, occasioned by expo- sure, or consumption, the result of a cold aggravated by the labors and hazards of the profession, or palsy, attributable to the change of habits in the transition from civil to military life. These are cases of disability in the line of duty, though they might have happened to the party in any other occupation. There is not one of these cases which has not relation of consequence or effect, either remote or proximate, to the performance of military duty. (7 Op. Atty. Gen., 149, 158.) Not restricted to battle or some hazardous enterprise. — "The expression ' wounds received in the line of his duty ' found in section 1494, Revised Statutes, which pro- \ddes for the promotion of officers of the Navy whose physical disqualifications do not inca- pacitate them for other duties, means precisely what it says — namely, wounds received in the line of duty — and is not restricted to any par- ticular part of that duty, as to wounds received in battle or in some hazardous enterprise." (23 Op. Atty. Gen., 324.) Private affairs not embraced by "line of duty." — When the acts speak of "Une of duty," they mean, of course, pubUc duty. (7 Oj). Atty. Gen., 150, 155.) It is impossible to say that the phrase cas- ualties or injuries received "in the line of duty, ' ' comprehends all the possible misadven- tiu-es of mere private life, which may happen to an officer in his personal affairs, and wholly disconnected from his public duty, though he be not on furlough. (7 Op. Atty. Gen., 149, 156.) Every person who enters the military serv- ice of the country — officer, soldier, sailor, or marine — takes upon himself certain moral and legal engagements, which constitute his offi- cial or professional obligations. Whilst in the performance of those things, which the law requires of him as military duty, he is in the line of his duty. But, at the same time, though a soldier or sailor, he is not the less a man and a citizen, with private rights to exercise and duty to perform; and while attending to these things, he is not in the line of his public duty. (7 Op. Atty. Gen., 149, 162.) Suppose that an officer is a proprietor of a stock farm, as he has a perfect right to be, to which private property, without neglect of any of his public duties, he gives occasional attention, and suppose that in the care of his property he is killed by the kick of a vicious horse of his stock, most assuredly it can not be pretended that such a casualty or injury occurs "in the line of duty." (7 Op. Atty. Gen., 149, 156.) A soldier in attempting to pass the guard with a written permit was injured by the sen- tinel. If the pass was given to him solely for the purpose of enabling him to attend to his private affairs, and if, at the time he was in- jured he was going about his private business, he can in no sense be considered as in the public service. (7 Op. Atty. Gen., 149, 155; 2 Op. Atty. Gen., 590.) Around all these acts of the soldier or sailor which are official in their nature, the pension law draws a legislatiA-e line, and then it says to the soldier or the sailor — If, while perform- ing acts which are within that line, you there- by incur disability or death, you, or your widow, or children, as the case may be, shall receive a pension or other allowance; but not 607 Sec. 1451. Pt. 2. REVISED STATUTES. The Navy. if the disability or death arise from act3 per- formed outside of that line, that is, absolutely disconnected from, and wholly independent of, the performance of duty. (7 Op. Atty. Gen., H9, 1G2.) To illustrate, a soldier in camp may, during a rest hour, be employing his time by working on an invention wholly disconnected with the military service. He is, in general, in the line of duty, but at the moment is exercising a private right for private purposes. An ex- plosion is produced by chemicals which he is using. There has intervened a cause for which he is responsible and the injury is not suffered in the line of duty. But while so employed he is struck by lightning, or is suddenly stricken with api^endicitis; clearly there has been no intervening cause for which he is responsible and the injury is suffered in the line of duty. In either case, what he was doing was in no way inconsistent with the performance of his mili- tary duty. While he was doing it, the duties of a soldier still rested on him. He was not free from their obligations, nor was he neces- sarily deprived of the rights which grow out of their performance. This would_ result only in the event the thing he was doing, outside of his duty, caused the injury he received. (32 Op. Atty. Gen., 12, 20.) May be in "line of duty" although not "on duty." — The law does not say, "disease contracted while on duty," and is therefore independent of the condition of watch on deck, or turn of detail in camp or garrison. (7 Op. Atty. Gen., 149, 160.) Nor would the wise intentions of the law have been fulfilled by merely saying, "while on duty," for on one hand a party, though on duty, might contract disease or come to his death by vice or crime; and on the other hand, although not on duty, although on furlough, on leave of absence, in arrest, under sentence of punishment for breach of duty, civil or mil- itary, in all these conditions his general mili- tary obligations continue in full force and he has the faculty and may have the occasion in any of these conditions to perform acts of pure military duty and in the performance thereof to incur disease or death, in circumstances devolving on his widow or children the highest moral and the amplest legal right of pension allowance. (7 Op. Atty. Gen., 149, 161.) When it is remembered that no commissioned officer, or enlisted soldier, seaman, or marine, has power to cast off his obligation at will; that whether he Ije on duty or off, in glory as in disgrace, still the banner of his country is over him and its oath upon his conscience; when this great fact shall be remembered, it must be inevital)le to concede that any rule based on the assumption of its being impossible for an officer or soldier on furlough, on leave of ab- sence, in arrest, under sentence, to perform acts, suffer casualties, receive wounds, or incur causes of disease, in the line of his duty, is not a truth and like all things not true, can not be conformable to justice or wisdom. (7 Op. Atty. Gen., 149, 163.) As while on duty he may do or suffer things not in the line of his duty, so whilst off duty or on furlough or under censure, he may do. and suffer things which are in the line of duty. (7 Op. Atty. Gen., 149, 164.) The law does not say "disease contracted while in active service," and therefore is not designed to raise the question of whether on furlough, or leave of absence, or not. Nor would it have been satisfactory to say, "in active serWce," for that is descriptive only of the orders under which a party may happen to be, and affords no sufficient indication of what is the nature or the quality of his acts. (7 Op. Atty. Gen., 149, 160, 161.) The idea that fiulough or leave of absence must of necessity exclude an officer from all benefit of the pension laws maj'^ have arisen from the fact that officers are furloughed or put on leave of absence from time to time for the piu'pose of enabling them to enter into lu- crative private pm'suits or for some other cause which implies negation of public duty. In such cases the officer will, of course, be ex- cluded from the pur\dew of the pension laws, not because of the furlough or leave of absence per se, but because of the special occasion or consequences thereof. (7 Op. Atty. Gen., 149, 164.) A soldier is not in line of duty if absent on a furlough which by its terms authorized him to enter into some form of civil employment. He is not, therefore, entitled to compensation for injury suffered or disease contracted while so furloughed, regardless of what may have caused it. (32 Op. Atty. Gen., 24, 26, 197.) A soldier or sailor while "under an-est" or "in confinement" is not discharged from the obligation of duty, and is occasionally called upon to perfonn duty in which he may distin- guish himself and die honorably, as, for exam- ple, in the contingency of a post or a camp attacked by the enemy, or a ship in peril at sea. So, still more, of an officer on furlough. So it may be in the case of a soldier temporarily "absent on leave," nay, even of one compro- mised in some grave military offense. (7 Op. Atty. Gen., 149, 154.) In regard to arrest, again: Suppose that on march, m camp, or garrison, or on a voyage, an officer is put in arrest on charges. In the first place, those charges may not be substantiated, and then it would be manifestly unjust that the mere fact of his being charged should operate to deprive himself or his family of pension. Or, while he is in arrest, he dies of camp fever or ship fever, and then it is unjust to presume a criminality not proved in the course of the law. Or, whether guilty or not, if he die of wounds, casualty, or disease contracted while in arrest, still the death is not the consequence of the arrest, but of the public service. If not dying in arrest, and on trial being con^dcted and sen- tenced, and that sentence be of death or dis- missal for some grave military crime, that of course terminates the question of pension; but, if his offense be a light one, with a sentence of reprimand, for instance, and he should have happened to contract disability or mortal dis- ease while in arrest, as by the hazards of a long march or voyage, it seems not just to add to his legal sentence the serious, indirect aggravation of incapacity of pension. All these difiiculties are avoided or conciliated by directing inquiry 608 The Navy. PL 2. REVISED STATUTES. Sec. 1451. to the question — ^Yas the cause of disability or death, or was it not, an act of his official military duty? (7 Op. Atty. Gen., 149, 164, 1(35.) A leave of absence, an ordinary furlough, or an arrest does not remove a soldier from the active service. But, on duty, on furlough, or under arrest, he may do things both within or without the line of duty which, though entirely free from the imputation of misconduct, may cause injui'v or disease. (32 Op. Atty. Gen., 12, 22, 25, 197.) May be not "line of duty," although "on duty." — A party, though on duty, might contract disease or come to hia death by vice or crime. (7 Op. Atty. Gen., 149, 161.) While on duty, he may do or suffer things not in the line of his duty. (7 Op. Atty. Gen., 149, 164.) An officer or soldier who is neither under arrest nor in confinement nor on furlough, nor absent \vithout leave, may yet die in a thousand ways which will be neither of disease contracted nor of casualties by drowning or otherwise, nor of wounds received while in the line of duty; as, for example, in a chance quarrel, or in dan- gerous amusements. The conditions of inclu- sion, as well as of exclusion, must have relation to the line of duty. (7 Op. Atty. Gen., 149, 155.) A soldier or sailor, like any other man, has the physical faculty of doing many things which are in violation of duties, either general or spe- cial ; and in doing these things he is not acting in the line of hia duty. (7 Op. Atty. Gen., 149, 162.) Misconduct or violation of duty can not be line of duty. — It is conceded that if the cause of death intervene as the incident, or be the result, of any misconduct or violation of duty, as by drunkenness or other vicious course of life, or in the act of mutiny, desertion, or other breach of military obligations, then the party does not die by disease contracted, cas- ualty occurring, or injury received while in the line of duty. No man, it is clear, is acting in the line of duty while the act he perfonns is a violation of his duty. All such cases we ex- clude at once, and by common consent, from the purview of the pension laws. (7 Op. Atty. Gen., 149, 153.) A soldier in attempting to pass the guard with a written permit was injured by the sentinel. If the assault was brought on by his own mis- conduct, he can not be said to have been dis- abled while in the line of hia duty. (7 Op. Atty. Gen., 149, 155; 2 Op. Atty. Gen., 590.) Misconduct or violation of duty must have relation to the cause of disabiUty, to exclude line of duty. — When violation of duty is taken as a rule of exclusion, it oper- ates only where the violation of duty has prob- able relation to the cause of death; and not where these are independent facts. (7 Op. Atty. Gen., 149, 154.) A sailor who is laboring under all the worst effects of vicious indulgence, and subject to die at any moment of disease occasioned by that cause, may yet happen to die of other disease contracted, or of casualty occurring, or of injury received while indubitably in the line of his duty. In a word, these assumed causes of exclusion should operate, not per se, but only where they affirmatively exclude the line of duty. (7 Op. Atty. Gen., 149, 154.) Contributory negligence. — An injury suffered by a person otherwise in the line of duty shall not be held to have been suffered "not in the line of duty" for the reason that the negligence of such person contributed to the injury. (32 Op. Atty. Gen., 14, 24). The question of reraote and proximate cause, although frequently treated as a ques- tion of law, is in reality one of fact, and which in an individual case can receive but little light from the numerous adjudications. In every chain of circumstances each step is, to a greater or less degree, the consequence of its prede- cessor. (17 Op. Atty. Gen., 172.) Thus, an ofhcer of volunteers, while in the service of the United States, went to a depot in Ohio, and while expediting the checking of his baggage, was struck by the baggage-master on the head with a hatchet, from the results of which he was seriously disabled. The officer's assumption of the duties of his office caused htm to be subject to orders; the order caused him to come in contact with the baggage-master. If there did not intervene between this contact and the injury an adequate and sufhcient cause for which the officer was responsible, he is en- titled to his pension. (17 Op. Atty. Gen., 172.) But it seems that, while expediting the checking of his baggage, he used abusive lan- guage; as he was responsible for this, the ques- tion arises whether it was an adequate and efficient cause of the injury. If he attempted or threatened violence, or if, after an alterca- tion, he used such gestures or placed his hands in such a position as to lead his opponent to apprehend immediate personal danger, his con- duct would be the immediate, adequate cause of the injury and performance of duty could not be treated as the cause, either mediate or immediate. (17 Op. Atty. Gen., 172.) It is impossible to lay down a general rule applicable to all cases of this kind, or to the different aspects which the present claim might present as the facts shall be developed by the evidence. It can not be said, on the one hand, that a soldier is entitled to a pen- sion vmless the provocation he gave was such as to acquit the assailant in a court of law; nor, on the other hand, that the slightest departure from the rules of proper conduct, followed by an injmy, shall preclude allowance of his claim. Between the two are an infinite variety of supposable cases involving different degrees of provocation which can not be measured, so. as to determine as a matter of law their ade- cjuacy to produce the result. It is in determin- ing, not the legal justification of the baggage- master but the adequacy of the provocation, that, in view of the benevolent purposes of the law, a wise and liberal discretion ia to be exercised. (17 Op. Atty. Gen., 172.) The real question is, whether the officer's conduct in the baggage room waa reasonably calculated to lead to violence, dangerous to himself. If it waa so calculated, his miscon- duct brought its own punishment, and if the punishment was greater than he deserved, legal proceedings against the baggage-master would furnish him hia remedy. If his misconduct 609 Sec. 1451. Pt.2. REVISED STATUTES. The Navy. caused the injury, he is not entitled to a pen- sion. (17 Op. Atty. Gen., 172.) If, while in the performance of his duty, he had been injured by the fall of a carelessly piled lot of bajjsage, the performance of his duty would have been the mediate cause, for no responsil)ility would rest on him for the inter- vening cause. Otherwise, if in an interference with the liaggage-master 's province and duties he had seized a trunk and ])rought it down on hishead. (17 Op. Atty. Gen., 172.) "Line of duty" and "not misconduct," are not synonymous terms. — la it the in- tent of the law to give a pension generally, as the normal fact, and with exception only of the few extraordinary cases of death proved to be the consecpience of a palpable violation of duty? Or is the right of pension to be re- stricted to the cases of death ha\dng some proved or probable relation to duty, whether as causation or as a consociated circumstance? (7 Op. Atty. Gen., 149, 153.) The law does not say, any disease "not the consequence of misconduct;" and if that had been the category contemplated by the legis- lator, he would have propounded it in simple and apt phraseology. (7 Op. Atty. Gen., 149, 160.) The Attorney-General can not yield assent to the proposition that every person in the service, who is not on furlough nor under arrest, and who dies of ordinary death in the course of nature not traceable to mere vice or other specific misconduct, in other words, that all cases of natural death, with some rare excep- tions of disease of provable misbehavior, are deaths by disease contracted in the line of duty. This doctrine is not a thing adjudicated , nor as a question of novel impression, is it good law. _ (7 Op. Atty. Gen., 149, 156.) It is not a satisfactory definition to say that "every officer in full commission, and not on furlough, must be considered in the line of his duty, although, at the moment, no particular or active duty is devolved upon him," and "the same of a soldier (or sailor) who is kept in pay, ' ' even though such definition be quali- fied by introducing the exceptions of "volun- tary absence," from duty, and of "vicious or unjustifiable conduct," while on duty. This definition is faulty by reason of its regarding the "line of duty' ' as an absolute status of the party in service, when it is, in truth, a status relative to certain specific legal conditio s. (7 Op. Atty. Gen., 149, 159.) The words "line of duty" can not properly be held to embrace every cause of death not due to the misconduct of the deceased, but are used by Congress in a more limited sense in its various enactments relating to the disability or death of persons in the Army or Navy. This conclusion is supported by the fact that the law providing for the allowance of six months' pay to the widow or designated beneficiary of de- ceased officers or enlisted men of the Navy [act May 13, 1908, 35 Stat., 128] originally ap- plied by its terms to cases where the death was due to "wounds or disease contracted in line of duty," but by act of August 22, 1912 [37 Stat., 329], Congress substituted the words "not the result of his own misconduct" for the words "contracted in the line of duty," this amendment being made for the express purpose of giving the law a broader application. (See Navy Department's circular of July 10, 1914, publishing changes and corrections in "Forms of Procedure for Courts and Boards in the Navy and Marine Corps, 1910," pp. 224, 225; see also Naval Courts and Boards, 1917. An identical change had previously been made in the similar legislation relating to the Army. See 43 Cong. Rec, 2688.) Rule applicable to diseases, same as in cases of injuries. — In all the statutes the condition of "line of duty'' stands in exactly the same relation to wounds, to drowning, or other casualty and to personal injuries as it does to diseases; and if it were held that all possible deaths by disease happening to a person in the ser\T[ce are of disease in the line of duty in public service, it must in like manner be held that all possible Avounds and casualties happening to a person in the serAdce are in the line of duty in the public service. That the latter is not so, is proved by what is the well- established and well-understood rule of law in regard to contingencies of personal rencounter producing wounds or death. (7 Op. Atty. Gen., 149, 157.) The true meaning of the phrase "line of duty" is the same whether the cause of dis- ability or of death to be considered is a wound, a casualty, an injury, or a disease. _ Whatever is of the essence of "line of duty" in any one of these cases is so in the others. It being established or admitted that a "wound" or death by personal violence, in order to become the foundation of pension, must have logical correlation with military duty, it must be so in the case of "casualty" and of "disease." (7 Op. Atty. Gen., 149, 160.) The same rule applies to wounds, injuries, and disease; for in the law they stand together in a single class. The result is that neither injiury nor disease can authorize the granting of a pension under the acts of Congress unless it is caused by the presence of its victim in the line of duty when it was received or con- tracted. (Rhodes v. U. S., 79 Fed. Rep., 740.) 'line of duty' AS DEFINED BY COURT OF CLAIMS. "Line of duty" is synonymous with "not misconduct." — As a general proposition, a soldier is in line of duty until separated from the service by death or discharge, if during such time he is submitting to all of its laws and regulations. While on leave of absence he may be ordered to active duty at any time, and to this end the department is to be kept con- stantly informed as to his address and all changes in same. The provisions for furloughs or leaves of absence are a part of the discipli- nary regulations of the military service and no more separate a man from the service than an order to report to a different command. The statute confers its benefits whenever the soldier dies while in the service generally, and sub- mitting to its rules and regulations, from wounds or disease not the result of his own misconduct. The amendment of the Army death gratuity law so as to read "not the result of his own misconduct," instead of "con- 610 The Navy. PL 2. REVISED STATUTES. Sec. 1451. tracted in the Ime of duty," did not broaden the application of the original statute in the least. It only made absolutely certain, in unmistakable terms, the intent which the Court of Claims' construction afterwards gave the original law, and thereby reenforced that construction. It is not necessaiy to decide in any case when and where the soldier con tracted the disease. The court is not called upon to take evidence and decide when the germs of typhoid fever, tuberculosis, or other disease first began to incubate. Otherwise, the evidence might show that a soldier engaged in active war duties for years, and in the midst of which he died of tuberculosis, contracted the disease before he entered the sendee. In this case the soldier died while on leave of absence from disease. Held, that it must be regarded as '"disease contracted in line of duty," although it does not specifically appear when or where he contracted the disease. (Moore v. U. S.,_ 48 Ct. Cls., 110. But see above, under "Line of Duty Defined," sub- heading '"Intention of Congress". The Attorney General is'unable to agree that the correct rule is as broad as the language of the Court of Claims makes it. That construction makes ""line of duty' ' practically sjTionjTnous •ndth "in active ser\ice" and robs it of all meaning, since the act uses both expressions •with the e\'ident intention that the one shall limit the other. The soldier must be in active ser\ice, and the disease must be contracted in line of duty. (32 Op. Atty. Gen., 12, 22, con- struing War Risk Ins. Act of June 25, 1918, sec. 300, 40 Stat., 611.) The Attorney General agi-ees with the Court of Claims that "the pro\'isions for furloughs or leaves of absence are a part of the disciplinary pegulations of the military ser\ice, and no more separate a man from the service than an order to report to a different command." (32 Op. Atty. Gen., 12, 25, 197.) For discussion of the foregoing decision of the Court of Claims, see file 26250-1491:1, Oct. 29, 1918, and file 26250-1372, Mar. 3. 1919. EVIDENCE IN LINE OF DUTY CASES. Testimony of medical experts. — Casualty is a question of fact, to be proved according to the ordinary rules of evidence and to the rea- sonable satisfaction of the inquiring and decid- ing mind. That mind is entitled to have the full facts before it, and is not bound to accept as final the opinions even of an expert. Such opinions are evidence, but neither conclusive nor exclusive proof. Every person of judicial training well knows that the opinions of med- ical or other scientific or practical experts often differ, and that they sometimes err in a body as if by some epidemic contagion. There is a judicial case involving scientific inquirj', in the printed record of which are the answers of 23 experts to the same question; 22 of them give decision one way, and a single one of them gives a reverse decision: and in the conclusion it was proved beyond all contro- versy, that he alone was right and that all others erred. In general, the opinions of an expert are of more or less weight and value, according to the person's constitution of mind. and the degree of completeness of the collec- tion of pertinent facts on which his mind acts. But it may happen that the great body of the wisest and leamedest men of science shall be possessed by an erroneous opinion, while the tnie secret of nature is revealed to some dis- coverer who as yet is unknown to the world and is painfully struggling up into the sun- light of greatness and of fame. In a word, no witness, whether expert or not, can rightfully claim to have his opinion take the place of the facts, and so to substitute his judgment for that of the officer who is A-ested by law with the authority to ('ecide. (7 Op. Atty. Gen., 150, 165.) The question was presented to a court of inquiry in the case of a naval officer who com- mitted suicide, '"whether he was insane at the time of committing suicide, and if so, whether such insanity was incident to the seriice." Celebrated medical experts testified in behalf of petitioner that in their opinion the deceased was insane, his insanity being due partly to the nature of the work (indexing) on which he had been engaged for some time prior to his death. One of these experts testified to having himself pert'ormed work of the same character, and was asked by the court: '"Did you ever have suicidal impulses or fear that you would have them?" To which he replied: "I have had the fear very strongly indeed at the top of high buildings, and standing alongside the rushing water of the Yosemite Falls at the top of the cliff, so strongly that I laid down on the ground and so retreated." Another expert witness for the petitioner having also testified to his opinion that the deceased was insane, was examined by the court in part as follows: '"Q. If a man admitted having suicidal impulses, such as jumping from high buildings, jumping into waterfalls, etc., to such an extent that he avoided places of this sort, and lay flat on the ground when in such positions, would you consider him as having a mental disorder, and if so, what? A. Yes, I should say that he had a mental disorder to the degree of his phobia or obsessions, which would be the technical description of it. Q. Could you classify this as insanity in court? A. Technically and cor- rectly speaking, yes. Practically you would explain what you meant by it. " In recording its finding that the deceased "was not insane at the time of committing suicide, " the court remarked with reference to the testimony of these witnesses for the petitioner: '"As regards the conclusions to be drawn from the existence of these minor psychical manifestations, we are confronted by the picture of an acknowl- edged authority in psycho-pathology diagnos- ing a mental disorder in a man as positively sane as Doctor * * *. It is true that this diagnosis was qualified, yet it shows the diffi- culty of distinguishing in a medico-legal way those conditions which, while not strictly normal, are nevertheless of insufficient severity to permit their classification under the head of insanity." (Ct. Inq. Rec. No. 5777.) Where the proofs are balanced, pre- sumption shoiold be in favor of line of duty.— The question of the quality or degree of proof requisite, is a question clearly for the conscience of the deciding officer. If called 611 Sec. 1451. Pt.2. REVISED STATUTES. The Navy. upon to suggest any nile for the guidance of his discretion in the matter, it would be obvioua to say that the pension laws ai'e beneficial in their nature, and therefore to be construed beneficially in matters of ine\dtable doubt. In this \'io\Y, the mere fact of an officer having died in the service, and with utter absence of proof as to the origin or cause of his death, is not sufficient to raise a pension; but where the proofs are balanced, and it is impossible to determine by them as to the fact of "disease contracted," and the fact of "line of duty" found in juxtaposition, whether this colloca- tion be of contiguity only, or of actor and sub- ject — of contemporaneity or sequence only, or of cause and consequence — it would be reason- able to presume in favor of pension; and also to presume in favor of pension in cases where the line of duty appears to enter potentially into the cause of the death, although it should happen not to be certainly provable that it was the exclusive or predominant cause; so that a possible error of absolute and mere uncertainty shall not be suffered to defeat the liberal in- tentions and beneficial policy of the Govern- ment. (7 Op. Atty. Gen., 150, 166.) Evidence in cases of suicide. — Suicide is not of itself a pensionable cause of death and if the suicide is alleged to have been produced by insanity, and thus insanity be put for^vard as the causa causans, then it must be shown that the insanity was the result of or incidental to actsof duty. (7 Op. Atty. Gen., 150, 155.) Suicide is so unlikely a result of an act of duty that the presumption in such cases must be against line of duty in the absence of evi- dence affirmatively showing that it was caused by the service. (File 26250-230:3.) See also above, "Testimony of medical ex- perts;" and see below, "Specific cases involv- ing 'line of duty' or 'incident of the service.' " Burden of proof. — When an officer is examined for retirement, it is incumbent upon him to show, in order to secure a report which will entitle him to be placed on the retired list, rather than on the retired list on furlough pay, that his incapacity was the result of some in- cident of the service. (Bro\vn v. U. S., 113 U. S., 568, 573.)" SPECIFIC CASES INVOLVING LINE OP DUTY ' "iNCinENT OP THE SERVICE." OB Injury from accidental causes while on leave of absence. — Decedents, while on leave of absence, went to a hotel together, engaged a room, and were later found asphyxiated as the result of a gas jet in the room having been left turned on and unlighted when they retired. Held, not line of dutv. (File 26250-238, 239, and 240.) Deceased, while on leave of absence and not performing any act connected vdih the service, was run over by a train. Held, not line of duty. (File 26250-228.) An enlisted man on authorized leave of ab- sence from his ship at Brest, France, was injured while en route to Paris by the accidental dis- charge of a pistol in the hands of a soldier riding beside him on the train. Held, line of duty. This man was in Europe solely because he was in active ser\'ice under the Navy Department. As part of the disciplinary regulations of the service he was given a temporary leave of ab- sence and permitted to visit Paris. On the way to Paris the accident occurred and he was injured just as any other passenger on the train might have been injured. There was no inter- vening cause for which he was resiDonsible. (32 Op. Atty. Gen., 193, 198.) Attempting to save life -while on lib- erty. — An officer of the Naval Reserve Force while on leave of absence was injured by a pistol shotin attempting to assista woman in distress. Held, not in line of duty, because due to an intervening cause having no connection with the ser%'ice. It resulted from the performance of a duty which he owed not as a soldier but as a member of societv. (32 Op. Atty. Gen., 193, 198. But see, contra, C. M. O. 71," 1918, p. 19.) Injury due to performance of specific act of duty while on liberty. — An enlisted man, while on liberty, was stabbed by a drunken cabman while endeavoring to get an injured shipmate back to his vessel, an act in the line of his duty performed while on liberty. Held, line of duty. (File 9331, Apr. 10, 1908.) Status during intervals between hours of duty. — A yeoman in the Na^y on duty at the U. S. Naval Headquarters, London, England, was killed by a motor bus in the immediate vicinity of said headquarters but about three hours after he had completed his duty for the day. Held, line of duty. A soldier in camp is not always occupied in the actual perform- ance of some military duty. During periods of rest he is more or less free to walk around within the limits of the camp, ^^'hen assigned to duty not in a camp, but in a city, he has like fi-eedoin, and was just as much in line of duty as if walking around in camp, and such an accident as is liable to happen to any one pur- suing such a course is the logical incident of his ser^dce. (32 Op. Atty. Gen., 193, 196.) Status while traveling from and return- ing to post of duty. — "All the consequences of the absence of an officer or a soldier from his post of duty on his own motion for his own purposes of business or of pleasure must be regarded as outside the line of duty. While traveling from and returning to the post of duty on an ordinary furlough, given for such purposes, he is at his own risk as to causes of disability to which he may be subjected." (4 P. D., 54; 7 P. D., 102; 16 P. D., 21; House Doc. No. 5, 54th Cong., 2d sess., p. 74.) A soldier, in attempting to pass the guard with a written permit, was injured by the sentinel. If the pass was given to him solely for the purpose of enabling him to attend to his private affairs, and if, at the time he was injured, he was going about his private busi- ness, he can in no sense be considered as in the public ser^dce. (7 Op. Atty. Gen., 149, 155; 2 Op. Atty. Gen., 590.) When a person returning from leave or lib- erty, and prior to expiration thereof, enters a boat provided by the Government for his trans- portation back to his vessel he is once more within the control of the naval authorities, and if killed or injured without the intervention of any cause for which he was responsible, a finding of line of duty would be proper. But if he is returning to his vessel in a private conveyance 612 The Navy. Pt.a. REVISED STATUTES. Sec. 1451. of hia own selection he would not be in a line of duty status unless actually engaged in the performance of an act of duty. (See Navy Department's circular of July 10, 1914, pub- lishing changes and corrections in "Forms of Procedure for Courts and Boards in the Navy and Marine Corps, 1910," pp. 224, 225; see also Naval Courts and Boards, 1917.) A man retvnning to liis post of duty after an ordinary furlough, and killed in consequence of the automobile in which he was traveling being struck by a railroad train, was in the line of duty at the time of death. It was the duty oi the man to return to his post before expira- tion of his furlough. He was doing this when the accident happened, and there was no inter- vening cause for which he was responsible. (32 Op. Atty. Gen., 193, 197.) Homicide. — A yeoman (female) in the Naval Reserve Force was killed by her husband while she was returning to her home upon the com- pletion of her duty for the day. Her death was not the result of her oAvn misconduct. But it was not in line of duty, as it resulted from jealousy on the part of her husband; in other words, it grew out of the domestic relations of the yeoman, entirely separate and distinct from her relations to the Government. (32 Op. Atty. Gen., 193, 196.) Deceased, while on liberty, was murdered by a sliipmate in consequence of some difficulty between the two men of a wholly personal nature. Held, not line of duty. (File 26250- 214.) Liberty granted for specific purpose encouraged by Navy Regulations. — If a man is given permission to go on shore for the express purpose of engaging in athletic sports or exercises encouraged by the Navy Regula- tions, or permission to go swimming or boating, and is injured or killed without negligence or other cause for which he was responsible, the finding should be line of duty, ^^'here, how- ever, a man is granted liberty for his own purposes, and while on liberty goes in swim- ming and is drowned, the mere fact that s'wimming is encouraged by the regulations is not sufficient ground for holding that his death occurred in line of duty. In such a case the general rule applies and it must be held that his death resulted from the exercise of his private rights and was not caused by "an act of duty performed." (File 26250-277:1; 14 P. D., 114. See Navy Department's circular of July 10, 1914, publishing changes and correc- tions in "Forms of Procedure for Courts and Boards in the Navy and Marine Corps, 1910," pp. 224, 225; see also Naval Courts and Boards, 1917. But see 32 Op. Atty. Gen., 12, 193, noted above.) Death, as result of medical treatment. — An enlisted man, suffering from a disease which resulted from his o^\ti misconduct, died in con- sequence of sah'arsan poisoning resulting from medical treatment administered by proper medical authority. Held, line of duty; death was not the result of the disease but of the medi- cal treatment for the disease. (File 26543-213, Apr. 29, 1918, C. M. 0. 37, 1918, p. 23. Com- pare 32 Op. Atty. Gen., 24, 199.) Exercising. — Sirrgeon Thomas Ililand was found by a retiring board, March 1, 1883, to be incapacitated for active service by reason of the amputation of his right leg, as the result of an injury caused by taking horseback exer- cise in Chile, which was shown to be necessary for his health, he having been ill. The injury was held to have "originated in the line of duty " (See Ret. Bd. Rec, vol. 21, 1881-82, case No. 284.) _ "As swimming is an exercise prescribed by the regulations in the routine of exercises and drills, ' ' where an ordinary seaman was drowned while in swimming, and was not guilty of con- tributory negligence or gross negligence, "his death occurred in line of duty." (File 2195-63, June 7, 1907.) Harrison Henry Foster, mess attendant third class, died as the result of injuries received during a boxing match on board the U. S. S. Vermont, June 31, 1909. The board of inquest reported that Foster "died in line of duty * * * and that no blame is attached to any person or persons connected with this occiu-- rence." The report of the board was "not approved " by the commander in chief of the U. S. Atlantic Fleet. The disapproval, how- ever, evidently related to the responsibility for Foster's death, and notto the findingthatit was in line of duty. The death gratuity pro- vided by the act of May 13, 1908 (line of duty), was paid to Foster's beneficiary by check No. 72274, of September 21, 1909. In the case of A. J. Ilorgan, oiler, U. S. Navy, the question arose whether an in- jury to his teeth during a football game on November 23, 1907, was "in line of duty." The Bureau of Na\igation made the following report in the case: "The policy of the Navy Department is to foster athletics in the Navy, and the bureau considers that footl)all and other athletic contests of enlisted men on shore are conducive to theii' physical development and well-being and better fit them for the performance of their duties on board ship, and that injuries received in these contests may be but justly considered in the line of duty." The papers were forwarded to the Bureau of Medicine and Surgery January 3, 1908 (file 458-5), with the follo\ving indorsement: "The department considers that the %vithin- mentioned injury occurred in the line of duty." A board of inquest, August 18, 1909 (file 26250-89), in the case of Joseph Martin Seithel, coal passer, U. S. Navy, found that the de- ceased "died from injuries received while ex- ercising in the gymnasium; that the deceased met his death in line of duty, and that no one is in any way responsible for same." An injury suffered by a person othermse in the line of duty shall not be held to have been suffered "not in the line of duty" for the reason that the negligence of such person con- tributed to the injury, or that it was the result of participation in some form of lawful sport or recreation not contrary to regulations or orders. (32 Op. Atty. Gen., 14, 24.) Prisoner. — While a prisoner may be injiu-ed or killed in line of duty, as shown by the examples given by the Attorney General in his opinion [quoted above, under "May be in line of duty although not on duty"], such cases must be exceptional ones rather than the rule. Thus, where an enlisted man is per- 613 Sec. 1451. PL 2. REVISED STATUTES. The Navy. forming hard laV>or under sentence of general court-martial, and an injury received by him is wholly due to the execution of such sen- tence, it can not be held line of duty. (15 P. D., 54; 5 P. I)., 151.) Tf an enlii^ted man is arrested or imprisoned but on trial is ad- judged not guilty, a disease incurred during nis arrest and imprisonment is within the line of duty (4 P. D., 103). If the man died while awaiting trial, a disease so contracted is held to have been incm-red in line of duty. (14 P. D., 213). But in a case where a private in the Marine Corps was burned to death while in confinement by the civil authorities await- ing trial, and the evidence showed that his imprisonment was the result of misconduct (drunkenness) while on liberty, his death was held not to have occurred in line of duty. (File 26250-218. Compare file 26285-30, Apr. 7, 1909; file 2654.3-20, Jan. 28, 1909. Navy Department's circular of July 10, 1914, publish- ing changes and corrections in "Forms of Pro- cedure for Courts and Boards in the Navy and Marine Corps, 1910," pp. 224, 225; see also Naval Courts and Boards, 1917, p. 290; and C. M. O. 71, 1918, p. 20, stating that the de- cision of Apr. 7, 1909, is no longer in force.) A soldier who died while in confinement in pursuance of the sentence of a court-martial, did not die "while on duty," within the mean- ing of the act of March 3, 1899 (30 Stat., 1224, 1225), which provides for the payment of transportation and bvu-ial expenses of soldiers who die "while on duty away from home." (6 Comp. Dec, 453.) "Suppose that on march in camp or garrison, or on a voyage, an officer is put in arrest on charges. In the first place those charges may not be substantiated, and then it would be manifestly unjust that the mere fact of his being charged should operate to deprive him- self or his family of pension. Or, while he is in arrest, he dies of camp fever or ship fever, and then it is unjust to presume a criminality not proved in the course of law. Or, whether guilty or not, if he die of wounds, casualty, or disease contracted while in arrest, still the death is not the consequence of the arrest, but of the public service. If not dying in arrest, and on trial being convicted and sentenced, that sentence be of death or dismissal for some grave military crime, that of course terminates the question of pension; but if his offence be a light one, with a sentence of reprimand, for instance, and he shall have happened to con- tract disability or mortal disease while in arrest, as by the hazards of a long march or voyage, it seems not just to add to his legal sentence the serious indirect aggravation of incapacity of pension." (7 Op. Atty. Gen., 149, 164.) When confined under sentence one becomes a prisoner and, for the time being, ceases to be a soldier employed in active service. Not so as to one under strict confinement or arrest invoHang suspension from duty while awaiting trial and disposition of his case, even if the trial results in conviction, provided he is not resisting lawful arrest. (32 Op. Attv. Gen., 14, 24.) Violation of duty. — Death resulted from injuries received by the deceased while on board ship in a duty status, "entering a bunker and striking a match there," which acts "were both against orders." Held, that death was the result of "misconduct or violation of duty," and was not, therefore, the result of an injury received in the line of duty. (File 26543-55.) Horseplay. —An enlisted man is not in line of duly while engaged in scuffling or squab- bling with his companions, or voluntarily en- gageut he can not be appointed at once to the retired list. A civil- ian can not be appointed as a retired officer. He must first be appointed an officer on the active list, of a certain rank. None but a com- missioned officer on the active list of the Army can be placed on the retired list. (Miller v. U. S., 19 Ct. Cls., 338, 353.) None but officers in active service being eligible for retirement, the action of the Pres- ident revoking a previous order dropping an officer from the rolls and putting him on the retired list of the Army was inefficient for this purpose. (19 Op. Atty. Gen., 202, 205.) By section 1094 of the Revised Statutes the officers of the Army on the retired list are a part of the Army of the United States, there- fore no one can be upon that list who is not an officer appointed in the manner required by the Constitution. (Wood v. U.S., 15 Ct Cls., 151; afiirmed 107 U. S., 414.) Congress has frequently exercised the power of changing the mere rank of officers without invoking the Constitutional power of the Ex- ecutive to appoint the incumbents to new offices. But when it has been the purpose to place on the retired list one who has been dis- charged from the service, who no longer holds an office in the Army, Congress has provided for his restoration or reappointment in the manner pointed out by the Constitution, gen- erally by the President alone, and then has authorized his retirement. (Wood iJ. U S 15 Ct. Cls., 151, citing Collins v. U. S., 15 Ct! Cls., 22.) For other cases see note to section 1443, Revised Statutes. Status of retired oflB.cers; part of the Navy. — Officers on the retired list of the Navy are still in the Navy, and remain subject to the Rules and Articles for the Government of the Navy, as well as to trial by court-martial. (13 Comp. Dec, 590.) A retired naval officer is a "salaried officer" within the meaning of the act of July 9, 1888 (25 Stat., 243), providing for actual necessary expenses to be allowed salaried officers of the United States under certain conditions. (Franklin v. U. S., 29 Ct. Cls., 6.) Pay is a fixed and direct amount given by law to officers in the Navy in consideration of and as compensation for their personal service. Retired pay is given partly for past service, partly for present liability to military disci- pline, and partly because the officer may be assigned to active duty. Although he has been placed on the retired list he is still an officer of the Navy, is liable to discipline, and 632 The Navy. PL 2. REVISED STATUTES. Sec. 1457. may be assigned to active duty. (17 Comp. Dec, 919.) A retired naval officer who has not been wholly retired from the ser\ice is an officer of the United States. (30 Op. Atty. Gen., 298.) A retired officer of the Army or Navy holds an office with a salary or annual compensation attached. His pay is not a mere pension. (19 Comp. Dec, IGO, citing 11 Comp. Dec, 422, 29 Op. Atty. Gen., 397, 29 Op. Atty. Gen., 503; but see contra, Geddes v. U. S., 38 Ct. Cls., 428, and Comp. Dec, Sept. 26, 1910, file 26254-539, noted in Annual Report of the U. S. Ci\al Service Commission, 1911, p. 126.) An officer of the U. S. Army or Marine Corps, retii-ed from active service only and not wholly retired from service, is an officer in the employ of the Government and so within the prohibition of section 1782, Revised Stat- utes [superseded and repealed by Criminal Code, act Mar. 4, 1909, 35 Stat., 1109, 1153]. (29 Op. Atty. Gen., 397.) Officers of the Navy are not entitled to increased retired pay for length of service after retirement; time on the retired list is not to be counted as ser\ice in computing longevity pay. (15 Comp. Dec, 767.) An officer on the retired list is "serving" in the Army within the meaning of section 1262, Revised Statutes, providing that "there shall be allowed and paid to each commissioned officer below the rank of brigadier general, including chaplains and others having assimi- lated rank or pay, ten per centum of their cur- rent yearly pay for each term of five years' service. " The years so passed in the service after retirement as well as before are included in the provision for increased pay for each five years' service. (U. S. v. Tyler, 105 U. S., 244; Tyler v.}5. S., 16 Ct. Cls., 223; the rule pre- scribed in this decision was modified by act Mar. 2, 1903, 32 Stat., 932.) The retired pay of officers of the Army is "salary," within the meaning of the act of •May 10, 1916, section 6, restricting payment of more than one salary. (22 Comp. Dec, 643.) Pay of a retired officer of the Coast Guard is salary within the meaning of the act of May 10, 1916, prohibiting under certain conditions the payment of more than one salary to an officer or employee. (22 Comp. Dec, 673.) The law under which these officers are re- tired does not require their consent, nor does it require that the order for their retirement shall be based upon any absolute incapacity for further service. It may be based upon age, which, being fixed at a minimum of 62 years, by no means implies such incapacity. It may be based upon wounds received in battle, but the person retired for this cause may for many piu-poses be a very useful officer. The pro\d- sions of the statutes and the uniform treatment of these officers conform to this view, and neces- sarily imply that, while not required to per- form full ser\'ice, they are a part of the Army, and may be assigned to such duty as the laws and regulations permit. (U. S. v. Tyler, 105 U. S., 244; 29 Op. Atty. Gen., 403.) An officer of the Army is still an officer of the United States when placed On the retired list. (In re Winthrop, 31 Ct. Cls., 35.) Officers on the retired list are a part of the Army. They may be assigned to duty and wear uniforms, and continue to be borne on the Army Register, and are subject to trial by coiul- martial._ (Miu-phy v. U. S., 39 Ct. Cls., 178.) A retired officer of the Armj^ not being a ci\'ilian, is not entitled to payment from the appropriation for "ci^'ilian lecturers" at the Naval War College. (14 Comp. Dec, 663.) A retired officer in the Revenue-Cutter Serv- ice [now Coast Guard] holds an "office. " (26 Op. Atty. Gen., 460.) Officers of the Army on the retired list hold public office; but an advancement of such an officer as authorized by act of April 23, 1904 (33 Stat., 264), on account of civU-war 8er\'ice, does not create an office and is not accomplished by an exercise of the appointing power. (25 Op. Atty. Gen., 185; 25 Op. Atty. Gen., 312. An officer when transferred to the retired List is not divested of one office and appointed to another. He continues as a retired officer under the appointment which he held on the active list and even where he acquires a higher rank on retirement this does not call for an ex- ercise of the appointing power. The situation, accurately stated, is that when an officer is transferred from the active to the retired list there is no change in the office which he holds but merely a change in his status and func- tions under his existing appointment. The fact of his retirement creates a new office in the military service, the number of officers of his grade thereby being increased by one and a new office coming into existence on the moment that his retirement becomes legally effective. The number of officers in any given grade in the Navy is not limited by law but only the number of such officers who may be on the active list is so limited, the remainder being on the retired list. (File 28687-22:3, Jan. 9, 1919.) ' ' The general rule undoubtedly is that the status of retired officers who are withdrawn from command and the line of promotion rests fundamentally on the office and rank held at the date of retirement * * *. The Presi- dent may be authorized to appoint on the retired list one not in the service, and in such case there would seem to be an office and an exercise of the appointing power, because it would not constitute a transfer to the retired list from the active list." (25 Op. Atty. Gen., 312, 315.) For other cases see below. "Retired officers may be included in general legislation. " Signatures of i-e tired officers shouldhave word "retired" appended. — The word "re- tired" may appropriately and should be appended to the signatiu^es of officers on the retired list. (File 3575-03.) Persons appointed to retired list from civil life must take oath of office. — A formor Army officer appointed from civil life to the position of major of engineers, and thr-ro- upon placed on the retired list of the Army as of that grade, must take the oath of office re- quired by section 1756, Revised Statutes. (19 Op. Atty. Gon,, 2S3.) General legislation not apphcable to retired officers. — While retired officers are in the Navy, yet they are not serving as such. 633 Sec. 1457. Pt.2. REVISED STATUTES. The Navy. Tlioy arc a distinct class, and when Coni^'tcs.-! lerislales in reference to them they are usually referred to aa retired ollicers or oificers on the retired list . ILhl, therefore, that section 15S8, Revised Statutes, lixing the pay of Navy chaplains on the retired list, and the act of August 5, 1882 (22 Stat., 28G), which proliibits any increase of pay for retired officer.-^, are not affected by the act of Juno 29, 190G jli.xing new rates of pay for Navy chaplain.-^], in so far as concerns the pay of Navy chaplains who were on the retired list when the act of 1906 went into effect. (13 Comp. Dec, 116.) The act of March 3, 1899, section 1 (30 Stat., 1004), providing that "the officers constituting the Engineer Corps of the Navy be, and are hereby, transferred to the line of the Navy, and shall be commissioned accordingly," did not transfer to the line of the Navy officers of the Engineer Corps who were on the retii'ed list at the time of the passage of said act. Accord- ingly, where such officers subsequently became entitled to advancement to the rank of the next higher grade for civilrwar service, such advance- ment was properly made to the grades of the old Engineer Corps. (13Comp. Dec.,630; com- pare 4 Comp. Dec, 628, noted below.) An officer who haa the rank of commander conferred upon him for the purpose of retire- ment does not "attain" that rank within the meaning of section 5 of the Navy personnel act, March 3, 1899 (30 Stat., 1004), which provides "that engineer officers transferred to the line to perform engineer duty only who rank as, or above, commander, or who subsequently attain such rank, shall perform shore duty only." This sec- tion had in contemplation officers who subse- quently attained the rank of commander on the active list; in order to attain the rank of com- manderin the line of the Navy on the active list it is necessary for the officer to be appointed to the office of commander. The rank goes with the office. (12 Comp. Dec, 18.5.) Section 13 of the Navy personnel act of March 3, 1899 (30 Stat., 1007), providing that com- missioned officers of the Navy shall receive the same pay and allowances as provided by law for the officers of corresponding rank in the Army, did not affect the provision m the act of June 7, 1900, concerning pay of retired officers of the Navy ordered to active duty. (13 Comp. Dec, 83.) The act of June 22, 1874 (noted under sec. 1-561, R. S.), which provided that "any officer of the Navy who may be promoted in course to fill a vacancy in the next higher grade shall be entitled to the pay of the grade to which pro- moted from the date he takes rank therein, if it be subsequent to the vacancy he is appointed to fill," was manifestly designed to fix the com- mencement of the increased pay of promoted officersin active service only, and did not apply to the promotion of officers on the retired list un- der section 1460, Revised Statutes, aa amended by act of August 16, 1876 (19 Stat., 204). (17 Op. Atty. Gen.,497.) The provision in the Army act of June 12, 1906, "that hereafter fuel may be furnished to commissioned officers on the active list," did not repeal the provision in the act of April 23, 1904, to the effect that retired officers while assigned to active duty should receive "the full pay and allowances of their respective grades," nor exclude a retired officer of the Marine Corps from the receipt of a fuel allowance while employed on active duty. (13 Comp. Dec, 168. The provisions of section 8 of the act of June 18, 1878, chapter 263, giving to Army officers the privilege of purchasing fuel at the rate of $3 per cord for standard oak wood, do not extend to retired officers of the Army. (16 Op. Atty. Gen., 92.) An officer of the Navy was retired as a mid- shipman ; by actof March 3, 1883 (22 Stat., 472), the title of the grade of midshipman was changed to that of ensign, constituting a junior grade; by act of June 26, 1884 (23 Stat., 60, sec. 2), the grade of junior ensign waa abolished and it: was provided that the junior ensigns then on the list should be commissioned as ensigns in the Navy. The latter act operated to promote officers who had been retired in the grade of midshipman or of ensign (junior grade) to en- sign, but did not have the effect of giving them a corresponding increase of pay, that being still governed by section 1591, Revised Statutes, and the act of August 5, 1882 (sec. 4, 22 Stat., 284), forbidding such increase of pay. (4 Comp. Dec, 628.) Retired oflficers may be included in general legislation. — The art of May 22, 1917, sec 7 (40 Stat., 86) provided "That upon the termination of temporary appointments in a higher grade or rank as authorized by this act the officers so advanced, * * * shall revert to the grade, rank, or rating from which temporarily advanced * * *." The lan- guage of this act is general, making no specific reference to retired officers, and there are authorities both ways upon the question whether such general legislation includes the retired list. However, it sufficiently appears that general legislation relating to officers of the Navy may, upon the highest authority, be held to include officers on the retired list. As there is nothing in the act of May 22, 1917, which requires that retired officers be excluded from - its provision with reference to "officers" reverting to the grades or ranks from which temporarily advanced, it is concluded that they may so revert to their former places on the retired list if temporarily appointed to higher grades or ranks during the present war, as authorized in said act. (File 27231-103, July 17, 1917.) In Badeau v. U. S. (130 U. S., 439, 449), it was held that retired officers were included in the terms of the act of March 30, 18(i8 (15 Stat., 56, 58, sec. 2) now embodied in sections 1223 and 1440, Revised Statutes, which provided : " That any officer of the Army or Navy of the United States who shall, after the passage of thisact, ac- cept or hold any appointment in the diplomatic or consular service of the Government, shall be considered as having resigned his said office, and the place held by him in the military or naval service shall be deemed and taken to be vacant, and shall be filled in the same manner as if the said officer had resigned the same. (File 27231-103, July 17, 1917.) Inasmuch as the Government is to be reim- bursed for stores dispensed under the act of May 13, 1908 ("Provisions, Navy") no reason 634 The Navy. Pt.2. REVISED STATUTES. Sec. 1457. exists for giving this law other than a liberal construction, and it should therefore be held to apply to retired officers, who are "officers * * * of the Navy and Marine Corps." The Attorney General's opinion to the Secretary of War (16 Op. Atty. Gen., 92) holding that a statute authorizing the sale of fuel to officers below cost did not apply to retired officers, was based upon the wording of the law and certain conditions indicating that such was the inten- tion of Congress. (File 26815, Oct. 2, 1908.) For other cases, see above, " Status of retired officers; part of the Navy.'' Power of Congress to remove oflB.cers from retired list. — The first section of the act of December 21, 1861 (12 Stat., 329), re- tired from service two classes of naval officers, firstly, those whose names may have been borne on the naval register 45 years, and sec- ondly, those who had arrived at the age of 62 years. The act of June 25, 1864, provided that the act of 1861 "shall not be so construed as to retire any officer under the age of sixty-two years, and whose name shall not have been borne upon the Navy Register for a period of forty-five years after he had arrived at the age of sixteen years" (13 Stat., 183). The latter act had the effect of removing from the retired list officers of the Navy who were retired in pursuance of the act of December 21, 1861, but who were not liable to be retired by the pro- vision of the act of 1864. (11 Op. Atty. Gen., 144.) It may be questioned whether the Congress could, without abolishing the office, constitu- tionally remove an officer from an office into which he had been legally inducted. (Thomp- son t>. U. S., 18 Ct. Cls., 604, 612.) Retired pay not "pension." — The retired list of the Army is regulated by positive law, being a form of compensation adopted by the Government. (McBlair v. U. S., 19 Ct. Cls., 528.) The retu'ed pay of an inmate of a naval hos- pital is not a ''pension." The difference in the meaning of the terms "retired pay" and "pension" is so clearly recognized in the laws that one can hardly be confused with the other. (12 Comp. Dec, 407.) Upon question whether retired pay is com- pensation or pension, see file 5362-35, June 29, 1911; see also cases noted above, under "Status of retired officers; part of the Navy." Distinction between "rank" and "grade." See note to sections 421 and 1362, Revised Statutes. The word "grade" as used in this section means "rank," and entitles an officer retired while serving as chief of bureau or Judge Advo- cate General in the Navy Department to the rank held by him while so serving. (31 Op. Atty. Gen., 505, 509, 516, 518.) This section shows that the names of officers find their place upon the retired list only ac- cording to gi'ade at the time of retirement. The terms "rank" and "grade" are not synonjons. (Moser v.^ Meyer, 38 App. D. C, 13, 19.) The distinction between rank and grade in both the Ai'my and Navy is so long and so well understood that we cannot suppose Congress ignorant or immindful of it. On the contrary, in the absence of anything to indicate a dif- ferent meaning, we must take it that Congress used those words in their well known and ap- propriate sense. It is significant that section 1457 provides that officers shall be placed on the retired list of officers of the grade to which they belonged, etc., and section 1487 that officers shall "have the rank of commodore." In the Navy personnel act of March 3, 1899, section 9 (30 Stat., 1004), officers shall be re- tired with the rank of the next higher gi'ade, and in section 11, the language is the same. In the act of June 29, 1906 (34 Stat., 554), the language is, with the rank of one grade above that actually held at the time of retirement. It is quite safe to say that in these carefully pre- pared enactments, when Congress said "grade" it meant "grade," and that when it said "rank" it did not mean grade. (26 Op. Atty. Gen., 57.) Section 1457 retired officers generally in their then grade and rank, while by section 1481 the staff officers there referred to were retired with the rank of the next higher grade, thus making a distinction in favor of the latter class. (26 Op. Atty. Gen., 57.) Staff officers retired with the rank of a higher grade are not entitled to bear the title of that rank. They retain the grade and title actually held by them on retirement. A retired staff officer retired with the rank of commodore is not above the grade of captain. (26 Op. Atty. Gen., 57.) Staff officers having the rank of captain on the active list, but retired \^'ith the rank of com- modore imder section 1481, Revised Statutes, are not thereby advanced to the grade of com- modore. Accordingly, the act of June 29, 1906 (34 Stat., 554), providing for advancement in rank of officers on the retired list of the Navy who served during the civil war, and exclud- ing from its benefits officers who received an advance in grade at or since retirement, did not debar a staff officer who was retired with the rank of commodore under section 1481. An officer so retired received an advance in rank, but not an advance in grade. (26 Op. Atty. Gen., 57.) A staff officer retired with the rank of rear admiral under section 11 of the Na\'y personnel act of March 3, 1899 (30 Stat., 1007), would not enter the grade of rear admiral. If recalled to active duty under section 1462, Revised Stat- utes, he would reenter the service with the rank and pay of the next higher grade; that is to say, a medical director who has been retired with the rank of rear admiral if recalled to the service would enter with the rank and pay of a rear admiral, but he woidd enter only from the medical corps and as a medical director. (22 Op. Atty. Gen., 436.) The grade which a professor of mathematics had at the time of his retirement was that of professor of mathematics and not that of cap- tain, which was his rank. (13 Comp. Dec, 241.) In the Navy there are grades for duty, for honor, and for pay. Some of them are made grades by name, others by description. (McCliu-e V. U. S., 18 Ct.Cls., 348.) The next higher grade to captain, under section 11 of the Na\7- personnel act of March 3, 1899 (30 Stat., 1007), is rear admiral of the 54641°— 22- -41 635 Sec. 1457. Pt. 2. REVISED STATUTES. The Navy. lower half. Congreps has croatod for purposes of pay a diflerciice in the rank or grade of rear admiral. Taking one step upward for the pur- pose of pay, he pa^spes into and not over the next ]>ay grade, which is that of the nine lower numliers. (Gibson v V. S., 194 U. S., 182; Ix)we V. U. S., 38 Ct. Cls.. 170; see also Terry v. U. S., 39 Ct. Cls., 353, and note to sec. 1362, R. S.V The grade of an officer in the 'is&\y is his of- ficial station, 1)y which are regulated his powers, duties, and ]niy. His pay may be further governed V>y his time of service within a grade, either in fact rendered within the grade or constructively performed therein through the force of statutes. The office of professor of mathematics is a gi-ade. (Roget v. V. S., 148 U. y., 1()7. Pay is now regulated by "rank" instead of grade. See act of ^lay 13, 1908 (35 Stat., 127), pro\'iding that "hereafter all com- missioned officers of the active list of the Navy shall receive the same pay and allowances according to rank and length of service," and (35 Stat., 128) that "the pay of all commis- sioned, warrant, and appointed officers and enlisted men of the Na^y now on the retired list shall be based on the pay, as herein pro- vided for, of commissioned, warrant, and ap- pointed officers and enlisted men of corre- sponding rank and service on the active list.") A captain in the line is merely a captain, and has but one title to designate both his of- fice and his rank. An officer of the staff has an oflicial title to identify his position in his corps, and also a relative rank in addition, the latter being arbitrarily fixed by Congi-ess to designate his relative rank in the ser\'ice in accordance with the line standard. (22 Op. Atty. Gen., 433; "relative" rank has now been abolished and actual rank sulistituted in the staff corps. See act Mar. 3, 1899. sec. 7, 30 Stat., 1005.) In the engineer corps of the Naw there were the grades of chief engineer, passed assistant engineer, and assistant engineer. In the first of these there were four ranks — captain, com- mander, lieutenant commander, and lieuten- ant; and in the second there were two ranks — lieutenant and lieutenant (junior grade). Certain passed assistant engineers with the rank of lieutenant were, on account of civil- war service, entitled to be retired with the rank of the next higher grade, viz, chief engineer. There being four ranks in the higher grade, held, that the rank to which the officers concerned were entitled, on account of civil- war service, was the rank next above that which they held in the lower grade, and that the provisions of sections 1485 and 1486, Revdsed Statutes, relating to precedence of staff officers, did not operate to entitle them to a higher rank. (26 Op. Atty. Gen., 496. See also note to sec. 1390, R. S.) The retirement of an officer with a higher rank than that held by him on the active list, pursuant to an act of Congress authorizing it, does not confer upon him a new office. He retains his former office, to which he had been duly appointed, and acquires only new and higher rank by the act of Congress authorizing his retirement. The rank which is conferred upon bim by act of Congress upon his retire- ment is in no sense a constitutional api)oint- ment to a new office. (Wood r. U. S.. 15 Ct. Cls., 151; affirmed 107 U. S., 414.) Congress may tran.«fer an officer from the active to the retired list, and may change his rank and i)ay on the active or retu-ed list at any time, without coming in conflict with the Constitution. (Wood v. U. S., 15 Ct. Cls., 151; affirmed 107 U. S., 414.) An officer on the active list may be retired with a different rank from that which belongs to his office, when Congress so proxades, without a new appointment, as he continues to hold the same office, but is transferred to the retired list with a different rank. (Wood v. U. S., 15 Ct. Cls., 151; affirmed 107 U. S., 414.) The effect of advancement of an officer on the retired list on account of civil-war service, in accordance ■nath the act of June 29, 1906 (34 Stat., 554), is not to place him in a different grade, but to give him the rank and retii-ed pay belonging to that grade. (26 Op. Atty. Gen., 433; 26 Op. Atty. Gen., 615.) A lieutenant in the Navy retired with the rank of lieutenant commander under section 9 of the Navy personnel act of March 3, 1899 (30 Stat., 1006), continued to hold the office of lieutenant subsequent to his retii'ement. (14 Comp. Dec, 471.) An officer projjerly appointed to any grade on the active List may be retii-ed with a rank higher or lower than that which belongs to his office, if Congress see fit so to enact; but Con- gress can not appoint to a new and different office without coming in conflict with the Constitution. (Moser v. U. S., 42 Ct. Cls., 86.) Officers of the Navy advanced in rank on the retired list, even where such advancement is by law made subject to the advice and consent of the Senate, are not entitled to commissions in such advanced rank, as no exercise of the appointing power is involved, the effect thereof being merely a change of rank and not pro- motion to a new and higher office. (File 26509- 33, Mar. 24, 1910, citing Wood v. U. S., 15 Ct. Cls., 151, 107 U. S., 414; 25 Op. Atty. Gen., 185; 25 Op. Atty. Gen., 312, 317; 26 Op. Atty. Gen., 433; 26 Op. Atty. Gen., 487; 26 Op. Atty. Gen., 615; file 26254-89, Aug. 11, 1908; see also Cloud v. U. S., 43 Ct. Cls., 69; War Dept., Gen. Order No. 191, Dec. 21, 1904. But see act Mar. 4, 1911, 36 Stat., 1354, pro- viding that "commissioned officers of the Army, Nav^, and Marine Corps on the retired list whose rank has been or shall hereafter be advanced by operation of or in accordance with law shall be entitled to and shall receive commissions in accordance with such advanced rank.") Rank as well as pay of retired officers is entirely within the control of Congress; and a new commission is not necessary where an officer is entitled to be retii-ed with the rank to which his seniority entitled him to be pro- moted. (Cloud V. IT. S., 43 Ct. Cls., 69; but see act Mar. 4, 1911, 36 Stat., 1354, quoted in preceding paragraph.) The President may send to the Senate for approval of his action the names of officers on the retired list of the Army nominated by him for advancement under the act of April 23, 1904 (33 Stat., 264 j, after the adjoui-nment of 636 The Navy. Pt. 2. REVISED STATUTES. Sec. 1457. the last session of Congress, but who died before the convening of the present session; and ujwn approval by the Senate, the personal represen- tatives of the deceased officers will be entitled to receive the advanced pay due such officers, without further action by Congi-ess. WTiere, however, a person is appointed to office, either during a session or in a recess of the Senate, and dies before confirmation, his personal repre- sentatiA'es must be remitted to Congress for the payment of salary earned by such officer. (25 Op. Atty. Gen., 312. See also 23 Op. Atty. Gen., 413, concerning nunc pro tunc advance- ment of officers no longer in the naval service.) A retired officer of the Army who was placed on the retired list by the President, under the provisions of the act of April 23, 1904, with the rank and retired pay of the next higher grade, became entitled to the pay of the higher grade from the date he was appointed and confirmed to take the higher rank; and w^here the officer died after his advancement by the President but prior to the concurrence of the Senate, his heirs are entitled to the increased pay due him at the time of his death. (11 Comp. Dec, 693, following, 25 Op. Atty. Gen., 312, and citing 25 Op. Atty. Gen., 185 and 299.) A\^ere, under the pro\dsions of the act of April 23, 1904, a retired officer of the Army ia placed on the retired list with the rank and retired pay of the next higher grade, such in- creased pay attaches to said office from the date he was actually placed on the retired list, and neither requires an acceptance by the officer nor permits of a declination by him. This was not an appointment to a different office. The rank and pay of officers of the Army are subject to the control of Congress and such action cloea not require a new appointment by the Pres- ident. This is merely a change of rank and pay. "Wlien an officer is so placed on the retired list, the act of the President is complete and irrevocable. (11 Comp. Dec, 448.) An officer of the Navy was retired as a mid- shipman; by act of March 3, 1883 (22 Stat., 472), the title of the grade of midshipman was changed to that of ensign, constituting a junior grade, but without changing the rate of pay; by act of June 26, 1884 (23 Stat., 60, sec. 2), the grade of junior ensign was abolished, and it was provided that the junior ensigns then on the list should be commissioned as ensigns in the Navy. Held, that the act last cited op- erated to promote officers who had been retired in the grade of midshipman or of ensign (junior grade), to ensigns. (4 Comp. Dec, 628.) The advancement in rank of an officer on the retired list as a reward for civil-war service does not create or constitute an office and is not accomplished by an exercise of the appointing power. In this case there is rank and pay without the corresponding office. (25 Op. Atty. Gen., 312; 25 Op. Atty. Gen., 185.) Under a special act of Congress providing for the advancement on the retired list from a prior '!"+" -'to the next higher grade" of a chief date engmeer with the rank of captain, held, that since he already occupied the highest grade and rank as a chief engineer officer, '^it was not pos- sible to give him a higher grade in that corps, and in order to give any effect to the act it must be construed as authorizing an advancement of one grade in rank above that which he already occupied; accordingly, that this officer be- came entitled to the rank of rear-admiral from the date stated in the act, and to the pay of a rear-admiral of the lower half from that dale. (9 Comp. Dec, 515; see also 22 Op. Atty. Gen., 433.) Under the acts of March 3, 1899, section 11 (30 Stat., 1007), and June 29, 1906 (34 Stat., 554), authorizing the advancement under cer- tain conditions of any retii-ed officer who served during the civil war'to "the rank * * * of one grade above that actually held by him at the time of retirement," the officers affected should receive an increase in rank ; accordingly, where there exists more than one rank in the next higher grade, although the language is sus- ceptible of the meaning that the officer shall be given some one of the ranks in said grade and might be literally complied with, by giving him any rank of the higher grade although it might be no higher than that already held, the provi- sion manifestly intended an" advancement in rank and must be construed to reriuire that the officer be retired with a rank higher than that already held. (26 Op. Atty. Gen., 487.) Under the pro\'isions of the act of June 29, 1906, providing for the advancement of officers of the Navy not above the grade of captain, for civil-war service, an officer of a staff corps in the highest grade of his corps is entitled to the pay of the next higher grade in the line of the Navy. (13 Comp.^Dec, 617.) [Congress fi-equently does not observe the dis- tinction between "rank" and "grade" in legis- lating for the Navy. Thus, in the case of chaplains, Congress by act of June 29, 1906 (34 Stat., 554 ), as amended by act of June 30, 1914 (38 Stat., 404), provided for their promo- tion to the "grades" of lieutenant, lieutenant- commander, commander, and captain. In the case of II. n. Rousseau, who occupied the grade of ci\il engineer in the Navy with the rank of commander, Congress, by act of ]\Iarch 4, 1915 (38 Stat., 1191), proA'ided for his advancement from "commander" to the "grade" of rear- admii-al of the lower nine. In the case of Guy K. Calhoun, Congress, bj^ act of ]\ray 6, 1910 (36 Stat., 352), provided for his appointment as a professor of mathematics, and his subsequent promotion to the "grade" of lieutenant in the corps of professors of mathematics. By section 423, ReAdsed Statutes, Congress provided that the chief of the Bureau of Construction and Repair should be an officer not below the "grade" of commander and a "skillful naval constructor." Numerous other instances exist in the statutes in which "grade" is used in the sense of "rank." "The interchangeability of the words rank and grade throughout the stat- utes leads me to the conclusion that they are used synonymously, — especially when we find them, as in section 1588, connected by a dis- junctive, and with no indication that either shall control." (17 Op. Attv. Gen., 154.) See also 20 Comp. Dec, 199, "holding that the words "grade" and "rank" as used in the act of March 4, 1913 (37 Stat., 892), relating to pay on promotion, are interchangeable and the equivalent of "office," and that the advance- ment contemplated by that act is an advance- ment in office; and 19 Op. Atty. Gen., 171, 637 Sec. 145' Pi. 2. REVISED STATUTES. The Navy. wlu'ic use of word "tirade" in section 1480, Re- vised Statutes was held to be obvious error of the revisers; and see notes to sections 421, 422, 42;^ and VM)2, Revised Statutes. On the other hand Congress has repeatedly legishited withspecitic reference to the recognized dis- tinction between "rank" and "grade", as, for example, in the act of May 22, li)17, section 20 (,40 Stat., 89), providing that '-hereafter all laws relating to the examination of otticers of the Navy for promotion shall be construed to ap]ilv to the regular advancement of staff oflicers lo higher ranks on the active list the same as though such advancements in rank were promotions to higher grades."] When retirement or advancement on retired list takes effect. — See note to section 1144, Revised Statutes; see also note to section 1458, Revised Statutes, "Antedating rank on promotion." The retirement of an officer of the Navy, on his own application under section 1443, Re\'ised Statutes, becomes legally effective so as to create a vacancy on the active list to which a promotion may be made, upon the President's approval of the officer's application for retire- ment. (32 Op. Atty. Gen., 176; this is con- trary to the decision previously made by the Navy Department in the same case. See file 28687-22:3, Jan. 9, 1919.) The law does not recognize fractional parts of a day in the matter of retirements, promotions, aiul appointments in the Army. Vacancies caused by the retirement of officers from active service do not begin to run until the day fol- lowing the date their retirement becomes legally effective. (16 Comp. Dec, 682.) _ An officer of the Army who is retired is en- titled to the full pay of the active list until he receives notice of his retirement, unless receipt of such notice is prevented by his own act or default. (Dig. Comp. Dec, 170; 12 Comp. Dec, 628; file 26260-3237:1, Aug. 25, 1915; Comp. Dec, Aug. 21, 1918. Appeal No. 28230, file 28687-22:3.) An officer of the Marine Corps was found incapacitated for active service, resulting from an incident of the service. The finding was appro\ed by the President May 4, 1908. On May 1 1 , 1908, the following order was issued to him: "The President of the United States having placed you on the retired list of officers of the United States Marine Corps from and in- cluding May 4, 1908, you are hereby detached from Headquarters, United States Marine Corps, will proceed to your home, and report your arrival and address to this office. ' ' Held, that claimant having been placed on the re- tired list by order of the President on May 4, 1908, is not thereafter entitled to active-duty pay and allowances. Having been paid active- duty pay to and including May 11, 1908, the overpayment of difference between active- duty and retired pay from May 5, 1908, to May 11, 1908, shoula be disallowed. (17 Comp. Dec, 533. But see contra Dig. Comp. Dec, 170, 12 Comp. Dec, 628, and Comp. Dec, Aug. 21, 1918, noted above.) While in the case of an officer who resigns his commission it is necessary to communicate to him the acceptance of such resignation, yet the same conditions do not exist where a change of stains is uivolvcd, such as the transfer of an officer from the active to the retired list, and the fact is commuiiicalcd to the officer con- cerned only to inl'orm him that he hds been retired on or from a certain date. (File 26543- 62:1 Aug. 2S, 1911.) Under section 9 of the Navy personnel act of March 3, 1899 (30 Stat., 1004), a lieiitenant commander (Alfred A. Pratt) was designated for retirement by the Board for Selection for Retirement, convened on June 1, 1911. Said act provided that the findings of said board should be transmitted to the President, "who shall thereupon, by order, make the transfers of such officers to the retired list as are selected by the board." On July 3, 1911, the President approved the proceedings, findings, and recom- mendation of the board and directed that the officers selected, including Lieutenant Com- mander Pratt, "will be retired from active service in accordance with section 9 of the act approved I\Iar<'h 3, 1899, above referred to." Held that this action of the President had the effect of remo\'ing Lieutenant Commander Pratt from the active list, although not com- municated to htm, and accordingly that on the date of his death, July 4, 1911, he was no longer on the acti^'e list but was an officer on the retired list, and therefore the provision of law (act May 13, 1908, 35 Stat., 128) for the payment of a death gratuity to beneficiaries of officers who die while on the active list would not be applical>le to his case. It would seem, upon authority of 22 Op. Atty. Gen., 657, that Lieu- tenant Commander Pratt's retirement was effective from June 30, 1911, as section 9 of the Navy personnel act provided that "the promo- tions to fill the vacancies thus created shall date from the thirtieth day of June of the current year," but, irrespective of this, it is clear that his retirement was effective prior to his death, which occm-red after the President's action. (File 26543-62:1, Aug. 28, 1911. Retirements made under sections 8 and 9 of the Navy personnel act of March 3, 1899 (30 Stat., 1004), were legally effective on the thirtieth day of June of the current year, al- though the President's order approving such retirements may have been dated subsequent to June 30, and the Secretary of the Navy may have notified the officers concerned that they would be placed on the retired list from July 12. The intention of Congress was plainly ex- pressed in these two sections of the personnel act, that the vacancies provided for were to occur or be created for the fiscal year ending Jtme 30. If there were any doubt about this interpretation of the law, it would be removed by the provision in section 9, that "the promo- tions to fill vacancies thus created shall date from the thirtieth day of June of the current year." Tliis construction is not only warranted by the language of the law, but it conduces to a methodical and orderly administration of these sections. It results in making all the vacancies created under the provisions of the two sectioiis take effect on the last day of the fiscal year, and the promotions made to fill such vacancies go into effect on the day immediately following the last day of the fiscal year, viz, on the first day of July of the current year. Accordingly, held that the order of the President, though dated on July 1, 1899, had the effect to retire 638 The Navy. Ft. 2. REVISED STATUTES. Sec. 1457. Lieutenant Commander William H. Driggs on June 30, 1899, under the provisions of section 8 of the Navy personnel act of March 3, 1899, and thus create a vacancy for and within the fiscal year ending with that day, and that the promo- tion of Lieutenant Walter McLean to fill the vacancy thus created should date from said 30th day of June. In other words, his promo- tion and his commission in pm-suance thereof should bear date as of July 1, 1899; and he is entitled to the grade and rank indicated in his said commission, together with the emoluments attached, from and including that date. (22 Op. Atty. Gen., 657.) By special act of Congress, March 4, 1911 (36 Stat., 1346), it was provided: "That the Presiclent of the United States be, and he is hereby, authorized to place Ci^'il Engineer Robert E. Peary, U. S. Navy, on the retired list of the Corps of Ci^dl Engineers with the rank of rear admiral, to date from April sixth, nineteen hunched and nine, with the highest retired pay of that grade under existing law * * *." Pm-suant to this act the President commissioned Peary on March 13, 1911, as a civil engineer in the Navy', with the rank of rear admiral on the retired list from April 6, 1909, and it was held by the Comptroller of the Treasury, in a decision dated Jime 5, 1911 (17 Comp. Dec, 919), that he should be given the retired pay of a rear admiral under the act in his case from April 6, 1909, the date speci- fied therein. As to the date of the vacancy in the Corps of Civil Engineers created by Peary'g retirement, held that Mr. Peary was, in law and in fact, a civil engineer on the active list of the Na\y until March 13, 1911; that Con- gress did not by the above act effect any change in the status of Mr. Peary prior to its enactment; that Congress undoubtedly had the authority to pro\-ide that Peary should be treated as a retired officer ■n'ith the rank of rear admiral during the period from April 6, 1909, to March 13, 1911, but it could not, by legislative enactment, change thef act asit actually existed, that during aU of said period he was a ci^^.l engineer on the active list of the Navy (citing Potts V. U. S., 125 U. S., 173; Burchard v. U. S., 125 U. S., 176; 27 Op. Atty. Gen., 222; and file 26256-lOa, Jan. 25, 1909); and accord- ingly that the officers promoted because of the retirement of Civil Engineer Peary should be given the date of the vacancies caused by the actual retirement of that officer and not the date from which his retirement was made to take effect. Had Congress intended that the officers promoted to fiU vacancies caused by the retire- ment of Peary should be given the same date as that from which his retirement was made to take effect, it might easily have so stated in the act, as was done in section 9 of the Navy personnel act of March 3, 1899 (30 Stat., 1004), which pro\aded in express terms that "the promotions to fill the vacancies thus created shall date from the thirtieth day of June of the current year." By so doing Congress would have produced all the results which would have followed had Peary actually been retired on April 6, 1909; but even then the fact as it actually existed would not have been changed. Mr. Peary was not retired on April 6, 1909, and there accordingly existed no vacancy on that date by reason of his retirement, and nothing that Congress might say in an act passed nearly two years later could change this fact. (File 26255-83:4, Aug. 4, 1911, overruUng file 26255- 83:3, Mar. 25, 1911.) An officer of the Navy who, by authority of a special act of Congress, is placed on the retired list with the rank and highest rethed pay of a rear admiral from a prior date, is entitled to the retired pay of a rear admiral of the upper half from the date of his taking rank on the retired list, this being a higher rate than he has re- ceived. ^\^len Congress authorizes the dating back of a commission, it intends to give the officer pay from such date, imless otherwise expressed. (17 Comp. Dec, 919, citing Mc- Alpme V. U. S., 27 Ct. Cls., 493.) The advancement in rank of an officer on the retired list of the Army for civil-war service may be made to relate back to tlie date of the act authorizing such advancement. The gen- eral rule is that laws speak from the date of their enactment, and where something re- mams to be done (nomination and concurrence of the Senate) not inconsistent with a relation back when it is done, the general rule may be applied. (25 Op. Atty. Gen., 299.) In accordance with a special act of Congress approved January 30, 1903, the President by and with the advice and consent of the Senate appointed a designated person to the office of passed assistant engineer on the retired list of the Navy, from October 13, 1868. At the date of said act the officer was on the retired list of the Na^y as a second assistant engineer, hav- ing been so retired in 1873. Held, that in this case, while the commission pursuant to the special statute was dated in February, 1903, the appointment related back to October 16, 1868, and was a nunc pro tunc appointment, having the same effect as if the appointment had been made originally on that date. (9 Comp. Dec, 572.) A retired officer of the Navy, under a special act of Congress, was appointed to a higher grade on the active list and immediately transferred to the retired list with the retired pay of that grade. This did not effect a new retirement, nidUfying the original retirement, but merely effected an advancement on the retired list in ptursuance of the usual legislative method adopted for that pmpose. The obvious inten- tion, meaning, and effect of the act simply was to advance the officer already on the retired list one grade on that list. He is therefore debarred from the benefits of an act which ap- plies only to officers who have not received an advance of grade at or since the date of their retu-ement. (26 Op. Atty. Gen., 111.) \Miere an officer of the Army is retii-ed with the rank to which his seniority entitled him to be promoted, in accordance with the act of Oc- tober 1, 1890 (26 Stat., 562). his advancement in rank and retirement are, for practical purposes, simultaneous, for when the officer is retired he is also promoted, and it can not, therefore, be accurately described as '"an advance in grade since the date of his retirement." The use of the word " since" would be inappropriate when no appreciable period of time intervenes between the two events. The promotion of officers at the moment of retirement, under the 639 Sec. 1457. Pt.^. RE VI f^ ED STATUTES. The Navy. act of October 1, 1890, can hardly be said with projirioty to be a favor. They would have been ontitled to the same ])romotion on the active list but for cause.'' creditable to them and establishiuir a claim to the country's fjratitude, wliich operated to prevent such ]>romotion. By iriviu,::; the promotion at the moment of or as an incident to retirement, the (Jovernment is just rather than generous. Accordinu'ly, held that the otlicers in question did not receive an advance of srrade since the date of their retire- ment, but are entitled to the benefits of the act of April 23, 1904 (33 Stat. 264), relating to ad- vancement on the retired list for civil-war service. (27 Op. Atty. Gen.. 212, overruling 25 Op. Attv. Gen.. 158, which was atl'irmed in 25 Op. Atty. Gen.. 514, both of which latter opinions are noted below.) An ofhcer who fails physically upon examin- ation for j)romotion aTid is retired with the rank to which his seniority entitled him to be pro- moted, in accordance with the act of October 1, 1890 (26 Stat., 562), thereby receives an ad- vance of grade after the date of his retirement, and is accordingly. excluded from the benefits of a statute which is restricted in its application to an oflicer who has not "received an advance of grade since the date of his retirement." (25 Op. Atty. Gen., 158; overruled by 27 Op. Atty. Gen., 212, noted above.) The act of October 1, 1890, does not authorize the advancement of an oflicer found physically disqualified to the next higher grade on the active list, and his retire- ment, after having been so advanced, with the rank of such higher grade. (25 Op. Atty. Gen. , 514, affirming 25 Op. Atty. Gen.. 158. which was subsequentlv overruled by 27 Op. Atty. Gen., 212.) An officer of the Na^^ examined for promo- tion who fails physically and is retired, is prop- erly given the rank of the higher grade on the retired list, under the act of March 4, 1911 (36 Stat., 1267), from the date of the vacancy to which he would have been promoted on the active list, if qualified. (File 27231-89, Apr. 19, 1917.) The same rule has been applied to the retirement of officers of the Marine Corps under the same conditions. (File 26260-3237:1, Aug. 25, 1915; C. M. O. 29—1915. p. 9; see also file 26260-3604:2, Oct. 16. 1916.) However, date of rank should not be changed where already fixed under a different rule prcAdously existing. (C. M. O. 35—1915. p. 11; file 27231-89, Apr. 19. 1917.) The actual retirement of an officer who fails physically in line of duty upon examination for promotion should not take place before the occurrence of the vacancy to which he would have been promoted if qualified , he having been examined prior to the existence of the vacancy. (File 26260-1658, May 6, 1912, case of First Lieut. E. S. Yates. U. S. U. C.) Action of the President is necessary before the retirement of an Army officer can be made ; the provision of the act of February 2, 1901, section 32 (31 Stat., 756). that "if upon examination the officer be found disqualified for promotion, he shall, upon the approval of the proceedings by the Secretary of War, be treated in the same manner as if he had been examined prior to promotion '' does not have the effect of depriv- ing the officer of the difference between retired pay and active-duty pay from the date of the vacancy to which he would have been promoted had he successfully passed the examination. In this case the officer, a second lieutenant, was retired with the rank of first lieutenant on March 15, 1906, "to date from June 18, 1904," the date he would have been promoted to the grade of first lieutenant had he been found qualified. (12 Comp. Dec, 628; file 26260- 3237:1, Aug. 25, 1915.) Bank on retirement of oflBlcer holding recess appointment. — The acf^eptance by an Army officer of a recess appointment is pro- visional only and leaves to the officer a rever- sionary right to his former office in case his new appointment is not confirmed by the Senate. An Army officer who accepts a recess promotion and thereafter becomes eligible for retirement by reason of age before theadjournment of Con- gress and before the appointment is acted upon by the Senate, is entitled to the rank of his new appointment. (29 Op. Atty. Gen., 598. See also note to sec. 1458, R. S., "Status of officer pending confirmation by Senate of his promo- tion.") Rank on retirement of officer failing to quaUfy for promotion. — The privilege which an oflicer has of retirement "with the rank to which his senioritv entitles him to be pro- moted," given by the act of October 1, 1890 (26 Stat., 562), is limited to cases where the oflicer fails in his physical examination only. (Stein- metzi;. U. S., 33 Ct. Cls.. 404.) Under the clause in the act of March 4, 1911 (36 Stat., 1267), pro\idinw that officers of the Navy who fail physically, in line of duty, upon examination for promotion, shall be retired with the rank to which their seniority entitled them to be promoted. Held, that an ensign examined for promotion to lieutenant (junior grade), found not physically qualified, and subsequently ordered to appear before a retiring board, which latter board finds him incapaci- tated by reason of physical disability incurred in line of duty, should be retired in the rank of lieutenant (junior grade), although in the mean- time a vacancy occurred in the grade of lieu- tenant to which he would have been entitled to promotion by seniority had he qualified but for which he was never examined or ordered up for examination. (File 26253-200:1, Feb. 17, 1912.) It may be true that if Ensign Allen had qualified for promotion to lieutenant (junior grade) and been commissioned in that grade, he would have become the senior lieutenant (jimior grade) and thereby entitled to the vacancy in the grade of lieutenant, provided he qualified therefor. But the fact remains that Ensign Allen never qualified for the grade of lieutenant (junior grade), and was never com- missioned therein, and the question of his rights if he had so qualified and been promoted cannot now be considered. Never having occu- pied a position in the grade of lieutenant (jtm- ior grade) on the active list, it follows that he never acquired' seniority in that grade. The fact is, at the time the vacancy occurred in the grade of lieutenant to which it is suggested he was entitled to promotion by seniority, there were officers in the grade of lieutenant (junior grade) senior to Allen, who was then only in the grade of ensign, notwithstanding that he 640 The Navy. Ft. 2. REVISED STATUTES. Sec. 1457. would have become senior to them had he been promoted to the gi-ade of lieutenant (jimior grade). (File 26253-200:1, Feb. 17, 1912). A captain in the Na^^, found disqualified by reason of physical disability contracted in the line of duty, upon examination for promo- tion by seniority to the grade of rear admiral, and retired in accordance -with the pro\-isiona of the act of March 4, 1911, is entitled to the retired pay of a rear admkal of the lower half only, not^\•ithstanding that, had he been quali- fied for promotion and actually been promoted, he would have been, at the time of his retire- ment, a rear admiral of the upper half. (22 Comp. Dec, 671). It may be true that if Captain Tappan had been found qualified on examination he would have been promoted to the grade of rear admiral, and by the time of his retirement would have been entitled by seniority to be a rear admii'al of the upper half. But as a matter of fact he was not found qualified on examina- tion. He never attained the rank of rear ad- mu-al of the lower half on the active list, and therefore never acquired by seniority the right to be promoted to rear admu'al of the upper half. The seniority of Capt. Tappan entitled him to be promoted to the next higher grade or rank; the next -higher grade or rank to that of captain in the Na-s-y is rear admiral of the lower half (citing Gibson v. U. S., 194 U. S., 182). (22 Comp. Dec, 671; Tappan v. U. S., 54 Ct. Cls., 76.) The "seniority" to which the ofiicer is en- titled is that of the rank for which, upon "examination for promotion," he has been "found incapacitated for serA-ice by reason of physical disability contracted in the line of duty." The grade or rank for promotion to which the officer has been foimd physically disqualified upon his examination is the only one within the intent of the law to which he is entitled to be promoted. Not only seniority for a particular gi'ade but also the finding of an examining board that the officer is not physi- cally qualified for that very grade, are both requisite to entitle him to retkement in such grade. (File_26253-200:1, Feb. 17, 1912.) A captain in the Marine Corps became due for promotion to the grade of major from Aug- ust 29, 1916, by reason of the naval appro- priation act of that date which created a number of original vacancies in the various grades of the Marine < 'orps. He failed physi- cally for promotion and was retired. In the meantime, an officer in the grade of major failed upon examination for promotion to the grade of lieutenant colonel, to fill a vacancy created in that grade on August 29, 1916. Had the captain been promoted to the grade of major, he would have been number one in that gi'ade and would thus have become due by seniority for promotion to the grade of lieutenant colonel from August 29, 191^6, to fill the vacancy for which his senior had failed to qualify. Held, that under the act of October 1, 1890, made applicable to the I^Iarine Corps by act of July 28, 1892, the captain mentioned was entitled by reason of his seniority to be retired with the rank of major and not ^vith the rank of lieutenant colonel. (File 26260-3604:2, Oct. 16, 1916). A passed assistant pajonaster was examined for promotion to the grade of paymaster, and found not physically qualified, which finding was approved by the President February 10, 1916. The candidate was then ordered before a retiring board, which found him incapaci- tated, due to disability incurred in line of duty, which finding was approved by the President March 14, 1916. Under the act of l^Iarch 4, 1911, he became entitled on retirement to the rank to which his seniority entitled him to be promoted. In the grade of paymaster there were the ranks of lieutenant and lieutenant commander. Under the law as it then stood staff officers were examined for promotion in grade, without regard to the rank which they would receiie on promotion, the rank being governed by the status of the line officer next after whom they took precedence. Usually, if qualified, the officer's rank on promotion would be the lower rank in the upper grade. However, where his examination was delayed it might happen that the officer, if qualified, would on promotion be entitled to the higher rank in the grade to which promoted. In thia case, on the date that the otficer became due for promotion, he would have been entitled, if promoted, only to the rank of lieutenant, but by reason of delay in his examination, on February 10, 1916, the date on which he was found not physically Ciualified for promotion, he would have been entitled, if promoted, to the rank of lieutenant commander in the grade of pa\Tnaster, that being the rank of his "run- ning mate" in the line. Held, that the rank to which his seniority entitled him to be pro- moted, within the meaning of the act of March 4, 1911, was the rank of lieutenant commander, and accordingly that this offi- cer should receive that rank on the retired list. (File 26253^65:2, Mar. 16, 1916). For other cases, see above, "WTien retire- ment or advancement on retired list takes effect," and see 21 Op. Atty. Gen., 385, noted under section 1448, Revised Statutes, "Physical examination for promotion not sufficient for retirement." Restoration of retired officer to active list.^See section 1465, Pevised Statutes, and note thereto; see also note to section 1459, Revised Statutes. Status of officer illegally retired. — An officer whose name is placed on the retired list of the Army by the Secretary of ^^'ar, in ap- parent compliance with jirovisions of law, is an officer de facto if not de jure, and money paid to him as salary can not be recovered back by the United States. (Badeau v. U. S., 130 U. S., 439.) Correction of erroneous retirement. — See notes to sections 1408, 1452, and 1454, Revised Statutes. The President has no power to correct the retirement of an oflicer so as to give him in- creased rank from the date of his original re- tirement, where the law which is claimed to entitle the officer to the higher rank has been repealed: mistakes, if any, made in the execu- tion of an act which is subsequently repealed, can not be rectified bv executive action after such repeal. (17 Op.' Atty. Gen., 60.^ 641 Sec. 1457. PL 2. RF. VISED STATUTES. The Navy. Where an officer was found incapacitated for active service by reason of wounds received in battle, and the President directed that, in accordance with such Jindin?, he be placed on the retired list of the Army with the hii^her rank to which such disability entitled him: Udd, that the President had the right to revoke said order before it was actually executed and before it had reached the olficer concerned, it appear- ing that the officer's disability was not caused by wounds received in battle; held further, that e^ en had the original order been executed and delivered to the officer and his name placed on the retired list with increased rank, it would be the duty of the President to correct such action and place the officer on the retii'ed list with the actual rank which he held at the time of retirement. (17 Op. Atty. Gen., 7, construing act July 28, 1866, sec. 32, relating to the Army.) On Februarj^ 22, 1869, by direction of the President, Paymaster Gen. Benjamin W. Brice was retired from active service, and on the same day Asst. Paymaster Gen. Nathan W. Brown was nominated to be Paymaster General vice Brice, retired; Deputy Paymaster Gen. Hiram Leonard to be Assistant Paymaster General vice Brown, promoted; Paymaster Benjamin Alvord to be Deputy Paymaster General, \dce Leonard, promoted; and Virgil S. Eggleston to be pay- master, vice Alvord, promoted. On March 3 the Senate adAdsed and consented to the ap- pointment of Eggleston to be a paymaster in the Army. The nominations of the others were not consented to by the Senate. On March 5, by direction of the President, the order placing Paymaster Gen. Brice upon the retired list was revoked, and he was to be considered as on duty as Paymaster General from February 22, the date of his retirement. Held, that there was and is no vacancy in the office of pay- master to which Eggleston could be appointed, as Alvord was not removed from the office of paymaster unless he was appointed Deputy Paymaster General, and had accepted the ap- pointment, and he was not so appointed, as the Senate had not advised and consented thereto, and the law provides that no officer in the Army shall, in time of peace, be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect or in commutation thereof. (13 Op. Atty. Gen., 44; but see 23 Op. Atty. Gen., 30, noted under sec. 1363, R. S., "Effect of nomination and confirmation of an officer for appointment to grade already full.") The retirement of an officer of the Marine Corps on furlough pay, under section 1454, Revised Statutes, was in error, as said section does not apply to the ^larine Corps. Accord- ingly, so much of the President's order relating to this officer's retirement, as provided that he should receive only furlough pay, must be treated as of no effect. (15 Op. Atty. Gen., 442.) Executive orders accomplish retirement only as they apply to particular cases and when not in conflict with the law. It is the law which gives the right, which fixes the officer's status, and consequent pay, and not the recommenda- tion of a retiring board, even though supple- mented by orders which have met the approval of the President. And where the decision will turn exclusively upon the proper construction of a statute, an executive order is not final nor binding on the court. (Cloud r. U. S., 43 Ct. Cls., 69.) The refusal of the head of the administrative department to recognize a retired officer as of the rank to which he is entitled by law, does not deprive the Court of Claims of jurisdiction toallowthe officer the pay of such rank. (Cloud V. U. S.. 43 Ct. Cls., 69.) Courts can not order retirement of oflB.cers. — Where an officer of the Army has been examined for promotion, and upon failure to qualifyis honorably discharged from the serv- ice, the courts are without jurisdiction to order him placed on the retired list upon his petition setting forth that he had been found by a board physically incapacitated for serAice and that he was thereby entitled to be retired and entitled to retii'ed pay during life, instead of being dismissed with one year's pay. The report of the board is not final, but must be approved or disapproved by the President. This is the only relief from the errors or injus- tice that may be done by the board which is provided . The courts have no power to roAiew. The courts are not the only instrumentalities of the Government. They can not command or regidate the Army. To be promoted or re- tired may be the right of an officer, the value to him of his commission, but greater even than that is the welfare of the country, and it may be, even its safety, through the efficiency of the Army. (Reaves v. Ainsworth, 219 U. S., 296.) Where it was provided by law that retired officers who served during the ciAdl war should be entitled to the rank and retired pay of the next higher grade, and the Navy Department decided that a particular officer was not en- titled to the benefits of the act, a decision of the Court of Claims (Moser v. U. S.. 42 Ct. Cls., 86), holding that the officer was entitled to the re- tired pay of the next higher grade, and pur- porting to decide that he was also entitled to the rank of such grade, does not estop the Sec- retary of the Na\'y from contesting the officer's claim to the rank of such higher grade. (28 Op. Atty. Gen.. 352; Moser r. Meyer. 38 App. D. C, 13.) For other cases, see note to section 417, Re- vised Statutes. Authority of the Secretary of the Navy to determine grade of retired oflB.cer.— WTiatever, if any. duty the Secretary of the Navy has about the matter of placing names upon the retired list, it is not that he liimself shall settle the question of grade or of retire- ment, but after a determination of those ques- tions by the President, with whom they lie, to give effect to his directions. Should the Presi- dent in fact retire an officer with a certain grade, and the Secretary of the Navy decline to enter the name of the officer upon the list as of that grade, there might be room to make a good argu- ment showing that his duty to do so was minis- terial and ought to be controlled by mandamus ; but when the President retires one with a cer- tain grade, or in a certain grade, there isno where in the law any authority at all for the placing of that name on the retired list as of another or dif- 642 The Navy. Pt.2. REVISED STATUTES. Sec. 1457. ferent grade. (Moser v. Meyer, 38 App. D. C, 13.) An officer was retired pursuant to the express direction and approval of the President, who by order did retire the officer as a captain of the Navy, and at no time at or since such retirement did the President confer a higher rank or office upon said officer. The President, then, having actually retired the officer with the grade of captain, it can not be said that there rested upon the Secretary of the Navy a duty to accord to the officer upon the Navy Register a different grade. In short, the position of the officer comes to no more than this; that he has been retired by the President with the grade of cap- tain, while he conceives himself to be entitled to retirement with the rank of rear admiral; he asks that the Secretary of the Navy be re- quired, through the writ of mandamus, to place his name upon the retired list with the rank of rear admiral, which the President declined to accord him. For this, there is neither duty, authority, nor power in the Secretary of the Navy; therefore, no room for a mandamus to go. (Moser v. Meyer, 38 App. D. C, 13.) Physical examination for promotion not sufficient for retirement. — See note to section 1448, Revised Statutes. Difference between retirement and waiting orders. — There is a well-recognized distinction between "retirement" and "wait- ing orders" (see sees. 1443, et seq.; sec. 1556); and an officer [Revenue-Cutter Service — now Coast Guard] placed on "permanent waiting orders " was not thereby retired. (21 Op. Atty. Gen., 286; see also 11 Comp. Dec, 762.) Difference between retirement and dis- charge. — An Army officer by his retirement is not discharged from service or out of the serv- ice. (U. S. V. Gillmore, 189 Fed. Rep., 761.) For other cases, see above, " Status of retired officers; part of the Navy." Residence of retired oflacer. — A retired officer of the Navy or Marine Corps is not required to remain at his official residence; he may go at his pleasure to any point within the United States, or travel from point to point, the only requirement being that he keep the Navy Department advised of his present address, his official residence remaining as recorded at the Department. Under the Navy Regulations he is not authorized to change his official residence without permission of the Bureau of Navigation. A retired officer of the Marine Corps relieved from duty and ordered to his home is entitled to mileage only from the place he is relieved from duty to his official residence. (17 Comp. Dec, 952.) There is no law or regulation which limits the selection of the home of an officer on retire- ment from active service to a place within the continental limits of the United States. (18 Comp. Dec, 638.) The Army mileage law of June 12, 1906 (34 Stat., 246), which provided "that when the station of an officer is changed while he is on leave of absence he will, on joining the new station, be entitled to mileage for the distance to the new station from the place Avhere he received the order directing the change pro- viding the distance be no greater than from the old to the new station; but if the distance be greater he will be entitled to mileage for a distance equal to that from the old to the new station only, " is applicable in principle to the mileage of an Army officer placed on the retired list and ordered to his home, M'here he selects a home abroad. (18 Comp. Dec. , 634.) When an officer is retired and ordered to proceed to his home, if the order is not obeyed within a reasonable time it loses its character as an order to travel on public business, and if the travel is subsequently performed, it is at the officer's pl,teasure and convenience, and hot under orders within the meaning of the statute allowing mileage. (13 Comp. Dec, 112.) As to status of retired officer residing abroad, with reference to acts by him amounting to expatriation or abandonment of his office in the U. S. Navy, see note to section 1428, Revised Statutes. A retired officer who resides at a place where it is inconvenient or impossible for him to receive his pay in person must, in the discre- tion of the disbursing officer on whose roll he is carried, furnish evidence of his right to receive his pay in accordance with Art. 1338, Navy Regulations, 1909 [Art. R-4385, Navy Regs., 1913]. (File 27231-26.) Retired officer cannot be appointed to office limited to active list.^The permanent designation of the superintendent of the State, War, and Navy Building is an imjjerative order to continuous duty, and this is quite incompatible with the selection of a retired officer, who ia generally exempt from such orders. It cannot be held that the act author- ized an appointment, which is an order from which such officers were exempt. It is easy to see here that the fact that the duties imposed upon this superintendent require for their performance an officer fully qualified for active duty is a sufficient reason why this appointment was requiied to be made from the active list, and not from those who have already passed the period of their full usefulness and have on that account been retired from active service. (25 Op. Atty. Gen., 508.) For other cases, see notes to sections 421, 1225 and 1462, Revised Statutes. Retired officer holding position as Con- gressman. — The question whether a Con- gressman can receive pay as a retired Army officer is one of grave doubt, which only a determination of the Supreme Court can satisfactorily settle. (20 Op. Atty. Gen., 686; see also file 27231-74, May 12, 1916.) Veto of bill to make retired officers of Army not amenable to court-martial. — "The original act establishing the retired list of the Army (act of Aug. 3, 1861), referred to the personnel therein included as only partially retired, and provided that a retired officer should be entitled to wear the uniform of hia grade, should be borne on the Army Register, and should be subject to the rules and Articles of War, and to trial by general court-martial for any breach of these articles. By the act of July 24, 1876, officers of the Army on the retired list were specifically declared to constitute a part of the Regular Army, a provision which is found repeated in subsequent acts affecting the organization of the Army; and other stat- 643 Sec. 1457. Pt. 2. REVISED STATUTES. The Navy. utcs enacted during this period jnade retired officers of the Army available for certain classes of active duty, in time of peace with their con- sent, and in time of war A^'ithout their consent. By the recently enacted National Defense Act, the authority of the President over retired offi- cers has been further extended, so as to make thera 8ul)jcct to his call in time of war for any kind of duty witliout any restriction whatever. Courts and Attorneys-General have, in a long line of decisions, lield that officers of the Army on the retired list hold public office. It thus appears that both the legislative and judicial branches have drawn a sharp distinction in status between retired officers, who are regarded and governed at all times as an effective reserve of skilled and experienced officers and a poten- tial soui'ce of military strength, and mere pen- sioners, from whom no further military service is expected. Officers on the retired list of the Army are officers of the Army, members of the Military Establisliment distinguished by their long 8er\'ice, and, as such, examples of dis- cipline to the officers and men in active service. Moreover, they wear the uniform of the Army, their education and ser\dce hold them out as persons especially qualified in military matters to represent the spirit of the Military Estab- lishment, and they are subject to active duty in time of national emergency by the mere order of the Commander-in-Chief. They are, therefore, members of the Army, officers of the United States, exemplars of discipline, and have in their keeping the good name and the good spirits of the entire Military Establishment before the world. Occupjing such a relation, their subjection to the rules and Articles of War and to trial by general court-martial have alwa\s been regarded as necessary, in order that the retired list might not become a source of tendencies which would weaken the dis- cipline of the active land forces and impair that control over those forces which the Con- stitution vests in the President. '■ The purpose of the Articles of War in times of peace is to bring about a uniformity in the application of military discipline which will make the entire organization coherent and effective, and to engender a spirit of coopera- tion and proper subordination to authority which vrill in time of war instantly make the entii-e Army a unit in its purpose of self-sacrifice and devotion to duty in the national defense. These purposes can not be accomplished if the retired officers, still a part of the Military Estab- lishment, still relied upon to perform important duties, are excluded, upon retirement, from the wholesome and unif>dng effect of this sub- jection to a common discipline. I am per- suaded that officers upon the retired list would themselves regard as an invddious and unpal- atable discrimination which in effect excluded thera from full membership in the profession to which they have devoted their lives, and in which by the laws of their country they are still members. So long as Congress sees fit to make the retired personnel a part of the Army of the United States, the constitutionality of the proposed exemption of such personnel from all liability under the Articles of War is a matter of serious doubt, lea\-ing the President, as it does, %vithout any means sanctioned by statute of exercising over the personnel thus exempted the power of command vested in him by the Constitution. "Convinced, as I am, of the un^\'is(lom of this provision and of its baneful effect upon the discipline of the Army; doubting, as I do, the power of Congress wholly to exempt retired officers from the control of the President, wliile declaring them to ])e a part of the Regular Army of the United States, I am constrained to return this bill without my approval." (Veto mes- sage of President Wilson, Aug. 18, lOlG, 53 Cong. Rec, 14950.) "Navy Register," history and definition of, etc. — "An exhaustive research has failed to disclose any statute requiring the publication by the Secretary of the Navy of a Na\y reg- ister. Many references are found in the laws to the 'Navy register,' or to the 'official Navy register,' or 'official register of the Navy,' etc. Thus the act of June 29, 1906 (34 Stat., 554), provides for the advancement in rank and pay of officers who served during the civil war. One of the conditions of such advancement, as stated in this act, is that the officer's name must be 'borne on the official register of the Na\'y.' The act was nevertheless held to apply to mates, whose names are not included in the published Navy Register, as that publication includes only 'commissioned and warrant officers of the United States Navy^ and ]\Iarine Corps,' and mates do not come within these designations. In connection with the cases of mates, it was decided that the 'official reg- ister of the Navy' was the official record or register of officers of the Navy kept in the Bureau of Navigation, and not the published register. This seems to be the obvious con- struction of the expressions referring to the Navy register which are found in the various acts of Congress, and laws requiring the Secre- tary of the Na\y to enter certain officers' names on the Navy register, or to omit certain other names from the Na\-y register, are not, therefore, construed as requiring the pubJicn- tion of such a register." (File 27231-8, Feb. 7, 1911.) "An examination of the records discloses that lists of officers of the Navy, mth certain information pertaining thereto, were sent to the respective houses of Congress at various times in pursuance of resolutions, one of which was House of Representatives resolution of January 23, 1812 (Annals of Congress, 12th Cong. 1st sess. pt. 1, p. 929), which read as follows: 'Resolved, That the Secretary of the Na\y be directed to lay before this House a statement of the names, rank, pay, and rations of the commissioned officers and midshipmen belonging to the Navy of the United States.'/' (File 27231-8, Feb. 7, 1911.) "Reference is next found to a resolution of the House, dated March 3, 1813, reading as follows: 'Resolved, That the Secretary of the Navy be, and he is hereby, directed to report to this House at the next session of Congress astatementof the number of * * * officers in the naval service of the United States, their rank, pav, and employ.' " (File 27231-8, Feb. 7, 1911. )" [ ■ ' There appears to have been a Senate reso- lution, dated August 2, 1813, on this subject. 644 The Navy. Pt.2. REVISED STATUTES. Sec. 1457. but I have been unable to locate a copy thereof." (Memo, of J. A. G., Feb. 7, 1911, file 27231-8).] "Next in order is Senate resolution of December 13, 1815, as follows: 'Resolved, That the Secretary of War and the Secretary of the Navy be requested to furnish annually, on the first of January, each Member of the Senate with a copy of the Register of the Officers of the Army and Navy of the United States." — Annals of Congress, 14th Congress, 1st session, 1815-16, pages 21, 22." (File 27231-8, Feb. 7, 1911.) ' ' Following this resolution [last above quoted] the Na\y Register appears to have been printed annually, 'by order of the Secretary of the Navy,' and, as late as 1860, it was stated on the title page of the Register 'Printed by order of the Secretary of the Navy, in compliance with a resolution of the Senate of the United States of December 13, 1815.' " (File 27231-8, Feb. 7, 1911.) "The duty of printing the Navy Register and furnishing one copy to each Member of the Senate is not now required of the Secre- tary of the Na\'y, as, by act of January 12, 1895, entitled 'An act pro\T.ding for the public printing and binding and the distribution of public documents (28 Stat., 601), provision is made for the printing and distribution of the Navy Register as a public document by the 'Joint Committee on Printing.' Section 1 of the act cited reads as follows: 'That there shall be a joint committee on printing, con- sisting of three Members of the Senate and three Members of the House of Representatives, who shall have the powers hereinafter stated.' Section 54 of this act provides: 'WTienever any document or report shall be ordered printed by Congress, such order to print shall signify the "usual number" of copies for binding and distribution among those entitled to receive them. No greater number shall be printed unless ordered by either House, or as herein- after provided. ^Tien a special number of a document or report is ordered pi'inted, the usual number shall also be printed, imless already ordered. The usual number of docu- ments and reports shall be one thousand six hundred and eighty-two copies, which shall be distributed as follows: * * *.' And section 73: 'Extra copies of documents and reports shall be printed promptly when the same shall be ready for publication, and shall be bound in paper or cloth as directed by the Joint Committee on Printing, and shall be of the number following in addition to the usual number: * * * Of the Registers of the Army and Navy, fifteen hundred copies of each; five hundred for the Senate and one thousand for the House.' " (File 27231-8, Feb. 7, 1911.) "It does not appear from any of the fore- going that the secretary has ever been required by law to 'publish' an annual Navy Register. At one time he was requested by the Senate to furnish each of its members, annually, with a copy of the 'Register of the Officers of the * * * Na\'y of the United States,' in com- pliance with which request the Navy Register was printed annually and the necessary number furnished to the Senate. Now, however, it is no longer required of the Secretary of the Navy to print any copies whatever of the Navy Register, as the printing thereof comes under the Joint Committee on Printing and the Public Printer. The most that is required of the Secre- tary of the Navy is to furnish Congress with a list of the officers of the Navy and I^Iarine Corps, after which the matter passes out of the Secre- tary's hands and the printing is done under the direction of Consjress through its joint commit- tee." (File 27231-8, Feb. 7, 1911.) The "Oflicial Register of the United States" is published by the Director of the Census in pursuance of the act of June 7, 1906 (31 Stat., 219). and contains a list of "persons in the civil, military, and naval service of the United States, and list of vessels. ' ' The Director of the Census is the only oflicial expressly required by law to publish an official register of persons in the naval service. (File ^27231-8, Feb. 7, 1911.) The judiciary will not, by mandamus, com- pel the Secretary of War to change the position of an officer's name in the Army Register, even though it be conceded that an error exists therein. (Edwards v. Root, 24 App. D. C, 419, 431; as to the Navy, see file 27231-8, Feb. 7, 1911, and Moser r. ]\leyer, 38 App. D. C, 13). "The mere designation of lineal or relative rank in the Official Army Register does not fix and determine his rank in the Army and his right to promotion. That right depends upon other conditions. It is true the Official Army Register, is an official record of the War De- partment, that furnishes evidence of the rank and status of officers in the various grades and classes of the officers in the Army organization ; but it does not per se establish and determine any right to particular rank, much less to promo- tion. This latter rank depends upon quite different conditions, and apart from the evi- dence furnished by the Official Army Register. Promotion in a certain sense is a new appoint- ment, and, to the position of captain, can only be effected by the nomination of the President, with the advice and consent of the Senate. The mere entry, therefore, in the Official Army Register of the name and rank of the appellant would not operate to entitle him to or to con- trol such promotion. That must rest primarily in the judsiment and' discretion of the Presi- dent." (Edwards v. Root, 24 App. D. C, 419, 431; see file 27231-8, Feb. 7, 1911.) In the published Navy Register "various methods are adopted to indicate the rank of oflicers whose rank is higher than that belong- ing to their grade. Thus, in the case of officers on active duty, serving as chiefs of bureau and as Judge Advocate General, the higher rank held by them under their commissions as such chiefs of bureau or Judge Advocate General ia indicated merely by a footnote, the names of such officers being placed in their regular places in their respective grades. Thus * * * an officer of the Navy on the active list, whose actual grade is that of captain, but who has the rank of rear-admiral while serving as ( 'hief of the Bureau of Navigation, is placed in his regular position in the grade of captain in the Navy Register, and not placed in the grade of rear-admiral, an appropriate footnote being made to indicate his higher rank. In the case 645 Sec. 1458. Pt.S. RE VISED STAT UTES . The Navy. of a large number of retired officers, whose grade on the active list was that of cai)tain, but who were given the rank of rear-admiral on the retired list bv reason of ci\dl-war serAdce their names are collected under the heading 'Rear- Admirals,' and the fact that they enjoy a higher rank than that belonging to their grade on the active list is indicated by a letter of the alpha- bet in a column under the heading ' Law govern- ing retirement.' On the other hand, there are a number of officers whose actual grade is that of mate, but who have the rank of warrant oflicer on the retired list because of ci\dl-war service. Their names will be found on page 158 of the Register for 1910, under the heading of ' Mates' and not ' Warrant Oliicers. ' In their cases, however, there is a subheading reading ' Rank of Warrant Officer. ' This latter method is followed in the case of the various staff officers who received the rank of a higher grade on retire- ment, as, for example, in the case of ^ledical Director Francis M. Gunnell, whose name is printed under the heading of 'Medical Direc- tors' with a subheading, 'Rank of Rear Ad- miral,' and not under the heading of Rear- Admirals. In the cases of mates and certain staff officers, it was specifically held by the Attorney General in several published opinions that these officers did not obtain an advance in grade by \-irtue of their ci\dl-war service, but retained their old gi-ade with the addition of a higher rank. This, however, w^as merely the application to certain specific cases of general principles already well understood." (File 27231-8, Feb. 7, 1911.) Formerly the register of officers of the Navy, kept in the Na^^ Department, was kept in bound record books, and after the name of an officer was once entered in the book, its posi- tion was not changed , but changes in his rank were indicated by notation on the page where his name appeared. It follows that there was no list of rear admirals, or list of captains, kept in the department, nor list of retired officers, as, even after retirement, the officer's name and record was kept in the same position. Refer- ences in acts of Congi'ess which would indicate that the names of officers were kept by rank, and retired officers placed in a separate list, may be explained on the ground that Congress was not informed as to the method in which the ofticial register was kept in the Navy De- partment. Now, the register of officers is kept by the card-index system, the positions of the cards being changed upon corresponding changes in the officer's rank. Under this arrangement, the names of retu'ed oftlcers are kept in a separate place, but the cards in their cases are arranged al])habetically, instead of by rank as in the case of officers on the active list. (File 27231-8:8, Mar. 9, 1911.) The Secretary of the Navy is not reqvured to publish a Navy Register at all. For a num])er of years prior to and including the year 1907, such a register was published semiannually by the Navy Department, on the first day of January and July, respectively. In the July register, the names of retii'ed officers were omitted altogether, with the exception of such retired oilicers as were employed on active duty. Beginning with 1908 the publication of a register in July has been omitted. The pub- lication of a register in January could also be omitted, should the Secretary of the Navy so decide. There is also a Navy Register or di- rectory" published monthly by the Navy Department, and in this register the names of aU officers are alphabetically arranged, whether on the active or retired list. The names of officers could be so arranged also in the annual register, should the Secretary of the Navy so decide, as there is nothing in the law which requires him to publish any officer's name in any particular list. (File 27231-8:8, "Notes upon argument of Mr. George A. King, for peti- tioner. Mar. 10, 1911," in case of United States of America ex rel. Jefferson F. Moser v. George von L. Meyer, Secretary of the Navy. At Law, No. 53302, Supreme Court of the District of Columbia. ) Sec. 1458. [Vacancies filled by promotion according to seniority.] The next officer in rank shall be promoted to the place of a retired officer, according to the established rules of the service; and the same ride of promotion shall be appUed successively to the vacancies consequent upon the retirement of an officer.— (3 Aug., 1861, c. 42, s. 22, v. 12, p. 291. 21 Dec, 1862 [should be "1861"], c. 1, s. 6, V. 12, p. 330.) Amendment to this section was made by act of August 29, 1916 (39 Stat., 578), which pro- vided that all promotions to the grades of rear admiral, captain, and commander, in the line of the Navy, should be made by selection only, from the next lower re- spective grade. By act of July 1, 1918 (40 Stat, 718), advancement by selection to the ranks of rear admiral, captain, and com- mander was extended to the Staff Corps of the Navy. Pay of officers on promotion, see section 1561, Revised Statutes, and act of March 4, 1913 (37 Stat., 892). Promotion by seniority in the Army was pro- vided for by section 1257, Revised Stat- utes, and act of October 1, 1890, section 3 (26 Stat., 562). Promotion by seniority in certain Staff Corps of the Navy was specifically provided for by section 1480, Re\'ised Statutes, as amended by act of February 27, 1877 (19 Stat., 244). Advancement by selection to certain ranks in the Staff Corps of the Navy was authorized by act of July 1, 1918 (40 Stat., 718). Advancement of staff officers to the ranks below com- mander is regulated by act of Aug. 29, 1916 (39 Stat., 576). Promotions not to be made to fill vacancies occasioned by retirement of officers who are additional numbers in grade. (Sec. 1510, R. S.) 646 The Navy. Pt.2. REVISED STATUTES. Sec. 1458. Historical note. — By act of February 28, 1855 (10 Stat., 616), it was providecr that "vacancies created in the active-service List by placing officers on the reserved list shall be filled by regular promotion in the order of rank or seniority." Act of February 21, 1861, sections (12 Stat., 150), pro\dded for retirement of medical officers, and section 4 pro\'ided ' ' that all vacancies in the Medical Corps of the Na\'y caused by the fore- going section shall be filled in accordance with established usage." Act of August 3, 1861, section 22 (12 Stat., 291): "The next officer in rank shall be promoted to the place of the retired officer according to the established rules of the serAice. And the same rule of promotion shall be applied suc- cessively to the vacancies consequent upon the retirement of an officer." Act of December 21, 1861, section 6 (12 Stat., 330 1: "That promotions shall be made in place of the officers retired under the provisions of this bill as is now pro\dded by law." Promotion by seniority in the Navy was not originally established by Congress, but was adopted as a rule by the executive, and sub- sequent acts of Congi'ess were enacted with reference to the rule already existing. This is shown by section 1458, Re\ised Statutes, which in purporting to provide for promotions by seniority, makes reference in that connec- tion to "the established rules of the service." (File 28687^:1, Sept. 12, 1916; C. M. O. 3- 1917, p. 8; Op Atty. Gen., Dec. 27, 1916, file 28687-4:8.) Constitutionality of legislation requir- ing promotions by seniority. — See note to section 1480, Revised Statutes; and see cases noted under the Constitution, Article II, section 2, clause 2, "III. Power of Congress," and "IV. Statutory requirements and qualifica- tions;" see also note to section 1372, Revised Statutes, " Promotion by seniority and not com- petitive examination." The law requiring promotions in the Army to be made by seniority does not make it obligatory upon the President to promote to a vacancy existing in the grade of lieutenant colonel the senior officer in the next lower grade, if in his opinion the record of the officer has been such as to indicate that he is dis- qualified for promotion, but under the law he can not be eliminated either through the agency of a retiring board or a court-martial. (30 Op. Atty. Gen., 177.) Congress has undoubtedly confined the Presi- dent's discretion in the matter of promotions in the Army, to the extent at least of designating the class from which the appointment for pro- motion must be made. It has even been argued that the power both of appointment and promotion in the army is solely in Congress, under its power " to declare war, " "to raise and support armies," and "to make rules for the government and regulation of the land and naval forces," being withdrawn from the President's jurisdiction by the words, "whose appointments are not herein otherwise provided for, "in Article II, section 2, of the Constitution. If this view be correct, it might be claimed with some force that the effect of the Army Regulations and acts of Congress on the sub- ject of promotion is to give the senior officer a vested right to promotion at the moment a vacancy occurs, and to make confirmation by the Senate and appointment by the Presi- dent unnecessary, or at most merely formal and evidential acts (citing 10 Op. Atty. Gen., 144; 22 Op. Atty. Gen., 480). However, the correct- ness of this view can not be admitted. Promo- tion in the Army is in the last analysis merely an appointment to a higher office therein; and this fact is illustrated and confirmed by the long-estabhshed practice of submitting nomina- tions for promotion in the Army to the Senate for confirmation and of thereafter issuing a com- mission for the higher office. Promotion, there- fore, having regard to its real nature, is as much or as little within the President's constitutional power of appointment as an original appoint- ment, and is subject, in so far as that matter is concerned, to the same considerations. Now, appointment in the Army, as in any other de- partment of the Government, is an executive and not a legislative act; and the provisions of the Constitution are satisfied by giving Congress the power to make the general rules, prescribing the organization and government of the Army, leaving to the President, with the advice and consent of the Senate, the designation of the particular individuals who are to fill the offices created by Congress therein. Congress may point out the general class of individuals from which an appointment must be made, if made at all, but it can not control the President's discretion to the extent of compelling him to commission a designated individual (citing President Harrison's veto, Feb. 26, 1891, Messages of the Presidents, vol. 9, p. 138; Attorney General Brewster's opinion m Fitz John Porter's Case, 18 Op. Atty. Gen.,_ 18). Mandamus would not lie against the President in such a case . The matter is really concluded , in so far as the Department of Justice is con- cerned, by Attorney General Moody's opinion in 25 Op. Atty. Gen., 591 [noted below], rely- ing on 13 Op. Atty. Gen. , 13. It follows, there- fore, that while promotion is a " right ' ' inhering in the officer next in line of promotion, and practically almost certain to vest in him, it is yet inchoate in its nature and its legal vesting is subject to the fundamental condition of an appointment by the President. (29 Op. Atty. Gen., 254, holding that a commission cannot be issued in the name of an officer whose death occurred after he was nominated by the Presi- dent but prior to his confirmation by the Sen- ate; compare 12 Op. Atty. Gen., 229, noted under Constitution, Art. II, sec. 2, clause 2, "VI. What constitiites appointment," hold- ing that where an officer died before accepting a commission, acceptance is conclusively pre- sumed.) The authorities upon this question establish the following: First, that Congress has not the power to designate an appointee by name (citing 18 Op. Atty. Gen., 18; U. S. v. Ferreira, 13 How., 40); second, that Congress has not the power to require the appointment of an indi- vidual who stands highest upon a competitive examination (citing 13 Op. Atty. Gen., 516); third, that Congress can not require the Presi- dent to appoint to a vacancy m the military service the senior officer in the next lower 647 Sec. 1458. Pt.2. REVISED STATUTES. The Navy. grade (citing 30 Op. Atty. Gen., 177). The above pr()]x»itions all rest upon the underly- ing principle that "the power of appointment of odicers, the duty to appoint whom devolves directly on the President and Senate by vir- tue of "the Constitution itself, is one involving a di-<-retion not entiiely to he controlled by Congress. This power is from a source above Congress, namely, the Constitution, and can not be destroyed hy the inferior power" (cit- ing 30 Op. Atty. Gen., 177). The foregoing authorities, therefore, if they do not clearly define the respective powers of Congress and the President, at least leave no doubt that Congress has not the power to require the ap- f)ointment of a particular individual, either )y name or description. This, of course, applies equally to promotions, for a promotion is "an appointment to a higher office" (citing 30 Op. Atty. Gen., 177). (File 28687-4:4, Sept. 12, 1916; C. M. 0. 3, 1917, p. 7.) \\Tiere Congress does not merely limit the President's power of selection to a class of offi- cers, but proceeds to the very point of requir- ing that a particular individual be appointed to fill a vacancy existing in a higher grade, idz, "the next officer in rank," there is hardly room for doubt that such legislation is neces- sarily an attempted infringement upon the constitutional power of the President, and therefore can not be binding upon him. (File 28687-4:4, Sept. 12, 1916; C. M. 0. 3, 1917, p. 8. See also to same effect, Op. A-tty. Gen., Dec. 27, 1916, noted under sec. 1480, R. S.) Compare 17 Op. Atty. Gen., 36, noted under section 1461, Re\ised Statutes, with reference to the promotion of retired officers as their several dates upon the active list were pro- moted, and compare cases noted under section 1372, Revised Statutes. Whether officer has vested right to promotion upon occurrence of vacancy. — The right to promotion inhering in one who is a commissioned officer is, under existing legisla- tion, in the nature of a vested right, subject nevertheless to being defeated in accordance with the provisions of the laws. (20 Op. Atty. Gen., 433.) By the law and usage of the service a line officer of the Navy has as good a right to pro- motion, if found qualified for it, and to his proper rank in the grade to which he belongs, as he has to his pay, and questions involving the right to rank or promotion are always important because of the bearing they have on the effi- ciency of the service. (18 Op. Atty. Gen., 393.) _ Where it was required by statute that promo- tions to certain offices in the Army be made by seniority, the senior officer was of right entitled to be promoted to a vacancy occurring in the next higher grade on the date that such vacancy occurred. But his right can not be held to have vested and become complete until his actual appointment. The law did not operate of itself to make him a lieutenant- colonel on the date he became entitled to the advancement; it was necessary that there should be an exercise of the appointing power to confer the office upon him, and until his commission was signed by the President the office did not vest. A similar view has al- ways been taken by the Attornevs-General. In 13 Op. Atty. Gen., 13, it was held, respect- ing certain acts and Army regulations requiring vacancies in established regiments and corps to the rank of colonel to be filled by promotion according to seniority, that the laws and regula- tions prescribed only the mode in which vacan- cies should be filled; "they do not confer upon the officer next in the order of succession any right to the vacant place. This he can acquire only by virtue of a new commission." And in 13 Op. Atty. Gen., 44, it was held that the right to an office in the Army is not a vested one until the commission is signed by the President. (25 Op. Atty. Gen., 591.^ For other cases, see 29 Op. Atty. Gen., 254, noted above, under "Constitutionality of legis- lation requiring promotions by seniority;" and 17 Op. Atty. Gen., 36, noted under section 1461, Revised Statutes. Promotions required to be made from next lower grade. — The practice and usage of the Navy, prescril:)ed and sanctioned by law, require that in the grades of the ser\-ice, except in cases otherwise especially provided, promotions be made from the lower to the next higher rank or grade. (26 Op. Atty. Gen,, 496.) The higher grades on the active list were to be constantly supplied by streams of promotion from Ijelow, the fountain being at the lowest grade of all and supplied fi-om without. (Thomp- son 1'. U S., 18 Ct. Cls., 604, 612, noted more fully under sec. 1457 R. S., "Restoration of retired officer to active list.") _ By act of August 29, 1916(39 Stat., 578), promo- tions to the grades of rear admiral, captain, and commander, in the Line of the Navy, were re- quired to be made by selection from the next lower respective grade. (Similarly as to ad- vancement of staff officers to the same ranis: Act July 1, 1918, 40 Stat., 718.) Filling vacancy by transfer from another office of equal grade. — Where there are two or more offices of the same grade in a corps, each requiring a separate commission, on a vacancy occurring in one of them an incumljent of the other may be transferred by appointment to said vacancy, without prejudicing the rights of the senior in next grade below, whose claim to promotion would be fully met by appoint- ing him to either. (17 Op. Atty. Gen., 465.) "Vacancy" defined. — The word "vacancy " means a legal \'acancy, that is, one to which a person coiild be appointed under existing law, and not a numerical vacancy, that is, an official position which is vacant I)ut which could not be filled at the time, under existing laws and regulations. (23 Op. Attv. Gen., 331, construing act Feb. 24, 1897, 29 Stat.. 593, re- lating to the constructive muster of volunteer officers into the Army.) When law is changed, whether existing vacancies should be filled according to the old law. — In accordance ^^'ith the practice under which an "officer is promoted in due course to fill a vacancy," it is clear that for a period of eighteen days the officers referred to were entitled by law to promotion, without examination under the act of October 1, 1890 (26 Stat., 562), made applicable to the Marine Corps by act of July 28, 1892 (27 Stat., 321). No 648 The Navy. PL 2. REVISED STATUTES. Sec. 1458. suggestion is made that the failure to promote the three officers in question occurred from any act or omission of their own. The act of 1892 speaks only from July 28, and creates new con- ditions as to promotions thereafter to be made in the Marine Corps. It would be going very far to say that Congress intended that a right of promotion earned by long sev\dce and actually accrued may, by force of this enactment be taken away from the officer who has performed the service. The executive construction of the act of 1890 is of much weight. Vacancies then existing in the Army were tilled under the law as it existed prior to October 1, without the examination prescril^ed by that act. This was a practical executive construction. "In a case of ambiguity, the contemporaneous con- struction, not only of the courts but of the de- partments, and even of the officials whose duty it is to carry the law into effect, is uni- versally held to be controlling," (citing Schell's Ex. v.Fauche, 138 U. S., 572). Although the practice under the act of 1890 had not had suf- ficient time to ripen into the principle quoted, it should clearly appear that the executive action stated was contrary to law, to justify the overruling of this departmental decision. It must be understood that the legislation of 1892 was made by Congress with a full knowledge of the executive construction which had been pre^dously made upon the act of 1890, and the inference is a necessaiy one that if this construc- tion had not been in accordance with the intent of Congress, the act of 1892 would have con- tained a provision requiring a different execu- tive rule. A construction which requires the three officers specified to be examined under the provisions of the act of July 28, 1892, will disregard rights which ought to be treated as vested rights of the officers affected, and will run counter to the established determination of the War Department, and will reverse a decision which has been practically acquiesced in by Congi-ess. (20 Op. Atty. Gen., 433.) The act of August 29, 191G (39_Stat., 578), provided that thereafter promotions to the upper grades in the line of the Navy should be by selection only. Examinations and promo- tions by seniority under prior laws, which were not consummated prior to the act of August 29, 1916, were of no legal effect in view of the change in the law. (File 26260-3663:2. Oct. 9, 1916; file 26260-3648:3, Sept 22, 1916; file 26260-3630, Jan. 18, 1917.) The act of May 22, 1917, section 20 (40 Stat., 89), which provided that examinations for staff oflicers should not be required except for advancements in rank, operates on and after May 22, 1917, to exclude statutory examina- tions for promotions to higher grades in the Staff Corps, such as were theretofore required by law. (File 26521-203, July 31, 1917, citing and following file 26260-3663:2, Oct. 9, 1916, noted above.) Officers of the Medical Corps, due for promo- tion to higher grades from August 29, 1916, and January 10, 1917, but who had not been examined 'or such promotions prior to May 22, 1917, could not after the last-named date be re- quired to take the statutory examinations for promotion in grade in accordance with laws in effect prior to May 22, 1917. (File 26521-203, July 31, 1917.) A medical officer due for promotion to tht gi'ade of surgeon from August 29, 1916, ex- amined therefor on March 12, 1917, and found not professionally qualified, could not be re- quired, after May 22, 1917, to undergo a further statutory examination for promotion in grade in accordance with prior laws, although the penalty consequent upon his professional failure, namely, loss of numbers equal to the aA'erage six months' rate of promotion to the grade for which said officer was examined, must be considered as having been attached under laws then in effect, and as not being dis- turbed by the subsequent change in the 'laws relating to promotion in grade made by the act of May 22, 1917. (File 26521-203, July 31, 1917.) A medical officer due for promotion in grade from August 29, 1916, examined May 8, 1917, and found not qualified professionally, which finding, however, had not been approved on May 22, 1917, could not thereafter be required to undergo further statutory examination for promotion in grade, nor did any penalty attach in his case in consequence of the proceedings already had, owing to the fact that such pro- ceedings were not completed by the President's approval, which is necessary to make the find- ing legally effective. (File 26521-203, July 31, 1917, citing Jouett v. U. S., 28 Ct. Cls., 257.) Date of vacancy created byre tiremento — Vacancies caused by the retirement of officers from active service do not begin to run until the day following the date their retirement becomes legally effective. (16 Comp. Dec, 682.) A vacancy in an office does not arise until the officer ha\dng the legal title to it ceases legally to hold it.. (16 Cornp._ Dec. ,^682.) Officers promoted by seniority, or receiving original appomtments to fill vacancies caused by retirement of officers of a higher grade, are only entitled to the pay of the higher grade from and including the day succeeding the date the retirement of their predecessors becomes legally effective. If officers receiving original appointments in the Army accept the same on a date later than the day succeeding the date the retirement of their predecessors becomes legally effective, they are entitled to pay from the date of their acceptance onlv. (16 Comp. Dec, 682.) For other cases, see notes to sections 1444 and 1457, Revised Statutes. Antedating rank on promotion. — By the settled practice of the service promotion to a higher grade includes the right to the rank of that grade from the date of the vacancy filled by the promotion. This practice has the distinct recognition of Congress. Section 1562 of the Revised Statutes, and the act of June 22, 1874 (18 Stat., 19), not only recognize the practice of making the rank to antedate the time of appointment to wlrich the rank belongs, but extend it so as to give pay from the time rank begins. Before the legislation referred to, several of the Attorneys General had decided that it was competent for the appointing power to give rank by relation in making promotions 649 Sec. 1458. Pt.2. REVISED STATUTES. The Navy. (citing 4 Op. Atty. Gen., 124; 8 Op. Atty. Gen., 237). (IS Op. Atty. Gen., 393.) Under an munemorial custom, officers of the Anny promoted by seniority are given rank from the date of the vacancy which they are promoted to fill, and altliough not specifically authorized by statute, are allowed the pay of the higher grade from that date. (7 Comp. Dec, 506.) The practice of antedating commissions for purposes of rank is an old one, and has been repeatedly recognized and sustained by the Attorney General and the courts. The sum total of the precedents is that the antedating of commissions, both on original appointment and on promotion, is an established custom of which Congress must be aware; that so far as concerns rank this practice has repeatedly been sustained, and under some circumstances is held proper even for purposes of pay. (File 26280-68, Apr. 12, 1916.) In 1836 it was held by Justice Story, in U. S. V. Vinton (2 Sumn., 299, 28 Fed. t^s., 382) that the President and Senate had the right to ante- date the brcA'et commission of an Army officer, and that the date so stated in the commission was binding upon the com-fs and entitled the officer to back pay. In 1842 it was held by Attorney General Legare (4 Op. Atty. Gen., 123) that the executive has the power to ante- date the conmiissions of officers on promotion in cases of delav. In 1847 Attorney General Clifford (4 Op. Atty. Gen., 603, 608) recognized that "usage has strengthened the practice of antedating rank." In 1873 it was held by Attorney General Williams (14 Op. Atty. Gen., 191) that "where a fictitious date in an officer's commission would be attended with prejudice to other oflicers in the same gi'ade, it must be deemed improper to thus date the commission, unless there is clear authority of law for so doing;" but that, while "there is no more authority under the statutes to antedate the commission in the one case than there is in the other," where no other officers are thereby adversely affected, the antedating of com- missions is practically "unimportant." (File 26280-68, Apr. 12, 1916.) By law persons competent to contract with reference to a given subject matter may give their contract a retroactive operation, and have its legal effect antecedent to the time when the contract was actually made; and so the President, for some piupose, may give to an instrument which he issues an effect in law prior to the date of its execution. Sections 1561 and 1562, Revised Statutes, provide for certain cases wherein the pay of officers shall commence from a date anterior to that of the commission. The specification in those cases implies the exclusion of all others. From the practice of the executive of inserting an ante- date in the numerous cases arising under those sections for convenience to indicate when the officer's pay is to commence or to be increased by law, it is easy to see how it might be some- times inserted for convenience for other pur- poses, or even inadvertently in some cases where it might have no practical application. Where an officer was advanced in rank for emi- nent and conspicuous conduct in battle, under section 1506, Re\'ised Statutes, and the date of his rank in his new commission was, for convenience, fixed as a date between that of the commission of the highest of the officers whom he was thus made to outrank and that of the lowest next above him, in order to indi- cate his ])osition and rank with reference to the other oflicers of his grade; this was not a case in which he was entitled to pay from such ante- cedent date under sections 1561 and 1562, Revised Statutes. (Young v. U. S., 19 Ct. Cls. , 145.) Officers of the Revenue-Cutter Servdce [now Coast Guard] promoted by seniority in accord- ance with the established rules and practice of the ser\ice to fill certain additional offices created by act of April 16, 1908, are entitled to the pay of the higher grades to which promoted from April 16, 1908, the date the offices were created, which is the date the vacancies oc- curred. (15 Comp. Dec, 157.) That an appouitment to an office in the Army, when validly made, may, in so far as concerns rank and pay, relate back, either by force of a particular statute or regulation (citiiig sec 1562, R. S., Howell's Case, 25 Ct. Cls., 288, 7 Comp. Dec, 506, 15 Comp. Dec, 157), or perhaps by executive act (citing U. S. v. Vinton, 2 Sumn. 299 [28 Fed. Cas. No. 16624]; 3 Op. Atty. Gen., 124, but compare 4 Op. Atty. Gen., 608), does not pro^-e that the office itself vests at an earlier time than the date of commission. (29 Op. Atty. Gen., 257; see also, note to Constitution, Art. II, sec. 2, clause 2, "VI. What constitutes appouitment." Compare 18 Op. Atty. Gen., 393, noted below, under "Status of officer jjend- ing confirmation by Senate of his promotion.") The fact that the officer's appointment in this case conferred rank from the date of the vacancy, and that he was allowed pay in the higher grade from the date of the vacancy to the date of commission does not affect the "view that until his commission was signed by the President the office did not vest. Rank and office are not identical. The former is merely an incident of the office, and is used as a designation or distinction conferred upon an officer in order to fix his relative position with reference to other officers or to determine his pay and emoluments. The allowance of pay to the officer in this case from the date of the vacancy appears to have been made in accord- ance with an immemorial custom of the War Department which has been followed by the accounting officers, although it rests on no statutory authorization. (25 Op. Atty. Gen., 591, citing 7 Comp. Dec, 506, 511; see also Downes v. U. S., 52 Ct. Cls., 237.) The act of August 29, 1916 (39 Stat., 581), provided for an increase in the commissioned personnel of the Navy, but required that pro- motions to the grades of commander, captain, and rear admiral of the line should be made by selection only upon recommendation of a board of rear admirals to be convened during the month of December of each year. (39 Stat., 578.) Held, that no officers could be promoted to the grades named until after next January first, but that when so promoted their dates of rank in commissions should be the dates on which the vacancies occurred to which pro- moted. With reference to the additional posi- tions in said grades authorized by said act, the 650 The Navy. Ft. 2. REVISED STATUTES. Sec. 1458. dates of rank in commissions should be August 29, 1916, that being the date on which such vacancies occurred . As to one vacancy in the grade of rear admiral which existed prior to August 29, 1916, the officer selected therefor should be given date of rank in commission as of the vacancy which he is promoted to fill. (File 28687-4:1, Sept. 16, 1916.) The act of August 29, 1916 (39 Stat., 609), created certain original vacancies in the grade of brigadier general in the Maidne Corps, and the question arose as to date of rank to be inserted in the commissions of officers promoted thereto. Held, that to give the officers said higher rank from the date of the vacancies which are filled by their promotion is a custom which obtains in all branches of the ser^dce, and this custom has received the approval of Con- gress in various enactments, either expressly or by implication. Nevertheless, where the filling of vacancies is discretionary with the President, the commissions need not be made to date from the occurrence of the vacancies unless the appointing power so decides. (File 28687-7, Oct_. 7, 1916, citing file 7151-03. The promotions in these cases were dated from August 29, 1916: see Na\^ Register, 1917, pp. 230, 231.) The act of August 29, 1916 (39 Stat., 609) pro- \'ided that the authorized number of commis- sioned officers in the Marine Corps should be based on the authorized number of enlisted men, distributed between the various ranks in the proportions therein prescribed ; and further provided (39 Stat., 612), that the President might increase the number of enlisted men whenever, in his judgment, this should become necessary to place the country in a complete state of preparedness. By Executive Order of March 26, 1917, the President exercised his power by authorizing an increase in the number of enlisted men. Further increases in the nimaber of enlisted men, for the period of the war, were authorized by act of May 22, 1917. (40 Stat., 84.) Held, that vacancies in com- missioned ranks resulting from the President's order increasing the number of enlisted men, were created on the date of said order, and va- cancies resulting from the temporary increase in the number of enlisted men authorized by the act of May 22, 1917, were created on the date of said act; held, further, that the date of rank to be given officers promoted to vacancies so created should ordinarily be the date of vacancy to which promoted. In no case, how- ever, should any officer permanently or tempo- rarily promoted be given rank from a date earlier than his date of rank in the lower grade. (File 28687-5:1, Sept. 7, 1917.) For other cases, see note to section 1457, Re- vised Statutes, "When retirement or advance- ment on retired list takes effect' ' ; and see note to section 1561, Re^ised Statutes. Status of oflB.cer pending' promotion. — WTiere, upon the retirement of a rear admiral, a commodore next in line was nominated to be a rear admiral to fill the vacancy, and before action thereon by the Senate the said commo- dore attained the age of 62 years and was retired under section 1444, Re^-ise"d Statutes, as a com- modore: Ad\dsed, that according to the law and usage of the sersdce, the officer was entitled by relation to be a rear admiral from the date when the vacancy occiu-red and to receive the pay of a rear admiral from that date; and if the Senate should confirm his nomination he might be commissioned as a rear admiral and placed on the retired list as of that grade. (18 Op. Atty. Gen., 393; compare 29 Op. Atty. Gen., 257, and 25 Op. Atty. Gen. ,,591, noted above, under "Antedating rank on promotion.") WTiere an officer accepts a recess promotion, and thereafter becomes eligible for retirement by reason of age, before the adjournment of Congress and before the appointment is acted upon by the Senate, he is entitled to be retired with the rank of his new appointment. (29 Op . Atty. Gen., 598.) While, if an officer is not confirmed, he falls back into his former office, until that event happens his actual office is that to which he has been appointed by the President under his constitutional power to fill offices where vacan- cies exist during the recess of Congress. All such recess appointments, while they continue in force, confer an absolute title to the office named and to the rank thereof, and such ap- pointments continue until rejected by the Senate or until the Congress adjourns without any action being taken thereon. (29 Op. Atty. Gen., 598.) The acceptance by an Army officer of a recess appointment is proAUsional only, and leaves to the officer a reversionary right to his former office in case his new appointment is not con- firmed by the Senate. An Army officer who accepts a recess promotion and thereafter be- comes eligible for retirement by reason of age before the adjournment of Congress and before the appointment is acted upon by the Senate, is entitled to the rank of his new appointment. (29 Op. Atty. Gen., 598.) Under the laws reciuiring promotion by seniority and the practice of the Presidents and the War Department in conformity there- with, in case of such a promotion the officer next in seniority, if qualified, would be promoted to fill the vacancy thus created, and then the next one, and so on down the line. Then, if the vacating of the office by the officer first thus promoted (recess of the Senate) be but provi- sional, and dependent upon liis confirmation, so also would be those of the succeeding officers. It might happen that the Senate should adjourn without confirming the appointment of an officer promoted to a higher grade, while con- firming that of a junior officer nominated to the office which the senior officer had held. This, if effectual, would put the officer whose promo- tion was not confirmed out of office and out of the service, despite the provisions of section 1229, Revised Statutes; but such a case can hardly be supposed; the injustice of the case would certainly restrain the Senate from taking action which would have that result. (29 Op. Atty. Gen., 600.) An officer due for promotion by seniority to the grade of captain, to fill a vacancy in said grade which occurred prior to August 29, 1916, was examined for promotion to said vacancy but his examination was not finally acted upon prior to the date mentioned. Held, that his promotion had not been consummated on August 29, 1916, and upon the approval of the 54G41°— 22- 42 651 Sec. 1458. Pt.2. REVISED STATUTES. The Navy. act of that date (39 Stat., 578) requiring subse- quent promotions to tho grades of rear admiral, captain, and commander, to be made ])y selec- tion only, the proc-eedings which had been taken in the case of this ollicer became null and void. (File 2(iL'()0-36(W:2, Oct. 9, 1916.) An ollicer became due for promotion to the grade of rear admiral on March 2(5, 1913, was examined and found (lualilied, but was not commissioned in the higher gi'ade, nor was the board's finding as to his c[ualilication8 approved by the President. JIdd, that the ollicer continued in the status of a captain on the active list of the Navy, and was therefore legally aAailable for selection for compulsory retirement from the grade of captain under the provisions of section 9 of the Ka^y personnel art of March 3, 1899 (30 Stat., 1006). (File 26297-14, June 7, 1913.) A second lieutenant in the Marine Corps became due for promotion to first lieutenant on May 13, 1908; he was examined for such promotion in Ajiril, 1909, was found not quali- fied, and the linding of the board approved on April 23, 1909. In the meantime, in March, 1909, he was tried by general court-martial and sentenced among other things to lose 30 num- bers in his grade, which sentence was approved March 30, 1909. During tliis period the officer had been carried in the Navy Register as a first lieutenant "subject to examination and confirmation," standing No. 53 in a list of 92. Hfld, that the officer's grade at the time of the approval of his sentence was that of second lieutenant and not first lieutenant, and that his lineal position was No. 1 in the grade of second lieutenant, awaiting promotion; accord- ingly, held that the sentence requiring him to lose 30 numbers in his grade must be executed by reducing him 30 numbers in the grade of second lieutenant. (File 26260-308:D, June 4, 1909.) A second lieutenant in the Marine Corps, ha\'ing been nominated by the President and confirmed by the Senate, was appointed by the President a temporary first lieutenant in the Marine Corps, on August 14, 1917, to rank from May 22, 1917. His commission was mailed to his commanding officer for delivery on August 23, 1917. In the meantime, on August 18, 1917, the officer was reported to have committed certain offenses for which his trial by court- martial was ordered on August 29, 1917, subse- quent to his appointment but prior to his notifi- cation and accei)tance thereof. The act of appointment was comi)lete when the commis- sion was signed. If the office to wliich he was appointed was one from which he could not be removed by the President, the action of the Chief Executive in making the appointment would be irrevocable. However, in this case the temporary appointment was, under the terms of the law, revocal)le at the Avill of the President, and accordingly, the commission, although complete when signed and sealed, might nevertheless be withheld and revoked by the Secretary of the Navy, acting for the President. (File 26260-4837, Sept. 13 and 15, 1917.) For other cases, see note to Constitution, Article II, section 3. Death of officer before promotion com- plete. — A commission can not be issued in the name of an ollicer whose death occurred after he was nominated by the President but prior to his confirmation by the Senate. (29 Op. Attv. Gen., 254.) Where a person is appointed to office, either during a session or in a recess of the Senate, and dies before confirmation, his personal representatives must be remitted to Congress for the payment of salary earned by such officer. (25 Op. Atty. Gen!, 312; see sec. 1761, R. S.) WTiere an officer died before accepting a com- mission promoting him to a higher grade, his acceptance will be conclusively presumed. (12 Op. Atty. Gen., 229; see also Comp. Dec., Sept. 23, 1915, 175 S. and A. Memo., 3780.) The President may send to the Senate for approval of his action the names of officers on the retired list of the Army nominated by him for advancement in rank on account of civil-war ser\ice (act Apr. 23, 1904, 33 Stat., 264) after the adjournment of the last session of Congress, but who died before the convening of the present session; and upon approval by the Senate, the personal representatives of the deceased officers mil be entitled to receive the advanced pay due such officers without fur- ther action by Congress. Such advancement in rank on the retired list does not constitute a promotion to a higher office. (25 Op. Atty. Gen., 312; see also 25 Op. Atty. Gen., 1S5.) Promotion of ojSB.cer accomplished by confirmation of his successor. — See 23 Op. Atty. Gen., 30, noted under section 1363, Revised Statutes, "Effect of nomination and confirmation of an officer for appointment to grade already full," and see 13 Op. Atty. Gen., 44, noted under section 1457, Revised Statutes, "(Correction of erroneous retirement." How seniority is determined. — Promo- tion among officers in the line of the Navy goes by seniority, and seniority is determined by the date of commission — that is to say, the date from which the commission recites that the appointment to a given grade begins. (18 Op. Atty. Gen., 393; see also Toulon v. U. S., 52 Ct. Cls., .333; 24 Comp. Dec, 177; 22 Comp. Dec, 623; 17 Comp. Dec, 605; 22 Comp. Dec, 565, 566.) Precedence of oflS.cers promoted by selection instead of seniority. — The act of July 25, 1866, section 1 (14 Stat., 222), enlarged the number of line officers in higher grades of the Navy, created original vacancies in each grade above that of lieutenant, and provided that appointments to fill such vacancies be made as follows: "That the increase in the grades authorized by this act shall be made by selection from the grade next below of offi- cers who have rendered the most efficient and faithful service during the recent war, and who possess the highest professional qualifications and attainments." When oflicers are pro- moted by selection they should be considered as having gained length of service according to their promotion in determining their relative rank ^vith other grades of the Navy% to a suffi- cient extent to place them above the officers over whom they were thus advanced. But in 652 The Navy. Pt.2. REVISED STATUTES. Sec. 1458. no case do the officers over whom they are thus advanced lose anji;hing in length of service which they had already rendered. (17 Op. Atty. Gen., 56.) When the report of the Board of Rear Ad- mirals for selection for promotion, created by act of August 29. 1916 (39 Stat., 578), is ap- proved by the President, "the officers rec- ommended therein shall be deemed eligible for selection, and if promoted shall take rank with one another in accordance with their seniority in the grade from which promoted." (Act Aug. 29, 1916, 39 Stat., 579.) "Promotion" and "appointment" com- pared. — ' 'A promotion in the Army is an ap- pointment to a higher office therein. The cus- tom, so far as I am aware, has always been to nominate the promoted officer to the Senate and subsequently to appoint and commission him anew." (.30 Op. Atty. Gen., 177.) "Promotion in the Army is, in the last analysis, merely an appointment to a higher office therein; and this fact is illustrated and confirmed by the long established practice of submitting nominations for promotion in the Army to the Senate for confirmation, and of thereafter issuing a commission for the higher office. Promotion, therefore, ha\'ing regard to its real nature, is as much or as little within the President's constitutional power of appoint- ment as an original appointment, and is sub- ject, in so far as that matter is concerned, to the same considerations." (29 Op. Atty. Gen., 254; see also Op. Atty. Gen., Dec, 27, 1916, file 28687-4:8.) Promotion is a mode of appointment, and it is not the less an appointment becatise the per- son promoted has previously held another ap- f)ointment in the serA^ice. Wlien a second ieutenant is promoted to the rank of fii'st lieutenant, he is appointed to stich rank by and with the advice and consent of the Senate. (17 Op. Atty. Gen.. 34. holding that the word "appointment" as tised in sec. 1219, R. S., "applies to appointments on promotion as well as to original appointments," notwith- standing the prior constmction of the War Department to the contrary. This opinion was overruled in 17 Op. Atty. Gen., 196, noted below.) A clear and well-defined distinction between appointment and promotion has existed, and been recognized in the War Department con- tinuously since the establishment of the Army. Appointment is the selection of persons, not now in the Army, as officers of it, or the designa- tion by selection of an officer already in the Army to a vacancy which is not required by the law or the regulations to be filled by pro- motion according to seniority. Promotion is the advancement of officers already in the Army, according to seniority, to vacancies happening in the different arms of the ser^•ice and according to rules prescribed by law or by regiUations ha\ing the force of law. (17 Op. Atty. Gen., 196; affirmed 24 Op. Atty. Gen., 74 — holding that the word "appointment" in section 1219, R. S., applies only to the origi- nal entry of the officer into the regular service or subsequent appointment by selection; but that it does not apply to promotions by senior- ity as defined in the Vegtilations of the Army — overruling 17 Op. Atty. Gen., 34, noted above. See also file 11130-35, Dec. 20, 1916.) The advancement of a line officer of the Marine Oorps to major and paymaster, and the advancement of another line officer to major, adjutant and inspector, were "appointments by selection at the discretion of the appointing power, and were not promotions under the statutes regulating such promotions." Their subsequent advancement to a higher rank in their respective branches of the Marine Corps was a promotion in the case of each officer, and not an "appointment" within the meaning of section 1219, Re^'ised Statutes, fixing the rela- tive rank between officers "having the same grade and date of appointment and commis- sion." " To hold that promotions are appoint- ments where the officers thus promoted are in different departments, but are not appoint- ments where they are in the same department, is to narrow the application of the statute by reading into its general provisions a substantial qualification of which its language gives no suggestion." (24 Op. Atty. Gen., 74, affirming 17 Op. Atty. Gen., 196, noted above.) As to the difference between promotion and appointment, in fixing the relative rank of officers, it may be observed that what is tech- nically called an appointment may be in every practical sense a promotion. Without vouch- ing for the strict accuracy or completeness of the definitions of "appointment" and "pro- motion" in 17 Op. Atty. Gen., 196 [quoted above] it is apparent that the advancement of an officer to a higher grade, and to which he could not then succeed in due course by sen- iority, while called an appointment, is in fact and effect a promotion, and it would seem that an officer thus advanced should be entitled to whatever benefit attaches to promotion. The advancement of a captain in the I^Iarine Corps to assistant adjutant and inspector, with the rank of major, by whatever name it be tech- nically called, is in fact a promotion. (23 Op. Atty. Gen., 155.) "Gen. McClernand was given and accepted a recess appointment which has not been con- firmed or acted upon. This, I assume, was an appointment by way of promotion to a higher office." (29 Op. Atty. Gen., 598, 601.) It has been the rule of the accounting officers to hold that the appointment of an officer in one branch of the ser\dce to an office in another branch is an "original entry into the ser\dce" within the meaning of section 1560 of the Re- vised Statutes. (Comp. Dec, May 31, 1907, 76 S. and A. Memo., 372.) The appointment of an officer from the office of ensign in the Navy to the office of assistant naval constructor, an office belonging to another branch of the naval service, clearly was not a promotion in course to fill a vacancy in the next higher grade, but was an appointment which must, in the absence of any special pro\'ision of statute, be governed by the rules which apply to appointments to office generally, with refer- ence to commencement of pay, which is held to be the date of acceptance of the office. (Comp. Dec, Sept. 20, 1907, 79 S. and A. Memo., 462; but see Comp. Dec, Aug. 12, 1915, 174 S. and A. Memo., 3756, noted below.) 653 Sec. 1459. Pt.2. REVISED STATUTES. The Navy. An ensign in the line of the Navy, who was appointed as an assistant naval constructor with the rank of lieutenant (junior .^nadu) was not ''advanced in grade or rank '' within the mean- ing of the act of March 4, 1!)]3, (37 Stat., 892); but his appointment as an assistant naval con- structor is regarded as a new appointment. (20 Comp. Dec, 18(), Sept. 19, 1913; but see, Comp. Dec, Aug. 12, 1915, 174 S.and A.Memo.,3756, noted below). Since the act of March 3, 1915 (38 Stat., 928, 945), which provided for transfer of ensigns to the grade of assistant naval constructor, such transfer invohdng an advance in rank, ensigns BO transferred are advanced in rank pursuant to law, and are entitled, under the act of March 4, 1913 (37 Stat., 892), to the pay and allowances of assistant naval constructors from the dates stated in their commissions, although prior to the date of actual appointment in the constmc- tion corps. (Comp. Dec, Aug. 12, 1915, 174 S. and A. Memo., 375().) The appointment of a midshipman as an assistant civil engineer was an "original entry into the service " within the meaning of section 1560, Revised Statutes, and not a ''promotion in course to fill a vacancy in the next higher grade" within the meaning of the act of June 22, 1874 (18 Stat., 191), superseding section 1561, Revised Statutes. (13 Comp. Dec, 606, Mar. 12, 1907.) The appointment of a warrant officer to be a temporary ensign in the Navy, pursuant to the act of May 22, 1917 (40 Stat., 85), was an ad- vancement in grade or rank pursuant to law, within the meaning of the act approved March 4, 1913 (37 Stat., 892), and entitles the officer to the pay of the higher grade or rank from the date stated in his commission, (24 Comp. Dec, 401.) The temporary appointment of a pay clerk as an assistant paymaster is substantially a promotion, and pay under such appointment is authorized from date of rank and prior to date of approval of his bond. (25 Comp. Dec, 550. Followed and extended, Comp. Dec, May 5. 1919, file 26254-2795:1.) For other cases see note to section 1407, Revised Statutes, under "Appointment of en- listed man as warrant ofiicer not a promotion"; and note to section 1408, Revised Statutes, "Appointment as warrant officers." Acceptance of promotion. — The accept- aiKi^ (if a promotion is not necessary to con- summate the appointment of an officer in the naA'al service to a higher gi"ade. The accept- ance of a promotion does not, as the acceptance of an original appointment does, invest an unofficial person with official character. It exalts his rank alone. If it devolves upon him official duties which were inaccessible to him before, it was not from defect of ofiicial respon- sibility on his part that the higher duties could not have been demanded of him by the Govern- ment, but rather because the Government had chosen to vest to that extent in his superior officers the privilege of performing such higher duties. As a commissioned officer of the Navy, he had already boimd himself to obey all law- ful orders of his su])('ri(irs, and no accession of dignity to his rank could augment this obliga- tion. The acceptance of a promotion, then, is not the act of accepting an office in the sense in which that jjhrase is used to denote the as- sumption of official responsibility. In so far as his acceptance of the promotion bears any analogy to the acceptance per se of an office he may be said to have accepted all promotions to which he might attain when he entered into the naval service imder his first commission. On the other hand, while a promoted officer may not, and in some situations certainly could not, decline the performance of duties of cor- responding grade, it is plain that he might de- cline the rank with its honors and emoluments. But in doing so it is clear that his action would in substance be less a declination than a resigna- tion. (12 Op. Atty. Gen., 229, holding that where an officer died before accepting his pro- motion, the presumption is conclusive in law that it would have been accepted by him had he lived to receive it; see also Comp. Dec, Sept. 23, 1915, 175 S. and A. Memo., 3780.) Oath of office on promotion. — A transfer, promotion, or reduction from one grade to another is an appointment to that gi'ade, and a clerk in an executive department so trans- ferred, promoted, or reduced is required to take the oath of office prescribed in section 1757, Revised Statutes. (8 Comp. Dec, 521.) [Note: By act of May 13, 1884, section 2 (23 Stat., 22), the oath of office prescribed by section 1757, Revised Statutes, must be taken by every person ai^pointed to any office of honor or profit either in the civil, military, or naval service. See also act Mar. 3, 1899, sec. 25 (30 Stat., 1009)]. A clerk in an executive department who is appointed to another position or to a clerkship of another gi-ade must take the oath of office prescribed in section 1757, Re\'ised Statutes. The fact that these clerks may have taken an oath of office when originally appointed does not relieve them from taking a new oath upon every new appointment for each new appoint- ment they receive is to a new office, and before entering upon that office they are required by the provisions of section 1757, Revised Stat- utes, and of Article VI of the f'onstitution to take an oath of office. It was held by the At- torney General (19 Op. Atty. Gen., 221) that a person who was his own successor in office must take the oath which the law requii-es shall be taken upon every newappointmentbefore enter- ing upon the duties. 1 1 necessarily follows that if a person, instead of being his o\va successor, is appointed to another position and in another place, he must take a new oath of office. (1 Comp. Dec, 4.) The promotion of an officer from the grade of ensign to that of lieutenant (junior grade) "was not an original entry into the service, requiring a formal acceptance or oath of office." (Comp. Dec, Sept. 23, 1915, 175 S. and A. Memo., 3780.) For other cases, see note to section 1757, Re\dsed Statutes. Sec. 1459. [Retired officers withdrawn from command, and from line of promotion.] Officers on the retired list shall be witlidraAvn from command, excej)t in the case provided in sections fourteen hundred and sixty-three and 654 The Navy. Pt. 2. REVISED STATUTES. Sec. 1461. fourteen hundred and sixty-four, and from the Une of promotion on the active Hst.— (3 Aug., 1862 [shoidd be "1861"], c. 42, s. 22, v. 12, p. 290; 21 Dec, 1861, c. 1, ss. 3, 4, V. 12, p. 329.) destroy the right to promotion ' ' on the reserved list." The line of promotion referred to in that act is plainly that which exists for officers in active service, involving increased rank and pay. From this line retired officers are very properly withdrawn, because it would be un- just to the officers in active service if their right to promotion should be obstructed by the claims of those who are relieved from duty. But in its stead they may receive promotion "on the reserved list." (10 Op. Atty. Gen., 107; see notes to sections 1461 and 1465, R. S.) Restoration of officers to "line of pro- motion." — Under the act of March 2, 1895 (28 Stat., 910), authorizing the President to place "on waiting orders out of the line of promotion, with one-half active-duty pay," officers of the Revenue-Cutter Ser-vT.ce [now Coast Guard] who are permanently incapac- itated, and to fill the resulting vacancies by promotion in the order of seniority, held, that an officer placed on "permanent waiting or- ders" is withdrawii from the line of promotion, but may be restored to the service in his former rank when his disability ceases, without Con- gressional action. (21 Op. Atty. Gen., 286.) For other cases, see note to section 1465, Re- vised Statutes. Employment on active duty. — From sec- tions 1459 and 1462, Revised Statutes, it ap pears to be the policy of the law to prevent the employment of officers on the retired list of the Navy save under some exceptional circum- stances. (3 Comp. Dec, 581. For other cases, see sec. 1462, R. S.) Active duty for retired officers. — See note to section 1462, Revised Statutes. Promotion on retired list. — See notes to sec- tions 1460 and 1461, ReAdsed Statutes. Restoration of retired officers to active list. — See section 1465, Revised Statutes. Promotion on retired list. — ^The act of February 28, 1855 (10 Stat., 616), declared that officers placed on the reserved list should be ineligible to further promotion. But the third section of the act of January 16, 1857, to amend the first-named act, expressly repealed this provision, and the fointh section declared that reserved officers might be promoted on the reserved list, by and with the advice and con- sent of the Senate, but no such promotion should entitle them to any pay beyond that to which they were entitled when so reserved, nor should they, by such promotion, take any higher rank than they would have taken had they been retained in the active service of the Navy. The twenty-second section of the act of August 3, 1861, prowling for the better organization of the military" establishment enacts that "if any officer of the Navy shall have become or shall hereafter become, inca- pable of performing the duties of his office, he shall be placed upon the retu'ed list, and mth- drawn from active service and command, and from the line of promotion," with certain pay and emoluments therein specified, graduated according to the rank of the different classes of officers. The clause of that section which with- draws officers who may be placed on the retired list from "the line of promotion," does not Sec. 1460. [Promotions to rear-admiral on the retired list. Superseded.} This section provided as follows: "Sec 1460. There may be allowed upon the retired list of the Navy nine rear-admirals by promotion on that list: Provided, That this section shall not prevent the Secretary of the Navy from promoting to the grade of rear-admiral on the retired list, in addition to the number herein provided, those commodores who have commanded squadrons by order of the Secre- tary of the Navy, or who have performed other highly meritorious service, [or who, being at the outbreak of the late war of the rebellion citizens of any State which engaged in such rebellion, exhibited marked fidelity to the Union in adhering to the flag of the United States.]"— (16 July, 1862, c 183, s. 14, v. 12, p. 585; 25 JiUy, 1866, c 231, s. 1, v. 14, p. 222. 15 Aug., 1876, c. 302, v. 19, p. 204.) It was superseded by act of August 5, 1882 (22 Stat., 286), pro^dding that "hereafter there shall be no promotion or increase of pay in the retu-ed list of the Navy but the rank and pay of officers on the retired list shall be the same that they are when such officers shall be retired." (See 17 Op. Atty. Gen., 495; also see note to sec. 1461, R. S.) Pay of officers on retired list was to be based on pay which they received on the active list at the date of retirement, under pro\'i'/ice. (13 Op. Atty. Gen., 544.) Sec. 1461. [Promotion of retired officers with running- mates on active list. Superseded.] This section provided as follows: "Sec 1461. Officer.s on the retii-ed list of the Navy shall be entitled to promotion as their several dates upon the active list are promoted : Provided, That no promotion shall be made to the gi'ade of rpar-admiral upon the retired list while there shall be in that grade nine rear- admirals by promotion on that list, exclusive 655 Sec. 1462. Pt.2. REVISED STATUTES. The Navy. Ill those 80 promoted by reason of ba\ang coni- nianded squadrons by order of the Secretary of tlie Navy, or of having performed other highly meritorious service. No promotion to the grade of rear-admiral on the retired IL^t while there shall be in that grade the full nnniber allowed by law."— (IC Jan., 1857, c. 12, 8. 4, V. 11, p. 154; 2 Mar., 1867, c. 174, e. 9, v. 14, p. 517; 30 Jan., 1875, c. 30, v 18, p. 304.) It was superseded by act of August 5, 1882 (22 Stat., 28(1), quoted in note to section 14G0, llevL^ed Statutes. (26 Op. Atty. Gen., 501.) Promotion on the retired list under cer- tain specilied conditions was authorized by act of July 1, 1918 (40 Stat., 717). Advancement to the' pay of higher ranks was authorized for retired warrant officers and chief warrant officers by act of April 10, 1918, (40 Stat., 516.) See also notes to sections 1459 and 1465, Re- vised Statutes Pay of officers on retired list was to be based on pay which they receive on the active list at date of retirement, imder pro^^sion^ of section 1588, Revised Statutes. (See also sec. 1591, R. S.) But see acts of April 10, 1918, and July 1, 1918 (40 Stat., 516, 717). Advancement in rank of retired offi- cers. — See note to section 1457, Revised Statutes. Promotion under this section was man- datory, and not subject to examination.— Section 1461, Revised Statutes, gives to naval officers on the retired list a right to promotion on that list as their several dates on the active list are promoted. The Navy Department ruled that the law authorizing such promo- tions on the retired list was not strictly imper- ative, but left the matter in some degree sub- ject to the discretion of the President to select such officers as in his opinion might be "en- titled" to promotion on the retired li.st. And although a few such officers were afterwards promoted no general i)romotions of retired of- ficers were made. I n ^•iew of the fact that there are officers retire(l from active service who in case of war would be entirely unfit for any duty, this iuterj)retatiou seemed to the Navy Dejjartment to be justified. However, the law makes no discrimination and authorizes no examination in the cases of retired officers to determine their fitness for ad\ancement to higher grades than those in which they were retired for causes disqualifying them for active service. The language of section 1461 is ex- plicit and distinct in its character. The word "entitled," which it is thought may be con- strued as giving a right of selection to the President, will hardly bear that interpretation. There is undoubtedly force in the argument which is suggested against this system of in- discriminate promotion; but it is not a question of what the law ought to be, but of what the law is. A practical effect of the law which would be imdesirable cannot be allowed to overcome its express terms. Such operation of the law presents a question for the legisla- tive and not the executive branch of the Government. (17 Op. Atty. Gen., 36. But see notes to sec. 1458, R. S., as to constitution- ality of legislation requiring promotions by seniority on the active list.) Promotion on retired list an exception to settled policy. — Promotion in the case of a retired officer is necessarily an exceptional in- cident, due to the generosity of the Govern- ment, and not contemplated by the system of retirement. (27 Op. Atty. Gen., 214.) Sec. 1462. [Active duty for retired officers. ] No officer on the retired list of the Navy shall be employed on active duty except in time of war. — (3 Mar., 1873, c. 230, V. 17, p. 547.) Active duty for retired officers was authorized by act of June 7, 1900 (31 Stat., 703), which expired by its terms at the end of 12 years from date of its enactment. Active duty for retired officers, with their con- sent, was authorized by act of August 22, 1912 (37 Stat., 329). Active duty for retired oflBcers of the Navy, Marine Corps, or Coast Guard, during the existence of war or national emergency, was authorized bv act of July 1, 1918 (40 Stat., 717.) Army officers retired for physical disability are to be examined from time to time, and if found able to perform service of value to the Government shall be assigned to such duty as the Secretary of War may approve. (Act Aug. 29, 1916, 39 Stat., 629). Assignment of retired ofiicers to command, in time of war, was authorized by sections 1463 and 1464, Revised Statutes. Detail of retired officers to educational institu- tions, was authorized by section 1225, Re- \ised Statutes, as amended, and other laws noted under that section. Pay of retired officers employed on active duty, was fixed by section 1592, Re\dsed Stat- utes, by acts of August 29, 1916 (39 Stat., 581), and April 10, 1918 (40 Stat., 516), and also by the particular enactments, above cited, authorizing their employment on active duty. Promotion on retired list of officers employed on active duty pursuant to act of July 1, 1918 (40 Stat., 717), was authorized by that act. Retired enlisted men may be assigned to ac- tive duty in time of war or when a national emergency exists. (Act Aug. 29, 1916, 39 Stat., 591; see also act Mar. 3, 1915, 38 Stat., 941.) Promotion of men so em- ployed on active duty is authorized by act of July 1, 1918 (40 Stat., 719.) Historical note. — By act of March 3, 1873 (17 Stat., 556\ it was pro\'ided "that no officer on the retired list of the NaA^ shall be em- ployed on active duty except in time of war." At the date of this enactment, certain retired officers were employed on active duty, and the question arose whether they were entitled to be continued on such duty. It was held 656 The Navy. Pt.2. REVISED STATUTES. Sec. 1462. by the Comptroller of the Treasury, March 28, 1873 (see ''Acts and Resolutions Relating Chiefly to the Navy and Na\'y Department," 1872-1873, pp. 42, 43), that the prohibition in the act quoted applied only to putting officers on duty after the date of the act, and although it became immediately effective upon date of its approval, did not operate to deprive retired officers of duty pay for the period that they were continued on active duty after its enactmentj but that, "any officer, however, on the retired list, who, at the date of the act, was on duty under orders from the Navy Department, will be entitled to his duty pay until relieved, up to any period previous to the first of July next." By act of Jime 7, 1900 (31 Stat., 703), it was provided that any retired officer might be "or- dered" to active duty "dm-ing a period of twelve years from the passage of this act." Upon expiration of the period mentioned, all retired officers on active duty under orders issued during the said period, were detached from such duty, and thereafter no retired officers were employed on active duty until approval of the act of August 22, 1912 (37 Stat._, 329), and in accordance with the terms of said act. (See records of Bureau of Navigation, Navy Department, and Headquartei-s, U. S. Marine Corps.) Employment on active duty exception to general policy.— At the time of the passage of the act of June 7, 1900 [above noted], section 1462, Revised Statutes, prohibited the employment of retired officers on active duty except in time of war. There is no other statute in effect now [October 13, 1908], which authorizes the employment of such officers on active duty in time of peace. The act of June 7, 1900, made a specific exception to the statute then in force, and provided that during a limited period certain officers on the retired list, viz, those who might be selected by the Secre- tary of the Navy, might be ordered to such active duty as they aTe able to perform. The said act is, therefore, a special act relating to a particular subject, and makes exception to the general law in effect at its passage. (15 Comp. Dec, 235.) From sections 1459 and 1462, Revised Stat- utes, it appears to be the policy of the law to prevent the employment of officers on the re- tired list of the Navy, save under some ex- ceptional circumstances. (3 Comp. Dec, 581.) The act of 1900 making retired naval officers subject to be ordered to such active duty as they are able to perform must be read in connec- tion with and as part of the act authorizing their retirement, and read in view of the manifest purpose of that act. So read, it is certain that it does not mean that while a naval officer by his retirement is debarred from further promotion and its better pay, he still remains, in time of peace, subject to orders to the same permanent, continuous active duty at sea and on shore as before his retirement. On the contrary, it means, generally, that he is relieved and retired from active duty, but sub- ject in times of need (of which the Secretary is the judge) to be temporarily ordered to such active duty as he is able to perform. But these cases are exceptions, arising from necessity, and do not contemplate any general, permanent or continuous assignment of a retired naval officer to active duty or for a longer period than the necessity of the seindce requires. Taken Literally, this provision of the act of 1900 would authoiize the assignment of every retired naval officer to the same continuous and permanent active service, both at sea and on shore, as that upon which he first entered, while by his nominal retirement he is debarred from that promotion and better pay which, but for his retirement, he might have earned by the same service. This is not what the law means. (25 Op. Atty. Gen., 508; but see laws noted above . ) Examination of retired oflleer before employment on active duty. — It is not to be presumed that the President will exercise the power of ordering retired officers to active duty in time of war unless, upon full examina- tion, he shall be satisfied that they are compe- tent for the higher grade on the active list which they have reached by promotion on the retired List. Such investigation will un- doubtedly be made in view of the fact that these promotions on the retired list are not accom- panied with the careful examinations which attend those upon the active list. (17 Op. Atty. Gen., 36, construing sec. 1461, R. S.) Consent of Senate required before orders to active duty in time of wa,r. — Retired officers can be ordered to active duty in time of war only by the President, by and with the ad\'ice and consent of the Senate. (17 Op. Atty. Gen., 36, citmg sec. 1463, R. S. But see laws noted above.) Retired officer on active duty is not an officer of the active list. — It will be observed that retired officers called upon active duty do not return to the active list unless under circumstances of a peculiar character. (17 Op. Atty. Gen., 36, citing sec. 1465, R. S.) The act of June 7, 1900, authorizes the em- ployment of retired officers on active duty, but it does not restore them to the active list. (15 Comp. Dec, 230.) A retired officer of the Navy on active duty under the provisions of the act of Jime 7, 1900, was held not on the active list of the Navy, within the meanin* of the act of May 13, 1908 (35 Stat., 128), which allowed a gratuity of six months' pay to the widow or any designated beneficiary upon the death of an officer on the active list of the Navy in line of duty; and the widow of a retired officer of the Navy dying while on such active duty was held not en- titled to the benefits of said provision of the act of May 13, 1908. (15 Comp. Dec, 230.) A retired officer of the Army assigned to active duty is not restored to the active List, and where such an officer dies on duty his burial expenses can not be defrayed from an appropriation for disposition of the remains of officers on the "active List." (19 Comp. Dec, 540.) When a retired officer is assigned to active duty and subsequently detached therefrom, this does not operate as a new retirement. The retirement of an officer is a proceeding that can only take place m a prescribed man- ner, and it is not pretended that such proceed- ing occurred, with reference to the officer in 657 Sec. 1462. PL 2. REVISED STATUTES. The Navy. this case, more than once. (Roget i'. U. S., 148 U. S., 167.) Retired officer practically restored to active list while on duty. — The effect of the act of June 7, 1900, is ]iractically to restore retired olficer.'', wlieu employed ou active duty, to the active list for pay purjjoses, and their pay is not affected by the circumstance of their retirement or by the grade or rank which they may hokl on tlie retired list. (13 Comp. Dec, 241; see also 11 Comp. Dec., 37().) Cannot be ordered to duty or appointed to office limited to active list. — The act of June 7, 1900 (31 Stat., 703), did not operate nor was it intended to transfer back to the acti^■e list any retired officer when ordered to active duty. On the contrary, he is still a retired officer and is borne as such upon the retired list, though temporarily performing active duty. Hence, if any law requires that a certain duty be performed, or a certain place be filled, by an officer of the active list, this pro- vision does not authorize the assignment of a retired officer thereto. This does not mean that a retired officer may not, under this provision, be assigned to duties usually performed by officers on the active list, but only that he can not be so assigned where any law requires the duty to be performed by an officer of the other class. (25 Op. Atty. Gen., 508.) If the act of June 7, 1900 (31 Stat., 703), applies to retired officers of the Marme Corps, nevertheless, it would not ha^'e the effect of authorizing a retired marine officer to be de- tailed to active duty as commandant of the Marine Corps when the law expressly requires that the commandant shall be selected from officers on the active list of the Marine Corps. (28 Op. Atty. Gen., 486; see below, "Employ- ment of retired marme officers on active duty.") At the time the act of March 3, 1883 (22 Stat, 553), was enacted, providing for the detail as superuitendent of the State, War, and Navy Building of an officer of the Engineer Corps of the Army or Navy, there was no warrant for the employment on active duty of retired officers of either branch of the service in time of peace, nor does that act profess to give such warrant. Such officers were then exempt from active serv- ice; therefore, this act would not refer to them nor authorize their appointment. Hence, the only conclusion possible is that this appoint- ment was intended to be made from the active list, the onlv engineer officers who were then subject to that duty. (25 Op. Atty. Gen., 508.) The question is not as to the duties to which a retired officer may be ordered in general, but is as to the class of officers from which, under the act of 1883, the President must designate this supermtendent. It is unimportant that under the later act a retired officer may be ordered to any active duty, so long as the earlier act requires this particular appointment to be made from the other class. This act of 1883 means today just what it meant when enacted. The fact that the later law has made retired officers generally subject to be ordered to any active duty, has not amended or changed the previous law in this case. (25 Op. Atty. Gen., 508.) Again, the permanent designation of this superintendent is an imperative order to con- tinuous duty, and this is quite incomjjatible with the selection of a retired officer, who is generally exempt from such orders. It can not be held that Ihi.sactauthorizcd an appointment, which is an ortler from which such officers were exempt. It is easy to see here that the fact that the duties imposed upon this superintend- ent requhe for then performance an olficer fully qualified for active duty is a sufficient reason why this appointment was required to l)e made from the active list, and not from those who have already passed the period of their full usefulness, and have on that account been retired from active serA-ice. (25 Op. Atty. Gen., 508.) For other cases, see notes to section 421, Revised Statutes, "I. Appointment of Chiefs of Bureaus, " and section 1225, Revised Statutes. Requiring retired officer to prepare affi- davit is an employment on active duty. — The act of June 7, 1900 (31 Stat., 703), contains no specification as to the character of the duties to which a retired officer may be ordered, except "such as he is able to perform, " and there is no limit as to the time he may be employed, except the life of the act, so that he may be employed in the discretion of the Secretary of the Navy as well for one day as for any longer period, and at his home as well as any other place. Held, that a letter from the Secretary of the Navy, addressed to a retired officer at his home, en- closing a large batch of papers with the follow- ing statement: "It is desired that you will, as soon as practicable, prepare and forward to the Department for transmission to the Secretary of State your affida\it as requested by him in rebuttal of the German case, " and not stating that "this employment on shore duty is re- quired by the public interest, " employed the officer on active duty Avithin the meaning of the act of June 7, 1900, and entitled him to active- duty pay. (10 Comp. Dec, 467.) Attending court-martial as witness or accused. — The duty of attending as a witness before a general coint-martial is not one of the duties to which a retired Army officer may be assigned by the Secretary of War in time of peace. But a retired officer, under section 1256, Revised Statutc^s [pro\-iding that retired Army officers shall be subject to trial by court- martial] can be ordered before a general court- martial for a breach of the Articles of War, and would be entitled to mileage for travel in obey- mg such order. (10 Comp. Dec, 51, citing 7 Comp. Dec, 97.) An order issued in such a case, however, is to be distmguished from an order to attend such a court as a witness. It is a duty enjoined upon him by statute in one case while in the other it is a duty which can only be requhed of him by subpoena as in the case of a civilian witness. (10 Comp. Dec, 51.) For other cases, see note to section 850, Revised Stattites. Orders to perform active duty after retirement must be specific. — An order of the President placing an officer of the Navy upon the retired list on account of age changes the status of such officer wherever he may be and whatever duty he may be performing, and thereafter he is entitled to retired pay only, unless such status is changed by some subsequent order of the Secretary of the Navy 658 The Navy. Ft. 2. REVISED STATUTES. Sec. 1463. pursuant to law. It may be that the Secretary of the Navy, under the act of June 7. 1900, might issue a preliminary order in terms assigning an officer to duty after retirement, but such order should be certain in its terms and not given that effect bv strained construc- tion, (terry 2). U. S.. Ct. 01s.. No. 28148, 86 S. and .\. Memo., 644; seealso 17 Comp. Dec, 533.) The retirement of an officer for age thereby detaches him from active duty, and unless thereafter assigned to active duty by the Secre- tary of the Navy in accordance with law. he is entitled only to retired pay, notwithstanding that he was retained on active duty by the commanding officer of his vessel. The latter is not authorized to retain in active service an officer who has been retired pursuant to section 1444, Revised Statutes, unless it is done in accordance with a decision of the Secretary of the Navy in a particular case. It may be true that in some cases the acts of subordinate offi- cials are taken as the acts of the head of the department to which they belong: where, how- ever, the statute requires the exercise of judg- ment or discretion, as the act of June 7, 1900, the officer in whom such discretion is vested must act for himself, and he can not delegate that power to another. (9 Comp. Dec. 299; compare 9 Comp. Dec, 20, noted under sec 1444, R. S.) An officer, while under treatment in hospital, was placed on the retu'ed list and ordered to proceed at his convenience to his home: Hdd, that an officer placed on the retired list is en- titled to retii'ed pay only, no matter what his previous status may have been, unless placed on duty by some subsequent order; the above order did not have the effect of placing the officer on duty while traveling to his home. (File 26254-2, Apr. 29. 1908.) Detachment from active duty without express orders. — Notice of the dissolution of a court-martial on which a retired officer of the Marine Corps was ordered to duty as a mem- ber is sufficient to terminate his assignment to active duty under that order, although no orders were issued expressly detaching him from active dutv. (Comp. Dec. Sep't. 29, 1910. 115 S. and A. Memo., 1578; Gibson v. U. S., 47 Ct. Cls., 554.) A formal order detaching or relieving reth-ed officers from active duty is not necessary; when the duty to which the officer is assigned ends the order assigning him to active dutv expires. (Gibson r. U.'S., 47 Ct. Cls., 554.) Leave of absence does not detach from active duty. — A retired officer of the Navy who is gi-anted a leave of absence is not by such gi'ant returned to his former condition as a retired officer, but is in the leave status of an officer on the active list, and he is entitled while on such lea've to the pay j^roAided for officers of the active list on leave of absence. (11 Comp. Dec, 376, construing act of June 7, 1900.) "\Mien, in the discretion of the Secretary of the Navy, the services of a retired officer are no longer required on active duty, his order will relegate such officer to the retired status, but an order granting leave of absence for a specified time does not have that effect. (11 Comp. Dec, 376.) Employment of retired Marine ofa.cers on active duty. — The assignment to active duty of retired Marine officers is governed by statutes relating to the Navy. Section 1622, Revised Statutes, does not authorize the assign- ment of Marine officers to active duty in ac- cordance with laws pertaining to the Army. (Jonas j;. U. S., 50 Ct. Cls.. 281; file 27231^7, May 31. 1912; see also sec 1622, R. S.) Pay and allowances while employed on active duty. — See laws noted above; and see section 1592, Revised Statutes. Sec. 1463. [Assignment of retired officers to command in time of war.] In time of war the President, by and with the advice and consent of the Senate, may detail officers on the retired hst for the command of squadrons and single ships, when he beUeves that the good of the service requires that they shall be so placed in command.— (21 Dec, 1861, c. 1, s. .3, v. 12, p. 329. 3 Mar., 1873, c. 230, s. 1, V. 17, p. 547.) in time of peace from the grade of reaJ admiral on the active list, but this shall not be held to amend or repeal sections 1434. 1463, and 1464. Re\Tsed Statutes. (Act May 22, 1917, sec 18. 40 Stat., 89.) Active duty in general. — See section 1462, Re\'ised' Statutes, and note thereto. Assignment of officers on active list to command of squadrons, with rank and title of "flag officer, " was authorized by section 1434, Revised Statutes. By act of March 3, 1901 (31 Stat.. 1133), it was provided that the President may formulate appropriate rules governing assignments to command of vessels and squadrons. Designation of officers for the command of fleets or subdivisions thereof, with the rank and pay of admiral or vice admiral, shall be made in time of war from the grades of rear admiral or captain ou the active list, and Powers of President as Commander in Chief can not be impaired by Congress. — See note to Constitution, Article II, section 2, clause 1. President's power with reference to the retired list depends upon laws enacted by Con- gress. — See note to Constitution. Article II, section 2. clause 1, under "I. Powers of Commander in Chief. " 659 Sec. 1465. n. J. REVISED STATUTES. The Navy, Effect of orders under tliis section. — officer in time of great public emergency. It Retired officers can be ordered to active duty wall be observed that retired officers thus called in time of war only by the President, by and upon active duty do not return to the active with the advice and conseiit of the Senate. list unless under circumstances of a peculiar The power of the President with the consent cliaracter. (17 Op. Atty. Gen., 3G, citing sec. of the Senate is in reality. althouii;h not in form, 1-1G5. R. S.) a power to give a new commission to a retired Sec. 1464. [Commanding officers of squadrons to have rank of '' flag-officer. "'] In making said details the President may select any officer not below the grade of commander and assign him to the command of a squadron, with the rank and title of "flag-officer;" and any officer so assigned shall have the same authority and receive the same obedience from the commanders of ships in his squath'on holding commissions of an older date than his that he would be enti- tled to receive if his commission were the oldest. — (21 Dec, 1861, c. 1, s. 4, v. 12, p. 329.) See section 1434. Revised Statutes, and note thereto, with reference to officers of the active list assigned to command of squad- rons. This section not amended or repealed by act of May 22, 1917, section 18 (40 Stat., 89), noted above, under section 1463, Revised Statutes. Sec. 1466. [Restoration of retired officers to active list.] Retired officers so detailed for the command of squadrons and single ships may be restored to the active list, if, upon the recommendation of the President, they shall receive a vote of thanks of Congress for their services and gallantry in action against the enem^', and not otherwdse. — (21 Dec, 1861, c 1, s. 3, v. 12, p. 329.) Restoration to active list is authorized by special enactment of Congress in individ- ual cases, as for example, act of August 29, 1916 (39 Stat., 602). Veto by President of bill to restore retired officers to active list. — See note to Consti- tution, Article I, section 7, clause 2. Vote of thanks, effect of. — See sections 1365, 1446, 1508-1510, Re\-ised Statutes, and notes thereto. Restoration of retired oflicer to active list. — See note to section 1457, Revised Statutes, "Correction of erroneous retire- ment"; and note to section 1459, Revised Statutes. It may be questioned whether Congress has constitutional power to authorize executive action which should result in setting aside the legal effect of the proceedings of a naval board and in restoring to the active list of the Navy one who had been retired thereunder. The law divides the Navy into two distinct classes, with distinct duties and distinct grades of pay. The retired list was to be fdled from the active list, and an officer once placed upon it was off the active list and not a subject of promotion. The higher grades on the active list were to be constantly supplied by streams of promotion from below, the fountain being at the lowest grade of all and supplied from without. The practical construction put upon the statute by the executive has been that officers are placed upon each of these lists by the action of the President in conjunction with the Senate, the concurrence of the Senate to the appointment of an officer on the retired list being obtained by its approval of the nomination of his suc- cessor in his place by name. It may be questioned whether the Congress could, with- out abolishing the office, constitutionally re- move an officer from an office into which he had been legally inducted, and still more whether it could place him in another office without the constitutional action of the Presi- dent. These points not decided. (Thompson V. U. S., 18 Ct. Cls., 604, 612.) An officer of the Army who has been retired from active service in accordance with law can not be reinstated in liis former place by an order of the President, though the vacancy caused by his rethement may not have been filled. (13 Op. Atty. Gen., 209, citing 8 Op. Atty. Gen., 223.) Army officers who have been retired from active service bv the President under the twelfth section of the act of July 17, 1862, can not be reinstated on the active list except by a new appointment ^vith the advice and consent of the Senate, and where vacancies on the active list exist which may lawfully be filled. (13 Op. Atty. Gen., 99.) Section 2 of the act of June 18, 1878 (20 Stat., 165), provided that the President may in certain cases, where a prescribed procedure has not been followed in the retirement of an officer not recommended for promotion, " Order and direct the reexamination of the same." It was not intended by this provision to restore the officer to the active list and thereby to repeal the laws limiting the active force of the Navy. If such had been the intention, Congi'ess would have said so. (Thompson v. U. S., 18 Ct. Cls., 604, 615.) 660 The Navy. Pt.2. REVISED STATUTES. Sec. 1465. The law which makes retired officers of the Navy ''ineligible to further promotion," in- tends only that they shall cease to be eligible to promotion as a matter of course in the routine of naval usage, and according to rank. It must be so, because their places have been filled, and the statute-aggregate has been at- tained by the promotion of those who remain on the active-service list. It does not follow that they may not be promoted to inde- pendent vacancies. No act of Congress could limit to tliat degree the constitutional power of appointment. The true solution of the problem is to renominate to the Senate, and commission anew such of the officers of the re- served list, if any there be, as it may be deshed to restore to their pre^ious status in the Navy._ (8 Op. Atty. Gen., 223, 236.) Retired officers of the Navy may legally be restored to the active list by temporary ap- pointment where vacancies exist which may lawfully be filled by temporary appointment in accordance with the act of May 22, 1917 (40 Stat., 84). (File 27231-103, July 17, 1917.) Full effect may be given to section 1465, Revised Statutes, by holding that it authorizes the restoration of retii-ed officers to the active list under the circumstances there prescribed without reference to the condition of the active list at the time; that is to say, whetlier or not vacancies exist which might otherwise law- fully be filled. This construction is particu- larly wan-anted by the ruling of the Attorney General that no act of Congress could limit the constitutional power of appointment to the extent of rendering retired officers ineligible for appointment to vacancies existing on the active list. (File 27231-103, July 17, 1917, citing 8 Op. Atty. Gen.. 223, 236.) 661 CHAPTER FOUR. RANK AND PRECEDENCE, PROMOTION AND ADVANCEMENT. OP RANK AND PRECEDENCE. Sec. X4()G. Relative rank of Navy and Army officers. 1467. Rank according to date. 1468. Commanding officers of vessels and sta- tions. 1469. Aid or executive officer. 1470. Staff officers, wfien to communicate di- rectly ^vitll commanding officers. 1471. Chiefs of Bureaus. 1472. Chief of Bureau, when below rank of commodore. 1473. Retired from position of chief of Bureau. 1474. Medical Corps. 1475. Sui)ply Corps. 1476. Engineer Corps. 1477. Constructors. 1478. Ci\'il engineers. 1479. Chaplains. 1480. Professors of mathematics. Promotions in staff corps. 1481. When retired for age or length of service. 1482. Retired for causes incident to ser\dce. 1483. Graduates of Naval Academy. 1484. Engineers graduated at Naval Academy. 1485. Precedence by length of service. 1486. Length of service, how estimated. 1487. Quarters. 1488. Military command. 1489. Processions, boards, &c. 1490. Ensigns as steerage officers. 1491. Warrant officers. 1492. Coast Guard officers serving as part of the Navy. OF PROMOTION AND ADVANCEMENT. 1493. Physical examination. 1494. Physical disqualification by woimds. 1495. Examinations, when, and effect of. 1496. Mental, moral, and professional examina- tion. 1497. Promotion to rear-admiral in time of peace. 1498. Examining board. 1499. Powers of. 1500. Officers may be present and make state- ment. 1501. Record. 1502. Re^dsion by the President. 1503. No officer to be rejected without examina- tion. 1504. Report of recommendation. 1505. Failing in examination. 1506. Advancement in number. 1507. Promotion when grade is full. 1508. Officers receiving thanks of Congress. 1509. Effect of vote of^thanks. 1510. Vacancies occasioned by deaths, &c., of officers thanked. Sec. 1466. [Relative rank of Navy and Army officers.] The relative rank between officers of the Navy, whether on the active or retired list, and officers of the Army, shall be as follows, lineal rank only being considered • The Vice- Admiral shall rank with the Lieutenant-General. Rear-admirals with major-generals. Commodores with brigadier-generals. Captains with colonels. Commanders with lieutenant-colonels. Lieutenant-commanders with majors. Lieutenants with captains. Masters with first lieutenants. Ensigns with second lieutenants. — (16 July, 1862, c. 183, s. 13, v. 12, p. 585. 21 Dec, 1864, c. 6, s. 1, v. 13, p. 420. 25 July, 1866, c. 231. s. 1, v. 14, p. 222. 2 Mar., 1867, c. 174, s. 1, v. 14, pp. 515, 516.) As to grades of admiral, Aice admiral, and com- modore, see notes to section 1362, Re\ised Statutes. As to change in designation of "masters" to "lieutenants (junior grade)," see note to section 1362, Ile\'ised Statutes. By act of October 6, 1917, section 3 (40 Stat., 410), the President was authorized for the period of the existing emergency only to appoint as generals the Chief of Staff and the commander of the United States forces in France; and as lieutenant generals each commander of an Army or Army Corps organized as authorized by existing law. By act of October 6, 1917, sections_3 (40 Stat., 411), it was provided that "brigadier gen- erals of the Army shall hereafter rank rel- atively with rear admirals of the lower half of the grade." 662 The Navy. PL 2. REVISED STATUTES. Sec. 1466. Admiral of the Navy ranks vidth General in the Army. — This section provides for rela- tive rank between officers of the Na\'y and officers of the Army, from the \'ice admiral, who ranks with the lieutenant general of the Army, to ensigns, the lowest commissioned officers of the Naw, who rank with second lieutenants in the Army; but no such relative rank was pro- vided for the Admiral of the Navy. The grade of Admiral in the Na\'y is the gi'ade next above that of \'ice admiral, and the next grade in the Army above that of lieutenant general, with which the grade of Aice admiral corresponds in rank, was that of General of the Army. The latter grade ceased to exist August 5, 1888, by the death of Gen. Philip H. Sheridan, the then incumbent, and has not since been re\-ived. [But see act of Oct. 6, 1917, noted above.] Al- though the law does not specify any grade in the Army with which the grade of Admiral is to be ranked, the x'easonable intent of section 13 of the Na\"V' personnel act approved March 3, 1899 (30 Stat., 1007), pro\iding that, subject to certain exceptions, the commissioned officers of the Navy should receiA'e the same pay and allowances as officers of corresponding rank in the Army, was that the grade of Admiral should be regarded as corresponding in rank with the grade of General as the latter grade formerly existed, and that the Admiral of the NaAy should receive the same pay and allowances which the General of the Armv formerly re- ceived. (6 Gomp. Dec, 868.) By NaA-y Regulations, 1913 (Art. R 1010); it was pro^'ided that "Admiral shall rank with General." By a resolution of the Continental Congress November 15, 1776, it was pro\-ided "That the rank of the naval officers be, to the rank of ofiicers in the land ser\-ice, as follows: "Admiral, as a general. "Vice admiral, as a lieutenant general. "Rear admiral, as a major general. "Commodore, as a brigadier general. "Captain of a ship of 40 guns and upwards, as a colonel. "Captain of a ship of 20 to 40 guns, as a lieutenant colonel. "Captain of a ship of 10 to 20 guns, as a major. "Lieutenant in the Navy, as a captain." Aid to Admiral of the Navy does not rank with aid to General in the Army. — A lieutenant (junior grade) in the Navy serv- ing as aid to the Admiral of the Nav>' is entitled only to the pay of his rank, which con-esponds to that of a first lieutenant in the Army. The fact that by law (sec. 1096, R. S.) aids on the staff of the General of the Army were entitled to the rank of colonel of Cavalry "does not entitle an officer of the Navy to the rank of captain in the Na\y, corresponding to that of colonel in the Army, while serving as aid to the Admiral of the Navy. By section 1096 a lieutenant or captain selected as aid by the General of the Army had conferred uponhim while serving as such aid the rank of colonel of Cavalry, and by section 1261 he was entitled to the pav of a colonel. In 16 Op. Atty. Gen., 551, it was held that the rank conferred by section 1096 entitled such aids tothe precedence, when serving upon courts-martial, courts of inquiry, military boards, and the like, to which the same rank would entitle an officer of the line of staff (inde- pendent of the office of aid) when thus serving. There is no statute or regulation which confers upon an officer of the Navy, while serving as aid to the Admiral, any different rank from that which he held while not so serving. To allow him the pay of a colonel while so serving would be to assiune that his rank was changed from that of a lieutenant (junior grade) to that of a captain in the Navy. Accordingly, held that such officer can not be allowed any pay in addition to the pay of the office and rank of lieutenant (junior grade) which he held while ser^ing as aid to the Admiral. (11 Comp. Dec, 733; see also 21 Comp. Dec, 840, as to officer serving as aid to a rear admiral temporarily holding the rank of admiral as commander in chief of a fleet.) While section 1094, Re\ised Statutes, pro- \ided that the Army of the United States should consist, among other ofhcers, of "one General," said section concluded with the following: "Provided, That when a vacancy occurs in the office of General or lieutenant general such office shall cease, and all enact- ments creating or regulating such offices shall , respectively, be held to be repealed." Upon a vacancy occumng in the office of General under this pro\iso that office ceased to exist and section 1096, Revised Statutes, pro\id- ing for aids to the General of the Army, who should have while so ser\ing the rank of colonel of cavalry, Avas therebj' repealed. Even concedins: that section 1096 was re\ived as the result of the act of June 1, 1888 (25 Stat., 165), by A-irtue of which I>ieut. Gen. Sheridan was made for life the General of the Army, said section did not remain in force after the death of Gen. Sheridan, since which time there is no officer of the Army to which pay of aids to the Admiral of the Navy can be assimilated under section 13 of the Navv personnel act of March 3, 1899 (30 Stat., 1007). (Wood i-. U. S., 224 U. S., 132, aflirming 44 Ct. Cls., 611.) Grade of commodore abolished on the active list. — Section 7 of the Navv personnel act of March 3, 1899 (30 Stat., 1005), in effect abolishes the rank of commodore, at least so far as respects the active list of the line of the NaAy, and lifts those in that rank to that of rear admiral. Prior to the act of 1899 the cor- responding ranks of officers of the Navy and the Army were rear admiral and major general, commodore and brigadier general, captain and colonel. By that act the rank of commodore was abolished, although that of brigadier general was undisturbed. No change was made in the relative rank of captain and colonel or of rear admiral and major general, but the legislation left one rank in the Army to which there was no corresponding rank in the Na\y. The statute in effect lifted the rank in the Navy, which was corresponding to that of brigadier general in the Army, to that of rear admiral, corresponding with that of major general in the Army. The individuals thus raised in rank were not so raised on account of distinguished serAices or for any personal reason, but simply in consequence of the abolishing of the official rank they had held. (Rodgers^i;. U. S., 185 U. S., 83.) G63 Sec. 1466. Pt.2. REVISED STATUTES. The Navy, In the case of Rodgers v. United States (185 U. S., 83), it was stated with reference to the act of March 3, J8!)9: "The statute in effect lifted the rank in the Na\'y, which was cor- responding: to that of brigadier general in the Army, totliat of rear admiral and corresponding with that of major treneral in the Army." The Supreme Court m the above quotation was speaking of the acti-s-e list of the Na^^. (File 3980-1402, Oct. 31, 1917.) The grade of commodore was omitted from the active list bv the Na^y personnel act of March 3, 1899, section 7 (30 Stat., 1005). That act, however, while thus abolishing the grade of commodore on the active list, did not thereby affect the rank of ollicers then on the retired list having the rank of commodore, and it con- tained several pro^isions for the future retire- ment of officers with that rank under certain prescribed conditions, \\z, by section 7 of said act it was provided ""that nothing contained in this section shall be construed to prevent the retirement of officers who now have the rank or relati^•e rank of commodore with the rank and pay of that grade:" by section 8 (30 Stat., 1006) it was provided that officers retired on their own applications for the pur- pose of creating a prescribed minimum of annual vacancies should be placed on the retired list with the rank and retired pay of the ''next higher grade, as now existing, including the grade of commodore;" by section 9 (30 Stat., 1006), it was pro\dded tliat officers retired by selection for the purpose of creating a pre- scribed minimum of annual vacancies should be placed on the retired list with the rank and retired pay of the "next higher grade, in- cluding the grade of commodore, which is re- tained on the retired list for this purpose." None of these pro\'isions for retirement with the rank of commodore is now in force. Under section 1481, Revised Statutes, certain staff officers are retired with the rank of commodore, this being the only case in which any officers are now placed on the retired list with that rank, retirements under section 1473, Revised Statutes, being made in practice with the rank of rear admiral instead of commodore as was pro^■ided therein. The naval appropria- tion act of May 13, 1908 (35 Stat., 127), which established new rates of pay for the Na^'y, provided that "hereafter all commissioned officers of the active list of the NaAy shall re- ceive the same pay and allowances accord- ing to rank and length of service, and the annual pay of each grade shall be as follows: * * * rear admiral, second nine, or commodore, six thousand dollars." There were no commo- dores on the actire list at the time of the en- actment last cited, but there were then and are now a number of officers on the retired list with the rank of commodore, and, as above stated, retirements are still being made with that rank under section 1481, Revised Statutes. The rank of commodore has continued to be assimilated with that of brigadier general bv the NaA-y Regulations (Art. R 1010, 1913), notwith- standing the expression of the Supreme Court in the Rodgers case that the legislation of March 3, 1899, "left one rank in the Army to which there was no corresponding rank in the Navy." Inasmuch as section 1466 proAides that the "relative rank between officers of the Navy, whether on the acti\e or retired list, and officers of the Army," shall be as specified therein, the NaA-y Regulations have been correct in continuing to show the rank of commodore as assimilated with that of brigadier general (File 3980-1402, Oct. 31, 1917.) Section 7 of the Navy personnel act of March 3, 1899 (30 Stat., 1005), eliminated the rank or grade of commodore from the active list of the Navy. (11 Comp. Dec, 547.) The commodores on the active list and the rear admirals of the Navy were amalgamated on account of international relationships the consideration of which caused the Navy De- partment to regard the complicatons confront- ing it as inimical to the honor and dignity of this Nation because of the adverse effect upon its high ranking representatives in their asso- ciation with foreign officers. (File 3980- 1402:3, Mar. 4, 1918.) T-wo grades of rear admirals for pay purposes. — Rear admirals were divided into two grades for pay purposes by section 7 of the Navy personnel act of March 3, 1899 (30 Stat., 1005), rear admirals of the "nine lower num- bers " being given the pay and allowances of brigadier generals of the Army, while rear admirals of the upper nine numbers were not specifically proAnded for, but under the general proAdsions contained in section 13 of the same act they received the same pay and allowances as officers of the corresponding rank in the Army, viz, major general, that being the rank corre- sponding to the rank of rear admiral according to section 1466. This diA-i-sion of rear admirals into two grades for pay purposes was continued in effectby the act of May 13, 1908 (35 Stat., 127), which pro^nded different rates of pay for "rear admirals, first nine," and "rear admirals, second nine"; also by the act of August 29. 1916 (39 Stat., 577), which provided that "here- after pay and allowances of officers in the upper half of the grade or rank of rear admiral, includ- ing the staff corps and including staff officers heretofore permanently commissioned with the rank of rear admiral, shall be that now allowed by law for the first nine rear admirals, and the pay and allowances of officers in the lower half of the grade or rank of rear admiral, including the staff corps, shall be that now allowed by law for the second nine rear admirals." (File 3980-1402, Oct. 31, 1917.) The pro\dsion fixing the pay of the rear admirals of the lower half of that grade to correspond Avith the pay of a brigadier general arose from the fact that the relative rank of officers of the Army and NaA-y had been so ad- justed by statute as to rank commodores with brigadier generals, and the rank of commodore being dropped from the service by said Navy personnel act of March 3, 1899, section 7, the pay of a bngadier general was given to the nine lower numbers of rear admirals, who would otherwise have had the rank of commodore with the corresponding pay of brigadier gen- erals. (Gibson v. U. S., 194 U. S., 182.) Is it unreasonable to suppose that Congress thought it unwise to give to those officers (who had neither by length of ser\ace or by personal distinction become entitled to the position of rear admiral as it had stood in the past) all the 664 The Navy. Pt.2. REVISED STATUTES. Sec. 1466. benefits of such position? Would it be un- natural for Congress to bear in mind those who by length of service or by personal distinction had already earned that position, and provide that in at least the matter of pay there should be some recognition of the fact? Again, is it unreasonable to believe that Congress intended that those officers whose past services placed them according to their pnor relative rank side by side with brigadier generals of the Army should not by a mere change of statute be given a benefit in salary which was not at the same time accorded to brigadier generals in the Army? May not this explain its action in so dividing the rear admirals into two classes, one composed substantially of former rear admirals, equal both in rank and pay with major generals in the Army, and the other of those who in the past were only commodores, to whom was given the rank of rear admirals but the pay of brigadier generals in the Army? (Rodgers v. U. S., 185 U. S., 83.) Rear admirals being divided into two classes for the purpose of pay, and there being no ques- tion that had plaintiff been promoted in the active service from captain to rear admiral he would have passed into the lower grade of rear admirals, so far at least as his pay was concerned, and would have received so long as within that niunber the pay of a brigadier general, not- withstanding that for all other purposes he was entitled to the rank and privileges of a rear admiral, held that the advancement of plaintiff on the retired list in accordance with section 11 of the Navy personnel act of March 3, 1899 (30 Stat., 1007), to receive "the rank and three- fourths the sea pay of the next higher grade," entitled him to the pay of the next higher rank, and but for the difference made in the pay of rear admirals would entitle him to three-fourths the full pay of that rank, but taking one step upward for the purpose of pay he passes into and not over the next pay grade, which is that of the nine lower numbers. (Gibson v. U. S., 194 U. S., 182.) All rear adtairals rank with raajor generals.^Rear admirals of the lower half, except for purposes of their own pay and allow- ances, are rear admirals with the relative rank, under section 1466, Revised Statutes, of major generals in the Army; and their aids are entitled under section 1261, Revised Statutes, to the addi- tional pay provided by law for aids to major generals in the Army, and not merely to the^ddi- tional pay provided for aids to brigadier generals in the Array. It will be noted that the proviso to section 7 of the Navy personnel act of March 3, 1899 (30 Stat., 1005), does not specify that a rear admiral of the lower half shall have the relative ran^and pay of a brigadier general, but merely that he shall receive the same pay and allowances. This proviso does not affect the rank given them. If Congress had intended to assimilate their rank as well as pay and allowances to that of a brigadier general it might easilv have said so. (11 Comp. Dec, 547.) It is established that while there are two diWsions in the grade of rear admiral for pay purposes, nevertheless all officers in that grade for all other purposes are entitled to the same rank and privileges. (File 3980-1402, Oct. 31, 1917.) The rank of all rear admirals is assimilated by section 1466 to that of major generals in the Army. (6 Comp. Dec, 960.) A rear admiral whether on the active or retired list corresponds in rank with a major general in the Army. Accordingly held that a retired officer on active duty as aid to a retired rear admiral employed on active duty is entitled to the additional pay pro\'ided by law for aids to major generals in the Arm v. (14 Comp. Dec, 471.) Temporary assignment to rank of rear admiral. — The assignment of a captain of the Navy to duty in command of a squadron with the rank and title of rear admiral, by authority of section 1434, Revised Statutes, does not make him a rear admiral within the meaning of the act of May 13, 1908 (35 Stat., 128), providing additional pay for aids to rear admirals. (17 Comp. Dec, 54; see also note to sec. 14.34, R. S.) Relative rank of brigadier generals and rear admirals of the lower half. — The act of October 6, 1917, section 3 (40 Stat., 411), provides that "brigadier generals of the Army shall hereafter rank relatively with rear ad- mirals of the lower half of the grade." This is materially different from stating, conversely, that "rear admirals of the lower half of the grade shall hereafter rank relatively with brig- adier generals of the Army." If, for example, the pay of rear admirals of the lower half had been in the past higher than that allowed brigadier generals in the Army, and tho act of October 6, 1917, had provided that brigadier generals should thereafter receive the same pay as rear admirals of the lower half, it is apparent that this would have resulted in increasing the pay of brigadier generals to that provided for rear admirals of the lower half; whereas, had it been provided iinder the same circumstances that rear admirals of the lower half should there- after receive the same pay as brigadier generals of the Army, this would have resulted in reduc- ing the pay of rear admirals of the lower half to that fixed for brigadier generals. The same distinction exists with reference to the rank of the officers concerned. In the past the rank of rear admirals of the lower half has been higher than that of brigadier generals, viz, it has been the same in all respects as that of ma- jor generals. Under these circumstances Con- gress did not provide that hereafter the rank of rear admirals of the lower half shall be the same as that of brigadier generals, which wouid have resulted in reducing the rank previously enjoyed by such rear admirals, but on the contrary it pro- vided that hereafter the rank of brigadier gen- erals shall be the same as that of rear admirals of the lower half, thereby elevating the rank of brigadier generals while leaA'ing the rank of rear admirals of the lower half the same as it previously had been. In other words, rear admirals of the lower half continue by law to rank with major generals in the Army, the only change being that now brigadier generals of the Army rank with rear admirals of the lower half. Unless this were so, rear admirals of the lower half who prior to the act of October 6, 1917, ranked ahead of all major generals of a later date of commission would now be required 665 Sec. 1466. /'/. ?. REVISED STATUTES. The Navy. to take rank behind all major generals, includ- ing those of a later date of connmssion whom they had previously outranked. This would amount to nothing more nor less than a reduc- tion in the rank of rear admirals of tlie lower half, and that without any corresponding ad- vantage to brigadier generals for whose benefit the amenilment of October (i, 1917, was enacted. (File 3980-1402, Oct. 31, 1917.) Secticn 14()() provides that commodores, whetlier on the active or retired list, shall rank with l>rigadier generals. If the rank of luiga- diergenerals is "elevated, as it has been by the act of October 0, 1917, the necessary conse- quence is to elevate correspondingly the rank of commodores, just as any increase in the pay of In'igadier generals must have resulted in automatically increasing the pay of commodores if the pay of the latter, instead of their rank, had been assimilated to that of Ijrigadier gen- erals. In other words, commodores have ranked with brigadier generals in accordance with explicit statutory enactment, and must continue so to rank unless and until otherwise provided by Congress. It follows that under the law commodores rank with brigadier gen- erals, brigadier generals rank with rear admirals of the lower half, and rear admirals of the lower half rank with major generals. Had tliis ]:)een a question of pay instead of rank there would be no difficulty in giAdng the law full force and effect. That is, had it been been pro^ided that commodores should have the same pay as brigadier generals, brigadier generals the same pay as rear admirals of the lower half, and rear admirals of the lower half the same pay as major generals, it is evident that the pay of all four grades would have been identical. However, in the matter of rank insurmountable obstacles exist to giving effect to this legislation as thus construed. The case is the same as though it were stated that major generals, rear admirals of the lower half, brigadier generals, and com- modores are all on precisely the same footing in relation to rank with its resulting precedence; and inasmuch as the precedence of officers of the same or corresponding rank is determined, in the absence of statutory pro\-ision to the contrary, by date of commission, it would fol- low that commodores must take precedence ahead of all the others when the commissions of the commodores are of an earlier date than those of officers in the other grades mentioned. From a practical point of view it would be an im- possible situation to have commodores as a class preceding major generals of a later date of com- mission. If the law could be construed so that nothing contained therein should operate to give any officer of a lower grade precedence of an officer of a liigher grade, one impossible situation would merely be substituted for another, as in that event we would have a l)rigadier general preceding rear admii-als of a later date of commission, while the rear ad- mirals in turn would precede major generals of a later date of commission, while the major generals in turn would precede the brigadier general because holding a higher grade. (File 39S0-1402, Oct. 31, 1917.) The situation created by the act of October 6, 1917, can be corrected only l)y legislation. Under the present law it is indisputable that major generals and brigadier generals both take rank and jirecedence with rear admirals; and that commodores take rank and precedence with brigadier generals. Major generals and brigadier generals must be treated as but one grade for purposes of precedence with rear admirals; while at the same time as l^etween themsehes they must be treated as oflicers of separate and distinct grades, different in de- gree. This creates two conflicting rules for determining the precedence of officers who may be associated together at the same time and place. Two grades in the Army or Marine Corps can not be made ec[ual to one grade in the Navy without at the same time making them equal to each other. The difficulty is more pronounced in the Navy than in the Army, because of the fact that the Marine Corps is normally a part of the Navy, its officers serving halutuaily on courts and boards with other officers in the naval ser\ice. In other words there are under the jurisdiction of the Navy Department officers ha\ing all of the ranks involved, namely, rear admiral, major general, brigadier general, and commodore; while under the War f)epartment the only gi-ades involved are major general and brigadier general; so that the War Department can never have juris- diction of the entire ([uestion. In the case of a commodore being associated on duty with a rear admiral of the Navy and a brigadier gen- eral ot the Marine Corps, it would follow that by date of commission the commodore would most likely rank ahead of the brigadier general who, in turn, might be entitled to precedence ahead of the rear admiral, whom the commodore could not precede. (File 3980-1402:4, Feb. 19, 191S.) The act of October 6, 1917,. can not be given effect fully by construction not extending to executive legislation. Administrative officers can not make law but must take the law as it stands. If the law as made by Congress is de- fective either in what it contains or what it omits, the remedy can be furnished only by Congress. In the present case the legislative intent is too plain for discu.ssion that lirigadier generals should be elevated in rank to the level of rear admirals of the lower half, and not that the latter should be reduced. This can not be an accomplished fact so long as rear admirals continue by law to rank with major generals, and commodores continue by law to rank with brigadier generals. If there were any warrant for tlie executive by regulations to make com- modores rank after brigadier generals, instead of with brigadier generals as provided by statute, and make rear admirals of the lovyer half rank after major generals instead of with major generals as provided by statute, a solu- tion would thereby be reached; but where the rank of these oflicers has been definitely fixed by explicit legislation, the executive can no more change the rank to wiiich they are thus entitled than it could change their pay as fixed by statute. (File 3980-1402, Oct. 31, 1917.) The War Department is in complete agree- ment with the Secretary of the^ Navy that the law upon this subject (Act of Oct. G, 1917) should be repealed, and has accordingly rec- ommended such repeal to the Senate and House 666 The Navy. Pt.2. REVISED STATUTES. Sec. 1466. mjlitarv committees. (File 3980-1402 : 7, Apr. 10, 1918.) A bill for this purpose (H. R. 12512) was introduced in the House of Representa- tives on June 19, 1918, and referred to the Com- mittee on Military Affairs. (File 3980-1402 : 8, Auff. 1, 1918.) Midshipmen not included by this sec- tion. — Section 1466 provides for relative rank between officers of the Navy and officers of the Army, but no such relative rank is given to ca- dets (now midshipmen). Although officers of the Navy, naval cadets (midshipmen) do not correspond in rank with any officer of the Army, and therefore are not entitled to the allowance of mileage for travel on shore duty aliroad. (7 Comp. Dec, 2.) Professors at Naval Academy do not rank with professors at Military Acad- emy. — A line officer of the Navy of the rank of lieutenant commander corresponds in rank to a major in the Army; his detail to duty as head of the department of modern languages of the United States Naval Academy does not en- title him to the rank of commander, corres- ponding to lieutenant colonel in the Army, be- cause under the law certain professors at the Military Academy are entitled to the rank and pay of lieutenant colonel. The position of pro- fessor at the Military Academy is an office sepa- rate and distinct fi'om any other office in the Army, the incumbent of which is appointed by the President and not detailed from the officers of the Army. There is no law entitling a naval officer, by virtue of his assignment, to the rank or pay of a professor either at the Naval Acad- emy or Military Academy; nor any law pro\id- ing that an Army officer may be detailed to per- form the duties of a professor at the Military Academy and thereby become entitled to the rank and pay of a professor at that institution. (11 Comp. Dec, 591.) Staff oflScers included by this section. — ■ Section 1466 fixes the relative rank of officers of the Army and officers of the Navy. This sec- tion is general, with no exception or limitation, and therefore it applies equally to all officers of the Navy of the grades there mentioned, whether of the line or staff. That section con- tains the clause, "'lineal rank only ))eing con- sidered," but that simply means that it is not necessary to specify and "fix relative staff rank, since staff officers in both services possess assim- ilated lineal rank. (26 Op. Atty. Gen., 16.) As staff officers are, equally \\-ith those of the line, '"officersof the Navy," as stated in section 1466, the provisions of that section apply as well to them as to officers of the line, and thus defines the rank in both branches of the naval service. And since the Navy personnel act has elimi- nated the word "relative" in this connection, this is their actual rank. This merely defines the rank of these officers, by making the rank of a captain the same as that of a colonel, and so on. _ (26 Op. Atty, Gen., 496, 499.) Section 1466, Revised Statutes, assimilates in rank lieutenants in the Navy with captains in the Army. Under the Navy personnel act of March 3, 1899 (30 Stat., 1007), and section 1466, Re\"ised Statutes, passed assistant surgeons of the Navy, as well as assistant surgeons, rank with captains in the Army. (U. S. v. Faren- holt, 206U. S., 226.) Oflficers of the Marine Corps and line oflScers of the Navy. — By section 1603, Revised Statutes, officers of the Marine Corps are in relation to rank on the same footing as officers of similar grades in the Army. Accord- ingly, they take precedence with line officers in the Navy according to grade; and if of similar grade, then according to date of commission. (■2r> Op. Atty. Gen., 517.) Officers of the Marine Corps and staff officers of the Navy. — Staff officers of the Navy take precedence with officers of the Army of corresponding rank according to date of com- mission. Accordingly, officers of the Marine Corps, who by section 1603, Revised Statutes, are in relation to rank on the same footing as officers of similar grades in the Army, take pre- cedence with officers of the staff corps of the Navy of corresponding rank according to dates of commission; and the Navy Department would not have the authority, with the approval of the President, to amend the Navy Regula- tions so as to do away with the practice as to the relative rank of officers of the Marine Corps and line officers of the Navy established in accord- ance ^vith the Attorney General's opinion of October 7, 1905 i25 Op. Atty. Gen., 517). y26 Op. Atty. Gen., 16.) Relative rank when of same or corre- sponding grade. — Section 1466 fixes the rela- tive rank by grades only of line officers of the Navy and of the Army. But this merely tells what grades in each service, designated by their titles, shall be of corresponding or equal right and dignity, and does not fix the relative rank of these officers when of the same or correspond- ing grades. This is left undetermined , so far as express statute or regulation is concerned . But the unwritten law of the Army and Navy — a rule of action governing in both branches of the service — derived from long established and uni- form practice, has settled tliis. From the earli- est days of the Army and Navy it has been the rule and practice that officers in the same grade in the Army and Navy have relative rank and precedence between themselves according to the dates, respectively, of their commissions; the senior in commission ranking the junior. The same rule applies in such cases as that which governs officers of the Army and officers of the Nav>' as between themselves in each case, namely, that seniority in commission or appoint- ment gives precedence in the same grade. This has become a well-understood rule of action and practice, which, in fact, governs and con- trols officers of the Army and Navy with the same force and precision as if embodied in statute or regulation. (25 Op. Atty. Gen., 517; see also. 26 Op. Attv. Gen., 16, and 29 Op. Atty. Gen., 264.) In so far as the precedence of officers of the same rank is not regulated by statute, the Secre- tary of the Navy may determine same with the force and effect of law, by virtue of his general authority under the President to make rules and regulations for the government of the Navy. Usually this, of course, is better done by general rules than by decisions in particular cases, but it may be done either way. It would seem that, according to the preference given throughout the statutes and by the rules and practice of the War and Navy Departments to seniority of 54641°— 22 43 6G7 Sec. 1467. PL 2. REVISED STATUTES. The Navy. Bendce. the longer service of an officer would, otlier tliinfP' lieins: ec]ual. give him precedence in rank with reference to another olHcer pro- moted to corresponding rank from the same date. (2:U)p. Atty. Oon., 156.) Relative rank when of same or corre- sponding grade and same date of commis- sion. — "In fixing the relative rank of ollicers of the Army, officers of tlie Naw, and officers of the >rarine Corps, of the same grade and date of appnintment and commission, the time which each may have actually served as a commis- sioned officer of the United States, whether con- tinuously or at different periods, shall be taken into account." (Art. R 1010 (2), Navy Regs., 1913; see also sec. 1219, R. S., relating to the Army.) This rule for determining precedence between officers of the same grade and date is statutoiy in the Army, and the rule so prescribed by statute for the Army is extended to the Navy by the foregoing regulation. Such a regulation for the Navy is almost a necessity in view of the law governing the Army, as should a different rule be prescribed for the Navy than that which governs by law in the Army, such rules would necessarily conflict where officers of the Army and Navy serve or associate together, and it would be impossible to fix theii" relative pre- cedence except by the adoption of the same rule to govern all. Nevertheless no statute limits the Secretaiy of the Navy in fixing the precedence of such officers of the Navy as be- tween themselves, where they are of the same gi'ade and date of rank, and therefore the regula- tion above quoted might by authority of the Secretary be departed from and some different rule of precedence adopted. (File 11130-53:1, June 25, 1910.) Command of joint forces of the Army and Navy. — There is no law which purports to provide who shall command joint forces of the Army and Navy doing duty together, this matter having been left by Congress, where it properly belongs, to the President, who, as com- mander in chief of the Army and Navy, is the only authority vested by the Constitution with the ])ower to determine what officers shall take command of such forces, either l)y virtue of rank or by special designation. Article lO'O of the Navy Regulations, 1913, issued with the written approval of the President, provides: "An officer of the Navy can not assume com- mand of Army forces on shore, nor can an officer of the Army assume command over any ship of the Navy, or oA-er its officers or men afloat, ex- cept in either case by special authority for a particular ser\dce; but when officers of the Navy are on duty on shore with the Army they shall be entitled to the i)recedence of the rank in the Army to which their own coiTesponds, exce])t command as aforesaid, and this precedence will regulate their right to quarters." (File 3980- 1402:3, Mar. 4, 1918.) For other cases, see note to section 1342, Revised Statutes, article 120. Corresponding rank did not give corre- sponding pay. — ^VVTiile the act of July 16, 1862, sec. 1466, R. S., had fixed the relative rank of Army and naval officers, no provision for similarity of pay was made until the passage of the Navy personnel act of March 3, 1899 (30 Stat., 1004), which act, while providing against a reduction of then existing pay of commis- sioned officers of the Navy, undertook to equal- ize the pay of naval officers (theretofore gen- erally below that paid to officers of correspond- ing rank in the Army) with that of officers in the Armv of equal rank. (U. S. v. Crosley, 196 U. S., 327, citing U. S. v. Thomas, 195 U. S., 418.) Sec. 1467. [Rank according to date.] Line officers shall take rank in each grade according to the dates of their commissions. — (16 July, 1862, c. 183, s. 1, V. 12, p. 583. 21 April, 1864, c. 63, s. 7, v. 13, p. 54. 24 Jan., 1865, c. 19, s. 1, V. 13, p. 424.) Graduates of Naval Academy, precedence of. See section 1483, Revised Statutes. Precedence of Marine officers. See section 1603 and note to section 1466, Revised Statutes. Precedence of officers selected to command squadrons. See sections 1434 and 1464, Re\'ised Statutes. Precedence of commanding officers of vessels and stations. See section 1468, Revised Statutes. Precedence of staff officers of Navy. See sections 1466, 1485, 1486, and 1489, Re- vnsed Statutes, and notes thereto. Precedence of officers promoted by selection to the ranks of commander, captain, and rear admiral in the line or staff of the Navy. See act of August 29, 1916 (39 Stat., 579), as amended by act of July 1 , 1918 (40 Stat., 718). Rank of officers advanced for distinguished conduct in battle. See sections 1506-1510, Revised Statutes. Special pro\isions governing the precedence of temporary, reserve, and Coast Guard officers transferred to the line or stafi of the regular Navy, are contained in act of Jiine 4, 1920, sections 3, 4, and 5 (41 Stat., 835, 836). Date of commission defined. — Seniority among line officers of the Navy is determined by date of commission — that is, the date from which the commission recites that the appoint- ment to a given grade begins. (18 Op. Atty. Gen., 393; see also Toulon v. U. S., 52 Ct. Cls., 333; 24 Comp. Dec, 177; 22 Comp. Dec, 623; 17 Comp. Dec, 605; 22 Comp. Dec, 565, 566; compare Young v. U. S., 19 Ct. Cls., 145.) Officer suspended from rank by sentence of court-martial. — ^WTiere an oflicer is sen- tenced by court-martial "to be suspended for two years from rank and duty, on furlough pay, and to retain his present number on the list of lieutenant commanders during that time, " officers in the same grade, although of a later date of commission, may pass above him on the 668 The Navy. Pt.2. RE VISED STAT UTES. Sec. 1469. list by reason of the sentence which held said officer to the number which he held at the time of the sentence. The sentence rendered by authority of law g^ves the law in this case, and section 1467, Revised Statutes, must, in its ap- plication, accord with the sentence. An order thereafter issued by the Secretary of the Navy, remitting "the unexecuted portion of the sen- tence, "does not operate to restore the officer to the position in the list to which his date of com- mission would entitle him. The fomi of the remitting order was not a nullification of the original sentence, neither was it an absolute pardon for the offense committed . The sentence IS neither declared void nor vacated; the "un- executed portion" is "remitted"; that portion of the sentence which previous to the remitting order operated to place two officers above the officer sentenced was executed at the date of the order of remission, and was therefore by the terms of the order not affected by it. While an absolute pardon might reinstate the officer sentenced (citing 12 Op. Atty. Gen., 547, and 17 Op. Atty. Gen., 31 and 656), an order by the Secretary remitting the unexecuted portion of the sentence can not produce that result. (20 Op. Atty. Gen., 243; compare notes to Constitu- tion, Art. II, sec. 2, clause 1, "When pardon may be granted. ") Loss of date for failure to qualify for promotion. — See note to section 1505, Revised Statutes, as amended. Precedence of officers promoted by selection. — \\Tien officers are promoted by selection they should be considered as haAdng gained length of service according to their promotion in determining their relative rank with other grades of the Navy, to a sufficient extent to place them above the officers over whom they were thus advanced. (17 Op. Atty. Gen., 56. See section 1486, R. S., as to officers who have gained or lost niunbers.) When the report of the Board of Rear Admirals for selection for promotion created by act of August 29, 1916 (39 Stat., 578), is ap- proved by the President, "the officers recom- mended therein shall be deemed eligible for selection, and if promoted shall take rank with one another in accordance with their seniority in the grade from which promoted. " (Act Aug. 29, 1916, 39 Stat., 579.) Where officer has been issued more than one commission in the same rank. — See file 4649-02, July 17, 1902, noted under section 421, Revised Statutes, "Precedence of chiefs of bureaus. " An officer who receives a permanent com- mission in the grade of commander while already holding a temporary commis.sion in the same grade of an earlier date, continues to take precedence from the date of his tem- porary commission so long as that commission remains in force and is not expressly revoked or terminated by operation of law. (C. M. 0. 237, 1919, p. 28, citing file 11130-47:1, July 18, 1919; see also C. M. O. 72, 1917, p. 20, citing file 11130-47, Nov. 28, 1917). An officer given a temporary commission as assistant surgeon with the rank of lieutenant (junior grade), and afterwards given a per- manent commission in the same grade and rank from a later date, takes precedence from the date stated in his permanent commission and notr from the earlier date stated in his tem- porary commission. (C. M. O. 30, 1918, p. 31, citing file 111.30-37:4, Mar. 12, 1918.) Antedating rank on promotion. — See note to section 1458, Revised Statutes. Precedence of officers commissioned on same date. — See note to section 1466, Revised Statutes. When naval officers are commissioned on the same date, the numbering of the commissions to determine the relative rank of the officers is, in the absence of statutes, a matter of practice in the Navy Department, and not governed by law. (1 Op. Atty. Gen., 325.) A fictitious date can not properly be inserted in an officer's commission, where this would be attended with prejudice to other officers in the same grade, unless there is clear authority of law for so doing. (14 Op. Atty. Gen., 192.) For other cases, sse notes to Constitution, Article II, section 3, "Duty to commission officers. " Sec. 1468. [Commanding officers of vessels and stations.] Commanding officers of vessels of war and of naval stations shall take precedence over all officers placed under their command. — (.3 Mar., 1871, c. 117, s. 12, v. 16, p. 537.) Command of hospital ships. See note to section 1488, Revised Statutes. Command of vessels and navy yards. See sections 1529 and 1542, Revised Statutes. Marine officers not to exercise command over any navy yard or vessel of the United States. See section 1617, Revised Stat- utes. Precedence of officers commanding squadrons. See sections 1434 and 1464, Revised Statutes. Staff officers, exercise of military command by. See section 1488, Revised Statutes. Sec. 1469. [Aid or executive officer.] The Secretary of the Navy may, in his discretion, detail a line officer to act as the aid or executive of the com- manding officer of a vessel of war or naval station, which officer shall, when not impracticable, be next in rank to said commanding officer. Such aid or execu- tive shall, while executing the orders of the commanding officer on board the vessel or at the station, take precedence over all officers attached to the vessel 669 Sec. 1471. Pt.2. REVISED STATUTES. The Navy. or station. All ordei-s of such aid or executive shall be regarded as proceeding from the commanding officer, and the aid or executive shall have no indej^end- ent authority in consequence of such detail. — (3 Mar., 1871, c, 117, s, 12, v. 16, p. 537.) officer or any other officer who has other duties to perform separate and distinct from the duties of an aid. (Knox v. U. S., 52 Ct. CLs., 22.) A captain in the Navy ordered to duty as captain of the yard, where the commandant of the navy yard was a rear admiral, is not entitled to additional pay as aid to a rear admi- ral. (Helm V. U. S., 52Ct. Cls.. 32.) A lieutenant in the Navy ordered to duty as "aid to the commandant, captain of the yard, and also as engineer officer of the yard, " is entitled to the additional pay provided Ijy the act of May 13, 1908 (35 Stat., 128), as aid to a rear admiral, the navy yard being under the command of an officer with the rank of rear admiral. (Frucht v. U. S., 49 Ct. Cls., 570.) The decision of the Court of Claims in the Frucht case (noted above) turned upon the character of duties actually shown to have been performed by the claimant in that case, which were personal duties in addition to and aside from his duties as captain of the yard. In that case it was specifically stated in the find- ings of fact: "While stationed as aid to the commandant of the navy yard at Pensacola, Fla., the claimant performed the usual duties required of aids to the commandant * * * and in addition performed other duties of a more personal character and such as are usually required of aids to rear admirals in the Navy and generals in the Army." (File 262-54- 1643:1, Jan. 19, 1915.) Where an officer was detailed by the Secre- tary of the Navy to duty as "aid to Rear Ad- miral William F. FuUam, " Superintendent of the Naval Academy, he was not detailed for dutj^ as aid or executive under section 1469, Revised Statutes, and regulations based thereon; but was an aid to a rear admiral and his duties were in no way the same as those provided for under the laws and regulations relating to aids or executives, .and captains of the yard. There is no law or regulation which prevents a rear admiral on duty ashore from having an aid, and if the Secretary of the Navy specifically designates an officer to serve in such capacity he is entitled to the additional pay provided by the act of May 13, 1908. (23 Comp. Dec. .329; see also 24 Comp. Dec, 558.) For other cases, see note to section 1556, Revised Statutes, "Additional pay for special duty." Staff officer can not be assigned to duty as "aid or executive." — See note to section "Aid or executive" is not entitled to additional pay as aid to a rear admiral. — Section 1469, Revised Statutes, has no refer- ence to the designation of aids on the personal staff of a Navy'officer like that provided for officers of the Army in sections 1096-1098, Revised Statutes. (6 Comp. Dec, 154.) The provision in the act of May 13, 1908 (35 Stat., 128), for additional pay for aids is: " Aids to rear admirals embraced in the nine lower numbers of that grade shall receive one hundred and fifty dollars additional per annum, and aids to all other rear admirals two hundred dollars per annum each." The statutory aid or executive to a commandant of a naval station, or "captain of the yard" as he is styled by Navj'- Regulations, is not an aid of the kind contemplated by the act of May 13. 1908, and therefore is not entitled to the addi- tional pay which that act provides for "aids to rear admirals, " even though the particular commandant with whom he serves may inci- dentally be a rear admiial. An officer detailed as aid or executive officer to the commandant of a naval station under the conditions of section 1469 corresponds by the terms of that statute to an executive officer of a war vessel. He acts as an aid or executive officer to the commandant as commandant, whomsoever the commandant may be and whatever grade he may hold, and independently of his per- sonality. The mutual official relationship between them is simply that of a superior offi- cer and an officer of an inferior rank attached for duty purposes to a common station, as distin- guished from the individual, personal, or social relationship of an aid and a rear admiral, which is the basic relationship between an aid and a rear admiral of the kind of aid contem- plated by the act of May 13, 1908, and for whose service in such relationship that act has provided additional pay. The duties per- formed by the former for the commandant are the routine executive duties of a naval station, while the duties performed by the latter for a rear admiral are personal or social in their character. (23 Comp. Dec, 327, following 21 Comp. Dec, 561, which over- ruled 21 Comp. Dec, 431.) An aid to an admiral in the Navy, whose pay is provided for in the act of May 13, 1908, IS an officer legally ordered to duty with an admiral, \dce admiral, or rear admiral to per- form for him strictly personal, confidential, and routine duties. These duties can not be combined with the duties of a fleet ordnance 1404, Revised Statutes. Sec. 1470. [Staff officers, when to communicate directly with commanding officer.] Staff officers, senior to the officer so detailed, shall have the right to communicate directly with the commanding officer. — (3 Mar., 1871, c. 117, s, 12, V. 16, p. 537.) Sec. 1471. [Chiefs of Bureaus.] The cliiefs of the Bureau of Medicine and Surgery, Provisions and Clothing, Steam Engineering, and Construction and 670 The Navy. Pt. 2. REVISED STATUTES. Sec. 1471. Kepair shall have the relative rank of commodore while holding said position, and shall have, respectively, the title of Surgeon-General, Paymaster-General, Engineer-in-Chief, and Chief Constructor. — (3 Mar., 1871, c. 117, s. 12, v. 16, p. 537.) Amendment to tMs section was made by act of IVIarch 3, 1899, section 7 (30 Stat., 1005), wMch provided that "when the office of chief of bureau is filled by an officer below the rank of rear admiral, said officer shall, while holding said office, have the rank of rear admiral." By act of July 1, 1918 (40 Stat., 717), it was provided that "here- after chiefs of bureaus of the Navy Depart- ment, including the Judge Advocate Gen- eral of the Navy, shall, while so serving, have coiTesponding rank and shall receive the same pay and allowances as are now or may hereafter be prescrilaed by or in pur- suance of law for chiefs of biu'eaus of the War Department and the Judge Advocate General of the Army." By act of Oc- tober 6, 1917 (40 Stat., 411), it was pro- vided with reference to the Army that "hereafter, the chief of any existing staff corps, department, or bureau, except as is otherwise provided for the Chief of Staff, shall have the rank, pay, and allowances of major general." As to rank, title, and precedence of chiefs of bureaus, see note to section 421, Revised Statutes. Biu"eau of Provisions and Clothing was desig- nated as Bureau of Supplies and Accounts by act of July 19, 1892 (27 Stat., 243, 245). Bureau of Steam Engineering was designated as Bureau of Engineering by act of June 4, 1920 (41 Stat, 828). Historical note.— On December 24, 1862, the Attorney General rendered an opinion to the Secretary of the Navy (10 Op. Atty. Gen., 413), holding that the latter had authority under the law to issue regulations fixing the "relative rank of the line and ci\il or staff officers of the Navy." Following this opinion it was provided by regulation that chiefs of bureaus of the staff corps were "to rank with commodores, and to take precedence of each other, according to their dates of commission as surgeons, paymasters, naval constructors, and engineers, and not according to the date of appointment as * * * chief of bm-eau." (Navy Regs., 1865, Art. II, par. 25; Navy Dept. order Mar. 3, 1863.) On March 31, 1869, the Attorney General (13 Op. Atty. Gen., 10) dissented from the previous opinion of his department, above cited, and held that certain regulations issued by the Secretary of the Nay>', with the approbation of the President, on March 13, 1863, "establishing and increasing the relative rank of the staff officers of the Nav^^" were invalid. By General Order No. 120 of April 1, 1869, the Secretary of the Navy published this latter opinion of the Attorney General, and stated that, in accordance there- with, "the order of March 3, 1863, and the Navy Regulations, Article II, paragraphs 6 to 28 (both inclusive), are hereby revoked and annulled." Thereafter, by act of March 3, 1871 (16 Stat., 537, sec. 12), Congress provided that the chiefs of the Bureaus of Medicine and Surgery, Provisions and Clothing (now Sup- plies and Accounts), Steam Engineering (now Engineering), and Construction and Repair, shall have the relative rank of commodore while holding said position, "or if heretofore or here- after retired therefrom by reason of age of length of ser\T.ce. ' ' The same act provided that when the office of cMef of bureau is filled by a line officer below the rank of commodore, said officer shall have the relative rank of commodore dur- ing the time he holds said office. Titles of chiefs of bureaus. — The head of a department for his own purposes as such has authority to designate offices therein and to cause his subordinates to designate them in official communications by names other than those theretofore borne by such offices. There is no statute or rule of law which forbids the emplojTQent of certain names in such cases, where the head of the department considers that new relations acquii'ed by such branches of business under a reorganization of his de- partment requires. Congress has not seen fit to so hamper a coordinate branch of the Govern- ment. Its own use of names is not such a pro- hibition. There is no legal objection to the employment of two names or many names for the same object nor will it be "inconsistent with law " for the head of the department under section 161, Revised Statutes, to make use of other names than those used by Congress. Names are ordinaiily free for the person speak- ing or wiiting to choose. (24 Op. Atty. Gen., 697.) Persons in the pubhc service may be offi- cially designated by titles other than those used in the law to identify their offices or posi- tions imder the Government, it being necessary to adhere to the statutory designation only in making their appointments to office. The mere assignment of a different title for official purposes to one occupjing an authorized posi- tion under the Government does not by any means constitute an attempt by the executive to create a new grade or to change the office or position held by one whose designation has thus been changed for administrative reasons. (C. M. O. 92, 1918, p. 27; file 18141-24, July 9, 1918.) "The chiefs of the Bureaus of Medicine and Siu-gery, Supplies and Accounts, Steam Engi- neering (now Engineering), Construction and Repair, and Yards and Docks, while holding these offices, shall have, respectively, the title of Surgeon General of the Navj% Paymaster General of the Navy, Engineer in Chief of the Navy, Chief Constructor of the Navy, and Chief of CU\dl Engineers of the Navy. Each such chief of bureau, however, shall be addressed and designated by the title of his rank; in Avritten communications the title of his office to be stated next after his name." (Art. R. 1006 (2), Navy Regs., 1913, C. N. R. 12, Sept. 12. 1918.) 671 Sec. 1473. PL 2. REVISED STATUTES. The Navy. Staff bureaus. — The bureaus mentioned in section 1171 are the staff bureaus of the Xa\-y, under the existing: ori^anization, except that the Engineer Corps (Steam Engineering) has now been transferred to the line by the person- nel act of March 3, 1899 (30 Stat., 1005). (25 Op.Atty. Gen., 122.) For other cases concerning chiefs of bureaus, their titles, etc. see note to section 421, ReAosed Statutes. Sec. 1472. [Chief of bureau, when below rank of commodore. Super- seded.] This section provided as follows: "Sec. 1472. AMien the office of chief of Bureau is filled by a line oQicer below the rank of commodore, said officer shall have the rela- tive rank of commodore during the time he holds said office."— (3 Mar., 1871, c. 117, s. 12, V. 16, p. 537.) It was superseded by the following pro- vision in the act of March 3, 1899, section 7 (30 Stat. , 1005) : ' ' When the office of chief of bureau is filled by an officer below the rank of rear admiral, said officer shall, while holding said office, have the rank of rear admiral." The latter pro\dsion was in turn superseded by act of July 1, 1918 (40 Stat., 717), which pro\-ided that "hereafter chiefs of bureaus of the NaA"v Department, including the Judge Advocate General of the Navy, shall, while so serving, have corresponding rank and shall receive the same pay and allowances as are now or may hereafter be prescribed by or in pursuance of law for chiefs of bureaus of the War Depart- ment and the Judge Advocate General of the Army." By act of October 6, 1917 (40 Stat., 411), it was provided with reference to the Army that "hereafter, the chief of any existing staff corps, department, or biu-eau, except as is otherwise provided for the Chief of Staff, shall have the rank, pay, and allowances of major general." See note to section 421, Revised Statutes, for cases concerning the rank status, etc., of chiefs of bureaus. Sec. 1473. [Retired from position of chief of bureau.] Officers who have been or who shall be retired from the position of cliiefs of the Bureau of Medi- cine and Surgery, of Provisions and Clothing, of Steam Engineering, or of Construction and Repair, by reason of age or length of service, shall have the relative rank of commodore. — (3 Mar., 1871, c. 117, s. 12, v. 16, p. 537.) Amendment to this section was made by act of July 19, 1892 (27 Stat., 243, 245), by which the Bureau of Provisions and Clothing was designated as Bureau of Supplies and Ac- coimts; also by act of March 3, 1899, sec- tion 7 (30 Stat., 1006), which changed the words "the relative rank of" to "the rank of," and provided that chiefs of bureaus, while so serving, shall have the rank of rear admiral; and by act of June 4, 1920 (41 Stat., 828), which changed the designation of tlie Bureau of Steam Engineering to Bureau of Engineering. By act of May 13, 1908 (35 Stat., 128), it was provided that "any officer of the Navy who is now serving or shall hereafter serve as chief of a bureau in the Navy Department, and shall subsequently be retired, shall be retired with the rank, pay and allowances authorized by law for the retirement of such bureau chief." Rank of staff officers retired for causes incident to the service. See section 1482, Revised Statutes. See generally note to section 421, Revised Stat- utes, as to retirement of chiefs of bureaus. Rank on retirement now rear admiral. — The Navy personnel act of March 3, 1899, sec- tion 7 (30 Stat., 1005)_, has now substitiited the rank oi reai admiral in the cases of retirement of staff officers, in which suc-h retirement was authorized by the Revised Statutes with the relative ranlc of commodore. (25 Op. Atty. Gen., 294, 296, citing 22 Op. Atty. Gen., 433; compare 5 Comp. Dec, 821.[) Retirements under section 1473, Revised Statutes, are made in practice with the rank of rear admiral instead of commodore, as was provided therein. (File 3980-1402, Oct. 31, 1917.) For other cases, see note to section 1466, Revised Statutes. Retirement of a chief of birreau creates a vacancy, but is not a vacancy created by death, resignation, absence, or sickness which may be filled in accordance with sections 178- 181, Revised Statutes. Congress having made no provision for the temporary discharge of his duties in this case, the bureau remains without a head until the place is filled pursuant to the provisions of section 421, Revised Statutes. The order of the President designating the Chief Constructor as Acting Chief of the Bureau of Steam Engineering [now Engineering], upon the retirement of the chief of that bureau, was unauthorized. (27 Op. Atty. Gen., 337; com- pare cases noted under sec. 179, R. S.) "Retired" defined. — There is a difference between retiring from the office and retirement in the sense of section 1473. All staff biu-eau chiefs who are entitled to retirement under the statutes when serving as PajTnaster General, etc., have the right to bear the appropriate title followed by the Word " retired " ; but of course this is not so when the service as bxu-eau chief is followed, not by retirement but by retiun to other active duties. (25 Op. Atty. Gen., 294.) Retirement affects tenure of office. — That the retirement of an officer from active service affects his tenure of office as bureau chief, as well as his office in the line, is recog- nized by Congress in thj provisions of section 1473, Revised Statutes. (27 Op. Atty. Gen., 337.) 672 The Navy. Pt. 2. REVISED STATUTES. Sec. 1474. Retirement in cases not covered by this section. — The contention that, since section 1473, Revised Statutes, specifically pro\T.des that chiefs of foixr of the bui-eaus shall be retired with the rank of comnrjodore, therefore Congi'ess can not have intended to confer the same priv- ilege on the chiefs of the other four bureauSj or on the Judge Advocate General, besides im- puting to Congi'ess an intention to make a dis- ciimination for which no possible reason can be suggested, loses its force when the act of Marcli 3, 1871 (which is the source of R. S. 1471, 1472, 1473, and 1482), is read as a whole in the light of the situation existing when it was passed, ^"lien this is done with a desire to ascertain the actual intention of Congress, the proper inference ■n'ill be seen to be that Con- gi-ess intended, not to discriminate between one chief of bureau and another, but to confer upon the chiefs of the so-called staff bureaus a gi'ade or rank on retirement which it thought already appertained to the chiefs of the so- called line biu-eaus. (31 Op. Atty. Gen., 505.) It seems clear when the statutes relating to this subject are considered as a whole and in their order, that Congress intended: (a) Asa general thing to equalize the grade or rank of an officer of the Navy on retirement with that enjoyed by him at the moment of his retire- ment; {h) to use the word "grade" in section 1457, Re\Tsed Statutes, as a general term indi- cating any marked distinction fixed by law among officers which would be expressed in their commission, title, or pay, not excluding chiefs of biu-eaus having a certain rank; (c) not to make any distinction between one occu- pant of a biu'eau office and another because of the line or staff source from which he came. (31 Op. Atty. Gen., 505, holding that "a line officer of the Naw, retired while ser\T.ng as Chief of Bureau or Judge Advocate General, should be placed on the retired list with the rank attached by law to the said position of Chief of Bureau or Judge Advocate General.") For other cases relating to retirement of chiefs of Inireaus, etc., see note to section 421, Re\'ised Statutes. Sec. 1474. [Medical Corps.] Officers of tlie Medical Corps on the active list of the Navy shaU have relative rank as foUows: Medical directors, the relative rank of captain. Medical uispectors, the relative rank of commander. Surgeons, the relative rank of lieutenant-commander or lieutenant. Passed assistant surgeons, the relative rank of lieutenant or master. Assistant surgeons, the relative rank of master or ensign. — (3 Mar., 1871, c. 117, s. 5, V. 16, p. 535.) Amendment to this section was made by act of June 7, 1900 (31 Stat., 697), which provided that "assistant surgeons shall rank with as- sistant sm'geons in the Army"'; by section 1168, Revised Statutes, the lowest rank of an assistant surgeon in the Army during the first three years of service was that of a lieu- tenant of caAalry; the effect of the act of 1900 was therefore to give to assistant sm- geons in the Na^'y the rank of lieutenant (junior grade) instead of ensign. (Hum- mer V. U. S., 224 U. S., 138.) The act of March 3, 1903 (32 Stat., 1197), authorized the appointment of additional passed assist- ant and assistant surgeons "with the rank, respectively, of lieutenant and lieutenant (junior grade)." Further amendment to this section was made bv act of August 29, 1916(39 Stat., 577), which piw-ided that "all assistant surgeons shall from date of their original appointment take rank and prece- dence with lieutenants (junior grade)." The act last cited further created the rank of rear admiral for medical du-ectors,inaddi- tion to the rank of captain, the distribution to be "one-half medical directors with the rank of rear admiral to four medical directora ^\•ith the rank of captain, to eight medical inspectors ^rith the rank of commander, to eighty -seven and one-hali in the grades be- low medical inspector." (See note to sec. 1368, R. S.) The words, "the relative rank of," as used in this section, were changed to read, "the rank of," by act of March 3. 1899, section 7 (30 Stat., 1006). The title "master" was changed to "lieutenant (jun- iorgrade) " byactof March 3, 1883 (22 Stat., 472). By (39 Stat., 576), of the * * * act of August 29, 1916 it was proA"ided that "officers lower gi-ades of the Medical Corps, shall be advanced in rank up to and includ- ing the rank of lieutenant commander with the officers of the line vnXh whom or next after whom they take precedence under ex- isting law." By act of May 22, 1917, sec- tion 17 (40 Stat., 89), it was enacted that the above clause in the act of August 29, 1916, shall not operate "to distm-b the relative position of officers in the Medical Corps ^vith reference to precedence or promotion , but all such officers otherwise qualified shall be advanced in rank with or ahead of offi- cers in said corps who were their juniors on the date of said act. ' ' By act of July 1, 1918 (40 Stat., 718), it was pro- \'ided that the advancement of staff officers of the Na^vy to the ranks of commander, captain, and rear admiral, shall be by selec- tion in the manner therein provided. Examinations were discontinued for promotion of staff officers in grade by act of May 22, 1917, section 20 (40 Stat., 89), which act and section also reenacted a pro%dsion in the act of March 4, 1917 (39 Stat., 1182), requii-ing examinations of staff officers for advancement in rank. 673 Sec. 1474. Pt.2. REVISED STATUTES. The Navy. See pections 1368-1375, Revised Statutes, and notee thereto, concerning the organization of the Medical Corps, and appointments, ]iroruotions, etc., therein. Historical note.— It is ob\'iou8 that every military estivblit-hmcnt, whether Army or Naw, must have connected with it certain organiza- tions of business or scientific men whose serv- ices, although auxiliary to the combatant force of such establishment, are yet nece.'^sary to its efficiency. These constitute the staff corps as distinguished from the line. It is also neces- sary that the officers of such a corps, being gen- tlemen who render important and valuable serv- ices, should be brought into such relations ^vith the officers of the line that their ovm dignity shall be preserved, and the proper order of a military establishment maintained. While, therefore, rank is primarily established with reference to those who are entitled to command, with a \-iew to determining the order in which they are to command, it is necessary to giA^e to the grades created in other corps a mnk which shall either be the same vnth. the rank of the offi- cers of the Line, or which, by relation to the rank of the officers of the line, shall entitle those hold- ing it to such honor, attention, and respect as is accorded to officers of the line of the rank to which it relates or is assimilated. Such rank, whether it be absolute in terms, or whether it be termed assimilated or relative rank, may, of course, be always subject to such exceptions as the legislative power may deem proper. Or- ders were early passed bj'' various secretaries of the NaA-y proA'iding that certain officers of the staff should rank with certain officers of the line, the same orders pro\'idiug that this should not give them authority to exercise militaiy com- mand, and should give no additional right to quarters. Two general orders of this nature, of Secretary Bancroft and Secretary !Mason, relat- ing to surgeons and pursers, were confirmed by the act of August 5, 1854 (sec. 4, 10 Stat., 587). A similar order by Mr. Toucey in relation to engineers was also confirmed by a subsequent statute. These orders did not give to the staff officers to whom they referred the same rank as that held by officers of the line, but a rank equal to and assimilated with that of officers of the line. In January 1871 a bill was passed by the House of Representatives which gave to each staff officer definite or absolute rank, the phrase used in regard to such officers, e. g., being "13 pay inspectors who shall have the rank of com- mander." This bill was the subject of much discussion, and in the Senate it was amended and finally passed by both houses of Congress in a form which gave to the officers of the staff rela- tive rank, the phrase used in regard to such offi- cers being, e. g., "13 pay inspectoi-s who shall have the relative rank of commander." This statute is embodied in sections 1474-1480, Re- vised Statutes. It is impossible to conceive why this change was made if Congress, when it finally passed the bill, did not suppose that the "relative" rank of commander was something different from the rank or grade of commander. The terms seem almost to force the conclusion that the pay inspector was to have the rank of commander by reference or relation to the rank held by a commander in the line. While un- doubtedly Congress might pro\'ide that he should have the absolute rank of commander and might annex to it appropriate conditions con- sidering the duties expected to be performed by him, such as that he should not exercise mili- tary command, it is apparent that in inserting the word "relative " Congress has made the pro- vision which it deemed necessary for the respect which was undoubtedly to be accorded to nim. In the Army it is no doubt tnie that certain offi- cers whose duties are strictly those of staff ofii- cers, like the officers of the Pay Corps of the Army, have absolute rank (see sec. 1182, R. S.), but it will be observed that neither the word "relative " nor any word expressi\-e of the same idea is found in the section. These officers of the Army are identified with certain grades of the line by appropriate words conferring abso- lutely the rank of those grades, but by the use of the word "relative" Congress indicates its intention to make the grades of the Pay Corps of the Xa\'y equal to but not identical with the grades of the line with which they are con- nected by relation. (16 Op. Atty. Gen., 414.) On December 24, 1862, the Attorney General rendered an opinion to the Secretary of the Navy (10 Op. Atty. Gen., 413) holding that the latter had authority under the law to issue regu- lations fixing the "relatiA-e rank of the line and ciA-il or staff officers of the NaAy." Following this opinion it was pro\dded by regulation that "surgeons, pajTnasters, naval constructors, chief engineers, chaplains, professors of mathe- matics, passed assistant surgeons, secretaries, assistant surgeons, assistant na^•al constructors, assistant paymasters, first assistant engineers, second assistant engmeei's, third assistant engi- neers, clerks, carpenters, and sailmakers are to be regarded as staff officers, and all other officers of the sendee as line officers. The relatiA^e rank between the officers of these two classes is to be as follows: Assistant surgeons to rank with mastei-s," etc. (Na\y Regs., 1865, Art. II; par. 5 et seq.; Navy Dept. order Mar. 3, 1863.) On March 31, 1869, the Attorney General (13 Op. Atty. Gen., 10) dissented from the pre\aous opinion of his department, above cited, and held that certain regulations issued by the Sec- retary of the NaAy , with the approbation of the President, on March 13, 1863, " establishing and increasing the relative rank of the staff officers of the NaA^," were invalid. By General Order No. 120 of April 1, 1869, the Secretary of the Navy published this latter opinion of the Attorney General, and stated that, in accord- ance therewith, 'the order of March 3, 1863, and the Navy Regulations, Article II, ptara- gi-aphs 6 to 28 (both inclusive), are hereby re- voked and annulled." The same general order also published the rank of staff officers as then established by law. Thereafter by act of March 3, 1871 (16 Stat., 535, et seq.), embodied in sec- tions 1474-1480, Re"\dsed Statutes, Congress es- tablished the relative rank of various staff offi- cers. By the Na\y personnel act of March 3, 1899, section 7 (30 Stat., 1006), it was pro\'ided "that all sections of the Revised Statutes which, in deffiiing the rank of officers or positions in the Na^y, contain the words 'the relative rank of are hereby amended so as to read 'the rank of,' 674 The Navy. PL 2. REVISED STATUTES. Sec. 1474. but ofBcers whose rank is so defined shall not be entitled, in virtue of their rank to command in the line or in other staff corps." Comraand of hospital ships by medical officers. — See note to section 1488, Revised Statutes. Clerical error in stating rank of medical officer in commission. — An assistant surgeon was nominated to the Senate for appointment as a passed assistant surgeon without mention of the rank, whether lieutenant or lieutenant (jurdor grade), to be held under such appoint- ment; by clerical error he was commissioned as passed assistant surgeon with the rank of lieutenant instead of the rank of lieutenant (junior grade). ^Vhile it is true that section 1474, Revised Statutes, provides that passed assistant surgeons shall have the rank of lieu- tenant or lieutenant (junior grade), without specifying the number in each rank, yet the rank is not left to the discretion of the appoint- ing power but is determined by section 1485, Re\'ised Statutes. To have given this officer the rank of lieutenant at the time of his promo- tion would have advanced him about 20 num- bers in rank, which, without the advice and consent of the Senate, is specifically prohibited by section 1506, Revised Statutes, as amended by act of June 17, 1878 (20_Stat., 143). Accord- ingly, held that the officer in question is entitled only to the pay of lieutenant (junior grade). (11 Comp. Dec, 43; compare 26 Op. Atty. Gen., 496, noted under sec. 1485, R. S., holding that sees. 1485 and 1486, R. S., have notliing whatever to do in determining whether an offi- cer should be advanced in one rank or more than one.) Retirement of medical officer with higher rank than that provided for the active list. — Under section 1474, Revised Statutes, the highest grade in the Medical Corps was that of medical director with the relative rank of captain; and under section 1475, Revised Statutes, the highest officers of the Pay Corps were pay directors with the relative rank of captain. In the active list there was no higher relative rank to be attained in either of these corps than that of captain. Nevertheless, held that under section 11 of the Navy personnel act of March 3, 1899 (30 Stat., 1007), providing for the retirement of certain officers with the rank "of the next higher grade," a pay director and a medical director having the rank of captain were entitled to be re- tired with the rank of rear admiral, although this will result in a higher rank than that to which it would be possible for them to attain in the active service. Of course, one occupying the highest rank in the Nai'y could not by retire- ment or other means be promoted to a higher grade when none exists. But section 11 of the act cited refers to the rank or grade of officers of the Navy generally, without respect to the limitations of rank placed upon the different branches of staff service. (22 Op. Attv. Gen., 433.) y V y The officers of different staff coi-ps, such as the Medical Corps and the Pay Corps, have separate and distinct titles appropriate to the nature of their service and to their rank in the corps; and in addition thereto are given rela- tive rank by the same title that is applied to officers of the line. The line furnishes the standard of rank for officers of all classes. A captain of the line is merely a captain and has but one title to designate both his office and his rank. An officer of the staff has an official title to identify his position in his corps and also a relative rank in addition, the latter being arbitrarily fixed by Congress to designate his relative rank in the service in accordance with the line standard. The rank conferred upon a person holding the position of medical director is purely statutory and arbitrary, and there is no reason why a retired medical director should not hold a higher relative rank than that which is permitted on the active list. That Congress has in other instances contemplated a similar result is apparent from the provisions of section 1481, Revised Statutes, which provides that certain staff officers shall when retired have the relative rank of commodore. (22 Op. Atty. Gen., 433.) Rank of acting assistant surgeons. — By act of May 4, 1898 (30 Stat., 369, 380), the President was authorized to appoint for tempo- rary service 25 acting assistant surgeons ' ' who shall have the relative rank and compensation of assistant surgeons." The act of June 7, 1900 (31 Stat., 697), raised the rank of assistant sur- geons in the Navy by providing that "assistant sm'geona shall rank with assistant surgeons in the Army. ' ' Prior to that act the rank of assist- ant surgeons in the Navy, upon entrance into the Navy, was that of ensign. By Revised Statutes 1168 the lowest rank of an assistant surgeon in the Army, during the first tliree years of service, was that of a lieutenant of cavalry. The effect of the act of 1900 was, therefore, to give assistant surgeons in the Navy a higher rank — that is, to raise them from the rank of ensign to that of lieutenant (junior grade). By circular of the Surgeon General of the Navy, December 29, 1902, it was stated that acting assistant surgeons would have the same. rank and pay as assistant surgeons in the regular service. Claimant was commissioned as an acting assistant surgeon, the commission stating his rank to be that of lieutenant (junior grade). Held, that the act of 1898 pro\-ided for a standard by which to determine the rank and pay of the acting assistant surgeons, and that under said act the standard was the rank and pay of assist- ant surgeons in force at the time when the serv- ices of the acting assistant surgeons were ren- dered, and not the rank and pay in force when the act of 1898 was enacted, which had become a nonexisting or obsolete standard. The rela- tion which the act of 1898 established between the rank and pay of acting assistant surgeons and assistant surgeons in reason must rest upon the sub^antial identity of the services to be rendered by the incumbents of both office.^. (Plummer v. U. S., 224 U. S., 137.) A passed assistant svurgeon in the N"a,vy with the rank of lieutenant (junior grade) toi - responds in rank with an assistant surgeon in the Army with the rank of a first lieutenant, and a passed assistant surgeon in the Navy with the rank of lieutenant corresponds in rank with as assistant surgeon in the Army with the rank of captain. His pay is attached to his rank by section 7 of the Navy personnel act of March 3, 1899. Therefore a passed assistant surgeon in 675 Sec. 1475. Pi. '2. REVISED STATUTES. The Navy. the Navy with the rank of lieutenant is entitled to the pay of an oIliciT of corresponding^ rank in the Army, to-\vil, that of an assistant surgeon with the rank of captain. (9 Comp. Dec, 67G, modifying 5 Comp. Dec, 943.) Tliere is no grt)und for distinction between assistant surgeons and passed assistant surgeons that would give mounted pay to one and deny it to the other. (9 Oomp. Dec, 670.) Section 141)0, Revised Statutes, assimilates in rank lieutenants in the Navy with captains in the Army. Under the Navy personnel act of March 3. 1S99 (30 Stat., 1007), and section 14()(), Revised Statutes, passed assistant sur- geons of the Navy as well as assistant surgeons rank with captains in the Army. (U. S. v. Farenliolt, 206 U. S., 220.) As to status of passed assistant surgeons, see note to .section 1368, Revised Statutes. Advancement in rank and promotion of staff officers. — See note to section 1480, Revised Statutes. Sec. 1475. [Supply Corps.] Officers of the Pay Corps on the active list of the Navy shall have relative rank as follows: Pay directors, the relative rank of captain. Pay inspectors, the relative rank of commander. Paymasters, the relative rank of lieutenant-commander or lieutenant. Passed assistant paymasters, the relative rank of lieutenant or master. Assistant paymasters, the relative rank of master or ensign. — (3 Mar., 1871, c. 117, s. 6, V. 16, p. 536.) Retirem.ent with higher rank than that provided for the active list. — See note to section 1474, RcN-ised Statutes. Rank of paymasters and assistant pay- masters.— The act of June 7, 1900 (31 Stat., 697), provides that "assistant surgeons shall rank with assistant surgeons in the Army. " There is no statute which makes assistant paymasters having the rank of ensign and lieutenant (junior grade) rank with assistant paymasters in the Army. Nor is there any law whereby paymasters in the Navy shall rank with paymasters in the Army, yet there is a direct correspondence under these laws be- tween the paymaster with the rank of lieutenant in the Navy and the paymaster vnth the rank of "captain, mounted, " in the Army. Under section 1466, Revised Statutes, lieutenants in the Navy rank with captains in the Army, lieutenants (junior grade) with first lieutenants, and ensigns with second lieutenants. The lowest grade or rank in the pay corps of the Army is that of captain, who is given by law the rank of ' ' captain, mounted. " There is not, and never has been, any rank in the Pay Corps of the Army below that of captain. Accord- ingly, held, "that under the Navy personnel act of^March 3, 1899 section 13 (30 Stat., 1007), providing that officers of the ray Corps of the Navy shall receive the same pay provided by or in pursuance of law for the officers of cor- responding rank in the Army, a paymaster in the Navy mth the rank of lieutenant has cor- responding rank with a "captain, mounted," in the Pay Corps of the Army, and that, there being no corresponding grade in the Pay Corps of the Army to that of assistant paymaster in the Navy with the rank of ensign, or lieutenant (junior grade), the latter corresponds in rank to second lieutenant or first lieutenant in the Infantry of the Army, and is entitled only to Infantry pay. (Stevens v. U. S., 43 Ct. Cls., 484; 15 Comp. Dec, 124.) Advancement in rank and promotion of staff oflicers. — See note to section 1480, Revised Statutes. Amendment to this section was made by act of March 3, 1883 (22 Stat., 472), which changed the title of "master" to "lieutenant (junior grade)"; by act of March 3, 1899, section 7 (30 Stat., 1006), which changed the words, "the relative rank of," to read, "the rank of;" by act of July 11, 1919 (41 Stat., 147), which provided that "here- after the Pay Corps shall be called the Supply Corps"; by act of August 29, 1916 (39 Stat., 577), which created the rank of rear admiral tor pay directors, in addition to the rank of captain, the distribution to be "one-half pay directors with the rank of rear admiral to four pay directors with the rank of captain, to eight pay inspectors with the rank of commander, to eighty- seven and one-half in the grades below pay inspector." (See note to sec. 1376, R. S.) By act of August 29, 1916 (39 Stat., 576), it was pro\dded that "officers of the lower grades of the * * * Pay Corps * * * shall be advanced in rank up to and in- cluding the rank of lieutenant commander with the officers of the line with whom or next after whom they take precedence under existing law.' ' act of July 1, 1918 (40 Stat., 718), it was provided that the advancement of staff officers of the Navy to the ranks of commander, captain, and rear admiral shall 1)0 by selection in the manner therein provided. Examinations were discontinued for promotion of staff officers in grade by act of May 22, 1917, section 20 (40 Stat., 89), wfiich act and section also reenacted a provision in the act of March 4, 1917 (39 Stat., 1182), requiring examinations of staff officers for advancement in rank. See sections 1376-1389, Revised Statutes, and notes thereto, concerning the organization of the Supply Corps, and appointments, promotions, etc., therein. Historical note.-— See note to section 1474, Revised Statutes. By 676 The Navy. Ft. 2. REVISED STATUTES. Sec. 1477. The permanent rank of rear admiral on the active list of the Pay Corps (now Supply Corps) was first authorized by act of June 24, 1910 (36 Stat., 607) which pro- vided that chiefs of bureaus eligible for re- tirement after 30 years' service should be entitled to the permanent rank, title, and emoluments of a chief of bureau, while on the active list, the same as they would have re- ceived if retired for age or length of service; this provision was repealed by act of August 22, 1912 (37 Stat., 328), which contained a proviso that no officer who had received the benefits of the act of 1910 should be deprived thereof on account of such repeal; prior to its repeal two officers of the Pay Corps, Pajonaster General Eustace B. Rogers (file 22724-18) and Pay- master General Thomas J. Cowie, had been permanently commissioned with the rank of rear admiral. (See note to sec. 421, R. S., under "Rank of chiefs of bureaus.") Sec. 1476. [Engineer Corps. Superseded.] This section provided as follo-ws: ' ' Sec. 147G. Officers of the Engineer Corps on the active listshall have relative rank as follows: "Of the chief engineers, ten shall have the relative rank of ca])tain, fifteen that of com- mander, and forty-five that of lieutenant- commander or lieutenant. "First assistant engineers shall have the rela- tive rank of lieutenant or master, and second assistant engineers that of master or ensign. " — (3 Mar., 1871, c. 117, s. 7, v. 16, p. 536. 24 Feb.-, 1874, c. 35, V. 18, p. 17.) It was amended by act of February 24, 1874, section 1 (IS Stat., 17), which changed the titleof fhstassistant engineer to passed assistant engineer and changed the title of second assist- ant engineer to assistant engineer. It was superseded by act of August 5, 1882, section 1 (22 Stat., 286), which provided that the active list of the Engineer Corps should thereafter consist of 10 chief engineers \vith the relative rank of captain, 15 chief engineers with the relative rank of commander, 45 chief engineers with the relative rank of lieutenant commander or lieutenant, 60 passed assistant engineers and 40 assistant engineers with the relative rank for each as previously fixed by law. The act of March 3, 1883 (22 Stat., 472), changed the title of "master" to "lieutenant (junior grade). " The act of March 3, 1899 (30 Stat., 1004), abolished the Engineer Corps and transferred the members thereof to the line of the Navy. (See note to sec. 1390, R. S.) The appoint- ment and assignment of line officers for engi- neering duty only are authorized by act of August 29, 1916 (39 Stat., 580). Sec. 1477. [Constructors. Superseded.] This section provided as follows: "Sec. 1477. Of the naval constructors, two shall have the relative rank of captain, three of commander, and all others that of lieutenant- commander or lieutenant. Assistant naval constructors shall have the relative rank of lieutenant or master. " — (3 Mar., 1871, c. 117, s. 9, v. 16, p. 536.) It was amended by act of March 3, 1883 (22 Stat., 472). which changed the title "mas- ter" to "lieutenant (junior grade). " It was superseded by act of March 3, 1899, section 10 (30 Stat., 1006), which provided ''that of the naval constructors five shall have the rank of captain, five of commander, and all others that of lieutenant commander or lieutenant. Assistant naval constructors shall have the rank of lieutenant or lieutenant (jun- ior grade). " The act of August 29, 1916 (39 Stat., 577), created the rank of rear admiral for naval constructors in addition to the ranks theretofore aathorized, the distribution to be "one-half naval constructors with the rank of rear admiral to eight and one-half naval con- structors with the rank of captain, to fourteen naval consti-uctors with the rank of commander, to seventy-one naval constructors and assistant naval constructors with rank below com- mander." (See note to sec. 1402, R. S.) The permanent rank of rear admiral on the active list in special cases was previously authorized in the Construction Coi-ps by act of June 24, 1910 (36 Stat., 607), which provided that chiefs of bureaus eligible for retirement after 30 years' service should be entitled to the permanent rank, title, and emoluments of a chief of bu- reau, while on the active list, the same as they would have received if retired for age or length of service; this pro.ision was repealed by act of August 22, 1912 (37 Stat., 328), which con- tained a pro dso that no officer who had received the benefits of the act of 1910 should be deprived thereof on accoimt of such repeal; prior to its repeal one officer of the Construction Corps, Chief Constractor Washington L. Capps, had been permanently commslsioned with the rank of rear admiral (see note to sec. 421, R. S., under " Rank of chiefs of bureaus "). See sections 1402-1404, Revised Stat- utes, and notes thereto, concerning the organi- zation of the Construction Corps, and appoint- ments, promotions, etc., therein. Historical note. — See note to section 1474, Revised Statutes. Advancement in rank and promotion of staff officers. — See note to section 1480, Revised Statutes. By act of August 29, 1916 (39 Stat., 576), it was provided that "officers of the lower grades of the * * * Construction Corps, _ * * * shall be advanced in rank up to and including the rank of lieutenant commander with the officers of the line with whom or next after whom they take precedence under existing law. " By act of July 1, 1918 (40 Stat., 718), it was provided that the advancement of staff officers of the Navy to the ranks of commander, cap- tain, and rear admiral shall be by selection in the maimer therein provided. Examinations were discontinued for promo- tion of staff officers in giade by act of May 22, 1917, section 20 (40 Stat., 89), which act and 677 Sec. 1478. PL 2. REVISED STATUTES. The Navy. section also reeiiactod a ])rovi8ion in the act of March 4, 1917 (3i) Stat.. 1182). roquirin? exami- nations of staff officers for advancement in rank. Rank of naval constructors held to be their grade. — Naval constructors belong to the staff; nevertheless they have been treated as eligible under section 42.3, Revised Statutes, for apjiointment as Chief of the Bureau of Con- str.ution and Repair, which section provided that the chief of the bureau shall be appointed from the list of othcers of the Navy "not below the grade of commander. " and sliall be a skill- ful naval constnictor. Thus under the prac- tical inter])rotation of section 42.3. naval con- structors are treated as officers of the Navy, and their relative rank as the actual rank or grade required by the section; but itia to be observed that in no other way could compliance be had Avith the explicit requirement that the officer appointed Chief of the Burea\i of Construction and Repair bo a " skillfid naval constructor. " Faults in expression were disregarded in order to carry out the manifest intention of the law- maker." (22 Op. Atty. Gen., 47. As to dif- ference between rank and grade, see notes to sees. 421, 422, 423, 1362, 14.57, and 1479, R. S.) Sec, 1478. [Civil engineers. Superseded.] This section provided as follows: " Sec. 1478. Civil engineers shall have such relative rank as the President may fix."— (3 Mar., 1871, c. 117, s. 9, v. 16, p. 536.) It was amended by act of Marcn 3, 1899, section 7 (30 Stat., 1006), which changed the words, "the relative rank of," as contained in all sections of the Revised Statutes defining the rank of officers or positions in the Navn'. to read, "the rank of"; and by act of March 3, 1903 (32 Stat., 1197), which provided for the appoint- ment of 12 assistant civil engineers, "of whom six shall have the rank of lieutenant (junior grade) and six the rank of ensign." It was superseded by act of August 29, 1916 (39 Stat., 577). which created the rank of rear admiral for civil engineers, in addition to the ranks theretofore authorized, the distribu- tion to be "one-half civil engineers with the rank of rear admiral to five and one-half civil engineers with the rank of captain, to fourteen civil engineers with the rank of commander, to eighty civil engineers and assistant civil engi- neers with the rank below commander." The permanent rank of rear admiral on the active list of the Civil Engineer Corps had previously been authorized for the benefit of Commander H. H. Rousseau by act of March 4, 1915 (38 Stat., 1191), which same act also extended the thanks of Congress to said officer for distin- guished service rendered by him as a member of the Isthmian Canal Commission in construct- ing the Panama Canal. By act of March 4, 1917 (39 Stat., 1184), it was provided that "officers of the Corps of Civil Engineers hereafter appointed shall, from the date of their original appointment, take rank and precedence with lieutenants (junior grade)." See note to section 1413, Revised Statutes, as to organization of Civil Engineer Corps, and appointments, promotions, etc., therein. Advancement in rank and promotion of staff officers. — See note to section 1480, Revised Statutes. By act of August 29, 1916 (39 Stat., 576), it was provided that "officers of the lower grades of the * * * Corps of Civil Engineers shall be advanced in rank up to and including the rank of lieutenant commander with the officers of the line ^vith whom or next after whom they take precedence under existing law." By act of July 1, 1918 (40 Stat., 718), it was provided that the adv^ancement of staff officers of the Navy to the ranks of commander, cap- tain, and rear admiral shall be by selection in the manner therein provided. By act of March 3, 1903 (32 Stat., 1197), it was provided that "promotions in the Corps of (ivil Engineers shall be after such examina- tion as the Secretary of the Navy may pre- scribe." Examinations were discontinued for promotion of staff officers in grade by act of May 22, 1917, section 20 (40 Stat., 89), which act and section also reenacted a provision in the act of March 4, 1917 (.39 Stat., 1182), requir- ing examinations of staff officers for advance- ment in rank. Historical note. — See note to section 1474, Revised Statutes. By section 1478, Revised Statutes, which is a reenactment of the statute of March 3, 1871, "civil engineers shall have such relative rank as the President may fix." An examination of the original statute shows that the authority was given to the President "in his discretion." This discretion has never been exercised and no relative rank has been assigned to these officers. It is difficult to conceiv-e that those can be considered as officers in the Navy who have no rank by which their relation to the other officers, or to the men, can be determined. In the absence of stich action by the President Held that civil engineers are civil officers. (16 Op. Atty. Gen., 203.) The authority of the President under the act of March 3, 1871 (sec. 1478, R. S.)_, '/to de- termine and fix the relativ^e rank of civil engi- neers," was not exercised until February 24, 1881, when their rank was fixed by him as follows: One with the relativ-e rank of captain, two ^\ith the relative rank of commander, three with the relative rank of lieutenant commander, and four with the relative rank of lieutenant, which action was promulgated by a general order issued by the Secretarv on that date. (17 Op. Atty. Gen., 126, holding that civil engineers are officers of the Navy and eligible for retirement as such. The general order referred toisG. O. No. 263, Feb. 24, 1881.) F'or other cases as to status of civil engineers, see note to section 1413, Revised Statutes. 678 The Navy. Pt. 2. REVISED STATUTES. Sec. 1479. Sec. 1479. [Chaplains. Superseded.] This section provided as follo-ws: "Sec. 1479. Chaplains shall have relative rank as follovi's; Four, the relative rank of cap- tain; seven, that of commander; and not more than seven, that of lieutenant-commander or lieutenant."— (3 Mar., 1871, c. 117, s. 9, v. 16, p. 536.) It was amended by act of March 3, 1899, section 7 (30 Stat., 1006), which changed the words "the relative rank of" to read "the rank of " ; by section 13 of the same act ( 30 Stat. , 1007), which provided that "naval chaplains, who do not possess relative rank, shall have the rank of lieutenant in the Navy"; and by act of June 29, 1906 (34 Stat., 554), which provided that "naval chaplains hereafter appointed shall have the rank, pay, and allowances of lieu- tenant (jimior grade) in the Na\'y until they shall have completed seven years of sei'vice, when they shall have the rank, pay, and allow- ances of lieutenant in the Navy ; and lieutenants shall be promoted, whenever vacancies occur, to the grade of lieutenant commander, which shall consist of five numbers, and when so pro- moted shall receive the rank, pay, and allow- ances of lieutenant commander in the Navy: Provided further, That nothing herein contained shall be held or construed to increase the nmn- ber of chaplains as now authorized by law or to reduce the rank or pay of any now serving." It was superseded by act of June 30, 1914 (38 Stat.,_ 404), which fixed the '^ total number of chaplains and acting chaplains in the Navy, ' ' and provided that ' ' of the total number of chap- lains and acting chaplains herein authorized ten per centum thereof shall have the rank of captain in the Navy, twenty per centum the rank of commander, twenty per centum the rank of lieutenant commander, and the remain- der to have the rank of lieutenants and lieu- tenants, junior grade." The same act (38 Stat., 403, 404) provided that "while so ser\ang acting chaplains shall have the rank, pay, and allowances of lieuten- ant, junior grade, in the Navy. After three years' sea service on board ship each acting chaplain before receiving a commission in the Navy shall establish to the satisfaction of the Secretary of the Navy by examination by a board of chaplains and medical officers of the Navy hie physical, mental, moral, and profes- sional fitness to perform the duties of chaplain in the Navy, and if found so qualified, shall be commissioned a chaplain in the Navy with the rank of lieutenant, junior grade. * * * Naval chaplains hereafter commissioned from acting chaplains shall have the rank, pay, and allowances of lieutenant, junior grade, m the Navy until they shall have completed four years' sei^dce in that grade, when, subject to examination as above prescribed, they shall have the rank, pay, and allowances of lieu- tentvut in the Navy, and chaplains with the rank of lieutenant shall have at least four years' service in that grade before promotion to the grade of lieutenant commander, after which service, chaplains shall be promoted as vacan- cies occur to the grades of lieutenant com- mander, commander, and captain." The same act (38 Stat., 404) pro\'ided "that no provision of this section shall operate to reduce the rank, pay, or allowances that would have been received by any person in the Navy except for the passage of this section, and that all laws or parts of laws inconsistent with the provisions of this section be, and the same are hereby, repealed." Advancement in rank and promotion of chaplains. — See note to section 1480, Ile\ised Statutes. By act of July 1, 1918 (40 Stat., 718), it was provided that the advancement of staff officers of the Navy to the ranks of commander, captain, and rear admiral shall be by selection in the manner therein provided. Examinations were discontinued for pro- motion of staff ofiicers in grade by act of May 22, 1917, section 20 (40 Stat., 89), which act and section also reenacted a provision in the act of March 4, 1917 (39 Stat., 1182), requiring examinations of staff officers for advancement in rank. Chaplains with the rank of lieutenant and chaplains with the rank of lieutenant (junior grade) advanced since June 30, 1914 to the rank of lieutenant shall not be advanced in rank to lieutenant commander untO they have served at least four years with the rank of lieutenant; except that this requirement of a minimum of four years' ser\ice with the rank of lieutenant shall not operate to reduce the rank, pay or allowances that would have been received by any person in the Na\y except for the passage of the section relating to chaplains in the act of June 30, 1914. This prohibition as to promo- tion being retarded applies only to those chap- lains in the service on June 30, 1914. (File 15721-7, Aug. 13, 1914.) Naval chaplains commissioned after June 30, 1914, from acting chaplains, after at least four years' serAice in the rank of lieutenant shall be promoted to the rank of lieutenant commander, subject to the restrictions placed on the number of ofiicers in the Corps of Chaplains who may have the rank of Lieutenant commander. Thereafter they are promoted to the higher authorized ranks aa vacancies occur therein without restriction as to the period of service in the intervening ranks before such advance- ments. (File 15721-7, Aug. 13, 1914.) The act of June 30, 1914, makes no proAision for the advancement of chaplains with the rank of lieutenant (junior grade) who were in the ser\ice on that date; the requirement of four years' ser\ice in the grade of chaplain with the rank of lieutenant (junior grade) applies only to those chaplains thereafter commissioned from acting chaplains. Said act, however, provides for the advancement of chaplains with the rank of lieutenant without regard to the date of their appointment as such. The advancement of chaplains with the rank of lieutenant (junior gi-ade) in the serA-ice on June 30, 1914, is governed by the proAisions of the laws in force prior to that date, which are not modified in this respect by the said act of June 30, 1914. The pro\ision that nothing in said enactment shall operate to reduce the rank, 679 Sec. 1480. Pt. 2. REVISED STATUTES. The Navy. etc., that would have been received by any person in the NaAy except for the passage there- of ])revents advancement from being retarded, but does not pro^^de for accelerating advance- ment in rank to lieutenant in their cases. In other words, Oiey are requii'cd lo serve seven years as cliaplain with the rank of lieutenant (junior grade), as required by the act of Jime 29, 1906, before being advanced in rank to lieuten- ant. (File 15721-7, Aug. 13, 1914.) The reqiiirement of four years' service with the rank of lieutenant prior to advancement to the rank of lieutenant commander is not waived in order that vacancies created by reason of the passage of the act of June 30, 1914, may be im- mediately tilled, but it is waived where its effect would be to delay promotions that woidd have been made iiTespective of that act, such as to fill vacancies created by death, resignation or retirement of officers occupying the limited number of positions. (File 15721-7, Aug. 13, 1914.) Chaplains with the rank of lieutenant com- mander in the service on June 30, 1914, are advanced in rank to commander and captain as vacancies occur in those ranks, without regard to length of ser\'ice with the rank of commander or lieutenant commander. (File 15721-7, Aug. 13, 1914.) The requirement of fovu" years' service in the grade of chaplain with the rank of lieuten- ant before promotion to the grade of chaplain with the rank of lieutenant commander, should not be held to retard the promotion of chaplains in the serAice on June 30, 1914, who have com- pleted seven years in the rank of lieutenant (junior grade), as required by the act of June 29, 1906, such promotion being to fill vacancies in the higher ranks in the grade of chaplain; because the act of June 30, 1914, provides that no pro\'ision thereof shall operate to reduce the rank, pay or allowances that might have been received by any person in the I^&yj except for the passage of the chaplain section therein. However, a chaplain would not be entitled to promotion to any rank above that of lieutenant, even after four years' service as a lieutenant, unless a vacancy occmred in the higher rank. Although the act of August 29, 1916, changed the retiiing age from 62 to 64 years, and if this had not been done a vacancy would have been created by the retirement of a chaplain for age upon his reaching 62 years, nevertheless the Sec. 1480. [Professors of Mathematics. Promotions in staff corps.] Pro- fessors of mathematics shall have relative rank as follows : Tliree, the relative rank of captain; four, that of commander; and five, that of lieutenant-com- mander or lieutenant. [The grades established in the six preceding sections for the staff corps of the Navy shall be filled by appointment from the highest members in each corps, according to seniority; and new commis- sions shall be issued to the officers so appointed, in which the titles and grades established in said sections shall be inserted; and no existing com- mission shall bo vacated in the said several staff coi'ps, except by the issue of the new commissions required by the provisions of this section; and no officer shall be reduced in rank or lose seniority in his own corj^s by any change proxision in said act of August 29, 1916, that "nothing contained in this act shall be con- strued to reduce the rank, pay, or allowances of any officer in the Navy or Marine Corps as now pro"vided by law,'' does not entitle a junior ofl^- cer to promotion in rank which he would ha^'e received had the senior officer been retiied for age at 62 years. Onthedateof said act of August 29, 1916, the chaplain in question had the rank, pay, and allowances of lieutenant, noneof which has been reduced by the operation of said act. The act of August 29, 1916, changing the retire- ment age, may have operated to retard his ad- vancement by delaying the retirement of the senior chaplain for age, but it did not operate to reduce the rank, pay, and allowances to which he was then or is now entitled by law. Accord- ingly, held that the chaplain in question is not entitled to promotion to the rank of lieutenant commander, and -will not be entitled to such ad- vancement until after a vacancy occurs in said rank for which he qualifies on examination as required by section 20 of the act of May 22, 1917. (File 15721-20, Sept. 24, 1918.) "Grade" and "rank" in the Chaplain Corps. — The word "grade" as used in the act of June 30, 1914, is an obvious error. There are but two gi'ades in the Corps of Chaplains; first, the gi'ade of chaplain, in which officers are distributed in the "ranks" of captain, com- mander, lieutenant commander, lieutenant, and lieutenant (junior gi'ade); and secondly, the grade of acting chaplain, in which the offi- cers have the "rank" of lieutenant (junior grade). It is necessary to read the word "grade" as "rank" in said act in order to con- form to the well-established meaning and usage of the words "grade" and "rank." (File 15721-7, Aug. 13, 1914. For other cases con- cerning "rank" and "grade" see notes to sees. 421, 422, 423, 1362, 1457, 1477, and 1480, R. S.) Pay of chaplains. — See act of August 29, 1916 (39 Stat., 581), pro^dding that "hereafter all commissioned officers of the active list of the active list of the Navy shall receive the same pay and allowances according to rank and length of serAdce." It had pre^vdously been provided by act of May 13, 1908 (35 Stat., 128), that "the pay and allowances of chaplains in the NaA'y shall in no case exceed that provided for lieutenant commanders." The pay of the various ranks in the Navy is proAdded for by act of May 13, 1908 (53 Stat. , 127). See note to sec- tion 1556, Revised Statutes. 680 The Navy. PL 2. REVISED STATUTES. Sec. 1480. which may be required under the provisions of the said six preceding sections : Provided, That the issuing of a new appointment and commission to any officer of the pay corps under the provisions of this section shall not affect or annul any existing bond, but the same shall remain in force, and apply to such new appointment and commission.] — (31 May, 1872, c. 240, s. 1, v. 17, p. 192. 27 Feb., 1877, c. 69, v. 19, f. 244.) Army. The motion was decisively defeated (citing Ferrand Records, Federal Convention, Vol. II, p. 405). "Argument is unnecessary to demonstrate how idle it would have been to have conferred the power on the President if, in practice, it might have been taken from him by statute, as would be the case if section 1480, as amended, were to be applied. (Hamilton in the Federalist, No. 76; Story on the Consti- tution, Vol. II, sees. 1526-1533; and Judge Cooley's note to the last section.) Moreover the alleged right to a statutory promotion could never be enforced by mandamus or in- junction, if the President should refuse to nom- inate, or the Senate should refuse to confirm the senior officer. " (31 Op. Atty. Gen., 80.) The provisions of section 1480, Revised Stat- utes, as amended, considered, and AeZrf(]) that advancement of staff officers in the Medical, Pay, and Construction Corps, and Corps of Civil Engineers, from the rank of captain to the rank of rear admiral, may be made upon selection by the President, whether or not such advance- ment be regarded as an advancement in rank only, or as an advancement in grade; and (2) that the promotion of all staff officers of tne Navy to higher offices may be made upon selec- tion by the President. (31 Op. Atty. Gen., 80. Note that this opinion was rendered by the Attorney General prior to the act of July 1, 1918, above cited, authorizing promotion by selection to certain higher ranks in the staff corps.) For other cases, see note to section 1458, Re- vised Statutes; and see cases noted under Con- stitution, Article II, section 2, clause 2, "III. Power of Congress," and "IV. Statutory re- quirements and qualifications;" see also note to section 1372, Revised Statutes, "Promotion by seniority and not competitive examination. " Amendment to this section as originally em- bodied in the Revised Statutes was made by act of February 27, 1877 (19_Stat., 244), which added thereto the portion printed in brackets above, and which in this form was embodied in the second edition of the Revised Statutes. (See "Introduction," ante, under "II.The Revised Statutes.") Amendment to this section was also made by act of March 3, 1899, section 7 (30 Stat., 1006), which changed the words, "the rel- ative rank of," to read, "the rank of;" and by act of August 29, 1916 (39 Stat., 577), which provided that "hereafter no fm-ther appointments shall be made to the Corps of Professors of Mathematics, and that corps shall cease to exist upon the death, resignation, or dismissal of the of- ficers now carried in that corps on the ac- tive and retii-ed lists of the Na\^. " By act of July 1, 1918 (40 Stat., 718), it was provided that the advancement of staff of- ficers of the Navy to the ranks of comman- der, captain, and rear admiral, shall be by selection in the manner therein provided. Examinations were discontinued for pro- motion of staff officers in grade by act of May 22, 1917, section 20 (40 Stat., 89), which act and section also reenacted a provision in the act of March 4, 1917 (39 Stat., 1182), requiring examinations of staff officers for advancement in rank. "Pay Corps " is to be called the "Supply Corps, " by act of July 11, 1919 (41 Stat., 147). As to bonds of officers in the Supply Corps, see note to section 1383, Revised Statutes. See notes to sections 1399-1401, Revised Stat- utes, concerning organization of Corps of Professors of Mathematics, duties of profes- sors of mathematics, etc. Constitutionality of amended, section 1480. — Section 1480 as amended being appli- cable to advancement from grade to grade in the staff corps, it seems plain that Congress sought thereby to restrict the President to the nomina- tii:)n of a single person of its own choosing, and this without regard to his comparative fitness for the larger responsibilities of the higher of- fice. The attempt so to do is in opposition to that provision of the Constitution (Art. II, sec. 2), requiring him to nominate and by and with the adviceandconsentof the Senate to appoint. (31. Op. Atty. Gen., 80, citing and affirming 30 Op. Atty. Gen., 177 and 29 Op. Atty. Gen., 254.) The President's power in regard to appoint- ments and the Senate's check thereon was ex- haustively canvassed in the Constitutional Con- vention. It was at one time moved that his power be restricted to "those cases not other- wise proAdded for by this Constitution or by law. " The very ground urged in support of the motion was that otherwise the President would be given too much control over the 'Grades established," meaning of. — The reference in section 1480 to "the gi'ades established" in the six preceding sections for the staff corps of the Navy is the identical language of the ninth section of the act of March 3,_ 1871 (16 Stat., 536), which refers to the pre- vious sections of that act in which grade and relative rank in the staff department of the Na\'y are created together uno fiatu; whereas in the Revised Statutes the two subjects are treated in distinct chapters. Tliis effectually disposes of the argument that there was any establishing of grades in the sections assigning relative rank; the mistake of the revisers in using the expression, "grades established,'' being too evident to admit of doubt. Accord- ingly, held that in the organization of the ]\led- ical Corps of the Navy there is no such grade as passed assistant siu'geon, but tliat passed assistant surgeon is merely a class in the grade of assistant surgeon, notwithstanding that section 1480 as amended refers to "grades established" in the six preceding sections, and 681 Sec. 1480. Pi. 2. REVISED STATUTES. The Navy. tliat section 1474 pro\'ides for passed assistant surgeons with tho relative rank of "lieutenant or master." (19 Op. Atty. Gen., 109; see note to sec. 1368, R. S.,. as to status of passed assistant surgeons.) Bank of rear admiral in the staff corps not a new "grade." — ^The act of August 29, 1916 (39 Stat., o77), proA-iding for the rank of rear admiral in certain staff corps of the Navy, is regarded as creating a new rank of rear admiral within the old grade of, e. g., medical director, rather than as creating a now grade of, e. g., "medical director ^vith the rank of rear admiral." Accordingly, section 1480, Re^^8ed Statutes, as amended, because in terms api)licable to such old grade, would apply to advancement thereto from a lower grade. (31 Op. Atty. Gen., 80, noted above, holding imconstitutional the requirement that promo- tions be made by seniority.) The act of August 29, 1916 (39 Stat., 577), did not create new grades. The words in that act, "the total number of commissioned officers * * * shall be distribiited in the various grades," etc., while apt for distribution among existing, are inapt for the creation of new grades. (31 Op. Atty. Gen., 80.) In each of the 16 different grades created by sections 1474-1479, inclusive, there was a sepa- rate and distinctive word title for each. Had the purpose been to create a new grade in the act of 1916, a new word title other than, e. g., "medical director," such as, for example, "siu-geon general," would have been used. (31 Op. Atty. Gen., 80.) Advancement in rank without change of grade. — Section 1480, Revised Statutes, being limited to grade can not affect advancement in rank; and because it is limited to those grades established by sections 1474-1479, Rexdsed Statutes, it can not affect advancement in the staff corjjs from captain to rear admiral. (31 Op. Atty. Gen., 80.) \\Tienever Congress creates a new grade or rank, without making any provision for filling it, the selection, in the case of a vacancy in grade, is made by the President by and with the ach-ice and consent of the Senate (citing 29 Op. Atty. Gen., 117); while in the case of a vacancy in rank, it is made by the President as commander in chief of the Navy, without any action on the part of the Senate. (Citing Gen. Ainsworth's case, 22 Op. Atty. Gen., 480.) Neither in the act of August 29, 1910, nor in the old law is there any provision for advance- ment from the rank of captain to that of rear admiral in any of the various staff corps; and the function of selection in every such case must be exercised by the President alone under the rule stated. (31 Op. Atty. Gen., 80.) Under section 1480, as amended, it is not necessiiry to issue new commissions or appoint- ments to staff officers receiving an advance in rank within the same grade; the rank of such officers changes with their seniority in grade, and as they hold the same office, such change in rank may be indicated by a notification from the Secretaiy of the Navy. (20 Op. Atty. Gen., 358; see also 10 Op. Atty. Gen., 652; and see note to Constitution, Art. II, sec. 3, under "II. Duty to commission officera.") The law rcqiures that commissions shall be issued to officers ai)j)ointed or promoted to different offices or grades in the Pay Corps of the Navy, but there is no law wliich requires a commission to be issued on mere change of rank without change of office (citing 20 Op. Atty. Gen., 358, 363). The mere advancement in rank without a change in office does not create an office and is not accomplished by an exercise of the appointing power. (17 Comp. Dec, 255.) In the absence of a specific law for the advancement of a pajTnaster_ of the Navy from one rank to another within the grade of payrnaster, such advancement is primarily within the discretion of the Executive, limited by the rule of seniority (sec. 1480) and subject to the consent of the Senate (sec. 1506, amend- ed). This discretion has been exercised under a rule of many years' practice in determining the date when such officer attains a higher rank by the laws providing for precedence of officers of the line and staff corps (sees. 1485, 1486). The staff officer takes precedence next below a certain line officer of the same credited service. This line officer is known in the service as the staff officer's "running mate"; and by the practice referred to when the "run- ning mate" is regularly promoted or fails in examination the staff officer is advanced to the higher rank. When the date for advancement of a paymaster with the rank of lieutenant to the rank of lieutenant commander has been determined by the rule aforesaid and his advancement to that rank on the date ascer- tained has been consented to by the Senate, he becomes entitled to the pay and emoliunents of the higher rank from the date he so took rank. (16 Comp. Dec, 662; see also 17 Comp. Dec. , 255. Compare note to sec. 1485, and note to Constitutionj Art. II, sec. 3, under "II. Duty to commission officers.") By act of August 29, 1916 (39 Stat., 576), itwasprovided that "officers of tne lower grades of the Medical Corps, Pay Corps, Construction Corps, and Corps of Civil Engineers shall be advanced in rank up to and including the rank of lieu- tenant commander mth the officers of the line with whom or next after whom they take pre- cedence under existing law"; and by act of Julyl,1918 (40 Stat, 718), itwasprovided that the advancement of staff officers of the Navy to the ranks of commander, captain, and rear admiral shall be by selection in the manner therein provided. Advancement in rank of professors of mathematics. — There is no statute which limits the discretion of the Executive with regard to the division of the five junior officers of the Corps of Professors of Mathematics be- tween the grades of lieutenant commander and lieutenant. If the President deems it appro- priate to nominate one or more of the profes- sors of mathematics of the Navy now com- missioned in the grade of lieutenant to be com- missioned in the grade of lieutenant com- mander, it is entirely within his discretion so to do. (Op. Atty. Gen., Mar. 2, 1909, file 26289- 5a, following 26 Op. Atty. Gen., 511, noted imder sec 1376, R. S., in which it was held, with reference to the Pay Corps, that where the law fixes an aggregate number 682 The Navy. Pt.2. REVISED STATUTES. Sec. 1480. of officers, in two grades, without provid- ing for the distribution of such officers be- tween said grades, the number to be ap- pointed in each of the two grades is necessarily left to Executive discretion, to be controlled by the general laws and regulations providing for the advancement of officers in the naval service. See also file 26289-9, Mar. 30, 1912.) "Grade," "rank," and "title" in staff corps. — ^^^lile "gi'ade' ' has the same meaning as "office," "rank" is merely a classification to fix the position of officers with respect to other officers in the same or in other grades as to com- mand, precedence, privilege, or pay. " Rank " may be conferred by mere notification and without either examination, confirmation, or commission (Gen. Wood's case, 15 Ct. Cls., 151, 159; Wood v. U. S., 107 U. S., 414; 20 Op. Atty. Gen., 358, 362, 363; 19 Op. Atty. Gen., 169; 27 Op. Atty. Gen., 376); so also while "grade" is only partiallv, ' ' rank "is wholly, within the con- trol of Congress (Wood v. U. S., 107 U. S., 414, 417; Senate Rep. 2163, 38th Cong., 2d sess.). (31 Op. Atty. Gen., 80.) The naval appropriation act of March 3, 1871 (16 Stat., 535-538), reorganized to some extent the staff corps of the Navy. As to the Medical Corps it provided, for example, for "medical directors who shall have the relative rank of captain, " as to the Engineer Corps, for example, "chief engineers who shall have the relative rank of captain," "chief engineers who shall have the relative rank of commander. ' ' Of the naval constructors it said "two shall have the relative rank of captain, three of commander, and all others that of lieutenant commander or lieutenant." Section 10 then provided: "That the foregoing grades hereby established for the staff corps of the Navy, shall be filled_ by ap- pointment from the highest numbers in each corps according to seniority, and that new com- missions shall be issued to the officers so ap- pointed, in which commissions the titles and grades herein established shall be inserted. Here we have created offices of, for example, "medical directors," "pay inspectors, ""chief engineers," "naval constructors," with no provision for their position in the general scheme of the Navy, unless the added words, for example, "with the relative rank of cap- tain" cover this omission. We then have the reference in section 10 to the foregoing estab- lishment as one of "grades" and "titles" which must be specified in the commission. What "grades" and "titles" are referred to? It is clear both as a matter of common sense and of authority that the "grades" referred to in section 10 of the act of March 3, 1871, are, for example, "pay directors with the rank of captain," "chief engineers with the rank of commander," "chief engineers with the rank of lieutenant commander," etc. (31 Op. Atty. Gen., 505, 513.) Previous Attorneys General have held with respect to the phrases corresponding to "medi- cal director with the rank of rear admiral," that the first two words represent the title to the office, while the latter words merely give it rank (citing 10 Op. Atty. Gen., 377; 20 Op. Atty. Gen., 358, reversing 16 Op. Atty. Gen:, 414, 417; 28 Op. Atty. Gen., 429, 526; Op. Atty. Gen., Mar. 15, 1911, file 22724-16:3). (31 Op. Atty. Gen., 80.) The grade of chief engineer ia one grade; they hold the same office; their relative rank among the chief engineers changes with their seniority in that grade, but the office of chief engineer remains the same. It is clear that the mere fact that different relative rank is assigned to officers whose office is designated by the same title does not necessarily put such officers in different grades. (20 Op. Atty. Gen., 358, explaining 16 Op Atty. Gen., 414.) Section 1475, Revised Statutes, does not give to a pay inspector the grade of commander. It confers upon him the rank of commander by relation only to the rank of a line officer of that grade. By the use of the terms, "relative rank," in that section. Congress intended to make the grades of the Pay Corps of the Navy equal to, but not identical with, the grades of the line with which they are Ijy those terma associated. As generally used in reference to the naval and military service, the word ' ' title " signifies the name by which an office or the holder of an office is designated and distin- guished, and by which the officer has a right to be addressed; "grade" one of the divisionsor degrees in the particular branch of the service according to which officers therein are arranged; and "rank" the position of officers of different grades or of the same grade, in point of author- ity, precedence, or the like, of one over another. Sometimes "rank " is used as synonymous with "CTade," and the title of an officer, for example, admiral, vice admiral, etc., may denote both his grade and his rank. The designation, ' ' pay inspector," expressed both title and grade in the Pay Corps. Held, that a commission in the folloAving form, "John Doe, a pay inspector from the day of , A. D. 187 — , with the relative rank of commander," gives the appropriate title and grade of the officer named therein, and fully satisfies the require- ment of section 1480, Revised Statutes. (16 Op. Atty. Gen., 414.) A commission gives the officer, by the words "pay inspector," the title and grade to which he has a right. The addition of the relative rank, while not positively required by the statute, is eminently appropriate. Especially is this the case in view of the fact that, with reference to certain officers of the staff corps, this would be necessary, as their grade would be determined by the addition of their relative rank. (16 Op. Atty. Gen., 414, citing sees. 1390 and 1476, R. S.) The act of August 29, 1916 (39 Stat, 577), makes reference to the "grade of assistant surgeon," showing that the title of the grade was "assistant surgeon" and that the added words in section 1474, "the relative rank of master or ensign," were no part of the defini- tion of the grade but merely a classification within it. (31 Op. Atty. Gen., 80.) The rank conferred upon professors of math- ematics by section 1480, Revised Statutes, does not confer upon them the corresponding grade. A professor of mathematics with the rank of captain, placed on the retired list with the rank of rear admiral on account of ci\dl war service (act Mar. 3, 1899, sec. 11, 30 Stat., 1007), held at the time of his retirement the grade of pro- 54641°— 22- -44 683 Sec. 1480. Pt.S. REVISED STATUTES. The Navy. fessor of mathematicB and not the grade of captain. (U^ Coinp. Dec, 211.) Tlie grade of an officer in the Navy is his otlicial station, by ^vhich are regulated his powers, duties, and pay. His pay may he further governed hy his time of service within a grade, either in fact rendered within the grade, or constructively performed therein through the force of statutes. That the oflice of professor of mathematics is a grade, is recog- nized by the act of April 17, 1866, section 7 (14 Stat., 38), which provides, "That hereafter no vacancy in the grade of professor of mathe- matics in the Na\'y shall be filled." (Roget v. U. S.,148U. S.,167, 171.) A\Tiere the word "grade" is used in a statute relating to the Army to designate, indiscrim- inately, first an office and then a rank, it does not signify "office" in its first employment and "rank" in the second, but refers to a quality which may be common to both, viz, that of conferring relative superiority of position. The place of assistant surgeon is a step in promotion; so is that of captain on the medical staff. They are not steps as regards each other. The latter is a step within the former, a subgrade. It is a step above another grade. Those who have been advanced to it stand above those who have not been; and such seems to have been plainly the intent of the legislature. It is unnecessary to issue cenimissions to assistant surgeons in the Army upon their passing from the grade of lieutenant to that of captain. The office for which in these cases the President issues a commission is that of assistant surgeon; the frades of lieutenant and captain are not offices ut are incident to the office of assistant surgeon. It appears that by section 1480, Revised Stat- utes, certain officers of the Navy receive a new commission for every grade which they attain. This is by an express statute that is limited to the cases named therein. Although it would reciuire but a slight recognition by Congress to develop these grades (lieutenant and captain in the Army Medical Department) into separate offices, this has not been done as yet; and in the meantime the absence of a statutory provision like that in section 1480 is significant. (16 Op. Atty. Gen., 652.) The officers of different corps of the staff, such as the Medical Corj^s and the Pay Corps, have separate and distinct titles appropriate to the nature of their service and to their rank in the corps, and in addition thereto are given relative rank by the same title that is applied to officers of the line. The line furnishes the standard of rank for officers of all classes. A captain in the line is merely a captain and has but one title to designate both his office and his rank. An officer of the staff has an official title to identify his position in his corps, and also a relative rank in addition, the latter being arbitrarily fixed Ijy Congress to designate his relative rank in the service in accordance with the line standard. The rank conferred upon a person holding the position of medical director is purely statutory and arbitrary, and there is no reason why a retired medical director should not hold a higher relative rank than that which is per- mitted on the active list. That Congress has in other instances contemplated a similar result is apparent from the provisions of section 14S1, wliich provides that certain staff officers shall, wluiu retired, have the relative rank of commodore. (22 Op. Atty. Gen., 433.) A class exists in the Army and Navy which does not have to do with the actual maneuver- ing of a regiment or shij) of war, but which per- forms services deemed equally essential to that end, for example, paymasters, surgeons, chap- lains, constructors, etc. There were and are reasons, based upon the efficiency of the ser\'ice looked at as a whole, why a rank should be given to this class commensurate with the rank given to the class which actually exercised command. The difficulty was that in the case of an officer actually exercising command, his office or title correctly represented his rank ex- cept in exceptional cases. In the case, however, of, for example, paymasters, surgeons, etc., the title or office indicated no rank in the Navy as a whole. It was deemed necessary, therefore, to attach to the title or office of such persons a rank which should fix their precedence, pay, etc., and thus bring them in line with the rest of the serxdce. (31 Op. Attv. Gen., 505, citing 16 Op. Atty. Gen., 414.) "Every officer in the Navy shall be designa- ted and addressed by the title of his rank with- out any discrimination whatever. In written communications, the name of the corps to which any staff officer belongs will be stated immediately after his name; for example: Lieutenant John Doe, Medical Corps, U. S. Na\'y; Lieutenant John Doe, Pay Corps, U. S. Navy; Lieutenant John Doe, Construction Corps, U. S. Navy; Lieutenant John Doe, Civil Engineer Corps, U. S. Navv." (Art. R 1001 (2), ■"Navy Regs., 1913, C. N. R. 12, Sept. 12, 1918. The designation of the ' ' Pay Corps " was changed to "Supply Corps," by act of Julv 11, 1919, 41 Stat., 147.) "All ofl^cers on the retired list have the titles of the rank with which retired." (Art. R 1002 (5), Navy Regs., 1913.) "Officers in oral official communica- tions shall be addressed by the title of their rank, except that those below the rank of com- mander may be addressed by the title of their rank or as Mr.; and, in the case of officers of the Medical Corps, as Dr." (Art. R 1008, Navy Regs., 1913, C. N. R. 12, Sept. 12, 1918.) On general subject of titles, and powers of head of department with reference thereto, see note to section 1471, Re\dsed Statutes, under "Titles of chiefs of bureaus." For other cases concerning "rank," "grade" and "title," see notes to sections 421, 422, 423, . 1362, 1457, 1477, 1479, and 1481, Revised Stat- utes. See also, above, "Grades established, meaning of." Examinations required for promotion, in addition to seniority. — The Re\'ised Statutes contained no specific provisions for filling grades in the staff corps, but 1)V act of February 27, 1877 (19 Stat., 244), the f6llowing was added to section 1480: "The_ grades established by the six preceding sections for the staff corps of the Navy shall be filled by appointment from the highest meml^ers in each corps, according to seniority; and new commis- sions shall be issued to the officers so appointed, in which the titles and grades established in said sections shall be inserted." Sections 684 The Navy. Pt.2. REVISED STATUTES. Sec. 1481. 1498-1510, Revised Statutes, provide for exara- inations for promotion as an additional requi- site to seniority. (31 Op. Atty. Gen. , 80. _ Ex- aminations were discontinued for promotion of staff officers in grade by act of May 22, 1917, sec. 20 (40 Stat. 89), which act and section also reenacted a provision in the act of Mar. 4, 1917 (39 Stat., 1182), requiring examinations of staff officers for advancement in rank.) Competitive examinations for promo- tion not authorized under this section. — The custom and practice of the Na^-y Depart- ment, sanctioned by section 1372, Ile\dsed Statutes, of requiring competitive examinations of assistant surgeons, and assigning them posi- tions on the Navy Eegister in the order of their relative merit as ascertained and reported by the board of examiners, is not. under section 1480, Revised Statutes, as amended by act of February 27, 1877, correct; the effect of the latter law being to adopt the rule of seniority in regard to promotions from one gi-ade to another in the Medical Corps of the Navy. (17 Op. Atty. Gen., 48.) Promotions required to be by seniority under this section. — A passed assistant surgeon in the Navy having passed the neces- sary examination for promotion to surgeon, his claim to be promoted according to seniority is well founded. (17 Op. Atty Gen., 48.) The act of February 27, 1877, embodied in section 1480, is prospective in its character, and is only to take effect from the date of its enactment. Its language contemplates that the rule prescribed by it may not have thereto- fore always been followed in reference to rank or seniority. (17 Op. Atty. Gen., 48.) The act of March 3, 1871, section 10 (16 Stat., 536), which is substantially identical with the actof February 27, 1877 (19 Stat., 249), embodied in section 1480, Revised Statutes, contemplated by the use of the words ' ' highest numbers in each corps according to seniority," that the promotions should be by seniority and not by competitive examination; and the pro- vision that ' ' no officer shall be reduced in rank or lose seniority" etc., contemplated also that unless this pro\'ision were inserted changes would be made in gi-ades or numbers which had been theretofore fixed, which it was not the intention of Congress to disturb. This clause of the act of March 3, 1871, did not find its way into the original edition of the Revised Statutes, but is now in the second edition, section 1480. It was, however, reenacted by the act of Februaiy 27, 1877, which is a sub- stantial reenactment with the exception that the word 'members" is used instead of "num- bers," and the words, "under the provisions of the said six preceding sections " are substi- tuted for the words, ' " under the pro^^sions of this act," which appeared in the original statute. These changes apparently have no other object than to adapt the statute to its place in the revision. The effect of it is to adopt the rule of seniority in regard to promotions from one grade to another in the staff corps. (17 Op. Atty Gen., 48.) For other cases, see above, under "Consti- tutionality of amended section 1480." Corps of Civil Engineers. — Ci\'il engineers ai'e plainly included among those contemplated by the amended section 1480, as belonging to the "staff corps of the Navy." (17 Op. Atty. Gen., 126.) Errors in commission. — ^Where through a clerical error an officer of the Navy was com- missioned a passed assistant siugeon with the rank of lieutenant, instead of with the rank of lieutenant (junior grade), he is only entitled to the pay of the lesser grade. (11 Comp. Dec. , 43. See also note to sec. 1474, R. S., and see note to Constitution, Art. II, sec. 3, under "II. Duty to commission officers.") Sec. 1481. [When retired for age or length of service.] Officers of the Med- ical, Pay, and Engineer Corps, chaplains, professors of mathematics, and con- structors, who shall have served faithfully for forty-five years, shall, when retired, have the relative rank of commodore; and officers of these several corps who have been or shall be retired at the age of sixty-two years, before having served for forty-five years, but who shall have served faithfully until retired, shall, on the completion of forty years from their entry into the service, have the relative rank of commodore. — (3 Mar., 1871, c. 117, s. 11, v. 16, p. 537.) Amendment to this section was made by act of March 3, 1899 (30 Stat., 1004), wliich abol- ished the Engineer Corps (see note to sec. 1390, R. S.); by the same act, section 7 (30 Stat., 1006), which changed the words "the relative rank of." to read "the rank of"; by act of August 29, 1916 (.39 Stat., 579), which changed the rethement age from 62 to 64 years; and by act of July 11, 1919 (41 Stat., 147), which provided 'that "hereafter the Pay Corps shall be called the Supply Corps." By act of August 5, 1882 (22 Stat., 286), it was provided that "hereafter there sliall be no promotion or increase of pay in the retired list of the Navy, but the rank and pay of officers on the retired list shall be the same that they are when such officers shall be retired. " By act of August 29, 1916 (39 Stat., 611), pro- \dsion was made for retirement of colonels in the Marine Corj^s with the rank of briga- dier general after 4-5 years' service, or on retirement for age after 40 year's senice, or on completion of 40 years from date of entry in the cases of those retired on ac- count of age, in language similar to section 1481. The said enactment of August 29, 1916, was repealed by act of May 22, 1917, section 14 (40 Stat., 87.) 685 Sec. 1481. PL 2. REVISED STATUTES. The Navy. This section was repealed in part by the actol August 5, 18S2 [above cited], jmihibiting I)r()motioii8 on the retired list. There were three classes of olhcers to which the act of March 3, 1871 (16 Stat., 537), embodied in sec- tion 1481, applied at the time of its enactment: (1) Oflicei-s of the several staff coi-ps enumerated 'who filial 1 have served faithfully for forty-five years"; (2) officers of the several staff corps retired after attaining the age of 62 years, who liad not completed 45 years' service, but who had completed 40 years' service and had sened faithfully until retii-ed; and (3) officers of the several staff corps retired from the service after attaining the age of 62 years, who had not sei*ved 45 years or 40 years; officers of this last class were entitled to the relative rank of commodore on the completion of 40 years from the date of their entry into the service; the first two classes were entitled to the relative rank of commodore when retired. The Navy Registers from March 3, 1871, to August 5, 1882, show that officers of each of the foregoing classes were advanced to the rank of commodore under sec- tion 1481; and that in the cases of officers in class 3, time on the retired list was counted in computing the 40 years' service in order to give them the increased rank (see 26 Op. Atty. Gen., 57). However, the act of August 5, 1882, put an end to promotions of officers of class 3, and since that date the Navy Registers do not show that any officers of class 3 have been promoted to the rank of commodore under this section, although the records of the Navy Department show that there have been many applications from such officers for increased rank under said section, which applications have been denied. It is clear that the Navy Department has, since the enactment of August 5, 1882, construed it as prohibiting all promotions on the retired list, including those previously authorized by sec- tion 1481, Revised Statutes, and this construc- tion is supported l)y the Attorney General's opinions with reference to promotions on the retired list under sections 1460 and 1461, Re- vised Statutes (see 17 Op. Atty. Gen., 495; 26 Op. Atty. Gen., 498, 501). Accordingly, held, that an officer retu-ed at the age of 62 years, before having served 45 years, but who served faithfully until retired, and who, after retire- ment, completed 40 years from the date of his entry into the sei'vice, is not entitled to be advanced to the rank of commodore on the re- tu-ed list under section 1481. (File 27231-112, Apr. 1, 1918.) The act of August 5, 1882, expressly declares in the plainest language that no oflScer shall be promoted after his retirement, thereby re- pealing section 1481, to the extent that it con- flicts with that section. The act in terms applies to all officers irrespective of the time when they entered the service, and is not limited to those who entered the service sub- sequent to its passage. (Op. Atty. Gen., Jan. 28, 1921, file 27231-141:6.) Retirement of officer after 45 years' service. — Under the provisions of section 1481, Revised Statutes, an officer ers shall be advanced in rank up to and including the rank of lieutenant com- mander with the officers of the line with whom or next after whom they take precedence under existing law" (act Aug." 29, 1916, 39 Stat., 576), and that the advancement of staff officers of the Navy to the ranks of commander, captain, and rear admiral shall be by selection (act July 1, 1918, 40 Stat., 718). Section 1485 fixes precedence of officers of the staff cor]>s without affecting their rank or office. (31 Op. Atty. Gen., 80.) "OflB.cers -who have been advanced or lost numbers." — A line officer promoted by selection to the next higher grade is to be re- garded as having been advanced in numbers on the Navy Register and gained length of service accordingly; he should be credited with a constructive length of service necessary and sufticient to place him above the officers over whom he was thus advanced. The offi- cers over whom he was advanced are not to be regarded as having lost numbers and length of service. _ The promotion by selection is to be accomplished, not by inflicting any injury upon officers who had been less fortunate, per- haps, in their opportunities; but by conferring promotion upon the officer advanced. The proceeding is one of advancement strictly, and m no case operates to degrade any officer or deprive him of anything which he had already obtained by length of serWce. Cases might be supposed in which it might do him inciden- tal injury by placing above him an officer who stood below him, but his own position with reference to all grades of the NaA-y would be that which it originally was. Therefore in regulating the relative rank of the staff and the line, under section 1486, Revised Statutes, no officer of the line would be found to have lost anything of his actual length of ser\dce. Quaere: Whether the phrase, "officers who have been advanced or lost numbers on the Navy Register shall be considered as having gained or lost length of service accordingly," is intended to use the words "gained" and " lost" as terms which are the converse of each other aiid refers to such incidental loss as occurs by change in relative position between officers, or whether the expression, " lost length of serv- ice," is to be considered as referring to those officers who may have been degraded, as by sentence of court-martial? (17 Op. Atty. Gen., 56.) In 17 Op. Atty. Gen., 56 (noted above), the case was presented of a line officer, Francis M. 694 The Navy. rt. J. REVISED STATUTES. Sec. 1487. Ramsay, who entered the service on October 5, 1850, and who, under the act of July 25, 1866 (14 Stat., 222), was promoted by selection and thereby advanced on the NaA'y Register next above a line officer, Richard L. Law, who entered the service February 17, 1841. The Attorney General held that Ramsay should, under section 1486, "be considered as having gained length of service according to his pro- motion." Following this opinion there was published in the Na\y Re^ster of 1882, for the first time, a precedence list of officers of the Navy, and reference to this list (p. 167) shows that Capt. Ramsay was given, pursuant to the Attorney General's opinion, a date of pre- cedence as February 17, 1841, being the same date as that held by Capt. Law, next above whom Ramsay was so advanced. Thus Ramsay was credited with constructive ser\T.ce of more than nine years for purposes of precedence. This opinion of the Attorney General continued to be followed by the Navy Department until a comparatively recent date in the publication of precedence tables in the annual Navy Register. (File 11130-63:5, Feb. 14, 1921, citing precedents.) The first departure from the rule required by the Attorney General's opinion (17 Op. Atty. Gen., 56) appears to have occurred in certain cases of staff officers who were advanced to the rank of rear admiral in 1910, without any change in their dates of precedence. No explanation of this departure is forthcoming, other than that the Attorney General's opinion and the manda- tory pro\asion of section 1486 must have been overlooked or disregarded without authority of law. Similarly, in the cases of certain officers, line and staff, who have been advanced to the ranks of commander, captain, and rear admiral by selection in accordance with the acts of August 29, 1916 (39 Stat., 578), and July 1, 1918 (40 Stat., 718), such advancement has not been accompanied by any change in their dates of precedence as required by the Attorney Gen- eral's opinion and section 1486. (File 11130 63:5, Feb. 14, 1921.) Held, that officers of the line and staff of the Navy, who entered the Navy prior to March 4, 1913, and who have been advanced on the Navy Register, should be credited, for purposes of precedence, in accordance with section 1486, with "constructive ser\T.ce" sufficient to place them ahead of all others, line and staff, over whom they have been so advanced. This applies as much where officers have been ad- vanced by selection over officers in their o^vn corps as in any other case. (32 Op. Atty. Gen., 476, Mar. 3, 1921, following 17 Op. Atty Gen., 56.) The advancement of an officer in numbers pursuant to a special act of Congress (Sept. 30, 1890, 26 Stat., 552, case of Chief Engineer George Wallace Mehdlle), operates to make him gain length of ser\ice under section 1486, Re\dsed Statutes, but this proxdsion of that section has reference only to the question of rank and precedence mentioned in section 1485, and does not operate to increase his length of sendee for purposes of pav. The act of March 3, 1883 (22 Stat., 473),"pro\dding that officers shall be credited with '"the actual time they may have served as officers or enlisted men in the Regular or Volunteer Army or Nav\'', or both," relates to crediting actual ser\-ice which is distinct from constructive ser\'ice which an officer gains under section 1486 by advance in numbers. (5 Comp. Dec, 756.) Where a warrant officer is sentenced by court-martial to loss of niiml>ers, the effect of which is to place him below an officer of a later date of appointment, he is to be regarded as haAing lost length of serWce accordingly, and is not entitled to promotion under the act of April 27, 1904(33 Stat., 346), which author- izes the promotion of warrant officers "after six years from date of warrant," until the officer next above him in the list has become due for promotion. (File 17789-20, Dec. 18, 1913; approved by President, Feb. 18, 1914.) Miscellaneous. — A Na\'y regulation pro- ^^Lding that, '" in al cases where commissioned office s of the different corps have the same date of precedence, they shall take rank as follows: 1. Line officers. 2. Medical officers. 3. Pay officers. 4. Engineer officers, "is within the authority conferred upon the Secretary of the Na\^ by Re\dsed Statutes 1547. (21 Op. Atty. Gen., 46.) Qu?ere: Whether the question could be pre- sented in any form for judicial determination, whether the practice of the Naw Department with regard to the rank and precedence of offi- cers conforms to section 1485 of the Re\dsed Statutes? (U. S. v. Alger, 152 U. S., 384, 397.- Sec. 1487. [Quarters.] No staff officer shall, in virtue of his relative rank or precedence, have any additional right to quarters. — (3 Mar., 1871, c. 117, s. 10, V. 16, p. 537.) Amendment to this section was made by act of March 3, 1899, section 7 (30 Stat., 1006), which abolished ■'relative" rank and sub- stituted actual rank therefor. Allowances for officers of the Army are made applicable to officers of the Navv by act of March 3, 1899, section 13 (30 Stat., 1007), which pro^'ided that commissioned officers of the line of the Navy and of the Medical and Pay Corps shall receive the same allowances, except forage, as may be pro- vided by or in pursuance of law for the officers of corresponding rank in the Army. By act of May 13, 1908 (35 Stat., 128), "it was provided that "hereafter all commis) sioned officers of the active list of the Nav'y shall receive the same pay and allowances according to rank and length of service." However, the same act made an exception in the cases of chaplains, by providing that "the pay and allowances of chaplains in the Navy shall in no case exceed that pro- vided for lieutenant commanders." This exception was removed bv act of August 29, 1916 (39 Stat., 581), which reenacted the provision in the act of May 13, 1908, without such exception. The correspond- ing ranks of officers of the Army and officers 695 Sec. 148' Pt.2. REVISED STATUTES. The Navy. of the Navy are prescribed by section 1466, Revised Statutes. The designation of the "Pay ('orps" was changed to '" Supply, Corps" bv act of July il, 1919 (41 Stat., 147). " During the war, in such cases as may be ap- proved l)y the Secretary of the Navy, this appropriation shall be available for the hire of (jiiarters for ollicers attached to sub- marines when they are required to be on shore and (iovernment cjuarters are not available." (Act July 1, 1918, 40 Stat., 728, pro\iso to appropriation for "Pay of the Na\y," wldch apj)ropriation also makes provision ''for hire of quarters for ollicers serAang with troops where there are no public quarters belonging to the Govern- ment, and where there are not sufficient quarters possessed by the United States to accommodate them, or commutation of quarters not to exceed the amount which an oflicer would receive were he not serv- ing with troops and hire of quarters for officers and enlisted men on sea duty at such times as they may be deprived of their quarters on board ship due to 'repairs or other conditions which may render them uninhabitable.") "During the present emergency every com- missioned otlicer of the Army of the United States on duty in the field, or on active duty without the territorial jurisdiction of the United States, who maintains a place of abode for a wife, child, or depend- ent parent, shall be furnished at the place where he maintains such place of abode, without regard to personal quarters fur- nished him elsewhere, the number of rooms prescribed by the Act of March second, nineteen hundred and seven (Thirty- fourth Statutes, page eleAen hundred and sixty-nine), to be occupied by, and only Bo long as occupied by, said vdie, child, or dependent parent; and in case such quarters are not available every such com- missioned officer shall be paid commuta- tion thereof and commutation for heat and light at the rate authorized by law in cases where public quarters are not available; but nothing in this Act shall be so con- strued as to reduce the allowances now authorized by law for any person in the Army." (Act Apr. 16, 1918, 40 Stat., 530.) By naval appropriation act of July 11, 1919 Ml Stat., 140), it was provided that said act of .April 16, 1918, "granting under certain conditions, to every commissioned officer of the Army the right to quarters in kind for their dependents or the author- ized commutation therefor, including the allowances for boat and light, shall here- after be construed to apy)ly to officers of the Navy and Marine Corps only during the period of the war an.i in no event be- yond October 1, 1919." Said enactment of July 11, 1919, was expressly repealed by Joint Resolution of December 24, 1919 (41 Stat., 384), which further provided that officers of the Navy and Marine Corps "shall be entitled to all the rights and benefits under said act of April 16, 1918 (Public, numbered 129), from and after October 1, 1919, and during the present emergency." By act of May 18, 1920 (41 Stat., 602), said allowances under the Act of .\pril 16, 1918, were continued until June 30, 1922. "Hereafter the Secretary of the Navy may determine where and when there are no public (juarters available for persons in the Navy and Marine Corps, or serving there- with, within the meaning of any acts or parts of acts relating to the assignment of quarters or commutation therefor." (Act July], 1918, 40 Stat., 718.) "Hereafter officers temporarily absent on duty in the field shall not lose their right to quarters or commutation thereof at their permanent station while so temporarily absent." (Act Feb. 27, 1893, 27 Stat", 480.) Marine officers are entitled to receive the same allowances as are or may be provided by or in pursuance of law for the officers of like grades in the infantry of the Army. (Sec. 1612, R. S.) Special allowances for maintenance to officers serving under unusual conditions may be paid from the appropriation "Pay, Mis- cellaneous." (Act June 4, 1920, 41 Stat., 813.) The allowance for quarters to officers of the Army is prescribed by act of March 2, 1907 (34 Stat., 1168, 1169), amending act of June 17, 1878, section 9 (20 Stat., 151), to read as follows: "That at all posts and stations where there are public quarters belonging to the United States officers may he fiu*nished with quarters in kind in such public quar- ters, and not elsewhere, by the Quarter- master's Department, as-signing to the offi- cers of each grade, respectively, such num- ber of rooms as is stated in the following table, namely: Second lieutenants, two rooms; first lieutenants, three rooms; cap- tains, foiu" rooms; majors, five rooms; lieutenant colonels, six rooms; colonels, seven rooms; brigadier generals, eight rooms; major generals, nine rooms; lieu- tenant general, ten rooms: Provided further, That at places where there are no public quarters commutation therefor may be paid by the Pay Department to the -officer entitled to the same at a rate not exceeding twelve dollars per month per room. ' ' The same act of March 2, 1907 (34 Stat., 1167), also provided "that hereafter the heat and light actually necessary for the authorized allowance of quarters for officers and en- listed men shall be furnished at the ex- pense of the United States under such regulations as the Secretary of War may prescribe." By act of March 4, 1915 (38 Stat., 1069), it was provided "that hereafter, at places where there are no public quarters available, commutation for the authorized allowance therefor shall be paid to commissioned offi- cers, acting dental surgeons, veterinarians, members of the NiU'se Corps, and pay clerks at the rate of $12 per room per month." (As to the corresponding ranks between officers of the Armv and officers of the Navy, see sec. 1466, R. S.) 696 The Navy. Pt.2. REVISED STATUTES. Sec. 1487. Transportation to be furnished families of officers ordered to make a permanent change of station. (Act May 18, 1920, sec. 12, 41 Stat., 604.) Warrant officers and mates "shall hereafter re- ceive the same commutation for quarters as second lieutenants of the Marine Corps " (act Mar. 3, 1901, 31 Stat., 1107); and "shall receive the same allowances of heat and light as are now or may hereafter be allowed an ensia;n. United States Navy." (Act Aug. 29, 1916, 39 Stat., 578.) Army laws fixing the allowance for quarters are applicable to the Navy under the act of March 3, 1899, section 13 (SO' Stat., 1007), and May 13, 1908 (35 Stat., 127, 128), as amended by act of August 29, 1916 (39 Stat., 581). (24 Comp. Dec, 610.) Under the law all commissioned officers of the Navy are now entitled to the same allowances, except forage, as provided by law for co mmis - sioned officers of the Army under corresponding conditions. (File 26255-471:2, Apr. 13, 1918; see also 15 Comp. Dec, 809, 812, citing 27 Op. Atty. Gen., 261; and see 150 S & A. Memo., 2753.) Comniutation of quarters authorized prior to specific legislation. — In Whittlesey V United States (5 Ct. Cls., 99), it was held that the right of an officer of the Army to comrnuta- tion of fuel and quarters did not, at that time, rest upon any specific legislation; that it sprung out of the general authority of the War Department, and had 1 )een indirectly sanctioned bv Congress from the origin of the Govern- ment. In United States v. Phill)rick (120 U. S., 52), it was held that an order of the Secretary of the Navy, issued ]\Iay 23, 1866 (G. O. No. 75), allowing officers who were not provided with quarters on shore stations a sum equal to one-third of their pay in lieu of all allowances except for mileage or traveling ex- penses under orders, was a valid order under the law as it then stood. (See also Allen v. U. S., 22Ct. Cls.,300.) Authority for quarters does not impli- edly authorize commutation. — Commuta- tion for quarters, fuel, and light not furnished to an officer or enlisted man can not be paid unless authorized by some statute or regulation — that is, the right to commutation does not arise auto- matically but must be based upon some specific provision of law. Accordingly, where an en- listed man was entitled by Army Regulations to quarters at the rate of one room, and by statute was entitled to heat and light for the same, and was not furnished the quarters or heat and light, he is not entitled to commutation in the absence of any statute or authorized regulation pro-x-id- ing for the pa>anent of such commutation. (Smith V U. S., 47 Ct. Cls., 313, holding that the second leader of< the Marine band, who under statutes then in force was entitled to the pay and allowances of a sergeant major, was not entitled to commutation for quaters as there was no law or regulation authorizing such commuta- tion in the case of a sergeant major.) Assignment of quarters. — \\liere there are different classes of public officers entitled to quarters in kind or commutation thereof, the Secretary of the Navy must be the judge of how the interest of the Governrrient may best be served in assigning the available quarters. If civilian jjrofessors at the Naval Academy are allowed quarters in kind or commutation there- of as part of their compensation fixed by the Secretary of the Navy, they would have an equal right thereto Avith conunissioned officers entitled to quarters in kind or commutation thereof; and the Secretary of the Navy may' ex- ercise his discretion in determining whether it is to the best interest of the Government to assign the available quarters at the Naval Aca- demy to the civilian professors or to the com- missioned officers. (File 11168-4, Feb.l, 1917.) The question of assignment of quarters is an administrative one, under the control of the Secretary of the Navy, whose orders, regulations, and decisions thereon are binding upon all per- sons in the naval 8er\dce; and is not a question under the jurisdiction of the Comptroller of the Treasury. The Secretary of the Navy is pre- pared to safeguard to the fullest extent the interests of officers who make payments in accordance with any regulation or order issued by him. (File 26254-2134, Dec. 19, 1916.) Quarters permanentl}^ assigned are not avail- able for temporary assignment during periods that they become vacant in consequence of changes of stations, etc. , and no quartersassigned any officer are available for reassingment dur- ing the temporary absence of the occupants on duty for which the law permits them to be absent without reduction of pay and allowances. (File 26254-2134, Dec. 19, 1916; see also file 26254-2120:1, Nov. 15, 1916. See below under "Officer temporarily absent from station.") The commandant of a navy yard is not auth- orized to assign to other than Marine officers quarters at the navy yard under his command which were constructed for the use of Marine officers attached to said yard, even though such quarters may be temporarily unoccupied by Marine officers, in the absence of an order by the Secretary of the Navy permitting the trans- fer of such quarters for the use of officers of the Navy. In the absence of such order, officers of the Navy for whom no quarters are available are entitled to commutation of quarters. (File 26254-2134, Dec. 19, 1916.) Where quarters at a navy yard are jjerma- nently assigned for the use of officers detailed to specified positionsatsaid yard,andsuch quarters are temporarily vacant by reason of the change of station of said occupants or other similar ex- igency of the service, such temporarily vacant quarters should not be assigned to officers re- porting for duty in the interim, unless such officers occupy positions at the naAy yard which would entitle them to such quarters perma- nently. (File 2743-247, Bu. Nav., 26254-1418, Sec. Nav., Feb. 19, 1914; see also file 26254^21.34, Dec. 19, 1916.) Hire of quarters. — ^The amount to be paid for hire of quarters for officers has no relation whatever to the amount of commutation of quarters to which they may be entitled under certain circumstances. In hiring qxiarters the officer representing the Government is supposed to procure necessary, reasonable, and assuitable quarters as may be obtained, and on the best terms possible, and when thus procured they are to be assigned to the officers entitled to the same in the same manner as quarters owned by 697 Sec. 1487. Pt.2. REVISED STATUTES. The Navy. the Government. (Comp. Dec, Feb. 2, 1917, 192 S. & A. Memo., 4155. Note.— The specific question decided in this case was overruled by Comp. Dec, Apr. 12, 1917, file 26254-2131:7, noted below.) The Secretary of the Navy authorized the commandant of the naA-y yard. Mare Island, to hire quarters for the officers of the third sub- marine division, temporarily, while the vessels of that di^^sion were undergoing repairs which made them uninhabitable, there being no tender on which they could be quartered and no quarters available at the yard. The com- mandant directed the yard pay officer to arrange for the hire of the quarters required, and to pay for them from the appropriation "Contignent, Navy, " stating that the payment in no case should exceed the amount that each officer would be allowed as commutation of quarters according to his rank and for the time that quarters should be occupied. The quarters were hired by the officers concerned, and in no case did the cost thereof exceed the allowance for the number of rooms to which their respec- tive ranks entitled them, nor were the prices paid in excess of those usually charged the gen- eral public for temporary occupancy. The amounts so paid for said quarters were disal- lowed by the Comptroller on the ground that the officers occupying the quarters, being di- rectly and personalh'' interested, could not properly represent the Government but only themselves. (Comp. Dec, Feb. 2, 1917, file 26254-2131:6, 192 S. & A. Memo., 4155.) On reconsideration, the Comptroller allowed the payments for hire of quarters in these cases, but stated : " It is expected that in future when it becomes necessary to hire quarters for officers the Government will be represented in making the contract for hire by some properly desig- nated official other than the officer or officers who are to occupy the hired quarters." (Comp. Dec, Apr. 12, 1917, file 26254-2131:7.) The Army Regulations pro\ide for the rent- ing of quarters where the public buildings are inadequate, but the authority to rent is re- served expressly to the Secretary of War and can not be exercised without his approval. Under the Army Regulations the practice has been for the proper officers to obtain the necessary authority to hire quarters as pre- scribed in the Regulations, and deal directly with the landlord, making disbursements directly to him through the Department of War, thus precluding the making of indi\Tdual contracts of rental for quarters. There is no r^ulation permitting individual discretion or opinion as to the inadequacy of Army quarters. Accordingly, where an officer has quarters assigned him which are inadequate for himself and wife, and rents rooms outside his station without approval of the Secretary of War, he can not recover commutation or hire of quarters. (Moses v. U. S., 41 Ct. Cls., 27.) There is no authority of law for the hire of quarters on shore for naval officers on sea duty, the law presuming that ofiicers on sea duty shall have quarters on board the vessel on which they are serving. This applies in the case of officers ordered to duty on board a submarine tender, where there are no public quarters available for such officers either on board said vessel or on shore. (23 Comp. Dec, 109. But see act July 1, 1918, quoted above.) The annual naval appropriation act pro- vides for '"hire of quarters for officers and enlisted men on sea duty at such times as they may be deprived of their quarters on board ship due to repairs or other conditions which may render them uninhabitable." (See Act June 4, 1920, 41 Stat., 824.) "No public quarters" defined. — lender the act of June 18, 1S7S, section 9, providing with reference to the Army "that at places where there are no public quarters, commutation therefor may be paid by the Pay Department to the officer entitled to the same," etc., hfid that officers are entitled to commutation of quarters at places where the public quarters are "insufficient"' in quantity, "for at such stations, in regard to all officers necessarily excluded from public quarters, there are, with- in the meaning of the proviso, 'no public quarters.' " (16 Op. Atty. Gen., 611.) Under the law commissioned officers of the Navy are entitled to commutation of quarters "at places where there are no public quarters available" (act Mar. 4, 1915, 38 Stat., 1069); and the question whether or not there are "public quarters available," is to be de- termined by the Secretary of the Navy in proper cases. (File 28479-141, Nov. 15, 1915; see act July 1, 1918, quoted above.) Public quarters are any suitable quar- ters provided by the Government. — Any suitable quarters pro^dded by the Government for the use of an officer answers the requirement for "public quarters," though not expressly built for Army officers and an officer assigned to duty as an Indian agent and furnished a suitable building on the reservation for his quarters, without charge, is not entitled to receive commutation for quarters. (U. S. v. Dempsey, 104 Fed. Rep., 197.) Officer occupying tent. — ^An officer de- tached from duty at a station where he was in receipt of commutation of quarters and ordered to duty with the Navy rifle team and furnished a tent for quarters while on such duty, is not entitled to commutation of quarters. The fact that he was put to the expense of providing quarters elsewhere for his family does not affect his right to quarters or commutation therefor while on duty with the Navy rifle team. (Comp. Dec, Aug. 15. 1914. 162 S. & A. Memo., 33360 Officer occupying room as guest. — ^Where an officer of the Medical Corps of the Navy requests to have quarters assigned him at his station, but there are no quarters that can be assigned, and he occupies a room in the Marine Barracks as a guest, with the understanding that he will vacate it whenever required to do so, he can not recover commutation for quar- ters. Commutation is a form of reimbursement; where there was no expense for quarters, as in this case (the occupied quarters being a part of the naval establishment of the United States), there can be no reimbursement in fact and therefore none allowed by law. If the officer had occupied quarters not belonging to the United States and was otherwise entitled to quarters, the fact that he was not charged for tne use of the quarters would not be material 698 The Navy. Pt.2. REVISED STATUTES. Sec. 1487. and would not affect the right and obligation of the parties, but when the quarters occupied belonged to the United States, there is no legal right of recovery. (Odell v. U. S., 38 Ct. Cls., 194.) Officer assigned less than full number of roonis to which entitled. — An officer on duty at a station where public quarters are available is not entitled to commutation of quarters, even though he can not be assigned the full number of rooms to which his rank en- titles him. (Comp. Dec, Oct. 31, 1913, 153 S. & A. Memo., 2854. See also file 9886-16, Oct. 15, 1908, 20032-4, Nov. 27, 1908, and 28479-141, Nov. 15, 1915.) A naval officer whose rank entitles him to four rooms, but who had but one room hir- nished him for quarters, because there were no other public quarters available at his station, can not be allowed commutation for quarters. The theory of commutation is compensation or reimbursement for something paid out. In this case the officer was relieved from ex- pense and did not become entitled to recover the value of quarters not paid for by him. (Ir- win V. U. S., 38 Ct. Cls., 87, 103.) The quarters fitted up at the aeronautic station, Pensacola, Fla., for officers attending the flying school were intended to accommo- date one officer in each room. It is desirable to quarter as many officers at the station as possible in order that they may be available at all times for flying. The hours of flying mist conform to the weather conditions, especially for student a\'iator8. There are not sufficient quarters available to assign each officer at the station the number of rooms authorized for his rank. Under these circumstances, an officer whose rank entitles him to four rooms, and who has been assigned one room at said station, is not entitled to the assignment of three additional rooms or to commutation of quarters if the Secretary of the Navy decides that he should be quartered at the station and that there are quarters available for him at said station. (File 28479-141, Nov. 15, 1915.) In the assignment of quarters to officers at the Naval Academy the determining factor should be whether it is necessary for the proper per- formance of the officer's duties that he reside inside the academy limits. If in the judg- ment of the superintendent this is necessary the officer should be assigned such quarters as may be available; if not necessary and there are no quarters available commensurate with his rank, the officer may be permitted to reside outside the grounds and he will be entitled to commutation of quarters upon cer- tificate of the superintendent that there were no quarters available during the rjeriod. (File 9886-18, Dec. 11, 1908.) Officer attached to vessel of the Navy. — An officer sening on board a vessel of the Navy, under orders, can not acquire any right to commutation of quarters for the reason that Congress has not attached any such allowance to his office for service at sea on board of a ves- sel. (Comp. Dec, Aug. 28, 1917, 198 S. & A. Memo., 4357.) When an officer of the Navy is on receiving- ship duty, and the ship acting as recei\'ing ship is detached from such duty, no other ship being designated in its place, if the situation is to be permanent in character, the officer is in a shore-duty status and becomes entitled, in the event that quarters in kind are not furnished him, to comnmtation of quarters; but if such situation is only temporary, the officer remains in a sea-duty status and is not entitled to commutation of quarters but must provide his own quarters. (Comp. Dec, July 3, 1917, 197 S. & A. Memo., 4300.) A retired officer was ordered to active duty in time of war as commanding officer of a re- ceiving ship. Under the regulations then in force governing the receiving-ship system, ships in commission were designated as receiv- ing ships, retaining their own commanding officer as such ships in commission and in ad- dition thereto having a commanding officer in their added fimction as receiving ships. ^ There was a ship in commission actually designated as receiving ship at the station in question. The retired officer did not actually assume command of the receiving ship as such, but served on shore in a building used for such purpose, where he performed the duties^ of commanding officer of a nominal receiving ship. His orders to duty as cornmanding officer of a recei\'ing ship assigned him to sea duty and did not entitle him to commutation of quarters, even though said orders referred to this duty as "shore duty." However, upon the detachment of the ship which had been designated as receiving ship, and during the period thereafter while there was no ship actually designated as receiving ship at said station, the officer may be allowed commuta- tion of quarters, in view of the emergency con- ditions which existed, although it would seem that his orders to duty as commanding officer of the receiving ship were in effect canceled by the detachment of the ship, and new orders not having thereafter been issued to him, the duties he thereafter performed as commanding officer of a nominal receiving ship were not in obedience to any orders. (Comp. Dec, Aug. 28, 1917, 198 S. & A. Memo., 4357.) Service of naval officers on board vessels is "duty in the field" within the meaning of the act of April 16, 1918 (40 Stat., 530, quoted above), relating to commutation of quarters for officers of the Army, which act applies to the Navy by virtue of section 13 of the Navy personnel act of March 3, 1899 (30 Stat., 1007), and the act of August 29, 1916 (39 Stat., 581). Under these laws all commissioned officers of the Navy are now entitled to the same allow- ances, except forage, as provided by law for commissioned officers of the Army, under corresponding conditions. (File 26255-471: 2, Apr. 13, 1918, citing 12 Comp. Dec, 291, 293, and Ex parte Gerlach, 247 Fed. Rep., 616.) Commissioned officers of the Navy on the active list on duty on vessels of the Navy are "on duty in the field" and possess the same right to commutation of quarters under the act of April 16, 1918 (above quoted), as is conferred by said act upon officers of the Army. (24 Comp. Dec, 610.) For other cases, see below, "Officer tempo- rarily absent from station," and see above, "Hire of quarters." 54641°— 22- -45 699 Sec. 1487. Pt. 2. REVISED STATUTES. The Navy. Ofllcer awaiting orders. — An officer of the Army "unassigned" and "awaiting orders" at headquarters, who makes no application for fuel ana quarters, and who does not show at the trial of his claim in court that no quarters were to be had at headquarters, is not entitled to commutation therefor; but upon sho%ving that there were no quarters at headquarters, he is entitled to commutation. (Crosby v. U. S., 13Ct. Cls., 110.) An officer of the Army who pursuant to orders reportesary for Congress to specify all four requirements for promotion in the NaA^y as it has done for more than 50 years. A diseased brain, although properly classified as physical unfitness, would seem necessarily to be accom- panied by lack of the mental, moral, or profes- sional qualifications for promotion; but it is en- tirely possible for an officer to be mentally, morally, or professionally unfitted for promo- tion without disease of the brain. In short, as has heretof(n-e been remarked by the Judge Ad- vocate General in a similar connection (file 26260-1319, Jime 29, 1911), "any discussion of the question whether an officer can be morally imfit for promotion, without his mental, pro- fessional or physical qualifications being af- fected, however interesting it may be, becomes purely idle and academic when we remember that Congress has itself, by express language in the act of April 21, 1864 (sec. 1496, R. S.), pro- vided that no officer shall be promoted to a higher grade until his moral, as well as his men- tal, professional and physical fitness, shall have been established to the satisfaction of the board of examining officers." (File 26521-179, Feb. 19, 1917.) Navy department's precedents. — ^The department's precedents in which the ques- tion of mental, moral, or professional fitness is involved may be cited quite as much to indicate the somewhat varying interpretation of what constitutes mental disqualifications as to offer matter fi-om which a clear definition thereof may be deduced. Incidentally, they confirm the more easily marked distinction between professional and moral disqualifications. It is believed that it will be very rare when accord- ing to the department's \-iews a case will arise in which mental unfitness w^ould not be coupled M-ith professional, moral, or physical disquali- fications. (File 26521-179, Feb. 19, 1917.) The following precedents are quoted from the Secretary of the Na\y's letter of February 19, 1917, to the Naval Examining Board, Navy Yard, Washington, D. C. (file 26521-179): MENTAL QUALIFICATIONS. (a) Commodore WilUam K, Mayo, examined for promotion, February 12, 1886. Board re- ported as follows: "The candidate having failed to establish his mental fitness in all respects, the board can not give the certificate reqiured by section 1504 R. S., that he has the mental, moral, and professional qualifications to perform efficiently all the duties, both at sea and on shore, of the next higher grade, and therefore we do not recommend him for pro- motion." This finding was adhered to by the board after further proceedings. Commodore Mayo's reports on fitness con- tained among other things the following un- favorable entries: "The general impression seems to be that he is a difficult person to get along harmoniously with." "While, in my opinion, possessinp; the requisite qualifications, I am afraid, judging from my personal experi- ence with him, that nis temperament and dispo- sition are such as would miUtate against the chances of his efficiency and usefulness in any position." "His mental faculties are such as to qualify him for promotion but, in my opinion, his judgment is apt to be warped by his sus- picionsand prejudices." As to the general reputation of the candidate, "it is that of a man who, by his suspicions and prejudices makes it exceedingly un]>lea.sant for those who have the misfortune to serve with him." "In my judg- ment Commodore Mayo is so peculiarly consti- tuted that his judgment is often so warped by his strong prejudices and suspicions as to unfit him for the calm consideration and solution of important questions that may come before him. Holding this opinion I can not conscientiously think him a fit oflicer to perform all his duties at sea in a higher grade." Other matters of record related to "rudeness in speech," "dis- courtesy of demeanor," "severity and harsh- ness," etc. Fifteen specific cases of complaint against Commodore Mayo were given thorough consideration by the board . Referring to these cases the board stated in its first report: "Any one of the foregoing cases, taken by itself, might be considered as of minor impor- tance and as exhibiting on the part of Commo- dore Mayo a mere error of judgment, which all men are, at one time or another, liable to fall into. But, aggregated, they indicate unmis- takably a habit and condition of mind the mani- festation of which, in a commanding officer, is demoralizing in its tendency and subversive of discipline. If, while in command of a shore station, and under the restraining influences of the Navy Department, Commodore Mayo has displayed such mental peculiarities as are shown by the evidence, the board is forced to the conclusion that he ought not to be intrusted with the duties and responstbili ties inseparable from a command in foreign waters. ' ' In its second report the board stated: ' ' In the several citations made the candidate claims that he was acting in the interest of dis- cipline — while the board considers the major- ity of those acts to be subversive of discipline. And it is this failure on the part of the candi- date, even after a deliberate "view of his case — assisted as he was by able counsel and expert ad\ice — ^to apprehend the true direction to which the whole mass of the documentary evi- dence points— that furnishes the strongest cor- roborative evidence of the candidate's imper- fect ideas in regard to discipline, and adds to the proof of his incapacity to exercise at all times the discretion looked for in a comman- dant." No action was taken by the President upon the record of the board's finding, as the case was disposed of by the retirement of Commo- dore Mayo upon his own application after 40 years' ser^ice, under section 1443, Re\ised Statutes. (6) Asst. Surg. Frederick Joaquin Barbosa Cordeiro, examined for promotion, July 23, 1887. Board reported as follows: "The board, after carefully considering all the evidence in the case of the candidate, in- cluding his single testimonial, the records on 714 The Navy. Ft. 2. REVISED STATUTES. Sec. 1496. file at the Navy Department, the interroga- tories addressed to various naval officers and the answers thereto, and the letter and state- ment of the candidate, all of wliich, including copies of the records on file at the department, are hereunto appended, concluded the exam- ination of the candidate, and decided that the mental fitness of the candidate to perform all his duties, at sea and on shore, has not been established to the satisfaction of the board; therefore we certify that Asst. Surg. Fi'ederick Joaquin Barbosa Cordeiro, United States Navy, does not possess the mental qualifications to perform efficiently, at sea and on shore, all the duties of the gi'ade to which he seeks promotion. "The board are led to the above conclusion by the e^idence hereunto appended, which establishes clearly to their minds the fact that Asst. Surg. Frederick Joaquin Barbosa Cor- deiro, United States NaAy% has an insubordi- nate disposition and is therefore lacking in one of the most essential qualifications of an officer of the NavJ^ In view of this fact we do not recommend him for promotion." The board reassembled November 10, 1887, pursuant to orders, and fm-ther examined the candidate. December 22, 1887, the board completed its proceedings and reported that it "Decided that the candidate has exhibited professional qualifications as well as literary and scientific attainments of more than the average excellence and that his moral fitness has also been establislied to the satisfaction of the boai'd, but that his mental fitness for pro- motion has not been so estalilished. "After carefully reviewing the subject of the mental fitness of the candidate for pro- motion the board see no reason to change their opinion as expressed in their report made July 23, 1887. The board arrived at this conclu- sion for the reasons that the candidate has failed to present any favoral^Ie testimony or letter from any senior medical officer with whom he has served since he has been in the service, that two of these officers have pronounced him unfit for promotion, that the records on file at the Navy Depaitment contain opinions from the Singeon General and from Rear Admiral L. A. Kimberly, United States Navy, of the same nature, and that the service would be benefited by his resignation, and that he has been severely reprimanded by the Secretary of the Navy. The board _ also consider that the answers to 10 of the interrogatories are unfavor- able to the candidate as contributing to the evidence exhibiting his mental tendency as insubordinate and unduly self-asserting, that four- — at least are negative, and that the rest, while in his favor, are chiefly from officers with whom his association on duty has been indirect, seven of them having had no association with him on duty at all. "The board do not consider the testimony sufficient to prove any defect in the moral character of the candidate, although his action in showing the Medical Journal ta Ensign Dent without first obtaining the consent of Surgeon Kidder, his statement as to the time he spent before the board of investigation at the Boston Na\y Yard, 'about one minute,' and his esti- mate of the time necessary to obtain a medical officer's presence at the dispensary at the Boston Navy Yard when the latter was on board the receiving ship at that place, 'six minutes,' both of wMch periods are manifestly under- estimates and his accusation, in his defense, against Lieut. Nazro of being influenced by unworthy motives in answering the interroga- tories as he did, would seem to indicate a feeble moral sense, Ixit the board prefer to regard these points as additional evidence of his mental unfitness for promotion. "The candidate seems to have been on terms of hostility with two out of three medical officers to whom he has been subordinate since hia entry into the service. The testimony in these cases, although somewhat conflicting in some respects, nevertheless leads the board to the opinion that he has been guilty of insubor- dination and disrespect, and the board are well satisfied that harmony and concert of action, so desirable for the benefit of the service, did not exist in the medical departments of the Boston Navy Yard and of the U. S. S. Pow- hatan, owing to the mental' inability of the candidate to fully appreciate his position as a junior officer and his disregard of the opinions of his seniors. "The full tenor of his defensive argument is to the effect that he has been misrepresented in eveiy instance, and that in every instance he has been the victim of unjust animus, prej- udice, or absolute falsehood. " In examining the testimony of those officers who have reported against either his mental or professional fitness, the board have been unable to detect any animus of an unjust nature against him, and beUeve that such animus existed only in the imagination of the candidate. These animadversions in his defense in the opinion of the board are still further evidence of the disqualifying condition of the mental constitution of the candidate. "The plea of ignorance of the customs of the service, on the part of the candidate is insufficient to account for all the trouble he has given those in authority over him, since all young medical officers, uijon entering the service, must have labored under the same disadvantage, and yet it is a very uncommon tiling to hear of such curious complaints against them as those made against the candidate. "The candidate, in the opinion of the board, although possessing a high grade of information and accomplishment as a physician is unques- tionably too vain of his attainments, and is unwilling to give others credit for whatever proficiency they may possess. This defect in his mental constitution in civil life might be of small moment, but the board considers it a grave defect in one belonging to the service, since it could only result in destruction of harmony and scandalous conflict in a depart- ment in which all personal considerations should subordinate themselves to the endeavor to do all things for the benefit of the sick and for the best interests of the service. "In conclusion, the board do not believe that the interests of the service would be subserved, by the promotion of the candiadate, and there- fore they do not recommend Asst. Surg. Fred- erick Joaquin Barbosa Cordeiro, United States Navy, for promotion." 54G41''— 22- ■46 716 Sec. 1496. Pt.2. REVISED STATUTES. The Navy. The President's action in this case, June 15, ISSS, was as follows: ''A case is here presented of a medical officer, concededly of unusual skill and attainments, held unlit for promotion for no established neglect of duty or anythinji; else more substan- tial (so far as facts are developed), than in- stances of disrespect or insubordination which are almost frivolous. This officer is not the morft agreeable man in the Navy in his inter- course ^vith his superiors, but he should not be denied promotion for that; he has probably very high ideas of his ability and perhaps is dogmatic; but these things, while disagreeable, may exist in a man to whom it would be very unjust to deny promotion. "Besides all this, I am perfectly satisfied that everj^tliing stated in the foregoing abstracts that has caused unliappiness to the applicant's superior officers miijht have been avoided if they themselves had exercised a little tolerance and forbearance. "I can not approve the findings of the board in this case. ' ' (c) Pay Insp. John H. Stevenson, examined for promotion to pay director. Board reported as follows: ' ' We are satisfied as to the professional abili- ties of the candidate. His methods of business are shown by the e\ddence to have been loose, reckless, regardless of law, and defiant of orders, but we believe his conduct is not sho\vn to have been influenced by a desire for personal profit, but that, from mental peculiarities or tempem- ment, his moral sense of the obligations of law, orders, and regulations is so obtunded as to render him imfit to conduct the important duties which pertain to the grade in the Navy to which he is a candidate for promotion. In this sense we consider him, as stated below, morally unfit for promotion. We therefore decide that the professional fitness of the can- didate to perform the duties of a naval officer at sea and on shore in the next higher grade has been established, but not the mental and moral fitness, and we therefore do not recommend him for promotion." The proceedings and finding of the examining board m the above case of Pay Insp. Stevenson were approved by the President September 25, 1893. (lished, this despite the candidate's excellent reports of fitness." Finding ap- proved by the President. (o) Boatswain Edward Allen, examined October 28, 1908; found morally and profession- ally but not mentally qualified, owing to his lack of knowledge of the English language, orthography, punctuation, etc., and because a perusal of his papers shows a marked degree of illiteracy. The record was returned to the board with the following remarks: "After careful consideration of the matter the record of proceedings is retmiied to the boiird with the information that the department regards the above-mentioned disqualifications as constituting part of the professional examina- tion, and not as exhibiting mental deficiency." On revision the board found the candidate morally and mentally, but not professionally, qualified. Finding approved by the President. Consideration by board of court-martial proceedings. — As early as 1897 the specific question [right of examining board to consider court-martial proceedings against candidate] was raised and decided by the department. In that case an examining board treated "as closed " certain matters brought to its atten- tion for wiiich the candidate had been tried by court-martial. The decision in that case em- bodied the following statement: "The fact that a case has been finally acted upon by the liighest authority, or that no action what- ever has been taken, does not close that por- tion of the officer's record to wliich it relates in such a manner as to relieve an examining board from the responsibility of scrutinizing it. Wliere an officer's record is found not good, it seems * * * then to become the espe- cial duty of the board to make a thorough and exhaustive examination." (File 5878-97.) The same question has been judicially decided in accordance with the Navy Department's precedents and practice, ^^'ith reference to the authority of an examining board to consider the proceedings of a court-martial and other facts shown by the officer's record bearing upon his moral fitness for promotion, the court iu the case of Davis v. United States (24 Ct. (Jls., 442) said: "The board was charged with the duty of examining into hia mental, moral, and professional qualifications for advancement. WhaA better evidence could it have of these qualifications than the candidate's actual career in his then grade? It was natural and proper for the board to look into his record. If a good officer he would proudly rely upon it and demand its examination as a right." In 1911 the question was again considered by the department (file 26260-1392, 26260-697, June 29, 1911, p. 17), and it was held: "The question of an officer's amenability to trial by court-martial for acts affecting his moral fitness can not * * * have any bearing upon the question now under consideration. For should the officer be so tried and convicted, or even acquitted, by court-martial, an examining board would still have the duty cast upon it by express provi- sions of law, of examining iuXa the facts and outcome of such trial, in order to determine for itself the effect, if any, that should be given thereto with reference to the officer's qualifi- cations for promotion in the Navy." Accord- ingly, when an officer is examined for promo- tion, all papers relating to his service since the last examination whereby he was promoted, in- cluding the complete record of the officer's trial by court-martial, where he has been so tried, are sent to the examining board by the department, and it is the duty of the board to review all the papers so furnished and deter- mine whether or not in the members' own minds the ofiicer has the mental, moril, and professional qualifications for promotion to the next higher grade In a case v/here the officer has been tried by court-martial, were the examining board bound by the result at which the court had arrived, it would be unnec- essary to forward the entire record of the trial, as merely the findings of the court would be suf- ficient. But the law specifically empowers the examining board "to examine into all matters on the files and records of the Navy Department" relating to the service of the officer since the last examination whereby he was promoted (sec. 1499, R. S., as amended), and requires that the whole record and finding of the board, together with "any matter on the files and records of the Navy Department, toucMng each case," shall be presented to the President for his approval or disapproval of the finding (sec. 1502, R. S.). It follows that, regardless of the finding which may have been reached by a court-martial, the entire record and all evidence which it contains, concerning the service of the candidate since the last examination whereby he was promoted, must be considered by the board, and that no member is justified in recommending the candidate's promotion unless, in his own opinion, the officer is qualified therefor. (File 26260-3342 : 1, Mar. 27, 1916.) It is the province of the board to find the candidate either morally qualified or not mor- ally qualified for promotion; the board's find- ing must, however, under the law, express the Y18 The Navy. Pt. 2. REVISED STATUTES. Sec. 1496. opinion which the members themselves enter- tain, and a finding which states that the candi- date is morally qualified for promotion, not because the board so believes but because the board feels itself bound by the opinion which it attributes to others, is in law no finding at all. (File 26260-3342 : 1, Apr. 7, 1916.) In its first action in this case the board stated in effect that "no matter what its personal feelings may be," it found the candidate mor- ally qualified for promotion because the mem- bers of a court-martial had acquitted him of the serious offenses with which he had been charged , and the board "has not the power to ques- tion the findings of said board." The depart- ment returned the record, instructing the board that no "member is justified in recom- mending the candidate's promotion unless, in his own opinion, the officer is qualified there- for;" that the Navy Regulations specifically pro^dde that "it shall be held obligatory upon any member of the board to decline to recom- mend the promotion of an officer until he is satisfied of the officer's entire mental, moral, and professional fitness for promotion"; that the so-called acquittal of the court-martial in tliis case had been disapproved and thereby set aside and nullified by the convening author- ity; and that the board has not only the "pow- er " but the duty of making a full examination of the facts in the case and determining for itself whether the matters disclosed by the record render the candidate qualified, or not qualified, for promotion." The board disre- garded the above instructions and in its re- \-ised finding stated: "The members of tliis board, who are subordinate in rank to the court who acquitted tliis candidate, feel from their training and association with commissioned officers, that the members of the court must have been influenced by extenuating cir- cumstances as well as by the testimony that appears in the record of the court * * *. The board is of the opinion that the court- martial board, being commissioned officers of high rank under oath, upon their honor, ac- quitted the candidate, and in \dew of the above accepts the findings of the court." The court here makes the same error as previously. The department expects, and the law contem- plates, that the members of an examining board shall be competent to judge for them- selves whether a candidate is qualified for promotion, and to assume the responsibility placed upon them by law of so doing. It would be useless to convene such boards if they are merely to reflect the opinion which they think has been entertained by others. The board is required to make an independent investigation of the evidence before it, in order to determine the candidate's fitness for promo- tion, and if the evidence before the board is not sufficient, the board is by law given authority to obtain additional evidence. Tlie board should know that the members of a court-mar- tial are sworn to try each case before them "according to the evidence which shall come before the court," and could not lawfully make a decision based upon circumstances not appearing in the record. Also that courts-mar- tial can not make a finding of guilty unless the evidence establishes the guilt of the accused beyond a reasonable doubt, while on the other hand, members of an examining board are not required to be satisfied beyond a reasonable doubt that a candidate is not qualified for pro- motion, but instead are forbidden to recom- mend any officer for promotion "as to whose fitness a doubt exists. ' ' In other words, before a court-martial every doubt must be resolved in favor of the accused, while before an examin- ing board such doubts, if any, must be resolved against the candidate, and the existence even of a doubt as to his fitness requires that he be not recommended for promotion. For this reason the finding of a court-martial, even if approved, would not be conclusive upon an examining board. (File 26260-3342 : 1, Apr. 7, 1916.) The matter of determining an officer's moral fitness for promotion is not analogous to the question of determining whether he should be brought to trial by court-martial for alleged offenses. On the contrary, an examing board is required to report the opinion of its indi^ddual members concerning the fitness of a candidate for promotion, regardless of whether unfavor- able matters upon the candidate's record have been acted upon by a comt-martial or not, and regardless of the finding reached by the court- martial if one has been convened. (File 26260-3628:1, Aug. 25, 1916.) Consideration of misconduct by candi- date which is not within the reach of a court-martial. — Msconduct in private life may be the subject of trial by court-maitial and the department endeavors to take appropriate disciplinary action whenever such cases are brought to its attention. However under ordi- nary circumstances the domestic relations of an officer, unless there has been misconduct on his part reflecting discreditably on the naval serv- ice and justif>-ing a recourse to disciplinary proceedings under the Articles for the Govern- ment of the Navj', are not regarded as matters falling within the jurisdiction of the Na-vy Department, but are properly under the juris- diction of ci^-il couj'ts. Instances, however, may aiise where misconduct in pri^'ate life would not be within the reach of law or discip- line to the extent of court-martial proceedings. Such matters are nevertheless subject to inves- tigation by an examining board in determining an officer's fitness for promotion, where they have occurred since the last examination whereby he was promoted or where they have not previously been inquired into and decided upon, or where they constitute a " fact continu- ing" affecting his present fitness for promo- tion. (File 26521-179, Feb. 19, 1917.) Consideration of matters under investi- gation by civil courts. — The members of an examining board are forbidden to recommend any officer for promotion "as to whose fitness a doiibt exists." The board has the duty devolved upon it of making a thorough investigation into the matters which are the subject of correspond- ence referred to it by the department, exam- ining witnesses with reference thereto if neces- sary, and of determining as the result of such investigation, together with any other matter.-? of an unfavorable character which may be upo". the candidate's record, whether or not the can- didate is morally qualified for promotion; and 719 Sec, 1496. PL 2. REVISED STATUTES. The Navy. the board is not anthnrizod to delay its pro- cecKliugs pending a dotei'niination of litigation in the civil courts invoking the relations be- tAVoeu the candidate and his wife. It is pos- eilde that a final adjudication upon the merits of the controversy may never be reached in the civil proceedings, and even if it were this Would not relieve the board of its duty to make an independent in\-estigation of the matters at issue in so far as they may affect the moral fit- ness of the candidate for promotion, (l^'ile 26260-3628:1. Aug. 25, 1916.) Duty of board to -weigh evidence without requesting department's instructions. — " With regard to tlie request contained in your letter above-mentioned, that the board be in- structed as to whether or not it should consider the report of the court of inquirj- referred to, the report of Paymaster Allen, dated Novem- ber 22. 1888, and the action of the department relative thereto, as a final disposition of the matters, you are informed that it is for the board to examine and determine as to whether or not these reports have been finally acted upon by the department; if acted upon, what weight should be given to the department's action; and if not acted upon, what weight should be given to them in the absence of such action bv the department." CFile 1966-93, May 16, 1893.) "The determination of the question of the fitness of an officer for promotion is vested by law in the examining board and in the Presi- dent, and it is the duty of the examining boai'd unembaiTassed by instructions from this de- partment, to give such consideration to all facts occurring since the examination of the candidate for his last promotion as well as to all such as appear upon the file and records of the department, as will enable it to reach a just conclusion." (File 1966-93, May 16, 1893.) An examining board having been duly ap- pointed and organized in pursuance of law, it becomes its duty, in accordance with the re- quii'ements of section 1496 of the Revised Statutes, to ascertain and report upon the mental, moral, and professional fitness of the candidate for promotion. As sections 1499 and 1502 of the Revised Statutes empower the board to examine any matter on the files and records of the Na\'y Department touching each case which may in the opinion of the board be necessary to assist it in making up its judgment relative to the case of any officer under consid- eration, and it being understood that all such matters upon the files and records of the de- partment are placed at the disposal of the board, it is deemed proper that the board should ]>e left to the performance of its duties untrammeled by instructions from the depart- ment. (File 1966-93, May 16, 1893.) Burden of proof. — The following is quoted from "General Instructions" formulated by the Secretary of the Navy on December 14, 1894, concerning proof of moral fitness, as a result of questions presented in the case of Lieut. Com- mander Frederick W. Crocker (see also file 26260-1392, June 29, 1911): "6. The lieutenant commander whose case ia now being considered, having arrived at the point where he is entitled to promotion to the next higher grade, under conditions fixed by the statute, stands in the position of an applicant for an a))puiulnient. lie is no longer to be a lieutenant commander, but is an ajtplicant for appointment to the position of a commander in the Navy of the United States, an office of great responsibility. He is to be appointed by the President and confirmed by the Senate, pro- vided heiscompetentand worthy. Theburden of proof is upon him to show that he complies with these conditions. He is the actor in these proceedings, which are instituted simply to ascertain the facts upon which the President shall act in sending his name to the Senate, and by which that body is to be guided in confinn- ing or refusing to confinn him. "7. Any reasonable doubt that may arise out of the evidence offered is, in all cases of this kind, to be resolved in favor of the Government and against the applicant. Should the appli- cant fail of appointment under these rules, the law directs that he is to be discharged from the service, unless circumstances exist which authorize his retirement. If the refusal to appoint were intended as a punishment, the law would not contemplate payment of a year's or any other salary on his discharge. Such discharge simply means that the Government no longer needs the applicant's services. "8. It follows, therefore, from the nature of these proceedings, that the statutes of limita- tion, quoted by counsel, have no application whatever. Everything that has occurred dur- ing the applicant's term of office as lieutenant commander, or at any other time, inquiry into which is not prohibited by the law and regula- tions [see sec. 1499, R. S., as amended], may be adduced for the purpose of showing that he is not competent, or, if competent, is not worthy of the appointment to the office of commander which he now seeks. It can not be contended that because the Government has not instituted proceedings by court-martial it has, therefore, been negligent in the matter of defending itself against a claim of a candidate to serve it, and is, by reason of its own neglect, compelled to appoint an unworthy or incompetent person to office. The Government has a right, when an inquiry of this nature is instituted, to satisfy itself of the fitness of the candidate for promo- tion, to introduce in evidence records made in accordance with the regulations lawfully pre- scribed by the Secretary of the Navy, and any other testimony that may be necessary to sat- isfy itself of the fitness or unfitness of candidates for office. "9. The department has, however, decided that the members of an examining board should reach their conclusions respecting the mental and moral qualifications of the candidate upon the evidence of record only^ independently of any personal knowledge which they may have on the subject. Any facts within the personal knowledge of members of the board, important to be considered, should be made matter of record and the candidate given an opportunity to meet them. Paragraph 8, article 1715, United States Navy Regulations, is accordingly amended so as to read as follows: " 'The onus of establishing professional fit- ness shall be held to rest entirely upon the officer under examination. The mental and moral fitness of the candidate shall be assumed 720 The Navy. Pt. 2. REVISED STATUTES. Sec. 1497. unless a doubt shall be raised on either head in the mind of any member of the board, from the answers contained in any of the interrogatories or reports on fitness, from the general reputation of the candidate, or from other sources of evi- dence of record. It shall be held obligatory upon any member of the board to decline to recommend the promotion of an officer until he be satisfied of the officer's entire mental, moral, and profossionul fitness for promotion. The board, while careful not to do injustice to an officer regarding whom there is any doubt, shall take equal care to safeguard the honor and dignity of the service, recommending no officer for promotion as to whose fitness a doubt ex- exists. ' ' ' (This regulation is now embodied in Naval Courts and Boards, 1917, sees. 620, 643.) Finding of majority of board governs. — The board may find an oflicer qualified for promotion by a majority, and one member (a minority) may find him not so qualified, and such a majority finding, when approved, is valid. (File 26260-1244, Apr. 14, 1911.) In case of dissent the record must show those of the members who concurred in, and those who dissented from, the opinion of the board, with the reasons for dissent. (Sec. 650, Naval Courts and Boards.) This section not applicable to temporary promotions. — Sections 1493 and 1496, Revised Statutes, clearly relate to promotions in the permanent Na\'\'. The act of May 22, 1917 (40 Stat., 84), authorizes temporary promotions to all grades in the Navy above the lowest grades, and provides (sec. 8) that all temporary promotions ' " shall continue in force until other- wise directed by the President * * *. " Said act however makes no express provision as to the manner in which such temporary promotions shall be made. On the other hand, said act in several places refers to existing law with reference to permanent promotions. The fact that the act of May 22, 1917, makes repeated references to the "permanent" Navy or Marine Corps, that it also makes repeated references to existing law in connection vriih permanent promotions, that it says nothing about existing law with reference to temporary promotions, and that it expressly makes such temporary promotions revocable by the President at any time, leads irresistibly to the conclusion that the pro\dsions of existing law with reference to promotions in the permanent Navy are not controlling as to the temporary promotions provided for in said act, but that such tempo- rary promotions may be made diuing the war in accordance with such rules and regulations as the President may prescribe. Accordingly held, that an officer before being temporarily promoted is not required by law to pass any examination either as to his mental, moral, professional, or physical qualifications; but that it is within the discretion of the President to determine what examinations if any prelimin- ary to temporary promotions are advisable for the proper protection of the interests of the Government. (File 28687-22, June 14, 1917, citing Taylor v. U. S., 38 Ct. Cls., 155, noted under sec. 1370, R. S. Compare 25 Op. Atty. Gen., 341, noted under sec. 1370, R. S., "Ap- plication of statutory requirements to appoint- ments under subsequent laws. " See also 31 Op. Atty. Gen., 173, as to provisional advance- ments in rank in the Naval Reserve Force.) The act of May 22, 1917 (40 Stat., 84), clearly indicates that it did not contemplate the pass- ing of statutory examinations prior to tem- porary promotions authorized therein, for it expressly requires examination of all officers prior to permanent promotion, notwithstanding that they have in the meantime been tem- porarily promoted to higher grades; and it would be an absurdity in the case, for example, of an officer holding a permanent commission as lieutenant and temporarily promoted during the war to the grades of lieutenant commander and commander, and who had been required to pass the statutory examinations prior to such temporary promotions, to require him there- after to pass the prescril^ed examinations for permanent promotion to the grade of lieutenant commander when he became due for such permanent promotion. (File 28687-22, June 14, 1917.) Sec. 1497. [Promotion to rear admiral in time of peace. Superseded.] This section provided as follows: "Sec. 1497. In time of peace no person shall be promoted from the list of commodores to the grade of rear-admiral, on the active list, until his mental, moral, and professional fitness to perform all his duties at sea has been established as provided in the preceding section." — (16 Julv, 1862, c. 183, s. 7, v. 12, p. .584. Amended by 21 April, 1864, c. 63, v. 13, p. 53.) It was superseded by the act of March 3, 1899. section 7 (30 Stat., 1005), which abolished the grade of commodore on the active list of the Nav>- (see note to sec. 1362, R. S.). Thereafter promotions to the grade of rear admiral were made by seniority from the grade of captain (see sec. 1458, il. S.), subject to the examinations required by sections 1493 and 1496, Re\ised Statutes. New provisions for promotion to the grade of rear admiral, by selection from the grade of captain, were contained in the act of August 20. 1916 (39 Stat., 578), which said act further pro\dded (39 Stat., 579), that officers selected for promotion thereunder " shall prior to promotion be subject in all respects to the ex- aminations prescribed by law for officers pro- moted by seniority. " Selection of rear admirals during war was provided for by section 1365, Re-\'ised Statutes. Selection by the President of officers to command squadrons with the rank and title of " flag-officer " is provided for by sections 1434, 1463, and 1464, Revised Statutes. The act of May 22, 1917 (40 Stat., 89), provided that said sections of the Revised Statutes were not to be construed as amended or repealed by the pro- visions of that act authorizing the designation of officers to command fleets and subdivisions thereof with the rank of admiral and vice admi- ral while so serving. The act last cited further pro\dded that in time of war selections under the provisions thereof were to be made from the grades of rear admiral or captain on the active list, and in time of peace from among the rear admirals on the active list. The rank of " flag- officer" under section l-i34. Revised Statutes, is now rear admiral (see note to said section). 721 Sec. 1499. PL 2. REVISED STATUTES. The Navy. Sec. 1498. [Examining boards.] Such examining hoard shall consist of not less than three olhcers, senior in rank to the officer to be examined. — (21 April, 18G4, c. 63, s. 2, v. 13, p. 53.) Provisions of this section held manda- tory. — ^^'he^e a naval examining board con- aisted of three ofiicers. oneof wliom was not senior in rank to the oUicor to be examined, held iha.t the proceedings of said board should be disap- proved aa fatally defective. The law being mandatory in its tenns, all the members of the board must ])e senior to the officer imder exam- ination before them. (File 2G260-1244, Apr. 14, 1911.) Sec. 1499. [Powers of.] Said board shall have power to take testimony and to examine all matter on the files and records of the Navy Department relating to any officer whose case may be considered by them. The mtnesses, when present, shall be sworn by the president of the board. — (21 April, 1864, c. 63, s. 1, V. 13, p. 53.) Amendment to this section was made by act of June 18, 1878 (20 Stat., 1G5), which pro- vided "that hereafter in the examination of officers in the Na\^ for promotion no fact which occiured prior to the last examina- tion of the candidate whereby he was pro- moted, which has been enqiiired into and decided upon, shall be again enquired into, but such previous examination, if ap- proved, shall be conclusive, unless such fact continuing shows the unfitness of the officer to perform all his duties at sea." Refusal of Navy Department to furnish board with records prior to last examina- tion of candidate. — As has been judicially stated (Da^is v. U. S., 24 Ct. Cls., 442), the above section of the Revised Statutes "opened up the whole past life of an applicant for pro- motion, and made him liable at each step in his career to a fi-esh investigation, long after the event, of charges before ' enquired into and decided upon.' To remedy any injustice this may have caused, probaljly, the statute of June 18, 1878, was passed. This sfcitute places a bar in the way of a new examination into old accu- sations or facts, and starts the officer in his higher grade with a clean record, unless the fact be a continuing one, showing the candi- date's imfitness to 'perfonn all his duties at sea.' " Again, in the same case (Davis v. U. S., 24 Ct. Cls., 445), it was stated: "The limit placed by Congress upon the scope of inquirj' was that past issues, old charges, once enquired into by competent authority, decided upon and the decision approved, should not be reopened. When promoted to the gi'ade of pay inspector Davis's record as paymaster had been investi- gated by an examming board and passed upon. The finding had been approved. The statute holds that decision to be final; it closes forever, so far as examining boards are concerned, one period of the officer's professional career, imless a 'fact continuing shows the unfitness of the officer to perfomi all his duties at sea.' " The record of the candidate in this case prior to his last promotion does not contain any matter which the board is authorized to inquii'e into by the act of June 18, 1878, and the Navy Regu- lations, consequently the department does not deem it advisable to furnish such record to the board as requested by the president thereof. (File 26521-173, Jan. 25. 1917.) Upon the examination of officers for promo- tion the law in explicit language prohibits inquiry into any fact which occurred prior to the last examination whereby the candidate was promoted, which has already been inquired into and decided upon, and specifically pro- vides that "such previous examination, if approved, shall be conclusive." Only one exception to this mandatory rule is contained in the statute, and that is where the "fact con- tinuing shows the unfitness of the officer to perform all his duties at sea." The record of the candidate in this case prior to his last examination is entirely clear of all offenses of the character mentioned by the board, and therefore does not contain any matters into which the board is authorized by law to inquire, and for this reason it is held that the depart- ment has not the right to furnish the same to the board in response to its request. Such action would produce a de\'iation from the statutory provisions, and the precedent thus established might some time in the future result in the proceedings of a naval examining board being set aside and annulled as fatally irregular and defective. (File 26521-173:1, Feb. 1, 1917.) For other cases, see note to section 1496, Re\T.sed Statutes, under •" Consideration by board of court-martial proceedings." Records submitted to Board on Selec- tion for Promotion. — The act of August 29, 1916 (39 Stat., 578, 579), relating to the selection of officers for promotion, provides that the selection board shall be furnished by the Secre- tary of the Navy "with the record of each offi- cer." Under this law the board must be fm- nished with the entire record of the officer since his appointment to the Navy-, and not merely the record of the officer in his existing grade. The act of June 18, 1878, modif\ing section 1496, Revised Statutes, is inapplicable to the selection board, whose examination of the entire record would seem to be almost essential to determine comparative fitness. The act of June 18, 1878, can still have effective operation with reference to the promotion of officers to gi-ades below commander, and also with reference to the promotion of officers to the grades of commander, captain, and rear admiral, as the act of August 29, 1916, continues in force the proAdsions of the Revised Statutes relating to the promotion board, as supplemen- 722 The Navy. Pt.2. REVISED STATUTES. Sec. 1500. tary to selection in the latter cases, by the pro- vision "that any officers so selected shall prior to promotion, be subject in all respects to the examinations prescribed by law for officers pro- moted by seniority." (31 Op. Atty. Gen., 87, concmTing in opinion of the Judge Advocate General, Nov. 28, 1916, file 26521-169, which overruled the opinion of the Acting Judge Ad- vocate General of Nov. 14, 1916, file 26521-169). Counsel for examining board. — A letter having been received by an examining board signed as coimsel for a candidate for promotion the board requested that some person con- versant with the law be detailed to attend the sittings of the board and act as their adviser in matters of law and procedure. The department accordingly designated to advise the board in matters of law and procedure an officer attached to the Judge Advocate General's office who had been assigned when occasion requu'ed to the duty of conducting comls of inquhy and comts- martial. This action was taken in accordance with the precedent established some 12 years l^efore when the same candidate was examined for promotion to his present gi'ade (pay inspec- tor). On that occasion gi-ave matters affecting his fitness were upon record and the first navsu examining board which examined him found him neither morally nor professionally quali- fied for promotion. Col. Kobert G. Ingersoll appeared as his counsel before that board and Assistant Attorney General Simons was assigned to the duty of assisting the board during the examination. (Memo. Sec. Navy, Mar. 7, 1893, in relation to the examination of Pay Insp. John H. Stevenson for promotion to pay direc- tor.) Sec. 1500. [Officer may be present and make statement.] Any officer whose case is to be acted upon by such examining board shall have the right to be Present, if he so desires, and to submit a statement of his case on oath. — (21 April, 1864, c. 63, s. 3, v. 13, p. 53.) Provisions of this section held manda- tory. — Every officer of the Na\y whose eligi- bility to promotion is to be acted upon by an examining board under the proAisiona of sec- tions 1496, 1498-1505, Re^^.sed Statutes, has the right to be present at his examination. He must be duly notified of the time and place of his examination, and unless he waives his right or expresses a lack of desire to be present, he must be given lea^'e of absence or permission to attend. No finding of the board adverse to his qualifications for promotion can be made wdth- out a personal examination of such officer unless he fails to appear after haAing been dulv noti- fied to do so (sec. 1503, R. S.). Held, tliat the proceedings and findings of the naval examin- ing board in this case are fatally irregular and defective in that (1) said officer, being at the time in the discharge of hia duty on shipboard, and under orders of his superior officer, was not notified of the time and place of his examination for promotion, and was not given and did not have an opportunity or permission to exercise his right to appear and be heard at such exami- nation; and (2) said board of examiners rejected said officer and his application for promotion \\ithout any examination of himself, although he had not failed, "after ha\ing been duly notified, to appear before said board." (27 Op. Atty. Gen., 251.) Waiver of right to appear must be affirmative. — From the provisions of sections 1500 et seq . , it is apparent that in every case the officer whose case is to be acted upon has the right to appear and to be heard. The declara- tion of this right to be present carries Avith it a command to those ha\ing control of his person to relieve him from restraint and permit him to exercise the right thus conferred. An officer on duty can not leave \vithout orders or permission ; it is therefore the manifest duty of the proper officers to give to the candidate timely notice of the time when and place where the board ■\\ill meet to consider his case, and to give him also leave of absence and permission to attend; or to ascertain from him that he did not desii'e to be present. Without this the officer is effectually deprived of the right secured to him by the statute. The right to be present may be waived; but in order to do this some affirmative act of waiA'er is necessary and it is not inferred from the fact that the officer continues in the performance of the duty to which he has been ordered nor is this any expression of a lack of desire to be present at his exami- nation. (27 Op. Atty. Gen., 251.) Correction of action taken where officer not accorded the right to be present. — In this case the officer appeared before the board, but the examination was temporarily suspended and he was granted permission to go home and to be absent until notified by the board to appear. lie failed to receive this notice imtil after the examination, which was resumed during his absence, had been com- pleted. The proceedings and findings of the board were approved by the President and his orders in the case duly executed by the retire- ment of the officer under section 1447, ReAdsed Statutes, but the vacancy created by such re- tirement remains unfilled: Held, that the action of the President can be revoked and the officer allowed a rehearing, the vacancy created by hia retirement not having been filled and no righta of any other person having therefore intervened. (16 Op. Atty. Gen., 20.) Certain officera in the grade of lieutenant, by reason of vacancies in the next higher grade and their seniority became eligible for promotion to the vacancies upon passing the examinations required by section 1496. They were exam- ined and found disqualified j^rofessioually for promotion. They were suspended from pro- motion (sec. 1505, R. S.) and other officers next in order of seniority were examined, found qual- ified, and appointed to said vacancies. Lieut. Barnes was one of the officers first examined and the Attorney General (27 Op. Atty. Gen., 251, 258) held that said examinations were fatally irregular and defective. In consequence of the 723 Sec. 1502 PL 2. REVISED STATUTES. The Navy. Attorney General's conflusion the four ofFicers who liad boon suspended from {promotion were ajraiu oxaniinod, found i|u;ililu'd, and coinmis- eioned to fill the vacancies in the ejade of lieu- tenant commander to which they were orig- inally entit h'd. This necessitated the chaniring of the dates of ])rouiotion to lhe grade of lieu- tenant commander of those ollicers who in the meantime had (|ualificd and been commissioned. The fSecretaiy of the Na\y proi)erly, in accord- ance with the Attorney General's opinion, treated the examination as void and gave the officers otlier examinations. Jhld, that the promotions first made were contraiy to law (section 1458, R. S.) as the officers so promoted were not the senior oflicers entitled to such promotion, in view of the fact that the exami- nations fh-st held were irregular; accordingly held that the commissions issued to such officers were ineffecti^■e to give them the offices, but that such officers were de facto lieutenant com- manders from the date they received notice of their commissions and entered upon duty thereunder, although such promotions were subsequently set aside as illegal; and that pay received as such de facto lieutenant command- ers can not be recovered back. (17 Comp. Dec., 611). lender similar circumstances, an officer who did not receive notice of his pro- motion until after the date from which he took rank when subsequently promoted in accord- ance with law to another vacancy, was neither a de j ure nor de facto officer during the inteiim and therefore is not entitled to pay as lieutenant commander for that period. (18 Comp. Dec, 340.) Examination by supervisory board. — Wliere the written professional examination of an officer is conducted under the supervision of a board of officers where he is stationed, before which supervisoiy board the officer was ordered to and did appear for examination, but the record of proceedings of said supervisory board and all the evidence before it were transmitted to the Naval Examining Board at Wasliington, D. C, to be finally passed ujDon by the latter board subject to the approval or disapproval of the President, held that the officers who super- vised such examination as was had at the officer's station were not the naval examining board referred to in the statutes; their office was merely to collect and put into proper written form certain data and evidence bearing upon the qiialilications of the candidate and to transmit the same properly certified to the examining board at Washington and it is the latter board to which tlie statutes refer, before which the candidate has the right to be pres- ent. (27 Op. Atty. Gen., 251.) Where an officer appearing before a super- visoiy board formally waived liis right to appear before the statutory board, which latter board found him not ])rol'e.ssionally qualified for pro- motion, it was decided by the Secretary of the Navy, in accordance with the Attorney Gen- eral's opinion (27 Op. Atty. Gen., 251, noted above), that it would be legal to suspend the officer from promotion in accordance with sec- tion 1505, Re\dsed Statutes, as amended, but that as a matter of expediency, he would be permitted to appear before a statutoiy boai'd for personal examination. (File 26260-2744, May 22. 1910.) Candidate should be formally notified of charges against him. — \\Tiile it has been held by the Navy Department that the candi- date ha\dng been present during the examina- tion and knoAvn the testimony introduced, and having announced that he would not avail him- self of the opportunity given by the board to offer further testimony, had no ground for com- plaint on accoimt of the fact that he had not been formally notified that the evidence tended to show that "he was addicted to habits of intem- perance, the depaitment deems it proper that in a case of this character the candidate should be formally notified of the charges against him and heard upon them as indicated in the pub- lished instructions for naval courts and board. (File 2136-98, Apr. 12, 1898.) Statement by candidate not under oath. — The candidate has the right to submit a statement of his case on oath, if he chooses so to do; however, where he did not express any desire to make his statement under oath, but submitted a statement not under oath, it must be taken that he waived the right to make said statement under oath. The proceedings of the board in such case were accordingly approved by the President. (File 26260-1678, Feb. 28, 1912; see also file 26260-1360:1, Jan. 30 and Feb. 12. 1912.) Sec. 1601. [Record.] The statement of such officer, if made, and the tes- timony of the witnesses and his examination shall be recorded. — (21 April, 1864, c. 63, s. 3, v. 13, p. 53.) The Judge Advocate General shall, under the dii-ection of the Secretaiy of the Nav>% receive, revise, and have recorded the proceedings of all boards for the examina- tion of officers for promotion in the naval service. (Act June 8, 1880, 21 Stat., 164, amended June 5, 1896, 29 Stat., 251.) Instructions for the keeping of records of examining Ijoards and the form of such records, are contained in Naval Courts and Boards, 1917. Sec. 1602. [Revision by the President.] Any matter on the files and records of the Navy Department, touchmg eacli case, which may, in the opuiion of the board, be necessary to assist them in making up their judgment, shall, together with the whole record and finding, be presented to the President for his approval or disapproval of the finding. — (21 April, 1864, c. 63, s. 3, v. 13, p. 53.) 724 The Navy. Ft. 2. REVISED STATUTES. Sec. 1503. Amendment to this section was made by act of June IS, 1878 (20 Stat., 165), which pro- \'ided ' ' that hereafter in the examination of officers in the Navy for promotion no fact which occuiTed prior to the last examina- tion of the candidate whereby he was pro- moted, which has been enquired into and decided upon, shall be again enquired into, but such preAT-Ous examination, if ap- proved, shall be conclusive, unless such fact continuing shows the unfitness of the officer to perform all his duties at sea." Also by act of May 22. 1917, section 20 (40 Stat.. 90), which provided that "the Presi- dent be, and he is hereby, authorized to direct the Secretarj' of the Na\'y to take such action on the records of proceedings of naval examining boards and boards of naval siu'geons for the promotion of officers of the Navy as is now required by law to be taken by tiie President."' Supervisory power of President over physical examination. — Section 3 of the act of April 21, 18G4 (sec. 1502, R. S.), refers to action by the President upon the finding of the board of examining officers provided for in sec- tion 1 of that act, wliich passes upon the "men- tal, moral, and professional fitness" of the can- didate. There is nothing in said act constituting the board of na\-al surgeons, as to who shall ap- point them, or as to the number of whichthe board shall consist, nor any express provision for ap- proval or disapproval by the President. How- ever, by the fourth section of the act of July 16, 1862 (12 Stat., 584), provision was made for an ad\"isory board to report upon the "moral, men- tal, physical, and professional qualifications" of line officers for promotion; and section 5 of the act of April 21. 1864, provides that all officers not recommended for promotion under the said pro\'ision in the act of 1862 *' shall have the right to present themselves for examination, accord- ing to the proA-isions of this act; and if found duly qualified, and such finding be approved by the President of the United States, they shall be promoted," etc. Although this pro- vision of the act of 1864 provides only for such officers who lia\'e been before the board estab- lished by the act of 1862. and were not recom- mended by that board, it affords safe groand for holding that the same approval exists as to all other officers examined by both boards in accordance with the act of 1864. Accordingly, held, that the President has a supervisory power over the action of the board of naval siii-geons proA-ided for in section 4 of the act of April 21, 1864 (sec. 1493, R. S.), and may approve or disapprove the same. (12 Op. Atty. Gen., 347.) No officer can be promoted until his physical fitness to discharge all his duties at sea has been favorably passed upon by a board and the board's action has the approN-al of the President. (Hooper 1). U. S., 53 Ct. Cls., 90, 102.) The conclusions of any military court, board, or commission must, before being carried into execution, have the approval of the Commander in Chief or of some one representing him. Ac- cordingly, even where the law does not ex- pressly provide for approval of boards in the Ai-my, such boards must receive the approval of the Secretar}' of War, whose action is con- clusively presumed to be that of the President, in order to be valid and effective. It is not, however, essential that this approval should be express or indicated in any formal language; it might be indicated by merely giving effect, thi'ough appropriate orders, to the findings of the board. (27 Op. Atty. Gen., 193; file 26266—627:1, Jan. 30, 1919.) See also act of May 22, 1917, section 20 (40 Stat., 90), quoted above as amendment to sec- tion 1502. Approval or disapproval of President required to give effect to findings. — Under the law a candidate's status could not become that ef an officer qualified for promotion until his physical fitness for the promotion had been found b}^ a board of naval surgeons, as required by sections 1493 and 1494, Revised Statutes, and his mental, moral, and professional fitness therefor had been found by a board of examin- ing officers appointed under section 1496, and *the findings of both of these boards to that effect had been approved by the President as required by section 1502 (22 Comp. Dec, 153, citing 12 Op. Attv. Gen., 347, 18 Comp. Dec, 466, Jouett V. U. S., 28 Ct. Cls., 257, 266). On the other hand, his status could not become that of an officer disqualified for promotion or to whom the presumption of disqualification at- taches by the mere finding of the board alone, without its approval by the President, as sec- tion 1502 requires equally all findings of a board, whether of fitness or unfitness, to be presented to the President for his approval or disapproval, and an officer is entitled to the benefit of the President's action on an adverse finding before being classed as disqualified or being presumed to be disqualified. (22 Comp. Dec, 153; com- pare Hooper v. U. S., 53 Ct. Cls., 90.) The promotion of an officer can not take place (under sees. 1493, 1494, 1496, and 1502) until his fitness for the promotion has been established to the satisfaction of both the lx)ard of naval siu-geons and the board of examining officers, and the recommendation of both boards to tliis effect has been rendered operative by the approval of the President. (18 Comp. Dec, 466, citing 12 Op. Atty. Gen., 347; Jouett v. U. S., 28 Ct. Cls., 257, 266-267; Adamson v. U. S., 19 Ct. Cls., 623, 628; Crygier, Admx. v. U. S., 25 Ct. Cls., 268; 17 Comp. Dec, 167, etc.) Suspension of action by the President. — An officer absent from the United States on duty on a foreign station became due for promo- tion by seniority; he was nominated for the promotion, "subject to the requii'ed examina- tion before being commissioned''; the Senate achised and consented to the appointment of said officer and others similarly nominated, ' ' agreeably to theii- nominations, respectively' ' ; the same day the President signed a commission appointing the officer to the higher ^ade for which nominated and confirmed, which com- mission was given to the Secretary of the Navy, who held it to be delivered to the officer upon his passing the examination required by law; after his return to the United States some years later, the officer was duly examined, and reported qualified by the board in conformity with section 1504, Revised Statutes; the Presi- dent took the following action upon the board's report: "After examination of the record I have concluded to suspend final action upon the 725 Sec. 1502. Pi. 2. REVISED STATUTES. The Navy. fijuliiig of the l>oard luilil uii opportunity shall hAxo been afforded Lieut. Jouett to further estal^lit^h hi.>^ fitne.'ss for promotion, which, con- pideriiig the c^•idenc■e of record indicating a tendency on his part to intemperate habits, I regard as open to question, lie will therefore 1)6 ordered for duty at sea, for such period as the Secretary- of the Navy may deem proper, and his conduct while on such sendee will be roi Hirted for my information . ' ' The President's order was obeyed, and more than a year later he disapproved the findings and recommenda- tions of the lx)ard and directed the officer to be reexamined. The following year the r)fficer wasreexamined andfound not morally qualified, which finding was ajijiroved by the President and the officer discharged from the service in accordance with the act of August 5, 1882 (22 Stat., 280), (which was enacted after he had become due for promotion and had been nom- inated, confirmed, and his commission made out subject to examination). Held, That the President's approval or disapproval of the find- ings is, by section 1502, Re^dsed Statutes, dis- tinctly required, and it is contemplated that he shall "examine the whole record and findings: having the duty imposed upon him to approve or disapprove, the President had the power to suspend action or to seek further information; these are necessaiy incidents of the executive reviewdng power; to become operative the board's decision must be acted upon by the President, and the nomination and confirma- tion of a naval officer for promotion, ''subject to the required examination before being com- missioned," do not take the case out of the operation of the Pve^'ised Statutes, section 1502, which makes examinations subject to the approval of the President. (Jouett v. U. S., 28 Ct. ns.,257.) An officer was examined for promotion in course to fill a vacancy existing on August 23, 1912; the board of naval surgeons which ex- amined him on December 9, 1912, found him physically qualified for promotion and said finding was approved by the President Julyl, 1913 ; the examining board , which examined him on February 4, 1913, found him mentally and professionally, but not morally, qualified; this finding was not presented to the President and no action was taken by him thereon. He was again examined, May 8, 1913, and found men- tally, morally, and professionally qualified; the President on July 1, 1913, directed that action upon this report be suspended for one year; he was again examined, August 19, 1914, and found mentally, morally, and professionally qualified; the President on September IG, 1914, directed that action upon this report be withheld for a period of six months, "when such action will tje taken as the nature of a special report which will be required from his commanding officer will warrant." At the end of six montlis the required findings and special report were sub- mitted to the President and on I^Iarch 25, 1915, he approved the findings of the examining boards of May 8,1913, and Augu.st 19, 1914, to the effect that the officer was mentally, morally, and professionally qualified. The President ha^'ing previously approved the findings of the medical board as to the physical fitness of the candidate, upon his approval of the findings as to his mental, moral, and professional quali- iications on March 24, 1915, the candidate's status became that of an officer qualified for promotion in course to fill a vacancy, who had not previously been disqualified for the promo- tion and to whom no presumption of disquali- fication attached prior to his actual qualifica- tion, and who therefore is presumed to have been qualified from the date of the vacancy. (22 Com p. Dec, 153; compare Hooper v. U. S., 53rt. Cls., 90.) Section 1502 contemplates an examination by the President of the whole record and find- ings and no limitation is placed upon the time which he may take in appro\dng or disapprov- ing a finding. Having the duty imposed upon him under the statute to approve or disapproA-e a finding, he had the power to suspend doing so and to seek further information, and his sus- pension of July 1, 1913, of such action in this case for one year on the findings of the mental, moral, and professional fitness of the board of May 8, 1913, and his further withholding, Feb- ruary 16, 1914, of such action for six months subsequent to the finding to the same effect of the board of August 19, 1914, were necessary incidents of his exercise of the reAde^vLng power confen-ed on him by section 1502, (22 Comp. Dec, 153, citing Jouett v. U. S., 28 Ct. Cls., 257, 262.) An officer became due for promotion by length of ser^dce on December 27, 1912; was examined by a board of medical examiners on February 15, 1913, and by a na^-al examining board on February 19, 1913, and foimd quali- fied by both boards. In \dew, howe%-er, of unfavorable reports of fitness in his case, the Secretary of the NaAy recommended and the President directed on April 9, 1913, that final action on the findings and recommendations of the boards be suspended for a period of one year, at the expiration of which time he would be again examined. On October 31, 1914, he was reexamined by a board of medical exam- iners and found not physically qualified for promotion. This finding was approved by the President on November 21, 1914. He was ex- amined by a naval retiring board on Decem- ber 21, 1914, and foimd temporarily incapaci- tated for active service, and on June 12, 1915, was reported by another naval retiring board not incapacitated for active sendee; both reports were approved by the President. On September 15, 1915, he was examined by a board of medical examiners and foimd phj^si- cally qualified for promotion, but imder date of November 17, 1915, was found by a naval examining board to be not professionally qual- ified ; both reports were approved by the Presi- dent and the officer was suspended fi'om promotion for six months in accordance wdth section 1505, as amended. On July 7, 1916, he was examined by a board of medical examiners which foimd him not physically qualified for promotion and recommended that he be re- examined physically in six months; no action was taken by the President upon this report. On January 22, 1917, he was again examined by a board of medical examiners and found pnysically qualified for promotion and on January 30, 1917, a na^-al examining board reported him mentally, morally, and profes- 726 The Navy. PL 2. REVISED STATUTES. Sec. 1502. sionally qualified for promotion; both reports were approved by the President on April 5, 1917. He was commissioned in the higher grade for which found qualified \vith date from Jime 27, 1913, six months after the date on which he originally became due for promotion. The officer brought suit in the Court of Claims for pay of the higher grade from the date stated in his commission, and the attorney for the United States conceded his right to recover. Nevertheless the Court of Claims decided that the officer was not entitled to pay from the date stated in his commission, Jime 27, 1913, as authorized by the act of March 4, 1913 (37 Stat., 892). Four opinions were filed by the court in this case, in wliich the President's course in suspending action upon the favorable reports of the boards which first examined the officer and foimd him qualified was construed as equivalent to an imfavorable finding by said boards. In the opinion of Hay, J., it was stated with reference to this point: "It does not appear from the record whether the unfavor- able reports of fitness referred to professional or physical unfitness; and for a proper deter- mination of the case it makes no difference to which they referred. If he was physically unfit, and the President for that reason sus- pended for a period of one year the findings and recommendations of the boards, and di- rected him to be examined again at the end of that period, then the plaintiff could not have been promoted in pursuance of law at the time he was examined, nor until he became physi- cally qualified * * *. It also appears that the plaintiff was physically disqualified down to June 12, 1915. * * * If he failed pro- fessionally on his first examination and failed again on his reexamination, he is illegally in the service and certainly can not now ask for the pay of an office to which he is not entitled. So whether he was physically or professionally unfit in his first examination he has no stand- ing in this court." In the opinion of Barney, J., it Avas said: "As before stated, the plaintiff in this case was deferred from rank as chief machinist for six months, presumably by reason of haAdng failed once professionally on an examination, but was not deferred from rank on advance on accoimt of physical disability. * * * Section 1493, it will be seen, suspends him from promotion automatically during the period that he is not qualified for service at sea, which of course is during the time he is physically disqualified for promotion. Thus, construing section 1493, section 1505, as amended, and the act of March 4, 1913, together the plaintiff was automatically (by sec. 1493) and actually by law (act of Mar. 4, 1913) sus- pended from promotion during the whole period extending fi'om the completion of his six years' ser\dce as machinist (Dec. 29, 1912) to a date six months after his failure on exam- ination professionally, which would bring that time to June 16, 1916, beyond which his rank could not be extended.'' Campbell, C. J., referring to the qualifications for promotion of the officer at the time he originally liecame due, stated: "Not only is it thus made to appear that he was not qualified, but the record goes further and affirmati^-ely shows that he was disqualified. To have promoted him in the face of this record would have been in total disregard of section 1493." It was further stated in the opinion last cited: "Up to Sep- tember 15, 1915, the plaintiff had been found physically disqualified and therefore could not be promoted because of the provisions of sec- tion 1493. * * * He was examined on July 7, 1916, and was reported incapacitated for duty. While no action appears to have been taken by the President on the last report, the officer could not be promoted under sec- tion 1493 in face of that report unless inaction upon it be held to be equivalent to no report by the board. It was not until January 22, 1917, that plaintiff qualified under section 1493." (Hooper v. U. S., 53 Ct. Cls., 90.) The Secretary of the Navy submitted to the Depart- ment of Justice a memorandum concerning this case mth request that if deemed advisable same be placed before the Court of Claims in any further proceedings which might be had; motion for a new trial was made by claimant and was overruled by the Court of Claims be- fore opportunity had presented for the Attorney General to consider the question of submitting said memorandum to the couit. The Secre- tary of the Na\^ thereupon sul^mitted to the Court of Claims certain questions bearing upon the action to be taken in this case, for a ruling by the court thereupon under section 148 of the Judicial Code, and the court decided that it was -without jurisdiction under that section to answer the questions so submitted. It was thereupon decided by the Na\'y Department that, as the case stood, the ajjpointment which had been issued to this officer was inoperative and ineffectual, and that the necessary steps should be taken to issue him a new appoint- ment; also that as the Court of Claims' decision appeared to have been based principally upon the fact that no final action had ever been taken upon the first examinations in this case, the records thereof should be submitted to the President with recommendation that the find- ing of the l)oard of medical examiners that this officer was physically qualified when first examined be approved, and that the finding as to his professional qualifications be disapproA'ed ; which was accordingly done, and upon such action having been taken by the President the oflScer was renominated, reconfirmed, and recommissioned with rank from the same date as stated in his original commission. (File 26266-627:1.) He then brought suit in the Court of Claims for pay from date stated in his new commission (Hooper v. U. S., Ct. Cls., No. 33,975), but this suit was subsequently wdthdrawn by him prior to decision. Approval by President subject to recom- mendation of Secretary of the Navy. — An officer was examined for promotion and found not physically qualified therefor. The Bureau of Medicine and Surgery recommended that he " l)e ordered to naval hospital for opera- tive treatment, and that he 1 je reexamined when he has recovered to determine his physical fit- ness for promotion." The Secretary of the Na"vy, reciting the recommendation of_ the Bureau of Medicine and Surgery, transmitted the record to the President with his ad^dce "that the findings and recommendation of the board of medical examiners in this case be 727 Sec. 1504. PL 2. REVISED STATUTES. The Navy. apjiroved, ^vith a -view to effecting the recom- mendation of the Biirr'an of Medicine and Sur- fery in the above-quoted indorsement." The 'resident's action upon the record was as fol- lows: "The finding and recommendation of the board in this case are approved." There- after the officer was admitted to the naval hospital for operative treatment, after which he was again examined and found physically qualified for promotion. Held, that it would be too strict, if not a strained construction of the President's action to say that he merely approN'ed the Ihiding of the Ijoard of medical examiners when as a matter of fact he had l)e- fore him not only their rejwrt but the recom- mendation of the Bureau of Medicine and Sur- gery and the adAdce thereon of the Secretary of the Naw. In \dew of the course that was subsequently taken it would seem that the construction adopted and acted upon, that the Executive had approved the recommendation of the Bureau of Medicine and Surger\' which accompanied the report, indorsed as it was by the Secretary of the Navy, that the officer be reexamined after receiving operative treat- Sec. 1503. [No officer to be rejected without examination.] No officer shall be rejected until after such public examination of himself and of the records of the Navy Department in his case, unless he fails, after having been duly notified, to appear before said board. — (21 April, 1864, c. 63, s. 3, v. 13, p. 53.) ment, can not be said under the facts of the case to have been an unreasonable construction. Accordingly the officer did not lose any right to be promoted to the vacancy for which first examined Avith rank from date of said vacancy. (Do\vnes v. U. S., 52 Ct. Cls., 237; compare 22 Comp. Dec, 565, 591, 646.) Revocation of President's action. — See note to section 1456, Revised Statutes, under "Revocation of President's action." See also examining board record in case of Lieut. (Junior Grade) Harold W. Scofield, United States Navy, and iile 2(i2(R)-G133, April 26, 1919. Jurisdiction of Civil Courts. — The pro- ceedings of an examining board to determine the qualifications of an officer of the Army for pro- motion can not be reviewed by the civil courts by v\Tit of certiorari. The decision of the board is not final but must be reported vdth the pro- ceedings to the President, and may be approved or disapproved by him. This is the only relief from the errors or the injustice that may be done bv the board which is provided. (Reaves v. Amsworth, 219 U. S., 296, 306.) Statute held to be mandatory. — ^The lan- guage of the section, "'no officer shall l)e rejected until after such pulilic examination of himself," refers manifestly to the previous sections giving him the right to appear and be examined under oath; and it is this personal examination which must be had in every case liefore an adverse finding, or which is the same thing, before the officer can be rejected. These provisions make it certain, first, in ev^ery case the officer has a right to be present at his examination; second, in every case he must be duly notified of the time and place of his examination and unless he waives his right or expresses a lack of desire to be present, he must l)e giv^en leave of absence or permission to attend; and third, no finding of the l)oard adverse to his qualifica- tions for promotion can be made without a per- sonal examination of the ofiicer himself unless he fails to appear after having been duly notified to do so. The proceedings of an examining board are fatally irregular and defective where the officer being at the time in the performance of his duty on shipboard under orders of his superior officer, was not notified of the time and place of his examination for promotion and was not given and did not have an opportunity or permission to exercise his right to appear and be heard at such examination, and nevertheless said board of examiners rejected said officer and his application for promotion without any examination of himself, although he had not failed "to appear, after being dulv" notified, before said board." (27 Op. Atty. Gen., 251.) Wliile the expression, "no officer shall be rejected until," etc., is not the most apt to express the idea intended, yet the meaning of the section is 1)oth certain and plain. For the only matter or thing which this board can "reject" or allow or pass upon at all is the application, claim, or right of the officer to promotion, involv ing of course his fitness there- for. The board can do but one of two things, find the officer (jualified and recommend his promotion or find him not qualified and fail to recommend his promotion. The latter is the only possilile way in which an officer can be "rejected," and when the board thus finds that the officer is not (jualified and that they do not recommend him for promotion, the officer is "rejected" within the meaning of this sec- tion. And this is what the section says shall not be done without the personal examination of the officer or his failure to appear after being duly notified to do so. (27 Op. Atty. Gen., 251.) For other cases, see note to section 1500, Revised Statues. Sec. 1504. [Report of recommendation.] Such examining board shall report their recommendation of any officer for promotion in the following form: "We hereby certify that has the mental, moral, and professional qualifications to perform efficiently all the duties, both at sea and on shore, of the grade to which he is to be promoted, and recommend him for promotion." — (16 July, 1862, c. 183, s. 4, v. 12, p. 584. As amended by 21 April, 1864, c. 63, s. 4, V. 13, p. 53. 28 July, 1866, c. 312, s. 1, v. 14, pp. 344, 345.) 728 The Navy. PL 2. REVISED STATUTES. Sec. 1505. Form of report by naval examining board. — By act of May 22, 1917, section 20 (40 Stat., 89), it was pro^dded "that hereafter all laws relating to the examination of officers of the Navy for promotion shall be construed to apply to the regular advancement of staff officers to higher ranlcs on the acti-ve list the same as though such advancements in rank were promotions to higher grades: Provided, That examinations for such staff officers shall not be required except for such regular advance- ments in rank." Naval Courts and Boards, 1917 (p. 439), prescrilwd the form of report by naval examining lioards in the cases of candi- dates found qualified for promotion, as follows: "We hereby certify that Lieutenant H C. E , U. S. Navy, has the mental, moral, and professional qualifications to per- form efficiently all the duties, both at sea and on shore, of the grade (grades) to which he is to be promoted, to wit: (and ) and recommend him for promotion." By Changes in Naval Courts and Boards, 1917, No. 1, of March 16, 1918, the foregoing form was changed by inserting after the word "(grades)" the words "(or rank)," and by striking out the words "to which he is to be promoted," and inserting in place thereof the words "for promotion to wMch he is a candidate." By Changes in Naval Courts and Boards, 1917, No. 2, the words, " for promotion to which he is a candidate," were stiicken out, and the words used in section 1504, "to which he is to 1)6 promoted," were restored. Sec. 1605. [Failing in examination.] Any officer of the Navy on the active list below the rank of commander who, u]ion examination for promotion, is found not professionally qualified, shall be suspended from promotion for a period of six months from the date of approval of said examination, and shall suffer a loss of numbers equal to the average six months' rate of promotion to the grade for which said officer is undergoing examination during the five fiscal years next preceding the date of approval of said examination, and upon the termination of said suspension from promotion he shall be reexamined, and in case of his failure upon such reexamination he shall be dropped from the service with not more than one year's pay: Provided, That the provisions of this Act shall be effective from and after January first, nineteen hundred and eleven. This section was amended and reenacted to read as above by act of March 11, 1912 (37 Stat., 73). As originally enacted it read as follows: "Sec. 1505. Any officer of the Navy on the active list below the grade of commander, who, upon examination for promotion, is not found professionally qualified, shall be suspended from promotion for one year, with corresponding loss of date when he shall be re-examined, and in case of his failure upon such re-examination he shall be dropped from the service." (15 July, 1870, c. 295, s. 8, v. 16, p. 333.) Further amendment to this section was made by act of August 29, 1916 (39 Stat., 579), pro- viding for promotion by selection of line officers in the grades of lieutenant com- mander, commander, and captain, which act provided that should officers so selected fail in their professional examination they "shall thereafter be ineligil)le for selection and promotion. " This law v/as extended to staff officers of the Navy by act of July 1, 1918 (40 Stat., 718). Construction of section 1505 prior to amendment. — -The words in section 1505, "shall be suspended from promotion for one year, \vith corresponding loss of date, " do not mean that the loss of date is to be contem- poraneous with the term of suspension but only that it shall agree therewith in point of dura- tion. Accordingly, where a lieutenant in the Navy, being the senior ofticer of his grade, became entitled to examination for promotion to fill a vacancy in the next higher grade (lieu- tenant commander) which occurred January 22, 1880, and afterwards upon examination failed to pass and the findings of the examining board were approved, February 6, 1880, by the President, who dii-ected that the officer "be suspended from promotion for one year, with corresponding loss of date, " held that the loss of date of the officer is one year, to be reckoned from the occurrence of the vacancy, January 22, 1880, the date from which he would have taken rank as lieutenant commander had he been found qualified for promotion, and that his year of suspension is to be reckoned from the approval by the President of the findings of the examining boards, February 6, 1880. In this case, as the officer, by reason of his suspension, is ineligible for promotion during the whole of the year commencing February 6, 1880, no va- cancy should be kept open for him until Feb- ruary 6, 1881. Such vacancies as happen to exist during that period the officers who are then eligible for promotion are entitled to fill. But as his loss of date is only to be one year from January 22, 1880, if on liis second exam- ination he shall be found qualified to fill a vacancy in the next higher grade which occurred after the period of his suspension, he will be entitled upon promotion thereto to take rank in such grade as of the date of January 22, 1881; he will not, however, be entitled to the pay of the higher grade from the ranking date in his commission, as his case is not one covered by section 1562, Revised Statutes. (16 Op. Atty. Gen., 587; pay of officers on promotion from date stated in their commissions is now provided for by act of Mar. 4, 1913, 37 Stat., 892.) If it were held that thf loss of date is to com- mence from the time when the President ap- 729 Sec. 1505. Pt. 2. REVISED STATUTES. The Navy. proved the findings of the examining boards, the ollicer might practically lose much more than a year in date, as under some circumstances there may be considerable delay in the adjudi- cation of his case. On the other hand, if the suspension is to date from the time of the oc- currence of the original vacancy, it is easy to conceive of cases in which the otiicer suspended would not have the time which it was the inten- tion of the statute to allow him in order to re- pair the deficiencies in his professional qualifi- cations. If upon his second examination he fails, the officer is to be dropped from the rolls of the Navy; and in making provision for sus- pension and for reexamination it was clearly intended that a considerable time should elapse between the commencement of the suspension and the time when he could be ordered for re- examination. For the period of the year of suspension the officer is out of the ser\-ice so far as promotion is concerned. As he is ineligible for promotion during the whole year, no va- cancy should be kept open for him until ex- piration of that period. Such vacancies as occur the ofiicers who are then eligible are enti- tled to fill; and it is the ob\-ious intention of Congress that such positions shall be filled, as they are created not for the benefit of officers but for the needs of the public service. (16 Op. Atty. Gen., 587.) Section 1505, prior to its amendment, required that professional failure of an officer below the grade of commander be followed by suspension "from promotion"' for one year with corres- ponding ' ■ loss of date, " or a one-year loss of date and a subsequent reexamination. Under the construction which was placed upon it, the year of suspension "from promotion" began to run from the date of the President's approval of the finding by a naAal examining board of pro- fessional disqualification of an officer for promo- tion; on the other hand, the year of "loss of date" began to run from the retroactiA-e date of the vacancy for which the officer was examined and found disqualified to fill (citing 16 Op. Atty. Gen., 587; 25 Op. Atty. Gen., 568; 20 Comp. Dec, 199, etc.). The year of suspen- sion "from promotion" and the year of "loss of date" were different years and covered differ- ent periods of time, the former running from one date, the latter from another, and the two per- iods being separate and distinct. The period of suspension "from promotion" was the period which affected the right of the oflicer to the pay of the higher office for which he had failed to qualify, in that it postponed for a year his reex- amination to that office, which in turn affected the })articular vacancy in said higher office to which upon eventually passing the examina- tions as required by law he would become en- titled to be appointed or promoted. During said year of suspension from promotion no va- cancy in the higher office could be kept open for him, and upon his subsequently passing the examination he could only be appointed to a vacancy that was in existence during the year in the event there remained one to which the right of no other officer had attached. On his appointment to such a vacancy or a subsequent one he became entitled to the rank of the higher office for pay pujqjoses for the retroactiAe period i'rom the date of appointment back to the date of the vacancy he was entitled to fill or in other words to the pay of the higher oflice from the date of such vacancy if an officer covered by the act of June 22, 1874 (18 Stat., 191). His "loss of date" on the other hand operated to reduce him in number on the list which in turn oper- ated to delay his right to promotion to the grade above the one from which he had been sus- pended from promotion because of his being relegated by said loss of numbers to a lower place in the list than he othemise would have occupied. It had no effect on his rank for pay purposes to the office from which he had been suspended (22 Comp. Dec, 623, citing 16 Op. Atty. Gen., 587, 592). Where a vacancy occurring February' 2, 1895, was held open for an officer during his year of suspension, after which he was again examined and was promoted to fill said vacancy with rank from February 2, 1896, one year after the vacancy occurred, held that he was not entitled to be promoted to said vacancy but should have been promoted to the first vacancy occurring after the expiration of his year of suspension; and that he can not be allowed pay in the higher grade until the date that the latter va- cancy occurred. (6 Com. Dec, 17.) Method of executing loss of numbers. — Under section 1505, as it originally read, an of- ficer suspended from promotion by reason of failure on examination, although subjected to a loss of numbers greater than at present, did not lose his position as the senior officer in his grade during his period of suspension. In other words, the officer while under suspension was nevertheless carried at the top of his grade, his loss of numbers being accomplished by the advancement over him of his juniors in grade who successfully qualified for promotion diu"- ing the period of one year from the date of the vacancy to which he would have been advanced had he' qualified therefor (citing file 26521-40, June 11. 1912); the amendment of March 11, 1912, was intended to reduce the period of sus- pension from one year to six months, and to mitigate the loss of numbers; also it proxided that if the officer failed upon reexamination he should be dropped from the service Arith not mot;e than one year's pay^ instead of being dis- charged without any additional pay as was for- merly the case. Accordingly, the whole pur- pose of the amendment was to mitigate the penalties previously prescribed by law for fail- ure of an olficer to qualify for promotion and not to add new penalties or to increase those already required. The administrative practice of the NaA^ Department, adopted upon the amend- ment, was to reduce the officer in his grade while under suspension according to the loss of numbers suffered, thereby imposing upon him a loss of seniority in grade while under suspen- sion which he did not suffer under the former laws, thus adding a new penalty to that for- merly proAided. This practice, in the caseof officers promoted by seniority, created an in- consistency between the period of suspension and the loss of numbers, which in many in- stances would operate to increase the period of suspension beyond the six months provided for by Congress; also in the case of officers pro- moted by length of service it necessitated, first, reducing the officer below those who were 730 The Navy. PL 2. REVISED STATUTES. Sec. 1605. eventually to rank him, secondly, advancing him over the heads of such officers as had not been promoted when his term of suspension ex- pii-ed, and third, holding him at the foot of the higher grade when so advanced until the officers whom he had j limped should be advanced over him. These objections would be obviated by reverting to the practice which was in force un- der section 1505 as it originally read, \iz, let- ting the officer retain his position at the top of his grade during his period of suspension and advancing his juniors over him until his total loss of numbers had been consummated; should his period of suspension expire in the meantime, under this practice he would be pro- moted if qualified and then mark time at the foot of the next higher grade until the other of- ficers entitled to rank him in consequence of his loss of numbers had been advanced over him. (File 26260-3091: 1, Nov. 3, 1915.)_ While legal and fully in accordance with the spirit and purpose of the law to execute the total loss of numbers by having the officer mark time during his period of suspension while his juniors are advanced over him until the total loss of numbers has been consummated, the former pi-actice of reducing the officer in grade during the period of suspension, which was adopted after the amendment of March 11, 1912, was not illegal; the law permits of either practice, and it was well within the discretion of the Navy Department to execute the total loss of niunbers immediately upon commence- ment of the period of suspension, as it has done. It follows that, notwithstanding a change in this practice, the action taken in past cases, not being illegal, should not be disturbed where the officers concerned have already been pro- moted and commissioned. (File 26260-3091:1, Nov. 3, 1915.) The fact that the loss of numbers which an officer is required to suffer under section 1505, as amended, is to "equal the average six months' rate of promotion to the grade for which said officer is undergoing examination" would seem to indicate that the loss of nmnbers is to be suffered in the higher grade, while a loss of numbers in his present grade and an immediate promotion to a higher grade would be of no practical effect so far as loss of numbers is con- cerned. It would seem, therefore, that an assistant surgeon advanced under such cir- cumstances to the lowest number in the grade to which he is thus promoted must be held stationaiy at that nmnber until the officers be- low him, corresponding to the niunbers he has lost, have been advanced over him in said higher grade. (Toulon v. U. S., 51 Ct. Cls., 87, 96; see also file 26280^68, Mar. 18, 1916.) The loss of numbers is determined by the condition of the Navy Register at the date the suspension becomes effective; thus, where an officer is required to lose nine numbers in con- sequence of his failure, these numbers are rep- resented by the nine officers who were next below him m grade on the date that his suspen- sion went into effect, and if any casualties occur within these nine numbers he would benefit thereby. (File 26260-3091:1, Nov. 3, 1915.) Under the amendment of March 11, 1912, only promotions actually made during the five calendar years in question should be taken as a basis for determining the "average six months' rate of promotion" during said years. It would be contrary to the letter and spirit of the law to take as a basis "the rate of duly slated promotions, which would include both actual promotions made and promotions that were due to be made but were not owing to failure of officers to qualify therefor, " resigna- tions, retirements, etc. The latter method would not furnish a correct basis for determin- ing the average "rate of promotion," which necessarily implies the consummated advance- mentof officers to higher grades. (File 26521-40, June 11, 1912.) Ensign A became due for promotion, was ex- amined and suspended in the latter part of the fiscal year 1911; Ensign B, his junior, became due for promotion, was examined, and sus- pended in the early part of the fiscal year 1912. In consequence it was necessary to count differ- ent periods of five years in computing the loss of numbers which these officers were to sustain. As a result. Ensign A lost 34 numbers, while Ensign B, his junior, lost only 33. This pro- duced the apparent injustice of making Ensign B rank Ensign A in the higher grade when pro- moted, thereljy l)ecoming senior to the officer who originally ranked him. However, this re- sult necessarily follows from the wording of the law, and can be remedied only by Congress. (File 26521-40, June 11, 1912.) Date of rank on promotion after sus- pension. — ^An officer due for promotion after a specified period of service, wdio is suspended from promotion for a period of six months should, if afterwards promoted, be given rank from a date six months later than that on which he first became due for promotion. (File 26260-2605:2, Aug. 17, 1915.) An officer due for promotion \ry reason of seniority who is suspended from promotion .for a period of six months should, if afterwards pro- moted, begivenrank from tliedateon which the vacancy occurred which he is promoted to fill, provided such vacancy did not occur during the six months' period of suspension. (File 26260- 2605:2, Aug. 17, 1915.) An officer due for promotion by reason of seniority who is suspended from promotion for a period of six months should, if afterwards pro- moted, be given rank from the date that the pe- riod of suspension expired, where the vacancy which he is promoted to fill occurred during the six months' period of suspension. (File 26260- 2605:2, Aug. 17, 1915.) In the case of ensigns who are promoted in due course after three years' service from date of commission as such, it is proper in routine cases that the date from which they are to take rank on promotion to 1 ieutenant ( j unior grade ) should be three years later than the date from which they took rank in the grade of ensign. Where, however, an ensign fails on examination for pro- motion it is expressly stipulated by law that he "shall be suspended from promotion for a pe- riod of six months from the date of approval of said examination." The effect of this is to postpone the officer's right to promotion for a period of six months, and consequently to fix a later date from which he is to take rank if finally promoted than would have been the case had he 54641°— 22- -47 731 Sec. 1505. Pt.2. REVISED STATUTES. The Navy. qualified in due course when first examined. If the first examination of such officer has been (h^hiyed without fault on his part, in justice and fair dealing the date from which he should take rank when ultimately promoted may be fixed as six months from the date from which he would have been promoted had he been found quali- fied when first examined, or as three years and six months later than the date from which he took rank in the grade of ensign. But in no case could an officer who has been suspended from promotion on account of failing in his profes- sional examination be entitled to take rank from the same date when promoted to the higher grade as though he had not been suspended. (File 26268-475, May 14, 1915.) Two classes of cases arise under this section, \iz, first, those in which promotions depend upon length of servdce, and, secondly, those in which promotions depend upon seniority. In file 26266-475, of May 14, 1915, it was held that the effect of section 1505 as applied to the case of an ensign who failed on examination for pro- motion to lieutexiant (junior grade) was to delay the right of such ensign to promotion for a period of six months, and that when ultimately pro- moted he is entitled to take rank only from the date he completed three years and six months eervace in the grade of ensign. On reconsidera- tion this conclusion affirmed as the only inter- pretation of the law which would give effect to its purpose and letter as applied to these cases in which promotions depend upon length of service and not upon the officer's position in the Na\-y list. As to the second class, where pro- motions are made by seniority, if the loss of numbers is executed by reducing the officer in the lower grade [see above, ''Method of execut- ing loss of numbers "] his right to promotion de- pends upon the occurrence of a vacancy after he has again reached the top of the list, and he should be promoted to fill said vacancy, if found qualified, and should take rank froru the date of its occurrence. (File 26260-2605:2, Aug. 17, 1915.) Should an officer due for promotion by senior- ity to a grade limited in numl^er by law, be sus- pended from promotion and the loss of numbers in his case executed by reducing him in the lower grade [see above, "'Method of executing loss of numbers "], he might again reach the top of his grade prior to the expiration of his six months' period of suspension; in such event, the next vacancy occurring after he reaches the top of the list should be held open for him iintil the expiration of his period of suspension; but should he be promoted at the end of that period he should take rank from the date that his six months' period of suspension expired. In other words, the officer's promotion in such case de- pends upon his position in his grade; when he reaches the top of the list he is entitled to the next vacancy, whether or not his six months' period of suspension has expired; however, under the express terms of the law his promo- tion can not actually be accomplished during the period of six months and inasmuch as the delay in his examination is due to fault on his part and therefore is not a case covered by section 1562, Revised Statutes, when he is in fact promoted the earliest date which he may be given in his commission is that on which he became eligible for reexamination. (File 26260-2605:2, Aug. 17, 1915.) \Mien an oflicer due for promotion by sen- iority to a grade limited in number by law is suspended and subsequently is promoted to fill a vacancy occuning after the expiiation of his period of suspension, there is no wan-ant of law for gi\'ing him a date of rank prior to the occiuTence of such ^•a(•ancy. An officer may be given any date subsequent to the occurrence of the vacanc y which he is promoted to fill but can not be given a date prior thereto. Accord- ingly in such cases, where the vacancy occurs duiing the six months' period of suspension, and the officer's loss of numbers has been executed by reducing him in the lower grade [see above, "Method of executing loss of numbers"], his date of promotion may legally be fixed to cor- respond with the date that the period of sus- pension expired, but where the vacancy occuiTed after the expiration of the six months' period of suspension, the officer when promoted can not legally be given a date prior to the occitrrenceof the vacancy. (File 26260-2605 :2, Aug. 17, 1915.) An officer became due for promotion after three years' service in gi'ade. At that time he was absent on distant duty, by reason of which his examination for promotion was de- layed for a period of about ten months. He then failed professionally and was suspended from promotion for six months, after which he was examined, found qualified, and promoted: Held that under section 1505, Revised Statutes, as amended, the officer when promoted was entitled to take rank in the higher gi'ade from a date six months later than that on which he originally became due for promotion. "We should not impose a greater penalty than the statute fixes, as would be done if he is charged with the long delay for which he was not at fault. " (Toiilon v. U. S., 51 Ct. Cls., 87, 96.) The Court of Claims can not accept the view of the Comptroller of the Ti'easmy that because of an officer's failure to qualify professionally in his first examination, and because of the suspension for six months demanded by section 1505, as amended, he became ineligible for promotion until after he had successfully passed a second examination and that therefore he was not and could not be advanced in grade or rank pursuant to law prior to that date. This construction of the statute would not only suspend the officer's right to promotion for the six months stated in the act but also would defeat or wipe out the fact that he had been eligible to promotion for some ten or more months extending from the termination of his three years' ser^•ice to the beginning of the six months' period of suspension, though the delay in his first examination was owing to an enforced absence and was wholly without his fault. On the contraiy we think that the officer became eligible for promotion to the higher grade and rank when he had sei'\'ed three years in the grade of assistant surgeon and there was added to that term a period of six months, covering the time of his suspen.sion under the statute. In other words on account of his failure to cjualify when first examined the length of ser^■ic■e in his grade requii'ed of him before he was eligible for promotion to the 732 The Navy. Pt. 2. REVISED STATUTES. Sec. 1505. next higher grade was the equivalent of three years and six months instead of the three years which would otherwise have sufficed and in fixing the date of his eligibility to promotion in rank these three years and six months are properly taken as a continuous period of time. (Toulon V. U. S., 51 Ct. Cls., 87, 90; see in this connection 22 Comp. Dec, 623, disallowing claim of S. R. Canine for pay as lieutenant (junior grade) from date stated in his commis- sion, and 52 Ct. Cls., 532, allowing said claim without opinion.) The requirement of the statute that the suspension shall be for a period of six months ' 'from the date of approval of said examination " is evidently intended to remove any uncer- tainty which would otherwise arise if the ques- tion were whether the suspension dated fa-om the time of examination or the approval by the President of the examining board's report. A considerable time could arise between these two events, and the statute makes certain the date. Manifestly such suspension should op- erate equally upon the officer's actual appoint- ment and any advancement in grade or rank. But it would operate unequally if he should be suspended from appointment for six months and suspended from advancement in grade or rank for the sixteen months between the date when he first became eligible and the time of his reexamination. The six months' period of suspension can operate equally on the two features of promotion by withholding in one instance any appointment during the said period, and in the other instance by mo\'ing forward the date of eligibility to promotion for six months, or, what amounts to the same thing, by adding six months to the three years of ser\'ice. The officer was eligible to promotion when he took his first examination, and he was still eligible to promotion because of his original three years' 8er\ice when the time for his reexamination arrived; but he had been requii'ed to serve six months longer, and the length of service exacted in his case was three years and six months. (Toulon v. U. S., 61 Ct. Cls., 87, 94, 95, 96.) In the Toulon case (51 Ct. Cls., 87), the court decided against the claim of the officer for pay from the date stated in his commission for the reason that the date so stated was not three years and six months after the date he originally became due for promotion, but was approxi- mately three years and four months after said date. Subsequently a new commission was issued to the officer with date of rank three years and six months after the date that he originally became due for promotion, and the Court of Claims thereupon allowed his claim for pay fi'om the date stated in said commission. (Toulon V. U. S., 52 Ct. Cls., 333; see file 26280-68, Mar. 18, 1916. )_ An officer was commissioned as ensign to rank from June 6, 1910, and was commissioned as lieutenant (junior grade) to rank from June 6, 1913, although in the meantime he had been suspended from promotion for six months pursuant to section 1505 as amended. Upon the facts stated he was not legally entitled to rank from June 6, 1913, in the grade of lieu- tenant (junior grade), but his right to promotion under the law did not accrue until December 6, 1913. (File 26268-475, May 14, 1915.) Where an officer is promoted after six months' suspen- sion, there is no legal obstacle to assigning him a date later than that from which ofiicers below him take rank; imder such circumstances sec- tion 1505, as amended, fixes the position to which the officer is entitled in the higher grade regardless of the date stated in his commission ; but in such, case a reference note in the Navy Register to section 1505, as amended, would be desirable as explaining his status in this respect. (File 26260-2605:2, Aug. 17, 1915; 26268-475, May 14, 1915.) One year's pay when dropped from the service. — Section 1454, Revised Statutes, pro- \dding for one year's pay to officers wholly retired from service, has no application to the case of an officer of the Navy who is dropped from the service under section 1505, Revised Statutes, because of his professional disqualifi- cations to perform the duties of the position for promotion to which he has been examined. There is no provision of law authorizing the payment of one year's pay in such case. (12 Comp. Dec, 97;" Elmer v. U. S., 45 Ct. Cls., 90. Note. — These decisions were rendered prior to the amendment of sec. 1505, R. S.) Section 1505, as amended, providing that where an officer of the Navy fails in an exami- nation for promotion in the way specified there- in he shall be dropped from the service with not more than one year's pay, is indefinite, and authority is not given to the accounting officers to determine how much pay, if any, shall be received by said officer; but the discretion in determining the amount is left to the Exec- utive through the administrative department. In this case the President's approval of the examining board merely directs that the offi- cer ' 'be dropped from the service, in accord- ance with the provisions of section 1505 of the Revised Statutes, " without directing that any pay be given him. Therefore, no specific direction as to pay havdng been given, none can be allowed by the accounting officers. (18 Comp. Dec, 9'22.) Special act of Congress restoring rank. — TVTien a lieutenant (junior grade) has been suspended from promotion under section 1505, and subsequently passes a reexamination and is promoted to fill a vacancy, a later act of Congress directing the Secretary of the Navy to restore him to his original number to receive rank from the time when his loss of date began does not entitle such officer to the pay of the higher grade during the period of suspension from promotion. (16 Comp. Dec, 557.) Suspension of action by President dis- tinguished from suspension from promo- tion. — The suspension of an officer from pro- motion for one year mider section 1505, or for for four months under that section as amended by the act of March 11, 1912 (37 Stat., 73), because of not having been foimd professionally qualified for promotion, is a suspension occuning after action by the President appro\'ing such finding of disqualification, and is therefore clearly differentiated from the President's suspension of action appro\dng or disapproving the findings of the board for the periods of one year and six months, respectively, prior to his 733 Sec. 1606. PL 2. REVISED STATUTES. The Navy. a]>proval thereof. (22 Comp. Dec, 153; com- jnire Ilooj.er v. V. S., 53 Ct. ('Is., 90.") Delay in holding' examination. — It is inijx)rtaiit that in all ca.'^es where it is not absolutely impossible to do bo examinations for proniot ion be held prior to the ocourrenre of the vacancy, as is required by express provisions of la%\' with reference to promotions in the Army and Marine Corps. (File 2(i2(10-2605:2, Aug.' 17, 1915.) Revocation of President's action. — See note to section 1456, Revised Statutes, imder "Revocation of President's action. " Section 1505, as amended, pro\'ides that any officer to whom that section applies, if found not professionally qualified, ''s/!«/^ be sus- pended "from promotion for a period of six months from the date of approval of said exam- ination, and shall suffer a loss of numbers equal to the a^'erage six months' rate of ]>romotion to the grade for which said officer is imdergoing examination during the five fiscal years next preceding the date of approval of said examina- tion, and ujwn the termination of said suspen- sion from promotion he shall be reexamined, and in case of his failure upon such reexamina- tion he shall be dropped from the service with not more than one year's pay." This legisla- tion is construed by the Judge Advocate Gen- eral as vesting no discretion in the Executive with reference to the suspension of an officer who has l)een found not professionally qualified for promotion, but as mandatory that under such circumstances the officer shall be sus- pended for the period stated ; after approval of the finding of the board, no power exists in the Secretary of the Navy to review same and to revoke his approval. (File 26260-6133, Apr. 26, 1919; for contrary precedents, see record of examining board in case of I>ieut. (junior grade) Harold W. Scofield, and note to sec. 1456, R. S., imder "Revocation of President's action.") For other cases, see note to section 1500, Re- vised Statutes, under "Correction of action taken where officer not accorded the right to be present." Sec. 1506. [Advancement in number.] Any officer of the Navy may, by and with the advice and consent of the Senate, be advanced, not exceeding thirty numbers in rank, for eminent and conspicuous conduct in battle or extraordinary heroism; and the rank of officers shall not be changed except m accordance with the provisions of existing law, and by and with the advice and consent of the Senate. — (21 April, 1864, c. 63, s. 6, v. 13, p. 54. 24 Jan., 1865, c. 19, s. 1, V. 13, p. 424.) This section was expresslv amended and reen- acted by act of June 17, 1878 (20 Stat., 144), the amendment consisting in the addition of the words follo\\ang the semicolon as reproduced above. By sections 1605 and 1606, Re\ised Statutes, provision is made for the Marine Corps sim- ilar to sections 1506 and 1507, relating to the Navy; by acts of March 3, 1901 (31 Stat., 1108), and June 16, 1906 (34 Stat., 296), officers so ad\anced are to be carried as additional to the numbers of each grade in which they serve. Other provisions for advancement of officers are contained in sections 1508-1510, Revised Statutes. Re- tired officers detailed for the command of squadrons or single ships in time of war may be restored to the active list if they receive a vote of thanks of Congress for their services and gallantry in action against the enemy (sec. 1465, R. S.). Advancement of officer not subject to revision by subsequent administration. — A rational interpretation of this section is that Congress has left to the discretion of the Presi- dent the determination of what acts of heroism should be recommended to the Senate for re- ward, and in pro\'iding that the Senate must ad- vLse and consent to the advancement has indi- cated the only forum which may inquire into the wisdom with which that discretion has been exercised. The nomination for the advance- ment being in regular form, as also the resolution of the Senate and the commission, and the ad- vancement being an accomplished fact and witliin the terms of section 1506, it is not in the power of the President to inquire what was the act of heroism, or when and where it was commit- ted, which induced his predecessor and the Senate to advance the officer in numbers; their action in that matter is conclusive upon the executive department and therefore is not sub- ject to reexamination or re\dsion by the Presi- dent. (17 Op. Atty. Gen., 76. In this case an officer of the Pay Corps was twice advanced 15 numbers and it was afterwards insisted that both advancements were for the same act of heroism and that the eminent and conspicuous conduct in battle occurred at such a time as would not entitle the officer to the benefits of the law.) Date of vacancy created by advancement to liiglier grade. — The advancement of a commander to the grade of captain under sec- tion 1506, to rank from August 10, 1898, did not create a vacancy in the grade of commander until December 14, 1898, when such advance- ment was confirmed by the Senate. A lieutenant commander was promoted to be a commander in the place of the aforesaid officer, also with rank from August 10, 1898. As there were no vacan- ( ies on August 10, 1898, when these officers took rank according to their commissions, the act of June 22, 1874 (18 Stat., 191; see sec. 1561, R. S.), did not apply so as to entitle them to pay in the higher grades fi'om the time they took rank, respectively. (23 Op. Atty. Gen.", 30.) Date increased pay commences in higher grade. — ^The advancement of an officer to a higher grade pursuant to section 1506, Revised Statutes, is not a promotion in course to fill a 734 The Navy. PL 2. REVISED STATUTES. Sec. 1506. vacancy, within the meaning of section 1561, Revised Statutes, allo^ndng increased pay on promotion from date of rank; and accordingly the increased pay in snch cases commences, not at the date from which he takes rank in the higher grade but at the date of his appointment as an officer of that grade. (17 Op. Atty. Gen., 319; see also 23 Op. Atty. Gen., 30, noted above, and Young v. U. S., 19 Ct. Cls., 145. Aa to pay from date of rank in all cases of officers advanced pursuant to law,.see act of Mar. 4, 1913 , 37 Stat., 892.) Advancement under ad interim commis- sion. — The advancement and promotion of officers pursuant to section 1506, Revised Stat- utes, can not be accomplished by the President alone, and ad interim commissions issued to such officers did not create vacancies in their offices, as such advancement and promotion can be only with the advice and consent of the Sen- ate. (23 Op. Atty. Gen., 30, approving: 6 Comp. Dec, 7; see also Peck v. U. S., 39 Ct._ Cls., 125.) The last clause of section 1506 forbids that the rank of any officer be changed except with the advice and consent of the Senate. Therefore as the advancement of certain officers under section 1506 would change their respective grades and ranks, it could not be made by the President alone. The Constitution, Article II, section 2, authorizing the President to fill up all vacancies that may happen dming the recess of the Senate, does not confer upon the President the power to create such vacancies. (23 Op. Atty. Gen., 30.) Rear Admii-al William T. Sampson was ad- vanced eight nvmibers and appointed a rear- admii-al in the Navy under the provisions of sec- tion 1506, Revised Statutes, from the 10th day of August, 1898, and an ad inteiini commission was issued to him from that date. This ad- vancement the Senate failed to confirm prior to adjournment. Advancement in numbers under this section does not create a vacancy within the meaning of the Constitution from the time when the President decides to recommend such advancement, nor is any vacancy created prior to the date when the Senate concurs in the President's recommendation. Accordingly held that no authority exists for pajdng him as rear admiral from the date when he was commis- sioned as such, the Senate not having consented to the advancement. (6 Comp. Dec., 7.) Consent of the Senate indirectly given. — A commander in the Navy, Bowman II. McCalla, was nominated by the President for advancement five numbers and appointed as a captain; at the same time a lieutenant commander, .lohn E. Pillsbury, was nominated ■'to be a commander from the 10th day of August, 1898, vice Commander Bowman H. McCalla, advanced and promoted;" the Senate confirmed the nomination of Pillsbury ■without acting upon the nomination of McCalla. Held, that the confirmation of Pillsbury operated as the adA'ice and consent of the Senate to the advancement and promotion of McCalla. No particular form, set phrase, or language is recjuired by which the Senate shows its assent to a presidential appointment; the President had already nominated McCalla to be a captain and all that was necessary to make him such and to cause a vacancy in his office of com- mander was that the Senate consent thereto; and when the Senate confirmed another officer, expressly asserting that it was to fill the place of McCalla, promoted, and which promotion could not be Avdthout its consent, it necessarily and thereby asserted its consent to his pro- motion; as the Senate could not increase the number of commanders, its confirmation of Pillsbury to be a commander necessarily either removed McCalla or promoted him, and the Senate said that it was in the place of McC-alla advanced and promoted. (23 Op. Atty. Gen., 30.) Capt. Francis J. Iligginson was nominated by the President for adA-ancement in numbers pursuant to section 1506, so as to place him at the head of the list of captains; he was then nominated for promotion to commodore "vice Commodore Winfield S. Schley, advanced and promoted," to rank from August 10, 1898. On December 14, 1898, the Senate confirmed Capt. Higsinson's promotion to the grade of com- modore, but took no action upon the proposed advancement in numbers, either in his case or that of Commodore Schley. The confirmation of Capt. Higginson's promotion not only made him a commodore from the date of the Senate's action, but in effect advanced Conmiodore Schley so as to make a vacancy which the promotion operated to fill. (8 Comp. Dec, 7; see also 8 Comp. Dec, 302.) Capt. Francis J. Iligginson was nominated by the President for advancement in numbers pursuant to section 1506, so as to place him at the head of the list of captains; he was then nominated for promotion to commodore to fill a vacancy. On December 14, 1898, the Senate confirmed Capt. Higginson's promotion to the grade of commodore, but took no independent action upon the nomination for his advance- ment in numbers in the grade of captain. Under the law as construed by the Navy Department Capt. Higginson was not entitled to and there was no authority for his promotion to be a com- modore at the time he was so promoted except according to seniority; and as he would not be at the head of the captain's grade, entitled by seniority to promotion to commodore, imless the Senate concurred in his advancement in numbers in the grade of captain, the Navy Department was of opinion that when the Senate confirmed the promotion of Higginson to fill a vacancy to which he could only be entitled upon its confirmation of his advance- ment in numbers, it necessarily and thereby asserted its consent to his advancement in numbers: ZieW, that "it must be assumed that the Senate in confirming the nomination of Capt. Higginson to be a commodore intended to do ever^-thiiig necessary to that confirmation, and that it intended to act strictly in accord- ance with law;" accordingly, when the Senate confirmed Capt. Higginson's nomination to be a commodore it thereby consented to and con- firmed his nomination for advancement in numbers in the grade of captain, which was necessary to legally accomplish his promotion to the grade of commodore. (8 Comp. Dec, 302, modifj-ing 8 Comp. Dec, 7.) Loss of pay as result of advancement. — Commander Bowman H. McCalla, advanced in numbers under section 1506 so as to be a captain, 735 Sec. 1609. PL 2. REVISED STATUTES. The Navy. Was not entitled to the pay of captain from Aupuat 10, 18!).S, the date stated in his com- mission, but only from December 14, 1898, when the Senate indirectly consented to his adAancement, this rotwithstanding the fact that in the meantime a vacancy occurred in the prade of captain by reason of retirement for which Commander McCalla would have been eligible by seniority had he not been advanced under section 1506, and which would have entitled him to increased pay as captain from a date prior to December 14, 1898; and in fact an ofiicer junior to Commander McCalla was pro- moted to said vacancy with pay from a date prior to that on which Commander McCalla was held entitled. It thus happened that the officer intended to be rewarded was in effect punished by the postponement of his pay as cap- tain to a later date than the date from which he would have been promoted in due course; while there is much equity in this consideration, it can not affect the results of the transaction which actuallv occurred. (7 Comp. Dec, 865. ) Precedence of ofl&cer advanced in num- bers. — Wliere an olhcer is advanced above 30 officers, who were his semors, it is convenient to insert in his commission a date between that of the commission of the highest of the 30 officers whom he is to outrank and that of the lowest next above him, in order to indi( ate his position and rank with reference to the other officers of his grade. This might be otherwise expressed, to vni, by inserting the names of the two officers between whom he is to take his new rank. However, while the commission may thus be given a retroactive effect for purposes of precedence, the "date of commission" in such cases for purposes of computing longevity pay imder the statute which says "five yeara after date of commission," is the true date of the instrument, which is the day of its execu- tion. (Young V. U. S., 19 Ct. Cls., 145, 152; see in this connection note to sec. 1467, R. S.) Sec. 1607. [Promotion when grade is full.] Aiiy officer who is nominated to a liigher grade by the provisions of the preceding section, shall be promoted, notwithstanding the number of said grade may be full; but no further promo- tions shall take place in that grade, except for like cause, until the number is reduced to that provided by law. — (24 Jan., 1865, c. 19, s. 2, v. 13, p. 424. 22 June, 1874, c. 392, v. 18, i). 191.) See note to section 1506, Revised Statutes. Additional number officers in grade of rear admiral. — On February 26, 1901, Capts. Robley D. Evans and Henry G. Taylor were confirmed by the Senate for advancement in numbers and promotion to rear admiral pur- suant to section 1506, Revised Statutes. Under the law these officers are not to be treated as occupying numbers among the 18 rear admirals allowed for the grade, but are carried as addi- tional to the numbers of that grade. The ad- dition to the grade of rear admiral by reason of advancement imder section 150G does not ad- vance the officers already in the lower half of that grade to the upper half, so as to affect their pay. The act of March 3, 1899, section 7 (30 Stat., 1005), fixing the pay of the lower half of the grade of rear admiral at the same rate as that received by brigadier generals of the Army, had particular reference to the 9 lower numbers of the 18 rear admirals provided for in that act. Accordingly held that a rear admiral of the 9 lower numbers was not advanced in numbers by the addition to the grade of rear admiral of Evans and Taylor but is still in the 9 lower numbers of that grade as constituted by the act of March 3, 1899, notwithstanding that as a re- sult of these appointments there are more than 9 rear admirals lower in number than he. (8 Comp. Dec, 7.) The advancement of an officer in the grade of rear admiral from the lower half of that grade to the upper half is a promotion within the meaning of the act of March 3, 1901 (31 Stat., 1108). Rear Admiral Evans, being carried as an additional number pursuant to the act of March 3, 1901, is advanced contemporaneously with the officer next above him in rank and should be paid as a rear admiral of the upper half from the date when the officer next above him is so advanced in regular coiu^e. (8 Comp. Dec, 689.) Sec. 1508. [Officers receiving thanks of Congress.] Any line officer, whether of volunteers or of the regular Navy, may be advanced one grade, if, upon recom- mendation of the President by name, he receives the thanks of Congress for higldy distinguished conduct in conffict with the enemy or for extraordinary heroism in the line of his profession. — (16 July, 1862, c. 183, s. 9, v. 12, p. 584, 24 Jan., 1865, c. 19, s. 2, v. 13, p. 424. 25 July, 1866, c. 231, s. 1, v. 14, p. 222.) Thanks of Congress, effect of: See sections 1365, 1446, 1465, 1509, 1510, Revised Statutes. Sec. 1509. [Effect of vote of thanks.] A vote of thanks by Congress to any officer of the Navy shall be held to affect such officer only; and whenever, as an incident thereof, an officer who would otherwise be retired is retained on the active list, such retention shall not interfere with the regular promotion of others 736 The Navy. Pt. 2. REVISED STATUTES. Sec. 1510. who would otherwise have been entitled by law to promotion. — (1 July, 1870, Res. 96, s. 1, V. 16, p. 384.) See note to preceding section, and section 1446, Revised Statutes. Sec. 1510. [Vacancies occasioned by death, &c., of oflQicers thanked.] No promotion shall be made to fill a vacancy occasioned by the final retirement, death, resignation, or dismissal of an officer who has received a vote of thanks, unless the number of officers left in the grade where the vacancy occurs shall be less than the number authorized by law. — (1 July, 1870, Res. 96, s. 1, v. 16, p. 384.) See note to section 1508, Revised Statutes. 737 CHAPTER FIVE. THE NAVAL ACADEMY. Sec. 1511. Where established. 1512. Title of students. 1513. Number of midshipmen. 1514. Nomination of candidates. 1515. Examination of candidates. 1516. Second recommendation. 1517. Qualifications. 1518. Appropriations, how applied. 1519. j\Iidshipmen found deficient. 1520. Academic course. Sec. 1521. Appointments on graduation. 1522. Cadet engineers. 1523. Number and appointment of. • 1524. Academic course of. 1525. Examinations of. 1526. Studies not to be pursued on Sunday. 1527. Storekeeper at the Academy. 1528. Professors of ethics, Spanish, and draw- ing. Sec. 1511. [Where established.] The Naval Academy shall be established at Annapolis, in the State of Maryland. — (21 May, 1864, c. 93, s. 4, v. 13, p. 85.) Historical note. — The first statutory pro- vision for a naval academv was made by act of Congress, August 10, 1846 (9 Stat., 100, 101), when the modest sum of $28,200 was appro- priated "for repairs, improvement, and instruc- tion at Fort Severn, Annapolis, Maryland." Prior to that time instruction had been given to midshipmen in the naval sersdce in a desultory manner — sometimes on shipboard and sometimes at various places on snore when they were not on sea duty, and this seems to have been done without direct authority of Congress, but by what a writer has termed "wise departmental legislation." During the first few years of the Naval Academy its stu- dents were taken directly from midsliipmen in the Na%'j% some of whom had been several years in the sendee. The act of January 2, 1813 (2 Stat., 789), authorizing the construc- tion of four 74-gun sliips, provided that each of them should carry a schoolmaster, and each ship had 20 midshipmen who were presumably under the instruction of this schoolmaster. Our Naval Academy is a growth and an evo- lution, and in that respect somewhat different from the Military Academy. Its first pupils were officers already in the naval servdce, holding their warrants from the President. They have gradually ceased to be midshipmen in the active sendee belonging to the line, and are now naval students the same as cadets at the ^lilitarj' Academy are military students. (Weller v. U. S., 41 Ct. Cls., 324.) Regulations of the Naval Academy. — The Naval Academy, whose existence is due to a wise act of mere departmental adminis- tration on the part of Secretary Bancroft in 1845, owes its organization substantially to regulations adopted from time to time by him and his successors. The act of July 16, 1862, chapter 183, is the earliest legislation that concerns the interior management of the Academy, and what has been since enacted touches that management only here and there incidentally. Inasmuch, therefore, as Congress has authorized the successive heads of the Navy Department to govern the academy by regulations, and has interfered therewith only, so to say, desultorily, the rule of statutory construction, which forbids any disturbance of previously existing statutory or common law by a new statute further than is necessary to its reasonable operation, must be applied here so as to prevent any unnecessary disturbance of previously existing regidations by statutory enactment. (15 Op. Atty. Gen., 637.) Where regulations are issued by the Secretary of the Navy relating to examinations at the Naval Academy, it can not for a moment be doubted that the existence of such regulations was known to Congress when enacting legis- lation referring to the "final graduating ex- amination " of midshipmen, and they afford a clear explanation of the use by Congress in such legislation of the words ' ' final graduating examination." (Benjamin v. U. S., 10 Ct. Cls., 474.) The Secretarj^ of the Navy has plenaiy authority over the regulations of the Naval Academy. He makes the regulations and can modify or change them at will, providing no statute is thereby trenched upon. The reg- ulations of the Naval Academy do not, strictly speaking, form a part of the regulations for the government of the Navy; they are not em- bodied therein and do not come under section 1547, Revised Statutes, giving to Navy reg- ulations the force of law. The regulations of the academy are not directly approved by the President, as are the Navy Regulations. (36 J. A. G. letter book, 195, Mar. 19, 1907.) The Naval Academy regulations are not is- sued under any explicitstatute. The Academy being under nav^al control is administered by the Secretary of the Navy, and it is assumed that he makes the regulations of the Academy under his general powers as Secretary; but there are certain clauses in the statutes touch- ing more or less directly upon the matter, such as sections 1515 and 1526, Revised Stat- utes, etc. Duly formulated regulations being essential to the proper administration of such 738 The Navy. Ft. 2. REVISED STATUTES. Sec. 1512. an establishment as the Naval Academy, the effect of the statutes on the subject is to place the power of making such regulations in the hands of the Secretary of the Nax'y, subject to the general direction of the President. Such regulations must, of course, be made in further- ance and not in A-iolation or disregard of statu- tory pro\asions. (36 J. A. G. letter book, 195, Mar. 19, 1907; see also sec. 161, R. S., and notes thereto.) Under section 1547, Re\dsed Statutes, the Secretary of the Navy, with the approval of the President, may issue regulations and in- structions for the Navy, and the regulations of the Naval Academy pro\T.ding for the dis- missal of midsliipmen were presumably made pursuant to such power. (Weller v. U. S., 41 Ct. Cls., 324.) Board of Visitors, to visit the Naval Acad- emy, the date of the annual visit to be fixed by the Secretarv of the Naw, is pro^^.ded for by act of August 29, 1916 (39 Stat., 608). Said board is to consist of 7 persons appointed by the President; 4 Senators and 5 Members of the House of Representatives, appointed respec- tively by the Vice President and Speaker; and of the chairmen of the Committees on Naval Affairs of the Senate and House. Naval Academy Band, composed of en- listed men of the Navy, was authorized by acts of April 12, 1910 (36 Stat., 297), and July 11,1919 (41 Stat., 152); see also act of May 13, 1908 (35 Stat. ,153), as to competition of the band as then organized with lo< al civilian musicians, and act of May 18, 1920 (41 Stat., 602, sec. 6), as to tem- porary increase in pay. Naval Academy Chapel. — Restrictions upon use of crypt and -nindow spaces for me- morials are contained in act of March 3, 1909 (35 Stat., 773). Superintendent of Naval Academy. — See note to section 1556, Revised Statutes, under "Additional pay for special duty." Sec. 1512. [Title of students.] The students at the Naval Academy shall be styled cadet midshipmen. — (15 July, 1870, c. 295, s. 12, v. 16, p. 334.) August 31, 1852, section 1 (10 Stat., 100), that ' ' no appointment of midshipmen, acting mid- shipmen, or pupil, at any naval school in the Navy, shall be made, unless recommended by the member of Congress representing the dis- trict in which the applicant resides," etc. Cadet-midshipmen. — Section 12 of the act of July 15, 1870 (16 Stat., 321), later embodied in section 1512 of the Revised Statutes, changed the title of students at the Naval Academy to "cadet-midshipmen." That act divided the grade of midshipman on a marked and conveni- ent line, and styled all below that line as cadet- midshipmen, but relative to their new status it was enthely silent. This might with much reason be regarded, nothing to the contrary appearing, as the creation of a new grade in the line of the Navy for cadet midshipmen. A failure, however, to enumerate it as such in the list of grades in that act, and also in the subsequent list of the Revised Statutes, pre- cludes that construction. It left them, how- ever, with the same duties, the same pay, the same mode of appointment, and subject to the same naval discipline and control as before. WTiatever doubt might arise as to the particular status of students under the new title, it is quite certain that they still constituted, in some capacity, a part of the Navy. (Baker v. U. S., 23 Ct. Cls., 181; affirmed, 125 U. S., 646.) After the 12th section of the act of July 15, 1870 (16 Stat., 334), students at the Naval Academy were to be styled "cadet-midship- men," and after graduation were to be appoint- ed midshipmen and promoted to the grade of ensign as vacancies might occur. Prior to that act students at the Naval Academy were styled midshipmen. The form of appoint- ment was the same before and after the act; in both cases it was signed by the Secretary of the Na\y, by direction of the President, and the positions and duties were precisely the same. Calling the student a cadet midshipman in- stead of a midshipman, without changing his A separate class of students at the Naval Academy, to be styled "cadet engineers," was pro\ided for by sections 1522-1524, Re\'ised Statutes. By act of August 5, 1882 (22 Stat., 285), the title of all under- graduates at the academy was changed to "naval cadets," and by act of July 1, 1902 (32 Stat., 686), the title "naval cadet" was changed to "midshipman." Midshipmen were first provided for in the act of Congress pro\'iding a naval armament, March 27, 1794 (1 Stat., 350), and they were therein denominated "warrant officers." By the act of July 16, 1862 (12 Stat., 583), mid- shipmen were made ninth in grade in the active list of line officers of the Na-\y. (Weller v. U. S., 41 Ct. Cls., 324, r. S. v. Cook, 128 U. S., 254.) The first pupils of the Naval Academy were officers already in the naval service, holding their warrants from the President. They have gradually ceased to be midshipmen in the ac- tive 6er^ice belonging to the line, and are now naval students the same as cadets at the Mili- tary Academy are military students. (Weller V. U. S., 41 Ct. Cls., 324.) Section 1 of the act of July 16, 1862 (12 Stat., 583), created the grade of midshipman as one of the nine grades of the active list of line of- ficers of the Navy, and section 11 of the same act declared that students at the Naval Acad- emy shall be stvled midshipmen. (U. S. v. Baker, 125 U. S.,"'646.) Acttng midshipmen. — By act of July 14, 1862, section 8 (12 Stat., 565),"the President was authorized "to annually appoint ten acting midshipmen for education at the Naval Acad- emy," who shall be selected from the sons of officers or enlisted men in the Army, Navy, or Marine Corps; by act of July 28, 1866, section 8 (14 Stat., 322), it was provided that "midship- men and acting midshipmen in the Navy of the United States shall be entitled to one ration, or commutation therefor." (See sec. 1577, R. S.) It had pre'viously been provided, by act of 739 Sec. 1512. Pi. 2. REVISED STATUTES. The Navy. l)Osition or his (hities, did not make his status dilfcri'iit from what it was before. (U. S. v. Cook, 128 U. S., 254.) If the law designates a cadet as a midship- man, the designation is an otiicial one. The <|uaIifiration of cadet-midshipman was used for the sak(> of distinction, to distinguish one kind of midsliipman from another, a midshipman at school from a midshipman aboard ship. (U. S. V. Cook, 128 U. S., 254.) Prior to section 12 of the act of July 15, 1870, (16 Stat., 334), tlie form of appointment issued to a mi.lshipman at the Naval Academy stated that he was "appointed to the grade of mid- shipman in the United States Navy." After the passage of that act the form of appointment was changed by striking out the w^ords, "ap- pointed to the grade of midshpiman,"' and in- serting the words, "appointed a cadet-mid- shipman." (U. S. V. Baker, 125 U. S., 646.) Naval cadets. — The act of August 5, 1882 (22 Stat., 284), provided "that hereafter there shall be no appointments of cadet-midshipmen or cadet-engineers at the Naval Academy, but in lieu thereof naval cadets shall be appointed from each Congressional district and at large, as now provided by law for cadet-midshipmen, and all the undergiaduates at the Naval Academy shall hereafter be designated and called 'naval cadets.' " One main object of this act was to aboUsh the distinctions pre- viously made by law between cadet-engineers and cadet-midshipmen, and for the future to merge both classes in the new designation of naval cadets. The previous differences be- tween them grew out of the separate provi- sions as to their number, their manner of ap- pointment, their course and term of study, and their pay after their four years' course at the Academy. (U. S. v. Redgrave, 116 U. S., 474.) The purpose of the act of 1882 was to abolish the distinction in name between cadet-engi- neers and cadet-midshipmen, and to pro\ide for the two but one classification, known to the law as "naval cadets." (Harmon v. U. S., 23 Ct. Cls., 132.) The act of August 5, 1882 (22 Stat., 284), effected a change in the name of students at the Naval Academy, but did not alter their legal status, which remained the same as before. (BComp. Dec, 410.) Congress has the power to change the name of students at the Naval Academy and to modify the scope of their duties, as it did by the act of 1882; by so doing it did not under- take to name the incumbent of any office and assume the power of appointment thereto, which belonged to the Executive. (Crenshaw r. U.S., 134 U.S., 99.) Title of midshipinan revived. — Section 1362 of the ReA-ised Statutes of 1878 named the active list of officers of the Navy, and made midshipmen the eleventh of the list of the different grades therein pro\ided for. The naval appropriation act of Alarch 3, 1883 (22 Stat., 472), changed the title of "midshipman "' to "ensign," the effect of which was to dis- continue the grade of midshipman in the Navy. The act of June 26, 1884 (23 Stat., 60), pro\ided that all graduates of the Naval Academy on the completion of the six years' course should be commissioned as ensigns in the Navy, and the grade of junior ensign was therein abolished. Section 7 of the act of March 3, 1899 (30 Stat., 1004), known as the Navy personnel act, named the list of line officers of tlie NaAy, including ensigns, and the name of midshipman is not found therein. Th^- act of July 1, 1902 (32 Stat., G.Sli), changed the title of "naval cadet" to "midshipman." It thus appears that since the act of March 3, 1883, there has been no such rank as midship- man in the United States Navy, except as that title has been given to students at the Naval Academy. (Weller v. U. S., 41 Ct. Cls., 324.) Status of students at the Naval Acad- emy.— A cadet student at the Naval Academy is an officer of the NaAy within the meaning of the provision in the act of March 3, 1883 (22 Stat., 473), respecting the longeAity pay of officers and enlisted men in the Army or Navy. (U. S. v. Cook, 128 U. S., 254, follow- ing U. S. V. Baker, 125 U. S., 646, and U. S. V. Hendee, 124 U. S., 309. But see act of Mar. 4, 1913, 37 Stat., 891, pro\dding that "hereafter the service of a midshipman at the United States Naval Academy, or that of a cadet at the United States Military Academy, who may hereafter be appointed to the United States Naval Academy, or to the United States Military Academy, shall not be counted in computing for any purjjose the length of service of any officer in the Navy or in the ^Marine Corps.") That a midshipman is an officer has been understood ever since there was a Navy. lie is not one of the common seamen. His name indicates a middle position, between that of a superior officer and that of the common seaman. (U. S. v. Cook, 128 U. S., 254.) It is not to be doubted that a midshipman is an officer, and this has been authoritatively decided respecting undergraduates at the Naval Academy under various laws for the benefit of "officers of the Na\^." (25 Op. Atty. Gen., 579.) It is true that a student is at the Naval Academy only for education, but the educa- tion is at the request and for the benefit of the Government rather than of himself. A raw recruit is not sent to the front until he has had a course of instruction, discipline, and drill in camp. That the time thus spent would constitute ser\ice in the Army no one would doubt. Education at the Academy, though of a higher order, is required and justi- fied by the same principle. (Baker v. U. S., 23 Ct. Cls., 181; affirmed, 125 U. S., 646.) Both cadets in the Army and cadets in the Navy are appointed in pursuance of the Con- stitution, Article II, section 2, pro\idiiig that Congress may vest the appointment of inferior officers in the President alone or in the heads of departments; those in the Army by reason of express authority conferred on the President (sec. 1315, R. S.), those in the Navy by reason of authority conferred on the Secretary of the Navy (sec. 1514 R. S.). The status of mili- tary cadets the same as that of naval cadets is that of "officers" in the Constitutional sense of the word as distinguished from employees. (10 Comp. Dec, 795. See also note to sec. 1514, R. S.) 740 The Navy. Ft. 2. REVISED STATUTES. Sec. 1513. They are not merely students being educated at the expense of the Government, but are officers in the na\-al ser\T.ce, and as such their salary, fixed by law, can no more be increased or diminished than can the salary of any other officer in the naval sendee which is fixed by law. Accordingly, where granted leave of absence by the Secretary of the Na-\-y for sick- ness or other cause, they are still entitled to pay duiing the period of such leave at the same rate they were recei\TJig at the academy. (8Comp. Dec, 410.) It is impossible not to conclude that the claimant continued to be, after the passage of the act of 1870, as he was prior to its passage, an officer of the Na^-y, on the active list, and ser\'ing as such an officer by \'irtue of his ha\'ing been appointed a midshipman and continuing to be a student in the Naval Academy, even though he might have been properly styled, after the passage of the act of 1870, a cadet-mid- shipman. (U. S. V. Baker, 125 U. S., 646.) ^\^late\•er doubt may arise as to the particular status of students under the new title, it is quite certain that they still constitute, in some capacity, a part of the Navv. (Baker v. U. S., 23 Ct. Ols., 181; affirmed, 125 U. S., 646.) In the computation of their longe^-ity pay, officers of the Naval Reserv'e Force are entitled to credit for previous sendee in the Navy as cadet-engineer. (24 Comp. Dec, 629.) A naval cadet traveling under orders is en- titled to mileage under the laws pro\T.ding mileage for officers of the Na\'y traveling under orders. (Fitzpatrick v. U. S., 37 Ct. Cls., 332.) Midsliipmen at the Naval Academy are not enlisted in the ser^ice, but are appointed as midshipmen at the Naval Academy for train- ing. Not being enlisted, they can not there- fore be classified as ''soldiers, sailors, or ma- rines" within the meaning of laws granting preference in appointment to the ci^'il sendee of honorably discharged soldiers, sailors, or marines. (P'ile 5252-131, Oct. 11, 1919. Com- pare file 28762-649: 2, Apr. 9, 1920, holding that the act of July 11, 1919, 41 Stat., 37, respecting preference in civil sendee appointments, is broad enough to include all members of the military forces of the United States who serve on active duty as such.) Midshipmen at the Naval Academy are of- ficers on the active list of the Na^'y within the meaning of the pro\dso in the act of May 13, 1908 (35 Stat., 127), w^hich allows a gratuity of six months' pay to be paid to the wddow or other designated beneficiary upon the death of an officer on the active list of the Na\-y. (15 Comp. Dec, 39.) The Naval Academy is part of the machinery of the Na^y. The midshipmen are appointed by the Secretary of the Navy by direction of the President. They are required to engage to serve for eight years unless sooner discharged by competent authority (but see note to sec. 1514, R. S.). They must take an oath and bind themselves to bear true faith and allegiance to the United States, and that they will serve them honestly and faithfully against all their ene- mies, and that they will obey the orders of the President of the United States and the orders of the officers appointed over them according to the rules and articles for the government of the United States Na\y. They are required to wear the uniform prescribed by the naval authorities. They are subject to naval dis- cipline. They are borne upon the Navy Regis- ter as a part of the acti\-e list of the line of the Na\'y . They are upon the pay roll ; their salary is fixed by law, and they are paid from the appropriation, "Pay of the Na\y." That they are in the naval sendee is not thought question- able. They are by law officers in a qualified sense. They are not now and never were com- missioned officers. While they are not officers witliin the meaning of article 36, section 1624, Re\dsed Statutes, as was decided in the case of Weller v. U. S. (see note to sec. 1519, R. S.), yet, following the reasoning of the Supreme Court in the case of United States v. Cook (above noted), held, that they are officers on the active list of the NaN'y within the meaning of the act of May 13, 1908 (35 Stat., 127), pro^dd- ing for pa-\Tnent of death gratuity. (20 Comp. Dec, 39.)' Students at the Naval Academy, designated as midshipmen by the act of July 1, 1902, are officers of the Navy within the meaning of section 1586, Re%dsed Statutes, which prohibits the allowance of expenses incurred by any officer of the Navy for medical attendance, unless the attendance of a naval medical officer could not have been had. (9 Comp. Dec, 375.) For other cases, see notes to sections 1514, 1519, and 1520, Re\dsed Statutes. Sec. 1513. [Number of midshipmen. Repealed.] This section provided as follows: "Sec. 1513. There shall be allowed at said Academy one cadet midshipman for every Member or Delegate of the House of Represen- tatives, one for the District of Columbia, and ten appointed annually at large." — (2 !Mar., 1867, c. 174, s. 8, v. 14, p. 517. 15 July, 1870, 0. 295, s. 12, V. 16, p. 334.) It was expressly amended by act of June 17, 1878 (20 Stat., 143), to read as "follows: "Sec. 1513. There shall be allowed in said Academy one cadet-midshipman for exery Member or Delegate of the House of Represen- tatives, one for the District of Columljia, and ten appointed at large: Provided, however, That there shall not be at any time more in said Academy appointed at large than ten: but the pro\dsions of this section shall not be construed to apply to cadet-midshipmen appointed at large now in said Academy." Subsequent amendments were made by the following laws: Act of July 1, 1902 (32 Stat., 686): ''That until the year nineteen hundred and fourteen, i n addition to the naval cadets now authorized by law (the title ha\dng been changed by this act to midshipmen), the President shall ap- point five midshipmen, and there shall be ap- pointed from the States at large, upon the rec- ommendation of Senators, two midshipmen for each State " Act of March 3, 1903 (32 Stat., 1197): "There shall be allowed at the Naval Academy two midshipmen for each Senator, Representative, 741 Sec. 1513. Pt.2. REVISED STATUTES. The Navy. and Doletrate in Contrressi, two for the District of Columl)ia, and live each year at lars^e * * *. That the provisions of this Act for the increase of appointments of midshipmen to the Naval Academy sliall continue in force until the tiiirtieth day of .1 uno, nineteen hundred and thirteen; and tliereafter one midshipman, as now proAaded by law, shall be appointed for each Senator, Representative, and Delegate in ConcTcss. " Act of July 9, 1913 (38 Stat., 103); "That after June thirtieth, nineteen hundred and thirteen, and until June tiiirtieth, nineteen hundred and nineteen, there shall be allowed at the Naval Academy, two midshipmen for each Senator, Representative, and Delegate in Contrress, one for Porto Rico, two for the Dis- trict of Columbia, and ten appointed each year at large." Act of June 30, 1914 (38 Stat., 410): "Here- after in addition to the a])pointments of mid- ehi]imen to the United States Naval Academy as now prescribed by law, the Secretary of the Navy is allowed fifteen appointments annually from the enlisted men of the Navy who are citi- zens of the United States and not more than twenty years of age on the date of entrance to the Naval Academy, and who shall have served not less than one year as enlisted men on the date of entrance: Provided, That such appoint- ments sliall be made in the order of merit from candidates who have in competition with each other passed the mental examination now or hereafter required by law for entrance to the Naval Academy, and who pased the physical examination required before entrance under existing law.' All the above laws -were repealed and superseded by the act of February 15, 1916 (39 Stat., 9), which provided as follows: "That hereafter there shall be allowed at the United States Naval Academy three mid- shipmen for each Senator, Representative, and Delegate in Congress, one for Porto Rico, two for the District of Columbia, ten appointed each year at large, and fifteen appointed annu- ally from enlisted men of the Navy as now authorized by law. "Sec. 2. That all acts or parts of acts incon- sistent with the provisions of this act are hereby repealed." Amendments to the act of February 15, 1916, were contained in the following laws: Act of August 29, 1916 (39 Stat., 576): "Hereafter in addition to the appointment of midshipmen to the United States Naval Academy, as now prescribed by law, the President is hereby allowed fifteen appoint- ments annually instead of ten as now pre- scribed by law, and the Secretary of the Navy is allowed twenty-five appointments annually, instead of fifteen as now prescribed by law, the latter to be appointed from the enlisted men of the Navy who are citizens of the United States, and not more than twenty years of age on the date of entrance to the Naval Academy, and who shall have served not less than one year as enlisted men on the date of entrance: Provided, That such appointments shall be made in the order of merit from candidates who have in competition with each other passed the mental examination now or hereafter required by law for entrance to the Naval Academy, and who passed the physical examinations re- quired before entrance under existing laws." Act of March 4, 1917 (39 Stat., 1182): "Hereafter, in addition to the appointment of midfjhipmon to the United States Naval Academy, as now prescribed l)y lav.-, the Secretary of the Navy is allowed one hundred appointments annually, instead of twenty-five as now prescribed by law, to lie appointed from the enlisted men of the Navy who are citizens of the United States, and not more than twenty years of age on the date of entrance to the Naval Academy, and who shall have served not less than one year as enlisted men on the date of entrance: Provided, That such appointments shall be made in the order of merit from candidates who have, in compe- tition with each other, passed the mental examination now or hereafter required by law for entrance to the Naval Academy, and who passed the physical examination before entrance under existing laws. " Act of April 25, 1917 (40 Stat., 38). "That, in addition to the number of mid- shipmen now authorized by law, there shall be appointed during the period from the date of passage of this act until September first, nine- teen hundred and eighteen, one additional midshipman for each Senator, Representative, and Delegate in Congress. Nominations shall be made for these vacancies by the Senators, Representatives, and Delegates concerned for any regular or special examination that may be ordered before that date." The act of February 15, 1916, and amendments thereto (except theact of March 4, 1917) were repealed and superseded by the act of December 20, 1917 (40 Stat., 430), which provided as follows: "That hereafter there shall be allowed at the United States Naval Academy five mid- shipmen for each Senator, Representative, and Delegate in Congress, one for Porto Rico, two for the District of Columbia, fifteen appointed each year at large, and one hundred appointed annually from enlisted men of the Navy, as now authorized by law. "Sec. 2. That all acts or parts of acts in- consistent with the provisions of this act are hereby repealed." The act of December 20, 1917, was expressly amended by the act of July 11, 1919 (41 Stat., 140), which provided as follows: "Section 1 of the act entitled 'An Act to in- crease the number of midshipmen at the United States Naval Academy,' approved December 20, 1917, is hereby amended so as to read as follows: That hereafter there shall be allowed at the United States Naval Academy five mid- shipmen for each Senator, Representative, Delegate in Congress, and Resident Commis- sioner from Porto Rico, and five for the District of Columbia, fifteen appointed each year at large, and one hundred appointed annually from enlisted men of the Navy, and members of the Naval Reserve Force on active duty, as now authorized by law." Midshipmen appointed from Porto Rico.— The act of Maich 3, 1903 (32 Stat., 1198), provided as follows: "That hereafter there shaU be at the Naval Academy one 742 The Navy. PL 2. REVISED STATUTES. Sec. 1513. midshiiJman from Porto Rico, who shall be a native of said island, and whose appointment shall be made by the President on the rec- ommendation of the Governor of Porto Rico." The act of March 3, 1903, was not repealed by the act of February 15, 1916 (39 Stat., 9), which increased the niunber of midshipmen and pro- vided for the appointment of "one for Porto Rico," but did not provide that the appointee should be a native of the island or that he should be nominated by the Governor of Porto Rico as pro^^.ded by the act of 1903. The two provisions are not inconsistent and should be construed as authorizing the appointment of one midshipman from Porto Rico in addition to the native of the island who must be recom- mended by the Governor. The language of the act of February 15, 1916, "one for Porto Rico," was repeated in the act of December 20, 1917, which latter act also did not repeal the act of March 3, 1903, relating to the appoint- ment of a midshipman from Porto Rico. As a consequence, from March 3, 1903, until Febru- ary 15, 1916, only one midshipman from Porto Rico was authorized by law; he could be ap- pointed only upon recommendation of the Governor and was required to be a native of the island. From February 15, 1916, until July 11, 1919, two midshipmen were authorized, one required to be a native of the island and to be appointed only on the recommendation of the Governor. On the last mentioned date Con- gress amended the act of December 20, 1917, so as to pro\'ide for the appointment of five midshipmen on the recormnendation of the Resident Commissioner from Porto Rico. The result of this amendment is to authorize a total of six midshipmen from Porto Rico, five of whom are to be appointed on the nomination of the Resident Commissioner from Porto Rico and need not be natives of the island, the other to be a native of Porto Rico appointed under the act of March 3, 1903, on the recommendation of the Governor. (File 5252-126, Aug. 1, 1919.) Students from the Philippine Islands. — The act of August 29, 1916 (39 Stat., 576), con- tained the following pro\T.sion: "That here- after the Secretary of the Na\y is authorized to permit not exceeding four Filipinos, to be de- signated, one for each class, by the Governor General of the Philippine Islands, to receive instruction at the United States Naval Academy at Annapolis, Maryland: Provided, That the FilipinGS undergoing instruction, as herein authorized, shall receive the same pay, allow- ances, and emoluments, to be paid out of the same appropriations, and shall be subject to the same rules and regulations governing admission, attendance, discipline, resignation, discharge, dismissal, and graduation as are authorized by law and regulation for midshipmen appointed from the United States, but the Filipino mid- sliipmen herein authorized shall not be entitled to appointment to any commissioned office in the United States Na\'y by reason of their graduation from the Naval Academy." The above-quoted pro\4sion of the act of August 29, 1916, relatmg to Filipino students, is not repealed by the act of July 11, 1919 (41 Stat., 140), or any other law, relating to the number of midshipmen to be allowed at the United States Naval Academy. (File 5252- 126, Aug. 1, 1919.) Students from foreign countries. — The act of June 29, 1906 (34 Stat., 577), contained the following: "No person shall be admitted for instruction at the Naval Academy at Anna- polis from any foreign country except upon authority of law hereafter enacted." A public resolution approved February 15, 1916, authorized the Secretary of the Navy to permit a designated "citizen of Cuba" to "re- ceive instruction at the United States Naval Academy at Annapolis," pro\'ided he first passed the examinations prescribed for candi- dates from the United States: Held, that said resolution did not authorize the admission of the party named therein as a midsliipman or authorize his admission into the naval service in any status whatever; he is not wliile at the Naval Academy subject to the laws and regula- tions for the government of the Navy, and is not liable to trial by court-martial and dismissal for misconduct. He is not to be regarded as a member of the naval forces but simply as a student at the Naval Academy, whose presence there is authorized by law. He is ineligible for a commission in the Navy under section 1428 of the Revised Statutes. However, he may be graduated from the Naval Academy and given a diploma as exddence of such graduation. (File 5252-120, May 13, 1919; C. M. 0. 186, 1919.) The act of June 29, 1906, above quoted, is a legislative declaration that unless Congress it- self makes an exception to the rule the privi- leges of the Naval Academy are restricted to citizens of the United States. (File 313-26, Dec. 20, 1906. Overruled by subsequent de- cisions noted under section 1428, R. S., which hold that aliens may legally be appointed to the Naval Academy as midshipmen, but can not be commissioned upon graduation as officers of the Navy unless naturalized.) Midshipmen appointed from enlisted men of the Navy, Marine Corps, Coast Guard, and Naval Reserve Force. — The appointment of midshipmen from "boys enlisted in the Navy " was authorized by acts of July 16, 1862 (12 Stat., 585, sec. 11), and March 2, 1867 (14 Stat., 517, sec. 8). By act of July 15, 1870 (16 Stat., 334, sec. 12), which changed the title of students at the Naval Academy to "cadet-midshipmen," it was provided that the said act "shall not be con- strued to authorize the appointment of cadet- midshipmen from among boys enlisted in the Navy." (File5252-59, Feb.6, 1914.) The act of June 30, 1914, and later laws above noted, authorized the appointment of midshipmen from enlisted men of the Navy. Enlisted men of the Marine Corps may be a^jpointed to the Naval Academy in the dis- cretion of the Secretary of the Navy under the authority conferred by the act of June 30, 1914 (38 Stat., 410), which authorizes such appointments from "enlisted men of the Nav>'." (File 5252-66, May 13, 1915; C. M. O. 20, 1915.) Even when the Coast Guard is operating "aa a part of the Na\-y " in time of war, as provided by the act of January 28, 1916 (38 Stat., 800), enlisted men of the Coast Guard are not 743 Sec. 1514. PL 2. REVISED STATUTES. The Navy. cliE:iblo for appointment to the Naval Acad- emy under th(> act of June 30, 1914 (38 Stat., 410), which autliorizes such appointments from "enlisted men of the Navy." (C. M. O. 141, 1918, citing file 28762-457, Oct. 10, 1918. Compare later decisions noted under sec. 1492, 11. S., holding that enlisted men of the Coast (Juard when operating 'as a part of the Navy'" are "enlisted men of the Navy.") Members of the Naval Reserve Force in enlisted ratings are not eligible, even when on active duty, for appointment to the Naval Academy under the act of June 30, 1914 (38 Stat., 410), as amended by act of December 20, 1917 (39 Stat., 9), which authorizes such ajipointments to be made from "enlisted men of the Navy." (C. M. 0. 174, 1918, citing file 5252-92:1. But see act of July 11, 1919 (41 Stat., 140), above quoted, which authorizes such appointments from "members of the Naval Reserve Force on active duty, as now authorized by law.") MisceUaneous decisions. — The act of July 14, 1862, section 8 (12 Stat., 565), which authorized the President to appoint annually ten acting midshipmen for education at the Naval Academy, to be selected from the sons of ofilcers or men in the Army, Navy, or Marine Corps who distinguished themselves in the service of the United States, was not repealed by the act of July 16, 1862, section 11 (12 Stat., 585), which prov-ided for the number to be allowed at the Naval Academy and the method of appointment thereto. The number to be appointed "at large" by the President under the latter act were in addition to the niunber to be appointed under the former act, •whose appointments were not to be "at large" but confined to a comparatively small class. (10 Op. Atty. Gen., 315.) Under the 11th section of the act of July 16, 1862, which provided that the nomination of candidates for admission into the Naval Acad- emy should he made upon recommendation of Meml)er3 and Delegates from actual residents of their districts, it was held that the Secretary of the Navy had the power and it was his duty to fill vacancies in the Naval Academy that might exist from any district wiien it was clearly impracticable to obtain the recom- mendation of the Member or Delegate in Con- gress from that district, as when the district was not represented in Congress; that the words, ' ' two for every Member and Delegate of the Hou.se of Representatives," meant to estab- lish as the standard for appointment, not the actual number of Members and Delegates who happened to be entitled to seats in the House, but the numlier of districts which w'ere entitled to representation l)y Members and Delegates, and not to make the number of students to be allowed at the Naval Academy an uncertain quantity varying with the accidents of non- election or death of Members or the like; that the provision in said act that if a Member or Delegate neglects to recommend a candidate by the first of July, it shall be the duty of the Sec- retary to fill the vacancy, clearly showed the intent of Congress that the school should be kept fiill up to the standard before stated. (10 Op. Atty. Gen., 494, modifying 10 Op. Atty. Gen., 315, which in part held that "midship- men can not lawfully be appointed for a dis- trict which is not represented in Congress." By act of Mar. 2, 1865, 13 Stat., 466, sec. 2, it was provided "that no midshipman shall be appointed for any district not represented in Congress.") The act of March 3, 1903 (32 Stat., 1177, 1197), providing that "there shall be allowed at the Naval Academy two midshipmen for each Sen- ator, Representative, and Delegate in Con- gress," did not entitle a representative to have at the academy two midshipmen of his own nomination when there was already one there upon the nomination of his predecessor; under that enactment, no congressional district was entitled to have at the Naval Academy at any one time more than two midshipmen. (25 Op. Atty. Gen., 333.) The act of July 9, 1913 (38 Stat., 103), quoted above, was construed to mean that two mid- shipmen were allowed for the ofiice of Senator, Representative, and Delegate in Congress, and not allowed to the individual holding such office; that, accordingly, if a Senator or Repre- sentatiN'e had two appointments to the Naval Academy made on his recommendation, his successor could not, while such appointees were at the Academy, be allowed to have two addi- tional appointments made to the Academy on his recommendation. (File 5252-67 : 1, July 12, 1915; CM. O. 27, 1915.) Sec. 1514. [Nomination of candidates. Superseded.] This section provided as follows: "Sec. 1514. The Secretary of the Navy shall, as soon after the 5th of March in each year as possible, notify, in writing, each Member and Delegate of the House of Repre- sentatives of any vacancy that may exist in his district. The nomination of a candidate to fill said vacancy shall be made upon the recommendation of the Member or Delegate, if such recommendation is made by the first day of July of that year; but if it is not made by that time, the Secretary of the Navy shall fill the vacancy. The canditlate allowed for the District of Columbia and all the candidates appointed at large shall be selected by the President. "—(16 July, 1862, c. 183, s. 11, v. 12, p. 585. Benjamin's Case, 10 C. Cls., 474.) It was expressly amended bv act of July 26, 1894 (28 Stat., 136), to read as 'follows: "The Secretary of the Navy shall, as soon after the fifth of March in each year as possible, notify in writing each Member and Delegate of the House of Representatives of any vacancy that may exist in his district. The nomination of a candidate to fill said vacancy shall be made upon the recomendation of the Member or Delegate, if such recommendation is made by the first day of July of that year; but if it is not made by that time, the Secretary of the Navy shall fill the vacancy by appointment of an actual resident of the district in which the vacancy exists, who shall have been for at least two years immediately preceding the date of his appointment an actual and bona fide resi- 744 The Navy. PL 2. REVISED STATUTES. Sec. 1514. dent of the district in which the vacancy exists and of the legal qualification under the law as now provided. The candidate allowed for the District of Columbia, and all the can- didates appointed at large, shall be selected by the President. ' ' It was superseded by the following pro- vision in the act of March 3, 1903 (32 Stat., 1197): "The Secretary of the Navy shall as soon as practicable after the fifth day of March in each year notify in writing each Senator, Repre- sentative, and Delegate in Congress _ of any vacancy which may be regarded as existing in the State, District, or Territory which he rep- resents, and the nomination of a candidate to fill such vacancy shall be made upon the recom- mendation of the Senator, Representative, or Delegate. Such recommendation shall be made by the first day of June of that year, and if not so made the Secretary of the Navy shall fill the vacancy by the appointment of an actual resident of the State, District, or Ter- ritory in which the vacancy exists, v.'ho shall have been for at least two years immediately preceding his appointment an actual bona fide resident of the State, District, or Territory in which the vacancy exists and shall have the qualifications otherwise prescribed bylaw." The act of March 3, 1903, was super- seded by the following provision in the act of June 29, 1906 (34 Stat., 578): "Hereafter the Secretary of the Navy shall, as soon as possitale after the first day of June_ of each year preceding the graduation of mid- shipmen in the succeeding year, notify in writing each Senator, Representative, and Delegate in Congress of any vacancy that will exist at the Naval Academy because of such graduation, or that may occur for other reasons and which he shall be entitled to fill by nomi- nation of a candidate and one or more alter- nates therefor. The nomination of a candidate and alternate or alternates to fill said vacancy shall be made upon the recommendation of the Senator, Representative, or Delegate, if such recommendation is made by the fourth day of March of the year following that in which said notice in writing is given, but if it is not made by that time the Secretary of the Navy shall fill the vacancy by appointment of an actual resident of the State, Congressional district, or Territory, as the case may be, in which the vacancy will exist, who shall have been for at least two years immediately pre- ceding the date of his appointment an actual and bona fide resident of the State, Congres- sional district, or Territory in which the va- cancy will exist and of the legal qualification under the law as now provided. In cases where by reason of a vacancy in the meinber- ship of the Senate or House of Representatives, or by the death or declination of a candidate for admission to the academy there occurs or is aboat to occur at the academy a vacancy from any State, district, or Territory that_ can not be filled by nomination as herein provided, the same may be filled as soon thereafter and be- fore the final entrance examination for the year as the Secretary of the Navy may deter- mine. The candidates allowed for the Dis- trict of Columbia and all the candidates ap- pointed at large, together with alternates there- for, shall be selected by the President within the period herein prescribed for nomination of other candidates: Provided, Ih-Sii the President may select a candidate for the District of Colum- bia for the year nineteen hundred and eight." Reconrmendation of Senator, Repre- sentative, or Delegate advisory only. — The notification from the Secretary and the recommendation from the Member are parts of the machinery of appointment, but they are only, under the statute, means to an end and not so essential as to defeat the purpose of the statute in cases where their observance may be impossible. Where observance is possible, the statutory direction should be obeyed; but the act of the Member or Delegate is simply advisory; it implies no power to compel the appointment of the person recommended, and the Secretary may refuse to accept the recom- mendation ajid require another. If the right to recommend involved the right of absolute control over the appointment, it would be equivalent to the power of appointment itself, which Congress could not vest in Members or Delegates, but which under the Constitution is vested in the President with the advice and consent of the Senate, and may be conferred by law only upon the Presidentalone, the courts of law, or the heads of departments. Any statute which in terms or effect vested the power of appointment of pupils at the Naval Academy in the Members and Delegates of Congress would be in contravention of the Constitution and void. (10 Op. Atty. Gen., 494; see also 19 Op. Atty. Gen., 350.) Appointments made by Secretary of the Navy.— Under the act of August 31, 1852 (10 Stat., 658), which provided that "no appoint- ment of midshipman, acting midshipman, or pupil at any naval school in the Navy shall be made unless recomjnended by the Member of Congress representing the district in which the applicant resides, in the same manner that cadets at West Point are now appointed," held, that a Member of Congress has no power to "appoint" a midshipman, nor even to "nominate" one, according to the common acceptation of that word ; the word used in the statute is "recommended," not "nominated," by the Member; the statute only makes the recommendation of a Member of Congress a prerequisite to appointment; the Secretary of the Navy has power to appoint as a midship- man anyone who stands recommended by a Member of Congress who was, at the time he recommended, representing the district in which the applicant resides; and if more than one be so recommended, the Secretary has a right to choose among them. The Member of Congress may, if he ^vill, decline to choose among his young constituents, and recommend them all, thus leaving the appointing power to choose among them. Accordingly, where a Member of Congress recommends for appoint- ment a person resident in his district, and hus predecessor while representing the same district had recommended for appointment another person residing within the district, held, that the present Member is not precluded from his right to recommend because his 745 Sec. 1514. Pt.2. REVISED STATUTES. The Navy. predecessor had exercised the same right before; and that the Secretary of the Navy has a perfect ris^ht to choose between them. (10 Op. Atty. Gen., M]; modified by IG Op. Atty. Gen., 621, holding that a Member of Congress had not the right in January, 1879, to recom- mend a candidate for examination in June, 1879, but that such recommendation could not lawfully be made until after the 5th day of March, 1879. See also 21 Op. Atty. Gen., 342, noted below under "Recommendation of Member of Congress later unseated."') Admission or appointment to the Naval Academy is the act of the Secretary of the Navy, both as to candidates "recommended" by Members of Congress and those "selected" by the President. In the one case the Member or Delegate recommends, and the President in the other selects, but neither appoints the naval cadet; the "nomination" based on the "recom- mendation" or the "selection" is made to the Naval Academy or to the examining committee selected from the academic board of the academy by the superintendent of the academy under paragraph 37 of the Regulations. (19 Op. Atty. Gen., 350.) According to sections 1513-1515, Revised Statutes, the follo\ving steps are necessary to the appointment of naval cadets — that is to say, each one, according as he resides in a State or Territory, must, except as to 11 of them, be recommended by a Member or Delegate of the House of Representatives from the congres- sional district or Territory of which the proposed candidate is a resident, and upon such recom- mendation he must be nominated to fill a vacancy in the academy, or in case of a failure by a Member or Delegate to make such recom- mendation the Secretary of the Navy shall fill the vacancy; and in the 11 excepted cases the persons to fill vacancies shall be "selected by the President." (19 Op. Atty. Gen., 350.) The power of appointing midshipmen is vest- ed in the Secretary of the Navy. Under sections 1513-1515, Revised Statutes, and the act of July 26, 1894, section 1 (28 Stat., 136), the Member of or Delegate to Congress "recom- mends " or the President ' ' selects, " but the Secretary of the Nav>^ ' ' appoints, " in pursuance of the power of Congress to vest the appoint- ment of inferior officers in the heads of depart- ments. (25 Op. Atty. Gen., 579, affirming 19 Op. Atty. Gen., 351.). The power to accept a resignation, like the power to remove from office, is deduced from the power to appoint, and is as firmly estab- lished as the power of removal. In the case of cadets at the Naval Academy the power of appointment is vested in the Secretary of the Navy, and therefore the acceptance by him of the resignation of a cadet creates a vacancy in the academy. (19 Op. Atty. Gen., 350.) Both cadets in the Army and cadets in the Navy_ are appointed in pursuance of the Con- stitution, Article II, section 2, providing that Congress may vest the ajipointment of inferior officers in the President alone, or in the heads of departments; those in the Army by reason of express authority conferred on the President (sec. 1315, R. S.), those in the Navy by reason of authority conferred on the Secretary of the Navy (sec. 1514, R. S.). (10 Comp. Dec, 795.) Appointments made by the President. — The statutes are silent as to who shall make the appointments of midshipmen in the Naval Academy, except that if Members of Congress fail to nominate to fill vacancies such vacancies shall be filled by the Secretary of the Navy (sec. 1514, R. S.). It has been the universal prac- tice for the Secretary of the Navy to make the appointments of midshipmen "by direction of the President" with the exception above stated. (Weller v. U. S., 41 Ct. Cls., 324.) The first act providing for midshipmen in the Navy gave their selection, like other naval offi- cers, to the President (1 Stat., 350), and it was not until by act of Congress, August 31, 1852 (10 Stat., 102), that provision was made for their recommendation by Members of Congress. This fact doubtless accounts for the present silence of the Revised Statutes -with reference to their appointments, in contrast with the pro- visions relating to cadets at the Military Acad- emy (sec. 1315, R. S.). (Weller v. U. S., 41 Ct. Cls., 324.) Neither a midshipman at the Naval Academy nor a cadet at the Military Academy holds either a commission or a warrant; both are ap- pointed by the President. (Weller v. U. S., 41 Ct. Cls., 324, 342.) The form used by the Secretary of the Navy in the appointment of a midshipman is as fol- lows: "By direction of the President of the United States you are hereby appointed a mid- shipman in the United States Navy from ." (15 Comp. Dec, 39.) The midshipmen are appointed by the Sec- retary of the Navy by direction of the Presi- dent. (15 Comp. Dec, 39, 44.) When appointment takes effect. — Cadets admitted to the Naval Academy on 10 May and 4 September, 1886, respectively, became naval cadets in the full sense of the term upon the dates named; they had on those dates, respec- tively, been duly nominated to the place, ac- cepted the nomination, passed successfully the examination required by law, taken the oath prescribed for naval cadets, been assigned to and entered upon the discharge of the duties pertaining to the position, and from those dates their salaries commenced. Their appoint- ments, although not issued until the 11th of October, 1886, related back by express recitals to these dates respectively, and are conclusive evidence of the appointments at the dates aforesaid. The appointments accordingly took effect on 10 May and 4 September, 1886, so as to render them liable to trial by court-martial. (18 Op. Atty. Gen., 507.) Obligation assumed by midshipmen to serve in the Navy.— Formerly midshipmen, at the time of executing their oath of office and as part of the same paper, signed an agreement by which they engaged to "serve in the Navy of the United States for eight years, unless sooner discharged by competent authority' ' (see 15 Comp. Dec, 43). This agreement was neither required nor expressly authorized by law, but was the creature of administrative action and may be wholly omitted or changed in any manner, not conflicting with law, as may be desired. Thus it would be legal to require that candidates in acknowledging receipt of the Department's permission to re- 746 The Navy. PL 2. REVISED STATUTES. Sec. 1514, port for examination embody in their letter of acknowledgment an engagement that, should they receive an appointment as a midshipman, they "will serve in the Navy of the United States during the pleisui'e of the President of the United States, unless sooner discharged by competent authority," said letter and agree- ment to be expressly approved thereon by their parents or guardians. (File 5252-77, July 20, 1915.) In accordance with the above, it was directed by the Secretary of the Na^'j', April 12, 1916, that form letters be prepared, to be signed by candidates for the Naval Academy and their parents or guardians, obligating such candidates, if appointed, to serve during the pleasure of the President of the United States, instead of for a specified period of eight years. (File 5252-77, Apr. 12 1916.) Reinstatement of midshipman. — The Secretary of the Navy can not revoke his action in accepting the resignation of a na^-al cadet after the resignation has taken effect. The cadet ha\ing declared his purpose to resign, and the Secretary of the Navy having signified his acquiescence in that purpose, the result was a complete severance of the cadet's connection with the Academy, and as much a vacancy there as if the cadet had died. The consent of the parties to the act of resignation could not be recalled except by the reappointment of the same person as cadet in conformity to sections 1514 and 1515, Re\'ised Statutes. It follows that the attempted consent of the Secretary of the Na\'y to the withdrawal of the cadet's resignation after acceptance thereof did not re- instate and restore such cadet to the Academy, but had no legal effect whatever. (19 Op. Atty. Gen., 350.) The appointment of a midshipman was re- voked because of accumulated demerits, and the revocation duly promulgated. An ofiicer who has resigned or been dismissed can not be restored to the office formerly held by him ex- cept by reappointment. Accordingly, heldthSit the Secretary of the Na^y has no authority to reinstate to the Naval Academy a midshipman whose appointment has been revoked because of accumulated demerits and the revocation thereof dulv promulgated. (25 Op. Attv. Gen., 579.) For other cases see notes to sections 1515, 1517, and 1519, Revised Statutes. Recommendation of Member of Con- gress later unseated. — The notice provided for by section 1514, Re\ised Statutes, as amend- ed, was intended to be given to the Member of Congress actually sitting, and the recommenda- tion provided for by said section was intended to be made by such member, and action duly taken thereon should not be affected by any subsequent event except the failure of the nominee to pass his examination. Accordingly, held that a cadet nominated to the Naval Academy upon the recommendation of a Mem- ber of the House of Representatives who, since the recommendation and nomination, has been unseated by contest of election can not be law- fully deprived of his place if he passes his exam- ination. The Secretary of the Na^n^- ip Bot au- thorized to revoke such a nomination and notify the newly seated Member that a vacancy exists. He has no right to call for a new recommenda- tion except under section 1516, Revised Stat- utes, when the candidate fails to pass his exam- ination. Until a decision is made which un- seats them, Members of Congress whose seats are contested are considered to be in all re- spects endowed with the same rights, powers, and privileges as other members. Even if the Secretary had not acted upon the recommen- dation until after the Member who made it was unseated, his nomination thereon would be perfectly legal and valid. This was held in 10 Op. Atty. Gen., 40, in which it was said that the Secretary has power to appoint any one who stands recommended by a Member of Congress who was, at the time he recommended, repre- senting the district in which the applicant re- sides. (21 Op. Atty. Gen., 342.) Date of notice and recommendation. — Section 1514, Re\'ised Statutes, was amended by act of July 26, 1894, providing that notice shall be given by the Secretary of the l^axy "as soon after the fifth of March in each year as possible." The date named in the statute was undoubtedly chosen with reference to the meet- ing of Congress. The requirement of prompt notice was due to manifest reasons of public policy. The object was not so much to confer a priATlege on the Members of Congress as to in- sure full classes of cadets. (21 Op. Atty. Gen., 342.) . . . ■ Beginning with the foundation of the Govern- ment, never departed from and now having the force of law, the life of each Congress comes to an end at noon on the 4th day of March. An act approved March 2, 1895, authorized Members of Congress to recommend cadets to fill vacancies existing at the Naval Academy, such nominations to be made on or before March 4, 1895. This act was intended to apply to Members of the then existing Fifty-third Congress. To be valid it was essential that a recommendation should be made before 12 o'clock noon of March 4, 1895. Accordingly, held that three recommendations, dated March 4, 1895, but not received at the Navy Depart- ment until March 5, 1895, were ineffective, notwithstanding that one of said recommenda- tions was signed at 11.30 a. m. and handed to the ! Assistant Secretary of the Na\'y about 9 o'clock in the evening of March 4, 1895; therefore said recommendations did not deprive the succes- sors in office of the signers of the general priv- ileges granted to them by Revised Statutes, sections 1513 and 1514. (21 Op. Atty. Gen., 164.) March 6, 1878, a Member of Congress was informed, as required by section 1514, Revised Statutes, of a vacancy at the Naval Academy for the appointment of a cadet midshipman from his district and was requested to recom- mend a candidate to fill the vacancy; he did so and the candidate failed in June, 1878, to pass the required examination. On June 29, 1878, the Member of Congress was, as required by section 1516, Revised Statutes, informed of the failure of said candidate to pass the required examination and was requested to* recommend another to be examined in Sep- tember following; he did so recommend and the candidate failed on examination in Sep- tember, 1878. The times for the examination of candidates as fixed by the Regulations are 54641°— 22- -48 747 Sec. 1615. Pt.2. REVISED STATUTES. f he Navy. Juno 1 1 and Septoml>er 22 of each year. Held, that tht> next reconiinendation of a cadet-mid- piiipman for the vacancy in question should be made after March 5, 1879. Section 1515, Re^^sed Rtatutee, is to he reiid as if the dates fixed In- the Regulations of the Academy had been expressly in.'^erted therein; accordin(};ly, the season for recommendations and nominations of cadet-midshipmen begins after March 5 and expires on September 22 of each year; although a casual persual of section 1514 might suggest that the date, "fifth day of March," therein contained applies only to the notice spoken of and does not prevent the recommendation from being made sooner, in case the member has otherwise been informed of the vacancy. Wliile it may be conc-eded that a previous notification is not essential to the validity of a recommendation, it seems that the date is so. The effect of the law was to postpone the operation of the enactment until the coming-in of a new Congress, and to establish a process by which the Members of that Congress, and of all others, might control the appointment of cadet- midshipmen made during their respective terms of office. Accordingly, held that in this case the Member of Congress has not the right, prior to March 5, 1879, to recommend another candidate for examination in June, 1879, or for examination at once. (16 Op. Atty. Gen., 621, modifying 10 Op. Atty. Gen., 46.) The naval appropriation act of June 29, 1906 (34 Stat., 578), relating to appointments to the Naval Academy, provided that "the candi- dates allowed for the District of Columbia and all the candidates appointed at large, together with alternates therefor, shall be selected by the President within the period herein pre- scribed for nomination of other candidates," that is, by the 4th day of March of the year following that in which written notice is given, etc. This clause was followed by a proviso that "the President may select a can- didate for the District of Columbia for the year nineteen hundred and eight." This additional authority granted by the proviso was exercised by the President by selecting a candidate for the District of Columbia for the year 1908. Ilehl that the power of the Presi- dent, granted by this ])rovi80, was thereby exhausted, and the candidate having failed on his examination the President is not au- thorized, by virtue of that clause, to reap- point him or to otherwise exercise the power conferred upon him by that proviso. (27 Op. Atty. Gen., 420.) Recoininendation of alternates. — Under the system followed by the Navy Department the nomination of alternates by a Re})resenta- tive in Congress is limited to vacancies for which designated by the Representative. Accordingly, where the principal and all alternates nominated for one vacancy failed upon examination, new nominations are re- quired and the vacancy can not be filled by the appointment of a successful alternate designated by the same Representative for another vacancy, where such alternate was not also designated as alternate for the vacancy first mentioned. Where two vacancies exist at the same time the same alternates can be designated for each principal candidate, but unless this is done the alternates have no claim to consideration for any vacancy other than that for which designated. In this case the candidate and his three alternates having failed, and in the meantime the Representa- tive who made the nomination having gone out of office, the vacancy was properly filled upon nomination of his successor, and the candidate finally appointed should be entered in the records as having been appointed upon the recommendation of the latter, notmth- standing it so happened that the successful candidate was one of the alternates designated by the former Representative to fill a different vacancy. (File 5252-128, Oct. 17, 1919.) Oath of ofla.ce. — The form of oath to be taken by midshipmen is that prescribed by section 1757, Revised Statutes, and not that prescribed by article 2 of the Articles of War (sec. 1342, R. S.) for enlisted men of the Army, which is made applicable to enlisted men of the Navy by section 25 of the Navy personnel act of March 3, 1899 (30 Stat., 1004). (File 5252-28: 1, Aug. 25, 1909.) Sec. 1615. [Examination of candidates.] All candidates for admission into the Academy shall be examined according to such regulations and at such stated times as the Secretary of the Navy may prescribe. Candidates rejected at such examination shall not have the privilege of another examination for admission to the same class, unless recommended by the board of examiners. — (leJuly, 18G2, c. 18.3, s. 11, v. 12, p. 585. 17 April, 1866, c. 45, s. 5, v. 14, p. 38.) expired on September 22, of each year; accord- ingly held that a Member of Congress whose candidate had failed on examination in Sep- tember, 1878, did not have the right in January, 1879, to recommend another candidate for special examination at once, or for the regular examination in June, 1879, but that such recommendation could not be made until after March 5, 1879. (16 Op. Atty. Gen., 621, modifying 10 Op. Atty. Gen., 46.) Where the regulations of the Academy pro- vided for mental examinations to be held in Time of exaraination. — Section 1515, Re- vised Statutes, is to be read as if the dates fixed by the regulations of the Academy had been expressly inserted therein. Where the dates fixed by the rctgulations were June 11 and September 22 of each year, and under eection 1514, Revised Statutes, as amended, the date for notifying Representatives of vacancies to be filled was "as soon after the fifth of March in each year as possible," the result was that the season for recommendations and nominations begaa after March 5 and 748 The Navy. Pt. 2. REVISED STATUTES. Sec. 1517. April and June of each year, and a physical examination for those who qualified mentally, held that a special examination in February would be in advance of the time pro-vided under the statute; accordingly a niunber of midshipmen who were di'opped as a result of the semiannual examination at the Academy could not be, although renominated, reappoint- ed in February upon passing a successful physical examination and granted leave of absence with pay until the summer coui'se at the Academv beginning the 1st of July. (File 313-20, Feb.' 14, 1907.) Power of Secretary of the Navy "with respect to examinations. — By section 1515 of the Re\ised Statutes full power is given the Secretary of the Navy over examinations for admission. So far as the details of the exam- inations are concerned, the Secretary may, if he chooses, fix them. (36 J. A. G. letter book, 195, Mar. 19, 1907.) Conformably to the authority granted the Secretary of the Navy by section 1515, Revised Statutes, it has been made a requii'ement that candidates for appointment must "be of good moral character." In the case of a midship- man who had been dismissed from the Naval Academy for ''intoxication and inaptitude," and who had other reports on record against him, the question of his eligibility for re- appointment upon a new nomination is not one of law but of fact, viz, whether or not his dismissal from the Naval Academy and the cause thereof, together with his record while at the institution, indicates that he is not of suf&ciently "good moral character" to be readmitted as a midshipman. (File 5252-43, Oct. 5, 1911.) Reinstatement of midshipmen. — An appointee is none the less a "candidate for admission" subject to examination under sections 1515 and 1516, Revised Statutes, and the regulations, because he has already been a member or inmate of the Academy. (25 Op. Atty. Gen., 585.) Where the resignation of a naval cadet has taken effect, he can not be reinstated except by reappointment as cadet in conformity to sections 1514 and 1515, Revised Statutes. (19 Op. Atty. Gen., 350.) In the matter of reappointment, midshipmen who were dropped as a result of the semiannual examination at the Academy, and are renom- inated, stand on the same footing as candidates for first appointment to the Academy. (File 313-20, Feb. 14, 1907.) WTiether a midshipman dismissed from the Naval Academy is eligible for reappointment so far as his moral character is concerned is a question of fact to be ascertained upon exam- ination pursuant to the requii'ements pre- scribed by the Secretary of the Navy under section 1515, Revised Statutes. (File 5252-43, Oct. 5, 1911.) For other cases see notes to sections 1514, 1517, and 1519, Revised Statutes. Sec. 1516. [Second recommendation.] Wlien any candidate who has been nominated upon the recommendation of a Member or Delegate of the House of Representatives is found, upon examination, to be physically or mentally dis- c^ualified for admission, the Member or Delegate shall be notified to recommend another candidate, who shall be examined according to the provisions of the precedmg section.— (16 July, 1862, c. 183, s. 11, v. 12, p. 585. 17 July, 1866, c. 45, s. 5, V. 14, p. 38.) Second recommendation authorized only in cases specified. — Where a cadet was nomi- nated to the Naval Academy upon the recom- mendation of a Memlier who was later unseated by contest of election, the Secretary of the Navy can not revoke such nomination and notify the newly seated Member that a vacancy occurs; he has no right to call for a new recom- mendation, except under section 1516, Re- vised Statutes, when the candidate fails to pass his examination. (21 Op. Atty. Gen., 342.) Where a midshipman was appointed upon the recommendation of a Member, and the success- or of such Member contended that the appoint- ment was null and void for the reason that the appointee did not possess the statutory quali- fications, held that if this contention could be sustained and the midshipman removed, the vacancy thus existing could be filled, under the statute, only by the selective appointment of the Secretary; there would happen no case for nomination or recommendation by the Repre- sentative from the district to which such mid- shipman had been credited. (28 Op. Atty. Gen., 180.) Sec. 1517. [Qualifications.] Candidates allowed for congressional dis- tricts, for Territories, and for the District of Columbia must be actual residents of the districts or Territories, respectively, from which they are nominated. And all candidates must, at the time of their examination for admission, be between the ages of fourteen and eighteen years, and physically sound, well formed, and of robust constitution. — (14 July, 1862, c. 164, s. 9, v. 12, p. 565. 16 July, 1862, c. 183, s. 11, v. 12, p. 585. 1 April, 1864, c. 47, s. 2, v. 13, p. 39.) 749 Sec. 1517. Pt.2. REVISED STATUTES. The Navy. Amendments to this section were made by act of March 2, 1889, section 2 (25 Stat., 87f)\ which provided that "after the fourth day of March, eighteen hundred and eighty-nino, the minimum age of admission of cadets to the academy shall be fifteen years and the maximum age twenty years;" by act of March 8, 1903 (32 Stat., 1198), which provided that "after January first, nineteen hundred and four, all candidates for admission to the Naval Academy at the time of their examination must be between the ages of sixteen and twenty years;" and by act of May 14, 1918 (40 Stat., 550), which provided that "hereafter all candi- dates for admission to the Naval Academy must be not less than sixteen years of age nor more than twenty years of age on April first of the calendar year in which they enter the academy: Provided, That the foregoing shall not apply to candidates for midshipmen designated for entrance to the academy in nineteen hundred and eight- een." Qualifications for appointments from enlisted men of the Navy: See laws noted under section 1513, Revised Statutes. Not mandatory that candidate possess- ing required qualifications be appointed. — While the law says that a candidate must have undergone a successful examination and possess certain other qualifications before he can be admitted to the academy, it does not say that a candidate possessing those qualifications must be admitted . 1 1 is by the act and permission of the Secretary alone that a candidate having all the qualifications is admitted to the academy. (19 Op. Atty. Gen., 350. See also note to sec. 1514, R. S.) Reinstatement of midshipman. — The ages prescribed by law for admission to the Naval Academy apply as well to one who has already been a member of the Naval Academy as to a new appointee. (File 5252-43:1, May 7, 1913.) A midshipman at the Naval Academy who, being found deficient in studies, presented his resignation, which was accepted, can not be reappointed to fill the vacancy thus created if he is above the statutory age limit for original appointment. (25 Op. Atty. Gen., 585.) For other cases, see notes to sections 1514, 1515, and 1519, Revised Statutes. Qualifications can not be reexamined after appointment. — A nominee for the office of midshipman in the Navy, whose qualifica- tions have been regularly certified to by a Rep- resentative in Congress, who has passed the necessary mental and physical examinations and received and accepted the appointment, can not, in the absence of fraud, be deprived of that office on the ground that he was not an actual resident of the congressional district whence he was appointed, although it should afterwards appear that he was not such an ac- tual resideiit. (28 Op. Atty. Gen., 180.) The eligibility of a nominee having been determined by a former Secretary of the Navy, that action, in the absence of fraud, must be regarded as final and not subject to reexamina- tion under a subsequent administration. (28 Op. Atty. Gen., 180; see also note to sec. 417, R. S.) A statute which empowers an officer or tri- bunal to appoint a person having certain qual- ifications confers upon that officer or tribunal the power to determine the qualifications and eligiliility of the appointee. In this case the law gives the Secretary of the Navy sole juris- diction to hear, determine, and adjudge all questions of qualifications, and his decision is final in the absence of some provision for appeal or review. Wlien the decision of the Secre- tary of the Navy is made and promulgated, his determination liecomes final and is res judicata of all that is involved. (28 Op. Atty. Gen., 180.) Age requirements can not be •w^aived. — As the age qualifications are fixed by law, the executive is without authority to waive the statutory provisions on the subject. If it could be shown that action had been taken in any case contrary to law, such action could not be regarded as a precedent. (File 5252-43:1, May 7, 1913.) Determination of qualifications by Rep- resentative making recommendation. — The statutory requirements as to residence and age are as much directed to and obligatory upon the Representative making the nomination as they are with respect to the Secretary of the Navy in making the appointment. His infi- nitely better means and greater facilities for as- certaining whether the nominee is a resident of his district recommends this practice; and his interest in his constituents, many of whom would desire this place for their young sons, should insure due care that no mere squatter or sojourner by his recommendation should step into the place to which one of them is entitled. Accordingly, the Secretary of the Navy is not derelict in duty when he assumes that such Representative has performed his duty and re- ported correctly upon the qualifications and eligibility of the nominee; and it is not an un- reasonable practice for the Navy Department to devolve upon the Representative in Congress the duty of ascertaining and reporting with his nomination that the nominee has the required qualifications, including that of residence; and to act upon his statement unless something to the contrary appears. (28 Op. Atty. Gen., 180.) Requirements as to residence. — The words, "an actual and bona fide resident of the State, Congressional district, or Territory in which the vacancy will exist," employed in the act of June 29, 1906 (34 Stat., 578— noted under sec. 1514, R. S.), providing for the nomi- nation of midshipmen for admission to the Naval Academy, require the appointee to be "actu- ally domiciled" in the State where he is ap- pointed; this, however, does not necessarily mean actual physical presence. A naval officer whose home is at Athens, N. Y., but who has for some time past been stationed in Ports- mouth, N. H., is a legal resident and voter in Athens, N. Y., which is also the actual bona fide residence of his minor son, notwithstanding the latter has for several years been living with his father and physically present at Portsmouth, N. H. The son is therefore eligible for nomi- nation upon recommendation of the Senator 750 The Navy. PL 2. REVISED STATUTES. Sec. 1519. from New York, by whom this question was raised. (28 Op. Atty. Gen., 41.) Section 1517, Revised Statutes, requires that candidates must be "actual residents" of the districts or territories from which they are nominated. The act of June 29, 1906 (34 Stat., 578), provides that candidates shall be ' ' actual and bona fide " residents of the State, congressional district, or Territory in which the vacancy will exist. It is manifest that the main purpose of this requirement of resi- dence is the fair distribution of these appoint- ments among the several States, Territories, congressional districts, and the District of Colimibia, and to that end to prohibit the filling of a vacancy in one by a resident of another. But the statutes require that candidates must be between specified ages, so that the question is confined to the residence of an infant. It is well settled that the residence of a minor son is that of his father, and that this continues even after the death of the father until the minor acquires in some way another legal residence. Therefore, if the father of a nominee is a resident of the locality in which the vacancy is about to occur, that residence is also the residence of his minor son. (28 Op. Atty. Gen., 41.) The minor son of an Army officer stationed for the last two years at Governor's Island, N. Y., who has been physically present and attending school in New York City, is not an actual and bona fide resident of the State of New York, but of Virginia, which is the legal residence of his parent, unless he has become entitled to or attempted to establish an actual residence separate and apart from his father; and is not, therefore, eligible for nomination upon recommendation of the Senator from New York, by whom this question was raised. (28 Op. Atty. Gen., 41.) Reqviireinents as to age. — The words "between the ages of fourteen and seventeen," in the act of July 16, 1862, section 11, regulating appointments to the Naval Academy, are unambiguous and too plain for construction. A boy who happens to be below 14 years of age or above 17 is certainly not between those ages; there is no " ' rigor " in the case, but only a fixing of a qualification of age, as the Constitution does in regard to the President and the members of both houses of Congress; accordingly all who have "'attained to seventeen years of age" are excluded from appointment. (10 Op. Atty. Gen., 315; see also note to sec. 1370, R. S., concerning age of candidates for ap- pointment as naval officers. ) Sec. 1518. [Appropriations, how applied.] No money appropriated for the support of the Naval Academy shall be applied to the support of any mid- shipman appointed otherwise than in strict conformance with the provisions of this chapter.— (21 May, 1864, c. 93, s. 1, v. 13, p. 84.) Sec. 1519. [Midshipmen found deficient.] Cadet midshipmen found defi- cient at any examination shall not be continued at the Academy or in the service unless upon the recommendation of the academic board. — (16 July, 1862, c. 183, s. 11, V. 12, p. 585. 23 June, 1874, c. 453, v. 18, p. 203.) Amendment to this section was made by act of June 5, 1920 (41 Stat., 1028), wliich pro- vided "that until otherwise pro\dded by law no midshipman found deficient at the close of the last and succeeding academic terms shall be involuntarily discontinued at the Naval Academy or in the service un- less he shall fail upon reexamination in the suljjects in which found deficient at an examination to be held at the beginning of the next and succeeding academic terms, and the Secretary of the Na\-y shall pro- vide for the special instruction of such midshipmen in the subjects in which found deficient during the period between aca- demic terms." "Cadet-midshipmen," title changed to "naval cadets" and later changed to "midship- men" by laws noted under section 1512, Revised Statutes. Coiu-t-martial of midshipmen . — By act of June 23, 1874 (18 Stat., 203), it was provided that "in all cases where it shall come to the knowledge of the Superintendent of the Naval Academy, at Annapolis, that any cadet-midshipman or cadet-engineer has been guilty of the offense commonly known as hazing, it shall be the duty of said Superintendent to order a court-mar- tial, composed of not less than three com- missioned officers, who shall minutely ex- amine into all the facts and circumstances of the case and make a finding thereon ; and any cadet-midshipman or cadet-engineer found guilty of said offense by said court shall, upon recommendation of said court be dismissed; and such finding, when ap- proved by said Superintendent, shall be final ; and the cadet so dismissed from said Naval Academy shall be forever ineligible to reappointment to said Naval Academy." Court-martial of midshipmen. — By act of March 2, 1895 (28 Stat., 838), it was provided "that the Secretary of the Na\y shall have power to convene general courts-martial for the trial of naval cadets, subject to the same limitations and conditions now existing as to other general courts-martial, and to ap- prove the proceedings and execute the sen- tences of such courts, except the sentences of suspension and dismissal, which, after ha^dng been approved by the Superinten- dent, shall not be carried into effect until confirmed by the President." Court-martial of midshipmen. — By act of March 3, 1903 (32 Stat., Ii98), it was provided "that the superintendent of the Naval Academy shall make such rules, to be ap- 751 Sec. 1519. PL 2. REVISED STATUTES. The Navy. proved ])y the Secretary of the Navy, as will effectually prevent the ))ractiee of hazint;; and any cadet found guilty of par- ticipating in or encouraging or countenanc- ing such practice shall be summarily ex- pelled from the Academy, and shall not thereafter be reapjjointea to the corps of cadets or be eligible for api)ointment as a commissioned officer in the Army or Navy or Marine ('ori)s until two years after the graduation of the class of which he was a member." (See 25 Op. Atty. Gen., 543, noted below.) Dismissal without court-martial. — By act of Ajml 9, 1906, section 1 (34 Stat., 104), it was provided "'that it shall be the duty of the Superintendent of the United States Naval Academy, whenever he shall believe the continued presence of any midship- man at the said academy to be contrary to the best interests of the 8er\'ice, to report in writing such fact, with a full statement of the facts upon which are based his rea- sons for such belief, to the Secretary of the Navy, who, if after due consideration of the said report he shall deem the superin- tendent's said belief reasonable and well ' founded, shall cause a copy of the said report to be served upon the said midship- man and require the said midshipman to show cause, in writing and within such time as the said Secretary shall deem rea- sonable, why he should not be dismissed from the said academy; and after due con- sideration of any cause so shown the said Secretary may, in his discretion, but with the written approval of the President, dis- miss such midshipman from the said acad- emy. And the truth of any issue of fact so raised, except upon the record of demerit, shall be detennined by a board of inquiry convened by the Secretary of the Navy under the rules and regulations for the gov- ernment of the Navy." Hazing, punishment for. — The act of April 9, 1906 (34 Stat., 104, 105), contains the following provisions: "Sec. 2. That so much of the Acts approved June twenty- third, eighteen hundred and seventy-four, and March third, nineteen hundred and three, aa requires the Superintendent of the United States Naval Academy to con- vene a court-martial in all cases when it shall come to the knowledge of the said superintendent that any midshipman has been guilty of the offense commonly known as 'hazing,' and declares the finding of a court-martial so convened, when approved by the said superintendent, final, and directs that any midshipman found guilty by such court-martial shall be summarily dismissed from the said academy, and also p.'.l other Acts or parts of Acts inconsistent with the present Act are hereby repealed, and that the offense known as 'hazing' may hereafter be proceeded against, dealt with, and punished as offenses against good order and discipline and for viola- tion and breaches of the rules of said academy. But no midshipman shall be dismissed for a single act of hazing except under the provisions of section three of this Act. "Sec. 3. That the Superintendent of the United States Naval Academy may, in his discretion and with the approval of the Secretary of the Navy, cause any mid- shipman in the said academy to be tried by court-martial for the offense of hazing, as provided by the Act approved June twenty-third, eighteen hundred and seventy-four, and such court-martial, upon conviction, may sentence such midship- man to any punishment authorized by the said Act or by the Act approved March third, nineteen hundred and three, or authorized for any \'iolationor breach of the rules of the said academy by thesaid rules, or, in cases of brutal or cruel hazing may, in addition to dismissal, sentence such mid- shipman to imprisonment for a period not exceeding one year: Provided, That such midshipman shall not be confined in a military or l^a^•al prison or elsewhere with men who have been convicted of crimes or misdemeanors; and such finding and sentence shall be subject to review by the convening authority and by the Secretary of the Navy, as in the cases of other courts- martial. "Sec. 4. That the offense of 'hazing,' as mentioned in this Act, shall consist of any unauthorized assumption of authority by one midshipman over another mid- shipman whereby the last-mentioned mid- shipman shall or may suffer or be exposed to suffer any cruelty, indignity, humiliation, hardship, or oppression, or the deprivation or abridgment of any right, privilege, or advantage to which he shall be legally entitled . "Sec. 5. That it shall be the duty of every professor, assistant professor, aca- demic ofiicer, or any cadet officer or cadet petty officer, or instructor, as well as every other officer stationed at the United States) Naval Academy, to promptly report tc the superintendent thereof any fact which comes to his attention tending to indicate any \dolation by a midshipman or mid- shipmen of any of the provisions of this Act or any violation of the regulations of the said academy. Any naval officer attached to the academy who shall fail to make such report as provided in this section shall be tried by court-martial for neglect of duty and if convicted he shall be dis- missed from the service. Any civilian instructor attached to the academy who shall fail to make such report as provided in this section shall be dismissed by the superintendent of the academy upon the approval of the Secretary of the Navy." Act of June 5, 1920, construed. — The act of June 5, 1920 (above quoted), in so far aa it is not retroactive, is amendatory of section 1519, Revised Statutes, and provides for a second ex- amination of the midshipmen found deficient at the examination at the close of the term, before the Academic Board shall pass upon the ques- tion of whether they shall be continued at the academy. It ap])lies equally to the annual and semiannual examinations for the expression 752 The Navy. PL 2. REVISED STATUTES. Sec. 1519. ' ' term " and not ' ' year "' is used in the act. (32 Op. Atty. Gen., 294.) Under the NaA^al Academy Regulations the period intervening between the hrst term and second term of the academic year amounts to one day, which is Sunday, so that the amount of special instruction which could l)e imparted to midshipmen found deficient at the semian- nual examination would be practically negligi- ble, but an interpretation of the act requires that they be allowed to take a second examina- tion. (32 Op. Atty. Gen., 294.) Midshipmen found deficient at the annual examinations at the close of the academic term, held May 24-29, 1920, whose retention at the academy or in the ser\'ice had not been recom- mended by the Academic Board and whose res- ignations had been duly submitted and accepted by the Secretary of the NaAy on June 1, 1920, are not entitled to the benefits of the act of June 5, 1920. The reinstatement of such mid- sliipmen could not take place otherwise than by appointment by the Secretary of the Navy, and in so far as it is intended to affect such mid- shipmen the said act is contrary to the Consti- tution relating to appointment of officers of the United States (32 Op. Atty. Gen., 294, citing 19 Op. Atty, Gen., 350, U. S. v. Germaine, 99 U. S., 508, U. S. V. Mouat, 124 U. S., 303, 307). Academic Board. — The Academic Board was not of statutory creation. Like many other things connected with the Naval Academy it was a piece of "departmental legislation," but it has since been recognized by law. The " Regulations of the United States Naval Acad- emy, 1867," page 10, chapter 2, under the heading, "Academic Board," declared that "the Academic Board shall be composed of the following officers: The superintendent; the com- mandant of midshipmen; four senior assistants to the commandant of midshipmen; and the heads of the departments of mathematics; steam enginery; astronomy, na\agation, and survey; natural and experimental philosophy; ethics, and English studies; French language; Spanish language; drawing." It further pro- vided that the Academic Board should be con- vened for the transaction of business at the call of the superintendent; that a majority of the voting members should constitute a quorum. Its duties were defined and appertained gen- erally to the internal management of the Acad- emy and the prosecution of studies. Among the statutes recognizing the Academic Board is section 1519, Revised Statutes, which is based upon an act passed July 16, 1862. (File 5146, June 23, 1906.) Jurisdiction of Academic Board and Secretary of the Navy. — Sections 1519 and 1525, Revised Statutes, leave no right in the Secretary of the Navy to continue at the Acad- emy cadets who have been found, at any exam- ination, deficient in their studies, without the recommendation of the Academic Board. These sections appear to be wise and according to the reason of the thing; and in their absence it would only be in very rare and hardly con- ceivable instances that the "care and super- vision " intrusted by article one (Regs. 1876) to the Secretary of the Navy could authorize an unrecommended revision of a sentence for de- ficiency. Pro re nata intervention by the Secre- tary would lead to insubordination on the part of students, and would become a fruitful parent of discord amongst the authorities of the Academy. (15 Op. Atty. Gen., 634.) Sections 1519 and 1525, Revised Statutes, ex- pressly provide that cadet midshipmen and cadet engineers, or naval cadets as they are now all designated, "found deficient at any exami- nation," shall not be continued at the Academy or in the service "except" or "unless" upon the recommendation of the Academic Board. A regulation of the Naval Academy to the same effect had been in force for some years when the legislation now embodied in those sections was enacted, and the reason for this interference of Congress was, no doubt, to prevent the bad effect on the discipline of the institution pro- duced by the occasional, and perhaps not al- ways well considered, interferences of the Navy Department with the operation of that execu- tive regulation. (19 Op. Atty. Gen., 302.) Where certain naval cadets were found de- ficient at the semiannual examinations held at the Naval Academy in January 1889, and with- out the recommendation of the Academic Board were granted leave of absence by the Secretary of the Navy with permission to report to the Superintendent of the Academy to join the next fourth class: Held, that the Secretary had no power to continue these cadets in the Acad- emy without the recommendation of the Aca- demic Board. (19 Op. Atty. Gen., 302.) Whenever a midshipman is found deficient in his studies as the result of any examination, the determination of the Academic Board is final and conclusive. (File 5146-1, July 13, 1906.) By section 1515, Revised Statutes, full power is given the Secretary of the Navy over exam- inations for admission: Held, that he also has power of final control over all other examina- tions. In the first instance the details of the examinations are naturally under the super- vision of the Academic Board, which is a body recognized by the statutes. Clearly the Secre- tary has not the power to order the Academic Board to recommend the retention of a mid- shipman found deficient at any examination; but it would seem that, so far as the details of the examinations are concerned, the Secretary may, if he choose, fix them. (36 J. A. G. letter book, 195, Mar. 19, J 907.) Deficiency in conduct. — It has been cus- tomary for the Academic Board to recommend the dropping, turning back, or retention of midshipmen by reason of conduct, simultane- ously with similar recommendations founded upon proficiency or the reverse in their studies; but, while in the latter case the midshipmen are subjected to an examination and the results of this examination are highly material in de- termining the recommendations of the board, in the former case these recommendations are founded entirely upon the records of the mid- shipmen and no one is in fact "found defi- cient" in conduct "at any examination." Held, therefore, to be doubtful whether section 1519 ever applied to midshipmen found de- ficient in conduct; further held that, if api)li- cable to such case, the act of April 9, 1906, section 1 (34 Stat., 104, quoted above), must be 753 Sec. 1519. ri.2. REVISED STATUTES. The Navy. considered as repealinp;, pro tanto, section 1519. (File 514()1, July i:il!)0(i.) Whenever a inidsliipinan is found deficient in his studies aa the result of any examination, the determination of the Academic Board is final; when found deficient in conduct, the procedure prescribed by the act of April 9, 100(), must be followed. (File 5146-2, Feb. 13, 1907.) It seems quite clear from the act of April 9, 1906, that amonp; the grounds on which Congress expected midshipmen to be dismissed was an excess of demerit^, since in the words of that act pro\ision is evidently matle for that very contingency. Nothing is said in this law as to the dismissal of midshipmen through the action of the Academic Board, but unless provision for such dismissal had been made in express and unequivocal terms in some law existing at the time of the enactment of said act, it would seem clear that, upon established principles of statutory construction, this method of dismis- sal for misconduct and the procedure incident thereto were intended by Congress to be ex- clusive of any others. (File 5146-1, July 13, 1906.) Dismissal for accumulated demerits has al- ways been treated by the Navy Department as dismissal for misconduct. (25 Op. Atty. Gen., 579.) Physical deficiency. — Under Revised Stat- utes, section 1519, providing that cadet mid- shipmen found deficient at any examination shall not be continued at the Academy unless upon the recommendation of the Academic Board, a cadet found physically ineligible for appointment in the Navy or Marine Corps has no right to remain at the Academy unless upon recommendation of the Academic Board. Where, under such circumstances, the Aca- demic Board found the cadet proficient for the six years' course and complimented him Avith a certificate of graduation, he having served nearly the required six years, and the Secretary of the Navy disfharged him from the service on the same date on account of physical dis- ability, he is technically a graduate but not entitled to one year's pay under the act of August 5, 1882 (22 Stat., 284, quoted under sec. 1522, R. S.), notmthstanding there was at the time of his discharge a surplus of graduates for whom no vacancies existed in the lower grades. (Potter v. U. S., 34 Ct. Cls., 13.) A mid.shipman found deficient in any ex- amination and not having the recommendation of the Academic Board has no right to remain at the Academy. One who graduated from the Academy after the act of March 7, 1912 (37 Stat., 73, reducing the cour.'^e to four years), but "on leave of absence awaiting physical reexamination to determine fitness for com- mission as ensign," is in the pay status of a midshipman at the Academy and entitled to pay at $600 per annum, provided he is contin- ued in the service upon the recommendation of the Academic Board. (20 Comp. Dec, 141.) A mid.shipman completed the six years' course and was found proficient by the Aca- demic Board on examination for final graduation, but deficient by the medical examining board, and was continued in the service until it could be determined whether his disability was of a permanent or temporary nature. He finally pa.ssed his phy.sical examination and was appointed ensign. Paragraph 169 of the Reg- ulations of the United States Naval Academy, 1909, enumerates the subjects which the ex- amination for final graduation shall embrace, but such enumeration does not inc;lude a physical examination. Paragraph 167 pro- vides that "no midshipman shall pass from a lower to a higher class, perform the two years' service afloat, or be appointed in the lower grades of any branch of the service until he shall have been examined by a board of not less than three medical officers of the Navy and pronounced physically qualified to perform all his duties." Held, that the successful passing of a physical examination is not a prerequisite to the final graduation of a mid- shipman, but is merely a condition precedent to his promotion or appointment in the lowest grades of the line of the Navy and Marine Corps, and therefore in this case the midship- man finally graduated with his class at the termination of his six years' course, and that the date of his final graduation was the same date as the final graduation of his class. (16 Comp. Dec, 734.) Naval cadets who were found mentally and professionally qualified upon the graduating examination of their class are entitled to a certificate of graduation notwithstanding that they were reported as physically disqualified for the naval service. There is no authority in the law for stating their physical disqualifi- cation in the certificates to be given them, for the reason that physical condition does not enter into the idea of graduation except in 80 far as graduation presupposes a sound physi- cal condition at the time of admission to the Academy. Such a statement would be objec- tionable as out of place, which is alone a good reason for omitting it. (19 Op. Atty. Gen., 358.) See below, "Deficiency upon examination for commission." Deficiency upon examination for com- mission. — The recommendation of the Aca- demic Board , that a midshipman found deficient upon examination for appointment as ensign be dropped from the service, is not final. The laws providing for the appointment of ensigns do not confer exclusive powers upon the Academic Board; section 1519, Revised Stat- utes, is properly limited to "academic exam- inations," and does not extend to the final examination which is to determine the mid- shipman's fitness for a commission in the Navy. That section was passed in the interest of efficient administration and internal disci- pline of the Naval Academy, and should not 1)6 read into the laws providing for the appoint- ment of ensigns. A contrary conclusion woukl deprive the constitutional appointing power of all jurisdiction over the qualifications of candi- dates for appointment as ensigns. Held, therefore, that the recommendation of the Academic Board in this case may be dis- approved and the midshipman continued in the service until further reports on fitness in his case may be received and considered by the department. (File 5252-36, May 5, 1910.) 754 The Navy. PL 2. REVISED STATUTES. Sec. 1519. A midshipman who develops a physical defect, which it is anticipated might in the future incapacitate him for duty in the Navy, may legally tender his resignation, undated, and place same in the hands of the depart- ment -^vith request that same be dated and accepted if he should be subsequently found incapacitated for service or for promotion by reason of said physical defect or the sequelae thereof; and upon so tendering his undated resignation said physical defect may be waived and a commission issued to him as ensign. The dating and accepting of said resignation upon the occurrence of the condition stated would be entirely legal. (File 5252-50, Maj^ 14, 1912, citing Mimmack's Case, 12 Op. Attv. Gen., 555, 10 Ct. Cls., 584, 97 U. S., 426. See also file Nos. 13261-163-170 concerning waivers of rights to pensions, retirement, etc., by candidates for appointment as second lieu- tenants in the Marine Corps.) The final graduation of midshipmen occurs two years from the date of their formal gradu- ation from the four years' course, and a mid- shipman who, when the date of final gradua- tion arrived, was qualified for final graduation aside from a failure to pass in some subjects of professional examination, and who subsequent- ly qualified in those sul)jects and was given a certificate of final graduation became a gradu- ated midshipman from said date of final grad- uation. (17 Comp. Dec, 298.) See above, "Physical deficiency." Suspension of midshipman without pay. — Where it is within the power of the Secretary of the Navy, with the approval of the President, to dismiss a midshipman, he may, with the approAal of the President, sus- pencl such midshipman for one year without pay for due cause. Since the power to suspend is derived from the power to dismiss absolutely, only such midshipmen as may be subject to dismissal can be so suspended. (C. M. 0. 31-1915, citing file 5252-72, Sept. 20, 1915.) A midshipman suspended for one year under an order of the Secretary of the Navy, with the written approval of the President, which order stated that said suspension was "without pay," is debarred from all the privi- leges and benefits of hie office during said period, including commutation of rations; during the year of suspension the midshipman is practically in the status of one dismissed. (Comp. Dec, Nov. 13, 1915, 177 S. and A. Memo., 3830.) The Secretarjr of the Navy, with the approval in writing of the President, may suspend a mid- shipman for one year without pay for due cause, but only such midshipmen as are subject to dis- missal can be so suspended. A midshipman can not be suspended for one year without pay except in mitigation of a legally authorized pun- ishment invohing dismissal. The law ex- pressly provides that a midshipman can be dis- missed for a single act of hazing only pursuant to the sentence of a court-martial. Since the Secretary of the Navy, acting for the President, can not directly dismiss a midshipman for one act of hazing without sentence of court-martial, it follows that he can not accomplish such dis- missal by any indirect means; and if it were legal to suspend a midshipman without pay for one year in such case, it would be legal to sus- pend him without pay indefinitely, which would amount in effect to a dismissal. (File 5252-72 : 1, Sept. 21, 1915, afiirming file 5252- 72, Sept. 20, 1915.) Where a cadet at the Military Academy had been recommended by the Academic Board to be discharged on account of deficiency in stud- ies, the Secretary of War had power to grant such cadet leave of absence without pay; under the circmnstances he might lawfully have dis- charged the cadet absolutely, and the placing of him on leave of absence was a minor exercise of the power of dismissal. The cadet's status thereby became that of an officer continued on the rolls without pay, instead of that of an offi- cer dismissed absolutely and di-awing no pay. (10 Comp. Dec, 795.) See note to section 416, Re^ised Statutes, under "Suspension of employees." Dismissal ■without court-martial. — Sec- tion 1624, Revised Statutes, article 36, restrict- ing dismissal of officers of the Navy, does not extend to cadets at the Naval Academy, who may accordingly be dismissed from the Acad- emy and from the naval ser\'ice for misconduct without trial by court-martial. There are three sorts of officers known to the Na\"y, viz, commissioned, warrant, and petty (sec. 1410, R. S.); and inasmuch as petty officers may be discharged from the service with bad conduct discharge by sentence of a smnmary court- martial (sec. 1624, R. S., art. 30), it seems that by "officers" in article 36 is meant at most only warrant and commissioned officers. Cadets at the Naval Academy have neither warrants nor commissions; the object of the studies and dis- cipline to which they are subjected dming the whole of the course at the Academy is to fit them for appointment as midshipmen (sec. 1521, R. S.), the lowest commissioned grade of officers of the line (sec. 1362, R. S.), or as second assist- ant engineers (sec. 1394, R. S.), the lowest grade of officers of the Engineer Corps (sec. 1476, R. S.). They are themselves, by statutory defini- tion, not to be included in general in legisla- tion confined to "officers" of the Navy. In the early days of the Academy, when the stu- dents were merely a collection of midshipmen, this was different. The meaning of the word "cadet" is to the same effect. As a cadet- midshipman is, ex \i termini, not a midship- man, and a cadet-engineer not an engineer, so a cadet officer or a cadet, simply, is not an offi- cer. Cadets at Annapolis are not liable to court-martial except under the act of 1874 for hazing (citing 1 Op. Atty. Gen., 276, holding that cadets at West Point are subject to court- martial only where expressly authorized by law), and therefore are not entitled to a priv- ilege which, under article 36, is evidently given only to such as are liable in general to the juris- diction of courts-martial. Accordingly, held that a regulation of 1876, providing that ca/lcts are to be dismissed by the Secretary of the Naw for offenses other than hazing, is valid. (15 Op. Atty. Gen., 634.) The President has power to dismiss a delin- quent midshipman from the Naval Academy for violation of the regulations, and that pow er is not restricted by sections 1229 and 1624 of the Revised Statutes. (Weller v. U. S., 41 Ct. 755 Sec. 1519. PL 2. REVISED STATUTES. The Navy. ("Is., 324.) The Secretary of the Navy's action an February 7, 1!)05, in dismissing a midship- man from the Naval Academy for continued violation of the regulations regarding the use of tobacco, is presmnetl to have been the action of the President; particularly as the President appointed another to till the vacancy, which appointment was signed by the Secretary of the Na\'y by direction of the President. (Wel- lert'. U. S.,4lCt. 01s., 324.) Under the act of March 2, 1895, the Secretary is given power to convene courts-martial for the trial of naval cadets, but it is not mandatory, and the President has the power and authority to dismiss naval cadets, or "' midshipmen, " aa they are now styled, without the intervention of trial by court-martial. (Weller v. U. S., 41 Ct. Cls., 324.) The act of March 2, 1895, and the other laws relating to the Naval Academy have for many years been construed by the Navy Department to authorize the dismissal of students without trial by court-martial, which has often been done. Wliere the meaning of a statute is doubt- ful, the uniform and long-continued construc- tion placed upon it by the department officers charged with its execution is entitled to much weight. (Weller v. U. S., 41 Ct. Cls., 324.) It will not be contended that a midshipman at the Naval Academy can not be dismissed, or "not continued therein," which is the same thing, for deficiency at an examination with- out a trial by coiu-t-martial ; and if the Academic Board can do this, the President can dismiss a midshipman because of a deficiency in conduct, as insubordination or disobedience of orders, particularly when the regulations so provide. (Weller v. U. S., 41 Ct. Cls., 324.) That students at the Naval Academy are and always have been in the naval ser\ice in some capacity has never been doubted, and it was decided in Cook v. United States (128 U. S., 254) that they were "officers" of the United States A\ ithin the meaning of the provisions of the act of March 3, 1883 (22 Stat., 473), respect- ing longevity pay of officers of the Navy. In the case of Morton v. United States (112 U. S., 1), under a similar statute providing longevity pay, it was held that the time of service of a military cadet at West Point is to be regarded as "actual service in the Army." In Hartigan V. United States (196 U. S., 1G9, 38 Ct. Cls., 346) the claimant was summarily dismissed from the West Point ]\lilitary Academy for mis- conduct, and it was held, both in the Court of Claims and in the Supreme Court that he was not an officer within the meaning of section 1229, Revised Statutes, and hence could be dis- missed without trial and conviction l)y court- martial. It is not believed that the law, prop- erly construed, makes any distinction in this respect between midshipmen at the Naval Academy and cadets at the Military Academy. Neither of them holds either a commission or a warrant; both are appointed by the President; those at the Military Academy are called cadets, and those at the Naval Academy are now called midshipmen. There may have been a time in the history of the Government when a midship- man should have been regarded as an officer within the meaning of section 1229, Revised Statutes, and when the students at the Naval Academy were on a different footing in that regard than the students at the Military Acad- emy; but now there are no midshipmen except those appointed to the Naval Academy and undergoing instruction therein or in connection therewith. Under section 1519 midshipmen found deficient at any examination may be dropped from the service. Under section 1547 the Secretary of the Navy, with the approval of the President, may issue regulations and instructions for the Navy, and the regulations of the Naval Academy providing for the dis- missal of midshipmen were presumably made pursuant to such power. (Weller v. U. S., 41 Ct. Cls., 324.) In the case of Hartigan v. United States (196 U. S., 169, 38 Ct. Cls., 346), which held that a cadet at the Military Academy was not an officer within the meaning of section 1229, both courts in their opinions point out a clear dis- tinction between service at the Academy and in the Army, and that while the military cadets are a part of the Army they are not officers of the Army, but rather are undergoing instruction to become such; and in the opinion of the Court of Claims this significant expression oc- curs: "These appointments (to the Academy) are made l)y the President without the ad\ace and consent of the Senate, and it seems plain that Congress did not intend by any legislation that had been enacted to withhold from him the power of summary dismissal for the good of the academv, for such a power can wisely be left to his discretion." (Weller v. U. S., 41 Ct. Cls., 324.) The case of Perkins v. United States (116 U. S., 483, 20 Ct. Cls., 438), where the claimant entered the academy as a cadet-engineer and after graduation therefrom was held by both courts to be an officer within the meaning of section 1229, Revised Statutes, differs from that of an undergraduate midshipman at the Naval Academy, in that the former was appointed pursuant to sections 1522-1525, Revised Statutes, then in force, which required some technical knowledge before admission; that he had graduated from the Naval Academy and had served in the Na\'y two years under orders; that the course then prescribed for cadet-engineers was four years (sec. 1524, R. S.), so that he was no longer a cadet and neces- sarily must have been an officer of some grade, and by his pay had been so recognized. It should also be remarked that it was conceded in the Perkins case that the claimant might have been dismissed for misconduct, under the provisions of section 1525, Revised Statutes, entirely independent of section 1229. (Weller V. U. S., 41 Ct. Cls., 324.) In the case of Baker v. United States (125 U. S., 646), which held that the service of a midshipman at the Naval Academy was service as an "officer in the Navy," within the mean- ing of the statute providing for longevity pay, the Supreme Court in its opinion lays great stress upon the fact that the claimant at the time of his appointment to the Naval Academy was named as a "midshipman" pursuant to the law then in force, and that according to law then in force midshipmen were ninth in grade in the active list of the officers of the Navy. (Weller i-. U. S., 41 Ct. Cls., 324.) 756 The Navy. PL 2. REVISED STATUTES. Sec. 1519. The controlling statutes on the subject relative to the MiUtary Academy are not practically the same as those affecting the Naval Academy, but are essentially analogous and equivalent. As to both appointees it may, therefore, be said that the laws relating to coiu"ts-martial do not prevent dismissal for deficiency in studies or for misconduct. (25 Op. Atty. Gen., 579.) Prior to the act of April 9, 1906, a right to summarily dismiss midshijmien had been asserted and even exercised by successive Secretaries of the Navy, although it had recently been disputed. Almost simultane- ously, however, with this enactment, the Court of Claims, in the case of Weller v. United States, decided April 2, 1906, sustained this right. It seems to the Navy Department quite clear that Congress intended by this law to limit the discretionary power of the Secre- tary of the Navy to summarily dismiss mid- shipmen, and to provide one uniform method of procedm'e by which midshipmen should be dismissed from the academy for misconduct. (FUe 5146-1, July 13, 1906.; The Secretary of the Navy, with the written approval of the President, has the power to dismiss midshipmen for due cause in any case except that in which the cause consists in a "single act of hazing." A midshipman who is recommended for punishment for a "single act of hazing" is thus in the unique position, as compared with other offenses against Naval Academy regulations, of being protected by statute against dismissal except by sentence of a court-martial. (File 5252-72, Sept. 20, 1915; C. M. O. 31-1915.) The Secretary of the Navy, acting for the President, has the power to cUsmiss a midship- man for insubordination. This power, as sus- tained by the Com't of Claims in the case of Weller v. United States, was not taken from him by the act of April 9, 1906 (34 Stat., 104), I^roviding for the trial of midshipmen by comt- martial for hazing. Furthermore, said act relates only to midshipmen "at the Naval AcademJ^" and in this case the midshipman had completed his four years' course at the academy and was undergoing the two years' course at sea prior to final graduation. The dismissal of the midshipman in this case being legal, the records can not be changed so as to show that his resignation was accepted. (File 5252-60, Feb. 14, 1914.) Section 1229 and article 36 of section 1624 of the Revised Statutes did not deprive Congress of power to make any provision for the removal of an officer, even by the Executive who appointed him. It is not within the power of a legislature to deprive its successor of the power of repealing an act creating a public office. (Crenshaw v. U. S., 134 U. S., 99.) See above, under "Deficiency in conduct." Court-martial of midshipmen for haz- ing, etc. — Cadets at Annapolis are not liable to coui-t-martial except under the act of 1874, for hazing. ^15 Op. Att} . Gen., 634, citing 1 Op. Atty. Gen., 276, holding that cadets at West Point are subject to court-martial only as expressly authorized by law.) The commands of the law of 1874 (June 23, 18 Stat., 203), are imperative and require that in all cases where it shall come to the knowledge of the superintendent of the Na- val Academy that any midshipman is guiltj' of the offense commonly knowTi as hazing, "it shall be the duty of said superintendent to order a court-martial." Under these cir- cumstances, the superintendent has not the right to exercise a discretion as to whether he shall order a court-martial for the trial of cer- tain midshipmen in whose case it has come to his knowledge, as the result of a preliminary examination through a board of officers, that they are guilty of the offense of hazing. It therefore only remains for him to order a court- martial for the purpose of trying them, and should they be either convdcted or acquitted by such court-martial the responsibility resting upon the superintendent under the law will have been fully discharged. A determination of the question whether or not such couA-iction or acquittal could be successfully pleaded in bar of a criminal prosecution, instituted in the ci\il courts for an assault or other crime in- volved in the offense of hazing, could not in any possil)le manner aid the superintendent in the execution of the law. The superintendent or the Secretary might, without the least im- propriety, after such trials are had, bring all the facts to the attention of the United States attorney for the district of ]\Iaryland , in which event the question of jurisdiction of the ci\Tl authorities would become a question for the consideration of the Department of Justice. (25 Op. Atty. Gen., 543.) The act of March 3, 1903 (32 Stat., 1198), does not confer upon the superintendent of the Naval Academy or the Secretary of the Na\'y, or upon both conjointly, the power summarily to dismiss from the Academy without trial by court-martial a midshipman found guilty of the offense of hazing. That act is to be read in connection with the act of June 23, 1874 (18 Stat., 203), requiring the superintendent of the Naval Academy to order a court-martial in all cases of hazing which may come to his attention, and there is nothing in the later act showing a purpose upon the part of Congress to disj^ense \\ith the formality of requiring a court-martial for the trial of a midshipman upon the charge of hazing. The phrase, "found guilty," appearing in the act of 1903, when read in connection with the act of 1874, refers to the finding of a court-martial and not of the superintendent or a board of officers other than a court-martial. This opinion should not be applied to cases other than hazing; it is un- necessary to decide that a midshipman may not, under certain circumstances, be sum- marily dismissed from the Naval Academy without first being tried by court-martial. (25 Op. Atty. Gen., 543.) The act of June 23, 1874 (18 Stat., 203), was in terms mandatory that a "court-martial" be ordered by the superintendent of the Naval Academy in any case of hazing which came to his knowledge; that the finding of such court, when appi'oved by the superintendent, should be final; and that the accused, if found guilty, "shall, upon the recommendation of said court, be dismissed." The act of March 3, 1903 (32 Stat., 1198), required the superin- 767 Sec. 1519. Pt.2. REVISED STATUTES. The Navy. tondent of the Naval Academy to "make such rules, to be approved l)y the Secretary of the Navy, as will effectually prevent the practice of hazing;" and ])rovi(lo(i that any cadet " found guilty " of participating in, or encouraging or countenancing such practice, "shall l)e sum- marily expelled from the academy and shall not thereafter be appointed to the corps of cablets or be eligible for appointment as a commissioned ofhcer in the Army or Navy or Marine Corps until two years after the gi-adua- tion of the class of which he was a member." The effect of these statutes was to deprive the proper administrative officer of discretion in dealing with the offense of hazing at the Naval Academy; and to require that midshipmen charged mth hazing be brought to trial by court-martial, to be followed upon conviction by summary dismissal. (File 26283-925, Sept. 4, 1915.) By act of April 9, 1906 (34 Stat., 104), Con- gress repealed 'so much of the acts approved June twenty-third, eighteen hundred and seventy-four and March third, nineteen hun- dred and three, as requires the superintendent of the United States Naval Academy to con- vene a court-martial in all cases when it shall come to the knowledge of the said superin- tendent that any midshipman lias been guilty of the offense commonly known as 'hazing,' and declares the finding of a court-martial so convened, when approved by the said super- intendent, final, and directs that any midship- man found gviilty by such court-martial shall be summarily dismissed from the said Academy. ' ' By said act of 1906 it was further provided that "the offense known as 'hazing' may hereafter be proceeded against, dealt with, and punished aa offenses against good order and discipline and for violation and breaches of the rules of said Academy." Thus Congress has removed the distinction previously made between hazing and other offenses committed by midshipmen. But one restriction is placed upon the discretion of the administrative officers in dealing with the offense of hazing, as distinguished from other offenses committed by midshipmen, and that is that "no midsliipman sliall be dismissed for a single act of hazing except under the pro- visions of section three of this act," viz, pursu- ant to the sentence of a court-martial as pro- vided by the act of June 23, 1874. (File 26283- 925, Sept 4, 1915.) Trial by court-martial is not now required in any case of hazing, it being left entirely to the discretion of the superintendent whether such trial shall be had. If the superintendent, in the exercise of the discretion thus expressly vested in him by the act of 1906, decides that a midshipman should be tried by court-martial for hazing, then the superintendent's decision must be approved by the Secretary of the Navy before the superintendent would be authorized to proceed under the act of 1874 to order a court-martial and cause the accused midship- man to be brought to trial. If the Secretary of the Navy approves tlie superintendent's de- cision that a trial be had, tlien the court-martial is not required, imder the act of 1906, to impose a sentence of dismissal, but may sentence the accused, if convicted, to any punishment au- thorized by the act of June 23, 1874 or by the act of Marcli 3, 1903, or l)y the rules of the Naval Academy. (File 2(5283-925, Sept. 4, 1915.) If the accused is charged with only 'a single act of hazing," and the superintendent decides not to bring nim to trial by com't-martial, or the Secretary of the Navy does not approve the superintendent's recommendation that sucli trial be had, then the law of 1906 says explicitly that he shall not be dismissed. He may, how- ever, be punished by the superintendent in accordance with the rules of the academy, otherwise than by dismissal. (File 26283-925, Sept. 4, 1915.) If the accused is guilty of more than "a single act of liazing, ' ' he may be dismissed with- out trial by court-martial; but in that event he must be proceeded against in accordance with section one of the act of 1900, which details the procedure to be followed in any case in which the superintendent "shall believe the contin- ued presence of any midshipman at the said Academy to be contrary to the best interests of the ser\dce;" that is, there must be a written report by the superintendent, a reference of the report to the accused by the Secretary of the Navy, with opportunity for the accused to make written reply thereto, and the written approval of the President before the dismissal may be executed. In addition, if any issue of fact is raised by these proceedings, there must be a "board of inquiry" convened by the Secretary of the Navy to pass thereupon. (File 26283- 925, Sept. 4, 1915.) The words, ' ' a single act of hazing, ' ' are to be taken in their literal sense. If an accused was guilty of but one "act" of hazing he can not be dismissed without trial, notwitlistandmg that several different persons may have been victims of the "single act." Thus, one order obeyed by several midshipmen would be only a ''single act" of hazing, although it might legally be more than one offense. On the other hand, if one midshipman in hazing another gives several orders which are obeyed, this would constitute several "acts" although there was only one victim and the several distinct transactions occurred at the same place and very near each other in one continuing attempt to defy the law. (File 26283-925, Sept. 4, 1915.) A midshipman who, while absent in a dis- tant and foreign station, was nominated and confirmed to be an ensign, "subject to exami- nation," but who was never examined, never became an ensign; and having in the meantime been brought to trial by coui't-martial, was properly tried as a midshipman. (16 Op. Atty. Gen., 550.) Cadets admitted to the NaA'al Academy on 10 May and 4 September, 1886, respectively, became naval cadets in the full sense of the term upon the dates named; they had, on those dates respectively, been duly nominated to the place, accepted the nomination, passed suc- cessfully the examination required by law, taken the oath prescribed for naval cadets, been assigned to and entered upon the discharge of the duty pertaining to the position and from those dates their salaries commenced. Their appointments, although not issued until the 11th of October, 1886, relate back by express recitals to these dates respectively, and are conclusive 758 The Navy. Pt.2. REVISED STATUTES. Sec. 1519. e^idence of the appointments at the date afore- said. The appointments accordingly took ef- fect on 10 May and 4 September, 1886, so as to render them liable to trial bv court-martial. (18 Op. Atty. Gen., 507.) The minority of some of the members of a court-martial which tried a midshipman and sentenced him to dismissal from the Na^7• does not invalidate the proceedings of the court- martial, not^^ithstanding that at common law minority might have been such an objection as would invalidate the verdict of a jury or a judg- ment thereon. \\Tiatever effect this fact would have in a common law court, it has noth- ing to do with the action of a court-martial which exists by A-irtue of statute and regula- tions conformable thereto. (16 Op. Atty. Gen., 550.) To constitute the offense of hazing at the Naval Academy, under the act of June 23, 1874, chapter 453, it is essential that the Aictim should be a new cadet of the fourth class. The act does not define the offense against which the penalty is denounced. This is not unusual. Congress frequently affixes a penalty to a com- mon law offense by name, \vithout defining it. In such cases resort must be had to the com- mon law to ascertain the ingredients of the of- fense. In this case the statute is local to the Naval Academy, and the offense named is un- known, either to the common or statutory law of the land. Naval cadets could not be guilty of an '"offense" unless there was some rule or regulation prescribed by competent authority to be offended. Reference must therefore be had to the rules and regulations in force at the Naval Academy for a definition of the "offense commonly known as hazing." An exhaustive examination of the rules, regulations, and or- ders on the subject shows that to constitute the offense of hazing as understood at the time of this enactment it was essential that the \ictim of the maltreatment should be a new cadet of the fourth class. Accordingly, held that, unless the charge on which the cadet is arraigned al- leges that the A-ictim of the maltreatment or hazing was a new cadet of the fourth class, a court-martial organized under the statute would not have jurisdiction to try it. If the charge makes the allegation and the proof fails to maintain it, the court-martial should acquit the accused. A charge alleging that the Aic- tim of a cadet's maltreatment was a candidate for admission would not come within the juris- diction of a court-martial organized under this statute, nor would proof that the xictim was a candidate authorize con\'iction on a charge properly drawn. (18 Op. Atty. Gen., 292.) The act of 3 March, 1903 (32 Stat., 1198), pro- \ide3 that the superintendent of the Naval Academy shall make such rules "as will effect- ually prevent the practice of hazing," and that a "cadet found guilty of participating in or encouraging or countenancing such practice shall be expelled from the Academy. ' ' Hazing has such a well-known meaning that it need not be defined by rules under this statute; accord- ingly, the dismissal of a midshipman pursuant to a sentence of court-martial upon the r harge of hazing was legal, the particular acts set forth as constituting such offense being enumerated in the specifications imder said charge. (Mel- vin V. U. S., 45 Ct. Cls., 213.) The regulations of the Naval Academy of 1876 described hazing as "molesting, annoy- ing, ridiculing, maltreating, or assuming unauthorized authority over the new cadets of the fourth class" by the older cadets. A charge preferred against a midshipman for violation of the act of June 23, 1874, to prevent hazing at the Naval Academy was within the jm-isdiction of the court-martial convened pursuant thereto, the specifications of the charge setting forth that the offense was committed upon "a cadet of the fourth class," named therein, and consisted of "pulling the nose" and "otherwise maltreating" and "striking at" and "otherwise annojing" the said cadet; it elsewhere appearing in the record that the person charged with the offense was then a cadet of the second class. Con- ceding that the case was one of "personal rencounter or fight" between the parties, and that the facts in e\'idence make out a case of that sort, this would go only to show that the decision of the court was wrong in con\icting the accused, not that it acted without jurisdic- tion ; but it was the duty of the court to deter- mine the truth or falsity of the charge upon the testimony adduced, and its decision when regularly approved by the proper authority has the effect of a final judgment which can not be collaterally brought into question. Whether the decision was correct or erroneous could not affect the validity of the court's finding when regularly approved. (18 Op. Atty. Gen., 376.) A member of the fourth class at the Naval Academy who failed to pass his examinations and who was reappointed to the same class the following year was, during said year, as much an "older cadet" within the definition of the offense of "hazing" as a cadet who originally entered at the same time and had been advanced to a higher class. All who are not "new cadets of the fourth class" and there- fore liable to be victims of "hazing," should be held to be "old cadets" and capable of being the perpetrators of the offense. The length of service at the Academy which takes a cadet out of the one category and into the other can not be determined by any general rule but must be governed by the local cus- toms and traditions and the popular meaning of the terms. (18 Op. Atty. Gen., 507.) President's approval of sentence of dismissal or suspension. — The act of 23 June 1874 (18 Stat., 203 ), pro\-iding for the court- martial of cadet-midshipmen at the Naval Academy is not repealed by the act of 2 March 1895 (28 Stat., 838), which provides that sentences of suspension and dismissal approved by the superintendent "'shall not be carried into effect until confirmed by the President." Accordingly, held that the dismissal of a mid- shipman upon sentence of a court-martial convened under the act of 1874, approved by the superintendent, was legal. (Melvin v. U. S., 45 Ct. Cls., 213.) . . As a midshipman is neither a commissioned nor a warrant officer, a sentence of dismissal imposed bv court-martial convened by the commander-in-chief of the Atlantic Fleet need 759 Sec. 1519. Pt. 2. RE VISED STAT UTES. The Navy. not Ix' suhinittcd to tho President for con- lirmation, hut may l>e carried into execution upon conlirmation of the olticer ordering; the court, as provideil by article 53, Articles for the Government of the Navy (sec. 1624, R. S.); neither the President nor tne Secretary of the .Navy has lawful authority to approve or dis- a])prove the sentence in such a case (citing II Op. Atty. Gen., 251). (File 26262-198, Nov. 13, 1<)08.') As a midshipman is neither a commissioned nor warrant officer, it seems that he may be dismissed pursuant to a sentence of a court- martial without the express approval thereof by the President, unless there be some explicit statutory provision requiring such executive ai)proval. (16 Op. J. A. G., 70, Nov. 2, 1911.) In the case of a midshipman tried by general court-martial by order of the commander-in- chief of the Atlantic Fleet and sentenced to dismissal, the commander-in-chief ha\'ing approved the proceedings, finding, and sen- tence, and stated that, "in conformity -with article 53 of the Articles for the Government of the Navy (section 1624 of the Re\'ised Statutes), the record is respectfully referred to the Secretary of the Navy for transmittal to the President," the action of the convening authority was approved by the Secretary of the Navy, October 6, 1909, with the statement that'reference to the President is "unnecessary in the case of midshipmen. "(G. C. M. Order No. 36, Oct. 13, 1909.) It is to be noted that the act of March 2, 1895 (28 Stat., 838), which authorized the trial of midshipmen by "general courts-martial" (con- vened by the Secretary of the Navy) for any offense, provided that sentences of suspension and dismissal must be confirmed by the President before being executed. It may be contended that approval of the President is necessary before such sentences may be exe- cuted in hazing cases, where the court-martial is convened by the superintendent under the act of 1874. It would be advisable to have such sentences so confirmed, thus avoiding any question on this ground, although this is not believed to be necessary. (File 26283-925, Sept. 4, 1915; C. M. O. 31-1915.) The notice to a midshipman by the Secretary of the Navy that the President had approved the sentence of a court-martial in 1868 dis- mi.s,siiig him from the Navy is evidence both of approval and promulgation. The President acts through the Secretaries of War and of the Navy in such matters; a promulgation is not necessarily a publication in a newspaper. (16 Op. Atty. Gen., 550.) In the case of a midshipman tried by general court-martial by order of the commander in chief of the North Atlantic Fleet and sen- ten( ed to be dismissed from the United States naval service, the proceedings, findings, and sentence were approved by the convening authority and the record was submitted by the department to- the President "in con- formity \vith article 53 of the Articles for the Government of the Navy (sec. 1624, R. S.), with the recommendation that the sentence be confirmed, but that, in \dew of the fact that the court unanimously recommended clemency it be commuted to the punishment set forth below," viz, that he "be turned back into and become a member of the next lower class of mid.shipmen, the present first class at the United States Naval Academy; to continue in the meantime on probationary sea duty; to take temporary rank at the head of the class to which he is reduced; and, finally, to take rank as a member of that cla.ss upon its graduation at the end of the prescribed six years' course, in accordance with the requii-ements for deter- mining the same as applied to members of that class"; which action was accordingly taken by the President as recommended. (G. C. M. Order No. 77, Sept. 1, 1905. Note: On March 1, 1909, the sentence of dismissal imposed by a general court-martial convened by the com- mander in chief of the Pacific Fleet for the trial of a midshipman was mitigated by the Secretary of the Navy in the same manner as set forth above, without submission to the President; see G. C. M. Order No. 10, Mar. 1, 1909. In another case, on the same date, the Secretary of the Navy, without reference to the President, mitigated a sentence of dis- missal imposed by a general court-martial convened by the commander in chief of the Pacific Fleet, so that the accused midshipman, if commissioned at the completion of his final examination, "will be commissioned as next to the lowest number in his class" ; see G. C. M. Order No. 9, Mar. 1, 1909.) When sentence of dismissal is execu- ted. — Where the commander in chief who con- vened a court-martial approved a sentence of dismissal imposed by said court upon a mid- shipman, but concluded with the statement that "the record is respectfully referred to the Secretary of the Navy," held that this action did not show an intention on the part of the convening authority to execute the sentence at the time, but implied that the record was for- warded to the Secretary of the Navy in order that the midshipman might be dismissed and the sentence executed by the department; accordingly, mere publication by the com- mander in chief of his action did not operate to dismiss the midshipman from the service, but the sentence remained unexecuted and sub- ject to mitigation by the President in the ex- ercise of his pardoning power. (File 26262-198, Nov. 13, 1908. Note: In this case the Pres- ident issued a formal pardon to the midship- man in question, on condition that he take rank at the foot of his class and if commissioned be commissioned as the lowest number therein.) Arrest of midshipman pending investi- gation and action. — A midshipman may properly be placed under arrest pending action on a recommendation by the superintendent of the Naval Academy for his dismissal. The fact that a court of inquiry may be ordered to investigate the allegations against him does not of itself require his being released from arrest. (C. M. O. 22—1915, citing file 28028-203:1, June 8, 1915.) Minor punishments imposed without court-martial. — The act of March 2, 1895 (28 Stat., 838), did not deprive the proper administrative officers of the power to impose punishment other than dismissal for \aolation of Naval Academy regulations, where the officers of the academy consider that the best inter- 760 The Navy. Ft. 2. REVISED STATUTES. Sec. 1519. ests of the institution will be promoted by the imposition of minor punishments by them- selves, without the intervention of a court- martial or without resorting to the power of dismissal. (File 26283-925, Sept. 4, 1915.) Effect of dismissal. — There is no law pro- hibiting the appointment of a former midship- man as an officer of the Navy because of his dismissal from the Na^'al Academy on Septem- ber 30, 1915, such dismissal not ha\ang been for hazing nor pursuant to sentence of a court- martial, but in accordance with section 1 of the act approved April 9, 1906 (34 Stat., 104\ upon investigation of charges consisting prin- cipally of false swearing. Accordingly, the question whether such appointment should be made is one of policy and not of law. (FUe 26283-925:4, Aug. 7, 1916.) The only offense, if any, which creates a statutory disqualification for reappointment of a midshipman is that of hazing. The spirit of the laws is, however, against the reappointment of any person who has been dismissed from the Navy, as will be seen by reference to section 1441, Revised Statutes. (File 5252-43, Oct. 5, 1911.) The act of June 23, 1874 (18 Stat., 203), pro- vided for the trial by court-martial and dis- missal of any midshipman guilty of hazing, and concluded, "and the cadet so dismissed from said Naval Academy shall be forever ineligible to reappointment to said Naval Academy." The act of March 3, 1903 (32 Stat., 1198), pro- vided that any midshipman found guilty of participating in or encouraging the practice of hazing should be summarily expelled from the Academy and should not thereafter be re- appointed to the Academy or be eligible for appointment as a commissioned officer in the Army, Na\y, or Marine Corps "until two years after the graduation of the class of which he was a member." The act of April 9, 1906 (34 Stat., 104), pro'vides that no midshipman shall be dismissed for a single act of hazing except after trial and conviction by court-martial and expressly repeals portions of the two laws above cited, but says nothing about ineligibility for reappointment of midshipmen dismissed for hazing, which appears, therefore, to continue in effect. (File 5252-43, Oct. 5, 1911.) The act of August 29, 1916 (39 Stat., 589), provides that "all former officers of the United States naval service, including midshipmen, who have left that ser\dce under honorable con- ditions * * * and who shall have enrolled in the Naval Reserve Force, shall be eligible for membership in the Fleet Naval Reserve." Held, that a midshipman who was dismissed by sentence of court-martial is not eligible for membership in the Fleet Naval Reserve, al- though he has been pardoned for the offense for which dismissed. (File 26282-287:4, Mar. 16, 1918; C. M. O. 30-1918; 31 Op. Atty. Gen., 225.) A midshipman having been legally dis- missed, the records can not be changed to show that his resignatioti was accepted. (File 5252- 60, Feb. 14, 1914.) The act of June 23, 1874 (chapter 453), to prevent hazing at the Naval Academy and pro- viding that a cadet-midshipman dismissed pur- suant thereto "shall be forever ineligible to reappointment to said Naval Academy" was designed to cut off all chance of reinstatement or reappointment fi-om such cadet; accordingly, without considering very carefully what the effect of a pardon by the President might be, or whether after an unconditional pardon a re- appointment is strictly legal or not, held that the President would not be justified in al)ro- gating the clear intent and plain meaning of the statute, and the Attorney General wishes strongly to advise against any such cotirse as will tend, by indirection, to nullify the statute; the parties who consider themselves aggrieved should apply to Congress for a change of the law; while the statute remains in force the President should not interfere to relieve the party found guilty. (15 Op. Atty. Gen., 80. See 31 Op. Atty. Gen., 225, noted under sec. 1441, R. S.) _ The question whether a dismissed midship- man is eligible to vote depends upon the law s of the State in which he claims the right, and is not one under the jurisdiction of the Navy Department. The question whether a dis- missed midshipman is elieible to hold a State office is similarly not under the cognizance of the Navy Department. With reference to his eligibility to hold a Federal position, under tne civil 8er\ace rules and regulations any person who has been dismissed from the military or naval service is, it is understood, barred from examination for the United States civil service within one year from the date of such dismissal. Likewise it is pro\'ided by the Federal statutes that any officer who has been dismissed from the Navy by sentence of court-martial shall never again become an officer of the Navy. Also, with specific reference to midshipmen it is provided by law that any midshipman sum- marily expelled from the Academy for hazing shall not thereafter be reappointed or be eli- gible for appointment as a commissioned officer in the Army, Navy, or Marine Corps until two years after the graduation of the class of which he was a member. (File 5252-79, June 19, 1916.) Reinstatement of midshipmen. — A mid- shipman who has been dismissed for misconduct by order of the President pursuant to law can not be legally reinstated in his former position by revocation of the order of dismissal. The only way in which such a former midshipman can legally obtain readmission to the Naval Academy would be by new appomtment in tne manner pro\dded for any other candidate. The President's action can not, upon the sub- mission of additional evidence, be reconsidered and revoked, and the midshipman thereby reinstated in his former position. (File 5252- 72, Sept. 27, 1915; affirmed, 5252-73, Oct. 1, 1915; sustained by Attorney General, Oct. 15, 1915, 30 Op. Atty. Gen., 457. The President is not authorized to reopen the case of a midshipman who has been dis- missed from the Naval Academy with a view to revoking the order of dismissal and rein- stating him. (30 Op. Atty. Gen., 457, follow- ing 25 Op. Atty. Gen., 579.) A midshipman who has satisfactorily com- pleted the course for the iirst year at the Naval Academy but who in the following year is found deficient and allowed to resign need not be re- 761 Sec. 1520. Pt. 2. REVISED STATUTES. The Navy. quired, when j^'iven a new appointment, to ^o o\ er the course for the first year a second time, J)ut may lepially recommence the course for the second year, provided that such action is rec- ommended by the Academic Board. (('. M. O. 12—1915, citing fde 52.52-65, Mar. 12, 1915.) For other cases poe notes to sections 1514, 1515, and 1517, Revised Statutes. Sec. 1520. [Academic course.] The academic course of cadet midshipmen shall be six years.— (3 Mar., 1873, c. 230, s. 1, v. 17, p. 555.) Amendments to this section were made by the laws noted under section 1512, Revised Statutes, which changed the title of students at the Naval Academy to "mid- shipmen;" and by act of March 7, 1912 (37 Stat., 73), which provided "that the course at the Naval Academy shall be four vears." By act of March 4, 1917 (39 Stat., 1182 1, it was provided that "the President, in his discretion, is authorized to reduce the course of instruction at the Naval Academy from four to three years for a period of two years from the date of the approval of this act, and may during said two years graduate classes which have completed a three-year course." By act of April 2, 1918 (40 Stat., 501), it was pro\dded "that the President be, and he is hereby, authorized, until August first, nineteen hundred and twenty-one, to reduce, in his discretion, the course of instruction at the United States Naval Academy fi'om four to three years and to graduate classes which have completed such reduced courses of instruction." By act of August 5, 1882 (22 Stat., 285), it was provided "that the Secretary of the Navy may prescribe a special course of study and training at home or abroad for any naval cadet;" as to change of title from "naval cadet" to "midshipman" see note to Section 1512, Re^^sed Statutes. By act of March 4, 1913 (37 Stat., 891), it was pro\dded that "hereafter the service of a midshipman at the United States Naval Academy, or that of a cadet at the United States Military Academy, who may here- after be appointed to the United States Naval Academy, or to the United States Military Academy, shall not be counted in computing for any purpose the length of service of any officer in the Navy or in the Marine Corps." By act of May 20, 1886 (24 Stat., 69), provision was made for instruction at the Naval Academy as to the effect of alcoholic drinks and narcotics, and for the removal of anv officer, superintendent or teacher who sKall refuse or neglect to comply with this pro\'ision. Sea service as part of six-year course. — As shown by the regulations' governing the Naval Academy, sea service for several years, and "other than in practice ships," has uni- formly been a part of the academic course at the Naval Academy since its establishment until now. Naval education before the estab- lishment of the academy was, of course, obtained in great measure whilst the student (midshipman) was undergoing sea 8er\T.ce. The earliest appointees to the academy (excluding the midshipmen who were at first collected from service and sent thither), which appointees were designated acting mid- shipmen, after a partial course on shore were sent to sea for several years, and then returned to Annapolis and finished their studies there. These appointees at the close of the earlier course on shore received a certificate which testified to their fitness to go to sea; and before the end of their sea service they became mid- shipmen, continuing, however, to be students of the academy. Subsequently (1851) the two previous courses on shore pursued by appointees to the academy, one before and the other after sea serAdce, were consolidated into a single term of four years preliminary to sea service. This system has continued in existence ever since; the act of July 16, 1862 (ch. 183), in the meantime requiring students to be styled midshipmen throughout the whole course, and this style having been again changed to that of cadet-midshipmen by the act of 1870. (15 Op. Atty. Gen., 637; see sec. 1512, R. S., and note thereto.) The regulation issued by the Secretary of the Navy requiring the students or midship- men at the Naval Academy, after the comple- tion of their purely academic studies, to per- form a term of duty on shipboard in order to acquaint themselves with practical navigation and seamanship, is a perfectly valid regulation; and the act of Jidy 11, 1862, section 11 (12 Stat., 585), providing that students at the Naval Academy shall be commissioned en- signs if successful upon their final graduating examination, should be construed as giving distinct legislative sanction to the regulation of the department, then in force, by which that examination was reqiured to be taken after completion of this period of instruction on shipboard. It must be assumed that Con- gress, when it made the law of 1862, had in mind the regidations which had been pre- scribed and enforced under its own authority, and which, so long as they were in operation and remained unchanged by competent au- thority, had, as Congress well knew, the effi- ciency of a statute. (11 Op. Atty. Gen., 1.58.) The last two years of the academic course of cadet-midshipmen were spent at sea in other than practice ships. After four years at the academy they were temporarily detached from that institution, by orders of the Navy Depart- ment, and were sent to sea singly or in squads. On shipboard they performed such active duties as were assigned to them. At the end of the two years they were required to return and did return to the Naval Academy, where thev were subjected to a "final graduating ex- amination" before the Academic Board. If successfid at siich examination they received appointments as midshipmen, and were there- after classified in the Navy Register as having "graduated " at that date- and they were never 762 The Navy. Ft. 2. RE VISED STAT UTES. Sec. 1520. so designated, -either in the Navy Register or elsewhere, until after they had passed snch examination at the end of the six years' course. (U. S. V. Redgrave, IIU U. S., 474, 475.) The words "final graduating examination" in section 11 of the act of July 16, 1862, chapter 183, and "graduating examination" in section 12 of the act of July 15, 1870, chapter 295, signify that examination which under the reg- ulations of the Naval Academy takes place after the prescribed term of sea service has been performed. (15 Op. Atty. Gen., 637; recon- sidered and affirmed, 16 Op. Atty. Gen., 296.) The "final graduating examination" re- ferred to by the act of July 16, 1862 (12 Stat., 583), wliich provided that midshipmen pass- ing such examination shall be commissioned ensigns, was not the final academic examina- tion of the Naval Academy, but the last ex- amination referred to in the regulations exist- ing at the time when the act was passed, and which required a final examination after cer- tain sea service. (Benjamin v. U. S., 10 Ct. Cls., 474.) The statute in express terms provides that "the academic course of cadet-midshipmen shall be six years." If the Navy Department had assumed to make any regulations by which the final graduation should take place in less time, such regulations woiUd have been void. But it did not so assume. It arranged for a two-year coTirse afloat as a part of the academic course, and exacted a preliminary examina- tion to test the cadet's qualifications therefor. But the cadet afloat was a member of the academy. He still was subject to a final ex- • amination at that institution, and without such examination sTiccessfully sustained never be- came a graduate. He was not so denominated until then, either in the Navy Register or else- where; and it was not until that final test had been sustained that, either by the practice of the academy or by the provision of the statute, he did or could receive his certificate of grad- uation. There is a very plain distinction be- tween his case and that of a cadet-engineer, fully explained in United States v. Redgrave (116 U. S., 474, noted below). (Crenshaw v. U. S., 134 U. S., 99.) The regulations prescribing the qualifica- tions for appointment of cadet-engineers fixed a higher average age by two years for cadet- engineers entering the academy than was required by law for cadet-midshipmen so en- tering. After completing the four-year course, cadet-engineers were permanently detached from the academy, and were never required to return to that institution. They remained in active service at sea, or upon other duty, two or three years or longer, until vacancies oc- curred in the grade of assistant engineer, when they were ordered, singly or in groups, for ex- amination for promotion, under the provisions of section 1392 of the Revised Statutes, before a board of engineer officers which held its sessions at Philadelphia. (U. S. v. Redgrave, 116 U. S., 474, 475.) The certificate given to the midshipman at the end of four years spent in the academy dif- fered in its terms from the certificate issued to the cadet-engineer in the words "preparatory to the two years' course afloat." Cadet-engi- neers were not undergraduates when they were performing the service incident to the two years following their study at the academy, but were then in the discharge of the duties incident to a period between graduation and promotion. The cadet-midshipman at the end of the two years' course afloat was required to return to the academy, subjecting himself again to some extent to the jurisdiction of the institution in order that an academic board might determine whether his acquirement afloat was sufficient, in connection with his scholarship at the insti- tution, to justify his certificate of graduation. His education was theoretical and practical; the one he acquired in the immediate institu- tion, the other on the high seas; but each ac- quii'ement came within the course of study covered by a period of six years. According to the decision of the Supreme Court the term of service of a cadet-engineer was but four years. (Harmon i;. U. S., 23 Ct. Cls., 132.) Sea service eliminated by reduction of course to four years.^ — Prior to the act of March 7, 1912 (37 Stat., 73), the course at the Naval Academy was six years (sec. 1520, R. S.), the first four of which were spent in pursuing the academic studies at the academy, and the remaining two years at sea, upon the successfid termination of wMch, as determined by a final examination, the midshipmen were commis- sioned ensigns. The four years at the academy constituted an undergraduate course, and the two years' service at sea was in the nature of a postgraduate course. The act of May 13, 1908 (35 Stat., 128), made two pay grades for mid- shipmen by providing that those at the acad- emy, that is, those in the undergraduate course, should receive pay at the rate of $600 per an- num, and that after graduation from the acad- emy, that is, after completing the four years' undergraduate course and while performing the two years' service at sea^the postgraduate course^they should receive pay at the rate of $1,400 per annum. The effect of the act of March 7, 1912, was to eliminate the two years' service at sea — the postgraduate course — and also the pay grade pro^dded for those thus previ- ously serving. It follows, therefore, that the only grade of midshipmen now authorized by law is that for those pursuing the four years' course at the academy. (20 Comp. Dec, 141. Note: The act of May 13, 1908, 35 Stat., 128, contained the following provision, which is that referred to in this decision: "The pay of mid- shipmen shall hereafter be six hundred dollars per annum while at the Naval Academy, and one thousand four hundred dollars per annum after graduation from the Naval Academy.") The effect of the act of March 7, 1912 (37 Stat., 73), was to eliminate the two years at sea and also the pay grade provided for those previously serving at sea. It follows, there- fore, that the only pay for midshipmen now authorized by law is that for those pursuing the four years' course at the Naval Academy, viz, $600 per annum, and this is the base pay of midshipmen within the meaning of the act of August 29, 1916 (39 Stat., 587), establishing the Naval Reserve Force and pro\dding that "the annual retainer pay of officers of the Fleet Naval Reserve shall be two months' base pay •54641°— 22- -49 763 Sec. 1620. Pt.2. REVISED STATUTES. The Navy. of the corresponding rank in the Navy." (23 Comp. Dec., 279.) For laws governing pay of midshipmen, see note to Section ]55(), Revised Statutes. Sea service may be made part of four- year course. — Lender existing laws the curric- uhim at the Naval Academy may be so changed by the Secretary of the Navy as to permit of the following: "To send one undergraduate class of midshipmen to sea for one year and have them pursue a course on board sHip — at the end of the year return them to the Naval Academy for examination in the studies pursued; the Academic Board to lay out a course to be pur- sued and the subjects in which to be examined. The course to be entirely practical in its nature and include na\agation, ordnance and gun- nery, seamanship, and engineering." (File 5252-76, Apr. 1, 1916.) The course of instruction for midshipmen, whether pursued at the Naval Academy or else- where, is a matter of regulation in the discre- tion of the Secretary of the Navy; there is noth- ing contained in the laws relating to midship- men which would preclude the Secretary of the NaAy from sending one class of midshipmen to eea for a year. (File 5252-76:1. May 1, 1916; affirmed, file 5252-76:2, May 3, 1916.) Former midshipmen not required to repeat coirrse on reappointment. — A mid- shipman who has satisfactorily completed the course for the first year at the Naval Academy but who, in the following year, is found defi- cient and allowed to resign, need not be re- quired, when given a new appointment, to go over the course for the first year a second time, but may legally recommence the course for the second year proAdded that such action is rec- ommended by the Academic Board. (C. M. O. 12—1915, citing file 5252-65, Mar. 12, 1915.) _ Leave of absence during course. — A mid- shipman granted a temporary leave of absence while attached to and serving on a vessel at sea in other than practice ships was not thereby detached from duty at sea on board said vessel and continued entitled to the higher rate of pay EroA-ided by law for such duty. (14 Comp. 'ec, 208.) Midshipmen are not merely students being educated at the expense of the Government, but are officers in the naval ser^dce and as such their salary, fixed by law, can no more be increased or diminished than can the salary of any other officer in the naval service which is fixed by law. Accordingly, where granted leave of ab- sence by the Secretary of the Navy for sickness or other cause, they are still entitled to pay during the period of such leave at the same rate they were receiving at the academy. (8 Comp. Dec, 410.) For other cases see note to section 1519, Re- vised Statutes, under "Suspension of mid- shipman without pay." Whether service of midshipmen during course at academy is ' " service "' in Navy. — The question involved is whether plaintiff, while he was a midsliipman, was serving as an officer or enlisted man m the Navy, within the meaning of the act of March 3, 1883 (22 Stat., 473), pro\iding for crediting officers with the actual time that they may have "ser\-ed" as officers or enlisted men in the Regular or Volun- teer Army or Navy, or both. The Government contended that it was immaterial whether as a student he is or is not to be regarded as an officer of the Navy, because he did not, whilst a student at the Naval Academy, ' ' serve " either as an officer or an enlisted man in the sense of the act of 1883. It was denied l)y the United States that the entry of a pupil into the acad- emy is his entry into the naval service, or that the period of his pupilage is actual service with- in the meaning of the act of 1883; and it was argued that he does not enter into actual service until he is appointed either in the line of the Navy, the Marine Corps, or the Engineer Corps; that as a student he does not serve but is jMoparing to serve; that he does not render ser\ice to the Government but is receiAing favors from it; that he can only commence serving after his graduation, such service de- pending upon his graduating merit; and that compensation is given him not as a payment for service rendered but as a gratuity and an allowance made to him for his support in his preparation for ser\ice to be rendered: Held, that claimant is entitled to be credited, under the act of March 3, 1883, with the time he so served as a midshipman, on the ground that ser\ice as a midshipman at the Naval Academy was service as an officer in the Navy. (U. S. V. Baker, 125 U. S., 646. Note: In this case the claimant was appointed a midshipman on Sept. 30, 1867, and continued to serve as such after the act of July 15, 1870, sec. 12, 16 Stat., 334, which changed the designation of students to "cadet-midshipmen." The decision in this case was followed in U. S. v. Cook, 128 U. S., 254, in the case of a cadet-midshipman appoint- ed after the act of July 15, 1870. See Morton' V. V. S., 112 U. S., 1, holding that the time of service of a military cadet at \X"est Point is to be regarded as "actual service in the Army," under a statute pro\iding longeAity pay. See also note to sec. 1512, R. S.) It is true that a student is at the Naval Acad- emy only for education, but the education is at the request and for the benefit of the Govern- ment rather than of himself. A raw recruit is not sent to the front until he has had a course of instruction, discipline, and drill in camp. That the time thus spent would constitute serv- ice in the Army no one would doubt. Edu- cation at the academy, though of a higher order, is required and justified by the same principle. (Baker v. U. S., 23 Ct. Cls., 181; affirmed, 125 U. S., 646.) In the computation of their longevity pay, officers of the Naval Reserve Force are entitled to credit for previous ser\ice in the Navy as cadet-engineers. (24 Comp. Dec, 629.) In the case of Mo^er v. United States (42 Ct. Cls., 86), it was decided that a student at the Naval Academy under instruction during the Civil War ' 'served " during the Ci-vil War within the meaning of the act of March 3, 1899, section 11 (30 Stat., 1007), relating to the rank and pay of retired officers who served during the Civil War. This decision followed the doctrine laid down in Baker v. United States (125 U. S., 646). In the case of Jasper v. United States (43 Ct. Cls., 368), it was decided that, under identical conditions, the claimant did not "serve" during the Civil War while 764 The Navy. Pt.2. REVISED STATUTES. Sec. 1521. a student at the Naval Academy, and that the decision in the Moser case had been erroneously made, in ignorance of the act of June 29, 1906 (34 Stat., 554), which limited the benefits of Ci^dl War service to any officer who served during the Civil War ' 'othei-wise than as a cadet." Held, that no appeal having been taken from the decision in the Moser case that decision, notwithstanding that it may have been in error, is final and binding upon the Government and entitles the claimant, so long as he may be on the retired list of the Navy, to the pay benefits provided by law for retired officers who "served" during the Civil War; that the law of a case may sometimes be settled wrong, but when it is once settled it is none the less final; that the court could not have been right in both theM Dser and the Jasper cases, but that its conflicting decisions ' 'made the law" in each of the two cases; and accord- ingly that Moser is entitled to increased pay on the retired list in accordance with the former decision in his case for periods subse- quent to that covered in the former suit and for which the accounting officers of the Treasury had refused to allow such increased pay. (Moser v. U. S., 49 Ct. Cls., 285.) The decision of the Court of Claims that a retired officer who was a student at the Naval Academy during the Q\\\\ W^ar is entitled to the increased pay pro\-ided for retired officers who "served" duiing the Civil War by the act of March 3, 1899 (30 Stat., lOO?), does not estop the Secretary of the Navy from denying such officer the increased rank on the retired list pro^dded by the same law; the Navy Department being of opinion that time spent by students at the Naval Academy under instruction was not service in the Navy within the meaning of the law. (28 Op. Atty. Gen., 352.) The Secretary of the Na^-y can not be compelled by mandamus proceedings to place the name of the officer in question upon the retired list with the rank of rear admiral. (U. S. ex rel. Moser v. Meyer, 38 App. D. C, A cadet ser%dng in the Coast Guard Academy when the Coast Guard is operating as a part of the Navy in time of war is a person ' 'serving in the naval forces of the United States" within the meaning of the act of February 24, 1919 (40 Stat., 1151, sec. 1406), prodding for payment of $60 on resignation or discharge. (26 Comp. Dec, 419. Compare, 26 Comp. Dec., 236, holding that ' 'a cadet of the United Military Academy while in training there as a student is not a person 'serving in the military or naval forces of the United States ' within the meaning of section 1406 of the act of Feb. 24, 1919, 40 Stat., 1151, and therefore is not entitled to the $60 war service payment pro- \'ided by said act when honorably discharged . " ) A midshipman at the Naval Academy is a "person ser\T.ng in the naval forces of the United States," and one resigning from the naval service under honorable conditions is entitled to the allowance of $60 authorized by the act of February 24, 1919. (File 26543-224:11, May 9, 1919; 26543-224:34, Aug. 25, 1919.) The act of July 1, 1918 (40 Stat., 717), pro- vided "that hereafter, during the existence of war or of a national emergency declared by the President to exist, any commissioned or warrant oflScer of the Navy, Marine Corps, or Coast Guard of the United States on the retired list may, in the discretion of the Secretary of the Navy, be ordered to active duty at sea or on shore; and any retired officer performing such active duty in time of war or national emergency, declared as aforesaid, shall be entitled to promotion on the retired list to the grade or rank, not above that of lieutenant commander in the Navy or major in the Marine Corps or captain in the Coast Guard, and shall thereafter receive the pay and allowances there- of, which his total active service as an officer both prior and subsequent to retirement, in the manner rendered by him, would have enabled him to attain in due course of promotion had such serAdce been rendered continuously on the active list during the period of time last past." Held that the words "total active service as an officer" mean active service as an officer of the kind previously defined in the same pro\dsion, viz, a "commissioned or warrant officer of the Navy, Marine Corps, or Coast Guard," and that ser\dce as a midshipman at the Naval Acad- emy, or service as a midshipman at sea after graduation from the academy, should not be considered in determining the amount of "total active service as an officer." (File 26509-225:11, July 12, 1918; affirmed, file 26509-225:16. Nov. 6, 1918, and 26509-225:17, Jan. 21, 1919.) By act of March 4, 1913, (37 Stat., 891), it was pro\dded that "hereafter the ser\dce of a mid- shipman at the United States Naval Academy, or that of a cadet at the United States Military Academy, who may hereafter be appointed to the United States Naval Academy, or to the United States Military' Academy, shall not be counted in computing for any purpose the length of service of any officer in the Na\y or in the Marine Corps." Sec. 1521. [Appointments on graduation.] When cadet midshipmen shall have passed successfully the graduating examination at the Academy, they shall receive appointments as midshipmen and shall take rank according to their proficiency as shown by the order of their merit at date of graduation. — (15 July, 1870, c. 295, s. 12, v. 16, p. 334.) Amendments to this section were made by act of August 5, 1882 (22 Stat., 285), wliich changed the title of all undergraduates at the Naval Academy to "naval cadets," provided for appointment of naval cadets. on completion of the six years' course, "to fill vacancies in the lower grades of the line and Engineer Coi^ps of the Na\'y and of the Marine Corps," and provided that "so much of section fifteen hundred and 765 Sec. 1521. PL 2. REVISED STATUTES. The Navy. twenty-one of the Revised Statutes as is inconsistent lierewith is hereby repealed;" by act of March ;i. 1883 (22 Stat., 472), which changed the title of '•midshipmen" to "ensiijns (junior grade);" by act of June 2(3, 1884 (23 Stat., (30), which provided "that from and after tlie passage of this act all graduates of the Naval Academy who are assigned to the line of the Navy, on the successful comi>letion of the six years' course, shall be comiuL'isioned ensigns in the Navy," and that "the grade of junior ensign in the Navv is hereViy abolished " ; by act of March 2, 1889 (25 Stat,. 878), which provided for a division of the first class, commencing their fourth year at the Naval Academy, into two divisions, who were to pursue, respectively, separate courses to fit them for the line of the Navy and of the IMarine Corps, and for the Engi- neer 0oq)8 of the Navy, and provided that from the final graduates^ of the line and Marine Corjis di\ision at the end of their six years' course, "appointments shall be made hereafter as it shall be necessary to fill vacancies in the lowest gi'ades of com- missioned officers of the line of the Na\'y and Marine Corps," and that "vacancies in tlie lowest grades of the commissioned officers of the Engineer Corps of the Navy shall be filled in like manner by appoint- ments from the final graduates of the Engi- neer division at the end of their six years' course," and that "not less than two shall be appointed annually to the Engineer Corps of the Navy, nor less than one an- nuallv to the ^Marine Corps;" by act of July 2(3, 1894 (28 Stat., i24), which pro- \'ided that when necessary the Secretary of the Navy sliould select final graduates in the engineer division or in the line division, as the case might require, "and such final graduates sliall be appointed to fill vacan- cies in the grade of ensign in the Na^y or in the grade of assistant engineer in the Na^'^', respectively;" by act of March 3, 1899 (30 Stat., 1004), which abolished the Engineer Corps of the Nav^'; by act of Julv 1, 1902 (32 Stat., 686), which changed the title "naval cadet," to "midshipman;" by act of March 7, 1912 (37 Stat., 73), wliich pro- vided that "midshipmen on graduation shall be commissioned ensigns;" bv act of .July 9, 1913 (38 Stat., 103\ which pro- vided "tliat midshipmen on graduation shall be commissioned ensigns in the Na^^y, or may l)e assigned by the Secretary of the Navy to fill vacancies in the lowest com- missioned grades of the Marine Corps or Staff Corps of the Navy;" and by act of May 22, 1917, section 5 (40 Stat., 86), re- enacted by act of July 1, 1918 (40 Stat., 716), which pro\dded that "the class of midshipmen graduated from the Naval Academy on March twenty-ninth, nine- teen hundred and seventeen, and the classes to be graduated hereafter, may be commissioned effective from date of graduation." The act of August 5, 1882, above cited, provided that tlie appointments therein provided for were to be made "from the graduates of the year, at the conclusion of their six years' course, in the order of merit as determined by the Academic Board of the Naval Acad- emy; the assignment to the various corps to be made by the Secretary of the Navy upon the recommendation of the Academic Board;" the act of March 2, 1889, above cited, provided that the appointments therein provided for were to be made "from the final graduates of the year, in the order of merit as determined by the Academic Board of the Naval Academy, the assign- ment to be made by the Secretary of the NaAy upon the recommendation of tlie Academic Board at the conclusion of the fiscal year then current; " the act of July 26, 1894, above cited, provided that the aj)- pointments therein authorized were to be made from final graduates "who shall l)e reported as proficient and be recommended thereto by the Academic Board," and that such appointees should take rank "among themselves according to merit as deter- mined by the Academic Board." The act of March 3, 1899, section 19 (30 Stat., 1008), relating to the IMarine Corps, pro- vided "that the vacancies existing in said corps after the promotions and appoint- ments herein provided for shall be filled by the President from time to time, when- ever the actual needs of the naval service require it, first, from the graduates of the Naval Academy in the manner now pro- vided by law," etc.; the act of March 3, 1903 (32 Stat., 1198), authorized an in- crease in tlie number of officers in the Ma- rine Corps, and provided that "vacancies in the grade of second lieutenant shall be filled, first, as far as practicable, from grad- uates of the Naval Academy each year on completing the prescribed course at the Naval Academy, exclusive of the proba- tionary tour of sea service before final graduation," etc. The act of August 29, 1916 (39 Stat., 611) pro- ^-ided "that no midshipman at the United States Naval Academy or cadet at the United States Military Academy who fails to graduate therefrom shall be eligible for appointment as a commissioned officer in the Marine Corps until after the gradu- ation of the class of which he was a mem- ber." With reference to rank and precedence of grad- uates of the Naval Academy, see section 1483, Revised Statutes, and note thereto; as to pay of midshipmen commissioned within six months after graduation, see act of March 3, 1893 (27 Stat., 716), which allows the pay of the grade in which com- missioned from the date of rank stated in the commission to the date of qualification and acceptance of commission. Prior laws superseded. — The act of August 5, 1882 (22 Stat., 285), providing for appoint- ments from the graduates of the Naval Academy to fill A'acancies in the lower grades of the line and engineer corps of the NaA'y and of the Marine Corps, was superseded by the act of March 2, 1889 (25 Stat., 878). Next came the act of July 26, 1894 (28 Stat., 124), which was a pro- vision intended to meet exceptional conditions 766 The Navy. Ft. 2. REVISED STATUTES. Sec. 1621. which can not now arise in view of the act of March 3, 1899 (30 Stat., 1004), transferring the engineer corps to the line; it may therefore be regarded as repealed by the act last cited. (File 5252-36, May 5, 1910.) Vacancies must remain unfilled where insufficient graduates. — I nder the act of March 2, 1889 (ch. 396), the vacancies in the lowest grades of commissioned officers in the line and Marine Corps must be filled from the final graduates of the line and Marine Corps di\dsions at Annapolis; so also as to vacancies in the engineer corps. Vacancies in the line and Marine Corps can not be filled from the engineer corps di\'ision or \ice versa. If in any year there are more vacancies in the line and Marine Corps than there are final graduates of the six years' course in the line and marine di^'ision, the vacancies must remain unfilled until the following year; and the same rule apjjlies to vacancies in the engineer corps. (20 Op. Atty. Gen., 615; by act of July 26, 1894, above noted, pro%'ision was made for filling vacancies in the line fi'om the engineer diAision, and vacancies in the engineer corps from the line division. See also later laws above noted.) Law does not require that graduates be commissioned. — The act of July 9, 1913 (38 Stat., 103), pro\'iding that "midshipmen on graduation shall be commissioned ensigns in the Navy, or may be assigned by the Secretary of the Navy to fill vacancies in the lowest com- missioned grades of the Marine Corps or staff corps of the Navy," could not be held to require the appointment of any midshipman upon gi'aduation as an ensign in the Navy. No act of Congress can compel the President to appoint a midshijjman to the office of ensign in the Navy unless he chooses to make such an appointment. (File 5252-120, May 13, 1919; C. M. 0. 186— 1919.) If a midshipman were entitled to be commis- sioned ensign and the President should refuse to issue his commission, no action would lie for the salary of the ofiice which he does not pos- sess. His becoming an ensign depended not upon the operation of law but upon his being nominated by the President and confirmed by the Senate for that office; neither of which things might ever be done. For reasons deemed sufficient, the President might not nominate or the Senate might not confirm him for the position ; or after nomination and confirmation the President might, on grounds considered ade- quate, decline to commission him. In either case he would not be an ensign. The issue of the commission is that which confers the office and the right to its pay. However clear and strong his le^al right might have been to be commissioned as such when he passed the academic examination, the fact remains that he was not so commissioned, and the law gave him no right to the salary until he got the commis- sion. (Benjamin v. U. S., 10 Ct. CIs., 474.) The term of office of a naval cadet expires with the completion of his six years' course. If not appointed to another office he ceases to be an officer of the Navy and goes out of office by the expiration of the tenure as limited by law. Where a naval cadet was erroneously dis- charged upon expiration of his six years, due to an error of law, he can not be regarded as still in the sendee and entitled to recover pay, either as a naval cadet or as the incumbent of a commissioned office to which he might and should have been appointed; a person can not recover the salary of an office which he does not hold. The case of a naval cadet is to be dis- tinguished from that of a cadet engineer, as the latter could under the law, after graduation, continue^ in the service in the status of a cadet engineer and, where erroneously discharged, could recover the pay of a cadet engineer as though such discharge had not been issued. (Grambs v. U. S., 23 Ct. CIs., 420.) Graduates can not be commissioned un- less vacancies exist. — Under the act of August 5, 1882 (22 Stat., 285), a naval cadet who completed his six years' course subse- quent to that year was legally discharged, there being no vancancy to which he could be appointed, notwithstanding the obligation as- sumed by him upon entering the Academy to "serve in the Navy of the United States for eight years, unless sooner discharged by com- petent authority." The discharge in this case was in strict pursuance of law, by an executive officer of the Government, authorized by stat- ute to perform that function. Obligations are not always mutual in the liability of the par- ties to perform. They are often unilateral, giving a right to one to declare the obligation at an end, while the other party is bound to a full performance. The number of men in the Army and Navy is dependent upon the will of Congress. A naval cadet has no vested right to the office, and Congress may prescribe new terms and conditions upon which he may re- main in the service after graduation. (Har- mon V. U. S., 23_Ct. CIs., 132.) The provision in the naval appropriation act of August 5, 1882, section 1 (22 Stat., 284, 285), which directs in certain cases the honor- able discharge of naval cadets from the Navy with one year's sea pay, is not in conflict with the contract clause of the Constitution of the United States. An officer in the Army or Navy does not hold his office by contract but at the will of the sovereign power. Even if it were true as to other officers of the Navy that their term of office is for life, this would not be true as to a naval cadet appointed under a statute fixing the academic course at six years and who when he entered the service executed a bond to serve for eight years unless discharged by competent authority, thus recognizing his liability to be discharged. (Crenshaw v. U. S., 134 U. S., 99.) The act of August 5, 1882 (22 Stat., 285), providing for the discharge of surplus graduates of the Naval Academy, is constitutional. (Harmon v. U. S., 23 Ct. CIs., 406.) Midshipmen graduated from the Naval Academy and assigned to the Marine Corps can not be appointed as second lieutenants in the Marine Corps if the grade of second lieu- tenant is filled to the number fixed by law, notwithstanding that the total number of officers allowed by law in the Marine Corps would not be exceeded by their appointment owing to certain vacancies existing in upper grades. There being five vacancies in the Marine Corps on the date of graduation which would result in the promotion of five second 767 Sec. 1522. PL 2. REVISED STATUTES. The Navy. lieutenants from the date said vacancies occurred, and six midshipmen having been assigneci to th(> Marine ("ori)s, held that five of said midshipmen may be ap{)ointed to the grade of second lieutenant upon the occurrence of the five vacancies in said grade, and if com- niis.> act of March 1, 1917 (39 Stat., 1182), authorizes the graduation of mid- shipmen, during a limited ])eriod, who have completed a three-year course at the Naval Academv; the number of officers in the grades of lieutenant (junior grade) and ensign is limited by act ai)proved August 29, 1916 (39 Stat., 576, 577); asufhcient number of vacancies will not exist in the line of the Navy to permit of commissioning all graduates of the Naval Academy prior to July 1, 1917: Held, that in the meantime such graduates may be ai)pointed as acting ensigns; or may be commissioned as ensigns in the Naval Reserve Force; or may be ordered to duty as "midshipmen after gradua- tion." (File 5252-83, Mar. 20, 1917.) See acts of May 22, 1917, section 5, and July 1, 1918, noted above. Appointment made subject to examina- tion. — A midshipman who, while absent in a distant and foreign station, was nominated and confirmed to be ensign "subject to examination" but who was never examined, never became an ensign and having in the meantime been brought to trial by court-martial was properly tried as a midshipman. (16 Op. Atty. Gen., 550.) Sec. 1522. [Cadet engineers. Repealed.] This section provided as follows: "Sec. 1522. The Secretary of the Navy is authorized to make provision, by regulations issued l)y him, for educating at the Naval Academy, as naval constructors or steam engineers, such midshipmen and others as may show a peculiar aptitude therefor. He may, for this purpose, form a separate class at the Academy, to be styled cadet engineers, or other\\a8e afford to "such persons all proper facilities for such a scientific mechanical edu- cation as will fit them for said professions." — (4 July, 1864, c 252, s. 1, v. 13, p. 393.) It was repealed by the act of August 5, 1882 (22 Stat., 285), which provided " that hereafter there shall be no appointments of cadet-mid- shipmen or cadet-engineers at the Naval Academy, but in lieu thereof naval cadets shall be appointed from each congressional district and at large, as now provided by law for cadet- midshipmen, and all the undergraduates at the Naval Academy shall hereafter be designated and called 'naA-al cadets;' and from those who successfully complete the six years' course appointments shall hereafter l)e made as it is necessary to fill vacancies in the lower grades of the line and Engineer Corps of the Navy and of the Marine Corps: And -provided further, That no greater number of appointments into these grades shall be made each year than shall ecjual the number of vacancies which has occurred in the same grades during the pre- ceding year; such appointments to be made from the graduates of the year, at the conclu- sion of their six years' course, in the order of merit, as determined by the academic board of the Naval Academy; the assignment to the various corps to be made by the Secretary of the Navy upon the recommendation of the academic board. Butnothing herein contained shall reduce the number of appointments from such graduates below ten in each year, nor deprive of such appointment any graduate who may complete the six years' course during the year eighteen hundred and eighty-two. And if there be a surplus of graduates, those who do not receive such appointment shall be given a certificate of graduation, an honor- able discharge, and one year's sea-pay, as now proAided by law for cadet-midshipmen; and so much of section fifteen hundred and twenty- one of the Re\dsed Statutes as is inconsistent herewith is hereby repealed. * * * That the Secretary of the Navy may prescribe a special course of study and training at home or abroad for any naval cadet." Later laws relating to this subject are as follows: Act of March 2, 1889 (25 Stat., 878):. "That the Academic Board of the Naval Academy shall on or before the thirtieth day of September in each year separate the first class of naval cadets then commencing their fourth year into two diAdsions, as they may have shown special aptitude for the duties of the respective corps, in the proportion which the aggregate number of vacancies occurring in the preceding fiscal year ending on the thirtieth day of June in the low- est grades of commissioned officers of the line of the Navy and Marine Corps of the Navy shall bear to the number of vacancies to be supplied from the Academy occurring during the same period in the lowest grade of commissioned officers of the engineer corps of the Navy; and the cadets so assigned to the line and Marine Corps di\'ision of the first class shall thereafter pursue a course of study arranged to fit them tor 8er\T.ce in the line of the Na^y, and the cadets so assigned to the Engineer Corps di\ision of the first class shall thereafter pursue a sepa- rate course course of study arranged to fit them for ser\ice in the Engineer Corps of the Navy, and the cadets shall thereafter, and until final graduation, at the end of their six years' course, take rank by merit with those in the same divis- ion, according to the merit marks; and from the final graduates of the line and Marine Corps di- \ision, at the end of their six years' course, ap- pointments shall be made hereafter as it shall be necessary to fill vacancies in the lowest grades of commissioned officers of the line of the NaA-y and Marine Corps; and the vacancies in 768 The Navy. PL 2. REVISED STATUTES Sec. 1524. the lowest grades of the commissioned officers of the Engineer Corps of the Navy shall be filled in like manner by appointments from the final graduates of the Engineer division at the end of their six years' course: Provided, That no greater number of appointments into the said lowest grades of commissioned officers shall be made each year than shall equal the number of vacancies which shall have occurred in the same grades during the fiscal year then current; such appointments to be made from the final graduates of the year, in the order of merit as determined by the Academic Board of the Naval Academy, the assignment to be made by the Secretary of the Navy upon the recommenda- tion of the Academic Board at the conclusion of the fiscal year then current; but notliing contained herein or in the naval appropriation act of August fifth, eighteen hundred and eighty- two, shall reduce the number of appointments of final graduates at the end of their six years course below twelve in each year to the line of the Nax-y, and not less than two shall be appointed annually to the Engineer Corps of the Navy, nor less than one annually to the Marine Corps; and if the number of vacancies in the lowest grades aforesaid, occurring in any year shall be greater than the number of final graduates of that year, the surplus vacancies shall be filled from the final graduates of following years, as they shall become avail- able * * *." Act of July 26, 1894 (28 Stat., 124): Provided for appointments to the line of the Navy from the engineer di\'ision, and to the Engineer Corps of the Na\'y from the line di\ision, when necessary. Act of March 3, 1899 (30 Stat., 1004) : Abolish- ed the Engineer Corps of the Navy and pro- .^ided for transfer of engineer officers to the line. Act of August 29, 1916 (39 Stat., 580): Pro- vided for appointment to the line of the Navy, as "acting ensigns for the performance of en- gineering duties only," of persons who "have received a degree of mechanical or electrical engineer from a college or university of high standing," or who are "graduates of technical schools approved by the Secretary of the Navy * * *." Act of March 3, 1915 (38 Stat., 945): Pro\'ided that appointments to the grade of assistant naval constructor may be made by transfer from officers of the line of the Navy who have had not less than three years' ser\dce in the grade of ensign and have taken, or are taking, satisfactorily, a post-graduate course in naval architecture uncler orders from the Secretary of the Navy. By act of August 29, 1916 (39 Stat., 577), it was proxaded that "vacancies in the Construction Corps shall be filled in the manner now prescribed by law," and that "hereafter ensigns of not less than one year's ser\'ice as such shall be eligible for transfer to the Construction Corps." It had pre\dously been pro\aded by section 1403, Reidsed Stat- utes, that "cadet engineers who are graduated with credit in the scientific and mechanical class of the Naval Academy may, upon the re- commendation of the academic board, be im- mediately appointed as assistant naval con- structors;" and by act of July 9, 1913 (38 Stat., 103), that "midshipmen on gi-aduation * * * may be assigned by the Secretary of the Navy to fill vacancies in the lowest commissioned grades of the * * * staff corps of the Navy." Sec. 1523. [Number and appointment of. Repealed.] This section provided as follows: "Sec. 1523. Cadet engineers shall be ap- pointed by the Secretary of the Navy. They shall not at any time exceed fifty in niunber, and no persons, other than midshipmen, shall be eligible for appointment unless they shall fii'st produce satisfactory evidence of mechani- cal skill and proficiency, and shall have passed an examination as to their mental and phvsical qualifications."— (4 July, 1864, c. 252, ss. 3, 4, v. 13, p. 393. 2 Mar., 1867, c. 174, s. 2, v. 14, p. 516. 22 June, 1874, c. 392, s. 3, v. 18, p. 192.) It was amended by act of June 22, 1874, section 3 (18 Stat., 192), which provided that "so much of the act entitled 'An act to author- ize the Secretary of the Navy to pro^dde for the education of naval constructors and steam- engineers, and for other purposes,' approved July 4, 1864, as provides that cadet-engineers, not to exceed fifty in number, shall be ap- pointed by the Secretary of the Navy, is hereby repealed; and cadet-engineers shall hereafter be appointed annually by the Secretary of the Navy, and the number appointed each year shall not exceed twenty-five; and that aU acta or parts of acts inconsistent with the provi- sions of this act be, and the same are hereby repealed." (See United States v. Redgrave, 116 U. S., 474, 478.) It was repealed by act of August 5, 1882 (22 Stat., 285), quoted under section 1522, Revised Statutes, which expressly prohibited any further appointments of cadet-engineers. See also later laws noted under section 1522, Revised Statutes. Sec. 1524. [Academic course of. Repealed.] This section provided as follows: "Sec. 1524. The course for cadet engineers shall be four years, including two years of 8er^dce on naval steamers. ' ' — (4 July, 1864, c. 252, s. 5, V. 13, p. 393. 3 Mar., 1873, c. 230, s. 1, V. 17, p. 555. 24 Feb., 1874, c. 35, v. 18, p. 17.) It was amended to read as above by act of February 24, 1874, section 2 (IS Stat., 17), which pro^ided that ' ' from and after the thirtieth day of June, eighteen hundred and seventy-four, the course of instruction at the Na^al Academy for cadet-engineers shall be four years, instead of two as now pro\ided by law; and this provision shall first apply to the class of cadet-engineers entering the academv in the year eighteen hun- dred and seventy-four, and to all subsequent classes; and that all acts or parts of acts incon- 769 Sec. 1527. PL 2. REVISED STATUTES. The Navy. sistent herewith be, and are hereby, repealed."- This amendment had the effect of requiring four years of instruction at the Naval Academy in addition to the two years' service on naval Bteamera. (See United States v. Redgrave, 116 U. S., 474, 478.) It was repealed by act of August 5, 1882 (22 Stat., 285), quoted under section 1522, Revised Statutes, which expressly prohibited any further ap]>ointments of cadet-engineers. See also later laws noted under sections 1522 and 1520, Revised Statutes. Sec. 1525. [Examinations of. Repealed.] This section provided as follows: "Sec. 1525. (,'adet engineers shall be ex- amined from time to time, according to reg- ulations prescribed by the Secretary of the Navy, and if found deficient at any examina- tion, or if dismissed for misconduct, they shall not be continued in the Academy or in the 8er\dce except upon the recommendation of the academic board."— (4 July, 1864, c. 252, s. 4, V. 13, p. 393.) It was repealed by act of August 5, 1882 (22 Stat., 285), quoted under section 1522, Revised Statutes, which expressly prohibited any further appointments of cadet-engineers. See also later laws noted under section 1522, Revised Statutes. Sec. 1526. [Studies not to be pursued on Sunday.] The Secretarv of the Navy sliall arrange the course of studies and the order of recitations at the Naval Academy so that the students in said institution sliall not be required to pursue their studies on Sunday. — (15 July, 1870, c. 294, s. 21, v. 16, p. 319.) Sec. 1527. [Store-keeper at the Academy.] The store-lceeper at the Naval Academy shall be detailed from the Paymaster's Corps, and shall have au- thority, with the approval of the Secretary of the Navy, to procure clothing and other necessaries for the midshipmen and cadet engineers in the same manner as supplies are furnished to the Navy, to be issued under such regula- tions as may be prescribed by tlie Secretary of the Navy. — (2 IVfar., 1867, c. 174, s. 4, V. 14, p. 516.) Amendments to this section were made by the act of July 11, 1919 (41 Stat., 147), which p^o^'ided that "hereafter the Pay Corps shall be called the Supply Corps;" by act of August 5, 1882 (22 Stat., 285), quoted under section 1522, ReAT.sed Statutes, which expressly prohibited any further appointments of cadet-engineers; and by act of May 13, 1908 (35 Stat., 153), which proA-ided that ' ' the Secretary of the Treas- ury is hereby authorized and directed to close and balance as expended the sum of twenty-four thousand five hundred dollars now standing on the books of the Treasury \inder the appropriation 'Pay of the Navy,' which was ad^'anced by direction of the Secretary of the Navy in eighteen hundred and sixty-seven and eighteen hundred and sixty-eight, and has heretofore been used as a midshipmen's store fund at the Naval Academy: Provided. That hereafter the storekeeper at the Naval Academy, auth- orized by section fifteen hundred and twenty-seven of the Re\-i8ed Statutes, shall render quarterly returns of property to the Chief of the Bureau of Supplies and Accounts, under such regulations as the Secretary of the Navy may prescribe. A full report shall be made annually of re- ceipts and expenditures by the Chief of the Bureau of Supplies and Accounts to the Secretarj^ of the Navy: And provided fur- ther, That an inspection of the store- keeper's accounts shall be made quarterly by the general inspector of the Pay Corps [now Supply Corps], with such recommen- dation Jis he may deem necessarj-, to the Chief of the Bureau of Supplies and Ac- counts." Midshipmen's store fvind. — Prior to 1867 a ci^ilian storekeeper pro\'ided for the needs of the midshipmen under an arrangement made between himself and the officials of the Acad- emy. This arrangement was not satisfactory', and. in 1867 and 1868, by direction of the Sec- retary of the Navy, the sum of §24,500 was ad- vanced for the purpose of taking over the said store and of carr^nng it on. This was done from the appropriation, "Pay of the Navy." Held, that the sum of $24,500 aforesaid is public money and that said sum and the accumulated profits, if any, should be covered into the Treasury; that the establishment of said fund and the present manner of conducting the store at the Naval Academy are without authority of law, it being pro^ided by the act of June 19, 1878 (20 Stat., 167), section 2, that " 'Pay of the Navy ' shall hereafter be used only for its legiti- mate purpose, as pro^'ided by law," and by act of July 26, 1886, section 2 (24 Stat., 157), that "all l^alances of money appropriated for pay of the Navy or pay of the ]\Iarine Corps for any year existing after the accounts for said year shall have been settled shall be carried into the Treasury." Held, further, that by section 1527 of the ReAised Statutes it was clearly the in- tention of Congress that the supplies for the Naval Academj^ store should be procured in the same manner as other naval stores. (14 Comp. Dec, 680. But see act of May 13, 1908, quoted above.) Naval Academy dairy. — Pro\'isions for purchase of land and establishment of dairy thereon were contained in act of !March 4, 1913 no The Navy. Pt.2. REVISED STATUTES. Sec. 1528. (37 Stat., 904), which pro\'ided that appropria- tion therein made for the purpose should be treated as an adA'ance to tlie midshipmen's store fund, to be ultimately repaid to the United States, and that expenditures therefrom should be reported by the Chief of the Bureau of Sup- plies and Accounts to the Secretary of the Navy. Midshipmen's commissary fund. — Such additional payments from this fund as the Superintendent may deem necessary may be made to servants authorized in the commissary department. (Act Mar. 4, 1913, 37 Stat., 907. See also note to sec. 2.36, R. S., under "II. Jurisdiction of Accounting Officers," subhead- ing "Public Money.") Sec. 1.528. [Professors of ethics, Spanish, and drawing-.] Three professors of mathematics shall be assigned to duty at the Naval Academy, one as professor of ethics and English studies, one as professor of the Spanish language, and one as professor of drawing. — (21 May, 1864, c. 93, s. 3, v. 13, p. 85.) By act of August 29, 1916 (39 Stat., 577), it was provided that "hereafter no further appointments shall be made to the corps of professors of mathematics, and that corps shall cease to exist upon the death, resig- nation, or dismissal of the officers now carried in that corps on the active and retired lists of the Navy." (See sees. 1399-1401, and notes thereto, with refer- ence to the number of professors of mathe- matics, their appointment, duties, etc.) By act of August 29, 1916 (39 Stat., 607), it was provided that "the Secretary of the Navy is authorized to employ at the Naval Academy such number of professors and instructors, including one professor as librarian, as, in his opinion, may be necessary for the proper instruction of the midshipmen; and that professors and in- . structors so employed shall receive such compensation for their services as may be prescribed by the Secretary of the Navy : Provided further, That the total amount so paid shall not exceed $175,000 annually: And provided further, That the Secretary of the Navy shall report to Congi-ess each year the niunber of professors and instruc- tors so employed and the amount of com- pensation prescribed for each." (It had previously been provided by act Mar. 2, 1895, 28 Stat., 837, that "any assistant professor at the Naval Academy who served as such for five years shall have the title and pay of a professor," and by act Mar. 3, 1897, 29 Stat., 661, that "the proper pay officer of the Navy be, and is hereby, authorized to pay the professors at the Naval Academy, whose compensation was affected by the Act making appropriations for the naval service for the fiscal year ending June thirtieth, eighteen hundred and ninety-six, approved March second, eighteen hundred and ninety-five, at the rate of compensation fixed by that Act from July first, eighteen hundred and ninety-six.") By act of ]\Iay 18, 1920, section 7 (41 Stat., 603), the Secretary of the Navy was authorized in his discretion to readjust the prevailing rates of pay of civilian professors and in- structors at the Naval Academy, said read- justment to be effective from January 1, 1920, and not to involve an additional expenditure in excess of $55,000 for the remainder of the current fiscal year. Commissioned as professors of mathe- matics. — Although the title conferred by law is a misnomer, held that the heads of the departments of ethics and English studies, of Spanish and other modern languages, and of drawing, should be commissioned as professors of mathematics under section 1528, Revised Statutes, after passing the examinations re- quired by the act of January 20, 1881 (21 Stat., 317). The pm-pose that persons known to the law and the Navy Register as "professors of mathematics" should be engaged in teaching other branches of learning is too obvious for construction. That the name did not indicate the sole duties of the office is further apparent from the express declaration of the act of August 3, 1846, section 12 (now sees. 1399-1401, R. S.), "that the number of professors of mathe- matics in the Navy shall not exceed twelve; that they shall be appointed and commissioned by the President of the United States, by and with the advice and consent of the Senate, and shall perform such duties as may be assigned them by order of the Secretary of the Navy at the Naval School, the Observatory, and on board ships of war in instructing the midship- men of the Navy, or otherwise.^'' Section 1528 shows that, certainly as to three of these pro- fessors, the duties to be assigned were not to be mathematical in their nature. (17 Op. Atty. Gen., 103.) in CHAPTER SIX. VESSELS AND NAVY YARDS. Sec. 1529. Classification and command of vessels. 1530. Rating of vessels. 1531. Rule for naming vessels. 1532. Two vessels not to bear the same name. 1533. Names of purchased vessels. 1534. Vessels kept in semce in time of peace. 1535. Vessels, how officered and manned. 1536. Vessels to assist distressed navigators. 1537. Patented articles connected with marine engines. 1538. Repairs on hull and spars. Sec. 1529. [Classification and command of vessels. Superseded.] Sec. 1539. Repairs on sails and rigging. 1540. Sale of vessels unfit to be repaired. 1541. Sale of unserviceable vessels and mate- rials. 1542. Commandants of navy yards. 1543. Master workmen. 1544. Laborers, how selected. 1545. Salaries; per diem compensation. 1546. Requiring contributions for political purposes. This section provided as follows: "Sec. 1529. The vessels of the Navy of the United States shall be di^dded into four classes, and shall be commanded as nearly as may be as follows: ' ' First rates, by commodores; second rates, by captains; third rates, by commanders; fourth rates, by lieutenant-commanders." — (16 July, 1862, c. 183, 8. 3, V. 12, p. 583.) It was superseded by act of March 3, 1901 (31 Stat., 1133), which provided as follows: "That the President of the United States be, and he is hereby, authorized to establish, and from time to time to modify, as the needs of the service may require, a classification of vessels of the Navy, and to formulate appropriate rules governing assignments to command of vessels and squadrons." A classification of vessels of the Navy was estaljlished by General Order No. 541 of July 17, 1920. "Vessels" defined. — See section 3, Revised Statutes. Lost vessels. — How date of loss to be deter- mined : See section 286, Revised Statutes. Authority of officers over crew after loss of vessel: See section 1624, Revised Statutes, article 21. Accounts of seamen on lost vessels, com- pensation for personal effects lost, etc. See sections 287-290, Re\i8ed Statutes. Collisions. — Claims for damages occasioned by collisions for which vessels of the Navy are responsible, to be adjusted by the Secretary of the Na\y, where amount does not exceed $500. (Act June 24, 1910, 36 Stat., 607.) Ocean mail vessels. — To be constructed with particular reference to their prompt con- version into auxiliary cruisers. (Act Mar. 3, 1891, sec. 4, 26 Stat., 881.) Suits by or against commanding officers of naval vessels. — See note to section 189, Revised Statutes, and note to Constitution, Article I, section 8, clause 13. Officers of vessels. — To be citizens of the United States. (Sec. 1428, _R. S.) Retired officers may be assigned to command vessels and squadrons in time of war. (Sees. 1463-1465, R. S.) Officers and men not to be shipped for serv- ice on United States auxiliary vessels unless members of the Naval Reserve Force. (Act Aug. 29, 1916, 39 Stat., 589.) Employment of naval vessels. — Secretary of the Na^ y to execute the orders of the Presi- dent relating to employment of vessels of war. (Sec. 417, R. S.) Vessels of the United States and their com- manders may be directed by the President to examine vessels registered under the laws of the United States which are believed to be engaged in the coolie trade, and in proper cases to cause any vessel so examined to be delivered with her officers and crew to a United States marshal. (Sec. 2163, R. S.) Officers of the Navy may be detailed to make arrests and seize vessels and sponges in enforcement of law regulating sponge trade in Gulf of Mexico or Straits of Florida. (Act Aug. 15, 1914, sec. 5, 38 Stat., 692.) Vessels of the Navy may be used to protect merchant vessels against piratical vessels. (Sec. 4294, R. S.) May be used to patrol waters frequented by seal herds and sea otter, and search and seize vessels violating law relating thereto. (Act Aug. 24, 1912, sec. 9, 37 Stat., 501.) Not to re^'eive goods or merchandise for freight, except gold, silver, or jewels, without authority from President or Secretary of the Navy. (Sec. 1624, R.S., art. 13.) Secretary of the Navy may, in his discretion, at the request of the National Board of Health, place gratuitously at the disposal of the Com- missioners of Quarantine or the proper author- ties at any of the ports of the United States, to be used by them temporarily for quarantine purposes, such vessels belonging to the United 772 The Navy. Pt. 2. REVISED STATUTES. Sec. 1529. States as are not required for other uses of the National Government, subject to such restric- tions and regulations as he may deem necessary to impose for the preservation thereof. (Act June 14, 1879, 21 Stat., 50.) Vessels may be loaned, upon written appli- cation of the governor of the State, to nautical schools at Boston, Philadelphia, New York, Seattle, San Francisco, Baltimore, Detroit, Saginaw, Mich., Norfolk, and Corpus Christi. (Act Mar. 4, 1911, 36 Stat., 1353.) The President was authorized to employ public vessels in surveying the coast of the United States, by section 4686, Revised Statutes. (See note to sec. 264 R. S.) The Secretary of the Navy is authorized to place the vessels of the United States Fish Commission on the same footing with the Na\'y Department as those of the United States Coast and Geodetic Sur\-ev, by act of May 31, 1880. (21 Stat., 151, see note to sec. 264, R. S.) One fully equipped man-of-war's cutter may be loaned, upon application of the governor, to one well-established military school in any State having eeacoast line or bordering on one ormore of the Great Lakes. (ActMar. 3, 1901, 31 Stat., 1440, amended bv acts June 29, 1906, 34 Stat., 620, and June 24,1910, 36 Stat., 613.) For other laws, see section 1536, Revised Statutes, and note thereto. Expenses incurred by vessels rendering services for other departments. — See note to section 1437, Re\dsed Statutes. Jurisdiction over vessels of the Navy. — Freedom from State interference. (See notes to Constitution, Art. I, sec. 8, clauses 13 and 14; and note to sec. 355, R. S.) Command of hospital ships by medical officers. — See note to section 1488, Rexdsed Statutes. Power of President as Commander in Chief.— The act of March 3, 1901 (quoted above), is plainly intended to amend the pre- \'iou3 statutes on the subject, and is designed to allow the President to reclassify the vessels of the Na\'y that had theretofore been fixed by section 1529, Revised Statutes, and to authorize him to assign the command of ves- sels, omitting all restrictions. He is by that act given the full power contemplated in that pro\dsion of the Constitution which makes him Commander in Chief of the Army and Na\'y. The act of March 3, 1901, is a complete sub- stitute for prior laws or customs. The language of that act is clear and unambiguous, and was enacted with a full knowledge of the conditions brought about by prior laws and of the neces- sity of a new and elastic system by which the President could from time to time make such regulations as the necessities of the changing conditions in the serxice should require. (27 Op. Atty. Gen., 571.) Under pre\-iou3 laws it was held that, when the rate of a ship of war has been fixed by statute, it can not be changed by an order of the Navy Department in so far as to affect the compensation of an officer of the Navy; that it is the established course of the legislation of the United States to designate the rate of ships of war when authorizing their construction; that of all this, Congress has jiuisdiction, which it er.ercises in its constitutional discretion; that it may affix to certain ships of the Navy, by express names, a specified rate, and to others a ditferent rate, which rates l)ind the Secretary of the Navy in so far as they are employed by the statutes for any statutory object, such as to measure of pay, although they may not for other objects, which the statute leaves to the discretion of the executive; that in general, and as the apparently sett led legislative policy of the Government, Congress reserves itself the power of designating the character as well as the number of vessels of the Navy; that if the legislative nomenclature be an anomaly Congress may change same, if it will, but that to do so exceeds the power of the executive. (8 Op. Atty. Gen., 503, Mar. 3, 1857; compare 10 Comp. Dec, 516; see also 10 Comp. Dec, 122, and 12 Comp. Dec, 373.) For other cases, as to the power of Congress and of the President as Commander in Chief, see note to Constitution, Article II, section 2, clause 1. Ownership of vessel not accepted by the Government but in possession of the builders. — Where a vessel is on her trial trip prior to acceptance, and still within the pos- session and control of the builders, the United States, however, haA-ing, by the payment of installments, acquired 49 out of 50 parts of the vessel, she must be regarded as practically the property of the Government. (Williams v. U. S., 47 Ct. Cls., 186.) The Attorney General defers answering the question as to the right of the Secretary of the Navy, under the direction of the President, to employ the military forces of the Government to obtain possession of the cruiser Galveston, in course of construction under contract with the Wm. R. Trigg Co., of Richmond, Va., which company has gone into the hands :f a receiver appointed by the chancery court of Virginia, for the reason that a method of proce- dure in such cases is provided for by section 3753, Re\'ised Statutes, and occasion for the exercise of this power is not likely to arise if the stipulation authorized by that section ia filed. (24 Op. Atty. Gen., 679.) It is not to be doubted for a moment that the United States is entitled to the undisturbed possession and control of its property and of property in which it is interested to the extent of that interest, and that this possesion and control are exempt from the process of every court. Yet, in order to avoid unseemly clashing and hostile demonstration upon the part of creditors or claimants, Congress has by the law embodied in sections 3753 and 3754, Revised Statutes, provided an orderly and peaceful solution of controversies that may arise between parties claiming adversely to the United States, under the terms of which the utmost rights of all claimants are preserved without the functions of the Government being in the slightest disturbed. However, thislaw is not mandatory in its pro\'isions, and in a palpable case of improper interference with the Government's rights the strong Executive arm may be relied upon for the protection of its sovereignty. (24 Op. Atty. Gen., 679, 683.) 773 Sec. 1534. n. >. RE VISED STAT UTES. The Navy. Quite apart from the statute, and because of the nature of the ca^e, it is impossible, on primary grounds, to yield assent at all to the idea tliat any instrumentality of the Govern- ment — in this case an instrumentality of prime importance — may l)e taken iulo custody and held under any adverse authority whatever. This \ie\\' applies whether the adverse custody should assume to attach upon the instrumen- tality as a completed thing or upon one in process of creation. (24 Op. Atty. Gen., 679, 682.) P'or other cases as to the freedom of Federal instrumentalities from State interference, see note to Constitution, Article I, section 8, clause 13. Sec. 1530. [Rating of vessels. Superseded.] Tliis section provided as follows: "Sec. 1530. Steamships of forty guns or more shall be classed as first rates, those of twenty guns and under forty as second rates, and all those of less than twenty guns as third rates. " — (12 June, 1858, c. 153, s. 5, v. 11, p. 319.) It was superseded l)y act of March 3, 1901 (31 Stat., 1133), quoted above under section 1529, Revised Statutes. Sec. 1531. [Rule for naming vessels. Superseded.] This section provided as follows: "Sec. 1531. The vessels of the Na^-y shall be named by the Secretarj^ of the Navy, under the direction of the President, according to the following rule: "Sailing-vessels of the first class shall be named after the States of the Union, those of the second class after the rivers, those of the third class after the principal cities and towns, and those of the fourth class as the President may direct. ''Steamships of the first class shall be named after the States of the Union, those of the second class after the rivers and principal cities and towns, and those of the third class as the President may direct." — (3 Mar., 1819, c. 7, 8. 1, v. 3, p. 538. 12 June, 1858, c. 153, s. 5, v. 11, p. 319.) It was superseded by the act of March 3, 1901 (31 Stat., 1133), quoted above, under section 1529, Revised Statutes, which expressly authorized the President to establish a classi- fication of vessels of the Navy, and from time to time to modify such classification, thereby superseding the provisions of this section which established rules for naming vessels according to the classification prescribed by sections 1529 and 1530, Revised Statutes. (See file 26255-614, Aug. 9, 1920, and 26255-614:10, Jan. 21, 1921.) Other provisions for naming vessels were embodied in the act of May 4, 1898 (30 Stat., 390), as follows: "Hereafter all first- class battle ships and monitors owned by the United States shall be named for the States, and shall not be named for any city, place, or person until the names of the States, shall have been exhausted: Provided, That nothing herein contained shall be so construed as to interfere with the names of States already as- signed to any such battle ship or monitor. " The act of May 4, 1898, was modified 1)y act of May 13, 1908 (35 Stat., 159), which provided that so much of said act of May 4, 1898, "as pro^-ides that monitors owned by the United States shall be named for the States, and shall not be named for any city, place, or person until the names of the States shall have been exhausted, is hereby repealed, and monitors now owned l)y the United States or hereafter built may be named as the President may direct. " (See file 26255-614, Aue. 9, 1920, and 26255-614:10, Jan. 21, 1921.) Gifts to vessels from States, munici- palities, or others, presented in accordance with custom, may be accepted by the Secre- tary of the Navy. (Act May 20, 1908, 35 Stat., 171.) Sec. 1532. [Two vessels not to bear the same name.] Care shall be taken that not more than one vessel in the Xav}^ shall bear the same name. — (3 Mar., 1819, c. 7, s. 1, V. 3, p. 538. 12 June, 1858, c. 153, s. 5, v. 11, p. 319.) Sec. 1633. [Names of purchased vessels.] The Secretary of the Navy- may change the names of any vessels purchased for the Navy by authority of law.— (5 Aug., 1861, 0. 51, s. 2, v. 12, p. 316.) When in the opinion of the President the prices asked for the charter of vessels for the trans- portation of fuel for the Navy are excessive, he is authorized to purchase vessels suita- ble for the purpose, and if money is not otherwise available to pay for them from the appropriation "Fuel and transporta- tion." (Act July 1, 1918, 40 Stat., 730.) Sec. 1534. [Vessels kept in service in time of peace.] The President is authorized to keep in actual service in time of peace, such of the public armed vessels as, in his opinion, may be required by the nature of the service, and to cause the residue thereof to be laid up in ordinarj^ in convenient ports. — (21 April, 1806, c. 35, s. 2, v. 2, p. 390.) 774 The Navy. Pt.2. RE VISED STAT UTES. Sec. 1536. Sec. 1535. [Vessels, how officered and manned.] Vessels in actual service, in time of peace, shall be officered and manned as the President may direct, subject to the provisions of section fifteen hundred and twenty-nine. — (21 April, 1806, c. 35, s. 3, V. 2, p. 390.) Amendment to this eection was made by act | of section fifteen hundred and twenty- of March 3, 1901, quoted above, under nine, " appearing in this section, section 1529, Revised Statutes, which act In time of war retired officers may be assigned superseded section 1.529 and thereby super- to the command of vessels and squadrons, seded the words, "subject to the provisions (Sees. 1463-1465, R.S.) Sec. 1536. [Vessels to assist distressed navigators.] The President may, when the necessities of the service permit it, cause any suitable number of public vessels adapted to the purpose to cruise upon the coast in the season of severe weather and to afford such aid to distressed navigators as their circum- stances may require ; and such public vessels shall go to sea fully prepared to render such assistance. — (22 Dec, 1837, c. 1, v. 5, p. 208.) By act of March 3, 1905 (33 Stat., 1164), it was pro\dded that "the President in his dis- cretion may temporarily detail any vessel or vessels of the Navy to remove or destroy derelicts in the course of vessels at sea, " etc. By act" of May 12, 1906 (34 Stat., 190), the Secretary of the Treasury was authorized to have constructed a vessel " for the pur- pose of blomng up or otherwise destroying or towing into port wrecks, derelicts, and other floating dangers to navigation." Section 2759, Revised Statutes, provided that " the revenue cutters on the northern and northwestern lakes, when put in corunais- sion, shall be specially charged with aiding vessels in distress on the lakes." By act of April 19, 1906 (sec. 2, 34 Stat., 123), the construction was autliorized, under the supervision of the Revenue-Cutter Service, of a first-class ocean-going tug for service in saving life and property in tlie vicinity of the north Pacific coast of the United States, to be equipped with modern life and property saving appli- ances useful in assisting vessels and res- cuing persons and property from the perils of the sea. By resolution of October 31, 1893 (28 Stat., 13), it was provided that "the President of the United States be, and he is hereby, author- ized to make, with the several Govern- ments interested in the navigation of the North Atlantic Ocean, an international agreement providing for the reporting, marking, and removal of dangerous wrecks, derelicts, and other menaces to navigation in the North Atlantic Ocean outside the coast waters of the respective countries bordering thereon." By act of July 1, 1918 (40 Stat., 705), it was provided "that hereafter the Secretary of the Navy is authorized to cause vessels under his control adapted to the purpose, to afford salvage service to public or pri- vate vessels in distress: I'rovided, That when such salvage service is rendered by a vessel specially equipped for the purpose or by a tug, the Secretary of the Navy may determine and collect reasonable compen- sation therefor." By section 4642, Revised Statutes, it is pro- vided that all salv^age accruing or awarded to any vessel of the Navy shall be distrib- uted and paid to the officers and men entitled thereto in the same manner as prize money, under the direction of the Secretary of the Navy. The laws relating to prize were contained in sections 4613- 4652, Revised Statutes. By act of March 3, 1899, section 13 (30 Stat., 1007), it was provided that "all provisions of law authorizing the distribution among cap- tors of the whole or any portion of the pro- ceeds of vessels, or ar y property hereafter captured, condemned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy hereafter occurring in time of war, are herel^y repealed . ' ' By act of April 28, 1908 (35 Stat., 69), it was provided that the authority therein con- ferred upon the Secretary of Commerce to make and enforce regulations to promote the safety of life on navigable waters during regattas or marine parades may be transferred for any special occasion to the head of another department by the Presi- dent whenever in his judgment such transfer is desirable. By act of March 3, 1883 (22 Stat., 475), the Secretary of the Navy was authorized to constitute and introduce, as a portion of the equipment of the Navy, the life-saving dress adopted and approved by the Life- Saving Service of the United States, (By act of Jan. 28, 1915, 38 Stat., 800, the Life- Saving Service and the Revenue-Cutter Service were amalgamated under the name of the "Coast Guard.") Salvage. — Under section 1536, Revised Statutes, it is a part of the duty of the Navy to assist vessels in distress. In an opinion ren- dered as early as July 8, 1856 (7 Op. Atty. Gen., 756), the Attorney General remarked that '"officers and crews' of the public ships of the United States are not entitled to salvage, civil or military, as of complete legal right," and that "the" allowance of salvage, civil or mili- tary, in such cases, like the allowance of prize monev on captures, is against public policy, and ought to be abolished in the sea service as 775 Sec. 1538. Pt.2. REVISED STATUTES. The Navy. it was long ago in the land service." The dis- tribution of prize money has since been al)ol- ished by statute (see note above), but there has been no late legislation respecting salvage. (Naval Dig. 1916, p. 557, citing file 4496-79, Oct. 17, 1907. But see act July 1, 1918, noted above.) In the recent history of the Navy no claim has ])eon allowed for salvage, the Navy Depart- ment haA-ing taken the ground, in a number of cases, that such claims should not be made. In one or two instances, where a bonus was voluntarily tendered for distribution among the officers and men of a naval vessel, such gift has been informally accepted. (Naval Dig. 1916, p. 557, citing file Nos. 4496-79, Oct. 17, 1907; 7173; 27601-116; 2, May 17, 1915; 27673- 342, Dec. 23, 1915.) In a recent salvage case the actual cost of certain sah-age serxices rendered a merchant vessel by a naval vessel was collected and de- posited to the credit of the United States. (Naval Dig. 1916, p. 557, citing file 27601-116.) Sec. 1537. [Patented articles connected with marine engines.] No patented article connected with marine engines shall hereafter be purchased or used in connection with any steam-vessels of war until the same shall have been sub- mitted to a competent board of naval engineers, and recommended by such board, in writing, for purchase and use. — (18 July, 1861, c. 8, s. 3, v. 12, p. 268.) time of his employment or ser\ice. (Act July 1, 1918, 40 Stat., 705, amending act June 25, 1910, 36 Stat., 851. See also note to Constitution, Art. I, sec. 8, clause 8.) Suit may also be brought for use of invention by the United States prior to issuance of patent, where the grant of a patent was withheld by order of the President in the interest of the pubUc safety or defense. (Act Oct. 6, 1917, sec. 10, 40 Stat., 422.) The Secretary of the Navy was authorized, by act of August_29, lOio (39 Stat., 570), to construct, equip, and operate a laboratory for experimental and research work on the subject, among others, of "improvement and development in submarine engines," and such other necessary work for the benefit of the Government service. No application for patent shall be regarded as abandoned which has become the property of the Government of the United States and which is important to the armament or defense of the United States. (Sec. 4894, R. S., amended by act July 6, 1916, 39 Stat., 348.) Patent may be granted to public officers with- out payment of any fee where the inven- tion is used or to be used in the public ser\dce without payment of royalty. (Act Mar. 3, 1883, 22 Stat., 625.) Suit for compensation may be brought against the United States in Court of Claims for use of patented inventions without lawful authority, except where patentee is in the BerAdce of the United States, and except where the invention was made by an employee of the United States during the Sec. 1538. [Repairs on hull and spars.] Not more than three thousand dollars shall be expended at any navy-yard in repairing the hull and spars of any vessel, until the necessity and expediency of such repairs and the probable cost thereof are ascertained and reported to the Navy Department by an examining board, which shall be composed of one captain or commander in the Navy, designated by the Secretary of the Navy, the naval constructor of the yard where such vessel may bo ordered for repairs, and two master workmen of said yard, or one master workman and an engineer of the Navy, according to the nature of the repairs to be made. Said master workmen and engineer shall be designated by the head of the Bureau of Construction and Repair. — (21 Feb., 1861, c. 49, s. 1, v. 12, p. 147.) cost of such repairs, to be appraised by a competent board of naval officers, shall exceed twenty per centum of the estimated cost, appraised in like manner, of a new ship of the same size and like material: Provided further, That nothing herein con- tained shall deprive the Secretary of the Navy of the authority to order repairs of ships damaged in foreign waters or on the high seas, so far as may be necessary to bring them home." The urgent deficiency act of June 15, 1917 (40 Stat., 212), and the naval appropria- tion acts of July 1, 1918 (40 Stat., 730), and July 11, 1919 (41 Stat., 149), contained the The naval appropriation act of March 4, 1917 (39 Stat., 1184), and the appropriation acts in previous years, under the title, "con- struction and repair of vessels," contained the following provisions which have since been omitted: "Provided, That no part of this sum shall be applied to the repair of any wooden ship when the estimated cost of such repairs, to be appraised by a compe- tent board of naval officers, shall exceed ten per centum of the estimated cost, appraised in like manner, of a new ship of the same size and like material : J 'rovidcd further. That no part of this sum shall be applied to the repair of any other ship when the estimated 776 The Navy. Pt.£. REVISED STATUTES. Sec. 1541. following provision, which has since been omitted: "That the limitations imposed by existing law relative to repairs to vessels of the Navy shall not apply to the expendi- ture of funds made available in this act." The act of March 2, 1907 (34 Stat., 1195), required the Secretary of the Navy to report to Congress, at the commencement of each regular session, the number of ves- sels and their names upon which any re- pairs or changes are proposed which in any case shall amount to more than $200,000, expenditures for such repairs or changes to be made only after appropriations in detail are pro^^.ded by Congress. By act of March 3, 1909 (35 Stat., 769), the Secre- tary was required to report to Congress, at the beginning of each regular session, in addition to the report required by the act of March 2, 1907, a detailed statement showing the amount expended from each of the appropriations for the repair of every ship, where such repairs exceed for any one ship the sum of $200,000 in any one fiscal year. By act of August 29, 1916 (39 Stat., 605), the statutory limit of $200,000 for repairs and changes to capital ships, as provided in the act of March 2, 1907, was changed to $300,000. Sec. 1539. [Repairs on sails and rigging.] Not more than one thousand dollars shall be expended in repairs on the sails and rigging of any vessel, until the necessity and expediency of such repairs and the estimated cost thereof have been ascertained and reported to the Navy Department by an examin- ing board, which shall be composed of one naval officer, designated by the Secre- tary of the Navy, and the master rigger and the master sail-maker of the yard where such vessel may be ordered. — (21 Feb., 1861, c. 49, s. 1, v. 12, p. 147.) See note to section 1538, Revised Statutes. Sec. 1540. [Sale of vessels unfit to be repairedd The President may direct any armed vessel of the United States to be sold when, in his opinion, such vessel is so much out of repair that it will not be for the interest of the United States to repair her.— (21 April, 1806, c. 47, s. 3, v. 2, p. 402.) By act of September 7, 1916, section 6 (39 Stat., 730), it was provided that the President may transfer to the Shipping Board such vessels belonging to the Navy Department as are suitable for commercial uses and not required for naval use in time of peace. See notes to sections 418 and 1541, Revised Statutes. Sec. 1541. [Sale of unserviceable vessels and materials.] The Secretary of the Navy is authorized and directed to sell, at public sale, such vessels and materials of the United States Navy as, in his judgment, can not be advan- tageously used, repaired, or fitted out; and he shall, at the opening of each session of Congress, make a full report to Congress of all vessels and materials sold, the parties buying the same, and the amount realized therefrom, together with such other facts as may be necessary to a full understanding of his acts. — (23 Mar., 1872, c. 195, s. 2, v. 17, p. 154.) By act of June 30, 1890 (26 Stat., 194), the Secretary of the Navy was authorized to sell, after advertisement, condemned naval supplies, stores, and materials, either by public auction or by advertising for sealed proposals. By act of August 5, 1882, section 2 (22 Stat., 296), the sale or exchange was prohibited of old material of the Na\-y "which can be profitably used by reworking or other- wise in the construction or repair of ves- sels, their machinery, armor, armament, or equipment' '; it was required that such old material which can not be profitably used as aforesaid "be appraised and sold at public auction after public notice and advertisement shall have been given ac- cording to law under such rules and regu- lations and in such manner as the Secre- tary may direct"; and it was further re- quired that the Secretary of the Navy annually report in detail to Congress the proceeds of all such sales. The same act and section required that the Secretary of the Navy cause to be examined by com- petent boards of officers all vessels on their return from foreign stations, and all vessels in the United States as often as once in three years, if practicable, and strike from the Navy Register and report to_ Congress the name of such vessels as said board, with his concurrence, shall ascertain to be unfit for further service, or, if unfinished in any navy yard, which can not be fin- ished without disproportionate expense. By act of March 3, 1883, section 5 (22 Stat., 599), the Secretary was required to have appraised all vessels stricken from the Navy 777 Sec. 1541. PL 2. REVISED STATUTES. The Navy. Register pursuant to the act of August 5, 1882. and in his discretion to sell any such vessel for not less than its appraised value, after advertising in newspapers for sealed proposals and comphnng u-ith other de- tailed provisions of said act; the same act prohiliitod the sale of any vessel in the future in any manner other than as therein provided, "unless the President of the United States shall otherwise direct in ^^Titing." By act of August 29, 1916 (39 Stat., 605), the Secretary of the Navy was authorized to sell any or all of the auxiliary ships of the Navy, classified as colliers, transports, tenders, supply ships, special types, and hospital ships which are 18 years" and over in age, which he deems unsuited to pres- ent needs of the Navy, and which can be disposed of at an advantageous price, not less than 50 per cent of their original cost. Exchange of wom-out motor-propelled vehicles of the Naval Establishment as part of pur- chase price of new ones, was authorized by act of August 29, 1916. (39 Stat., 565.) President authorized to make regulations for purchase, preservation, and disposition of all articles, stores, and supplies for persons in the Navy. (Sec. 1549, R. S.) Sale of useless papers in the Navy Department, on naval vessels, and at na\y yards is authorized by acts of February 16, 1889 (25 Stat., 672); March 2, 1895 (28 Stat., 933); February 16, 1909, section 14 (35 Stat., 622); August 22, 1912 (37 Stat., 329); and March 3, 1915 (38 Stat., 929). Transfer of naval ordnance and ordnance mate- rial to the War Department was authorized by act of July 8, 1918 (40 Stat., 817). For reference to other laws relating to the sale, exchange, and loan of vessels or other property belonging to the naval service, see note to section 418, Revised Statutes. Mandamus proceeding's to compel deliv- ery of vessel to highest bidder. — The United States, as the owner in possession of a naval vessel, can not be interfered with behind its back; nor can the courts compel the Secre- taiy of the Navy, who has the custody of such vessel, to surrender it in a mandamus proceed- ing to which the United States is not and can not be made a party. (Goldberg v. Daniels, 231 U. S., 218.) Mandamus vail not lie at the instance of one who, in response to advertisement, has made the highest bid for a vessel, to compel the Secre- tary of the Navy to deliver the vessel. (Gold- berg V. Daniels, 231 U. S., 218.) The discretion of the Secretary of the Navy is not ended by receipt and opening of bids for a condemned naval vessel, even though they satisfy the conditions prescribed. Mandamus will not lie to compel him to accept the highest bid. (Goldberg v. Daniels, 231 U. S., 218, affirming U. S. v. Meyer, 37 App. D. C, 282.) Delivery of public property to contrac- tor as part payment on contract. — Sec- tions 1541 and 3618, Revised Statutes, confer upon the Secretary of the Navy the only authority by which he can dispose of the mate- rials of the United States Navy. When in the judgment of the Secretary they can be advan- tageously used they must be used; when they can not be so used they must be sold at public sale and the proceeds covered into the Treasury. No officer of the Navy Department had any authority, therefore, to deliver to a contractor the materials of the Navy to be sold by him and to allow him to put the proceeds into his own pocket. (Steele v. U. S., 113 U. S., 128, 133.) A private sale of old material arising from the breaking up of a vessel of war, made by an offi- cer of the Navy Department to a contractor for repairs of a war vessel _ and machinery, is in violation of the provisions of section 1541, Re\dsed Statutes. (Steele v. U. S., 113 U, S., 128.) The allowance of the estimated value of such material in the settlement of the contractor's accounts is a violation of the provisions of sec- tion 3618, Revised Statutes. (Steele v. U. S., 113 U. S., 128.) A settlement of such accounts at the Navy Department and at the Treasury, in which the contractor was debited vdth the material at the estimated value, does not preclude the United States from showing that the estimates were far below the real value, and from recovering the difference between the amount allowed and the real value. (Steele v. U. S., 113 U. S., 128.) Delay in enforcing a claim arising out of an illegal sale of the property of the United States at a value far below its real worth can not be set up as a bar to the recovery of its value. (Steele V. U. S., 113 U. S., 128.) An officer of the Government can not trade off to a contractor, in payment of the money due him on his contract, old materials belong- ing to the United States, when in the judgment of the officer they can not te advantageously used. The delivery of such old material to a contractor, with or ^vithout the authority of the Navy Department, if it was intended to vest in the contractor any title to the material, waa without authority of law. Where the property 80 deli\'ered was charged to the contractor at about one-fourth its actual value, the United States is entitled to recover the difference be- tween the amount charged and its real value. The whole transaction was illegal, and the con- tractor is chargeable with knowledge of the fact. It was in effect a private sale of the property of the United States at a grossly inadequate price. The fact that the account had been settled by the officers of the Na\7- Department did not cure the unauthorized acts. Both the disposition of the property and the settlement of the account were without authority of law and not binding on the Govern- ment. (Steele v. U. S., 113 U. S., 128, 133.) Exchange of vessels. — The Secretary of the Na\y can not exchange a vessel belonging to the Navy, which has been condemned as unfit for naval purposes, for another vessel, notwithstanding the exchange might be of advantage to the public service. The disposi- tion of such vessel is controlled by the act of May 23, 1872, section 2 [now sec. 1541, R. S.]. The Secretary of the Navy can only dispose of vessels and materials belonging to the United States and under the control of his department 778 The Navy. PL 2. REVISED STATUTES. Sec. 1543. in manner as prescribed in said section. (14 Op. Atty. Gen., 369.) For other cases, see notes to sections 161, 355, and 418, Revised Statutes. Loan of public property. — The head of a department has no power to turn over Govern- ment property to States or individuals, to be used for any purpose not authorized by some act of Congress, any more than he has power to gi^'e such property away absolutely. The property, real and personal, of the United States is dedicated by law to the uses and pur- poses of the United States, and nothing short of an act of Congress can authorize its application to any other uses and purposes. The question is one of power, and that must come from Congress and is not to be inferred from the fact that what is recommended would be highly beneficial to the United States. Whether the proposed application of Government property to State purposes is advisable or not is a ques- tion for the legislative and not the executive department of the Government. (20 Op. Atty. Gen., 93, 96, citing Steele v. U. S., 113 U. S., 128.) For other cases, see notes to sections 161, 355, and 418, Revised Statutes. Diposition of vessel where bids are less than appraised value. — The act of March 3, 1883 (22 Stat., 599), pro\ddes for the advertise- ment and sale of condemned vessels of the Navy and that no such vessel shall be sold for less than the appraised value. Wliere the Secre- tary of the Na\'y has endeavored to comply with that statute, but no one is willing to pay the appraised value, the case is one not speci- fically covered by any statute. In the absence of any such statute, the Secretary, by virtue of his office and because of his general duty to care for and preserve the property of the Government under his control, has the right to reject all bids submitted and to dispose of such condemned vessel in such way as may seem to him to be most advantageous to the Govern- ment. He may, therefore, very properly utilize such portion of the vessel as is of value, and destroy that which remains and which ia valueless. (28 Op. Atty. Gen., 470.) It is customary to remove from condemned naval vessels before sale such articles of outfit and equipage as may still be serviceable to the Government. This custom does not depend upon any statute authorizing it, but is based upon the exercise of the general official power which the Secretary of the Navy has, in virtue of his office, to properly care for and protect the public property committed to his control and to prevent unnecessary waste of Government property. (28 Op. Atty. Gen., 470.) The Secretary of the Navy may legally remove the engine and boiler from a naval barge for future use by the Government, since the vessel has been found unfit for further service, and the highest bid received for the vessel was much less than the value of the engine and boiler. The hull, being valueless, may be sunk or de- stroyed. (28 Op. Atty. Gen., 470.) Status of vessel stricken from, the Navy Register. — Although a board to examine ves- sels of the Navy, under the act of August 5, 1882 (22 Stat., 296, sec. 2), finds a vessel "unfit for further service as a cruiser, " and her name is stricken from the list of ships in the Navy Register, that does not necessarily muster her out of the service. A vessel condemned by a board as unfit for a cruiser, but subject to the usual naval routine and put to kindred uses, her officers being subject to the same rules as before she was condemned, remains, as to those serving on her, as much a vessel of the Navy as before. (Pierce v. U. S., 33 Ct. Cls., 294.) Sec. 1542. [Commandants of navy-yards.] The President may select the conunandants of the several navy-yards from officers not below the grade of commander.— (2 Aug., 1861, c. 36, v. 12, p. 285. 5 July, 1862, c. 134, s. 2, V. 12, p. 510.) Military command by staff officers: See section 1488, Revised Statutes. Marine officers not to command navy yards. See section 1617, Revised Statutes. Commandant must be line officer. — The grade of commander exists only in the line of the Navy, therefore the words, "officers not below the grade of commander, " used in this section, require that the commandants of the several navy yards be officers of the line. (File 5038-20:1, Jan. 18, 1915. See note to sees. 1404 and 1390, R. S.) "Navy yard" defined. — Where the Com- monwealth of Virginia ceded to the United States jurisdiction over certain public lands forthepurposeof anavy yard, by "navy yard" was meant not merely the land on which the Government does work connected with ships of the Navy, but the waters contiguous neces- sary to float the vessels of the Navy while at the navy yard. (Ex parte Tatem, 23 Fed. Cas., No. 13759; see art. 5354, Naval Institutions, 1913.) Transfer of property between navy yards. — When specifically appropriated for to be used at a designated navy yard, can not be transferred to another without legislative au- thority. (28 Op. Atty. Gen. , 511, as to floating dry dock; 31 Op. Atty. Gen., 594, as to ma- chinery and tools.) Abolishing navy yards. — Whether this may be done without legislative authority, quaere. (31 Op. Atty. Gen., 594, 596.) Sec. 1543. [Master workmen.] The persons employed at the several navy- yards to superintend the mechanical departments, and heretofore known as master mechanics, master carpenters, master joiners, master blacksmiths, master boiler-makers, master sail-makers, master plumbers, master painters, master calkers, master masons, master boat-builders, master spar-makers, 54641°— 22- -50 779 Sec. 1544. PL 2. RE VISED STAT UTES. The Navy, master block-makers, master laborers, and the superintendents of rope-walks shall be mon skilled in their several duties and appointed from civil life, and shall not be appointed from the oflicers of the Navy. — (17 June, 1868, c. 61, s. 1, V. 15, p. 69.) Sec. 1544. [Laborers, how selected.] Laborers shall be emploj^ed in the several navy-yards by the proper officers in charge with reference to skill and eihciency, and without regard to other considerations. — (23 May, 1872, c. 195, s. 1, V. 17, p. 146.) No enlisted men or seamen, not inchidinfr com- missioned and warrant ofRoers, on battle- ships of the Nayy, when such battleships are docked or laid up at any navy yard for repairs, shall be ordered or required to per- form any duties except such as are or may be performed bv the crew while at sea or in a foreign port.' (Act Aug. 22, 1912. 37 Stat., 355.) Moral character considered. — Taken liter- ally, section 1544 might require a disregard for good character or personal morals on the part of an applicant for employment if his skill in his trade and efficiency as a mechanic were notable and undoubted. Such was not the intention of Congress, and this section should be read as though the word "primarily" or the words "first of all" were interpolated between the words ' 'reference" and "to "; or as though the words "suggesting the choice of those less eflBcient and skillful" had been appended after the word "considerations." (27 Op. Atty. Gen., 184, 189.) Pohtical considerations. — There can be no doubt that the "considerations" which Congress had in mind refer to general complaints which had been made by reason of the alleged employment of workmen at navy yards for political considerations and through the influ- ence of politicians in order to secure expected partisans or personal advantage. This section intended to lay down, as a rule for the guidance of officers at the several navy yards, the princi- ple that workmen should be employed for the benefit of the Government and not for any other reason. (27 Op. Atty. Gen., 184, 189.) Nature of tests to determine fitness. — The Secretary of the Navy may direct by what reasonable and appropriate tests fitness or com- parative fitness may be ascertained, and in the absence of any law, rule, or order on the sub- ject, that matter would be left to the discretion of the appointing power. (27 Op. Atty. Gen., 184.) Persons discharged from military serv- ice. — Section 1544, Revised Statutes, must be construed in connection with 1754, Revised Statutes, which provides that persons honora- bly discharged from the military or naval serv- ice by reason of disability, etc., incurred in the line of duty, shall be preferred for appoint- ments to civil offices where they are found to possess the necessary business capacity to prop- erly discharge the duties of such office. (27 Op^ Atty. Gen., 184.) Regulations promulgated to give effect to sections 1544 and 1754, Revised Statutes, should provide that persons honorably dis- charged from the military or naval ser^-ice by reason of disaV)ility resulting from wounds or sickness incurred in the line of duty, if fitted physically, mentally, and morally to discharge with reasonable skill and efficiency the duties of the position to be filled, are entitled to be selected in preference to others, although the latter may possess greater skill and efficiency. As between persons within this privileged class relative skill and efficiency should be decisive as to the right of emplo\'Tnent, and all other considerations should be subordinated thereto. With respect to all other persons, including those honorably discharged on account of ex- piration of enlistment or reasons other than disability incurred in the line of duty, superior fitness for the emplojTuent should be the decisive consideration; but where there is no appreciable difference in this respect between two applicants, then an honorably discharged soldier, sailor, or marine would be entitled to preference in conformity with the intendment of section 1755, Revised Statutes. (27 Op- Atty. Gen., 184.) Preference for employment. — "Persons employed in the clerical, drafting, and inspec- tion force at na\'y yards and stations discharged for lack of work or insufficiency of funds shall for one year thereafter be preferred for employ- ment in such navy yards and stations in the clerical, drafting, inspection, and messenger forces." (Act Mar. 3, 1909, 35 Stat., 755.) Classifi.ed service. — Ci\ilian' employees at na\y yards, other than laborers or workmen, are included within the classified ser"\dce and are not exempted from competitive examina- tion by the terms of section A of the Ci^il Serv- ice Rules, but in so far as they come within the provisions of section 3 of Rule III are sub- jected to special tests of fitness to be prescribed in accordance with the terms of the latter rule. (27 Op. Atty. Gen., 184.) Mandamus will lie to compel the members of the Board of Labor EmploATnent at the United States Navy Yard, Washington, D. C, to register an applicant for examination for employment as mechanic or laborer, where the refusal of the board is based solely upon the citi- zenship of the applicant and in this respect he is eligible under Rule 5 of the Civil _ Ser\ice Commission, promulgated by the President on April 15, 1903, wMch modified previous regula- tions of the Navy Department. (U. S. v. Bo^^'yer, 25 App. D. C., 121. See note to sec. 417, R. S.) 780 The Navy. Pt.2. REVISED STATUTES. Sec. 1545. Sec. 1545. [Salaries; per diem compensation. Repealed.] This section provided as follows: "Sec. 1545. Salaries sliall not be paid to any employes in anjr of the navy-yards, except those who are designated in the estimates. All other persons shall receive a per diem compen- sation for the time during which they may be actually employed."— (14 July, 1862, c. 16 4, s. 1, 12, p. 564.) It was expressly repealed by act of March 3, 1909 (35 Stat., 755), which act made the fol- lowing new provision on the same subject (35 Stat., 754, 755): "That hereafter the rates of pay of the clerical, drafting, inspection, and messenger force at navy-yards and naval sta- tions and other stations and offices under the Na\y Department shall be paid from lump appropriations and shall be fixed by the Secre- tary of the Navy on a per annum or per diem basis as he may elect; that the number may be increased or decreased at his option and shall be distributed at the various navy- yards and naval stations by the Secretary of the Navy to meet the needs of the naval service * * *; that the total amount expended annually for pay for such clerical, drafting, inspection, and mes- senger force shall not exceed the amounts specifically allowed by Congress under the several lump appropriations, and that the Secretary of the Navy shall each year, in the annual estimates, report to Congress the num- ber of persons so employed, their duties, and the amount paid to each. " (See act of Aug. 29, 1916, 39 Stat., 558, as to lump-sum employees. Leaves of absence. — By act of August 29, 1916 (39 Stat., 617), it was provided ' 'that each and every employee of the navy yards, gun factories, naval stations, and arsenals of the United States Government is hereby granted thirty days' leave of absence each year, with- out forfeiture of pay during such leave: Pro- vided further, That it shall be lawful to allow pro rata leave only to those ser\dng twelve consec- utive months or more: And provided further, That in all cases the heads of divisions shall have discretion as to the time when the leave can best be allowed: And provided further, That not more than thirty days' leave with pay shall be allowed any such employee in one year: Provided further, That this provision shall not be construed to deprive employees of any sick leave or legal holidays to which they may now be entitled under existing law. ' ' The act of March 3, 1909 (35 Stat., 755), which was modified by the above-quoted pro- visions in the act of August 29, 1916, contained the following with reference to per diem em- ployees at na\y yards and naval stations and other stations and offices under the Navy De- partment: ' 'That such per diem employees may hereafter, in the discretion of the Secretary of the Navy, be granted leave of absence not to exceed fifteen days in any one year, which leave may, in exceptional and meritorious cases, where such an employee is ill, be ex- tended, in the discretion of the Secretary of the Navy, not to exceed fifteen days additional in anyone year." "All officers and employees of the United States and of the District of Columbia who shall be members of the National Guard shall be en- titled to leave of absence from their respective duties, without loss of pay, time or efficiency rating, on all days diu-ing which they shall be engaged in field or coast-defense training or- dered or authorized under the provisions of this Act." (Act June 3, 1916, sec. 80, 39 Stat., 203.) The naval appropriation act of March 4, 1913 (37 Stat., 893), provided that "employees while taking their leaves of absence shall not receive compensation for services rendered during the period of such leave of absence in addition to leave pay. " The act of August 29, 1916 (39 Stat., 557), provided that ' 'hereafter any civilian employee of the Navy Department who is a citizen of the United States and employed at any station outside the continental limits of the United States may, in the discretion of the Secretary of the Navy, after at least two years' contin- uous, faithful, and satisfactory service abroad, and subject to the interests of the public service, be granted accrued leave of absence, with pay, for each year of service, and if an employee should elect to postpone the taking of any or all of the leave to which he may be entitled in piu-- suance hereof such leave may be allowed to accumulate for a period of not exceeding four years, the rate of pay for accrued leave to be the rate obtaining at the time the leave is granted. " Holidays. — "The employees of the Navy Yard, Government Printing Office, Bureau of Printing and Engraving, and all other per diem employees of the Government on duty at Wash- ington, or elsewhere in the United States, shall be allowed the following holidays, to-wit: The first day of January, the twenty-second day of February, the fourth day of July, the twenty- fifth day of December, and such days as may be designated by the President as days for national thanksgi-ving, and shall receive the same pay as on other days. " (Res. Jan. 6, 1885, 23 Stat., 516. See 21 Comp. Dec, 337, noted below under "Pay at navy yards for work on holidays.") "All per diem employees of the Government, on duty at Washington or elsewhere in the Unit- ed States, shall be allowed the day of each year, which is celebrated as 'Memorial' or 'Decora- tion Day ' and the fourth of July of each year, as holiday, and shall receiv-e the same pay as on other days." (Res. Feb. 23, 1887, 24 Stat., 644.) "The first Monday of September in each year, being the day celebrated and known as Labor's Holiday, is hereby made a legal public holiday, to all intents and purposes, in the same manner as Christmas, the first day of January, the twenty-second day of February, the thirtieth day of May, and the fourth day of July are now made by law public holidays." (Act June 28, 1894, 28 Stat., 96.) Every Saturday after 12 o'clock noon is a holiday in the District of Columbia under the foUbwing provision of the District of Columbia Code, section 1389 (act Mar. 3, 1901, 31 Stat., 1404), as amended by act of June 30, 1902 (32 Stat., 520): "The following days in each year, namely, the first day of January, commonly 781 Sec. 1545. PL 2. REVISED STATUTES. The Navy. called New Year's Day; the twenty-second day of February, known as Washington's Birthday; tlie Fourth of July- the thirtieth day of May, commonly called Decoration Day; the first Monday in September, known as Labor's Holi- day; the twenty-fifth day of December, com- monly called Christmas Day; every Saturday, after twelve o'clock noon; any day appointed or recommended by the President of the United States as a day of pul)lic fasting or Thanks- giving, and the day of the inauguration of the President, in every fourth year, shall be holi- days in the District for all purposes." Holidays falling on Sunday are observed on the following day in the District of Columbia under section 1389 of the Code (cited above), which contains the following clause: "WTaen- ever any day set apart as a legal holiday shall fall on Sunday, then and in such case the next succeeding day shall be a holiday * * *• " The Naw Regulations, article 1289, after pro- viding that January 1, February 22, May 30, July 4, the first Monday in Septeml)er, Decem- ber 25, "and such other days as may be desig- nated by the President (including the day for National Thanksgiving) shall be regarded as holidays on board ships of the Navy and at naval stations," further pro\-ides that "when- ever any of the above-designated dates falls on Sunday, the following Monday shall be observ- ed as a holiday." General provision to the same effect with reference to employees of the Federal Government was made by Executive order of May 22, 1909. Civilian employees traveling from Unit- ed States to duty in insular possessions and return. — "The Secretary of the Navy, in his discretion, is authorized to pay all civilian employees appointed for duty in the PhUippine, Hawaiian, and Samoan islands, the island of Guam, and the island of Porto Rico, from the date of their sailing from the United States until they report for duty to the officer under whom they are to serve, and while returning to the United States by the most direct route and with due expedition, a per diem compensation corresponding to their pay while actually em- ployed ; and in cases where the appointee is not to fill an existing vacancy his pay while travel- ing may be charged to the annual appropriation of the bureau concerned." (Act July 1, 1902, 32 Stat., 663.) Pay at navy yards for work on holi- days. — \\Tiere employees of the Navy Depart- ment are required to perform labor in the District of Columbia on Saturday afternoon, which is a legal holiday in the District of Columbia for all purposes, they are entitled to be paid therefor at the ordinary rate of pay under Revised Statutes, section 1545. (Adams ^. U. S., 42Ct. Cls., 192.) The work in a navy yard is under the control of the Secretary of the Navy, and where he directs work to be performed by per diem em- ployees on holidays, a regulation fixing pay operates as a contract if it does not contravene some law. (Adams r. U. S., 42 Ct. Cls., 192.) An order issued by the Secretary of the NaVy, requiring employees to render service on Satm-- day afternoons with no other compensation than such as shall be due by reason of the extension of hours, is presumed to be issued with the approval of the President under section 1547, Revised Statutes. (Adams v. U. S., 42 Ct. Cls., 192.) \\'here a statute gives to certain employees pay without work on holidays, and they are re- (juired by the head of the department to render service on holidays, he may make provision by regulation or contract for extra pay for services 80 performed. (Adams v. V. S., 42 Ct. Cls., 192.) Exemption -from work on holidays does not carry with it the right to pay. If Congress makes no provision for payment to per diem employees on holidays, their compensation is limited to the time thev are actually employed. (Adams v. U. S., 42 Ct. Cls., 192.) Actual service is the basis for pay, and where there is no law giving pay without work, the per diem employee is not entitled to be paid. (Adams V. U. S., 42 Ct. Cls., 192.) Per diem employees of the Government at navy yards and stations which are not in the the United States are entitled to be paid on holidays as provided in article 382, Naval In- structions, as amended July 6, 1914. _ By sec- tion 1545, Revised Statutes, per diem em- ployees in navy yards were allowed compensa- tion only for time actually employed, but this statute was repealed by the act of March 3, 1909 (35 Stat., 7.53, 755), and there is no existing law which said article of the Naval Instructions contravenes (21 Comp. Dec, 337). Hawaii is in the United States within the meaning of the joint resolution of January 6, 1885 (23 Stat. 516), and its provisions as to pay for certain holidays are applicable to per diem employees at navy yards within that territory (21 Comp. Dec, 337). Suspension of work for part of day under Executive order.— On April 6, 1899, the Washington navy yard being closed at noon pursuant to an Executive order, in connection with ceremonies attending the interment of the bodies of soldiers and sailors whose lives were lost in the War with Spain, the per diem em- ployees of the yard should receive compensa- tion for the entire day. Section 1545, Revised Statutes, does not restrict the employees under such circumstances to compensation for the time they were actually engaged in doing work. The employees did not cease work on their ovra motion, nor were they discharged from the Government service for the remaining part of the day. They had severally begun a day's work under a contract with the Government, and had continued to work until the authori- ties of the shop closed the navy yard, shut up its workshops, and arbitrarily required them to stop. They were still actually in the em- plovTnent of the Government, though instead of laboring in the navy yard they vvere en- gaged, by direction of the President, in doing honor to the heroes who gave their lives for the country in a foreign war. \Miile the statute of the United States provides that eight hours shall constitute a day 's_ work for all laborers, workmen, and mech^ajiics who may be em- ployed by or on behalf of the Government of the United States, there is no rule of law which exempts the Government from the same 782 The Navy. Ft. 2. REVISED STATUTES. Sec. 1546. Government. The suspension of such an em- ployee by the commandant is in effect his dis- charge; and the fact that, after his suspension, a board is appointed to investigate charges against him is no recognition of his status as an employee, and gives him no right to compen- sation, nor to a recovery of sums expended in traveling to attend before the board. (Mur- phy V. V. S., 79 Fed. Rep., 255. For other cases, see note to sec. 416, R. S.). obligation to its employees as that which rests upon a private individual. (22 Op. Atty. Gen., 472). Employee suspended by order of com- mandant. — One who is employed at a navy yard at a per diem compensation is not entitled to compensation except for the_ time during which he actually renders services; and the fact that, after being suspended by the com- mandant, he holds himself ready to perform such services, gives him no claim against the Sec. 1546. [Requiring contributions for political purposes.] No officer or employe of the Government shall require or request any working man in any navy-yard to contribute or pay any money for political purposes, nor shall any working man be removed or discharged for political opinion; and any officer or employe of the Government who shall offend against the provisions of this sec- tion shall be dismissed from the service of the United States. — (2 Mar., 1867, c. 172, s. 3, V. 14, p. 492.) By act of June 30, 1876 (19 Stat., 69), it was provided that ' 'no increase of the force at any navy yard shall be made at any time within sixty days next before any election to take place for President of the United States, or members of Congress, except when the Secretary of the Navy shall certify that the needs of the public service make such increase necessary at that time which cer- tificate shall be immediately published when made. " Civil Service Commission is to prepare rules on the subject of political contributions and services by persons in the public service, and preventing the coercion of any person 's political action bv persons inthepublicserv- ice. (Act.Ian. 16, 1883, sec. 2, 22 Stat. , 403.) Detailed records of political contributions re- quired to be kept and filed, etc., bv politi- cal committees. (Act June 25, 1910, 36 Stat., 822, as amended by act Aug. 19, 1911, 37 Stat., 25.) Punishment of persons in the United States service for directly or indirectly soliciting or receiving political contributions from ofBcers or employees of the United States is provided for by United States criminal code, act of March 4, 1909, sections 118, 122 (35 Stat., 1110). Punishment of any person for soliciting in any manner whatever or receiving any political contribution in any room or building occupied in the discharge of ofhcial duties by any employee of the United States, or in any navy yard, fort, or arsenal, is pro- vided for by United States criminal code, act of March 4, 1909, sections 119, 122 (35 Stat., 1110). Punishment of any officer or employee of the United States for discharging, promoting, or degrading, or changing the official rank or compensation of any other officer or em- ployee, or promising or threatening to do so, for giving or withholding any political con- tribution, is provided for by United States criminal code, act of March 4, 1909, sections 120, 122 (35 Stat., 1110). Punishment of any person in the service of the United States for directly or indirectly giv- ing any political contribution to any other person in the United States service, is pro- vided for by United States criminal code, act of March 4, 1909, sections 121, 122 (35 Stat., 1110). Purpose of section. — The evident purpose of Congress in all this class of enactment has been to promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service. Clear- ly such a purpose is within the just scope of legislative power. If contributions from those in public employment may be solicited by others in official authority, it is easy to see that what begins as a request may end as a demand, and that a failure to meet the demand may be treated by those having the power of removal as a breach of some supposed duty gi'o'nang out of the political relations of the party. The law contemplates no restrictions upon either giving or receiving, except in so far as may be neces- sary to protect in some degree those in the pub- lic service against exactions through fear of personal loss. This purpose of the restriction and the principle on which it rests are rnost distinctly manifested in section 1546, Re\'ised Statutes. If there were no other reasons for legislation of this character than such as relate to the protection of those in the public service against unjust exactions, its constitutionality would be clear. But there are other reasons equally good. If persons in public employ may be called on by those in authority to con- tribute from their personal income to the ex- penses of political campaigns, and a refusal may lead to putting good men out of the service, liberal payments may be made the ground for keeping poor ones in. Also, if part of the com- pensation received for public services must be contributed for political purposes, it is easy to see that an increase of compensation may be required to provide the means to make the con- tribution, and that in this way the Government itself may be made to furnish indirectly the money to defray the expenses of keeping the political party in power that happens to have for the time "being the control of the public patronage. (Ex parte Curtis, 106 U. S., 371.) 783 CHAPTER SEVEN. GENERAL PROVISIONS RELATING TO THE NAVY. Sec. 1547. Regulations. 1548. Copy to be furnished to officers. 1549. Regulations of supplies. 1550. Appointment of persons to disburse money on foreign stations. Sec. 1551. Insane of the Navy. 1552. Coal depots. 1553. Enticing persons to desert. 1554. Captured flags. 1555. Preservation of, in some public place. Sec. 1547. [Regulations.] The orders, regulations, and instructions issued by the Secretary of the Navy prior to July 14, 1862, with such altera- tions as he may since have adopted, with the approval of the President, shall be recognized as the regulations of the Navy, subject to alterations adopted in the same manner. — (14 July, 1862, c. 164, s. 5, v. 12, p. 565.) See note to section. 161, Revised Stat- utes, for collection of decisions on the subject of executive regulations. Valid regulations have the force of law. — It is a well-settled rule of judicial con- struction that the regulations issued by the Secretary of the Na\y, in conformity with section 1547 of the Revised Statutes, are vaHd and have the force of law when they are not inconsistent with the statute under which they are issued by the Secretary. (25 Op. Atty. Gen., 270, 274. (See below, "Proceedings of courts-martial.") Must be consistent with law. — "The authority of the Secretary to issue orders, regu- lations and instructions, with the approval of the President, in reference to matters connected with the naval establishment, is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress in reference to the Navy. He may, with the approval of the President, establish regulations in execution of, or supple- mental to, but not in conflict with, the statutes defining his powers or conferring rights upon others. The contrary has never been held by this court. " (U. S. v. Symonds, 120 U. S., 46, 49; Glavey v. U. S., 182 U. S., 595, 605.) The orders, regulations, and instructions issued by the Secretary of the Navy under Revised Statutes, section 1547, must be in accordance with law and upon a subject which the law has not determined, adjusted, or de- fined. A regulation of an executive depart- ment must conform to the law, if a law exists upon the subject of the regulation. The Secre- tary of the Navy can not change the character of an officer's ser-vice from sea service to shore service by simply ordering that it be so regard- ed; sea service is defined ])y section 1571, Re- vised Statutes, and the final construction of the statute is vested in the judiciary. (Symonds V. U. S., 21 Ct. Cls., 148; affirmed, 120 U. S., 46.) For other cases, see specific rulings noted below. Detachment of officers from Marine Headquarters. — Article 4141 of the Navy Regulations, approved May 14, 1913, is in con- travention of existing statutes and therefore in- valid, in that it permits officers of the staff departments of the Marine Corps to be detached permanently from the headquarters of the commandant, and gives the power to the com- mandant of the corps to impose duties upon these staff officers inconsistent with their staff functions. (30 Op. Atty. Gen., 234.) Regulations of a legislative character. — Prior to the act of July 14, 1862 (now section 1547, R. S.), it was held by the Attorney General that a code of regulations issued by the President, February 15, 1853, for the govern- ment of the naval ser\dce, entitled "System of Orders and Instructions," was without legal validity; that said system was neither more nor less than rules for the government and regu- lation of the naval forces, "that precise tiling which the Constitution empowers Congress to make;" and that, even if it be conceded, "what might well be questioned," that Con- gress can delegate to others the power to make a law, said system could not lay claim to legality by virtue of any power delegated to the President by Congress, as there was no act of Congress authorizing same to be issued or thereafter adopting same. (6 Op. Atty. Gen., 10, reviewing liistory of Navy Regulations.) It is not intended to say that the President, as Commander in Chief of the land and naval forces, has not some power to issue directions and orders; so also has a commodore in command of a squadron, or a general in the field. But such orders and directions, when issued by the President, must be within the range of purely executive or administrative action. Cases may be supposed in which it is not easy to draw the line between wliat is legislative and what is executive or administrative; and so it is in re- gard to every such question of the distinction of powers. (6 Op. Atty. Gen., 10.) 784 The Navy. PL 2. REVISED STATUTES. Sec. 1547. The Army Regulationg derive their force from the power of the President as Commander in Chief, and are binding upon all within the sphere of his legal and constitutional authority. (Kurtz V. Moffitt, 115 U. S., 487, 503.) The act of 1862 (now sec. 1547, R. S.), was only intended to recognize the power of the President to alter regulations which he was originally competent to adopt and promulgate without express authority of Congress; no just rule of construction would authorize gi\'ing to this provision the force and effect of a general delegation of legislative authority to the ex- ecutive at his pleasure to pass upon and regu- late subjects which were in their own nature exclusively subjects of legislative action and cognizance, or which Congress had previously fixed by law and which the regulations thereby recognized had not undertaken to modify or alter. (13 Op. Atty. Gen., 10.) Regulations specifically adopted by Con- gress can not be altered by President. — Congress, by acts of August 5, 1854, chapter 268, section 4, and March 3, 1859, chapter 76, section 2, specifically adopted certain orders of the Secretary of the Navy, dated August 31, 1846, May 27, 1847, and January 13, 1857, upon relative rank ; this fact gave to such orders the character of legislative acts; they thereby ceased to be orders or regulations of the execu- tive and were incorporated into the statute law as laws of Congress. Accordingly, the act of July 14, 1862, section 5 (now sec. 1547, R. S.), which authorized the Secretary of the Navy, with the approval of the President, to adopt alterations in "orders, regulations, and in- structions" theretofore issued by the Secretary of the Navy, can not properly be treated as comprehending or embracing the above-men- tioned orders, which had been previously recog- nized and established by legislation as regu- lations of Congress on the subject of the relative rank of staff officers of the Navy. (13 Op. Atty. Gen., 10, overruling 10 Op. Atty. Gen., 413, noted below.) The executive has no power, without express authority of law, to fix the relative rank of the line and staff officers of the Navy. However, the fifth section of the act of July 14, 1862, re- cognizing the orders of the Secretary of the Navy theretofore issued as regulations of the Navy Department and authorizing alterations thereof, confers onthe Secretary of the Navy, with the approbation of the President, power to alter any orders issued by him before the passage of the act fixing the relative rank of the line and staff officers of the Navy. If, there- fore, the head of the Navy Department, as the Minister of the President, has at any former period, by any order or regulation, fixed the relative rank of the line and staff officers of the Navy, it is competent for him, with the appro- bation of the President, under authority of the provision cited, to make such alterations in such order or regulation as in his judgment the good of the service may require. (10 Op. Atty. Gen., 413; overruled by 13 Op. Atty. Gen., 10, noted above.) Certain regulations issued by the Secretary of the Navy, with the approbation of the Presi- dent, on 13 March, 1863, establishing and in- creasing the relative rank of the staff officers of the Navy, and modifying previous orders which had been specifically adopted by Con- gress, held not founded upon valid authority of law. (13 Op. Atty. Gen., 10.) Precedence of line and staff officers. — Article 21 of the Navy Regulations, 1893 (art. 1009, Navy Regs., 1913), fixing the order in which officers of the line and different staff corps shall take precedence when of the same date, is \'iithin the authority conferred upon the Secretary of the Navy, by Revised Statutes, section 1547. (21 Op. Atty. Gen., 46.) Rank of aids to rear admirals. — Section 1547, Revised Statutes, provides that the Sec- retary of the Navy, -w-ith the approval of the President, can make necessary regulations for the Navy, and when the law provides for ad- ditional pay of aids to admirals it would seem both proper and necessary for the regulations to provide under what circumstances such aids should be appointed and what should be their rank. There is no other branch of the Govern- ment service interested in the rank of officers to be detailed for such service, and there is no law prohibiting the Secretary of the Navy, with the approval of the President, from de- termining that matter. When such regula- tions are promulgated, they have the force of law. (Jones v. U. S., 49 Ct. Cls., 16; compare Knox V. U. S., 52 Ct. Cls., 22, 28.) Command of hospital ships. — The Navy Regulations, edition of 1909, article 37,_ para- graph 2, approved by the President, provide for the command of hospital ships by a medical officer not below the grade of surgeon. The law provides that such regulations, when so approved, shall be the regulations of the Navy, and they have the force of law when not in- consistent therewith. The orders _ preceding this regulation and the regulation itself were issued and adopted in accordance with law. The regulation referred to may at any time be changed or modified by the President or by the Secretary of the Navy with the approval of the President. (27 Op. Atty. Gen., 571.) Proceedings of covirts-martial. — The Or- ders, Regulations, and Instructions for the Administration of Law and Justice in the United States Navy, issued by the Secretary of the Navy under authority of the President in 1870, were recognized and given the sanc- tion of law by section 1547 of the Revised Sta- tutes, passed since the adoption of such regula- tions. Accordingly, section 127 of the said regulations, providing that "when the offense is a disorder or neglect not specially provided for, it should be charged as 'scandalous conduct tending to the destruction of good morals, '"is a valid regulation conferring upon a court- martial jurisdiction over a charge of scanda- lous conduct tending to the destruction of good morals, and it is not important to inquire in a specific case whether such charge should be considered as made under the concluding words of the first clause of article 8, section 1624, Revised Statutes, punishing "profane swearing, falsehood, drunkenness, gambling, theft, or any other scandalous conduct tending to the destruction of good morals, " or under article 22, section 16ii4, Revised Statutes, 785 Sec. 1547. PL 2. REVISED STATUTES. The Navy. punishing "all offenses committed by persons belonging to the Navy ^vhi^•h are not specified in the foregoing articles, " for in either \iew it Bhould, under the regulations of 1870, recog- nized and sanctioned by Congress, be charged as ' 'scandalous c-onduct tending to the destruc- tion of good morals. " (Smith v. \\Tiitney, 116 U.S., 167.) "Regulations for the administration of law and justice, " issued April 15, 1870, which pro- \'ided for revision by naval courts-martial of their proceedings and sentence when directed by the convening authority, were authorized by section 1547, Revised Statutes, and have the force of law. (Ex parte Reed, 100 U. S., 13.) Congress in estaljlishing courts-martial pro- vided that the Secretary of the Navy is author- ized to establish ' ' regulations of the Navj% ' ' with the approval of the President (12 Stat., 565; R. S., sec. 1547). Pursuant to this authority, "Regulations for the Administration of La,w and Justice" were issued on the 15th of April, 1870. It has been held that such regulations have the force of law. (Gratiot v. U. S., 4 How., 80; Ex parte Reed, 100 U. S., 22.) Thus the legislative power is not exercised in detail, but a court is established in pursuance of the power conferred upon Congress and the Secre- tary of the Navy is clothed with the power of making regulations to control the court. This is one of the many instances in which it is essential for the operations of a great govern- ment that matters of detail be intrusted by the iegislati\'e department to executive officers for the piu-pose of giAing effect to legislative acts. (21 Op. Atty. Gen., 430, 441.) Manual for the Govemtnent of Naval Prisons. — Articles 81 of the Manual for the government of Naval Prisons, issued by the Judge Advocate General of the Navy with the approval of the Secretary of the Navy, pur- suant to authority contained in article 901, Navy Regulations, 1913, and article 604, Naval Instructions, 1913, is a regulation authorized by section 1547, Revised Statutes. (24 Comp. Dec, 740, 757. Compare 25 Op. Atty. Gen., 270, 275, noted below.) Checkages of pay for lost property, — See note to section 1549, Re\'ised Statutes. Refund of enlistment bounty on dis- charge. — Where an act of Congress "author- ized " the Secretary of the Navy to furnish as a bounty to apprentices enlisting in the Navy when first received on board of a training ship an outfit of clothing not to exceed in value the sum of $45 (act Mar. 1, 1889, 25 Stat., 781), the language, although permissive in form, is to be construed as imposing upon the Secretary of the Na\y an imperative oliligation and not merely discretionary power. Congress un- doubtedly did not intend that the Secretary of the Na^y should have such discretionary power with respect to furnishing the bounty authorized by the act as would enable him to furnish it in one case and in another case decline to furnish it. Neither does the law contain any language from which the infer- ence could be drawn that apprentices dis- charged within one year after date of enlist- ment shall refund any part of the clothing outfit previously furnished them as a bounty. Accordingly, held that r^ulationa issued by the Secretary of the Navy, July 1, 1901, are inconsistent with law and void in so far as they require a refund of the bounty or any portion of it in case an apprentice is discharged within one year after his enlistment for disability not incm-red in the line of duty. (25 Op. Atty. Gen., 270; see also 11 Comp. Dec, 193. Note.— Refund of enlistment bounty in case of dis- charge was afterwards specifically provided for by statute; see act June 29, 1906, 34 Stat., 556; and Mar. 2, 1907, 34 Stat., 1176.) Duties of disbursing ofl3.cers. — Regula- tions made by the Commissioners of the Na\y in 1817, with the consent of the Secretary of the Navy and approved by the President of the United States, were binding upon pursers in the Navy, who were thereby required to make disbursements in accordance therewith, without other compensation than their regular pay as purser, unless when the disbursements were made there was an agreement or under- standing between them and the Secretary of the Navy or other officer competent to make such an agreement that they should ^ecei^-e compensation therefor in addition to their regular and fixed pay as purser. (U. S. v. Fitzgerald, 25 Fed. Cas. No. 15107; see also notes to sees. 161, 285, and 419, R. S.) Disposition of effects of deceased per- sons.— The Navy Regulations on the subject of payments to administrators and under wills are to be construed as binding only upon the officers and seamen of the Navy; they are not applicable to nor binding upon the account- ing officers of the Treasury Department in the settlement of na^-al accounts, and it was not intended that they should control those offi- cers. (16 Op. Atty. Gen., 494, 498.) The character of all the regulations in ques- tion indicates that they were not intended to affect any persons except those subject to the orders of the Secretary of the Navy. Unless they are thus construed, it would seem that a power to legislate was assiuned independently of the Federal and State law. For the pur- pose of protecting the rights of heirs and rela- tives of deceased seamen, the regulations of the Navy may well require that if the disburs- ing officer pays the money to an administrator he shall estal^lish facts additional to those which he would ordinarilv be required to do. (16 Op. Atty. Gen., 494, 496.) See below, ""^Ti ether regulations are bind- ing upon accounting officers of the Treasury." "Whether regulations are binding upon accounting officers of the Treasury. — The Navy Regulations are published by the Secre- tary of the Navy "for the government of all persons attached to the naval service." This statement accurately indicates the objects and the limits of the naval regulations, which are for the government of persons attached to the naval 8er\dce in the conduct of their several duties, and the -sdolation of which would sub- ject such persons to official rebuke. It would be going too far to hold that because the Sec- retary of the Navy, with the approval of the President, has a quasi legislative power in pre- scribing the mode in which the subordinates of the naval department should perform their 786 The Navy. Pt. 2. REVISED STATUTES. Sec. 1549. duties, and the rules by which they should be governed, he could also prescribe a rule which would control the action of the accounting offi- cers upon the same subject. (16 Op. Atty. Gen., 494, 495.) While in general terms it is often said that the Army and Navy regulations have the force and effect of law, this can only be properly so where we are dealixig with a person or suljject matter over which the Secretary has official control (citing Gratiot v. U. S., 4 How., 117). Nor can it be said that the fact that Congress has adopted the regulations gives them the force of law in the general sense. It gives them the force of law only so far as they assume to control those to whom the regulations were applicable. Were it otherwise, it would be necessary to hold that, inasmuch as the Secretary with the authority of the President has a right to alter these regulations. Congress has parted with its legislative power so far as the Na\y is concerned, and has conferred it upon the Secretary of the Na\^. That which it has conferred upon the Secretary of the Navy is not any portion of its general power of legislation, but only the right to make appropriate regulations for the per- formance of their duties by those whom Con- gress has placed under his official control. (16 Op. Atty. Gen., 494, 497.) The decisions of the Comptroller of the Treas- ury, declaring invalid article 3991, Na\-y Regu- lations 1913, limiting the responsibility of pay officers of shore stations for errors in pay rolls, are not conclusive upon the Navy Depart- ment; said regulation is valid, at least to the extent of protecting a pay officer who, in good faith, pays items that on the face of the roll are apparently legal expenditures. The regula- tion in question, as a valid order of the head of an executive department, has binding force upon the accounting officers of the Govern- ment. (30 Op. Atty. Gen., 376.) See above, "Disposition of effects of de- ceased persons." Regiilations not approved by the Pres- ident. — Regulations issued by the Secretary of the Navy may safely be held invalid where it does not appear that they ever received the approval of the President, as required by sec- tion 1.547, Revised Statutes, for ail regulations issued since July 14, 1862. Such approval, in terms prescribed by the law, is manifestly es- sential to give validity to regulations as having the force of law. (25 Op. Atty. Gen., 270, 275; but see sec. 161, R. S., and note thereto; and compare 24 Comp. Dec, 740,757, noted above.) Under Revised Statutes, section 1547, the orders, regulations, and instructions issued by the Secretary of the Navy are presumed to be issued with the approval of the President, and this presumption extends to an order requiring employees to render service on Satmday after- noons with no other compensation than such as shall be due by reason of the extension of the hoiu-s of service. (Adams t'. U. S., 42 Ct. Cls., 192.) Regulations enter into contract of navy- yard employees. — The work in navy yards and naval stations is under the control and direction of the head of the Navy Department, and the employment and pay of per diem em- ployees at such yards and stations, paid from lump-sum appropriations, are also under the direction and control of the head of the de- partment. Under these circumstances^ regu- lations are important and necessary instru- ments in the administration of the duties in- volved in these cases, and the regulation often operates as a contract or enters into the con- tracts of employment. This is the effect of such regulations where they do not contravene some law. (21 Comp. Dec, 337, holding that per diem employees of the Government at navy yards and stations which are not in the United States are entitled to be paid on holi- days as provided by Na\'y Regulations.) Effect of regulations upon interpre- tation of later statutes. — The naval regu- lations are recognized by Congress in section 1547, Revised Statutes, and those in force when a particular statute was passed may properly be considered in construing it, because the pre- sumption is that Congress enacted the law with the knowledge of and in the light of such regu- lations. (19 Op. Atty. Gen., 589, 591.) Regiilations superseded by subsequent statutes. — The Navy Regulations of 1818, prescribing the official duties of pursers and Na\-y agents, were repealed by the act of Au- gust 26, 1842 (5 Stat., 535), requiring purchases of supplies for the use of the Navy to be made with the public moneys appropriated for the purpose, under such directions and regulations as the executive may prescribe, the effect of which law was to require new "directions and regulations" in the place of the old regidations. (Strongi-. U. S., 6Wall.,788.) Inasmuch as Congress has authorized the successive heads of the Na\^ Department to govern the Naval Academy by regulations, and has interfered therewith only, so to say, desul- torily, the rule of statutory construction, which forbids any disturbance of previously existing statutory or common law hj ^ ^^w statute fur- ther than is necessary to its reasonable opera- tion, must 1)6 applied so as to prevent any un- necessary disturbance of previously existing regulations by a subsequent statute. (15 Op. Atty. Gen., 637.) Sec. 1548. [Copy to be furnished to officers.] The Secretary of the Navy shall cause each commissioned or warrant officer of the Navy, on his entry into the service, to be furnished with a copy of the regulations and general orders of the Navy Department then in force, and thereafter wath a copy of aU such as may be issued.— (17 July, 1862, c. 204, s. 19, v. 12, p. 610.) Sec. 1549. [Regulations of supplies.] It shall be the duty of the President to make, subject to the provisions of law concerning supplies, such regulations for 787 Sec. 1551. Pi. 2. REVISED STATUTES. The Navy. tho ])urchjise, preservation, and disposition of all articles, stores, and supplies for persons in the Navy, as may be necessary for the safe and economical adminis- tration of that branch of the pubhc service. — (26 Aug., 1842, c. 206, s. 2, v. 5, p. 535; 3 Mar., 1847, c. 48, s. 1, v. 9, p. 171.) Exchanfre of worn-out t>7)e\vriting and com- puting machines for the naval establish- ment as part of the purchase price of new ones, was authorized bv act of August 22, 1912 (37 Stat., 346). Loan of medical and other equipment to the American Red Cross for instruction and practice, for the purpose of rendering aid to the Army and Navy in war, was author- ized by resolution of MavS^ 1914 (38 Stat., 771), amended by resolution of May 18, 1916 (39 Stat., 164). Settlement of property accounts is provided for by act of March 29, 1894 (28 Stat., 47); with reference to jurisdiction of Comptroller of the Treasury over property accounts, see note to section 236, Revised Statutes, un- der "III. Limitations upon jurisdiction." Ship's stores in the Navy may charge profit on sales, such profit to be expended for the amusement, comfort, and contentment of the enlisted force. (Act June 24, 1910, 36 Stat., 619.) See note to sections 161, 355, 418, 1540, and 1541, Revised Statutes, concerning purchase, sale, exchange, etc., of property belonging to the Navy. Checkages of pay for lost property. — If a regulation shall be made providing that the %villful or negligent damage or destruction of public property by persons in the Navy be charged against the pay of the individual re- sponsible for such damage or destruction, as- certained by a board of survey or other fair method, then such amount or amounts may law- fully be so charged. (15 Comp. Dec, 491.) In an opinion of the Judge Advocate General, December 8, 1909 (file 3980-452:2), it was con- cluded that, in the absence of statutory au- thority, there is no warrant of law for checking the pay of an officer or enlisted man for loss or damage to Government property, notmth- standing the contrary decision of the Comp- troller of the Treasury, above noted. Pursuant to said opinion, article 1260 (5), published in Changes in Navy Regulations Circular No. 4 of June 25, 1909, was revoked by the President upon recommendation of the Secretaiy of the Navy. (Naval Dig., 1916, p. 447, citing S. & A. ind., May 10, 1916, No. 186-362 and file 26834- 594; see also Smith v. Jackson, 241 Fed. Rep., 747, 246 U. S., 388 as to jurisdiction of account- ing officers.) There is no authority of law under which an officer of the Navy, who is not required to ren- der return for property in his possession, can be checked for the value of missing property. In this connection attention is in\'ited to the fact that there is no legal obstacle in the way of such officer's depositing to the credit of the United States, if he is willing to do so, a sum sufficient to cover the cost of missing property for which he has been held responsible. (Naval Dig., 1916, p. 447, citing file 18140-35, July 25, 1916.) There is no authority of law to check the pay of an officer or enlisted man for the loss of a library book (file 2657-04, Apr. 5, 1904; 3980- 452:2, Dec. 8, 1909); or for loss or damage to public property (14 J. A. G., 230); or for a boat taken ^\ithout permission and lost (file 170-04, Jan 21, 1904); or for careless enlistments by re- cruiting officers of the Navy (file 5942-34); or for windows broken through carelessness (file 18140-16, Feb. 27, 1912). (Naval Dig., 1916 p. 448.) The practice of having enlisted men attached to a receiving ship checked in their pay ac- counts for the loss or destruction of Govern- ment property, upon their request, in lieu of being punished for the offense involved therein, is wholly 'unauthorized by law. (Naval Dig., 1916, p. 448, citing file 3773-149, Dec. 26, 1912.) Sec. 1550. [Appointment of persons to disburse money on foreign stations.] No person shall be employed or continued abroad, to receive and pay money for the use of the naval service on foreign stations, whether under contract or otherwise, who has not been, or shall not be, appointed by and with the advice and consent of the Senate. — (17 June, 1844, c. 107, s. 4, v. 5, p. 703.) The senior officer present may make an acting appointment of any fit person to perform the duties of paymaster or assistant pay- master on foreign stations when such office becomes vacant by death or otherwise, until another paymaster or assistant pay- master shall report for duty. (Sees. 1381 and 1564, R. S.) Sec. 1551. [Insane of the Navy.] The Secretary of the Navy may cause persons in the naval service or Marine Corps, who become insane while in the service, to be placed in such hospital for the insane as, in his opinion, will be most convenient and best calculated to promise a restoration of reason. And he may pay to any such hospital, other than the Government Hospital for the Insane in the District of Columbia, the pay which may irom time to time be due to such insane person, and he may, in addition thereto, pay to such 788 The Navy. Pt.2. REVISED STATUTES. Sec. 1553. institution, from the annual appropriation for the naval service, under the head of contingent enumerated, any deficiency of a reasonable expense, not exceed- ing one hundred dollars per annum. — (3 Aug., 1848, c. 121, s. 13, v. 9, p. 272. 13, p. 348.) 2 July, 1864, c. 210, s. 2, v Amendment to this section was made by act of July 1, 1916, section 1 (39 Stat., 309), which provided that "after the pas^ge of this act the Government Hospital for the Insane shall be known and designated as Saint Elizabeths Hospital." For general provisions relating to the Govern- ment Hospital for the Insane, see sections 4838-4858, Revised Statutes. With reference to habeas corpus proceedings in cases of persons in the naval service com- mitted to the Government Hospital for the Insane, see note to section 761, Revised Statutes, under "Appeal from decision of court or judge granting writ," and "Arrest of petitioner after discharge." Allotments of pay. — A warrant officer of the Navy confined in the Government Hospital for the Insane is not authorized by law or regu- lations to register an allotment, even though mentally competent to take such action, for the reason that he is ashore within the United States (Navy Regs., 1909, art. 1094); the wife of such an officer desiring to secure a portion of his pay should have a guardian or committee appointed to take charge of his affairs. (File 8528-327:1; see also 8528-111; compare Navy Regs., 1913, art. 4472.) The Secretary of the Navy has no power to increase a naval officer's allotment of pay in favor of his wife Avithout his consent, and if the Secretary makes such increase Avithout his consent, he mav recover the illesal excess. (Melville v. U. S., 23 Ct. Cls., 74.) ' Where an enlisted man of the naval service is a patient at the Government Hospital for the Insane, and it has been certified by the naval medical officer at, and the superintendent of, said hospital that he is mentally competent to receive and dispose of his pay, he is legally competent to make an allotment or assignment of wages in accordance with Navy Regulations, 1913, articles 4471 and 4472. (File 10060-67, Aug. 18, 1915; see also 8528-340; 1802-04; 8528- 399, Oct. 29, 1913; C. M. O. 29, 1915.) See also section 1430, Revised Statutes, and note thereto. Corafort and welfare of patients. — Where certain articles are essential for the comfort and welfare of general court-martial prisoners con- fined in the Government Hospital for the In- sane, the naval medical officer is authorized to forward a certificate, setting forth the articles desired, to the commandant of the navy yard, Washington, D. C.; the commandant has authority to approve the purchase of such articles, not to exceed .|3 per month, the amount excepted by the court-martial sentence for "necessary prison expenses"; if there is no money due such prisoners, these articles will be charged to ' ' Pay, Miscellaneous, ' ' in accordance with the act of February 16, 1909, section 3 (35 Stat., 622). Naval patients not under- going punishment, when competent to sign pay receipts for such articles, will be allowed to draw the same from pay due, and the command- ant is authorized to approve such purchases upon certification of the naval medical officer that such patients are competent to sign pay receipts for nominal amounts necessary to the comfort and welfare of such patients. There is no authority whereby patients not undergoing sentence, and who are legally incompetent to sign such pay receipts, can draw such sums un- less a guardian or committee has been appoint- ed. (C. M. O. 22-1915, citing file 10060-61, June 3, 1915; see also 8528-410, June 4, 1914; 10060-14, Jan. 30, 1911; 10060-46, June 12, 1914.) Payment of service pensions due in- mates. — Allowances under sections 4756 and 4757, Revised Statutes, which accrue to in- mates of Saint Elizabeths Hospital, should be paid to the superintendent of the hospital, not- withstanding such inmates are represented by a legal guarclian or committee. (31 Op. Atty. Gen., 354.) Jurisdiction of civil authorities. — The only provision for a judicial inquiry into the mental status of any persons, previous to their admission to Saint Elizabeths Hospital, is in the case of indigent persons residing in the District of Columbia. An enlisted man who was discharged from the Army because of in- sanity was properly admitted to said hospital upon the order of the Secretary of the Treasury as an insane patient of the Bureau of War Risk Insurance, and as he does not come within the class of indigent persons residing in the District of Columbia, no judicial inquiry prior to his admission is necessary. (31 Op. Atty. Gen., 431.) Sec. 1552. [Coal depots. Repealed.] This section provided as follows: "Sec. 1552. The Secretary of the Navy may establish, at such places as he may deem neces- sary, suitable depots of coal, and other fuel, for the supply of steamships of war." — (31 Aug., 1842, c. 279, s. 7, v. 5, p. 577.) It was repealed by act of March 4, 1913 (37 Stat., 898). Sec. 1653. [Enticing persons to desert. Repealed.] This section provided as follows: "Sec. 1553. Any person who shall entice or procure, or attempt to entice or procure, any sea- man or other person in the naval service of the United States, or who has been recruited for such service, to desert therefrom, or who shall in anywise aid or assist any such searnan or other person in deserting, or in attempting to desert from such service, or who shall harbor, conceal, protect, or in aiiywise assist any such seaman or other person who may have deserted from said service, knowing him to have deserted 789 Sec. 1555. Pt.2. REVISED STATUTES. The Navy. therefrom, or who shall refuse to give up and deliver such person on the demand of an officer authorized to receive him, shall be punished by imprisonment for not less than six months nor more than three years, and by fine of not more than two thousand dollars, to be enforced in any court of the United States haWng jurisdic- tion."— (1 July, 18G4, c. 201, y. 13, p. 343.) It ■wa^ repealed by the Criminal Code, act of March 4, 1909, section 341 (35 Stat., 1153), and was reenacted, mth amendments, by sec- tion 42 of the same act (35 Stat., 1097), which also reenacted, with amendments, section 5455, Revised Statutes. Punishment by court-martial of per- sons in the naval service who receive or en- tertain deserters is pro\'ided for by section 1624, RcAdsed Statutes, article 8, paragraph 22. Attorney not guilty because of advice given client. — An attorney employed by the father of a soldier, 16 years old, who had en- listed without the father's consent, to obtain his release on the ground of nonage, by advis- ing the soldier, who was then a deserter, to re- main away h-om the authorities until notified, held, not to have "harbored, concealed or assisted" the deserter within Criminal Code, section 42, which requires, to constitute the offense, some positive, physical act, done with knowledge and intent to aid in the wrongful purpose of the deserter. (Firpo v. U. S., 261 Fed. Rep., 850.) To "conceal," as used in Criminal Code, section 42, providing for punishment of anyone who shall harbor, conceal, protect, or assist any soldier who has deserted from service, means to hide, secrete, or keep out of sight. (Firpo v. U. S., 261 Fed. Rep., 850.) To "harbor," as used in Criminal Code, section 42, providing for punishment of anyone who shall harbor, conceal, protect, or assist any soldier who has deserted from ser\dce, means to lodge, to care for, after secreting the deserter. (Firpo V. U. S., 261 Fed. Rep., 850.) "Where enlistment not completed. — Under the act of Congress of March 2, 1855, section 11 (10 Stat., 628), making it an offense to entice a seaman who has enlisted in the naval service of the United States to desert there- from, held, that one who had previously been in the Navy, and whose term of service had expired, and who came to the United States naval rendezvous in Boston to reenlist, and passed through all the necessary steps there, was exarnined and passed by the surgeon and his descriptive and transcript lists made out and given to the commanding officer of the rendezvous, and who took the oath required by act of Congress, signed the Navj^ shipping arti- cles which stated, among other things, his "term of enUstment" and "date of enlistment," and received orders to go on board the receiving ship and for advance pay and bounty, and everything necessary to his enlistment, so far as the officer in charge of recruiting at the naval rendezvous was concerned, was completely performed according to the instructions of the Navy Department; and who went to the re- ceiving ship, but when he reached it was so intoxicated that the commanding officer, in pursuance of instructions issued by the Na\'y Department, declined to receive him until he became sober; and who then left the ship, say- ing that he would report in the morning; arid before the morning was induced by the de- fendant not to return to the vessel but to enlist in the Army, was not enlisted within the mean- ing of the aforesaid act, he not having been examined by the surgeon on the receiving ship or accepted there, and not naving his name entered on the books of the ship, and it appear- ing that no recruit coming from any naval rendezvous and who had passed through all the forms there was ever allowed an advance or any pay, or had his name recorded on the paymaster's books, until he had passed the surgeon on board the receiving ship. (U. S. V. Thompson, 28 Fed. Cas. No. 16491; see also Tyler -y. Pomeroy, 8 Allen (Mass.) 480; and see note to sec. 1418, R. S., under "When enlist- ment complete.") Desertion in consequence of induce- ments made prior to enlistraent. — Where the prisoner, in order to induce one H. to enlist, made representations to him as to the means and facilities of deserting, and after he had enlisted received the whole of his bounty money, and at the times when he made such representations and received the money he believed they would be likely to cause H. to desert, and they did cause him to desert, the prisoner may be deemed to have procured or enticed H. to desert within the meaning of the statute of_1812, chapter 14, section 17 (2 Stat., 673). It is not necessary, in order to warrant a conxdction, that the prisoner should have wished or intended that H. should desert. (U. S. •;; Clark, 25 Fed. Cas. No. 14808.) Sec. 1554. [Captured flags.] The Secretary of the Navy shall cause to be collectecl and transmitted to him, at the seat of Government of the United States, all such flags, standards, and colors as shall have been or may hereafter be taken by the Navy from enemies. — (18 April, 1814, c. 78, s. 1, v. 3, p. 133.) upon the same original enactment as this section. Substantially this same provision is contained in section 428, Revised Statutes, based Sec. 1565. [Preservation of, in some public place.] All flags, standards, and colors of the description mentioned in the foregoing section, which are now in the possession of the Navy Department, or may hereafter be transmitted to it, shall be delivered to the President, for the purpose of being, under his direction, preserved and displayed in such public place as he may deem proper. — (18 April, 1814, c. 78, s. 1, v. 3, p. 133.) 790 CHAPTER EIGHT. PAY, EMOLUMENTS, AND ALLOWANCES. Sec. 1556. Pay of commissioned and warrant of- ficers, midshipmen, mates, secretaries and clerks, nurses, and Naval Reserve Force. 1557. Furlough pay. 1558. Allowances. 1559. Volunteer ser\'ice. 1560. Commencement of pay; original entry. 1561. Commencement of pay of promoted officers. 1562. In cases of delayed examination. 1563. Advances to persons on distant stations. 1564. Persons acting as pavTnaster. 1565. Chiefs of bureau. 1566. Mileage and traveling expenses. 1567. Officers serving as storekeepers on for- eign stations. 1568. Civilians, storekeepers on foreign sta- tions. 1569. Pay of enlisted men. 1570. Additional pay for serving as firemen. 1571. Sea service. 1572. Detention beyond term of enlistment. 1573. Honorable discharge gratuity and con- tinuous ser%-ice pay. Sec. 1574. Crews of wrecked or lost vessels. 1575. Crews of vessels taken by an enemy. 1576. Assignment of wages. 1577. Rations of midshipmen. 1578. Rations of other officers. 1579. When rations not allowed. 1580. Navy ration, constituents of. 1581. Substitutions in rations, and extra al- lowance for night watches. 1582. Short allowance. 1583. Rations stopped for the sick. 1584. Additional ration. 1585. Ration commutation. 1586. Medicines and medical attendance. 1587. Funeral expenses. 1588. Pay of retired officers. 1589. Retired rear admirals. 1590. Third assistant engineers. 1591. Pay not increased by promotion. 1592. Pay on active duty. 1593. Officers retired on furlough pay. 1594. Transfer from furlough to retired pay list. 1595. Rations. [See Notes at End of Section 1556 for Laws Amendatory of that Section, in Force March 4, 1921, Relating to the Pay of Commissioned and Warrant Officers, Mid- shipmen, Mates, Secretaries and Clerks, Nurses, and Naval Reserve Force; Additional Pay for Special Duty, Etc.] Sec. 1556. [Pay of commissioned and warrant officers, midshipmen, mates, secretaries and clerks, nurses, and Naval Reserve Force.] The commissioned officers and warrant officers on tlie active list of the Navy of the United States, and the petty officers, seamen, ordinary seamen, firemen, coal-heavers, and employes in the Navy, shall be entitled to receive annual pay at the rates herein stated after their respective designations: — (20 Feb., 1874, c. 35, v. 18, p. 17.) [2] The Admiral, thirteen thousand doUars. — (15 July, 1870, c. 295, s. 3, V. 16, p. 330.) [3] The Vice-Admiral, when at sea, nine thousand doUars; on shore duty, eight thousand dollars; on leave, or waiting orders, six thousand dollars. [4] Rear-admirals, when at sea, six thousand dollars; on shore duty, five thousand doUars; on leave, or waiting orders, four thousand doUars. [5] Commodores, when at sea, five thousand doUars; on shore duty, four thousand doUars; on leave, or waiting orders, three thousand doUars, [6] Captains, when at sea, four thousand five hundred doUars; on shore duty, three thousand five hundred doUars; on leave, or waiting orders, two thousand eight hundred doUars. [7] Commanders, when at sea, three thousand five hundred doUars; on shore duty, tliree thousand doUars; on leave, or waiting orders, two tliou- sand tliree himdred doUars. 791 Sec. 1556. Ft. 2. REVISED STATUTES. The Navy. [S] Lioutenant-commandors, (lurinw the first four years after date of com- mission, when at sea, two thousand eight hundred dollars; on shore duty, two thousand four hundred dollars; on leave, or waiting orders, two thou- sand dollars; after four years from such date, when at sea, three thousand dollars; on shore duty, two thousand six hundred dollars; on leave, or waiting orders, two thousand two hundred dollars. [9] Lieutenants, during the first five years after date of commission, when at sea, two thousand four hundred dollars; on shore duty, two thousand dollars; on leave, or waiting orders, one thousand six hundred dollars; after five years from such date, when at sea, two thousand six hundred dollars; on shore duty, two thousand two hundred dollars; on leave, or waiting orders, one thousand eight hundred dollars. [10] Masters, during the first five years after date of commission, when at sea, one thousand eight hundred dollars; on shore duty, one thousand five hundred dollars; on leave, or waiting orders, one thousand two hundred dollars; after, five years from such date, when at sea, two thousand dollars; on shore duty, one thousand seven hundred dollars; on leave, or waiting orders, one thousand four hundred dollars. [11] Ensigns, during the first five years after date of commission, when at sea, one thousand two hundred dollars; on shore duty, one thousand dollars; on leave, or waiting orders, eight hundred dollars; after five years from such date, when at sea, one thousand four hundred dollars; on shore duty, one thousand two hundred dollars; on leave, or waiting orders, one thousand dollars. [12] IVIidshipmen, after graduation, when at sea, one thousand dollars; on shore duty, eight hundred dollars; on leave, or waiting orders, six hundred dollars. [13] Cadet midshipmen, five hundred dollars. — (16 July, 1862, c. 183, s. 15, V. 12, p. 586. 15 July, 1870, c. 295, s. 12, v. 16, p. 334.) [14] Mates, when at sea, nine hundred dollars; on shore duty, seven hun- di'ed dollars; on leave, or waiting orders, five hundred dollars. — (15 July, 1870, c. 295, s. 3, v. 16, p. 330.) [15] Fleet-surgeons, fleet-paymasters, and fleet-engineers, lour thousand four hundred dollars.— (15 July, 1870, c. 295, s. 3, v. 16, p. 330.) [16] Medical directors, medical inspectors, pay directors, and pay inspect- ors, and chief engineer having the same rank as pay director and pay inspector, when on duty at sea, four thousand four hundred dollars. When not at sea, the same as surgeons and paymasters, respectively. — (15 July, 1870, c. 295, s. 3, v. 16, p. 331. 3 Mar., 1871, c. 117, ss. 5, 6, v." 16, pp. 535, 536. 3 Mar., 1873, c. 230, s. 1, v. 17, p. 555.) [17] Surgeons, paymasters, and chief engineers who have the same rank with paymasters, during the first five years after date of commission, when at sea, two thousand eight hundred dollars; on shore duty, two thousand four hundred dollars; on leave, or waiting orders, two thousand dollars; dur- ing the second five years after such date, when at sea, three thousand two hundred dollars; on shore duty, two thousand eight hundred dollars; on leave, or waiting orders, two thousand four hundred dollars; during the third five years after such date, when at sea, three thousand five hundred 792 The Navy. Pt. 2. REVISED STATUTES. Sec. 1556. dollars; on shore duty, tlu'ee thousand two hundred dollars; on leave, or waiting orders, two thousand six hundred dollars; during the fourth five years after such date, when at sea, three thousand seven hundred dollars; on shore duty, thi-ee thousand six hundred dollars; on leave, or waiting orders, two thousand eight hundred dollars; after twenty years from such date, when at sea, four thousand two hundred dollars; on shore duty, four thousand dollars; on leave, or waiting orders, three thousand dollars. — (15 July, 1870, c. 295, s. 3, V. 16, p. 330.) [IS] Passed assistant surgeons, passed assistant paymasters, and first assistant engineers, during the first five years after date of appointment, w^hen at sea, two thousand dollars; on shore duty, one thousand eight hundred dollars; on leave, or waiting orders, one thousand five hundred dollars; after five years from such date, when at sea, two thousand two hundred dollars; on shore duty, two thousand dollars; on leave, or waiting orders, one thousand seven hundred dollars. [19] Assistant surgeons, assistant paymasters, and second assistant engi- neers, during the first five years after date of appointment, when at sea, one thousand seven hundred dollars; on shore duty, one thousand four hundred dollars; on leave, or waiting orders, one thousand dollars; after five years from such date, when at sea, one thousand nine hundred dollars; on shore duty, one thousand six hundred dollars; on leave, or waiting orders, one thou- sand two hundred dollars. [20] Assistant surgeons of three years' service, who have been found qual- ified for promotion by a medical board of examiners, the pay of passed assistant surgeons. — (3 Mar., 1871, c. 117, s. 5, v. 16, p. 535.) [21] Naval constructors, during the first five years after date of appoint- ment, when on duty, three thousand two hundred dollars; on leave, or waiting orders, two thousand two hundred dollars; diu-ing the second five years after such date, when on duty, three thousand four hundred dollars; on leave, or waiting orders, two thousand four hundred dollars; during the third five years after such date, when on duty, three thousand seven hundred dollars; on leave, or waiting orders, two thousand seven hundred dollars; during the fourth five years after such date, when on duty, four thousand dollars; on leave, or waiting orders, three thousand dollars; after twenty years from such date, when on duty, four thousand two hundred dollars; on leave, or waiting orders, three thousand two hundred dollars.— (15 July, 1870, c. 295, s. 3, v. 16, p. 331.) [22] Assistant naval constructors, during the first four years after date of appointment, w^hen on duty, two thousand dollars; on leave, or waiting orders, one thousand five hundred dollars; during the second four years after such date, when on duty, two thousand two hundred dollars; on leave, or waiting orders, one thousand seven hundred dollars; after eight years from such date, when on duty, two thousand six hundred dollars; on leave, or waiting orders, one thousand nine hundred dollars. [23] Chaplains, during the first five years after date of commission, when at sea, two thousand five hundred dollars; on shore duty, two thousand dollars; on leave, or waiting orders, one thousand six hundred dollars; after five years from such date, when at sea, two thousand eight hundred dollars; on shore duty, 793 Sec. 1556. PL 2. REVISED STATUTES. The Navy. two thousand tliree hundred dollars; on leave, or waiting orders, one thousand nine hundred dollars. [24] Professors of mathematics and civil engineers, during the first five years after date of appointment, when on duty, two thousand four hundred dollars; on leave, or waiting orders, one thousand five hundred dollars; during the second five years after such date, when on duty, two thousand seven hundred dollars; on leave, or waiting orders, one thousand eight hundred dollare; during the third five years after such date, when on duty, three thousand dollars; on leave, or waiting orders, two thousand one hundred dollars; after fifteen years from such date, when on duty, three thousand five himdred dollare; on leave, or waiting orders, two thousand six hundred dollars. [25] Boatswains, gunners, carpenters, and sail-makers, during the first three years after date of appointment, when at sea, one thousand two hundred dollars; on shore duty, nine hundred dollars; on leave, or waiting orders, seven hundred dollars; during the second three years after such date, when at sea, one thousand three hundred dollars; on shore duty, one thousand dollars; on leave, or waiting orders, eight hundred dollars; during the third three years after such date, when at sea, one thousand four hundred dollars; on shore duty, one thousand three hundred dollars; on leave, or waiting orders, nine hundred dollars; during the fourth three years after such date, when at sea, one thousand six hundred dollars; on shore duty, one thousand three himdred dollars; on leave, or waiting orders, one thousand dollars; after twelve years from such date, when at sea, one thousand eight hundred dollars; on shore duty, one thousand six hundred dollars; on leave, or waiting orders, one thou- sand two hundred dollars.— (15 July, 1870, c. 295, s. 3, v. 16, p. 332.) [26] Secretaries to the Admiral and the Vice-Admiral, each two thousand five hundred dollars. Secretaries to commanders of squadrons, two thousand dollars. Secretary of the Naval Academy, one thousand eight himdred dollars. — (15 July, 1870, c. 295, s. 3, v. 16, p. 332.) [27] Clerks to commanders of squadrons and commandei's of vessels, seven hundred and fifty dollars.— (15 July, 1870, c. 295, s. 3, v. 16, p. 332.) [28] First clerks to commandants of navy-yards, one thousand five hun- dred dollars. Second clerks to commandants of navy-yards, one thousand two hundred dollars. Clerk to commandant at navy-yard at IVIare Island, one thousand eight hundred dollars. Clerks to commandants of naval stations, one thousand five hundred dollars.- (15 July, 1870, c. 295, s. 3, v. 16, p. 332.) [29] Clerks to paymasters at navy-yards, Boston, New York, Pliiladelphia, and Washington, one thousand six hundred dollars; Battery, Norfolk, and Pen- sacola, one thousand four hundred dollai's; Mare Island, one thousand eight hundred dollars. Clerks to paymasters, at other stations, one thousand three hundred dollars.— (15 July, 1870, c. 295, s. 3, v. 16, p. 332.) [30] Clerks to paymasters of receiving ships at Boston, New York, and Philadelphia, one thousand six hundred dollars; at IVIare Island, one thousand 794 The Navy. Pt.2. REVISED STATUTES. Sec. 1556. eight hundred dollars; of other receiving ships, one thousand three hundred dollars.— (15 July, 1870, c. 295, v. 16, p. 332.) [31] Clerks to paymasters on vessels of the first rate, one thousand three hundred dollars; on vessels of the second rate, one thousand one hundred dollars; on vessels of the tliird rate, and supply-vessels and store-ships, one thousand dollars. — (15 July, 1870, c. 295, s. 3, v. 16, p. 332.) [32] Clerks to fleet paymasters, one thousand one hundred dollars. — (15 July, 1870, c. 295, v. 16, p. 332.) [33] Clerks to paymasters at the Naval Academy and Naval Asylum, one thousand three hundred dollars. — (15 July, 1870, c. 295, v. 16, p. 332.) [34] Clerks to inspectors in charge of provisions and clothing, at navy- yards, Boston, New York, Philadelphia, and Washington, one thousand six hundred dollars; to inspectors in like charge at other inspections, one thousand tliree himdred dollars.— (16 July, 1862, c. 183, s. 15, v. 12, p. 586.) [35] Cadet engineers: before final academic examination, five hundred dollars ; After final academic examination, and imtil warranted as assistant en- gineers, when on duty at sea, one thousand dollars; on shore duty, eight hundred dollars; on leave, or waiting orders, six hundred dollars. — (4 July, 1864, c. 252, s. 5, v. 13, p. 393. 3 Mar., 1865, c. 124, s. 1, v. 13, p. 539. 15 July, 1870, c. 295, v. 16, p. 332. 15 July, 1870, c. 295, s. 3, v. 16, p. 330.) 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20, 21, 22, 23, General rule; amendatory statutes. Admirals. Vice admirals. Rear admirals. Commodores. Captains. Commanders. Lieutenant commanders. Lieutenants. Masters (lieutenants, junior grade) and act- ing lieutenants, junior grade. Ensigns and acting ensigns. Midshipmen. Cadet midshipmen. Mates. Fleet officers. Medical directors and inspectors; pay direc- tors and inspectors. Surgeons, paymasters, and chief engineers. Passed assistant surgeons, passed assistant paymasters, and first assistant engineers. Assistant surgeons, acting assistant surgeons, assistant pa^inasters, second assistant en- gineers. Assistant surgeons qualified for promotion. Naval constructors. Assistant naA'al constructors. Chaplains and acting chaplains. 1. General rule; amendatory statutes. — As to definition of pay, allowance, pay proper, and emoluments, see notes to sections 1558 and 1569, Re\ised Statutes. The Na\'y personnel act of March 3, 1899, sec- tion 13 (30 Stat., 1007), pro\-ided that "after Jime thirtieth, eighteen hundred and ninety- 24. Professors of mathematics, ci\al engineers, and assistant ci\'il engineers. 25. Warrant officers, acting warrant officers, and commissioned warrant officers. 26. Secretaries. 27. Clerks to commanders of squadrons, etc. 28. Clerks to commandants of yards and sta- tions. 29. Clerks to paymasters of yards and stations. 30. Clerks to paymasters of recei\dng ships, etc. 31. Clerks to paymasters of vessels. 32. Clerks to fleet paymasters. 33. Clerks to paymasters at asylum and acad- emy. 34. Clerks to inspectors. 35. Cadet engineers. 36. Dental Corps; and Nurse Corps (Female). 37. Naval Reserve Force. 38. Additional pay for special duty. 39. Longe^'ity pay. 40. Absence from duty. 41. Deductions for Naval Hospital Fund. 42. Stoppage of pay, ser^^.ce with contractors. 43. Waiver of pay. 44. Allotments of pay. 45. Reduction of pay. 46. Termination of pay. 47. Pay computed on monthly basis. nine, commissioned officers of the line of the Navy and of the Medical and Pay Coips [now designated as "Supply Corps," act of July 11, 1919, 41 Stat., 147 J shall receive the same pay and allowances, except forage, as are or may be proA-ided by or in piu^uance of law for the officers of corresponding rank in the Army: 54641°— 22- -51 795 Sec, 1556. Pt.2. REVISED STATUTES. The Navy. Provided, That such officers when on shore shall receive the allowances, but fifteen per centum less pay than wlien on sea duty; but this pro- vision shall not apply to warrant officers com- missioned inuler section twelve of this act: Provided further, That when naval officers are detailed ifor shore duty beyond seas they shall receive the same pay and allowances as are or may be proAided by or in pursuance of law for officers of the Army detailed for duty in similar places: Provided further, * * * that all officers, including warrant officers, who have been or may be appointed to the NaA'y from civil life shall, on the date of appointment, be credited, for computing their pay, with fi^e years' ser\ice * * * : And provided further, Thai no ])YO\'ision of this act shall operate to reduce the j^resent pay of any commissioned officer now in the Na^y ; and in any case in which the pay of such an officer would otherwise be reduced he shall continue to receive pay according to existing law: And provided further, That nothing in this act shall operate to increase or reduce the pay of any officer now on the retired list of the Na\'y." (See notes to said act of Mar. 3, 1899, sec. 13, 30 Stat., 1007.) In the enactment of the Na\'y personnel act the intention of Congress was CAidently to put officers of the Army and NaAy on the same foot- ing with respect to their general pay, and to make the act prospective in its application to future legislation, so that if Congress should thereafter raise the general pay of Army officers as fixed by Revised Statutes, section 12G1, a like increase should apply to Navy officers. But Congress might thereafter increase the pay of Army officers for serAices in particular places and under special circumstances without there- by intending such increase to apply to naval of- ficers. (U. S. V. Thomas, 195 U. S., 418.) The naval personnel act undertook to equal- ize the pay of naAal officers with that of Army officers of equal rank, as to duties properly re- quired of a naval officer, but had no operation to proxide pay for services peculiar to the Army. (U. S. v. Crosley, 196 U. S., 327.) It was the intention of Congress, as shown by the fourth proA-iso of section 13 of the personnel act, to leave undistur]>ed the "present pay" of certain Na^-y officers who were already re- cei\T.ng higher pay than Army officers of the same rank. (U. S. v. Thomas, 195 U. S., 418, 420.) However, this pro\iso applied only to officers in the Navy at the time the act was passed, and to the pay they were then recei^'ing. (Tavlor v. U. S., 38 Ct. Cls., 155, 160.) By act of June 7, 1900 (31 Stat., 697), section 13 of the personnel act was amended so as to pro\ide "that nothing therein contained shall operate to reduce the pay which, but for the Eassage of said act, would have been received y any commissioned officer at the time of its passage or thereafter. " With reference to this amendment, it was judicially stated: "The original pro\'iso to section 13 excepted from the pur^-iew thereof ' the commissioned officers now in the Navy' whose 'present pay' was thereby reduced ; while the amendment thereto extends the exception so as to apply to the pay such of- ficers may receive thereafter in case of promo- tion to higher grades, and as to such officers it is provided that they shall continue to receive pay 'according to existing law.' The e^ddent purpose of section 13, act of March 3, 1899, was to assimilate the pay of officers of the line of the Navy and of the Medical and Pay Corps to the pay and allowances of officers of corresponding rank in the Armv, reserving, however, to such officers then in the Navy the right to continue to receiA^e Na^'y pay in case the assimilated pay under the act was less. * * * The amendment was clearly intended to apply only to com- missioned officers in the Na\'y when the origi- nal act was passed and to the pay they might receive thereafter in case of promotion." (Taylor v. U. S., 38 Ct. Cls., 155.) "That offi- cers in the Navy at the time the personnel act was passed should not be reduced m pay was an ob\-ious and just exception ; and to have such an exception preserA-ed in all grades is very obA-i- ous and just, which thereby prevents the pro- motion in grade from working a diminution of pay." (Richardson v. U. S., 38 Ct. Cls., 182, 191; Jones v. U. S., 50 Ct. Cls., 344, 354. See also Cromwell v. V. S., 42 Ct. Cls., 432; Terry v. U. S., 39 Ct. Cls., 353; Denig v. U. S., 37 Ct. Cls., 383; Littell v .U. S., 36 Ct. Cls., 22.) By act of May 13, 1908 (35 Stat., 127), it was provided that "hereafter all commissioned officers of the active list of the Navy shall re- ceive the same pay and allowances according to rank and length of serAice, ' ' with the limita- tion ( 35 Stat. , 128 ) , that ' ' the pay and allowances of chaplains in the Navy shall in no case ex- ceed that provided for lieutenant commanders, " and the sa\dng clause that ' ' nothing herein shall be construed so as to reduce the pay or allow- ances now authorized by law for any commis- sioned, warrant, or appointed officer * * * of the active or retired lists of the Na\y * * *." The said act fixed designated rates of pay for chiefs of bureaus in the NaAy Department and for the various ranks in the Navy, including midshipmen, warrant officers, and mates, as set forth below; and contained general pro^d- sions for increases in pay on account of lon- ge\dty, sea duty, and foreign ser\dce, or shore duty beyond seas, as set forth below. The said act of May 13, 1908, was construed by the Comptroller of the Treasury as preserving to officers then in the Navy the right to receive pay at the rates they were actually receiving at the date of said act, and also to receive subse- quent increases in pay as authorized by prior laws where their pay under former laws would be higher than the rates of pav provided by the act of May 13, 1908. (15 Comp. Dec, 174.) In the specific case presented, the comptroller held that a ci^dl engineer who was in the Navy on May 13, 1908, and who thereafter, on August 29, 1908, completed 15 years' ser\dce "after date of appointment," was entitled on and after the date last mentioned to receive the rate of pay provided by section 1556, Revised Statutes, for civil engineers after 15 years from date of appointment, such pay being greater in his case than the new rate of pay provided by the act of May 13, 1908, for a civil engineer of his rank and longevity. In support of this conclusion the comptroller cited the saAdng clause in the act of May 13, 1908, that nothing therein con- tained should be construed so as to reduce the pay or allowances "now authorized by law" for any commissioned, warrant, or appointed 796 The Navy. Pt.2. REVISED STATUTES. Sec. 1556. officer of the active or retired lists of the Nav\^, and stated that said expression ("'now author- ized by law") "means something more than the pay the officer or man was actually receiving at the passage of the act." In the case of Jones v. United States (50 Ct. Cls. , 344), it was judicially determined that the saving clausein the act of May 13, 1908, did not entitle a pajiuaster'a clerk to the rate of pay pro^'ided by section 1556, Revised Statutes, although higher than that provided by the act of May 13, 1908, where said paymaster's clerk was appointed subsequent to said act; and that said clause applied only to persons who were officers of the Navy on the date of the act, the court remarking in its opinion (50 Ct. Cls., 355): ; ' The reason for the proWsion against reduction in the act of 1908 is as manifest as was the pro- vision against reduction in the act of 1899 as amended in 1 900. Somewhat different language is used, but the reason is the same." The said act of May 13, 1908, was subse- quently construed by the Comptroller of the Treasury as not entitling an officer of the Naw to the rates of pay provided by section 1556, Revised Statutes, for an office which was not held by him on the date of said act but to which he was thereafter promoted, notwith- standing that he was an officer of the Navy when the act of 1908 was enacted, and that the old rate of pay was greater than that pro\'ided bv said act for the same office. (Comp. Dec Mar. 8, 1917, 193 S. and A. Memo., 4172, file 26254-2160.) In this case the comptroller spe- cifically decided that the saving clause in the act of 1908 applies to the "reduction of the pay of an officer as distinguished from that of an office," and is "limited in its effect on pay to the pay of the office which the officer held on Mayl3, 1908, date of its enactment * * * . For such office the old pay, if higher, remains the pay thereof during the period of its occu- pancy by the then incumbent of it, the taking effect of "the new rate of pay in such exceptional cases being, by means of the pro^dso, postponed until that time." By act of August 29, 1916 (39 Stat., 581\ it was pro\'ided that "hereafter all commissioned officers of the active list of the Navy shall re- ceive the same pay and allowances according to rank and length of service," omitting the limitation contained in the act of May 13, 1908, with reference to the pay of chaplains. (As to effect of this provision upon pay of chaplains, see below, under "23. Chaplains.")* This clause was followed by a pro^dso that it "shall not be construed to reduce the pay and allow- ances of commissioned warrant officers as herein authorized." Also in the same act (39 Stat., 579), it was pro\ided that "nothing contained in this act shall be construed to reduce the rank, pay, or allowances of any officer of the Navy or Marine Corps as now provided by law." By act of May 18, 1920 (41 Stat., 601), tem- porary increases in paj^ were authorized, as set forth below, for officers of the Navy with the rank of captain and below, including warrant officers, such increases to remain effectiA^e until the close of the fiscal year ending June 30, 1922, with the proviso that "the increases pi-ovided in this act shall not enter into the computation of the retired pay of officers or enlisted men who may be retired prior to July 1, 1922"; and with the further provision (sec. 14) "that nothing contained in this act shall operate to reduce the pay or allowances of any officer or enlisted man on the active or retired list: Pro- vided, That the allowances and gratuities now authorized by existing law are not changed hereby, except as otherwise specified in this act." By said act of May 18, 1920, it was further pro\'ided (sec. 13) "that a special committee, to be composed of five Members of the Senate, to be appointed by the Vice President, and five Members of the House of Representatives, to be appointed by the Speaker of the House of Rep- resentatives, shall make an investigation and report recommendations to their respective Houses not later than the first Monday in January, 1922, relative to the readjustment of the pay and allowances of the commissioned and enlisted personnel of the several services herein mentioned . ' ' 2-3. Admirals; Vice admirals. — See note to section 1362, Re\'ised Statutes. By act of May 13, 1908 (35 Stat., 127), the pay of Admiral was fixed at $13,500 per annum. The grade of "Admiral of the Na\^" ceased to exist upon the death of Admiral George Dewey on January 16, 1917. By act of August 29, 1916 (39 Stat., 558), the Chief of Naval Operations, while so ser\-iug, is given the rank and title of Admiral, with pay at the rate of $10,000 per annum. By act of May 22, 1917, section 18 (40 Stat., 89), the President is authorized to desig- nate six officers of the NaAy for the command of fleets or subdiA-isions thereof, not more than three of whom shall have the rank and pay of Admiral, and the others the rank and pay of Vice Admiral, ' 'from the date of assuming such command until relinquishing thereof," and by the same act it was pro\ided that "the pay of an Admiral shall be $10,000 and the pay of a Vice Admiral $9,000 per annum." This act super- seded pro\'isions on the same subject contained in the naval appropriation act of March 3, 1915. (38 Stat., 941, 942.) The latter act was con- strued as not investing the officers concerned with the offices of Admiral and Vice Admiral, but merely as conferring upon them, tempora- rily, the rank and pay of those offices, while they continued at the same time to be officers of the grade permanently held by them in the Navy. (21 Comp. Dec, 840.) An officer ser\dng as commander in chief of a fleet with the rank of Admiral, in accordance with the act of March 3, 1915, was held not entitled, in addition to the pay pi'ovided in said act for rear admirals so ser^^.ng, to 10 per centum increase thereof for sea duty under the act of May 13, 1908. (22 Comp. Dec, 522.) As to allowances see notes to sections 1487, 1558, and 1578, Re\'ised Statutes. Increased pay for longOAity is authorized by the act of May 13, 1908 (35 Stat., 128), only for officers "below the rank of rear admiral." 4. Rear admirals. — See notes to sections 1362 and 14G6, Re\ised Statutes. By act of May 13, 1908 (35 Stat., 127), the pay of "rear admiral, first nine," was fixed at $8,000 per annimi, and "rear admiral, second nine," at 797 Sec. 1556. Pt.^. REVISED STATUTES. The Navy. $0,000 per annum. By act of Au^st 29, 1916 (;59 Stat., 577, 578), it was pro\'ided that "here- after pay and allowances of officers in the upper half of the grade or rank of roar admiral, includ- ing the staff corps and including staff officers heretofore permanently commissioned with the rank of rear admiral, shall be that now allowed by law for the first nine rear admirals, and the pay and allowances of officers in tlio lower half of the grade or rank of rear admiral, including the staff corps, shall be that now allowed by law for the second nine rear admirals." Increased pay for longevity is authorized by the act of May 13, 1908 (35 Stat., 128), only for officers "below the rank of rear admiral." As to increased pay for special ser\'ice, see notes below under ' '38. Additional pay for spe- cial duty," and note to section 1571, Revised Statutes. As to allowances of rear admirals, see notes to sections 1487, 1558, and 1578, Re\ised Statutes. A commodore in the Navy who was commis- sioned as a rear admiral on March 3, 1899, was entitled to the sea pay of a rear admiral as fixed by section 1556, Reidsed Statutes, this being higher than the pay of a rear admiral of the lower half as fixed by the Navy personnel act of March 3, 1899, and the act of June 7, 1900, ha\dng allowed this officer to receive the old rate of pay where higher than that provided by the act of March 3, 1899. The pay of officers in service at the date of the act of March 3, 1899, and the amendatory act of June 7, 1900, might be increased by the terms of those statutes, but was not to be diminished. (Cromwell v. U. S., 42 Ct. Cls., 432. See above, under "1. General rule.") Section 7 of the Navy personnel act of March 3, 1899 (30 Stat., 1004), provided that each rear admiral embraced in the nine lower numbers of that grade shall receive the same pay and allowances as then allowed a brigadier general in the Army. Section 13 of the same act pro- Added that officers of the line of the Navy when on shore shall receive the allowances, but 15 per centum less pay than when on sea duty. Held, that this pro\T-sion as to pay on shore duty applied to rear admirals of the lower nine. (Rodgers v. U. S., 185 U. S., 83.) Section 1466, Revised Statutes, provides that all rear admirals shall rank with major generals in the Army. Section 13 of the Navy personnel act proAdded that officers of the line shall receive tne same pay as officers of corre- sponding rank in the Army; but section 7 of the same act provided that rear admirals of the lower nine shall receive the same pay as briga- dier generals in the Army. Held, that the pro- vision of section 7 was to be read as an excep- tion to the pro\ision in section 13, and accord- ingly that rear admirals of the lower nine were not entitled to the pay of major generals, the corresponding rank in the Army, but only to the pay allowed brigadier generals. (Rodgers V. U. S., 185 U. S., 83.) 5. Commodores. — See note to section 1362, Revised Statutes. The naval appropriation act of May 13, 1908 (35 Stat., 127), provided that "hereafter all commissioned officers of the active list of the NaA'y shall receive the same pay and allow- ances, according to rank and length of service, and the annual pay of each grade shall be aa follows: •* * * rear admiral, second nine, or commodore, six thousand dollars." How- ever, there were no commodores on the active list at the time of that enactment, and none have since been appointed, the grade of com- modore ha\ing been omitted from the active list by the Na\y personnel act of March 3, 1899, section 7. (30 Stat., 1005.) In certain cases officers have since been retired with the rank of commodore. (See note to sec. 1362, R. S.) As to pay of retired officers, see section 1588, RoAdsed Statutes, and note thereto. 6. Captains.— By act of May 13, 1908 (35 Stat., 127), the pay of captain was fixed at $4,000 per annum, plus 10 per cent increase thereon for each term of five years' service in the Army, NaA-y, and Marine Corps, with the limitation that "the total amount of such in- crease for length of ser\dce shall in no case exceed forty per centum on the yearly pay of the grade as pro\dded by law," and that "the annual pay of captain shall not exceed five thousand dollars per annum." As to increased pay over and above the amount of this limita- tion for special serA-ice, see note below under "38. Additional pay for special duty," and note to section 1571, Revised Statutes. By act of May 18, 1920 (41 Stat., 601), the pay of captains in the Navy was increased $600 per annum "in addition to all pay and allow- ances now allowed by law," such increase to commence January 1, 1920, and to remain effective "until the close of the fiscal year ending June 30, 1922." As to allowances of captains, see notes to sections 1487, 1558, and 1578, Revised Statutes. 7. Comznanders. — By act of May 13, 1908 (35 Stat., 127), the pay of commander was fixed at $3,500 per annum, plus 10 per cent increase thereon for each term of five years' service in the Army, NaAy, and Marine Corps, with the limitation that "the total amount of such in- crease for length of ser\dce shall in no case exceed forty per centum on the yearly pay of the grade as pro\ided by law," and that the "annual pay" of commander shall not exceed $4,500 per annum. As to increased pay over and above the amount of this limitation for special service, see note below under "38. Additional pay for special duty," and note to section 1571, Revised Statutes. By act of May 18, 1920 (41 Stat., 601), the pay of commanders in the Navy was increased $600 per annum, "in addition to all pay and allowances now allowed by law," such increase to commence January 1, 1920, and to remain effective "until the close of the fiscal year ending June 30, 1922." As to allowances of commanders, see notes to sections 1487, 1558, and 1578, Revised Statutes. 8. Lieutenant commanders. — By act of May 13, 1908 (35 Stat., 127), the pay of lieu- tenant commanders was fixed at $3,000 per annum, plus 10 per cent increase thereon for each term of five years' service in the Army, Navy, and Marine Corps, with the limitation that "the total amount of such increase for length of service shall in no case exceed forty per centum on the yearly pay of the grade as pro\dded by law," and that the "annual pay" of lieutenant commander shall not exceed 798 The Navy. Pt.2. REVISED STATUTES. Sec. 1556. S4,000 per annum. As to increased pay over and above the amount of this limitation for special service, see note below under "38. Ad- ditional pay for special duty," and note to section 1571, Re\ased Statutes. By act of May 18, 1920 (41 Stat, 601, 602), the pay of lieutenant commanders in the Na\"y was increased $840 per annum ' ' in addition to all pay and allowances now allowed by law," such increase to commence January i, 1920, and to remain effective "until the close of the fiscal year ending June 30, 1922." As to allowances of lieutenant commanders, see notes to sections 1487, 1558, and 1578, Re- A-ised Statutes. 9. Lieutenants. — By act of May 13, 1908 (35 Stat., 127), the pay of lieutenants was fixed at $2,400 per annum, plus 10 per cent increase thereon for each term of fi^'e years' serA-ice in the Army, Navy, and Marine Corps, with the limitation that "the total amount of such in- crease for length of serAdce shall in no case exceed forty per centum on the yearly pay of the gi-ade as pro\'ided by law. ' ' As to increased pay for special service, see note below under "38. Additional pay for special duty," and note to section 1571, ReAdsed Statutes. By act of May 18, 1920 (41 Stat., 602), the pay of lieutenants in the NaAy was increased $720 per annum, "in addition to all pay and allowances now allowed bylaw," such increase to commence January 1, 1920, and to remain effective "until the close of the fiscal year ending June 30, 1922." As to allowances of Lieutenants, see notes to sections 1487, 1558, and 1578, Re\ised Statutes. 10. Masters [lieutenants (junior grade)] and acting lieutenants (junior grade). The grade of master as part of the active Ust of the line was aboUshed, and the grade of lieu- tenant (junior gi-ade) created, bv act of March 3, 1883 (22 Stat., 472), which "proAdded that ' ' the masters now on the list shall constitute a junior grade of, and be commissioned as, lieu- tenants, having the same rank and pay as now pro\ided by law for masters." This had the effect of changing the title "master" to "lieu- tenant (junior grade)." (See note to sec. 1362, R. S.) By act of May 13, 1908 (35 Stat., 127), the pay of Lieutenants (junior gi"ade) was fixed at $2,000 per annum, plus 10 per cent increase thereon for each term of five years' servdce in the Army, Navy, and MarineCorps, with the limitation that "the total amount of such in- crease for length of ser^-ice shall in no case exceed forty per centum on the yearly pay of the grade as pro\dded by law." As to increased pay for special service, see note below under "38. Additional pay for special duty," and note to section 1571, ReAosed Statutes. By act of May 18, 1920 (41 Stat., 602), the pay of Ueutenanta (junior grade) in the Navy- was increased $600 per annum, "in addition to all pay and allowances now allowed by law," such increase to commence Januarj^ 1, 1920, and to remain effective "until the close of the fiscal year ending June 30, 1922." By act of August 29, 1916 (39 Stat., 583), E revision was made for appointment of acting eutenants (junior grade) for aeronautic duties only, and by the same act special proAdsion was made for the pay of officers detailed to duty with aircraft invohdng actual flying. (See be- low, under "38. Additional pay for special duty.") As to allowances of lieutenants (junior grade), see notes to sections 1487, 1558, and 1578, Re- ^dsed Statutes. 1 1 . Ensigns and acting ensig^ns. — By act of May 13, 1908 (35 Stat., 127, 128), the pay of ensigns was fixed at $1,700 per annum, plus 10 per cent increase thereon for each term of five years' service in the Army, Navy, and Marine Corps, with the limitation that "the total amount of such increase for length of serv- ice shall in no case exceed forty per centum on the yearly pay of the grade as provided by law. " As to increased pay for special service, see note below imder "38. Additional pay for special duty, " and note to section 1571, Revised Statutes. By act of May 18, 1920 (41 Stat., 602), the pay of ensigns in the Navy was increased $420 per annum, "in addition to all pay and allow- ances now allowed by law, " such increase to commence January 1, 1920, and to reuiain effective "until the close of the fiscal vear end- ing June 30, 1922. " As to allowances of ensigns, see notes to sec- tions 1487, 1558, and 1578, Re\dsed Statutes. By act of August 29, 1916 (39 Stat., 580, 583, 585), proAdsion was made for the appointment of acting ensigns for engineering duties only and for aeronautic duties only. The same act (39 Stat., 581) provided that all commissioned officers of the active list shall receive the same pay and allowances according to rank and length of ser\dce and made special provision for the pay of officers detailed to duty A\dth aircraft invohdng actual flying. (See below imder "38. Additional pay for special duty.") 12. Midshipmen. — The grade of midship- man as part of the active list of the line was abolished, and the grade of junior ensign created, by act of March 3, 1883 (22 Stat., 472), which pro\dded that "the midshipmen now on the list shall constitute a junior grade of, and be commissioned as, ensigns, ha\dng the same rank and pay as now pro\dded by law for mid- shipmen. " The grade of junior ensign thus created was abolished by act of June 26, 1884, section 2 (23 Stat., 60), which provided that "the junior ensigns now on the list shall be commissioned ensigns in the Na\'y, " and that graduates of the Naval Academy who are as- signed to the line of the Navy on the successful completion of their course shall be commissioned ensigns in the Navy. (See notes to sees. 1362 and 1521, R. S.; and see below, under "13. Ca- det midshipmen.'") As to pay of ensigns, see above, under "11. Ensigns. " 13. Cadet midshipmen. — By section 1512, Re\dsed Statutes, it was pro\dded that "the students at the Naval Academy shall be styled cadet midshipmen. " The title of all under- graduates at the Naval Academy was changed to "naval cadets" by act of August 5, 1882 (22 Stat., 285), and the title "naval cadet" was changed to "midshipman" by act of July 1, 1902 (32 Stat., 686). By act of May 13, 1908 (35 Stat., 128), the pay of midsLiipmen was fixed at $600 per au- T99 Sec. 1556. Pt.2. REVISED STATUTES. The Navy. num while at the Naval Academy, and SI, 400 per annum after graduation from the Naval Academv. Prior to the act of March 7, 1912 (37 Stat., 73), the course at the Naval Academy was six years, the first four of which were spent in pursuing the academic studies at the Academy and the remaining two years at sea. The act of May 13, 1908, made two pay grades for mid- shipmen. The effect of the act of 1912, which reduced the course at the Naval Academy to four years was to eliminate the two years' serv- ice at sea and also the pay grade provided for those thus proN'iously serNdng. It follows that the only pay for midsliipmen now authorized by law is that for those pursuing the four years, course at the Naval Academy, viz, $600 per annum. (20 Comp. Dec, 141; 23 Comp. Dec, 279. ('ompare note to sec. 1520, R. S.) By act of July 11, 1919 (41 Stat., 146), it was provided that "the pay of midshipmen shall hereafter be $780 per annum. " By act of August 29, 1916 (39 Stat., 585), it was pro^dded that "student flyers shall, after receiving a certificate of qualification as an aviator for actual flying in aircraft, rank vrith midsliipmen and shall receive the same pay and allowances as midshipmen, plus fifty per centum thereof. " As to rations of midshipmen, see note to sec- tion 1577, Revised Statutes. 1 4. Mates. — -On the general subject of mates, their status, pay and allowances, etc., see notes to sections 1408 and 1409, Revised Statutes. See also sections 1558, 1569, and 1579, Revised Statutes. By act of August 1, 1894 (28 Stat., 212), the annual pay of "the twenty-eight officers now serving as mates in the Navy " was fixed at the foUomng rates: "When at sea, twelve hun- dred dollars; on shore duty, nine hundred dol- lars; on leave or waiting orders, seven hundred dollars." By act of May 13, 1908 (35 Stat., 128), the pay of ' 'all" mates was increased 25 per cent. The pay of mates under section 1556, Revised Stat- utes, clause 14, as amended by said acts of August 1, 1894, and May 13, 1908, is as follows: Mates who were serving as such on August 1, 1894 — when at sea, $1,500; on shore duty, $1,125; on leave or waiting orders, $875. Mates who were rated as such since August 1, 1894 — when at sea, $1,125; on shore duty, $875; on leave or waiting orders, $625. By act of May 18, 1920, section 6 (41 Stat., 602)," it was provided that, "commencing Jan- uary 1, 1920, the following shall be the rate of base pay for each enlisted rating: * * * chief petty officers with j>ermanent appointments and mates, $126 per month " ; and by section 13 of the same act this rate of pay was to remain effective "until the close of the fiscal year end- ing June 30, 1922." It was further provided by section 6 of this act "that the rates of base pay herein fixed shall not be further increased ten per centum as authorized by an act approved Slay 13, 1908, nor by the temporary war in- creases as authorized by section 15 of the act approved May 22, 1917, as amended by the act approved July 11, 1919." The act of May 13, 1908 (35 Stat., 128), to which reference is here made, authorized an increase of 10 per cent in the pay of "all active and retired enlisted men of the Navy," but this did not include mates, whose pay, as above stated, was increased 25 per cent by the same act. No provision is contained in the act of May 18, 1920, with reference to the inclusion or exclusion of this 25 per cent increase in the computation of the pay of mates as therein fixed. (But see ("omp. Dec, noted below.) The act of May 22, 1917, section 15 (40 Stat., 87), to which reference is also made in the pro- vision last quoted from the act of May 18, 1920, provided that "commencing June first, nine- teen hundred and sev^enteen, and continuing until not later than six months after the termi- nation of the present war, all enlisted men of the Navy of the United States in active service," should receive certain increase in pay, includ- ing the following: "Those whose base pay is $45 or more per month, an increase of $6 per month." The act of July 11, 1919 (41 Stat., 140), also referred to in the provision last quoted from the act of May 18, 1920, provided that the rates of pay prescribed in section 15 of the act approv^ed May 22, 1917, "are hereby made the permanent rates of pay of enlisted men of the Nav'v during their present current enlistment and for those who enlist or reenhst prior to July 1, 1920, for the term of such enlistment or reen- listment." Prior to May 18, 1920, the "base pay" of mates (rated as such since Aug. 1, 1894) had been held to be at the rate Off $875 per annum, consisting of their shore duty rate under section 1556, Revised Statutes ($700 per annimi), with the 25 per cent increase allowed thereon under the act of May 13, 1908. The act of May 18, 1920, supersedes or substitutes for said former existing base pay rate that of S126 per month, or 81,512 per annum, a yearly increase of $637 per annum. As the old base rate of $875 per annum, which the $126 per month supersedes, included the 25 per cent additional, the act of May 18, 1920, operates to repeal the provision for the 25 per cent increase to mates in the act of May 13, 1908. Accordingly, held, that the base pav of mates fixed by section 6 of the act of May 18, 1920, at $126 per month, is not to be increased 25 per cent thereof. (27 Comp. Dec, 175, citing 23 Comp. Dec, 279.) The act of May 18, 1920, section 14 (41 Stat., 604), provided that "nothing contained in this act shall operate to reduce the pay or allowances of any officer or enlisted man on the active or retired list: Provided, That the allowances and gratuities now authorized by existing law are not changed hereby, except as otherwise specified in this act. ' ' Mates who are honorably discharged from the Nav^y at the expiration of their enlistment and reenlist in the rating of mate within four months from such discharge are entitled to the four months' gratuity pay provided by section 1573 of the Revised Statutes as amended by the act of March 3, 1899, section 16 (30 Stat., 1008), such honorable-discharge gratuity to be com- puted on the pay they were receiving at the time of their discharge (14 Comp. Dec, 457). By act of May 18, 1920, section 10 (41 Stat., 603), it was provided that "any enlisted man or apprentice seaman who shall reenlist in the Navy within one year from the date of his dis- 800 The Navy. Ft. 2. REVISED STATUTES. Sec. 1556. charge therefrom shall, upon such reenlist- ment, be entitled to and shall receive the same benefits as are now authorized by law for reen- listment mthin four months from date of last discharge from the service: Provided, That this section shall become inoperative six months after the date of the approval of this act." Because of the prohibition contained in sec- tion 1558, Revised Statutes, mates are not entitled, upon reenlistment in accordance wath section 1573, Revised Statutes, as amended by the act of March 3, 1899, section 16 (30 Stat., 1008), to continuous-service pay as provided therein for enlisted men who reenlist pursuant to said statutes (14 Oomp. Dec, 457); and for the same reason, the pay fixed for mates by the act of May 18, 1920, is not to be increased for continuous service (27 Comp. Dec, 175). Mates being specifically excepted from the provisions of section 1569, Revised Statutes, under authority of which extra compensation for good-conduct medals and bars, seaman gunner's certificates, and petty officer's certifi- cates, is provided, they are not entitled to such extra compensation (14 Comp. Dec, 457). Nor does the act of May 18, 1920, operate to grant to mates in the Navy the right to perma- nent additions to their base pay that are au- thorized for enlisted men of the Navy gener- ally under General Order No. 34 for continu- ous service and for good-conduct medals. Inasmuch as mates possessed no right to said permanent additions to their pay previously to May 18, 1920, differing in this respect from enlisted men generally, they could not become invested by the act of May 18, 1920, with a right to said permanent additions without ex- press legislation to that effect. The mere change of their base pay rating, along with that of changes in the base pay of other enlisted ratings, did not in itself confer on mates the independent right to said permanent additions to base pay which the other enlisted ratings already possessed. (27 Oomp. Dec, 175.) For other decisions, see note to section 1408, Revised Statutes. As to allowances of mates, see notes to sections 1558 and 1578, Revised Statutes. 15. Fleet officers. — See notes to sections 1373, 1382, and 1393, Re\'ised Statutes, on the general subject of fleet officers. An officer commissioned after July 1, 1899, is not entitled to the pay provided by section 1556, Revised Statutes, for fleet engineers. The pay provided by that section, including the pay of fleet engineers, is the old Navy pay, and this old Navy pay is reserved to officers who were in the Navy on June 30, 1899. As to other commissioned officers of the line and of the Medical and Pay Corps, the act of March 3, 1899, section 13, provided that they shall re- ceive the "same" pay and allowances, except forage, as officers of the corresponding rank in the Army. The word "same'' in this provi- sion means "identical, not different or other." (Comp. Dec, Aug. 14, 1914, 150 S. and A. Memo., 2761; see above, under "1. General Rule." Compare, U. S. v. Thomas, 195 U. S., 418, 421, holding that the act of March 3, 1899, extended to naval officers only the general pay authorized for the Army, and not the pay of Army officers "for services in particular places or under special circumstances"; and see 12 Comp. Dec, 185, 188, holding that "an engineer of the fleet is a member of the fleet staff of a flag officer, and as such has special duties to per- form, in consideration of which he receives in- creased pay. The position is somewhat analo- gous in this respect to that of aid, who is a mem- ber of the personal staff of the flag officer, and who receives additional pay for the additional services performed as such.") The act of June 7, 1900 (31 Stat., 697), which provides that the naval personnel act of March 3, 1899, section 13, shall not operate so as to reduce the pay which but for the passage of that act would have been received by any commissioned officer at the time of its passage or thereafter, extends to pay which officers may subsequently become entitled to receive and to the pay of a fleet engineer as prescribed by sec- tion 1556, Revised Statutes. (Denig v. U. S., 37 Ct. Cls., 383.) As to increased pay for special service as aid, see note below under this section. 16, Medical directors and inspectors; pay directors and inspectors. — See notes to sections 1368, 1376, 1474, and 1475, Revised Statutes. Under the acts of May 13, 1908, and August 29, 1916, all officers of the Navy receive the same pay and allowances according to rank and length of service, except in certain cases where the old Navy pay is higher than that provided for officers of the same rank and longevity. (See above, under "1. General Rule.") Medical directors and pay directors have the rank of rear admiral and captain in each grade, and medical inspectors and pay inspectors have the rank of commander. (See notes to sections 1474_and 1475, _R. S.) As to the pay of rear admirals, captains, and commanders, see notes above, under this section. 17. Surgeons, paymasters, and chief engineers. — See notes to sections 1368, 1376, 1390, 1474-1476, Revised Statutes. Under the acts of May 13, 1908, and August 29, 1916, all officers of the Navy receive the same pay and allowances, according to rank and length of service, except in certain cases where the old Navy pay is higher than that provided for officers of the same rank and longevity. (See above, under "1. General Rule.") Officers of the Medical Corps below the grade of medical inspector, viz, surgeons, passed assistant surgeons, and assistant surgeons, have the rank of lieutenant commander, lieutenant, and lieutenant (junior grade), depending upon their length of service, original appointments being made with the rank of lieutenant (junior grade), and thereafter advancements in rank up to and including the rank of lieutenant com- mander being made "with the officers of the line with whom or next after whom they take precedence under existing law. " (See note to sec 1474, R.S.) Officers of the Supply Corps below the grade of pay inspector, viz, paymasters, passed assistant paymasters, and assistant paymasters, have the rank of lieutenant commander, lieutenant, lieutenant (junior grade), and ensign, depend- ing upon their length of service, original ap- pointments being made with the rank of ensign, and thereafter advancements in rank up to and 801 Sec. 1656. Pt.2. REVISED STATUTES. The Navy. including the rank of lieutenant commander be- ing made ''Avith the officers of the line w-ith whom or next after whom they take precedence under existing law. " (See note to sec. 1475, R. S.) The Engineer Corps was abolished by the Navy personnel act of March 3, 1899 (30 Stat., 1004). (See note to sec. 1390, R. S.) As to the pay of the various ranks, see notes above, under this section. ''Mounted pay" is not an allowance but pay proper; the officer to whom it is assigned by statute receives it whether he is actually mounted or not; where a surgeon in the Army is entitled to it, a surgeon in the Navy receiving Army pay under the act of March 3, 1899, is entitled to it also. (Richardson v. U. S., 38 Ct. (1s., 182.) 18. Passed assistant surgeons, passed assistant paymasters, and first assistant engineers.- — See note above, under " 17. Sur- geons, paymasters, and chief engineers." See also note' to sections 1368 and 1371, Revised Statutes, concerning the status and pay of passed assistant surgeons. 19. Assistant surgeons, acting assistant surgeons, assistant paymasters, second engineers.- — See note above, under ''17. Sur- geons, pajTnasters, and chief engineers. " Under section 13 of the Navy personnel act of March 3, 1899 (30 Stat., 1007), and the acts of Jime 7, 1900 (31 Stat., 697), March 2, 1907 (34 Stat., 1167), and May 13, 1908 (35 Stat., 127), the pay of acting assistant surgeons was enhanced and assimilated to that of assistant surgeons and did not remain fixed as regulated by section 1556, Revised Statutes. The rank of assistant surgeons having been raised from ensign to lieutenant (junior grade), an acting assistant em'geon was entitled to pay and allowances pro- vided by law for assistant surgeons at the time his services as acting assistant surgeon were rendered, and where he was allowed pay and allowances only at the rate fixed for assistant surgeons at the time the act of May 4, 1898 (30 Stat., 369, 380), was passed, he was entitled to recover the difference. (Plummer v. U. S., 224 U. S. 137, overruling Taylor v. U. S., 38 Ct. Cls., 155, and Nelson v^\J. S., 41 Ct. Cls., 157. See note to sec. 1411, R. S.) By act of May 18, 1920 (41 Stat., 602), th^ pay of acting assistant surgeons was increased $600 per annum, "in addition to all pay and allow- ances now allowed by law, " such increase to commence January 1, 1920, and to remain effec- tive "until the close of the fiscal year ending June 30, 1922. " 20. Assistant surgeons qualified for pro- motion.- — See note above, under "17. Sur- geons, paymasters^ and chief engineers. " See also notes to sections 1368 and 1371, Revised Statutes, concerning the status of passed assist- ant surgeons, and the promotion of assistant surgeons. 21-22. Naval constructors; assistant naval constructors. — Under the acts of May 13, 1908, and August 29, 1916, afl officers of the Navy receive the same pay and allowances, according to rank and length of service, except in certain cases where the old Navy pay is higher than that provided for officers of the same rank and longevity. (See above, under "1. General Rule. '•) As to the rank of naval constructors and as- sistant naval constructors, see note to se<-tion 1477, Revised Statutes; as to the organization of the Construction Corps, see notes to sections 1402 and 1403, Revised Statutes; as to the pay of the various ranks, see notes above, under this section. 23. Chaplains and acting chaplains. — See notes to sections 1395-1398 and 1479, Re- vised Statutes. By act of June 29, 1906 (34 Stat., 554), it was provided that "all chaplains now in the Navy above the grade of lieutenant shall receive the pay and allowances of lieutenant commander in the Navy according to length of service under the provisions of law for that rank, and all chap- lains now in the Navy in the grade of lieutenant shall receive their present sea pay when on shore duty." The same act further provided that ' ' naval chaplains hereafter appointed shall have the rank, pay, and allowances of lieu- tenant (junior grade) in the Navy until they shall have completed seven years of service, when they shall have the rank, pay, and allow- ances of lieutenant in the Navy ; and lieutenants shall be promoted, whenever vacancies occur, to the grade of lieutenant commander, which shall consist of five numbers, and when so pro- moted shall receive the ranlc, pay, and allow- ances of lieutenant commander in the Navy: Provided further, That nothing herein contained shall be held or construed to increase the num- ber of chaplains as now authorized by law or to reduce the rank or pay of any now serving." By act of May 13, 1908 (see above, under "1. General rule"), all officers of the Navy were given the same pay and allowances, ac- cording to rank and length of service, %vith the limitation that "the pay and allowances of chaplains in the Navy shall in no case exceed that provided for lieutenant commanders," and the saving clause that "nothing herein shall be construed so as to reduce the pay or allowances now authorized by law for any commissioned, warrant, or appointed officer * * * of the active or retired lists of the Navy." By act of June 30, 1914 (38 Stat., 404), the grade of acting chaplain was created with the rank, pay, and allowances of lieutenant (junior grade), and provision was made for promotion of acting chaplains to the grade of chaplain with the rank of lieutenant (junior grade), and for the advancement of chaplains to higher ranks to and including the rank of captain, with the proviso ' ' that no provision of this sec- tion shall operate to reduce the rank, pay, or allowances that would have been received by any person in the Navy except for the passage of this section." (See note to sec. 1479, R. S.) By act of August 29, 1916 (39 Stat., 581), it was provided that ' 'hereafter all commissioned officers of the active list of the Navy shall re- ceive the same pay and allowances according to rank and length of service," omitting the Limitation contained in the act of May 13, 1908, with reference to the pay of chaplains. Also in the same act it was pro\dded that "nothing contained in this act shall be construed to re- duce the rank, pay, or allowances of any officer 802 The Navy. PL 2. REVISED STATUTES. Sec. 1556. of the Navy or Marine Corps as now provided bylaw." (See above, under "1. General rule.") The effect of the act of August 29, 1916, was to repeal the limitation in the act of May 13, 1908, respecting the pay and allowances of chaplains, and to give to chaplains above the rank of lieutenant commander the pav and allowances of their rank. (Comp. Dec, May 23, 1917, 195 S. and A. Memo., 4251.) As to rank of chaplains, see note to section 1479, Re\dsed Statutes. As to the pay of the various ranks, see notes above, under this section. 24. Professors of mathematics, civil engineers, and assistant civil engineers. — See notes to sections 1399-1401 and 1480, Re- vised Statutes, respecting professors of mathe- matics; and notes to sections 1413 and 1478, Re\'ised Statutes, respecting ci\al engineers and assistant civil enarineers. Under the acts of May 13, 1908, and August 29, 1916, all officers of the Navy receive the same pay and allowances according to rank and length of ser\dce, except in certain cases where the old Navy pay is higher than that pro^'ided for officers of the same rank and longevity. (See above, under "1. General rule.") As to rank of professors of mathematics, see section 1480, Re\dsed Statutes, and note there- to; as to rank of ci\-il engineers and assistant civil engineers, see note to section 1478, Re- \dsed Statutes. As to the pay of the various ranks, see notes above, under this section. Further appointments to the corps of profes- sors of mathematics were prohibited by act of August 29, 1916 (39 Stat., 577), which act pro- vided that "that corps shall cease to exist upon the death, resignation, or dismissal of the officers now carried in that corps on the active and retired lists of the Navy." 25. Warrant officers, acting warrant officers, and commissioned warrant offi- cers. — See notes to sections 1405-1409, Re- vised Statutes. As to allowances of warrant officers, see note to section 1558, Re\ised Stat- utes. By act of June 17, 1898 (30 Stat., 474, 475), the "grade of pharmacist was created in the Hospital ("orps of the Navy, 'Snth the i-ank, pav, and privileges of warrant officers." By act of March 3, 1899, section 12 (30 Stat., 1007), it was pro^•ided that "the pay of boat- swains, gunners, carpenters, and sailmakers shall be the same as that now allowed by law." By the same act of March 3, 1899, sections 14 and 15 (30 Stat., 1007, 1008), the gi-ade of war- rant machinist was authorized with the pro\'i- sion that the pay of that grade "shall be the same as that of warrant oflicers" ; and that "warrant machinists shall receive at first an acting appointment, which may be made per- manent under regulations established by the Navy Department for other warrant officers." By cict of March 3, 1909 (35 Stat., 771), the title of "warrant machinist" was changed to "ma- chinist." By act of May 13, 1908 (35 Stat., 128), it was pro\'ided that "the pay of all warrant officers * * * is hereby increased twentv-five per cent." By act of March 3, 1915 (38 Stat., 942), the grade of pay clerk was established as a grade of warrant officers in the Na\y, appointments thereto being regularly made by promotion from the grade of acting pay clerk,' also created by that act, and it was pro\ided that "pay clerks and acting pay clerks shall have the same pay, allowances, and other benefits as are now or may hereafter be allowed other warrant officers and acting warrant officers, resrec- tively." ' By act of August 29, 1916 (39 Stat., 572), it was provided that "the pharmacists now in the Hospital Corps of the United States Navy or hereafter appointed therein in accordance Avith the provisions of this act shall have the same rank, pay, and allowances as are now or may hereafter be allowed other warrant officers." By the same act of August 29, 1916 (39 Stat., 578), it was pro\'ided that "warrant officers shall be allowed such leave of absence, with full pay, as is now or may hereafter be allowed other officers of the United States Navy." Under this pro^'ision, a warrant officer granted leave of absence from duty at sea is entitled to full pay at the rate received by him while on sea duty; the words "full pay," as used in this pro\ision, "undoubtedly mean that warrant officers are to be granted leave without any reduction in the pay they are recei\ang at the time leave is granted." (23 Comp. Dec, 200; but note that the "other officers of the United States Navy," referred to in this enactment, do not, while on leave of absence from sea duty, receive full pay at the rate received by them while on sea duty: see 18 Comp. Dec, 340, and see note below as to leave of absence pay.) By act of March 4, 1917 (39 Stat., 1181), it was provided that "hereafter the pay of warrant officers while on shore duty during the fourth three vears' sersdce shall be $1,750 per annum." By act of July 11, 1919 (41 Stat., 140), war- rant officers on shore duty beyond the con- tinental limits of the United States shall, while so ser^'ing and from the time of departure from and until the time of return to said limits under orders to or from such foreign-shore duty, receive the same pay as is now or may be au- thorized by law for warrant officers on sea duty. Prior to this enactment warrant officers were not entitled to increased pav for shore duty bevond seas. (Ollif v. U. S.,'46 Ct. Cls., 349; 14 Comp. Dec, 882.) The grade of saUmaker has become obsolete, no appointment thereto ha\ing been made since May 4, 1888. (See note to sec 1405, R. S.) Under section 1556, Re^'i8ed Statutes (clause 25), as amended by the foregoing statutes, thf pay of warrant officers, that is, boatswains, gunners, carpenters, machinists, pharmacists, and pay clerks, is as follows: During the first three years after date of appointment, when at sea or' on foreign-shore dutv, $1,500; on shore duty, $1,125; on waiting orders, $875; during the "second three years after such date, when at sea or on foreign-shore dutv, $1,625; on shore dutv, $1,250; on waiting orders, $1,000; during the 'third three years after such date, when at sea or on foreign shore duty, $1, 750; on shore h 803 Sec. 1556. PL 2. REVISED STATUTES. The Navy. duty, ?l,rr25; on waitinc; orders, $1,125; during the fourth throe years after such date, when at sea or on foreign-shore duty, $2,000; on shore duty, $1,750; on waiting orders, $1,250; after 12 years from such date, when at sea or on for- eign-shore duty, $2,250; on shore duty, $2,000; on waiting orders, $1,500. (The "waiting or- ders" pay as gi\'en in this paragraph is also the leave pay which warrant oflicers are in practice allowed while on leave of a})sence in excess of the time authorized by law \nth full pay.) Acting pay clerks, and machinists holding acting appointments as such, as authorized by statute, and boatswains, gunners, and carpenters hold- ing acting appointments as authorized by Navy Regulations, receive the same rates of pay as above set forth for warrant officers. (See note to sec. 1410, R. S., as to acting officers.) By act of May 18, 1920 (41 Stat., 602), the pay of warrant officers of the Navy was in- creased $240 per annum, "in addition to all pay and allowances now authorized by law, " such increase to commence January 1, 1920, and to remain effective "until the close of the fiscal year ending June 30, 1922. " Special pro\asions as to pay of retired warrant officers while employed on active duty are con- tained in act of April 10, 1918 (40 Stat., 51 G). By act of March 3, 1899, section 12 (30 Stat., 1007), chief boatswains, chief gunners, chief carpenters, and chief sailmakers were to "rank with, but after, ensign," and to receive" the same pay and allowances as are now allowed a second lieutenant in the Marine Corps. " By act of May 13, 1908 (see above, under "1. General rule"), it was provided that "here- after all commissioned officers of the active list of the Navy shall receive the same pay and allowances according to rank and length of eer\'ice, " with the saving clause that "nothing herein shall be construed so as to reduce the pay or allowances now authorized by law for any commissioned, warrant, or appointed offi- jjgj. * * * q{ ^YiQ active or retired lists of the Na\y . " Under this act chief boatswains, chief gunners, chief carpenters, and chief sail- makers, being commissioned officers and hav- ing the rank of ensign, became entitled to the same pay and allowances as ensigns in the Navy. (14 Comp. Dec, 883.) As to the pay of ensigns, see notes above, under this section. By act of March 3, 1909 (35 Stat., 771), it was provided that "no warrant officer, heretofore or hereafter promoted six years from date of war- rant, shall suffer a reduction in pay which, but for such promotion, would have been received by him. " Under this act the pay which is not to be reduced is the pay attaching to the war- rant officer in the lower grade at the time the officer vacates it upon promotion to a higher grade, and does not include any additional pay that may thereafter be made a part of the warrant office thus vacated by subsequent legislation. (26 Comp. Dec, 935.) By the same act of March 3, 1909 (35 Stat., 771), it was provided that chief machinists shall "have the same pay and allowances as are allowed chief boatswains, chief gunners, chief carpenters, and chief sailmakers. " By act of August 22, 1912 (37 Stat., 345), it was provided that chief pharmacists shall ' ' have the rank, pay, and allowances of chief boat- swains. " By act of August 29, 1916 (39 Stat., 572, 573), it was provided that chief pharma- cists shall "have the same rank, pay, and allowances as now or may hereafter be allowed other commissioned warrant officers. " By act of March 3, 1915 (38 Stat., 942), it was provided that chief pay clerks shall "have the rank, pay, and allowances of chief boat- swains. " By act of August 29, 1916 (39 Stat., 578), it was provided that "hereafter chief boatswains, chief gunners, chief machinists, chief carpen- ters, chief sailmakers, chief pharmacists, and chief pay clerks, on the active list with credit- able records, shall, after six years from date of commission, receive the pay and allowances that are now or may hereafter be allowed a lieutenant (junior grade), United States Navy: Provided, That chief boatswains, chief gunners, chief machinists, chief carpenters, chief sail- makers, chief pharmacists, and chief pay clerks, on the active list with creditable records, shall, after 12 years from date of commission, receive the pay and allowances that are now or may hereafter be allowed a lieutenant. United States Navy. " Similar provisions as to pay of retired chief warrant officers while employed on active duty are contained in act of April 10, 1918 (40 Stat., 516.) "Creditable records" within the meaning of the act of August 29, 1916, relating to the pay of commission warrant officers, does not import distinguished records, but requires only that a record be such that upon examination for pro- motion it would be found satisfactory. In passing upon the creditability of an officer's record in these cases consideration should be given to all matters therein disclosed, whether pertaining to his mental, moral, or professional qualifications, and it is necessary that an officer be satisfactory in all these respects if his record is to be deemed creditable. (C. M. O. 33, 1916, p. 6, citing file 17789-27, Sept. 21, 1916.) In determining whether the record of- a com- missioned warrant officer is creditable, the in- vestigation should ordinarily be limited to a scrutiny of his record in his present grade, and his prior record in the service should not ba taken into consideration except in the cases where under existing law this would be done in determining his fitness for promotion. (C. M. O. 33, 1916, p. 6, citing file 17789-27, Sept. 21, 1916.) _ When a commissioned warrant officer has the necessary length of service, and it has been decided by the Navy Department that his record is creditable, this definitely fixes the rate of pay and allowances to which he is entitled, and, in the event of his record ceasing to be creditable, his pay and allowances can not be affected except by means of disciplinary action as in the cases of all officers. (C. M. O. 33, 1916, p. 6, citing file 17789-27, Sept. 21, 1916.) The purpose of the law of August 29, 1916, was clearly to give additional pay to commis- sioned warrant officers in the nature of the longevity increase to which officers of the Navy are generally entitled. Congress did not intend that, the right to increased pay and allowances once having accrued, the benefit thereof should be lost upon an extra judicial 804 The Navy. PL 2. REVISED STATUTES. Sec. 1556. determination by the Navy Department that the officer's record had ceased to be creditable, but rather Congress contemplated that any- thing of a discreditable nature thereafter occur- ring should be disposed of by means of the disciplinary instrumentalities which it has placed under the control of the Secretary of the Navy, and which may and should be re- sorted to for the purpose of reducing the pay and allowances of any officer, or dismissing him from the Navy, or otherwise punishing him as mav be appropriate. (File 17789-27, Sept. 21, 1916.) \\1ien the record of a commissioned warrant officer has been held by the Navy Department to be creditable, and a certificate to that effect issued, but subsequently it is established by additional e^ddence, unknown to the depart- ment at the time the certificate was issued, that said certificate was clearly erroneous and that in fact his record was not creditable on the date thereof, because of serious offenses com- mitted by him prior thereto of which he was convicted by general court-martial subsequent to the issuance of the certificate, held, that the cancellation of the certificate was authorized, and that the officer 's request that it be retm'ned must accordingly be denied; that the certifi- cate was not cancelled because of matters occurring subsequent to its issuance, and the case therefore is not one covered by the deci- sion of September 21, 1916 (above cited). (File 17789-27: 21, Feb. 28, 1919.) The question whether an oflicer's record is creditable ^\ithin the meaning of the statute must be determined in each specific case as it arises, and such determination must be that of the Secretary of the Na\'y'. The law does not prescribe what method shall be pursued by the Secretary in ascertaining the fact of credita- bility, and this matter is accordingly left to the Secretary's discretion, in the exercise of which he may avail himself of any appropriate ad- ministrative instrumentality. Suggested, that when a commissioned warrant officer has the necessaiy length of ser\dce, his entire record in his existing grade be referred to an examining board for report as to whether or not in the opinion of the board his record is creditable, the board being governed, in arriving at its conclu- sion, by the same considerations as would influence it in determining whether or not the officer in question would be qualified on his record if undergoing examination for promo- tion. The personal appearance of the officer before the board would not be required by law, and as an administrative matter might be un- desirable as well as expensive and inconvenient. The board might, however, if deemed advis- able, call upon the officer to submit evidence, or afford him an opportunity to submit a state- ment for its consideration. The Secretary would be empowered to approve or disapprove the board 's report, or to make an independent decision based upon the evidence adduced. (File 17789-27, Sept. 21, 1916; see also Gen. Order No. 247, Nov. 4, 1916.) Whether or not a commissioned warrant offi- cer's record is creditable is a question of fact to be determined by the examining board in any case referred to it for report. The period of "twelve years from date of commission," is indivisible and, if his record is not creditable considering the entire period, he is not entitled, on a finding that his record was creditable for the last six years of the period, to the pay and allowances of a lieutenant (junior grade). (File 17789-27:15, Apr. 22, 1918.) It is not essential that a commissioned war- rant oflicer should have had a creditable record at all times for a period of six years from the date of his commission to entitle him to the pay and allowances of a lieutenant (junior grade), or that he should have had a creditable record at all times for a period of 12 years from the date of his comaiission to entitle him to the pay and allowances of a lieutenant. The ques- tion as to whether his record is creditable is to be determined as of the date his record if exam- ined by the board, either at the end of six years from the date of his coromission, or at the end of 12 years fi'om the date of commisssion. The question Avhether, considered as a whole, his record is creditable is one for the board to determine; the law does not require that he should have had six years' creditable service, or 12 years' creditable service, as the case may be, but that, at the end of six years, or of 12 years, his record must be creditable before he can receive the pay and allowances of a lieuten- ant (junior grade) or a lieutenant, as the case may be. (File 17789-27:15, Apr. 22, 1918.) As to rates of pay received by lieutenants (junior grade), and lieutenants, see notes above under this section. As to allowances of warrant officers and com- missioned warrant officers, see notes to sections 1487 and 1558, Revised Statutes. 26. Secretaries. — See section 1367, Re- vised Statutes, and note thereto. By act of May 4, 1878 (20 Stat., 50), it waa provided that "on and after the first day of July, eighteen hundred and seventy-eight, there shall be no appointments made from civil life of secretaries or clerks to the Admiral, or Vice Admiral, when on sea service, commanders of squadrons, or of clerks to commanders of vessels; and an officer not above the grade of lieutenant shall be detailed to perform the duties of secre- tary to the Admiral or Vice Admiral, when on sea service, and one not above the grade of master [now lieutenant (junior grade) : see notes above under this section] to perform the duties of clerk to a rear admiral or commander, and one not above the grade of ensign to perform the duties of clerk to a captain, commander, or lieutenant commander when afloat." The pay of secretary of the Naval Academy has been increased from time to time by appro- priations contained in the annual naval appro- priation acts. See, for example, naval appro- priation act approved June 4, 1920 (41 Stat., 828), which contains, under the caption, "Pay, Naval Academy," the following item: "Secre- tary of the Naval Academy, $2,750." The position of secretary to the Admiral was necessarily in abeyance until the grade of Ad- miral was revived. However, when the grade of Admiral was revived, the provisions of law relating to the secretary to the Admiral became again operative. Not being a conxmissioned officer, his pay was not affected by the Navy personnel act of March 3, 1899. Accordingly, he is entitled to a salary of $2,500 per armiun 805 Sec. 1556. PL 2. RE VISED STAT UTES . The Navy. under section 1550. Revised Statutes, and to the allowances of a lieutenant in the Navy, under section 13()7. ((5 Comp. Dec, 828.) See note to section VM\2, Revised Statutes, and notes above, under Ibis section, as to Ad- mirals and Vice Admirals in the Navy. 27. Clerks to commanders of squadrons, ©tc— See act of May 4, 1878 (20 Stat., 50), quoted abov(% under "Secretaries." 28. Clerks to commandants of yards and stations. — See section 1416, Revised Statutes, and note thereto. I>y naval appropriation act of March 3, 1909 (35 Stat., 754), the Secretary of the Navy was authorized to fix the pay of the "clerical, draftinc;, inspection, and messenger force at navy yards and naval stations, " on a per annum or per diem basis, aa he may elect; the same act repealed "so much of section fifteen hundred and fifty -six of the Revised Statutes as relates to j)ay of clerks to commandants of navy yards and naval stations," and omitted the specific provision theretofore made in the annual naval appropriation act, under "Pay of the Navy," for such clerks. 29-34. Clerks to paymasters, etc. — The provisions of section 1556, Revised Statutes, fixing the pay of clerks to paymasters, was re- pealed by the act of May 13, 1908 (35 Stat., 127), which act substituted for the pay specified in said section a provision that "all paymasters' clerks shall, while on duty, receive the same pay and allowances as warrant officers of like length of ser\dce in the Navy " ; which said pro- vision in the act of May 13, 1908, was amended by act of June 24, 1910 (36 Stat., 606), so as to read that "all paymasters' clerks shall, while holding appointment in accoi'dance ^\'ith law, receive the same pay and allowances and have the same rights of retirement as warrant officers of Uke length of service in the Navy." The saving clause in said act of May 13, 1908, that "nothing herein shall be construed so as to reduce the pay or allowances now authorized by law for any commissioned, warrant, or ap- pointed officer or enhsted man of the active or retired lists of the Navy," did not apply to a paymaster's clerk appointed after the enact- ment of that act; accordingly, a clerk to the paymaster at the navy yard, Mare Island, who was appointed after May 13, 1908, was held not entitled to the pay provided by section 1556, Revised Statutes, for that position, but w^as correctly allowed pay at the lower rate provided by law for a warrant officer of like length of service in the Navy. (Jones v. U. S., 50 Ct. Cls., 344.) By act of March 3, 1915, the grades of acting pay clerk, pay clerk, and chief pay clerk were established, and provision was made for the appointment of all paymasters' clerks then in the service to one of said grades. As to the pay and allowances of acting pay clerks, pay clerks, and chief pay clerks, see notes above, under "warrant officers, acting warrant officers, and commissioned warrant officers." 35. Cadet eng^eers. — ^The appointment of cadet engineers was prohibited by act of August 5, 1882 (22 Stat., 285). See note to section 1522, Revised Statutes. 36. Dental Corps; and Nurse Corps (Female).— By act of August 29, 1916 (39 Stat., 573, 574), as amended and reenacted by act of July 1, 1918 (40 Stat., 708-710), it was provided that officers of the Dental Corps (assistant dental surgeons, passed assistant dental surgeons, and dental surgeons) shall have the rank of lieutenant (junior grade), lieutenant, and lieutenant commander, "and shall receive the same pay and allowances as officers of corresponding rank and length of service in the Naval Medical Corps up to and including the rank of lieutenant commander '' and that "dental surgeons shall be eligible for advancement in pay and allowances, but not in rank, up to-and including the pay and allow- ances of commander and captain, subject to such examinations as the Secretary of the Navy may prescribe, except that the num])er of dental surgeons with the pay and allowances of captain shall not exceed four and one-half per centum and the number of dental surgeons with the pay and allowances of commander shall not exceed eight per centum of the total authorized number of dental officers: Provided further, That dental surgeons shall be eligible for advancement to the pay and allowances of commander and captain when their total active service as dental officers in the Navy is such that if rendered as officers of the Naval Medical Corps, it would place them in the list of medical officers with the pay and allowances of commander or captain, as the case may be." By the same act of August 29, 1916, it was provided that ' ' the senior dental officer now at the United States Naval Academy" shall have * ' the grade of dental surgeon and the rank, pay, and allowances of lieutenant commander.' By the same it was further pro\dded that "nothing herein contained shall be construed to legislate out of the service any ofiicer now in the medical department of the Navy or to re- duce the rank, pay, or allowances now author- ized by law for any officer of the Navy." By act of May 18, 1920 (41 Stat., 602), the pay of "acting assistant dental surgeons in the Navy" was increased $600 per annum, "in ad- dition to all pay and allowances now allowed by law," such increase to commence January 1, 1920, and to remain effective "until the close of the fiscal year ending June 30, 1922." (The Navy Register of January 1, 1920, shows only one "acting assistant dental surgeon," being an officer appointed under the proAdsions of an act of Congress approved August 22, 1912 (37 Stat., 344), which act was superseded by the act of August 29, 1916, above cited, containing a saving clause with reference to officers then in the medical department not being thereby legislated out of the service.) The advancement of dental officers to the pay and allowances of commander and captain should be by the same method that medical officers are promoted; i. e., by selection by the same board of officers as selects medical officers for advancement to the ranks of com- mander and captain. No other board is quali- fied to determine whether the ser\dce of dental officers "is such that if rendered as officers of the Naval Medical Corps, it would place them in the list of medical officers with the pay and allowances of commander or captain, as the case may be." (File 2650^315:2, Aug. 29, 1919.) 806 The Navy. Pt. 2. REVISED STATUTES. Sec. 1556. Nurse Corps, Female. — The superintendent, chief nurses, and nurses of the Nurse Corps (Female), U. S. Navy, shall respectively re- ceive the same pay, allowances, emoluments, and privileges as now or hereafter provided by or in pursuance of law for the Nurse Corps (Female) of the .irmy. (Act May 13, 1908, 35 Stat., 146.) The designation of the "Nurse Corps (Female) " of the Army was changed to "the Army Nurse Corps" by act of July 9, 1918, Chapter V, section 1 (40 Stat., 879), which said act also made pro\asion as to the pay and al- lowances of the Army Nurse Corps. (See note below.) Reser\^e nurses of the Nurse Corps (Female) , U. S. Naw, may be assigned to active duty when the necessities of the service demand and and when on such duty shall receive the pay and allowances of nurses; but sliall receive no compensation except when on active duty. (Act May 13, 1908, 35 Stat., 146.) Members of the Nurse Corps (Female), U. S. Navy, shall hereafter be paid the same commu- tation of quarters as is or may be allowed mem- bers of the Nurse Corps of the Army. (Act June 15, 1917, 40 Stat., 209.) It had previously been pro\dded by act of June 24, 1910 (36 Stat. , 606), that the Secretary of the Nax-y, in his discretion, is authorized to allow members of the Nurse Corps (Female) of the Na\'y $15 per month in lieu of quarters when Government quarters are not available. The annual pay of members of the Army Nurse Corps was fixed by act of July 9, 1918, Chapter V, section 4 (40 Stat., 879), as amended by act of February 28, 1919 (40 Stat., 1211), as follows: Superintendent, $2,400; assistant superintendents and directors, $1,800; assistant directors, $1,500; chief nurses, $360 in addition to the pay of nurses; nurses, $720 for first three years' ser\dce, $780 for second three years' ser- vice, $840 for third three years' service, $900 for fourth three years' ser\ice, $960 after 12 years' ser\ice in said corps (including time of service as contract nm'ses); reserve nurses, when on active duty will receive the same pay as nurses who have served in the corps for periods corresponding to the full period of their active service; all members of said corps, in addition to the foregoing, $10 per month when ser\ing beyond the contiilental limits of the United States (excepting Porto Rico and Hawaii). By act of May 18, 1920, section 4 (41 Stat., 602), it was pro\ided that "Commercing Janu- ary 1, 1920, the pay * * * of meml^ers of the Female Nurse Corps of the Army and Navy is hereby increased 20 per centum;" and by section 13 of the same act (41 Stat., 604) it was pro\ided that such increase "shall remain effective until the close of the fiscal year ending June 30, 1922, unless sooner amended or repealed. " Meml^ers of the Army Nurse Corps shall be entitled to cumulative leave of absence with pay at the rate of 30 days for each calen- dar year of service in said corps, not exceed- ing, however, 120 days at one time; and in addition thereto sick leave not exceeding 30 days in any one calendar year in cases of illness or injm-y incurred in the line of dutv. (Act July 9, 1918,'Chapter V, section 5, 40 Stat., 879.) Where a member of the Nurse Corps (Fe- male) was upon her own request discharged, but the commanding officer erroneously is- sued a discharge stating that same was to take effect from date thereof, contrary to the author- ization fi'om the Bureau of Medicine and Siu-gery as appro.ved by the Secretary of the Navy for her discharge to take effect upon the expiration of 74 days' accrued leave of absence, held, that the words "from this date" in the discharge must be disregarded as un- authorized and ineffective; that the dis- charge was otherwise legal and should be re- garded as becoming effective on the date specified in her application therefor as ap- proved by the Surgeon General, the Bureau of Navigation, and the Secretary of the Navy; that if said nurse was absent from duty in the meantime, such absence was by leave of the head of the department and she is accord- ingly entitled to pay for such period of author- ized absence. (File 26477-87, Feb. 6, 1919, citing Reinhard's Case, 10 Ct. Cls., 282.) The act of July 9, 1918, relating to cumida- tive leaves of absence, entitles members of the Niu-se Corps (Female) to final leave, to the amount accumulated and unused, not to exceed 120 days, prior to honorable discharge. (File 26477-87, Feb. 6, 1919, citing 23 Comp. Dec, 192, 197; 9 Comp. Dec, 606; Hurlburt V. U. S,, 30 Ct. Cls., 16: and U. S. v. Barringer, 188 U. S., 577, reversing Barringer v. U. S., 37 Ct. Cls., 1.) It would seem that if cumulative leave of absence were refused prior to final discharge, the niu-se concerned would be entitled to receive pay for such leave due but not granted; however, this question not decided, but should be presented to the accounting officers if such a case should occur. (File 26477-87, Feb. 6, 1919.) The question of granting leave to members of the Nurse Corps (Female) presents a matter coming under the jurisdiction of the Navy Department and not under the jurisdiction of the Comptroller of the Treasury. (File 26477-102, Feb. 19, 1921.) Members of the Army Nurse Corps shall receive transportation and necessary ex- penses when traveling under order and such allowances of quarters and subsistence and, during illness, such medical care as may be prescribed in regulations by the Secretary of War; and when at places where no public quarters are available, commutation in lieu thereof, and of heat and light therefor, at such rates and upon such conditions as are now or shall hereafter be provided by law. (Act July 9, 1918, Chap. V, sec. 6, 40 Stat., 879.) It had previously been provided by act of August 29, 1916 (39 Stat., 626), that the superintendent of the Nurse Corps (Fe- male) of the Army should receive such allow- ances of quarters, subsistence, and medical care during illness as may be prescribed in regulations by the Secretary of War. By Army appropriation act of May 22, 1917 (40 Stat., 50), pro\ision was made for com- mutation of rations for members of the Nurse Corps (Female) while on duty in hospital at 40 cents per ration for the ensuing fiscal 807 Sec. 1556. PL 2. REVISED STATUTES.. The Navy. year; by Army appropriation act of June 5, 1920 (41 Stat.. 95(1), appropriation was made for commutation in lieu of rations for members of the Army Nurse t'orps while on duty in hospital, without specifying the amount of such commutation. By act of June 4, 1920, section 10 (41 Stat., 767), it was provided that "hereafter the members of the Army Nurse Corps shall have relative rank as follows: The superintendent shall have the relative rank of major; the as- sistant superintendents, director, and assist- ant directors, the relative rank of captain; chief nurses, the relative rank of first lieu- tenant; head niu-ses and muses, the relative rank of second lieutenant; and as regards medical and sanitary matters and all other work witliin the line of their professional duties shall have authority in and about military hospitals next after the officers of the Medical Department. The Secretary of War shall make the necessary regulations l^rescribing the rights and privileges con- ferred by such relative rank." The regulations made by the Secretary of War prescribing the "rights and privileges" confeiTed upon nurses by the relative rank given them by the act of June 4, 1920, were contained in War Department General Orders, No. 49, of August 14, 1920, which provided, among other things, the following: "8. Nurses are entitled to the same allowances and privileges, except mileage, as are pre- scribed for commissioned officers of grades corresponding to their relative rank, viz: Commutation of quarters when quarters in kind are not available; commutation of heat and light; purchase pri\dleges; instance privileges; gratuities; and in general all such personal pii\T.leges and perquisites, not specifically denied them, as go with commis- sioned rank and are customarily enjoyed by commissioned officers. 9. Pay and allowances of nurses are set forth in Chapter V of the act of Congress approved July 8, 1918. (40 Stat., 845, 879, Bui. No. 43, W. D., 1918.)" Payment of compensation to beneficiaries of nm'ses who die while on the active list of the Regular Navy from wounds or disease not the result of their own misconduct, is provided for by act of June 4, 1920. (41 Stat., 824.) 37. Naval Reserve Force. — Pay for active duty.— By act of August 29, 1916 (39 Stat., 588), which created the Naval Reserve Force, it was pro\'ided that "all members of the Naval Re- serve Force shall, when actively employed as set forth in this act, be entitled to the same pay, allowances, gratuities, and other emoluments as officers and enlisted men of the naval ser-\'ice on active duty of corresponding rank or rating and of the same length of service." This pro- vision was superseded by the following clause in the act of July 1, 1918 (40 Stat., 712): "Mem- bers ot the Naval Reserve Force when employed in active service, ashore or afloat, under the Naxy Department shall receive the same pay and allowances as received by the officers and enlisted men of the regular Navy of the same rank, grades, or ratings and of the same length of service, which shall include service in the Navy Marine Corps, Naval Reserv^e Force, Naval Militia, National Naval Volunteers, or Marine Corps Reserve." An officer of the Naval Resen-e Force, as- signed to active duty, who is thereafter de- tached from such duty with direction to await further orders, is not thereby returned to a resen'e status, but is entitled to the same pay that an ofiicer of similar rank and length of servace in the Regular Navy would be entitled to while awaiting orders as dii'ected by the Navy Department. The words "actively em- ployed," and "active service," as used in the statute, refer to service in the Na\'y under the call of the President in time of war or national emergency, as distinguished from service in reserve. In this case the officer was not dis- charged from active duty in the sense of being returned to a reserve status. The order of de- tachment shows conclusively that he was to hold himself in readiness for new duty. (24 Comp. Dec., 626.) The act of August 29, 1916, pro\dding that members of the Naval Reserve Force when actively employed shall receive the same pay and allowances as officers and enlisted men of the Regular Navy of corresponding rank or rating and of the same length of service, does not limit the pay and allowances of naval reservdsts when in active ser\'ice to the pay and allowances provided for members of the Regular Navy at the time said act of August 29, 1916, was approved; but entitles them to the same pay and allowances as are pro\'ided by law for members of the Regular Navy at the time their active service with the Navy is rendered; ac- cordingly enlisted personnel of the NaA'al Re- serve Force are entitled while in active service to the increase of pay pro\'ided in the act of May 22, 1917, for members of the Regular Na\'j'. (23 Comp. Dec, 773.) Members of the Naval Reserve Force given provisional rank as officers of the Supply Coi-ps, but who have not been required to execute a bond as required of supply officers in the Navy by sections 1383 and 1560, Re\'ised Statutes, are nevertheless entitled to receive the pay and allowances of theii" rank on the acti^-e list during the period they may be assigned to duty for training with their consent, when not required to make disbursements of public money nor charged with accountability or responsibility for any Government property. (27 Comp. Dec, 228.) An officer of the Fleet Naval Reserve, when on active duty in time of war or national emer- gency, placed in a hospital for treatment, is entitled to active duty pay wliile in hospital under the same circumstances and subject to the same limitations under which officers of the Regular Navy would be entitled. (23 Comp. Dec, 651; see also, 24 Comp. Dec, 626.) Members of the Fleet Naval Reserve de- tached from active duty (to which they had been 3,ssigned for training on board ship), and transferred to a naval hospital for treatment, are not entitled to active service pay thereafter, except for time necessary to tra^'el to their homes. (Comp. Dec, Feb. 23, 1917, 192 S. and A. Memo., 4157, distinguishing Comp. Dec, Aug. 3, 1916, 186 S. and A. Memo., 4031, in which it was held that a member of the former Naval Reser\-e, created by the act of 808 The Navy. PL 2. REVISED STATUTES. Sec. 1556. March 3, 1915, 38 Stat., 941, was entitled to active duty pay during a period when he was under treatment in a hospital, in that the en- listed man in the latter case was not detached from his ship and sent to a hospital for tempo- rary treatment.) A member of the Naval Reserve Force in an enlisted rating who, after undergoing treatiijent in a naval hospital, is ordered on sick leave of absence is in a duty status and entitled to the per diem allowance for subsistence for such period. (26 Comp. Dec, 47.) "An oflicer in the Naval Reserve Force serv- ing at sea, who is gi-anted leave of absence, is entitled to full active duty pay for the period of absence." (24 Comp. Dec, 626, 627. See also 21 Comp. Dec, 628, holding that an officer of the former ]\Iedical Reserve Corps of the Navy, on authorized leave granted wliile on active duty, was entitled to pay for the period of such leave, pro\T.ded the leave granted was not in excess of the leave to the credit of the officer at the time he availed himself of it.) An officer of the Naval Reserve Force on active duty, who formerly served in the Navy, is entitled to be credited for pay purposes %vith the five years' constructive 8er\ice which was credited to him, under the act of March 3, 1899 (30 Stat., 1007), upon his original appointment to the Navy from ci\il Ufe. (Comp. Dec, Feb. 21, 1918, 204 S. and A. Memo., 4505; see also, 24 Comp. Dec, 168; 24 Comp. Dec, 629.) Officers of the Naval Auxiliary Reserve of the Naval Reserve Force are not entitled to lon- ge^dty increase for service rendered in the Naval Auxiliary Service, even though they were entitled to such increase while members of said Auxiliary 8er\ice. (Comp. Dec, June 27, 1917, 196 S. and A. Memo., 4292.) In determining the amount of continuous- service pay to which members of the Naval Reserve Force in enlisted ratings are entitled, under the act of July 1, 1918, by reason of_ naval miUtia service, all legal active service in en- listments which contain the elements of con- tinuous service prescribed for men in the regu- lar Navy should be counted. (25 Comp. Dec, 154.) Members of the Naval Reserve Force who are citizens of the United States are entitled to the benefits of General Order No. 34, Navy Depart- ment, issued under Executive order of Novem- ber 27, 1906 (later embodied in art. 4427, par. 25, Navy Regs., 1913), including in the compu- tation thereunder ser\dce in the naval militia under reenUstments since November 27, 1906. (25 Comp. Dec, 154.) The National Guard not being one of the or- ganizations enumerated in the act of July 1, 1918, for the service in which a member of the Naval Reserve Force in active service is en- titled to credit, and not being comprehended in the term, "Naval Militia, " which is included, an officer of the Naval Reserve Force who has had legal active service in the National Guard to his credit is not entitled to longevity pay therefor. (25 Comp. Dec, 735.) Enlisted men of the Regular Navy who, upon the expiration of enUstment, are transferred to the Fleet Naval Reserve at their request, are entitled aa members of the Naval Reserve Force, while on active duty, to continuous- service pay and pay under General Order No. 34 (art. 4427, par. 25, Navy Regs., 1913), the same as if they had accepted discharge from the Navy at the expiration of enlistment and had thereafter enrolled in the Fleet Naval Reserve; but said enlisted men are not entiled upon such transfer to the honomble discharge gra- tuity. (25 Comp. Dec, 186.) Retainer pay. — Retainer pay for members of the Naval Reserve Force is based solely on consideration of an obligation assumed by them "to serve in the Navy in time of war or during the existence of a national emergency declared by the President. " It is not com- pensation for services rendered. (26 Comp. Dec, 884.) "When not actively employed in the Navy, members of the Naval Reserve Force shall not be entitled to any pay, bounty, gratuity, or pension except as expressly provided for mem- bers of the Naval Reserve Force by the pro- visions of this act. " (Act Aug. 29, 1916, 39 Stat., 588.) An enrolled member of the Naval Reserve Force is not entitled to retainer pay for any period subsequent to the expiration of his term of enrollment and prior to reenrollment, al- though he may be continued on active duty during such period. (26 Comp. Dec, 900.) "Retainer pay shall be in adcUtion to any pay to which a member may be entitled by reason of active service. " (Act Aug. 29, 1916, 39 Stat.. 588.) " In time of peace no member of any class of the Naval Reserve Force shall be entitled to retainer pay when assigned to active duty for purposes other than training." (Act July 1, 1918, 40 Stat., 711.) "Retainer pay provided by existing law shall not be paid to any member of the Naval Reserve Force who fails to train as pro^ided by law during the year in which he fails to train." (Act June 4, 1920, sec 1, 41 Stat., 824.) "Hereafter the Secretary of the Navy may, in his discretion, withhold any part or all of the retainer pay which may be due to a member of the Naval Reserve Force where such members fail to perform such duty as may be prescribed by law for the maintenance of the efficiency of the Naval Reserve Force: Provided, That any money so withheld shall be credited to the appropriation for organizing and administering the Naval Reserve Force to l)e used for any purpose that the Secretary of the Navy may consider proper to increase the efficiency of the Naval Reserve Force." (Act June 4, 1920, sec. 9,41 Stat., 837.) " Retainer pay shall only be paid to members of the Naval Reserve Force upon their making such reports concerning their movements and occupations as may be required by the Secre- tary of the Navy." (Act Aug. 29, 1916, 39 Stat., 588.) "Any pay which may be due any member of the Fleet Naval Reserve shall be forfeited when so ordered by the Secretary of the Navy upon the failure, under such conditions as may be prescribed by the Secretary of the Navy, of such man to report for inspection. " (Act Aug. 29, 1916, 39 Stat., 590.) "Retainer pay shall be paid annually or at shorter intervals, as the Secretary of the Navy, 809 Sec. 1556. PL 2. REVISED STATUTES. The Navy. ill his (liscrotion, may direct. " (Act Aug. 29, l'Jl(i,3'J Stat., 588.) "The retainer pay of all members of the Naval Reserve Force, except the Volunteer Naval Reserve, while enrolled in a jjrovisional rank or rating, and until such time as they shall have been coniirmed in such rank or rating, shall be $12 per annum. Thereafter, the retainer pay shall be that prescribed for mem- bers in the various classes." (Act Aug. 29, 1916, 39 Stat., 588.) "The Volunteer Naval Reserve shall be com- posed of those members of the Naval Reserve Force who are eligible for membersliip in any one of the other classes of the Naval Reserve Force, and who obligate themselves to serve in the Navy in any one of said classes without retainer pay and uniform gratuity in time of peace." (Act Aug. 29, 191(5, 39 Stat., 592.) "The retainer pay of the enrolled men of the Fleet Naval Reserve shall be the same as for the enrolled men of the Naval Reserve and shall be computed in like manner: Provided, That nothing herein shall operate to reduce the re- tainer pay allowed by existing law to enlisted men who, after sixteen years or more of naval eer\-ice, ai'e transferred to the Fleet Naval Reserve." (Act July 1, 1918, 40 Stat., 710.) ' ' The annual retainer pay of members of the Naval Reserve Force, except officers in the Naval Auxiliary Reser\^e and transferred mem- bers of the Fleet Naval Reserve, after confirma- tion in rank; grade, or rating, shall be the equivalent of two months' base pay of the cor- responding rank, grade, or rating in the Navy, but the highest base pay upon wliich the re- tainer pay of officers of the Naval Reserve Force shall be computed shall not be greater than the base pay of a lieutenant commander." (Act Julyl, 1918, 40 Stat., 710.) ' ' The annual retaiaer pay of members in this class [Naval Auxiliary Reserve] after confirma- tion in rank or rating shall be for officers, one month's base pay of the corresponding rank in the Navy." (Act Aug. 29, 1916, 39 Stat., 592.) "Members of the Fleet Naval Reserve who have, when transferred to the Fleet Naval Re- serve, completed naval service of sixteen or twenty or more years shall be paid a retainer at the rate of one-third and one-half, respectively, of the base pay they were receiving at the close of their last naA'al service plus all permanent additions thereto: Provided, That the pay authorized in this paragraph as a retainer shall be increased ten per centum for all men who may be credited with extraordinary heroism in the line of duty or whose average marks in con- duct for twenty years or more shall not be less than ninety-five per centum of the maxi- mum." (Act Aug. 29, 1916, 39 Stat., 590.) Upon original enrollment members of the Fleet Naval Reserve enrolled in enlisted ratings are entitled to retainer pay computed on the rating given them at the date of such original enrollment. The law specifically exempts members of the Fleet Naval Reserve from the requirement that they be given a provisional rating upon first enrollment, and in actual operation such members are, by direction of the Navy Department, presumed to be given a confirmed rating. As enrolled members of the Fleet Naval Reserve are given a confirmed rating upon enrollment, the law authorizing "after confirmation"' a retainer pay to be computed on a basis of "the equivalent of two months' base pay" grants to said members the right to have retainer pay computed on the basis of two months' base pay of the rating in which enrolled. (25 Comp. Dec, 350.) A former ensign in the Navy enrolled in the Fleet Naval Reserve on May 29, 1918, with the l)rovisional rank of ensign, and thereafter, on November 26, 1919, issued a commissioned and confirmed rank of ensign from May 29, 1918, date of enrollment, is entitled to retainer pay based wpon such confirmed rank from the date of his em-ollment, and not merely from the date that he established liis qualifications for such confirmed rank. (26 Comp. Dec, 758.) A former midshipman in the Regular Navy who was enrolled in the Fleet Naval Reserv^e with the pro^visional rank of ensign on January 15, 1918, and thereafter, on November 26, 1919, was issued a commission in the confirmed rank of ensign from January 15, 1918 (date of enroll- ment), is entitled to retainer pay based upon such confirmed rank only from the date that the board, duly appointed for that purpose, passed and reported upon his qualifications for con- firmation, which in this case was October 1, 1919. (26 Comp. Dec, 668.) A member of the Naval Reserve Force hold- ing a confirmed rank or rating, who is promoted to a provisional rank, continues to be entitled to the retainer pay based on the confirmed rat- ing until the ternunation of the enrollment period in which received, but upon reenroll- ment in the pro\dsional rank which he held at the termination of his last enrollment period he loses the right to receive retainer pay based on the former confirmed rating unless again ap- pointed thereto, and is entitled only to retainer pay based on the pro\'isional rank in which reenrolled. If subsequent to liis reenrollment he is again given his former confirmed rating, to date from his reem-ollment, he will be en- titled to retainer pay based on such confirmed rating from said date. (27 Comp. Dec, 82.) Upon promotion to a provisional rating, members of the Fleet Naval Reser-\'e enrolled in enlisted ratings are entitled, under the act of July 1, 1918, to retainer pay computed on the confirmed rating given them at date of enroll- ment. If promotion be to a confirmed rating, retainer pay should be computed on the basis of the confirmed rating thereby acquired. (25 Comp. Dec, 350.) Members of the Fleet Naval Reserve, upon advancement from one provisional or confirmed rank to a liigher confirmed rank, are entitled to retainer pay at the higher rate from the date of confirmation in the Iiigher rank or rating. (25 Comp. Dec, 350.) Officers of the Naval Reserve Force who, while holding a confirmed rank, are transferred to another class of the Reserve and given a higher provisional rank therein, are entitled to continue in receipt of retainer pay which they were receiving in the confirmed rank held by them. (25 Comp. Dec, 421.) Transferred members of the Fleet Naval Re- serve are entitled, as retainer pay, to one-third or one-half, respectively, of the base pay they were receiving at the close of their last naval 810 The Navy. PL 2. REVISED STATUTES. Sec. 1556. service, and to the full amount of all permanent additions thereto. Thus, where the current rate of pay of a man at the time of his transfer to the Fleet Naval Reserve in September, 1916, after 20 years' service, was $94.53 per month, composed of $70 base pay, plus .$24.53 perma- nent additions, he was entitled as retainer pay to $59.53 per month, being one-lialf of his base pay, or $35, plus all permanent additions, amounting to $24.53, such permanent additions being composed of $(5.44 continuous-service pay, $8 pay under Executive order of Novem- ber 27, 1906 (art. 4427, par. 25, Navy Regs., 1913), $1.50 for good-conduct medal, and $8.59 as 10 per cent increase of pay under the act of May 13, 1908, said 10 per cent increase being treated as a permanent addition to Ms base pay and therefore being allowed in full. (See 23 Comp. Dec, 190.) . In computing the retainer pay of members of the Fleet Naval Reserve who have been transferred thereto at the expiration of enlist- ment after completing 16 years of service in the Regular Navy, the increased rates of pay pro- \dded in section 15 of the act of May 22, 1917 (40 Stat., 87), which are made permanent in certain enlistments by the act of July 11, 1919 (41 Stat., 140), are considered as establishing new base rates of pay for each rating; while the 10 per cent increase of pay authorized by the act of May 13, 1908 (35 Stat., 128), is to be treated as permanent addition to pay and not as an increase in the base rates thereof. Ac- cordingly, said man will be allowed, in com- puting his retainer pay, only one-third of the increase provided by the acts of May 22, 1917, and July 11, 1919, while he will be allowed the full amount of increase provided by the act of May 13, 1908. (26 Comp. Dec, 219, explaining 23 Comp. Dec, 190.) The retainer pay of officers of the Naval Re- serve Force is not increased by the temporary increase granted officers of the NaA'y by the act of May 18, 1920 (41 Stat., 601); such temporary increase was not an increase in the base pay of the various ranks in the Navy, and as the re- tainer pay of an officer of the Naval Reserve Force is computed only upon base pay of the confirmed rank held by him, the computation of his retainer pay is not affected by said act of May 18, 1920. However, confirmed members of the Naval Reserve Force holding enlisted ratings, and transferred members of the Fleet Naval Reserve, are entitled to retainer pay computed on the increased rates of pay pro- vided in section 6 of said act of May 18, 1920 (41 Stat., 602), for enlisted men of the Navy; but if such members were not on active duty during any of the period from January 1, 1920, from which said increase in the pay of the Regular Navy took effect, until May 18, 1920, when said act was' approved, they are not en- titled to such increase prior to the date of said act. (27 Comp. Dec, 274, modifying 27 Comp. Dec, 126.) A transferred member of the Fleet Naval Reserve of over 20 years' service is entitled to but one 10 per cent increase of his retainer pay, as provided by the act of August 29, 1916, even though he may possess the two qualifications of extraordinary heroism and conduct marks. The statute authorizes but one 10 per cent in- crease for the possession l)y a man of either of two alternative quafifications, and makes his possession of one or other of the qualifications sufficient to entitle him to it. The fact that he may possess both of the qualifications does not operate to entitle him to two 10 per cent in- creases, only one having been provided for. (Comp. Dec, June 2, 1917, 196 S. and A. Memo., 4266.) "That the retainer pay of those members of the Fleet Naval Reserve who, pursuant to call, shall return to active duty within one month after tlie approval of this act and shall continue on active duty until the Navy shall have been recruited up to its permanent authorized strength, or until the number in the grade to which they may be assigned is filled, but not beyond June 30, 1922, shall be computed upon the base pay they are receiving when retrans- ferred to inactive duty, plus the additions or increases prescribed in the naval appropriation act approved August 29, 1916, for members of the Fleet Naval Reserve." (Act May 18, 1920, sec 5, 41 Stat., 603. By sec. 13 of the same act it was provided that the provisions of sec. 5 thereof "shall remain effective until the close of the fiscal year ending June 30, 1922, unless sooner amended or repealed.") "Any member [of the Fleet Naval Reserve] who has failed to perform three months' active ser\dce with the Navy in any term of enrollment shall, on the next reenrollment, receive retainer pay at the rate of $12 per annum until such time as he shall have completed three months' active service. The three months' active service with the Navy may be taken in one or more periods, at the election of the member." (Act Aug. 29, 1916, 39 Stat., 590.) "Members of the Naval Reserve Force who reeiu'oll for a term of foiu: years within four months from the date of the termination of their last term of enrollment, and who shall have performed the minimum amount of active service required during the preceding term of enrollment, shall, for each such reem'ollment, receive an increase of twenty-five per centum of their base retainer pay." (Act Aug. 29, 1916, 39 Stat., 588.) "Officers and men em-olling in the Fleet Naval Reserve within four months of the date of the termination of their last naval service or reemolling \\athin fom' months of the date of the termination of their last term of enrollment shall receive an increase of twenty-five per centum of their retainer pay for each such en- rollment." (Act Aug. 29, 1916, 39 Stat., 590.) "Service in the Navy, Marine Corps, National Naval Volunteers, and Naval Militia shall be counted as continuous service in the Naval Reserve Force, both for the purpose of retire- ment and of computing retainer pay * * * : Provided further, That no retainer pay of any member of the Naval Reserve Force, except those enlisted men transferred to the Fleet Naval Reserve after sixteen or twenty or more years' naval service, shall be in excess of the amount authorized to members having had sixteen years' continuous service therein." (Act July 1, 1918, 40 Stat., 710.) 54G41°— 22- -52 811 Sec. 1556. PL 2. REVISED STATUTES. The Navy. "For all purposes of this act a complete en- listment during minority and any enlistment terminated within three months prior to the expiration of the term of enlistment by special oraer of the Secretary of the Navy shall be con- sidered as four years' ser^dce. " (Act Aug. 29, 191(!, 39 Stat., 590.) Any former member of class one of the United States Naval Reserve, established by act of March 3, 1915 (38 Stat., 940), who was serving therein on August 29, 1916, and w'ho upon his own ajiplication prior to July 1, 1917, was en- rolled in the Naval Reserve Force, shall, for all purposes, be considered as having served con- tinuously in such Naval Reserve Force since August 29, 191(i, with due credit for previous and continuous ser^^ce in the Naval Reserve in the same manner and to the same effect as for equal length of service in the Naval Reserve Force. (Act ^lar. 4, 1917, 39 Stat., 1174.) Under the act of March 4, 1917, an enlisted man of the Navy who enrolled in the former Naval Reserve within four months from the date of his discharge from the Na^^^ was serving in said Naval Reserve on August 29, 1916, and was enrolled in the Fleet Naval Reserve prior to July 1, 1917, upon his own application, is regarded as haATUg served constructively in the Naval Reserve Force from the date of his enrollment in the former Naval Reserve, and therefore as having enrolled in said Naval Re- serve Force within four months from the date of termination of his last naval ser\dce ; he is therefore entitled to 25 per cent increase of retainer pay, as provided by the act of August 29, 1916, for persons enrolling in the Naval Re- serve Force within four months of the date of termination of their last naval serAdce. (Comp. Dec, Sept. 29, 1917,199 S. and A. Memo., 4386.) Under the act of July 1, 1918, members of the Naval Reserve Force are entitled, for pre\dou8 serAdce in the Na-s^', Marine Corps, National Naval Volunteers, and Naval Militia, to credit for such serA-ice as provided in the act of August 29, 1916, i. e., for each four years a credit of 25 per cent, within the limitation of 16 years; allowing for members wdth four, but less than eight years' previous services, a credit of 25 per cent; for eight but less than 12 years, 50 per cent; for 12 but less than 16 years, 75 per cent; and for 16 or more years' service, 100 per cent. (25 Comp. Dec, 504, modifying 25 Comp. Dec, 308.) Members of the Naval Reserve Force trans- ferred thereto from the National Naval Vol- unteers, under the pro\dsions of the act of Julv 1, 1918 (40 Stat., 708), are entitled to increase of 25 per cent of their base retainer pay upon re- enrollment in the Naval Reserve Force within four months from termination of their three- year enrollment in which serving when so transferred. (27 Comp. Dec, 221.) Members of the Naval Reserve Force ap- pointed to commissioned or warrant grades "shall not be dejjrived of the retainer pay, allowances, or gratuities to which they would otherwise be entitled. " (Act Aug. 29, 1916, 39 Stat., 587.) Enrolled members of the Fleet Naval Reserve in enlisted ratings, who have been appointed to commissioned, warrant, and chief warrant grades in other classes of the Naval Reserve Force, are not entitled to continue after June 30, 1918, in receipt of retainer pay of their en- listed ratings, computed on the rates estab- lished by the act of August 29, 1916, which rates of pay for eru-olled members of the P^leet Naval Reserve were abolished and new rates substituted by the act of July 1, 1918 (40 Stat., 710). However, emolled members of the Fleet Naval Reserve so appointed to offices in other classes of the Naval Reserve Force may, on and after July 1, 1918, be allowed the rate of retainer pay provided by the act of that date for the enlisted rating which they held in the Fleet Naval Reserve. (25 Comp. Dec, 445.) Pay irhik holding other offices. — "No existing law shall be construed to prevent any member of the Naval Reserve Force from accepting employment in any branch of the public serv- ice, except as an officer or enlisted man in any branch of the military service of the United States or any State thereof, nor from receiAdng the pay and allowances incident to such em- ployment in addition to his retainer pay." (Act Aug. 29, 191G, 39 Stat.. 588.) "That no part or parts of any existing law shall be construed * * * to prevent mem- bers of the Naval Reserve Force from being or becoming members of the Naval Militia of any State, Territory, or the District of Columbia: Provided, That such membership in the Naval Militia shall not interfere Avith the discharge of duties by such members thereof who are in the Naval Reserve Force." (Act July 11, 1919, 41 Stat., 141.) "That upon their enrollment in the Naval Reserve Force, and not otherwise, until June 30, 1922, the members of said Naval Militia shall have all the benefits, gratuities, privileges, and emoluments proAdded by law for other members of the Naval Reserve Force ; and that wdth the approval of the Secretary of the Naw, duty performed in the Naval Militia may be counted as active ser\dce for the maintenance of effi- ciency required by law for members of the Naval Reserve Force." (Act June 4, 1920, sec. 1, 41 Stat., 818.) Officers and employees of the Government who are members of the Naval Reserve Force are not entitled to military leave of absence wdth pay. in addition to their regular annual and sick leave, for the period they are on active duty with the Naval Reserve Force. (27 Comp. Dec, 214.) Members of the Naval Reserv'e Force on active duty are prohibited by the proAdsions of the act of August 29, 1916 (39 Stat., 582), from receiA dug salary of any ci\dl position they may be holding, if the combined amount of such salary and active-duty pay as members of the Naval Reserve Force exceeds the sum of §2,000 per annum, but such limitations do not apply to the retainer pay of members of the Naval Reserve Force. (27 Comp. Dec, 214.) Uniform gratuity. — "Members of the Naval Reserve Force shall, upon first reporting for acti\"e serAdce for training during each period of enrollment, be credited wdth a uniform gratuity of $50 for officers * * *. Upon reporting for active ser.dce in time of war or national emergency the uniform gratuity shall be $150 for officers * * *, or the difference 812 The Navy. PL 2. REVISED STATUTES. Sec. 1556. between these amounts and any amounts that may have been credited as a uniform gratuity during the current enrollment." (Act Aug. 29, 1916, 39 Stat., 589.) _ "The uniform gratuity for the members, other than officers, of each class of the Naval Reserve Force shall be the same as that pre- scribed for enlisted men of the NaAy, but in time of peace the Secretary of the Navy shall prescribe the portion of the clothing gratuity to be issued to such members, other than officers, of the Naval Reserve Force." (Act July 1, 1918, 40 Stat., 711.) Enlisted men of the Navy are not entitled to a credit for uniform gratuity but to clothing outfit, or, in other words, to a gratuitous issue of uniform and clothing. Therefore, what the enrolled members of the Naval Reserve Force who first reported for active service on or sub- sequent to July 1, 1918, became entitled to was not a credit for uniform gratuity but to a gratuitous issue of uniform, not to exceed §100. (25 Comp. Dec, 281.) Under the act of August 29, 1916, uniform gratuity is payable only to those members of the Naval Reserve Force whose membership is contingent upon a period of enrollment; ac- cordingly, transferred members of the Fleet Naval Reserve who are not "enrolled" and whose service is not measmed by "periods of enrollment '* are not entitled to uniform gratuity either under that act or subsequent legislation. (25 Comp. Dec, 318.) Officers of the Volunteer Naval Reserve of the Naval Reserve Force are entitled when on active duty in time of war to the unifonn gratuity of $150 provided by the act of August 29, 1916, for a full term of enrollment, notwith- standing that under said act members of the Volunteer Naval Reserve are not entitled to retainer pay or uniform gratuity in time of peace. (Comp. Dec, Aug. 7, 1917, 198 S. and A. Memo., 4332.) During the period of any "time of war or national emergency " officers of the Naval Re- serve Force who reenroU and report for active service are entitled to be credited with uniform gratuity of not to exceed $150, provided they have the required outfit of uniforms and equip- ment, and the other members of the Naval Reserve Force so reporting, following a reen- rollment, are entitled to uniform gratuity of $100. While the act of July 1, 1918, increases the amount of uniform gratuity over that pro- vided by the act of August 29, 1916, so as to entitle enrolled members other than oflicers to a uniform gratuity of $100, the latter act does not in any way repeal the provision of the act of August 29, 1916, providing under what con- ditions the gratuity is payable. The provision of the act of July 1, 1918, "shall be the same as prescribed for enlisted men of the Navy," relates only to the amount of the gratuity. (26 Comp. Dec, 1010.) A member of the Naval Reserve Force hold- ing an enlisted rating who is promoted, during the term of his enrollment and in time of war, to a commissioned rank is entitled only to the difference V>etween the amount already credited to him as uniform gratuity and the maximum allowed for active service in time of war. (24 Comp. Dec, 483.') The provision for the crediting of the uniform gratuity is a mandatory one. It is that officers shall" be credited with it "upon first report- ing for active service for training during his period of enrollment," and that said credit "shall" be $150 for said officers "upon report- ing for active service in time of war or national emergency." (25 Comp. Dec, 130, 131.) Should any member of the Naval Reserve Force sever his connection with the service with- out compulsion on the part of the Government before the expiration of his term of enrollment, the amount so credited [for uniform gratuity] shall be deducted from any money that may be or may become due him." (Act Aug. 29, 1916, 39 Stat., 589.) Members of the Naval Reserve Force "shall in time of peace, when no national emergency exists, be discharged upon their own request upon reimbursing the Government for any clothing gratuity that may have been furnished them during their current enrollment." (Act Aug. 29, 1916, 39 Stat., 587.) "That no part of the clothing gratuity cred- ited to members of the Naval Reseve Force shall be deducted from their accounts where said members accept or have accepted tem- porary appointments in the Na^^ in time of war or other national emergency." (Act July 1, 1918, to Stat., 711.) Where an ensign in the Naval Reserve Force receives an order from the Navy Department stating, ' ' You are this day discharged from the U.S. Naval Reserve Force for the convenience of the Government," and the next day accepts a commission as temporary ensign in the P^egu- lar Navj^ his connection with the service was not severed, within the meaning of the provi- sions of the act of August 29, 1916 (39 Stat., 589), directing the deduction of uniform gratuities of officers who have voluntarily severed their con- nection with said force. (Price v. U. S., 55 Ct. Cls. 499.) The act of July 1, 1918 (40 Stat., 711), pro- adding that clothing gratuity credited to mem- bers of the Naval Reserve Force shall not be deducted from their accounts where such mem- bers accept temporary appointment in the Regular Navy in time of war, would protect a member's account against checkage if such checkage had not already been made; the mere fact that his account had been checked does not deprive him of a right which would be accorded him if the account had not been checked. (Price v. U. S., 55 Ct. Cls., 499.) Travel allowance. — ' 'The Secretary of the Navy is authorized to assign any member of the Fleet Naval Reserve to active duty for training on board ship upon the application of such member * * *: Provided, That no member shall be entitled to travel allowance un- less the period of such active service is for not less than one month, or unless specifically iwo- vided for by suc^h regulations as may be ]>rc- scribed by the Secretary of the Navy." (Act Aug. 29, 1916, 39 Stat., 590.) By act of February 28, 1919 (40 Stat., 1203), it was provided that naval reservists duly en- rolled who have been honorably released from active service since November 11, 1918, or wlio may hereafter be honorably released from active service, shall be entitled to receive 813 Sec. 1556. PL 2. REVISED STATUTES. The Navy. tra\t'l i)av at the rate of five cents per mile from the'i)la^c wlierc they are released from active duty to their actual bona fide home or residence, or original nnuster into the service, at their option; but for sea traAcl, transporta- tion and subsistence only shall be furnished to enlisted men. By act of June 4, 1920 (41 Stat., 836), it was pro\-ided that any enrolled man who, since November 11 , 1918, has been or shall hereafter be discharged from any branch or class of the naval service for the purpose of re- enlisting in the Navy or Marine Corps, shall be entitled to travel pay as authorized in said act of February 28, 1919. Enlisted men of the Regular Navy, trans- ferred to the Fleet Naval Reserve after IG or 20 or more years of service, whose rating at the time of transfer entitled them to honorable^ dis- charge and who, as reservists, are not retained on active duty, are entitled at the time ol transfer to travel allowance at 5 cents per mile from the place of transfer to their actual bona fide home or residence or place of original muster into the service, at their option, as provided by the act of February 28, 1919 (40 Stat., 1203). (26Comp. Dec.,636.) An officer of the Naval Reserve Force de- tached from active duty and ordered to his home who, in proceeding to his home, delays beyond the period authorized by the Navy Regulations, is not entitled to mileage in sub- sequently performing the travel, his active duty status having terminated as of the date of detachment. (26 Comp. Dec, 639, overruled, 27 Comt). Dec, 478, noted below; see also 26 Comp. Dec, 245.) An officer of the Naval Reserve Force relieved from active duty and ordered to his home occu- pies a situation analogous to a retired naval officer released from active duty and is accord- ingly entitled to mileage to his home, provided the journey is performed in obedience to orders within a reasonable time after date of release from active dutv. (27 Comp. Dec, 478, over- ruling 26 Comp. Dec, 639.) Under the act of February 28, 1919, (40 Stat., 1203), a member of the Naval Reserve Force released from active duty in the interior of a foreign country is entitled to travel allowance at the rate of 5 cents per mile from place of re- lease to port of embarkation, transportation and subsistence for the sea travel involved, and 5 cents per mile in the United States from the port of landing to his bona tide home or resi- dence or place of original muster into the ser- vice, at his option. (26 Comp. Dec, 888.) Transferred members of the Naval Reserve Force, as well as those duly enrolled from ci\il life, are entitled to travel allowance upon hon- orable release from active duty imder the act of February 28, 1919 (40 Stat., 1203). (26 Comp. Dec, 878.) Courts-martial. — Transferred members of the Fleet Naval Reserve, when released from active duty, are entitled to ])e credited, under article 4893, Naval Instructions, 1913, with the amounts deducted from their pay on account of court-martial sentences, in the same manner as though such release from active duty were a discharge from the service. (26 Comp. Dec, 91.) But enrolled members of the Naval Re- serve Force are entitled to such credit only upon disenrollment or discharge, their release from active duty not being equivalent to a dis- charge. (26 Com)). Dec, 818.) The appropriation, "Pay, miscellaneous," is available for the payment of the cost of sub- sistence of officers of the Naval Reserve Force on inactive duty, while in confinement await- ing action of the Navy Department or awaiting trial by court-martial. (26 Comp . Dec, 884.) Deduction of pay. — Deduction of 20 cents per month for the naval hospital fund should be made from the active-duty pay of all members of the Naval Reserve Force during such time as they are on active duty, and also such deduc- tion should be made from the retainer pay of transferred members of the Fleet Naval Reserve when not on active duty. Under the act of August 29, 1916, em-olled members of the Naval Reserve Force are "subject to the laws, regu- lations, and orders for the government of the Regular Navy only during such time as they may by law be required to serve in the Navy, in accordance with their obligations, and when on active service at their own request as herein provided, and when employed in authorized travel to and from such active service in the Navy." Under the same act, " men transferred to the Fleet Naval Reserve shall be governed by the laws and regulations for the government of the Na\'y" at all times, and not merely while employed on active duty. One of the laws for the government of the Navy thus made applicable to members of the Naval Reserve Force is that providing for deduction on account of the naval hospital fund. (Comp. Dec, Dec. 27, 1916, 190 S. and A. Memo., 4121; sees. 1614 and 4808, R. S.) An em-olled member of the Naval Reserve Force holding an enlisted rating and in an active-duty status is not entitled to active-duty pay or allowance for subsistence during un- authorized a}:)sence, such case being governed by article 4425, Navy Regulations 1913 (C. N. R. 7), made applicable by act of August 29, 1916 (39 Stat., 588), to enrolled members of the Naval Reserve Force while on active duty. (Comp. Dec, June 20, 1918, 208 S. and A. Memo., 4581.) Retired pay. — Enrolled members of the Naval Reserve Force "who shall have completed twenty years of service in the Naval Reserve Force, and who shall have performed the mini- mum amount of active service requii-ed in then- class for maintaining efficiency during each term of em-oUment, shall, upon their own appli- cation, be retired with the rank or rating held by them at the time, and shall receive in lieu of any pay, a cash gratuity equal to the total amount of their retainer pay during the last term of theii' em-oUment." (Act August 29, 1916, 39 Stat., 588.) Transferred members of the Fleet Naval Re- serve "may, upon their own request, upon completing thirty years' service, including naval and Fleet Naval Reserve service, be placed on the retired list of the Navy with the pay they were then receiving plus the allow- ances to which enlisted men of the same rating are entitled on retirement after thirty years' naval service." (Act August 29, 1916, 39 Stat., 591.) 814 The Navy. Ft. 2. REVISED STATUTES. Sec. 1556. " Service in the Naw, Marine Corps, National Naval Volunteers, and Naval Militia shall be counted as continuous 8er\'ice in the Naval Reser^■e Force, both for the purpose of retire- ment and of computing retainer pay: Provided, That no member of the Naval Reserv^e Force shall be eligible for rethement other than for physical disability inciu-red in line of duty." (Act July 1, 1918, 40 Stat., 710.) Nothing contained in this act shall operate to deny to enlisted men transferred to the Naval Reserve Force after 16 years or more of naval ser\dce, their pri^dlege of retirement upon completing .30 years' naval sei"\-ice as now provided bv law. (Act Julv 1, 1918, 40 Stat., 710.) 38. Additional pay for special duty — Superintendent of Naval Academy. — "The pay of the Superintendent of the Naval School at Annapolis shall be at the rate allowed to an officer of his rank, when in ser-vice at sea." (Act Sept. 28, 1850, 9 Stat., 515.) The Superintendent of the Naval Academy, while discharging the duties of that position, is entitled to the sea pay of an officer of his rank, notwithstanding section 13 of the Na\^^ per- sonnel act of March 3, 1899 (30 Stat., "lOO?), which pro\'ides that officers of the Na\'y "when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty." The rule is applicable that a general law will not repeal an earlier special act by mere implication; and in this case the Navy personnel act is general in its pro\T.sions and does not by implication repeal special acts applicable to particular cases. (6 Comp. Dec, 885; see also 12 Op. Atty. Gen., 81; 18 Comp. Dec, 17.). Commandant of navy yard, Mare Island. — "The pay of the officer of the Na\'y assigned to the command of the na\y yard at Mare Island, California, shall be the sea pay of his grade." (Joint Res. Mar. 3, 1863, 12 Stat., 825.) The joint resolution of March 3, 1863, pro- viding that the pay of the officer of the Nav-v- assigned to the command of the Mare Island Navy Yard shall be the sea pay of his gi-ade, is not in conflict with the act of May 13, 1908, and such officer while in that command is enti- tled to the pay of his grade, fixed by said act of May 13, 1908, with 10 per cent additional al- lowed for sea duty. The requirement in said act of May 13, 1908, that estimates for "Pay of the Navy" shall hereafter show the amount allowed "for pay at sea rates to officers em- ployed on shore," e"vidently contemplates that there may be cases under the act where the ad- ditional pay for service on sea duty may law- fully be paid to officers emploved on shore. (15 Comp. Dec, 36; 18 Comp. Dec, 17.) Chief of Naval Operations, and commanding officers of fleets and squadrons. — See note above, under "Admirals; Vice Admirals." Chkfs of bureaus, assistant chiefs of bureaus, and Judge Advocate General. — See note to sec- tion 421, Re\dsed Statutes. Aids to rear admirals. — By act of May 13, 1908, it was provided that "aids to rear admirals embraced in the nine lower numbers of that grade shall each receive one hundred and fifty dollars additional per annum, and aids to all other rear admirals two hundred dollars addi- tional per annum each." (35 Stat., 128.) By act of August 29, 1916 (39 Stat., 577, 578), the number of rear admirals was increased and the designation of those in the nine lower numbers was changed to rear admirals of the lower half, and the designation of rear admirals of the first nine was changed to rear admirals of the upper half. A naval officer assigned to duty on the per- sonal staff of a rear admiral, as flag lieutenant, without any other designation, is an aid to such rear admiral and entitled to the additional pay of $200 per annum allowed to an aid of a major general in the Army. (U. S. v. Miller, 208 U. S., 32, construing the law as it existed prior to May 13, 1908, viz. Act of Mar. 3, 1899, sec. 13, 30 Stat., 1004, and sees. 1098 and 1261, R. S.) A determination of who are aids should be arrived at by a consideration of the nature and character of the duties of the officers constitut- ing the personal staff of a flag officer, and not made to depend upon whether they are techni- cally designated as aids. (U. S. r. Miller, 208 U. S., 32. )_ An aid in the Navy is an officer legally or- dered to duty with an admiral, vice admiral, or rear admiral, to perform for him strictly personal, confidential, and routine duties. These duties can not be combined with the duties of a fleet ordnance officer or a.ny other officer who has other duties to perform separate and distinct from the duties of an aid. (Knox r. U. S., 52 Ct. Cls., 22, holding that an officers' appointment as fleet ordnance officer did not constitute him an aid of the commander in chief.) No officer above the rank of lieutenant in the Na\'y is entitled to pay as an aid to a rear ad- miral under the act of May 13, 1908, fixing the pay of aids. (.Knox v. U. S., 52 Ct. Cls., 22.) Under Revised Statutes, section 1098, no officer above the rank of captain in the Army could legally become an aid to a major general. It follows (no statute or regulation having changed the qualifications of aids in the Na\^) that no officer above the rank of lieutenant m the Naw can be entitled to pay as aid to a rear admiral. Congress, in fixing the pay of aids in the Navy by the act of May 13, 1908, must have had in mind the qualifications which at that time were prescribed for aids in the Army and which up to that time had been the qualifica- tions for aids in the Navy. (Knox r. U. S., 52 Ct. Cls., 22. See also, Tompkins v. U. S., 52 Ct. Cls., 30; Helm d. U. S., 52 Ct. Cls., 32.) The proA-ision of the Navy pay act of May 13, 1908 (35 Stat., 198), considered in connec- tion with provisions of the Navy Regulations relating to the rank of "aids," is unambiguous, and entitles a naval officer with the rank of Lieutenant commander serving at sea as aid to a rear admiral of the senior nine to the additional compensation provided by the act of May 13, 1908. The Navy Regulations may designate the rank of "aids" when the statute has made appropriations for their pay. In this case the regulations then_ in force allowed an officer with the rank of lieu- tenant commander to be detailed as aid, and as he complied with the regulations^ he was entitled to the additional pay notwith- standing that at the time officers of corre- 815 Sec. 1556. Pt. 2. REVISED STATUTES. The Navy. spondijig rank in the Army were not qualified to act as aids to majors general. (Jones v. V. S., 49 Ct. Cls., IG; affirmed, Holmes v. U. S., 49 Ct. Cls., 70) Appointments as aids are, under the Navy llegulations, to be made by the Secretary of the Navy. A lieutenant in the Navy ordered by the Secretary to report to a rear admiral, commandant of a navy yard, to perform such duty as the commandant might assign him, and Avho was assigned by the coumiandant pursuant to this order of the Secretary to duty as his aid, is entitled to additional pay pro\-ided for aids to rear ad- mirals, the order of the Secretary being suf- ficient authority to the commandant to make such assignment; but the appointment of an aid by the commander in chief of a fleet is void ab initio. The regulations require that in all cases aids must be nominated to the Secretary by the officer under whom they are to serve. He could not become entitled to the additioanl pay of aid merely by being called an aid by his commanding officer or by having the word "aid" affixed to his name in the Navy Register. (Knox v. U. S., 52 Ct. Cls., 22, distinguishing Frucht v. U. S., 49 Ct. Cls., 570.) "^Tiere a lieutenant of the Na\y serves as aid to the commandant of a navy yard under section 1469, Revised Statutes, and such commandant was a rear admiral, held, that the aid is entitled to the additional pay pro- vided for by the act of May 13, 1908. In this case the Secretary of the Navy ordered the lieutenant to report to the commandant of the navy yard for such duty as the latter might assign, and the commandant, a rear admiral, detailed him to duty as his aid. (Frucht V. U. S., 49 Ct. Cls., 570.) If the commandant happens to be a rear admiral, the aid will be entitled to the addi- tional pay_pro\dded by the act of May 13, 1908, and ii the commandant happens to be an officer of inferior rank, the aid will not be entitled to such additional pay, the same incongruity appears in regard to aids for officers afloat; a rear admiral in command of a squadron is entitled to an aid who would receive the extra pay provided by the act of May 13, 1908, w^hile a captain exercising the same command would not be so entitled. (Frucht V. U. S., 49 Ct. Cls., 570.) The commanding officer of a fleet has no power to appoint an aid for a rear admiral com- manding a division; while the officer might have to obey an order of his superior officer, he is not thereby entitled to the additional pay pro\dded for those legally detailed as aids. (Knox V. U. S., 52 Ct. Cls., 22; Palmer v. U. S., 52 Ct. Cls., 31.) A lieutenant in the Navy is entitled to addi- tional pay as aid to a rear admiral during a period that he served as such aid. notwithstand- ing that upon subsequent promotion to the grade of lieutenant commander he became entitled to the rank and pay of the latter grade retroacti^•ely, covering the same period for which he had received aid's pay; Avhile he became constructively a lieutenant commander during that period, ne was not such in fact. (Downes v. U. S., 52 Ct. Cls., 237, 243, 327.) The Secretary of the Na\^'s assignment of a captain of the Na^'y to duty with the rank and title of roar admiral, by authority of section 1434, Revised Statutes, does not make such officer a rear admiral within the meaning of the law providing additional pay for aids to rear admirals. (17 Comp. Dec, 54.) A lieutenant in the Navy serving as flag secretary and aid to a rear admiral designated as commander in chief of a fleet, under the act of March 3, 1915 (.38 Stat., 941, 942), is not entitled to pay as an aid to an admiral. The designa- tion of said rear admiral as commander in chief conferred upon him the rank of admiral, ))ut did not invest him with the office of admi- ral. (21 Comp. Dec, 840.) However, an offi- cer serving as aid to a rear admiral holding the rank of admiral as commander in chief of a fleet is entitled to the additional pay allowed by law for aids to rear admirals. (Comp. Dec, Oct. 13, 1915, 176 S. and A. Memo., 3810.) An officer of the Navy serving as aid to the Admiral of the Navy is not entitled, under the assimilating pro^^sions of section 13 of the Navy personnel act of March 3, 1899 (30 Stat., 1007), to higher rank and pay as provided by section 1096, Re\Tsed Statutes, for aids to the General of the Army. That section had ceased to exist as the result of the nonexistence of the grade of General of the Army years before the re-cre- ation of the office of Admii-al in 1899. Further- more, Congress in the Na\'y pay act of May 13, 1908 (35 Stat., 127), in terms specifically pro- vided for the pay of every officer in the Navy, including the Admiral and embracing extra compensation to aids to rear admirals, making no proA-isions whatever for compensation for services which might be rendered by an officer acting as aid to the Admiral. The incongi-uity, if any, which might result from providing for extra compensation for an aid to a rear admiral, and not for aids to the higher officer, the Admiral, would be but the conseq^uence of legislative omission, and would not justify to exertion of judicial power for the purpose of re-creating a provision of law concerning aids to the General of the Army which has long since ceased to exist, in order to afford a subject upon which the assimilating provision of the Navy personnel act of 1899 might operate. (Wood V. U. S., 224 U. S., 132. See also Caldwell, V. U. S., 44 Ct. Cls., 604; Wood v. U. S., 44 Ct. Cls., 611.) An officer of the Navy detailed to duty as aid to the Chief of Naval Operations is not entitled, while so serving, to the additional pay pro\dde(i in the act of May 13, 1908, for aids to rear ad- mii'als, although the Chief of Naval Operations holds the oftice of rear admiral in the Navy and has the rank but not the office of Admiral while so serving. This case differs from one in which an officer is expressly ordered to duty as aid to a rear admu-al, in that here the officer's orders were to duty as aid to the Chief of Naval Op- erations and not as aid to a rear admiral. (24 Comp. Dec, 190.) Under section 1262, Revised Statutes, and the act of June 30, 1882 (22 Stat., 118), an aid to a rear admiial is not entitled to have his longevity pay calcidated upon the additional pay which he receives as aid, that being, under section 1261, Revised Statutes, an allowance 816 The Navy. Pt. 2. REVISED STATUTES. Sec. 1556. in addition to and not a part of the pay of his rank. (U. S. v. Miller, 208 U. _S., 32.) A lieutenant in the Navy serving as aid to a rear admiral was entitled, under the Navy personnel act of March 3, 1899, to the additional $200 allowed to a lieutenant serving as aid to a major general, under section 1261, Revised Stat- utes, but not to the mounted pay allowed to the Army lieutenant serving as such aid under section 1301, Army Regulations. (U. S. v. Crosley, 196 U. S., 327.) An officer of the Navy is entitled to the addi- tional pay allowed an aid when said officer enters upon duty under proper designation as aid to a rear admiral, and is entitled to such pay while on authorized allowanceof leave if, during such leave, his designation as aid remains unchanged. (17 Comp. Dec, 104.) For other cases, see note to section 1469, Revised Statutes. Aviation duty. — By act of March 3, 1915 (38 Stat., 939), it was pro-sided that "hereafter officers of the Navy and Marine Corps appointed student naval aviators, while lawfully detailed for duty involving actual flying in air craft, including balloons, dirigibles, and aeroplanes, shall receive the pay and allowances of their rank and service plus thirty- five per centum increase thereof; and those officers who have heretofore qualified, or may hereafter qualify, as naval aviators, under such rules and regula- tions as have been or may be prescribed by th^ Secretary of the Navy, shall, while lawfully detailed for duty involving actual flying in air craft, receive the pay and allowances of their rank and service plus fifty per centum increase thereof * * *: Provided, That not more than a yearly average of forty-eight officers * * * of the Navy, and twelve officers * * * of the Marine Corps, de- tailed for duty involving actual flying in air craft, shall receive any increase in pay while on duty involving actual flying in air craft, nor shall any officer in the Navy senior in rank to commander, nor any officer in the Marine Corps senior in rank to major, receive any in- crease in pay or allowances by reason of such de- tail or duty. " By act of August 29, 1916 (39 Stat., 582, 586), it was provided that "the officers detailed and the enlisted men of the Naval Flying Corps shall receive the same pay and allowances that are now provided by law for officers and en- listed men of the same grade or rank and rating in the Navy and Marine Corps detailed to duty with aircraft involving actual flying"; that "officers and enUsted men, while detailed as student aviators and student airmen involving actually flying in aii'craft, shall receive the same pay and allowances that are now pro\ided by law for officers and enlisted men of the same grade or rank and rating in the Navy detailed for duty with aircraft '' ; "that student flyers ap- pointed by the Secretary of the Navy, during a period of four years following said act, for in- struction and training in aeronautics '"shall receive the same pay and allowances as mid- shipmen at the United States Naval Academy " ; and that "student flyers shall, after receiving a certificate of qualification as an aviator for actual flying in aircraft, rank with midshipmen and shall receive the same pay and allowances as midshipmen, plus fifty per centum thereof." By act of July 1, 1918 (40 Stat., 718), it was provided that thereafter the "allowances" of "officers, enlisted men, and student flyers of the naval service shall in no case be increased by reason of the performance of aviation duty. " Flights performed by an officer of the Navy prior to receipt of orders to duty involving actual flying in aircraft do not constitute duty performed under a lawful detail, and therefore do not entitle the officer to the increased pay and allowances authorized by the act of March 3, 1915. (26 Comp. Dec, 93.) An officer designated as naval a\iator on the date that he qualified as such is entitled to the increased pay authorized by the act of March 3, 1915, from the date of such designation, and not merely from the date that the designation was received by him. (Comp. Dec, Jan. 30, 1917, 191 S. and A. Memo., 4149.) If in point of fact an officer was engaged under proper orders in actual flying at the time an order was issued by the Secretary of the Navy detaihng him to duty involving actual flying in heavier-than-air craft, and prior to receipt by him of said detail, he is entitled to the addi- tional pay provided for such duty from the date the detail was issued. (Comp. Dec, Apr, 14, 1913, 146 S. and A. Memo., 2483.) Officers and enlisted men of the Navy who are properly detailed, under the act of March 3, 1915 (38 Stat., 928, 939), for duty involving actual flying in aircraft, are entitled to the addi- tional pay provided in that act wlrile on author- ized leave of absence within the period of such detail. (22 Comp. Dec, 292; see also, 23 Comp. Dec, 589; 24 Comp. Dec, 232.) An officer of the Army detailed for duty re- qiuring him to make regular and frequent aerial flights is entitled to the increased pay author- ized for such duty during the period he is dis- abled by reason of injuries received in the line of duty as aviator. (25 Comp. Dec, 50.) The detachment from duty involving actual flying of a student naval aviator because of in- juries received in line of duty implies a cessa- tion of such duty for an indefinite period and terminates the right to the additional pay pro- vided therefor while the officer is undergoing treatment. (25 Comp. Dec, 872.) An officer of the Navy detailed to duty in- • volving actual flying in aircraft is not entitled to the additional_ pay provided for that duty during a period in which such duty was not performed by him, notwithstanding that he was prevented from performing suchduty during said period because of his being interned in a neutral country or held prisoner by the enemy. (25 Comp. Dec, 169; but see decision of Court of Claims, noted below.) An officer of the Navy detailed as a student aviator is not entitled to the additional pay provided for aviation duty during a period that he was not performing duty involving actual flying, not\vithstanding that he was prevented from performing such duty during said period because of conditions directly resulting from a hurricane and over which he had no control. (Comp. Dec, Aug. 8, 1917, 198 S. and A. Memo., 817 Sec. 1556. Ft. 2. REVISED STATUTES. The Navy. 4334 ; but see decision of Court of Claims, noted below.) In any case where an officer or enlisted man detailed to duty involving actual flying in air- craft is not engaged in actual flying for an un- reasonable period after his order of detail, pay- ment of the additional pay provided in the act of March 3, 1915, is not authorized. As to what would be considered by the Comptroller of the Treasury as such an "unreasonable time" would depend upon the facts in each particular case. (23 Comp. Dec, 589; but see decision of Court of Claims, noted below.) An oflicer detailed by the Secretary of the Navy to duty involving actual fljang in aircraft, as shown by said detail, is not entitled to the additional pay provided by law for officers so detailed, unless in the opinion of the Comp- troller of the Treasury "the duty which the order was for in fact included actual fljdng." The Comptroller of the Treasury holds that it is the duty of his office to determine in any case whether or not the duty to which an officer of the Navy is detailed by the Secretary of the Navy involves actual flying in aircraft, and that the question of jurisdiction raised by the Sec- retary of the Navy is one which can be decided only by the comptroller. The Comptroller of the Treasury regards loss of life in the perform- ance of duty for which the additional pay is given aa evidence which would certainly pass through his office the accounts of an officer for additional pay for any period within reason prior to his death. (24 Comp. Dec, 11; but see decision of Court of Claims, noted below.) Under the act of March 3, 1915 (38 Stat., 939, 940), an enlisted man of the Nayy is entitled to the additional pay allowed by law "while de- tailed for duty involving actual flying in air- craft." The pay is not made dependent upon the number of flights while on such duty, but is made dependent on the detail to such duty. Congress did not fix the pay on the number of times an enlisted man actually flew, nor on the number of davs he was engaged in actual flying. When, therefore, he was lawfully detailed to duty involving actual fl.ydng in aircraft he must be regarded and treated as entitled to the con- sequences of such detail and to the pay pro- \'ided for such duty. (Luskey v. U. S., Ct. Cls. No. 34241, decided Nov. 7, 1921, overruling contrary decisions of the Comptroller of the Treasury, noted above.) An officer of the Navy ordered to perform duty as student naval aviator in addition to his regular sea duty is entitled, if he performs actual flights under said detail, to the 35 per cent increase in shore pay only from the time he reported for such duty until he left the station to return to his ship, such increase not to be computed on his increase for sea duty nor on his allowances. \\Tiere the orders do not ex- pressly impose the continued discharge of sea duty, but state that the fljang duty is not to interfere with duties already assigned, the pre- sumption is that the shore duty is temporary and additional to the regular duty, and there- fore the officer is entitled to sea duty pay while performing said temporary duty. (26 Comp. Dec, 93.) Shore duty beyond sca^. — "All officers on sea duty and all officers on shore duty beyond the continental limits of the United States shall while so serving receive ten per centum additional of their salaries and increase as above provided, and such increase shall commence from the date of reporting for duty on board ship or the date of sailing from the United States for shore duty beyond the seas or to join a ship in foreign waters." (Act May 13, 1908, 35 Stat., 128. The words "as a])ove provided" refer to the rates of pay for the various ranks as prescribed by the act of May 13, 1908, and wliich are set "forth above in the notes under this section.) The additional pay pro\dded by the act of May_ 13, 1908, for shore duty beyond seas, applies to commissioned officers only; mid- shipmen and warrant officers are not entitled to such increase. (14 Comp. Dec, 882; see also Olliff V. U. S., 46 Ct. Cls., 349; compare Prindle v. U. S., 41 Ct. Cls., 8.) As to addi- tional pay allowed warrant officers for foreign shore duty, see act of July 11, 1919 (41 Stat., 140), noted above under "Warrant officers, acting warrant officers, and commissioned warrant officers . ' ' The act of March 2, 1901 (31 Stat., 903), relating to the Army, provided that "here- after the pay proper of all officers and en- listed men serving beyond the limits com- prising the Union and Territories of the United States contiguous thereto shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for time of peace, and the time of such serWce shall be counted from the date of departure from said States to the date of return thereto." (See also act of June 30, 1902, 32 Stat., 512, to same effect.) The act of March 3, 1901 (31 Stat., 1108), relating to the naval service, provided that "officers of the Navy and officers and enUsted men of the Marine Corps who haA'e been detailed or may hereafter he de- tailed for shore duty in Alaska, the Philip- pine Islands, Guam, or elsewhere beyond the continental limits of the United States shall be considered as having been detailed for ' shore duty beyond seas ' and shall receive pay accordingly, with such additional pay as may be pro\aded by law for ser\ice in island possessions of the United States." The act of March 3, 1899 (30 Stat., 1007), provided that "when naA'al officers are de- tailed for shore duty beyond seas they shall receive the same pay and allowances as are or may be provided by or in pursuance of law for officers of the Army for duty in similar places." Under these laws it was held, in McCully V. U. S. (42 Ct. Cls., 275), that an officer of the Navy detached from shore duty beyond seas and ordered home continues to be entitled to his ten per cent increase until his return to the United States. The act of May 13, 1908, does not change the law as it previously existed so as to deprive naval officers of the right to increased pay while returning home upon orders from foreign stations. Said act expressly provides that "nothing herein shall be so construed as to reduce the pay or allowances now authorized by law for any commissioned, warrant, or appointed officers, or any erdisted man of 818 The Navy. PL 2. REVISED STATUTES. Sec. 1556. the active or retired lists of the Navy, and all laws inconsistent with this pro^•ision are hereby repealed." Taking into considera- tion the clause last quoted, and the legisla- tive proceedings, which show that it was the intention of Congress in the act of May 13, 1908, to place officers of the Ai-my, Navj^, and Marine Corps exactly on the same basis as to pay, and not to make an unjust discrim- ination between such officers, held, that offi- cers of the Navy are still entitled to the bene- fit of the act of March 2, 1901, so far as relates to the length of time dm'ing which they are entitled to the increased 10 per cent of pay for shore duty beyond seas. (Gearing v. U. S., 46 Ct. Cls., 187.) The decision of the Court of Claims in the Geai-ing case related to an officer who en- tered the Navy prior to the passage of the act of May 13, 1908, and is not, therefore, decisive of the question presented in the case of an officer who entered the ser\ice after that date. Nevertheless, held, that officers of the Navy appointed after said act, and who are detailed for shore duty beyond seas, are entitled to retain the 10 per cent addi- tional pay until their arrival in the United States. There is nothing in the act of May 13, 1908, which requires that said additional pay shall cease upon their detachment from foreign duty, and the reasonable inference fi-om the language used is that Congress in- tended, when it said that this increased pay should commence from the date of sailing from the United States, that the point of departtu-e from the United States, indicated as the beginning point for the increased pay, should be the terminating point for increased pay upon retiun. (Comp. Dec, Jan. 24, 1914, 155 S. and A. Memo., 2962.) Prior to the act of March 2, 1901 (31 Stat., 903), Army officers were not allowed the extra pay pro^'ided for foreign service from the date of depaitiue from the United States to the date or return thereto; and the same was true as to naval officers recei\ing Army pay under the act of March 3, 1899. (Mc- Gowan v. U. S., 49 Ct. Cls., 454, citing 6 Comp. Dec, 947, and 7 Comp. Dec, 670.) WTiere an officer of the Navy was detailed to sea duty which necessitated a journev by sea on a merchant vessel to reach the place ap- pointed for such duty, he is not an officer "de- tailed to shore duty beyond seas" within the meaning of section 13 of the Navy personnel act of March 3, 1899 (30 Stat., 1007). Although his duty during such voyage on a merchant vessel was not sea duty and did not entitle him to sea pay, neither was it shore duty beyond seas, first, because he was not ordered to per- form the latter dut\% and second, because he never actually performed any such duty re- gardless of h^ detail. The statutes made it ordinary shore duty. (McGrowan v. U. S., 49 Ct. Cls., 454.) The claim of an officer detached from sea duty abroad for additional pay for performance of shore duty beyond seas while in Manila waiting for the Army transport in which he was to take passage back to the United States, and his claim for sea-duty pay while aboard said vessel en route to the United States, is governed by the decision in Farenholt v. U. S. (42 Ct. Cls., 114, noted below). (McDonald v. U. S., 48 Ct. Cls., 123; see also note to sec. 1571, ■RON The act of May 13, 1908 (35 Stat., 128), pro- vides that all officers on sea duty and all officers on shore duty beyond the continental limits of the United States shall receive 10 per cent additional pay from the date of reporting for duty on board ship or of sailing from the United States; but it also pro\-ides that nothing shall be construed so as to reduce the pay or allow- ances then authorized by law for officers and enlisted men. The first provision of the said act was intended to assimilate the pay of all officers of the Army and Navy performing simi- lar duty in similar circumstances, but the second pro\-ision saves to all officers any legisla- tive discrimination theretofore existing and preserves intact the pay and allowances exist- ing at the time of the passage of the act of 1908. (McDonald v. U. S., 48 Ct.tls., 123.) The act of March 2, 1901 (31 Stat., 903), fol- lowed by the act of March 3, 1901 (31 Stat., 1108), pro\ided in terms for extra pay for shore duty beyond the limits of the United States and expressly applied to the accounting thereof "from the date of departure from said States to the date of retm-n thereto. " In ]\IcCully v. United States (42 Ct. Cls., 275) these statutes were appUed to naval officers on shore duty be- yond seas, under the assimilating clause of the act of March 3, 1899, section 13 (30 Stat., 1007). It follows that the act of May 13, 1908, saves to officers of the Naw for shore dutj'- beyond seas the pay fixed by the foregoing enactments. In Gearing v. United States (46 Ct. Cls., 187) it was held that the act of May 13, 1908, did not repeal the statutes upon which the McCully case was based. (McDonald v. U. S., 48 Ct. Cls., 123.) Officers of the Navy are entitled to the 10 per cent increase authorized for shore duty be- yond the continental limits of the United States while on duty at_ the naval station Hawaii, and while returning to the United States from such duty. The Army act of August 24, 1912 (37 Stat., 576), providing that "hereafter the laws allowing increase of pay to officers and enlisted men for foreign ser^dce shall not apply to ser\ice in the Canal Zone, Panama, Hawaii, or Porto Rico, " does not apply to officers of the Navy who derive their right to additional pav for shore duty beyond seas from the act of Mav 13, 1908. (22 Comp. Dec, 35.) Shore duty beyond seas is exceptional duty, both as to officers of the Army and Navy, and a naval officer must be "detailed for shore duty beyond seas" before he can "receive the same pay and allowances as are or may be provided by or in pursuance of law for officers of the Army detailed for duty in similar places, " as prescribed by the Navy personnel act of March 3, 1899, section 13. (Ackley v. U. S., 40 Ct. Cls., 216.) An officer of the Navy assigned by proper authority to sea duty on a vessel at Guam can not be considered as "detailed for shore duty beyond seas" within the intent of the Navy personnel act of March 3, 1899, section 13 m Stat.. 1007), and the act of March 3, 1901 (31 819 Sec. 1556. PL 2. REVISED STATUTES. The Navy. Stat., 1108), because the governor of (uiam, by a verbal order, directed him to do duty on shore. (Furlong v. U. 8., 45 Ct. Cls., 49:^.) Duty performed on sliore by a naval oflicer without naving been detailed for shore duty must be regarded as temporary service per- formed while he otlicially remains on board thc^ vessel to wliieli he is attached. The service of a naval ofiic(>r on shore duty beyond seas is exceptional service; to entitle liitn to the extra {)ay tlierefor he must show that he A\as detailed or such service. (Furlong v. U. S., 45 Ct. Cls., 49;^.) Tlie naval personnel act of March 3, 1899, section \?>, alloAving certain oflicers of the Navy the same pay and allowances as officers of corresponding rank in the Anny, did not entitle oflicers of the Navy, for services on naval vessels in Philippine and Chinese waters, or be>'ond the limits of the States comprising the Union, to the 10 per cent additional pay giAen to Army officers under the acts of May 2fi, 1900 (31 Stat., 211), and March 2, 1901 (.31 Stat., 903). Wliile the inten- tion of Congress in the personnel act was to put officers of corresponding rank in the Army and Navy on the same general footing with respect to their general pay and to make the act prospective in its application to any future legislation by which the general pay of Army officers might be increased. Congress may increase the pay of Army oflicers for services in particular places and under special cir- cumstances without thereby intending such increase to apply to naval officers. (U. S. V. Thomas, 195 U. S., 418.) A naval officer performing sea service in foreign waters was not entitled by the Navy personnel act to the increased 10 per cent of pay given Army officers for like duty. Only shore' duty beyond seas entitled Navy oflicers to such increased pay. (U. S. v. Thomas, 195 U. S., 418, reversing Thomas v. U. S., 38 Ct. Cls., 719; see also Thomas v. U. S., 38 Ct. Cls., 113.) Under the Navy personnel act, section 13 (30 Stat., 1007), and the act of May 26, 1900 (31 Stat., 211), and the act of March 3, 1901 (31 Stat., 1108), an officer .of the Navy on shore duty in the Philippine Islands was entitled to the increased pay allowed for shore duty '-beyond seas." The Philippine Islands is "beyond seas" within the mean- ing of these statutes. (Irwin v. U. S., 38 Ct. Cls., 87.) The words "pay proper" in the act of May 26, 1900 (31 Stat., 211), includes longe\dty pay, and the increased pay allowed for sliore duty in the Philippine Islands should be computed accordingly. (Irwin v. U. S., 38 Ct. Cls., 87; McCuUy v. U. S., 42 Ct. Cls., 275.) The term "beyond seas" generally means out of the Kingdom of England; out of the United States; out of a State. The term must receive the legal interpretation usually given to it in this country and in England, unless there is an indication to the contrary. When the act of May 26, 1900 (31 Stat., 211), w^as passed the Philippine Islands were un- equivocally "beyond seas" \vithin the mean- ing of the act of March 3, 1899 (30 Stat., 1007), as the treaty under which it became a pos- session of the ITnited States had not then been ratified. (Irwin v. U. S., 38 Ct. Cls., 87.) Service in Alaska is "shore duty beyond the continental limits of the United States," and an oflicer performing service there is entitled to the increased pay provided for such service under the act of May 13, 1908 (37 Stat., 128), and the act of IMarch 3, 1901 (31 Stat., 1108). (Downey v. U. S., 50 Ct. Cls., 273.) Where an assistant surgeon in the Navy performed shore duty beyond seas, at a naval hospital in the Philippine Islands, pursuant to an order detailing him for such duty, he was entitled to 10 per cent additional com- pensation calculated on the basis of his maxi- mum pay. The Philippine Islands constitute a "foreign station" for the purpose of extra pay under the act of May 26, 1900 (31 Stat., 211), which was in force when he performed such duty. (Thompson v. U. S., 49 Ct. Cls., 459.) The duty status of an officer serving beyond seas remains the same for all purposes until his return home. His detachment from ser\dce be- yond seas does not take effect until his return; and his duty status continues during delay in returning, if such delay was allowed as leave of absence and he was entitled to such leave by law. The permission given to the officer in this case, to delay two months in returning to the United States, in effect and as a matter of fact gave him a leave of absence for sixty days. (Izard V. U.S., 48 Ct. Cls., 367. Under prior laws it had been held that officers were entitled to the increased pay only while performing shore duty beyond seas, and not while in transi- tu or sick in hospital abroad. See Farenholt v. U. S., 42 Ct. Cls., 114; Thompson v. U. S., 49 Ct. Cls., 459.) A naval officer ordered to a hospital for treat- ment while waiting the arrival of a vessel to which he was to be attached will not be entitled while in hospital to shore duty pay "beyond seas," under the Navy personnel act, section 13. (Ackley v. U. S., 40 Ct. Cls., 216.) An officer of the Navy while on shore duty beyond seas is entitled when on leave of ab- sence taken abroad to the increased pay pro- \dded for such duty by the act of May 13, 1908. (19 Comp. Dec, 608.) A naval officer granted leave of absence from shore duty beyond seas is entitled to the addi- tional pay provided for such duty while en route to the United States and during the period of his return therefrom to his post of duty, but is not entitled to such pay while in theUnited States. (21 Comp. Dec, 604.) The Comptroller of the Treasury has re- peatedly held that an officer is not entitled to additional pay for service beyond seas while in the United States, whether on temporary duty or on leave. (Comp. Dec, Jan. 17, 1916, 179 S. and A. Memo., 3870.) When a naval officer on sea duty is ordered to certain duty on shore beyond seas, which duty is described in his orders as being a,dditional but which, in fact, requires his attention to the exclusion of all other duty, he is to be regarded, for purposes of pay and allowances, as being on shore duty beyond seas during the period of 820 The Navy. PL 2. REVISED STATUTES. Sec. 1556. such duty. (21 Comp. Dec, 604); but his sea- duty status continues, and he does not become an officer sen'ing on shore duty beyond seas unless he can establish as a matter of fact that the duties performed by him on shore were paramount to his assignment to sea service. (Leach v. U. S., 44 Ct. Cls., 132; see also Fur- long ('. U. S., 45 Gt. Cls., 493.) An officer of the Navy detached from a ship in foreign waters and ordered to duty at a foreign station is not entitled to traveling expenses while awaiting transportation to his station nor to the 10 per cent additional for sea duty while en route to his station on board a Government vessel. (Comp. Dec, June 30, 1916, 184, S. and A. Memo., 4007.) The law makes no provision for 10 per cent increase of naval officers' pay while traveling from shore duty beyond seas to join a \'essel in foreign waters, or \ice versa. (Comp. Dec, June 24, 1913, 148 S. and A. Memo., 2662.) An officer of the Navy who is ordered from foreign shore dutv to duty on board a vessel in a United States port is entitled to the 10 per cent additional pay for shore duty beyond seas to the date of his return to the United States. (Comp. Dec, Nov. 20, 1916, 189 S. and A. Memo., 4094.) Sea duty. — See note to section 1571, Revised Statutes. Acting as pay officer. — See sections 1381 and 1564, Revised Statutes. 39. Longevity pay. — "There shall be al- lowed and paid to each commissioned officer be- low the rank of rear admiral ten per centum of his current yearly pay for each term of five years service in the Army, Navy, and Marine Corps. The total amount of such increase for length of service shall in no case exceed forty per centum of the yearly pay of the grade as proxdded by law: Provided, That the annual pay of captain shall not exceed five thousand dollars per annum; of commander, four thousand five hundred dollars per annum, and of lieutenant commander, four thousand dollars per annum." (Act May 13, 1908, 35 Stat., 128. As to tempo- rary increases in pay of the grades specified, see notes above, under this section.) As to longevity increases in pay of commis- sioned warrant officers, warrant officers, mates. Dental Corps, and Naval Reserve Force, see notes above with reference to those specific classes. "For the purposes of computing longevity pay, and retirement privileges of officers and enlisted men of the Navy, all creditable service in the Coast Guard and former Revenue-Cutter Servdce shall be counted." (Act June 4, 1920, 41 Stat., 835.) "Hereafter longevity pay for officers in the Army, Navy, Marine Corps, Coast Guard, Pub- lic Health Service, and Coast and Geodetic Survey shall be based on the total of all service in any or all of said services." (Act May 18, 1920, sec. 11, 41 Stat., 604.) "All officers of the Navy shall be credited with the actual time they may have served as officers or enlisted men in the Regular or Volun- teer Army or Navy, or both, and shall receive all the benefits of such actual service in all re spects in the same manner as if all said service had been continuous and in the Regular Navy in the lowest gi-ade having graduated pay held by such officer since last entering the service." (Act Mar. 3, 1883, 22 Stat., 473.) "All officers who have been or may be ap- pointed to any corps of the Navy or to the Marine Corps after service in a different corps of the Navy or of the Marine Corps shall have all the benefits of their previous service in the same manner as if said appointments were a reentry into the Navy or into the Marine Corps." (Act June 10, 1896, 29 Stat., 361.) "Officers who have been,- or may be, trans- ferred from the volunteer service to the Regular Navy shall be credited Avith the sea service performed by them as volunteer officers, and shall receive all the benefits of such duty in the same manner as if they had been, during such service, in the Regular Navy." (Sec. 1412, "RON By act of March 3, 1899 (30 Stat., 1007), it was provided that "all officers, including warrant officers, who have been or may be ap- pointed to the Na\'y from civil life shall, on the date of appointment, be credited for com- puting their pay, with five years' service." By act of March 4, 1913 (37 Stat., 891), it was provided that this provision "shall not apply to any person entering the Navy from and after the passage of this act." "Hereafter the service of a midshipman at the United States Naval Academy, or that of a cadet at the United States Military Academy, who may hereafter be appointed to the United States Naval Academy, or to the United States Military Academy, shall not be counted in computing for any purpose the length of service of any officer in the Navy or in the Marine Corps." (Act Mar. 4, 1913, 37 Stat., 891.) The act of March 3, 1883 (22 Stat., 473), en- titles an officer to be credited with actual serv- ice only, and does not include constructive service credited to an officer under a special act of Congress. (Laws v. U. S., 27 Ct. Cls., 69.) Longevity pay is to be computed, except where the statutes otherwise provide, from the date the officer's commission was signed by the President, and not from an antecedent date mentioned in the body of the commission. Under section 1556, Revised Statutes, the right of naval officers to the longevity pay provided therein depends upon the words "date of com- mission" as used in that section; and the legal construction to be given to those words is the date when the instrument was executed; the President for other purposes may insert an ante- cedent date in the body of a commission; but antecedent date can affect an officer's pay oidy in the cases authorized by statute. (Young v. U. S., 19 Ct. Cls., 145.) The words "current yearly pay," as em- ployed in Revised Statutes, section 1262, were construed in United States v. Tyler (105 U.S., 244) to require that the calculation of longevity pay should be made, not upon the sum of the loase pay but on the base pay and previous longevity increases thereof . Subsequently, by the act of June 30, 1882 (22 Stat., 118), Congress expressly dhected that the longevity increases provided in section 1262 should be computed "on the yearly pay of ihe grade." This act was passed for the purpose of commanding a method of computation which would render 821 Sec. 1556. Pt. 2. REVISED STATUTES. The Navy. inapplicable the construction adopted in the Tyler case (citing U. S. v. Miller. 208 V. S., 32, 38). Thereafter the lonsrevity pay of Army officers was computed by the method directed in the act of 1882. lu view of the purpose of Conpress to equalize, as far as possible, tne pay of Army and Xavy ofiicei-s, manifested by the adoption of the XaAy pei-sonnel act of 1899 and in all subsequent legislation as to such pay, held, that the act of ^fay 13, 1908 (35 Stat., 127, 128), providino; longevity increases for Na^'y officers based upon their '"'current vearly pay," was intended to pro^•ide that the longevity in- crease therein prescril)ed should be computed according to the method then prevailing; that is, upon the "yearly pay of the grade," and not upon the "cvurent yearlv pav" as construed in the Tvler case. (Plumrner v. U. S., 224 U. S., 137.) ' The words "officers or enlisted men in the Regular or Volunteer Anuy or Navy, or both," as used in the law relating to longevity of officers of the Na^y (see act of Mar. 3, 1883, above quoted), were intended to include all men regularly in the ser-\ace in the Army or Na\'y : the expression" officers or enlisted men," is not to be construed distributively, as re- quiring that a person should be an enlisted man. or an officer nominated and appointed by the President, or by the head of a department, but was meant to include all men in service, either by enlistment or regular appointment in the Army or Navy; the word "officer" is used in the statute in a more general sense. (U. S. V. Hendee, 124 U. S., 309, 313, followed in U. S. V. Cook, 128 U. S., 254, 257.) An officer of the Navy is entitled under the act of March 3, 1883, to credit for ser\dce ren- dered by him as a pa\Tnaster's clerk in com- puting his longe\ity pay, although siich pay- master's clerk, under the law as it then existed, was neither an enlisted man nor an "officer" in the constitutional sense. (U. S. v. Hendee, 124 U. S., 309, distinguishing U. S. v. Mouat, 124 U. S., 303.) _ Service as a midshipman at the Naval Acad- emy was service as an officer of the Navy, and should be credited to an officer of the Na\'y in computing his longevity pav under the act of March 3, 1883. (U. S. v. Baker, 125 11. S., 646; see also U. S. v. Cook, 128 U. S., 254; U. S. v. Morton, 112 U. S., 1; U. S. v. Watson, 130 U. S., 80; but see act ^lar. 4, 1913, quoted above, with reference to midshipman service.) An officer who was not in the Navy on the date of the act (^lar. 4, 1913) abolishing, under certain conditions, credit for constructive serv- ice, but who was appointed to the Na\y^ after that date, is entitled to credit for prior service, both actual and constructive, based upon a for- mer appointment to the Navy. The said act did not deprive officers then in the Navy, or thereafter reappointed, of credit for such serv- ice previously earned. (22 Comp. Dec, 542; see also, 24 Comp. Dec, 168, 24 Comp. Dec, 629, and 204 S. and A. Memo., 4505.) Service by an officer of the Navy as an en- listed man in the Marine Corps is to be credited to him in calculating his longevity pav under the act of March 3, 1883. (U. S. v. Dunn, 120 U. S., 249.) The word "service" in section 1262, Revised Statutes, providing increased pay for officers of the Army "for each term of five years of serv- ice," e\'identlv means "militarv service." (U. S. V. La Tourrette, 151 U. S., 572.) An aid to a rear admiral is not entitled to have his longevity pay calculated upon the additional pay which he receives as aid, that being an allowance in addition to and not a part of the pav of his rank. (U. S. v. Miller, 208 U. S., 32.) A retired officer of the Navy is not entitled, in computing his longe\'ity pay, to credit for service rendered after his retirement. (Roget V. U. S., 148 U. S., 167; see also, Thornlev v. U. S., 113 U. S., 310; Faust v. U. S., 42 Ct. Cls., 94; 15 Comp. Dec, 76/; compare, U. S. v. Tyler, 105 U. S., 244; 5 Comp. Dec, 809; and see notes to sees. 1588 and 1592, R. S., as to lon- gevity increases of retired officers under later laws.) An officer of the Regular Navy who was cred- ited, under the act of March 3, 1883, with prior ser\'ice rendered by him in the Volunteer Navy is not entitled to receive the pay of higher grades in the Naw from the dates that he might have been promoted to such grades had he en- tered the Regular Navy when he entered the Volunteer Nav-y, and had he been promoted from time to time under the rule of promotion provided by law for the Regular Navy; the court can not concur in the contention of such officer that under the act of 1883, officers in his situation, while denied rank and commissions under the statute, have the right to the pay of the se^"eral grades they might have reached if their appointments in the Regular Navy are treated as having been made at the date of their entry into the volunteer ser^'ice. (Barton v. U. S., 129 U. S., 249.) As to the method of computing longe^dty increases under the act of March 3, 1883, in the cases of officers recei"ving graduated pay under section 1556, Revised Statutes, see United States V. Mullan (123 U. S., 186), United States V. Green (138 U. S., 293), United States v. Alger (151 U. S., 362), United States v. Alger and United States v. Stahl (152 U. S., 384), United States V. Rockwell (120 U. S., 60), White v. United States (191 U. S., 545), United States v. Foster (128 U. S., 435). For other cases, as to what time coimts as service in the Navy, see note to section 14-13, Re\ised Statutes, and see Bvrnes v. United States (26 Ct. Cls., 302), and "Davis v. United States (28 Ct. Cls., 21). The act of March 3, 1883 (22 Stat., 473), is not limited to officers who had entered the Navy more than once, but applies also to officers who have served continuously; when such an officer enters the serA-ice only once, his first entry is also his last entrv within the meaning of the statute. (Mullan" t'. U. S., 123 U. S., 186.) Where an oflicer resigns one office the day before his appointment to a higher one, in sub- stance and in law his actual serAdce was for a continuous period and not for two different periods. (IT. S. r. Alger, 151 U. S., 362; U. S. V. Stahl, 151 U. S., 366; U. S. v. Alger, 152 U. S., 384.) 822 The Navy. Pt. 2. REVISED STATUTES. Sec. 1556. Where at the time of resigning from the Navy it is the intention and pm-pose of an officer to reenter the service, and as soon aa he can do so thereafter he does reenter the service, such last appointment is not "from civil life" as con- templated bv section 13 of the Navy personnel act of March 3, 1899. (Barber v. it. S., 50 Ct. Cls., 250. See also U. S. v. U. S. Fidelity and Guaranty Co., 244 Fed. Rep., 310.) The reinstatement of an officer, pursuant to a special act of Congress, is not an appointment from civil life entitling him to credit for con- structive ser-\dce under the act of March 3, 1899, section 13. (Stirling v. U. S., 48 Ct. Cls., 386.) The credit of five years' constructive sei'vice under the act of March 3, 1899, section 13, is in addition to actual service rendered under a previous appointment. (Guilmette r. U. S., 49 Ct. Cls., 188; 52 Ct. Cls., 219.) Where the resignation of an officer of the Navy is in good faith, and he is thereafter appointed to serve in the Navy, such latter appointment is from civil life and he is entitled to credit for five years' constructive ser\'ice. (Guilmette v. U. S., 49 Ct. Cls., 188, 52 Ct. Cls., 219.) Where an officer was rated as an appointee from ci\T.l life and for a number of years paid accordingly, he is entitled to retain the pay so allowed until the date his rating was corrected, although under the correct interpretation of the law he was not appointed from civil life. (U. S. V. U. S. Fidelity and Guaranty Co., 244 Fed. Rep., 310.) 40. Absence from duty. See notes above, under "Mates"; "Warrant officers, acting war- rant officers, and commissioned warrant officers" ; "Dental Corps and Nurse Corps (Female)"; "Naval Reserve Force (pay for active duty) "; "Additional pay for special duty (Aids to rear admirals. Aviation duty, and Shore duty be- yond seas)." Leave and waiting orders. — In Hunt v. United States (38 Ct. Cls., 704) the Court of Claims said: "Neither the Secretary of War nor any officer of the Government can force a leave of absence or furlough upon an officer or soldier." But as to furlough, see section 1442, Revised Statutes, and note thereto. "A leave of absence is not forced upon an officer, but is granted to him for his sole accom- modation." (16 Comp. Dec, 617; see also note to sec. 1442, R. S.) Prior to July 1, 1899, when the thirteenth section of the Navy personnel act took effect, the duty pay and leave pay of all commissioned officers on the active list of the Navy were fixed by section 1556, Revised Statutes. That sec- tion fixed the pay of each officer of different grades, whether on duty or leave, or on waiting orders, including the Construction Corps, pro- fessors of mathematics, and civil engineers. Section 13 of the personnel act assimilating the pay of commissioned officers of the Navy %vith that of Army officers of corresponding rank, was confined to "commissioned officers of the line of the Navy and of the Medical and Pay Corps." This left the Construction Corps, pro- fessors of mathematics, and civil engineers where they were before. The leave pay and waiting-orders pay of officers of the Army to which the pay of certain naval officers was thus assimilated is regulated by section 1265, Re- vised Statutes, which provides: "Officers when absent on account of sickness or wounds, or lawfully absent from duty and waiting orders, shall receive full pay; when absent Avith leave, for other causes, full pay during such absence not exceeding in the aggregate thirty days in one year, and half pay during such absence exceeding thirty days in one year. When ab- sent -without leave, they shall forfeit all pay dm-ing such absence, unless the absence is ex- cused as unavoidable." This section was amended by the act of July 29, 1876 (19 Stat., 102), so as to provide that "all officers on duty shall be allowed, in the discretion of the Secre- tary of War, sixty days leave of absence without deduction of pay or allowances: Provided, That the same be taken once in two years: And provided further , That the leave of absence may be extended to three months, if taken only once in three years, or four months if taken only once in four years." The act of May 13, 1908 (35 Stat., 127), provided that "hereafter all commissioned officers of the active list of the Navy shall receive the same pay and allow- ances according to rank and length of service * * *." One of the purposes of this act was to correct the discrimination in respect of leave pay between commissioned officers of the Navy whose pay was assimilated with that of the Army by section 13 of the personnel act and officers of the Construction Corps, professors of mathematics, and civil engineers, who con- tinued to receive pay at the rates provided by section 1556, Revised Statutes. By said act of May 13, 1908, all commissioned officers of the Navy were placed upon the same footing as to pay and allowances, "according to rank and length of service," whether on active duty or not, and officers of the Construction Corps, pro- fessors of mathematics, and civil engineers ac- cordingly are entitled to the same benefits of the law relating to the pay of Army officers when on leave of absence or on waiting orders that are conferred upon officers of the line of the Navy and of the Medical and Pay Corps (now Supply Corps). (27 Op. Atty. Gen., 261; fol- lowed, Comp. Dec, Apr. 16, 1909, 98 S. and A. Memo., 1036.) "The leave year is reckoned from July 1 to the following June 30, both inclusive. ' ' (Army Regs., 1913, par. 1276.) A retired naval officer assigned to active duty is not entitled to cumulative leave of absence that had accrued prior to his retirement, notwithstanding the fact that his assignment to active duty occurred immediately after his retirement. (23 Comp. Dec, 307.) The leave of absence of an officer of the Navy who was ordered to his home and granted a leave of absence began when he was relieved from duty on board his vessel, and he is not entitled to duty pay while traveling to his home, as said travel was performed for his ovra benefit and not on public business. (Comp. Dec, Apr. 13, 1910, 110 S. and A. Memo., 1375.) An officer of the Navy ordered to proceed to his home and granted a leave of absence, and at the expiration of such leave to return to his station, is traveling for his own pleasure and benefit and not on public business, and is not entitled to mileage. (16 Comp. Dec, 611; 823 Sec. 1556. PL 2. REVISED STATUTES. The Navy. see also Comp. Dec, June 23, 1910, 112 S. and A. Memo., 1504.) . Section 1265, Revised Statutes, pro\ides that officers shall be entitled to 30 days' leave of absence in one vear; and the act of July 29, 1876 (19 Stat., 102), provides that leave of ab- sence may be extended in the discretion of the Secretary of War "to four months if taken only once in four years." An officer of the Navy detached from duty beyond seas and ordered to return home, and who is afterwards authorized to delay two months en route to the United States, is in effect and as a matter of fact s:iven a leave of absence of 60 days, and he is entitled during such leave to continue in receipt of pay allowed him for shore duty beyond seas, pro- vided such leave of absence was not in excess of that to which he was entitled by law. (Izard V. U. S., 48 Ct. Cls., 367.) An officer ordered away from his station to appear before an examinina; board preliminai-y to promotion, and who after completing his examination is. iipon his own request, author- ized to delay his retiu-n to his station, is during such delay in the status of leave oi absence granted upon his ovm request, being in fact relieved from duty and _ from responsibility during such period, notwithstanding the pro- visions of the Na\'y Regulations that "a tem- porary leave of absence does not detach an officer from duty nor affect his rate of pay." (Roberts v. U. S., 44 Ct. Cls., 411.) A commissioned officer of the Navy is not entitled to the 10 per cent additional for sea duty while on leave of absence, even though the leave be of only one day's diu-ation. (Comp. Dec, June 8, 1915, 172 S. and A. Memo., 3703.^ The act of May 13, 1908, did not repeal prior statutes regulating the pay of naval officers of the Line and Pay Corps [now Supply Corps] while on leave of absence, and such officers while temporarily absent from their ship on leave properly granted to them for periods not in excess of that authorized with fiiU pay by section 1265 of the Revised Statutes and the act of July 29, 1876, are entitled to the present pay of their grades, increased by their length of service pay, in accordance with the act of ]\Iay 13, 1908; othertvise, to half of such amount for leave so granted in excess of that authorized by such statutes with full pay but such officers are not entitled to receive while on leave of ab- sence from sea duty the 10 per cent increase in pay which they were receiving "while so serv- ing." notwithstanding the pro\-ision in the act of July 29, 1876, that the authorized leave of absence shall be "without deduction of pay or allowances." (15 Comp. Dec, 656.) A warrant officer of the Na\'y granted leave of absence from duty at sea is entitled under the act of August 29, 1916 (39 Stat., 578), to full pay at the rate received by him while on sea duty. (23 Comp. Dec. 200. Note: The act of August 29, 1916, provides that "warrant officers shall be allowed such leave of al^sence, with, fidl pay, as is now or may hereafter be allowed other officers of the United States Na\T-") A commissioned officer of the Navy is en- titled only to half pay while on leave of absence in excess of the amount authorized by statute mth full pav. fComp. Dec, June 25, 1913, 148 S. and a! Memo., 2670.) An officer of the Army granted, and accept- ing, leave without pay is not estopped fi'om demanding the halt pay allowed by statute, even though he did not protest at the affixing of such a condition to the order granting the leave. Public policy prohibits any attempt by unauthorized agreement with an officer of the United States, under the guise of a condition or otherwise, to deprive him of the right to pay given by statute. (U. S. v. Andrews, 240 U. S., 90, approving Glavey v. U. S., 182. U. S., 595.) An officer of the Army who is ordered, even on his own request, to proceed to a particular place, including his home, and "there await orders," reporting thence by letter to the Adju- tant General of the Army and to the head- quarters of the department to which he then belongs, is not an officer "absent fi-om duty with leave-' within the meaning of an act of Congress which enacted that "any officer absent from duty with leave, except fi'om sickness or wounds, shall during his absence receive half of the pay and allowances prescribed by law, and no more." Such an officer is waiting orders in pursuance of law, but not absent from duty on leave. (U. S. v. Williamson, 23 Wall., 411.) The distinction between the case of an officer "absent from diity with leave," and that of an officer ordered to proceed to a particular place and there "to await orders, reporting thence by letter to the Adjutant General of the Army and to these headquarters," is too plain to require much comment. While absent from duty "with leave," the officer is at liberty to go where he will during the permitted absence, to employ his time as he pleases, and to smrender his leave if he chooses. If he reports himself at the expiration of his leave, it is all that can be asked of him. The obligations of an officer directed to proceed to a place specified, there to await orders, are quite different. _ It is his duty to go to that place and to remain at that place. He can not go elsewhere; he can not return until ordered. He is as much under orders, and can no more question the duty of obedience than if ordered to an ambush to lie in wait for the enemy, to march to the front by a particular direction, or to the rear by a speci- fied time. That the assignment was made at the request of the officer can make no difference. The pay is regulated by the position, and not by the manner or influence by which the po- sition is acquired. (U. S. v. Williamson, 23 Wall., 411, 415.) An officer of the Ai-my ordered fi'om a military post at which he is doing duty to his home, to await orders, even at his own request, is entitled to mileage for travel by him in pursuance of his orders. The status of the officer wliile awaiting orders is different from that of an officer absent from duty with leave. The officer in this case was not absent on leave but was awaiting orders at his home. It results that in thus proceeding to his home he was traveling under orders. The fact that he changed his residence while awaiting orders is unimportant. Whether he resided in New York or New Jersey could make no difference in his position in the Army or his liability or readiness to respond to any orders 824 The Navy. PL 2. REVISED STATUTES. Sec. 1556. given to him. It was, indeed, important that he should keep the depai'tment advised of Ms residence, that he could be called upon when it was desii-ed. This he did. (U. S. v. Phis- terer, 94 U. S., 219, approving U. S. v. William- son, 23 Wall., 411.) The theory of leave or waiting orders pay is that an officer while at home on leave or waiting orders is at less expense than when at sea or on shore duty. (Selfridge v. U. S., 28 Ct. Cls., 40.) Where a naval constructor, entitled to pay imder section 1556, Revised Statutes, be- came sick while on duty and was placed in a naval hospital, and upon his discharge from the hospital, upon the recommendation of a board of medical survey, was granted sick leave for two months, held, that during the time he is absent from his station on such sick leave doing no duty whatever, although not formally de- tached fi'om duty by express order, he was in fact detached and was entitled to leave pay only. (Williams v. U. S., 47 Ct. Cls., 56.) Awaiting trial.— While under arrest and sus- pended from duty awaiting trial by court- martial, an officer is in the status of "waiting orders" a.nd is entitled to pay and allowances; forfeiture of pay and allowances can only be imposed by the sentence of a lawful court- martial. (Walsh V. U. S., 43 Ct. Cls., 225, citing Smith V. U. S., 2 Ct. Cls., 206; Winters v. U. S., 3 Ct. Cls., 136; Collins v. U. S., 15 Ct. Cls., 22; Sullivan v. U. S., 32 Ct. Cls., 4^2; 4 Comp. Dec, 605; 6 Comp. Dec, 970.) Where an officer is awaiting trial before either a civil or military tribunal under waiting orders issued by authority of the War Depart- ment he is entitled to the emoluments of his office, including commutation of quarters. (Carrington v. U. S., 46 Ct. Cls., 279, overruling 11 Comp. Dec, 755, which held that the officer in such case was in the status of ' 'absent without leave," and not entitled to pay while on bail pending an appeal to a higher civil court.) Serving sentence. — A person in the military service is not entitled to pay while serving sentence of imprisonment imposed by a civil court, even though during the term of imprison- ment he was in the custody of the commanding officer of a military station as a prisoner of the civil authorities. (Comp. Dec, Dec 20, 1910, 118 S. and A. Memo., 1642.) An officer suspended from rank and duty piusuant to sentence of court-martial is not entitled to emoluments or allowances. (Swaim v.V. S., 165 U. S., 553.) Absence tvithout leave. — A commissioned of- ficer of the Navy granted a leave of absence for a specified period, who does not report his ad- dress on date of termination of such leave, is absent without leave from such date and is not entitled to any pay for the period of such unauthorized absence, unless excused as un- avoidable. (Comp. Dec, July 25, 1910, 113 S. and A. Memo., 1521. See also note to sec. 1569, R. S.) Furlough. — Pay of officers while on fmlough under section 1442, Revised Statutes, is fixed by section 1557, Revised Statutes. (See notes to those sections.) Absence due to misconduct. — "Hereafter no officer or enlisted man in the Navy or Marine Corps in active service who shall ha absent from duty on account of injury, sickness, or disease resulting from his own intemperate use of drugs or alcoholic liquors, or other miscon- duct, shall receive pay for the period of such absence, the time so absent and the cause thereof to be ascertained under such procedure and regulations as may be prescribed by the Secretary of the Navy: Provided, That an en- listment shall not be regarded as complete until the enlisted man shall have made good any time in excess of one day lost on account of injury, sickness, or disease resulting from his own intemperate use of drugs or alcoholic liq- uors, or other misconduct." (Act Aug. 29, 1916, 39 Stat., 580, as amended by act July 1, 1918, 40 Stat., 717.) 41 . Deductions for naval hospital fund. — "The Secretary of the Navy shall deduct from the pay of each officer, seaman, and marine, in the Navy, at the rate of twenty cents per month for each person, to be apphed to the fund for Navy hospitals." (Sec. 4808, R. S.; see also sec. 1614, R. S.) 42. Stoppage of pay, service with con- tractors. — "That hereafter no payment shall be made from appropriations made by Congress to any officer in the Navy or Marine Corps on the active or retired list while such officer is em- ployed, after June thirtieth, eighteen hundred and ninety-seven, by any person or company furnishing naval supplies or war material to the Government; and such employment is hereby made unlawful after said date." (Act June 10, 1896, 29 Stat., 361.) 43. Waiver of pay. — Public poKcy pro- hibits any attempt by unauthorized agreement with an officer of the United States, under the guise of a condition or otherwise, to deprive him of the right to pay given by statute. (U. S. V. Andrews, 240 U. S., 90, approving Glavey v, U. S., 182 U. S., 595; see also Katzer v. U. S., 52 Ct. Cls., 32, and Kozlowski t;. U. S., 54 Gt. Cls., 206.) 44. Allotments of pay. — See section 1430, Revised Statutes, and note thereto. The Secretary of the Navy has no power to increase a naval officer's allotment without his consent; where he attempts to do so, the officer may recover the illegal excess paid under the allotment, without his knowledge or consent. (Melville -?;. U. S., 23 Ct. Cls., ll) Section 3477, Revised Statutes, prohibits as- signment of any claim against the UnitedStates. The naval appropriation act of June 10, 1896 (29 Stat., 361), authorizes the Secretary of the Navy to permit "officers" of the Navy and Marine Corps to make allotments under certain conditions. Under this authority the Secre- tary issued a regulation (art. 1094, Navy Regs., 1909) authorizing allotments to be made, under certain conditions, by "each person in the Navy and Marine Corps." (Assignment of wages by enlisted men of the Navy was author- ized by sec. 1576, R. S.) (17 Comp. Dec, 666.) The act of June 10, 1896, is a beneficial one and provides with little expenseto the Gov- ernment for a worthy object; it is not, there- fore, an act that calls for a technical construc- tion. Paymasters' clerks in the Navy were recognized as entitled to make allotments of their pay under said act. Held, that clerks to assistant paymasters of the Marine Corps, in 825 Sec. 1557. PL 2. REVISED STATUTES. The Navy. 1911, were likewise entitled to make such allotments under said act of 1896 relating to officers. (17 Comp. Dec, 666.) 45. Reduction of pay. — It is not in the power of the executive department, or any branch of it, to reduce the pay of an officer of the Army. The regulation of the comj)ensa- tion of the officere of the Army belongs to the legislative department of the Government. (U. S. V. Williamson, 23 Wall., 411, 416; see also cases cited above, under "43. Waiver of pay.") Reduction by the President of the sentence of an officer of the Navy from dismissal from the ser^-ice to reduction to one-half sea pay for five years is a mitigation of the sentence Avithin the meaning of article 54, section 1624, Revised Statutes. The officer whose pay has been so reduced is not entitled to recover from the United States the difference between one-half sea pay and waiting-orders pay for the period covered by the sentence. (Mullan v. U. S., 212 U. S., 516.) The report and recommendation of a naval board, although approved by the Secretary of the Navy, did not work a forfeiture of the pay of the disbui'sing officer involved, as the board only recommended that he be held responsible and that the amount of the loss be deducted from any money that might be due him. Such declaration of the investigating board might have been made the basis of a com't-martial, but it is well settled that the pay due to an officer can only be forfeited by the sentence of a court-martial.* (Worz v. U. S., 48 Ct. Cls., 80, 93.) It was competent for the proper marine superiors and the accounting officers of the Treasury to withhold payment of the money due to an officer until he, or his representative after his death, shall establish that the money committed to his care was not lost by or through his fault or negligence. (Worz v. U. S., 48 Ct. Cls., 80, 93.) 46. Termination of pay. — Where a con- tract officer (civilian captain of a naval collier) abandoned his place of service without orders, it is conclusive that such contract officer con- sidered his contract with the Government at an end, and he is entitled to no further remunera- tion from the Government. (Gove v. U. S., 49 Ct. Cls., 251.) An appointed officer (paymaster's clerk) or- dered, while abroad, to proceed to his home in the United Statea, and that upon his arrival home his appointment "is revoked," was en- titled to compensation untU he arrived at his home. (Calongne v. U. S., 49 Ct. Cls., 240, citing Davis v. U. S., 47 Ct. Cls., 195; see also Katzer v. U. S., 49 Ct. Cls., 294.) An officer dismissed in time of peace with- out sentence of comt-martial can not recover pay thereafter if he acqmesces in the unlawful dismissal for such a long period that he may be held to have abandoned his office. (Ide v. U. S., 25 Ct. Cls., 401; 29 Ct. Cls.. 558; Newton v. U. S.,18Ct. Cls.,435.) The discharge of an officer does not take effect, 80 as to relieve the Government from its obligations, until he is notified of the fact and actually discharged from the service. (Gould V. U. S., 19 Ct. Cls., 593.) An officer who continues in the performance of his duty after tendering his resignation ia entitled to pay up to the time that he is notified of the acceptance of his resignation. (Barger v. U. S., 6Ct. Cls., 35.) 47. Pay computed on monthly basis. — Annual compensation of any person in the service of the United States shall be divided into 12 equal installments, one of which shall be the pay for each calendar month; one- thirtieth of one installment shall be the daily rate of pay, in making payments for a fractional part of a month; the 31st of any calendar month shall be excluded from computation, and Feb- ruary shall be treated as having 30 days. Per- sons entering the service in a 31-day month shall be entitled to pay from date of entry to the 30th of said month, and persons entering in February shall be entitled to one month's pay less as many thirtieths as days elapsed prior to entry. For unauthorized absence on the 31st of any month, one day's pay shall be forfeited. (Aet June 30, 1906, sec. 6, 34 Stat., 763.) The Re\dsed Statutes, section 1556, provided that the officers and men of the Navy "shall be entitled to receive annual pay at the rates herein stated " ; but the officers of the Army and Navy have never been paid annually, and in the case of death, resignation, or dismissal, pay runs to the date when the officer leaves the service; therefore, the statute of limitations ex- cludes pay anterior to a period of six years prior to the bringing of suit therefor. (Brook V. U. S., 31 Ct. Cls.,''272.) Sec. 1557. [Furlough pay.] Officers on furlough shall receive only one- half of the pay to which they would have been entitled if on leave of absence. — (3 Mar., 1835, c. 27, s. 1, v. 4, p. 756. 3 Mar., 1845, c. 77, s. 6, v. 5, p. 794. 1 June, 1860, c. 67, s. 4, v. 12, p. 27.) Navy" considerably below that required for the pay of officers on active duty, this action being based upon the express grounds "that by a very rigid enforcement of a somewhat disused power on the part of the Secretary of the Navy to furlough officers, instead of having them under the heads of 'other duty' or 'waiting orders,' a very considerable reduction could be made," and that they therefore "give the Secretary of the Navy the disagreeable duty of putting officers upon furlough, when they can As to leave of absence pay, see note to section 1556, Revised Statutes, imder "Absence from duty." This section has not been repealed by subsequent enactments. (15 Comp. Dec, 73. See also notes to sections 1454, 1593, and 1594, Revased Statutes.) Officers furloughed as measure of economy. — In the a])propriations for the naval service for the fiscal year ending June 30, 1877, Congress reduced the amount for "Pay of the 826 The Navy. PL 2. REVISED STATUTES. Sec. 1558. be spared from the actual needs of the service." Under these circumstances, the Secretary of the Navy felt bound to reduce the number of officers employed to that absolutely needed to meet the requirements of the ser\'ice, and to put those unemploved upon furlough pay. (Navy Dept. Gen. Order No. 216, Aug. 12, 1876, citing Cong. Rec, June 30, 1876, p. 16.) The Secretary of the Navy found it a dis- agreeable duty to be obliged to put so many well-deserving officers in a position which had been reserved of late years solely for the useless and undeserving, but had no other alternative except that of refusing to carry out the ex- pressed will of the representatives of the people. In placing these officers on furlough, the Secre- tary stated that it would be understood that his action "neither imputes any -wTong to, nor in- volves the disgrace of, any such officer; but that it is simply an effort to meet, as nearly as may be, the reciuirements of public law, bind- ing alike upon the department and the service." (Navy Dept. Gen. Order No. 216, Aug. 12, 1876.) Sec. 1558. [Allowances.] The pay prescribed in the two preceding sections shall be the full and entire compensation of the several officers therein named, and no additional allowance shall be made in favor of any of said officers on any account whatever, except as hereinafter provided. — (15 July, 1870, c. 295, s. 4, V. 16, p. 332.) Allowances for officers of the Army, except forage, are made applicable to all com- missioned officers of the Navy by act of March 3, 1899, section 13 (30 Stat., 1007), as amended by acts of May 13, 1908 (31 Stat., 128), and August 29, 1916 (39 Stat., 581), noted under section 1487, Revised Statutes. Chief of Naval Operations shall receive the al- lowances prescribed by or in pursuance of law for the gi-ade of general in the Army. (Act July 1, 1918, 40 Stat., 716.) Chiefs of bm-eaus and the Judge Advocate General of the Navy shall receive the same allowances as prescribed by or in pursuance of law for chiefs of bureaus of the War De- partment and the Judge Advocate General of the Army. (Act July 1, 1918, 40 Stat., 717.) Officers of the Navy holding the rank and title of Admiral and Vice Admiral in the Navy, while holding such rank and title, shall receive the allowances of a General and Lieutenant General of the Army, respec- tively. (Act July 1, 1918, 40 Stat., 717.) See note to section 1556, Revised Statutes, as to pay and allowances of warrant officers, commissioned warrant officers, Naval Re- serve Force, Nurse Corps (Female), etc. See note to section 1487, Revised Statutes, as to quarters, heat, and light, and as to allow- ances in general. See notes to sections 1578 and 1579, Revised Statutes, as to rations of officers. Transportation of household effects: See act of May 18, 1920, section 12 (41 Stat., 604). Warrant officers and mates "shall hereafter re- ceive the same commutation for quarters as second lieutenants of the Marine Corps " (act Mar. 3, 1901, 31 Stat., 1107); and "shall re- ceive the same allowances of heat and light as are now or may hereafter be allowed an ensign. United States Navy." (Act Aug. 29, 1916, 39 Stat., 578.) As to rations of warrant officers and mates, see notes to sections 1578 and 1579, Revised Statutes. Historical note. — By act of March 3, 1835 (4 Stat., 757), it was provided that "the yearly allowance provided in this act is all the pay, compensation, and allowance which shall be received under any circiunstances whatever by any such officer," etc. Before said act it was lawful for the Secretary of the Navy to make allowances out of appropriations in gross to officers of the Navy, beyond their regular pay, for quarters, furnitm-e, light, fuel, and so forth. By act of April 17, 1866 (14 Stat., 33), said act of March 3, 1835, was repealed. The effect of said repeal was to restore the right to make such allowances, as the act of February 25, 1871, now embodied in section 12 of the Re- vised Statutes, was not then in force. (U. S. v. Philbrick, 120 U. S., 52.) Provision as to allowances which are fixed for naval officers in the naval personnel act of March 3, 1899, section 13 (30 Stat., 100/), noted above, superseded the statutory pro\asions as to the same allowances which were contained in earUer statutes. (Gibson v. U. S., 194 U. S., 182.) The pro\-iso in the naval personnel act de- claring that "no provision of this act shall operate to reduce the present pay of any com- missioned officer," and the act of June 7, 1900 (31 Stat., 684, 697), that nothing contained in the personnel act shall operate to reduce the pay which, but for the passage of said act, would have been received by any commis- sioned officer at its passage or thereafter, do not extend to allowances. "(Thomas v. U. S., 38 Ct. Cls., 113.) Allowances provided by law for officers of the Army are applicable to officers of the Navy by reason of section 13 of the Navy personnel act approved March 3, 1899 (30 Stat., 1007), and the acts of May 13, 1908 (35 Stat., 127, 128), and August 29, 1916 (39 Stat., 581). (24 Comp. Dec, 610, citing 15 Comp. Dec, 809; 66 MS. Comp. Dec, 663, Aug. 14, 1913; 27 Op. Atty. Gen., 261; Op. J. A. G. Navy, Apr. 13, 1918.) Allowances, pay, emoluments, etc., defined and distinguished.— See note to sec- tion 1556, Revised Statutes, under "longe\-ity pay," for definition of current yearly pay and yearly pay of the grade; and note to section 1487, Revised Statutes. Under the term "allowances" everything is embraced which would be recovered from the Government by the soldier in consideration of his enlistment and services, except the stipu- lated monthlv compensation designated as pay. Therefore, the term allowances includes the bountv allowed to a soldier upon his honorable discharge at the expiration of his service. (U. 54641°— 22- 53 827 Sec. 1558. Ft. 2. REVISED STATUTES. The Navy. S. V. Landers, 92 U. S., 77, 80, citing 13 Op. Atty. Gen., 198, 199.) "Mounted pay" is not an allowance, but Eay proper; the olKcer to whom it is assigned y statue receives it, whether he is actually mounted or not; where a surgeon in the Army is entitled to it, a surgeon in the Navy re- ceiving Army pay and allowances under the Navy personnel act of March 3, 1899, is also entitled to it. (Richardson v. U. S., 38 Ct. 01s., 182.) By reference to the statutes it appears that the words "pay and allowances" may be understood in a general sense as including all emoluments paid or allowed to a soldier. (13 Op. Atty. Gen., 199.) A general order of the Navy Department allowing officers, in lieu of all allowances, except niileage or traveling expenses, a sum equal to 33 J per cent of their "pay," is to be construed as requiring that said percentage be based upon the amount of the officer's stated statutory pay at the time said order was in force, \\'ithout taking into considera- tion the additional amount allowed the officer as lonsjcn-itv pay under the act of March 3, 1883 (22 Stat., 473). (U. S. v. Allen, 123 U. S., 345.) Under a statute providing that officers serv- ing as chiefs of bureaus shall have certain "rank, title, and emoluments," the word "emoluments" includes salary, pay, and every kind of pecuniary compensation for service rendered. (28 Op. Atty. Gen., 429, citing Hoyt v. U. S., 10 How., 108, 135.) The basis of increased pay for shore duty beyond seas is the officer's "pay proper as fixed by law in time of peace." The term "pay proper" is not to be construed differently from the term "pay," which includes the increase granted for longevity service. The total amount is the "pay proper" upon which the percentage is to be computed. (McCuUy V. U. S., 42 Ct. Cls., 275.) Under the act of May 2G, 1900, increasing the pay of officers 10 per cent and of enlisted men 20 per cent "above the rates of pay proper as fixed by law in times of peace" (for shore duty beyond seas), "pay proper" means the fixed amount given by law to officers as dis- tinguished from pay and emoluments or pay and allowances. The increase of an officer's pav is to be computed on his longevity pay, if any. {IrwAn v. U. S., 38 Ct. Cls., 87.) The words "pav proper" as used in the acts of May 26, 1900 (31 Stat., 205, 211), and March 2, 1901 (31 Stat., 895, 903), allowing additional pay to officers and enlisted men of the Army servdng beyond the limits of the States comprising the Union and the terri- tories contiguous thereto, include increase for longe\aty pay. The total of the minimum pay of the office prescribed by statute and the increased pay for length of service should be taken as the basis of the computation for the increase under the acts cited. (U. S. V. Mills, 197 U. S., 223.) "Pay proper" means the regular, ordinary pay which an officer may be entitled to under the facts in his case, and if by \drtue of length of ser\-ice he is entitled to receive the addi- tional compensation provided therefor, that compensation is his "pay" or his "pay proper" as distinguished from possible other compensa- tion by way of allowances, or commutation, or otherwise. (U. S. v. Mills, 197 U. S., 223.) The words "pay proper" are not to be con- strued differently from the word "pay." The term means compensation which may properly be described or designated as "pay' as distin- guished from allowances, commutation for rations, or other methods of compensation not specifically described as pay. (U. S. V. Mills, 197 U. S., 223.) The words "all back pay and emoluments," in a special act of Congress (granting the compensation to which an officer wf)uld have been entitled had he remained in the Army for a period that he was out after an enforced resignation until his reinstatement), are all comprehensive; they embrace all the com- pensation, perquisites, and dues to which the beneficiary was entitled as an officer. The word "all" excludes the idea of limita- tion, and the word "emoluments" is the most adequate that could have been used. It especially expresses the perquisites of an office, and its use in connection with the word "pay" makes the restitution of the statute complete. (McLean v. U. S., 226 U. S., 374.) The word "pay" does not include allow- ances. (Thomas v. U. S., 38 Ct. Cls., 113.) Wliere an officer is sentenced by court- martial to suspension from rank and duty for 12 years, and to forefeit one-half his monthly pay every month for the same period, he is not entitled to recover allowances. (Swaim V. U. S., 28 Ct. Cls., 173, 237; affirmed, 165 U. S., 553.) The word "pay" in the laws providing for the pay and allowances of officers and en- listed men of the Army has a distinct and technical signification, and when used alone in the sentence of a court-martial does not affect the right to of the accused to his pecuni- ary allowances. (2 Comp. Dec, 300.) A midshipman suspended from the Naval Academy for one year "^\'ithout pay" is not entitled to allowances during the period of his suspension. (Comp. Dec, Nov. 13, 1915, 177 S. and A. Memo., 3830, citing 17 Comp. Dec, 834; 11 Comp. Dec, 560; 13 Comp. Dec, 626.) See also United States v. Jones (18 How., 92), noted under section 1586, Revised Statutes. Maintenances, attaches. — The money ap- propriated by Congress for ''maintenance of students and attaches and information from abroad" is in the nature of a contingent fund, to be disbursed by the Secretary of the Navy in his discretion. The only question that can arise is how much did the Secretary intend to allow to an officer. Neither can the form of the Secretary's allowance be a matter of judi- cial review, nor the time when the mainte- nance was to begin. Accordingly, held, that where a naval officer was ordered by the Secre- tary of the Navy to report for duty to our minis- ter to Spain, and to accompany him to Madrid, and it was further ordered by the Secretary that the officer be allowed $285 per month for "maintenance, " to begin at the time he reports for duty, and that such allowance be "addi- 828 The Navy. PL 2. REVISED STATUTES. Sec. 1560. tional to the ordinary traveling and other ex- penses that may be allowed, " the accounting officers Avere in error in refusing to allow the maintenance prior to the time said officer arrived in Madrid. (Dyer v. U. S., 37 Ct. Cls., 337, citing U. S. v. Jones, 18 How., 92, noted under section 1586, R. S.; see also note to sec. 285, R. S.) Medical expenses of ofl&cers. — See note to section 1586, Revised Statutes. Servants. — The Navy Regulations which allow the detail of enlisted men to prepare and serve food for officers' messes extend only to messes on board ship; officers' messes on shore are A-oluntary, and there is no law or regulation which recognizes them. Where enlisted men on shipboard were detailed to serve an officer's mess on shore, and were subsisted by the mess, and their rations were commuted and paid to the mess, the accounting officers could dis- allow the payment and compel the officers to refund the monev. (Williams v. U. S., 44 Ct. Cls., 175.) The act of July 1, 1902 (32 Stat., 662, 680), authorizing the payment of money accruing from the rations of enlisted men "commuted for the benefit of any mess, " does not extend to an officer's mess on shore. (Williams v. U. S., 44 Ct. Cls., 175.) Section 1232, Revised Statutes, pro\'iding that ' ' no officer shall use an enlisted man as a servant in any case whatever, " which related to officers of the Army, is ecjually applicable to officers of the Navy, at least on shore; the Navy Regulations respecting enlisted men in the Marine Corps are equally as explicit, so that, whatever authority there may be for the enlistment of messmen of the servant class on board ship can ha\-e no application to a private mess formed by officers on shore. (Williams v. U. S., 44 Ct. Cls., 175.) See also 12 Comp. Dec, 697, noted under section 1487, Re\'ised Statutes, "Services of laborer in caring for quarters, " and see 6 Comp. Dec, 756. defined and distin- to section 1556, Re- to persons in the Mileage, traveling expenses, and trans- portation of dependents. — See note to sec- tion 1566, Revised Statutes. Allow^ances of ofl&cer under suspen- sion. — See note above, under "Allowances, pay, emolmnents, etc., guished"; see also note \'ised Statutes. Sale of stores, etc. Navy. — Sale of naval stores to persons in the Navy and Marine Corps, and civilian em- ployees at certain naval stations is authorized bv act of March 3, 1909 (35 Stat., 768), act of June 24, 1910 (36 Stat., 619), and act of March 4, 1913 (37 Stat., 909). Sale of Navy and Ma- rine Corps subsistence stores to officers and en- listed men of the Army is authorized by act of August 29, 1916 (39 Stat., 630), which also authorizes officers and enlisted men of the Navy and Marine Corps to purchase subsistence sup- plies from the Army. (See also sec. 1135, R. S., and note thereto.) The Secretary of the Navy is not authorized, in the absence of a provision of law therefor, to purchase for sale to officers and enlisted men of the Navy articles not included in the regular naval stores. (6 Comp. Dec, 321; see also note to sec. 1414, R. S.) Uniforms, accoutrements, and equipment shall be sold at cost to officers of the Navy, Marine Corps, midshipmen, cadets at the Coast Guard Academy, and officers of the Coast Guard while operating ^vith the Navy, subject to such restrictions and regulations as the Secretary of the Navv mav prescribe. (Act Jan. 12, 1919, 40 Stat.,' 10540 _ Honorably discharged officers and enlisted men of the Army, Navy, and Marine Corps recei^^ng medical treatment from the Public Health SerA-ice shall be permitted to purchase subsistenc'e stores from the Armv, Navy, and Marine Corps. (Act June 5, 1920, 41 Stat.^ 976.) Sec. 1559. [Volunteer service.] When a volunteer naval service is author- ized by law, the officers therein shall be entitled to receive the same pay as offi- cers of the same grades, respectively, in the Regular Navy. — (16 July, 1862, c. 183, s. 20, V. 12, p. 587.) Naval Resei'\'e Force, pay and allowances: See note to section 1556, Revised Statutes. Pay, defined: See note to section 1558, Revised Statutes. Transfer of officers from the volunteer 8er^'ice to the Regular Na\y : See note to section 1412, Revised Statutes. Sec. 1560. [Commencement of pay ; original entry.] The pay of an officer of the Navy, upon his original entry into the service, except where he is required to give an official bond, shall commence upon the date of his acceptance of his appointment; but where he is required to give such bond his pay shall com- mence upon the date of the approval of his bond by the proper authority. — (15 July, 1870, c. 295, s. 7, v. 16, p. 333.) As to commencement of pay in the cases of to same section, under "I. WTio are re- officers of the Navy required to give bonds, quired to give bonds." see note to section 1383, Revised Statutes, As to pay of midshipmen commissioned witliin under "II. Necessitv of furnishing bond six months after graduation, see act of before entering upon duty"; see also note March 3, 1893 (27 Stat., 715), which allows 829 Sec. 1561. PL 2. REVISED STATUTES. The Navy. the pay of the j^jado in which commissioned from the date of rank stated in the com- mission to the date of qualification and acceptance of commission; and act of May 22, 1917, section 5 (10 Stat., 86), reenacted byact of July 1, 1918 (40 Stat., 716), ■which proNides that midshipmen thereafter graduating "may be commissioned effec- tive from date of graduation." Appointment of officer to liigher office in another branch of the service. — It has been the rule of the accounting officers to hold that the appointment of an officer in one branch of the service to another office in another branch is an "original entry into the service" ■within the meaning of section 1560, Revised Statutes. (Comp. Dec, May 31, 1907, 76 S. and A. Memo., 372.) For other cases, see note to section 1458, Revised Statutes, under " Promotion ' and 'ap- pointment' compared." See also note to sec- tion 1556, Revised Statutes, under "Longevity pav," citing United States v. Alger (151 U. S., 362, 152 U. S., 384), United States i;. Stahl (151 U. S., 366), Barber v. United States (50 Ct. Cls., 250), United States v. U. S. Fidelity and Guarantv Co. (244 Fed. Rep., 310), Stirling v. United States (48 Ct. Cls., 386), -which cases hold that the reappointment of an officer, whether under the general law or special act of Congress, is not an original entry into the serv- ice, for purposes of longevity pay, where the officer had not left the ser\ice with the bona fide intention of not returning, but his services under the two appointments had in effect been continuous. See also notes to sections 1561 and 1562, Re-vised Statutes. Reappointment under special act of Con- gress. — A former officer of the Navy reap- pointed b}^ authority of a special act of Con- gress, pro-viding that such reappointment shall be made "as of" a prior specified date, would, if the actstop])ed there, be entitled to back pay from such prior date; but where the act con- tained a pro-viso "that he shall receive no pay or emoluments except from the date of such reappointment," its effect was to forbid the allowance of pay or emoluments prior to the date of such reappointment, which must be regarded as the date when such reappointment was actually made under the act, and not the retroactive date as of which such reappointment was made, and which served merely to fix his rank and precedence. Further held, that this legislation, being remedial in its character, should be construed as ratifying payments which had been made to the officer prior to the passage of the act and which the Government in a counterclaim had sought to recover back. (Quackenbush v. U. S., 177 U. S., 20.) See also Stirling v. United States (48 Ct. Cls., 386), noted under section 1556, Revised Stat- utes, " Longevity pay." Appointment of officer to higher office in a ne-w corps. — The act of March 3, 1915 (38 Stat., 942), created in the Na-vy the grades of acting pay clerk, pay clerk, and chief pay clerk, and rendered eligible for commissions as chief pay clerks, paymasters' clerks then in the Navy and former paymasters' clerks whose ap- pointments had been revoked prior to the act and who had not less than six years' actual service as such. The said act also changed the titles of paymasters' clerks to "pay clerk." Held, that a pajonaster's clerk whose title was changed to pay clerk by the act, and who was commissioned in accordance with, said act as a chief pay clerk, was not "advanced in grade or rank pursuant to law " -nithin the meaning of the act of March 4, 1913 (noted under sec. 1562, R. S.); that the said act of March 3, 1915, created a new corps in the Navy; and that pay- masters' clerks then in the ser-vice, not-with- standing their change of title, were not members of said new corps any more than those whose appointments had theretofore been revoked; that the appointment of the officer in this case as a chief pay clerk was no more an advance- ment in grade or rank than the appointment of a former paymaster's clerk \xiih the requisite qualifications would have been an advance- ment in grade or rank; that in either case the appointment would have been that of one out- side of the newly created corps, and of one who had no grade or rank as a warrant or commis- sioned officer; accordingly, the officer in this case, ha-ving been commissioned as a chief pay clerk on August 3, 1915, pursuant to the act of March 3, 1915, was not entitled to pay as chief pay clerk from the date of rank stated in his commission, which was July 1, 1915. (Seifert V. U. S., 52 Ct. Cls., 40.} Promotion of enlisted man. — The ap- pointment of an enlisted man to the position of pharmacist in the Navy is not a promotion 'in course," -within the meaning of section 1561, Re-vised Statutes, and the appointee is not en- titled to the pay of the higher grade from the date he is to take rank, as pro-vided therein, but from the date of his acceptance of the office. (5 Comp. Dec, 141.) An officer's original entry into the ser-vice, within the meaning of section 1560, Revised Statutes, has reference to his entry into the service as an officer and not as an enlisted man, and when an officer is appointed from among the enlisted men of the Navy his pay as an officer begins as pro-vided in said section. (5 Comp. Dec, 141.) Midshipman commissioned as an offi- cer. — The appointment of a midshipman to the position of assistant ci^il engineer in the Navy, when not made until over six months from the date of his graduation, is "an original entry into the ser-vice " %\ithin the meaning of section 1560, Revised Statutes, rather than a "promo- tion in course to fill a vacancy in the next higher grade," -within the meaning of the act of June 22, 1874 (noted under section 1561, R. S.). (13 Comp. Dec, 606; but see act of July 1, 1918, noted above.) Sec. 1561. [Commencement of pay of promoted officers. Superseded.] This section pro-vided as follo-ws: "Sec. 1561. When an officer is promoted in coirrse to fill a vacancy, and is in the perform- ance of the duties of the. higher grade from the date he is to take rank, he may be allowed the increased pay from such date." — (15 July, 1870, 830 The Navy. PL 2. REVISED STATUTES. Sec. 1561. c. 295, s. 7, V. 16, p. 333 ). 226.) 5 June, 1872, c. 306, 8. 1, V. 17, p. ' It was superseded by the following clause contained in the act of June 22, 1874 (18 Stat., 191): "On and after the passage of this act, any officer of the Navy who may be promoted in course to fill a vacancy in the next higher grade shall be entitled to the pay of the grade to which promoted from the date he takes rank therein, if it be subsequent to the vacancy he is appointed to fill." By act of March 4, 1913 (37 Stat., 892), it was pro\-ided that "all officers of the Na\^ who, since the third day of March, eighteen himdi'ed and ninety-nine, have been ad- vanced or may hereafter be advanced in grade or rank pursuant to law shall be allowed the pay and allowances of the higher grade or rank from the dates stated in their commissions." Historical note. — The pro^ision of the act of July 15, 1870, section 7, chapter 295 (16 Stat., 333), "that "the increased pay of a promoted officer shall commence from the date he is to take rank as stated in his commission," was repealed by the act of June 5, 1872, chapter 306 (17 Stat., 226). The pertinent pro\'ision of the latter act is substantially reenacted in section 1561, Ile\'ised Statutes. (17 Op. Atty. Gen., 495.) By the settled practice of the service, promo- tion to a higher gi-ade includes the right to the rank of that grade from the date of the vacancy filled by the promotion. This practice has the distinct recognition of Congress. Before the legislation referred to, several of the Attorneys General had decided that it was competent for the appointing power to give rank by relation in making promotions. (18 Op. Atty. Gen., 393.) Prior to the act of July 15, 1870, chapter 295, the general rule was that the increased pay of all promoted officers in the Navy commenced from the date of the signature of an appoint- ment to perform the duty of the higher grade if an appointment was given before the issue of a commission; or from the date of the commission if no appointment was previously given. This rule was changed by the said act, which pro- vided that "the increased pay of a promoted officer shall commence from the date he is to take rank as stated in his commission." The pro\'ision of that act, which was general and applied to any promoted officer, was repealed by the act of June 5, 1872, chapter 306. By the latter act only those officers who are "pro- moted in course to fill a vacancy" and have been in the performance of the duties of the higher grade from their ranking date become entitled to the increased pay from that date. Officers otherwise promoted are impliedly ex- cluded; with them it must be deemed that their increased pay was contemplated to com- mence at the date of appointment. The pro- vision of the act of 1872, is substantially em- bodied in section 1561, Revised Statutes. (17 Op. Atty. Gen., 319. But see sec. 1562, R, S., and note thereto.) The act of June 22, 1874, chapter 392, super- sedes section 1561, Re^dsed Statutes, as to officers promoted thereafter. (17 Op. Atty. Gen., 329.) The sole purpose and intent of the first sec- tion of the act of June 22, 1874, was to modify the rule prescribed by section 1561, fixing the period at which the increased pay of an officer on the active list who is "promoted in course to fill a vacancy," shall begin. It in no way affected section 1591, which thereafter, as before, remained in full force. (17 Op. Atty. Gen., 495.) The language of the act of June 22, 1874 (18 Stat., 191), is too plain to require construction. The only question presented is whether there was a vacancy in the office on the date from which the officer took rank therein on promo- tion. (WnUams V. U. S., 47 Ct. Cls., 316, 319.) The first section of the act of June 22, 1874, chapter 392, is in pari materia with the provi- sion touching the pay of promoted officers con- tained in section 7 of the act of July 15, 1870, chapter 295, and the act of June 5, 1872, chap- ter 296, and section 1561, Re\T.sed Statutes, and must be considered in connection therewith to determine its scope. (17 Op. Atty. Gen., 495.) The act of June 22, 1874 (18 Stat., 191), su- perseded section 1561, Revised Statutes, on the same subject. (7 Comp. Dec, 865, 867; 13 Comp. Dec, 606, 608; but see 5 Comp, Dec, 141, 142.) The President for other purposes may insert an antecedent date in the body of a commission; but antecedent date can affect an officer's pay only in the cases authorized by statute. (Young V. U. S., 19 Ct. Cls., 145.) As a general principle, it has been repeatedly decided by the Attorneys General that con- structive rank retroactively assigned to an officer does not draw after it retroactive pay. Even though a statute expressly pro\-ide that rank shall be dated back, the pay is not thereby dated back in the absence of a provision in the statute to that effect. (6 Op. Atty. Gen., 68. But see Quackenbush v. U. S., 177 U. S., 20, noted under sec. 1560, R. S.) The President, by and with the advice and consent of the Senate, has authority to confer brevet rank in the Army from a period antece- dent to the actual appointment and commission; if the words in the commission, "to take rank from" a specified date confer on the officer rank from that time, then they confer on him also the pay and emoluments of that rank, when he is on duty and has a command according to that rank from and after that time. It seems that pay and emoluments are necessarily attached to the rank, and that if the rank existed from the date stated in the commission, and the duty and command existed, then the pay and emolu- ments followed of course. (U. S. v. Vinton, 2 Sumn., 299, 28 Fed. Cas. No. 16, 624.) _ There is no pro\ision of law authorizing pay- ment to an officer of the Army of the pay of the higher grade from the date on which the vacancy occurred which he is promoted to fill; but by immemorial custom and practice the pay is allowed from the date of the vacancy, an the same manner that officers of the Navy are authorized to be paid. Accordingly, officers of the Revenue Cutter Sersdce (now Coast Guard), who were given by law the same pay as the Army, are likewise entitled to pay on promotion from date of vacancy. (9 Comp. Dec, 1.) 831 Sec. 1562. PL 2. REVISED STATUTES. The Navy. By special legislation the right to compensa- tion may be so conferred as to give an officer the same right thereto that he avouUI have had had he been appointed at a prior date. The act of June 22, 1874 (18 Stat., 191), is an instance of this kind. Similar proAdsions were made in prior acts; namelv, section 16, act of July 16, 1862 (12 Stat., 586); section 5, act of July 15, 1870(16 Stat., 333); and section 1, act of June 5, 1872 ( 17 Stat., 226). (9 Comp. Dec, 1, 2.) Officers advanced for heroism. — Revised Statutes, sections 1561 and 1562, provide for certain cases where the pay of an officer shall run from a date anterior to the date of his com- mission — which is the date when the instru- ment was executed — but advancement in rank "for eminent or conspicuous conduct in battle or extraordinary heroism' ' under section 1506, Revised Statutes, is not one of such cases. (Young V. U. S., 19 Ct. Cls., 145; see also 17 Op. Atty. Gen., 319, in same case.) Cadet engfineers. — The words "any officer of the Navy' ' as employed in the first section of the act of June 22, 1874, chapter 392, com- prehend cadet engineers, and that section fixes the commencement of their pay in the grade of assistant engineer when promoted thereto. (17 Op. Atty. Gen., 329. See note to sec. 1522, R. S., as to cadet engineers.) Retired officers.— The act of June 22, 1874, chapter 392, was manifestly designed to fix the commencement of the increased pay of pro- moted officers in active service onlv. (17 Op. Atty. Gen., 495.) Officer retired after nomination for pro- motion. — An officer who ciualified and was nominated by the President for promotion to the grade of rear admiral, to fill a vacancy oc- curring February 18, 1886, but who was retired on account of age prior to his confirmation by the Senate, may, if subsequently confirmed, be commissioned as a rear admiral with rank from the date of said vacancy and with the retired pay of that grade. (18 Op. Atty. Gen., 393; compare note to sec. 1-588, R. S.) "Vacancy" defined. — An office which has just been created and has never been filled is "vacant" within the meaning of the act of June 22, 1874 (18 Stat., 191), wliich pro\ddes that "any officer of the Navy who may be pro- moted in course to fill a vacancy," etc. An office created by law and never filled constitutes a vacancy. (Williams v. U. S., 47 Ct. Cls., 316.) "WTiere a statute enacts that there shall be 26 additional passed assistant and assistant pay- masters on the active list of the Navy, the President, in his discretion, mav direct that this whole number so added to the active list shall be of the grade of passed assistant pay- master. The President having directed that the whole number be added to the higher grade the effect of the law in conjunction ^\ith the President's order was to create vacancies in the grade of passed assistant paymaster, within the meaning of the act of June 22, 1874. (Wil- liams t'. U. S., 47 Ct. Cls., 316.) Where the law authorizes additional offices in the Navy and the President has discretion to add the increase to the higher of two grades, the vacancies are created by the law itself, and not by the President's order; when the Presi- dent issues his order, it relates back to the date of the law authorizing the additional appoint- ments. An officer promoted with date of rank subsequent to the date of the law, but prior to the date of the President's order, is entitled to the increased pay of the higher grade from the date of rank. (Crapo v. U. S., 50 Ct. Cls., 337, construing the act of March 4, 1913, above quoted, and explaining Williams v. U. S., 47 Ct. Cls., 316.) There is no reason in justice why an officer who has completed the service necessary to make him eligible to an office of higher grade, which office is vacant by reason of the fact that it has never been filled since it was created by law, should not be entitled to the same consid- eration as an officer who has become eligible to an office made vacant by death or resignation. (WilUams v. U. S., 47 Ct. Cls._, 316.) For other cases, as to definition of "vacancy " see note to section 1458, Revised Statutes. Date of vacancy. — The advancement in numbers and promotion by the President alone of certain officers under section 1506, Re\'ised Statutes, as amended by the act of June 17, 1878 (20 Stat., 144), did not create vacancies in their offices, as such advancement and promo- tion can be made only with the ad\ice and con- sent of the Senate; accordingly, junior officers nominated and commissioned to fill the vacan- cies resulting from such advancement of their seniors were not entitled, under the act of June 22, 1874 (18 Stat., 191), to pay in the higher grades from the dates of rank stated in their commissions, which were prior to the date that the Senate confirmed the promotions of their seniors and the date of such confirmation was the date of the resulting vacancies. (23 Op. Atty. Gen., 30 citing 6 Comp. Dec, 7.) For other cases as to date of vacancies, see note to section 1458, Re\dsed Statutes; see also cases noted above under " ' Vacancy ' defined. " Promotion of an enlisted man. — See note to section 1560, ReAdsed Statutes. Sec. 1562. [In cases of delayed examination.] If an officer of a class sub- ject to examination before promotion shall be absent on duty, and by reason of such absence, or of other cause not involving fault on his part, shall not be examined at the time required by law or regulation, and shall afterward be examined and found qualified, the increased rate of pay to which his promotion would entitle him shall commence from the date when he would have been entitled to it had he been examined and found qualified at the time so required by law or regulation ; and this rule shall apply to any cases of this description 832 The Navy. Pt. 2. REVISED STATUTES. Sec. 1562. which may have heretofore occurred. And in every such case the period of service of the party, in the grade to which he was promoted, shall, in reference to the rate of his pay, be considered to have commenced from the date when he was so entitled to take rank. — (15 July, 1870, c. 295, s. 7, v. 16, p. 333.) Whether section 1562 repealed by act of 1913. — In so far as section 1562, Revised Statutes, would restrict an officer's right to the pay of a higher grade to the date that he became entitled to examination for promotion, which in the case of an officer who had been suspended under section 1505, Revised Statutes, would be one year from the date of the examination upon which he had failed, the said section of the Revised Statutes is absolutely inconsistent with the act of March 4, 1913, allowing the pay of the higher grade from the date stated in the commission; and the later law must govern in a case where the date stated in the commission is prior to the date that the officer became entitled to reexamination. (Smith v. U. S., 50 Ct. Cls., 244.) The act of March 4, 1913, deals with the question of pay, and the act of 1874 and section 1562, Revised Statutes, also deals with ques- tions of pay. It is not necessary to determine whether the last act supersedes the other two, or merely extends similar benefits to other officers not included within the provisions of the former acts. It is sufficient to say that the term "all officers of the Navy" as used in the last act is comprehensive enough to include passed assistant surgeons. (Toulon v. U. S., 51 Ct. Cls., 87, 97.) Purpose of section 1562. — The evident and sole purpose of the law is to prevent an officer from being deprived by absence on duty of the increased pay which promotion would have given him. The meaning of the law is that if an officer is delayed in his promotion because he has not been examined, and his examination has been delayed by his absence on duty, he shall, when promoted, have the increased pay of the new grade to begin from the time when his examination should have taken place. _ (Hunt v. U. S., 116 U. S., 394.) The provisions of section 1562, taken from the act of July 15, 1870 (16 Stat., 333), were enacted to relieve officers, absent on duty when the time arrived for their promotion and examination, from the manifest injustice of keeping them out of the pecuniary and other benefits of promotion until such time as the exigencies or convenience of the service ad- mitted of their examination. The period of delay is often long, and during the delay other officers who entered the Navy at a later date more fiavorably stationed, are examined and' but for the provisions of section 1562 would take rank above and receive higher pay than their less fortunate fellow officers of longer serv- ice. (Howell V. U. S., 25 Ct. Cls., 288, 292.) The theory of the statute is that when the officer became due for promotion he was com- petent to perform the duties of the higher office, was then entitled to examination, and, being without fault, his examination was postponed; but the benefits of the statute are f undamentally based upon capacity and competency, and to hold otherwise would be to declare that, with- By act of June 22, 1874 (18 Stat., 191), it was provided that ' ' on and after the passage of this act, any officer of the Navy who may be promoted in course to fill a vacancy in the next higher grade shall be entitled to the pay of the grade to which promoted from the date he takes rank therein, if it be subsequent to the vacancy he is appointed to fill." By act of March 4, 1913 (37 Stat., 892), it was provided that "all officers of the Navy who, since the third day of March, eighteen hun- dred and ninety-nine, have been advanced or may hereafter be advanced in grade or rank pui'suant to law shall be allowed the pay and allowances of the higher grade or rank from the dates stated in their com- missions." See note to section 1495, Revised Statutes, as to when examinations are required; and see act of March 4, 1917 (39 Stat., 1171), em- powering commanding officers on foreign stations to convene examining boards when authorized by the Secretary of the Navy. Section 1562 not repealed by act of 1874. — There is no conflict between section 1562, Revised Statutes, which applies to officers promoted after a prescribed period of service without the necessity of any vacancy, and the act of June 22, 1874, which applies to officers promoted in course to fill vacancies. Accord- ingly, an officer promoted to the grade of chief boatswain after a specified period of service and not to fill a vacancy — there being no va- cancy for a chief boatswain other than that created by his own service and examination as boatswain — is entitled, under section 1562, Re- vised Statutes, to the pay of chief boatswain from the date he took rank as stated in his com- mission, that being the date on which he was entitled to examination for promotion. (Doyle V. IT. S., 47 Ct. Cls., 356.) The act of July 16, 1862, section 16 (12 Stat., 586), provided "that whenever any officer of the Navy, of a class subject by law or regulation to examination before promotion to a higher grade, shall have been absent on duty at the time when he should have been examined, and shall have been found qualified at a subsequent examination, the increased rate of pay to which he may be entitled shall be allowed to him from the date when he would have received it had he been found qualified at the time when his examination should have taken place." Held, that any right an officer may have had to claim back pay, under any construction of the act of July 16, 1862, from a date prior to the occurrence of the vacancy to which he was promoted, was cut off by the act of June 22, 1874 (IS Stat., 191), which latter act authorizes payment only from the time the promoted officer takes rank in the higher grade and sub- sequent to the date of the vacancy to which in course he is promoted. (Adamson v. U. S., 19 Ct. Cls., 623, 628.) 833 Sec. 1562. PL 2. REVISED STATUTES. The Navy. out the capacity to perform the duties of the position, the officer was entitled to pay. (Aus- tin r. U. S., 20 Ct. Cls., 2m.) When entitled to examination. — Under a misconstruction of the law a practice grew up in the Navy Department by which promoted officers were allowed the pay of their new grade from the time when they became eligible for examination; but this was corrected by the Secretary of the Navy in 1877, who recom- mended that the increased pay of a promoted officer should be allowed only from the time when a vacancy occurred to which he could have been promoted if an opportunity for ex- amination had been given him. This recom- mendation was based on a correct construction of the statute. (Hunt v. U. S., 116 U. S., 394.) Under the pro\dsions of the act of July 16, 1862 (12 Stat., 586, sec. 16), an officer of the Na-s'y of a class subject by law or regulation to examination before promotion to a higher grade was not entitled to be examined until his turn for promotion had arrived or was near at hand. (Hunt V. U. S., 116 U. S., .394.) Under a regulation which pro\dded that "candidates for promotion to the grade of chief engineer must have served at least two years at sea as first assistant engineers on board a naval steamer" a first assistant engineer became eligible to examination for promotion when he had served two years at sea upon a naval steamer; but he was merely eligible. He was not entitled to be examined until his turn for promotion had arrived or was near at hand. In no event, therefore, could he demand that the increased pay of his new gi'ade should begin until he had a right to be examined for promo- tion. It would be an unwarranted construction of the statute and regulation to hold that as soon as a first assistant engineer had served two years at sea on board a naval steamer he was entitled, as a matter of right, to an immediate examination whether there was a vacancy in the next higher grade to which he could be promoted or not; and that if his examination was delayed by his absence on duty he could, when examined and promoted, demand the pay of a chief engineer from the time when he had completed his two years' service at sea. (Hunt V. U. S., 116 U. S., 394.) For other cases, see note to section 1495, Re- vised Statutes. OflScer promoted subject to examina- tion. — An officer nominated and confirmed for promotion, subject to the condition that his commission be \vithheld until he pass an ex- amination required by law, will not be entitled to the salary of the office until he comply. Un- less there be a holding of an office, de facto or de jure, there is no right to its salary. (Crygier v.V. S., 25 rt. ris., 268.) Officer failing upon examination for pro- motion. — If a naval officer's examination for promotion be postponed through no fault of his, and he afterwards be examined and found qualified, the increased rate of pay to which his promotion would entitle him shall commence from the date when he would have been en- titled to it had he been examined and found qualified at the time so required by law or regulation; but this does not extend to officers who upon examination, being found not quali- fied, must be suspended under section 1.505, Revised Statutes, from promotion for one year. (Austin V. U. S., 20 Ct. Cls., 269.) For other cases, see note to section 1505, Re- vised Statutes; and see specific cases noted below. Section 1562 applicable to warrant offi- cers. — An officer in the Navy whose promotion depends not upon vacancies occurring but upon length of service as a boatswain and examina- tion for promotion is entitled to the increased pay of the office of chief boatswain from the date on which he became entitled to examina- tion. In such case he is entitled to the in- creased pay, not under the act of June 22, 1874 (18 Stat., 191), which relates only to promo- tions in course to fill vacancies, but under sec- tion 1562, Revised Statutes. In this case the officer was promoted on April 14, 1905, to take rank as chief boatswain from March 6, 1905, the date he became entitled to examination. Held, that he is entitled to increased pay from said date of rank. (Doyle v. U. S., 47 Ct. Cls., 356.) Act of March 4, 1913, construed liter- ally. — If the act of March 4, 1913, quoted above, means anything, it was intended by Congress thereby to confer upon the appointing power the right to name the date upon which an officer advanced in grade or rank should take such grade or rank and receive pay and allowances accordingly. This is the plain language of the law. (Smith v. U. S., 50 Ct. Cls., 244.) The act of March 4, 1913 (37 Stat., 892), would seem to be too plain for construction. The said act, in language which can not be mis- understood, provides that officers "shall be al- lowed the pay and allowances of the higher grade or rank: from the date stated in their com- missions." (Smith V. U. S., 50 Ct. Cls., 244.) The act of March 4, 1913, is especially free from ambiguity, and was intended to fix a date from which officers . coming within its terms should be paid. It is designed to establish uni- formity, and set at rest disputations \\-ith re- spect to its subject matter, by bringing the whole subject of pay vvithin fixed, definite, and certain limitations. (Crapo v. U. S., 50 Ct. Cls., 337.) An officer's commission determines the date it was intended he should take rank, and he is entitled under the act of March 4, 1913, to the pay and allowances fixed therefor by law from said date. (Crapo v. U. S., 50 Ct. Cls., 337.) The single question presented in a case aris- ing under the statute of March 4, 1913, is. Was the officer's status such as to entitle him to pay from the date stated in his commission? ( Crapo V. U. S., 50 Ct. Cls., 337.) If an officer promoted to a higher office was eligible to the office on the date stated in his commission, he is entitled under the act of March 4, 1913, to the pay and allowances of the higher office from said date; if he was not, neither the court nor any administrative officer of the Government has a right to alter the date of his commission or to change the essential proceedings followed by the President in doing what it may be presumed he thought he had a right to do. (Crapo v. U. S., 50 ('t. ("Is., 337.) Erroneous date in commission can not be changed by the courts. — ^Tien the Presi- 834 The Navy. PL 2. REVISED STATUTES. Sec. 1562. dent, acting in pursuance of law, nominates and appoints an officer, and the Senate con- firms the appointment, his commission there- upon issued is his warrant of authority, and the date thereof can not be changed, eliminated, or substituted by an administrative officer of the Government nor by the com't. (Crapo v. U. S., 50 Ct. Cls., 337.) The administrative officers can not change the date of rank, neither can the court change the commission. The right to change it rests with the appointing power. (Toulon v. U. S., 51 Ct. Cls., 87.) Erroneous date of commission not con- trolling under act of March 4, 1913. — Under the act of March 4, 1913, the date stated in the commission is not controlling; the court can not change the date, where it appears to be erroneous, but it can refuse relief where the date is erroneous. (Downes v. U. S., 52 Ct. Cls., 237, 240.) The statute of March 4, 1913, does not author- ize paj^ and allowances where the date stated in the commission is a date prior in point of time to that on which the officer was eligible to promotion to the grade to which he is pro- moted. (Toulon V. U. S., 51 Ct. Cls., 87.) The language of the Court of Claims in Smith V. United States (50 Ct. Cls., 244, 249, above noted) implies, as a matter of course, that in naming the date upon which an officer pro- moted should take rank and receive pay positive law is not ignored. (Toulon v. U. S., 51 Ct. Cls., 87.) WTiere the commission issued to a naval officer shows that the date of rank is incorrect he can not, by virtue of the act of March 4, 1913, recover pay from the date so stated. As he can not recover pay from the date stated in his commission in such case, he can not recover at all. (Toulon v. U. S., 51 Ct. Cls., 87.) Wliere an erroneous date is stated in the com- mission, and the increased pay of the higher grade denied by the Court of Claims for that reason, and the President, with the ad\dce and consent of the Senate, issues a new commission to correct the date of rank pre\dously stated, the increased pay will be allowed from the date stated in the new commission. (Toulon v. U. S., 52 Ct. Cls., 333.) Act March 4, 1913, requires that ad- vancement be pursuant to law. — The statute of March 4, 1913, does not provide that when an officer is advanced in grade or rank he shall haA'e the pay and allowances of the higher grade or rank from the date stated in his com- mission, but it does provide that when the ad- vancement is "pursuant to law" he shall have them. When he is advanced or promoted contrary to law, if such a case is supposable, or when the period of suspension required by sec- tion 1505, Re\ised Statutes, for instance, is overlooked or disregarded, he can not be said to have been advanced pursuant to law; and in such case he can not be entitled to the pay and allowances of the higher grade from the date stated in his commission. (Downes v. U. S., 52 Ct. Cls., 237.) The Court of Claims did not hold in the cases of Smith, Crapo, or Toulon (50 Ct. Cls., 244, 342, and 51 Ct. Cls., 87, noted above), and does not now hold, that the act of March 4, 1913, authorizes the fixing of a date in the commis- sion from which the rank begins, which is con- trolling on the court regardless of whether the promotion was made pursuant to law or not (Downes v. U. S., 52 Ct. Cls., 237.) The act of March 4, 1913, contemplates that the officer will be advanced under and in ac- cordance with law, and that the date from which the higher rank begins will be stated in pursuance of law. Conversely, it does not contemplate that an arbitrary date will be chosen, nor that an officer will be advanced in contravention of the positive requirement that he shall not be promoted or advanced while under suspension for a failure to professionally qualify when examined. (Downes v. U. S , 52 Ct.. Cls., 237.) Under the act of March 4, 1913, the court has the right to inquire as to whether there was a vacancy, and also the right to inquire whether the date of commission was prior to any va- cancy, or whether any positive law had been ignored in fixing the date of rank in the com- mission; but ordinarily the court can not look into a matter relating purely to administra- tive action. (Downes v. U. S., 52 Ct. Cls 237, 243.) Where a machinist was advanced to the grade of chief macliinist, and given a date of rank in the higher grade which, in the opinion of the Court of Claims, was prior to the date on which he became eligible for promotion, held, that he was not promoted in grade or rank pursuant to law, and is illegally in the ser\dce; his claim for difference in pay must therefore be denied. (Hooper v. U. S., 53 Ct. Cls., 90.) An officer was actually commissioned as passed assistant surgeon on July 25, 1912, by promotion from the grade of assistant surgeon. On that date he. was eligible to promotion, and his appointment was therefore pursuant to law. His commission, however, purported to give him rank in the higher grade from April 11, 1911, on which date he was not eligible to pro- motion. It would be a too literal \'iew of the act of March 4, 1913, to hold that his promotion was pursuant to law, because at the time of his actual promotion such promotion could legally be made. The date which the statute contem- plates would be stated in the commission is that upon which the officer becomes eligible to promotion, because the statute regulates the pay during the period of constructive ser\ice, and therefore the court must take notice of the date when such constructive ser^dce can begin, pursuant to law. The ascertainment of that date is confined in the first instance to the ap- pointing power. (Toulon v. U. S., 51 Ct. Cls., 87.) The promotion of an assistant surgeon before completing three years' service would not be pursuant to law, and likewise his promotion during a period of six months' suspension under section 1505, Re^dsed Statutes, as amended, would not be pursuant to law. Accordingly, held, that he was not adA'anced pursuant to law, because he was given a date of rank prior to the expiration of his period of suspension. (Tou- lon V. U. S., 51 Ct. Cls., 87.) Specific cases involvinfi;' retroactive rank.— See cases noted above, under this sec- tion; see aUo notes to sections 1560 and 1561, 835 Sec. 1562. PL 2. REVISED STATUTES. The Navy. Re\'i8e(i Statutes; and see note to section 1458, Revised Statutes, under "Antedating rank on promotion. " A lieutenant (junior grade) became due for promotion to fill a vacancy which existed in the grade of lieutenant on February 1, 1898; Iw reason of absence on duty on board the U. S. S. Maine he could not be examined; on February 15, 1898, he was injured in the destruction of the Maine, from which injuries he died in June 1898; in the meantime, after his injuries and prior to his death therefrom, he was commis- sioned a full lieutenant to rank from P'ebruary 1, 1898. He was allowed in his lifetime the pay of a full lieutenant from the date he took rank, to which he was clearly entitled in the application of section 1562 and. the act of June 22, 1874, chapter 392. Held, that at the time of his death he was a full lieutenant, and that his widow, under the act of March 30, 1898 (30 Stat., 346, sec. 2), was entitled to a sum equal to 12 months' sea pay of the grade of lieutenant, which is the amount that the officer would have been entitled to under section 1562, Revised Statutes, and the act of June 22, 1874 (18 Stat., 191), had he survived. (Blandin v. U. S., 35 Ct. Cls., 568, distinguishing Swan v. U. S., 113 U. S., 747.) An assistant surgeon in the Navy became due for promotion to passed assistant surgeon to fill a vacancy which occurred on July 1, 1897; he was not promoted until February 13, 1899, when he was commissioned as passed assistant surgeon to rank from July 9, 1897. Held, that in consequence of section 1562, Revised Stat- utes, and the act of June 22, 1874 (18 Stat., 191), his rate of pay on ^lay 1, 1898, was that of passed assistant surgeon, and should be so computed for the purpose of determining his share in the dis- tribution of bounty under section 4631, Re- vised Statutes. (Engagement at Manila Bay, 36 Ct. Cls., 206, 209, citing Blandin v. U. S., 35 Ct. Cls., 568.) Where an officer was entitled to his first ex- amination for promotion on March 3, 1909, and through no fault of his own such examination was delayed until May 17, 1909; and he failed on such examination and was suspended from promotion, under section 1505, Plevised Stat- utes, for one year from May 17, 1909; and he was again examined on June 10, 1910, and pro- moted with date of rank in his commission as March 3, 1910, being one year from the date he originally became due for promotion. Hdd, that under the act of March 4, 1913, he was en- titled to pay from the date so stated in his com- mission, and that it was but doing him justice to date his rank one year later than the date when he was entitled to his first examination. (Smith v._ U. S., 50 Ct. Cls., 244.) An assistant surgeon becoming eligible for promotion to passed assistant surgeon after three years' service and who failed profession- ally upon examination for promotion, was again eligible for promotion, under section 1505, Revised Statutes, as amended, after the expiration of six months from the date he originally became due. Where he was com- missioned in the higher grade, upon qualifying by reexamination, with a date of rank earlier than six months from the date he originally became due for promotion, he was not enti- tled to pay from the date of rank so stated in his commission. (Toulon v. U. S., 51 Ct. Cls., 87; see also note to sec. 1505, R. S.) The act of March 3, 1915 (38 Stat., 942), created in the Navy the grades of acting pay clerk, pay clerk, and chief pay clerk, and rendered eligible for commission as chief pay clerks, paymasters' clerks then in the Navy and former paymasters' clerks whose appointments had been revoked prior to the act and who had not less than six years actual service as pay- masters' clerks. Hdd, that a paymaster's clerk who was commissioned in accordance A\ath said act as chief pay clerk was not "advanced in gi'ade or rank pursuant to law' within the meaning of the act of March 4, 1913; that said paymaster's clerk was not a member of the new corps created by the act of 1915 until he was commissioned therein ; and that his appoint- ment as chief pay clerk was no more an advance- ment in giade or rank than would have been the appointment of a former paymaster's clerk ha\dng the requisite qualifications; that in either case the appointment would be that of an outsider, who had no grade or rank as a warrant or commissioned officer at the time of such appointment. The question is not the same as that in the case of Smith v. United States (noted above), in which a machinist was pro- moted to the grade of chief machinist pursuant to the law which in terms referred to such ad- vancement as a promotion. Accordingly, in this case, where the officer was commissioned as chief pay clerk on August 3, 1915, but was given date of rank as July 1, 1915, he was not entitled to pay as chief pay clerk from the date of rank so stated in his commission. (Seifert v. U. S., 52 Ct. Cls., 40.) An officer became due for promotion by seniority to fill an existing vacancy in the next higher grade; he was found upon exam- ination incapacitated for service by reason of hernia contracted in the line of duty, and therefore not recommended by the board for promotion; the Bureau of Medicine and Surg- ery recommended that he be ordered to a na^•al hospital for operative treatment, and that he be reexamined when he had recovered to determine his physical fitness for promotion; the Secretary of the Navy, reciting the rec- ommendation of the Bureau of Medicine and Surgery, transmitted the record to the President advising that the findings and rec- ommendations of the board of medicial ex- aminers be approved, with a view to effect- ing the recommendation of the Bureau of Medicine and Surgery. The President's in- dorsement was as follows: "The findings and recommendation of the board in thia case are approved." Thereafter the officer was admitted to the naval hospital for opera- tive treatment, and ha\-ing subsequently passed the required examinations was pro- moted from the date of the vacancy which had been held open for liim in the meantime. Held, that the officer was ad^'anced in grade or rank pursuant to law under the act of March 4, 1913, and is entitled to the pay of the higher grade for constructive service from the date of the vacajicy, as stated in his commission; further held, that it would be too strict, if not strained, a construction of the President's 836 The Navy. Pt. 2. REVISED STATUTES. Sec. 1562. action to say that he merely approved the finding of the l)oard of medical examiners, when as a matter of fact he had before him not only their report hut the recommendation of the Bureau of Medicine and Surgery and the advice thereon of the Secretary of the Navy. It was not an unreasonable construc- tion' that the President's approval of the board's findings and recommendation in- cluded an approval of the recommendation of the BTU-eau of Medicine and Surgery. Fur- ther, held, that section 1505, Revised Statutes, as amended, relating to suspension from promotion applies to officers not professionally qualified, and is not applicable in a case where the examination develops merely a physical disqualification. (Downee v. U. S., 52 Ct. Cls., 237; see also note to sec. 1505, R. S.) An assistant surgeon who, on original ap- pointment as such, executed his oath of office on December 4, 1907, but whose commission, in accordance with administrative custom, fixed his date of rank as November 29, 1907, may be regarded as becoming eligible for promotion after three years from the date of rank so stated in his original commission, instead of requiring three years' actual ser^-ice; and the said officer ha^•ing failed on examina- tion for promotion and been suspended for six months, in accordance with section 1505, Revised Statutes as amended, he again be- came eligible for promotion after the expira- tion of three years and six months from the date he took rank as stated in his original commission, that is, on May 29, 1911; and having been promoted to the gi-ade of passed assistant surgeon to rank from the last-named date, he was entitled under the act of March 4, 1913, to be paid from the date of rank so stated in his commission. (Toulon v. U. S., 52 Ct. Cls., 333.) A macMnist in the Na\'y become eligible for promotion to chief machinist in December, 1912; in February, 1913, a naval examining board reported the said machinist qualified for promotion; however, owing to unfavorable reports as to fitness, the department recom- mended and the President directed in April, 1913, that final action on the recommendation be suspended for one year; in October, 1914, he was reexamined and found suffering from neurasthenia contracted in line of duty and thereby incapacitated for service, and was not recommended for promotion; the President approved this report of the board of medical examiners on November 21, 1914; subsequent- ly he was examined 1)y a naval retiring board and found temporarily incapacitated for active ser\'ice by reason of neurasthenia, and recommendation was made that he be granted three months' sick leave; this rec- ommendation was approved by the President on January 2, 1915; in June, 1915, he was again examined by a naval retiring board and found not incapacitated for active duty, and the President approved this report; in Septeml)er, 1915, he was again examined for promotion and found physically qualified, but in Novemljer following the naval examin- ing l)oard reported him as mentally and moral- ly but not professionally qualified, and did not recommend him for promotion; in De- cember, 1915, the President approved this repoi't and directed that he be suspended from promotion for period of six months; in July, 1916, he was examined by a board of medical examiners and found physically in- capacitated for duty and it was recommended by the board that he be reexamined physical- ly in six months; no action was taken by the President on this report; in January, 1917, he was reexamined l>y a board of medical examiners and a naval examining board, found qualified by both l)oards, and recom- mended for promotion. These reports were approved by the President and on April 30, 1917, the officer was appointed a chief machin- ist in the Na\'y to rank from June 27, 1913, being six months after the date that he orig- inally became due for promotion; he was paid as machinist to January 29, 1917, and claimed the difference in pay between that of machinist and that of chief machinist from June 27, 1913, the date of rank stated in his commission. Held, that under sections 1493, Re^'ised Statutes, and section 1505, Re\ised Statutes, as amended by the act of March 11, 1912 (37 Stat., 73), the act of June 18, 1878 (20 Stat., 165), and the act of March 4, 1913 (37 Stat., 892), he was not promoted in grade or rank piu-suant to law, l)ecause he was not eligible for promotion on the date of rank stated in his commission, and he is therefore illegally in the service and not entitled to difference of pay as claimed. (Hooper v. U. S., 53 Ct. Cls., 90; see also note to sec. 1505, R. S.) _ An ensign in the Na^^ became eligible for promotion by length of ser\dce to the grade of lieutenant (junior grade) on January 31, 1910; he successfully passed his examination, as re- quired by section 1496 of the Re\dsed Statutes, but was found not physically qualified by the medical board acting under section 1493, Re- vised Statutes, and it was recommended by said board that he be further examined physi- cally in three months, in order to ascertain the extent of his incapacity. The findings and recommendations of both boards were approved by the President on December 12, 1910. Being subsequently examined and found physically qualified, he was commissioned as a lieutenant (junior grade) on May 2, 1911, to rank fi'om January 31, 1910. Held, that he was entitled to the pay of lieutenant (junior gi-ade) from the date stated in his commission; that this case is more analogous to that of Downes v. United States (above noted) than that of Hooper v. United States (above noted). (Wadsworth v. U. S., 55 Ct. Cls., 383.) Distinction between rank and oflB.ce.— The distinction between rank and office is not without importance when considering the right of the officer to take rank prior to the time when he is actually commissioned in office. To be an officer he must pass an examination, be nominated to and confirmed by the Senate, and receive a commission; but he takes rank as fi-om the date he became eligible to promotion to such office. His right to the rank becomes absolute when he is actually commissioned, and before that time he was merelv eligible to it. (Toulon V. U. S., 51 Ct. Cls., 87, 94.) 837 Sec. 1663. PL 2. REVISED STATUTES. The Navy. The rule and custom of promotion in rank from tlie date the ollicer becomes eligible to promotion tinda recognition in many statutes, of which the act of June 22, 1874, and section 1562, Revised Statutes, referring to pay be- tween the date of commission and date of rank, are examples. The date of an officer's rank on promotion is, therefore, that on which he be- comes eligible to promotion, and though his actual appointment in the higher grade be at a later time, his date of rank relates back to the period stated. (Toulon v. U. S., 51 Ct. Cls., 87, 93.) An officer takes rank in his grade from the time when the law entitles him to do so, and not necessarily from the time when he is com- missioned. (Howell V. U. S., 25 Ct. Cls., 288; Toulon V. U. S., 51 Ct. Cls., 87, 93.) Section 1562, Ile\ased Statutes, the act of June 22, 1874, and the act of March 4, 1913, each has in contemplation the custom of ad- vancement according to number in gi-ade, and that there is one date when the officer is actually commissioned in the higher grade, and a pre- ceding date upon which he is eligible to pro- motion thereto. Referring, as it does, to the matter of pay, the purpose of the act of March 4, 1913, may be rendered in the language of sec- tion 1562, providing that "the period of service of the party in the giade to which he was pro- moted shall, in reference to the rate of his pay, be considered to have commenced from the date when he was so entitled to take rank." (Toulon V. U. S., 51 Ct. Cls., 87, 97.) The officer's service in the grade to which promoted actually begins on the date that he is actually commissioned, but the date upon which he became eligible to promotion may be denominated the date of his constructive sei"v- ice in such grade. The act of March 4, 1913, refers to this latter date, from which he con- structively enters the higher grade and takes rank upon being actually commissioned at a subsequent date. By observing the distinction which is to be taken under the act of 1913 be- tween actual and constructive service, and the fact that the pay and allowances therein pro- vided for relate to the period of such con- structive service and have no relation to the period of actual ser\dce following the date of commission, we find the proper application for the words ' 'advanced in grade or rank, pursuant to law," as used in said act. (Toulon v. U. S., 51 Ct. Cls., 87, 97.) A lieutenant in the Navy received additional pay for duty as aid to a rear admiral from July 1, 1914, to August 20, 1914; thereafter he was commissioned as a lieutenant commander, with rank as such from July 1, 1914. As a lieutenant commander he would not be entitled to the additional pay allowed aids to rear admirals. Held, that the Government is not entitled to recover the sum allowed him for additional pay as aid during the period in question; that he was in fact a lieutenant and not a lieutenant commander dicing said period ; that he did not become a lieutenant commander until a subse- quent date, and the fact that his commission retroactively gave him rank as a lieutenant commander during the period when he was in fact serving as a lieutenant, and that he was entitled to pay as a lieutenant commander from date of rank pursuant to the act of March 4, 1913, can not serve to make him a lieutenant and a lieutenant commander in fact at the same time. (Downes v. U. S., 52 Ct. Cls., 327.^ Sec. 1563. [Advances to persons on distant stations.] The President of the United States may direct such advances, as he may deem necessary and proper, to such persons in the naval service as may be employed on distant stations where the discharge of the pay and emoluments to which they are entitled can- not be regularly effected. — (.31 Jan., 1823, c. 9, s. 1, v. 3, p. 723.) Amendment to this section was made by act of March 4, 1917 (39 Stat., 1181), which pro- vided that "hereafter advances of pay not to exceed three months' pay in any one case may be made to officers ordered to and from sea duty and to and from shore duty beyond the seas, under such regula- tions as the Secretary of the Navy may prescribe." By section 3648, Revised Statutes, advances of public money were prohibited, with a saving clause with respect to persons em- ployed in the military and naval service similar to the provisions of section 1563, Revised Statutes. Other exceptions have been made by specific statutes, as, for example, act of August 22, 1912 (37 Stat., 32), relating to partial payments to con- tractors doing work for the Navy Depart- ment; act of October 6, 1917, section 5 (40 Stat., 383), relating to contractors for supplies for the War and Navy Depart- ments "during the period of the existing emergency"; act of April 27, 1904 (33 Stat., 403), relating to pm-chase of mileage books and transportation tickets for officers and other persons in advance of travel per- formed under the Navy Department; and various laws relating to pajiuent for sub- scriptions to newspapers and periodicals, which are noted under section 192, Re- vised Statutes. Validity of Navy Regulations relating to advances. — Prior to the amendment of March 4, 1917, noted above, it was held by the Comp- troller of the Treasury that Navy Regulations (art. R 4458, Navy Regs., 1913) which author- ized advances in pay to officers ordered to duty at sea or on shore beyond the continental limits of the United States were invalid under modern conditions as applied to officers ordered to duty where disbursing officers are stationed who could regularly make payments to them of amounts due for pay and emoluments, and that such regulations should be amended to meet the requirements of sections 1563 and 3648, Revised Statutes. (21 Comp. Dec, 733.) After said decision of the C'omptroller was rendered, it was held by the Judge Advocate General of the Navy, December 21, 1916 (file 838 The Navy. Pt. 2. REVISED STATUTES. Sec. 1565. 3980-1275), that the Navy Regulations in question, which had been in effect for many years with the full knowledge and acquiescence of the accounting officers and vnth the implied sanction of Congi-ess, should be obeyed by dis- bursing offxCers, citing the Attorney General's opinion of May 19, 1915 (noted under sec. 285, R. S.), and other opinions of the Attorney Gen- eral (see 2 Op. Atty. Gen.. 204, and 1 Op. Atty. Gen., 620, relating to advances to diplomatic officers going abroad). Certain minor modifi- cations were, however, made in article 4458 (Naw Regs., 1913), by C. N. R. 7 of September 15, 1916, and C. N. R. 10 February 25, 1918. (See art. 1803, Navy Regs., 1920; see also note to sec. 236, R. S., respecting jurisdiction of the accounting officers and the Secretary of the Navy; and note to sec. 161, R. S., respecting validity of Navy Regulations.) Sec. 1564. [Persons acting as paymaster.] Any person performing the duties of pa}T2iaster, acting assistant pa^Tnaster. or assistant paymaster, in a ship at sea, or on a foreign station, or on the Pacific coast of the United States, by appointment of the senior officer present, in case of vacancy of such office, in accordance with the provisions of section thirteen hundred and eighty-one, and not otherwise, shall be entitled to receive the pay of such grade wliile so acting.— (17 July, 1861, c. 4, s. 4, v. 12, p. 258.) See section 1381, Revised Statutes, and note thereto. Not entitled to dual compensation. — Under sections 1381 and 1564, ReAdsed Statutes, a person who holds no office under the Govern- ment may be given an acting appointment as paj-master, and in that case the sections may operate literally to entitle the appointee to the pay of the grade while so acting; but if the appointee holds another office under the Gov- ernment, he can not escape from the prohibi- tions of the Re^'ised Statutes, sections 1763 and 1765, prohibiting dual compensation. In such case it is the liberal custom of the Treasury Department to allow a person holding more than one office the compensation of that one which is larger. (Webster v. U. S., 28 Ct. Cls., 25.) Status of acting appointee. — A person appointed to act as paymaster in a ship at sea or on a foreign station, under the Revised Statutes, sections 1381 and 1564, does not therebv become an officer. A naval officer acting as pajTnaster is appointed to discharge the duties of an office which he does not hold. (Webster v. U. S., 28 Ct. Cls., 25.) Pay of acting appointee. — A person ap- pointed pajTQaster to fill the vacancy of a de- ceased officer on a ship at sea or in a foreign port is entitled to the pay of the office but not to the longevity pay of the officer in whose stead he is acting. (Webster v. U. S., 28 Ct. Cls., 25.) The offices of engineer and paATuaster in the Navy are incompatible, and he who holds them is not entitled to the compensation of both, but is entitled to the larger of the two. (Webster v. IT. S., 28 Ct. Cls., 25.) Termination of acting appointment. — The continuance of an appointment as "act- ing" pajTnaster, under Re\dsed Statutes 1381 and 1564, does not depend upon a discharge or revocation; it terminates when another pay- master reports for duty ; and the pay continxies at farthest only to the time when the acting offi- cer's accounts are made up. (Ostrander v. U. S., 22 Ct. Cls., 218.) Sec. 1665. [Chiefs of Bureau. Superseded.] This section provided as follo"ws: "Sec. 1565. The pay of chiefs of Bureau in the Navy Department shall be the highest pay of the grade to which they belong, but not below that of commodore." — (3 Mar., 1871, c. 117, s. 12, V. 16, p. 537.) It was superseded by act of March 3, 1899, section 7 (30 Stat., 1005), which pro\'ided that the pay of chiefs of bureaus shall be the highest pay of the grade to which they belong, not below that of commodore. Other modifications of the law as to pay of chiefs of bureaus were made bv act of May 13, 1908 (35 Stat., 128), which pro\dded that their pay and allowances * 'shall be the highest pay of the grade to which they belong, and not below that of rear admiral of the lower nine"; by o.ct of June 24, 1910 (36 Stat., 607), which pro\T.ded that their pay and allowances should be the highest shore duty pay and allowances of rear admirals of the lower nine; by act of August 22, 1912 (37 Stat., 328), which repealed the provisions of the act of June 24, 1910, with- out making any further pro\"ision on the sub- ject — the effect of which was to re^dve the act of Mav 13, 1908 (Comp. Dec, June 22, 1916 file 26254-2045); and by act of July 1, 1918 (40 Stat., 717 \ which provided that chiefs of bureaus in the Navy Department shall receive the same pay and allowances as chiefs of bu- reaus in the War Department. Chief of bureau dismissed by sentence of court-martial. — ^The chief of a bureau in the Nav}^ Department tried by court-martial and sentenced to be dismissed fi'om the posi- tion of chief of bureau and to be suspended from rank and duty in his pennanent grade, on furlough pay, for one year, which sentence was duly confirmed by the President, is not en- titled to recover the emoliunents of a chief of bureau for the remainder of the fouf-year term for which he was appointed. A naval court-martial has jurisdiction to sentence chiefs of bureaus to be dismissed from their office as such. (Smith v. U. S., 26 Ct. Cls., 143.) For other cases relating to the pay and allowances of chiefs of bureaus, see note to 8ec- tion 421, Re^'ised Statutes; see also note to sec- tion 1556, Revised Statut-es. 839 Sec. 1566. PL 2. REVISED STATUTES. The Navy. Sec. 1566. [Mileage and traveling expenses. Superseded.] This section pro\'ided as follows: "Sec. 15GG. An allowance of ten cents a mile may be made lO odlcers in the naval ser\'ice, and store-keepers on foreign stations for tiavelinp expenses when under orders. And an allowance may be made to ofiicers tra^•eling in foreign countries under ordere, for expenses of transportation of baggage necessarily in- curred. And no oITicer shall be paid mileage, except for travel actually performed at his own expense and in obedience to orders." — (3 Mar., 1835, 0. 27, s. 2, v. 4, p. 757. 17 July, 1862, c. 200, s. 7, V. 12, p. 595. 15 July, 1870, c. 295, s. 4, V. 16, p. 332. 16 June, 1874, c. 285, v. 18, p. 72. 3 Mar., 1875, c. 133, v. 18, p. 452.) Is was superseded by later enactments set forth below. By act of June 16, 1874 (18 Stat., 72\ it was provided "that only actual traveling expenses shall be allowed to any person holding employ- ment or appointment under the United States, and all allowances for mileage and transporta- tion in excess of the amount actually paid are hereby declared illegal; and no credit shall be allowed to any of the disbursing officera of the United States for pajonent or allowances in ^'iolation of this pro\T.sion." By act of January 18, 1875 (18 Stat., 297), it was pro\dded "that no allowance shall be made in the settlement of any account for traveling expenses unless the same be incurred on the order of the Secretaiy of the Navy, or the al- lowance be approved by him." By act of March 3, 1875 (18 Stat., 452), it was provided "that hereafter only actual traveling expenses shall be allowed to any person holding emploj-ment or appointment under the United States, except marshals, district attorneys, and clerks of the courts of the United States and their deputies; and all allowances for mileages and transportation in excess of the amount actually paid, except as above excepted, are hereby declared illegal; and no credit shall be allowed to any of the disbursing officers of the United States for pa\Tnent or allowances in violation of this pro^^sion." By act of June 30, 1876 (19 Stat., 65), it was pro\dded that so much of the act of June 16, 1874, above quoted, "as pro\'ides that only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States while engaged on public business, as is applicable to officers of the Navy so engaged, is hereby repealed; and the sum of eight cents per mile shall be allowed Buch officers while so engaged, in lieu of their actual expenses." By act of August 5, 1882 (22 Stat., 286), it was provided that "ofiicers of the Navy travel- ing abroad under orders hereafter issued shall travoi ])y the most direct route, the occasion and necessity for such order to be certified by the officer issuing the same; and shall re- ceive, in lieu of the mileage now allowed by law, only their actual and reasonable expenses, certified under their own signatures and ap- proved by the Secretary of the Navv." By act of July 7, 189S (30 Stat., 708), it was pro\aded "that nereafter the accounting officers of the Treasury shall not receive, examine, con- sider, or allow any claim against the United States for difference between mileage and ac- tual expenses which has been or maj^ be pre- sented by officers of the Navy, their heirs or legal representatives, under the decisions of the Supreme Court which have heretofore been adopted as a basis for the allowance of such claims, which accrued prior to July first, eighteen hundred and seventy-four." (See de- cisions of Supreme Court noted below, under "Act of 1876 allowed mileage for all travel by officers of the Navy.") By act of March 3, 1899, section 13 (30 Stat., 1007), officera of the line of the Navy, and of the i^ledical and Pay Corps, were given the same allowances, except forage, as officers of the corresponding rank in the Army. By act of June 7, 1900 (31 Stat.,"685), it was provided "that in lieu of traveling expenses arid all allowances whatsoever connected there- \vith, including transportation of baggage, offi- cers of the Navy traveling from point to point within the United States under orders shall hereafter receive mileage at the rate of eight cents per mile, distance to be computed by the shortest usually traveled route; but in cases where orders are given for travel to be per- fomied repeatedly between two or more places in the same vicinity the Secretary of the Navy may, in his discretion, direct that actual and necessary expenses only he allowed. Actual expenses only shall be paid for travel under orders outside the limits of the United States in North America." By act of March 3, 1901 (31 Stat., 1029), the foregoing provisions of the act of June 7, 1900, were repeated in identical language. By act of July 1, 1902 (32 Sut., 663), it Was provided "that hereafter in cases where orders are given to officers of the Navy or Marine C'orps for travel to be performed repeatedly between two or more places in such -^dcinity as in the (Uscretion of the Secretary of the Navy is ap- propriate, he may direct that actual and neces- sary expenses onlv be allowed." By act of April 27, 1904 (33 Stat., 403), it was pro\dded that "the Secretary of the Navy is hereby authorized to continue to purchase such mileage books, commutation tickets, and other similar transportation tickets as may in his discretion seem necessary, and to furnish same to officei's and others ordered to perfonn travel on otlicial business; and pajTueut for such transportation tickets upon their receipt, in accordance with commercial usage, or prior to the actual performance of the travel involved, shall not be regarded as an advance of pul:)lic money within the meaning of section thirty- six hundred and forty-eight of the Revised Statutes." By act of February 26, 1907, section 6 (34 Stat. , 997) , provision was made for travel of offi- cers detailed to the Light-House establishment. By act of March 3, 1909 (35 Stat., 774\ it was provdded "that hereafter the settlement of all traveling expense claims, where the pajTiient of such is authorized by existing law, and the determination of distances and of what consti- tutes the shortest usually traveled route in the meaning of laws relating to traveling allowances. 840 The Navy. PL 2. REVISED STATUTES. Sec. 1566. shall accord to such rules as the Secretary of the Navy may prescribe." By act of June 30, 1914 (38 Stat., 393), it was provided "that hereafter no mileage shall be paid to any officer where Government trans- portation is furnished such officer." By act of May 18, 1920, section 12 (41 Stat., 604), provision was made for transportation being furnished by the Government to the wife and dependent child or children of officers and certain enlisted men of the Navy and Marine Corps upon permanent change of station by the latter. The same act and section further pro- vided that "the personnel of the Navy shall have the benefit of all existing laws applying to the Army and the Marine Corps for the trans- portation of household effects." (See also statutes noted under sec. 1135, R. S., as to transportation in AiTny transports.) By clauses in the annual naval appropriation acts, under "Bureau of Navigation," officers of the Navy on duty with traveling recruiting parties are entitled to "actual and necessary expenses in lieu of mileage." (See, e. g., act June 4, 1920,41 Stat., 815.) By clauses in the annual na\'al appropriation acts, under "Pay, miscellaneous," provision is made "for mileage, at 5 cents per mile, to mid- shipmen entering the Naval Academy while proceecUng from their homes to the Naval Academy for examination and appointment as midshipmen"; for "actual traveling expenses of female nurses"; and for "mileage to officers of the Navy and Na^■al Reserve Force while traveling under orders in the United States, and for actual personal expenses of officers of the Navy and Naval Reserve Force while traveling abroad under orders." (See, e. g., act June 4, 1920, 41 Stat., 812.) As to travel allowance, Naval Reserve Force, see note to section 1556, Revised Statutes, under "Naval Reserve Force." As to ti'ansportation and necessary expenses of members of the Nurse Corps (Female), when traveling under orders, see note to section 1556, Revised Statutes, under "Dental Corps and Nurse Corps (Female)." Section 1566 repealed and later revived with modifications. — The provisions of sec- tion 1566, Revised Statutes, allowing ten cents a mile to naval officers ' ' for traveling expenses when under orders," were repealed by the act of June 16, 1874 (18 Stat., 372), but became in force, though modified, by reason of the act of June 30, 1876 (19 Stat., 65), which repeals so much of the act of June 16, 1874, "as is appli- cable to officers of the Nav^," and allows to them eight cents per mile in lieu of their actual expenses. (Steele v. U. S., 30 Ct. Cls., 8.) Section 1566 never actually went into effect, so far as the question of mileage is concerned, as by the act of June 16, 1874, it was proAdded that "only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States," etc. This act took effect in such a way as to operate to repeal the section referred to, so far as this subject was concerned, before the same ac- tually had effect. (15 Op. Atty. Gen., 309, citing sec. 5601, R. S., as to the effect of laws passed after Dec. 1, 1873.) The act of June 16, 1874, making appropria- tions for the support of the Army was in its terms applicable to every person holding em- ployment or appointment under the United States, and its obAdous purpose was to abolish all payments for traveling expenses in which a specific allowance per mile was made by law, and to establish the more equitable principle of paying the actual expenses of persons travel- ing in the ser\dce of the Government. (U. S. I'. Mouat, 124 U. S., 303.) Act of 1874 repealed only in part by act of 1876.— The act of June 16, 1874, wliich pro- \'ided that only actual traveling expenses shall be allowed to any person "holding employment or appointment under the United States, " ap- plied to all persons holding "employment or appointment" under the Government of the United States, including officers of the Navy. The later act of June 30, 1876, which excepted "officers of the Na\-y" from the application of the former act, did not repeal the whole of that statute, even as applicable to the entire Navy, but selected a certain class of persons in the Navy to whom it should no longer apply. This class of persons is designated as "officers of the NaA-y. " No other person holding an employ- mentor appointment under the United States, although in the Navy, was thus relieved from the effect of the act of 1874. The words "offi- cers of the Navy,' ' in the act of 1876, must be confined to those who are, properly speaking, officers of the NaA-y, that is, to those who are appointed by the President, or by a court of law, or by the head of a department, that is, by a member of the President's cabinet. (U. S. v. Mouat, 124 U. S., 303. See below, as to per- sons held not officers of the Na\y under mileage laws. ) Act of March 3, 1899, extended Army mileage laws to Navy. — Mleage is an allow- ance, and officers of the Navy coming within the operation of section 13 of the NaA^ per- sonnel act of March 3, 1899 (30 Stat., 1007), be- came entitled only to the same rates of mileage as pro\dded by law or regulations for officers of the Army ; i. e., to a maximum of 7 cents a mile. (7 Comp. Dec, 117. See later laws noted above.) Section 1566 repealed only in part by act of March 3, 1901.— The act of March 3, 1901 (31 Stat., 1029), repeals section 1566, Re- \'ised Statutes, only as to the amount per mile allowed to officers for mileage, but does not re- peal the proAision in section 1566 that "no offi- cer shall be paid mileage except for travel actu- ally performed at his own expenses and in obe- dience to orders." (Katzer v. U. S., 52 Ct. Cls., 32.) Act of 1876 allowed mileage for aU travel by officers of the Navy. — The act of June 30, 1876 (19 Stat., 65), estabhshes one rule, mileage for all travel by officers of the Navy, whether on land or sea. The Government can not by buying for a naval officer traveling under orders a railroad or steamship ticket, reinstate the "actual expense" rule repealed by the said act. (Temple v. U. S., 14 Ct. Cls., 377.) An officer of the Na\^ who wliile engaged in public business in 1878", traveled under orders, partly by land and partly by sea, the traAel by 841 Sec. 1566. PL 2. REVISED STATUTES. The Navy. sea not being in a public vessel, was, under the act of June 30, 1876 ( 19 .Stat., 65), entitled to mileage for the wholvj distance traveled . The accounting officers of the Treasury, in holding that for one class of travel he should have mile- age, and for the other his actual expenses, were attempting to make the law and not to construe it. (U. s. V. Temple, 105 U. S., 97. In this case the accounting officers allowed the officer mileage for the travel by land, and actual ex- penses for his travel by sea. The court said: "When this travel was performed there was not a line on the statute books of the United States which made any provision whatever, under any circumstances, for allowing officers of the Navy, when engaged on the public business, their actual expenses of travel. The only law ever enacted which made such provision had been expressly repealed by the act on which the appellee based his claim for mileage. ") The act of March 3, 1835 (4 Stat., 755), which pro\dded that 10 cents a mile should be allowed to naval officers for traveling expenses while traveling under orders, made no distinction between travel in and travel out of the countr}^ The construction put upon it by the Treasury Department to the effect that mileage should be paid for traveling expenses within the United States, but that the usual and necessary pas- sage money actually paid by officers returning from foreign service under orders or on sick leave, when they could not return in a public vessel, would be paid as theretofore, as well as the like expenses of officers going out, which construction was accepted by the Navy Depart- ment and embodied in the Navy Regulations, can not affect the plain provisions of the act. Under both the act of 1835 and the act of June 30, 1876, all traveling expenses were to be paid by mileage, and in neither act is there any in- dication of an intention of Congress to make a distinction between travel by sea or on land in foreign countries or in the United States. (U. S. v. Graham, 110 U.S., 219.) Prior to the decisions of the Supreme Covu-t noted above, the Attorney General had ren- dered an opinion to the following effect: It was known when the act of June 30, 1876, was passed that the construction which for years had been given by the Navy Department to the law of March 3, 1835, providing that mileage should be paid to officers of the Navy, limited the allowance of the same to those traveling within the lifnits of the United States. When, therefore, Congress reenacted the law sub- stantially in the same terms, and made no clear pro\'ision that the mileage should be paid to those officers who travel by sea and out of the limits of the United States, it must be deemed that in thus reenacting it has accepted the construction theretofore put upon a similar act by the Na\y Department. Accordingly, held, that under the act of 1876, mileage is to be al- lowed and paid to naval officers only when traveling within the United States, in lieu of their actual expenses, and that when traveling without the United States they are to receive their actual expenses alone. (15 Op. Atty. Gen., 309; the Supreme Court decisions noted above overruled this opinion of the Attorney General.) See act of July 7, 1898, noted above, which prohibited the accounting officers from allowing claims for differences between mileage and actual expenses, under decisions of the Su- preme Court, where such claims accrued prior to July 1, 1874. Actual expenses for travel abroad under act of 1882. — An officer of the Navy author- ized to appear before a court of inquiry on a foreign station, and ordered "on the conclusion of the investigation to return to Yokohama and there to remain until you receive further orders from the department," is "traveling abroad under orders " within the meaning of the act of August 5, 1882 (22 Stat., 286), allowing actual expenses for such travel. (Selfridge v. U. S., 28Ct. Cls.,440.) Traveling does not intend endless movement. A traveler is one who journeys to foreign lands; one who \asits strange countries and people; an officer, although not in movement while attend- ing a court of inquiry in a foreign country, or during a few days' detention waiting for a con- necting steamer, or during a few days spent in a foreign city on his way out, nevertheless was properly entitled to his expenses at such places. During his stops at these places his status was that of "traveling abroad under orders." He was in the condition of a traveler from the time he left the United States until he returned home. (Selfridge v. U. S., 28 Ct. Cls., 440; see also 10 Comp. Dec, 589; 12 Comp. Dec, 358; 25 Comp. Dec, 555; compare 25 Comp. Dec, 485.) The question whether traA-el is abroad or within the United States should be determined by the termini of the journey, rather than by the route actually taken. A naval officer traveling under orders from San Francisco to New York, by way of the Isthmus of Panama, is to be considered, under the statutes appli- cable to the case, as traveling under orders in the United States and as entitled to eight cents per mile, measured by the nearest traveled route. (U. S. v. Hutchins, 151 U. S., 542.) An officer is to be understood as traveling abroad when he goes to a foreign port or place under orders to proceed to that place, or from one foreign port to another. (U. S. v. Hutch- ins, 151 U. S., 542.) Why officers are allowed by Congress mileage in one case and not in the other is not altogether clear, but probably the reason is that travel at home is ordinarily for such short distances and the disbursements therefor are generally for such petty amounts that to save the necessity of the officer keeping a minute account of each outlay, and the accounting officers passing upon the reasonableness of every small item, it was thought better to allow the officer a fixed mileage by the shortest traveled route, leaving him at liberty under certain circumstances, and where his orders are not to proceed by a g articular route, to choose his own. (U. S. v. [utchins, 151 U. S., 542.) Actual expenses for repeated travel. — The act of June 7, 1900 (31 Stat., 685), author- izing actual expenses for repeated travel be- tween places in the same Adciuity, invests the Secretary of the Na\'y with discretion to deter- mine what places are "in the same vicinity;" 842 The Navy. PL 2. REVISED STATUTES. Sec. 1566. but the Secretary can exercise this discretion only where the travel must be performed "repeatedly between two or more places." Wliere the travel between two places was not repeated, the officer is entitled to mileage and not actual expenses. (Willits v. U. S., 38 Ct. Cls., 534.) The word "vicinity" in the statute has no fixed and definite meaning, and to determine what is or is not a vicinity in these days of express trains and trolley cars must be a matter of discretion, and this discretion is lodged in the Secretary, whose decision is not subject to review by the courts. (Willits v. U. S., 38 Ct. Cls., 534.) An order of the Secretary of the Navy which does not relieve an officer from duty at a navy yard, but imposes upon him additional duty at another, and requires his personal attention at both, entitles him to mileage for travel between the two and invests him with discretion to de- termine when his presence is necessary at either; such travel is travel "under orders." (Steele u. U. S., 30 Ct. Cls., 8.) Mileage not allowed when Government transportation furnished. — By "Govern- ment transportation, ' ' as used in the act of June 30, 1914 (38 Stat., 393), is understood transpor- tation on vessels owned or employed by the Government or by conveyances on land so owned or employed, but not transportation furnished on transportation request. Accord- ingly, held, that an officer of the Navy, travel- ing under proper orders in the United States, and furnished transportation on Government requests, is entitled to be paid mileage less cost of transportation furnished and any other expense incurred by the Government. (21 Comp. Dec, 690.) Where, under proper orders, a naval officer proceeded from his regular station to a certain point, took charge of a motor launch, and re- turned thereon to such regular station, said launch not being pro\dded with sleeping quarters or mess arrangements, he is not en- titled, for the return journey, either to reim- bursement of actual expenses incurred for meals and lodging en route, or to mileage allowance, since he was not performing repeated travel, and was furnished with GoA'ernment transpor- tation within the meaning of the act of June 30, 1914. (23 Comp. Dec, 368.) The act of June 30, 1914, was passed after the decision of the comptroller (20 Comp. Dec, 741), which held that a right to mileage was not lost because an officer traveled on a Govern- ment conveyance. (23 Comp. Dec, 368, 370.) Officer performing travel while under suspension. — An officer of the Na'vy ordered to travel to his home in the United States during his suspension from duty by sentence of a general court-martial is entitled to reim- bursement for his actual necessary expenses incurred in traveling from Manilla to San Fran- cisco under said orders. (14 Comp. Dec, 684.) Officer performing travel in answer to a subpoena. — An officer of the Navy is entitled only to actual and necessary expenses for travel performed in attending as a witness before a United States grand jury, in response to a sub- poena, notwithstanding that he may have been ordered by his superior officer to perform the travel in answer to said subpoena. (4 Comp. Dec, 146.) Officer ordered to attend funeral of another officer. — See 11 Comp. Dec, 181, noted under section 1587, Re\ised Statutes. Officer traveling to and from leave of absence. — An officer of the Na\'y ordered to proceed to his home and granted a leave of absence, and at the expiration of such leave to return to his station, is traveling for his own pleasure and benefit and not on public business and he is not entitled to mileage. (16 Comp. Dec, 611.) It matters not that the officer's leave was not to commence until he arrived at his home, and that the travel to his home was performed be- fore the leave began; such travel was in no sense upon public business, and did not entitle the officer to mileage. (17 Comp. Dec, 252.) By act of March 4, 1911 (36 Stat., 1303), it was provided that "the Auditor of the Navy Department is directed to allow mileage to officers of the Navy who have heretofore been disallowed same by reason of a decision of the Assistant Comptroller of the Treasury dated March seventeenth, nineteen hundred and ten; and to pay said allowances out of any balances of the appropriations for pay, miscellaneous, of the Na\^\" (The decision referred to was published in 16 Comp. Dec, 611, noted above.) If an officer in making a journey to his home does so for his o^vn pleasure or on private busi- ness, he is not entitled to mileage (citing Perri- mond V. U. S., 19 Ct. Cls., 509; Barker v. U. S., 19 Ct. Cls., 291); but where an officer is dis- charged from treatment in a hospital, after a serious illness, and ordered by the proper authorities to proceed to his home and upon his arriA'al there granted three months' sick leave for the purpose of allowing him to regain his health, the travel is on public business within the meaning of the law and he is entitled to ■ mileage for travel in the United States and actual expenses for travel out of the United States, in accordance with the act of March 3, 1901 (31 Stat., 1029). (McCauley v. U. S., 50 Ct. Cls., 105.) In Henderson's case, decided by the Comp- troller of the Treasury October 18, 1910 (noted in McCauley v. U. S., 50 Ct. Cls., 105, 112), it was said: "Whether a leave of absence is granted on account of sickness or for other cause, the officer's status is the same so far as the matter under consideration is concerned [mileage to his home]. While on 'sick leave' or 'ordinary leave' he is not on duty, nor is he subject to the orders of superior authority. His time is placed at his own disposal, as he may see fit, and he can go and come as he chooses." (But see McCauley v. U. S., noted above.) The acts of March 3, 1835 (4 Stat., 755), June 16, 1874 (18 Stat., 72), and June 30, 1876 (19 Stat., 65), pro\ide that naval officers shall be allowed mileage "for traveling expenses when under orders." Where an officer at his home on leave of absence is ordered to a new station for special service, and then back to his home before the expiration of hia leave, it is travel "when under orders" within the intent of the law and he is entitled to mileage therefor. (Fitzpatrick v. U. S., 37 Ct. Cls., 332.) 54641°— 22- -54 843 Sec. 1566. PL 2. REVISED STATUTES. The Navy. It is a principle long recognized and estab- lislied tliat the expiration of a leave of absence finds the officer, in legal contemplation, at his post; i. e., the officer must actually or con- structively travel from and return to his post at his own expense, liut travel for special ser\'ice within the period of his leave of absence, under orders which leave the oflicer no dis- cretion as to route, and require him to return to his home, does not come within the reason- able application of the principle. (Fitzpatrick t;. U. S.,37Ct. Cls.,332.) The ruling of the accounting officers that where an officer absent on leave is ordered to a new station he is entitled to mileage from the place where he happens to be to the new station, "provided the distance is not greater than that fi"om the old station to the new station, " but, conversely, if it be greater that he is entitled to mileage only from the old station to the new station, is one which in legal effect prescribes two rules of law where Congress has enacted one, viz, that naval officers shall be allowed mileage "for traveling expenses when under orders" within the United States. The appli- cation of the statute must be uniform in all cases. (Fitzpatrick v. U. S., 37 Ct. Cls., 332.) An officer ordered at the expiration of his leave of absence, to a new station for temporary service, is entitled to mileage from his home to the station ; but he is not entitled to mileage for travel fi-om the station to his regiment, if the distance be less than fi-om his home there. (Foster v. U. S., 43 Ct. Cls., 170.) WTiere an officer was detached fi'om his ship and granted leave of absence, without any di- rection for any further duty, the expiration of his leave left him at his home until further orders might be received; it was not his duty to return to the ship or station from which he had been detached. Orders sent him at his home, directing him upon expiration of his leave to proceed to the vessel and station from which he had been detached, for duty on such vessel, entitled him to mileage for travel per- formed thereon, notwithstanding that he was thereby ordered back to the same station. (17 Comp. Dec, 252.) Officer traveling on vessel during trial trip. — An officer assisting the superintending naval constructor at the contractor's works was ordered to take passage on a vessel on her trial trip, and was put to no expense whatever in the performance of this duty. Hdd, that he is not entitled to mileage under the act of June 7, 1900 (31 Stat., 685). (Williams v. U. S., 47 Ct. Cls., 186.) The theory of the law in allowing mileage is to provide expenses necessarily incurred in the performance of travel (citing Smith v. U. S., 26 Ct. Cls., 568; Galm v. U. S., 39 Ct. Cls., 67); 8 cents per mile of travel under the statute is supposed to include very liberal expenses. In this case it does not appear that the officer was charged for any transportation, or for that matter anything else that was necessary for his comfort and convenience. (Williams v. U. S., 47 Ct. Cls., 186.) OflB.cer traveling home upon resigning from the Navy. — It has been the policy of the Government to restore an officer to his resi- dence before discharging him from its service; and a journey for that purpose, by authority of the Secretary of the Navy, is a matter of pul)lit; obligation "and on public business," within the meaning of the act of June 30, 1876 (19 Stat., 65). Where the manifest intent of an order is that a resignation shall take effect when the officer, traveling from a foreign station, arrives in the port of New York, that effect should be given it. (Allerdice v. U. S., 19 Ct. Cls., 511.) Officers exchanging stations at their own request. — An Army regulation, pro^^ding that "when officers are permitted to exchange stations, or are transferred at their own request from one regiment or company to another, the public will not be put to the expense of their transportation. They must bear it them- selves," is just and reasonable. If A, at one station, and B, at another, desire to exchange stations or re.giments or companies with each other, and prefer a request to that effect, the regulation assumes that the commanding officer may in his discretion grant it; but as no public interest is advanced by it, and it is consented to for the advantage or pleasure of the two offi- cers, they must bear their own expense of trans- portation in making the exchange. (U. S. v. Phisterer, 94 U. S., 219, 221.) It would be too narrow a construction of the regulation to hold that it required that two offi- cers should be concerned in the exchange. An exchange from one station to another sta- tion by the same officer, at his own request, if found compatible with the public service, would be within the words of the regulation and apparently as much within its spirit as when the exchange was made by and between two officers. (U. S. v. Phisterer, 94 U. S., 219.) Said regulation, however, does not apply to the case of an officer who, at his own request, is ordered to his home to await orders ; his home is not a "station" and therefore there is no ex- change of stations within the meaning of the regulation. (U.S. v. Phisterer, 94 U. S., 219.) See Kozlowski v. United States (54 Ct. Cls., 206), decided January 13, 1919, without an opinion, in which judgment was rendered against the United States for mileage in favor of a paymaster's clerk in the Navy who was permitted to exchange stations with another paymaster's clerk. (See also file 26266-664.) •Officer traveling by permission. — Under the act of June 30, 1876(19 Stat., 159), an officer was entitled to mileage if the cause of his travel was ' ' public business. ' ' When the commander of a squadron on the high seas decides that there are no habitable quarters for certain warrant officers on the ship, and that he has no alterna- tive save that of detaching them "with permis- sion" to return home, he not feeling at liberty "to order" them home, because their quarters had been assigned by the department, the cause of the travel was public business. Re- quest on the part of the inferior and permission on the part of the superior officer do not neces- sarily change public business into private busi- ness. (Barker v. U. S., 19 Ct. Cls., 288.) See also Katzer v. United States (52 Ct. Cls., 32), noted below. Officer can not be deprived of mileage allowed by law. — An officer, prior to appoint- ment as paymaster's clerk in the Navy, was 8M The Navy. PL 2. REVISED STATUTES. Sec. 1566. "authorized," by telegram from the Secretary of the Navy, to report at Mare Island, Calif., for necessary physical examination; and "if qualified, authorized proceed at own expense to Newport, R. I., and report Minnesota as paymaster's clerk." On the same date the Secretary addressed a letter to the candidate, authorizing him to report to the commandant, navy yard, Mare Island, for examination, and stating that, if found qualified, "you will exe- cute the inclosed acceptance, oath of office, and beneficiary slip, and will proceed at your own expense to Newport, R. I., reporting to the commanding officer of the Minnesota for the above-mentioned duty"; and directing him to forward a true copy "of this order" to the Bu- reau of Na\'igation. The candidate was fbund qualified, and excuted the oath and acceptance at Mare Island, Calif.; and then performed travel to Newport and reported for duty on the Minnesota. Held, that he became a paymas- ter's clerk in the Navy at Mare Island, upon executing the oath of office, and that the travel performed by him to Newport was travel "under orders." Further held, that the right of an officer of the Navy, including a paj-master's clerk (in 1913), to the emoluments and allow- ances pertaining to his office and prescribed by statute is fixed, and the appointing power can not attach conditions to the appointment which have the effect of depri\dng the officer of what the law authorizes him to receiA'e. The Secre- tary would have no more right to require the officer to waive his statutory travel pay than he would have had to require a waiver of part of his salary as a condition precedent to his ac- ceptance or enjovment of his office. (Katzer v.U. S., 52 Ct. Cls., 32, citing Glavey r. U. S., 182 U. S., 595, and Andrews v. U. S., 240 IT. S., 90. See also Comp. Dec, Mar. 10, 1917, appeal No. 26679, in case of Chief Pay Clerk T. M. Schnotala, and 23 Comp. Dec, 420, 421; com- pare Hunt V. U. S., 38 Ct. Cls., 135; 5 Comp. Dec, 514; and 9 Comp. Dec, 5, noted under sec. 1422, R. S., "Transportation may be waived.") In the Katzer case, above noted, it was fur- ther held that the Secretary's direction to the officer to proceed at his own expense did not necessarily mean that his acceptance of the office would be upon the condition that the Government would not be expected or required to bear his mileage; that under section 1566, Re\dsed Statutes, as amended, an officer must travel at his own expense to be entitled to the statutory allowance of mileage when traveling from point to point within the United States; that in charging the officer to travel to Newport at his own expense the Secretary did what the law required as a condition to receiving any travel allowance, and it is more reasonable to ascribe that purpose to the Secretary's order than it is to adopt the \dew that the Secretary's direction constituted an illegal condition. Travel must be performed under or- ders. — There is no act of Congress or Na\y regulation authorizing the payment of traveling expenses of an officer while traveling in the interests of the serAdce unless by order of an officer having the authority to make such order. (Gove V. U. S., 49 Ct. Cls., 251.) Travel required by oflicer's delin- quency. — A boatswain in the Navy was absent from his vessel when she sailed; he was ordered by the commander of the fleet to take passage on a steamer at his own expense and rejoin his ship ; he claimed mileage for such travel. Held, that claim must be denied. Mileage is a form of reimbursement, and "public business" is the foundation on which it rests. If private de- linquency and not public business was the cause of the travel, the officer disbursed nothing for the Government. In such case the com- manding officer could not make the Govern- ment liable for mileage by ordering the officer to rejoin his ship. (Perrimond v. U. S., 19 Ct. Cls., 509.) The right of an officer to mileage depends upon his haA-ing traveled upon public business. Ordinarly it is for his commanding officer to determine whether public business required it. If he be delinquent and ordered to travel at his own expense, he can not recover mileage. (Hannum v. U. S., 19 Ct. Cls., 516.) Wording of order not controlling as to character of travel. — The question being pre- sented whether travel performed by an officer of the Navy, under orders, was on public busi- ness, held, that the rule is well settled that the terms of an order given for any pinpose can not determine the character of the travel or the ser\dce performed, but that the question must be determined from the particular facts in each case. (McCauley v. U. S., 52 Ct. Cls., 105, citing Curry v. U. S., 47 Ct. Cls., 393, 398; McGovern v. U. S., 36 Ct. Cls., 63; Leach v. U. S., 44 Ct. Cls., 132; and Dovle v. U. S., 46 Ct. Cls., 181.) Mileage allowed for shortest usually traveled route. — ^An officer is ordinarily bound to travel by the shortest usually traveled route, but not by an extraordinary and unusual route because it is the shortest. (Hannum v. U. S., 19 Ct. Cls., 516.) Mileage should not be computed by tracing a direct route upon a chart, but by ascertaining the distance of the shortest route of ordinary travel. (DuBose v. U. S., 19 Ct. Cls., 514.) If public business was an element in an officer's circuity of route, he should recover mileage therefor, under the act of June 30, 1876 (19 Stat., 65); if it was not, the Government is not answerable for the needless distance. (DuBose V. U. S., 19 Ct. Cls., 514.) An order requiring an officer to leave for his station before a designated date does not author- ize him to travel by a circuitous route if other means o ffer prior to the appointed date . (Crosby i;. U. S., 22 Ct. Cls., 131.) By the Re^vised Statutes, section 1566, as modified by the act of June 30, 1876 (19 Stat., 65), mileage is allowed to naval officers. When the choice of the route is left to the discretion of the officer, his mileage should be calculated by the shortest usually traveled route, regard- less of the distance actually traveled, unless some good reason be shown for the deviation. fCrosby v. U. S., 22 Ct. Cls., 131.) Travel performed not in conforrmty with orders. — When an officer does not travel by the most direct route, or being ordered to travel by one, is compelled to travel by another. 845 Sec. 1567. Pt. 2. REVISED STATUTES. The Navy. he must bring to the a'^counting oflicers the authority or ratification of the Navy Depart- ment; neglecting to do so, he must establish his rights judiciallv. fHannum v. U. S., 19 Ct. Cls., 516.) An officer at a foreign station receives an order stating that his resignation is accepted to take effect on his "arrival in the United States," and directing him to proceed to New York and report by letter the dale of his arrival. The officer travels by another route, entering the United States at San Francisco; he reports the reasons for so doing, and the Secretary ap- proves his action and orders that his resignation take effect the date of his arrival in New York. Held, that where a naval officer satisfies the Secretary of the Na^^ that the route traveled by him was proper, admitting the circum- sfances, ratification was as effective as ante- cedent authority. (Allerdice v. U. S., 19 Ct. Cls., 511.) Permission given by an admiral on a foreign station to an officer to return home by a mer- chantman at his own cost, instead of by a ship of war as directed by the Navy Department does not constitute the travel as upon public business. (Pendleton v. U. S., 21 Ct. Cls., 5.) Where a naval officer did not travel home in the manner directed by the department, and his action has not been ratified or approved, an informal permission by his immediate com- manding officer to return in another manner does not alter the legal situation of his claim for mileage. (Pendleton v. U. S., 21 Ct. Cls., 5.) Where a naval officer under orders to return home on a ship of war technically disobeys by returning on a merchantman, he can not receive mileage, though the exercise of his discretion in consequence of the changed position of the ship of war may have been a wise one. (Pen- dleton v. U. S., 21 Ct. Cls., 5.) Effect of change in la-w while travel being performed. — The claim of a naval officer for his expenses when traveling under orders rests, not upon contract with the Govern- ment, but upon acts of Congress; and when part of such a journey is performed when one statute is in force, and the remainder after another statute takes effect, providing a different rate of compensation, the compensation for each part of the journey is to be at the rate provided by the statute in force when the traveling was done. U. S. v. McDonald, 128 U. S., 471.) Who are "officers" within raeaning of mileage laws.^ — ^See note above, under act of 1S74 repealed only in part by act of 1876." A paymaster's clerk appointed by a paymaster in the Navy, although his appointment is in- dorsed with the approval of the Secretary of the Navy, is not an officer of the Navy within the meaning of the statute of June 30, 1876, because there is no statute authorizing the Secretary of the Navy to appoint a paymaster's clerk or requiring his approval of such an appointment ; and the regulations of the Navy in force at the time did not require any such appointment or approval for the holding of the position. There- fore a paymaster's clerk was not an officer, either appointed by the President or under the authority of any law vesting such appointment in the head of a department; and was not enti- tled to allowance for mileage under the act of 1876, notwithstanding that'the word "officer" might be construed in a more popular sense as embracing such clerk in other connections. (U. S. V. Mouat, 124 U. S., 303; see also note to sec. 1386, R. S.) A paymaster's clerk (prior to the act of Mar. 3, 1915, noted under sec. 1386, R. S.), was not an "officer of the Navy" entitled to mileage within the meaning of the act of March 3, 1901 (31 Stat. , 1029). A regulation of the Navy De- partment vesting the appointment of such clerks in the Secretaryof the Navy was not sufficient to change their status so as to bring them within the terms of said act. Such regu- lation was not a law of Congress within the meaning of the Constitution relating to appoint- ment of officers, and heads of departments can not confer upon themselves authority to ap- point officers of the United States by mere regu- lations. (Ashton V. U. S., 51 Ct. Cls., 65; dis- tinguishing Katzer ■?;. U. S., 49 Ct. Cls., 294.) Under the act of June 24, 1910 (36 Stat., 606), a paymaster's clerk, "while holding appoint- ment in accordance with law, " was given the same pay and allowances as warrant officers of like length of service in the Navy, Under this act it is not necessary to determine whether a paymaster's clerk was an officer of the Navy ■within the meaning of the mileage law of March 3, 1901, as said act of 1910 prescribes what the pay and allowances or emolimients of paymaster's clerks shall be. If an act provided that clerks in the office of the Auditor for the War Department should receive the same pay and allowances as warrant officers in the Navy, it would not be necessary to inquire whether the clerks were officers of the Navy, any more than it would be supposed that because the Navy personnel act of March 3, 1899, assimi- lated the pay of officers in the Navy to that of officers of con-esponding rank in the Army they had to become officers of the Army. It fol- lows that, under the act of 1910, paymasters' clerks became entitled to mileage as allowed warrant officers by the act of March 3, 1901. (Katzer v. U. S., 52 Ct. Cls., 32.) A mate in the Navy is not an officer of the United States within the meaning of the decis- ion of the Supreme Court in the case of Mouat v. United States (124 U. S., 303, 307), and is not entitled to mileage. Money paid such mate for mileage was received by him in violation of law and may be recovered by the United States on a counterclaim. (Baxter v. U. S., 32 Ct. Cls., 75; see also note to sec. 1408, R. S.) Sec. 1567. [Officers serving as store-keepers on foreign stations.] — Officers who are ordered to take charge of naval stores for foreign squadrons, in the place of naval store-keepers, shall be entitled to receive, while so employed, the shore-duty pay of their grades; and when the same is less than fifteen hundred dollars a year, they may be allowed compensation, including such shore-duty 846 The Navy. PL 2. REVISED STATUTES. Sec. 1569. pay, at a rate not exceeding fifteen hundred doDars a year. — (17 June, 1844, c. 107, s. 1, V. 5, pp. 700, 701. See sections 1413 and 1438, Revised Statutes. Sec. 1668. [Civilians, store-keepers on foreign stations.] — Civilians ap- pointed as store-keepers on foreign stations shall receive compensation for such services, at a rate not exceeding fifteen hundred dollars a year. — (17 June, 1844, c. 107, s. 1, V. 5, pp. 700, 701. 3 Mar., 1847, c. 48, s. 3, v. 9, pp. 172, 173.) See sections 1414 and 1438, Revised Statutes. Sec. 1569. [Pay of enlisted men. Superseded.] This section provided as follows: "Sec. 1569. Tlje pay to be allowed to petty officers, excepting mates, and the pay and bounty upon enlistment of seamen, ordinary seamen, fire- men, and coal-heavers, in the naval service, shall be fixed by the President: Provided, That the whole sum to be given for the whole pay aforesaid, and for the pay of officers, and for the said bounties upon enlistments shall not exceed, for any one year, the amount which mav, in such year, be appropriated for such pui-poses."— (18 Apr., 1814, c. 84, s. l,v. 3, p. 136. 3 Mar., 1847, c. 48, s. 4, v. 9, p. 173. 1 July, 1864, c. 201, s. 4, v. 13, p. 342. 3 Mar., 1865, c. 124, 8. 2, V. 13, p. 539.) It was amended by act of March 3, 1899, section 16 (30 Stat., 1008), quoted under section 1573, Re\T.sed Statutes, fixing increased pay of enlisted men for continuous service in the Na\'y. See decisions noted under section 1573 relating to continuous-service pay, and honorable- discharge gratuity. It was superseded by the following pro- Aisions of the naval appropriation act. May 13, 1908 (35 Stat., 128): "The pay of all active and retired enlisted men of the Navy is hereby increased ten per centum: * * * all pay herein provided shall remain in force until changed by act of Congress. Nothing herein shall be construed so as to reduce the pay or allowances now au- thorized by law for any * -x- * enlisted man of the active or retired lists of the Na\'y, and all laws inconsistent with this pro\'ision are hereby repealed." Other changes were made by the follow- ing statutes: Hospital Corps. — "* * * the Hospital Coi-ps of the United States Na^y shall consist of the following grades and ratings: * * * en- listed men classified as chief pharmacists' mates pharmacists' mates, first class; pharmacists' mates, second class; pharmacists' mates, third class; hospital apprentices, first class; and hospital apprentices, second class; such clas- sifications in enlisted ratings to correspond re- spectively to the enlisted ratings, seamen branch, of chief petty officers; petty officers, first class; petty officers, second class; petty officers, third class; seamen, first class; and seamen, second class." (Act Aug. 29, 1916, 39 Stat., 572, superseding prior laws relating to the Hospital Corps.) "* * * the pay, allowances, and emolu- ments of the enlisted men of the Hospital Corps shall be the same as are now, or may hereafter be, allowed for respective corresponding ratings, except the rating of turret captain of the first class in the seaman branch of the Navy: Pro- vided, That the pay of the rating of the chief pharmacist's mate shall be the same as that now allowed for the existing rating of hospital steward." (Act Aug. 29, 1916, 39 Stat., 573.) It had pre^•iously been pro\'ided by act of May 13, 1908 (35 Stat., 146), that "the pay of enlisted men of the Hospital Corps shall be the same as that pro\-ided for the correspond- ing ratings of the seaman branch and other staff corps of the Na^y"; and by act of June 17, 1898 (30 Stat., 474, 475), that "the pay of hos- pital stewards shall be sixty dollars a month, the pay of hospital apprentices (first class) thirty dollars a month, and the pay of hospital apprentices twenty dollars a month, with the increase on account of length of ser%ice as is now or may hereafter be allowed by law to other enlisted men in the Na^"v^" The effect of the act 6i May 13, 1908, was to allow enlisted men of the Hospital Corps the same rates of pay as allowed other enlisted naen of corresponding ratings under Executive orders issued pursuant to section 1569, Re\d8ed Statutes; but this did not entitle hospital stewards to the pay of the rating of chief petty officer from the date of said act, but only from the date that such rating was conferred upon him. (17Comp. Dec, 452. By a clause in the naval appropriation act of August 22, 1912, the Auditor for the Navy Department was directed to allow payments which had been made to hospital stewards who were granted permanent appointments as of May 13, 1908, and which payments had been disallowed pursuant to the comptroller's decision last cited.) Ratings changed. — "That the designation of the ratings of coal passer be changed to fireman, third class, and that of ordinary seaman to seaman, second class, without change of pay; and that the Bureau of Na\igation be authorized under rules established for the ad- vancement of other enlisted men, to advance printers to the ratings of printer, first class, and chief printer, which ratings are hereby au- thorized with same pay and increases allowed to yeomen, first class, and chief yeomen, re- spectively: And provided further, That the rating of storekeeper is hereby established in the artificer branch with the f"ollo\ving rates of pay per month: Chief petty officer, $50; petty officer, first class, $40; petty officer, second class, S35: petty officer, third class, §30, subject to such increases of pay and allowances as are 847 Sec. 1569. Pt. 2. REVISED STATUTES. The Navy. or may hereafter be authorized by law for the enlisted men of the Navy." (Act Aug. 29, 19 K), 39 Stat., 575.) Naval Filling Corps — "The enlisted person- nel of the Naval Flj-ing Corps ahall be dis- tributed by the Secretary of the Na\'y in the various ratinjjs as now ol)tain in the Navy in so far as suoli ratings are applicable to duties con- nected with aircraft." (Act Aug. 29, 1916, 39 Stat., 585, 586.) " * * * the enlisted men of the Naval Fljdng Corps shall receive the same pay and allowances that are now pro\'ided by law for * * * enlisted men of the same grade or rank and rating in the Navy and Marine Corps detailed to duty with aircraft invoh-ing actual flying." (Act Aug. 29, 1916, 39 Stat., 583.) ((■ * * * enlisted men, while detailed as student a\dators and student airmen in- vohdng actually flying in aircraft, shall re- ceive the same pay and allowances that are now proAaded by law for * * * enlisted men of the same grade or rank and rating in the NaA-y detailed for dutv with aircraft." (Act Aug. 29, 1916, 39 Stat., 584.) "Hereafter enlisted men of the Navy or Marine Corps, while detailed for duty in- voh-ing actual flying in aircraft, shall receive the pay, and the permanent additions thereto, including allowances, of their rating and ser\ice, or rank and serAdce, as the case may be, plus fifty per centum increase thereof." (Art Mar. 3", 1915, 38 Stat., 939.) By act of July 1, 1918 (40 Stat., 718), it was provided that the "allowances" of "enlisted men * * * of the naval service shall in no case be increased by reason of the per- formance of aviation duty." See note to section 1556, Revised Statutes, under "Additional pay for special duty — A\dation duty." Naval Academy Band. — "The Naval Acad- emy Band shall hereafter consist of one leader, with pay and allowanotes of first lieu- tenant in the Marine Corps; one second leader, with a base pay of $81 per month; forty-five musicians, first class, \\dth a l)ase pay of $51 per month; twenty-seven musicians, second class, with a base pay of $44 per month; one drum major, with a base pay of $57.20 per month; and the said leader of the band, second leader of the band, drum major of the band, and the enlisted musicians of the band shall be entitled to the same benefits in respect to pay, emoluments, and retirement arising from_ longe\aty, reenlistment, and length of service as are or may hereafter become ap- plicable to other officers or enlisted men of the Navy." (Act July 11, 1919, 41 Stat., 152; modifying act of April 12, 1910, 36 Stat., 297.) Under the act of April 12, 1910 (36 Stat., 297), i^roviding for the enlistment of the Naval Academy bandsmen and giving them "the sanie benefits in respect to pay, emoluments, and retirement arising from longe\ity, re- enlistment, and length of serWce as are or may hereafter become applicable to other enlisted men of the Navy," such bandsmen upon en- listment are entitled to be credited with all services as members of said band in comput- ing continuous-service pay, such corr uta- tion to be made as if actually enlisted and discharged as provided by law in effect when such ser\dce was rendered; and if citizens of the United States they are entitled to the additional pav j>rovided l)v General Order No. 34 of November 28, 1906 (art. 1134, par. 7, Navy Regs., 1909), and to ten per cent increase on all permanent pay as provided by the act of May 13, 1908 (35 "Stat., 128). (17 Comp. Dec, 27.) New rating.^ established. — "The ratings of engineman, first class, engineman, serond class; blacksmith, first class, blacksmith, second class; coppersmith, first class, copper- smith, second class; pattern maker, first class, pattern maker, second class; molder, first class, molder, second class; chief special mechanic and special mechanic, fir^ class, be, and they are hereby, established in the artificer branch of the Navy with the follow- ing rates of base pay per month: Engineman, first class, $45; engineman, second class, $40; blacksmith, first class, $65; blacksmith, second class, $50; coppersmith, first class, $65; cop- persmith, second class, $50; pattern maker, first class, $65; pattern maker, second class, $50; molder, first class, $65; molder, second class, $50; chief special mechanic, $127; spe- cial mechanic, first class, $80: Provided, That the base pay of machinists' mates, second class, and water tenders be, and it is hereby, increased from $40 to $45 per month: Provided further, That all the aforesaid rates of pay shall be subject to such increases of pay and allowances as are, or may hereafter be, au- thorized by law for enlisted men of the Navy: And provided further. That appointments or enlistments in the said ratings may be made from enlisted men in the Navy or from civil life, respectively, and the qualifications of candidates for any of said ratings shall be determined in accordance with such regula- tions as the Secretary of the Navv may pre- scribe." (Act Oct. 6, 1917, 40 Stat., 397.) Grades and ratings to be established by Sec- retary. — "That hereafter the Secretary of the Navy is authorized, in his discretion, to es- tablish such grades and ratings as may be necessary for the proper administration of the enlisted personnel of the Navy and ]\larine Corps." (Act June 4, 1920, 41 Stat., 836.) Increases in pay during war. — "That com- mencing June first, nineteen hundred and seventeen, and continuing until not later than six months after the termination of the present war, all enlisted men of the Navy of the United States in active service whose base pay does not exceed $21 per month shall receive an increase of $15 per month; those whose base pay is oA'er $21 and does not exceed $24 per month, an increase of $12 per month; those whose base pay is over $24 and less than $45 per month, an increase of $8 per month; and those whose base pay is $45 or more per month, an increase of $6 per month: Provided, That the increases of pay herein authorized shall not enter into the computation of con- tinuous-serA-ice pay." (Act May 22, 1917, sec. 15, 40 Stat., 87.) "Base pay," as that term is used in the act of May 22, 1917 (40 Stat., 87), relative to increase in pay of enlisted men during the 848 The Navy. Pt. 2. REVISED STATUTES. Sec. 1569. present war, is the fixed monthly sum to which such enlisted men are respectively entitled, stripped of all increases or additions thereto by percentages or otherwise, and accordingly does not include the ten per cent increase pro\'ided in the act of May 13, 1908 (35 Stat., 128). (23 Comp. Dec, 677.) War time increases temporarily continued. — "The rates of pay prescribed in section 15 of an act * * * approved ]\Iay 22, 1917, are hereby made the permanent rates of pay of the enlisted men of the Navy during their present current enlistment and for those who enlist or reenlist prior to July 1, 1920, for the term of such enlistment or reenlistment. " (Act July 11, 1919, 41 Stat., 140.) The 10 per cent increase provided by the act of May 13, 1908 (35 Stat., 128), for enlisted men of the Navy, does not attach' to the in- crease provided in section 15 of the act of May 22, 1917 (40 Stat., 87), which the act of July 11, 1919 (41 Stat., 140), makes a part of the permanentpay of arating. (26 Comp. Dec, 143.) Temporary increases of 1920. — By act of May 18, 1920, section 6 (41 Stat., 602), it was pro- vided that "commencing January 1, 1920, the follo\ving shall be the rate of base pay for each enlisted rating: Chief petty officers mth acting appointments, $99 per month; cliief petty offi- cers with permanent appointments and mates, $126 per month; petty officers, first class, $84 per month ; petty officers, second class, $72 per month; petty officers, tliird class, $60 per month; nonrated men, first class, $54 per month; nonrated men, second class, $48 per month; nonrated men, tliird class, $33 per month: Pro- vided, That the base pay of firemen, first class, shall be $60 per month; firemen, second class, $54 per month; firemen, third class, $48 per month: Provided further. That the rate of base pay for each rating in the Naval Academy Band shall be as follows: Second leader, with acting appointment, $99 per month with permanent appointment, $126 per month; drum major, $84 per month; musicians, first class, $72 per month; musicians, second class, $60 per month: Provided further, That the base pay of cabin stewards and cabin cooks shall be $84 per month; wardroom stewards and wardroom cooks, $72 per month; steerage stewards and steerage cooks, $72 per month; warrant officers' stewards and warrant officers' cooks, $60 per month; mess attendants, first class, $42 per month; mess attendants, second class, $36 per month; mess attendants, third class, $33 per month: * * * Provided further, That the rates of base pay herein fixed shall not be further increased 10 per centum as authorized by an act approved May 13, 1908, nor by the temporary war increases as authorized by sec- tion 15 of the act approved May 22, 1917, as amended by the act approved July 11, 1919." By section 13 of the same act (41 Stat., 604), it was provided that the rates of bases pay therein established for enlisted men "shall remain effective until the close of the fiscal year ending June 30, 1922, unless sooner amended or re- pealed," and that said rates of pay "shall be the rates of pay during the current enlistment of all men in active service on the date of the approval of this act, and for those who enlist, reenlist, or extend their enlistments prior to July 1, 1922, for the term of such enlistment, reenlistment, or extended enlistment." It was fiirther provided therein "that the increases provided in this act shall not enter into the computation of the retired pay of * * * enlisted men who may be retired prior to July 1, 1922." By section 14 of the same act (41 Stat., 604), it was provided "that nothing contained in this act shall operate to reduce the pay or allowances of any * * * enlisted man on the active or retired list: Provided, That the allowances and gi-atuities now authorized by existing law are not changed hereby, except as otherwise specified in this act." 1. Historical note. 2. Compilation of orders issued under sec- tion 1569. 3. Act of May 13, 1908, construed. 4. Civilians shipped on naval vessels. 5. Insular force. 6. Mates. 7. Mess attendants and cooks. 8. Additional pay for special duty, etc. 9. Longevity pay, General Order No. 34. 10. Changes in rating. 11. Commencement of pay. 12. Leave of absence. 13. Forfeiture of pay. 1. Historical note. — "Section 7 of the act of March 27, 1794, first authorized the President to fix tha pay which should be allowed to petty officers, ordinary seamen, seamen, and marines. The act of July 1, 1797, contains the same authorization. The act of April 18, 1814, pro- vides that the pay and bounty upon enlistment of seamen, ordinary seamen, and marines shall 14. Men transferred to Fleet Naval Reserve. 15. Men furloughed without pay. 16. Men extending enlistments. 17. Retired enlisted men. 18 . Men detained after expiration of enlistment. 19. Fraudulent enlistment. 20. Mileage and transportation on discharge. 21. Clothing bounty on enlistment. 22. Deposit of savings. 23. Waiver of pay or allowances. 24. Sixty dollar bonus on discharge. 25. Attachment of pay by creditors. 26. Allotments of pay. be fixed by the President of the United States. The act of March 3, 1847, pro\ades that the pay of firemen and coal heavers employed in the naval service shall hereafter be fixed by the President in the same manner as is now pro- vided by law for the pay of other petty officers, seamen." ordinary seamen, and marines." (24 Comp. Dec, 364, 367; hearings before the Com- 849 Sec. 1569. Pt. 2. REVISED STATUTES. The Navy. mittee on Naval Affairs, TTouse of Representa- tives, appropriation bill subjects, 1909, 60th Cong., 1st sess.. No. 97, p. 907.) 2. Compilation of orders issued under section 1569.— Prior to May 13, 1908, the pay of enlisted men of the Navy was provided for under section 15(59, Revised Statutes. The fol- lowing is a compilation of orders issued pur- suant to said section, from November 7, 1883, to February 7, 1908, fixing the pay of enlisted men of the United States Navy: General Order 1 No. 310 / November 7, 1883. The following Executive order is published for the information and guidance of all con- cerned. Edward T. Nichols, Acting Secretary of the Navy. Executive Mansion, Washington, D. C, November 5, 1883. The pay of the petty officers and enlisted men of the United States Navy on and after the 1st of January, 1884, will be as follows: Rating. Seamen gunners Chief boatswains' mates Boatswains' mates Chief gunners' mates Gunners' mates Chief quartermaster Quartermasters Cockswains Captains of forecastle Captains of tops Captains of afterguard Quarter gunners Carpenters' mates [see G. O. 311]. Sailiaakers' mates Machinists, first-class MachLoists, second class Machinists, third class Blacksmiths Armorers Captains of hold Ship's cooks Ship's corporals Ship's lamplighters Jack-of-the^iust Carpenter and calkers Baymen Seamen Ordinary seamen Landsmen Bovs. Ordinary seamen, second class (apprentices) . Apprentices, first class Apprentices, second class Apprentices, third class Firemen, first class Firemen, second class Coal heavers Apothecaries Yeomen, paymasters' Yeomen, eqiiipment Yeomen, engineers' Master-at-arms Schoolmasters \,\\ Ship's wTiters Ship's printers Ship's tailors Ship's barbers Painters Cabin stewards Cabin cooks Wardroom stewards Wardroom cooks [see G. 0. 311] Steerage stewards Steerage cooks Warrant officers' steward Monthly pay. S34.00 35.00 30.00 35.00 30.00 35.00 30.00 30.00 30.00 30.00 27.00 27.00 40.90 40.00 70.00 60.00 50.00 60.00 45.00 30.00 35.00 28.00 25.00 22.00 25.00 18.00 24.00 19.00 16.00 10.00 15.00 11.00 10.00 9.00 35.00 30.00 22.00 60.00 60.00 60.00 60.00 65.00 45.00 45.00 40.00 30.00 30.00 30.00 37.00 32.00 37.00 37.00 25.00 22.00 24. a) Warrant officers' cooks Steward to commanders in chief Cooks to commanders in chief Cockswains to commanders in chief Steward to commandants, navy yards Cooks to commandants, navy yards Cockswains to commandants, navy yards Masters of bands Musicians, first class Musicians, second class Buglers Electricians $20.00 45.00 40.00 35.00 45.00 40.00 35.00 52.00 32.00 30.00 33.00 50.00 Chester A. Arthur. General OrderI No. 311. / November 15, 1883. The following corrections of typograpliical errors in the Executive order of November 5, 1883, promulgated in General Order No. 310, of November 7, 1883, are hereby made, viz: The pay of caqjenters' mates will read §40 instead of $40.90, and the pay of wardroom cooks wiU read $32 instead of $37. Edward T. Nichols, Acting Secretary of the Navy. November 24, 1883. General OrderI No. 312. / On and after January 1, 1884, General Order No. 208, of April 1, 1876, will be superseded, and the pay of the crews of receiving ships will be regulated by General Order No. 310, of the Navy Department, dated November 7, 1883. Wm. E. Chandler, Secretary of the Navy. November 24, 1883. General Order! No. 313, / The rates of finisher, boiler maker, engi- neer's blacksmith, armorer's mate, cooper, ship's baker, and second-class painter being abolished by Executive order dated Novem- ber 5, 1883, and promulgated in General Order No. 310, of the Navy Department, dated November 7, 1883, men holding those ratings in the service on December 31, 1883, will be disposed of as follows, viz: Finishers serving on seagoing or other vessels to be rated first- class machinists; those available on recei\-ing ships and in hospital to be rated second-class macliinists. Boiler makers serving on sea- going or other vessels to be rated second-class machinists; those available on receiving ships and in hospitals to be rated third-class ma- cliinists. Engineer's blacksmiths and ship's blacksmiths serving on seagoing or other vessels to stand a competitive examination as to their qualifications to perform general blacksmithing work, and those found most capable to be retained as blacksmiths; all others to be discharged from the ser^dce, giving such as are entitled thereto the same benefits they would receive had they served out the full term of enlistment. Armorer's mates, coopers, ship's bakers, and second- class painters to be disrated to landsmen, 850 The Navy. PL 2. REVISED STATUTES. Sec. 1569. or discharged from the service should they so elect. The rates of seamen, E, F., and ordinary seamen, E. F., are also abolished, and on and after January 1, 1884, men for the engineer's force will be enlisted as first and second class firemen and coal heavers. Seamen, E. F., and ordinary seamen, E. F., in the service on that date will be rated first and second class firemen, respectively. [See G. O. 319.] All men discharged by tliis order are to be sent to the United States by the first public opportunity, if ser\'ing abroad, imless they desire their discharge on the station. Wm. E. Chandler, Sea-etary of the Navy. January 4, 1884. General OrderI No. 315. / The rating of electrician, the pay of which was fixed by Executive order of November 5, 1883, promulgated in General Order No. 310, dated November 7, 1883, is hereby abol- ished. Wm. E. Chandler, Secretary of the Navy. Mat 19, 1884. General OrderI No. 319. J The closing sentence in paragi-aph 2 of Gen- eral Order No. 313, of November 24, 1883, should read as follows: Seamen, E. F.;_ ordinary sea- men, E. F.; and landsmen serving in the en- gineer's force, in the ser^dce on that date, will be rated first and second class firemen and coal heavers, respectively. Wm. E. Chandler, Secretary of the Navy. General Orderj November 21, 1884. From and after Januar>^ 1, 1885, the form of honorable discharge from the naval serA-ice, authorized by section 1427, ReA-ised Statutes of the United States, will be the "honorable- discharge and contin uous-servdce certificate." All men (except officers' cooks, stewards, and sen-ants enlisted for special ser\'ice) now ser\-- ing under enlistments for three years, or who may hereafter enlist for that period, shall re- ceive an "honorable-discharge and continuous- service certificate" at the expiration of their terms of enlistment, upon the recommendation of their commanding officers. Any man holding an "honorable-discharge and continuous-serA-ice certificate" who reen- lists for three years, mthin three months from the date of his last discharge, shall receive an increase of $1 per month to the pay prescribed for the rating in which he serv^es, for each con- secutive reenlistment, in addition to the "honorable-discharge money." Any man holding an "honorable-discharge and continuous-ser\'ice certificate" who fails to reenlist within three months from date of last discharge will derive no further advantages therefrom. The department directs that the records of conduct and professional qualifications on the "enlistment records" shall be a verification of the recommendations for "honorable-discharge and continuous-ser\'ice certificate," and here- after only those shall be recommended who obtain, during their terms of enlistment, a general average of 4. In order that commanding officers of vessels upon which men complete their terms of enlist- ment shall be informed as to the prcAdous merit of said men, the original "Enlistment record" (Form 12\ which accompanies an enlisted man upon his first transfer, ^vill thereafter be care- fully preserv'ed and accompany him upon all subsequent transfers, until his term of enlist- ment has been completed. This form has been amended so as to show the record of conduct as averaged by the commanding officer of the vessel for the period for which the man has served imder his command . The final averages will be made by the officer under whom the man is sen'ing at the time his enlistment expires when about to be discharged. These "enlist- ment records " must be forwarded to the Bureau of Equipment and Recruiting. In addition to the above requirements, en- listed men must serve at least two years and nine months of their terms in order to receive an "honorable-discharge and continuous-serv- ice certificate, " except in extraordinary cases, which will be pro^•ided for by the depaitment as they may occur. When any man holding an "honorable- discharge and continuous-service certificate'' shall fail to receive a recommendation for its renewal upon the expiration of Ms term of en- listment, the words "Not entitled to honoral)le discharge" shall be written on the line below the last entry. Men so discharged will receive no further pecuniary benefit from their "honor- able-discharge and" continuous-servdce certifi- cate, ' ' and entries of reenlistment or subsequent service must not be noted thereon. "Good-conduct badges" are special distinc- tions for fidelity, zeal, and obedience, and will not be granted" for the first term of enlistment under 'continuous service." At the expira- tion of subsequent reenlistments for three years, \vithin three months from date of discharge, men who hold "honorable-discharge and con- tinuous-service certificates," have obtained a general average of 4.5 on their condiict rec- ords, and are recommended by their com- manding officers, will be entitled to and receive said badges. The first badge will be a medal, as liitherto. Subsequent badges to be clasps, Avith the name of the vessel from which given engraved thereon, to be worn on ribbon above medal. WTien any enlisted man shall have re- ceived three such badges, under consecutive reenlistments as above, he shall be enUsted as a petty officer in the rating in which he is ba^t qualified to serve, and shall continue to hold a petty officer's rating during subsequent con- tinuous reenlistments, and shall not be reduced to a lower rating except by sentence of court- martial. Paragraphs 18 and 20, page 100, and para- graph 22, page 101, United States Navy Regu- lations, are hereby annulled. Wm. E. Chandler, Secretary of the Navy. 851 Sec. 1569. Pt. 2. REVISED STATUTES. The Navy. TJ. S. Navy Regulation 1 Circular No. 41. j January 8, 1885. The following classification of petty officers and enlisted men in the Navy and of noncom- missioned officers, musicians, and privates in the Marine Corps is herein' adopted. Wm. *E. Chandler, Secretary of the Navy. Classification. PETTY OFFICERS, FIRST CLASS. Seaman class. Chief boat- swains' mates. Chief quarter- masters. Chief gimners' mates. Special class. Master-at-arms. Equipment yeo- men. Apothecaries. Paymaster's yeo- men. Engineer's yeo- men. Ships' writers. Schoolmasters. Bandmasters. Artificer class. Machinists. Marines. Sergeants major. First ser- geants. PETTY OFFICERS, SECOND CLASS. Boatswains' Ships' corporals. Boilermak- Sergeants. mates. Ships' coolis. ers. Quartermas- Chiefmusicians. Armorers. ters. Carpenters' Gunners' mates. mates. Black- Coxswains to smiths. commander Sailmaker's in chief. mates. Water tend- ers. PETTY OFFICERS, THIRD CLASS. Captains of forecastle. Captains of maintop. Captains of foretop. Captains of mizzen top. Captains of after guard. Coxswains. Quarter gun- ners. Seamen gun- ners. Captains of hold. Printers. Painters. Oilers. Corporals. SEAMEN, FIRST CLASS. Seamen. Seamen, ap- • pren t ice, nrst class. LampUghters. Jaeks-of-the-dust Buglers. Musicians, first class. TaUors. Barbers. Firemen, : Musicians. first class. OrderUes. Carpenters. Calkers. SEAMEN, SECOND CLASS. Ordinary sea- men. Seamen, ap- pren tice , second class. Baymen. Musicians. Firemen, sec on d class. Privates. SEAMEN, THIRD CLASS. Seaman class. Special class. Artificer class. Marines. Landsmen. Coal heav- Apprentices, ers. first class. Apprentices, second class. Apprentice s. third class. Boys. Messmen, stewards, cooks, and attendants. General Order\ No. 330. / December 31, 1884. The following Executive order is published for the information and guidance of all con- cerned. Wm. E. Chandler, Secretary of the Navy. Executive Mansion, December 31, 1884. The Executive order of November 4, 1883, ia hereby modified as follows: The ratings of first, second, and third class machinists are abolished, and hereafter there will be no rating of machinist in the Navy, with the pay of $70 a month. New ratings are hereby establislied as follows: Rating. Monthly pay. BoUer maker Sfif) 00 Water tenders 38 00 Oilers 36 00 Chief musician 36 00 Chester A. Arthur. General Order 1 No. 341. / Navy Department, Washington, January 1, 1886. General Orders Nos. 272 and 281, relating to seamen gunners, are hereby modified as follows: Hereafter seamen gunners will not be classed with petty officers, but with seamen, first class, and all seamen who pass through the Ordnance School of Instruction at Newport and Washing- ton will be rated seamen gunners, upon the completion of the course, and can not be reduced to a lower rating except by sentence of a court- martial. The words "qualified as seamen gunner " will be written in red ink across the face of the con- tinuous-service certificate of each person cjuali- fied as above, and signed by the inspector of ordnance of the stations at Newport and Wash- ington when the course is completed, with the date of its completion. The same indorsement will be placed on the continuous-seridce certificate of any enlisted petty officer who may pass through the course. All petty officers of the line, armorers, ma- chinists and lamplighters employed in connec- tion with electrical plant will hereafter be se- lected exclusively from seamen gunners when available. 852 The Navy. PL 2. REVISED STATUTES. Sec. 1569. Men having qualified as seamen gunners can reenlist as such, even if not enlisted under con- tinuous-ser\ice certificate, on giving satisfac- tory eAddence that they have so qualified. The pay of seamen gunners hereafter will be $26 per month. William C. Whitney, Secretary of the Navy. Rating. General Order\ No. 346. / April 20, 1886. Hereafter enlisted men of the Navy not under instruction at Newport or Washington when employed in submarine dicing will receive extra compensation at the rate of $1 for each hour so employed under water. Breathing time and other time necessary out of water will not be deducted if not exceeding 15 minutes, or one-fifth of the whole time immersed. Such compensation is to be charged to the bureau for which the service is performed. Wm. C. Whitney, Secretary of the Navy. General Order"! No. 409. j Navy Department, Wasbington, February 25, 1893. The following Executive order is pulilished for the information and guidance of all persons concerned. B. F. Tracy, Secretary of the Navy. Executive Mansion, Washington, D. C, February 25, 1893. On and after the 1st day of April, 1893, the pay of the pettv ofiicers and other enlisted men of the Navy shall be as follows, but this order shall not reduce the pay or rating of any en- listed man during his present enlistment below the rate or pay at which he was enlisted or in which he is now serving, unless he shall be reduced in rating as provided by law or regula- tions: Rating. Chief masters-at-arms Chief boatswains' mates -. . . Chief gunners' mates Chief quartermasters Masters-at-arms, first class Boatswains' mates, first class Gunners' mates, first class Quartermasters, first class Schoolmasters Masters-at-arms, second class Boatswains' mates, second class. Gunners' mates, second class Quartermasters, second class Masters-at-arms, tliird class Coxswainsi Gunners' mates, third class Quartermasters, third class Seamen gunners Seamen 2 Apprentices, first class Ordinary seamen Apprentices, second class Landsmen^ Apprentices, third class Machinists Chief carpenters' mates Boiler makers Coppersmiths Monthly pay. $65.00 50.00 50.00 50.00 40.00 40.00 40.00 40.00 40.00 35.00 35.00 35. 00 35.00 30.00 30.00 30.00 30. 00 26.00 21.00 21.00 19.00 15.00 16.00 9.00 70.00 50.00 60.00 50.00 Blacksmiths Carpenters' mates, first class Plumbers and fitters Water tenders Sailmakers' mates Oilers Carpenters' mates, second class Printers Painters Carpenters' mates, third class Firemen, first class Firemen, second class Shipwrights Sailmakers Coal passers Bandmasters Yeomen Apothecaries Writers, first class First musicians Writers, second class Writers, third class Musicians, first class Musicians, second class Buglers Baymen Ships' cooks, first class Ships' cooks, second class Ships' cooks, third class Ships' cooks, fourth class Stewards to commanders in chief. . Stewards to commandants Cabin stewards Wardroom stewards Steerage stewards Warrant officers' stewards Cooks to commanders in chief Cooks to commandants Cabin cooks Wardroom cooks Steerage cooks Warrant officers' cooks Mess attendants Monthly pay. $.50. 00 40.00 45.00 38.00 40.00 36.00 35.00 35.00 30.00 30.00 35.00 30.00 25. 00 25.00 22.00 52.00 60.00 60.00 35.00 36.00 30.00 25.00 32.00 30.00 30. Ot) 18.00 35.00 30.00 2.5.00 20.00 45.00 45.00 37.00 37.00 25.00 24.00 40.00 40.00 32.00 32.00 22.00 20.00 16.00 1 Coxswains detailed as coxswains of steam launches or as coxswains to commanders in cliief shall receive So per month in addition to their pay. 2 Seamen in charge of holds shall receive $5 per month in addition to their pay. 3 Landsmen assigned to duty as jacks-of-the-dust or as lamplighters shall receive So per month in addition to their pay. Benj. Harrison. General Order"! No. 448. J Navy Department, Washington, D. C, June 17, 1895. The following Executive order is published for the information and guidance of all persons concerned. H. A. Herbert, Secretary. Executive Mansion, Washington, D. C, June 15, 1895. On and after July 1, 1895, the pay of ma- chinists, water tenders, oilers, and wTiters in the Navy shall be as follows, but this order shall not reduce the pay of any enlisted man during his present enlistment below the pay at which he was enlisted, or which he is now receiving: Per month. Chief machinists §70. 00 Machinists, first class 55. 00 Machinists, second class 40. 00 W^ater tenders 40. 00 Oilers 37.00 Writers, first class 40.00 Writers, second class 35. 00 Writers, third class. 30. 00 Grovee Cleveland. 853 Sec. 1569. PL 2. REVISED STATUTES. The Navy. General Order"! No. 467. / Navy Department, Washington, D. C, September 19, 1896. The follovrinn: Executive order is published for the information of all persons concerned. W. McAdoo, Acting Secretary. Executive Mansion, Washington, D. C, September 16, 1896. On and after October 1, 1896, the pay of yeomen in the Navy shall be as follows, but this order shall not reduce the pay of any en- listed men during his present enlistment l)elow tlie pay at which he was enlisted, or which he is now receiving: Per month. Chief yeomen $60. 00 Yeomen, first class 40. 00 Yeomen, second class -• 35. 00 Yeomen, third class 30. 00 Grover Cleveland. General OrderI No. 486. Navy Department, Washington, April 8, 1898. The following Executive order is published for the information and guidance of all persons concerned . John D. Long, Secretary. Executive Mansion, Washijigton, April 8, 1898. On and after this date, the pay of electricians in the Navy shall be as follows, but this order shall not reduce the pay of any enlisted man during his present enlistment below the pay at which he was enlisted, or which he is now receiving: Per month. Chief eleciricians $50. 00 Electricians, first class 40. 00 Electricians, second class 35. 00 William McKinley. General Order! No. 520. / Navy Department, Washington, June 30, 1899. The following instructions are issued gov- erning (1) qualifications for instruction and (2) the detail, (3) the classification and (4) the rating of gun captains, and (5) the award of gunnery prizes to men holding gun-cap- tain's certificates. 1. Qualification. — (a) Men who have at- tained special proficiency as marksmen with great guns or small arms, or whose superior intelligence fits them to acquire such pro- ficiency, and who, by force of character and ability to command, are suitable to fill the ratings of gun captains. (6) No person shall be detailed who is not a citizen of the United States. 2. Details for instruction vAW be made from the following: (a) Apprentices, first class, in the la.st year of their enlistments having not less than six months to serve, (ft) Seamen, (c) Men and apprentices holding either acting or permanent appointments as coxswains or quartermasters, third class. 3. Classification. — Upon the completion of the course of instruction on board the gunnery training ship, the percentage attained by each man shall be reported to the Bureau of Navigation, which will issue gun-captain's certificates in three classes, namely: "A" certificate, to men who have attained a proficiency of 90 per cent and over. "B" certificate, to men who have attained a proficiency of 75 to 90 per cent. "C" certificate, to men who have attained a proficiency of 60 to 75 per cent. Certificates will not be issued to men whose proficiency is less than 60 per cent. 4. Rating. — Apprentices, first class, and seamen holding gun-captaiiis's certificates shall be advanced only through the ratings of coxswain and quartermaster, third class, and must have not less than a 4 in signaling. No man shall be given an acting appoint- ment as a gun captain, second class, who does not hold a gun-captain's certificate, and petty officers, third class, holding gun-cap- tain's certificates and gun captains, second and first classes, shall not be promoted or transferred into any other than the gun-cap- tain branch. All appointments and advancements of gun captains and men holding gun-captain's certificates shall be in accordance with the Navy Regulations and the instructions gov- erning appointments and advancements of petty officers. 5. Award of prizes. — Commanding officers are directed to award to men holding gun-cap- tain's certificates gunnery prizes as follows: To men holding "A" certificates, $3 per month. To men holding "B" certificates, %2 per month. To men holding "C" certificates, $1 per month. The holder of a gun-captain's certificate shall be paid the award monthly, or propor- tionately for a fractional part of any month (computed in the same manner as pay, except that he shall not be credited with this award for time out of service between enlistments), from date of completion of course of instruc- tion; and it shall continue throughout his current enlistment and each succeeding re- enlistment under honorable discharge, if within four months, until he shall be promoted to gun captain, second class, on which date the award shall cease. The award shall be paid by the pay officers, on public bills, under the appropriation: "Gunnery exercises — Bureau of Navigation." 6. Gun captains, having been trained as leading men, may be assigned, class for class, to fill any vacancy in the complement of a ship in the seaman branch, excepting vacan- cies for gunner's mates, but their ratings shall not be changed. John D. Long, Secretary. 854 The Navy. Pt. 2. REVISED STATUTES. Sec. 1569. General OrderI No. 532. J Navy Department, Washington, November 24, 1899. The department publishes for the informa- tion of the ser\'ice the following Executive order. John D. Long, Secretary. Executive Mansion, Washington, D. C, November 4, 1899. On and after November 4, 1899, petty officers of the Navy, performing duty which deprives them of quarters, and their rations or commu- tation thereof, shall receive $9 per month in addition to the pay of their rating. William McKinley. Rating. General Order"! No. 552. / Navy Department, Washington, June 28, 1900. The following Executive order is published for the information and guidance of all persons concerned. John D. Long, Secretary. Executive Mansion, Washington, June 27, 1900. On and after the 1st day of July, 1900, the classification and pay of the rating of elec- tricians shall be as follows, but this order shall not reduce the pay of any enUsted man during his present enUstment below the pay at which he was enlisted, or which he is now receiving: Per month. Electrician, third class $30. 00 Electrician, second class 40. 00 Electrician, first class 50. 00 Chief electrician 60. 00 William McKinley. General Order"! No. 20. J Navy Department, Washington, January 1, 1901. By authority of the President the depart- ment publishes the rates and pay of the en- listed men of the Navy as follows, but this order shall not reduce the pay or rating of any en- listed man during his present enUstment below the rate or pay at which he was enhsted or in which he is now ser\'ing, unless he shall be reduced in rating as provided by law or regu- lation. John D. Long, Secretary. Executive order. Jan. 1,1901. Rating. Chief master-at-arms Chief boatswains' mates Chie f gimne.rs' mates Chief gun captains Chief quartermasters Master-at-arms, first class Boatswains' mates, first class Gimners' mates, first class — Gun captains, first class Month! }• pay. $G5. 00 50.00 50.00 50.00 50.00 40.00 40.00 40.00 40.00 Quartermasters, first class. Master-at-arms, second class Boatswains' mates, second class.. . Gimners' mates, second class Gun captams, second class Quartermasters, second class Master-at-arms, tliird class Coxswains Gunners' mates, third class Quartermasters, third class Seamen gunners Seamen Apprentices, first class Ordinary seamen Apprentices, second class Landsmen Apprentices, third class Chief machinists Chief electricians Chiief carpenters' mates Boilermalcers Machinists, first class Electricians, first class Coopersmiths Blacksmiths Plumbers and fitters Sailmakers' mates Carpenters' mates, first class Water tenders Machinists, second class Electricians, second class Oilers Carpenters' mates, second class — Printers Carpenters' mates, third class Electricians, tliird class Painters Firemen, first class Firemen, second class Sliipwrights Coal passers Chief yeomen Hospital stewards Bandmasters Yeomen, first class First musicians Yeoman, second class Yeomen, tiiird class Hospital apprentices, first class... . Musicians, first class Musicians, second class Buglars Hospital apprentices Stewards to commanders in chief. Cooks to commanders in chief Stewards to commandants Cooks to commandants Cabin stewards Cabin cooks Wardroom stewards Wardroom cooks Steerage stewards Steerage cooks Warrant officers' stewards Warrant officers' cooks Ships' cooks, first class Ships' cooks, second class Ships' cooks, third calss Ships' cooks, fourth class Mess attendants Monthly $40.00 35.00 35.00 35.00 35. 00 35. 00 30.00 30.00 30.00 30.00 26.00 24.00 21.00 19.00 15. 00 16.00 9.00 70.00 60.00 50.00 60.00 55.00 50.00 50.00 50.00 45.00 40.00 40.00 40. 00 40.00 40.00 37. 00 35.00 35.00 30.00 30.00 30.00 35.00 30.00 25.00 22.00 60.00 60.00 52.00 40.00 36.00 35.00 30.00 30.00 32.00 30.00 30.00 20.00 45.00 40.00 45.00 40.00 37.00 32.00 37.00 32.00 25.00 22.00 24.00 20.00 35.00 30.00 25.00 20.00 16.00 1. Petty officers of the Navy performing duty which deprives them of quarters and their rations, or commutation thereof, shall receive .$9 per month in addition to the pay of their rating 2. All enlisted men of the Navy shall receive $5 per month, in addition to their pay, while serving on board of submarine vessels of the Navy. . r , . 3 Coxswains, detailed as coxswains of boats propelled l)y machinery, or as coxswains to commanders in chief, shall receive $5 per month in addition to their pay. 855 Sec. 1569. Pt. -2. REVISED STATUTES. The Navy. 4. Seamen in charge of holds shall receive $5 per month in addition to their pay. 5. Lanilsmen assigned to duty as jacks-of-the- dust or as lamplightei-s shall receive $5 per month in addition to their pay. 6. Any man who has received an honorable discharge from his last term of enlistment, or who has received a recommendation for reen- listment upon the expiration of his last term of ser\'ice of not less than three years, who reen- lists for a term of four years \nthin four months from the date of his discharge, shall receive an increase of $1.36 per month to the pay pre- scribed for the rating in which he serves, for each consecutive reenlistment. 7. Twenty cents per month is deducted from the pay due each officer, seaman, and marine in the Navy, to be applied to the fund for naval liospitals. 8. Mess attendants serving in the Navy who are honorably discharged from service shall receive S20 as monthly pay of their rating dur- ing first reenlistment, and $24 as monthly pay during second reenlistment, and during each continuous reenlistment thereafter under hon- orable discharge, provided that service prior to January 1, 1898, shall not be computed in determining increase of pay, and pro\dded further, that the monthly pay of the rating of mess attendants shall not exceed $24 per month, exclusive of additional compensation for con- tinuous service. William McKinley. General Order\ No. 40. / Navy Department, Washington, April 8, 1901. The department publishes for the informa- tion and guidance of the service the folloA\dng Executive order, authorizing the insular force, United States Navy, and designating the rat- ings and rates of pay therein; Executive Mansion, April 5, 1901. The Secretary of the Navy is authorized to enlist in the insular force. United States Na\'y, which is hereby established, not to exceed 500 Filipinos in the following ratings and at the rates of pay indicated; Insular force, United States Navy. Rates. Monthly pay. Native coxswaias $15.00 12.00 10 00 Native seamen Native ordinary seamen Native machinists, first class 28 00 Native machinists, second class 20 00 Native firemen, first class. 18. CO 15 00 Native firemen, second class Native coal passers 11.00 15.00 13.00 8.00 Native .stewards Native cooks Native mess attendants William McKinley. John D. Long, Secretary. General Order"! No. 61. / Navy Department, Washington, October 17, 1901. The following Executive order is published for the information and guidance of the service: On and after January 1, 1902, the following ratings and pay per month are established for the petty officers and other enlisted men of the commissary branch of the United States Navy: Chief commissary steward Commissary steward , Ship's cook, first class Ship's cook, second class. Ship's cook, tliird class Ship's cook, fourth class. . . Baker, first class Baker, second class $70.00 60.00 55.00 40.00 30.00 25.00 45.00 35.00 Landsmen detailed as crew messmen shall, while so acting, except when assigned as re- liefs during the temporary absence of the re- giilar crew messmen, receive extra compensa- tion at the rate of $5 per month. (Signed) Theodore Roosevelt. John D. Long, Secretary. General OrderI No. 69. / Navy Department, Washington, December 2, 1901. The following Executive order is published for the information and guidance of the naval service: executive order. White House, November 26, 1901. From and after January 1, 1902, all en- listed men of the Navy will be allowed 75 cents per month in addition to the pay of their ratings for each good conduct medal, pin, or bar issued for services terminating after December 31, 1901. Theodore Roosevelt. John D. Long, Secretary. General Order"! No. 70. Navy Department, Washington, Decembers, 1901. The following Executive order is published for the information and guidance of the naval service: White House, December 3, 1901. From and after January 1, 1902, each en- listed man of the Navy who holds a certificate as a graduate from the Petty Officers' School of Instruction, Naval Training Station, New- port, R. I., shall receive $2 per month in addition to the pay of his rating. Theodore Roosevelt. John D. Long, Secretary. 856 The Navy. PL 2. REVISED STATUTES. Sec. 1569. General Order! No. 73. / Navy Department, Washington, December 11, 1901. The department publishes for the informa- tion and guidance of the service the following Executive order: White House, December 9, 1901. From and after January 1, 1902, the classi- fication and monthly pay of mess attendants in the U. S. Navy shall be as follows: Mess attendants, first class $24.00 Mess attendants, second class 20.00 Mess attendants, third class 16.00 T. Roosevelt. John D. Long, Secretary. General OrderI No. 76. / Navy Department, Washington, December 26, 1901 . Paragi-aph 8 of General Order No. 20, dated January 1, 1901, is hereby rescinded, and pay officers are authorized to check all amounts which have been credited to mess attendants in excess of $16, in compliance with the pro- visions of that paragraph. This order does not apply to the $1.36 per month allowed by law for consecutive reenlistments. All mess attendants now in the service shall be rated mess attendants, third class, on January 1, 1902. John D. Long, Secretary. Generai, OrderI No. 79. / Navy Department, Washington, January 7, 1902. The following Executive order, modifying General Order No. 61 of October 17, 1901, is published for the information and guidance of the service: White House, Washington, January 7, 1902. Executive order, dated October 15, 1901, establishing ratings and pay for enlisted men of the commissary branch of the U. S. Navy, is so far modified as to change the first word in the footnote from "Landsmen" to "En- listed men." Theodore Roosevelt. John D. Long, Secretary. General Order\ No. 91. J Navy Department, Washington, June 25, 1902. The following Executive order, affecting General Orders Nos. 69 and 70, is published for the information and guidance of the serv- ice: White House, June 24, 1902. Executive order of November 26, 1901, relative to additional compensation for en- listed men of the Navy holding good-conduct medals, pins, or bars, and Executive order of December 3, 1901, relative to additional compensation for enlisted men holding cer- tificates as graduates from the petty officers' School of Instruction, are hereby revoked, to take effect July 1, 1902, from which date the following substitutes shall take effect: Each enlisted man of the Navy shall receive 75 cents per month, in addition to the pay of his rating, for each good-conduct medal, pin, or bar which he may heretofore have been, or shall hereafter l)e, awarded. Each petty officer holding a certificate of graduation from the Petty Officers' School of Instruction, or as gun captain, or both, shall receive $2 a month in addition to the pay of his rating. Theodore Roosevelt. William H. Moody, Secretary. Gener.\l Order No. 94. Navy Department, Washington, July 8, 1902. The Department publishes for the guidance of the service the information that the naval appropriation bill, approved July 1, 1902, for the fiscal year 1903, provides for outfits at $45 each, for naval apprentices, hospital appren- tices, landsmen under training for seamen, and all other enlisted men of the Navy, on first enlistment. William H. Moody, Secretary. General Order"! No. 101. i Navy Dep.^rtment, Washington, August I, 1902. The following Executive order, supplement- ing General Order No. 91, dated June 25, 1902, is published for the information and guidance of the service: White House, August 1, 1902. From and after July 1, 1902, each enlisted man that has been rated seaman gunner prior to April 1, 1902, or that holds a certificate of graduation from the petty officers' school, sea- man gunner class, shall receive $2 per month in addition to the pay of his rating during current and subsequent enlistments. Theodore Roosevelt. Chas. H. Darling, Acting Secretary. 857 Sec. 1569. PL 2. REVISED STATUTES. The Navy. General Ordeu'1 No. 102. / N.WY Dep.\rtment, Washington, August 6, 1902. 1. The followius: Executive order is puli- lished for the iuformatiou and guidance of the ser\dce: White House, Washington, D. C, August 4, 1902. From and after this date the following ratings and rates of pay for same are established in the naval service: Ship litter, first class, $55. Ship litter, second class, $40. Men enlisted in these ratings to be petty officers, first or second class, respectively. Theodore Roosevelt. 2. The complements of all vessels of the first and second rate are amended so as to include one ship fitter, first class, and one ship fitter, second class. Vessels of the third rate are al- lowed one ship fitter, second class. 3. The specialty work on the rating badge for ship fitter shall be the same as that for blacksmiths. Ch.\s. H. Darling, Acting Secretary. General Order! No. 10.3. / Navy Department, Washington, August 18, 1902. The following Executive order is published for the information and guidance of the service: White House, August, 13, 1902. From and after this date the following ratings and rates of pay per month are established : Painters, first calss $40. 00 Painters, second class 35. 00 Painters, third class 30. 00 Stewards, for commander in chief or commandants 60. 00 Cooks, for commander in chief or com- mandants 50. 00 Cabin and wardroom stewards 50. 00 Cabin and wardroom cooks 45. 00 Steerage and warrant officers' stewards. 35. 00 Steerage and warrant officers' cooks... 30. 00 Coopersmiths 55. 00 Boiler makers 65. 00 Theodore Roosevelt. All painters now in the service will be rated painters, third class. All painters that have served two years satisfactorily in that rating with an average of at least 4 in proficiency in rating, conduct, and sobriety, and establish their qualifications by a practical examination, may be rated painters, second class. Painters, second class, -will be required to serve one year in that rating, with an average of at least 4 in proficiency in rating, conduct, and sobriety, before being rated painters, first class. Chas. H. Darling, Acting Secretary. General Order"! No. 108. / Navy Department, Washington, September 11, 1902. The following Executive order is published for the information and guidance of the service. White Hou.'^e, September 4, 1902. Executive orders of June 25, 1902, and August 4, 1902, are hereby rescinded, and from and after July 1, 1902, every enlisted man and apprentice who has been rated a seaman gun- ner, or holds a gun-captain's certificate, or a certificate of graduation from one or more classes of the Petty Oflicers' School of Instruc- tion, shall receive $2 per month in addition to the pay of his rating for each such certificate, viz: Per For certificate as seaman gunner, or from month. seaman gunner class $2. 00 For certificate as gun captain, or from gun captain class 2. 00 For certificate from petty officer class. . . 2. 00 For certificate from artificer class 2. 00 For certificate from machinist class 2. 00 For certificate from electrical class 2. 00 Every enlisted man of the Navy shall receive 75 cents per month, in addition to the pay of his rating, for each good-conduct medal, pin, or bar which he may heretofore have been or shall hereafter be awarded. Theodore Roosevelt. All men who successfully complete, or have completed, the prescribed course in any of the above-mentioned classes, and have been re- ported qualified, will, upon the recommenda- tion of their commanding officers to the Bureau of Navigation, receive certificates of gradua- tion. The Bureau of Navigation will be in- formed as to any men who are entitled to cer- tificates as indicated above and who have not yet received them. In accordance with the provisions of the above Executive order. General Order Nos. 91 and 101 are hereby revoked. Respectfully, William H. Moody, Secretary. General Order! No. 110. / Navy Department, Washington, D. C, October 22, 1902. The following Executive order is published for the information and guidance of the service: White House, Washington, D. C, October 20, 1902. Enlisted men of the naval service regularly detailed as signalmen shall receive the follow- ing extra compensation in addition to the monthly pay of the rating which they mav hold: Signalmen, first class $3. 00 Signalmen, second class 2. 00 Signalmen, third class 1. 00 Theodore Roosevelt. 858 The Navy. Pt. 2. REVISED STATUTES. Sec. 1569. From and after the date of receipt of this order all seamen, ordinary seamen, landsmen, or apprentices who may be detailed as signal- men will be allowed this extra compensation. Flagships will be allowed four signalmen, first class; four signalmen, second class; and fom" signalmen, third class. Vessels of the first rate will be allowed four signalmen, first class, and four signalmen, sec- ond class. Vessels of the second rate will be allowed fom* signalmen, first class; two signalmen, sec- ond class; and two signalmen, third class. Vessels of the third rate will be allowed three signalmen, first class; one signalman, second class; and two signalmen, third class. This, however, does not increase the allowed complement of any vessel as at present estab- lished, but is merely an allowance to men de- tailed as signalmen. Chas. H. Darling, Acting Secretary. General Order"! No. 130. / Navy Department, Washington, May 15, 1903. Hereafter apprentices appointed as petty officers, third class, of the seamen branch, under article 856, Navy Regulations, shall be eligible for advancement under the same rules that apply to other petty officers. Chas. H. Darling, Acting Secretary. General Order\ No. 134. / Navy Department, Washington, June 26, 1903. The following Executive order is published for the information and guidance of the service' White House, Washington, D. C, June 26, 1^03. All chief petty officers of the Navy whose pay is not fixed by law, including chief water tenders, which rating is hereby established, who, on or after July 1, 1903, shall receive permanent appointments after qualifying there- for by passing such examination as the Sec- retary of the Navy may prescribe, shall be paid at the rate of |70 a month; those who serve under permanent appointments issued prior to said date, or under acting appoint- ments, shall be paid at the rates now in force. The pay of chief water tenders who hold acting appointments shall be $50 a month. Nothing herein contained, however, shall operate to reduce the present pay of any en- listed man in the Navy. Theodore Roosevelt. On and after July 1, 1903, permanent ap- pointments will be issued by the Bureau of Navigation to chief petty ofiicers in the serv- ice only after the fitness of the man for pro- motion shall have been shown before a board consisting of three officers detailed from a sMp or ships other than the one op. board of which the candidate is serving. The exam- ination shall show that the applicant is in all respects fitted to fill the rating in wliich he seeks a permanent appointment. Such ap- pointments will entitle the holder to draw pay at the rate of $70 per month. AH persons holding permanent appoint- ments as chief petty officers issued prior to July 1, 1903, may qualify by passing exam- ination as above. In the event of their quali- fying they will be given new permanent appointments by the Bureau of Navigation from the date they pass their examination. Chief petty officers who hold permanent appointments issued prior to July 1, 1903, and who do not qualify by examination; those who reenlist under permanent appoint- ments issued prior to July 1, 1903; and those who have acting appointments will draw pay under the present pay table until such time as they qualify by examination and are given permanent appointments. When these permanent appointments are presented to the pay officer for an increase in pay, he will procure orders from the command- ing officer upon S. and A. Form No. 22 (Ratings and Disratings^ to make the appro- priate changes on his books. W. H. Moody, Secretary. General OrderI No. 137. / Navy Department, Washington, July 25, 1903. The following Executive order is published for the information and guidance of the naval service: White House, July 25, 1903. Enlisted men of the Navy, after having qualified as gun pointers, according to stand- ards of marksmanship and rules that may be prescribed from time to time by the Secretary of the Navy, and who are regularly detailed as gun pointers by the commanding officer of a vessel, shall receive monthly, in addition to the pay of their respective ratings, extra pay as follows: Heavy gun pointers, first class, $10; second class, $6; for the class of guns comprising those of 8-inch caliber or larger. Intermediate gun pointers, first class, $8; second class, $4; for the class of guns com- prising those of 4-inch to 7-inch caliber, in- clusive. Secondary gun pointers, first class. $4; second class, $2; for the class of guns com- prising those of 1-pounder to 3-inch caliber, inclusive. Extra pay shall be allowed a qualifred gun pointer during not less than two years from and after the date of his qualifying, but only while he is regularly detailed as a gun pointer at a gun of the class at which he qualified. The following ratings and rates of pay per month for the same are hereby established in the naval ser\dce: Chief turret captain, holding acting appoint- ment as such, $G0; holding a permanent ap- pointment as such, $70. Turret captain, fii'st class, $50. 54641°— 22- -55 859 Sec. 1669. PL 2. REVISED STATUTES. The Navy. Enlisted men of the Navy regularly detailed by the commanding oflicer of a vessel as gun captains, except as secondary battery guns, shall receive, in addition to the pay of their respective ratings, $.■> per month, which, in the case of men holding certificates as gun captains or of graduation from the gun-captain class, petty oflicers' school, shall include the $2 per month to which such certificates entitle them. This order shall go into effect October 1, 1903. Theodore Roosevelt. In pursuance of the provisions of the foregoing order, the following instructions will be ob- served : RULES governing EXTRA PAY TO GUN POINTERS The standards of marksmanship entitling men to extra pay as gun pointers (first and second classes) of the three classes of guns (heavy, intermediate, and secondary) will be an- nounced by the department as soon as practi- cable after the completion of the record target practice to be held early in 1904. These standards are subject to change yearly. A gun pointer's "gunnery record" will be his sole certificate of qualification, and the rate of his extra pay as a qualified gun pointer will be determined by his score at an annual record target practice, signed by the chief umpire detailed for the ship at that practice. As soon as the official announcement of standards of marksmanship is received, the commanding officer of each vessel shall direct the pay officer (using S. and A. Form No. 236, "Order for extra compensation for enlisted men") to credit the men that have qualified as gun pointers, first or second class, with the extra pay allowed them, respectively, by the foregoing Executive order; and over the men's names on the pay roll shall be entered in red ink the abbre\aations "H. G. P., 1st CI.," "H G. P., 2d CI.," "I. G. P., 1st CI.," "I. G. P ; 2d CI.," "S. G. P., 1st CI.," "S. G. P., 2d CI.," as the case may be. Such extra pay shall be allowed from the date that the vessel on which the pointer qualifies completes her record target practice. A gun pointer shall receive extra pay as such only during the time that he is regularly de- tailed by the commanding officer of the vessel as a gun pointer at a gun of a class at which he has qualified; if he has qualified at more than one class of gun, he shall receive only the extra pay allowed for a gun of the class at which he IS regularly detailed as gun pointer. Although the standards of marksmanship are subject to change yearly, a pointer that qualifies at any annual record practice is entitled to the corresponding extra pay for all the time during the ensuing period of two years that he is regu- larly detailed as a gun pointer at a gun of the class at which he qualified at that practice. A qualified gun pointer reenlisting for four years within four months of his discharge, and regularly stationed as a gun pointer at a gun of a class at which he was qualified at the time of his discharge, shall be entitled to the corre- sponding extra pay during the unexpired por- tion of the period of two years from the date of (jualifying— the interval of time between the date of his discharge and reenlistment to be included in the period of two years. QUALIFICATIONS AND APPOINTMENT OF TURRET CAPTAINS. The qualifications required for the duties of turret captain are sufficient knowledge and ability to drill the turret crews and to control the fire of the guns in action in the absence of the turret officer, and the mechanical knowl- edge and skill necessary to overhaul all parts of the turret and gun gear and keep them at all times in efficient condition. For each 10-inch, 12-incli, and 13-inch turret, and for each combination of superimposed turrets, one chief turret captain is allowed; but a turret captain, first class, may be assigned to any such turret for which no cliief turret captain is available. For each 8-inch turret (not superimposed) one turret captain, first class, is allowed. To fill these ratings, wholly or in part, com- manding officers will select candidates that appear to possess the necessary qualifications from gunner's mates, seamen gunners, men holding the rate of gun captain or certificate of graduation from the petty officers' school, gun captain class, and other intelligent men— not alone of the seaman branch — of mechanical bent and good promise as leading men. The names of these men shall be sent to the squad- ron commander, who will order their examina- tion before a board of not less than three officers, the majority to be turret officers if practicable, to be appointed by him, none of whom shall be taken from the ship to which the candidates belong. Commanding officers shall nominate at least two candidates for each vacancy as turret captain, in order that the examination may be competitive. The candidates that pass the examination will be eligible for acting appointments as turret captains, first class; but no cliief petty officer shall be rated a turret captain, first class, against his will. Permanent appointments and advancement will be governed by the same regulations that apply to other petty officer ratings. EXTRA PAY FOR GUN CAPTAINS. When the commanding officer details a petty officer or other enlisted man as a gun captain he shall direct the pay officer to credit him with the extra pay allowed by the foregoing Execu- tive order (using S. and A. Form No. 236, "Order for extra compensation for enlisted men"), and over the man's name on the pay roll shall be entered in red ink the abbreviation ' G. C." DISCONTINUING EXTRA PAY. When the commanding officer revokes the detail of a man as a gun captain or gun pointer he shall, in writing, direct the pay officer to discontinue the corresponding extra pay. William H. Moody, Secretary. 860 The Navy. Pt. 2. REVISED STATUTES. Sec. 1569. General Order"! Xo. 168. / Navy Departmext, Washington, September 9, 1904- The following Executive order, affecting General Order No. 108, is published for the injformation and guidance of the service: White House, September 5, 1904. The Executive order of September 4, 1902, authorizing additional pay to certain enlisted men of the Navy, is hereby so far modified that hereafter the date of the award of a good- conduct medal, pin, or bar shall be the date of the holder's discharge by reason of the ex- piration of the enlistment for which the medal pin, or bar is given, the allowance of 75 cents per month to be reckoned from said date of award: Provided, That nothing in this order shall be construed to authorize any change in the date of award of any good-conduct medal, pin, or bar heretofore awarded, or to grant any arrears of allowances on account thereof. Theodore Roosevelt. Paul Morton, Secretary. General Order") No. 186. J Navy Department, Washington, June 5, 1905. The following Executive order is published for the information and guidance of the service: Any enlisted man of the Na\'y detailed to perform the duties of ship's tailor on board of a vessel having a complement of 600 men or more, exclusive of marines, shall receive S20 per month in addition to the monthly pay of his rating; on a vessel having a complement of from 300 to 600 men, exclusive of marines, .$15 per month in addition to the monthly pay of his rating ; on a vessel having a complement of less than 300 men, exclusive of marines, $10 per month in addition to the monthly pay of his rating. Any enlisted man of the Navy detailed as tailor's helper on board of a vessel having a complement of 600 men or more, exclusive of marines, shall receive $10 per month in addi- tion to the monthly pay of his rating: Pro- vided, That the total pay of an enlisted man detailed to perform the duties of ship's tailor shall not exceed $50 per month, and of tailor's helper shall not exceed $40 per month. Theodore Roosevelt. The White House, June 2, 1905. From and after .July 1, 1905, vessels having a complement of 600 men or more, exclusive of marines, will be allowed one ship's tailor and one tailor's helper; vessels having a comple- ment of less than 600 men and more than 100 men will be allowed one ship's tailor. Men detailed for duty as ship's tailors, or as tailor's helpers, will be assigned to the paymas- ter's division and perform the duties of their detail without reference to the rating held by them. It shall be their duty to alter, when necessary, Avithout expense to the enlisted men of the Navy, all uniforms, caps, and clothing issued by the paymaster. The above does not increase the allowed com- plement of any vessel as at present established. Paul Morton, Secretary. General Order\ No. 9. / Navy Department, Washington, November 9, 1905. The following Executive order is published for the information and guidance of the service: Besides the $5 per month extra pay allowed them for submarine ser\'ice, enlisted men ser\'ing with submarine torpedo boats, and ha\'ing been reported by their commanding officers to the Navy Department as qualified for submarine torpedo-boat work, shall receive $1 additional pay for each day during any part of which they shall have been submerged in a submarine torpedo boat while under way: Pro- vided, however, That such further additional pay shall not exceed $15 in any one calendar month. Theodore Roosevelt. The White House, November 8, 1905 Men to be eligible for recommendation by their commanding officers as "qualified for submarine torpedo boat work" must fulfill the requirements prescribed from time to time by the Bureau of Navigation. Service on a submarine torpedo boat shall be counted sea service for all purposes of rating, but in examinations for permanent appoint- ment petty oflicers who have served their pro- bationary period wholly or in part on vessels of this class will be required to show such pro- ficiency in all the usual duties of their respec- tive ratings as \\i\\ qualify them to serve in such rating on vessels of any class. The examina- tions for permanent appointment as chief petty officer, called for in article 852, paragraph 2, of the Navy Ptegulations, shall be conducted by officers other than those on duty with sub- marine torpedo boats. Whenever a submarine torpedo boat is en- gaged on duty under water, it shall be accom- panied by a tender which shall be capable of including comfortable accommodations for the officers and men of the submarine. Time spent by officers on duty with sub- marine torpedo boats shall count as part of a cruise. Charles J. Bonaparte, Secretary. General Order! No. 31. / Navy Department, Washington, D. C, October 29, 1906. In accordance with the act of Congress ap- proved June 29, 1906, "making appropriations for the naval service for the fiscal year ending June 30, 1907. and for other purposes," the 861 Sec. 1660. PL 2. REVISED STATUTES. The Navy. department directs that any man enlisting on or after l)eceml»er 1, 190(), who is discharged (luring tlie first six months of a first enlistment for any cause other than disability incurred in the line of duty shall have checked against his accounts prior to discharge the cost of such portion of outfit allowed on first enlistment as he may have drawn. Tkuman H. Nkwderry, Acting Secretary. General OrderI No. 34. / Navy Department, Washington, November 28, 1906. The following Executive order is published for the information and guidance of the service: To provide adequate compensation for trained men, the pay now prescribed by Executive order for each rating in the Navy is hereby increased $5 per mouth during the second period of service and a further sum of $3 per month during each and every subsequent period of service: Provided, That only enlisted men who are citizens of the United States, and whose second and subsequent periods of service each follow next after service in the Navy that was terminated by reason of explication of en- listment, shall receive the benefits of the In- creased pay named herein: Provided further. That in the cases of men who are or were finally discharged from the Navy by reason of expira- tion of enlistment, the first enlistment on or after the date of this order shall be considered the second period of service which shall carry with it the Increased pay provided by this order, except that men discharged on recom- mendations of boards of medical survey shall, if they reenter the service, be given credit for any previous periods of service In the Navy which were terminated by reason of expiration of enlistment. Chief petty officers detailed as Instructors of apprentice seamen at naval stations who qualify as instructors by examination shall receive hereafter, in addition to their pay, the sum of $10 per month, while so detailed, such pay to be considered extra pay for special duty. Apprentice seamen detailed as apprentice chief petty officers, apprentice petty officers, first, second, or third class, in connection with the instruction of apprentice seamen at naval stations, shall receive hereafter, in addition to their pay, the sum of $2.50, $2, $1.50, and $1 each per month, respectively, whUe so detailed, such pay to be considered extra pay for special duty. Theodore Roosevelt. The White House, November 27, 1906. Chief petty officers must be citizens of the United States and serving under continuous service in order to be eligible for exanalnation for detail as instructors of apprentice seamen at naval stations. They must also qualify in ac- cordance with the requirements prescribed from tune to time by the Bureau of Navigation. The complement of apprentice seamen au- thorized at each naval station as apprentice petty officers will be four (one of each rating) for each 75 apprentice seamen under trairdng at the station. G. A. Converse, Acting Secretary. General Order"! No. 43. / Navy Department, Washington, D. C, April 6, 1907. On and after July 1, 1907, all enlisted men of the Navy shall receive, on first enlistment, outfits amounting in value as follows: Samoans and such men of the messman branch as are not required to possess complete outfits, not to exceed $20. 00 Men of the insular force, not to exceed . . 30. 00 All other enlisted men, not to exceed.. 60. 00 Commanding officers will direct which of the above amounts is to be allowed In each case of first enlistment. Attention is called to the Uniform Regula- tions, 1905, pages 53 and 54, regarding the por- tions of outfits to be issued on enlistment, and on transfer to cruising vessels; also to General Order 31, of October 29, 1906, regarding the checkage against the accounts of men dis- charged during the first six months of first en- listment for any cause other than disability incmred in the line of duty, of the cost of such portion of the allowed outfit as may have been drawn. V. H. Metcalf, Secretary. General OrderI No. 57. / Navy Department, Washington, December 9, 1907. The follo\\T.ng Executive order Is published for the information and guidance of the naval service: The White House, November 16, 1907. The extra pay allowed gun pointers in accordance with the Executive order of July 25, 1903, shall be allowed a gun pointer reg- ularly detailed as a gun pointer at a gun of the class at which he qualified only as long as he remains qualified: Provided, This order shall be construed as affecting only gun pointers who qualify subsequent to the date of this order. Theodore Roosevelt. V. H. Metcalf, Secretary. General OrderI No. 62. / Navy Department, Washington, February 7, 1908. The following Executive order is published for the information and guidance of the service: On and after March 1, 1908, the classification and pay of mess attendants in the Navy who 862 The Navy. Ft. 2. REVISED STATUTES. Sec. 1569. are citizens of the United States shall be as follows: Per month. Mess attendants, first class $30. 00 Mess attendants, second class 25. 00 Mess attendants, third class 20. 00 On and after ^larch 1, 1908, all stewards and cooks in the messman branch who are citizens of the United States and who hold, or may receive certificates of qualification as stewards or cooks, shall receive $5 per month additional to the pay of their rating while holding such certificate, such additional pay to be of a permanent character as regular pay. Theodore Roosevelt. The White House, January 28, 1908. On and after March 1, 1908, all mess attend- ants who are citizens of the United States shall be paid in accordance with the above Executive order. Certificates of qualification heretofore or hereafter issued by the Bureau of Navigation shall remain in force for a period of two years from their date, unless sooner revoked in the discretion of the commanding officer for cause, and shall be renewed by the commanding officer at the expiration of each two years for a similar term, provided the continued good performance of duty of the steward or cook so warrants. V. H. Metcalf, Secretary. 3. Act of May 13, 1908, construed.— The act of May 13, 1908 (35 Stat., 128), proA-ided that "the pay of all active and retired enlisted men of the Navy is hereby increased ten per centum," and that '"all pay herein pro^ided shall remain in force until changed by act of Congress. " The 10 per cent increase pro^'ided by said act of May 13, 1908, applied only to the pay proper of enlisted men, or their base pay anci permanent additional pay, such as addi- tional pay allowed by Executive orders for con- tinuous sendee, longeAity service, good-con- duct medals, pins, or bars, and for graduation certificates; and did not apply to their tempo- rary additional pay provided by Executive orders for special seridce, such as for gun point- ers, messmen, coxswains of steam launches, jacks-of-the-dust, etc. (14 Comp. Dec, 829.) Nevertheless, while the increase of 10 per cent allowed by the act of May 13, 1908, ap- plied only to base pay and permanent addi- tions thereto, the further proAdsion of said act, that all pay therein provided shall continue in force until changed by act of Congress, included not only such base pay and permanent addi- tions thereto, but also temporaiy additional pay for special ser\'ice. (24 Comp. Dec, 364.) The effect of the act of May 13, 1908, was to make the pay of all enlisted men of the Navy, then in force, and as increased by said act, per- manent and subject to change only by legisla- tion of Congress; and to prohibit any addi- tional compensation for special sendees per- formed by enlisted men under authority of Executive orders issued since May 13, 1908. Accordingly, where Executive orders in force on the last-named date limited the payment of additional compensation to men detailed to perform special sendees on board vessels of the Navy, the conditions prescribed by such Exec- utive orders could not, after the date of said act, be changed by Executive order so as to allow such additional compensation for similar sen-- ices performed at shore stations. (24 Comp, Dec, 364.7 Hdd, however, that additional compensa- tion pro\dded by Executi-\'e order prior to May 13, 1908, for enlisted men of the Navy de- tailed as gun pointers "by the commanding officer of a vessel, " may be allowed enlisted men detailed as gun pointers by the officer in command of an enlisted force of the NaAy aboard a merchant ship, who may be consid- ered as the commanding officer within the meaning of said order; but that the conditions under which said additional compen.sation may be allowed are not subject to change. (24 Comp. Dec, 364.) The act of May 13, 1908, pro\dding that the pay of all enlisted men of the Na\y is hereby increased 10 per cent, and that all pay herein proAdded shall remain in force until changed by act of Congress, took from the President the powers pre\dously conferred upon him, under section 1569, Re%dsed Statutes; and Congress adopted, as the basis of the pay for enlisted men of the NaAy, the rates then in force, making such rates permanent. (26 Comp. Dec, 428). By the act of May 13, 1908, Congress intended to grant, by direct legislative action, the right to pay preAdously granted by Executive orders, subject to the limitations which the Comptroller of the Treasury and the courts had by decisions placed thereon. Had Con- gress intended to extend benefits beyond those which had been held to arise under Executive orders, it is proper to assume that such intent would have been expressed. (26 Comp. Dec, 428.) 4. Civilians shipped on naval vessels. — Section 1569, Revdsed Statutes, authorizing the President to fix the pay of petty officers, sea- men, and others, does not apply to seamen on a vessel who were "shipped" and not enlisted, and whose pay was fixed as a matter of agree- ment with the officer who shipped them. (Sto- vel V. U. S., 36 Ct. Cls., 392.) 5. Insular force. — Pursuant to the author- ity conferred by section 1569, ReAdsed Statutes, the insular force, United States Na\'y, was established by Executive order dated April 5, 1901 (incorporated in art. 4429, Na\y Regs., 1913), under which the Secretary of the ^axy is authorized to enlist in the insular force not to exceed 500 Filipinos in the ratings and at the rates of pay therein specified. (27 Comp. Dec, 357.) Under the act of May 13, 1908 (35 Stat., 128), the rates of pay of the insular force, as estab- lished by the Executive order of April 5, 1901, plus the 10 per cent increase thereof pro\dded by that act, was to remain in force until changed by act of Congress. (27 Comp. Dec, 357.) Pursuant to section 1569, Re\dsed Statutes, the President issued an order dated April 5, 1901, published in Na\'y Department General Order No. 40 of April 8, 1901, establishing an "insular force" of Filipinos and pro\ddiug rates of pay for men enlisted therein. Held, that the enlisted men of the said insular force 863 Sec. 1669. Pt. 2. REVISED STATUTES. The Navy. are enlisted men of the Regular Navy of the I'niteil States; that unless said insular force be a part of the Regular Navy there would be no authority for the eatal)lishment of such force; and that, l)eing enlisted men of the Regular Navy, they are entitled to the outfits on first enlistment as authorized by act of April 27, 1904 (33 Stat., 326), and the extra pay for de- tention in the senice as provided t)v section 1122, Revised Statutes. (12 Comp. Dec, 189; see also note to sec. 1422, R. S.) As General Order No. 40, Navy Department, April 8, 1901, which provided for the organiza- tion of the insular force of the Na\y, made no provision for the payment of additional pay for medals, pins, and bars, and as said order was not modified or enlarged by the act of May 13, 1908 (35 Stat., 127), held, that the members of said insular force acquired no further benefits by reason of the provisions of that act, and accordingly are not entitled to the additional Say provided for enlisted men of the Regular avy who are awarded good-conduct medals, pins, and bars. (26 Comp. Dec, 428.) Enlisted men of the insular force are entitled to extra pay conferred upon all enlisted men by statute; but extra pay pro\'ided by Execu- tive orders other than that which established the insular force is not payable to members of said force. (26 Comp. Dec, 428.) The rates of pay prescribed by section 6 of the act of May 18, 1920 (41 Stat., 602), for certain enlisted men of the Na\'y are applicable to the insular force. Section 13 of the same act provides that same shall be the rates of pay during the current enlistment of "all" men in active service on the date of the approval of the act, etc. The words "all men" as used in that section clearly extend to the enlisted men of the insular force. (27 Comp. Dec, 357.) The classification in the act of May 18, 1920, section 6, prescribing base pay for certain en- listed ratings, does not include the ratings of steward or cook to commander in chief, stewards and cooks to commandants, or any of the en- listed ratings of the insular force. Apparently no pro\dsion is made in the act for discontinuing these ratings, or adapting them to the classified ratings, and therefore they exist as ratings for which no base pay is expressly provided by law. Held, that the proAdsion in the act of June 4, 1920 (41 Stat., 836), empowering the Secretary of the Navy to establish such grades and ratings as may be necessary for the proper administra- tion of the enlisted personnel of the Navy and Marine Corps, confers upon the Secretary authority to remodel or change any existing ratings so as to make the designation thereof conform to the classification of the ratings for which a new base rate of pay is provided in the act of May 18, 1920 (41 Stat., 603, 604); and therefore that the Secretary is authorized to determine the proper class in the messmen branch in which native stewards, cooks, and mess attendants of the insular force of the NaNy should be placed in order to conform to the classification of ratings for which base pay is prescrif)ed by said act of May 18, 1920. (Comp. Dec, Dec 17, 1920, file 29199-28:1.) 6. Mates. — See notes to sections 1408, 1409, 1556, and 1573, Revised Statutes. The exception of mates from section 1569, Revised Statutes, merely indicates that Con- gress, having already fixed their pay by section 1556, such pay need not be fixed by the Presi- dent. Such excei)tion of mates from other petty officers in section 1569 indicates that they are petty oflicers. (U. S. v. Fuller, 160 U. S., 593; see note to sec 1579, R. S.) A mate is eligible for selection and designa- tion as Navy mail clerk under the act of May 27, 1908 (35 Stat., 417), and is entitled to receive the pay provided in said act for a Navy mail clerk in addition to his pay as mate, provided that the pro\asion in said act for the designation and qualification of a Navy mail clerk has been fully complied with. (15 Comp. Dec, 262. See below, "Additional pay for special duty.") In view of section 1558, Revised Statutes, mates are not entitled to the additional pay provided for by Executive ord-^r for good- conduct medals, pins, and bars. (9 Comp. Dec, 600.) Mates being specifically excepted from sec- tion 1569, under authority of which extra com- pensation for good-conduct medals and bars, seamen gunners' certificates, and petty officers' certificates is provided, they are not entitled to such extra compensation. (14 Comp. Dec, 457.) 7. Mess attendants and cooks. — See also above, "Pay of insular force"; and see below, "Longevity pay. General Order No. 34." The rates of increased pay for continuous service which, before the naval personnel act of March 3, 1899, section 16 (30 Stat., 1008), had been fixed by the President under section 1569, Revised Statutes, became by said act a part of the statutory law; said act fixed the increase of $1.36 per month to the pay pre- scribed for the rating of mess attendants for each consecutive reenlistment as the measure of the increase of value to the service of one who so reenlists, and it is not within the power of anyone, until the law is changed, to fix a greater or less rate. Under section 1569, the President could fix the pay to be allowed mess attendants, and could change same from time to time as he deemed just and proper; but when he had fixed the rate, then by section 16 of the personnel act Congress declared what increased amount they should receive for reenlistment. Accordingly, held, that Navy Department General Order No. 20, of January 1, 1901, fixing the pay of mess attendants for the second and third enlistments, and adding $4 to the monthly pay of the rating for a first reenlistment and $4 more per month for a second reenlistment, in addition to the $1.36 per month for each consecutive reenlistment allowed by section 16 of the personnel act of March 3, 1899, was con- trary to law. (8 Comp. Dec, 227.) A mess attendant of the Navy, third class, who holds a certificate of identity issued by the Department of Commerce and Labor, or other proper evidence showing that he was born in the Hawaiian Islands, is a citizen of the United States and as such is entitled to be paid at the rate provided for a citizen of the United States. (17 Comp. Dec, 556.) Extra pay for enlisted men detailed as messmen was authorized by General Order No. 61 of October 17, 1901, as amended by 864 The Navy. Pt. 2. REVISED STATUTES. Sec. 1569. General Order No. 79 of January 7, 1902. Held, that a man enhsted as a mess attendant is not entitled to the extra pay allowed men enlisted in other branches and temporarily detailed to duty as messmen. The pay of such mess attendants is governed bv specific orders. (Comp. Dec, Apr. 11, 1908, 86 S. and A. Memo., 631.) The rates of pay of mess attendants in the Nax-y who are citizens of the United States were fixed by Executive order dated January 28, 1908, and promulgated to become effective from March 1, 1908, in General Order No. 62, Navv Department, February 7, 1908. The act of May, 13, 1908 (35 Stat., 128), should be construed as specifically fixing, as permanent, rates of pay for each rating then in effect for the Navy. Included in these rates are the rates of pay for mess attendants, citizens of the United States. Accordingly, a mess attendant, second class, is not encitted to the pay thus fixed by law for mess attendants, third class. (25 Comp. Dec, 424, citing Gen. Order 303, June 18, 1917, note B. Compare, Comp. Dec, Apr. 14, 1914, 158 S. and A. Memo., 3038, noted below under "Retired enlisted men.") The fact that enlisted men of the Na\'y hold- ing the rating of mess attendants, second class, receive less pay, including the increase granted by the act of 5lay 22, 1917, than mess attend- ants, third class, does not authorize the credit- ing of men holding the rating of mess attendant, second class, with the pay fixed for the third class. (25 Comp. Dec, 424.) A wardroom cook who is a citizen of the United States and who holds a certificate of qualification as cook, issued to him while he was a warrant officer's cook, ia entitled under such certificate to $5 per month additional pay until its expiration, two years from issuance unless it shall sooner lapse or be revoked. (18 Comp. Dec, 724.) 8. Additional pay for special duty, etc. — See also, below, "Retired enlisted men," and "Leave of absence"; and see above "Mess attendants and cooks." The increased pay for a\-iation duty in the case of enlisted men of the Na^^ is to be com- puted upon the pay and permanent additions thereto of their rating and service. (22 Comp. Dec, 11.) As originally pro\'ided by the act of May 22, 1917 (40 Stat., 87), the increase of pay to en- listed men of the Na\'y, which was to continue until not later than six months after the terminar tion of the then existing war, was not perma- nent in character, but for ser\'ice under special circumstances due to the emergency of war. Accordingly, it was held that such increase should not be included in the computation of the per cent additional pay for flpng duty, either as pay or as permanent additions to pay (citing 24 Comp. Dec, 139). However, the act of July 11, 1919 (41 Stat., 140), changed the natm-e of these increases and expressly de- clared them to be the permanent rates of pay of enlisted men of the Navy, to continue throughout all existing enlistments and all enlistments or reenlistments prior to July 1, 1920. They are, therefore, permanent for all existing and futiu-e enlistments Avithin these bounds. Accordingly, it was held that the act of July 11, 1919, created "a new permanent base rate of pay for each rating, and that this rate is to be determined by adding to the base pay of a particular rating in effect prior to July 11, 1919, the increase applicable thereto granted by the 1917 law." (26 Comp. Dec, 220, citing and afiirming 26 Comp. Dec, 139.) Distinguished-service cross. — An enlisted man of the Navy who, while ser\dng under the jurisdiction of the Army, was awarded the dis- tinguished-service cross provided by the act of July 9, 1918 (40 Stat., 871), for persons serving in any capacity with the Army, is entitled upon his return to the Na\^ to the additional pav at the rate pro\'ided by the act of February 4, 1919 (40 Stat., 1056), for the recipients of the Na\-y cross for distinguished sei-vice. (26 Comp. Dec, 304; see also note to sec, 1407, R. S.) Navy mail clerks. — Where an ordinary seaman of the Na\'y is appointed assistant Navy mail clerk under the act of May 27, 1908 (35 Stat., 406), for duty on board a particular flagship named, the appointment of such assistant mail clerk io not revoked by transfer of the flag to another ship. The proper oflicer not ha\'ing directed the termination of his sersdces, and he actually continuing to perform postal services, such seaman is entitled to the additional pay; but he is not entitled to pay for postal services performed on board another vessel, as he earns the pay by services on board the vessel to which he was designated. (18 Comp. Dec, 589.) Where specific pro^ision for the position of NaA-y mail clerk for a fleet has been omitted from the classes authorized in Navy regulations, such position can not legally be filled; or, if filled, the incumbent may not receive pay therefor. (24 Comp. Dec, 491; but see, contra, 31 Op. Atty. Gen., 320, July 19, 1918, noted under sec. 236, R. S., "Jurisdiction of account- ing officers and heads of executive depart- ments.") Since the laws relating to the delivery of special delivery mail matter apply only to post offices, pajonent to Na\-y mail clerks and assistant Navy mail clerks of fees for making such deliverv is not authorized. (25 Comp. Dec, 568.) For other cases, see above, "Pay of mates"; and see below, "Changes in ratings." _ Service on submarines. — A submarine boat in the hands of the contractor and not accept- ed by the Government is not a "submarine vessel of the Navy" within the meaning of Executive order of January 1, 1901, General Order No. 20, and where enlisted men of the Na\'y are assigned to perform duty in con- nection with the fitting out of such submarine boat before its acceptance by the Governraent, such men are not entitled to the additional pay as provided in the said Executive order. (18 Comp. Dec, 545.) Enlisted men of the Navy attached to the tender of a submarine group, "under instruc- tion," already reported "qualified" but for a different class of submarine torpedo boats, who are performing actual duty on a sub- marine torpedo boat in commission but of a different class ft'om that for which pre\ioiisly reported qualified, and are performing no duty on board the tender to which attached. 865 Sec. 1569. PL 2. REVISED STATUTES. The Navy. are entitled, in addition to the $5 per month provided for service on submarines, to $1 per day for the days on wliich their vessel is sub- merged, as provided by Executive order of November 9, 1905. (19 Comp. Dec., 468.) Enlisted men of the Navy attached to a tender of a submarine group, "under instruc- tion," but not yet reported "qualified," who are performing actual duty on board a sub- marine torpedo boat in commission, but per- forming no duty on board the tender to which attached, are entitled to the $5 additional pay prescribed in Executive order of January 1, 1901. (19 Comp. Dec, 468.) Enlisted men of the Navy attached to and serving on submarines are entitled to the in- creased pay pro\'ided for duty on such vessels although they are actually quartered and messed on shore. (22 Comp. Dec, 299.) Enlisted men of the Navy serving on a submaiine vessel are entitled to the additional pay pro\'ided for such service, although such vessel is merely in commission "in ordinary." (23 Comp. Dec, 89.) An enlisted man of the Navy detailed as instructor at a submarine school who, in the performance of duty, occasionally submerges in a submarine torpedo boat, while under way or other\vise, is not attached to or serving on board of or with a submarine torpedo boat within the meaning of Navy Department General Order No. 9 of 1905, so as to be en- titled to the additional pay of $1 per day provided therein. (25 Comp. Dec, 533,) Gun captains and gun pointers. — An enlisted man of the Navy who is detailed as a gun captain, and who also holds a certificate of graduation from the seamen gunners' class, is entitled, while so detailed, to additional pay both as a gun captain and under his certificate as a seaman gunner. (22 Comp. Dec, 575.) General Order No. 137, of July 25, 1903, pro\ddes for additional pay, after qualifica- tion, to enlisted men detailed, under certain restrictions, as gun pointers. The restrictions are that he be detailed at a gun of the class at which he qualified. The order provides for said detail to be made by the commanding officer of a vessel. Held, that the officer in command of an enlisted force of the Navy, aboard a merchant ship, might well be con- sidered as the commanding officer within the meaning of said general order, and, subject to the further conditions of the general order, if an enlisted man be detailed at a gun on board a merchant ship of the class at which he was qualified, he would be entitled to the additional pay as gim pointer of that class. However, the pro\asions of the act of May 13, 1908, limit the right to the additional com- pensation to details to guns of the class at which qualified. (24 Comp. Dec, 364.) Seamen gunners' certificates. — See notes above, under "Pay of mates," and 22 Comp. Dec, 575, noted above as to pay of gun cap- tains. An enlisted man who holds a petty officer's certificate of graduation from electrical class, and also holds a petty officer's certificate of graduation from the seaman gunner class, is entitled to additional monthly pay for each of said certificates in accordance with Execu- tive order of September 4, 1902, promulgated in General Order No. 108 of September 11, 1902. (Comp. Dec, Apr. 26, 1915, 170 S. and A. Memo., 3597.) But an enlisted man who holds two certificates of graduation from the seaman gunner class of different schools is entitled to additional pay for only one such certificate. (Comp. Dec, Dec 3, 1914, 166 S. and A. Memo., 3461.) Coxswains. — The "coxswains" who are en- titled to additional pay under Executive order of January 1, 1901, published in General Order No. 20 of 1901, are confined to those regularly rated as coxswains, and do not in- clude men of other ratings detailed as cox- swains. (20 Comp. Dec, 618.) The additional pay of coxswains continues during temporary separation of boats from their ship unless their details to such duty are revoked. (Comp. Dec, May 31, 1917, 195 S. and A. Memo., 4260.) Ship's tailors and ship's helpers. — If the total pay of an enlisted man of the Navy, including increase for foreign service, extra pay as heavy-gun pointer, and additional pay as ship's tailor, exceeds $50 per month, he is only entitled to receive sufficient of the ad- ditional pay as ship's tailor to make his total pay amount to §50 per month, in view of General Order No. 186, June 5, 1905, in which it is stated that a ship's tailor's monthly pay shall not exceed $50. (15 Comp. Dec, 87.) General Order No. 186, dated June 5, 1905, limits the payment of additional pay to ship's tailors and ship's helpers to men detailed to perform the duties on board vessels, and fix a sliding scale of monthly compensation based on the complement of the vessel. Accordingly, held, that the act of May 13, 1908, does not authorize payment under any other conditions, and the conditions may not after the date of that act, be changed by Executive order. (24 Comp. Dec, 364.) The increased rates of pay pro%TLded for the enlisted personnel of the NaA-y by the act of May 22, 1917 (40 Stat., 87), which, by the act of July 11, 1919 (41 Stat., 139), became part of the permanent base rates of pay of enlisted men in certain enlistments, should be included in arri%dng at the total pay of ship's tailors and helpers. (26 Comp. Dec, 258.) Petty officer's c£rtificates. — -See note below under "Men furloughed without pay"; and see note above, under "Seamen gunners' cer- tificates. " Good-conduct medals, pins, and bars. — See also notes above, under "Pay of mates, " and "Pay of insular force"; and see notes below, under "Changes in ratings. " Prior to the passage of the act of May 13,1908 (35 Stat., 217), the rates of pay for the various ratings for good-conduct medals, and for most of the extra duty and detail pay was pro\dded for by Executive orders, in accordance with section 1569, Revised Statutes. The addi- tional pay allowed to holders of good-conduct medals, pins, or bars was last fixed by Execu- tive order incorporated in General Order No. 108, dated September 11, 1902. By enactment of May 13, 1908, the additional pay for medals, pins, and bars became statutory rates. (26 Comp. Dec, 428.) 866 The Navy. Pt. 2. REVISED STATUTES. Sec. 1569. Medals, pina, and bars awarded to enlisted men for service in the insular force of the Navy entitle the holders thereof, after transfer to the Regular Navy for general sendee, to the addi- tional pay authorized by Executive order of September 4, 1902, embodied in General Order No. 108, September 11, 1902, and article 3664, Navy Regulations, 1913; plus 10 per cent increase thereof as authorized by act of May 13, 1908 (35 Stat., 128). (27 Comp. Dec, 468.) Also, an enlisted man of the Navy is entitled to be credited mth pay for a good-conduct medal granted to him for service in the Marine Corps. (20 Comp. Dec, 360.) 9. Longevity pay, General Order No. 34. — See also note above, under "Mess attend- ants and cooks"; and see notes below, under "Retired enlisted men," "Men transferred to Fleet Naval Resen^e," "Men furloughed with- out pay, " " Naval Academy Band, ' ' and ' ' Men extending enlistments." Further, see note to section 1573, Revised Statutes. The complete control given the President by section 1569, Rex-ised Statutes, over the pay of enlisted men certainly justified the Presi- dent in establishing more than one amount as the pay of a rating. If he may fix the pay of a fireman, first class, at $35 per month, he may also fix the amounts to be paid in that rating at $35, $40, and $43, as done by General Order No. 34 of 1906, and allow the amount of $40 to those of that rating having foiu" years' experience under the conditions stated in the order, and the amount of $43 to those of that rating ha\'ing eight years' experience. Neither period of former experience must necessarily be the period immediately preceding the last enlist- ment, but may have been at any time, contin- uous reenlistment not being required. _ In addi- tion to the pay so fixed by the President, the men are entitled to the $1.36 per month allowed by the act of March 3, 1899, if they come within its terms as to reenlistment within four months, etc. (13 Comp. Dec, 448, distinguishing 8 Comp. Dec, 227, noted above, relating to con- tinuous ser\'ice pay of mess attendants.) Na\y Department General Order No. 34 of November 28, 1906, publisliing Executive order of November 27, 1906, proxiding $5 per month and $8 per month additional pay_ for trained men who are citizens of the United States, was \vithin the authority of the President under section 1569, Revised Statutes, and not contrary to the act of March 3, 1899, sec- tion 16 (30 Stat., 1008), proAiding continuous- service pay of $1.36 per month. (13 Comp. Dec, 448.) Section 1569, Revised Statutes, proAdded that the pay of enlisted men shall be fixed by the President, and that he might change the same from time to time as he deemed just and proper. Congress, by section 16 of the Na\y personnel act of March 3, 1899, proiided that to the rates of pay thus established by the President the enlisted men shall in addition receive an increase of $1.36 per month for each continuous reenlistment. Congress ha\ing un- dertaken to pro\'ide for continuous-service pay the general authority of the President to fix the pay of enlisted men of the Navy was modified to that extent, but to that extent only. Gen- eral Order No. 34 of 1906 does not attempt to provide for continuous-service pay, but does undertake to provide for pay based on length of service, or longe\T.ty pay. The main pur- pose of the statute pro\dding for continuous- service pay was to encourage immediate reen- listment, while that of General Order No. 34 was to establish higher rates of pay for trained men. (13 Comp. Dec, 448; 17 Comp. Dec, 27 32 ) By the terms of General Order No. 34 of 1906, no one but a citizen of the United States is en- titled to receive the additional pay therein pro- vided, and it follows that a payment of it to one not a citizen would be an illegal payment and credit could not be allowed a pajonaster making such payment. The pa>Tnaster should, there- fore, for his own protection, check all such pay- ments made for periods prior to the date on which the man became a citizen. (14 Comp. Dec, 267.) An enlisted man of the Navy who was not a citizen of the United States at the time of his reenlistment, but who was naturalized during his second period of service, is entitled to the additional pay proiided by Executive order of November 27, 1906 (General Order No. 34), fi'om the date of his naturalization, if he other- wise comes within the scope of said order. (14 Comp. Dec, 284; 18 Comp. Dec, 617.) A person of Chinese descent, born in the United States of Chinese parents, is a citizen of the United States within the meaning of Gen- eral Orders Nos. 34 and 62 of the Navy. (18 Comp. Dec, 1026.) A minor residing in this country became a citizen of the United States upon the natural- ization of his stepfather, and being enlisted in the Navy and otherwise qualified is entitled to the additional pay pro\'ided by General Order No. 34 of November 28, 1906. (19 Comp. Dec, 641.) An enlisted man of the Navy who is given a bad-conduct discharge and subsequently re- enlists is not entitled during his enlistment next following such discharge to any increase of pay under the provisions of General Order No. 34 of 1906. (19 Comp. Dec. 768; 20 Comp. Dec, 856.) An enlisted man of the Navy dishonorably discharged pursuant to sentence of court- martial mthin three months preceding the ex- piration of his enlistment, and recommended for reenlistment, is not entitled on reenlistment to any additional pay under General Order No. 34 of 190G. (21 Comp. Dec, 871; see also Comp. Dec, Aug. 31, 1914, 70 MS. Comp. Dec, 931.) Enrolled men transferred from the Naval Reserve Force to the Regular Navy to serve the unexpired term of they: enrollment "shall be entitled to and receive the same pay, rights, privileges, and allowances in all respects as now pro\'ided by existing law for men regu- larly discharged and reenUsted immediately upon the expiration of their full four year en- listment in the Regular Navy." (Act July 11, 1919, 41 Stat., 139.) Under this act, held, that enrolled men of the Naval Reser\'e Force so transferred to the Regular Navy are entitled, from the date the transfer is consummated, to increase of pay for continuous ser\dce and under General Order No. 34 of 1906, as well as to 867 Sec. 1569. Pt. 2. REVISED STATUTES. The Navy. honorable-discharge gratuity. (26 Comp. Dec, 33.) The act of July 11, 1919 (-11 Stat., 141), pro- ■v-irlos that "any onlisled man of the Navy or Marino Corps who has been or may be dis- charged to enable him to accept appointment as a commi.ssionod or warrant officer in the Naval Reserve Force or Marine Corps Reserve, and who reenlists in the Navy or Marine Corps after the termination of his reser\'e service, shall be entitled, in computing serAdce for retirement, to credit for all active reserve serv- ice; and if he reenlists in the Navy or Marine Corps within four or three months, respectively, from the date of the termination of his service as an officer of the reserve, he shall be restored to the grade or rank held by him before being discharged to accept such commission or war- rant, and his ser\'ice in the Regular Na^^ or Marine Corps, including his active service in the Naval Reserve Force or Marine Corps Reserve, shall be regarded as continuous for purposes of continuous-ser\dce pay." Held, that this act preserves the status previously acquired by continuity of serA-ice, which, with- out the pro\dsion, would be lost; but it does not create any right to permanent additions to pav other than those already acquired. (26 Comp. Dec, 565.) Reenlistment pay_ under General Order No. 34, continuous-service pav under the act of August 22, 1912 (noted under sec. 1573, R. S.), an(I honorable-discharge gratuity under the act of August 22, 1912 (noted under sec. 1573, R. S.), are three distinct classifications of pay that should be kept separate and apart in any con- sideration of an enlisted man's respective rights thereto, each being dependent upon conditions peculiar to itself. Accordingly, hfhj, that the pro^-ision of the act of July 11, 1919 (41 Stat., 141), that service performed by the enlisted men described therein "shall be- regarded as continuous for purposes of continuous-ser\ice pay," does not entitle such men to an increase in continuous-service pay and additional pay under article 4427, paragraph 25, Navy Regula- tions, 1913 (Gen. Order No. 34, 1906), imme- diately upon reenlistment; that it does not entitle such men to increase in continuous- service pay and additional pay under General Order No.' 34 of 1906, upon the completion of four years from date of last reenlistment in the Na\y ; that the pay of such men, upon restora- tion, including permanent additions pre\'iously earned by reason of continuity of serxdce, will remain unchanged for the period of their en- listment, except as it may be affected by changes in law or rating; and that such men will not be entitled to honorable-discharge gratuity immediately upon reenlistment or upon the completion of four years' service fi'om date of last reenlistment in the Navy. (26 Comp. Dec, 565. Compare, 25 Comp. Dec, 440, noted below, under "Retired enlisted men.") For the purpose of computing payment of honorable-discharge gratuity, continuous-serv- ice pay, and pay under General Order No. 34 (1906), enlistments in the Naw for " the period of the present war," authorized by section 3 of the act of May 22, 1917 (40 Stat., 84), may be considered to have expired on date of discharge; or in case of an extension of enlistment, as pro\'ided by the act of July 11, 1919 (41 Stat., 139), on date the extension becomes effective. (26 Comp. Dec, 132.) As the word "ser\dce" as used in article 4427 (25), Na\y Regulations, 1913, and General Order No. 34, contemplates the performance of duty or a duty status, and as an enlistment which expires while the enlisted man is in desertion is not a termination of service by ex- Siration of enlistment, an enlisted man of the aAy who deserts, surrenders himself subse- quent to the period of enlistment, and is per- mitted to reenlist, is not entitled to pay under General Order No. 34, during the enlistment following such desertion. (26 Comp. Dec, 250.) The right of a man to pay under General Order No. 34 of 1906 involves the question of his citizenship, which is one of fact which the Comptroller of the Treasury is not required or authorized to decide. (26 Comp. Dec, 399, 401.) The basic pro\isions of all existing laws relat- ing to pay for reenlistment in the Na\y are now in General Order No. 34, Na\y Department, November 28, 1906, promulgating an Executive order of November 27, 1906, and ha\ing the authority of law. General Order No. 34 was carried into the NaAy Regulations of 1913 as article4427, paragraph25. '(26Comp. Dec, 565.) By reason of prior service in the Regular Navy, terminated by discharge at expiration of enlistment, an enrolled member of the Naval Reserve Force acquires a right to pay under General Order No. 34 while on active duty, and is entitled to the further increases provided by that order when he transfers to the Regular Na\y to serve the unexpired portion of his enrollment, as authorized by the act of July 11, 1919. (26 Comp. Dec, 778.) Enlisted men of the Na\y ser\ing over four years under short-term enlistments or exten- sions of enlistments are entitled to pay under General Order No. 34 at the expiration of the first four years of ser\ice, either continuous or dissevered, and at the expiration of each four years of ser\ice thereafter: Provided, That no pre\ious ser\ice terminated for other than expiration of enlistment (unless on rec- ommendation of boards of medical survey) may be counted. (27 Comp. Dec, 506.) The period of ser\ice from which enlisted men of the Navy were honorably discharged in the course of demobilization under the provi- sions of the act of July 11, 1919 (41 Stat., 139), should be regarded as a full statutory period of four years, and entitles the man, if otherwise qualified, to pay under General Order No. 34 (1906) in subsequent enlistments. (28 Comp. Dec, 814.) 10. Changes in rating. — Under article 798, NaAy Regulations, 1896, an enlisted man given an acting appointment by the captain of a ship on a foreign station is entitled to the pay of the rating gi^'en by the appoint- ment until notice is received of the disapproval of such appointment by the Na\y Department, the disapproval being based upon noncom- pliance with article 800 of the Regulations requiring that, as far as practicable, each class of petty officers be recruited from the next 868 The Navy. Pt. 2. REVISED STATUTES. Sec. 1569. lower class, and that they shall be adA^anced but one class at a time. (4 Comp. Dec, 77.) The rate of pay of an enlisted man in the naval ser\dce depends upon the orders estab- lishing his rating, and is not affected by the fact that notice of a change in rating is not communicated to the proper pay officer pur- suant to article 826 of the Navy Regulations of 1896. (4 Comp. Dec, 95.) An enlisted man of the Naiy who, while holding the rating of ship fitter, first class, is appointed acting chief carpenter's mate, is en- titled while ser\T.ng under said appointment only to the pay of an acting chief carpenter's mate, notmtlistanding that it is less than the pay of a ship fitter. (12 Comp. Dec, 346.) Where an acting bandmaster of the Navy, who was not a citizen of the United States, received a permanent appointment as band- master under article 852, Navy Regulations, 1905, after the examination provided by said article, and performed the duties of such office, he is entitled to retain the pay he re- ceived under said appointment, notwithstand- ing that said article required that men to whom such appointments were issued be citizens of the United States. (14 Comp. Dec, 267.) The Navy Regulations, 1900 (art. 948), pro- Added that "apprentices, third class, shall be rated apprentices, second class, immediately before being transferred from the training serv- ice to general service, and shall not again be reduced below that rating while continuing in general serAdce, except by sentence of a court- martial . ' ' Held, that an apprentice of the third class in the Na\y, transferred to the general 8er\dce while said regulation was in force, was entitled to the rating of an apprentice of the second class immediately before such transfer; that the duty enjoined upon the com- manding officer was ministerial and a mere formality; and where the commanding officer neglected to perform such duty until more than five months after the transfer, his neglect could not have the effect to deprive the apprentice of the pay to wliich he was entitled under General Order No. 20 of January 1, 1901; that the regulation and the Executive order fix the man's right to pay, and he should not be made to suffer because the commanding officer neg- lected to perform a ministerial and formal act. (15 Comp. Dec, 459.) When enlisted men of the NaA-y take the required oath and enter upon their duties as NaA^y mail clerks and assistant NaA-y mail clerks, as proAdded in the act of May 27, 1908 (35 Stat., 417), by order of their commanding officer, and are recommended by said officer for designation from the date on which they en- tered upon their duties, which recommenda- tion is subsequently approved by the Secretaiy of the NaA-y and the designation made by the Postmaster General, such enlisted men are en- titled to the additional pay pro\dded for in the act of May 27, 1908, from the date on which they took the oath and entered upon their duties. (16 Comp. Dec, 442.) The pay of a new rating to which an enlisted man of the NaAy is reduced by sentence of summary court-martial becomes his proper pay on the date of the approval of the sentence by the senior officer present. (17 Comp. Dec, 489.) As soon as the new system of ratings proAdded in the act of August 29, 1916 (39 Stat., 572), for the enlisted force of the Hospital Corps shall have l)een established, enlisted men thereof then rated as hospital apprentices, second class, shall be paid only $19 per month, although prior to the passage of that act or the establish- ment of the ratings therein provided they were serAdng as hospital apprentices at $20 per month. (23 Comp. Dec, 231.) The statement by a commanding officer of the NaA'y, over his signature, that a rating of an enlisted man was actually changed on a certain date, is sufficient cAddence to entitle the man to the increase in pay from that date. (26 Comp. Dec, .393.) 11. Comraenceinent of pay. — See note to section 1418, Re\dsed Statutes, under, "When enlistment complete." 12. Leave of absence. — A Navy mail clerk absent from his vessel and undergoing treatment at a hospital on shore, when he can not perform his duties as Na-xy mail clerk, is not entitled to the additional pay. The additional pay of such mail clerks, under the act of May 27, '1908 (35 Stat., 417), is dependent upon the performance of the ser\ices prescribed by said act. (15 Comp. Dec, 548.) An enlisted man of the Navy regularly de- tailed to perform the duties of "ship's tailor" is entitled while on leave to the additional pay provided by General Order No. 186, June 5, 1905, of the NaA^y Department, pro\dded that no one has been detailed to perform his duties as ship's tailor during his absence on leave. (15 Comp. Dec, 894.) Enlisted men of the NaAy on authorized leave are not entitled to the $5 per month additional pay for submarine service authorized by Executive order of January 1, 1901. (19 Comp. Dec, 754.) Enlisted men of the NaA'y properly detailed, under the act of March 3, 1915 (38 Stat., 928), for duty invohing actual flying in aircraft, are entitled to the additional pay pro\ided in that act while on authorized leave of absence -nithin the period of such detail. (22 Comp. Dec, 292.) An ordinary seaman detailed as jack-of-the- dust is entitled while on leave of absence to the additional pay allowed for such detail by Gen- eral Order No. 178 of November 29, 1904. (Comp. Dec, Aug. 17, 1905, 54 S. and A. Memo., 585.) So also a chief petty officer detailed as instructor of apprentice seamen is entitled to additional pay under General Order No. 34 of November 28, 1906, while on leave, if his detail remain unrevoked. (Comp. Dec, Nov. 12, 1910, 117 S. and A. Memo., 1617.) See act of June 5, 1920 (41 Stat., 975, 976), as to furlough fare certificates for travel of dis- abled enlisted men. 13. Forfeiture of pay. — ^The forfeiture in- curred by a deserter under the Army Regula- tions is not a fine which the soldier may be compelled to pay out of any property he pos- sesses, by imprisonment if need be; nor is it, strictly speaking, a punishment; but it relates solely to the soldier's rights under his contract of enlistment, and is a forfeiture of moneys that were due and payable under it in conse- quence of his contract, and still would be if he had not deserted; and for the purpose of de. 869 Sec. 1569. PL 2. REVISED STATUTES The Navy. termiuing what the soldier's rights are, to re- ceive money from the United States under or in consequence of hia contract, the fact of desertion need not be established by the record of a court-martial. As the entiy of desertion on the muster roll may sometimes have been improperly made, and may afterward be can- celed by the War Department on proof that the soldier did not desert, it may happen that the soldier by the cancellation of such an entry becomes entitled to bountv previously withheld from him. (13 Op. Atty.'Gen., 188, 199.) Under a law proAdding that "all forfeitures on account of desertion" should be used for the support of the National Asylum for Dis- abled Volunteer Soldiers, installments of bounty which are not already due and pay- able to a soldier at the time he deserts never become due and payable in case he does not return or is not returned to the service, and therefore are not forfeited in the legal sense of that word. Nor, in case the deserter re- turns or is apprehended and put back into service, are such, installments forfeited on account of desertion, because either the soldier on serving out his term is entitled to receive them, or they never become due and payable by reason of his desertion. But the install- ments and bounty due and payable at the time of desertion are forfeited thereby, in both those cases, and become payable to the board of managers of the National Asylimi for Dis- abled "Volunteer Soldiers. (13 Op. Atty. Gen., 188.) A soldier who had deserted but was restored to duty by order of his department commander without trial, on condition that he make good the time lost (about two months), and who complied with the condition and was honor- ably discharged at the expiration of his term of service, held, entitled to bounty money not\vithstanding his desertion. (U. S. v. Kelly, 15 Wall., 34. Note: This decision related to money accruing subsequent to the desertion, and not to money due and payable at the time of desertion; see U. S. v. Landers, 92 U. S., 77.) The honorable discharge of the deserter was a formal, final judgment, passed by the Government upon the entire military record of the soldier, and an authoritative declara- tion by it that he had left the service in a status of honor; as such it dispensed altogether with the supposed necessity that the soldier must obtain bounty by removal, by order, of the charge of desertion fi'om the rolls, and amounted of itself to the removal of any charge or impediment in the way of his receiving bounty. (U. S. v. Kelly, 15 Wall., 34; com- pare U. S. V. Landers, 92 U. S., 77.) Forfeiture of pay and allowances up to the time of the desertion follows from the condi- tions of the contract of enlistment, which is for faithful service. The contract is an en- tirety; and if service for any portion of the time is criminally omitted, the pay and al- lowances for faithfxil service are not earned. And for the purpose of determining the rights of the soldier to receive pay and allowances for past services, the fact of desertion need not be established by the findings of a court- martial; it is sufficient to justify a A\ithholding of tlie moneys that the fact appears upon the muster rolls of his company. But forfeiture of pay and allowances for future service, as a condition of restoration to duty, can only be imposed by a court-martial. (U. S. v. Land- ers, 92 U. S., 77, 79, explaining U. S. v. Kelly, 15 Wall., 34.) An honorable discharge granted to a soldier who has been restored to duty after desertion, and whose conduct subsequent to his resto- ration to duty entitled him to such honorable discharge, could not relieve him from the con- sequences of the judgment of a military court and entitled him to pay and allowances which that court had adjudged to be forfeited. The forfeiture must first be removed, either by its remission in terms, or by the reversal of the judgment, or the pardon of the President. (U. S. V. Landers, 92 U. S., 77, 80, explaining U. S. V. Kelly, 15 Wall., 34.:) Where a deserter at larg surrenders and is restored to duty \\dthout trial, but the facts clearly establish that he had deserted, he is not entitled to payment of the amount due him at the time of his desertion, not\vithstand- ing that the Bureau of Navigation may have removed the mark of desertion on the alleged ground that it was erroneously entered. (27 Comp. Dec, 4G, citing 14 Comp. Dec, 412.) The pay of enlisted men of the Navy being fixed by the President and sul^ject to regula- tion by him, a regulation providing that en- Hsted men absent from duty without leave shall forfeit all pay while so absent is valid; and a.n enlisted man so absent is not entitled to pay for the period of such absence, although his absence was caused by his arrest by the civil authorities. (9 Comp. Dec, 231.) An enlisted man of the Navy absent from his station and duty without leave is not en- titled to pay for the time so absent, but upon his apprehension and delivery to the naval authorities he is thereafter entitled to pay unless it shall be forfeited by sentence of a court-martial. (15 Comp. Dec, 386.) No deduction is to be made for the naval hospital fund for any peiiod that an enlisted man is absent without leave. (18 Comp. Dec, 724; see sec. 4808, K. S.) The pay of an enlisted man of the Navy held by the civil authorities for trial on a criminal charge should not be paid unless he is acquitted; and if found guilty his pay is then forfeited to the United States fi-om the date of his arrest. (2 Comp. Dec, 584.) Where a carpenter's mate of the Navy was arrested by the civil authorities on a criminal charge and admitted on to bail on his own re- cognizance, and his trial indefinitely post- poned, and it was apparently not the inten- tion of the authorities to further prosecute the case, his pay was not thereby forfeited. (10 Comp. Dec, 490.) When enlisted men of the Navy have been tried and acquitted by coiurt-martial of the charge of desertion, such acquittal is also an acquittal of absence without leave, and the pay department and accounting officers should follow the judgments in such cases and con- sider such enlisted men as being in a pay 870 The Navy. Pt. 2. REVISED STATUTES. Sec. 1569. statiis during the period that they were charged with being in desertion. (16 Comp. Dec, 480.) An enlisted man of the Navy released from the custody of the ci\-il authorities on bail, who reports at his regular station for duty, is not to be deprived of his pay after so reporting simply because, due solely to the fact that he was on bail, no naval duty was assigned him. (22 Comp. Dec, 374.) A soldier who was arrested by the ci\il author- ities on a charge of murder, of which he was con\-icted, is not entitled to pay or allowances after the date of his arrest, although pending his trial he was discharged by reason of the expiration of his term of enlistment. (9 Comp. Dec, 249.) A soldier who claimed that his enlistment in the Army was illegal, and endeavored to se- cure his release by habeas corpus proceedings which were decided against him by the Su- preme Court, held, not entitled to pay and allowances for the time that his litigation was pending in the ci\il courts and no sefvice was being rendered by him to the United States, he ha%ing secured his release by decision of the lower court which was reversed on appeal. (Grimley r. T. S., 32 Ct. Cls., 285.) The pay and allowances of an enlisted man of the Na\y can not be withheld because he may have been engaged in the performance of serv- ice prohibited by law, pro\T.ded that he was not enlisted solely for the performance of such illegal ser\ice. (6 Comp. Dec, 756.) If men are properly enlisted in the naval service, it is not material to the accounting offi- cers whether they are at all times lawfully en- gaged or not. That is a matter regulated by the Na\-y Department. The legality of such ser\'ice can become material to the accounting officers only where the enlistments are made solely for such illegal purpose, and then only in Eassing upon payments made under said en- stments. (6 Comp. Dec, 756.) Absence fi-om duty on account of injury, sickness, or disease resulting from misconduct of an enlisted man shall forfeit his pay for the time of such absence. (See act of Aug. 29, 1916, 39 Stat., 580, as amended by act of July 1, 1918, 40 Stat., 717, noted under sec. 1556, R. S., under "Absence from duty." For other cases, see note to section 1556, Re- vised Statutes, relating to pay of officers. 14. Men transferred to Fleet Naval Re- serve. — Since the transfer of an enlisted man of the Regular Na\'y to the Fleet Naval Reserve at the expiration of enlistment, after 16 years' serA-ice, has the effect of relie\'ing him of all obligation under said contract of enlistment, it is to all intents and purposes a discharge at the expiration of enlistment, so as to entitle him to travel allowance as provided bv the act of June 29, 1906 (34 Stat., 555). (25 Comp. Dec, 609.) A transferred member of the Fleet Naval Re- serve, whose transfer was made after 20 years' ser\-ice in the Regular Na\'y and not at the expiration of enlistment, and who subsequently was discharged from the Fleet Naval Reserve and reenlisted, next day, in the Regular Na\'y, is not entitled to credit for continuous-serA-ice increase of pay, or for the increase under Gen- eral Order No. 34 of 1906. The cases of trans- ferred members are not covered by the pro- \ision in the act of August 29, 1916 (39 Stat., 590), with respect to enrolled members of the Naval Reserve Force who ai'e discharged there- from and reenlist in the Regular NaAy , nor is it covered by 23 Comp. Dec, 535, which related to enlisted men of the NaA-y transferred to the Fleet NaAal Reser^'e at expiration of a period of enlistment and subsequently reenlisting in the Regular Navy. (25 Comp. Dec, 884; see also note to sec. 1573, R. S., as to centinuous- ser^ice pay.) Enlisted men transferred to the Fleet Naval ReserAe after 16 or 20 years' service, whose ratings at the time of transfer entitled them to honorable discharge, and who as reser\-ists are not retained on active duty, are entitled at time of transfer to travel allowance at 5 cents per mile from the place of transfer to their actual bona fide home or residence or place of original muster into the serA-ice, at their option, as proA-ided by act of February 28, 1919 (40 Stat., 1203). (26 Comp. Dec, 636.) For other cases, see note to section 1556, Re- \ised Statutes, under "Naval Reserve Force." 15. Men furloughed without pay. — An enlisted man who has been discharged by purchase or by special order, and who upon such discharge has refunded the cost of cloth- ing outfit, is entitled upon reentry- into the ser\ice on a second enlistment to a new outfit, subject only to the condition that the total net cost of outfits fm'uished anv one man shall not exceed $60. (Act Mar. 3, 1915, 38 Stat., 932.) An enlisted man furloughed without pay, under the act of August 29, 1916 (39 Stat., 580), under the same conditions and in lieu of dis- charge by purchase, and who refunded the cost of clothing outfit issued to him, is entitled upon recall to active duty to the same right to cloth- ing outfit as that proA-ided by the act of March 3, 1915, for men reentering the serA"ice after dis- charge by purchase. (24 Comp. Dec, 191.) The term "unexpired portion of enlistment, " as used in the act of August 29, 1916, with re- spect to the ser-\-ice of an enlisted man after recall from furlough without pay, means the unexpired portion of the enlistment at the date of recall from furlough, and not that remaining when said fiu-lough was granted. (25 Comp. Dec, 231.) An enhsted man of the Na\y furloughed without pay in accordance with the act of August 29, 1916 (39 Stat., 580), resumes in all respects his former status upon being recalled to active senice, and upon discharge at the completion of the unexpired portion of his en- listment is entitled to travel allowance, and upon reenlistment to the honorable-discharge gratuity if othenvise authoilzed. (25 Comp. Dec, 231; see also note to sec. 1573, R. S., as to honorable-discharge gratuity.) An enlisted man of the Navy whose preced- ing period of enlistment expired while he was on furlough without pay, as authorized by act of August 29, 1916 (39 Stat., 580), and who, therefore, in accordance with the practice then prevailing, did not receive an honorable dis- charge upon the expiration of such enlistment, his enlistment ha\-ing been regarded as ter_ minated by furlough and not by expiration 871 Sec. 1560. Pt. 2. REVISED STATUTES. The Navy. held, not entitled to receive the additional pay authorized for holdini^ a petty officer's cer- ficate (art. 4427, i)ar,^ 8, Navy Regs., 1913, C. N. R. 3), or the longe\aty pay pro\-ided in General Order No. 34 of 1906, or the continu- ous-service pay authorized l)y act of August 22, 1912 (37 Stat., 331), amending section 1573, Revised Statutes, all of which payments are ct)nditioned ujton reenlistment after the re- ceipt of an honorable discharge. (25 Comp. Dec, 328.) For other cases, see note to section 1417, Re- \ised Statutes. 16. Men extending enlistment.— An en- listed man of the Na\'>' who has a deposit to his credit, under the act of February 9, 1889 (25 Stat., 657), and who elects to extend his en- listment under the act of August 22, 1912 (37 Stat., 331), may not be repaid such deposit until his discharge from his enlistment, as extended. (19 Comp. Dec, 384.) The first enlistment of a seaman was ex- tended one year, and during extension his rating was changed to gunner's mate, third class; at expiration of enlistment, as extended, he was honorably discharged and reenlisted within foiir months. Held, that on reenlist- ment he was entitled to four months' honorable- discharge gratuity at the rate of pay he was recei\-ing when discharged, wliich included his rating pay as a gunner's mate, third class, and that he was entitled to citizenship reenlistment pay (longevity pay under General Order No. 34 of 1906), and continuous-ser\dce pay, and 10 per cent increase on said total pay. (20 Comp. Dec, 361; see note to sec. 1573, R. S., as to honorable-discharge gratuity and continuous- service pay.) Enlisted men of the Navy who extend their enlistments under the provisions of the act of August 22, 1912 (37 Stat., 331), are not entitled to the travel allowance authorized by the act of June 29, 1906 (34 Stat., 555), at the expira- tion of the four-year period for which they originally enlisted, but are entitled thereto at the time they are discharged at the expiration of the extended period, the reason being that the extension of enlistment is a modification of their original enlistment, the extension thereby becoming a part of their enlistment. (20 Comp, Dec, 805, affirming 20 Comp. Dec, 699; see also, 25 Comp. Dec, 610. But see act of June 4, 1920, sec. 6, noted below, under "Mileage and transportation on discharge.") The travel for which enlisted men of the Navy are entitled to travel allowance on discharge at the expiration of their enlistments as extended, is travel in the United States from place of discharge to place of original enlistment. (20 Comp. Dec, 805.) An enlisted man of the Navy who surren- dered from desertion and was restored to duty without trial, and who after serving a period of probation was allowed to extend his enlistment, is entitled under such extended enlistment to credit for pay for continuous service and under (Jeneral Order No. 34, his status being the same as though he had not been absent during his term of enlistment. (25 Comp. Dec, 920; see note to sec. 1573, R. S., as to continuous-service pay.) The extension of enlistment law granted to enlisted men of the Regular Na\'y the right to continuous-serNdce increase of ])ay and to pay under General Order No. 34 of 1906; and also the right to honorable-discharge gratuity if the period for which the extension was made aggregates four years. (26 Comp. Dec, 33, 34, citing 63 MS. Comp. Dec, 136, and 68 MS. Comp. Dec, 1200.) 17. Retired enlisted men. — See acts of March 3, 1899, section 17 (30 Stat., 1008); June 22, 1906 (34 Stat., 451); March 2, 1907 (.34 Stat., 1217); May 13, 1908 (35 Stat., 128); March 3, 1915 (38 Stat., 941); August 29, 1916 (39 Stat., 591); July 1, 1918 (40 Stat., 719). The provision in the order of the President of June 24, 1902, that "each enlisted man of the Navy shall receive 75 cents per month, in ad- dition to the pay of his rating, for each good- conduct medal, pin, or bar" which he shall have been awarded, applies to enlisted men on the retired list, who are entitled to the full amount of the additional pay provided for therein. (9 Comp. Dec, 164, Oct. 27, 1902.) The retired pay of an enlisted man under the acts of March 3, 1899, and March 2, 1907, was 75 per cent of the pay he was in receipt of at the date of his retirement; and 75 cents per month for each good-conduct medal held by him, and an increase of 10 per cent on the total amount thereof. (Comp. Dec, May 14, 1909, S. and A. Memo. No. 99, p. 1077, citing 9 Comp. Dec, 164; 14 Comp. Dec, 176; and 14 Comp. Dec, 830.) The allowances to which retired enlisted men of the Na\'y are entitled are separate from and in addition to the pay to which they are entitled. The term "pay" used in a special statute providing for the retirement of an en- listed man with the retired "pay" of liis rating does not include allowances. (Comp. Dec, May 14, 1909, 99 S. and A. Memo., 1077.) The benefits of General Order No. 34, of 1906, are limited by its terms to those men who re- enlist on or after its date. An enlisted man who was retired prior to the date of said order is, therefore, not entitled to additional pay thereunder, nor was said order made applicable to him by \'irtue of the provisions in the act of May 13, 1908 (35 Stat., 128), to the effect that "the pay of all active and retired enlisted men of the Navy is hereby increased ten per centum," and that "the pay of all * * * enlisted men of the Navy now on the retired list shall be based on the pay, as herein provided for, of * * * enlisted men of corresponding rank and service on the active list." (15 Comp. Dec, 517.) Enlisted men of the Navy, retired under the provisions of the act of March 2, 1907 (34 Stat., 1217), are entitled on retirement to three- fourths of the pay they were in receipt of at the date of retirement, together with the allowances of $9.50 per month in lieu of rations and cloth- ing, and $6.25 per month in lieu of quarters, fuel, and light. (18 Comp. Dec, 575.) The additional pay authorized for a steward or cook holding a certificate of qualification (G. O. 62, Feb. 7, 1908) is no part of the pay of the rating held by him at the time of retirement, and should not be included in computing his 872 The Navy. Ft. 2. REVISED STATUTES. Sec. 1569. retired pay under the act of March 2, 1907. (Comp. Dec, Apr. 14, 1914, 158 S. and A. Memo., 3038. Compare, 25 Comp. Dec, 424, noted above, under "Mess attendants and cooks.") An enlisted man of the Na^'v retired subse- quent to the act of March 2, 1907(34 Stat., 1217), and thereafter naturalized, is not entitled to be credited to three-fourths of the pay authorized by Executive order of November 27, 1906, in the computation of his retired pay. (20 Comp. Dec, 606; but see, contra, Comp. Dec., Nov. 16, 1920. case of James Quinn, G. M. Ic, A. D. No. 5207, Navy Dept. file 26252-146 : 2.\ A retired enlisted man called into active 8er\ice under the act of August 29, 1916 (39 Stat., 591), and issued a new permanent ap- pointment as chief petty officer, is not entitled to the present pay and aUowances of the rate to which appointed. (24 Comp. Dec, 79.) A retired enlisted man called into active ser\'ice pursuant to the pro^dsion in the act of August 29, 1916 (39 Stat., 591)— that while so employed on active duty such retired enlisted men shall receive ' ' the same pay and allowances they were recei\'ing when placed on the retired list" — is entitled to the present pay of men on the active list of the same rating and of the same length of ser^dce; and is not limited to the identical pay he received pre\'ious to his retire- ment and regardless of subsequent legislation. Where such retired enlisted man was employed in active service on June 1, 1917, he was entitled to the increased pav pro\'ided for enlisted men by the act of May 22, 1917 (40 Stat., 87), which went into effect on June 1, 1917, with reference to all enlisted men in active service on the last- named date. (24 Comp. Dec, 79.) The act of May 22, 1917 (40 Stat., 87), pro- \-iding for increased pay, commencing June 1, 1917, for enlisted men of the Navy in active 8er^'ice during the present war, is not applicable to enlisted men retired since June 1, 1917. (24 Comp. Dec, 116.) The rule is well understood that if the pay of the rank or grade on the active list is changed, it effects a change in the pay of enlisted men on the retired list holding that rank or grade. But this does not apply to exceptional pay or increase of pav for special service. (24 Comp. Dec, 116.) The retired pay of enlisted men should be computed upon their regular ordinary pay, and not include additional pay allowed for excep- tional duty or special services. (Comp. Dec, Apr. 14, 1914, 158 S. and A. Memo., 3038.) Additional pay allowed coxswains by General Order No. 20 of January 1, 1901, should not be included in computing retired pay. (Comp. Dec, May 27, 1914, 1.59 S. and A. Memo., 3073.) By act of July 1, 1918 (40 Stat., 719), it was provided that retired enlisted men recalled into active service shall be eligible for promo- tion and "shall be entitled to the pay and benefits of continuous service of such rank and for such length of time as he is or has been employed in active ser\ice, and when relieved of active service shall retain upon the re- tired list the rank and service held by him at the time of such relief, %rith the pay and allow- ances of such rank on the retired list." Held, that, broadly speaking, "continuous-service'' pay includes any pay or gratuity which is taased upon the element of continuity in the service of enlisted men; so defined, continuous- service pay includes the so-called honorable- discharge gratuity, since the payment of such gratuity is dependent on continuity of service; it also includes additional pay allowed under General Order No. 34 of 1906, as well as con- tinuous-service pav proper allowed by act of August 22, 1912 (noted under sec. 1573, R. S.). Fiu-ther held, that the provision in the act of July 1, 1918, provides in effect for a constructive reenlistment when the enlisted man has served the iinexpired portion of the enlistment in which he was serving when retired. Accord- ingly, retired enlisted men of the Navy who are recalled to active service and who complete a period of service equal to the unexpired term of their enlistment are entitled, when otherwise qualified, to continuous-service pay proper, honorable-discharge gratuity, and pay under General Order No. 34 of 1906, whether the con- structive reenlistment be considered as operat- ing for a term of four- years or for the duration of the existing war. (25 Comp. Dec, 440. Compare, 26 Comp. Dec, 565, noted above, under "Longevity pay, General Order No. 34.") Retired enlisted men of the Navy who are recalled to active duty and who, upon release therefrom, are orderecl to their homes, are not entitled to travel pay under the act of February 28, 1919 (40 Stat., 1203), but only to transporta- tion in kind from their homes to the place to which called for active duty and from such place to their homes, when released from such duty. (26 Comp. Dec, 21.) Retired enlisted men of the Navy called to active duty under the act of July i, 1918 (40 Stat., 719), and reheved therefrom on or subse- quent to July 11, 1919, are entitled to credit for the increase of pay authorized by the act of July 11, 1919 (41 Stat., 140), in computing their pay on the retired Hst. (26 Comp. Dec, 478.) Enlisted men of the Navy who were not on active duty during the period from July 11, 1919, to June 30, 1920, inclusive, are not entitled to credit for the war increase of pay authorized by the act of July 11, 1919 (41 Stat., 140), in computing their pay on the retired list. (27 Comp. Dec, 481.) 18. Men detained after expiration of enlistment. — See notes to sections 1418, 1422, and 1426, Revised Statutes. An enlisted man in the Navy who was ap- pointed as mate and continued to seiwe as such after the expiration of his term of enlistment, without receiving a discharge, is still in the service and entitled to his discharge, and may be permitted to reenlist with the benefit of con- tinuous service under article 839 of the Navy Regulations of 1905. (26 Op. Atty. Gen., 319.) The period of detention beyond the expira- tion of the term of service of an enlisted man of the Navy undergoing treatment in a hospital is to be considered as for the convenience of the Government, and the man is entitled to pay to and including the date of his actual discharge. (26 Comp. Dec, 447, modifying 26 Comp. Dec, 128.) An enlisted man remains in the service until receipt of his discharge, or until such action is 873 Sec. 1569. Pt. 2. REVISED STATUTES. The Navy. taken as \\\\\ render him legally chargeable with notice thereof, notwithstanding the expi- ration of his term of enlistment during his ab- Bence on a furlough granted at his own request. (2 Comp. Dec, 94; 27 Comp. Dee., 784.) The right of a soldier to jjay for service after the expiration of his term of enlistment is not expressly provided for by any statutory pro- vision. The Government has no authority to hold a soldier to service after the expiration of his term of enlistment, except that arising from an exigency of the serv-ice or the delay incident to the muster out of troops; at least in the latter case the soldier is entitled to pay during the period of detention, as an incident to his term of enlistment, and at the rate to which he was entitled at the expiration thereof. 7 Comp. Dec, 391.) A deserter from the Navy, upon his return to duty and assigimient to a hospital for treatment, is entitled to pay computed upon the base pay prescribed by act of ]\lay 18, 1920 (41 Stat., 602), from the date of his return, if after January 1, 1920, to date his enlistment was due to expire, and at the same rate thereafter, to and including the date of his actual discharge. (27 Comp. Dec, 541). Where an enlisted man of the Marine Corps who deserted therefrom in time of peace, and subsecjuently returned to his organization, after the expiration of his enlistment but within two years from the latter date, and was restored to duty without trial, his organization then be- ing in France operating under the Army and subject to Army regulations, held, that such restoration to and acceptance of duty is a con- Btructive reenlistment or extension of enlist- ment, and credit for pay should be allowed from the date of return to military control. (25 Comp. Dec, 881.) A con\icted deserter, restored to duty on probation after expiration of his enlistment in the Na\'y, is entitled to pay for services ren- dered while on probation. (Comp. Dec, Nov. 20, 1908, 93 S. and A. Memo., 896.) An enlisted man remaining in the service xmder an illegal extension of enlistment is en- titled to pay under his original enlistment, notwithstanding that it had previously expired. (Comp. Dec, June 6, 1914, 160 S. and A. Memo., 3255.) An enlisted man of the United States Navy captured and separated from his vessel in con- sequence of an attack by a British vessel in 1807, and held by the British for a period of five years, when he was released and returned to his vessel, held, entitled to be paid his wages by the United States for the total period of five years, although the enlistment in which he was serving at the time of his captm-e was for a period of only one year. (Straughan v. U. S., 1 Ct. Cls., 324.) An enlisted man of the Navy whose enlist- ment expires while he is in confinement serving sentence of a naval court-martial is not enti- tled to be credited with pay after the expira- tion of his enlistment; he is thereafter held in obedience to the sentence of the court-martial, but such imprisonment can not be regarded as holding him in the naval service within the meaning of any law entitling him to receive pay for such services, notv\ithstanding that his discharge is not delivered to him until exjnra- tion of his term of imprisonment. (9 Comp. Dec, 256.) 19. Fraudulent enlistment. — See notes to sections 1419 and 1420, Re\ised Statutes. It is well established that an enlisted man whose enlistment is procured by fraud, unless the Government waives the objection and allows the enlistment to stand, is not entitled to any arrearages of pay or allowances. (14 Comp. Dec, 267, citing 12 Comp. Dec, 326, 328.) Whether a man securing his enlistment by fraud shall be discharged for that reason or re- tained in the service rests in the sound discre- tion of the executive officer, regardless of his indebtedness to the Government. A paymas- ter should, for his own protection, upon the discovery of fraud in an enlistment, suspend payments until it is knowoi from the proper authority whether the enlistment shall be terminated and the man discharged on account of the fraud, or whether he shall, notwithstand- ing, be retained in the service. If he is to be discharged for the fraud, no further payments should be made; if he is to be retained in the service, credit should be given him and pay- ments made as though no fraud had occurred in his enlistment. (14 Comp. Dec, 267.) Pay and allowances of deserter who fraudu- lently reenlists: See note to section 1420, Revised Statutes. Pav'ment of death gratuity in case of deserter who fraudulently enlists and dies v\ithout dis- covery of the fraud: See note to section 1420, Revised Statutes. WTiere an enlisted man convicted of fraudu- lent enlistment and sentenced to imprisonment and dishonorable discharge is restored to duty on probation by order of the Secretaiy of the Navy, execution of the sentence being sus- pended dming the probationary period v\ith a view to its ultimate remission should his con- duct warrant, held, that such man is entitled to pay wiiile serving on probation, the same as if said sentence did not exist; but he is not en- titled to be paid any balance due liim at the time of the sentence unless and until the sentence be unconditionally remitted after the probationary period. (13 Comp. Dec, 723.) 20. Mileage and transportation on dis- charge. — See note to section 1422, Revised Statutes; notes above, under ''Retired enlisted men," "Men furloughed without pay," "Men extending enlistments," and "Men transferred to Fleet Naval Reserve"; note below, under "Waiver of pay or allowances " ; note to section 1556, Revised Statutes, under "Naval Reserve Force," and act of March 3, 1901 (31 Stat., 1030); see also act of June 3, 1916, section 126 (39 Stat., 217), as amended and reenacted by act of February 28, 1919, section 3 (40 Stat., 1203), which is the general law providing for travel allowance on discharge. WTiere, by inadvertence, an enlisted man of the Navy, on his application therefor, was not furnished transportation to his home on dis- charge on medical survey, for which provision was made by the appropriation act of March 3, 1901 (31 Stat., 1030), and he paid his own fare, he is entitled to reimbursement therefor not to exceed the cost to the general public. (8 Comp. Dec, 377.) 874 The Navy. PL 2. REVISED STATUTES. Sec. 1660. An enlisted man of the Navy whose home is in Porto Rico is a resident of the United States, mthin the meanins; of the pro\T.sion in the act of March 3, 1903 (32 Stat., 1178), for the transpor- tation to their homes of enlisted men of the Navy on discharge from the ser\-ice. (11 Comp. Dec, 336.) An enlisted man of the Na\'y who reenlisted upon his discharge on account of expiration of enlistment, and did not perform actual travel between the place of his discharge and the place of his enlistment, is entitled imder the act of June 29, 1906 (34 Stat., 555), to travel allowance at the rate of four cents per mile for travel in the United States between said points. (13 Comp. Dec, 50.) An enlisted man who reenlisted immediately on the expiration of a prior enlistment does not become entitled, under the act of June 29, 1906 (34 Stat., 555), on his discharge from such re- enlistment, to travel allowance to the place of liis preceding enlistment. (13 Comp. Dec, 526.) The travel allowance for travel in the United States to which enlisted men of the Navy are entitled under the_ act of June 29, 1906 (34 Stat., 555), when discharged at a foreign port, should be computed from the nearest regular port of arrival in the continental limits of the United States to the place of enlistment. (13 Comp. Dec, 689.) The act of March 3, 1909 (35 Stat., 755), gives the right to enlisted men of the Navy, when discharged on medical surv^ey, to transporta- tion to their homes at Government expense; but such right must be availed of at the time of discharge or Avithin a reasonable time there- after. (16 Comp. Dec, 555.) The place of discharge from which travel allowance of an enlisted man is computed under the act of June 29, 1906 (34 Stat., 555), is the place at which the discharge was delivered and received by him, pro\dded he is on duty at that place, and not necessarily the place of its issu- ance. (19 Comp. Dec, 565.) Travel from Alaska to the State of Washing- ton is "travel in the United States," Avithin the meaning of the authorization for the pay- ment of a travel allowance, under the act of June 29, 1906 (34 Stat., 555). (22 Comp. Dec, 183.) Where a man presented himself at a certain place for enlistment, and there took the in- itial steps toward entering the ser\dce, he is to be regarded, with reference to travel al- lowance on discharge, as haAT.ng been enlisted at that place, although for the convenience of the Goveriunent he was transported to another place before executing the formal contract of enlistment and taking the oath of allegiance. (23 Comp. Dec, 248.) The statement or affidavit of an enlisted man as to his actual bona fide home or res- idence would not be sufficient evidence in all cases upon which to decide the question of the amount of travel pay to which he is entitled under the act of February 28, 1919 (40 Stat., 1203). No general rule may be laid down for the determination of the place to which travel pay should be allowed, but each case should be decided upon its merits. (25 Comp. Dec, 792.) Whether or not an enlisted man intends to make the travel to the place declared to be his "actual bona fide home or residence," to which he is paid travel pay on discharge, as provided by the act of February 28, 1919 (40 Stat., 1203), is immaterial, so far as pay- ment is concerned. (25 Comp. Dec, 792.) Enlisted men who nave been honorably discharged since November 11, 1918, should be paid by disbursing officers as provided in the act of February 28, 1919 (40 Stat., 1203), travel pay at 5 cents per mile fi'om the place of discharge to the place of original muster into the service, and if the place claimed as actual bona fide home or residence be at a greater distance the enlisted man may present his claim for the difference between that amount and the amount paid to the proper auditor, by whom the eNddence as to his home or residence may be considered and the amount found due mav be certified for pajonent. (25 Comp. Dec!, 792.) Under the act of Februaiy 28, 1919 (40 Stat., 1203), an enlisted man whose bona fide home or residence is in the interior of a foreign country is entitled, in addition to the allow- ance for necessary travel in the United States, to be furnished transportation and subsistence for the sea travel involved, and 5 cents per mile from the nearest port in the foreign coun- try to his home or residence therein. (25 Comp. Dec, 950.) Where enlisted men are discharged under an agreement to reenlist they are not entitled to travel allowance at the rate of 5 cents per mile provided by the act of Februaiy 28, 1919 (40 Stat., 1203). (26 Comp. Dec, 21.) Any enlisted man discharged from any branch of the naval service for the purpose of reenlisting in the Navy or Marine Corps, or who shall extend his enlistment therein, shall be entitled to travel pay as authorized by act of Februarv 28, 1919" (40 Stat., 1203). (Act June 4, 1920, sec 6, 41 Stat., 836.) The act of June 4, 1920, section 6 (41 Stat., 836), applies only to men who were in the ser\dce on November 11, 1918. (27 Comp. Dec, 305; 27 Comp. Dec, 32.) The words "honorably discharged" which are used in the act of February 28, 1919 (40 Stat., 1203), as a condition precedent to the allowance of mileage to enlisted men of the Navy, are not used in the technical sense which they have acquired in the NaAy, but are used in the same broad sense with ref- erence to the Navy that they have with ref- erence to the Army, thus including all dis- charges under which the holder may be re- garded by the War and Na\y Departments and military men of the branch in question as leaAdng the service in an honorable manner. (File 9209-114, Mar. 11, 1919; C. M. O. 114, 1919, p. 18; file 9209-114:45, Feb. 10, 1920.) An enlisted man who is not dishonorably discharged or discharged without honor, _ but who is discharged under honorable conditions, although the word "honorably" is omitted fi-om the discharge paper may be considered to be honorably discharged within the meaning of the act of February 28, 1919. pro\-iding for travel pav. (25 Comp. Dec, 792; see also 25 Comp. Dec, 771, and 25 Comp. Dec, 930.) 54641°— 22- -56 875 Sec. 1569. PL 2. REVISED STATUTES. The Navy. The act of February 28, 1919 (40 Stat., 1203), provides for furnishing an enlisted man, honor- ably discharged from the Army, Navy, or Marine Corps, with mileage at the rate of 5 cents per mile from the place of his discharge to his "actual bona fide home or residence, or original muster into the service, at his option/' and makes similar provision for furnishing mileage to reservists "honorably released from active service." Held, that the word "home" and "residence" are not used s^-nonjTnously in this statute; that the man's actual bona fide home ^vithin the mean- ing of the statute is what is commonly known as his legal residence or domicile, and may be different from his actual resident, to which he may at his option claim mileage; that at the time of his enlistment in the Navy, a man may have been engaged in business and ac- tually resided at a place other than his home, domicile, or legal residence. In such case, under the statute, he may. at his option, claim mileage to the place of his actual res- idence or former emplojinent, or to his home or legal residence. However, to constitute his home or legal residence at a place different from that where he actually resided at the time of enlistment, it must appear that the man did actually reside at some time at the place to which he claims mileage, and if he did not actually reside at such place at the time of his enlistment, it must have been his bona fide home at some time in the past and he must have retained ever since the intention of returning thereto for the purpose of making same his permanent abode. (Kle 9209-114:4, Apr. 5, 1919; C. M. O. 186, 1919, p. 40.) A man whose bona fide home waa in Bates- burg, S. C, was employed at Winston-Salem, N. C., and enrolled in the Naval Eeserve Force at Columbia, S. C. He was honorably released from active duty at Charleston, S. C. Held, that there are three places to which the man in this case is entitled, at his option to claim mileage, \dz., first, his actual bona fide home, which is stated to be Batesburg, S. C; second, his actual, bona fide residence at the time of enrollment, which appears upon the facts stated to have been Winston-Salem, N. C. ; and third, his place of "original muster into the ser^dce, " being in this case place of enrollment which is stated to be Charleston, S. C. (File 9209-114:4, Apr. 5, 1919; C. M. 0. 186, 1919, p. 40.) The words of the statute, allowing mileage to be claimed to place of "original muster into the service, " refer to the place shown by the rec- ords as the man's place of enlistment or enroll- ment under his current contract. (File 9209- 114:4, Apr. 5, 1919; CM. O. 186, 1919, p. 40.) The act of February 28, 1919 (40 Stat., 1203). is permanent legislation, superseding prior laws for payment of travel allowances on dis- charge from the Army and Navy. (File 9209- 114, Mar. 11, 1919; C. M. O. 114, 1919, p. 18; file 9209-114:45, Feb. 10, 1920.) TheactofJuly 11, 1919 (41 Stat., 139), author- izing the issuance of honorable discharges and the payment of mileage in certain cases of en- listed men who have served in the war with the German Government, did not repeal the prior permanent law of February 28, 1919 (40 Stat., 1203), or restrict the scope of said prior law. (File 9209-114:4-5, Feb. 10, 1920.) Travel allowance on discharge should be paid to enlisted men of the Navy, under the act of February 28, 1919 (40 Stat., 1203), irre- spective of their indebtedness to the Govern- ment at the time of discharge. (File 9209- 114:5, Apr. 11, 1919, citing 18 Comp. Dec, 621 and 8 Comp. Dec, 624.) 21. Clothing bounty on enlistment.— By act of March 1, 1889 (25 Stat., 781), it was pro\-ided that "in order to encourage the en- listment of boys as apprenctices in the United States Navy, the Secretary of the Navy is hereby authorized to furnish as a bounty to each of said apprentices after his enlistment, and wHQn first received on board of a training ship, an outfit of clothing not to exceed in value the sum of $45. " The language of this statute, both as to the classes of persons included and the value of the clothing outfit, was broadened from time to time by subsequent appropria- tions for the naval ser\-ice, until proA-ision is now annually made for furnishing "outfits for all enlisted men and apprentice seamen of the Na\'y on first enlistment, at not to exceed §100 each." (See, e. g., acts of July 11, 1919, 41 Stat., 135, and June 4, 1920, 41 Stat., 815.) By act of March 3, 1915 (38 Stat., 932), it was pro\ide(i ' ' that hereafter the Secretary of the Na\'y is authorized to issue a clothing outfit to all enlisted men serving in their second en- listment who failed to receive an outfit of the value authorized by law on their first enlist- ment, or who, ha^dng received such outfit, were required to refund its value on account of discharge prior to expiration of enlistment: Provided further, That the net cost to the Gov- ernment of clothing outfits furnished any one enlisted man shall not exceed S60. " By act of June 29, 1906 (34 Stat., 556), it was pro\T-ded "that hereafter the Secretary of the NaAy may, in his discretion, require the whole or a part of the cost of outfits allowed upon en- listment to be refunded in cases where men are discharged during the first six months of enlist- ment for any cause other than disability in- curred in line of duty. " By act of March 2, 1907 (U Stat., 1176), it was pro%T.ded ' ' that the Secretary of the Na\'y may, in his discretion, require the whole or a part of the bounty allowed upon enlistment to be refunded in cases where men are discharged during the first year of enlistment by request for inaptitude, as undesirable, or for disability not incurred in line of duty. " The whole purpose of the act of March 1, 1889 (25 Stat., 781), pro\-iding clothing bounty on enlistment, was to encourage the enlistment of boys as apprentices in the United States Na\'y; the Secretary of the Na\'y has no discre- tion to furnish bounty in one case and decline to furnish it in another. (25 Op. Atty. Gen., 270.) Regulations of the Secretarj^ of the Na^-y, requiring refund of the clothing bounty, or any portion thereof, in case an apprentice is dis- charged ^\•ithin a year after his enlistment for disability not incurred in line of duty, are inconsistent with law and void. (25 Op. Atty Gen., 270. Note: This opinion was rendered 876 The Navy. Pt. 2. REVISED STATUTES. Sec. 1569. prior to the statutory enactments of 1906 and 1907, above quoted, with respect to refund of clothing outfit.) An enlistment in the Navy for temporary ser^dce is not the first enlistment within the meaning of the act of March 1, 1889 (25 Stat., 781), and the naval appropriation acts pro\'id- ing for the giving of outfits of clothing as a bounty on first enlistment of all enlisted men and apprentice seamen of the Navy. (19 Comp. Dec, 587.) The promulgation of a Navy regulation to the effect that checkages of cost of clothing outfit furnished to any enlisted man of the Navy on first enlistment shall be made against his ac- count if discharged within the first six months of such enlistment does not preclude the Sec- retary of the Navy from the exercise of the dis- cretion conferred on him by the act of June 29, 1906 (34 Stat., 556), in each case coming within such statute. (19 Comj). Dec, 741.) An enlisted man who is given a bad-conduct discharge and subsequently reenlists is not entitled to receive a clothing outfit as of a first enlistment. (20 Comp. Dec, 856. This de- cision was prior to the act of Mar. 3, 1915, above quoted, authorizing clothing outfits on second enlistment in certain cases.) For other cases, see notes above, under ' ' Pay of insular force," and "Men furloughed mth- out pay." 22. Deposit of savings. — See note above, vmder ''Men extending enlistments." The act of February 9, 1889 (25 Stat., 657), "to provide for the deposit of the savings of seamen of the United States Navy, " does not extend to enlisted men of the Marine Corps. (19 0p. Atty. Gen., 616.) Pa\Tnasters of the Navy may receive from enlisted men or petty officers for deposit, under the act of February 9, 1889 (25 Stat., 657), ac- cmnulated savings of any amount, pro-vided they represent the earnings of such a person as an enlisted man or petty officer in the United States Navy, notwithstanding that they may include accumulated savings from previous terms of enlistment. (21 Op. Atty. Gen., 498.) The act of February 9, 1889 (25 Stat., 657), providing for deposits of savings of enlisted men of the Navy and exempting such deposits from liability for their debts, does not apply to debts due the Government, and such debts should be set-off against said deposits. (16 Comp. Dec, 566.) When it appears that an enlisted man of the Navy has been dishonorably discharged after serving a term of imprisonment for desertion, that at the time of his discharge the fact that there was due him a sum deposited was inad- vertently overlooked, and that upon discharge he was fiu-nished, under authority of the acts of February 16, 1909 (35 Stat., 622), and March 3, 1909 (35 Stat., 756), a cash gratuity and trans- portation, the amount of such gi-atuity, trans- portation, and any other indebtedness due the Government at the time of his discharge should be set-off against the sum deposited to his credit. (16 Comp. Dec, 566.) Enlisted men of the Navy temporarily war- ranted or commissioned under the act of May 22, 1917 (40 Stat., 84), being thereby, during the continuance of such appointment, discharged from service as enlisted men and entitled to receive all pay and allowances due them as such, may legally be paid the moneys which they have on deposit at the time of being war- ranted or commissioned. (24 Comp. Dec, 179; for other cases, see note to sec. 1409, R. S., under "Deposit accounts of mates and warrant officers," note to sec. 1417, R. S., under "En- listed men furloughed mthout pay," and note above, under "Men transferred to Fleet Naval Reserve.") Members of the Naval Reserve Force when released from active duty should be repaid deposits with interest thereon. (Comp. Dec, July 3, 1917, 197 S. and A. Memo., 4302.) 23. Waiver of pay or allowances. — See note to section 1422, Revised Statutes, under "Transportation may be waived," and note to same section under "Additional pay can not be waived;" and see cases noted under section 1556, Re^^sed Statutes, under "Waiver of pay." An enlisted man of the Navy who, in con- sideration of his being allowed to remain on his vessel, then about to proceed to Asiatic waters, gives a waiver of all claim to transportation home should he refuse to reenlist and be dis- charged in a foreign port, can not maintain an action for the value of such transportation. (Hunt V. U. S., 38 Ct. Cls.,_ 135.) Power to discharge a soldier upon the latter's request is a discretion vested in the President and exercised by him through the Secretary of War. It is essential to the due exercise of this discretion that he have power to exercise it upon conditions prescribed by himself; and this power the judiciary does not desire to question or curtail. Accordingly, held, that where the Secretary of War authorized the dis- charge of an enlisted man who had unsuccess- fully instituted proceedings in the civil courts to have his enlistment canceled, and as a condi- tion to such discharge required that the man make good all indebtedness due by him to the United States; and the man accepted the terms of the release offered, paid what the Govern- ment claimed of him, and left the service; there was an implied agreement on the part of the soldier that he would assert no claim for compensation against the United States; he waived some supposed rights in order to secure other and substantial advantages himself; and he was not entitled thereafter to pay or allow^- ances from the United States for the time that his litigation was pending in the civil courts and he rendered no service to the Government. (Grimley v. U. S., 32 Ct. Cls., 285.) An apprentice of the Navy, having been transferred from one vessel to another, upon his request and upon his waiver of his right, on discharge in a foreign port, to transportation to the United States, he is not entitled to reim- bursement of the cost of such transportation procured by himself. (9 Comp. Dec, 5.) 24. Sixty-dollar bonus on discharge. — Under the act of February 24, 1919, section 1406 (40 Stat., 1151), authorizing payment of $60 to men discharged under honorable condi- tions, and who served in the military or naval forces of the United States during the World War, held, that the separation from the service of enlisted men by discharge should in all cases be considered as ' ' under honorable conditions,'' 877 Sec. 1571. I't. J. REVISED STATUTES. The Na^/y. except when the certificate or order of discharge recites facts prechiding the presumption of honoral)le conditions. (25 Comp. Dec, 771.) I'ndcr section I4()(j of the act of I'^ebruary 24, 1919 (40 Stat., 1151), the discharge contem- plated is one which effects a separation from the service, and not a discharge given in the regular course of procediu'e, solely for the pur- pose of enal)ling the person to reenter the serv- ice in another branch or subdiiision therefo. (25 Comp. Dec., 790.) The aforesaid bonus can not be paid on the date an enlistment is due to expire, in cases where the enlisted man has agi'eed to extend his enlistment (25 Comp. Dec, 986); but may be paid on the discharge of such man after the expiration of such extension. (26 Comp. Dec, 138.) The bonus may be paid to enlisted men who voluntarily reenlist after discharge, but not where the discharge is conditioned upon reen- listment. (25 Comp. Dec, 930.) And it can not be paid to men transferred from the Na\'al Reserve Force to the Regular Navy, to serve the unexpired term of their enrollment, pur- suant to act of July 11, 1919 (41 Stat., 139). (26 Comp. Dec, 33.) Any enlisted man discharged from any Ijranch of the naval service for the purpose of reenlisting in the Navy or Marine Corps, or who shall extend his enlistment therein, shall be entitled to the payment of bonus authorized by act of February 24, 1919, section 1406. (Act June 4, 1920, sec. 6, 41 Stat., 836.) The act of June 4, 1920, section 6, above quoted, applies only to persons who were in the service on November 11, 1918. (27 Comp. Dec, 305; 27 Comp. Dec, 32.) 25. Attachment of pay by creditors. — See Buchanan v. Alexander (4 How., 19), noted under section 1430, Revised Statutes. 26. Allotments of pay. — See sections 1430 and 1576, Revised Statutes, and notes thereto. Sec. 1570. [Additional pay for serving as firemen.] Every seaman, lands- man, or marine who performs the duty of a fireman on board any vessel of war shall be entitled to receive, in addition to his compensation as seaman, lands- man, or marine, a compensation at the rate of 33 cents a day for the time he is employed as fu'eman. three cents a day for the time he is employed as fireman or coal-heaver." — (1 Mar., 1869, c. 48, s. 2, V. 15, p. 280.) Applicable to insular force. — ^Members of the insular force are entitled to the extra pay pro\'ided by section 1570, Re\ised Statutes, while performing the duty of a fireman on board a vessel of war of the United States. (Comp. Dec, Aug. 13, 1910, 114 S. and A. Memo., 1546; see note to sec. 1569, R. S.) This section -was expressly amended and reenacted to read as above by act of March 29, 1918 (40 Stat., 499). As originally enacted, it read as follows: "Sec. 1570. Every seaman, ordinary seaman, or landsman who performs the duty of a fireman or coal-heaver on board of any vessel of war shall be entitled to receive, in addition to his compensation as seaman, ordinary seaman, or landsman, a compensation at the rate of thirty- Sec. 1571. [Sea service.] No service shall be regarded as sea service except such as shall be performed at sea, under the orders of a Department and in vessels employed by authority of law. — (1 June, 1860, c. 67, s. 3, v. 12, p. 27.) Additional pay for sea duty: See act of May 13, 1908 (35 Stat., 128). Section 1571 not repealed. — The Navy personnel act of March 3, 1899, section 13 (30 Stat., 1007), which provided that officers of the Navy shall receive the same pay and allow- ances as officers of corresponding rank in the Army, did not repeal or modify Revised Stat- utes, section 1571, defining sea service. (Ryan v. U. S.,38Ct. Cls., 143.) There is nothing in the Navy personnel act inconsistent with or repealing Revised Stat- utes, section 1571. (U. S. v. Thomas, 195 U. S.,418.) Orders of Secretary of the Navy as to what constitutes sea service. — The author- ity of the head of an executive department to issue orders and regulations luider the direction of the President, to have the force of law, is subject to the condition that they conflict with no act of Congress; and an order of the Secre- tary of the Navy that a ser\'ice shall not be a sea service which Congress has directed shall be a sea service is invalid. (U. S. v. Symonds, 120 U. S., 46.) Congress certainly did not intend to confer authority upon the Secretary of the Navy to diminish an officer's compensation as estab- lished by law, by declaring that to be shore service which was in fact sea service; or to increase his compensation by declaring that to be sea service which was in fact shore service. (U. S. V. Symonds, 120 U. S., 46.) The statute does not confer upon the Secre- tary of the Navy, acting alone or by direction of the President, the power to declare a particu- lar service to be shore service if in fact it was performed by the officer "when at sea," imder the orders of the Department, and on a vessel employed with authority of law. (U. S. v. Symonds, 120 U. S., 46; U. S. v. Bishop, 120 U.S., 51.) Services are to be deemed services performed at sea, not because the Secretary of the Navy has announced that the Department will so regard them, but because they are in fact services performed at sea and not on shore. (U. S. V. Symonds, 120 U. S., 46; U. S. v. Bishop, 120U. S., 51.) The Navy Department has no power to dis- regard the provisions of Revised Statutes, sec- tions 1556 and 1571, and either deprive an 878 The Navy. PL 2. REVISED STATUTES. Sec. 1571. officer of sea pay by assigning him to a duty mistakenly qualified as shore duty but which is in law sea duty; or to entitle him to receive sea pay by assigning him to duty which is essentially shore duty and mistakenly qualify- ing it as sea duty. (tl. S. v. Engard, 196 U. S., 511.) The Secretary of the Navy can not arbitra- rily change, by an order, the character of the duty to be performed by a naval officer; but the fact that he designates a mixed duty as shore duty is an indication of the construction which he places upon it. (McGowan v. U. S., 36 Ct. Cls., 63.) The burden of proof rests on an officer seeking sea pay to disclose the character of the ser\-ice rendered, especially where the order assigning him to duty designates it as shore duty. (Cor- wine V. U. S., 24 Ct. (Is., 104.) When a naval officer on sea duty was assigned to shore duty, a modification of the order, after the ser\ice was performed, by inserting the words "for temporary duty," and the certificate of the department that the omission of the word "temporary" was a clerical error, does not confer a legal right to sea pay on the officer. The Navy Department has not power to fix the character of the service by the tenns of its order. The character of the ser\ice is a ques- tion of fact. (Doyle v. V. S., 46 Ct. Cls., 181, distinguishing Mueller v._ U. S., 41 Ct. Cls., 240, which held that ratification by the Secretaiy of War of an oral order was valid.) Vessels in bays, inlets, or other arms of the sea. — The sea pay given to officers of the Navy by Revised Statutes, 1.556, may be earned by services performed under orders of the Navy Department in a vessel employed by authority of law in active ser^^.ce in bays, inlets, roadsteads, or other anns of the sea, under the general restrictions, regulations, and requirements that are incident or peculiar to service on the high seas. (U. S. v. Symonds, 120 U. S., 46.) Under the third section of the act of June 1, 1860 (now sec. 1571, R. S.), hdd, that the words "at sea" are not to be construed literally, as requiring that the vessel must be actually at sea; but that they may properly include an officer who, upon being ordered to duty at sea, reports himself, in obedience to his orders, at the place designated, even though the vessel be Ijing in port and not actually out at sea. (10 Op. Atty. Gen., 191.) Trips made down the river, under orders for a sea voyage, and up the river on the return of a vessel from sea, are sea service. (McRitchie V. U. S., 23 Ct. Cls., 23.) A naval vessel always afloat on tide water, frequently ordered to sea, at all times ready to obey such orders, the officers and crew messing and sleeping on board and maintaining the regulations and discipline of a man-of-war at sea, is in sea service mthin the intent of the Re\'ised Statutes, section 1556. (McRitchie v. U. S., 23 Ct. Cls., 23.) For a naval vessel to come within the phrase "at sea," it is not necessary that she be upon the high seas; it is enough if she be water borne, even at anchor, or tied to a dock. (Wyckoff v. V. S., 34 Ct. Cls., 288.) Ser\dce performed on board a vessel of the United States, by order of the Secretary of the Navy, in which the officer is obliged to occupy a room, pay mess bills, etc., as if actually at sea, entitles him to sea pay. (Hannum t.U.S., 36 Ct. Cls., 99.) The fact that an officer assigned to duty is to take charge of the machinery of another vessel, and that the vessels were at a navy yard, does not render the ser\'ice shore duty. ('Hannimi v. U. S., 36 Ct. Cls., 99.) Training ship at anchor and not in com- mission. — It is of no consequence that a naval vessel was, during the period for which sea pay is claimed, in such condition that she could not be safely taken out to sea beyond the mainland. She was a training ship, anchored in Narragansett Bay, during the whole time covered by the claim, and was subject to such regulations as would have been enforced had she been put in order and used for purposes of cruising or as a practice ship at sea. Within the meaning of the law an officer performing his duties as executive officer of the vessel was "at sea' '; not\vithstanding that, by order of the Secretary of the Naw, it was announced that said vessel "will not be considered in commis- sion for sea service." (U. S. v, Symonds, 120 U. S.,46.) Receiving ship at anchor and not in commission. — Service, under an order of the Secretary of the Navy, by an officer of the Navy as executive officer of a receiving ship, at anchor in port at a navy yard and not in commission for sea service, entitles him to re- ceive pay for sea service. The facts in this case disclose that the vessel has been stationed and anchored at the same navy yard and in the same place for over 12 years; that it has been used as a naval recruiting station ; that there is a roof built over the deck; that the ship is con- nected and communicates -nith shore by a rope; that steam is used only for heating purposes and pumps; that all the anchors have never been taken up at the same time; that she was not in a safe condition for cruising; that the duties performed by the executive officer of the vessel were similar to those of executive officers on cruising ships. (U. S. v. Strong, 125 U. S., 656.) Receiving ship condemned and stricken from Navy Register. — An officer is entitled to sea pay when ordered to duty on board a vessel used as a receiving ship, notwithstanding that such vessel has been condemned by a board as unfit for a cruiser, and its name stricken from the list of ships in the Navy Register. The fact nevertheless appears that the said vessel is subject to the usual naval routine and put to kindred uses, and that her officers are subject to the same rules as before she was con- demned. Wliere officers are charged with the responsibilities and duties of officers on sea duty, the emoluments follow the responsibili- ties' and duties. (Pierce i'. U. S., 33 Ct. Cls., 294.) Vessel having no cre'wr but civiHan laborers. — It is sufficient to entitle an officer to sea pay that the vessel on which he is, is em- ployed by authority of law; she need not be in commission or engaged in navigation; her crew 879 Sec. 1571. PL 2. REVISED STATUTES. The Navy. need not be seamen, but may be a small force of civilian laborers from a dockyard. (Wyckoff V. U. S., 34 Vt. C\8., 2S8.} Vessel in reserve with reduced comple- ment.— It is not the location of a ship, but the condition w-ith reference to the sea, qualified by the further condition of an officer's being ''subjected to such restrictions, regulations, and requirements as are incident to service at sea," vrhich determines his right to sea pay. Accordingly, held, that a pa>^naster ordered to a designated station, "for duty on board the Ajax and the other monitors off that place," his orders designating the duty as shore duty, is not entitled to sea pay, the said ships not being in any designated service, but hdng in port, held in reserve for sea service and reduced in complement. (Corwine v. U. S., 24 Ct. Cls., 104.) A ship of war afloat, manned, in a serviceable condition, and able to proceed to sea, is in eer\-ice, though she may need more men and stores to make her sea service effective, and although she may be lying in port, held in reserve for sea ser\dce and reduced in comple- ment. An officer on such a vessel is in sea service if he is subjected to the restrictions, regulations, and requirements which are inci- dent to service at sea. (Aulick v. U. S., 27 Ct. Cls., 109, distinguishing Corwine v. U. S., 24 Ct. Cls., 104, in that, in the latter case, the officer failed to show that he was subjected to the restrictions, regulations, and requirements incident to sea service.) Vessel loaned to State as school ship. — A lieutenant in the Navy assigned, by order of the Secretary of the Navy, to duty as executive officer of a vessel of the United States, furnished by the Secretary to the State of New York as a school ship, is entitled to sea pay as well wliile the vessel is attached to a wharf in the harbor of New York as while she is on a cruise, and although tliis service is called, in the Secretary's order for the officer's detail, "employment on shore duty," and notwithstanding the officer is receiving pay from the State as instructor in its nautical school upon the vessel. (U. S. v. Bamette, 165U. S.,174.) Duty on shore in corm^ection with ves- sels. — A naval paymaster on shore duty at a navy yard is not entitled to pay for sea duty, though required by the Secretary of the Navy, in addition to his regular duties, to take charge of the accounts of certain vessels temporarily at anchor off the yard and in conamission for sea service. (Carpenter v. V. S., 15 Ct. Cls., 247.) Duty as lighthouse inspector. — An officer of the Navy assigned to duty as a lighthouse inspector, under Revised Statutes, section 4671, and ordered to inspect the light stations in his district, is not entitled to sea pay under section 1571, Revised Statutes, while making his tour of inspection, though it be by water and in- volve going to sea. To be entitled to sea pay under section 1571, Rexised Statutes, an officer must be afloat and under orders to perform sea senice. (Schoonmaker v. U. S., 19 Ct. Cls., 170.) Oflacer at sea, suspended from duty. — A paymaster at sea, but suspended fi'om duty pending an investigation of his accounts, is not rendering sea service within the intent of sec tion 1571, Rexised Statutes, and is entitled only to waiting-orders pay. While in attend- ance before the court-martial, he is entitled to shore-duty pay; after his court-martial, awaiting the re\iew of the court's proceedings by the President, he is entitled to waiting-orders pay. (Sullivan v. U. S., 32 Ct. Cls., 402^ It is not the mere being at sea which entitles an officer to sea pay, but it is his being at sea in such a legal condition as entitles him to the pay incident to that condition. In this case the officer was at sea, in that he was on board a receiving ship under the order of the depart- ment, but he was not at sea within the meaning of the law entitling him to sea pay. He was, by his own fault, without duty and in the dis- charge of no functions; so far as public and efficient services were concerned, ne had no participation in them, and would have been guilty of a further offense if he had attempted to exercise any of his powers as an officer. (Sullivan v. U. S., 32 Ct. Cls., 402.) Distinction between "rendering service at sea" and being in "sea service."— There is a distinction between rendering service and being in service; an officer may be in sea service though not rendering service at sea. (Aulick V. U. S., 27 Ct. Cls., 109.) An officer sleeping in his berth is not render- ing service, but is nevertheless in service; an officer on shore leave for a few hours while his vessel is in a foreign port is in sea serAice, though not rendering ser\ice; and sea pay does not stop because the officer chances for the moment to be on dry land. And so it is with a vessel. Ships of war, in time of peace, are for the gi-eater part of the time in a condition of idleness. They sail somewhere and do nothing; they sail somewhere else, and again do nothing; they return home, and await orders. A ship of war may pass her entire hf e in a condition of readi- ness to serve, but of never serving. (Aulick v. V. S., 27 Ct. Cls., 109.) Vessel on trial trip but not accepted. — Where a vessel is on her trial trip prior to ac- ceptance, and still within the possession and control of the builders, the United^ States, how- ever, having, by the payment of installments, acquired an interest equal to 49 out of 50 parts of the vessel, she must be regarded as practi- cally the oroperty of the Government. (Wil- Hamst'. U. S., 47 Ct. Cls., 186.) OflB.cer traveling on vessel as passen- ger. — Section 1571 does not admit of the con- struction that a steamer upon which a naval officer takes passage imder orders of the depart- ment thereby becomes a "vessel employed by authority of law." A person who takes pas- sage upon a steamer, or a seat in a railway carriage, does not "employ" such steamer or carriage in any just sense. (IT. S. v. Thomas, 195 U. S., 418.) Under section 1571, Revised Statutes, the term "vessels employed by authority of lavv" is restricted to vessels owned_ or otherwise engaged in the Government service; and travel under orders by naval officers upon a merchant vessel is not service within the meaning of that section. (McGowan v. U. S., 49 Ct. Cls., 454.) Section 1571 recognizes the fact that a naval officer, like a landsman, may be on shore duty 880 The Navy. PL 2. REVISED STATUTES. Sec. 1571, and yet sailing the seas beyond the 3-mile limit. (McGowan r. U. S., 49 Ct. Cls., 454.) WTiere an assistant surgeon in the Navy travels under orders, as a passenger, on a United States naval vessel from China to reach an assignment to duty in the Philippine Islands, he is not performing sea serA-ice and is only entitled to shore pay. "^^hile he was traveling under orders, his orders were not to perform sea ser^dce in the sense required to entitle him to sea pay. (Thompson v. U. S., 49 Ct. Cls., 459.) Where an assistant surgeon in the Navy was ordered by the commander in chief of the Asiatic station to proceed on the U. S. S. Iris and report to the senior squadron commander off Taku, China, for temporary duty with the detachment of marines; and under orders of the senior squadron commander he performed ser\'ices in China with the United States marines, such services were shore duties and not duties at sea; during the period in question he was not attached to and performed no duty on any ship. (Thompson v. U. S., 49 Ct. Cls., 459.) Mixed duty; which is paramount. — • WTiere the assignment of an officer to duty by the Navy Department expressly imposes upon him the continued discharge of his sea duties, and qualifies the shore duty as merely tem- poraiy and ancillary to the regular sea duty, the presumption is that the shore duty is tem- porary and does not operate to interfere mth or discharge the officer from the responsibilities of sea duties to which he is regularly assigned; and he is entitled to sea pay during the time of such temporary shore duty. (U. S. v. Engard, 196 U. S., 511.) ■\\Tiere an officer is assigned to the command of a training ship, and of a vessel at a station used as a training ship, and his most arduous and responsible duties are discharged on shore, it must be held that the ship is the incident and the shore the principal. (McGowan v. U. S., 36 Ct. Cls., 63.) WTiere the question is one of shore duty or sea ser\ice, the facts in each case must be con- sidered, and where there is a preponderance the service having paramount character must constitute the basis on which to predicate the right of pay. (McGowan v. U. S., 36 Ct. Cls., 63.) The fact that the Secretaiy of the NaAy designates a mixed duty as shore duty is an indication of the construction which he places upon it. (McGowan v. U. S., 36 Ct. Cls., 63.) A naval officer on shore duty who was as- signed to the temporary command of a vessel in the Coast Survey ser%-ice, but who continued on shore duty and did not live continuously on board the vessel, and was not subject to" the restrictions, _ requirements, or regulations of sea service, is entitled only to shore-duty pay. (Taussig V. U. S.,;38 Ct. Cls., 104.) Officers of the Navy may perform duty on a recei\'ing ship which vnll entitle them to sea pay; but only where they wear their uniform when on duty, live and mess on board the ves- sel, and are suljject to all the restrictions and regulations applicable to vessels at sea; but an officer also ha^■ing shore duty, liA-ing and mess- ing on shore in quartei's furnished to him by the Government, and presmnably recei\ing the allowances to which Army officers are en- titled, is entitled only to shore-duty pay. (Mahan i;. U. S., 40 Ct. Cls., 36.) It is well settled that where a naval officer attached to a vessel and detailed for shore duty is not called upon to perform services ashore incompatible with the performance of his duty on his ship, and the shore services are temporary and not so different in character as to detach him in fact from his vessel, his paramount duty is sea service. (Leach v. U. S., 44 Ct. Cls., , 132.) The primary question in the case of a naval j officer, "detailed for special duty on shore," is one of fact; and the court can not determine the character of the duty on shore or the right of the officer to sea pay or shore-duty pay with- out knowing what were the ser\dces rendered on shore, and how far they detached him in fact from his vessel. (Leach v. U. S., 44 Ct. Cls., 132.) WTiere an officer of the Navy is assigned by proper authority to sea duty on a vessel at Guam, he can not be considered as "detailed for shore duty beyond seas, " because the naval governor of Guam, by a verbal order, directed him to do duty on shore. (Furlong v. U. S., 45 Ct. Cls., 493.) Duty performed on shore by a naval officer without ha\ing been detailed for shore duty must be regarded as temporary service per- formed while he officially remains on board the vessel to which he is attached. (Furlong ■y. U. S., 45 Ct. Cls., 493.) When a naval officer attached to a vessel and entitled to sea-service pay is ordered by the Secretary of the Navy to report for recriut- ing service ' 'in addition to your present duties, " and he is absent from his vessel on recruiting duty on shore a year, he is not entitled to sea pay though he remains technically attached to his vessel. (Doyle v. U. S., 46 Ct. Cls., 181.) An officer entirely relieved from all the re- sponsibilities and discomforts of sea service for more than a year while with a recruiting party on shore can not be regarded as on temporary shore ser\-ice, though technically the order assigning him to recruiting duty did not detach him from his vessel or separate him from sea duty. (Doyle v. U. S., 46 Ct. Cls., 181.) Where an officer in the performance of sea duty left his vessel on authorized leave, and without rejoining his vessel or resuming his sea duty thereon was placed on special tempo- rary duty ashore in the Bureau of NaA-igation, he was not, while in the performamce of such temporary duty ashore, in a sea-duty status, and was not entitled to sea-duty pay. (18 Comp. Dec, 340.) When right to sea pay begins and ends. — The right of a naval officer to sea pay begins when sea service begins, independent of any order of the Navy Department. (Wyckoff v. U. S., 34 Ct. Cls., 288.) An officer detached from one vessel and assigned to duty on another, by proper author- ity, is on shore duty while passing fi-om the one to the other, and entitled only to shore-duty pay. (Ryan v. U. S., 38 Ct. Cls., 143.) The act of May 13, 1908 (35 Stat., 128), pro- vides that "all officers on sea duty and all 881 Sec. 1571. Pt. 2. REVISED STATUTES. The Navy. officers on shore duty beyond the continental limits of the United States shall %vhile so serving receive ten per centum additional of their salaries and increase as above provided, and such increase shall commence from the date of reporting for duty on board ship or the date of sailing from the United States for shore duty beyond the seas or to join a ship in foreign waters." An officer in 1867 and 1868 was not entitled to sea pay after being detached from his vessel on a foreign station and ordered to report to the Secretary of the Navy. (Bishop v. U. S., 38 Ct. Cls., 473.) Wliere an officer of the Navy is detached from sea duty he ceases to be entitled to sea pay, and, generally, increased pay will cease when an officer is detached from service en- titling him thereto. (McCully v. U. S., 42 Ct. Cls., 275.) Prior to the act of May 13, 1908, there was no statute gi^^^ng officers a 10 per cent increase in pay subsequent to detachment abroad from eea duty, unless while retm-ning they were actually in the performance of sea duty. Accordingly, the clause in the act of May 13, 1908, sa\ing officers of the Navy from reduction in pay and allowances then authorized by law, has no application to a claim for sea pay by an officer after detachment abroad from sea duty and while retm-ning to the United States. (McDonald v. U. S., 48 Ct. Cls., 123.) Prior to the act of May 13, 1908, officers of the Navy were entitled to the increased pay for shore duty beyond seas until their return to the United States; and the act of May 13, 1908, did not change the law so as to deprive naval officers of the right to increased pay while re- tmning home upon orders fiom foreign shore duty; the sa^•ing clause in that act preserved the right of naval officers in this respect under laws previously existing. (Gearing v. U. S., 46 Ct. Cls., 187; see note to sec. 1556, R. S., vmder "Additional pay for special duty," with respect to "Shore duty beyond seas.") The statutory situation is anomalous, pro- viding extra compensation for officers on foreign shore duty from the time of departure from the United States to the time of their return, and in restricting the extra allowance in the case of naval officers on sea service to a period ex- tending only to the time consumed in reaching the assignment for sea duty; but there is no escape fi'om that conclusion, which the express language of the statute prescribes. The ine- quality will not justify the court in departing from the express tenns of the law. (McDonald 4). U.S., 48 Ct. Cls., 123.) An officer is not entitled to sea-duty pay while aboard a tmnsport en route to the United States after having been detached fi-om sea duty abroad. (McDonald v. U. S., 48 Ct. Cls., 123, citing Farenholt v. U. S., 42 Ct. Cls., 114.) In United States v. Thomas (195 U. S., 418), the Supreme Court declined to extend the benefits of extra compensation provided for Anny officers for service beyond the limits of the United States, under the acts of May 26, 1900 (31 Stat., 211), and March 2, 1901 (31 Stat., 903), to naval officers performing sea service imder similar conditions; and doubtless the act of May 13, 1908, allowing increased pay "from the date of reporting for duty on board ship or the date of sailing from the United States for shore duty beyond the seas or to join a ship in foreign waters," was enacted with this decision in view. Just why the period of computation in allowing the extra per centmn is so spe- cifically circumscribed is difficult to perceive; nevertheless the express language of tne act so provides, and the express provisions of law must govern. (McDonald v. U. S., 48 Ct. Cls., 123.) Sea pay allowed for shore duty. — See note to section 1556, Revised Statutes, under "Additional pay for special duty," with re- spect to the pay of the Superintendent of the Naval Academy and of the commandant of the navy yard, Mare Island. The duty of the Judge Advocate General of the Navy being shore duty, he was entitled only to shore-duty pay under the act of June 8, 1880 (21 Stat., 164), wliich provided that the Judge Advocate General shall have "the rank, pay, and allowances of a captain in the Navy or a colonel in the Marine Corps, as the case may be. " The court knows of no instance where an officer in the Navy is entitled to sea pay and allowances while performing shore duty, except where it is so provided by express statute. (Lemly v. V. S., 28 Ct. Cls., 468.) Under the amendatory act of June 5, 1896 (29 Stat., 251), which provided that the Judge Advocate General of the Navy should receive the "highest pay of a captain in the Navy," held, that the Judge Advocate General was entitled to the sea pay of a captain. (11 Comp. Dec, 11. For other cases, see note to sec. 421, R. S., relating to pay of chiefs of bureaus in the Navy Department.) The words "highest rates of pay_ attached to their respective grades" as used in a special act of Congress, approved July 29, 1886 (24 Stat., 346), increasing the pay of certain offi- cers for exceptional shore service, mean some- thing more than "sea pay"; these words entitle the officers concerned to the highest sea pay of their grade, i. e., the rate of pay allowed for sea duty to officers in that grade entitled to the maximum increase for longevity. (Schuetze v. U. S., 24 Ct. Cls., 299.) Officers temporarily absent from, their ship. — See note to section 1556, Revised Statutes, under "Absence from duty"; see also note above, imder "Mixed duty, which is paramount." An officer attached to a vessel at sea, and not detached from it by competent authority, is entitled to sea jjay wliile temporarily in a naval hospital because of a gunshot wound incurred in the line of duty. (CoUins v. U. S., 37 Ct. Cls., 222.) A Navy regulation providing that "an officer temporarily absent from a ship in commission to which he is attached shall continue to re- ceive sea pay" does not contravene section 1556, Revised Statutes. (Collins v. U. S., 37 Ct. Cls., 222.) Where a naval officer is attached to a vessel when ordered to a hospital for treatment, he is entitled to sea pay while in the hospital; but if when orderea to the hospital he is awaiting the arrival of the vessel to which he has been ordered, he is not then attached, and will not 882 The Navy. Pt. 2. REVISED STATUTES. Sec. 1573. be entitled to sea pay while in the hospital. (Ackley v. U. S., 40 C"t. Cls., 216.) Officers of the Navy gi-anted temporary leave of absence from their ships are not, during absence on such leave, on "sea duty," and. therefore are not entitled under the act of May 13, 1908, to the 10 per cent additional pay there- in authorized for officers "while so serving." (15Comp._Dec., 656.) A commissioned officer of the Navy is not en- titled to the 10 per cent additional pay for sea duty while on leave of absence, even though the leave b e of only one day's duration . ( Comp . Dec, June 8, 1915, 172 S. and A. Memo., 3703.) A warrant officer of the Na\y granted leave of absence from duty at sea is entitled, under the act of August 29, 1916 (39 Stat., 578), to full pay at the rate received by him while on sea duty. (23 Comp. Dec, 200. Note: The act of Aug. 29, 1916, provided that "warrant officers shall be allowed such leave of absence, with full pay, as is now or may hereafter be allowed other officers of the United States Navy. ") Sea service nonnal duty of naval oflS.- cers. — If Army officers should be allowed increased pay when ordered to sea or to a foreign port, it would not follow that naval officers rec^ving Army pay would be entitled to a like increase, since such service would be wholly exceptional in the case of Army offi- cers, while it is the natural and normal duty of naval officers to engage in sea service, cruise in foreign waters, and lie up in foreign ports. (U. S. V. Thomas, 195 U. S., 418.) The normal pay of naval officers under the Navy personnel act of March 3, 1899 (30 Stat., 1004), is the higher, i. e., sea service pay; the exceptional pay is for shore service; both are dependent upon the character of the service. (Ryan v. U. S., 38 Ct. Cls., 143.) tjnder the Navy personnel act the normal pay of officers in the Navy is sea pay, and the exceptional pay is for shore service; where an officer performs shore duty and receives shore pay, he is not entitled to the normal pay. (Mahan v. U. S., 40 Ct. Cls., 36.) Sec. 1572. [Detention beyond term of enlistment. Superseded.] This section provided as follows: "Sec. 1572. All petty officers and persons of inferior ratings who are detained beyond the terms of service, according to the provisions of section fourteen hundred and twenty-two, or who, after the termination of their sei'vice, voluntarily re-enter, to serve until the return to an Atlantic port of the vessel to wliich they belong, and until their regular discharge there- from, shall, for the time during which they are so detained or so serve beyond their original terms of service, receive an addition of one- foiu-th of theii' former pay." — (17 July, 1862, c. 204, s. 17, V. 12, p. 610.) It was superseded by the act of March 3, 1875 (18 Stat., 484), which also superseded sections 1422-1425, Revised Statutes, and re- enacted, with amendments, the provisions of all these sections as section 1422, Revised Stat- utes. See notes to sections 1422-1425, Revised Statutes. Additional pay not pay of rating. — The additional pay to which petty officers and persons of inferior ratings are temporarily en- titled, under the provisions of section 1422 and 1572, Revised Statutes, should not be added to their regular rates of pay in computations under a statute (sec. 4631, R. S., par. 5), providing for the distribution of bounty among the officers and crew of a vessel "in proportion to their respective rates of pay in the service." (En- gagement off Santiago Bay, 36 Ct. Cls., 200.) For other cases, see notes to sections 1418, 1422, and 1569, Revised Statutes. Sec. 1573. [Honorable-discharge gratuity and continuous-service pay.] If any enlisted man or apprentice, being honorably discharged, shall reenlist for four years within four months thereafter, he shall, on presenting his honorable discharge or on accomiting in a satisfactory manner for its loss, be entitled to a gratuity of four months' pay equal in amount to that which he would have received if he had been employed in actual service : Provided, That any enlisted man in the Navy whose term of enlistment has been extended for an aggregate of four years shall, after the expiration of the preceding four-year term of enlistment upon which the extension is made and if otherwise entitled to an honorable discharge, be paid the gratuity above provided: And 'provided, That any man who has received an honorable discharge from his last term of enlistment, or who has received a recommendation for reenlistment upon the expiration of his last term of enlistment, who reenlists for a term of four years within four months from the date of his discharge, shall receive an increase of one dollar and thirty-six cents per month to the pay prescribed for the rating in which he serves for each successive reenlistment: And provided further, That an extension of the period of enlistment as hereinbefore authorized, aggregating four years, shall be held and considered as equivalent to continuous 883 Sec. 1573. Pt. 2. REVISED STATUTES. The Navy. service with respect to till rights, privileges, and benefits granted for such service pursuant to law." This section was expressly amended and reenacted to read as above by act of August 22, 1912 {:\7 Stat., 331). As originally enacted it read as follows: "Sec. 1573. If any seaman, ordinary seaman, landsman, fireman, coal heaver, or boy, being honorably discharged, shall reenlist for three years, wnthin three months thereafter, he shall, on presenting his honorable discharge, or on accounting in a satisfactory manner for its loss, be entitled to pay, during the said three months, equal to that to which he would have been entitled if he had been employed in actual sendee."— (2 Mar. 1855, c. 136, s. 2, v. 10, p. 627. 7June, 1864, c. ni,v. 13, p. 120.) It had previously been amended by joint resohition of June 11, 1896 (29 Stat., 476), which reads as follows: "That the benefits of honorable discharge, as conferred by section fourteen hundred and twenty-six of the Re- A-ised Statutes, and of three months' pay upon reenlistment after honorable discharge, as con- ferred by section fifteen hundred and seventy- three, upon seamen, ordinary seamen, lands- men, firemen, coal heavers, and boys, be, and the same are hereby, extended and made appli- cable to all enlisted persona in the Navy. And all accounts of paymasters who have made payments to enlisted men, not of the classes named in sections fourteen hundred and twenty-six and fifteen hundred and seventy- three of the Re\d8ed Statutes as if they had been included in the provisions of said sections, shall be allowed and passed by the accounting officers of the Treasury as if they had been in- cluded in said sections." It was further amended and reenacted by the Navy personnel act of March 3, 1899, section 16 (.30 Stat., 1008), which fixed the term of enlistment in the Naxy at four years, and expressly pro-vided that section 1573, Revised Statutes, be amended to read as follows: "If any enlisted man or apprentice, being hon- orably discharged, shall reenlist for four years mthin four months thereafter, he shall, on pre- senting his honorable discharge or on accounting in a satisfactory manner for its loss, be entitled to pay during the said four months equal to that to which he would have been entitled if he had been employed in actual service; and that any man who has received an honorable discharge from his last term of enlistment, or who has received a recommendation for re- enlistment upon the expiration of his last term of service of not less than three years, who reenlists for a term of four years within four months from the date of his discharge, shall receive an increase of one dollar and thirty-six cents per month to the pay prescribed for the rating in which he serves for each consecutive reenlistment." Other modifications of section 1573 have been made by the follo\ving enactments: Bjr act of August 22, 1912 (37 Stat., 331), provision was made for the discharge of any enlisted man within three months before the expiration of his term of enlistment or extended enlistment, "without prejudice to any right, privilege, or benefit that he would have re- ceived, except pay and allowances for the unexpired period not serv-ed, or to which he would then^after become entitled, had he served his full term of enlistment or extended enlistment." _ By act of April 25. 1917 (40 Stat., 38), exten- sion of minority enlistments in the Navy and Marine Corps was authorized under similar conditions as provided by law for extending other enlistments. By act of August 29, 1916 (39 Stat., 560), it was provided that enlisted men who serve one year at sea shall, in time of peace, if they so elect, be given a discharge without cost; that "an honorable discharge may be granted under this provision, but when so granted shall not entitle the holder, in case of reenlistment, to the benefits of an honorable discharge granted upon completion of an enlistment." This enactment was repealed by act of March 4, 1917 (39 Stat., 1171). By act of August 29, 1916 (39 Stat., 590), it was provided that "Men who have enrolled in the Fleet Naval Reserve within four months of the date of their discharge from the Regular Navy shall, upon reenlistment in the regular naval service within four months of the date of discharge from the Fleet Naval Reserve, be entitled to the same gratuity and additional pay as if they had reenlisted in the regular naval service within four months of discharge therefrom." By act of March 4, 1917 (39 Stat., 1174), it was provided that any former member of class 1 of the United States Naval Reserve, estab- lished by act of March 3, 1915 (.38 Stat., 940), who reenlisted in the Navy prior to May 1, 1917, shall be held and considered to have reenlisted within four months from the date of discharge from the Navy for the purpose of continuous service pay. By act of May 22, 1917, section 3 (40 Stat., 85), it was provided "that enlistments in the Navy and Marine Corps, during such time as the United States may be at war, shall be for four years, or for such shorter period or periods as the President may prescribe, or for the period of the present war." (This enactment amended sec. 1573, R. S. See 25 Comp. Dec, 315, noted below, under "Short-term enlistments." By act of July 1, 1918 (40 Stat., 719), it was provided that retired enlisted men recalled to active service shall be entitled to the benefits of continuous ser\'ice for such length of time as employed in active service. (See note below, under "Retired enlisted men.") By act of July 11, 1919 (41 Stat., 134), it was pro\'ided that "until June 30, 1920, enlistments in the Navy may be for terms of two, three, or four years, and all laws now applicable to four- year enlistments shall apply, under such regu- lations as may be prescribed by the Secretary of the Navy, to enlistments for "a shorter period with proportionate benefits upon discharge and reenlistment." 884 The Navy. PL 2. REVISED STATUTES. Sec. 1573. By the same act of July 11, 1919 (41 Stat., 139), it was pro\'ided that enrolled men of the Naval Reserve Force, who have performed active duty during the war, may be transferred to the Regular Na\'y to serve out the unexpired term of their enrollment, and that men so transferred "shall be entitled to and receive the same pay, rights, privileges, and allow- ances in all respects as now provided by exist- ing law for men regularly discharged and re- enlisted immediately upon expiration of their full four-year enlistment in the Regular Navy or Marine Corps." The same act of July 11, 1919 (41 Stat., 139), authorized the issuance of honorable discharges to men who served in the war with the German Government and were discharged, after No- vember 11, 1918, prior to expiration of their full enlistment. The said act of July 11, 1919 (41 Stat., 139). provided that men who, after February 3, 1917, and before November 11, 1918, enlisted for four years, shall, upon application to the Sec- retary of the Navy on or before September 1, 1919, be held to have enlisted for the duration of the war, and shall, when discharged, be granted an honorable discharge if otherwise entitled thereto; and that any enlisted man so discharged from the Navy, Marine Corps, or Coast Guard, and thereafter reenlisting in the Navy or Marine Corps within four months, under conditions prescribed by law, for a period of four years, "shall be entitled to receive the benefits of the gratuity pay provided by exist- ing law for reenlistments." By the same act it was provided that men enlisted for the period of the war, or who are regarded as having enlisted for the duration of the war, may, if entitled to an honorable dis- charge, extend their enlistments for one, two, three, or four years; and shall be entitled to and receive the same rights, privileges, pay, and allowances in all respects as pro\dded by law for men who extend enlistments on com- pletion of their terms of enlistments, except as to gratuity pay; and that, as to the latter, such men shall be allowed one month's pay for an extension of one year, two months' pay for an extension of two years, three months' pay for an extension of three years, and four months' pay for an extension of four years. By the same act (41 Stat., 141) it was provided that enlisted men discharged to accept appoint- ments as officers in the Naval Reserve Force who reenlist in the Navy \vithin four months after termination of their reserve ser\-ice shall be entitled to count his service in the Regular Navy and his active service in the Naval Re- serve Force as continuous for purposes of con- tinuous-ser\-ice pay. By act of May 18, 1920, section 10 (41 Stat., 603), it was pro\'ided "that any enlisted man who shall reenlist in the Navy within one year from the date of his discharge therefrom shall, upon such reenlistment, be entitled to and shall receive the same benefits as are now authorized by law for reenlistment ^vithin four months from date of last discharge from the service: Provided, That this section shall be- come inoperative six months after the date of the approval of this act." (This pro-vision was not retroactive, but was effective only from May 18, 1920, to November 17, 1920, inclusive. (26 Comp. Dec, 1065.) By act of June 4, 1920 (41 Stat., 836, sec. 7), it was pro\'ided "that hereafter enlistments in the Navy and in the Marine Corps may be for terms of two, three, or four years, and all laws now applicable to four-year enlistments shall apply, under such regulations as may be pre- scribed by the Secretary of the Naw, to en- listments for a shorter period with proportionate benefits upon discharge and reenlistment." Historical note. — Prior to the passage of the Navv personnel act of March 3, 1899, sec- tion 16 (30 Stat., 1008), the right of enlisted men of the Na\y to increased pay, based on pre\'ious continuous 8er\'ice, was governed by regulations of the Navy. (6 Comp. ,Dec., 589.) Under section 1569, Revised Statutes, the President had the authority to provide an in- crease of pay for continuous ser\-ice, and to make it subject to such conditions as he might deem proper. (4 Comp. Dec, 281.) Continuous-service certificates and additional pay of $1 per month for each continuous re- enlistment to all persons holding such certifi- cates was provided for in a circular issued by Mr. Borie, Secretary of the Navy, on April 26, 1869, the provisions of which were embodied in the Navy Regulations of 1870, as articles 1070 and 1071, and with slight verbal changes re- peated in the Regulations of 1876 as paragraphs 18 and 19 of chapter 10, section 2, page 100. The same general provisions were repeated in General Order No. 327 of November 21, 1884, and incorporated in the Navy Regulations of 1893 as articles 810 and 1172. (3 Comp. Dec, 316.) Under the Navy Regulations of 1893, article 1172, and 1896, article^ll74, in order to entitle a seaman to increased pay for continuous service he must have received an "honorable" dis- charge from a previous enlistment or a recom- mendation for reenlistment upon its termina- tion, and must have reenlisted for three years within three months from the date of discharge. An exception, however, was made in the case of enlisted men who were prevented from serving the full term of their enlistments by reasons of the wi'ecking of the vessel on which they were serving. (4 Comp. Dec, 281.) Although no specific regulation therefor existed, it was held that an enlisted man dis- charged prior to expiration of his term of en- listment, in the case where a vessel was -vvi-ecked or lost, and who was issued a continuous- service certificate in accordance ■R'ith the prac- tice of the Navy Department, was entitled to the additional compensation authorized by the Navy Regulations for all persons holding such certificates, the same as though he had actually completed his term of enlistment. (3 Comp. Dec, 316.) A practice of the Navy Department relating to the pay of enlisted men was the equivalent of a specific regulation of the Secretary of the Navy, and, like all other regulations of the Navy Department relating to the pay of seamen of the Navy, was presumed to be the act of the President prescrilaing the pay of these men as requii'ed by section 1569, Revised Statutes. (3 Comp. Dec, 316.) 885 Sec. 1573. Pt. 2. REVISED STATUTES. The Navy. The honorable discharge required by the Navy Ilep;ulations prescribing conlinuous- serAice pay was that provided for in sections 1426 and 1425), Revised Statutes, and was de- pendent upon fidelity and obedience in the service. It differed from the "ordinary" discharge in that the latter caiTied with it no testimonial as to the special good qualities and fitness of the holder. Accordingly, Md, that where an enlisted man UT)on the expiration of his term of enlistment received an "ordinary" discharge, which contained no recommendation for reenlistment, he was not entitled to the benefit of continuous ser\ice. Having there- after received an honorable discharge and complied \nth the other conditions of continu- ous sqrvice, he was entitled to increased pay from the date of this fii'st reenlistment after receiving an honorable discharge. (4 Comp. Dec, 281.) The pm-pose of the joint resolution of Jime 11, 1896 (above quoted), was to legalize the practice of paying all enlisted men, upon reenlistment, the. extra pay, which practice had crept into the sendee without warrant of law. This practice doubtless arose from the fact that the honorable discharge pro^ided for in section 1429, Re\'ised Statutes, was con- fused with the honorable discharge gi'anted under section 1426. The object of the honor- able discharge provided for in section 1429 is stated in that section to be "as a testimonial of fidelity and obedience, " while the honorable discharge pro\ided for in section 1426, taken in connection with section 1573, is seen to be for the purpose of holding out the extra pay to the six lowest classes of enlisted men in the Na\-y as an inducement to reenlist. By the joint resolution cited. Congress has seen fit to extend the pri^-ileges arising from honorable discharges upon reenlistment far beyond what was originally proA-ided. (2 Comp. Dec, 608.) The joint resolution of June 11, 1896 (above quoted), extended the benefits conferred by sections 1426 and 1573, Re\ised Statutes, to all enlisted persons. (2 Comp. Dec, 608.) For other cases, see note to section 1426, ReAised Statutes. In particular cases, prior to the act of March 3, 1899, the Secretary of the Na\'y could waive the pro\dsion requiring reenlistment within three months from the date of pre^ious honor- able discharge as a condition to payment of continuous-ser\-ice pay. (6 Comp. Dec, 589.) The increase in monthly pay for continuous service is now fixed by law, instead of by Navy Regulations. (5 Comp. Dec, 929.) The rate of increased pay for continuous sen-ice which, before the Na\^ personnel act of March 3, 1899, section 16 (30 Stat., 1008), had been fixed by the President under section 1569, Re^i8ed Statutes, became by said act a part of the statutoiy law. Said act fixed the increase of SI. 36 per month to the pay pre- scribed for the rating, for each consecutive reenlistment, as the measure of the increase of value to the sendee of one who so reenlists; and it is not within the power of anyone, until the law is changed, to fix a greater or less rate. Under section 1569 the President could fix the pay to be allowed an enlisted man, and could change same from time to time, as he deemed just and proper; but when he had fixed the rate, then by section 16 of the person- nel act Congress declared what increased amount the man should receiA-e for reenlist- ment. (8 Comp. Dec, 227; see note below, under "Continuous-sendee pay defined. ") "Continuous-service pay" defined. — Broadly speaking, continuous-sendee pay in- cludes any pay or gratuity whicli is based upon the element of continuity in the sendee of enlisted men. So defined", continuous-sendee pay includes the so-called honorable discharge gratuity, since the payment of such gratiuty is dependent on continuity of sendee. It also includes additional pay allowed under Gen- eral Order No. 34 of 1906 (noted under sec. 1569, R. S.), as well as continuous-sendee pay proper. (25 Comp. Dec, 440.) Reenlistment pay under General Order No. 34 of 1906 (noted under sec. 1569, R. S.), con- tinuous-sendee pay under the act of August 22, 1912, and honorable-discharge gratuity under the act of August 22, 1912, are three distinct classifications of pay that should be kept sep- arate and apart in any consideration of an en- listed man's respective rights thereto, each being dependent upon conditions peculiar to itself. (26 Comp. Dec, 565.) Na\-y Department General Order No. 20 of January 1, 1901 (noted under sec. 1569, R. S.), fixing the pay of mess attendants for the second and third enlistments, and adding §4 to the monthly pay of the rating for a first reenlist- ment, and S4 more per month for a second reenlistment, in addition to the $1.36 per month for each consecutive reenlistment allowed by section 16 of the Na\'y personnel act, was con- trary to law in that the rate of increased pay to be allowed for continuous sendee was fixed by Congress in the NaAy personnel act, and the order of the President fixed an additional amount per month which constituted an in- crease in continuous-sendee pay. (8 Comp. Dec, 227.) Na^y Department General Order No. 34 of November 28, 1906, publishing Executive order of November 27, 1906 (quoted under sec. 1569, R. S.), pro\dding increased compensation for trained men who are citizens of the United States, was within the authority conferred upon the President by section 1569, Re%dsed Statutes, and not contrary- to the act of March 3, 1899, section 16, pro\dding continuous-servdce pay of SI. 36 per month. General Order No. 34 does not attempt to pro^dde for continuous- sendee pay, but does undertake to pro\dde for pay based on length of sendee, or longe\dty pay. The main purpose of the statute pro^dd- ing for continuous-ser\dce pay was to encourage immediate reenlistments, while that of General Order No. 34 was to establish higher rates of pay for trained men. Their periods of prior ser\dce were not required to immediately pre- cede the last enlistment, but might have been at any time, continuous reenlistment not being required. (13 Comp. Dec, 448, distinguishing 8 Comp. Dec, 227; see also 17 Comp. Dec, 27, 32.) "Pay" defined. — The term "pay " in section 1573, Revised Statutes, entitling men on re- 886 The Navy. Pt. 2. REVISED STATUTES. Sec. 1573. enlistment to "pay" during the said three months, means regular pay, and does not in- clude increased pay for extra duty. (5 Comp. Dec, 241.) Neither the additional^ pay of an enlisted man of the Na\y for service as a gun pointer, nor that for service on board of submarine vessels, is "pay" within the meaning of that tenn as used in section 1573 of the Revised Statutes as amended by the act of March 3, 1899, section 16 (30 Stat., 1008). (12 Comp, Dec, 772.) The reenlistment pay provided by section 1573, Revised Statutes, as amended by act of March 3, 1899, includes the extra pay provided for the holders of good-conduct medals by article 1257 of the Navy Regulations of 1905. (13 Comp. Dec, 253.) On reenUstment a man is entitled to the regular pay of his rating dining the four months as provided by section 1573, as amended, sub- ject, however, to said pay being increased or reduced dming the said four months, and in- cluding pay for good-conduct medal awarded on day of discharge. (17 Comp. Dec, 355.) Under the provisions of the act of July 11, 1919 (41 Stat., 140), the increases in pay au- thorized by section 15 of the act of May 22, 1917 (40 Stat., 87), became a part of the penna- nent base rate of pay of an enlisted man in the Navy during the continuance of certain enlistments; and upon this new base rate and permanent increases by continuous service, medals, and General Order No. 34 of 1906 (noted under sec. 1569, R. S.), the honorable-dis- charge gratuity, wliich is authorized for men who reenlist in the regular Navy should be computed. (26 Comp. Dec, 139.) The $2 per month additional pay authorized by the act of February 4, 1919 (40 Stat., 1056), to each enlisted or enrolled person of the naval service to whom is awarded a medal of honor, distinguished-serv'ice medal, or a Navy cross should be included in computing honorable- dischai'ge gratuity of enlisted men who reenlist in the Navy for four years within four months after an honorable discharge. (26 Comp. Dec, 976.) Character of discharge. — See "Historical note" above; see also note to section 1426, Revised Statutes; and see statutes quoted above under this section. To entitle a seaman in the Navy to the thi'ee months' extra pay for reenlisting, known as "honorable-discharge" money, provided for in section 1573, Revised Statutes, his discharge from his previous service must have been honorable within the terms of sections 1426 and 1429, Revised Statutes. An ordinary discharge was not sufficient to entitle him to the three months' extra pay. (4 Comp. Dec, 281.) An enlisted man of the Navy who received a "bad-conduct" discharge from his last en- listment is not entitled to receive in his present enlistment any continuous-service pay. Under section 1573, Revised Statutes, as amended, he must have received an honorable discharge from his last term of enlistment, or a recom- mendation for reenlistment upon the expiration of his last term of enlistment; otherwise, on reenlistment he loses the benefit of continuous- service pay which he received under his pre- vious enlistment, as well as failing to acquire any new right to continuous-service pay. (20 Comp. Dec, 856.) An enlisted man of the NaAry dishonorably discharged, pursuant to the sentence of a general court-martial, within three months preceding the expiration of his enlistment, and recommended for reenlistment, is not entitled on reenlistment within four months to any continuous-service pay. His discharge was pursuant to the sentence of com't-martial, and not for expii'ation of enlistment; although it happened to occur within three months prior to expiration, it was not a discharge authorized by the act of August 22, 1912 (37 Stat., 331, quoted above). As his discharge was not honorable, and as it occurred prior to the ex- piration of his last term of service, and inde- pendently of the act of August 22, 1912, the recommendation for reenlistment received by him was not a "recommendation for reenlist- ment upon the expiration of his last term of enlistment" within the meaning of section 1573, as amended. (21 Comp. Dec, 871.) An enlisted man of the Navy who, on being dishonorably discharged after the expii-ation of his enlistment, is recommended for reenlist- ment, is entitled upon reenlistment within four months after the date of discharge to ad- ditional pay for continuous service. (Comp. Dec, Aug. 31, 1914, 70 MS. Comp. Dec, 1914; cited in 21 Comp. Dec, 871.) The act of August 22, 1912 (37 Stat., 331), providing for the discharge of men at any time within three months prior to expii'ation of enlistment, without prejudice, etc., (quoted above), amended section 1573, Revised Statutes. (24 Comp. Dec, 776.) An enlisted man of the Navy whose preceding period of enlistment expired while he was on furlough without pay, as authorized by act of August 29, 1916 (39 Stat., 580), and who there- fore, in accordance vvith the practice then pre- vailing, did not receive an honorable discharge upon expiration of his enlistment, his enlist- ment ha\ing been regarded as. terminated by furlough, and not by expiration, held, not en- titled, on reenlistment, to continuous-service pay as authorized by the act of August 22, 1912 (37 Stat., 331), amending section 1573, Revised Statutes (25 Comp. Dec, 328). As an enlistment which expires wMle the enlisted man is in desertion is not a termination of service by expiration of enlistment, held, that an enlisted man of the Navy who deserts, surrenders himself subsequent to the period of enlistment, and is permitted to reenlist, is not entitled to continuous-service pay under the act of August 22, 1912 (37 Stat., 331), not having received an honorable discharge from his last term of enlistment, and not ha\ing been recom- mended for reenlistment upon the expiration of his last tenn of enlistment. (26 Comp. Dec, 250.) Period allowed for reenlistment. — See "Historical note" above. See also act of February 8, 1889 (25 Stat., 657), which per- mitted persons honorably discharged, in ac- cordance with section 1429, Revised Statutes, to elect a home on any receiving ship, with one ration per day, during any portion of the time allowed them to reenlist with the pecuniary 887 Sec. 1573. Pt. 2. REVISED STATUTES. The Navy. benefits authorized by section 1573, Re\-i8ed Statutes. A seaman who was honorably discharged September 21, 1898, and reenlisted Decem- ber 21, 1898, reenlisted " within three months " as pnnided by section 1573, Re\i8ed Statutes, and became entitled to pay during the said three months. (5 Comp. Dec, 362.) The Secretary of the Naxy has no authority to waive the three months' limitation in the provision of section 1573, RoN-ised Statutes, as amended by joint resolution of June 1 1 , 1896, which, prior to the passage of the naval per- sonnel act of March 3, 1899, section 16 (30 Stat., 1008), pro\ided for three months' pay on reen- listment in the Na^'y for a term of three years within a period of three months. (6 Comp. Dec, 589.) Under article 861, NaA-y Regulations, 1900, an enlisted man of the Na^y who accepted an appointment as paymaster's clerk thereby ter- minated his enlistment; and where he served as paymaster's clerk more than four months he was not entitled, on subsequently reenlisting, to count his prior service as an enlisted man in computing his longe\ity pay. (10 Comp. Dec, 528.) Where an enlisted man was discharged at his own request, with recommendation for re- enlistment, prior to the expiration of his term of enlistment but after serving for more than three years, to enable him to accept an appoint- ment as paymasters clerk, he was entitled, upon reenlisting within four months from the time of his discharge, to the continuous-service pay provided for by the act of March 3, 1899. (11 Comp. Dec, 682.) The phrase "within four months," as used in section 16 of the act of March 3, 1899 (30 Stat., 1008), amending section 1573, means wdthin four calendar months; and in computing the same the day of discharge and that day only should be excluded. (14 Comp. Dec, 583.) An enlisted man of the Navy who was hon- orably discharged January 19, 1907, and reen- listed May 20, 1907, did not reenlist "within four months" within the meaning of section 16 of the act of March 3, 1899, and is not entitled to the honorable-discharge gratuity pay for said four months, nor to the $1.36 increase of Say, during such reenlistment. (14 Comp. ►ec, 583.) Where an enlisted man of the Na\'y had been honorably discharged, and applied for reenlist- ment within the four months allowed by the act of March 3, 1899, but was not then formally reenlisted on account of the fact that his con- tinuous-service certificate had not been re- turned by the officer to whom he had forwarded same with request for transportation; and said man was formally reenlisted on a date subse- quent to the expiration of the four months, ha\'ing in the meantime actually entered on duty with the knowledge of the commanding officer of the ship upon which he had made application for reenlistment, held, that such man had reenlisted ^\•ithin the meaning of the act of March 3, 1899, and is entitled to all the benefits of said act as if his reenlistment had been formally completed on the date of appli- cation. (16 Comp. Dec, 359.) An honorably discharged enlisted man of the Navy applied for reenlistment to a traveling recruiting party; was given a preliminary ex- amination and authorization for reenlistment "subject to reexamination physically"; was physically reexamined and found disqualified for reenlistment and gi-anted permission to enter a na\al hospital for operative treatment, if he so desired, with a view to reenlistment— all within four months from the date of his dis- charge. Subsequent to the expiration of the four months' period he entered the hospital, and on discharge therefrom entered into the formal contract of enlistment and executed the oath of allegiance. Ilrkl, that he was not reenlisted \\ithin four months from the date of discharge, and is not entitled to honorable- discharge gratuity or continuous-ser\ice pay on such reenlistment. (19 Comp. Dec, 334.) Short-term enlistments.— While contin- uous-service pay provided for enlisted men of the Navy under the act of August 22, 1912 (37 Stat., 331), is authorized only when reen- listment is for a term of four vears, the act of May 22, 1917 (40 Stat., 85), modifies the provi- sion of the former act as to the term of enlist- ment, and by a fair construction of the two acts if an enlisted man reenlist s for another full term, as prescribed by the latter act, whether it be for four years or for such period as may be prescribed by the President, or for the duration of the present war, he is entitled to continuous-service pay if such reenlistment takes place within four months from the date of discharge. (25 Comp. Dec, 315.) For the purpose of computing payment of honorable-cUscharge gratuity, and continuous- service pay, enlistments in the Navy for "the period of the present war, " authorized by sec- tion 3 of the act of May 22, 1917 (40 Stat., 84), may be considered to have expired on date of discharge; or in case of an extension of enlist- ment, as provided by the act of July 11, 1919 (41 Stat., 139), on date the extension becomes effective. (26 Comp. Dec, 132.) Under the act of July 11, 1919 (41 Stat., 134), above quoted, providing for short-term enlist- ments ''with proportionate benefits upon dis- charge and reenlistment, " held that a man reenlisting for a term of three years acquired a right to continuous-serAdce increase of pay equal to three-fourths of $1.36 per month, plus 10 per cent. (26 Comp. Dec, 399.) The words "with proportionate benefits upon discharge and reenlistment" apply to discharge and reenlistment after expiration of an enlistment for less than four years, entered into under authority of the act of July 11, 1919. Accordingly, a man reenlisting in the Navy after July 11, 1919, for three years, was entitled to increase of continuous-service pay as allowed for a four-year enlistment; but upon his dis- charge and subsequent reenlistment he would be entitled to " pi-oportionate benefits " or three- fourths of the continuous-service pay allowed upon reenlistment after discharge fi'om a four- j'ear enlistment. (26 Comp. Dec, 706.) The amount of honorable-discharge gi-atuity of enlisted men of the Navy on reenlistments for two years, or three years, or four years, author- ized bv acts of July 11, 1919, and June 4, 1920 888 The Navy. Pt. 2. REVISED STATUTES. Sec. 1573. (above quoted), is equal to the pay the enlisted men would have received if they had been em- ployed in actual service two months, or three months, or four months, respectively. (27 Comp. Dec, 210, following 27 Comp. Dec, 101.) In computing continuous-service pay, the unit of ser\dce is four years; for each full four years of ser\ice the additional pay authorized should be credited for the ensuing four years of service without regard to length of time actually served in any particular enlistment of shorter periods authorized by acts of July 11, 1919, and June 4, 1920 (above quoted). (27 Comp. Dec, 210.) Enlisted men of the Navy serving over four years continuously, imder short-term enlist- ments or extensions of enlistments, are entitled to continuous-service pay at the expiration of the first four years of continuous service, and' at the expiration of each fom* years of contin- uous service thereafter. (27 Comp. Dec, 506.) A man enlisted for three years. May 13, 1896, was honorably discharged May 12, 1899, on account of expiration of enlistment, and reenlisted the next day for a term of four years as prescribed by the" act of March 3, 1899. Held, that he was entitled to the honorable-dis- charge gratuity of four months' pay, as pre- scribed by the act of March 3, 1899, and not to the gratuity of three months' pay as prescribed by section 1573, Revised Statutes, prior to its amendment; further helf], that he was entitled to continuous-service pay of §1.36 per month, as prescribed by the act of March 3, 1899, and not to the continuous-service pay of $1 per month under the Executive orders in force prior to March 3, 1899. (5 Comp. Dec, 929.) Minority enlistment. — A person enlisted in the Navy during minority, and honorably discharged within three months before the ex- piration of his enlistment (as authorized by act of Aug. 22, 1912, 37 Stat., 331), and who re- enlisted for four years the day foUomng his discharge, is entitled to all the benefits accru- ing to an enlisted man for continuous-service pay, although still a minor at the time of his discharge and reenlistment. (20 Comp. Dec, 409.) Extension of enlistment. — An extension of enlistment for one year, as provided in the act of August 22, 1912 (37 Stat., 330), entitles an enUsted man of the Navy to be credited under such extension with continuous-service certificate pay. (19 Comp. Dec, 819.) When an enlisted man of the Nav^y has been detained in the service under section 1422, Revised Statutes, the enlistment in which he is detained may, under the act of August 22, 1912 (37 Stat., 331), be extended before the expiration of the authorized detention, to date not from the expiration of the original enlist- ment but from the end of the period for which he was legally detained . When so extended , the man is entitled to continuous-service-certificate pay. (20 Comp. Dec, 377, modifying 19 Comp. Dec, 819.) The first enlistment of a seaman was extended one year, and during extension his rating was changed to gunner's mate, third class; at ex- piration of extended enlistment he was honor- ably discharged and reenUsted within four months. Held, that on reenlistment he was entitled to four months' honorable-discharge gratuity computed at the rate of pay he was receiving when discharged, which included his rating pay as a gunner's mate, third class; and that he was entitled to continuous-service pay, and 10 per cent increase thereof. (20 Comp. Dec, 361.) An enlisted man of the Navj^ who surrendered from desertion and was restored to duty with- out trial, and who, after serving a period of probation, was allowed to extend his enlist- ment, is entitled under such extended enlist- ment to credit for pay for continuous service, his status being the same as though he had not been absent during his term of enlistment. (25 Comp. Dec., 920.) The extension of enlistment law granted to enlisted men of the Regular Nav^y the right to continuous-service pay; and honorable-dis- charge gratuity is payable if the period for which the extension was made aggregated four full years. (26 Comp. Dec, 33, 34, citing 63 MS. Comp. Dec, 136, Oct. 12, 1912, and 68 MS. Comp. Dec, 1200, Feb. 25, 1914.) Where under the act of August 22, 1912 (37 Stat., 331), an enlisted man of the Navy ac- quires a right to the continuous-service in- crease of pay by extending his enlistment, the right so acquired, except in cases where such extension aggregates four years, terminates upon his discharge at the expiration of the extended period of enlistment; and thereafter the enlisted man acquires a right to continuous- service pay only under the same conditions aa such right is acquired upon reenlistment at the completion of a regular term of enlistment. (26 Comp. Dec, .399.) Where under the act of August 22, 1912, an enlisted man of the Navy extends his enlist- ment, he is entitled to continuous-service pay during the period of extension as if the exten- sion were in fact a reenlistment; but such right to continuous-service pay, except in cases where the extension aggregates four years, terminates upon discharge at the expiration of the extended enlistment; and thereafter, in computing his continuous-service pay in sub- sequent reenlistments, the extension under the said act of August 22, 1912, for less than four years, is to be considered a part of the original enlistment thus extended, and not as a separate and distinct enlistment or as part of any sub- sequent reenlistment. (26 Comp. Dec.,_ 706.) Naval reservists. — An enlisted man in the Navy who, at the expiration of his term of enlistment, is not discharged therefrom, but under the provisions of the act of August 29, 1916 (39 Stat., 556), is transferred to the Fleet Naval Reserve, and who, within four months after the date of expiration of such term of en- listment is discharged from the Fleet Naval Reserve and reenlisted for four years in the Regular Navy, is entitled, in an otherwise proper case, to honorable-discharge gratuity and continuous-service pav. (23 Comp. Dec, 535.) An enlisted man of the Navy who reenlists within four months of the date of his honorable discharge therefrom is not deprived of the gra- tuity authorized under the act of August 22, 889 Sec. 1573. PL 2. REVISED STATUTES. The Navy. 1912, merely because of service in the Naval Reserve during the interval. (24 Comp. Dec, 129.) A transferred member of the Fleet Naval Reserve, whose transfer was made after 20 years' service in the Rep;ular Na\^ and not at the expiration of an enlistment, and who sub- sequently was discharged from the Fleet Naval Reserve and reenlisted next day in the Regular Navy, is not entitled to credit for continuous- service pay. The cases of transferred meml)ers are not covered bv the provision in the act of August 29, 191G (39 Stat., 590, above quoted), with respect to enrolled members of the Naval Reser\'e Force who are discharged therefrom and reenlist in the Regular Na^'y, nor is this case covered by 23 Comp. Dec, 535 (above noted), which related to enlisted men of the Na\'y transferred to the Fleet Naval Reserve at the expiration of a period of enlistment and sub- secjuentlv reenlisting in the Regular Navy. (25 Comp. Dec, 884.) Enrolled men transferred from the Naval Reserve Force to the Regular Navy to serve the unexpu-ed term of their enrollment, in accordance \vith the act of July 11, 1919 (41 Stat., 139, above quoted), are entitled, from the date the transfer is consummated, to in- crease of pay for continuous service, as well as to honorable-discharge gratuity. (26 Comp. Dec, 33.) But such former reservists who reenlist in the Regular Navy for four years within four months after discharge at the ex- piration of their period of enrollment thus served in the Regular Navy are not entitled to a further increase of pay for continuous service in addition to that received during the period of enrollment after transfer to the Regular Navy. (27 Comp. Dec, 695.) Under the act of August 29, 1916 (39 Stat., 590, above quoted), an enlisted man of the Navy who was enrolled in the Fleet Naval Reserve ^^dthin four months after discharge, and who, after discharge from the Fleet Naval Reserve, was again enlisted in the Regular Navy within the prescribed period, is entitled to honorable-discharge gratuity, computed upon the pay he was receiving at the date of his last discharge from the Regular Navy\ (26 Comp. Dec, 489.) The act of July 11, 1919 (41 Stat., 141, above quoted), relating to elisted men of the Navy appointed officers in the Naval Reserve Force and subsequently reenlisting, preserves the status previously acquired by continuity of service, wluch, without the provision, would be lost to such men; but it does not create any right to permanent additions to pay other than those already acquired. (26 Comp. Dec, 565; see note above, under "Continuous- service pay defined. ") Held, specifically, that the act of July 11, 1919 (41 Stat., 141), providing that service per- formed by the men described therein ''shall be regarded as continuous for purposes of contin- uous-service pay" does not entitle such men to an increase in continuous-service pay im- mediately upon reenlistment; that it does not entitle them to increase in continuous-service pay upon the completion of four years from the date of their last previous enlistment in the Navy; that the pay of such men upon restora- tion, including permanent additions previously earned by reason of continuity in service, mil remain unchanged for the period of their enlistment, except as it may be affected by changes in law or rating; and that such men will not be entitled to honorable-discharge gratuity immediately upon reenlistment or upon completion of four years from the date of their last previous enlistment in the Navy. (26 Comp. Dec, 565.) An enlisted man of the Navy who enrolls in the Naval Auxiliary Reserve within four months from date of honorable discharge from the Regular Navy is not entitled to honorable- discharge gratuity upon reenlistment in the Navy \\'ithin four months from date of dis- charge from the Naval Auxiliary Reserve. (27 Comp. Dec, 8.) It has repeatedly been held by the comp- troller that, except for enrolled members of the Fleet Naval Reserve who reenlist in the Reg- ular Navy, no right to honorable-discharge gratuity can accrue to a former member of any class of the Naval Reserve Force except where the reenlistment takes place within four months from the date of last discharge, at expiration of enlistment, from the Regular Navy. (27 Comp. Dec, 8.) Retired enlisted men. — An enlisted man of the Navy, holding the rating of mate, who is placed on the retired list without ha\T.ng copi- pleted the term of his final enlistment, and who thereafter is called into active ser\'ice, does not, after a period of active service equal to the unexpired portion of his last enlistment, become entitled to the continuous-ser\ice increase of pay or the honorable-discharge gratuity. (24 Comp. Dec, 152.) By act of July 1, 1918 (40 Stat., 719), it was provided that a retired enlisted man recalled into active service shall be eligible for promo- tion and ' ' shall be entitled to the pay and bene- fits of continuous service of such rank and for such length of time as he is or has been em- ployed in active ser\dce, and when relieved of active service shall retain upon the retired list the rank and service held by him at the time of such relief, ^vith the pay and allowances of such rank on the retired list." Held, that as continuous-service pay includes in its broadest sense any pay or gratuity dependent upon continuity of ser\ice, retired enhsted men of the Navy who are recalled to active service and who complete a jjeriod of service equal to the unexpired term of their enlistment are entitled, when otherwise qualified, to contin- uous-service pay proper, honorable-discharge gratuity, and pay under General Order No. 34 of 1906 (noted under sec. 1569, R. S.), by wtue of said act of July 1, 1918. (25 Comp. Dec, 440; compare, 26 Comp. Dec, 565, noted above, under "Naval reser\dsts. ") Men furloughed without pay. — An en- listed man furloughed without pay in accord- ance ^vith the act of August 29, 1916 (39 Stat., 580), resumes in all respects his former status upon being recalled to active ser\-ice, and upon discharge at the completion of the unexpired portion of his enlistment is entitled to travel allowance, and upon reenlistment to the honorable-discharge gratuity, if otherwise authorized. (25 Comp. Dec, 231.) 890 The Navy. Pt. 2. REVISED STATUTES. Sec. 1575. An enlisted man furloughed -without pay, and who was not given a discharge at the expiration of his enlistment, hfld, not entitled to con- tinuous-service pay upon reenlistment. (25 Comp. Dec, 328.) Mates. — Mates of the Na\'y are petty offi- cers, and their pay being specially fixed by section 1556 of the Revised Statutes, and any additional pay or allowances being prohibited by section 1558, Re\'ised Statutes, they are not entitled, upon reenlistment in the rating of mate, to the §1.36 increase of pay per month proA'ided therein for enlisted men who reenlist within the pro\isions of section 1573, Re\'ised Statutes, as amended by the act of March 3, 1899. But such mates on reenlistment are entitled to the honorable-discharge gratuity provided by the same law if they reenlist within four months from the date of discharge. (14 Comp. Dec, 457.) An enlisted man of the Navy who was appointed as mate and continued to sen^e as such after the expiration of his term of enlist- ment, without recei\ing a discharge, held, still in the service and entitled to his discharge; and upon reenlisting after such discharge he is entitled to the benefits of continuous-ser\dce pay under article 839, Navy Regulations, 1905. (26 Op. Atty. Gen., 319; but see, 14 Comp. Dec, 457, and 24 Comp. Dec, 152.) The base pay of mates fixed by section 6 of the act of May 18, 1920 (41 Stat., 602), at $126 per month, is not to be increased by 25 per cent thereof, the pro\ision in the act of May 13, 1908 (35 Stat., 128), for a 25 per cent increase in the base pay of mates in the Navy, in effect ha\T.ng been repealed and superseded by the act of May 18, 1920; nor does the act of May 18, 1920, operate to grant to mates in the Navy the right to permanent additions to their base pay that are authorized for enlisted men of the Navy generally, under General Order No. 34 of 1906 (noted under sec 1569, R. S.), or for continuous 8er\T.ce, under section 1573, Re\dsed Statutes, as amended, or for good-conduct medals. (27Comp. Dec,175.) Naval Academy Band. — Under the act of April 12, 1910 (36 Stat., 297), providing for the enlistment of Naval Academy bandsmen and gi\T.ng them '"the same benefits in respect to pay, emoluments, and retirement arising from longe\dty, reenlistment, and length of service as are or may hereafter become applicable to other enlisted men of the Na\y," such bands- men, upon enlistment, are entitled to be credited with all ser\dce as members of said band in computing continuous-service pay, such computation to be made as if actually enlisted and discharged as provided by law in effect when such service was rendered. (17 Comp. Dec, 27.) Sec. 1574. [Crews of wrecked or lost vessels.] When the crew of any vessel of the United States are separated from such vessel, by means of her wreck, loss, or destruction, the pay and emoluments of such of the officers and men as shall appear to the Secretary of the Navy, by the sentence of a court-martial or court of inquiry, or by other satisfactory evidence, to have done theh utmost to preserve her, and, after said ^vreck, loss, or destruction, to have behaved themselves agreeably to the discipline of the Navy, shall go on and be paid them until then- discharge or death.— (17 July, 1862, c. 204, s. 14, v. 12, pp. 608, 609.) See sections 286-290, Revised Statutes, and notes thereto. The act of June 4, 1920 (41 Stat., 824), niakes provision for compensation to be paid to the widow, and if no vvidow to the child or children, and if no widow or child to any other dependent relative, previously des- ignated, of any officer, enlisted man, or nurse on the active list, in case of the lat- ter's death from wounds or disease, not the result of the decedent's misconduct; the amount of such compensation to equal six months' pay at the rate received by the decedent at the time of his or her death. The war risk insurance act of October 6, 1917, Article III (40 Stat., 405), as amended by act of June 25, 1918 (40 Stat., 609), and act of December 24, 1919 (41 Stat., 371), makes provision for compensation, in lieu of pen- sion, to be paid to the family of any person in the naval service who is disabled or dies as the result of injury or disease suffered in line of duty and not caused by his own v\ill- ful misconduct. Subsistence of o£S.cers separated from their vessel. — The provision in the act of March 3, 1897 (29 Stat., 657), making appro- priation for subsistence of officers temporarily absent from their vessel, does not apply to officers separated from their v'essel by reason of its loss or destruction wliile they are in receipt of their sea pay and allowances under section 1574, Revised Statutes. (5 Comp. Dec, 221.) Sec. 1575. [Crews of vessels taken by an enemy.] The pay and emoluments of the officers and men of any vessel of the United States taken by an enemy who shall appear, by the sentence of a court-martial or otherwise, to have done their utmost to preserve and defend their vessel, and, after the taking thereof, to have behaved themselves agreeably to the discipline of the Navy, shall go on and be paid to them until their exchange, discharge, or death. — (17 July, 1862, c. 204, s. 15, V. 12, p. 609.) 54&41°— 22 57 891 Sec. 1676. PL 2. REVISED STATUTES. The Navy. "Enemy" defined. — The first statute pro- vidini:, in terms, for our naval disci|)line is the "act for the govenunent of the Na\v of the United Stutes," of iMarch 2, 1799 (1 Stat., 709). The fourth section of that act (1 Stat., 714) pro\-ided that "all the pay and wages of such officers and seamen of any of the ships of the United States as are taken by the enemy, and, upon inquiry at a court-martial, shall ai)pear by the sentence of the said court to have done their utmost to defend the ship or ships, and since the taking thereof, to have behaved themselves obediently to their superior officers, according to the discipline of the Navy, and the said articles and orders, hereinbefore estab- lished, shall continue and go on as aforesaid," etc. The act of April 23, 1800, enacts (sec. 4, 2 Stat., 45), ' 'that all the pay and emoluments of such officers and men of any of the ships or vessels of the United States taken by an enemy, * * * shall go on, and be paid them until their death, exchange, or discharge." The act of 1799 is almost identical with that of 1800. In the former the phrase stands, "the enemy;" in the latter it is changed to "an enemy." The construction of the act of 1799 might be doubtful, for there is a certain and definitive meaning in the phrase "the enemy. " It is a familiar phrase and means the public enemy, the acknowledged enemy, the enemy of the nation, the enemy with whom we are already at war. But when Congress, in 1800, changed the phraseology, and for this definitive and restricted phrase adopted one so general and comprehensive as to include any and every enemy, they must have done so for some legis- lative purpose. That purpose appears to have been to provide for engagements -ftith pirates, then common in American seas, and to pro\dde for just such cases as the encounter between the Chesapeake and the British ship Leopard. (Straughan v. U. S., 1 Ct. Cls., 324.) John Straughan, a citizen of the United States, enlisted as a seaman on board the United States frigate Chesapeake for one year; the Chesapeake in time of peace was attacked and taken possession of by the British ship Leopard; Straughan, with other seamen, was forcibly carried off by the Leopard on the pre- text that they were deserters; after ^ve years they were released and returned to the Chesa- peake; Straughan did duty for a short time and was discharged; he received no pay for the period that he was held by the British Govern- ment. His widow brought action in the Court of Claims to recover pay for said period . Held, that the Leopard, in her attack upon the Chesa- peake, was "an enemy' ' within the meaning of the fourth section of the act of April 23, 1800 (2 Stat., 45). That act enlarges the act of March 2, 1799 (1 Stat., 709), and the third and fourth sections thereof are intended to include all cases where persons in the naval service are "separated from their vessels" by either wreck or capture. (Straughan v. U. S., 1 Ct. Cls., 324. Note: The third section of the act of April 23, 1800, and the third section of the act of March 2, 1799, were both similar to the pro- visions of section 1574, Revised Statutes, while the foiu'th sections of those acts were similar to the proAdsions of section 1575, Re^ised Statutes.) An act of hostility by a national ship of war is an act of war. The officer who directs it is not liable to the injured parties, but to his own Government. The rule that a principal is not responsible for the tortious acts of his agent forms no part of the law of nations; and a Gov- ernment can not relieve itself of responsibility by disavowing the act of its officer. (Straughan V. U. S., 1 Ct. Cls., 324.) Pay continues after expiration of enlist- ment. — An enlisted man of the Navy captured and separated from his ^-essel in consequence of an attack by a British vessel in 1807, and held by the British Government for a period of five years, when he was released and returned to his vessel, held, entitled to be paid his wages by the United States for the total period of five years, although the enlistment in which he was serving at the time of his capture was for a period of only one year. (Straughan v. U. S., 1 Ct. Cls., 324.) Officer interned in neutral country. — An officer of the Navy interned in a neutral country, if recjuired to hire quarters there for himself, is entitled to commutation thereof as "emoluments" that "shall go on and be paid" as provided by sections 1574 and 1575, RoAised Statutes. If quarters have not been so ac- quired, he is not entitled to commutation. (25 Comp.Dec.,303.) An officer of the Nax-y who without fault on his part is interned by a neutral nation is on active duty within the meaning of the act of April 16, 1918 (40 Stat., 530), and is entitled under said act to commutation of quarters, heat, and light, on account of maintaining de- pendents for the period of his internment. (25 Comp.Dec.,303.) Sec. 1576. [Assignment of wages.] Every assignment of wages due to persons enlisted in the naval service, and all powers of attorney, or other authority to draw, receipt for, or transfer the same, shall be void, unless attested by the commanding officer and paymaster. The assignment of wages must specify the precise time when they commence. — (30 June, 1864, c. 174, s. 12, V. 13, p. 310.) See section 1430, Re\dsed Statutes, and note [ Effect of section.— The assignment of any thereto; see also sections 3477 and 3620, claim against the United States is prohibited Revised Statutes; and see note to section ! by section 3477 of the Revised Statutes. This 1556, Re\dsed Statutes, under "Allot- prohibition is held to include the assignment mentsof pay." of pay. The assignment of wages by enlisted 892 The Navy. Ft. 2. REVISED STATUTES. Sec. 1578. men of the Navy is taken out of the prohibition of section 3477 by section 1576 of the Revised Statutes. (17 Comp. Dec, 666.) Assignment to attorney. — Where an enUsted man of the Navy employed an attorney to defend him on a criminal charge before civil authorities, and in compensation therefor gave said attorney an order on the commanding officer of the vessel on which he served for a portion of the pay due him, such contract is a personal one, not operating to create a liability on the part of the Government, and payment of the amount is not authorized. (25 Comp. Dec, 99.) 1577. [Rations of midshipmen. Superseded.] This section provided as follows: "Sec. 1577. Midshipmen and acting mid- shipmen in the Navy shall be entitled to one ration, or to commutation therefor. " — (28 July, 1866, c. 296, s. 8, v. 14, p. 322. 28 Feb., 1867, c. 100, s. 2, V. 14, p. 416.— Philbrook's Case, 8 C. Cls., 523.) It was superseded by the act of March 3, 1883 (22 Stat., 472), which abolished the grade of midshipman, which was then, under section 1362, Re\'ised Statutes, the eleventh grade of Line officers of the active list of the Navy, a,nd provided that midshipmen then on the active list should "constitute a junior grade of, and be commissioned as, ensigns. ' The grade of junior ensign thus created was abolished by act of June 26, 1884, section 2 (23 Stat., 60; see notes to sees. 1362 and 1512, R. S.). Students at Naval Academy. — Under the Revised Statutes, section 1512, students at the Naval Academy were designated as "cadet midshipmen, " with the exception of a special class, styled "cadet engineers, " under sections 1522-1524, Revised Statutes. By act of August 5, 1882 (22 Stat., 285), the title of all under- graduates at the Naval Academy was changed to "naval cadets, " which was the title of students at the Naval Academy when the grade of mid- shipman was abolished by act of March 3, 1883, above quoted . By act of January 30, 1885 (23 Stat., 291), it was provided that "all enlisted men and boys in the Navy, attached .to any United States vessel or station and doing duty thereon, and naval cadets, shall be allowed a ration, or com- mutation thereof in money, under such limita- tions and regulations as the Secretary of the Navy may prescribe. " This act in so far as it applied to "naval cadets," was amended by act of July 1, 1902 (32 Stat., 686), which changed the title "naval cadet" to "midshipman," which has ever since continued to be the title of students at the Naval Academy. Rations of midshipmen are now authorized by the act of January 30, 1885, as amended by theactof Julv 1, 1902, both above quoted. (By jointres. No."], Dec. 17, 1903, 33 Stat., 581, refer- ence was made to sec. 1577, R. S., as the au- thority for allowing commuted rations to mid- shipmen.) "Midshipmen are entitled to one ration, or to commutation therefor, at all times. " (Art. 4517, par. 1, Navy Regs., 1913; 26 Comp. Dec, 42.) Rations of other officers are provided for by sections 1578 and 1579, Re^'ised Statutes. Commutation price of rations is fixed by section 1585, Re\'ised Statutes, and amend- ments thereto. The naval appropriation act of June 4, 1920 (41 Stat., 825), made appropria- tion for "commuted rations for * * * midshipmen at $1.08 per diem." Sec. 1578. [Rations of other oflacers.] All officers shall be entitled to one ration, or to commutation therefor, while at sea or attached to a sea-going vessel.— (3 Mar., 1851, c. 34, s. 1, v. 9, p. 621. 16 July, 1862, c. 183, s. 19, V. 12, p. 587). Rations of enlisted men: See act of January 30, 1885 (23 Stat., 291), noted under section 1579, Revised Statutes. Section 1578 repealed in part. — Section 1578, Revised Statutes, is repealed by section 13 of the Navy personnel act, providing that commissioned officers of the line of the Navy and of the Medical and Pay Corps shall receive the same pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army. The latter law was intended to cover, and in exact terms provides for, all pay and allowances for naval officers, except forage. The later act was intended as a substitute for the earlier provisions contained in section 1578. (Gibson v. U. S., 194 U. S., 182.) While section 13 of the Navy personnel act of March 3, 1899 (30 Stat., 1004), provided that officers of the line of the Navy and of the Medi- cal and Pay Corps should not be reduced in pay by virtue of said act, there is no provision retaining the allowances of the former law. Morever, section 26 of the Navy personnel act pro\ddes that all acts and parts of acts, so far as they conflict with its provdsions, shall be repealed. The allowance of the preceding statute (sec. 1578, R. S.) can not stand con- sistently with the express pro-vision upon the same subject of the later act. (Gibson v. U. S., 194 U. S., 182.) In Gibson v. United States (194 U. S., 182) it was held that the personnel act did repeal sections 1578 and 1585, Revised Statutes, allowing sea rations, because the later act covered the same subject matter and superseded the provisions of those sections. (U. S. v. Thomas, 195 U. S., 418, 426.) Prior to the passage of the act of March 3, 1899, officers of the Navy were entitled to rations or commutation thereof imder sections 1578- 1579, Revised Statutes. By the Navy person- nel act of that date, the pay and allowances of the line. Medical, and Pay ( 'orps were assimila- ted to those of officers of corresponding rank in the Army, and the pay and allowances of com- missioned warrant officers, created by that act, were assimilated to the pay and allowances then 893 Sec. 1578. Pt. 2. REVISED STATUTES. The Navy. allowed a second lieutenant in the Marine Corps. Aa the allowance of a ration was not an allowance to which olhcers of the Army and Marine Corps were entitled, the said officers of the Navy whose ])ay and allowances were so assimilated were not entitled thci^eto after the passage of the act of March 3, 18!)!); but the right of other officers of the Navy to said allowance was not affected thereby. (15 Comp. Dec, 8.) The act of June 29, 1906 (34 Stat., 554), assimilating the pay and allowances of chaplains in the Navy to those of line officers of the Navy, prevents the allowance of rations to chaplains after the approval of said act. (15 Comp. Dec, 651.) Following the enactment of the Na\'y person- nel act of March 3, 1899, the appropriation acts for the Navy have since provided for commuted rations for officers on sea duty, other than com- missioned officers of the line, Medical and Pay Corps, and chief warrant officers. (26 Comp. Dec, 42.) By the naval appropriation act of June 4, 1920 (41 Stat., 825), appropriation is made for "commuted rations for officers on sea duty (other than commissioned officers of the line, Medical and Supply Corps, chaplains, chief boatswains, chief gunners, chief carpenters, chief machinists, chief pay clerks, and chief sailmakers) at 68 cents per diem, and midship- men at §1.08 per diem * * * ." The law on this subject was incorporatedin article 4517 (1), Navy Regulations, 1913, which pro\ddes: "With the exception of com- missioned officers of the line, Medical Corps, and Pay Corps, and of chaplains and commis- sioned warrant officers, all officers of the Navy are entitled to one ration or to commutation therefor at the rate of thirty cents a day while doing duty on board a seagoing vessel of the Navy. Midshipmen are entitled to one ration, or to commutation therefor, at all times." (26 Comp. Dec, 42.) The officers of the Navy who were entitled to receive a ration prior to the passage of the act of May 13, 1908 (35 Stat., 127), are still entitled to that allowance under the provision of said act prohibiting the reduction of pay or allowances, and also by the express terms of the appropria- tion, "Provisions, Navy," which specifically excludes from its application the said officers who were not entitled to rations under the Navy personnel act. (15 Comp. Dec, 8.) Under the act of May 13, 1908, all officers of the Navy, other than the commissioned officers of the line, M-edical and Pay Corps, and com- missioned warrant officers, are entitled to ra- tions or commutation therefor while on sea duty. (15 Comp. Dec, 8; modified, as to chaplains, by 15 Comp. Dec, 651, noted above.) The act of May 13, 1908 (35 Stat., 127), except as stated in the saving clause thereof, repealed sections 1578 and 1579, Re\dsed Statutes, so far as said sections applied to commissioned officers. (25 Comp. Dec, 125.) The act of May 13, 1908 (35 Stat., 127), pro- vided that all commissioned officers of the Navy shall receive the same allowances, ac- cording to rank and length of service. The effect of this pro\ision was either to confer the right to rations upon commissioned officers not already receiving same or to take away the right to rations from commissioned officers of the class entitled to receive same under section 1578, Revised Statutes, because their allow- ances had not been assimilated to those of the Army by the Navy personnel act of March 3, 1899. (25 Comp. Dec, 125.) In 15 Comp. Dec, 8, it was held that officers of the Navy who were entitled to rations while on sea duty prior to the passage of the act of May 13, 1908, were still entitled thereto be- cause of the pro\ision in said act prohibiting a reduction in pay and allowances. However, it is now held, that a naval constructor ap- pointed to office since the act of May 13, 1908, is not vvithin the saving clause therein prohibit- ing reduction of pay and allowances, and ac- cordingly is not entitled to commutation of ra- tions while on sea duty. (25 Comp. Dec, 125.) Under the act of June 30, 1914 (38 Stat., 403), which created the grade of acting chap- lain, and provided that ' 'while so serving acting chaplains shall have the rank, pay, and allowances of lieutenant, junior gi'ade, in the Navy," held, that acting chaplains are not entitled to rations or commutation thereof, because lieutenants, junior grade, are not entitled thereto. (File 26254-2333, July 23, 1917.) Cominissioned warrant officers. — Neither the Navy personnel act of March 3, 1899 (30 Stat., 1004), which created the grade of chief gunner, nor any other law, authorizes rations or commutation thereof to chief gunners of the Navy. (15 Comp. Dec, 874; see note to sec 1556, R. S., as to pay and allowances of commis- sioned warrant officers.) Marine officers. — An officer in the Marine Corps attached to a seagoing vessel is not entitled to the ration allowed by section 1578, Revised Statutes, to a naval officer so attached. (Reid V. U. S., 18 Ct. Cls., 625.) Warrant officers. — A warrant officer while on duty at sea, or attached to a seagoing vessel, is entitled to rations in kind or to commutation therefor; whichever he accepts precludes him from receipt of the other. (26 Comp. Dec, 42.) A paymaster's clerk of the Navy who, while en route to his place of ser\'ice on the Island of Guam, performed temporary duty on the steamer Supply, is not entitled to reim- bursement of traveling expenses; but under section 1578, Revised Statutes, he is entitled to a ration or commutation thereof. Under the orders issued to him he was temporarily attached to a seagoing vessel and doing duty thereon. If he did not receive rations in kind, he is en- titled to commutation of rations for the period while on said duty. (10 Comp. Dec, 107.) Checkage of difference between actual cost and commuted value of rations. — A warrant officer of the Navy who has been sub- sisted in the general mess is not entitled to commuted rations, nor is he liable for the dif- ference between the monetary value of the ration in kind and the value of a commuted ration. (26 Comp. Dec, 42, distinguishing Comp. Dec, Feb. 18, 1910, noted below.) The accounts of officers subsisted by the gen- eral mess of a vessel while serving temporarily on shore should be checked with the cost of rations issued, as shown by the actual issues during the period covered by their subsistence, 894 The Navy. Ft. 2. REVISED STATUTES. Sec. 1579. and not with the commutation value of the ra- tion as fixed by section 1585, Revised Statutes. (Comp. Dec, P'eb. 18, 1910, 108 S. and A. Memo., 1335, 52 MS. Comp. Dec, 857. Note: This case is distinguished from that considered in 2t) Comp. Dec, 42, noted above, in that the officers referred to in this decision were not entitled to either a ration in kind or to commu- tation in lieu thereof. See 26 Comp. Dec, 42.) For other cases, see note to section 1579, Re\i8ed Statutes. Sec. 1679. [When rations not allowed.] Xo person not actually attached to and doing duty on board a sea-going vessel, except the petty officers, seamen, and ordinary seamen attached to receiving-ships or to the ordinary of a navy- yard, and midshipmen, shall be allowed a ration. — (3 Mar., 1851, c. 34, s. 1, v. 9, p. 621. 28 July, 1866, c. 296, s. 8, v. 14, p. 322. 28 Feb., 1867, c. 100, s. 2, V. 14, p. 416.) See notes to sections 1578 and 1579, Revised Statutes, and see section 1595, Re\dsed Statutes, as to retired officers. This section was amended by act of January 30, 1885 (23 Stat., 291), which proAided "that all enlisted men and boys in the Na\y attached to any United States vessel or station and doing duty thereon, and naval cadets, shall be allowed a ration, or commutation thereof in money, under such limitations and regulations as the Secretary of the Na\y may prescribe. " Enlisted men. — Section 1577, ReAised Statutes, pro\ides that midshipmen shall be entitled to one ration, and section 1578 declares that all officers shall be entitled to one ration; iDut there is no affirmative law giAing a ration to an enlisted man of the Navy. Section 1579 impliedly allows the ration to all men doing duty on seagoing vessels as well as to those within the exceptions mentioned in the sec- tion; and this section is referred to in article 1120 (4), Na\y Regulations, 1909, as author- izing rations. (19 Comp. Dec, 450; but see act of Jan. 30, 1885, quoted above under this section; and see decisions of the comptroller, noted below.) The benefits of section 1579, Revised Stat- utes, granting rations to enlisted men in the Na\'y, were extended by the act of January 30, 1885 (23 Stat., 291). These statutory pro- \dsions limit the allowance of rations to those enlisted men attached to some Gov- ernment vessel or station and doing duty thereon, and to petty officers, seamen, and or- dinary seamen attached to recei\T.ng ships or to the ordinary of a navy yard. (4 Comp. Dec, 690.) The act of January 30, 1885 (23 Stat., 291), extends the right to rations or to commutation thereof in money to all enlisted men and boys in the Na\'y "attached to any United States vessel or station and doing duty thereon. " (5 Comp. Dec, 40.) Enlisted men in the Na\'y are given rations or commutation therefor in money by \irtue of section 1579, Re\-ised Statutes, and the act of January 30, 1885 (23 Stat., 291). Section 1579 limits the right to rations to certain speci- fied classes of persons in the naval service; the act of January 30, 1885, extends the right to all enlisted men and boys in the ser\-ice when attached to a United States vessel or station and doing duty thereon. (5 Comp. Dec, 177.) Yeomen doing duty at the different head- quarters of the Coast Signal Serxice are not attached to any United States vessel or station and doing duty thereon, within the meaning of the act of January 20, 1885, granting rations to certain enlisted men and boys in the NaAy, and they are not entitled to rations or commuta- tion thereof. (4 Comp. Dec, 690.) On reconsideration, held, that the different headquarters of the Coast Signal Ser^dce where enlisted men on duty are armed perform military service, and are subject to military discipline, are stations within the meaning of the act of January 30, 1885, and yeomen at- tached to and doing duty at such stations are entitled to rations or commutation thereof. (5 Comp. Dec, 40.) The naval pro^^.ng gi'ound at Indianhead, Md., is not a station within the meaning of the act of January 30, 1885, which provides for rations for enlisted men in the Naxy attached to a station, and enlisted men stationed there are not entitled to rations or commutation thereof. (5 Comp. Dec, 177.) The act of 1885, while extending the right of rations to those who before were not entitled to it, did not remove the general prohibition contained in section 1579, except in the cases pro\ided for in that act. Taking the two laws together, it appears that only those enlisted men of the Na%'y who are attached to some United States vessel or station and doing duty thereon, or attached to the ordinary of a navy yard, are entitled to rations. Had Congress intended that all enlisted men in the ser\ice should have the benefit of a daily ration or commutation thereof in money, there would have been no occasion to attach the conditions which the law does to such a right. (5 Comp. Dec, 177.) The headquarters of the Marine Corps at Washington, D. C, a place where armed forces are stationed and military duties and discipline are imposed, is a station, witliin the meaning of the act of January 30, 1885, and a hospital steward in the Navy on duty there is entitled to rations or to commutation thereof. (5 Comp. Dec, 561.) The recruiting rendezvous at Chicago, 111., is a naval station within the meaning of the act of January 30, 1885 (Comp. Dec, Jan. 5, 1901, cited in 7 Comp. Dec, 408, 410.) Enlisted men of the Navy are given rations or commutation thereof by \irtue of section 1579, Re\ised Statutes, and the act of Janu- 895 Sec. 1579. I't. 2. REVllSED STATUTES. The Navy. ary 30, 1885. Under these laws, an enlisted man of the Na\y, released from the custody of the ciA-il authorities on hail, who reported at his regular station, the recei^'ing ship at New York, for duty, but was not permitted to enter on duty or to remain at his station, solely because he was on bail, is entitled to commutation of ra- tions during the period of such enforced ab- sence from iiis regular station. If he had been received on board the recei\'ing ship to which he was attached when he reportecf there, he would be entitled to rations or commutation thereof; and the erroneous action of the officer in refusing to receive him on board should not deprive him of his right to which he would otherwise be entitled. (22 Comp. Dec, 589.) Subsistence when absent from vessel or on detached duty. — The naval appropria- tion act of March 3, 1915, under the head of "Pro^^sio^s, Naw," contained the following appropriation: "For * * * subsistence of officers and men unavoidably detained or absent from vessels to which attached under orders (during which subsistence rations to be stopped on board ship and no credit for com- mutation therefor to be given) * * *." (38 Stat., 943.) A similar pro\ision was con- tained in the Naw appropriation act of July 19, 1892 (27 Stat., 243), and in each subsequent act making annual appropriation for the support of the Na\'y. This proAision has been construed as authorizing the payment for subsistence of enlisted men while on duty under orders which require them to be absent from the vessel to which attached or on detached duty under conditions where they are not entitled to rations or commutation thereof. (22 Comp. Dec, 589, citing 10 Comp. Dec, 593, and other decisions.) Petty officers and other enlisted men who may be temporarily absent from the A'essels to which they are attached, under orders and engaged in recruiting service for the time being at places not stations mthin the purA-iew of the act of January 30, 1885 (quoted above under "Enlisted men"), may be subsisted while so temporarily absent and the expense paid from the appropriation, "Pro\isions, Navy." Unless, however, they are attached to vessels under orders and unavoidably aljsent therefrom, they can not be subsisted at the expense of the Government at places not stations within the meaning of the act of June 30, 1885. (7 Comp. Dec, 408.) Under the act of July 1, 1902 (32 Stat., 679), which proAdded for the subsistence of officers and enlisted men of the Navy unavoidably detained or absent from their vessels, a petty officer attached to a vessel at the Mare Island Navy Yard, who was detailed for duty at the Union Iron Works at San Francisco, Calif., and thereby deprived of quarters and rations on board ship, was entitled while so detailed to an allowance in lieu of subsistence; and the word "subsistence," as used in said act, must be construed as comprehending both board and lodging. (10 Comp. Dec, 593.) .Vn enlisted man who is granted leave from a hospital for the convenience of the Govern- ment or for the purpose of more rapidly recu- perating from his illness is in the status of an enlisted man on detached duty and should be allowed the same subsistence as authorized for men on detached duty. (File 26254-2883:2, Oct. 30, 1919, 225 S. and A. Memo., 5026.) It is the duty of the Government to feed and quarter the enlisted men at all times, excej)t when for a man's own pleasure and convenience he absents himself. (26 Comp. Dec, 47.) The language of the annual appropriations for "Pro\isions, Navy," entitles enlisted men of the Navy to be subsisted at the expense of the United States when "unav'oidably detained or absent from vessels to which attached under orders (during which subsistence rations to be stopped on board ship and no credit for com- mutation therefor given)" and when on "de- tached duty." This subsistence, it has been held, may be paid to them directly in the form of a per diem allowance in lieu of the payment of actual expense thereof in each instance to the person supplving it. (Comp. Dec, Mar. 23, 1917, 193 S. and A. Memo., 4198.) An enlisted man of the Navj^ who after under- going treatment at a naval hospital is ordered on sick leave of absence is in a duty status and entitled to the per diem allowance for subsist- ence for such period. (26 Comp. Dec, 47.) Where a man's status before entering a hospi- tal and upon return to duty at the Navy Depart- ment at the expiration of sick leave of absence was that of an enlisted man ' ' on detached duty from vessel or shore station," he is recognized as ''on duty" while on such sick leave of al)sence, and his status for purposes of subsist- ence per diem was not changed from "on detached duty" by being ordered to take sick leave. (26 Comp. Dec, 47.) The provision in the act of March 3, 1897 (29 Stat., 657), for subsistence of officers temporarily absent from their vessels, does not apply to officers separated from their vessel by reason of its loss or destruction, while they are in receipt of their sea pay and allowances under section 1574, Revised Statutes. (5 Comp. Dec, 221.) Where a naval officer under arrest is confined to a vessel, the mess of which he is a member is entitled to reimbursement of his share of the mess expenses incurred on account of subsist- ence. (9 Comp. Dec, 711.) Officers of the Navy on sea duty who are not entitled to a ration or commutation thereof are not entitled to allowance for subsistence when performing temporary duty which requires their absence from the ship to which attached and which does not require their detachment from the ship nor affect their sea-duty status. (Comp. Dec, Jan. 29, 1917, 191 S. and A. Memo., 4145.) The appropriation "Provisions, Navy," for "subsistence of officers and men unavoidably detained or absent from vessels to which at- tached under orders (during which subsistence rations to be stopped on board ship and no credit for commutation therefor to be given)," was intended to authorize the payment of sub- sistence of only such officers of a ship so absent as would have been entitled to a ration or com- mutation thereof at the expense of the Govern- ment had they not been thus absent from their vessels. Accordingly, this appropriation has no application to officers who would not have been entitled to subsistence ration or commutation therefor had they in fact continued on ship- 896 The Navy. Pt. 2. REVISED STATUTES. Sec. 1579. board. (Comp. Dec, Jan. 29, 1917, 191. S. and A. Memo., 4145.) The appropriation under "Pay, miscel- laneous, ' ' for ' ' actual expenses of officers -while on shore patrol duty," and for "relief of vessels in distress; recovery of valuables from ship- ■vrrecks," does not authorize allowance of sub- sistence to officers on shore engaged in salvage operations requiring their temporary absence from their vessels; nor are such officers entitled to subsistence allowance from the appropriation for "Contingent, Navv." (Comp. Dec, Jan. 29, 1917, 19f S. and A."Memo., 4145.) See below, under "Officers temporarily absent from vessel." Officers of receiving ships. — A recei\dng ship at anchor is not "a seagoing vessel" within the meaning of the Revised Statutes, sections 1578 and 1579; accordingly a boatswain in the Navy attached to such ship is not entitled to a ration. (Frary v. U._ S., 24 Ct. Cls., 114.) Section 1579 is a limitation upon section 1578 ; the one gives and the other takes away, and that alone which remains stands as the law. To entitle officers and other persons, with some ex- ceptions, to rations, they must be either at sea or actually attached to and doing duty on a sea- going vessel, whether such vessel be at sea or not. That Congress intended to exclude receiving ships from that designation as seagoing vessels is conclusively shown by the exception in sec- tion 1579, which, after prohibiting the allowance of rations to persons not on a seagoing vessel expects petty officers, seamen, and ordinary seamen attached to receiving ships. An excep- tion is part of what is previously described and not of something else. (Frary v. U. S., 24. Ct. Cls., 114; 21 Comp. Dec, 318.) A mate in the Navy on duty on a receiving ship is entitled, under the decision in Fuller v. United States (noted below), to rations or com- mutation therefor. (Baxter v. U. S., 32 Ct. Cls., 75.) A pavTnaster's clerk attached to and doing duty on a receiving ship is not entitled to rations, notwithstanding that the vessel used as a receiv- ing ship, instead of being a stationary hulk, as was formerly the case is a seaworthy vessel; that it has a regular complement for sea service which, with the vessel, are held in readiness to go to sea on short notice; and that, in addition, she has a complement as a receiving ship for receiving-ship duty which, if the vessel is ordered to sea, remains, being automatically transferred to another vessel designated to act as receiving ship to take the place of the former vessel ordered to sea. The vessel, acting in her capacity as receiving ship, is stationary and does not go to sea, and, so far as her receiving ship complement is concerned, is not a seagoing vessel within the meaning of section 1579, Revised Statutes. (21 Comp. Dec, 314.) Warrant officer on training ship. — \\Tiere a vessel is attached to a naval training station to be used for training landsmen and apprentices, but is also commissioned with all sails bent and kept in readiness to go to sea, a boatswain at- tached to said training station for such duty as the commandant thereof may assign him at the station under his command, who is detailed by the commandant to dutj^ on board said vessel and such other duty as may be assigned to him at said station, and is fimiished quarters and messes on board of such v'essel, is entitled to rations or conunutation thereof while on said duty. (14 Comp. Dec, 233.) Ordinary of a navy yard. — The term "ordinary of a navy yard," as used in Revised Statutes, section 1579, refers to ships laid up in ordinary at a navy yard. The meaning of the section is that petty officers, etc., though not upon a "seagoing vessel," may be allowed a ration if "actually attached to and doing duty " on shipboard. But it does not extend to the apothecarv" of the Navy Academy. (Button v. U. S., 20 Ct. Cls., 423.) An apothecary in the Navy detailed to and doing duty at the marine barracks is not "at- tached to the ordinary of a navy yard" within the meaning of the Revised Statutes, section 1579, and therefore is not entitled to a daily ration. (Herbert v. U. S., 21 Ct. Cls., 53.) See section 1534, Revised Statutes, as to ves- sels laid up in ordinary. Judge Advocate General. — The provisions of section 1579, Revised Statutes, preclude the allowance of a sea ration to the Judge Advocate General, whose duty is in the Navy Depart- ment, the law then in effect providing that the Judge Advocate General shall hav'e the "allow- ances" of a captain in the Navy. (Lemly v. U. S., 28 Ct. Cls., 468.) Mates. — Elates are petty officers, and as such are entitled to rations or conunutation therefor. (U. S. V. Fuller, 160 U. S., 593; see also sec. 1408, R. S., as to status of mates.) The exceptions of mates from section 1569, Revised Statutes, merely indicates that Con- gress, having already fixed their pay by section 1556, such pay need not be fixed by the Presi- dent. But they are still within the exception of "petty officers, seamen, and ordinary seamen attached to receiving ships, " who are inferenti- ally allowed a ration by section 1579. The exception of mates from other petty officers in section 1569 indicates that they are petty officers, and the exception of petty officers from those who are not entitled to rations under section 1579 indicates that as such thev" are entitled to a ration. (U. S. v. Fuller, 160 U. S. 593.) Officers temporarily absent from ves- sel. — See above, under "Subsistence when absent from vessel or on detached duty." Officers of the Navy on sea duty, temporarily located on shore for the convenient and efficient performance of the services required of them under competent orders, are entitled to sea- duty pay but not to commutation of rations under section 1579, Revised Statutes, which authorizes commutation of rations only while actually performing duty on board a seagoing vessel. (27 Comp. Dec, 222.) Under section 1579, a warrant officer is en- titled to commutation of rations only when actu- ally attached to and doing duty on board a seagoing vessel. A pay clerk attached to but not actually doing duty on board a seagoing vessel is not entitled to commutation of rations, although his temporary situation on shore, due to the exigencies of the service, did not change the character of his duty as sea duty; yet the law requires that he must in fact perform duty on board a seagoing vessel to entitle him to a 897 Sec. 1580. PL 2. REVISED STATUTES. The Navy. ration. The word "actually" will not permit a constructive status; and therefore the pay clerk, although on sea duty and attached to a seagoing vessel, while so tenij)orarily located on shore is not entitled to commutation of rations. (Comp. Dec, Sept. 2, 1920, file 26254-3232.) Temporarily in hospital. — See note above, under "Subsistence when absent from vessel or on detached duty." Where an officer attached to a seagoing vessel was entitled to commutation of rations, under section 1578, Rev'ised Statutes, his temporary absence in hospital, under treatment, without being detached from his vessel, did not deprive him of such commutation. (Collins v. U. S., 37 Ct. Cls., 222, 226.) By section 4812, Revised Statutes, for every Navy officer, seamen, or marine admitted into a Na\^ hospital the institution shall be allowed one ration per day during his continuance therein, "to be deducted from the account of the United States -with such officer, seamen, or marine." By the annual naval appropria- tion act, under "Provisions, Navy," appropria- tion is made for "commuted rations stopped on account of sick in hospital and credited to the naval hospital fund." This appropriation shows that the law contemplates a condition where a man may be in hospital while at the same time he is entitled to be credited A\ith a ration, for otherwise there would be no ration to be stopped for the sick, and no appropriation would be necessary if the ration were to be charged against his pay, as provided by section 4812. This appropriation means simply that the commutation of rations to which a person is entitled by being attached to a seagoing vessel is to be transferred to the hospital to which he is sent, and the statute makes an appropriation to pay for the same. Of course the appropriation would not apply where an officer becomes detached from his vessel while in hospital or on being sent there. (4 Comp. Dec, 458.) Under the appropriation for commuted rations for the Navy, a paymaster's clerk at- tached to a seagoing vessel who is temporarily in hospital without being detached from his ship is entitled to commutation of rations, which should be credited to the naval hospital fund in accordance \vith the language of the appro- priation; and no deduction should be made from the pay of such pa^Tuaster's clerk on ac- count of rations credited to the hospital, as provided by section 4812, Revised Statutes. (4 Comp. Dec, 458.) The appropriation for commutation of rations stopped on account of sick in hospital and cred- ited to the naval hospital fund repeals, in effect, the requirement of section 4812, Revised Statutes, that one ration per day shall be de- ducted from the account of every naval officer sent to the hospital, in cases where the ofHcer is not detached from sea duty and is entitled to a ration; but the ration to which the officer would otherwise be entitled by reasons of his sea status goes to the hospital. (4 Comp. Dec, 644.) WTiere an officer of the Navy not entitled to rations is ordered to a hospital for treatment, charges of the value of one ration per day should be made against the pay of such officer. (17 Comp. Dec, 663.) Section 4812, Revised Statutes, has been held to mean that the naval hospital fund is entitled to one ration or the value thereof per day for each person treated in a naval hospital, and when the officer is not entitled to rations the value of one ration is deducted from his pay and credited to said fund. This practice began \\-ith the first law depri^dng officers of rations and has continued to the present time. Under Navy Regulations 1909, article 1129 (1), this practice applies to officers under treatment in foreign hospitals. (17 Comp. Dec, 663.) Although a retired enlisted man on inactive duty is entitled to only $9.50 per month, "in lieu of rations and clothing," and something less than .$9.50 is in lieu of rations, some portion of the amount being in lieu of clothing, hrld, that under section 4812, Re\ised Statutes, the account of such enlisted man, while under treatment in a naval hospital, should be checked 68 cents per day as the value of a ra- tion for each day that he is subsisted as a patient and said amount credited to the institution, the act of July 11, 1919 (41 Stat., 147), having fixed this as the commutation value of a Navy ration until the close of the fiscal vear 1921. (26 Comp. Dec, 784. Note: By said act of July 11, 1919, under "Provisions, Navy," appropriation was made for "commuted ra- tions stopped on account of sick in hospital and credited at the rate of 50 cents per ration to the naval hospital fund.") Court-martial prisoners. — Annual appro- priation, under "Provisions, Navy," is made for "subsistence of * * * general courts- martial prisoners undergoing imprisonment with sentences of dishonorable aischarge from the service at the expiration of such confine- ment," with the proviso, "That the Secretary of the Navy is authorized to commute rations for such general courts-martial prisoners in such amounts as seem to him proper, which may vary in accordance with the location of the naval prison, but which shall in no case exceed 30 cents per diem for each ration so commuted." Sec. 1580. [Navy ration, constituents of.] The Navy ration shall consist of the following daily allowance of provisions to each person: One pound and a quarter of salt or smoked meat, wdth thi'ee ounces of dried or six ounces of canned or preserved fruit, and three gills of beans or pease, or twelve ounces of flour; or one pound of preserved meat, with three ounces of dried or six ounces of canned or preserved fruit and eight ounces of rice or twelve ounces of canned vegetables, or six ounces of desiccated vegetables; together with one pound of 898 The Navy. PL 2. REVISED STATUTES. Sec. 1581. biscuit, two ounces of butter, four ounces of sugar, two ounces of coffee or cocoa, or one-half ounce of tea and one ounce of condensed milk or evaporated cream; and a weekly allowance of one-quarter pound of macaroni, four ounces of cheese, four ounces of tomatoes, one-half pint of vinegar or sauce, one-quarter pint of pickles, one-quarter pmt of molasses, four ounces of salt, one-half ounce of pepper, one-eighth ounce of spices, and one-haK ounce of dry mustard. Seven pounds of lard, or a suitable substitute, shall be allowed for every hundred pounds of flour issued as bread, and such quantities of yeast and flavoring extracts as may be necessary. This section was expressly amended and reenacted to read as above by act of June 29, 1906 (34 Stat., 570). As originally enacted, it read as follows: "Sec. 1580. The Nav-y ration shall consist of the following daily allowance of provisions to each person : One pound of salt pork, with hah a pint of beans or peas; or one pound of salt beef, with half a pound of flour and two ounces of dried apples, or other dried fruit; or three- quarters of a pound of preserv'ed meat, with a half pound of rice, two ounces of butter, and one ounce of desiccated 'mixed vegetables;' or three-quarters of a pound of preserved meat, two ounces of butter, and two ounces of desic- cated potatoes; together with fourteen ounces of biscuit, one-quarter of an ounce of tea, or one ounce of coffee or cocoa, and two ounces of sugar; and a weekly allowance of half a pint of pickles, half a pint of molasses, and half a pint of Ainegar."— (18 July, 1861, c. 7, s. 1, v. 12, p. 264. 14 July, 1862, c. 164, s. 4, v. 12, p. 565.) It had previously been amended and reenacted by act of July 1, 1902 (32 Stat. , 679), to read as follows: "Sec. 1580. The Navy ration shall consist of the following daily allowance of provisions to each person: One pound and a quarter salt or smoked meat, vnth three ounces of dried or six ounces of canned fruit, and three gills of beans or peas, or twelve ounces of flour; or one pound of preser\'ed meat, with three ounces of dried or six ounces of canned fruit, and twelve ounces of rice or eight ounces of canned vegetables or four ounces of desiccated vegetables; together with one pound of biscuit, two ounces of butter, four ounces of sugar, two ounces of coffee or cocoa or one-half ounce of tea and one ounce of con- densed milk or evaporated cream ; and a weekly allowance of one-half pound of macaroni, four ounces of cheese, four ounces of tomatoes, one- half pint of vinegar, one-half pint of pickles, one-half pint of molasses, four ounces of salt, one-quarter ounce of pepper, and one-half ounce of dry mustard. Five pounds of lard or a suitable substitute shall be allowed for e/ery hundred pounds of flour issued as bread, and such quantities of yeast as may be necessary." Refuse of rations is Government prop- erty. — Theoretically, the component parts of the ration are issued to the indi\idual men, and such may originally have been the practice; but it is the practice now, and has been for a long time, to subsist the men by means of the commissaiy department of the vessel. The men have nothing to do with the ration, but only with food cooked and placed on the table for their use as food ; the whole issue and prep- aration is done by persons appointed and paid by the Government for the purpose. Held, that the enlisted men are entitled to use the articles furnished as food to be eaten, but with no interest in the refuse, which remains pubhc property; and that the proceeds from sale of garl)age from the general mess of a recei\ing ship should be covered into the Treasury as miscellaneous receipts. (19 Comp. Dec, 450.) For other cases, see note to section 1581, Re\'ised Statutes. Sec. 1581. [Substitutions in rations, and extra allowance for night watches.] The following substitution for the components of the ration may be made when deemed necessary by the senior officer present in command: "For one and one- quarter pounds of salt or smoked meat or one pound of preserved meat, one and three-quarter pounds of fresh meat or fresh fish, or eight eggs; in lieu of the articles usually issued with salt, smoked, or preserved meat, one and three-quar- ter pounds of fresh vegetables; for one pound of biscuit, one and one-quarter pounds of soft bread or eighteen ounces of flour; for three gills of beans or pease, twelve ounces of flour or eight ounces of rice or other starch food, or twelve ounces of canned vegetables; for one pound of condensed milk or evaporated cream, one quart of fresh milk ; for three ounces of dried or six ounces of canned or preserved fruit, nine ounces of fresh fruit; and for twelve ounces of flour or eight ounces of rice or other starch food, or twelve ounces of canned vegetables, three giUs of beans or pease; in lieu of the weekly allowance of one-quarter pound 899 Sec. 1581. rt. 2. REVISED STATUTES. The Navy. of macaroni, four ounces of cheese, one-half pint of vinegar or sauce, one-quarter pint of pickles, one-{juarter pint of molasses, and one-eighth ounce of spices, tlii'ee pounds of sugar, or one and a half pounds of condensed milk, or one pound of coffee, or one and a half pounds of canned fruit, or four pounds of fresh vegetables, or four pounds of flour. "An extra allowance of one ounce of coffee or cocoa, two ounces of sugar, four ounces of hard bread or its equivalent, and four ounces of preserved meat or its equivalent shall be allowed to enlisted men of the engineer and dynamo force who stand night watches between eight o'clock postmeridian and eight o'clock antemeridian, imder steam." Any article comprised in the Navy ration may be issued in excess of the authorized quantity, provided there be an under issue of the same value in some other article or articles. This section Awas expressly amended and reenacted to read as above by acts of June 29, 1906 (34 Stat., 571), and March 2, 1907 (34 Stat., 1193), the araendrnent made by the act last cited consisting of the addition to section 1.581 of the last paragraph thereof, as above set forth. As originally enacted, it read as follows: " Sec. 1581. The following substitution for the components of the ration may be made when it is deemed necessary by the senior officer present in command: For one pound of salt beef or pork, one pound and a quarter of fresh meat or three-quarters of a pound of preserved meat; for any or all of the articles usually issued with the salted meats, vegetables equal to the same in value; for fourteen ounces of biscuit, one pound of soft bread, or one pound of flour, or half a pound of rice; for half a pint of beans or peas, half a pound of rice, and for half a pound of rice, half a pint of beans or peas. And the Secretary of the Na\'y may substitute for the ration of coffee and sugar the extract of coffee combined with milk and sugar, if he shall believe such substitution to be conducive to the health and comfort of the Navy, and not to be more expensive to the Government than the present ration: Provided, That the same shall be acceptable to the men." — (18 July, 1861, c. 7, ss. 2, 3, 4, v. 12, p. 265. 17 April, 1862, c. 57, s. 4, v. 12, p. 381.) It was previously amended bv act of May 3, 1880 (21 Stat., 86), which proA-ided that "the Secretary of the Navy may substitute for the ration of 'two ounces of desiccated potatoes' six ounces of desiccated tomatoes if he shall believe such substitution to be conducive to the health and comfort of the Navy, and not to be more expensive to the Government than the present ration, provided the same shall be ac- ceptable to the men. In the event the Secre- tary of the NaA^ orders such substitution he is authorized to have sold at i)ublic auction any desiccated potatoes on hand, the proceeds of which sale shall be used in the purchase of desic- cated tomatoes for the use of the Navy." It was again amended by act of July 1, 1902 (32 Stat., 680), which exj^ressly repealed the provision above quoted from the act of May 3, 1880, and reenacted section 1581 to read as follows: "Sec. 1581. The following substitution for the components of the ration may be made when deemed necessary by the senior officer present in command: "For one and one-quarter pounds of salt or smoked meat or one pound of preserved meat, one and three-quarters pound of fresh meat; in lieu of the article usually issued Anth salt, smoked, or preserved meat, fresh vegetables of equal value; for one pound of biscuit, one and one-quarter pounds of soft bread, or eighteen ounces of flour; for three gills of beans or peas, twelve ounces of flour or rice or eight ounces of canned vegetables, and for twelve ounces of flour or rice or eight ounces of canned vege- tables, three gills of beans or peas." The act of July 1, 1902 (32 Stat., 680), also enacted the folloAving clause, but not as a part of section 1581, although, with slight verbal change, embraced in that section as reenacted by tbe act of June 29, 1906: "That an extra allowance of one ounce of coffee or cocoa, two ounces of sugar, four ounces of hard bread or its equivalent, and four ounces of preserved meat or its equivalent shall be allowed to enlisted men of the engineer and dynamo force when standing night watches between eight o'clock postmeridian and eight o'clock antemeridian under steam." A provision similar to that last quoted was enacted by act of May 22, 1917, section 21 (40 Stat., 90), which applied only for the period of the then existing war, and extended said extra allowance to enlisted men of the deck force. See note to section 1584, Revised Statutes. Issue of fruits with fresh meat. — WTien fresh meat is substituted for salt, smoked, or preserved meat, "three ounces of dried, or six ounces of canned or preserved fruit," may be issued therewith; or "nine ounces of fresh fruit " may be substituted for the dried, canned, or preserved fruit. (File 21177-3, Jan. 25, 1911.) "When "one and three-quarter pounds of fresh vegetables" are issued vnth fresh meat as a substitute for ' ' the articles usually issued vnth. salt, smoked, or preserved meat," there may be issued therewith "one and a half pounds of canned fruit, " or such portion thereof as desired, "in lieu of the ircekli/ allowance of one-quarter pound of macaroni, four ounces of cheese, one- half pint of vinegar or sauce, one-quarter pint of pickles, one-quarter pint of molasses, and 900 The Navy. Ft. 2. REVISED STATUTES. Sec. 1585. one-eighth ounce of spices." (File 21177-3, Jan. 25, 1911.) WTien fresh meat is issued with dried, canned, or preserved fruit, or A\ith fresh fruit, in ac- cordance with above ruling, there may also be issued there-n-ith "four pounds of fresh vege- tables," or such portion thereof as desired, "in lieu of the weekly allowance of one-quarter pound of macaroni," and other items specified above. (File 21177-3, Jan. 25, 1911.) Any of the articles above enumerated may be issued in excess of the quantities stated, "provided there be an under issue of the same value in some other article or articles." (File 21177-3, Jan. 25, 1911.) Substitution for butter. — The Navy ration includes a daily allowance to each person of "two ounces of butter." Substitutes are authorized for certain components of the ration, not including, however, butter, as to which, accordingly, no substitution can be made. Held, therefore, that oleomargarine or butterine can not legally be substituted for butter as a part of the Navv ration. (File 19398-34, Apr. 14, 1913; 148 S. and A. Memo., 2682.) Sec. 1582. [Short allowance.] In case of necessity the daily allowance of pro- visions may be diminished at the discretion of the senior officer present in command; but payment shall be made to the persons whose allowance is thus diminished, according to the scale of prices for the same established at the time of such diminution. And every commander who makes any diminution or variation shall give to the paymaster ^^Titten orders therefor, specifying particularly the diminution or variation which is to be made, and shall report to his commanding officer, or to the Navy Department, the necessity for the same.— (18 July, 1861, c. 7, s. 4, v. 12, p. 265.) Sec. 1583. [Rations stopped for the sick.] Rations stopped for the sick on board vessels shall remain and be accounted for by the paymaster as a part of the provisions of the vessels. — (3 Mar.. 1851, c. 34, s. 1, v. 9, p. 621. 22 June, 1860. c. 181, s. 3, V. 12, p. 83.) See act of March 29, 1894 (28 Stat., 47), as to rendition of property accounts, noted under section 236, Revised Statutes, under "III. Limitations upon Jurisdiction." See note to section 1579, Revised Statutes, under "Temporarily in hospital"; and see section 4812, Revised Statutes. Sec. 1584. [Additional ration. Repealed.] This section provided as follows: "Sec. 1584. An additional ration of tea or coffee and sugar shall be hereafter allowed to each seaman, to be provided at his first 'turn- ing out.' "—(23 Mav, 1872, c. 195, s. 1, v. 17, p. 151.) It was expressly repealed bv act of Julv 1, 1902 (32 Stat., 680). Additional rations in special cases were authorized as follows: By act of July 1, 1902 (32 Stat., 680), quoted above under section 1581, Revised Statutes, an extra allowance was authorized for men standing night watches. The said enactment of July 1, 1902, was super- seded and repealed by act of .Tune 29, 1906 (34 Stat., 571), which reenacted same, ^vith a slight verbal change, as part of section 1581 as that section now reads. By act of Mav 22, 1917, section 21 (40 Stat., 90), the following provision was enacted for the period of the war: "That during the continuance of the present war an extra allowance of one ounce of coffee or cocoa, two ounces of sugar, four ounces of hard bread or its equivalent, and four ounces of preserved meat or its equivalent shall be allowed to enlisted men of the deck force when standing night watches between eight o'clock postmeridian and eight o'clock antemeridian." Sec. 1585. [Ration commutation.] Forty cents shall in aU cases be deemed the commutation price of the Navy ration: Provided, however, That after January first, nineteen hundred and eighteen, the commutation price shall not exceed the average cost of the ration during the preceding six months, not to exceed 40 cents. This section was expressly amended and reenacted to read as above bv act of October 6, 1917 (40 Stat., 397). As originally enacted, it read as follows "Sec. 1.585. Thirty cents shall in all cases be deemed the commutation price of the Navv ration."— (15 July, 1870, c. 295, s. 4, v. 16, d. 333.) Other amendments to this section have been made by clauses in the naval appropria- tion acts effective for the ensuing fiscal year. The act of June 4, 1920, (41 Stat., 825), under " Prox-isions, Navy," contained the foUoAving: "For pro\'isions and commuted rations for the seamen and marines, which commuted rations may be paid to caterers of messes, in case of 901 Sec. 1586. 7'/. 2. REVISED STATUTES. The Navy. death or desertion, upon orders of llio comniand- ing officers, X-ommutod rations for officers on sea duty (other than commissioned officers of the line, Medical and Sujjply ('orj)s, _cha]>lains, chief boatswains, chief <;unners, chief carpen- ters, chief machinists, chief pay clerks, and chief sailmakers) at 68 cents per diem, and midshipmen at?!. 08 per diem, and commuted rations stopped on ai'count of sick in hospital and credited at the rate of 68 cents per ration to the naval hospital fund; * * * subsist- ence of * * * Navy and Marine (^orps general courts-martial prisoners undergoing imprisonment with sentences of di.shonorable discharge from the service at the expiration of such confinement: Provided, That the Secre- tarv of the Navy is authorized to commute rations for such general courts-martial prisoners in such amounts as seem to him proper, which may vary in accordance Math the location of the naval prison, but which shall in no case exceed 30 cents per diem for each ration so commuted; and for the purchase of United States Army emergency rations as required." The same act, under "Provisions, Marine Torps" (41 Stat., 831), provided for "com- mutation of rations to recruiting parties, and enlisted men traveling on special duty, at such rate as the Secretary of the Navy may prescribe. " Payment to commissary oflB.cer. — By act of July 1, 1902 (32 Stat., 680), it was provided "that money accruing from the rations of en- listed men commuted for the benefit of any mess may be paid on public bills to the corn- missary officer by the pay officer ha^dng their accounts." (See also clause quoted above, from act of June 4, 1920, as to payment to caterers of messes in case of death or desertion.) Under Navv regulations prior to July 1, 1907 (revoked by G. O. No. 44, Apr. 16, 1907), the commutation value of rations due enlisted men was credited by the pay officer to himself as such, and debited against himself as commis- sary offi<'er in charge of the general mess, com- posed of such enlisted men, the money never actually leaving the pay officer's hands until finally paid out in the shape of mess expend- itures and not being paid over to the individual enlisted men who composed the mess. It was held by the Comptroller of the Treasury that such commutation money in the hands of the pay officer was public money until actually expended by him, and he should be required to account for its proper disbursement to the accounting offi<"ers of the Treasury, the same as any other public money placed in his hands for disl)ursement in his official capacity. (12 (omp. Dec, 678; see also 94 S. and A. Memo., 923, relating to midshipmen's mess, noted under sec. 236, Revised Statutes, under "II. Jurisdiction of accounting officers," sub- heading, "Puldic monev.") The act of July 1, 1902 (.32 Stat., 680). author- izing the payment of money accruing from the rations of enlisted men "commuted for the benefit of any mess," does not extend to an officer's mess on shore. Officers' messes on shore are voluntary, and there is no law or regulation which rccosjuizes them. (Williams V. U. S., 44 rt. Cls., 17.5.) WTiere enlisted men on shipboard were de- tailed to serve an officer's mess on shore, and were subsisted by the mess, and their rations were commuted and paid to the mess, the accounting officers could disallow the payment and compel the officers to refund the money. (Williams v. U. S., 44 Ct. Cls., 175.) The chief petty officers' mess and its organ- ization are provided for in part by Na\-y regula- tions; the duly elected treasurer of said mess is not an agent of the Government, the commuted rations of each member of such a mess, when paid to said treasurer, are no longer public funds, and may be expended by him in such manner as the mess may direct. (File 26262- 3.363, G. C. M. Rec. 41585, C. M. O. 190, 1918, pp. 17-19, holding that the treasurer of a chief petty officer's mess was not guilty of "making false and fraudulent official reports in violation of article fourteen of the Articles for the Govern- ment of the Navy" by reason of his presenting false and fraudulent vouchers in rendering his official statement of the accounts of said mess to the members of the mess and the auditing board, because the fraud was not against the United States.) Commutation defined. — Commutation in the military or naval service is money paid in substitution of something to which an officer, sailor, or soldier is entitled. The principle which governs the commutation of rations in lieu of subsistence is that commutation will not be allowed where subsistence in kind is provided by the Government. (Jaegle v. U. S., 28 Ct. Cls.," 133.) For other cases, see notes to sections 1578 and 1579, Revised Statutes. Sec. 1586. [Medicines and medical attendance.] Expenses incurred by any officer of the Navy for medicines and medical attendance shall not be allowed unless they were incurred when he was on duty, and the medicines could not have been obtained from naval supplies, or the attendance of a naval medical officer could not have been had.— (15 July, 1870, c. 295, s. 17, v. 16, p. 334.) Payment by officers and enlisted men to naval hospital fund is required by sections 1614 and 4S08, Revised Statutes. Duty of Government to provide medical stores and attendance. — ^It is the peculiar province and duty of the NaA^ Department to provide medical stores and attendance for the officers and seamen attached to the naval service; this may truly be said to enter into the contract of the Government wdth persons so employed. For this purpose a Bureau of Medicine" and Surgery is attached to the NaAy Department, and niimerous medical officers appointed. The law, moreover, exacts from every officer and seaman a monthly contribu- tion "from their wages to make provision for the sick and disabled; and these contributions are applied, under the supervision of the President, 902 The Navy. Pt. 2. REVISED STATUTES. Sec. 1586. to the erection and maintenance of marine hospitals and similar institutions for the bene- fit of seamen. (U. S. v. Jones, 18 How., 92.) The exigencies of the service often require the employment of soldiers and sailors at a dis- tance from public hospitals, and when the at- tendance of medical officers can not be obtained ; consequently, in fulfillment of the humane policy of the Government, it frequently be- comes necessary to employ temporarily physi- cians not regularly commissioned, for in this way alone can the department perform the duty assumed by the Government of providing the necessary medical attendance for those who be- come sick or disabled in its service. (U. S. v. Jones, 18 How., 92.) Navy Department's action conclusive upon accounting oflB.cers. — The executive department of the Government to which is intrusted the control of the subject matter must necessarily determine all questions ap- pertaining to the employment and payment of civilian physicians and the exigency which demands their employment. The Secretary of the Navy represents the President and ex- ercises his power on subjects confided to his department. He is responsible to the people and the law for any abuse of the powers in- trusted to him. His acts and decisions on subjects submitted to his jurisdiction and con- trol by the Constitution and laws do not re- quire the approval of any officer of another department to make them valid and conclusive. The accounting officers of the Treasiu^y have not the burden of responsibility cast upon them of revising the judgments, correcting the supposed mistakes, or annulling the orders of heads of departments. (U. S. v. Jones, 18 How., 92.) The propriety of detaching an officer of the Navy for special duty in France, of furnishing him with medical attendance while so em- ployed, and of adopting and ratifying his act in the employment of physicians, under all the circumstances, are all subjects peculiarly within the jurisdiction and discretion of the head of the Navy Department, and not subject to revision by the officers of any other dei^art- ment; and the judgment of the lower coiu-t, in refusing to charge the officer with the amount disbursed by him for medical attendance, should be affirmed. (U. S. v. Jones, 18 How., 92; see also note to sees. 236 and 285, R. S.; and see note to sec. 1558, R. S., under "Main- tenance, attaches.") The act of March 3, 1835, chapter 27, section 2, provided that "the yearly allowance pro- vided in this act is all the pay, compensation, and allowance which shall be received under any circumstances whatever by any such offi- cer," etc. (See sec. 1558, R. S.) The Secre- tary of the Navy transmitted to an officer de- tached on special duty in France a sum of money to be disbursed for medical attendance incurred by such officer. The Treasury De- partment held that this was an allowance prohibited by the law quoted, and charged the amount so disbui-sed by the officer, according to the orders of the Secretary, to the officer's pay account and refused to recognize the author- ity of the Secretary of the Navy in the premises. Held, that the action of the Secretary was con- clusive upon the accounting officers of the Treasury. (U. S. y. Jones, 18 How., 92.) The determination of the Secretary of the Navy that expenses of an officer of the Navy for medicines and medical attendance are incur- red under circumstances entitling him to reim- bursement is conclusive. (2 Comp. Dec, 241.) Where the Navy Department disapproved the claim of an officer for allowance of medical ex- penses, the auditor correctly disallowed the officer's claim. Thereafter, the Secretary of the Navy having reconsidered his action, and recommended allowance of the claim, although the Surgeon General of the Navy still declined to recommend the allowance, held, that this action of the Secretary remove the ground of the auditor's disallowance, and was binding upon all. (2 Comp. Dec, 241.) A claim for expenses incurred by an officer of the Navy for medical attendance or medicines must be accompanied by the certificate of the proper officer of the Navy Department to the facts in order that the accounting officers may determine whether the allowance of the claim is prohibited by section 1586 of the Revised Statutes. (3 Comp. Dec, 250.) Enlisted men. — An enlisted man of the Navy is not entitled to medical treatment at public expense while on leave of absence or furlough. (19 Comp. Dec, 382.) \^Tlere an enlisted man of the Navy, while serving a court-martial sentence, as mitigated by the Secretary of the Navy, does not forfeit his pay and allowances, but receives the same in full as when in a duty status, such enlisted man is not entitled to dental treatment at Government expense while so confined. The general principle is that where an enlisted man in confinement under sentence of court-martial forfeits his pay and allowances, thus being deprived of the means of procuring the things necessary for his health and comfort, the duty devolves upon the Government, at its own expense, to furnish them to the destitute prisoner; but this does not apply where pay of the prisoner is not forfeited. (17 Comp. Dec, 552.) An enlisted man f urloughed without pay for the unexpired portion of his enlistment is nevertheless an enlisted man in the Navy, and as such is entitled, under the regulations, to treatment in Navy hospitals. (File 7657^11, Nov. 18, 1916, and Feb. 5, 1917; see also note to sec. 1417, R. S., under "Enlisted men f urloughed without pay. ") The period of detention beyond the expira- tion of enlistment of an enlisted man of the Navy undergoing treatment in a Government hospital is to be considered as for the con- venience of the Government, and the enUsted man is entitled to pay to and including the date of his actual discharge. (26 Comp. Dec, 447, modifying 26 Comp. Dec, 128.) Students at the Naval Academy, desig- nated as midshipmen, are officers of the Navy within the meaning of section 1586, Revised Statutes, and subject to the same limitations relative to the obtaining of medicines and medi- cal attendance fi'om other sources than the United States as are other officers of the Navy. (9 Comp. Dec, 375.) A clerk to a conunandant of a navy yard is neither an officer, enlisted man, or marine. 903 Sec. 1586. Pt. 2. REVISED STATUTES. The Navy. anil the Secretary of the Navy is not anlhorized, 1 under sections IGl 1 and 48(tS, Revised Statutes, to deduct 20 cents per month from his pay; such a clerk is not entitled to reimbursement for medicines and medical attendance. (1 Comp. Dec, 280.) 1 1 IS the opinion of the Navy Department that members of the naval personnel who are re- (jiiired to pay 20 cents monthly to the Navy hospital fund should be entitled to medical attendance and maintenance, or, in the absence thereof, reiml)ursement for the amount ex- pended for the ])urpose; and, conversely, that any member of the naval personnel who is not entitled to medical supplies or reimbursement therefor should not be required to pay 20 cents monthlv to the hospital fund. (See 1 Comp. Dec, 280, 290.1 An officer of the Marine Corps injured while enpiaged in an unusual and dant^erous amusement is not entitled to reimbursement for medical expenses incurred by him by reason of such injuries, notwithstandinjT that at the time he was in a duty status as distinguished from being absent with leave or %vithout leave. (10 romp/ Dec, 63.5.) Officer on sick leave. — Section 1586, Re- Adsed Statutes, prohibits the payment of medi- cal expenses of an officer incurred while on sick leave. (12 Comp. Dec, 28.) Accounts for medical attendance by the private physicians of officers or soldiers while on leave of absence have never been allowed. (5 Comp. Dec, 363.) If an officer or soldier chooses to put himself out of the reach of medical attendance which the government has provided in hospitals, etc., he can not place the Government under obliga- tions to pay any expense he may incur for med- ical attendance. (5 Comp. Dec, 363.) See also, above, under "enlisted men." Officer residing at distance from sta- tion. — ^^^lere an officer of the Navy places him- self away from his regular station for his o\\ti convenience and comfort, so that the medical department at the station is not available for his treatment in case of illness, such officer can not be reimbursed any expense incurred by him for private medical attendance or for medi- cal supplies. (17 Comp. Dec, 472.) When an officer takes up his residence out- side and so far away as to render it inconvenient or impracticable for a naval medical officer to attend him, the Government is under no obli- gation to pay for the employment of a private physician or for medicines. (5 Comp. Dec, 363.) Naval medical officer available. — Where the attendance of an Army surgeon could be procured, the Government is not liable for the expenses of a sick oflicer in a private hospital, though he was carried there involuntarily and though his accotmt was approved by the Sur- geonGeneral. (Prestcm -j'.U.S., 37 Ct. Cls., 39.) Section 1586 prohibits the allowance of a physician's claim for attendance upon an officer of the Navy for any time after the services of a naval surgeon have been pro^'ided and tendered to the officer. (3 Comp. Dec, 2.50.) Special treatment. — Payment of expenses incurred by an officer of the Navy for medical attendance while in a duty status may be authorized, notwithstanding the attendance of a medical officer of the Navy could have been had, if in the judgment of the NaAy Department the available medical officers of the Navy were not sufficiently skilled to properly treat the disease with wliich the officer was afflicted. (12 Comp. Dec, 28.) In cases of claims for treatment of officers by physicians outside the Medical Corps, it is not understood that the law permits the allowance of such expenses when incurred upon the mere volition of the officer who seeks the treatment and which was in his judgment necessary; but such treatment by doctors outside the ^tedical Corps in serious cases requiring special treat- ment, and where medical officers are actually available, should l)e under the orders and direction and control of the medical establish- ment of the department, and the claim for the expenses ap])roved bv the Secretarv of the Navy. (12 Comp. Dec, 28.) Private sanitarium. — WTiere by proper authority an officer of the Navy was removed to a private sanitarium for treatment, there being no naval hospital to which he could be sent with safety, payment for medicines, care, main- tenance, and medical attendance upon such officer while in said sanitarium is authorized. (9 Comp. Dec, 761.) Dental treatment. — An officer of the Naw may be reimbursed the expenses of dental treatment when such treatment is of a surgical nature required for repairing an injury to the teeth resulting from an accident while in the performance of duty, provided it is shown that the services of a naval dental officer or of a naval medical officer, properly qualified and equipped, were not available. (21 Comp. Dec. 624.) Prior to the act of August 22, 1912 (37 Stat., 344), authorizing the establishment of a Dental Corps in the Navj^, no proAision was made for furnishing dental ser\ace to the personnel of the Navy. Medical attendance, however, has been furnished for years, not only through the officers of the Medical Corps and the hospitals provided and maintained for that purpose, but the employment of private physicians and hospitals in certain cases has been authorized where the regular medical officers and naAal hospitals were not available. (19 Comp. Dec, 5.50.) Medical attendance -within the meaning of the laws and regulations relating to the Navy has not been construed to include dental treatment. (19 Comp. Dec, 550.) By act of August 22, 1912, the Government has undertaken to furnish dental treatment to the personnel of the naval service, but only in the manner and to the extent therein provided. Neither said act nor any other law makes pro- vision for the employment of ci\dlian dentists; and Congress has made no appropriation for such purpose. Accordingly, held, that ciA^lian dentists can not legally be employed where naval dental officers are not available. (19 Comp. Dec, 550.) See also above, under "Enlisted men." For other cases, see notes to sections 1579, Revised Statutes, under "Temporarily in hos- pital"; and to section 1571, Re\ised Statutes, under "Officers temporarily absent from their ship." 904 The Navy. Pt. 2. REVISED STATUTES. Sec. 1587. Sec. 1587. [Funeral expenses.] No funeral expense of a naval officer who dies in the United States, nor expenses for travel to attend the funeral of an officer who dies there, shall be allowed. But when an officer on duty dies in a foreign country the expenses of his funeral, not exceeding his sea-pay for one month, shall be defrayed by the Government, and paid by the paymaster upon whose books the name of such officer was borne for pay. — (15 July, 1870, c. 295, s. 17, V. 16, p. 334.) of the recent explosion on the United States steamship Missouri, to be expended at the discretion of the Secretary of the Navy'." Section 1587, construed. — An officer of the Navy is not entitled to mileage or reim- bursement of traveling expenses for travel performed in obedience to an order directing him to attend the funeral of an officer who died in the United States. (11 Comp. Dec, 181.) By act of July 15, 1870 (now sec. 1587, R. S.), the allowance of funeral expenses of a naval officer who died in the United States is pro- hibited; but such expenses are allowable where the officer died in a foreign country, to an amount not exceeding his sea pay for one month. (13 0p. Atty. Gen., 341.) The fact that the officer had started on a foreign ser\ace, but died in a port of the United States at which his vessel had touched, does not relieve the case from the prohibition of the statute. (13 Op. Atty. Gen., 341.) The law makes the liability of the Govern- ment for funeral expenses to depend on the place where the officer dies and not upon the nature of his service. (13 Op. Attv. Gen., 341.) Section 1587 was clearly intended to prohibit the payment of any and all expense of travel to attend the funeral of a naval officer who dies in this country. There is no exception or reserA'ation in the statute: it can make no difference in what capacity the officer attends the funeral, whether in connection with a battalion of cadets or as an indiAidual, the prohibition is equally effective and the ex- pense can not be allowed. (11 Comp. Dec, 181.) An officer of the Navy who died while on duty on the high seas must be regarded as hav- ing died in a foreign country within the mean- ing of section 1587, ReA-ised Statutes; and pay- ment of his funeral expenses, not to exceeclone month's sea pav, is authorized bv that section. (6 Comp. Dec,' 620.) Officers of the NaAy ordered for duty in con- nection -with the funeral of a deceased officer are not entitled to reimbursement of expenses incurred bv them in hiring horses. (2 Comp. Dec, 511.)" The act of July 15, 1870 (16 Stat., 354), in- corporated into section 1587, ReAdsed Statutes, repealed article 1503 of the Navy Regulations of 1870, wherein it had been attempted to pro- Aide that the necessary funeral expenses of all persons who should die in the serAice of the Navy, whether in the United States or in foreign countries, should, when sanctioned by the Navy I)epartment, be borne by the Govern- ment. "(3 Comp. Dec, 154.) By annual appropriation acts for the naval service, under "Bureau of ]\iedicine and Sui'gery," appropriation is made for "care, transportation, and burial of the dead, including officers who die -nithin the United States, and supernumerary patients who die in naval hospitals." (See act June 4, 1920, 41 Stat., 823.) By act of June 4, 1920 (41 Stat. , 823), appropria- tion was made "to enable the Secretary of the Na\^^ in his discretion, to cause to be transferred to their homes the remains of officers and enlisted men of the Navy and Marine Corps, of members of the Nurse Corps, of civilian officers and crews of naval auxiliaries, and of officers and en- listed men of the Naval ]\Iilitia and Na- tional Naval Volunteers and the Naval Reserve Force when on active service ■with the Navy, who die or are killed in action ashore or afloat, and also to enable the Secretary of the Navy, in his discretion, to cause to be transported to their homes the remains of civilian employees who die outside of the continental limits of the United States," with a proviso that said appropriation "shall be available for pay- ment for transportation of the remains of officers and men who have died while on dutv at anv time since April 21, 1898, and shall be available until June 30, 1922." By act of June 4, 1920 (41 Stat., 832), appropria- tion was made, under "Contingent, ISIarine Corps," for "'funeral expenses of officers and enlisted men, and retired officers on active duty during the war and retired en- listed men of the Marine Corps, including the transportation of bodies and their arms and wearing apparel from the place of demise to the homes of the deceased in the United States." By act of June 30, 1914 (38 Stat., 406), it was provided, "That the Secretary of the Navy be authorized, at his discretion, to issue free of cost the national flag (United States national ensign No. 7) used for draping the coffin of any officer or enlisted man of the NaAy or Marine Corps whose death occurs while in the service of the United States NaA^ or Marine Corps, upon request, to the relatives of the deceased officer or enlisted man or upon request, to a school, patriotic order, or society to which the deceased officer or man belonged." By act of April 27, 1904 (33 Stat., 403), a special appropriation was made "to pay for the funeral expenses, including the disinter- ment, proper care, preparation, and trans- portation to their homes of the remains of the officers and men who died as the result 905 Sec. 1588. Pt. 2. REVISED STATUTES. The Navy. Officers of Marine Corps — Payment of the cast of traiiHportinc: the remains of a deceased officer of tlie Marino Corps from the Island of Gnam. where he died, to Mobile, Ala., is not authorized. (G Oonip. r>ec., 677.) Section 15S7 has been construed as not ap- plicable to ofiicers of the Marine Corps. Also, the ai)propriations made for "funeral expenses of marines" have been construed as referring only to enlisted men. (6 Comp. Dec, 677. But see appropriations quoted above, under this section . ) Enlisted man fui-loughed -without pay — The Navy Department is not authorized to defray the 1)urial expenses of an enlisted man who died while furloughed, without pay, under the act of August 29, 1916. (23 Comp. Dec, 504; see note under sec. 1417, R. S.) Sec. 1588. [Pay of retired officers.] The pay of all officers of the Navy who have been retired after forty-five years' service after reacliing the age of sixteen years, or who have been or may be retired after forty years' service, upon their own application to the President, or on attaining tlie age of sixty- two years, or on account of incapacity resulting from long and faithful service, from wounds or injuries received in the line of duty, or from sickness or ex- posure therein, shall, when not on active duty, be equal to seventy-five per centum of the sea-pay provided by this chapter for the grade or rank which they held, respectively, at the time of their retirement. The pay of all other officers on the retired list shall, when not on active duty, be equal to one-half the sea-pay provided by this chapter for the grade or rank held by them, respectively, at the time of their retirement. — (15 July, 1870, c. 295, s. 5, v. 16, p. 333. 3 Mar., 1873, c. 230, s. 1, v. 17, p. 555.) s. Amendment to this section was made by act of May 30, 1908 (35 Stat., 501), providing that "in computing the pay of retired officers of the Navy, the 10 per cent addi- tional pay allowed for sea duty or for shore duty beyond the continental limits of the United States shall not be inducted " ; by act of May 13, 1908 (35 Stat., 128), pro- ^'iding that any officer retired on his own application, after 30 years' service, shall receive " three-fomths of the highest pay of his grade"; by act of August 29, 1916 (39 Stat., 579), fixing the age of retirement at 64 years, excei)t in the cases of captains, commanders, and lieutenant commanders who become ineligible for promotion on account of age (56, 50, or 45 years, respec- tively), who shall be retired at said ages "on a percentage of pay equal to two and one-half per centum of their shore duty pay for each year of service," their total retired pay, however, not to exceed 75 per cent of the shore-duty pay they were entitled to receive while on the active list; and by act of August 22, 1912 (37 Stat., 328), providing that any officer to whom it ap- plied should receive "three-fourths the sea pay of the grade from which he is retired." Retirement of officers with the rank and pay of agrade higher than thatheld l)y them on the active list at date of retirement is author- ized by the following laws: Acts of March 3, 1899, section 11 (30 Stat., 1007), .Time 29, 1906 (34 Stat., 554), and March 3, 1909 (35 Stat., 753), on accoimt of civil war serv- ice; act of March 4, 1911 (36 Stat., 1267), on accouxit of failing physically for promo- tion, due to disability incurred in line of duty, which, imder acts of August 29, 1916 (39 Stat., 579), and July 1, 1918 (40 Stat., 118), shall not apply to officers of the rank of lieutenant commander and above; sec- tion 1481, Revised Statutes, relating to staff reaching which laws are no longer in officers retired after specified length of serv- ice; and by section 1473, Revised Stat- utes, and laws noted under section 421, ReAised Statutes, relating to chiefs of biu"eaus. See note to section 1444, Revised Statutes, imder ' ' Historical note, " as to laws relating to the retirement of officers ' ' after forty-five years' 8er\-ice after reaching the age of sixteen years, effect. The pay of officers on the retired list, ^Tay 13, 1908, was, under the act of that date (35 Stat., 128), fixing new rates of pay for officers of the Navy, to be based on the pay therein provided for officers of correspond- ing rank and serWce on the active list. The rank and pay of officers on the retired list was to be the same that they are when such officers shall be retired, according to a clause in the act of August 5, 1882 (22 Stat., 286), which also prohibited promo- tion or increase of pay on the retired list. Theactof July 1, 1918(40Stat., 717), authorized the promotion of any officer on the retired list, employed on active duty in time of war or national emergency, "to the grade or rank, not above that of lieutenant com- mander in the Na\^ or major in the Marine Corps," which the total active service of such officer, both prior and subsequent to retirement, in the manner rendered by him, would have enabled him to attain in due com'se of promotion had such service been rendered continuously on the active list dming the "period of time last past," and provided that officers so promoted to such higher grade or rank "shall thereafter receive the pay and allowances thereof." TheactofJimelO, 1896 (29 Stat., 361), provided that no payment shall be made from ap]3ro])riations made by Congress to any officer in the Navy on the retired list while 906 The Navy. Pt. £. REVISED STATUTES. Sec. 1588. such officer is employed by any person or company furnishing naval supplies or war material to the Government. Pay based on "grade" at time of retire- ment. — The "grade" of an officer in the Navy is his official station, by which are regulated his powers, duties, and pay. His pay may 1)8 further governed by his time of service within a grade, either in fact rendered within the grade or constructively performed therein through the force of statutes. (Roget i;. U. S., 148 U.S., 167, 171.) The office of professor of mathematics is a grade. (Roget v. V. S., 148 U. S., 167, 171.) The periods of five years' ser\ice mentioned in Re\ised Statutes, section 1556, for increase of pay, are "grades" within the meaning of section 1588, fixing the pay of retired officers at 75 per cent of the sea pay of the grade or rank held at the time of retirement. (Thornley v U. S., 18 Ct. Cls., Ill; 113 U. S., 310.) The word "grade" in section 1588 refers to the di^isions of officers into five years' periods of serAice. An officer retired in the thii-d period of five years' ser\-ice is entitled to 75 per cent of the sea pay of that grade, and not to 75 per cent of the highest pay of a chief engineer who has served o^'er 20 years. (Rutherford v. U. S., 18 Ct. Cls., 339.) In the Na\'y there are grades for duty, for honor, and for pay, some by name and others by description. A lieutenant has the gi-ade of his class, and also a grade in his class upon which his pay is fixed, depending upon length of serA-ice. The word "grade" in section 1588 refers to the diAT-sion of officers into periods of eer^ice. A lieutenant retired in the first five years of service, because not recommended for promotion, is entitled to one-half of his sea pay at the time of retirement, and no more. (McClure V. U. S., 18 Ct. Cls., 347.) ' ' Grade " and ' ' rank " are used synonymously in section 1588; the word "gi'ade" is used by Congress as a general term, indicating any marked distinction fixed by law among officers which would be expressed in their commission, title, or pay, not excluding chiefs of bureaus having a certain rank. (31 Op. Atty. Gen., 505, holding that an officer retired while serving as chief of bureau in the Navy Department, or Judge Advocate General of the Navy, is entitled to the rank attached by law to such office.) For other cases, see notes to sections 421, 1362, 1457, and 1480, Revised Statutes, relating to definition of the word "grade." Pay based on higher grade than that held on active list. — Under section 11 of the Navy personnel act of March 3, 1899, an officer retired on September 26, 1899, was entitled to the advancement therein authorized on the date of his retirement, and not on the date of the department's notice to him of November 26, 1907. (26 Op. Atty. Gen., 599.) Mates whose names are borne on the retired list of officers of the Navy in accordance with the act of August 1, 1894 (28 Stat., 212), are officers of the Navy and are placed upon the same footing as warrant officers under the act of June 29, 1906 (34 Stat., 554), which entitles such mates, otherwise eligible, to the rank and retired pay of the next higher grade in the service, viz, that of the lowest grade of warrant officers. (26 Op. Atty. Gen., 433, 599.) A captain in the Navy who had served during the civil war, and was retired, pur- suant to section 1444 of the Revised Statutes, with the rank and three-quarters of the sea pay of the next higher grade in accordance with section 11 of the Navy personnel act of March 3, 1899, was entitled only to the pay of rear admiral of the lower nine. Under section 11 he passes on retirement into and not over the next pay grade, wliich is that of the nine lower numbers, the rank of rear admiral being divided into two pay grades. (Gibson v. U. S., 194 U. S., 182.) The Navy personnel act of March 3, 1899, section 13, makes no distinction in the rank of rear admirals, but does in theu- pay; and the provision of section 11 of that act, which author- izes the retirement of certain officers with the rank and retired pay "of the next higher grade, " must be interpreted with reference to that distinction. Accorchngly, held, that a captain on the active list, retired under section 11 with the retii'ed pay of the next higher grade, was entitled only to the retu-ed pay of rear admiral of the lower half. Pay and not rank is the paramount purpose of the law, and the grades of pay must therefore be regarded as of paramouJit importance. (Lowe v. U. S., 38 Ct. Cls., 170.)_ A mate retired as a master (now lieutenant, junior gi'ade) in 1871 should be credited under the naval appropriation act of March 3, 1883 (22 Stat., 493), v\ith his actual service as mate, as of the time when he was retired; held, there- fore, that he is entitled to the pay of a master retii'ed in the second five years of service. (Bradbury t'. U. S., 20 Ct. Cls., 187.) An officer who qualified and was nominated by the President for promotion to the grade of rear admiral to fill a vacancy occurring Feb- ruary 18, 1886, but who was retired on account of age prior to his confirmation by the Senate, may, if subsequently confirmed, be commis- sioned as a rear admiral with rank from date of v^acancy and with the retired pay of that grade. (18 Op. Atty. Gen., 393.) The act oi March 4, 1911 (36 Stat., 1267), which provides that if an officer of the Navy should fail in his physical examination for pro- motion, and be found incapacitated for service by reason of physical disability contracted in the line of duty, he shall be retired with the rank to which his seniority entitled him to be promoted, does not authorize retirement with a higher rank than that the officer would have had if he had successfully passed his examina- tion; and the rank with which the officer is to be retired is not determined by the date of the action of the retiring board. (Tappan v. U. S., 54 Ct. Cls._, 76.) A captain in the Navy became due for pro- motion by seniority to rear admiral; he failed in his physical examination, because of disa- bility incurred in the line of duty; subsequent- ly he was retired in consequence of the action of a retiring board. Had he qualified for pro- motion he would have been commissioned as a rear admiral on the active list, and would have been in the lower half or second nine of the 54641°— 22- -58 907 Sec. 1588. Pt. 2. REVISED STATUTES. The Navy. graral of any officer now or hereafter carried as an additional number in the gi-ade or with the rank of colonel shall be held to fill a vacancy in the grade of brigadier general." (This provision does not apply to the officer serving as Major General Com- mandant and carried as an additional number in his grade under the act of December 19, 1913, 38 Stat., 241, quoted above, under "Number and grades of commissioned officers." (See note to sec. 1601, R. S.) The said act of August 29, 1916 (39 Stat., 611), further provided that within two years from the date thereof certain officers retired for physical disability might be transferred to the active list of the Marine Corps, and that any officer so transferred "shall be carried as an additional number in the grade to which he may be transferred or at any time thereafter promoted." The said act of August 29, 1916 (39 Stat., 582, 586), authorized a Naval Flying Corps, to be composed in part of 150 officers, detailed from the line of the Navy and from the IMarine Corps, or appointed to the line of the Navy or Marine Corps, for aeronautic duties only, and 350 enlisted men, the said officers and enlisted men to be in addition to the total nmnber of officers and enlisted men which ' ' is now or may hereafter be provided by law for the other branches of the naval service." Marine Corps Reserve. — ^The act of August 29, 1916 (39 Stat., 593), created a Marine Corps Reserve, "to be a constituent part of the Marine Corps and in addition to the authorized strength thereof, ' ' under the same provisions in all respects, except as may be necessary to adapt the said provisions to the Marine Corps, as those providing for the Naval Reserve Force in the same act. (For amendments to said act of Aug. 29, 1916, see acts of Mar. 4, 1917, 39 Stat., 1174, Apr. 25, 1917, 40 Stat., 37, Apr. 25, 1917, 40 Stat., 38, May 22, 1917, 40 Stat., 84, July 1, 1918, 40 Stat., 708-712, and June 4, 1920, 41 Stat., 834.) Marine Corps instruction camps. — By act of August 29, 1916 (39 Stat., 614), the Secretary of the Navy was authorized to establish camps of instruction for volunteer citizens designated for such training. Computing number of ofl3.cers. — The naval appropriation act of August 29, 1916 (39 Stat., 577), proiides that "whenever a final fraction occurs in computing the authorized number of any corps, grade or rank in the naval service, the nearest whole number shall be regarded as the authorized number: Fro- vidcd, That at least one officer shall be allowed in each grade or rank." Held, that the words "naval service" in this provision include the Marine Corps, although the method of com- puting by percentages the authorized number of commissioned officers in that corps was pre- scribed in a different part of the act. This 920 The Navy. Pt. 2. REVISED STATUTES. Sec. 1598. concliision is strenginened by the fact that Congress in the same act elsewhere made specific reference to the "naval service" wdth indisputable application to the Marine Corps, in connection with the reinstatement of "former officers of the Marine Corps who resigned from the naval service in good stand- ing." (File 28687-5, Aug. 29, 1916. See also note to sec. 1G21, R. S.) Reduction in nttmber of oflS.cers. — Con- gress might disband the whole Marine Corps without "any violation of the Constitution of the United States and without any breach of contract with the officers of the corps. If they might do the greater act, they might certainly do the less. If they might disband wholly, they may siu-ely disband partially, without any imputation of their having transcended either their power or their duty. They have disbanded the majors; that grade exists no longer; and with the grade falls the claim to pay. (1 Op. Atty. Gen., 489, 490; see also note to sec. 1604, R. S.) Distribution of enlisted men. — Under the naval appropriation act of June 4, 1920 (above quoted), fixing the permanent strength of the active list of enlisted men in the Marine Corps, held that the words ' 'in the same proportion as provided under existing laws" continue the grades existing at the date of the approval of said act and definitely establish the number in each; and the Secretary of the Navy is without authority to increase the numbers in said grades. (File 1112-1617, June 22, 1920.) The further pro\'ision in said act, authorizing the Secretary of the Na\-y to establish grades and ratings, does not modify the provision first above quoted, except in so far as it authorizes the Secretary of the Navy to estaljlish such new grades and ratings in Ihe Marine Corps as may be necessary for the proper administration of the enlisted personnel thereof, and assign thereto such numbers of enlisted men as he may deem expedient. In the event of the Secretary of the Navy not availing himself of the authority to establish new gi'ades and ratings, those pro\ided for under existing law prior to June 4, 1920, will continue as before. (File 1112-1617, June 22, 1920.) Grades established for pay purposes. — See note to section 1612, Re\ised Statutes. Status of Marine Corps; part of the Navy. — See note to section 1621, Revised Statutes. Sec. 1597. [When number of officers may be exceeded. Obsolete.] This section provided as follows: "Sec. 1597. The provisions of the preceding section shall not preclude the advancement of any officer to a higher grade for distinguished conduct in conflict with the enemy, or for extra- ordinary heroism in the line of his profession, as authorized by sections sixteen hundred and five and sixteen hundred and seven." — (25 July, 1861, c. 19, s. 2, v. 12, p. 275. 16 July, 1862, c. 183, s. 9, V. 12, p. 584. 24 Jan., 1865, c. 19, s. 2, V. 13, p. 424.) It was rendered obsolete by the Na"\y per- sonnel act of March 3, 1899, section 18 (30 Stat., 1008), which superseded "the provisions of the preceding section," referred to herein, namely, section 1596, Re\ised Statutes, by making new and complete provisions as to the number of officers who should compose the active list of the Marine Corps. Other enactments on this subject are con- tained in the following statutes: Act March 3, 1901 (31 Stat., 1108), June 16, 1906 (34 Stat., 296), and August 29, 1916 (39 Stat., 609), noted under section 1596, Revised Statutes, "Addi- tional officers and enlisted men." See also section 1606, Revised Statutes. By act of August 29, 1916 (39 Stat., 609, 610), quoted under section 1596, Revised Statutes, under "Number and grades of commissioned officers," new provisions were enacted as to the number of officers allowed in the various grades of the IVIarine Corps, and it was therein pro\ided that the total number of commissioned officers therein authorized, was "exclusive of officers borne on the Navy list as additional numbers." Officers advanced under sections 1605 and 1607, Revised Statutes, become additional numbers in grade under the acts of March 3, 1901, and June 16, 1906, above cited. See notes to sections 1363 and 1364, Revised Statutes. Sec. 1598. [Staff separate from line. Superseded.] This section provided as follows: "Sec. 1598. The staff of the Marine Corps shall be separate from the Une." — (30 June, 1834, c, 132, s. 6, v. 4, p. 713. 2 Mar., 1847, c. 40, s. 3, V. 9, p. 154.) It was superseded by the act of August 29, 1916 (39 Stat., 610), which abolished the permanent staff system in the Marine Corps and substituted therefor a system of temporary details from the line, as follows: "No further permanent appointments shall be made in any grade in any staff department. Any vacancy hereafter occurring in the lower grade of any staff department shall be filled by the detail of an officer of the line for a period of four years unless sooner relieved; any vacancy hereafter occurring in the upper grade of any staff department shall be filled by the appoint- ment of an officer with the rank of colonel holding a permanent appointment in the staff department in which the vacancy exists, or of some other officer holding a permanent appoint- ment in such staff department in case there be no permanent staff officer with the rank of colonel in that department, or of a colonel of the line in case there be no officer holding a permanent appointment in such staff depart- ment. Such appointments shall be made by the President and be for a term of four years, and the officer so appointed shall berecom- missioned in the grade to which appointed." The said act of August 29, 1916 (39 Stat., 610), also made pro\'ision for transfers of per- manent staff officers to the line, the said pro\d- sion, which was temporary and has now ex- pired, being as follows: 921 Sec. 1599. Ft. 2. REVISED STATUTES. The Navy. "That prior to June thirtieth, nineteen hun- dred and eifihteen, an oliicer holding a per- manent appointment in any staff department may, upon his own a])plication, with the ap- {)roval of the President, l)e reappointed in the inc of the ^Iarine Corps in the grade and with the rank he would hold on the date of his reappointment if he had remained continuously in the line: Provided, That no oflicer holding a permanent appointment in any staff depart- ment shall be recommissioned in the line with the rank of colonel or lieutenant colonel: Provided further, That such staff oliicer shall, before being reappointed in the line of the Ma- rine Corps as above provided, perform line duties for one year, at the expiration of which time he shall as a prerequisite to reappoint- ment in the line be required to establish to the satisfaction of an examining board consisting of line ofiicers of the Marine Corps his physical, mental, and professional fitness for the per- formance of line duty." By another clause in the same act (39 Stat., 610) it was provided ''that officers holding permanent appointments in the staff depart- ments shall not be eligible for appointment to the grade of brigadier general of the line as hereinbefore provided." Proportion of officers in the staff. — By act of August 29, 1916 (39 Stat., 610), it was pro\'ided that — "The total commissioned personnel of the active list of the staff departments, whether serving therein under permanent appointments or under temporary detail, as herein proAided, shall be eight per centum of the authorized commissioned strength of the Marine Corps, and of this total one-fifth shall constitute the adjutant and inspector's department, one-fifth the pajTnaster's department, and three-fifths the quartermaster's department." As to rank of senior staff officers see note to section 1602, Revised Statutes. As to promotion of officers in staff depart- ments, see note to section 1-599, Revised Statutes. Duties of staff officers. — An adjutant was provided for the Marine Corps as early as July 11, 1798 a Stat., bM), and the quarter- master and paymaster at least as early as Apr. 16, 1814 (3 Stat., 124). The act of March 3, 1899, section 22 (noted under section 1596, R. S. ), simply increased the number of aissist- ants to the three principal oflicei-s. It is to be noted that in none of these acts are the duties and functions of the three staff ofiicers in ques- tion at all specified, but it can not on this ac- count be held that the statute itself imposes none. On the contrary, it is clear that these duties and functions were presumed by Con- gress to be so well understood as not to require specific mention. Broadly, the adjutant is the aid of the commander in maintaining mili- tary discipline; the quartermaster attends to the supplies of the command; and the pay- master to the payment thereof. (30 Op. Atty. Gen., 234.) A regulation which woidd deprive the senior staff officers in the Marine Corps of the functions above enimierated, or place them in a situa- tion where they would be unable to perform them, is necessarily invalid. The headquarters of the command is the only place where in the nature of things those duties can be properly performed. (30 Op. Atty. Gen., 234.) Detachment of senior staff officers from headquarters. — The President, as commander in chief of the Army and Navy, may tempo- rarily detail said staff officers (adjutant and in- spector, quartermaster, and pajonaster) away from the headquartei"s of their command, or order them to perform temporarily additional duties in the line of their staff fimctions or outside of them. (30 Op. Atty. Gen., 234.) A Navy regulation is invalid which permits officers of the staff departments of the Marine Corps to be detached permanently from the headquarters of the Marine Corps, and gives the power to the commandant of that corps to impose duties upon these staff officers inconsistent with their staff functions. (30 Op. Attv. Gen., 234.) DetaU of junior staff officer as head of department. — It is clearly inconsistent with the acta of Congress relating to the staff of the Marine Corps, up to and including the act of March 3, 1899, section 22 (noted under sec. 1596, R. S.), to relegate the quartermaster, for example, to the position of an officer in his own department, and to raise one of his assistants to a position not recognized in the statutes, namelv, "officer in charge of the quartermaster's department." (30 Op. Atty. Gen., 234. But see act Aug. 29, 1916, quoted above.) Sec. 1599. [Qualifications for appointment and promotion. Superseded.] This section provided as follows: "Sec 1-599. No person under twenty or over twenty-five years of age shall be appointed from civil life as a commissioned officer of the Marine Corps, nor shall any person be so appointed until his cjualifications for such service have been examined and approved, under the direc- tions of the Secretary of the Navy." — (25 July, 1861, c. 19, 3. 3, V. 12, p. 275.) It was superseded bv act of March 3, 1899 , section 20 (30 Stat., 1008), which provided "that no person except such officers or former graduates of the Naval Academy as have served m the war with Spain, as hereinbefore provided for, shall be appointed a commissioned officer in the Marine Corps who is under twenty or over thirty years of age; and that no person shall be appointed a commissioned officer in said corps until he shall have passed such examination as may be prescribed by the President of the United States, except graduates of the Naval Academv, as above provided * * *." The said act of March 3, 1899, Section 19 (30 Stat., 1008), pro\dded that "the vacancies exist- ing in said Corps after the promotions and appointments herein provided for shall be filled by the President from time to time, whenever the actual needs of the naval service require it, first, from the graduates of the Naval Academy in the manner now proA^ided by law; or second, from those who are serving or who have served as second lieutenants in the Marine Corps during the war with Spain; or, third, from meritorious noncommissioned officers of the 922 The Navy. Ft. 2. REVISED STATUTES. Sec. 1599. Marine Corps; or, fourth, from civil life: Pro- vided, That after said vacancies are once filled there shall be no further appointments from civil life." OTHER LAWS RELATING TO APPOINTMENT. Act of March 3, 1903 (32 Stat., 1198), provided "that the vacancies now existing in the line and the staff departments of the Marine Corps and those created by this Act below the grade of brigadier-general shall be filled, respectively, first by promotion by seniority and then by selection and appointment as now provided by law, excepting that vacancies in the grade of second lieutenant shall be filled first, as far as practicable, from graduates of the Naval Academy each year on completing the pre- scribed course at the Naval Academy, exclu- sive of the probationary tour of sea service before final graduation, then from meritorious noncommissioned officers and from ci^dl life between the ages of twenty-one and twenty- seven years." Act of May 13, 1908 (35 Stat., 155), provided "that the vacancies now existing in the line and staff departments of the United States Marine Corps and those created by this Act shall be filled in the manner provided bylaw." Act of July 9, 1913 (38 Stat., 103), provided that "midshipmen on graduation shall be com- missioned ensigns in the Navy, or may be assigned by the Secretary of the Navy to fill vacancies in the lowest commissioned grades of the Marine Corps or Staff Corps of the Navy." (For other laws relating to appointment of mid- sliipmen on graduation, see note to sec. 1521, R. S.) Act ofAugiist 29, 1916 (39 Stat., 611), provided "that no midshipman at the United States Naval Academy or cadet at the United States Military Academy who fails to graduate there- from shall be eligible for appointment as a com- missioned officer in the Marine Corps until after the graduation of the class of which he was a member." The said act of August 29, 1916 (39 Stat., 610), further provided that "appointees to the grade of second lieutenant, if appointed from civil life, shall be between the ages of tvventy and twenty-five years, and before receiving a commission in the Marine Corps, each appointee shall establish to the satisfaction of the Secre- tary of the Navy Ms mental, physical, moral, and professional qualifications for such com- mission." The said act of August 29, 1916 (39 Stat., 610), further provided that "the President of the United States be, and hereby is, author- ized, by and with the advice and consent of the Senate, to appoint as second lieutenants on the active list in the United States Marine Corps, to take rank at the foot of the list of second lieutenants as it stands at the date of reinstatement, former officers of the Marine Corps who resigned from the naval serAdce in good standing: Provided, That they shall es- tablish their moral, physical, mental, and pro- fessional qualifications to perform the duties of that grade to the satisfaction of the Sec- retary of the Navy: Provided further. That the Secretary of the Navy, in his discretion, may waive the age limit in fa^'or of the aforesaid former officers of the Marine Corps: Provided further, That the prior service of such officers and the service after reinstatement shall be not less than thirty years before the age of retire- -ment." The same act (39 Stat., 611), provided "that appointments from noncommissioned officers of the Marine Corps and from civil life shall be for a prol)ationary period of two years and may be revoked at any time during that period by the Secretary of the Navy: Provided further, That the rank of such officers of the same date of appointment among themselves at the end of said probationary period shall, with the approval of the Secretary of the Navy, be deter- mined by the rei)ort of a board of Marine officers who shall conduct a competitive pro- fessional examination under such rules as may be prescribed by the Secretary of the Navy and the rank of such officers so determined shall be as of date of original appointment with reference to other appointments to the Marine Corps." The act of May 22, 1917, section 10 (40 Stat., 87), authorized promotion, during the exist- ing war, of probationary second lieutenants without change in their probationary status. The same act (39 Stat., 611), contained a provision, which expired two years after the date of its approval, authorizing the transfer to the active list of the Marine Corps of certain retired officers, officers so restored to be addi- tional numbers and to have the position on the active list which they would have had if not retired. By act of June 4, 1920 (41 Stat., 830), pro- vision was made for permanent appointment in the Marine Corps of officers serving tem- porarily in the grades of captain and below, such appointments to be made without regard to age, in the same grades as held temporarily or lower grades, according to qualifications, it being required that such officers "shall establish to the satisfaction of the Secretary of the Navy, under such rules as he may prescribe, their mental, moral, professional, and physical qualifications to perform the duties of the grade to which transferred or reappointed," and that they take precedence with each other and with other officers of the Marine Corps in such order as may be recommended by a board of Marine officers and approved by the Secretary of the Navy. The same act (41 Stat., 830), provided "that all persons who served honorably as officers in the Marine Corps or Marine Corps Reserve on active duty at any time between April 6, 1917, and the date of the passage of this act, and who have been honorably discharged or assigned to inactive duty shall be eligible for permanent appointment in the same or a lower rank than that held on discharge or assignment to inactive duty, but not above the rank of captain, to fUl vacancies existing or hereby created in the permanent authorized strength of the Marine Corps,"- under the same conditions as those above set forth for officers then in the service. All appointments under the act of June 4, 1920, from former officers, or officers holding temporary appointments, or members of the Marine Corps Reser\e, were required to be accomplished by June 30, 1921. (41 Stat., 830.) 54641°— 22- -59 923 Sec. 1599. Pt. 2. REVISED STATUTES. The Navy. Officers dropped from the rolls of the Navy or Marine Corps on account of absence without leave or imprisonment imder sentence of civil courts, shall not be elis^ble for reapi)ointment. CfVct Apr. 2, 1918, 40 Stat., 501. See sec. 1441, R. S., and note thereto for other pro\isions disqualifjing former oflScers and midshipmen for rea]ipointmentin the Navy or Marine Corps.) QuaUlications for warrant officers. — By act of Augxist" 29, 1916 (39 Stat., 611), creating the warrant grades of marine g\mner and quarter- master clerk, noted under section 1596, Re- vised Statutes, it was provided that "they shall be appointed from the noncommissioned officers of the ^Marine Corps and clerks to quar- termasters now ser\dng as such and who have performed field service." By act of June 4, 1920 (41 Stat., 830), it was provided that officers then holding temporary commissions in the Marine Corps, and who had more than 10 years' ser^dce therein, if not found (qualified for permanent commissions, may be appointed warrant officers in the Marine Corps if "recommended by the board herein pro\ided for." LAWS RELATING TO PROMOTION. See sections 1605-1607, Revised Statutes, as to advancement for heroism, etc. Act of July 28, 1892 (27 Stat., 321), provided "That hereafter promotions to every grade of commissioned officers in the Marine Corps below the grade of Commandant shall be made in the same manner and under the same con- ditions as now are or may hereafter be prescribed, in pursuance of law, for commissioned officers of the Army: Provided, That examining boards which may be organized under the pro^'ision3 of this act to determine the fitness of officers of the Marine Corps for promotion shall in all cases consist of not less than five officers, three of whom shall, if practicable, be officers of the Marine Corps, senior to the officer to be exam- ined, and two of whom shall be medical officers of the Navy: Provided further, That when not practicable'to detail officers of the Marine Corps as members of such examining boards, officers of the line in the Navy shall be so detailed. " Act of October 1, 1890 (26 Stat., 562), relating to promotions in the Army, and extended to Marine Corps by above act of July 28, 1892, contained the following provision in section 1 : "That hereafter promotion to every grade in the A rmy below the rank of brigadier general, throughout each arm, corps, or department of the ser\ace, shall; subject to the examination hereinafter provided for, be made according to seniority in the next lower grade of that arm, corps, or department * * *." The sams act of October 1, 1890, section 3, contained the following: "That the President be, and he is hereby, authorized to prescribe a system of examination of all officers of the Army below the rank of major to determine their fitness for promotion, such an examination to be con- ducted at such times anterior to the accruing of the right to promotion as may be best for the interests of the service: * * * And pro- vided, That if any officer fails to pass a satis- factory examination and is reported unfit for promotion, the officer next below him in rank. having passed said examination, shall receive the promotion: And provided. That should the officer fail in his physical examination and be found incapacitated for service by reason of physical disability contracted in line of duty he shall be retired w'ith the rank to which his seniority entitled him to be promoted; but if he should fail for any other reason he shall be suspended from promotion for one year, when he shall be reexamined, and in case of failure on such reexamination he shall be honorably discharged with one year's pay from the Army." Act of March 3, 1899, auction 20 (30 Stat., 1009), pro\ided, "That the officers of the Marine Corps above the grade of captain, except brigadier general, shall, before being promoted, be subject to such physical, mental and moral examination as is now, or may hereafter be, prescribed by law for other officers of the Marine Corps." By said act of March 3, 1899, section 18 (30 Stat., 1008), it was provided that "vacancies in the grade of brigadier general shall be filled by selection from officers on the active list of the Marine Corps not below the grade of field officer." By act of August 29, 1916 (39 Stat., 609, 610), it was provided that "brigadier generals shall be appointed from officers of the Marine Corps senior in rank to lieutenant colonel"; that the Commandant shall be appointed from officers of the active list not below the rank of colonel; and that officers holding permanent appointments in the staff departments shall not be eligible for appoint- ment to the grade of brigadier general of the line. Act of June 3, 1916, section 24 (39 Stat., 183), made applicable to the Maiine Corps by act of July 28, 1892, above quoted, provided, "That the provisions of existing law requiring exam- inations to determine fitness for promotion of officers of the Army are hereby extended to include promotions to all grades below that of brigadier general : Provided further. That ex- aminations of officers in the grades of major and lieutenant colonel shall be confined to problems involving the higher functions of staff duties and command. " Act of August 29, 1916 (39 Stat., 610), pro- vided "That for the purpose of advancement in rank to "^nd including the grade of colonel, all commissioned officers of the line and staff of the Marine Corps shall be placed on a common list in the order of seniority each would hold had he remained continuously in the line. All advancements in rank to captain, major, lieutenant colonel, and colonel shall, subject to the usual examinations, be made from offi- cers with the next junior respective rank, whether of the line or staff, in the order in which their names appear on said list." The said act of August 29, 1916 (39 Stat., 611), further enacted that "the proAdsions of sec- tions fourteen hundred and ninety-three and fourteen hundred and ninety-four of the Re- vised Statutes of the United States shall apply to the Marine Corps." (See said sections and notes thereto. Sec. 1493 required physical quali- fication for promotion to all grades in the Navy, except in the case specified in sec. 1494, of partial disability incurred in line of duty.) 924 The Navy. Tt. 2. REVISED STATUTES. Sec. 1599. By said act oi August 29, 1916 (39 Stat., 611, 612), it was provided that — "lu lieu of suspension from promotion of any officer of the Marine Corps who hereafter fails to pass a satisfactory professional examination for promotion, or who is now under suspension from promotion by reason of such failure, such officer shall suffer loss of numbers, upon ap- proval of the recommendation of the examin- ing board, in the respective ranks, as follows: Lieutenant colonel, one; major, two; captain, three; first lieutenant, five; second lieutenant, eight: Provided, That any such officer shall be reexamined as soon as may be expedient after the expiration of six months if he in the mean- time again becomes due for promotion, and if he does not in the meantime again become due for promotion he shall be reexamined at such time anterior to again becoming due for pro- motion as may be for the best interests of the 8er\ice: Provided further, That if any such officer fails to pass a satisfactory professional reexamination he shall be honorably dischargea with one year's pay from the Marine Corps." Act of March 4, 1917 (39 Stat., 1171), empow- ered commanding officers on foreign stations, when authorized by the Secretary of the Navy, to order boards of medical examiners and exam- ining boards for examination of candidates for promotion in the Marine Corps. (See note to sec. 1493, R. S.) Act of June 4, 1920 (41 Stat., 774), relating to the Army provided that "Existing laws pro- viding for the examination of officers for promo- tion are hereby repealed, except those relating to physical examination, which shall continue to be required for promotion to all grades below that of brigadier general, and except also those governing the examination of officers of the Medical, Dental, and Veterinary Corps." (As to effect of this act upon promotions in the Marine Corps, see decisions noted below.) By said act of June 4, 1920, section 51 (41 Stat., 785, amending act June 3, 1916, sec. 127, 39 Stat., 217), it was pro\dded that "in time of war any officer of the Regular Army may be appointed to higher temporary rank without vacating his permanent commission, such ap- pointments in gi-ades below that of brigadier general being made by the President alone, but all other appointments of officers in time of war shall be in the Officers' Reserve Corps." Probationary appointments. — ^The act of August 29, 1916 (above quoted), does not con- ternplate the issuance of probationary appoint- ments to former officers of the IMarine Corps appointed as second lieutenants in accordance with that act. (File 13261-544: 1, Oct. 10, 1916.) Appointment of former student at Naval Academy. — Under the act of March 3, 1899, providing for filling vacancies thereby created in the staff of the Marine Corps, and making eligiljle for appointment thereunder line officers on the active list of the Marine Corps not below the grade of captain, "who shall have seen not less than ten years' service in the Marine Corps," held that in estimating the time which is necessary for qualification for the promotion pro^dded for, the time of ser^dce as a naval cadet at the Naval Academy and at sea before being commissioned should be coimted. This view is sustained by the act of June 10, 1896 (noted under sec. 1600, R. S.). f22 Op. Atty. Gen., 377.) There can be no doubt about the proposition that the time of service of a cadet at the Naval Academy and at sea anterior to commission is as much a time of preparation for service in the Marine Corps as it is in the Navy proper, be- cause the Marine Corps is an essential part of the naval organization. Such time of prepara- tion at the Academy and at sea having always been counted for appointments and promotions in the Navy proper, and the Marine Corps being part of the Navy, there is no reason why the benefits of time at the Academy and at sea an- terior to commission should not he given to persons seeking promotion in the Marine Corps as well as in the Navy proper. (22 Op. Atty. Gen., 377, 379.) A person who took the regular four years' course at the Naval Academy, and received a certificate of graduation issued pursuant to the act of August 5, 1882 (22 Stat., 284), without rendering the two years' service at sea then required for final graduation, held to be a grad- uate of the Naval Academy within the meaning of section 20 of the Navy personnel act ap- proved March 3, 1899, providing for filling vacancies in the Marine Corps. (22 Op. Atty. Gen., 485.) The exemption as to age limit in section 20 of the act of March 3, 1899 (above quoted), with reference to the eligibility to appoint- ments in the Marine Corps, is not restricted to those who served in the Marine Corps during the war with Spain, but extends to all gi-adu- ates of the Naval Academy who served in that war, including one who so served in the line of the Navv. (22 Op. Atty. Gen., 485.) See act of March 4, 1913 (37 Stat., 891), pro- viding that service of a midshipman at the Naval Academy, thereafter appointed to said Academy, "shall not be counted in computing for any purpose the length of serAdce of any offi- cer in the Navy or in the Maiine Corps." See section 1520, Revised Statutes, and amendments noted thereunder, as to four years' course at the Naval Academy. See section 1621, Revised Statutes, and note thereto, as to status of Marine Corps. Appointments from enlisted men and civil life. ^Section 19 of the Navy personnel act of March 3, 1899, and the act of March 3, 1903 (both above quoted), considered, and held, 1st. That appointments to the grade of second lieutenant in the Marine Corps may be made from civil fife; 2d. That the limitation as to age of appointees, contained in the latter act, appUes only to appointments from civil life; 3d. That enlisted men of the Marine Corps, other than noncommissioned officers, and also enfisted men of the Navy, may be appointed as second lieutenants. (File 13261-426, May 29, 1913, citing file 3727-2, Feb. 17, 1906, and 3259-98, May 19, 1898.) Appointment and promotion distin- guished. — -See note to sections 1458 and 1603, RoA-ased Statutes; Laws relating to promotion construed. — Pre\iou3 to the act of July 16, 1862, chapter 183, there was no law which required officers in any branch of the naval service, including the 925 Sec. 1599. PL 2. REVISED STATUTES. The Navy. Mariiu' Corps, to pass a ph\-8ical examination as a preliminary to promotion. The fourth sec- tion ol that act directed the Secretary of the Navy to a]ipoint an atlvisory board of naval ollicers, whoso duty it was to carefully scruti- nize the active list of line ollicers in the Navy above and including tlu; grade of master, and rojwrt to the Secretary in ^vriting those found to be worthy of promotion. The board in recommending an officer for promotion w'as to certify that he "has the moral, mental, physi- cal, and professional qualifications to perform efficiently all his duties, both at sea and on shore, of the grade to which he is to be pro- moted . " By the sixth section of the same act a similar advisory board was to be appointed at least once in every four years. These pro\'i- sions applied solely to line officers of the Navy, but were superseded by other provisions on the same subject contained in the act of April 21, 1804, chapter 63. The latter provisions are embodied in sections 1493, et seq., of the Revised Statutes. They include both line and staff officers, but in terms extend to those only who are "on the active list of the Navy." There is no statutory provision of this character which expressly or impliedly includes officers of the Marine Corps. (17 Op. Atty. Gen., 117, June 11, 1881.) Section 1493 of the Revised Statutes, requir- ing physical examinations for promotion in the Navy, "is not extended to the Marine Corps by section 1621, Re\dsed Statutes. (17 Op. Atty. Gen., 117, June 11, 1881.) It would seem that the examination, physical or other, of a retiring board, constituted under section 1623, Revised Statutes, is the only one to which an officer of the Marine Corps is by law subjected in order to determine his fitness for active duty; and unless the officer is by this board found incapacitated for active serv- ice, and the finding is approved by the Presi- dent, he remains in the line of promotion on the active list as he previously was, and is entitled to all the rights which belong to his position. (17 Op. Atty. Gen., 117, June 11, 1881.^ The act of October 1, 1890 (26 Stat., 562), which was extended to the Marine Corps by the act of July 28, 1892 (above quoted), pro- vided that examinations for promotion were to be.held at such times "anterior to the accru- ing of the right to promotion" as may be best for the interoflts of the service. A question haA'ing arisen as to whether certain officers to be promoted in the Marine Corps to vacancies created on July 10, 1892, in the offices of major, captain, and first lieutenant, should or should not be examined under the act of July 28, 1892, held, that said promotions might be made with- out the examinations in question; that the right of the officers in question to promotion existed from July 10, 1892, prior to the passage of the law requii'ing examination; that the act of October 1, 1890, having been construed by the Army as not requiring examinations for officers who had previously become due for promotion, it must be understood that Congress enacted the law of July 28, 1892, Avith full knowledge of such construction, and did not intend that a right of promotion earned by long ser\'ice and actually accrued should be taken away by force of the latter enactment. (20 Op. Atty. Gen., 433; compare cases noted under sec. 1458, R. S.) The words "usual examinations," as used in the act of August 29, 1916 (above quoted), re- ferred to the mental, moral, professional, and physical examinations for promotion which offi- cers of the Marine Corps \w\o\y the grade of major were required to undergo by virtue of the Army act of October 1, 1890, made applicable to the Marine Corps by act of July 28, 1892; the mental, moral, and physical examinations which officers of the Marine Corps above the rank of captain, except brigadier generals, were required to undergo by the act of March 3, 1899; the professional examination which officers of the Marine Corps of the ranks of major and lieu- tenant colonel were required to undergo by virtue of the Army act of June 3, 1916, made applicable to the Marine Corps by the act of July 28, 1892; and the physical examination which all officers of the Marine Corps were re- quired to undergo by virtue of section 1493 of the Revised Statutes, relating to the Navy, and made applicable to the Marine Corps by the act of August 29, 1916. (File 26521-405:1, Sept. 15, 1920; see also 26521-405, June 30, 1920. The laws referred to are quoted above, under this section.) The act of August 29, 1916, should be con- strued as referring to the "usual examinations" which were required by law in the Marine Corps_ on that date, regardless of whether such examinations were originally prescribed by Army laws, Navy laws, laws relating specifi- cally to the Marine Corps, or a lawful regulation of the Executive. No reference was made in said act to examinations which might there- after be prescribed by law for the Army or Navy, and accordingly the system of examina- tions then in force, and specifically required for the Marine Corps by the act of August 29, 1916, must continue to be required until other- wise pro\dded by Congress; it could not be affected by any subsequent legislation relating specifically to examinations in the Army and which, in terms, is inapplicable to the Marine Corps. So long as promotions in the Marine Corps are made pursuant to the act of August 29, 1916, such promotions must be subject to the "usual examinations" which were required at the time said act was enacted, unless and until Congress otherwise directs. (File 26521- 405:1, Sept. 15, 1920; see also 26521-405, June 30, 1920.) Prior to the enactment of the Army act of June 4, 1920 (41 Stat., 774), the system of pro- motion in the Marine Corps was well under- stood. The act of August 29, 1916, provided that advancements in rank in the Marine Corps, to and including the grade of colonel, were to be made according to seniority from a ' ' common list," and that advancements in rank to cap- tain, major, lieutenant colonel, and colonel were to be made "subject to the usual exami- nations." There were other provisions in the act which clearly indicated that the usual ex- aminations were also intended to apply to pro- motions to the grade of first lieutenant. (File 26521-405:1, Sept. 15, 1920; see also 26521-405, June 30, 1920.) The repeal of prior Army laws on the subject of promotion, by the act of June 4, 1920 (41 926 The Navy. Pt. 2. REVISED STATUTES. Sec. 1600. Stat., 774), without the substitution of any other constructive legislation applicable to the Marine Corps, leaves nothing upon which the act of July 28, 1892, can operate, and the Marine Corps is now governed wholly by the system of promotion pro\dded for by the act of August 29, 1916, and prior statutes adopted by reference therein or which are not inconsistent there- vrith. Query: \\Tiether the ax;t of July 28, 1892, has been superseded or repealed in its entirety? (File 26521-405 :1, Sept. 15, 1920; see also 26521-405, June 30, 1920.) The system of promotion in the Marine Corps, including examinations and penalties, con- tinues in force unaffected by anything con- tained in the act of June 4, 1920, establishing a new system of promotion in the Army. (File 26521-405:1, Sept. 15, 1920; see also 26521-405, June 30, 1920.) The promotion legislation in the Army act of June 4, 1920, which covers several printed pages of that act, is clearly not applicable to the Marine Corps in its entu-ety. For example, said act requires that promotions shall be made from a common list of all officers of the Army below the grade of colonel, with certain excep- tions, and that this "promotion list" shall be formed by a board of officers appointed by the Secretary of War, "consisting of one colonel of each of six branches of the service in which officers are permanently commissioned under the terms of this act, and one officer who, as a member of the personnel branch of the General Staff, has made a special study of merging the present promotion lists into a single list." It would be impossible to convene a board in the Marine Corps constituted as required by this provision to form a promotion list for that service. The further provisions of the Army act make it clear that the system which it creates was never intended to apply to promotions in the Marine Corps. (File 26521-405:1, Sept. 15, 1920; see also 26521-405, June 30, 1920.) The Army legislation of June 4, 1920, relating to promotions, being as a whole clearly inappli- cable to the Marine Corps, it can not be held that a part of one sentence therein, which re- peals "existing laws providing for the examina- tion of officers for promotion * * * except those relating to physical examination, which shall continue to be required for promotion to all grades below that of brigadier general * * *, " should be applied to the Marine Corps, and given the far-reaching effect of tear- ing down a carefully constructed system already in operation in that serWce, without providing anything in its place. The repealing clause can not be separated from the remainder of the act, which provides a complete substitute for the former system of promotion in the Army, and which was apparently regarded as dispens- ing -n-ith the necessity for the former tests of efficiency, thus explaining the repeal of the former laws relating to examinations, in so far as such laws affected the Army. (File 26521- 405:1, Sept. 15, 1920; see also 26521-405, June 30, 1920.) The new Army system of promotion was es- tablished as a substitute for and supersedes the former system followed in the Army under the actof October 1, 1890, and amendments thereto. It does not, however, pro\ide any substitute for the system of promotion already in force in the Marine Corps, and therefore cloes not su- persede the Marine Coi-ps system which the act plainly indicates was not intended to be affected thereby. It is not reasonable to as- sume that Congress intended with respect to the Marine Corps to repeal prior laws relating to examinations for promotion without pro- \iding any substitute therefor, at the very time it was creating in detail a complete sub- stitute for such laws in the Army. (File 26521- 405:1, Sept. 15, 1920; see also 26521-405, June 30, 1920.) The provision in the Army act of June 4, 1920, requiring physical examinations for pro- motion to all grades below that of_ brigadier general, is not applicable to the Marine Corps, for the reason that physical examinations prior to promotion to all grades in the Marine Corps, without exception, are required by the Navy law contained in section 1493 of the Re^■ised Statutes, as extended and applied to the Marine Corps by the act of August 29, 1916, which legislation for physical examinations in the Marine Corps in accordance with Navy laws, certainly is not repealed by said act of June 4, 1920. (File 26521-405:1, Sept. 15, 1920; see also 26521-405, June 30, 1920.) Under the laws in force prior to Jime 4, 1920, and which continued in force unaffected by the Army act of that date, held: (1) A mental, moral, and professional examination is required for promotion in the Marine Corps to the grades of first lieutenant, captain, major, lieutenant colonel, and colonel; but not to the grades of brigadier general and major general. (2) A mental, moral, and physical examination is required in the Marine Corps for promotion to the grade of brigadier general, and a physical examination is required for promotion to the grade of major general. (File 26521^05:1, Sept. 15, 1920; see also 26521-405, June 30, 1920.) Sec. 1600. [Credit for volunteer service.] All marine officers shall be credited with the length of time they may have been employed as officers or enlisted men in the volunteer service of the United States. — (2 Mar., 1867, c. 174, s. 3, V. 14, p. 516.) All officers appointed to any corps of the Navy or to the Marine Corps, after service in a different corps of the Navy or of the Marine Corps, shall have all the benefits of their pre\dous service in the same manner as if said appointments were a reentry into the Navy or into the Marine Corps. (Act June 10, 1896, 29 Stat., 361.) _ Any warrant officer or pay clerk in the Marine Corps who accepts appointment as com- missioned officer in Marine Corps Reserve shall be entitled, upon termination of such 927 Sec. 1601. Pt.2. REVISED STATUTES. The Navy. appointment, to revert to his former status tis a warrant officer or pav clerk in the Marine Corps, and shall "be entitled to count all active reserve service for pur- poses of longevity pay and retirement. (Act July 11, 1919, 41 Stat., 141.) Enlisted men of the Marine Corps discharged to be commissioned or warranted as officers in the Marine Corps Reserve, and who reenlist in the Marine Corps after termina- tion of reserve service, shall be entitled in computing ser\'ice for retirement to credit for all active reserve ser\ice. (Act July 11, 1919,41 Stat., 141.) Enlisted men of the Marine Corps discharged to be commissioned or warmnted in the Marine Corps Reserve, and who reenlist in the Marine Corps within three months from date of termination of reserve service, shall be restored to grade or rank held before being discharged fiom Marine Corps, and ser^•ice in the regular Marine Corps, including active service in the Marine Corps Reserxe shall be regarded as continuous for purposes of continuous service pay. (Act July 11, 1919, 41 Stat., 141.)- 1 .ongevity pay for officers in the Anny, Navy, Marine Corps, Coast Guard, Public Health Service, and Coast and Geodetic Survey, shall be based on the total of all service in any or all of said serxaces. (Act May 18, 1920, sec. 11, 41 Stat., 604.) Musicians of the ]\farine Band are to have no increase in their rates of pay on account of length of service. (Act Aug. 29, 1916, 39 Stat., 612.)_ Ser\ice of a midshipman at the Naval Academy or of a cadet at the Military Academy hereafter appointed to either of said academies, shall not be counted in com- puting for any purpose the length of service of any officer in the Navy or Slarine Corps. (Act Mar. 4, 1913, 37 Stat., 891. j Service as paymaster's steward. — The Revised Statutes, Title XY, chapter 9, classify the Marine Corps as part of the Navy, and pro- vide (sec. 1600), that all marine officers shall be credited with the length of time they may have been employed as officers or enlisted men in the volunteer service of the United States. An officer of the Marine Corps who served as a paj-master 's steward in the Volun- teer Navy is entitled to ha\e the time of such ser\dce credited to him in the computation of his longex'ity pay. (Muse v. U. S., 19 Ct. Cls., 441.) The Na\^^ Regulations classify paymasters' stewards as petty officers, and the Revised Statutes (sec. 1410) include petty officers in the more general designation of "all officers." It is not, however, to be understood that all petty officers are officers within the intent of the ('onstitution or of a penal statute. In the Navy, warrant officers and petty officers are spoken of generally as officers, and section 1410 merely recognizes the usage. (Muse v. U. S., 19 Ct. Cls., 441.) The Na^•y consists of officers, warrant officers, petty officers, and seamen. The two terms used in section 1600, "officers" and "enlisted men" embrace, for the purpose of computing longevity pay, all four classes in the Navy. (Muse V. V. S., 19 Ct. Cls., 441.) For other cases, see note to section 1612, Revised Statutes, respecting longevity pay; see also note to section 1599, Revised Statutes, under " Appointment of former student at the Naval Academy." Sec. 1601. [Rank of commandant. Repealed.] This section provided as follows: '"Sec. 1601. The commandant of the IMarine Corps shall have the rank of a brigadier-general of the Army. " • (2 Mar., 1867, c. 174, s. 7, v. 14, p. 517. 6 7une, 1874, c. 216, v. 18, p. 58.) It was repealed by act of June 6, 1874 (18 Stat., 58), which pro\-ided that "the office of commandant of the Marine Corps having the rank of a brigadier general of the Army shall continue until a vacancy shall occur in the same and no longer; and when such vacancy shall occur in said office, imme- diately thereupon all laws and parts of laws creating said office shall become inoperative, and sliall by virtue of this act from thence- forth be repealed: And provided further, That thereafter the commandant of the Marine Corps shall have the rank and pay of a colonel, and shall l>e appointed by selection by the President from the officers of said corps." (See sec. 5601, R. S.) Rank of brigadier general restored.— By act of March 3, 1899, section 18 (39 Stat., 1008 ), it was provided ' 'that from and after the dale of the approval of this Act the active list of the line officers of the United States Marine Corps shall consist of one brigadier general commandant * * *. " Rank of major general created. — By act of July 1, 1902 (32 Stat., 686), the com'- mandant was given the rank of major general during the ser\-ice of the then incumbent; by act of May 13, 1908 (35 Stat., 155), there was authorized "one major general commandant, in lieu of the present brigadier general com- mandant;" and by act of December 19, 1913 (38 Stat., 241), which fixed the commandant's term of office at four years, it was provided that the appointee should be an officer of the active list not below the grade of field officer who, while serving as commandant, should have the rank of major general and be carried as an additional number in his grade and after his return to duty in his gi'ade until said grade is reduced to the number authorized by law. By act of August 29, 1916 (39 Stat., 609), it was provided that appointments thereafter made to ' 'the position of major general commandant," shall be from officers of the active list of the Marine Corps not below the i-ank of colonel, and that ' 'in determining the officers with rank senior to colonel there shall be included the officer serving as major general commandant. " The act of July 1, 1918 (40 Stat., 715), which created the pennanent grade of major general in the Marine Corps, authorized the appoint- 928 The Navy. PL 2. REVISED STATUTES. Sec. 1602. ment to that grade of one major general, "who shall at all times be junior in rank to the Major General Commandant, and also one temporary major general in the Marine Corps, who shall at all times be junior to the per- manent major general." Rank on retirement.^ — The Major General Commandant, if retired fi-om that position in accordance ^\^th sections 1251, 1G22, and 1623, Revised Statutes (physical disability incident to the ser^dce), or by reason of age or length of service, shall have the rank and retired pay of major general; if retired for any other reason, he shall be placed on the retired list of officers of the gi'ade to which he belonged at the time of his retirement. (Act Dec.l9, 1913, 38 Stat. ,241.) Active duty after retirement. — -After a Commandant of the Marine Corps is placed upon the retired list of officers of that corps on account of age, he can not legally be retained in his former office of Commandant until his successor is appointed. The general statute authorizing the detail of retired ofhcers to active duty did not modify the special provd- sion of law that the Commandant shall be ap- pointed from officers of the active list, which applies to all appointments, whether regular or for a limited time. (28 Op. Atty. Gen., 486; see also note to see. 1622, R. S.) Filling of temporary vacancy. — An officer on the active list of the Marine Corps can not be temporarily detailed to fill a vacancy created by the retirement of the Commandant, with authority to transact official business and sign orders and correspondence as "Acting ("om- mandant, U. S. Marine Corps." (28 Op. Attv. Gen., 486.) During a vacancy caused by the retirement of a Commandant of the Marine Corps, the orders and correspondence connected with his office should be signed by the Secretary of the Navy or by the Acting Secretary of the Na\'^% in per- son. (28 Op. Atty. Gen., 486.) For other cases, see notes to sections 177-182, Revised Statutes. Commandant's status as additional number. — Under the act of August 29, 1916, Sec. 1602. [Staff rank. Superseded.] This section provided as follows: "Sec. 1602. The adjutant and inspector, the pa>Tnaster, and the quartermaster shall have the rank of major; [the] [each] assistant quartermaster shall have the rank of captain. ' ' — • (2 Mar., 1847, c. 40, s. 3, v. 9, p. 154. 27 Feb., 1877, c. 69, V. 19, p. 244.) It was amended by act of February 27, 1877 (Id Stat., 244), which substituted the word "each" for "the," as indicated in the above reproduction of this section as it appeared in the second edition of the Revised Statutes. It was superseded by the Navy personnel act of March 3, 1899, section 22 (.30 Stat., 1009), which provided, in part, that "the staff of the Marine Corps shall consist of one adjutant and inspector, one quartermaster and one pay- master, each with the rank of colonel; one assistant adjutant and inspector, two assistant quartermasters and one assistant paymaster, each with the rank of major: and three as- sistant quarteimasters with the rank of captain. ' ' officers of the Marine Corps carried as additional nimibers in grade will, if promoted to the grade of brigadier general, immediately become reg- ular numbers in the latter grade, and will con- tinue to be caiTied as regular numbers therein, unless, by operation of some other law appli- cable to a specific case, the status of such an officer should revert to that of an additional number in grade. The act of December 19, 1913, relating to the Major General Comman- dant is an exception to the general provisions contained in the act of August 29, 1916, and a Major General Commandant whose peiTtianent grade is that of colonel would continue to be an additional number if promoted to the giade of brigadier general. (File 28687-1, Aug. 18, 1916.) Rank from which commandant appoint- ed. — Should a vacancy occur in the position of Major General Commandant, the President would be authorized to appoint any officer of the rank of colonel or brigadier general to fill such vacancy. Such officer would, by virtue of the act of December 19, 1913, immediately become an additional number in his grade. Should the number of officers senior to colonel be full, the President would not thereby be restricted to the selection of a brigadier general to fill the vacancy, but would have discretion to appoint a colonel whom he might consider better fitted for the office. The act of August 29, 1916, deals only with the apportionment of regular number officers, and allows more than the authorized percentage of officers senior to colonel, when such a result is made necessary by the appointment of a colonel to fill a vacancy in the position of Major General Commandant as specifically authorized by the same act, not- withstanding the provision therein that *in determining the officers with rank senior to colonel there shall be included the officer serv- ing as major general commandant," which has the effect of making the Major General Comman- dant one of the authorized number of officers above the rank of colonel. (File 28687-1, Aug. 18, 1916.) By act of August 29, 1916 (39 Stat.» 609), it was provided "that the officers serving in the senior grade of the Adjutant and In- spector's, Quartermaster's, and Paymaster's Departments shall, while serving therein, have the rank, pay, and allowances of a brig- adier general: And provided further, That for the purpose of determining the numlDcr of offi- cers in the various ranks as herein provided [see note to sec, 1596, R. S.j such staff ofScers shall be counted as being of the rank of Colonel : And provided further, That officers holding permanent appointments in the staff depart- ments shall not be eligible for appointments to the gi'ade of brigadier general of the line as hereinbefore provided." See note to section 1598, Revised Statutes, for other provisions of said act of August 29, 1916, relating to the rank of officers from whom appointments shall be made to the upper grades of the staff departments, their tenure of office, etc. 929 Sec. 1603. PI. 2. REVISED STATUTES. The Navy. Sec. 1603. [Relative rank with the Army.] The officers of the Marine Corps shall be, in relation to rank, on the same footing as officers of similar grades in V. 4, p. 713.) the Army.— (30 June, 1834, c. 132, s, 4 Army and Navy oflicers; relative rank of: See section i46(), Revised Statutes. Brigadier generals and rear admirals of the "lower lialf; relative rank of: See note to section 146G, Revised Statutes. Command when different corps or cojnmands happen to join or do duty together: See note to section 1342, Revised Statutes, under articles 119 ancl 120 of the Articles of War, and note to section 1621, Revised Statutes. Command of joint forces of the Army and Navy: See note to section 14()(), Revised Statutes. Command of ^Q,\y yards or \essels: See section 1617, Re'vised ' Statutes. In the absence of special assigmnent by the President, officers of the same gi'ade shall rank and have precedence in the following order, without regard to date of rank or commission as between officers of different classes, namely: First, officers of the Reg- ular Army and oflicers of the Marine Corps detached for service with the Army by order of the President; second, officers of forces drafted into the military ser\ice of the United States. (Joint Res. 23, July 1, 1916, sec. 4, 39 Stat., 340.) "In deternuning relative rank and increase of pay for length of service * * * active duty performed while under appointment from the United States Government, whether in the Regular, provisional, or temporary forces, shall be credited to the same extent as 8er\dce under a Regular Army commis- sion." (Act June 4, 1920, sec. 51, 41 Stat., 785, amending act June 3, 1916, sec. 127, 39 Stat., 217.) Precedence between officers of the Marine Corps and line officers of the Navy, and between officers of the Marine Corps and staff officers of the Navy: See note to sec- tion 1466, Revised Statutes. Precedence of Naval Academy graduates com- missioned in the line of the Navy and in the Marine Corps: See note to section 1483, Revised Statutes. "Unless special assignment is made by the President under the provisions of the one hundred and nineteenth article of war, all officers in the active 8er\ace of the United States in any grade shall take rank accord- ing to date, which, in the case of an officer of the Re.gular Army, is that stated in his conmiission or letter of appointment, and, in the case of a reserve officer or an officer of the National Guard called into the 8er\'ice of the United States, shall precede that on which he is placed on active duty by a period equal to the total length of active service which he may have performed in the grade in which called or any higher grade. ^Tien dates of rank are the same, precedence shall determined by length of active commissioned service in the Army. WTien length of such ser^'ice is the same, officers of the Regular Army shall take rank among themselves according to their places on the promotion list, preceding reserve and National Guard officers of the same date of rank and length of service, who shall take rank among themselves according to age." (Act June 4, 1920, sec. 51, 41 Stat., 785, amending act June 3, 1916, sec. 127, 39 Stat., 217.) "Senior in rank," construed. — An officer in one branch of the service can not with accu- racy be called senior in rank to an officer of an- other branch. A major in the Army is no more senior to a captain of marines than he is to a captain in the Navy. The term in its military sense is applicable only to relatively higher grades of the same service. Its use otherwise would create confusion. (10 Op. Atty. Gen., 116. See also sec. 1623, R. S.) Oflicers having same date of "appoint- ment." — Section 1219, Revised Statutes, pro- vides that "in fixing relative rank between offi- cers of the same grade and date of appointment and commission, the time each may have actu- ally served as a commissioned officer of the United States, whether continuously or at dif- ferent periods, shall be taken into account," etc. Held, that the word "appointment" as used in this section comprehends only the ap- pointment of an officer on his original entry into the regular ser\'ice, and does not include his appointment on promotion thereafter made. (23 Op. Atty. Gen., 155, affirming 17 Op. Atty. Gen., 196, and 17 Op. Atty. Gen., 362. See also cases noted below, and note to sec. 1458, R. S.) Ofl3.cers having same date of raiik. — -Un- der the act of March 3, 1899 (30 Stat., 1004), re- organizing the personnel of the Navy and Ma- rine Corps, Charles H. Lauchheimer, a captain of the line in the Marine Corps, was upon the date of the passage of that act, appointed and commissioned, by selection, as adjutant and inspector with the rank of major, and on March 11 foUomng, took the oath of office. On ^larch 23, 1899, Cliarles H. McCawley, a captain and assistant quartermaster in the Marine Corps, was promoted by seniority to assistant quarter- master with the rank of major, to date from March 3, and took the oath of office on March 30. The question of the relative rank of these offi- cers being presented for determination, held: (1) That the advancement of an officer to a higher grade, one to which he could not then succeed in due course by seniority, while called an appointment, is, in fact and effect, a promo- tion. Maj. Lauchheimer's advancement should, therefore, be taken as a promotion, and there is nothing in this regard to affect the relative rank of the two officers. (2) That as Maj. hauchheimer's commission and induction into office each antedate by several days that of Maj. McCawley 's, during that period the former ranked the latter. This rank was not lost nor a superior one conferred by the subsequent pro- motion of Maj. McCawley. (3) As both officers were in fact promoted, the earlier commission and rank of Maj. Lauchheimer entitle him to Srecedence in rank. (4) The Secretary of the avy, by virtue of his general power under the 930 The Navy. PL 2. REVISED STATUTES. Sec. 1604. President to make rules and regulations for the government of the Navy, may determine with the force and effect of law the relative rank of officers of the Marine Corps. Usually this is better done by general rules than by decisions in particular cases, but it may be done either way. (23 Op. Atty. Gen., 155.) Section 1219, Revised Statutes, has no appli- cation to the cases of Lauchheimer and McCaw- ley ,exceptas it recognizes the general rule which has regard for previous service. According to the preference given throughout the statutes and by the rules and practice of the War and Navy Departments to seniority of service, the longer service of Maj. Lauchheimer would, other things being equal, give him precedence in rank. (23 Op. Atty. Gen., 1.55.) Precedence not disturbed by promo- tion. — Until May 17, 1877, Col. Reid outranked Col. Goodloe by seniority in commission. On that date. Col. Goodloe was appointed major and paymaster, and subsequently, on May 2, 1894, Col. Reid was appointed major, adjutant and inspector. Both of these last-named coimnis- sions were appointments by selection at the discretion of the appointing power, and were not promotions under the statutes regulating such promotions. Therefore, from May 17, 1877, Col. Goodloe outranked Col. Reid by seniority of commission, and on IMarch 3, 1899, under the act of that date (30 Stat., 1008), both officers were promoted to the rank of colonel. Held, that the mere promotion of the two officers does not disturb their preexisting relative rank; that the promotions of March 3, 1899, were not "appointments" within the meaning of section 1219, Revised Statutes; and that therefore Col. Goodloe continues to outrank Col. Reid. (24 Op. Atty. Gen., 74, affirming 17 Op. Atty. Gen., 196 and 362; see note above, under "Offi- cers ha\'ing same date of appointment.'') Ofl&cers of Marine Corps and officers of Navy. — -By an unwritten law of the Army and Navy, officers of the Army and officers of the Navy take relative rank as respects the two classes according to their respective grades; and if of similar grade, then according to dates of commission. Officers of the Marine Corps, who are in relation to rank on the same footing as officers of similar grades in the Army, take rank and precedence relatively to line officers in the Navy according to grade ; and if of similar grade, then according to dates of commission. (25 Op. Atty. Gen., 517.) There is no law making any distinction as to relative rank and precedence between the offi- cers of the Marine Corps who are and those who are not graduates of the Naval Academy, either as respects themselves or officers of the line of the Navy. (25 Op. Atty. Gen., 517; see also sec. 1483, R. S., and note thereto.) There is no statutory pro\dsion expressly regulating the relative rank and precedence of officers of the Marine Corps and officers of the several staff corps of the Navy; but there are pro\'isions which, with the long established and settled usage and practice of the Army and Navy, regulate it with the same certainty as if by enactment in terms. (26 Op. Atty. Gen., 16.) Whatever will be the relative rank and its resulting precedence of an officer of the Army to either line or staff officers of the Navy, that would also be the relative rank as to them of officers of the Marine Corps. (26 Op. Atty. Gen., 16.) The Secertary of the Navy is without au- thority to make such a change in article 23 of the Navy Regulations, 1909, as to fix the relative rank of officers of the Marine Corps with officers of the Navy according to length of service, rather than by date of commission. (29 Op. Atty. Gen., 264.) Officers of Army, Navy, and Marine Corps. — -Paragraph 3 of article 25 of the Navy Regulations, 1909, may be amended in form so as to read: "When officers of the Army are associated jointly with officers of the Nav^y or Marine Corps, their corresponding rank shall be determined according to the dates of their respective commissions, when of the same or coiTesponding gi-ades; and when of different rank, as set forth in the first paragi'aph of this article." (29 Op. Atty. Gen., 264. Compare sees. 1485 and 1486, R. S., and notes thereto, as to precedence of line and staff officers of the Navy according to length of service.) Officers of "Marine Corps. — The relation as to rank which officers of the Marine Corps hold to other officers is prescribed by section 1603, Revised Statutes, and could not be changed by any act of the President. What- ever relation as to rank one Army officer may hold as to another officer, that is the relation which an officer of the Marine Corps of similar gi-ade holds. Accordingly, the Navy De- partment would not have the authority, with the approval of the President, to amend the Navy Regulations so as to do away with the practice as to relative rank of officers of the Marine Corps and line officers of the Navy, established in accordance with 25 Op. Atty. Gen., 517. (26 Op. Atty. Gen., 16.) Date of rank on promotion. — Officers of the Marine Corps on promotion should ordi- narily be given rank from the date of the vacancy to which promoted; in no case, how- ever, will an officer permanently or tempo- rarily promoted be given rank fi'om a date earlier than his date of rank in the lower grade. Vacancies resulting from the President's order of March 26, 1917, increasing the au- thorized number of enlisted men in the Marine Corps, were created on the date of said order, and vacancies resulting from the temporary increase in the number of enlisted men au- thorized by the act of May 22, 1917, were cre- ated on the date of the act. (File 28687-5:1, Sept. 7, 1917.) Sec. 1604. [Brevets.] Commissions by brevet may be conferred upon commissioned officers of the Marine Corps in the same cases, upon the same conditions, and in the same manner as are or may be provided by law for officers of the Army.— (6 July, 1812, c. 137, s. 4, v. 2, p. 785. 16 April, 1814, c. 931 Sec. 1604. Pt. 2. REVISED STATUTES. The Navy. 58, s. 3, V. 3, p. 124. 16 April, 1818, c. 64, s. 2, v. 3, p. 427. 30 June, 1834, c. 132, s. 9, V. 4, p. 713. 1 Mar., 1869, c. 52, s. 2, v. 15, p. 281. 3 Mar., 1869, c. 124, s. 7, V. 15, p. 318. 15 July, 1870, c. 294, s. 16, v. 16, p. 319.) Brevet commissions may be conferred by the President, by and \\'ith the advice and con- sent of tlie" Senate, upon commissioned officers of the Army, in time of war, for distinguished conduct and public ser\-ice in presence of the enemy. (Sec. 1209, U.S.) Bre%et commissions shall bear date from the particular action or service for which the oflicers were brevetted. (Sec. 1210, 11. S. i Brevet rank shall be considered strictly hon- orary, and shall confer no pri\alege of precedence or command not already pro- vided for in the statutes which embody the rules and articles go\eming the Army of the United States. (Act Feb. 27, 1890, section 3, 26 Stat., 14.) No officer shall he entitled on account of having been brevetted to wear wliile on duty any uniform other than that of his actual rank; and no officer shall he addressed in orders or official communications Ijy any title other than that of his actual rank. (Sec. 1212,11. S.) Officers may be assigned to duty or command according to their brevet rank, by special assignment of the President; and brevet rank shall not entitle an officer to preced- ence or command except when so as- signed. (Sec. 1211, R. S.) Officers of the Army shall only be assigned to dut y or command according to their brevet rank when actually engaged in hostilities. (Act Mar. 3, 1883, 22 Stat., 4.57. i Rank of brevet major abolished. — ■' 'There is no act of Congi-ess now in force [Apr. 22, 1820] which recognizes any such office as that of brevet major of marines;" the President can not confer that rank under the act of April 16, 1814. (1 Op. Atty. Gen., 3.52.) The act of March 3, 1817, fixing the peace establishment of the ^larine Corps, not having retained any majors in serxice, the brevets theretofore conferred were thereby made to cease with the termination of the lineal rank of majors by commission. (1 Op. Atty. Gen., 489.) ' 'The act of 1814 was predicated on a state of things which no longer exists. We were then at war, and the commissioned rank of major then existed; the design of that act was to augment that corps, and to stimulate it to deeds of arms. We are now at peace; the corps has been re- duced and adapted to the state of peace; the grade of major exists no longer, even though it had been conferred by commLssion, much less when conferred by brevet; and ^v■ith the grade falls the claim to pay. There is no breach of contract in this." (1 Op. Atty. Gen., 489, 490. ) Captains brevetted as Ueutenant colonels. — Congress having, by the act of April 16, 1814, authorized the President to confer brevet rank, and having, by the act of March 3, 1817, fixing the peace establishment of the Marine Corps, abolished the rank of major, held that the President is authorized to issue to a captain of the Marine Corps the brevet rank of lieutenant colonel. This ■v^'ill not operate to give the officer an advance of two steps instead of one. In the present organization of the Marine Corps there is but one step from the post of captain to that of lieutenant colonel, the former intermediate step of major haA-ing been abolished. (1 Op. Atty. Gen., 578.) Questions of duty and command are military questions. — Under the law al- lo\ving officers of the Marine Corps their brevet pay and emoluments when on duty ha\ing a command according to their brevet rank, the question when and under what circiimstances an officer is properly to be regarded as "on duty, and ha\dng a command according to his brevet rank," is a military question, strictly and technically a military question, properly determinable by the Department of the Navy or of War as it may arise in one or the other. Congress not having defined what shall con- stitute the fact of ' ' having a command accord- ing to brevet rank," has left it as a military fact or question to be settled by the military authorities of the Government. (5 Op. Atty. Gen., 513.) Laws on military subjects seldom fall -ndthin the sphere of a lawyer's practice or considera- tion, and he is consequently ^vithout that key of experience in the subject matter which is so essential to their just construction. The origin and nature of brevet rank — for example, the cases in which it is conferred, and the effects which it produces — are purely ques- tions of military experience, Avith regard to which we have no wiitten laws; and all ques- tions in relation to that rank must be, of neces- sity, beyond the province of the mere jurist. Accordingly, suggested that the President would be much more safe in resting on the opinion of military men upon such a question than upon that of the Attorney General. (1 Op. Atty. Gen., 578, 579.) Brevet pay and emoliiments. — Brevet majors of the Marine Corps are entitled to the same pay and emoluments which are allowed to officers of similar grades in the infantry of the Army. (5 Op. Atty. Gen., 513.) WTiatever may have been a different prac- tice, brevet officers of the Marine Corps have always been by law upon the same footing with other officers of the military establishment of the United States in respect to the circum- stances which entitle them to pay and emolu- ments. (U. S. V. Freeman, 3 How., 556.) Brevet pay and emoluments were given to officers of the Array by an act of July 6, 1812, section 4, and to the Marine Corps by act of April 16, 1814, section 3, which was substan- tially identical with the Army act. By act of April 16, 1818, it was provided that "the officers of the Army who have brevet com- missions shall be entitled to, and receive, the pay and emoluments of their brevet rank 932 The Navy. PL 2. REVISED STATUTES. Sec. 1607. when on duty and having a command accord- ing to their brevet rank, and at no other time. " Held, that said act of 1818, although in terms applicable only to officers of the Army, oper- ated to repeal the enactment of 1814 providing brevet pay for the Marine Corps as well as that of 1812 relating to brevet pay in the Army. (U. S. T. Freeman, 3 How., 556.) It can not be denied that the Marine Corps is an addition to the military establishment of the United States. It is declared to be so in the act by which it was organized. Though neither that fact nor the words "military establishment" as they are used in the acts of Congress will of themselves authorize the inclusion of officers of the Marine Corps within the words "officers of the Army, " nevertheless, considering the subject matter of the act of 1818, the application of the second section of that act to all brevetted officers, and the as- similation of the Marine Corps by the act of 1814 to the Army, giving to its officers brevet commissions and pay in exactly the same way as they were given to the officers of the Army by the act of 1812, held that Congress intended by the act of 1818 to place the officers of the Marine Corps and the officers of the Army upon the same footing in respect to brevet pay and emoluments. (U. S. v. Freeman, 3 How., 556.) The words, "officers of the Army," in the act of 1818, though descriptive of a particular Sec. 1605. [Advancement in number.] Any officer of the Marine Corps may, by and with the advice and consent of the Senate, be advanced not exceeding tliirty numbers in rank, for eminent and conspicuous conduct in battle or extraordinary heroism. — (21 Apr., 1864, c. 63, s. 6, v. 13, p. 54. 24 Jan., 1865, c. 19, s. 1, V. 13, p. 424.) class, were intended, as shown by their con- nection with the subject matter of the act, to comprehend all officers of the military estab- lishment of the United States who, when the act was passed, were only under like circum- stances entitled to brevet pay and emoluments. (U. S. V. Freeman, 3 How., 556.) T\'Tiere a captain in the Marine Corps acts as brevet lieutenant colonel, and is paid as such, he can not, duiing the same period, receive either the pay or allowances attached to the duties of captain. (U. S. v. Freeman, 25 Fed. Cas. No. 15163.) Brevet officers of the Marine Corps were included under the Army Regulations of March 1, 1825, and also in the regulation upon the subject of brevet pay sanctioned by the President December 1, 1836, and could claim brevet pay and emoluments under the Army Regulations of 1841 . This right to brevet pay results from the Marine Corps having been subjected by the act of 1798 and by other acts of Congress to the same rules and articles of war "as are prescribed for the military establish- ment of the United States," and from the exception in section 2 of the act of June 30, 1834, taking them out of the regulations which might be established for the Navy, when detached for service with the Army by order of the President of the United States. (U. S. V. Freeman, 3 How., 556.) carried as an additional number in the grade or with the rank of colonel shall be held to fill a vacancy in the grade of briga- dier general. See note to section 1597, Revised Statutes; and see, generally, note to section 1506, Re- vised Statutes. See notes to section 1407, Revised Statutes, as to medals of honor, etc. By sections 1506-1508, Revised Statutes, pro- vision is made for the Navy similar to sec- tions 1605-1607, relating to the Marine Corps; bv acts of March 3, 1901 (31 Stat., 1108), and June 16, 1906 (34 Stat., 296), officers so advanced are to be carried as additional to the numbers of each grade in which they serve; by act of August 29, 1916 (39 Stat., 608), the promotion to the grade of brigadier general of any officer Sec. 1606. [Promotion when grade is full.] Ajiy officer who is nominated to a higher grade by the provisions of the preceding section shall be promoted, notwithstanding the number of said grade may be full, but no further promo- tion shall take place in that grade, except for like cause, until the number is reduced to that provided by law. — (24 Jan., 1865, c. 19, s. 2, v. 13, p. 424.) See section 1605, Revised Statutes, and references thereunder. Sec. 1607. [Promotion for gallantry.] Any officer of the IVIarine Corps may, by and with the advice and consent of the Senate, be advanced one grade, if, upon recommendation of the President by name, he receives the thanks of Congress for highly distinguished conduct in conflict vnih. the enemy, or for extraordinary heroism in the line of his profession. — (16 July, 1862, c. 183, s. 9, V. 12, p. 584. 24 Jan., 1865, c. 19, s. 2, v. 13, p. 424.) See section 1605, Revised Statutes, and references thereunder. 933 Sec. 1608. PL 2. REVISED STATUTES. The Navy. Sec. 1608. [Enlistment. Superseded.] This section provided as follows: "Sec. IGOS. EnlistinentdintotheMarineCorps shall be for a period not less tlian five years. "^ (11 July, 1870, Ho3. 106, v. 10, p. 387.) It was superseded by act of March 3, 1901 (31 Stat., 1132), which provided "that here- after the enlistments into the Marine Corps shall be for a period of not less than four years." By act of June 4, 1920, section 7 (41 Stat., 836 1, it is pro\ided that hereafter enlistments in the Navy or Marine Corps may be for terms of two, three, or four years, and all laws now applicable to four years enlistments shall apply, under such regulations as may be prescribed by the Secretary of the Navy to enlistments for a shorter period, with proportion- ate benefits upon discharge and reenlistment. Absence to be made good. — By act of August 29, 1916 (39 Stat., 580), as amended by act of July 1, 1918 (40 Stat., 717), it was provided that no enlistment in the Navy or Marine Corps shall be regarded as complete until the enlisted man has made good all time lost on account of injury, sickness, or disease resulting from his own misconduct. (See note to sec. 1624 R. S.. art. 8.) Detention after expiration of enlist- ment. — See note to section 1422, Revised Statutes. Transfers from the Hospital Corps to the Marine Corps, and transfers of the marines to the Hospital Corps, are authorized by act of August 29, 1916 (39 Stat., 572). See note to section 1421, Rex'ised Statutes. Transfers from Army to Marine Corps. — See section 1421, Revised Statutes. Minority enlistments in the Marine Corps are governed by section 1418, Revised Statutes, relating to the Navy. (See note to that section, under "Minority enlistments in Marine Corps governed by Navy laws," and note to sec. 761, R. S., uncier "Disposition of party claiming discharge from Marine Corps on ground of fi-audulent enlistment.") Qualifications for enlistment in the Navy are prescribed by sections 1418-1420, Re\ised Statutes, which apply to the Marine Corps, ex- cept as otherwise specifically provided. (See notes to said sections.") Extension of enhstments in the Marine Corps. — See note to section 1418, Re\'ised Statutes. See also act of April 25, 1917 (40 Stat., 38), expressly authorizing extension of minority enlistments in the Marine Corps. Naturalization of aliens serving in the Marine Corps is provided for by act of May 9, 1918 (40 Stat., 542). Naturalization of aliens serving in the Marine Corps Reserve is authorized by act of Mar 22, 1917 (40 Stat., 84), made applicable to the Marine Corps Reserve by act of August 29, 1916 (39 Stat., 593). As to enlistment of aliens in the Marine Corps, see note to section 1420, Revised Statutes, under "Aliens not to be enlisted." For decisions relating to enhstments in the Navy and Marine Corps, see generally notes to sections 1418-1422, Revised Statutes. Advertising for recruits. — By act of July 1, 1918 (40 Stat., 736), under "Trans- portation and recruiting, Marine Corps," it was provided "that hereafter authority is hereby granted to employ the services of adv'ertising agencies in advertising for recruits under such terms and conditions as are most advantageous to the Government." Enlistment of women. — By act of Julv 11, 1919 (41 Stat., 152), it was provided "that the words 'enlisted men,' as contained in prior appropriation Acts, shall not be construed to deprive women, enlisted or enrolled in the naval service, of the pay, allowances, gratui- ties, and other benefits gi-anted by law to the enlisted personnel of the Navy and Marine Corps." Status of appHcants for enhstment. — See note to section 1418, Revised Statutes, under "\\Tien enlistment complete"; see also note to section 1609, Revised Statutes. Discharge prior to expiration of enhst- ment.— The act of March 3, 1809, directed enlistments in the Marine Corps to be for five years, unless sooner discharged; but did not provide by whom such discharges should be granted. Held, that the commandant of the Marine Corps can not legally grant discharges to marines before the expiration of their term of enlistment; but that such discharges can only be granted by the President of the United States or in conformity to such regulations as he may think proper to prescribe. (2 Op. Atty. Gen., 353.) The authority to rescind a contract between the United States and the individual, which is the effect of a discharge from the Marine Corps prior to expiration of enlistment, is a power which can exist only by viiiue of an •express grant. Under the Army law (held applicable in this case to the Marine Corps) the major general commanding the Army of the United States can not grant a discharge; accordingly held that it is not competent for the commandant of the Marine Corps to gi-ant discharges to marines before the expiration of their enlistment, and that, until Congress shall othervnse provide, such discharges can only be granted by the President or in conformity to such regulations as he may think proper to prescribe. (2 Op. Atty. Gen., 353.) A private in the Marine Corps of the United States, discharged from the service as a person of bad character and unfit for service, by order of the Secretary of the Navy thi'ough the com- mandant of the cor]:>s, without court-martial or other competent military proceeding, forfeits thereby his retained pay under the provisions of section 1281, Revised Statutes; but he may claim and recover his transportation and sub- sistence from the place of his discharge to the place of his enlistment, enrollment, or original muster into the service, under the provisions of section 1290, Revised Statutes. (U. S. v. Kingsley, 138 U.S., 87, reversing 24 Ct. Cls., 219.) A discharge issued for unfitness for service and general bad character, without trial by court-martial, can not be considered as "a punishment for an offense" within the mean- ing of section 1290, Revised Statutes; the question whether such punishment must neces- sarily be awarded by the judgment of a court- martial, not presented in this case and no 934 The Navy. PL 2. REVISED STATUTES. Sec. 1610. opinion expressed on it. (U. S. v. Kingsley, 138U. S.,87.) By his enlistment the soldier contracts for honest and faithful service, and the rendition of such ser\dce is a condition precedent to his right to recover his retained pay. The fact that he has not rendered such service may be shown as well by his military record as by the judgment of a coiu-t-martial. (U. S. v. Kings- ley, 138 U. S., 87, reversing 24 Ct. Cls., 219.) "Reenlistment" construed. — An enlist- ment in the Marine Corps after an honorable discharge from the Army or Navy is not a "reenlistment" within the meaning of section 7 of the act of June 4, 1920 (41 Stat., 836). The term "reenlistment" as therein used signifies an entry into the same branch of the service from which honorably discharged. (27 Comp. Dec, 170.) A soldier honorably discharged from the Army who enlists in the Marine Corps is en- titled, under section 1612, Revised Statutes, to the same additional pay that he would be entitled to if his reenlistment had been in the Army. (Walton v. U. S., 31 Ct. Cls., 196, con- struing sec. 1284, R. S.) Sec. 1609. [Oath.] The officers and enlisted men of the Marine Corps shall take the same oaths, respectively, which are provided by law for the officers and enlisted men of the Army. — (11 July, 1798, c. 72, s. 4, v. 1, p. 595.) By act of March 3, 1899, section 25 -(30 Stat., 1009), it was provided that "the oath of allegiance now provided for the officers and men of the Army and Marine Corps shall be achninistered hereafter to the officers and men of the Navy." The oath of allegiance provided by the Revised Statutes for enlisted men of the Army was contained in section 1342, Revised Stat- utes, article 2, quoted under section 1418, Revised Statutes. The oath of allegiance now provided by law for enlisted men of the Army is contained in article 109 of the Articles of War, as em- bodied in act of June 4, 1920 (41 Stat., 809), as follows: "At the time of his en- listment every soldier shall take the follow- ing oath or affirmation : ' I , , do sol- emnly swear (or affirm) that I will bear true faith and allegiance to the United States of America; that I will serve them honestly and faithfully against all their enemies whomsoever; and that I will obey the orders of the President of the United States and the orders of the officers ap- pointed over me, according to the Rules and Articles of War.' This oath or affirma- tion may be taken before any officer." The oath of office prescribed for persons in the military service is set forth in Revised Statutes, section 1757, as amended by act of May 13, 1884, section 2 (23 Stat., 22). The oath of office to be taken by enlisted men of the Navy and Marine (Jorps designated as Navy mail clerks or assistant Navy mail clerks is that prescribed for employees of the Postal Service. (See sees. 391 and 392, R. S., and note thereto, for form of this oath.) Men drafted into service.— The Articles of War, requiring every soldier at the time of his enlistment to take an oath of allegiance, apply only to voluntary enlistment; and one certified into the military service under the selective draft act of May 18, 1917 (40 Stat., 76), can not escape Liability to military ser^'ice because he had not taken the reqvured oath. (Franke v. Murray, 248 Fed. Rep., 865.) _ Applicants for enlistment. — ^Applicants for enlistment who have been accepted pro- visionally, but have yet to be subjected to the first examination at the recruiting depots and to take the oath before they become a part of the soldiery of the Nation, are not "troops of the United States" (as used in the land-grant acts in relation to transportation for the Gov- ernment). It is the actual enlistment, the oath of allegiance, that changes the status from a civilian to a soldier. The officers at the re- cruiting stations are expressly forbidden by Army Regulations to administer this oath. Such applicant is then not even a potential soldier; for he may be rejected on final examina- tion. And it is the actual and not the potential status that must govern. The fact that under the Army Regulations he receives the same rations as an enlisted man, and that he is sub- ject to the same medical attention, does not effect a change of status. And the fact that the transportation is for the purposes of the Government in connection with its military establishment is immaterial. The Army ap- propriation acts make specific provision for the transportation of "troops" and of "re- cruits." (U. S, V. Union Pac. R. Co., 249 U. S., 354, 359, affinning 52 Ct. Cls., 226.) For other cases, see note to section 1418, Revised Statutes, under "When enlistment complete." Sec. 1610. [Exemption from arrest.] Marines shall be exempt, while enlisted in said service, from all personal arrest for debt or contract. — (11 July, 1798, c. 72, s. 5, v. 1, pp. 595, 596. 30 June, 1834, c. 132, s. 3, v. 4, p. 713.) As to privilege from arrest in civil cases, see note to Constitution, Article I, section 6, clause 1. As to jurisdiction of civil authorities over persons in the military service, see notes to Constitution, Article I, section 8, clauses 11, 13, and 14; and notes to sections 355, 417, and 753, Revised Statutes. Officers of the Navy or Marine Corps, finally sentenced by civil authorities to imprison- ment in State or Federal penitentiary, may be dropped from the rolls of the Navy or 936 Sec. 1612. l>t. J. REVISED STATUTES. The Navy. Marino Corps, and shall 1)0 inoligiblo for oxenipt from arrest. If public policy requires reappointment. (Act Apr. 2, 1918, 40 the extension of this privilege to these ofiicers, Stat., 501.) it is not to be doubted that Congress will so Exemption limited to rnarines. — The direct in explicit tenns whenever their atten- proper construction of the act of July 11, 1798, tion may be called to it. (3 Op. Atty. Gen., section 5, relating to the Marine Corps, fails to 119.) include mitl>hiiunen, who are, therefore, not Sec. 1611. [Companies and detachments.] The Marine Corps may be formed into as many companies or detachments as the President may direct, with a proper distribution of the commissioned and non-conomissioned officers and musicians to each company or detachment. — (11 July, 1798, c. 72, s. 1, V. 1, p. 594.) By act of August 29, 1916 (39 Stat., 586), it was pro^■ided that summary courts-martial may be ordered by the conunanding officer of any "brigade, regiment, or separate or detached battalion, or other separate or detached command," etc., for the trial of enlisted men in the naval seriace ; and that when empowered by the Secretary of the Na\n>', general courts-martial may be convened by the commanding officer of "a brigade or larger force of the naval eer^-ice on shore beyond the continental limits of the United States"; and in time of war by the commanding ofUcer of "a brigade or larger force of the Navy or Marine Corps on shore not attached to a navy yard or naval station," if so em- powered by the Secretary of the Navy. Organization into reg^iments and bri- gades. — The organization of the Marine Corps is sui generis, in that there is no provision of law for its formation into regiments or bat- talions, or the assignment of its officers to any particular command. (Berrvman v. U. S., 43 Ct. (Is., 397.) By order of the Major General Commandant the ofiicers in charge of the marines at Cavite, Sec. 1612. [Pay and allowances.] The officers of the Marine Corps sliall bo entitled to receive the same pay and allowances, and the enhsted men shall be entitled to receive the same pay and bounty for re-enlisting, as are or may be pro^nded by or in pursuance of law for the officers and enlisted men of lilse grades in the infantry of the Army. — (30 June, 1834, c. 132, s. 5, v. 4, p. 713. 1854, c. 268, s. 1, v. 10, p. 58G.) P. I., were organized into the first brigade of marines, composed of two regiments of two battalions each. The order of the commandant was presumably made by direction of the President, pursuant to section 1611, Revised Statutes, and the name of regiments given to said liodies of marines did not change their character, but they remained under the generic term of "detachments" contained in section 1611. (Berryman v. U. S., 43 Ct. Cls., 397.) The act of April 26, 1898, section 7 (30 Stat., 365), provided that "in time of war every officer serving with troops operating against an enemy who shall exercise, under assignment in orders issued by competent authority, a com- mand above that pertaining to his gi-ade, shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised." A lieutenant colonel of the Marine Corps was assigned to the command of a so-called regiment. Held, that he was not an officer having a command above that pertain- ing to his grade, within the act of April 26, 1898, and was not entitled to the pay of a colonel in the Marine Corps. (Ben-yman r. U. S., 43 Ct. Cls., 397.) 5 Aug., General note.— Many statutory enactments subsequent to the lle\'ised Statutes relate specifically to the pay and allowances of the Marine Corps, and section 1612, Revised Stat- utes, making the Marine Corps subject to Army laws as to pay and allowances, is modi- fied to the extent that Congress has thus other- \\-i.se pro\ided. Such specific enactments re- lating to the Marine Corps are set out separately below. By act of "May 18, 1920 (41 Stat., 601), tempo- rarily increasing the pay and allawances of the Army, Navy, Marine Corps, Coast Guard, Coast and Geodetic Sui-vey, and Public Health Service, it was provided (sec. 13, 41 Stat., 604) that "a special committee, to be composed of five Members of the Senate, to be appointed by the Vice President, and five Members of the House of Representatives, to be appointed by the Speaker of the House of Representatives, shall make an investigation and report recom- mendations to their respective Houses not later than the first Monday in January, 1922, relative to the readjustment of the pay and allowances of the commissioned and enlisted personnel of the several ser\dces herein mentioned." LAWS RELATING SPECIFICALLY TO MARINE CORPS. Sea duty pay. — By act of March 3, 1915 (38 Stat., 948), it was provided "that the increased compensation as now fixed by law for the Ma- rine Corps for foreign shore service shall here- after be paid to the ofiicers and enlisted men of that corps while on sea duty, in the same manner and under the same conditions as is pro\dded by the act approved May thirteenth. 936 The Navy. Ft. 2. REVISED STATUTES. Sec. 1612. nineteen hundred and eight, for officers of the Navy." (See Army laws noted below as to pay for foreign shore service; see note to sees. 1556 and 1571, R. S., as to sea pay allowed officers of the Navy.) Shore duty beyond seas. — See note below, under Army laws applicable to Marine Corps. Foreign shore service, wanant officers. — "That marine gunners and quartermaster clerks of the Marine Corps assigned to foreign shore ser\ice shall hereafter be entitled to the same increased compensation and under the same contlitions as is now or hereafter allowed by law to com- missioned officers of the Marine Corps." (Act Mar. 4, 1917, 39 Stat., 1188.) Marines serving as firemen. — See section 1570, Re\'ised Statutes, as amended by act of March 29, 1918 (40 Stat., 499). Marines detained after expiration of enlist- ment. — See section 1422, Re\i8ed Statutes, and note thereto. Navy mail clerks. — See note to section 1569, Revised Statutes. _ By act of May 27, 1908 (35 Stat., 417), addi- tional compensation was authorized for enlisted men of the Navy designated as Navy mail clerks and assistant Navy mail clerks, in amounts to be fixed by the Secretary of the NaA'y, not exceeding $500 per annum for mail clerks and $300 per annum for assistant mail clerks. By act of August 24, 1912, section 11 (37 Stat., 560), this pro\'ision was expressly extended to include enlisted men of the Marine Corps so designated. (See also, acts Aug. 24, 1912, 37 Stat., 554; Mar. 4, 1917, 39 Stat., 1188; and July 1, 1918, 40 Stat., 718.) Aviation duty. — Additional pay and allow- ances for officers and enlisted men of the Navy and Marine Corps detailed for duty involving actual flying in air craft, were authorized by act of March 3, 1915 (38 Stat., 939), as amended by act of August 29, 1916 (39 Stat., 582-586). See note to section 1556, Revised Statutes. Increased "allowances" for aviation duty were prohibited in the cases of "officers, enlisted men, and student flyers of the naval ser\dce," by act of July 1, 1918 (40 Stat., 718.) Absence from duty. — By act of August 29, 1916 (39 Stat., 580), as amended by act of July 1, 1918 (40 Stat., 717), it was provided that no officer or enlisted man of the Navy or Marine Corps shall receive pay for any period in excess of one day that he is absent from duty on ac- count of injury, sickness, or disease resulting from his own intemperate use of drugs of alco- holic Liquors, or other misconduct. By act of March 4, 1917 (39 Stat., 1191), it was pro\'ided ' ' that hereafter no part of the pay and allowances authorized for enlisted men detailed as clerks and messengers in the office of the Major General Commandant and the several staff offices shall be forfeited when granted furlough for not exceeding thirty days in each calendar year." Longevity pay. — "Hereafter longevity pay for officers in the Army, Navy, Marine Corps, Coast Guard, Public Health Service, and Coast and Geodetic Survey shall be based on the total of all service in any or all of said services." (Act May 18, 1920, sec. 11, 41 Stat., 604.) See also statutory enactments noted under section 1600, Revised Statutes. Allotments of pay by officers of the Navy and Marine Corps are authorized by act of June 10, 1896 (29 Stat., 361.) Employment by contractors furnishing naval supplies or war material to the Govermnent, was prohibited in cases of officers of the Navy and Marine Corps by act of June 10, 1896 (29 Stat., 361), which pro\'ided that no payments were to be made to such officers while so em- ployed. Warrant officers and pay clerks. — By act of August 29, 1916 (39 Stat., 611), it was provided that marine gunners and quartermaster clerks shall "receive the pay, allowances, and privi- leges of retirement of warrant officers in the Navy." (See note to sec. 1556, R. S., as to pay of warrant officers in the Navy. See also note above, under "Foreign shore service, warrant officers.") By act of July 1, 1918 (40 Stat., 735), it was provided that pay clerks shall "receive the same pay, allowances, and other benefits now provided by law for clerks for assistant pay- masters." By act of June 24, 1910 (36 Stat., 625), it was pro\ided that clerks to assistant paymasters "shall receive the same pay, allowances, and other benefits as are now or may hereafter be provided for paymasters' clerks of correspond- ing length of service in the United States Army." By act of March 3, 1911 (36 Stat., 1044), it was provided that "hereafter the pay and allow- ances of Army paymasters' clerks shall be the same as provided by law for Navy paymasters' clerks on shore duty, and they shall also be entitled to the same right of retirement with the same retired pay as is now allowed Navy paymasters' clerks." By act of June 24, 1910 (36 Stat., 606), relating to the Navy, it was provided that "all paymasters' clerks shall, while holding appoint- ment in accordance with law, receive the same pay and allowances and have the same rights of retirement as warrant officers of like length of service in the Navy. ' ' (As to pay and allow- ances of warrant officers, see notes to sees. 1556, 1558, and 1578, Revised Statutes.) By act of August 24, 1912 (37 Stat., 592), it was provided that Army paymaster's clerks shall be known as pay clerks, and shall con- continue to have the pay, allowances, rights, and privileges now allowed by law. By act of March 2, 1913 (37 Stat., 708), re- lating to the Army, appropriations were made for 85 pay clerks, and it was provided "that hereafter no further appointments of pay clerks shall be made." Appropriations for Army pay clerks were continued in annual appropria- tion acts to and including act of March 4, 1915 (38 Stat., 1068); since which date such appro- priations have been discontinued, except for retired pav clerks. _ By act of March 3, 1915 (38 Stat., 942), the title "paymaster's clerk" in the Navy was changed to pay clerk, and the grades of acting pay clerk, pay clerk, and chief pay clerk created, vrith a provision that pay clerks were thereafter to be warranted from acting pay clerks, and that pay clerks and acting pay clerks "shall have the same pay, allowances, and other benefits as are now or may hereafter 937 Sec. 1612. rt. 2. REVISED STATUTES. The Navy. be allowed other warrant officers and acting warrant oflicorp, respectively." Hy act of .lune 3, 191() (39 Stat., 170), it was provided that the Quartermaster Corps in the Army shall consist, amone; others, of "the pay clerks now in active service, who shall here- after have the rank, pay, and allowances of a second lieutenant, and the President is hereby authorized to appoint and commission them, by and Avith the advice and consent of the Senate, second lieutenants in the Quarter- master Corps, United States Army." (See 23 Comp. Dec, 508.) liy act of August 29, 1916 (39 Stat., 625, 626), it was provided that Army field clerks, and field clerks. Quartermaster Corps, "shall re- ceive the same allowances, except retirement, as heretofore allowed by law to pay clerks." By act of June 4, 1920 (41 Stat., 761), further appointments as Army field clerks and field clerks. Quartermaster Corps, were prohibited, and persons serving as such were rendered eligible for appointment as warrant officers in the Army. Gunnery sergeants. — By act of August 22, 1912 (37 Stat., 351), "gunnery sergeants of the Marine Corps shall hereafter receive the same pay, and be entitled to the allowances, rank, continuous-service pay, and retired pay of a first sergeant in said corps." (See also note to sec. 1596, R. S.) Drum major. — "The pay of the drum major shall be the same as that now established, or that may be hereafter established, for first ser- geants in the Marine Corps of the same length of service." (Act July 26, 1894, 28 Stat., 138.) Cooks. — ' ' That hereafter privates regularly de- tailed and ser"\dng as cooks shall receive, in addi- tion to the pay otherwise allowed by law, the fol- lowing: First-class cooks, ten dollars per month; second-class cooks, eight dollars; third-class cooks, seven dollars; and fourth-class cooks, five dollars." (Act Mar. 2, 1907, 34 Stat., 1200.) Forage.— By act of March 3, 1885 (23 Stat., 432), under "Marine Corps," appropriations were made for forage, with the proviso "that no commutation for forage shall be paid." Extra-duty pay. — "That hereafter extra-duty pay will not be allowed to enlisted men of the Marine Corps except when they are regularly detailed thereon by a written order of the com- mandant of the corps." (Act Mar. 3, 1909, 35 Stat., 776. See Army law noted below as to extra-duty pay.) Duty in Haiti. — Officers and enlisted men of the Marine (^orps detailed for duty to assist the Republic of Haiti shall be entitled to the same credit for such service, for longevity, retire- ment, foreign service, pay, and for all other purposes, that they would receive if they were serving with the Marine Corps. (Act June 12, .1916, sec. 5, 39 Stat., 224.) Gun pointers. — During the period of the pres- ent war any enlisted man of the Marine Corps qualified and detailed as a gun pointer or gun captain shall be entitled to the additional pay provided for such qualification and detail, while temporarily absent by proper authority or while performing other temporary duty. (Act Mar. 29, 1918, 40 Stat., 500. _ See below, under "Additional pay for special qualifica- tions, details, etc.," and see decisions of Comp- troller of the Treasury noted below.) Enlistments changed to duration of war. — Any man who enlisted in the Marine Corps after February 13, 1917, and before November 11, 1918, for a term of four years, and who, upon his own application, was regarded as having en- listed for the duration of tlie war and honorably discharged, and within four months thereafter reenlisted in the Marine C'orps for a period of four years, "shall be entitled to receive the benefits and gratuity pay provided by existing law for reenlistments;" or, if otherwise entitled to an honorable discharge, may extend his en- listment for a period of one, two, three, or four years, and shall be entitled to the same rights, privileges, pay and allowances in all re- spects as now provided by law for men who ex- tend enlistments on completion of terms of en- listment, except as to gi-atuity pay; and as to such gratuity pay he shall be entitled to an allowance of one months' pay for extension of one year, two months' pay for extension of two years, and three months' pay for extension of three years. (Act July 11, 1919, 41 Stat., 139, 140.) Reenlistment after reserve service. — Enlisted men of the Marine Corps discharged to accept appointments as commissioned or warrant officers in the Marine Corps Reserve, who reen- list in the Marine Corps within three months after termination of their reserve service, shall be restored to the grade or rank held by them before being discharged to accept such appoint- ments, and their service in the Regular Marine Corps including their active service in the Ma- rine Corps Reserve shall be regarded as contin- uous for purposes of continuous service pay. (Act July 11, 1919, 41 Stat., 141.) Wan-ant officers and pay clerks having reserve service. — Any warrant officer or pay clerk in the Marine Corps who has accepted or may here- after accept appointment as a commissioned officer in the Marine Corps Reserve shall be en- titled, upon termination of his appointment as a commissioned officer, to revert to his former status as a warrant officer or pay clerk in the Marine Corps, and to count all active serA-ice for purposes of longevity pay and retirement. (Act July 11, 1919, 41 Stat., 141.) Special allowances for maintenance .—By act of June 4, 1920 (41 Stat., 813), under "Pay, Miscellaneous," it was provided that "this ap- propriation and the appropriation 'Pay, Ma- rine Corps, ' shall be available for special allow- ances for maintenance to officers and enlisted men of the Navy and IMarine Corps serving un- der unusual conditions." Retired enlisted men. — See note to Section 1622, Revised Statutes. Marine Band. — See note to section 1613, Re- \ised Statutes. Additional pay for special qualifications, de- tails, etc. — The naval appropriation act June 4, 1920 (41 Stat., 829), _ under "Pay, Marine Corps," makes appropriation for "additional compensation for enlisted men of the Marine Corps qualified as expert riflemen, sharp- shooters, marksmen, or regularly detailed as gun captains, gun pointers, mess sergeants, cooks, messmen, signalmen, or holding good- 938 The Navy. Ft. 2. REVISED STATUTES. Sec. 1612. conduct medals, pins, or bars, including in- terest on deposits by enlisted men, post-ex- change debts of deserters, under such rules as the Secretary of the Navy may prescribe, and the authorized travel allowance of discharged enlisted men, and for prizes for excellence in gunnery exercise and target practice, and for pay of enlisted men designated as Navy mail clerks and assistant Navy mail clerks, both afloat and ashore." (See Army laws, and de- cisions of Comptroller of the Ti-easury, noted below, and see notes above, under ' ' Cooks' ' and "Gun pointers.") Medals of honor, etc. — See note to section 1407, Re\ised Statutes, and see 24 Op. Atty. Gen., 579, noted thereunder. See also act of February 4, 1919 (40 Stat., 1056), and 26 Comp. Dec, 464. Commutation of fuel, enlisted men. — By act of April 27, 1904 (33 Stat., 407), it was provided that ' ' the quartermaster of the Marine Corps be, and is hereby, authorized and dii-ected to pay from appropriations fuel. Marine Corps, to en- listed men of the Marine Corps employed as clerks and messengers in the office of the com- mandant and in the offices of the staff officers of the Marine Corps commutation of fuel, at nine dollars each per month for clerks and eight dollars each per month for messengers, from and after January twenty-second, nine- teen hundred and four,' when, by a decision of the Comptroller of the Treasury, enlisted men so employed were denied the right to said com- mutation in said amounts." Commutation of quarters, enlisted men. — By actof June4, 1920 (41 Stat., 832), appropriation was made for "commutation of quarters for en- listed men on recrmting duty, for officers and enlisted men ser^ing with troops where there are no public quarters belonging to the Govern- ment, and where there are not sufficient quar- ters possessed by the United States to accommo- date them, for enlisted men employed as clerks and messengers in the offices of the comman- dant, adjutant and inspector, paymaster, and quartermaster, and the offices of the assistant adjutant and inspectors, assistant paymasters, assistant quartermasters, at S21 each per month, and for enlisted men employed as messengers in said offices, at $10 each per month." Bounty for reenlisting. — By act of June 4, 1920, section 7 (41 Stat.. 836), _ authorizing short-term enlistments in the Marine Corps, it was provided that "all laws now applicable to four-year enlistments shall apply, under such regulations as may be prescribed by the Secre- tary of the Navy, to enlistments for a shorter period ^\"ith proportionate benefits upon dis- charge and reenlistment: Provided. That here- after the Secretary of the Navy is authorized, in his discretion, to establish such grades and ratings as may be necessary for the proper administration of the enlisted personnel of the Navy and Marine Corps." (See27 Comp. Dec, 101, noted below, as to repeal in part of sec 1612.) Mileage, travel without troops. — By act of June 10, 1896 (29 Stat., 376), it was provided that "hereafter officers of the Marine Corps traveling under orders without troops shall be allowed the same mileage as is now allowed officers of the Navy traveling without troops." (See note to sec. 1566, R. S. And see decisions of Comptroller of the Treasury, noted below.) Repeated travel. — "Hereafter in cases where orders are given to officers of the Navy or Ma- rine Corps for travel to be performed repeatedly between two or more places in such vicinity as in the discretion of the Secretary of the Navy is appropriate, he may direct that actual and necessary expenses only be allowed." (Act July 1, 1902, 32 Stat., 663. See note to sec. 1566, R. S.) Transportatio n furnished. — " H er eaf ter no mileage shall be paid to any officer where Gov- ernment transportation is fui'nished such officer." (Act June 30, 1914, 38 Stat., 410, under "Pay, Marine Corps.") Furlough certificates. — The Secretary of the Navy is authorized to issue to wounded and otherwise disabled sailors or marines, under treatment in any hospital, who are given fur- loughs at any time, a furlough certificate which shall entitle such sailor or marine to purchase a ticket to and from his home during the period of furlough at the rate of one cent per mile. (Act June 5. 1920, 41 Stat., 975, 976.) Transportation of families. — By act of May 18, 1920, section 12 (41 Stat., 604), transportation in kind was authorized for the \viie and de- pendent child or children of any commissioned officer, noncommissioned officer of the grade of color sergeant and above, including any non- commissioned officer of the Marine Corps of coiTesponding grade, or warrant officer, upon the permanent chaiige of station by such, officer or noncommissioned officer. (By Army act of June 4, 1920, sec. 4, 41 Stat., 761, it was provided that this transportation privilege ' 'shall apply only to enlisted men of the first three grades.") Reimbursement for lost clothing, etc. — By act of October 6, 1917 (40 Stat., 389), provision was made for reimbursement in money by the pay- master of the Marine Corps, or reimbursement in kind by the quartermaster of the Marine Corps to persons in the Marine Corps for prop- erty lost or destroyed in the service. (See sec. 290, R. S.) Quarters for dependents. — By act of December 24, 1919 (41 Stat., 384), it was provided that officers of the Marine Corps shall be entitled, during the present emergency, to all the rights and benefits under the act of April 16, 1918 (40 Stat., 530), authorizing quarters in kind for dependents of officers of the Army during absence in the field, or the authorized commutation therefor, including allowance of heat and light. By act of May 18, 1920, section 2 (41 Stat., 602). said rights and benefits were continued until June 30, 1922, and it was provided "That such rights and benefits as are prescribed for officers shall apply equally for enlisted men now entitled by regulations to quarters or to conunutation therefor." When quarters not available. — By act of July 1, 1918 (40 Stat., 718), it was provided that "hereafter the Secretary of the Nav^ may de- termine where and when there are no public quarters available for persons in the Nav^y and Marine Corps, or serving therewith, vsithin the meaning of any Act or parts of Acts relating to the assignment of quarters or commutation therefor." 54641°— 22- -60 939 Sec. 1612. PL 2. REVISED STATUTES. The Navy. Travel allowance on discharge. — By act of February 28, 1919, section 3 (40 Stat., 1202, 1203), it was provided that any enlisted man lionorably discharged from llie Marine Corps shall receive 5 cent.s per mile from place of discharge to his actual bona fide home or res- idence, or original muster into the serAdce, at Ms option, w-ith a proviso that for sea travel on discharge transportation and subsistence onlv shall be furnished. (See note to sec. I5(ii), II. S.) By act of June 4, 1920, section 6 (41 Stat., 836), said travel allowance was made payable to any enlisted man thereafter discharged from any branch of the naval serv- ice for the purpose of reenlisting in the Navy or Marine Corps, or who should thereafter extend his enlistment therein. Deposits of savings. — By act of June 29, 1906 (34 Stat., 579), enlisted men of the Marine Corps were authorized to deposit their savings, and receive interest thereon fi-om the Govern- ment, in the same manner and under the same conditions as provided for enlisted men of the Navy, except that sums so deposited shall pass to the credit of the appropriation for pay of the Marine Corps. (See note to sec. 1569, R. S.) Death gratuity. — Payment of an amount equal to six months' pay to the widow, cliild or cliildren, or other designated dependent re- lati\e of any officer or enlisted man of the Regular Marine Corps dying from wounds or dis- ease not the result of his own misconduct, was authorized by act of June 4, 1920 (41 Stat., 824). Sale of miiforvis at cost. — By act of July 11, 1919 (41 Stat., 154), under "Clothing, Marine Corps," it was provided that "hereafter this appropriation shall be available for the pur- chase of uniforms, accouterments, and equip- ment for sale at cost price to officers under such regulations as the Secretary of the Navy may prescribe." Sale of subsistence stores, etc. — By act of August 29, 1916 (39 Stat., 613), under "Pro\d- sions. Marine Corps." it was provided: "That hereafter so much of this appropriation as may be necessary may be applied for the purchase, for sale to officers, enlisted men, and civilian employees, of such articles of subsistence stores as may from time to time be designated and under such regulations as may be pre- scribed by the Secretary of the Navy." (The same provision was contained in identical language in appropriation acts for prior years. It was omitted from the act of March 4, 1917, and has not since appeared, its ondssion being for the reason that it was regarded as per- manent legislation as it already existed. (See Hearings before Committee on Naval Affairs, House of Representatives, 64th Cong., 2d sess., p. 365, with reference to "Provisions, Marine Corps"; see also act Mar. 4, 1913, 37 Stat., 909, and note thereto^ Honorably discharged officers and enUsted men of the Navy or Marine Corps, while under medical treatment by public health service, may be permitted to purchase subsistence stores and articles of other authorized sup- plies, except articles of uniform, from the Army, Navy, and Marine Corps, at the same price as charged the officers and enlisted men of the Army, Navy, and Marine Corps. (Act June 5, 1920, 41 Stat., 976.) Subsistence supplies of the Army may be sold to officers and enlisted men of the Navy and Marine Corps at same prices charged of- ficers and enlisted men of the Army. (Act Aug. 29, 1916, .39 Stat., 630, which alsoproAdded that the officers and enlisted men of tlie Army shall be permitted to purchase subsistence supplies from the Navy and Marine Corps at the same price as is charged officers and en- listed men of the Navy and Marine Corps.) Articles of serviceable quartermaster property may be sold by the Quartermaster General of the Army to officers of the Navy and Marine Corps, for their use in the public service, in the same manner as these articles are now sold to officers of the Army. (Act Mar. 4, 1915, 38 Stat., 1079.) Temporary increases in pay of Marine Corps — . See act May 18, 1920 (41 Stat., 601), noted below imder "Army laws applicable to Marine Corps." ARMY LAW.S APPLICABLE TO MARINE CORPS. Pay of officers.— By act May 11, 1908 (35 Stat., 108), it was provided "that hereafter the an- nual pay of officers of the Army of the several grades herein mentioned shall be as follows: Major-general, eight thousand dollars; briga- dier-general, six thousand dollars; colonel, four thousand dollars; lieutenant-colonel, three thousand five hundred dollars; major, three thousand dollars; captain, two thousand four himdred dollars; first lieutenant, two thousand dollars; second lieutenant, one thousand seven himdred dollars." Mounted pay. — "Hereafter the United States shall furnish mounts and horse equipments for all officers of the Army below the gi-ade of major required to be moimted, but in case any officer below the grade of major required to be mounted pro\'ides himself with suitable mounts at his own expense, he shall receive an addi- tion to his pay of one hundred and fifty dollars per annum if he provides one mount, and two himdred dollars per annum if he provides two moimts." (Act May 11, 1908, 35 Stat., 108.) See note above, imder "Forage," for law relating to commutation of forage for Marine officers. Longevity pay of officers. — "There shall be allowed and paid to each commissioned officer below the rank of brigadier-general, including chaplains and others haAing assimilated rank or pay, ten per centum of their current yearly pav for each term of five years of service." (Sec. 1262, R, S.) "That from and after the first day of July,, eighteen himdred and eighty-two, the ten per centum increase for length of service allowed to certain officers by section twelve hundred and sixty- two of the Revised Statutes shall be computed on the yearly pay of the grade fixed by sections twelve hundred and sixty-one and twelve hundred and seventy -four of the Re- vised Statutes. "_ (Act June 30, 1882, 22 Stat. 118. See decisions of Supreme Court noted below as to longevity pay.) "The total amoimt of such increase for length of service shall iii no case exceed forty per centum on the yearly pay of the grade as provided by law." (Sec. 1263, R. S.) 940 The Navy. PL 2. REVISED STATUTES. Sec. 1612. " In no case shall the pay of a colonel exceed five thousand dollars a year; the pay of a lieu- tenant-colonel exceed" four thousand five hundred dollars a year, or the pay of a major exceed four thousand dollars a year." (Sec. 1267, R. S., as reenacted bv act May 11, 1908, 35 Stat., 108. But see act May 18, 1920, 41 Stat., 601, noted below, temporarily increas- ing pay of Army and Marine officers.) "In determining relative rank and increase of pay for length of service, * * * active duty performed while imder appointment from the United States Government, whether in the Regular, provisional, or temporaiy forces, shall be credited to the same extent as service under a Regular Army commission." (Act Jime 4, 1920, sec. 51, 41 Stat., 785, amending Act June 3, 1916, sec. 127, 39 Stat., 217. See also note to sec. 1600, R. S.) Pay not recZwcerf.— "That nothing herein contained shall be constnied so as to reduce the pay or allowances now authorized by law for any officer or enlisted man of the Army." (Act May 11, 1908, 35 Stat., 110.) Aids to general officers. — " The officers of the Army shall be entitled to the pay herein stated after their respective designations: * * * Aid to major general: two himdred dollars a year, in addition to pay of his rank. Aid to brigadier general: one hundred and fifty dollars a year, in addition to pay of his rank." (Sec. 1261, R. S.) See note to section 1556, Revised Statutes, as to additional pay allowed aids in the Navy. Foreign shore service. — See note above, under "Laws relating specificallv to Marine Corps." "Officers and enlisted men of the Marine Corps, who have been detailed, or may here- after be detailed, for shore duty in Alaska, the Philippine Islands, Guam, or elsewhere be- yond the continental limits of the United States, shall be considered as having been de- tailed for 'shore duty beyond seas,' and shall receive pay accordingly, with such additional pay as may be pro\T.ded by law for service in island possessions of the United States." (Act Mar. 3, 1901, 31 Stat., 1108.) "That hereafter the pay proper of all com- missioned officers and enlisted men serving beyond the limits of the States comprising the Union and the Territories of the United States contiguous thereto shall be increased ten per centum for officers and twenty per centum for enlisted men over and above the rates of pay proper as fixed by law for time of peace, and the time of such servdce shall be coimted from the date of departure from said States to the date of return thereto." (Act June 30, 1902, 32 Stat., 512.) ' ' That increase of pay for service beyond the limits of the States comprising the Union, and the territories of the United States contiguous thereto, shall be as now provided by law." (Act May 11, 1908, 35 Stat., 110.) _ "That hereafter the laws allowing increases of pay to officers and enlisted men for foreign service shall not apply to ser\dce in the Canal Zone, Panama, or Hawaii, or Porto Rico." (Act Aug. 24, 1912, 37 Stat., 576.) Officers and enlisted men who may hereafter serve on Army transports in the Philippine Archipelago, under the control and orders of the commanding general, Philippine Division, shall be entitled to receive the same rate of pay as is provided by law for officers and en- listed men serving at shore stations beyond the limits of the United States. (Act May 11, 1908, 35 Stat., 114.) Pay during absence. — "Officers when absent on account of sickness or wounds, or lawfully absent from duty and waiting orders, shall receive full pay; when absent with leave, for other causes, full pay during such absence not exceeding in the aggregate thirty days in one year, and half-pay during such absence exceed- ing thirty days in one year. WTien absent without leave, they shall forfeit all pay during such absence, unless the absence is excused as unavoidable." (Sec. 1265, R. S.) "All officers on duty shall be allowed, in the discretion of the Secretary of War, sixty days' leave of absence without deduction of pay or allowance: Provided, That the same be taken once in two years: And provided further , That the leave of absence may be extended to three months, if taken once only in three years, or four months if taken only once in four years." (Act July 29, 1876, 19 Stat., 102, amending act May 8, 1874, 18 Stat., 43. )_ Leaves of absence which may be granted officers of the Regular or Volunteer Army serv- ing in the Territory of Alaska or without the limits of the United States, for the purpose of returning thereto, shall be regarded as taking effect on the dates such officers reach the United States, and as terminating on the respective dates of their departure from the United States in returning to their commands. (Act Mar. 2, 1901, 31 Stat., 902.) "Leaves to be absent from the Philippine Islands, other than to return to the United States, which may be granted officers of the Army serving in said islands and sailing from Manila, shall be regarded as taking effect on the date such officers reach Manila, and as terminating on the dates of their departure from Manila, in retm-ning to their stations." (Act Mar. 2, 1907, 34 Stat., 1171.) "Officers appointed to the Regular Army from the volunteer service, whose service has been continuous, shall, in the computation of leaves of absence after their appointment in the Regular Army, be entitled to the leave credits which accrued to them as volunteer officers where such leave credits were not availed of during their volunteer service." (Act June 30, 1902, 32 Stat., 508.) Absence resulting fi"om misconduct: See laws noted above, under "Laws relating specifi- cally to Marine Corps." Temporary increases in pay of officers. — By act of May 18, 1920 (41 Stat., 601-605), the pay of officers of the Army and Marine Corps was in- creased, as set forth below, commencing Jan- uary 1, 1920, and remaining effective until June 30, 1922; such annual increases being "in addition to all pay and allowances now allowed by law:" Colonels in the Army and Marine Corps, $600; lieutenant colonels in the Army and Marine Corps, $600; majors in the Army and Marine Corps, .|840; captains in the Army and Marine Corps, $720; first lieutenants in the 941 Sec. 1612. PL 2. REVISED STATUTES. The Navy. Army and Marine Corps, $600; second lieuten- ant.s in the Army and Marine Corps, $420. /*(((/ o/inlisttd vun. — CJeneral rates of pay for enlisted men of the Army were prescribed by act of May 11, 1908 (35 Stat., 109). Increases in the pay of enlisted men were made by act of May IS, 1017. section 10 (40 Stat., 82), to con- tinue '' until the termination of the emersjency." The.se increa.^es were '"continued in force and effect from and after the date and approval of this Act," bv act approved July 11, 1919 (41 Stat., 110). J5y act of May 18, 1920 (41 Stat., 601-605), it was pro\ided that, "commencing January 1, 1920, the pay of all enlisted men of the Army and Marine Corps and of members of the female Nurse Corps of the Army and Navy is hereby increased 20 per centum: Provided, That sucn increase shall not apjily to enlisted men whose initial pay, if it has already been permanently increased since April 6, 1917, is now less than $33 per month." Such increases were to re- main effective until June 30, 1922, unless sooner amended or repealed, but were to "be the rates of pay during the current enlistment of all men in active serWce on the date of the approval of this Act, and for those who en- list, reenlist, or extend their enlistments prior to July 1 , 1922, for the term of such enlistment, reenlistment, or extended enlistment." By act of June 4, 1920, section 4 (41 Stat., 761), new rates of base pay were prescribed for enlisted men, as set fortn below, and it was provided that the temporary increase of pay for enlisted men of the Army authorized by act of May 18, 1920, above quoted, "shall be com- puted upon the base pay pro%ided for in this section, and shall apply only to enlisted men of the first five grades," and it was further pro- ^dded ' ' that nothing in this section shall operate to reduce the pay which any enlisted man is now recei\'ing, during his cuiTent enlistment and while he holds his present grade, nor to change the present rate of pay of any enlisted men now on the retired list." "On and after July 1, 1920, the grades of en- listed men shall be such as the President may from time to time direct, with monthly base pay at the rate of $74 for the first grade, $53 for the second grade, $45 for the third grade, §45 for the fourth grade, $37 for the fifth grade, $35 for the sixth grade, and $30 for the seventh grade. Of the total authorized number of en- listed men, those in the first grade shall not exceed 0.6 per centum, those in the second grade 1.8 per centum, those in the third grade 2 per centum, those in the fourth grade 9.5 per centum, those in the fifth grade 9.5 per centum, those in the sixth grade 25 per centiim." (Act June 4, 1920, sec. 4, 41 Stat., 761, amending act of June 3, 1916, sec. 4, 39 Stat., 167.) See note abo^■e, under "Short term enlistments," for law authorizing Secretary of the Navy to estab- lish grades and ratings in Marine Corps. Longevity paj/ of enlisted men. — "Existing laws pro\iding for continuous service pay are repealed to take effect July 1, 1920, and there- after enlisted men shall receive an increase of 10 per centum of their base pay for each five years of service in the Army, or ser\-ice which by existing law is held to be the equivalent of Army service, such increase not to exceed 40 per centum." (Act June 4, 1920, sec. 4, 41 Stat., 761, amending act of June 3, 1916, sec. 4 39 Stat., 167.) Enlistment and reenlistment allowance. — "Ex- isting laws pro^•iding for the payment of three months' jtay to certain soldiers upon reenlist- ment are hereby repealed, and hereafter an enlistment allowance equal to three times the monthly pay of a soldier of the seventh grade shall be ])aid to every eoldier who enlists or re- enlists for a period of three years, payment of the enlistment allowance for original enlistment to be deferred until honorable discharge." (Act Jime 4, 1920, sec. 27, 41 Stat., 775, amend- ing act of June 3, 1916, sec. 27, 39 Stat., 185. See 27 Comp. Dec, 10], noted below, as to re- peal in part of sec. 1612.) Specialist ratings. — "Under such regulations as the Secretary of War may prescribe, enlisted men of the sixth and seventh grades may be rated as specialists, and receive extra pay there- for per month, as follows: First class, $25; second class, $20; third class, $15; fourth class, $12; fifth class, $8; sixth class, $3. Of the total authorized nxmiber of enlisted men in the sixth and seventh grades, those rated as special- istfl of the first class shall not exceed 0.7 per centum; of the second class, 1.4 per centum; of the third class, 1.9 per centum; of the fourth class, 4.7 per centum; of the fifth class, 5 per centum; of the sixth class, 15.2 per centum." (Act June 4, 1920, sec. 4, 41 Stat., 761, amend- ing act Jime 3, 1916, sec. 4, 39 Stat., 167.) Extra duty pay.— "All laws and parts of laws providing for extra duty pay for enlisted men are repealed, to take effect July 1, 1920." (Act Jime 4, 1920, sec. 4, 41 Stat., 761, amend- ing'act Jime 3, 1916, sec. 4, 39 Stat., 167.) Enlistment bounty. — "No bounty shall be paid to induce any person to enlist in the military ser\-ice of the United States." (Act May 18, 1917, sec. 3, 40 Stat., 78. See above, as to "Enlistment allowance." Additional pay for marksmen, etc. — "That hereafter enlisted men now qualified or here- after quaUfying as marksmen shall receive $2 per month? as sharpshooters, $3 per month; as expert riflemen, $5 per month; as second-class gunners, $2 per month; as first-class gimners, $3 per month; as expert first-class gunners, Field Artillery, $5 per month; as gun pointers, gun commanders, observ^ers second class, chief planters, and chief loaders, $7 per month; as plotters, observers first class, casemate elec- tricians, and coxswains, $9 per month, all in addition to their pay, under such regulations as the Secretary of War may prescribe, but no man shall receive at the same time additional pay for more than one of the classifications named in this section." (Act May 11, 1908, 35 Stat., 110, as amended and reenacted by act May 12, 1917, 40 Stat., 45. See decisions of the Comptroller of the Treasury, noted below, as to additional pay for s]>ecial quaUficatious, de- tails, etc., in the ]\Iarine Corps.) "Mess sergeants shall receive six dollars per month in addition to their pay." (Act May 11, 1908, 35 Stat., 109.) Quarters and commutation thereof. — "That at all posts and stations where there are pubUc quarters belonging to the United States officers may be furnished with quarters in kind in such 942 The Navy. Ft. 2. REVISED STATUTES. Sec. 1612. public quarters, and not elsewhere, by the Quartermaster's Department, assigning to the officers of each grade, respectively, such num- ber of rooms as is stated in the following table, namely: Second lieutenants, two rooms; first lieutenants, three rooms; captains, four rooms; majors, five rooms; lieutenant-colonels, six rooms; colonels, seven rooms; brigadier- generals, eight rooms; major-generals, nine rooms; lieutenant-general, ten rooms: Provuled further, That at places where there are no public quarters commutation therefor may be paid by the Pay Department to the officer entitled to the same at a rate not exceed twelve dollars per month per room." (Act June 17, 1878, Sec. 9, 20 Stat., 151, as amended and reenacted by act Mar. 2, 1907, 34 Stat., 1168, 1169.) "That hereafter, at places where there are no public quarters available, commutation for the authorized allowance therefor shall be paid to commissioned officers, acting dental surgeons, veterinarians, members of the Nurse Corps, and pay clerks at the rate of $12 per room per month; and, when specifically authorized by the Secre- tary of War, to enlisted men at the rate of $15 per month, or in lieu thereof he may, in his discretion, rent quarters for the use of said enlisted men when so on duty." (Act Mar. 4, 1915, 38 Stat., 1069.) "Officers temporarily absent on duty in the field shall not lose their right to quarters or commutation thereof at their permanent station while so temporarily absent." (Act Feb. 27, 1893, 27 Stat., 480. As to quarters for depend- ents, see laws noted above, under ' ' Laws relating specifically to Marine Corps.") Heat and light.— "The heat and light actually necessary for the authorized allowance of quar- ters for officers and enlisted men shall be fur- nished at the expense of the United States under such regulations as the Secretary of War may prescribe." (Act Mar. 2, 1907, 34 Stat., 1167.) By annual appropriation for the Marine Corps, under "Maintenance, Quartermaster's Department," provision is made "for heat, light, and commutation thereof for the author- ized allowance of quarters for officers and en- listed men." (Act June 4, 1920, 41 Stat., 831.) Sale of fuel to o^c^-rs.— "Hereafter fuel may be furnished to commissioned officers on the active list by the Quartermaster's Department, for the actual use of such officers only, at the rate of three dollars per cord for standard oak wood, or at an equivalent rate for other kinds of fuel, the amount so furnished to each to be limited to the officer's actual personal necessi- ties as certified to by him." (Act June 12, 1906, 34 Stat., 250.) Traveling expenses. — "That for all sea travel actual expenses only shall be paid to officers * * * when traveling on duty under compe- tent orders, with or without troops, and the amount so paid shall not include any shore expenses at port of embarkation or debarkation but for the pmpose of determining allowances for all travel under orders, or for officers and enlisted men on discharge, travel in the Philip- pine Archipelago, the Hawaiian Archipelago, the home waters of the United States, and be- tween the United States and Alaska shall not be regarded as sea travel and shall be paid for at the rates established by law for land travel within the boundaries of the United States." (Act June 12, 1906, 34 Stat., 247. As to travel with troops, see note above, under "Laws relat- ing specifically to Marine Corps"; and see deci- sions of Comptroller of the Treasury, noted below.) "That hereafter officers of the Army and Navy detailed for service in connection with the Lighthouse Establishment shall be paid their actual traveling expenses when traveling under orders on official duty to and from points which can not be conveniently reached by ves- sel or railroad." (Act Feb. 26, 1907, sec. 6, 34 Stat., 997.) "That hereafter under such regulations and within such maximum rates as may be pre- scribed by the Secretary of War enlisted men may be reimbursed for actual expenses of travel, including subsistence and lodging, incurred while traveling under competent orders and not embraced in the movement of troops, or they may be paid a fiat per diem therefor in lieu of such reimbursement." (Act Apr. 20, 1918, 40 Stat., 534.) Travel allowance of discharged officers. — "That hereafter when an officer shall be discharged from the service, except by way of punishment for an offense, he shall receive for travel allow- ances from the place of his discharge to the place of his residence at the time of his appoint- ment or to the place of his original muster into the service four cents per mile * * * : Provided further, That for sea travel on discharge actual expenses only shall be paid to officers." (Act Mar. 2, 1901, 31 Stat., 903.) Prior laws repealed by section 1612. — The act of June 30, 1834, section 5 (embodied in section 1612, R. S.), repealed the joint reso- lution of May 25, 1832, respecting the pay and emolimients of the Marine Corps. (U. S. v. Freeman, 3 How., 556.) It was provided by section one of the act of August 5, 1854 (now embodied in section 1612, R. S.), "that the noncommissioned officers, musicians, and privates of the U. S. Marine Corps shall be entitled to and receive the same pay and bounty for reenlisting as are now or may hereafter be allowed to the noncommis- sioned officers, musicians, and privates in the Infantry of the Army." It would seem that this provision was intended to supersede all laws then in force relating to the pay of en- listed men of the Marine Corps, and to repeal, among other provisions, that portion of the act of March 2, 1837, as amended, which gave marines one-fourth additional pay for serving beyond their enlistments. But the former practice of allowing marines this increase was continued as though the law did not apply to cases of that kind. This long-continued con- struction of the law should not be overturned. (5 Comp. Dec, 524; see sec. 1422, R. S., and note thereto.) Section 1612 repealed as to bounty for reenlisting.— So much of section 1612, Re- vised Statutes, as provides that enlisted men of the Marine Corps shall be entitled to receive the same bounty for reenlisting, usually desig- nated as honorable discharge gratuity, as en- listed men of like grades in the Infantry of the 943 Sec. 1612. Ft. 2. REVISED STATUTES. The Navy. Army, is repealed and superseded by section 7 of the act of June 4, J!»20 (U ytat., '6m), under the provisions of which cnListed men of the Marine Corps reenlisting on or after June 4, 1920, for four years, three years, or two years, are entitled to receive four months, three months, or two months' extra pay, resiiectively, at the rate of pay they were receivinj^ at the time of honoi-able discharge. (27 C'omp. Dec, 101 ; see Army law noted above, under "Enlist- ment and reenlistment allowance," and Marine Corps law noted above under "Bounty for reenlisting." See also sec. 1573, R. S., and note thereto.) Section 1612 not repealed as to pay. — So much of section 1612 as provides that en- listed men of the Marine Corps shall be entitled to recei\e the same pay as enlisted men of like grades in the Infantry of the Army is still in full force and effect. The pay of enlisted men of the Marine Corps is accordingly that prescribed for the corresponding grades of the Army by the act of June 4, 1920 (41 Stat., 761), plus the 20 per cent increase temporarily authorized by act of May 18, 1920 (41 Stat., 601), plus longevity increase allowed by the Army act of June 4, 1920 (41 Stat., 761), and additional pay for specialists as prescribed in that act. (27 Comp. Dec, 101; see also, 27 Comp. Dec, 170.) General effect of section 1612. — The pay of the Marine Corps is regulated by the laws which govern the pay of the Army, and as changes are made in the Army pay those changes take effect simultaneously in the pay roll of the Marine Corps. This is the legal e ffect of section 1612. (Reid v. U. S., 18 Ct. Cls., 625.) Section 1612 was intended to operate upon future as well as existing legislation on pay, allowances, and bounty in the Ajmy. (19 Op. Atty. Gen., 616, 622.) Limitations upon operation of section 1612. — The pay of the Marine Corps is regu- lated by the law which governs the Army pay, and this is accomplished automatically by the Revised Statutes (sec. 1612). But this does not extend to a case where Congress has made a specific provision for the pay of an officer or grade of officers or enlisted men in the Marine Corps. (Bristow v. U. S., 47 Ct. Cls., 46.) Where the pay of a new grade of officers is specifically prescribed by statute, the general prox-ision of law that the pay of the Marine Corps shall be the same as the pay of the Army can not be construed so that the specific pay shall be either increased or diminished by reason of a change of Anny pay. (Bristow v. U. S., 47 Ct. Cls., 46.) The fact that section 1612 provides that enlisted men of the Marine Corps shall receive the same pay, grade for grade, as enlisted men of the Army, does not add grades to the Marine Corps to correspond to additional grades added to the Army, especially where the law has made specific provision for the different grades in the Marine Corps and the numl^er of men to be assigned to each. The law adding to the Armv a grade of enlisted men unknown to the Marine Corps does not make a similar grade in the Marine Corps. (8 Comp. Dec, 419.) The Army appropriation act of April 27, 1914 (38 Stat., 353), provided, first, that no officer or enlisted man absent from duty on account of disease resulting from Ms o^v^l intemperate use of drugs or alcoholic liquors or other misconduct shall receive pay for such period of absence; and second, that an enlist- ment shall not be regarded as complete until the soldier shall ha\e made good any time in excess of one day lost by unauthorized absences. Held, that the first provision is one affecting the pay to be received by officers and enlisted men in the Army, and therefore is made applicable to the Marine Corps by section 1612, Revised Statutes; but that the second pro- vision is one affecting the term of enlistment in the Ai-my, and does not apply to the Marine Corps, as the term of enlistment in the Marine Corps is governed by the laws and regulations of the Navy under section 1621, Revised Statutes. (Comp. Dec, June 3, 1914, 160 S. and A. Memo., 3250. See later law, above quoted,relatingspecifically to the Marine Corps.) Enlisted men of the Marine Corps are not entitled to the bounty provided by act of July 29, 1861, section 5 (12 Stat., 280), for the men "enlisted in the regular forces." (11 Op. Atty. Gen., 100, Sept. 29, 1864.) The act of June 16, 1890, entitled "An Act to prevent desertions from the Army, and for other purposes," provided in section one that there shall be retained from the pay of each enlisted man of the Army the sum of $4 per month for the fh'st year of his enlistment, which shall not be paid to him until his dis- charge from the service and shall be forfeited unless he served honestly and faithfully to the date of his discharge ; and that sums so retained shall be treated as deposits upon which interest shall be paid. This section of the act was applicable to the Marine Corps by force and effect of section 1612, Revised Statutes. Section 2 of the same act related to the terms of enlistment in the Anny, and provided that soldiers discharged prior to expiration of en- listment shall not be entitled to the allowances provided in section 1290, Revised Statutes. This section held not applicable to the Marine Corps [although sec. 1290, Revised Statutes, relating to transportation on discharge, did apply to the Marine Corps]. Section 3 of said act, relating to the arrest of deserters by civil ofticers, and section 4, authorizing the President to permit enlisted men to purchase their discharge in time of peace, also held inapplic- able to the Marine Corps. (19 Op. Atty. Gen. ,616.) Sections 1305-1308, Revised Statutes, which provide for the deposit with any Anny pay- master by any enlisted man of the Army of his savings, have no application to the Marine Corps, and the enlisted men of that corps have not the right or privilege of making such de- posits with a paymaster of their branch of the service. Special legislation referring only to the Army, like these sections of the Revised Statutes, would not ordinarily be construed to apply to the Marine Corps any more than to the Nav^. (25 Op. Atty. Gen., 190. See later law above noted relating to the Marine Corps.) Section 1216, Revised Statutes, as amended (act Mar. 29, 1892, 27 Stat., 12), which em- powers the President to grant a certificate of merit to an enlisted man of the Army who has distinguished himself in the service and has 944 The Navy. PL 2. REVISED STATUTES. Sec. 1612. been recommended therefor by the command- ing officer of the regiment or the cliief of the corps to which such man belongs, applies only to enlisted men of the Army, and not to mem- bers of the Marine Corps who have been simi- larly commended. Section 1612 is not applica- ble to the special reward for gallant ser^ice, so as to bring the Marine Corps ^^ithin section 1216. There is a corresponding pro\ision in section 1407, Revised Statutes, which was expressly amended to include enlisted men of the Marine Corps. (24 Op. Atty. Gen., 579. See note to sec. 1407, R. S.} Navy laws held appUcable to Marine Corps. — Officera and enlisted men of the Marine Corps are not entitled to reimburse- ment for loss of personal effects in accordance with laws relating to the Army; but are entitled to such reimbursement under the same circum- stances as if thev were in the Navy proper. (3 Comp. Dec, 659; Harllee v. U. S., 5l"Ct. Cls., 342; compare 4 Comp. Dec, 26. See note to sec. 290, R. S., and see act of Oct. 6, 1917, 40 Stat., 389.) Section 1563, Re^^sed Statutes, authorizing advances of pay to persons in the naval ser\T.ce, has been invariably construed by the account- ing officers as applj-ing to Marine officers. (Reid V. U. S., 18 Ct. Cls., 625.) Navy laws held inapplicable to Marine Corps. — -Officers of the Marine Corps have not been considered as "appointed to the Navy," within the meaning of the constructive ser\dce pro\ision in the Na^^ personnel act of March 3, 1899, section 13 (30 Stat., 1007\ pro\'iding that "all officers, including warrant officers, who have been or may be appointed to the Navy from civil life shall, on the date of appoint- ment, be credited, for computing their pay, with five years' service." (23 Comp. Dec, 508.) An officer of the Marine Corps attached to a seagoing vessel is not entitled to the ration allowed by Revised Statutes, section 1578, to a naval officer so attached. Such officer of the Marine Corps is by the Re\'ised Statutes (section 1612), subjected to the pro\isions of Re\-ised Statutes, section 1269, which restricts allowances to officers of the Army. Commis- sioned officers of the Army are not allowed rations, although they are allowed to noncom- missioned officers and enlisted men by section 1293. The only advantage which the commis- sioned officer has in this respect is the right to purchase rations for his own use at cost when serving in the field. (R. S. 1145). (Reid v. U. S., 18Ct. Cls., 625.) Section 1578, authorizing rations, is part of chapter 8 of Title XV, Re\'ised Statutes, entitled "Pay, emoluments, and allowances.'' The enactments regulating the pay of officers of the Marine Corps are contained in chapter 9 of the same title. Congress, by placing in another chapter the enactments relating to pay of the Marine Corps, indirectly but uiunis- takably indicated its intent to confine allow- ances made by chapter 8 to the naval officers whose pay is fixed by the provisions of that chapter, xdz, those enumerated in section 1556, Re\ised Statutes. While section 1563, authorizing advances to persons in the naval Ber\'ice employed on distant stations, is part of chapter 8, and has nevertheless been con- strued as applj-ing to Marine officers, the language of that section, which does not speak of "officers" but of "persons employed in the naval service," is different fi-om that in section 1578, and it would appear that Congress in- tended to give the marines the benefit of the legislation in section 1563. (Reid v. U. S., 18 Ct. Cls., 625.) The act of Februaiy 9, 1889 (25 Stat., 657), to pro\'ide for the deposit of sa\ing8 by "seamen of the United States Na\^," does not extend to enlisted men of the Marine Corps. (19 Op. Atty. Gen., 616. See note to sec. 1621, R. S.; and see later law noted above, relating to deposits by enlisted men of the Marine Corps. ) Pay grades, enhsted men. — See Army law of June 4, 1920, quoted above under "Pay of enlisted men." By Marine Corps orders No. 18, June 25, 1920, the enlisted grades of the Marine Corps are gi'ouped as follows: First grade, sergeants major and quartermaster sergeants; second grade, first sergeants, gunnery sergeants, drum major; third grade, none; fourth gi'ade, ser- geants; fifth grade, corporals; sixth grade, privates first class; seventh grade, driunmers, trumpetere, and privates. (27 Comp. Dec. , 101.) The following table shows the rates of pay of the above mentioned grades as fixed bv the Army act of June 4, 1920 (41 Stat., 761),' plus the 20 per cent increase temporarily authorized by act of May 18, 1920 (41 Stat., 761), and additional pay for specialists as prescribed in that act, as published by the Comptroller of the Treasury (27 Comp. Dec, 35 and 101; see Army laws quoted above): Grado. Base pay. Add 20 per cent increase as of first 5 grades. Less than five years' service. After five years' sen-ice. After ten years' service. After fifteen years' service. After twenty years' service. 1st $74. 00 53.00 45.00 45.00 37.00 35.00 30.00 $14. 80 10.60 9.00 9.00 7.40 e) $88. 80 63.60 54.00 54.00 44.40 35. 00 30.00 $96. 20 68.90 58. 50 58. 50 48.10 38. 50 33.00 $103. 60 74.20 63.00 63.00 51.80 42.00 36.00 $111. 00 79.50 67.50 67.50 55.50 45.50 39.00 1 $118. 40 2d 1 84. 80 3d 1 72. 00 4th 72.00 5th 59. 20 6th 49.00 7th 42.00 I The enlisted men of the first, second, and ttiird grades are entitled to the additional ration and the transportation pri\'ileges under sections 5 and 12 of the act of May 18, 1920. ' Enlisted men of sixth and seventh grades may be rated as specialists and receive extra pay therefor per month, as follows: First class, $25; second class, $20; third class, $15; fourth class, $12; fifth class, $8; sixth class, $3. 945 Sec. 1612. Pt. 2. REVISED STATUTES. The Navy. Pay not reduced by act June 4, 1920. — The effect of the saving clause in section 4 of the Army reorganization act of June 4, 1920 (41 Stat., 7()2i, that "nothing in this section shall operate to reduce the pay which any enlisted man is now receiving during his cur- rent enlistment and while he holds his present grade, " is to grant to enlisted men of the Army and Marine Corps the right to continue to receive the higher rates of pay they were receiving on June 4, 1920, under earlier laws then in force, until the termination or exten- sion of the enlistment in which serving on that date, if they continue in the same grade during such period, but not during service under an extended enlistment which may be extended on or after June 4, 1920, nor after a change in grade. (27 Comp. Dec, 31.) Additional pay as specialists. — ^The pro- vision of section 4 of the Army reorganization act of June 4, 1920 (41 Stat., 761), that enlisted men of the Army of the sixth and seventh grades may be rated as specialists and receive extra pay therefor at certain specified rates per month, is applicable to the Marine Corps in 80 far as the Secretary of War may apply said provisions of law to the infantry of the Army. (27 Comp. Dec, 31.) Extra-duty pay.— On and after July 1 , 1920, the payment of any extra-duty pay to enlisted men of the Army and Marine Corps is prohibited notwithstanding provisions in Army and Navy appropriation acts authorizing such payments, section 4 of the Army reorganization act of June 4, 1920 (41 St5,t., 761), having repealed from July 1, 1920, all laws or parts of laws pro- viding for extra-duty pay. (27 Comp. Dec, 31.) The term ' ' extra-duty " is obviously a relative one, and it can not be determined that an enlisted man was performing extra duty with- out a complete understanding of the scope of the duties which he might properly be expected to perform in accordance with hiis enlistment without recei^ang extra pay. A member of the hospital corps was as such bound to per- foi-m, %vithout extra pay, any of the duties which pertain to that service. Duties incident to the conduct of hospitals as efficient insti- tutions, including maintenance of telephone and telegraph offices, when necessary in the judgment of the military authorities, were part of the current duties of enlisted men of the hospital corps and did not entitle them to extra pay any more than any other necessary activ- ities which the successful administration of the hospital might demand. (U. S. v. Ross, 239 U. S., 530.) From an early date provision has lieen made for the pajTnent of enlisted men on extra duty at "constant labor of not less than ten days." It may be assumed that section 1235 of the Re\'ised Statutes, requiring written orders, was not intended to preclude a recovery of extra-duty pay where there had been a detail to extra duty by competent authority, although not in writing, and extra duty entitling the enlisted man to extra pay under the statute had actually been performed. However, where an enlisted man was not in fact assigned on extra duty, there being no such detail in accordance with regulations or the statute as there should have been if he was considered to be on extra duty, and where it was the judg- ment of the War Department that the man was not on extra duly, this Departmental judgment will not ])e overruled unless there is a clear abuse of the necessarv official discretion. (U. S. V. Ross, 239 U. S., 5,30. ) It is well settled that the mere designation of duty as "special duty" can not of itself determine the character of the duty and deprive the man of his rights to compensation therefor if in fact the duty was ' 'extra duty . ' ' Whether it was special duty or extra duty is to be de- termined from the facts themselves. (Scheid r. U. S., 52 Ct. Cls., 247.) The re(}uireraent of the statutes that details for extra duty must be in writing was not intended to preclude a recovery of extra-duty pay to which a man might be entitled under the law where it appeared that he had been detailed to such extra duty by competent authority, and that the extra duty had been actually per- formed. A provision in the Marine Corps "vSystem of Accountability" could not in any manner serve to abridge a right which a man might have under the law. (Scheid v. U. 8., 52 Ct. Cls., 247.) The appropriation in the Army act of March 3 1885 (23 Stat., 359), for enlisted men on extra duty, was limited in its provisions to the Quartermaster Corps, but the other language in the same section, amendatory of section 1287, Revised Statutes, had no relation to the Quartermaster Corps but was permanent legis- lation applicable to the rest of the service as well as to that corps. (Scheid v. U. S., 52 Ct. Cls., 247.) A serrreant in the Marine Corps performed the duty of schoolmaster at the Marine Barracks for 15 years; he received, in addition to his pay as sergeant, one dollar per month from each apprentice in accordance ^vith an agreement in their enlistment papers prescribed by the Navy Department. Held, that he was not entitled to extra-duty pay from the Govern- ment. Section 1287, Revised Statutes, pro- viding extra-duty pay for the Army, and Army Regulations issued under authority of the ap- propriations for extra-duty, do not extend to one who performs the duties of a schoolmaster and who receives extra pay from his pupils. fFugitt V. U. S., 28 Ct. Cls., 253.) Longevity pay, enlisted men. — Section 4 of the Armv reorganization act of June 4, 1920 (41 Stat., 761), repeals, from July ], 1920, all preceding legislation providing for continuous- ser\'ice pay in the Army and Marine Corps, except in so far as the saving clause in said section may prevent the reduction of the pay of enlisted men, continuous-service pay being '•pay" within the term as used in the saving clause. (27 Comp. Dec, 31.) In computing the longevity pay of an enlisted man now in the Marine Corps, or of any person who hereafter enlists or reenlists in the corps, under the act of June 4, ]920 (41 Stat., 761), all prior service on the active list in the Army, Navy, and Marine Corps, whether in con- secutiv^e or dissevered periods, shall be counted. (27 Comp. Dec, 170.) The act of June 4, 1920 (41 Stat., 761\ re- pealing all laws providing for continuous-service 946 The Navy. PL 2. REVISED STATUTES. Sec. 1612. pay, substituted in lieu thereof longevity pay. (27 Comp. Dec, 170.) Under the Army reorganization act of June 4, 1920 (41 Stat., 761), the service which by existing law is held to be the equivalent of Army service in counting length of service for increase of pay or for retirment is service in the Marine Corps and service in the Navv. (27 Comp. Dec, 170, citing acts Feb. 24, 1881, 21 Stat., 346; Sept. 30, 1890, 26 Stat., 504; and June 22, 1906, and Mar. 2, 1907, 34 Stat., 451 and 1217.) The provisions of sections 1281 and 1282, Revised Statutes, relating to increased pay for length of service and retention of pay until expirations of enlistment, form part of the legis- lation regulating the pay of enlisted men in the Army and are applicable to the Marine Corps by force of section 1612. (19 Op. Atty. Gen., 616, 623.) Reenlistment pay; honorable discharge gratuity.— So much of section 1612 as provided that euhsted men of the Marine Corps shall be entitled to receive the same bounty for reen- listing, usually designated as honorable dis- charge gratuity, as enlisted men of like grades in the infantry of the Army was repealed and superseded by section 7 of the act of June 4, 1920 (41 Stat., 836). (27 Comp. Dec, 101; see laws quoted above relating to Marine Corps.) The provision of section 27 of the Army re- organization act of June 4, 1920 (41 Stat., 775), that an enlistment allowance equal to three times the monthly pay of a soldier of tJie seventh grade shall be paid to every soldier who reenlists for a period of three years has no application to the Marine Corps, but the reen- listment pay, otherwise known as honorable discharge gratuity, of members of the Marine Corps, depends entirely upon laws providing therefor in effect prior to June 4, 1920, and the provisions of section 7 of the naval appropria- tion act of June 4, 1920 (41 Stat., 836). (27 Comp. Dec, 31.) Under the provisions of the naval appropria- tion act of June 4, 1920, section 7, enlisted men of the Marine Corps reenlisting on or after June 4, 1920, for four years, three years, or two years are entitled to receive four months, three months, or two months extra pay, respectively, at the rate of pay they were receiving at .the time of honorable discharge. (27 Comp. Dec, 101; see sec. 1573, R. S., and note thereto.) An enlistment in the Marine Corps after an honorable discharge from the Army or Navy is not a "reenlistment" ^vithin the meaning of section 7 of the act of June 4, 1920 (41 Stat., 836); the term "reenlistment" signifies an en- try into the same branch of the service from which honorably discharged. (27 Comp. Dec, 170.) An enlistment in the Marine Corps after an honorable discharge from the Army is a "re- enlistment " within the meaning of section 1284, Revised Statutes, pro\T.ding longevity pay in the Army, made applicable to the Marine Corps by section 1612, Revised Statutes. Such enlisted man is entitled to the same ben- efits that he would be entitled to if his reenlist- ment had been in the Army. (Walton v. U. S., 31 Ct. Cls., 196.) Bounties on reenlistment in the Marine Corps were, by virtue of section 1612 of the Re- vised Statutes, based upon the law governing bounties to the enlisted men of the Army con- tained in the Army appropriation act of May 11, 1908 (35 Stat., 110). (21 Comp. Dec, 848.) The bounty payable to enlisted men of the Marine Corps upon reenlistment should be computed on all items of pay, as distinguished from allowance, which they may be receiving at the time of discharge. (21 Comp. Dec, 848.) Additional pay for special qualifica- tions, details, etc. — There is no law that provides for cooks in the Marine Corps or for an increase of pay for extra duty of privates of that corps detailed in service as cooks. (8 Comp. Dec, 419.) Enlisted men of the Marine Corps regularly detailed as messmen, whether for duty afloat or ashore, may be paid such additional com- pensation as provided for by regulations ap- proved and promulgated by the Secretary of the Navy; Congress having appropriated for such additional compensation under the cap- tion, "Pay, Marine Corps," but not having fixed the amount. These appropriations do not create the grade of messman in the Marine Corps, but do pro\dde for additional pay to men regularly detailed to perform the duties of messmen. If additional pay were provided for like service in the Army, to which it would be assimilated, 'the additional pay would be fixed by law and would govern without regard to the President's order; but there is no grade in the Army to which the additional compen- sation of an enlisted man in the Marine Corps regularly detailed to perform the duties of mess- man can be assimilated . (13 Comp. Dec, 13C.) Under annual appropriation acts, and Exec- utive Order of September 18, 1906, relating to additional pay for enlisted men of the Marine Corps regularly detailed as messmen, held that where a man is properly detailed as messman for a month or more, as prescribed by said order, he is entitled to the additional pay even though, by reason of illness or other cause, he is lawfully absent from duty for a part of the month. (13 Comp. Dec, 574:) Enlisted men of the Marine Corps who have qualified as expert riflemen are entitled to the additional monthly pay allowed enlisted men of the infantry of the Army, which extra pay shall cease at the close of the first subsequent target year in which such riflemen shall fail to qualify. (Comp. Dec, Sept. 26, 1905, 55 S. and A. Memo., 7; modifying 11 Comp. Dec, 788.) The act of May 11, 1908 (35 Stat., 110), pro- viding "that hereafter enlisted men now quali- fied or hereafter qualifying as marksmen shall receive two dollars per month; as sharpshoot- ers, three dollars per month; as expert riflemen, live dollars per month; * * * all in addi- tion to their pay, under such regulations as the Secretary of War may prescribe," was made applicable to the Marine Corps bv section 1612, Revised Statutes. (21 Comp. Dec, 123 and 848.) The extra pay provided for gun pointers and gim captains is extra pay for special service. 947 Sec. 1612. Pt. 2. REVISED STATUTES. The Navy. and pa\able only when under detail for the specialk-rvice. (21 Comp. Dec, 811, 814.) The enlisted men of the Marine Corps derive their right to additional coni])ensation or allow- ante as messnien, sjun captains, and »un point- ers from the annual ai)propriation arts and the regulations made in pureuance thereof. (21 ("omp. i)ec., 811, 812; citing 13 Comp. Dec, 136.) Under the Navy Regulations of 1913, article 4442 ( 1 1 ), "all enlisted men of the United States Marine Corps regularly detailed as gun pointers. Navy mail clerks, gun captains, messmen, or signalmen, or holding good conduct medals, pins, or bars, shall receive the same extra com- pensation in addition to their monthly pay as is now or may hereafter be allowed enlisted men of the Navy." (See 21 Comp. Dec, 812.) Retained pay. — Section 1281, KoAised Stat- utes, and amendments thereto, authorizing cer- tain increases in the pay of enlisted men during their first enlistment in the Army, such in- creased pay to be " considered as retained pay " and not to be paid until discharge, were held applicable to the Marine Corps. (See 19 Op. Attv. Gen., 616, 623; U. S. v. Kingsley, 138 U. S., 87, 24 Ct. Cls., 219.) Said section of the Re\'ised Statutes was expressly repealed by act of May 11, 1908 (35 Stat., 110.) By act of Jime 4, 1920, section 27, relating to the Army (quoted above imder "Enlistment and reenhstment allowance"), provision was made for an allowance to soldiers dinging their first enlistment, pajTnent thereof "to be de- ferred until honorable discharge." (See deci- sions noted above under " Reenhstment pay; honorable discharge gi-atuity.") Increased pay for sea duty and foreign shore service. — In computing the 20 per cent additional pay for foreign sei-vice of enlisted men of the Marine Corps, the additional monthly pay allowed as expert riflemen should be included. (Comp. Dec, Sept, 26, 1905, 55 S. and A. Memo., 67.) Enlisted men of the Marine Corps are not entitled to have the additional compensation authorized for marksmanship qualifications included in their pay proper upon which is com- puted the 20 per cent increase for sea duty; but are entitled to have such increase computed on pay for good conduct medals. (21 Comp. Dec, 848.J Enlisted men of the Marine Corps on sea duty are not entitled to have the additional compen- sation of gun pointers and gun captains included in their "pay proper" upon which is computed the 20 per cent increase of pay for foreign shore duty. (21 Comp. Dec, 811.) Officers of the Marine Corps are not entitled to ha\e the additional compensation as aid, or the allowance for mounts, included in their pay proper upon which is computed the ten per cent increase for sea duty. (21 Comp. Dec, 848.) An officer of the IVIarine Corps was entitled, under section 1612, Re\'ised Statutes, and the act of May 11, 1908, to the increased pay for 8er\dce bejond seas allowed by the act of June 30, 1902, for service in Porto Rico, notwith- standing the provisions in the appropriation acts of 1906 and 1907, excepting Hawaii and Porto Rico from the operation of the said act of 1902. Those exceptions were temporary, and did not have a general and permanent applica- tion to all future appropriations. The Ann y act of May 11, 1908, having provided that "increase of pay for service beyond the limits of the states comprising the Union and the territories of the United States contiguous thereto shall be as now provided by law," the law contained in the act of 1902, and not the exception con- tained in the appropriations of 1906 and 1907, was thereby continued in effect. (U. S. v. Vulte, 233 tJ. S., 509; but see later act of Aug. 24, 1912, quoted above under Army laws re- lating to foreign shore ser\-ice.) Pay and allowances defined.— See cases noted above, under "Increased pay for sea duty and foreign shore ser\dce"; see also notes to sections 1558 and 1615, Revised Statutes. WTiether extra pay for special assignments (gun pointers and gun captains) is an "allow- ance" or "in the nature of an allowance," or "pay" in the broad meaning of that term, it is not "pay proper " within the meaning of the act of June 30, 1902 (32 Stat., 512), relating to foreign shore service pay. (21 Comp. Dec, 811.) Mileage has been held both by the courts and the accounting officers to be an allowance. (13 Comp. Dec, 333.) Extra duty pay is not "pay" within the meaning of the saving clause contained in the act of June 4, 1920, section 4 (41 Stat., 761), that "nothing in this section shall operate to reduce the pay which any enlisted man is now receiving" etc. (27 Comp. Dec, 31, 36. Compare 27 Comp. Dec, 31, holding that act of June 4, 1920, sec. 4, 41 Stat., 761, repealing Army laws as to extra duty pay, applied to Marine Corps.) Continuous service pay is "pay" within the teiTtt as used in the sa^dng clause of the Army act approved June 4, 1920, section 4 (41 Stat., 761). (27 Comp. Dec, 31.) The Ai-my act of March 3, 1885 (23 Stat., 350), providing for reimbursement of officers and enlisted men of the militaiy ser^nce for private property lost in the service, does not pro\dde an "allowance " to officers of the Army which, by virtue of section 1612, Revised Statues, can be available to officers of the Ma- rine Corps. (Harllee v. U. S., 51 Ct. Cls., 342.) The term "allowances" has acquired an ex- tended meaning, but it has its limitations. It has been held that allowance does not include commutation for fuel and quarters, and is lim- ited to compensation for services other than pay (citing Landers v. U. S., 30 Ct. Cls., 311; Sherburne's Case, 16 Ct. Cls., 491; McLean v. U. S., 226 U. S., 374, 382, 45 Ct. Cls., 95). Pay and allowances as used in the statutes relate to compensation for serAdce. The allowance may at times take the form of reimbursement, but it is reimbursement for something expended in ser\-ice and the amount of allowance is fixed or regulated by statute or regulation which has the effect of a statute. The term can not be applied to the case of a soldier claiming under the act of 1885 for losses sustained for which, under that act, he may recover. The act is one of indemnity; it does not purport to pay for service. (Harllee v. U. S., 51 Ct. Cls., 342.) See note below xmder "Mileage and trans- portation." 948 The Navy. PL 2. REVISED STATUTES. Sec. 1612. Mileage and transportation. — -Officers of the Marine Corps are entitled, under section 1612, Re\'ised Statutes, to the same allowance for sea travel with troops as is provided for offi- cers of the Army by act of June 12, 1906 (34 Stat., 246, 247), and such allowance is payable fi'om appropriations for pay and allowances of officers of the Marine Corps. (13 Comp. Dec, 332.) The act of June 10, 1896 (noted above, under laws relating to the Marine Corps), which pro- vides that officers of the Marine Corps traveling under orders, without troops, shall be allowed the same mileage as was then allowed officers of the Navy traveUng without troops, applies both to travel within the United States and to travel abroad; and an officer of the Marine Corps so traveling is entitled to mileage at the rate of eight cents per mile for travel in the United States, and to actual and reasonable expenses only for travel abroad. (8 Comp. Dec, 123; see note to sec 1566, R. S.) The act of June 10, 1896, is applicable only to officers of the Marine Corps traveling without troops; and officers of the Marine Corps travel- ing with troops are governed by the provisions of section 1612 and the Army act of June 12, 1906 (34 Stat., 246, 247). In other words, an officer of the Marine Corps traveling under or- ders without troops is entitled to the same mileage as was allowed an officer of the Navy on June 10, 1896; but when traveling under orders with troops he is entitled to the same travel allowance as an officer of the Army trav- eling with troops. (Comp. Dec, Mar. 7, 1907, 73 S. and A. Memo., 248; 13 Comp. Dec, 333.) There is no law providing for traveling ex- penses for officers of the Army or Marine Corps traveling with troops within the United States. (Comp. Dec, Mar. 7, 1907, 73 S. and A. Memo., 248.) The expenses necessarily growing out of the transportation and subsistence of the marines detailed for the Navy Department exhibit at the World's Columbian Exposition may be paid from the fund provided for the IMarine Corps and its subsistence. (20 Op. Atty. Gen., 577.) The provisions of section 1290, Revised Statutes, relating to allowance for transporta- tion from the place of discharge to the place of enlistment, form part of the legislation regulat- ing the pay of enlisted men in the AiTQy, and are applicable to the Marine Corps by force of section 1612, Revised Statutes. (19 Op. Atty. Gen., 616, 623.) Revised Statutes, section 1290, as amended by act of Fel>ruary 27, 1877 (19 Stat., 240, 244), provided that "when a soldier is discharged from the service, except by way of punishment for an offense, he shall be allowed transporta- tion and subsistence from the place of his dis- charge to the place of his enlistment, enroU- nent, or original muster into the service. The Grovemment may furnish the same in kind, but in case it shall not do so, he shall be al- lowed travel pay and commutation of subsis- tence, for such time as may be sufficient for him to travel from the place of discharge to the place of his enlistment, enrollment, or original muster into the service, computed at the rate of one day for every twenty miles. " Held, that one who originally enlisted at Washington, and was discharged at Mare Island, California, receiving travel pay and commutation of sub- sistence from Mare Island to Washington, but did not return to Washington, reenlisting at Mare Island as a private; and in the course of his service was returned to Washington, where he was discharged at his own request, was not entitled to his commutation of travel and sub- sistence to the place of his second enlistment, as his service was practically a continuous one, and his second discharge occurred at the place of his original enlistment. (U. S. v. Thornton, 160 U. S., 654.) A private in the Marine Corps, discharged from the service as a person of bad character and unfit for service, by order of the Secretary of the Navy through the commandant of the corps, without court-martial or other competent military proceeding, does not forfeit trans- portation and subsistence from the place of his discharge to the place of his enlistment, enroll- ment, or original muster into the service, under the provisions of section 1290, Revised Statutes, which makes such allowance in all cases other than discharge from the service "by way of punishment for an offense. " That section con- templates a discharge as a punishment, inflicted by the judgment of a coiut- martial or other nulitaiy authority. \Miile unfitness for service and general bad character may justify the proper authorities in ordering the discharge of the soldier as a worthless member of the serv- ice, such a discharge can not be considered as "a punishment for an offense. " The question whether such punishment must necessarily be inflicted by the judgment of a court-martial, not presented by the record in this case and no opinion expressed on it. (U. S. v. Kingsley, 138 U. S., 87; 24 Ct. Cls. 219.) The effect of section 6 of the naval appropria- tion act of June 4, 1920 (41 Stat., 836), is to extend to enlisted or enrolled men of the Navy and Marine Corps, having war service, who, since November 11, 1918, have reenlisted in the Navy or Marine Corps, or who have ex- tended their enlistments either before or after that date, or may hereafter do so, the right to receive the war service payment of $60 pro- vided by the act of February 24, 1919 (40 Stat., 1151), and the travel allowance on discharge, under the act of February 28, 1919 (40 Stat., 1203); such persons having been theretofore excluded from the benefits of said acts. (27 Comp. Dec, 31.) Longevity pay, oflS.cers. — See section 1600, Revised Statutes, and note thereto. The words "cmrent yearly pay," as used in section 1262, Revised Statutes, allowing in- creased pay for periods of five years' service, mean the original salary of the officer's rank plus any additions previously earned for length of service; and the ten per cent increase for periods of five years' service should accord- ingly be computed upon the regular salary of the officer's rank plus previous increases for length of service. (U. S. v. Tyler, 105 U. S., 244.) The act of June 30, 1882 (22 Stat., 118), directing that the longevity increase provided for in section 1262, Revised Statutes, should be "computed on the yearly pay of the gi'ade," 949 Sec. 1612. Pt. 2. REVISED STATUTES. The Navy. was passed for the express purpose of com- uianuiug a method of computation which would render inapplicable the construction adopted by the Supreme Court in the Tyler case (^ above noted ). Accordingly, a subsequent enactment, allo\\'ing ofiicers of the Navy ten per cent increase of their "current yearly pay" for each term of five years' service, should be construed as requiring that such increase be computed on the yearly pay of their grade, in accordance with the rule pre- scribed by the act of 1882, and not upon their base pay plus previous longevity increases, in accordance with the rule laid down in the Tvler case. (Plummer ;;. U, S., 224 U. S., 137, 144.) As to allowance of constructive ser^dce in computing length of service for longevity increases in the Marine Corps, see note above, under ''Na\^ laws held inapplicable to Marine Corps;" and note below, iinder "Pay clerks." Quarters. — Commutation for quarters, fuel, and light not furnished to an officer or enlisted man can not be paid unless authorized by some statute or regulation; that is, the right to commutation does not aiise automatically but must be based upon some specific provision of laM'. /Smith v. U. S., 47 Ct. Cls., 313.) Commissioned officers of the Army on duty where quarters can not be furnished are entitled to commutation by \'irtue of the Army Regu- lations; but there is no such pro\'ision for enlisted men. (Smith v. U. S., 47 Ct. Cls., 313.) In the absence of express appropriation therefor, the hiring of quarters for marines on duty in Washington was forbidden bv act of June 22, 1874 (18 Stat., 144), which provided that "hereafter no contract shall be made for the rent of any building, or part of any building, in Washington, not now in use by the Govern- ment, to be used for the purposes of the Govern- ment until an appropriation therefor shall have been made in terms by Congress." (Smith v. U. S.,47Ct.Cl8.,313.} See note under section 1613, Revised Statutes. Pay clerks. — By virtue of the act of June 24, 1910 (36 Stat., 625), clerks to assistant pay- masters in the Marine Corps are entitled to the same pav and allowances provided by the act of June's, 1916, section 9 (39 Stat., 170), for paj-masters' clerks in the Army; that is, to the pay and allowances of a second lieutenant in the Army. (23 Comp. Dec, 508.) Clerks to assistant paj-masters in the Marine Corps are not entitled to credit for constructive 8er\'ice in computing their pav under the act of June 3, 1916, section 9 (39 Stat., 170), which entitled them to the pay and allowances of a second lieutenant by virtue of the act of June 24, 1910 (36 Stat., 625), givdng them the same pay and allowances as Army pa\nnasters' clerks; although they were previously en- titled to constructive service in computing their pay under the act of March 3,1911 (36 Stat., 1044\ giving them the pay and allowances of warrant officers in the Navy, by virtue of the said act of June 24, 1910. Warrant officers in the Navy appointed from civil life were en- titled to constructive service, but second lieutenants in the Army appointed from ci%'il life were not. (23 Comp. Dec, 508. See note above, under "Navy laws held inapplicable to Marine Corps." i Gunnery sergeants. — ^The grade of "gun- nery sergeant" was first established in the Marine Corps by the Navy personnel act of March 3, 1899, section 23 (30 Stat., 1009) and the pay was specifically fixed by thg same statute at §35 per month, while other sergeants received only $25. Subciuently the pay of sergeants in the Anny was advanced by act of May 11, 1908 (35 Stat., 106, 109), to $45 per month. There was no statute specifically changing the pay of gunneiy sergeants. Held, that gunnery sergeants of the Marine ( 'orps did not become entitled to $45 per month under the Army appropriation act. (Bristow v. U. S., 47 Ct. Cls., 46. But see act of Aug. 22, 1912, as to pay of gunnery sergeants, noted above under laws relating to the Marine Corps, i Forfeiture of pay. — Neither the pay, lodg- ing, nor clothing of enlisted maiines taken by the civil authorities for violation of law can be withheld during their confinement and absence from their military stations. The existing law (act July 11, 1798, sec. 2), authorizes the President to fix the pay and subsistence of the noncommissioned officers, privates, and musi- cians of the Marine Corps. Under this author- ity it would be competent for the President not merely to determine the quantum of pay but to prescribe the conditions on which it shall be received. In the absence of such a regulation by him, or under his authority, recourse must ])e had to the implied contract entered into on the enlistment; this is a stipulation for pajTnent, subsistence, and clothing, in consideration of 8er\'ices to be performed. A willful failure to perform this ser\ace would seem to exempt the Government from the oliligation wliich would have resulted from its performance. But it does not follow that an enlisted marine, because taken by the civil authorities for \'iolation of the laws, has \dolated them; he is presumed to be innocent until proved to be guilty- In cases where conviction takes place and is fol- lowed by a sentence which incapacitates him from the fulfillment of his duty as a marine, from the time of such couAiction his pay might perhaps, properly be withheld; but in such a case it would be better for the Government to discharge the convicted marine from the service and thus terminate his claim for compensation. (2 Op. Atty. Gen., 396. See cases noted under sections 1556 and 1569, Re\ised Statutes.) A private in the ^larine Corps discharged from the service as a person of bad character and unfit for service, by order of the Secretary of the Navy through the commandant of the corps, although without court-martial or other competent military proceeding, forfeits thereby his retained pay "under the provisions of Re- vised Statutes 1281, which provides that such retained pay of an enlisted man "shall be for- feited unless he serves honestly and faithfully to the date of discharge." (U. S. v. Kingsley, 138 U. S, 87; see also note above, under "Mile- age and transportation.") "Pay of two grades. — WTiere a captain in the Marine Corps acts as brevet lieutenant- colonel and is paid as such, he can not during the same period receive either the pay or al- 960 The Navy. PL 2. REVISED STATUTES. Sec. 1613. lowances attached to the duties of captain. (U. S. V. Freeman, 25 Fed. Cas. No. 15,163.) Deposits of savings. — The act of February 9, 1889 (25 Stat., 657), proAading for the deposit of savings by "seamen of the United States Navy," does not extend to enlisted men of the Marine Corps. (19 Op. Atty. Gen., 616.) Sections 1305-1308, Re\dsed Statutes, which provide for the deposit ^rith any Army pay- master by any enUsted man of his savings, have no ai)plication to the Marine Corps, and the en- listed men of that corps have not the right or privilege of making such deposits with a pay- master of their branch of the service. (25 Op. Atty. Gen., 190.) If the act of 1889, for the benefit of enlisted men and petty officers of the Navy, could not properly be construed to apply to the Marine Corps, which is primarily a component part of the Navy, sections 1305-1308 of the Re-vised Statutes,' for the benefit of enlisted men of the Army, can not be so construed. (25 Op. Atty. Gen., 190.) See later law quoted above with respect to deposit of savings by enlisted men of the Marine Corps. Sale of fuel. — The pro\ision in the act of June 12, 1906 (34 Stat., 250), amending the pro- vision relative to furnishing fuel to officers of the Army in the act of June 18, 1878 (20 Stat., 150), by limiting the amount to be piu-chased to the "actual personal necessities" of commis- sioned officers on the active list as certified to by them, is applicable to commissioned officers of the Marine Corps on the active list. (13 Comp. Dec, 27.) Illegal pajonents. — Payments made to offi- cers of the Marine Corps under an act which had been repealed by a later law relating to the Army, although not construed by the account- ing officers as repealed, are binding upon the Government and can not be recalled to the pecuniary disadvantage of any officer; but no erroneous practice of however long standing can justify the allowance of a claim, contested by the Government in a suit, contrary to what is the true meaning and intent of the statute. (U. S. V. Freeman, 3 How., 656. For other cases, see note to sec. 236, R. S.) Pay of officers while out of the service. — Marine Corps officers who were reduced under the act of March 2, 1847, and restored under a subsequent act are not entitled to pay during the interval. Had it been the design of the act which restored them to give them pay during the interval of the reduction, as well as rank, it would have been so declared. The relation back was for rank, not for pay. The whole ob- ject of the act was to place these officers back in the service by a new commission. All princi- ple is against the allow^ance of such pay. WTien no service is needed, no compensation should be allowed. (5 Op. Atty. Gen., 101.) Extra allowance for disbursing money. — Congress ha\'ing prohibited extra allowance or compensation in any form to an officer of the Army on account of the disbursing of any pub- Uc money appropriated by law, held that the quartermaster of the Marine Corps is not there- after entitled to such extra compensation. (3 Op. Atty. Gen., 516; compare, U. S. v. Kuhn, 26 Fed. Cas. No. 15, 545.) For other cases, see generally notes to sec- tion 1556, etseq., relating to "Pay, emoluments, and allowances" of the Navy; as to retired pay of officers and enlisted men of the Marine Corps, see note to section 1622; as to brevet pay and emoluments, see note to section 1604; as to ad- ditional pay allowed officers exercising higher command in time of war, see note to section 1611; as to pay of enlisted men detained in the service after expiration of enlistment, see sec- tion 1422, and note thereto; as to pay of Marine Band, see section 1613, and note thereto. Sec. 1613. [Marine band.] The marines who compose the corps of musi- cians known as the "Marine band" shall be entitled to receive at the rate of four dollars a month, each, in addition to their pay as non-commissioned officers, musicians, or privates of the Marine Corps, so long as they shall per- form, by order of the Secretary of the Navy, or other superior officer, on the Capitol grounds or the President's grounds. — (5 Aug., 1854, c. 268, s. 1, v. 10, p. 586. 18 Aug., 1856, c. 162, s. 5, v. 11, p. 118.) changed in part pavment for the purchase of like articles. (Act Mar. 4, 1917, 39 Stat., 1189.) Status of Marine Band. — While the Marine "A member of the said band shall not, as an indi\"idual, furnish music, or accept an engagement to furnish music, when such furnishing of music places him in compe- tition with any civilian musician or musi- cians, and shall not accept or receive remuneration for furnishing music except under special circumstances when author- ized by the President." (Act Aug. 29, 1916, 39 Stat. ,612, relating to Marine Band.) As to composition and pay of Marine Band, see section 1596, Revised Statutes, and act of August 29, 1916 (39 Stat., 612), quoted thereunder. Detail of musicians to companies or detach- ments of marines: See section 1611, Re- \'ised Statutes. Worn-out band instruments, sewing machines, machinery, and rubber tiies may be ex- Corps was established in 1775, and its band is one of the best known organizations of the char- acter in the country, curiously this band has never had formal statutory recognition. Drums and fifes were provided for the Navy as long ago as 1794(1 Stat., ;^50), while in 1798 "musicians, " then understood to mean drummers and fifers, were given to the Marine Corps (1 Stat., 590). Section 1596, Re\ased Statutes, describes the organization of the Marine Corps as consisting of a certain number of officers, noncommissioned officers, and privates, together \Hth a drum major, a principal musician, 30 musicians, 60 drummers, and 60 fifers; but no mention is made of a musical organization until the enact- 951 Sec. 1613. PL 2. REVISED STATUTES. The Navy. nipnt of the laws now condensed in section IG13 of the Revised Statutes. The only other pro- vision looking even indirectly to a musical organization is that of section 1596. (Bond v. U. S., 21 Ct. Cls., 457; see also, Kepplert). U. S., 27 Ct. Cls., 482.) Not a "Navy" band. — The provisions of the act of May lli, 1908 (35 Stat., 153), wliich proliibit "Na\^ bands or members thereof" from receiving remuneration for furnishing music outside the limits of military posts, when the furnishing of such music places them in competition Anth local musicians, do not apply to the Marine Band, notwithstanding that simi- lar proAOsion for "Army bands" was made by act of May 11, 1908 (35 Stat., 106, 110). (27 Op. Atty. Gen.,90.) The words, "Na\'y bands," do not include the Marine Band, and in the servdce would not ordinarily be understood to include a band made up of marines. _ (27 Op. Atty. Gen., 90.) Section 1613, Revised Statutes, recognizes the band as having a particular title of its o^vn, viz, "Marine Band." In construing subse- quent legislation it should be assumed that Congress appreciated the significance of the fact that this organization was generally known as the "Marine Band," as recognized by said section. (27 Op. Atty. Gen., 90.) It is, however, undoubtedly true that at- tendant circumstances might show an intention on the part of Congress to include the Marine Band by the term "Navy bands." No such circumstances exist in this case, in which the statute restricting such bands in furnishing music outside is quasi penal and should be strictly construed. (27 Op. Atty. Gen., 90.) See later statute quoted above with specific reference to the Marine Band. Private detailed to duty with Marine Band. — A private in the Marine Corps was as- signed to duty with the Marine Band at the time of his enlistment, and remained and performed duty with the band, as a private, until he was rated as a musician. Held, that he was one of "the musicians who compose the organization known as the Marine Band," while so detailed; and having performed on the Capitol Grounds and on the President's grounds under proper orders, was entitled to the additional pav pro\'ided for by Revised Stat- utes, section 1613. (U.S. v. Bond, 124 U.S. , 301.) The additional compensation given by sec- tion 1613 to the marines who compose the organization kno^^'n as the Marine Band, is not restricted to those who are formally rated as musicians, but extends to all marines attached to the band so performing. (Bond v. U, S., 21 Ct. Cls., 457.) The statute does not say that the ' ' members of the Marine Band" shall receive extra compen- sation, for no such Vjand is known to the law; but the pay is given to those ' ' marines who com- pose the corps of musicians known as the Marine Band." The pliiaseology of section 1613 is extremely peculiar. It seems to recog- nize the fact that marines other than those rated as musicians performed in the band. (Bond V. V. S., 21 Ct. Cls., 457.) Pay of Marine Band. — See laws noted imder section 1596, Revised Statutes, as to the composition and pay of the Marine Band. Prior to the act of March 3, 1899, section 24 i30 Stat . , 1009), relating to the pay of the Marine iand, the pay of enlisted men in the Marine Corps was assunilated to Army pay, which was less than that pro\dded in said section; and it was doubtless for that reason that Congress added the last clause to that section, viz, "such musicians of the band to have no in- creased pay for length of service. " Under this section, held that as to musicians of the band of the Marine Corps, section 1284, Revised Statutes, providing for pay for length of service to eulisted men of the Army, is superseded, and that an enlisted man in the Marine Corps, member of said band, who was retired after 30 years' service, is not entitled to recover the additional pay under section 1284, allowed soldiers for reenlistment. (Giacchetti v. U. S., 39 Ct. Cls., 381.) Under existing statutes relating to the Marine Band, the question of the emoluments of that excellent organization is imfortunately in- volved in some doubt. (Keppler v. U. S., 27 Ct. Cls., 482, 485.) The band at the Military Academy, popularly known as the West Point Band, was once one of fifteen bands, all upon the same footing; but since the act of March 3, 1869, has been the only military band in the Army of the United States. Members of that band are allowed the pay of engineer soldiers; it is well settled that what the officers and enlisted men of the Army receive, the officers and enlisted men of the Marine Corps shall likewise receive. Members of the Marine Band, under section 1612, Revised Statutes, are entitled to the pay of "enlisted men of like grades in the infantry of the Army.'' The only enlisted men of like grades in the infantry of the Army were, at the tinie of the enactment, the members of the West Point Band. Held, that members of the Marine Band are entitled to the same retained pay as received by members of the West Point Band and engineer soldiers. (Patyschke v. U. S.,31 Ct. Cls., 384.) Allowances of second leader. — The "second leader" of the Marine Band is entitled by statute to the allowances of a sergeant major. By Army Regulations sergeants major are entitled to quarters at the rate of one room, and by the act of March 2, 1907 (34 Stat., 1167), they are entitled to heat and light for the same. (Smith V. U. S., 47 Ct. Cls., 313.) No quarters being available for the second leader at the Marine Barracks, held that he is not entitled to commutation therefor, not being a commissioned officer, but only ranking as an enlisted man, and no statute or regulation providing for commutation of quarters for enlisted men of the Army. (Smith v. U. S., 47 Ct. Cls., 313.) By act of May 4, 1898 (30 Stat., 388), an appropriation was made for the hire of quarters for certain enlisted men employed in the office of the Marine Corps in Washington, including the leader of the band, but no appropriation was made for quarters for the second leader, and in the absence of express appropriation therefor quarters can not be hired for him. (Smith V. U. S., 47 Ct. Cls., 313.) 952 The Navy. Ft. 2. REVISED STATUTES. Sec. 1615. Sec. 1614. [Deduction for hospitals.] The Secretary of the Navy shall deduct from the pay due each of the officers and enlisted men of the Marine Corps at the rate of twenty cents per month for every officer and marine, to be applied to the fund for Navy hospitals. — (2 Mar., 1799, c. 36, s. 2, v. 1, p. 729. 26 Feb., 1811. c. 26, s. 1, v. 2, p. 650.) Similar provision is made by section 4808, Re\ised. Statutes. _ See section 1586, Revised Statutes, and note thereto, as to medicine and medical attendance. A. clerk to a commandaiit of a navy yard is neither an officer, enlisted man, nor marine, and the Secretary of the Navy is not authorized Sec. 1615. [Rations of enlisted men.] The non-commissioned officers, privates, and musicians of the Marine Corps shall, each, be entitled to receive one Navy ration daily. — (1 July, 1797, g. 7, s. 6, v. 1, p. 524. 11 July, 1798, c. 72, s. 2, V. 1, p. 595.) under section 1614, to deduct 20 cents per month from his pay. Such a clerk is not entitled to reimbursement for medicines and medical attendance. (1 Comp. Dec, 289. But see 25 Comp. Dec, 745, in which clerks to commandants were held to be officers of the Navy in another connection. ) Amendment to this section was made by act of March 4, 1917 (39 Stat., 1189), under "Provisions, Marine Corps," as follows: "Hereafter no law shall be construed to entitle enlisted men on shore duty to any rations or commutation therefor other than such as are now or may hereafter be al- lowed enlisted men in the Army: Provided, That when it is impracticable or the ex- pense is found greater to supply marines serving on shore duty in the island posses- sions and on foreign stations with the Army ration, such maiines may be allowed the Navy ration or commutation therefor. " (It had pre\iously been pro\'ided by a clause in the aimual naval appropriation act of March 2, 1891, and subsequent years, under "Provisions, Marine Corps," that "no law shall be construed to entitle enlisted marines on shore duty to any rations or commutation therefor other than such as now are or may hereafter be al- lowed enlisted men in the Army. " Com- mencing with the act of Mar. 3, 1901, there was added to this clause in the annual appropriation act, the following proviso: "That when it is impracticable or the expense is found greater to supply marines serving on shore duty in the island posses- sions and on foreign stations with the Army ration, such marines may be allowed the Navy ration or commutation therefor. " These clauses were thereafter repeated annually, until the act of Mar. 4, 1917, above quoted, in which they were made permanent legislation by the use of the word "hereafter.") Amendment was also made to this section by act of July 11, 1919 (41 Stat., 154). By act of May 18, 1920, section 5 (41 Stat., 602), it was pro\'ided "that all noncommis- sioned officers of the Army of grade of color sergeant and above as fixed by existing Army Regulations and noncommissioned officers of the Marine Corps of correspond- ing grades shall be entitled to one ration or commutation therefor in addition to that to which they are now entitled. The com- mutation value shall be determined by the President on July 1 of each fiscal year, and for the current fiscal year the value shall be computed on the basis of 55 cents per ra- tion. " By section 13 of the same act C^l Stat., 604), it was provided that this pro- \'ision shall remain effective until June 30, 1922, unless sooner amended or repealed. By act of June 4, 1920, section 4 (41 Stat., 761), establishing new grades and pay for enlisted men (noted under sec. 1612, R. S., under "Army laws applicable to Marine Corps"), it was provided that "the tem- porary allowance of rations authorized by section 5" of the act approved May 18, 1920, "shall apply only to enlisted men of the first three grades. " "Commutation of rations to recruiting parties, and enlisted men traveling on special duty, at such rate as the Secretary of the Navy may prescribe, " is authorized by clause in the annual naval appropriation act under "Provisions, Marine Corps." (Act June 4, 1920, 41 Stat., 831.) Rations of enlisted men of the Navy: See sections 1579-1585, Revised Statutes, and notes thereto. Rations are "allowance" and not "pay." — -The clause referring to additional ration or commutation therefor, in section 5 of the act of May 18, 1920 (41 Stat., 602), which, under section 4 of the Army reorganization act of June 4, 1920 (41 Stat., 761), shall apply only to enlisted men of the Army and Marine Corps of the first three grades, became effective from May 18, 1920, such additional ration being an allowance, and not one of the increases of pay which, under said act of May 18, 1920, became effective from January 1, 'l920. (27 Comp. Dec, 31.) Commutation defined. — Commutation in the military or naval service is money paid in substitution of something to which an officer, sailor, or soldier is entitled. Being regulated by statute, commutation can not be allowed by inferior authority. (Jaegle v. U. S., 28 Ct. Cls., 133.) Under a usage in the Marine Corps, musicians at their option were allowed to take the cost price of their rations, instead of being subsisted on the rations issued. This payment to musi- tians of the cost price of rations was not commu- 963 Sec. 1616. P/. 2. REVISED STATUTES. The Navy. tation, but was \artually a purchase of the rations from them at the invoice price, and a musician who elected to take the price instead of subsistence in kind was not thereafter en- titled to the commutation price of a Navy- ration prescribed In- Re\'isea Statutes section lo85, not\\'ithstandin;j; that the money paid to him was not the commutation price of the Navy ration prescribed by sections 1580 and 1581, Revised Statutes, but was the actual cost of an inferior ration which during his period of service was issued to the corps. (Jaegle v. U. S., 28 Ct. Cls., 133.) Commutation is not necessarily equal to the value of the thing for which it is a substitute, but is supposed to be in the general average of cases a fair equivalent. (Jaegle v. U. S., 28 Ct. Cls., 133.) The principle which governs the commuta- tion of rations in lieu of subsistence is that commutation will not be allowed where sub- sistence in kind is provided by the Govern- ment. (Jaegle v. U. S., 28 Ct. Cls., 133.) Rations of officers. — An officer of the Ma- rine Corps attached to a seagoing vessel is not entitled to the ration allowed by Re\'ised Statutes, section 1578, to a naval officer so at- tached. Such an officer is, by section 1612, subjected to the provisions of section 1269. Commissioned officers of the Army are not allowed rations, although they are allowed to the noncommissioned officers and enlisted men by section 1293. (Reid v. U. S., 18 Ct. Cls., 625.) Subsistence of enlisted men. — The ex- penses necessarily grooving out of the transpor- tation and subsistence of marines detailed for the Navy Department's exhibit at the World's Columbian Exposition may be paid from the fund provided for the Marine Corps and its subsistence. (20 Op. Atty. Gen., 577.) Sec. 1616. [Service on armed vessels.] Marines may be detached for service on board the armed vessels of the United States, and the President may de- tach and appoint, for service on said vessels, such of the officers of said corps as he may deem necessary. — (1 July, 1797, c. 7, s. 4, v. 1, p. 523. 11 July, 1798, c. 72, ss. 1, 3, V. 1, p. 595.) By act of March 3, 1909 (35 Stat., 773), making appropriations for pay of the Marine Corps for the ensuing fiscal year, it was pro\aded "that no part of the appropriations herein made for the Marine Corps shall be ex- pended for the purpose for which said ap- propriations are made imless officers and enhsted men shall serve as heretofore on board all battleships and armored cruisers, and also upon such other vessels of the navy as the President may direct, in detach- ments of not less than eight per centmn of the strength of the enlisted men of the Navy on said vessels." (This proviso was not repeated in subsequent years.) "When a force of marines is embarked on a na- val vessel, or vessels, as a separate organi- zation, not a part of the authorized com- plement thereof, the authority and powers of the officers of such separate organization of marines shall be the same as though such organization were sersdng at a navy yard on shore, but nothing herein shall be con- strued as impairing the paramount au- thority of the commanding officer of any naval vessel over the vessel under his com- mand and all persons embarked thereon." (Act Aug. 29, 1916, 39 Stat., 586.) Power of Congress to regulate duty of Marine Corps. — The Attorney General enter- tains no doubt as to the constitutionality of the clause contained in the naval appropriation act of March 3, 1909 (above quoted). If the Presi- dent, as Commander in Chief, desires to direct the JIarine Corps to perform any fimction which shall involve the application of the ap- propriation therein made, he must direct that oflieers and enlisted men of the corps shall serve as theretofore on board all Ijattleships and armored cruisers, and u])on such other vessels as he may direct, in detachments of not less than eight per centum of the strength of the enlisted men of the Navv on said vessels. (27 Op. Atty. Gen., 259.) Inasmuch as Congress has power to create or not to create, as it shall deem expedient, a Ma- rine Corps, it has power to_ create such corps and make appropriation for its pay, but pro\'ide that such appropriation shall not be available unless the corps l^e employed in some desig- nated way. (27 Op. Atty. Gen., 259.) See cases noted imder Constitution, Article II, section 2, clause 1, as to powers of the Presi- dent as Commander in Chief. Accounts of marines carried on vessels; serving on shore. — Marines doing duty in Cuba, whose pay accounts were kept on the paATnaster's books of a vessel for convenience, but who were never attached to the vessel for naval duty, were not entitled to share in the bounty awarded said vessel. Ne^'er ha\'ing served on the vessel, they could not be con- sidered to be temporarily absent therefrom within the meaning of section 4633, Revised Statutes, which pro\dded that "no officer or other person who shall have been temporarily absent on duty from a vessel on the books of which he continued to be borne, while so ab- sent, shall be deprived, in consequence of such absence, of any prize money to which he would other\vise be entitled." (Engagement off San- tiago Bay, 36 Ct. (^Is., 200.) The words "detached" and "detach" are undoubtedly used in this section in their proper military significance. Marines on board the armed vessels of the United States are for the time being out of their normal relations to the Marine Corps and removed from the direct com- mand of those officers who would otherwise ex- ercise such direct command under the law. (File 21277, Mar. 31, 1906; see note to sec. 1617.) 954 The Navy. Ft. 2. REVISED STATUTES. Sec. 1619. Sec. 1617. [Command of navy yards or vessels.] No officer of the Marine Corps shall exercise command over any navy-yard or vessel of the United States.— (30 June, 1834, c. 132, s. 4, v. 4, p. 713.) Commandants of navy yards to be selected ' ' fi'om officers not below the gi-ade of com- mander." (Sec. 1542, R. S.; see note to that section.) The President is authorized "to formulate appropriate rules goveiTiing assignments to command of vessels and squadroas." (Act Mar. 3, 1901, 31 Stat., 1133; see note to sec. 1529, R. S.) Purpose of section. — It seems clear that the act of June 30, 1834, embodied in this section, was passed to avoid the danger lest an officer of marines, who might be altogether ignorant of na\dgation and inexperienced in nautical matters, should find himself accidentally the officer of highest rank on board a ship and claim the command by -virtue of his rank. Navy yards were evidently included in the terms of the act of 1834 because the objections to the exercise of command over them on the part of officers of marines, although less in degree, were the same in kind as those existing to the exercise of like command bv such officers over ships of war. (File 21277, Mar. 31, 1906.) Rank of officer iramaterial.— Whatever the rank of a marine officer, he is always subject to the orders of the captain of the sliip or the commandant of the navy yard on or at which he serves. (File 21277, Mar. 31, 1906.) Authority of higher officers of corps. — Certain higher officers of the corps not only may legally but are eAddently intended by this law to exercise some measure of authority over those officers and enlisted men who may be "detached" for service on board vessels or at navy yards; as they may and indeed must exercise a like measm'e of authority over any of the forces who may be detached for service with the Army under section 1621. (File 21277, Mar. 31, 1906.) Jurisdiction at naval stations. — It will be noted that this statute refers only to navy yards, and does not apply to naval stations which are not navy yards, and moreover that it does not prohibit the exercise of command within a ship or within a nary yard by officers of marines; it merely provides that they shall not have cormnand "over" the ship or "over" the yard. (File 21277, Mar. 31, 1906.) "No officer of the Marine Corps shall exercise command over any naval station of the United States." (Navy. Regs., 1913, art. 4101, par. 6. See also file 5530, Nov. 8, 1906.) While section 1617 refers only to navy yards and vessels, and "does not apply to naval stations which are not navy yards," neverthe- less the ]\Iarine Corps is at all times subject to the regulations for the government of the Navy, except in the single contingency of being detached and assigned temporarily to duty with the Army; and as the Navy Regula- tions provide that no officer of the Marine Corps shall exercise command over any station, held that a marine officer could not exercise com- mand over the naval station, Hawaii, by suc- cession, in the absence of line officers of the Navy. (File 5530, Nov. 8, 1906.) Marine brigade, Philippine Islands. — • The officer commanding the marine brigade in the PhiUppines should have fuU command over so much of this force as is not "detached" for duty on board any armed vessel or at any navy yard. There is no legal impediment to his exercising authority for administrative or disciplinary purposes over the detachments which are on duty at navy yards, or in gi^'ing him control for such purposes over all the marines on duty in the Philippines. (File 21277, Mar. 31, 1906.) The officer in command of the marine brigade in the Philippines is subject to the orders of the commander of the Philippine squadron, as well as of the commander in chief of the Asiatic fleet. (File 21277, Mar. 31, 1906.) Sec. 1618. [Marines substituted for landsmen.] The President may substitute marines for landsmen in the Navy, as far as he may deem it for the good of the service.— (3 Mar., 1849, c. 103, s. 1, v. 9, p. 377.) "The Secretary of the Navy is authorized, in his discretion, to establish such grades and ratings as may be necessary for the proper administration of the enlisted personnel of the Navy and Marine Corps." (Act June 4, 1920, sec. 7, 41 Stat., 836.) The transfer of marines to the Hospital Corps of the Navy is authorized by act of August 29, 1916 (39 Stat., 572), which also authorizes similar transfers from the Hospital Corps to the Marine Corps. Sec. 1619. [Duty on shore.] The Marine Corps shall be liable to do duty in the forts and garrisons of the United States, on the sea-coast, or any other duty on shore, as the President, at his discretion, may direct. — (11 July, 1798, c. 72, s. 6, V. 1, p. 596.) See notes to sections 1616, 1617, and 1621, ReAdsed Statutes. Norraal duty of marines. — This section indicates what are the duties of the Marine Corps under normal conditions contemplated by its organization. (File 21277, Mar. 31, 1906.) 54641°— 22 61 955 Sec. 1621. Pt. 2. REVISED STATUTES. The Navy. Sec. 1620. [Regulations.] The President is authorized to prescribe such military regulations for the discipline of the Marine Corps as he may deem expedient. — (30 June, 1834, c. 132, s. 8, v. 4, p. 713.) As to regulations in general, see sections 161 and 1547, Revised Statutes, and notes thereto. Ab to regulations governing the ^^arine Corps, see section 1621, Revised Statutes, and note thereto. Post exchanges. — Navy regulations author- izing the establishment of post exchanges in the Marine Corps conflict vith no law. A post exchange so established is not a voluntary association but an institution established by the Government for the benefit of commissioned officers and enlisted men. A disbursing officer of the Marine Corps who receives money from enlisted ^-\(in under such regulations is as re- sponsible for it as for any other money confided to his care. The Government has such an interest in the funds of the post exchange as to justify a deduction of the pay of the disbursing officer in charge in order to, reimburse the enlisted men for their losses incurred by reason of his neglect and want of care. (Woog v. U. S.,48Ct. Cls.,80.) Sec. 1621. [When detached for service with the Army.] The Marine Corps shall, at all times, be subject to the laws and regulations established for the government of the Navy, except when detached for service with the Army by order of the President; and when so detached they shall be subject to the rules and articles of war prescribed for the government of the Army. — (11 July, 1798, c. 72, s. 4, v. 1, p. 595. 30 June, 1834, c. 132, s. 2, v. 4, p. 713.) nineteen hundred and sevent-een: Provided, That officers of the Marine Corps tempora- rily promoted to higher grades in any of the forces of the Army under the provisions of this Act shall not thereby vacate their permanent appointments or commissions or be prejudiced in their relative lineal standing in the Marine Corps: Provided further, That temporary vacancies in the Marine Corps caused by the ajipointment of officers to higher grades in the Army shall be temporarily filled in the same manner as is now prescribed by law: And provided further, That the temporary pro- motions herein authorized shall contmue only while such officers are detached for duty Mdth the Army. " (Act Jan. 12, 191<), 40 Stat., 1054.) See section 1135, Revised Statutes, as to sup- plies and transportation for marine detach- ments cooperating with land troops. The Secretary of War was authorized and di- rected to transfer to the Secretary of the Navy, for the use of the Marine Corps without payment therefor, such reserve stock of clothing, arms, equipment, and other necessary military supplies, invento- ried at the cost to the Army, and not to exceed in the aggregate $7,000,000, as the same may from time to time be requisi- tioned. (Act Feb. 25, 1919, 40 Stat., 1174.) Jurisdiction of the Secretary of the Navy. — The Secretary of the Navy is the organ through which the President, who is commander in chief, makes known his will to the Navy. AVhether the Marine Corps shall be doing service on shipboard or on shore, the President's orders may properly pass thi'ough the Secretary of the Navy to it, except where the corps shall have been incorporated with the Army for a given service on land. (1 Op. Atty. Gen., 380.) The Marine Corps belonging to the naval establishment, and the orders issued by the Secretary of the Navy being, in contemplation Amendment to this section was made by act of August 29, 1916 (39 Stat., 651), now em- bodied in act of June 4, 1920 (41 Stat., 787-812), prescribing new Articles of War, article 2 of which provides that "the follomng persons are subject to these articles and shall be understood as included in the term 'any person subject to military law,' or 'persons subject to military law,' whenever used in these articles: * * * (c) Officers and soldiers of the Marine Corps when detached for service with the armies of the United States by order of the Presi- dent: Provided, That an officer or soldier of the Marine Corps when so detached may be tried by military court-martial for an offense committed against the laws for the fovernment of the naval service prior to is detachment, and for an offense com- mitted against these articles he may be tried by a naval court-martial after such detachment ceases. " By act of August 29, 1916 (39 Stat., 573), it was pro\'ided that "officers and enlisted men of the Medical Department of the Navy, serving with a body of marines detached for service mth the Army in accordance with the provisions of section sixteen himdred and twenty-one of the Revised Statutes, shall, while so serving, be subject to the rules and articles of war prescribed for the government of the Army in the same manner as the officers and men of the Marine Corps while so serving. " •'Commissioned officers of the Marine Corps, detached for duty with the Army imder the provisions of section sixteen hundred and twenty-one. Revised Statutes, shall be eligible, in the same manner as officers of the Regular Army, for temporary promo- tion to higher gi-aaes in any of the forces provided by the Act entitled 'An Act to authorize the President to increase tem- porarily the ^rilitary Establishment of the United States, ' approved May eighteenth, 966 The Navy. PL 2. REVISED STATUTES. Sec. 1621. of law, the orders of the President, it follows that the Secretary may suspend, modify, or rescind any order issued by the commandant of the corps or any subordinate officer, except •where a direct authority has been given by Congress to an officer to perform any jjarticular fimction, such as to order courts-martial in cer- tain cases. (1 Op. Atty. Gen., 380.) In the absence of a special order from the President detaching the Marine Corps for ser- xice with the Ai'my, the office of commandant of the Marine Corps is imder the direct super- vision and control of the Secretary of the Navy, and in the event of a vacancy its duties may be performed by the Secretary or by the Acting Secretajy. (28 Op. Atty. Gen., 486, 490.) The Secretary of the Na\'y baa authority, imder section 1621, to detail men to guard and protect property of the Government placed on exhibition at the World's Columbian Exposi- tion; the cost of transportation and sustenance of such detail must be paid from the fimd pro\ided for the Marine Corps and its subsist- ence, and is only limited by the consideration of the question whether there are sufiicient funds available for that purpose, as to which the Secretary is the sole judge. (20 Op. Atty. Gen., 576.) Not abureau of the Navy Department. — The Maiine Corps is a part of the naval estab- lishment, but it is not part of the Navy Depart- ment as established at the seat of government; it is imder the supei-vision of an executive department, but that relation to the depart- ment is not the same as being part of it. The Navy Department is established by section 415, Re\'ised Statutes, and section 419 estab- lishes certain bureaus among which is to be distributed the business of the department; the Marine Corps is not one of the bureaus, and there is no law making it a bureau, office, or branch of the Navy Department. (11 Comp. Dec, 558; see also 28 Op. Atty. Gen., 487, where tlus question suggested but not decided.) Jvuisdiction over Marine Corps when serving alone. — This section clearly subjects the Marine Corps when serving alone and with- out the cooperation of either the Army or Navy, to the laws and regulations established for the government of the latter. (File 21277, Mar. 31, 1906.) Normal status of Marine Corps part of the Navy.^See notes to sections 761, 1418, and 1422, ReArised Statutes. Does the Marine Corps belong to the Army or the Na\'y? Its name would seem to answer this question. It is called a marine corps; its characteristic action, then, is to perform duty at sea; and by its primary and fundamental character, therefore, it belongs to the Navy. It is true that the President may order it to perform service on shore; but it would still be the maiine corps performing ser\dce on shore. The order directing it to such service would pass through the Secretaiy of the Navy, as would all the President's orders while engaged in Buch ser\ice, while its action was single or separate fi-om tnat of the Anny. (1 Op. Atty. Gen., 380); compare 2 Op. Atty. Gen., 353, 354, where it is stated that the Marine Corps is more assimilated to the Army proper than to the naval branch of our military establish- ment.) The act of July 1, 1797 (1 Stat., 523), "pro- viding a naval armament, ' ' assigns to each ship, besides mariners, and so forth, a certain number of marines. The duty of marines is exclusively maritime; for sea ser\-ice only. By this act they have no connection vath the Ai-my, in character of duty to be performed. Here they are not amphibious. The next act on the sub- ject of the Marine Corps is that "for estabhshing and organizing a Marine Corps" of July 11, 1798 (1 Stat., 594). The use of the words in this act, "in addition to the present military estabhsh- ment, there shall be raised a corps of marines," and so forth, did not constitute the maiines in fact part of the military estabhshment, nor make applicable to the Maiine Corps general pro\-isions relating to the Army; nor did this follow from the last section of that act, author- izing the President to employ the maiines on shore, and so forth. The maiines were a body known to the law by act of July 1, 1797, as a purely maritime or naval force ; and the enlarge-^ ment of that force or the assigning to them of duties on shore, does not necessarily identify them with the Army, and those words could not have the effect of constituting as part of the Army, a force governed by different rules and regulations, and destined to a ser\ice unknown to and incompatible with the character and du- ties and ser\ice of the Army. The marines are certainly a military force as weU as the Army, and are in addition to the then existing miUtary establishment. It is to be remarked, also, that although the marines may be compelled to do duty on shore, it is not part of their ordinary duty but at the discretion of the President as in case of the invasion of the tenitories of an ene- my's coast by a naval force the seamen may be compelled to do the duty of soldiers or marines at the discretion of the commander of the ship or squadron. (U. S. v. Kuhn, 26 Fed. Cas. No. 15,545, pp. 821, 822.) The Marine Corps are at all times subject to the laws and regidations established for the better government of the NaA'y, except when detached for ser\ice with the Army by order of the President. They are organized, as the name implies, for sea ser\ice, and are subject to the direction and control of the Secretaiy of the NaA^. (10 Op. Atty. Gen., 116, 1x8; see also, 10 Op. Atty. Gen., 129.) Although marines are not in some senses, "seamen, " and their duties are in some respects different, yet they are, while employed on board public vessels, persons in the naval serv- ice, persons subject to the orders of naval offi- cers, persons under the government of the naval code as to punishment, and persons amenable to the Navy Department. Their very name of "marines" indicates the place and nature of their duties generally. And besides the anal- ogies of their duties in other countries, their first creation here to serve on board ships ex- pressly declared them to be a part "of the crews of each of said ships" (act Mar. 27, 1794, 1 Stat., 350, sec. 4). Their pay was also to be fixed in the same way as that of seamen (sec. 6, p. 351). So it was again, by the act of April 27, 1798 (1 Stat., 552). And they have ever since 957 Sec. 1621. Pt. 2. REVISED STATUTES. The Navy. been associated with the Navy, except when specially dotailed by the President for service in the Army (see act July 11, 1798, 1 Stat., 595. 59G). Thus paid, thus serving, and thus gov- erned like and with the Navy, it is certainly no forced construction to consider them as em- braced in the spirit of the act under considera- tion by the description of persons "enlisted for the Navy." (Wilkes v. Dinsman, 7 How., 89. See note below, under "Navy laws held appli- cable to Marine Corps.") The act of June 30, 1834 (4 Stat., 713), adds much strength to these conclusions. By sec- tion 2 it provides "that the said cor])s shall at all times be subject to and under the laws and regulations which are or may hereafter be es- tablished for the better government of the Na\y," etc. That corps thus in some respects became still more closely identified \vith the Navy. (Wilkes v. Dinsrnan, 7 How._, 89.) The Marine Corps occupies a position inter- mediate in some respects between the Army and the Na^'y. (See sees. 1616, 1619, 1620, and 1621, R. S.) It would thus seern to be, to some extent, an independent organization. There are several sections of the Revised Stat- utes which refer to it distinctively, apart from the naval ser^ice (see sees. 1551, 1596, 1600, 1609, 1612, 1617). Notwithstanding this inter- mediate character of the Marine Corps, and these several proAdsions allying it in several respects with the military ser\ice, held that is it properly classed ^^dth and is a part of the naval service of the United States. (In re Doyle, 18 Fed. Rep., 369, citing 1 Op. Atty. Gen., 381; 11 Op. Atty. Gen., 100; 10 Op. Atty. Gen., 118, 129; In re Bailey, 2 Taney, 200.) In various acts of Congress making appro- priations the Marine Corps are frequently re- ferred to as a part of the naval ser\ice, and are sometimes described as "marines of the United States Navy" (see 10 Stat., 100; 22 Stat., 472, 479, 589, 284). In the revision of the stat- utes, the Marine Corps is provided for by chap- ter 9 of Title XV, "The Navy," while "The Army" is the subject of Title XIV. (In re Doyle, 18 Fed. Rep., 369.) The military establishment of this country is divided by the general laws of the United States into the Army and the Navy, and over each of these one of the great heads of depart- ments, called secretaries, is appointed to pre- side, to manage and to administer its affairs. The ^larine Corps is a military body, designed to perform military services; and while they are not necessarily performed on board ships, their active service in time of war is chiefly in the NaA^, and accompanying or aiding naval expeditions. In time of peace they are lo- cated in navy yards, mainly, although occa- sionally they may be used in forts and arse- nals belonging more immediately to the Army. The statutes of the United States, in prescribing the duties which they may be required to per- form, have not been very clear in any expres- sion which goes to show now far these services are to be rendered under the control of the ofRcera of the Navy or of the Army. It is clear that they may be ordered to service in either branch; but taking all these statutes and the practice of the Government together, held that they are a military body, primarily belonging to the Navy and under the control of the head of the naval department, ^\-ith liability to be ordered to ser\dce in connection with the Army and in that case under the command of Army officers. (U. S. v. Dunn, 120 U. S., 249.) It must be conceded that the Marine Corps, a military body in the regular service of the Tnited States, occupies something of an anoma- lous position, and is often spoken of in statutes which enumerate "the Army, the Navy, and the Marine Corps," or "the Army and the IMarine Corps," or "the NaA"\' and the Marine Corps," in a manner calculated and intended to point out that it is not identical mth either the Army or the Navy. And this argument is the one very much pressed to show that service in the Marine Corps is not serWce in the Army or in the Navy. On the other hand, the services rendered by that corps are always of a military character, and are rendered as part of the duties to be performed by either the Army or the Navy. If there are services prescribed for that corps by the statutes of the United States, or the regulations of either the Army or the Navy, which are not performed in imme- diate connection with the Army or the Navy, and under the control of the heads of the Army or Navy, either civil or military, the court is not aware of them. (U. S. v. Dunn, 120 U. S., 249.) The provisions of the Revised Statutes (sees. 1599 1600, 1613, 1614, 1615, 1616, 1621, and 1623), bringing together the enactments of Congress on the subject of the Marine Corps, show that the primary position of that body in the military service is that of a part of the Navy, and its chief control is placed under the Secre- tary of the Navy, there being exceptions when it may, by order of the President or some one ha\'ing proper authority, be placed more imme- diately, for temporary duty, with the Army and under the command of superior Army officers. (U. S. v. Dunn, 120 U. S., 249.) Whatever view may be taken, the Marine Corps can not be considered as a distinct mili- tary organization, independent of the depart- ments of the Army and Navy, and under the supervision and control of neither of them, having no superior outside of its own officers except the President. While it may be true that it is not so exclusively a part of the Navy as ships and navy yards are, yet its general supervision and control remain with the Navy Department. (U. S. v. Dunn, 120 U. S., 249.) The statutes relating to the Marine Corps, and decisions of the Supreme Court of the United States, reviewed and held: "These provisions, together with many others that might be cited , indicate beyond doubt that the Marine Corps in the contemplation of Congress constitutes a constituent part of the naval serWce of the country, subject to the laws and regulations that govern that arm of the service, and this, we think, has been so held by the Supreme Coiut of the United States." (Elliott v. Harris, 24 App. D. C, 11; file 10245-03; followed and applied by Navy Department Aug. 19, 1913, file 26251-6297: 4&5; compare, McCalla v. Facer, 144 U. S., 61, noted under sec. 1418, R. S.) The military establishment of the United States consists of three principal organizations, 958 The Navy. PL 2. REVISED STATUTES. Sec. 1621. the Army, the NaVy, and the Marine Corps. Each has an organization distinct from that of the others, as plainly appears in the Revised Statutes; and each is the subject of distinct annual appropriations by Congress. (19 Op. Attv. Gen., 616, 618, 619.') The organization of the Marine Corps is as- similated to that of the Army, but its sphere of duty is mostly on board ships or at naval sta- tions on land, and it may be called the police of the Na\^; while on the other hand it is always liable to be ordered to ser\dce in con- junction ^\ith the Army, and is subject to the Articles of War or the Articles for the Govern- ment of the ]Na\y, according as it serves with the one or the other of these branches of the ser^-ice. (19 Op. Atty. Gen., 616, 618, 619.) That the Marine Corps has a closer affinity ■with the Na\^ than ■with the Army is manifest both fi'om its designation and from section 1621 of the Re\-ised Statutes. According to this section, the ser\'ice of the Marine Corps with the Navy is its usual and regular ser-vice, while that "with the Army is unusual and exceptional. This view was substantially adopted by the Supreme Court in the case of United States v. Dunn and Wilkes v. Dinsman, above noted. (19 Op. Atty. Gen., 616, 618, 619.) The Marine Corps, though a distinct organiza- tion from the Army or Na\'j^ is nevertheless subject to the laws and regulations for the gov- ermnent of the Na"vy, except when detached for ser\dce "with the Army by order of the Pres- ident (sec. 1621, R. S.). In relation to rank, the officers of the Marine Corps shall be on the same footing as officers of similar gi'ades in the Army (sec. 1603). And they shall take the same oath prescribed for officers and enlisted men of the Army (sec. 1609). By section 1622, commissioned officers of the Marine Corps shall be retired in like cases, etc., as officers of the Army, except as provided in section 1623. The noncommissioned officers, privates and musicians of the Marine Corps are, by section 1615, entitled to receive one Navy ration daily, and by section 1617 it is provided that no offi- cer of the Marine Corps shall exercise command over any navy yard or vessel of the United States. By section 1616 the officers and en- listed men of the corps are subject to duty on board the anned vessels of the United States; and by section 1619 the corps shall be liable to do duty in the forts and garrisons of the United States or other duty on shore, etc. Terms of enlistment in the Army, NaA^y, and Marine Corps are prescribed by sections 1119, 1418, and 1608, respectively. In Wilkes v. Dinsman (above noted), the court, construing act of March 2, 1837 (5 Stat., 157), pro\ddingfor enlistments in the Navy, held that the words "any person enlisted for the Na^y" includes marines; see also. United States v. Dunn (above noted). It \^ill thus be seen that the status of the Marine Corps is a variable one, and though subject to the laws and regulations established for the government of the Nav>% except when detached by the President for serAdce with the Army, they are, in relation to rank, oath, pay, and retirement, assimilated to the Army and subject to the direction of the President they may, under section 1619, be detached for service with the Army anywhere in the United States. (Walton V. U. S., 31 Ct. Cls., 196.) A perusal of ReAdsed Statutes, section 1612, 1621, and 1622, Arill indicate the somewhat anomalous position occupied by the Marine Corps in the military service. It looks to the Army statutes for its rate of pay and to the Na\'y for its laws and regulations, except where de- tached for service A\dth the Army, and the same uncertainty as to its position runs all through the statutes relating to the Army and Navy. Nevertheless, generally speaking and as its name indicates the Marine Corps is a part of the Nav>'. It is that part of the Navy which may on occasions become a part of the Army. Tlie courts have kept this fact in mind in the con- struction of statutes relating to the military serAdce. (Jonas v. U. S., 50 Ct. Cls., 281.) The Marine Corps is clearly organized under the authority conferred by clause 13 of section 8 of Article I of the Constitution, which de- clai'es that the Congress "shall have power to provide and maintain a Navy." and it is gov- erned under so much of the authority conferred by clause 14 of the same section as empowers the Congress "to make rides for the government and regulation of the ■* * * naval forces." This conclusion is established by the decision of the Supreme Court in Wilkes v. Dinsman (above noted ), in which it was determined that a private in the Marine Corps was a "person enlisted for the Navy " in the language of the act under consideration in that case. That decision was cited with approval in United States V. Dunn (above noted). These two decisions support the statement made by the Attorney General while Secretaiy of the Navy, that "its legal status is, beyond a doubt or question, a part of the naval forces of the countiy, if not a part of the Navy in its strictest sense." (27 Op. Atty. Gen., 90.) The Marine Corps has a composition and primary organization distinct from those of both the Army and the Navy, pursuant to chapter 9, Title XV of the Revised Statutes; but that chapter itself is a part of the title con- cerning the Naxy. In United States v. Dunn (noted above), the Supreme Court states what the Revised Statutes, section 1621, makes alto- gether clear; that the Marine Corps is a part of the naval establishment, and is subject to the laws and regulations for the government of the Navy save in the single case when it has been detached for service with the Army by order of the President. Nothing but such order by the President or by his authority can alter the ordinary connection of the Marine Corps with the Navy and connect that corps with the Army. (28 Op. Atty. Gen., 15, 17.) The statutes recognize the Marine Corps as part of the Navy; the Marine Corps is carried upon the Navy Register, and the Isavy Regu- lations assign their duties, except where de- tached for duty in the Armv. (Harllee v. U. S., 51 Ct. Cls., 342. Compare Reid v. U. S., 18 Ct. Cls., 625.) The recent trend of legislation, and depart- mental regulations, as well as decisions of the courts and executive departments, has been in the dii'ection of fixing the status of the Marine Corps even more definitely as an integral part 959 Sec. 1621. PL 2. REVISED STATUTES. The Navy. of the naval service than was the case in prior years. (File 5252-0(1, May 13, l!»i5, citing, inter alia, act of June 30, 1914 (38 Slat., 403). "that hereafter the numl)er of enlisted men of the Navy and Marine Corps provided for shall be construed to mean the daily average num- ber of enlisted men in the naval service during the liscal year.") There is properly speaking no warrant in law for regarding the ]\larine Corps as an anomalous body, intermediate between the Army and iSia\-V, and having relations ^^'ith both. It is true that the Marine Corps is assimilated to tlie Army in some respects, as by sections 1604, IGOi), Hil2, 1622 of the Revised Statutes, and the act of July 28, 1892 (27 Stat., 321); but its legal status is beyond a doubt or question a part of the naval forces of the country, if not a part of the Navy in the strictest sense. (File 21277, Mar. 31, 1906; quoted in 27 Op. Atty. Gen., 90.) GiA-ing to the word "detached" in section 1621, the same appropriate significance which it has in section 1616, it becomes evident that service Avith the Army and consequent subjec- tion to the Articles of ^^'ar is regarded as an exceptional and al)normal condition for the Marine Corps, as clearly as it would be for a force of blue-jackets landed and placed tem- porarily under the orders of an Army officer. (File 21277, Mar. 31, 1906.) Status when detached for service with the Array.— The law is well settled that mem- bers of the Marine Corps detached by the Pres- ident for service with the Army are, while so serving, a part of the Army and not under naval jurisdiction. (Inle 26250-2335, Dec. 18, 1920. j Section 1621 is explicit in sajdng that when detached by order of the President for service with the Ai-my the Marine Corps shall be sub- ject to the rules and articles of war prescribed for the government of the Army; and then, of course, it becomes a "corps of the Army" within the scope of the 122d article of war. (28 Op. Atty. Gen., 15, 19; see note to sec. 1342, R. S.) Where the President should, by order, incor- porate it with an army for any given service on land, its identity as a Marine Corps, pro hac vice, would be lost in that of the Army, and the whole body become, for the time, one. (1 Op. Atty. Gen., 380.) Court-martial jurisdiction. — See article 2 of tlie Articles of War, quoted above under this section. Wliether an officer of the IMarine Corps is li- able to be tried by a naval court-martial or one composed of officers of the Army will depend upon whether the alleged misconduct took place while he was emploved in the land serv- ice. (5 Op. Atty. Gen., 706.) Courts-martial of marine officers stationed on shore and convened under the Articles of War may try and sentence to suffer corporeal pun- ishment marines who have deserted from the public ships, although it would have been oth- erwise had the offense been committed while the marines were employed in any service upon the land, as in the latter case the abolition of corporeal punishment by act of May 16, 1812, in reference to the Army would be applicable and exclude its infliction upon marines. (1 Op. Atty. Gen., 187.) Under Revised Statutes, section 1621, a pri- vate in a brigade of the Marine Corps is not, while that brigade is detached for service with the Army by order of the President, subject to the laws and regulations of the Navy, and a naval court-martial has no jurisdiction over him based on an act constituting an offense both by the rules and regulations of war pre- scribed for the government of the Army and the laws and regulations established for the government of the Navy. (U. S. ex rel. Davis V. Waller, 225 Fed. Rep., 673.) Section 1621 may be construed as though it read: "The Marine Corps is subject to the Ar- ticles of W'ar while on service yn.{\\ the Army by order of the President. At all other times it is subject to the laws and regulations of the Navy." (U. S. ex rel. Davis v. Waller, 225 Fed." Rep., 673.) Granted that the status of the Marine Corps was at first doubtful. It rendered serN-ice at times with the Navy and at times with the Army, without being definitely or pemianently attached to either department. Its "pri- mary" relation was finally settled to be with the Navy, but it had special and temporary Army relations when on ser,vice_with the Army. The early statutes gave recognition to this by providing that it should be subject to the laws and regulations of the Navy, except when de- tached by order of the President for service with the Army. Later the statutes added the clause contained in section 1621, that when so detached it should be subject to the Articles of War. This confirms the conclusion that Con- gi-ess did not intend by section 1621 that a ma- rine should be subject to trial by naval court- martial for an offense committed by him while detached for service with the Army. (U. S. ex rel. DaA-is r. Waller, 225 Fed. Rep., 673.) Under section 1621, Revised Statutes, a marine detached for service -uith^ the Army and thereafter returned to the jurisdiction of the Navy could not be tried by a naval court- martial for an offense committed by him while detached for service 'with the Army, which was a \iolation of Army Regulations. The same laws and regulations which define the offense constitute and designate the com-t which is to trv the offender. (U. S. ex rel. Davis v. Waller, 225 Fed. Rep., 673.) The fifth regiment of marines was organized by du'eetion of the President under Confiden- tial Orders 28790-3, dated May 29, 1917, and was by said order detached for service with the Army in accordance with section 1621, Revised Statutes. No order having been issued de- taching said regiment from duty with the Army and returning it to the jurisdiction of the Navy, it would appear that the Arm;^ has jurisdiction to try a member of that regiment by court- martial for offenses alleged to have been com- mitted by him while an inmate of an Army hospital in this country to which he had been transferred after his return to the United States, having in the meantime been under treatment in naval hospitals in Norfolk and Brookhm. The said private, not ha\ ing been detached from duty \nth the Army and re- turned to naval jurisdiction, continued subject to Armv jurisdiction. (File 27228-547, May 26, 1919") 960 The Navy. Pt. 2. REVISED STATUTES. Sec. 1621. By War Department General Orders No. 96, July 30, 1919, it was provided: "By direction of the President, it is ordered that all officers and enlisted men of the Marine Corps who have heretofore been detached for service ■with the Army in connection with the war against Germany and her allies, and who shall hereafter arrive in the Ignited States shall, upon report- ing at any station, post, camp, garrison, hospital, office, or other unit or organization of the Navy or Marine Corps for duty, forth\vith stand detached from service with the Army and shall revert to their former status of duty with the Navy. All officers and enlisted men of the Marine Corps who ha^-e been detached as aforesaid and who \\a\e heretofore arrived in the United States shall stand detached from service with the Army from this date, provided they have not already been returned to duty ^\'ith the Navy. Officers and enlisted men of the Marine Corps who are patients in Army hospitals shall not come under the provisions of this order until they shall have been dis- charged therefrom . ' ' Jurisdiction to review proceedings of Army board. — The naval authorities are without jurisdiction to review the proceedings or action of the Army authorities in the case of a private in the Marine Corps who died August 29, 1919, while serA-ing with the Amer- ican Forces in France, an Army board having convened on September 29, 1919, and reported that his death was in the line of duty and not the result of his own misconduct, vvhich said report was approved by the convening author- ity and forwarded to the commanding general, headquarters American Forces in France, by whom it was transmitted to the Adjutant General of the Army and thence to the Major General Commandant of the Marine Corps. At the time of his death, said private had not been returned to the jurisdiction of the Navy as he was still mth the American Forces in JYance and did not return to the United States. (File 26250-2335, Dec. 18, 1920. See War Dept. G. O. 96, July 30, 1919, quoted above under "Court-martial jurisdiction. ") Status when cooperating or traveling with Army. — The Articles of War do not operate to give the officers of the jNIarine Corps any authority to exercise command in the Army unless they have been detached for ser\ice with the Army by order of the President and are still serving with the Army under that order. (28 Op. Atty. Gen., 15; see note to sec. 1342, R. S., as to art. 120 A. W.) "^Tien any part of the Marine Corps is present with the Army and engaged in a common enterprise with it, without an order of the President detaching it for service with the Army, the case is one of cooperation and not of incorj)oration ; and in such a case no officer of the Marine Corps can exercise command over the Army any more than a naval officer can when some part of the Navy is cooperating with the Army; and the converse is true of Army officers cooparating vA\\i the Marine Corps. The Marine Corps is a part of the Naval Estab- lishment, and is subject to the laws and regula- tions for the government of the Navy save in the single instance when it has been detached for serA-ice with the Army by order of the Presi- dent. (28 Op. Atty. Gen., 15; see notes to sees. 1342 and 1466, R. S.) Enlisted men of the Navy and Marine Corps, while being transported on board an Army transport are subject to the rules and regula- tions of said transport, but are not amenable to trial by Army court-martial unless attached to the Army by Executive order. (File 26287- 534, June 15, 1910.) The statutes are clear that marines are not subject to the Articles of War unless detached for service with the Army by order of the Pres- ident. It is equally clear that officers and en- listed men of the Navy are not under any cir- cumstances subject to the Articles of War except while serving with marines detached for service with the Army by order of the President, as provided in the act of August 29, 1916 (quoted above, under this section). (Op. J. A. G., Army, Nov. 19, 1920, No. 250401, Navy Dept. file No. 26287-7305:1.) Officers and enlisted men of the Navy and Marine Corps traveling on Army transports, but not dstached for service with the Army, although subject to Army Transport Regula- tions, are not subject to trial by Army courts- martial. (Op. J. A. G., Army, Nov. 19, 1920, No. 250401, Navy Dept. file No. 26287-7305:1.) Under first views the Marine Corps is to be taken as an adjunct of the Navy; nor can it be supposed that the mere fact of its bodily pres- ence upon the law would be sufficient to divest the service which may have been there per- formed of the substantial characteristics of naval service. How long soever such bodily presence may have been continued, it may still well be conceived to have brought with it constructively but essentially nothing but the fulfillment of naval duty. (5 Op. Atty. Gen., 706.) What laws and regulations are included by section 1621. — The term, "the better gov- ernment of the Navy," as used in the law (now embodied in sec. 1621, R. S.), need not be restricted to mere punishment, or to courts- martial, but may include any provision by law intended to secure the safety of the crew and vessel, and insure due subordination and sound discipline in any exigency of the public service. (Wilkes V. Dinsman, 7 How., 89, holding that the law now embodied in sec. 1422, R. S., affecting terms of enlistment in the Navy, was applicable to Marine Corps.) The obvious purpose of section 1621, Revised Statutes, is to provide rules for the discipline of the Marine Corps in the different spheres of duty (military and naval) in which it is liable to serve. Its language does not warrant the inference that it was intended thereby to sub- ject that corps to any other laws and regulations of the Navy than such as relate to discipline and its maintenance. Within this category section 1493, Revised Statutes (relating to ex- aminations for promotion in the Navy), does not fall. (17 Op. Atty. Gen., 117, 118. See act Aug. 29, 1916, 39 Stat., 611, extending sec. 1493, R. S., to the Marine Corps; and see note to sec. 1599, R. S., under "Laws relating to promotion construed.") The act of August 3, 1861, section 17, author- izing the Secretary of the Navy to assemble boards for the retirement of marine officers, 961 Sec. 1621. Pt. 2. REVISED STATUTES. The Navy. does not provide that the l)oard shall consist of officers of that corps, but simply that it shall consist of commissioned officers; this being a la\s- for the government of the Navy \\-ithin the meaning of the a< t of 1834 (sec. 1621 , R. S.), hid that the Pecri^tary of the Navy, under the President, has full power to organize boards for the retirement of marine officers from officers of the Navy of senior rank, under section 17 of said act of iSGl . (10 Op. Atty. Gen., 129, 130.) The effect of the act of June 30, 1834, section 2 (sec. 1621, R. S.), is to subject this corps to the operation of laws for the government of the Na\y, except where by special enactment they are made subject to different laws, as, for instance, by the act of June 30, 1834, section 5, relating to pav and allowances. (10 Op. Atty. Gen., 129.) Navy laws held appUcahle to Marine Corps. — See notes to sections 761, 1418, and 1422, Re\'ised Statutes, as to enlistments in the Marine Corps; note to section 1596, under " Computing number of officers;" and note to section 1599, under ''Appointment of former student at Naval Academy." The act of Congress passed ]\Iarch 2, 1837 (5 Stat., 153), authorized a reenlistment of marines to serv^e during the cruise then about to take place, they being included in the denomina- tion of ' ' persons enlisted for the Navy . ' ' Under the same act the commander of a squadron had power to detain a marine after the term of his enlistment expired, if in the opinion of the commander public interest required it. (Wilkes V. Dinsman, 7 How., 89. See sec. 1422, R. S., and note thereto.) At the time of enlistment the Marine Corps being subject to such laws and regulations as might at any time be established for the better government of the Navy, it was a part of the contract of enlistment that the marine in this case should obey them whenever passed; it was, therefore, no objection to such laws that they were passed after his entering the service. (Wilkes V. Dinsman, 7 How., 89.) The limitations in sections 1418 and 1419, Revised Statutes, undoubtedly apply to en- listments in the ISIarine Corps, under section 1608. (In re Doyle, 18 Fed. Rep., 369; see notes to sections cited.) The Marine Corps is part of the naval service, in which minors over 18 years of age may be enlisted, under sections 1608 and 1418, 1419, 1420, and 1624 (art. 19), without the consent of theu" parents or guardians. (In re Doyle, 18 Fed. Rep., 369; see also Elliott v. Hanis, 24 App. D. C, 11, followed bv Navy Dept., Aug. 19, 1913, file 26251-6297: 4& 5, with reference to unauthorized detention of enlisted men of the Marine Corps after expiration of enlistment to make good time lost by unauthorized absence as pro% ided for in Army laws.) Sei"vice by an officer of the Navy as an en- listed man in the Marine Corps is to be credited to him in calculating his longevity pay, imder the act of March 3, 1883 (22 Stat., 472, 473), pro^iding that "all officers of the Navy shall be credited with, the actual time they may have served as officers or enlisted men in the regular or volimteer Army or Navv, or both," etc. (U. S. V. Dunn, 120 U. S., 249.) The naval appropriation act of August 22, 1912 (37 Stat., 328), authorizing enlisted men of the Navy by their voluntary agreement to ex- tend their enlistments for a period of one, two, three, or four years, held applicable to enlisted men of the Marine Corps. (File 26507-214 : 8, Apr. 5, 1915, following Wilkes v. Dinsman, above noted. See also note to sec. 1418, R. S.) The act of June 30, 1914 (38 Stat., 410), au- thorizing appointments to the Naval Academy from "enlisted men of the Navy," held to au- thorize such appointments to fee made from enlisted men of the Marine Corps. (File 5252- 66, May 13, 1915.) The provisions contained in the naval appro- priation act of March 3, 1915 (38 Stat., 940), c^'eating a "United States naval reserve," did not authorize the creation of a Marine Corps reser\e, for the reason that several pro\ision3 contained in said legislation clearly manifested that Congress did not intend to include the Marine Corps therein. (File 28550-1 : 3, June 15, 1915.) Section 1563, Re\ised Statutes, which forms part of chapter 8 of Title XV, authorizing ad- vances of pay to ' ' persons in the naval ser\ice, ' ' has been invariably construed by the account- ing officers as applying to marine officers. (See Reidr. U. S., 18 Ct. Cls., 625.) Navy laws held not apphcable to Marine Corps.— An officer in the Marine Corps attached to a seagoing vessel is not entitled to the ration allowed by Revised Statutes, section 1578, to a naval officer so attached. (Reid v. U. S., 18 Ct. Cls., 625.) The term "Navy bands" as used in the stat- ute under consideration, held not to include the Marine Band. (27 Op. Atty. Gen., 90, noted under sec. 1613, R. S.) The act of February 9, 1889 (25 Stat., 657), "to provide for the deposit of savings of seamen of the United States Navy," does not extend to enlisted men of the Maiine Corps. (19 Op. Atty. Gen., 616; see also 25 Op. Atty. Gen., 190.) For other cases, see note to section 1418 , Re- vised Statutes, imder "Enlistments in the Ma- rine Corps not governed by Navy laws"; and see note to section 1422, Revised Statutes, with respect of maiine officers for Civil War service. Intention of Congress. — In many cases statutes relating to the Navy are obviously in- applicable to the Marine Corps; either because of express language used therein or because of the manifest purpose of Congress as apparent from a reading of the law itself or from a con- sideration of the conditions and circumstances surrounding its enactment. The word ' ' Navy " may be given an extended meaning to embrace the Marine Corps, as has been done in many cases, wliile on the other hand the facts of a particidar case may be such as to show that it was used in a more restricted sense as referring to the Navy proper, as has likewise been held in many cases. Accordingly, each statute must be construed with reference to specific questions arising thereunder; and the _word "Navy" thus being susceptible of two inter- pretations, it is always permissible to consider the purpose and spirit of the law, and the object 962 The Navy. Pt. 2. REVISED STATUTES. Sec. 1622. have not the right or privilege of making such deposits with a paymaster of theii" branch of the service. (25 Op. Atty. Gen., 190.) If the act of February 9, 1889 (25 Stat., 657), pro\dding for deposits by enlisted men of the Navy, could not properly be construed to apply to the Marine Corps, which is primarily a com- ponent part of the Navy, the sections of the Revised Statutes authorizing such deposits by enlisted men of the Army can not be so con- strued. (25 Op. Attv. Gen., 190.) The act of March 3, 1885 (23 Stat., 350), re- lating to reim1)ursement for losses of personal effects by persons in the Army, does not apply to the Marine Corps, which is governed in this respect by the act of March 2, 1895 (28 Stat., 962), relating to losses bv persons in the naval service. (Harilee v. U. S., 51 Ct. Cls., 342.) The Army appropiiation act of April 27, 1914 (38 Stat., 353, 354), providing that no enlist-, ment shall be regarded as complete until the soldier shall have made good any time in excess of one day lost by unauthorized absences, does not apply to the "Marine Corps, although a pro- vision in the same paragi-aph, as to forfeiture of pay in certain cases of absence from duty, is applicable to the Marine Corps by virtue of section 1612, Revised Statutes. (Comp. Dec, June 3, 1914, 160 S. and A. Memo., 3250.) The provisions of sections 2, 3, and 4 of the actof June 16, 1890, entitled "An Act to prevent desertions from the Army, and for other pur- poses," are not applicable to the Marine Corps. Section 2 relates to the terms of enlistment in the Anny, and provides that soldiers discharged prior to expiration of enlistment shall not be entitled to certain allowances; section 3 pro- vides for the arrest of deserters by civil offi- cers; and section 4 authorizes the President to permit enlisted men to purchase their dis- charges in time of peace. However, section one of the same act, relating to the retention of certain pay until discharge, is applicable to the Marine Corps by virtue of section 1612, Re- vised Statutes. (19 Op. .Mty. Gen., 616.) Section 1216, Revised Statutes, as amended by act of T^Iarch 29, 1892 (27 Stat., 12), provid- ing for the issuance of certificates of merit to enlisted men of the AiTay distinguishing them- selves in the service, etc., does not apply to en- listed men of the ^Iarine Corps, who are en- titled to the benefits of a corresponding provi- sion in section 1407, Revised Statutes, as amended. (24 Op. Atty. Gen., 579.) See United States v. Freeman (3 How., 556), noted under section 1604, Revised Statutes, under "Brev^et pay and emoluments," which held that the words "officers of the Army" in an act of April 16, 1818, included officers of the Marine Corps; see also note to section 1622, Revised Statutes, as to retirement of officers for Civil War service. which it was intended to accomplish, as indi- cated not only by the language used in the statute but by other recognized aids to inter- pretation. (File 5252-66, May 13, 1915; 28687-5, Aug. 29, 1916.) It does not follow from the decisions holding that the word "Navn,'" includes the Maiine Corps that Congi-ess can not enact any law with reference to the Navy which does not, ipso fure, include the Marine Corps. On the contrary, the Navy Department fully recognizes the fact that many laws relating to the Navy are not intended to include the Marine Corps, and that the question is largely one of intent. (File 28687-5, Aug. 29, 1916.) In nearly all cases where Congress intends to legislate v\ith reference to the Marine Corps it designates it especially, ev^en in cases where it might properly be held to be included by the term "Navy," as, for example, in the pension laws, and the laws establishing hospitals for the Navy-; which shows that Congi-ess has not al- ways regarded the teiTQ Navy^ as a sufficiently clear designation for the Marine Corps. (19 Op. Atty. Gen., 616, 620.) The literal sense of the law is not necessaiily its true sense; for if, by taking the law by its four corners, or by looking at it in the Ught of the circumstances in which it was passed, or by doing both, it appears that its meaning should be restricted or enlarged in order to cany out the intention of the legislatm'e, it is the duty of the ex])ounder to Umit or amplify that meaning as the case may requii'e. (i9 Op. Atty. Gen., 616, 618.) In view of the pecuhar and ii'regular position of the Marine Corps in the public service, it is not at all surprising that instances occur where legislation in terms confined to the Army and Navy has been held to include the officers and men of the Maiine Corps. (19 Op. Attv. Gen., 616, 619.) It is quite safe to say that, in the absence of language or attendant cii'cmnstances indicating different intention, the term in a statute, "officers of the Navy," would not include officers of the Marine Corps, and "enlisted men fthe Navy " would not include enlisted men of the Marine Corps. (27 Op. Atty. Gen., 90.) Army laws held inapplicable to Marine Corps. — Section 1117, Revised Statutes, pro- hibiting enlistment of any person under 21 years in the military service of the United States, without the written consent of his parents or guardians, apphes only to enUst- ments in the Army, and does not include the Marine Corps. (In re Dovle, 18 Feb. Rep., 369; see note to sec. 1418, 'R. S.) Sections 130.5-1308, Revised Statutes, which provide for the deposit \\ith any Army paymas- ter by any enlisted man of the Army of his savings, have no application to the Marine Corps; and the enlisted men of that corps Sec. 1622. [Retirement.] The commissioned officers of the Marine Corps shall be retired in like cases, in the same manner, and with the same relative conditions, in all respects, as are provided for officers of the Army, except as is otherwise provided in the next section. — (3 Aug., 1861, c. 42, ss. 15, 16, 17, v. 12, p. 289. 17 July, 1862, c. 200, s. 12, v. 12, p. 596. 21 Jan., 1870, c. 9, s. 963 Sec. 1622. Pt. 2. REVISED STATUTES. The Navy. 1, V. 10, p. G2. 15 July, 1870, c. 294, 419. s. 1, V. 17, p. 378.) ARMY LAWS APPLICABLE TO M.^RINE CORPS. Age or length of service. — "When an officer has served forty consecutive years as a com- missioned oflicer, he shall, if he makes applica- tion therefor to the President, be retired from active ser\-ice and placed upon the reth-ed list. When an officer has been thirty years in service, he may. upon his own application, in the discretion of the President, be so retired, and placed on the retired list." (Sec. 1243, R. S.) "When any officer has served forty-five years as a commissioned officer, or is sixty -two years old, he may be retired from active 8er%ice at the discretion of the President." (Sec. 1244, R. S.) "When an officer has served forty yeai's either as an officer or soldier in the regular or .volunteer serA-ice, or both, he shall, if he make application therefor to the President, be re- tired from active serAice and placed on the retired Hst, and, when an officer is sixty-foiu- years of age, he shall lie retired from active service and placed on the retii'ed list. " (Act June 80, 1882, 22 Stat.. 118.) Nothing contained in the act of June 30, 1882 (above quoted), "shall be so construed as to prevent, limit, or restrict retirements from active ser^ice in the Army, as authorized by law in force at the date of the approval of said act, retirements under the proAisions of.said act of June thirtieth, eighteen hundred and eighty-two. being in addition to those theretofore authorized by law." (Act Mar. 3, 1883, 22 Stat., 457.) "That hereafter no officer holding a rank above that of colonel shall be retired except for disabihty or on account of having reached the age of sixty-four years until he shall have served at least" one year in such rank. " (Act June 12, 1906. 34 Stat.. 245.) "In the case of officers of the Regular Army, in determining rights of retirement, active duty performed while under appointment from the United States Government, whether in the regular, proA-isional, or temporary forces, shall be credited to the same extent as service under a Regular Army commission." (Act June 4, 1920, sec. 51, 41 Stat.. 785, amending act June 3, 1916, sec. 127. 39 Stat., 217. See also note to sec. 1600, R. S.) Disability. — "WTien any officer has become incajpable of performing the duties of his office, he shall be either retired from active serAT.ce, or wholly retired from the ser\-ice, by the Presi- dent, as hereinafter proWded." (Sec. 1245, R. S.) Composition of hoard. — "The Secretary of War, under the direction of the President, shall, from time to time, assemble an Army retiring board, consisting of not more than nine nor less than five officers, two-fifths of whom shall be selected from the Medical Corps. The board, excepting the officers selected from the Med- ical Corps, shall be composed, as far as may be, of seniors in rank to the officer whose disabihty is inquired of." (Sec. 1246, R, S.) See section 1623, ReAised Statutes, as to composition of retiring board in the cases of s. 4, Y. 16, p. 317. 10 June, 1872, c. Marine officers. See also act of ^^arch 4, 1916 (39 Stat., 1171), noted below, under "Laws relating specifically to Marine Corps," as to retiring boards on foreign stations. Oath of members. — "The members of said board shall be sworn in every case to discharge their duties honestly and impartially." (Sec. 1247, R. S.) Powers and duties. — "A retiring board rnay inquire into and determine the facts touching the nature and occasion of the disability of any officer who appears to be incapable of perform- ing the duties of his office, and shall have such powers of a court-martial and of a court of in- quiry as may be necessary for that pm'pose." (Sec. 1248, R. S.) Findings. — "T\Tien the board finds an officer incapacitated for active ser\ice, it shall also find and report the cause which, in its judgment, has produced his incapacity, and whether such cause is an incident of service." (Sec. 1249, R. S.) Revision by the President. — "The proceed- ings and decision of the board shall be trans- mitted to the Secretary of War, and shall be laid by him before the President for his aproval or disapproval and orders in the case." (Sec. 1250, R. S.) See act of June 8, 1880 (21 Stat., 164), noted below under "Laws relating specifically to Marine Corps," as to re\-ision of retiring boards by the Judge Advocate General. 'Disability incident to service.— "When a. retiring board finds that an officer is incapaci- tated for acti\-e serAice, and that his incapacitv is the result of an incident of service, and such decision is approved by the President, said officer shall be retired from active serAT.ce and placed on the hst of retired officers." (Sec. 1251, R. S.) Disability not incident to service. — "When the board finds that an officer is incapacitated for active service, and that his incapacity is not the result of any incident of service, and its de- cision is approved by the President, the officer shall be retired from" active ser\Tce, or wholly retired from the service, as the President may determine. The names of officers wholly retired from the service shall be omitted from the Army Register." (Sec. 1252, R. S.) Officers entitled to hearing. — "Except in cases where an officer may be retired by the President upon his own application, or by reason of his haATUg served forty-five years, or of his being sixty-two years old, no o"fficer shall be retired froni active serAdce, nor shall an officer, in any case, be whoUv retired from the service, -vNTthout a full and fair" hearing before an Army retiring board, if, upon due summons, he demands it." (Sec. 12.53, R. S.) Retired rank. — "Officers hereafter retired fi-om active serATce shall be retired upon the actual rank held bv them at the date of retire- ment." (Sec. 12-54, R. S.) See laws noted below, under "Laws relating specifically to Marine Corps," as to retirement of officers with higher rank than that held on the active list. 964 The Navy. Ft. 2. REVISED STATUTES. Sec. 1622. By act of October 1, 1890, sec. 3 (26 Stat., 563), relating to examinations for promotion of ojfficers of the Army below the rank of major, it was pro^dded "that should the officer fail in his physical examination, and be found inca- pacitated for serAdce by reason of physical dis- ability contracted in line of duty he shall be retired mth the rank to which liis seniority entitled him to be promoted." By act of June 3, 1916, section 24 (39 Stat., 183), exist- ing laws requiring examinations of officers of the Army prior to promotion were extended "to include promotions to all gi'ades below that of brigadier general." By act of June 4, 1920 (41 Stat., 774), existing laws pro\'iding for the examination of officers of the Army for promo- tion were repealed, "except those relating to physical examination, which shall continue to be required for promotion to all grades be- low that of brigadier general * * *." (See laws and decisions noted under section 1599, R. S., as to qualifications for promotion. See also sees. 1493 and 1494, R. S., and notes thereto.) "Any officer now holding office in any corps or department who shall hereafter serve as chief of a staff corps or department and shall subsequently be retired, shall be retired with the rank, pay, and allowances authorized by law for the retired of such corps or department chief." (Act Feb. 2, 1901, sec. 26, 31 Stat., 755.) "Any officer who shall have served four years as chief of a branch, and who may subse- quently be retired, shall be retired v.'ith the rank, pay, and allowances authorized by law for the grade held by him as such chief." (Act Jime 4, 1920, 41 Stat., 762, sec. 4, amend- ing act June 3, 1916, sec. 4, 39 Stat., 167.) Retired pay. — "Officers retired from active ser\-ice shall receive seventy-five per centum of the pay of the rank upon which they are re- tired." (Sec. 1274, R. S.) "Officers wholly retired from the service, shall be entitled to receive, upon their retire- ment, one year's pay and allowances of the highest rank held by them, whether by staff or regimental commission, at the time of their retirement." (Sec. 1275, R. S.) "That hereafter, except in case of officers re- tired on account of wounds received in battle, no officer now on the retired list shall be allowed or paid any further increase of longevity pay, and officers hereafter retired, except as "herein provided, shall not be allowed or paid any further increase of longe-vity pay above that which has accrued at the date of their retire- ment." (Act Mar. 2, 1903, 32 Stat., 932.) "That hereafter any retired officer of the Army who has been detailed to active duty, and who has since his retirement, served on active detaU shall be entitled to increases of longe\'ity pay, to be computed as pro\dded by existing statute for the computation of longevity pay, for the time of his ser\'ice before retii'ement and on active detail since his retirement." (Act May 12, 1917, 40 Stat., 48.) "That hereafter any retired officer who has been or shall be detailed on active duty, shall receive the rank, pay, and allowances of the gi'ade, not above that of major, that he would have attiiined in due course of promotion if he had remained on the active list for a period be- yond the date of his retirement equal to the total amoimt of time during which he has been detailed on active duty since his retirement." (Act June 3, 1916, 39 Stat., 183, sec. 24, re- pealed by act Jime 4, 1920, sec. 24, 41 Stat., 771.) "Hereafter any retired officer who has been or shall be detailed on active duty shall receive the rank, pay, and allowances of the grade, not above that of colonel, that he would have at- tained in due course of promotion if he had re- mained on the active list for a period beyond the date of his retirement equal to the total amoimt of time during which he has been detailed to active duty since his retirement." (Act June 4, 1920, sec. 61, 41 Stat., 786, amending act June • 3, 1916, sec. 127, 39 Stat., 217. See laws and decisions noted below, as to retired officers of the Marine Corps on active duty.) "Hereafter retired officers below the grade of brigadier general and retired waiTant officers and enhsted men shall, when on active duty, receive full pay and allowances." (Act Jime 4, 1920, sec. 33, 41 Stat., 777, amending act June 3, 1916, see. 40, 39 Stat., 191, 192.) "In time of war retired officers may be em- ployed on active duty in the discretion of the rresident, and when so employed they shall receive the full pay and allowances of their grades." (Act June 4, 1920, sec. 51, 41 Stat., 785, amending act June 3, 1916, sec. 127, 39 Stat., 217.) LAWS RELATING SPECIFICALLY CORPS. TO MARINE Civil ivar service. — "Officers of the Marine Corps with creditable records who served during the civil war shall, when retired, be retired in Like manner and under the same conditions as provided for officers of the Navy who served during the civil war. " (Act Apr. 27, 1904, 33 Stat., 349.) "Any officer of the Marine Corps below the grade, of brigadier-general who served with credit as an officer or as an enlisted man in the regular or volunteer forces during the ci\'il war prior to April ninth, eighteen hundred and sixty-five, otherwise than as a cadet, and whose name is borne on the official register of the Marine Corps, and who has heretofore been, or may hereafter be, retired on account of wounds or disability incident to the ser\-ice, or on account of age or after forty years' ser\ice, may, in the discretion of the President, by and with the advice and consent of the Senate, be placed on the retired list of the Marine Corps with the rank and retired pay of one grade above that actually held by him at the time of retirement: Provided, That this Act shall not apply to any officer who received an advance of grade since the date of his retirement or who has been restored to the Marine Corps and placed on the retired List by viitue of the pro- visions of a special Act of Congress. " (Act June 29, 1906, 34 Stat., 554.) Ncv) commissions. — "Commissioned officers of the Army, Navy, and Marine Corps on the retired list whose rank has been or shall here- after be advanced by operation of or in accord- ance with law shall be entitled to and shall receive commissions in accordance with such 965 Sec. 1622. PL 2. REVISED STATUTES. The Navy. advanced rank." (Act Mar. 1. 1911. 36 Stat., 1354.) Major General Commandant. — "Any officer appointed under the provisions of this Act who shall be retired from the position of command- ant of tlie Marine Corps, in accordance with the provisions of sections twelve hundred and fifty- one, sixteen hundred and twenty-two, and sixteen hundred and twenty-three. Revised Statutes of the United States, or by reason of age or length of service, shall have tlie rank and retired pay of a major general ; if retired for any other reason, he shall be placed on the retired list of officers of the grade to which he Itelonged at the time of his retirement. '' (Act Dec. 19, 1913, 38 Stat., 241, amended bv act Aug. 29, 1916, 39 Stat., 609.) Retirement of colonels. — "That the provisions of the Act entitled 'An Act making appropria- tions for the naval service for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes,' approved August twentyrninth, nineteen hundred and sixteen, which read as follows: * * * 'That officers of the Marine Corps with the rank of colonel who shall hav^e served faithfully for forty-five years on the active list shall, when retired, have the rank of brigadier general; and such officers who shall hereafter be retii'ed at the age of sixty-four years before having served for forty-five years, but who shall have served faith- fully on the active list until retired, shall, on the completion of forty years from their entry in the naval service, have the rank of brigadier general, ' are hereby repealed. " (Act May 22, 1917, sec. 14, 40 Stat., 87.) Revision of retiring board records. — "The office of the said judge advocate general shall be in the Navy Department, where he shall, under the direction of the Secretary of the Nav^, receive, revise, and have recorded the proceedings of all * * * boards for the examination of officers for retirement * * * in the naval service. " (Act June 8, 1880, 21 Stat., 164.) Retiring boards on foreign stations. — "That hereafter the Secretary of the Nav^y may author- ize the senior officer present, or other command- ing officer, on a foreign station to order * * * retiring boards for the examination of such candidates for * * * retirement in the Navy and ^Marine Corps as may be serving in such officer's command and may be directed to appear before any such board." (Act Mar. 4, 1917, 39 Stat., 1171.) Officers holding temporary rank. — "That any officer of the permanent Nav^y or Marine Corps, temporarily advanced in grade or rank in ac- cordance v\ith the provisions of this Act, who shall be retired from active service under his permanent commission while holding such temj)orary rank, except for physical disability incurred in line of duty, shall be placed on the retired list with the grade or rank to which his position in the permanent Navy or Marine Corps at the date of his retirement would entitle him, and any person originally appointed tem- porarily, as provided in this Act, shall not be entitled to any rights of retirement, except for physical disability incurred in line of duty." (Act May 22, 1917, sec, 9, 40 Stat., 86.) Retired officers on active duty. — "That here- after any retired officer of the naval service who shall be detailed on active duty shall, while so serving, receive the active-duty pay and allow- ances of the grade, not above that of lieutenant commander in the Navy or of major in the Marine Corps, that he would have attained in due course of promotion if he had remained on the active Ust for a period beyond the date of his retirement equal to the total amount of time during which he has been detailed on active duty since his retirement: Provided, That nothing herein shall be construed to reduce the pay of any retired officer on active duty whose retired pay exceeds the active-duty pay and allowances for the grade of lieutenant commander." (Act Aug. 29, 1916, 39 Stat., 581.) "That hereafter, during the existence of war or of a national emergency declared by the President to exist, any commissioned or war- rant officer of the Navy, Marine Corps, or Coast Guard of the United States on the retired list may, in the discretion of the Secretary of the Navy, be ordered to activ^e duty at sea or on shore; and any retired officer performing such active duty in time of war or national emergency, declared as aforesaid, shall be entitled to promotion on the retired list to the grade or rank, not abov^e that of lieutenant commander in the Navj^ or major in the Marine Corps or captain in the Coast Guard, and shall thereafter receive the pay and allowances thereof which his total active service as an officer both prior and subsequent to retirement, in the manner rendered by him, would have enabled him to attain in due course of pi emo- tion had such service been rendered continu- ously on the active list during the period of tinie last past." (Act July 1,^1918, 40 Stat., 717.) "That during the existence of war or of a national emergency, declared as aforesaid, any commissioned or warrant officer of the Navy, Marine Corps, or Coast Guard of the United States on the retired list, while on active duty, may be temporarily advanced to and commis- sioned in such liigher grade or rank on the retired list, not above that of lieutenant com- mander in the Navy or major in the ]\Iarine Corps or captain in the Coast Guard, as the President may determine, and any officer so advanced shall, while on active duty, be enti- tled to the same pay and allowances as officers of like grade or rank on the active list: Provided, That any such commissioned or warrant officer who has been so temporarily advanced in grade or rank shall, upon his relief from activ^e duty, or in any case not later than six months after the termination of the war or of the national emergency, declared as aforesaid, revert to the grade or rank on the retired list and to the pay and allowance status which he would have held had he not been so temporarily advanced: Provided further, That nothing in this Act shall operate to reduce the pay and allowances now allowed by law to retired officers." (Act July 1, 1918, 40 Stat., 717.) As to details to educational institutions, see section 1225, Revised Statutes, and laws and decisions noted thereunder. 966 The Navy. PL 2. REVISED STATUTES. Sec. 1622. Retired enlisted men. — "That when an enlisted man shall have served thirty years either in the Army, Navy, or Marine Corps, or in all, he shall, upon making appUcation to the President, be placed upon the retired list, with seventy-five per centum of the pay and allowances he may then be in receipt of, and that said allowances shall be as follows: Nine dollars and fifty cents per month in lieu of rations and clothing and six dollars and twenty-five cents per month in lieu of quarters, fuel, and light: Provided, That in computing the necessary thirty years' time all service in the Army, Navy, and Marine Corps shall be credited." (Act Mar. 2, 1907, 34 Stat., 1217. By act of Mar. 3, 1899, sec. 17, 30 Stat., 1008, service in the Civil or Spanish- American War was to be credited as double time in computing the 30 years necessary for retirement of enlisted men, and applicants for retirement thereunder were required to be at least 50 years of age unless physically disquali- fied for ser\dce.) "The Secretary of the Navy is authorized in time of war or when a national emergency exists to call any enlisted man on the retired list into active service for such duty as he may be able to perform. While so employed such enlisted men shall receive the same pay and allowances they were recei\ing when placed on the retired list." (Act Aug. 29, 1916, 39 Stat., 591, super- seding similar pro\ision in act Mar. 3, 1915, 38 Stat., 941.) "That any enlisted man of the Navy or Ma- rine Corps upon the retired list who has been ordered into active ser\ice since April sixth, nineteen hundred and seventeen, or who may hereafter be ordered into active service, shall be eUgible for promotion and he shall be entitled to the pay and benefits of continuous service of such rank and for such length of time as he is or has been employed in active service, and when relieved of active service shall retain upon the retired list the rank and service held by him at the time of such reUef , with the pay and allow- ances of such rank on the retired hst; and the accoimting officers of the Treasury are hereby directed to allow in the accounts of any enlisted man of the Navy or Marine Corps who resigned from the rethed Ust in order to reenhst for ap- pointment in a higher grade the same continu- ous service pay and the benefits of such rank to which he may have been appointed upon reen- ■ listment, as if his service had been continuous, and any difference in pay from the date of reen- listment shaU be credited to his accoimt." (Act July 1, 1918, 40 Stat., 719.) "Thatsomuchof the Actof July 1, 1918 (Pub- lic Numbered 182), as authorizes the promotion of retired enlisted men of the Navy and Marine Corps ordered to active duty shall not be so construed as to make illegal promotions of such men as have heretofore been made to warrant grades or as to deprive them of any of the pay, allowances, or other benefits accruing under such promotion." (Act July 11, 1919, 41 Stat., 153.) Construction of section 1622 in general. — Section 1622, Revised Statutes, simply pro- vides for the conditions precedent to the retire- ment of an officer of the Marine Corps, but in no way changes the jurisdiction to which he is subject or the conditions under which he may be again placed on active duty. (Jonas v. IT. S., 50 Ct. Cls., 281.) These "conditions" unquestionably are con- ditions precedent to retiring, and not con- ditions subsequent. Section 1622 is simply a pro^-ision that a commissioned officer of the Marine Corjjs is entitled to the same right of retirement as an officer of the Army. When so retired, he is a retired officer of the Maiine Corps, subject to the laws and regulations es- tablished for the government of the Navy. (Jonas V. U. S., 50 Ct. Cls., 281.) It will be observed that while section 1622 refers to the retirement of officers of the Marine Corps and entitles them to the benefit of all laws relating to the retirement of officers of the Army, the pro\'ision in the act of April 23, 1904 (33 Stat., 259, 264), relating to advance- ment of Army officers on the retired List who had Civil War service, refers to what may be done in the discretion of the President, by and with the advice and consent of the Senate, for the benefit of certain officers of the Army after their retirement is an accompUshed fact, whether theretofore or thereafter retired. In other words, the provision is not a law in refer- ence to the retirement of officers of the Army, but an act authorizing special benefits to cer- tain officers of the Army who have been or may be retired. (25 Op. Atty. Gen., 262.) The conditions mentioned in section 1622 are unquestionably conditions precedent to retire- ment, and not conditions subsequent; accord- ingly, held that the Army act of June 3, 1916, section 24, above quoted, is not applicable to the Marine Corps, under section 1622, in so far as it affects the rank of retired officers who have performed or who may in the future perform the required amount of active duty. (File 26509-158 : 2, June 27, 1916.) It is well settled that the Marine Corps, while in many respects a separate and distinct organ- ization, is prunarily a part of the Navy. In the matter of retirement, however, as of pay, the Marine Corps has been classed with the Army (sees. 1612, 1622). The language of section 1622 is broad and sweeping, and as it is the only provision upon the subject of retirement it must be held to mean just what it says; in other words, officei's of the Marine Corps, in the matter of retirement, were placed by that sec- tion upon exactly the same footing as officers of the Army. (25 Op. Atty. Gen., 262.) Employment of retired oflicers on ac- tive duty. — ^\^len a marine officer was put upon the retired list he was subject to the or- ders of the Secretary of the Navy within the statutory conditions, and came within the provisions of the act of August 22, 1912 (37 Stat., 329), as to assignment of retired "naval" officers to active duty, and not the act of April 23, 1904 (33 Stat., 264), relating to assignment of retired officers of the Army to active duty. Each of these statutes contained provisions re- lating to the pay of retired officers assigned to active duty thereunder. Held, that the re- tired marine officer so assigned to active duty under the act of 1912, became entitled upon such assignment to the pay and allowances provided for in said act. (Jonas v. U. S., 50 Ct. Cls., 281.) 967 Sec. 1629. PL 2. REVISED STATUTES. The Navy. The act of June 7, 1900 (31 Stat., 703), au- thorized the assignment of "any naval oJHcer on the retired list" to active duty during a pe- riod of twelve years from its passage. During the life of tliis atatute the Secretary of the Navy detailed retired oflicers of the Marine Coi"ps to active duty, and his right to do so seems never to have been (lueslioned. And during the interim between the expiration of this statute by limitation and its substantial reenactment by the act of August 22, 1912 (37 Stat., 329), neither retired naval nor marine oflicers were employed on active duty. After the enactment of the latter statute, the Secre- tary of the Navy renewed the practice followed under the former statute. This substantial reenactment of the statute by I'ongress was in- dicative of legislative approval of the depart- mental construction of the same, as stated. (Jonas V. U. S., 50 Ct. Cls., 281.) Congress, by the act of June 3, 1916 (39 Stat., 183), gave to retired oflicers of the Army de- tailed on active duty the longe\'ity pay which would accrue to them by reason of their added active service after retirement, which pay they could not thereafter receive by reason of the act of March 2, 1903 (32 Stat. , 932\. The said act of June 3, 1916, applied to a retired officer of the Marine Corps on active duty so as to entitle him to increase in longevity pay, although he held the rank of major, and an Anny officer of the rank of major could not be advanced to a higher rank under said act. (Jonas v. U. S., 53 Ct. Cls., 254. See above, under "Construction of section 1622, in general." See also act of Aug. 29, 1916, quoted alcove, with respect to retired officers of the Marine Corps on active duty.) Rank on retirement. — The Anny law (sec. 1254, R. S.), providing that "officers hereafter retired from active service shall be retired upon the actual rank held by them at the date of re- tirement," is applicable to the Marine Corps. A captain in that corps, holding the office of Judge Advocate General of the Navy with the rank, pay, and allowances of a colonel while so serving, was in law and in fact a colonel in the Marine Corps while holding said office of Judge Advocate General, and was entitled to be re- tired as such; and under section 1274, R. S., was entitled to receive 75 per centum of the pay of colonel. Under the act of June 8, 1880 (21 Stat., 164), the rank of a Judge Advocate General of the Navy is not assimilated but ac- tual rank. (Remey v. U. S., 33 Ct. Cls., 218. See note to sec. 421, R. S., as to retirement of chiefs of bureaus.) Rank on retirement for Civil War serv- ice.— See note above, imder "Construction of section 1622, in general." Section 11 of the act of March 3, 1899 (30 Stat., 1007), which fixes the rank and pay of retired officers of the Navy who served with credit during the Civil War, held not applicable to officers of the Marine Corps. (24 Op. Atty. Gen., 709.) The said act of March 3, 1899, was evidently drafted •with care, and with a clear understand- ing of the distinctions between the Navy and the Marine Corps. The first seventeen sections, in definite terms, apply to the Navy; then follow the sections which with equal exactness apply to the Marine Corps. These two arms of the service are recognized and treated through- out the entire statute as separate and distinct, and for each of them appropriate provision is made. The unambiguous language of section 11 makes it apply only to officers of the Navy, and there is nothing ^\ithin the entire act wliich in any way indicates that any officer not in the Navy was intended to be inc luded witliin the provisions of said section. The mere fact that one set of officers, not mentioned, are as meiitorious as those expressly provided for can not justify a construction Uberal enough to give to the former benefits granted in clear terms only to the latter. (24 "Op. Atty. Gen., 709, June 26, 1903.) In the matter of retirement, officers of the Marine Corps with creditable records who served during the Civil War are governed en- tirely by the act of April 27, 1904 (33 Stat., 324, 349), which provides that they shall be retired "in like manner and under the same conditions as provided for officers of the Navy who served during the Civil War." To this extent that act alters and amends section 1622, Revised Statutes. (25 Op. Attv. Gen., 262.) By act of April 23, 1904 (33 Stat., 259, 264), provision was made for the advancement on the retired list of Armv officers who served dur- ing the Civil War. By act of April 27, 1904 (3.3 Stat., 324, 349), passed four days later, spe- cial provision was made for the retirement of officers of the Marine Corps who served during the Civil War, in accordance \\ith Navy laws. Held, that the Army act of April_ 23, 1904, has no application by virtue of section 1622, Re- vised Statutes, to officers of the Marine Corps who served during the Civil War. (25 Op. Atty. Gen., 262.) That Congress never intended the Army act of April 23, 1904, to apply to the Marine Corps is showTi by its incorporation in the Navy act, passed four days later, of a provision specifically dealing with the retirement of officers of the Marine Corps with creditable records who served during the Civil War. This practically contemporaneous legislative interpretation of the former act must be held to be conclusive. (25 Op. Atty. Gen., 262.) Retirement for disability not incident to the service. — A board of officers duly con- stituted was convened by order of the Secre- tary of the Navy July 30, 1874, to inquire into _ and determine whether a lieutenant of ma- ' rines was incapacitated for active service. The board found him so incapacitated, and that the cause of his incapacity was not an incident of the ser\ice. The President, August 18, 1874, endorsed on the proceedings and findings of the board: "I concur in opinion with the retiring board in the case of * * *. Let him be re- tired on furlough pay." Held, first, that the action of the President amounted to an approval of the finding of the board and to a retirement of the officer from active service within section 1252, Revised Statutes, and that he was retired in conformity with the law applicable to officers of the Marine Corps; and second, that, the officer thereby became entitled to receive pay according to the rates established by law for retired officers of the Army, viz, 75 per centum of the pay of the actual rank held by him at the date of retirement, notwithstanding 968 The Navy. Ft. 2. REVISED STATUTES. Sec. 1622. a different rate of pay, viz, furlough pay, was named bv the President in retiring him. (15 Op. Atty. Gen., 442.) For officers of the Marine Corps who are re- tired from acti\'e ser\"ice, as for officers of the Army who are so retired, there is but one rate of pay estabhshed by law, \'iz, 75 per centum of the pay of the rank upon which they are re- tired (sec. 1274, R. S.); and it is not competent to the President to place these retired officers on a different rate of pay than that which the law has fixed. (15 Op. Atty. Gen., 442.) The first sentence of the endorsement of the President upon the record of the proceedings of the board (above quoted) admits of no other construction than that it was meant to express his approval of the finding of the board. Having thus approved the finding, it rested entii'ely in his discretion whether the officer should be retired from active sei-vice or be wholly retired fi'om the ser^ice (sec. 1252, R. S.); but it was necessary that one or the other be done, as the law is imperative that when the decision of the board is approved by the President the officer "shall be retired," etc. The direction given in the last sentence of the endorsement clearly indicates that it was the determination of the President that the officer be retii-ed from "active ser\T.ce" simply. The compensation of an officer thus retired being fixed by statute and not left to be de- termined by the President, in so far as that direction limits the officer's pay on the retired list it must be treated as of no effect. (15 Op. Atty. Gen., 442.) Sections 1454 and 1593 Revised Statutes, as to the retirement of naval officers on fm- lough pay for disabihty not incident to the serv- ice, do not apply to officers of the Marine Corps, for that corps different legislation is pro\T.ded. (15 Op. Atty. Gen., 442. See sees. 1454 and 159.3, R. S., and notes thereto.) Retirement for length of service. — The act of June 30, 1882 (22 Stat., 118^, referring to the retirement of officers of the Army who have served 40 years "in the regular or A-olunteer service, or both, " was intended by the use of the words, "volunteer ser\ice, " to refer to the volunteer ser\-ice in the Civil War, and did not intend to anticipate a new volunteer sei-v- ice such as that authorized under the act of April 22, 1898. (22 Op. Atty. Gen., 199.) Under the Army reorganization act of June 4, 1920 (41 Stat., 761), the ser\ice wliich by existing law is held to be the equivalent of Army service in counting length of ser\ice for increase of pay or for retirement is service in the Marine Corps and ser\T.ce in the Navy. (27 Comp. Dec, 170, citing acts of Feb. 24, 1881, 21 Stat., 346; Sept. 30, 1890, 26 Stat., '504; and June 22, 1906 and Mar. 2, 1907, 34 Stat., 451 and 1217.) Retirement for age. — The Army act of June 30, 1882 (22 Stat., 118), relative to retire- ment, applies to an officer of the regular Ai-my who is 64 years of age, temporarily serving under a volunteer commission, but his retire- ment thereunder does not affect his status in the volunteer service. (22 Op. Atty. Gen., 199.) The said act of June 30. 1882, does not ap- ply to a volunteer officer who is 64 years of age and who does not at the same time hold a commission in the regular Army. (22 Op. Atty. Gen., 199.) An officer of the regular Army who at the same time holds a commission in the volunteer Army may continue to hold and exercise his latter commission after ha\T.ng been placed upon the retired list of the regular Army by reason of the age limit. _ (22 Op. Atty. Gen. , 199 . ) The Army retired lists apply to the regular Army alone, with due credit given for the time of volunteer serA-ice of oflicers of the regular Army in the Civil War. (22 Op. Atty. Gen., 199.) Status of retired officer. — An officer of the Marine Corps retii-ed from active seindce only, and not wholly retired fi'om service, is an officer in the employ of the Government and so within the prohibition of section 1782 of the Revised Statutes prohibiting compensa- tion to "any officer or clerk in the employ of the Government" for rendeiing ser\ices in relation to any claim or other matter in which the United States is a party, before any depart- ment, court-martial, bureau, officer, or any civil, military, or naval commission. (29 Op. Attv. Gen., 397.) In determining the status of a retired ofiicer of the Marine Corps, as to whether or not he is an officer of the Government, the Marine Corps must, under section 1622, Revised Statutes, be considered as part of the Army. (29 Op. Atty. Gen., 397, 400.) Retired enlisted men. — Officers on the retired list are a part of the Army; they may be assigned to duty and wear the uniform and con- tinue to be borne on the Army Register, and are subject to trial by coiu"t-martial; enlisted men after retirement are not a part of the Armv. (Murphy v. U. S., .38 Ct. Cls., 511.) _ Section 1094, Revised Statutes, in express terms declares that "the officers of the Army on the retired Ust" are a part of the Army. By act of March 2, 1899, section 7 (30 Stat., 979), the President was authorized to employ retired officers of the Army on active duty in time of war. This act is a recognition by Con- gi'ess that, though retii-ed officers of the Army were in express terms declared to be a part of the Army, they were not theretofore subject to active military duty. There are no such laws A\ith respect to enlisted men on the re- tired list. There is no statute declaring them to be a part of the Anny, nor is there any statute subjecting them to military duty. When he is retired, an enlisted man thereby sexeTs his connection with the Army to go on the retii-ed Ust, and can not thereafter be said to be a component jjart of the Army. (Miirphv V. U. S., 38 Ct. Cls., 611.) It is no answer to say that enlisted men on the rethed Ust are a part of the Army because subject to court-martial; if that were true, which the court does not concede, they never- theless could not be assigned to military duty. Their retired pay is d.ven them, not for services to be rendered in the future, but for services which they haAe faithfully rendered prior to their retirement. (Mui'phv v. U. S., 38 Ct. Cls., 511.) On reconsideration, the decision affirmed that retired enUsted men are not entitled to 969 Sec. 1623. PL 2. REVISED STATUTES. The Navy. the additional pay for length of service given by section 1284, Revised .Statutes, because they do not "remain continuously in the Army" within the intent of the statute; not- withstanding the existence of statutes (over- looked in the former decision) wherein it is expressly provided that "the Army of the United States shall consist of * * * the ofhcers and enlisted men of the Army on the retired list." Under these statutes the Army consists in jxirt of enlisted men on the retired list, and to that extent, therefore, the court ■was in error in certain statements contained in the previous decision. But those acts do not make enlisted men on the retired list a part of the organization of the Army, subject to mili- tary duty as enlisted men on the active list; on the contrary, it is conceded that such re- tired enlisted men are not subject to military duty, even at the command of the President. If not subject to military duty, then in what way and for what purpose can it be said that enlisted men on the retired list are a part of the Armv? (Murphy v. U. S., 39 Ct. Cls., 178.) Retired enlisted men en route to their homes after retii-ement are not "troops of the United States'' (as used in the land grant acts relating to transportation for the Government). They travel for their own purposes. Congress has declared that such retired enlisted men shall for certain purjioses be deemed a part of the Army (act Feb. 2, 1901, 31 Stat., 748); but they may be employed only after Congress has authorized the raising of volunteer forces; and not even then for field duty (act Apr. 2.5, 1914, sec. 11, 38 Stat., 347, 3-50). TheArmy Regu- lations for 1913 make no provision requiring any service from retired enlisted men. Prac- tically they have retired from, and not simply into, a different branch of, the Army. The fact that they may thereafter be called into the Army does not make them "troops of the United States." Any male citizen may at some time be called into the service. (U. S. V. Union Pac. R. Co., 249 U. S., 354, 360, affirming 52 Ct. Cls., 226.) There is no statute specifically providing that retired enlisted men shall constitute a part of the Navy or that retired enlisted men of the Navy shall be amenable to trial by naval court- martial, although it is provided by statute that retired officers of the Navy shall be amenable to trial l)v court-martial. (File 26251-22500, Mar. 9, 192<).) Under present laws it is very doubtful whether an enlisted man on the retired list of the Navy, who is not employed on active duty, is subject to trial by naval court-martial. However, a trial having taken place in such a case, and the accused acquitted, the proceed- ings, findings, and acquittal were approved, in- stead of being set aside for lack of jurisdiction, as the latter action would have exposed the accused to trial by the civil authorities of the United States for the same offense. (File 26251-22500, Mar. 9, 1920.) As to retired pay of enlisted men in the Ma- rine Band, see note to section 1613, Revised Statutes. The provision in the act of July 1, 1918, relat- ing to promotion of retired enlisted men of the Navy and Marine Corps ordered into active service (quoted above under this section), authorizes the promotion of such retired en- listed men to higher enlisted ranks and ratings on the retired list; and does not authorize the appointment of retired enlisted men to warrant or commissioned rank either on the active or retired lists. (File 7657-634:1, Aug. 30, 1918, citing 7857-834, Aug. 12, 1918.) It is lawful to appoint retired enlisted men as temporary warrant and temporary commis- sioned officers on the active list, under the act of May 22, 1917 (40 Stat., 84). File 7657-634:1, Aug. 30, 1918, citing 27321-103, July 17, 1917.) There is no doubt that retired enlisted men may be permanently appointed as warrant or commissioned officers on the active List, if prop- erly qualified. (File 7657-634:1, Aug. 30, 1918.) If appointed a temporary commissioned or warrant officer on the active list under the act of May 22, 1917, on the termination of such ap- pointment a retired enlisted man would revert to the rating held by him on the retired list at the time of his appointment. If appointed a permanent commissioned or warrant officer on the active list, he would not revert, nor should he be relieved from active duty, as such an ap- pointment takes him off the retired list and destroys his status as an enlisted man. (File 7657-634:1, Aug. 30, 1918.) Retirement of Major General Conunand- ant. — See note to section 1601, Revised Statutes. Sec. 1623. [Retiring board, how composed.] In case of an officer of the Ma- rine Corps, the retiring board shall be selected by the Secretary of the Navy, under the direction of the President. Two-fifths of the board shall be selected from the Medical Corps of the Navy, and the remainder shall be selected from officers of the Marine Corps, senior in rank, so far as may be, to the officer whose disability is to be inquired of. — (3 Aug., 1861, c. 42, s. 17, v. 12, p. 289.) See note to section 1622, Revised Statutes, and particularly section 1246, R. S., noted thereunder, as to composition of Army retiring boards. Membersliip of retiring board. — The act of August 3, 1861 (sec. 1623, R. S.), does not authorize the Secretary of War or the Secretary of the Navy to assemble a mixed board of Army and Marine officers for inquiry into the cases of disabled officers of the Armv and of the Marine Corps. (10 Op. Atty. Gen.] 116.) The act of August 3, 1861, providing for the better organization of the Military Establish- ment, authorized the creation of boards to de- termine the disabilities of officers of the Army and Marine Corps. Section 16 provided that 970 The Navy. PL 2. REVISED STATUTES. Sec. 1623. if any commissioned officer of the Ai'my or ^^arine Corps shall become incapable of per- forming the duties of his office, he shall be placed upon the retired list, etc.; section 17 enacted that in order to carry out the provisions of the act the Secretary of War or Secretary of the Navy, as the case might be, under the direction and appro^'al of the President of the United States, shall, from time to time as occasion may requii-e, assemble a board of not more than nine nor less than five commissioned officers, two- fifths of whom shall be of the medical staff; the board, except those taken from the medical staff, to be composed, as far as may be, of his seniors in rank. Held, that the intent of the act was to cause disabled officers to be retired by a board composed of commissioned officers of their owti branch of the ser\T.ce; that it author- ized no joint action of the Secretary of War and Secretary of the Navy in forming a retiring board ; nor did it give either Secretary the power to convene a mixed board composed in part of officers not under his control. (10 Op. Atty. Gen., 116.) An officer of one branch of the service can not with accm'acy be called senior in rank to an offi- cer of another branch; a major in the Army is no more senior to a captain of marines than he is to a captain in the NaA-y. The term in its mili- tary sense is applicable only to relatively higher grades of the same service. Its use oth- erwise would create confusion. (10 Op. Atty. Gen., 116.) Under the act of August 3, 1861, section 17, for the better organization of the Military Es- tabhshment, the Secretary of the Na\'y has discretionary power to select for the retirement of officers of the Marine Corps such commis- sioned officers subject to Ms control and orders as he may deem proper. (10 Op. Atty. Gen., 129.) The act of August 3, 1861, section 17, author- izing the Secretary of the Navy to assemble boards for the retii'ement of marine officers, does not provide that the board shall consist of officers of that corps, but simply that it shall consist of commissioned officers. That the sec- tion did not contemplate a board composed ex- clusively of marine officers is clear, because it provides that two-fifths of the board shall be of the medical .staff; and there being no medical staff attached to the Marine Corps this require- ment of the statute could only be fulfilled by placing on the board naval surgeons. (10 Op. Atty. Gen., 129, 130.) There being no provision in the law which directs the Secretary of the Navy to organize these boards for the retirement of marine officers from the officers of the Marine Corps, and this being a law for the government of the Navy ■within the meaning of the act of 1834 (sec. 1621, R. S.), held that the Secretaiy of the Navy, under the President, has full power to organize boards for the retirement of marine officers of the Navy of senior rank, under section 17 of said act of August 3 , 1861 . ( 10 Op . Atty . Gen . , 129, 130.) Retiring board illegally constituted. — The proceedings of a board constituted without authority and in \T.olation of the act of August 3, 1861, section 17 (embodied in sec. 1623, R. S.), would be open to future question as to their validity. (10 Op. Atty. Gen., 116.) The action of a retiring board can only be valid as it accords with the law of its creation. From that law alone it must draw the breath of life. If, therefore, it is constituted without the direct authority of that law, or in \'iolation of its proA-isions. the A'alidity of its action would be open to very serious future question. (10 Op. Atty. Gen.* 116, 119.) 54641= -90_ -62 971 CHAPTER TEN. ARTICLES FOR THE GOVERNMENT OF THE NAVY. [For decisions of the Navy Department construing and applying the Articles fob THE Government of the Navy, see Naval Digest, 1916, and supplements thereto.] Sec. 1624. Persons amenable to articles. Art. 1. 2. 3. 4. Commander's duty of example and cor- rection. Divine serxace. Irreverent behavior. Offenses punishable by death. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. Mutiny. Disobedience of orders. Striking superior officer. Intercourse with an enemy. Messages from an enemy. Desertion in time of war. Deserting trust. Sleeping on watch. Leaving station. Willfulstranding or injury of vessel. Unlawful destruction of public prop- erty. Striking flag or treacherously yield- ing. Cowardice in battle. Deserting duty in battle. Neglecting orders to prepare for battle. Neglecting to clear for action. Neglecting to join on signal for battle. Failing to encourage the men to fight. Failing to seek encounter. Failing to afford relief in battle. 16. 17. 18. 19. 20. 5. Spies, etc. 6. Murder. 7. Imprisonment in penitentiary'. 8. Offenses punishable at discretion of court- martial : Profanity, falsehood, etc. Cruelty. Quarreling. Fomenting quarrels. Duels. Contempt of superior officer. 7. Combinations against superior officer. 8. Mutinous words. Neglect of orders. Preventing destruction of public prop- erty. Negligent stranding. Negligence in convoy service. Recei\'ing articles for freight. False muster. Waste of public property, etc. Plundering on shore. Refusing to apprehend offenders. Refusing to receive prisoners. Absence from duty without leave. Violating general orders or regula- tions. Desertion in time of peace. 1. 2. 3. 4. 5. 6. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. Harboring deserters. Art. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. Reduction of officers to enlisted rating. Desertion by resignation. Dealing in supplies. Importing dutiable goods. Distilled spirits only as medical stores. Fraud against United States; embezzle- ment, etc. List of persons claiming prize-money. Removing property from prize. Maltreating persons on prize. Returning fugiti^•es from ser^dce. Enlisting deserters, minors, etc. Duties of commanding officers: 1. Men received on board. 2. List of officers, men, and passengers. 3. Deaths and desertions. 4. Property of deceased pereons. 5. Accounts of men received. 6. Accounts of men sent from the ship. 7. Inspection of pro\-isions. 8. Health of the crew. 9. Attendance at final payment of the crew. government of the offending 10. Articles for the Navy. Punishment for against this article Authority of officers after loss of vessel. Offenses not specified . Offenses committed on shore. Punishments by order of commander. Punishment by officer temporarily com- manding. Summary courts-martial; convening au- thority. Constitution of summary courts-martial. Oaths of members and recorder. Testimony before summary courts-martial. Punishments by summary courts. Disrating for incompetency. Execution of summary court sentence. Remission of summary court sentence. Proceedings and record of summary court. Same punishments by general court- martial . Dismissal of officers. Dismissed officer may demand trial. General com'ts - martial; convening au- thority. General courts; constitution of. Oaths of members and judge-advocate. Oath of witness. E\T.dence; witnesses; perjury; contempt. Charges and specifications; arrest of ac- cused. Duty of officer arrested. Proceedings of general courts-martial. Absence of members. Return of absent member; witnesses re- called. Suspension of pay. 972 The Navy. Pt. 2. REVISED STATUTES. Sec. 1624. Art. 49. Prohibited punishments. 50. Sentences, how determined. 51. Adequate punishment; recommendation to mercy. 52. Authentication of judgment. 53. Confirmation of sentence. 54. Remission and mitigation of sentence. 55. Courts of inquiry, by whom ordered. 56. Courts of inquiry, constitution of. Art. 57. Courts of inquiry, powers of. 58. Oaths of members and judge-advocate. 59. Rights of party inquired of. 60. Proceedings, how authenticated; use in other cases. 61. Limitation of trials ; general offenses. 62. Limitation of trials; desertion in time of peace. 63. Limitation of punishments; time of peace. Sec. 1624. [Persons amenable to articles.] The Navy of the United States shall be governed by the following articles. — (17 July, 1862, c. 204, s. 1, V. 12, p. 600.) General rule. — Everyone connected with the military or naval service of the United States is amenable to the jurisdiction which Congress has created for their government, and while thus serving surrenders his right to be tried by the civil courts. (In re Davison, 21 Fed. Rep., 618.) The discipline necessary to the efficiency of the Army and Navy required other and swifter modes of trial than are furnished by the common-law courts; and in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial and the manner in which they shall be conducted for offenses committed while the party is in the military or naval service. Everyone connected with those branches of the public service is amenable to the jurisdiction which Congress has created for their government, and while thus serving surrenders his right to be tried by the civil courts. All other persons, citizens of states where the courts are open, if charged with crime are guaranteed the inestimable privilege of trial by jury. (Ex parte Milligan, 4 Wall., 2, 123.) By the articles of war ' ' any person in the mili- tary service of the United States" may be tried by court-martial for the offenses described in those articles. But the words, ' ' in the military service" there used are not to be taken in «) general a sense as to include all who are em- ployed in connection with that service in any capacity whatever. They must be construed with the provision by which the articles are preceded, and which declares that the latter shall govern "the armies of the United States." So construed, they properly include only such as belong to and serve in the Army fixed by law. Hence, the question of the amenability of an individual to coui't-martial jurisdiction under the above-quoted provision is not to be determined according to the nature of his em- ployment; that is to say, whether it is military or not, but solely according to the circumstance of his belonging or not belonging to the military establishment as defined by law. (16 Op. Atty. Gen., 13, 16.) To have the effect of subjecting to trial by court-martial a person not otherwise subject to such jurisdiction an act of Congress ought to be clear and unambiguous. (14 Op. Atty. Gen., 268, 274.) In passing upon the question whether a clerk in the Army is subject to court-martial, it is proper to inquire at the outset whether he belongs to any of those classes of persons who are, by the terms of the statutes in force, made liable to military law, as the inclusion of an individual in some one of such classes is essen- tial to bring him under court-martial jurisdic- tion. (16 Op. Atty. Gen., 13, 14.) In every instance in which Congress has im- pressed a military character on any body of men whom they intended to divest of the civil right of a trial by jury, besides the impressment of a military character they have uniformly and expressly declared that they should be subject to the rules and articles of war. A course of legislation so long continued and so uniform marks the sacred respect in which Con- gress have ever regarded the right of trial by jury, and will justify us in assuming it as their sense that this right is never to be taken away by implication, never by the mere impressment of a military character on a body, never without a positive provision to that effect. (1 Op. Atty. Gen., 276.) Civilians. — ^The right to trial by jury is preserved to everyone accused of crime who is not attached to the Army or Navy, or militia in actual service. (Ex parte Milligan, 4 Wall., 2, 123.) A statutory provision that any person who shall contract to furnish suppUes of any kind or description in the Army or Navy shall be deemed and taken as a part of the land or naval forces of the United States for which he shall contract to furnish said supplies is uncon- stitutional in so far as it would operate to subject a contractor to trial by court-martial. Congress may, no doubt, under their power to raise armies, declare who shall be soldiers; that is, what citizens shall be liable to perform military duty, but they can not by mere enactment place a man in the Army who is not. If they could, then they might, by a simple declara- tion, place every person in the United States in the Army, no matter what his pursuits actually continued to be, and subject him to trial by court-martial; a proposition so mon- strous that it is believed no one would be found so hardy as to maintain it. (Ex parte Hender- son, 11 Fed. Cas. No. 6349; compare Hohnes V. Sheridan, 12 Fed. Cas. No. 6644; see also note to Art. 63, A. G. N., as to cruel and unusual punishments.) A quartermaster's clerk in the Army, that is, a civilian employed in that capacity, is not amenable to the jurisdiction of a court-martial; nor are superintendents of national ceme- teries, appointed under sections 4873 and 4874, Revised Statutes. (16 Op. Atty. Gen., 973 Sec. 1624. Pt. 2. REVISED STATUTES. The Navy. 13; see also, 16 Op. Atty. Gen., 48; compare decisions noted below as to paymasters' clerks in the Navy.) In this country military tribunals, whether courts-martial or milita^-y commissions, can not constitutionally be granted jurisdiction to try persons charged with acts or offenses com- mitted outside of the field of military opera- tions or territory under martial law or other peculiarly military territory, except members of the military or naval forces or those imme- diatelv attached to the forces, such as camp followers. (31 Op. Atty. Gen., 356, 361; com- pare note to art. 5, A. G. N.) Military jurisdiction is of t^vo kinds — first, that which is conferred and defined by statute; second, that which is derived from the com- mon law of war. Military offenses under the statute must be tried in the manner therein directed, but military offenses which do not come ■n-ithin the statute must be tried and punished under the common law of war. The first is exercised by courts-martial — while the latter are tried by military commissions. (Ex parte Vallandigham, 1 Wall., 243, 249.) The Supreme Court of the United States has no power to review by certiorari the pro- ceedings of a military commission ordered by a general officer of the United States Army commanding a military department. (Ex parte Vallandigham, 1 Wall., 243.) The clause in the Constitution providing that "the judicial power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish," refers only to courts of the United States, which military courts are not. (Mechanics, etc.. Bank v. Union Bank, 22 Wall., 276, 295.) A military commission is not a court \vithin the meaning of the Fourteenth section of the judiciary act of 1789. (Ex parte Vallandigham, 1 Wall., 243, 251.) The Constitution did not prohibit the cre- ation by military authority of courts for the trial of civil causes during the Civil War in conquered portions of the insurgent States. The establishment of such courts is but the exercise of the ordinary rights of conquest. Though called in the order establishing it a "provost court," a larger jurisdiction than one over minor criminal offenses might, in fact, have validly been given to it by the power which constituted it. (Mechanics, etc., Bank V. Union Bank, 22 Wall., 276, 296.) As to military commissions and their jurisdic- tion over ciWlians, see generally note to Con- stitution, Art. I, sec. 8, clause 11. Persons discharged from the Navy. — See article 14, A. G. N., and note thereto; and see notes to articles 61 and 62, A. G. N. Whether, when an officer while under charge of a military offense is dismissed from the serv- ice by the President, he may afterwards be arrested and tried by coui-t-martial for the offense, dubitatur. (8 Op. Atty. Gen., 328.) In this case the officer was placed under arrest on charges of breaking arrest, killing his commanding officer, and desertion. For the homicide involved in killing his commanding officer he had been indicted for murder, and tried and acquitted before a ci^'il court of the State. Afterwards he was dropped from the rolls for absence without leave. The ques- tion presented was whether a dismissed officer can be tried by court-martial for a military offense committed by him prior to his dis- missal. This question not decided, but re- marked that there is no express pro^ision in the statutes to settle the (juestion definitely, one way or the other; nor is there any authori- tative adjudication on the subject, at least in the United States; and that the case of a seaman whose enlistment expires while he is under charges is very different from that of an officer who in the same circumstances is dis- missed by the President. ("8 Op. Atty. Gen., 328.) Contingencies will undoubtedly arise in which it becomes desu^able to drop from the rolls a deserting officer in order to supply his place by promotion; where, still due regard to the principles of justice and the discipline of the 8er\dce unite to call for the exemplary punishment of the offender. Can it be in- flicted without authority of statute? That is the doubt. (8 Op. Atty. Gen., 328, 332.) Charges and specifications were preferred against an officer of the Navy who deserted, at the time of desertion, and sent to a permanent general court-martial for trial, where they were held pending apprehension of the deserter. Held, that the removal of said officer from the Navy by filling his place and grade by the appointment of a successor, with the advice and consent of the Senate, does not divest the jurisdiction of a naval court-martial to try him upon the charge which had been previously preferred; that the statute of limitations is not involved in the case, inasmuch as the charges and specifications were preferred by the Sec- retary of the Navy and sent to the general coiu-t- martial in ample time to assure his trial when- ever apprehended. (Naval Dig., 1916, p. 177, citing file 26251-6278, Aug. 17, 1915.) A charge of desertion was preferred against an officer of the Navy on May 31, 1912, and was tried by general court-martial April 9, 1917, the said officer having in the meantime been dropped from the Navy and superseded by the appointment of a successor by the President of the United States ^vith the advice and consent of the Senate. He was found guilty of the charge, the specification of which was "proved by plea"; and was sentenced "to be dismissed from the United States naval ser\'ice." The proceedings and findings were approved by the Secretary of the Navy, who set aside the sen- tence, o^\'ing to the fact that the officer's con- nection with the ser\'ice had alreadv been terminated. (C. M. O. 26, 1917.) A court-martial has no jurisdiction over an officer after he has left the ser^dce, although his offense was committed while in the service. (24 Op. Atty. Gen., 570; citing 5 Op. Attv. Gen., 55, 58.) A person discharged from the na^■al service before proceedings are instituted against him for violations of the Articles for the Government of the Navy, excepting article 14, can not thereafter be brought to trial before a court- martial for such violations, though committed while he was in the service. However, in view of the unsatisfactory state of the authorities, 9T4 The Navy. Pt. 2. REVISED STATUTES. Sec. 1624. and of the grave objections on principle to this conclusion, suggested that there is no reason why- jurisdiction should not be asserted by the Secretary of the Navy in such a case, in order to obtain, if possible, an authoritative judicial determination of the question. (31 Op. Atty. Gen., 521.) Article 14, paragraph 11, A. G. N., makes express provision for the trial of persons who have been discharged from the Navy; a proviso of somewhat similiar imjjort is inserted in article 62, fixing a period of limitation in cases of deser- tion, viz, "that said limitation shall not begin until the end of the term for which such person was enlisted in the service." These provi- sions, extending the jurisdiction after severance from the service in certain cases only, seem to indicate, on well-known principles of con- struction, that Congress did not intend so to extend the jurisdiction in other cases. (31 Op. Atty. Gen., 521, 527; compare notes to arts. 61 and 62, A. G. N.) An enlisted man of the Army furloughed for the unexpired portion of his enlistment, held, not thereby discharged from the Army. (In re Markun, 232 Fed. Rep., 1018.) Where jurisdiction attached prior to discharge. — The principle that where juris- diction has attached it can not be divested by mere subsequent change of status, has been applied as justifjdng the trial and sentence of an enlisted man after the expiration of the term of enlistment, and the execution of a sentence after the lapse of many years and the severance of all connection with the Army. (Carter v. McClaughry, 183 U. S., 365, 383; citing Barrett V. Hopkins, 7 Fed. Rep., 312; Coleman v. Tennessee, 97 U. S., 509; and 16 Op. Atty. Gen., 349.) It appears to be well settled that Avhere juris- diction has once attached it can not be divested by mere subsequent change of status; and this principle justifies the trial and sentence of a person out of the service, where jurisdiction has attached while he was in the service. (31 Op. Atty. Gen., 521, 528; citing Carter v. Mc- Claughrv, 183 U. S., 365, 383; Coleman v. Tenn., 97 U. S., 509; 16 Op. Atty. Gen., 349, 352; Barrett v. Hopkins, 7 Fed. Rep., 312; in re Walker, 3 Am. Jurist, 281; in re Bird, 2 Sawyer, 33; in re Dew, 25 Law Reporter, 538, 540;"U. S. V. Reaves, 126 Fed. Rep., 127, 131; Winth. Mil. L., p. 120, etc.) A soldier in the Army, sentenced in 1865 to be hanged, but who made his escape, and some years later was dishonorably discharged from the Army, may nevertheless be legally executed in 1879, pursuant to the sentence of the court, his status as a military prisoner awaiting execu- tion of sentence not having been altered by his discharge. But recommended that the sentence be commuted to imprisonment for life or for such term of years as the President may in his discretion determine. (16 Op. Attv. Gen., 349.) Where the jurisdiction of the military court has attached in respect of an officer of the Army, this includes not only the power to hear and determine the case but the power to execute and enforce the sentence. The different provi.sions of the sentence (dismissal, fine, and imprison- ment) took effect concurrently, while the accused was under the control of the military authorities of the United States as a com- missioned officer of the Army; the date of the order of dismissal, of the infliction of the fine, and of the beginning of the imprisonment, were the same date. The accused was proceeded against as an officer of the Army, and jurisdic- tion attached in respect of him as such; having been sentenced, his status was that of a military prisoner held by the authority of the United States as an offender against its laws. He was a military prisoner, though he had ceased by execution of the sentence of dismissal to be a soldier. Where jurisdiction has attached, it can not be divested by mere subsequent change of status. (Carter v. McClaughrv, 183 U. S., 365, 382.) Where discharge revoked as illegal. — Where by sentence of a court-martial a soldier is discharged from the Army before the ex- piration of his term of enlistment, and such sentence is afterwards set aside as null and void, the status of the soldier is not affected in any way by such sentence, and he is deemed to have been in the service all the time be- tween the sentence and the order setting it aside. Wliile in fact discharged from the Army, but before the expiration of his term of enlistment, the said soldier committed a homi- cide: Held, that he might be arrested and tried for such homicide by the military au- thorities, the discharge being in the meantime set aside as null and void, and the accused being at the time a soldier de jure. (In re Bird, 3 Fed. Cas. No. 1,428.) A naval prisoner made a bogus confession, claiming that he had committed a murder for which he was wanted by the civil authorities; he was thereupon discharged from the Navy and delivered to the civil authorities in accord- ance with their request: Held, that the Secre- tary of the Navy has authority to revoke the discharge so granted, being the result of fraudu- lent representations made by said enlisted man, and thereupon to reinstate him in his former status in the Navy and to bring him to trial by court-martial for his misconduct. (28 Op. Atty. Gen., 170.) An honorable discharge granted to a soldier, based on certain statements made by him and afterwards discovered to be false, may legally be revoked on the ground that it was given under a misapprehension of the facts, caused by the false statements aforesaid; such dis- charge must be treated as a nullity, having been obtained by the grossest falsehood and perjury. (16 Op. Atty. Gen., 349.) See also notes to articles 32 and 54, A. G. N. Where enlistment expired but not dis- charged. — Where the enlistment of a marine has expired, and there is no legal authority for retaining him in the service, he is in point of law entirely discharged from the Marine Corps, and can not be prevented from leaving. If he choose to remain and perform military service until obtaining a regular discharge, although not a soldier he would be liable in a limited degree to the regulations necessary to the peace and subordination of a military garrison. (U. S. v. Travers, 28 Fed. Cas. No. 16537; see note to Constitution, Art. I, sec. 8, clause 14, under "IV. Jurisdiction of courts- 975 Sec. 1624. Pt. 2. REVISED STATUTES. The Navy. martial,'" subhoadinc;, ''Persons not subject to jurisdiction of Federal courls-martial;" and see below, 'Court-martial prisoners in confine- ment after discharge."). The jurisdiction of a court-martial over an enlistc^d man for offenses committed during the period of enlistment extends after the termination of said period, whether or not he has in the meantime been arrested or other steps taken to enforce the jurisdiction; he continues in the naval service and amenable to court-martial until there has been some further action, such as a discharge, to terminate the status created by his contract of service. (Op. Atty. Gen., Feb. 27, 1922, file 26251-26615: 8; see note to Art. 61, A. G. N.; and note to Con- stitution, Art. I, sec. 8, clause 14, under "IV. Jurisdiction of courts-martial.") Court-martial prisoners in confinement after discharge. — Section 1361, Revised Statutes, relating to the Army, providing that ''all prisoners under confinement in said mili- tary prisons, undergoing sentence of courts- martial, shall be liable to trial and imprison- ment by courts-martial under the Rules and Articles of War, for offenses committed during the said confinement, " is intended to confer jurisdiction in the cases of "all' ' such prisoners, including those who were discharged from the Army by the same sentence which condemned them to imprisonment; a prisoner, though thus discharged from the Army, is subject to trial by court-martial for offenses committed while serving sentence; and section 1361, as thus construed, is not liable to constitutional objection. Under the power to make rules for "tne government and regulation of the land and naval forces, " Congress has provided that cases of this kind, arising in the Army, shall be tried by court-martial. (16 Op. Atty. Gen., 293, 295.) Section 1361, Revised Statutes, providing that prisoners under confinement in military prisons, undergoing sentences of Army courts- martial, shall be Liable to trial and punishment by courts-martial, etc., is not in conflict with the fifth amendment to the Constitution, as applied to a prisoner undergoing confinement imposed by sentence of court-martial, pursuant to which sentence he had been dismissed from the Army. (Ex parte Wildman, 29 Fed. Cas. No. 17,653a.) An act of Congress providing that prisoners confined in military prisons under sentence of court-martial shall be liable to trial and punish- ment by court-martial for offenses committed during said confinement is not in conflict with the Constitution providing for trial by jury; and said statute is applicable to one confined in a military prison, though at the time of his sentence to such confinement he was likewise sentenced to be discharged from the service, and that part of the sentence had been executed . (In re Craig, 70 Fed. Rep., 969.) A person held as a military prisoner for punishment for a military offense of which he has been con\icted is subject to military law, and to trial by court-martial for offenses com- mitted during such imjjrisonment, even if the prior sentence resulted in his discharge as a soldier. (Kahn v. Anderson, 255 U. S., 1, citing Carter v. McClaughry, 183 U. S., 365, 383; 16 Op. Atty. Gen., 292; in re Craig, 70 Fed. Rep., 969; ex parte Wildman, Fed. Cas. No. 17,6.53a; see also art. 22, par. e, A. W., June 4, 1920, 41 Stat., 787.) A general court-martial prisoner in the Navy may be tried by summary covu-t-martial or deck court prior to the expiration of his period of enlistment, and may afterwards be held to serve out the sentence imposed by such court, irrespective of whether or not his enlistment expires in the meantime (file 26504-100, Dec. 21, 1910); as to trial by court-martial of naval prisoners for offenses committed after expira- tion of enlistment, see file 26.509-259, March 12, 1918, recommending legislation similar to that above cited with respect to the Army. See also note above, under ''Where enlist- ment expired but not discharged." Naval reservists released from active duty. — An enrolled member of the Naval Reserve Force can not be tried by a naval court-martial for an offense alleged to have been committed while in active ser-vice after he has been released from active service and entered civil life, no charges or specifications having been preferred against him prior to his release from active duty, and the offense not being governed by article 14, A. G. N. (U. S. V. Warden or Keeper of Naval Prison, 265 Fed. Rep., 787.) Under the act of August 29, 1916 (39 Stat., 587), subjecting enrolled members of the Naval Reserve Force to the laws governing the Navy only during such time as they may by law be required to serve in the Navy, held that such enrolled member of said force can not be arrested and tried by court-martial after release from active service for an offense committed while in active service; nor can he be recalled to active duty, even in time of war, where the motive of the order recalling him is to make him subject to naval discipline. (U. S. v. MacDonald, 265 Fed. Rep., 695. See note to art. 24, A. G. N.) Such member can be recalled into active service only in conformity ■with the laws and regulations on that subject, and can not be recalled to give the naval court-martial juris- diction to try him for an offense committed while he was in active service. (U. S. v. Warden or Keeper of Naval Prison, 265 Fed. Rep., 787.) A person discharged from the naval service can be prosecuted under the criminal laws of the United States for any act during the period of his active duty, made a crime under the general laws of the United States, unless he has been previously placed in jeopardy. (U. S. V. MacDonald, 265 Fed. Rep., 695.) See note below, under "Naval Reserve Force." Void enlistment. — While a minor between certain ages is eligible for enlistment with the consent of his parents or guardians, and in such cases his enlistment ■without their consent is not void but voidable, held that the enlistment of a minor below the minimum age of enlist- ment, and who belongs to one of the classes whose enlistment is prohibited by statute, is not merely voidable but void; and in such a case, as the minor never became a soldier sub- 976 The Navy. PL 2. REVISED STATUT S. Sec. 1624. ject to military law, he could not be a deserter under the Articles of War and so is not amenable to the jurisdiction of a court-martial for that offense. (Hoskins v. Pell, 239 Fed. Rep., 279; L. R. A., 1917 D, 1053, construing sec. 1118, R. S., relating to enlistments in the Army, corresponding to sec. 1420, R. S., relating to enlistments in the Navy.) The enlistment of such a minor is perempto- rily forbidden by statute, \vithout regard to the consent of "his parent or guardian; his enlistment is as invalid as the enlistment of an insane or intoxicated person. (Hoskins v. Pell, 239 Fed. Rep., 279; L. R. A., 1917 D, 1053; see also ex parte Rush, 246 Fed. Rep., 172, 174; ex parte Beaver, 271 Fed. Rep., 493, 496.) If the enlistment of a person in the Navy was void, then there is no right to discipline h im at any period of his service, even though he was not undertaking to escape it. If his en- listment was void (which means that he was never in the service), then for any act by any person claiming to be in authority over him, whereby any of the natural rights of the alleged enlisted' man were denied him, as, for instance, if he had been imprisoned for an hour, or a day, or a week, because of some infraction of the rules, a civil action for damages would lie in hia favor against the particular individuals who were responsible for such punishment. No rule of law can be cited that will ever protect a public officer from the consequences ofany act which he may imagine he is performing as a public officer, but which involves an exercise of authority by him as to some person over whom he is absolutely without authority. (Ex parte Rock, 171 Fed. Rep., 240, 242.) For other cases, see note to section 1420, Revised Statutes. Voidable enlistment. — An enlisted soldier can not avoid a charge of desertion by showing that at the time when he voluntarily enlisted he had passed the age at which the law allows enlisting officers to enlist recruits. (In re Grimlev, 137 U. S., 147.) Under section 1624, Revised Statutes, article 8, providing for punishment for desertion, where a minor between the ages of 14 and 18 years, without the consent of his father, then living, enlisted in the Navy and received the usual pay from the date of his enlistment until he deserted, was arrested and detained as a deserter, held that he could not be dis- charged from the custody of the naval authori- ties on a writ of habeas corpus sued out by his father, although the latter was entitled to demand his son's discharge from the Navy as soon as he had answered and satisfied the charge for desertion then pending against him. (U.S. V. Reaves, 126 Fed. Rep., 127.) For other cases, see notes to sections 761 and 1419, Revised Statutes, and see note to article 22, A. G. N. Detailed to duties other than military. — Where a military officer detailed for duty in the Freedmen's Bureau has been guilty of misap- propriation of money or any violation of the rules and regulations governing disbursing officers of the Army, he may be tried by court- martial in the same manner as anv other such Army officer. (14 Op. Atty. Gen., 268, 269.) Regularly enlisted men of the Navy em- ployed on vessels in the Coast and Geodetic Survey, pursuant to section 4685, Revised Statutes, would be governed by the Articles for the Government of the Navy just as if serv- ing on a vessel of war. (19 Op. Atty. Gen., 182, 183.) Officers of the Army are in the eye of the law on nulitary duty although employed as such officer under statutes of the United States in the public service on duties not in them- selves pertaining to the Army; the status of such an officer was not changed by his detail to such duties, and he was still subject to the mili- tarv jurisdiction. (Carter v. McClaughry, 183 U.'S., 365, 399-400.) Consent of accused. — Conceded, that the possession by the accused of a status essential to the exercise by the court-martial of its power was jurisdictional, and therefore may not be held to have existed merely because of an estoppel. (Givens v. Zerbst, 255 U. S., 11, 19, affirming ex parte Givins, 262 Fed. Rep., 702.) Chiefs of bureaus in the Navy Depart- ment. — The chief of the Bureau of Medicine and Surgery in the Nav^y Department is amen- able to the jurisdiction of a naval court-martial upon charges and specifications preferred against him for acts done as such chief. (18 Op. Atty. Gen., 176.) A naval court-martial has jurisdiction to try the Paymaster General of the Navy and sen- tence him to be dismissed from the position of chief of bureau, and to be suspended from rank and duty as pay inspector. Though chief of a bureau in the Navy Department, he is not a civil officer. (Smith v. V. S., 26 Ct. Cls., 143.) A writ of prohibition will not be issued to prohibit a naval covui;-martial from trying a naval officer, being PajTuaster General and chief of a bureau in the Navy Department, upon a charge of " scandalous conduct tending to the destruction of good morals," with speci- fications alleging that as such chief of bureau he made contracts and payments in disregard of the interests of the Government, and to pro- mote the interests of contractors, in violation of law and to the great scandal and disgrace of the service and injury of the United States; and upon the additional charge of "culpable inefficiency in the performance of duty,'' v^th speciiifications setting forth acts similar to those specified under the first charge. (Smith V. Whitney, 116 U. S., 167.) An offense committed by a naval officer serving as chief of a bureau in the Navy De- partment, relating to the duties of his office as bureau chief, is a case arising in the naval forces and therefore punishable by court- martial under the articles and regulations made or approved by Congress in the exercise of, the powers conferred upon it by the Con- stitution. (Smith V. WTiitney, 116 U. S., 167, 186.) See also note to section 421, Revised Stat- utes; and see Wales v. Whitney (114 U. S., 564), and Swaim v. United States (165 U. S., 553), the latter case referring to the trial of the Judge Advocate General of the Army. 977 Sec. 1624, Art. 1. rt. 2. REVISED STATUTES. The Navy. Paymasters' clerks. — See note to section 138(5, Revised Statutes, as to status of pay- masters' clerks a|)i)ointed pursuant thereto, and for amendatory statutes abolishing pay- mastei-s' clerks and substituting the grades of acting i)ay clerk, pay clerk, and chief pay clerk. A jiay master's clerk on duty in the Navy is a person ' ' in the naval forces of the United States" \\'ithin the meaning of those terms as used in the act of March 2, 1863 (12 Stat., 696, sec. 1; art. 14, A. G. N.), and amenable to the jurisdiction of a court-martial as provided for in that act. (In re Bogart, 3 Fed. Cas. No. 1596; see also in re Reed, 20 Fed. Cas. No. 11636; U. S. V. Bogart, 24 Fed. Cas. No. 14616; ex parte Reed, 100 U. S., 13.) A paymaster's clerk in the Navy, regu- larly appointed and assigned to duty on a recei^^Jlg ship, is a person in the naval ser\^- ice of the United States, subject to be tried and con\'icted and sentenced to imprisonment by a general court-martial for a \aolation of section 1624, Revised Statutes. (Johnson v. Sa>Te, 158 U. S. 109.) Civil engineers. — See "historical note" to section 1413, Revised Statutes, as to status of civil engineers in the Navy. Civil engineers in the Navy are subject to jurisdiction of naval courts-martial. (15 Op. Atty. Gen., 597; see note to art. 36, A. G. N.) Marine Corps. — See section 1621, Revised Statutes, and note thereto, as to laws and regu- lations governing the Marine Corps and mem- bers of the Medical Department serving there- with, and the discipline of its officers and en- listed men. Whether a naval court-martial ordered under the authority of the Secretary of the Navy has jurisdiction to try a lieutenant colonel of the Marine Corps will depend upon whether the alleged misconduct of the accused took place while he was employed in the land serv- ice or in the naval service. (5 Op. Atty. Gen., 706, construing act of July 11, 1798, sec. 4; see later laws and decisions noted under sec. 1621, R. S.) Naval Reserve Force. — "Men transferred to the Fleet Naval Reserve shall be governed by the laws and regulations for the government of the Navy * * *. " (Act Aug. 29, 1916, 39 Stat., 591.) "Enrolled members of the Naval Reserve Force when in active service shall be subject to the laws, regulations, and orders for the gov- ernment of the Regular Navy, and the Secre- tary of the Navy may, in his discretion, permit the members of the Naval Reserve Force to wear the unifonn of their respective ranks, gi-ades, or ratings while not in active service, and such members shall, for any act committed l)y them while wearing the uniform of their respective ranks, grades, or ratings, be subject to the laws, regulations, and orders for the government of the Regular Navy. " (Act July 1, 1918, 40 Stat., 712.) See note above, under "Naval reservists re- leased from active dutv. ' ' Coast Guard. — "Whenever, in time of war, the Coast Guard operates as a part of the Navy in accordance with law, the personnel of that service shall 1)8 subject to the laws prescril>ed for the government of the Navy: Provided, That in the initiation, prosecution, and com- pletion of disciplinary action, including re- mission and mitigation of punishments for any offense committed by any officer or enlisted man of the Coast (iuard, the jurisdiction shall hereafter depend upon and be in accordance with the laws and regulations of the department having jurisdiction of the person of such offender at the various stages of such action: Provided further, That any ])unishment im- posed and executed in accordance with the provisions of this section shall not exceed that to which the offender was liable at the time of the commission of his offense. ' ' (Act Aug. 29, 1916, 39 Stat., 600.;) Lighthouse Service. — "That any of the personnel of the Lighthouse Service who may be transferred as herein pro\'ided shall, while imder the jurisdiction of the Navy Department or War Department, be subject to the laws, regulations, and orders for the government of the Navy or Army, as the case may be, in so far as the same may be applicable to persons whose retention permanently in the military service of the United States is not contem- plated by law. " (Act Aug. 29, 1916, 39 Stat., 602.) Coast and Geodetic Survey. — "That any of the personnel of the Coast and Geodetic Survey who may be transferred as herein pro- vided shall, while under the jurisdiction of the War Department or Navy Department, have proper military status and shall be subject to the laws, regulations, and orders for the gov- ernment of the Army or Navy, as the case may be, in so far as the same may be applicable to persons whose retention permanently in the military service of the United States is not contemplated by law." (Act May 22, 1917, sec. 16, 40 Stat., 88.) Public Health Service. — "When ofBcers of the United States Public Health Service are serving on Coast Guard vessels in time of w&r, or are detailed in time of war for duty ^nth the Army or Navy in accordance with law, they * * * shall be subject to the laws prescribed for the government of the ser\T.ce to which they are respectively detailed. " (Act July 9, 1917, 40 Stat., 242.) For other cases, see note to article 5, A. G. N., as to jurisdiction over ci^dlians acting as spies; article 6, A. G. N., as to jurisdiction of murder by civilian on naval hospital ship; article 22, as to concurrent jurisdiction of civil authorities; articles 32 and 53, as to revocation of illegal discharge; section 1422, Revised Statutes, as to men detained after expiration of enlistment; section 1519, Revised Statutes, as to court-martial of midshipmen; and see, generally, notes to articles 61, 62, and 63, A. G. N., and to the Constitution, Article I, section 8, clauses 11, 13, and 14. Article 1. [Commander's duty of example and correction.] The commanders of all fleets, squadrons, naval stations, and vessels belonging to the Navj^, are required to show in themselves a good example of virtue, honor, patriotism, 978 The Navy. Pt. 2. REVISED STATUTES. Sec. 1624, Art. 4. and subordination; to be vigilant in inspecting the conduct of all persons who are placed under their command; to guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the Nav}^, all persons who are guilty of them; and any such commander who offends against this article shall be punished as a court-martial may direct. — (17 July, 1862, c. 204, s. 1, v. 12, p. 601, art. 1.) Art. 2. [Divine service.] The commanders of vessels and naval stations to which chaplains are attached shall cause divine service to be performed on Sunday, whenever the weather and other circumstances allow it to be done; and it is earnestly recommended to all officers, seamen, and others in the naval service diligently to attend at every performance of the worship of Almighty God.— (17 July, 1862, c. 204, s. 1, v. 12, p. 601, art. 2.) Art. 3. [Irreverent behavior.] Any irreverent or unbecoming behavior during divine service shall be punished as a general or sunmiary court-martial may direct.— (17 July, 1862, c. 204, s. 1, v. 12, p. 601, art. 2.) As to deck courts and their power to punish, 1 As to limitations of punishment which may be see note to article 24, A. G. N. adjudged bv courts-martial, see note to 1 article 63, A.G.N. Art. 4. [Offenses punishable by death.] The punishment of death, or such other punisliment as a court-martial may adjudge, may be inflicted on any person in the naval service — (17 July, 1862, c. 204, s. 1, v. 12, p. 601, art. 3.) First. [Mutiny.] Who makes, or attempts to make, or unites with any mutiny or mutinous assembly, or, being witness to or present at any mutiny, does not do his utmost to suppress it; or, knowing of any mutinous assembly or of any intended mutiny, does not immediately communicate his knowledge to his superior or commanding officer; Second. [Disobedience of orders.] Or disobeys the lawful orders of his superior officer; Third. [Striking superior officer.] Or strikes or assaults, or attempts or threatens to strike or assault, his superior officer while in the execution of the duties of his office ; Fourth. [Intercourse with an enemy.] Or gives any intelligence to, or holds or entertains any intercourse with, an enemy or rebel, without leave from the President, the Secretary of the Navy, the commander-in-chief of the fleet, the commander of the squadron, or, in case of a vessel acting singly, from his commanding officer; Fifth. [Messages from an enemy.] Or receives any message or letter from an enemy or rebel, or, being aware of the unlawful reception of such message or letter, fails to take the earliest opportunity to inform his superior or commanding officer thereof; Sixth. [Desertion in time of war.] Or, in time of war, deserts or entices others to desert; [See §§ 1996, 1998.]— (23 April, 1800, c. 33, art. 17, v. 2, p. 47.) Seventh. [Deserting trust.] Or, in time of war, deserts or betrays his trust, or entices or aids others to desert or betray their trust; Eighth. [Sleeping on watch.] Or sleeps upon his watch; Ninth. [Leaving station.] Or leaves his station before being regularly relieved ; 979 Sec. 1624, Art. 4. Pt. 2. REVISED STATUTES. The Navy. Tenth. [Willful stranding or injury of vessel.] Or intentionally or willfully suffers any vessel of the Navy to be stranded, or run upon rocks or shoals or improperly hazarded; or maliciously or willfully injures any vessel of the Navy, or any part of her tackle, armament, or equipment, whereby the safety of the vessel is hazarded or the lives of the crew exposed to danger; Eleventh. [Unlawful destruction of public property.] Or unlaw- fully sets on fire, or otherwise unlawfully destroys, any public property not at the time in possession of an enemy, pirate, or rebel; Twelfth. [Striking flag or treacherously yielding.] Or strikes or attempts to strike the flag to an enemy or rebel, without proper authority, or, when engaged in battle, treacherously yields or pusillanimously cries for quarters ; TinRTEENTH. [CowARDicE IN BATTLE.] Or, in time of battle, displays cowardice, negligence, or disaffection, or withdraws from or keeps out of danger to which he should expose himself; Fourteenth. [Deserting duty in battle.] Or, in time of battle, de- serts his duty or station, or entices others to do so; Fifteenth. [Neglecting orders to prepare for battle.] Or does not properly observe the orders of his commanding officer, and use his utmost exertions to carry them into execution, when ordered to prepare for or join in, or when actually engaged in, battle, or while in sight of an enemy; Sixteenth. [Neglecting to clear for action.] Or, being in command of a fleet, squadron, or vessel acting singly, neglects, when an engagement is probable, or when an armed vessel of an enemy or rebel is in sight, to prepare and clear his ship or ships for action; Seventeenth. [Neglecting to join on signal for battle.] Or does not, upon signal for battle, use his utmost exertions to join in battle; Eighteenth. [Failing to encourage the men to fight.] Or fails to encourage, in his own person, his inferior officers and men to fight courageously; Nineteenth. [Failing to seek encounter.] Or does not do his utmost to overtake and capture or destroy any vessel which it is his duty to encounter; Twentieth. [Failing to afford relief in battle.] Or does not afford all practicable relief and assistance to vessels belonging to the United States or their allies when engaged in battle. "Such other pimishment" construed. — See note to article 63, A. G. N., under "Cruel and unusual punishments." Imprisonment in penitentiaay. — See arti- cle 7, A. G. N. "Superior oflB.cer" construed. — The arti- cle of war which prescribes the punishment of an officer or soldier who offers violence to or disobeys the command of his superior officer does not apply as between an undergraduate cadet at the Military Academy and a fellow undergraduate, whatever may be their relative rank in the academic organization; the rank of cadets within the academy, as commissioned officers, noncommissioned officers, and privates, is not rank in the Army. (7 Op. Atty. Gen., 332, 333.) See note to section 1623, Revised Statutes, as to construction of "senior in rank"; and see note to article 8, A. G. N. Mutiny.— See note to article 6, A. G. N., as to officers charged with murder for execu- tion of seaman for mutinous conduct. Disobedience of orders. ^ — Question whether disobedience of orders is such conduct as may be punished under the provision of the law relating to "scandalous conduct tending to the destruction of good morals," discussed but not decided. (Wilkesv. Dinsman, 7 How., 89, 127; see note to art. 8, A. G. N.) It sometimes happens that a prompt and unhesitating obedience to orders is indispens- able to the complete attainment of the object. \Vhile subordinate officers or soldiers are pausing to consider whether they ought to obey or are scrupulously weighing the evidence of the facts upon which the commander in chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance. (Wilkes v. Dinsman, 7 How., 89, 130.) 980 The Navy. Ft. 2. REVISED STATUTES. Sec. 1624, Art. 5. A prompt and unhesitating obedience to orders is indispensable to the complete attain- ment of the oliject. The service is a military service, and the command of a military nature; and in such cases every delay and every obstacle to an efficient and immediate compli- ance necessarilv tends to jeopardize the public interests. (Martin v. Mott, 12 Wheat., 19, 30.) If a superior officer has a right to contest the orders of the President upon his own doubts as to the exigency ha\-ing arisen, it must be equally the right of every inferior officer and soldier; and any act done by any person in furtherance of such orders would subject him to responsibility in a ci\'il suit in which his defense must finally rest upon his ability to establish the facts by competent evidence. Such a course would be subversive of all discipline and expose the best disposed officers to the chances of ruinous litigation. (Martin V. Mott, 12 WTieat., 19, 30.) The belief of a subordinate as to his rights does not furnish any justification for his disobe- dience of orders. For there would be an end of all discipline if the seamen and marines on board a ship of war on a distant service were permitted to act upon their own opinion of their rights, and to throw off the authority of the commander whenever they supposed it to be unlawfully exercised. (Dinsman v. Wilkes, 12 How., 390, 403.) For other cases, as to duty of obeying orders and whether illegal order is a defense to a civil suit against the subordinate obeying same, see note to Constitution, Article I, section 8, clause 13, under "Responsibility of military authorities for illegal acts." Assault and battery. — An "assault" is an attempt which, if_ consummated, would result in a battery. It is essential to a battery that some force shall be actually applied, not merely threatened or attempted to be applied, to the person of another, or to some article so closely connected with his person as to be regarded as a part of it. And the conduct of a soldier in shooting at another, without hitting him, does not constitute an assault and battery. (An- derson V. Crawford, 265 Fed. Rep., 504.) While a battery always includes an assault, assaults often fall short of a battery. (An- derson V. Crawford, 265 Fed. Rep., 504.) The definition of an assault is an offer or at- tempt by force to do a corporal injury to another. as if one person strikes at another with his hands or with a stick and misses him ; for if the other be stricken, it is a battery which is an offense of a higher grade. (Anderson v. Crawford, 265 Fed. Rep., 504.) See note to article 43, A. G. N., as to charges and specifications. Desertion in time of war. — See section 1998, Revised Statutes, as amended by act of August 22, 1912 (37 Stat., 356), providing for disabilities to be suffered by persons who desert in time of war, including the forfeiture of the rights of citizenship and incapacity to hold office xmder the United States. See also article 19, A. G. N., as amended by said act of August 22, 1912, as to reenlistment of war-time deserters. The provisions of sections 1996 and 1998, Re\dsed Statutes, which subject persons de- serting the military service of the United States to additional penalties, can only take effect upon conviction by a court-martial. (Kurtz V. Moffitt, 115 U. S., 487, 501. As to effect of pardon, see note to Constitution, Art. II, sec. 2, clause 1, under "III. Power to pardon offenses against United States," subheading, "The effect of the pardon is prospective.") See note to article 8, A. G. N.. as to definition of desertion, etc. See articles 61 and 62, A. G. N. and notes thereto, as to statute of limita- tions. "Time of war" construed. — Whether a condition of war exists within the articles of war relating to the trial of certain offenses com- mitted by soldiers is within the exclusive jurisdiction of the political department of the Government. (Hamilton v. McClaughry, 136 Fed. Rep., 445.) The ' ' Boxer uprising " in China in June, 1900, during which the United States assembled an army of 15,000 men, over 5,000 of whom were ordered to and did proceed to China to assist the forces of the allied nations in quelling the uprising and to release the accredited repre- sentatives of the United States then imprisoned \nthin the city of Pekin, during which the pay of officers and men in the United States military service was increased to a war basis, constituted a "time of war," within the articles of war providing for the trial of certain offenses by military coiu-t-martial. (Hamilton v. Mc- Claughry, 136 Fed. Rep., 445.) Art. 5. [Spies, etc.] All persons who, in time of war, or of rebellion against the supreme authority of the United States, come or are found in the capacity of spies, or who bring or deliver any seducing letter or message from an enemy or rebel, or endeavor to corrupt any person in the Navy to betray his trust, shall suffer death, or such other punishment as a court-martial may adjudge. — (17 July, 1862, c. 204, s. 1, v. 12, p. 602, art. 4. 13 Feb., 1862, c. 25, s. 4, v. 12, p. 340. 3 Mar., 1863, c. 75, s. 38, v. 12, p. 737.) - "Time of war" construed. — See note to article 4, A. G. N. "Such, other punishment" construed. — See note to article 63, A. G. N., under " Cruel and unusual punishments." Imprisonment in penitentiary. — See arti- cle 7, A. G. N. Punishment of persons not belonging to Navy. — In time of war or rebellion the military jurisdiction is extended over "aU 981 Sec. 1624, Art. 6. PL 2. REVISED STATUTES. The Navy. persons'' found lurkinject to the articles of war who are acces- sories to the crime of desertion by a soldier, or who do any of the acts specified tending to promote his commission of that crime. It has no application to the crime of the soldier him- self. (Kurtz V. Moftit, 115 U. S-, 487, 502. ) An attorney employed by the father of a soldier, 16 years old, who had enlisted ■without his father's consent, to obtain his release on the ground of nonage, and who ad\'ised the soldier, then a deserter, to remain away from the authorities until notified, held not to have "harbored, concealed, or assisted" the de- serter, within section 42 of the Criminal Code (above cited i, which requires, to constitute either of the offenses, some positive physical act, done with knowledge and intent to aid in the wrongful purpose of the deserter. (Firpo V. U. S., 261 Fed. Rep., 850.) To "conceal," as used in section 42 of the Criminal Code (above cited), pro\'icUng for punishment of anyone who shall harbor, con- ceal, protect, or "assist any soldier who has deserted from service, means to hide, secrete, or keep out of sight. (Firpo v. U. S., 261 Fed. Rep., 850.) To "harbor," as tised in section 42 of the Criminal Code (above cited), means to lodge, to care for, after secreting the deseiter. (Firpo i>. U. S., 261 Fed. Rep., 850.) Art. 9. [Reduction of officer to enlisted rating-.] Any officer who absents himseK from his command without leave, may, by the sentence of a court- martial, be reduced to the rating of an ordinary seaman. — (16 May, 1864, c. 86, s. 2, V. 13, p. 75.) Punishment not authorized for other offenses. — The only pro\'ision of law author- izing the reduction of an officer to an enlisted rating is found in article 9, A. G. N., and it authorizes such punishment only in the case of an officer "who absents himself from his command without leave." Held, that such punishment is limited to the particular offense specified by this article, and can not be ad- judged by a general court-martial for offenses under article 8, A. G. N. (C. M. O. 34-1918, citing precedents; see also C. M. O. 73-1918, 31-1919, and 279-1919.) President's approval of sentence. — It is deemed ad\isable, as a matter of policy, al- though not specifically required by statute, to submit to the President for confirmation the sentence of a general court-martial reducing a wan-ant officer to the rating of orcUnary sea- man, inasmuch as such sentence deprives the accused of his position as a warrant officer in the Navy. (Naval Dig., 1916, p. 517; C. M. 0. 11-1916; C. M. 0. 185-1919; see art. 53, A. G. N.) Rating of ordinary seaman changed. By act of August 29, 1916 (39 Stat., 575), the rating of ' 'ordinary seaman " was changed to ' 'seaman, second class. ' ' This change has been construed as authorizing the reduction of officers to the rating of seaman, second class, for the offense specified in this article. (See, e. g., C. M. O. 185-1919.) Reduction of ofl&cer to another ofl3.ce.— The sentence of a court-martial reducing an officer to a lower gi-ade and rank was disap- proved by the President because it could not be carried into effect by the Executive alone, but would require a nomination by the Presi- dent and confirmation by the Senate, and then onlv in the case of an existing ^•acancy. (See Swaim v. U. S., 165 U. S., 553, 563.) 988 The Navy. Pt. 2. REVISED STATUTES. Sec. 1624, Art. 13. Art. 10. [Desertion by resignation.] Any commissioned officer of the Navy or Marine Corps who, having tendered his resignation, quits his post or proper duties without leave, and with intent to remain permanently absent therefrom, prior to due notice of the acceptance of such resignation, shall be deemed and punished as a deserter. — (5 Aug., 1861, c. 54, s. 2, v. 12, pp. 316, 317.) Necessity of acceptance. — "The resigna- tion of an officer of the Navy is not effective until it has been duly accepted by the Presi- dent, who possesses the power of compelling the officer to remain in the service by declining to accept such resignation." (File 26505-21 and 28, citing Edwards v. U. S., 103 U. S., 471; file 26262-2146.) Implied resignation.— "If any officer of the Navy accepts or holds an appointment in the diplomatic or consular service of the Gov- ernment, he shall be considered as ha\dng resigned his place in the Navv, and it shall be filled as a vacancy." (Sec. 1440, R. S.) If an officer is illegally dismissed from the 8er\Tce, it becomes his duty at once or within a reasonable time to appeal to the highest authority for revocation, modification, or correction of the illegal order. If he obeys and submits for an unreasonable length of time, he must be held to have abandoned all title and claim to the office and its emolimients, and to have waived his right to both. And it is immaterial that he may have submitted to the order because he was ignorant of the law. (Ide V. U. S., 25 Ct. Cls., 401; affirmed on other grounds, 150 U. S., 517. See also Armstrong r. IT. S., 26 Ct. Cls., 387.) The principle that an officer who acquiesces in his dismissal from the service for a long period of time has abandoned said office, which aban- donment is equivalent to a resignation, does not apply to an officer on the retired list, who who owed no service to the Government, (Fletcher v. U. S., 26 Ct. Cls., 541, 563.) The doctrine of resignation by implication, applicable to civil officers, is not to be favored in the Army and Navy, where forms and reg- ulations are prescribed and must be enforced. A resignation by a naval officer is inoperative until accepted by the proper authority, and even if the acceptance of another office be held equivalent to the tender of his resignation as an officer of the Navy, he still remains an in- cumbent of the naval office until such implied resignation is accepted. (18 Op. Atty. Gen., 395.) A cadet engineer who graduated from the Naval Academy and was honorably discharged from the service under an erroneous inter- pretation of the law by the Navy Department, and who thereupon accepted another and incompatible office under the United States, is entitled to be recognized as having continued in the service, notwithstanding his discharge, which was null and void; and under the cir- cumstances which existed, and which were owing to the fault of the Government and not to fault of his, acceptance by him of an incom- patible office was not tantamount to an im- plied resignation of his office in the Navy. (18 Op. Atty. Gen., 395; see also Winchell v. U. S., 28 Ct. Cls., 30; and see art. 36, A. G. N.) Certain cadet engineers who had graduated from the Naval Academy were honorably dis- charged under an erroneous interpretation by the Navy Department of an act approved August 5, 1882 (22 Stat., 285). Such discharges were held by the courts to be void (see Perkins V. U. S., 20 Ct. Cls., 438; 116 U. S., 483). Hdd, that the fact such officers may have accepted pay on discharge as provided by said act of 1882, without protest, or in some cases protested against their discharge and subsequently _ ac- cepted pay, is not tantamount to a resignation. Protests and acceptance of pay could not change the legal force of the statute, either for or against them. (18 Op. Atty. Gen., 373.) Art. 11. [Dealing in supplies.] No person in the naval service shall pro- cure stores or other articles or supplies for, and dispose thereof to, the officers or enlisted men on vessels of the Navy, or at navy yards or naval stations, for his own account or benefit. — (26 Aug., 1842, c. 206, s. 1, v. 5, p. 535.) Art. 12. [Importing dutiable goods.] No person connected with the Navy shall, under any pretense, import in a public vessel any article which is liable to the payment of duty.— (30 July, 1846, c. 74, s. 10, v. 9, p. 44.) Art. 13. [Distilled spirits only as medical stores.] Distilled spirits shall be admitted on board of vessels of war only upon the order and under the control of the medical officers of such vessels, and to be used only for medicol purposes. — (14 July, 1862, c. 164, s. 4, v. 12, p. 565.) The possession of alcoholic liquors by any person at any place under naval jurisdic- tion designated by the President, except as permitted by regulations for medicinal pm-poses, and the sale of such liquors to any person in the naval forces while in uniform, were prohibited by act of May 18, 1917, section 12 (40 Stat., 82), as amended by act of October 6, 1917 (40 Stat., 393). See also national prohibition act of Oc- tober 28, 1919, section 7 (41 Stat., 307). 989 Sec. 1624, Art. 14. Pt. 2. REVISED STATUTES. The Navy. Art. 14. [Fraud against United States; embezzlement; etc.] Fine and im- prisonment, or such other punishment as a court-martial may adjudge, shall be inflicted upon any person in the naval service of the United States. — (2 Mar., 1863, c. 67, s. 1, V 12, p. 696.) [Pkesenting false claims.] Who presents or causes to be presented to any person in the civil, military, or naval service thereof, for approval or pay- ment, any claim against the United States or any officer thereof, knowing such claim to be false or fraudulent; or [Agreement to obtain payment of false claim.] Who enters into any agreement or conspiracy to defraud the United States by obtaining, or aiding others to obtain, the allowance or payment of any false or fraudulent claim; or [False papers.] Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or against any officer thereof, makes or uses, or procures or advises the making or use of, any writing, or other paper, knowing the same to contain any false or fraudulent statement; or [Perjury.] Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or any officer thereof, makes, or procures or advises the making of, any oath to any fact or to any writing or other paper, knowing such oath to be false; or [Forgery.] Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or any officer thereof, forges or counterfeits, or procures or advises the forging or counterfeiting of, any signature upon any writing or other paper, or uses, or procures or advises the use of, any such signature, knowing the same to be forged or counterfeited; or [Delivering less property than receipt calls for.] Who, having charge, possession, custody, or control of any money or other property of the United States, furnished or intended for the naval service thereof, knowingly delivers, or causes to be delivered, to any person having authority to receive the same, any amount thereof less than that for which he receives a certificate or receipt; or [Giving receipts without knowing truth of.] Who, being authorized to make or deliver any paper certifying the receipt of any money or other property of the United States, furnished or intended for the naval service thereof, makes, or delivers to any person, such writing, without having full knowledge of the truth of the statements therein contained, and with intent to defraud the United States; or [Stealing, wrongfui.ly selling, &c.] Who steals, embezzles, knowingly and willfully misappropriates, applies to his own use or benefit, or wrongfully and knowingly sells or disposes of any ordnance, arms, equipments, ammuni- tion, clothing, subsistence stores, money or other property of the United States, furnished or intended for the military or naval service thereof; or [Buying public military property.] Who knowingly purchases, or receives in pledge for any obligation or indebtedness, from any other person who is a part of or employed in said service, any ordnance, arms, equipments, ammunition, clothing, subsistence stores, or other property of the United States, such other person not having lawful right to sell or pledge the same; or 990 The Navy. Pt. 2. REVISED STATUTES. Sec. 1624, Art. 14. [Any other fraud against the United States.] Who executes, at- tempts, or countenances any other fraud against the United States. — (17 July, 1862, c. 204, art. 7, v. 12, p. 602.) [Trial of offender after discharge.] And if any person, being guilty of any of the offenses described in this article while in the naval service, receives his discharge, or is dismissed from the service, he shall continue to be liable to be arrested and held for trial and sentence by a court-martial, in the same manner and to the same extent as if he had not received such discharge nor been dis- missed.— (2 Mar., 1863, c. 67, s. 2, v. 12, p. 697.) See sections 3617-3652, Revised Statutes, as to duties of disbursing officers; and see Crim- inal Code, act of March 4, 1909 (35 Stat., 1094, et seq.), sections 28-48, as to frauds, etc. , upon the United States, and sections 36, 47, 86-97, as to embezzlement, etc. Article 14 not repealed by later legisla- tion.— Section 5438, Revised Statutes, pro- vided for the punishment by civil coiu-ts of "every person" who committed offenses in- cluded by article 14, A. G. N, Said section 5438 was embodied in the Criminal Code (act Mar. 4, 1909, 35 Stat., 1095) as section 35 thereof. Said section 35 of the Criminal Code was reenacted, with amendments, by act of October 23, 1918 (40 Stat., 1015), applj-ing to "whoever" shall do the acts therein de- scribed. Held, that the amendment of section 35 by said act of October 23, 1918, did not in any manner refer to or repeal the article of war (corresponding to art. 14, A. G. N.), and does not deprive courts-martial of their juris- diction of persons in the military and naval service. (U. S. v. Barry, 260 Fed. Rep. 291.) Discretionary punishment. — See note to article 63, A. G. N., as to limitations of punish- ment in time of peace; and note to article 8, as to discretionary punishments. See also note to article 22, A. G. N., as to punishment for embezzlement. Offenses under the article of war (correspond- ing to this article) may be of greater or less gra\aty, and the necessity for the exercise of discretion in the matter of punishment is ob- vious. Conviction in some c^ses might deserve the pimishment of fine, or of imprisonment, or of both, as well as of dismissal in addition to either or both ; for others, lesser penalties might suffice. The word "or" was properly used to give play to discretion. In any event, fine might be inflicted for the commission of one of the offenses enumerated in this article, and imprisonment for the commission of another; and dismissal under another charge of conduct unbecoming an officer and a gentleman. (Car- ter V. McClaughrj^ 183 U. S., 365, 392; the ar- ticle of war under consideration in this case read, "fine or imprisonment, or by such other punishment as a court-martial may adjudge.") The word "imprisonment" as used in the article of war was not employed in a technical sense to signify imprisonment at a military post without hard labor, but has a broader significa- tion and empowers an Aiiny court-martial to sentence a person in the military service to imprisonment at hard labor, or to a peniten- tiary where hard labor is a part of the discipline. where the offense of which he is convicted is one for which the civil tribunals could impose a like sentence. (In re Langan, 123 Fed. Rep., 132; see note to art. 7, A. G. N. The articles of war expressly prohibited confinement in a pen- itentiary, unless the offense was one so punish- able by the civil courts. ) It is not probable that Congi-ess intended to prescribe a different penalty for the theft or embezzlement of Government property, de- pending upon the tribunal before whom the accused happened to be tried. No reason is perceived why the sentence in one case should be less severe than in the other. The offense of stealing Government property or embezzling is quite as heinous when committed by a per- son in the military service as when committed by a civilian. It is not believed, therefore, that the omission of the word "hard labor" in the article of war is any evidence of a design not to subject persons in the military service to imprisonment at hard labor, provided that they commit offenses which would subject them to such punishment if they happened to be tried before a civil tribunal. (In re Langan, 123 Fed. Rep., 132.) A person sentenced by Army court-martial to fine and imprisoimient for presenting fraud- ulent claims to the United States may be pun- ished by dismissal from the service for the same offense as conduct unbecoming an officer and a gentleman. (Rose v. Roberts, 99 Fed. Rep., 948. See note to art. 22, A. G. N.) Under the article of war, pro\iding that a person in the military service who shall be guilty of certain offenses shall on conviction thereof be punished by "fine or imprisonment, or by such other punishment as a court-martial may adjudge," a person convicted of two of- fenses named in said article may be punished by fine as to one, and by imprisonment as to the other. (Rose r. Roberts, 99 Fed. Rep., 948.) Conspiring to defraud the United States, and causing false and fraudulent claims to be made against the United States, are separate and dis- tinct offenses* and the fact that the charges re- lated to and grew out of the same transaction made no difference. Accordingly, the military court was empowered to punish the accused, as to one, by fine, and as to the other, by imprison- ment, and dismissal might have been added to fine and imprisonment as part of the punish- ment for either or both of the offenses. The accused was not twice put in jeopardy because the sentence was greater than the court-martial had jurisdiction to inflict on conviction of any 991 Sec. 1624, Art. 14. Pt. 2. REVISED STATUTES. The Navy. one of the offenses charged, taken singly, the offenses not V)eing the same within the meaning of the constitutional pro\-ision. (Carter v. McClaughry, 1S;5 l'. S., 3(55.) Jui-isdiction of ci\dl authorities. — A pay- master's clerk in the Navy is a ^'person in the naval forces of the United States"' wdthin the meaning of the act of March 2, 1863 (12 Stat., G9G, now em])odied in art. 14, A. G. N.), and if he embezzles funds of the United States he is not liable to the penalty provided in the third section of that act (now sec. 3490, R. S., relat- ing to such flenses by persons not in the mili- tary or naval forces), but is liable in a civil suit against him by the United States for the amount embezzled. (U. S. v. Bogart, 24 Fed. Cas., No. 14,616.) A district court of the United States has jurisdiction to try a person charged with having forged an obligation of the United States (a certificate of deposit issued by an Army pay- master to a soldier), mth intent to defraud, which is made an offense by section 5414, Revised Statutes (now sec. 148, Criminal Code, act j\Iar. 4, 1909, 35 Stat., 1115), although he was at the time an officer of the Army and the alleged offense was committed at a military post and ■\\'ith intent to defraud the United States and an enlisted soldier, where the ac- cused has since been discharged from the Army without any action against him having been taken by the military authorities, there being no pro\asion, either constitutional or statutory, conferring exclusive jurisdiction on courts-martial to punish such offense. (Neall t;. U. S., 118 Fed. Rep., 699.) The civil courts of the United States have concun-ent jurisdiction with courts-martial to try an officer of the Army for conspiracy to defraud the United States. (U. S. v. Hirsch, 254 Fed. Rep., 109.) The 60th (now 90th) article of war (corre- sponding to art. 14, A. G. N.) dealt solely with those in the military 8er\ace; and section 5438, ReAdsed Statutes (now sec. 35, Criminal Code, Mar. 4, 1909, 35 Stat., 1095, as amended Oct. 23, 1918, 40 Stat., 1015), dealt with any person, whether in civil life or in the military or naval service. Where an offense of this character was committed by both a civilian and a member of the military or naval service it might be highly important to try both ac- cused before the same tribunal at the same time ; hence Congi-ess provided that members of the military and naval forces could be tried before ci\'il courts of competent, jurisdiction. (U. S. V. Barry, 260 Fed. Rep., 291.) An officer of the Army is subject to trial by the civil courts of the United States for viola- tion of section 5438, Revised Statutes (now -sec. 35, Criminal Code, above cited). (Franklin v. TJ. S., 216 U. S., .559.) Jurisdiction after discharge from, the service. — See cases noted above, under pre- amljle to section 1624, as to jurisdiction over persons discharged from the Navy; see also note to article 61, A. G. N. An offense committed by a party while actually in the naval service is a "case arising in the naval forces, " within the meaning of this term as used in the fifth amendment to the Constitution; and Congress has power to authorize the trial for such an offense by a court- martial upon proceedings commenced after the connection with the service of the party charged has been severed. (In re Bogart, 3 Fed. Cas., No. 1,596.) Under this article, a party charged with embezzlement as therein provided, committed while employed in the naval service, and afterwards dismissed or discharged, is liable to be arrested and tried by a court-martial in the same manner as if he had not been dismissed or discharged. (In re Bogart, 3 Fed. Cas. No. 1,596.) Where the charges against an enrolled mem- ber of the Naval Reserve Force were laid under article 22, his case does not come within the clause of article 14 pro\'iding for the trial of offenses after discharge of the accused from the service, not\vithstanding that the specifica- tions of the charge against him could be con- strued as working a fraud upon the United States in violation of article 14. (U. S. v. MacDonald, 265 Fed. Rep., 695.) Fraud against the United States. — • Where an enrolled member of the Naval Re- serve Force attempted by the payment of money to bribe a chief boatswain's mate in the Navy to obtain illegally and unlawfully the transfer of a seaman fi'om sea duty to shore duty, such conduct could be construed as working a fraud upon the United States under this article. (U. S. i;. MacDonald, 265 Fed. Rep., 695, 698.) A conspiracy to defraud the United States does not necessarily involve a direct pecuniary loss to the United States, but the statute in- cludes any conspiracy to impair, obstruct, or defeat the lawful function of any department of the Government. (Woog v. U. S., 48 Ct. Cls., 80, 89.) The authorities will show that it is not essen- tial to charge or prove an actual financial or property loss to the Government to make a case under the statute relating to conspiracies to defraud the United States. (Woog v. U. S., 48 Ct. Cls., 80, 89, citing Hyde v. Shine, 199 U. S., 81; U. S. V. Keitel, 211 U. S., 394; Curley v. U. S., 130 Fed. Rep., 1; McGregor v. U. S., 134 Fed. Rep., 195; Benson v. Henkel, 198 U. S., 11; U. S. V. Plyler, 222 U. S., 15.) Property rights of the Government are by no means all of its rights. Financial losses to the Government are but incidents to the discharge of those functions for which the Government was established. The proper discharge of these functions is of the utmost concern, regardless of the matter of financial loss to the Treasury of the United States. (Woog v. U. S., 48 Ct. Cls., 80, 89.) Evidence in conspiracy cases. — -In con- spiracy cases, proof of the acts and declarations of alleged conspirators is not properly admis- sible when community of intent and design has not been established; but if received, the error may be cured by the subsequent introduc- tion of proof of the conspiracy existing at the time the alleged declarations were made. (22 Op. Atty. Gen., 589; see note to art. 45, A. G. N., as to evidence before courts-martial.) Testimony tending to show such a relation or understanding between alleged conspirators as would be indicative of a purpose to defraud the Government bv means of contracts for 992 The Navy. Pt. 2. REVISED STATUTES. Sec. 1624, Art. 14. public works to be given out and carried on under charge of the accused would be admis- sible before a court-martial even though it related to matters antedating the time of the particular conspiracy charged. (22 Op. Atty. Gen., 589.) Fraud not against the United States. — See note to article 8, A. G. N. Embezzlement. — See note to article 22, A. G. N., as to embezzlement of property not furnished or intended for the naval service of the United States; and see cases noted below, under this article. The word "embezzlement" is not defined by article 14, A. G. N., and consequently it is necessary to look to the offense as defined in the penal statutes relating to United States officials who are charged wdth the duty of holding and disbursing funds belonging to the Government, in order to determine of what element the act consists. (28 Op. Atty. Gen., 286, citing sees. 86-92, Criminal Code, Mar. 4, 1909, 35 Stat., 1105.1 Where a common-law offense is named in an act of Congi'ess \vithout defining it, undoubtedly the courts mil construe the statutes as applying to the offense as defined at common law; but embezzlement is not a common-law offense. No resort can be had to the definitions of em- bezzlement given in the laws of the several States, as there is no uniformity in the State statutes upon the subject. If embezzlement as defined in the Revised Statutes and now in the Criminal Code is not the offense referred to in article 14, A. G. N., what is the precise nature of the offense therein specified? (29 Op.Atty. Gen., 563, 569.) Where an assistant pajinaster in the Navy was charged with embezzlement in that he "did fail to safely keep and account for the sum " specified, hdd that this was sufficient to sustain the charge, although it was not proved that the money was actually appropriated by the accused or that he made anv particular disposition of it. (28 Op. Atty. Gen., 286.) An assistant paymaster in the Navy, charged with the duty of keeping safely money intrusted to his care, who was furnished a safe with combination locks on both the outer and inner doors for the safe-keeping of this money, and who, after remo\dng the lock from the inner door of the safe and failing to lock the outer door, left the vessel, knowing the condition of the safe, and as a result a portion of the money was lost, is chargeable with negligence equiva- lent to a criminal intent, and is guilty of em- bezzlement under the pro\'isions of article 14, A. G. N., and section 88 of the Criminal Code. (28 Op. Atty. Gen., 286.) A general principle recognized by all the authorities is that there may be such character of negligence as will take the place of criminal intent. (28 Op. Atty. Gen., 286, 296; see note to art. 43, A. G. N., as to charges and specifi- cations.) The authorities are in sharp conflict and the question is not one definitely settled by the United States courts, but there is an apparent leaning in favor of the position that there must be knowledge of the act which constitutes the offense, and an intent to commit such act, although knowledge that the act will constitute a criminal offense is not necessary, as the want of such knowledge would be only ignorance of the law. (28 Op. Atty. Gen., 286, 296.) Neither section 87 nor section 89 of the Crimi- nal Code requires an intent to defi'aud the Government, but only an intent to do the thing prohibited. (29 Op. Atty, Gen., 563, 566.) The willful use of Government funds by a pay officer of the Navy for the purpose of cashing a certificate of deposit as an accommodation to a personal friend constitutes embezzlement under the pro\'isions of article 14, A. G. N., and sections 87 and 89 of the Criminal Code (above cited). (29 Op. Atty. Gen., 563, 567.) The overpayment by a pay officer of the Navy to himself from public funds, where the officer is guilty of such negligence or indifference as to indicate a willful disregard of the duties I imposed upon him by law with respect to the safe-keeping of the moneys in his charge, is in violation of article 14, A. G. N., and sections 87 and 89 of the Criminal Code (above cited), although there may have been no criminal intent involved. (29 Op. Atty. Gen., 563, 568.) The willful withdrawing of public funds by a pay officer of the Navy for his personal use while absent from his station of duty, even though there be no intent on his part to defraud the United States and the funds withdrawn are subsequently replaced, is a violation of the provisions of article 14, A. G. N., and sections 87 and 89 of the Criminal Code (above cited), against converting pulilic funds to his own use except as authorized by law. (29 Op. Atty. Gen., 563, 568.) Embezzlement of property not furnished for naval service. — See note to article 22, A. G. N. Under the gi'ant of jurisdiction to a coui-t- martial conferred by the articles of war, pro- viding that any person in the military service who misappropriates any money of the United States "furnished or intended for the military service thereof," shall be punished, etc., sucn a court has no power under that provision to convict an officer of the Army of misappropri- ating money appropriated by Congress for the improvement of rivers and harbors. (In re Carter, 97 Fed. Rep., 496.) Most of the enumerated classes of property in the articles of war are ob\T-Ously military stores used for military purposes, and on the principle of noscitur a sociis all the classes designated fall into the same category; and this seems to be put beyond question by the words "furnished or intended for the military service thereof." The military service as used in this connection means the land forces or the Army. The fact that money appropriated for river and harbor improvements is disbursed by an officer of the Army and the work super- \ased by the engineer force in the service of the Government does not make the moneys so appropriated moneys "furnished or intended for the military service" as the words are used in the articles of war concerning embezzlement. (Carter v. McClaughry, 183 tl. S., 365, 399; see note to art. 22, A. G. N.) Pvmishment for embezzlement. — Sen- tence requiring amount embezzled to be turned over to Government officer held legal: See note to article 22, A. G. N., under "Embezzlement." 993 Sec. 1624, Art. 19. Pt. 2. REVISED STATUTES. The Navy. Art. 15. [List of persons claiming prize money. Repealed.] This article reads as follows: "Art. 1"). The coniniaiuling ollicer of every vessel in the Navy entitled to or claiming an award of prize-money shall, as soon as it may be practicable after the capture, transmit to the Navy Department a complete list of the officers and men of his vessel entitled to share, stating therein the quality of each person rating; and every commanding officer who offends against this article shall be punished as a court-martial mav direct." [See § 4615.]— fl7 July, 1862, c. 204, 8. 5, v. 12, p. 607.) It was repealed by section 13 of the Navy personnel act approved March 3, 1899 (30 Stat., 1007), which contained the following clause: "And all provisions of law authorizing the distribution among captors of the whole or any portion of the proceeds of vessels, or any prop- erty hereafter captured, condemned as prize, or providing for the pajTuent of bounty for the sinking or destruction of vessels of the enemy hereafter occurring in time of \yar, are hereby repealed." See, generally, on the subject of "Prize," sections 4613-4652, Revised Statutes. Art. 16. [Removing property from prize.] No person in tlie Navy sliall tal^e out of a prize, or vessel seized as a prize, any money, plate, goods, or any part of lier equipment, unless it be for the better preservation thereof, or unless such articles are absolutely needed for the use of any of the vessels or armed forces of the United States, before the same are adjudged laA^^ful prize by a com- petent court; but the whole, without fraud, concealment, or embezzlement, shall be brought in, in order that judgment may be passed thereon; and every person wlio offends against this article shall be punished as a court-martial may direct.— (17 July, 1862, c. 204, s. 7, v. 12, p. 607.) Art. 17. [Maltreating persons on prize.] If any person in the Navy strips off the clothes of, or pillages, or in any manner maltreats, any person taken on board a prize, he shall suffer such punishment as a court-martial may adjudge. — (17 July, 1862, c. 204, s. 8, v. 12, p. 607. Lively and Cargo, 1 Gallis, 314.) damages for personal ill usage. 15 Fed. Cas. No. 8,403.) (The Lively, Civil liability. — If captors wantonly injure the captured crew, the prize court will award Art. 18. [Returning fugitives from service.] If any officer or person in tlie naval service employs any of the forces under his command for the purpose of returning any fugitive from service or labor, he shall be dismissed from the service.— (13 IMar., 1862, c. 40, s. 1, v. 12, p. 354.) Art. 19. [Enlisting deserters, minors, etc.] Any officer who knowingly enlists into the naval service any person who has deserted in time of w^ar from the naval or military service of the United States, or any insane or intoxicated person, or any minor between the ages of fourteen and eighteen years, without the consent of his parents or guardian, or any minor under the age of fourteen years, shall be punished as a court-martial may direct. This article was reenacted to read as above by act of August 22, 1912 (37 Stat., 356). As originally enacted it read as follows: "Art. 19. Any officer who knowingly enlists into the naval service any deserter from the naval or military service of the United States, or any insane or intoxicated person, or any mi- nor between the ages of sixteen and eighteen years, without the consent of his parents or guardian, or any minor under the age of sixteen years, shall be dishonorably dismissed from the service of the United States." [See. §§ 1418, 1419.]— 1'3 Mar., 1865, c. 79, s. IS, v. 13, p. 490.) It had previously been amended by act of May 12, 1879 (21 Stat., 3), which reenacted said article, substituting the word "fifteen " for the word "sixteen" in the two places in which the latter word appeared, and substituting the words, "punished as a court-martial may di- rect," for the words, "dishonoral:)ly dismissed from the service of the United States." It was further amended, by implication, by the act of February 23, 1881, section 2 (21 Stat., 338), which changed the qualifications for en- listment in the Navy, as prescribed bv sections 1418-1420, Revised Statutes, "by striking out the word ' fifteen ' and inserting in its stead the word 'fourteen.' " Status of persons illegally enlisted. — -See notes to sections 761, 1418-1420, Revised Stat- utes, and see note above, under preamble to section 1624, subheadings, "Void enlistment" and "Voidable enlistment." See also note to article 22, A. G. N. 994 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 20. Art. 20. [Duties of commanding officers.] Every commanding officer of a vessel in the Navy shall obey the following rules: — (17 July, 1862, c. 204, s. 16, V. 12, p. 609.) First. [Men received on board.] Whenever a man enters on board, the commanding officer shall cause an accurate entry to be made in the ship's books, showing his name, the date, place, and term of his enlistment, the place or vessel from which he was received on board, his rating, his descriptive list, his age, place of birth, and citizenship, with such remarks as may be necessary. Second. [List of officers, men, and passengers.] He shall, before sailing, transmit to the Secretary of the Navy a complete list of the rated men under his command, showing the particulars set forth in rule one, and a list of officers and passengers, showing the date of their entering. And he shall cause similar lists to be made out on the first day of every third month and trans- mitted to the Secretary of the Navy as opportunities occur, accounting therein for any casualty which may have happened since the last list. Third. [Deaths and desertion.] He shall cause to be accurately min- uted on the ship's books the names of any persons dying or deserting, and the times at which such death or desertion occurs. Fourth. [Property of deceased persons.] In case of the death of any officer, man, or passenger on said vessel, he shall take care that the paymaster secures all the property of the deceased, for the benefit of his legal representa- tives. Fifth. [Accounts of men received.] He shall not receive on board any man transferred from any other vessel or station to him, unless such man is fur- nished with an account, signed by the captain and paymaster of the vessel or station from which he came, specifying the date of his entry on said vessel or at said station, the period and term of his service, the sums paid him, the balance due him, the quality in which he was rated, and his descriptive list. Sixth. [Accounts of men sent from the ship.] He shall, whenever officers or men are sent from his ship, for whatever cause, take care that each man is furnished wdth a complete statement of his account, specifying the date of his enlistment, the period and term of his service, and his descriptive list. Said account shall be signed by the commanding officer and paymaster. Seventh. [Inspection of provisions.] He shall cause frequent inspec- tions to be made, into the condition of the provisions on his ship, and use every precaution for their preservation. Eighth. [Health of crew.] He shall frequently consult with the surgeon in regard to the sanitary condition of his crew, and shall use all proper means to preserve their health. And he shall cause a convenient place to be set apart for sick or disabled men, to which he shall have them removed, with their ham- mocks and bedding, when the surgeon so advises, and shall direct that some of the crew attend them and keep the place clean. Ninth. [Attendance at final payment of crew.] He shall attend in person, or appoint a proper officer to attend, when his crew is finally paid off, to see that justice is done to the men and to the United States in the settlement of the accounts 995 Sec. 1624, Art. 22. PL 2. REVISED STATUTES. The Navy. Tenth. [Articles for the government of the Navy.] He shall cause the articles for the o;overninent of the Navy to be hung up in some public part of the ship and read once a month to liis ship's company. [Punishment for offending against this article.] Every command- ing oflicer who offends against the provisions of this article shall be punished as a court-martial mav direct. Effects of deceased persons. — Disposition of money and other effects of deceased persons in the naval service is regulated bv act of March 29, 1918 (40 Stat., 499). Manner of settling accoiants of deceased officers and enlisted men in the Navy, where amount due is less than S500, is provided for by act of May 27, 1908 (35 Stat., 373). Payment of arrears due deceased seamen: See section 274, Revised Statutes, and note thereto. Accounts of pay officer of lost vessel, fixing date of loss of missing vessel, and accoxints of seamen on lost vessel: See sections 284, 286, and 287, Revised Statutes. The regulations of the Navy concerning payments to administrators of balances due deceased seamen and marines, pa\Tnents of arrearages claimed under vvills, the wills of persons in actual service and the attestation of the same, etc., are not applicable to or binding upon the accounting officers of the Treasury Department in the settlement of naval accounts; they extend to and govern only those persons who are in the naval service. (16 Op. Atty. Gen., 494; see notes to sections 161 and 1547, Revised Statutes, as to regulations in general.) Art. 21. [Authority of officers after loss of vessel.] When the crew of any vessel of the United States are separated from their vessel by means of her wi'eck, loss, or destruction, all the command and authority given to the officers of such vessel shall remain in full force until such ship's company shall be regu- larly discharged from or ordered again into service, or until a court-martial or court of inquir}^ shall be held to inquire into the loss of said vessel. And if any officer or man, after such wreck, loss, or destruction, acts contrary to the dis- cipline of the Navy, he shall be punished as a court-martial may direct. — (17 July, 1862, c. 204, s. 14, v. 12, p. 608.) Lost or captured vessels. — See sections 1574-1575, Revised Statutes, as to pay of crews of lost or captured vessels. See also sections 284, 286, and 287, Revised Statutes, as to ac- counts of pay officer of lost vessel, fixing date Art. 22. [Offenses not specified.] All offenses committed by persons belonging to the Navy which are not specified in the foregoing articles shall be punished as a court-martial may direct. — (17 July, 1862, c. 204, s. 1, v. 12, p. 603, art. 8.) of loss of missing vessel, and accounts of seamen on lost vessel. See also note to article 20, A. G. N., as to effects of deceased persons and settlement of their accounts. Amendment to this section was made bv act of March 3, 1893 (27 Stat., 716), reading as follows: 'And fraudulent enlistment, and the receipt of any pay or allowance there- under, is hereby declared an offense against naval di8ciplin(e) and made punish- able by general court-martial, under article twenty-two of the articles for the government of the Navy; but this pro- vision shall not take effect until sixty days after the passage of this act." Nature of offenses punishable under this article. — Article 22, A. G. N., applies only to offenses " ' not specified in the foregoing articles, ' ' and which are recognized as military offenses bv the iisages of the naval service. (Smith v. Whitney, 116 U. S., 167, 183.^ This article is not intendea to confer upon a court-martial general criminal jurisdiction, but only jurisdiction over those offenses (not specified m the preceding articles of the sec- tion) which are injurious to the order and discipline of the Navy, the jurisdiction being giv^en for the purpose of preserving that order and discipline. (16 Op. Atty. Gen., 578.) The reference is to crimes created or made punishable by the common law, or by the statutes of the United States, when directly prejudicial to good order and militarv discip- line. (Carter v. McClaughry, 183 U.\S., 365, 397, construing article of war corresponding to art. 22, A. G. N.) WTiere an offense is specifically provided for in any of the articles of war prior to the 62d (corresponding to article 22, A. G. N.), the grant of jurisdiction to a court-martial to try and punish such offenses is conferred by the particular article which mentions it, and not by the general language of the 62d article pro- viding for the punishment of offenses, not capital, though not mentioned in the preced- ing articles. (In re Carter, 97 Fed. Rep., 496.) 996 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 23. A charge laid under article 22, A. G. N., would be of doubtful validity where the offense so charged is specifically provided for in one of the "foregoing articles," as in such case it could with much reason be urged that the offense is excluded by express language from article 22. (29 Op. Atty. Gen., 563, 570; see below, under "Embezzlement"; and see note to art. 43, A. G. N., as to charges and specifications in general.) Under the article of war providing that all crimes not capital, etc., which officers and soldiers may be guilty of to the prejudice of good order and military discipline, "though not mentioned in the foregoing articles," are to be taken cognizance of by courts-martial and punished at the discretion of such court, the construction would not be unreasonable if it were held that the words, "though not mentioned in the foregoing articles of war," meant "not\vithstanding they are not men- tioned," and that the article was intended to cover all crimes, whether previously enumer- ated or not. It would be going much too far to say that if a court-martial so construed the words, and sentenced for a crime previously mentioned, the sentence, when made his own by the President by approval thereof, would be absolutely void. (Carter v. McClaughry, 183 U. S., 365, 397; see note to art. 53, A. G. N.) Under every system of military law for the government of either land or naval forces, the jurisdiction of courts-martial extends to the trial and punishment of the acts of military or naval officers which tend to biing disgrace and reproach upon the service of which they are members, whether those acts are done in the performance of military duties, or in a civil position, or in a social relation, or in private business. According to precedent, it includes acts having no relation to the public service, military or civil, except so far as they tend to bring disgrace and reproach upon the former, such as making an unfounded claim for the price of a horse, or attempting to seduce a brother officer's wife during his illness, or for not attempting to vindicate his honor and reputation when accused by fellow passengers of stealing property on board a vessel while traveling on leave of absence, regardless of whether such accusation was true. (Smith v. Whitney, 116 U. S., 167, 183.) Courts-martial derive their jurisdiction and are regulated by an act of Congress in which the crimes wliich may be committed, the manner of charging the accused, and of the trial and the punishments which may be infhcted are expressed in terms; or they may get jurisdic- tion by a fair deduction, from the definition of the crime, that it comprehends, and that the legislature meant to subject to punishment one of a minor degree of a kindred character which has already been recognized to be such by the practice of courts-martial in the army and navy ser\'ices of nations, and by those functionaries in different nations to whom has been confided a revising power over the sen- tences of courts-martial. And when offenses and crimes are not given in terms or by defini- tion, the want of it may be supplied by a com- prehensive enactment such as contained in the articles for the government of the Navy, which means that courts-martial have jurisdiction of such crimes as are not specified, but which have been recognized to be crimes and offenses by the usages in the navy of all nations, and that they shall be punished according to the laws and customs of the sea. Notwithstanding the apparent indeterminateness of such a pro- Adsion, it is not liable to abuse; for what those crimes are and how they are to be punished is well known by practical men in the Navy and Army, and by those who have studied the law of courts-martial and the offenses of which the different courts-martial have cognizance. (Dynes v. Hoover, 20 IIow., 65, 82; Smith v. Whitney, 116 U. S., 167, 182.;) A court-martial can take no cognizance of the validity of a contract. (1 Op. Atty. Gen., 177, 178.) For other cases, see notes below, under this article. Embezzlement. — The charge of embezzle- ment of public funds, furnished and intended for the naval service, by a disbursing officer of the Navy, should be formulated under para- graph 9 of article 14, A. G. N.,; but there is no rule of practice which prohibits the formulation of the same charge under more than one article and as a matter of precaution it might be ad\ds- able to formulate the charge under i)oth articles 14 and 22, A. G. N. (29 Op. Atty. Gen., 563, 568-570; see also note to art. 14, A. G. N.) Under the 62d article of war (corresponding to art. 22, A. G. N.), and section 5488, Revised Statutes (now sec. 87, Criminal Code, Mar. 4, 1909, 35 Stat., 1105), providing for punishment of embezzlement by disbursing officers, held that where an officer of the Anny has been found guilty by court-martial of willfully mis- appropriating money appropriated by Congress for the improvement of rivers and harbors, the court has authority to impose a penalty both by fine and imprisonment. (In re Carter, 97 Fed. Rep., 496; see note to art. 14, A. G. N.) A charge of embezzlement in violation of the 62d article of war (corresponding to art. 22, A. G. N.), based on the action of the accused in applying to a purpose not prescribed by law large sums of public money intrusted to him for river and harbor purposes, was not the same offense as specified in article 60, subdivision 9 of the articles of war (corresponding to art. 14, par. 9, A. G. N.), because it was not embezzle- ment of money "furnished or intended for the military service. " Such embezzlement would seem to be detrimental to the service within the intent and meaning of article 62, but it is enough that it was peculiarly for the court- martial to determine whether the crime charged was ' ' to the prejudice of good order and military discipline. " (Carter v. McClaughry, 183 U. S., 365, 396, citing Swaim v. U. S., 165 U. S., 553; Smith v. Whitney, 116 U. S., 178; U. S. V. Fletcher, 148 U. S., 84. See also note to art. 14, A. G. N.). Where an officer of the Army was charged vd^th embezzlement in violation of section 5488, Revised Statutes, in" violation of the 62d article of war, held that the specified crime was not mentioned in the preceding articles, be- cause the embezzlement charged was not of money "furnished or intended for the military 997 Sec. 1624, Art. 22. Pt. 2. REVISED STATUTES. The Navy. service." (Carter v. McClaughry, 183 U.S., 365.) Where an officer of the Army without author- ily received sums of money paid liy drafted men for the purpose of obtaining substitutes, such men paying the money to him in reliance upon his oflicial station and duty as an officer of the Govermnent, and he converted same to his own use, held that the subsequent action of the military authorities in seizing the money, followed by his court-martial for embezzlement thereof and execution of the sentence adjudged by the court, constituted ratification of his un- authorized act in receiving such money; and it can not be claimed that the money was paid to him in his private capacity and that the Govermnent is required to return same to his estate. (Colman v. U. S., 38 Ct. Cls., 315.) An officer of the Army was convicted by court-martial of embezzlement and sentenced to be dismissed from the service, to forfeit all pay and allowances due or to become due, to 1)0 compelled to turn over to such officer as the commanding general should designate the sum of $18,963 (being the amount he was found guilty of embezzling), to pay a fine of $700 to the United States, and to be imprisoned for the period of seven months at such place as the commanding general shall designate, and thereafter until said fine is paid and said smn of money is turned over: Held, that the portion of said sentence that the money be turned over to the military authorities was not illegal. (Colman v. U. S., 38 Ct. Cls., 315.)_ Manslaughter.— See note to article 6, A. G. N., as to finding of manslaughter under charge of murder. Where an assault was committed on board a steamer belonging to the Navy (the vessel being at the time under way in the Thames River opposite the city of New London, Conn. ), by a coal heaver in the naval service upon a second- class fireman in the same service, from the effects of which the latter subsequently died: Held, that a naval general court-martial can, imder article 22 of section 1624, Revised Statutes, take jurisdiction of the offense as manslaughter. (16 Op. Atty. Gen., 578.) It requires no argument to show that an assault, of a character so serious as to result in the death of the person assaulted, who was also in the naval ser\dce, is an offense against; the order and discipline of the Navy, especially when among the enumerated offenses is found that of "assault and battery." (16 Op. Atty. Gen., 578.) The Articles for the Government of the Navy confer jurisdiction upon courts-martial of all crimes committed by persons belonging to the Navy which are not specified in the foregoing articles; manslaughter falls within the general denomination of a crime, and naval courts- martial have jurisdiction to punish the offense of manslaughter committed at sea on board of ships of war. (U. S. v. Mackenzie, 30 Fed. Cas. No. 18313.) Scandalous conduct tending to the destruction of good morals. — WTiere an officer is charged wth scandalous conduct tending to the destruction of good morals, it is not important to inquire whether by the rules that govern military courts the charge should be considered as made under the concluding words of the first clause of article 8, A. G. N., or under article 22; for in either view it should, imder the regulations of 1870, recognized and sanctioned by Congress, be charged as ' 'scanda- lous conduct' tending to the destruction of good morals." (Smith r. Whitney, 116 U. S., 167, 183.) For other cases, see notes to article 8, A. G. N . ; see also article 43, A. G. N., as to charges and specifications in general, and see note to article 14, A. G. N., under "Jurisdiction after discharge from the service. ' ' Conduct unbecoming an o£&cer and a gentleman. — See article 43, A. G. N., as to charges and specifications; and see notes to article 14, A. G. N., under "Discretionary punishment." Unofiicerlike and ungentlemanly conduct is one of the most indefinite and comprehensive of all the offenses mentioned in the articles of war. (7 0p. Atty. Gen., 601, 605.) The court appreciates the high requirement and purpose of the article of war pro\'iding that an officer or cadet convicted of conduct unbe- coming an officer and a gentleman shall be dis- missed from the service; but confesses a lack of knowledge of its definite limitations and also admits a superior capacity in the military court over the civil to deal with it. The same comments and admission go to the general article of war relating to offenses not specified. (McRae v. Henkes, 273 Fed. Rep., 108, revers- ing ex parte Henkes, 267 Fed. Rep., 276.) It must be confessed that in the affairs of civil life and under the rules and principles of municipal law, what we ordinarily know as fraud relates to the obtaining of a man's money and not to the refusal to pay it back. It is hard for the trained lawyer to conceive of an indictment or declaration which should allege that the defendant defrauded A or B by refusing to return to him the money which he had borrowed from him. Our legal training, the legal habit of mind as it is termed, inclines us to dissociate punishment from acts which the law does not define as offenses. That it is fraud to obtain a man's money by dishonest representations, but not a fraud to keep it afterwards by any amount of lying and deceit, is a distinction of statutory tracing. Fletcher V. U. S., 26 Ct. Cls., 541, 562; reversed on other grounds, U. S. v. Fletcher, 148 U. S., 84.) In military life there is a higher code, termed honor, which holds its society to stricter ac- countability; and it is not desirable that the standard of the Army shall come down to the requirements of a criminal code. (Fletcher V. U. S., 26 Ct. Cls., 541, 562; reversed on other grounds, U. S. v. Fletcher, 148 U. S., 84.) It may or may not be dishonorable for a retired oflicer not to pay his debts; but that may depend upon how he incurred them, and whether it is within his human possibilities to pay them. In this case, the specifications aver, in one instance, that the officer used his honorable military position to borrow money upon and assured his creditors of payment fi'om the pay which the Government allows to officers on the retired list. Certainly the Government does not give oflicers the respectability of rank and the support of retired pay to enable them to 998 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 22. prey upon their fellow citizens. Remembering the honorable military record of the claimant, the court is averse to commenting upon the details of the specifications, especially as it is not at liberty to re\ie'W the e\idence, but at the same time can not hold that refusing to pay a debt may not be conduct unbecoming an officer and a gentleman. (Fletcher v. U. S., 26 Ct. Cls., 541, 562; reversed on other grounds, U. S. V. Fletcher, 148 U. S., 84. : An officer of the Army was tried for conduct unbecoming an officer and a gentleman; it was objected that the court-martial had no juris- diction, because the charges and specifications stated no offense whatever wdtliin the rules and articles of war. or known to the military law and custom of the United States; the specifications related to the incurring by the accused of certain indebtedness; it was argued that nonpayment of debts does not justify con\dction of the charge: Held, that the specifications went further than that, and con- tained the element that the circumstances under which the debts were contracted and not paid were such as to render the officer ame- nable to the charge; and as the specifications were not objected to, and the court-martial had jurisdiction, errors in its exercise, if any, can not be reviewed by the ci\dl courts in a suit by the accused officer for the pay of the office from which he had been dismissed pursuant to sentence of the court-martial. (U. S. v. Fletcher, 148 U. S.. 84.) "Of course, the failui'e to pay debts and the circumstances under which the debts were contracted, when their payment is postponed or neglected, may constitute conduct unbe- coming an officer. But here the debts have been paid ; and they were not so great in amount or so many as to indicate utter recklessness when it is considered that Lieut. Burt is a married man and, necessarily, had the expense of a family upon him in addition to that at- tendant upon his sea service. I am bound to say that the specifications which were handed to me as to the immorality involved in his re- lation to debts seem to be. many of them, strained, and I can not think that it is just to eliminate Mm from the naval service for such delinquency." (Action of President Taft, case of Lieut. Charles P. Burt, U. S. N., re- ported not morally qualified for promotion, file 26260-1392:15, Jan. 2, 1912; see note to sec. 1456, R. S.) The charge of conduct unbecoming an of- ficer and a gentleman specified in the articles of war is not properly limited to only offenses of the grossest and basest character, oi such a natm-e as to render the guilty party a moral and social outlaw. It should not be necessary to prove that an individual is a moral mon- strosity in order to demonstrate Ms unfitness to be a trusted officer of the Army. (18 Op. Atty. Gen., 113, 117.) Undoubtedly, charges of mere indecorum should not be made the basis of prosecutions under the article of war specifying conduct unbecoming an officer and a gentleman. The punishment annexed to a con\iction under that article clearly indicates that prosecutions should be limited to the more serious classes of offenses. But between the grossest offenses of which an officer may be guilty and which are not specially enumerated in the articles of war, and those of a character simply prejudicial to good order and military discipline, such as are apparently contemplated by the 62d article of war (corresponding to art. 22, A. G. N.), there are intervening grades of offenses, many of wMch are in every proper sense of the words unbecoming an officer and a gentleman, and the commission of wMch by any person is a sure indication that he is unfitted to hold an office of trust and honor in the military service. (18 Op. Atty. Gen., 113, 118.) Conduct imbecoming an officer and a gentle- man is not the same offense as conspiring to defraud the Umted States, or causing false and fraudulent claims to be made against the Umted States, although to be guilty of the latter charges involves being gmlty of the former. (Carter v. McClaugMy, 183 U. S., 305, 395.) The same conduct constituting an offense elsewhere provided for in the articles of war may also warrant a finding of guilty by a court- martial under the article providing that ' 'any officer who shall be con\acted of conduct un- becoming an officer and a gentleman shall be dismissed from the ser\ice."' (In re Carter, 97 Fed. Rep., 496.) It is not possible for an officer to do any act pumshable by the known laws of the land, how- ever foreign that act may be to Ms duties or immediate relations as a soldier, which shall not be cogmzable by court-martial . To commit a crime of any sort is, to say the least of it, in general, unofficerKke and ungentlemanly con- duct. (6 Op. Atty. Gen., 413, 415.) The plea of autrefois acquit, averring a for- mer trial and acquittal for manslaughter in the supreme court of a State, and that said charge was sustainable only by the same evidence as must be used to sustain the charge of unofficer- like or ungentlemanlike conduct, is not a bar to the proceedings before an Army court- martial to punish the accused for the latter offense. The two offenses are altogether dif- ferent. (3 Op. Atty. Gen., 749.) The fact that tM'ee specifications under the charge of \dolating the 95th article of war (con- duct unbecoming an officer and a gentleman) were identical with those under the charge of violating the 96th article (offenses not specified) did not operate to put the accused twice in jeopardy for the same offense. As a question of pleading it is quite clear that the two charges are not one and the same offense. It was neces- sary to establish a fact under one charge not required under the other; conviction could not be had on the first charge unless it be proven that the accused was an officer; _ no such proof was needed under the general article. Further- more, that was a question of procedure, not of jurisdiction, wMch the court-martial having obtained jurisdiction was competent to decide. (McRae v. Henkes, 273 Fed. Rep., 108.) ^Miere the court finds upon certain specifica- tions that the accused was guilty of presenting to the Secretary of War a wTitten indorsement contaimng certain specific statements which the accused knew to be false, and of making such statements for the purpose and with the intention of deceiving the Secretary of War, 999 Sec. 1624, Art. 22. Pt. 2. REVISED STATUTES. The Navy. it should haA-e found him guilty of conduct un- becoming an oliicer and a gentleman, as charged, and not merely of conduct to the prejudice of good order and military discipline. Untruthful statements made by a high military officer to the official head of the War Depart- ment have not been regarded in the past as any less of an offense than one unbecoming an officer and a gentleman. (18 Op. Atty. Gen., 113; see art. 8, A. G. N., first paragraph.) Conduct to the prejudice of good order and discipline. — See note above, under "Embezzlement"- and see note to article 8, A. G. N., under "Drunkenness"; see also note below, under "Jurisdiction of courts-martial concurrent •with civil courts." The offense committed by an enlisted man of the Army on guard duty at the United States jail in the District of Columbia, in maliciously and \nth intent to kill assaulting a civilian prisoner confined in said jail, was clearly one to the prejudice of good order and military dis- cipline in violation of the 62d article of war. Shooting with intent to kill is a civil crime, but shooting by a soldier of the Army standing guard over a prison with intent to kill a prisoner confined therein is not only a crime against society but an atrocious breach of military dis- cipline, although the prisoner who was shot at was not himself connected with the military service. The offense was not simply an assault \yiih intent to kill, but an assault by a soldier on duty with intent to kill a prisoner confined in a jail over which he was standing guard, such shooting being in direct violation of orders under which he was acting. (Ex parte Mason, 105 U.S., 696.) WTien the act charged as * ' conduct to the prej- udice of good order and military discipline ' ' ' is actually a crime against society which is punishable by imprisonment in the peniten- tiary, an Army court-martial is authorized to inflict that kind of punishment under the 97th article of war providing that "no person in the military service shall, under the sentence of a court-martial, be punished by confinement in a penitentiary, unless the offense of which he may be convicted would, by some statute of the United States, or by some statute of the State, Territory, or District in which such offense may be committed, or by the common law, as the same exists in such State, Territory, or District, subject such convict to such punishment." The act done is a civil crime and the trial is for that act; the proceedings are had in a court- martial because the offender is personally amenable to that jurisdiction and what he did was not only criminal according to the laws of the land but prejudicial to the good order and discipline of the Army to which he belonged. (Ex parte i^Iason, 105 U. S., 696, 700.) Fraudulent enlistment. — See notes to sec- tions 761, 1418-1420, Revised Statutes; and see note above, under preamble to section 1624, subheadings " Void enlistment" and "Voidable enlistment"; and see article 19, A. G. N. Where a minor under the required age did nothing but attempt to enlist, receiving no pay or allowances, he is not guilty of the offense of fraudulent enlistment denounced by the articles of war. (Hoskins v. Pell, 239 Fed. Rep., 279.) Whether a minor charged with fraudulent enlistment is innocent of the charge made against him, or whether he, a boy less than 17 years old, should be punished for an offense possibly committed under impulses that were patriotic, are matters for the exclusive con- sideration and action of the court-martial. (Ex parte Foley, 243 Fed. Rep., 470.) The civil courts should not interfere by habeas corpus to discharge a minor under 18 years of age who has been enlisted in the naval service without the consent of his parents or guardian if at the time of the presentation of the petition for the writ the minor is under arrest and held for trial by court-martial on a charge of desertion or fraudulent enlistment or other charge cognizable by a naval court. (Dilling- ham V. Booker, 163 Fed. Rep., 696.) The crime of fraudulent enlistment is exclu- sively a military or naval offense, triable and punishable only by comt-martial, and it has been found necessary so to legislate in order to maintain the discipline and efficiency of the military and naval establishments of the Gov- ernment. (Dillingham v. Booker, 163 Fed. Rep., 696.) A minor under 18 who fraudulently enlists in the Navy is nevertheless both de facto and de jure in the Na^^ until discharged therefrom by operation of law; and while he is such a seaman he is subject to the rules and regulations of the Navy and liable to be tried and punished for any infraction of the law relating thereto. (Dillingham v. Booker, 163 Fed. Rep., 696. But see Hoskins v. Pell, 239 Fed. Rep., 279, holding that the enlistment of a minor below the age at which he could legally be enlisted, even with the consent of his parents or guardian, was not merely voidable but void ab initio.) Where a minor under 18 years of age who enlisted without the consent of his parents was, before they obtained his release on habeas corpus, arrested by the military authorities for fraudu- lent enlistment, the question whether he was so arrested before or after the issue and ser\dce of the writ is immaterial with respect to the right of the military authorities to punish him for Buch military offense; and the jurisdiction of the military authorities could not be displaced by the act of the court in issuing a writ of habeas corpus. (Ex parte Foley, 243 Fed. Rep., 470.) The fact that a person was enlisted in the Navy before reaching the required age, and in violation of the statute requiring consent of his parents or guardian, does not render his enlist- ment void; and he is subject to arrest and punishment for desertion or other infraction of the rules and regulations of the Navy, and can not be discharged on writ of habeas corpus pend- ing proceedings against him therefor. (Ex parte Rock, 171 Fed. Rep., 240. Note.— In this case the court considered the following provision in the annual naval appropriation act which had not been before the courts in prior cases: "No part of this appropriation shall be expended in recruiting seamen, ordinary sea- men, or apprentice seamen, unless a certificate of birth or written evidence other than his own statement, satisfactory to the recruiting officer, showing the applicant to be of the age required by naval regulations, shall be presented with the application for enlistment," which certi- 1000 The Navy. Pt. 2. REVISED STATUTES. Sec. 1624, Art. 22. ficate or statement was not furnished by the applicant in this case.) Where a minor who falsely stated his age when enlisting in the Army was arrested for fraudu- lent enlistment in ^dolation of the articles of war, after serA-ice of a writ of habeas corpus sued out by his mother but before the hearing thereon, held that he would not be taken from the custody of the military' authorities. (U. S. v. WilUford, 220 Fed. Rep., 291.) The ci\il courts will not, on habeas corpus brought by the parent of a minor oA'er 16 and under 18 years of age to avoid his enlistment in the National Guard while in the ser\'ice of the United States, command his immediate sur- render by the military authorities where by reason of his enlistment he committed a military offense; but will allow his retention by the military authorities so that he may be punished by the proper military tribunal for the military offense. (Hoskins v. Dickerson, 239 Fed. Rep., 275.) Jurisdiction of courts-martial concur- rent with, civil courts.— An officer may be tried by court-martial for the military relations of an act, after ha\ing been tried by the ci^^.l authorities of a state for the ci\il relations of the same act. In such case the offender is punishable both as a citizen, subject to the municipal law of the place, and also as a soldier or officer subject to the military law of _ the United States. Such double accountability to two different jurisdictions, and the different and double punishments for the same act, making two different offenses, is settled to be lawful by the decisions of the Supreme Court of the United States. (6 Op. Atty. Gen., 506, following 6 Op. Atty. Gen., 413, and citing Moore v. Illinois, 14 How., 20; Fox v. Ohio, 5 How., 434, 435; U. S. v. Marigold, 9 How., 569.) The jm-isdiction of military' tribunals is not exclusive in time of peace and in territoiy where the supremacy of the United States is recog- nized and the relations between the local goA'ernment and the National Government normal, and where the jurisdiction of the local ci\'il courts is not disturbed. But when the armies of the United States are in hostile territory, and engaged in actual warfare, the jurisidction of such tribunals over offenses by persons in the militarj^ ser\-ice is exclusive; and this applies to the condition which existed in the Philippine Islands during the insurrec- tion. (24 Op. Atty. Gen., 570, 574.) \Miere a United States soldier killed a fellow soldier during a military encampment, and on being surrendered to the ci\il authorities of the State was prosecuted for murder and acquitted, such acquittal, though a final determination of his innocence of murder and of each lesser of- fense necessarily included therein, was no bar to his subsequent military arrest and trial by a general court-martial for "conduct to the prej- udice of good order and military discipline" in violation of the articles of war, though based on the same act. (In re Stubbs, 133 Fed. Rep., 1012.) Although the act prohibited in the specifica- tion of the charge upon which the soldier was brought to trial before a court-martial was identical with the act alleged in the information for murder upon which he was acquitted by the State court, the elements constituting the offense charged are radically different. After ha-vdng surrendered him to the civil authorities, his military superiors could not lawfully deal with him for murder, manslaughter, or a criminal assault, considered as a crime against society in general ; but it is equally true that the civil court had no jurisdiction to adjudicate any question with respect to the soldier's conduct as a soldier. Although the same act was specified, the gist of the offense charged was unsoldierly conduct by a soldier, subversive of military discipline. For that offense the prisoner continued to be amenable to military law notwithstanding the acquittal by the State court. (In re Stubbs, 133 Fed. Rep., 1012.) The surrender of the soldier to the civil authorities did not have the effect to absolve him from his obligation under the terms of his enlistment; nor to divest his superior military officers of their authority to proceed against him for the military offense. (In re Stubbs, 133 Fed. Rep., 1012.) It is well settled that an acquittal or convic- tion in a State court is not a good defense in the courts of the United States; but the rule is different where both courts derive their power fi'om the same sovereignty. (U. S. v. Block, 262 Fed. Rep., 205, holding that acquittal by court-martial is bar to trial in Federal civil court.) An anny general court-martial may take cognizance of all crimes not capital committed against public law by an officer or soldier of the Army, within the limits of the territorj'^ within which he is senang; and while this jurisdic- tion is not exclusive but only concurrent with that of the ci\dl courts, if a court-martial first acquires jurisdiction its judgment can not be disregarded by the civil courts for mere error or for any reason not affecting the jurisdiction of the court rendering it. (Grafton v. U. S., 206 U. S., 333, 348, holdingthat acquittal of a soldier by Army court-martial was a bar to his trial by the courts of the Philippine Islands for the same offense, though called by a differ- ent name, both courts having derived their jurisdiction from the same sovereignty.) Any possible conflict as to jurisdiction between civil and military courts can be ob- viated, either by withholding from courts- martial all authority to try officers or soldiers for crimes prescribed by the civil power, leaving the civil tribunals to try such offenses, or by investing courts-martial with exclusive jurisdiction to try' such officers and soldiers for all crimes not capital. (Grafton v. U. S., 206 U. S., 333, 352.) The 62d article of war (relating to offenses not specified) does not vest nor purport to vest exclusive jurisdiction in courts-martial; and civil courts have concurrent jinisdiction over all offenses committed by a military officer which may be punished under the pro\isions of that article. (Franklin v. U. S., 216 U. S., 559.) The articles of war contain no direct and clear expression of a purpose on the part of Con- gress, conceding for the sake of the argument that autlority exists under the Constitution to do so, to bring about, as the mere result of a 1001 Sec. 1624, Art. 24. Pt. 2. REVISED STATUTES. The Navy. Ships of war enjoy the full rights of exterri- toriality in foreign ports and territorial waters. (8 0p. Atty. Gen., 73.) For other cases, see note to article 6, A. G. N., as to jurisdiction of murder; note to Constitu- tion, Article I, section 8, clause 14, under "V. Jurisdiction of civil courts," and note to fifth amendment, under "II. Protection against double jeopardy"; see also note to arti- cle 14, A. G. N., under "Jurisdiction of civil authorities." Piinishinent for violation of article 22. — See note above, under "Embezzlement"; and see note to article 14, A. G. N., under "Dis- cretionary punishment"; see also notes to articles 8 and 63, A. G. N. declaration of war, the complete destruction of State authority and the extraordinary extension of military power which would be involved in making the jurisdiction of Army courts-martial exclusive of State authority in the case of murder and other offenses committed by per- sons in the military service. (Caldwell v. Parker, 252 U. S., 376, 385.) It can not be disputed that the effect of this grant was to confer upon courts-martial, as to offenses inherently military, an exclusive authority to try and punish. In so far, how- ever, as respects acts which were criminal under the State law, but which became subject to military authority because they could also be treated as prejudicial to good order and military discipline, a concurrent power necessarily arose. (Caldwell v. Parker, 252 U. S., 376, 381.) Art. 23. [Offenses committed on shore.] All offenses committed by persons belonging to the Navy while on shore shall be punished in the same manner as if they had been committed at sea. — (17 July, 1862, c. 204, s. 1, v. 12, p. 603, art. 9.) Art. 24. [Punishments by order of commander.] No commander of a vessel shall inflict upon a commissioned or warrant officer any other punishment than private reprimand, suspension from duty, arrest, or confinement, and such suspension, arrest, or confinement shall not continue longer than ten days, unless a further period is necessary to bring the offender to trial by a court- martial; nor shall he infhct, or cause to be inflicted, upon any petty officer, or person of inferior rating, or marine, for a single offense, or at any one time, any other than one of the following punishments, namely: First. Reduction of any rating estabhshed by himself. Second, Confinement, with or \snthout irons, single or double, not exceeding ten days, unless furtlier confinement be necessary, in the case of a prisoner to be tried by court-martial. Third. Solitary confinement, on bread and water, not exceeding five days. Fourth. Solitary confinement not exceeding seven days. Fifth. Deprivation of liberty on shore. Sixth. Extra duties. No other punishment shall be permitted on board of vessels belonging to the Navy, except by sentence of a general or summary court-martial. All punish- ments inflicted by the commander, or by his order, except reprimands, shall be fully entered upon the ship's log. — (17 July, 1862, c. 204, s. 1, v. 12, p. 603, art. 10. Wilkes v. Dinsman, 7 How., 89. Dmsman v. Wilkes, 12 How., 390.) Deck courts for the punishment of minor of- fenses were authorized by act of February 16, 1909 (35 Stat., 621), amended by acts of Ausiust 29, 1916 (39 Stat., 586), and October 6, 1917 (40 Stat., 393). "Hereafter all officers of the Navy and Marine Corps who are authorized to order either general or summary courts-martial * * * shall have the same authority to inflict minor punishments as is conferred by law upon the commander of a naval vessel." (Act Aug. 29, 1916, 39 Stat., 586.) "The use of irons, single or double, as a form of punishment in the Navy of the United States is hereby abolished, except for the purposes of safe custody or when part of the sentence imposed by a general court- martial." (Act May 13, 1908, 35 Stat., 132.) "The use of irons, single or double, is hereby abolished, except for the purpose of safe custody or when part of a sentence imposed by a general court-martial." (Act Feb. 16, 1909, sec. 8, 35 Stat., 621.) "When * * * empowered by the Sec- retary of the Navy to order summary courts-martial, the commanding officer of a naval hospital or hospital ship shall be empowered to * * * inflict the pun- ishments which the commander of a naval 1002 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 24. vessel is authorized by law to inflict, upon all enlisted men of the naval service attached thereto, whether for duty or as patients." (Act Aug. 29, 1916, 39 Stat., 586.) '■'When a force of marines is embarked on a naval vessel, or vessels, as a separate organization, not a part of the authorized complement thereof, the authority and powers of the officers of such separated organization of marines shall be the same as though such organization were serving at a navy yard on shore, but nothing here- in shall be construed as impairing the paramount authority of the commanding officer of any naval vessel over the vessel under his command and all persons em- barked thereon." (Act Aug. 29, 1916, 39 Stat., 586.) Necessity of commander's power. — It is a matter of most common information that it is essential to the efficiency and discipline of the Navy that a commanding officer should have the right and the power, promptly, by arrest and otherwise, to enforce obedience to orders and fidelity to duty. To this end article 24, A. G. N . , recognizes the right of such commander to reprimand, suspend from duty, arrest, or confine the delinquent inferior officer; and recognizing such right puts limitations thereon. That such a power in a connnanding officer is essential is too plain for argument. (19 Op. Atty. Gen., 472, 474.) Civil liability for abuse of power.— The almost despotic power \\dth which the law clothes the commanding officer for the time being, and which is absolutely necessary for the safety and efficiency of the ship, make it more especially liis duty not to abuse it. And if, from maUce to an individual, or vindictive feeling, or a disposition to oppress, he inflicts punishment beyond that which in his sober judgment he would have thought necessary, he is lialile to an action for damages. If the pimishment inflicted was forbidden by law or beyond the power which the law confided to him, he would be liable whatever were his motives. (Dinsman v. Wilkes, 12 How., 390, 403.) It is not to be lost sight of, that while the com- manding officer is to be protected under mere errors of judgment in the discharge of his duties, yet he is not to be shielded from respon- sibility if he acts out of his authority or juris- diction, or inflicts private injury, either from malice, cruelty, or any species of oppression founded on considerations independent of public ends. The hiunblest seaman or marine is to be sheltered under the aegis of the law from any real wrong, as well as tlie highest in office. (Wilkes V. Dinsman, 7 How., 89, 123, 129.) An action by a marine against his com- manding officer for punishment inflicted upon him for refusing to do duty in a foreign port, upon the ground that the time of his enlistment had expired and that he was entitled to his discharge, is a case of much delicacy and im- portance as regards our naval service. For it is essential to its security and efficiency that the authority and command confided to the officer, when it has been exercised from proper motives, should be firmly supported in the courts of justice as well as on shipboard. But at the same time it must be rememl^ered that the nation would be equally dishonored if it permitted the humblest individual in its service to be oppressed and injured by his commanding offi- cer from malice or ill will, or the wantonness of power, without gi^■ing him redress in the courts of justice. (Dinsman r. Wilkes, 12 How., 390, 402.) Discretion of commander.— The, com- manding officer, in causing punishments to be infficted upon a seaman for disobedience of orders, was acting as a public officer invested with certain discretionary powers, and can not be made answerable by civil suit for any injury when acting within the scope of his au- thority and not influenced by malice, con-up- tion, or cruelty. His position is quasi judicial. In order to hold him civilly liable for damages, it is not enough to show that he committed an error in judgment, but it must have been a willful and malicious error. (Wilkes v. Dins- man, 7 How., 89, 123, 129.) The commanding officer is the judge of the degi'ee of punishment necessary to suppress a spirit of disobedience and insubordination; and he is not liable to an action for a mere error in judgment, even if the jury suppose that milder measures would have accomplished his object. But at the same time he is bound never to inflict any severer punishment than he conscientiously believes to be necessary to maintain discipline and due subordination in his ships. (Dinsman v. Wilkes, 12 How._, 390.) As regards the degree of punishment, it was the duty of the commanding officer to maintain proper discipline and order among the officers and men under his command, and if a spirit of disobedience and insubordination mani- fested itself in the squadron, he was bound to suppress it ; and he might use severe measures for that purpose, if he deemed such measures necessary. And if in his judgment the con- tinued refusal of the plaintiff to do duty made it necessary to confine him on shore rather than on shipboard, in order to reduce him to obe- dience, or necessary to deter others from a like offense, he was justified in so doing; and while he acted honestly and from a sense of duty, and with a single idea to the welfare of the service in which he was engaged, the law protects him. He is not liable to an action for a mere error in judgment. (Dinsman v. Wilkes, 12 How., 390, 403.) Repeated disobedience of ordets. — By the Articles for the Government of the Navy the commanding officer is authorized to cause certain punishments to be infficted upon an enlisted man for scandalous conduct without a court-martial. Every successive disobedience of orders is a fresh offense and subjects the offender to additional punishment. It has been settled in a penal prosecution that a like act when prohibited, if distinctly repeated even on the same day, constitutes a second offense and incurs an additional penalty. (Wilkes r. Dinsman, 7 How., 89, 128.) The commanding officer has not only a right to cause corporal punishment to be inflicted but to resort to any reasonable measures necessary to insure submission. He had, therefore, a right to imprison the refractory party on shore, if 54641°— 22- -64 1003 Sec. 1624, Art. 24. Pt. 2. REVISED STATUTES. The Navy. done without malice. (Wilkes v. Dinsman, 7 How., 89; see art. 49, A. G. N., as to prohibited punishments.) Suppression of mutiny. — See note to article 6, A. G.N. Commander Alexander Slidell Mackenzie, U. S. N., commanding the U. S. Brig Sorners, was tried by court-martial and acquitted of the charge of murder, three specifications, alleging that he executed by hanging, "without form of law," Philip Spencer, acting midshipman; Samuel Cromwell, boatswain's mate; and Elisha Small, seaman, on board the said brig Sorners, December 1, 1842. v( 'ourt-Martial Rec. No. 844, vol. 46, 1843, Navy Dept.;) The opinion of the court of inquiry in the same case was as follows: "The court are therefore of opinion: That, a mutiny had been organized on board the United States brig Sorners, to murder the officers, and take possession of the brig. "That Midshipman Philip Spencer, Boat- swain's Mate Samuel Cromwell, and Seaman Elisha Small were concerned in, and guilty of, such mutiny. "That, had not the execution taken place, an attempt would ha^•e been made to release the prisoners, murder the officers, and take com- mand of the brig. "That such attempt, had it been made in the night, or during a squall, would, in the judg- ment of the court, from the number and charac- ter of the crew, the small size of the brig, and the daily decreasing physical strength of the officers, occasioned by almost constant watch- ing, and broken slumbers, have been successful. "That Commander Mackenzie, under the circumstances, was not bound to risk the safety of his vessel, and jeopard the lives of the young officers and the loyal of his crew, in order to secure to the guilty the forms of trial, and that the immediate execution of the prisoners was demanded by duty, and justified by necessity. "The court are further of opinion: That throughout all these painful occurrences, so well calculated to disturb the judgment, and try the energj^, of the bravest and most ex- perienced officer, the conduct of Commander Mackenzie and his officers was prudent, calm, and firm, and that he, and they, honorably per- formed their duty to the service and their coun- try (Couit-Martial Rec. No. 844, vol. 46, 1843, Navy Dept.) Reduction in rating.^The act Of March 2, 1855, establishing sunmiary courts-martial in the Navy, did not interfere with the power of the commander of a vessel, as it existed prior to that act, to reduce seamen to inferior rate for incompetency. (10 Op. Atty. Gen., 168.) The Articles for the Government of the Na\'y (Apr. 23, 1800, 2 Stat., 49, art. 30) forbade a commanding officer who had received any petty officer or man "turned over from any other vessel " td rate him in a lower or worse station than that in which he formerly served. That prohibition placed a limit on the authority of commanding officers to punish their seamen, but was a recognition by ( ongress of the general discretion of the commander to disrate petty officers and seamen not protected by the legis- lative prohibition referred to. (10 Op. Attv. Gen., 168.) A seaman on board a vessel of the Navy, having received his rating iinder a former commander of that vessel, the actual commander, upon a report to him of the man's incompetency to perform the duties of a seaman, did not consider himself authorized to disrate him, but repre- sented the case to the department, and by the authority of the department the man was reduced from the rate of seaman to that of ordinary sea- man. It was contended in the latter's behalf that the law creating summary courts-martial and giving them authority to disrate as a punish- ment was intended to repeal and exclude any other authority to disrate. The conclusion of the Attorney General was as stated above. (10 Op. Atty. Gen., 168.) See article 30, A. G. N., as to punishments by summary courts-martial, and article 31, A. G. N., as to disrating for incompetency. Reprimand. — See note to section 417, Re- \'ised Statutes, under "Power of Secretar}?- to reprimand subordinates. ' ' A pri^'ate reprimand administered by the commander in chief of a fleet to a naval officer in accordance with the recommendation of a court of inquiry, as a punishment for an offense such as neglect of duty, is no bar to a subse- quent trial of such officer by a general court- martial for the same offense. (25 Op. Attv. Gen., 623.) The fact that article 24, A. G. N., pro forma recognizes a private reprimand as a "punish- ment" does not affect the conclusion that a proceeding before a court of inquiry which recommended that a private reprimand be ad- ministered to an officer by the commander in chief of the fleet did not constitute a ' ' trial " and did not expose the officer to the peril of punish- ment so as to bar subsequent trial of the officer by court-martial . Said reprimand was not real punishment. (25 Op. Atty. Gen., 623.) The jeopardy of the law means a real peril, originally of life or limb, and always of sub- stantial punishment or penalty. There must be a trial upon an indictment for an offense, or upon some equivalent charge and presentment, as by court-martial, submitting a definite issue and involving conviction or acquittal. (25 Op. Atty. Gen., 623.) Disapproval of the conduct and censure by the Secretary of the Navy of a subordinate officer for misconduct will not prevent a court- martial proceeding upon the same charge. (28 Op. Atty. Gen., 622.) The Secretary of the Navy may, \\ithin his discretion, when he believes it for the good of the service, send communications to subordi- nate officers which may be in the nature of a reprimand. This right is necessarily vested in him as the chief officer of that department; but such communications can not be regarded in the nature of a punishment as defined in the regulations. Regardless of whether a proceed- ing under the Navy Regulations constitutes a jeopardy -within the meaning of the fifth amend- ment to the Constitution, it is apparent that the action of the Secretary of the Navy in \\Titing a letter to an officer censuring him for misconduct can not be regarded as a jeopardy, there having been nothing more than a private investigation of the matter by the commandant of the navy yard, and a report thereon to the Secretary of 1004 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 26. the Navy. (28 Op. Atty. Gen., 622. See note to Constitution, fifth amendment; and note to article 43, A. G. N.) Arrest not har to subsequent trial. — A plea iDefore a court-martial of a former arrest and discharge is bad ; a former trial only is a defense. A mere arrest, even in cases punishable in life or limb, is not considered as constituting the jeopardy intended by the fifth amendment to the Constitution. To give the accused the benefit of the common-law maxim from which is derived our constitutional amendment, it is necessary that a man shall have been actually acquitted or convicted on a former trial, and the record of this fact must be produced. (1 Op. Atty. Gen., 294.) It is not free from legal censure to bring an officer to trial by court-martial after the charge against him has been knowingly passed over, although the officer in such case can not success- fully plead in bar of trial the fact that he had been pre\iously arrested for the same offense. (1 Op. Atty. Gen., 294.) A naval court-martial loses jui'isdiction to try for an offense committed by an enrolled mem- ber of the Naval Reserve Force during active service in the Navy, by discharging the offender from arrest ^^■ithout charges having been pre- ferred against him, and by his subsequent release from active duty. {JJ. S. v. Warden or Keeper of Naval Prison, 265 Fed. Rep., 787; see note to preamble to section 1624 as to juiis- diction over Naval Reserve Force.) An officer was placed under arrest on his vessel for drunkenness and neglect of duty. Later, on the same day, he was, by order of the rear admiral, restored to duty to await an opportunity to investigate the case. Subse- quently he was placed under arrest for trial, and served with copy of charges and specifications, and a court-martial was convened. The accused proceeded to trial without objection; subse- quently, he claimed the salary of his office on the ground that he was illegally dismissed by sentence of said court, as his first arrest was an expiation of the offense and a bar to trial pur- suant to existing regulations of the Navy: Held, that his first arrest and temporary confinement were not intended as a punishment, but as a reasonable precaution for maintenance of good order and discipline aboard, and did not bar his trial, notwithstanding the existing regula- tions which pro\T-ded that the arrest and restoration to duty of a person in the Navy, for an offense, shall be a bar to further proceedings against him for that offense. (Bishop v. U. S., 197 U. S., 334; 38 Ct. Cls., 473.) See note to article 43, A. G. N., as to arrest for trial. Scandalous conduct. — See note to article 8, A. G. N. Other punishments on naval vessels. — See note to Constitution, Article I, section 8, clause 14, imder "IV. Jui'isdiction of courts- martial," subheading, "Courts-martial other than naval can not convene on vessels of regu- lar Navy." Under this article it was held that naval mihtia officers could not impose pvmishmenta on men belonging to their organization, while cruising on board a vessel of the regular Navy, nor could naval militia officers convene Staite courts-martial on such vessels. (File 3973-107, Feb. 16, 1915). Thereafter, by act of August 29, 1916 (39 Stat., 598), naval militia courts- martial were authorized to convene on board naval vessels; said enactment, however, was repealed by naval appropriation act of July 1, 1918 (40 Stat., 708), which latter act repealed all laws relating to the Naval Militia. See note to Constitution, Article I, section 8, clause 16, as to authority of commanding officer of a naval vessel over members of the Naval Militia participating ^^ith the Regular Navy in cruises for the purpose of training and instruc- tion. Art. 25. [Punishment by officer temporarily commanding.] No officer who may command by accident, or in the absence of the commandmg officer,, except when such commanding officer is absent for a time by leave, shall inffict any other punishment than con&iement. — (23 Apr., 1800, c. 33, s. 1, v. 2, p. 49, art. 30.) Art. 26. [Summary courts-martial ; convening authority.] Summary courts- martial may be ordered upon petty officers and persons of inferior ratmgs, by tlie commander of any vessel, or by the commandant of any navy-yard, naval station, or marine barracks to which they belong, for the trial of offenses whicli such officer may deem deserving of greater punishment than such conmaander or commandant is authorized to inflict, but not sufficient to require trial by a general court-martial. — (2 Mar., 1855, c. 136, s. 4, v. 10, p. 627. 15 July, 1870, c. 295, s. 14, V. 16, p. .334.) By act of August 29, 1916 (39 Stat., 586), it was provided that "summary courts-martial may be ordered upon enlisted men in the naval ser\'ice under his command by the commanding officer of any brigade, regi- ment, or separate or detached battalion-, or other separate or detached command, and, when empowered by the Secretary of the Navy, by the commanding officer or officer in charge of any command not specifically mentioned in the foregoing: Provide}, That when so empowered by the Secre- tary of the Na^'y to order summarv courts- martial, the commanding officer ol a naval hospital or hospital ship shall be empow- ered to order such courts * * " 1005 Sec. 1624, Art. 30. PL 2. REVISED STATUTES. The Navy. "Hereafter all officers of the Navy and Marine Corps who are antliorized to order either general or summary courts-martial may order deck courts upon enlisted men under their command * * * when so empowered by the Secretary of the Navy to order summary courts-martial, the com- manding: officer of a naval hospital or hos- pital sliip shall be empowered to order * * * deck courts * * * upon all enlisted men of the naval service attached thereto, whether for duty or as patients." (Act Aug. 29, 191fi, 39 Stat., 586. Deck courts were created by act Feb. 16, 1909, 35 Stat., 621, amended by acts Aug. 29, 1916, 39 Stat., 586, and Oct. 6, 1917, 40 Stat., 393.) See note to article 38, A. G. N., as to convening of general courts-martial. Department in time of war or emergency as part of the naval forces of the United States. (Act Oct. 6, 1917, 40 Stat., 393.) See note to article 39, A. G. N., as to constitu- tion of general courts-martial. Art. 27. [Constitution of summary courts-martial.] A summary court- martial shall consist of three officers not below the rank of ensign, as members, and of a recorder. The commander of a ship may order any officer under his command to act as such recorder. — (2 Mar., 1855, c. 136, s. 6, v. 10, p. 628.) Commissioned officers of the Naval Reserve Force. Marine Corps Reserve, Coast Guard, Lighthouse Service, Coast and Geodetic Survey, and Public Health Service are empowered to serve on naval courts-mar- tial when actively serving under the Navy Art. 28. [Oaths of members and recorder.] Before proceeding to trial the members of a summary court-martial shall take the following oath or affirma- tion, which shall be administered by the recorder: "I, A B, do swear (or affirm) that I will well and truly try, without prejudice or partiaUty, the case now de- pending, according to the evidence which shall be adduced, the laws for the government of the Navy, and my own conscience." After which the recorder of the court shall take the following oath or affirmation, which shall be admin- istered by the senior member of the court: ''I, A B, do swear (or affirm) that I will keep a true record of the evidence which shall be given before this court and of the proceedings thereof." — (2 Mar, 1855, c. 136, s. 5, v. 10, p. 628.) See note to article 40, A. G. N., as to oaths of general courts-martial. Art. 29. [Testimony before summary courts-martial.] All testimony before a summary court-martial shall be given orally, upon oath or affirmation, administered by the senior member of the court. — (2 Mar., 1855, c. 136, s. 7, V. 10, p. 628.) The use of depositions before naval courts was authorized by act of February 16, 1909, section 16 (35 Stat., 622). See note to article 42, A. G. N., as to evidence before general courts-martial. Art. 30. [Punishments by summary courts.] Summary courts-martial may sentence petty officers and persons of inferior ratings to any one of the following punishments, namely: First. Discharge from the service with bad conduct discharge; but the sentence shall not be carried into effect in a foreign country. Second. Solitary confinement, not exceeding thirty days, in irons, single or double, on bread and water, or on diminished rations. Third. Solitary confinement in irons, single or double, not exceeding thirty days. Fourth. Solitaiy confinement not exceeding thirty days. Fifth. Confinement not exceeding two months. Sixth. Reduction to next inferior rating. Seventh. Deprivation of hberty on shore on foreign station. 1006 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 32. Eighth. Extra poHce duties, and loss of pay, not to exceed three months, may be added to any of the above-mentioned punisliments. (2 Mar., 1855, c. 136, s. 7, V. 10, p. 628.) "The use of irons, single or double, as a form of Eunishment in the Navy of the United tates is hereby abolished, except for the purposes of safe custody or -when part of the sentence imposed by a general court- martial." (Act May 13, 1908, 35 Stat., 132.) "The use of irons, single or double, is hereby abolished, except for the purpose of safe custody or when part of a sentence imposed by a general court-martial." (Act Feb. 16, 1909, sec. 8, 35 Stat., 621.) "The courts authorized to impose the punish- ments prescribed by article thirty of the Articles for the Government of the Navy may adjudge either a part or the whole, as may be appropriate, of any one of the punishments therein enumerated." (Act Feb. 16, 1909, .sec. 8, 35 Stat., 621.) Reduction in rating. — See notes to articles 24and31, A. G. N. The law of March 2, 1855, creating summary courts-martial, included among the punish- ments which they might inflict, "reduction to next inferior rating." The object of that act was to provide for the punishment of petty offenders, and the reduction in rating therein mentioned is imposed as a penalty. It had no application whatever to seamen who were only incompetent, from physical or other causes, to perform the duties of their grades, but who were not offenders. Such persons could not be re- duced to an inferior rating under the pro^ision3 of said act, nor was there any other law provid- ing for their reduction by sentence of a court- martial. (10 Op. Atty. Gen., 168.) Courts-martial sit for the trial and punish- ment of crimes of greater or less magnitude ; and mere incompetency is not of itself a crime. Their sentence of reduction to an inferior grade is imposed as a punishment, but such reduction by a commanding officer for incompetency is not a punishment. A reduction in grade on the ground of incompetency is at worst a mis- fortune, importing no reflection on the character of the person reduced, and does not require a formal trial. (10 Op. Atty. Gen., 168.) (The opinion of the Attorney General above noted was rendered to the Secretary of the Navy, January 16, 1862. The pro\dsion now embodied in article 31, A. G. N., as to disrating for incompetency, was enacted July 17, 1862.) Art. 31. [Disrating for incompetency.] A summary court-martial may disrate any rated person for incompetency. — (17 July, 1862, c. 204, s. 1, art. 10, V. 12, p. 603.) Disrating not a punishment. — See note to article 30, A. G. N., under "Reduction in rating"; see also note to article 24, A. G. N., under "Reduction in rating." Authority of commanding ofla.cer. — See note to article 24, A. G. N. If the appointments under which the men are serving are of a permanent nature, commanding officers of the Navy, who did not establish the ratings, have no authority to disrate them, either as punishment for offenses or for incom- petency. Such men may be disrated by sentence of a general or summary court-martial or deck court as a punishment, or in accordance ■nith article 31, A. G. N., by summary court- martial for incompetency. If they are serving under acting appointments, they can be dis- rated by any commanding officer of the Navy under whom they may be serving, for incom- petency, but not as punishment for an offense. They may be disrated as a punishment in the same manner as though holding permanent ap- pointments. (File 3973-190, June 4, 1917, as to authority of commanding officers of the Navy to disrate members of the National Naval Volunteers called into active ser\dce and subject to the laws and regulations governing the Navy.) Article 24, A. G. N., authorizes commanding officers to punish a rated man by reduction in rank only if the rating was established by the commanding officer who inflicts the punish- ment; but any commanding officer may disrate a man holding xmder an acting appointment, for incompetency, whether the rating was established by himself or by another com- manding officer. (File 7657-249; see also file 3973-190, June 4, 1917.) Art. 32. [Execution of summary court sentence.] No sentence of a sum- mary court-martial shall be carried into execution until the proceedings and sentence have been approved by the officer ordering the court and by the commander-in-chief, or, in his absence, by the senior officer present. And no sentence of such court which involves loss of pay shall be carried into execu- tion until the proceedings and sentence have been approved by the Secretary of the Navy.— (2 Mar., 1855, c. 136, s. 8, v. 10, p. 628. 2 Mar., 1867, c. 174, s. 5, V. 14, p. 516.) "That the Secretary of the Na-\y may set aside order or by that of any officer of the Navy the proceedings or remit or mitigate, in or Marine Corps." (Act Feb. 16, 1909, whole or in part, the sentence imposed by sec. 9, 35 Stat., 621.) any naval court-martial convened by his 1007 Sec. 1624, Art. 32. PL 2. REVISED STATUTES. The Navy. "That all sentences of summary courts-mar- tial may be carried into effect upon the approval of the senior officer present * * *." (Act Feb. 16, 1909, sec. 17, 35 Stat., 623.) "No sentence of a summary court-martial shall be carried into execution until the pro- ceedings and sentence have been approved by the officer ordering the court, or his successor in office, and by his immediate smierior in command: Prornkd, That if the offi(^r ordering the court, or his successor in office, be the senior officer present, such sentence may be carried into execution upon his approval thereof. ' ' (Act Aug. 29, 1916, 39 Stat., 586.) The Judge Advocate General of the Navy "shall, under the direction of the Secretary of the Navy, receive, revise, and have recorded the proceedings of all courts- martial * * * in the naval service." (Act June 8, 1880, 21 Stat., 164.) Power of the Secretary of the Navy. — The act of March 2, 1867 (embodied in art. 32, A. G. N.), gave the Secretarv of the Navy power to approve or disapprove that part of any sen- tence of a summ ary court-martial which involved loss of pay. The' act of Februarv^ 16, 1909, pur- ports to enlarge his power still further, l)y author- izinig him to set aside the proceedings, or remit or mitigate, in whole or in part, the sentence im- posed by any naval court-martial. Under the act of 1867 his power of re^dew was very limited, being confined to sentences invohdng loss of pay, while under the act of 1909 his power is extended to all sentences. (U. S. ex rel, Harris v. Daniels, McDonald, et al., IJ. S. Circuit Court of Appeals, Second Circuit, Jan. 6, 1922, 279 Fed. Rep. 844. Previously to the act of Februaiy 16, 1909, sentences of summary courts-martial under section 1624, Revised' Statutes, could not be carried into execution, if loss of pay was in- volved, until their proceedings in each instance had been approved by the Secretary of the Navy.^ As many courts were held on ships at long distances fi-om the United States, the de- lay of months in the execution of the sentence imposed proved very vexatious and subverted the whole object of a summary court, that of prompt and summary punishment for minor offenses. Hence the desirability of section 17 of the act of 1909, allo^nng the sentences to be carried into effect upon the approval of the senior officer present at the trial. After the enactment of section 17 of that act the dis- tinction between sentences of summary courts- martial which involved loss of pay and those which did not ceased to exist, so that both classes of sentences could be carried into execu- tion without awaiting the approval of the Secre- tary of the Navy. All sentences of such courts- martial may be carried into effect upon the approval of the senior officer present. (U. S. ex rel. Harris v. Daniels, McDonald, et al., U. S. Circuit Court of Appeals, Second Circuit, Jan. 6, 1922, 279 Fed. Rep. 844. _ There is an apparent conflict between sec- tions 9 and 17 of the act approved February 16, 1909 (above quoted); but it is not one in reaUty. In view of section 9, it does not seem that sentences imposed by any naval courts- martial can be regarded as final imtil the Secretary of the Navy has acted. The sen- tence of every summary court-martial by section 9 is made conditional, being sub- ject to the final action of the Secretary of the Navy. (U. S. ex rel. Harris v. Daniels, McDonald, et al., U. S. Circuit Court of Appeals, Second Circuit, Jan. 6, 1922, 279 Fed. Rep. 844. The situation is analogous to that of a man convicted and sentenced to imprisonment for a term of years. The sentence may have been carried into effect, and the man actually im- prisoned under it; but if the appellate court decides the conviction was illegal and sets the proceedings aside because the trial court had no jurisdiction to try him on the indictment, Ms original status is restored. (U. S. ex rel. Harris v. Daniels, McDonald, et al., U. S. Circuit Court of Appeals, Second Circuit, Jan. 6, 1922, Navy Dept. file No. 26251-25651:13.) Under section 17 of the act of 1909, the sen- tence may be carried into effect upon the approval of the senior officer present, as therein provided. But when so carried into effect, if it is thereafter set aside by the Secretary of the Navy, the status of an enlisted man whose discharge was only conditional is thereby restored and continues as it was before the sentence was imposed. (U. S. ex rel. Harris v. Daniels, McDonald, et al., U. S. Circuit Court of Appeals, Second Cii-cuit, Jan. 6, 1922, 279 Fed. Rep. 844. Discharge set aside as illegal.— An en- listed man was discharged from the Navy pur- suant to the sentence of a summary court- martial duly convened and approved by the convening authority and immediate superior in command; subsequently, the proceedings, findings, and sentence were disappro^'ed by the Secretary of the Navy on the ground that the specification failed to state an offense, and the accused was ordered to return and resume his former status in the Navy, which he did under protest and surrendered his discharge to the naval authorities. After performing duty for several weeks, he left his station, returned home, and after an absence of more than two months surrendered himself to the naval authorities for the piirpose of having his status adjudicated. He was immediately placed in custody and his trial by general court-martial ordered for un- authorized absence, copy of the charge was served upon him, and he was placed under arrest for trial. While awaiting trial upon this charge, he was ordered released from naval authority by habeas corpus proceedings; on appeal, held that as the Secretary of the Navy found in this case that the Naval summary court-martial which tried the accused was without jurisdiction because he was not legally charged Avith the commission of an offense, and set aside the proceedings, the sentence became a nullity; and it follows that the discharge of the accused from the service pursuant to such sen- tence was a nullity ab initio. The order of the court below directing his discharge from the naval custody and adjudging that the naval authorities are without jurisdiction to try him for any offense committed since the date of his supposed discharge, reversed. (U. S. ex rel. Harris v. Daniels, McDonald, et al., U. S. 1008 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 34. Circuit Court of Appeals, Second Circuit, Jan. 6, 1922, 279 Fed. Rep. 844. If the proceedings of the court-martial were declared by competent authority to be void, and its sentence set aside as a nullity, on the ground that he had been tried on a specification which failed to state an offense against him, it needs no argument to establish the fact that his status as an enlisted man was not changed in contemplation of law in any particular by reason of the sentence which was imposed. A void sentence can no more affect the status of the person upon whom it is pronounced than a void judgment can affect the property against which it is rendered. (U. S. ex rel. Harris -y. Daniels, McDonald, et al., U. S. Circuit Court of Appeals Second Circuit, Jan. 6, 1922, 279 Fed. Rep. 844, citing in re Bird, 3 Fed. Cas. No. 1428.) For other cases, see note to article 53 A. G. N. Art. 33. [Remission of summary court sentence.] The officer ordering a summary court-martial shall have power to remit, in part or altogether, but not to commute, the sentence of the court. And it shall be his duty either to remit any part or tlie whole of any sentence, the execution of wliich would, in the opinion of the surgeon or senior medical officer on board, given in writing, produce serious injury to the health of the person sentenced, or to submit the case again, without delay, to the same or to another summary court-martial which shall have power, upon the testimony alread}' taken, to remit the former punishment and to assign some other of the authorized punishments in the place thereof.— (2 Mar., 1855, c. 136, s. 8, v. 10, p. 628.) " That the Secretary of the Navy may set aside the proceedings or remit or mitigate, in whole or in part, the sentence imposed by any naA-al court-martial con^'ened by his order or by that of any officer of the Navy or Marine Corps." (Act Feb. 16, 1909, sec. 9, 35 Stat., 621.) See note to article 54, A. G. N., as to sentences of general courts-martial; and see note above, under article 32, A. G. N., as to construction of act of February 16, 1909. Art. 34. [Proceedings and record of summary court.] The proceedings of summary courts-martial shall be conducted with as much conciseness and precision as may be consistent with the ends of justice, and under such forms and rules as may be prescribed by the Secretary of the Navy, with the approval of the President, and all such proceedings shall be transmitted in the usual mode to the Navy Department, where they shall be kept on file for a period of two years from date of trial, after which time they may be destroyed in the discretion of the Secretary of the Navy. This article -was re enacted to read as above by act of February 16, 1909, section 14 (35 Stat. 622). As originally enacted it read as follows: "Art. 34. The pi'oceedings of smnmary courts- martial shall be conducted with as much con- ciseness and precision as may be consistent with the ends of justice, and under such forms and rules as may be prescribed by the Secretary of the Navy, with the approval of the President; and all such proceedings shall be transmitted, in the usual mode, to the Navy Department." — (2 Mar., 1855, c. 136, s. 9, v. 10, p. 628.) The Judge Advocate General of the Navy "shall, under the direction of the Secre- tary of the Navy, receive, revise, and have re- corded the proceedings of all courts-martial * * * in the naval service." (Act June 8, 1880, 21 Stat., 164.) Proceedings as evidence in other cases. — Where the law requires that a docu- ment or paper shall be kept on file in one of the departments at Washington, quaere, whether a civil court of the United States has the right to compel, by a subpoena duces tecum, the pro- duction in any part of the United States of any such document. If the department is com- pelled to produce it in court in New York or San Francisco, it certainly is not kept on the files of the department during the time required for its production and return. (Cohn v. U. S., 258 Fed. Rep., 355.) Documents used as evidence in a naval court- martial, and required by statute to be trans- mitted to the Navy Department and there kept on file for two years, are "official documents" while so kept, and under section 882, Re\ased Statutes, authenticated copies of such docu- ments are admissible in evidence equally with the originals, notwithstanding that the originals were on file in the office of the Judge Advocate General of the Navy, and that no evidence was introduced to show that it was impossible, or even cUlficult, to produce the originals or that a request had been made upon anyone to 1009 Sec. 1624, Art. 36. PL 2. REVISED STATUTES. The Navy. produce them. Unauthenticated copies are inadmissible as secondary evidence. (Cohn v. U. S., 258 Fed. Rep., 355.) Section 882, Revised Statutes, was intended to apply, at least, to any document or paper which is by law required to be tiled and kept in any of the executive departments of the Gov- ernment; and is not limited to documents or papers written or published by an oflicer in his official character or in the performance of an official duty. (Cohn v. U. S., 258 Fed. Rep., 355.) For other cases, see notes to articles 42 and 52, A. G. N.; and see section 882, Revised Statutes, and note thereto. Art. 35. [Same punishments by general courts-martial.] Any punish- ment wliich a summary court-martial is authorized to inflict may be inflicted by a general court-martial. — (2 Mar,, 1855, c. 136, s. 10, v. 10, p. 628.) See article 63, A. G. N., and note thereto, as to limitations of punishment by general courts-martial Art. 36. [Dismissal of officers.] No oflicer shall be dismissed from the naval service except by the order of the President or by sentence of a general court-martial; and in time of peace no officer shaU be dismissed except in pur- suance of the sentence of a general court-martial or in mitigation thereof. — (13 July, 1866, c. 176, s. 5, v. 14, p. 92.) By act of April 2, 1918 (40 Stat., 501^, the President was authorized "to drop from the rolls of the Navy or Marine Corps any officer thereof who is absent from duty without leave for a period of three months or more, or who, having been found guilty by the civil authorities of any offense, is finally sentenced to confinement in a state or Federal penitentiary: Provided, That no officer so dropped shall be eligible for reappointment." Similar provision to article 36, A. G. N., is contained in section 1229, Revised Stat- utes; see that section and historical note thereunder. See also article 37, below. What officers included. -Civil engineers appointed under section 1413, Revised Statutes, are officers of the Navy within the meaning of articles 36 and 37 of section 1624, Revised Statutes. (15 Op. Atty. Gen., 165; see note to sec. 1413, R. S., as to status of civil engi- neers.) Officers holding temporary appointments in the Navy are not either commissioned or war- rant officers, as is recognized by the act of 1862, chapter 204 (sec. 1410, R. S.); therefore, legis- lation as to the manner in which such ollicers are to be cashiered, etc., does not apply to an acting master appointed by the Secretary of the Navy. (15 Op. Atty. Gen., 560. The grade of "master" has since been changed to lieutenant, junior grade; see note to sec. 1362, R. S.) In October, 1861, S was appointed by the Secretary of the Navy "an acting master m the Navy, on temporary servdce," and was dis- missed from the ser\'ice by the Secretary in March, 1862. Held, that the dismissal was lawful; that in the absence of legislation the Secretary had power to determine the time at which an appointment expressly temporary should come to an end. (15 Op. Atty. Gen., 560. In this case the appointment was made by the Secretary of the Navy, under the act of July 24, 1861, 12 Stat., 272.) In January, 1864, S was appointed by the Sec- retary of the Navy "an acting gunner on tem- porary service " in the Volunteer Navy, and in July, 1865, was dismissed from the service by the Secretary. Held, that as an acting gunner he was liable to dismissal at the will of the Secretary. (15 Op. Atty. Gen., 564.) An acting gunner is not, as such, even a petty officer (citing sec. 1410, R. S.). Articles 36 and 37, A. G. N., make provision as to the dismissal of "officers" from the naval service; therefore do not apply to the case of an acting gunner. (15 Op. Atty. Gen., 564.) The provisions of article 36, A. G. N., do not extend to cadets at the Naval Academy; they may accordingly be dismissed from the academy and from the naval service for misconduct, without trial by court-martial. (15 Op. Atty. Gen., 634. The ruling in this opinion does not affect the question as to the status of cadets under other laws relating to "any officer of the Navy," but has reference only to the sense in which that word is used in art. 36, A. G. N. See 17 Op. Atty. Gen., 329, 332.) The President has the power to dismiss a delinquent midshipman from the Naval Acad- emy for violation of regulations; and that power is not restricted by the Revised Statutes, section 1624. (Weller v. U. S., 41 Ct. Cls.,324. ) The statutes on the subject of hazing do not confer upon the Superintendent of the Naval Academy, or the Secretary of the Navy, or upon both conjointly, the power siunmarily to dismiss from the academy without trial by court-martial a midshipman guilty of that offense. (25 Op. Atty. Gen., 543.) For other cases, see note to section 1512, Re\'ised Statutes, as to the status of midship- men; note to section 1519, Re\ised Statutes, as to court-martial of midshipmen and dismissal without court-martial ; notes to articles 39 and 53, A. G. N., as to who are officers within the meaning of those articles; and note to Constitu- tion, Article II, sec. 2, clause 2, under "VIII. Power of removal." "Time of peace" construed. — The law assumes to control the President in the matter of dismissing officers from the military and naval service only in time of peace. Its pur- pose was, upon the declaration of peace, to sus- pend the broad power which he exercised 1010 The Navy. Pt. 2. REVISED STATUTES. Sec. 1624, Art. 36. during the recent rebellion to dismiss an officer from the ser\dce whenever in his judgment the public interests would thereby be promoted. But peace was not inaugurated until August 20, 1866, on which date the President announced by proclamation that "peace, order, tranquil- lity, and ci\-il authority' ' then existed "in and throughout the whole of the United States of America" (14 Stat., 814). Since peace in con- templation of law could not exist while rebellion against the National Government remained unsuppressed, the close of the rebellion and the complete restoration of the national authority as announced by the President and recognized by Congress must be accepted as the beginning of the "time of peace," during which the Presi- dent was deprived of the power of summarily dismissing officers from the military and naval 8er^ice. (McElrath v. U. S., 102 'U. S., 426, 438.) The Limitation, "except in time of peace," on the power of the President to summaiily dismiss a military officer contemplates not a mere cessation of hostilities, but peace in the complete sense, officially proclaimed. (Kahn V. Anderson, 255 U. S., 1," 10, citing McElrath v. U. S., 102 U. S., 426, 438. Compare, 32 Op. Atty. Gen., 505.) Dismissal by the President with the consent of the Senate. — ^\^lere the Presi- dent nominated A to the Senate to be a first lieutenant in the Marine Corps, vice B "dis- missed," and the Senate advised and consented to the appointment agreeably to the nomination, and A was commissioned, held that such appointment, followed by a commission, oper- ated to discharge B from the ser\dce as effectu- ally as if he had been dismissed by the direct order of the President. (McElrath v. U. S., 102 U. S., 426.) This law may be construed as prohibiting the dismissal of officers of the Navy in time of peace under any circumstances or for any cause or by any authority whatever, except in pursuance of the sentence of a court-martial to that effect or in commutation thereof; or it may be construed as prohibiting their dismissal by the President alone, in time of peace, A\'ithout the sentence of a court-martial or in commutation thereof. Although the question is not free from difficulty, held, that the latter is the true construction of the act. "^Miether the power of the President and Senate in this regard could be constitu- tionally subjected to restrictions bv statute, quaere. (Blake v. U. S., 103 U. S.,'227, 235, 236; Wallace v. U. S., 55 Ct. Cls., 396, 400.) The President has the power to supersede or remove an officer of the Army or the Navy by the appointment, by and with the ad\'ice and consent of the Senate, of his successor. It was not the purpose of the fifth section of the act of Jtdy 13, 1866 (14 Stat., 92, now embodied in sees. 1229 and 1624, art. 36, R. S.), to withdraw that power. (Blake i). U. S., 103 U. S., 227; Keyes v. U. S., 109 U. S., 336.) It is in substance and effect nothing more than a declaration that the power theretofore exercised by the President, without the con- currence of the Senate, in summarily dismissing or discharging officers of the Army or Navy whenever in his judgment the interest of the service required it to be done, shall not be exercised in time of peace except in pursuance of the sentence of a court-martial or in commu- tation thereof. (Blake v. U. S., 103 U. S., 227, 236.) The President has power, by and %nth the advice and consent of the Senate, to displace an officer in the Army or Navy by the appointment of another person in his place. (Mullani). U. S., 140 U. S.. 240, affirming and follo^nng Blake V. U. S., 103U. S.,227.) It was competent to the President, if he deemed the further continuance of G, a civil engineer, in the service not advisable, to nomi- nate _W in his place; the confirmation and appointment of W operated to remove G, and the fact that the latter received no notice of his dismissal is unimportant. (16 Op. Atty. Gen., 203.) y ^ y , For other cases, see note to Constitution article II, section 2, clause 2, under •VIII. Power of removal." See also act of March 3, 1883 (22 Stat.. 530), "for the relief of Edward Bellows." niegal dismissal revoked. — Certain cadet engineers who had graduated from the Naval Academy were honorably discharged under an erroneous interpretation by the Navy Depart- ment of an act enacted August 5, 1882 (22 Stat., 285). Such discharges were held by the courts to be void. (See Perkins v. U. S., 20 Ct. Cls., 438, 116 U. S., 483; see also U. S. v. Redgrave, 116 U. S., 474; Harmon v. U. S., 23 Ct. Cls., 132.) In the meantime, others had been pro- moted to the vacancies in commissioned grades to which said cadet engineers would have been promoted but for their erroneous discharge: Held, that the promotions which were so made can not well be distui-bed, but that said cadet engineers, eiToneously discharged, should be recognized as in the immediate line of promo- tion in their proper order to fill the first vacan- cies that may occur in the office of assistant engineer. (18 Op. Atty. Gen., 373. See also note to art. 10, A. G. N., as to implied resigna- tions; and note to art. 53, A. G. N., as to dis- missal of officer pursuant to sentence of a court- martial which had not been confirmed by the President.) Power of Congress to reduce number of oflB.cers.^ — An officer in the Army or Navy of the United States does not hold his office by contract but at the will of the sovereign power; and it is within the power of Congress to provide for the honorable discharge of officers not needed in the Navy. The country is not compelled, after the conclusion of a war, to maintain the entire official force of the Army and Navy and a host of sinecurists in full pay so long as they shall live. (Crenshaw r. U.S., 134 U.S., 99, 107.) Article 36, A. G. N., does not give officers of the Navy a contract right to hold their offices, nor deprive Congi'ess of the power of enacting laws for the honorable discharge of officers. One legislature can not deprive its successor of the power of revocation. That article was not intended to place an oflicer beyond the power of Congress to make any provision for his removal, even by the executive who appointed him. (Crenshaw v. U. S., 134 U. S., 99, 107.) Oflicers dropped from the roUs. — See act of April 2, 1918, quoted above under this article; and see note to article 37, A. G. N. 1011 Sec. 1624, Art. 37. Pt. 2. REVISED STATUTES. The Navy. By order of the President an ofTicer was dro^iped from the rolls of the Army for unauthor- ized absence. The fact that tlie order may have been issued "under a misapprehension of the facts " could not change its legal e ffect ; it still re- mains an authorized act of the Executive, even if prompted by an erroneous impression. The law does not provide for nor contemplate re- course to a court-martial, or other examination to ascertain the facts. His decision as to any ofTicer having been made, the President is, as to the case of that individual, functus officio, the statute giving him no right to review, annul, allirni, or reverse his own adjudication. Certainly a succeeding administration has no power of re\dew. The action of the President in such case is not merely discretionary, but quasi judicial. Action once had is final. (17 Op. Atty. Gen., 13.) The statute did not contemplate any formal trial by the President, either through an "indict- ment" or a court-martial, before di'opping an absent officer. No form of procedure was pre- scribed, but the means of discovering the facts was left to the sound judgment of the President, upon whom was conferred the power to act. It may well be inferred that it was anticipated that recourse would be had to the records of the War Department to discover who were thus delinquent. (17 Op. Atty. Gen., 13.) The law authorizing the President to drop officers of the Army from the rolls for unauthor- ized absence was intended to give to the President a fresh grant of power, to be exercised at that time independent of the laws prohibiting dismissal of officers without trial by couil- martial, and making such dismissal void if the officer demanded a trial by court-martial and it was not granted. (Newton v. U. S., 18 Ct. Cls., 435.) Under the law authorizing the President to di"op from the rolls of the Ai-my an officer absent from duty three months without leave, the jurisdiction to find the fact of desertion was vested in the President alone, and his decision thereon can not be reviewed by the Court of Claims in an action by the officer for the pay of his office. Congress undoubtedly supposed that the Commander in Chief of the Anny was capable of deciding this simple fact vvithout mistake or bias. Right or wrong, the court must presume the fact to be as the President determined it. (Newton v. U. S., 18 Ct. Cls., 435.) Art. 37. [Dismissed officer may demand trial.] Wlien any officer, dismissed by order of the President since 3d March, 1865, makes, in writing, an apphca- tion for trial, settmg forth, under oath that he has been wrongfully dismissed, the President shall, as soon as the necessities of the service may permit, convene a court-martial to try such officer on the charges on which he shaU have been dismissed. And if such court-martial shall not be convened witlxin six months from the presentation of such application for trial, or if such court, being con- vened, shall not award dismissal or death as the punisliment of such officer, the order of dismissal by the President shall be void. — (3 Mar., 1865, c. 79, s. 12, v. 13, p. 489.) Amendment to this article was made by act of June 22, 1874, section 2 (18 Stat., 192), as follows: "The accounting officers of the Treasury be, and are hereby, prohibited from making any allowance to any officer of the Navy who has been, or may hereafter be, dismissed from the service and restored to the same under the provisions of the twelfth section of the act of March thii'd, eighteen hundred and sixty-five, entitled 'An Act to amend the several acts hereto- fore passed to provide for the enrolling and calling out the national forces, and for other purposes,' [art. 37, A. G. N.] to exceed more than pay as on leave for six months from the date of dismissal, unless it shall appear that the officer demanded in writ- ing, addressed to the Secretary of the Navy, and continued to demand as often as once in six months, a trial as provided for in said act." Enactment held constitutional. — The twelfth section of the act of March 3, 1865 (13 Stat., 489; now art. 37, A. G. N.), providing in certain contingencies for the restoration of an officer dismissed from the military or naval serv- ice, is constitutional and imperative. It falls within the fomteenth clause of section 8 of Article I of the Constitution, "to make rules for the government and regulation of the land and naval forces." (12 Op. Atty. Gen., 4.) _ It does not seem to be obnoxious to the objec- tion that it invades or frustrates the power of the President to dismiss an officer. On the contrary, it proceeds upon an admission that the power of dismissal belongs to the President. It is simply a regulation which is to follow dis- missal, providing in certain contingencies for the restoration of the offic^er to the service, and leaving the dismissal in full force if those con- tingencies do not happen. (12 Op. Atty. Gen., 4. See note to art. 32, A. G. N., as to condi- tional discharge under summary court-martial sentence.) Not limited to time of peace. — The terms of the act of March 3, 1865 (13 Stat., 489; art. 37, A. G. N.), do not confine it to time of peace. Its terms are general. (Wallace v. U. S., 55 Ct. Cls., 396, 402.) Not a limitation on power of dismissal. — It does not express any purpose to limit the President's power to dismiss. On the contrary, it recognizes that power and clearly imports, by its language, that there shall have been a dis- missal beifore the officer can invoke its pro- visions. It does not speak of suspension, but 1012 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 37. does mention dismissal. It is not to be pre- sumed, nor does the language of the act indi- cate, that the power which Congress had "requested" the President to employ, to dis- miss officers from the military service (act July 17, 1862, 12 Stat., 596), was intended to be taken away from him or Limited in 1865, the war then continuing. (Wallace v. U. S., 55 Ct. Cls., 396, 402.) If it be said that the language of the act, though specific in its reference, does not imply that the officer is or can be dismissed by the President's order, but means that the order has the effect of only suspending him from duty, then the act provides no method of determining the status of the officer if he fails to demand a trial; nor does it provide, if a court-martial be convened, for any execution of its award. (Wallace v. U. S., 55 Ct. Cls., 396, 404.) Meaning of law obscure. — The language is not aptly chosen, and the meaning to be ascribed to it is obscure. (Wallace v. U. S., 55Ct. Cls.,396, 403.) WTiether the purpose of the law is fiilly met by a court-martial or some other body, author- ized by order of the Presideirt, whose findings can go to the officer's record or make him eligible to reappointment, or whether a broader meaning should be accorded to it, not decided. (Wallace v. U. S., 55 Ct. Cls., 396, 404.) Restoration requires new appoint- ment. — If it be assumed that it was not its in- tention to limit the power of dismissal (and its terms certainly import that it treats the dismis- sal as a fact), then the declaration that the order of dismissal shall be void, because of something subsequently occurring, could not be effective to restore the officer to his office. Let it once be admitted that the officer was dismissed from the service, and it must follow that the effect of the order dismissing him was to sever his relations Math the Army. The vacancy so created could be filled only by a new and origi- nal appointment, to which, by the Constitution, the advice and consent of the Senate is neces- sary. (Wallace ?;. U. S., 55 Ct. Cls., 396, 403, citing U. S. V. Corson, 114 U. S., 619, 622.) Where a person has ceased to be an officer of the Army, he could not again become one ex- cept upon a new appointment, by and with the ad\ice and consent of the Senate. (Blake v. U. S,, 103 U. S., 227, 237, citing Mimmack v. U. S., 97 U. S., 426.) The act of June 22, 1874, section 2 (quoted above, under this article), contains a reference to the act of March 3, 1865 (now art. 37, A. G, N.), but relates to the case of an officer of the Navy dismissed from the service and "restored" to the same. It does not appear how the resto- ration took place, and from the whole section it appears that the officer is not restored to office. (Wallace v. U. S., 55 Ct. Cls., 396, 401.) It can not be seriously questioned that if a vacancy in his office M'as created by an officer's dismissal, it could only be filled by a new appointment made by the Executive, with the consent of the Senate. It could not be filled by legislative enactment. (Wallace v. U. S., 55 Ct. Cls., 396, 399, citing Wood's Case, 107 U. S., 414, 15 Ct. Cls., 151; Minunack Case, 97 U. S., 426, 437; Corson Case, 114 U. S., 619, 622.) See note to Constitution, Article I, section 7, clause 2, under "Veto of bill authorizing restoration of dismissed officer." Execution of court-martial sentence.— While the language of the act justifies the con- clusion that the power of dismissing an ofiicer was not taken away, his reinstatement is not left to stand upon the action of a court-martial, because the order of dismissal, it is declared, shall be void if a court-martial be not convened. Nor does the act contemplate any execution of a sentence of a court-martial, if convened. It declares that the order of dismissal "shall be void " if the coiu-t-martial does not award dis- missal or death, but implies that the President's order shall stand if the court-martial's sentence should call for severer punishment. In other words, the effect upon the order of dismissal is the same, whether the court-martial be not con- vened or, being convened, award a different punishment than mere dismissal. (Wallace v. U. S., 55 Ct. Cls.,396, 403.) Article prospective only. — -The phrase in section 1230, Re\'ised Statutes (corresponding to art. 37, A. G. N.), "any officer dismissed," is prospective only in its meaning, and an officer dismissed without court-martial in 1863, by order of the President, held not entitled to a trial upon his application therefor in 1878. (16 Op. Atty. Gen., 599.) Time for making application for trial.— Though no time is limited in the act for making the application for a court-martial, the general rule of law would require the claim to be made within a reasonable time. It is not reasonable to wait until the statute of limita- tions has run against the offense, witnesses have disappeared, and memory failed; or until we may naturally expect these things to have occurred. (17 Op. Atty. Gen., 13, 20.) When an officer of the Army claims that he has been illegally dismissed or dropped from the rolls, and seeks the benefit of section 1230, Re\'ised Statutes (corresponding to art. 37, A. G. N.), he must make his application there- under for trial by court-martial \vithin a reason- able time after dismissal, or his acquiescence will be presumed. Long delay, by changes, promotions, and appointments, may work great confusion in the Army Register and great injury to many officers. Witnesses disappear, and facts are forgotten. A delay of nine years in asking for a trial was unreasonable, and the officer in such case must be presumed to have acquiesced in the order of the President. (Newton v. U. S., 18 Ct. Cls., 435.) Ofla.cer dropped from the roUs. — The act of March 3, 1865, section 12 fnow art. 37, A. G. N.), was passed while the war was fla- grant, and while the President had authority under the act of July 17, 1862, section 17 (12 Stat., 596), "to dismiss and discharge from the military service, either in the Army, Navy, Marine Corps, or volunteer force, in the United States service, any officer for any cause which, in his judgment, either renders such officer unsuitable for, or whose dismission would pro- mote, the public service." Neither said act of March 3, 1865, nor that of July 13, 1866, section 5 (now art. 36, A. G. N.), applies to cases ex- pressly and specifically pro\ided for by subse- 1013 Sec. 1624, Art. 38. Pt. 2. REVISED STATUTES. The Navy. quent legislation authorizing the President to drop from the rolls oliicers absent from duty %\-ilhout leave for three months. (17 Op. Atty. Gen., 13, 19; see note to art. 36, A. G. N.) Officer superseded by appointment of successor. — Where an officer was dismissed by the Tresiflent wdthout trial, and his successor appointed, by and wi^h the advice and consent of the Senate, the officer can not thereafter claim the pay of his office on the ground that the President failed to grant his request for trial by court-martial, except, possibly, for the short period elapsing between the date of the Presi- dent's order of dismissal and the date of the new appointment. (Wallace v. U. S., 55 Ct. (Is., 39(), -101.) Pay of officer dismissed without trial. — Since the restoration of an officer who has been lavvfuUy dismissed from his office requires a new appointment, it would seem that the act (em- bodied in art. 37, A. G. N.) does not in any event affect the office that was held, or entitle him to its emoluments. (Wallace v. U. S., 55 Ct. Cls.j 396, 404.) A retired naval officer was dismissed from the Navy by order of the President on Decem- ber 30, 1865. In May, 1876, upon his applica- tion for trial bv court-martial, made under sec- tion 12 of the act of March 3. 1865 (art. 37, A. G. N.), a court was awarded which in June, 1876, pronounced him innocent of every charge and specilication, and the dismissal being thereby annulled he was ordered, June 5, 1876, to be restorr-d to the retired list. Between the date of his dismissal and the date of his restora- tion he had not demanded in wiiting from the Secretary of the Navy, as often as once in six months, a trial; but pay was claimed by him for that period. Held, that the right of the claimant to pay is governed by section 2 of the act of June 22, 1874, chapter 392 (quoted above under this article), under the proxisions of which he is not entitled to more than "pay as on leave for six months from the date of dis- missal." It was competent to Congress to modify, in the matter of pay, the effect of a restoration under the act of 1865. (15 Op. Atty. Gen., 569.) Similar law for Army repealed. — The right of the President to dismiss an officer of the Army in time of war, in so far as it may have been limited by section 1230, Revised Statutes (corresponding to art. 37, A. G. N.), is now unimpaii-ed, as the latter section has been superseded by the articles of war enacted August 29, 1916 (39 Stat., 651, 669). (WaUace V. U. S., 55 Ct. Cls., 396.) Art. 38. [General courts-martial; convening authority. Superseded.] This article provided as follows: "Art. 38. General courts-martial may be convened by the President, the Secretaiy of the Navy, or the commander-in-chief of a fleet or squadron; but no commander of a fleet or squadron in the waters of the United States shall convene such com't without express authority from the President."— (17 July, 1862, c. 204, s. 1, art. 11, v. 12, p. 603.) It was superseded by act of February 16, 1909, section 10 (35 Stat., 621), as follows: "That general courts-martial may be convened by the President, by the Secretary of the Navy, by the commander in chief of a fleet or squadron, and by the commanding officer of any naval station beyond the continental liniits of the United States." Further amendment was made by act of August 29, 1916 (39 Stat., 586), which provided as follows: "When empowered by the Secretary of the Navy, general courts- martial may be convened by the commanding officer of a squad- ron, of a division, of a flotilla, or of a larger naval force afloat, and of a brigade or larger force of the naval service on shore beyond the conti- nental limits of the United States: Provided, That in time of war, if then so empowered by the Secretary of the Navy, general couits- martial may be convened by the commandant of any navy yard or naval station, and by the commanding officer of a brigade or larger force of the Navy or Marine Corps on shore not attached to a navy yard or naval station." The act last cited further provided that "when a force of marines is embarked on a naval vessel, or vessels, as a separate organiza- tion, not a part of the authorized complement thereof, the authority and powers of the officers of such separate organization of marines shall be the same as though such organi- zation were serving at a navy yard on shore, but nothing herein shall be construed as impairing the paramount authority of the com- manding officer of any naval vessel over the vessel under this command and all persons embarked thereon." It was also provided by the act last cited that "all officers of the Navy and Marine Corps who are authorized to order either general or summary courts-martial may order deck courts upon enlisted men under their com- mand, and shall have the same authority to in- ffict minor punishments as is conferred by law upon the commander of a naval vessel." (See art. 24, A. G. N., as to punishments by com- manding officers; and see act Feb. 16, 1909, 35 Stat., 621, as to deck courts.) Courts-raartial for trial of midship- men. — See laws and decisions noted under section 1519, Revised Statutes. Statutory authority necessary to con- vene courts. — It belongs exclusively to Congress to ordain or provide for courts-martial, to define their jurisdiction, to make their sen- tences final and conclusive or subject to some revisory power, to designate by whom they shall be convened and by whom their sentences shall be revised or confirmed, and generally to make such provision concerning them as they deem proper. It follows from the exclusive power of Congress over the subject that no one can have any authority, either to convene a court-martial or to affii'm or disaffirm its decision, unless it can be shown that such authority has been delegated by Congress. (5 Op. Atty. Gen., 508.) The objection that the officer who convened the court was not empowered by the President to do so, as required by the statute then in force, if well taken, is jurisdictional. (U. S. v. Smith, 1014 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 39. 197 U. S., 386, 392. See note to art. 53, A. G. N. as to effect of jurisdictional defects.) Where an officer in 1865 was sentenced by court-martial, inter aha, to be dismissed from the service, and the sentence was approved and executed by order of the commanding general by whom the court was convened, held (in 1882) that the court was illegally con- stituted, and the findings and sentence there- fore null and void, for the reason that the con- vening authority had no power to appoint said court if he were disquahfied by the fact that he was himself the "accuser or prosecutor" who was forbidden by the articles of war to convene a court in such case. {11 Op. Atty. Gen., 436. See note to art. 39, A. G. N., as to courts illegally constituted; see note to art 53, A. G. N., as to jurisdictional defects; and see note to art. 10, A. G. N., as lo acqmescence in dis- missal.) President's power not dependent on statute. — It is within the power of the Presi- dent, as Commander in Chief, to convene _a general court-martial even in cases where he is not expressly authorized to do so by statute. (Swaim^;.U. S., 165U. S., 553, 556.) As Cormnander in Chief the President is authorized to give orders to his subordinates, and the convening of a court-martial is simply the giving of an order to certain officers to assemble as a court, and when so assembled to exercise certain powers conferred upon them by the articles of war. (Swaim v. U. S., 165 U. S., 553, 556, citing Runkle -v. U. S., 19 Ct. Cls., 396, 409. See 15 Op. Atty. Gen., 297-303, for complete note on this subject.) Evidence of convening authority's power. — A recital in the precept forming part of the record of a naval court-martial that it was convened by virtue of express authority vested in the officer convening the same by the Presi- dent of the United States is sufficient evidence of such authority in habeas corpus proceedings. (In re Grain, 84 Fed. Rep., 788.) The designation of an officer in the proceed- ings of a naval court-martial as "Cormnander in Chief, U. S. Naval Forces, North Atlantic Station," raises the presumption, under the Navy Regulations, that he was in command of a fleet or squadron and was therefore a proper officer to convene the coiirt. (In re Cratu, 84 Fed. Rep., 788.) Under the law authorizing certain officers of the Army to convene courts-martial when empowered by the President, held that a general order of the President lodging this power in the commanders of designated military camps is judicially noticed as part of tha law of the land, and the legality of a court-martial estabhshed under it is not affected by omission to refer to it the order conveninsr the court-martial. in See note to article 52. A. G. N.. under "Omission of record to show jmisdictional facts." Changes in convening order. — The original order directed the comt to convene on board the U. S.S. ifaine at 10 a. m., on Monday, January 11, 1897, or as soon thereafter as prac- ticable; subsequently, on Januaty 22, the con- vening authority issued a second order directing that the court convene on board the U. S. S. Montgoifnery as soon as practicable after her arrival at Hampton Roads. The court met on January 25, 1897. We are unable to discover any illegality or anything that was prejudicial to the accused in changing the date of trial. ( In re Crain, 84 Fed . Rep . , 789 ; see notes to arts. 39, 46, and 47, as to personnel of courts-martial.) Convening authority outside his com- mand. — In the absence of legislation or of orders from competent authority to the con- trary, personal presence within the territorial limits of his command is not essential to the vaUdity of an order given by an officer appoint- ing a court-martial within such limits. He may appoint general courts-martial and act upon the record of proceedings of the same when outside the territorial limits of his com- mand. Whether there may be exceptions to the foregoing, growing out of special circum- stances attending absence, can be best deter- mined when those circumstances arise. The ground of this opinion is that there is at present nothing else to indicate the will of the President or other superior authority that the functions of commanding officers should be so hmited. (16 Op. Atty. Gen., 678.) When courts convened. — This power may be exercised on information received by the officer invested with it from his own sense of official duty, or on the application of other persons accompanied by charges which such officer may deem sufficient to require a trial. (4 Op. Atty. Gen., 410.) General courts-martial have been convened by the Secretary of the Navy upon resolution of the House of Representatives requesting the trial of designated officers. (See, e. g., G. O. 156, May 24, 1870, pubhshing case of Com- mander John H. Upshur, U. S. N.) ♦'Waters of the United States" con- strued. — The provision in article 38 of section 1624, Re^ised Statutes, that no commander of a fleet or squadron "in the waters of the United States" shall convene a general court-martial without express authority from the President, was enacted in 1862, and will be construed as intending to apply to waters witliin the con- tinental Umits of the United States, and not to waters in the territory beyond seas (Pliilippine Islands) acquired since the passage of that act, and the acquisition whereof was not contem- plated at that time. (U. S. v. Smith, 197 U. S., 386.) (Givens v. Zerbst, 255 U. S., 11, affirming ex parte Givins, 262 Fed. Rep., 702.:) Art. 39. [General courts; constitution of.] A general court-martial shall consist of not more than thirteen nor less than five commissioned officers as members; and as many officers, not exceeding tliirteen, as can be convened without injury to the service, shall be summoned on every such court. But in no case, where it can be avoided without injury to the service, shall more than 1015 Sec. 1624, Art. 39. Pt. 2. REVISED STATUTES. The Navy. one-half, exclusive of the president, be junior to the officer to be tried. The senior officer shall alwa\^s preside and the others shall take place accorduig to tlieir rank.— (17 July, 1862, c. 204, s. 1, art. 11, v. 12, p. 603. Wise v. Withers, 3 Cr., 337. Dynes v. Hoover, 20 How., 81, 84.) Commissioned officers of the Naval Resen'e Force, ^Marine Corps Reser\-e, Coast Guard, Lighthouse SerAace, Coast and Geodetic Survey, and Public Health Service are empowered to serve on naval courts-martial when actively serving under the Navy Department in time of war or emergency as part of the naA'al forces of the United States. (Act Oct. 6, 1917, 40 Stat., 393.) Rank and precedence of officers associated to- gether on duty: See sections 1485, 1486, and 1489, ReAised Statutes. Number of members. — The execution of a sentence of death is murder unless the court pronouncing it consisted of 13 commissioned officers, where that number could have been convened without manifest injury to the serv- ice. (1 Op. Atty. Gen., 296.) A court-martial which consisted of five mem- bers only was not a legal court if 13 could have been convened without manifest injury to the ser^'ice. The language of the law does not pro- \-ide that the court shall consist of 13 members where that number can be "conveniently" convened ; but where they can be convened at all, not only without probable injury but with- out "manifest" injury to the service. (1 Op. Atty. Gen., 296, construing Army law.) It is difficult to conceive an emergency in time of peace so pressing as to disable the gen- eral officer who orders the court from convening 13 commissioned officers on a trial of life and death, "without manifest injury to the serv- ice." (1 Op. Atty. Gen., 296.) Suggested, that in every case of life and death, at least, the President ought to be satisfied of the manifest injurj^ which the servdce would have sustained in convening a court of 13 before he gives his sanction to a sentence of death by a smaller number. (1 Op. Atty. Gen., 296.) Although naval courts-martial shall have been organized with five members only, under the orders appointing them, their sentences are not invalid for that reason. Although the Na\'y article, reading, "without injury to the ser\-ice," is not in the same words as the article of war, they contain substantially the same provisions in relation to general courts-martial ; and the discretion vested in the officer appoint- ing the court to regulate the number by the exigencies of the public serv-ice is ob^dously of the same character in both cases. The Supreme Court have declared that the language used in the article of war is merely directory to the officer appointing the court, and his decision as to whether that number can be couA'ened without manifest injury to the serv- ice, being in a matter submitted to his sound discretion, must be conclusive. The discre- tion vested in the officer appointing a naval com"t-martial, being of the same character, his decision must be equally conclusive. (2 Op. Atty. Gen., 534, citing Martin v. !Mott, 12 Wheat., 34, 35.) Objection to a naval court-martial, because consisting of only nine members, must be taken during the trial as only involving the question of fact whether a greater number of officers could have been detailed without injury to the service, and not ])eing a ground of nullity. (6 Op. Atty. Gen., 369.) This objection is matter, not of nullity in the face of the record but of possible error merely, depending on a question of fact, viz, what nimiber of officers could have been summoned "Mthout injury to the sendee"? That ques- tion of fact was required to be raised at the time, in order that the court or the President of the United States might judge and decide thereon, as they or he had the power to do. If raised at the time, the decision of the court, or certainly of the President in approAdng the sentence, would have been final and con- clusive on the point. (6 Op. Atty. Gen., 369; see note to art. 53, A. G. N., as to irregularities and fatal defects.) The number of persons detailed to constitute a court-martial, pro\'ided it do not fall below the minimum number of five prescribed by the statute, is a matter of discretion \vithin the lawful authority of the officers appointing the court. (6 Op. Atty. Gen., 506.) Article 39, A. G. N., which requires that as many officers not exceeding 13 as can be con- vened without injury to the service shall be summoned on every general court-martial was fully complied with in this case. Admiral Bimce in his letter to Capt. Wise designated eight officers who were to compose the court, and this communication expressly stated that no other officers could be summoned without manifest injury to the serA-ice. The order of Admiral Bunco to Capt. Wise designating the members of the court was a summons, within the meaning of the statute. The fact that Admiral Bunce subsequently, in another letter to Capt. Wise, substituted Lieut. Berry in place of Lieut. Comly as a member of the court- martial, is immaterial. (In re Grain, 84 Fed. Rep._, 788.) It is verj' clear that the article of war proAdd- ing that general courts-martial shall consist of not less than 13, where that number can be convened ^vithout manifest injury to the serAice," is merely directory to the officer appointing the court; and that his decision as to the number which can be convened without manifest injury to the serAdce, being in a matter submitted to his sound discretion, must be conclusive. (Martin v. Mott, 12 Wheat., 19, 35.) It is a question for the officer couA-ening the court to determine whether more members could be convened Avithout injury to the service; and his action in this respect can not be attacked collaterally, and if the accused express satis- faction with the court-martial as constituted, it is a clear waiver of any objection to its person- nel. (Bishop V. U. S., 197 U. S., 334.) The rank and number of meml^ers of a court- martial must necessarily be, and is, left some- what to the discretion of the officer conA-ening the 1016 The Navy. Ft. 2. REVISED STATUTES. Sec. 1624, Art. 39. court. There is nothing in this case to indicate an abuse of discretion, or that a larger number of officers might have been convened without injury to the service, although if the accused had taken prompt advantage of the defect it might have been necessary to show that a larger num- ber could have been obtained. His expressed satisfaction with the court as constituted was a clear waiver of any objection to its personnel. (Bishop V. U. S., 197 U. S., 334, 340.) Under the articles of war which provide that a court-martial shall be composed of not less than five officers and must be composed of 13, when so many may be convened without manifest injury to the service, held that the fixing of the number within those limits, with reference to the conditions of the service, is an act of executive discretion not subject to judi- cial rexiew. (Kahn v. Anderson, 255 U. S., 1, citing Martin v. Mott and Bishop v. U. S., above noted. The court in this case was com- posed of eight members, the order certifjdng that more than that number could not be con- vened without manifest injury to the ser^•ice; and the legality of the organization of the court and its jurisdiction were at once challenged.) See note to article 46, A. G. N., as to absence of members during the trial; note to article 38, A. G. N., as to fatal defect in convening court- martial; and note to article 53, A. G. N., as to irregularities not fatal. Supemvunerary members. — See note to article 47, A. G. N., under "Member absent at commencement of proceedings." Rank of m.em.bers. — See note to article 45, A. G. N., as to absence of member resulting in more than one-half of the remaining members, exclusive of the president, being junior to the accused . The fact that one of the ofiicers composing a court-martial is junior in rank and another inferior in grade to the accused, does not of itself render either of them incompetent to sit. (17 0p. Atty. Gen., 397.) When the commander in chief of a squadron not in the waters of the United States convenes a court-martial to try an officer attached to the squadron, more than one-half of whose members are junior in rank to the accused, the courts of the United States will assume, when his action in this respect is attacked collaterally, and nothing to the contrary appears on the face of the order convening the court, that he properly exercised his discretion and that the trial of the accused by such a court could not be avoided mthout inconvenience to the serv- ice. (Mullan V. U. S., 140 U. S., 240. In the order convening the court in this case it was stated : ' ' No other officers than those named can be assembled without manifest injury to the service." When the court convened, the ac- cused objected and protested to being tried by the court, because five of its seven mem- bers were his juniors. At the time of the organization of the court there were 12 naval officers superior in rank to the accused on wait- ing orders in the city of Washington. He was sentenced to dismissal and the sentence con- firmed by the President. He brought suit two years after dismissal to recover pay on the ground that the action of the court-martial was void . Judgment was rendered against Mm . ) In detailing officers to compose a court- martial the presumption is that the convening authority acts in pursuance of the law; and the sentence of the court can not be collaterally attacked by going into an inquiry as to whether the trial by officers inferior in rank to the ac- cused was or was not avoidable, even though the record does not affirmatively disclose that the appointment of officers inferior in rank to the accused was unavoidable by reason of some necessity of the service. Several considera- tions might have determined the selection of the members of the court, such as the health of the officers within convenient distance or the injury to the public interests by detaching officers from their stations. (Swaim v. U. S., 165 U. S., 553, 559.) What officers eligible as members. — Undergraduates _ at the MiUtary Academy, West Point, are in the eye of the law not com- missioned officers, but warrant officers, and are not therefore eligible to sit as members of an Armv court-martial. (7 Op. Atty. Gen., 323, 328.) The legal condition of undergraduate cadets at the Military Academy appears from the law and regulations to be in some respects analogous to that of midshipmen in the Navy. (7 Op. Atty. Gen., 323, 329.) \\Tiether or not the words "commissioned officers, ' ' as used in the articles of war relating to the constitution of courts-martial, include all commissioned officers, it is at least certain that they exclude all persons who are not commissioned officers. (7 Op. Atty. Gen., 323, 330.) Chaplains, surgeons, pursers, and all other noncombatant officers are incompetent to offi- ciate as members of naval courts-martial. (2 Op. Atty. Gen., 297.) Under Army statutes a cadet graduated from the Military Academy, if no vacancy existed to which he could be appointed in a particular corps, was attached to such corps by brevet of the lowest grade, as a supernumerary officer, until a vacancy should happen, when he was to receive his line commission. ^Vlien so brevetted as a second lieutenant and attached as a supernumerary officer to some corps of the Army, such graduated cadet, while in this intermediary state, was a "commissioned offi- cer" within the meaning of the articles of war prescribing who shall be members of a general or regimental court-martial. (7 Op. Atty. Gen., 323, "overruling 2 Op. Atty. Gen., 251. As to status of brevet officers, see note to sec. 1604, R. S.) Volunteer naval officers appointed under the act of July 24, 1861, for the temporary increase of the Navy, were "commissioned officers" and competent to serve on general courts-martial. (10 Op. Atty. Gen., 522. The volunteer officers referred to were "acting" officers appointed by the Secretary of the Navy under the act of July 24, 1861, sec. 2, 12 Stat., 272, and were held by the Attorney General not to be "officers" -within the meaning of art. 36, A. G. N.; see note to that article.) The word "commissioned" is used in the Articles for the Government of the Navy only to indicate the rank of officers capable of ser\ing on a general covu"t-martial, and to 1017 Sec. 1624, Art. 39. Pt. 2. REVISED STATUTES. The Navy. distinTe, 158 U. S., 109, 117.) Whether an objection as to the lateness of service of specifications is jurisdictional and can be collaterally inquired into, where such objection was not made at the trial, not de- cided. (U. S. V. Smith, 197 U. S., 386, 391.) Had the court been regularly and legally organized, the fact of its not appearing on the record that the prisoner had been furnished with a copy of charges or been asked if he had any objection to the members of the court might not be sufficient cause for setting aside the proceedings. If any injustice was done to the accused in these particulars, he should make the question before the court and in that way make it appear on the face of the proceedings. (3 Op. Atty. Gen., 396, holding the proceedings illegal in this case because the court was not legally organized.) See note to article 53, A. G. N., as to irregu- larities and fatal defects; and note to article 52, A. G. N., under "Omission of record to show jurisdictional facts." Arrest of officer while on bail. — Full power is po.ssessed by the Secretary of the Navy to cause the arrest of any officer of the Navy charged with the commission of crime and to have him l)r()ught before a naval court-martial for trial. (21 (:)p. Atty. Gen., 504.) Where a disbursing officer of the Navy has been arrested by the cIat.! authorities of the United States for embezzlement and misappro- priation of public funds, and released on bail, the Attorney General will not instruct a United States attorney, at the request of the Secretary of the Navy, to cause the arrest of the officer by the United States marshal, as it would be both unnecessary and improper to cause the arrest of the said naval officer by the civil officers of the Government in order that he might be tried before a naval court-martial, while adequate power resides in the Secretary of the Navy to arrest and confine him and bring him before such court-martial for trial. (21 Op. Atty. Gen., 504.) See note to Constitution, fourth amendment, under "Arrest of military offenders"; and see note to Constitution, Article I, section 8, clause 14, under "Jurisdiction of courfe-martial," subheading "Persons in constructive custody of ciA'il courts." "Charge" and "specification" ex- plained. — In the American serA-ice the cus- tom is to present a "charge" so called, in gen- eral terms indicatiA^e of the offense imputed, as "desertion," "disobedience of orders," "mutiny," or "conduct unbecoming an officer and a gentleman," and to subjoin a "specifica- tion" or "specifications," in which are set forth the particular facts w^hich it is conceiA-ed by the party preferring the accusation, or by the authority ordering the trial, constitute the offense designated in the "charge." In the British service, on the other hand, there is no distinction between the "charge" as such and the "specification." Each separate fact or set of facts constituting the matter of accusation is set forth in a distinct charge, cA'en though there should be a plurality of subjects of charge each one importing a A'ariety of the same offense, and therefore susceptible of classification under general heads of charge. (7 Op. Atty. Gen., 601.) Our practice has couA^enience in many cases. If the crime be of a genus which has but one species, as "sleeping on post," then the "charge" is in general but a title, as it were, to the "specification"; but eA'en in such a case there may be a plurality of acts of the same offense, Avhich it is proper to charge, although if proved to be followed by but one possible sentence for all the acts. (7 Op. Atty. Gen., 601.) But where the offense is of a genus compre- hending many species, the convenience of classification under general heads of charge is apparent. Still more is that conA'enience manifest when the accusation is of a plurality of offenses, as "disobedience of orders," "neglect of duty," and "mutiny," and there is a plurality of acts of each offense. Then it is clear to see how our practice tends not only to methodize the proceedings, but, what is more important, to methodize the elements of deci- sion in the minds of the triers and of the supe- 1026 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 43. rior authority which is to approve or disapprove their final action. (7 Op. Atty. Gen., 601.) The law governing Army courts-martial is found in the statutory enactments of Congress, particularly in the articles of war, in the Army regulations, and in the customary military law. According to military usage and practice, the charge is in effect di\ided into two parts, the first technically called the "charge" and the second the "specification." The charge proper designates the military offense of which the accused is alleged to be guilty; the specifica- tion sets forth the acts or omissions of the accused which form the legal constituents of the offense. (Carter v. McClaughry, 183 U. S., 365, 386.) Sufficiency of charges; technical aver- ments. — If the description of the offense is sufficiently clear to inform the accused of the military offense for which he is to be tried, and to enable him to prepare his defense, it is suffi- cient. Hence a charge which uses the word "inebriation" is sufficient under the articles of war which use the technical word ' ' drunken- ness," although it would certainly have _ been more formal to use the teim which is used in the articles of war. (1 Op. Atty. Gen., 294.) The writers on military law require minute- ness and precision in specifying the time, "whenever it is possible to be thus particular" ; but they all agree that this minuteness and pre- cision are not always within the reach of the prosecutor; hence they allow him a latitude in the statement of the time, and examples cited by them permit a range of three months as to the laying of the time. This latitude is not allowable in covu"ts of civil jurisdiction. (1 Op. Atty. Gen., 294.) A specification of charge is good and will sup- port the finding and sentence upon it, with or without descriptive designation of the quality of the imputed criminal act, provided it appear that the facts alleged and proved constitute in any point of \dew the offense charged. (7 Op. Atty. Gen., 601.) Under a charge of "conduct unbecoming an officer and a gentleman," the specifications al- leged that the accused did certain acts, and concluded, "all which was an abuse of his trust, a violation of his public duty, and was conduct unbecoming an officer and a gentleman." The court, in its findings upon the specifications, excepted the words quoted ; but found the ac- cused guilty upon the charge. Held, that what remained of each specification, after the excep- tions made by the court, although less full and explicit than the whole original specification, yet plainly appears on careful inspection of the matter to be competent to justify the finding and to sustain the charge; that the words ex- cepted were words of description, merely; and that the proceedings were therefore valid. Held, further, that while the words excepted by the court were not words of necessary insertion in specifications, neither were they words of necessary exclusion therefrom; that while a specification is maintainable without the words excepted, so it is with them; that the words were descriptive of the facts alleged; that the practice of including such words is well sus- tained by practice as by principle; that par- ticularity of description would seem to be in the interest of the party accused as well as the service. Suggested, that to prevent exception in future cases, the very words of the charge be employed as the concluding or commencing words of specifications, and that such expres- sions of qualification as the natiure of the facts may require and justify be incorporated in the narrative part of the specification. (7 Op. Atty. Gen., 601.) Certain it is that charges and specifications for trial by court-martial do not need to possess the technical nicety of indictments at common law. Trials by court-martial are governed by the nature of the service, which demands in- telligible precision of language, but regards the substance of things rather than their form; which eschews looseness or confusion in all things, but reflects that military administra- tion must be capable of working in peace, it is true, but more especially amid the privations and the dangers of war. Hence, undoubtedly, the most bald statement of the facts alleged as constituting the offense, provided the legal offense itself be distinctively and accurately described in such terms of precision as the rules of military jurisprudence require, will be ten- able in court-martial proceedings and will be adequate gi'ound work of conviction and sen- tence. (7 Op. Atty. Gen., 601.) All the technicalities which have been ap- plied to common-law indictments are not re- quired in specifications in court-martial pro- ceedings. Here it is sufficient if the facts con- stituting the offense be described with such cer- tainty as to clearly inform the accused of his alleged misconduct and the offense with which he is charged. (28 Op. Atty. Gen., 286, 292.) In cases where a fraudulent or criminal inten- or knowledge upon the part of the accused may be necessary to constitute the offense, it would not be necessaiy to specifically declare their presence in the specification of a charge to be tried by a naval court-martial; their absence would be a matter of defense. (28 Op. Atty. Gen., 286, 292.) A charge of assault with a ilfie and the inflic- tion of a mortal wound by accused upon a fellow soldier, with particulars of time and place clear- ly stated, sufficiently alleged an offense within the article of war providing for the trial and punishment of all crimes not specified in the foregoing articles (see art. 22, A. G. N.). The charge and specification did not accuse the prisoner of any willful or felonious act, but the facts alleged constituted an offense cognizable by court-martial. (In re Stubbs, 133 Fed. Rep., 1012.) It would be extremely absm'd to expect the same precision in a charge brought before a court-martial as is required to support a con- \-iction by a justice of the peace. (See Smith V. Whitney, 116 U. S., 167, 185.) The pleading need not possess the technical nicety of an indictment as at common law. (Carter v. McClaughiy, 183 U. S., 365, 386, citing 7 Op. Atty. Gen., 604.) ■ See note to article 8, A. G. N., as to form of charge and specification for "scandalous con- duct tending to the destruction of good morals. ' ' See note to article 14, A. G. N., as to charge I and specification for embezzlement. 1027 Sec. 1624, Art. 43. PL 2. REVISED STATUTES. The Navy. Charging offenses not specifically pro- vided for. — The "Orders, Regulations, and Instructions for the Administration of Law and Justice in the United States Navy," issued by the Secretary of the Navy, under authority of the President, in 1870, pro\dded, in section 126 thereof, that when a charge "comes directly under any enactment it should be set forth in the terms used therein"; and in section 127, that "when the offense is a disorder or neglect not specially proxdded for, it should be charged as 'scandalous conduct tending to the destruc- tion of good morals.' " Section 1547 of the Re- vised Statutes is a legislatiA^e recognition of the Na^y Regulations of 1870, and "must be understood as giAing to these regulations the sanction of the law." (Smith v. Whitney, 116 U. S., 167, 180; see also notes to articles 8 and 22, A. G. N.; compare note to art. 42, A. G. N., under "Character eA-idence"; and see note to Art. 45, A. G. N.) Description of accused in charges. — WTiere a naval court-martial tried a master-at- arms for desertion on a charge headed with a caption styling the accused, "master-at-arms," and discharged him on the ground that since his arrest he had not been borne on the ship's books as such, held that the decision was errone- ous, and that the grounds stated were insuffi- cient to deter the court from proceeding to judgment on the merits. (3 Op. Atty. Gen., 5487) In this case the accused pleaded guilty to a charge of desertion. The court, notwithstand- ing the plea, proceeded to hear the eAddence produced by the judge advocate. And the accused questioned both the witnesses in his behalf, offering no objection at any time to the proceedings. Held, (1) that the error in the designation of the accused was not made in the charge and specification on which he was tried, but merely in the general heading thereto; (2) that it was admitted that the accused was master-at-arms when the offense alleged in the charge was committed, and there was no con- clusive proof that he had been dismissed from that rank when the charge was preferred; (3) that supposing this, however, to have been clearly established, yet the facts of his ha\dng pleaded to the charge, of his never haAang in any way made such an exception or defense, and of their being no dispute whatever as to the identity of the person, would have prevented the accused himself from taking advantage of the error at this stage of the case; and, of course, it afforded no ground for the court to refuse to proceed to judgment on the merits. (3 0p. Atty. Gen., 548.) A midshipman was nominated and confirmed in March, 1868, to be an ensign, the promotion being made "subject to examination." In July, 1868, having never been examined, he was tried by a naval court-martial as a mid- shipman and sentenced to dismissal from the service. Held, that under the circumstances he was properly tried as a midshipman. (16 Op. Atty. Gen., 550; see note to Art. 54, A. G. N., as to promotion of officer under charges.) Amendment of charges. — In a trial by court-martial the charges can not be so amended after arraignment as to entirely ob- literate the original specifications and insert new ones describing wholly different offenses; hence, where the prisoner, pending his trial by court-martial, seeks relief from a civil court l)y habeas corpus, and the charges are found to be wholly insufficient to show jurisdiction in the court-martial, a discharge will be granted. (Ex parte Henderson, 11 Fed. Cas. No. 6.349.) Sufficiency of charges question for court-martial. — \Vhere a charge against a person tried by a military court is within the court's jurisdiction, and is authorized by the Army or Navy regulations, the manner of set- ting out the offense is a matter of pleading, rather than jurisdiction, the sufficiency of which is for the exclusive determination of the court-martial. (Ex parte Dickey, 204 Fed. Rep., 322.) Joinder of charges. — There is no objection to the joinder of separate and incongruous charges in the same prosecution before a court- martial, as such is permitted by the military usage and procedure. (22 Op. Atty. Gen., 589.) _ Unlike the ordinary criminal procedure, when but one indictment, setting forth in one or more counts a single offense or connected criminal transaction, is in general brought to trial at one time, the military usage and pro- cedure permit of an indefinite number of offenses being charged and adjudicated to- gether in one and the same proceeding. (22 Op. Atty. Gen., 589, 595.) With a view to the summary and final action so important in military cases, whenever an officer or soldier has been apparently guilty of several or many offenses, whether of a similar character or distinct in their nature, charges and specifications covering them all should, if practicable, be preferred together and to- gether brought to trial. (22 Op. Atty. Gen., 589, 595.) An indefinite number of offenses may be adjudicated together in one proceeding by a court-martial and a single sentence rendered covering all the convictions. (Rose v. Rob- erts, 99 Fed. Rep., 948.) Not only do _ military usage and procedure permit of an indefinite number of offenses being charged and adjudicated together in one and the same jDroceeding, but the rule is re- cognized that whenever an officer has been apparently guilty of several offenses, whether of similar character or distinct in their nature, charges and specifications covering them all should, if practicable, be preferred together and together brought to trial. (Carter v. McClaughry, 183 U. S., 365, 386.) Additional charges; trial by different courts. — Specifications of charge known to the Secretary of the Navy, by whom a naval court-martial was ordered, when former charges against the accused were prepared by him before another and a distinct court upon a different and distinct matter, may be tried before a subsequent court-martial together with other charges not previously known. (4 Op. Atty. Gen., 410, construing art. 38, act Apr. 23, 1800, 2 Stat., 50.) For reasons which are very manifest, incon- gruous charges may be tried by a court-martial which would vitiate an indictment. It is generally desirable that all charges against an 1028 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 45. officer should be tried by one court; but there is no such restriction on the Secretary of the Na^'y, who may deem it his official duty to cause an officer to be tried. Considerations of the greatest importance to the interests of the ser\'ice, of deference to the wishes of the accused himself, and the due execution of public justice, may induce and require him, without injustice to the accused, not to unite several different charges in one and the same prosecution. (4 Op. Atty. Gen., 410, 414.) Consent on the part of the accused could not give jurisdiction if it did not exist by law. But where such jurisdiction exists, his wishes might very properly influence the department in its discretionary power in arranging the charges which it felt bound to prefer for trial. (4 Op. Atty. Gen., 410, 414.) If this article had the effect of protecting the accused from con\T.ction upon additional charges known to the convening authority when the former trial was ordered, it is well settled that the defense under it could be made only by plea in bar, or under the general issue of not guiltv, and not by plea in abatement. (4 Op. Atty. Gen., 410, 413.) Even under this restrictive article a new charge, in addition to those exhibited, may be submitted to the same court if some witness material to the support of the charge, who was absent, can be produced; but the court is not to proceed with this new charge without gi\ing the accused time for his defense. Suppose that this witness can not be produced? Can it be supposed that this article was intended to bar any future prosecution of the offense? The charge is not before the court; no decision is made on it; no part of the trial involves it; and the finding of the court does not conclude it, but such new charge may be tried before an- other and distinct court-martial. (4 Op. Atty. Gen., 410, 414.) Lesser offense included in charge. — Where accused was found not guilty of the offense charged, but guilty of a lesser offense, such finding was what is known in the admin- istration of criminal law as a partial verdict, in which the accused is acquitted of a part of the accusation against him and found giiilty of the residue; as when there is an acquittal on one count and a verdict of guilty on another; or when the charge is of a higher degree, in- cluding one of a lesser, there may be a finding by a partial verdict of the latter; as upon the charge of burglarj' there may be a con\'iction for a larceny and an acquittal of the nocturnal entry ; so upon an indictment for murder there may be a verdict of manslaughter, and robbery may be reduced to simply larceny, and a bat- tery into an assault. (Dynes v. Hoover, 20 How., 65, 79; see also note" to art. 8, A. G. N.) Charging same offense under t^vo articles. — See note to article 22, A. G. N.; and see note to article 14, A. G. N., under " Discretionaiy punishment," as to purdsh- ment on couAiction of two charges based on the same transaction; see also note to article 63, A. G. N., as to limitations of punishment. Charging offense previously punished. — See note to article 24, A. G. N., as to punish- ments by commanding officer or reprimand by Secretary of the NaA-y not being a bar to sub- sequent trial by court-martial; see also note to article 53, A. G. N., as to effect of disap- proval of former trial. Absent witness. — See note to Constitu- tion, sixth amendment, under "VI. Con- fronting witnesses"; and see note to art. 57, A. G. N. Art. 44. [Duty of officer arrested.] Every officer who is arrested for trial shall deliver up his sword to his commanding officer and confine himself to the limits assigned him, on pain of dismissal from the service. — (17 July, 1862, c. 204, s. 1, art. 15, v. 12, p. 604.) See note to article 43, A. G. N., as to arrest of accused for trial. Nominal arrest of oflB.cer. — An officer of the Navy against whom charges had been preferred for trial by comt-martial was given the following order by the Secretary of the Na\y: "You are placed under arrest and you will confine yoiuself to the limits of the city of Washington." The facts showed that he was not under "physical restraint" and that the above-mentioned order did not operate to restrain his movements any more than would have been the case had it directed him to re- main in W^ashington to serve as a member of the court-martial. Held, that there was no such "restraint of liberty" in this case as to justify the use of habeas corpus; and that the fear of being forcibly arrested and returned should he leave the city of Washington, if sufficient to keep the officer within the limits of the city, "is a moral restraint, which concerns his own convenience and in regard to which he exer- cises his own \vill. " (Wales v. WTiitney, 114 U. S., 564; see note to sec. 752, R. S.) Art. 45. [Proceedings of general court-martial.] When the proceedings of any general court-martial have commenced, they shall not be suspended or delayed on account of the absence of any of the members, provided five or more are assembled; but the court is enjoined to sit from day to day, Sundays excepted, until sentence is given, unless temporarily adjourned by the authority which convened it.— (17 July, 1862, c. 204, s. 1, art. 16, v. 12, p. 604.) 1029 Sec. 1624, Art. 45. Pt. 2. REVISED STATUTES. The Navy. See notes to articles 45 and 46, A. G. N., as to absence of members. Right to speedy trial. — This article in- tends to secure to the accused a speedy and impartial trial \vhen charged with offenses and jMit under arrest, and to give him protection against delays of justice and protracted arrest. It is enacted in the spirit of the sixth article of the amendments to the Constitution of the United States. (6 Op. Atty. Gen., 200, 207; see note to Constitution, sixth amendment.) Reqviirenient directory only. — The provi- sions of article 45, A. G. N., are directory only and not mandatory; hence the adjournment of a court-martial from Tuesday to Friday without permission from the convening author- ity, although an irregularity, did not invalidate tlie proceedings. (C. M. 0. 27, 1898, pp. 1-2; Nay. Dig. 1916, p. 20.) A general court-martial should not adjourn over a holiday or any other day during a trial, except Sunday, without permission being ex- pressly granted,, although such action would not necessarily invalidate the proceedings. (C. M. O. 51, 1914, p. 4; Nav. Digest, 1916, p. 20.) Procedure governed by regulations and usage. — -The "'Regulations for the Adminis- tration of Law and Justice," estabUshed by the Secretary of the Navy with the approval of the President on April 15, 1870, regulating the pro- cedure of courts-martial, have the force of law. (Ex parte Reed, 100 U. S., 13, 22, citing sec. 1547, R. S.; see note to art. 43, A. G. N., under "Charging offenses not specifically provided for," and note to art. 42, A. G. N., under "Character e\idence.") The law by which courts-martial are bound to execute their duties and to regulate their mode of proceeding in the absence of positive enactments is ' " the general usage of the military ser\T.ce or what may not unfittingly be called the customary military law." (Smith v. Whitney, 116 U. S., 167, 179, approving. Dynes V. Hoover, 20 How., 65, 82; see also note to art. 29 , A . G . N . , as to procedure of courts ofinquiry.) In the absence of a regulatory statute the proceedings of courts-martial are controlled hy the usages and customs of the military' service, othenvise called customary military law, and not by the common-law rules appli- cable to the proceedings of civil courts. (Kirk- man v. McClaughry, 160 Fed. Rep., 436.) Evidence after coirrt cleared. — The ac- cused, charged with disobedience of orders, de- cUned to plead to the charges, but objected to the jurisdiction of the court on the gi-ound that his term of service expired pre\dous to the time mentioned in the specifications, and that his term of service commenced before the act of March 2, 1837 (sec. 1422, R. S.), and that there- fore he was no longer amenable to the laws of the United States for the government of the Na\'y. To sustain this plea the accused offered no evidence whatever, nor was such evidence offered to the court in his presence or while the court was in public session. Instead, immedi- ately after the plea was submitted, the record shows that the coiirt was cleared to deliberate on said plea, and that the muster book and transfer roll of a certain vessel were produced by order of the coiut; and that, it appearing therefrom that the prisoner entered the service previous to the act of March 2, 1837, and that his term of service expired on October 20, 1839, it was determined that the court was not in- vested with any legal authority over the person or property of the prisoner and could exercise no jurisdiction over him whatever. Held, that the proceedings of the court were irregular in receiving evidence after the court was cleared. (3 Op. Atty. Gen., 545.) See below, "Public sessions." Presence of accused during trial. — In cases where the prisoner's life or liberty is in peril, he must be present during the whole of the trial and until final judgment. If absent, there is a want of jurisdiction of the person, and the court can not proceed with the trial or re- ceive the verdict or pronounce the final judg- ment. A prisoner in custody can not waive anything by his absence. In the case of a naval prisoner, it is even more important that he be present at his trial by court-martial. (Weirman V. U. S., 36 Ct. Cls., 236.) But where the offense is trivial, and Ufe or liberty is not in jeopardy, the rule is to be re- laxed; accordingly, held, that the proceedings of a naval court-martial would not be declared invaUd by reason of the absence of the accused where the offense and punishment were trivial. (Weirman v. U. S., 36 Ct. Cls., 236.) See note to Constitution, fifth amendment, under "V. Presence of accused at trial." Public sessions. — The statutes regulating the covu-se of procedure in military courts show that, in contemplation of law, these courts stand on the same footing as other judicial tri- bunals of the country. Their sittings, for exam- ple, are free to the attendance of the pubUc, like those of other coin-ts, and, as if to guard against improper secrecy in the case of courts-martial held in the Army, the statute expressly pro- vides that no proceedings or trials in such courts shall be carried on except between the hours of 8 in the morning and 3 in the afternoon, unless in cases which in the opinion of the officer ap- pointing the court requii-e immediate example. (11 Op. Atty. Gen., 137, 141.) That a court-martial trjdng a petty ofiicer of the Navy permitted the judge advocate to be present for a short time during a closed session of the court, in violation of the act of July 27, 1892 (27 Stat., 277), though a disregard of the defendant's legal rights, was nevertheless an error in procedure only, and was not, therefore, a gi'ound for a wiit of habeas corpus. (Ex paite Tucker, 212 Fed. Rep., 569. Note.— The act cited was entitled "An act to amend the Arti- cles of War, and for other purposes," and did not relate to naval courts-martial. Similar provisions for the Navy was then contained in Navy regulations since embodied in "Naval Courts and Boards," and not in any statute.) See above, "Evidence after court cleared." Defense of insanity. — That a defendant on trial for desertion before a court-martial was shown to have been in a "haze" or "stupor" at the time in question, held insufficient under a plea of not guilty to raise the issue of insanity which would deprive the court of jurisdiction under regulations contained in the Army man- ual for courts-martial. (U. S. v. Hunt, 254 Fed. Rep., 365.) 1030 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 46. "Irresistible impulse" is not a defense to crime where accused had mental capacity to distinguish between right and wi'ong, and to know that the particular act charged was wi'ong. (C. M. O. 24, 1914.) If the court-martial is of opinion that ac- cused is insane during his trial, its duty is to suspend proceedings and inform the convening authority of its opinion in order that, if the cir- cumstances warrant, a board of medical survey may be ordered. \Mien, instead of doing this, the court proceeds -vvith the trial and records findings on the charges and specifications, it is the duty of the convening authority not to ac- cept the court's findings; and the record should be returned to the court in order that such find- ings may be revoked, as there has been no legal trial, the accused has not been placed in jeop- ardy, and the status of his case is the same as though he had never been arraigned. (C.M.O. 24, 1914.) Absence of member as affecting rank of majority. — An officer of the Navy was tried by a general court-martial composed of 13 members, six of whom were junior in rank to the accused and seven of them, including the president, were his seniors. After the trial commenced, one of the members who was senior to the accused became sick, and the court proceeded in his absence, more than one- half of the remaining members, exclusive of the president, being junior to the accused. The absent member later returned, but was not permitted by the court to resume his seat as a member. The accused was sentenced to be dismissed, which sentence was duly executed. Held, that the court was organized and com- menced its proceedings in strict conformity with the Articles for the Government of the Navy (art. 39, A. G. N.,) and had complete jurisdiction; and that under the said articles (art. 45, A. G. N.) it was required to continue its sessions notwithstanding the absence of any member so long as five remained. The court, therefore, had complete jurisdiction while the member in question was absent. It is doubtful whether the court had lawful authority to ex- clude him on his return, but such action did not invalidate the proceedings. The provi- sion requiring a majority to be senior in rank to the accused is confined to the organization of the court, and does not extend to its subsequent proceedings. (7 Op. Atty. Gen., 98; see arts. 46 and 47, A. G. N., and notes thereto.) Court reduced below minimum. — See note to article 46, A. G. N. Errors of procedure not fatal. — See note to article 53, A. G. N., and see notes above under this article. Evidence before courts-martial. — See note to article 42, A. G. N. Art. 46. [Absence of members.] No member of a general com't-martial shall, after the proceedings are begun, absent himself therefrom, except in case of sickness, or of an order to go on duty from a superior officer, on pain of being cashiered.— (17 July, 1862, c. 204, s. 1, art. 16, v. 12, p. 604.) Court reduced beloAv minimum. — If dur- ing the pendency of a trial before a court martial composed of five members, one of its members fall sick and be thereby disabled from sitting with the court for several days, the re- maining four members may adjourn the court from day to day until he is able to attend with them again to complete the trial. Of course, the court would not consent to wait too long on account of the absence of a member; if the delay became inconveniently protracted, they would not fail to report it to the proper authority ; or if death ensued, to consider the commission or warrant as at an end. (4 Op. Atty. Gen., 17.) Effect of unauthorized absence. — The Crision which forbids a member to absent self except in case of sickness or in obedi- ence to orders is one for the regulation of the conduct of the members themselves, and per- sonally subjects them to censure; but it has no bearing upon the question of the jurisdiction of the court or the legality of its proceedings. (7 Op. Atty. Gen., 98.) A member of the court may willfully absent himself and be tried and cashiered for it, with- out in the least affecting the legality of the pro- ceedings of the court. (7 Op. Atty. Gen., 98.) The Articles for the Government of the Navy (art. 45, A. G. N.) makes the trial valid if five members assemble. It is contemplated that members may be ordered elsewhere. The pro- %-ision for this penalty shows that it was antici- pated members might be absent for other causes, upon which the law, instead of declare ing the proceedings void in such case, make, them valid and punishes the offending absentee (7 Op. Atty. Gen., 98.) The cause of the absence, as distinguished from the absence itself, does not in any way affect the question of legality or jurisdiction. It certainly might when the absent member is called upon to justify his own acts, but not as between th^ accused and the law. (7 Op. Atty. Gen., 98.) A member absent on account of sickness was not permitted by the court, upon his return, to resume his seat. This was error on the part of the court, but it does not follow from tliis that the court lost jurisdiction over the accused and that their subsequent proceedings were void. They may have acted irregularly or illegally toward their colleague without rendering their subsequent acts as to the accused void. (7 Op. Atty. Gen., 98.) Absence at revision of proceedings. — • It makes no difference whether the absence of a member or members happens pending the original proceedings or on the meeting for revision. In either contingency it is one and the same court with unbroken continuity of existence and unimpaired capacity as to the same subject matter. (7 Op. Atty. Gen., 338.) Where a general court-martial duly organized by order of the Secretary of War was, after re- porting, recalled by him to reassemble to revise its sentence and on reassembling two of the 1031 Sec. 1624, Art. 47. PL 2. REVISED STATUTES. The Navy. original members were absent (for whatever cause), but a legal quorum of the court still remained, held ih&t the absence of two members at the reassembling of the court did not impair its jurisdiction or otherwise affect its power to review the sentence; and that it still was the same continuous and competent court as when it first assembled under the order of the Secre- tary. (7 Op. Atty. Gen., 338.) The law makes provision as to the number of officers to be ordered on a general court-martial, but none as to the number who must actually attend and participate in its proceedings be- yond a fixed minimum. (7 Op. Atty. Gen., 338.) See note to article 53, A. G. N., as to pro- ceedings in revision. "Cashiered" and "dismissed" distin- fuished. — In Great Britain it seems that a istinction is recognized to exist between these terms, the one "cashiered," including an in- capacity for future service. (2 Op. Atty. Gen., 286.) Where an article of war under which an accused was tried prescribed as the punishment of his offense that he shall be "dismissed from service, ' ' the sentence that he be dismissed from the service, instead of that he be cashiered, was conformable to law, and in such case the dis- tinction between the two terms is immaterial. (2 Op. Atty. Gen., 286.) For other cases, see notes to articles 45 and 47, A. G. N. Art. 47. [Return of absent member; witness recalled.] Whenever any member of a court-martial, from any legal cause, is absent from the court after the commencement of a case, all the witnesses who have been examined during his absence must, when her is ready to resume his seat, be recalled by the court, and the recorded testimony of each witness so examined must be read over to him, and such witness must acknowledge the same to be correct and be subject to such further examination as the said member may require. Without a compliance with this rule, and an entry thereof upon the record, a member who shall have been absent during the examination of a witness shall not be allowed to sit again in that particular case. — (17 July, 1862, c. 204, s. 1, art. 17, V. 12, p. 605.) amined in the presence of the judge is one that can not be safely departed from. The judg- ment which we form upon testimony is greatly dependent upon the conduct of the witness dur- ing the examination and upon the manner in which that testimony is delivered. It is the right of an accused person that the e\ddence in his case should be given in the presence of all his judges; and it is much more important to secure the correct administration of public jus- tice in this regard than to enforce punishment in any particular cases. (2 Op. Atty. Gen 414.) Could not resume seat in absence of leg- islation.--As to whether a member of a naval court-martial who participated in the proceed- ings of the same at the commencement of its sitting, but who, from sickness, had been unable to attend during the trial of the whole case, which was concluded in his absence, could afterwards, on recovering his health, resume his seat again as a member of the court for the next trial without a new precept issued, should be decided according to the settled practice in such cases. As the practice has been to regard the member thus situated as disqualified, the executive department should be governed by the precedents so established. Certainly he could not be permitted to take his seat in a case aheady pending. (4 Op. Atty. Gen., 7.) It is irregular for a member of a court-martial who has been absent during a portion of the trial, and who did not hear the witnesses testify, to take part in sentencing the accused. In this case the sentence was pronounced by five offi- cers, one of whom had been absent from the coiirt several days during the trial and during the examination of witnesses. The record of the Member absent at commencement of proceedings. — \\Tiere a general court-martial has been ordered by the Secretary of the Navy and the names of officers and supernumeraries to compose it are set forth in the warrant, and, by reason of nonattendance of one of the officers on the first day a supernumerary takes his place and the court thus organized proceeds to business, the absent member can not properly thereafter be added to the court upon his arrival unless the case on trial has been disposed of, if at all. (1 Op. Atty. Gen., 698, construing articles of April 23, 1800, 2 Stat., 51. In this case the order convening the court pro\dded that it was to consist of seven members named therein and three supernumeraries also named therein or any five or more of them.) There is nothing in the acts of Congress on this subject nor in any of the analogies of the law in relation to civil tribunals, which author- izes a newly arrived member to be superadded at all to a court which has been once legally organized. (1 Op. Atty. Gen., 698.) The 39th article of the Rules and Regula- tions for the Government of the Navy (act Apr. 23, 1800, 2 Stat., 51 ), seems to conteinplate the unity and immutabihty of a general court- martial which shall have been once constituted and shall have commenced its session. The members whose absence is therein spoken of are the members who shall have qualified as mem- bers of the court, not those who shall merely have been named in the warrant as members. (1 Op. Atty. Gen., 698. The article referred to contained the same provisions as articles 45 and 46 of secrion 1624, R. S.) Importance of memlDers hearing testi- mony. — The rule that \\itnesses should be ex- 1032 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 48. examination of these witnesses was read to him and his judgment was consequently founded upon the testimony of witnesses who had not been examined in his presence. If he was thus disqualified to sit in judgment upon the ac- cused, there was no competent tribunal to award sentence against him: Held, that the offi- cer was disqualified to pronounce judgment in this case ; and that the sentence was illegal and void ; that the accused is entitled to be restored to his rights as if such sentence had not been pronounced or approved . ( 2 Op . Atty .Gen. , 414 . ) Error of court in excluding member on return. — In practice it is unusual for members who have not heard the whole trial to partici- pate in giving judgment; but there is no law to prohibit their doing so, or to compel them if they refuse. It is true that not having heard a portion of the witnesses testify, so as to judge of their credibility from their appear- ance and manner of testiiying, a member who had been absent on account of sickness was without some of the means of proper judgment. The case might have turned upon the credi- bility of a ^\'itness examined when he was ab- sent. The appearance and manner of the wit- ness might have concluded that question. No mere subsequent reading of the evidence can supply full means of knowledge in this respect. However, held, that it was error for the court to exclude such member from resuming his seat, as the court is nowhere clothed with power to expel a fellow member; and that whether or not the absent member shall act upon his return must depend upon his own views of propriety and not upon those of the court. (7 Op. Atty. Gen., 98; see note to art. 46, A. G. N.) Consent of accused. — Where the question was raised as to the right of a member to resume his seat after being absent during a portion of the trial, it was considered so far doubtful as to induce the accused to tender his consent to waive all question as to this point, and the mem- ber was accordingly not permitted by the court to resume his seat. Held, that this action of the accused could neither confer power upon the member to resume his seat, nor affect the juris- diction or authority of the coiu-t to proceed without him. These depended upon the law and not upon the act of the accused. (7 Op. Atty. Gen., 98, 102.) Irregularities not fatal —The absence of a member of the court during the trial of the ac- cused, and the erroneous action of the remaining members in excluding him upon his return, if presented to the President as the ground of a new trial, might or might not have been worthy of consideration in that relation. It was a mere incidental irregularity in form, wholly inde- j pendent of the merits of the case, and might j then have been cured. But after the sentence of dismissal has been confirmed and executed, it is too late for the accused to raise the question of such irregularity, just as it is then too late for the Government to take lawful steps in the premises for the further investigation of the merits, which, if the question had been made drior to the discharge of the court and the ap- proval of its sentence, might have been done. (7 Op. Atty. Gen., 98.) Art. 48. [Suspension of pay.] Whenever a court-martial sentences an officer to be suspended, it may suspend his pay and emoluments for the whole or any part of the time of his suspension. — (17 July, 1862, c. 204, s. 1, art. 18, 12, p. 605.) V. When sentence effective. — The effect of a sentence of a court-material suspending from the service for three years "from this day," upon hah pay, a lieutenant of the Marine Corps, and ordering a reprimand by the Secretary of the Navy, is to suspend half the officer's pay from the date of the confirmation of the sentence, forward, during the term of three years. Until the confirmation he is en- titled to receive full pay as before trial. The authority of a naval court-martial to affect by its sentence the pay of an officer subject to its jurisdiction is conferred by the act of April 23, 1800, article 40 (2 Stat., 51; art. 48, sec. 1624, R. S.). The limitation imposed by this article is clear, and accurately defined. The power of a court to suspend the pay and emoluments of an officer does not extend beyond the time of his suspension from service. It is incident to that suspension from service, and can only be coextensive in point of time with the sus- pension. (4 Op. Atty. Gen., 323; see art. 53, A. G. N., as to confirmation of sentence.) Suspension "with pay. — A sentence of suspension, merely, by a naval court-martial does not deprive the party of pay and emolu- ments. (6 Op. Atty. Gen., 200.) Officers and enlisted men in the naval serv- ice do not inciu" any forfeiture or loss of pay by confinement or suspension from duty under sentence of a court-martial unless the forfeiture or loss be imposed by the sentence. (15 Op. Atty. Gen., 175.) See note to article 54, A. G. N ., as to remission of part of sentence. Forfeiture of allowances. — When an of- ficer in the Army is suspended from duty he is not entitled to allowances. In this case the officer was sentenced to be suspended from rank and duty for 12 years, and "to forfeit one-half of his monthly pay every month for the same period." (Swaim v. U. S., 165 U. S., 553.) Extra pay on discharge. — Where a vol- unteer officer in the military service of the United States was sentenced by a court-martial to suspension from rank and pay for a certain period, before the expiration of which he was mustered out of the service and discharged, held that the sentence did not work a forfeiture of the three months' extra pay provided by the act of March 3, 1865, section 4 (13 Stat., 497), for volunteer officers upon being mustered out of the service, but merely deprived the officer, dming his continuance in service and while it remained in force, of his regular current pay. (13 Op. Atty. Gen., 16.) Suspension; continuing punishment; ef- fect of promotion. — See note to article 54, A. G. N. 1033 Sec. 1624, Art. 52. PL 2. REVISED STATUTES. The Navy. Art. 49. [Prohibited punishments.] In no case shall punishment by flog- ging, or by branding, marking, or tattooing on the body be adjudged by any court-martial or be inflicted upon any person in the Navy. — (17 July, 1862, c. 204, s. 1, ai-t. 8, v. 12, p. 603. 6 June, 1872, c. 316, s. 2, v. 17, p. 261.) See note to article 30, A. G. N., as to restric- tion upon use of irons; and see note to article 63, A. G. N., as to cruel and un- usual punishments. Art. 50. [Sentences, how determined.] No person shall be sentenced by a com-t-martial to suffer death, except by the concurrence of two-thirds of the members present, and in the cases where such punishment is expressly provided in these articles. All other sentences may be determined by a majority of votes.— (17 July, 1862, c. 204, s. 1, art. 19, v. 12, p. 605.) Art. 51. [Adequate punishment; recommendation to mercy.] It shall be the duty of a court-martial, in all cases of conviction, to adjudge a punishment adequate to the nature of the offense; but the members thereof may recommend the person convicted as deserving of clemency, and state, on the record, the reasons for so doing. — (17 July, 1862, c. 204, s. 1, art. 21, v. 12, p. 605.) Art. 52. [Authentication of judgment.] The judgment of every court- martial shall be authenticated by the signature of the president, and of every member who may be present when said judgment is pronounced, and also of the judge-advocate.— (17 July, 1862, c. 204, s. 1, art. 22, v. 12, p. 605.) Death of member before sig^ning rec- ord. — The death of one of the members of a general court-martial after sentence had been imposed but before he had appended his signa- ture to the sentence as required by article 52, A. G. N., does not render the sentence void. It is sufficiently authenticated if attested by the other members of the court. (23 Op. Atty. Gen., 550.) Tliis proxision concerning authentication is embraced in the British naval laws from which many of ours ha^'e been borrowed . The British article is as follows: "If the prisoner be found guilty of a breach of any of the articles of war established by law, the court shall consider and determine the punishment proper to be inflicted in accordance therewith. The judge advocate shall draw up the sentence accord- ingly, being careful to specifj^ therein the charge, or substance of it; and the same shall be signed by every member of the court, by way of attestation, notwithstanding any differ- ence of opinion thei'e may have been among the members." (23 Op. Atty. Gen., 550.) The purpose of the British and American articles is doubtless the same. They are intended to direct the officers of the court to sign the sentence, notwithstanding they may not have concurred in the decision, in order that the sentence may be known with cer- tainty to have been correctly recorded. The article orders officers, under military discipline, to sign the sentence. It does not say that the fact that such sentence has been pronounced must be taken as nonexistent, however clearly it can be proved, if they or some of them are not in a position to sign as directed. It was not the intention that in a case like the present the trial and sentence should go for naught. (23 Op. Atty. Gen., 550.) Record should contain all the evi- dence. — As no sentence of a naval court-martial can, under the Articles for the Government of the Na\'y, be carried into execution until con- firmed by the commander of the fleet or by the officer ordering the court or in certain cases by the President of the United States (act Apr. 23, 1800, 2 Stat., 45), it is essential that the record should contain all the e\idence; and in order to a confirmation such e^-idence should sustain, in the opinion of the superior officer, the finding of the court. Tlie mere statement by the court of the inferences which it drew from the e\'idence, unaccompanied by the e\i- dence itself, was a serious defect in the record, and the commanding officer was correct in not appro\'ing the judgment of the coiut. (3 Op. Atty. Gen., 545; compare note to Art. 53, A. G. N., under '.'Approval of sentence and not of whole proceedings required.'') Responsibility of court and judge advo- cate. — The court and judge advocate are re- quired by law to keep a true record of the pro- ceedings. This is not made the duty of any other officer or sen'ant of the Government. The responsibility and the power both belong to these officers and not to anv other. (23 Op. Atty. Gen., 23, 27.) Record must show jurisdictional facts. — A court-martial organized under the laws of the United States is a court of special and limited jurisdiction. It is called into ex- istence for a special pui'pose and to perform a particular duty. When the object of its crea- tion has been accomplished it is dissolved. To give effect to its sentence it must appear affirmatively and unequivocally that the court was legally constituted; that it had jurisdiction; that all the statutory regulations governing its proceedings had been complied with; and that 1034 The Navy. Pt. 2. REVISED STATUTES. Sec. 1624, Art. 52. its sentence was conformable to law. There are no presumptions in its favor so far as these matters are concerned. It is not sufficient that jurisdiction may be inferred argumentatively from its averments. Their authority is statu- tory and the statute under which they proceed must be followed throughout. The facts neces- sary to show their jurisdiction and that theu' sentences were conformable to law must be stated positively ; and it is not enough that they may be inferred argumentatively. (Runkle v. U.S., 122 U.S., 543, 555.) Omission of record to shew jurisdic- tional facts. — Where the due convocation of a court-martial with jurisdiction to try offenses of the class in question is established on the face of its record, the existence of a par- ticular fact not so shown, but acted upon by the coiirt-martial and necessary to its jurisdic- tion over the particular case, may be proven in support of its judgment upon a collateral attack. Such evidence does not change the court-martial record, but simply meets the collateral attack by showing that at the time of trial the basis existed for the exertion by the court of the authority conferred upon it. Gen- eral expressions found in some of the reported cases to the effect that, wherever a fact upon which the jurisdiction of a court of limited jurisdiction depends is questioned, it must appear in the record that such fact was estab- lished, should be limited in accordance with this ruling. (Givens v. Zerbst, 255 U. S. 11, 20, affirming ex parte Gi\dns, 262 Fed. Rep., 702.) The complete right to collaterally assail the existence of every fact which was essential to the exercise by a court-martial of its authority, whether appearing on the face of the record or not, is wholly incompatible with the concep- tion that, when a collateral attack is made, the face of the record is conclusive. Such expres- sions as to the face of the record contemplate, not the record assailed by the collateral attack, but the record established as the result of the proof heard on such attack. (Givens v. Zexbst, 255 U. S., 11. 20, affirming ex parte Givins, 262 Fed. Rep., 702.) In a habeas corpus proceeding evidence was admissible to prove the military status of the relator at the time of his trial and conxdction by an Army court-martial, where the record of the court-martial was silent on the subject beyond shomng that he was charged as a captain in the Army. (Givens v. Zerbst, 255 U. S. 11, affirm- ing ex parte Givens, 262 Fed. Rep., 702.) It is not necessary that every fact essential to the jiirisdiction of a court-martial and the competency and qualifications of its members should be set out in the record in each case, but with respect to formal matters relating to the creation of the court, such as a recital that an order of the War Department was "by direction of the President, ' ' or the designation of the rank and official position of officers, regularity will be presumed. (McRae v. Henkes, 273 Fed. Rep., 108.) That an order convening a court-martial was not signed personally by the department com- mander, but by a staff officer by his"command," and that the department of which he was in command did not appear below his personal signature, held not to render it invalid; the objection related to a matter of form and not of substance. (McRae v. Henkes, 273 Fed. Rep., 108.) That the record of the com"t-martial did not show that the retired officers who served as members had been regularly detailed to active duty with their consent or as otherwise provided by statute did not render the judgment and sentence void and subject to collateral attack. Indeed, such facts could not appropriately be made a part of the record no more than facts shomng that the members of the court had been commissioned as officers. (McRae v. Henkes, 273 Fed. Rep., 108.) Although it was necessary that each member of the court be fully competent to sit, the order convening the court and appointing the detail, and the resulting service and action taken by those detailed, raise the presumption that its members were competent and possessed all the necessary qualifications entitling them to sit as such. (McRae v. Henkes, 273 Fed. Rep., 108, reversing ex parte Henkes, 267 Fed. Rep., 276.) Where the record of a trial before a court- martial is defective, in faUing to show who was the originator or signer of the charges against the accused, and who is to be treated legally as the accuser or prosecutor, evidence aliunde is admissible to supply the information when the proceedings are attacked years later as null and void on the gi'ound that the commanding general was legally incompetent to convene the court, because he had preferred the charges. In such case sworn statements of officers may be admitted in order not to impeach the validity of the proceedings, but to supply facts which the record fails to disclose. (16 Op. Atty. Gen., 106.) For other cases, see notes to article 38, A.G. N., under "Evidence of convening authority's power" ; article 40, A. G. N., under "Judge advocate not sworn"; and article 43, A. G. N., under "Waiver of objection by the accused." Correction of record. — See above under "Omission of record to show jurisdictional facts"; and see below under "Conclusiveness of record." The Secretary of War is without authority to correct, amend, or to take any action inconsist- ent with the record of a court-martial duly con- vened upon a proper and sufficient charge. This power is inherent in a court-martial; but such correction or amendment can be made only when the court-martial is in session, and when at least five of the members of the court who acted upon the trial are present, and then in the presence of the judge advocate. After the court has been dissolved, and the sentence ap- proved and executed, such amendments or corrections can not be made. (23 Op. Atty. Gen., 23.) Conclusiveness of record. — The record is that which the court certifies to have transpired on the trial and embodies the action of the court. The fact that the court, in due and legal form, announces that it did so and so, or that so and so transpired, makes that record and the fact, and no one except the court itself can lawfully alter that record. If it were to be held other- wise, there is not a record filed in the depart- ment that could not be subject to attack by ex parte affidavits, and that, too, at a time when 54641°— 22- -66 1035 Sec. 1624, Art. 53. Pt. 2. REVISED STATUTES. The Navy. the officers of the court miRht be dead or scat- tered to the ends of the earth and unable to defend the solemn certificates which they made; and all the judgments of courts-martial as filed and acted on would be open to perpetual con- tradiction on subsecjuent assertions of interested parties which it would be impossible to meet or disprove. (23 Op. Atty. Gen., 23, 28.) In this case the record was in every respect regular on its face. But after the sentence was carried into execution, the accused filed an affi- da\'it of himself and also one made by one of the members of the court-martial, stating that a certain ^vitness testified at the trial , whereas the record did not show that the person named in the affidavits was used as a ^\•itnes3 in the case. It was contended by the accused that the re- vieAving authority never had jurisdiction to approve and execute the sentence, because he never had the whole record before him; and that his action was accordingly void. Held, that the record of a court of competent jurisdic- tion is, as against collateral attack, conclusive of its ovm verity ; that this is settled and accept- ed law; and that the same doctrine as to conclu- siveness is also applicable to courts-martial. (23 Op. Atty. Gen., 23.) See above, under "Omission of record to show jurisdictional facts," and "Correction of rec- ord." Copies of records; rights of pubUc; evi- dence in other cases. — See note to section 882, Revised Statutes; and note to article 34, A.G.N. Public justice and private right require that the Secretary of the Navy and his subordinates shall not withhold their testimony in regard to the contents of the record of a com-t-martial, after the proceedings have been consummated by the action of the proper re\dsory authority, when required to give it by the summons of a State court. (11 Op. Atty. Gen., 137.) When the proceedings of a naval court-mar- tial are at an end, through the action of the com- petent re^'isory power, the contents of the rec- ords of such proceedings are not State secrets; nor are the records of the courts to be regarded as the minutes of official, confidential transac- tions, ^vithin the meaning of the rule as to "privileged communications." (11 Op. Atty. Gen., 137.) Any person having an interest in the record of a naval court-martial on file in the Navy De- partment is entitled to have an exemplified copy of it after the proceedings are consummated by the action of the proper revisory authority. (llOp. Atty. Gen., 137.) The many instances in which court-martial records might be made available for the pur- poses of justice clearly show that any rule by which the right to inspect and receive copies of the records of the proceedings of military tri- bunals would be limited and restricted would operate to affect disastrously the administra- tion of justice in cases in which the liberty, hap- piness, and life of the individual are often in- volved, and the safety of the State itself may be concerned. (11 Op. Atty. Gen., 137.) The records of courts-martial should be re- garded as standing upon the same footing, so far as the parties affected and the community at large are concerned, as the records of the ordinary tribunals of civil and criminal juris- diction. The legislation of Congress shows that it was intended to guard against improper secre- cy in the cases of courts-martial. (11 Op. Atty. Gen., 137.) The head or an officer of a department may properly have the custody of records of covu-ta- martial, but such custody does not involve any right of exclxisive control over the documents, nor does it imply any right to withhold the con- tents of them. Such records, it is plain, must be deposited and remain somewhere. They can not stay in the possession of the courts- martial, because they have no existence after the trials. They are then dissolved sine die. The most appropriate place of custody is undoubtedly the archives of the department charged with the administration of the branch of the military service in which the courts were respectively convened. With respect to the records of naval courts-martial on file in the department, the Secretary of the Nav^^ or the officer of the department in whose peculiar care they may be placed stands in relatively the same attitude as the clerk or prothonotary of a civil court with respect to the records of cases instituted and determined in the court of which he is an officer. (11 Op. Atty. Gen., 137, 143.) A paper which must be kept on file in a des- ignated office and which can not be removed therefrom pertains to that office and so becomes official within the meaning of section 882, Re- vised Statutes. (Cohn v. tJ. S., 258 Fed. Rep., 355.) If the departments at Washington can be compelled to produce in any part of the country the original of any documents or papers they may have on file, the greatest embarrassment and confusion to the department would be the consequence. (Cohn v. U. S., 258 Fed. Rep., 355.) Art. 53. [Confirmation of sentence.] No sentence of a court-martial, ex- tending to the loss of life, or to the dismissal of a commissioned or M^arrant offi- cer, shall be carried into execution until confirmed by the President. All other sentences of a general court-martial may be carried into execution on confirmation of the commander of the fleet or officer ordering the court. — (17 July, 1862, c. 204, s. 1, art. 19, v. 12, p. 605.) "The Secretary of the Navy may set aside the proceedings or remit or mitigate, in whole or in part, the sentence imposed by any naval court-martial convened by his order or by that of any officer of the Navy or Marine Corps." (Act Feb. 16, 1909, sec. 9, 35 Stat., 621.) The Judge Advocate General of the Navy "shall, under the direction of the Secretary of the Navy, receive, revise, and have 1036 The Navy. Pt. 2. REVISED STATUTES. Sec. 1624, Art. 53. recorded the proceedings of all courts- martial * * * in the naval service." (Act June 8, 1880, 21 Stat., 164.) "Such finding and sentence shall be subject to review by the convening authority, and by the Secretary of the Navy, as in the cases of other courts-martial. ' ' (Act Apr. 9, 1906, sec. 3, 34 Stat., 104-105, relating to courts-martial for the trial of midshipmen at the Naval Academy.) Sentence inoperative vmtil conftrnied.. — Under the laws of the United States, the sen- tence of a court-martial in case of death or dis- mission is not perfected until it shall have received the approbation of the President. Without his sanction it is no more a perfect sentence than a bill which has passed both houses of the National Legislature but which has not yet received the approbation of the President is an act of Congress. In both cases his approbation is necessary to consummate the measure. (1 Op. Atty. Gen., 233, 241.) According both to plain law and universal practice, the sentences of naval courts-martial are incomplete and can not lawfully be carried into effect until they have received the ap- proval or confirmation of some revisory power. (5 Op. Atty. Gen., 508, 511.) Without the confirmation of the sentence by the statutory reviewing authority it was a vain thing. (10 Op. Atty. Gen., 64.) Execution of sentence prior to confirma- tion. — If at the time that the act was done by the War Department of actually dismissing the officer, the sentence had not been confirmed by the President, it does not admit of doubt that the sentence and thus the act done could be confirmed at a subsequent period by him, and this upon the well-settled principle that a sub- sequent ratification is equal to a prior command . Whether or not in the interval that ensued between the informal dismissal of the officer and the act done by the President which oper- ated to confirm the sentence the officer is to be considered as having been an officer of the Army, not decided. (16 Op. Atty. Gen., 298.) An officer was convicted by court-martial and sentenced to dismissal. The sentence not having been approved by the President, the Secretary of the Navy addressed a letter to the officer purporting to dismiss him from the naval service, not pursuant to the sentence of the court but because of facts disclosed by the record. Held, that such letter was an attempted dismissal of the officer otherwise than piu-suant to the confirmed sentence of a court-martial, and that such power of dismissal did not exist in the President on that date. (16 Op. Atty. Gen., 312.) Pursuant to the Attorney General's opinion above noted (16 Op. Atty. Gen., 312), the Secretary of the Navy addressed a letter to the officer 11 years after his supposed dismissal, declaring the order of dismissal to be illegal and void, and revoking and annulling same by direction of the President of the United States. The name of the officer was thereupon restored to the Navy Register in the original relative position held by him and to which he was en- titled by virtue of his commission. Held, that the order of the President did not operate to restore the said officer to the Navy; he was always there, although by error there was an omission of his name in the register and a fail- ure for some years to recognize him as an officer of the Navy. The only rule that can be adopted is to treat him as having always been nominally, what he always was actually ajid really, an officer of the United States. If positions have been arranged in regard to the rank of other oflicers upon the theory that he was not an officer, those positions should, whenever possible, be altered so as to rectify the error committed by treating him as out of the ser\'ice. Where an officer is illegally dropped he can only find his place again in the grade from which he was dropped, as it would not be in the power of the President alone to give him the rank of a higher gi-ade. It is not necessary to consider in this case to what extent it would be possible to rectify such an error so far as higher grades are concerned. (17 Op. Atty. Gen., 21, 22, 24; see also act of Mar. 3, 1883, 22 stat., 530, "for the relief of Edward Bellows," the officer in whose case this opinion was rendered; and compare note to art. 36, A. G. N., imder "Illegal dismissal revoked.") Until the President has acted in the manner required by the articles of war, a sentence by Army court-martial of dismissal of a commis- sioned officer from service in time of peace is inoperative. Before then it is interlocutory and inchoate only. Accordingly, there being no sufficient evidence that the action of the court-martial which dismissed Maj. Runkle from the Army was approved by the President it follows that he was never legally cashiered or dismissed from the Army. (Runkle v. U. S., 122 U. S., 543, 547, 559.) Approval of sentence and not of whole proceedings required. — Under the articles of war it is the approval of the sentence and not of the whole proceedings that is the prereq- uisite to carrying the sentence into execution. (Carter v. McClaughry, 183 U. S., 365, 384; compare note to art. 52, A. G. N., under "Rec- ord should contain all the evidence"; and see note below as to form of President's action.) Efifect of approval or disapproval. — In the case of a court-martial sentence of death or dismissal, the President's disapproval anni- hilates it; the case stands as if there had been no trial, and is just as open to an order for a court-martial as it was in the first instance. (1 Op. Atty. Gen., 233, 242; see note below as to new trials.) Where a soldier was tried by court-martial for theft and desertion, and having been con- victed of both charges was sentenced by the court, but the proceedings, findings, and sentence were afterwards disapproved by the reviewing officer and the prisoner ordered to be released from confinement and restored to duty: Held, that the action of the reviewing officer was in effect an acquittal by the court; that the accused is in legal contemplation in- nocent of the charges mentioned; and that there is no authority for withholding his pay on account of the alleged desertion. (13 Op. Atty. Gen., 459. In this case, disapproval was for the reason that the court allowed so much of the examination of the only ^vitness for the prosecution to be conducted by means 1037 Sec. 1624, Art. 53. Ft. 2. REVISED STATUTES. The Navy. of leading questions as to destroy the value of the testimony. See note to art. 8, A. G. N., under "Effect of disapproval; desertion;" and see below under "tourt-martial bar to trial in civil court.") After the final sentence of the law is pro- nounced by the superior ofUcers, the charge has passed conclusively into an o ffense beyond dispute, for the judgment of a comt-marlial is conclusive in its effect as to the truth of the charge and as a jucUcial decree is a bar to further proceeding. (19 Op. Atty. Gen., 106, 108.) For other cases, see below, under "Irreg- ularities and false defects." Disapproval of findings in part; effect on sentence. — -Where the sentence is rendered on findings of guilty of several charges with specifications thereunder, and the President, as the reviewing authority, has disapproved of the findings of guilty of some of the specifica- tions, but approved the findings of guilty of a specification or specifications under each of the charges and of the charges, the President does not think proper to remand the case to the court-martial for re\ision, or to mitigate the sentence, or to pardon the accused, but ap- proves the sentence, the judgment so rendered can not be disturbed on the gi'ound that the dis- approval of some of the specifications vitiated the sentence. The analogies of the criminal law bear out the procedure under military law. It can not be assumed that if the court- martial had acquitted on the disapproved findings, the sentence would have been less severe, and that the punishment was there- fore increased by the action of the President. (Carter v. McClaughry, 183 U. S., 365, 385.) It has been repeatedly ruled by the Judge Advocates General of the Army that a duly approved finding of guilty on one of several charges, a conviction upon which requires or authorizes the sentence adjudged, will give validity and effect to such sentence, although the similar findings on all the other charges are disapproved as not warranted by the testi- mony. (Carter v. McClaughry, 183 U. S., 365, 386.) Reconsideration of reviewing author- ity's action. — Where several midshipmen had been dismissed by the sentence of a naval court- martial, which was approved by the President, who very shortly thereafter reconsidered his approval and announced his determination to annul his approval and restore the dismissed officers, but was prevented from doing so be- cause of his sudden death a few days after- wards, held that it is within the competency and power of the present Executive to restore them to their former rank in the Navy, pro- vided it can be done without increasing that class of officers beyond the niunber limited by law. (5 Op. Atty. Gen., 259. This opinion was expressly confined to the case presented and ' ' its particular circiunstances, ' ' and thus ex- cludes all idea of introducing any new doctrine. See 6 Op. Atty. Gen., 369, 370.) It can not be assumed, as a general proposi- tion, either that the President has a power un- limited as to time or circumstances to restore an officer who has been dismissed from the pub- lic service, or that he is in all cases precluded from so doing from the instant he signs his ap- proval of a sentence of dismissal. It is not necessary on this occasion to attempt to discuss or define the extreme limits which restrain his power, on the one hand, or, on the other hand, to fix the limits within which it may be his right and duty to reconsider and annul execu- tive acts. (5 "Op. Atty. Gen., 259.) A sentence of dismissal from the naval service, approved by the President, can not be an- nulled. The officer dismissed can be restored to the Navy only by a new nomination by the President, confirmation of the Senate, and all the requisites to constitute an original appoint- ment to office. (4 Op. Atty. Gen., 274.) An officer of marines was tried by court- martial and sentenced to be cashiered; the sentence was commuted to suspension for a lim- ited period; thereafter the accused was ap- pointed a lieutenant in the Anny. Held, that his case can not, after the lapse of 16 years, be examined with reference to whether the court- martial by which he was tried was legally or- ganized and competent to try him. (5 Op. Atty. Gen., 384.) After the sentence of a court-martial dismiss- ing an officer has been approved and acted on by the President, it can not be revised except for suggestion of absolute niillitj^ in the pro- ceedings as being absolutely void ab initio. The decision of the President in cases of this sort is that of the ultimate judge provided by the Constitution and laws. Like that of any other court in the last resort of law, it is final as to the subject matter. (6 Op. Atty. Gen., 369. ) After the trial and conviction of a commis- sioned or warrant officer of the Navy by a court- martial having jurisdiction of the case, and the approval by the President of the sentence dis- missing him from the service, and such sen- tence has been carried into execution, the President can not reconsider his approval and revoke the sentence of the court. (11 Op. Atty. Gen., 19.) Undoubtedly the President, in passing upon the sentence of a court-martial and giving to it the approval without which it can not be exe- cuted, acts judicially. The whole proceeding from its inception is judicial. The trial, find- ing, and sentence are the solemn acts of a court organized and conducted under the authority and according to the prescribed forms of law. It sits to pass upon the most sacred questions of human rights that are ever placed on trial in a court of justice^righta which in the very na- ture of things can neither be exposed to danger nor entitled to protection from the uncon- trolled will of any man but which must be ad- judged according to law. And the act of the officer who reviews the proceedings of the court, whether he be the commander of the fleet or the President, and without whose ap- proval the sentence can not be executed, is as much a part of this judgment according to law as is the trial or the sentence. When the President, then, performs this duty of approv- ing the sentence of a court-martial dismissing an ofiicer, his act has all the solemnity and sig- nificance of the judgment of a court of law. As it has to be performed under the same sanc- tions, so it draws with it the same consequences . One of these consequences is that where a 1038 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 53. judgment has been regularly entered in a case properly within the judicial cognizance, from which no appeal has been provided or taken, and it has been followed by execution, it is final and conclusive upon the party against whom it is entered. And this effect attaches to the action of the President in approving the sentence of a court-martial dismissing an officer after that approval has been consimimated by actual dismissal, Ql Op. Atty. Gen., 19, 21; see also Runkle v. \j. S., 122 U. S., 543, 557.) No man would assert the power of the Presi- dent to reverse his judicial decision afterwards to the prejudice of the accused. But why should that judgment be any less permanent because it establishes his guilt? It must be accepted as final and conclusi\e in the one case as in the other, because it is the judgment which the law authorizes to settle the rights in controversy, from which no appeal has been given. (11 Op. Atty. Gen., 19, 21, 22.) Courts-martial are judicial tribunals consti- tuted by statutory authority and organized in pursuance of statutory regulations for the ad- ministration of a great and important depart- ment of jurisprudence — the law military. They are, therefore, in the strictest sense courts of justice, ha\ing jurisdiction of a large and in some respects distinct community of our fellow citizens, and taking judicial cognizance of the duties and obligations which the citizen as- sumes when he enters, by enlistment or other- wise, into the military service of the country. Their judgments in cases committed for the consideration and determination are as final, conclusive, and authoritativ^e as those of any judicial tribunal of the country. After the sentence has been approved and carried into effect, there is no re\'isory power by which it can be rescinded, annulled, or modified. It forever stands as the judgment of a court. (11 Op. Atty. Gen., 137.) When the sentence of a court-martial dis- missing a commissioned officer has been law- fully confirmed and executed, the proceedings in the case are no longer subject to review by the President; they have passed beyond his control and are at an end. (15 Op. Atty. Gen., 290.) A commander in the Navy was tried and sentenced to dismissal from service by a naval court-martial. The record of the proceedings and sentence was submitted to the President, who, on June 5, 1874, approved the same. On June 9, 1874, the Secretary of the Navy ad- dressed a letter to the officer, then in Boston, informing him of the apyjroval of the sentence, and stating that from said date (June 9, 1874) he would "cease to be an officer of the Navy." On June 12, 1874, the Secretary addressed an- other letter to the officer, asking him to return the letter of dismissal. On December 8, 1874, the Secretary addressed a third letter to the officer, stating that the sentence of the court- martial "was, on the 9th day of June, 1874, mitigated to suspension from rank, and so forth, to date from that day." Held, (1) that the letter of the Secretary of the Navy of De- cember 8 is satisfactory proof not only of the mitigation of the sentence by_ the President, but that it was mitigated by him on the 9th of June; (2) that the letter of dismissal in execu- tion of the sentence, forwarded by the Secretary on the 9th of June (it being manifest that the complete execution of the sentence by means of that letter could not take place on that , A. G. N., as to noainterference by civil courts with a naval court of inquiry in- vestigating a charge of homicide. Statutes of lirnitation not applicable. — The statute of limitations contained in the articles of war does not apply to courts of in- quiry in the Army, for the oljjects of a court of inquiry are not confined to investigation as preparatory to a court-martial, but extend to the legal procurement of infoiTtiation of any sort material to the military service, or the discipline and government of the Army, and to guide the discretion of him who orders it in regard to a matter under inquiry. (6 Op. Atty. Gen., 239.) It may happen that questions shall arise as to an offense alleged to have been committed by an officer more than two years ago, as to which he ought to be exculpated if innocent, or if guilty dismissed by the President, though not liable to be tried bv court-martial. (6 Op. Atty. Gen., 239.) Art. 58. [Oaths of members and judge advocate.] The judge-advocate, or person ofRciatiiig as such, shall administer to the members the following oath or affirmation: ''You do swear (or affirm) weU and truly to examine and inquire, according to the evidence, into the matter now before you, without partiality." After which the president shall administer to the judge-advocate, or person officiating as such, the following oath or affirmation: ''You do swear (or affirm) truly to record the proceedings of this court and the evidence to be given in the case in hearing." — (17 July, 1862, c. 204, s. 1, art. 25, v. 12, pp. 605, 606.) A court of inquiry may be needed for the very purpose of aacertaining whether an alleged offense was or was not committed within two years, and so informing the mind and guiding the discretion of the executive on the very point of the legality of a court-martial. (6 Op. Atty. Gen., 239.) In the Articles for the Government of the Navy no limitation of time is expressed as to the matters liable to examination by courts of inquiry; nor in those articles is there any as to acts cogniza])le l)y court-martial. How this omission happened, whether accidentally or advisedly, does not appear. In this respect the Articles for the Government of the Navy differ from the articles of war. (8 Op. Atty. Gen., 335j 347, 348.) See articles 61 and 62, A. G. N., and notes thereto. Proceedings and evidence. — 'See note to article 59, A. G. N. See note to article 40, A. G. N., under "Whether oath shoidd be repeated in each case. Responsibility for true record, to article 52, A. G. N. -See note See article 40, A. G. N., and note thereto, as to oaths of members and judge advocate of general courts-martial. Oaths repeated in each case. — The court must be sworn separately and so report in each distinct case. (8 Op. Atty. Gen., 335, 341.) Art. 59. [Rights of party inquired of.j The party whose conduct shall be the subject of inquiry, or his attorney, shall have the right to cross-examine all the witnesses.— (17 July, 1862, c. 204, s. 1, art. 23, v. 12, p. 605.) Whether court should be open or closed. — Comts of inquiiy are, by the general military law, open or closed as the authority ordering the court may determine; and to have them open is the exception, not the rule. (8 Op. Atty. Gen., 223, 229.) Courts of inquiry are inherently closed courts, to which defendants generally, and auditors and spectators occasionally, have access by permission; not of right. (8 Op. Atty. Gen., 335, 346. See note to art. 45, A. G. N., as to procedure of general courts-martial.) Evidence; documentary. — Official letters on file, contemporaneous -with or a part of the incidents to which thoy relate, are competent evidence in a court of inquiry, both for and against a party, as are; official letters which he may have received at the termination of a par- ticular service, the same being, however, sub- Art. 60. [Proceedings ; how authenticated ; use in other cases.] The proceed- ings of courts of inquiry shall be authenticated by the signature of the president ject to explanations. But neither letters of recommendation, nor of condemnation, nor certificates prepared for the occasion, nor even ex parte affidavits, are competent evidence. (8 Op. Atty. Gen., 335, 336.) Experts. — By the military as well as by the civil law, courts have authority to commission experts for the examination of all questions of mental or physical disability. (8 Op. Atty. Gen., 335, 336.) See note to article 42, A. G. N., iinder "Ex- pert witnesses." RiHes of procedure. — ^The constitution and the course of proceeding of courts of inquiry are to be governed by the general statutes and by the common law military as received and prac- ticed in the Army and Navy. (8 Op. Atty. Gen., 335.) 1056 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 61. of the court and of the judge-advocate, and shall, m all cases not capital, nor extending to the dismissal of a commissioned or warrant officer, be evidence before a court-martial, provided oral testimony cannot be obtained. — (17 July, 1862, c. 204, s. 1, art. 24, v. 12, p. 605.) Admissibility in evidence by consent of accused. — A commissioned officer of the Navy can waive the provisions of article 60, A. G. N., and allow proceedings of a court of inquiry to be e\"idence on a coml-martial, the sentence of which may extend to his dismissal; and where, at the request of such an officer, the Secretary of the Navy convened a comt-martial to try hiTT! on matter which had already been the sub- ject of a court of inquiiy, on condition that the proceedings of such court of inquiry be evi- dence, each party having the pri\T.lege, how- ever, of introducing other e\idence, the ac- cused is not deprived of any substantial right, and the sentence of the court-martial is not invahdated. (Mullan v. U. S., 212 U. S., 516; see C. M. O. 46-1917, pp. 13-19, for general note on subject of admissibility in e\'idence before com'ts-martial of the proceedings of courts of inquir\', boards of investigation, and boards of inquest.) Art. 61. [Limitation of trials; general offenses.] No person shall be tried by court-martial or otherwise punished for any offense, except as provided in the following article, which appears to have been committed more than two years before the issuing of the order for such trial or punisliment, unless by reason of having absented himself, or of some other manifest impediment he shall not have been amenable to justice witliin that period. acts cognizable by coiirts-martial. How this omission happened, whether accidentally or advisedly, does not appear. In this respect the Articles for the Government of the Na\'y differ from the Articles of War. (8 Op. Atty. Admissibility in civil sviit. — ^Testimony taken before a court of inquiry can not be put in evidence on a claim against the United States for damages and loss sustained by reason of a collision between a vessel of the Nav>' and a private vessel, unless it be for the purpose of showing that witnesses who have testified be- fore the civil court have sworn differently before the court of inquiry. (The W. B. Ches- ter's Owners t'. U. S., 19 Ct. Cls., 681.) The claimant is a stranger to the proceedings, though the subject of the investigation was the destruction of his schooner by a naval vessel. Even if allowed to be present and take part in the examination of witnesses, it was by cour- tesy only. The e\'idence was ex parte, taken by the United States for their own private use. (The W. B. Chester's Owners v. U. S., 19 Ct. Cls., 681.) This article was added to the Articles for the Government of the Na\y, as article 61 thereof, by act of February 25, 1895 (28 Stat., 680). Historical note. — By article 138 of ' 'Orders, Regulations, and Instructions for the Adminis- tration of Law and Justice in the United States Na\'y," approved by the Secretary of the Na\'y, April 15, 1870, it was provided that "No person in the Navy shall be liable to be tried and punished by a court-martial for any offense which shall appear to have been com- mitted three years before the issuing of the order for such trial, unless the person, by reason of ha\-ing absented himself or some other mani- fest impediment, shall not have been amen- able to justice within that time." The "Orders, Regulations, and Instructions for the Administration of Law and Justice in the L'nited States Navj^"' were issued by the Secretary of the Na\y, iinder the authority of the President, in 1870. Section 1547 of the Re\'ised Statutes is a legislative recognition of the regulations of 1870, and "must be under- stood as giAang to these regulations the sanc- tion of the law." (Smith v. Whitnev, 116 U. S., 167, 180.) The said "Regulations for the Administra- tion of Law and Justice," regulating the pro- cedure of courts-martial, have the force of law. (Ex parte Reed, 100 U. S., 13, 22; compare note to art. 42, A. G. N., under "Character CAidence.") In the 2\jrticle8 for the Government of the Nav>- no limitation of time is expressed as to Gen., 335, 347, 348, Jan. 31, 1857. Article 61, A. G. N., was first enacted by act of February 25, 1895, before which time there was no statute of limitations for \iolation3 of the Articles for the Government of the NaA^y. (31 Op. Atty. Gen., 521, 528.) Desertion in time of war. — ^Article 61 appUes to desertion fi'om the Navy in time of war. In such case the two-year period of limitation commences to run from the date that the offender first absents himself without leave and with the intention of permanently abandoning the service. But he is amenable to trial by coiut-martial after the end of the term for which he enUsted, provided such trial is not barred by the statute of limitations. (Op. Atty. Gen., Feb. 27, 1922, file 26251- 26615:8; see note below, under art. 62, A. G. N.) If the offender has not been discharged or his status otherwise tenninated, he may be tried after expiration of his enlistment, even though he had not in the meantime been arrested or other steps taken to enforce juris- diction. (Op. Attv. Gen., Feb. 27, 1922, file 26251-26615:8.) See note to section 1418, Revised Statutes, under "Detention of enlisted men after expira- tion of enUstment." View that statute of limitations can not be waived. — ^The accused can not be tried by 1057 Sec. 1624, Art. 61. PL 2. REVISED STATUTES. The Navy. court-martial for an offense of more than two years' standing prcAnous to the order summon- ing the court, even on his own application, un- less the prosecution can show that, by reason of absence or some other manifest impediment, the accused was not amenable to justice \vithin the time limited by the Articles of War. The limitation was not intended solely for the benefit of persons accused, but its policy had a wider scope, viz, the prompt prosecution of offenses. (1 Op. Attv. Gen., 383; affirmed, 14 Op. Atty. Gen., 265'.) This limitation can not be waived by the ac- cused, nor can he, even with his consent, be tried by a general court-martial after the time prescribed by the Articles of War. (6 Op. Atty. Gen., 239.) The statute of limitations contained in the Articles of War is a limitation upon the juris- diction of courts-martial, and presents an abso- lute bar to the trial (under certain exceptions therein stated), which can not be waived even by the accused. (13 Op. Atty. Gen., 462, 463; citing 1 Op. Atty. Gen., 383 and 6 Op. Atty. Gen., 240.) When it appears by the record that the order for trial was issued more than two years before the commission of the offense, a plea of guilty is not to be taken as an admission by the ac- cused of the existence of an exception withdraw- ing his case from the limitation. It is for the prosecution to show, as a matter of fact, in some way other than by the form of the plead- ings, that by reason of having absented him- self, or of some other manifest impediment, the accused was not amenable to justice within the two years. (16 Op. Atty. Gen., 170.) As a matter of pleading, the plea of guilty admits the existence of the exceptions which take the case out of the general statute of lim- itations. However, it having been held in previous opinions of the Attorneys General that the limitation can not be waived by the ac- cused, and no opinion being found which con- tradicts these, the rule thus established should be followed. (16 Op. Atty. Gen., 170.) View that statute of limitations is mat- ter of defense. — The limitation prescribed for the trial and punishment of the offense of desertion, by the Articles of War, is matter of defense, and the tribunal having jurisdiction to try the charge of desertion is the tribunal hav- ing jurisdiction to determine whether the bar of the statute has attached or not. (In re White, 17 Fed. Rep., 723.) A desertion having taken place, whether the statute of limitations has run against it and barred punishment is matter of defense, and must be determined by the same tribunal which tries the charge. Should the case be tried before a court-martial duly organized, and the question whether the offense was barred by the statute of limitations decided against the ac- cused, the civil courts would have no jurisdic- tion by habeas corpus or otherwise over such decision of the court-martial. (In re White, 17 Fed. Rep., 723.) The article of war does not Limit or qualify the jurisdiction of a military tribunal, but pre- scribes a rule of procedure for the benefit of the accused, to be considered and enforced upon the trial in the exercise of a jurisdiction already conferred. The limitation is a matter of de- fense, which is to be entertained and de- termined like any other question invohdng an adjudication upon the merits of the case. (In re Da\ison, 21 Fed. Rep. ,618.) It is for the court-martial and not for a civil court of the United States to decide whether the statutory limitation can be invoked by a party accused of desertion to protect him from punishment. (In re Davison, 21 Fed. Rep., 618.) The bar of the statute of limitations provided for in the Articles of War in the case of a party charged with desertion is a defense to be set up in the case, which the military court trying the charge has jurisdiction to determine for itself, without interference from the ci\il courts. It is the duty of courts-martial, in all cases with- in its terms, to give effect to the statute of limi- tations. (In re Zimmerman, 30 Fed. Rep., 176, 179.) In the case presented it appears to the coiort that the prosecution is barred by the statute of limitations. An erroneous ruling by the military authorities upon this point would in- flict a great wrong upon the citizen so tried and punished. However, if such wrong be in- flicted, deliberately or otherwise, there is still no reviewing, controlling, or correcting power in the civil courts. Congress in such case must afford a remedy or the wrong must be endured. Had we the jurisdiction to do so, we should not hesitate to give full effect to the bar of the statute by discharging the prisoner on this ground. (In re Zimmerman, 30 Fed. Rep., 176, 179.) A former conviction and the statute of lim- itations are matters of defense on the merits, which must be investigated in the exercise of jurisdiction, and not facts upon which the jurisdiction to hear and determine the charge depends. These matters can not be inquired into on a petition for discharge on habeas corpus. (In re Bogart, 3 Fed. Gas., No. 1, 596.) See note to article 53, A. G. N., as to juris- diction of civil coiirts; and see note to article 62, A.G.N. Effect of pleading statute of Umitations; admits jurisdiction. — The plea of the statute of limitations is not a plea to the jurisdiction of the court, but a plea in bar addressed to a court of competent jurisdiction. It confesses the jurisdiction of the court, and refers the mat- ter to trial in that court to ascertain the truth of the facts and the law arising out of the facts. The plea of the statute of limitations admits the cognizance of the court to hear and determine the matters of offense. (6 Op. Atty. Gen., 506, 512.) Absence; not amenable to justice. — ^The words, "by reason of having absented himself," certainly do not mean absence from the State or beyond seas as those terms are ordinarily used in statutes of limitation. Nor do they mean merely absence from the company in which or locality where the offender enlisted. The absence contemplated by the article is an absence from the reach of the jurisdiction of the military authorities. To avoid the limitation of the article, it would seem to be necessary that the accused should not only be absent but that he 1058 The Navy. Ft. 2. REVISED STATUTES. Sec. 1624, Art. 61. should be where the militarj^ authorities by reasonable diligence could not make him amen- able to justice. (14 Op. Atty. Gen., 265.) Absence, in order to bring the accused -vvith- in the exception, must be such as to render him "not amenable to justice." (15 Op. Atty. Gen., 152, 16.3.) The general significance of the word "amen- able" in its modern sense as a law term is "responsible, subject to answer in a court of justice, liable to punishment." As used in the above proAdsion it would seem to mean, within the reach and power of the military authorities to bring to trial before a court-martial ; that is, in a situation where the responsibility or lia- bility to answer for the absence can be made effectiA-e, or within the jurisdiction of a court- martial. (15 Op. Atty. Gen., 152, 163.) Unquestionably, absence in a foreign land would place the accused beyond the jurisdic- tion of a court-martial, and thus make him not amenable; so, it has been thought, would absence within the limits of this countn.', if he were where the militaiy authorities by reasonable diligence could not discover him. (15 Op. Attv. Gen., 152, 163; see also C. M. 0. 27, 1913, pp. '13-18; Naval Dig., 1916, pp. 589-592.) It would be difficult, perhaps impossible, to lay down any general rule whereby to determine in all cases under what facts and circumstances the accused may be deemed to be beyond the reach and power of the military authorities to bring him to trial, or beyond the jurisdiction of a court-martial. This is a matter which must be left in each case to the judgment of the court itself, upon the particular facts and cir- cumstances appearing therein, subject to re- Aision bv the proper authorities. (15 Op. Atty. Gen., 152, 163.) The word "absence " in the article means ab- sence from the jurisdiction of the military courts; that is, from the United States. (In re DaAison, 4 Fed. Rep., 507; reversed on other grounds, 21 Fed. Rep., 618.) For other cases, see note to article 62, A. G. N. "Manifest impediment." — Causes of delay in bringing an officer to trial can be arranged in three classes: First, those that are created or interposed by the act of the party; second, cir- cumstances arising independently either of his action or that of the Government; and third, such as are controlled by the Government itself. The first class constitute manifest impediments within the meaning of the statute of limitations. It is a broad principle of law and of natural justice that no man can take adA-antage of his own wrong. Examples are, preventing wit- nesses appearing against him, or the like. (9 Op. Atty. Gen., 181: compare 14 Op. Atty. Gen. 265.) Delay occasioned by the Government itself is not a manifest impediment. The accused has a right to a trial Avitliin two years. He can not be deprived of that right at the option of those who have power to try him. The dis- missal of an officer under charges, if an impedi- ment, is created by the Government itself. It was a voluntan,', indefinite suspension, if not an abandonment, on the part of the Govern- ment of the charges then pending and is clearly no manifest impediment within the meaning of the Articles of War. (9 Op. Atty. Gen., 181.) The concealment of an offense by the accused is not a "manifest impediment" to his prose- cution within the meaning of the Articles of War and does not prevent the limitation from running in his favor. (14 Op. Atty. Gen., 52.) The words, "other manifest impediment," must be construed in connection A^dth the words immediately preceding, A-iz, "by reason of haA'- ing absented himself, ' ' and , taken together, it is apparent that the impediment intended by the article is an impediment similar in kind to absence, and that it is one which renders it impossible for a prosecution to take place. It could not be extended so far as to include concealment of the offense. (14 Op. Atty. Gen., 52.). Persons prosecuted for crime are not allowed to claim that the statute of limitations runs in their faA'or for and during the time they are absent from the State or beyond seas, or, in other words, beyond the jurisdiction of the court. But any concealment of the CA-idence of their guilt, or other like fraud on their part, while they remain in that jurisdiction, by which the prosecution is delayed until the time of the bar has run, does not deprive them of the bene- fit of the statute. (14 Op. Attv. Gen., 265, modifjdng 9 Op. Atty. Gen., 181, "183.) "Manifest impediment," as used in thje Articles of War, does not mean merely want of eAddence or ignorance as to the offender or of- fense by the militarv' authorities, but it means something akin to absence — want of power, or a phvsical inabilitv to bring the partv charged to trial. (14 Op. Atty. Gen., 265.) "Other manifest impediment" means only such impediments as operate to prevent the military court from exercising its jurisdiction, as, forinstance,hisbeing continuously a prisoner in the hands of the enemy, or being imprisoned under the sentence of a ciAil court for a time, or the like. (In re DaA-ison, 4 Fed. Rep., 507; reversed on other grounds, 21 Fed. Rep., 618.) For other cases, see note to article 62, A. G. N. In custody of cIatQ authorities. — Where an officer charged Avith the commission of an of- fense in A-iolation of both the State law and the Articles of War is deliA-ered to the ciA-il author- ities for trial, the military authorities should take heed that the charges for Aiolation of the Articles of War be put in due fonn and so re- main suspended or adjourned merely, in order that the limitation of time proA-ided by the Articles of War do not begin to run; and that, howeA^er much time be consumed in the ciAil proceedings, still, at the expiration of them, he may be duly tried by a court of his military peers. (6 Op. Atty. Gen., 413, 428.) A prosecution of an officer before a court- martial haA'ing been instituted and the party arraigned, Avithin the tAvo years required by law, and the accused pleading the pendency of civil proceedings arising in the matter, AA'here- upon the proceedings of the court-martial were suspended until reassembled by an order issued after the lapse of two years, held that the statute of limita,tions could not then be pleaded in the case. (6 Op. Atty. Gen., 506.) Officer dismissed and subsequently re- stored to the Army. — ^^^lere charges Avere pre- ferred against an officer in the Army for disobe- dience of orders in June, 1856, and in Septem- 1059 Sec. 1624, Art. 62. PL 2. REVISED STATUTES. The Navy. ber following, for other reasons, he was dismissed the service by the President, no court-martial having been ordered to investigate the charges against him, held that on his being restored to the Army he could not be tried on the charges pending against him at the time of his dis- missal, after the lapse of two years since the conmiission of the alleged onense. (9 Op. Atty. Gen., 181.) The question whether an officer who has been dismissed from the ser\dce is lial)le to be tried by court-martial for offenses previously com- mitted, examined; but no opinion given thereon. (9 Op. Atty. Gen., 181. See note above, under preamble to sec. 1624, R. S., as to jurisdiction of persons after discharge from the Navy, or after release from active duty in the Naval Reserve Force.) Jurisdiction after discharge. — Under the article of war (corresponding to this article) it appears that a soldier may be arrested and tried after the expiration of his tenn of service for a military offense committed during such term of ser\dce, so that the order for the court-martial is issued within two years from the commission of the offense. In any view of the matter, a soldier may be held for trial after the term of his enlistment, if arrested for the offense be- fore the expiration of the term. (In re Bird, 3 Fed. Cas. No. 1,428.) The two years' limitation presaibed by the 88th article of war (similar te art. 61, A. G. N.) applies to all offenses triable and punishable by court-martial, including those which may be thus tried and punished under the act of March 2. 1863 (12 Stat., 696; see art. 14, A. G. N.), punishing frauds upon the United States by persons in the land and naval forces; and providing that any person committing such offense who shall afterwards be discharged or dismissed shall, notwithstanding such dis- charge or disnussal, continue to be liable to be arrested and held for trial and sentence by a court-martial in the same manner and to the same extent as if he had not received such dis- charge or been dismissed. (14 Op. Atty. Gen., 52.) Article 61, A. G. N., may, with some force, be said to provide by implication, affirmatively, viz, that any person committing an offense within two years before the issuing of the order for trial may be tried therefor, whether he has left the service or not. However, it is doubtful whether the mere fixing by Congress of a general period of limitation should be be taken to indicate an intention to extend the basic jurisdiction over a class not subject to it theretofore. It is possible that the attention of Congress was not at all engaged with the sub- ject of such basic jurisdiction. (31 Op. Atty. Gen., 521, 528.) See note under preamble to section 1624, Revised Statutes, as to jurisdiction of pereona discharged fi'om the Navy, whose enlistment has expired, or who have been relieved fiom duty in the Naval Reserve Force; and see notes above, under "Manifest impediment," and " Desertion in time of war." No limitation in proceedings before courts of inquiry. — See note to article 57, A. G. N. Art. 62. [Limitation of trials ; desertion in time of peace.] No person shall be tried by court-martial or otherwise punished for desertion in time of peace committed more than two years before the issuing of the order for such trial or punishment, unless he shall meanwhile have absented himself from the United States, or by reason of some other manifest impediment shall not have been amenable to justice within that period, in which case the time of his absence shall be excluded in computing the period of the limitation: Provided, That said limitation shall not begin until the end of the term for which said person was enlisted in the service. This article was added to the Articles for the Government of the Navy, as article 62 thereof, by act of February 25, 1895 (28 Stat., 680). See historical note under article 61, A. G. N. Whether desertion is continuing offense; when statute begins to run. — The general limitation proA'ided by the Articles of War held applicable to the offense of desertion, no special provision being made for that offense. The limitation begins to run from the commission of the offense, except in a case where, by reason of "manifest impediment," the accused is not amenable to justice within two years from that time. In such case it begins to run from the removal of the impediment. (15 Op. Atty. Gen., 152.) Desertion is a continuing offense; an offense which may endure (that is, be continually committed) from day to day after the period of its completion. But the continuing commis- sion thereof is limited by the obligation to serve imposed upon the deserter by his engagement. When that obligation ceases to exist, the com- mission of the offense necessarily terminates, and the limitation then begins to run in cases notexcepted. (15 Op. Atty. Gen., 152; affirmed, 16 Op. Atty. Gen., 170, 396.) Enlistments are required to be for a specified time. By his engagement the soldier is bound for a specific term of ser\ice, the last day of which is as much fixed by the contract as the first. With the last day of the term his engage- ment expires, and with the expiration of his en- gagement the obligation to serve, thereby im- posed, is at an end. This results notwithstand- ing that there has been an infraction of the con- tract by desertion or otherwise, unless the soldier, before the term is up, consents to an extension. (15 Op. Atty. Gen., 152; affirmed, 16 Op. Atty. Gen., 170, 396.) 1060 The Navy. PL 2. REVISED STATUTES. Sec. 1624, Art. 62. The provision in the Articles of War that a deserter shall be liable to serve for such period as necessary to make good time lost by his un- authorized absence is a penal pro\ision, and operates only after con\'iction. (15 Op. Atty. Gen., 152; affirmed, 16 Op. Atty. Gen., 170, 396.) For reasons above stated, held, in the case of an enlisted soldier, that (excepting where the offender has previously surrendered himself or been apprehended, or whereby reason of mani- fest impediment he is not amenable to justice) the limitation begins to run from the last day of the term for which he enlisted, under the general article applicable to all offenses, and in the absence of any specific enactment applica- ble to desertion. (15 Op. Atty. Gen., 152; affirmed, 16 Op. Atty. Gen., 170, 396.) In the case of desertion by a commissioned officer, whose engagement is an unlimited one, the limitation begins to run only from the date of apprehension or surrender. (15 Op. Atty. Gen., 152, 163; affirmed, 16 Op. Atty. Gen., 170, 396.) It would_ certainly be a startling proposition that there is no limitation at all upon prosecu- tions for the offense of desertion ; that one who has once been a deserter is subject during the whole of his natural life to be brought to trial before a military court and punished for this offense, even in extreme old age. With the single exception of the crime of murder, the almost utdversal poUcy of the criminal law is to prescribe a term within which the offender shall be brought to trial. (In re DaAison, 4 Fed. Rep., 507; reversed on other grounds, 21 Fed. Rep., 618.) The whole effect of the limitation can not be taken away on the theory that the desertion may be considered for some purposes to be a continuing offense. The offense was complete for the purpose of the limitation on the day that the accused deserted and which was charged against him as the date the offense was committed. (In re Da\ison, 4 Fed. Rep., 507; reversed on other grounds, 21 Fed. Rep., 618.) Were the question properly before us, we should have no difficulty in reaching the same conclusion as to the effect of the statute of limitations as that attained in the Davison case (4 Fed. Rep., 507); but that question is not properly before us; as it is exclusively a ques- tion for the tribunal ha\T.ng jurisdiction to try a party charged with the oflense of desertion, we are nqt authorized to consider the question at all. (In re White, 17 Fed. Rep., 723.) A question has arisen whether desertion is a continuing offense in such sense that the statute does not begin to run until the expira- tion of the term of enlistment. A continuing civil or military obligation to serve until the expiration of the term of enlistment is one thing, and a continuing criminal offense, if such there can be, which is perfected and ripe for charges and trial at the moment it is "com- mitted" for the purpose of barring a trial and punishment under the statute of limitations, is quite another. Some, however, maintain the affirmative of the proposition, notwithstanding the language of the statute is, after the offense "appears to have been committed." Although by no means satisfied with such \dew, held that the question whether the trial is barred by the statute of limitations is one for determination bv the court-martial. (In re Zimmerman, 30 Fed. Rep., 176,179.) The_ above cases reviewed, and held that desertion from the Navy is not a continuing offense; that it is committed and is complete at the moment the person absents himself with Uie requisite intent. (Op. Atty. Gen., Feb. 27, 1922, file 26251-26615:8.) See note above, under article 61, A. G. N., as to desertion in time of war. Trial after expiration of enlistment. — The jurisdiction of a naval court-martial is, by the Articles for the Government of the Navy, confined to persons in the naval service, except for offenses set forth in article 14, A. G. N., and for the offense of desertion in time of peace as set forth in article 62, A. G. N. Hence, in the case of one who deserted from the Marine Corps in time of war, and whose enUstment expired while he was in desertion, held that a naval court-martial did not have jiu-isdiction to try him for such desertion after the date his enlist- ment expired; and the proceedings, findings, and sentence were accordingly disapproved. (C. M. O. 151, 1920, pp. 11, 12, case of George M. Runyan, citing 15 Op. Atty. Gen., 152, and 31 Op. Atty. Gen., 521. But see ex parte Clark, noted below.) Opinion in case of George M. Runyan (CM. O. 151, 1920, above noted), cited, and re- marked with respect thereto: "If the effect thereof is that a man may desert, remain in hiding until the time of his enlistment expires, and then escape all responsibility, I can not agree with such a conclusion. The effect thereof upon the morale of the Army and Navy alike would be disastrous. While there is no obligation to serve after the period of enlistment it does not follow that conduct during that period may go unpunished for the reason as- signed. If that were the law, it might be well urged that a com't-martial has no power to imprison after the expiration of the enlistment. ' ' (Ex parte Clark, 271 Fed. Rep., 533.) A marine deserted in Germany while de- tached for service with the Army; subse- quently, and shortly after his term of enlistment would have expired, the French authorities surrendered him to the American Army at Paris; he was then delivered by the military authorities to the custody of the commandant of the navy yard at New York, and a naval court-martial was convened to try him for de- sertion. Held, first, that the naval comt- martial had jurisdiction of the desertion com- mitted by said marine in violation of the Articles of War [see sec. 1621, R. S., and note thereto]; second, that there is no merit in the contention that the naval authorities are without jurisdic- tion because his term of enlistment had ex- pired. (Ex parte Clark, 271 Fed. Rep., 533.) A deserter from the Army who has never been discharged from the service is still subject to the jurisdiction of a military tribunal, not- withstanding that his period of enlistment has expired; and while he may plead the statute of limitations as a defense to a prosecution for desertion, a civil court will not interfere with such a prosecution by a military tribunal be- fore that court has acted on and decided the case. As he has not been discharged from the Army, he is subject to the jurisdiction of a mili- 1061 Sec. 1624, Art. 63. rt. 2. REVISED STATUTES. The Navy. tary tribunal. (In re Cadwallader, 127 Fed. Rep., 881.) An enlisted man eontinues in the naval serv- iee after the expiration of his enlistment until there has been some act, such as a discharge, to terminate the status created by his contract of enlistment; and while so in the service he may be tried by court-martial for offenses com» mitted during his period of enlistment, whether or not he has in the meantime been arrested or other steps taken to enforce the jurisdiction. (Op. Atty. Gen., Feb. 27, 1922, file 26251- 26615:8; see note to art. 61, A. G. N., under ■'Desertion in time of war.'") A man enlisted in the Navy January 4, 1908, for a term of four years; his enlistment expired on January 3, 1912; in the meantime, he was declared a deserter on March 7, 1908; he sur- rendered to the naval authorities on September 20, 1913; the Bureau of Navigation directed removal of the mark of desertion from his rec- ord, October 8, 1913; he was tried by summary court-martial for absence \\'ithout leave on October 20, 1913; was sentenced to solitary confinement for 30 days and extra police duties for 60 days; which said sentence was duly ap- proved and executed. (20 Comp. Dec, 751.) By an act approved January 29, 1813 (2 Stat., 796), it was provided that deserters from the Army should be liable to make good time lost by absence in desertion, ''and that such soldier shall and may be tried by a court-martial and punished although the term of his enlistment may have elapsed previous to his being appre- hended or tried." It may well be doubted whether, in the absence of this enactment, a soldier was triable by a court-martial organized after the expiration of his term of enlistment, for any offense committed during his term; but that act was designed for the punishment of the offense of desertion, although the term of enlistment may have elapsed previous to the apprehension and trial of the offender. But said act of 1813 was not intended to repeal the article of war limiting the time for trial of offenses, and to make a deserter liable to betried at any time after the expiration of his enlist- ment; the limitation imposed by that article still remained. (13 Op. Atty. Gen., 462.) Trial void if in violation of statute of limitation. — A man deserted from the Army on October 2, 1865; his enlistment would have expired on August 21, 1868; he was appre- hended April 13, 1871. By act of April 10, 1806, article 88 (2 Stat., 369), it was declared that "no person shall be liable to be tried and punished by a general court-martial for any offense which shall appear to have been com- mitted within two years before the issuing of the order for such trial, unless," etc. Said article of war applied to desertion as well as to other offenses. The accused in this case did not come within the exceptions contained in said article. Held, that the court-martial was without jurisdiction. (13 Op. Atty. Gen., 462.) Where a soldier enlisted on August 16, 1870, deserted from the Army on September 19, 1870, but in about one year afterwards reenlisted un- der an alias in another regiment and an order was issued on !March 11, 1873, for his trial by court-martial for desertion, for which offense he was thereupon tried by the court, con\dcted, and sentenced to punishment, held that the prosecution was barred by the two years' lim- itation prescribed by the Articles of War, and that consequently the conviction and sentence are void. (14 Op. Atty. Gen., 265.) See note to article 61, A. G. N., under "View that statute of limitations is matter of defense." Statute of limitations matter of de- fense. — The judgment of a court-martial, reg- ularly organized, convicting and sentencing a soldier for desertion, which judgment has been confirmed as pro\'ided in the Articles of War, is not subject to re"view by a cixdl court in ha- beas corpus proceedings on the ground that the prosecution was barred by limitation under the I03d article of war, such defense being one to the merits, to be determined by the court- martial, and not affecting its jurisdiction. (Ex parte To wnsend, 133 Fed. Rep., 74; see note to art. 61, A. G. N.) Absence. — See note to article 61, A. G. N. Absence without leave is not per se sufficient to prevent the limitation from running. (15 Op. Atty. Gen., 152.) The exception from the limitation contained in the 103d article of war does not produce any effect where the limitation itself would not otherwise run. Hence, absence without leave during the term of enlistment, in the case of a deserter, is unimportant, inasmuch as the of- fense of desertion, being a continuing one dur- ing such term, the limitation would not other- wise begin to run until the expiration thereof. (16 0p.^Atty. Gen., 170.) Where the absence of the deserter continues after his term of serxdce has expired, no pre- sumption of law arises that he was not amenable to justice during such absence, and that liis case is accordingly within the exception. The facts must be shown by evidence submitted at the trial. (16 Op. Atty. Gen., 170. Compare cases noted under art. 61, A. G. N., and under this article, as to statute of limitations being matter of defense.) Manifest impediment.— See note to article 61, A. G. N. It is apparent that, as relator had deserted and could not be found during the period of his desertion, there was such a "manifest impedi- ment" in the way of bringing him to justice as would justify excluding the period of his deser- tion from any computation of time within which a prosecution must be begun. (Ex garte Clark, 271 Fed. Rep., 533; see also . M. O. 27, 1913, pp. 13-18; Naval Dig., 1916, pp. 589-592.) Art. 63. [Limitation of punishments ; time of peace.] Whenever, by any of the Articles for the Government of the Navy of the United States, the punish- ment on conviction of an offense is left to the discretion of the court-martial, the punishment therefor shall not, in time of peace, be in excess of a limit which the President may prescribe. 1062 The Navy. Pt. 2. REVISED STATUTES. Sec. 1624, Art. 63- This article was added to the Articles for the Government of the Navy, as article 63 thereof, by act of February 27, 1895 (28 Stat., 689). Where no limitation prescribed by the President. — Where the Articles of War pro- \ided that the punishment shall not, in time of peace, be in excess of a limit which the Presi- dent may prescribe, and the Pi'esident, in pre- scribing limitations of punishment, made same applicable in terms to enUsted men only, held that the sentence of a court-martial in the case of a commissioned officer, which was approved by the President, was valid, notwithstanding objection that such sentence was in excess of the limit which had been prescribed by the President; that the limitations so prescribed were applicable to enlisted men only ; and that it is e\ident that a limit on discretion in pun- ishment, to be imposed by the President, can have only such operation as he may affirma- tively prescribe. (Carter v. McClaughry, 183 U. S., 365, 382.) Punishment for repeated oflfense. — Ev- ery successive disobedience of orders is a fresh offense and subjects the offender to additional punishment. It has been settled in a penal prosecution that a like act when prohibited, if distinctly repeated even on the same day, constitutes a second offense and incurs an additional penalty. (Wilkes v. Dinsman, 7 How., 89, 128.) Single sentence for all offenses. — The rule is established by military usage that the sentence of a court-martial shall be in every case an entirety; that is, that there shall be but a single sentence covering all the convictions and all the charges and specifications upon which the accused is found guilty, however separate and distinct may be the different offenses found, and however different may be the punishments called for by the offenses. Where, then, there is a con\'iction of several offenses, the sentence is warranted to the ex- tent that such offenses are punishable, even where the offenses are in \'iolation of the same article. Cumulative sentences are not cumu- lative punishments, and a single sentence for several offenses in excess of that prescribed for one offense mav be authorized by statute; (Carter v. McClaughiy, 183 U. S., 365, 393, 394; see also notes to arts. 14, 22, and 53, A. G. N.) Sentences cumulative. — The customary military law and the Army Regulations unite in requiring that different sentences to im- prisonment, imposed by separate courts-martial upon the same offender for distinct offenses, be regarded as cumulative and be executed con- secutively, one upon the expiration of another, in the order of their imposition. (Kirkman v. McClaughry, 160 Fed. Rep., 436.) Cruel and unusual punishments. — See article 49, A. G. N., as to prohibited punish- ments; and see note to Constitution, eighth amendment. A sentence of dismissal in the case of an offi- cer of the Marine Corps is not illegal, nor in conflict with the provision of the Constitution which declares that cruel and unusual pun- ishments shall not be inflicted, although under the circumstances severe and harsh, it appear- ing that the milder punishment of reprimand or suspension would have fully satisfied the most rigorous demands of justice. (3 Op. Atty. Gen., 631.) The words, "such other punishment as a court-martial shall adjudge," are to be limited by the custom of the service, and authorize only such punishments as are usual. (10 Op. Atty .Gen., 158.) It is certainly hard to mark the line where usual and proper punishments end and unusual and cruel ones begin; and the sentence pro- nounced under an authority so broad and gen- eral ought to be so far out of proportion to the offense committed as to shock the sense of jus- tice before it is arrested as contrary to usage. If it bear a general relation to the crime, and be not entirely outside the circle of naval pun- ishments, any interference with it on that ground could hardly be justified. (10 Op. Atty. Gen., 158.) Section 16 of an act approved July 17, 1862 (12 Stat., 596), provided that any contractor for supplies for the Army or Navy found guilty by com-t-martial of fraud or willful neglect of duty "shall be punished by fine and imprisonment, or such other punishment as the court-martial shall adjudge"; and that any person contract- ing to furnish such supplies "shall be deemed and taken as a part of the land or naval forces of the United States, for which he shall contract to furnish said supplies, and be subject to the rules and regulations for the government of the land and naval forces of the United States. " A contractor was sentenced by a naval general court-martial under this section to "be here- after excluded from any further deliveries, either on contract or open purchase, for naval supplies. " Held, that such sentence was un- warranted bv the usage of the service, and was therefore illegal. (12 Op. Atty. Gen., 528. See note under preamble to section 1624, R. S., as to contractors not being amenable to court- martial.) The discretion given the court-martial in the matter of iniUcting punishment upon convic- tion is to be imderstood as controlled by the custom of the ser\T.ce and limited to the im- position of that kind of punishment only which has become usual. A sentence of incapacity or disability does not fall within the range of discretionary punishments allowable by the usage of the ser\dce, and is not within the power of a court-martial except where expressly authorized by law. (12 Op. Atty. Gen., 528.) Not decided whether the confinement of the accused for a long term in a prison of narrow cells and limited appliances for comfort would be a punishment which the law regards as cruel and unusual, and forbidden by the Constitu- tion, because the suggestion as to the character of the prison is unsupported by anything in the record, and no point of the kind was made at the argument in this court. (Johnson v. Sayre, 158 U. S., 109, 116.) Imprisonment until pajmaent of fine. — The sentence of a court-martial that the accused "be imprisoned in such place as the honorable Secretary of the Navy may designate for the term of two years; to lose all pay which may become due him during such confinement, except the sum of ten dollars per month, this loss amounting to one thousand nine hundred 1063 Sec. 1624, Art. 63. Pt. 2. REVISED STATUTES. The Navy. and sixty-six dollars; to be fined in the sum of five hundred dollars, which fine must be paid before or at the end of the term of confinement; to be detained iu coiilinenicnt without pay until such fine be paid, and at the expiration of term of confinement to be dishonorably dis- charged from the naval service of the United States," which sentence was adjudged by the court on revision of its original sentence in the case, held not illegal. (In re Reed, 20 Fed. Cas. No. 11636; affirmed, ex parte Reed, 100 U. S., 13.) Imprisonment beyond term of enlist- ment. — The President having fixed a term of 10 years as the maximum of imprisonment in cases prosecuted under the 62d article of war (corresponding to art. 22, A. G. N.), as author- ized by Congress, a court-martial on convicting a soldier of conduct prejudicial to good order and military discipline in violation of such article had j urisdictioti to sentence accused to a term of five years' imprisonment, though such term extended beyond the term of military serWce for which he had enlisted. (In re Stubbs, 133 Fed. Rep., 1012; see note to pre- amble of sec. 1624, R. S., under "Where juris- diction attached prior to discharge.") Place of imprisonment designated by reviewing authority. — There is nothing in the character of a court-martial which inher- ently precludes committing to the reviewing authority the determination of the character of imprisonment to be imposed within the pre- scribed limits. There is no statute which pre- vents the adoption of a rule or regulation com- mitting the matter to the reviewing authority for determination of the place of imprisonment. (In re Brodie, 128 Fed. Rep., 665, 668.) Where the judgment of a court-martial di- rected the kind and duration of his imprison- ment, the place of his confinement may be later designated by the War Department and such designation on the commitment papers will be presumed to have been lawfully made. (Ex parte Givins, 262 Fed Rep., 702; affirmed, Givens v. Zerbst, 255 U. S., 11.) Regulations as to imprisonment; effect of footnote. — A manual issued by the Secre- tary of War providing in a footnote that in cer- tain cases the words "in such place as the re- viewing authority may direct, " were to be used in the sentence of a court-martial with reference to the place of confinement, operated to qualify Army Regulations issued by the Secretary of War with the approval of the President. A footnote to a rule or regulation is not less author- itative than the principal text, where there is a single authorship. Accordingly, where the sentence in a proper case is in the form above quoted, such sentence is conclusive and not open to collateral attack. (In re Brodie, 128 Fed. Rep., 665.) Stoppage of pay. — The amount of the re- ward paid for the apprehension of a deserter who, upon trial by a court-martial for deser- tion, has been convicted only of the offense of absence without leave, can not lawfully be stopped against his pay in a case where the sen- tence of the court does not impose such stoppage. Stoppage of pay against a soldier is unauthor- ized unless made in execution of the sentence of a court-martial or in pursuance of a statute or in conformity to a regulation having the force of law. (16 Op. Atty. Gen., 474; see notes to sees. 1556 and 1569, R. S.) Certainty required.^ — A sentence which declares "all pay and allowances now due or that may hereafter become due," to be for- feited, except certain amounts specially named fixes the amount of pay forfeited sufficiently within the intent of the Navy Regulations of 1870 (sec. 248), requiring that sentences in- cluding forfeiture of pay "fix the amount of the pay so forfeited, stating it in dollars and cents." (WilUamsi). U. S.,_24 Ct. Cls., 306.) Judgments, whether of civil or military tri- bunals, should embrace the highest degree of certainty, ' ' certainty to a certain intent in every particular. " It is a sound maxim of the law that "that is sufficiently certain which can be made certain." The sum to be forfeited, al- though not fixed by the sentence, could be de- termined with accuracy by reference to other reliable data. To hold that the sentence was void for uncertainty, because the amount is not stated on the face of the sentence, would be a technical requirement not warranted. The objection being matter of form only, it does not vitiate the sentence as a judicial finding. (Williams v. U.S., 24 Ct. Cls., 306.) "Cashiered" and "dismissed" con- strued. — See note to article 46, A. G. N. Dismissal mandatory. — See act of April 9, 1906, section 5 (34 Stat., 105), as to certain offenses of neglect of duty by officers of the Naval Academy. Coast Guard; limitation of punish- ments. — "Whenever, in time of war, the Coast Guard operates as a part of the Navy in accordance with law, the personnel of that service shall be subject to the laws prescribed for the government of the Navy: Provided, That in the initiation, prosecution, and comple- tion of disciplinary action, including remis- sion and mitigation of punishments for any offense committed by any officer or enlisted man of the Coast Guard, the jurisdiction shall hereafter depend upon and be in accordance with the laws and regulations of the depart- ment having jurisdiction of the person of such offender at the various stages of such action: Provided further, That any punishment im- posed and executed in accordance with the provisions of this section shall not exceed that to which the offender was liable at the time of the commission of his offense." (Act Aug. 29, 1916, 39 Stat., 600.) For other cases see notes to articles 7, 8, 14, and 48, A. G. N. Perjury. — As to punishment for, see article 42, A. G. N. Limitations of punishment prescribed by the President, as modified from time to time, are published in "Naval Courts and Boards," issued by the Navy Department, office of the Judge Advocate General of the Navy. 1064 TITLE XIX. PEOVISIONS APPLICABLE TO SEVERAL CLASSES OF OFFICERS. Sec. 1754. Preference of persons disabled in mili- tary or naval service. 1755. Recommendation for employment in private industries. 1757. Oath of office. 1758. "t^Tio may administer oath. 1759. Custody of oath. 1760. Unauthorized office; no salan^' for. 1761. Salaries; recess appointments. 1763. Double salaries. 1764. Extra ser^•ices. Sec. 1765. Extra allowances. 1766. Ofiicer in arrears; withholding pay. 1773. Commissions. 1774. Recess appointments; accounting officers notified. 1778. Oaths or acknowledgments; before whom taken. 1779. Newspapers, books, etc.; restriction upon purchase. 1784. Contributions, presents, etc., to supe- riors. Sec. 1754. [Preference of persons disabled in military or naval service.] Persons honorably discharged from the military or naval service by reason of disability resulting from wounds or sickness incurred in the line of duty, shall be preferred for appointments to civil offices, provided they are found to possess the business capacity necessary for the proper discharge of the duties of such offices.— (3 Mar., 1865, Res. No. 27, s. 1, v. 13, p. 571.) See laws and decisions noted under section 416, Revised Statutes, subheading, "Honorably discharged soldiers or sailors. " Sec. 1755. [Recommendation for employment in private industries.] In grateful recognition of the services, sacrifices, and sufferings of persons honor- ably discharged from the militar}^ and naval service of the country, by reason of wounds, disease, or the expiration of terms of enlistment, it is respectfully recommended to bankers, merchants, manufacturers, mechanics, farmers, and persons engaged in industrial pursuits, to give them the preference for appoint- ments to remunerative situations and employments. — (3 Mar., 1865, Res. No. 27, s. 2, V. 13, p. 571.) Sec. 1757. [Oath of office.] Whenever any person who is not rendered ineli- gible to office by the provisions of the fourteenth amendment to the Consti- tution is elected or appointed to any office of honor or trust under the Govern- ment of the United States, and is not able, on account of his participation in the late rebellion, to take the oath prescribed in the preceding section, he shall, before entering upon the duties of his office, take and subscribe in lieu of that oath the following oath: "I, A B, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same, that I take this obligation freely, without any mental reservation or purpose of evasion ; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." — (11 July, 1868, c. 139, v. 15, p. 85. 15 Feb., 1871, c. 53, v. 16, p. 412.) 1065 Sec. 1763. Pt.2. REVISED STATUTES. PubUc Officers. Amendment to this section was made by act of May 13, 1884, section 2 (23 Stat., 22), as follows: "Section seventeen hundred and fifty -six of the RcA^sod Statutes be, and the same is hereby, repealed; and hereafter the oath to be taken by any person elected or appointed to any office of honor or profit either in the civil, military, or naval serv- ice, except the President of the United States, shall be as prescribed in section seventeen hundred and fifty-seven of the Ile\"ised Statutes. But this repeal shall not affect the oaths prescribed by existing statutes in relation to the performance of duties in special or particular subordinate offices and employments. " As to special oath prescribed for employees in the postal service, and which is also re- required by law to bo taken by Navy mail clerks and assistant Navy mail clerks, see sections 391 and 392, Revised Statutes, and notes thereto. As to oath of allegiance required to be taken by enlisted men of the Navy and Marine Corps, see notes to sections 1418 and 1609, Revised Statutes. As to commencement of pay of officers ap- pointed to the Navy, see section 1560 and note to section 1383, Revised Statutes. As to oath of allegiance required to be taken by persons prosecuting claims, see sections 3478 and 3479, Revised Statutes. Sec. 1758. [Who may administer oath.] The oath of office required by either of the two preceding sections may be taken before any officer who is authorized either by the laws of the United States, or by the local municipal law, to administer oaths, in the State, Territory, or District where such oath may be admmistered.— (6 Aug., 1861, c. 64, s. 2, v. 12, p. 326. 18 April, 1876, c. 66, V. 19, p. 34.) See note to section 416, Revised Statutes, under " Oath of office"; see also sections 183 and 392, Revised Statutes, and note thereto. Sec. 1759. [Custody of oath.] — The oath of office taken by any person pursuant to the requirements of section seventeen hundred and fifty-six, or of section seventeen hundred and fifty-seven, shall be delivered in by him to be preserved among the files of the House of Congress, Department, or court to which the office in respect to which the oath is made may appertain. — (2 July, 1862, c. 128, V. 12, p. 502.) Section 1756, Revised Statutes, referred to in this section, was repealed by act of May 13, 1884; quoted above, under section 1757. Sec. 1760. [Unauthorized office ; no salary for.] No money shall be paid from the Treasury to any person acting or assuming to act as an officer, civil, military, or naval, as salary, in any ofiice when the office is not authorized by some pre- viously existing law, unless such office is subsequently sanctioned by law. — (9 Feb., 1863, c. 25, s. 2, v. 12, p. 646.) Sec. 1761. [Salaries; recess appointments.] No money shall be paid from the Treasury, as salary, to any person appointed during the recess of the Senate, to fill a vacancy in any existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until such appointee has been confirmed by the Senate. (9 Feb., 1863, c. 25, s. 2, v. 12, p. 646.) See note to Constitution, Article II, section 2, clause 3. Sec. 1763. [Double salaries.] No person who holds an office, the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars, shall receive compensation for discharging the duties of any other office, unless expressly authorized by law. — (31 Aug., 1852, c. 108, s. 18, V. 10, p. 100. 20 June, 1874, c. 328, v. 18, p. 109.— Talbot's Case, 10 C. Cls. 426.) Other laws on the same general subject as this section and sections 1764 and 1765, set forth below, are the following: Act June 20, J 874, section 3 (18 Stat., 109): " No civil officer of the Government shall here- after receive any compensation or perquisites, 1066 Public Officers. Pt. 2. REVISED STATUTES. Sec. 1766. directly or indirectly, from the Treasury or property of the United States beyond his salary or compensation allowed by law: Provided, That this shall not be construed to prevent the employment and payment by the Department of Justice of district attorneys as now allowed by law for the performance of ser\dces not cov- ered by their salaries or fees. ' ' Act July 31, 1894, section 2 (28 Stat., 205): "No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hun- dred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate." Act June 3, 1896, section 7 (29 Stat., 235): "That section two of the act making appro- priations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and ninety-five, and for other pur- poses, approved July thirty-first, eighteen hun- dred and ninety-four, shall not be so construed as to prevent the employment of any retired officer of the Army or Navy to do work under the direction of the Chief of Engineers of the United States Army in connection with the improvement of rivers and harbors of the United States, or the payment by the proper officer of the Treasury of any amounts agreed upon as compensation for such employment." Act August 1, 1914, section 12 (38 Stat., 680): " It shall not be lawful to pay to any person, employed in the service of the United States under any general or lump sum appropriation, any sum additional to the regular compensation received for or attached to any employment held prior to an appointment or designation as acting for or instead of an occupant of any other office or employment. This provision shall not be construed as prohibiting regular and permanent appointments by promotion from lower to higher grades of employments. ' ' Act May 10, 1916, section 6 (39 Stat., 120), as reenacted with amendments by act August 29, 1916 (39 Stat., 582): "That unless otherwise specially authorized by law, no money appro- priated by this or any other act shall be avail- able for payment to any person receiving more than one salary when the combined amount of said salaries exceeds the sum of $2,000 per annum, but this shall not apply to retired offi- cers or enlisted men of the Army, Navy, Marine Corps, or Coast Guard, or to officers and enlisted naen of the Organized Militia and Naval Militia in the several States, Territories, and the Dis- trict of Columbia: Provided, That no such retired officer, officer, or enlisted man shall be denied or deprived of any of his pay, salary, or compensation as such, or of aay other salary or compensation for services heretofore rendered, by reason of any decision or construction of said section six." Act March 3, 1917 {39 Stat., 1106): Restricts payments to Government officers by private parties. See section 1440, Revised Statutes, as to ap- pointment of Navy officers in the diplo- matic or consular service; section 1860, Revised Statutes, as to naval personnel holding civil offices in territories; and act June 10, 1896 (29 Stat., 361), as to officers of the Navy or Marine Corps holding em- ployment with contractors furnishing naval supplies or war material to the Govern- ment. See sections 170 and 182, Revised Statutes, and notes thereto, restricting extra compen- sation to clerks and officers in the executive departments. See note to section 1765, Revised Stat- utes, for interpretation of sections 1763-1765, Revised Statutes, and laws above quoted. Sec. 1764 [Extra services.] No allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other Department; and no allow- ance or compensation shall be made for any extra services whatever, which any officer or clerk may be required to perform, unless expressly authorized by law.— (26 Aug., 1842, c. 202, s. 12, v. 5, p. 525.) See later enactments quoted above, under section 1763, Revised Statutes; and see decisions noted below, under section 1765. Sec. 1765. [Extra allowances.] No officer in any branch of the public service or any other person whose salary, pay, or emoluments are fixed by law or regu- lations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service of duty whatever, unless the same is authorized by law, and the appro- priation therefor explicitly states that it is for such additional pay, extra allowance, or compensation. — (3 Mar., 1839, c. 82, s. 3, v. 5, p. 349. 23 Aug., 1842, c. 183, s. 2, v. 5, p. 510. 1 May, 1876, c. 88, v. 19, y. 45.) 54641"— 22- -68 1067 Sec. 1765. PL 2. REVISED STATUTES. Public Officers. See other enactments quoted above, under sec- tion 1763, Revised Statutes. Cash rewards to civil employees of Navy Department are authorized by act of July 1, 1918 (40 Stat., 718.) Legality of officers accepting civil ap- pointments. — The legality of a retired officer of the Navy accepting ci^il office is a question which must be determined by such officer upon has own responsibility; as the Government does not become interested in the matter until an office has actually been accepted contrary to law. (File 9736-15, Mar. 28, 1910; 9736-18, June 25, 1910; 21 Op. Atty. Gen., 510. See note to sec. 1440, R. S.) Interpretation of sections 1763-1765, Revised Statutes. — Taking these sections all together, held, that the purpose of the legis- lation was to prevent a person holding any office or appointment, for which the law pro- \ide8 a definite compensation by way of salary or otherwise, which is intended to cover all the services which, as such officer, he may be called upon to render, from recei\ing extra compen- sation, additional allowances, or pay for other servdces which may be required of him either by act of Congress or by order of the head of his department, or in any other mode, added to or connected with the regular duties of the place which he holds; but these sections have no application to the case of two distinct offices, places, or employments, each of which has its own duties and its own compensation, which offices may both be held by one person at the same time. In the latter case, he is in the eye of the law two officers, or holds two places or appointments, the functions of which are sep- arate and distinct, and, according to all the decisions, he is in such case entitled to recover the two compensations. In the former case, he performs the added duties under his appoint- ment to a single place, and the statute has pro- vided that he shall receive no additional com- pensation for that class of duties unless it is so provided by special legislation. (U. S. v. Saunders, 120 U. S., 126; see also Mullett v. U. S., 150 U. S., 566; but see act July 31, 1894, quoted above under sec. 1763, R. S.) The legislature contemplated duties imposed by superior authority upon the officer as a part of his duty, and which the superior authority had in the emergency a right to impose, and the officer was bound to obey, although they were extra and additional to what had pre\dously been required. But this legislation can by no fair interpretation be held to embrace an em- ployment which has no affinity or connection, either in its character or by law or usage, with the line of his official duty, and where the Ber\dce to be performed is of a different charac- ter and for a different place, and the amount of compensation regulated by law. (Converse v. U. S., 21 How., 463.) A receiver of public moneys in Kansas, who had been appointed agent for the sale of Indian trust lands under a treaty with an Indian tribe, was entitled to commissions on such sales in addition to the full compensation as receiver allowed him by law. While the exact amount of his compensation was not fixed, it was clearly inferred that such compensation as the law im- plies where labor is performed by one at the re- request of another, that is to say, a reasonable compensation, would be paid. (U. S. v. Brindle, llOU. S.,688.) The case of United States v. Brindle, in which an Indian agent received large additional com- pensation for ser\dce3 connected with the sale of lands belonging to the Indians of his agency, was upon the ground that these additional services were performed for the benefit of the Indians, and the statute implied the payment of reasonable compensation for such services. (U. S. V. Saunders, 120 U. S., 126.) A retired officer of the Army appointed by the Secretary of the Interior as supervisor of the erection of the Pension Bureau building was entitled to compensation for such services in addition to his pay. Sections 1764 and 1765, Re\'ised Statutes, do not preclude an officer from receiving compensation other than his salarjr for services rendered the Government in an employment which has no affinity or con- nection with his official duty. (Meigs v. U. S., 19Ct. Cls., 497.) The only difference between this case and those decided by the Supreme Court (Converse V. U. S. and U. S. v. Brindle, above cited) is that in each of the latter cases the party held an office with active duties to be performed, while the present claimant held one with no such duties, but this does not appear to affect the result. The point in each of them was, whether the party was entitled to compensa- tion for services rendered in an employment which had no affinity or connection with the line of his official duty; and the Supreme Court held that he was. This disposes of the objec- tions raised against the claimant's demand in this case. (Meigs v. U. S., 19 Ct. Cls., 497.) A retired Army officer may be employed by the War Department to supervise work, where he could not have been assigned to that duty by order of the Secretary of War, and sections 1763, 1764, and 1765, Revised Statutes, relating to double pay, do not apply to such a case. (Yates V. U. S., 25 Ct. Cls., 296.) An officer who has been appointed to and is fully invested with two distinct offices may receive the compensation appropriated for each. Sections 1763-1765, Revised Statutes, do not apply to such a case. (16 Op. Atty. Gen., 7.) The construction which has been given to these sections, especially in the case of Con- verse V. United States (above noted), is that the intent and effect of them are to forbid offi- cers holding one office from receiving compen- sation for the discharge of duties belonging to another, or additional pay, extra allowance, or compensation for such other services or duties, when they hold the commission of but a single office, and by virtue of that office, or in addi- tion to the duties thereof, have assigned to them the duties of another office. According to that decision, however, if an officer^ holds two distinct commissions, and thus two distinct offices, he may receive a salary for each. The evil intended to be guarded against by these statutes was not so much plurality of offices as it was additional pay or compensation to an officer holding but one office for performing additional duties or the duties properly belong- ing to another. If he actually holds two com- missions, and does the duties of two distinct offices, he may receive the salary which has been appropriated to each office. Sections 1068 Public Officers. PL 2. REVISED STATUTES. Sec. 1765 1763-1765 are condensations from statutes which were in existence at the time this deci- sion was made and in conformity with it. (16 Op. Atty. Gen., 7; see also 12 Op. Atty. Gen., 459.) Holding' two incompatible offices.- — It has been regarded as settled since the decision of the Supreme Court in United States v. Saun- ders (above noted) that a person may hold two offices and receive the salaries of both, not- \vithstanding the provisions of the Revised Statutes, pro\'ided they are distinct, each hav- ing its o^vn duties and compensation, and are not incompatible. In this case the offices are distinct, and each has its own duties and compensation. The only question presented, therefore, is whether they are incompatible. (Crosthwaite v. U. S., 30 Ct. Cls., 300.) Two offices are incompatible when a per- formance of the duties of the one will prevent or conflict with a performance of the duties of the other, or when the holding of the two offices is contrary to the policy of the law. (Cros- thwaite v. U. S., 30 Ct. Cls., 300.) The duties of an examiner in the Department of Justice and of special assistant attorneys ap- pointed to assist in the prosecution of criminal business are distinct and different and are not incompatible. (Crosthwaite v. U. S., 30 Ct. Cls., 300.) Where two incompatible offices are held by the same persoUj to which are attached differ- ent salaries, he is not entitled to the compen- sation of both, but is entitled to the larger of the two. (Webster v. U. S., 28 Ct. Cls., 25; Winchell v. U. S., 28 Ct. Cls., 30.) The offices of engineer in the Navy and pay- master are incompatible. (Webster v. U. S., 28 Ct. Cls., 25.) A cadet engineer in the Navy is not entitled to the salary of a draftsman in the Hydro- graphic Office in addition to his own, though he hold both offices. The office of draftsman in the Hydrographic Office is incompatible with that of cadet engineer. The Secretary of the Navy may detail a cadet engineer for serv- ice in the Hydrographic Office, but the detail will not entitle the officer to additional pay. (Winchell v. U. S., 28 Ct. Cls., 30.) The duties or nonduties of a retired officer are not incompatible with the duties of a chief clerk in an executive department. The duties of an officer beyond seas would be incompatible with those of a retired officer liable to be called at any time into active service. Congress have recognized the distinction by providing that a retired officer shall not receive his pay as such while holding a diplomatic or consular office beyond seas, but have left the right of a retired officer to hold a civil office within the country unimpaired. (Geddes d.U. S.,38Ct. Cls.,446.) Incompatibility exists where the nature and duty of the two offices are such as to render it improper, from considerations of public policy, for one incumbent to hold both. It does not necessarily arise when the incumbent places himself for the time being in a position where it may be impossible for him to discharge the duties of both offices. (22 Op. Atty. Gen., 238, citing cases.) A retired officer of the Army is not prohibited by law from holding an office in an executive department, nor from recei\'ing the salary thereof in addition to his retired pay. (Col- lins V. U. S., 15 Ct. Cls., 22. But see below as to interpretation of act of July 31, 1894.) An assistant medical referee, appointed under Revised Statutes, section 4776, is not entitled, in addition to his salary, to the fees of an ex- amining surgeon, while 8er\'ing on an examin- ing board under section 4775, Re\'i8ed Statutes, as the duties of the two positions are not com- patible; neither are they distinct offices. Payment for both services is, therefore, pro- hibited by Revised Statutes, sections 176.3-1765. (Graham r. U. S., 29 Ct. Cls., 404.) "Office," defined. — See note to Constitu- tion, Article II, section 2, clause 2. ' 'An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, dura- tion, emolument, and duties. * * * A Government office is different from a Govern- ment contract. The latter from its nature ia necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other." (U. S. v. Hartwell, 6 Wall., 385, 393; see also U. S. v. Germaine, 99 U. S., 508; Auffmordt v. Hedden, 137 U. S., 310,327.) Civil surgeons appointed by the Commissioner of Pensions, under section 4777 of the Re\'ised Statutes, are not officers of the United States. (U. S. V. Germaine, 99 U. S., 508.) An acting paymaster, appointed by the senior officer present, is not an officer. He is not appointed as required by the Constitution, takes no oath of office, anci gives no bond as paymaster. He is appointed to discharge the duties of an office which he does not hold, that of paymaster, and he is therefore prohibited from receiving compensation by sections 1763 and 1765, Revised Statutes. (Webster oj. U. S., 28 Ct. Cls., 25; see note to sees. 1381 and 1564, R. S.) A midshipman appointed as acting master may hold such office in addition to his regular naval rank, acting masters not forming part of the regular and permanent Navy; and if ap- pointed acting master, he is entitled to receive the pay of that grade. (10 Op. Atty. Gen., 111.) An internal-revenue collector is undoubtedly an officer in a branch of the public service, with a salary fixed by law. (Landram v. U. S., 16 Ct. Cls., 74.) ''A deputy collector of internal revenue, not being an employee of the Government (i. e., not in privity with it so as to be able to main- tain an action for his pay), does not come within the provisions of the Revised Statutes, sections 1763, 1764, prohibiting officers and employees of the Government from receiving dual or extra compensation." (Landram v. U. S., 16 Ct. Cls., 74.) A special deputy marshal is not a public officer within the constitutional limitation as to appointment. (17 Op. Atty. Gen., 684.) The offices referred to in the above sections of the Revised Statutes are officers under the Government of the United States, and an office under the government of the District of Colum- 1069 Sec. 1765. Ft. 2. REVISED STATUTES. Public Oflacers. bia is not included therein. (Donovan v. U. S., 21 Ct. ('Is., 120.) The pajTuent of Navy and privateer pensions under the orders of the Secretary of the Navy does not constitute the person paying them an officer of the Ignited States; and if the person thus disbursing public money at the same time holds the office of Navy agent he can not be allowed any extra pay or emolument for mak- ing such disbursement. (Browne v. U. S., 4 Fed. Cas. No. 2,0:?G.) Interpretation of act approved July 31, 1894. — See note to section 1763, Re\'ised Stat- utes, for text of said act. (^nly officers of the United States were in the mind of Congress in 1894 when enacting the pro^'ision as to holding of two offices. (22 Op. Atty. Gen., 184, 188.) It would seem that the word "office" in the act of 1894 is to be presumed, in the absence of indications to the contrar^', to embrace only what are called constitutional officers, i. e., those referred to in Article II, section 2, clause 2 of the Constitution. Under this construction, a circuit judge of the I'nited States appointed as a commissioner under a convention with Great Britain is entitled to compensation ad- ditional to that of his salary, as the commis- sionership was estal)lished by treaty and was not an office "estal)lished by law" within the meaning of the Constitution. (22 Op. Attv. Gen., 184.) The legal definitions of a public office have been many and various. The idea seems to prevail that it is an employment to exercise some delegated part of the sovereign power; and the Supreme Court appears to attach importance to the idea of "tenure, duration, emolument, and duties, " and suggests that the last should be continuing or permanent, not occasional or temporary. (22 Op. Atty. Gen., 184.) As for the popular language, it seems clear that a person employed solely as a sworn judge of a joint international commission would not be spoken of as an officer of either country, although, under a treaty requiring it, selected and sent to his post bv one of them. (22 Op. Atty. Gen., 184.) A general appraiser detailed by the Secretary of the Treasury, without additional compen- sation, as "an expert to represent the United States in the international commission for the conversion of the present Chinese tariff into specific rates, ' ' was not appointed to another office under the Government or engaged in other incompatible Government service. (24 Op. Atty. Gen., 12.) An office is defined to be " a public charge or employment, " and he who performs the duties of the office is an officer. If employed on the part of the United States, he is an officer of the United States. Although an office is an "employment," it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act or perform a service, without becoming an officer. But if a duty be a continuing one, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer. (U. S. v. Maurice, 2 Brock., 9(J, quoted in 24 Op. Atty. Gen., 12.) An appointment as special assistant to a United States attorney to aid in a certain case or set of cases is not an appointment to an office within the meaning of the act of 1894, as the essential element of "duration" is lacking. The attornev for the Court of Private Land Claims, receiving an annual salary of $3,500, may, therefore, be allowed additional compensation as special assistant to a United States attorney for New Mexico. (2 Comp. Dec, 271.) A chief of di^dsion in the office of the Super- vising Architect of the Treasur\^ at a salary of more than $2, -500 per annum may be paid compensation as a member of a commission appointed under the act of February 20, 1895, to select a site for a public building, service upon such commission not invohdng the holding of an office within the meaning of the act of 1894. (2 Comp. Dec, 467.) The Secretary of the Naw is not precluded by the act of July 31, 1894, section 2, from employing a retired officer under the act of February 19, 1897, to supervise the completion of certa.in tables of planets. The said act of 1897 read as follows: "For ser\-ices of a com- petent mathematician to supervise the com- pletion of the tables of the planets, two thousand five hundred dollars, to be immediately avail- able." This pro\'ision did not create an office, nor did it contemplate any of the formalities in the selection of such an employee as to dis- tinguish his employment as an office. There is no permanency to the term; there is no requirement that the person employed shall either take an official oath or receive a com- mission. (21 Op. Atty. Gen., 507. See 2 Comp. Dec, 271, to the effect that "it does not follow that everyone who takes the oath of office is an officer"; in the latter case the special assistant to the United States attorney was required by law to take an oath.) A retired officer of the Navy on active duty in time of war is entitled to an additional salary as meteorologist, to which position he was appointed by the Secretary of the Navy vnXh. salary payable from the appropriation "Na- tional defense," which appropriation was to be expended at the discretion of the President. The action of the Secretary of the Navy was the action of the President, and the power granted the latter by the appropriation for the national defense was intended to be the most adequate and comprehensive, reposing the largest discretion in the President, not subject to review. (Hayden v. U. S., 38 Ct. Cls., 39.) The chief clerk of the Department of Agri- culture, at a salary of $2,500 a year, was ap- pointed a captain of Infantry on the retired list of the Army under authority of a special act of Congress approved June 6, 1900 (31 Stat., 554): Held, that his appointment as a retired officer ha\dng been specially authorized by Congress while he was holding an office with a salary attached thereto of $2,500 per annum, the act of July 31, 1894, did not apply; and that a retired officer does not receive "compensation as an officer or employee of the Government" within the meaning of the following enactment loro Public Oflicers. PL 2. REVISED STATUTES. Sec. 1765. of March 3, 1885 (23 Stat., 356, sec. 2): "That no part of the money herein or hereafter appro- priated for the Department of Agriculture shall be paid to any person, as additional salary or compensation, receiving at the same time other compensation as an officer or employee of the Government." (Geddes v. U. S., 38 Ct. Cls., 428.) There must be "compensation" received before there can be "additional compensation " prohibited ; as a matter of fact, the pay of a re- tired officer is not compensation. (Geddes v. tr. S., 38 Ct. Cls., 428.) The pay of a retired officer appointed under a special act of Congress "is not given as compensation for discharging the duties of any office during the period for which it is to be paid, but rather as a bounty, and in the nature of a pension, for services to his country previously performed. (Collins v. U. S., 15 Ct. Cls., 22, 40.) The pay of an officer on the retired list is "an honorable form of pension." (Fletcher v. U. S., 26 Ct. Cls., 541, 563.) It is well settled that an officer's reduced retired pay is but an honorary form of pension to be paid him when, having reached a certain age, it is presumed that he is no longer well fitted to render active service to the Govern- ment. (Geddes v. U. S., 38 Ct. Cls., 428. But see 11 Comp. Dec, 422, and 29 Op. Atty. Gen., 397, 407, where this reasoning of the Court of Claims is not concurred in.) The i^rovision in the act of July 31, 1894, ex- cepting from its operation retired officers of the Army and Navy, in certain specified cases, necessarily implies that such retired officers are included in the remaining portion of the enactment relating to offices having "annual salary or compensation attached thereto." (11 Comp. Dec, 422.) A retired officer of the Army, whose retired pay was $2,625 per annum, can not hold the l)osition of clerk in the Treasury Department at $1,400 per annum, as the holding of both offices is forbidden by the act of 1894. (11 Comp. Dec, 422.) A retired officer of the Marine Corps, whose pay as such is $1,980 per annrnn, can accept the jiosition of cashier in the subtreasury at Phila- delphia, Pa., at a salary of $2,500 per annum, and continue to receive the aforementioned retii-ed pay. (Comp. Dec, Sept. 26, 1910, file 26254-539, case of Capt. John G. Muir, U. S. M. C, following Geddes v. U. S., above noted, and not citing 11 Comp. Dec, 422.^ A retired officer of the Navy whose retired pay amounts to $2,500 per annum is mthin the prohibition of section 2 of the act of July 31, 1894, and is ineUgible to hold office as clerk of class 3 under the United States Civil Service Commission. (29 Op. Atty. Gen., 503.) It is clear, both on principle and according to the authorities, that a retired officer of the Navy holds an office with a salary or annual compensation attached, within the meaning of the enactment of 1894, even if the express lan- guage of the exception be not considered ; this conclusion is rendered irresistible by the pi"o- vision to that act excepting retired officers of the Army or Navy in certain cases. (29 Op. Atty. Gen., 503. :j A notary public in the District of Columbia is an officer of the Government within the meaning of the act of July 31, 1894; and if he accepts an ofiice, the salary of which is $2,500, he is precluded by the statute from receiving any compensation for services rendered as notary to the Government. (Pack v. U. S., 41 Ct. Cls., 414.) The position of clerk of class 3 under the United States Civil Service Commission, the appointment thereto being authorized by the President, is an office within the meaning of the act of 1894. (29 Op. Atty. Gen., 503.) Where appointment to two certain offices is claimed, and to so hold would involve a con- struction that the appointment was invalid under the act of 1894, the court must adopt the view that a legal appointment was contem- plated, and hence that the claimant was not appointed to two offices. (McMath v. U. S., 51 Ct. Cls., 356; affinned, 248 U. S., 151.) A retired naval officer whose compensation as such amoimts to $2,500 per annum is ineli- gible to appointment as a commercial attache under the provisions of the act of July 16, 1914 (38 Stat., 500), making appropriations for the legislative, executive, and judicial expenses of the Government. (30 Op. Atty. Gen., 298.) Additional compensation allowed med- ical officer of the Navy. — A medical officer in the Na\'y is entitled to compensation from appropriations under the control of the Depart- ment of Justice for professional services ren- dered by him to United States prisoners in a United States jail. (Comp. Dec, May 15, 1912, 45 MS. Comp. Dec, 300, following 18 Comp. Dec, 156; see note to sec. 1368, R. S., under "Medical attendance to persons not in the Navy.") Additional compensation not allowed naval officer detailed to War Depart- ment. — Where a naval constructor was de- tailed by the Secretary of the Na\y to perform duty under the War Department, in inspecting a vessel chartered as an Army transport, the officer is not burdened with services not inci- dent to his office; the duties required of him were of the general nature performed by him in the Navy. Additional compensation for such inspection service is prohibited by sec- tion 1765, Revised Statutes. (Stocker v. U. S., 39 Ct. Cls., 300; see notes to sees. 1404 and 1437, R. S.) For other cases, see note to section 1440, Revised Statutes, as to appointment of Navy officers in the diplomatic or consular service section 1860, Revised Statutes, as to naval per- sonnel holding civil offices in territories; act June 10, 1896 (29 Stat . , 361 ), as to officers of the Navy holding employment with private con- tractors; sections 170 and 182, Re\'ised Stat- utes, as to clerks and officers in executive departments; and act March 4, 1909, sec 113, 35 Stat., 1109, as to officers acting as attorneys for claimants, etc, in matters in which the United States is interested. 1071 Sec. 1778. PL 2. REVISED STATUTES. Public Officers. and to turn the balances into the Treasury. They would naturally be in "arrears" and be in a position to have a ' ' balance due " found by the accounting officers. (26 Op. Attv. Gen., 77.) The clause, "until he has accounted for and paid into the Treasury all sums for which he may be liable," is conclusive upon the point. This language is not appropriate to mere in- debtedness. (26 Op. Atty. Gen., 77.) The provision that suit shall be commenced against the delinquent "and his sureties" indicates that Congress was not regarding mere debtors but the class of persons who had sure- ties for the performance of their contracts or their other duties, chiefly, of course, the re- ceipt and disbursement of public moneys. (26 Op. Atty. Gen., 77.) For other cases, see note to section 236, Revised Statutes. Sec. 1766. [Officer in arrears ; withholding pay.] No money shall be paid to any person for his compensation who is in arrears to the United States, until he has accounted for and paid into the Treasury all sums for which he may be liable. In all cases where the pay or salary of any person is withheld in pur- suance of this section, the accounting officers of the Treasury, if required to do so by the party, his agent or attorney, shall report forthwith to the Solicitor of the Treasury the balance due; and the Sohcitor shall, within sixty days thereafter, order suit to be commenced against such delinquent and his sure- ties.— (25 Jan., 1828, c. 2, v. 4, p. 246. 20 May, 1836, c. 77, v. 5, p. 31.) Persons to whom applicable. — Section 1766, Revised Statutes, does not apply to an ordinary clerk, who is a judgment debtor of the United States under judgment for a debt gro'uing out of transactions wholly foreign to his employment, and having nothing to do with any advance of public money or any accounting therefor. In such case this section does not require the head of the department to ^vithhold the salary of the clerk. Whether or not the Government has the right, on general principles, to do so, independently of section 1766, not decided. (26 Op. Atty. Gen., 77; see note to sec. 236, R. S.) This section does not apply to mere indebted- ness, but clearly applies to one who has received Government moneys to be disbursed or covered into the Treasury; to persons who are in a rela- tion of trust to the Government a,nd have in their hands sums or balances of public funds for which they are bound to render accounts Sec. 1773. [Commissions.] The President is authorized to make out and deliver, after the adjournment of the Senate, commissions for all officers whose appointments have been advised and consented to by the Senate. — (2 Mar., 1867, c. 154, s. 6, v. 14, p. 431.) The commissions of all officers under the direc- shall not be affixed to any such commis- tion and control of the Secretary of the sion before the same shall have been signed Navy shall be made out and recorded in by the President of the United States, the Navy Department, and the depart- (Act Mar. 28, 1896, 29 Stat., 75.) ment seal affixed thereto, any laws to the See note to Constitution, Article II, section 3, contrary notwithstanding; but such seal , under "II. Duty to commission officers." Sec. 1774. [Recess appointments; accounting officers notified.] Whenever the President, witliout the advice and consent of the Senate, designates, author- izes, or employs any person to perform the duties of any office, he shall forth- with notify the Secretary of the Treasury thereof, and the Secretary of the Treasury shall thereupon communicate such notice, to all the proper accounting and disbursing officers of his Department. — (2 Mar., 1867, c. 154, s. 8, v. 14, p. 431.) Sec. 1778. [Oaths or acknowledgments ; before whom taken.] In all cases in which, under tlie laws of the United States, oaths or aclaiowledgments may now be taken or made before any justice of tlie peace of any State or Territory, or in the District of Columbia, they may hereafter be also taken or made by or before any notary public duly appointed in any State, district, or Territory, or any of the commissioners of the circuit courts, and, when certified under the hand and official seal of such notary or commissioner, shall have the same force and effect as if taken or made by or before such justice of the peace. — (16 1072 Public Officers. Pt. 2. REVISED STATUTES. Sec. 1784. Sept., 1850, c. 52, v. 9, p. 458. 29 July, 1854, c. 159, s. 1, v. 10, p. 315. 22 June, 1874, c. 390, s. 20, v. 18, p. 186. 15 Aug., 1876, c. 304, v. 19, p. 206.) Act.t)f May 28, 1896, section 19 (29 Stat., 184), amended by act March 2, 1901 (31 Stat., 956), pro\'ided for the appointment of United States commissioners by the district court of each judicial district, who shall have the same powers and perform the same duties as commissioners of the cir- cuit courts. Act of JMarch 3, 1911, section 289 (36 Stat., 1167), abolished circuit courts. As to acknowledgment of deeds in Guam and Samoa, see act of June 28, 1906 (34 Stat., 552). As to administration of oaths to expense ac- counts by chief clerks of the various exec- utive departments or clerks designated by them for the purpose, see act of August 24, 1912, section 8 (37_Stat., 487). See section 183, Revised Statutes, and note thereto. Sec. 1779. [Newspapers, books, etc. ; restriction upon purchase.] No execu- tive officer, other than the heads of Departments, shall apply more than thirty dollars, annually, out of the contingent fund under his control, to pay for newspapers, pamplilets, periodicals, or other books or prints not necessary for the business of his office. — (3 Mar., 1839, c. 82, s. 3, v. 5, p. 349.) less specifically authorized by the appro- priation. (Act Mar. 15, 1898, sec. 3, 30 Stat., 316.) See sections 192 and 193, Revised Statutes, and note thereto. Expenditures for law books, books of refer- ence, and periodicals are prohibited, un- Sec. 1784. [Contributions, presents, etc., to superiors.] No officer, clerk, or employe in the United States Government employ shall at any time solicit con- tributions from other officers, clerks, or employes in the Government service for a gift or present to those in a superior official position ; nor shall any such officials or clerical superiors receive any gift or present offered or presented to them as a contribution from persons in Government employ receiving a less salary than themselves; nor shall any officer or clerk make any donation as a gift or present to any official superior. Every person who violates this section shall be summarily discharged from the Government employ. — (1 Feb., 1870, c. 11, V. 16, p. 63.) "Superior official" construed. — It is con- sidered that an officer superior in rank is a su- perior official within the intent of the section 1784, Revised Statutes, and the Navy Regu- lations on the same subject. Accordingly, officers of the Corps of Civil Engineers in the Navy could not legally present a testimonial to another member of that corps of higher rank in the Navy, notwithstanding that the latter's duty did not place him over and in charge of those contributing. (File 26806-33, Nov. 9, 1909; Naval Dig., 1916, pp. 621, 622.) 1073 TITLE XXIII. THE TERRITOEIES. Sec. 1860. [Voting and holding office in the Territories.] * * * Third. No officer, soldier, seaman, mariner, or other person in the Army or Navy, or attached to the troops in the service of the United States, shall be allowed to vote in any Territory, by reason of being on service therein, unless such Territory is, and has been for the period of six months, his permanent domicile.— (25 Jan., 1867, c. 15, v. 14, p. 379.) Fourth. No person belonging to the Army or Navy shall be elected to or hold any civil office or appointment in any Territory, except officers of the Army on the retired list. The fourth clause of this section was expressly- amended and reenacted to read as above by act of March 3, 1883(22 Stat., 567), the amendment consisting in the addition, at the end of said clause, of the words "except officers of the Army on the retired list." The first and second clauses of this section are omitted, as having no application to the Navy. See sections 1440, 1763-1765, Revised Statutes, and laws noted thereunder, as to restric- tions upon civil employment by officers of the Navy. Virgin Islands. — The Virgin Islands of the United States are neither organized nor incor- porated territory, and therefore section 1860, Re\ised Statutes, does not preclude the Presi- dent from nominating a naval officer for the position of judge therein. (31 Op. Atty. Gen., 118.) Section 1860 applies only to organized terri- tories, and is not applicable to a mere possession, such as the Virgin Islands, for which there has been no organic act. (31 Op. Atty. Gen., 118. Prior to this opinion the act of Mar. 3, 19l7, 39 Stat., 1132, had been enacted, establishing a temporary government for the Virgin Islands.) Philippine Islands. — A mere contribution by the Philippine Government to the per- formance of certain military functions, and in- trusting the funds to an officer of the United States Army, who is held to military responsi- bility therefor by court-martial, does not make that officer a civil officer of the Philippine Gov- ernment and amenable to trial in the civil courts for falsification of his accounts as a public official. (Carrington v. U. S., 208 U. S., 1.) An office commonly requires something more than a single transitory act to call it into being. (Carrington v. U. S., 208 U. S., 1.) The fact that an officer of the United States Army, intrusted with money by the Philippine Government to be expended in connection with his military command, signs his account, "Dis- bursing Officer," instead of by his military title, does not make him a civil officer of the Philippine Government. (Carrington v. U. S., 208 U. S., 1.) Porto Rico. — This section applies to Porto Rico, which has been held to be a "territorv" under its terms. (File 9736-18, June 25, 1910, citing file 1831-8, Apr. 18, 1917: 5381-1, Aug. 30, 1907; 11 Comp. Dec, 336, 339.) A naval surgeon can not be appointed to the position of health officer of Culebra, Porto Rico. (File 1831-8, Apr. 18, 1907.) An officer of the Marine Corps can not accept an appointment as a member of the military staff of the Governor of Porto Rico. (File •5381-], Aug. 30, 1907.) Hawaiian Islands. — This section has been held inapplicable to the Hawaiian Islands. (File 9736-18, June 25, 1910, citing Matter of Loucks, 13 Hawaii, 17.) Mayor of city. — Section 1860 does not pro- hibit a retired officer of the Navy from accept- ing an office as mayor of the city in one of the States if duly elected thereto; in such case, however, a retired officer would be subject to recall to naval duty if the exigencies of the service should require in time of war. (File 5650-00, Sept. 21, 1900.) 1075 TITLE XXV. CITIZENSHIP. Sec. 1996. [Rights as citizens forfeited for desertion, &c.] All persons who deserted the military or naval service of the United States and did not return thereto or report themselves to a provost-marshal within sixty days after the issuance of the proclamation by the President, dated the 11th day of March, 1865, are deemed to have voluntarily relinquished and forfeited their rights of citizenship, as well as their right to become citizens; and such de- serters shall be forever incapable of holding any ofRce of trust or profit under the United States, or of exercising any rights of citizens thereof. — (3 Mar., 1865, c. 79, s. 21, V. 13, p. 490.) See section 1998, Revised Statutes, and note thereto. Sec. 1998. [Desertion in time of war; penalties and forfeitures.] That every person who hereafter deserts the mihtary or naval service of the United States, or who, being duly enrolled, departs the jurisdiction of the district in which he is enrolled, or goes beyond the limits of the United States, with intent to avoid any draft into the military or naval service, lawfully ordered, shall be liable to all the penalties and forfeitures of section nineteen hundred and ninety- six of the Revised Statutes of the United States : Provided, That the provisions of this section and said section nineteen hundred and ninety-six shall not apply to any person hereafter deserting the military or naval service of the United States in time of peace: And provided further, That the loss of rights of citizen- ship heretofore imposed by law upon deserters from the mihtary or naval serv- ice may be mitigated or remitted by the President where the offense was com- mitted in time of peace and where the exercise of such clemency will not be prejudicial to the public interests: And provided further, That the provisions of section eleven hundred and eighteen of the Revised Statutes of the United States that no deserter from the military service of the United States shall be enlisted or mustered into the military service, and the provisions of section two of the Act of Congress approved August first, eighteen hundred and ninety-four, entitled 'An Act to regulate enlistments in the Army of the United States,' shall not be construed to preclude the reenlistment or muster into the Army of any person who has deserted, or may hereafter desert, from the military service of the United States in time of peace, or of any soldier whose service during his last preceding term of enlistment has not been honest and faithful, whenever the reenlistment or muster into the military service of such person or soldier shall, in view of the good conduct of such person or soldier subsequent to such desertion or service, be authorized by the Secretary of War. 1077 Sec. 1998. Ft. 2. REVISED STATUTES. Citizenship. This section was expressly amended and reen- acted to read as above by act of Au,2;ust 22, 1912 (37 Stat., 356), which also re- enacted \nth amendments sections 1420 and 1621, article 19, of the Revised Stat- utes, relating to the enlistment of deserters in the Navy. As originally enacted, sec- tions 1998 read as follows: "Every person who hereafter deserts the military or naval Ber\ice of the United States, or who. being duly enrolled, departs the jurisdiction of the district in which he is enrolled, or goes beyond the limits of the United States, \vith intent to avoid any draft into the military or naval service, lawfully ordered, shall be liable to all the penalties and for- feitures of section nineteen hundred and ninety-six."— (3 Mar., 1865, c. 79, s. 21, v. 13, p. 490.) Effect of pardon. — Section 1998, Rmdsed Statutes, as amended by the act of August 22, 1912, prescribes disabilities, not merely inci- dental to (jualifications for serWce in the Navy, but in effect and by express avowal constituting punishment for offenses, which, as such, would of course be mped out by an uncondi- tional pardon. (31 Op. Atty. Gen., 225; for other cases, see note to Constitution, Art. II, sec. 2, clause 1, and see note to sec. 1441, R. S.) Penalties attach only upon conviction. — Section 1998, Revised Statutes, is not void as a bill of attainder, because it contemplates trial by court-martial to enforce this penalty, as well as the other penalties for desertion. (Gotcheus r. Matheson, 58 Barb. (N. Y.), 153,61 N. Y., 425; see also State i;. Symonds, 57 Me., 148; Holt V. Holt, 59 Me., 464- Severance v. Healy, 50 N. H., 448; Huber v. Reily, 53 Pa. St., 112; Mc- Cafferty?;. Guyer, 59 Pa. St., 110; Kurtz v. Moffitt, 115 U. S., 501.) For other cases, see note to Constitution, Article I, section 9, clause 3. See also note to to Constitution, Article I, section 8, clause 4'. 1078 TITLE XXVI. THE ELECTIVE FRANCHISE. Sec. 2003. [Interference with elections; Army and Navy Officers.] No officer of the Army or Navy of the United States shall prescribe or fix, or attempt to prescribe or fix, by proclamation, order, or otherwise, the qualifications of voters in any State, or in any manner interfere with the freedom of any elec- tion in any State, or with the exercise of the free right of suffrage in any State. — (25 Feb., 1865, c. 52, s. 1, v. 13, p. 437.) See Criminal Code, act March 4, 1909, sections 22-26 (35 Stat., 1092, 1093). 1079 TITLE XXIX. IMMIGRATION. Sec. 2163. [Examination of vessels.] The President is empowered, in such way and at such time as he may judge proper, to direct the vessels of the United States, and the masters and commanders thereof, to examine all vessels navi- gated or owned in whole or in part by citizens of the United States, and regis- tered, enrolled, or licensed under the laws thereof, whenever, in the judgment of such master or commanding officer, reasonable cause exists to believe that such vessel has on board any subjects of China, Japan, or other oriental country, known as "coolies;" and, upon sufficient proof that such vessel is employed in violation of the preceding provisions, to cause her to be carried, with her officers and crew, into any port or district within the United States, and delivered to the marshal of such district, to be held and disposed of according to law. — (19 Feb., 1862, c. 27, s. 6, v. 12, p. 341.) 1081 TITLE XXXII. THE PUBLIC LANDS. Sec. 2293. Affidavits; naval personnel; before whom made. 2300. Minors, privileges of. 2304. Soldiers' and sailors' homestead. 2305. Credit for time in military and naval service. 2308. Service in Navy equivalent to residence. 2309. Entry by agent; requirements. 2393. Military or other reservations. Sec. 2458. 2459. 2460. 2461. 2462. 2463. Lands for supplying timber to the Navy. Selection of live-oak and red-cedar tracts. Protection of timber in Florida. Cutting or destroying timber reserved for Navy. Forfeiture of vessels. Clearance of vessels; timber cut by con- sent of Navy Department. Sec. 2293. [Affidavits; naval personnel; before whom made.] In case of any person desirous of availing himself of the benefits of this cliapter; but who, by reason of actual service in the military or naval service of the United States, is unable to do the personal preliminary acts at the district land-office which the preceding sections require; and whose family, or some member thereof, is residing on the land which he desires to enter, and upon which a bona-fide improvement and settlement have been made, such person may make the affidavit required by law before the officer commanding in the branch of the service in which the party is engaged, which affidavit shall be as binding in law, and with like penalties, as if taken before the register or receiver; and upon such affidavit being filed with the register by the wife or other representa- tive of the party, the same shall become effective from the date of such filing, provided the application and affidavit are accompanied by the fee and commis- sions as required by law. — (21 Mar., 1864, c. 38, s. 4, v. 13, p. 35.) The words "this chapter" in the above section refer to chapter 5, "Homesteads," of Title XXXII, "The Public Lands." Amendment to this section was made by act of October 6, 1917 (40 Stat., 391), as follows: "That during the continuance of the pres- ent war with Germany, and until his dis- charge from ^er^dce, any man serving in the armed forces of the United States, who, prior to the beginning of his services was a settler, an applicant, or entryman under the land laws of the United States, or who has, prior to enlistment, filed a contest, with the view of exercising preference right of entry therefor, may make any affidavit required by law or regulation of the department, affecting such application, entry, or con- test, or necessary to the making of entry in the case of the successful termination of such contest awarding him preference right of entry, before his commanding officer as provided in section twenty-two hundred and ninety-three of the Revised Statutes of the United States, which affidavits shall be as binding in law and with like penalties as if taken before the Register of the United States Land Office." Amendment to this section was also made by the Soldiers' and Sailors' Civil Relief Act of March 8, 1918, section 501 (40 Stat., 448), which act, however, by section 603 thereof r40 Stat., 449) was to remain in force only until the termination of the war and for six months thereafter. Sec. 2300. [Minors, privileges of.] No person who has served, or may here- after serve, for a period not less than fourteen days in the Army or Navy of the United States, either regular or volunteer, under the laws thereof, during the existence of an actual war, domestic or foreign, shall be deprived of the benefits of this chapter on account of not having attained the age of twenty-one years. — (20 May, 1862, c. 75, s. 6, v. 12, p. 393.) 54641°— 22- -69 1083 Sec. 2304. PL 2. REVISED STATUTES. Public Lands. possess under said laws: Provided, That any requirements as to establishment of resi- dence within a limited time shall be sus- pended as to entry by such person until six months after his dipcharire from military service: Provided further, That applications for entry may be verified before any officer in the United States, or any foreiiijn coun- try, authorized to administer oaths by the laws of the State or Territory in which the land may be situated." The words "this chapter" in the above section refer to chapter 5, "Homesteads," of Title XXXI 1, '-The Public Lands." By act of Aus;ust 31, ]<)18, section 8 (40 Stat., 957), it was provided "That any person, under the ?ige of twenty-one, who has served or shall hereafter serve in the Army of the United States during the present emergency, shall be entitled to the same rights under the homestead and other land and mineral entry laws, general or special, as those over twenty-one years of age now Sec. 2304. [Soldiers' and sailors' homesteads.] Every private soldier and officer who has served in the Army of the United States during the recent rebel- lion for ninety days, and who was honorably discharged and has remained loyal to the Government, including the troops mustered into the service of the United States by virtue of the third section of an act approved February thirteenth, eighteen hundred and sixty-two, and every seaman, marine, and officer who has served in the Navy of the United States or in the Marine Corps during the rebel- lion for ninety days, and who was honorably discharged and has remained loyal to the Government, and every private soldier and officer who has served in the Army of the United States during the Spanish war, or who has served, is serv- ing, or shall have served in the said Army during the suppression of the in- surrection in the Philippines for ninety days, and who was or shall be honorably discharged; and every seaman, marine, and officer who has served in the Navy of the United States or in the Marine Corps during the Spanish war, or who has served, is serving, or shall have served in the said forces during the suppression of the insurrection in the Phihppines for ninety days, and who was or shall be honorably discharged, shall, on compliance with the provisions of this chapter, as hereinafter modified, be entitled to enter upon and receive patents for a quantity of public lands not exceeding one hundred and sixty acres, or one quarter section, to be taken in compact form, according to legal subdivisions, including the alternate reserved sections of public lands along the line of any railroad or other public work not otherwise reserved or appropriated, and other lands subject to entry under the homestead laws of the United States; but such homestead settler shall be allowed six months after locating his homestead and filing his declaratory statement within which to make his entry and commence his settlement and improvement. This section was expressly amended and re- enacted to read as above by act of March 1, 1901 (31 Stat., 847). By act of February 25, 1919 (40 Stat., 1161), it was provided "That subject to the condi- tions therein expressed, as to length of service and honorable discharge, the pro- visions of sections twenty-three hundred and four and twenty-three hundred and five, Revised Statutes of the United States, shall be applicable in all cases of military and naval service rendered in connection with the Mexican border operations or during the war with Germany and its allies as defined by public resolution numbered thirty-two, approved August twenty-ninth, nineteen hundred and sixteen (Thirty- ninth Statutes at Large, page six hundred and seventy-one), and the Act approved July twenty-eighth, nineteen hundred and 1084 seventeen (Fortieth Statutes at Large, page two hundred and forty-eight. " (See note to sec. 2308, R. S.) By joint resolution of February 14, 1920 (41 Stat., 434-4.35), it was provided "That hereafter, for the period of two years fol- lovving the passage of this Act, bn the open- ing of public or Indian lands to entry, or the restoration to entry of public lands theretofore withdrawn from entry, such opening or restoration shall, in the order therefor, provide for a period of not less than sixty days before the general opening of such lands to disposal in which officers, soldiers, sailors, or marines who have served in the Army or Navy of the United States in the war with Germany and been honor- ably separated or discharged therefrom or placed in the Regular Army or Naval Reserve shall have a preferred right of Public Lands. Pt. 2. REVISED STATUTES. Sec. 2308. entry under the homestead or desert land laws, if qualified thereunder, except as against prior existing valid settlement rights and as against preference rights conferred by existing laws or equitable claims sub- ject to allowance and confirmation: Pro- vided, That the rights and benefits con- ferred by this Act shall not extend to any person who, having been drafted for serv- ice under the provisions of the Selective Service Act, shall have refused to render such service or to wear the uniform of such service of the United States. "Sec 2. That the Secretary of the Interior is hereby authorized to make any and all regulations necessary to carry into full force and effect the provisions hereof. " Sec. 2305. [Credit for time in military and naval service.] The time which the homestead settler has served in the Army, Navy, or Marine Corps shall be deducted from the time heretofore required to perfect title, or if discharged on account of wounds received or disability incurred in the line of duty, then the term of enlistment shall be deducted from the time heretofore required to per- fect title, without reference to the length of time he may have served; but no patent shall issue to any homestead settler who has not resided upon, improved, and cultivated his homestead for a period of at least one year after he shall have commenced his improvements: Provided, That in every case in which a settler on the public land of the United States under the homestead laws died while actually engaged in the Army, Navy, or Marine Corps of the United States as private soldier, officer, seamen, or marine, during the war with Spain or the Philippine insurrection, his widow, if unmarried, or in the case of her death or marriage, then his minor orphan children or his or their legal representatives, may proceed forthwith to make final proof upon the land so held by the de- ceased soldier and settler, and that the death of such soldier while so engaged in the service of the United States shall in the administration of the homestead laws, be construed to be equivalent to a performance of all requirements as to residence and cultivation for the full period of five years, and shall entitle his widow, if unmarried, or in case of her death or marriage, then his minor orphan children or his or their legal representatives, to make final proof upon and re- ceive Government patent for said land; and that upon proof produced to the officers of the proper local land office by the widow, if unmarried, or in case of her death or marriage, then his minor orphan children or his or their legal repre- sentatives, that the applicant for patent is the widow, if unmarried, or in case of her death or marriage, his orphan children or his or their legal representatives, and that such soldier, sailor, or marine died while in the service of the United States as hereinbefore described, the patent for such land shall issue. This section was expressly amended and re- See note to section 2304, Revised Statutes, enacted to read as above by act of March 1, 1901 (31 Stat., 847). Sec. 2308. [Service in Navy equivalent to residence.] Where a party at the date of his entry of a tract of land under the homestead laws, or subsequently thereto, was actually enlisted and employed in the Army or Navy of the United States, his services therein shall, in the administration of such homestead laws, be construed to be equivalent, to all intents and purposes, to a residence for the same length of time upon the tract so entered. And if his entry has been canceled by reason of his absence from such tract while in the military or naval service of the United States, and such tract has not been disposed of, his entry shall be restored; but if such tract has been disposed of, the party may enter another tract subject to entry under the homestead laws, :nd his right to a 1085 Sec. 2309. Pt. 2. REVISED STATUTES. Public Lands. patent therefor may be determined by the proofs touching his residence and cultivation of the first tract and liis absence therefrom in such service. — (8 June, 1872, c. 338, s. 4, v. 17, p. 333.) Act June 16, 1S98 (30 Stat., 473).— "That in every case in "which a settler on the public land of the Ignited States under the homestead laws enlists or is actually en«;aged in the Army, Navy, or Marine Corps of the United States as private soldier, officer, seaman, or marine, dur- ing the existing war with Spain, or during any other war in which the United States may be engaged, his services therein shall, in the administration of the homestead laws, be con- strued to be equivalent to all intents and pur- poses to residence and cultivation for the same length of time upon the tract entered or settled upon ; and hereafter no contest shall be initiated on the ground of abandonment, nor allegation of abandonment sustained against any such settler, unless it shall be alleged in the prelimi- nary affida\T.t or affidavits of contest, and proved at the hearing in cases hereafter initiated, that the settler's alleged absence from the land was not due to his emplovment in such service: Provided, That if such settler shall be dis- charged on account of wounds received or disability incurred in the line of duty, then the term of his enlistment shall be deducted from the required length of residence ^\'ithout refer- ence to the time of actual service: Provided Jurther, That no patent shall issue to any home- stead settler who has not resided upon, im- proved, and cultivated his homestead for a period of at least one year after he shall haAe commenced his improvements." Joint resolution, August 29, 1916 (39 Stat., G71), provided that the above-quoted act of June IG, 1898 "shall be applicable in all cases of military service rendered in connection with operations in Mexico, or along the borders thereof, or in mobilization camps elsewhere, whether such service be in the military or naval organization of the United States or the National Guard of the several States now or hereafter in the service of the United States." (See act Feb. 25, 1919, quoted under sec. 2304, R. S.) Act July 28, 1917, section 1 (40 Stat., 248).— "That any settler upon the public lands of the United States; or any entry man whose applica- tion has been allowed; or any person who has made application for public lands which there- after may be allowed imder the homestead laws, who, after such settlement, entry, or application, enlists or is actually engaged in the military or naval service of the United States as a private soldier, officer, seaman, marine, national guardsman, or member of any other organization for offense or defense author- ized by Congress during any war in which the United States may be engaged, shall, in the administration of the homestead laws, have his services therein construed to be equivalent to ■ all intents and purposes to residence and culti- Sec. 2309. [Entry by agent ; requirements.] Every soldier, sailor, marine, officer, or other person coming within the provisions of section twenty-three hundred and four, may, as well by an agent as in person, enter upon such home- vation for the same length of time upon the tract entered or settled upon; and hereafter no contest shall be initiated on the ground of abandonment, nor allegation of abandonment sustained against any such settler, entryman, or person unless it shall be alleged in the prelimi- nary affidavit or affidavits of contest and proved at the hearing in cases hereinafter initiated that the alleged absence from the land was not due to his employment in such military or naval service ; that if he shall be discharged on account of wounds received or disability incurred in the line of duty, then the term of his enlistment shall be deducted from the required length of residence, without reference to the time of actual service: Provided, That no patent shall issue to any homestead settler who has not resided upon, improved, and cultivated his homestead for a period of at least one yeai'." (See act Feb. 25, 1919, quoted under sec. 2304, R. S.) The same act, section 2, provides as follows: ' ' That any settler upon the public lands of the United States; or any entryman whose appli- cation has been allowed ; or any person who has made application for public lands which there- after may be allowed imder the homestead laws, who dies while actually engaged in the military or naval service of the United States as a private soldier, officer, seaman, marine, national guardsman, or member of any other organization for offense or defense authorized by Congress during any war in which the United States may be engaged, then his ^^•idow, if unmarried, or in case of her death or marriage, liis minor orphan children, or his or their legal representatives, may proceed forthwith to make final proof upon sucn entry or application there- after allowed, and shall be entitled to receive Government patent for such land ; and that the death of such soldier while so engaged in the service of the United States shall, in the ad- ministration of the homestead laws, be con- strued to be equivalent to a performance of all requirements as to residence and cultivation upon such homestead." (SeeactFeb. 25, 1919, quoted under sec. 2304, R. S.) Act September 29, 1919 (41 Stat., 288), made provision for granting leave of absence from their land to persons undergoing any course of vocational rehabilitation; such absence to be counted as constructive residence. Act March 1, 1921 (41 Stat., 1202), made pro- vision for issuing patents to settlers or entrymen who enlisted in the Army, Navy, or Marine Corps prior to November 11, 1918, having pre- viously made application, settlement, or entry, and who have been honorably discharged, but because of physical incapacities incurred in service are imaole to return to the land. 1086 Public Lands. PL 2. REVISED STATUTES. Sec. 2459. stead b}^ filing a declaratory statement, as in pre-emption cases; but such claimant in person shall T\dthin the time prescribed make his actual entry, commence settlements and improvements on the same, and thereafter fulfill all the requirements of law. — (8 June, 1872, c. 338, s. 5, v. 17, p. 334.) Act of August 7, 1911 (40 Stat., 250).— "That no desert-land entry made or held under the provisions of the Act of March tliird, ei2:hteen hundred and seventy-seven, as amended by the Act of March third, eighteen hundred and ninety-one, by an officer or enlisted man in the Army, Navy, Marine Corps, or Organized Mil- itia of the United States shall be subject to contest or cancellation for failure to make or expend the sum of $1 per acre per year in im- provements upon such claim, or to effect the reclamation thereof, during the period said en- tn,-man or his successor in interest is engaged in the military ser\'ice of the United States during the present war with Geimany, and until six months thereafter, and the time within which such entPk-man or claimant is required to make such expenditures and effect reclamation of the land shall be, exclusive of the time of his actual service in the -irmy, Navy, Marine Corps, or Sec. 2393. [Military or other reservations.] The provisions of this chapter shall not apply to military or other reservations heretofore made by the United States, nor to reservations for light-houses, custom-houses, mints, or such other public purposes as the interests of the United States may require, whether held under reservations thi'ough the Land-Office by title derived from the Crown of Spain, or other^^se. — (2 Mar., 1867, c. 177, v. 14, p. 541. 28 Feh., 1877, c. 74, V. 19, p. 264.) Title Organized Militia of the United States: Pro- vided, That said desert-land entry shall have been made by the said officer or enlisted man prior to his enlistment: Provided further, That each such entryman or claimant shall, within six months after the passage of this Act, or nithin six months after he is mustered into the service, file in the local land office of the dis- trict wherein his claim is situate a notice of his muster into the service of the United States and of his desire to hold said desert claim under this Act: Provided further. That the term 'en- listed man,' as used in this section shall include any person selected to serve in the military forces of the United States as pro\'ided by the Act entitled 'An Act authorizing the Presi- dent to increase temporarily the Militarj- Estab- lishment of the United States,' approved May eighteenth, nineteen hundred and seventeen." The words "this chapter" in the above section refer to chapter 8, "Reservations and sale of town sites on the public lands, XXXII, "The Public Lands." Sec. 2458. [Lands for supplying timber to the Navy.] The Secretary of the Navy is authorized, under the direction of the President, to cause such vacant and unappropriated lands of the United States as produce the live-oak and red-cedar timbers to be explored, and selection to be made of such tracts or por- tions thereof, where the principal growth is of either of such timbers, as in his judgment may be necessary to furnish for the Navy a sufficient supply of the same.— (1 Mar., 1817, c. 22, s. 1, v. 3, p. 347. 15 May, 1820, c. 136, v. 3, p. 607. 3 Mar., 1827, c. 94, s. 3, v. 4, p. 242.) See note to section 2459, Revised Statutes. Sec. 2459. [Selection of live-oak and red-cedar tracts.] The President is au- thorized to appoint surveyors of public lands, who shall perform the duties pre- scribed in the preceding section, and report to him the tracts bj' them selected, with the boundaries ascertained and accurately designated by actual survey or water-courses; and the tracts of land thus selected %vith the approbation of the President shall be reserved, unless otherwise directed by law, from any future sale of the pubhc lands, and be appropriated to the sole purpose of supplying timber for the Navy of the United States; but nothing in this section contained shall be construed to prejudice the prior rights of any person claiming lands, which may be reserved in the manner herein provided. — (1 Mar., 1817, c. 22, s. 1, V. 3, p. 347.) 1087 Sec. 2461. Pt. 2. REVISED STATUTES. Public Lands. Restoration to public domain of lands in Ala- bama and Afississippi. — "That the Secretary of the Nav}'' be, and he is hereby, authorized to cause to be certified to the Secretary of the In- terior, for restoration to the public domain, the whole or such portion or portions of the several tracts of land in the States of Alabama and Mississippi heretofore set apart and reserA'ed for naval uses as are no longer required for the purposes for which they were reserved, or for any purposes connected with the naval service; ancl upon such certification the tracts of land described therein shall be duly restored to and become a part of the public lands of the United States * * *: Provided, That persons who enter under the homestead law shall pay for such lands not less than the value heretofore or hereafter determined by appraisement, nor less than the price of the land at the time of the entry; and such payment may, at the option of the purchaser, be made in five equal install- ments, at times and at rates of interest to be fixed by the Secretary of the Interior: Pro- vided, That so much of the said lands as are situated on Back Bay^ near the city of Biloxi, in the State of Mississippi, shall be disposed of under the town-site law and not as agricultural lands." (Act Mar. 2, 1895, 28 Stat., 814.) Transfer to Interior Department of lands in Florida.— "ThAt the Secretary of the Navy be, and he is hereV)y, authorized to cause an exam- ination to be made of the condition of all lands in the State of Florida which have been set apart or reserved for naval purposes, excepting the reservation ujion which the nai-y-yard at Pensacola is located, and to ascertain whether or not such reserAcd lands are or will be of any value to the Government of the United States for naval purposes. "Sec. 2. That all of said lands which, in the judgment of the Secretary of the Navy, are no longer required for naval purposes shall, as soon as practicable, be certified by him to the Sec- retary of the Interior, and be suVjject to entry and sale in the same manner and under the same conditions as other public lands of the United States: Provided, That all persons who have, in good faith, made improvements on said reserved lands so certified at the time of the passage of this act, and who occupy the same, shall be entitled to purchase the part or parts so occupied or improved by them, not to exceed one hundred and sixty acres to any one person at one dollar and twenty-five cents per acre within such reasonable time as may be fixed by the Secretary of the Interior." CAct Mar. 3, 1879, 20 Stat.; 470, 471.) Sec. 2460 [Protection of timber in Florida.] The President is authorized to employ so much of the land and naval forces of the United States as may be necessary to effectually prevent the felling, cutting do-\vn, or other destruction of the timber of the United States in Florida, and to prevent the transportation or carrying away any such timber as may be already felled or cut down; and to take such other and further measures as may be deemed advisable for the pres- ervation of the timber of the United States in Florida. — (23 Feb., 1822, c. 9, V. 3, p. 651.) See section 49, Criminal Code, act March 4, 1909 (35 Stat., 1098). Sec. 2461 [Cutting or destroying timber reserved for Navy.] If any person shall cut, or cause or procure to be cut, or aid, assist, or be employed in cutting, or shall wantonly destroy, or cause or procure to be wantonly destroyed, or aid, assist, or be employed in wantonly destroying any live-oak or red-cedar trees, or other timber standing, growing, or being on any lands of the United States, which, in pursuance of any law passed, or hereafter to be passed, have been reserved or purchased for the use of the United States, for supplying or furnish- ing therefrom timber for the Navy of the United States ; or if any person shall remove, or cause or procure to be removed, or aid, or assist, or be employed in removing from any such lands which have been reserved or purchased, any live- oak or red-cedar trees, or other timber, unless duly authorized so to do, by order, in\ATiting, of a competent officer, and for the use of the Navy of the United States; or if any person shall cut, or cause or procure to be cut, or aid, or assist, or be employed in cutting any live-oak or red-cedar trees, or other timber on, or shall remove, or cause or procure to be removed, or aid, or assist, or be employed in removing any live-oak or red-cedar trees or other timber, from any other lands of the United States, acquired, or hereafter to be acquired, with intent to export, dispose of, use, or employ the same in any manner whatsoever, other than for 1088 Public Lands. Pt. 2. REVISED STATUTES. Sec. 2463. the use of the Navy of the United States; every such person shall pay a fine not less than triple the value of the trees or timber so cut, destroyed, or re- moved, and shall be imprisoned not exceeding twelve months. — (2 Mar., 1831, c. 66, s. 1, V. 4, p. 472.) States and Territories, and which, was ex- tended to other places bv act of Aiigiist 4, 1892 (27 Stat., 398). (Morgan v. U. S., 148 Fed. Rep., 189, 192.) See section 49, Criminal Code, act !March 4, 1909 (35 Stat., 1098); see also, act June 3, 1878, section 5 (20 Stat., 90), which expressly amended section 2461, revised Statutes as to prosecution for offenses in certain Sec. 2462. [Forfeitnre of vessels.] If the master, o%vTier, or consignee of any vessel shall knowingly take on board any timl)er cut on lands which have been reserved or purchased as in the preceding section prescribed, without proper authority, and for the use of the Navy of the United States; or shall take on board any live-oak or red-cedar timber cut on any other lands of the United States, with intent to transport the same to any port or place within the United States, or to export the same to any foreign country, the vessel on board of which the same shall be taken, transported, or seized, shall, with her tackle, apparel, and furniture, be wholly forfeited to the United States, and the captain or master of such vessel wherein the same was exported to any foreign country against the provisions of this section shall forfeit and pay to the United States a sum not exceeding one thousand dollars. — (2 Mar., 1831, c. 66, s. 2, V. 4, p. 472.) By act of April 30, 1878, section 2 (20 Stat., 46), the Territories of the United States, it shall it was provided that "if any timber cut on be liable to seiziu-e by United States au- the public lands shall be exported from thority wherever found." Sec. 2463. [Clearance of vessel ; timber cut by consent of Navy Depart- ment.] It shall be the duty of all collectors of the customs within -the States of Alabama, Mississippi, Louisiana, and Florida, before allowing a clearance to any vessel laden in whole or in part with live-oak timber, to ascertain satis- factorily that such timber was cut from private lands, or, if from public ones, by consent of the Navy Department. And it is also made the duty of all officers of the customs, and of the land officers mthin those States, to cause prosecu- tions to be seasonably instituted against all persons known to be guilty of depredations on, or injiu-ies to, the live oak growing on the public lands. — (2 Mar., 1833, c. 67, s. 3, v. 4, p. 647.) See notes to sections 2459-2462, Revised Statutes; and see section 4205, Revised Statutes, on the same subject. 1089 TITLE XXXIV. COLLECTION OF DUTIES UPON IMPORTS. Sec. 2687. [Apportionment of compensation for part of year's service.] Col- lectors and all other officers of the customs, serving for a less period than a year, shall not be paid for the entire year, but shall be allowed in no case a greater than a pro rata of the maximum compensation of such officers respectively for the time only which they actually serve as such collectors or officers, whether the same be under one or more appointments, or before or after confirmation. And no collector or other officer shall, in any case, receive for his services, either as fees, salary, fines, penalties, forfeitures, or otherwise, for the time he may be in service, beyond the maximum pro rata rate provided by law. And this section shall be applied and enforced in regard to all officers, agents, and employes of the United States whomsoever, as well those whose compensation is deter- mined by a commission on disbursements, not to exceed an annual maxi- mum, as those paid by salary or otherwise. — (11 Feb., 1846, c. 7, s. 1, v. 9, p. 3. 18 July, 1866, c. 201, s. 34, v. 14, p. 186.) United States recei\'in,g annual or monthly compensation. By act June 31, 1906, section 6 (34 Stat., 763), rules were prescribed for the computation of pay of persons in the service of the Sec. 2767. [Revenue-cutters to cooperate with Navy.] The revenue-cutters shall, whenever the President so directs, co-operate with the Navy, during which time they shall be under the direction of the Secretary of the Navy, and the expenses thereof shall be defrayed by the Navy Department. — (2 Mar. 1799, c. 22, s. 98, V. 1, p. 699.) By act of January 28, 1915 (38 Stat., 800), the Revenue-Cutter Service and the Life-Sav- ing Service were consolidated and reestab- lished as the ' ' Coast Guard, " and it was pro- vided that said organization "shall consti- tute a part of the military forces of theUnited States, ' ' and ' ' shall operate under the Treas- ury Department in time of peace and oper- ate as a part of the Navy, subject to the orders of the Secretary of the Navy, in time of war or when the President shall so direct." (See note to sec. 1492, R. S.) By act of August 29, 1916 (39 Stat., 600), it was provided that "hereafter whenever, in ac- cordance with law, the expenses of the Coast Guard are paid by the Navy Depart- ment, any naval appropriations from which payments are so made shall be re- imbursed from available appropriations made by Congress for the expenses of the CoastGuard." (Byactsof June 15, 1917,40 Stat., 212, and July 1, 1918, 40 Stat., 731, appropriations were made for the naval establishment, and it was provided that said appropriations "shall be available for similar expenses of the Coast Guard and Lighthouse Ser\'ice while cooperating with the Navy in so far as the regular ap- propriations for these ser\'ice3 are insuffi- cient therefor; and, when expenditures are thus made, naval appropriations need not be reimbursed from the appropriations for the Coast Guard and Lighthouse Service.") 1091 I TITLE XXXVI. DEBTS DUE BY OR TO THE UNITED STATES. Sec. 3477. [Assignment of claims against United States.] All transfers and assignments made of any claim upon the United ^States, or of any part or share thereof, or interest therein, whether absolute or conditional, and what- ever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and exe- cuted in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a war- rant for the payment thereof. Such transfers, assignments, and powers of attorney, must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowl- edgements of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgement, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same. — (29 July, 1846, c. 66, v. 9, p. 41. 26 Feb., 1853, c. 81, s. 1, V. 10, p. 170.) See sections 1430 and 1576, Revised Statutes, and note thereto, as to assignment of wages by enlisted men of the Navy, and allot- ments of pay by officers of the Navy. Sec. 3478. [Oath by persons prosecuting claims.]. Any person prosecuting claims, either as attorney or on his own account, before any of the Departments or Bureaus of the United States, shall be required to take the oath of allegiance, and to support the Constitution of the United States, as required of persons in the civil service.— (17 July, 1862, c. 205, s. 1, v. 12, p. 610.) See sections 190 and 1757, Re^'ised Statutes. Sec. 3479. [Who may administer oath.] The oath provided for in the pre- ceding section may be taken before any justice of the peace, notary public, or other person who is legally authorized to administer an oath in the State or district where the same may be administered. — (17 July, 1862, c. 205, s. 2, v. 12, p. 610. 1093 TITLE XL. THE PUBLIC MONEYS. Sec. 3614. Bond of special agents. 3617. Moneys to be deposited without deduc- tion. 3618. Proceeds of sales; miscellaneous receipts. 3619. Penalty for withholding money. 3620. Duty of disbursing officers. 3621. Time allowed in which to deposit money. 3622. Time allowed for rendering accounts. Sec. 3624. Suits to recover money from officers. 3639. Duties of custodians of public moneys. 3643. Entry of receipts, payments, and trans- fers. 3646. Lost or stolen checks; duplicates. 3647. Duplicate check; officer dead. 3648. Advances of public moneys prohibited. 3651. Exchange of funds restricted. 3652. Premium on sales of public securities. 3623. Distinct accounts required . Sec. 3614. [Bond of special agents.] Whenever it becomes necessary for the head of any Department or office to employ special agents, other than officers of the Army or Navy, who may be charged with the disbm-sement of public moneys, such agents shall, before entering upon duty, give bond in such form and with such security as the head of the Department or office employing them may approve. — (4 Aug., 1854, c. 242, s. 14, v. 10, p. 573.) See sections 1383 and 1550, Revised Statutes, and notes thereto. Sec. 3617. [Moneys to be deposited without deduction.] The gross amount of all moneys received from whatever source for the use of the United States, except as otherwise provided in the next section, shall be paid by the officer or agent receiving the same into the Treasury, at as early a day as practicable, wdthout any abatement or deduction on account of salary, fees, costs, charges, expenses, or claim of any description whatever. But nothing herein shall affect any provision relating to the revenues of the Post-Office Department.^ (3 Mar., 1849, c. 110, s. 1, v. 9, p. 398. 28 Sept., 1850, c. 78, s. 3, v. 9, p. 507.) See section 3619, Revised Statutes, as to penalty for violating this section. See sections 86-92, Criminal Code, act March 4, 1909 (35 Stat., 1105), and see section 1624, Revised Statutes, article 14, as to acts constituting embezzlement. Sec. 3618. [Proceeds of sales; miscellaneous receipts.] All proceeds of sales of old material, condemned stores, supplies, or other public property of any kind, except the proceeds of the sale or leasing of marine hospitals, or of the sales of revenue-cutters, or of the sales of commissary stores to the ofiicers and enlisted men of the Army, [or of materials, stores, or supplies sold to officers and soldiers of the Army] or of the sale of condemned Navy clothing, or of sales of materials, stores, or supplies to any exploring or surveying expedition authorized by law, shall be deposited and covered into the Treasury as miscel- laneous receipts, on account of ''proceeds of Government property," and shall not be withdrawn or applied, except in consequence of a subsequent appro- priation made by law. — (3 Mar., 1847, c. 48, s. 1, v. 9, p. 171. 20 April, 1866, c. 63, ss. 1, 2, V. 14, p. 40. 28 July, 1866, c. 299, s. 25, v. 14, p. 336. 3 May 1872, c. 140, s. 5, V. 17, p. 83. 8 June, 1872, c. 348, v. 17, p. 337. 22 June, 1874, c. 413, V. 18, J). 200. 27 Feb., 1877, c. 69, v. 19, p. 249.) 1095 Sec. 3621. PL 2. REVISED STATUTES. Public Moneys. The words in brackets wore inserted in this section (as reproduced above from the second edition of the Revised Statutes) by act of I'Y-bruary 27, 1877 (19 Stat., 249). Act June 8, 1890 (29 Stat., 268), provided that '■from the proceeds of sales of old material, condemned stores, supplies, or other pub- lic property of any kind, before being deposited into the Treasury, either as miscellaneous receipts on account of 'proceeds of Government property' or to the credit of the appropriations to which such proceeds are by law authorized to be made, there may be paid the expenses of such sales, as approved by the accounting officers of the Treasury, so as to require Sec. 3619. [Penalty for withholding money.] Every officer or agent who neglects or refuses to comply with the provisions of section thirty-six hundred and seventeen shall be subject to be removed from office, and to forfeit to the United States any share or part of the moneys withheld, to which he might otherwise be entitled.— (18 July, 1866, c. 201, s. 40, v. 14, p. 187.) only the net proceeds of such sales to be deposited into the Treasury, either as miscellaneous receipts or to the credit of such appropriations, as the case may be." See section 433, Revised Statutes, and note thereto, as to proceeds of sales of publica- tions of the Hydrographic Office, Navy Department. See sections 418, 1530, and 1541, Revised Statutes, and laws cited thereunder, as to sales of vessels and old materials belonging to the Navv. See act of March 4, 1917 (39 Stat., 1175), quoted under section 4750, Revised Statutes, as to proceeds of sales in certain cases being credited to the Naval Pension Fund. See sections 86-92, Criminal Code, act March 4, 1909 (35 Stat., 1105), and see section 1624, Revised Statutes, article 14, as to acts con- stituting embezzlement. Sec. 3620. [Duty of disbursing officers.] It shall be the duty of every dis- bursing officer having any public money intrusted to him for disbursement, to deposit the same with the Treasurer or some one of the assistant treasurers of the United States, and to draw for the same only as it may be required for pay- ments to be made by him in pursuance of law [and draw for the same only in favor of the persons to whom paj^ment is made;] and all transfers from the Treasurer of the United States to a disbursing officer shall be by draft or war- rant on the Treasury or an assistant treasurer of the United States. In places, however, where there is no treasurer or assistant treasurer, the Secretary of the Treasury may, when he deems it essential to the public interest, specially authorize in writing the deposit of such public money in any other public depository, or, in writing, authorize the same to be kept in any other manner, and under such rules and regulations as he may deem most safe and effectual to facilitate the payments to public creditors. — (14 June, 1866, c. 122, s. 1, v. 14, p. 64. 27 Feh., 1877, c. 69, v. 19, p. 249.) The words in brackets were inserted in this section (as reproduced above from the second edition of the Revised Statutes) by act of February 27, 1877 (19 Stat., 249). See sections 86-92, Criminal Code, act March 4, 1909 (35 Stat., 1105), and see section 1624, Revised Statutes, article 14, as to acts constituting embezzlement. Sec. 3621. [Time allowed in which to deposit money.] Every person who shall have moneys of the United States in his hands or possession, and dis- bursing officers having moneys in their possession not required for current expenditure, shall pay the same to the Treasurer, an Assistant Treasurer, or some public depositary of the United States, without delay, and in all cases within thirty days of their receipt. And the Treasurer, the Assistant Treasurer, or the public depositary shall issue duplicate receipts for the moneys so paid, transmitting forthwith the original to the Secretary of the Treasury, and deliv- ering the duplicate to the depositor: Provided, That postal revenues and debts due to the Post-Office Department shall be paid into the Treasury in the man- ner now required by law. 1096 PubUc Moneys. Pt. 2. REVISED STATUTES. Sec. 3624. This section was exjiressly amended and reenacted to read as above bv the act of May 28, 1896, section 5 (29 Stat., 179.) Penalty for failure to deposit money, see sec- tions 86-92, Criminal Code, act March 4, 1909 (.35 Stat., 1105), and section 1624, Re\ised Statutes, article 14, as to acta con?titutin as to hours of labor and contract pro- 1912 (37 Stat., 137); March 3, 1913 (37 Stat., 726); and March 4, i917 (39 Stat., visions relating thereto. Sec. 3739. [Members of Congress not to be interested in contracts, pealed.] Re- This section provided as follows: "Sec. 3739. No member of or Delegate to Congress shall directly or indirectly, himself, or by any other person in trust for him, or for his use or benefit, or on his account, undertake, ex- ecute, hold, or enjoy, in whole or in part, any contract or agreement made or entered into in behalf of the United States, by any officer or person authorized to make contracts on behalf of the United States. Every person who vio- lates this section shall be deemed guilty of a misdemeanor, and shall be fined three thousand dollars. All contracts or agreements made in violation of this section shall be void; and whenever any sum of money is advanced on the part of the United States, in consideration of any such contract or agreement, it shall be forthwith repaid; and in case of refusal or delay to repay the same, when demanded, by the proper officer of the Department under whose authority such contract or agreement shall have been made or entered into, every person so refusing or delaying, together with his surety or sureties, shall be forthwith prosecuted at law for the recovery of any such sum of money so advanced."— (21 Apr., 1868, c. 48, s. 1, v. 2, p. 484. 22 June, 1874, c. 389, v. 18, p. 177.) _ It was expressly repealed by Criminal Code, Act March 4, 1909, section 341 (35 Stat., 1153), and similar provisions were embodied in said art, section 114 (35 Stat., 1109). 1117 Sec. 3744. Ft. 2. REVISEI) STATUTES. Contracts. Sec. 3740. [What interest Members of Congress may have. Repealed.] same arc ready for delivery, and pa>Tnent therefor is made, at the time of making or en- tering into the contract or agreement." — (21 Apr., 1808, c. 48, s. 2, v. 2, p. 484. 27 Feb., 1877, c. 69, r. 19, p. 249.) It was expressly repealed bv Criminal Code, act I\Iarch 4, 1909, section 341 (35 Stat., 1153), and similar pro^'isions were embodied in said act, section 116 (35 Stat., 1109). Tliis section provided as foUovrs: "Sec. 3740. Notliing contained in the pre- ceding section shall extend, or be construed to extend, to any contract or agreement, made or entered into, or accepted, by any incorporated conii)any, where such contract or agreement is made for the general beneiit of such incorpora- tion or company; nor to the purchase or sale of bills of exchange or other property by any member of [or delegate toj Congress, where the Sec. 3741. [Stipulation that no Member of Congress has an interest.] In every such contract or agreement to be made or entered into, or accepted by or on behalf of the United States, there shall be inserted an express condition that no member of [or delegate to] Congress shall be admitted to any share or part of such contract or agreement, or to any benefit to arise thereupon. — (21 Apr., 1808, c. 48, s. 3, v. 2, p. 484. 27 Feh., 1877, c. 69, v. 19, p. 249.) This section is reproduced above as it appears in the second edition of the Revised Statutes. The words inclosed in brackets were inserted in the original section by act of February 27, 1877 (19 Stat., 249). Sec. 3742. [Officer making contract with Member of Congress ; Repealed.] penalty. three thousand dollars.'" — (21 Apr., 1808, c. 48, s. 4, v. 2, p. 484. 27 Feb., 1877, c. 69, v. 19, ;). 249.) It was expressly repealed bv Criminal Code, act IMarch 4, 1909, section 341 (35 Stat., 1153), and similar pro\-isions were embodied in said act, section 115 (35 Stat., 1109). This section provided as follows: "Sec. 3742. Every officer who, on Ijehalf of the United States, directly or indirectly makes or enters into any contract, bargain, or agi'ee- ment in \vriting or otherwise, other than such as are hereinbefore excepted, with any member of [or delegate to] Congress, shall be deemed guilty of a misdemeanor, and shall be fined Sec. 3743. [Contracts to be filed with Auditors.] All contracts to be made, by virtue of any law, and requiring the advance of money, or in any manner comiected with the settlement of public accounts, shall be deposited promptly in the offices of the Auditors of the Treasury, according to the nature of the contracts: Provided, That this section shall not apply to the existing laws in regard to the contingent funds of Congress. This section was expressly amended and re- Secretary of the Na\'y is charged ^\'ith the cus- enacted to read as above by act of July tody of all records appertaining to the 31, 1894, section 18 (28 Stat., 210j. _ Na\y Department by section 418, Re\ised Copies of contracts are required to be filed in Statutes, the Returns Office of the Interior Depart- ment by sections 512-515, and 3744-3747 Re\-ised Statutes. Sec. 3744. [Contracts to be in writing; copy filed in Returns Office.] It shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior, to cause and require every contract made by them severally on behalf of the Government, or by their officers under them appointed to make such contracts, to be reduced to writing, and signed by the contracting parties with their names at the end thereof; a copy of which shall be filed by the officer making and signing the contract in the Returns Office of the Depart- ment of the Interior, as soon after the contract is made as possible, and within thirty days, together with all bids, offers, and proposals to him made by persons to obtain the same, and with a copy of any advertisement he may have pub- lished inviting bids, offers, or proposals for the same. AU the copies and papers in relation to each contract shall be attached together by a ribbon and seal, and 1118 Contracts. PL 2. REVISED STATUTES. Sec. 3747. marked by numbers in regular order, according to the number of papers com- posing the whole return.-— (2 June, 1862, c. 93, s. 1, v. 12, p. 411. Lindsley v. U. S., 4 C. Cls., 359; Burchiel v. U. S., 4 C. Cls., 549; Bernheimer v. U. S., 5 C. Cls., 65; Salamon v. U. S., 19 Wall.. 17: Jones's Case, 11 C. Cls., 733.) This section was expressly amended by the urgent deficiency appropriation act of June 15, 1917 (40'Stat., 198), by adding at the end thereof the loIIowinG;: "Proiukd, That the Secretary of War or the Secretary of the Navy may extend the time for filing such contracts in the returns office of the See Department of the Interior to ninety days •whene^'er in their opinion it woukl be to the interest of the United States to follow such a course." sections 512-515, Revised Statutes, and notes thereto, as to the Returns Office. Sec. 3745. [Oath to copy of contract.] It shall be the further duty of the officer, before making his return, according to the preceding section, to afhx to the same his affidavit in the following form, sworn to before some magistrate having authority to administer oaths: "I do solemnly swear (or affirm) that the copy of contract hereto annexed is an exact copy of a contract made by mc pereonally with ; that I made the same fairly without any benefit or advantage to myself, or allowing any such benefit or advantage corruptly to the said or any other person; and that the papers accompanying include all those relating to the said contract, as required by the statute in such case made and provided." — (Ibid., s. 2.) See sections 512-515, Revised Statutes, and notes thereto. Sec. 3746. [Penalty for omitting returns.] Every ollicer who makes any contract, and fails or neglects to make return of the same, according to the pro- visions of the two preceding sections, unless from unavoidable accident or causes not within his control, shall be deemed guilt}' of a misdemeanor, and shaU be fined not less than one hundred dollars nor more tlian fne hundred, and im- prisoned not more than six months. — (Ibid., s. 3.) See sections 512-515, Revised Statutes, and notes thereto. Sec. 3747. [Instructions to officers naaking contracts.] It shall be the duty of the Secretary of War, of the Secretary of the Xavy, and of the Secretary of the Interior to furnish every officer appointed by them with authority to make contracts on behalf of the Government with a printed letter of instructions, setting forth the duties of such officer, under the two preceding sections, and also to furnish therewith forms, printed in blank, of contracts to be made, and the affidavit of returns required to be ailixed thereto, so that all the instruments may be as nearly uniform as possible. — -(Ibid., s. 5.) 1119 TITLE XLIV. THE PUBLIC PROPERTY. Sec. 3748. [TJniforms and equipments, not to be sold, etc.] The clothes, arms, military outfits, and accouterments furnished by the United States to any soldier shall not be sold, bartered, exchanged, pledged, loaned, or given away; and no person not a soldier, or duly authorized ofTicer of the United States, who has possession of any such clothes, arms, military outfits, or accou- terments, so furnished, and which have been the subjects of any such sale, barter, exchange, pledge, loan, or gift, shall have any right, title, or interest therein; but the same may be seized and taken wherever found by any officer of the United States, civil or military, and shall thereupon be delivered to any quartermaster, or other officer authorized to receive the same. The possession of any such clothes, arms, military outfits, or accouterments by any person not a soldier or officer of the United States shall be presumptive evidence of such a sale, barter, exchange, pledge, loan, or gift. — (3 Mar., 1863, c. 75, s. 23, v. 12, p. 735.) See Criminal Code, act March 4, 1909, section 35 (35 Stat., 1095), as amended by act October 23, 1918 (40 Stat., 1016). Sec. 3752. [Purchase of lands; releases to United States.] Whenever any lands have been or shall be conveyed to individuals or officers, for the use or benefit of the United States, the President is authorized to obtain from such person a release of his interest to the United wStates. — (28 April, 1828, c. 41, s. 3, V. 4, p. 264.) See section 355, Revised Statutes, and note thereto. 1121 TITLE XLV. PUBLIC PEINTING, ADVEETISEMENTS, AND PUBLIC DOCUMENTS. Sec. 3826. [Advertisements in Washington, D. C] All advertisements, notices, and proposals for contracts for all the Executive Departments of the Government, and the laws passed by Congress and executive proclamations and treaties to be published in the District of Columbia, Maryland, and Virginia, shall hereafter be advertised by publication in the three daily papers published in the District of Columbia having the largest circulation, one of wliich shall be selected by the Clerk of the House of Representatives, and in no others. The charges for such publications shall not be higher than such as are paid by individuals for advertising in said papers, and the same publications shall be made in each of the said papers equally as to frequency: Provided, That no advertisement to any State, district, or Territory, other than the District of Columbia, Maryland, or Virginia, shall be published in the papers designated, unless at the direction first made of the proper head of a Department: And provided further, That this section shall not be construed to allow a greater com- pensation for the publication of the laws passed by Congress and executive proclamations and treaties in the papers of the District of Columbia than is provided by law for such publications in other papers. — (2 Mar., 1867, c. 167, s. 10, V. 14, p. 467. 29 Mar., 1867, c. 13, s. 2, v. 15, p. 7. 20 July, 1868, c. 176, ss. 2, 4, V. 15, p. 110. 18 Feb., 1875, c. 18, v. 18, p. 316. Repealed in part by Stat. 3 Mar., 1875, c. 128, v. 18, p. 342. 31 July, 1876, c. 246, v. 19, p. 105.) "So much of section three thousand eie:ht hun- dred and twenty-six of the Ile\'ised Stat- utes of the United States as refers to the publication of advertisements in newspa- pers be, and thesameisherebv, repealed.'' (Act Mar. 3, 1875, 18 Stat., 342.) "After the fourth day of March, eicrhteen hun- dred and seventy-five, the publication of the laws in newspapers shall cease." ' Sec. 79, R. S., as amended by act Feb. IS, 1875, 18 Stat., 317.) "That all executive proclamations, & all trea- ties required by law to be published, shall be published in only one newspaper, the same to be printed and published in the District of Columbia and to )>e designated by the Secretary of State and in no case of advertisement for contracts for the pub- lic ser\ace shall the same be published in any newspaper published and printed in the District of Columbia.unless the supplies or labor covered by such advertisements are to be furnished or performed in said District of Columbia." (Sundrv ci\dl act, July 31, 1876, 19 Stat., 105.) "Hereafter all advertisements, notices, propos- als for contracts, and all forms of advertis- ing required by law for the several depart- ments of the government may be paid for at a price not to exceed the commercial rates charged to private indi^dduals, with the usual discounts; siich rates to be ascer- tained from sworn statements to be fur- nished by the proprietors or publishers of the newspapers proposing so to advertise: Provided, That * * * the heads of the several departments may secure lower terms at special rates whenever the public inter- est requires it." ("Act .June 20, 1878, 20 Stat., 216.) "All advertising required by existing laws to be done in the District of Columbia by any of the departments of the government shall be given to one daily and one weekly news- paper of each of the two principal political parties and to one daily and one weekly neutral newspaper: Provided, That the rates of compensation for such service shall in no case exceed the regular commercial rate of the newspapers selected; nor shall any advertisement be paid for unless pub- lished in accordance with section thirty- eight hundred and twenty-eight of the Re- \-ised Statutes." (Act Jan. ""21, 1881, 21 Stat., 317.) See sections 3709 3718, 3721, and 3828, Re\ised Statutes. 1123 Sec. 3828. Pt. 2. REVISED STATUTES. Advertisements. Sec. 3828. [Newspaper advertising; written authority required.] No ad- vertisement, notice, or proposal for any Executive Department of the Govern- ment, or for any Bureau thereof, or for any office therewith connected, shall be published in any newspaper whatever, except in pursuance of a written authority for such publication from the head of such Department; and no bill for any advertising, or publication, shall be paid, unless there be presented, with such bill, a copy of such WTitten authority. — (15 July, 1870, c. 292, s. 2, V. 16, p. 308.) See sections 3709, 3718, 3721, and 3826, Revised Statutes. 1124 TITLE XLVIIL COMMERCE AND NAVIGATION. Sec. 4205. Clearance of vessels laden with live-oak. 4233. Rules for preventing collisions on the Red River of the North, and rivers empty- ing into the Gulf of Mexico, and their tributaries. 4237. No discrimination in pilotage rates. Sec. 4293. Public vessels to suppress piracy. 4294. Seizure of piratical vessels. 4296. Condemnation of piratical vessels. 4297. Seizure of vessels fitted out for piracy. 4298. Whal vessels authorized to seize pirates. Sec. 4205. [Clearance of vessels laden with live-oak.] Collectors of the col- lection-districts within the States of Florida, Alabama, Mississippi, and Louis- iana, before allowing a clearance to any vessel laden in whole or in part with live-oak timber, shall ascertain satisfactorily that such timber was cut from private lands, or, if from public lands, by consent of the Department of the Navy.— (3 Mar., 1833, c. 67, s. 3, v. 4, p. 647.) Sec. 4233. [Rules for preventing- collisions on the Red River of the North and rivers emptying into the Gulf of Mexico, and their tributaries.] The following rules for preventing collisions on the water, shall be followed in the navigation of vessels of the Navy and of the mercantile marine of the L^nited States: This section has been superseded and repealed by subsequent enactments, except in so far as concerns navigation on the Red River of the North and rivers emptying into the Gulf of Mexico, and their tributaries. (See also sec. 4412, R. S., and note thereto, as to executive regulations applicable to the waters mentioned.) The laws prescribing rules for preventing collisions at sea and upon the Great Lakes, harbors, rivers, and inland waters of the United States, except the Red River of the North and rivers emp- tying into the Gulf of Mexico and their tributaries are cited below, as follows: Rules for preventing collisions at sea. — See act of August 19, 1890 (26 Stat., 320), providing that the regulations therein prescribed ' ' for preventing collisions at sea shall be fol- lowed by all pubUc and private vessels of the United States upon the high seas and in all waters connected therewith, navi- gable by seagoing vessels." Section 2 of said act (26 Stat., 328) provided that "all laws or parts of laws inconsistent with the foregoing regulations for preventing col- lisions at sea for the navigation of all pub- lic and private vessels of the United States upon the high seas, and in all waters con- nected therewith navigable by sea-going vessels, are hereby repealed . ' ' Rules for the Great Lakes and their connecting and tributary waters as far east as Mont- real.— See act of February 8, 1895 (28 Stat., 645), providing that the rules therein pre- scribed for preventing collisions "shall be followed in the navigation of all public and private vessels of the United States upon the Great Lakes and their connecting and tributary waters as far east as Montreal." Section 4 of said act (,28 Stat., 650) provided "that all laws or parts of laws, so far as ap- plicable to the navigation of the Great Lakes and their connecting and tributary waters as far east as Montreal, inconsistent with the foregoing rules are hereby re- pealed." Rules for harbors, rivers, and inland waters of the L^nited States, except the Great Lakes and their connecting and tributary waters as far east as Montreal, and the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries. — See act of June 7, 1897 (30 Stat., 96), providing that the regulations therein prescribed for preventing collision "shall be followed by all vessels navigating all harbors, rivers, and inland waters of the United States, except the Great Lakes and their connect- ing and tributary waters as far east as Mont- real and the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries, and are hereby de- clared special rules duly made by local authority." Section 5 of said act (.30 Stat., 103) provided that section 4233, and cer- tain other sections of the Revised Statutes and certain laws subsequent to the Re- vised Statutes, and all amendments tliereto, "are hereby repealed so far as the harbors, rivers, and inland waters aforesaid (except the Great Lakes and their connecting and tributary waters as far east as Montreal and 1125 Sec. 4233. PL 2. REVISED STATUTES. Navigation. the Red River of the North and rivers Rules for regattas. — Regulations to promote the emptying into the Gulf of Me.xico, and safety of life on navigable waters during their tributaries) are concerned." regattas or marine parades are made and Rules for motor boats. — By act of June 9, 1910 i enforced pursuant to act April 28, 1908 (3G Stat., 4()2), special rules were pre- (35 Stat., 69) scribed for motor boats on the navigable waters of the United States. See act of P'ebniary 19, 1895 (28 Stat., 672), and note thereto; see also acts of Septem- ber 7, 1916, section 12 (39 Stat., 732), and July 9, 1918, (40 Stat., 893). STEAM AND SAIL VESSELS. Rule 1. Every steam vessel which is under sail and n(^t under steam shall be considered a sail vessel; and every steam vessel which is under steam, whether under sail or not, shall be considered a steam vessel. The words steam vessel shall include any vessel propelled by machinery. This rule was expressly reenacted to read as above by act of March 3, 1905 (33 Stat., 1032). LIGHTS. Rule two. The lights mentioned in the following rules, and no others, shall be carried in all weathers, between sunset and sunrise. Rule three. All ocean-going steamers, and steamers carrying sail, shall, when under way, carrj^ — (A) At the foremast head, a bright white light, of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least five miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of twenty points of the compass, and so fixed as to throw the light ten points on each side of the vessel, namely, from right ahead to two points abaft the beam on either side. (B) On the starboard side, a green light, of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of ten points of the compass, and so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side. (C) On the port side, a red light, of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of ten points of the compass, and so fixed as to throw the light from right ahead to two points abaft the beam on the port side. The green and red lights shall be fitted with inboard screens, projecting at least three feet forward from the lights, so as to prevent them from being seen across the bow. Rule four. Steam-vessels, when towing other vessels, shall carry two })right white mast-head lights vertically, in addition to their side-lights, so as to distinguish them from other steam-vessels. Each of these mast-head lights shall be of the same character and construction as the mast-head lights prescribed by Rule three. Rule five. All steam-vessels, other than ocean-going steamers and steamers carrying sail, shall, when under way, carry on the starboard and port sides lights of the same character and construction and in the same position as are prescribed for side-lights by Rule three, except in the case provided in Rule six. Rule six. River-steamers navigating waters flowing into the Gulf of Mexico, and their tributaries, shall carry the following lights, namely: One 1126 Navigation. Pt. 2. REVISED STATUTES. Sec. 4233. red light on the outboard side of the port smoke-pipe, and one green hght on the outboard si^e of the starboard smoke-pipe. Such Kghts shall show both forward and abeam. on their respective sides. Rule seven. All coasting steam-vessels, and steam-vessels other than ferry-boats and vessels otherwise expressly provided for, navigating the bays, lakes, rivers, or other inland waters of the United States, except those men- tioned in Rule six, shall carry the red and green lights, as prescribed for ocean- going steamers; and, in addition thereto, a central range of two white lights; the after-light being carried at an elevation of at least fifteen feet above the light at the head of the vessel. The head-light shall be so constructed as to show a good light through twenty points of the compass, namely : from right ahead to two points abaft the beam on either side of the vessel; and the after-light so as to show all around the horizon. The lights for ferryboats, barges and canal boats when in tow of steam vessels, shall be regulated by such rules as the Board of Supervising Inspectors of Steam Vessels shall prescribe. This rule was expressly amended to read as above by act of March 3, 1893 (27 Stat., 557). Rule eight. Sail-vessels, under way or being towed, shall carry the same lights as steam-vessels under way, with the exception of the white mast-head lights, which they shall never carry. Rule nine. Whenever, as in case of small vessels during bad weather, the green and red lights cannot be fixed, these lights shall be kept on deck, on their respective sides of the vessel, ready for instant exhibition, and shall, on the approach of or to other vessels, be exliibited on their respective sides in sufficient time to prevent collision, in such manner as to make them most visible, and so that the green light shall not be seen on the port side, nor the red light on the starboard side. To make the use of these portable lights more certain and easy, they shall each be painted outside with the color of the light they respectively contain, and shall be provided with suitable screens. Rule ten. All vessels, whether steam-vessels or sail-vessels, when at anchor in roadsteads or fairways, shall, between sunset and sunrise, exhibit where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a globular lantern of eight inches in diameter, and so constructed as to show a clear, uniform, and unbroken light, visible all around the horizon, and at a distance of at least one mile. Rule eleven. Sailing pilot-vessels shall not carry the lights required for other sailing-vessels, but shall carry a white light at the mast-head, visible all around the horizon, and shall also exhibit a flare-up light every fifteen minutes. Steam pilot boats shall, in addition to the masthead light and green and red side lights required for ocean steam vessels, carry a red light hung ver- tically from thi'ee to five feet above the foremast headlight, for the purpose of distinguishing such steam pilot boats from other steam vessels. This rule was expre.ssly amended to read as above by act of March 3, 1897, section 5 (29 Stat., 689), which added thereto the second paragraph as above set forth. Rule twelve. Coal-boats, trading-boats, produce-boats, canal-boats, oyster- boats, fishing-boats, rafts, or other water-craft, navigating any bay, harbor, 1127 Sec. 4233. Pt. 2. REVISED STATUTES. Navigation. or river, by hand-power, horse-power, sail, or by the current of the river, or which shall be anchored or moored in or near the channel or fainvay of any bay, harbor, or river, shall carry one or more good white lights, which shall be placed in such manner as shall be prescribed by the board of supervising inspectors of steam- vessels. Rule thirteen. Open boats shall not be required to carry the side-lights required for other vessels, but shall, if they do not carry such lights, carry a lantern having a green slide on one side and a red slide on the other side; and, on the approach of or to other vessels, such lantern shall be exhibited in suffi- cient time to prevent collision, and in such a manner that the green light shall not be seen on the port side, nor the red light on the starboard side. Open boats, when at anchor or stationary, shall exhibit a bright white light. They shall not, however, be prevented from using a fiare-up, in addition, if con- sidered expedient. Rule fourteen. The exhibition of any light on board of a vessel of war of the United States may be suspended whenever, in the opinion of the Secretary of the Navy, the commander in chief of a squadron, or the commander of a vessel acting singly, the special character of the service may require it. The exhibition of any light on board of a revenue cutter of the United States may be suspended whenever, in the opinion of the commander of the vessel, the special character of the service may require it. This rule was expressly reenacted to read as above by act of March 3, 1897, section 12 (29 Stat., 690). FOG SIGNALS. Rule fifteen, (a) Whenever there is a fog, or thick weather, whether by day or night, fog signals shall be used as follows: Steam vessels under way shall sound a steam w^histle placed before the funnel, not less than eight feet from the deck, at intervals of not more than one minute. Steam vessels, when towing, shall sound three blasts of quick succession repeated at intervals of not more than one minute, (b) Sail vessels under way shall sound a foghorn at intervals of not more than one minute, (c) Steam vessels and sail vessels, when not under way, shall sound a bell at intervals of not more than two min- utes. (D) Coal-boats, trading-boats, produce-boats, canal-boats, oyster-boats, fishing-boats, rafts, or other water-craft, navigating any bay, harbor, or river, by hand-power, horse-power, sail, or by the current of the river, or anchored or moored in or near the channel or fairway of any bay, harbor, or river, and not in any port, shall sound a fog-horn, or equivalent signal, which shall make a sound equal to a steam-whistle, at intervals of not more than two minutes. This section was expressly amended by act of March 3, 1897, section 12 (29 Stat., 690\ which reenacted clauses (a), (b), and (c), to read as above, and made no modification in clause (D). STEERING AND SAILING RULES. Rule 16. Risk of collision can, when circumstances permit, be ascertained by carefully watching the compass bearing of an approaching vessel. If the bearing does not appreciably change such risk should be deemed to exist. This section was expressly reenacted to read as above by act of March 3, 1897, section 12 (29 Stat., 690). 1128 Navigation. PL 2. REVISED STATUTES. Sec. 4233. Rule 17. When two sailing vessels are approaching one another, so as to involve risk of collision, one of them shall keep out of the way of the other, as follows, namely: (a) A vessel which is running free shall keep out of the way of a vessel which is close-hauled. (b) A vessel which is close-hauled on the port tack shall keep out of the way of a vessel which is close-hauled on the starboard tack. (c) When both are running free, with the wind on different sides, the vessel which has the wind on the port side shall keep out of the way of the other. (d) When both vessels are running free, with the wind on the same side, the vessel which is to the windward shall keep out of the way of the vessel which is to the leeward. (e) A vessel which has the wind aft shall keep out of the way of the other vessel. This section -was expressly reenacted to read as above by act of March 3, 1897, section 12 (29 Stat., 690). Rule eighteen. If two vessels under steam are meeting end on, or nearly end on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other. Rule nineteen. If two vessels under steam are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other. Rule twenty. If two vessels, one of which is a sail-vessel and the other a steam-vessel, are proceeding in such directions as to involve risk of collision, the steam-vessel shall keep out of the way of the sail-vessel. Rule twenty-one. Every steam-vessel, when approaching another vessel, so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse; and every steam-vessel shall, when in a fog, go at a moderate speed. Rule twenty-two. Every vessel overtaking any other vessel shall keep out of the way of the last-mentioned vessel. Rule twenty-three. Where, by Rules seventeen, nineteen, twenty, and twenty- two, one of two vessels shall keep, out of the way, the other shall keep her course, subject to the qualifications of Rule twenty-four. Rule twenty-four. In construing and obeying these rules, due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case rendering a departure from them neces- sary in order to avoid immediate danger. Rule twenty-five. A sail vessel which is being overtaken by another vessel during the night shall show from her stern to such last-mentioned vessel a torch or a flare-up light. This rule was added to section 42.33, Revised Statutes, as Rule twenty-five thereof, by act of March 3, 1897, section 13 (29 Stat., 690). Rule twenty-six. Nothing in these rules shall exonerate any ship, or the owner, or master, or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neg- 1129 Sec. 4296. Pt. 2. REVISED STATUTES. Navigation. lect of any precaution which may be required by the ordinary practice of seamen or by the special circumstances of the case. This rule was added to section 4233, Revised Statutes, as Rule twenty-six thereof, by act of March 3, 1S97, section 13 (29 Stat., 090). Sec. 4237. [No discrimination in pilotage rates.] No regulations or provi- sions shall be adopted by any State which shall make any discrimination in the rate of pilotage or half-pilotage between vessels sailing between the ports of one State and vessels sailing between the ports of difl'erent States, or any discrimination against vessels propelled in whole or in part by steam, or against national vessels of the United States; and all existing regulations or pro- visions making any such discrimination are annulled and abrogated. — (13 July, 1866, c. 177, v. 14, p. 93.) See note to Constitution, Article I, section 8, clause 13, under "11. Freedom from State interference," subheading, " Exemption from State laws requiring employment of pilots." Sec. 4293. [Public vessels to suppress piracy.] The President is authorized to employ so many of the public armed vessels as in his judgment the service may require, with suitable instructions to the commanders thereof, in pro- tecting the merchant-vessels of the United States and their crews from piratical aggressions and depredations. — (3 Mar., 1819, c. 77, s. 1, v. 3, p. 510. 30 Jan., 1823, c. 7, V. 3, p. 721.) Sec. 4294. [Seizure of piratical vessels.] The President is authorized to instruct the commanders of the public armed vessels of the United States to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat the, crew whereof shall be armed, and which shall have attempted or committed any pu-atical aggression, search, restraint, depredation, or seizure, upon any vessel of the United States, or of the citizens thereof, or upon any other vessel; and also to retake any vessel of the United States, or its citizens, which may have been unlawfully captured upon the high seas.— (3 Mar., 1819, c. 77, s. 2, v. 3, p. 512. 30 Jan., 1823, c. 7, v. 3, p. 721. The Marianna Flora, 11 Wh., 1; The Palm>Ta, 12 Wh., 1.) Sec. 4296. [Condemnation of piratical vessels.] T\Tienever any vessel, which shall have been built, purchased, fitted out in whole or in part, or held for the pm-pose of being employed in the commission of any piratical aggression, search, restraint, depredation, or seizure, or in the commission of any other act of piracy as defined by the law of nations, or from which any piratical aggres- sion, search, restraint, depredation, or seizure shall have been first attempted or made, is captured and brought into or captured in any port of the United States, the same shall be adjudged and condemned to their use, and that of the captors after due process and trial in any court having admiralty jiu-isdiction, and which shall be holden for the district into which such captured vessel shall be brought; and the same court shall thereupon order a sale and distribution thereof accordingly, and at its discretion. — (3 IMar., 1819, c. 77, s. 4, v. 3, p. 513. 30 Jan., 1823, c. 7, v. 3, p. 721. 5 Aug., 1861, c. 48, s. 1, v. 12, p. 314.) Bv the Navy personnel act of March 3, 1899, section 13 (30 Stat., 1007), "all provisions of law authorizing the distribution among captors of the whole or any portion of tlie proceeds of vessels, or any property here- after captured, condemned as prize," were repealed. 1130 Navigation. Pt. 2. REVISED STATUTES. Sec. 4298. Sec. 4297. [Seizure of vessels fitted out for piracy.] Any vessel built, pur- chased, fitted out in whole or in part, or held for the purpose of being employed in the commission of any piratical aggression, search, restraint, depredation, or seizure, or in the commission of any other act of piracy, as defined by the law of nations, shall be liable to be captured and brought into any port of the United States if found upon the high seas, or to be seized if found in any port or place within the United States, whether the same shall have actually sailed upon any piratical expedition or not, and whether any act of piracy shall have been committed or attempted upon or from such vessel or not; and any such vessel may be adjudged and condemned, if captured by a vessel authorized as hereinafter mentioned, to the use of the United States and to that of the cap- tors, and if seized by a collector, surveyor, or marshal, then to the use of the United States.— (5 Aug., 1861, c. 48, s. 1, v. 12, p. 314.) See note to section 4296, Re-vised Statutes. Sec. 4298. [What vessels authorized to seize pirates.] The President is authorized to instruct the commanders of the public armed vessels of the United States, and to authorize the commanders of any other armed vessels sailing under the authority of any letters of marque and reprisal granted by Congress, or the commanders of any other suitable vessels, to subdue, seize, take, and, if on the high seas, to send into any port of the United States, any vessel or boat built, purchased, fitted out, or held as mentioned in the preceding section.— (5 Aug., 1861, c. 48, s. 2, v. 12, p. 315.) 54641°— 22 72 1131 TITLE LI. REGULATION OF FISHERIES Sec. 4397. [Executive Departments to aid investigations.] The heads of the several Executive Departments shall cause to be rendered all necessary and practicable aid to the commissioner in the prosecution of his investigations and inquiries.— (9 Feb., 1S71, Res. No. 22, s. 3, v. 16, p. 594.) The "commissioner" referred to in this section is the Commissioner of Fish and Fisheries, chief of the Bureau of Fisheries, Depart- ment of Commerce. By act of May 31, 1880 (21 Stat., 151), the Sec- retary of the Navy was directed to place the vessels of the United States Fish Com- mission on the same footing with the Navy Department as those of the United States Coast and Geodetic Survey. (See sections 4684, 4686-4688, Revised Statutes, as to Coast and Geodetic Survey.) 1133 TIT].E LII. REGULATION OF STEAM -VESSELS. Sec. 4400. [What vessels are subject to the provisions of this title.] All steam vessels navigating any waters of the United States which are common highways of commerce or open to general or competitive navigation, except- ing public vessels of the United States, vessels of other countries, and boats propelled in whole or in part by steam for navigating canals, shall be subject to the provisions of this title, * * * This section was reenacted to read as above by act of March 17, 1900 (34 Stat.. 68). The omitted portion of the reenacted sec- tion does not relate to the Navv. Sec. 4412. [Regulations as to steamers passing each other.] The board of supervising inspectors shall establish such regulations to be observed by all steam-vessels in passing each other, as they shall from time to time deem neces- sary for safety; two printed copies of such regulations, signed by them, shall be furnished to each of such vessels, and shall at all times be kept posted up in conspicuous places in such vessels. — (Ibid., s. 29, p. 470.) By act of June 7, 1897, section 5 (30 Stat., 103), it was provided that sections 4233 and 4412, Revised Statutes, '(wdth the regula- tions made in pursuance thereof, except the rules and regulations for the govern- ment of pilots of steamers naviirating the Red River of the North and rivers empty- ing into the Gulf of Mexico and their tributaries, and except the rules for the Great Lakes and their connecting and tributary waters as far east as Montreal), '' and certain other statutory enactments, and all amendments thereto, "are hereby repealed so far as the harbors, rivers, and inland waters aforesaid (except the Great Lakes and their connecting and tributary waters as far east as Montreal and the Red River of the North and rivers emptying into the Gulf of Mexico, and their tribu- taries) are concerned."' By act of January 18, 1897 (29 Stat., 489), it was provided that all vessels "propelled by gas. fluid, naphtha, or electric motors," ; Sec. 4413. [Penalty for violation of regulations.] Every pilot, engineer, mate, or master of any steam vessel who neglects or willfully refuses to observe the regulations established in pursuance of the preceding section, shall be liable to a penalty of fifty dollars, and for all damages sustained by any passenger, in his person or baggage, by such neglect or refusal. — (Ibid.) See note to section 4412, Revised Statutes. Sec. 4438. [Licenses of officers by inspectors.] The boards of local inspectors shall license and classif^^ the masters, chief mates, and second and third mates, if in charge of a watch, engineers, and pilots of all steam vessels, and the masters of sail vessels of over seven hundred gross tons, and all other vessels of over one mthout regard to tonnage or use, shall be subject to the provisions of section 4412 of the Revised Statutes. By act of June 9, 1910 (36 Stat., 462), special rules were prescribed for motor boats on the navigable waters of the United States. See note to preamble of section 4233, Revised Statutes; and see acts of Februarv 19, 1895 (28 Stat., 672), and July 9, 19 18 '(40 Stat.. 893K For rules published in accordance with section 4412, Revised Statutes, signed by the- members of the Board of Supervising Inspectors, "for the government of pilots of vessels propelled by steam, gas, fluid, naphtha, or electric motors and of other vessels propelled by machinery, navigat- ing the Red River of the North, the Mississippi River, and other rivers empty- ing into the Gulf of Mexico, and their tributaries,'' see Navy Regulations, 1920, page 814. 1135 Sec. 4438. Ft. 2. REVISED STATUTES. Steam-vessels. liundred gross tons carrying passengers for hire. It shall be unlaAv-ful to employ any person or for any person to serve as a master, chief mate, engineer, or pilot of any steamer or as master of any sail vessel of over seven hundred gross tons or of any other vessel of over one hundred gross tons carrying passengers for hire who is not licensed by the inspectors; and anyone violating this section shall be liable to a penalty of one hundred dollars for each offense. This section was cxpreasly amended and reen- [ the license required by section 4438, Revised acted to read as above by act of May 28, i Statutes, although he may be eligible, by 1908, section 2 (35 Stat., 425.) j virtue of his commission, to take command of A naval officer can not lawfully serve as a steam vessel of the United States in the naval master of a private steam vessel in the merchant i service. (15 Op. Atty. Gen., 61, Oct. 26, 1875.) service vnthout having previously obtained j 1136 TITLE LIV. PRIZE. Sec. 4613. Application of provisions of Title. 4614. "Vessels of the Navy'' defined. 4615. Duties of commanding officer upon making capture. 4616. Statement of claim to share in prize. 4617. Duties of prize-master. 4618. Libel and proceedings by district at- torney. 4619. Duties of district attorneys; claim for damages against captors. 4621. Appointment of prize-commissioners; retired naval officer. 4622. Duties of prize-commissioners. 4623. Duties of marshal. 4624. Appraisal, &c., of property taken for Government. 4625. Proceedings for adjudication; property not sent in. 4626. Delivery of property on stipulation. 4627. When property may be sold. 4628. Mode of making sale. 4629. Transfer of property to another district for sale. 4630. 4631. 4632. 4633. 4634. 4636. 4637. 4638. 4639. 4640. 4641. 4642. 4644. 4645. 4646. 4647. 4650. 4651, 4652. Share of captors. Distribution of proceeds to captors. What vessels entitled to share. WTiat officers entitled to share. Determination of shares. Appeals and amendments in prize-cases. Powers of district court after appeal. Security for costs. Costa and expenses. Payment of expenses from prize-fund. Payment of prize-money. Distribution of salvage, &c. Clerks of district courts; accounts. Marshals; commissions allowed. District attorney and prize-commission- ers; compensation. District attorney and prize-commission- ers; accounts. Auctioneers; commissions. Witnesses' fees. Recaptures; salvage. Sec. 4613. [Application of provisions of Title.] The provisions of this Title shall apply to all captures made as prize by authority of the United States, or adopted and ratified by the President of the United States. — (30 June, 1864, c. 174, s. 33, V. 13, p. 315. Mrs. Alexander's Cotton, 2 Wall., 404; The Cotton Plant, 10 Wall., 577.) See sections 5310-5311, Revised Statutes, as to captures on inland waters of the United States. Sec. 4614. ['Vessels of the Navy," defined.] The term "vessels of the Navy," as used in this Title, shall include all armed vessels officered and manned by the United States, and under the control of the Department of the Navy. — (ibid., s. 32. The Siren, 1 Low., 280.) Sec. 4615. [Duties of commanding officer upon making capture.] The com- manding officer of any vessel making a capture shall secure the documents of the ship and cargo, including the log-book, with all other documents, letters, and other papers found on board, and make an inventory of the same, and seal them up, and send them, with the inventorv', to the court in which pro- ceedings are to be had, with a written statement that they are all the papers found, and are in the condition in which they were found; or explaining the absence of any documents or papers, or any change in their condition. He shall also send to such court, as witnesses, the master, one or more of the other officers, the supercargo, purser, or agent of the prize, and any person found on board whom he may suppose to be interested in, or to have knowledge respect- ing, the title, national character, or destination of the prize. He shall send 1137 Sec. 4617. Pt. 2. REVISED STATUTES. Prize. the prize, with the docnments, papers, and witnesses, under charge of a com- petent prize-master and prize-crew, into port for adjudication, explaining the absence of any usual witnesses; and in the absence of instructions from supe- rior authority as to the port to which it shall be sent, he shall select such port as he shall deem most convenient, in view of the interests of probable claimants, as well as of the captors. If the captured vessel, or any part of the captured property, is not in condition to be sent in for adjudication, a survey shall be had thereon and an appraisement made by persons as competent and impartial as can be obtained, and their reports shall be sent to the coiirt in which pro- ceedings are to be had; and such property, unless appropriated for the use of the Government, shall be sold by the authority of the commanding officer present, and the proceeds deposited with the assistant treasurer of the United States most accessible to such court, and subject to its order in the cause. — (Ibid., s. 1, p. 306. The Sally Magee, 3 Wall., 451; The Sir William Peel, 5 Wall., 517.) See "Instructions for the Navy of the United States f:;ovemino; Maritime Warfare, ' ' Navy Department, June, 1917; see also sections 4294-4299, and 5310-5311, Revised Stat- utes; and see article 15 of section 1624, Revised Statutes. Sec. 4616. [Statement of claim to share in prize.] If an}^ vessel of the United States shall claim to share in a prize, either as having made the capture, or as having been within signal distance of the vessel or vessels making the capture, the commanding officer of such vessel shall make out a written statement of his claim, with the grounds on which it is founded, the principal facts tending to show what vessels made the capture, and what vessels were within signal distance of those making the capture, with reasonable particularity as to times, distances, localities, and signals made, seen, or answered; and such statement of claim shall be signed by him and sent to the court in which pro- ceedings shall be had, and shall bo filed in the cause. — (Ibid., s. 2, p. 307.) By Navy personnel act of March 3, 1899, section 13 (30 Stat., 1007), it was proAdded that "all pro\dsions of law authorizing the distribution among captors of the whole or any portion of the proceeds of vessels, or any property hereafter captured, con- demned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy here- after occurring in time of war, are hereby repealed." See section 1624, Revised Statutes, articles 16 and 17; and see sections 5310 and 5311, Revised Statutes. Sec. 4617. [Duties of prize-master.] The prize-master shaU make his way diligently to the selected port, and there immediately deliver to a prize-com- missioner the documents and papers, and the inventory thereof, and make affidavit that they are the same, and are in the same condition as delivered to him, or explaining any absence or change of condition therein, and that the prize-property is in the same condition as delivered to him, or explaining any loss or damage thereto; and he shall further report to the district attorney and give to him all the information in his possession respecting the prize and her capture; and he shall deliver over the persons sent as witnesses to the custody of the marshal, and shall retain the prize in his custody until it shall be taken therefrom by process from the prize-court. — (Ibid., s. 3.) See "Instructions for the Navy of the United States governing Maritime Warfare," Navy Department, June, 1917. 1138 Prize. PL 2. REVISED STATUTES. Sec. 4622 Sec. 4618. [Libel and proceedings by district attorney.] Upon receiving the report of the prize-master directed l>y tlie preceding section, the attorney of the United States for the district shall immediately file a libel against such prize property, and shall forthwith obtain a warrant from the court, directing the marshal to take it into his custody, and shall proceed diligently to obtain a condemnation and distribution thereof; and to that end shall see that the proper preparator\" evidence is taken by the prize-commissioners, and that the prize-commissioners also take the depositions de bene esse of the prize-crew, and of other transient persons cognizant of any facts bearing on condemnation or distribution. — (Ibid., s. 4.) Sec. 4619. [Duties of district attorneys; claim for damages against cap- tors.] The district attorneys of the several judicial districts shall represent the interests of the United States in all prize-causes, and shall not act as sepa- rate counsel for the captors on any private retainer or compensation from them, unless in a question between the claimants and the captors, on a demand for damages. They shall examine all fees, costs, and expenses, sought to be charged on any prize-fund, and protect the interest of the captors and of the United States. The district attorneys of all districts in which any prize- causes are or may be pending shall, as often as once in three months, send to the Secretarv" of the Navj^ a statement of the condition of all prize-causes pending in their districts, in such form and embracing such particulars as the Secretary- of the Navy shall require. — (Ibid.) By section 970, Revised Statutes, it is pro\ided the person who made the seizure, nor the that ''When, in any prosecution com- menced on account of the seizure of any vessel, goods, wares, or merchandise, made by any collector or other ofHcer, under any act of Congress authorizing such seizure, Judgment is rendered for the claimant, but it appears to the court that there was reasonable cause of seizure, the court shall cause a proper certificate thereof to be entered, and the claimant shall not, in such case, be entitled to costs, nor shall prosecutor, be liable to suit or judgment on account of such suit or prosecution: Pro- vided, That the vessel, goods, wares, or merchandise be, after judgment, forthwith returned to such claimant or his agent." See note to Constitution, Article I, section 8, clause 13, under "IV. Responsibility of military authorities for illegal acts"'; see also articles 16 and 17, section 1624, Re- ^■ised Statutes. Sec. 4621. [Appointment of prize-commissioners; retired naval officer.] Any district court ma}' appoint prize-commissioners, not exceeding three in number; of whom one shall be a retired naval officer, approved by the Secre- tary of the Navy, who shall receive no other compensation than his pay in the Navy, and w^ho shall protect the interests of the captors and of the Depart- ment of the Navy in the prize-property; and at least one of the others shall be a member of the bar of the court, of not less than three years' standing, and acquainted wdth the taking of depositions. — (30 June, 1864, c. 174, s. 5, v. 13, p. 307.) Sec. 4622. [Dnties of prize-commissioners.] The prize-commissioners, or one of them, shall receive from the prize-master the documents and papers, and inventor}' thereof, and shall take the affidavit of the prize-master required by section forty-six hundred and seventeen, and shall forthwith take the testi- mony of the witnesses sent in, separate from each other, on interrogatories prescribed by the court, in the manner usual in prize-courts; and the witnesses shall not be permitted to see the interrogatories, documents, or papers, or to consult with counsel, or with any persons interested, without special authority 1139 Sec. 4624. PL 2. REVISED STATUTES. Prize. from the court; and witnesses who have the rights of neutrals shall be dis- charged as soon as practicable. The prize-commissioners shall also take depositions de bene esse of the prize-crew and others, at the request of the district attorney, on interrogatories prescribed by the court. They shall also, as soon as any prize-property comes within the district for adjudication, examine the same, and make an inventory thereof, founded on an actual examination, and report to the court whether any part of it is in a condition requiring im- mediate sale for the interests of all parties, and notify the district attorney thereof; and if it be necessary to the examination or making of the inventory that the cargo be unladen, they shall apply to the court for an order to the mar- shal to unlade the same, and shall, from time to time, report to the court any- thing relating to the condition of the property, or its custody or disposal, which may require any action by the court, but the custody of the property shall be in the marshal only. They shall also seasonably return into court, sealed and secured from inspection, the documents and papers which shall come to their hands, duly scheduled and numbered, and the other preparatory evidence, and the evidence taken de bene esse, and their own inventory of the prize- property; and if the captured vessel, or any of its cargo or stores, are such as in their judgment may be useful to the United States in war, they shall report the same to the Secretary of the Navy. — (Ibid., s. 6, p. 308.) Sec. 4623. [Duties of marshal.] The marshal shall safely keep all prize- property under warrant from the court, and shall report to the court any cargo or other property that he thinks requires to be unladen and stored, or to be sold. He shall insure prize-property, if in his judgment it is for the interest of all concerned. He shall keep in his custody all persons found on board a prize and sent in as witnesses, until they are released by the prize- commissioners or the court. If a sale of property is ordered, he shall sell the same in the manner required by the court, and collect the purchase-money, and forthwith deposit the gross proceeds of the sales with the assistant treasurer of the United States nearest the place of sale, subject to the order of the court in the particular cause; and each marshal shall forward to the Secretary of the Navy, whenever and as often as the Secretary of the Navy may require it, a full statement of the condition of each prize and of the disposal made thereof. — (Ibid., s. 7.) Sec. 4624. [Appraisal, etc., of property taken for Government.] Whenever any captured vessel, arms, munitions, or other material are taken for the use of the United States before it comes into the custody of the prize court, it shall be surveyed, appraised, and inventoried, by persons as competent and im- partial as can be obtained, and the survey, appraisement, and inventory shall be sent to the court in which proceedings are to be had ; and if taken afterward, sufficient notice shall first be given to enable the court to have the property appraised for the protection of the rights of the claimants and captors. In all cases of prize-property taken for or appropriated to the use of the Govern- ment, the Department for whose use it is taken or appropriated shall deposit the value thereof with the assistant treasurer of the United States nearest to the place of the session of the court, subject to the order of the court in the cause. — (Ibid., s. 27, p. 314.) See ''Instructions for the Navy of the United States governing Maritime Warfare," Navy Department, June 1917. 1140 Prize. Pt. 2. REVISED STATUTES. Sec. 4628. Sec. 4625. [Proceedings for adjudication; property not sent in.] If by reason of the condition of the captured property, or if because the whole has been appropriated to the use of the United States, no part of it has been or can be sent in for adjudication, or if the property has been entirely lost or destroyed, proceedings for adjudication may be commenced in any district the Secretary of the Navy may designate; and in any such case the proceeds of anything sold, or the value of anything taken or appropriated for the use of the United States, shall be deposited wath the assistant treasurer in or nearest to that district, subject to the order of the court in the cause. If, when no property can be sent in for adjudication, the Secretary of the Navy shall not, within three months after any capture, designate a district for the institution of pro- ceedings, the captors may institute proceedings for adjudication in any district. And if in any case of capture no proceedings for adjudication are commenced within a reasonable time, any parties claiming the captured property may, in any district court as a court of prize, move for a monition to show cause why such proceedings shall not be commenced, or institute an original suit in such court for restitution, and the monition issued in either case shall be served on the attorney of the United States for the district, and on the Secretary of the Navy, as well as on such other persons as the court shall order to be notified. — (30 June, 1864, c. 174, s. 28, v. 13, p. 314.) See " Instructions for the Navy of the United States governing Maritime Warfare,'' Xavy Department, June 1917. Sec. 4626. [Delivery of property on stipulation.] No prize-property shall be delivered to the claimants on stipulation, deposit, or other security, except where there has been a decree of restitution and the captors have appealed therefrom, or where the court, after a full hearing on the preparatory proofs, has refused to condemn the property on those proofs, and has given the captors leave to take furtlier proofs, or where the claimant of any property shall satisfy the court that the same has a peculiar and intrinsic value to him, independent of its market-value. In any of these cases, the court may deliver the property on stipulation or deposit of its value, if satisfied that the rights and interests of the United States and captors, or of other claimants, will not be prejudiced thereby; but a satisfactory appraisement shall be first made, and an oppor- tunity given to the district attorney and naval prize-commissioner to be heard as to the appointment of appraisers. Any money deposited in lieu of stipula- tion, and all money collected on a stipulation, not being costs, shall be deposited with the assistant treasurer, in the same manner as proceeds of a sale. — (Ibid., s. 26, p. 313.) Sec. 4627. [When property may be sold.] Whenever any prize-property is condemned, or at any stage of the proceedings is found by the court to be perisliing, perishable, or liable to deteriorate or depreciate, or whenever the costs of keeping the same are disproportionate to its value, the court shall order a sale of such property; and whenever, after the return-day on the libel, all the parties in interest who have appeared in the cause agree thereto, the court may make such order; and no appeal shall operate to prevent the making or execu- tion of such order. — (Ibid., s. 8, p. 308.) Sec. 4628. [Mode of making sale.] Upon a sale of any prize-property by order of the court, the Secretary of the Navy shall employ an auctioneer of 1141 Sec. 4631. Pt. 2. REVISED STATUTES. Prize. known skill in the branch of business to which any sale pertains, to make the sale, but the sale shall be conducted under the supervision of the marshal, and the collecting and depositing of the gross proceeds shall be by the auctioneer or his agent. Before any sale the marshal shall cause full catalogues and schedules to be prepared and circulated, and a copy of each shall be returned by the marshal to the court in each cause. The marshal shall cause all sales to be advertised fully and conspicuously in newspapers ordered by the court, and by posters, and he shall, at least five days before the sale, serve notice thereof upon the naval prize-commissioner, and the goods shall be open to inspection at least three days before the sale. — (Ibid.) Sec. 4629. [Transfer of property to another district for sale.] Whenever it appears to the court, in the case of any prize-property ordered to be sold, that it will be for the interest of all parties to have it sold in another district, the court may direct the marshal to transfer the same to the district selected by the court for the sale, and to insure the same, %Wth proper orders as to the time and manner of selling the same. It shall be the duty of the marshal so to transfer the property, and keep and sell the same in like manner as if the prop- erty were in his own district; and he shall deposit the gross proceeds of the sale with the assistant treasurer nearest to the place of sale, subject to the order of the court in which the adjudication thereon is pending. The neces- sary expenses attending the insuring, transferring, receiving, keeping, and selling the property shall be a charge upon it and upon the proceeds thereof; and whenever any such expense is paid in advance by the marshal, and he is not repaid from the proceeds, any amount not so repaid shall be allowed to him, as in case of expenses incurred in suits in which the United States is a party. The Secretary of the Navy may, in like manner, either by a general regulation or by special direction in any cause, require a marshal to transfer any prize-property from the district in which the judicial proceedings are pending, to any other district for sale; and the same proceedings shall be had as if such transfer had been made by order of the com-t. — (Ibid., s. 30, p. 315.) Sec. 4630. [Share of captors.] The net proceeds of all property condemned as prize, shall, w^hen the prize was of superior or equal force to the vessel or vessels making the capture, be decreed to the captors; and when of inferior force, one-half shall be decreed to the United States and the other half to the captors, except that in case of privateers and letters of marque, the whole shall be decreed to the captors, unless it shall be otherwise provided in the com- missions issued to such vessels. — (Ibid., s. 10, p. 309.) See act of March 3, 1899, quoted under section 4616, Revised Statutes; and see sections 5310 and 5311, Revised Statutes. Sec. 4631. [Distribution of proceeds to captors.] All prize-money adjudged to the captors shall be distributed in the following proportions: First. To the commanding officer of a fleet or squadron, one- twentieth part of all prize money awarded to any vessel or vessels under his immediate command. Second. To the commanding officer of a division of a fleet or squadron, on duty under the orders of the commander-in-chief of such fleet or squadron, a sum equal to one-fiftieth part of any prize-mone}" awarded to a vessel of 1142 diatribution of salvage, etc.; see also sec- tions 5310 and 5311, Revised Statutes. Prize. Pt. 2. REVISED STATUTES. Sec. 4633. such division for a capture made while under his command, such fiftieth part to be deducted from the moiety due to tlie United States, if there be such moiety, otherwise from the amount awarded to the captors; but such fiftieth part shall not be in addition to any share which may be due to the comman- der of the division, and which he may elect to receive, as commander of a single ship making or assisting in the capture. Third. To the fieet-captain, one-hundredth part of all prize-money awarded to any vessel or vessels of the fleet or squadron in which he is serving, except in a case where the capture is made by the vessel on board of which he is serving at the time of such capture; and in such case he shall share, in pro- portion to his pay, with the other officers and men on board such vessel. Fourth. To the commander of a single vessel, one-tenth part of all the prize-money awarded to the vessel under his command, if such vessel at the time of the capture was under the command of the commanding officer of a fleet or squadron, or a division, and tlu'ee-twentieths if his vessel was acting independently of such superior officer. Fifth. After the foregoing deductions, the residue shall be distributed and proportioned among all others doing duty on board, including the fleet- captain, and borne upon the books of the ship, in proportion to their respective rates of pay in the service. — (Ibid. 8 June, 1874, c. 256, v. 18, p. 63.) See act of March 3, 1899, quoted under section 4616, Revised Statutes; and see sections 4642 and 4652, Revised Statutes, as to Sec. 4632. [What vessels entitled to share.] All vessels of the Navy within signal-distance of the vessel or vessels making the capture, under such circum- stances and in such condition as to be able to render effective aid, if required, shall share in the prize; and in case of vessels not in the Navy, none shall be entitled to share except the vessel or vessels making the capture; in which term shall be included vessels present at and rendering actual assistance in the capture.— (30 June, 1864, c. 174, s. 10, v. 13, p. 309.) See act of March 3, 1899, quoted under section 4642 and 4652, Revised Statutes, as to dia- 4616, Revised Statutes; and see sections tribution of salvage, etc. Sec. 4633. [What officers entitled to share.] No commanding officer of a fleet or squadron shall be entitled to receive any share of prizes captured by any vessel or vessels not under his command, nor of such prizes as may have been captured by any vessels intended to be placed under his command, before they have acted under his orders. Nor shall the commanding officer of a fleet or squadron, leaving the station where he had command, have any share in the prizes taken by ships left on such station after he has gone out of the limits of his command, nor after he has transferred his command to his suc- cessor. No officer or other person who shall have been temporarily absent on duty from a vessel on the books of which he continued to be borne, while so absent, shall be deprived, in consequence of such absence, of any prize-money to which he would otherwise be entitled. And he shall continue to share in the captures of the vessels to which he is attached, until regularly discharged therefrom.— (30 June, 1864, c. 174, s. 10, v. 13, c. 309.) See act of March 3, 1899, quoted under section , 4642 and 4652, Revised Statutes, aa to dis- 4616, Revised Statutes; and see sections i tribution of salvage, etc. 1143 Sec. 4640. PL 2. REVISED STATUTES. Prize. Sec. 4634. [Determination of shares.] Wlienever a decree of condemnation is rendered, the court shall consider the claims of all vessels to participate in the proceeds, and for that purpose shall, at as early a stage of the cause as possible, order testimony to be taken tending to show what part should be awarded to the captors, and what vessels are entitled to share; and such testi- mony may be sworn to before any judge or commissioner of the courts of the Ignited States, consul or commercial agent of the United States, or notary public, or any officer of the Navy highest in rank, reasonably accessible to the deponent. The court shall make a decree of distribution, determining what vessels are entitled to share in the prize, and whether the prize was of superior, equal, or inferior force to the vessel or vessels making the capture. The decree shall recit« the amount of the gross proceeds of the prize subject to the order of the court, and the amount deducted therefrom for costs and expenses, and the amount remaining for distribution, and whether the whole of such residue is to go to the captors, or one-half to the captors, and one-half to the United States.— (Ibid., s. 9.) See act of March 3, 1899, quoted under section I 4642 and 4652, Re\T.sed Statutes, as to dis- 4616, Re\dsed Statutes; and see sections ! tribution of salvage, etc. Sec. 4636. [Appeals and amendments in prize cases.] The Supreme Court may, if, in its judgment, the purposes of justice require it, allow any amend- ment, either in form or substance, of any appeal in prize cases, or allow a prize appeal therein, if it appears that any notice of appeal or of intention to appeal was filed with the clerk of the district court within thirtv davs next after the rendition of the final decree therein. — (3 Mar., 1873, c. 230, s. 2, v. 17, p. 556.) Sec. 4637. [Powers of district court after appeal.] Notwithstanding any appeal to the Supreme Court, the district court may make and execute all necessary orders for the custody and disposal of the prize-property; and in case of appeal from a decree of condemnation, may still proceed to make a decree of distribution so far as to determine what share of the prize shall go to the captors, and what vessels are entitled to participate therein. — (30 June, 1864^ 0. 174, s. 13, V. 13, p. 310.) See act of March 3, 1899, quoted under section 4616, Revised Statutes. Sec. 4638. [Security for costs.] The court may require any party, at any stage of the cause, and on claiming an appeal, to give security for costs. — (Ibid., s. 15, p. 311.) Sec. 4639. [Costs and expenses.] All costs and all expenses incident to the bringing in, custody, preservation, insurance, sale, or other disposal of prize- property, when allowed by the court, shall be a charge upon such property, and shall be paid from the proceeds thereof, unless the court shall decree restitution free from such charge. — (Ibid., s. 14.) Sec. 4640. [Payment of expenses from prize-fund.] No payments shall be made for any prize-fund, except upon the order of the court. All charges for work and labor, materials furnished, or money paid, shall be supported by affi- davit or vouchers. The court may, at any time, order the payment, from the deposit made with the assistant treasurer in the cause, of any costs or charges accrued and allowed. "When the cause is finally disposed of, the court shall make its order or orders on the assistant treasurer to pay the costs and charges 1144 Prize. PL 2. REVISED STATUTES. Sec. 4644. allowed and unpaid; and in case the final decree shall be for restitution, or in case there shall be no money subject to the order of the court in the cause, any costs or charges allowed by the court, and not paid by the claimants, shall be a charge upon, and be paid out of, the fund for defraying the expenses of suits in which the United States is a party or interested. — (Ibid.) Sec, 4641. [Payment of prize money.] The net amount decreed for distribu- tion to the United States, or to vessels of the Navy, shall be ordered by the court to be paid into the Treasury of the United States, to be distributed according to the decree of the court. The Treasury Department shall credit the Navy Department ^\^th each amount received to be distributed to vessels of the Navy; and the persons entitled to share therein shall be severally credited in their accounts with the Navy Department with the amounts to which they are respectively entitled. In case of vessels not of the Navy, and not controlled by any Department of the Government, the distribution shall be made by the court to the several parties entitled thereto, and the amounts decreed to them shall be divided between the owners and the ship's company, according to any \\Titten agreement between them, and in the absence of such agreement, one-half to the o\\Tiers and one-half to the ship's company, according to their respective rates of pay on board; and the court may appoint a commissioner to make such dis- tribution, subject to the control of the com"t,who shall make due return of his doings, with proof of actual payments by him, and who shall receive no other compensation, directly or indirectly, than such as shall be allowed him hy the court. In case of vessels not of the Navy, but controlled by either Executive Department, the whole amount decreed to the captors shaU be divided among the ship's company. — (Ibid., s. 16.) See act of March 3, 1899, quoted under section 4616, Revised Statutes. Sec. 4642. [Distribution of salvage, etc.] All ransom-money, salvage, bounty, or proceeds of condemned property, accruing or awarded to any vessel of the Navy, shall be distributed and paid to the officers and men entitled thereto in the same manner as prize-money, under the direction of the Secretary of the Navy.— (Ibid., s. 11, p. 310.) See act of March ,3, 1899, noted under section 4616, Revised Statutes. By act of July 1, 1918 (40 Stat., 705), it was pro\'ided "that hereafter the Secretary of the Navy is authorized to cause vessels under his control adapted to the purpose, to afford salvage service to public or private vessels in distress: Provided, That when such salvage service is rendered by a ves- sel specially equipped for the purpose or by a tug, the Secretary of the Navy may deter- mine and collect reasonable compensation therefor. " See act of March 9, 1920, sections 10 and 11 {41 Stat., 528), relating to suits for salvage. Sec. 4644. [Clerks of district courts ; accounts.] The clerk of each district court shall render, to the Secretary' of the Treasury and the Secretary of the Navy, a semi-annual statement of all the sums allowed by the court, and ordered to be paid, within the previous half-year, to the district attorney and prize-commissioners for services, and to marshals for fees and commissions; and he shall, in all prize-causes in the district, for the pm-pose of the final decree of distribution, ascertain and keep an account of the amount deposited with the assistant treasurer, subject to the order of the court, in each prize-cause, and the amounts ordered to be paid therefrom as costs and charges, and the residue for distribution; and shall send copies of all fiual decrees of distribution to the 1145 Sec. 4650. Ft. J. REVISED STATUTES. Prize. Secretary of the Treasury and the Secretary of the Navy; and shall draw the orders of the court for the payment of all costs and allowances, and for the dis- trihution of the residue. For these services he shall be entitled to receive the sum of twenty-five dollars in each prize-cause, which shall be in full for the serv- ices required l)y thi.s action. — (Ibid., s. 17, p. 312.) Sec. 4645. [Marshals ; commissions allowed.] The marshal shall be allowed his actual and necessary expenses for the custody, care, preservation, insurance, sale, or other disposal of the prize-property, and for executing any order of the court respecting the same, and shall have a commission of one-quarter of one per centum on vessels, and of one-half of one per centum on all other prize-property, calculated on the gross proceeds of each sale; and if, after he has had any prize-property in his custody, and has actually performed labor and incurred responsibility for the care and preservation thereof, the same is taken by the United States for its own use without a sale, or if it is delivered on stipulation to the claimants, he shall, in case the same is condemned, be entitled to one-half the above commissions on the amount deposited by the United States to the order of the courts, or collected upon the stipulation. No charges of the marshal for expenses or disbursements shall be allowed, except upon his oath that the same have been actually and necessarily incurred for the purpose stated.— (Ibid., s. 18.) Sec. 4646. [District attorney and prize-commissioners; compensation.] The district attorney and prize-commissioners, except the naval officer, shall be allowed a just and suitable compensation for their respective services in each prize-cause, to be adjusted and determined by the court, and to be paid as costs in the cause. — (Ibid., s. 20.) See section 3667, Revised Statutes, and note thereto, as to naval pension fund. Sec. 4647. [District attorney and prize-commissioners; accounts.] Each district attorney and prize-commissioner, except the naval officer, shall render to the Attorney-General an annual account of all sums he shall have received for all services in prize-causes within the previous year; and the district attorney shall be allowed to retain therefrom a sum not exceeding three thousand dollars a year, in addition to the maximum compensation allowed to be retained by him; under the provisions of Title XIII, "The Judiciary," or in addition to any salary he may receive in lieu of such maximum compensation; and each such prize-commissioner shall be allowed to retain a sum not exceeding three thousand dollars a year, which shall be in full for all his official services in prize-causes; and any excess over those respective amounts shall be paid by the officer receiving the same into the Treasury of the United States, and shall be credited to the fund for paying naval pensions. — (30 June, 1864, c. 174, s. 21, V. 13, p. 312. 22 Juno, 1870, c. 150, s. 15, v. 16, p. 164.) Sec. 4650. [Auctioneers ; commissions.] The auctioneers employed to make sales of prize-property shall be entitled to receive commissions by a scale to be established by the Secretary of the Navy, not to exceed, in any case, one-half of one per centum on any sum exceeding ten thousand dollars on vessels, nor one per centum on that sum on other prize-property, which shall be in full for expenses, as well as for services; and in case no such scale shall be established, they shall be entitled to receive such compensation as the court shall deem just under the circumstances of each case. — (Ibid., s. 22.) 1146 Prize. Pt. 2. REVISED STATUTES. Sec. 4652. Sec. 4651. [Witnesses' fees.] Wlienever the court shall allow fees to any witness in a prize-cause, or fees for taking evidence out of the district in which the court sits, and there is no money subject to its order in the cause, the same shall be paid by the marshal, and shall be repaid to him from any money deposited to the order of the court in the cause; and any amount not so repaid the marshal shall be allowed as witness-fees paid by him in cases in which the United States is a party.— (30 June, 1864, c. 174, s. 25, v. 13, p. 313.) Sec. 4652. [Recaptures; salvage.] When any vessel or other property shall have been captured by any force hostile to the United States, and shall be recaptured, and it shall appear to the court that the same had not been con- demned as prize before its recapture, by any competent authority, the court shall award a meet and competent sum as salvage, according to the circum- stances of each case. If the captm^ed property belonged to the United States, it shall be restored to the United States, and there shall be paid from the Treasury of the United States the salvage, costs, and expenses ordered by the court. If the recaptured property belonged to persons residing within or under the protection of the United States, the court shall adjudge the property to be restored to its owners, upon their claim, on the payment of such sum as the court may award as salvage, costs, and expenses. If the recaptured prop- erty belonged to any person permanently resident within the territory and under the protection of any foreign prince, government, or state in amity wdth the United States, and by the law or usage of such prince, government, or state, the property of a citizen of the United States would be restored under like circumstances of recapture, it shall be adjudged to be restored to such owner, upon his claim, upon such terms as by the law or usage of such prince, government, or state would be required of a citizen of the United States under like circumstances of recapture; or when no such law or usage shall be known, it shall be adjudged to be restored upon the payment of such salvage, costs, and expenses as the court shall order. The whole amount awarded as salvage shall be decreed to the captors, and no part to the United States, and shall be distributed as in the case of proceeds of property condemned as prize. Nothing in this Title shall be construed to contravene any treaty of the United States. — (Ibid., s. 29, p. 314.) See section 4642, Revised Statutes, and note thereto, as to distribution of salvage. 54641 °— 22 73 1 147 TITLE LV. LIGHTS AND BUOYS. Sec. 4679. [Light-House Board ; no additional compensation to officers.] No additional salary shall ])e allowed to any civil, military, or naval officer on account of his being employed on the Light-House Board, or being in any manner attached to the light-house service. — (31 Aug., 1852, c. 112, s. 17, V. 10, p. 120.) By act of June 17, 1910, section 4 (36 Stat., 537), a bureau of light-houses was established in the Department of Commerce and Labor (now the Department of Commerce); and by section 5 of the same act it was provided that "all employees of or in the Light- House Board or the Light-House Estab- lishment are hereby transferred to the bureau of light-houses, excepting, how- ever. Army and Navy officers." "Hereafter officers of the Army and Navy de- tailed for service in connection with the Light-House Establishment shall be paid their actual traveling expenses when trav- eling under orders on official duty to and from points which can not be conveniently reached by vessel or I'ailroad." (Act Feb. 26, 1907, see. 6, 34 Stat., 997; see also sec. 1566, R. S., and notes thereto, as to mile- age and actual expenses of naval officers traveling on duty.) By section 4671, Revised Statutes, it was pro- \ided that "an officer of the Army or Navy shall be assigned to each district as a light- house inspector, subject to the orders of the Light-House Board;" etc. Said sec- tion was expressly repealed by the act of June 17, 1910, section 13 (36 Stat., 539), which said act, section 11 (36 Stat., 538, 539) proAdded that "the President may, for a period not exceeding three years fi"om the taking effect of this section, assign Amiy and Navy officers to act in lieu of the appointment of civilian light-house in- spectors, but such Army and Navy officers shall not receive any salary or compensation in addition to the salary or compensation they are entitled to as such Army or Navy officers." 1149 TITLE LVL the mode of executing the survey which has been submitted to the President by a board of officers organized under the act of March three, eighteen hundred and forty-three, cliapter one hundred." THE COAST SURVEY. Sec. 4684. [Employment of officers of Army and Navy.] The President shall carry into effect the plan of the board, as agreed upon by a majority of its members; and shall cause to be employed as many officers of the Army and Navy of the United States as will be compatible with the successful prose- cution of the work; the officers of the Navy to be employed on the hydro- graphical parts, and the officers of the Army on the topographical parts of the work; and no officer of the Army or Navy shall receive any extra pay out of any appropriations for surveys. — ^(Ibid.) The "board "' referred to in this section is that provided for in section 4683, Revised Statutes, as follows: "All appropriations made for the work of surveying the coast of the United States shall be expended in accordance with the plan of reorganizing Sec. 4686. [Power to employ vessels.] The President is authorized, for any of the purposes of surveying the coast of the United States, to cause to be employed such of the public vessels in actual service as he deems it expedient to employ, and to give such instructions for regulating their conduct as he deems proper, according to the tenor of this Title. — (10 Feb., 1807, c. 8, s. 3, V. 2, p. 414. 14 April, 1818, c. 58, s. 1, v. 3, p. 425.) Sec. 4687. [Officers of the Army and Navy; manner of employment.] Offi- cers of the Army and Navy shall, as far as practicable, be employed in the work of surveying the coast of the United States, whenever and in the manner required by the Department having charge thereof. — (17 June, 1844, c. 105, s. 1, V. 5, pp. 681, 691.) Sec. 4688. [Allowance for subsistence.] The Secretary of the Treasiu-y may make such allowances to the officers and men of the Army and Navy, while employed on Coast Survey service, for subsistence, in addition to their compensation, as he may deem necessary, not exceeding the sum authorized by the Treasury regulation of the eleventh day of May, eighteen hundred and forty-four.— (12 June, 1858, c. 154, s. 1, v. 11, pp. 319, 320.) For restriction upon allowance to officers of Army and Navy attached to the Coast and Geodetic Survey, see act August 30, 1890 (26 Stat, 382.) 1151 TITLE LVII. PENSIONS. [By Act op October 6, 1917, as amended by Act of June 25, 1918, Section 17, it was Enacted IN Section 312 thereof (40 Stat., 408, 613), that "The Laws Providing for Gratuities or Payments in the Event of Death in the Service and Existing Pension Laws Shall Not be Applicable After the Enactment of this Amendment to Any Person in the Active Military or Naval Service on the Sixth Day of October, Nineteen Hundred AND Seventeen, or Who Thereafter Entered the Active Military or Naval Service, OR to Their Widows, Children, or Their Dependents, Except In So Far As Rights Under Any Such Law Have Heretofore Accrued."] Sec. 4750. Navy pension fund, Secretary of the Navy trustee. 4752. Navy pension fund, prize money accru- ing to United States. 4753. Navy pension fund, how invested. 4754. Navy pension fund, rate of interest 4755. Navy pensions payable from fund. 4756. DisalDled enlisted men, twenty years' service. Sec. 4757. 4787. 4788. 4789. 4790. 4791. Disabled enlisted men, ten years' service. Artificial limbs. Commutation for artificial limbs. Commutation paid by Commissioner of Pensions. Commutation to those who can not use artificial limb. Transportation to persons receiving arti- ficial limbs. Sec. 4750. [Navy pension-fund, Secretary of the Navy trustee.] The Secre- tary of the Navy shall be trustee of the Navy pension-fund. — (10 July, 1832, c. 194, s. 1, V. 4, p. 572.) See sections 3667, 3689, 4647, and 4752-4757, Rev-ised Statutes. Maintenance of Naval Home. — The annual naval appropriation act, in appropriating for the maintenance of the Naval Home, Philadelphia, Pa., provides that the sum 80 appropriated "shall be paid out of the income of the naval pension fund" (e. g., act June 4, 1920, 41 Stat., 818). Payment of naval pensions. — The annual act making appropriation for Army and Navy- pensions provides that the sum so appro- priated for Navy pensions "shall be paid from the income of the Navy pension fund, so far as the same shall be sufficient for that purpose" (e.g., act. Feb. 16, 1921, 41 Stat., 1104). See also section 4755, Revised Statutes. History of naval pension fund. — See "Manual for the Medical Department of the United States Navy," 1917, paragraphs 3761- 3784. "All moneys derived from the sale of material at the Naval Home, which was originally purchased from moneys appropriated from the income from the naval pension fund, and all moneys derived from the rental oi Naval Home property, shall hereafter be turned into the naval pension fund." (Act Mar. 4, 1917, 39 Stat., 1175.) Pensions of deceased inmates of the Naval Home are to escheat to the naval pension fund in certain cases. (See act June 30, 1914, 38 Stat., 398, quoted under sec. 4813, R. S.) Money belonging to deceased inmates of the Naval Home is to be credited to the naval pension fund in certain cases. (See act June 30, 1914, 38 Stat., 398.) Sec. 4762. [Navy pension-fund, prize money accruing to United States.] All money accruing or which has ah'eady accrued to the United States from sale of prizes shall be and remain forever a fund for the payment of pensions to the officers, seamen, and marines who may be entitled to receive the same; and if such fund be insufficient for the purpose, the public faith is pledged to make up the deficiency; but if it should be more than sufficient, the surplus shall be 1153 Sec. 4756. PL 2. REVISED STATUTES. Pensions. apj)lied to the making of further provision for the comfort of the disabled officers, seamen, and marines. — (17 July, 1862, c. 204, s. 11, v. 12, p. G07.) See note to section 4750, Revised Statutes; and see sections 4613^652, Re\dsed Statute?, as to capture and sale of prizes. Sec. 4753. [Navy pension-fund, how invested.] The Secretary of the Navy, as trustee of the naval j^onsion-fund, is directed to cause to be invested in the registered securities of the United States, on the first day of January and the fij-st day of July of each year, so much of such fund then in the Treasury of the Unitod States as may not be required for the payment of naval pensions for the then current fiscal year; and upon the requisition of the Secretary, so much gf the fund as may not be required for such payment of pensions accruing during the current fiscal year shall be held in the Treasury on the days above named in each year, subject to his order, for the purpose of such immediate investment; and the interest payable in coin upon the securities in which the fund may be invested, shall be so paid, when due, to the order of the Secretary of the Navy, and he is authorized and directed to exchange the amount of such interest when paid in coin, for so much of the legal currency of the United States as may be obtained therefor at the current rates of premium on gold, and to deposit the interest so converted in the Treasury to the credit of the naval pension-fund; but nothing herein contained shall be construed to inter- fere Avith the payment of naval pensions under the supervision of the Secretary of the Interior, as regulated by law. — (1 July, 1864, Res. No. 62, v. 13, p. 414.) See note to section 4750, Revised Statutes. Sec. 4754. [Navy pension-fund, rate of interest.] The interest on the naval pension-fund shall hereafter be at the rate of three per centum per annum in la\vful money.— (23 July, 1868, c. 229, s. 2, v. 15, p. 170.) See note to section 4750, Revised Statutes. Sec. 4755. [Navy pensions payable from fund.] The Navy pensions shall be paid from the Navy pension-fund, but no payments shall be made therefrom except upon appropriations authorized by Congress. — (23 July, 1868, c. 229, s. 2, V. 15, p. 170. 11 July ,1870, c. 238, v. 16, p. 222. 20 June, 1874, c. 335, V. 18, p. 115. 23 Mar., 1876, c. 30, v. 19, p. 8. 19 Jan., 1877, c. 27, v. 19, p. 224.) See note to section 4750, Revised Statutes. Sec. 4756. [Disabled enlisted men, twenty years' service.] There shall be paid out of the naval pension-fund to every person who, from age or infirmity, is disabled from sea-service, but who has served as an enlisted person or as an appointed petty officer, or both, in the Navy or Marine Corps for the period of twenty years, and not been discharged for misconduct, in lieu of being pro- vided wath a home in the Naval Asylum, Philadelphia, if he so elects, a sum equal to one-half the pay of his rating at the time he was discharged, to be paid to him quarterly, under the direction of the Commissioner of Pensions; and applications for such pension shall be made to the Secretary of the Navy, who, upon being satisfied that the applicant comes within the provisions of this section, shall certify the same to the Commissioner of Pensions, and such certificate shall be his warrant for making payment as herein authorized. — (2. Mar., 1867, c. 174, s. 6, v. 14, p. 516.) 1154 Pensions. PL 2. REVISED STATUTES. Sec. 4767. This section was expressly amended to read as above by act of December 23, 1886 (24 Stat., 353), the amendment consisting of inserting therein the words, "or as an appointed petty officer, or both," after the words, "as an enlisted person." "The laws providing for gratuities or payments in the event of death in the service and existing pension laws shall not be applica- ble after the enactment of this amendment to any person in the active military or naval service on the sixth day of October, nineteen hundred and seventeen, or who thereafter entered the active military or naval ser\dce, or to their widows, cliildren, or their dependents, except in so far as rights under any such law have heretofore accrued." (Act Oct. 6, 1917, sec. 312, 40 Stat., 408, as amended by act of June 25, 1918, sec. 17, 40 Stat., 613.) " The pensions of beneficiaries of the Naval Home shall be disposed of in the same man- ner as prescribed for inmates of the Soldiers' Home, * * * vmder such regulations as the Secretary of the Navy may pre- scribe." (Act June 30, 1914, 38 Stat., 398.) See note to section 4813, Revised Statutes. Jurisdiction of the Secretary of the Navy.— The Secretary of the Navy has ex- clusive jurisdiction to determine who are entitled to the money benefits granted by sec- tion 4756 of the Revised Statutes, and after that official has issued a certificate allowing same, the Commissioner of Pensions, in making pay- ment of said money benefits, acts only in a ministerial capacity. (31 Op. Atty. Gen., 127; affirmed. Op. Atty. Gen., Nov. 7, 1917, file 26510-1022: 11; see C. M. O. 37-1918, p. 20.) See note to section 471, Revised Statutes, as to jurisdiction of the Secretary of the Navy and the (Commissioner of Pensions. Effect of War Risk Insurance Act. — Section 4756, Re\'ised Statutes, is, under the established practice of the Navy Department, to be regarded as one of the ' ' existing pension laws " referred to in section 312 of the War Risk Insurance Act of October 6, 1917 (quoted above). Payments under section 4756 can not, therefore, be any longer made except so far as rights under the said section had accrued on October 6, 1917. (31 Op. Atty. Gen., 296.) A sergeant in the Marine Corps who, prior to the enactment of the War Risk Insurance Act of October 6, 1917 (above quoted), had served in the corps for more than 21 years, and who had become "disabled from sea ser\ice" by a wound received in action in June 1916, but who, though entitled to honorable discharge from the service on October 6, 1917, did not actually receive his discharge until November 5, 1917, is entitled both to the benefits of sec- tion 4756, Revised Statutes, and also to what- ever allowance he may be otherwise entitled to under the provisions of the War Risk In- surance Act. (31 Op. Atty. Gen., 296.) In this case the rights of the sergeant under section 4756 had "accrued " on October 6, 1917, and the fact that he did not actually receive his discharge until November 5, 1917, isimmaterial. (31 Op.^Atty. Gen., 296.) Allowance in addition to pension. — Allowances under sections 4756 and 4757, Re\'ised Statutes, do not fall -nathin the pro- hibition of section 4715, Re\'ised Statutes (prohibiting the allowance of more than one pension at the same time), and may therefore be paid in addition to a pension under the general pension laws. (31 Op. Atty. Gen., 268.) Allowance in addition to War Risk compensation. — Assuming that the pro- \T.sions of the War Risk Insurance Act, provid- ing compensation for injmies, are to be regarded as constituting a general pension law, never- theless the prohibition of section 4715, Revised Statutes, against the allowance of more than one pension at the same time to the same per- son does not affect the case of allowances under section 4756, Revised Statutes. (31 Op. Atty. Gen., 296, citing 31 Op. Atty. Gen., 268.) See note above, under "Effect of War Risk Insurance Act." Allow^ance to inmates of Naval Home. — The money benefits pro^dded for in section 4756 of the Revised Statutes are "pensions" within the purview of section 4813 of the Re- ■\dsed Statutes and the pertinent provision of the act of June 30, 1914 (quoted above), and such money benefits inure to the grantees concui'- rently with maintenance in the Naval Home. (31 Op. Atty. Gen., 268. See sees. 4757 and 4813, R. S., and notes thereto.) Allowance to inmates of St. Elizabeths Hospital. — Allowances under sections 4756 and 4757, Revised Statutes, which accrue to inmates of St. Elizabeths Hospital, should be paid to the superintendent of the hospital, notwithstanding such inmates are represented by a legal guardian or committee. (31 Op. Atty. Gen., 354.) See sections 1551, 4838, and 4839, Revised Statutes. For other cases, see note to section 4757, Revised Statutes. Sec. 4757. [Disabled enlisted men, ten years' service.] Every disabled person who has served in the Navy or Marine Corps as an enhsted man or as an appointed petty officer, or both, for a period not less than ten years, and not been discharged for misconduct, may apply to the Secretary of the Navy for aid from the surplus income of the naval pension-fund; and the Secretary of the Navy is authorized to convene a board of not less than three naval officers, one of vyhom shall be a surgeon, to examine into the condition of the applicant, and to recommend a suitable amount for his relief, and for a specified time, and upon the approval of such recommendation by the Secretary of the Navy, 1155 Sec. 4788. Pt. 2. REVISED STATUTES. Pensions. and certificate thereof to the Commissioner of Pensions, the amount shall be paid in the same manner as is provided in the preceding section for the pay- ment to persons disabled by long service in the Navy; but no allowance so made shall exceed the rate of a pension for full disability corresponding to the grade of the applicant, nor, if in addition to a pension, exceed one-fourth the rate of such pension. — (2 Mar., 1867, c. 174, s. 6, v. 14, p. 516.) This section was expressly amended to read as above by act of December 23, 1886 (24 Stat., 353), the amendment consisting of inserting the words, "or as an appointed petty officer, or both," after the words, "as an enlisted man." See note to section 4756, Revised Statutes. Allo-wance to inmates of Naval Home. — Allowances under section 4757, Revised Stat- utes, are "pensions"" within the meaning of section 4813 of the Revised Statutes and the act of June 30, 1914 (33 Stat., 398), and should therefore be disposed of, in cases where the beneficiaries are inmates of the Naval Home, in the manner prescribed by that act, that is, paid to the governor of the Naval Home for the use of the grantees. (31 Op. Atty. Gen., 268.) See note to section 4756, Re\d8ed Statutes; and see section 4813, Revised Statutes, and note thereto. Sec. 4787. [Artificial limbs.] Every officer, soldier, seaman, and marine, who was disabled, during the war for the suppression of the rebeUion, in the military or naval service, and in the line of duty, or in consequence of wounds received or disease contracted therein, and who was furnished by the War Department, since the seventeenth day of June, eighteen hundred and seventy, with an artificial limb or apparatus for resection, or who was entitled to receive such limb or apparatus since said date, shall be entitled to receive a new limb or apparatus at the expiration of every five years thereafter, imder such regu- lations as have been or may be prescribed by the Surgeon-General of the Army. [The provisions of this section shall apply to all officers, non-commissioned officers, enlisted and liired men of the land and naval forces of the United States, who, in the line of their duty as such, shall have lost limbs or sustained bodily injuries depriving them of the use of any of their limbs, to be determined by the Surgeon-General of the Army; and the term of five years herein specified shall be held to commence in each case with the filing of the application for the benefits of this section.] — (27 July, 1868, c. 264, s. 14, v. 15, p. 237. 17 June, 1870, c. 132, s. 1, V. 16, p. 153. 30 June, 1870, c. 179, v. 16, p. 174. 23 Mar., 1876, c. 30, V. 19, p. 8. 27 Feb., 1877, c. 69, v. 19, p. 252.) This section is reproduced above as it appears in the second edition of the Revised Statutes. The portion thereof in brackets was added to the original section by act of Februarv 27, 1877 (19 Stat., 252). By act of August 15, 1876 (19 Stat., 203-204), provision was made for furnishing artificial limbs or appliances or commutation there- for to "every officer, soldier, seaman and marine, who, in the line of duty, in the military or naval service of the United States, shall have lost a limb, or sustained bodily injuries, de]iri\dng him of the use of any of his limbs." (See act cited.) By act of March 3, 1891 (26 Stat., 1103), it was provided "That section forty-seven hun- dred and eighty-seven of the Revised Statutes of the United States be amended by striking out the word 'five' where it occTirs therein, and inserting in lieu thereof the word ' ' three ' so that when amended said section ^vill read as follows: Every officer, soldier, seaman, and marine who was disabled during the war for the sup- pression of the rebellion, in the military or naval service, and in the line of duty, or in consequence of wounds received or disease contracted therein, and who was furnished by the War Department since the seventeenth day of June, eighteen hundred and seventy, with an artificial limb or apparatus for resection, who was entitled to receive such limb or apparatus since said date, shall be entitled to receive a new limb or apparatus at the expiration of every three years thereafter, under such regulations as have been or may be pre- scribed by the Surgeon-General of the Army. See note to section 1176, Revised Statutes. Sec. 4788. [Commutation for artificial limbs.] Every person entitled to the benefits of the preceding section may, if he so elects, receive, instead of such 1156 Pensions. PL 2. REVISED STATUTES. Sec. 4791. limb or apparatus, the money value thereof, at the following rates, namely: For artificial legs, seventy-five dollars; for arms, fifty dollars; for feet, fifty dollars; for apparatus for resection, fifty dollars. — (17 June, 1870, c. 132, s. 1, V. 16, p. 153. 15 Aug., 1876, c. 300, v. 19, p. 203.) See act of August 15, 1876 (19 Stat., 203-204), and note to section 1176, Revised Statutes. Sec. 4789. [Commutation paid by Commissioner of Pensions.] The Sur- geon-General shall certify to the Commissioner of Pensions a list of all soldiers who elect to receive money commutation instead of limbs or apparatus, with the amount due to each, and the Commissioner of Pensions shall cause the same to be paid to such soldiers in the same manner as pensions are paid. — (17 June, 1870, c. 132, s. 2, V. 16, p. 153.) See act of August 15, 1876 (19 Stat., 203-204), and note to section 1176, Revised Statutes; see also act of March 3, 1891 (26 Stat., 979). Sec. 4790. [Commutation to those who can not use artificial limb.] Every person in the military or naval service who lost a limb during the war of the rebellion, [or is entitled to the benefits of section forty-seven hundred and eighty- seven,] but from the nature of liis injury is not able to use an artificial limbj shall be entitled to the benefits of section forty-seven hundred and eighty-eight, and shall receive money commutation as therein provided. — (Ibid., s. 3. 27 Feh., 1877, c. 69, V. 19, p. 2.52.) This section was amended to read as above by act of February 27, 1877 (19 Stat., 252), which inserted therein the words inclosed in brackets. Sec. 4791. [Transportation to persons receiving artificial limbs.] The Secretary of War is authorized and directed to furnish to the persons embraced by the provisions of section forty-seven hundred and eighty-seven, transporta- tion to and from their homes and the place where they may be required to go to obtain artificial limbs provided for them under authority of law. [The trans- portation allowed for having artificial limbs fitted shall be fm^nished by the Quartermaster-General of the Army, the cost of which shall be refunded from the appropriations for invalid pensions.] — (28 July, 1866, c. 305, v. 14, p. 342. 23 Mar., 1876, c. 30, v. 19, p. 8. 15 Aug., 1876, c. 300, s. 2, v. 19, p. 204. 27 Fel)., 1877, c. 69, v. 19, p. 252.) This section was amended to read as above by act of February 27, 1877 (19 Stat., 252), wliich added thereto the words inclosed in brackets. 1157 TITLE LIX. HOSPITALS. ASYLUMS, AND CEMETERIES. Sec. 4807. Superintendence of Navy hospitals. 4808. Na\-y hospital fund. 4809. Appropriation of fines. 4810. Purchase and erection of Navy hospitals and naval home. 4811. Naval Home, eovemment of. 4812. Allowance of rations to Navy hospitals. 4813. Allowance from pensions to Na\y hospi- tals. Sec. 4838 4839 Saint Elizabeth Hospital. Superintendent; money and pensions of inmates. 4843. Admission of insane persons of Navy, Marine Corps, etc. 4878. Burial in national cemeteries. Sec. 4807. [Superintsndence of Navy hospitals.] The Secretary of the Navy shall have the general charge and superintendence of Navy hospitals. — (26 Feb., 1811, c. 26, s. 1, v. 2, p. 650. 10 July, 1832, c. 194, s. 5, v. 4, p. 573.) See note to section 4810, Revised Statutes. Sec. 4808. [Navy hospital fund.] The Secretary of the Navy shall deduct from the pay due each officer, seaman and marine, in the Navy, at the rate of twenty cents per month for each person, to be applied to the fund for Navy hospitals.— (2 Mar., 1799, c. 36, s. 2, v. 1, p. 729. 26 Feb., 1811, c. 26, s. 1, Y. 2, p. 650.) See sections 1614 and 1586, Revised Statutes. For history of naval hospital fund, and infor- mation relating thereto, see "Manual for the Medical Department of the United States Na\-v%" 1917, paragraphs 3631-3671. Other sources of income to naval hospital fund : See sections 4809, 4812, and 4813, Re\ised Statutes, and note thereto. Restrictions upon use of naval hospital fund for erection of hospitals: See section 4810, Re\ised Statutes. Sec. 4809. [Appropriation of fines.] All fines imposed on navy officers, sea- men, and marines shall be paid to the Secretary of the Navy, for the main- tenance of Navy hospitals.— (26 Feb., 1811., c. 26, s. 2, v. 2, p. 650. 10 July, 1832, c. 194, s. 5, v. 4, p. 573.) By act of June 7, 1900 (31 Stat., 697), it was discharged naval prisoners from fines and pro^'ided that "all forfeitures on account forfeitures imposed by naval courts-martial, of desertion shall be passed to the credit of thereby modifying section 4809, Revised the naval hospital fund." Statutes, under which such fines and for- By act of March 3, 1909 (35 Stat., 756), provi- feitures had pre\iously gone in their en- sion was made for pajonent of expenses of tirety to the naval hospital fund. Sec. 4810. [Purchase and erection of Navy hospitals and naval home.] The Secretary' of the Navy shall procure at suitable places proper sites for Navy hospitals, and if the necessary buildings are not procured vn.th the site, shall cause such to be erected, having due regard to economy, and giving preference to such plans as with most convenience and least cost will admit of subsequent additions, when the funds permit and circumstances requho; and shall pro- vide, at one of the establishments, a permanent asylum for disabled and decrepit Navy officers, seamen, and marines : Provided, That hereafter no sites shall be procured or hospital buildings erected or extensions to existing hospitals made unless hereafter authorized by Congress: Provided, That the sum of 1159 Sec. 4813. Pt. 2. REVISED STATUTES Hospitals. $70,000 is appropriated, to bo paid out of any money in the Treasury not othondse appropriated, for the building of a new power plant at the Naval Hospital, Chelsea, Massachusetts, said sum of money to be paid into the Treasury from the proceeds of sale of land authorized b}^ the naval Act of Juno twenty- ninth, nineteen hundred and six. This section was expressly amended and reen- acted to read as above by act of March 4, 1913 (37 Stat., 902). As to Naval Home (formerly known as Naval Asylum) at Philadelphia, see sections 4750, 4756, 4757, 4811-4813, Re^^sed Stat- utes, and notes thereto. As to maintenance of the Naval Home from the income of the naval pension fund, and the crediting to that fund of proceeds of certain sales and rentals of Naval Home property, and the pensions and money effects of deceased seamen in certain cases, see notes to section 4750, Revised Statutes. By act of June 30, 1882 (22 Stat., 121), proAi- sion was made for the erection of an Army and Navv hospital at Hot Spiings, Ark., and by the act of March 3, 1909 (35 Stat., 748), it was pro\'ided that "all persons" admitted to treatment in said hospital shall, while patients therein, "be subject to the rules and articles for the government of the armies of the United States." By act of June 12, 1906 (34 Stat., 255), it was pro\'ided that "all persons" admitted to treatment in the general hospital at Fort Bayard, New Mexico, shall, while patients therein, "be subject to the rules and arti- cles for the government of the armies of the United States;" and by the act of March 2, 1907 (34 Stat.. 1172), it was pro- \dded that the hospital at Fort Bayard, New Mexico, for the treatment of tubercu- losis, "shall be opened to the treatment of the officers and men of the Navy and Ma- rine Corps." (See notes to sees. 1342, 1621, and 1624, R. S., as to persons subject to military law.) By act of March 3, 1919, section 2 (40 Stat., 1302), there were permanently transfen-ed to the Treasury Department for the use of the Public Health Ser\ice, "such hospitals, with other necessary buildings, hereafter vacated by the War Department, as may be required and found suitable for the needs of the Public Health Service for hospital or sanatoria purposes;" and by the same act, section 3 (40 Stat., 1303), it was pro^'ided that "the President is authorized to direct the transfer to the Ti'easuiy Department of the United States of such lands or parts of lands, buildings, fixtures, appliances, fur- nishings, or furniture under the control of any other department of the Government not required for the purposes of such de- partment and suitable for the uses of the Public Health SerA-ice." Saint Elizabeths Hospital, for treatment of the insane: See sections 1551 and 4838, Re- vised Statutes. Sec. 4811. [Naval Home, government of.] The asylum for disabled and decrepit Navy officers, seamen, and marines shall be governed in accordance with the rules and regulations prescribed b}" the Secretary of the Navy. — (26 Feb., 1811, c. 26, s. 4, v. 2, p. 650.) See section 4810, Revised Statutes, and note thereto Sec. 4812. [Allowance of rations to Navy hospitals.] For every Navy officer, seaman, or marine admitted into a Navy hospital, the institution shall be allowed one ration per day during liis continuance therein, to be deducted from the account of the United States with such officer, seaman, or marine. — (Ibid., s. 5.) As to rations allowed in Navy and Marine Coips see sections 1577-1585 and 1615, Revised Statutes, and notes thereto. As to medicines and medical attendance al- lowed persons in the Navy, see section 1586, Re\dsed Statutes. Sec. 4813. [Allowance from pensions to Navy hospitals.] Whenever any Navy officer, seaman, or marine, entitled to a pension, is admitted to a Navy hospital, the pension, during his continuance in the hospital, shall be paid to the Secretary of the Navy and deducted from the account of such pensioner. — ■ (Ibid.) Amendment to this section was made by act of May 4, 1898 (30 Stat., 377), which provided that "whenever any officer, seaman, or marine entitled to a pension is admitted to the Naval Home at Philadelphia, or to a naval hospital, his pension, while he re- mains there, shall be deducted from his ac- counts and paid to the Secretary of the Navy for the benefit of the fund from which such home or hospital, respectively, is 1160 Hospitals. Pt. 2. REVISED STATUTES. Sec. 4839. maintained; and section forty-eight hun- dred and thirteen of the Revised Statutes of the United States is hereby amended ac- cordingly.' ' Thisamendment was repeated in identical language in the naval appropria- tion act of March 3, 1899 (30 Stat., 1027). By act of June 30, 1914 (38 Stat., 398), it was provided that "the pensions of benefi- ciaries of the Naval Home shall be disposed of in the same manner as prescribed for in- mates of the Soldiers' Home, as provided for in section four of the Act approved March third, eighteen hundred and eighty-three, under such regulations as the Secretary of the Navy may prescribe, except that in the case of death of any beneficiary leaving no heirs at law nor next of kin any pension due him shall, subject to the foregoing provi- sions, escheat to the naval pension fund." By act of March 3, 1883, section 4 (22 Stat. , 564), relating to the Soldiers' Home, and which was extended to the Naval Home, Avith cer- tain modifications, by the act of June 30,1914, above-quoted , it was provided that "Any in- mate of the Home who is receiving a pension from the government, and who has a child, Avife, or parent living, shall be entitled, by fiUng with the pension agent from whom he receives his money a Avritten dii'ection to that effect, to have his pension, or any part of it, paid to such child, wife, or parent. The pensions of all who now are or shall hereafter become inmates of the Home, ex- cept such as shall be assigned as aforesaid, shall be paid to the treasurer of the Home. The money thus derived shall not become a part of the funds of the Home, but shall be held by the treasurer in trust for the pen- sioner to whom it would otherwise have been paid, and such part of it as shall not sooner have been paid to him shall be paid to him on his discharge from the institution. The board of commissioners may from time to time pay over to any inmate such part of his pension-money as they think best for his interest and consistent ^vith the discipline and good order of the Home, but such pen- sioner shall not be entitled to demand or have the same so long as he remains an in- mate of the Home. In case of the death of any pensioner, any pension money due him and remaining in the hands of the treasurer shall be paid to his legal heirs, if demand is made within three years; othenvise the same shall escheat to the Home." Disposition of pensions; inmates Naval Home.^ — See notes to sections 4756 and 4757, Revised Statutes. See section 1551, Revised Statutes, and note thereto; see also note to section 4756, Re- vised Statutes. Sec. 4838. [Saint Elizabeths Hospital.] There shall be in the District of Columbia a Government Hospital for the Insane, and its object shall be the most humane care and enlightened curative treatment of the insane of the Army and Navy of the United States and of the District of Columbia. — (3 Mar., 1855, c. 199, s. 1, V. 10, p. 682.) Amendment to this section, but without direct reference thereto, was made by act of July 1, 1916 (39 Stat., 309), which pro- vided that "the Government Hospital for the Insane shall be known and designated as Saint Elizabeths Hospital." Sec. 4839. [Superintendent; money and pensions of inmates.] The chief executive officer of the Government Hospital for the Insane shall be a super- intendent, who shall be appointed by the Secretary of the Interior, * * * and shall give bond for the f aitlihil performance of his duties in such sum and with such securities as may be required by the Secretary of the Interior. The superintendent shall be a well-educated physician, possessing competent expe- rience in the care and treatment of the insane; he shaU reside on the premises and devote his whole time to the welfare of the institution; he shall, subject to the approval of the board of visitors, appoint a responsible disbm^sing agent for the institution, who shall give a bond satisfactory to the Secretary of the Inte- rior, and the said superintendent shall engage and discharge all needful and useful employees in the care of the insane and ah laborers on the farm and determine their wages and duties; he shall also be an ex officio secretary of the boai'd of visitors. The said disbursing agent, under the direction of the super- intendent, shall have the custody of and pay out all moneys appropriated by Congi'ess for the Government Hospital for the Insane, or otherwise received for the purposes of the hospital, and all moneys received by the superintendent in behalf of the hospital or its patients, and keep an accm^ate accomit or accounts 1161 Sec. 4843. Pt. 2. REVISED STATATES. Hospitals. thoroof . Tho said disbursing agont shall deposit in the Treasury of the United StaUvs, under the direction of the superintendent, all funds now in tho hands of the superintendent or which may hereafter be intrusted to him by or for the use of patients, which shall bo kept in a separate account; and the said disburs- ing agent is authorized to draw therefrom, under the direction of the said superintendent, from time to time, under such regulations as the Secretary of the Interior may prescribe, for the use of such patients, but not to exceed for any one patient the amomit intrusted to the superintendent on account of such patient. During the time that any pensioner shall be an inmate of the Govern- ment Hospital for the Insane, all money due or becoming due upon his or her pension shall be paid by the pension agent to the superintendent or disbursing agent of the hospital, upon a certificate by such superintendent that the pen- sioner is an inmate of the hospital and is living, and such pension money shall be by said superintendent or disbureing agent disbursed and used, under regula- tions to be prescribed by the Secretary of the Interior, for the benefit of the pensioner, and, in case of a male pensioner, his wife, minor childi'on, and depend- ent parents, or, if a female pensioner, her minor children, if any, in the order named, and to pay his or her board and maintenance in the hospital, the remamder of such pension money, if any, to be placed to the credit of the pen- sioner and to be paid to the pensioner or the guardian of the pensioner in the event of his or her discharge from the hospital; or, in the event of the death of said pensioner while an inmate of said hospital, shall, if a female pensioner, be paid to her minor children, and, in the case of a male pensioner, be paid to his wdfe, if living; if no wife survives him, then to his minor children; and in case there is no wife nor minor children, then the said unexpended balance to his or her credit shall be applied to the general uses of said hospital: Provided, That in the case of any pensioner transferred to the hospital from the National Home for Disabled Volunteer Soldiers any pension money to his credit at said Home at the time of his said transfer shall be transferred with him to said hos- pital and placed to his credit therein, to be expended as hereinbefore provided, and in case of his retm"n from said hospital to the Home any balance to his credit at said hospital shall in like manner be transferred to said Home, to be expended in accordance with the rules established in regard thereto, * * *_ This section was expressly amended and reen- See note to section 4756, as to pensions of in- acted to read as above by act of February mates of Saint Elizabeths Hospital. 2, 1909 (35 Stat., 592). See note to section 1551, Revised Statutes, as See note to section 4838 as to change of designa- to allotments, etc., of inmates. tion to "Saint Elizabeths Hospital. " Sec. 4843. [Admission of insane persons of Navy, Marine Corps, etc.] The superintendent, upon the order of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Treasury, respectively, shall receive, and keep in custody until they are ciu-ed, or removed by the same authority which ordered their reception, insane persons of the following descriptions: First. Insane persons belonging to the Ai-my, Navy, Marine Corps, and revenue-cutter service. Second. Civilians employed in the Quartermaster's and Subsistence Depart- ments of the Army who may be, or may hereafter become, insane while in such employment. 1162 Hospitals. Ft. 2. REVISED STATUTES. Sec. 4878. Third. Men who, while in the service of the United States, in the Army Navy, or Marine Corps, have been admitted to the hospital, and have been thereafter discharged from it on the supposition that they have recovered their reason, and have, within three years after such discharge, become again insane from causes existing at the time of such discharge, and have no adequate means of support. Fourth. Indigent insane persons who have been in either of the said services and been discharged therefrom on account of disability arising from such insanity. Fifth. Indigent insane persons who have become insane within three years after their discharge from such service, from causes which arose during and were produced by said service. — (15 June, 1860, c. 66, s. 1, v. 12, p. 23. 13 July, 1866, c. 179, ss. 1, 2, v. 14, pp. 93, 94. 3 Mar., 1875, c. 156, s. 5, v. 18, y. 486.) of October 6, 1917 (40 Stat., 373), with reference to interned persons and prisoners of war under the jurisdiction of the War Department. Other statutes relating to admissions to this hospital do not relate to the Navy and are not noted. With reference to habeas corpus proceedings in the cases of persons in the naval service committed to Saint Elizabeths Hospital, see note to section 761, Revised Statutes, under "appeal from decision of the court or justice granting writ," and "arrest of petitioner after discharge." The Revenue-Cutter Service and the Life- Saving Service were consolidated and re- established as the "Coast Guard" by act of January 28, 1915 (38 Stat., 800). See notes to sections 1492 and 2757, Revised Statutes. By act of August 29, 1916 (39 Stat., 558), it was provided that ' ' hereafter interned persons and prisoners of war, under the jurisdic- tion of the Navy Department, who are or may become insane, shall be entitled to admission for treatment to the Govern- ment Hospital for the Insane' ' (now desig- nated as Saint Elizabeths Hospital). A similar provision was contained in the act Sec. 4878. [Burial in national cemeteries.] All soldiers, sailors, or marines dying in the service of the United States, or dying in a destitute condition after having been honorably discharged from the service, or who served, or hereafter shall have served, during any war in which the United States has been, or may hereafter be engaged, and, with the consent of the Secretary of War, any citizen of the United States who served in the Army or Navy of any government at war with Germany or Austria during the World War and who died while in such service or after honorable discharge therefrom, may be buried in any national cemetery free of cost. The production of the honorable discharge of a deceased man in the former case, and a duly executed permit of the Secretary of War in the latter case, shall be sufficient authority for the superintendent of any cemetery to permit the interment. Army nurses honorably discharged from their service as such may be biu"ied in any national cemetery, and, if in a destitute condition, free of cost. The Secretary of War is authorized to issue certificates to those Army nurses entitled to such burial. This section was expressly amended and re- enacted to read as above by act of April 15, 1920 (41 Stat., 5-52). See act of March 4, 1921 (41 Stat.. 1440), as to entomb- ments in Arlington Memorial Amphi- theater. 54641°— 22- -74 1163 TITLE LX. PATENTS, TRADE-MARKS, AND COPYRIGHTS. Sec. 4894. [Applications for patents ; Government interested.] All applica- tions for patents shall be completed and prepared for examination within one year after the filing of the apphcation, and in default thereof, or upon failure of the applicant to prosecute the same witliin one year after any action therein, of which notice shall have been given to the applicant, they shall be regarded as abandoned by the parties thereto, unless it be shown to the satisfaction of the Commissioner of Patents that such delay was unavoidable: Provided, however, That no application shall be regarded as abandoned which has become the property of the Government of the United States and with respect to which the head of any department of the Government shall have certified to the Commissioner of Patents, mthin a period of three years, that the invention disclosed therein is important to the armament or defense of the United States: Provided further, That within ninety days, and not less than thirty days, before the expiration of any such three-year period the Commissioner of Patents shall, in wi'iting, notify the head of the department interested in any pending application for patent, of the approaching expiration of the three-year period within which any application for patent shall have been pending. This section was expressly amended and reen- acted to read as above by act of July 6, 1916 (39 Stat., 348). Issuance of patents to Government officers without payment of fee, in certain case. — See act March 3, 1883 (22 Stat., 625). Requests by heads of departments to expedite issuance of patents. — See act March 3, 1897 (29 Stat., 694). Unauthorized use of patent by United States; suit in Court of Claims authorized in cer- tain cases. — See act of July 1, 1918 (40 Stat., 705), amending and reenacting act of June 25, 1910 (36 Stat., 851), on the same subject. Withholding of patents during war, if disclo- sure of invention would be detrimental to the public safety or defense. — See act of October 6, 1917740 Stat., 394). See note to Constitution, Article I, section 8, clause 8. 1165 TITLE LXVI. EXTEADITION. Sec. 5275. [Use of naval forces for protection of accused.] Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safe-keeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safe-keeping and protection of the accused.— (3 Mar.. 1869, c. 141. s. 1, v. 15. p. 337.) 1167 TITLE LXIX. INSURRECTION. Sec. 5297. 5293. 5299. 5300. 5306. 5310. Inaurrection ajjainst State. Insurrection against United States. Domestic violence in violation of civil rights. Proclamation to insurgents to disperse. Trading without license; embezzlement; other offenses. Property taken on inland waters. Sec. 5311 proceedings; property Condemnation seized. 5313. Trading in captured or abandoned prop- erty; punishment. 5314. Collection of duties; insurrection. 5315. Removal of customhouse. 5316. Enforcement of preceding sections; use of Navy. Sec. 5297. [Insurrection against State.] In case of an insurrection in any State against the government thereof, it shall be la-w^ul for the President, on application of the legislature of such State, or of the executive, when the legis- lature cannot be convened, to call forth such number of the militia of any other State or States, which may be applied for, as he deems sufficient to suppress such insurrection; or, on like application, to employ, for the same purposes, such part of the land or naval forces of the United States as he deems neces- sary.— (28 Feb., 1795, c. 36, s. 1, v. 1, p. 424. 3 Mar., 1807, c. 39, v. 2, p. 443.) See note to Constitution, Article I, section 8, clause 11, as to war power. Sec. 5298. [Insurrection against United States.] Whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory, it shall be la^\^ul for the President to call forth the militia of any or all the States, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed. — (29 July, 1861, c. 25, s. 1, V. 12, p. 281.) Sec. 5299. [Domestic violence in violation of civil rights.] Whenever insurrection, domestic violence, unlawful combinations, or conspiracies in any State so obstructs or hinders the execution of the laws thereof, and of the United States, as to deprive any portion or class of the people of such State of any of the rights, privileges, or immunities, or protection, named in the Constitu- tion and secured by the laws for the protection of such rights, privileges, or immunities, and the constituted authorities of such State are unable to protect, or, from any cause, fail in or refuse protection of the people in such rights, such facts shall be deemed a denial by such State of the equal protection of the laws to which they are entitled under the Constitution of the United States; and in all such cases, or whenever any such insurrection, violence, unlawful combination, or conspiracy, opposes or obstructs the laws of the United States, 1169 Sec. 5313. Pt. 2. REVISED STATUTES. Insurrection. Or the due execution thereof, or impedes or obstructs the due course of justice under the same, it shall be lawful for the President, and it shall be his duty, to take such measures, by the employment of the militia or the land and naval forces of the Ignited States, or of either, or by other means, as he may deem necessary, for tlie suppression of such insurrection, domesticviolence, or combina- tions.— (20 April 1S71, c. 22, s. 3, v. 17, p. 14.) Sec. 5300. [Proclamation to insurgents to disperse.] ^VheneYer, in the judgment of the President, it becomes necessar}' to use the military forces under this Title, the President shall forthwith, by proclamation, command the insurgents to disperse and retire peaceably to their respective abodes, within a limited time.— (29 July, 1861, c. 25, s. 2, v. 12, p. 282.) Sec. 5306. [Trading without license ; embezzlement ; other offenses.] Every officer of the United States, civil, military, or naval, and every sutler, soldier, marine, or other person, who takes, or causes to be taken into a State declared to be in insurrection, or to any other point to be thence taken into such State, or who transports or sells, or otherwise disposes of therein, any goods, wares, or merchandise whatsoever, except in pursuance of license and authority of the President, as provided in this Title, or who makes any false statement or repre- sentation upon which license and authority is granted for such transportation, sale, or other disposition, or who, under any license or authority obtained, willfully and knowingly transports, sells, or otherwise disposes of any other goods, wares, or merchandise than such as are in good faith so licensed and authorized, or who willfully and knowingly transports, sells, or disposes of the same, or any portion thereof, in violation of the terms of such license or authority, or of any rule or regulation prescribed by the Secretary of the Treasury con- cerning the same, or who is guilty of any act of embezzlement, of willful mis- appropriation of public or private money or property, of keeping false accounts, or of willfully making any false returns, shall be deemed guilty of a misde- meanor, and shall be fined not more than five thousand dollars, and imprisoned in the penitentiary not more than three years. Violations of this section shall be cognizable before any court, civil or military, competent to try the same. — (2 July, 1864, c. 225, s. 10, v. 13, p. 377.) Sec. 5310. [Property taken on inland waters.] No property seized or taken upon any of the inland waters of the United States by the naval forces thereof shall be regarded as maritime prize; but all property so seized or taken shall be promptly delivered to the proper officers of the courts. — (2 July, 1864, c. 225, s. 7, V. 13, p. 377.) See sections 4613-4652, Revised Statutes, and notes thereto, on subject of prize. Sec. 5311. [Condemnation proceedings; property seized.] The Attorney- General, or the attorney of the United States for any judicial district in which such property may at the time be, may institute the proceedings of condemna- tion, and in such case they shall be wholly for the benefit of the United States; or any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts. — (6 Aug., 1861, c. 68, s. 3, v. 12, p. 319.) Sec. 5313. [Trading in captured or abandoned property; punishment.] All persons in the military or naval service of the United States are prohibited 1170 Insurrection. Pt. 2. REVISED STATUTES. Sec. 5315. from buying or selling, trading, or in any way dealing in captured or abandoned property, whereby they shall receive or expect any profit, benefit, or advantage to themselves, or any other person, directly or indirectly connected with them; and it shall be the duty of such person whenever such property comes into his possession or custody, or within his control, to give notice thereof to some agent, appointed by virtue of this Title, and to turn the same over to such agent without delay. Any officer of the United States, civil, military, or naval, or any sutler, soldier, or marine, or other person who shall violate any provision of this section, shall be deemed guilty of a misdemeanor, and shall be fined not more than five thousand dollars, and imprisoned in the penitentiary not more than three years. Violations of this section shall be cognizable before any court, civil or military, competent to try the same. — (2 July, 1864, c. 225, s. 10, V. 13, p. 377.) Sec. 5314. [Collection of duties; insurrection.] Whenever the President shall deem it impracticable, by reason of unlawful combmations of persons in opposition to the laws of the United States, to collect the duties on imports in the ordinary way, at any port of entry in any collection-district, he may cause such duties to be collected at any port of delivery in the district until such ob- struction ceases ; in such case the surveyor at such port of delivery shall have the powers and be subject to all the obligations of a collector at a port of entry. The Secretary of the Treasury, with the approval of the President, shall also appoint such weighers, gaugers, measurers, inspectors, appraisers, and clerks, as he may deem necessary, for the faitliful execution of the revenue laws at such port of delivery, and shall establish the limits within which such port of delivery is constituted a port of entry. And all the provisions of law regulating the issue of marine papers, the coasting-trade, the warehousing of imports, and the collection of duties, shall apply to the ports of entry thus constituted, in the same manner as they do to ports of entry established by law.— (13 July, 1861, c. 3, s. 1, v. 12, p. 255.) Sec. 5315. [Removal of custom-house.] Whenever, at any port of entry, the duties on imports can not, in the judgment of the President, be collected in the ordinary way, or by the course provided in the preceding section, by reason of the cause mentioned therein, he may direct that the custom-house for the district be established in any secure place within the district, either on land or on board any vessel in the district, or at sea near the coast; and in such case the collector shall reside at such place, or on shipboard, as the case may be, and there detain all vessels and cargoes arriving within or approaching the district, until the duties imposed by law on such vessels and their cargoes are paid in cash. But if the owner or consignee of the cargo on board any vessel thus detained, or the master of the vessel, desires to enter a port of entry in any other district where no such obstructions to the execution of the laws exist, the master may be permitted so to change the destination of the vessel and cargo in his manifest; whereupon the collector shall deliver him a written permit to proceed to the port so designated. And the Secretary of the Treas- ury, with the approval of the President, shall make proper regulations for the enforcement on shipboard of such provisions of the laws regulating the assess- ment and collection of duties as in his judgment may be necessary and prac- ticable.— (Ibid., s. 2, p. 256. 3 Mar., 1875, c. 136, s. 2, v. 18, p. 469.) 1171 Sec. 6316. Ft. 2. REVISED STATUTES. Insurrection. Sec. 5316. [Enforcement of preceding sections; use of Navy.] It shjiU bo unlawful to take any vessel or cargo detained under the preceding section from the custody of the proper officers of the customs, unless by process of some court of the United States; and in case of any attempt otherwise to take such vessel or cargo by any force, or combination, or assemblage of persons too great to be overcome by the officers of the customs, the President, or such person as he shall have empowered for that purpose, may employ such part of the ^Vrmy or Navy or militia of the United States, or such force of citizen volunteers as may be necessary, to prevent the removal of such vessel or cargo, and to protect the officers of the customs in retaining the custody thereof. — (12 July, 1861, c. 3, s 3, v. 12, p. 256.) 1172 TITLE LXXIV. REPEAL PROVISIONS. Sec. 5595. 5596. 5600. What Revised Statutes embrace. Repeal of acts embraced in revision. Arrangement and classification of sec- tions. Sec. 5601. Acts passed since December 1, 1873, not affected. Sec. 5595. [What Revised Statutes embrace.] The foregoing seventy-three titles embrace the statutes of the United States general and permanent in their nature, in force on the 1st day of December one thousand eight hundred and seventy- three, as revised and consoUdated by commissioners appointed under an act of Congress, and the same shall be designated and cited, as The Revised Statutes of the United States.— (20 June, 1874, c. 333, v. 18, ]). 113. 28 Dec, 1874, c. 9, V. 18, p. 293.) See "Introduction," under "II. The Revised Statutes. " Sec. 5596. [Repeal of acts embraced in revision.] All acts of Congress passed prior to said first day of December one thousand eight hundred and seventy- three, any portion of which is embraced in any section of said revision, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof; all parts of such acts not contained in such revision, having been re- pealed or superseded by subsequent acts, or not being general and permanent in their nature: Provided, That the incorporation into said revision* of any general and permanent provision, taken from an act making appropriations, or from an act containing other provisions of a private, local, or temporary character, shall not repeal, or in any way affect any appropriation, or any provision of a private, local or temporary character, contained in any of said acts, but the same shall remain in force; and all acts of Congress passed prior to said last-named day no part of which are embraced in said revision, shall not be affected or changed by its enactment. — (U. S. v. Jordan, 2 Low., 537.) See "Introduction," under VI, E, "Construction of particular statutes," subheading, "Re- vised Statutes." Sec. 5600. [Arrangement and classification of sections.] The arrangement and classification of the several sections of the revision have been made for the purpose of a more convenient and orderly arrangement of the same, and there- fore no inference or presumption of a legislative construction is to be drawn by reason of the Title, under which any particular section is placed. Sec. 5601. [Acts passed since Dec. 1, 1873, not affected.] The enactment of the said revision is not to affect or repeal any act of Congress passed since the 1st day of December one thousand eight hundred and seventy-three, and all acts passed since that date are to have full effect as if passed after the enact- ment of this revision, and so far as such acts vary from, or conflict with any provision contained in said revision, they are to have effect as subsequent statutes, and as repealing any portion of the revision inconsistent therewith. — (18 Feb., 1875, c. 84, v. 18, p. 329. 3 Mar., 1875, c. 130, s. 9, v. 18, p. 401.) Approved, June 22, 1874. 1173 PART 3. THE UNITED STATES STATUTES AT LARGE. (1175) [1850, Sept. 28. Pay of Superintendent, Naval Academy.] And the pay of the superintendent of the naval school at Annapolis shall be at the rate allowed to an officer of his rank, when in service at sea. — (9 Stat., 515, chap. 80.) See note to section 1556, Revised Statutes, under "Additional pay for special duty." [1862, July 16. Wages at navy yards, how fixed.] That section eight of an act to further promote the efficiency of the navy, approved December twenty- first, eighteen hundred and sixty-one, be amended so as to read as follows: That the hours of labor and the rate of wages of the employees in the navy yards shall conform, as nearly as is consistent with the public interest, with those of private establishments in the immediate vicinity of the respective yards, to be determined by the commandants of the navy yards, subject to the approval and revision of the Secretary of the Navy. — (12 Stat., 587, chap. 184.) By Navy Regulations and Naval Instiiictions, 1913 (Art. I. 371), it was provided that "the rates of wages of employees shall conform to the standard of private estab- lishments in the immediate \'icinity of the respective navy yards as pro\TLded by the act of July 16, 18G2 * * *." See note to act of March 3, 1909 (35 Stat., 754- 755), for a similar statutory provision relating to compensation of employees at na\'y yards and stations. No part of this act was embraced in any section of the Re\dsed Statutes, although portions of the act of December 21, 1861 (12 Stat., 330), of which it was amendatory, were carried into the revision. (See sec. 5596, R. S., as to the repeal of prior acts by the re\T.sion.) See note to section 1545, Revised Statutes, as to wages of na\'y^ yard employees; and as to hours of labor, see act of August 1, 1892 (27 Stat., 340), as amended by act of March 3, 1913 (37 Stat., 726.) [1863, Mar. 3. Commandant, Mare Island navy yard, pay.] That the pay of the officer of the navy assigned to the command of the navy yard at Mare Island, California, shall be the sea pay of his grade. — (12 Stat., 825, Res. No. 25.) See note to section 1556, Revised Statutes, under "Additional pay for special duty." [1874, June 20, sec. 3. Extra compensation to civil officers prohibited.] That no civil officer of the Government shall hereafter receive any compensation or perquisites, directly or indirectly, from the treasury or property of the United States beyond his salary or compensation allowed by law: Provided, That this shall not be construed to prevent the employment and payment by the Department of Justice of district attorneys as now allowed by law for the performance of services not covered by their salaries or fees. — (18 Stat, 109, chap. 328.) See sections 1763-1765, Revised Statutes, and notes thereto. [1874, June 20, sec. 5. Unexpended balances of appropriations.] That from and after the first day of July, eighteen hundred and seventy-four, and of each year thereafter, the Secretary of the Treasury shall cause all unexpended bal- ances of appropriations which shall have remained upon the books of the Treasury for two fiscal years to be carried to the surplus fund and covered into 1177 As to report to Congress of anio;mts found chie claimants, see act of June 14, 1878, section 4 (20 Stat., 130), which repealed a clause omitted from this provision, and act of July?, 1884 (23 Stat., 254). June 23, 1874. Pt. 3. STATUTES AT LARGE. the Treasury: Provided, That this provision shall not apply to permanent specific appropriations, appropriations for rivers and harbors, light-houses, fortifications, public buildings, or the pay of the navy and marine corps; but the appropriations named in this proviso shall continue available until other- wise ordered by Congress. — (IS Stat., 110, chap. 32S.) As to unexpended balances of appropriations, see section 3(i91, Revised Statutes, and act of July 2G, 188(), section 2 (24 Stat., 157). As to permanent specific appropriations, see section 3689, Revised Statutes, and act of August 24, 1912, section 7 (37 Stat., 487). [1874, June 22. Pay on promotion.] That on and after the passage of this act, any officer of the Navy who may be promoted in course to fill a vacancy in the next higher grade shall be entitled to the pay of the grade to which pro- moted from the date he takes rank therein, if it be subsequent to the vacancy he is appointed to fill. — (18 Stat., 191, chap. 392.) See note to section 1561, Revised Statutes, and see act of March 4, 1913 (37 Stat., 892). [1874, June 22, sec. 2. Pay of officers dismissed and restored.] That the accounting officers of the Treasury be, and are hereby, proliibited from making any allowance to any officer of the Navy who has been, or may hereafter be, dismissed from the service and restored to the same under the provisions of the twelfth section of the act of March third, eighteen hundred and sixty-five, entitled "An act to amend the several acts heretofore passed to provide for the enrolling and calling out the national forces, and for other purposes," to exceed more than pay as on leave for six months from the date of dismissal, unless it shall appear that the officer demanded in writing, addressed to the Secretary of the Navy, and continued to demand as often as once in six months, a trial as provided for in said act. — (18 Stat., 192, chap. 392.) See section 1624, Revised Statutes, article 37, and note thereto. The provisions of the act of March 3, 1865, section 12, referred to above, are incorpo- rated into section 1624, Revised Statutes, article 37. [1874, June 23. Hazing at Naval Academy.] That in all cases when it shall come to the knowledge of the superintendent of the Naval Academy, at Annapolis, that any cadet-midsliipman or cadet-engineer has been guilty of the offense commonly known as hazing, it shall be the duty of said superin- tendent to order a court-martial, composed of not less than three commissioned officers, who shall minutely examine into all the facts and circumstances of the case and make a finding thereon; and any cadet-midshipman or cadet- engineer found guilty of said offense by said com-t shall, upon recommendation of said court be dismissed; and such finding, when approved by said superin- tendent, shall be final; and the cadet so dismissed from said Naval Academy shall be forever ineligible to re-appointment to said Naval Academy. — (18 Stat., 203-204, chap. 453.) See notes to section 1519, Re\ised Statutes, for later laws relating to hazing and the court- martial of midshipmen. See notes to section 1512, Revised Statutes, as to change in title of cadet midshipmen and cadet engineers. See act of April 9, 1906, section 2 (34 Stat., 104, 105), for partial repeal of this enactment. 1178 Pt. 3. STATUTES AT LARGE. Mar. 3, 1875. [1875, Jan. 18. Traveling expenses, approval of Secretary.] For expenses and transportation of ofRcers traveling under orders, * * * Provided, That no allowance shall be made in the settlement of any account for traveling expenses unless the same be incurred on the order of the Secretary of the Navy, or the allowance be approved by him. — (18 Stat., 297, chap. 18.) See note to section 1566, Revised Statutes, as to mileage and traveling expenses. 1875, Mar. 3, sec. 3. Estimates, time for furnishing ; explanations accom- panying.] That it shall be the duty of the heads of the several Executive Departments, and of other officers authorized or required to make estimates, to furnish to the Secretary of the Treasury, on or before the first day of October of each year, their annual estimates for the public service, to be included in the Book of Estimates prepared by law under his direction; and the Secretary of the Treasury shall submit, as a part of the appendix to the Book of Esti- mates, such extracts from the annual reports of the several heads of Depart- ments and Bureaus as relate to estimates for appropriations, and the necessities therefor.— (18 Stat., 370, chap. 129.) See, generally, sections 429, 430, and 3666, Re- vised Statutes, and laws noted thereimder. As to time of furnishing estimates, see act of March 3, 1901, section 5 (31 Stat., 1009); and see note to section 430, Revised Statutes. [1875, Mar. S. Land grant railroads.] That no money shall hereafter be paid to any railroad company for the transportation of any property or troops of the United States over any railroad which in whole or in part was con- structed by the aid of a grant of public land on the condition that such rail- road should be a public highway for the use of the Government of the United States free from toll or other charge, or upon any other conditions for the use of such road, for such transportation; nor shall any allowance be made for the transportation of officers of the Army over any such road when on duty and under orders as military officers of the United States. But nothing herein contained shall be construed as preventing any such railroad from bringing a suit in the Court of Claims for the charges for such transportation, and re- covering for the same if found entitled thereto by virtue of the laws in force prior to the passage of this act; provided that the claim for such charges shall not have been barred by the statute of limitations at the time of bringing the suit, and either party shall have the right of appeal to the Supreme Court of the United States; And provided further, That the foregoing provision shall not apply for the current fiscal year, nor thereafter, to roads where the sole con- dition of transportation is that the company shall not charge the Government higher rates than they do individuals for like transportation, and when the Quartermaster-General shall be satisfied that this condition has been faithfully complied with.— (18 Stat., 453-454, chap. 133.) Most of the acts of Congress which granted lands in aid of railroads provide that they shall be "free from toll or other charge upon the transportation of any property or troops of the United States." A few of the acts granting lands in aid of railroads provide that the grant is "subject to such regulations as Congress may impose restricting the charges for * * * Government transportation." (E. g., act July 27, 1866, sec. 11, 14 Stat., 292, 297). (U. S. v. Union Pac. R. Co., 249 U. S., 354, affirming 52 Ct. Cls., 226.) By act of February 28, 1920, section 208 (41 Stat., 464), it was provided that "any land grant railroad organized under the Act of July 28, 1866 (chapter 300) [14 Stat., 338], shall receive the same compensation for transporta- tion of property and troops of the United States 54641°— 22 75 1179 Aug. 15, 1876. Pt. S. STATUTES AT LARGE. body or detachment of soldiers, viz., discharged soldiers, discharged military prisoners, and re- jected applicants for enlistment; apj)licants for enlistment, provisionally accepted, out subject to final examination and not sworn in; retired enlisted men; and furlouehed soldiers en route back to their stations. (United States v. Union Pac. R. Co., 249 U. S., 354, affirming 52 Ct. Cls., 226.) as is paid to land grant railroads organized under the Land C.rant Act of March 3, 1863 [12 Stat., 772], and the Act of July 27, 1866 (chapter 278) [14 Stat., 292]." The term "troops of the United States" as used in land-grant acts in relation to transpor- tation for the Government does not embrace any of the following classes of persons, when traveling separately and not as part of a moving [1876, June 30. Mileage of Navy officers.] And so much of the act of Juno sixteenth, one thousand eight hundred and seventy-four, making ap- propriations for the support of the Army for the fiscal year ending June thir- tieth, one thousand eight hundred and seventy-five, and for other purposes, as provides that only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States while engaged on public business, as is applicable to officers of the Navy so engaged, is hereby repealed; and the sum of eight cents per mile shall be allowed such officers wliile so engaged, in lieu of their actual expenses. — (19 Stat., 65, chap. 159.) See note to section 1566, Revised Statutes. [1876, June 30. Increase of force at navy yards before elections.] And no increase of the force at any navy-yard shall be made at any time within sixty daj's next before any election to take place for President of the United States, or member of Congress, except when the Secretary of the Navy shall certify that the needs of the public service make such increase necessary at that time which certificate shall be immediately published when made. — (19 Stat., 69-70, chap. 159.) See note to section 1546, Revised Statutes. [1876, Aug. 15, sec. 3. Changes in grades of clerks; honorably discharged soldiers and sailors.] That w^henever, in the judgment of the head of any de- partment, the duties assigned to a clerk of one class can be as well performed by a clerk of a lower class or by a female clerk, it shall be lawful for him to dimin- ish the number of clerks of the higher grade and increase the nimiber of the olerks of the lower grade within the limit of the total appropriation for such clerical service : Provided, That in making any reduction of force in any of the executive departments, the head of such department shall retain those persons who may be equally qualified who have been honorably discharged from the militarj'^ or naval service of the United States, and the widows and orphans of deceased soldiers and sailors. — (19 Stat., 169, chap. 287.) See note to section 16G, Re^dsed Statutes, under "Increasing and diminishing clerks of different grades"; and see note to sec- tion 416, Re^•ised Statutes, under "Honor- ably discharged soldiers or sailors"; see also section 1754, Re\ised Statutes. [1876, Aug. 15, sec. 5. Employing clerks beyond legal allowance.] That the executive officers of the Government are hereby prohibited from employ- ing any clerk, agent, engineer, draughtsman messenger watchman, laborer, or other employee, in any of the executive departments in the city of Washington, or elsewhere beyond provision made by law, — (19 Stat., 169, chap. 287.) See act of August 5, 1882, section 4 (22 Stat., 255); and see section 3679, Re\ised Statutes, as to acceptance of voluntary services by the Government. [1876, Aug. 15, sec. 6. Political contributions ; offenses.] That all execu- tive ofiicers or employees of the United States not appointed by the President, 1180 Ft. S. STATUTES AT LARGE. Mar. 3, 1877. with the advice and consent of the Senate, are prohibited from requesting, giving to, or receiving from, any other officer or employee of the Government, any money or property or other thing of value for political purposes; and any such officer or employee, who shall offend against the provisions of this section shall be at once discharged from the service of the United States; and he shall also be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in a sum not exceeding five hundred dollars. — (19 Stat., 169, chap. 287.) See section 1546, Revised Statutes, and laws noted thereunder. [1876, Aug. 15. Artificial limbs to soldiers and sailors.] That every officer, soldier, seaman and marine, who, in the line of duty, in the military or naval service of the United States, shall have lost a limb, or sustained bodily injuries, depriving him of the use of any of his limbs, shall receive once every five years an artificial limb or appliance, or commutation therefor, as provided and limited by existing laws, under such regulations as the Surgeon-General of the Army may prescribe; and the period of five years shall be held to commence with the filing of the first application after the seventeenth day of June, in the year eighteen hundred and seventy. ■ Sec. 2. That necessary transportation to have artificial limbs fitted shall be furnished by the Quartermaster-General of the Army, the cost of which shall be refunded out of any money appropriated for the purchase of artificial limbs.— (19 Stat., 203-204, chap. 300.) See note to section 1176, Re\'ised Statutes. [1877, Mar. 3, sec. 5. Mail matter, official business, free of postage.] That it shall be lawful to transmit through the mail, free of postage, any letters, packages, or other matters relating exclusively to the business of the Govern- ment of the United States: Provided, That every such letter or package to entitle it to pass free shall bear over the words "Official business" an endorse- ment showing also the name of the Department, and, if from a bureau or office, the names of the Department and bureau or office, as the case may be, whence transmitted.— (19 Stat., 335-336, chap. 103.) A further provision of this section, relating to punishment for unlawful use of official envelopes, was expressly repealed by the Criminal Code, act of March 4, 1909, sec- tion 341 (35 Stat., 1153), and other pro- visions on the subject were embodied in section 227 of the same act (35 Stat., 1134). See notes to sections 388 and 398, Revised Statutes; and see note to next section of this act, set forth below. [1877, Mar. 3, sec. 6. Endorsement on official envelopes.] That for the purpose of carrying this act into effect, it shall be the duty of each of the Executive Departments of the United States to provide for itself and its sub- ordinate offices the necessary envelopes: and in addition to the endorsement designating the Department in which they are to be used, the penalty for the unlawful use of these envelopes shall be stated thereon. — (19 Stat., 336, chap. 103.) See note to preceding section, set forth above. section 3 (23 Stat., 158), which acts also This and the preceding Bection were extended contained other provisions on the subject to all officers of the United States, except of penalty envelopes. See also act of Members of Congress, by act of March 3, June 26, 1906 (34 Stat., 477), and see notes 1879, section 29 (20 Stat., 362), as amended to sections 388 and 398, Revised Statutes, and reenacted by act of July 5, 1884, [1877, Mar. 3. Rent of buildings, District of Columbia.] Hereafter no contract shall be made for the rent of any building,, or part of any building, 1181 June 14, 1878. I'l. .?. STATUTES AT LARdE. to bo used for tho purposes of the Government in the District of Cohimbia, until an nppropriution therefor shall have been made in terms by Congress, and that this clause be regarded as notice to all contractors or lessors of any such building or any part of building, — (19 Stat., 370, chap. 106.) See acta of August 5, 1882 (22 Stat., 241), and March .3, 1883 (22 Stat., 552): and see sec- tion 3679, Revised Statutes. A somewhat similar provision was contained in act of June 22, 1874 (18 Stat., 144). [1878, May 4. Secretaries and clerks at sea.] That on and after the first day of July, eighteen hundred and seventy-eight, there shall be no appoint- ments made from civil life of secretaries or clerks to the Admiral, or Vice- Admiral, when on sea service, commanders of squadrons, or of clerks to com- manders of vessels; and an officer not above the grade of lieutenant shall be detailed to perform the duties of secretary to the Admiral or Vice-Admiral, when on sea service, and one not above the grade of master to perform the duties of clerk to a rear-admiral or commander, and one not above the grade of ensign to perform the duties of clerk to a captain, commander, or lieutenant- commander when afloat. — (20 Stat., 50, chap. 91.) Grade of master is now lieutenant (junior grade). See note to section 1362, Revised htatutes. [1878, May 4. Sale of charts.] That all charts hereafter furnished to mariners or others not in the government service shall be paid for at the cost price of paper and printing paid by the government. — (20 Stat., 51, chap. 91.) See sections 432 and 433, Re\ised Statutes, and This provision was repeated in act of Febru- See notes to sections 1367 and 1556. Revised Statutes. notes thereto. ary 14, 1879, chapter 68 (20 Stat., 286). [1878, June 14, sec. 4. Claims under exhausted appropriations, report to Congress.] That so much of section five of tlie act approved June twentieth, eighteen hundred and seventy-four, as directs the Secretary of the Treasury at the beginning of each session to report to Congress with his annual estimates any balances of appropriations for specific objects affected by said section that may need to be reappropriated, be, and hereby is, repealed. And it shall be the duty of the several accounting-officers of the Treasury to continue to receive, examine, and consider the justice and validity of all claims under appropriations the balances of which have been exhausted or carried to the surplus fund under the provisions of said section tliat may be brought before them within a period of five years. And the Secretary of the Treasury shall report the amount due each claimant, at the commencement of each session, to the Speaker of the House of Representatives, who shall lay the same before Congress for consideration: Provided, That nothing in this act shall be con- strued to authorize the re-examination and payment of any claim or account which has been once examined and rejected, unless reopened in accordance with existing law. — (20 Stat., 130, chap. 191.) See acts of June 20, 1874, section 5 (18 Stat.. 110), and July 7. 1884 (23 Stat., 254), See also section 236, Revised Statutes, and note thoreto. [1878, June 14. Purchase of material for steam boilers.] That on and after the passage of this act, the Secretary of the Navy be, and he is hereby authorized to purchase at the lowest market price, such plate iron and other material as may enter into the construction of steam boilers for the Navy, with- out advertising for bids to furnish the same: Provided, That he shall cause to 1182 Pt. 3. STATUTES AT LARGE. June 19, 1878. be sent to tbo principal dealers and manufacturers of iron and such other materials as may be required specifications of the quality description and character of such iron and materials so required: And provided further, That such plate iron and materials shall be subjected to the same tests and inspection as now provided for and which inspection and tests shall be made publicly and in presence of such bidders or their authorized agents as may choose to attend at the making thereof.— (20 Stat., 253-254, Res. No. 30.) the purpose of testing the strength and vahie of iron, steel, and other metals, for constrtictive and mechanical purposes. Tests for steam] )oat boiler plates in such manner as prescri1)ed by the Board of Supervising Inspectors and approved by the Secretary of the Treasury, were provided for by section 4430, Revised Statutes. See sections 3718 and 3721, Re^dsed Statutes, and notes thereto. The reference to "this act" in the above resolu- tion was evidently intended to be "this resolution." ByactofMarchS, 1875, section 4 (18 Stat., 399), provision was made for the appointment of a board, consisting of officers of the Army and Na\'y, and three civilian experts, for [1878, June 18. Examinations for promotion ; facts once determined.] That hereafter in the examination of officers in the Navy for promotion no fact which occurred prior to the last examination of the candidate whereby he was promoted, which has been enquired into and decided upon, shall be again enquired into, but such previous examination, if approved, shall be conclusive, unless such fact continuing shows the unfitness of the officer to perform all his duties at sea. Sec. 2. The President of the United States may in cases wherein the rule herein prescribed has been violated order and direct the re-examination of the same.— (20 Stat., 165-166, chap. 267.) See note to section 1499, Revised Statutes. [1878, June 19. Expenditures in naval service; report of.] That from and after the passage of this act, it shall be the duty of the Secretary of the Treasury to transmit to Congress, annually, a tabular statement showing in detail the receipts and expenditures in the Naval service under each appropriation, as made up and determined by the proper officers of the Treasury Department, upon the accounts of disbursing-officers rendered for settlement. Sec. 2. There shall be appended to this statement an account of balances in the hands of disbursing agents at the close of each fiscal year, and a report of any amounts lost or unaccounted for by voucher. — (20 Stat., 167, chap. 311.) See note to section 429, Revised Statutes. [1878, June 19. "General account of advances;" use of "Pay of the Navy."] That the Secretary of the Navy be, and he is hereby, authorized to issue his requisitions for advances to disbursing officers and agents of the Navy under a "General account of advances", not to exceed the total appropriation for the Navy, the amount so advanced to be exclusively used to pay current obliga- tions upon proper vouchers and that "Pay of the Navy" shall hereafter be used only for its legitimate purpose, as provided by law. Sec. 2. That the amount so advanced be charged to the proper appro- priations, and returned to "General account of advances" by pay and counter warrant; the said charge, however, to particular appropriations, shall be limited to the amount appropriated to each. 1183 Feb. 26, 1879. rt. 3. STATUTES AT LARGE. Sec. 3. That the Fourth Auditor shall declare the sums due from the several special a})propriations upon complete voucliers, as heretofore, according to law; and lie shall adjust the said liabilities with the "General account of advances."— (20 Stat., 167-168, chap. 312.) See note to section 276, Revised Statutes; and see section 3678. Revised Statutes. [1878, June 20. Rates of advertising.] That hereafter all advertisements, notices, proposals for contracts, and all forms of advertising required by law for the several departments of the government may be paid for at a price not to exceed the commercial rates charged to private individuals, with the usual discounts; such rates to be ascertained from sworn statements to be furnished by the proprietors or publishers of the newspapers proposing so to advertise: * * * but the heads of the several departments may secure lower terms at special rates whenever the public interest requires it. — (20 Stat., 216, chap 359.) See sections 3826 and 3828, Revised Statutes; and see act of Januarj' 21, 1881 (21 Stat., 317). The clause omitted from tliis enactment was a temporaiy pro\ision relating to past trans- actions. [1879, Feb. 14. Sale of charts to persons not in government service.] That all charts hereafter furnished to mariners or others not in the government service shall be paid for at the cost price of paper and printing paid by the govern- ment.— (20 Stat., 286, chap. 68.) Similar provision was contained in act of May 4, 1878 (20 Stat., 51). See sections 432 and 433, Revised Statutes, and notes thereto, as to sale of charts to na\dgators; see also act of January 12, 1895, section 77 (28 Stat., 621). [1879, Feb. 14. " Small-stores fund."] That from and after the first day of April, eighteen hundred and seventy-nine, the value of issues of small-stores shall be credited to a fund to be designated as the ''small-stores fund", in the same manner as the value of the issues of clothing is now credited to the "clothing fund"; the resources of the fund to be used hereafter in the purchase of supplies of small-stores for issue. — (20 Stat., 288, chap. 68.) See act June 30, 1890 (26 Stat., 197), creating See note to section 3089, Revised Statutes. the "clothing and small-stores fund" in the Navy. [1879, Feb. 16, sec. 2. Acting assistant surgeons.] That from and after the passage of this act the Secretary of the Navy shall not appoint acting assistant surgeons for temporary service, as authorized by section fourteen hundred and eleven. Revised Statutes, except in case of war. — (20 Stat., 295, chap. 83.) See section 1411, Revised Statutes, and note thereto. [1879, Feb. 26. Details to educational institutions.] That for the purpose of promoting a knowledge of steam-engineering and iron-ship building among the young men of the United States, the President may, upon the application of an established scientific school or college within the United States, detail an officer from the Engineer Corps of the Navy as professor in such school or college: Provided, That the number of officers so detailed shall not at any time exceed twenty-five, and such details shall be governed by rules to be 1184 PL 3. STATUTES AT LARGE. Mar. 3, 1879. prescribed from time to time by the President : Aiid provided further, That such details may be withheld or withdrawn whenever, in the judgment of the President, the interests of the public service shall so require. — (20 Stat., 322- 323, chap. 105.) See note to section 1225, Revised Statutes. The Engineer Corps of the Navy was abolished, and the personnel thereof (on the active list) transferred to the line of the Naw by act of March 3, 1899 (30 Stat., 1004). 'See note to section 1390, Revised Statutes. See sections 1176-1178, Revised Statutes, and notes thereto. [1879, Mar. 3. Trusses for soldiers and sailors.] That section one of the act entitled ''An act to provide for furnishing trusses to disabled soldiers", approved May twenty-eighth, eighteen hundred and seventy two, be, and the same is hereby, amended so that said section shall read as follows : That every soldier of the Union Army, or petty-officer, seaman, or marine in the naval service, who was ruptured while in the line of duty during the late war for the suppression of the rebellion, or who shall be so ruptured thereafter in any war, shall be entitled to receive a single or double truss of such style as may be designated by the Surgeon-General of the United States Army as best suited for such disability; and whenever the said truss or trusses so furnished shall become useless from wear, destruction, or loss, such soldier, petty-officer, seaman, or marine shall be supplied with another truss on making a like applica- tion as provided for in section two of the original act of which this is an amend- ment: Provided, That such application shall not be made more than once in two years and six months: And 'provided further, That sections two and three of the said act of May twenty-eighth, eighteen hundred and seventy-two, shall be construed so as to apply to petty-officers, seamen, and marines of the naval service, as well as to soldiers of the Army. — (20 Stat., 353, chap. 173.) Section one of the act of May 28, 1872, referred to above, was incorporated in the Re\'ised Statutes as section 117G. Sections 2 and 3 of the act of IMay 28, 1872, referred to above, were incorporated in the Revised Statutes as sections 1177 and 1178. [1879, Mar. 3, sec. 29. Penalty envelopes, authority to use; endorsements on; registered mail.] The provisions of the fifth and sixth section of the act entitled ''An act establishing post-routes, and for other purposes" approved March third, eighteen hundred and seventy-seven, for the transmission of offi- cial mail-matter, be, and they are hereby, extended to all officers of the United States Government, not including members of Congress, the envelopes of such matter in all cases to bear appropriate indorsements containing the proper designation of the office from which or officer from whom the same is trans- mitted, with a statement of the penalty for their misuse. And the provisions of said fifth and sixth sections are hereby likewise extended and made appli- cable to all official mail-matter of the Smithsonian Institution : Provided, That any Department or officer authorized to use the penalty envelopes may inclose them with return address to any person or persons from or through whom official information is desired, the same to be used only to cover such official information, and indorsements relating thereto: Provided further, That any letter or packet to be registered by either of the Executive Depart- ments, or Bureaus thereof, or by the Agricultural Department, or by the Public Printer, may be registered without the payment of any registry fee; 1185 June 8, 1880. Pt. S. STATUTES AT LARGE. and any part-paid letter or packet addressed to either of said Departments or ikireaus may be delivered free; but where there is good reason to believe the omission to prepay the full postage thereon was intentional, such letter or packet shall be returned to the sender: Provided further, That this act shall not extend or apply to pension agents or other officers who receive a fixed allowance as compensation for their services, including expenses of postages. And sec- tion thirty-nine hundred and fifteen of the Revised Statutes of the United States, so far as the same relates to stamps and stamped envelopes for official purposes, is hereby repealed. — (20 Stat., 362, chap. 180; 23 Stat., 158, chap. 234.) This section was expressly amended and re- also notes to sections 388 and 398, Revised enacted to read as above by act of July 5, Statutes, and Criminal Code, act of March 1884, section 3 (23 Stat., 158). 4, 1909, section 227 (35 Stat.. 1134). See act of March 3, 1877, sections 5 and 6, (19 See act of March 3, 1883, section 2 (22 Stat., Stat., 335-33G), and notes thereto; see 563), and note thereto. [1879, June 14. Vessels for quarantine.] That the Secretary of the Navy be, and he is hereby, authorized, in his discretion, at the request of the National Board of Health, to place gratuitously, at the disposal of the commissioners of quarantine, or the proper authorities at any of the ports of the United States, to be used by them temporarily for quarantine purposes, such vessels or hulks belonging to the United States as are not required for other uses of the national government, subject to such restrictions and regulations as the said Secretary may deem necessary to impose for the preservation thereof. — (21 Stat., 50, Res. No. 6.) tional quarantine powers and imposing additional duties upon the Marine Hospital Service," now "Public Health Service." The act of March 3, 1879 (20 Stat., 484), which established the "National Board of Health," was repealed by act of February 15, 1893, section 9 (27 Stat., 452), "granting addi- [1880, May 31. Vessels of Fish Commission.] And the Secretary of the Navy is hereby directed to place the vessels of the United States Fish Commis- sion on the same footing with the Navy Department as those of the United States Coast and Geodetic Survey. — (21 Stat., 151, chap. 113.) See sections 4397, 4684-4688, Revised Statutes. By act of July 7, 1884 (23 Stat., 239), it was enacted that the above provision "shall be construed as having given to the United States Commissioner of Fish and Fisheries, to July first, eighteen hundred and eighty- four, but no longer, the same authority m regard to allowances for subsistence to officers and men of the Navy serving in the operations of the United States Commis- sioner of Fish and Fisheries as is given to the Secretary of the Treasury in regard to service of officers and men of the Navy in the Coast Survey by section forty-six hun- dred and eighty-eight of the ReA^sed Statutes of the United States." As to the authorized number of enlisted men in the Navy, including those serving in the Fish Commission, see laws noted under section 1417, Revised Statutes. [1880, June 8. Judge Advocate General.] That the President of the United States be, and he is hereby, authorized to appoint, for the term of four years, by and with the advice and consent of the Senate, from the officers of the Navy or the Marine Corps, a judge-advocate-general of the Navy, with the rank, pay, and allowances of a captain in the Navy or a colonel in the Marine Corps, as the case may be. And the office of the said judge-advocate-general shall be in the Navy Department, where he shall, under the direction of the Secretary of the Navy, receive, revise, and have recorded the proceedings of all courts- martial, courts of inquiry, and boards for the examination of officers for retire- ment and promotion in the naval service, and perform such other duties as 1186 Pt. 3. STATUTES AT LARGE. Aug. 5, 1882. have heretofore been performed by the sohcitor and naval judge-advocate- general. — (21 Stat., 164, chap. 129.) It was again amended by act of July 1, 1918 (40 Stat., 717), under wluch the Judge Advocate General is to have the same rank, pay and allowances as the Judge Advocate General of the Army. As to the duties of the Judge Advocate General, see act of February 16, 1909, section 6 (35 Stat., 621), and section 1624, Revised Statutes, article 53, under "Action of the Judge Advocate General." See note to sections 349, 419, and 421, Revised Statutes. This act was amended by act of June 5, 1896 (29 Stat., 251), by inserting therein, in lieu of the words, "with the rank, pay, and allowances of a captain in the Na\^, or a colonel in the Marine Corps, as the case may be." the words "with the rank and highest pay of a captain fin] the Navy, or the rank, pay, and allowances of a colonel in the Marine Corps, as the case may be," with a proviso that said amendment shall take effect from July 19, 1892, ' ' the date on which the present incumbent entered on duty." [1881, Jan. 21. Advertising in District of Columbia.] That all advertising required by existing laws to be done in the District of Columbia by any of the departments of the government shall be given to one daily and cne weekly newspaper of each of the two principal political parties and to one daily and one weekly neutral newspaper: Provided, That the rates of compensation for such service shall in no case exceed the regular commercial rate of the news- papers selected; nor shall any advertisement be paid for unless published in accordance with section thirty-eight hundred and twenty-eight of the Revised Statutes. Sec. 2. All laws or parts of laws inconsistent herewith are hereby repealed. — (21 Stat., 317, chap. 25.) See sections 3826 and 3828, Revised Statutes, and act of June 20, 1878 (20 Stat., 216). [1881, Jan. 31, sec. 2. Foreign decorations, etc., not to be worn.] That no decoration, or other thing, the acceptance of which is authorized by this act, and no decoration heretofore accepted, or which may hereafter be accepted, by consent of Congress, by an}- officer of the United States, from any foreign government, shall be publicly shown or exposed upon the nerson of the officer so receiving the same. — (21 Stat., 604, chap. 32.) [1881, Jan. 31, sec. 3. Foreign decorations, etc., tendered through State Department.] That hereafter any present, decoration, or other thing, which shall be conferred or presented by any foreign government to any officer of the United States, civil, naval, or military, shall be tendered through the Department of State, and not to the individual in person, but such present, decoration, or other thing shall not be delivered by the Department of State unless so authorized by act of Congress. — (21 Stat., 604, chap. 32.) See Constitution, Article I, section 9, clause 8, and note thereto; see also, act of July 9, 1918 (40 Stat., 872). The first section of this act authorized certain officers, designated by name, to accept particular decorations and presents from foreign governments. [1882, Aug. 5. Rent of buildings. District of Columbia.] And where build- ings are rented for public use in the District of Columbia, the executive depart- ments are authorized, whenever it shall be advantageous to the public interest, to rent others in their stead: Provided, That no increase in the number of buildings now in use, nor in the amounts paid for rents, shall result therefrom. — (22 Stat., 241, chap. 389.) See acts of March 3, 1877 (19 Stat., 370), and March 3, 1883 (22 Stat., 552); and see section 3679, Revised Statutes. 1187 Aug. 5, 1882. Pt. S. STATUTES AT LARGE. [1882, Aug. 6, sec. 4. Number and pay of employees limited; use of con- tingent appropriations ; details from outside of District of Columbia.] That no civil officer, clerk, draughtsman, copyist, messenger, assistant messenger, mechanic, watchman, laborer, or other employee shall after the first day of October next be employed in any of the executive departments, or subordinate bureaus or offices thereof at the seat of government, except only at such rates and in such numbers, respectively, as may be specifically appropriated for by Congress for such clerical and other personal services for each fiscal year; and no civil officer, clerk, draughtsman, copyist, messenger, assistant messenger, mechanic, watchman, laborer, or other employee shall hereafter be employed at the seat of government in any executive department or subordinate bureau or office thereof or be paid from any appropriation made for contingent ex- penses, or for any specific or general purpose, unless such employment is au- thorized and payment therefor specifically provided in the law granting the appropriation, and then only for services actually rendered in connection with and for the purposes of the appropriation from which payment is made, and at the rate of compensation usual and proper for such services, and after the first day of October next section one hundred and seventy-two of the Revised Statutes, and all other laws and parts of laws inconsistent with the provisions of tliis act, and all laws and parts of laws authorizing the employment of offi- cers, clerks, draughtsmen, copyists, messengers, assistant messengers, mechanics, watchmen, laborers, or other employees at a different rate of pay or in excess of the numbers authorized by appropriations made by Congress, be and they are hereby, repealed; and thereafter all details of civil officers, clerks, or other subordinate employees from places outside of the District of Columbia for duty within the District of Columbia, except temporary details for duty con- nected with their respective offices, be, and are hereby, prohibited; and there- after all moneys accruing from lapsed salaries, or from unused appropriations for salaries, shall be covered into the Treasury: * * * ^^^ nothmg herein shall be construed to repeal or modify section one hundred and sixty-six of the Revised Statutes of the United States.— (22 Stat., 255-256, chap. 389.) The portion omitted from this section con- sisted of temporary provisos. See sections 166, 169, 172, 416, and 3682, Revised Statutes; see also acts of August 15, 1876, section 5 (19 Stat., 169), and May 30, 1908 (35 Stat., 505). Punishment for violation of this section was prescribed by act of August 23, 1912, sec- tion 5 (37 Stat.,_414). Restrictions on details to departments from out- side of the District are contained in act of June 22, 1906, section 6 (34 Stat., 449). [1882, Aug. 5. Naval cadets; appointed on graduation; discharge of sur- plus graduates; special course of training.] That hereafter there shall be no appointments of cadct-midsliipmen or cadet-engineers at the Naval Academy, but in lieu thereof naval cadets shall be appointed from each Congressional district and at large, as now provided by law for cadet-midshipmen, and all the undergraduates at the Naval Academy shall hereafter be designated and called ''naval cadets;" and from those who successfully complete the six years' course appointments shall hereafter be made as it is necessary to fill vacancies in the lower grades of the line and Engineer Corps of the Navy and of the Marine Corps: * * * ^nd if there be a surplus of graduates, those who do not receive such appointment shall be given a certificate of graduation, an honorable discharge, and one year's sea-pay, as now provided by law for « 1188 Pt. S. STATUTES AT LARGE. Aug. 5, 1882. cadet-midshipmen; and so much of section fifteen hundred and twenty-one of the Revised Statutes as is inconsistent herewith is hereby repealed. That any cadet whose position in his class entitles him to be retained in the service may, upon his own application, be honorably discharged at the end of four years' course at the Naval Academy, with a proper certificate of graduation. That the Secretary of the Navy may prescribe a special course of study and training at home or abroad for any naval cadet. — (22 Stat., 285, chap. 391.) As to academic course, see section 1520, Re- vised Statutes, and note thereto. As to discharge of surplus graduates, see note to section 1521, Revised Statutes. See generally sections 1512-1528, Revised Statutes, and notes thereto. As to change in designation of naval cadets, see note to section 1512, Revised Statutes. As to appointments on graduation, see note to section 1521, Revised Statutes. [1882, Aug. 5. No promotion on retired list.] Hereafter there shall be no promotion or increase of pay in the retired list of the Navy but the rank and pay of officers on the retired list shall be the same that they are when such officers shall be retired.— (22 Stat., 286, chap. 391.) See notes to sections 1461, 1481, 1588, and 1591, Revised Statutes. [1882, Aug. 5. Officers morally unfit for promotion.] That whenever on an inquiry had pursuant to law, concerning the fitness of an officer of the Navy for promotion, it shall appear that such officer is unfit to perform at sea the duties of the place to which it is proposed to promote him, by reason of drunkenness, or from any cause arising from his own misconduct, and having been informed of and heard upon the charges against him, he shall not be placed on the retired- list of the Navy, and if the finding of the board be approved by the President, he shall be discharged with not more than one year's pay. — (22 Stat., 286, chap. 391.) See note to section 1456, Revised Statutes. [1882, Aug. 5. Expenses of officers traveling abroad.] And officers of the Navy traveling abroad under orders hereafter issued shall travel by the most du"ect route, the occasion and necessity for such order to be certified by the officer issuing the same; and shall receive, in lieu of the mileage now allowed by law, only their actual and reasonal)le expenses, certified under their own signatures and approved by the Secretary of the Navy. — (22 Stat., 286-287, chap. 391.) See note to section 1566, Revised Statutes. [1882, Aug. 5. Navy yard at Washington; use as a manufacturing yard.] That the navy-yard at Wasliington, District of Columbia, may, at the discre- tion of the Secretary of the Navy, be maintained as a manufacturing yard for the Bureaus of Equipment and Recruiting and Ordnance, and that work may be continued in the rope-walk in the Boston navy-yard: And 'provided further, That nothing herein shall be held to interfere with the permanent improvement of any navy-yard as now authorized by law, or the expenditure for such pur- pose of any money appropriated by Congress therefor. — (22 Stat., 289, chap. 391.) See note to section 419, Revised Statutes, as to changes in designation and duties of bu- reaus in the Navy Department. ments as to suspension of work at navy- yards during the then current fiscal year, and the closing of yards if necessary to The above were provisos following require- prevent deficiencies during said year. 1189 Mar. 3, 1883. Pi. 3. STATUTES AT LARGE. [1882, Aug. 5, sec. 2. Old material to be used; if not useful, to be sold; annual report to Congress.] And no old material of the Navy shall hereafter be sold or exchanged by the Secretary of the Navy, or by any officer of the Navy, which can be profitably used by reworking or otherwise in the construc- tion or repair of vessels, their machinery, armor, armament, or equipment; but the same shall be stored and preserved for future use. And when any such old material can not be profitably used as aforesaid, the same shall be appraised and sold at public auction after public notice and advertisement shall have been given according to law under such rules and regulations and in such manner as the said Secretary may direct. The net proceeds arising from the sales of such old materials shall be paid into the Treasury. It shall be the duty of the Secretary of the Navy annually to report in detail to Congress, in his annual report, the proceeds of all sales of materials, stores, and supplies, made under the provisions of this act, and the expenses attending such sales. — (22 Stat., 296, chap. 391.) See sections 1541, 3618, and 3692, Revised Statutes; see also, acts of June 30, 1890 (26 Stat., 194), and March 2, 1905 (33 Stat., 841). [1882, Aug. 5, sec. 2. Examination of vessels; names stricken from Regis- ter ; report to Congress.] It shall also be the duty of the Secretary of the Navy, as soon as may be after the passage of this act, to cause to be examined by competent boards of officers of the Navy, to be designated by him for that duty, all vessels belonging to the Navy not in actual service at sea, and vessels at sea as soon as practicable after they shall return to the United States, and hereafter all vessels on their return from foreign stations, and all vessels in the United States as often as once in three years, when practicable; and said boards shall ascertain and report to the Secretary of the Navy, in writing, which of said vessels are unfit for further service, or, if the same are unfinished in any navy-yard, those which can not be finished without great and disproportionate expense, and shall in such report state fully the grounds and reasons for their opinion. And it shall be the duty of the Secretary of the Navy, if he shall concur in opinion with said report, to strike the name of such vessel or vessels from the Navy Register and report the same to Congress. — (22 Stat., 296-297, chap. 391.) See act of March 3, 1883, section 5 (22 Stat., 599-600), as to sale of vessels stricken from the Navy Register. [1883, Mar. 3. Masters to be junior grade of lieutenants.] For the pay of * * * one hundred masters, the title of which grade is hereby changed to that of lieutenants, and the masters now on the list shall constitute a junior grade of, and be commissioned as, lieutenants, having the same rank and pay as now provided by law for masters, but promotion to and from said grade shall be by examination as provided by law for promotion to and from the grade of master.— (22 Stat., 472, chap. 97.) See note to section 1362, Revised Statutes. [1883, Mar. 3. Midshipmen to be junior grade of ensigns.] Ninety-one midshipmen, the title of which grade is hereby changed to that of ensign, and the midshipman now on the list shall constitute a junior grade of, and be 1190 See also section 1541, Revised Statutes, and note thereto. Pt. 3. STATUTES AT LARGE. Mar. 3, 18«3. commissioned as, ensigns, having the same rank and pay as now provided by law for midshipmen, but promotions to and from said grade shall be under the same regulations and requirements as now provided by law for promotion to and from the grade of midshipmen. — (22 Stat., 472, chap. 97.) See note to section 1362, Revised Statutes, and see act of June 26, 1884 (23 Stat., 60). [1883, Mar. 3. Credit for all service in Army and Navy.] And all ofFicer.s of the Navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer Army or Navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous and in the regular Navy in the lowest grade having graduated pay held by such officer since last entering the service: Provided, That nothing in this clause shall be so construed as to authorize any change in the dates of commission or in the relative rank of such officers: Provided further, That nothing herein contained shall be so construed as to give any additional pay to any such officer during the time of his service in the volunteer army or navy. — (22 Stat., 473, chap. 97.) See notes to sections 1443, 1556, and 1600, A somewhat similar provision was contained Revised Statutes; and see act of June 10, in act of August 5, 1882 (22 Stat., 287). 1896 (29 Stat., 361). [1883, Mar. 3. Life saving dress, use in the Navy.] The Secretary of the Navy is authorized and empowered, within his discretion, to constitute and introduce, as a portion of the equipment of the Navy, the life saving dress adopted and approved by the Life Saving Service of the United States. — (22 Stat., 475, chap. 97.) [1883, Mar. 3, sec. 2. Employment on shore duty.] That hereafter no officer of the Navy shall be employed on any shore duty, except in cases specially provided by law, unless the Secretary of the Navy shall determine that the employment of an officer on such duty is required by the public interests, and he shall so state in the order of employment, and also the duration of such service, beyond which time it shall not continue. — (22 Stat., 481, chap. 97.) A similar provision was contained in act of August 5, 1882, section 3 (22 Stat., 297). This provision is expressly modified by act of July 19, 1892 (27 Stat., 245)_. See note to section 1571, Revised Statutes, as to sea service. [1883, Mar. 3. Rented buildings, report to Congress.] It shall be the duty of the heads of the several executive departments to submit to Congress each year, in the annual estimates of appropriations, a statement of the number of buildings rented by their respective departments, the purposes for which rented, and the annual rental of each. — (22 Stat., 552, chap. 128.) See also sections 429 and 430, Revised Statutes, and note thereto. See acts of March 3, 1877 (19 Stat., 370), and July 16, 1892 (27 Stat., 199), as amended by act of May 1, 1913, section 3 (38 Stat. , 3). [1883, Mar. 3, Sec. 2. Penalty envelopes to be inclosed with letters to Members of Congress, etc.] And it shall be the duty of the respective depart- ments to inclose to Senators, Representatives and Delegates in Congress, in all official communications requiring answers, or to be forwarded to others, penalty envelopes, addressed as far as practicable, for forwarding or answering such official correspondence. — (22 Stat., 563, chap. 128.) 1191 Mar. 3, 1883. Pt. S. STATUTES AT LARGE. A portion of this section, omitted above, pro- vided for requisitions to be made upon the Postmaster vieneral by heads of depart- ments for the necessary amount of official postage stamps for the use of their depart- ments. See act of March .3, 1879, section 29 (20 Stat.. 3G2), and note thereto, as to use of penalty envelopes by all officero of the Govern- ment, "not including Members of Con- gress." By act of April 28, 1904, section 7 (33 Stat., 441), Members of CongTess were given the })rivilege of transmitting correspondence free of postage. [1883, Mar. 3, sec. 5. Sale of vessels.] It shall be the duty of the Secretary of the Navy to cause to be appraised, in such manner as may seem best, all vessels of the Navy which have been stricken from the Navy Register under the provisions of the act making appropriations for the naval service for the fiscal year ending June thirtieth, eighteen hundred and eighty-three, and for other purposes, approved August fifth, eighteen hundred and eighty-two. And if the said Secretary shall deem it for the best interest of the United States to soil any such vessel or vessels, he shall, after such appraisal, advertise for sealed proposals for the purchase of the same, for a period not less than three months, in such newspapers as other naval advertisements are published, setting forth the name and location and the appraised value of such vessel, and that the same will be sold, for cash, to the person or persons or corporation or cor- porations offering the highest price therefor above the appraised value thereof; and such proposals shall be opened on a day and hour and at a place named in said advertisement, and record thereof shall be made. The Secretary of the Navy shall require to accompany each bid or proposal a deposit in cash of not less than ten per centum of the amount of the offer or proposal, and also a bond, with two or more sureties to be approved by him, conditioned for the payment of the remaining ninety per centum of the amount of such offer or proposal within the time fixed in the advertisement. And in case default is made in the payment of the remaining ninety per centum, or any part thereof, the Secretary, within the prescribed time thereof, shall advertise and resell said vessel under the provisions of this act. And in that event said cash deposit of ten per centum shall be considered as forfeited to the government, and shall be applied, first, to the payment of all costs and expenditures attend- ing the advertisement and resale of said vessel; second, to the payment of the difference, if any, between the first and last sale of said vessel; and the balance, if any, shall be covered into the Treasury: Provided, however, That nothing herein contained shall be construed to prevent a suit upon said bond for breach of any of its conditions. Any vessel sold under the foregoing pro- visions shall be delivered to the purchaser upon the full payment to the Secre- tary of the Navy of the amount of such proposal or offer; and the net proceeds of such sale shall be covered into the Treasury. But no vessel of the Navy shall hereafter be sold in any other manner than herein provided, or for less than such appraised value, unless the President of the United States shall otherwise direct in writing. — (22 Stat., 599-600, chap. 141.) See act of August 5, 1882, section 2 (22 Stat., 296-297); see also, section 1541, Revised Stat- utes, and note thereto. [1883, Mar. 3. Patents to officers of United States.] The Secretary of the Interior and the Commissioner of Patents are authorized to grant any officer of the government, except officers and employees of the Patent Office, a patent for any invention of the classes mentioned in section forty eight hundred and 1192 PL 3. STATUTES AT LARGE. July 7, 1884. eighty six of the Revised Statutes, when such invention is used or to be used in the public service, without the payment of any fee: Provided, That the apphcant in his application shall state that the invention described therein, if patented, may be used by the government or any of its officers or employees in the prosecution of work for the government, or by any other person in the United States, without the payment to him of any royalty thereon, which stipulation shall be included in the patent. — (22 Stat., 625, chap. 143.) See section 4894, Revised Statutes, and note thereto. [1884, June 26. Ensigns commissioned from graduates of Naval Academy; grade of junior ensign abolished.] That from and after the passage of this act all graduates of the Naval Academy who are assigned to the line of the Navy, on the successful completion of the six years course, shall be commissioned ensigns in the Navy. Sec. 2. That the grade of junior ensign in the Navy is hereby abolished and the junior ensigns now on the list shall be commissioned ensigns in the Navy: Provided, That nothing in this act shall be so construed as to increase the number of officers in the Navy now allowed by law. Sec. 3. That all acts and parts of acts inconsistent with the provisions of this act be and the same are hereby repealed. — (23 Stat., 60, chap. 122.) See note to section 1521, Revised Statutes, as to appointments to graduates of Naval Academy. See act of Mar. 3, 1883 (22 Stat.. 472), and note to section 1362, Revised Statutes, as to grade of junior ensign. [1884, July 6, Sec. 3. Sale of smooth-bore cannon for experimental purposes.] That the Secretary of War and the Secretary of the Navy are hereby authorized to sell to projectors of methods of conversion, for experimental purposes only, any smooth-bore cannon on hand required by them, at prices which shall not be less than have been received from auction sales for such articles, and deliver the same, at the cost of the Government, at the nearest convenient place for shipment or pubhc transportation; the cost of delivery to be deducted from the proceeds of sales, and the balance to be covered into the Treasury of the United States.— (23 Stat., 159, chap. 235.) See notes to sections 161, 418, and 1541, Revised Statutes. [1884, July 7. Report to Congress of claims allowed.] That the Secretary of the Treasury shall, at the commencement of each session of Congress, report the amount due each claimant whose claim has been allowed in whole or in part to the Speaker of the House of Representatives and the presiding officer of the Senate, who shall lay the same before their respective Houses for con- sideration. — (23 Stat., 254, chap. 334.) See acts of June 20, 1874, section 5 ( 18 Stat., 110), and June 14, 1878, section 4 (20 Stat., 130). [1884, July 7. Estimates, how submitted to Congress.] And hereafter all estimates of appropriations and estimates of deficiencies in appropriations intended for the consideration and seeking the action of any of the committees of Congress shall be transmitted to Congress through the Secretary of the Treasury, and in no other manner; and the said Secretary shall first cause the same to be properly classified, compiled, indexed, and printed, under the 1193 May 20, 1886. I't. .i. STATUTES AT LARGE. supervision of the chief of the division of warrants, estimates, and appro- priations of liis Department. — (23 Stat., 254, chap. 334.) See Poctioiis IliO aiul 36(59, Revised Statutps, and notos thereto. [1885, Jan. 6. Holidays, per diem employees.] That the employees of the Navy Yard, Ciovernment Printing Olhce, Jiureau of Printing and Engraving, and all other per diem employees of the Government on duty at Waslnngton, or elsewhere in the United States, shall be allowed the following holidays, to wit : The first day of January, the twenty-second day of February, the fourth day of July, the twenty-fifth day of December, and such days as may be designated by the President as days for national thanksgiving, and shall receive the same pay as on other days. — (23 Stat., 516, Res. No. 5.) See note" to section 1545, Revised Statutes. [1885, Jan. 30. Rations, enlisted men and naval cadets.] That all enlisted men and boys in the Navy, attached to any United States vessel or station and doing duty thereon, and naval cadets, shall be allowed a ration, or com- mutation thereof in money, under such limitations and regulations as the Secretary of the Navy may prescribe. — (23 Stat., 291, chap. 43.) See sections 1577-1579, Revised Statutes, and notes thereto, relating to rations. See section 1512, Revised Statutes, and note thereto, as to change in designation of "naval cadets." [1885, Jan. 30. Commutation for forage.] Marine Corps. * * * That no commutation for forage shall be paid. — (23 Stat., 294, chap. 43.) See section 1612, Revised Statutes, and note thereto. [1885, Jan. 30, Sec. 3. Civilians employed on clerical duty under naval appropriations; annual report and estimates.] That the Secretary of the Navy is hereby directed to report to Congress, at its next and each regular session thereafter, the amount expended during the prior fiscal year, from the appropriations for the pay of the Navy, Bureaus of Navigation, Ordinance, Equipment and Recruiting, Yards and Docks, Medicine and Surgery, Pro- visions and Clothing, Construction and Repair, and Steam-Engineering, for civilians employed on clerical duty, or in any other capacity than as ordinary mechanics and workingmen, and to submit, under the estimates for pay of the Navy and for the respective Bureaus enumerated above, specific estimates for such civilian employees for the fiscal year eighteen hundred and eighty- seven, and each fiscal year thereafter. — (23 Stat., 295, chap. 43.) See note to section 419, Revised Statutes, as to changes in designation of bureaus in the Navy Department. [1886, May 20. Naval Academy, instructions as to nature and effects of alcoholic drinks, etc.] That the nature of alcoholic drinks and narcotics, and special instructions as to their effects upon the human system, in connection with the several divisions of the subject of physiology and hygiene, shall be included in the branches of study taught in the common or public schools, and in the Military and Naval Schools, and shall be studied and taught as thor- oughly and in the same manner as other like required branches are in said schools, by the use of text-books in the hands of pupils where other branches are thus studied in said schools, and by all pupils in all said schools throughout 1194 See notes to sections 416, 429, and 430, Revised Statutes. Pt. S. STATUTES AT LARGE. Aug. 3, 1886. the Territories, in the Military and Naval Academies of the United States, and in the District of Columbia, and in all Indian and colored schools in the Terri- tories of the United States. Sec. 2. That it shall be the duty of the proper officers in control of any school described in the foregoing section to enforce the provisions of this act; and any such officer, school director, committee, superintendent, or teacher who shall refuse or neglect to comply with the requirements of this act, or shall neglect or fail to make proper provisions for the instruction required and in the manner specified by the first section of this act, for all pupils in each and every school under his jurisdiction, shall be removed from office, and the vacancy filled as in other cases. — (24 Stat., 69, chap. 362.) See sections 1511-1528, Revised Statutes, as to Naval Academy. [1886, July 26. Tests of cannon for the Navy.] One or more rifled cannon of each type constructed at the cost of the United States for the Navy shall be publicly subjected to the proper test for endurance including such rapid firing as a like gun would be subjected to in battle. This test shall be under the direction and to the satisfaction of the Secretary of the Navj", and if such guns do not prove satisfactory, the type they represent shall not be put in use in the naval service. — (24 Stat., 151, chap. 781.) A similar provision with relation to the Army, contained in an act approved July 5, 1884 (23 Stat., 159). was repealed by act of March 3, 1921, section 7 (41 Stat., 1352). [1886, July 26, sec. 2. Unexpended balances of appropriations.] All balan- ces of moneys appropriated for the pay of the Navy or pay of the Marine Corps, for any year existing after the accounts for said year shall have been settled shall be covered into the Treasury. — (24 Stat., 157, chap. 781.) See sections 250, 3689-3691, Revised Statutes. and notes thereto; see also acts of June 20. 1874, section 5 (18 Stat., 110), and August 24, 1912, section 7 (.37 Stat., 487). [1886, Aug. 3, sec. 2. Naval construction; steel of domestic manufacture to be used ; etc.] That in the construction of all naval vessels the steel material shall be of domestic manufacture, and of the quality and characteristics best adapted to the various purposes for which it may be used, in accordance with specffications approved by the Secretary of the Navy. — (24 Stat., 215, chap. 849; 30 Stat., 390, chap. 234.) See section 3728, Revised Statutes. This section was expressly amended and re- enacted to read as above by act of May 4, 1898 (30 Stat., 390). As originally enacted, this section and the other sections of said act of August 3, 1886 (24 Stat., 215-217), read as follows: '•'That the President is hereby authorized to have constructed, as hereinafter provided — "First. Two sea-going double-bottomed ar- mored vessels of about six thousand tons dis- placement, designed for a speed of at least six- teen knots an hour, with engines ha-ving all necessary appliances for working under forced draught, and costing, including engines and machinery and excluding armament, not more than two million five hundred thousand dollars each. Said vessels shall have each a com- plete torpedo outfit and be armed in the most effective manner. "Second. One protected double-bottomed cruiser of not less than three thousand five hun- dred nor more than five thousand tons displace- ment, designed to have the liighest practicable speed and furnished with the best type of mod- em engines, furnished with necessary appli- ances for working under forced draught. Said vessel shall cost, including engines and ma- chinery and excluding armament, not exceed- ing one million five hundred thousand dollars. "Tliird. One first class torpedo-boat, costing in the aggregate not more than one hundred thousand dollars. "Sec 2. That the vessels hereinbefore au- thorized to be constructed shall be built of steel of domestic manufacture, having a tensile strength of not less than sixty thousand pounds per square inch, and an elongation in eight inches of not less than twenty-five per centum. "Sec. 3. That the President is hereby author- ized to direct the completion, as hereinafter pro- vided, of the double-turreted monitors Puritan, Amphitrite, Monadncck, and Terror, at a total cost, exclusive of armament, not to exceed 54641°— 22- re 1195 Aug. 3, 1886. I't. 3. STATUTES AT LARGE. throe million one hundred and seventy-eight thousand and forty-six dollars. "Sec. 4. That the armor used in constructing said armored vessels and for completing said monitors shall he of the host ol)tainable quality and of domestic manufacture, provided con- tracts for furnishing the same in a reasonable time, at a rea^souahle price, and of the required quality can he made w-ith responsible parties. Such armor shall be accepted only after passing such tests as shall l)e prescribed by the Secre- tary of the Navy and iiLserted in the contracts. '' Sec. 5. That the Secretary of the Navy shall cause one or more of the new vessels herein- before provided for to be constructed and one or more of the said monitors to be completed in one or more of the navy-yards of the United States; and if he shall be unable to contract vrith responsible parties to construct or com- plete, at reasonable prices, all or any of the vessels hereinbefore provided for, he shall cause the same to be constructed or completed in such of the navy-yards of the United States as may be best adapted thereto. "Sec. 6. That the engines, boilers, and ma- chinery of all the new vessels provided for by this act shall be of domestic manufacture and procured by contract, unless the Secretary of the Na\y shall be unable to obtain the same at fair prices, in which case he may construct the same, or any portion thereof, in the navy-yards of the United States: Provided, That the Secre- tary of the Navy may purchase abroad only such shafting as it may be impossible to obtain in the Umted States in time for use in the con- struction of the vessels herein provided for. "Sec 7. That the Secretary of the Navy shall not contract for the construction or completion of any of said vessels, or of their engines, ma- chinery, or boilers, until drawings and specifi- cations of the same shall have been provided or adopted by him; and after said drawings and specificationsshall have been pro\'ided, adopted, and approved as aforesaid, and work shall have been commenced on any contract made there- for, such plans and specifications shall not be changed in any respect when the cost of such change in the execution of the work exceeds five hundred dollars, except upon the written order of the Secretary or Acting Secretary of the Navy; and if changes are thus made, the actual cost thereof and the damage caused thereby shall be ascertained, estimated, and determined by a board of naval ofiicers to be provided for in the contract; and in any contract made pur- suant to this act it shall be provided in the terms thereof that the contractor shall be bound by the determination of said board, or a majority thereof, as to the amount of increase or dimin- ished compensation said contractor shall be entitled to receive, if any, in consequence of such change or changes. In every contract to be made under this act there shall be prescribed a period within which the work proAaded for in said contract, or specified portions thereof, shall be completed, and the completion of such work within the periods prescribed shall be insured by penal provisions. For the construction or completion of such vessels hereinbefore pro- xdded for as the Secretary of the Navy shall propose to have constructed or completed by contract, as well as also for the engines, boilers. and machinery hereinbefore provided for, he shall invite proposals from every American shipbuilder and other person who shall show to the satLsfact ion of the Secretary of the Navy that ^\'ithin three months from the date of the con- tract he wall be possessed of the necessary plant for the performance of the work in the United States which he shall offer to undertake, and such contract shall be let to the lowest and best rasponsible bidder or bidders, after at least sixty days' advertisement, published in five leading papers of the United States, inviting proposals for the work proposed, which worK shall be subject to all such rules, regulations, superin- tendence by naval officers during construction, and provisions as to bonds and security for the quality and due completion of the work as the Secretary of the Navy shall prescribe; and no vessel, boiler, engine, machinery, or portion thereof shall be accepted unless completed in strict conformity with the contract; and the authority given hereby shall take effect at once. The Secretary of the Navy shall have the power to reject any or all bids made under the pro- visions of this act. "Sec. 8. That the sum of one million dollars is hereby appropriated towards the armament of the vessels authorized by the act of March third, eighteen hundred and eighty-five, of the vessels authorized by section one of this act, and of the unfinished monitors hereinbefore mentioned, and of the Miantonomoh; and the Secretary of the Navy is hereby authorized to direct the application of such portions of this sum as may be necessary to the manufacture or purchase of such tools and machinery or the erection of such structures as may be required for use in the manufacture of such armament, or any part thereof: Provided, That the Secretary of the Navy may contract with domestic manu- facturers for the construction of such portion of the heavy guns herein provided for as may not be built by the Government. "Sec. 9. That the Secretary of the Navy is hereby authorized to contract with the Pneu- matic Dynamite-Gun Company of New York for one dynamite-gun cruiser, as follow: Said cruiser to be not less than two hundred and thirty feet long, twenty-six feet breadth of beam, seven and one-half feet draught, three thousand two hundred horse-power, and guar- anteed to attain a speed of twenty knots an hour, and to be equipped with three pneumatic dynamite-guns of ten and one-half inch caliber, and guaranteed to throw shells containing two hundred pounds of dynamite or other high explosives at least one mile, each gun to be capable of being discharged once in two minutes, at a price not to exceed three hundred and fifty thousand dollars; said contract to be made only on condition that there shall be a favorable report made by the existing Naval Board on the system ; to be paid for as the work progresses, and upon the report of such board or boards of inspectors as the Secretary of the Navy may for that purpose appoint, reserving thirty per centum on all such payments until the whole work is completed and accepted by the Secretary of the Navy. "The Pneumatic Dynamite-Gun Company shall furnish bonds satisfactory to the Secretary of the Navy for the faithful performance of its 1196 Pt. S. S TA T UTES A T LARGE. Aug. 4, 1886. contract, and for the refunding of the money paid hereunder in case of the nonperformance of the same, and shall further agree with the Secretary of the Navy upon a lirmt of price which shall not be exceeded in any future contracts which the Government may desire to enter into for the purchase of the company's guns. "Sec. 10. That towards the construction and completion of the vessels hereinbefore men- tioned, including the vessel and guns mentioned in section nine, the sum of two million five hundred thousand dollars is hereby appro- priated, of which not more than seventy-five thousand dollars may be expended in manu- facturing, purchasing, and experimenting with torpedoes of domestic manufacture and not exceeding one hundred and fifty thousand dollars may be expended, under the direction of the Secretary of the Navy, in improving the plant of such of the navy-yards as he may select." The provisions contained in the foregoing act of August 3, 1886, relating to the construction of the particular vessels therein specified, were applied to the construction of other vessels thereafter authorized by appropriations under "Increase of the Navy " in annual naval appro- priation acts, to and including the act of June 24, 1910 (36 Stat., 628), the language of which act with respect thereto being as follows: "In the construction of all of said vessels the provisions of the act of August third, eighteen hundred and eighty-six, entitled 'An act to increase the naval establishment,' as to mate- rials for said vessels, their engines, boilers, and machinery, the contracts under which they are built, the notice of any proposals for the same; the plans, drawings, specifications there- for, and the method of executing said contracts shall be observed and followed, and, subject to the provisions of this act, except that the Secretary of the Navy may accept, in lieu of an indemnity bond, the deposit by contractors of United States Government or State bonds, under such conditions and in such manner as the Secretary may prescribe, having due regard for the rights and protection of the United States, all said vessels shall be built in compli- ance with the terms of said act, and in all their parts shall be of domestic manufacture; and the steel materials shall be of domestic manu- facture, and of the quality and characteristics best adapted to the various purposes for which it may be used, in accordance \vith specifica- tions approved by the Secretary of the Navy, provided contracts for furnishing the same in a reasonable time, at a reasonable price, and of the required quality can be made with respon- sible parties. ' ' In the appropriations for new vessels sul^se- quent to the above-quoted act of June 24, 1910, no reference has been made to the act of August 3, 1886. Changes in contracts. — Prior to 1911 con- tracts for the construction of naval vessels contained stipulations as to changes therein, in accordance with section 7 of the act of August 3, 1886, made applicable to such new construc- tion by specific clauses in the annual naval appropriation acts under "Increase of the Navy." Since 1910 similar provisions as to changes have been embodied in such contracts, although no longer required by law. This practice is based on an opinion of the Attorney General of December 21, 1911 (29 Op. Atty. Gen., 285), which held that "the Secretary of the Navy may insert in the contracts for vessels constructed under authority of the act of March 4, 1911 (36 Stat., 1265), a provision for making changes in said contracts and for determining the amount of increased or diminished compen- sation arising therefrom, whether such compen- sation be of the nature of liqmdated or unliciui- dated damages." (File 22724-51, Apr. 7, 1921.) From an examination of the cases it is clear that' changes in public contracts may be made without specific authority therefor; but it is also clear that contract provisions relating to such changes must be strictly observed. (File 22724-51, Apr. 7, 1921, citing 29 Op. Atty. Gen., 285; 18 Op. Atty .Gen., 101; 28 Op. Atty. Gen., 121; 21 Op. Atty. Gen., 207; Corliss Steam Eng. Co. v. U. S., 10 Ct. Cls., 494, 91 U. S., 321; Hawkins v. U. S., 96 U. S., 689; Ferris v. U. S., 28 Ct. Cls., 332; Williams Eng. and Cent. Co. v. U. S., 55 Ct. Cls., 349; 2 Comp. Dec, 182, 185; 4 Comp. Dec, 38; 3 Comp. Dec, 54; 5 Comp. Dec, 83; 7 Comp. Dec, 92; 9 Op. Atty. Gen., 80, 103; 10 Op. Atty. Gen., 476; 15 Op. Atty. Gen., 481; 12 Op. Atty. Gen., 112; Satterlee v. U. S., 30 Ct. Cls., 31.) See act of March 4, 1917 (39 Stat., 1193), as to changes in contracts during war. [1886, Aug. 4. Printing and engraving, Hydrographic office.] That all printing and engraving for the Geological Survey, the Coast and Geodetic Survey, the Hydrographic Office of the Navy Department, and the Signal Service shall hereafter be estimated for separately and in detail, and appro- priated for separately for each of said Bureaus. — (24 Stat., 255, chap. 902.) See sections 430 and 431, Revised Statutes, and notes thereto; see also act of January 12, 1895, section 27 (28 Stat., 604). [1886, Aug. 4. Intoxicating liquors, Board of Visitors, Naval Academy.] Naval Academy. * * * That no part of this sum, or of any other ap- propriation by Congress for expenses of the Board of Visitors, shall be used to pay for intoxicating liquors. — (24 Stat., 268, chap. 903.) See note to section 1511, Revised Statutes. 1197 June 29, 1888. Pt. S. STATUTES AT LARGE. [1887, Feb. 4, sec. 6. Transportation of troops and war material, etc.] Tliat in time of war or threatened war preference and precedence shall, upon demand of the President of the United States, be given over all other traffic for the transportation of troops and material of war, and carriers shall adopt every means within their control to facilitate and expedite the military traffic. And in time of peace shipments consigned to agents of the United States for its use shall l)e delivered by the carriers as promptly as possible and without regard to any embargo that may have been declared, and no such embargo shall apply to shipments so consigned. — (24 Stat., 380, chap. 104; 39 Stat., 604, chap. 417.) The above was an amendment and reactment, by act of Aus^iist 29, 1916 (39 Stat., 604), of a portion of section 6 of an act approved February 4, 1887 (24 Stat., 380-382), as previously amended by acts of March 2, 1889 (25 Stat., 855), and June 29, 1906, section 2 (34 Stat., 586-589). See also act of August 29, 1916 (39 Stat., 645, chap. 418). [1887, Feb. 23. United States prisoners, hiring out labor of.] That it shall not be lawful for any officer, agent, or servant of the Government of the United States to contract with any person or corporation, or permit any warden, agent, or official of any State prison, penitentiary, jail, or house of correction where criminals of the United States may be incarcerated to hire or contract out the labor of said criminals, or an}' part of them, who may hereafter be confined in any prison, jail, or other place of incarceration for violation of any laws of the Government of the United States of America. Sec. 2. That any person who shall offend against the provisions of this act shall be deemed guUty of a misdemeanor, and, on conviction thereof, shall be imprisoned for a term not less than one year nor more than tliree years, at the discretion of the court, or shall be fined not less than five hundred dollars nor more than one thousand dollars for each offense. Sec. 3. That all acts or parts of acts inconsistent with the provisions of this act are hereby repealed ; and this act shall take effect and be in force from and after its passage. — (24 Stat., 411, chap. 213.) [1887, Feb. 23. Holidays, per diem employees.] That all per diem employees of the Government, on duty at Washington or elsewhere in the United States, shall be allowed the day of each year, which is celebrated as "Memorial" or "Decoration Day" and the fourth of July of each year, as holiday, and shall receive the same pay as on other days. — (24 Stat., 644, Res. No. 6.) See note to section 1545, Revised Statutes. [1888, June 29, sec. 6. Supervisor of New York Harbor.] That a line officer of the Navy shall be designated by the President of the United States as supervisor of the harbor, to act under the direction of the Secretary of War in enforcing the provisions of this act, and in detecting offenders against the same. This officer shall receive the sea-pay of his grade, and shall have personal charge and supervision under the Secretary of War, and shall direct the patrol boats and other means to detect and bring to punishment offenders against the pro- visions of this act. — (25 Stat., 210, chap. 496.) 1198 Ft. J. STATUTES AT LARGE. Aug. 8, 1888. The "harbor" referred to in this Bection is Duties of the supervisor of the harbor of New the harbor of New York City. York, appointed as provided above, and Sea-pay of naval officers, see notes to sections his powers as to appointment of deputies, 1556 and 1571, Revised Statutes. making arrests and seizures, etc., were War Department, officers of the Navy detailed prescribed by act of May 28, 1908 (35 Stat., to duty under direction of, see sections 427). 1437 and 1621, Revised Statutes, and notes thereto. [1888, Aug. 1. Condemnation of lands.] That in every case in which the Secretary of the Treasury or any other officer of the Government has been, or hereafter shall be, authorized to procure real estate for the erection of a public building or for other public uses he shall be, and hereby is, authorized to acquire the same for the United States by condemnation, under judicial proc- ess, whenever in his opinion it is necessary or advantageous to the Govern- ment to do so, and the United States circuit or district courts of the district wherein such real estate is located, shall have jurisdiction of proceedings for such condemnation, and it shall be the duty of the Attorney-General of the United States, upon every application of the Secretary of the Treasury, under this act, or such other officer, to cause proceedings to be commenced for con- demnation, within thirty days from the receipt of the application at the Department of Justice. Sec. 2. The practice, pleadings, forms and modes of proceeding in causes arising under the provisions of this act shall conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of the court to the contrary notwithstanding. — (25 Stat., 357, chap. 728.) Circuit courts of the United States were abol- ished bv act of March 3, 1911, section 289 (36 Stat., 1167). See act of July 9, 1918 (40 Stat., 888); and see section 355, Revised Statutes, and note thereto. [1888, Aug. 8. Bonded officers, delinquency, notice to sureties, time for bringing suit.] That hereafter, whenever any deficiency shall be discovered in the accounts of any official of the United States, or of any officer disbursing or chargeable vnih. public money, it shall be the duty of the accounting officers making such discovery to at once notify the head of the Department having control over the affairs of said officer of the nature and amount of said deficiency, and it shall be the immediate duty of said head of Department to at once notify all obligors upon the bond or bonds of such official of the nature of such deficiency and the amount thereof. Said notification shall be deemed sufficient if mailed at the post-office in the city of Washington, District of Columbia, addressed to said sureties respectively, and directed to the respective post- offices where said obligors may reside, if known; but a failure to give or mail such notice shall not discharge the surety or sureties upon such bond. Sec. 2. That if, upon the statement of the account of any official of the United States, or of any officer disbursing or chargeable with public money, by the accounting officers of the Treasury, it shall thereby appear that he is indebted to the United States, and suit therefor shall not be instituted within five years after such statement of said account, the sureties on his bond shall not be liable for such indebtedness. — (25 Stat., 387, chap. 787.) See sections 1383-1385, Revised Statutes, and notes thereto; see also act of February 24, 1919, section 1320 (40 Stat., 1148). 1199 Aug. 14, 1888. /'(. S. STATUTES AT LARGE [1888, Aug. 14. Civil War cases; removal of charge of desertion, issuance of discharge certificate, etc.] That the cliargc of desertion now standing on the rolls and records of the Navy or Marine Corps against any appointed or enlisted man of the Navy or Marine Corps who sorvetl in the late war may in the discretion of the Secretary of the Navy be removed in all cases where it shall be made to appear to the satisfaction of the Secretary of the Navy from such rolls and records or from other satisfactory evidence, that any such appointed or enlisted man served faithfully until the expiration of his term of enlistment, or until the first day of May anno Domini eighteen hundred and sixty-five, having previously served six months or more, or was prevented from completing his term of service by reason of wounds received or disease contracted in the line of duty, but who, by reason of absence from his command at the time he became entitled to his discharge, failed to be mustered out and to receive a discharge from the service: Provided, That no such appointed or enlisted man shall be relieved under this section who, not being sick or wounded, left his command, without proper authority, while the same was in presence of the enemy. Sec, 2. That the Secretary of the Navy is hereby authorized to remove the charge of desertion standing on the rolls or records of the Navy or Marine Corps against any appointed or enlisted man of the Navy or Marine Corps who served in the late war, in all cases where it shall be made to appear, to the satisfaction of the Secretary of the Navy, from such rolls or from other satis- factory evidence, that such appointed or enlisted man charged with desertion or with absence without leave, after such charge of desertion or absence without leave, and within a reasonable time thereafter, voluntarily returned to and served in the line of his duty until he was mustered out of the service, and received a certificate of discharge therefrom, or, while so absent, and before the expiration of his term of enlistment, died from wounds, injury, or disease received or contracted in the service and in the line of duty. Sec. 3. That the charge of desertion now standing on the rolls or records of the Navy or Marine Corps against any appointed or enlisted man of the Navy or Marine Corps who served in the late war, by reason of his having enlisted at any station or on board of any vessel of the Navy without having first received a discharge from the station or vessel in which he had previously served, shall be removed in all cases wherein it shall be made to appear to the satisfaction of the Secretary of the Navy from such rolls and records, or from other satisfactory testimony, that such re-enlistment was not made for the purpose of securing bounty or other gratuity that he would not have been entitled to, had he remained under his original term of enlistment: Provided, That no appointed or enlisted man shall be relieved under this act who, not being sick or wounded, left his command without proper authority while the same was in presence of the enemy, or who, at the time of leaving his command, was in arrest or under charges, or in whose case the period of absence from the service exceeded three months. Sec. 4. That in all cases where the charge of desertion shall be removed under the provisions of this act from the record of any appointed or enlisted man of the Navy or Marine Corps who has not received a certificate of discharge it shall be the duty of the Secretary of the Navy to issue to such appointed or 1200 Pt. 3. STATUTES AT LARGE. Feb. 8, 1889. enlisted man, or in case of his death, to his heirs or legal representatives, a certificate of discharge. Sec. 5. That when the charge of desertion shall be removed under the provisions of this act from the record of any appointed or enlisted man of the Navy or Marine Corps, such man, or, in case of his death, the heirs or legal representatives of such man, shall receive all pay and bounty which may have been withheld on account of such charge of desertion or absence without leave : Provided, however, That this act shall not be so construed as to give to any such man as may be entitled to relief under the provisions of this act, or, in case of his death, to the heirs or legal representatives of any such man, the right to receive pay and bounty for any period of time during which such man was absent from his command without leave of absence: And provided further, That no appointed or enlisted man, nor the heirs or legal representatives of any such man, who served in the Navy or Marine Corps a period of less than six months shall be entitled to the benefit of the provisions of this act: And provided further. That all applications for relief under this act shall be made to and filed with the Secretary of the Navy within the period of five years from and after its passage, and all applications not so made and filed within the said term of five years shall be forever barred, and shall not be received or considered. Sec. 6. That all acts and parts of acts inconsistent with the provisions of this act are hereby repealed. — (25 Stat., 442-443, chap. 890.) See note to Constitution, Article I, section 7, clause 2, under ' ' Veto of bill to alter mili- tary records." See act of May 24, 1900 (31 Stat., 183), which "revived and reenacted" this act, and removed the limitation of time contained in section 5 thereof. See section 418, Revised Statutes, and note thereto, as to property of the Navy De- partment. [1888, Oct. 19, sec. 3. Loan of scientific instruments.] That the Secretary of the Navy be, and he is hereby, authorized, in his discretion, to loan any scientific instruments in the possession of any of the bureaus under his charge, and not in use, to persons taking observations, or making investigations in con- nection with, or for the use of, the Signal Service under such regulations as he may prescribe, taking such security for the safe-keeping and return of such instruments on demand as he may deem necessary. — (25 Stat., 600, chap. 1210.) The civilian duties of the Signal Corps were, by act of October 1, 1890 (26 Stat., 653), transferred to the Weather Bureau, estab- lished in the Department of Agriculture by said act. [1889, Feb. 8. Home on receiving ships, men honorably discharged.] That the Secretary of the Navy be, and he is hereby, authorized to permit any person receiving the honorable discharge authorized by section fourteen hun- dred and twenty-nine of the Revised Statutes to elect a home on board of any of the United States receiving-ships, during any portion of the three months granted by law as the limit of time within which to receive the pecuniary benefit of such discharge, the men so choosing a home to be entitled to one ration per day for their keeping while furnished with such home, but not to pay, other than that authorized by section fifteen hundred and seventy-three of the Revised Statutes of the United States upon re-enlistment: Provided, That the persons so furnished with a home shall be amenable to such regula- 1201 amenable to jurisdiction of naval courts- martial. Feb. 16, 1889. Pt. S. STATUTES AT LARGE. tions as may be proscribed by the Secretary of the Navy or other competent authority. — (25 Stat., 657, chap. 115.) See notes to sections 1426, 1429, and 1573, Re- vised Statutes; see also note to section 1624, Revised Statutes, as to persons [1889, Feb. 9. Deposit of savings, enlisted men of the Navy.] That any enlisted man or appointed petty officer of the Navy may deposit his savings, in sums not less than five dolhirs, with the paymaster upon whose books his account is borne; and he shall be furnished with a deposit-book, in which the said paymaster shall note, over his signature, the amount, date, and place of such deposit. The money so deposited shall be accounted for in the same manner as other public funds, and shall pass to the credit of the appropriation for "Pay for the Navy," and shall not be subject to forfeiture by sentence of court-martial, but shaU be forfeited by desertion, and shall not be permitted to be paid until final payment on discharge, or to the heirs or representatives of a deceased sailor, and that such deposit be exempt from liability for such sailor's debts: Provided, That the Government shall be liable for the amount deposited to the person so depositing the same. Sec. 2. That for any sums not less than five dollars so deposited for the period of six months or longer, the sailor, on his final discharge, shall be paid interest at the rate of four per centum per annum. Sec. 3. That the system of deposits herein established, shall be carried into execution under such regulations as may be established by the Secretary of the Navy.— (25 Stat., 657-658, chap. 119.) See act of June 29, 1906 (34 Stat., 579,i, as to deposit of savings by enlisted men of the Marine Corps; see also notes to sections 1569, 1612, and 1621, Revised Statutes. [1889, Feb. 16. Useless papers, disposition of; report to Congress.] That whenever there shall be in any one of the Executive Departments of the Government an accumulation of files of papers, which are not needed or useful in the transaction of the current business of such Department and have no permanent value or historical interest, it shall be the duty of the head of such Department to submit to Congress a report of that fact, accompanied by a concise statement of the condition and character of such papers. And upon the submission of such report, it shall be the duty of the presiding officer of the Senate to appoint two Senators, and of the Speaker of the House of Kep- resentatives to appoint two Representatives, and the Senators and Repre- sentatives so appointed shall constitute a joint committee, to which shall be referred such report, with the accompanying statement of the condition and character of such papers, and such joint committee shall meet and examine such report and statement and the papers therein described, and submit to the Senate and House, respectively, a report of such examination and their recommendation. And if they report that such files of papers, or any part thereof, are not needed or useful in the transaction of the current business of such Department, and have no permanent value or historical interest, then it shall be the duty of such head of the Department to sell as waste paper, or otherwise dispose of such files of papers upon the best obtainable terms after due publication of notice inviting proposals therefor, and receive and pay the 1202 Pt. S. STATUTES AT LARGE. Feb. 7, 1890. March 3, 1915 (38 Stat. , 929'). See also note to section 418, Revised Statutes. proceeds thereof into the Treasury of the United States, and make report thereof to Congress. — (25 Stat., 672, chap. 171.) See acts of March 2, 1895 (28 Stat., 933), Febru- ary 16, 1909, section 14 (35 Stat., 622), August 22, 1912 (37 Stat., 329-330), and [1889, Mar. 1. Outfits on first enlistment.] That in order to encourage the enlistment of boys as apprentices in the United States Navy, the Secre- tary of the Navy is hereby authorized to furnish as a bounty to each of said apprentices after his enhstment, and when first received on board of a training- ship, an outfit of clothing not to exceed in value the sum of forty-five dollars. — (25 Stat., 781, chap. 331.) of the Navy an imperative obligation and not merely discretionary power. The whole pur- pose of the act is to "encourage the enlistment of boys as apprentices in the I'nited States Navy," and upon the Secretary of the Navy is imposed the duty of executing the provisions of the statute. (25 Op. Attv. Gen., 270, 273. See note to act of June 29, 1906, 34 Stat., 553, as to refund of enlistment bounty.) See notes to sections 1418, 1569, and 3689 Re- \i8ed Statutes; and see act of March 3, 1915 (38 Stat., 932), and note thereto. See note to section 1556, Re^'ised Statutes, as to uniform gratuity of the Naval Reserve Force. Furnishing of bounty held mandatory. — The language used by Congress in this act is to be construed as imposing upon the Secretary [1889, Mar. 2. Supplies on hand; report to Congress.] It shall be the duty of the Bureau of Provisions and Clothing to cause property accounts to be kept of all the supplies pertaining to the naval establishment, and to report annually to Congress the money values of the supplies on hand at the various stations at the beginning of the fiscal year, the dispositions thereof, and of the purchases, and the expenditures of supplies for the year, and the balances remaining on hand at the end thereof.— (25 Stat., 817-818, chap. 371.) See note to section 419, ReWsed Statutes, as to See acts of June 25, 1910 (36 Stat., 792), March 4, change in designation of the Bureau of Pro- 1911 (36 Stat., 1279), June 30, 1914 (38 Stat., ^•isionsand Clothing, and as to the duties of 405), and March 1, 1921 (41 Stat., 1169), as that bureau. to the " Naval supply account " and "Naval See note to section 429, Rexised Statutes, as supply account fund." to annual reports to Congress. [1889, Mar. 2. Transfer of accumulated supplies.] And for the purpose of utilizing accumulated naval supplies, the transfer is authorized, after requi- sition upon the Paymaster-General of the Navy, of any supplies belongmg to one bureau and available for the use of another without reimbursement therefor by the bureau receiving the supplies so transferred: Provided, That supplies obtained for a specific object and still needed therefor, and supplies bought within the fiscal year in which the requisition is made, and provisions, clothing, and small stores shall not be subject to transfer without charge under the terms of this act.— (25 Stat., 818, chap. 371.) to the "Naval supply account "' and "Naval supply account fund." See also section 3718, Re\ised Statutes, as to purchase of supplies. See act of March 2, 1891 (26 Stat., 807), and note to section 418, Revised Statutes; see also acts of June 25, 1910 (36 Stat. , 792), March 4, 1911 (36 Stat. , 1279), June 30, 1914 (38 Stat., 405), and March 1, 1921 (41 Stat., 1169), as [1890, Feb. 7. Certificates in lieu of lost discharges.] That from and after the passage of this act, whenever satisfactory proof is furnished at the Navy De- partment that any conmiissioned officer, regular or volunteer, appointed or en- listed man who served in the Navy or the Marine Corps of the United States in the war of eighteen hundred and twelve, the Mexican war, or the war of the re- 1203 Aug. 19, 1890. Pi. S. ISTATUTES AT LARGE. Navigation. hellion, has lost his certificate of discharge, or the same has been destroyed without his privity or procurement, the Secretary of the Navy shall be author- ized to furnish to such commissioned officer, regular or volunteer, appointed or enlisted man, a certificate of discharge in lieu thereof. Provided, That such cer- tificate shall not be accepted as a voucher for the payment of any claim against the United States for pay, bounty, or any other allowance, or as evidence in any other case. — (26 Stat., 6, chap. 8.) See notes to sections 1426 and 1427, Revised Statutes. [1890, Apr. 30, sec. 3. Acquisition of collections for National Zoological Park.] That the heads of executive departments of the Government are hereby authorized and directed to cause to be rendered all necessary and practicable aid to the said regents in the acquisition of collections for the Zoological Park. — (26 Stat., 78 chap. 173.) The words ' ' said regents " refer to the regents of the Smithsonian Institution. [1890, June 30. Sale of condemned Naval Supplies, etc.] The Secretary of the Navy is hereby authorized to sell, after advertisement of the sale for such time as in his judgment the public interests may require, condemned naval sup- plies, stores, and materials, either by public auction or by advertisement for sealed proposals for the purchase of the same. — (26 Stat., 194, chap. 640.) See sections 1541, 3618, and 3692, Revised Statutes, and notes thereto; see also acts of August 5, 1882, section 2 (22 Stat., 296), and March 2, 1905(33 Stat., 41). [1890, June 30. Clothing and small stores fund.] Bureau of provisions and clothing. * * * And the clothing fund and small stores fund shall be here- after consolidated and administered as a fund to be known as the clothing and small stores fund. — (26 Stat., 197, chap. 640.) See act of February 14, 1879 (20 Stat., 288), and See note to section 419, Revised Statutes, as to note to section 3689, Revised Statutes. change in designation of the Bureau of Pro- visions and Clothing in the Navy Depart- ment. [1890, July 11. Assistant Secretary of the Navy.] For an assistant Secretary of the Navy, to be appointed, from civil life, by the President, by and with the advice and consent of the Senate * * *. — (26 Stat., 254, chap. 667.) See act of March 3, 1891 (26 Stat., 934), and see note to section 415, Revised Statutes. [1890, July 11, Sec. 2. IneflBlcient employees, report to Congress.] That here- after it shall be the duty of the heads of the several executive departments of the Government to report to Congress each year in the annual estimates the num- ber of employees in each bureau and office and the salaries of each who are below a fair standard of efficiency. — (26 Stat., 268, chap. 667.) See sections 429 and 430, Revised Statutes, and notes thereto. [1890, Aug. 19. Regulations for preventing collisions at sea.] That the follow- ing regulations for preventmg coUisions at sea shall be followed by all public and private vessels of the United States upon the high seas and in all waters connected therewith, navigable by sea-going vessels. — (26 Stat., 320, chap. 802.) of laws, so far as applicable to the naviga- tion of the Great Lakes and their connect- ing and tributary waters as far east as Mont- real, inconsistent with tlie foregoing rules." The act of February 8, 1895 (28 Stat., 645), establishing rules "to regulate na\dgation on the Great Lakes and their connecting and tributary waters," repealed in section 4 thereof (28 Stat., 650), "all laws or parts 1204 Navigation. Ft. 3. STATUTES AT LARGE Aug. 19, 1890. Navigation on the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries: See sections 4233 and 4412, Re\dsed Statutes, and notes thereto. Navigation on the Great Lakes and their con- necting and tributary waters as far east as Montreal: See act of February 8, 1895 (28 Stat., 645), and notes thereto. Na\'igation on all harbors, rivers, and inland waters of the United States, except the Great Lakes and their connecting and tributary waters as far east as Montreal, and except the Red River of the North and rivers emptj-ing into the Gulf of Mexico and their tributaries: See act of June 7, 1897 (30 Stat., 96). Navigation, Pearl Harbor, Hawaii: See act of August 22, 1912 (37 Stat., 341). Rules governing motor boats: See act of June 9, 1910 (36 Stat., 462). See, generally, notes to sections 4233 and 4412, Revised Statutes; and Navy Regulations, 1920 (chapter 55), quoting laws, and regu- lations of the Department of Commerce, "for preventing collisions," etc. PRELIMINARY. In the following rules every steam-vessel which is under sail and not under steam is to be considered a sailing-vessel, and every vessel under steam, whether under sail or not, is to be considered a steam-vessel. The word ''steam-vessel" shall include any vessel propelled by ma- chinery. A vessel is ''under way" within the meaning of these rules when she is not at anchor, or made fast to the shore, or aground. — (26 Stat., 320-321, chap. 802.) RULES CONCER]S^NG LIGHTS, AND SO FORTH. The word '"visible" in these rules when applied to lights shall mean visible on a dark night with a clear atmosphere. Article 1. The rules concerning lights shall be complied with in all weathers from sunset to sunrise, and during such time no other lights which may be mistaken for the prescribed light shall be exhibited. — (26 Stat., 321, chap. 802.) Art. 2. — A steam-vessel when under way shall carry — (a) On or in front of the foremast, or if a vessel without a foremast, then in the fore part of the vessel, at a height above the hull of not less than twenty feet, and if the breadth of the vessel exceeds twenty feet, then at a height above the hull not less than such breadth, so, however, that the light need not be carried at a greater height above the hull than forty feet, a bright white light, so constructed as to show an unbroken light over an arc of the horizon of twenty points of the compass, so fixed as to throw the light ten points on each side of the vessel, namely, from right ahead to two points abaft the beam on either side, and of such a character as to be visible at a distance of at least five miles. (b) On the starboard side a green light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side, and of such a character as to be visible at a distance of at least two miles. (c) On the port side a red light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port side, and of such a character as to be visible at a distance of at least two miles. (d) The said green and red side-lights shall be fitted with inboard screens projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow. 1205 Aug. 19, 1890. Pt. 3. STATUTES AT LARGE. Navigation. (e) A steam-vcssol when under way may carry an additional white light similar in construction to the light mentioned in subdivision (a). These two lights shall be so placed in line with the keel that one shall be at least fifteen feet higher than the other, and in such a position with reference to each other that the lower light shall be forward of the upper one. The vertical distance between these lights shall be less than the horizontal distance. — (26 Stat., 321, chap. 802.) Art. 3. A steam-vessel when towing another vessel shall, in addition to her side-lights, carry two bright white lights in a vertical line one over the other, not less than six feet apart, and when towing more than one vessel shall carry an additional bright white light six feet above or below such light, if the length of the tow measuring from the stern of the towing vessel to the stem of the last vessel towed exceeds six hundred feet. Each of these lights shall be of the same construction and character, and shall be carried in the same posi- tion as the white light mentioned in article two (a), excepting the additional light, which may be carried at a height of not less than fourteen feet above the hull. Such steam-vessel may carry a small white light abaft the funnel or aftermast for the vessel towed to steer b}-, but such light shall not be visible forward of the beam.— (26 Stat., 321, chap. 802.) Art. 4. (a) A vessel which from any accident is not under command shall carry at the same height as a white light mentioned in article two (a), where they can best be seen, and if a steam-vessel in lieu of that light, two red lights, in a vertical line one over the other, not less than six feet apart, and of such a character as to be visible all around the horizon at a distance of at least two miles; and shall by day carry in a vertical line one over the other, not less than six feet apart, where they can best be seen, two black balls or shapes, each two feet in diameter. (b) A vessel employed in laying or in picking up a telegraph cable shall carry in the same position as the white light mentioned in article two (a), and if a steam-vessel in lieu of that light, three lights in a vertical line one over the other not less than six feet apart. The highest and lowest of these lights shall be red, and the middle light shall be white, and they shall be of such a character as to be visible all around the horizon, at a distance of at least two nules. By day she shall carry in a vertical line, one over the other, not less than six feet apart, where they can best be seen, three shapes not less than two feet in diameter, of which the highest and lowest shall be globular in shape and red in color, and the middle one diamond in shape and white. (c) The vessels referred to in this article, when not making way through the water, shall not carry the side-lights, but when making way shall carry them. (d) The lights and shapes required to be shown by this article are to be taken by other vessels as signals that the vessel showing them is not under command and can not therefore get out of the way. These signals are not signals of vessels in distress and requiring assistance. Such signals are contained in article thirty-one. — (26 Stat., 322, chap. 802.) Art. 5. A sailing-vessel under way and any vessel being towed shall carry the same lights as are prescribed by article two for a steam-vessel under 1206 Navigation. Pt. 3. STATUTES AT LARGE. Aug. 19, 1890. way, with the exception of the white hghts mentioned therein, which they shall never carry.— (26 Stat., 322, chap. 802.) Art. 6. Whenever, as in the case of small vessels under way during bad weather, the green and red side-lights can not be fixed, these lights shall be kept at hand, lighted and ready for use; and shall, on the approach of or to other vessels, be exhibited on their respective sides in sufficient time to pre- vent collision, in such manner as to make them most visible, and so that the green light shall not be seen on the port side nor the red light on the starboard side, nor, if practicable, more than two points abaft the beam on their respec- tive sides. To make the use of these portable lights more certain and easy the lan- terns containing them shall each be painted outside with the color of the light they respectively contain, and shall be provided with proper screens. — (26 Stat., 322, chap. 802.) Art. 7. Steam vessels of less than forty, and vessels under oars or sails of less than twenty tons gross tonnage, respectively, and rowing boats, when under way, shall not be required to carry the lights mentioned in article two (a) , (b) , and (c) , but if they do not cany them they shall be provided with the following lights: "First. Steam vessels of less than forty tons shall carry — " (a) In the fore part of the vessel, or on or in front of the funnel, where it can best be seen, and at a height above the gunwale of not less than nine feet, a bright white light constructed and fixed as prescribed in article two (a), and of such a character as to be visible at a distance of at least two miles. " (b) Green and red side-lights constructed and fLxed as prescribed in article two (b) and (c), and of such a character as to be visible at a distance of at least one mile, or a combined lantern showing a green light and a red light from right ahead of two points abaft the beam on their respective sides. Such lanterns shall be carried not less than three feet below the white light. ''Second. Small steamboats, such as are carried by seagoing vessels, may carry the white light at a less height than nine feet, above the gunwale, but it shall be carried above the combined lantern mentioned in subdivision one (b)". ''Third. Vessels under oars or sails of less than twenty tons shall have ready at hand a lantern with a green glass on one side and a red glass on the other, which, on the approach of or to other vessels, shall be exhibited in suffi- cient time to prevent collision, so that the green light shall not be seen on the port side nor the red light on the starboard side. "Fourth. Rowing boats, whether under oars or sail, shall have ready at hand a lantern showing a white light which shall be temporarily exhibited in sufficient time to prevent collision. "The vessels referred to in this article shall not be obfiged to carry the lights prescribed by article four (a) and article eleven, last paragraph. — (26 Stat., 322-323, chap. 802; 28 Stat., 82-83, chap. 83.) This article was expressly amended and reenacted to read as above, by act of May 28, 1894. (28 Stat., 82-83.) Art. 8. Pilot vessels when engaged on their station on pilotage duty shall not show the lights required for other vessels, but shall carry a white 1207 Aug. 19, 1890. rt. S. STATUTES AT LARGE. Navigation. light at the masthead, visible all around the horizon, and shall also exhibit a flare-up li<::ht at short intervals, which shall never exceed fifteen minutes. On the near apj)roach of or to other vessels they shall have their side lights lighted, ready for use, and shall flash or show them at short intervals, to indicate the tlirection in which they are heading, but the green light shall not be shown on the port side, nor the red light on the starboard side. A pilot-vessel of such a class as to be obliged to go alongside of a vessel to put a pilot on board may show the white light instead of canying it at the masthead, and may, instead of the colored lights above mentioned, have at hand, ready for use, a lantern with a green glass on the one side and a red glass on the other, to be used as prescribed above. Pilot-vessels when not engaged on their station on pilotage duty shall carry lights similar to those of other vessels of their tonnage. — (26 Stat., 323, chap. 802.) lights required for all pilot boats the red light above mentioned, but not the colored side lights. ' ' When not engaged on her station on pilotage dnty, she shall carry the same lights as other steam vessels. "Sec. 2. That this Act shall be construed as supplementary to article eight of the Act approved June seventh, eighteen hundred and ninety-seven, entitled 'An Act to adopt regulations for preventing collisions upon certain harbors, rivers, and inland waters of the United States, ' and to article eight of an Act approved August nine- teenth, eighteen hundred and ninety, entitled 'An Act to adopt regulations for preventing collisions at sea.' '' By act of February' 19, 1900 (31 Stat., 30-31), which was expressly "supplementary" to this article, it was provided: "That a steam pilot vessel, when engaged on her station on pilotage duty and in waters of the United States, and not at anchor, shall, in addition to the lights required for all pilot boats, carry at a distance of eight feet below her white masthead light a red light, visible all aroimd the horizon and of such a charac- ter as to be \'i8ible on a dark night with a clear atmosphere at a distance of at least two miles, and also the colored side lights required to be carried by vessels when imder way. "When engaged on her station on pilotage duty and in waters of the United States, and at anchor, she shall carry in addition to the Article 9. Fishing vessels and fishing boats, when under way and when not required by this article to carry or show the lights hereinafter specified, shall carry or show the lights prescribed for vessels of their tonnage under way. (a) Open boats, by which is to be understood boats not protected from the entry of sea water by means of a continuous deck, when engaged in any fishing at night, with outlying tackle extending not more than one hundred and fifty feet horizontally from the boat into the seaway, shall carry one all- round white light. Open boats, when fishing at night, with outlying tackle extending more than one hundred and fifty feet horizontally from the boat into the seaway, shall carry one all-round white light, and in addition, on approaching or being approached by other vessels, shall show a second white light at least three feet below the first light and at a horizontal distance of at least five feet away from it in the direction in which the outlying tackle is attached. (b) Vessels and boats, except open boats as defined in subdivision (a), when fishing with drift nets, shall, so long as the nets are wholly or partly in the water, carry two white lights where they can best be seen. Such lights shall be placed so that the vertical distance between them shall be not less than six feet and not more than fifteen feet, and so that the horizontal distance between them, measured in a line with the keel, shall be not less than five feet and not more than ten feet. The lower of these two lights shall be in the direction of the 1208 Navigation. Pt. 3. STATUTES AT LARGE. Aug. 19, 1890. nets, and both of them shall be of such a character as to show all around the horizon, and to be visible at a distance of not less than three miles. Within the Mediterranean Sea and in the seas bordering the coasts of Japan and Korea sailing fishing vessels of less than twenty tons gross tonnage shall not be obliged to carry the lower of these two lights. Should they, how- ever, not carry it, they shall show in the same position (in the direction of the net or gear) a white light, visible at a distance of not less than one sea mile, on the approach of or to other vessels. (c) Vessels and boats, except open boats as defined in subdivision (a) when line fishing with their lines out and attached to or hauling their lines, and when not at anchor or stationary within the meaning of subdivision (h), shall carry the same lights as vessels fishing with drift nets. When shooting lines, or fishing with towing lines, they shall carry the lights prescribed for a steam or sailing vessel under way, respectively. Within the Mediterranean Sea and in the seas bordering the coasts of Japan and Korea sailing fishing vessels of less than twenty tons gross tonnage shall not be obliged to carry the lower of these two lights. Should they, how- ever, not carry it, they shall show in the same position (in the direction of the lines) a white light, visible at a distance of not less than one sea mile on the approach of or to other vessels. (d) Vessels when engaged in trawling, by which is meant the dragging of an apparatus along the bottom of the sea — First. If steam vessels, shall carry in the same position as the the white light mentioned in article two (a) a tri-colored lantern so constructed and fixed as to show a white light from right ahead to two points on each bow, and a green light and a red light over an arc of the horizon from two points on each bow to two points abaft the beam on the starboard and port sides, respectively; and not less than six nor more than twelve feet below the tri- colored lantern a white light in a lantern, so constructed as to show a clear, uniform, and unbroken light all around the horizon. Second. If sailing vessels, shall carry a white light in a lantern, so con- structed as to show a clear, uniform, and unbroken light all around the horizon, and shall also, on the approach of or to other vessels, show where it can best be seen a white flare-up light or torch in sufficient time to prevent collision. All lights mentioned in subdivision (d) first and second shall be visible at a distance of at least two miles. (e) Oyster dredgers and other vessels fishing with dredge nets shall carry and show the same lights as trawlers. (f) Fishing vessels and fishing boats may at any time use a flare-up light in addition to the lights which they are by this article required to carry and show, and they may also use working lights, (g) Every fishing vessel and every fishing boat under one hundred and fifty feet in length, when at anchor, shall exhibit a white light visible all around the horizon at a distance of at least one mile. Every fishing vessel of one hundred and fifty feet in length or upward, when at anchor, shall exhibit a white light visible all around the horizon at a distance of at least one mile, and shall exhibit a second light as provided for vessels of such length by article eleven. 1209 Aug. 19, 1890. Pt. S. STATUTES AT LARGE. Navigation. Should any such vessel, whether under one hundred and fifty feet in lenp;th or of one hundred and fifty feet in length or upward, be attached to a net or other fishing gear, she shall on the approach of other vessels show an additional white light at least three feet below the anchor light, and at a hori- zontal distance of at least five feet away from it in the direction of the net or gear. (h) If a vessel or boat when fishing becomes stationary in consequence of her gear getting fast to a rock or otner obstruction, she shall in daytime haul down the day signal required by subdivision (k) ; at night show tlie light or lights prescribed for a vessel at anchor; and during fog, mist, falling snow, or heavy rain storms make the signal prescribed for a vessel at anchor. (See subdivision (d) and the last paragraph of article fifteen.) (i) In fog, mist, falling snow, or heavy rain storms drift-net vessels attached to their nets, and vessels when trawling, dredging, or fishing with any kind of a drag net, and vessels line fishing with their lines out, shall, if of twenty tons gross tonnage or upward, respectively, at intervals of not more than one minute make a blast; if steam vessels, with the whistle or siren, and if sailing vessels, with the fog-horn, each blast to be followed by ringing the bell. Fish- ing vessels and boats of less than twenty tons gross tonnage shall not be obliged to give the above-mentioned signals; but if they do not, they shall make some other efficient sound signal at intervals of not more than one minute. (k) All vessels or boats fishing with nets or lines or trawls, when under way, shall in daytime indicate their occupation to an approaching vessel by dis- playing a basket or other efficient signal where it can best be seen. If vessels or boats at anchor have their gear out, they shall, on the approach of other vessels, show the same signal on the side on which those vessels can pass. The vessels required by this article to carry or show the lights herein- before specified shall not be obliged to carry the lights prescribed by article four (a) and the last paragraph of article eleven. — (26 Stat., 323-324, chap. 802; 28 Stat., 83, chap. 83; 34 Stat., 850-852, chap. 300.) The original article 9 of this act was expressly repealed by act of May 28, 1894 (28 Stat., 83); and the article given above was ex- pressly inserted in the original act of August 19, 1890, as article 9 thereof, by act of January 19, 1907 (34 Stat., 850-852). Art. 10. A vessel which is being overtaken by another shall show from her stern to such last-mentioned vessel a white light or a flare-up light. The white light required to be shown by this article may be fixed and carried in a lantern, but in such case the lantern shall be so constructed, fitted, and screened that it shall throw an unbroken light over an arc of the horizon of twelve points of the compass, namely, for six points from right aft on each side of the vessel so as to be visible at a distance of at least one mile. Such light shall be carried as nearly as practicable on the same level as the side-lights. (26 Stat., 324, chap. 802.) Art. 11. a vessel under one hundred and fifty feet in length, when at anchor, shall carry forward, where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a lantern so constructed as to show a clear, uniform, and unbroken light visible all around the horizon at a distance of at least one mile. 1210 Navigation. Ft. 3. STATUTES AT LARGE. Aug. 19, 1890. A vessel of one hundred and fifty feet or upwards in length, when at anchor, shall carry in the forward part of the vessel, at a height of not less than twenty and not exceeding forty feet above the hull, one such light, and at or near the stern of the vessel, and at such a height that it shall be not less than fifteen feet lower than the forward light, another such light. The length of a vessel shall be deemed to be the length appearing in her certificate of registry. A vessel aground in or near a fair-way shall carry the above light or lights and the two red lights prescribed by article four (a). — (26 Stat., 324-325, chap. 802.) Art. 12. Every vessel may, if necessary in order to attract attention, in addition to the lights which she is by these rules r3C{uired to carry, show a flare- up light or use any detonating signal that can not be mistaken for a distress signal— (26 Stat., 325, chap. 802.) Art. 13. Nothing in these rules shall interfere with the operation of any special rules made by the Government of any nation with respect to additional station and signal-lights for two or more ships of war or for vessels sailing under convoy, or with the exhibition of recognition signals adopted by ship owners, which have been authorized by their respective Governments and duly regis- tered and published.— (26 Stat., 325, chap. 802.) Art. 14. A steam-vessel proceeding under sail only but havmg her funnel up, shall carry in day-time, forward, where it can best be seen, one black ball or shape two feet in diameter. — (26 Stat., 325, chap. 802.) SOUND SIGNALS FOR FOG, AND SO FORTH. Art. 15. All signals prescribed by this article for vessels under way shall be given: First. By "steam vessels" on the whistle or siren. Second. By "sailing vessels" and "vessels towed" on the fog horn. The words "prolonged blast" used in this article shall mean a blast of from four to six seconds duration. A steam vessel shall be provided with an efficient whistle or siren, sounded by steam or by some substitute for steam, so placed that the sound may not be intercepted by any obstruction, and with an efficient fog horn, to be sounded by mechanical means, and also with an efficient bell. (In all cases where the rules require a bell to be used a drum may be substituted on board Turkish vessels, or a gong where such articles are used on board small seagoing vessels.) A sailing vessel of twenty tons gross tonnage or upward shall be provided with a similar fog horn and bell. In fog, mist, falling snow, or heavy rainstorms, whether by day or night, the signals described in this article shall be used as follows, namely : (a) A steam vessel having way upon her shall sound, at intervals of not more than two minutes, a prolonged blast. (b) A steam vessel under way, but stopped, and having no way upon her, shall sound, at intervals of not more than two minutes, two prolonged blasts, with an interval of about one second between. (c) A sailing vessel under way shall sound, at intervals of not more than one minute, when on the starboard tack, one blast; when on the port tack, two 54641° --22^— 77 1211 Aug. 19, 1890. I't. S. STATUTES AT LARGE. Navigation. blasts in succession, and when with the wind abaft the beam, three blasts in succession. (d) A vessel when at anchor shall, at intervals of not more than one minute, ring the bell rapidly for about five seconds. (e) A vessel when towing, a vessel employed in laying or in picking up a telegraph cable, and a vessel under way, which is unable to get out of the way of an approaching vessel through being not under command, or unable to ma- neuver as required by the rules, shall, instead of the signals prescribed in sub- divisions (a) and (c) of this article, at intervals of not more than two minutes, sound three blasts in succession, namely: One prolonged blast followed by two short blasts. A vessel towed may give this signal and she shall not give any other. Sailing vessels and boats of less than twenty tons gross tonnage shall not be obliged to give the above-mentioned signals, but, if they do not, they shall make some other efficient sound signal at intervals of not more than one minute.— (26 Stat., 325-326, chap. 802; 29 Stat., 381, chap, 401.) This article was expressly amended and reenacted to read as above by act of June 10, 1896 (29 Stat., 381). SPEED OF SHIPS TO BE MODERATE IN FOG, AND SO FORTH. Art. 16. Every vessel shall, in a fog, mist, falling snow, or heavy rain- storms, go at a moderate speed, having careful regard to the existing circum- stances and conditions, A steam vessel hearing, apparently forward of her beam, the fog-signal of a vessel the position of which is not ascertained shall, so far as the circum- stances of the case admit, stop her engines, and then navigate with caution until danger of colhsion is over. — (26 Stat., 326, chap. 802.) Steering and Sailing Rules. PREU^VnNARr RISK OF COLLISION. Risk of collision can, when circumstances permit, be ascertained by care- fully watching the compass bearing of an approaching vessel. If the bearing does not appreciably change, such risk should be deemed to exist. Art. 17. AVhen two sailing vessels are approaching one another, so as to involve risk of collision, one of them shall keep out of the way of the other, as follows, namely: (a) A vessel which is running free shall keep out of the way of a vessel which is close-hauled. (b) A vessel which is close-hauled on the port tack shall keep out of the way of a vessel which is close-hauled on the starboard tack. (c) When both are running free, with the wind on different sides, the vessel which has the wind on the port side shall keep out of the way of the other. (d) When both are running free, with the wind on the same side, the vessel which is to the windward shall keep out of the way of the vessel which is to leeward. (e) A vessel which has the wind aft shall keep out of the way of the other vessel.— (26 Stat., 326, chap. 802.) 1212 Navigation. Pt. 3. STATUTES AT LARGE. Aug. 19, 1890. Art. 18. When, two steam-vessels are meeting end on, or nearly end on, so as to involve the risk of collision, each shall alter her course to starboard, so that each may pass on the port side of the other. This article only applies to cases where vessels are meeting end on, or nearly end on, in such a manner as to involve risk of collision, and does not apply to two vessels which must, if both keep on their respective courses, pass clear of each other. The only cases to which it does apply are when each of the two vessels is end on, or nearly end on, to the other; in other words, to cases in which, by day, each vessel sees the masts of the other in a line, or nearly in a line, with her owti; and by night, to cases in which each vessel is in such a position as to see both the side lights of the other. It does not apply by day to cases in wliich a vessel sees another ahead crossing her own course ; or by night, to cases where the red light of one vessel is opposed to the red light of the other, or where the green light of one vessel is opposed to the green light of the other, or where a red light %vitliout a green light, or a green light without a red light, is seen ahead, or where both green and red lights are seen anywhere but ahead. — (26 Stat., 326-327, chap. 802.) Art. 19. When two steam-vessels are crossing, so as to involve risk of collision, the vessel which has the other on her o^vn starboard side shall keep out of the way of the other.— (26 Stat., 327, chap. 802.) Art. 20. When a steam-vessel and a sailing vessel are proceeding in such directions as to involve risk of collision, the steam-vessel shall keep out of the way of the sailing-vessel. — (26 Stat., 327, chap. 802.) Article twenty-one. Where, by any of these rules, one of two vessels is to keep out of the way the other shall keep her course and speed. Note. — When, in consequence of thick weather or other causes, such vessel finds herseK so close that collision can not be avoided bv the action of the givinor- wa}' vessel alone^ she also shall take such action as will best aid to avert col- lision. (See articles twenty-seven and twenty-nine.) — (26 Stat., 327, chap. 802; 28 Stat., 83, chap. 83.) This article was expressly amended and reenacted to read as above by act of May 28, 1894 (28 Stat., 83). Art. 22. Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other. — (26 Stat., 327, chap. 802.) Art. 23. Every steam-vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse. — (26 Stat., 327, chap. 802.) Art. 24. Notwithstanding anything contained in these rules every vessel, overtaking any other, shall keep out of the way of the overtaken vessel. Every vessel coming up with another vessel from any direction more than two points abaft her beam, that is in such a position, with reference to the vessel which she is overtaking that at night she would be unable to see either of that vessel's side-lights, shall be deemed to be an overtaking vessel; and no subsequent alteration of the bearing between the two vessels shall make the overtaking vessel a crossing vessel within the meaning of these rules, or relieve 1213 Aug. 19, 1890. Pt. .i. STATUTES AT LARGE. Navigation. her of the duty of keeping dear of llio overtaken vessel until she is finally passed and elear. As by day tlie overtaking vessel can not always know with certainty whether she is forward of or abaft this direction from the other vessel she should, if in doubt, assume that she is an overtaking vessel and keep out of th(> way.— (26 Stat., 327, chap. 802.) Art. 25. In narrow channels every steam-vessel shall, when it is safe and practicable, keep to that side of the fair-way or mid-channel which lies on the starboard side of such vessel. — (26 Stat., 327, chap. 802.) Art. 26. Sailing vessels under way shall keep out of the way of sailing vessels or boats fishing with nets, or lines, or trawds. This rule shall not give to any vessel or boat engaged in fishing the right of obstructing a fair-way used by vessels other than fishing vessels or boats. — (26 Stat., 327, chap. 802.) Art. 27. In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.— (26 Stat., 327, chap. 802.) SOUND-SIGNALS FOR VESSELS IN SIGHT OF ONE ANOTHER. Art. 28. The words ''short blast" used in this article shall mean a blast of about one second's duration. \^Tlen vessels are in sight of one another, a steam-vessel under way, in taking any course authorized or required by these rules, shall indicate that course by the following signals on her whistle or siren, namely: One short blast to mean, "I am directing my course to starboard." Two short blasts to mean, "I am directing my course to port." Three short blasts to mean, "My engines are going at full speed astern." — (26 Stat., 328, chap. 802.) XO VESSEL, UNDER ANY CIRCUMSTANCES, TO NEGLECT PROPER PRECAUTIONS. Art. 29. Nothing in these rules shall exonerate any vessel or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper look-out, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case. — (26 Stat., 328, chap. 802.) RESERVATION OF RULES FOR HARBORS AND INLAND NAVIGATION. Art. 30. Nothing in these rules shall interfere with the operation of a special rule, duly made by local authority, relative to the navigation of any harbor, river, or inland waters. — (26 Stat., 328, chap. 802.) DISTRESS SIGNALS. Article thirty-one. When a vessel is in distress and requires assistance from other vessels or from the shore the following shall be the signals to be used or displayed by her, either together or separately, namely : In the daytime — • First. A gun or other explosive signal fired at intervals of about a minute. Second. The international code signal of distress indicated by N C. 1214 Pt. 3. STATUTES AT LARGE. Sept. 4, 1890. Third. The distance signal, consisting of a square flag, having either above or below it a ball or anything resembling a ball. Fourth. A continuous sounding with any fog-signal apparatus. At night — First. A gun or other explosive signal fired at intervals of about a minute. Second. Flames on the vessel (as from a burning tar barrel, oil barrel, and so forth). Third. Rockets or shells throwing stars of any color or description, fired one at a time, at short intervals. Fourth. A continuous sounding with any fog-signal apparatus. — (26 Stat., 328, chap. 802; 28 Stat., 83, chap. 83.) This article was expressly amended and reenacted to read as above by act of May 28, 1894 (28 Stat., 83). [1890, Aug. 29. Chief clerks to administer oaths of office.] And the Chief Clerks of the several Executive Departments and of the various bureaus and offices thereof in Washington, District of Columbia, are hereby authorized and directed, on application and without compensation therefor, to administer oaths of office to employees required to be taken on their appointment or promotion. — (26 Stat., 371, chap. 820.) See section 183, Re\dsed Statutes, and note thereto. [1890, Aug-. 30. Subsistence of officers detailed to Coast and Geodetic Survey.] Xor shall there hereafter be made any allowance for subsistence to officers of the Navy attached to the Coast and Geodetic Survey, except that when officers are detached to do work away from their vessels under circum- stances involving them in extra expenditures, the Superintendent may allow to any such officer subsistence at a rate not exceeding one dollar per day for the period actually covered by such duty away from such vessel. — (26 Stat., 382, chap. 837.) See sections 264 and 4688, Revised Statutes, and notes thereto. [1890, Aug. 30, sec. 4. Quarterly accounts to be rendered; exceptions.] That hereafter all disbursing officers of the United States shall render their accounts quarterly; and the Secretary of the Senate shall render his accounts as heretofore; but the Secretary of the Treasury may direct any or all such accounts to be rendered more frequently when in his judgment the pubhc interests may require, — (26 Stat. 413, chap. 837.) See section 3622, Revised StatTites, and note thereto. [1890, Sept. 4. Collisions; duty of master; penalty.] That in every case of collision between two vessels it shall be the duty of the master or person in charge of each vessel, if and so far as he can do so without serious danger to his own vessel, crew, and passengers (if any), to stay by the other vessel until he has ascertained that she has no need of further assistance, and to render to the other vessel, her master, crew, and passengers (if any) such assistance as may be practicable and as may be necessary in order to save them from any danger caused by the collision, and also to give to the master or person in charge of the other vessel the name of his own vessel and her port of registry, or the port or place to which she belongs, and also the name of the ports and 1215 Mar. 3, 1891. Pt. S. STATUTES AT LARGE. places from wiiicli aiul to which sho is hound. 11' he fails so to do, and no reasonahle cause for such failure is shown, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrongful act, neglect, or default. Sec. 2. That every master or person in charge of a United States vessel who fails, without reasonable cause, to render such assistance or give such informa- tion as aforesaid shall be deemed guilt}^ of a misdemeanor, and shall be liable to a penalty of one thousand dollars, or imprisonment for a term not exceeding two years; and for the above sum the vessel shall be liable and may be seized and proceeded against by process in any district court of the Unitixl States by any person; one-half such sum to be payable to the informer and the other half to the United States.— (26 Stat., 425, chap. 875.) [1890, Sept. 25. Badges, military societies.] That the distinctive badges adopted by military societies of men who served in the armies and navies of the United States in the war of the Revolution, the war of eighteen hundred and twelve, the Mexican war, and the war of the rebellion respectively, may be worn upon all occasions of ceremony by officers and enlisted men of the Army and Navy of the United States, who are members of said organizations in their own right.— (26 Stat., 681, Res. No. 50.) See note to section 1407, Revised Statutes. [1891, Mar. 2. Purchase and issue of naval supplies.] All supplies here- after purchased wdth moneys appropriated for any branch of the naval estab- lisliment shall be purchased, classified, and issued for consumption or use subject to the provisions contained in the act making appropriations for the naval service, approved June thirtieth, eighteen hundred and ninety, in refer- ence to supplies therein provided for and on hand. — (26 Stat., 807, chap. 494.) The provisions contained in the act of June 30, 1890 (26 Stat., 205), referred to above, are as follows : "All supplies purchased with moneys appropriated by this act shall be deemed to be purchased for the Navy and not for any bureau thereof, and these supplies, together with all supplies now on hand, sliall be arranged, classified, consolidated, and catalogued, and issued for consumption or use, under such regu- [1891, Mar. 3, sec. 4. Ocean mail vessels, construction of, approval by Secretary of the Navy.] That all steam-ships of the first, second, and third classes employed as above and hereafter built shall be constructed with par- ticular reference to prompt and economical conversion into auxiliary naval cruisers, and according to plans and specifications to be agreed upon by and between the owners and the Secretary of the Navy, and they shall be of sufficient strength and stability to carry and sustain the working and operation of at least four effective rifled cannon of a caliber of not less than six inches, and shall be of the higliest rating knowTi to maritime commerce. And all vessels of said tliree classes heretofore built and so employed shall, before they are accepted for the mail service herein provided for, be thorouglily inspected by a competent naval officer or constructor detailed for that service by the Secretary of the Navy; and such officer shall report, in writing, to the Secre- tary of the Navy, who shall transmit said report to the Postmaster-General; lations as the Secretary may prescribe, without regard to the bureau for which they were purchased." See act of March 2. 1889 (25 Stat., 818), and sections 418, 3676, 3689, and 3718, Re- vised Statutes, and notes to said act and sections; see also act of March 4, 1911 (.36 Stat., 1279), and note thereto, as to naval supply account. 1216 Pt. 3. STATUTES AT LARGE. Mar. 3, 1891. and no such vessel not approved by the Secretary of the Navy as suitable for the service requu'ed shall be emploj^ed by the Postmaster-General as pro- vided for in this act.— (26 Stat., 831-832, chap. 519.) See note to section 388, Re\ised Statutes; and see act of June 5, 1920 (41 Stat., 988). [1891, Mar. 3, sec. 7. Ocean mail vessels, naval oflBcers serving on.] That ofl&cers of the United States Navy may volunteer for service on said mail vessels, and when accepted by the contractor or contractors may be assigned to such duty by the Secretary of the Navy whenever in his opinion such assign- ment can be made without detriment to the service, and while in said employ- ment they shaU receive furlough pay from the Government, and such other compensation from the contractor or contractors as may be agreed upon by the parties: Provided, That they shall only be required to perform such duties as appertain to the merchant service. — (26 Stat., 832, chap. 519.) See sections 1442 and 1557, Re\ised Statutes, as to furlough of naval ofTicers. [1891, Mar. 3, sec. 9. Ocean mail vessels, use of as transports or cruisers.] That such steamers may be taken and used by the United States as transports or cruisers, upon pavment to the owners of the fair actual value of the same at the time of the taking, and if there shall be a disagreement as to the fair actual value of the same at the time of the taking, and if there shall be a disagreement as to the fair actual between the United States and the owners, then the same shall be determined by two impartial appraisers, one to be appointed by each of said parties, they at the same time selecting a third, who shall act in said appraisement in case the two shall fail to agree. — (26 Stat., 832, chap. 519.) See act of May 10, 1892, section 4 (27 Stat., 28). [1891, Mar. 3. Assistant Secretary of the Navy.] For compensation of * * * Assistant Secretar}- of the Navy, who shall hereafter perform such duties as may be prescribed by the Secretary of the Navy or required by law, * * *.— (26 Stat., 934, chap. 541.) See act of July 11, 1890 (26 Stat., 254\ and note to section 415, Re\-ised Statutes. [1891, Mar. 3. Artificial limbs; commutation.] Artificial limbs: For furnishing artificial limbs and apparatus, or commutation therefor, * * * and hereafter in case of commutation the money shall be paid directly to the soldier, sailor, or marine, and no fee or compensation shall be allowed or paid to any agent or attorney. — (26 Stat., 979, chap. 542.) See note to section 1176, Re\ised Statutes. [1891, Mar. 3. Enlistment of indigent boys in Navy.] The register of wUls shall prepare papers in connection with appointment of guardians to enable indigent bo3's to enlist in the United States Navy as provided by law, without making any charge therefor. — (26 Stat., 1063, chap. 546.) See note to section 1419, Revised Statutes, and note thereto. The above provision is contained in the Dis- trict of Columbia appropriation act, and refers to the Register of "Wills in the District of Columbia. [1891, Mar. 3. Pensions not allowed persons in naval service.] That hereafter no pension shall be allowed or paid to any officer, non commissioned 1217 July 19. 1892. Pt. S. STATUTES AT LARGE. ofTuor, or private in the Army, Navy, or Marine Corps of the United States, either on the active or retired list. — (26 Stat., 1082, chap. 548.) [1892, Apr. 12. Naval Observatory, facilities allowed students, etc.] The facihties for research and illustration in the following and any other Govern- mental collections now existing or hereafter to be established in the city of Washington for the promotion of knowledge shall be accessible, under such rules and restrictions as the officers in charge of each collection may prescribe, subject to such authority as is now or may hereafter be permitted by law, to the scientific investigators and to students of any institution of higher edu- cation now incorporated or hereafter to be incorporated under the laws of Con- gress or of the District of Columbia, to wit: * * * * * * * Twelve. Of the Naval Observatory.— (27 Stat., 395, Res. No. 8.) See act of March 3, 1901 (31 Stat., 1039). [1892, May 10, sec. 4. Merchant vessels, use of as transports or cruisers.] That any steamships so registered imder the provisions of this act may be taken and used by the United States as cruisers or transports upon payment to the o\\Tiers of the fair actual value of the same at the time of the taking, and if there shall be a disagreement as to the fair actual value at the time of taking between the United States and the owners, then the same shall be determined by tw^o impartial appraisers, one to be appointed by each of said parties, who, in case of disagreement, shall select a tlnrd, the award of any two of the three so chosen to be final and conclusive. — (27 Stat., 28, chap. 63.) See acts of March 3, 1891, section 9 (26 Stat., 832), and September 7, 1916, section 10 (39 Stat., 731). This section was part of an act providing for American registry of certain foreign-built steamships "now" engaged in freight and passenger business. [1892, July 16. Buildings rented in District of Columbia; report to Con- gress.] That hereafter it shall be the duty of the Secretary of the Treasury to cause to be prepared and submitted to Congress each year, in the annual Book of Estimates of Appropriations, a statement of the buildings rented within the District of Columbia for the use of the Government, the purposes for which rented, and the annual rental of each. — (27 Stat., 199, chap. 196.) 1883 (22 Stat., 552); and notes to sections 415, 429, and 430, Revised Statutes. See act of May 1, 1913, section 3 (38 Stat., 3); see also acts of March 3, 1877 (19 Stat., 370), August 5, 1882 (22 Stat., 241), and March 3, [1892, July 19. Change in name of Bureau.] Bureau of Provisions and Clothing, hereafter to be called Bureau of SuppMes and Accounts. — (27 Stat., 243, chap. 206.) See section 419, Revised Statutes, and note thereto. [1892, July 19. Bureau of Supplies and Accounts; duties.] All laws now in force relating to the Bureau of Provisions and Clothmg shall now and hereafter apply to the Bureau of Supphes and Accounts. — (27 Stat., 245, chap. 206.) See section 419, Revised Statutes, and note thereto. [1892, July 19. Employment on shore duty.] And the provisions of section two of the naval appro|)riation act ap]>roved March third, eighteen hundred and eighty-three, shall be so modified that liereafter orders of the Secretary of 1218 Pt. 3. STATUTES AT LARGE. Aug. 1, 1892. the Navy employing officers on shore duty shall state that such employment is required by the public interests, but need not state the duration of such serv- ice.— (27 Stat., 245, chap. 206.) See act of March 3, 1883, section 2 (22 Stat., 481); and see note to section 1571, Re^dsed Statutes. [1892, July 28. Promotions, commissioned officers of Marine Corps.] That hereafter promotions to every grade of commissioned officers in the Marine Corps below the grade of commandant shall be made in the same manner and under the same conditions as now are or may hereafter be prescribed, in pur- suance of law, for commissioned officers of the Army: Provided, That examining boards which may be organized under the provisions of this act to determine the fitness of officers of the Marine Corps for promotion shall in all cases consist of not less than five officers, tliree of whom shall, if practicable, be officers of the Marine Corps, senior to the officer to be examined, and two of whom shall be medical officers of the Navy: Provided J urther, That when not practicable to detail officers of the Marine Corps as members of such examining boards, officers of the line in the Navy shall be so detailed. — (27 Stat., 321, chap. 315.) See sections 1599, 1605-1607, Revised Statutes, and notes thereto. [1892, Aug. 1. Eight-hour law, Government work.] Section 1. That the service and employment of all laborers and mechanics who are now, or may hereafter, be employed by the Government of the United States or the District of Columbia, or by any contractor or subcontractor, upon a public work of the United States or of the District of Columbia, and of all persons who are now, or may hereafter be, employed by the Government of the United States or the District of Columbia, or any contractor or subcontractor, to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia, is hereby limited and restricted to eight hours in any one calendar day; and it shall be unlawful for any officer of the United States Government or of the District of Columbia, or any such contractor or subcontractor whose duty it shall be to employ, direct, or control the services of such laborers or mechanics or of such persons employed to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia, to require or permit any such laborer or mechanic or any such person employed to per- form services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia, to work more than eight hours in any calendar day, except in case of extraordinary emergency: Provided, That nothing in tliis Act shall apply or be construed to apply to persons employed in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia while not directly operating dredging or rock excavating machinery or tools, nor to persons engaged in construction or repair of levees or revetments necessary for protection against floods or overflows on the navigable rivers of the United States. 1219 Mar. 3. 1893. Pf. ?. STATUTES AT LARGE. VIOLATION OF ACT BY OFFICER OR CONTRACTOR PUNISHABLE. Sec. 2. That any ofRcer or agent of the Government of the United States or of the District of Cohimbia, or any contractor or subcontractor whose duty it shall be to employ, direct, or control any laborer or mechanic employed upon a public work of the United States or of the District of Colmnbia, or any person employed to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia, who shall intentionally violate any provision of this Act, shall be deemed guilty of a misdemeanor, and for each and every such offense shall, upon conviction, be punished by a fine not to exceed one thousand dollars, or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court having jurisdiction thereof. EXISTING CONTRACTS NOT AFFECTED BY ACT. Sec. 3. That the provisions of this Act shall not be so construed as to in any manner apply to or affect contractors or subcontractors, or to limit the hours of daily service of laborers or mechanics engaged upon a public work of the United States or of the District of Columbia, or persons employed to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia, for wliich contracts have been entered into prior to the passing of this Act or may be entered into under the provisions of appropriation Acts approved prior to the passage of this Act. — (27 Stat., 340, chap. 352; 37 Stat., 726-727, chap. 106.) This act was expressly amended and reenacted to read as above by act of March 3, 1913 (37 Stat., 726-727). See act of June 19, 1912 (37 Stat., 137), which prescribed contract provisions relating to hours of labor. Hours of labor were previously fixed by section 3738, Revised Statutes. Suspension of eight-hour law in case of national emergency: See act March 4, 1917 (39 Stat., 1192). [1893, Mar. 3. Detective agencies, employment of, restricted.] That here- after no employee of the Pinkerton Detective Agency, or similar agency, shall be employed in any Government service or by any officer of the District of Columbia.— (27 Stat., 591, chap. 208.) See note to Constitution, fourth amendment, under "Arrest of military offenders." [1893, Mar. 3, sec. 3. Draping public buildings in mourning.] That here- after no building owTied, or used for public purposes, by the Government of the United States, shall be draped in mourning and no part of the public fund shall be used for such purpose. — (27 Stat., 715, chap. 211.) [1893, Mar. 3, sec. 4. Closing Departments for deceased ex-officials.] That hereafter the Executive Departments of the Government shall not be closed as a mark to the memory of any deceased ex-official of the United States. — (27 Stat., 715, chap. 211.) [1893, Mar. 3, sec. 5. Hours of labor; leaves of absence; condition of busi- ness, reports of.] Hereafter it shall be the duty of the heads of the several Executive Departments, in the interest of the public service, to reqtiire of all clerks and other employees, of whatever grade or class, in their respective 1220 Pt. 3. STATUTES AT LARGE. Mar. 3, 1893. Departments, not less than seven hours of Labor each day, except Sundays and days declared public holidays by law or Executiye order: Provided, That the heads of the Departments may, by special order, stating the reason, further extend the hours of any clerk or employee in their Departments, respectively ; but in case of an extension it shall be without additional compensation: Pro- vided furtlier, That the head of any Department may grant thirty days' annual leave with pay in any one year to each clerk or employee: And 'provided fur- ther, That where some member of the immediate family of a clerk or employee is afflicted vnih. a contagious disease and requires the care and attendance of such employee, or where his or her presence in the Department would jeopardize the health of fellow-clerks, and in exceptional and meritorious cases, where a clerk or employee is personally ill, and where to limit the annual leave to thirty days in any one calendar year would work peculiar hardship, it may be extended, in the discretion of the head of the Department, with pay, not exceeding thirty days in any one case or in any one calendar year. This section shall not be construed to mean that so long as a clerk or employee is borne upon the rolls of the Department in excess of the time herein provided for or granted that he or she shall be entitled to pay during the period of such, excessive absence, but that the pay shall stop upon the expiration of the granted leave. Hereafter it shall be the duty of the head of each Executive Department to require monthly reports to be made to him as to the condition of the public business in the several bureaus or offices of his Department at Washington; and in each case where such reports disclose that the public business is in arrears, the head of the Department in. which such arrears exist shall require, as provided herein, an extension of the hours of service to such clerks or employ- ees as may be necessary to bring up such arrears of public business. Hereafter it shall be the duty of the head of each Executive Department, or other Government establishment at the seat of government, not under an Executive Department, to make at the expiration of each quarter of the fiscal year a ■s\Titten report to the President as to the condition of the public business in his Executive Department or Government establishment, and whether any branch thereof is in aiTears. — (27 Stat., 715, chap. 211; 30 Stat,, 316-317, chap. 68.) This section was expressly amended and re- enacted to read as above by act of March 15, 1898 (30 Stat., 316-.317, section 7). Pre^^.ously, the hours of labor and leaves of absence of employees in the Executive Departments had been fixed by act of March 3, 1883, section 4 (22 Stat., 503). See also section 162, Re\ised Statutes, and notes thereto. The above section was modified by acts of July 7, 1898 (30 Stat., 653), and February 24, 1899, section 4 (30 Stat., 890), relating to leaves of absence. As to holidays, see notes to sections 162 and 1545, Revised Statutes. As to leaves of absence, employees at navy yards and stations, see note to section 1545, Revised Statutes. As to arrears of work, see sections 174-175, Re- i-ised Statutes. As to reports required to be made by heads of departments, see section 429, Re\ised Statutes, and note thereto. [1893, Mar. 3. Commencement of pay, officers commissioned from graduates of the Naval Academy.] And every naval cadet or cadet engineer who has heretofore graduated or may hereafter graduate from the Naval Academy, and who has been or may hereafter be commissioned, within six months after such 1221 Mar. 3, 1893. rt. ,?. STATUTES AT LARGE. A sliphtlv different provision in the act of Jiih' 19, 1892 (27 Stat., 236), was superseded by this enactment. As to commencement of pay of officers of the Navy, see sections 1560 — 1562. Revised Statutes, and notes thereto. graduation, an officer in the Navy or Marine Corps of the United States, under the laws appointing such graduate to the Navy or Marine Corps, shall be allowed the pay of the grade in which he may be so commissioned from the date he takes rank as stated in his commission to the date of qualification and acceptance of his commission. — (27 Stat., 716, chap. 212.) As to change in title of students at the Naval Academy, see note to section 1512, Revised Statutes; and see note to section 1522, Re- vised Statutes, as to cadet engineers. As to appointment of ^Taduatesto commissioned grades in the Kavy and Marine Corps, see note to section 1521, Revised Statutes. [1893, Mar. 3. Chief of Bureau of Construction and Repair.] Any Naval Constructor having the rank of Captain, Commander or Lieutenant Com- mander shall be eligible as Chief of the Bureau of Construction and Repair. — (27 Stat., 716, chap. 212.) See note to section 423, Revised Statutes. [1893, Mar. 3. Credits to "Pay miscelleaneous."] Hereafter the accounting officers of the Treasur}^ are hereby authorized to credit appropriation "Pay miscellaneous," with all receipts for interest on the account of the Navy Depart- ment with the London fiscal agents, premiums arising from sales of bills of exchange, and from any appreciation in the value of foreign coin. — (27 Stat., 716, chap. 212.) [1893, Mar. 3. Fraudulent enlistment.] And fraudulent enlistment, and the receipt of any pay or allowance thereunder, is hereby declared an offense against naval discipline and made punishable by general court-martial, under article twenty- two of the articles for the government of the Navy; but this pro- vision shall not take effect until sixty days after the passage of this act. — (27 Stat., 716, chap. 212.) See note to section 1624, article 22, Revised Statutes. [1893, Mar. 3. Assistant to chief, Bureau of Navigation.] That an officer of the Navy not below the rank of commander may be detailed as assistant to the Chief of the Bureau of Navigation in the Navy Department, and such officer shall receive the highest pay of his grade, and, in case of the death, resignation, absence, or sickness of the Chief of the Bureau, shall, unless other- wise directed by the President, as provided by section one hundred and seventy- nine of the Revised Statutes, perform the duties of such Chief until his successor is appointed or such absence or sickness shall cease. — (27 Stat., 717, chap. 212.) See sections 177-182, and 421, Re^dsed Statutes, and notes thereto. [1893, Mar. 3. Purchase of discharge.] In time of peace the President may in his discretion, and under such rules and upon such conditions as he may prescribe, permit any enlisted man to purchase his discharge from the Navy or Marine Corps, the amounts received therefrom to be covered into the Treasury.— (27 Stat., 717, chap. 212.) Furlough without pay, under the same condi- tions and in lieu of discharge by purchase, was authorized bv act of August 29, 1916 (39 Stat., 580.) See note to section 1418, Re\'ised Statutes, as to refund of enlistment boiinty. 1222 Pt. 3. STATUTES AT LARGE. Mar. 29, 1894. [1893, Mar. 3. Gun steel and armor to be advertised for.] That no contract for the purchase of gun steel or armor for the Navy shall hereafter be made until the subject-matter of the same shall have been submitted to pubhc competition by the Department by advertisement. — (27 Stat., 732, chap. 212.) The Secretary of the Navy was authorized and directed to pro\'ide for the erection or purchase of a factory for the manufacture of armor for naval vessels, by act of August 29, 1916 (39 Stat., 563). Identical pro\isions were contained in acts of March 2, 1891 (26 Stat., 815), and July 19, 1892 (27 Stat., 251). See sections 3718 and 3721, ReA-ised Statutes, and notes thereto, as to purchases for the Navy. [1893, Oct. 31. Derelicts, etc., marking and removal of.] That the Presi- dent of the United States be, and he is hereby, authorized to make with the several governments interested in the navigation of the North Atlantic Ocean an international agreement providing for the reporting, marking, and removal of dangerous wrecks, derelicts, and other menaces to navigation in the North Atlantic Ocean outside the coast waters of the respective countries bordering thereon.— (28 Stat., 13, Res. No. 13.) See act of ^^larch 3, 1905 (33 Stat., 1164), and see notes to sections 1529 and 1536, ReAdsed Statutes. [1894, Mar. 29. Property returns.] That instead of forwarding to the accounting officers of the Treasury Department retm^ns of public property entrusted to the possession of officers or agents, the Quartermaster-General, the Commissary-General of Subsistence, the Surgeon-General, the Chief of Engineers, the Chief of Ordnance, the Chief Signal Officer, the Paymaster- General of the Navy, the Commissioner of Indian Affairs, or other like chief officers in any Department, by, through, or under whom stores, supphes, and other pubhc property are received for distribution, or whose duty it is to receive or examine retm^ns of such property, shall certify to the proper account- ing officer of the Treasmy Department, for debiting on the proper account, any charge against any officer or agent intrusted with pubhc property, arising from any loss, accruing by his fault, to the Government as to the property so intrusted to him. Sec. 2. That said certificate shall set forth the condition of such officer's or agent's property returns, that it includes all charges made up to its date and not previously certified, that he has had a reasonable opportunity to be heard and has not been reheved of responsibihty; the effect of such certificate, when received, shall be the same as if the facts therein set forth had been ascertained by the accounting officers of the Treasury Department in accoimting. Sec. 3. That the manner of making property returns to or in any adminis- trative bureau or department, or of ascertaining liability for property, under existing laws and regulations, shall not be affected by this Act, except as provided in section one ; but in all cases arising as to such property so intrusted the officer or agent shall have an opportunity to reheve himself from liability. Sec. 4. That the heads of the several Departments are hereby empowered to make and enforce regulations to carry out the provisions of this Act. Sec. 5. That all laws or parts of laws inconsistent with the provisions of this Act are hereby repealed. — (28 Stat., 47, chap. 49.) See note to section 236, Re\ised Statutes, under "III. Limitations upon jurisdiction," and note to section 1549, Revised Statutes. 1223 July 31, 1894. Pt. 3. STATUTES AT LARGE. [1894, May 11. Wearing of badges, military societies.] That the dis- tinctive badge adopted by the Regular iVi'my and Navy Union of the United States may be worn, in their own right, upon all puljlic occasions of ceremony by ofhcers and enlisted men of the Ai'my and Navy of the United States who are members of said organization. — (28 Stat., 583, Kes. No. 26.) See note to section 1407, Re\'ised Statutes. [1894, June 28. Public holidays.] That the first Monday of September in each year, being the day celebrated and knowTi as Labor's Plolida}^, is hereby made a legal public holiday, to all intents and purposes, in the same manner as Christmas, the first day of January, the twenty-second day of February, the thirtieth day of May, and the fourth day of July are now made by law pubhc holidays.— (28 Stat., 96, chap. 118.) See note to section 1545, Revised Statutes. [1894, July 26. Assistant to Chief, Bureau of Supplies and Accounts.] That an officer of the pay corps of the Navy may be detailed as assistant to the Chief of the Bureau of Supplies and Accounts in the Navy Department, and that such officer shall, in case of the death, resignation, absence, or sickness of the Chief of the Bureau, unless otherwise directed by the President, as provided by section one hundred and seventy-nine of the Revised Statutes, perform the duties of such chief until his successor is appointed or such absence or sickness shall cease. — (28 Stat., 132, chap. 165.) See acts of March 3, 1899 (30 Stat., 1038), and February 25, 1903 (32 Stat., 890); see also, sections 177-182, and 421, Revised Stat- utes, and notes thereto. The designation of the "Pay Corps" was changed to "Supply Corps" by an act of July 11, 1919 (41 Stat., 147). [1894, July 31, sec. 6. Comptroller of the Treasury, to prescribe forms of keeping accounts, etc.] The Comptroller of the Treasury shall, under the direction of the Secretary of the Treasury, prescribe the forms of keeping and rendering all public accounts, except those relating to the postal revenues and expenditures therefrom. — (28 Stat., 206, chap. 174.) See sections 236-310, Revised Statutes, and notes thereto. [1894, July 31, sec. 7. Auditor for the Navy Department, duties of.] The Auditor for the Navy Department shall receive and examine all accounts of salaries and incidental expenses of the office of the Secretary of the Navy, and of all bureaus and offices under his direction, all accounts relating to the Naval Establishment, Marine Corps, Naval Academy, and to all other business within the jurisdiction of the Department of the Navy, and certify the balances arising thereon to the Division of Bookkeeping and Warrants, and send forthwith a copy of each certificate to the Secretary of the Navy. — (28 Stat., 207, chap. 174.) See sections 236-310, Revised Statutes, and notes thereto. [1894, July 31, sec. 8. Auditor's settlements conclusive, unless revised by Comptroller.] Tlie balances which may from time to time be certified by the Auditors to the Division of Bookkeeping and Warrants, or to the Postmaster General, upon the settlements of public accounts, shall be final and conclusive upon the Executive Branch of the Government, except that any person whose accounts may have been settled, the head of the Executive Department, or of 1224 Pt. 3. STATUTES AT LARGE. July 31, 1894. the board, commission, or establishment not under the jurisdiction of an Executive Department to which the account pertains, or the Comptroller of the Treasury, may, within a year, obtain a revision of the said accoimt by the Comptroller of the Treasury, whose decision upon such revision shall be final and conclusive upon the Executive Branch of the Government: Provided, That the Secretary of the Treasury may, when in his judgment the interests of the Government require it, suspend payment and direct the re-examination of any account.^ — (28 Stat., 207, chap. 174.) See sections 236-310, Revised Statutes, and notes thereto. [1894, July 31, sec. 8. Effect of accepting payment; suspension of items in accounts.] Any person accepting payment under a settlement by an Auditor shall be thereby precluded from obtaining a revision of such settlement as to any items upon which payment is accepted; but nothing in this Act shall pre- vent an Auditor from suspending items in an account in order to obtain further evidence or explanations necessary to their settlement. When suspended items are finally settled a revision may be had as in the case of the original settlement. Action upon any account or business shall not be delayed awaiting applications for revision: Provided, That the Secretary of the Treasury shall make regulations fixing the time which shall expire before a warrant is issued in payment of an account certified as provided in sections seven and eight of this Act.— (28 Stat., 208, chap. 174.) See sections 236-310, Revised Statutes, and notes thereto. [1894, July 31, sec. 8. Auditors to submit decisions to Comptroller for approval, etc.] All decisions by Auditors making an original construction or modifying an existing construction of statutes shall be forthwith reported to the Comptroller of the Treasury, and items in any account affected by such decisions shall be suspended and payment thereof witliheld until the Comp- troller of the Treasury shall approve, disapprove, or modify such decisions and certify his actions to the Auditor. All decisions made by the Comptroller of the Treasury under this Act shall be forthwith transmitted to the Auditor or Auditors whose duties are affected thereby. — (28 Stat., 208, chap. 174.) [1894, July 31, sec. 8. Advance decisions of Comptroller; effect of.] Dis- bursing officers, or the head of any Executive Department, or other establish- ment not under any of the Executive Departments, may apply for and the Comptroller of the Treasury shall render his decision upon any question involv- ing a payment to be made by them or under them, which decision, when rendered, shall govern the Auditor and the Comptroller of the Treasury in passing upon the account containing said disbursement. — (28 Stat., 208, chap. 174.) See notes to sections 236, 285, 286, and 356, Revised Statutes. [1894, July 31, sec. 11. Requisitions for advances of money.] Every requisition for an advance of money, before being acted on by the Secretary of the Treasury, shall be sent to the proper Auditor for action thereon as required by section twelve of this act. — (28 Stat., 209, chap. 174.) [1894, July 31, sec. 12. Time for rendering- accounts; delinquency; requisi- tions for advances disapproved.] All montlily accounts shall be mailed or otherwise sent to the proper officer at Washington within ten days after the end of the month to which they relate, and quarterly and othef accounts within 1225 July 31, 1894. Pt. 3. STATUTES AT LARGE. twenty days aft^r the period to which they relate, and shall be transmitted to and received by the Auditors within twenty days of their actual receipt at the proper office in Washington in the case of monthly, and sixty days in the case of quarterly and other accounts. Should there be any delinquency in this regard at the time of the receipt by the Auditor of a requisition for an advance of money, he shall disapprove the requisition, which he may also do for other reasons arising out of the condition of the officer's accounts for whom the ad- vance is requested ; but the Secretary of the Treasury may overrule the Audi- tor's decision as to the sufficiency of these latter reasons: Provided, That the Secretary of the Treasury shall prescribe suitable rules and regulations, and maj' make orders in particular cases, relaxing the requirement of mailing or otherwise sending accounts, as aforesaid, within ten or twenty days, or waiving delinquency, in such cases only in which there is, or is likely to be, a manifest physical difficulty in complying with the same, it being the purpose of this provision to require the prompt rendition of accomits without regard to the mere convenience of the officers, and to forbid the advance of money to those delinquent in rendering them. — (28 Stat., 209, chap. 174.) See section 3622, ReATsed Statutes, and note thereto. [1894, July 31, sec. 12. Delay by administrative department in forwarding accounts ; effect on requisitions.] That should there be a delay by the adminis- trative Departments beyond the aforesaid twenty or sixty days in transmitting accounts, an order of the President, or, in the event of the absence from the seat of Government or sickness of the President, an order of the Secretary of the Treasury, in the particular case, shall be necessary to authorize the advance of money requested.— (28 Stat., 209, chap. 174; 28 Stat., 807, chap. 177.) This clause was expressly amended and reen- acted to read as above by act of Mai'ch 2, 1895, section 4 (28 Stat., 807.) By section 3622, Re\'ised Statutes, accounts of Navy dLsbm-sing officers are to be rendered to the accounting officers direct. [1894, July 31, sec. 12. Report of delinquency to be made to Congress.] The Secretary of the Treasury shall, on the first JVlonda}" of January in each year, make report to Congress of such officers and administrative departments and offices of the Government as were, respectively, at any time during the last preceding fiscal year delinquent in rendering or transmitting accounts to the proper offices in Washington and the cause therefor, and in each case indi- cating whether the delinquency was waived, together with such officers, includ- ing postmasters and officers of the Post Office Department, as were found upon final settlement of their accounts to have been indebted to the Government, with the amount of such indebtedness in each case, and who, at the date of making report, had failed to pay the same into the Treasury of the United States.— (28 Stat., 209, chap. 174; 29 Stat., 179, chap. 252.) This provision was expressly amended and reen- acted to read as above by act of May 28, 1896, section 4 (29 Stat., 179). [1894, July 31, sec. 14. Claims not administratively examined.] In the case of claims presented to an Auditor wliich have not had an administrative examination, the Auditor shall cause them to be examined by two of his sub- ordinates independently of each other. — (28 Stat., 210, chap. 174.) See section 3622, Revised Statutes, excepting accounts of Navy disbursing officers from administrative examination. 122Q See notes to sections 176, 236-310, and 1376, Re- vised Statutes. Pt. 3. STATUTES AT LARGE. Aug. 13, 1894. [1894, July 31, sec. 22. Reg-ulations requiring administrative examination of accounts.] It shall also be the duty of the heads of the several Executive Departments and of the proper officers of other Government establishments, not within the jurisdiction of any Executive Department, to make appropriate rules and regulations to secure a proper administrative examination of all accounts sent to them, as required by section twelve of this Act, before their transmission to the Auditors, and for the execution of other requirements of this Act in so far as the same relate to the several Departments or establish- ments.— (28 Stat., 211, chap. 174.) ined by and through the administrative heads of di\dsions and biu-eaus in the execu- tive departments and not by the disbursing clerks of said departments, except those vouchers heretofore prepared outside of Washington may continue to be so prepared and the disbursing officers shall make only such examination of vouchers as may be necessary to ascertain whether they repre- sent legal claims against the United States." See section 3622, Revised Statutes, excepting accounts of Navy disbursing officers from administrative examination. By act of August 23, 1912 (37 Stat., 375), it was pro\dded that "Hereafter the administra- tive examination of all public accounts, pre- liminary to their audit by the accounting officers of the Treasury, shall be made as contemplated by the so-called Dockery Act, approved July thirty-first, eighteen hundred and ninety-four, and all vouchers and pay rolls shall be prepared and exam- [1894, Aug. 13. Contractors on public works, protection of laborers and material men.] That hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work, or for repau-s upon any public building or public work, shall be required, before commencing such work, to execute the usual penal bond, with good and sufficient sureties, with the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor and materials in the prosecution of the work provided for in such contract; and any person, company, or corporation who has furnished labor or materials used in the construction or repair of any public building or public work, and payment for which has not been made, shall have the right to intervene and be made a party to any action instituted by the United States on the bond of the con- tractor, and to have their rights and claims adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claim and judgment of the United States. If the full amount of the liability of the surety on said bond is insufficient to pay the full amount of said claims and demands, then, after paying the full amount due the United States, the re- mainder shall be distributed pro rata among said interveners. If no suit should be brought by the United States witliin six months from the comple- tion and final settlement of said contract, then the person or persons supplying the contractor with labor and materials shall, upon application therefor, and furnishing affidavit to the Department under the direction of wliich said work has been prosecuted that labor or materials for the prosecution of such work has been supplied by him or them, and payment for wliich has not been made, be furnished with a certified copy of said contract and bond, upon which he or they shall have a right of action, and shall be, and are hereby, authorized to bring suit in the name of the United States in the circuit court of the United States in the district in wliich said contract was to be performed and executed, irrespective of the amount in controversy in such suit, and not elsewhere, for 54641°— 22 78 1227 Aug. 13. 1894. Pt. 3. STATUTES AT LARGE. hi.s or their use and benefit, ao;ainst said contractor and his sureties, and to prosecute the same to final judgment and execution: Provided, That where suit is instituted by any of such creditors on the bond of the contractor it shall not be commenced mitil after the complete performance of said contract and final settlement thereof, and shall be commenced wnthin one year after the performance and final settlement of said contract, and not later: And provided further, That where suit is so instituted by a creditor or by creditors, only one action shall be brought, and any creditor may file his claim in such action and be made party thereto within one year from the completion of the work under said contract, and not later. If the recovery on the bond should be inadequate to pay the amounts found due to all of said creditors, judgment shall be given to each creditor pro rata of the amount of the recovery. The surety on said bond may pay into court, for distribution among said claimants and creditors, the full amount of the sureties' liability, to wit, the penalty named in the bond, less any amount which said surety may have had to pay to the United States by reason of the execution of said bond, and upon so doing the surety will be reheved from f mother liabihty: Provided further, That in all suits instituted under the provisions of this Act such personal notice of the pendency of such suits, informing them of their right to intervene as the com't may order, shall be given to all known creditors, and in addition thereto notice of pubhcation in some newspaper of general circulation, published in the State or town where the contract is being performed, for at least three successive weeks, the last publication to be at least three months before the time limited therefor.— (28 Stat., 278, chap. 280; 33 Stat., 811-812, chap. 778.) to acceptance of Liberty or other United States bonds; and see note to section 1383, Revised Statutes, on general subject of bonds. This act was expressly amended and reenacted to read as above by act of Februaiy 24, 1905 (33 Stat., 811-812) ; see also act of February 24, 1919, section_1320 (40 Stat., 1148), for further modification of this act with respect [1894, Aug-. 13. Bonds, surety companies, when accepted.] That whenever any recognizance, stipulation, bond, or imdertaking conditioned for the faithful performance of any duty, or for doing or refraining from doing anything in such recognizance, stipulation, bond, or undertaking specified, is by the laws of the United States required or permitted to be given with one surety or with two or more sureties, the execution of the same or the guaranteeing of the performance of the condition thereof shall be sufficient when executed or guaranteed solely by a corporation incorporated luider the laws of the United States, or of any State having power to guarantee the fidelity of persons holding positions of public or private trust, and to execute and guarantee bonds and undertakings in judicial proceedings: Provided, That such recognizance, stipulation, bond, or undertaking be approved by the head of department, court, judge, officer, board, or body executive, legislative, or judicial required to approve or accept the same. But no officer or person having the approval of any bond shall exact that it shall be furnished by a guarantee company or by any particular guarantee company. — (28 Stat., 279, chap. 282.) Sec. 2. That no such company shall do business under the provisions of this Act beyond the limits of the State or Territory under whose laws it was incorporated and in which its principal office is located, nor beyond the limits 1228 Pt. 3. STATUTES AT LARGE. Aug. 13, 1894. of the District of Columbia, when such company was incorporated under its laws or the laws of the United States and its principal oflice is located in said District, until it shall by a written power of attorney appoint some person residing within the jurisdiction of the court for the judicial district wherein such suretyship is to be undertaken, who shall be a citizen of the State, Terri- tory, or District of Columbia, wherein such court is held, as its agent, upon whom may be served all lawful process against such company, and who shall be authorized to enter an appearance in its behalf. A copy of such power of attorney, duly certified and authenticated, shall be filed with the clerk of the district court of the United States for such district at each place where a term of such court is or may be held, wliich copy, or a certified copy thereof, shall be legal evidence in all controversies arising under this Act. If any such agent shall be removed, resign, or die, become insane, or otherwise incapable of acting, it shall be the duty of such company to appoint another agent in his place as hereinbefore prescribed, and until such appointment shall have been made, or dm-ing the absence of any agent of such company from such district, service of process may be upon the clerk of the court wherein such suit is brought, with like effect as upon an agent appointed by the company. The officer executing such process upon such clerk shall immediately transmit a copy thereof by mail to the company, and state such fact in his retm*n. A judgment, decree, or order of a court entered or made after service of process as aforesaid shall be as valid and binding on such company as if served with process in said district. — (28 Stat., 279, chap. 282.) Sec. 3. That every company, before transacting any business under this Act, shall deposit with the Secretary of the Treasury of the United States a copy of its charter or articles of incorporation, and a statement, signed and sworn to by its president and secretary, showing its assets and liabilities. If the said Secretary of the Treasury shall be satisfied that such company has authority under its charter to do the business provided for in this Act, and that it has a paid-up capital of not less than two hundi-ed and fifty thousand dollars, in cash or its eqmvalent, and is able to keep and perform its contracts, he shall grant authority in writing to such company to do business under this Act.— (28 Stat., 279, chap. 282; 36 Stat., 241, chap. 109.) This section Avas expressly amended and reenacted to read as above by act of March 23, 1910 (36 Stat., 241). Sec. 4. That every such company shall, in the months of January, April, July, and October of each year, file with the said Secretary of the Treasury a statement, signed and sworn to by its president and secretary, showing its assets and liabilities, as is required by section three of this Act. And the said Secretary of the Treasury shall have the power, and it shall be his duty, to revoke the authority of any such company to transact any new business under this Act whenever in his judgment such company is not solvent or is conduct- ing its business in violation of this Act. He may institute inquiry at any time into the solvency of said company and may require that additional security be given at any time by any principal when he deems such company no longer sufficient security.— (28 Stat., 279-280, chap. 282; 36 Stat., 241, chap. 109.) This section was expressly amended and reenacted to read as above by act of March 23, 1910 (36 Stat., 241). 1229 Jan. 12, 1895. Pt. S. STATUTES AT LARGE. Printing and Binding. Sec. 5, That any surety company doing business under the provisions of this Act may be sued in respect thereof in any court of the United States which lias now or hereafter may have juris(Uction of actions or suits upon such recognizance, stipulation, bond, or undertaking, in the district in which such recognizance, stipulation, bond, or undertaking was made or guaranteed, or in the district in which the principal office of such company is located. ^Vnd for the piu-poses of this Act such recognizance, stipulation, bond, or undertaking shall be treated as made or guaranteed in the district in which the office is located, to which it is returnable, or in which it is filed, or in the district in which the principal in such recognizance, stipulation, bond, or undertaking resided when it was made or guaranteed. — (28 Stat., 280, chap. 282.) Sec. 6. That if any such company shall neglect or refuse to pay any final judgment or decree rendered against it upon any such recognizance, stipulation, bond, or undertaking made or guaranteed by it under the provi- sions of this Act, from wliich no appeal, writ of error, or supersedeas has been taken, for thirty days after the rendition of such judgment or decree, it shall forfeit all right to do business under this Act. — (28 Stat., 280, chap. 282.) Sec. 7. That any company wliich shall execute or guarantee any recogniz- ance, stipulation, bond, or undertaking under the provisions of this Act shall be estopped in any proceeding to enforce the liability which it shall have assumed to incur, to deny its corporate power to execute or guarantee such instrument or assume such liability. — (28 Stat., 280, chap. 282.) Sec. 8. That any company doing business under the provisions of this Act which shall fail to comply with any of its provisions shall forfeit to the United States for every such failure not less than five hundred dollars nor more than five thousand dollars, to be recovered by suit in the name of the United States in the same courts in which suit may be brought against such company under the provisions of this Act, and such failure shall not affect the validity of any contract entered into by such company.^ (28 Stat., 280, chap. 282.) See sections 1383-1385, Revised Statutes, and notes thereto; see also act of February 24, 1919, section 1320 (40 Stat., 1148). [1895, Jan. 12, sec. 1. Public printing; Joint Congressional Committee.] There shall be a Joint Committee on Printing, consisting of tlu-ee Members of the Senate and three Members of the House of Representatives, who shall have the powers hereinafter stated. — (28 Stat., 601, chap. 23.) [1895, Jan. 12, sec. 2. Neglect or delay in printing; estimates required with order to print documents.] Paragraph 1. That the Joint Committee on Printing shall have power to adopt such measures as may be deemed necessary to remedy any neglect or delay in the execution of the public printing and binding. * * *. Par. 6. Either House may order the printing of a document not already provided for by existing law, but only when the same shall be accompanied by an estimate from the Public Printer as to the probable cost thereof. Any Executive Department, bureau, board, or independent office of the Govern- ment submitting reports or documents in response to inquiries from Congress shall submit therewith an estimate of the probable cost of printing to the usual nmnber. Nothing in this paragraph relating to estimates shall apply to reports 1230 Printing and Binding. Pt. S. STATUTES AT LARGE. Jan. 12, 1895. or documents not exceeding fift}^ pages. 34 Stat., 1012, 1013, chap. 2284.) This section was expressly amended and re- enacted to read as above by act of March 1, 1907, section 1 (34 Stat., 1012, 1013). Paragraph 1, as above set forth, "was further amended, but •ndthout express reference thereto, by the follo-v\-ing clause in the act of March l", 1919, sectionll (40 Stat., 1270): "The Joint Committee on Printing shall (28 Stat., 601, chap, 23; have power to adopt and employ such measures as, in its discretion, may be deemed necessary to remedy any neglect, delay, duplication, or waste in the public printing and binding and the distribution of Government publications." See also section 80 of this act, set forth below. [1895, Jan. 12, sec. 18. Printing and binding at Government Printing Office; duties of Public Printer.] It shall be the dutv of the Public Printer to purchase all materials and machinery which may be necessary for the Government Printing Office; to take charge of all matter which is to be printed, engraved, lithographed, or bound; to keep an account thereof in the order in which it is received, and to cause the work to be promptly executed; to superintend all printing and binding done at the Government Printing Office, and to see that the sheets or volumes are promptly delivered to the officer who is authorized to receive them. The receipt of such officer shall be a sufficient voucher for their delivery. — (28 Stat., 603, chap. 23.) All printing, binding, and blank-book work is required to be done at Government Print- ing Office, udth certain exceptions: See act of March 1, 1919, section 11 (40 Stat., 1270); and see section 87 of this act, set forth below. Distribution of documents for executive de- partments, etc., is to be done by Public Printer and not by such departments, with certain exceptions: See act of August 23, 1912, section 8 (37 Stat., 414). Supplies for executive departments, such as manifold blanks, forms, filing devices, etc., may be procured by Public Printer: See act of June 28, 1902, section 1 (32 Stat., 481). Time for furnishing copy for annual reports to Public Printer: See note to section 196, Revised Statutes. Restriction in detail of employees of Govern- ment Printing Office to duties not per- taining to work of printing and binding in any department: See act of June 25, 1910, (36 Stat., 770). [1895, Jan. 12, sec. 19. Annual report of printing and binding for De- partments.] The Pubhc Printer shall make annual report to Congress, and in it specify the number of copies of each Department report and document printed upon requisition by the head of the Department for which the printing was done, and he shall also specify in said report the exact number of copies of books, giving the titles of the books, bound upon requisition for Senators, Representatives, Delegates, and other officers of the Government and the cost thereof.— (28 Stat., 603, chap. 23.) See notes to sections 429-430, Revised Statutes; see also act of June 5, 1920 (41 Stat., 1037), as to reports required to be made to Con- gress by heads of departments concerning publications printed, etc. [1895, Jan. 12, sec. 22. Annual report of accounts with Departments, detailed statement of work done, etc.] The Public Printer shall, on the first day of each regular session, report to Congress the exact condition and the quantity and cost of all printing, binding, lithographing, and engraving; the quantity and cost of all paper purchased for the same; a detailed statement of all pro- posals and contracts entered into for the purchase of paper and other materials, and for lithographing and engraving; of all payments made, during the pre- ceding year, under his direction; of the quantity of work ordered and done, with a general classification thereof, for each Department, and a detailed state- ment of each account with the Departments or public officers; a classified 1231 Jan. 12, 1895. Pt. S. STATUTES AT LARGE. Printing and Binding. detailed statement of the number of hands employed and the sums paid to each; and such other information touching all matters connected with the Printing Ollico as may be in his possession. — (28 Stat., 604, chap. 23.) See note above, under section 19 of this act. [1895, Jan. 12, sec. 25. Stereotyping.] The Pubhc Printer shall cause to be stereotyped or electrotyped ail matter when there is a reason to believe that it will be needed a second time. — (28 Stat., 604, chap. 23.) [1895, Jan. 12, sec. 27. Estimates submitted by Public Printer.] He shall prepare and submit to the Secretary of the Treasury, annually, in time to have the same embraced in the estimates from that department, detailed esti- mates of the sums which wdl be required for salaries, wages, printing, engrav- ing, lithographing, bmding, materials, and other necessar}^ expenses of said Printing Office for the ensuing fiscal year. — (28 Stat., 604, chap. 23.) Soe sections 430 and 3661, Revised Statutes, and acts of March 2, 1895 (28 Stat., 961), and June 30, 1906, section 2 (34 Stat., 762). Printing and engra^dng for the Hydrogi-aphic Office are to be estimated for separately and in detail, and appropriated for sepa- rately. (Act Aug. 4, 1886, 24 Stat., 255.) [1895, Jan, 12, sec. 42. Printing documents for sale to applicants.] The Public Printer shall furnish to all applicants giving notice before the matter is put to press, not exceeding two hundred and fifty to any one applicant, copies of bills, reports, and documents, said applicants paying in advance the cost of such printing with ten per centum added: Provided, That the printing of such work for private parties shall not interfere with the printing for the Govern- ment.— (28 Stat., 607, chap. 23.) See sections 52, 61, and 67 of this act, set forth below. [1895, Jan. 12, sec. 51. Style of printing and binding.] The forms and style in which the printing or binding ordered by any of the Departments shall be executed, and the material and the size of type to be used, shall be deter- mined by the Public Printer, having proper regard to economy, workmansliip, and the purposes for which the work is needed. — (28 Stat., 608, chap. 23.) See sections 86 and 91 of this act, set forth below. [1895, Jan. 12, sec. 52. No Government publication to be copyrighted.] The Public Printer shall sell, under such regulations as the Joint Committee on Printing may prescribe, to any person or persons who may apply additional or duplicate stereotype or electrotype plates from which any Government publi- cation is printed, at a price not to exceed the cost of composition, the metal and making to the Government and ten per centum added: Provided, That the full amount of the price shall be paid when the order is filed: And provided further, That no publication reprinted from such stereotype or electrotype plates and no other Government publication shall be copyrighted. — (28 Stat., 608, chap. 23.) See sections 42, 61, and 67 of this act as to sale of publications. [1895, Jan. 12, sec. 54. "Usual number" of documents.] Wlienever any document or report shall be ordered printed by Congress, such order to print shall signify the ^' usual number" of copies for binding and distribution among those entitled to receive them. No greater number shall be printed unless ordered by either House, or as hereinafter provided. When a special number 1232 Printing and Binding. Pt. 3. STATUTES AT LARGE. Jan. 12, 1895. of a document or report is ordered printed, the usual number shall also be printed, unless akeady ordered. The usual number of documents and reports shall be one thousand six hundred and eighty-two copies, which shall be dis- tributed as follows: * * *.— (28 Stat., 608, chap. 23.) See section 73 of this act, and note thereto; see also Joint Resohition of January 15, 1908 (35 Stat., 565). [1895, Jan. 12, sec. 58. Departmental publications, distribution to libraries.] Whenever printing not bearing a Congressional number shall be done for any department or officer of the Government, except confidential matter, blank forms, and circular letters not of a public character, or shall be done for use of Congressional committees, not of a confidential character, two copies shall be sent, unless withheld by order of the committee, by the Public Printer to the Senate and House Libraries, respectively, and one copy each to the document rooms of the Senate and House, for reference; and these copies shall not be removed; and of all publications of the Executive Departments not intended for their especial use, but made for distribution, five hundred copies shall be at once delivered to the superintendent of documents for distribution to designated depositories and State and Territorial libraries. — (28 Stat., 610, chap. 23.) brary of Congress. (See Joint Res., Mar. 2, 1901, sec. 3, 31 Stat., 1465). Departmental publications printed elsewhere than at Government Printing Office, 62 or more copies shall be suppUed to the Li- [1895, Jan. 12, sec. 61. Superintendent of documents; sales by; other duties.] The PubHc Printer shall appoint a competent person to act as superin- tendent of documents, and shall fix his salary. The superintendent of docu- ments so designated and appointed is hereby authorized to sell at cost any public document in his charge, the distribution of which is not herein specifically directed, said cost to be estimated by the Public Printer and based upon printing from stereotyped plates ; but only one copy of any document shall be sold to the same person, excepting libraries or schools by wliich additional copies are deshed for separate departments thereof, and members of Congress; and whenever any officer of the Government having in his charge documents published for sale shall desire to be relieved of the same, he is hereby authorized to turn them over to the superintendent of documents, who shall receive and sell them under the provisions of this section. All moneys received from the sale of documents shall be returned to the Public Printer on the first day of each month and be by him covered into the Treasmy monthly, and the superintend- ent of documents shall report annually the number of copies of each and every document sold by him, and the price of the same. He shall also report monthly to the Public Printer the number of documents received by him and the disposi- tion made of the same. He shall have general supervision of the distribution of all public documents, and to his custody shall be committed all documents subject to distribution, excepting those printed for the special official use of the Executive Departments, which shall be delivered to said Departments, and those printed for the use of the two Houses of Congress, which shall be delivered to the folding rooms of said Houses and distributed or delivered ready for distribution to Members and Delegates upon their order by the superintendents of the folding rooms of the Senate and House of Representatives. — (28 Stat., 610, chap. 23.) 1233 Jan. 12, 1895. rt. S. STATUTES AT LARGE. Printing and Binding. See sections 42, r)2, and 07 of this act, and Joint Resolution of Nfaich 28, l!K)4 (33 Stat., 584), as to sale of documents. See act of August 23, 1912, section 8 (37 Stat., 414), as to distribution of departmental documents by Public Printer. [1895, Jan. 12, sec. 62. Departmental publications furnished superintendent of documents; index of documents to be published.] The supc'riiitondeiit of dociinioiits shall, at the clo.se of each regular session of Congress, prepare and ])ul)lish a comprehensive index of public documents, beginning with tlie Fifty- tliird Congress, upon sucli plan as shall be approved by the Joint Committee on Printing; and the Public Printer shall, immediately upon its publication, deliver to him a copy of each and every document printed by the Government Printing Office; and the head of each of the Executive Departments, bureaus, and ofFices of the Government shall deliver to him a copy of each and every document issued or published by such Department, bureau, or office not confidential in its char- acter. He shall also prepare and print in one volume a consolidated index of Congressional documents, and shall index such single volumes of documents as the Joint Committee on Printing shall direct. Of the comprehensive index and of the consolidated index two thousand copies each shall be printed and bound in addition to the usual number, two hundred copies for the use of the Senate, eight hundred copies for the use of the House, and one thousand copies for dis- tribution by the superintendent of documents. — (28 Stat., 610-611, chap. 23.) See section 69 of this act, set forth below. 1895, Jan. 12, sec. 67. Disposal of accumulated documents.] All documents at present remaining in charge of the several Executive Departments, bureaus, and offices of the Government not required for official use shall be delivered to the superintendent of documents, and hereafter all public documents accumu- lating in said Departments, bureaus, and offices not needed for official use shall be annually turned over to the superintendent of documents for distribution or sale.— (28 Stat., 611-612, chap. 23.) See sections 42, 52, and 61 of this act, as to sale of documents; see also Joint Resolution of March 28, 1904 (33 Stat., 584). [1895, Jan. 12, sec. 69. Catalogue of Government publications.] A catalogue of Government publications shall be prepared by the superintendent of docu- ments on the first day of each month, which shall show the documents printed during the preceding month, where obtainable, and the price thereof. Two thousand copies of such catalogue shall be printed in pamplilet form for distribu- tion.— (28 Stat., 612, chap. 23.) See section 62 of this act, set forth above. [1895, Jan. 12, sec. 73. Extra copies of certain documents to be printed.] Extra copies of documents and reports shall be printed promptly when the same shall be ready for publication, and shall be bound in paper or cloth as directed by the Joint Committee on Printing, and shall be of the number fol- lowing in addition to the usual number: * * *. — (28 Stat., 612, chap. 23.) Of the Ephemeris and Nautical Almanac and of the papers supplementary thereto, one thousand five hundred copies; one hundred copies for the Senate, four hundred for the House, and one thousand for distribution or sale by the Navy Department. The five hundred copies printed for Congress and the usual number shall be for the calendar year next following, and those for the 1234 Printing and Binding. Ft. 3. STATUTES AT LARGE. Jan. 12, 1895. Navy Department for the third year following. The Secretary of the Navy is also authorized to cause additional copies of the Ephenieris, and of the Nautical Almanacs extracted therefrom, to be printed for the public service and for sale to navigators and others: Provided, That all moneys received from sales of the Ephemeris and of the Nautical Almanacs shall be deposited in the Treasury and placed to the credit of the general fund for public printing. — (28 Stat., G13, chap. 23.) See joint resolution of May 13, 1902 (32 Stat., 740), and act of July 1, 1902 (32 Stat., 678); see also note to section 436, Revised Statutes. Of the Observations of the Naval Observatory, one thousand eight hun- dred copies; three hundred for the Senate, seven hundred for the House, and eight hundred for distribution by the Naval Observatory, and of the astro- nomical appendixes to the above observations, one thousand two hundred sep- arate copies, and of the meteorological and magnetic observations one thousand separate copies for distribution by the Naval Observatory. * * *. — (28 Stat., 613, chap. 23.) The Secretary of State shall cause to be edited, printed, published, and distributed pamphlet copies of the statutes of the present and each future session of Congress to the officers and persons hereinafter provided for; said distribution shall be made at the close of every session of Congress, as follows: * * * to the Navy Department, one hundred copies. * * * . — (28 Stat., 614, chap. 23.) After the close of each Congress the Secretary of State shall have edited, printed, and bound a sufficient number of the volumes containing the Statutes at Large enacted by that Congress to enable him to distribute copies, or as many thereof as may be needed, as follows: * * * to the Navy Depart- ment, seventy-five copies. * * *. — (28 Stat., 615, chap. 23.) Of the Registers of the Army and Navy, fifteen hundred copies of each; five hundred for the Senate and one thousand for the House. * * *. — (28 Stat., 616, chap. 23.) There shall be prepared under the direction of the Joint Committee on Printing a Congressional Directory, of which there shall be three editions dur- ing each long session and two editions during each short session of Congress. The first edition shall be distributed to Senators, Representatives, Delegates, the principal officers of Congress, and heads of departments on the first day of the session, and shall be ready for distribution to others within one week there- after. The number and distribution of such Directory shall be under the con- trol of the Joint Committee on Printing. * * *.— (28 Stat., 617, chap. 23.) The Public Printer shall furnish the Congressional Record as follows and shall furnish gratuitously no others in addition thereto ; * * * To the library of each of the * * *■ Executive Departments, and to the Naval Observatory, * * * one bound copy. * * *. — (28 Stat., 617, 618, chap. 23.) To enable the officer charged with the duty of preparing the Official Register of the United States to publish the same, the Secretary of the Senate, the Clerk of the House of Representatives, the head of each Executive Depart- ment of the Government, and the chief of each and every bureau, office, com- mission, or institution not embraced in an Executive Department, in connec- 1235 Jan. 12, 1895. Pt. 3. STATUTES AT LARGE. Printing and Binding. tion with which sahiries are paid from the Treasury of the United States, shall, on the first day of July in each year in which a new Congress is to assemble, cause to be filed -with the Secretary of tlie Interior a full and complete list of all oflicers, agents, clerks, and other employees of said Department, bureau, office, commission, or institution connected with the legislative, executive, or ju(Ucial service of the Government, or paid from the United States Treasury, incluiUng military and naval officers of the United States, cadets, and mid- shipmen. Said lists shall exhibit the salary, compensation, and emoluments allowed to each of said officers, agents, clerks, and other employees, the State or country in which he was born, the State or Territory and Congressional district and county of which he is a resident and from which he was appointed to office, and where employed. A list of the names, force, and condition of all ships and vessels belonging to the United States, and when and where built, shall also be filed with the Secretary of the Interior by the heads of the Departments having supervision of such ships and vessels, for incorporation in the Official Register. * * *. — (28 Stat., 618, chap. 23.) By act of Octo]>er 22, 1913 (38 Stat., 224), the The Director of the Census has been substi- last paragraph above quoted, as to ships tuted for the Secretary of the Interior in and vessels, was repealed. the above enactment. (See note to sec. 198, R. S.) Of the Official Register three thousand copies shall be printed and bound, which shall be distributed as follows : * * * to the Navy Department, twenty copies * * *.— (28 Stat., 619, chap. 23.) No report, document, or publication of any kind distributed by or from an Executive Department or bureau of the Government shall contain any notice that the same is sent with " the compliments " of an officer of the Government, or with any special notice that it is so sent, except that notice that it has been sent, with a request for an acknowledgment of its receipt, may be given. — (28 Stat., 620, chap. 23.) See note to section 429, Revised Statutes. [1895, Jan. 12, sec. 74. Government publications, ownership.] Government publications furnished to judicial and executive officers of the United States for their official use shall not become the property of these officers, but on the ex- piration of their official term shall be by them delivered to their successors in office and all Government publications delivered to designated depositories or other libraries shall be for public use without charge. — (28 Stat., 620, chap. 23.) [1895, Jan. 12, sec. 77. Hydrographic Office, publications, sale of.] The Secretary of the Navy is authorized to cause to be prepared at the Hydrograpliic Office attached to the Bureau of Navigation, in the Navy Department, maps, charts, and nautical books relating to and required in navigation, and to publish and furnish them to navigators at the cost of printing and paper, and to purchase the plates and copyrights of such existing maps, charts, navigators' sailing directions and instructions as he may consider necessary and when he may deem it expedient to do so, and under such regulations and instructions as he may prescribe. 1236 see act of February 14, 1879 (20 Stat., 286), as to sale of charts to mariners and others. Printing and Binding. Pt. 3. STATUTES AT LARGE. Jan. 12, 1895. All moneys which may be received from the sale of maps, charts, and nautical books shall be paid by the Secretary of the Navy into the Treasury of the United States, to be used in the further preparation and publication of maps, charts, navigators' sailing directions, and instructions for the use of seamen, to be sold at the cost of printing and paper. — (28 Stat., 621, chap. 23.) See sections 431^33, Revised Statutes, and act of May 29, 1920 (41 Stat., 665); see also section 89 of this act, set forth below; and [1895, Jan. 12, sec. 78. Foreign hydrographic surveys.] All appropriations made for the preparation or publication of foreign hydrographic surveys shall only be applicable to their object, upon the approval by the Secretary of the Navy, after a report from three competent naval officers to the effect that the original data for proposed charts are such as to justify their publication; and it is hereby made the duty of the Secretary of the Navy to order a board of three naval officers to examine and report upon the data before he shall approve of any application of moneys to the preparation or publication of such charts or hydrographic surveys. — (28 Stat., 621, chap. 23.) See sections 431^33, and 3686, Revised Statutes, and notes thereto. [1895, Jan. 12, sec. 80. Time for furnishing copy and illustrations to Public Printer.] No document or report to be illustrated or accompanied by maps shall be printed by the Public Printer until the illustrations or maps designed therefor shall be ready for publication; and no order for public printing shall be acted upon by the Public Printer after the expiration of one year, unless the entire copy and illustrations for the work shall have been furnished within that period: Provided^ This section shall not apply to orders heretofore made for the printing of a series of volumes on one subject. — (28 Stat., 621, chap. 23.) See section 196, Re\'ised Statutes, and note thereto, as to time for furnishing copy of annual reports to printer; and see section 2 of this act, set forth above. [1895, Jan. 12, sec. 86. Authority of law for work; style of binding.] No printing or binding shall be done at the Government Printing Office unless authorized by law. Binding for the Departments of the Government shall be done in plain sheep or cloth, except that record and account books may be bound in Russia leather, sheep fieshers, and skivers, when authorized by the head of a Department: Provided, The libraries of the several Departments, the Library of Congress, the libraries of the Surgeon-General's Office, the Patent Office, and the Naval Observatory may have books for the exclusive use of said libraries bound in half Turkey, or material no more expensive. — (28 Stat., 622, chap. 23.) also section 51 of this act, set forth above, as to style of binding. See section 94 of this act, and act of March 3, 1905 (33 Stat., 1249) for restrictions on printing for Executive Departments; see [1895, Jan. 12, sec. 87. Printing, etc., to be done at Government Printing Office.] All printing, binding, and blank books for the Senate or House of Representatives and for the Executive and Judicial Departments shall be done at the Government Printing Office, except in cases otherwise provided by law. — (28Stat., 622, chap. 23.) See act of March 1, 1919, section 11 (40 Stat., printing establishments, by the Secretary 1270). of War, "in time of actual hostilities." By act of May 12, 1917 (40 Stat., 74 and 75), See note to section 159, Revised Statutes, for this section was expressly amended to definition of ' ' Executive and Judicial De- authorize work for the Army "or other partments." miUtary forces," to be prociu-ed from other 1237 Jan. 12, 1895. Pt. .?. STATUTES AT LARGE. Printing and Binding. [1895, Jan. 12, sec. 89. Requisition for printing; number of copies; annual reports ; publications of Hydrographic Office.] No printing shall be clone for the Kxeoutive De])artments in any fiscal year in excess of the amount of the appro- priation, and none shall bo done without a special requisition, signed b^' the chief of the Department and filed ^vith the Public Printer. No report, publication, or document shall be printed in excess of the number of one thousand of each in any one fiscal 3^ear without authorization therefor by Congress, except that of the annual report of the head of the Depart- ment without appendices there may be printed in any one fiscal year not to exceed five thousand copies, bound in pamphlet form; and of the reports of chiefs of bureaus without appendices there may be printed in any one fiscal year not to exceed two thousand five hundred copies, bound in pamphlet form: * * * ^j^j ^he Secretary of the Navy may authorize the printing of the charts, maps, notices to mariners, tide tables, light lists, sailing directions, bulletins, and other special publications of the Hydrographic Office in such editions as the interests of the Government and of the public may require. Heads of Executive Departments shall direct whether reports made to them by bureau chiefs and chiefs of divisions shall be printed or not. — (28 Stat., 622-623, chap. 23.) See sections 196 and 429, Revised Statutes, and notes thereto, and sections 91 and 94 of this act, as to printing of annual reports. See section 93 of this act, below, as to requi- sitions for printing and binding. See joint resolution of March 21, 1900 (31 Stat., 713), as to Naval Intelligence publications; and see joint resolution of March 30, 1906 (34 Stat., 826), as to printing of documents for Executive Departments in two or more editions. See section 77 of this act, set forth above, and references thereunder, as to publications of the Hydrographic Office. [1895, Jan. 12, sec. 90. Congressional Record, daily examination of; docu- ments, bills, etc., to be ordered by Departments.] The heads of Executive Departments, and such executive officers as are not connected with the Depart- ments, respectively, shall cause daily examination of the Congressional Record for the purpose of noting documents, reports, and other publications of interest to their Departments, and shall cause an immediate order to be sent to the Public Printer for the number of copies of such publications required for official use, not to exceed, however, the number of bureaus in the Department and divisions in the office of the head thereof. The Public Printer shall send to each Executive Department and to each executive office not connected with the Departments, as soon as printed, five copies of all bills and resolutions, except the State Department, to which shall be sent ten copies of bills and resolutions. When the head of a Department desires a greater number of any class of bills or resolutions for official use, they shall be furnished by the Public Printer on requisition promptly made. — (28 Stat., 623, chap. 23.) [1895, Jan. 12, sec. 91. Annual reports, style of printing.] The annual reports of executive officers shall be printed in the same type and form as the report of the head of the Department which it accompanies, unless otherwise ordered by the Joint Committee on Printing. — (28 Stat., 623, chap. 23.) See section 51 of this act, set forth above, as to style of printing and binding. See section 89 of this act, set forth above, and sections 196 and 429, Rexased Statutes, and notes thereto, as to printing of annual reports. 1238 Printing and Binding. Pt. 3. STATUTES AT LARGE. Jan. 12, 1895. [1895, Jan. 12, sec. 92. Distribution of Government publications.] Govern- ment publications printed for or received b_y the Executive Departments, whether for official use or for distribution, shall be distributed by a competent person detailed to such duty in each Department by the head thereof. He shall keep an account in detail of all publications received and distributed by him. He shall prevent duplication, and make detailed report to the head of the Department, who shall transmit the same annually to Congress. — (28 Stat., 623, chap. 23.) See act of August 23, 1912, section 8 (37 Stat., i Not to be distributed with "the compliments" 414-415), as to distribution of documents , of any officer: See section 73, last para- for Executive Departments to be done by j graph, of this act, set forth above; and see the Pubhc Printer, with certain exceptions. ; note to section 429, Revised Statutes. [1895, Jan. 12, sec. 93. Requisitions for work; estimate of cost; appropriation charged.] When any Department, the Supreme Court, the Court of Claims, or the Library of Congress shall require printing or binding to be done it shall be on certificate that such work be necessary for the public service; whereupon the Public Printer shall furnish an estimate of the cost by the principal items for such printing or binding so called for, after which requisitions shall be made upon him therefor by the head of such Department, the Clerk of the Supreme Court, Chief Justice of the Court of Claims, or the Librarian of Congress; and the Public Printer shall place the cost thereof to the debit of such Depart- ment in its annual appropriation for printing and binding. — (28 Stat., 623, chap. 23.) See section 89 of this act, set forth above; and see joint resolution of March 30, 1906 (34 Stat., 825), as to charges against printing allotments. [1895, Jan. 12, sec. 94. Authority of law for printing; restrictions upon annual reports.] No head of any Executive Department, or of any bureau, branch, or office of the Government, shall cause to be printed, nor shall the Public Printer print, any document or matter except that which is authorized by law and necessary to the public business; and executive officers, before transmitting their annual reports, shall carefully examine the same and all accompanying documents, and exclude therefrom all matter, including engrav- ings, maps, drawings, and illustrations, except such as they shall certify in their letters transmitting such reports are necessary and relate entirely to the transaction of the public business. — (28 Stat., 623, chap. 23.) See act of March 3, 1905 (33 Stat., 1213), as to illustrations iu reports, etc. See section 86 of tliis act and act of March 3, 1905 (33 Stat., 1249), for restrictions on printing and binding. See section 89 of this act, and sections 196 and 429, Revised Statutes, and notes thereto, as to printing of annual reports. [1895, Jan. 12, sec. 95. Exchange of documents and books.] Heads of Departments are authorized to exchange surplus documents for such other documents and books as may be required by them, when the same can be done to the advantage of the public service. — (28 Stat., 623, chap. 23.) [1895, Jan. 12, sec. 96. Official envelopes procured by Postmaster-General.] The Postmaster-General shall contract for all envelopes, stamped or otherwise, designed for sale to the public, or for use by his own or other Departments, and may contract for them to be plain or with such printed matter as may be prescribed by the Department making requisition therefor: Provided, That 1239 Feb. 8, 1895. Ft. 3. STATUTES AT LARGE. ' Navigation. no envelope furnished by the Government shall contain any busmess address or advertisement. — (28 Stat., 624, chap. 23.) See act of June 26, 190fi (34 Stat., 476), which express reference thereto; and see act of amended this section, although without June 30, 1906, section 2 (34 Stat., 762), [1895, Jan. 12, sec. 98. Libraries of Departments, etc., designated deposi- tories of Government publications.] The libraries of the * * * Executive Dopartments, of the United States Military Academy, and United States Naval Academy are hereby constituted designated depositories of the Government publications, and the superintendent of documents shall supply one copy of said pubUcations, in the same form as supplied to other depositories, to each of said libraries. — (28 Stat., 624, chap. 23.) [1895, Jan. 25. Oaths, officers of the Navy, Marine Corps, etc., may admin- ister.] That judges advocate of naval general courts-martial and courts of inquiry, and all commanders in chief of naval squadrons, commandants of navy yards and stations, officers commanding vessels of the Navy, and recruit- ing officers of the Navy, and the adjutant and inspector, assistants adjutant and inspector, commanding officers, recruiting officers of the JVIarine Corps, and such other officers of the Regular Navy and JVIarine Corps, of the Naval Reserve Force, of the IMarine Corps Reserve, and of the National Naval Volunteers as may be hereafter designated by the Secretary of the Navy, be, and they are hereby, authorized to administer oaths for the purposes of the administration of naval justice and for other purposes of naval administration. — (28 Stat., 639-640, chap. 45; 31 Stat., 1086, chap. 834; 39 Stat., 1171, chap. 180.) This act was expressly amended and reenacted to read as above by act of March 4, 1917 (39 Stat., 1171); it had previo\isly been amended and reenacted by act of March 3, 1901 (31 Stat., 1086). The National Naval Volunteers, created by act of Au^ist 29, 1916 (39 Stat., 595), was abol- ished by act of July 1, 1918 (40 Stat., 708), [1895, Feb. 8, Navigation on the Great lakes and their connecting- and tribu- tary waters as far east as Montreal.] That the following rules for preventing collisions shall be followed in the navigation of all public and private vessels of the United States upon the Great Lakes and their connecting and tributary waters as far east as IVTontreal. — (28 Stat., 645, chap. 64.) which authorized transfer of the members of that organization to the Naval Reserve Force or Marine Corps Reserve. See section 183, Revised Statutes, and note thereto, for reference to other laws relating to the administration of oaths by persons in the naval ser\dce. Regulations for preventing collisions at sea: See act of August 19, 1890 (26 Stat., 320), and amendments thereto. Navigation on the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries: See sections 4233 and 4412, Revised Statutes, and notes thereto. Na\'igation on all harbors, rivers, and inland waters of the United States, except the Great Lakes and their connecting and tributary waters as far east as Montreal, and except the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries: See act of June 7, 1897 (30 Stat., 96). Navigation, Pearl Harbor, Hawaii: See act of August 22, 1912 (37 Stat., 341). Rules governing motor boats: See act of Jime 9, 1910 (36 Stat., 4G2). See, generally, notes to sections 4233 and 4412, Revised Statutes; and Navy Regulations, 1920 (chap. 55), quoting laws, and regula- tions of the Department of Commerce "for preventing collisions," etc. Steam and Sail Vessels. Rule 1. Every steam vessel wliich is under sail and not under steam, shall be considered a sail vessel; and every steam vessel which is under steam, whether under sad. or not, shall be considered a steam vessel. The word steam 1240 Navigation. Pt. S. STATUTES AT LARGE. Feb. 8, 1895. vessel shall include any vessel propelled by machinery. A vessel is under way within the meaning of these rules when she is not at anchor or made fast to the shore or aground. — (28 Stat., 645, chap. 64.) LIGHTS. Rule 2. The lights mentioned in the following rules and no others shaU be carried in all weathers from sunset to sunrise. The word visible in these rules when applied to lights shall mean visible on a dark night with a clear atmosphere. — (28 Stat., 645, chap. 64.) Rule 3. Except in the cases hereinafter expressly provided for, a steam vessel when under way shall carry: (a) On or in front of the foremast, or if a vessel without a foremast, then in the forepart of the vessel, at a height above the hull of not less than twenty feet, and if the beam of the vessel exceeds twenty feet, then at a height above the hull not less than such beam, so, however, that such height need not exceed forty feet, a bright white light so constructed as to show an unbroken light over an arc of the horizon of twent}^ points of the compass, so fixed as to throw the light ten points on each side of the vessel, namely, from right ahead to two points abaft the beam on either side, and of such character as to be visible at a dis- tance of at least five miles. (b) On the starboard side, a green light, so constructed as to throw an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side, and of such a character as to be visible at a distance of at least two miles. (c) On the port side, a red light, so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port side, and of such a character as to be visible at a distance of at least two miles. (d) The said green and red lights shall be fitted with inboard screens pro- jecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow. (e) A steamer of over one hundred and fifty feet register length shall also carry when under way an additional bright light similar in construction to that mentioned in subdivision (a), so fixed as to throw the light all around the horizon and of such character as to be visible at a distance of at least three miles. Such additional light shall be placed in line with the keel at least fifteen feet higher from the deck and more than seventy-five feet abaft the light mentioned in subdivision (a). — (28 Stat., 645-646, chap. 64.) VESSELS TOW^NG. Rule 4. A steam vessel having a tow other than a raft shall in addition to the forward bright light mentioned in subdivision (a) of rule three carry in a vertical line not less than six feet above or below that light a second bright light of the same construction and character and fixed and carried in the same manner as the forward bright light mentioned in said subdivision (a) of rule three. Such steamer shall also carry a small bright light abaft the funnel 1241 Feb. 8, 1895. Ft. S. STATUTES AT LARGE. Navigation. or after mast for the tow to steer by, but such light shall not be visible forward of the beam. — (28 Stat., 646, chap. 64.) Rule 5. A steam vessel having a raft in tow shall, instead of the forward lights mentioned in rule four, carry on or in front of the foremast, or if a vessel without a foremast then in the fore part of the vessel, at a height above the hull of not less than twenty feet, and if the beam of the vessel exceeds twenty feet then at a height above the hull not less than such beam, so however that such height need not exceed forty feet, two bright lights in a horizontal line athwart- ships and not less than eight feet apart, each so fixed as to throw the light all around the horizon and of such character as to be visible at a distance of at least five miles. Such steamer shall also carry the small bright steering light aft, of the character and fixed as required in rule four. — (28 Stat., 646, chap. 64.) Rule 6. A sailing vessel under way and any vessel being towed shall carry the side lights mentioned in rule three. A vessel in tow shall also carry a small bright light aft, but such light shall not be visible forward of the beam. — (28 Stat., 646, chap. 64.) Rule 7. The lights for tugs under thirty tons register whose principal business is harbor towing, and for boats navigating only on the River Saint Lawrence, also ferryboats, rafts, and canal boats, shall be regulated by rules which have been or may hereafter be prescribed by the Board of Supervising Inspectors of Steam Vessels. — (28 Stat., 646, chap. 64.) Rule 8. Whenever, as in the case of small vessels under way during bad weather, the green and red side lights can not be fixed, these lights shall be kept at hand lighted and ready for use, and shall, on the approach of or to other vessels, be exhibited on their respective sides in sufficient time to prevent col- lision, in such manner as to make them most visible, and so that the green light shall not be seen on the port side, nor the red light on the starboard side, nor, if practicable, more than two points abaft the beam on their respective sides. To make the use of these portable lights more certain and easy, they shall each be painted outside with the color of the light they respectively contain, and shall be provided with suitable screens. — (28 Stat., 646-647, chap. 64.) Rule 9. A vessel under one hundred and fifty feet register length, when at anchor, shall carry forward, where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a lantern constructed so as to show a clear, uniform, and unbroken light, visible all around the horizon, at a distance of at least one mile. A vessel of one hundred and fifty feet or upward in register length, when at anchor, shall carry in the forward part of the vessel, at a height of not less than twenty and not exceeding forty feet above the hull, one such light, and at or near the stern of the vessel, and at such a height that it shall be not less than fifteen feet lower than the forward light, another such light. — (28 Stat., 647, chap. 64.) Rule 10. Produce boats, canal boats, fishing boats, rafts, or other water craft navigating any bay, harbor, or river by hand power, horse power, sail, or by the current of the river, or which shall be anchored or moored in or near the channel or fairway of any bay, harbor, or river, and not otherwise provided for in these rules, shall carry one or more good white lights, which shall be placed 1242 Navigation. Pt. 3. STATUTES AT LARGE. Feb. 8, 1895. in such manner as shall be prescribed by the Board of Supervising Inspectors of Steam Vessels. — (28 Stat., 647, chap. 64.) Rule 11. Open boats shall not be obliged to carry the side lights required for other vessels, but shall, if they do not carry such lights, carry a lantern having a green slide on one side and a red slide on the other side; and on the approach of or to other vessels, such lantern shall be exhibited in sufficient time to prevent collision, and in such a manner that the green light shall not be seen on the port side, nor the red light on the starboard side. Open boats, when at anchor or stationary, shall exhibit a bright white light. They shall not, how- ever, be prevented from using a flare-up in addition if considered expedient. — (28 Stat., 647, chap. 64.) Rule 12. Sailing vessels shall at all times, on the approach of any steamer during the nighttime, show a lighted torch upon that point or quarter to which such steamer shall be approaching. — (28 Stat., 647, chap. 64.) Rule 13. The exhibition of an}^ light on board of a vessel of war or revenue cutter of the United States may be suspended whenever, in the opinion of the Secretary of the Navy, the commander in chief of a squadron, or the commander of a vessel acting singly, the special character of the service may require it. — (28 Stat., 647, chap. 64.) FOG SIGNALS. Rule 14. A steam vessel shall be provided with an efficient whistle, sounded by steam or by some substitute for steam, placed before the funnel not less than eight feet from the deck, or in such other place as the local inspec- tors of steam vessels shall determine, and of such character as to be heard in ordinary weather at a distance of at least two miles, and with an efficient bell, and it is hereby made the duty of the United States local inspectors of steam vessels when inspecting the same to require each steamer to be furnished with such whistle and bell. A sailing vessel shall be provided with an efficient fog horn and with an efficient bell. Whenever there is tliick weather by reason of fog, mist, falling snow, heavy rainstorms, or other causes, whether by day or by night, fog signals shall be used as follows : (a) A steam vessel under way, excepting only a steam vessel with raft in tow, shall sound at intervals of not more than one minute three distinct blasts of her whistle. (b) Every vessel in tow of another vessel shall, at intervals of one minute, sound four bells on a good and efficient and properly placed bell as follows: By striking the bell twice in quick succession, followed by a little longer interval, and then again striking twice in c{uick succession (in the manner in which four bells is struck in indicating time) . (c) A steamer with a raft in tow shall sound at intervals of not more than one minute a screeching or Modoc whistle for from three to five seconds. (d) A sailing vessel under way and not in tow shall sound at intervals of not more than one minute — If on the starboard tack with wind forward of abeam, one blast of her fog horn ; 54641°— 22 79 1243 Feb. 8, 1895. Pt. S. STATUTES AT LARGE. Navigation. If on the port tack with wind forward of the beam, two blasts of her fog horn ; If she has the wind abaft the beam on either side, three blasts of her fog horn. (e) Any vessel at anchor and any vessel aground in or near a channel or fairway shall at intervals of not more than two minutes ring the bell rapidly for three to five seconds. (f) Vessels of less than ten tons registered tonnage, not being steam ves- sels, shall not bo obliged to give the above-mentioned signals, but if they do not they shall make some other efficient sound signal at intervals of not more than one minute. (g) Produce boats, fishing boats, rafts, or other water craft navigating by hand power or by the current of the river, or anchored or moored in or near the channel or fairway and not in any port, and not otherwise provided for in these rules, shall sound a fog horn, or equivalent signal, at intervals of not more than one minute.— (28 Stat., 647-648, chap. 64.) Rule 15. Every vessel shall, in thick weather, by reason of fog, mist, falling snow, heavy rainstorms, or other causes, go at moderate speed. A steam vessel hearing, apparently not more than four points from right ahead, the fog signal of another vessel shall at once reduce her speed to bare steerage- way, and navigate with caution until the vessels shall have passed each other. — (28 Stat., 648, chap. 64.) Steering and Sailing Rules. sailing vessels. Rule 16. When two sailing vessels are approaching one another so as to involve risk of collision one of them shall keep out of the way of the other, as follows, namely: (a) A vessel which is running free shall keep out of the way of a vessel which is closehauled. (b) A vessel which is closehauled on the port tack shall keep out of the way of a vessel which is closehauled on the starboard tack. (c) Wben both are running free, with the wind on different sides, the vessel which has the wind on the port side shall keep out of the way of the other. (d) Wlien they are running free, with the wind on the same side, the vessel which is to windward shall keep out of the way of the vessel which is to lee- ward.— (28 Stat., 648, chap. 64.) STEAM VESSELS. Rule 17. When two steam vessels are meeting end on, or nearly end on, so as to involve risk of collision each shall alter her course to starboard, so that each shall pass on the port side of the other. — (28 Stat., 648, chap. 64.) Rule 18. — When two steam vessels are crossing so as to involve risk of collision the vessel which has the other on her own starboard side shall keep out of the way of the other. — (28 Stat., 648, chap. 64.) 1244 Navigation. Pt. 3. STATUTES AT LARGE. Feb. 8, 1895. Rule 19. When a steam vessel and a sailing vessel are proceeding in such directions as to involve risk of collision the steam vessel shall keep out of the way of the sailing vessel. — (28 Stat., 648, chap. 64.) Rule 20. — Where, hj any of the rules herein prescribed, one of two vessels shall keep out of the way, the other shall keep her course and speed. — (28 Stat., 649, chap. 64.) Rule 21. Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse. — (28 Stat., 649, chap. 64.) Rule 22. Notwithstanding anything contained in these rules every vessel overtaking any other shall keep out of the way of the overtaken vessel. — (28 Stat., 649, chap. 64.) Rule 23. In all weathers every steam vessel under w^ay in taking any course authorized or required by these rules shall indicate that course by the following signals on her whistle, to be accompanied whenever required by cor- responding alteration of her helm ; and every steam vessel receiving a signal from another shall promptly respond wdth the same signal or, as provided in Rule Twenty-six : One blast to mean, "I am directing my course to starboard." Two blasts to mean, ''I am directing my course to port." But the giving or answering signals by a vessel required to keep her course shall not vary the duties and obligations of the respective vessels. — (28 Stat., 649, chap. 64.) Rule 24. That in all narrow channels where there is a current, and in the rivers Saint Mary, Saint Clair, Detroit, Niagara, and Saint Lawrence, when two steamers are meeting, the descending steamer shall have the right of way, and shall, before the vessel shall have arrived within the distance of one-half mile of each other, give the signal necessary to indicate which side she elects to take.— (28 Stat., 649, chap. 64.) Rule 25. In all channels less than five hundred feet in width, no steam vessel shall pass another going in the same direction unless the steam vessel ahead be disabled or signify her willingness that the steam vessel astern shall pass, when the steam vessel astern may pass, subject, however, to the other rules applicable to such a situation. And when steam vessels proceeding in opposite directions are about to meet in such channels, both such vessels shall be slowed down to a moderate speed, according to the circumstances. — (28 Stat., 649, chap. 64.) Rule 26. If the pilot of a steam vessel to which a passing signal is sounded deems it unsafe to accept and assent to said signal, he shall not sound a cross signal; but in that case, and in every case where the pilot of one steamer fails to understand the course or intention of an approaching steamer, whether from signals being given or answered erroneously, or from other causes, the pilot of such steamer so receiving the first passing signal, or the pilot so in doubt, shall sound several short and rapid blasts of the whistle; and if the vessels shall have approached within half a mile of each other both shall reduce their speed to bare steerageway, and, if necessary, stop and reverse. [28 Stat., 649, chap. 64.] Rule 27. In obeying and construing these rules due regard shall be had to all dangers of navigation and collision and to any special circumstances 1245 Feb. 19, 1895. Pi. 3. STATUTES AT LARGE. Navigation. which may render a departure from the above rules necessary in order to avoid immediate danger. [28 Stat., 649, chap. 64.] Rule 28. Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of a neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case. [28 Stat., 649, chap. 64.] [1895, Feb. 8, sec. 2. Violation of rules, navigation of Great lakes, etc. ; penalty.] That a fine, not exceeding two hundred dollars, may be imposed for the violation of any of the provisions of this Act. The vessel shall be liable for the said penalty, and may be seized and proceeded against, by way of libel, in the district court of the United States for any district within which such vessel may be found. (28 Stat., 649, chap. 64.) [1895, Feb. 8, sec. 3. Eegulations to be established for enforcement of act; steam vessels passing each other; etc.] That the Secretary of the Treasury of the United States shall have authority to establish all necessary regulations, not inconsistent with the provisions of this Act, required to carry the same into effect. The Board of Supervising Inspectors of the United States shall have authority to establish such regulations to be observed by all steam vessels in passing each other, not inconsistent with the provisions of this Act, as they shall from time to time deem necessary; and all regulations adopted by the said Board of Supervising Inspectors under the authority of this Act, when approved by the Secretary of the Treasury, shall have the force of law. Two printed copies of any such regulations for passing, signed by them, shall be furnished to each steam vessel, and shall at all times be kept posted up in conspicuous places on board. — (28 Stat., 649-650, chap. 64.) act of February 14, 1903 (32 Stat., 825- The authority of the Secretary of the Treasury with respect to this and other navigation laws of the United States, was vested in the Secretary of Commerce and Labor by 830) ; and in the Secretary of Commerce by act of March 4, 1913 (37 Stat., 736). [1895, Feb. 8, sec. 4. Repeal of inconsistent laws relating to navigation.] That all laws or parts of laws, so far as applicable to the navigation of the Great Lakes and their connecting and tributary waters as far east as Montreal, inconsistent with the foregoing rules are hereby repealed. — (28 Stat., 650, chap. 64.) [1895, Feb. 19. Rules for navigation of certain inland waters.] That on and after March first, eighteen hundred and ninety-five, the provisions of sections forty-two hundred and thirty-three, forty-four hundred and twelve, and forty-four hundred and thirteen of the Revised Statutes and regulations pursuant thereto shall be followed on the harbors, rivers and inland waters of the United States. The provisions of said sections of the Revised Statutes and regulations pur- suant thereto are hereby declared special rules duly made by local authority relative to the navigation of harbors, rivers and inland waters as provided for in Article thirty, of the iVct of August nineteenth, eighteen hundred and ninety, entitled "An Act to adopt regulations for preventing collisions at sea." Sec. 2. The Secretary of the Treasury is hereby authorized, empowered and directed from time to time to designate and define by suitable bearings 1246 Pt. 3. STATUTES AT LARGE. Mar. 2, 1895. or ranges with lighthouses, light vessels, buoy's or coast objects, the lines dividing the high seas from rivers, harbors and inland waters. Sec. 3. Collectors or other chief officers of the customs shall require all sail vessels to be furnished with proper signal lights. Every such vessel that shall be navigated without complying with the Statutes of the United States, or the regulations that may be lawfully made thereunder, shall be liable to a penalty of two hundred dollars, one-half to go to the informer; for which sum the vessel so navigated shall be liable, and may be seized and proceeded against by way of libel in any district court of the United States having juris- diction of the offense. Sec. 4. The words ''inland waters" used in this Act shall not be held to include the Great Lakes and their connecting and tributary waters as far east as Montreal; and this Act shall not in any respect modify or affect the provisions of the Act entitled "An Act to regulate navigation on the Great Lakes and their connecting and tributary waters," approved February eighth, eighteen hundred and ninety-five. — (28 Stat., 672, chap. 102.) under sections 2 and 3 of this act, were transferred to the Secretary of Commerce and his subordinates by act of February 14, 1903 (32 Stat., 82.5-830), aa amended by act of March 4, 1913 (37 Stat., 736). See sections 4233 and 4412, Revised Statutes, and acts of August 19, 1890 (26 Stat., 320), February 8, 1895 (28 Stat., 645), and June 7, 1897 (30 Stat., 96), and notes thereto. Sections 1 and 3 of this act, and sections 4233, 4412, and 4413, Re-vised Statutes, were repealed, except in so far as concerned "the Great Lakes and their connecting and tributary waters as far east as Mont- real and the Red River of the North and rivers emptying into the Gulf of Mexico, and their tributaries"': See act of June 7, 1897, section 5 (30 Stat., 103). The duties of the Secretary of the Treasury and officers of the Treasiuy Department, [1895, Mar. 2, sec. 5. Official bonds, examination and renewal of; liability pending successor's appointment.] Hereafter every officer required by law to take and approve official bonds shall cause the same to be examined at least once every two years for the purpose of ascertaining the sufficiency of the sure- ties thereon; and every officer having power to fix the amount of an official bond shall examine it to ascertain the sufficiency of the amount thereof and approve or fix said amount at least once in two years and as much oftener as he may deem it necessary. — (28 Stat., 807-808, chap. 177.) Hereafter every officer whose duty it is to take and approve official bonds shall cause all such bonds to be renewed every four years after their dates, but he may require such bonds to be renewed or strengthened oftener if he deem such action necessary. In the discretion of such officer the requirement of a new bond may be waived for the period of service of a bonded officer after the expiration of a four-year term of service pending the appointment and qualifica- tion of his successor: Provided, That the nonperformance of any requirement of this section on the part of any official of the Government shall not be held to affect in any respect the liability of principal or sureties on any bond made or to be made to the United States: Provided further, That the liability of the prin- cipal and sureties on all official bonds shall continue and cover the period of service ensuing until the appointment and qualification of the successor of the prmcipal * * * .—(28 Stat., 808, chap. 177.) See sections 1383-1385, Revised Statutes, and notes thereto. [1895, Mar. 2. Retired officers, detailed to colleges.] That any retired officer of the Navy or Marine Corps may, on his own application, be detailed to 1247 Apr. 24, 1806. Pt. S. STATUTES AT LARGE. service as a teacher or professor in any school or college, but while so serving such officer shall be allowed no additional compensation. — (28 Stat., 826, chap. 186.) See section 1225, Revised Statutes, and note thereto. [1895, Mar. 2. Quarters, training force.] Naval TraininCx Station^ Coasters Harbor Island, Rhode Island (for apprentices) ; * * * Provided, That no part of the personnel of the training force shall be quartered on shore except in case of sickness. — (28 Stat., 827, chap. 186.) [1895, Mar. 2. Courts-martial for naval cadets.] That the Secretary of the Navy shall have power to convene general courts-martial for the trial of naval cadets, subject to the same limitations and conditions now existing as to other general courts-martial, and to approve the proceedings and execute the sentences of such courts, except the sentences of suspension and dismissal, which, after having been approved by the Superintendent, shall not be carried into effect until confirmed by the President. — (28 Stat., 838, chap. 186.) See note to section 1519, Revised Statutes. [1895, Mar. 2. Disposal of useless papers.] That the Act entitled "An Act to authorize and provide for the disposition of useless papers in the Executive Department," approved February sixteenth, eighteen hundred and eighty-nine, be, and the same is hereby, amended so as to include in its provisions any ac- cumulation of files of papers of a like character therein described now or here- after in the various public buildings under the control of the several Executive Departments of the Government. — (28 Stat., 933, chap. 189.) See act of February 16, 1889 (25 Stat., 672), and references thereunder. [1895, Mar. 2. Estimates, printing and binding.] And it shall be the duty of the Public Printer to submit to Congress at the beginning of its next regular session, estimates in detail under the head of printing and binding for the service of the fiscal year eighteen hundred and ninety-seven and annually thereafter, covering appropriations requisite for all work to be done and services to be ren- dered under his direction by the provisions of the said Act and not previously required of him * * * .—(28 Stat., 961, chap. 189.) The words "said Act" in the provision refer to the act of Januaiy 12, 1895 (28 Stat., 601-624, chap. 23); see section 27 of that act (28 Stat., 604), and references there- under, as to estimates for printing and binding. [1896, Mar. 28. Commissions of officers.] That hereafter the commissions of all officers under the direction and control of the Secretary of the Treasury, the Secretary of War, the Secretary of the Navy, and the Secretary of Agii- culture shall be made out and recorded in the respective Departments under which they are to serve, and the Department seal affixed thereto, any laws to the contrary notwithstanding: Provided, That the said seal shall not be affix:ed to any such commission before the same shall have been signed by the President of the United States.— (29 Stat., 75, chap. 73.) See note to Constitution, Article IT, section 3, Statutes, under "The Secretary of the under "II. Duty to commission officers"; Navy represents the President." and see note to section 417, Revised [1896, Apr. 24, sec. 2. Apprentices additional to number of enlisted persons.] That all apprentices of the Navy, whether at a training station or on board 1248 Pt. S. STATUTES AT LARGE. Jiine 10, 1896. an apprentice training ship, shall be additional to the number of enlisted persons allowed by law for the Navy. — (29 Stat., 97, chap. 120.) See note to section 1417, Re\'ised Statutes. [1896, May 22. Condemned ordnance, etc., loan or gift of.] That the Secretary of War and the Secretary of the Navy are each hereby authorized, in their discretion, to loan or give to soldiers' monument associations, posts of the Grand Army of the Republic, and municipal corporations, condemned ordnance, guns, and cannon balls which may not be needed in the service of either of said Departments. Such loan or gift shall be made subject to rules and regulations covering the same in each Department, and the Government shall be at no expense in connection with any such loan or gift. — (29 Stat., 133-134, chap. 231.) See section 418, Revised Statutes, and note thereto. [1896, May 28. Appropriation acts, footing of paragraphs to determine amount appropriated.] That hereafter the total amount appropriated in the various paragraphs of an appropriation Act shall be determined by the correct footing up of the specific sums or rates appropriated in each paragraph con- tained therein unless otherwise expressly provided. — (29 Stat., 148, chap. 252.) [1896, May 28, sec 2. Liability to draft, officers in merchant service; wages for naval service.] No master, mate, pilot, or engineer of steam vessels licensed under title fifty-two of the Revised Statutes, pages forty-three hundred and ninety-nine to forty-five hundred, shall be liable to draft in time of war, except for the performance of duties such as required by his license; and while performing such duties in the service of the United States every such master, mate, pilot, or engineer shall be entitled to the highest rate of wages paid in the merchant marine of the United States for similar services; and if killed or wounded while performing such duties under the United States, they, or their heirs, or their legal representatives, shall be entitled to all the privileges ac- corded to soldiers and sailors serving in the Army or Navy, under the pension laws of the United States.— (29 Stat., 189, chap. 255; 38 Stat., 765-766, chap. 334.) This pro\'ision was expressly amended and reenacted to read as above by act of October 22, 1914 (38 Stat., 765-766). [1896, June 10. Allotments of pay.] That the Secretary of the Navy be, and he is hereby, authorized to permit officers of the Navy and the Marine Corps to make allotments from their pay, under such regulations as he may prescribe, for the support of their families or relatives, for their own savings, or for other proper purposes, during such time as they may be absent at sea, on distant dut}^, or under other circumstances warranting such action. — (29 Stat., 361, chap. 399.) See sections 1430, 1551, 1576, and 3477, Revised Statutes, and notes thereto. [1896, June 10. Officers reappointed, credit for previous service.] That all officers who have been or may be appointed to any corps of the Navy or to the Marine Corps after service in a different corps of the Navy or of the Marine Corps shall have all the benefits of their previous service in the same manner as if said appointments were a reentry into the Navy or into the Marine Corps. — (29 Stat., 361, chapter, 399.) 1249 June 10, 1896. Pt. 3. STATUTES AT LARGE. This enactment superseded a similar provision contained in the act of July 2(i, 1894 (28 Stat., 12;V), which did not make specific reference to the Marine Corps. See sections 1443, 1556, and 1600, Revised Statutes; and see act of March 3, 1883 (22 Stat., 473). [1896, June 10. Officers employed by contractors.] That hereafter no pay- ment shall be made from appropriations made by Congress to any officer in the Navy or Marine Corps on the active or retired list while such officer is employed, after June thirtieth, eighteen hundred and ninety-seven, by any person or company furnishing naval supplies or war material to the Govern- ment; and such employment is hereby made unlawful after said date. — (29 Stat., 361, chap. 399.) The question whether this law prevents re- tired officers from serving as "directors" of a company furnishing naval supplies to the Gov- ernment depends upon the construction of the words "employed" and "employment" as used therein. It would seem that retired officers can not legally serve in this capacity. (Opinion of Judge Advocate General, June 6, 1908; file 9736-9.) Without regard to whether employment by a retired officer as superintendent or foreman with contractors performing work on contracts at a naval training station is specifically pro- hibited by law or regulation, the acceptance of such employment by a retired oflBcer would be regarded by the Department as in the highest degree objectionable and improper. (De- partment's letter. May 26, 1910; file 9736-17.) See sections 1440, 1763-1765, and 1860, Re- \'ised Statutes, and notes thereto, for other restrictions upon employment of naval officers; see also sections 41 and 112, Crim- inal Code, act of March 4, 1909 (35 Stat., 1097, 1108). Nature of employment forbidden. — "The law makes no distinction as to the char- acter of ser\ace rendered by a retired officer of the Navy who might be in the employ of a contractor, and makes no provision for ex- ceptions on any ground." Therefore, the acceptance by a retired officer of employment as assistant superintendent of motive power with a company furnishing naval supplies or war material for the Government would be unlawful, even though such officer would have nothing to do with the manufacture or sale of products. (Department's letter, January 19, 1910; file 9736-14.) [1896, June 10. Tobacco, advertisement for.] And the Secretary of the Navy is hereby authorized and directed to cause advertisement to be made for tobacco for the use of the Navy, as the needs of the service may require, in the manner prescribed by law for other supplies. Bidders shall submit with their proposals a sample of the tobacco which they propose to furnish, and the contract shall, in the discretion of the Department, be awarded to the bidder whose sample is found by a board of officers to be the best adapted for use in the Navy.— (29 Stat., 370, chap. 399.) See sections 3718, 3721, Revised Statutes, and notes thereto. [1896, June 10. Model tank for experiments.] For making plans, examining and preparing the ground, and other preliminary work toward the construction of . a model tank, with all buildings and appHances, to be built upon the grounds of the navy yard at Washington, District of Columbia, under the Bureau of Con- struction and Repair of the Navy Department, which shall conduct therein the work of investigating and determining the most suitable and desirable shapes and forms to be adopted for United States naval vessels, seven thousand five hundred dollars: Provided, That upon the authorization of the Secretary of the Navy experiments may be made at this establishment for private ship- builders, who shall defray the cost of material and of labor of per diem employees for such experiments: And provided further, That the results of such private experiments shall be regarded as confidential and shall not be divulged without the consent of the shipbuilder for whom they may be made. — (29 Stat., 372, chap. 399.) 1250 Navigation. Pt. 3. STATUTES AT LARGE. June 7, 1897. [1896, June 10. Mileage, Marine Corps.] And hereafter ofRcers of the Marine Corps travehng under orders without troops shall be allowed the same mileage as is now allowed officers of the Navy traveling without troops. — (29 Stat., 376, chap. 399.) See notes to sections 1566 and 1612, Revised Statutes. [1897, Feb. 13. Passed assistant surgeons to be commissioned.] That passed assistant surgeons now borne upon the Navy Register shall be commissioned as such by the President, such commissions to bear the dates upon which said passed assistant surgeons, respectively, received their appointments as such; and hereafter assistant surgeons shall be regularly promoted and commissioned as passed assistant surgeons, and passed assistant surgeons as surgeons, sub- ject to such examinations as may be prescribed by the Secretary of the Navy: Provided, however, That no examination of passed assistant surgeons shall be ordered until the expiration of six months from the passage of this Act, during which time promotions shall be made as now provided by law. — (29 Stat., 526, chap. 221.) See note to section 1368, Re\dsed Statutes under "Passed assistant surgeons.'- [1897, Mar. 3, sec. 7. Applications for patents, heads of Departments to be represented.] That in every case where the head of any Department of the Government shall request the Commissioner of Patents to expedite the consid- eration of an application for a patent it shall be the duty of such head of a Department to be represented before the Commissioner in order to prevent the improper issue of a patent. — (29 Stat., 694, chap. 391.) See note to section 4894, Revised Statutes. [1897, June 4. Branch hydrographic offices.] That the Secretary of the Navy is hereby authorized to establish branch hydrographic offices at Duluth, in the State of Minnesota, Sault Sainte Marie, in the State of Michigan, and Buffalo, in the State of New York, the same to be conducted under the pro- visions of an Act entitled "An Act to establish a hydrographic office in the Navy Department," approved June twenty-first, eighteen hundred and sixty- six.— (30 Stat., 39, chap. 2.) The act of June 21, 1866, referred to in this pro- hydrographic offices at Boston, New York, \'ision, is embodied in section 431, R.evised Philadelphia, Baltimore, Norfolk, Savan- Statutes. nah, New Orleans, San Francisco, (Portland, See sections 431— i33, ReAosed Statutes, and Oregon), Portland (Maine), Chicago, Cleve- notes thereto. land, Buffalo, Duluth, Sault Sainte Marie, By act of March 3, 1921 (41 Stat., 1284), appro- Seattle, Panama, and Galveston, priation was made for expenses of branch [1897, June 7. Regulations for navigation of all harbors, rivers, and inland waters of the United States, except the Great Lakes, etc., and except the Eed River of the North, etc.] Whereas the provisions of chapter eight hundred and two of the laws of eighteen hundred and ninety, and the amendments thereto, adopting regulations for preventing collisions at sea, apply to all waters of the United States connected with the high seas navigable by seagoing vessels, except so far as the navigation of any harbor, river, or inland waters is regulated by special rules duly made by local authority; and 1251 June 7, 1897. Pt. S. STATUTES AT LARGE. Navigation. Whereas it is desirable that the regulations relating to the navigation of all harbors, rivers, and inland waters of the United States, except the Great Lakes and their connecting and tributary waters as far east as Montreal and the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries, shall be stated in one Act: Therefore, Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled, That the following regulations for preventing collision shall be followed by all vessels navigating all harbors, rivers, and inland waters of the United States, except the Great Lakes and their connecting and tributary waters as far east as Montreal and the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries, and are hereby declared special rules duly made by local authority: — (30 Stat., 96, chap. 4.) Regulations for preventing collisions at sea: See act of August 19, 1890 (26 Stat., 320), and amendments thereto. Navigation on the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries: See sections 4233 and 4412, Revised Statutes, and notes thereto. Navigation on the Great Lakes and their con- necting and tributary waters as far east as Montreal: See act of February 8, 1895 (28 Stat., 645). Navigation, Pearl Harbor, Hawaii: See act of August 22, 1912 (37 Stat., 341). Rules governing motor boats: See act of June 9, 1910 (36 Stat., 462). See, generally, notes to sections 4233 and 4412, Revised Statutes; and Navy Regulations 1920 (chap. 55), quoting laws, and regula- tions of the Department of Commerce, "for preventing collisions," etc. Preliminary. In the following rules every steam-vessel which is under sail and not under steam is to be considered a sailing-vessel, and every vessel under steam whether under sail or not, is to be considered a steam vessel. The word ''steam- vessel" shall include any vessel propelled by machinery. A vessel is ''under way," within the meaning of these rules, when she is not at anchor, or made fast to the shore, or aground. Rules Concerning Lights, and so forth. The word "visible" in these rules, when applied to lights, shall mean visible on a dark night with a clear atmosphere. Article 1. The rules concerning lights shall be complied with in all weathers from sunset to sunrise, and during such time no other lights which may be mistaken for the prescribed lights shall be exhibited. — (30 Stat., 96, chap. 4.) Art. 2. A steam- vessel when under way shall carry — (a) On or in front of the foremast, or, if a vessel without a foremast, then in the fore part of the vessel, a bright white light so constructed as to show an unbroken light over an arc of the horizon of twenty points of the compass, so fixed as to throw the light ten points on each side of the vessel, namely, from right ahead to two points abaft the beam on either side, and of such a character as to be visible at a distance of at least five miles. (b) On the starboard side a green light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side, and of such a character as to be visible at a distance of at least two miles. 1252 Navigation. Pt. 3. STATUTES AT LARGE. June 7, 1897. (c) On the port side a red light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port side, and of such a character as to be visible at a distance of at least two miles. (d) The said green and red side-lights shall be fitted with inboard screens projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow. (e) A sea-going steam-vessel when under way may carry an additional white light similar in construction to the light mentioned in subdivision (a). These two lights shall be so placed in line \vith the keel that one shall be at least fifteen feet higher than the other, and in such a position with reference to each other that the lower light shall be forward of the upper one. The vertical distance between these lights shall be less than the horizontal distance, (f) All steam- vessels (except sea-going vessels and ferry-boats), shall carry in addition to green and red lights required by article two (b), (c), and screens as required by article two (d), a central range of two white lights; the after-light being carried at an elevation at least fifteen feet above the light at the head of the vessel. The head-light shall be so constructed as to show an unbroken light through twenty points of the compass, namely, from right ahead to two points abaft the beam on either side of the vessel, and the after-light so as to show all around the horizon. — (30 Stat., 96-97, chap. 4.) Akt. 3. A steam-vessel when towing another vessel shall, in addition to her side-lights, carry two bright white lights in a vertical fine one over the other, not less than three feet apart, and when towing more than one vessel shall carry an additional bright white light three feet above or below such fights, if the length of the tow measuring from the stern of the towing vessel to the stern of the last vessel towed exceeds six hundred feet. Each of these lights shall be of the same construction and character, and shall be carried in the same position as the white light mentioned in article two (a) or the after range light mentioned in article two (f). Such steam-vessel may carry a small white light abaft the funnel or after- mast for the vessel towed to steer by, but such light shall not be visible for- ward of the beam. — (30 Stat., 97, chap. 4.) This act did not contain any article numbered four. Art. 5. A sailing-vessel under way or being towed shall carry the same fights as are prescribed by article two for a steam-vessel under way, with the exception of the white lights mentioned therein, which they shall never carry. — (30 Stat., 97, chap. 4.) Art. 6. Whenever, as in the case of vessels of less than ten gross tons under way during bad weather, the green and red side-lights can not be fixed, these fights shall be kept at hand, lighted and ready for use; and shall, on the ap- proach of or to other vessels, be exhibited on their respective sides in sufficient time to prevent collision, in such manner as to make them most visible, and so that the green light shall not be seen on the port side nor the red light on the starboard side, nor, if practicable, more than two points abaft the beam on their respective sides. To make the use of these portable lights more cer- tain and easy the lanterns containing them shall each be painted outside with 1253 June 7, 1897. Pt. S. STATUTES AT LARGE. Navigation. the color of tlic light they respectively contain, and shall be provided with proper screens. — (30 Stat., 97, chap. 4.) Art. 7. Rowing boats, whether under oars or sail, shall have ready at hand a lantern showing a white light which shall be temporarily exhibited in sudicient time to prevent collision. — (30 Stat., 98, chap. 4.) Art. 8. Pilot-vessels when engaged on their station on pilotage duty shall not show the lights required for other vessels, but shall carry a white light at the masthead, visible all around the horizon, and shall also exhibit a flare-up light or flare-up lights at short intervals, which shall never exceed fifteen minutes. On the near approach of or to other vessels they shall have their side- lights lighted, ready for use, and shall flash or show them at short intervals, to indicate the direction in which they are heading, but the green light shall not be shown on the port side nor the red light on the starboard side. A pilot-vessel of such a class as to be obliged to go alongside of a vessel to put a pilot on board may show the white light instead of carrying it at the masthead, and may, instead of the colored lights above mentioned, have at hand, ready for use, a lantern with a green glass on the one side and a red glass on the other, to be used as prescribed above. Pilot- vessels, when not engaged on their station on pilotage duty, shall carry lights similar to those of other vessels of their tonnage. — (30 Stat., 98, chap. 4.) By act of February 19, 1900 (31 Stat., 30-31), which was expressly "supplementary" to this article, it was provided: "That a steam pilot vessel, when engaged on her station on pilotage duty and in waters of the United States, and not at anchor, shall, in addition to the lights required for all pilot boats, carry at a distance of eight feet below her white masthead light a red light, Aisible all around the horizon and of such a character as to be visible on a dark night with a clear atmosphere at a distance of at least two miles, and also the colored side lights required to be carried by vessels when under way. "When engaged on her station on pilotage duty and in waters of the United States, and at anchor, she shall carry in addition to the Art. 9. (a) Fishing-vessels of less than ten gross tons, when under way and when not having their nets, trawls, dredges, or lines in the water, shall not be obliged to carry the colored side-lights; but every such vessel shall, in lieu thereof, have ready at hand a lantern with a green glass on one side and a red glass on the other side, and on approaching to or being approached by another vessel such lantern shall be exhibited in sufficient time to prevent collision, so that the green light shall not be seen on the port side nor the red light on the starboard side. (b) All fishing-vessels and fishing-boats of ten gross tons or upward, when under way and when not having their nets, trawls, dredges, or lines in the water, shall carry and show the same lights as other vessels under way. (c) All vessels, when trawling, dredging, or fishing with any kind of drag- nets or lines, shall exhibit, from some part of the vessel where they can be best 1254 lights required for all pilot boats the red light above mentioned, but not the colored side lights. "When not engaged on her station on pilotage duty, she shall carry the same lights as other steam vessels. "Sec. 2. That this Act shall be construed as supplementary to article eight of the Act approved June seventh, eighteen hundred and ninety-seven, entitled 'An Act to adopt regulations for preventing collisions upon certain harbors, rivers, and inland waters of the United States,' and to article eight of an Act approved August nineteenth, eighteen hundred and ninety, entitled 'An Act to adopt regulations for preventing collisions at sea.' " Navigation. Pt. 3. STATUTES AT LARGE. June 7, 1897. seen, two lights. One of these lights shall be red and the other shall be white. The red light shall be above the white light, and shall be at a vertical distance from it of not less than six feet and not more than twelve feet; and the horizontal distance between them, if any, shall not be more than ten feet. These two lights shall be of such a character and contained in lanterns of such construction as to be visible all round the horizon, the white light a distance of not less than three miles and the red light of not less than two miles. (d) Rafts, or other water craft not herein provided for, navigating by hand power, horse power, or by the current of the river, shall carry one or more good w^iite lights, which shall be placed in such manner as shall be pre- scribed by the Board of Supervising Inspectors of Steam Vessels. — (30 Stat., 98, chap. 4.) Art. 10. a vessel which is being overtaken by another, except a steam- vessel with an after range-light showing all around the horizon, shall show from her stern to such last-mentioned vessel a white light or a flare-up light. — (30 Stat., 98, chap. 4.) Art. 11. a vessel under one hundred and fifty feet in length when at anchor shall carry forward, where it can best be seen, but at a height not exceed- ing twenty feet above the hull, a white light, in a lantern so constructed as to show a clear, uniform, and unbroken light visible all around the horizon at a distance of at least one mile. A vessel of one hundred and fifty feet or upwards in length when at anchor shall carry in the forward part of the vessel, at a height of not less than twenty and not exceeding forty feet above the hull, one such light, and at or near the stern of the vessel, and at such a height that it shall be not less than fifteen feet lower than the forward light, another such light. The length of a vessel shall be deemed to be the length appearing in her certificate of registry. — (30 Stat., 98-99, chap. 4.) Art. 12. Every vessel may, if necessary, in order to attract attention, in addition to the lights which she is by these rules required to carry, show a flare-up light or use any detonating signal that can not be mistaken for a dis- tress signal. — (30 Stat., 99, chap. 4.) Art. 13. Nothing in these rules shall interfere with the operation of any special rules made by the Government of any nation with respect to additional station and signal lights for two or more ships of war or for vessels sailing under convoy, or with the exhibition of recognition signals adopted by shipowners, which have been authorized by their respective Governments, and duly regis- tered and published.— (30 Stat., 99, chap. 4.) Art. 14. A steam-vessel proceeding under sail only, but having her funnel up, may carry in daytime, forward, where it can best be seen, one black ball or shape two feet in diameter. — (30 Stat., 99, chap. 4.) Sound Signals for Fog, and so forth. Art. 15. All signals prescribed by this article for vessels under way shall be given: 1. By ''steam- vessels" on the whistle or siren. 2. By ''sailing-vessels" and "vessels towed" on the fog horn. 1255 June 7, 1897. Pt. S. STATUTES AT LARGE. Navigation. The words " prolonged blast" used in this article shall mean a blast of from four to six seconds duration. A steam-vessel shall be provided with an efficient whistle or siren, sounded by steam or by some substitute for steam, so placed that the sound may not be intercepted by any obstruction, and with an efficient fog horn; also with an efficient bell. A sailing-vessel of twenty tons gross tonnage or upward shall be provided with a similar fog horn and bell. In fog, mist, falling snow, or heavy rainstorms, whether by day or night, the signals described in this article shall be used as follows, namely: (a) A steam-vessel under way shall sound, at intervals of not more than one minute, a prolonged blast. (c) A sailing-vessel imder way shall sound, at intervals of not more than one minute, when on the starboard tack, one blast; when on the port tack, two blasts in succession, and when with the wind abaft the beam, three blasts in succession. (d) A vessel when at anchor shall, at intervals, of not more than one minute, ring the bell rapidly for about five seconds. (e) A steam- vessel when towing, shall, instead of the signals prescribed in subdivision (a) of this article, at intervals of not more than one minute, sound three blasts in succession, namely, one prolonged blast followed by two short blasts. A vessel towed may give this signal and she shall not give any other. (f) All rafts or other water craft, not herein provided for, navigating by hand power, horse power, or by the current of the river, shall sound a blast of the fog-horn, or equivalent signal, at intervals of not more than one minute. — (30 Stat., 99, chap. 4.) Speed of Ships to be Moderate in Fog, and so forth. Art. 16. Every vessel shall, in a fog, mist, falling snow, or heavy rain- storms, go at a moderate speed, having careful regard to the existing circum- stances and conditions. A steam- vessel hearing, apparently forward of her beam, the fog-signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over. — (30 Stat., 99, chap. 4.) Steering and Sailing Rules. preliminary risk of collision. Risk of collision can, when circumstances permit, be ascertained by carefully watching the compass bearing of an approaching vessel. If the bearing does not appreciably change, such risk should be deemed to exist. Art. 17. When two sailing-vessels are approaching one another, so as to involve risk of collision, one of them shall keep out of the way of the other as follows, namely: (a) A vessel which is running free shall keep out of the way of a vessel which is close-hauled. (b) A vessel which is closed-hauled on the port tack shall keep out of the way of a vessel which is closed-hauled on the starboard tack. 1256 Navigation. Pt. S. STATUTES AT LARGE. June 7, 1897. (c) When both are running free, with the wind on different sides, the vessel which has the wind on the port side shall keep out of the way of the other. (d) When both are running free, with the wind on the same side, the vessel which is to the windward shall keep out of the way of the vessel which is to the leeward. (e) A vessel which has the wind aft shall keep out of the way of the other vessel. — (30 Stat., 100, chap. 4.) Art. 18. Rule I. When steam- vessels are approaching each other head and head, that is, end on, or nearly so, it shall be the duty of each to pass on the port side of the other; and either vessel shall give, as a signal of her intention, one short and distinct blast of her whistle, which the other vessel shall answer promptly by a similar blast of her whistle, and thereupon such vessels shall pass on the port side of each other. But if the courses of such vessels are so far on the starboard of each other as not to be considered as meeting head and head, either vessel shall immediately give two short and distinct blasts of her whistle, which the other vessel shall answer promptly by two similar blasts of her whistle, and they shall pass on the starboard side of each other. The foregoing only applies to cases where vessels are meeting end on or nearly end on, in such a manner as to involve risk of collision; in other words, to cases in which, by day, each vessel sees the masts of the other in a line, or nearly in a line, with her own, and by night to cases in which each vessel is in such a position as to see both the sidelights of the other. It does not apply by day to cases in which a vessel sees another ahead crossing her own course, or by night to cases where the red light of one vessel is opposed to the red light of the other, or where the green light of one vessel is opposed to the green light of the other, or where a red light without a green light or a green light without a red light, is seen ahead, or where both green and red lights are seen anywhere but ahead. — (30 Stat., 100, chap. 4.) This article did not contain any Rule II, IV, VI, or VII. Rule III. If, when steam-vessels are approaching each other, either vessel fails to understand the course or intention of the other, from any cause, the vessel so in doubt shall immediately signify the same by giving several short and rapid blasts, not less than four, of the steam-whistle. — (30 Stat., 100, chap. 4.) Rule V. Whenever a steam-vessel is nearing a short bend or curve in the channel, where, from the height of the banks or other cause, a steam-vessel approaching from the opposite direction can not be seen for a distance of half a mile, such steam-vessel, when she shall have arrived within half a mile of such curve or bend, shall give a signal by one long blast of the steam whistle, which signal shall be answered by a similar blast, given by any approaching steam-vessel that may be within hearing. Should such signal be so answered by a steam-vessel upon the farther side of such bend, then the usual signals for meeting and passing shall immediately be given and answered; but, if the first alarm signal of such vessel be not answered, she is to consider the channel clear and govern herself accordingly. 1257 June 7. 1897. Pt. S. STATUTES AT LARGE. Navigation. When steam-vcssols are moved from their docks or berths, and other boats are liable to pass from any direction toward them, they shall give the same signal as in the case of vessels meeting at a bend, but immediately after clearino- the berths so as to be fully in sight they shall be governed by the steering and sailing rules.— (30 Stat., 100-101, chap. 4.) Kri.E MIL ^\1ien steam-vessels are running in the same direction, and the vessel which is astern shall desire to pass on the right or starboard hand of the vessel ahead, she shall give one short blast of the steam-whistle, as a signal of such desire, and if the vessel ahead answers with one blast, she shall put her helm to port; or if she shall desire to pass on the left or port side of the vessel ahead, she shall give two short blasts of the steam-whistle as a signal of such desire, and if the vessel ahead answers with two blasts, shall put her helm to star- board; or if the vessel ahead does not think it safe for the vessel astern to at- tempt to pass at that point, she shall immediately signify the same by giving several short and rapid blasts of the steam-whistle, not less than four, and under no circumstances shall the vessel astern attempt to pass the vessel ahead until such time as they have reached a point where it can be safely done, when said vessel ahead shall signify her willingness by blowing the proper signals. The vessel ahead shall in no case attempt to cross the bow or crowd upon the course of the passing vessel. — (30 Stat., 101, chap. 4.) Rule IX. The whistle signals provided in the rules under this article, for steam-vessels meeting, passing, or overtaking, are never to be used except when steamers are in sight of each other, and the course and position of each can be determined in the daytime by a sight of the vessel itself, or by night by seeing its signal lights. In fog, mist, falling snow or heavy rainstorms, when vessels can not so see each other, fog-signals only must be given. — (30 Stat., 101, chap. 4.) Art. 19. When two steam-vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other. — (30 Stat., 101, chap. 4.) Art. 20. When a steam-vessel and a sailing-vessel are proceeding in such directions as to involve risk of collision, the steam-vessel shall keep out of the way of the sailing-vessel. — (30 Stat., 101, chap. 4.) Art. 21. Where, by any of these rules, one of the two vessels is to keep out of the way, the other shall keep her course and speed. — (30 Stat., 101, chap. 4.) Art. 22. Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid cross- ing ahead of the other. — (30 Stat., 101, chap. 4.) Art. 23. Every steam- vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse. — (30 Stat., 101, chap. 4.) Art. 24. Notwithstanding anything contained in these rules every vessel, overtaking any other, shall keep out of the way of the overtaken vessel. Every vessel coming up with another vessel from any direction more than two points abaft her beam, that is, in such a position, with reference to the vessel which she is overtaking that at night she would be unable to see either of that vessel's side-lights, shall be deemed to be an overtaking vessel; and no subse- sequent alteration of the bearing between the two vessels shall make the over- 1258 Navigation. Pt. 3. STATUTES AT LARGE. June 7, 1897. taking vessel a crossing vessel within the meaning of these rules, or relieve her of the duty of keeping clear of the overtaken vessel until she is finally past and clear. As by day the overtaking vessel can not always know with certainty whether she is forward of or abaft this direction from the other vessel she should, if in doubt, assume that she is an overtaking vessel and keep out of the way. — (30 Stat., 101, chap. 4.) Art. 25. In narrow channels every steam-vessel shall, when it is safe and practicable, keep to that side of the fair-way or mid-channel which lies on the starboard side of such vessel. — (30 Stat., 101, chap. 4.) Art. 26. — Sailing-vessels under way shall keep out of the way of sailing- vessels or boats fishing with nets, or lines, or trawls, This rule shall not give to any vessel or boat engaged in fishing the right of obstructing a fair-way used by vessels other than fisliing-vessels or boats. — (30 Stat., 102, chap. 4.) Art. 27. In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger. — (30 Stat., 102, chap. 4.) Sound Signals for Vessels in Sight of one Another. Art. 28. When vessels are in sight of one another a steam-vessel under way whose engines are going at full speed astern shall indicate that fact by three short blasts on the whistle. — (30 Stat., 102, chap. 4.) No Vessel Under any Circumstances to Neglect Proper Precautions. Art. 29. Nothing in these rules shall exonerate any vessel, or the o^^^le^ or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution wliich may be required by the ordinary practice of seamen, or by the special chcumstances of the case. — (30 Stat., 102, chap. 4.) Art. 30. The exliibition of any light on board of a vessel of war of the United States or a revenue cutter may be suspended whenever, in the opinion of the Secretary of the Navy, the commander in chief of a squadron, or the commander of a vessel acting singly, the special character of the service may require it.— (30 Stat., 102, chap. 4.) Distress Signals. Art. 31. When a vessel is in distress and requires assistance from other vessels or from the shore the following shall be the signals to be used or displayed by her, either together or separately, namely: IN THE daytime. A continuous sounding wdth any fog-signal apparatus, or firing a gun. AT NIGHT. First. Flames on the vessel as from a burning tar barrel, oil barrel, and so forth. 54641°— 22 80 1259 See note above, under section 1 of this act (30 Stat., 9G). June 7, 1897. Pt. S. STATUTES AT LARGE. Navigation. Second. A contiiiiioiis sounding with any fog-signal apparatus, or firing a gun.— (30 Stat., 102, chap. 4.) [1897, June 7, sec. 2. Rules to be established as to steam vessels passing- each other, lights and day signals, etc.] That the supervising inspectors of steam vessels and the Supervising Inspector General shall establish such rules to be observed by steam vessels in passing each other and as to the lights to be carried by ferryboats and by barges and canal boats when in tow of steam vessels, and as to the lights and day signals to be carried by vessels, dredges of all types, and vessels working on wrecks by other obstruction to navigation or moored for submarine operations, or made fast to a sunken object which may drift with the tide or be towed, not inconsistent with the provisions of this Act, as they from time to time may deem necessary for safety, which rules when approved by the Secretary of Commerce are hereby declared special rules duly made by local authority, as provided for in article thirty of chapter eight hundred and two of the laws of eighteen hundred and ninety. Two printed copies of such rules shall be furnished to such ferryboats, barges, dredges, canal boats, vessels working on wrecks and steam vessels, which rules shall be kept posted up in conspicuous places in such vessels, barges, dredges, and boats.— (30 Stat., 102, chap. 4; 38 Stat., 381, chap. 98.) This section was expressly amended and reen- acted to read as above, by act of May 25, 1914 (38 Stat., 381). [1897, June 7, sec. 3. Penalty for pilots, etc.] That every pilot, engineer, miate, or master of any steam-vessel, and every master or mate of any barge or canal-boat, who neglects or refuses to observe the provisions of this Act, or the regulations estabhshed in pursuance of the preceding section, shall be liable to a penalty of fifty dollars, and for all damages sustained by any passenger in his person or baggage by such neglect or refusal: Provided, That nothing herein shall relieve any vessel, owner or corporation from any liability incurred by reason of such neglect or refusal. — (30 Stat., 102-103, chap. 4.) [1897, June 7, sec. 4. Penalty for vessels.] That every vessel that shall be navigated without complying with the provisions of this Act shall be liable to a penalty of two hmidred dollars, one-half to go to the informer, for which sum the vessel so navigated shall be liable and may be seized and proceeded against by action in any district court of the United States having jurisdiction of the offense.— (30 Stat., 103, chap. 4.) [1897, June 7, sec. 5. Repeal of prior laws and regulations; exceptions.] That sections forty-two hundred and thirty-three and forty-four hundred and twelve (with the regulations made in pursuance thereof, except the rules and regulations for the government of pilots of steamers navigating the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries, and except the rules for the Great Lakes and their connecting and tributary waters as far east as Montreal), and forty-four hundred and tliirteen of the Revised Statutes of the United States, and chapter two hundred and two of the laws of eighteen hundred and ninety-three, and sections one and three of chapter one hundred and two of the laws of eighteen hundred and ninety-five, and sections five, twelve, and thirteen of the Act approved March third, eighteen hundred and ninety-seven, entitled "An Act to amend the law^s relating to navi- 1260 Pt. 3. STATUTES AT LARGE. May 4, 1898. gation," and all amendments thereto, are hereby repealed so far as the harbors, rivers, and inland waters aforesaid (except the Great Lakes and their connect- ing and tributary waters as far east as Montreal and the Red River of the North and rivers emptying into the Gulf of Mexico, and tlieir tributaries) are con- cerned. — (30 Stat., 103, chap. 4.) [1898, Mar. 15, sec. 3. law books, etc., purchase from contingent funds.] That hereafter law books, books of reference, and periodicals for use of any Executive Department, or other Government establishment not under an Executive Department, at the seat of Government, shall not be purchased or paid for from any appropriation made for contingent expenses or for any specific or general purpose unless such purchase is authorized and payment therefor specifically provided in the law granting the appropriation. — (30 Stat., 316, chap. 68.) See act of January 12, 1895, section 95 (28 Stat., 623), as to exchange of books and documents. See section 19.3, Re\"ised Statutes, and notes thereto, as to use of contingent funds. [1898, May 4. Assistant to chief, Bureau of Ordnance.] That a line officer of the Navy may be detailed temporarily as assistant to the Chief of the Bureau of Ordnance in the Navy Department, and that such officer during such detail shall receive the liighest pay of his grade, and in the case of the death, resigna- tion, absence, or sickness of the cliief of the bureau shall, unless otherwise directed by the President, as provided by sections one and seventy-nine of the Revised Statutes, perform the duties of such chief until his successor is appointed or such absence or sickness shall cease, provided that, in case of the death, sickness, or absence on duty of the chief of the bureau and the assistant thereto, the chief clerk shall act as cliief of the bureau. — (30 Stat., 373, chap. 234.) See sections 177-182. and 421, Re\'ised Statutes, and notes thereto. [1898, May 4. Pensions of inmates. Naval Home and naval hospitals.] Whenever any officer, seaman, or marine entitled to a pension is admitted to the Naval Home at Philadelphia, or to a naval hospital, his pension, while he remains there, shall be deducted from his accounts and paid to the Secretary of the Navy for the benefit of the fund from wliich such home or hospital, respectively, is maintained; and section forty-eight hundred and thirteen of the Revised Statutes of the United States is hereby amended accordingly. — (30 Stat., 377, chap. 234.) See notes to sections 4756, 4757, and 4813, This enactment was repeated in act of March Revised Statutes. 3, 1899 (30 Stat., 1027). [1898, May 4. Acting assistant surgeons.] The President is hereby author- ized to appoint for temporary service twenty-five acting assistant surgeons, who shall have the relative rank and compensation of assistant surgeons. — (30 Stat., 380, chap. 234.) See section 1411. Re^ised Statutes, and note thereto. [1898, May 4. Names of battle ships and monitors.] That hereafter all first-class battle ships and monitors owned by the United States shall be named for the States, and shall not be named for any city, place, or person until the names of the States, shall have been exhausted : Provided, That nothing herein 1261 June 17, 1898. Pt. S. STATUTES AT LARGE. contained shall be so construed as to interfere with the names of States already assigned to any such battle ship or monitor. — (30 Stat., 390, chap. 234.) See note to section 1531, Re\i8ed Statutes. as to monitors, by act of May 13, 1908 (35 Tliis provision was expressly repealed, Sfcat., 159). [1898, May 4. Medals of honor, enlisted men; rosettes and ribbons.] That the Secretary of the Navy be, and he is hereby, authorized to issue to any person to whom a medal of honor has been awarded, or may hereafter be awartlod, under the provisions of the' Acts approved December twenty-first, eighteen hundred and sixty-one, and July sixteenth, eighteen hundred and sixty-two, a rosette or knot to be worn in lieu of the medal, and a ribbon to be worn with the medal; said rosette or knot and ribbon to be each of a pattern to be prescribed and established by the President of the United States, and any appropriation that may hereafter be available for the contingent expenses of the Navy Department is hereby made available for the purposes of this Act: Provided, That whenever a ribbon issued under the provisions of this Act shall have been lost, destroyed, or rendered unfit for use, without fault or neglect on the part of the person to whom it was issued, the Secretary of the Navy shall cause a new ribbon to be issued to such person without charge therefor. — (30 Stat., 741, Res. No. 30.) The act of December 21, 1861, section 7 (12 Stat., 330), referred to in this resolution, was temporary legislation; the act of Jiily 16, 1862 (12 Stat., 584), also referred to herein, was superseded by an identical pro- vision contained in the act of May 17, 1864, section 3 (13 Stat., 79-80), which latter en- actment was embodied in section 1407, Revised Statutes, see that section and note thereto; see also act of F'ebruary 4, 1919 (40 Stat., 1056-1057), for later provisions on the subject. [1898, June 17. Hospital Corps established; organization of.] That a hos- pital corps of the United States Navy is hereby established, and shall consist of pharmacists hospital stewards, hospital apprentices (first class), and hospital apprentices; and for this purpose the Secretary of the Navy is empowered to appoint twenty-five pharmacists with the rank, pay, and privileges of warrant ofiicers, removable in the discretion of the Secretary, and to enlist, or cause to be enlisted, as many hospital stewards, hospital apprentices (first class), and hospital apprentices as in liis judgment may be necessary, and to limit or fix the number, and to make such regulations as may be required for their enlist- ment and government. Enlisted men in the Navy or the Marine Corps shall be eligible for transfer to the hospital corps, and vacancies occurring in the grade of pharmacist shall be filled by the Secretary of the Navy by selection from those holding the rate of hospital steward. — (30 Stat., 474-475, chap. 463.) Sec. 2. That all necessary hospital and ambulance service at naval hos- pitals, naval stations, navy-yards, and marine barracks, and on vessels of the Navy, Coast Survey, and Fish Commission, shall be performed by the members of said corps, and the corps shall be permanently attached to the Medical Department of the Navy, and shall be included in the effective strength of the Navy and be counted as a part of the enlisted force provided by law, and shall be subject to the laws and regulations for the govermnent of the Navy. — (30 Stat., 475, chap. 463.) Sec. 3. That the pay of hospital stewards shall be sixty dollars a month, the pay of hospital apprentices (first class) thirty dollars a month, and the pay of hospital apprentices twenty dollars a month, with the increase on account of 1262 Personnel Act. Pt. S. STATUTES AT LARGE. Mar. 3, 1899. length of service as is now or may hereafter be allowed by law to other enlisted men in the Navy. — (30 Stat., 475, chap. 463.) Sec 4. That all benefits derived from existing laws, or that may hereafter be allowed by law, to other warrant officers or enlisted men in the Navy shall be allowed in the same manner to the warrant officers or enlisted men in the hospital corps of the Navy. — (30 Stat., 475, chap. 463.) Sec. 5. That all acts and parts of acts, so far as they conflict with the pro- visions of this Act, are hereby repealed. — (30 Stat., 475, chap. 463.) Section 3 of this act was expresslv repealed bv act of August 29, 191G (39 Stat., 573), which contained othei* provisions on the subject of pay of enlisted men of the Hospital Corps. (See note to section 1569, Revised Statutes, as to pay of enlisted men.) The authorized strength of the Hospital Corps was fixed by act of August 29, 1916 (39 Stat., 572), and its duties were prescribed by the same act (39 Stat., 573). superseding the provisions of sections 1 and 2 of this act on the same subject. The pav of pharmacists was also prescribed by act'of August 29, 1916 (39 Stat., 573), which further provided for the promotion of pharmacists to chief pharmacists, thereby superseding a provision in the act of August 22, 1912 (37 Stat., 345), which had previous- ly authorized such promotion. See note to section 1405, Revised Statutes. [1898, July 7. Leaves of absence, Executive Departments.] Nothing con- tained in section seven of the Act making appropriations for legislative, execu- tive, and judicial expenses of the Government for the fiscal year eighteen hundred and ninety-nine, approved March fifteenth, eighteen hundred and ninety-eight, shall be construed to prevent the head of any Executive Depart- ment from granting thirty days' annual leave with pay in any one year to a clerk or employee, notwithstanding such clerk or employee may have had during such year not exceeding thirty days' leave with pay on account of sickness as provided in said section seven. — (30 Stat., 653, chap. 571.) See the The act of IMarch 15, 1898, section 7 (30 Stat., 316-317), referred to herein, expressly amended and reenacted section 5 of the act of March 3, 1893 (27 Stat., 715). latter act and note thereto. [1899, Feb. 24, sec. 4. Leaves of absence, Executive Departments.] That the thirty days' annual leave of absence with pay in any one year to clerks and employees in the several Executive Departments authorized by existing law shall be exclusive of Sundays and legal holidays. — (30 Stat., 890, chap. 187.) See act of March 3, 1893, section 5 (27 Stat., 715), and note thereto. [1899, Mar. 3, sees. 1-6. Personnel Act; Engineer Corps transferred to line.] officer attained the same relative rank of cap- tain, commander, or lieutenant-commander are the same, the engineer officer shall take rank after such line officer. — (30 Stat., 1005, chap, 413.) "Sec. 3. That engineer officers who com- pleted their Naval Academy course of four years from eighteen hundred and seventy-eight to eighteen himdred and eighty, both inclusive, shall take rank in the line as determined by the Academic Board under the Department's in- stnictions of Decemlier first, eighteen hundred and ninety-seven; and engineer officers who completed their Naval Academy course of four years in eighteen hundred and eighty-one and eighteen hundred and eighty-two shall take rank in the line as determined by the merit roll of graduating classes at the conclusion of the six years' course, June, eighteen hundred and eighty-three and eighteen himdred and These sections provided as follows: "That the officers constituting the Engineer Corps of the Na\-y be, and are hereby, trans- ferred to the line of the Navy, and shall be commissioned accordinglv. (30 Stat., 1004, chap. 413.) "Sec. 2. That engineer officers holding the relative rank of captain, commander, and lieutenant-commander shall take rank in the line of the Navy according to the dates at which they attained such relative rank. Engineer officers graduated from the Naval Academy from eighteen hundred and sixty-eight to eighteen hundred and seventy-six, both years inclusive, shall take rank in the line next after officers in the line who graduated from the Naval Academy in the same year with them: Provided, That when the date of a line officer's commission as captain, commander, or lieuten- ant-commander and the date when the engineer 1263 Mar. 3, 1899. rt. 3. STATUTES AT LARGE. Personnel Act. eighty-four: Provided, Tliat those engineer oflk'ora wlio were appointed from ci\il life, and whose status is not fixed l)y section two of this Act, shall take rank with other line officers ac- cording to the dates of their first commissions, respectively: And provided further. That the engineer officers wlio completed their Naval Academy com'se of four years in eighteen hun- dred and eighty-one and eighteen hundred and eighty- two shall retain among themselves the same relative standing as shown on the Na^'y register at the date of the passage of this Act. — (30 Stat. 1005, chap. 413.) "Sec. 4. That engineer officers transferred to the line who are below the rank of com- mander, and extending down to, but not including, the first engineer who entered the Naval Academy as cadet midshipman, shall perform sea or shore duty, and such duty shall be such as is performed by engineers in the Navy: Promded, That any officer described in this section may, upon his own application, made within six months after the passage of this Act, be assigned to the general duties of the line, if he pass the examination now provided by law as preliminary to promotion to the grade he then holds, failure to pass not to displace such officer from the list of officers for sea or shore duty such as is performed by engineers in the Navy\— (30 Stat., 1005, chap. 413.) "Sec. 5. That engineer officers transferred to the line to perform engineer duty only who rank as, or above, commander, or who subse- quently attain such rank, shall perform shore duty only. (30 Stat., 1005, chap. 413.) "Sec 6. That all engineer officers not pro- vided for in sections four and five transferred to the line shall perform the duties ixow performed by line officers of the same grade: Provided, That after a period of two years subsequent to the passage of this Act they shall be required to pass the examinations now provided by law as preliminary to promotion to the grade they then hold, and subject to existing law governing examinations for promotion." (30 Stat., 1005, chap. 413.) See sections 1390-1394, and 1521, Re\'ised Statutes, and notes thereto, for laws and decisions relating to officers of the former Engineer Corps. Duties of former engineer oflB-cers. — Former engineer officers who, under this act, performed engineering duty only, on shore only, were made eligible for any shore duty compatible with their rank and grade to which the Secretary of the Navy may assign them, bv act of June 30, 1914 (38 Stat., 394), reenacted and made permanent by act of March 3, 1915 (38 Stat., 930). See notes to section 1390 and 1404, Revised Statutes. Line oflicers for engineering duty only. — The appointment and assignment of line officers for engineering duty only were author- ized by acts of Febniary 16, 1914, section 21 (38 Stat., 283), and August 29, 1916 (39 Stat., 580). [1899, Mar. 3, sec. 7. Number of line officers; commodores omitted.] This provision read as follows: "That the active list of the line of the Navy, as constituted by section one of this Act, shall be composed of eighteen rear-admirals, seventy captains, one hundred and twelve commanders, one hundred and seventy lieutenant-comman- ders, three hundred lieutenants, and not more than a total of three himdred and fifty lieuten- ants (jimior grade) and ensigns." — (30 Stat., 1005, chap. 413.) See sections 1362-1363, Revised Statutes, and note thereto, as to interpretation of this pro^iso, and for later laws relating to the number of line officers. [1899, Mar. 3, sec. 7. Pay of rear admirals, lower nine.] See section 1556, ReAdsed Statutes, and note thereto, under "4, Rear admirals," for interpretation of this clause, and for later laws relating to pay of rear admirals. This proviso read as follo-ws: "Provided, That each rear-admiral embraced in the nine lower numbers of that grade shall receive the same pay and allowance as are now allowed a brigadier-general in the Army." — (30 Stat., 1005, chap. 413.) [1899, Mar. 3, sec. 7. Promotion of ensigns.] Officers, after performing three years' service in the grade of ensign, shall, after passing the examinations now required by law, bo eligible to promotion to the grade of lieutenant (junior grade).— (30 Stat., 1005, chap. 413.) By act of June 4, 1920, section 5 (41 Stat., 836), it was provided that, imtil June 30, 1923, promotions to lieutenant (jimior grade) may be made without regard to length of service. As to examinations for promotion, see sections 1493-1505, ReA^ised Statutes, and notes thereto. [1899, Mar. 3, sec. 7. Chiefs of bureaus, rank and pay.] This proviso read as follows: ''Provided, That when the office of chief of bureau is filled bv an officer below the rank of rear-admiral, said officer shall, while holding said office, have the rank of rear-admiral and receive the same pay and allowance as are now allowed a brigadier-general in the Army." — (30 Stat., 1005-1006, chap. 413.) 1264 Personnel Act. Pt. 3. STATUTES AT LARGE. Mar. 3, 1899. See sections 421, 1471, 1472, and 1565, Revised Statutes, and notes thereto, for laws and decisions relating to chiefs of bureaus. By act of May 13, 1908 (35 Stat., 128), it was pro\dded that the pay and allowances of chiefs of bureaus "shall be the highest pay of the grade to which_ they belong, and not below that of rear admiral of the lower nine' '; by act of June 24, 1910 (36 Stat., 607), it was provided that their pay and allowances shall be the highest shore duty pay and allowances of rear admiral of the lower nine; said provision of June 24, 1910, was repealed by act of August 22, 1912 (37 Stat., 328), which made no other pro- vision on the subject; by act of July 1, 1918 (40 Stat., 717), chiefs of bureaus in the Navy De- partment are to have corresponding rank and receive the same pay and allowances as chiefs of bureaus in the War Department. [1899, Mar. 3, sec. 7. Retirement of commodores.] See sections 421, 1362, 1473, and 1481, Revised Statutes, and notes thereto, for laws and decisions relating to retirement of officers with the rank of commodore. Such retirements are now made only under section 1481, Re- vised Statutes. This proviso read as follows: "J.71C? provided further, That nothing con- tained in thi3_ section shall be construed to prevent the retirement of officers who now have the rank or relative rank of commodore with the rank and pay of that grade." — (30 Stat., 1006, chap. 413.) [1899, Mar. 3, sec. 7. Eelative rank abolished; military command; titles.] And provided further, That all sections of the Revised Statutes which, in defining the rank of ofiicers or positions in the Navy, contain the words ''the relative rank of" are hereby amended so as to read ''the rank of," but officers whose rank is so defined shall not be entitled, in virtue of their rank to com- mand in the line or in other staff corps. Neither shall this Act be construed as changing the titles of officers in the staff corps of the Navy. — (30 Stat,, 1006, chap, 413.) See sections 1471-1480, Revised Statutes, for provisions relating to relative rank of staff officers and chiefs of bureaus. See section 1488, Revised Statutes, as to mili- tarv command. See sections 421, 1471, and 1480, Revised Statutes, and notes thereto, as to titles. [1899, Mar. 3, sec. 7. Number of civil engineers.] ber, twenty-one. "—(30 Stat., 1006, chap. 413.) See section 1413, Revised Statutes, and note thereto, for later laws relating to civil This provision read as follows: "No appointments shall be made of civil engineers in the Navy on the active list under section fourteen hundred and thirteen of the Revised Statutes in excess of the present num- [1899, Mar. 3, sec. 8. Voluntary retirements, to create vacancies.] That officers of the line in the grades of captain, commander, and lieutenant-com- mander may, by official application to the Secretary of the Navy, have their names placed on a list which shall be known as the list of "Applicants for voluntary retirement," and when at the end of any fiscal year the average vacancies for the fiscal years subsequent to the passage of this Act above the grade of commander have been less than thirteen, above the grade of lieutenant- commander less than twenty, above the grade of lieutenant less than twenty- nine, and above the grade of lieutenant (junior grade) less than forty, the President may, in the order of the rank of the applicants, place a sufficient number on the retired list with the rank and three-fourths the sea pay of the next higher grade, as now existing, including the grade of commodore, to cause the aforesaid vacancies for the fiscal year then being considered. — (30 Stat., 1006, chap. 413.) By act of August 22, 1912 (37 Stat. 328), it was provided that officers thereafter retired under this section shall be retired with the rank and three-fourths of the sea pay of the grade fiom which retired. See sections 1457 and 1588, Revised Statutes, and notes thereto, on general subject of rank and pay on retirement; see also next section of this act, set forth below, and note thereto. 1265 ISIar. 3, 1899. Pt. 3. STATUTES AT LARGE. Personnel Act. [1899, Mar. 3, sec. 9. Compulsory retirements, to create vacancies.] This section read as follows: "That should it be found at the end of any fiscal year that the retirements pursuant to the provisions of law now in force, the voluntary re- tirements pro\'ided for in this Act, and casualties are not suHicient to cause the average vacancies enumerated in section eight of this Act, the Secretary of the Navy shall, on or about the first day of June, convene a board of five rear- admirals, and shall place at its disposal the service and medical records on file in the Navy Department of all the officers in the grades of captain, commander, lieutenant-commander, and lieutenant. The board shall then select, as soon as practicable after the first day of July, a sufficient number of officers from the before- mentioned grades, as constituted on the thirti- eth day of June of that year, to cause the average vacancies enumerated in section eight of this Act. Each member of said board shall swear, or affirm, that he will, without prejudice or par- tiality, and having in view' solely the special fitness of officers and the efficiency of the naval ser\-ice, perform the duties imposed upon him by this Act. Its finding, which shall be in writing, signed by all the members, not less than four governing, shall be transmitted to the President, who shall thereupon, by order, make the transfers of such officers to the retired list as are selected by the board: Provided, That not more than five captains, four commanders, four lieutenant-commanders, and two lieutenants are so retired in any one year. The promotions to fill the vacancies thus created shall date from the thirtieth day of June of the current year: And provided further, That any officer retired under the provisions of this section shall be retired with the rank and three-fourths the sea pay of the next higher grade, including the grade of commodore, which is retained on the retired list for this purpose."— (30 Stat. 1006, chap. 413.) It was amended by act of August 22, 1912 (37 Stat. 32S), which provided that officers thereafter retired under this section were to be retired with the rank and three-fourths of the sea pay of the grade from which retired. It was repealed by act of March 3, 1915. (38 Stat. 938.) The same act (38 Stat. 939), authorized the President, with the advice and consent of the Senate, within two years from the date of said act, to restore to the acti\'e list any officer of the Navy retired under this section. No restorations were made under said enact- ment. By act of August 29, 1916 (39 Stat. 602-603), the President was authorized to re- store to the active list certain officers named therein who had been retired under the pro- visions of this and the preceding section. See note to Constitution, Article I, section 7, clause 2, under ' ' Veto of bill to restore to active list officer voluntarily retired," and "Veto of bill to restore to active list officer compul- sorily retired." [1899, Mar. 3, sec. 10. Construction oflicers, number and rank of; promo- tions.] That of ttie naval constructors five shall have the ranis of captain, five of commander, and all others that of lieutenant-commander or lieutenant. Assistant naval constructors shall have the rank of lieutenant or lieutenant (junior grade). Assistant naval constructors shall be promoted to the grade of naval constructor after not less than eight or more than fourteen years' service as assistant naval constructor: Provided, That the whole number of naval constructors and assistant naval constructors on the active list shall not exceed forty in all.— (30 Stat., 1006-1007, chap. 413.) with act of August 29, 1916 (39 Stat. 576). See sections 1402-1404, and 1477, Revised Statutes, and notes thereto, for later laws relating to the number and rank of con- struction officers. Assistant naval constructors are appointed with the rank of lieutenant (junior grade), in accordance with this section; they are advanced in rank up to and including the rank of lieutenant commander with their "running mates" in the line, in accordance They are promoted to naval constructor after length of ser\dce, in accordance with this section; naval constructors are ad- vanced to ranks above Lieutenant com- mander by selection, in accordance with act of July 1, 1918 (40 Stat. 718). As to promotion and advancement of officers, see sections 1493-1505, Revised Statutes, and notes thereto. [1899, Mar. 3, sec. 11. Retirement, officers, civil war service.] That any officer of the Navy, with a creditable record, who served during the civil war, shall, when retired, be retired with the rank and three-fourths the sea pay of the next higher grade. — (30 Stat., 1007, chap. 413.) See act of June 29, 1906 (34 Stat., 554), and notes thereto; and see notes to sections 1457, 1588, and 1622, Revised Statutes. [1899, Mar. 3, Sec. 12. Warrant officers and commissioned warrant officers; appointment, promotion, pay.] That boatswains, gunners, carpenters, and sailmakers shall after ten years from date of warrant be commissioned chief 1266 Personnel Act. Ft. 3. STATUTES AT LARGE. Mar. 3, 1890. boatswains, chief gunners, chief carpenters, and chief sailmakers, to rank with but after ensign : Provided, That the chief boatswains, chief gunners, chief car- penters, and chief sailmakers shall on promotion have the same pay and allow- ances as are now allowed a second lieutenant in the Marine Corps: Provided, That the pay of boatswains, gunners, carpenters and sailmakers shall be the same as that now allowed by law: Provided, further, That nothing in this Act shall give additional rights to quarters on board ship or to command, and that immediately after the passage of this Act boatswains, gunners, carpenters and sailmakers, who have served in the Navy as such for fifteen years, shall be commissioned in accordance with the provisions of this section, and thereafter no warrant officer shall be promoted until he shall have passed an examination before a board of chief boatswains, chief gunners, chief carpenters and chief sailmakers, in accordance with regulations prescribed by the Secretary of the Navy.— (30 Stat., 1007, chap. 413.) See notes to sections 1405, 1407, 1410, 1417, 1438, 1491, and 1556, Revised Statutes; and see sections 14 and 15 of this act. Promotion of boatswains, gunners, carpenters, and sailmakers, to commissioned warrant officers, after six years from date of warrant, was authorized by act of April 27, 1904 [1899, Mar. 3, sec. 13. Pay and allowances, commissioned officers.] That, after June thirtieth, eighteen hundred and ninety-nine, commissioned officers of the line of the Navy and of the Medical and Pay Corps shall receive the sam<^ pay and allowances, except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army. — (30 Stat., 1007, chap. 413.) (33 Stat., 346). See also note to section 1405, Revised Statutes, under "Promotion of warrant officers." Pay of warrant officers and commissioned war- rant officers. See note to section 1556, Re\T.sed Statutes. By the Army appropriation act of May 11, 1908 (35 Stat., 108\ it was pro\dded that this section ' ' shall not be construed as changing the pay of any naval officer by reason of the provisions of this Act." So much of tliis provision as relates to pay has been superseded by later laws, except in so far as such later enactments have con- tained saAdng clauses protecting officers against any reduction in pay by reason thereof. (See note to sec. 1556, R. S., under "1. General rule; amendatory stat- utes." So much of this provision aa relates to allow- ances is still in force, and has been ex- tended to include all commissioned officers of the Navy. (See acts of May 13, 1908, 35 Stat., 128, and Aug. 29, 1916, 39 Stat., 581; see also 24 Comp. Dec. 610, noted under sec. 1487, R. S.; and see, as to allowances in general, notes to Bees. 1487 and 1558, R. S.) The designation of the "Pay Corps" was changed to "Supply Corps," by act of July 11, 1919 (41 Stat., 147) [1899, Mar. 3, sec. 13. Pay reduced for shore duty.] This proviso read as follows: ^'Provided, That such officers when on shore shall receive the allowances, but fifteen per centum less pay than when on sea duty ; but this provision shall not apply to warrant offi- cers commissioned under section twelve of this Act."— (30 Stat., 1007, chap. 413.) It was repealed by act of June 29, 1906 (34 Stat., 554). By act of May 13, 1908 (35 Stat.", 128), officers on sea duty were allowed 10 per cent increase in the pay therein provided for shore duty. (See notes to sec. 1571, R. S., as to sea service.) [1899, Mar. 3, sec. 13. Shore duty beyond seas.] This proviso read as follows: ^^ Provided further, That when naval officers are detailed for shore duty beyond seas they shall receive the same pay and allowances as are or may be provided by or in pursuance of law for officers of the Army detailed for duty in similar places."— (30 Stat., 1007, chap. 413.) See note to section 1556, Revised Stat- utes, under "38. Additional pay for special duty," for later laws and decisions relating to pay of officers for shore duty beyond seas. 1267 Mar. 3, 1899. Ft. 3. STATUTES AT LARGE. Personnel Act. [1899, Mar. 3, sec. 13. Rank of chaplains.] This proviso read as follows: "■Providdl furtlur, That naval chaplains, who do not possess relative rank, shall have the rank of lieutenant in the Navy."— (30 Stat., 1007, chap. 413.) See section 1479, Revised Statutes, and note thereto, for later laws and decisions relating to the rank of chaplains. 1899, Mar. 3, sec. 13. Constructive service, longevity pay.] It was repealed by act of March 4, 1913 (37 Stat., 891-892), as to persons entering the Na\y from and after the date of said act. See note to section 1556, Revised Statutes, under "39. Longe\'ity pay. ' ' This clause read as follows: "And that all officers, including warrant officers, who have been or may be appointed to the NaAy from civil life shall, on the date of appointment, be credited, for computing their pav, mth five vears' service." — (30 Stat., 1007, chap. 413.) " [1899, Mar. 3, sec. 13. Prize and bounty, laws repealed.] And all provisions of law authorizing the distribution among captors of the whole or any portion of the proceeds of vessels, or any property hereafter captured, condemned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy hereafter occurring in time of war, are hereby repealed. — (30 Stat., 1007., chap. 413.) See sections 4613-4652, Revised Statutes, and notes thereto, as to prize. See section 1536, Revised Statutes, and note thereto, as to salvage. [1899, Mar. 3, sec. 13. Present pay not reduced.] And 'provided further, That no provision of this Act shall operate to reduce the present pay of any commissioned officer now in the Navy; and in any case in which the pay of such an officer would otherwise be reduced he shall continue to receive pay according to existing law. — (30 Stat., 1007, chap. 413.) Amendment to this proviso was made by act of June 7, 1900 (31 Stat., 697), so as to pro\dde that nothing contained in this act "shall operate to reduce the pay which, but for the passage of said act, would have been recei-s'ed by any commissioned officer at the time of its passage or thereafter. ' ' See note to section 1556, Revised Statutes, un- der "1. General rule: amendatory stat- utes." [1899, Mar. 3, sec. 13. Pay of retired officers.] the Navy."— (30 Stat., 1007, chap. 413.) See section 1588 Revised Statutes, and note thereto, as to pay of retired officers. This proviso read as follows: ''And provided further, That nothing in this Act shall operate to increase or reduce the pay of any officer now on the retired list of [1899, Mar. 3, sec. 14. Machinists, appointment, qualifications, number.] That upon the passage of this Act the Secretary of the Navy shall appoint a board for the examination of men for the position of warrant machinists, one hundred of whom are hereby authorized. The said examination shall be open, first, to all machinists by trade, of good record in the naval service, and if a sufficient number of machinists from the Navy are not found duly qualified, then any machinist of good character, not above thirty years of age, in civil life shall be chgible for such examination and appointment to fill the remaining vacancies. All subsequent vacancies in the list of warrant machinists shall be filled by competitive examination before a board ordered by the Secretary of the Navy, and open to all machinists by trade who are in the Navy, and machinists of good character, not above thirty years of age, in civil life author- ized by the Secretary of the Navy to appear before said board, and, where candidates from civil life and from the naval service possess equal qualifications. 1268 Personnel Act. Pt. S. STATUTES AT LARGE. Mar. 3, 1899. the preference shall be given to those from the naval service. — (30 Stat., 1007- 1008, chap. 413.) The title of "warrant machinist" was changed to "machinist" by act of March 3, 1909 (35 Stat., 771). See note to section 1405, Revised Statutes, un- der "Machinists," and "Promotion of war- rant officers"; see also sections 1407, 1417, 1438, 1491, and 1556, Revised Statutes, and notes thereto. [1899, Mar. 3, sec. 15. Machinists, pay and retirement; acting appointment; uniform.] That the pay of warrant macliinists shall be the same as that of warrant officers, and they shall be retu'ed under the provisions of existing law for warrant officers. Warrant machinists shall receive at first an acting appointment, which may be made permanent under regulations established by the Navy Departmentf or other warrant officers. They shall take rank with other warrant officers according to date of appointment and shall wear such uniform as may be prescribed by the Navy Department. — (30 Stat., 1008, chap. 413.) Title of "warrant machinist" changed to "ma- chinist": See note to preceding section. Pay of warrant officers and acting warrant offi- cers: See note to section 1556, Revised Stat- utes, under "25. Warrant officers, acting warrant officers, and commissioned warrant officers. ' ' Retirement of warrant officers: See notes to sections 1405 and 1448, Revised Statutes, under "Retirement of warrant officers." Acting appointments: See section 1410, Re- \ised Statutes, and note thereto. Rank of warrant officers: See section 1491, Re- vised Statutes, and note thereto. [1899, Mar. 3, sec. 16. Term of enlistment; honorable discharge gratuity; continuous service pay.] recommendation for reenlistment upon the expiration of his last term of service of not less than three years, who reenlists for a term of four years witliin four months from the date of his discharge, shall receive an increase of one dollar and thirty-six cents per month to the pay prescribed for the rating in which he serves for each consecutive reenlistment.' " — (30 Stat., 1008, chap. 413.) See note to section 1418, Revised Statutes, for later laws as to term of enlistment; and see section 1573, Revised Statutes, and note thereto, for later amendment and reenact- ment of that section, and for decisions respect- ing honorable discharge gratuity and con- tinuous service pay. This section read as follows: "That hereafter the term of enlistment of all enlisted men of the Navy shall be four years: Provided, That section fifteen hundred and seventy-three. Revised Statutes, be amended to read: 'If any enlisted man or apprentice, being honorably discharged, shall reenlist for four years within four months thereafter, he shall, on presenting his honorable discharge or on accounting in a satisfactory manner for its loss, be entitled to pay during the said four months equal to that to which he would have been entitled if he had been employed in actual service; and that any man who has received an honorable discharge from his last term of enlistment, or who has received a [1899, Mar. 3, sec. 17. Retirement of enlisted men.] That when an enlisted man or appointed petty officer has served as such thirty years in the Unitea States Navy, either as an enlisted man or petty officer, or both, he shall, by making appUcation to the President, be placed on the retired list hereby created, with the rank held by him at the date of retirement; and he shall thereafter receive seventy-five per centum of the pay and allowances of the rank or rating upon which he was retired : Provided, That if said enlisted man or appointed petty officer had active service in the Navy or in the Army or IVIarine Corps, either as volunteer or regular, during the civil or Spanish- American war, such war service shall be computed as double time in computing the thirty years necessary to entitle him to be retired: And 'provided further, That applicants for retirement under this section shall, unless physically disqualified for service, be at least fifty years of age. — (30 Stat., 1008, chap. 413.) This section was amended by act of June 22, 1906 (34 Stat., 451), and as so amended was in large part superseded by act of March 2, 1907 (34 Stat., 1217). By act of March 3, 1915 (38 Stat., 941), "the period of time during which members of the naval resei've were actively employed with the Navv while enlisted in the naval 1269 Mar. 3, 1899. Pt. 3. STATUTES AT LARGE. Personnel Act. resers'e shall, for the purposes of retirement, be counted as active service in the Navy in the case of those who reenlist in the Navy after 8er\ace in the naval reserve." By act of August 29, 1916 (39 Stat., 591), transferred members of the Fleet Naval ReserNe may be placed on the retired list of the Na^•y upon completing 30 years serv-ice, including naval and fleet naval reserve ser\-ice; and by act of July 1, 1918 (40 Stat., 710), "service in the Navy, Marine Corps, National Naval Volunteers, and Naval Militia _ shall be counted as continuous service in the Naval Reserve Force " for the purpose of retirement. Active duty for retired enlisted men, in time of war or emergency, was authorized by acts of March 3, 1915 (38 Stat., 941), and August 29, 1916 (39 Stat., 591). Authority for the advancement of retired enlisted men employed on active duty is contained in the act of July 1, 1918 (40 Stat., 719). As to their pay while on active duty, see note to section 1569, Revised Statutes, under "17. Retired enlisted men." As to status of retired enlisted men, and whether subject to trial by court-martial, see note to section 1624, Revised Statutes. [1899, Mar. 3, sec. 18. Marine Corps, number and rank of line officers.] This section provided as follows: ' ' That from and after the date of the approval of this Act the active list of the line officers of the United States Marine Corps shall consist of of one brigadier-general commandant, five colonels, five lieutenant colonels, ten majors, sixty captains, sixty first lieutenants and sixty second lieutenants: Provided, That vacancies in all gi'ades in the line created by this section shall be filled as far as possible by promotion by seniority fi'om the line officers on the active list of said Corps: And provided further, That the commissions of officers now in the Marine Corps shall not be vacated by this act: And provided further. That vacancies in the gi'ade of brigadier-general shall be filled by selection from officers on the active list of the Marine Corps not below the grade of field officer." — (30 Stat., 1008, chap. 413.) See note to section 1596, Revised Statutes, for later laws as to organization of the Marine Corps; and see note to section 1601, Revised Statutes, as to rank of the commandant. [1899, Mar. 3, sec. 19. Marine Corps, filling of vacancies.] with Spain; or, third, from meritorious non- commissioned officers of the Marine Corps; or, fourth, from civil life: Provided, That after said vacancies are once filled there shall be no further appointments from civil life." — (30 Stat., 1008, chap. 413.) See note to section 1599, Revised Statutes, for later laws and decisions relating to the filling of vacancies in the Marine Corps. This section provided as follows: "That the vacancies existing in said Corps after the promotions and appointments herein provided for shall be filled by the President from time to time, whenever the actual needs of the naval ser\'ice require it, first, from the graduates of the Naval Academy in the manner now provided by law; or, second, from those who are ser\dng or who have served as second lieutenants in the Marine Corps during the war [1899, Mar. 3, sec. 20. Marine Corps, ages of candidates; examination for promotion.] That no person except such officers or former graduates of the Naval Academy as have served in the war with Spain, as hereinbefore provided for, shall be appointed a commissioned officer in the Marine Corps who is under twenty or over thirty years of age; and that no person shall be appointed a commissioned officer in said corps until he shall have passed such examination as may be prescribed by the President of the United States, except graduates of the Naval Academy, as above provided. That the officers of the Marine Corps above the grade of captain, except brigadier-general, shall, before being promoted, be subject to such physical, mental and moral examination as is now, or may hereafter be, prescribed by law for other officers of the Marme Corps. — (30 Stat., 1009, chap. 413.) Ages for appointment: See section 1599, Revised Statutes, and laws noted thereunder. Examination for promotion: See note to section 1599, Revised Statutes, \inder "Laws re- lating to promotion," and "Laws relating to promotion construed." [1899, Mar. 3, sec. 21. Marine Corps vacancies, when filled.] This section provided as follows: "That upon the passage of this Act not more than forty-five of the captains, forty-five first lieutenants and forty-five second lieutenants herein provided for shall be appointed; fifteen captains, fifteen first lieutenants and fifteen second lieutenants to be appointed subse- quently to January first, nineteen hundred." — (30 Stat., 1009, chap. 413.) 1270 Personnel Act. Pt. 3. STATUTES AT LARGE. Mar. 3, 1899. [1899, Mar. 3, sec. 22. Marine Corps, number and rank of staff officers; filling of vacancies.] This section provided as follows: "That the staff of the Marine Corps shall con- sist of one adjutant and inspector, one quarter- master and one pajTnaster, each with the rank of colonel ; one assistant adjutant and inspector, two assistant quartermasters and one assistant pajTnaster, each with the rank of major; and three assistant quartermasters with the rank of captain. That the vacancies created by this Act in the departments of the adjutant and inspector and paj-master shall be filled first by promotion according to seniority of the officers in each of these departments respectively, and then by selection from the line officers on the active list of the Marine Corps not below the grade of captain, and who shall have seen not less than ten years' service in the Marine Corps. That the vacancies created by this Act in the quartennaster's department of said corps shall be filled, first by promotion according to seniority of the officers in this department, and then by selection from the line officers on the active list of said corps not below the grade of first lieutenant: Provided, That all vacancies hereafter occurring in the staff of the Marine Corps shall be filled first by promotion according to seniority of the oflicers in their respective de- partments, and then by selection from officers of the line on the active list, as hereinbefore pro- \ided for."— (30 Stat., 1009, chap. 413.) See notes to section 1596, 1598, 1599, and 1602, Re\'ised Statutes, for later laws superseding this section. By act of August 29, 1916 (39 Stat., 610), the permanent staff system in the Marine Corps was abolished, and a system of temporary details from the line was substituted therefor. (See note to section 1598, Revised Statutes.) As to rank of staff officers, see note to section 1602, Re\ased Statutes. [1899, Mar. 3, sec. 23. Marine Corps, number of enlisted men.] Tliat the enlisted force of ttie Marine Corps shall consist of five sergeant majors, one drum major, twenty quartermaster sergeants, seventy- two gunnery sergeants with the rank and allowance of the first sergeant, and whose pay shall be thirty-five dollars per month; sixty first sergeants; two hundred and forty sergeants; four hundred and eighty corporals; eighty drummers; eighty trumpeters; and four thousand nine hundred and sixty-two privates. — (30 Stat., 1009, chap. 413.) See note to section 1596, Revised Statutes, under " Number and grades of enlisted men," for later laws increasing the num- ber of enlisted men from time to time, and otherwise modifying, but not repealing or superseding, this section. [1899, Mar. 3, sec. 24. Marine band; organization and pay of.] be fifty dollars per month and the allowances of a sergeant; such musicians of the band to have no increased pay for length of ser\dce." — (30Stat.,1009, chap. 413.) It -was superseded by act of August 29, 1916 (39 Stat., 612 I. See note to section 1596, Re- ^'ised Statutes; see also section 1613, Revised Statutes, and note thereto. This section provided as follows: "That the band of the United States Marine Corps shall consist of one leader, with the pay and allowances of a first lieutenant ; one second leader, whose pay shall be seventy-five dollars per month, and who shall have the allowances of a sergeant major; thirty first class musicians, whose pay shall be sixty dollars per month ; and thirty second class musicians whose pay shall [1899, Mar. 3, sec. 25. Navy, oath of allegiance, officers and enlisted men.] That the oath of allegiance now provided for the officers and men of the Army and ]\Iarine Corps shall be administered hereafter to the officers and men of the Navy.— (30 Stat., 1009, chap. 413.) See section 1609. Revised Statutes, and note thereto; see als.o notes to sections 1342, 1418, and 1757, ReAised Statutes. [1899, Mar. 3, sec. 26. Repeal of prior laws.] That all acts and parts of acts, so far as they conflict with the provisions of this Act, are hereby repealed. — (30 Stat., 1009, chap. 413.) [1899, Mar. 3. Pay of assistant to chief, Bureau of Supplies and Accounts.] The officer of the Pay Corps of the Navy detailed as assistant to the Chief of the Bureau of Supplies and Accounts pursuant to the act of Congress approved July twenty-seventh, eighteen hundred and ninety-four, shall hereafter receive the highest pay of his grade.— (30 Stat.. 1038, chap. 421.) 1271 June 7, 1900. Pt. S. STATUTES AT LARGE. The designation of the ''Pay Corps" was changed to "Supply Corps" by act of July II, l!»lf».— (41 Stat.. 147.) See act of July 2(). 1894 (28 Stat.. 132), which is the act referred to herein as the act approA^ed "July twenty-seventh," 1894; see also note to section 421, Revised Statutes. [1900, Mar. 21. Naval Intelligence, publications.] That the Secretary of the Navy bo, and is hereby, authorized to print, in excess of the one thousand copies authorized by the Act of January twelfth, eighteen hundred and ninety- five, such extra copies of the publications of the Office of Naval Intelligence as may be necessary for distribution to the naval service and to meet other official demands: Provided, That in no case shall the edition of any one publi- cation exceed two thousand copies. — (31 Stat., 713, Res. No. 14.) See act of .January 12, 1895, section 89 (28 Stat., 622-623). [1900, Apr. 17. Book of Estimates, statement of employees paid from general appropriations.] It shall be the duty of the Secretary of the Navy to submit in the Book of Estimates for the fiscal year nineteen hundred and two, and annually thereafter, under the respective bureaus and offices of the Navy Department, a statement in detail, showing the number of persons employed during the previous fiscal year and the rate of compensation of each under appropriations for "Increase of the Navy" or other general appropriations. — (31 Stat., 117, chap. 192.) See note to sections 429 and 430, Revised Statutes, and laws cited thereunder. [1900, May 24. Removal of charge of desertion.] That chapter eight hundred and ninety, volume twenty-five, of the United States Statutes at Large, entitled "An Act to relieve certain appointed or enlisted men of the Navy and Marine Corps from the charge of desertion," approved August four- teenth, eighteen hundred and eighty-eight, be, and the same is hereby, revived and reenacted. Sec. 2. That section five of the said Act be, and is hereby, so amended as to remove the limitation of time within which applications for relief may be received and acted upon under the provisions of said Act. — (31 Stat., 183, chap. 550.) See act of August 14, 1888 (25 Stat., 442-443). [1900, June 6. Accounting officers, not to deduct attorneys' fees.] That in the settlement of claims of officers, soldiers, sailors, and marines, or their representatives, and all other claims for pay and allowances within the juris- diction of the Auditor for the War Department or the Auditor for the Navy Department, presented and filed hereafter in which it is the present practice to make deductions of attorneys' fees from the amount found due, no deductions of fees for attorneys or agents shall hereafter be made, but the draft, check, or warrant for the full amount found due shall be delivered to the payee in person or sent to his bona fide post-office address (residence or place of business). — (31 Stat., 637, chap. 791.) See note to section 236, Revised Statutes, on general subject of accounts. [1900, June 7. Mileage or actual expenses, officers of the Navy.] That in lieu of traveling expenses and all allowances whatsoever connected therewith, including transportation of baggage, officers of the Navy traveling from point to point within the United States under orders shall hereafter receive mileage 1272 Pt. .3. STATUTES AT LARGE. Mar. 2, 1901. at the rate of eight cents per mile, distance to be computed by the shortest usually traveled route; but in cases where orders are given for travel to be jjerformed repeatedly between two or more places in the same vicinity the Secretary of the Navy may, in his discretion, direct that actual and necessary expenses only be allowed. Actual expenses only shall be paid for travel under orders outside the limits of the United States in North America. — (31 Stat., 685, chap. 859.) See notes to sections 1566 and 1612, Revised Statutes; and see acts of March 3, 1901 (31 Stat., 1029), and July 1, 1902 (32 Stat., 663). [1900, June 7. Naval hospital fund.] That from and after July first, nine- teen hundred, all forfeitures on account of desertion shall be passed to the credit of the naval hospital fund. — (31 Stat., 697, chap. 859.) See sections 4807-4810, Revised Statutes, and notes thereto. [1900, June 7. Rank of assistant surgeons.] Assistant surgeons shall rank with assistant surgeons in the Army. — (31 Stat., 697, chap. 859.) See section 1474, Revised Statutes, and note thereto. [1900, June 7. Pay of commissioned officers not reduced.] Section thirteen of the act approved March third, eighteen hundred and ninety-nine, entitled "An act to reorganize and increase the efficiency of the personnel of the Navy and Marine Corps of the United States," is hereby so amended as to provide that nothing therein contained shall operate to reduce the pay which, but for the passage of said act, would have been received by any commissioned officer at the time of its passage or thereafter. — ^(31 Stat., 697, chap. 859.) See note to section 1556, Revised Statutes, and see act of March 3, 1899, section 13 (30 Stat., 1007). [1901, Feb. 2, sec. 41. Wearing of badges, military societies.] That the distinctive badges adopted by military societies of men "who served in the armies and navies of the United States during the Spanish-American war and the incident insurrection in the Philippines" may be worn upon all occasions of ceremony by officers and men of the Army and Navy of the United States who are members of said organizations in their own right. — (31 Stat., 758, chap. 192.) See note to section 1407, Re\'ised Statutes. [1901, Mar. 2. Departmental publications, furnished Library of Congress.] That of the publications described in this section the number of copies which shall be printed and distributed by the Public Printer to the Library of Congress for its own use and for international exchange in lieu of the number now pro- vided by law shall be sixty-two, except as such number shall be enlarged to not exceeding one hundred copies by request of the Librarian of Congress, to wit: The House documents and reports, bound; the Senate documents and reports, bound; the House Journals, bound; the Senate Journals, bound; all other documents bearing a Congressional number and all documents not bearing a Congressional number printed by order of either House of Congress, or by order of any Department, bureau, commission, or officer of the Government, except confidential matter, blank forms, and circular letters not of a public character; the Revised Statutes, bound; the Statutes at Large, bound; the 1273 Mar. 3, 1901. Pt. 3. STATUTES AT LARGE. Congressional Record, bound; the Official Register of the United States, bound.— (31 Stat., 1464, Res. No. 16.) Sec. 2. That in addition to the foregoing the Public Printer shall supply to the Library of Congress, for its own use two copies of each of the above- described publications, unbound, as published; five copies of all bills and resolutions; ten copies of the daily Congressional Record; and two copies of all documents printed for the use of Congressional committees not of a confidential cliaracter.— (31 Stat., 1464, Res. No. 16.) Sec. 3. That of any publication printed at the Government expense by direction of any Department, commission, bureau, or officer of the Govern- ment elsewhere than at the Government Printing Office there shall be supplied to the Library of Congress for its own use and for international exchange sixty-two copies, except as such number shall be enlarged to not exceeding one hundred copies by request of the Joint Committee on the Library. — (31 Stat., 1465, Res. No. 16.) See act of January 12, 1895, section 58 (28 Stat., 610). [1901, Mar. 3, sec. 5. Estimates, time for submitting.] That hereafter it shall be the duty of the heads of the several Executive Departments, and of other officers authorized or required to make estimates, to furnish to the Secretary of the Treasury, on or before the fifteenth day of October of each year, their annual estimates for the public service, to be included in the Book of Estimates prepared by law under his direction, and in case of failure to furnish estimates as herein required it shall be the duty of the Secretary of the Treasury to cause to be prepared in the Treasury Department, on or before the first day of November of each year, estimates for such appropriations as in his judgment shall be requisite in every such case, which estimates shall be included in the Book of Estimates prepared by law under his direction for the consideration of Congress. — (31 Stat., 1009, chap. 830.) See act of March 3, 1875, section 3 (18 Stat., and 3666. Re\dsed Statutes, and laws noted 370); and see, generally, sections 429, 430, thereunder. [1901, Mar. 3. Mileage and traveling expenses; naval officers.] That in lieu of traveling expenses and all allowances whatsoever connected therewith, including transportation of baggage, officers of the Navy traveling from point to point within the United States under orders shall hereafter receive mileage at the rate of eight cents per mile, distance to be computed by the shortest usually traveled route; but in cases where orders are given for travel to be performed repeatedly between two or more places in the same vicinity the Secretary of the Navy may, in his discretion, direct that actual and necessary expenses only be allowed. Actual expenses only shall be paid for travel under orders outside the limits of the United States in North America * * *. — (31 Stat., 1029, chap. 831.) See note to section 1566, Re\'i8ed Statutes, and see acts of Jime 7, 1900 (31 Stat., 685), and July 1, 1902 (32 Stat., 663). [1901, Mar. 3. Transportation, enlisted men, Navy, discharged on medical survey and expiration of enlistment.] That the transportation to their homes, if residents of the United States, of enlisted men and apprentices discharged on medical survey; and the transportation to the place of enlistment, if resi- dents of the United States, of enlisted men and apprentices discharged on 1274 Pt. 3. STATUTES AT LARGE. Mar. 3, 1901. account of expiration of enlistment, shall hereafter be chargeable to the appro- priation "Transportation, recruiting, and contingent." — (31 Stat., 1030, chap. 831.) See note to section 1569, Revised Statutes, Revised Statutes, and act of June 3, 1916, under "20. Mileage and transportation on section 126 (39 Stat., 217). discharge"; see also note to section 1566, [1901, Mar. 3. Facilities of Departments allowed students and others.] That facilities for study and research in the Government Departments, * * * shall be afforded to scientific investigators and to duly qualified individuals, students, and graduates of institutions of learning in the several States and Territories, as well as in the District of Columbia, under such rules and restrictions as the heads of the Departments and Bureaus mentioned may prescribe.— (31 Stat., 1039, chap. 831.) See joint resolution of April 12, 1892 (27 Stat., 395). [1901, Mar. 3. Medals of honor and gratuity, enlisted men.] That any enlisted man of the Navy or Marine Corps who shall have distinguished himself in battle or displayed extraordinary heroism in the line of his profession shall, upon the recommendation of his commanding officer, approved by the flag- officer and the Secretary of the Navy, receive a gratuity and medal of honor as provided for seamen in section fourteen hunched and seven of the Revised Statutes.— (31 Stat., 1099, chap. 850.) [1901, Mar. 3. Quarters.] Boatswains, gunners, carpenters, sailmakers, warrant machinists, pharmacists and mates, * * * shall hereafter receive the same commutation for quarters as second lieutenants of the Marine Corps. — (31 Stat., 1107, 1108.) [1901, Mar. 3. Shore duty beyond seas.] That officers of the Navy, and officers and enlisted men of the Marine Corps, who have been detailed, or may hereafter be detailed, for shore duty in Alaska, the Philippine Islands, Guam, or elsewhere beyond the continental limits of the United States, shall be con- sidered as having been detailed for ''shore duty beyond seas," and shall receive pay accordingly, with such additional pay as may be provided by law for service in island possessions of the United States. — (31 Stat., 1108, chap. 852.) See sections 1556, 1569, 1571, and 1612, Revised Statutes, and notes thereto. [1901, Mar. 3. Advancement for war service; additional number officers.] That the advancement in rank of officers of the Navy and Marine Corps, when- soever made, for service rendered during the war with Spain, pursuant, respec- tively, to the provisions of sections fifteen hundred and six and sixteen hundred and five of the Revised Statutes, shall not interfere with the regular promotion of officers otherwise entitled to promotion, but officers so advanced, by reason of war service, shall, after they are promoted to higher grades, be carried there- after as additional to the numbers of each grade to which they may at any time be promoted; and each such officer shall hereafter be promoted in due course, contemporaneously with and to take rank next after the officer immediately above him; and all advancements made by reason of war service shall be appropriately so designated upon the official Navy list: Provided, however, That no promotion shall be made to fill a vacancy occasioned by the promotion, retirement, death, resignation, or dismissal of any officer who, at the time of 54641°— 22 81 1275 Mar. 3. 1901. Ft. S. STATUTES AT LARGE. such promotion, retirement, death, resignation, or dismissal, is an additional member of his grade under the foregoing provisions. — (31 Stat., 1108, chap. 852.) See sections 1506 and 1605, Re\'ised Statutes, and notes thereto; and see act of June 16, 1906 (34 Stat., 296). See also note to sec- tion 1363, Re\dsed Statutes, under "Addi- tional oflicers are authorized," etc. Additional numbers, promotion of. — The practice of making officers additional numbers in their gi"ade is followed by Congi-ess only where for good and sufficient reasons it is desired that such officers shall not delay the promotion of others who are their juniors. In other words, the pro\ision that an officer shall be an additional number in his grade is not intended for his benefit, but is intended to facilitate the promotion of others below him on the list; and unless Congress uses language clearly indicating its intention that the oilicer so made an additional number is to be promoted at an earlier date than he would otherwise have been entitled to promotion; that is to say, on the same date as the officer next above him on the list, he should be promoted only from the date on which his position would have entitled him to promotion had he not been made an additional number. In such cases the addi- tional number officer is not promoted either \vith the officer next below him or with the officer next aboA^e him, but is promoted pre- cisely as he would be if he were not an addi- tional number, only his promotion does not operate to delay the promotion of junior officers. It can make no difference to the additional number officer how many junior oflicers may be promoted at the same time; his promotion is in no way delayed thereby. (C. M. O. 6, 1915, p. 10, citing file 11130-26, Jan. 8, 1915.) [1901, Mar. 3. Board of visitors, Naval Observatory.] There shall be appointed by the President, by and \^'ith the advice and consent of the Senate, from persons not officers of the United States a board of six visitors to the Naval Observatory, four to be astronomers of high professional standing and two to be eminent citizens of the United States. Appointments to this board shall be made for periods of three years, but provision shall be made by initial appointments for shorter terms so that two members shall retire in each year. Members of this board shall serve without compensation, but the Secretary of the Navy shall pay the actual expenses necessarily incurred by members of the board in the discharge of such duties as are assigned to them by the Secre- tary of the Navy or are otherwise imposed upon them. The board of visitors shall make an annual visitation to the Observatory at a date to be determined by the Secretary of the Navy, and may make such other visitations not exceeding two in number annually by the full board or by a duly appointed committee as may be deemed needful or expedient by a majority of the board. The board of visitors shall report to the Secretary of the Navy at least once in each year the result of its examinations of the Naval Observatory as respects the condition of buildings, instruments, and apparatus, and the efficiency with which its scientific work is prosecuted, and shall also report as respects the expenditures in the administration of the Observatory. The board of visitors shall prepare and submit to the Secretary of the Navy regulations prescribing the scope of the astronomical and other researches of the Observatory and the duties of its staff with reference thereto. When an appointment or detail is to be made to the office of astronomical director, director of the Nautical Almanac, astronomer, or assistant astronomer, the board of visitors may recommend to the Secretary of the Navy a suitable person to fill such office, but such recommendation shall be determined only by the majority vote of the members present at a regularly called meeting of the board held in the city of Washington. — (31 Stat., 1122, chap. 852.) See note to section 434, Revised Statutes. [1901, Mar. 3. Superintendent of Naval Observatory.] The Superintendent of the Naval Observatory shall be, until further legislation by Congress, a line 1276 Pt. 3. STATUTES AT LARGE. Mar. 3, 1901. officer of the Navy of a rank not below that of captain. — (31 Stat., 1122, chap. 852.) See section 434, Re\ased Statutes, and note thereto. [1901, Mar. 3. Warrant officers, appointment as ensigns.] Whenever, in view of the vacancies in the grade of ensign on July thirtieth of any year unfilled by graduates of the Naval Academy, the Secretary of the Navy shall so recom- mend, the President may appoint to that grade, as of July thirtieth, from among the boatswains, gunners, or warrant machinists, not exceeding six in any one calendar year. No person shall be so appointed who is over thirty-five years of age; who has served less than six years as a warrant officer; who is not recom- mended by a commanding officer under whom he has served; nor until he shall have passed such competitive examination as may be prescribed by the Navy Department.— (31 Stat., 1129, chap. 852.) See notes to section 1405, Revised Statutes, under "Machinists," and "Ensigns and assist- ant paymasters appointed from warrant officers." [1901, Mar. 3. Classification and command of vessels.] That the President of the United States be, and he is hereby, authorized to establish, and from time to time to modify, as the needs of the service may rec|uire, a classification of vessels of the Navy, and to formulate appropriate rules governing assignments to command of vessels and squadrons. — (31 Stat., 1133, chap. 852.) See note to section 1529, Revised Statutes. [1901, Mar. 3. Military schools, loan of naval equipment.] That the Presi- dent be, and he is hereby, authorized, upon the application of the governor of any State having seacoast line or bordering on one or more of the Great Lakes, to direct the Secretary of the Navy to fm-nish to one well-established military school in that State, desiring to afford its cadets instruction in elementary seamanship, one fully equipped man-of-war's cutter for every twenty-five cadets in actual attendance, and such other equipment as may be spared and be deemed adequate for instruction in elementary seamanship: Provided, That the said school shall have adequate facilities for cutter driU, and shall have in actual attendance at least one hunched and forty cadets in uniform receiving military instruction and quartered in barracks under military regulation, and shall have the capacity to quarter and educate at the same time one hundred and fifty cadets: And 'provided further, That the Secretary of the Navy shall require a bond in each case, in double the value of the property, for the care and safe- keeping thereof and for the return of the same when required. — (31 Stat., 1440, chap. 863; 34 Stat., 620, chap. 3612.) This act was expressly amended and reenacted to read as above l)y act of June 29, 1906 (34 Stat., 620). The opening clause of the latter act was as follows: "That chapter eight hundred and sixty-three, volume tliirty-one, of the Statutes at Large, ap- proved March third, nineteen hundred and one, to authorize the Secretary of the Na\^ to loan naval equipment to certain military schools, and now the law in force, be, and the same is hereby, amended to read as follows." It was further amended by the following clause in the naval appropriation act of June 24, 1910 (36 Stat.. 613): "That the Act entitled *An Act to authorize the Secretary of the Na^vy to loan naval equipment to certain military schools,' approved March third, nineteen hundred and one, be amended by striking out the words 'one hundred and forty cadets ' and inserting in lieu thereof the words 'seventy-five cadets over fifteen vears of age.' " See also act of March 4, 1911 (.36 Stat., 1.353), for the establishment of marine schools; and see act of June 30. ] 906 (34 Stat. . 817), as to nautical schools in the Philippines. 1277 July 1, 1902. 77, .?. STATUTES AT LARGE. [1902, May 13. Printing of American Ephemeris and Nautical Almanac] That hereafter the "usual number" of copies of the American Ephemeris and Nautical Almanac shall not be printed. In lieu thereof there shall be printed and bound one thousand one hundred copies of the same, uniform with the ethtions printed for the Navy Department, as provided in section seventy-three, j)aray;raph five, of an Act approved January twelfth, eighteen hundred and ninety-five, providing for the public printing, binding, and distribution of public documents; one hundred copies for the Senate, four hundred for the House, and six hundred for the Superintendent of Documents for distribution to State and Territorial libraries and designated depositories. — (32 Stat., 740, Res. No. 20.) See act of January 12, 1895, section 73 (28 Stat., 613), and note to section 436, Revised Statutes; see also act of July 1, 1902 (32 Stat., 678). [1902, June 28. Blanks, books, filing devices, etc., procured by Public Printer.] The Public Printer is authorized hereafter to procure and supply, on the requisition of the head of any Executive Department or other Govern- ment establislmient, complete manifold blanks, books, and forms, required in duplicating processes; also complete patented devices mth wliich to file money- order statements, or other uniform official papers, and to charge such supplies to the allotment for printing and binding of the Department or Government establishment requiring the same. — (32 Stat., 481, chap. 1301.) See act of January 12, 1895, section 18 (28 Stat., 603). [1902, July 1. Actual expenses, repeated travel.] That hereafter in cases where orders are given to officers of the Navy or Marine Corps for travel to be performed repeatedly between two or more places in such vicinity as in the discretion of the Secretary of the Navy is appropriate, he may direct that actual and necessary expenses only be allowed. — (32 Stat., 663, chap. 1368.) See notes to sections 1566 and 1612, Revised Statutes, and see act of June 7, 1900 (31 Stat., 685). [1902, July 1. Transit pay, employees in insular possessions.] The Secre- tary of the Navy, in his discretion, is authorized to pay all civilian employees appointed for duty in the Philippine, Hawaiian, and Samoan islands, the island of Guam, and the island of Porto Rico, from the date of their sailing from the United States until they report for duty to the officer under whom they are to serve, and while returning to the United States by the most direct route and with due expedition, a per diem compensation corresponding to their pay while actually employed; and in cases where the appointee is not to fill an existing" vacancy his pay while traveling may be charged to the annual appropriation of the bureau concerned. — (32 Stat., 663, chap. 1368.) See note to section 1545, Revised Statutes. [1902, July 1. Publication of American Ephemeris and Nautical Almanac] Hereafter there shall be published of the American Ephemeris and Nautical Almanac two thousand five hundred copies, five hundred of which shall be for the use of the Senate, one thousand for the use of the House of Representatives, and one thousand for distribution or sale by the Navy Department. — (32 Stat., 678, chap. 1368.) See act of January 12, 1895, section 73 (28 Stat., 613), and Joint Resolution of May 13, 1902 (32 Stat., 740). See also note to section 436, Revised Statutes. 1278 Pt. 3. STATUTES AT LARGE. July 1, 1902. [1902, July 1. Commuted rations, payment to messes.] That money accru- ing from the rations of enlisted men commuted for the benefit of any mess may be paid on public bills to the commissary officer by the pay officer having their accounts.— (32 Stat., 680, chap. 1368.) See section 1585, Revised Statutes, and note thereto. [1902, July 1. Title of ''naval cadet" changed.] The title "naval cadet" is hereby changed to "midshipman." — (32 Stat., 686, chap. 1368.) See section 1512, Revised Statutes, and note thereto. [1902, July 1, sec. 4. Public Health Service, duties in time of war.] That the President is authorized, in his discretion, to utilize the Public Health and Marine-Hospital Service in times of threatened or actual war to such extent and in such manner as shall in his judgment promote the public interest without, however, in any w4se impairing the efficiency of the service for the purposes for w^hich the same was created and is maintained. — (32 Stat., 713, chap. 1370.) The designation of the ''Public Health and Marine-Hospital Service" was changed to "Public Health Service" by act of August 14, 1912 (37 Stat., 309). See note to section 1368, Revised Statutes, under "Public Health Service," for later laws on the subject; and see Joint Resolu- tion of July 9, 1917 (40 Stat., 242). [1902, July 1, sec. 5. Surgeon General, Navy, to detail officer on advisory board.] That there shall be an advisory board for the hygienic laboratory provided by the Act of Congress approved March third, nineteen hundred and one, for consultation with the Surgeon-General of the Public Health and Marine- Hospital Service relative to the investigations to be inaugurated, and the methods of conducting the same, in said laboratory. Said board shall consist of three competent experts, to be detailed from the Army, the Navy, and the Bureau of Animal Industry by the Surgeon-General of the Army, the Surgeon- General of the Navy, and the Secretary of Agriculture, respectively, which ex- perts, with the director of the said laboratory, shall be ex officio members of the board, and serve without additional compensation. Five other members of said board shall be appointed by the Surgeon-General of the Public Health and Marine-Hospital Service, with the approval of the Secretary of the Treasury, who shall be skilled in laboratory work in its relation to the public health, and not in the regular employment of the Government * * *. — (32 Stat., 713, chap. 1370.) See note to preceding section; see also sections 419 and 1471, Revised Statutes, and notes thereto. [1902, July 1, sec. 4. Surgeon General, Navy, to serve on board on licensing sale of viruses, etc.] That the Surgeon-General of the Army, the Surgeon- General of the Navy, and the supervising Surgeon-General of the Marine-Hos- pital Service, be, and they are hereby, constituted a board with authority, sub- ject to the approval of the Secretary of the Treasury, to promulgate from time to time such rules as may be necessary in the judgment of said board to govern the issue, suspension, and revocation of licenses for the maintenance of establish- ments for the propagation and preparation of viruses, serums, toxins, antitoxins, and analogous products, applicable to the prevention and cure of diseases of man, intended for sale in the District of Columbia, or to be sent, carried, or brought for sale from any State, Territory, or the District of Columbia, into any other 1279 Mar. 3. 1903. Pt. 3. STATUTES AT LARGE. State, Territory, or the District of Columbia, or from the United States into any foreign country, or from any foreign country into the United States: Pro- vided, That all licenses issued for the maintenance of establishments for the prop- agation and preparation in any foreign country of any virus, serum, toxin, anti- toxin, or product aforesaid, for sale, barter, or exchange in the United States, shall be issued upon condition that the licentiates will permit the inspection of the establislmients where said articles are propagated and prepared, in accord- ance with section three of this Act.— (32 Stat., 729, chap. 1378.) [1903, Jan. 12. Wearing of badges, military societies.] That the distinctive badges adopted by military societies of men who served in the armies and navies of the United States during the Chinese relief expedition of nineteen hundred may be worn upon all occasions of ceremony by officers and men of the Army and Navy of the United States who are members of said organization in their o^\n right.— (32 Stat., 1229, Res. No. 2.) See note to section 1407, Revised Statutes. [1903, Feb. 25. Departmental books, maps, etc., transferred to Library of Congress.] The head of any Executive department or bureau or any com- mission of the Government is hereby authorized from time to time to turn over to the Librarian of Congress, for the use of the Library of Congress, any books, maps, or other material in the library of the department, bureau, or commission no longer needed for its use, and in the judgment of the Librarian of Congress appropriate to the uses of the Library of Congress. Any books of a miscellaneous character no longer required for the use of such department, bureau, or commission, and not deemed an advisable addition to the Library of Congress, shall, if appropriate to the uses of the Free Public Library of the District of Columbia, be turned over to that library for general use as a part thereof. — (32 Stat., 865, chap. 755.) See section 418, Revised Statutes, and note thereto. [1903, Feb. 25. Civilian assistant, Bureau of Supplies and Accounts.] Bureau of Supplies and Accounts: For a civilian assistant, who shall per- form the duties of chief clerk, and in case of the death, resignation, sickness, or absence of both the Paymaster-General of the Navy and liis assistant, now provided for by law, unless otherwise directed by the President, as provided by section one hundred and seventy-nine. Revised Statutes, such civilian assistant shall become the acting chief of the Bureau * * *. — (32 Stat., 890, chap. 755.) See acts of July 26, 1894 (28 Stat., 132), and March 3, 1899 (30 Stat., 1038). [1903, Mar. 3. Clothing and small-stores fund.] For purchase of clothing and small stores for issUe to the Naval service, the present fund being inade- quate to meet the requirements of the service at this time; to be added to the "clothing and small-stores fund," one million dollars. — (32 Stat.^ 1191, chap. 1010.) See note to section 3689, Revised Statutes. [1903, Mar. 3. Warrant officers, appointment as ensigns.] Hereafter in each calendar year there may, under the restrictions imposed by existing law, be 1280 Pt. 3. STATUTES AT LARGE. Mar. 28, 1904. appointed from the boatswains, gunners, and warrant machinists of the Navy (32 Stat., 1197, chap. 1010.) twelve ensigns See notea to section 1405, Revised Statutes, under "Machinists," and "Ensigns and assistant paymasters appointed from war- rant officers. ' ' [1903, Mar. 3. Punishment for hazing.] That the superintendent of the Naval Academy shall make such rules, to be approved by the Secretary of the Navy, as will effectually prevent the practice of hazing; and any cadet found guilty of participating in or encouraging or countenancing such practice shall be summarily expelled from the Academy, and shall not thereafter be reap- pointed to the Corps of Cadets or be eligible for appointment as a commissioned officer in the Army or Navy or Marine Corps until two years after the graduation of the class of which he was a member. — (32 Stat., 1198, chap. 1010.) See notes to section 1519, Revised Statutes, for 104-105), for partial repeal of this enact- later laws relating to hazing and the court- ment. martial of midshipmen. See note to section 1512, Revised Statutes, as See act of April 9, 1906, section 2 (34 Stat., to title of students at the Naval Academy. [1903, Mar. 3. Midshipman from Porto Rico.] That hereafter there shall be at the Naval Academy one midshipman from Porto Rico, who shall be a native of said island, and whose appointment shall be made by the President on the recommendation of the governor of Porto Rico. — (32 Stat., 1198, chap. 1010.) See note to section 1513, Revised Statutes, under "Midshipmen appointed from Porto Rico." [1904, Mar. 18. Civilian employees, lump sum appropriations.] On and after July first, nineteen hundred and four, it shall not be lawful for the Secre- tary of the Navy to employ in the Navy Department, at Washington, District of Columbia, and pay out of the appropriations for new ships, any civilian expert aids, additional draftsmen, writers, copyists, and model makers, except as herein or as may hereafter be specifically authorized. — (33 Stat., 117, chap. 716.) See note to section 416, Revised Statutes. [1904, Mar. 18, sec. 3. Horses and carriages, restrictions on use.] No part of any money appropriated by this or any other Act shall be available for paying expenses of horses and carriages or drivers therefor for the personal use of any officer provided for by this or any other Act other than the President of the United States, the heads of Executive Departments, and the Secretary to the President: Provided, That this provision shall not apply to officials outside of the District of Columbia in the performance of their public duties. This para- graph shall not take effect until July first, nineteen hundred and four. — (33 Stat., 142, chap. 716.) See acts of February 3, 1905, section 4 (33 Stat., 687-688), and July 16, 1914, section 5 (38 Stat., 508). [1904, Mar. 28. Reprinting of documents for sale.] And the superintendent of documents is hereby authorized to order reprinted, from time to time, such public documents as may be required for sale, such order for reprinting to be sub- ject to the approval of the Secretary or head of the Department in which such public document shall have originated: Provided, That the appropriation for printing and binding shall be reimbursed for the cost of such reprints from the 1281 Apr. 7, 1904. Pt. S. STATUTES AT LARGE. moneys received by the superintendent of documents from the sale of public documents. — (33 Stat., 584, Res. No. 11.) See act of January 12, 1895, sections 42,52, 61, and G7 (28 Stat., 607-612), as to sale of public documents. [1904, Apr. 15. Duplicate medals, where originals lost.] That in any case where the President of the United States has heretofore, under any Act or resolution of Congress, caused any medal to be made and presented to any officer or pereon in the United States on account of distinguished or meritorious services, on a proper showing made by such person to the satisfaction of the President that such medal has been lost or destroyed through no fault of the beneficiary, and that diligent search has been made therefor, the President is hereby authorized to cause to be prepared and delivered to such person a dupli- cate of such medal, the cost of which shall be paid out of any money in the Treasury not otherwise appropriated. — (33 Stat., 588, Res. No. 23.) See note to section 1407, Revised Statutes. [1904, Apr. 27. Power plants, consolidated under Bureau of Yards and Docks.] The Secretary of the Navy is liereby authorized, in his discretion, to consolidate the several power plants in any or all of the several navy-yards and stations at each navy-yard and station under the Bureau of Yards and Doclvs for the genera- tion and distribution of light, heat, and power for all the purposes of the Navy. To the above end all such plants may be transferred from other bureaus to the Bureau of Yards and Docks, and all appropriations heretofore made for power houses and power plants for bureaus other than Yards and Doclss are hereby reappropriated and made available under the Bureau of Yards and Docks for the consolidations herein provided for; and to further carry out the purposes of this provision there is hereby appropriated the sum of three hundred thousand dollars.— (33 Stat., 337, chap. 1622.) [1904, Apr. 27. "Warrant officers, promotion of.] That subject to the restric- tions imposed by existing law, boatswains, gunners, and warrant machinists shall be eligible for appointment to the grade of ensign after four years' service as warrant officers, and boatswains, gunners, carpenters, and sailmakers shall be eligible for appointment as chief boatswains, chief gunners, chief carpenters, and chief sailmakers after six years from date of warrant. — (33 Stat., 346, chap. 1622.) See note to section 1405, Revised Statutes. [1904, Apr. 27. Retirement of Marine officers.] That officers of the IMarine Corps with creditable records who served during the civil war shall, when re- tired, be retired in like manner and under the same conditions as provided for officers of the Navy who served during the civil war. — (33 Stat., 349, chap. 1622.) See act of June 29, 1906 (34 Stat., 554), and see note to section 1622, Revised Statutes. [1904, Apr. 27. Mileage books, etc., payment in advance of travel.] And the Secretary of the Navy is hereby authorized to continue to purchase such mileage books, commutation tickets, and other similar transportation tickets as may in his discretion seem necessary, and to furnish same to officers and others ordered to perform travel on official business; and payment for such transportation tickets upon their receipt, in accordance with commercial usage, or prior to the actual performance of the travel involved, shall not be regarded 1282 Ft. 3. STATUTES AT LARGE. Feb. 3. 1905. as an advance of public money within the meaning of section thirty-six hundred and forty-eight of the Revised Statutes. — (33 Stat., 403, chap. 1630.) See sections 1566 and 3648, Revised Statutes, and notes thereto. [1904, Apr. 27. Naval records, transferred from other Departments.] All naval records, such as muster and pay rolls, orders, and reports relating to the per- sonnel and operations of the Navy of the United States, from the beginning of the Navy Department to the war of the rebellion, eighteen hundred and sixty- one, including operations against the French navy, Tripolitan war, war of eight- een hundred and twelve, operations against pirates in the West Indies, Florida war, and the war with Mexico, now in any of the Executive Departments, shall be transferred to the Secretary of the Navy, to be preserved. — (33 Stat., 403, chap. 1630.) See section 418, Revised Statutes, and note Stat., 579), and March 2, 1913 (37 Stat., thereto; see also acts of June 29, 1906 (34 723). [1904, Apr. 28. Transportation of supplies, vessels of United States, excessive charges.] That vessels of the United States, or belonging to the United States, and no others, shall be employed in the transportation by sea of coal, provisions, fodder, or supplies of any description, purchased pursuant to law, for the use of the Army or Navy unless the President shall find that the rates of freight charges by said vessels are excessive and unreasonable, in which case contracts shall be made under the law as it now exists : Provided, That no greater charges be made by such vessels for transportation of articles for the use of the said Army and Navy than are made by such vessels for transportation of like goods for private parties or companies. — (33 Stat., 518-519, chap. 1766.) See acts of March 3, 1915 (38 Stat., 944), and thereto: see also section 3718, Revised June 15, 1917 (40 Stat., 211), and notes Statutes. [1905, Feb. 3. Public Health Service, jurisdiction of Treasury Depart- ment.] Office of Sukgeon-Geneeal of Public Health axd IVIarixe- HospiTAL Service: * * * and said Service shall remain under the juris- diction of the Treasury Department until otherwise hereafter specifically provided by law. (33 Stat., 650-651, chap. 297.) See joint resolution of July 9, 1917 (40 Stat., 242); see also acts of July 1, 1902, section 4 (32 Stat., 713), and October 6, 1917 (40 Stat., 393); and see note to section 1368, Revised Statutes. The designation of the "Public Health and Marine- Hospital Service" was changed to "Public Health Service" bv act of Augiist 14, 1912 (37 Stat., 309). [1905, Feb. 3, sec. 4. Vehicles, restrictions on purchase and use.] No part of any money appropriated by this or any other Act shall be used for purchas- ing, maintaining, driving, or operating any carriage or vehicle (other than those for the use of the President of the United States, the heads of the Execu- tive Departments, and the Secretary to the President, and other than those used for transportation of property belonging to or in the custody of the United States), for the personal or official use of any officer or employee of any of the Executive Departments or other Government establishments at Washington, District of Columbia, unless the same shall be specifically author- ized by law or provided for in terms by appropriation of money, and all such carriages and vehicles so procured and used for official purposes shall have conspicuously painted thereon at all times the full name of the Executive 1283 See sections 177-182, and 421, Revised Statutes, and notes thereto. Mar. 3, 1905. Pt. S. STATUTES AT LARGE. Department or other branch of the public service to which the same belong and in the service of which the same are used. — (33 Stat., 687-688, chap. 297.) See acts of March 18, 1904, sec. 3 (33 Stat., 142), and July 16, 1914, section 5 (38 Stat., 508). [1905, Mar. 2. Sale of armament, sentimental reasons.] And individual pieces of United States armament which are not needed on account of historical value, and can be advantageously replaced, may be sold at a price not less than their cost price, when there exist for such sale sentimental reasons adequate in the judgment of the Secretary of War or Secretary of the Navy. — (33 Stat., 841, chap. 1307.) See section 1541, Revised Statutes, and acts of August 5, 1882, section 2 (22 Stat., 296), and June 30, 1890 (26 Stat., 194). [1905, Mar. 3. Assistant to chief, Bureau of Engineering.] That a line officer of the Navy may be detailed as assistant to the Chief of the Bureau of Steam Engineering in the Navy Department, and that such officer during such detail shall receive the highest pay of his grade, and in case of death, resignation, absence, or sickness of the Chief of the Bureau shall, unless other- wise directed by the President, as provided by section one hundred and seventy-nine of the Revised Statutes, perform the duties of such chief until his successor is appointed or such absence or sickness shall cease. — (33 Stat., 1111, chap. 1481.) The "Bureau of Steam Engineering" was designated as "Bureau of Engineering" by act of June 4, 1920 (41 Stat., 828). [1905, Mar. 3. Eemoval of derelicts at sea.] The President in his discretion may temporarily detail any vessel or vessels of the Navy to remove or destroy derelicts in the course of vessels at sea. The regulations to govern the detail and service of said vessels shall be prescribed by the Secretary of the Navy and approved by the President. — (33 Stat., 1164, chap. 1483.) See joint resolution of October 31, 1893 (28 Stat., 13), and see notes to sections 1529 and 1536, Revised Statutes. [1905, Mar. 3. Printing and binding, illustrations.] That hereater no part of the appropriations made for printing and binding shall be used for any illustration, engraving, or photograph in any document or report ordered printed by Congress unless the order to print expressly authorizes the same, nor in any document or report of any executive department or other Govern- ment establishment until the head of the executive department or Government establishment shall certify in a letter transmitting such report that the illus- tration is necessary and relates entirely to the transaction of public business. — (33 Stat., 1213, chap. 1483.) See act of January 12, 1895, section 94 (28 Stat., 623). [1905, Mar. 3. Printing for Departments, authority of Congress required.] Hereafter no book or document not having to do with the ordinary business transactions of the Executive Departments shall be printed on the requisition of any Executive Department or unless the same shall have been expressly authorized by Congress. — (33 Stat., 1249, chap. 1484.) See act of January 12, 1895, sections 86 and 94 (28 Stat., 622, 623). 1284 Pt. 3. STATUTES AT LARGE. Mar. 30, 1906. [1906, Mar. 30. Printing and binding, Departmental reports, etc., appro- priations chargeable ; apportionment of allotments.] That hereafter, in the printing and binding of documents or reports emanating from the Executive Departments, bureaus, and independent offices of the Government, the cost of which is now charged to the allotment for printing and binding for Congress, or to appropriations or allotments of appropriations other than those made to the Executive Departments, bm-eaus, or independent offices of the Govern- ment, the cost of illustrations, composition, stereotyping, and other work involved in the actual preparation for printing, apart from the creation of manuscript, shall be charged to the appropriation or allotment of appropriation for the printing and binding of the Department, bureau, or independent office of the Government in which such documents or reports originate; the balance of cost shall be charged to the allotment for printing and binding for Congress, and to the appropriation or allotment of appropriation of the Executive Depart- ment, bureau, or independent office of the Government, in proportion to the niunber delivered to each; the cost of any copies of such documents or reports distributed other\\*ise than thi'ough Congress, or the Executive Departments, bureaus, and independent offices of the Government, if such there be, shall be charged as heretofore : Provided^ That on or before the first day of December in each fiscal year each Executive Department, bureau, or independent office of the Government to which an appropriation or allotment of appropriation for printing and binding is made, shall obtain from the Public Printer an estimate of the probable cost of all publications of such Department, bureau, or inde- pendent office now required by law to be printed, and so much thereof as would, under the terms of this resolution, be charged to the appropriation or allotment of appropriation of the Department, bureau, or independent office of the Gov- ernment in which such publications originate, shall thereupon be set aside to be applied only to the printing and binding of such documents and reports, and shall not be available for any other purpose until all of such allotment of cost on account of such documents and reports shall have been fully paid. — (34 Stat., 825-826, Res. No. 13.) See act of January 12, 1895, section 93 (28 Stat., 623). [1906, Mar. 30. Printing of documents in two or more editions.] That the Joint Committee on Printing is herebv authorized and directed to establish rules and regulations, from time to time, which shall be observed by the Public Printer, whereby public documents and reports printed for Congress, or either House thereof, may be printed in two or more editions, instead of one, to meet the public requirements: Provided, That in no case shall the aggregate of said ecfitions exceed the number of copies now authorized or which may hereafter be authorized : And provided further, That the number of copies of any public document or report now authorized to be printed or which may hereafter be authorized to be printed for any of the Executive Departments, or bureaus or branches thereof, or independent offices of the Government may be supplied in two or more editions, instead of one, upon a requisition on the Pubfic Printer by the official head of such Department or independent office, but in no case shall the aggregate of said editions exceed the number of copies now authorized, or which may hereafter be authorized: Provided further, That nothing herein 1285 Apr. 9, 1906. Pt. S. STATUTES AT LARGE. shall operate to obstruct the printing of the full number of any document or report, or the allotment of the full quota to Senators and Representatives, as now authorized, or which may hereafter be authorized, when a legitimate demand for the full complement is known to exist. — (34 Stat., 826, Res. No. 14.) Sec note to act of January 12, 1895, section 89 (28 Stat., 622-623). [1906, Apr. 9. Dismissal of midshipmen; board of inquiry.] That it shall be the duty of the Superintendent of the United States Naval Academy, whenever he shall believe the continued presence of any midshipman at the said academy to be contrary to the best interests of the service, to report in writing such fact, with a fuU statement of the facts upon which are based his reasons for such belief, to the Secretary of the Navy, who, if after due consideration of the said report he shall deem the superintendent's said belief reasonable and well founded, shall cause a copy of the said report to be served upon the said midshipman and require the said midshipman to show cause, in writing and within such time as the said Secretary shall deem reasonable, why he should not be dismissed from the said academy; and after due consideration of any cause so shown the said Secretary may, in his discretion, but with the written approval of the President, dismiss such midshipman from the said academy. And the truth of any issue of fact so raised, except upon the record of demerit, shall be determined by a board of inquiry convened by the Secretary of the Navy under the rules and regulations for the government of the Navy. — (34 Stat., 104, chap. 1370.) Courts of inquiry are regulated by section 1624, Revised Statutes, articles 55-60. See notes to section 1519, Revised Statutes, under "Suspension of midshipman with- out pay," "Dismissal without court-mar- tial," and "Effect of dismissal." [1906, Apr. 9, sec. 2. Hazing, dismissal without court-martial; exception; prior statutes amended.] That so much of the acts approved June twenty-thirtl, eighteen hundred and seventy-four, and March third, nineteen hundred and three, as requires the Superintendent of the United States Naval Academy to convene a court-martial in all cases when it shall come to the knowledge of the said superintendent that any midshipman has been guilty of the offense com- monly kno^vn as '^hazing," and declares the finding of a court-martial so con- vened, when approved by the said superintendent, final, and directs that any midshipman found guilty by such court-martial shall be summarily dismissed from the said academy, and also all other Acts or parts of Acts inconsistent with the present Act are hereby repealed, and that the offense known as '^ hazing" may hereafter be proceeded against, dealt with, and punished as offenses against good order and discipline and for violation and breaches of the rules of said academy. But no midshipman shall be dismissed for a single act of hazing except under the provisions of section three of this Act, — (34 Stat., 104, chap. 1370.) As to definition of hazing, see section 4 of this act set forth below, and note to section 1519, Revised Statutes, under "Court-martial of midshipmen for hazing;" as to interpreta- tion of "a single act of hazing," also see See acts of .Tune 23, 1874 (18 Stat., 203-204), and March 3, 1903 (32 Stat., 1198). As to partial repeal of said acts by this section, see note to section 1519, Revised Statutes, under "Dismissal without court-martial." note last cited. [1906, Apr. 9, sec. 3. Court-martial for hazing; punishment; reviewing authority.] That the Superintendent of the United States Naval Academy may, in his discretion and with the approval of the Secretary of the Navy, 1286 PL 3. STATUTES AT LARGE. Apr. 9, 1906. cause any midshipman in the said academy to be tried by court-martial for the offense of hazing, as provided by the Act approved June twenty-thhd, eighteen hunched and seventy-four, and such court-martial, upon conviction, may sentence such midshipman to any punishment authorized by the said Act or by the Act approved March third, nineteen hundred and three, or authorized for any violation or breach of the rules of the said academy by the said rules, or, in cases of brutal or cruel hazing may, in addition to dismissal, sentence such midshipman to imprisoimient for a period not exceeding one year: Provided, That such midshipman shall not be confined in a military or naval prison or elsewhere with men who have been convicted of crimes or misdemeanors; and such finding and sentence shall be subject to review by the convening authority and by the Secretary of the Navy, as in the cases of other courts-martial. — (34 Stat., 104-105, chap. 1370.) See acts of June 23, 1874 (18 Stat., 203-204), Not to be dismissed for single act of hazing and March 3, 1903 (32 Stat., 1198), as modi- except by sentence of court-martial. See tied by section 2 of this act, set forth above. section 2 of this act, set forth above, and Seealsoactof March 2, 1895 (28 Stat., 838), note to section 1519, Revised Statutes, and note to section 1519, Revised Statutes. under "Dismissal without court-martial," See act of February 16, 1909, section 9 (35 Stat., and "Court-martial of midshiimien for 621), and reference thereunder, as to action hazing." See section 6 of this act, set by Secretary of the Navy on proceedings forth below, as to waiver of com't-martial and sentences of courts-martial. in certain cases. [1906, Apr. 9, sec. 4. "Hazing" defined.] That the offense of "hazing," as mentioned in this Act, shall consist of any unauthorized assumption of authority by one midshipman over another midshipman w^hereby the last-mentioned midshipman shall or may suffer or be exposed to suffer any cruelty, indignity, humiliation, hardship, or oppression, or the deprivation or abridgement of any right, privilege, or advantage to which he shall be legally entitled. — (34 Stat., 105, chap. 1370.) See note to section 1519, Re\T-sed Statutes, under "Court-martial of midshipmen for hazing." [1906, Apr. 9, sec. 5. Punishment of naval officers and civilian instructors for failing to report offenses ; dismissal mandatory.] That it shall be the duty of every professor, assistant professor, academic officer, or any cadet officer or cadet petty officer, or instructor, as well as every other officer stationed at the United States Naval Academy, to promptly report to the superintendent thereof any fact which comes to his attention tending to indicate any violation by a midshipman or midshipmen of any of the provisions of this Act or any violation of the regulations of the said academy. Any naval officer attached to the academy who shall fail to make such report as provided in this section shall be tried by court-martial for neglect of duty and if convicted he shall be dismissed from the service. Any civilian instructor attached to the academy who shall fail to make such report as provided in this section shall be dismissed by the superintendent of the academy upon the approval of the Secretary of the Navy.— (34 Stat., 105, chap. 1370.) [1906, Apr. 9, sec. 6. Waiver of court-martial in certain cases.] That this Act shall take effect from the date of its approval, but no midshipman now connected with the United States Naval Academy shall, by reason of its enact- ment, be punished for any offense heretofore committed otherwise than in pursuance of the sentence of a court-martial (if, by existing law, such sentence would be now necessary for such punishment) or punished more severely than 1287 June 12, 1906. Pt. 3. STATUTES AT LARGE. is now l)y law allowed for any offense heretofore committed: Provided, That any midshipman now in said Naval Academy may waive his right to trial by court-martial under existing law for any offense of hazing heretofore com- mitted and may accept punishment under the provisions of section two of this Act.— (34 Stat., 105, chap. 1370.) [1906, June 8. Preservation of historic monuments, etc., on public lands.] That any person who shall appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity, situated on lands owned or controlled by the Government of the United States, without the permission of the Secretary of the Department of the Government having jurisdiction over the lands on which said antiquities are situated, shall, upon conviction, be fined in a sum of not more than five hundred dollars or be impris- oned for a period of not more than ninety days, or shall suffer both fine and imprisonment, in the discretion of the court. Sec. 2. That the President of the United States is hereby authorized, in his discretion, to declare by pubUc proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected: Provided, That when such objects are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is hereby authorized to accept the relinquishment of such tracts in behalf of the Government of the United States. Sec. 3. That permits for the examination of ruins, the excavation of archaeological sites, and the gathering of objects of antiquity upon the lands under their respective jurisdictions may be granted by the Secretaries of the Interior, Agriculture, and War to institutions which they may deem properly qualified to conduct such examination, excavation, or gathering, subject to such rules and regulations as they may prescribe: Provided, That the examina- tions, excavations, and gatherings are undertaken for the benefit of reputable museums, universities, colleges, or other recognized scientific or educational institutions, with a view to increasing the knowledge of such objects, and that the gatherings shall be made for permanent preservation in public museums. Sec. 4. That the Secretaries of the Departments aforesaid shall make and publish from time to time uniform rules and regulations for the purpose of carrying out the provisions of this Act. — (34 Stat., 225, chap. 3060.) [1906, June 12. Contracts or purchases in excess of appropriations.] That no contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfill- ment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies, which, however, shall not exceed the necessities of the current year. — -(34 Stat., 255, chap. 3078.) See section 3732, Re\T.sed Statutes, and note thereto. 1288 PL 3. STATUTES AT LARGE. June 20, 1906. [1906, June 14. Aliens fishing in Alaskan waters; seizures and arrests by naval officers.] Sec. 4. That the collector of customs of the district of Alaska is hereby authorized to search and seize every foreign vessel and arrest every person violating any provision of this Act or any regulation made thereunder, and the Secretary of Commerce and Labor shall have power to authorize officers of the Navy and of the Revenue-Cutter Service and agents of the Department of Commerce and Labor to likewise make such searches, seizures, and arrests. If any foreign vessel shall be found within the waters to which this Act applies, having on board fresh or cured fish and apparatus or imple- ments suitable for killing or taking fish, it shall be presumed that the vessel and apparatus were used in violation of this Act until it is other^\'ise sufficiently proved. And every vessel, its tackle, apparatus, or implements so seized shall be given into the custody of the United States marshal of either of the districts mentioned in section three of this Act, and shall be held by him subject to the proceedings provided for in section two of this Act. The facts in connection with such seizure shall be at once reported to the United States district attorney for the district to which the vessel so seized shall be taken, whose duty it shall be to institute the proper proceedings. — (34 Stat., 264, chap. 3299.) Sec. 5. That the Secretary of Commerce and Labor shall have power to make rules and regulations not inconsistent with law to carry into effect the provisions of this Act. And it shall be the duty of the Secretary of Commerce and Labor to enforce the provisions of this Act and the rules and regulations made thereunder, and for that purpose he may employ, through the Secretary of the Treasury and the Secretary of the Navy, the vessels of the United States Revenue-Cutter Service and of the Navy: Provided, however, That nothing contained in this Act shall be construed as affecting any existing treaty or convention between the United States and any foreign power. — (34 Stat., 264, chap. 3299.) The designation of the Department of Com- Ser\-ice has been changed to Coast Guard, merce and Labor and the Secretary of that (Act Jan. 28, 1915, 38 Stat., 800.) Department has been changed to Depart- These sections were part of an act "to prohibit ment of Commerce, and Secretaiy of Com- aliens from fishing in the waters of xVlaska." merce. (Act Mar. 4, 1913, 37 Stat., 736.) See section 1529, Revised Statutes, and note The designation of the Revenue-Cutter thereto. [1906, June 16. Officers advanced for heroism, additional numbers.] That officers of the Navy and i\Iarine Corps advanced in rank for eminent and con- spicuous conduct in battle or extraordinary heroism, and who since such advancement have been or may hereafter be promoted, shall from the date of the passage of this Act be carried as additional numbers of each grade in which they serve.— (34 Stat., 296, chap. 3338.) See act of March 3, 1901 (31 Stat., 1108), and sections 1506, 1507, and 1605, Revised Statutes, and notes thereto. See also note to section 1303, Revised Statutes, under "Additional officers are authorized," etc. This act was entitled "An Act To extend the pro\dsions of the Act of March third, nine- teen hundred and one, to officers of the Na\y and Marine Corps advanced at any time under the provisions of sections fifteen hundred and six and sixteen hundred and five for eminent and conspicuous conduct in battle." [1906, June 20, sec. 4. Naval vessels to enforce sponge law.] That it shall be the duty of the Secretary of Commerce and Labor to enforce the provisions of this Act, and upon his request the Secretary of the Treasury and the Secre- 1289 June 22, 1906. Pt. S. STATUTES AT LARGE. tary of the Navy may employ the vessels of the Revenue-Cutter Service and of the Navy, respectively, to that end.— (34 Stat., 314, cliap. 3442.) This section was part of an act "to regulate the landing, delivery,cure, and sale of sponges, " applicable to "the -waters of the Gulf of Mexico or Straits of Florida." See section 1529, Revised Statutes, and note thereto. The designation of the Secretary of Commerce and Labor has been changed to Secretary of C ommerce. (Act. Mar. 4, 1913, 37 Stat., 73G.) The designation of the Revenue-Cutter Ser\-ice has been changed to Coast Guard. (Act Jan. 28, 1915, 38 Stat., 800.) [1906, June 22, sec. 4. Estimates, form and arrangement of; appropria- tion bills; Book of Estimates.] Hereafter the estimates for expenses of the Government, except those for sundry civil expenses, shall be prepared and submitted each year according to the order and arrangement of the appropria- tion Acts for the year preceding. And any changes in such order and arrange- ment, and transfers of salaries from one office or bureau to another ofTice or bureau, or the consolidation of ofhces or bureaus desired by the head of any Executive Department may be submitted by note in the estimates. The committees of Congress in reporting general appropriation bills shall, as far as may be practicable, follow the general order and arrangement of the respective appropriation Acts for the year preceding. Hereafter the heads of the several E?vecutive Departments and all other officers authorized or required to make estimates for the public service shall include in their annual estimates furnished the Secretary of the Treasury for inclusion in the Book of Estimates all estimates of appropriations required for the service of the fiscal year for which they are prepared and submitted, and special or additional estimates for that fiscal year shall only be submitted to carry out laws subsequently enacted, or when deemed imperatively neces- sary for the public service by the Department in which they shall originate, in which case such special or additional estimate shall be accompanied by a full statement of its imperative necessity and reasons for its omission in the annual estimates. — (34 Stat., 448-449, chap. 3514.) Stat., 415), and September 8, 1916, section 4 (39 Stat., 830). See sections 430 and 3660, Revised Statutes; see also acts of March 4, 1909, section 4 (35 Stat., 907), August 23, 1912, section 9 (37 [1906, June 22, sec. 6. Transfer of employees between Departments.] It shall not be lawful hereafter for any clerk or other employee in the classified service in any of the Executive Departments to be transferred from one Depart- ment to another Department until such clerk or other employee shall have served for a term of three years in the Department from which he desires to be transferred.— (34 Stat., 449, chap. 3514.) Stat., 498); and see notes to sections 169 and 416, Revised Statutes. See amendments to this section in acts of Octo- ber 6, 1917, sections 6 and 7 (40 Stat., 383-384), and March 28, 1918, section 2 (40 [1906, June 22, sec. 6. Restrictions on details to Departments from outside of District.] Hereafter it shall be unlawful to detail civil officers, clerks, or other subordinate employees who are authorized or employed under or paid from appropriations made for the military or naval establishments, or any other branch of the public service outside of the District of Columbia, except those officers and employees whose details are now specially provided by law, for duty in any bureau, office, or other division of any Executive Department in 1290 See notes to sections 169 and 416, Revised Statutes. Pt. 3. STATUTES AT LARGE. June 28, 1906. the District of Columbia, except temporary details for duty connected with their respective ofFices.^ — (34 Stat., 449, chap. 3514.) Similar provision "waa contained in act of August 5, 1882, section 4 (22 Stat., 255), and punishment for violation of that section is prescribed by act of August 23, 1912, sections (37 Stat., 414). [1906, June 22. Retirement of enlisted men, service credited.] That in computing the necessary thirty years' time for the retirement of petty ofhcers and enlisted men of the Navy, all services in the Army, Navy, or Marine Corps shall be credited. — (34 Stat., 451, chap. 3518.) See act of March 3, 1899, section 17 (30 Stat., 1008), and laws noted thereunder. [1906, June 26. Official envelopes procured by Postmaster General.] The Postmaster-General shall contract, for a period not exceeding four years, for all envelopes, stamped or otherwise, designed for sale to the public, or for use by the Post-Office Department, the postal service, and other Executive Depart- ments, and all Government bureaus and establishmentsi and the branches of the service coming under their jurisdiction, and may contract for them to be plain or with such printed matter as may be prescribed by the Department making requisition therefor: Provided, That no envelope shall be sold by the Government containing any lithographing or engraving, nor any printing nor advertisement, except a prmted request to return the letter to the writer. — (34 Stat., 476, chap. 3546.) See act of January 12, 1895, section 96 (28 Stat., 624), which this provision amends. [1906, June 26. Penalty envelopes, use of.] That hereafter no article, package, or other matter, except postage stamps, stamped envelopes, news- paper wrappers, postal cards, and internal-revenue stamps, shall be admitted to the mails under a penalty privilege, unless such article, package, or other matter, except postage stamps, stamped envelopes, newspaper wrappers, postal cards, and internal-revenue stamps would be entitled to admission to the mails under laws requiring payment of postage. That hereafter it shall be unlawful for any person entitled under the law to the use of a frank to lend said frank or permit its use by any committee, organ- ization, or association, or permit its use by any person for the benefit or use of any committee, organization, or association: Provided, That this provision shall not apph" to any committee composed of Members of Congress. — (34 Stat., 477, chap. 3546.) See act of March 3, 1877, sections 5 and 6 (19 Stat., 335-330), and laws noted thereunder. [1906, June 28. Guam and Samoa, etc., acknowledgment of deeds.] That deeds and other instruments affecting land situate in the District of Colum- bia or any Territory of the United States may be acknowledged in the islands of Guam and Samoa or in the Canal Zone before any notary public or judge, appointed therein by proper authorit}^, or by any officer therein who has ex officio the powers of a notary public: Provided, That the certificate by such notary in Guam, Samoa, or the Canal Zone, as the case may be, shall be accom- panied by the certificate of the governor or acting governor of such place to the effect that the notary taking said acknowledgment was in fact the officer he purported to be; and any deeds or other instruments affecting lands so situate, so acknowledged since the first day of January, nineteen hundred and five, and 54641°— 22 82 1291 June 29, 1906. rt. .?. s;ta tutes a t large. accompanied ]\v such certificate shall have the same effect as such deeds or other instruments hereafter so acknowledged and certified. — (34 Stat., 552, chap. 3585.) See section 183, Revised Statutes, and note tliorcto, as to oafhs. Status of Samoa and naval governor.— In this statute ("onpjress rerop:nizes and adopts the action of the President, taken pursuant to an opinion of the Attorney General, in com- missioninc: a naval ofTicer as governor of Amer- i(an Samoa. (File 3931-1429:36, Dec. 23, 1921, citing 25 Op. Atty. Gen., 592.) American Samoa is not conquered territory; nor was it acquired by the United States by treaty ■with any foreign country ha\dng power to dispose of it in that manner, although the Senate on February 13, 1900, ratified a con- vention between Great Britain, Germany, and the United States, under which Great Britain and Germany renounced to the United States all claim to the islands constituting what is now known as American Samoa. (File 3931- 1429:36, Dec. 23, 1921.) The sovereignty of the United States is based upon a formal cession of the island of Tutuila to the United States on April 17, 1900, by the chiefs of that island, and the subsequent recognition of the authority of the United States over Manua by the chiefs of said island on July 15, 1905. These cessions were ac- cepted by the President of the United States, and full information with respect thereto was communicated to Congress, and the action of the President was adopted and approved in a number of separate statutory enactments. (File 3931-1429:36, Dec. 23, 1921.) By act of August 5, 1909, section 1 (36 Stat., 11), a certain rate of duty was prescribed "upon all articles imported from any foreign country into the United States or into any of its pos- sessions (except the Philippine Islands and the islands of Guam and Tutuila)," thereby recognizing and describing Tutuila, one of the principal islands of American Samoa, as a "possession" of the United States. (File 3931-1429:36, Dec. 23, 1921, citing 30 Op. Attv. Gen., 231.) Prior legislation had also recognized the islands of Tutuila and Samoa as "possessions of the United Stales." (File 3931-1429:36, Dec. 23, 1921, citing 25 Op. Atty. Gen., 128, 130, 131.) By act of August 29, 1916 (39 Stat., 607), Congress made appropriation for a radio station in "American Samoa," thereby recognizing said islands as American territory. (File 3931- 1429:36, Dec. 23, 1921.) By act of March 3, 1919 (40 Stat., 1292), Congress proAddcd for a census of American Samoa to be taken by the governor of said islands in accordance with plans approved by the United States Director of the Census, thereby recognizing the jurisdiction of the United States over American Samoa, and also that the chief executive charged ■n-ith adminis- tration thereof is "governor" of said islands. (File 3931-1429:36, Dec. 23, 1921.) The government established by the President in American Samoa ha^ving been recognized and acquiesced in by Congress, said govern- ment must be recognized by all indi\-iduals who have occasion to deal therewith as the lawfully established government for American Samoa, and that said government continues as such until Congress sees fit to proA'ide other- wise. (File 3931-1429:36, Dec. 23, 1921.) Under the system of government which has been established in American Samoa, the individual commis.sioned by the President as governor thereof possesses supreme legislative, executive, and judicial powers of government in relation thereto, except in so far as restricted by the President or by the enactments of Congress. (File 3931-1429:36, Dec. 23, 1921.) For other cases, see generally notes to Con- stitution, Article I, section 8, clause 11, Article II, section 3 ("Duty to commission officers"), and Article IV, section 3, clause 2. [1906, June 29. Refund of enlistment bounty.] That the Secretary of the Navy may, in his discretion, require the whole or a part of the bounty allowed upon enlistment to be refunded in cases where men are discharged during the first year of enlistment, by request, for inaptitude, as undesirable, or for dis- ability not incurred in line of duty. — (34 Stat., 553, chap, 3590.) This provision is repeated in act of March 2, 1907 (34 Stat., 1176). Refund in cases of minors discharged on re- quest of parents or guardians, is pro\'ided for in act of March 3, 1915 (38 Stat., 931). Refund in cases of men discharged within six months of enlistment is authorized by a subsequent provision of this act set forth below (34 Stat., 5-56). See act of March 1, 1889 (25 Stat., 781), as to furnishing of bounty upon enlistment. See notes to sections 1418, 1569, and 3689, Revised Statutes; and see note to section 1556, Re\ised Statutes, as to uniform gra- tuitv in the Naval Reserve Force. See also" act of March 3, 1915 (.38 Stat., 932). Purchase of discharge was authorized bv act of Mar. 3, 1893 (27 Stat., 717); and furlough "udthout pay in lieu of discharge by pur- chase, and, under the same conditions, was authorized by act of August 29, 1916 (39 Stat., 580). Refund not authorized in absence of statute. — Prior to this enactment, it was held by the Attorney General that regulations issued by the Secretary of the Navy, requiring a refund of enlistment bounty in cases of ap- prentices discharged \vithin a year after enlist- ment, for disability not incurred in line of dutv, were inconsistent with law, and void. (25 'Op. Atty. Gen., 270. See note to act of Mar. 1, 1889, 25 Stat., 781.) 1292 Pt. 3. STATUTES AT LARGE. June 29, 1906. [1906, June 29. Retirement of Navy officers for Civil War service.] That any officer of the Navy not above the grade of captain who served with crecUt as an officer or as an enhsted man in the regular or volunteer forces during the civil war prior to April ninth, eighteen hundred and sixty-five, otherwise than as a cadet, and whose name is borne on the official register of the Navy, and who has heretofore been, or may hereafter be, retired on account of wounds or disability incident to the service or on account of age or after forty years' service, may, in the discretion of the President, by and with the advice and consent of the Senate, be placed on the retired list of the Navy with the rank and retired pay of one grade above that actually held by him at the time of retirement: Provided, That this act shall not apply to any officer who received an advance of grade at or since the date of his retirement or who has been restored to the Navy and placed on the retired list by virtue of the provisions of a special act of Congress. — (34 Stat., 554, chap. 3590.) See act of March 3, 1899, section 11 (30 Stat., 1007), and act March 3, 1909 (35 Stat., 753); and see note to section 1457, Revised Statutes; see also sections 1443-1465, Re- \'ised Statutes, relating to retired officers of the Navy. See section 1588, Revised Statutes, as to pay of retired officers. Midshipman service during the Civil War. — As to whether ser\'ice as a midshipman during the Ci\al War was servdce as an officer of the Navy within the meaning of section 11 of the Navy personnel act of IMarch 3, 1899 (30 Stat., 1007); and the effect of this enactment upon said provision of the personnel act, as applied to one who served as a midshipman in the Civil War, see the following cases: Jasper V. United States (38 Ct. Cls., 202, 40 Ct. Cls., 76); Moser w. United States (42 Ct. Cls., 86); Jasper t). United States (43 Ct. Cls., 368); United States ex rel. Moser v. Meyer (38 App. D. C, 13); Moser v. United States (49 Ct. Cls., 285). [1906, June 29. Retirement of Marine officers for Civil War service.] That any officer of the Marine Corps below the grade of brigadier-general who served with credit as an officer or as an enlisted man in the regular or volunteer forces during the civil war prior to April ninth, eighteen hundred and sixty-five, other- wise than as a cadet, and whose name is borne on the official register of the Marine Corps, and who has heretofore been, or may hereafter be, retired on account of wounds or disability incident to the service, or on account of age or after forty years' service, may, in the discretion of the President, by and with the advice and consent of the Senate, be placed on the retired list of the Marine Corps with the rank and retired pay of one grade above that actually held by him at the time of retirement: Provided, That this act shall not apply to any officer who received an advance of grade since the date of his retirement or who has been restored to the Marine Corps and placed on the retired list by virtue of the provisions of a special act of Congress. — (34 Stat., 554, chap. 3590.) See act of April 27, 1904 (33 Stat., 349); and see note to section 1622, Revised Statutes. [1906, June 29. Shore duty pay, naval officers.] That the provision con- tained in section thirteen of an act approved March third, eighteen hundred and ninety-nine, entitled "An act to reorganize and increase the efficiency of the personnel of the Navy and Marine Corps of the United States," reading as follows: ^'Provided, That such officers when on shore shall receive the allow- ances, but fifteen per centum less pay than when on sea duty; but this provision shall not apply to warrant officers commissioned under section twelve of this act," be, and the same is hereby, repealed. — (34 Stat., 554, chap. 3590.) See note to sections 1556 and 1571, Revised Statutes; and see act of March 3, 1899, section 13 (30 Stat., 1007). 1293 June 29, 1906. Pt. 3. STATUTES AT LARGE. [1906, June 29. Refund of enlistment outfits.] That liereafter the Secre- tary of the Navy may, in his discretion, require the whole or a part of the cost of outfits allowed upon enlistment to be refunded in cases where men are dis- charged during the first six months of enlistment for any cause other than disability incurred in line of duty. — (34 Stat., 556, chap. 3590.) See provision in this act as to refund on discharge during first year of enlistment (34 Stat., 55:5\ and note thereto. [1906, June 29. Naval Home, employing beneficiaries.] That for the per- formance of such additional services in and about the Naval Home as may be necessary, the Secretary of the Navy is authorized' to employ, on the recom- mendation of the governor, beneficiaries in said home, whose compensation shall be fixed by the Secretary and paid from the appropriation for the support of the home.— (34 Stat., 557, chap. 3590.) This pro\ision was repeated in the annual the Naval Home, have contained the fol- naval appropriation acts, pro\-iding for the lowing clause: "*_ * * emplo>Ttient of maintenance of the Naval Home, to and such beneficiaries in and about the Naval including the act of August 22, 1912 (39 Home as may be authorized by the Secre- Stat., 334-335), since which time the an- tary of the Na\^', on the recommendation nual appropriation acts for the naval serv- of the governor." (E. g., act June 4, 1920, ice, in pro%iding for the maintenance of 41 Stat., 818.) [1906, June 29. Chief of Bureau of Yards and Docks.] The Chief of the Bureau of Yards and Docks shall be selected from the members of the Corps of Civil Engineers of the Navy having not less than seven years' active service. — (34 Stat., 564, chap. 3590.) See section 422, Re\-ised Statutes, and note thereto. [1906, June 29. Naval Academy, admission of foreign students.] No person shall be admitted for instruction at the Naval Academy at Annapolis from any foreign country except upon authority of law hereafter enacted. — (34 Stat., 577, chap. 3590.) See note to section 1513, Revised Statutes. [1906, June 29. Appointment of midshipmen; nomination of candidates, etc.] Hereafter the Secretary of the Navy shall, as soon as possible after the first day of June of each year prececling the graduation of midshipmen in the succeeding year, notify in writing each Senator, Representative, and Delegate in Congress of any vacancy that wall exist at the Naval Academy because of such graduation, or that may occur for other reasons and which he shall be entitled to fill by nomination of a candidate and one or more alternates therefor. The nomination of a candidate and alternate or alternates to fill said vacancy shall be made upon the recommendation of the Senator, Representative, or Delegate, if such recommendation is made by the fourth day of March of the year foUowmg that in which said notice in writing is given, but if it is not made by that time the Secretary of the Navy shall fill the vacancy by appoint- ment of an actual resident of the State, Congressional district, or Territory, as the case may be, in which the vacancy will exist, who shall have been for at least two years immediately preceding the date of his appointment an actual and bona fide resident of the State, Congressional district, or Territory in which the vacancy wiU exist and of the legal Qualification under the law as now provided. In cases where by reason of a vacancy in the membership of the Senate or House of Representatives, or by the death or decHnation of a 1294 Ft. 3. STATUTES AT LARGE. June 29, 1906. candidate for admission to the academy there occurs or is about to occur at the academy, a vacancy from any State, district, or Territory that can not be fiJled by nomination as herein provided, the same may be filled as soon there- after and before the final entrance examination for the year as the Secretary of the Navy may determine. Tlie candidates allowed for the District of Columbia and all the candidates appointed at large, together with alternates therefor, shall be selected by the President within the period herein prescribed for nomi- nation of other candidates: Provided, That the President may select a candi- date for the District of Columbia for the year nineteen hundred and eight. — (34 Stat., 578, chap. 3590.) See notes to sections 1514 and 1517, Revised Statutes. [1906, June 29. Transfer of records to Navy Department.] That all records (such as muster and pay rolls and reports) relating to the personnel and opera- tions of public and private armed vessels of the North American colonies in the war of the Revolution now in any of the Executive Departments shall be transferred to the Secretary of the Navy, to be preserved, indexed, and pre- pared for pubhcation. — (34 Stat., 579, chap. 3590.) See acts of April 27, 1904 (33 Stat., 403), and March 2, 1913 (37 Stat., 723); see also note to section 418, Revised Statutes. [1906,. June 29. Deposit of savings, Marine Corps.] That hereafter enlisted men of the Marine Corps shall be entitled to deposit their savings with the United States, through any paymaster, in the some manner and under tlie same conditions as is now or may hereafter be provided for the enlisted men of the Navy: Provided, hou:ever, That the sums so deposited shall pass to the credit of the appropriation for pay of the Marine Corps. — (34 Stat., 579, chap. 3590.) See act of February 9, 1889 (25 Stat., 657-658), as to deposit of savings by enlisted men of the Navy; see also notes to sections 1569, 1612, and 1621, Revised Statutes. [1906, June 29. Notaries public, practice before Departments.] That sec- tion five hundred and fifty-eight of the Code of Law for the District of Columbia, relating to notaries public, be amended by adding at the end of said section the following: Provided, That the appointment of any person as such notary public, or the acceptance of his commission as such, or the performance of the duties thereunder, shall not disqualify or prevent such person from representing clients before any of the Departments of the United States Government in the District of Columbia or elsewhere, provided such person so appointed as a notary public who appears to practice or represent clients before any such Department is not otherwise engaged in Government employ and shall be admitted by the heads of such Departments to practice therein in accordance with the rules and regulations prescribed for other persons or attorneys who are admitted to practice therein: And provided further, That no notary public shall be authorized to take acknowledgments, administer oaths, certify papers, or perform any official acts in connection with matters in which he is employed as counsel, attorney, or agent or in which he may be in any way interested before any of the Departments aforesaid." — (34 Stat., 622, chap. 3616.) See section 190, Revised Statutes, and note thereto. 1295 June 30, 1906. Pt. S. STATUTES AT LARGE. [1906, June 30. Deceased inmates, Saint Elizabeths Hospital; disposition of moneys.] All moneys belonging to deceased inmates of the Government Hospital for the Insane and deposited in the Treasury by the superintendent as agent prior to February twentieth, nineteen hundred and five, shall, if unclaimed by the legal heirs of such inmate within the period of five years from the date of the passage of this Act, be covered into the Treasury, and all moneys so deposited by the superintendent as agent after February twentieth, nineteen lumdred and five, and b(>louging to inmates who have died since that time, or may hereafter die, shall likewise be covered into the Treasury unless claimed by his or her legal heirs within five years from the death of the inmate. And the superintendent of the Government Hospital for the Insane is hereby authorized and directed, under such regulations as may be prescribed by the Secretary of the Interior, to make diligent inquiry in every instance after the death of an inmate to ascertain the whereabouts of his or her legal heirs. Claims may be presented hereunder at any time, and when estabhshed by competent proof in any case more than five years after the death of an inmate shall be certified to Congress for consideration. — (.34 Stat., 730-731, chap. 3914.) Elizabeth's Hospital" by act of July 1, 1916 (39 Stat., 309). See sections 4839. and 4843, Revised Statutes. The designation of the "Governnient Hospital for the Insane" was changed to "Saint [1906, June 30, sec. 2. Estimates for printing and binding ; use of appro- priations; envelopes excepted.] Hereafter there shaU be submitted in the regular annual estimates to Congress under and as a part of the expenses for ''Printing and binding," estimates for all printing and binding required by each of the Executive Departments, their bureaus and offices, and other Gov- ernment establishments at Washington, District of Columbia, for each fiscal year; and after the fiscal year nineteen hmidred and seven no appropriations other than those made specifically and solely for printing and binding shall be used for such purposes in any Executive Department or other Government establishment in the District of Columbia: Provided, That nothing in this section shall apply to stamped envelopes, or envelopes and articles of stationery other than letter heads and note heads, printed in the course of manufacture. — (34 Stat., 762, chap. 3914.) See act of January 12, 1895, sections 27 and 96 (28 Stat., 604, 624). [1906, June 30, sec. 5. Reports to Secretary of the Treasury, proceeds of public property, etc.] Hereafter the Secretary of the Treasury shall require, and it shall be the duty of the head of each Executive Department or other Gov- ernment establishment to furnish him, within thirty days after the close of each fiscal year, a statement of all money arising from proceeds of public property of any kind or from any source other than the postal service, received by said head of Department or other Government establishment during the previous fiscal year for or on account of the public service, or in any other manner in the discharge of his official duties other than as salary or compensation, which was not paid into the General Treasury of the United States, together with a detailed account of all payments, if any, made from such funds dur- ing such year. All such statements, together with a similar statement apply- ing to the Treasury Department, shall be transmitted by the Secretary of the 1296 Pt. 3. STATUTES AT LARGE. June 30, 1906. Treasury to Congress at the beginning of each regular session. — (34 Stat., 763, chap. 3914.) See note to section 429, Revised Statutes, and see section 3692, Revised Statutes. [1906, June 30, sec. 6. Computation of annual or monthly compensation.] Hereafter, where the compensation of any person m the service of the United States is annual or monthly the following rules for division of time and compu- tation of pay for services rendered are hereby established: Annual compensa- tion shall be divided into twelve equal installments, one of which shall be the pay for each calendar month; and in making payments for a fractional part of a month one-thirtieth of one of such installments, or of a monthly compensation, shall be the daily rate of pay. For the purpose of computing such compen- sation and for computing time for services rendered during a fractional part of a month in connection with annual or monthly compensation, each and every month shall be held to consist of thirty days, without regard to the actual number of days in any calendar month, thus excluding the thirty-first of any calendar month from the computation and treating February as if it actually had thirty days. Any person entering the service of the United States during a thu'ty-one day month and serving until the end thereof shall be entitled to pay for that month from the date of entry to the thirtieth day of said month, both days inclusive; and any person entering said service during the month of February and serving until the end thereof shall be entitled to one month's pay, less as many thirtieths thereof as there were days elapsed prior to date of entry: Provided, That for one day's unauthorized absence on the thirty-first day of any calendar month one day's pay shall be forfeited. — (34 Stat., 763, chap. 3914.) See section 167, Re%dsed Statutes, and note thereto. [1906, June 30, sec. 9. Appropriations and contracts; authority must be specific] No Act of Congress hereafter passed shall be construed to make an appropriation out of the Treasury of the United States, or to authorize the execution of a contract involving the payment of money in excess of appropriations made by law, unless such Act shall in specific terms declare an appropriation to be made or that a contract may be executed. — (34 Stat,, 764, chap. 3914.) See section 3679, Revised Statutes. [1906, June 30. Nautical schools, Philippines, loan of vessel ; detail of en- listed men ; additional to authorized strength.] That the Secretary of the Navy be, and he is hereby, authorized and empowered to loan temporarily to the govern- ment of the Philippine Islands, upon the written application of the Secretary of War, a vessel of the United States Navy, to be selected from such vessels as are not suitable or requhed for general service, together with such of her apparel, charts, books, and instruments of navigation as he may deem proper, said vessel to be used only by such nautical schools as are or may hereafter be maintained by said government of the Philippine Islands: Provided, That when such schools shall be abandoned, or when the interests of the naval service shall so require, such vessel, together with her apparel, charts, books, and instru- ments of navigation, shall be immediately restored to the custody of the Secre- tary of the Navy: And provided further, That when such loan is made to the 1297 As to authorized enlisted strength of the Navy, see note to section 1417, Revised Statutes. other United States bonds in lieu of indem- nity bonds. Mar. 2, 1907. Pt. S. STATUTES AT LARGE. govcrmnent of the Philippine Ishiiuls, the Secretary of the Navy is authorized to detail from the enlisted force of the Navy a sullicient number of men, not exceeding six for any vessel, as ship keepers, the men so detailed to be addi- tional to the number of enlisted men allowed by law for the naval establishment, and in making details for this service preference shall be given to those men who have served twenty years or more m the Navy. — (34 Stat., 817, chap. 3937.) See act of March 3, 1901 (31 Stat., 1440), as amended and reenacted; see also act of March 4, 1911 (36 Stat., 1353). [1906, Dec. 11. Certified checks in lieu of bonds, contracts for naval sup- plies.] That the Secretary of the Navy may, in his discretion, accept, in lieu of the A\Titten guaranty required to accompany a proposal for naval supplies, and in lieu of the bond required for the faithful performance of a contract for fur- nishing such supplies, a certified check, payable to the order of the Secretary of the Navy, for from twenty-five to fifty per centum of the amount of such proposal or contract, the check to be held by the Secretary of the Navy until the requirements of the proposal or contract shall be complied with and as a guaranty for compliance with the same. — (34 Stat., 841, chap. 1.) See section 3719, Revised Statutes; see also act of February 24, 1919, section 1320 (40 Stat., 1148), as to acceptance of Liberty or [1907, Feb. 26, sec. 6. Traveling expenses, naval officers, Light-House Estab- lishment.] That hereafter officers of the Army and Navy detailed for service in connection with the Light-House Establislmaent shall be paid their actual traveling expenses w^hen traveling under orders on official duty to and from points which can not be conveniently reached by vessel or railroad. — (34 Stat., 997, chap. 1638.) See sections 1566 and 4679, Revised Statutes, and notes thereto. [1907, Mar. 2. Army transports, accommodations available for naval person- nel and supplies.] When, in the opinion of the Secretary of War, accommoda- tions are available, transportation may be provided for the officers, enlisted men, employees, and supplies of the Navy, the Alarine Corps, and for members and employees of the Philippine and Hawaiian governments, officers of the War Department, IVIembers of Congress, other officers of the Government while traveling on official business, and ^dthout expense to the United States, for the families of those persons herein authorized to be transported, and when accommodations are available, transportation may be provided for general passengers to the island of Guam, rates and regulations therefor to be pre- scribed by the. Secretary of War.— (34 Stat., 1170-1171, chap. 2511.) See sections 1135 and 3718, Revised Statutes, and notes thereto. [1907, Mar. 2. Refund of enlistment bounty.] That the Secretary of the Navy may, in his discretion, require the whole or a part of the boimty allowed upon enlistment to be refunded in cases where men are discharged during the first year of enlistment by request, for inaptitude, as tmdesirable, or for dis- ability not incurred in line of duty. — (34 Stat., 1176, chap. 2512.) See identical provision contained in act of June 29, 1906 (34 Stat., 553), and note thereto; see also provision for refund in cases of men discharged within six months of enlistment, contained in act of June 29, 1906 (34 Stat., 556). 1298 Pt. 3. STATUTES AT LARGE. Mar. 2, 1907. [1907, Mar. 2. Open-ttiarket purchases.] That hereafter the purchase of supphes and the procurement of services for all branches of the naval service may be made in open market in the manner common among business men, without formal contract or bond, when the aggregate of the amount required does not exceed five hundred dollars, and when, in the opinion of the proper administrative officers, such limitation of amount is not designed to evade purchase under formal contract or bond, and equally or more advantageous terms can thereby be secured. — (34 vStat., 1193, chap. 2512.) See sections 3709, 3718, and 3721, Revised Statutes, and notes thereto; and see act of June 17, 1910, section 4 (36 Stat., 531). [1907, Mar. 2. Report to Congress, proposed repairs on vessels.] That the Secretary of the Navy shall hereafter report to Congress, at the commence- ment of each regular session, the number of vessels and their names upon which any repairs or changes are proposed which in any case shall amount to more than two hundred thousand dollars, the extent of such proposed repairs or changes, and the amounts estimated to be needed for the same in each vessel; and expenditures for such repairs or changes so limited shall be made only after appropriations in detail are provided for by Congress. — (34 Stat., 1195, chap. 2512.) See note to section 1538, Revised Statutes, and see act of March 3, 1909 (35 Stat., 769). See also section 429, Revised Statutes, and note thereto. By act of August 29, 1916 (39 Stat., 605), the statutory limit of $200,000 for repairs and changes to capital ships, as provided in this act, was changed to $300,000. [1907, Mar. 2. Marines detailed as cooks.] Pay, Marine Corps. * * * Provided, That hereafter privates regularly detailed and serving as cooks, shall receive, in addition to the pay otherwise allowed by law, the following: First-class cooks, ten dollars per month; second-class cooks, eight dollars; third-class cooks, seven dollars; and fourth-class cooks, five dollars. — (34 Stat., 1200, chap. 2512.) See note to section 1612, Revised Statutes. [1907, Mar. 2. Retirement of enlisted men. Navy and Marine Corps.] That when an enlisted man shall have served thirty years either in the Army, Navy, or Marine Corps, or in all, he shall, upon making application to the President, be placed upon the retired list, with seventy-five per centum of the pay and allowances he may then be in receipt of, and that said allowances shall be as follows: Nine dollars and fifty cents per month in lieu of rations and clothing and six dollars and twenty-five cents per month in lieu of quarters, fuel, and light: Provided, That in computing the necessary thirty years' time all service in the Army, Navy, and Marine Corps shall be credited. Sec. 2. That all Acts and parts of Acts, so far as they conflict with the pro- visions of this Act, are hereby repealed. — (34 Stat., 1217-1218, chap. 2515.) See act of March 3, 1899, section 17 (30 Stat., as to enlisted men of the Marine Corps, 1008), and laws noted thereunder; and see act of August 30, 1890 (26 Stat., 504). [1907, Mar. 2. Wearing of badges, military societies.] That the distinctive badge adopted by the Army and Navy Union of the United States may be worn, in their own right, upon all public occasions of ceremony by officers and enlisted men of the Army and Navy of the United States who are members of said organization. — (34 Stat., 1423, Res. No. 18.) See note to section 1407, Revised Statutes. 1299 Apr. 28, 1908. Pt. S. STATUTES AT LARGE. [1908, Jan. 16. Printing and binding; numbering of documents; title; printing of departmental edition.] That publications ordered printed by Congress, or either House thereof, shall be in four series, namely: One series of reports made by the committees of the Senate, to be known as Senate reports; one series of reports made by the committees of the House of Repre- sentatives, to be known as House reports; one series of documents other than reports of committees, the orders for printing which originate in the Senate, to be known as Senate documents, and one series of documents other than committee reports, the orders for printing which originate in the House of Representatives, to be kno^vn as House documents. The publications in each series shall be consecutively numbered, the numbers in each series continuing in unbroken sequence throughout the entire term of a Congress, but the fore- going provisions shall not apply to the documents printed for the use of the Senate in executive session: Provided, That of the "usual number," the copies which are intended for distribution to State and Territorial libraries and other designated depositories of all annual or serial publications originating in or pre- pared by an Executive Department, bureau, office, commission, or board shall not be numbered in the document or report series of either House of Congress, but shall be designated by title and bound as hereinafter provided, and the departmental edition, if any, shall be printed concurrently "wath the ''usual number:" And provided further, That hearings of committees may be printed as Congressional documents only when specifically ordered by Congress or either House thereof. Sec. 2. That in the binding of Congressional documents and reports for distribution by the superintendent of documents to State and Territorial libraries and other designated depositories, every publication of sufficient size on any one subject shall hereafter be bound separately and receive the title suggested by the subject of the volume, and the others shall be distributed in unbound form as soon as printed. The Public Printer shall supply the super- intendent of documents sufficient copies of those publications distributed in unbound form, to be bound and distributed to the State and Territorial libraries and other designated depositories for their permanent files. The library edition, as well as all other bound sets of Congressional numbered documents and reports, shall be arranged in volumes and bound in the manner directed by the Joint Committee on Printing.— (35 Stat., 565-566, Res. No. 3.) See act of January 12, 1895 (28 Stat., 601-624). [1908, Apr. 28. Regattas or marine parades ; regulations ; enforcement.] That the Secretary of Commerce and Labor is hereby authorized and empowered in his discretion to issue from time to time regulations, not contrary to law, to promote the safety of life on navigable waters during regattas or marine parades. Sec. 2. That to enforce such regulations the Secretary of Commerce and Labor may detail any public vessel in the service of that Department and make use of any private vessel tendered gratuitously for the purpose, or upon the request of the Secretary of Commerce and Labor the head of any other Depart- ment may enforce the regulations issued under this Act by means of any public vessel of such Department and of any private vessel tendered gratuitously for the purpose. 1300 Pt. 3. STATUTES AT LARGE. May 13, 1908. Sec. 3. That the authority and power bestowed upon the Secretary of Commerce and Labor by sections one and two may be transferred for any special occasion to the head of another Department by the President whenever in his judgment such transfer is desirable. Sec. 4. That for any violation of regulations issued pursuant to this Act the following penalties shall be incurred: (a) A licensed officer shall be liable to suspension or revocation of license in the manner now prescribed by law for incompetency or misconduct. (b) Any person in charge of the navigation of a vessel other than a licensed officer shaU be liable to a penalty of five hundred dollars. (c) The owner of a vessel (including any corporate officer of a corporation owning the vessel) actually on board shall be liable to a penalty of five hundred dollars, unless the violation of regulations shall have occurred without his knowledge. (d) Any other person shall be liable to a penalty of two hundred and fifty dollars. The Secretary of Commerce and Labor is hereby authorized and empow- ered to mitigate or remit any penalty herein provided for in the manner pre- scribed by law for the mitigation or remission of penalties for violation of the navigation laws. ^ — (35 Stat., 69, chap. 151.) See section 4233, Revised Statutes, and laws noted thereunder. The designation of the ' ' Secretary of Commerce and Labor" was changed to "Secretary of Labor" by act of March 4, 1913 (37 Stat., 73G). [1908, May 13. Commissioned officers, pay and allowances.] Hereafter all commissioned officers of the active list of the Navy shall receive the same pay and allowances according to rank and length of service. — (35 Stat., 127, chap. 166.) This provision was repeated in identical lan- guage in the act of August 29, 1916 (39 Stat., 581). In the act of May 13, 19()8_, it was restricted by a subsequent provision (35 Stat., 128), that "the pay and allow- ances of chaplains in the Navy shall in no case exceed that provided for lieutenant- commanders." This limitation was omit- ted in the act of August 29, 1916, the effect of which was to give chaplains the same pay and allowances as other officers of the Navy of corresponding rank and length of service. (See note to section 1556, Revised Statutes.) As to allowances of officers of the Navy, see section 1558, Revised Statutes, and note thereto. For laws and decisions relating to pay of officers of the Navy, see section 1556, Revised Statutes, and note thereto. For laws and decisions relating to pay and allowances of officers of the Marine Corps, see section 1612, Revised Statutes, and note thereto. [1908, May 13. Annual pay of grades, commissioned officers.] The annual pay of each grade shall be as follows: For Achniral, thirteen thousand five hundred dollars; rear-admiral, first nine, eight thousand dollars; rear-admiral, second nine, or commodore, six thousand dollars; captain, four thousand dol- lars; commander, three thousand five hundred dollars; lieutenant-commander, three thousand dollars; lieutenant, two thousand four hundred dollars; lieu- tenant, junior grade, two thousand dollars; ensign, one thousand seven hundred dollars.— (35 Stat., 127-128, chap. 166.) See note to section 1556, Revised Statutes. [1908, May 13. Longevity pay, commissioned officers, maximum pay of grades.] There shall be allowed and paid to each commissioned officer below 1301 May 13, 1908. Pi. 3. STATUTES AT LARGE. the rank of rear-admiral ten per centum of his current yearly pay for each term of live years service in tlie Army, Navy and Marine Corps. The total amount of such increase for length of service shall in no case exceed forty per centum on the yearly pay of the grade as provided by law: Provided, That the annual pay of captain shall not exceed five thousand dollars per annum ; of commander, four thousand five hundred dollars per annum; and of lieutenant-commander, four thousand dollars per annum. — (35 Stat., 128, chap. 166.) See note to section 1556, Re\-ised Statutes. [1908, May 13. Additional pay for sea duty and shore duty beyond seas.] All oilicers on sea duty anil all officers on shore duty beyond the continental limits of the United States shall while so serving receive ten per centum addi- tional of their salaries and increase as above provided, and such increase shall commence from the date of reporting for duty on board ship or the date of sailing from the United States for shore duty beyond the seas or to join a ship in foreign waters. — (35 Stat., 128, chap. 166.) See notes to sections 1556 and 1571, Revised Statutes; and see section 1588, Revised Statutes, and note thereto, as to pay of retired officers. [1908, May 13. Pay of midshipmen.] The pay of midshipmen shall here- after be six hundred dollars per annum while at the Naval Academy, and one thousand four hundred dollars per annum after graduation from the Naval Academy.— (35 Stat., 128, chap. 166.) See note to section 1556, Revised Statutes; and see note to section 1520, Revised Statutes, as to academic course of midshii^men. [1908, May 13. Pay of warrant officers and mates.] The pay of all warrant officers and mates is hereby increased twenty-five per centum, and all pay- masters' clerks shall, while on duty, receive the same pay and allowances as warrant officers of like length of service in the Navy. — (35 Stat., 128, chap. 166.) See note to section 1556, Revised Statues. The grade of paymasters' clerks was abol- ished and the grades of acting pay clerk. pay clerk, and chief pay clerk created, by act of March 3, 1915 (38 Stat., 942), noted under section 1386, Revised Statutes. [1908, May 13. Pay of enlisted men.] The pay of all active and retired enlisted men of the Navy is hereby increased ten per centum. — (35 Stat., 128, chap. 166.) See note to section 1569, Revised Statutes. [1908, May 13. Chiefs of bureaus.] That the pay and allowances of chiefs of bureaus in the Navy Department shall be the highest pay of the grade to which they belong, and not below that of rear-admiral of the lower nine. — (35 Stat., 128^^ chap. 166.) By act of July 1, 1918 (40 Stat., 717), chiefs of bureaus in the Navy Department are to receive the same pay and allowances as chiefs of bureaus in the War Department. [1908, May 13. Pay of chaplains.] That the pay and allowances of chap- lains in the Navy shall in no case exceed that provided for lieutenant-com- manders.— (35 Stat., 128, chap. 166.) See notes to sections 421 and 1565, Revised Statutes. 1302 Pt. 3. STATUTES AT LARGE. May 13, 1908. This provision was superseded by the act of August 29, 1916 (39 Stat., 581), which re- enacted the first clause of this act as above set forth, without any limitation upon the pay and allowances of chaplains. See note to section 1556, Revised Statutes. [1908, May 13. Additional pay allowed aids.] Aids to rear-admirals embraced in the nine lower numbers of that grade shall each receive one hundred and fifty dollars additional per annum, and aids to all other rear-admirals, two hundred dollars additional per annum each. — (35 Stat., 128, chap. 16G.) See note to section 1556, Re\"ised Statutes, "Additional pay for special duty." [1908, May 13. Retirement of officers, 30 years' service.] Wlien an officer of the Nav}" has been thirty years in the service, he may, upon his own applica- tion, in the discretion of the President, be retired from active service and placed upon the retired list with three-fourths of the highest pay of his grade. — (35 Stat., 128, chap. 166.) By act of May 30, 1908 (35 Stat., 501), it was provided that "in computing the pay of retired officers of the Navy, the ten per cent additional pay allowed for sea duty or for shore duty beyond the continental limits of the United States shall not be included, and the pay of commodore shall be the same in all respects as that of rear- admiral, second nine." [1908, May 13. Chief of bureau, subsequently retired.] That any officer of the Navy who is now serving or shall hereafter serve as chief of a bureau in the Navy Department, and shall subsequently be retired, shall be retired with the rank, pay and allowances authorized by law for the retirement of such bureau chief.— (35 Stat., 128, chap. 166.) See note to section 421, Revised Statutes, under "VI. Retirement of Chiefs of Bu- reaus," subheading, "Rank on retirement [1908, May 13. Pay of officers and men on retired list.] The pay of all com- missioned, warrant and appointed officers and enlisted men of the Navy now on the retired list shall be based on the pay, as herein provided for, of commis- sioned, warrant and api^ointed officers and enlisted men of corresponding rank and service on the active list. — -(35 Stat., 128, chap. 166.) See generally, sections 1443-1465, Revised Statutes, as to retirement of officers, and sections 1588-1595, Revised Statutes, as to pay and allowances of retired officers. As to retired officers, Marine Corps, see section 1622, Re\ised Statutes, and note thereto. of former bureau chief who has returned to general 8er\ice. ' ' See sections 1588-1595, Revised Statutes, and notes thereto, as to pay of retired officers. See section 1569, Revised Statutes, as to pay of enlisted men. See act of May 30, 1908 (35 Stat., 501), modi- fying this provision, quoted above under "Retirement of officers, 30 years' service." [1908, May 13. Pay to continue until changed by Congress.] All pay herein provided shall remain in force until changed by Act of Congress. — (35 Stat., 128, chap. 166.) See note to section 1569, Re\'ised Statutes, as to effect of this provision. [1908, May 13. Present pay not reduced.] Nothing herein shall be con- strued so as to reduce the pay or allowances now authorized by law for any commissioned, warrant or appointed officer or any enhsted man of the active or retired lists of the Navy, and all laws inconsistent with this provision are here- by repealed.— (35 Stat., 128, chap. 166.) [1908, May 13. Nurse corps, female.] The nurse corps (female) of the United States Navy is hereby established, and shall consist of one superintend- 1303 May 13, 1908. P t. 3. STATUTES AT LARGE. out, to be nppointed by the Secretiiiy of the Navy, who shall be a graduate of a hospital training school having a course of instruction of not less than two years, whose term of office may be terminated at his discretion, and of as many chief nurses, nurses, and reserve nurses as may be needed: Provided, That all nurses in the nurse corps shall be appointed or removed by the Surgeon-General, with the approval of the Secretary of the Navy, and that they shall be graduates of hospital training schools having a course of instruction not less than two years. The appointment of superintendent, chief nurses, nurses, and reserve nurses shall be subject to an examination as to their professional, moral, mental, and physical fitness, and that they shall be eligible for duty at naval hospitals and on board of hospital and ambulance ships and for such special duty as may be deemed necessary by the Surgeon-General of the Nav}'^. Reserve nurses may be assigned to active duty when the necessities of the service demand, and when on such duty shall receive the pay and allowances of nurses: Provided^ That they shall receive no compensation except when on active duty. The superintendent, chief nurses, and nurses shall respectively receive the same pay, allowances, emoluments, and privileges as are now or may hereafter be pro- vided by or in pursuance of law for the nurse corps (female) of the Army. — (35 Stat., 146, chap. 166.) See act of August 29, 1916 (39 Stat., 587-592), creating a "Naval Reserve Force." See note to section 1556, Re\'ised Statutes, as to pay and allowances of nurses. [1908, May 13. Property returns, storekeeper at Naval Academy.] That hereafter the storekeeper at the Naval Academy, authorized by section fifteen hundred and twenty-seven of the Revised Statutes, shall render quarterly returns of property to the Chief of the Bureau of Supplies and Accounts, under such regulations as the Secretary of the Navy may prescribe. A full report shall be made annually of receipts and expenditures by the Chief of the Bureau of Supplies and Accounts to the Secretary of the Navy: And provided further, That an inspection of the storekeeper's accounts shall be made quarterly by the general inspector of the Pay Corps, with such recommendation as he may deem necessary, to the Chief of the Bureau of Supplies and Accounts. — (35 Stat., 153, chap. 166.) See note to section 1527, Re\ised Statutes. The designation of the "Pay Corps" was changed to "Supply Corps" by act of July 11, 1919 (41 Stat., 147). • [1908, May 13. Navy bands not to compete with civilians.] Navy bands or members thereof, other tlian the United States Naval Academy band at Annapolis, Maryland, shall not receive remuneration for furnishing music outside the limits of military posts, when the furnishing of such music places them in competition with local civilian musicians. — (35 Stat., 153, chap. 166.) See act of Junes, 1916, section .35 (39 Stat., 188), as to restrictions upon enlisted men, gen- erally, competing with civilians; and act August 29, 1916 (39 Stat., 612), as to restrictions upon Marine Band. See note to section 1511, Revised Statutes, as to Naval Academy band. See section 1613, Revised Statutes, and note thereto, as to Marine Band. "Navy bands" not inclusive of Marine Band. — This enactment was held not appli- cable to the Marine Band, in an opinion of the Attorney General dated November 9, 1908. (27 Op. Atty. Gen., 90. See sec. 1613, R. S.) [1908, May 13. Monitors, naming of.] So much of the act entitled "An act making appropriations for the naval service for the fiscal year endmg June 1304 PL 3. STATUTES AT LARGE. May 27, 1908. thirtieth, eighteen hundred and ninetj^-nine, and for other purposes," approved May fourth, eighteen hundred and ninety-eight, as provides that monitors owned by the United States shall be named for the States, and shall not be named for any city, place, or person until the names of the States shall have been exhausted, is hereby repealed, and monitors now owned by the United States or hereafter built may be named as the President may direct. — (35 Stat., 159, chap. 166.) See act of May 4, 1898 (30 Stat., 390), and see note to section 1531, Re\T.sed Statutes. [1908, May 20. Gifts to vessels; acceptance and care of; appropriation chargeable.] That the Secretary of the Navy is hereby authorized to accept and care for such gifts in the form of silver, colors, books, or other articles of equipment or furniture as, in accordance with custom, may be presented to vessels of the Navy by States, municipalities, or othei-wise. The necessary expense incident to the care and preservation of gifts of this character which have been or may hereafter be accepted shall be defrayed from the appropriation "equipment of vessels." — (35 Stat., 171, chap. 182.) See section 418, Re\ised Statutes, and note thereto. [1908, May 22, sec. 4. Annual report, traveling expenses of employees.] It shall be the duty of the head of each Executive Department and other Government establishment at Washington to submit to Congress at the begin- ning of each regular session a statement showing in detail what officers or employees (other than special agents, inspectors, or employees, who in the discharge of their regular duties are required to constantly travel) of such Executive Department or other Government establishment have traveled on official business from Washington to points outside of the District of Colunbia during the preceding fiscal year, giving in each case the full title of the official or employee, the destination or destinations of such travel, the business or work on account of which the same was made, and the total expense to the United States charged in each case.^(35 Stat., 244, chap. 186.) See section 429, Re\ised Statutes, and note thereto. [1908, May 27. Deceased persons, naval service; settlement of accounts; payment of funeral expenses to claimants.] Hereafter, in the settlement of the accoimts of deceased officers or enlisted men of the Navy and IMarine Corps, whei*e the amount due the decedent's estate is less than five hundred dollars and no demand is presented by a duly appointed legal representative of the estate, the accounting officers may allow the amount found due to the decedent's widow or legal heirs in the following order of precedence: First, to the widow; second, if the decedent left no widow, or widow be dead at time of settlement, then to the children or their issue, per stirpes; third, if no widow or descendants, then to the father and mother in ecjual parts, provided father has not abandoned the support of his family, in which case to the mother alone; fourth, if either the father or mother be dead, then to the one surviving; fifth, if there be no widow, child, father, or mother at the date of settlement, then to the brothers and sisters and children of deceased brothers and sisters, per stirpes: Provided, That this Act shall not be so construed as to prevent payment from the amount 1305 May 27, 1908. Pt. 3. STATUTES AT LARGE. See section 1587, Revised Statutes, as to funeral expenses. due the decedent's estate of funeral expenses, provided a claim therefor is pre- sented by the person or persons who actually paid the same before settlement by the accounting ofTicers. — (35 Stat., 373, chap. 200.) See laws noted under section 289, Re^d8ed Statutes. See act of I\Iarch 29, 1918 (40 Stat., 499), as to disposition of money and effects of de- ceased jicrsons in naval service. [1908, May 27. Navy mail clerks and assistants.] That enlisted men of the United States Navy may, upon selection by the Secretary of the Navy, be designated by the Post-Office Department as "navy mail clerks" and "assistant navy mail clerks," who shall be authorized to receive and open all pouches and sacks of mail addressed to naval vessels, to make proper delivery of such mail, to receive matter for transmission in the mails, to receipt for registered matter (keeping an accurate record thereof), to keep and have for sale an adequate supply of postage stamps, to make up and dispatch mails, and other postal duties as may be authorized by the Postmaster-General, all in accordance with such rules and regulations as may be prescribed by the commanding officer of the vessel or of the squadron to which the vessel is attached. Each mail clerk and assistant mail clerk shall take the oath of office prescribed for employees of the postal service and shall give bond to the United States in the sum of one thousand dollars for the faithful performance of his duties as such clerk, and shall be amenable in all respects to naval discipline, except that, as to their duties as such clerks, the commanding officers of the vessels upon which they are stationed shall require them to be governed by the postal laws and regulations of the United States. Whenever necessity arises therefor any assistant mail clerk may be required by the commanding officer of the vessel upon which he is stationed or of the squadron to which said vessel is attached to perform the duties of mail clerk. They shall receive as compensation for such services from the Navy Department, in addition to that paid them of the grade to which they are assigned, such sum in the case of mail clerks not to exceed five hundred dollars per annum, and in that of assistant mail clerks not to exceed three hundred dollars per annum, as may be determined and allowed by the Navy Department.— (35 Stat., 417-418, chap. 206.) Amendments to this pro\'ision were made by- various subsequent enactments, as follows: "That every Navy mail clerk and assist- ant Navy mail clerk shall give bond to the United States in such penal sum as the Postmaster General may deem sufficient for the faithful performance of his duties as such clerk." (Act Aug. 24, 1912, sec. 3, 37 Stat., 554, chap. 389.) "That the provision in the Act making appropriations for the eer\ace of the Post Office Department, approved May twenty- seventh, nineteen hundi-ed and eight, authorizing the designation of enlisted men of the Navy ai navy mail clerks and assistant navy mail clerks, be amended to include in such designation enlisted men of the Marine Corps, by the insertion in the said provision, after the words 'United States Navy, ' the words ' or Marine Corps. ' ' ' (Act of Aug. 24, 1912, sec. 11, 37 Stat., 560, chap. 389.) "That the provisions of the Act of May twenty-seventh, nineteen hundred and eight (Thirty -fifth Statutes, pages four huntlred and seventeen and four hundred and eighteen), as amended by the Act of August twenty-fourth, nineteen hundred and twelve (Thirty-seventh Statutes, page five hundred and sixty), are hereby ex- tended to authorize the designation of en- listed men of the Navy or Marine Corps as Navy mail clerks and assistant Navy mail clerks with expeditionary forces on shore." (Act Mar. 4, 1917, 39 Stat., 1188, chap. 180.) "That the provisions of the Act of May twenty-seventh, nineteen hundred and eight (Tliirty-fifth Statutes, pages four hundred and seventeen and four hundred and eighteen), as amended by the Act of August twenty-fourth, nineteen hundred and twelve (Thirty-seventh Statutes, page five hunderd and sixty), and as amended by the Act of March foiu'th, nineteen hun- 1306 PL 3. STATUTES AT LARGE. May 30, 1908. dred and seventeea (Thirty -ninth Statutes, page eleven hundred and eighty-eight), are hereby extended to authorize the designa- tion of enlisted men of the Navy or Marine Corps as Navy mail clerks and assistant Navy mail clerks for duty at stations and shore establishments under the jurisdiction of the Navy Department where the services of such mail clerks and assistant mail clerks are necessarv." (Act July 1, 1918, 40 Stat., 718, chap. 114.) See note to sections 391-392, Revised Statutes, as to oaths of mail clerks and assistants; see note to section 1383, Revised Statutes, on general subject of bonds; see note to section 1569, Revised Statutes, under "8. Addi- tional pay for special duty, etc.;" and see note to section 236, Revised Statutes, under V, (A), "Secretary of the Navy," subheading, "The designation of Navy mail clerks." See also section 388, Re- Adsed Statutes, and note thereto. By section 403, Revised Statutes, it is provided that "all bonds taken * * * by the Post-Office Department shall be made to * * * the United States of America." [1908, May 28, sec. 2. Alaska coal; preference right to purchase for Army and Navy.] The the United States shall, at all times, have the preference right to purchase so much of the product of any mine or mines opened upon the lands sold under the provisions of this Act as may be necessary for the use of the Army and Navy, and at such reasonable and remunerative price as may be fixed by the President; but the producers of any coal so purchsed who may be dissatisfied with the price thus fixed shall have the right to prosecute suits against the United States in the Court of Claims for the recovery of any addi- tional sum or sums they may claiin as justly due upon such purchase. — (35 Stat., 424, chap. 211.) See section 3711, Revised Statutes, and act of October 20, 1914 (38 Stat., 741). This section was part of an act "to encourage the development of coal deposits in the Territory of Alaska." [1908, May 30. Pay of retired officers, Navy.] In computing the pay of retired officers of the Navy, the ten per cent additional pay allowed for sea duty •or for shore duty beyond the continental limits of the United States shall not be included, and the pay of commodore shall be the same in all respects as that of rear-admiral, second nine. — (35 Stat., 501, chap. 227.) See act of May 13, 1908 (35 Stat., 128), and section 1588, Re\dsed Statutes. [1908, May 30. Estimates of employees to be paid from lump sum appro- priations; specific authorization required.] The Secretary of the Navy is authorized to employ and pay, during the fiscal year nineteen hundred and nine, out of the lump appropriations of the several bureaus of the Navy Department, such classified civil-service employees as may be necessary to properly perform the clerical, drafting, inspection, messenger, and other classified work at the several navy-yards and stations: Provided, That the Secretary of the Navy shall submit to Congress detailed estimates for all such classified civil-service employees that may be required to be employed during the fiscal year nineteen hundred and ten, and annually thereafter, and no such classified civil-service employees shall be employed during the fiscal year nineteen hundred and ten, or in any subsequent fiscal year, and paid from such lump appropriations except under specific authorization granted by law from year to 3^ear based upon estimates as herein required.— (35 Stat., 505, chap. 227.) See notes to sections 416 and 1545, Revised Statutes; see also acts of August 5, 1882, section 4 (22 Stat., 255-256), and March 3, 1909 (35 Stat., 754-755). The amount to be expended from lump appro- priations for personal services at navy yards and stations is limited by provisos m the annual naval appropriation acts under appropriations for the various bu- reaus of the Navy Department. (See act of June4, 1920, 41 Stat., 816-820, 823, 826, 827.) Authority for employment of personal services in various bureaus of the Navy Depart- ment from lump appropriations for the naval service is contained in the annual legislative, executive, and judicial appro- priation acts. (See act Mar. 3, 1921, 41 Stat., 1285, 1286, 1287.) 54641°— 22- -83 1307 Feb. 16, 1909. Pi. 3. STATUTES AT LARGE. Naval Courts. [1909, Feb. 16. Deck courts, jurisdiction, by whom ordered.] That courts for the trial of eiihsted men in tlie Navy and Marine Corps for minor offenses now triahlc hy summary court-martial ma}" be ordered by the commanding officer of a naval vessel, by the commandant of a navy-yard or station, by a commanding officer of marines, or by higher naval authority. — (35 Stat., 621, chap. 131.) Ab to designation of the courts herein provided for, as "deck courts," see section 2 of this act, set forth below. Amendment to this section was made by act of August 29, 1916 (39 Stat., 586), which 8ro^^ded that "hereafter all officers of the avy and Marine Corps "who are author- ized to order either general or summary courts-martial may order deck courts upon enlisted men under their command," and that, when empowered by the Secretary of the Navy to order emnmary courts- martial, "the commanding officer of a naval hospital or hospital ship shall be empowered to order such courts and deck courts * * * upon all enlisted men of the naval service attached thereto, whether for duty or as patients." (As to officers authorized to order general and summary courts-martial, see sec. 1624, R. S., arts. 26 and 38, and notes thereto. As to juris- diction of summary courts-martial, see sec. 1624, R. S., art. 26.) See section 7 of this act, set forth below, as to objection by accused to trial by deck court. The act of August 29, 1916 (39 Stat., 586), fur- ther provided that "when a force of ma- rines is embarked on a naval vessel, or vessels, as a separate organization, not a part of the authorized complement thereof, the authority and powers of the officers of such separate organization of marines shall be the same as though such organiza- tion were serving at a navy yard on shore, but nothing herein shall be construed as impairing the paramount authority of the commanding officer of any naval vessel over the vessel under his command and all persons embarked thereon." [1909, Feb. 16, sec. 2. Constitution of deck courts; oaths; punishments.] That such courts shall be known as " deck courts," and shall consist of one com- missioned officer only, who, while serving in such capacity shall have power to administer oaths, to hear and determine cases, and to impose, in whole or in- part, the punishments prescribed by article thirty of the Articles for the Govern- ment of the Navy: Provided, That in no case shall such courts adjudge dis- charge from the service or adjudge confinement of forfeiture of pay for a longer period than twenty days. — '(35 Stat., 621, chap. 131.) For "article thirty of the Articles for the Gov- ernment of the Navy," see section 1624, Re\'i8ed Statutes, article 30; and see note thereto for amendatory statutes. By act of October 6, 1917 (40 Stat., 393-394), commissioned officers of certain auxiliary naval forces were authorized to serve on naval courts-martial and deck courts in time of war or emergency. (See that act and amendments noted thereunder.) See section 183, Re^dsed Statutes, and note thereto, as to authority of naval officers to administer oaths. [1909, Feb. 16, sec. 3. Recorder of deck court.] That any person in the Navy under command of the officer by whose order a deck court is convened may be detailed to act as recorder thereof. — (35 Stat., 621, chap. 131.) [1909, Feb. 16, sec. 4. Deck courts, reviewing authority, mitigation of sentence.] That the officer within whose command a deck court is sitting shall have full power as reviewing authority to remit or mitigate, but not to commute, any sentence imposed by such court; but no sentence of a deck court shall be carried into effect until it shall have been so approved or miti- gated, and such officer shall have power to pardon any punishment such court may adjudge. — (35 Stat., 621, chap. 131.) See notes to section 1624, Revised Statutes, under articles 32-33, and 53-54; see also note to Constitution, Article II, section 2, clause 1, under "III. Power to pardon offenses against United States;" and see sections 6, 9, and 17 of this act, set forth below. 1308 Naval Courts. Ft. 3. STATUTES AT LARGE. Feb. 16, 1909. [1909, Feb. 16, sec. 5. Deck courts, regulations of the President.] That the courts hereby authorized shall be governed in all details of their constitu- tion, powers, and procedure, except as herein provided, by such rules and regulations as the President may prescribe. — (.35 Stat., 621, chap. 131.) See sections 161 and 1547, Revised Statutes, and notes thereto, on general subject of regulations. See section 1624, Revised Statutes, articles 34 and 42-45, as to the proceedings cf summary and general courts-martial. [1909, Feb. 16, sec. 6. Records of deck courts; review by Judge Advo- cate General ; action of Secretary.] That the records of the proceedings of the courts hereby authorized shall contain such matters only as are necessary to enable the reviewing authorities to act intelligently thereon, except that if the party accused demands it within thirty days after the decision of the deck court shall become known to him, the entire record or so much as he desires shall be sent to the reviewing authority. Such records, after action thereon by the convening authority, shall "be forwarded directly to, and shall be filed in, the Office of the Judge-Advocate-General of the Navy, where they shall be reviewed, and, when necessary, submitted to the Secretary of the Navy for his action.— (35 Stat., 621, chap. 131.) See section 1624, Revised Statutes, articles 34 and 52, as to records of courts-martial; and see laws noted below, under section 14 of this act, aa to the disposal of useless papers. See act of June 8, 1880 (21 Stat., 164), as to the duties of the Judge Advocate General. See sections 4, 9, and 17 of this act, as to execution of deck court sentences. [1909, Feb. 16, sec. 7. Objection to trial by deck court.] That no person who objects thereto shall be brought to trial before a deck court. Where such objection is made by the person accused, trial shall be ordered by summary or by general court-martial, as may be appropriate. — (35 Stat., 621, chap. 131.) As to jurisdiction of deck courts, see section 1, of this act, set forth above; as to summary and general courts-martial, see section 1624, Revised Statutes, articles 26 and 38. [1909, Feb. 16, sec. 8. Punishments by summary courts-martial, etc. ; use of irons.] That the courts authorized to impose the punishments prescribed by article thirty of the Articles for the Government of the Navy may adjudge either a part or the whole, as may be appropriate, of any one of the punish- ments therein enumerated : Provided^ That the use of irons, single or double, is hereby abolished, except for the purpose of safe custody or when part of a sentence imposed by a general court-martial. — (35 Stat., 621, chap. 131.) Article thirty of the Articles for the Govern- ment of the Navy, which is modified by this section, is article 30 of section 1624, Revised Statutes, prescribing punishments which may be imposed by simimary courts- martial. By article 35 of section 1624, Revised Statutes, general courts-martial were empowered to adjudge any punish- ment which a siunmary court-martial is authorized to inflict; by section 2 of this act, set forth above, deck courts were also authorized to impose such punishments, with certain limitations. The use of irons in the Navy had previously been restricted by a clause in the act of May 13, 1908 (.35 Stat., 132), superseded bv this section. [1909, Feb. 16, sec. 9. Secretary of the Navy; action on proceedings and sentences of courts-martial.] That the Secretary of the Navy may set aside the proceedings or remit or mitigate, in whole or in part, the sentence imposed by any naval court-martial convened by his order or by that of any officer of the Navy or Marine Corps. — (35 Stat., 621, chap. 131.) 1309 Feb. 16, 1909. Pt. 3. STATUTES AT LARGE. Naval Courts. See notes to section 1624, Revised Statutes, under articles 32-33 and 53-54; see also act of June 8, 1880 (21 Stat., 164), as to review of court-martial proceedings by the Judge Advocate Cieneral; and see sections 4, 6, and 17 of this act as to sentences of deck courts. See act of April 9, 1906, section 3 (34 Stat., 104-105), as to review of courts-martial in the cases of midshipmen. [1909, Feb. 16, sec. 10. General courts-martial, by whom convened.] That general courts-martial may be convened by the President, by the Secretary of the Navy, by the commander in chief of a fleet or squadron, and by the com- manding officer of any naval station beyond the continental limits of the United States.— (35 Stat., 621, chap. 131.) This section superseded article 38 of section 1624, Revised Statutes; see note to that article for later law on the subject. [1909, Feb. 16, sec. 11. Witnesses, naval courts-martial and courts of in- quiry ; compulsory process.] That a naval court-martial or court of inquiry shall have power to issue like process to compel witnesses to appear and testify which United States courts of criminal jurisdiction within the State, Territory, or District where such naval court shall be ordered to sit may lawfully issue. — (35 Stat., 621-622, chap. 131.) Revised Statutes, and notes thereto; and see note to Constitution, Sixth Amendment, under "VII. Compulsory process for ob- taining witnesses. ' ' See next section of this act, set forth below, restricting operation of this section; and see section 16, below, as to depositions. See notes to section 1624, Revised Statutes, articles 42 and 57; see also sections 877-881, [1909, Feb. 16, sec. 12. Refusal of witness to appear or testify; punishment; fees; self-incrimination.] That any person duly subpoenaed to appear as a witness before a general court-martial or court of inquiry of the Navy, who willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or produce documentary evidence, which such person may have been legally subpoenaed to produce, shall be deemed guilty of a misdemeanor, for which such person shall be punished on information in the district court of the United States; and it shall be the duty of the United States District Attorney, on the certification of the facts to him by such naval court to file an information against and prosecute the persons so offending, and the punishment of such person, on conviction, shall be a fine of not more than five hundred dollars or imprisonment not to exceed six months, or both, at the discretion of the court: Provided, That this shall not apply to persons residing beyond the State, Terri- tory, or District in which such naval court is held, and that the fees of such witnesses and his mileage at the rates provided for witnesses in the United States district court for said State, Territory, or District shall be duly paid or tendered said witness, such amounts to be paid by the Bureau of Supplies and Accounts out of the appropriation for compensation of witnesses: Provided further, That no witness shall be compelled to incriminate himself or to answer any question which may tend to incriminate or degrade him. — (35 Stat., 622, chap. 131.) As to witness fees, see sections 848-851, Revised Statutes, and notes thereto. As to refusal of witness to testify, see articles 42 and 57, section 1624, Revised Statutes. As to protection of witness against self-incrimi- nation, see note to Constitution, Fifth Amendment, under "III. Compelling per- son to be \\'itness against himself." As to depositions of witnesses, see section 16 of this act, set forth below. [1909, Feb. 16, sec. 13. Naval prisoners, allowances to; clothing and gratuity on discharge.] That persons confuied in prisons in pursuance of the sentence 1310 Naval Courts. Pt. 3. STATUTES AT LARGE. Feb. 16, 1909. of a naval court-martial shall, during such confinement, be allowed a reason- able sum, not to exceed three dollars per month, for necessary prison expenses, and shall upon discharge be furnished with suitable civilian clothing and paid a gratuity, not to exceed twenty-five dollars : Provided, That such allowances shall be made in amounts to be fixed by, and in the discretion of, the Secretary of the Navy and only in cases where the prisoners so discharged would otherwise be unprovided with suitable clothing or without funds to meet their immediate needs.— (35 Stat., 622, chap. 131.) See act of March 3, 1909 (35 Stat., 756), provid- ing for clothing and transportation to be furnished discharged naval prisoners. Prior to this enactment it was held by the Comptroller of the Treasury that naval prisoners under sentence of court-martial were entitled, prior to expiration of enlist- ment, to credit for pay coming due and not forfeited by the sentence of the court; but that after expiration of enlistment, al- though not then discharged, no pay could accrue or be credited to such prisoners. (See 9 Comp. Dec, 257, noted under sec. 1422, R. S., "Detention of enlisted men under court-martial sentence.") [1909, Feb. 16, sec. 14. Summary court-martial proceedings and record.] That section sixteen hundred and twenty-four, article thirty-four, Revised Statutes of the United States, is hereby amended as follows: "The proceedings of summary courts-martial shall be conducted with as much conciseness and precision as may be consistent with the ends of justice, and under such forms and rules as may be prescribed by the Secretary of the Navy, with the approval of the President, and all such proceedings shall be transmitted in the usual mode to the Navy Department, where they shall be kept on file for a period of two years from date of trial, after which time they may be destroyed in the discretion of the Secretary of the Navy." — (35 Stat., 622, chap. 131.) See note to section 1624, Revised Statutes, article 34; see also acts of June 8, 1880 (21 Stat. 164), and February 16, 1889 (25 Stat., 672), and notes thereunder. [1909, Feb. 16, sec. 15. Arrest of naval offenders.] That it shall be lawful for any civil officer having authority under the laws of the United States or of any State, Territory, or District to arrest offenders, to summarily arrest a deserter from the Navy or Marine Corps of the United States and deliver him into the custody of the naval authorities.— (35 Stat., 622, chap. 131.) See note to Constitution, Fourth Amendment, under "Arrest of military offenders;" and see section 1624, Revised Statutes, article 43, and note thereto. [1909, Feb. 16, sec. 16. Depositions of witnesses, naval courts.] That the depositions of witnesses may be taken on reasonable notice to the opposite party, and when duly authenticated, may be put in evidence before naval courts, except in capital cases and cases where the punishment may be imprisonment or confinement for more than one year as follows : First, depositions of civilian witnesses residing outside the State, Territory, or District in which a naval court is ordered to sit; second, depositions ot persons in the naval or military service stationed or residing outside the State, Territory, or District in which a naval court is ordered to sit, or who are under orders to go outside of such State, Territory, or District; third, where such naval court is convened on board a vessel of the United States, or at a naval station not within any State, Territory, or District of the United States, the depositions of witnesses may be taken and used as herein provided whenever such witnesses reside or are sta- tioned at such a distance from the place where said naval court is ordered to sit, 1311 Mar. 3, 1909. PL 3. STATUTES AT LARGE. or are about to go to such a distance as, in the judgment of the convening authority would render it impracticable to secure their personal attendance. — (35 Stat., 622-623, chap. 131.) See sections 868-874, Revised Statutes, and tion, Sixth Amendment, under "VI. Con- notes thereto; see also note to Constitu- frontin? witnesses. ' ' [1909, Feb. 16, sec. 17. Sentences, summary courts-martial and deck courts; execution of.] That all sentences of summary courts-martial may be carried into effect upon the approval of the senior ofTicer present, and all sentences of deck courts may be carried into effect upon approval of the convening authority or his successor in office. — (35 Stat., 623, chap. 131.) As to power of Secretary of the Navy over proceedings and sentences of courts- martial, see section 9 of this act, set forth above, and see references thereunder. This section is modified, as to sentences of summary courts-martial, by act of August 29, 1916 (39 Stat., 586); see note to article 32 of section 1624, Re\'ised Statutes. As to sentences of deck courts, see sections 4 and 6 of this act, set forth above. [1909, Feb. 16, sec. 18. Repeal of prior acts.] That all Acts or parts of Acts inconsistent herewith are hereby repealed. — (35 Stat., 623, chap. 131.) [1909, Mar. 3. Army ordnance property, sales to naval officers.] Articles of ordnance property may be sold by the Chief of Ordnance to officers of the Navy and Marine Corps, for their use in the public service, in the same manner as these articles are now sold to officers of the army. — (35 Stat., 751, chap. 252.) See act of August 24, 1912 (37 Stat,, 589), and laws noted thereunder. 1909, Mar. 3. Retirement for Civil-War service.] The provisions of the act approved June twenty-ninth, nineteen hundred and six, entitled "An act making appropriations for the naval service for the fiscal year ending June thirtieth, nineteen hundred and seven, and for other purposes," providing for the retirement in the next higher grade of officers of the navy who served during the civil war, shall not operate to deprive any officer of the navy who has been, or may be, retired, since the passage of that act, of the right to increased rank and pay to which, but for the passage of said act, he would have been entitled. — (35 Stat., 753, chap. 255.) See act of June 29, 1906 (34 Stat., 554), and act of March 3, 1899, section 11 (30 Stat., 1007). [1909, Mar. 3. Estimates for "Pay of the Navy."] The estimates for the support of the Navy shall hereafter show, under tlie head of Pay of the Navy, the sums allowed for pay of officers belonging to the line, to the several depart- ments of the staff, and to the retired list; the estimates to show under each head the amount allowed for pay proper, for increases due to longevity and foreign service, and for pay at sea rates to officers employed on shore ; togetlier with the total number of warrant and petty officers and seamen of the several grades and designations, including as to each class the amount allowed for pay proper and for longevity or service increases. The estimates shall include a list giving the rates of pay for all petty officers and other enlisted men of the Navy.— (35 Stat., 754, chap. 255.) An identical provision was contained in the act of May 13, 1908 (35 Stat., 129). [1909, Mar. 3. Pay and number of employees at navy yards and stations; annual report to Congress, etc.] That hereafter the rates of pay of the clerical, drafting, inspection, and messenger force at navy-yards and naval stations and 1312 PL 3. STATUTES AT LARGE. Mar. 3, 1909. other stations and offices under the Navy Department shall be paid from lump appropriations and shall be fixed by the Secretary of the Navy on a per annum or per diem basis as he may elect ; that the number may be increased or decreased at his option and shall be distributed at the various navy-yards and naval stations by the Secretary of the Navy to meet the needs of the naval service * * * ; that the total amount expended annually for pay for such clerical, drafting, inspection, and messenger force shall not exceed the amounts specifi- cally allowed by Congress under the several lump appropriations, and that the Secretary of the Navj^ shall each year, in the annual estimates, report to Con- gress the number of persons so employed, their duties, and the amount paid to each.— (35 Stat., 754-755, chap. 255.) The omitted portion of this enactment relates to leaves of absence allowed such employ- ees; for text thereof, and later laws relat- ing to such leaves of absence, see note to section 1545, Revised Statutes. The above provision was followed by a proviso in the following language: "That it shall be the duty of the Secretary of the Navy to submit to Congress at its next session, and for its considei-ation, a schedule of rates of compensation, annual or per diem, that should, in his judgment, be permanently fixed by law for clerical, inspection, and messenger service in navy-yards, naval stations, and purchasing pay offices,^ super- intending construction offices, and inspec- tion of engineering material; and in fixing such rates of compensation he shall have due regard for the rates usually paid for like services in the respective localities by employers other than the United States, and lie shall not recommend any rate exceeding that being paid by the United States at any such yards, stations, or offices prior to January first, nineteen hundred and nine." See act of July 16, 1862 (12 Stat., 587), provid- ing that the rates of wages of employees in navy-yards shall conform, as nearly as is consistent with the pubUc interest, with those of private establishments in the immediate vicinity. See section 429, Revised Statutes, and note thereto, as to reports required to be made by the Secretary of the Navy; and see act of May 30, 1908 (35 Stat., 505). [1909, Mar. 3. Preference for employment, navy yards and stations.] That persons employed in the clerical, drafting, and inspection force at navy-yards and stations discharged for lack of work or insufficiency of funds shall for one year thereafter be preferred for employment in such navy-yards and stations in the clerical, drafting, inspection, and messenger forces. — (35 Stat., 755, chap. 255.) See sections 1544 and 1754, Re\ised Statutes, and notes thereto. [1909, Mar. 3. Discharg-ed prisoners; transportation and clothing-.] That the Secretary of the Navy is hereafter authorized to transport to their homes or places of enlistment, as he may designate, all discharged naval prisoners; the expense of such transportation shall be paid out of any money that may be to the credit of prisoners when discharged; where there is no such money, the expense shall be paid out of money received from fines and forfeitures imposed by naval courts-martial: Provided further, That the Secretary of the Navy is hereby authorized to furnish naval prisoners upon discharge suitable civilian clothing in case, and only where, said discharged prisoners would otherwise be unprovided with suitable clothing to meet their immediate needs. — (35 Stat., 756, chap. 255.) See act of February 16, 1909, section 13 (35 Stat., 622); and see sections 3689 and 4809, Re- vised Statutes, and notes thereto. [1909, Mar. 3. Sale of stores to Navy and Marine Corps, and civilian em- ployees.] That hereafter such stores as the Secretary of the Navy may desig- nate may be procured and sold to officers and enlisted men of the Navy and 1313 Mar. 3, 1009. Pt. S. STATUTES AT LARGE. Marine Corps, also to civilian employees at naval stations be3'ond the continental limits of the United States and in Alaska, under such regulations as the Secre- tary of the Navy may prescribe. — (35 Stat., 768, chap. 255.) See note to eectious 418, 1135, and 1612, Re- vised Statutes; see also acts of June 24, 1910 (36 Stat., 619), and March 4, 1913 (37 Stat., 909); and see laws noted under act last cited. [1909, Mar. 3. Report to Congress, repairs made on vessels.] That hereafter it shall be the duty of the Secretary of the Navy to report to Congress at the beginning of each regular session thereof, in addition to the report directed to be made in the act of March second, nineteen hundred and seven, making appro- priations for the naval service for the fiscal year ending June thirtieth, nineteen hundred and eight, and for other purposes, a detailed statement showing the amount expended from each of the appropriations for the repair of every ship where such repairs exceed for any one ship the sum of two hundred thousand dollars in any one fiscal year. — (35 Stat., 769, chap. 255.) See act of March 2, 1907 (34 Stat., 1195), and see note to section 1538, Revised Statutes. See also section 429, Revised Statutes, and note thereto. [1909, Mar. 3. Warrant machinists, title changed to machinist; promotion to chief machinists.] The title of warrant machinist is hereby changed to machinist; and all machinists shall, after six years from date of warrant, be commissioned chief machinists, to rank with, but after, ensign, and shall, on promotion, have the same pay and allowances as are allowed chief boatswains, chief gunners, chief carpenters, and chief sailmakers, and no machinist shall be promoted until he shall have passed such examination before a board as the Secretary of the Navy may prescribe. — (35 Stat., 771, chap. 255.) See notes to sections 1405, 1556, 1588, and 1592, Revised Statutes. [1909, Mar. 3. Warrant officers, promotion not to reduce pay.] No warrant officer, heretofore or hereafter promoted six years from date of warrant, shall suffer a reduction in pay which, but for such promotion, would have been received by him. — (35 Stat., 771, chap. 255.) See notes to sections 1405, 1556, 1588, and 1592, Re\d8ed Statutes. [1909, Mar. 3. Commissioned warrant officers, appointment as ensigns.] That chief boatswains, chief gunners, and chief machinists shall be eligible for appointment to the grade of ensign under the restrictions imposed by law upon the appointment of boatswains, gunners, and warrant machinists to that grade. — (35 Stat., 771, chap. 255.) See notes to sections 1405 and 1491, Revised Statutes. [1909, Mar. 3. Naval Academy chapel, use of for memorials.] The crypt and window spaces of the United States Naval Academy chapel are to be used only for memorials to United States naval officers who have successfully com- manded a fleet or squadron in battle, or who have received or may receive the thanks of the Congress of the United States for conspicuously distinguished services in time of war, and no memorial shall be accepted for or installed in said crypt or window spaces until at least five years after the death of the officer in question : Provided, That nothing in this provision shall be considered as invalidating any agreement made by the present or any former superintendent 1314 PL 3. STATUTES AT LARGE. Mar. 4, 1909. of the Naval Academy, authorizing a memorial window in the old Naval Academy chapel to be transferred to the new Naval Academy chapel. — (.35 Stat., 773, chap. 25.5.) See act of March 4, 1921 (41 Stat., 1440). [1909, Mar. 3. Traveling expense claims, shortest usually traveled route.] Pay, ^Iarine Corps * * * That hereafter the settlement of all traveling expense claims, where the payment of such is authorized by existing law, and the determination of distances and of what constitutes the shortest usually traveled route in the meaning of laws relating to traveling allowances, shall accord to such rules as the Secretary of the Navy may prescribe. — (35 Stat., 774, chap. 255.) See sections 1566 and 1612, Re\'i8ed Statutes, and notes thereto. [1909, Mar. 3. Extra-duty pay, Marine Corps.] That hereafter extra-duty pay will not be allowed to enlisted men of the IVlarine Corps except when they are regularly detailed thereon by a written order of the commandant of the corps. — (35 Stat., 776, chap. 255.) See note to section 1612, Revised Statutes. [1909, Mar. 4, sec. 4. Estimates, form and arrangement of.] When esti- mates hereafter transmitted to the Treasury for submission to Congress do not in form and arrangement comply with the provisions of section four of the legislative, executive, and judicial appropriation Act, approved June twenty- second, nineteen hundred and six, they shall, under direction of the Secretary of the Treasury, be rearranged so as to comply with said requirements of law. — (35 Stat., 907, chap. 297.) See act of June 22, 1906, section 4 (34 Stat.. Revised Statutes, and act of August 23, 448-449); see also sections 430 and 36G0, 1912, section 9 (37 Stat., 415.) [1909, Mar. 4, sec. 7. Estimates; reduction; additional revenues required.] Immediately upon the receipt of the regular annual estimates of appropriations needed for the various branches of the Government it shall be the duty of the Secretary of the Treasury to estimate as nearly as may be the revenues of the Government for the ensuing fiscal year, and if the estimates for appropriations, including the estimated amount necessary to meet all continuing and perma- nent appropriations, shall exceed the estimated revenues the Secretary of the Treasury shall transmit the estimates to Congress as heretofore required by law and at once transmit a detailed statement of all of said estimates to the President, to the end that he may, in giving Congress information of the state of the Union and in recommending to their consideration such measures as he may judge necessary, advise the Congress how in his judgment the estimated appropriations could with least injury to the public service be reduced so as to bring the appropriations within the estimated revenues, or, if such reduction be not in his judgment practicable without undue injury to the public service, that he may recommend to Congress such loans or new taxes as maj^ be necessary to cover the deficiency. — (35 Stat., 1027, chap. 299.) See note to section 430, Re%-i8ed Statutes. [1909, Mar. 4, sec. 8. Disbursing clerks; temporary absence; substitute.] In case of the sickness or unavoidable absence of any disbursing clerk or dis- 1315 Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. bursing agent of any executive department, independent bureau, or office, in Washington, District of Columbia, he may, with the approval of the head of the department, independent bureau, or oilice, in which said disbursing clerk or agent is employed, authorize the clerk of highest grade employed therein to act in his place, and to discharge all the duties by law or regulations of such disbursing clerk or agent. The official bond given by the principal of the office shall be held to cover and apply to the acts of the person appointed to act in his place in such cases. Such acting officer shall, moreover, for the time being, be subject to all the liabilities and penalties prescribed by law for the official misconduct in like cases, of the disbursing clerk or disbursing agent, respectively, for whom he acts, and such acting officer shall be required by the head of the department, independent bureau, or office, to give bond to and in such sum as the disbursing clerk or disbursing agent may require. — (35 Stat., 1027, chap. 299.) See notes to sections 176 and 1383, Revised Statutes. [1909, Mar. 4, sec. 9. Expenses of unauthorized boards, commissions, etc.] That hereafter no part of the public moneys, or of any appropriation heretofore or hereafter made by Congress, shall be used for the payment of compensation or expenses of any commission, council, board, or other similar body, or any members thereof, or for expenses in connection with any work or the results of any work or action of any commission, council, board, or other similar body, unless the creation of the same shall be or shall have been authorized by law; nor shall there be employed by detail, hereafter or heretofore made, or other- wise personal services from any executive department or other government establishment in connection with any such commission, council, board, or other similar body. — (35 Stat., 1027, chap. 299.) See section 3681, Revised Statutes. [1909, Mar. 4. The Criminal Code.] That the penal laws of the United States be, and they hereby are, codified, revised, and amended, with title, chapters, headnotes, and sections, entitled, numbered, and to read as follows: — (35 Stat., 1088, chap. 321.) See section 1624, Revised Statutes, article 22, and note thereto. CRIMES. Chapter One. offenses against the existence of the government. Sec. 1. Treason. 2. Punishment of treason. 3. Misprision of treason. 4. Inciting or engaging in rebellion or insur- rection. 5. Criminal correspondence with foreign gov- ernments. Sec. 6. Seditious conspiracy. 7 . Recruiting soldiers or sailors to serve against the United States. 8. Enlistment to serve against the United States. Sec. 1. [Treason defined.] Whoever, owing allegiance to the United vStates, levies war agamst them or adheres to their enemies, giving them aid and comfort withm the United States or elsewhere, is guilty of treason. — (35 Stat., 1088; sec. 5331, R. S.) 1316 Criminal Code. Pt. 3. STATUTES AT LARGE. Mar. 4, 1909. wSec. 2. [Punishment of treason.] Whoever is convicted of treason shall suffer death; or, at the discretion of the court, shall be imprisoned not less than five years and fined not less than ten thousand dollars, to be levied on and collected out of any or all of his property, real and personal, of which he was the owner at the time of committing such treason, any sale or conveyance to the contrary notwithstanding; and every person so convicted of treason shall, moreover, be incapable of holding any office under the United States.— (35 Stat., 1088; sec. 5332, R. S.) Sec. 3. [Misprision of treason defined.] Whoever, owing allegiance to the United States and having knowledge of the commission of any treason agamst them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of mis- prision of treason and shall be imprisoned not more than seven years and fined not more than one thousand dollars. — (35 Stat., 1088; sec. 5333, R. S.) Sec. 4. [Inciting, etc., rebellion or insurrection.] Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be imprisoned not more than ten years, or fined not more than ten thousand dollars, or both; and shall, moreover, be incapable of holding any office under the United States.— (35 Stat., 1088; sec. 5334, R. S.) Sec. 5. [Criminal correspondence with foreign governments.] Every citizen of the United States, whether actually resident or abiding within the same, or in any place subject to the jurisdiction thereof, or in any foreign country, without the permission or authority of the Government, directly or indirectly, commences or carries on any verbal or written correspondence or intercourse with any foreign Government or any officer or agent thereof, with an intent to influence the measures or conduct of any foreign Government or of any officer or agent thereof in relation to any disputes or controversies with the United States or to defeat the measures of the Government of the United States; and every person, bemg a citizen of or resident within the United States or in any place subject to the jurisdiction thereof, and not duly authorized, counsels, advises, or assists in any such correspondence with such intent, shall be fined not more than five thousand dollars and imprisoned not more than three years; but nothing in this section shall be construed to abridge the right of a citizen to apply, hunself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects. — (35 Stat., 1088-1089; sec. 5335, R. S.) Sec. 6. [Seditious consplracy.] If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined not more than five thousand dollars or imprisoned not more than six years, or both. — -(35 Stat., 1089; sec. 5336, R. S.) 1317 Mar. 4, 1909. Pt. S. STATUTES AT LARGE. Criminal Code. excluded from readmission to the United States. By act of May 10, 1!>20 (41 Stat., 593-594), it was provided tliat any alien convicted of violating this section shall be deported and Sec. 7. [Recruiting for service against United States.] Whoever recruits soldiers or sailors within the United States, or in any place subject to the jurisdiction thereof, to engage hi armed hostility against the same, or opens within the United States, or in any place subject to the jurisdiction thereof, a recruiting station for the enlistment of such soldiers or sailors to serve m any manner in armed hostility against the United States, shall be fined not more than one thousand dollars and imprisoned not more than five years. — (35 Stat., 1089; sec. 5337, R. S.) Sec. 8. [Enlisting to serve against United States.] Every person enlisted or engaged within the United States or in any place subject to the juris- diction thereof, with intent to serve in armed hostility against the United States, shall be fined one hundred dollars and imprisoned not more than three years. — (35 Stat., 1089; sec. 5338, R. S.) Chapter Two. offenses against neutrality. Sec. 9. Accepting a foreign commission. 10. Enlisting in foreign service. 11. Arming vessels against people at peace with the United States. 12. Augmenting force of foreign vessel of war. Sec. 13. Military expeditions against people at peace with the United States. 14. Enforcement of foregoing provisions. 15. Compelling foreign vessels to dei^art. 18. Construction of this chapter. Sec. 9. [Accepting foreign commission to serve against friendly power.] Every citizen of the United States who, within the territory or juris- diction thereof, accepts and exercises a commission to serve a foreign prince, state, colony, district, or people, in war, by land or by sea, against any prince, state, colony, district, or people, with whom the United States are at peace, shall be fined not more than two thousand dollars and imprisoned not more than three years.— (35 Stat., 1089; sec. 5281, R. S.) Sec. 10. [Enlisting, etc., in foreign service within United States.] Whoever, within the territory or jurisdiction of the United States, enlists or enters himself, or hires or retains another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince. State, colony, district, or people as a soldier or as a marine or seaman on board of any vessel of war, letter of marque, or privateer shall be fined not more than $1,000 and imprisoned not more than three years: Provided, That this section shall not apply to citizens or subjects of any country engaged in war with a country with which the United States is at war, unless such citizen or subject of such foreign country shall hire or solicit a citizen of the United States to enlist or go beyond the juris- diction of the United States with intent to enlist or enter the service of a foreign country. Enlistments under this proviso shall be under regulations prescribed by the Secretary of War.— (35 Stat., 1089-1090; 40 Stat., 39-40; sec. 5282, R. S.) This section of the Penal Code was expressly amended and reenacted to read as above by act of May 7, 1917 (40 Stat., 39). 1318 Criminal Code. Pt.3. STATUTES AT LARGE. Mar. 4, 1909. Sec. 11. [Arming VESSELS AGAINST FRIENDLY POWERS.] Whoever, within the territory or jurisdiction of the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is con- cerned in the furnishing, fitting out, or arming of any vessel, with intent that such vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the sub- jects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, or whoever issues or delivers a commission within the territory or jurisdiction of the United States for any vessel, to the intent that she may be so employed, shall be fined not more than ten thousand dollars and imprisoned not more than three years. And every such vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores which may have been procured for the building and equipment thereof, shall be forfeited; one half to the use of the informer and the other half to the use of the United States. — (35 Stat., 1090; sec. 5283, R. S.) Sec. 12. [Augmenting force of foreign armed vessel.] Whoever, within the territory or jurisdiction of the United States, increases or augments, or procures to be increased or augmented, or knowingly is concerned in increas- ing or augmenting, the force of any ship of war, cruiser, or other armed vessel which, at the time of her arrival within the United States, was a ship of war, or cruiser, or armed vessel, in the service of any foreign prince or state, or of any colony, district, or people, or belonging to the subjects or citizens of any such prince or state, colony, district, or people, the same being at war with any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, by adding to the number of the guns of such vessel, or by changing those on board of her for guns of a larger caliber, or by adding thereto any equipment solely applicable to war, shall be fined not more than one thousand dollars and imprisoned not more than one year. — (35 Stat., 1090; Sec. 5285, R. S.) Sec. 13. [Organizing military or naval expedition against friendly POWER.] Whoever, within the territory or jurisdiction of the United States or of any of its possessions, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or wlio takes part in, any military or naval expedition or enterprise to be carried on from thence against the terri- tory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined not more than $3,000 or imprisoned not more than three years, or both. — (35 Stat., 1090; 40 Stat., 223; sec. 5286, R. S.) This section was expressly amended and reen- acted to read as above by act of June 15, 1917, section 8 (40 Stat., 223). By section 9 of said act (40 Stat., 223), it was provided "that the President may employ such part of the land or naval forces of the United States as he may deem necessary to carry out the purposes of this title. " Sec. 14. [Enforcement of foregoing sections; captures; use of naval forces.] The district courts shall take cognizance of all complaints, by whomsoever instituted, in cases of captures made within the waters of the United States, or ^vithin a marine league of the coasts or shores thereof. In 1319 Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. every case in which a vessel is fitted out and armed, or attempted to be fitted out and armed, or in which tlie force of any vessel of war, cruiser, or other armed vessel is increased or augmented, or in which any military expedition or enter- prise is begun or set on foot, contrary to the provisions and prohibitions of this chapter; and in every case of the capture of a vessel within the jurisdiction or protection of the United States as before defined; and in every case in which any process issuing out of any court of the United States is disobeyed or resisted by any person having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of any colony, district, or people, or of any subjects or citizens of any foreign prince or state, or of any colony, district, or people, it shall be lawful for the President, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, for the purpose of taking possession of and detaining any such vessel, with her prizes, if any, in order to enforce the execution of the prohibitions and penalties of this chapter, and the restoring of such prizes in the cases in which restoration shall be adjudged; and also for the purpose of preventing the carrying on of any such expedition or enterprise from the territory or jurisdiction of the United States against the territory or dominion of any foreign prince or state, or of any colony, dis- trict, or people with whom the United States are at peace. — (35 Stat., 1090; sec. 5287, R. S.) Sec. 15. [Compelling or preventing departure of vessels; use of NAVAL forces.] It shall be lawful for the President to employ such part of the land or naval forces of the United States, or of the militia thereof, as he may deem necessary to compel any foreign vessel to depart from the United States or any of its possessions in all cases in which, by the law of nations or the treaties of the United States, it ought not to remain, and to detain or prevent any foreign vessel from so departing in all cases in which, by the law of nations or the treaties of the United States, it is not entitled to depart. — (35 Stat., 1091 ; 40 Stat., 223; sec. 5288, R. S.) This section was expressly amended and reen- For other provisions of law on this subject, see acted to read as above by act of June 15, act of June 15, 1917 (40 Stat., 221-223). 1917, section 10 (40 Stat., 223). See also note to section 13 of the Criminal Code, set forth above. Sec. 18. [Construction of this chapter.] The provisions of this chapter shall not be construed to extend to any subject or citizen of any foreign prince, state, colony, district, or people who is transiently within the United States and enlists or enters himself on board of any vessel of war, letter of marque, or privateer, which at the time of its arrival within the United States was fitted and equipped as such, or hires or retains another subject or citizen of the same foreign prince, state, colony, district, or people who is transiently within the United States to enlist or enter himself to serve such foreign prince, state, colony, district, or people on board such vessel of war, letter of marque, or privateer, if the United States shall then be at peace with such foreign prince, state, colony, district, or people. Nor shall they be construed to prevent the prosecution or punishment of treason, or of any piracy defined by the laws of the United States.— (35 Stat., 1091; sec. 5291, R. S.) 1320 Criminal Code. Pt. 3. STATUTES AT LARGE. Mar. 4, 1909. Chapter Three, offenses against the elective franchise and civil rights of citizens. Sec. 22. Unlawful presence of troops at elections. 23. Intimidation of voters by officers, etc., of Army or Navy. 24. Officers of Army or Navy prescribing quali- fications of voters. Sec. 25. Officers, etc., of Army or Navy interfering with officers of election, etc. 26. Persons disqualified from holding office; when soldiers, etc., may vote. Sec. 22. [Unlawful presence of troops at polls.] Every officer of the Army or Navy, or other person in the civil, mihtary, or naval service of the United States, who orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held in any State, unless such force be necessary to repel armed enemies of the United States, shall be fined not more than five thousand dollars and im- prisoned not more than five years. — (35 Stat., 1092; sec. 5528, R. S.) Sec. 23. [Intimidating voters by army or navy officers, etc.] Every officer or other person in the military or naval service of the United States who, by force, threat, intimidation, order, advice, or otherwise, prevents, or attempts to prevent, any qualified voter of any State from freely exercising the right of suff"rage at any general or special election in such State shall be fined not more than five thousand dollars and imprisoned not more than five years.— (35 Stat., 1092; sec. 5529, R. S.) Sec. 24. [Army or navy officers prescribing qualifications of voters.] Every officer of the army or navy who prescribes or fixes, or attempts to prescribe or fix, whether by proclamation, order, or otherwise, the qualifi- cations of voters at any election in any vState shall be punished as provided in the preceding section. — (35 Stat., 1092; sec. 5530, R. S.) See section 2003, Revised Statutes. Sec. 25. [Interfering with election officers by army or navy OFFICERS, ETC.] Evcry officer or other person in the military or naval service of the United vStates who, by force, threat, mtimidation, order, ov otherwise, compels, or attempts to compel, any officer holding an election ui any State to receive a vote from a person not legally qualified to vote, or who imposes, or attempts to impose, any regulations for conducting any general or special elec- tion in a State different from those prescribed by law, or who interferes in any manner with any officer of an election in the discharge of his duty, shall be punished as provided in section twenty-three. — (35 Stat., 1092-1093; sec. 5531, R. S.) Sec. 26. [Additional punishment; when soldiers, etc., may vote.] Every person convicted of any offense defined in the four preceding sections shall, in addition to the punishment therein prescribed, be disqualified from holding any office of honor, profit, or trust under the United States; but nothing therein shall be construed to prevent any officer, soldier, sailor, or marine from exercising the right of suffrage in any election district to which he may belong, if otherwise qualified according to the laws of the State in which he offers to vote.— (35 Stat., 1093; sec. 5532, R. S.) See note to Constitution, Article I, section 8, clause 13, under "II. Freedom from State interference," subheading, "Poll taxes upon persons in Navy;" see also note to section 355, Revised Statutes, under "V. Jurisdiction of the United States," sub- heading, "Status of residents." 1321 Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. CiiAPTEii Four. Criminal Code. OFFENSES AGAINST THE OPERATIONS OF THE GOVERNMENT. Sec. 28. Forerinc; bids, public records, etc. 29. Foririiii,' deed?, powers of attorney, etc. 30. Having fofLrcd pai)ers in possession. 31. Fabe acknowledgments. 32. Falsely pretending to be United States officer. 34. False demand on fraudulent powder of attorney. 35. Making or presenting false claims [pur- chase of naval clothing]. 36. Embezzling arms, stores, etc. 37. Conspiracy to commit offense against the United States; all parties liable for acts of one. 38. Delaj-ing or defrauding captor or claimant, etc. , of prize property. 39. Bribery of United States officer. Sec. 40. Unlawfully taking or using papers relating to claims. 41. Persons interested not to act as agents of the Government. 42. Enticing desertions from the mfllitary or naval service. 43. Enticing away workmen. 44. Injuries to fortifications, harbor defenses, etc. 45. Unlawfully entering upon military reserva- tion, fort, etc. 46. Robbery or larceny of personal property of the United States. 47. Embezzling, stealing, etc., public property. 48. Receivers, etc., of stolen public property. 79. Falsely claiming citizenship. Sec. 28. [Forging bonds, public records, or other writings.] Who- ever shall falsel}^ make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged, or coimterfeited, or willmgly aid or assist in the false making, altering, forging, or counterfeiting, any bond, bid, proposal, contract, guarantee, security, ofRcial bond, public record, affidavit, or other writing for the purpose of defrauding the United States; or shall utter or pub- lish as true, or cause to be uttered or published as true, or have in his possession with the intent to utter or publish as true, any such false, forged, altered, or counterfeited bond, bid, proposal, contract, guarantee, security, official bond, public record, affidavit, or other writing, for the purpose of defrauding the United States, knowing the same to be false, forged, altered, or counterfeited; or shall transmit to, or present at, or cause or procure to be transmitted to, or presented at, the office of any officer of the United States, any such false, forged, altered, or counterfeited bond, bid, proposal, contract, guarantee, security, or official bond, public record, affidavit, or other writing, knowing the same to be false, forged, altered, or counterfeited, for the purpose of defrauding the United States, shall be fined not more than one thousand dol- lars, or imprisoned not more than ten years, or both. — (35 Stat., 1094; sees. 5418, 5479, R. S.) Forging or altering certificates of discharge from the navy, or having same in possession; See act of March 4, 1917 (39 Stat., 1182). Sec. 29. [Forging deeds, powers of attorney, receipts, or other WRITINGS.] Whoever shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged, or counterfeited, or willingly aid or assist in the false making, altering, forging, or counterfeiting, any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving or of enabling any other person, either directly or indirectly, to obtain or receive from the United States, or any of their officers or agents, any sum of money; or whoever shall utter or publish as true, or cause to be uttered or published as true, any such false, forged, altered, or counterfeited deed, power of attorney, order, certificate, receipt, contract, or other writing with intent to defraud the United States, knowing 1322 Criminal Code. Pt. 3. STATUTES AT LARGE. Mar. 4, 1909. the same to be false, altered, forged, or counterfeited; or whoever shall trans- mit to, or present at, or cause or procure to be transmitted to, or presented at, any office or officer of the Government of the United States, any deed, power of attorney, order, certificate, receipt, contract, or other writing, in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited, shall be fined not more than one thousand dollars and imprisoned not more than ten years. — (35 Stat., 1094; sec. 5421, R. S.) * Sec. 30. [Having forged papers in possession.] Whoever, knowingl}^ and with intent to defraud the United States, shall have in his possession any false, altered, forged, or counterfeited deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of enabling another to obtain from the United States, or from any officer or agent thereof, any sum of money, shall be fined not more than five hundred dollars or imprisoned not more than five years, or both.— (35 Stat., 1094; sec. 5422, R. S.) Sec. 31. [Officer making false acknowledgments.] Whoever, being an officer authorized to administer oaths or to take and certify acknowledg- ments, shall knowingly make any false acJvnowledgment, certificate, or state- ment concerning the appearance before him, or the taking of an oath or affirmation by any person with respect to any proposal, contract, bond, under- taking, or other matter submitted to, made with, or taken on behalf of the United States, and concerning which an oath or affirmation is required by law or regulation made in pursuance of law, or with respect to the financial standing of any principal, surety, or other party to any such proposal, contract, bond, undertaking, or other instrument, shall be fined not more than two thousand dollars or imprisoned not more than two years, or both. — (35 Stat., 1094-1095.) See note to section 183, Revised Statutes. Sec. 32. [Falsely pretending to be officer, etc.] Whoever, with intent to defraud either the United States or any person, shall falsely assume or pretend to be an officer or employee acting under the authority of the United States, or any department, or any officer of the Government thereof, and shall take upon himself to act as such, or shall in such pretended character demand or obtain from any person or from the United States, or any depart- ment, or any officer of the Government thereof, any mone}^, paper, document, or other valuable thing, shall be fined not more than one thousand dollars or imprisoned not more tlian three years, or both. — (35 Stat., 1095; sec. 5438, R. S.) See act of June 3, 1916, section 125 (39 Stat., 216), as to unauthorized wearing of uniform of Navy or Marine Corps, etc. Sec. 34. [False demand for wages, etc.] Whoever shall knowingly or fraudulently demand or endeavor to obtain any share or sum in the public stocks of the United States, or to have any part thereof transferred, assigned, sold, or conveyed, or to have any annuity, dividend, pension, prize money, wages, or other debt due from the United States, or any part thereof, received, or paid by virtue of any false, forged, or counterfeited power of attorney, authority, or instrument shall be fined not more than five thousand dollars and imprisoned not more than ten years. — (35 Stat., 1095; sec. 5436, R. S.) 54641 °— 22 84 1 323 Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. Sec. 35. [Fraudulent claims; larceny; conspiracy; false receipts; PURCHASE OF NAVAL CLOTinxG, ETC.] Wliocver shall make or cause to be made or present or cause to be presented, for payment or approval, to or b}^ any person or ollicer in tlie civil, military, or naval service of the United States, or any department thereof, or any corporation in which the United States of America is a stockliolder, any claim upon or against the Government of the United States, or any department or officer thereof, or any corporation in which the United States of America is a stockholder, knowing such claim to be false, fictitious, or fraudulent; or whoever, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, or for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States, or any department thereof, or any corporation in which the United States of America is a stockholder, shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to con- tain any fraudulent or fictitious statement or entry; or whoever shall take and carry away or take for his own use, or for the use of another, with intent to steal or purloin, any personal property of the United States, or any branch or department thereof, or any corporation in which the United States of America is a stockliolder; or whoever shall enter into any agreement, combination, or conspiracy to defraud the Government of the United States, or any department or officer thereof, or any corporation in which the United States of America is a stockholder, by obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim ; and whoever, having charge, possession, custody, or control of any money or other public property used or to be used in the military or naval service, with intent to defraud the United States, or any department thereof, or any corporation in which the United States of America is a stockholder, or willfully to conceal such money or other property, shall deliver or cause to be delivered to any person having authority to receive the same any amount of such money or other property less than that for which he received a certificate or took a receipt ; or whoever, being authorized to make or deliver any certificate, voucher, receipt, or other paper certifying the receipt of arms, ammunition, provisions, clothing, or other property so used or to be used, shall make or deliver the same to any other person without a full knowledge of the truth of the facts stated therein and with intent to defraud the United States, or any department thereof, or any corporation in which the United States of America is a stockholder, shall be fined not more than $10,000 or imprisoned not more than ten years, or both. And whoever shall purchase, or receive in pledge, from any person any arms, equipment, ammunition, clothing, military stores, or other property furnished by the United States, under a clothing allowance or otherwise, to any soldier, sailor, officer, cadet, or midshipman in the military or naval service of the United States or of the National Guard or Naval Militia, or to any person accompanying, serving, or retained with the land or naval forces and subject to military or naval law, having knowledge or reason to believe that the property has been taken from the possession of the United States or furnished by the United States under 1324 Criminal Code. Ft. 3. STATUTES AT LARGE. Mar. 4, 1909. such allowance, shall be fined not more than $500 or imprisoned not more than two years, or both.— (35 Stat., 1095-1096; 40 Stat., 1015-1016; sec. 5438, R. S.; 35 Stat., 555-556.) See section 1624, ReAdsed Statutes, article 14; see also section 3748, Revised Statutes; and see section 46 of this act, set forth below. This section was expressly amended and re- enacted to read as above bv act of October 23, 1918 (40 Stat., 101-5-1016.) Sec. 36. [Embezzlixg, etc., arms, stores, etc.] Whoever shall steal, embezzle, or knowingly apply to his own use, or unlawfully sell, convey, or dispose of, any ordnance, arms, ammunition, clothing, subsistence, stores, money, or other property of the United States, furnished or to be used for the military or naval service, shall be punished as prescribed in the preceding section.— (35 Stat., 1096; sec. 5439, R. S.) See section 1624, Re\'ised Statutes, article 14; . statute, for uncertainty as to the punishment and see section 47 of this act, set forth j prescribed; the "preceding section" to which below. it refers prescribing different punishments for Section held inoperative. — Section 36 different offenses therein prescribed. (Holmes of the Criminal Code is inoperative as a criminal v. U. S., 267 Fed. Rep., 529.) Sec. 37. [Coxspiracy to comaht offense against United States.] If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both. — (35 Stat., 1096; sec. 5440, R. S.; 21 Stat., 4.) This section was extended for certain purposes to the Philippine Islands and the Canal Zone by act of June 15, 1917 (40 Stat., 231 >. Sec. 38. [Fraudulent interference with disposition of prize, etc.] Whoever shall willfully do, or aid or advise in the doing, of any act relating to the bringing in, custody, preservation, sale, or other disposition of any property captured as prize, or relating to any documents or papers connected with the propert}^, or to any deposition or other document or paper connected with the proceedings, with intent to defraud, delay, or injure the United States or any captor or claimant of such property, shall be fined not more than ten thousand dollars, or imprisoned not more than five years, or both. — (35 Stat., 1096; sec. 5441, R. S.) See section 1624, Revised Statutes, articles 16-17; See also sections 4613-4652, Revised Statutes. Sec. 39. [Bribery of United States officer.] Whoever shall promise, offer, or give, or cause or procure to be promised, offered, or given, any money or other thing of value, or shall make or tender any contract, undertaking, obligation, gratuity, or security for the payment of money, or for the delivery or conveyance of anything of value, to any officer of the United States, or to any person acting for or on behalf of the United States in any official function, under or by authority of any department or office of the Government thereof, or to any officer or person acting for or on behalf of either House of Congress, or of any committee of either House or both Houses thereof, with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him 1325 Mar. 4, 1900. Pt. S. STATUTES AT LARGE. Criminal Code. in his official capacity, or in his phice of trust or profit, or with intent to influ- ence him to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, shall be fined not more than three times the amount of money or value of the thing so offered, promised, given, made, or tendered, or caused or procured to be so offered, promised, given, made, or tendered, and imprisoned not more than three years. — (35 Stat., 1096; sec. 5451, R. S.) Sec. 40. [Unauthorized use of official papers relating to claims.] Wlioever shall take and carry away, without authority from the United States, from the place where it has been filed, lodged, or deposited, or where it may for the time being actually be kept by authority of the United States, any certifi- cate, affidavit, deposition, written statement of facts, power of attorney, receipt, voucher, assignment, or other document, record, file, or paper, prepared, fitted, or intended to be used or presented in order to procure the payment of money from or by the United States, or any officer or agent thereof, or the allowance or payment of the whole or any part of any claim, account, or de- mand against the United States, whether the same has or has not already been so used or presented, and whether such claim, account, or demand, or any part thereof, has or has not already been allowed or paid ; or whoever shall present, use, or attempt to use, any such document, record, file, or paper so taken and carried away in order to procure the payment of any money from or by the United States, or any officer or agent thereof, or the allowance or payment of the whole or any part of any claim, account, or demand against the United States, shall be fined not more than five thousand dollars or imprisoned not more than ten years, or both. — (35 Stat., 1096-1097; sec. 5454, R. S.) See sections 188, 190, and 418, Revised Statutes, and notes thereto; see also sections 109 and 128 of this act, set forth below. Sec. 41. [Persons interested not to act as Government agents.] No officer or agent of any corporation, joint-stock company, or association, and no member or agent of any firm, or person directly or indirectly interested in the pecuniary profits or contracts of such corporation, joint-stock company, association, or firm, shall be employed or shall act as an officer or agent of the United States for the transaction of business with such corporation, joint-stock company, association, or firm. Whoever shall violate the provision of this section shall be ffiied not more than two thousand dollars and imprisoned not more than two years. — (35 Stat., 1097; sec. 1783, R. S.) See section 3745, Revised Statutes; see also act of June 10, 1896 (29 Stat., 361); and see note to section 1487, Revised Statutes, under "Hire of quarters." Sec. 42. [Enticing desertion from Naa'y, etc.; assisting deserters.] Whoever shall entice or procure, or attempt or endeavor to entice or procure, any soldier in the military service, or any seaman or other person in the naval service of the United States, or who has been recruited for such service, to desert therefrom, or shall aid any such soldier, seaman, or other person in deserting or in attempting to desert from such service; or whoever shall harbor, conceal, protect, or assist any such soldier, seaman, or other person who may have deserted from such service, knowing him to have deserted therefrom, or 1326 Criminal Code. PL 3. STATUTES AT LARGE. Mar. 4, 1909. shall refuse to give up and deliver such soldier, seaman, or other person on the demand of any officer authorized to receive him, shall be imprisoned not more than three years and fined not more than two thousand dollars. — (35 Stat., f097; sees. 1553, 5455, R. S.) See section 1624, Revised Statutes, article 8; see also note to section 1553, Revised Statutes. Sec. 43. [Enticing workmen from arsenals, etc.] Whoever shall procure or entice any artificer or workman retained or employed in any arsenal or armory to depart from the same during the continuance of his engagement, or to avoid or break his contract with the United States ; or whoever, after due notice of the engagement of such workman or artificer, during the continuance of such engagement, shall retain, hire, or in anywise employ, harbor, or conceal such artificer or workman, shall be fined not more than fifty dollars or imprisoned not more than three months, or both. — (35 Stat., 1097; sec. 1668, R. S.) Sec. 44. [Injuries to fortifications, etc. ; defensive sea areas.] Who- ever shall willfully trespass upon, injure, or destroy any of the works or prop- erty or material of any submarine mine or torpedo or fortification or harbor- defense system o\vned or constructed or in process of construction by the United States, or shall willfully interfere with the operation or use of any such submarine mine, torpedo, fortification, or harbor-defense system, or shall knowingly, willfully, or wantonly violate any duly authorized and promulgated order or regulation of the President governing persons or vessels within the limits of defensive sea areas, which defensive sea areas are hereby authorized to be established by order of the President from time to time as may be neces- sary in his discretion for purposes of national defense, shall be punished on conviction thereof in a district or circuit court of appeals of the United States for the district or circuit in which the offense is committed, or into which the offender is first brought, by a fine of not more than $5,000, or by imprisonment for a term not exceeding five years, or by both, in the discretion of the court. — (35 Stat., 1097; 30 Stat., 717; 39 Stat., 1194; 40 Stat., 89.) This section was expressly amended and reen- acted to read as above by the naval appro- priation act of March 4, 1917 (39 Stat., 1194). It was further amended by the following section in act of May 22, 1917 (40 Stat., 89, chap. 20): "Sec. 19. That section forty-four of the Act entitled ' An Act to codify, revise, and amend the penal laws of the United States, ' approved March fourth, nineteen hundred and nine, as amended by an Act entitled 'An Act making appropriation for the naval service for the fiscal year ending June thirtieth, nineteen hundred and eighteen, and for other purposes, ' approved Sec. 45. [Unlawfully entering military reservation, etc.] Who- ever shall go upon any military reservation, army post, fort, or arsenal, for any purpose prohibited by law or military regulation made in pursuance of law, or whoever shall reenter or be found within any such reservation, post, fort, or arsenal, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof, shall be fined not more than five hundred dollars, or imprisoned not more' than six months, or both. — (35 Stat., 1097.) 1327 March fourth, nineteen hundred and seven- teen, be, and is hereby, amended by add- ing the follo\ving to said section: " 'Provided, That offenses hereunder committed within the Canal Zone or within any defensive sea areas which the Presi- dent is authorized to estabUsh by said sec- tion, shall be cognizable in the District Court of the ('anal Zone, and jurisdiction is hereby conferred upon said court to hear and determine all such cases arising under said section and to impose the pen- alties therein provided for the violation of any of the provisions of said section.' " Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. See section 1G24, Revised Statutes, article 5; see also acts of June 15, 1917 (40 Stat., 217, et seq.), and April 20, 1918 (40 Stat., 533-534). Sec. 46. [Robbery or larceny of personal property of United States.] Wlioever shall rob another of any kind or description of personal property belongnig to the United States, or shall feloniously take and carry away the same, shall be fined not more than five thousand dollars, or impris- oned not more than ten years, or both. — (35 Stat., 1097; sec. 5456, R. S.) See section 35 of this act, set fortli above. Sec. 47. [Embezzling, stealing, etc., public money or property.] Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both. — (35 Stat., 1097; 18 Stat., 479.) See sections 35, 36, and 46 of this act, set forth above; and see sections 86-92 of this act, set forth below. Sec. 48. [Receiving, etc., stolen public property.] Whoever shall receive, conceal, or aid in concealing, or shall have or retain in his possession with intent to convert to his own use or gain, any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, which has theretofore been embezzled, stolen or purloined by any other person, knowing the same to have been so embezzled, stolen, or purloined, shall be fined not more than five thousand dollars, or im- prisoned not more than five years, or both; and such person may be tried either before or after the conviction of the principal offender. — (35 Stat., 1098; 18 Stat., 479.) Sec. 79. [Falsely claiming citizenship.] Whoever shall knowingly use any certificate of naturalization heretofore or which hereafter may be granted by any court, which has been or may be procured through fraud or by false evidence, or which has been or may hereafter be issued by the clerk or any other officer of the court without any appearance and hearing of the applicant in court and without lawful authority; or whoever, for any fraudulent purpose whatever, shall falsely represent himself to be a citizen of the United States without having been duly admitted to citizenship, shall be fined not more than one thousand dollars, or imprisoned not more than two years, or both. — (35 Stat., 1103; sec. 5428, R. S.) See note to section 1569, Revised Statutes, under "9. Longevity pay. General Order No. 34," as to additional pay allowed en- listed men of the Navy who are citizens of the United States; see also note to section 236, Revised Statutes, under V, (A), "Citizenship of enlisted men;" and note to Constitution, fourteenth amendment. Chapter Five. OFFENSES relating TO OFFICIAL DUTIES. Sec. 85. Officer, etc., of the United States guilty of extortion. 86. Receipting for larger sums than are paid. 87. Disbursing officers unlawfully converting, etc., public money. 88. Failure of Treasurer, etc., to safely keep pubUc money. Sec. 89. Custodian of public money faiUng to safely keep, etc. 90. Failure of officer to render accounts, etc. 91. Failure to deposit as required. 92. Provisions of the five preceding sections, to whom applicable. 93. Record evidence of embezzlement. 1328 Criminal Code. Pt. S. STATUTES AT LARGE. Mar. 4, 1900, Sec. 114. Member of Congress not to be interested in contract. 115. Officer making contracts with Member of Congress. 116. Contracts to which two preceding sections do not apply. 117. United States officer accepting bribe. 118. Political contributions not to be solicited by certain officers. 119. Political contributions not to be received in pubUc offices. 120. Immunity from official proscription. 121. Giving money to officials for political pur- poses prohibited. 122. Penalty for violating provisions of four preceding sections. Sec. 94. Prima facie evidence. 95. Evidence of conversion. 97. Embezzlement by internal-revenue of- ficer, etc. [Offense not otherwise pun- ishable.] 98. Officer contracting beyond specific ap- propriation. 101. Failure to make returns or reports. 103. Collecting and disbursing officers forbid- den to trade in public property. 106. Other false certificates. 109. Officer not to be interested in claims against the United States. 112. Member of Congress [or other officers] taking consideration for procuring con- tract, office, etc.; offering Member con- sideration, etc. 113. Member of Congress, etc., taking compen- sation in matters to which United States is a party. Sec. 85. [Extortion by officials.] Every officer, clerk, agent, or em- ployee of the United States, and every person representing himself to be or assuming to act as such officer, clerk, agent, or employee, who, under color of his office, clerkship, agency, or employment, or under color of his pretended or assumed office, clerkship, agency, or employment, is guilty of extortion, and every person who shall attempt any act which if performed would make him guilty of extortion, shall be fined not more than five hundred dollars, or impris- oned not more than one year, or both. — (35 Stat., 1104; sec. 5481, R. S.; 34 Stat., 546.) Sec. 86. [Receipting for larger sums than are paid.] Whoever, be- ing an officer, clerk, agent, employee, or other person charged with the pay- ment of any appropriation made by Congress, shall pay to any clerk or other employee of the United States a sum less than that provided by law, and re- quire such employee to receipt or give a voucher for an amount greater than that actually paid to and received by him, is guilty of embezzlement, and shall be fined in double the amount so withheld from any employee of the Govern- ment and imprisoned not more than two years. — (35 Stat., 1105; sec. 5483, R. S.) See section 1624, Revised Statutes, article 14. Sec. 87. [Disbursing officers unlawfully using, etc., public money.] Whoever, being a disbursing officer of the United States, or a person acting as such, shall in any manner convert to his own use, or loan with or without in- terest, or deposit in any place or in any manner, except as authorized by law, any public money intrusted to him; or shall, for any purpose not prescribed by law, withdraw from the Treasurer or any assistant treasurer, or any authorized depositary, or transfer, or apply, any portion of the public money intrusted to him, shall be deemed guilty of an embezzlement of the money so converted, loaned, deposited, withdrawn, transferred, or applied, and shall be fined not more than the amount embezzled, or imprisoned not more than ten years, or both.— (35 Stat., 1105; sec. 5488, R. S.) See section 1624, Reiised Statutes, article 14; see also section 47 of this act, set forth above; and see section 92, below. Sec. 88. [Failure of depositaries to safely keep public deposits.] If the Treasurer of the United States or any assistant treasurer, or any public 1320 Mar. 4, 1909. Pt. S. STATUTES AT LARGE. Criminal Code. depositary, fails safely to keep all moneys deposited by any disbursing ofTicer or disbursing agent, as well as all moneys deposited by any receiver, collector, or other person having money of the United States, he shall be deemed guilty of embezzlement of the moneys not so safely kept, and shall be fined in a sum equal to the amount of money so embezzled and imprisoned not more than ten years.— (35 Stat., 1105; sec. 5489, R. S.) See section 1624, Revised Statutes, article 14; see also section 92 of this act, set forth below. Sec. 89. [Custodiax failing to keep, etc., public moneys.] Every officer or other person charged by any act of Congress with the safe-keeping of the public moneys who shall loan, use, or convert to his o"wti use, or shall de- posit in any bank or exchange for other funds, except as specially allowed by law, any portion of the public moneys intrusted to him for safe-keeping, shall be guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged, and shall be fined in a sum equal to the amount of money so embezzled and imprisoned not more than ten years. — (35 Stat., 1105; sec. 5490, R. S.) See section 1624, Revised Statutes, article 14; see also section 92 of this act, set forth below. Sec. 90. [Failure of officer to render accounts.] Every officer or agent of the United States who, having received public money which he is not authorized to retain as salary, pay, or emolument, fails to render his accounts for the same as provided by law shall be deemed guilty of embezzlement, and shall be fined in a sum equal to the amount of the money embezzled and imprisoned not more than ten years. — (35 Stat., 1105; sec. 5491, R. S.) See section 1624, Revised Statutes, article 14; see also section 92 of this act, set forth below; and see notes to sections 176 and 1376, Re^^8ed Statutes. Punishment for making false entries in ac- counts, rendering false returns, etc., is pre- scribed by act of March 4, 1911 (36 Stat , 1355). Time for rendering public accounts: See act of July 31, 1894, section 12 (28 Stat., 209); and see note to section 3622, Revised Statutes. Sec. 91. [Failure to deposit as required.] Whoever, having money of the United States in his possession or under his control, shall fail to deposit it with the Treasurer, or some assistant treasurer, or some public depositary of the United States, when required so to do by the Secretary of the Treasury, or the head of any other proper department, or by the accounting officers of the Treasury, shall be deemed guilty of embezzlement thereof, and shall be fined in a sum equal to the amount of money embezzled and imprisoned not more than ten years. — (35 Stat., 1105; sec. 5492, R, S.) See section 1624, Revised Statutes, article 14. Sec. 92. [Five preceding sections construed.] The provisions of the five preceding sections shall be construed to apply to all persons charged with the safe-keeping, transfer, or disbursement of the public money, whether such persons be indicted as receivers or depositaries of the same. — (35 Stat., 1105.) See section 1624, Revised Statutes, article 14. Sec. 93. [Record evidence of embezzlement.] Upon the trial of any indictment against any person for embezzling public money under any provision of the six preceding sections, it shall be sufficient evidence, prima facie, for the purpose of showing a balance against such person, to produce a transcript 1380 Criminal Code. Pt. 3. STATUTES AT LARGE. Mar. 4, 1909. from the books and proceedings of the Treasury, as required in civil cases, under the provisions for the settlement of accounts between the United States and receivers of public money. — (35 Stat., 1105; sec. 5494, R. S.) Sec. 94. [Prima facie evidence.] The refusal of any person, whether in or out of ofhce, charged with the safe-keeping, transfer, or disbursement of the public money to pay any draft, order, or warrant, drawn upon him by the proper accounting officer of the Treasury, for any public money in his hands belonging to the United States, no matter in what capacity the same may have been received, or may be held, or to transfer or disburse any such money, promptly, upon the legal requirement of any authorized officer, shall be deemed, upon the trial of any indictment against such person for embezzlement, prima facie evidence of such embezzlement. — (35 Stat., 1106; sec. 5495, R. S.) Sec. 95. [Evidence of conversion.] If any officer charged with the disbursement of the public moneys accepts, receives, or transmits to the Treas- ury Department to be allowed in his favor any receipt or voucher from a creditor of the United States without having paid to such creditor in such funds as the officer received for disbursement, or in such funds as he may be authorized by law to take in exchange, the full amount specified in such receipt or voucher, every such act is an act of conversion by such officer to his own use of the amount specified in such receipt or voucher. — (35 Stat., 1106; sec. 5496, R. wS.) Sec. 97. [Embezzlement; offenses not otherwise punishable.] Any officer connected with, or employed in, the Internal-Revenue Service of the United States, and any assistant of such officer, who sliall embezzle or wrong- fully convert to his own use any money or other property of the United States, and any officer of the United States, or any assistant of such officer, who shall embezzle or wrongfully convert to his own use any money or property which may have come into his possession or under his control in the execution of such office or employment, or under color or claim of authority as such officer or assistant, whether the same shall be the money or property of the United States or of some other person or party, shall, where the offense is not other- wise punishable by some statute of the United States, be fined not more than the value of the, money and property thus embezzled or converted, or imprisoned not more than ten years, or both. — (35 Stat., 1106; 30 Stat., 280.) See section 1624, Revised Statutes, article 22. Sec. 98. [Officer contracting beyond specific appropriation,] Who- ever, being an officer of the United States, shall knowingly contract for the erection, repair, or furnishing of any public building, or for any public improvement, to pay a larger amount than the specific sum appropriated for such purpose, shall be fined not more than two thousand dollars and imprisoned not more than two years. — (35 Stat., 1106; sec. 5503, R. S.) See section 3733, Revised Statutes. Sec. 101. [Failure to make reports at reql^red times.] Every officer who neglects or refuses to make any return or report which he is required to make at stated times by any act of Congress or regulation of the Department of the Treasury, other than his accounts, within the time prescribed by such act or regulation, shall be fined not more than one thousand dollars. — (35 Stat., 1107; sec. 1780, R.S.) See sections 195, 196, and 429, Revised Statutes, and notes thereto. 1331 Mar. 4, 1909. /'/. S. STATUTES AT LARGE. Criminal Code. Sec. 103. [Tkading in public property by disbursing officer.] WhooTor, boino; an ofliror of the United States concerned in the collection or tlie dishursonient of the revenues thereof, shall carry on an}'^ trade or business in tlie funds or debts of the United States, or of any State, or in any public property of either, shall })e fined not more than three thousand dollars, or imprisoned not more than one year, or both, and be removed from office, and thereafter be incapable of holding any office under the United States. — (35 Stat., 1107; sees. 1788, 1789, R. S.) Sec. 106. [False certificates; not otherwise punishable.] Who- ever, beino; a public officer or other person authorized by any law of the United States to make or give a certificate or other writing, shall knowingly make and deliver as true such a certificate or writing, containing any statement which he knows to be false, in a case where the punishment thereof is not elsewhere expressly provided by law, shall be fined not more than five hundred dollars or imprisoned not more than one year, or both. — (35 Stat., 1107.) See section 1624, ReAaeed Statutes, articles 8 and 14; see also act of March 4, 1911 (36 Stat., 1355); and see sections 31, 35, and 86 of this act, set forth above. Sec. 109. [Officers interested in claims against the United States.] Whoever, being an officer of the United States, or a person holding any place of trust or profit, or discharging any official function under, or in connection with, any Executive Department of the Government of the United States, or under the Senate or House of Representatives of the United States, shall act as an agent or attorney for prosecuting any claim against the United States, or in any manner, or by any means, otherwise than in discharge of his proper official duties, shall aid or assist in the prosecution or support of any such claim, or receive any gratuity, or any share of or interest in any claim from any claim- ant against the United States, with intent to aid or assist, or in consideration of having aided or assisted, in the prosecution of such claim, shall be fined not more than five thousand dollars or imprisoned not more than one year, or both.— (35 Stat., 1107; sec. 5498, R. S.) ,See section 113 of this act, set forth below; and see note to section 190, Revised Statutes, as to status of retired officers; see also note to section 418, Revised Statutes, under "Rec- ords of Department," and section 40 of this act, set forth above. By act of March 1, 1901 (31 Stat., 844-845), it waa provided that members of the National Guard of the District of Coliimbia who receive compensation for their services as such shall not be held or construed to be officers of the United States, or persons holding g,ny place of trust or profit, etc., within the provision of section 5498, Re- vised Statutes, now embodied in section 109 of this act. Sec. 112. [Member of Congress, etc., taking Consideration for pro- curing CONTRACT, ETC.] Whoever, being elected or appointed a Member of or Delegate to Congress, or a Resident Commissioner, shall, after his election or appointment and either before or after he has qualified, and during his con- tinuance in office, or being an officer or agent of the United States, shall directly or indirectly take, receive, or agree to receive, from any person, any money, property, or other valuable consideration whatever, for procuring, or aiding to procure, any contract, appointive office, or place, from the United States or from any officer or department thereof, for any person whatever, or for giving any such contract, appointive office, or place to any person whomsoever; or whoever, directly or indirectly, shall offer, or agree to give, or shall give, or bestow, any 1332 Criminal Code. Pt.S. STATUTES AT LARGE. Mar. 4, 1909. money, property, or other valuable consideration whatever, for the procuring, or aiding to procure, any such contract, appointive office, or place, shall be fined not more than ten thousand dollars and imprisoned not more than two years; and shall, moreover, be disqualified from holding any office of honor, profit, or trust under the Government of the United States. Any such contract or agree- ment may at the option of the President be declared void. — (35 Stat,, 1108- 1109; sec. 1781, R. S.) See section 3741, R. S.; and see act of June 10, 1896 (29 Stat., 361). Sec. 113. [Member of Congress, etc., receiving pay for services BEFORE COURTS-MARTIAL, BUREAUS, ETC.] Whoever, being elected or ap- pointed a Senator, Member of or Delegate to Congress, or a Resident Com- missioner, shall, after his election or appointment and either before or after he has qualified, and during his contmuance in office, or being the head of a depart- ment, or other officer or clerk in the employ of the United States, shall, directly or indirectly, receive, or agree to receive, any compensation whatever for any serv- ices rendered or to be rendered to any person, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party or directly or indirectly interested, before any department, court-martial, bureau, officer, or any civil, military, or naval commission whatever, shall be fined not more than ten thousand dollars and imprisoned not more than two years; and shall, more- over, thereafter be incapable of holding any office of honor, trust, or profit under the Government of the United States. — (35 Stat., 1109; sec. 1782, R. S.) See note to section 190, Revised Statutes, as to status of retired officer. Sec. 114. [Member of Congress interested in public contracts.] Whoever, being elected or appointed a Member of or Delegate to Congress, or a Resident Commissioner, shall, after his election or appointment and either before or after he has qualified, and during his continuance in office, directly or indirectly, himself, or by any other person in trust for him, or for his use or benefit, or on his account, undertake, execute, hold, or enjoy, in whole or in part, any contract or agreement, made or entered into in behalf of the United States by any officer or person authorized to make contracts on its behalf, shall be fined not more than three thousand dollars. All contracts or agreements made in violation of this section shall be void; and whenever any sum of money is ad- vanced by the United States, in consideration of any such contract or agreement, it shall forthwith be repaid; and in case of failure or refusal to repay the same when demanded by the proper officer of the department under whose authority such contract or agreement shall have been made or entered into, suit shall at once be brought against the persons so failing or refusing and his sureties, for the recovery of the money so advanced. — (35 Stat., 1109; sec. 3739, R. S.) See section 112 of this act, set forth above, and section 3741, Re\'ised Statutes. Sec. 115. [Officer making contract with Member of Congress.] Whoever, being an officer of the United States, shall on behalf of the United States, directly or indirectly make or enter into any contract, bargain, or agree- ment, in writing or otherwise, with any Member of or Delegate to Congress, or any Resident Commissioner, after his election or appointment as such Member, Delegate, or Resident Commissioner, and either before or after he has qualified, 1333 Mar. 4, 1909. Pt. S. STATUTES AT LARGE. Criminal Code. and (hiring; his continuance in office, shall be fined not more than three thousand dollars.— (35 Stat., 1109; sec. 3742, R. S.) See section 3741, Re^dsed Statutes. Sec. 116. [Contracts; two preceding sections construed.] Nothing contained in the two preceding sections shall extend, or be construed to extend, to any contract or agreement made or entered into, or accepted, by any incor- porated company, where such contract or agreement is made for the general benefit of such incorporation or company; nor to the purchase or sale of bills of exchange or other property by any Member of or Delegate to Congress, or Resi- dent Commissioner, where the same are ready for delivery, and payment therefor is made, at the time of making or entering into the contract or agreement. — (35 Stat., 1109; sec. 3740, R. S.) Sec. 117. [Official accepting bribe.] Whoever, being an officer of the United States, or a person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or office of the Government thereof; or whoever, being an officer or person acting for or on behalf of either House of Congress, or of any committee of either House, or of both Houses thereof, shall ask, accept, or receive any money, or any con- tract, promise, undertaking, obligation, gratuity, or security for the payment of money, or for the delivery or conveyance of anything of value, with intent to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, influenced thereby, shall be fined not more than three times the amount of money or value of the thing so asked, accepted, or received, and imprisoned not more than three years; and shall, moreover, forfeit his office or place and thereafter be forever disqualified from holding any office of honor, trust, or profit under the Government of the United States.— (35 Stat., 1109-1110; sees. 5501, 5502, R. S.) Sec. 118. [Political contributions solicited by officers.] No Senator or Representative in, or Delegate or Resident Commissioner to Con- gress, or Senator, Representative, Delegate, or Resident Commissioner elect, or officer or employee of either House of Congress, and no executive, judicial, military, or naval officer of the United States, and no clerk or employee of any department, branch, or bureau of the executive, judicial, or military or naval service of the United States, shall, directly or indirectly, solicit or receive, or be in any manner concerned in soliciting or receiving, any assessment, subscription, or contribution for any political purpose whatever, from any officer, clerk, or employee of the United States, or any department, branch, or bureau thereof, or from any person receiving any salary or compensation from moneys derived from the Treasury of the United States.— (35 Stat., 1110; 22 Stat., 406.) See section 1546, RcAdsed Statutes, and note thereto. Sec. 119. [Political contributions solicited in public offices.] No person shall, in any room or building occupied in the discharge of official duties by any officer or employee of the United States mentioned in the preceding section, or in any navy-yard, fort, or arsenal, solicit in any maimer whatever or receive any contribution of money or other thing of value for any poUtical purpose whatever.— (35 Stat., 1110; 22 Stat., 407.) See section 1546, Revised Statutes, and note thereto. 1334 Criminal Code. Ft. 3. STATUTES AT LARGE. Mar. 4, 1909. Sec. 120. [Immunity from official proscription.] No officer or employee of the United States mentioned in section one hundred and eighteen, shall discharge, or promote, or degrade, or in any manner change the official rank or compensation of any other officer or employee, or promise or threaten so to do, for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose. — (35 Stat., 1110; 22 Stat., 407.) See section 1546, Revised Statutes, and note thereto. Sec. 121. [Making political contributions to officials.] No officer, clerk, or other person in the service of the United vStates shall, directly or indi- rectly, give or hand over to any other officer, clerk, or person in the service of the United States, or to any Senator or IViember of or Delegate to Congress, or Resident Commissioner, any money or other valuable thing on account of or to be applied to the promotion of any political object whatever. — (35 Stat., 1110; 22 Stat., 407.) See section 1546, Re\ised Statutes, and note thereto. Sec. 122. [Punishment; four preceding sections.] Whoever shall violate any provision of the four preceding sections shall be fined not more than five thousand dollars, or imprisoned not more than three years, or both. — (35 Stat., 1110; 22 Stat., 407.) Chapter Six. offenses against public justice. Sec. 125. Perjury. 126. Subornation of perjury. 128. Destroj'ing, etc., public records. 129. Destroying records by officer in charge. 131. Bribery of a judge or judicial officer. Sec. 133. Juror, referee, master, etc., or judicial officer, etc., accepting bribe. 134. Witness accepting bribe. 145. Extortion by informer. 146. Misprision of felony. Sec. 125. [Perjury defined.] Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or cer- tfficate by him subscribed is true, shall willfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury, and shall be fined not more than two thousand dollars and impris- oned not more than five years. — -(35 Stat., 1111 ; sec. 5392, R. S.) See sections 1023 and 1624, articles 14, 22, and 42, Revised Statutes. Sec. 126. [Subornation of perjury.] Whoever shall procure another to commit any perjury is guilty of subornation of perjury and punishable as in the preceding section prescribed. — (35 Stat., 1111; sec. 5393, R. S.) Sec. 128. [Destroying, etc., public records.] Whoever shall willfully and unlawfully conceal, remove, mutilate, obliterate, or destroy, or attempt to conceal, remove, mutilate, obliterate, or destroy, or, with intent to conceal, remove, mutilate, obliterate, destroy, or steal, shall take and carry away any record, proceeding, map, book, paper, document, or other thing, ffied or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined 1335 Mar. 4, 1909. Pt. S. STATUTES AT LARGE. Criminal Code. not more than two thousand doHars, or imprisoned not more than three years, or both.— (35 Stat., 1111-1112; sec. 5403, R. S.) See section 40 of this act, set forth above; and see notes to section 418, Revised Statutes, and act of February 1(J, 1889 (25 Stat., G72). Sec. 129. [Destroying, etc., records by custodian.] Whoever, having the custody of any record, proceeding, map, book, document, paper, or other thing specified in the preceding section, shall willfully and unlawfully conceal, remove, mutilate, obliterate, falsify, or destroy any such record, proceeding, map, book, document, paper, or thing, shall be fined not more than two thou- sand dollars, or imprisoned not more than three years, or both; and shall more- over forfeit his office and be forever afterward disqualified from holding any office under the Government of the United States. — (35 Stat., 1112; sec. 5408, R. S.) Sec. 131. [Bribery of judicial officer, etc.] Whoever, directly or indirectly, shall give or offer, or cause to be given or offered, any money, prop- erty, or value of any kind, or any promise or agreement therefor, or any other bribe, to any judge, judicial officer, or other person authorized by any law of the United States to hear or determine any question, matter, cause, proceeding, or controversy, with intent to influence his action, vote, opinion, or decision thereon, or because of any such action, vote, opinion, or decision, shall be fined not more than twenty thousand dollars, or imprisoned not more than fifteen years, or both; and shall forever be disqualified to hold any ofl&ce of honor, trust, or profit under the United States. — (35 Stat., 1112; sec. 5449, R. S.) Sec. 133. [Acceptance of bribe by officer.] Whoever, being a juror, referee, arbitrator, appraiser, assessor, auditor, master, receiver. United States commissioner, or other person authorized by any law of the United States to hear or determine any question, matter, cause, controversy, or proceeding, shall ask, receive, or agree to receive, any money, property, or value of any kind, or any promise or agreement therefor, upon any agreement or understanding that his vote, opinion, action, judgment, or decision shall be influenced thereby, or because of any such vote, opinion, action, judgment, or decision, shall be fined not more than two thousand dollars, or imprisoned not more than two years, or both. — (35 Stat., 1112.) Sec. 134. [Witness accepting bribe.] Whoever, being, or about to be, a witness upon a trial, hearing, or other proceeding, before any court or any officer authorized by the laws of the United States to hear evidence or take testimony, shall receive, or agree or offer to receive, a bribe, upon any agreement or under- standing that his testimony shall be influenced thereby, or that he will absent himself from the trial, hearing, or other proceeding, or because of such testi- mony, or such absence, shall be fined not more than two thousand dollars, or imprisoned not more than two years, or both. — (35 Stat., 1113.) Sec. 145. [Extortion by informer.] Whoever shall, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demand or receive any money or other valuable thing, shall be fined not more than two thousand dollars, or imprisoned not more than one year, or both. — (35 Stat., 1114; sec. 5484, R. S.) Sec. 146. [Misprision of felony.] Whoever, having knowledge of the actual commission of the crime of murder or other felony cognizable by the 1336 Criminal Code. rt. 3. STATUTES AT LARGE. Mar. 4, 1909. courts of the United States, conceals and does not as soon as may be disclose and make known the same to some one of the judges or other persons in civil or military authority under the United States, shall be fined not more than five hundred dollars, or imprisoned not more than three years, or both. — (35 Stat., 1114; sec. 5390, R. S.) Chapter Seven. offenses against the currency, coinage, etc. Sec. 178. [Issuing checks, etc., for less than one dollar.] No person shall make, issue, circulate, or pay out any note, check, memorandum, token, or other obligation for a less sum than one dollar, intended to circulate as money or to be received or used in lieu of lawful money of the United States; and every person so offending shall be fined not more than five hundred dollars, or im- prisoned not more than six months, or both. — (35 Stat., 1122; sec. 3583, R. S.) Chapter Eight. offenses against the postal service. Sec 189, 190, 192 193 194 Injuring mail bags, etc. Stealing post-office property. Breaking into and entering post-office. Unlawfully entering postal car, etc. Stealing, secreting, embezzling, etc., mail matter or contents. 195. Postmaster or employee of postal service detaining, destroying, or embezzling letter, etc. 196. Postmaster, etc., detaining or destroying newspapers. 197. Assaulting mail carrier with intent to rob, and robbing mail. 199. Deserting the mail. 201. Obstructing the mail. 207. Collection of unlawful postage forbidden. to Sec. 208. Unlawful pledging or sale of stamps. 209. Failure to account for postage and cancel stamps, etc., by officials. 210. Issuing money order without payment. 211. Obscene, etc., matter nonmailable. 212. Libelous and indecent wrappers and envelopes. 213. Lottery, gift enterprise, etc., circulars, etc., not mailable. 214. Postmasters not to be lottery agents. 217. Poisons and explosives nonmailable. 218. Counterfeiting money orders. 225. Misappropriation of postal funds property. 227. Fraudulent use of official envelopes. 230. Omission to take oath. or Sec. 189. [Injuring mail bags, etc.] Whoever shall tear, cut, or other- wise injure any mail bag, pouch, or other thing used or designed for use in the conveyance of the mail, or shall draw or break any staple or loosen any part of any lock, chain, or strap attached thereto, with intent to rob or steal any such mail, or to render the same insecure, shall be fined not more than five hundred dollars or imprisoned not more than three years, or both. — (35 Stat., 1124; sec. 5476, R. S.) See act of May 27, 1908 (35 Stat., 417-418), and amendments quoted thereunder, as to Navy mail clerks and assistants, their status, duties, etc. Sec. 190. [Stealing, etc., post-office property.] Whoever shall steal, purloin, or embezzle any mail bag or other property in use by or belonging to the Post-Office Department, or shall appropriate any such property to his own or any other than its proper use, or shall convey away any such property to the hindrance or detriment of the public service, shall be fined not more than two hundred dollars, or imprisoned not more than three years, or both. — (35 Stat,, 1124; sec. 5475, R. S.) See note to section 189, above, as to Navy mail clerks. 1337 Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. Sec. 192. [Breaking into post-office.] Whoever shall forcibly break into or attempt to break into any post-office, or any building used in whole or in part as a post-office, with intent to commit in such post-office, or building, or part thereof, so used, any larceny or other depredation, shall be fined not more than one thousand dollars and imprisoned not more than five years. — (35 Stat., 1125; sec. 5478, R. S.) See note to section 189, above, as to Na\'y mail clerks. Sec. 193. [Unlawfully entering compartment of vessel, etc., used BY mail service.] Whoever, by violence, shall enter a post-office car, or any apartment in any car, steamboat, or vessel, assigned to the use of the Mail Service, or shall willfully or maliciously assault or interfere with any postal clerk in the discharge of his duties in connection with such car, steamboat, vessel, or apartment thereof, or shall willfully aid or assist therein, shall be fined not more than one thousand dollars, or imprisoned not more than three years, or both.— (35 Stat., 1125; 32 Stat., 1176.) See note to section 189, above, as to Navy mail clerks. Sec. 194. [Stealing, embezzling, etc., mail matter.] Whoever shall steal, take, or abstract, or by fraud or deception obtain, from or out of any mail, post-office, or station thereof, or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or shall abstract or remove from any such letter, package, bag, or mail, any article or thing contained therein, or shall secrete, embezzle, or destroy any such letter, postal card, package, bag, or mail, or any article or thmg contained therein; or whoever shall buy, receive, or conceal, or aid in buying, receiving, or concealing, or shall unlawfully have in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been so stolen, taken, embezzled, or abstracted; or whoever shall take any letter, postal card, or package, out of any post-office or station thereof, or out of any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post-office or station thereof, or other author- ized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with a design to obstruct the correspondence, or to pry into the business or secrets of another, or shall open, secrete, embezzle, or destroy the same, shall be fined not more than two thou- sand dollars, or imprisoned not more than five years, or both. — (35 Stat., 1125; sees. 3892, 5469, Revised Statutes.) See note to section 189, above, as to Navy mail clerks. Sec. 195. [Postal employee detaining, destroying, or embezzling mail matter.] Whoever, being a postmaster or other person employed in any department of the postal service, shall unlawfully detain, delay, or open any letter, postal card, package, bag, or mail intrusted to him or which shall come into his possession, and which was intended to be conveyed by mail, or carried or delivered by any carrier, messenger, agent, or other person employed in any department of the postal service, or forwarded through or delivered from any post-office or station thereof established by authority of the Postmaster- 1338 Criminal Code. Pt. 3. STATUTES. AT LARGE. Mar. 4, 1909. General; or shall secrete, embezzle, or destroy any such letter, postal card, package, bag, or mail; or shall steal, abstract, or remove from any such letter, package, bag, or mail, any article or thing contained therein, shall be fined not more than five hundred dollars, or imprisoned not more than five years or both.— (35 Stat., 1125-112G; sees. 3890, 3891, 5467, R. S.) See note to section 189, above, as to Navy mail clerks. Sec. 196. [Postal employee detaining, opening, or destroying, etc., NEWSPAPERS IN MAIL.] Wliocvcr, being a postmaster or other person employed in any department of the postal service, shall improperly detain, delay,. embezzle, or destroy any newspaper, or permit any other person to detain, delay, embezzle, or destroy the same, or open, or permit any other person to open, any mail or package of newspapers not directed to the office where he is employed; or who- ever shall open, embezzle, or destroy any mail or package of newspapers not being directed to him, and he not being authorized to open or receive the same; or whoever shall take or steal any mail or package of newspapers from any post- office or from any person having custody thereof, shall be fined not more than one hundred dollars, or imprisoned not more than one year, or both. — (35 Stat., 1126; sec. 5471, R. S.) See note to section 189, above, as to Navy mail clerks. Sec. 197. [Assaulting or robbing mail custodian.] Whoever shall assault any person having lawful charge, control, or custody of any mail matter, with intent to rob, steal, or purloin such mail matter or any part thereof, or shall rob any such person of such mail or any part thereof, shall, for a first offense, be imprisoned not more than ten years; and if in efi^ecting or attempting to effect such robbery, he shall wound the person having custody of the mail, or put his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years. — (35 Stat., 1126; sees. 5472, 5473, R. S.) See note to section 189, above, as to Navy mail clerks. Sec. 199. [Deserting the mail.] Whoever, having taken charge of any mail, shall voluntarily quit or desert the same before he has delivered it into the post-office at the termination of the route, or to some known mail carrier, mes- senger, agent, or other employee in the postal service authorized to receive the same, shall be fined not more than five hundred dollars, or imprisoned not more than one year, or both. — -(35 Stat., 1126; sec. 5474, R. S.) See note to section 189, above, as to Navy mail clerks. Sec. 201. — [Obstructing the mail.] Whoever shall knowingly and will- fully obstruct or retard the passage of the mail, or any carriage, horse, driver, or carrier, or car, steamboat, or other conveyance or vessel carrying the same, shall be fined not more than one hundred dollars, or imprisoned not more than six months, or both.— (35 Stat., 1127; sec. 3995, R. S.) See note to section 189, above, as to Navy mail clerks. Sec. 207. [Collecting unlawful postage.] Whoever, beuig a post- master or other person authorized to receive the postage of mail matter, shall fraudulently demand or receive any rate of postage or gratuity or reward other 54641°— 22 85 1339 Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. than is provided by law for tho postage of such mail matter, shall be fined not more than one hundred dollars, or imprisoned not more than six months, or both.— (35 Stat., 1128; sec. 3899, K. S.) See note to pection 189, above, as to Xavy mail clerks. Sec. 208. [Unlawful pledging or sale of stamps, etc.] Whoever, being a postmaster or other person employed in any branch of the postal service, and being intrusted with the sale or custody of postage stamps, stamped envelopes, or postal cards, shall use or dispose of them in the payment of debts, or in the purchase of merchandise or other salable articles, or pledge or hypoth- ecate the same, or sell or dispose of them except for cash; or sell or dispose of postage stamps or postal cards for any larger or less sum than the values indi- cated on their faces; or sell or dispose of stamped envelopes for a larger or less sum than is charged therefor by the Post-Ofhce Department for like quantities; or sell or dispose of, or cause to be sold or disposed of, postage stamps, stamped envelopes, or postal cards at any point or place outside of the delivery of the ofhce where such postmaster or other person is employed ; or induce or attempt to induce, for the pm-pose of increasing the emoluments or compensation of such postmaster, or the emoluments or compensation of any other person employed in such post-office or any station thereof, or the allowances or facilities provided therefor, any person to purchase at such post-office or any station thereof, or from any employee of such post-office, postage stamps, stamped envelopes, or postal cards; or sell or dispose of postage stamps, stamped envelopes, or postal cards, otherwise than as provided by law" or the regulations of the Post- Office Department, shall be fined not more than five hundred dollars, or impris- oned not more than one year, or both. — (35 Stat., 1128; sec. 3920, R. S.) See note to section 189, above, as to Naw mail clerks. Sec. 209. [Failing to account for postage due, etc.] Whoever, being a postmaster or other person engaged in the postal service, shall collect and fail to account for the postage due upon any article of mail matter which he VH2LJ deliver, without having previously affixed and canceled the special stamp provided by law, or shall fail to affix such stamp, sliall be fined not more than fifty dollars.— (35 Stat., 1128-1129; 20 Stat., 362.) See note to section 189, above, as to Nav>' mail clerks. ' Sec. 210. [IssL^NG unpaid-for money orders.] Wlioever, being a postmaster or other person employed in any branch of the postal service, shall issue a money order without having previously received the money therefor, shall be fined not more than five hundred dollars. — (35 Stat., 1129; sec. 4030, R. S.) See note to section 189, above, as to Navy mail clerks. Sec. 211. [Obscene matter unmailable; inciting arson, murder, ETC.] Every obscene, lewd, or lascivious, and every filthy, book, pamplilet, picture, paper, letter, writing, print, or other publication of an indecent charac- ter, and every article or thing designed, adapted, or intended for preventing conception or producing abortion, or for any indecent or immoral use; and every article, instrument, substance, drug, medicine, or tiling which is advertised or 1340 Criminal Code. PL 3. STATUTES AT LARGE. Mar. 4, 1909. described in a manner calculated to lead another to use or apply it for prevent- ing conception or producing abortion, or for any indecent or immoral purpose; and every Mo-itten or printed card, letter, circular, book, pamphlet, advertise- ment, or notice of any kind giving information directly or indirectly, where, or how, or from whom, or by what means any of the hereinbefore-mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means conception may be prevented or abortion produced, whether sealed or unsealed; and every letter, packet, or package, or other mail matter containing any filthy, vile, or indecent thing, device, or substance; and every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can be, used or applied for preventing conception or producing abortion, or for any indecent or immoral purpose; and every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing, is hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever shall knowingly deposit, or cause to be deposited for mailing or delivery, anything declared by this section to be nonmailable, or shall knowingly take, or cause the same to be taken, from the mails for the purpose of circulating or dis- posing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both. And the term "indecent" witliin the intendment of this section shall include matter of a character tending to incite arson, murder, or assas- sination.— (35 Stat., 1129; 25 Stat., 496; sec. 3893, R. S.; 36 Stat., 1339.) Amendment to this section was made by act of March 4, 1911 (36 Stat., 1339), which added thereto the last sentence above set forth. See acts of July 31, 1912 (37 Stat., 240-241); and June 15, 1917 (40 Stat., 230-231). Sec. 212. [Libelous or indecent matter on wrappers, etc.] All matter otherwise mailable by law, upon the envelope or outside cover or ^vrap- per of which, or any postal card upon wliich, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, obscene, libelous, scurrilous, de- famatory, or threatening character, or calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another, may be written or printed or otherwise impressed or apparent, are hereby declared nonmailable matter, and shall not be conveyed in the mails nor delivered from any post-office nor by any letter carrier, and shall be withdrawn from the mails under such regulations as the Postmaster-General shall prescribe. Whoever shall knowingly deposit or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable matter, or shall knowingly take the same or cause the same to be taken from the mails for the purpose of circulating or disposing of or aiding in the circula- tion or disposition of the same, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both.— (35 Stat., 1129; 25 Stat., 496.) Sec. 213. [Lottery circui^vrs, etc., not mailable.] No letter, package, postal card, or circular concerning any lottery, gift enterprise, or similar scheme 1341 Punishment for mailing threats against the President: See act of February 14, 1917 (39 Stat., 919). Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. olTering prizes dependent in wliole or in part upon lot or chance; and no lottery ticket or part thereof, or paper, certificate, or instrument purporting to be or to represent a ticket, chance, share, or interest in or dependent upon the event of a lottery, gift enterprise, or similar scheme offering prizes dependent in whole or in part upon lot or chance; and no check, draft, hill, money, postal note, or money order, for the purchase of any ticket or part thereof, or of any share or chance in any such lottery, gift enterprise, or scheme; and no newspaper, circular, pamplilet, or publication of any kind containing any advertisement of any lottery, gift enterprise, or scheme of any kind offering prizes dependent in whole or in part upon lot or chance, or containing any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes, shall be deposited in or carried by the mails of the United States, or be delivered by any postmaster or letter carrier. Whoever shall knowingly deposit or cause to be deposited, or shall knowingly send or cause to be sent, anything to be conveyed or delivered by mail in violation of the provisions of this section, or shall knowingly deliver or cause to be delivered by mail anything herein forbidden to be carried by mail, shall be fined not more than one thousand dollars, or imprisoned not more than two years, or both; and for any subsequent offense shall be imprisoned not more than five years. Any person violating any provision of this section may be tried and punished either in the district in which the unlawful matter or publi- cation was mailed, or to which it was carried by mail for delivery according to the direction thereon, or in wliich it was caused to be delivered by mail to the person to whom it was addressed.— (35 Stat., 1129-1130; sec. 3894, K. S.; 26 Stat., 465; 28 Stat., 963.) Sec. 214. [Postal employee selling or delivering lottery tickets, ETC.] Whoever, being a postmaster or other person employed in the postal service, shall act as agent for any lottery office, or under color of purchase or otherwise, vend lottery tickets, or shall knowingly send by mail or deliver any letter, package, postal card, circular, or pamphlet advertising any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any ticket, certificate, or instrument representing any chance, share, or interest in or dependent upon the event of any lottery, gift enterprise, or similar scheme offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes awarded by means of any such scheme, shall be fined not more than one hundred dollars, or imprisoned not more than one year, or both.— (35 Stat., 1130; sec. 3851, R. S.) See note to section 189, above, as to Navy mail clerks. Sec 217. [Poisons, explosives, intoxicants, etc., nonivlulable.] That all kinds of poison, and all articles and compositions containing poison, and all poisonous animals, insects, and reptiles, and explosives of all kinds, and inflam- mable materials, and infernal machines, and mechanical, chemical, or other devices or compositions which may ignite or explode, and all disease germs or scabs, and all other natural or artificial articles, compositions, or materials, of whatever kuid, which may kill or in anywise hurt, harm, or injure another or damage, deface, or otherwise injure the mails or other property, whether sealed as first-class matter or not, are hereby declared to be nonmailable matter, and 1342 Criminal Code. PL 3. STATUTES AT LARGE. Mar. 4, 1909. shall not be conveyed in the mails or delivered from any post office or station thereof, nor by any letter carrier; but the Postmaster General may permit the transmission in the mails, from the manufacturer thereof or dealer therein to licensed physicians, surgeons, dentists, pharmacists, druggists, and veterinarians, under such rules and regulations as he shall prescribe, of any articles herein- before described which arc not outwardly or of their own force dangerous or injurious to life, health, or propert}^: Provided, That all spirituous, vinous, malted, fermented, or other intoxicating liquors of any kind are hereby de- clared to be nonmailable, and shall not be deposited in or carried through the mails. Whoever shall knowingly deposit or cause to be deposited for mailing or delivery, or shall knowingly cause to be delivered by mail, according to the direction thereon or at any place at which it is directed to be delivered by the person to .whom it is addressed, anj^thing declared by this section to be non- mailable, unless in accordance with the rules and regulations hereby authorized to be prescribed by the Postmaster General, shall be fined not more than $1,000 or imprisoned not more than two years, or both; and whoever shall knowingly deposit or cause to be deposited for mailing or delivery, or shall knowingly cause to be delivered by mail, according to the direction thereon or at any place to which it is directed to be delivered by the person to whom it is ad- dressed, anything declared by this section to be nonmailable, whether trans- mitted in accordance with the rules and regulations authorized to be prescribed by the Postmaster General or not, with the design, intent, or purpose to kill or in anywise hurt, harm, or injure another, or damage, deface, or otherwise injure the mails or other property, shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. — (35 Stat., 1131; 41 Stat., 620-621.) This section waa expressly amended and re- enacted to read ae above by act of May 25, 1920 (41 Stat., 620-621). Restrictions on the mailing of advertisements or orders for intoxicants ^vere prescril^ed bv act of March 3, 1917 (39 Stat., 1069), as amended by acts of October 3, 1917 (40 Stat., 329), and Februarv 24, 1919 (40 Stat., 1151). See sections 232 and 235, below, as to trans- portation of explosives. Sec. 218. [Forging money orders or signatures thereon, etc.] Wlio- ever, with intent to defraud, shall falsely make, forge, counterfeit, engrave, or print, or cause or procure to be falsely made, forged, counterfeited, engraved, or printed, or shall willingly aid or assist in falsely making, forging, counter- feiting, engraving, or printmg, any order in imitation of or purporting to be a money order issued by the Post-Office Department, or by any postmaster or agent thereof; or whoever shall forge or counterfeit the signature of any post- master, assistant postmaster, chief clerk, or clerk, upon or to any money order, or postal note, or blank therefor provided or issued by or under the direction of the Post-Office Department of the United States, or of any foreign country, and payable in the United States, or any material signature or indorsement thereon, or any material signature to any receipt or certificate of identification thereon; or shall falsely alter, or cause or procure to be falsely altered in any material respect, or knowingly aid or assist in falsely so altering any such money order or postal note; or shall, with intent to defraud, pass, utter, or publish any such forged or altered money order or postal note, knowing any material signa- ture or indorsement thereon to be false, forged, or counterfeited, or any material 1343 Mar. 4, 1909. Pt. 3. STATUTES AT LARGE. Criminal Code. alteration therein to have been falsely made; or shall issue any money order or postal note without having previously received or paid the full amount of money payable therefor, with the purpose of fraudulently obtaining or receiving, or fraudulently enabling any other person, either directly or indirectly, to obtain or receive from the United States, or any officer, employee, or agent thereof, any sum of money whatever; or shall, with intent to defraud the United States, or any person, transmit or present to, or cause or procure to be transmitted or presented to, any officer or employee, or at any office of the Government of the United States, any money order or postal note, knowing the same to contain any forged or counterfeited signature to the same, or to any material indorse- ment, receipt, or certificate thereon, or material alteration therein unlawfully made, or to have been unlawfully issued without previous payment of the amount required to be paid upon such issue, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both. — (35 Stat., 1131-1132; 24 Stat., 355; 25 Stat., 187; sec. 5463, R. S.] See note to section 189, above, as to Navy mail clerks. Sec. 225. [Misappropriating postal funds, etc.] Whoever, being a postmaster or other person employed in or connected with any branch of the postal service, shall loan, use, pledge, hypothecate, or convert to his own use, or shall deposit in any bank, or exchange for other funds or property, except as authorized by law, any money or property coming into his hands or under his control m any manner whatever, in the execution or under color of his office, employment, or service, whether the same shall be the money or property of the United States or not; or shall fail or refuse to remit to or deposit in the Treasury of the United States or in a designated depository, or to accomit for or turn over to the proper officer or agent, any such money or property, when required so to do by law or the regulations of the Post-Office Department, or upon demand or order of the Postmaster-General, either directly or through a duly authorized officer or agent, shall be deemed guilty of embezzlement; and every such person, as well as every other person advising or knowingly partici- pating therein, shall be fined in a sum equal to the amount or value of the money or property embezzled or imprisoned not more than ten years, or both. Any failure to produce or to pay over any such money or property, when reqmred so to do as above provided, shall be taken to be prima facie evidence of such embezzlement; and upon the trial of any indictment against any person for such embezzlement it shall be prima facie evidence of a balance against him to produce a transcript from the account books of the Auditor for the Post-Office Department. But nothing herein shall be construed to prohibit any post- master depositing, under the direction of the Postmater-General, in a national bank designated by the Secretary of the Treasury for that purpose, to his own credit as postmaster, any funds in his charge, nor prevent his negotiating drafts or other evidences of debt through such bank, or through United States disbursing officers, or otherwise, when instructed or required so to do by the Postmaster-General, for the purpose of remitting surplus funds from one post- office to another.— (35 Stat., 1133-1134; sees. 4046, 4053.) See note to section 189, above, as to Navy mail clerks. 1344 Criminal Code. Pt. 3. STATUTES AT LARGE. Mar. 4, 1909. Sec. 227. [Fraudulent use of official envelopes.] Whoever shall make use of any official envelope, label, or indorsement authorized by law, to avoid the payment of postage or registry fee on his private letter, packet, package, or other matter in the mail, shall be fined not more than three hun- dred dollars.— (35 Stat., 1134; 19 Stat., 335.) See act of March 3, 1877 (19 Stat., 335-336); and see laws noted under sections 388 and 398, Re\'ised Statutes. Sec. 230. [Omission to take oath.] Every person employed in the Postal Service shall be subject to all penalties and forfeitures for the violation of the laws relating to such service, whether he has taken the oath of office or not.— (35 Stat., 1134; sec. 3832, R. S.) See note to section 189, above, as to Navy mail clerks; see also sections 391-392, Revised Statutes, and notes thereto. Chapter Nine, offenses against foreign and interstate commerce. Sec. 232. Dynamite, etc., not to be carried on ves- sels or vehicles carrying passengers for hire. 235. Marking of packages of explosives; decep- tive marking. '■b- Sec. 237. Importation and transportation of lottery tickets, etc., forbidden. 245. Importation and transportation of obscene, etc., books, etc. Sec. 232. [Explosives, transportation; naval forces, etc.] It shall be unlawful to transport, carry, or convey, within the limits of the jurisdiction of the United States, any high explosive, such as, and including, dynamite, blasting caps, detonating fuzes, black powder, gunpowder, or other like ex- plosive, on any vessel, car, or vehicle of any description operated in the trans- portation of passengers by a common carrier engaged in interstate or foreign commerce, which vessel, car, or vehicle is carrying passengers for hire: Pro- vided, That it shall be lawful to transport on any such vessel, car, or vehicle smokeless powder, primers, fuses, not including detonating fuzes, fireworks, or other similar explosives, and properly packed and marked samples of explo- sives for laboratory examination, not exceeding a net weight of one-half pound each, and not exceeding twenty samples at one time in a single vessel, car, or vehicle ; but such explosives shall not be carried in that part of a vessel, car, or vehicle which is being used for the transportation of passengers for hire : Pro- vided further, That it shall be lawful to transport on any such vessel, car, or vehicle small-arms ammunition in any quantity, and such fusees, torpedoes, rockets, or other signal devices as may be essential to promote safety in opera- tion: And provided further, That nothing in this section shall be construed to prevent the transportation of military or naval forces with their accompanying munitions of war on passenger-equipment vessels, cars, or vehicles. The words 'detonating fuzes," as used in this section shall be interpreted to mean fuzes used in naval or military service to detonate the high explosive bursting charges of projectiles, mines, bombs, or torpedoes. The word "fuses" as used herein shall be interpreted to mean devices used in igniting the bursting charges of projectiles. The word "primers" as used herein shall be interpreted to mean devices used in igniting the propelling powder charges of ammunition. Ie345 Mar. 4, 1909. Pi. .>'. STA TUTES A T LARGE. Criminal Code. The word "fuses" as used herein shall be interpreted to mean the slow-burning fuses used commercially and intended to convey lire to an explosive or com- bustible mass slowly or without danger to the person lighting. The word "fusees" as used herein shall be interpreted to mean the fusees ordinarily used on steamboats and railroads as night signals. — (35 Stat., 1134-1135; sec. 5353, R. S.; 35 Stat., 554; 41 Stat., 1444.) This section was expressly amended and reenacted to read as above by act of March 4, 1921 (41 Stat., 1444). Sec. 235. [Marking packages of explosives; penalty for violating PRECEDING SECTIONS.] Every package containing explosives or other dangerous articles when presented to a common carrier for shipment shall have plainly marked on the outside thereof the contents thereof; and it shall be unla^vful for any person to deliver, or cause to be delivered, to any common carrier engaged in interstate or foreign commerce by land or water, or to carry upon any vessel, car, or vehicle operated by any common carrier engaged in interstate or foreign commerce by land or water any explosive, or other dangerous article, as speci- fied in section 233 of this Act, under any false or deceptive marking, description, invoice, shipping order, or other declaration, or without informing the agent of such carrier in writing of the true character thereof, at or before the time such delivery or carriage is made. Whoever shall knowingly violate, or cause to be violated, any provision of this section, or of the three sections last preceding, or any regulation made by the Interstate Commerce Commission in pursuance thereof, shall be fined not more than $2,000 or imprisoned not more than eighteen months, or both. — (35 Stat., 1135; 35 Stat., 555; sec. 5355, R. S. ; 41 Stat., 1445.) This section was expressly amended and reenacted to read as above by act of March 4, 1921 (41 Stat., 1445). Sec. 237. [Importing, epc, lottery tickets, etc.] Whoever shall bring or cause to be brought into the United States or any place subject to the juris- diction thereof, from any foreign country, for the purpose of disposing of the same, any paper, certificate, or instrument purporting to be or to represent a ticket, chance, share, or interest in or dependent upon the event of a lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any advertisement of, or list of the prizes drawn or awarded by means of, any such lottery, gift enterprise, or similar scheme; or shall therein knowingly deposit or cause to be deposited with any express com- pany or other common carrier for carriage, or shall carry, from one State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, to any other State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any place in or subject to the jurisdiction of the United States through a foreign country to any place in or subject to the jurisdiction thereof, or from any place in or subject to the jurisdiction of the United States to a foreign country, any paper, certificate, or instrument purporting to be or to represent a ticket, chance, share, or interest in or dependent upon the event of any such lottery, gift enterprise, or similar scheme, or any advertisement of, or list of the prizes drawn or awarded by means of, any such lottery, gift enterprise, or 1346 Criminal Code. Ft. 3. STATUTES AT LARGE. Mar. 4, 1909. similar scheme, or shall knowingly take or receive, or cause to be taken or received, any such paper, certificate, instrument, advertisement, or list so brought, deposited, or transported, shall, for the first offense, be fined not more than one thousand dollars, or imprisoned not more than two years, or both; and for any subsequent offense shall be imprisoned not more than two years. — (35 Stat., 1136; 28 Stat., 963.) Sec. 245. [Importing or transporting obscene books, etc.] Whoever shall bring or cause to be brought into the United States, or any place subject to the jurisdiction thereof, from any foreign country, or shall therein know- ingly deposit or cause to be deposited with any express company or other common carrier, for carriage from one State, Territory, or District of the United States or place noncontiguous to but subject to the jurisdiction thereof, to any other State, Territory, or District of the United States, or place non- contiguous to but subject to the jurisdiction thereof, or from any place in or subject to the jurisdiction of the United States, through a foreign country, to any place in or subject to the jurisdiction thereof, or from any place in or sub- ject to the jurisdiction of the United States to a foreign country, any obscene, lewd, or lascivious, or any filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character, or any drug, medicine, article, or thing designed, adapted, or intended for preventing con- ception, or producing abortion, or for any indecent or immoral use; or any -writ- ten or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, w^here, how, or of whom, or by what means any of the hereinbefore mentioned articles, matters, or things may be obtained or made; or whoever shall knowingly take or cause to be taken from such express company or other common carrier any matter or thing the depositing of which for carriage is herein made unla^^^"ul, shall be fined not more than $5,000 or imprisoned not more than five years, or both. — (35 Stat., 1138; 33 Stat., 705; 29 Stat., 512; 41 Stat., 1060-1061.) This section was expressly amended and reenacted to read as al)ove bv act of June 5, 1920 (41 Stat., 1060-106 1).' Chapter Ten. the slave trade and peonage. Sec. 260. Seizure of vessels engaged in the slave trade. Sec. 267. Instructions to commanders of armed vessels. Sec. 260. [Seizure of vessels in slave trade; use of naval FORCES.] The President is authorized, when he deems it expedient, to man and employ any of the armed vessels of the United States to cruise wherever he may judge attempts are making to carry on the slave trade, by citizens or residents of the United States, in contravention of laws prohibitory of the same; and, in such case, he shall instruct the commanders of such armed ves- sels to seize, take, and bring into any port of the United States, to be pro- ceeded against according to law, all American vessels wheresoever found, which may have on board, or which may be intended for the purpose of taking on board, or of transporting, or may have transported any person, in violation 1347 Mar. 4, 1909. Pt. 3. STA TUTES A T LARGE. Criminal Code. of the provisions of any Act of Congress prohibiting the traffic in slaves. — (35 Stat., 1140-1141; sec. 5557, R. S.) Sec. 267. [Instructions to commanders of armed vessels.] The President is authorized to issue instructions to the commanders of the armed vessels of the United States, directing them, whenever it is practicable, and under such rules and regulations as he may prescribe, to proceed directly to the country from which they were taken, and there hand over to the agent of the United States all such persons, delivered from on board vessels seized in the prosecution of the slave trade; and they shall afterwards bring the cap- tured vessels and persons engaged in prosecuting such trade to the United States for trial and adjudication. — (35 Stat., 1141; sec. 5567, R. S.) Chapter Eleven. offenses within the admiralty and maritime and the territorial [or exclusive] jurisdiction of the UNITED STATES. Sec. 272. Places within or waters upon which sec- tions of this chapter shall apply. 273. Murder. 274. Manslaughter. 275. Punishment for murder; for manslaughter. 276. Assault with intent to commit murder, etc. 277. Attempt to commit murder or man- slaughter. 278. Rape.' 279. Having carnal knowledge of female under sixteen. Sec. 283. Maiming. 284. Robbery. 285. Arson of dwelling house. 286. Arson of other buildings, etc. 287. I.arceny. 288. Receiving, etc., stolen goods. 289. Laws of States adopted for punishing \vrongful acts, etc. Sec. 272. [Places within or waters upon which this chapter SHALL APPLY.] The crimcs and offenses defined in this chapter shall be pun- ished as herein prescribed : First. When committed upon the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States and out of the juris- diction of any particular State, or when committed within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State on board any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, or District thereof. Second. When committed upon any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, namely: Lake Superior, Lake IMichigan, Lake Huron, Lake Saint Clair, Lake Erie, Lake Ontario, or any of the waters connecting any of said lakes, or upon the River Saint Lawrence where the same constitutes the International boundary line. Third. When committed within or on any lands reserved or acquired for the exclusive use of the United States, and under the exclusive jurisdiction thereof, or any place purchased or otherwise acc^uired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dock-yard, or other needful building. Fourth. On any island, rock, or key, containing deposits of guano, wliich may, at the discretion of the President, be considered as appertaining to the United States.— (35 Stat., 1142-1143; sec. 5339, R. S.; 26 Stat., 424.) 1348 Criminal Code. Ft. 3. STATUTES AT LARGE. Mar. 4, 1909. Sec. 273. [Murder defined.] Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any ar- son, rape, burglary, or robbery; or perpetrated from a premeditated design unlawH^ully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree. (35 Stat., 1143.) Sec. 274. [Manslaughter defined.] Manslaughter is the unlawful kill- ing of a human being without malice. It is of two kinds: First. Voluntary — Upon a sudden Cjuarrel or heat of passion. Second. Involuntary — In the commission of an unlawful act not amounting to a felony, or in the commission of a la\\'ful act wliich might produce death, in an unla^\^'ul manner, or without due caution and circumspection. — (35 Stat., 1143; sec. 5341, R. S.) Sec. 275. [Punishment for murder and manslaughter.] Every person guilty of murder in the first degree shall suffer death. Every person guilty of murder in the second degree shall be imprisoned not less than ten 3'ears and may be imprisoned for life. Every person guilty of voluntary man- slaughter shall be imprisoned not more than ten years. Every person guilty of involuntary manslaughter shall be imprisoned not more than three years, or fined not exceeding one thousand dollars, or both. — (35 Stat., 1143; sees. 5339, ,5343, R. S.) Sec. 276. [Assaih.t with intent to commit murder, etc.] Whoever shall assault another with intent to commit murder, or rape, shall be imprisoned not more than twenty years. Whoever shall assault another with intent to commit any felony, except murder, or rape, shall be fined not more than three thousand dollars, or imprisoned not more than ten years, or both. ^Yhoever, with intent to do bodily harm, and without just cause or excuse, shall assault another with a dangerous weapon, instrument, or other thing, shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both. Whoever shall unlawfully strike, beat, or wound another, shall be fined not more than five hundred dollars, or imprisoned not more than six months, or both. Whoever shall unlawfully assault another, shall be fined not more than three hundred dollars, or imprisoned not more than three months, or both.— (35 Stat., 1143; sec. 5346, R. S.) Sec. 277. [Attempt to commit murder or manslaughter.] Wlio- ever shall attempt to commit murder or manslaughter, except as provided in the preceding section, shall be fined not more than one thousand dollars and imprisoned not more than three years. — (35 Stat., 1143; sec. 5342, R. S.) Sec. 278. [Rape.] Whoever shall commit the crime of rape shall suffer death.— (35 Stat., 1143; sec. 5345, R. S.) Sec. 279. [Having carnal knowledge of female under sixteen.] "Wlioever shall carnally and unhiAA^ully know any female under the age of six- teen years, or shall be accessory to such carnal and unlawful knowledge before the fact, shall, for a first offense, be imprisoned not more than fifteen years, and for a subsecjuent offense be imprisoned not more than thirty years. — (35 Stat., 1143; 25 Stat., 658.) 1349 Mar. 4, 1909. Pt. S. STATUTES AT LARGE. Criminal Code. Sec. 283. [Maiming, etc.] Whoever, with intent to maim or disfigure, shall cut, bite, or slit, the nose, ear, or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person; or whoever, with like intent, shall throw or pour upon another person, any scalding hot water, vitriol, or other corrosive acid, or caustic substance whatever, shall be fined not more than one thousand dollars, or imprisoned not more than seven years, or both. — (35 Stat., 1144; sec. 5348, R. S.) Sec. 284. [Robbery.] Wlioever, by force and violence, or by putting in fear, shall feloniously take from the person or presence of another anything of value, shall be imprisoned not more than fifteen years. — (35 Stat., 1144.) Sec. 285. [Arson of dwelling house.] Whoever shall willfully and mali- ciously set fire to, burn, or attempt to burn, or by means of a dangerous explo- sive destroy or attempt to destroy, any dwelling house, or any store, barn, stable, or other building, parcel of a dw^elling house, shall be imprisoned not more than twenty years. — (35 Stat., 1144; sec. 5385, R. S.) Sec. 286. [Arson of other BL^LDINGS, etc.] WTioever shall maliciously set fire to, burn, or attempt to burn, or by any means destroy or injure, or attempt to destroy or injure, any arsenal, armory, magazine, ropewalk, ship house, warehouse, blockliouse, or barrack, or any storehouse, barn, or stable, not parcel of a dwelling house, or any other building not mentioned in the sec- tion last preceding, or any vessel built, building, or undergoing repair, or any light-house, or beacon, or any machinery, timber, cables, rigging, or other materials or appliances for building, repairing, or fitting out vessels, or any pile of wood, boards, or other lumber, or any military, naval, or victualing stores, arms, or other munitions of w^ar, shall be fined not more than five thou- sand dollars and imprisoned not more than twenty years. — (35 Stat., 1144; sees. 5386, 5387, R. S.) See section 301, below. Sec. 287. [Larceny; value of written instrument.] Whoever shall take and carry away, with intent to steal or purloin, any personal property of another, shall be punished as follows : If the property taken is of a value exceed- ing fifty dollars, or is taken from the person of another, by a fine of not more than ten thousand dollars, or imprisonment for not more than ten years, or both; in all other cases, by a fine of not more than one thousand dollars, or by imprisonment not more than one year, or both. If the property stolen consists of any evidence of debt, or other ^^Titten instrument, the amount of money due thereon, or secured to be paid thereby, and remaining unsatisfied, or which in any contingency might be collected thereon, or the value of the property the title to which is sho^\Ti thereby, or the sum which might be recovered in the absence thereof, shall be deemed to be the value of the property stolen. — (35 Stat., 1144-1145; sec. 5356, R. S.) Sec. 288. [Receiving stolen goods, etc.] Wlioever shall buy, receive, or conceal, any money, goods, bank notes, or other thing which may be the sub- ject of larceny, which has been feloniously taken, stolen, or embezzled, from any other person, knowing the same to have been so taken, stolen, or embezzled, shall be fined not more than one thousand dollars and imprisoned not more than 1360 Criminal Code. Pt. 3. STATUTES AT LARGE. Mar. 4, 1909. thi"ee years ; and such person may be tried either before or after the conviction of the principal offender. — (35 Stat., 1145; sec. 5357, R. S.) See section 334, below. Sec. 289. [State laws adopted in Federal reservations.] Whoever, within the territorial limits of any State, organized Territory, or District, but within or upon any of the places now existing or hereafter reserved or acquired, described in section two hundred and seventy-two of this Act, shall do or omit the doing of any act or thing which is not made penal by any law of Congress, but which if committed or omitted within the jurisdiction of the State, Terri- tory, or District in which such place is situated, by the laws thereof now in force would be penal, shall be deemed guilty of a like offense and be subject to a like punishment; and every such State, Territorial, or District law shall, for the purposes of this section, continue in force, notwithstanding any subsequent repeal or amendment thereof by any such State, Territory or District. — (35 Stat., 1145; sec. 5391, R. S.; 30 Stat., 717.) Chapter Twelve. PIRACY and other OFFENSES UPON THE SEAS. Sec. 290. 291. 292. 293. 294. Piracy under the law of nations. Maltreatment of crew by officers of vessel. Inciting revolt or mutiny on shipboard. Revolt and mutiny on shipboard. Seaman laying \'iolent hands on his com- mander. Sec. 295. 297. 299. 301. 310. Abandonment of mariners in foreign ports. Plundering vessel in distress, etc. Breaking and ent<>ring vessel, etc. Other person destroying or attempting to destroy vessel at sea. "Vessels of the United States" defined. Sec. 290. [Piracy.] Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life. — (35 Stat., 1145; sec. 5368, R. S.) See section 294, below. Sec. 291. [Maltreatment of crew by officers.] Whoever, being the master or officer of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, beats, wounds, or without justifiable cause, imprisons any of the crew of such vessel, or withholds from them suitable food and nourishment, or infhcts upon them any cruel and unusual punisliment, shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both. * * *^ —(35 Stat., 1145; 29 Stat., 691; sec. 5347, R. S.) See section 310, below, for definition of "vessel of the United States." Sec. 292. [Inciting revolt or mutiny on sihpboard.] Whoever, being of the crew of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, endeavors to make a revolt or mutiny on board such vessel, or combines, con- spires, or confederates with any other person on board to make such revolt or mutiny, or solicits, incites, or stirs up any other of the crew to disobey or resist the lawful orders of the master or other officer of such vessel, or to refuse or neglect their proper duty on board thereof, or to betray their proper trust, or 1351 Mar. 4, 1909. Pi. S. STATUTES AT LARGE. Ciiminal Code. assembles with others in a tumultuous and mutinous manner, or makes a riot on board thereof, or unlawfully confines the master or other commanding officer thereof, shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both. — (35 Stat., 114G; sec. 5359, R. S.) See section 310, below, for definition of "vessel of the United States." Sec. 293. [Revolt or mutiny on sinPBOARD.] Wlioever, being of the crew of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, unlaw- fidly and with force, or by fraud, or intimidation, usurps the command of such vessel from the master or other lawful officer in command thereof, or deprives him of authority and command on board, or resists or prevents him in the free and laA\dful exercise thereof, or transfers such authority and command to another not lawfully entitled thereto, is guilty of a revolt and mutiny, and shall be fined not more than two thousand dollars and imprisoned not more than ten years.— (35 Stat., 1146; sec. 5360, R. S.) See section 310, below, for definition of "vessel of the United States." Sec. 294. [Seaman laying hands on commander.] Wlioever, being a seaman, lays violent hands upon his commander, thereby to hinder and prevent his fighting in defense of his vessel or the goods intrusted to him, is a pirate, and shall be imprisoned for life. — (35 Stat., 1146; sec. 5369, R. S.) Sec. 295. [Abandonment of mariner in foreign port.] Whoever, being master or commander of a vessel of the United States, while abroad, maliciously and without justifiable cause forces any oflficer or mariner of such vessel on shore, in order to leave him behind in any foreign port or place, or refuses to bring home again all such officers and mariners of such vessel whom he carried out with him, as are in a condition to return and willing to return, when he is ready to proceed on his homeward voyage, shall be fined not more than five hundred dollars, or imprisoned not more than six months, or both. — (35 Stat., 1146; sec. 5363, R. S.) See section 310, below, for definition of "vessel of the United States." Sec. 297. [Plundering vessel in distress, etc.] Whoever plunders, steals, or destroys any money, goods, merchandise, or other effects, from or belonging to any vessel in distress, or wrecked, lost, stranded, or cast away, upon the sea, or upon any reef, slioal, bank, or rocks of the sea, or in any other place within the admiralty and maritime jurisdiction of the United States, shall be fined not more than five thousand dollars and imprisoned not more than ten years ; and whoever willfully obstructs the escape of any person endeav- oring to save his life from such vessel, or the wTeck thereof; or whoever holds out or shows any false light, or extinguishes any true light, with mtent to bring any vessel sailing upon the sea into danger, or distress, or shipwreck, shall be imprisoned not less than ten years and may be imprisoned for life. — (35 Stat., 1146; sec. 5358, R. S.) See section 1536, Revised Statutes, and act of August 1, 1912 (37 Stat., 242). Sec. 299. [Breaking and entering vessel, etc.] Whoevc-r, upon the high seas or on any other waters within the admiralty and maritime juris- diction of the United States, and out of the jurisdiction of any particular State, 1352 Criminal Code. Pt. S. STATUTES AT LARGE. Mar. 4, 1909. breaks or enters any vessel, with intent to commit any felony, or maliciously cuts, spoils, or destroys any cordage, cable, buoys, buoy-rope, head-fast, or other fast, fixed to the anchor or moorings belonging to any vessel, shall be fined not more than one thousand dollars and imprisoned not more than five years.— (35 Stat., 1147; sec. 5362, R. S.) Sec. 301. [Destroying vessel, etc.] Whoever, not being an owner, upon the high seas or on any other waters within the admiralty and maritime jurisdiction of the United States, willfully and corruptly casts away or other- wise destroys any vessel of the United States to which he belongs, or, willfully, with intent to destroy the same, sets fire to any such vessel, orother\vise attempts the destruction thereof, shall be imprisoned not more than ten years. — (35 Stat., 1147; 28 Stat., 233; sees. 5366, 5367, R. S.) See section 286, above, as to arson of vessel. See section 310, below, for definition of " vessel of the United States." Sec. 310. ["Vessel of the united states," defined.] The words "vessel of the United States" wherever they occur in this chapter shall be construed to mean a vessel belonging in whole or in part to the United States, or any citizen thereof, or any corporation created by or under the laws of the United States or of any State, Territory, or District thereof. — (35 Stat., 1148.) Chapter Thirteen. certain offenses in the territories [or elsewhere within exclusive jurisdiction of the united states]. THE Sec. 311. Places within which sections of this chapter shall apply. 312. Circulation of obscene literature; pro- moting abortion. Sec. 314. Unlawful cohabitation. 316. Adultery. 317. Incest. 318. Fornication. Sec. 311. [Places within which Tins chapter shall apply.] Except as otherwise expressly provided, the offenses defined in tliis chapter shall be punished as hereinafter provided, when committed within any Territory or District, or within or upon any place within the exclusive jurisdiction of the United States.— (35 Stat., 1148-1149.) Sec. 312. [Circulating obscene literature, etc.] Wlioever shall sell, lend, give away, or in any manner exhibit, or offer to sell, lend, give away, or in any manner exhibit, or shall otherwise publish or offer to publish in any manner, or shall have in his possession for any such purpose, any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article of an immoral nature, or any drug or medi- cine, or any article whatever, for the prevention of conception, or for causing unlawful abortion, or shall advertise the same for sale, or shall wTite or print, or cause to be written or printed, any card, circular, book, pamplilet, adver- tisement, or notice of any kind, stating when, where, how, or of whom, or what means, any of the articles above mentioned can be purchased or obtained, or shall manufacture, draw, or print, or in anywise make any of such articles, shall be fined not more than two thousand dollars, or imprisoned not more than five years, or both. — (35 Stat., 1149; sec. 5389, R. S.) 1353 Mar. 4, 1909. Pt. S. STATUTES AT LARGE. Criminal Code. Sec. 314. [Unlawful cohabitation.] If any male person cohabits with more than one woman, he shall be fined not more than tliree hundred dollars, or imprisoned not more than six months, or both. — (35 Stat., 1149; 22 Stat., 31.) Sec. 3160. [Adultery.] Whoever shall commit adultery shall be im- prisoned not more than three years; and when the act is committed between a married woman and a man who is unmarried, both parties to such act shall be deemed guilty of adultery; and when such act is committed between a married man and a woman who is unmarried, the man shall be deemed guilty of adultery. —(35 Stat., 1149; 24 Stat., 635.) Sec. 317. [Incest.] Whoever, being related to another person within and not including the fourth degree of consanguinity computed according to the rules of the civil law, shall marry or cohabit with, or have sexual inter- course with such other so related person, knowing her or him to be within said degree of relationship, shall be deemed guilty of incest, and shall be imprisoned not more than fifteen years. — (35 Stat., 1149; 24 Stat., 636.) Sec. 318. [Fornication.] If any unmarried man or woman commits fornication, each shall be fined not more than one hundred dollars, or im- prisoned not more than six months. — (35 Stat., 1149; 24 Stat., 636.) Chapter Fourteen, general and special provisions. Sec. 332. Who are principals. 333. Punishment of accessories. 334. Accessories to robbery or piracy. 335. Felonies and misdemeanors. Sec. 336. Murder and manslaughter; place where crime deemed to have been committed. 337. Construction of certain words. 338. Omission of words "hard labor" not to deprive court of power to impose. Sec. 332. [Principals defined.] Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission_, is a principal. — (35 Stat., 1152; sees. 5323, 5427, R. S.) Sec. 333. [Punishment of accessories.] Whoever, except as otherwise expressly provided by law, being an accessory after the fact to the commission of any offense defined in any law of the Unietd States, shall be imprisoned not exceeding one-half the longest term of imprisonment, or fined not exceeding one-half the largest fine prescribed for the punishment of the principal, or both, if the principal is punishable by both fine and imprisonment; or if the principal is punishable by death, then an accessory shall be imprisoned not more than ten years. — (35 Stat., 1152; sees. 5533-5535, R. S.) Sec. 334. [Accessories to robbery or piracy.] Whoever, without lawful authority, receives or takes into custody any vessel, goods, or other property, feloniously taken by any robber or pirate against the laws of the United States, knowing the same to have been feloniously taken, and whoever, knowing that such pirate or robber has done or committed any such piracy or robbery, on the land or at sea, receives, entertains, or conceals any such pirate or robber, is an accessory after the fact to such robbery or piracy, and shall be imprisoned not more than ten years. — (35 Stat., 1152; sees. 5324, 5533, R. S.) See section 288, above. 1354 Pt. 3. STATUTES AT LARGE. April 12, 1910. Sec. 335. [Felonies and misdemeanors.] All offenses which may be punished by death, or imprisonment for a term exceeding one year, shall be deemed felonies. All other offenses shall be deemed misdemeanors. — (35 Stat., 1152.) Sec. 336. [Murder and manslaughter; place where committed.] In all cases of murder or manslaughter, the crime shall be deemed to have been committed at the place where the injury was inflicted, or the poison admin- istered, or other means employed which caused the death, without regard to the place where the death occurs. — -(35 Stat., 1152.) Sec. 337. [Construction of certain words.] Words used in this title in the present tense include the future as well as the present; words used in the masculine gender include the feminine and neuter; the singular number includes the plural, and the plural the singular; the word "person" and the word ''who- ever" include a corporation as well as a natural person; writing includes print- ing and typewriting, and signature or subscription includes a mark when the person making the same intended it as such. The words "this title," wherever they occur herein, shall be construed to mean this Act. — (35 Stat., 1152-1153.) Sec. 338. [Hard labor.] The omission of the words "hard labor" from the provisions prescribing the punishment in the various sections of this Act, sliall not be construed as depriving the court of the power to impose hard labor as a part of the punishment, in any case where such power now exists. — (35 Stat., 1153.) [1909, Aug. 5. Premium on bonds.] Until otlierwise provided by law no bond shall be accepted from any surety or bonding company for any officer or employee of the United States wliich shall cost more than thirty-five per centum in excess of the rate of premium charged for a like bond during the calendar year nineteen hundred and eiglit : Provided, That hereafter the United States shall not pay any part of the premium or other cost of furnisiiing a bond re- quired by law or otherwise of any officer or employee of the United States. — (36 Stat., 125-126, chap. 7.) See sections 1383-1385, Revised Statutes, and notes thereto; see also act of February 24, 1919, section 1320 (40 Stat., 1148), as to acceptance of Liberty bonds, etc., in lieu of surety bonds. [1910, Apr. 12. Naval Academy Band.] That the Naval Academy Band shall consist of one leader, who sliall have the pay and allowance of a second lieutenant in the IViarine Corps; one second leader, with pay at the rate of fifty dollars per month; twenty-nine musicians, first class, and eleven musicians, second class; and shall be paid from "Pay of the navy." Sec. 2. That the members of the Naval Academy Band as now organized shall be enlisted in the navy and credited with all prior service of whatever nature as members of said band, as showm by the records of the Naval Academy and the pay rolls of the ships and academy; and the said leader and the enlisted musicians of the band shall be entitled to the same benefits in respect to pay, emoluments, and retirement arising from longevity, reenlistment, and length of service as are, or may hereafter become, applicable to other enlisted men of the navy: Provided, That no back pay shall be allowed to the leader or to any mem- 54641°— 22 so 1355 June 9, 1910. Pt.3. STATUTES AT LARGE. ber of the said band by reason of the passage of this Act. — (36 Stat., 297, chap. 1.57.) 13, 1908 (35 Stat., 153), and June 3, 1916, section 35 (39 Stat., 188), as to competi- tion with ci\ ilian musicians. See act of July 11, 1919 (41 Stat., 152), for amendment to section one of this act; see also notes to sections 1511 and 1569, Re- vised Statutes; and see also acts of May [1910, June 9. Regulation of motor boats on navigable waters.] That the words '' motor boat " where used in this Act sliall include every vessel propelled by machinery and not more than sixty-five feet in length except tug boats and tow boats propelled by steam. The length shall be measured from end to end over the deck, excluding sheer: Provided, That the engine, boiler, or other operating machinery shall be subject to inspection by the local inspectors of steam vessels, and to their approval of the design thereof, on all said motor boats, wdiich are more than forty feet in length, and which are propelled by machinery driven by steam. — (36 Stat., 462, chap. 268.) Sec. 2. That motor boats subject to the provisions of this Act shall be divided into classes as follows: Class one. Less than twenty-six feet in length. Class two. Twenty-six feet or over and less than fort}' feet in length. Class three. Forty feet or over and not more than sixty-five feet in length. — (36 Stat., 462, chap. 268.) Sec. 3. That every motor boat in all weathers from sunset to sunrise shall carry the following hghts, and during such time no other lights which may be mistaken for those prescribed shall be exhibited. (a) Every motor boat of class one shall carry the following lights : First. A white light aft to show all around the horizon. Second. A combined lantern in the fore part of the vessel and lower than the white light aft showing green to starboard and red to port, so fixed as to throw the light from right ahead to tw^o points abaft the beam on their respec- tive sides. (b) Every motor boat of classes two and three shall carry the following lights : First. A bright white light in the fore part of the vessel as near the stem as practicable, so constructed as to show an unbroken light over an arc of the horizon of twent}^ points of the compass, so fixed as to throw the light ten points on each side of the vessel, namely, from right ahead to two points abaft the beam on either side. The glass or lens shall be of not less than the following dimen- sions : Class two. Nineteen square inches. Class three. Thirty-one square inches. Second. A white light aft to show all around the horizon. Third. On the starboard side a green light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side. On the port side a red light so constructed as to show an un- broken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port 1356 Pi. 3. STATUTES AT LARGE. June 9, 1910. side. The glasses or lenses in the said side lights shall be of not less than the following dimensions on motor boats of — - Class two. Sixteen square inches. Class three. Twenty-five square inches. On and after July first, nineteen hundred and eleven, all glasses or lenses prescribed by paragraph (b) of section three shall be fresnel or fluted. The said lights shall be fitted with inboard screens of sufficient height and so set as to prevent these lights from being seen across the bow and shall be of not less than the following dimensions on motor boats of — Class two. Eighteen inches long. Class three. Twenty-four inches long: Provided, That motor boats as de- fined in this Act, when propelled by sail and machinery or under sail alone, shall carry the colored lights suitably screened but not the white lights pre- scribed by this section.— (36 Stat., 462-463, chap. 26S.) Sec. 4. (a) Every motor boat under the provisions of this Act shall ])e provided with a wliistle or other sound-producing mechanical appliance capable of producing a blast of two seconds or more in duration, and in the case of such boats so provided a blast of at least two seconds shall be deemed a prolonged blast within the meaning of the law\ (b) Every motor boat of class two or three shall carry an efficient fog horn. (c) Every motor boat of class two or tliree shall be provided with an efficient bell, which shall be not less than eight inches across the motith on board of vessels of class three. — (36 Stat., 463, chap. 268.) Sec. 5. That every motor boat subject to any of the provisions of this Act, and also all vessels propelled by machinery other than by steam more than sixty-five feet in length, shall carry either life-preservers of life belts, or buoyant cushions, or ring buoys or other device, to be prescribed by the Secretary of Commerce * * * sufficient to sustain afloat every person on board and so placed as to be readily accessible. * * *. — (36 Stat., 463, chap. 268.) Sec. 6. That every motor boat and also every vessel propelled by machinery other than by steam, more than sixty-five feet in length, shall carry ready for immediate use the means of promptly and effectuall}" extinguishing burnhig gasoline.— (36 Stat., 463, chap. 268.) Sec. 7. That a fine not exceeding one hundred dollars may be imposed for any violation of this Act. The motor boat shall be liable for the said penalty and may be seized and proceeded against, by way of libel, in the district court of the United States for any district within which such vessel may be foinid.^ (36 Stat., 463, chap. 268.) Sec. 8. That the Secretary of Commerce * * * shall make such regulations as may be necessary to secure the proper execution of this Act by collectors of customs and other officers of the Government. And the Secretary of the Department of Commerce * * * may, upon application therefor, remit or mitigate any fine, penalty, or forfeiture relating to motor boats except for failure to observe the provisions of section six of this Act. — (36 Stat., 463, chap. 268.) Sec. 9. That all laws and parts of laws only in so far as they are in conflict herewith are hereby repealed: Provided, That nothing in this Act shall be 1357 June 24, 1910. Pt. S. STATUTES AT LARGE. deemed to alter or amend Acts of Congress embodying or revising international rules for preventing collisions at sea. — (36 Stat., 4G3, ehap. 268.) See sections 42:53 and 4412, Revised Statutes, 8, 1895 (28 Stat., tJ45); June 7, 1897 (30 Stat., and notes thereto; see also acts of Fel)ruary 9(5); and Autjust 19, 1890 (2G Stat., 320). [1910, June 17, sec. 4. — Supplies for executive departments, etc.] That hereafter all supplies of fuel, ice, stationery, and other miscellaneous supplies for the executive departments and other government establishments in Wash- ington, when the public exigencies do not require the immediate delivery of the article, shall be advertised and contracted for by the Secretary of the Treasury, instead of by the several departments and establishments, upon such days as he may designate. There shall be a general supply committee in lieu of the board provided for in section thirty-seven hundred and nine of the Revised Statutes as amended, composed of ofTicers, one from each such department, designated by the head thereof, the duties of wliich committee shall be to make, under the direction of the said Secretary, an annual schedule of required miscellaneous supplies, to standardize such supplies, eliminating all unnecessar}^ grades and varieties, and to aid said Secretary m solicithig bids based upon formulas and specifications drawn up by such experts m the service of the Government as the committee may see fit to call upon, who shall render whatever assistance they may require. The committee shall aid said Secretary in securing the proper fulfillment of the contracts for such supplies, for which purpose the said Secretary shall prescribe, and all departments comply with, rules providing for such examination and tests of the articles received as may be necessary for such purpose ; in making additions to the said schedule ; in opening and consid- ering the bids, and shall perform such other similar duties as he .may assign to them: Provided, That the articles intended to be purchased in this manner are those in common use by or suitable to the ordinary needs of two or more such departments or establishments; but the said Secretary shall have dis- cretion to amend the annual common supply schedule from time to time as to any articles that, m his judgment, can as well be thus purchased. In all cases only one bond for the proper performance of each contract shall be required, notwithstanding that supplies for more than one department or government establishment are included in such contract. Every purchase or drawing of such supplies from the contractor shall be immediately reported to said com- mittee. No disbursing officer shall be a member of such committee. No department or establishment shall purchase or draw supplies from the common schedule through more than one office or bureau, except m case of detached bureaus or offices having field or outlying service, which may purchase directly from the contractor with the permission of the head of their department: And provided further, That telephone service, electric light, and power service purchased or contracted for from companies or individuals shall be so obtained by him.— (36 Stat., 531, chap. 297.) See section 3709, Revised Statutes, and act of March 2, 1907 (34 Stat., 1193). [1910, June 24. Collision claims, adjustment of; report to Congress.] The Secretary of the Navy is hereby authorized to consider, ascertain, adjust and determine the amounts due on all claims for damages, where the amount of the claim does not exceed the sum of five hundred dollars, hereafter occasioned by 1358 . . Pt. 3. STATUTES AT LARGE. June 25, 1910. claims which the Government is not in law bound to pay, however much they may be urged to do so by claimants who feel aggrieved by the tortious conduct of public officers. An executive department is not the place to apply for redress of grievances not founded on legal rights. (Pitman v. U. S., 20 Ct. Cls., 256.)' The head of an executive department is not authorized to pay the actual expenses of repair- ing a vessel injured in a collision \nth a Govern- ment vessel, the claim arising from the collision being one for unliquidated damages caused by the tort of the Government's officers. (1 Comp. Dec, 261.) It seems to be the approved practice to com- mit such claimants to the tender mercies of Congress for settlement. (1 Comp. Dec, 285.) See note to section 236, Revised Statutes. collision, for which collisions vessels of the navy shall be found to be responsible, and report the amounts so ascertained and determined to be due the claimants to Congress at each session thereof through the Treasury Department for payment as legal claims out of appropriations that may be made by Congress therefor.— (36 Stat., 607, chap. 378.) See act of July 1, 1918 (40 Stat., 705), author- izing Secretary of the Navy to adjust and pay any claim not exceeding SI, 000, for damages to inhabitants to certain European countries; see also act of April 18, 1918 (40 Stat., 532). See act of July 11, 1909 (41 Stat., 132), author- izing the Secretary of the Navy to adjust and pay claims for damages other than those occasioned by vessels of the Navy, where amount does not exceed ?500. See act of June 4, 1920 (41 Stat., 814), author- izing Secretary of the Navy to adjust and pay claims not exceeding S500 for damages caused by operations of naval aircraft. (A similar pro^'ision was contained in act of July 11, 1919, 41 Stat., 133). Claims for damages. — It is not within the official duties of the head of any department to make estimates for appropriations to pay [1910, June 24. Loan of equipment to military schools.] That the act en- titled "An act to authorize the Secretary of the Navy to loan naval ec^uipment to certain military schools," approved March third, nineteen hundred and one, be amended by striking out the words "one hundred and forty cadets" and insert- ing in lieu thereof the words "seventy-five cadets over fifteen years of age." — (36 Stat., 613, chap. 378.) See act of March 3, 1901 (31 Stat., 1440), as amended by act of June 29, 1906 (34 Stat., 620). [1910, June 24. Detail of line under staflf officers.] That line officers may be detailed for duty under staff officers in the manufacturing and repair depart- ments of the navy-yards and naval stations, and all laws or parts of laws in con- flict herewith are hereby repealed. — (36 Stat., 614, chap. 378.) See notes to sections 1404 and 1488, Revised Statutes. [1910, June 24. Profit on sales from ships' stores.] That hereafter a profit not to exceed fifteen per centum may be charged on sales from ships' stores, such profit to be expended in the discretion of the Secretary of the Navy, under such regulations as he may prescribe, for the amusement, comfort, and contentment of the enlisted force, and to be accounted for to the Bureau of Supplies and Accounts, Navy Department. — (36 Stat., 619, chap. 378.) See act of March 3, 1909, (35 Stat., 768), and | is mthout jurisdiction to render a decision as to section 3689, Revised Statutes. Jurisdiction of accounting officers. — In \'iew of the wording of this enactment, pro\'id- ing for an accounting to the Bureau of Supplies and Accounts, the Comptroller of the Treasury the legality of proposed expenditures from the fund created bv ships' stores profits. (Comp. Dec, Apr. 28, 1915, file 26254-1759:2; see note tosec. 236, R. S.) [1910, June 25. Detail of employees from Government Printing Office.] Hereafter no employee of the Government Printing Office shall be detailed to duties not pertaining to the work of public printing and binding in any execu- 1359 Mar. 3, 1911. Ft. S. STATUTES AT LARGE. Judicial Code. tive department or other government establishment unless expressly authorized by law.— (36 Stat., 770, chap. 384.) See act of January 12, 1895, section 18 (28 Stat., 603). [1910, June 25, sec. 6. Annual report, sales of old material, etc.] Here- after the statement of the proceeds of all sales of old material, condemned stores, supplies, or other public property of any kmd shall be submitted to Congress at the beginning of each regular session thereof as a separate communication and shall not hereafter be included in the annual Book of Estimates. — (36 Stat., 773, chap. 384.) See sections 429, 430, 1541, and 3672, Revised Statutes, and notes thereto. [1910, June 25. Patents, protection of owners; suit in Court of Claims.] That whenever an invention described in and covered by a patent of the United States shall hereafter be used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, such owner's remedy shall be by suit against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such use and manufacture : Provided, Jiowever, That said Court of Claims shall not entertain a suit or award compensation under the provisions of this Act where the claim for compensation is based on the use or manufacture by or for the United States of any article heretofore owned, leased, used by, or in the pos- session of the United States: Provided further, That in any such suit the United States may avail itself of any and all defenses, general or special, that might be pleaded by a defendant in an action for infringement, as set forth in Title Sixty of the Revised Statutes, or otherwise : And provided further, That the benefits of this Act shall not inure to any patentee who, when he makes such claim, is in the employment or service of the Government of the United States, or the assignee of any such patentee; nor shall this act apply to any device dis- covered or invented by such employee during the time of his employment or service.— (36 Stat., 851-852, chap. 423; 40 Stat., 705, chap. 114.) utes; see also act of October 6, 1917, section This act was expressly amended and reenacted to read as above bv act of Julv 1, 1918 (40 Stat., 705). See notes to Constitution, Article I, section 8, clause 8; and section 4894, Revised Stat- 10 (i) (40 Stat., 422). As to jurisdiction of Court of Claims, see act of March 3, 1911, sections 145-150 (36 Stat., 1136-1138). [1911, Mar. 1. Discrimination against the uniform; penalty.] That here- after no proprietor, manager, or employee of a theater or other public place of entertainment or amusement in the District of Columbia, or in any Territory, the District of Alaska or Insular possession of the United States, shall make, or cause to be made, any discrimination against any person lawfully wearing the uniform of the Army, Navy, Revenue-Cutter Service or Marine Corps of the United States because of that uniform, and any person making, or causing to be made, such discrimination shall be guilty of a misdemeanor, punishable by a fine not exceeding five hundred dollars. — (36 Stat., 963-964, chap. 187.) See act of June 3, 1916, section 125 (39 Stat., 216), as to unauthorized wearing of the uniform. [1911, Mar. 3. Judicial Code.] That the laws relating to the judiciary be, and they hereby are, codified, revised, and amended, with title, chapters, head- 1360 Judicial Code. Ft. 3. STATUTES AT LARGE. Mar. 3, 1011. notes, and sections, entitled, numbered, and to read as follows: — (36 Stat., 1087, chap. 231.) See notes to section 1624, Kevised Statutes, as to jurisdiction of civil courts over court- martial proceedings. See Criminal Code, act of March 4, 1909 (35 Stat., 1088-1153), for offenses by persons in naval ser^'ice punishable by ci\dl courts. See sections 751, etseq., Re\'ised Statutes, as to jurisdiction of ci\'il courts by habeas corpus proceedings over persons held by naval authority. See, generally, sections 751-1023, Re^■ised Stat- utes, under the title, "The Judiciary." That military and naval courts form no part of the judicial system of the United States, but are instrumentalities of the executive branch of the Government, sea cases noted imder the Constitution. Article I, section 8, clause 9. See note to Constitution, Article I, section 8, clause 9, for brief explanation of the judi- cial system of the United States; see also "Introduction," ante, under "IV. Deci- sions of the courts, opinions of law officers of the Government, regulations, etc." See note to Constitution, Article I, section 8, clause 11, as to jurisdiction of ci\-il coiu-ts over the military forces in time of war. See notes to Constitution, Article I, section 8, clauses 13-14, as to jurisdiction of ci^il authorities over the military forces in time of peace. See note to Constitution, Article II, section 1, clause 1, and notes to sections 236, 416, 417, and 868, RoAised Statutes, as to jurisdic- tion of ci\dl courts over the President, heads of departments, and other officers of the executive departments. Sec. 24. [district courts ; claesis against united states.] The district courts shall have original jurisdiction as follows: * * *. — (36 Stat., 1091; sees. 563, 629, R. S.) Twentieth. Concurrent with the Court of Claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a coiu"t of law, equity, or admiralty, if the United States were suable, and of all set-offs, cotmterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court: Provided, however, That nothing in this paragraph shall be construed as giving to either the district courts or the Court of Claims jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as ''war claims," or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, department, or commission authorized to hear and determine the same, or to hear and determine claims for pensions ; or as giving to the district courts jmisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States or brought for such purpose by persons claiming as such officers or as assignees or legal repre- sentatives thereof; but no suit pending on the twenty-seventh day of June, eighteen hundred and ninety-eight, shall abate or be affected by this provision: And provided further, That no suit against the Government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made : Provided, That the claims of married women, first accrued during marriage, of persons imder the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought within 1361 Mar. 3, 1911, Ft. 3. STATUTES AT LARGE. Judicial Code. three years after the disabihty has ceased; but no other disabihty than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. All suits brought and tried under the pro- visions of this paragraph shall be tried by the court without a jury. — (36 Stat., 1093; 24 Stat., 505; 30 Stat., 495; 31 Stat., 33.) Sec. 145. [court of cl.vims; jurisdiction; relief of disbursing offi- cers, ETC.] The Court of Claims shall have jurisdiction to hear and determine the following matters: First. All claims (except for pensions) founded upon the Constitution of the United States or any law of Congress, upon any regulation of an Executive Department, upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable : Provided, however, That nothing in this section shall be construed as giving to the said com't jurisdiction to hear and determine claims growing out of the late civil war, and commonly known as ''war claims," or to hear and determine other claims which, prior to March third, eighteen hundred and eighty-seven, had been rejected or reported on adversely by any court, depart- ment, or commission authorized to hear and determine the same. Second. All set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court: Provided, That no suit against the Government of the United States, brought by any officer of the United States to recover fees for services alleged to have been performed for the United States, shall be allowed imder this chapter until an account for said fees shall have been rendered and finally acted upon as required by law, unless the proper accounting officer of the Treasury fails to act finally thereon within six months after the account is received in said office. Third. The claim of any paymaster, quartermaster, commissary of sub- sistence, or other disbursing officer of the United States, or of his administrators or executors, for relief from responsibility on account of loss by capture or other- wise, while in the line of his duty, of Government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible. — (36 Stat., 1136-1137; 24 Stat., 505.) See note to section 236, Revised Statutes, as to jurisdiction of Court of Claims and the accounting officers of the Treasury. See act of .June 25, 1910 (36 Stat., 851-852); as amended and reenacted by act of .Tuly 1, 1918 (40 Stat., 705), as to jurisdiction in patent cases. See act of .Tuly 11, 1919 (41 Stat., 132), as to disl)ursing officers being relieved of respon- sibility, without proceedings in the Court of Claims, where loss occurred in line of duty, etc. See section 147, below. Jurisdiction limited to money demands. — Where it was provided by law that retired officers who had served during the Ci\'il War should be entitled to the rank and retired pay of the next higher gi'ade, and the Navy De- partment decided that a particular officer was not entitled to the benefits of the act, a decision of the Court of Claims (Moser v. U. S., 42 Ct. Cls., 86), allowing the officer the retired pay of the next higher grade, and purporting to decide that he was also entitled to the rank of such higher grade, did not estop the Secretary of the Navy from contesting the officer's claim to the rank of such higher grade. The judgment of the court was one for money onlv. (Moser V. Meyer, 38 App. D, C, 13; see also 28 Op. Atty. Gen., 352.) Same act, 41 Stat., 153, was limited to losses incurred during the "present emergency." See also section 285, Revised Statutes, and notes to sections 176 and 236, Revised Statutes. 1362 Judicial Code. Pt. 3. STATUTES AT LARGE. Mar. 3, 1911. Sec. 146. [Determixatiox of counter-claims, etc.] Upon the trial of any cause in which any set-off, counter-claim, claim for damages, or other demand is set up on the part of the Government against any person making claim against the Government in said court, the court shall hear and determine such claim or demand both for and against the Government and claimant; and if upon the whole case it finds that the claimant is indebted to the Govern- ment it shall render judgment to that effect, and such judgment shall be final, with the right of appeal, as in other cases provided for by law. Any transcript of such judgment, filed in the clerk's office of any district court, shall be entered upon the records thereof, and shall thereby become and be a judgment of such court and be enforced as other judgments in such court are enforced. — (36 Stat., 1137; Sec. 1061, R. S.) See note to section 236, Revised Statutes, under "VI. Set-off;" Sec. 147. [Decree on accounts of disbursing officers.] Whenever the Court of Claims ascertains the facts of any loss by any paymaster, quarter- master, commissary of subsistence, or other disbursing officer, in the cases hereinbefore provided, to have been without fault or negligence on the part of such officer, it shall make a decree setting forth the amount thereof, and upon such decree the proper accounting officers of the Treasury shall allow to such officer the amount so decreed as a credit in the settlement of his accounts. — (36 Stat., 1137; Sec. 1062, R. S.) See section 145, above. Sec. 148. [Claims referred by departments.] Wlien any claim or matter is pending in any of the executive departments which involves contro- verted questions of fact or law, the head of such department may transmit the same, with the vouchers, papers, documents, and proofs pertaining thereto, to the Court of Claims, and the same shall be there proceeded in under such rules as the court may adopt. When the facts and conclusions of law shall have been found, the court shall report its findings to the department by which it was transmitted for its guidance and action: Provided, however, That if it shall have been transmitted with the consent of the claimant, or if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter it has jurisdiction to render judgment or decree thereon, it shall proceed to do so, in the latter case giving to either party such further opportunity for hearing as in its judgment justice shall require, and shall report its findings therein to the department by which the same was referred to said court. The Secretary of the Treasury may, upon the certificate of any auditor, or of the Comptroller of the Treasury, direct any claim or matter, of which, by reason of the subject matter or char- acter, the said court might under existing laws, take jurisdiction on 'the volun- tary action of the claimant, to be transmitted, with all the vouchers, papers, documents and proofs pertaining thereto, to the said court for trial and adju- dication.— (36 Stat., 1137-1138; Sec. 1063, R. S.; 22 Stat., 485; 24 Stat., 507.) "Claim or matter" construed. — The fendants, and in which there is a money de- language of sections 148 and 149 of the Judicial mand. (Proposed reference by Secretary of Code contemplates the reference by a head of a Navy, 53 Ct. Cls., 370.) department of a matter in which there is a The word "matter" appearing in section claimant, to which the United States are de- 148 does not vary the character of the claim 1363 Mar. 3, 1911. Pt. S. STATUTES AT LARGE. Judicial Code. which is required to be pending in the depart- ment or in anv-Avise extend the power of the court, because in any event the c laim or matter must be one of which the court wouhl have jurisdiction upon the vohmtary action of the claimant seekin<:; a judirment for money, ex- cept as the bar of the statute of limitations may be affected. (Proposed reference bv Secre- tary of Navy, 53 Ct. Cls., 370.) A claim or matter pending in a department which involves any controverted questions of fact or law, in order to be transmitted to the court under the provisions of section 148, must be one for the "guidance and action" of said department, and not one that is to be merely advisorv. (Proposed reference by Secretary of Navy, 53rt. Cls., 370.) Under section 148, the Court of Claims has not jurisdiction, upon reference of the Secre- tary of the Navy, to report its conclusions of law upon the questions, First, "Was the Ap- pointment of Albert A. Ilooper as a chief ma- chinist in the Navy on April 30, 1917, a valid and lawful appointment, and is his status under such appointment that of a chief ma- chinist in the Navy?" and, second, "From what date is Albert A. Hooper entitled to take rank as chief machinist in the Navy under his appointment of April 30, 1917, or if said ap- pointment is held contrary to law and ineffec- tual to confer upon the aforesaid Hooper the office of chief machinist in the Navy, upon what date is he entitled to take rank upon the issuance of a valid and effectual appointment? ' ' (Proposed reference by Secretary of Navy, 53 Ct. Cls., 370. See also note to sec. 1562, R. S.) The opinions and decisions of the court must be left to speak for themselves; if the constuc- tion of a statute is different in the executive and judicial branches, the fact but accentuates the necessity for each of them observing the limitations of its powers. Accordingly, held, that where a claim has been finally disposed of by the Court of Claims upon suit by the claim- ant, the same can not be reopened upon appli- cation of the claimant, nor indirectly pre- sented again for consideration upon the appli- cation of the head of a department under sec- tion 148, Judicial Code. It would be alike unbecoming the court and the head of the de- partment for the one to accept or the other to extend an invitation for a debate relative to such decisions. (Proposed reference by Sec- retary of Navy, 53 Ct. Cls., 370; see also Hooper V. U. S., 53 Ct. Cls., 90; and file 26280-95:2, Mar. 22, 1918.) Sec. 149. [Procedure in cases referred by departments.] All cases transmitted by the head of any department, or upon the certificate of any auditor, or of the Comptroller of the Treasury, according to the provisions of the preceding section, shall be proceeded in as other cases pending in the Court of Claims, and shall, in all respects, be subject to the same rules and regulations.— (36 Stat., 1138; sec. 1064, R. S.) See note to preceding section. Sec. 150. [Payment of judgments, cases referred by departments.] The amount of any final judgment or decree rendered in favor of the claimant, in any case transmitted to the Court of Claims under the two preceding sec- tions, shall be paid out of any specific appropriation applicable to the case, if any such there be; and where no such appropriation exists, the judgment or decree shall be paid in the same manner as other Judgments of the said court. — (36 Stat., 1138; sec. 1065, R. S.) Sec. 163. [Commissioners to take testimony.] The Court of Claims shall have power to appoint commissioners to take testimony to be used in the investigation of claims which come before it, to prescribe the fees which they shall receive for their services, and to issue commissions for the taking of such testimony, whether taken at the instance of the claimant or of the United States.— (36 Stat., 1140; sec. 1075, R. S.) See sections 188 and 868 et seq., Revised Statutes, and notes thereto. Sec. 164. [Calls on departments for information and records.] The said court shall have power to call upon any of the departments for any in- formation or papers it may deem necessary, and shall have the use of all recorded and printed reports made by the committees of each House of Congress, when deemed necessary in the prosecution of its business. But the head of any department may refuse and omit to comply with any call for information 1364 Judicial Code. Pt. 3. STATUTES AT LARGE. Mar. 3, 1911. or papers when, in his opinion, such comphance would be injurious to the pubhc interest.— (36 Stat., 1140; sec. 1076, R. S.) See sections 188 and 882, Re\daed Statutes; and see note to section 418, Revised Statutes, under "Records of department." Sec. 175. [New trial ox motion of United States.] The Court of Claims, at any time while any claim is pending before it, or on appeal from it, or within two years next after the final disposition of such claim, may, on motion, on behalf of the United States, grant a new trial and stay the payment of any judgment therein, upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong, or injustice in the premises has been done to the United States; but until an order is made staying the payment of a judgment, the same shall be payable and paid as now provided by law. — (36 Stat., 1141; sec. 1088, R. S.) See sections 242-243, below, as to appeals. Sec. 227. [Supreme Court reports and digests; distribution of.] The Attorney General shall distribute copies of the Supreme Court reports as follows: To * * * the Secretary of the Navy, * * * each Assistant Secretary of each Executive Department, * * * the Judge Advocate General, Navy Department, * * * ^he Naval Academy at An- napolis, * * * and the heads of such other executive offices as may be provided by law, of equal grade with any of said offices, each one copy; * * *. He shall also distribute one complete set of said reports, and one 'set of the digests thereof, to such executive officers as are entitled to receive said reports under this section and have not already received them, * * *^ Such reports and digests shall remain the property of the United States, and shall be preserved by the officers above named and by them turned over to their successors in office.— (36 Stat., 1154-1155; sec. 683, R. S.; 32 Stat., 630.) See act of January 12, 1895, section 74 (28 Stat., 620). Sec. 242. [Appeals from Court of Claims.] An appeal to the Supreme Court shall be allowed on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of said court as provided in section one hundred and seventy-two. — (36 Stat., 1157; sec. 707, R. S.) Section 172 relates to claims forfeited for fraud. See section 175, above, as to new trials in Court of Claims. Sec. 243. [Time of appeals.] All appeals from the Court of Claims shall be taken withui ninety days after the judgment is rendered, and shall be allowed under such regulations as the Supreme Court may direct. — (36 Stat., 1157; sec. 708, R. S.) [1911, Mar. 4. Direct and indirect charges included in cost of work; annual report to Congress.] That hereafter, in fixing the cost of work under the various naval appropriations, the direct and indirect charges incident thereto shall be included in such cost: And provided further, That the Bureau 1365 Mar. 4, 1911. Pt. S. STATUTES AT LARGE. of Supplies and Accounts shall keep the money accounts of the Naval Estab- lishment in such manner as to show such charges and shall report the same annually for the information of Congress. — (36 Stat., 1267, chap. 239.) A slisrhtlv different pro^'ision was contained in the act of June 24, 1910 (36 Stat., 607). See act of June :50, 1014 (38 Stat., 413-114), as to distribution of overhead charges. See section 429, Re\-ised Statutes, and note thereto, as to reports required to be made to Conc:ress; and see note to section 419, Re^-ised Statutes, as to duties of the Bureau of Supplies and Accounts (formerly the Bureau of Provisions and Clothing). [1911, Mar. 4. Former engineer officers made additional numbers.] That officers on the active list of the line of the United States Navy who, under authority of law, now perform engineering duty on shore only are hereby made additional to the numbers in the grades in which they are now serving, and shall be carried as additional to the numbers of each grade to which they may hereafter be promoted: Provided, That said officers shall be entitled to all the benefits of retirement under existing or future laws equally with other officers of like rank and service. — (36 Stat., 1267, chap. 239.) See notes to sections 1363, and 1390-1394, Re\'ised Statutes. Former officers of the Engineer Corps who were restricted by act of March 3, 1899 (30 Stat., 1004), to engineering duty on shore only, are now made available by law for any shore duty compatible with their rank and grade. ( See acts of June 30, 1914, 38 Stat., 394, and Mar. 3, 1915, 38- Stat., 930, noted under sections 1390 and 1404, R. S.) This pro\'ision is now inapplicable to officers of the rank of lieutenant commander and above. (See act of Aug. 29, 1916, 39 Stat., 579, as amended by act of July 1, 1918, 40 Stat., 718.) [1911, Mar. 4. Officers failing physically for promotion, retired in higher rank.] Hereafter, if any officer of the United States Navy shall fail in his physical examination for promotion and be found incapacitated for service by reason of physical disability contracted in the line of duty, he shall be retired with the rank to which his seniority entitled him to be promoted. — (36 Stat., 1267, chap. 239.) See note to section 1457, ReWsed Statutes, under ' ' Rank on retii-ement of officer fail- ing to qualify for promotion;" and see sec- tions 1588-1595, Re\dsed Statutes, as to pay of retired officers. See section 1622, Re\'ised Statutes, as to retired officers of the Marine Corps. [1911, Mar. 4. Y. M. C. A. buildings in Navy yards.] That the Secretary of the Navy is authorized, in his discretion, to furnish hereafter, without charge, heat and light for the Young Men's Cliristian Association buildings in navy yards and stations. — (36 Stat., 1274, chap. 239.) [1911, Mar. 4. Naval supply account.] Hereafter the Naval Supply Account for the Naval Establishment, as created by the act of June twenty-fifth, nineteen hundred and ten, under the Bureau of Supplies and Accounts, shall govern the charging, crediting, receipt, purchase, transfer, manufacture, repair, issue, and consumption of all stores for the Naval Establishment, excepting the materials named in that act and such other materials as the Secretary of the Navy may designate: Provided, That the amount expended under General Account of Advances for the purchase and manufacture of stores and materials for the Naval Establishment shall not exceed the amount available for such purposes.— (36 Stat., 1279, chap. 239.) 1366 PL S. STATUTES AT LARGE. Mar. 4, 1911. The act of June 25, 1910 (36 Stat., 792), referred to in the pro\ision, and which, as original! j' enacted, was temporary legislation, read as follows: "Naval supply account for the Naval Establishment: All stores on hand July first, nineteen hundred and ten, shall be charged to a naval supply account on the records of the Bureau of Supplies and Ac- counts, and all purchases of stock or ex- penditures for manufactured or repaired articles for stock at navy-yards or stations, diu"ing the fiscal years nineteen hundred and eleven and nineteen hundred and twelve shall be charged to this account and be paid for fi-om ' General account of ad- vances. ' ■'The amount so advanced during the fiscal years nineteen hundred and eleven and nineteen hundred and twelve shall be charged to the proper appropriations as these stores are consumed from stock, and when disbursements made for all other purposes are accomplished, the amount so charged shall be returned to 'General ac- count of advances' by pay or counter war- rants: Provied, however, That such material as pro\'isions, clothing and small stores, medical stores, and such other materials as the Secretary of the Navy may designate, may be purchased by specific appropriations or transferred to specific appropriations before such materials are issued for use or consumption. The said charge, however, to any particular appropriation shall belimited to the amount appropriated therefor. "Credit shall be made to appropriations during said fiscal years nineteen hundred and eleven and nineteen hundred and twelve for the value of surveyed material taken from repairs made to ships or plant at navy-yards and stations, or for stores turned in from ships, and this credit shall not be used by the bureaus to increase the amount of that appropriation, but shall be a deduction from the operating expenses of the annual appropriation concerned, sub- ject to the same pro\ision as stated in above paragraph." For later legislation relating to the naval supply account and the naval supply account fund, see acts of June 30, 1914 (38 Stat., 405), and March 1, 1921 (41 Stat., 1169, 1170). See also acts of March 2, 1891 (26 Stat., 807), and March 2, 1889 (2b Stat., 818); and see sections 418, 3676, 3689, and 3718, Re^'ised Statutes, and notes thereto. The above-quoted provision in the act of March 4, 1911, relating to the naval supply account was immediately preceded by the following clause abolishing the Naval Supply Fund : "The permanent Naval Supply Fund created by the act of March third, eighteen hundred and ninety-three, as modified by the acts of June tenth, eighteen hundred and ninety-six, and March third, eightqgn hun- dred and ninety-seven, and further increas- ed by the acts of January fifth, eighteen hundred and ninety-nine, and February fourteenth, nineteen hundred and two, is hereby abolished, and of the sum remain- ing on the books of the Treasury to the credit of the said fund after the adjustment of all liabilities, the Secretary of the Treasmy is hereby authorized and directed to cause the sum of one million five hundred thousand dollars transfen'ed to the credit of said fund from the General Account of Advances to be returned to General Account of Ad- vances, and the remainder to be covered into the Treasury. The Naval Supply Fund was created by act of March 3, 1893 (27 Stat., 723), and increased by acts of June 10, 1896 (29 Stat., 370), March 3, 1897 (29 Stat., 658), January 5, 1899 (30 Stat., 781), and February 14, 1902 (32 Stat., 17). (See 28 Op. Atty. Gen., 634, and 29 Op. Atty. Gen., 344.) [1911, Mar. 4. Marine Schools ; loan of vessels, etc., to.] That the Secretary of the Navy, to promote nautical education, is hereby authorized and empower- ed to furnish, upon the application in writing of the governor of a State, a suit- able vessel of the navy, with all her apparel, charts, books, and instruments of navigation, provided the same can be spared without detriment to the naval service, to be used for the benefit of any nautical school, or school or college having a nautical branch, established at each of the following ports of the United States: Boston, Philadelphia, New York, Seattle, San Francisco, Baltimore, Detroit, Saginaw, Michigan, Norfolk, and Corpus Christi, upon the condition that there shall be maintained at such port a school or branch of a school for the instruction of youths in navigation, steamship-marine engineer- ing, and all matters pertaining to the proper construction, equipment, and sail- ing of vessels or any particular branch thereof. — (36 Stat., 1353, chap. 265.) Sec. 2. That a sum not exceeding the amount annually appropriated by any State or municipality for the purpose of maintaining such a marine school or schools or the nautical branch thereof is hereb}" authorized to be appropriated for the purpose of aiding in the maintenance and support of such school or schools : Provided, however, That appropriations shall be made for one school in any port 1367 Mar. 4,1911. rt.S. STA TUTES A T LARGE. heretofore named in section one and that the appropriation for any one year shall not exceed twenty-five thousand dollars for any one school. — (36 Stat., 1353, chap. 265.) Sec. 3. That the President of the United States is hereby authorized, when in his opinion the same can be done without detriment to the public serv- ice, to detail proper officers of the navy- as superintendents of or instructors in such schools : Provided, That if any such school shall be discontinued, or the good of the naval service shall require, such vessel shall be immediately restored to the Secretary of the Navy and the officers so detailed vecsXled: And 'provided further, That no person shall be sentenced to or received at such schools as a punishment or commutation of punishment for crime. — (36 Stat., 1353-1354, chap. 265.) Sec. 4. That all laws and parts of laws in conflict herewith are hereby repealed.— (36 Stat., 1354, chap. 265.) Similar provisions were previously embodied in act of June 20, 1874 (18 Stat., 121), as amended by act of March 3, 1881 (21 Stat., 505). [1911, Mar. 4. Retired officers, commissions.] That commissioned officers, of the Army, Navy, and Marine Corps on the retired list whose rank has been or shall hereafter be advanced by operation of or in accordance with law shall be entitled to and shall receive commissions in accordance with such advanced rank.— (36 Stat., 1354, chap. 266.) See act of March 28, 1896 (29 Stat., 75) ; see also note to Constitution, Article 11, section 3, under "11. Duty to commission officers;" See act of March 3, 1901 (31 Stat., 1440), and amendments noted thereunder WT-th re- ference to military and nautical schools. and see note to section 1457, Revised Stat- utes. [1911, Mar. 4. Falsification of accounts, etc.; penalty.] That whoever, being an officer, clerk, agent, or other person holding any office or employment under the Government of the United States and, being charged with the duty of keeping accounts or records of any kind, shall, with intent to deceive, mis- lead, injure, or defraud the United States or any person, make in any such account or record any false or fictitious entry or record of any matter relating to or connected with his duties, or whoever with like intent shall aid or abet any such officer, clerk, agent, or other person in so doing; or whoever, being an officer, clerk, agent, or other person holding any office or employment under the Government of the United States and, being charged with the duty of receiving, holding, or paying over moneys or securities to, for, or on behalf of the United States-, or of receiving or holding in trust for any person any moneys or securities, shall, with like intent, make a false report of such moneys or securities, or whoever with like intent shall aid or abet any such officer, clerk, agent, or other person in so doing, shall be fined not more than five thousand dollars, or imprisoned not more than ten years, or both. — (36 Stat., 1355-1356, chap. 270.] See section 1624, Revised Statutes, article 14; and see Criminal Code, act of March 4, 1909, section 90 (35 Stat., 1105). [1911, Mar. 4, sec. 6. Bonds and contracts, Panama Railroad.] Hereafter the Panama Railroad Company shall not be required to give bond, either with or without surety, in contracts which it may make to furnish services, materials, 1868 PL 3. STATUTES AT LARGE. Apr. 24, 1912. or supplies to the Army, Nary, Marine Corps, or other departments of the Government, and such contracts may be made for periods less than one year, as may be agreed on, and formal contracts in writing shall not be required unless agreed on. — (36 Stat., 1452, chap. 285.) See sections 3718, 3719, and 3744, Re^-ised Statutes. 1911, Aug. 22. Partial payments, Navy contracts.] That the Secretary of the Navy be, and he hereby is, authorized, in his discretion, to make partial payments from time to time during the progress of the work under existing contracts and all contracts hereafter made under the Navy Department for public purposes, but not in excess of the value of work already done; and the contracts hereafter made shall provide for a lien in favor of the Government, which lien is hereby made paramount to all other liens, upon the articles or thing contracted for on account of all payments so made : Provided, That partial payments shall not be made under such contracts except where stipulated for, and then only in accordance with contract provisions. — (37 Stat., 32-33, chap. 42.) A pro\'ision on this subject was previously contained in act of ]\Iarch 4, 1911 (36 Stat., 1267), but was expressly repealed by Joint Resolution of August 14, 1911 (37 Stat., 38). See section 3648, Revised Statutes. [1912, Mar. 7. Course at Naval Academy ; commissions on graduation.] That the course at the Naval Academy shall be four years, and midshipmen on graduation shall be commissioned ensigns: Provided, That midshipmen now performing two years' service at sea in accordance with existing law shall be commissioned forthwith as ensigns from the date of the passage of this Act: And provided, That those midshipmen of the class which was graduated in nineteen hundred and nine, who have completed two years' service afloat, and who are due for promotion, shall be commissioned ensigns to take rank with the other members of their class, according to their standing as deter- mined by their final multiples, respectively, for the six years' course, from the fifth day of June, nineteen hundred and eleven, the date of rank to which they were entitled prior to the passage of this Act: And provided further. That no back pay or allowances shall result by reason of the passage of this Act. — (37 Stat., 73, chap. 53.) See sections 1520 and 1521, Revised Statutes, and notes thereto. [1912, Apr. 24. Red Cross; use of in time of war.] That whenever in time of war, or when war is imminent, the President may deem the cooperation and use of the American National Red Cross with the sanitary services of the land and naval forces to be necessary, he is authorized to accept the assistance tendered by the said Red Cross and to employ the same under the sanitary services of the Army and Navy in conformity with such rules and regulations as he may prescribe. Sec. 2. That when the Red Cross cooperation and assistance with the land and naval forces in time of war or threatened hostilities shall have been accepted by the President, the personnel entering upon the duty specified in section one of this Act shall, while proceeding to their place of duty, while serving thereat, and while returning therefrom, be transported and subsisted at the cost and charge of the United States as civilian employees employed with 1369 June 19, 1912. Pi. 3. STATUTES AT LARGE. the said forces, and the Red Cross supplies that may be tendered as a gift and accepted for use in the sanitary service shall be transported at the cost and charge of the United States. — (37 Stat., 90-91, chap. 90.) resolution of May 8, 1914 (38 Stat., 771), as to loan of naval property to Red Cross. See act of August 29, 191G (39 Stat., 581), as to detail of medical officers of the Nav>' for dutv with the Red Cross; and see [1912, June 19. Eight-hour law; contract provisions.] That every contract hereafter made to which the United States, any Territory, or the District of Columbia is a party, and every such contract made for or on behalf of the United States, or any Territory, or said District, which may require or involve the employment of laborers or mechanics shall contam a provision ■ that no laborer or mechanic doing any part of the work contemplated by the contract, in the employ of the contractor or any subcontractor contracting for any part of said work contemplated, shall be required or permitted to work more than eight hours in any one calendar day upon such work; and every such contract shall stipulate a penalty for each violation of such provision in such contract of five dollars for each laborer or mechanic for every calendar day in which he shall be required or permitted to labor more than eight hours upon said- work; and any officer or person designated as inspector of the work to be performed under any such contract, or to aid in enforcing the fulfillment thereof, shall, upon observation or investigation, forthwith report to the proper officer of the United States, or of any Territory, or of the District of Columbia, all viola- tions of the provisions of this Act directed to be made in every such contract, together with the name of each laborer or mechanic w^ho has been required or permitted to labor in violation of such stipulation and the day of such viola- tion, and the amount of the penalties imposed according to the stipulation in any such contract shall be directed to be withheld for the use and benefit of the United States, the District of Columbia, or the Territory contracting by the officer or person whose duty it shall be to approve the payment of the moneys due under such contract, whether the violation of the provisions of such contract is by the contractor or any subcontractor. Any contractor or subcontractor aggrieved by the withholding of any penalty as hereinbefore provided shall have the right within six months thereafter to appeal to the head of the department making the contract on behalf of the United States or the Territory, and in the case of a contract made by the District of Columbia to the Commissioners thereof, who shall have power to review the action imposing the penalty, and in all such appeals from such final order whereby a contractor or subcontractor may be aggrieved by the imposition of the penalty hereinbefore provided such contractor or subcontractor may within six months after decision by such head of a department or the Commissioners of the District of Columbia file a claim in the Court of Claims, which shall have juris- diction to hear and decide the matter in like manner as in other cases before said court.— (37 Stat., 137-138, chap. 174.) Sec. 2. That nothing in this Act shall apply to contracts for transporta- tion by land or water, or for the transmission of intelligence, or for the pur- chase of supplies by the Government, whether manufactured to conform to particular specifications or not, or for such materials or articles as may usually 1370 PL 3. STATUTES AT LARGE. July 31, 1912. be bought in open market, except armor and armor plate, whether made to conform to particular specifications or not, or to the construction or repair of levees or revetments necessary for protection against floods or overflows on the navigable waters of the United States : Provided, That all classes of work which have been, are now, or may hereafter be performed by the Government shall, when done by contract, by mdividuals, firms, or corporations for or on behalf of the United States or any of the Territories or the District of Columbia, be performed m accordance with the terms and provisions of section one of this Act. The President, by Executive order, may waive the provisions and stipulations in this Act as to any specific contract or contracts during time of war or a time when war is imminent, and until January fii'st, nineteen hundred and fifteen, as to any contract or contracts entered into in connection with the construction of the Isthmian Canal. No penalties shall be imposed for any violation of such provision in such contract due to any extraordinary events or conditions of manufacture, or to any emergency caused by fire, famine, or flood, by danger to life or to property, or by other extraordinary event or condition on account of which the President shall subsequently declare the violation to have been excusable. Nothing in this Act shall be construed to repeal or modify the Act entitled "An Act relating to the limitation of the hours of daily service of laborers and mechanics employed upon the public works of the United States and of the District of Columbia" being chapter three hundred and fifty-two of the laws of the Fifty-second Congress, approved August first, eighteen hundred and ninety-two, as modified by the Acts of Congress approved February twenty-seventh, nineteen hundred and six, and June thirtieth, nineteen hundred and six, or apply to contracts which have been or may be entered into under the provisions of appropriation Acts ap- proved prior to the passage of this Act. — (37 Stat., 138, chap. 174.) (37 Stat., 726-727); and see act of March See section 3738, Revised Statutes, and act of August 1, 1892 (27 Stat., 340), as amended and reenacted by act of March 3, 1913 4, 1917 (39 Stat., 1192). [1912, June 26, Sec. 8. Membership fees and expenses, societies or asso- ciations.] No money appropriated by this or any other Act shall be expended for membership fees or dues of any officer or employee of the United States or of the District of Columbia in any society or association or for expenses of attendance of any person at any meeting or convention of members of any society or association, unless such fees, dues, or expenses are authorized to be paid by specific appropriations for such purposes or are provided for in express terms in some general appropriation. — (37 Stat., 184, chap. 182.) Subsequent amendments to this section, which were either temporaxy or did not relate to the Navy, are omitted. [1912, July 31. Prize fight films and pictures.] That it shall be unlawful for any person to deposit or cause to be deposited in the United States mails for mailing or delivery, or to deposit or cause to be deposited with any express company or other common carrier for carriage, or to send or carry from one State or Territory of the United States or the District of Columbia to any other State or Territory of the United States or the District of Columbia, or to bring or to cause to be brought into the United States from abroad, any film or other pictorial representation of any prize fight or encounter of pugilists, 54641°— 22 87 1371 Aug. 13, 1912. Ft. S. STATUTES AT LARGE. Radio Regulation. under whatever name, which is designed to be used or may be used for pur- poses of pubhc exhibition.— (37 Stat., 240-241, chap. 263.) Sec. 2. That it shall be unlawful for any person to take or receive from the mails, or any express company or other common carrier, with intent to sell, distribute, circulate, or exhibit any matter or tiling herein forbidden to be deposited for mailing, delivery, or carriage in interstate commerce. — (37 Stat., 241, chap. 263.) Sec. 3. That any person violating any of the provisions of tliis Act shall for each offense, upon conviction thereof, be fined not more than one thousand dollars or sentenced to imprisonment at hard labor for not more than one year, or both, at the discretion of the court. — (37 Stat., 241, chap. 263.) See section 211, Criminal Code, act of March 4, 1909 (35 Stat., 1129), and note thereto. [1912, Aug. 1. Salvage, remuneration, etc.] That the right to remunera- tion for assistance or salvage services shall not be affected by common owTier- ship of the vessels rendering and receiving such assistance or salvage services. Sec. 2. That the master or person in charge of a vessel shall, so far as he can do so without serious danger to his own vessel, crew, or passengers, render assistance to every person who is found at sea in danger of being lost; and if he fails to do so, he shall, upon conviction, be liable to a penalty of not exceed- ing one thousand dollars or imprisonment for a term not exceeding two years, or both. Sec. 3. That salvors of human life, who have taken part m the services rendered on the occasion of the accident giving rise to salvage, are entitled to a fair share of the remuneration awarded to the salvors of the vessel, her cargo, and accessories. Sec. 4. That a suit for the recovery of remuneration for rendering assist- ance or salvage services shall not be maintainable if brought later than two years from the date when such assistance or salvage was rendered, unless the court in which the suit is brought shall be satisfied that during such period there had not been any reasonable opportunity of arresting the assisted or salved vessel ^vithin the jurisdiction of the court or within the territorial waters of the country in which the libelant resides or has his principal place of business. Sec. 5. That nothing in this Act shall be construed as applying to ships of war or to Government ships appropriated exclusively to a public service. — (37 Stat., 242, chap. 268.) See sections 1536 and 4642, Re^^sed Statutes, 1918 (40 Stat., 705), and March 9, 1920, sec- and notes thereto; see also acts of July 1, tions 10-11 (41 Stat., 528). [1912, Aug. 13. Radio communication, regulation of.] That a person, company, or corporation within the jurisdiction of the United States shall not use or operate any apparatus for radio communication as a means of commer- cial intercourse among the several States, or with foreign nations, or upon any vessel of the United States engaged in interstate or foreign commerce, or for the transmission of radiograms or signals the effect of which extends beyond the jurisdiction of the State or Territory in which the same are made, or where interference would be caused thereby with the receipt of messages or signals from beyond the jurisdiction of the said State or Territory, except under and in accordance with a license, revocable for cause, in that behalf granted by 1372 Radio Regulation. Ft. 3. STATUTES AT LARGE. Aug. 13, 1912. the Secretary of Commerce * * * upon application therefor; but nothing in this Act shall be construed to apply to the transmission and exchange of radiograms or signals between points situated in the same State: Provided, That the effect thereof shall not extend beyond the jurisdiction of the said State or interfere with the reception of radiograms or signals from beyond said jm'isdiction; and a license shall not be required for the transmission or exchange of radiograms or signals by or on behalf of the Government of the United States, but every Government station on land or sea shall have special call letters designated and published in the list of radio stations of the United States by the Department of Commerce * * *. Any person, company, or corporation that shall use or operate any apparatus for radio communication in violation of this section, or knowingly aid or abet another person, company, or corporation in so doing, shall be deemed guilty of a midemeanor, and on conviction thereof shall be punished by a fine not exceeding five hundred dollars, and the apparatus or device so unlawfully used and operated may be adjudged forfeited to the United States.— (37 Stat., 302-303, chap. 287.) Sec. 2. That every such license shall be in such form as the Secretary of Commerce * * * shall determine and shall contain the restrictions, pursuant to this Act, on and subject to which the license is granted ; that every such license shall be issued only to citizens of the United States or Porto Rico or to a com- pany incorporated under the laws of some State or Territory or of the United States or Porto Rico, and shall specify the ownership and location of the station in which said apparatus shall be used and other particulars for its identification and to enable its range to be estimated; shall state the purpose of the station, and, in case of a station in actual operation at the date of passage of this Act, shall contain the statement that satisfactory proof has been furnished that it was actually operating on the above-mentioned date; shall state the wave length or the wave lengths authorized for use by the station for the prevention of interference and the hours for which the station is licensed for work; and shall not be construed to authorize the use of any apparatus for radio com- munication in any other station than that specified. Every such license shall be subject to the regulations contained herein, and such regulations as may be established from time to time by authority of this Act or subsequent Acts and treaties of the United States. Every such license shall provide that the Presi- dent of the United States in time of war or public peril or disaster may cause the closing of any station for radio communication and the removal therefrom of all radio apparatus, or may authorize the use or control of any such station or apparatus by any department of the Government, upon just compensation to the owners.— (37 Stat., 303, chap. 287.) Sec. 3. That every such apparatus shall at all times while in use and operation as aforesaid be in charge or under the supervision of a person or persons licensed for that purpose by the Secretary of Commerce * * * Every person so licensed who in the operation of any radio apparatus shall fail to observe and obey regulations contained in or made pursuant to this Act or subsequent Acts or treaties of the United States, or any one of them, or who shall fail to enforce obedience thereto by an unlicensed person while serving under his supervision, in addition to the punishments and penalties herein 1373 Aug. 13, 1912. Pt. S. STATUTES AT LARGE. Radio Regulation. prescribed, may suffer the suspension of the said license for a period to be fixed by the Secretary of Commerce * * * not exceeding one year. It shall be un]a^^^ul to employ any unlicensed person or for any unlicensed person to serve in charge or in supervision of the use and operation of such apparatus, and any person violating this provision shall be guilty of a misdemeanor, and on conviction thereof shall bo punished by a fine of not more than one hundred dollars or imprisonment for not more than two months, or both, in the discretion of the court, for each and every such offense: Provided, That in case of emer- gency the Secretary of Commerce * * * may authorize a collector of customs to issue a temporary permit, in lieu of a license, to the operator on a vessel subject to the radio ship Act of June twenty-fourth, nineteen hundred and ten.— (37 Stat., 303, chap. 287.) Sec. 4. That for the purpose of preventing or minimizing interference with communication between stations in which such apparatus is operated, to facilitate radio communication, and to further the prompt receipt of distress signals, said private and commercial stations shall be subject to the regulations of this section. These regulations shall be enforced by the Secretary of Com- merce * * * through the collectors of customs and other officers of the Government as other regulations herein provided for. The Secretary of Commerce * * * may, in his discretion, waive the provisions of any or all of these regulations when no interference of the character above mentioned can ensue. The Secretary of Commerce * * * may grant special temporary licenses to stations actually engaged in conducting experiments for the develop- ment of the science of radio communication, or the apparatus pertaining thereto, to carry on special tests, using any amount of power or any wave lengths, at such hours and under such conditions as will insure the least inter- ference with the sending or receipt of commercial or Government radiograms, of distress signals and radiograms, or with the work of other stations. In these regulations the naval and military stations shall be understood to be stations on land. Regulations. normal wave length. First. Every station shall be required to designate a certain definite wave length as the normal sending and receiving wave length of the station. This wave length shall not exceed six hundred meters or it shall exceed one thousand six hundred meters. Every coastal station open to general public service shall at all times be ready to receive messages of such wave lengths as are required by the Berlin convention. Every ship station, except as hereinafter provided, and every coast station open to general public service shaU be pre- pared to use two sending wave lengths, one of three hundred meters and one of six hundred meters, as required by the international convention in force: Provided, That the Secretary of Commerce * * * may, in his discretion, change the limit of wave length reservation made by regulations first and second to accord with any international agreement to which the United States is a party. 1374 Radio Regulation. Pt. 3. STATUTES AT LARGE. Aug. 13, 1912. OTHER WAVE LENGTHS. Second. In addition to the normal sending wave length all stations, except as provided hereinafter in these regulations, may use other sending wave lengths: Provided, That they do not exceed six hundred meters or that they do exceed one thousand six hundred meters : Provided further, That the character of the waves emitted conforms to the requirements of regulations third and fourth following. USE OF A "pure WAVE." Third. At all stations if the sending apparatus, to be referred to hereinafter as the "transmitter," is of such a character that the energy is radiated in two or more wave lengths, more or less sharply defined, as indicated by a sensitive wave meter, the energy in no one of the lesser waves shall exceed ten per centum of that in the greatest. — (37 Stat., 304, chap. 287.) use of a "sharp avave." Fourth. At all stations the logarithmic decrement per complete oscillation in the wave trains emitted by the transmitter shall not exceed two-tenths, except when sending distress signals or signals and messages relating thereto. use of "standard distress wave." Fifth. Every station on shipboard shall be prepared to send distress calls on the normal wave length designated by the international convention in force, except on vessels of small tonnage unable to have plants insm-ing that wave length. SIGNAL OF DISTRESS. Sixth. The distress call used shall be the international signal of distress USE OF "broad INTERFERING WAVE " FOR DISTRESS SIGNALS. Seventh. When sending distress signals, the transmitter of a station on shipboard may be tuned in such a manner as to create a maximum of inter- ference with a maximum of radiation. DISTANCE REQL1REMENT FOR DISTRESS SIGNALS. Eighth. Every station on shipboard, wherever practicable, shall be prepared to send distress signals of the character specified in regulations fifth and sixth with sufficient power to enable them to be received by day over sea a distance of one hundred nautical miles by a shipboard station equipped with apparatus for both sending and receiving equal in ail essential particulars to that of the station first mentioned. "right of way" for DISTRESS SIGNALS. Ninth. All stations are required to give absolute priority to signals and radiograms relating to ships in distress; to cease all sending on hearing a 1375 Aug. 13, 1912. Pt. 3. STATUTES AT LARGE. Radio Regulation. distress signal; and, except when engaged in answering or aiding the ship in distress, to refrain from sending until all signals and radiograms relating thereto are completed. REDUCED POWER FOR SHIPS NEAR A GOVERNMENT STATION. Tenth. No station on shipboard, when within fifteen nautical miles of a naval or military station, shall use a transformer input exceeding one kilowatt, nor, when within five nautical imles of such a station, a transformer input exceeding one-half kilowatt, except for sending signals of distress, or signals or radiograms relating thereto. — (37 Stat., 305, chap. 287.) INTERCOMMUNICATION. Eleventh. Each shore station open to general public service between the coast and vessels at sea shall be bound to exchange radiograms with any similar shore station and with any ship station without distinction of the radio systems adopted by such stations, respectively, and each station on shipboard shall be bound to exchange radiograms wdth any other station on shipboard without distinction of the radio systems adopted by each station, respectively. It shall be the duty of each such shore station, during the houi*s it is in operation, to listen in at intervals of not less than fifteen minutes and for a period not less than two minutes, with the receiver tuned to receive messages of three hundred meter wave lengths. — (37 Stat., 305-306, chap. 287.) DIVISION OF TIME. Twelfth. At important seaports and at all other places where naval or military and private or commercial shore stations operate in such close prox- imity that interference with the work of naval and military stations can not be avoided by the enforcement of the regulations contained in the foregomg regulations concerning wave lengths and character of signals emitted, such private or commercial shore stations as do interfere with the reception of signals by the naval and military stations concerned shall not use their transmitters during the first fifteen minutes of each hour, local standard time. The Secre- tary of Commerce * * * niay, on the recommendation of the department concerned, designate the station or stations which may be required to observe this division of time. GOVERNMENT STATIONS TO OBSERVE DIVISION OF TIME. Thirteenth. The naval or military stations for which the above-mentioned division of time may be established shall transmit signals or radiograms only during the first fifteen minutes of each hour, local standard time, except in case of signals or radiograms relating to vessels in distress, as hereinbefore provided. USE OF UNNECESSARY POWER. Fourteenth. In all circumstances, except in case of signals or radiograms relating to vessels in distress, all stations shall use the minimum amount of energy necessary to carry out any communication desired. 1376 Radio Regulation. Pt. 3. STATUTES AT LARGE. Aug. 13, 1912. GENERAL RESTRICTIONS ON PRIVATE STATIONS. Fifteenth. No private or commercial station not engaged in the transaction of bona fide commercial business by radio communication or in experimentation in connection with the development and manufacture of radio apparatus for commercial purposes shall use a transmitting wave length exceeding two hun- dred meters, or a transformer input exceeding one kilowatt, except by special authority of the Secretary of Commerce * * * contained in the license of the station : Provided, That the o\vner or operator of a station of the character mentioned in this regulation shall not be liable for a violation of the require- ments of the third or fourth regulations to the penalties of one hundred dollars or twenty-five dollars, respectively, provided in this section unless the person maintaining or operating such station shall have been notified in writing that the said transmitter has been found, upon tests conducted by the Government, to be so adjusted as to violate the said third and fourth regulations, and oppor- tunity has been given to said o^vner or operator to adjust said transmitter in conformity with said regulations. SPECIAL RESTRICTIONS IN THE VICINITIES OF GOVERNMENT STATIONS. Sixteenth. No station of the character mentioned in regulation fifteenth situated ^vithin five nautical miles of a naval or military station shall use a transmitting wave length exceeding two hundred meters or a transformer input exceeding one-half Idlowatt. — (37 Stat., 306, chap. 287.) SHIP STATIONS TO COMMUNICATE WITH NEAREST SHORE STATIONS. Seventeenth. In general, the sliipboard stations shall transmit their radiograms to the nearest shore station. A sender on board a vessel shall, however, have the right to designate the shore station tlii'ough which he desires to have his radiograms transmitted. If this can not be done, the wishes of the sender are to be complied with only if the transmission can be effected without interfering with the service of other stations. LIMITATIONS FOR FUTURE INSTALLATIONS IN VICINITIES OF GOVERNMENT STATIONS. Eighteenth. No station on shore not in actual operation at the date of the passage of this Act shall be licensed for the transaction of commercial business by radio communication within fifteen nautical miles of the following naval or military stations, to wit: ^Vrlington, Virginia; Key West, Florida; San Juan, Porto Rico; North Head and Tatoosh Island, Washington; San Diego, Cali- fornia; and those established or which may be established in Alaska and in the Canal Zone; and the head of the department having control of such Government stations shall, so far as is consistent with the transaction of governmental busi- ness, arrange for the transmission and receipt of commercial radiograms under the provisions of the Berlin convention of nineteen hundred and six and future international conventions or treaties to which the United States may be a party, at each of the stations above referred to, and shall fix the rates therefor, subject 1377 Aug. 13, 1912. Pt.3. STATUTES AT LARGE. Radio Regulation. to control of such rates by Congress. At such stations and wherever and when- ever shore stations open for general public business between the coast and vessels at sea under the provisions of the Berlin convention of nineteen hundred and six and future international conventions and treaties to which the United States may be a party shall not be so established as to insure a constant service day and night without interruption, and in all localities wherever or whenever such service shall not be maintained by a commercial shore station within one hundred nautical miles of a naval radio station, the Secretary of the Navy shall, so far as is consistent with the transactions of governmental business, open naval radio stations to the general public business described above, and shall fix rates for such service, subject to control of such rates by Congress. The receipts from such radiograms shall be covered into the Treasury as miscellaneous re- ceipts. SECRECY OF MESSAGES. Nineteenth. No person or persons engaged in or having knowledge of the operation of any station or stations, shall divulge or publish the contents of any messages transmitted or received by such station, except to the person or persons to whom the same may be directed, or their authorized agent, or to another station employed to forward such message to its destination, unless legally required so to do by the court of competent jurisdiction or other com- petent authority. Any person guilty of divulging or publishing any message, except as herein provided, shall, on conviction thereof, be punishable by a fine of not more than two hundred and fifty dollars or imprisonment for a period of not exceeding three months, or both fine and imprisonment, in the discretion of the court.— (37 Stat., 307, chap. 287.) PENALTIES. For violation of any of these regulations, subject to which a license under sections one and two of this Act may be issued, the owner of the apparatus shall be liable to a penalty of one hundred dollars, which may be reduced or remitted by the Secretary of Commerce * * * r^j^(j fgj. repeated violations of any of such regulations, the license may be revoked. For violation of any of these regulations, except as provided in regulation nineteenth, subject to which a license under section three of this Act may be issued, the operator shall be subject to a penalty of twenty-five dollars, which may be reduced or remitted by the Secretary of Commerce * * * j^j^j f^jj. repeated violations of any such regulations, the license shall be suspended or revoked.— (37 Stat., 308, chap. 287.) Sec. 5. That every license granted under the provisions of this Act for the operation or use of apparatus for radio conmiunication shall prescribe that the operator thereof shall not willfully or maliciously interfere with any other radio communication. Such interference shall be deemed a misdemeanor, and upon conviction thereof the owner or operator, or both, shall be punishable by a fine of not to exceed five hundred dollars or imprisonment for not to exceed one year, or both.— (37 Stat., 308, chap. 287.) Sec. 6. That the expression "radio communication" as used in this Act means an}^ system of electrical communication by telegraphy or telephony 1378 Pt. 3. STATUTES AT LAR3E. Aug. 22, 1912. without the aid of any wire connecting the points from and at which the radio- grams, signals, or other communications are sent or received. — (37 Stat., 308, chap. 287.) Sec. 7. That a person, company, or corporation within the jurisdiction of the United States shall not knowingly utter or transmit, or cause to be uttered or transmitted, any false or fraudulent distress signal or call or false or fraudulent signal, call, or other radiogram of any kind. The penalty for so uttering or transmitting a false or fraudulent distress signal or call shall be a fine of not more than two thousand five hundred dollars or imprisonment for not more than five years, or both, in the discretion of the court, for each and every such offense, and the penalty for so uttering or transmitting, or causing to be uttered or transmitted, any other false or fraudulent signal, call, or other radiogram shall be a fine of not more than one thousand dollars or imprison- ment for not more than two years, or both, in the discretion of the court, for each and every such offense. — (37 Stat., 308, chap. 287.) Sec. 8. That a person, company, or corporation shall not use or operate any apparatus for radio communication on a foreign ship in territorial waters of the United States otherwise than in accordance with the provisions of sec- tions four and seven of this Act and so much of section live as imposes a penalty for interference. Save as aforesaid, nothing in this Act shall apply to apparatus for radio communication on any foreign ship. — (37 Stat., 308, chap. 287.) Sec. 9. That the trial of any offense under this Act shall be in the district in which it is committed, or if the offense is committed upon the high seas or out of the jurisdiction of any particular State or district the trial shall be in the district where the offender may be found or into which he shall be first brought.— (37 Stat., 308, chap. 287.) Sec. 10. That this Act shall not apply to the Philippine Islands. — (37 Stat., 308, chap. 287.) By Executive Order No. 2585, April 6, 1917, the President directed, by authority of this act, "that such radio stations within the j urisdiction of the United States as are required for naval communications shall be taken over by the Government of the United States and used and controlled by it, to the exclusion of any other control or use; and, furthermore, that all radio sta- tions not necessary to the Government of the United States may be closed for radio communication;" and that "the enforce- ment of this order is hereby delegated to the Secretary of the Navy, who is author- ized and directed to take such action in the premises as to him may appear neces- sary. " (See sec. 2 of this act, above set forth.) By Joint Resolution of June 5, 1920 (41 Stat., 1061), provision was made for operation of Government radio stations for the use of the general public until two years from the date thereof; and further that all Government stations shall otherwise be used and operated in accordance with the above act of August 13, 1912. [1912, Aug. 22. Certificates of discharge, etc., in true names.] That the Secretary of War and the Secretary of the Navy be, and they are hereby, au- thorized and required to issue certificates of discharge or orders of acceptance of resignation, upon application and proof of identity, in the true name of such persons as enlisted or served under assumed names, wliile minors or otherwise, in the Army or Navy during any war between the United States and any other nation or people and were honorably discharged therefrom. Applications for said certificates of discharge or amended orders of resignation may be made by or on behalf of persons entitled to them, but no such certificate or order shall 1379 See sections 1426-1427, Revised Statutes, and notes thereto. Aug. 22, 1912. Pt. 3. STATUTES AT LARGE. be issued where a name was assumed to cover a crime or to avoid its conse- quence.— (37 Stat., 324, chap. 329.) Previous provisions on this subject were con- tained in the act of April 14, 1890 (26 Stat., bh^, as amended and reenacted by act of June 25, 1910 (36 Stat., 824). [1912, Aug. 22. Retirement of officers to create vacancies.] That here- after any ofliccr retired under the provisions of sections eight and nine of the act approved March third, eighteen hundred and ninety-nine, an act to reor- ganize and increase the efficiency of the personnel of the Navy and Marine Corps of the United States, shall be retired with the rank and three-fourths the sea pa}^ of the grade from which he is retired. — (37 Stat., 328, chap. 335.) See act of ^larch 3, 1899, section 8 (30 Stat., 1006). Section 9 of the same act, also referred to in the above provision, was repealed bv act of March 3, 1915 (38 Stat., 938). By act of May 30, 1908 (35 Stat., 501), it was provided that ''in computing the pay of retired officers of the Navy, the ten per cent additional pay allowed for sea duty or for shore duty beyond the continental limits of the United States shall not be included." See generally sections 1443-1465, Revised Statutes, as to retired officers of the Navy. [1912, Aug. 22. Chiefs of bureaus, permanent commission and pay provi- sions repealed.] That the portion of the act entitled "An act making appro- priations for the naval service for the fiscal year ending June thirtieth, nine- teen hundred and eleven, and for other purposes," approved June twenty- fourth, nineteen hundred and ten, which reads as follows: "The pay and allowances of chiefs of bureaus of the Navy Department shall be the highest shore-duty pay and allowances of the rear admiral of the lower nine, and all officers of the Navy who are now serving or who shall hereafter serve as chief of bureau in the Navy Department, and are eligible for retire- ment after thirty years' service, shall have, while on the active list, the rank, title, and emoluments of a chief of bureau, in the same manner as is already provided by statute law for such officers upon retirement by reason of age or length of service, and such officers, after thirty years' service, shall be entitled to and shall receive new commissions in accordance with the rank and title hereby conferred," be, and the same is hereby, repealed: Provided, That no officer who has received his commission under the provisions of said act shall be deprived of said commission or the rank, title, and emoluments thereof by virtue of this repeal.— (37 Stat., 329, chap. 335.) The enactment hereby repealed was contained in the act of June 24, 1910 (36 Stat., 607- 608). As to officers who had benefited by that enactment, and the construction thereof, see note to section 421, Revised Statutes, under "IV. Rank, Titles, and Precedence," subheading ''Rank of chiefs of bureaus. ' ' By act of July 1, 1918 (40 Stat, 717), chiefs of bureaus in the Navy Department are to receive the same pay and allowances as chiefs of bureaus in the War Department, and are to have corresponding rank. [1912, Aug. 22. Retired officers, employment on active duty.] Hereafter any naval officer on the retired list may, with his consent, in the discretion of the Secretary of the Navy, be ordered to such duty as he may be able to perform at sea or on shore, and while so employed in time of peace shall receive the pay and allowances of an officer of the active list of the same rank : Provided, That no such retired officer so employed on active duty shall receive, in time of peace, 1380 Pt. 3. STATUTES AT LARGE. Aug. 22, 1912. any greater pay and allowances than the pay and allowances which are now or may hereafter be provided by law for a lieutenant senior grade on the active list of like length of service: And provided further , That any such officer whose retired pay exceeds the highest pay and allowances of the grade of lieutenant senior grade, shall, while so employed in time of peace, receive his retired pay only, in lieu of all other pay and allowances. — (37 Stat., 329, chap. 335.) See notes to sections 1462, 1592, and 1622, Re- vised Statutes; see also section 1225, Re- vised Statutes, and note thereto. By act of Augiist 29, 1916 (39 Stat., 581), gen- eral provision was made for the pay of any retired officer of the naval service detailed on active dutv. March 3, 1915 (38 Stat., 929). See also note to section 418, Revised Statutes. [1912, Aug. 22. Useless papers on vessels, disposal of.] The act "to author- ize and provide for the disposal of useless papers in executive departments," approved February sixteenth, eighteen hundred and eighty-nine, is hereby amended so that accumulations in the files of vessels of the Navy of papers that, in the judgment of the commander in chief of the fleet, are not needed or useful in the transaction of current business and have no permanent value or historical interest may be disposed of by the commander in chief of the fleet by sale, after advertisement for proposals, as waste papers if practicable, or if not practicable, then otherwise, as may appear best for the interests of the Government, the commander in chief of the fleet to make report thereon to the Secretary of the Navy; provided always that no papers less than two years old from the date of the last indorsement thereon and no correspondence, or the related papers, with officers or representatives of a foreign government shall be destroyed or disposed of by such commander in chief of the fleet. — (37 Stat., 329-330, chap. 335.) See acts of Februarv 16, 1889 (25 Stat., 672), March 2, 1895 '(28 Stat., 933), February 16, 1909, section 14 (35 Stat., 622), and [1912, Aug. 22. Extension of enlistments.] That the term of enlistment of any enlisted man in the Navy may, by his voluntary written agreement, under such regulations as may be prescribed by the Secretary of the Navy with the approval of the President, be extended for a period of either one, two, three, or four full years from the date of expiration of the then existing four-year term of enlistment, and subsequent to said date such enlisted men as extend the term of enlistment as authorized in this section shall be entitled to and shall receive the same pay and allowances in all respects as though regularly discharged and reenlisted immediately upon expiration of their term of enlistment, and such extension shall not operate to deprive them upon discharge at the termination thereof of any right, privilege, or benefit to which they would be entitled at the expiration of -a four-year term of enlistment.— (37 Stat., 331, chap. 335.) See notes to sections 1418 and 1573, Re^^.sed Statutes. Extension of minority enlistments in the Navy and Marine Corps was authorized by act of April 25, 1917 (40 Stat., 38). By act of June 4, 1920, section 7 (41 Stat., [1912, Aug. 22. Discharge prior to expiration of enlistment.] That under such regulations as the Secretary of the Navy may prescribe, with the approval of the President, any enlisted man may be discharged at any time within three months before the expiration of his term of enlistment or extended enlistment 1836), enlistments in the Navy and Marine Corps were authorized for terms of two, three, or four years, and it was provided that all laws applicable to four-year enlistments shall apply to enlistments for a shorter period. 1381 Aug. 22, 1912. Pt. S. STA TUTES A T LARGE. without prejudice to any right, privilege, or benefit that he would have received, except pay and allowances for the unexpired period not served, or to which he would thereafter l)ecome entitled, had he served his full term of enlistment or extended enlistment: Provided, That nothing in this act shall be held to reduce or increase the pay and allowances of enlisted men of the Xavy now authorized pursuant to law. — (37 Stat., 331, chap. 335.) See notes to sections 1418, 1569, and 1573, ' men without pay for the unexpired portion of their enlistment, in lieu of discharge by purchase. Re\ised Statutes. By act of August 29, 1916 (39 Stat., 580), authority was granted to furlough enlisted [1912, Aug. 22. Advertising for recruits.] That authority is hereby granted to employ the services of an advertising agency in advertising for recruits under such terms and conditions as are most advantageous to the Government.— (37 Stat., 332, chap. 335.) August 29, 1916 (39 Stat., 614\ March 4, 1917 (39 Stat., 1190i, June 15, 1917 (40 Stat., 214), and July 1, 1918 (40 Stat., 736), being preceded in the act last cited by the word "hereafter." Annual appropriations are made, under • "Bu- reau of Xa^"igation, '" for ■"advertising for and obtaining men and apprentice seamen . " ' (E. g., act June 4, 1920, 41 Stat., 815.; This pro^'ision, which was appended to the appropriation for '"Recruiting, "' under '"Bureau of Xa\igation.' was repeated in the acta of March 4, 1913 (37 Stat., 894), and June 30, 1914 (38 Stat., 395\ except that in the act last cited the words "or agencies" were inserted after the word "agency."' A similar pro^■i3ion under " 'fi^nsportation and recruiting, Marine Corps, was contained in the acts of [1912, Aug. 22. Pearl Harbor, rules governing navigation, anchorage, etc.] For the proper control, protection, and defense of the naval station, harbor, and entrance channel at Pearl Harbor. Territory of Hawaii, the Secretary of the Navy is hereby authorized, empowered, and directed to adopt and pre- scribe suitable rules and regulations governing the navigation, movement, and anchorage of vessels of whatsoever character in the waters of Pearl Harbor, island of Oahu, Hawaiian Islands, and in the entrance channel to said harbor, and to take all necessary measures for the proper enforcement of such rules and regulations. — (37 Stat., 341, chap. 335.) See sections 4233, 4412, and 4413, Re^'ised Statutes, and notes thereto. [1912, Aug, 22. Nautical almanac, exchange of data with foreign offices, use of employees, etc.] The Secretary of the Xav}' is hereby authorized to arrange for the exchange of data with such foreign almanac offices as he may from time to time deem desirable -v^-ith a view to reducing the amount of duplica- tion of work in preparing the different national nautical and astronomical almanacs and increasing the total data which may be of use to navigators and astronomers available for publication in the American Ephemeris and Xautical ^Vlmanac: Provided, That any such arrangement shall be terminable on one year's notice: Provided further, That the work of the Xautical Almanac Office during the continuance of any such arrangement shall be conducted so that in case of emergency the entire portion of the work intended for the use of navi- gators may be computed by the force employed by that office, and without any foreign cooperation whatsoever: Promded further, That any employee of the Xautical Almanac Office who may be authorized in any annual appropriation bill and whose services in whole or in part can be spared from the duty of pre- paring for publication the annual volumes of the American Ephemeris and 1382 Pt. 3. STATUTES AT LARGE. Aug. 23, 1912. Nautical Almanac may be employed by said office in the duty of improving the tables of the planets, moon, and stars, to be used in preparing for publication the annual volumes of the office. — (37 Stat., 342, chap. 335.) - See note to section 436, Re\-ised Statutes. [1912, Aug. 22. Pay of gunnery sergeants.] That the gunnery sergeants of the Marine Corps shall hereafter receive the same pay, and be entitled to the allowances, rank, continuous-service pay, and retired pay of a first sergeant in said corps. — (37 Stat., 351, chap. 335.) See note to section 1612, Re^'ised Statutes. [1912, Aug. 22. Enlisted men, restriction on employment of.] No enlisted men or seamen, not including commissioned and warrant officers, on battle- ships of the Navy, when such battleships are docked or laid up at an}- navy yard for repairs, shall be ordered or required to perform any duties except such as are or may be performed by the crew while at sea or in a foreign port. — (37 Stat., 355, chap. 335.) See act of June 3, 1916, section 35 (39 Stat., 188), as to restrictions on emploj-nient of en- listed men. [1912, Aug. 23, sec. 4. Civil service; efficiency ratings; promotions, demo- tions, and dismissals; honorably discharged sailors, etc.] The Civil Seryice Commission shall, subject to the approval of the President, establish a system of efficiency ratings for the classified service in the several executive depart- ments in the District of Columbia based upon records kept in each department and independent establishment with such frequency as to make them as nearly as possible records of fact. Such system shall provide a minunum rating of efficiency which must be attained by an employee before he may be promoted; it shall also provide a rating below which no employee may fall without being demoted; it shall further provide for a rating below which no employee may fall without being dismissed for inefficiency. AU promotions, demotions, or dis- missals shall be governed by provisions of the civil service rules. Copies of all records of efficiency shall be furnished by the departments and independent establishments to the Civil Service Commission for record in accordance with the provisions of this section: Provided, That in the event of reductions being made in the force in any of the executive departments no honorably discharged soldier or sailor whose record in said department is rated good shall be dis- charged or dropped, or reduced in rank or salary. — (37 Stat., 413, chap. 350.) Any person knowingly violating the provisions of this section shall be summarilv removed from office, and may also upon conviction thereof be punished by a fine of not more than one thousand dollars or by iniprisonment for not more than one year. — (37 Stat., 414, chap. 350.) Bv act of February 28, 1916 (39 Stat., Ih'), a Bureau of Efficiency was created as an independent establishment, and the duties relating to efficiency ratings, which were i mposed upon the Ci\'il Service Commission by this act, were expressly transferred to said bureau. PrcA-iously, a DiA-ision of Efiiciency of the Civil Service Commission had been established bv act of March 4, 1915 (38 Stat., 1007). See note to section 416, Revised Statutes, imder "Honorably discharged soldiers and sailors," and particularly the case of Persing v. Daniels (43 App. D. C, 470), noted thereunder, which was decided prior to the acts above cited pro\-iding for the enforcement of tliis section. See also act of August 15, 1876 (19 Stat., 169), and section 1754, Revised Statutes. See act of August 24, 1912, section 6 (37 Stat., 555), for other pro\isions as to remo^'al of ci^■il employees. 1383 Aug. 23, 1912. Pt. 3. STATUTES AT LARGE. [1912, Aug. 23, sec. 5. Penalty for violating law as to number and pay of employees, etc.] 'i'huL any person violating section lour of tlie legislative, executive, and judicial appropriation Act approved August fifth, eighteen hundred and eighty-two (Statutes at Large, volume twenty-two, page two hundred and fifty-five), shall be summarily removed from office, and may also upon conviction thereof be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year. — (37 Stat., 414, chap. 350.) See act of August 5, 1882, section 4 (22 Stat. , 255-256) ; see also section 3G82, Revised Statutes, and act of June 22, 1900, section 6 (34 Stat., 449). [1912, Aug. 23, sec. 6. Apportionment of contingent funds, etc.] That in addition to the apportionment required by the so-called antideficiency Act, approved February twenty-seventh, nineteen hundred and six (Statutes at Large, volume thirty-four, page forty-nine), the head of each executive depart- ment shall, on or before the beginning of each fiscal year, apportion to each office or bureau of his department the maximum amount to be expended therefor during the fiscal year out of the contingent fund or funds appropriated for the entire year for the department, and the amounts so apportioned shall not be increased or diminished during the year for which made except upon the written direction of the liead of the department, in which there sliall be fully expressed his reasons therefor; and hereafter there shall not be purchased out of any other fund any article for use in any office or bureau of any executive department in Washington, District of Columbia, which could be purchased out of the appropriations made for the regular contingent funds of such de- partment or of its offices or bureaus. — (37 Stat., 414, chap. 350.) The act of February 27, 1906 (34 Stat., 49), referred to in this section, amended and re- enacted section 3679, Revised Statutes; see that section and note thereto. [1912, Aug. 23, sec. 7. Telephones in private residences, etc.] That no money appropriated by this or any other Act shall be expended for telephone service installed in any private residence or private apartment or for tolls or other charges for telephone service from private residences or private apartments, except for long-distance telephone tolls required strictly for the public business, and so shown by vouchers duly sworn to and approved by the head of the department, division, bureau, or office in which the official using such telephone or incurring the expense of such tolls shall be employed. — (37 Stat., 414, chap. 350.) By a parap^aph in the naval appropriation act of August 29, 1916 (39 Stat., 681), the accounting officers of the Treasury were "authorized and directed to allow in the accounts of disbursing officers of the Navy all payments for telephones in Govern- ment quarters" which had been dis- allowed under this section "by decision of the comptroller. " [1912, Aug. 23, sec. 8. Distribution of departmental publications by Public Printer.] That no money appropriated by this or any other Act shall be used after the first day of October, nineteen hundred and twelve, for services in any executive department or other Government establishment at Washington, District of Columbia, in the work of addressing, wrapping, mailing, or other- wise dispatching any publication for public distribution, except maps, weather reports, and weather cards issued by an executive department or other Govem- 1384 Pt. 3. STATUTES AT LARGE. Aug. 24, 1912. merit establishment at Washington, District of Columbia, or for the purchase of material or supplies to be used in such work; and on and after October first, nineteen hundred and twelve, it shall be the duty of the Public Printer to per- form such work at the Government Printing Office. Prior to October first, nineteen hundred and twelve, each executive department and other Govern- ment establishment at Washington, District of Columbia, shall transfer to the Public Printer such machines, equipment, and materials as are used in address- ing, wrapping, mailing, or otherwise dispatching publications; and each head of such executive department and other Government establishment at Washing- ton, District of Columbia, shall furnish from time to time to the Public Printer mailing lists, in convenient form, and changes therein, or franked slips, for use in the public distribution of publications issued by such department or estab- lishment; and the Public Printer shall furnish copies of any publication only in accordance with the provisions of law or the instruction of the head of the de- partment or establishment issuing the publication. The employment of all persons in the several executive departments and other Government estab- lishments at Washington, District of Columbia, wholly in connection with the duties herein transferred to the Public Printer, or whose services can be dis- pensed with or devolved upon another because of such transfer, shall cease and determine on or before the first day of October, nineteen hundred and twelve, and their salaries or compensation shall lapse for the remainder of the fiscal year nineteen hundred and thirteen and be covered into the Treasury. A de- tailed statement of all machines, equipment, and material transferred to the Government Printing Office by operation of this provision and of all employ- ments discontinued shall be submitted to Congress at its next session by the head of each executive department and other Government establishments at Washington, District of Columbia, in the annual estimates of appropriations: Provided, That nothing in this section shall be construed as appl^nng to orders, instructions, directions, notices, or circulars of information, printed for and issued by any of the executive departments or other Government establish- ments or to the distribution of public documents by Senators or Members of the House of Representatives or to the folding rooms and document rooms of the Senate or House of Representatives. — (37 Stat., 414^1.5, chap. 350.) See act of January 12, 1895, sections 18, 61, 73, and 92 (28 Stat., 603, 610, 620, and 623). [1912, Aug-. 23, sec. 9. Estimates, form and time of submission.] That until otherwise provided by law, the regular annual estimates of appropriations for expenses of the Government of the United States shall be prepared and sub- mitted to Congress, by those charged with the duty of such preparation and submission, only in the form and at the time now required by law, and in no other form and at no other time. — (37 Stat., 415, chap. 350.) See sections 430 and 3660, Revised Statutes, and laws noted thereunder. [1912, Aug. 24, sec. 6. Estimates, lump sum appropriations ; notes in Book of Estimates.] That there shall be submitted hereafter, in the annual Book of Estimates following every estimate for a general or lump-sum appropriation, except public buildings or other public works constructed under contract, a statement showing in parallel columns: 1385 Aug. 24, 1912. Pt. .?. STATUTES AT LARGE. First, the niimbor of persons, if any, intended to be employed and the rates of compensation to each, and the amounts contemplated to be expended for each of any other o])jccts or classes of expenditm'cs specified or contemplated in the estimate, including a statement of estimated unit cost of any construction work pro})osed to be done; and Second, the number of persons, if any, employed and the rate of compen- sation paid each, and the amounts expended for each other object or class of expenditure, and the actual unit cost of any construction work done, out of the appropriation corresponding to the estimate so submitted, during the com- pleted fiscal year next preceding the period for which the estimate is submitted. Other notes shall not be submitted following any estimate embraced in the annual Book of Estimates other than such as shall suggest changes in form or order of arrangement of estimates and appropriations and reasons for such changes.— (37 Stat., 487, chap. 355; 38 Stat., 680, chap. 223.) This section was expressly amended and reen- acted to read as above by act of August 1, 1914, section 10 (38 Stat, 680). See sections 430 and 3600, ReAdsed Statutes, and laws noted thereunder; see also act of July 1, 1916, section 4 (39 Stat., 336), which expressly modified this section in certain particulars. [1912, Aug. 24, sec. 7. Permanent appropriations defined.] No specific or indefinite appropriation made hereafter in any regular annual appropriation Act shall be construed to be permanent or available continuously without reference to a fiscal year unless it belongs to one of the following five classes: "Rivers and harbors," ''lighthouses," "fortifications," ''public buildings," and "pay of the Navy and Marine Corps," last specifically named in and ex- cepted from the operation of the provisions of the so-called "covering-in Act" approved June twentieth, eighteen hundred and seventy-four, or unless it is made in terms expressly providing that it shall continue available beyond the fiscal year for which the appropriation Act in which it is contained makes provision. — (37 Stat., 487, chap. 355.) See Section 3689, Revised Statutes, and act of notes thereto; see also act of July 26, 1886, June 20, 1874, section 5 (18 Stat., 110), and section 2, (24 Stat., 157). [1912, Aug. 24, sec. 8. Oaths administered by chief clerks and other em- ployees.] After June thirtieth, nineteen hundred and twelve, postmasters, assistant postmasters, collectors of customs, collectors of internal revenue, chief clerks of the various executive departments and bureaus, or clerks desig- nated by them for the purpose, the superintendent, the acting superintendent, custodian, and principal clerks of the various national parks and other Govern- ment reservations, superintendent, acting superintendents, and principal clerks of the different Indian superintendencies or Indian agencies, and chiefs of field parties, are required, empowered, and authorized, when requested, to administer oaths, required by law or otherwise, to accounts for travel or other expenses against the United States, with like force and effect as officers having a seal; for such services when so rendered, or when rendered on demand after said date by notaries public, who at the time are also salaried officers or employees of the United States, no charge shall be made; and on and after July first, nineteen hundred and twelve, no fee or money paid for the services herein described shall be paid or reimbursed by the United States, — (37 Stat., 487, chap. 355.) See section 183, Revised Statutes, and note thereto. 1386 PL 3. STATUTES AT LARGE. Aug. 24, 1912. [1912, Aug. 24, sec. 9. Fur seals, etc. ; use of naval forces to protect.] That it shall be the duty of the President to cause a guard or patrol to be main- tained in the waters frequented by the seal herd or herds and sea otter, in the protection of which the United States is especially interested, composed of naval or other public vessels of the United States designated by him for such service; and any officer of any such vessel engaged in such service and any other officers duly designated by the President may search any vessel of the United States, in port, or in territorial waters of the United States, or on the high seas, when suspected of having violated, or being about to violate, the provisions of said convention, or of this Act, or of any regulation made thereunder, and may seize such vessel and the officers and crew thereof and bring them into the most accessible port of the Territory or of any of the States mentioned in the eighth section of this Act for trial. — (37 Stat., 501, chap. 373.) Sec. 10. That any vessel or person described in the first section of this Act offending or being about to offend against the prohibitions of the said con- vention, or of this Act, or of the regulations made thereunder, may be seized and detained by the naval or other duly commissioned officers of any of the par- ties to the said convention other than the United States, except within the territorial jurisdiction of one of the other of said parties, on condition, however, that when such vessel or person is so seized and detained by officers of any party other than the United States such vessel or person shall be delivered as soon as practicable at the nearest point to the place of seizure, with the vritnesses and proofs necessary to establish the offense so far as they are under the Control of such party, to the proper official of the United States, whose courts alone shall ha.ve jurisdiction to try the offense and impose the penalties for the same: Provided, however, That the said officers of any party to said convention other than the United States shall arrest and detain vessels and persons, as in this section specified, only after such party, by appropriate legislation or otherwise, shall have authorized the naval or other officers of the United States duly com- missioned and instructed by the President to that end to arrest, detain, and deliver to the proper officers of such party vessels and subjects under the juris- diction of that Government offending against said convention or any statute or regulation made by that Government to enforce said convention. The Presi- dent of the United States shall determine by proclamation when such authority has been given by the other parties to said convention, and his determination shall be conclusive upon the question; and such proclamation may be modified, amended, or revoked by proclamation of the President whenever, in his judg- ment, it is deemed expedient. — (37 Stat., 501-502, chap. 373.) thirtieth parallel of north latitude and including the seas of Bering, Kamchatka, Okhotsk, and Japan; nor shall any such person or vessel kill, captxu-e, or piu-sue sea otter in any of the waters mentioned beyond the distance of three miles fi'om the shore line of the territory of the United States." See notes to sections 1529 and 1536, Revised. Statutes. The first section of this act read as follows: "That no citizen of the United States, nor person owing duty of obedience to the laws or the treaties of the United States, nor any of their vessels, nor any vessel of the United States, nor any person belonging to or on board of such vessel, shall kill, capture, or pursue, at any time or in any manner whatever, any fur seal in the waters of the north Pacific Ocean north of the [1912, Aug. 24, sec. 3. Navy mail clerks, bonds.] That every Navy mail clerk and assistant Navy mail clerk shall give bond to the United States in 54641'— 22 88 1387 Aug. 24, 1912. Pt. 3. STATUTES A T LARGE. such penal .sum as the Postmaster General may deem sufficient- for the faithful performance of his duties as such clerk. — (37 Stat., 554, chap. 389.) See act of May 27, 1908 (35 Stat., 417^18), and laws quoted thereunder. [1912, Aug. 24, sec. 6. Civil service employees, discharge; right to petition Congress, etc.] — That no person in the classified civil service of the United States shall he removed therefrom except for such cause as will promote the ofTioiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reason- able time for personally answering the same in writing; and affidavits in sup- port thereof; but no examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer making the removal; and copies of charges, notice of hearing, answer, reasons for removal, and of the order of removal shall be made a part of the records of the proper department or office, as shall also the reasons for reduction in rank or compensation; and copies of the same shall be furnished to the person affected upon request, and the Civil Serv- ice Commission also shall, upon request, be furnished copies of the same * * *. The right of persons employed in the civil service of the United States, either individually or collective!}^, to petition Congress, or any Member thereof, or to furnish information to either House of Congress, or to any com- mittee or member thereof, shall not be denied or interfered with. — (37 Stat., 555, chap. 389.) See act of August 23, 1912, section 4 (37 Stat., 413-414), and references thereunder; see also note to section 416, Revised Statutes. As to influencing legislation, see act of August 24, 1912, section 6 (37 Stat., 555), and note to Constitution, Article I, section 1. [1912, Aug. 24. Ordnance stores, sales by War Department; payment by departments.] That hereafter when authorized transfers or sales of ordnance or ordnance stores are made to another bureau of the War Department, or to another executive department of the Government, payment therefor shall be made by the proper disbursing officer of the bureau, office, or department con- cerned. When the transaction is between two bureaus of the War Department, the price to be charged shall be the cost price of the stores, including the cost of inspection. When the transaction is between the Ordnance Department and another executive department of the Government, the price to be charged shall include the cost price of the stores and the costs of inspection and transpor- tation.— (37 Stat., 589, chap. 391.) See act of March 3, 1909 (35 Stat., 751), as to May 21, 1920, section 7 (41 Stat., 613), sale of Army ordnance property to officers as to use of appropriations for interchange of Navy and Marine Corps. of supplies, etc., between departments See act of July 11, 1919 (41 Stat., 132), as and bureaus. to interchange of supplies, etc., between See notes to sections 418 and 1135, Revised Army and Navy without compensation. Statutes, as to transfers, etc., of Govem- See acts of March 4, 1915 (38 Stat., 1084), and ment property. [1912, Aug. 24, sec. 6. Cadet service, Naval Academy, not credited in Army.] That hereafter the service of a cadet who may hereafter be appointed to the United States Military Academy or to the Naval Academy shall not be counted in computing for any purpose the length of service of any officer of the Army. — (37 Stat., 594, chap. 391.) See act of March 4, 1913 (37 Stat., 891). 1388 notes to sections 169 and 416, Revised Statutes, and see acts of June 22, 1906, section 5 (34 Stat. ,449), and August 1, 1914, section 12 (38 Stat., 680). Ft. 3. STATUTES A T LARGE. Mar. 2, 1913. [1912, Aug. 26, sec. 7. Lump sum employees, restrictions on salaries and transfers.] That no part of any money contained herein or hereafter appro- priated in lump sum shall be available for the payment of personal services at a rate of compensation in excess of that paid for the same or similar services during the preceding fiscal year; nor shall any person employed at a specific salary be hereafter transferred and hereafter paid from a lump-sum appropria- tion a rate of compensation greater than such specific salary, and the heads of departments shall cause this provision to be enforced: Provided, That this sec- tion shall not apply to mechanics, artisans, their helpers and assistants, laborers, or any other employees whose duties are of similar character and required in carrying on the various manufacturing or constructing operations of the Government.— (37 Stat., 626, chap. 408; 37 Stat., 790, chap. 142.) This section was expressly amended and reenacted to read as above by act of March 4, 1913, section 4 (37 Stat., 790). See acts of October 6, 1917 (40 Stat., 383), and March 28, 1918 (40 Stat., 498); see also [1913, Feb. 26. Handwriting evidence.] That in any proceeding before a court or judicial officer of the United States where the genuineness of the hand- writing of any person may be involved, any admitted or proved handwriting of such person shall be competent evidence as a basis for comparison by wit- nesses, or by the jury, court, or officer conducting such proceeding, to prove or disprove such genuineness. — ^(37 Stat., 683, chap, 79.) See sections 859-906, Revised Statutes, as to evidence in criminal proceedings, etc. ; see also note to section 1624, Revised [1913, Mar. 2. Naval records, transfer to the Navy Department; publication.] That, within the limits of the appropriation herein made, the Secretary of War is hereby authorized and directed to collect or copy and classify, with a view to publication, the scattered military records of the Revolutionary War, including all troops acting under State authority, and the Secretary of the Navy is hereby authorized and directed to collect or copy and classify, with a view to publica- tion, the scattered naval records of the Revolutionary War. Sec. 2. That all such records in the possession or custody of any official of the United States shall be transferred, the military records to the War De- partment and the naval records to the Navy Department. Sec. 3. That there is hereby appropriated for the purposes of this Act, out of any money in the Treasury not otherwise appropriated, twenty-five thousand dollars for the War Department and seven thousand dollars for the Navy Department: Provided, That the aforesaid sums of money shall be expended, respectively, under the direction of the Secretary of War and the Secretary of the Navy, and that they shall make to Congress each year detailed statements showdng how the money herein appropriated has been expended and to whom: Provided further. That no part of the sum hereby appropriated shall be used in the purchase of any such records that may be discovered either in the hands of private owners or in public depositories. — (37 Stat., 723, chap. 94.) See acts of April 27, 1904 (33 Stat., 403), and June 29, 1906 (34 Stat., 579); and see section 418, Revised Statutes, and note thereto. 1389 Statutes, articles 29 and 42, as to evi- dence before courts-martial. Mar. 4, 1013. PL 3. STATUTES AT LARGE. [1913, Mar. 4. Midshipman service, not credited as naval service.] Here- after the service of a niidshipinaii at the United States Naval Academy, or that of a cadet at the United States Mihtary Academy, who may hereafter be appointed to the United States Naval Academy, or to the United States Mihtary Academy, shall not be counted in computing for any purpose the length of service of any officer in the Navy or in the Marine Corps. — (37 Stat., 891, chap. 148.) See note to next paragraph and see act of August 24, 1912 (37 Stat., 594). [1913, Mar. 4. longevity pay, constructive service, precedence.] That so much of an act entitled "An act to reorganize and increase the efficiency of the personnel of the Navy and Marine Corps," approved March third, eighteen hundred and ninety-nine, which reads as follows: ''and that all officers, includ- ing warrant officers, who have been or may be appointed to the Navy from civil life shall, on the date of appointment, be credited for computing their pay, with five years' service," shall not apply to any person entering the Navy from and after the passage of tliis act: Provided, That section fourteen hunderd and eighty-six of the Revised Statutes shall not apply in the case of officers who enter the Navy after the passage of this act and all such officers shall take precedence when of the same grade according to their respective dates of com- mission in that grade. — (37 Stat., 891-892, chap. 148.) See note to section 1443, Re\ised Statutes, as to length of service for retirement. The pro\dsion of law quoted in this paragi-aph is contained in section 13 of the Na\^ personnel act approved March 3, 1899 (30 Stat., 1007). See preceding paragraph as to midshipman service. See act of June 29, 1906 (34 Stat., 554), as to cadet service during the civil war. See note to section 1486, Revised Statutes, as to constructive service for precedence. See note to section 1556, Revised Statutes, as to longevity pay. [1913, Mar. 4. Pay on promotion from date stated in commission.] That all officers of the Navy who, since the third day of March, eighteen hundred and ninety-nine, have been advanced or may hereafter be advanced in grade or rank pursuant to law shall be allowed the pay and allowances of the higher grade or rank from the dates stated in their commissions. — (37 Stat., 892, chap 148.) See act of June 22, 1874 (18 Stat., 191); and see notes to sections 1561 and 1562, Revised Statutes. [1913, Mar 4. Leave of absence, civil employees, additional pay not allowed.] That employees while taking their leaves of absence shall not receive compensa- tion for services rendered during the period of such leave of absence in addition to leave pay.— (37 Stat., 893, chap. 148.) See note to section 1545, Re^•ised Statutes, as to leaves of absence, employees at navy yards and stations. This was a proviso following a clause relating to pay during the ensuing fiscal year for "clerical, inspection, and messenger ser- vice in navy yards, naval stations, and purchasing pay offices." [1913, Mar. 4. Contracts to be awarded by items.] That from and after the passage of this act all awards of contracts for provisions for the Navy shall be made by individual items; the contract for each item being awarded to the lowest responsible bidder. — (37 Stat., 904, chap. 148.) See sections 3718 and 3724, Revised Statutes, and notes thereto. 1390 PL 3. STATUTES AT LARGE. June 23, 1913. [1913, Mar. 4. Servants in commissary department, Naval Academy.] That hereafter such additional payments from the midsliipmen's commissary fund as the superintendent of the Naval Academy may deem necessary may be made to the servants authorized in the commissary department. — (37 Stat., 907, chap. 148.) A slightly different provision was contained in the act of August 22, 1912 (37 Stat.. 349). See section 1527, Revised Statutes, and note thereto. [1913, Mar. 4. Sale of Marine Corps stores to naval and civilian personnel.] Pro\T[sions, Marine Corps: * * * Provided, That hereafter so much of this appropriation as may be necessary may be applied for the purchase, for sale to officers, enlisted men, and civilian employees, of such articles of sub- sistence stores as may from time to time be designated and under such regula- tions as may be prescribed by the Secretary of the Navy. — (37 Stat., 909, chap. 148.) Above clause held to be permanent leg- islation.^ — When the question of repeating the above-quoted provision in the naval appropria- tion act for the fiscal year 1918 was presented to the House Committee on Naval Affairs, it was decided not to do so, for the reason that the committee concurred with the vieiy taken by the Marine Headquarters that the clause above quoted from the act of August 29, 1916, was permanent legislation. This will be seen by reference to the hearings before the Committee on Naval Affairs of the House of Representa- tives (64th_Cong., 2d sess., p. 365). That this interpretation is correct there can be little This clause was repeated in acts of June 30, 1914 (38 Stat., 411), March 3, 1915 (38 Stat., 949), and August 29, 1916 (39 Stat., 613), after which it was omitted. See act of March 3, 1909 (35 Stat., 768), as to sale of stores to naval and ci\iUan personnel. See act of August 29, 1916 (39 Stat. , 630), author- izing sales of Army subsistence supplies to officers and enlisted men of the Na\'y and Marine Corps, and sales of Na^vy and Marine Corps subsistence supplies to officers and enlisted men of the Army. See act of March 6, 1920 (41 Stat., 506, 507), authorizing sale of Navy and Marine Corps quartermaster supplies to officers and en- listed men of the Coast Guard, and to offi- cers of the Public Health Service. See act of June 5, 1920 (41 Stat., 976), authoriz- ing sale of Navy and Marine Corps sub- sistence stores and other supplies to honor- ably discharged officers and enUsted men of the Army, Navy, and Marine Corps, while receiving treatment from the Public Health Service. doubt, in view of the word "hereafter" con- tained in the clause, it being well understood that the said word makes permanent provisions contained in appropriation acts. The words "this appropriation" should be construed as meaning, "the appropriation, 'Provisions, Marine Corps. ' ' ' (File 26255-614, Feb. 4, 1921.) [1913, May 1, sec. 3. Rented buildings, District of Columbia.] Hereafter the statement of buildings rented within the District of Columbia for use of the Government, required by the Act of July sixteenth, eighteen hundred and ninety-two (Statutes at Large, volume twenty-seven, page one hundred and ninety-nine) , shall indicate as to each building rented the area thereof in square feet of available floor space for Government uses, the rate paid per square foot for such floor space, the assessed valuation of each building, and what propor- tion, if any, of the rental paid includes heat, light, elevator, or other service. — (38 Stat., 3, chap. 1.) See act of Julv 16, 1892 (27 Stat., 199), and laws noted thereunder; and see act of May 29, 1920, section 7 (41 Stat., 691). • [1913, June 23, sec. 3. Estimates, official designated for preparation of.] That hereafter the head of each executive department and other Government establishment shall, on or before July first in every fiscal year, designate from among the officials employed therein one person whose duty it shall be to super- vise the classification and compilation of all estimates of appropriations, 1391 Feb. 16, 1914. P/. .5. STATUTES AT LARGE. including supplemental and deficiency estimates to be submitted by such de- partment or establishment. In the performance of their duties persons so designated shall have due regard for the rccfuirements of all laws respecting the preparation of estimates, including the manner and time of their submission through the Treasury Department to Congress; they shall also, as early as may be practicable, eliminate from all such estimates unnecessary words and make imiform the language commonly used in expressing purposes or conditions of appropriations. — (38 Stat., 75, chap. 3.) [1913, July 9. Midshipmen.] Midshipmen on graduation shall be com- missioned ensigns in the Navy, or may be assigned by the Secretary of the Navy to fill vacancies in the lowest commissioned grades of the Marine Corps or Staff Corps of the Navy.— (38 Stat., 103.) [1913, Dec. 19. Major general commandant, Marine Corps; tenure of office, etc.] That hereafter when a vacancy shall exist in the position of commandant of the Marine Corps the President may appoint to such position, by and with the advice and consent of the Senate, an officer of the Marine Corps on the active list not below the grade of field officer, who shall hold office as such commandant for a term of four years, unless sooner relieved, and who, while so serving, shall have the rank, pay, and allowances of a major general in the Army; and any officer appointed under the provisions of this Act who shall be retired from the position of commandant of the Marine Corps, in accordance with the provisions of sections twelve hundred and fifty-one, sixteen hundred and twenty-two, and sixteen hundred and twenty-three. Revised Statutes of the United States, or by reason of age or length of service, shall have the rank and retired pay of a major general; if retired for any other reason, he shall be placed on the retired list of officers of the grade to which he belonged at the time of his retirement: Provided, That an officer serving as commandant shall be carried as an additional number in his grade while so serving, and after his return to duty in his grade until said grade is reduced to the nimiber authorized by law: Provided further, That nothing herein contained shall operate to increase or reduce the total number of officers in the Marine Corps now provided by law.— (38 Stat., 241, chap. 3.) See notes to sections 1601 and 1622, Revised Statutes, and act of August 29, 1916 (39 Stat., 609). [1914, Feb. 16, sec. 21. Civilians commissioned in Regular Navy in time of war ; reappointment of former officers ; etc.] That, for the purpose of securing a list of persons especially qualified to hold commissions in the Navy or in any reserve or volunteer naval force which may hereafter be called for and organ- ized under the authority of Congress, other than a force composed of Organized Naval Militia, the Secretary of the Navy is authorized from time to time to convene examining boards at suitable and convenient places in different parts of the United States, who shall examine as to then* qualifications for naval duties all applicants who shall have served in the Regular Navy of the United States or in the Organized Naval Militia of any State or Territory or the Dis- trict of Columbia. Such examination shall be under rules and regulations 1392 Ft. 3. STATUTES AT LARGE. Mar. 12, 1914. prescribed by the Secretary of the Navy. The record of previous service of the apphcant shall be considered as part of the examination. Those applicants who pass such examinations shall be certified as to their fitness for naval duties and rank, and shall, subject to a physical examination at any time, constitute an eligible class for commissions, pursuant to such certification, in any volunteer naval force hereafter called for and organized under the authority of Congress other than a force composed of Organized Naval Militia; and the President is hereby further authorized, upon the outbreak of war, or when, in his opinion, war is imminent, to commission in the Regular Navy for the exigency of such war such of the persons whose names have been certified as above provided as he may select: Provided, That no one shall be commissioned to a higher rank than the rank for which he may have been recommended by said examining board: And provided further, That the President may also commission or war- rant as of the highest rank formerly held by him, or the present equivalent of such former rank in case the nomenclature or some of the specific duties of the same may have been changed, any person who having been formerly a com- missioned or warrant officer of the United States Navy shall have been honor- ably discharged from the service: And 'provided further , That persons may be commissioned in the Navy for engineer duties only, and for all line duties other than engineer duties, and when so conmiissioned shall have the full rank, pay, precedence, and so forth, of the line grade for which they are commissioned. — (38 Stat., 289-290, chap. 21.) The remaining sections of this act related to the Naval Militia, and were repealed by act of July 1, 1918 (40_Stat., 708), and later revived, in part, until June 30, 1922, by act of June 4, 1920 (41 Stat., 817). See act of August 29, 1916 (39 Stat., 587), creat- ing a Naval Reserve Force, and amend- ments noted thereunder; see also note to section 1363, Revised Statutes. As to officers for engineering duty only, see acts of August 29, 1916 (39 Stat., 580), and March 3, 1915 (38 Stat., 930); see also notes to sections 1390, 1404, and 1488, Revised Statutes. Former oflB.cer dismissed from the Navy; effect of pardon. — The act of February 16, 1914, section 21 (38 Stat., 290), by its terms applies only to officers who have been "honor- ab 1 y discharged from the service . ' ' Und er that act, an officer of the Navy who has been dis- missed by sentence of court-martial, and subse- quently pardoned for the offense, is ineligible for reappointment to the Navy. (31 Op. Atty. Gen., 225; see also sec. 1441, Revised Statutes, and act of Aug. 29, 1916, 39 Stat., 587-588; and see note to Constitution, Art. II, sec. 2, clause 1, as to effect of pardon.) [1914, Mar. 12. Alaskan railroads; transportation of coal; employment of naval officers, etc.] That the President of the United States is hereby em- powered, authorized, and directed to adopt and use a name by which to desig- nate the railroad or railroads and properties to be located, owned, acquired, or operated under the authority of this Act; to employ such officers, agents, or agencies, in his discretion, as may be necessary to enable him to carry out the purposes of this Act; to authorize and require such officers, agents, or agencies to perform any or all of the duties imposed upon him by the terms of this Act; to detail and require any officer or officers in the Engineer Corps in the Army or Navy to perform service under this Act; to fix the compensation of all officers, agents, or employees appointed or designated by him; to designate and cause to be located a route or routes for a line or lines of railroad in the Territory of Alaska not to exceed in the aggregate one thousand miles, to be so located as to connect one or more of the open Pacific Ocean harbors on the southern 1393 May 8, 1914. Ft. 3. S TA TUTES A T LARGE, coast of Alaska with the navigable waters in the interior of Alaska, and with a coal field or fields so as best to aid in the development of the agricultural and mineral or other resources of Alaska, and the settlement of the public lands therein, and so as to provide transportation of coal for the Army and Navy, transportation of troops, arms, munitions of war, the mails, and for other governmental and public uses, and for the transportation of passengers and property; to construct and build a railroad or railroads along such route or routes as he may so designate and locate * * *. — (38 Stat., 305, 306, chap. 37.) See acts of October 20, 1914, section 2 (38 Stat., 741), and May 28, 1908, section 2 (35 Stat., 424); see also section 3711, Revised Statutes. [1914, Apr. 6. Subsistence for travel outside District of Columbia.] On and after July first, nineteen hundred and fourteen, unless otherwise expressly provided by law, no officer or employee of the United States shall be allowed or paid any sum in excess of expenses actually incurred for subsistence wliile traveling on duty outside of the District of Columbia and away from his desig- nated post of duty, nor any sum for such expenses actually incurred in excess of $5 per day; nor shall any allowance or reimbursement for subsistence be paid to any ofiicer or employee in any branch of the public service of the United States in the District of Colimibia unless absent from his designated post of duty outside of the District of Columbia, and then only for the period of time actually engaged in the discharge of official duties. — (38 Stat., 318, chap. 52.) See act of August 1, 1914, section 13 (38 Stat., 680), and see note to section 1566, Revised Statutes. [1914, Apr. 6, sec. 6. Efficiency experts, restrictions on employment of, etc.] That no part of any money appropriated in this or any other Act shall be used for compensation or payment of expenses of accountants or other experts in inaugurating new or changing old methods of transacting the business of the United States or the District of Columbia unless authority for employment of such services or pajonent of such expenses is stated in specific terms in the Act making provision therefor and the rate of compensation for such services or expenses is specifically fixed therein, or be used for compensation of or expenses for persons, aiding or assisting such accountants or other experts, unless the rate of compensation of or expenses for such assistants is fixed by officers or employees of the United States or District of Columbia having authority to do so, and such rates of compensation or expenses so fixed shall be paid only to the person so employed. — (38 Stat., 335, chap. 52.) [1914, May 8. Red Cross, loan of naval equipment, etc.] That the Secretary of War and the Secretary of the Navy be, and are hereby, authorized to issue, each at his discretion and under proper regulations to be prescribed by him, out of equipment for medical and other establishments on hand, belonging to the Government and which can be temporarily spared, such articles as may appear to be required for instruction and practice by organizations formed by the American National Red Cross, for the purpose of rendering aid to the Army and Navy in war. Sec. 2. That the regulations prescribed by the Secretary of War or by the Secretary of the Navy, in pursuance of the authority granted by section 1394 PL 3. STATUTES AT LARGE. June 30, 1914. one, shall provide for the immediate return of the articles of equipment loaned the American National Red Cross when called for by the authority wliich issued them; and the said Secretaries shall require a bond in each case, in double the value of the property, for the care and safe-keeping thereof and for the return of the same when required. — (38 Stat., 771, Res. No. 15.) Seeacteof April 24, 1912 (37 Stat., 90-91), and section 418, Revised Statutes, and note August 29, 1916 (39 Stat., 581); see also thereto. [1914, Jnne 30. Mileage, not paid if transportation furnished.] That here- after no mileage shall be paid to any officer where Government transporta- tion is furnished such officer. — (38 Stat., 393, chap. 130.) of the Navy. An identical pro\d8ion was contained in the same act (38 Stat., 410), under the heading, '•Marine Corps," sub- heading, "Mileage." See notes to sections 1566 and 1612, Revised Statutes. The above proviso was contained in the act cited, under "Pay, Miscellaneous," which made appropriation for mileage of officers [1914, June 30. Naval Home, effects of deceased inmates.] That hereafter all moneys belonging to a deceased beneficiary of the Naval Home or derived from the sale of his personal efi^ects, not claimed by his legal heirs or next of kin, shall be deposited with the pay officer of the Naval Home, and if any sum so deposited has been or shall hereafter be unclaimed for a period of two years from the death of such beneficiary it shall be deposited m. the Treasury to the credit of the naval pension fund: And 'provided further, That the governor of the Naval Home is hereby authorized and directed, under such regulations as may be prescribed by the Secretary of the Navy, to make diligent inquiry in every instance after the death of an inmate to ascertain the whereabouts of his heirs or next of kin: And provided further, That claims may be presented hereunder at any time within five years after moneys have been so deposited in the Treasury, and, when supported by competent proof in any case after such deposit in the Treasury, shall be certified to Congress for consideration. — (38 Stat., 398, chap. 130.) A somewhat different pro\dsion on the same subject was contained in act of August 22, 1912 (37 Stat., 335). [1914, June 30. Naval Home, pensions of inmates.] That the pensions of beneficiaries of the Naval Home shall be disposed of in the same manner as prescribed for iimiates of the Soldiers' Home, as provided for in section four of the act approved March third, eighteen hundred and eighty-three, under such regulations as the Secretary of the Navy may prescribe, except that in the case of death of any beneficiary leaving no heirs at law nor next of kin any pension due him shall, subject to the foregoing provisions, escheat to the naval pension fund. — (38 Stat., 398, chap. 130.) See note to section 4756, Revised Statutes, and see 31 Op. Atty. Gen., 268. See act of March 3, 1883, section 4 (22 Stat., [1914, June 30. Purchase of shells and projectiles.] That hereafter no part of any appropriation shall be expended for the purchase of shells or projectiles for the Navy except for shells or projectiles purchased in accordance with the terms and conditions of proposals submitted by the Secretary of the Navy to all the manufacturers of shells and projectiles and upon bids received in accord- 1395 See sections 4750, 4810-4818, Revised Statutes, and notes thereto. 564), quoted under section 4813, Revised Statutes. June 30, 1914. Pt. S. STATUTES AT LARGE. anco with the terms and requirements of such proposals: Provided, That this restriction shall not apply to purchases of shells or projectiles of an experi- mental nature or to be used for experimental purposes and paid for from the appropriation ''Experiments, Bureau of Ordnance." — (38 Stat., 398-399, chap. 130.) A similar provision was contained in act of See sections 3718 and 3721, Revised Statutes, March 4, 1913 (37 Stat., 896) and notes thereto. [1914, June 30. Purchases abroad, free of duty.] That hereafter the Sec- retary of the Navy is hereby authorized to make emergency purchases of war material abroad: And provided further, That when such purchases are made abroad, this material shall be admitted free of duty. — (38 Stat., 399, chap. 130.) See sections 3723, 3725, and 3728, Revised Statutes, and notes thereto. Similar provisions, without the word '"here- after,"' were contained in acts of August 22, 1912 (37 Stat., 335), and March 4, 1913 (37 Stat., 896). [1914, June 30. Enlisted men, daily average number.] That hereafter the number of enlisted men of the Navy and Marine Corps provided for shall be construed to mean the daily average number of enlisted men in the naval service during the fiscal year. — (38 Stat., 403, chap. 130.) See sections 1417 and 1596, Revised Statutes, and notes thereto. [1914, June 30. Acting chaplains, appointment, rank, and pay.] The grade of acting chaplain in the Navy is hereby authorized and created, and hereafter original appointments shall be made by the Secretary of the Navy, not to exceed the number hereinafter provided, in the grade of acting chaplains in the Navy after such examination as may be prescribed by the Secretary of the Navy, and while so serving acting chaplains shall have the rank, pay, and allowances of lieutenant, junior grade, in the Navy. After three years' sea service on board ship each acting chaplain before receiving a commission in the Navy shall establish to the satisfaction the Secretary of the Navy by examination by a board of chaplains and medical officers of the Navy his physical, mental, moral, and professional fitness to perform the duties of chaplain in the Navy, and if found so qualified, shall be commissioned a chaplain in the Navy with the rank of lieutenant, junior grade. If any acting chaplain shall fail on the examina- tions herein prescribed he shall be honorably discharged from the naval service, and the appointment of any acting chaplain may be revoked at any time in the discretion of the Secretary of the Navy. — (38 Stat., 403, chap. 130.) See notes to sections 1395-1398, 1410, and 1556, Revised Statutes. Retirement. — An acting chaplain who fails physically on examination for commission can not be retired. (FUe 15721-22:1, Mar. 8, 1922.) [1914, June 30. Acting chaplains and chaplains, total number; rank and pay of chaplains.] Hereafter the total number of chaplains and acting chap- lains in the Navy shall be one to each twelve hundred and fifty of the total personnel of the Navy and Marine Corps as fixed by law, including midshipmen, apprentice seamen, and naval prisoners, and of the total number of chaplains and acting chaplains herein authorized ten per centum thereof shall have the rank of captain in the Navy, twenty per centum the rank of commander, twenty per centum the rank of lieutenant commander, and the remainder to have the rank of lieutenants and lieutenants, junior grade. 1396 Pt. 3. STATUTES AT LARGE. June 30, 1914. Naval chaplains hereafter commissioned from acting chaplains shall have the rank, pay, and allowances of lieutenants, jmiior grade, in the Navy until they shall have completed four years' service in that grade, when, subject to examination as above prescribed, they shall have the rank, pay, and allowances of lieutenant in the Navy, a nd chaplains with the rank of lieutenant shall have at least four years' service in that grade before promotion to the grade of lieutenant commander, after which service, chaplains shall be promoted as vacancies occur to the grades of lieutenant commander, commander, and captain: Provided, That not more than seven acting chaplains shall be com- missioned chaplains in any one year: And provided further, That no provision of this section shall operate to reduce the rank, pay, or allowances that would have been received by any person in the Navy except for the passage of this section, and that all laws or parts of laws inconsistent with the provisions of this section be, and the same are hereby, repealed. — (38 Stat., 404, chap. 130.) See notes to sections 1395-1398 and 1556, Re- \'ised Statutes. See note to section 1457, Revised Statutes, under "Distinction between 'rank' and 'grade.'" See note to section 1479, Revised Statutes, under "Advancement in rank and pro- motion of chaplains." [1914, June 30. Naval supply account, law amended.] Those portions of the acts of June twenty-fifth, nineteen hundred and ten, and March fourth, nineteen hundred and eleven, which create the ''Naval supply account" under the Bureau of Supplies and Accounts, are hereby so modified and amended that hereafter the appraised value of all stores, equipage, and supplies turned in from ships, and ships' equipage turned in from yards or stations (except salvage), shall be credited to the current appropriations concerned, and the amounts so credited shall be available for expenditures for the same pm^poses as the appropriations credited ; and all acts or parts of acts in so far as they conflict with this provision are hereby repealed. — (38 Stat., 405, chap. 130.) See act of March 4, 1911 (36 Stat., 1279), and note thereto. [1914, June 30. Issue of flags used for draping coffins.] That the Secretary of the Navy be authorized at his discretion to issue free of cost the national flag (United States national ensign No. 7) used for draping the coffin of any officer or enlisted man of the Navy or IVTarine Corps whose death occurs while in the service of the United States Navy or Marine Corps, upon request, to the relatives of the deceased officer or enlisted man or upon request, to a school, patriotic order, or society to which the deceased officer or man belonged. — (38 Stat., 406, chap. 130.) See note to section 418, Revised Statutes, [1914, June 30. Bureau of Equipment abolished.] The Bureau of Equip- ment of the Navy Department is hereby abolished, and the duties assigned by law to that bureau shall be distributed among the other bureaus and offices of the Navy Department as herein provided, and all available funds heretofore appropriated for that bureau and such civil employees of that bureau as were heretofore authorized by law are hereby assigned and transferred to the other bureaus and offices as herein provided: Provided, That nothing herein shall be so construed as to authorize the expenditm-e of any appropriation for purposes 1397 Aug. 1, 1914. Ft. S. STATUTES AT LARGE. other than those specifically provided by the terms of the appropriations hereto- fore and herein made. — (38 Stat., 408, chap. 130.) Temporary provisions for distribution of the duties, funds, and employees of the Bureau of Equipment amon^ the other bureaus and offices of the Navy Department were contained in the naval appropriation acts for the fiscal years 1911-1914. See section 419, Revised Statutes, and note thereto. [1914, June 30. Overhead charges, how distributed.] Hereafter there shall be charged against the several appropriations for the support of the Naval Establishment the overhead charges incident to upkeep and to industrial work at navy yards and stations. The total sum so charged shall be distributed in accordance with the work done in the various yards and stations in order that the cost of work may be determined. — (38 Stat., 413-414.) See act of March 4, 19] 1 (36 Stat., 1267), as to direct and indirect charges being included in cost of work, and reported annually to Congress. [1914, July 16, sec. 5. Passenger vehicles, restrictions on purchase and maintenance.] No appropriation made in this or any other Act shall be avail- able for the pm'chase of any motor-propelled or horse-drawn passenger-carrying vehicle for the service of any of the executive departments or other Govern- ment establishments, or any branch of the Government service, unless specific authority is given therefor, and after the close of the fiscal year nineteen liun- dred and fifteen there shall not be expended out of any appropriation made by Congress any sum for purchase, maintenance, repair, or operation of motor- propelled or horse-drawn passenger-carrying vehicles for any branch of the public service of the United States unless the same is specifically authorized by law, and in the estimates for the fiscal year nineteen hundred and sixteen and subsequent fiscal years there shall be submitted in detail estimates for such necessary appropriations as are intended to be used for purchase, main- tenance, repair, or operation of all motor-propelled or horse-drawn passenger- carrying vehicles, specifying the sums required, the public purposes for which said vehicles are intended, and the ofl3.cials or employees by whom the same are to be used. (38 Stat., 508-509, chap. 141.) See acts of March 18, 1904, section 3 (33 Stat., 142), and February 3, 1905, section 4 (33 Stat., 687-688). [1914, Aug. 1, sec. 12. Lump-sum employees, restrictions on compensation.] That it shall not be lawful hereafter to pay to any person, employed in the service of the United States under any general or lump smn appropriation, any sum additional to the regular compensation received for or attached to any employment held prior to an appointment or designation as acting for or in- stead of an occupant of any other office or employment. This provision shall not be construed as prohibiting regular and permanent appointments by promotion from lower to higher grades of employments. — (38 Stat., 680, chap. 223.) See act of August 26, 1912, section 7 (37 Stat., 626), and references thereunder. [1914, Aug. 1, sec. 13. Per diem in lieu of subsistence; estimates of appro- priations.] That the heads of executive departments and other Government establishments are authorized to prescribe per diem rates of allowance not exceeding $4 in lieu of subsistence to persons engaged in field work or traveling 1398 Pt. 3. STATUTES AT LARGE. Oct. 13, 1914. See act of April 6, 1914 (38 Stat., 318), as to subsistence allowance. on official business outside of the District of Columbia and away from their designated posts of duty when not otherwise fixed by law. For the fiscal year nineteen hundred and sixteen and annually thereafter estimates of appro- priations from which per diem allowances are to be paid shall specifically state the rates of such allowances. — (38 Stat., 680-681, chap. 223.) See note to section 430, Revised Statutes, as to estimates of appropriations. [Aug. 25, 1914. Naval Petroleum Reserves, use of proceeds; fund created.] Any money which may accrue to the United States under the provisions of this Act from lands within the Naval Petroleum Reserves shall be set aside for the needs of the Navy and deposited in the Treasury to the credit of a fund to be known as the Navy Petroleum Fund, which fund shall be applied to the needs of the Navy as Congress may from time to time direct, by appropriation or otherwise.— (38 Stat., 709, chap. 287.) This clause was part of an act pro\dding for agreements to be entered into by the Sec- retary of the Interior, with parties in possession of oil and gas lands, as to the disposition of oil or gas produced therefrom, or the proceeds thereof, pending final deter- mination of title to the land. See act of February 25, 1920 (41 Stat., 437, et seq.); see also section 3689. Revised Stat- utes, and note thereto. [1914, Oct. 13. Naval officers, appointments to office in Brazil; leaves of absence.] Whereas the Republic of Brazil has recently established the Naval War Col- lege of Brazil at Rio de Janeiro, Brazil, and is desirous that two com- missioned officers of the line of the Navy of the United States experienced in naval war college work be permitted to serve therein as instructors in naval strategy and tactics ; and Whereas the United States of America wishes to show its friendly feeling for the Republic of Brazil by complying with its desire : Now, therefore, be it Resolved hy the Senate and House of Representatives of the United States of America in Congress assembled, That the President be, and he is hereby, author- ized, in his discretion, to grant leave of absence to not more than two com- missioned officers of the line of the Navy of the United States to assist the Republic of Brazil as instructors in naval strategy and tactics in the Naval War College of Brazil, in pursuance of an arrangement to be made between such officers so detailed and the Government of Brazil; and that such officers while absent on such leave be, and they are hereby, authorized to accept from the Government of Brazil the said employment with compensation from the said Government: Provided, however, That the permission so given shall be held to terminate at such date as the President may determine. To insure the con- tinuance of this work during such time as may be desirable, the President may have the power of substitution in case of the termination of the detail of an officer for any cause; and that the officers, while so absent in the service of the Republic of Brazil, shall receive no pay or allowances from the United States Government.— (38 Stat., 750, Res. No. 48.) See act of June 12, 1916 (39 Stat., 223), as to Haiti; act of February 11, 1918 (40 Stat., 437 \ as to Dominican Republic; and act of June 5, 1920 (41 Stat., 1056), as to all South American Republics; see also note to Constitution, Article I, section 9, clause 8. 1399 Mar. 3, 1916. Pt. 3. STATUTES AT LARGE. [1914, Oct. 20, sec. 2. Alaskan coal lands; use of for Navy, etc.] That the President of the United States shall designate and reserve from use, location, sale, lease, or disposition not exceeding five thousand one hundred and twenty acres of coal-bearing land in the Bering River field and not exceeding seven thousand six hundred and eighty acres of coal-bearing land in the Matanuska field, and not to exceed one-half of the other coal lands in Alaska: Provided, Tluit the coal deposits in such reserved areas may be mined under the direction of the President when, in his opinion, the mining of such coal in such reserved areas, under the direction of the President, becomes necessary, by reason of an insuflicient supply of coal at a reasonable price for the requirements of Govern- ment works, construction and operation of Government railroads, for the Navy, for national protection, or for relief from monopoly or oppressive condi- tions.— (38 Stat., 742, chap. 330.) See acts of May 2S, 1908, section 2 (35 Stat., 424), March 12, 1914 (38 Stat., 305-306), and June 4, 1920 (41 Stat., 826); see also section 3711, Revised Statutes. [1916, Jan. 28. Coast Guard established; service with Navy; expenses; etc.] That there shall be established in lieu of the existing Revenue-Cutter Service and the Life-Saving Service, to be composed of those two existing organizations, with the existing ofhces and positions and the incumbent officers and men of those two services, the Coast Guard, which shall constitute a part of the military forces of the United States and which shall operate under the Treasury Department in time of peace and operate as a part of the Navy, subject to the orders of the Secretary of the Navy, in time of war or when the President shall so direct. When subject to the Secretary of the Navy in time of war the expense of the Coast Guard shall be paid by the Navy Department: Provided, That no provision of this Act shall be construed as giving any officer of either the Coast Guard or the Navy, military or other control at any time over any vessel, officer, or man of the other service except by direction of the President.— (38 Stat., 800-801, chap. 20.) This section was modified by act of August 29, 1916 (39 Stat., 600); see also act of October 6, 1917 (40 Stat., 393-394), and notes to sections 1492 and 2757, Re\ised Statutes. [1915, Mar. 3. National Home for Disabled Volunteer Soldiers; admission to.] The following persons only shall hereafter be entitled to the benefits of the National Home for Disabled Volunteer Soldiers, and may be admitted thereto upon the order of a member of the board of managers, namely: All honorably discharged officers, soldiers, and sailors who served in the regular, volunteer, or other forces of the United States in any war in which the country has been or is engaged, including the Spanish American War, the Provisional Army (authorized by Act of Congress approved IVIarch second, eighteen hun- dred and ninety-nine) , in any of the campaigns against hostile Indians, or who have served in the Philippines, in China, or in Alaska, or in the Organized Militia or National Guard when called into the Federal service to enforce the laws, suppress insurrection, or repel invasion, who are disabled by disease, wounds, or otherwise and have no adequate means of support, and who are not otherwise provided for by law, and by reason of such disability are incapable of earning their living. — (38 Stat., 853, chap. 75; 40 Stat., 368, chap. 79.) 1400 Pt. 3. STATUTES AT LARGE. Mar. 3, 1915. This provision was expressly amended and re- See sections 4810 et seq., Re\'ised Statutes, and enacted to read as above by act of October notes thereto, as to Naval Home. 6, 1917 (40 Stat., 368). [1915, Mar. 3. Newspapers and periodicals, payment in advance.] News- papers and periodicals for the naval ser\4ce (hereafter subscriptions may be paid for in advance). — (38 Stat., 929, chap. 83.) See act of March 4, 1915, section 5 (38 Stat., 1049), as to subscriptions to "periodicals." See also section 192, Revised Statutes, and note thereto. [1915, Mar. 3. Chief of Naval Operations, tenure and duties.] Tliere shall be a Chief of Naval Operations, who shall be an officer on the active list of the Navy appointed by the President, by and with the advice and consent of the Senate, from among the officers of the line of the Navy not below the grade of captain for a period of four years, who shall, under the direction of the Secretary of the Navy, be charged with the operations of the fleet, and with the preparation and readiness of plans for its use in war. During the temporary absence of the Secretary and the Assistant Secretary of the Navy, the Chief of Naval Operations shall be next in succession to act as Secretary of the Navy.— (38 Stat., 929, chap. 83.) Amendments to this provision were made by acts of August 29 1916 (39 Stat., 558), and July 1, 1918 (40 Stat., 716). [1915, Mar. 3. Useless papers at navy yards and stations, disposal of.] That the act "To authorize and provide for the disposal of useless papers in the executive departments," approved February sixteenth, eighteen hundred and eighty-nine, is hereby amended so that accumulations in the files of navy yards and naval stations that, in the judgment of the Secretary of the Navy, are not needed or useful in the transaction of current business and have no permanent value or historical interest may be disposed of by the Secretary of the Navy by sale, after advertisement for proposals as waste paper if practi- cable, or if not practicable then otherwise as may appear best for the interests of the Government, the said Secretary to make detailed report to the Congress in every case of the papers destroyed; Provided always That no papers less than two years old from the date of the last indorsement thereon shall be destroyed or disposed of by the Secretary of the Navy, except in the manner provided in said act of February sixteenth, eighteen hundred and eighty-nine. — (38 Stat., 929-930, chap. 83.) ' See act of August 22, 1912 (37 Stat., 329-330), and laws noted thereunder. [1915, Mar. 3. Duties of engineering and construction officers.] Hereafter officers who now perform engineering duty on shore only and officers of the Construction Corps shall be eligible for any shore duty compatible with their ranlv and grade to which the Secretary of the Navy may assign them, — (38 Stat., 930, chap. 83.) A similar provision, without the word "here- after," was contained in act of June 30, 1914 (38 Stat., 394). See notes to sections 1390 and 1404, Revised Statutes; see also section 1488, Revised Statutes, and note thereto; and see sec- tions 1-6, Na\y personnel act, March 3, 1899 (30 Stat., 1004-1005). The appointment and assignment of line officers for engineering duty only were authorized by acts of February 16, 1914, section 21 (38 Stat., 283), and August 29, 1916 (39 Stat., 580). 1401 Mar. 3, 1915. PL 3. STATUTES AT LARGE. [1915, Mar. 3. Advisory Committee for Aeronautics.] An Advisory Com- mit too for Aoronautics is hereby established, and the President is authorized to appoint not to exceed twelve members, to consist of two members from the War Department, from the office in charge of military aeronautics; two members from the Navy Department, from the office in charge of naval aeronautics; a roprosontative each of the Smithsonian Institution, of the United States Weather Bureau, and of the United States Bureau of Standards; together with not more than five additional persons who shall be acquainted with the needs of aeronau- tical science, either civil or military, or skilled in aeronautical engineering or its allied sciences: Provided, That the members of the Advisory Committee for Aeronautics, as such, shall serve without compensation: Provided further, That it shall be the duty of the Advisory Committee for Aeronautics to supervise and direct the scientific study of the problems of flight, with a view to their practical solution, and to determine the problems w^hich should be experi- mentally attacked, and to discuss their solution and their application to practical questions. In the event of a laboratory or laboratories, either in whole or in part, being placed imder the direction of the committee, the committee may direct and conduct research and experiment in aeronautics in such laboratory or laboratories : And provided further, That rules and regulations for the conduct of the work of the committee shall be formulated by the committee and approved by the President. That the sum of $5,000 a year, or so much thereof as may be necessary, for five years is hereby appropriated, out of any money in the Treasury not other^\^se appropriated, to be immediately available, for experimental work and investigations undertaken by the committee, clerical expenses and supplies, and necessary expenses of members of the committee in going to, returning from, and while attending, meetings of the committee: Provided, That an annual report to the Congress shall be submitted through the President, includ- ing an itemized statement of expenditures. — (38 Stat., 930, chap. 83.) In the act of March 4, 1917 (39 Stat., 1170), appropriations for this committee were made under the name of the "National Ad\d80iy Committee for Aeronautics," and the said act consolidated the appropriations previously made for the "Advisory Com- [1915, Mar. 3. Medals of honor.] The President of the United States is hereby empowered to prepare a suitable medal of honor to be awarded to any officer of the Navy, Marine Corps, or Coast Guard who shall have distinguished himself in battle or displayed extraordinary heroism in the line of his profes- sion.— (38 Stat., 931, chap. 83.) See act of February 4, 1919 (40 Stat., 1056); and see section 1407, Revised Statutes, and note thereto. [1915, Mar. 3. Enlistment of minors; discharge upon request of parents.] That hereafter no part of any appropriation for the naval service shall be expended in recruiting seamen, ordinary seamen, or apprentice seamen imless, in case of minors, a certificate of birth or a verified written statement by the parents, or either of them, or in case of their death a verified written statement by the legal guardian, be first furnished to the recruiting officer, showing applicant to be of age required by naval regulations, which shall be presented 1402 mittee for Aeronautics." Appropriations have continued to be made under the new designation in subsequent acts, to and in- cluding the act of March 4, 1921 (41 Stat., 1381). PL 3. STATUTES AT LARGE. Mar. 3, 1915. with the application for enHstment; except in cases where such certificate is unobtainable, enhstment may be made when the recruiting officer is convinced that oath of applicant as to age is credible; but when it is afterwards found, upon evidence satisfactory to the Navy Department, that recruit has sworn falsely as to age, and is imder eighteen years of age at the time of enlistment, he shall, upon rec{uest of either parent, or, in case of their death, by the legal guardian, be released from service in the Navy, upon payment of full cost of first outfit, unless, in any given case, the Secretary, in his discretion, shall relieve said recruit of such payment. — (38 Stat., 931, chap. 83.) See sections 1418, 1419, and 1624, article 22, Re\Tsed Statutes, and notes thereto. See acts of June 29. 1906 (34 Stat., 553), and March 3, 1915 (38 Stat., 932), as to clothing outfits. [1915, Mar. 3. Clothing outfits, reissued on second enlistment.] That here- after the Secretary of the Navy is .authorized to issue a clothing outfit to all enlisted men serving in their second enlistment who failed to receive an outfit of the value authorized by law on their first enlistment, or who, having received such outfit, were rec{uired to refund its value on account of discharge prior to expiration of enlistment : Provided further, That the net cost to the Government of clothing outfits furnished any one enlisted man shall not exceed $60. — (38 Stat., 932, chap. 83.) A similar pro\dsion, without the word "here- after," was contained in act of June 30, 1914 (38 Stat., 396). A clothing outfit on first enlistment, not to ex- ceed in value |45, was authorized by act of March 1, 1889 (25 Stat., 781). See that act and note thereto. The value of clothing outfits on first enlistment has been increased from time to time by annual appropriation acts. The amount fixed by the act of June 4, 1920 (41 Stat., 815), was "not to exceed $100 each," dur- ing the fiscal year ending June 30, 1921. The latter act further pro\dded that during the said fiscal year the value of such outfits should be charged to the "clothing and small stores fund." See also note to sec- tion 1569, Revised Statutes. As to refund of outfits on discharge, see acts of June 29, 1906 (34 Stat., 553 and 556), and March 2. 1907 (34 Stat., 1176). As to uniform gratuity in the Naval Reserve Force, see note to section 1556, Revised Statutes. [1915, Mar. 3. Involuntary retirement, to create vacancies, repealed.] Section nine of the naval personnel act of ]VIarch third, eighteen hundred and ninety-nine, entitled, "An act to reorganize and increase the efficiency of the personnel of the Navy and Marine Corps of the United States," be, and the same is hereby, repealed. — (38 Stat., 938, chap. 83.) See act of March 3, 1899, section 9 (30 Stat., 1006); see also act of August 22, 1912 (37 Stat., 328). [1915, Mar. 3. Aviators, pay of.] Hereafter officers of the Navy and Marine Corps appointed student naval aviators, while lawfully detailed for duty involving actual flying in air craft, including balloons, dirigibles, and aeroplanes, shall receive the pay and allowances of their rank and service plus thirty-five per centum increase thereof; and those officers who have heretofore cjualified, or may hereafter qualify, as naval aviators, under such rules and regulations as have been or may be prescribed by the Secretary of the Navy, shall, while lawfully detailed for duty involving actual flying in air craft, receive the pay and allowances of their rank and service plus fifty per centum increase thereof. Hereafter enlisted men of the Navy or Marine Corps, while detailed for duty involving actual flying in air craft, shall receive the pay, and the permanent additions thereto, including allowances, of their rating and service, or rank and 54641°— 22- -89 1403 Mar. 3, 1915. Pi. A. STA TUTES A T LARGE. service, as the case may bo. plus fifty per centum increase thereof: Provided., That not more tlian a yearly average of forty-eight officers and ninety-six enlisted men of the Navy, and twelve officers and twenty-four enlisted men of the Marine Corps, detailed for duty involving actual flying in air craft, shall receive any increase in pay while on duty involving actual flying in air craft, nor shall any oflicor in the Navy senior in rank to commander, nor any officer in the Marino Corps senior in rank to major, receive any increase in pay or allow- ances hj reason of such detail or duty. — (38 Stat., 939, chap. 83.) By act of July 1, 1918 (40 Stat., 718), increased allowances for axdation duty -were pro- hibited. This pro\'ision was modified bv act of August 29, 1916 (39 Stat., 582-586). See note to section 1556, Revised Statutes. It was followed by a paragraph authorizing pay- ment of one year's pay and double pension to the beneficiaries of deceased personnel of the Na\'y or Marine Corps whose death resulted from wounds or disease resulting from an aviation accident; which benefits were repealed by the "War Risk insurance amendment of October 6, 1917, section 312 (40 Stat., 408). prior proNdsion relating to pay of a^"iato^s, . contained in act of March 4, 1913 (37 Stat., 892), was superseded by the above. [1915, Mar. 3. Prior acts repealed.] All Acts or parts of Acts in so far as they are inconsistent with the provisions of this Act are hereby repealed.— (38 Stat.. 940, chap. 83.) [1915, Mar. 3. Naval reserve established.] This provision read as follows: "There is hereby established a United States naval reser\'e, which shall consist of citizens of the United States who have been or may be entitled to be honorably discharged from the Na^-y after not less than one four-year term of enlistment or after a term of enlistment during minority. The naval reserve shall be organ- ized under the Bureau of NaA'igation and shall be governed by the Articles for the Gov- ernment of the Na^'y and by the Naval Regu- lations and Instructions. \\Tienever actively employed with the Na\'y, or whenever em- ployed in authorized travel to and fi'om prescribed active duty with the Navy, its members shall be employed as members of the naval reserve and shall while so em- ployed be held and considered to be in all respects in the same status as enlisted men of the Na\y on active duty, except that they shall not be advanced in rating in time of peace. ^^■hen not actively employed with the Navy, members of the naval reserve shall not be entitled to any pay, bounty, gratuity, or pension except the pay expressly pro\'ided for members of the naval reserve by the pro- visions of this Act, nor shall they be entitled to retirement by reason of such service in the naval reserve. "Enlistments in the naval reser\-e shall be made in the rating in which last honorably discharged from the Navy for a period of four >-ears unless sooner discharged by competent authority. No man shall be first enlisted in the naval reserve after eight years from the date of his last discharge from the Na\y nor unless he be found to be physically fit to per- form the duties of the rating in which last discharged , nor shall any man whose last sers-ice in the Na\'y was terminated by any means other than by an honorable discharge be eligible for enlistment in the naval reserve. Reenlist- ments in the naval resen-e shall be made under such regulations as may be prescribed by the Secretary of the Nav^^ "Enlistments in the naval reserve shall be made in two classes. Class one shall consist of those men who enlist in the naval reserve within four months from the date of their last honorable discharge from the Na\y. Class two shall consist of those men who enlist in the naval resen-e after foui* months and within eight years fi-om the date of their last honorable discharge from the Na\y. "In addition to the enlistments in the naval reserve above pro\'ided, the Secretary of the NaA'y is authorized to transfer to the naval reserve at the expiration of an enlistment any enlisted man of the Navy who may, after two years from the date of approval of this Act, complete service in the Navy of sixteen, or twenty or more years and be entitled at the expiration of his enlistment to an honorable discharge. Such transfers shall only be made upon voluntary application and in the rating in which then ser-\-ing, and the men so trans- ferred shall be continued in the naval reserve until discharged by competent authority. "Members of the naval reserve of class one and men transferred to the na\'al reserve shall be required to keep on hand such part of the uniform clothing outfit as may be prescribed by the Secretaiy of the Navy, and all members of the naval reser\-e shall be issued a distincti^•e .badge or button which may be worn with ci\ilian dress. ' 'Members of class one who have served less than eight years in the Na\'y shall be paid at the rate of S30 per annum, and those who have served eight or more years and less than twelve years in the Navy shall be paid at the rate of $60 per annum and those who have served twelve 1404 Ft. 3. STATUTES AT LARGE. Mar. 3, 1915. or more years in the Navy, $100 per annum. All members of the naval reserve of class two shall be paid at the rate of $12 per annum, and when first called into active service on board a vessel of the Navy shall receive an allowance for an outfit of clothing not exceeding $30 in value, to be expended under regulations prescribed by the Secretary of the Navy. "Members of the naval reserve who have, when transferred to the naval reserve, com- pleted service in the Navy of sixteen, or twenty or more years shall be paid at the rate of one- third and one-half, respectively, of the base pay, plus permanent additions thereto, which they were receiving at the close of their last service in the Navy. "Members of the naval reserve may, in time of peace, be required to perform not less than one month's active service on board a vessel of the Navy, during each year of service in the naval reserve, and such active service shall not exceed two months in any one year: Pro- vided, That the aforesaid active ser\dce with the Navy may be required at any time after entrance in the naval reserve. In time of war they may be required to perform active service with the Navy throughout the war, not to exceed the term of enlistment in the case of those enlisted in the naval reserve. Any pay which may be due any member of the naval reserve shall be forfeited when so ordered by the Secretary of the Navy upon the failure, under such conditions as may be prescribed by the Secretary of the Navy, of such man to report for muster and inspection. "Those members of the naval reserve of class one, and those members who have been trans- ferred to the naval reserve, who reenlist in the Navy within four months from the date of their discharge from the naval reserve, shall not be entitled to a gi'atuity of four months' pay, but their reenlistment in the Navy shall be held and considered to have been made within four months from the date of discharge from the Navy for the purpose of continuous-service pay. The period of time during which mem- bers of the naval reserve were actively em- ployed with the Navy wliile enlisted in the naval reserve shall, for the pui'poses of retire- ment, be counted as active service in the Navy in the case of those who reenlist in the Navy after service in the naval reserve." (38 Stat., 940-941, chap. 83.) This provision was held to be super- seded by the act of August 29, 1916 (39 Stat., 587-593), establishing the Naval Reserve Force and Marine Corps Reserve (23 Comp. Dec, 190, affirmed, 26 Comp. Dec, 556). In the comptroller's decision first above cited, it was held that "the former Naval Re- serve having been superseded on August 29, 1916, by the Naval Reserve Force," the right [1915, Mar. 3. Retired enlisted men, active duty.] The Secretary of the Navy is authorized in time of war, or when, in the opinion of the President, war is threatened, to call any enlisted man on the retired list into active service for such duty as he may he able to perform. While so employed such enlisted men shall receive the same pay and allowances they were receiving when placed on the retired list: Provided, That enlisted men on the retired list shall not be to pay of members of the Naval Reserve "ter- minated August 28, 1916.'; In the second decision cited, the comptroller held that "upon the passage of the act of August 29, 1916, 39 Stat., 587, the United States Naval Reserve ceased to exist and a new branch, the Naval Reserve Force, was created in place thereof." The act of August 29, 1916 (39 Stat., 593), provided that "All Acts or parts of Acts relating to the Naval Reserve which are inconsistent v'ith the provisions of this Act relating to the Naval Reserve Force are hereby repealed." After the comptroller's decision first above cited, Congi-ess, by act of March 4, 1917 (39 Stat., 1174), enacted the following provision: i "Any former member of class one of the United States Naval Reserve, established by the Act of March third, nineteen hundred and fifteen, 'An Act making appropriations for the naval service for the fiscal year ending June thirtieth, nineteen hundred and sixteen, and for other purposes,' who shall have reenlisted in the Navy prior to May first, nineteen hun- dred and seventeen, shall be held and consid- ' ered to have reenlisted within four months I from the date of discharge fi'om the Navy for the purpose of continuous-service pay. And any such member of the said Naval Reserve who was serving therein on August twenty- I ninth, nineteen hundred and sixteen, shall j upon his application therefor, any time prior to July firstj nineteen hundred and seventeen, be enrolled m the Naval Reserve Force, and any such person so enrolled shall, for all purposes, be considered as having served continuously in such Naval Reserve Force since August twenty-ninth, nineteen hundred and sixteen, with due credit for previous and continuous service in the Naval Reserve in the same manner and to the same effect as for equal length of service in the Naval Reserve Force: Provided, That no such enrolled person shall receive any back pay or allowances for any period during which he shall have received pay or allowances, or either, for service in any other branch of the naval service, regular or reserve." See note to section 1573, Revised Statutes, as to continuous-service pay in the Navy; see note to section 1556, Revised Statutes, as to pay and allowances of the Naval Reserve Force; and see, generally, note to section 1569, Revised Statutes, as to pay of enlisted men of the Navy, and note to section 1612, Revised Statutes, as to pay of enlisted men of the Marine Corps. See act of August 29, 1916 (39 Stat., 587-593), and amendments noted thereunder, as to the Naval Reserve Force and Marine Corps Re- serve. 1405 Mar. 3, 1915. Pt. S. STATUTES AT LARGE. eligible for enlistment in or tnmsfer to the naval reserve. — (38 Stat., 941, chap. S3.) A later provision for the emplo>nment of retired enlisted inon on active cluty, -which appar- ently supcM-setles this enactment, is con- tained in the act of August 29, 1916 (39 Stat., 501). Authority for the advancement of retired en- listed men employed on active duty is contained in the act of July 1, 1918 (40 Stat., 719). As to status of retired enlisted men, and whether subject to trial by court-martial, see note to section 1624, Revised Statutes. See notes above, as to the naval reserve; and see act of March 3, 1899, section 17 (30 Stat., 1008), and laws noted thereunder, as to retirement of enlisted men. See note to section 1569, Revised Statutes, under "17. Retired enlisted men;" and see note to section 1622, Rexdsed Statutes, as to retired enlisted men of the Marine Corps. [1916, Mar. 3. Grades of acting pay clerk, pay clerk, and chief pay clerk, established.] The title of paymaster's clerk in the United States Navy is hereby changed to pay clerk, and hereafter all pay clerks shall be warranted from acting pay clerks, who shall be appointed from enlisted men in the Navy holding acting or permanent appointments as chief petty ofTicers who have served at least three years as enlisted men, at least two years of which service must have been on board a cruising vessel of the Navy. All appointments as acting pay clerks shall be made by the Secretary of the Navy, and all such appointees, in addition to the qualifications above set forth, must be citizens of the United States. All acting appointments herein provided for shall be made permanent under regulations established by the Secretary of the Navy: Pro- vided, That paymasters' clerks now in the Navy whose total service as such is less than one year and who are citizens of the United States may, upon the passage of this act, be given appointments as acting pay clerks without previous service as enlisted men: Provided further, That paymasters' clerks now in the service and former paymasters' clerks whose appointments have been revoked within six months next preceding the passage of this act, who have had not less than one year's actual service as such, and who are citizens of the United States, may, upon the passage of this act, be warranted as pay clerks without previous service as enlisted men or as acting pay clerks: And provided further, That pay clerks and acting pay clerks shall have the same pay, allow- ances, and other benefits as are now or may hereafter be allowed other warrant ofTicers and acting warrant officers, respectively. That all pay clerks shall, after six years' service as such, be commissioned chief pay clerks and shall on promotion have the rank, pay, and allowances of chief boatswain: Provided, That in computing the six years' service herein provided for credit shall be given for all service in the Navy as pay clerk, acting pay clerk, and paymasters' clerk: Provided further. That paymiasters' clerks now in the Navy and former paymasters' clerks whose appointments have been revoked within six months next preceding the passage of this act, who have had not less than six years' actual service as such, and who are citizens of the United States, may, upon the passage of this act, be commissioned as chief pay clerks without previous service as enlisted men, acting pay clerks, or pay clerks. That the total number of chief pay clerks, pay clerks, and acting pay clerks allowed by this act shall not exceed one for each two hundred and fifty enlisted men in the United States Navy now or hereafter allowed by law, and 1406 PL 3. STATUTES AT LARGE. Mar. 3, 1915. such chief pay clerks, pay clerks, and acting pay clerks shall be assigned to duty with pay officers under such rules as the Secretary of the Navy may prescribe: Privided, That no person shall be appointed a chief pay clerk, pay clerk, or acting pay clerk under any provisions contained in this act until his physical, mental, moral, and professional qualifications have been satisfactorily established by examination before a board of examining officers appointed by the Secretary of the Navy, from officers of the pa}^ corps when practicable and according to such regulations as he may prescribe: Provided further, That no person shall be appointed a chief pay clerk, pay clerk, or acting pay clerk unless his accumulated previous service in the Army, Navy, and Marine Corps, together with his possible future service prior to attaining the age of sixty-two years, will amount to at least thirty years, except that this proviso shall not apply to such persons as were serving in the Navy as paymasters' clerks during the period from September first, nineteen hundred and thirteen, to October thirty-first, nineteen hundred and thirteen. — (38 Stat., 942-943, chap. 83.) As to pay of warrant officers and commissioned warrant officers, see note to section 1556, ile^dsed Statutes; as to allowances of offi- cers, see note to section 1558, Revised Stat- utes. See, generally, sections 1386-1388, and 1405, fee\'ised Statutes, and notes thereto. [1915, Mar. 3. Assistant paymasters, appointment from chief pay clerks and pay clerks.] That the limitation as to age contained in section thirteen hundred and seventy-nine of the Revised Statutes of the United States, relating to appointment of assistant paymasters in the United States Navy, shall not apply to chief pay clerks and pay clerks appointed under the provisions of this Act, who must be between the ages of twenty-one and thirty-five years at the time of appointment as assistant paymasters in the United States Navy: Pro- vided, That this shall not be construed as giving any preference in said appoint- ment of assistant paymasters to said chief pay clerks and pay clerks except as to the limitation of age. — (38 Stat., 943, chap. 83.) See section 1379, Re\ised Statutes, and note thereto. [1915, Mar. 3. Paymasters' clerks ; laws repealed.] That sections thirteen hundred and eighty-six, thirteen hundred and eighty-seven, and thirteen hundred and eighty-eight of the Revised Statutes, and all Acts and parts of Acts, so far as they are in conflict with the provisions of this Act, be, and the same are hereby, repealed. — (38 Stat., 943. chap. 83.) [1915, Mar. 3. Transportation of fuel; charges excessive.] That hereafter, when the lowest obtainable cost of transportation of fuel between the Atlantic and Pacffic coasts of the United States by merchant carriers is considered ex- cessive, the appropriation "Fuel and transportation"' may be charged with the expense of pay, transportation, shipping, and subsistence of civilian officers and crews, and such other incidental expenses as can not be paid from other appropriations, of naval auxiliaries engaged in the transportation of fuel: Provided, That the appropriation ''Maintenance of naval auxiliaries" is in- sufficient therefor. — (38 Stat., 944, chap. 83.) 1407 Mar. 4. 1915. Pt.3. STATUTES AT LARGE. See sections 3718 and 3728, Revised Statutes, and notoa Ihoroto. Transportation in foreign vessels. — Coal for the use of the Navy may, under ex- isting: law. 1)0 transported hy soa from ports on tho Atlantic to ports on the Tacific coast of the I'nitod States in vessels of foreign registry ■where suflicient American vessels for that pur- {>ose can not be had, or where the charges made )V such vessels are excessive and unreasonable. (26 ()]). Attv. Gen.. 415, Oct. 3, 1917.) The act of April 2S, 1904 (33 Stat., 518), relating to transportation of coal and other sup- plies for the Navy, contemplates the possibility that it may be impossible to comply with its terms ^\-ithout exposing the Government to exorbitant and unreasonable expense; in such case the act does not require that transporta- tion be in American vessels. (26 Op. Atty. Gen.. 415.) Section 4347, Revised Statutes, and the act of February 17, 1898 (30 Stat., 248), which [1915, Mar. 3. Assistant naval constructors, appointment from line offi- cers.] Officers, of the line of the Navy who have had not less than three years' service in the grade of ensign and have taken or are taking satisfactorily a post-graduate course in naval architecture under orders from the Secretar}^ (^f the Navy shall be eligible for transfer to the grade of assistant naval constructor: Provided, That there shall not be more than five such transfers in any one calendar year and that the total increase in the number of naval constructors and assistant naval constructors by reason of such transfers shall not exceed twenty-four.— (38 Stat., 945, chap. 83.) prohibit the transportation of merchandise from one port to another in vessels owned by foreigners, do not apply t© property owned by the Government. (26 Op. Atty. Gen., 415.) Tonnage tax. — A British steamship which transported coal belonging to the Navy, from Newport News to San Francisco, and had no other cargo, was not a vessel having on board goods, wares, and merchandise within the meaning of section 4219, Revised Statutes, and amendments tliereto, imposing a tonnage tax upon foreign vessels. (2i) Op. Atty. Gen., 426.) Coal imported for the Navy; duties. — • Coal imported for the use of the NaA^^ is subject to the duties prescribed bv paragraph 415 of the act of July 24, 1897 (30 Stat., 190), not^nth- standing the coal is imported by the Na-vy De- partment and the duties wdll have to be paid from the aj^propriations of that Department (26 Op. Atty. Gen., 466.) See section 1403, Revised Statutes, and note thereto, as to appointment of assistant naval constructors. See section 1402, Re\dsed Statutes, and note thereto, as to the number of officers in the Construction Corps. [1915, Mar. 3. Pay, Marine Corps, sea duty.] That the increased compen- sation as now fixed by law for the Marine Corps for foreign shore service shall hereafter be paid to the officers and enlisted men of that corps while on sea duty, in the same manner and under the same conditions as is provided by the act approved M.aj thirteenth, nineteen hundred and eight, for officers of the Navy. — (38 Stat., 948, chap. 83.) See act of May 13, 1908 (35 Stat., 128), and see notes to sections 1556, 1571, and 1612, Re- vised Statutes. [1916, Mar. 3. Equipment outfits, naval vessels; appropriation chargeable.] Increase of the Navy, Equipment: The unexpended balance on June thir- tieth, nineteen hundred and fifteen, shall be transferred to appropriation "Increase of the Navy, construction and machinery," and beginning with July first, nineteen hundred and fifteen, equipment outfits shall be charged to ap- propriation "Increase of the Navy, construction and machinery." — (38 Stat., 952, chap. 83.) [1915, Mar. 4, sec. 5. Subscriptions to periodicals, payment in advance.] That hereafter subscriptions to periodicals, which have been certified in writing by the respective heads of the executive departments or other Government 1408 Pt. 3. STATUTES AT LARGE. Mar. 4, 1915. establisliments to be roqiiired for official use, may be paid in advance from appropriations available therefor. — (38 Stat., 1049, chap. 141.) See act of March 3, 1915 (38 Stat., 929); see also section 192, Re\i8ed Statutes, and note thereto. [1915, Mar. 4, sec. 6. Civil employees, etc., number of.] The officers and employees of the United States whose salaries are herein appropriated for are established and shall continue from year to year to the extent they shall be appropriated for by Congress.— (38 Stat., 1049, chap. 141.) See note to section 416, Re\'ised Stattites. This section was part of the legislative, execu- tive, and judicial appropriation act for the fiscal vear 1916. [1915, Mar. 4. Transfer of appropriations between bureaus and departments; supplies and services.] That hereafter when one bureau of the War or Navy Departments procures by purchase or manufacture stores or material of any kind or performs any service for another bureau of such departments the funds of the bureau or department for which the stores or material are to be procured or the service performed may be placed subject to the requisition of the bureau or department making the procurement or performing the service for direct expenditure by it: Provided, That when the stores being procured are for current issue during the year stores of equal value may be issued from stock on hand in place of any of those aforesaid. — (38 Stat., 1084, chap. 143.) See act of May 21, 1920, section 7 (41 Stat., 613), which contains pro^'isions similar to the foregoing, applicable to all depart- ments and bureaus of the Government ; see also acts of August 24, 1912 (37 Stat., 589), and July 11, 1919 (41 Stat., 132); and see sections 418, 419, 1135, 1437, and 3676, Re\-ised Statutes, and notes thereto. [1915, Mar. 4. National forests; use of earth, stone, and timber by Navy.] That hereafter the Secretary of Agricultiu"e, under regulations to be prescribed by him, is hereby authorized to permit the Navy Department to take from the national forests such earth, stone, and timber for the use of the Navy as may be compatible with the administration of the national forests for the purposes for which they are established, and also in the same manner to permit the taking of earth, stone, and timber from the national forests for the con- struction of Government railways and other Government works in Alaska: Provided, That the Secretary of Agriculture shall submit with his annual estimates a report of the quantity and market value of earth, stone, and timber furnished as herein provided.— (38 Stat., 1100-1101, chap. 144.) [1915, Mar. 4, sec. 4. Appropriations, unexpended balances; reappropria- tion.] That the reappropriation and diversion of the unexpended balance of any appropriation to a purpose other than that for which it was originally made shall be construed and accounted hereafter as a new appropriation and the imexpended balance shall be reduced by the sum proposed to be so diverted.— (38 Stat., 1161, chap. 147.) See section 3690, Re\T.sed Statutes. [1915, Mar. 4, sec. 5. Exchange of typewriters, adding machines, etc.; report to Congress.] That the executive departments and other Government establishments and all branches of the public service may hereafter exchange typewriters, adding machines, and other similar labor saving devices in part payment for new machines used for the same purpose as those proposed to be 1409 Apr. 27, 1916. Pt. 3. STATUTES AT LARGE. exchanged. There shall be submitted to Congress, on the first day of the session following the close of each fiscal year, a report showing, as to each ex- change hereunder, the make of the article, the period of its use, the allowance therefor, and the article, make thereof, and price, including exchange value, paid or to be paid for each article procured through such exchange. — (38 Stat., 1161, chap. 147.) See sections 418, 429, and 3718, ReA-ised Stat- utes, and notes thereto; and see acts of June 5, 1020, section 7 (41 Stat., 947), and March ■^, 1921 (41 Stat., 1265-126G). [1916, Apr. 27. Medal of honor roll ; special pension.] That there is hereby established in the War Department and Navy Department, respectively, a roll designated as "the Army and Navy medal of honor roll." Upon written application made to the Secretary of the proper department, and subject to the conditions and requirements hereinafter contained, the name of each sur- viving person who has served in the military or naval service of the United States in any war, who has attained or shall attain the age of sixty-five years, and who has been awarded a medal of honor for having in action involving actual conflict with an enemy distinguished himself conspicuously by gallantry or intrepidity, at the risk of his life, above and beyond the call of duty, and who was honorably discharged from service by muster out, resignation, or otherwise, shall be, by the Secretary of the proper department, entered and recorded on said roll. Applications for entry on said roll shall be made in such form and under such regulations as shall be prescribed by the War Department and Navy Department, respectively, and proper blanks and instructions shall be, by the proper Secretary, furnished without charge upon request made by any person claiming the benefits of this Act. — (39 Stat., 53, chap. 88.) Sec. 2. That it shall be the duty of the Secretary of War and of the Sec- retary of the Navy to carry this Act into effect and to decide whether each applicant, under this Act, in his department is entitled to the benefit of this Act. If the official award of the medal of honor to the applicant, or the official notice to him thereof, shall appear to show that the medal of honor was awarded to the applicant for such an act as is required by the provisions of this Act, it shall be deemed sufficient to entitle the applicant to such special pension with- out fm-ther investigation. Otherwise all official correspondence, orders, reports, recommendations, requests, and other evidence now on file in any public office or department shall be considered. A certificate of service and of the act of heroism, gallantry, bravery, or intrepidity for which the medal of honor was awarded, and of enrollment under this Act, and of the right of the special pensioner to be entitled to and to receive the special pension herein granted, shall be furnished each person whose name shall be so entered on said roll. The Secretary of War and the Secretary of the Navy shall deliver to the Commissioner of Pensions a certified copy of each of such of said certificates as he may issue, as aforesaid, and the same shall be full and sufficient authority to the Commis- sioner of Pensions for the payment by him to the beneficiary named in each such certificate the special pension herein provided for. — (39 Stat., 54, chap. 88.) Sec. 3. That each such surviving person whose name shall have been entered on said roll in accordance with this Act shall be entitled to and shall receive and be paid by the Commissioner of Pensions in the Department of the 1410 Ft. 3. STATUTES AT LARGE. June 3, 1916 Interior, out of any moneys in the Treasury of the United States not otherwise appropriated, a special pension of $10 per month for life, payable quarter yearly. The Commissioner of Pensions shall make all necessary rules and regulations for making payment of such special pensions to the beneficiaries thereof. Such special pension shall begin on the day that such person shall file his application for enrollment on said roll in the office of the Secretary of War or of the Secretary of the Navy after the passage and approval of this Act, and shall continue during the life of the beneficiary. Such special pension shall not deprive any such special pensioner of any other pension or of any benefit, right, or privilege to which he is or may here- after be -entitled under any existing or subsequent law, but shall be in addition thereto. The special pension allowed under this Act shall not be subject to any attachment, execution, levy, tax, lien, or detention imder any process what- ever. — (39 Stat., 54, chap. 88.) Sec. 4. That in case any person has been awarded two or more medals of honor, he shall not be entitled to and shall not receive more than one such special pension. Rank in the service shall not be considered in applications filed hereunder. — (39 Stat., 54, chap. 88.) As to medals of honor, see note to section 1407, Revised Statutes. [1916, Apr. 27. Attorneys before departments; advertising.] That it shall be unla\\^ul for any person, firm, or corporation practicing before any depart- ment or office of the Government to use the name of any Member of either House of Congress or of any officer of the Government in advertising the said business. — (39 Stat., 54, chap. 89.) [1916, May 10, sec. 6. Double salaries restricted.] That unless othermse specially authorized by law, no money appropriated by this or any other Act shall be available for payment to any person receiving more than one salary when the combined amount of said salaries exceeds the sum of $2,000 per annum, but this shall not apply to retired officers or enlisted men of the Army, Navy, Marine Corps, or Coast Guard, or to officers and enlisted men of the Organized Militia and Naval Militia in the several States, Territories, and the District of Columbia: Provided, That no such retired officer, officer, or enlisted man shall be denied or deprived of any of his pay, salary, or compensation as such, or of any other salary or compensation for services heretofore rendered, by reason of any decision or construction of said section six. — (39 Stat., 120, chap. 117; 39 Stat., 582, chap. 417.) See notes to sections 1763 and 1765, Revised Statutes. This section was expressly amended and reen- acted to read as above by act of August 29, 1916 (39 Stat., 582). [1916, June 3, sec. 35. Enlisted men, civil employment.] Hereafter no enlisted man in the active service of the United States in the Army, Navy, and Marine Corps, respectively, whether a noncommissioned officer, musician, or private, shall be detailed, ordered, or permitted to leave his post to engage in any pursuit, business, or performance in civil life, for emolument, hii'e, or 1411 June 3, 1916. PL S. STATUTES AT LARGE. Employment of enlisted men at navy yards, etc., during repairs to vessels: See act of August 22, 1912 (37 Stat., 355). othcnviso, a\ lion the same shall interfere with the customary employment and regular engagement of local civilians in the respective arts, trades, or profes- sions.— (39 Stat., 188-189, chap. 134.) Navy bands, competition with civilians: See act of May 13, 1908 (35 Stat., 153.) Marine Band, competition with civilians: See act of August 29, 191G (39. Stat., 612). [1916, June 3, sec. 74. National Guard officers, appointed from naval and reserve officers, etc.] Persons hereafter commissioned as officers of the National Guard shall not be recognized as such under any of the provisions of this Act unless they shall have been selected from the following classes, and shall have taken and subscribed to the oath of office prescribed in the preceding section of this Act; officers or enlisted men of the National Guard; officers, active or retired, reserve officers, and former officers of the Ai'my, Navy, or Marine Corps, enlisted men and former enlisted men of the Army, Navy, or Marine Corps who have received an honorable discharge therefrom; graduates of the United States Military and Naval Academies; and graduates of schools, col- leges, universities, and officers' framing camps, where they have received military instruction under the supervision of an officer of the Regular Army who certified their fitness for appomtment as commissioned officers; and for the technical branches or Staff Corps and departments, such other civilians as may be specially qualified for duty therein. — (39 Stat., 201-202, chap. 134, 41 Stat., 781-782, chap. 227.) This section was expressly amended and reenacted to read as above by act of June 4, 1920, section 41 {41 Stat., 781-782). [1916, June 3, sec. 80. Leave of absence employees belonging to National Guard.] All officers and employees of the United States and of the District of Columbia who shall be members of the National Guard shall be entitled to leave of absence from their respective duties, without loss of pay, time, or efficiency rating, on all days durmg which they shall be engaged in field or coast-defense framing ordered or authorized under the provisions of this Act. — (39 Stat., 203, chap. 134.) See act of May 12, 1917 (40 Stat., 72), as to employees belonging to Officers' Reserve Corps. [1916, June 3, sec. 113. Rifle practice.] The Secretary of War shall annually submit to Congress recommendations and estimates for the establish- ment and maintenance of indoor and outdoor rifle ranges, under such a com- prehensive plan as will ultimately result in providing adequate facilities for rifle practice in all sections of the country. And that all ranges so established and all ranges which may have already been constructed, in whole or in part, with funds provided by Congress shall be open for use by those in any branch of the military or naval service of the United States and by all able-bodied males capable of bearing arms, under reasonable regulations to be prescribed by the controlling authorities and approved by the Secretary of War. That the President may detail capable officers and noncommissioned officers of the Regular Army and National Guard to duty at such ranges as instructors for the purpose of training the citizenry in the use of the military arm. Where rifle ranges shall have been so established and instructors assigned to duty thereat. 1412 Pt. 3. STATUTES AT LARGE. June 3, 1916. the Secretary of War shall be authorized to provide for the issue of a reasonable number of standard military rifles and such quantities of ammunition as may be available for use in conducting such rifle practice. — (39 Stat., 211, chap. 134.) By annual appropriation acts for the support of the Army appropriations are made "for the purpose of furnishing a national trophy and medals and other prizes to be provided and contested for annually, under such regulations as may be prescribed by the Secretary of War, said contest to be open to the Army, Navy, Marine Corps, and the National Giuard or Organized Militia of the several States, Territories, and of the Dis- trict of Columbia, members of rifle clubs, and civilians, and for the cost of the trophy, prizes, and medals herein provided for, and for the promotion of rifle practice thi'oughout the United States, including the reimbiu-sement of necessaiy expenses of members of the National Board for the promotion of Rifle Practice, to be expended for the purposes hereinbefore prescribed, under the direction of the Secretary of War." (Act June 5, 1920, 41 Stat., 971.) [1916, June 3, sec. 120. Procurement of supplies in time of war, etc.] The President, in time of war or when war is imminent, is empowered, through the head of any department of the Government, in addition to the present author- ized methods of purchase or procurement, to place an order with any individual, firm, association, company, corporation, or organized manufacturing industry for such product or material as may be required and which is of the nature and kind usually produced or capable of being produced by such individual, firm, company, association, corporation, or organized manufacturing industry. Compliance with all such orders for products or material shall be obligatory on any individual, firm, association, company, corporation, or organized manu- facturing industry or the responsible head or heads thereof and shall take precedence over all other orders and contracts theretofore placed with such individual, firm, company, association, corporation, or organized manufacturing industry, * * * and any individual, firm, company, association, or corpo- ration, or organized manufacturing industry, or the responsible head or heads thereof, failing to comply with the provisions of this section shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment for not more than three years and by a fine not exceeding $50,000. The compensation to be paid to any individual, firm, company, association, corporation, or organized manufacturing industry for its products or material, or as rental for use of any manufacturing plant while used by the United States, shall be fau- and just.— (39 Stat., 213, chap. 134.) The omitted portion of this section related in the procurement by the President of ships terms to the Arm V. and material, etc., for the Navy in time See act of March 4, 1917 (39 Stat., 1192-1193), of war; and see act of September 7, 1916, which contained authority 'in addition section 10 (39 Stat., 731). to all other existing provisions of law," for [1916, June 3, sec. 124. Nitrate supply.] The products of such plants shall be used by the President for military and naval purposes to the extent that he may deem necessary, and any surplus which he shall determine is not required shall be sold and disposed of by him under such regulations as he may prescribe.— (39 Stat., 215, chap. 134.) This was a paragraph contained in section 124 of the act cited, which section authorized the President to construct, maintain, and operate plants and equipment for the pro- duction of nitrates or other products needed for munitions of war, etc. See act of July 2, 1917 (40 Stat., 241), as amended by acts of April 11, 1918 (40 Stat., 618), and July 9, 1918 (40 Stat., 888). 1413 June 3, 1916. Pt. 3. STATUTES AT LARGE. [1916, June 3, sec. 125. Protection of the uniform.] It shall be unlawful for any person not an odieer or cnlistetl man of the United States Army, Navy, or Marine Corps, to wear the duly prescribed uniform of the United States Army, Navy, or Marine Corps, or any distmctivc part of such uniform, or a uniform any part of which is similar to a distinctive part of the duly prescribed uniform of the United States Army, Navy, or Marhie Corps: Provided, That the foregoing provision shall not be construed so as to prevent officers or enlisted men of the National Guard from wearing, m pursuance of law and regulations, the uniform la\\'fiilly prescribed to be worn by such ofTicers or enlisted men of the National Guard; nor to prevent members of the organization known as the Boy Scouts of America, or the Naval Militia, or such other organizations as the Secretary of War may designate, from wearmg their prescribed uniforms; nor to prevent per- sons who in time of war have served honorably as officers of the United States Ai'my, Navy, or Marme Corps, Regular or Volunteer, and whose most recent service was termmated by an honorable discharge, muster out, or resignation, from wearing, upon occasions of ceremony, the uniform of the highest grade they have held by brevet or other commission in such Regular or Volunteer service; nor to prevent any person who has been honorably discharged from the United States Army, Navy, or Marme Corps, Regular or Volunteer, from wear- mg his uniform from the place of his discharge to his home, within three months after the date of such discharge; nor to prevent the members of military societies composed entirely of honorably discharged officers or enlisted men, or both, of the United States Army, Navy, or Marine Corps, Regular or Volunteer, from wearing, upon occasions of ceremony, the uniform duly prescribed by such socie- ties to be worn by the members thereof; nor to prevent the instructors and members of the duly organized cadet corps of a State university. State college, or public high school offering a regular course in military instruction from wearmg the uniform duly prescribed by the authorities of such university, college, or public high school for wear by the mstructors and members of such cadet corps; nor to prevent the instructors and members of the duly organized cadet corps of any other institution of learning offermg a regular course in military instruction, and at which an officer or enlisted man of the United States Army, Navy, or Marine Corps is lawfully detailed for duty as instructor in military science and tactics, from wearing the uniform duly prescribed by the authorities of such institution of learnmg for wear by the instructors and members of such cadet corps; nor to prevent civilians attendant upon a course of military or naval mstruction authorized and conducted by the military or naval authorities of the United States from wearmg, while in attendance upon such course of instruction, the uniform authorized and prescribed by such military or naval authorities for wear during such course of instruction ; nor to prevent any person from wearing the uniform of the United States Army, Navy, or ^Marine Corps in any playhouse or theater or in moving-picture films while actually engaged in representing therein a military or naval character not tending to bring discredit or reproach upon the United States Army, Navy, or Marme Corps: Provided further, That the uniforms worn by officers or enlisted men of the National Guard, or by the members of the military societies or the instructors and members of the cadet corps referred to in the precedmg proviso shall include some distinctive mark or msignia to be prescribed by the 1414 Pt. 3. STATUTES AT LARGE. June 3, 1916. Secretary of War to distinguish such uniforms from the uniforms of the United States Army, Navy, and Marme Corps: And 'provided further, That the members of the miUtary societies and the instructors and members of the cadet corps hereinbefore mentioned shall not wear the insignia of rank prescribed to be worn by officers of the United States Army, Navy, or Marine Corps, or any msignia of rank similar thereto. Any person who offends against the provisions of this section shall, on conviction, be punished by a fine not exceeding $300, or by imprisonment not exceeding six months, or by both such fine and imprisomnent. — (39 Stat., 216-217, chap. 134; 41 Stat., 836, chap. 228.) This section was expressly amended by act of July 9, 1918, section 10 (40 Stat., 891), by adding thereto a provision ^-ith respect to enlisted men of the Army and National Guard. 1 1 was further amended, but without express reference thereto, by act of Febru- ary 28, 1919, sections 1 and 2 (40 Stat., 1202-1203), with respect to all persons who served in the Army, Na^•y, or I^Iarine Corps, "during the present war," honorably discharged since April 6, 1917. (See file 29225-21, Dec. 23, 1920.) By act of June 4, 1920, section 8 (41 Stat., 836) it was provided ''That section 125 of the Act entitled 'An Act for making fm'ther and more effectual provisions for the national defense, and for other purposes,' approved June .3, 19 IG, shall hereafter be in full force and effect as originally enacted, notwithstanding anything contained in the Act entitled 'An Act permitting any person who has served in the United States Army, Navy, or Marine Corps in the present war to retain his uniform and personal equip- ment and to wear the same under certain conditions,' approved February 28, 1918: I [1916, June 3, Sec. 126. Mileage and transportation on discharge.] That an enlisted man honorably discharged from the Army, Navy, or Marine Corps since November eleventh, nineteen hundred and eighteen, or who may hereafter be honorably discharged, shall receive five cents per mile from the place of his discharge to his actual bona fide home or residence, or original muster into the service, at his option: Provided, That for sea travel on discharge, transportation and subsistence only shall be fm-nished to enlisted men: Provided, That naval reservists duly em"olled who have been honorably released from active service since November eleventh, nineteen hundred and eighteen, or who may hereafter be honorably released from active service, shall be entitled likewise to receive mileage as aforesaid.— (39 Stat., 217, chap. 134; 40 Stat., 1203, chap. 70.) Provided, That the words 'or the Secretary of the Navy' shall be inserted immediately after the words 'the Secretary of War' wherever those words appear in section 125 of the Act approved June 3, 1916, herein- before referred to." (The reference in this amendment to the act approved Februarv 28, "1918," was evidently intended to mean the act of February 28, "1919," above cited.) See section 32, Criminal Code, act of March 4, 1909 (35 Stat., 1095), as to impersonating officers of the United States, etc.; act of March 1, 1911 (36 Stat., 963), as to discrim- ination against the uniform of the United States bv places of amusement, etc.; act of July 8, 1918 (40 Stat., 821), as to unau- thorized wearing of miiforms of friendlv nations; act of July 1, 1918 (40 Stat., 712) as to members of Naval Reserve Force au- orized to wear their uniforms when not in active sersdce; and act of August 29, 1916 (39 Stat., .588), as to unauthorized wearing of the distinctive insignia of the Naval Reserve Force. This section was expressly amended and reen- acted to read as above Ijy act of February 28, 1919, section 3 (40 Stat., 1203). See act of March 3, 1901(31 Stat., 1030), and see note to section 1569, Re\ised Statutes, under "20. Mileage and transportation on discharge." By act of June 4, 1920, section 6 (41 Stat., 836) it was pro\'ided : '*' That in case any enlisted man or enrolled man who, since the 11th day of November, 1918, has been or here- after shall be discharged from any branch or class of the naval service for the purpose of reenlisting in the Navy or ]\Iarine Corps or heretofore has extended or hereafter shall extend his enlistment therein, he shall lie entitled * * * to travel pay as author- ized in section 3 of the Act entitled ''An Act permitting any person who has served in the United States Army, Navy, or ^Marine Corps in the present war to retain his uniform and personal equipment and to wear the same under certain conditions" approved February 28, 1919 * * *." 1415 July 1, 1916. Pt. 3. STATUTES AT LARGE. [1916, June 12. Naval officers appointed to office in Haiti; increases in personnel, pay, etc. J Tliat tlic Prosidont of the United vStutes be, and he is luToby, autliori/AHl, in his discretion, to detail to assist the Republic of Haiti such officers and enlisted men of the United States Navy and the United States Marine Corps as may be mutually agreed upon by him and the President of the Kcpu]>lic of Haiti: Provided, That the officers and enlisted men so detailed be, and they are hereby, authorized to accept from the Government of Haiti the said employment with compensation and emoluments from the said Govern- ment of Haiti, subject to the approval of the President of the United States. — (39 Stat., 223, chap. 140.) Sec. 2. That to insure the continuance of this work during such time as may be desirable, the President may have the power of substitution in the case of the termination of the detail of any officer or enlisted man for any cause: Provided, That during the continuance of such details the officers and enlisted men shall continue to receive the pay and allowances of their ranks or ratings in the Navy or Marine Corps.— (39 Stat., 224, chap. 140.) Sec. 3. That the following increase in the United States Marine Corps be, and the same is hereby, authorized: Two majors, twelve captains, eighteen first lieutenants, two assistant quartermasters with the rank of captain, one assistant paymaster with the rank of captain, five quartermaster sergeants, five first sergeants, five gunnery sergeants, and eleven sergeants. — (39 Stat., 224, chap. 140.) Sec, 4. That the following increase in the United States Navy be, and the same is hereby authorized: One surgeon, two passed assistant surgeons, five hospital stewards, and ten hospital apprentices, first class. — (39 Stat., 224, chap. 140.) Sec. 5. That officers and enlisted men of the Navy and Marine Corps detailed for duty to assist the Republic of Haiti shall be entited to the same credit for such service, for longevity, retirement, foreign service, pay, and for * all other purposes, that they would receive if they were serving with the Navy or with the Marine Corps.— (39 Stat., 224, chap. 140.) As to acceptance of office under foreign govern- As to number of officers and enlisted men of the ments, see note to Constitution, Article I, Marine Corps, see note to section 1596, section 9, clause 8; see also joint resolution Revised Statutes; as to Medical Corps of of October 13, 1914 (38 Stat., 780), and acts the Navy, see note to section 1368, Ile\ised of February 11, 1918 (40 Stat., 437), and Statutes; and as to Hospital Corps, see act June 5, 1920 (41 Stat., 1056). of August 29, 1916 (39 Stat., 572). [1916, July 1, sec. 3. Annual reports; copy furnished Public Printer.] That appropriations herein and herafter made for printing and binding shall not be used for any annual report or the accompaning documents unless the copy therefor is furnished to the Public Printer in the following manner: Copies of the documents accompanying such annual reports on or before the fifteenth day of October of each year; copies of the annual reports on or before the fifteenth day of November of each year; complete revised proofs of the accom- panying documents and the annual reports on the tenth and twentieth days of November of each year, respectively; and all of said annual reports and accom- panying documents shall be printed, made public, and available for distri- bution not later than within the first five days after the assembling of each regular session of Congress: The provisions of this section shall not apply to 1416 Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. the annual reports of the Smithsonian Institution, the Commissioner of Patents, or the Comptroller of the Currency. — (39 Stat., 336, chap. 209). See notes to sections 196 and 429, Revised Statutes. [1916, July 1, sec. 4. Estimates; lump-sum appropriations.] That the information required in connection with estimates for general or lump-sum appropriations by section ten of the sundry civil appropriation Act, approved August first, nineteen hundred and fourteen, shall be submitted hereafter according to uniform and concise methods which shall be prescribed by the vSecretary of the Treasury, but with reference to estimates for pay of mechanics and laborers there shall be submitted in detail only the ratings and trades and the rates per diem paid or to be paid. — (39 Stat., 336, chap. 209.) The act of August 1, 1914, section 10 (38 Stat., 680), referred to in this section, expressly- amended and reenacted section 6 of the act of August 24, 1912 (37 Stat., 487); see the latter act and note thereto. [1916, July 1, sec. 6. Outstanding checks; annual report.] That hereafter at the termination of each fiscal year each Auditor of the Treasury shall report to the Secretary of the Treasury all checks issued by any disbursing officer of the Government as shown by his accounts rendered to such auditor, which shall then have been outstanding and unpaid for three years or more, stating fully in such report the name of the payee, for what purpose each check w^as given, the office on which drawn, the number of the voucher received therefor, the date, the number, and the amount for which it was drawn, and, when known, the residence of the payee. And such reports shall be in lieu of the returns required of disbursing officers by section three hundred and ten of the Revised Statutes.— (39 Stat., 336, chap. 209.) See section 310, Revised Statutes. [1916, Aug. 29. Appropriation for obtaining information; accounting.] That hereafter expenditures from the appropriation for obtaining information from abroad and at home shall be accounted for specifically, if, in the judgment of the Secretary of the Navy, they may be made public, and he shall make a certificate of the amount of such expenditures as he may think it advisable not to specify, and every such certificate shall be deemed a sufficient voucher for the sum therein expressed to have been expended. — (39 Stat., 557, chap. 417.) [1916, Aug. 29. Leave of absence; employees outside United States.] That hereafter any civilian employee of the Navy Department w^ho is a citizen of the United States and employed at any station outside the continental limits of the United States may, in the discretion of the Secretary of the Navy, after at least two years' continuous faithful, and satisfactory service abroad, and subject to the interests of the public service, be granted accrued leave of absence, with pay, for each year of service, and if an employee should elect to postpone the taking of any or all of the leave to which he may be entitled in pursuance hereof such leave may be allowed to accumulate for a period of not exceeding four years, the rate of pay for accrued leave to be the rate obtaining at the time the leave is granted. — (39 Stat., 557-558, chap. 417.) See note to section 1545, Revised Statutes. [1916, Aug. 29. Insane prisoners of war, etc.] Hereafter interned persons and prisoners of war, under the jurisdiction of the Navy Department, who 1417 Aug. 29, 1916. Pt. S. STATUTES AT LARGE. arc or may become insane, shall be entitled to admission for treatment to the Government Hospital for the Insane. — (39 Stat., 558, chap. 417.) The designation of the "Government Hospital I 1916 (39 Stat., 309), noted under section for the Insane" ^vas charged to "Saint 4838, Revised Statutes; see also section Elizaheths Hospital" hy act of July 1, ' 4843, Revised Statutes. [1916, Aug. 29. Chief of Naval Operations.] Hereafter the Chief of Naval Operations, while so serving as such Chief of Naval Operations, shall have the rank and title of admiral, to take rank next after The Admiral of the Navy, and shall, while so serving as Chief of Naval Operations, receive the pay of §10,000 per annum and no allowances. All orders issued by the Chief of Naval Opera- tions in performing the duties assigned him shall be performed under the authority of the Secretary of the Navy, and his orders shall be considered as emanating from the Secretary, and shall have full force and effect as such. To assist the Chief of Naval Operations in performing the duties of his office there siiall be assigned for this exclusive duty not less than fifteen officers of and above the rank of lieutenant commander of the Navy or major of the Marine Corps: Provided, That if an officer of the grade of captain be appointed Chief of Naval Operations he shall have the rank and title of admiral, as above provided, while holding that position: Provided further, That should an officer, while serving as Chief of Naval Operations, be retired from active service he shall be retired with the lineal rank and the retired pay to which he would be entitled had he not been serving as Chief of Naval Operations. — (39 Stat., 558, chap. 417.) Amendment to this provision was made bv act of July 1, 1918 (40 Stat., 716), as to allow- ances of the Chief of Naval Operations. The office of Chief of Naval Operations was es- tablished by act of March 3, 1915 (38 Stat., 929). See note to section 419, Re\ised Statutes. [1916, Aug. 29. Assistants to chiefs of bureaus and Judge Advocate General.] Hereafter an officer of the Corps of Civil Engineers may be detailed as assistant to the Chief of the Bureau of Yards and Docks and an officer of the Corps of Naval Constructors as assistant to the Chief of Bureau of Construction and Repair; and, in case of death, resignation, absence, or sickness of the chief of bureau, shall, imless otherwise directed by the President, as provided by section one hundred and seventy-nine of the Revised Statutes, perform the duties of such chief until his successor is appointed or such absence or sickness shall c^ase; and hereafter an officer of the line of the Navy or Marine Corps may be detailed as assistant to the Judge Advocate General of the Navy, who shall, under similar conditions, perform the duties of the Judge Advocate General. (39 Stat., 558, chap. 417.) See sections 178-182 and 421, ReAdsed Statutes, and notes thereto. For laws authorizing appointment of assistants to other chiefs of bureaus in the Na^^ De- partment, see references under section 421, Revised Statutes. [1916, Aug. 29. Lump sum employees; compensation, annual report.] Here- after such amount may be expended annually for pay of drafting, technical, and inspection force from the several lump sum appropriations in which specific authority for such expenditure is given, as the Secretary of the Navy may deem necessary within the limitation of appropriation provided for such service in said lump sum appropriations at such rates of compensation as the Secretary of the Navy may prescribe; and the Secretary of the Navy shall each year, in the 1418 Ft. 3. STATUTES AT LARGE. Aug. 29, 1916. annual estimates, report to Congress the number of persons so employed, their duties, and the amount paid to each. — :(39 Stat., 558, chap. 417.) See notes to sections 416, 429, and 1545, Revised Statutes. [1916, Aug-. 29. lease of naval lands.] That authority be, and is hereby, given to the Secretary of the Navy, when in his discretion it will be for the public good, to lease for periods not exceeding five years and revocable at any time, such property of the United States under his control as may not for the time being be required for public use and for the leasing of which there is no authority under existing law, and such leases shall be reported annually to Congress: Pro- vided, That the authority herein granted shall not be held to apply to oil, mineral, or phosphate lands : Provided further, That all moneys received from such leases shall be covered into the Treasiu-y as miscellaneous receipts. — (39 Stat., 559-560, chap. 417.) See acts of August 25, 1914 (38 Stat., 709), and February 25, 1920 (41 Stat., 437). [1916, Aug. 29. Honorable discharge; one year's service. Repealed.] This provision read as follows: ' ' That any person who may hereafter enlist in the Navy for the first time shall, in time of peace if he so elects, receive discharge therefrom with- out cost to himself during the month of June or December, respectively, following the comple- tion of one year's service at sea. An honorable discharge may be granted under this provision but when so granted shall not entitle the holder, in case of reenlistment, to the benefits of an honorable discharge granted upon completion of an enlistment: And provided further , That, at the time, he is not under charges, or undergoing punishment, or in debt to the Government." (39 Stat., 560, chap. 417.) It was expressly repealed by act of March 4, 1917 (39 Stat., 1171). [1916, Aug. 29. Postmasters enlisting recruits. Repealed.] This provision read as follows: ' ' That the President is authorized in his dis- cretion to utilize the services of postmasters of the second, third, and fourth classes in pro- curing the enlistment of recruits for the Navy and the Marine Corps, and for each recrmt ac- cepted for enlistment in the Navy or the Maiine Corps, the postmaster procuring his enlistment shall receive the smn of $5." (39 Stat., 560, chap. 417.) It was expressly repealed by act of July 2, 1918, section 11 (40 Stat., 754). As to annual reports required to be made by the Secretary of the Navy, see section 429, Revised Statutes, and notes thereto. [1916, Aug. 29. Armor plants; annual report.] The Secretary of the Navy shall keep accurate and itemized account of the cost per ton of the product of such factory or factories and report the same to Congress in his annual report.— (39 Stat., 564, chap. 417.) This paragraph followed authorization and appropriation for the erection and purchase of factories by the Secretary of the Navy, at locations approved by the General Board, for the manufacture of armor for the Navy. [1916, Aug. 29. Exchange of motor vehicles.] That hereafter worn-out motor-propelled vehicles for the Naval Establishment may be exchanged as a part of the purchase price of new ones. — (39 Stat., 565, chap. 417.) See section 418, Revised Statutes, and note thereto. [1916, Aug. 29. Hospital Corps; enlistments, appointments, and pro- motions ; pay ; duties ; etc.] Hereafter the authorized strength of the Hospital Corps of the Navy shall equal three and one-half per centum of the authorized enlisted strength of the Navy and Marine Corps, and shall be in addition thereto, and as soon as the necessary transfers or appointments may be effected the Hospital Corps of the United States Navy shall consist of the following grades and ratings: Chief pharmacists, pharmacists, and enlisted men classified as 54641°— 22- -90 1419 Aug. 29, 1916. Pt. 3. STATUTES AT LARGE. chief pharmacists' mates; pharmacists' mates, first class; pharmacists' mates, secimd chiss; pharmacists' mates, thii'd class; hospital apprentices, first class; ami hospital apprentices, second class; such classifications in enlisted ratings to correspond respectively to the enlisted ratings, seamen branch, of chief petty ollicers; petty oHicers, first class; petty officers, second class; petty officers, third class; seamen, first class; and seamen, second class: Provided, That enlisted" men of other ratings in the Navy and in the Marine Corps shall be eligible for transfer to the Hospital Corps, and men of that corps to other ratings in the Navy and the Marine Corps. — (39 Stat., 572, chap. 417.) The President may hereafter, from time to time, appoint as many pharma- cists as may be deemed necessary, from the rating of chief pharmacist's mate, subject to such moral, physical, and professional examinations and require- ments as to length of service as the Secretary of the Navy may prescribe: Provided, That the pharmacists now in the Hospital Corps of the United States Navy or hereafter appointed therein in accordance \\4th the provisions of this Act shall have the same rank, pay, and allowances as are now or may hereafter be allowed other warrant officers. — (39 Stat., 572-573, chap. 417.) Pharmacists shall, after six years from the date of warrant, be commis- sioned chief pharmacists after passing satisfactorily such examinations as the Secretary of the Navy may prescribe, and shall, when so commissioned, have the same rank, pay, and allowances as now or may hereafter be allowed other commissioned warrant officers: Provided, That the pharmacists at present in the service who have served or may hereafter serve six or more years in that grade shall be eligible for promotion to the grade of chief pharmacist upon satisfactorily passing the examinations provided for in this Act. The Secretary of the Navy is hereby empowered to limit and fix the numbers in the various ratings. Section three of an Act entitled ''An Act to organize a Hospital Corps of the Navy of the United States; to define its duties and regulate its pay," approved June seventeenth, eighteen hunch*ed and ninety-eight, be, and the same is hereby, repealed, and the pay, allowances, and emoluments of the enlisted men of the Hospital Corps shall be the same as are now, or may hereafter be, allowed for respective corresponding ratings, except the rating of turret captain of the first class in the seaman branch of the Navy: Provided, That the pay of the rating of the chief pharmacist's mate shall be the same as that now allowed for the existing rating of hospital steward. Hospital and ambulance service with such commands and at such places as may be prescribed by the Secretary of the Navy, shall be performed by members of said corps, and the corps shall be a constituent part of the Medical Department of the Navy; and the enlisted men thereof shall be a part of the enlisted force provided by law for the Navy. — (39 Stat., 573, chap. 417.) The Hospital Corps was established by act of June 17, 1898 (30 Stat., 474). See that act and note thereto. As to appointment and promotion of pharma- cists, see note to section 1405, Revised Statutes. As to the authorized enlisted strength of the As to pay of pharmacists and chief pharmacists, see note to section 1556, Revised Statutes, under "25. Warrant officers, acting warrant officers, and commissioned warrant officers;" as to pay of enlisted men of the Navy, see note to section 1569, Revised Statutes. As to the organization of the Medical Depart- Navy and Marine f "orps, see notes to sections ] ment of the N avy, see note to section 1368, 1417 and 1596, Revised Statutes. i Revised Statutes. 1420 PL 3. STATUTES AT LARGE. Aug. 29, 1916. [1916, Aug. 29. Medical personnel serving with the Army.] Officers and enlisted men of the Medical Department of the Navy, serving with a body of marines detached for service with the Ai-my in accordance with the provisions of section sixteen hundred and twenty-one of the Revised Statutes, sliall, while so serving, be subject to the rules and articles of war prescribed for the government of the Army in the same manner as the officers and men of the Marine Corps while so serving. — (39 Stat., 573, chap. 417.) See note to section 1621, Revised Statutes; see also article 2 of the Articles of War, act of June 4, 1920 (40 Stat., 787). _ [1916, Aug. 29. Naval Dental Corps.] That the President of the United States is hereby authorized to appoint and commission, by and with the advice and consent of the Senate, dental officers in the Navy at the rate of one for each thousand of the total authorized number of officers and enlisted men of the Navy and Marine Corps, in the grades of assistant dental surgeon, passed assistant dental surgeon and dental surgeon, who shall constitute the Naval Dental Corps, and shall be a part of the MecUcal Department of the Navy. Original appointments to the Naval Dental Corps shall be made in the grade of assistant dental surgeon %vith the rank of lieutenant (junior grade), and all dental officers now in the Dental Corps appointed under the provisions of the Act of Congress approved August twenty-second, nineteen hundred and twelve (Statutes at Large, volume thirty-seven, page three hundred and forty-five), or under the provisions of the Act of Congress approved August twenty-ninth, nineteen hundred and sixteen (Statutes at Large, volume thirty-nine, page five hundi-ed and seventy- three) , or who may hereafter be appointed shall take rank and precedence with officers of the Naval Medical Corps of the same rank according to the dates of their respective commissions or original appointments, and all such dental officers shall be eligible for advancement in grade and rank in the same manner and under the same conditions as officers of the Naval Medical Cx>rps with or next after wdiom they take precedence, and shall receive the same pay and allowances as officers of corresponding rank and length of service in the Naval Medical Corps up to and incluchng the rank of lieutenant commander: Provided, That dental surgeons shall be eligible for advancement in pay and allowances, but not in rank, to and including the pay and allow- ances of commander and captain, subject to such examinations as the Secretary of the Navy may prescribe, except that the number of dental surgeons wdth the pay and allowances of captain shall not exceed four and one-half per centum and the number of dental surgeons ^^^th the pay and allowances of commander shall not exceed eight per centum of the total authorized number of dental officers: Provided further, That dental surgeons shall be eligible for advancement to the pay and allowances of commander and captain when their total active service as dental officers in the Navy is such that if rendered as officers of the Naval Medical Corps, it would place them in the list of medical officers with the pay and allowances of commander or captain, as the case may be: And provided furtJier, That dental officers who shall have gained or lost numbers on the Navy list shall be considered to have gained or lost service accordingly; and the time served by dental officers on active duty as acting assistant dental surgeons 1421 Aug. 29, 1916. Pt. 3. STATUTES AT LARGE. and assistant dental surgeons under provisions of law existing prior to the passage of this Act sluill be reckoned in computing the increased service pay and service for precedence and promotion of dental officers herein authorized or heretofore ai)pointed. All appointees authorized by this Act shall be citizens of the United States between twenty-one and thirty-two years of age, and shall be graduates of standard medical or dental colleges and trained in the several branches of dentistry, and shall, before appointment, have successfully passed mental, moral, physical, and professional examinations before medical and professional ex- amining boards appointed by the Secretary of the Navy, and have been rec- ommended for appointment by such boards: Provided, That hereafter no per- son shall be appointed as assistant dental surgeon in the Navy who is not a graduate of a standard medical or dental college. Officers of the Naval Dental Corps shall become eligible for retirement in the same manner and under the same conditions as now prescribed by law for officers of the Naval Medical Corps, except that section fourteen hundred and forty-five of the Revised Statutes of the United States shall not be applica- ble to dental officers, and they shall not be entitled to rank above lieutenant commander on the retired list, or to retired pay above that of captain. All dental officers now serving under probationary appointments shall become immediately eligible for permanent appointment under the provisions of this Act, subject to the examinations prescribed by the Secretary of the Navy for original appointment as dental officers, and may be appointed assistant dental surgeon with the rank of lieutenant (junior grade) to rank from the date of their probationary appointments: Provided, That the senior dental officer now at the United States Naval Academy shall not be displaced by the provi- sions of this Act, and he shall hereafter have the grade of dental surgeon and the rank, pay, and allowances of lieutenant commander, and he shall not be eligible for retirement before he has reached the age of seventy years, except for physical disability incurred in the line of duty: Provided further, That no dental officer in the Navy who on original appointment as dental officer was over forty years of age shall be eligible for retirement before he has reached the age of seventy years, except for physical disability incurred in hne of duty. All Acts or parts of Acts inconsistent with the provisions of this Act relating to the Dental Corps of the Navy are hereby repealed: Provided, That nothing herein contained shall be construed to legislate out of the service any officer now in the Medical Department of the Nav}^ or to reduce the rank, pay, or allow- ances now authorized by law for any officer of the Navy. — (39 Stat., 573-574, chap. 417; 40 Stat., 708-710, chap. 114.) The foregoing paragraphs relating to the Naval Dental Corps were expressly amended and reenacted to read as above set forth by act of July 1, 1918 (40 Stat., 708-710). The Naval Dental Corps ^vas created bv act of August 22, 1912 (;i7 Stat., 344), which was superseded by the provisions on the same subject in the act of August 29, 1916 (39 SUt., 573-574). As to the organization of the Medical Depart- ment of the Navy, see note to section 1368, Revised Statutes. As to pay of Dental Corps, see note to section 1556, Revised Statutes; see also act of March 4, 1917 (39 Stat., 1182). 1422 Ft. 3. STATUTES AT LARGE. Aug. 29, 1916. [1916, Aug. 29. Dental Reserve Corps. Repealed.] tained in the act of August 29, 1916 (39 Stat., 574-575), which in tui'n were expressly repealed by act of July 1, 1918 (40 Stat., 708), which pro- vided for the transfer of Dental Reserve Corps officers to the Naval Reserve Force. A Navy Dental Reserve Corps was authorized by the act of March 4, 1913 (37 Stat., 903), to be organized and operated under the provisions of law providing for the Navy Medical Reserve Corps. Said act of March 4, 1913, was super- seded by provisions on the same subject con- [1916, Aug. 29, Authorized enlisted strength; men sentenced to discharge.] Pay of the Navy: * * * p^y of petty officers, seamen, landsmen, and apprentice seamen, including men in the engineers' force and men detailed for duty with the Fish Commission, sixty-eight thousand seven hundred men, and the President is hereafter authorized, whenever in his judgment a sufficient national emergency exists, to increase the authorized enlisted strength of the Navy to eighty-seven thousand men; and pay of enlisted men of the Hospital Corps, and for the pay of enlisted men detailed for duty with the Naval Militia, $30,655,704.29; pay of enlisted men undergoing sentence of court-martial, S225,000, and hereafter the number of enlisted men of the Navy shall be exclusive of those sentenced by court-martial to discharge * * *. — (39 Stat., 575, chap. 417.) be construed as reducing the permanent enlisted strength of the Regular Na\'y as authorized by existing law. See note to section 1417, Revised Statutes, for other laws relating to the enlisted strength of the Navy, and for definition of "author- ized enlisted strength," and "total author- ized enlisted strength." Men sentenced by court-martial to dis- charge. — The foregoing provisions in the act of August 29, 1916, that "hereafter the number of enlisted men of the Navy shaU be exclusive of those sentenced by court-martial to dis- charge," is permanent legislation, and modifies that contained in previous acts on the same sub- ject. (File 28687-4, Sept. 16, 1916. See note to sec. 1417, R. S.) By act of July 1, 1918 (40 Stat., 714), "the authorized enlisted strength of the active list of the Navy" was increased to 131,485; and by act of July 11, 1919 (41 Stat., 138), the"total authorized enlisted strength of the active list of the Navy" was temporarily increased, with the proviso "that nothing herein shall be construed as affecting the permanent * * * enlisted strength of the Regular Navy as authorized by existing law. ' ' The latter act further provided that "the President is hereby authorized, when- ever in his judgment a sufficient national emergency exists, to increase the author- ized enlisted strength of the Na\'y to 191,000 men." By act of June 4, 1920, section 2 (41 Stat., 834\ it was provided that nothing therein should [1916, Aug. 29. New ratings established.] That the designation of the rat- ing of coal passer be changed to fireman, third class, and that of ordinary sea- man, to seaman, second class, without change of pay; and that the Bureau of Navigation be authorized under rules established for the advancement of other enlisted men, to advance printers to the ratings of printer, first class, and chief printer, which ratings are hereby authorized with same pay and increases al- lowed to yeomen, first class, and chief yeomen, respectively: And 'provided further., That the rating of storekeeper is hereby established in the artificer branch with the following rates of pay per month: Chief petty officer, $50; petty officer, first class, $40; petty officer, second class, $35; petty officer, third class, $30, subject to such increases of pay and allowances as are or may hereafter be authorized by law for the enlisted men of the Navy. — (39 Stat., 575, chap. 417.) See note to section 1569, Revised Statutes, for later enactments as to the ratings and pay of enlisted men; and see particularlv act of June 4, 1920 (41 Stat., 836). 1423 Aug. 29, 1916. Pt. 3. STATUTES AT LARGE. Commissioned Personnel. [1916, Aug. 29. Midshipmen, appointments allowed President and Secretary of the Navy.] This provision reads as follows: "Hore- aftorin addition to tho ai>]iointnH'nt of niidship- nu'ii to the I'lutod States Naval Academy, as now ])rof!cnl)cd l)y law, the President is hereby allowed lil'teen apiKiintiiients annually instead often as now prescribed by law, and the Secre- tary of the Navy is allowed twenty-five ap- l>ointnients annually, instead of fifteen as now ]>rescribed by law, the latter to be appointed from the enlisted men of the Navy who are citizens of the United States, and not more than twenty years of age on the date of entrance to the Naval Academv, and who shall have served not less than one year as enlisted men on the date of entrance: Provided, That such appoint- ments shall be made in the order of merit from candidate's who have in competition with each other passed the mental examination now or hereafter required by law for entrance to the Naval Academy, and who passed the physical examinations required before entrance under existing laws." (39 Stat., 576, chap. 417.) It was superseded bv acts of March 4, 1917 (39 Stat., 1182), and December 20, 1917 (40 Stat., 430), noted under section 1513, Revised Statutes. [1916, Aug. 29. Filipino students, Naval Academy.] Tliat hereafter the Secretary of the Navy is authorized to permit not exceeding four Filipinos, to be designated, one for each class, by the Governor General of the Pliilippine Islands, to receive instruction at the United States Naval Academy at An- napolis, Maryland: Provided, That the Filipinos undergoing instruction, as herein authorized, shall receive the same pay, allowances, and emoluments, to be paid out of the same appropriations, and shall be subject to the same rules and regulations governing admission, attendance, discipline, resignation, dis- charge, dismissal, and graduation as are authorized by law and regulation for midshipmen appointed from the United States, but the Filipino midshipmen herein authorized shall not be entitled to appointment to any commissioned office in the United States Navy by reason of their graduation from the Naval Academy.— (39 Stat., 576, chap. 417.) See note to section 1513, Revised Statutes, under " Students from the Philippine Islands." COMMISSIONED PERSONNEL. [1916, Aug. 29. Number of commissioned officers, line of the Navy.] Here- after the total number of commissioned officers of the active list of the line of the Navy, exclusive of commissioned warrant officers, shall be four per centum of the total authorized enlisted strength of the active list, exclusive of the Hospital Corps, prisoners undergoing sentence of discharge, enlisted men detailed for duty with the Naval Militia, and the Flying Corps. — (39 Stat., 576, chap. 417.) By act of June 4, 1920, section 2 (41 Stat., 834), it was provided that "'the number of commissioned officers of the line, perma- nent, temporary, and reserve, on active duty shall not exceed 4 per centum of the total authorized enlisted strength of the Regular Navy; * * * that nothing herein shall be construed as reduc- ing the permanent commissioned * * * strength of the Regular Navy as authorized by existing law." As to total authorized enlisted strength of the Navy, see note to section 1417, Re- vised Statutes. As to number of commissioned officers in the staff corps, see provisions of this act (39 Stat., 577), set forth below. As to number of commissioned line officers, additional numbers, etc., see notes to sections 1363-1364, Revised Statutes. As to warrant officers and commissioned war- rant officers, see note to section 1405, Re- \nsod Statutes. The words "total number of commis- sioned officers of the active list of the line of the Navy," refer to the total authorized number of commissioned line officers of the active list, as distinguished from the actual numlier of such officers in the Navy at any one time. But no officers are included except those who are "commissioned" officers in the literal sense; hence, these words can not be construed to embrace acting ensigns, acting lieutenants of the junior grade, who are not commissioned by the President, and addi- tional number officers are not included. (File 28687-4, Sept. 16, 1916.) 1424 Commissioned Persomiei: Ft. 3. STATUTES AT LARGE. Aug. 29, 1916. [1916, Aug. 29. Distribution in grades of line oflacers.] That the total number of commissioned line officers on the active list at any one time, exclusive of commissioned warrant officers, shall be distributed in the proportion of one of the grade of rear admiral to four in the grade of captain, to seven in the grade of commander, to fourteen in the grade of lieutenant commander, to thirty- two and one-half in the grade of lieutenant, to forty-one and one-half in the grades of lieutenant (junior grade) and ensign, inclusive.— (39 Stat., 576, chap. 417.) See provisions of this act (39 Stat., 577), set forth below, as to computations to be made by the Secretary of the Navy to determine the number of officers in each grade and rank; distribution of officers between the upper and lower halves of the rank of rear admiral; disjjosition of fractional numbers resulting from com- putations; and exclusion of additional number officers from computations. See notes to sections 1362-1364, Revised Statutes, as to grades of line officers, etc. "Total number of commissioned line officers on the active list at any one time." — These words refer to the actual num- ber of commissioned line officers on the active list, as distinguished from the authorized number. They do not include anyone who is not actually a commissioned officer at the time under consideration. Thus, one com- missioned after July 1 in any year could not be counted as one of the commissioned officers on the active list July 1 of that year, notwithstanding that his commission when subsequently issued might bear date as of July 1 or prior thereto. (File 28687-4, Sept. 16, 1916. Compare act of July 1, 1918, 40 Stat., 716, providing that midshipmen may be com- missioned "'effective" from date of graduation.) [1916, Aug. 29. Promotions to lieutenant; length of service.] That lieu- tenants (junior grade) shall have had not less than three years' service in that grade before being eligible for promotion to the grade of lieutenant. — (39 Stat., 576, chap. 417.) See act of June 4, 1920, section 5 (41 Stat., 836), which suspended the operation of this provision until June 30, 1923. See act of March 3, 1899, section 7 (30 Stat., 1005), as to promotion of ensigns to lieu- tenants (junior grade), after three years, service. See notes to section 1561-1562, Revised Statutes, as to commencement of pay on promotion. [1916, Aug. 29. Number of commissioned officers, staff corps.] The total authorized number of commissioned officers of the active list of the following staff corps, exclusive of commissioned warrant officers, shall be based on per- centages of the total number of commissioned officers of the active list of the line of the Navy as follows : Pay Corps, twelve per centum; Construction Corps, five per centum; Corps of Civil Engineers, two per centum; and that the total authorized number of commissioned officers of the Medical Corps shall be sixty-five one hundredths of one per centum of the total authorized number of the officers and enlisted men of the Navy and Marine Corps, including midshipmen. Hospital Corps, prisoners undergoing sentence of discharge, enlisted men detailed for duty with the Naval Militia, and the Flying Corps. — (39 Stat., 576, chap. 417.) The designation of the "Pay Corps" was changed to "Supply Corps" by act of July 11, 1919 (41 Stat., 417). By act of June 4, 1920, section 2 (41 Stat., 834), it was provided that "the number of com- missioned officers of the line, permanent, temporary, and reserve on active duty shall not exceed 4 per centum of the total authorized enlisted strength of the Regular Navy, and the number of staff officers on active duty of whatever kind shall be in the same proportions as authorized by ex- isting law; * * * that nothing herein shall be construed as reducing the perma- nent commissioned or enlisted strength of the Regular Navy as authorized by existing law. " Medical Corps: See note to section 1368, Revised Statutes. As to total authorized niunber of enlisted men of the Navy, see note to section 1417, Re\-ised Statutes; as to au- thorized number of midshipmen, see note 1425 Aug. 29, 1916. Pt. S. STATUTES AT LARGE. Commissioned Persomiel. to section 1513, Revised Statutes; as to authorized commissioned and enlisted strensrth of the Marine Corps, see note to section 1596, Re\-ised Statutes. Dental Corps: See act of August 29, 1916 (39 Stat., 573-574). Supply Corps: See note to section 1376, Revised Statutes. Chajilain Corps: See note to section 1395, Re- \'ised Statutes, and see act of June 30, 1914 (38 Stat., 403). Professors of Mathematics: See note to section 1399, Re\ised Statutes. Construction Corps: See notes to sections 1402- 1403, Re\'ised Statutes. Civil Engineer Corps: See note to section 1413, Revised Statutes. Warrant officers and commissioned warrant officers: See note to section 1405, Revised Statutes. "Total authorized number of commis- sioned oflB-cers of the active list of the * * * staflE corps." — These words refer to the total authorized number of commissioned officers of the active list of the staff corps con- cerned, as distinfjuished from the actual niunber of such officers m the Nav>' at any one time. ' Additional numbers not included. (File j 28687-4, Sept. 16, 1916.) I To ascertain the "authorized" number of ! commissioned staff officers in the various corps i concerned, exclusive of commissioned warrant i officers, the total authorized number of commis- sioned line officers of the active list is taken as a basis, and not the actual number of commis- sioned line fficers. (File 28687-4, Sept. 16, 1916.) To ascertain the total authorized number of commissioned officers of the Medical Corps, the •'total authorized number of the officers and en- listed men of the Navy and Marine Corps" is taken as the basis; these words are used in the law in the broad sense, which includes every person authorized for the active list of the regular naval service. Where the total ''au- thorized " niunber is not fixed by law, as in the cases of some warrant and commissioned war- rant officers, the computation may be based upon the actual number of such officers; but in other cases, the computation should be fjased upon the "total authorized niunber" and not the actual number. (File 28687-4, Sept. 16, 1916.) [1916, Aug. 29. Advancement of staff officers below lieutenant commander; rank of assistant surgeons.] Officers of the lower grades of the Medical Corps, Pay Corps, Construction Corps, and Corps of Civil Engineers shall be advanced in rank up to and including the rank of lieutenant commander with the officers of the line with whom or next after whom they take precedence under existing law: Provided, That all assistant surgeons shall from date of their original appointment take rank and precedence with lieutenants (junior grade). — (39 Stat., 576-577, chap. 417.) struction Corps: see sections 1402-1403, 1477_, and 1480, Revised Statutes; Civil Engineer Corps: see sections 1413, 1478, and 1480, Revised Statutes; Chaplain Corps: see act of June 30, 1914 (38 Stat., 403), and notes to sections 1479-1480, Revised Statutes; professors of mathe- matics: see note to section 1480, Re^dsed Statutes; Dental Corps: see act of August 29, _ 1916 (39 Stat., 573-574). This pro\'ision as to advancement of staff offi- cers to higher ranks was suspended in certain cases until June 30, 1923: see act of June 4, 1920 (41 Stat., 836). Advancement in rank with line ofl&- cers. — Tliis enactment is substantially iden- tical -with the long established prior practice of advancing staff officers to higher ranks with. their "running mates," which found expres- sion in the Navy Regulations (e. g., art. 1005 (f), Na^'y Regs. 1913). The pre\'ious practice was not changed by this enactment, and as that practice was to advance staff officers in rank on the date their running mates in this line be- came due for promotion, regardless of whether or not the latter qualified for promotion as of that date, and not necessaiily contempora- neously with their line running mates, the same rule should be applied under this enactment. (File 28687-4:1, Sept. 16, 1916.) By act of May 22, 1917, section 17 (40 Stat., 89), it was pro\-ided that nothing contained in this act "shall operate to disturb the rela- tive position of officers in the ^ledical Corps -with reference to precedence or pro- motion, but all such officers otherwise qualified shall he advanced in rank ^^ith or ahead of officers in said corps who were their juniors on the date of said act. " A provision with reference to assistant civil engineers, similar to the above pro\iso relating to assistant surgeons, was embodied in act of March 4, 1917 (39 Stat., 1184). As to advance ment of staff officers to the ranks of commander, captain, and rear admirals, see act of July 1, 1918 (40 Stat., 718). As to change in designation of "Pay Corps" to "Supply Corps," see act of July 11, 1919 (41 Stat., 147). As to precedence of line and staff officera, see sections 1485-1486, Re\dsed Statutes, and notes thereto. Examinations required for advancement in rank of staff officers: See sections 1493 and 1496, Re\ised Statutes, and act of Mav 22, 1917, section 20 (40 Stat., 89). Rank and promotion in Medical Corps: see sec- tions 1371, 1474, and 1480, Revised Sta- tutes; Supply Corps: see sections 1380, 1475, and 1480, Revised Statutes; Con- 1426 Commissioned Persomiel. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. Rank of assistant surgeons. — The proviso in the act of August 29, 1916, as to the rank of assistant sui'geous is explicit; in order to give effect thereto, certain officers in the grade of assistant surgeon on the date of that act must be given precedence mth the line officers who were lieutenants (junior grade) when such assistant surgeons were originally appointed, and "mth whom or next after whom" the assistant sur- geons in question took precedence on date of appointment; the assistant surgeons in question will thus in some cases be given precedence ahead of certain passed assistant surgeons, but this is a matter which can be remedied only by Congress. (File 11130-37, Jan. 19, 1917. See actof May 22, 1917, sec. 17, above quoted, which was enacted to remedy this situation.) [1916, Aug. 29. Computations; authorized number in each rank, line and staff.] That to determine the authorized number of officers in the various grades and ranks of the line and of the staff corps as herein provided, computa- tions shall be made by the Secretary of the Navy semiannually, as of July first and January first of each year, and the resulting numbers in the various grades and ranks, as so computed, shall be held and considered for all purposes as the authorized number of officers in such various grades and ranks and shall not be varied between such dates. — (39 Stat., 577, chap. 417.) This provision Avas amended by act of July 11, 1919 (41 Stat., 139), which provided that "the provision of existing law which re- quires the Secretary of the Navy to make computations semiannually as of July 1 and January 1 of each year * * * is here- by amended so that said computations shall be made * * * at least once each year and at such times as the Secretary of the Navy may direct * * *." See provisions of this act (39 Stat., 577), set forth below, as to distribution of officers between upper and lower halves in the rank of rear admiral; disposition of frac- tional numbers in computation of officers; and exclusion of additional number officers from computations. The words, "such, dates," as used in the act of August 29, 1916, referred specifically to the dates of July 1 and January 1 of each year; accordingly, the provision against varying the number of officers between those dates resulted in preventing additional appointments of com- missioned officers except on the dates men- tioned and not between those dates. By act of May 22, 1917, section 6 (40 Stat., 86), the Secre- tary of the Navy was authorized, during the existing war, to make computations on July 1 and January 1 of each year, ' ' and at such other times as he may deem necessary." This enact- ment suspended temporarily the restriction contained in the act of August 29, 1916, upon varying the number of officers between specified dates, and permitted of daily computations if the Secretary considered such action advisa- ble. The result was that additional appoint- ments of commissioned officers in the lowest grades, line and staff, could be made under said provision of May 22, 1917, at anv time that eligibles became available. (File 28687-22, June 14, 1917.) [1916, Aug. 29. Staff officers, distribution in grades; appointments in Medical and Construction Corps; qualifications.] The total number of com- missioned officers of the active list of the following mentioned staff corps at any one tune, exclusive of commissioned warrant officers, shall be distributed in the various grades of the respective corps as follows: IMedical Corps : One-half medical directors with the rank of rear admiral to four medical directors with the rank of captain, to eight medical inspectors with rank of commander, to eighty-seven and one-half in the grades below medical mspector : Provided, That hereafter appointees to the grade of assistant surgeon shall be between the ages of twenty-one and thirty-two at the time of appomtment. Pay Corps : One-half pay directors with the rank of rear admiral to four pay directors with the rank of captain, to eight pay inspectors with the rank of commander, to eighty-seven and one-half in the grades below pay inspector. Construction Corps: One-half naval constructors with the rank of rear admiral to eight and one-half naval constructors with the rank of captain, to fourteen naval constructors with the rank of commander, to seventy-seven naval constructors and assistant naval constructors with rank below com- 1427 Aug. 29, 1916. Pt. S. STATUTES AT LARGE. Commissioned Personnel. mander: Provided, That vacancies in the Construction Corps shall bo filled in the manner now proscribed by law, at such annual rate as the Secretary of the Navy may proscribe: Provided further, That hereafter ensigns of not less than one year's service as such shall be eligible for transfer to the Construction Corps. Corps of Ci\T[l Engineers: One-half civil engineers w^ith the rank of roar admiral to five and one-half civil engineers with the rank of captain, to fourteen civil engineers w'ith the rank of commander, to eighty civil engineers and assistant civil engineers with the rank below commander. — (39 Stat., 577, chap. 417.) The designation of the "Pay Corps" was chantjed to "Supply Corps" by act of Julv 11, 1919 (41 Stat., 147). As to number and rank of officers in the staff corps, see the following citations: Medical Corps: sections 1368 and 1474, Re^dsed Statutes; Supply Corps: sections 1376 and 1475, Revised Statutes; Construction Corps: sections 1402, 1403, and 1477, Revised Statutes; Civil Engineer Corps: sections 1413 and 1478, RcNised Statutes; Chaplain Corps: sections 1395 and 1479, Revised Statutes, and act of June 30, 1914 (38 Stat., 403); Professors of mathematics: sections 1399 and 1480, Rc^-ised Statutes; Dental Corps: act of August 29, 1916 (39 Stat., 573-574). See note to section 1480, Revised Statutes, as to filling of vacancies in the rank of rear- admiial under this provision; and see act of July 1,1918 ( 40 Stat., 718), as to advance- ment by selection to the ranks of com- mander, captain, and rear admiral in the staff corps of the Navy. Qualifications for appointment as assistant surgeon: See section 1370, Re\ised Stat- utes, and note thereto. Vacancies in the Construction Corps, how filled: See sections 1402-1403, Revised Statutes, and notes thereto. Computations to determine number of officers in each grade and rank in certain staff corps: See pro\'ision of this act (39 Stat., 577), set forth above. See below (39 Stat., 577), as to distribution of officers between upper and lower halves of rear admiral, disposition of fractional numbers resulting from computations, and exclusion of additional-number offi- cers in making computations. See above as to distribution in grades of line officers. [1916,. Aug. 29. Professors of mathematics, no further appointments.] Here- after no further appointments shall be made to the Corps of Professors of Mathematics, and that corps shall cease to exist upon the death, resignation, or dismissal of the officers now carried in that corps on the active and retired lists of the Navy.— (39 Stat., 577, chap. 417.) See sections 1399-1401, and 1480, Revised Statutes, and notes thereto. [1916, Aug. 29. Rear admirals, distribution between upper and lower halves.] When there is an odd number of officers in the grade or rank of rear admiral in the line or in each corps, the lower division thereof shall include the excess in number, except where there is but one. — (39 Stat., 577, chap. 417.) act (39 Stat., 577-578), set forth below, as to pay of rear admirals. See note to section 13G2, Revised Statutes, as to division of rear admirals into two grades for pay purposes; and see provision of this [1916, Aug. 29. Computations, disposition of fractional numbers.] Whenever a final fraction occurs in computing the authorized number of any corps, grade or rank in the naval service, the nearest whole munber shall be regarded as the authorized number: Provided, That at least one officer shall be allowed in each grade or rank. — (39 Stat., 577, chap. 417.) line or in a staff corps authorized for the period following the computations, while in other cases, the result may be a shortage of one in such total authorized number. The provisions of the law in this respect are confiicting, and under such circumstances the total number authorized for the line or the particular corps Total number of officers not to be ex- ceeded. — In comjjutiug the authorized num- ber of officers in the various grades and ranks in the manner prescribed, by taking the near- est whole number whenever a final fraction occurs, the result may be in some cases an excess of one officer in the total number of the 1428 Commissioned Persomiel. Ft. 3. STATUTES AT LARGE. Aug. 29, 1916. concerned shotild control; this may be done by adding one officer to the authorized number in the lowest grade or rank, or subtracting one therefrom, as the case may be, in order to make the total number conform to the total number authorized for the period involved. (File 28687-1, Sept. 16, 1916.) Computations in Marine Corps. —The words "naval ser\-ice"' as used in this provision Anth reference to final fractions in computing the number of officers, etc., include the Marine Corps. (File 28687-5, Aug. 29, 1916; see note to sec. 1596, R. S., "Computing number of officers.") [1916, Aug. 29. Computations; additional number officers excluded; no re- duction in any staff grade.] For the purpose of determining the authorized number of officers in any grade or rank of the Ime or of the staff corps, there sliall be excluded from consideration those officers cari'ied by law as additional numbers, including staff officers heretofore permanently commissioned witli the rank of rear admiral, and nothing contained herein shall be held to reduce below that heretofore authorized by law the number of officers in any grade or rank in the staff corps. — (39 Stat., 577, chap. 417.) See note to section 1363, Revised Statutes, as to additional number officers; see note to sec- tion 421, Re\dsed Statutes, under "Rank of chiefs of bmreaus," with reference to the act of June 24, 1910 (36 Stat., 607, repealed by act of August 22, 1912. 37 Stat., 328), under which certain staff officers were commissioned with the permanent rank of rear admii'al on the active list prior to the act of August 29, 1916; and see act of March 4, 1915 (cited in note to sec. 1478, R. S.\ under which an officer in the CiA-il Engineer Corps was commissioned \riX\i the permanent rank of rear admiral on the active list. See notes to sections 1368, 1376, 1395, 1399, 1402, 1403, and 1413, Re\ised Statutes, as to numbers of officers authorized in the va- rious staff corps. Additional number oflB.cers. — While there are many references in the act of August 29, 1916, to additional number officers, which show that Congress was familiar with the legislation on that subject, there is nothing in said act which expressly indicates that Congi'ess in- tended to repeal prior laws relating thereto and to proAdde that additional number officers should become regular numbers on promotion; instead, the act indicates the contrary; accord- ingly, held, that officers who are additional numbers in grade continue to be additional numbers after promotion bv selection. (File 28687-11, Jan. 2, 1917.) [1916, Aug. 29. Rea,r admirals, pay and allowances.] Hereafter pay and allowances of officers in the upper half of the grade or rank of rear admiral, including the staff corps and including staff officers heretofore permanently conmiissioned with the rank of rear admiral, shall be that now allowed by law for the first nine rear admirals, and the pay and allowances of officers in the lower half of the grade or rank of rear admiral, including the staff corps, shall be that now allowed by law for the second nine rear admirals. — (39 Stat., 577- 578, chap. 417.) See note to section 1362, Revised Statutes, as to division of rear admii'als into two gi'ades for pay purposes; see note to section 1556, Re^dsed Statutes, as to pay of rear admirals; see notes to sections 1487 and 1558, Re\'ised Statutes, as to allowances; and see note to section 421, Revised Statutes, under "Rank of, chiefs of bureaus," and note to section 1478, Re\dsed Statutes, as to staff officers permanently commissioned \vith the rank of rear admiral on the active list prior to the act of August 29, 1916. [1916, Aug. 29. Rank by date of commission, staff corps; exceptions.] That officers shall take rank in each staff corps according to the dates of commission in the several grades, excepting in cases where- they have gained or lost numbers. — (39 Stat., 578, chap. 417.) See notes to sections 1485-1486, RoAosed Statutes. [1916, Aug. 29. Commissioned warrant officers, pay and allowances.] Here- after chief boatswains, chief gunners, chief machinists, chief carpenters, chief sail makers, chief pharmacists, and chief pay clerks, on the active list with 1429 Aug. 20, 1916. Ft. S. STATUTES AT LARGE. Commissioned Persomiel. creditable records, shall, after six years from date of commission, receive the pay and allowances that are now or may hereafter be allowed a lieutenant (junior grade). United States Navy: Provided, That chief boatswains, chief gunners, chief machinists, chief carpenters, chief sail makers, chief pharmacists, and chief pay clerks, on the active list with creditable records, shall, after twelve years from date of commission, receive the pay and allowances that are now or may hereafter be allowed a lieutenant, United States Navy. — (39 Stat., 578, chap. 417.) See note to section 1556, Revised Statutes, under "25. Warrant officers, acting warrant officers, and commissioned warrant officers." [1916, Aug. 29. Warrant officers, heat and light; leave of absence.] War- rant officers shall receive the same allowances of heat and light as are now or may hereafter be allowed an ensign, United States Navy. Warrant officers shall be allowed such leave of absence, with full pay, as is now or may hereafter be allowed other officers of the United States Navy. — (39 Stat., 578, chap. 417.) See note to section 1487, Revised Statutes, as to allowance of quarters and heat and light therefor. See note to section 1556, Revised Statutes, under "40. Absence from duty. " [1916, Aug. 29. Promotion by selection, line officers.] Hereafter all pro- motions to the grades of commander, captain, and rear admiral of the line of the Navy, including the promotion of those captains, commanders, and lieu- tenant commanders who are, or may be, carried on the Navy list as additional to the numbers of such grades, shall be by selection only from the next lower respective grade upon the recommendation of a board of naval officers as herein provided.— (39 Stat., 578, chap. 417.) The provisions of this act relating to promotion by selection were extended, with certain modifications, to the staff corps by act of July 1, 1918 (40 Stat., 718). By act of July 11, 1919 (41 Stat., 147), it was provided: "That the provisions of the Act of August 29, 1916, regarding the promo- tion of captains in the line of the permanent Navy shall not restrict the promotion of such captains as may have been wounded in line of duty and who are now on tlie active list, and such captains shall be entitled to the benefits of the provisions of section 1494, Revised Statutes of the United States, and also to the benefits of the Act of March 4, 1911." The requirement of this provision, that promo- tions be made "from the next lower respective grade, " was suspended in cer- tain cases until June 30, 1923, by act of June 4, 1920, section 5 (41 Stat., 836), having previously been suspended in the same class of cases by act of July 11, 1919 (41 Stat., 140). See note to section 1458, Revised Statutes, on general subject of promotion. Selection law not applicable to tem- porary promotions. — This act clearly relates to promotions in the permanent Navy. The act of May 22, 1917 (40 Stat., 85), authorized temporary promotions to all grades, without making any express provision as to the manner in which such promotions were to be made: Held, that such temporary promotions above the grade of lieutenant commander may be made without compliance with the selection law of August 29, 1916; but that the provisions of said law may be extended by regulations to such temporary promotions if deemed advisable. (File 28687-22, June 14, 1917.) The Secretary of the Navy established a procedure with reference to the selection of officers for temporary promotion somewhat similar to that recjuired by the act of August 29, 1916, ^\itli reference to permanent promo- tions: Held, that this did not have the effect of making any provision of said act of August 29, 1916, applicable to such temporary promotions, but was merely a procedure administratively adopted which was not binding upon the Sec- retary, who could modify same if he deemed it advisable to do so. (File 26521-230:5, Feb. 1, 1918.) [1916, Aug. 29. Selection board; proceedings.] The board shall consist of nine rear admirals on the active list of the line of the Navy not restricted by law to the performance of shore duty only, and shall be appointed by the Sec- 1430 Commissioned Persomiel. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. retary of the Navy and convened during the month of December of each year and as soon after the first day of the month as practicable. Each member of said board shall swear, or affirm, that he will, without prejudice or partiality, and havmg m view solely the special fitness of officers and the efficiency of the naval service, perform the duties imposed upon him as herein provided. The board shall be furnished by the Secretary of the Navy with the number of vacancies in the grades of rear admiral, captain, and commander to be filled during the following calendar year, including the vacancies existing at the tune of the convening of the board and those that will occur by operation of law from the date of convenmg until the end of the next calendar year, and with the names of all officers who are eligible for consideration for selection as herein authorized, together with the record of each officer: Provided, That any officer eligible for consideration for selection shall have the right to forward through official channels at any time not later than ten days after the convening of said board a written communication invitmg attention to any matter of record in the Navy Department concerning himseH which he deems important in the consideration of his case : Provided, That such communication shall not contain any reflection upon the character, conduct, or motives of or criticism of any officer.— (39 Stat., 578, chap. 417.) Amendment to this pro^dsion was made by act of July 11, 1919 (41 Stat., 139), as follows: "The provision of existing law which requires the Secretar>^ of the ^axy * * * to convene the boards to select officers of the line and of the staff corps for promotion is hereby amended so that * * * said boards shall be convened at least once each year and at such times as the Secre- tary of the Na\'y may direct, and the boards shall recommend for promotion such number of officers as may be nec- essary to fill vacancies then existing and which may occur diuing the next period of time." The provisions of this act as to promotion by selection were extended, with certain modifications, to the staff corps by act of July 1,1918 (40 Stat., 718). See note to section 1499, Re^dsed Statutes, under "Records submitted to Board on Selection for promotion. " Date of vacancy on retirement. — The retirement of an officer on his own application, pursuant to section 1443, Re%Tsed Statutes, takes effect, so as to create a vacancy which may be filled by the appointing power, on the date when his application for retirement is approved by the President, and is not deferred untU the date he receives notice of the Presi- dent's action. (32 Op. Atty. Gen., 176. See also notes to sees. 1444 and 1458, R. S.) Membership of selection board. — Offi- cers of the line of the Navy who have c}ualified for the permanent rank of rear admiral, and who have been commissioned as such by the President during a recess of the Senate, are qualified for 8er^•ice as members of the selection board pro^•ided bv the act of August 29, 1916. (FUe 28687-31, Oct. 11, 1920.) Additional number officers, if recom- mended for promotion, will not become regular numbers if promoted, and are therefore in ad- dition to the number of vacancies as furnished the selection board. (File 28687-11, Jan. 2, 1917.) Names of officers previously selected but not promoted must be submitted to the next selection board, if otherwise eligible for consideration. Under the act of August 29, 1916, the officer's eligibility for promotion after favorable recommendation by a selection board continued until the end of the following cal- endar year; if no vacancy occtured in the next higher gi'ade to which he could be promoted dmingthat calendar year, he became ineligible for promotion unless again recommended by a selection board. BvactofMav22, 1917, section 6 (40 Stat. 86), the Secretary of the Navy was authorized, during the existing war, to convene selection boards ' ' at such times as the exigencies of the ser"vice may require." Under this amendment, an officer recommended by a special board so convened continued eligible for promotion only during such indefinite period as might intervene between the date that his eligibility attached and the convening of the next following board for selection; and if no vacancy occurred for him in the meantime, his name was required to be furnished to the new board, if still eligible for consideration. (File 28687-22, June 20, 1917; 28687-22:1, Dec. 27, 1918.) 1431 Aug. 29, 1916. Ft. 3. STATUTES AT LARGE. Commissioned Persomiel. Tem.porary promotions. — The require- ment as to four years' service in o;rade before becoming eligible for consideration by the selection board does not a]5ply with respect to temporary promotions under the act of May 22, 1917 (40 Stat., 85); but the President may' pre- scribe a similar requirement for temporary pro- motion if he deems such action advisable. (File 28687-22, June 14, 1917.) [1916, Aug. 29. Service in grade necessary before selection.] That no captains, commanders, or lieutenant commanders who shall have had less than four years' service in the grade in which he is serving on November the thu-tieth of the year of the convening of the board shall be eligible for considera- tion by the board. — (39 Stat., 578, chap. 417.) This requirement as to length of service in grade not applicable to the selection of staff officers under the act of Jxily 1, 1918 (40 Stat., 718). This requirement as to length of service in gi'ade was suspended in certain cases until June 30, 1923, by act of Juno 4, 1920, sec- tion 5 (41 Stat., 836), having previously been suspended until July 1, 1920, in the same class of cases, by act of July 11, 1919 (41 Stat.. 140). [1916, Aug. 29. Engineer officers, eligibility for selection; additional numbers.] That the recommendation of the board in the case of officers of the former Engineer Corps who are restricted by law to the performance of shore duty only and in that of officers who may hereafter be assigned to engineering duty only shall be based upon their comparative fitness for the duties pre- scribed for them by law. Upon promotion they shall be carried as additional numbers in grade. — (39 Stat., 578-579, chap. 417.) See note to section 1390, Revised Statutes, for laws relating to officers for engineering duty only; and see note to section 1363, Revised Statutes, for laws relating to additional officers. See provisions of this act (39 Stat., 579),' set forth below, as to recommendation of selec- tion board and exemption from sea service in the cases of engineer officers; and see below (39 Stat., 584), as to promotion of officers commissioned for aeronautic duty only. [1916, Aug. 29. Number of officers recommended for promotion; six members of board must concur.] The board shall recommend for promotion a number of officers in each grade equal to the number of vacancies to be filled in the next higher grade during the following calendar year: Provided, That no officer shall be recommended for promotion unless he shall have received the recom- mendation of not less than six members of said board. — (39 Stat., 579, chap. 417.) Amendment to this provision was made by act of July 11, 1919 (41 Stat., 139), which pro- vided for selection boards being convened ' ' at such times as the Secretary of the Navy may direct," and further provided that "the boards shall recommend for promo- tion such number of officers as may be neces- sary to fill vacancies then existing and which may occur during the next period of time." Additional number officers continue to be additional numbers after promotion by selec- tion. This provision \Y\th. reference to engi- neer officers indicates that it was not the piu"- pose of Congress to abolish additional number officers with reference to higher grades in the Une filled by selection. Prior laws relating to additional number officers are not repealed by the act of August 29, 1916, nor do such officers become regular numbers on promotion. (File 28687-11, Jan. 2, 1917.) As to selection of staff officers, see act of Julv 1, 1918 (40 Stat., 718). As to form of board's recommendation, see below (39 Stat., 579). Additional number officers, if recom- mended for promotion, will not become regular numbers when promoted, but mil continue to be additional numbers in their grade; they are therefore in addition to the number of vacancies as furnished the selection board. (File 28687-11, Jan. 2, 1917.) [1916, Aug. 29. Annual appointment of captains limited. Repealed.] This provision read as follows: ■'That the increase in the number of captains herein authorized shall be made at the rate of not more than ten captains in any one year." (39 Stat., 579, chap. 417.) It was expressly repealed by act of May 22, 1917, section 14 (40 Stat., 87). 1432 Commissioned Personnel. Ft. 3. STATUTES AT LARGE. Aug. 29, 1916. [1916, Aug. 29. Recommendation of selection board to be in writing, etc. ; report as to engineer officers.] The report of the board shall be in writing signed by all of the members and shall certify that the board has carefully con- sidered the case of every officer eligible for consideration under the provisions of this law, and that in the opinion of at least six of the members, the officers therein recommended are the best fitted of all those under consideration to assume the duties of the next higher grade, except that the recommendation of the board in the case of officers of the former Engineer Corps who are restricted by law to the performance of shore duty only, and in that of officers "who may hereafter be assigned to engineering duty only, shall be based upon their com- parative fitness for the duties prescribed for them by law. — (39 Stat., 579, chap. 417.) See above (39 Stat., 578-579), as to engineer officers; and see below (39 Stat., 584), as to promotion of officers commissioned for aeronautic duty only. See act of July 1, 1918 (40 Stat., 718), as to selection of staff officers. [1916, Aug. 29. President's action; reconvening of selection board.] The report of the board shall be submitted to the President for approval or disap- proval. In case any officer or officers recommended by the board are not acceptable to the President, the board shall be informed of the name of such officer or officers, and shall recommend a number of officers equal to the number of those found not acceptable to the President and if necessary shall be recon- vened for this purpose. — (39 Stat., 579, chap. 417.) As to action by the President in the cases of retiring and promotion boards, see notes to sections 1452 and 1502, Revised Statutes. See note to Constitution, Article II, section 2, clause 2, as to President's power with re- spect to appointment and promotion of officers; see also notes to sections 1458 and 1480, Ile\'ised Statutes, on the same sub- ject. [1916, Aug. 29. President's approval of selection board's report; profes- sional and physical examinations required ; rank on promotion or retirement.] When the report of the board shall have been approved by the President, the officers recommended therein shall be deemed eligible for selection, and if promoted shall tal^e rank with one another in accordance with their seniority in the grade from which promoted: Provided, That any officers so selected shall prior to promotion be subject in all respects to the examinations prescribed by law for officers promoted by seniority, and in case of failure to pass the required professional examination such officer shall thereafter be ineligible for selection and promotion. And should any such officer fail to pass the requii'ed physical examination he shall not be considered, in the event of retirement, entitled to the rank of the next higher grade. — (39 Stat., 579, chap. 417.) Examinations for promotion: see sections 1493- 1505, Re\Tsed Statutes. See act of March 4, 1911 (36 Stat., 1267), which was modified by this provision as to the rank of officers retired after failure to pass the physical examination for promotion. By act of July 11, 1919 (41 Stat., 147), this restriction on retired rank was made in- applicable to any captain then on the active list who had been wounded in line of duty. (See note to sec. 1494, R. S.) Eligibility for selection; when termi- nated. — Under the act of August 29, 1916, an officer's eligibility for selection continued until the end of the calendar year following the favor- able recommendation of the board. Under the amendment of May 22, 1917 (40 Stat., 86), which authorized the Secretary to convene selection boards "at such times as the exigen- cies of the service may require," officers re- commended by a board so convened continued eligible only until the next board was con. 1433 Aug. 29, 1916. PL 3. STATUTES AT LARGE. Commissioned Persomi«l. voned. If no vacancies occurred to which they could be ])roniotcd durinfi; the calendar year, in the one case, or, in the other, during the period until the next selection board was con- vened, their elip:ibility for i)romotion ceased, unless they were again selected; and their names, 11 6ther\\ise eligible for consideration, must be submitted to the next selection board. (File 28687-22, June 20, 1917; 28687- 22 : 1, Dec. 27, 1918.) Examinations after selection. — An officer examined professionally and physically prior to being recommended for promotion by the selection board, must be reexamined after selec- tion for promotion. (File 26521-337, June 23, 1919, citing 26260-3630 : 2.) The requirements of the selection law, in- cluding examinations prior to promotion, were not applicable to temporary promotions author- ized by act of May 22, 1917; but the President had power to make regulations requiring such examinations before promotion if he deemed such action advisable. (File 28687-22, June 14, 1917.) [1916, Aug. 29. Sea service and age requirements for promotion; excep- tions.] On and after June thirtieth, nineteen hundred and twenty, no captain commander, or lieutenant commander shall be promoted unless he has had not less than two years' actual sea service on seagoing ships in the grade in which serving or who is more than fifty-six, fifty, or forty-five years of age, respectively: Provided, That in exceptional cases where officers are specifically designated during war or national emergency declared by the President by the Secretary of the Navy as performing, or as having performed, such highly important duties on shore that their services can not be or could not have been spared from such assignment without serious prejudice to the successful prosecution of the war, the qualification of sea service in the cases of those officers so specifically designated shall not apply while the United States is at war, or during a national emergency declared by the President, or within two and one-half years subsequent to the ending of such war or national emergency: Provided, That the qualification of sea service shall not apply to officers restricted to the performance of engineering duty only. — (39 Stat., 579, chap. 417; 40 Stat., 717-718, chap. 114.) This paragraph was expressly amended to read as above by act of July 1, 1918 (40 Stat., 717-718), which inserted therein the first proviso above set forth, relating to shore duty in time of war or emergency. (See Joint Res., Mar. 3, 1921, 41 Stat., 1359, as to constructive termination of war with Ger- many and Austria-Hungary.) By act of July 11, 1919 (41 Stat., 140), the "age and grade " requirement prescribed by tMs act "in the rank of commander" was ' ' extended from June 30, 1920, to June 30, 1921;" and by act of June 4, 1920, section 10 (41 Stat., 837), "the age limits for pro- motion by selection" were "deferred until June 30, 1921 " in the cases of officers "who mav request such deferment." By act' of July 11, 1919 (41 Stat., 140), aU '• statutory requirements other than profes- sional and physical examinations," with respect to promotion by selection were sus- pended in certain cases until July 1, 1920; [1916, Aug. 29. Retirement of oflacers ineligible for selection.] That captains, commanders, and lieutenant commanders who become ineligible for promotion on account of age shall be retired on a percentage of pay equal to two and one- half per centum of their shore-duty pay for each year of service: Provided further. That the total retired pay shall not exceed seventy-five per centum of the shore-duty pay they were entitled to receive while on the active list. — (39 Stat., 579, chap. 417.) 1434 and by act of June 4, 1920, section 5, (41 Stat., 836), all such requirements "other than age and professional and physical examination" were similarly suspended in certain cases until June 30, 1923. See other special provisions of this act, set forth above, with respect to promotion by selec- tion of engineer officers; and see special provisions of this act (39 Stat., 584), set forth below, as to promotion of officers commissioned for aeronautic duty only. By act of June 4, 1920, section 5 (41 Stat.,*836)^ the requirements of this provision as to age. limits for promotion were suspended in the cases of officers appointed to the line from sources other than the Naval Academy, as. authorized by that act, until they have rendered 10 years' service in the grade oi lieutenant commander, six years in the grade of commander or eight vears in the grade of captain. Engineering Duty. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. See sections 1443-1465, and 1588, Revised 1 See acts of March 3, 1883 (22 Stat., 473), and Statutes, for general provisions relating to June 10, 1896 (29 Stat., 361), and note to retirement. section 1443, Revised Statutes, as to service credited for retirement, etc. [1916, Aug. 29. Retiring age, 64 years.] Except as herein otherwise provided, hereafter the age for retirement of all officers of the Navy shall be sixty-four years instead of sixty-two years as now prescribed by law. — (39 Stat., 579, chap. 417.) See sections 1444, 1481, and 1588, Revised Statutes. [1916, Aug. 29. Rank and pay not reduced.] Nothing contained in this Act shall be construed to reduce the rank, pay, or allowances of any officer of the Navy or Marine Corps as now provided by law. — (39 Stat., 579, chap. 417.) OFFICERS FOR ENGINEERING DUTY ONLY. [1916, Aug. 29. Detail of line officers for engineering duty.] Officers of the line of the Navy not below the grade of lieutenant may, upon application, and with the approval of the Secretary of the Navy, be assigned to engineering duty only, and that when so assigned and until they reach the grade of commander, they shall perform duty as prescribed in section four of the Personnel Act approved IVlarch third, eighteen hundred and ninety-nine, and thereafter shore duty only as now prescribed for officers transferred to the line from the former engineer corps, except that commanders may be assigned to duty as fleet and squadron engineers: Provided, That when so assigned they shall retain their place ^vith respect to other line officers in the grades they now or may hereafter occupy, and also the right to succession to command on shore in accordance with their seniority, and shall be promoted as vacancies occur subject to physi- cal examination and to such examination in engineering as the Secretary of the Navy may prescribe: Provided further, That the number of officers so assigned in any one year shall be in accordance with the requirements of the service as determined by the Secretary of the Navy. — (39 Stat., 580, chap. 417.) See acts of March 3, 1899, section 4 (30 Stat., 1005), February 16, 1914, section 21 (38 Stat., 283), and March 3, 1915 (38 Stat., 930); see also notes to sections 1390-1394 Re- \'ised Statutes. See pro\dsions of this act (39 Stat., 578-579), as to promotion by selection of officers assigned to engineering duty only. [1916, Aug. 29. Acting ensigns for engineering duty ; appointment and pro- motion.] That the Secretary of the Navy is hereby authorized to appoint annually in the line of the Navy for a period of ten years follo^sdng the passage of this Act, in the order of merit determined by such competitive examination as he may prescribe, thirty acting ensigns for the performance of engineering duties only. Persons so appointed must have received a degree of mechanical or electrical engineer from a college or university of high standing or be gradu- ates of technical schools approved by the Secretary of the Navy, must have been found physically qualified by a board of medical officers of the Navy for the performance of the duties required, and must at the time of appointment be not less than twenty nor more than twenty-six years of age. Such appoint- ments shall be for a probationary period of three years, and may be revoked at any time by the Secretary of the Navy. 54641°— 22 91 1435 Aug. 29, 1916. Pt.S. STA TIJTES A T LARGE. Engineering Duty. See section 1410, Revised Statutes, and note thereto, as to status of "acting"' officers. Such acting ensigns shall, upon the completion of the probationary period of three years, of which two years shall have been spent on board cruising vessels and one year pursuing a course of instruction at the Naval Academy prescribed by the Secretary of the Navy, be commissioned in the grade of lieutenant of the junior grade after satisfactorily passing such examination as may be pre- scribed by the Secretary of the Navy, and having been recommended for pro- motion by the examining board and found physically qualified by a board of medical officers of the Navy. Such officers shall thereafter be required to perform engineering duties only, and shall be eligible for advancement to the higher grades in the manner herein provided for line officers assigned to engineering duty only. — (39 Stat., 580, chap. 417.) See note above under this act (39 Stat., 576), as to number of commissioned officers not including acting ensigns. [1916, Aug. 29. Absence due to misconduct.] Hereafter no officer or enhsted man in the Navy or Marine Corps in active service who shall be absent from duty on account of injury, sickness or disease resulting from his own intem- perate use of drugs or alcoholic liquors, or other misconduct, shall receive pay for the period of such absence, the time so absent and the cause thereof to be ascertained under such procedure and regulations as may be prescribed by the Secretary of the Navy: Provided, That an erdistment shall not be regarded as complete until the enlisted man shaU have made good any time in excess of one day lost on account of injury, sickness or disease resulting from his own intemperate use of drugs or alcoholic liquors, or other miscon- duct.— (39 Stat., 580, chap. 417; 40 Stat., 717, chap. 114.) Revised vStatutes, article 8, under "Making good time lost by absence;" note to Con- stitution, Article I, section 9, clause 3, as to bills of attainder; and notes to sections 1418 and 1608, Revised Statutes, as to de- tention of men after expii-ation of enlist- ment. This paragraph was expressly amended to read as above by act of July 1, 1918 (40 Stat., 717), which inserted therein, in two places, the word "injury" followed by a comma. See note to section 1556, Revised Statutes, under "40. Absence from duty;" note to section 1569, Revised Statutes, under "13. Forfeiture of pay;" note to section 1624, [1916, Aug. 29. Furloughs in lieu of discharge.] The Secretary of the Navy is hereby authorized to grant furlough without pay to enlisted men for a period covering the unexpired portion of their enlistment: Provided, That such fur- lough be granted under the same conditions and in lieu of discharge by purchase or by special order of the department. Enlisted men so furloughed shall be subject to recall in time of war or national emergency to complete the unex- pired portion of their enlistment, and shall be in addition to the authorized number of enlisted men of the Navy. — (39 Stat., 580-581, chap. 417.) As to discharge by purchase, see act of March 3, 1893 (27 Stat., 717); as to refund of enlist- ment bounty by men discharged within six months of enlistment, see act of June 29, 1906 (34 Stat., 556); and as to refund on discharge within 12 months of enlistment in certain cases, see act of March 2, 1907 (34 Stat., 1176). See note to section 1417, Revised Statutes, imder "Enlisted men furloughed without pay." [1916, Aug. 29. Red Cross, detail of medical officers to.] Hereafter the authorized number of surgeons in the United States Navy be, and it is hereby, increased by one; and that hereafter the Secretary of the Navy be, and he is 1436 Flying Corps. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. hereby, authorized to detail one or more officers of the Medical Corps of the United States Navy for duty with the Mihtary Relief Division of the American National Red Cross. — (39 Stat., 581, chap. 417.) See note to section T368, Revised Statutes, as to See act of April 24, 1912 (37 Stat., 90-91), and authorized number of medical officers; Joint Resolution of May 8, 1914 (38 Stat., and see provision of this act (39 Stat., 576), 771), relating to the Red Cross, set forth above, as to number of commis- sioned officers of the Staff Corps. [1916, Aug. 29. Retired officer on duty with General Board.] This provision read as follows: "No officer who, after having commanded a fleet in active commission, has been retired for age and whom, in the judgmentof the Secretary of the Na\-y, the public interests make it neces- sary to retain for a time after said retii'ement and who is performing active duty as chairman of the executive committee of the General Board, shall, for the period so retained, suffer any reduction in the emoluments he was receiving at the time of his retirement." (39 Stat., 581, chap. 417.) It has been fully executed, and is no longer in force or effect. The officer to Avhom it applied was Rear Admiral Charles J. Badger. [1916, Aug. 29. Pay of retired officers on active duty.] That hereafter any retired officer of the naval service who shall be detailed on active duty shall, while so serving, receive the active duty pay and allowances of the grade, not above that of lieutenant commander in the Navy or of major in the Marine Corps, that he would have attained in due course of promotion if he had re- mained on the active list for a period beyond the date or his retirement equal to the total amount of time during which he has been detailed on active duty since his retirement: Provided, That nothing herein shall be construed to reduce the pay of any retired officer on active duty whose retired pay exceeds the active duty pay and allowances for the grade of lieutenant commander. — (39 Stat., 581, chap. 417.) See note to section 1592, Revised Statutes, for other laws relating to pay of retired officers on active duty. [1916, Aug. 29. Pay and allowances of commissioned officers, active list.] Hereafter all commissioned officers of the active list of the Navy shall receive the same pay and allowances according to rank and length of service : Provided, That this provision shall not be construed to reduce the pay and allowances of commissioned warrant officers as herein authorized. — (39 Stat., 581, chap. 417.) As to effect of this provision, see note to section As to pay of commissioned officers, see, gen- 1556, Revised Statutes, under "23. Chap- erally, note to section 1556, Revised Stat- lains and acting chaplains." utes; as to allowances, see notes to sections 1487 and 1558, Re\'ised Statutes. NAVAL FLYIXG CORPS. [1916, Aug. 29. Composition of Flying Corps.] The Naval Flying Corps shall be composed of one hundred and fifty officers and three hundred and fifty enlisted men, detailed, appointed, commissioned, enhsted, and distributed in the various grades, ranks, and ratings of the Navy and Marine Corps as hereafter provided. The said number of officers, student flyers, and enlisted men shall be in addition to the total number of officers and enlisted men which is now or may hereafter be provided by law for the other branches of the naval service. — (39 Stat., 582, chap. 417.) 1437 Aug. 29, 1916. Ft. 3. STATUTES AT LARGE. Flying Corps. See art of June 5, 1<»20 (41 Stat., 9.54), as to distributiou of Army and Navy aviation control. See below (.39 Stat., 592), as to Naval Reserve Flying Corps. [1916, Aug. 29. Detail of officers to actual flying.] The number of ofRcers detailed to duty in aircraft involving actual flying in any one year shall be in accordance with the requirements of the Air Service as determined by the Secretary of the Navy: Provided, That the officers so detailed from the line of the Navy and from the Marine Corps shall not exceed the total number herein prescribed for the Naval Flying Corps: Provided further, That the proportion of line ofRcers of the Navy and of the Marine Corps thus detailed shall be the same as the proportion established for the regular services: And provided further, That the student flyers hereinafter provided for shall be in addition to the officers and enlisted men comprising the Naval Flying Corps. — (39 Stat., 582-583, chap. 417.) [1916, Aug. 29. Pay and allowances. Flying Corps.] The ofRcers detailed and the enlisted men of the Naval Flying Corps shall receive the same pay and allowances that are now provided by law for ofRcers and enlisted men of the same grade or rank and rating in the Navy and Marine Corps detailed to duty with aircraft involving actual flying. — (39 Stat., 583, chap. 417.) By act of July 1, 1918 (40 Stat., 718), increased allowances for aviation duty were pro- hibited. See act of March 3, 1915 (38 Stat., 939), and note to section 1556, Revised Statutes, under "38. Additional pav for special duty." Number and pay of ofl&cers detailed to actual flying. — Under the act of August 29, 1916, in addition to the number of officers in the regular Naval Flj-ing Corps, the Secretary of the Navy is authorized to detail for duty involving actual flying in aircraft, either as stu- dent aviators, student airmen, or qualified naval aviators, such number of naval officers, not in excess of the number prescribed in that act for the regular Flying Corps, as he shall de- termine the needs of the air service require; and while so detailed such officers are entitled to 50 per cent or 35 per cent increase of pay and allowances, according as they have or have not qualified as naval aviators. (23 Comp. Dec, 583. But see act of July 1, 1918, above noted, as to increase of allowances.) [1916, Aug. 29. Acting ensigns and acting second lieutenants for aeronautic duty.] These paragraphs read as foUows: "The vSecretary of the Navy is hereby authorized to appoint annually in the line of the Navy and the Marine Corps for a period of two years follomng the passage of this Act, in order of merit as determined by such competi- tive examinations as he may prescribe, fifteen acting ensigns or acting second lieutenants for the jjerformauce of aeronautic duties only. Persons so appointed must be citizens of the United States, and may be appointed from warrant officers or enlisted men of the naval service or from civil life, and must, at the time of appointment, be not less than eighteen or more than twenty-four years of age: Provided, That no person shall be so api^ointed until he has been found physically qualified by a board of medical officers of the Navy for the performance of the duties required: Provided further, That the number of such appointments to the line of tlie Navy and of the Marine Corps shall be in the proportion decided for the regular services. Such appointments shall be for a probationary period of three yeare and may be revoked at any time by the Secretary of the Navy. "Such acting ensigns and acting second lieu- tenants shall be detailed to duty in the Naval Flying Corps in aircraft involving actual flying. "Such acting ensigns of the Navy and acting second lieutenants of the Marine Corps shall, upon completion of the probationary period of three years, be appointed acting lieutenants of the junior grade, or acting first lieutenants, respectively, by the Secretary of the Navy for the performance of aeronautic duties only, after saiisfactorily passing such examinations as he may prescribe, and after ha^dng been recommended for promotion by the examining board and found physically qualified by a board of medical officers of the Navy. Such appointments shall be for a probationary period of four years and may be revoked at any time by the Secretary of the Navy. "Such acting lieutenants (junior grade) and acting first lieutenants may elect to qualify for aeronautic duty only or to qualify for all the duties of officers of the same grade in the Navy and in the Marine Corps, respectively. ThoSe officers who elect to qualifj' for aeronautic duty only shall be detailed to duty in the Naval Flying Corps involving actual flying 1438 Flying Corps. PL S. STATUTES A T LARGE. Aug. 29, 1916. in aircraft. Those officers who elect to qualify for the regular duties of their grade shall be detailed to duty in the regular service for at least two years to allow them to prepare for such qualification. "Such acting lieutenants (junior grade) and acting first lieutenants who have elected to qualify for aeronautic duty only shall, upon completion of the probationary period of four years, be commissioned in the grade of lieu- tenant of the line of the Navy or captain of the Marine Corps for aeronautic duties only, after satisfactorily passing such competitive examination as may be prescribed by the Secretary of the Navy to determine their moral, physical, and professional qualifica- tions for such commissions and the order of rank in which they shall be commissioned. Such lieutenants for aeronautic duty only shall be borne on the list as extra numbers, taking rank with and next after officers of the same date of commission. (39 Stat., 583, chap. 417.) "Such acting lieutenants (junior grade) and acting first lieutenants who have elected to qualify for the regular duties of the line of the Navy and of the Marine Corps, respectively, shall, upon completion of the probationary period of four years, two years of which shall have been on such regular duties, be commis- sioned in the grade of the line of the Navy or Marine Corps according to his length of service, after passing satisfactorily such competitive examinations as may be prescribed by the Secretary of the Navy to determine their moral, physical, and professional qualifications for such commissions and to determine the order of rank in which they shall be commis- sioned. Such officers of the line of the Navy and Marine Corps will be borne upon the lists of their respective corps as extra numbers, taking rank with and next after officers of the regular services of the same date of commissions. "Acting lieutenants (junior grade) of the line of the Navy for aeronautic duties only and acting first lieutenants of the Marine Corps for aeronautic duty only who have completed the probationary period of four years may, upon examination for commissions to the next higher grade, if recommended by the board of examination, be transferred to the Naval Reserve Flying Corps and commissioned in the same grade or the next higher grade as may be recommended in accordance with their qualifications as determined by the examina- tion: Provided, That at any time during such probationary period any such officer can, upon his own request, if his record warrants it, be transferred to the Naval Reserve Flying Corps and commissioned in the acting grade he then holds. Any officer of the Naval Flying Corps holding an appointment of student flyer or acting ensign, second lieutenant, lieutenant (junior grade), or first lieutenant, who, upon examination for promotion, is found not quali- fied shall, if not recommended by the examin- ing board for transfer to the Naval Reserve Flying Corps, be honorably discharged from the naval ser\-ice." (39 Stat., 584, chap. 417.) The above paragraphs were rendered obsolete two years after the passage of this act, o^\ing to the fact that no appointments were made of acting ensigns or acting second lieutenants as therein authorized. [1916, Aug. 29. Promotion of officers commissioned for aeronautic duty- only.] Officers commissioned for aeronautic duty only shall be eligible for advancement to the higher grades, not above captain in the Navy or colonel in the Marine Corps, in the same manner as other officers whose employment is not so restricted, except that they shall be eligible to promotion without restriction as to sea duty, and their professional examinations shall be restricted to the duty to which personally assigned: Provided, That any such officer must serve at least three years in any grade before being eligible to promotion to the next higher grade. — (39 Stat., 584, chap. 417.) [1916, Aug. 29. Detail from other branches as student aviators or airmen; pay.] Nothing in this Act shall be so construed as to prevent the detail of officers and enlisted men of other branches of the Navy as student aviators or student airmen in such numbers as the needs of the service may require. Such officers and enlisted men, while detailed as student aviators and student airmen involving actually flying in aircraft, shall receive the same pay and allowances that are now provided by law for officers and enlisted men of the same grade or rank and rating in the Navy detailed for duty with aircraft.— (39 Stat., 584, chap. 417.) See note above (39 Stat., 583), as to pay and allowances for aviation duty. [1916, Aug. 29. Student flyers, appointment, instruction, promotion, etc.] These paragraphs read as follows: ' ' The Secretary of the Navy is hereby author- ized to appoint annually for a period of four years, from enlisted men of the naval service, or from citizens of the United States in civil life, not to exceed thirty student flyers for in- 1439 Aug. 29, 1916. PL S. STATUTES A T LARGE. Flying Corps. Btrurtion and traininu; in aeronautics who shall receive the same ])ay and allowances as mid- shipmen at the United Stales Naval Academy: Provided, That persons so appointed must, at the time of ai)j)ointment, l)e not less than seven- teen or more than twenty-one years of age: Provided furllur, That no person shall be ap- pointed a student flyer until he shall have qual- ified therefor by such examination as may be prescribed bv the Secretarv of the Navy. (39 Stat., 584, chap. 417.) "The appointment of student flyers shall con- tinue in force for two years, unless sooner re- voked by the Secretary of the Navy, in his discretion, and at the end of such period stu- dent flyers shall be examined for qualification as qualified aviators: Provided, That if such stu- dent flyers are not qualified, their appointment \W11 be revoked, or, if recommended by the examining board, they shall be transferred to the Naval Reserve Flying Corps and commis- sioned as ensigns therein. "Student flyers shall, after receiving a cer- tificate of qualification as an aviator for actual fljing in aiixraft, rank with midshipmen and shall receive the same pay and allowances as midshipmen, plus fifty per centum thereof: Provided, That student flyers who have qual- ified as a\-iators under the pro\isions of this Act shall be commissioned acting ensigns for aero- nautic duties only, after three years' service: Provided further, That they shall have been examined by a board of officers of the Naval Fl.\ing Corps to determine by a competitive examination prescribed by the Secretary of the Navy their moral, physical, and profes.sional fitness and the order of rank in which they shall be commissioned: And provided further , That any student flyer qualified as an a\T.ator may at any time, in the discretion of the Secretary of the Navy, if his record warrants it, at his own request, be transferred to the Naval Reserve Flying Corps and be commissioned as ensign therein: And -provided further, That student flyers not considered qualified for commissions as acting ensigns for aeronautic duties only may, upon recommendation of the examining board, be transferred to the Naval Reserve Fljdng Corps and be commissioned as ensigns therein. "The Secretary of the Na\y is hereby author- ized to estal>lish aeronautic schools for the in- struction and training of student flyers and pre- scribe the course of instruction and qualifica- tions for certificate of graduation as a qualified aviator." (39 Stat., 585, chap. 417.) The above paragraphs were rendered obsolete four years after the date of this act, owing to the fact that no appointments were made of student flyers for instruction and training as therein authorized. [1916, Aug 29. Temporary details for aircraft duty.] Nothing in this or any other Act shall be so construed as to prevent the temporary detail of officers and enlisted men of any branch of the Navy for duty with aircraft. — (39 Stat., 585, chap. 417.) [1916, Aug. 29. Aviation accidents, payment of gratuity and pension.] This paragraph read as follows: " In the event of the death of an officer or en- listed man or student flyer of the Naval Fljing Corps from wounds or disease, the result of an aviation accident, not the result of his own mis- conduct, received while engaged in actual fljdngin or in handling aiirraft, the gratuity tobe paid under the provisions of the Act approved August twenty-second, nineteen hundred and twelve, entitled 'An Act making appropriations for the naval service for the fiscal year ending June thirtieth, nineteen hundred and thirteen, and for other purposes,' shall be an amount equal to one year's pay at the rate received by such officer or enlisted man or student flyer at the time of the accident resulting in his death. In all cases where an oflicer or enlisted man or student flyer of the Navy or Marine Corps dies, or where a student flyer or an enlisted man of the Navy or Marine Corps is disabled by reason of any injury received or disease contracted in line of duty, the result of an a\T.ation accident, received while employed in actual fljing in or handling aircraft, the amount of pension al- lowed shall be double that authorized to be paid should death or the disabiUty have oc- curred by reason of an injury received or dis- ease contracted in line of duty not the result of an aviation accident." (39 Stat., 585, chap. 417.) It was repealed, together with the provis- ions of the act of August 22, 1912 (37 Stat., 329), referred to herein, by act of October 6, 1917, section 312 (40 Stat., 408), which also repealed a provision on the same subject in the act of March 3, 1915 (38 Stat., 939-940). (See 31 Op. Attv. Gen., 205.) By act of June 4, 1920 (41 Stat., 824), pro- vision is made for payment in cases of death of persons in the naval service. [1916, Aug. 29. Student flyers and acting officers, laws applicable to.] This paragraph read as follow^s: "Student flyers and the acting ensigns and acting lieutenants (junior grade) and acting second and first lieutenants for aeronautic du- ties only provided for herein shall be subject to the laws and regulations and orders for the government of the Navy, but shall not be en- [1916, Aug. 29. Ratings of enlisted men, Flying Corps.] The enlisted personnel of the Naval Flying Corps shall be distributed by the Secretary of titled to retirement or retired pay." (39 Stat., 585, chap. 417.) It was rendered obsolete by the fact that no appointments of student flyers or acting ofiicers were made as authorized by this act. (See above, 39 Stat., 583, 584, and 585.) 1440 Naval Courts. Pi. 3. STATUTES AT LARGE. Aug. 29, 1916. tlie Navy in the various ratings as now obtain in the Navy in so far as such ratings are applicable to duties co^inected with aircraft. — (39 Stat., 585-586, chap. 417.) See note to section 1569, Revised Statutes, as to enlisted ratings in the Navy; and note to section 1608, Revised Statutes, as to enlisted ratings in the Marine Corps. [1916, Aug. 29. Enlisted men transferred to Flying Corps.] corps: Provided, That the niunber so trans- ferred shall not exceed one-half the total num- ber of enlisted men allowed by this Act." (39 Stat., 586, chap. 417.) It expired by limitation two years after approval of this act. This paragraph read as follows: ' ' Within the first two years after the approval of this Act enlisted men may be transferred from other branches of the Naval Service to the Naval Flying Corps, under regulations es- tablished by the Secretary of the Navy govern- ing such transfer and the qualifications for this [1916, Aug. 29. Term of enlistment, etc., Flying Corps; regulations.] The Secretary of the Navy shall establish regulations governing the term of enlistment, the qualifications, and advancement of the enlisted men of the Flying Corps.— (39 Stat., 586, chap. 417.) See note to section 1418, Revised Statutes, as to term of enlistment in the Navy; and see notes to sections 161 and 1547, Revised Statutes, on general subject of regulations. [1916, Aug. 29. Student flyers, appointments from enlisted men.] This paragraph read as follows: "Any enlisted man who passes satisfactorily the prescribed examination and is recom- mended by a board of officers may be appointed a student flyer as herein provided." (39 Stat., 586, chap. 417.) It was rendered obsolete by the fact that no appointments of student flyers were made from enlisted men as provided by this act. The authority for such appointments expired four years after the date of this act. (See above, 39 Stat., 584-585.) ADMINISTRATION Or JUSTICE. [1916, Aug. 29. Deck courts ; punishments by commanding officers.] Here- after all officers of the Navy and Marine Corps who are authorized to order either general or summary courts-martial may order deck courts upon enlisted men under theu" command, and shall have the same authority to inflict minor punishments as is conferred by law upon the commander of a naval vessel. — (39 Stat., 586, chap. 417.) See act of February 16, 1909 (35 Stat., 621), establishing deck courts, and which was amended by this paragraph; see provi- sions of this act, set forth below, and notes to section 1624, Revised Statutes, articles 26 and 38, as to summary and general courts-martial; see note to section 1624, Revised Statutes, articles 24 and 25, as to punishments by commanding officers. [1916, Aug. 29. Summary courts-martial, by whom convened; deck courts and minor punishments at naval hospitals.] Summary courts-martial may be ordered upon enlisted men in the naval service under his command by the com- manding officer of any brigade, regiment, or separate or detached battalion, or other separate or detached command, and, when empowered by the Secretary of the Navy, by the commanding ofiicer or officer in charge of any command not specifically mentioned in the foregoing: Provided, That when so empowered by the Secretary of the Navy to order summary courts-martial, the command- ing officer of a naval hospital or hospital ship shall be empowered to order such courts and deck courts, and inflict the punishments which the conmaander of a naval vessel is authorized by law to inflict, upon all enlisted men of the naval 1441 Statutes, as to command of hospital ships; see also note to section 1529, Revised Statutes. Aug. 29, 1916. Pt. 3. STATUTES AT LARGE. Naval Courts. service attached thereto, whether for duty or as patients. — (39 Stat., 586, chap. 417.) See note to section 1024, Revised Statutes, article 26, as to summary courts-martial- and see note to section 1488, Revised [1916, Aug. 29. Execution of summary court-martial sentences.] No sen- tence of a summary court-martial shall be carried into execution until the pro- ceedings and sentence have been approved by the officer ordering the court, or his successor in office, and by his immediate superior in command: Provided, That if the officer ordering the court, or his successor in office, be the senior officer present, such sentence may be earned into execution upon his approval thereof.— (39 Stat., 586, chap. 417.) See note to section 1624, Revised Statutes, article 32; and see act of February 10, 1909, sections 9 and 17 (35 Stat., 621, 623). [1916, Aug. 29. General courts-martial, by whom convened.] When em- powered by the Secretary of the Navy, general courts-martial may be convened by the commanding officer of a squadron, of a division, of a flotilla, or of a larger naval force afloat, and of a brigade or larger force of the naval service on shore beyond the continental limits of the United States: Provided, That in time of war, if then so empowered by the Secretary of the Navy, general courts- martial may be convened by the commandant of any navy yard or naval sta- tion, and by the commanding officer of a brigade or larger force of the Navy or Marine Corps on shore not attached to a navy yard or naval station. — (39 Stat., 586, chap. 417.) See note to section 1624, Revised Statutes, article 38. [1916, Aug. 29. Courts of inquiry, by whom convened.] Courts of inquiry may be convened by any officer of the naval service authorized by law to con- vene general courts-martial. — ^(39 Stat., 586, chap. 417.) See note to section 1624, Revised Statutes, article 55. [1916, Aug. 29. Marines embarked on naval vessels; power of officers.] When a force of marines is embarked on a naval vessel, or vessels, as a separate organization, not a part of the authorized complement thereof, the authority and powers of the officers of such separate origanization of marines shall be the same as though such organization were serving at a navy yard on shore, but nothing herein shall be construed as impairing the paramount authority of the commanding officer of any naval vessel over the vessel under his command and all persons embarked thereon. — (39 Stat., 586, chap. 417.) See sections 1616 and 1617, Revised Statutes, and notes thereto. NAVAL RESERVE FORCE. [1916, Aug. 29. Classes in Naval Reserve Force. There is hereby estab- lished, under the Department of the Navy, a Naval Reserve Force, to consist of six classes, designated as follows and as hereinafter described : First. The Fleet Naval Reserve. Second. The Naval Reserve. Third. The Naval Auxiliary Reserve. Fourth. The Naval Coast Defense Reserve. 1442 Naval Reserve Force. PL 3. STATUTES AT LARGE. Aug. 29, 1916. Fifth. The Volunteer Naval Reserve. Sixth. Naval Reserve Flying Corps. — (39 Stat., 587, chap. 417.) The National Naval Volunteers was abolished, and the members thereof transferred to the various classes of the Naval Reserve Force and Marine Corps Reserve, bv act of July 1, 1918 (40 Stat., 708). Mileage allowed naval reservists honorably released from active duty: See act of June 3, 1910, section 126 (39 Stat., 217), as amended and reenacted bv act of Feb- ruary 28, 1919 (40 Stat., 1203). [1916, Aug. 29. Members, citizenship; obligation assumed; naturalization.] The Naval Reserve Force shall be composed of citizens of the United States who, by enrolling under regulations prescribed by the Secretary of the Navy or by transfer thereto as m this Act provided, obligate themselves to serve m the Navy in time of war or during the existence of a national emergency, declared by the President: Provided, That citizens of the msular possessions of the United States may enroll in the Naval Auxiliary Reserve. Provided further^ That such persons who are not citizens of the United States, but who have or shall have declared then intention to become citizens of the United States, and who are citizens of countries which are at peace with the United States, may enroll in the Naval Reserve Force subject to the condition that they may be discharged from such enrollment at any time within the discretion of the Secretary of the Navy, and such persons who may, mider existing law, become citizens of the United States, and who render honorable service in the Naval Reserve Force in time of war for a period of not less than one year may become citizens of the United States without proof of residence on shore and without further requii'ement than proof of good moral character and certificate from the Secretary of the Navy that such honorable service was actually rendered. — - (39 Stat., 587, chap. 417; 40 Stat., 84, chap. 18.) This paragraph was expressly amended to read as above by act of May 22, 1917 (40 Stat., 84), which added thereto the words, [1916, Aug. 29. Regulations, Naval Reserve Force.] The Secretary of the Navy shall make all necessary and proper regulations not inconsistent with law for the administration of the provisions of this Act which relate to the Naval Reserve Force. — (39 Stat., 587, chap. 417.) See notes to sections 161 and 1547, Revised Statutes, on the general subject of regulations. [1916, Aug. 29. Active service during war, etc.] Members of the Naval Reserve Force may be ordered into active service in the Navy by the President in time of war or when, in his opinion, a national emergency exists. — (39 Stat., 587, chap. 417.) "Provided further" to the end of the paragraph as above set forth. Active duty afloat in time of peace was au- thorized by act of July 1, 1918 (40 Stat., 711). Not to perform active duty on shore of a kind ordinarily performed by ci\ilians. (Act July 11, 1919, 41 Stat., 138.) See below (39 Stat., 588), as to active service during war, etc. See act of June 4, 1920, section 2 (41 Stat., 834), as to active duty authorized in time of peace to supply deficiencies in enlisted strength of the Navy. [1916, Aug. 29. Ranks and ratings; engineering duties, etc.] There shall be allowed in the Naval Reserve Force the various ratings, grades, and ranks, not above the rank of lieutenant commander, corresponding to those in the Navy. Officers of the line may be appointed for deck or engineering duties, as they may elect. — (39 Stat., 587, chap. 417.) 1443 Aug. 29, 1916. Pt. S. STATUTES AT LARGE. Naval Reserve Force. Promotion above the grade of lieutenant com- mander in time of war was authorized bv act of July 1, 1918 (40 Stat., 711). Transfer to the Naval Reserve Fierce of meml>ers of the National Naval Volunteers, in the ranks held iiy them at that time, was authorized hyact of July 1, 1918 (40 Stat., 708), wliich further authorized reenroll- ment of members in the Naval Reserve Force in the ranks held by them on ter- mination of their last enrollment. As to oflicers for engineering duty only, see act of February 16, 1914, section 21 (.38 Stat., 289-290); see also act of March 3, 1915 (38 Stat., 930), and note thereto. [1916, Aug. 29. Appointment of officers, how made; retainer pay, etc. not reduced.] Members of the Naval Reserve Force appointed to commis- sionecl grades shall be commissioned by the President alone, and members of such force appointed to warrant grades shall be warranted by the Secretary of the Navy: Provided, That officers so warranted or commissioned shall not be deprived of the retainer pay, allowances, or gratuities to which they would otherwise be entitled. — (39 Stat., 587, chap. 417.) [1916, Aug. 29. Precedence of officers, Naval Reserve Force.] This provision read as follows: •'Olhcers of the Naval Reserve Force shall rank with but after oflicers of corresponding rank in the Navy." (39 Stat., 587, chap. 417.) It was superseded by act of July 1, 1918 (40 Stat., 711), which contained other provisions on the same subject. [1916, Aug. 29. Term of enrollment; discharge on request.] Enrollment and reenrollment shall be for terms of four years, but members shall in time of peace, when no national emergency exists, be discharged upon their own re- quest upon reimbursing the Government for any clothing gratuity that may have been furnished them during their current enrollment. — (39 Stat., 587, chap 417.) See below (39 Stat., 589), as to refund of uni- form gratuity when discharged without compulsion. Members to be disenroUed at age of 64 years, except in time of war, etc. (Act July 1, 1918, 40 Stat., 711.) See act of June 4, 1920 (41 Stat., 817), as to enrollments for instruction at summer Bchools for boys. [1916, Aug. 29. Oath of allegiance.] Persons enrolling shall be required to take the oath of allegiance to the United States. — (39 Stat., 587, chap. 417.) See act of March 3, 1899, section 25 (30 Stat., 1009). [1916, Aug. 29. Provisional grade on enrollment; instruction prior to confirmation.] When first enrolled members of the Naval Reserve Force, except those in the Fleet Naval Reserve, shall be given a provisional grade, rank or rating in accordance with their qualifications determined by examina- tion. They may thereafter, upon application, be assigned to active service in the Navy for such periods of instruction and training as may enable them to qualify for and be confirmed in such grade, rank or rating. — (39 Stat., 587, chap. 417.) Advancement to higher provisional ranks. — WTien an enrolled member has been given a pro\dsional rank, he may thereafter, either with or without being confirmed in such provisional rank, be given a higher provisional rank without examination by the statutory board of three naval officers of or above the rank of lieutenant commander and the statu- tory board of naval surgeons. Such assign- ment of higher provisional rank is not a "pro- motion' ' within the meaning of the law relating to examinations. (31 Op. Atty. Gen., 173; see below as to examinationa for appointment and promotion.) [1916, Aug. 29. Requirements for confirmation in grade.] No member shall be confirmed in his provisional grade, rank or rating until he shall have 1444 Naval Reserve Force. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. performed the minimum amount of active service required for the class in which he is enrolled, nor until he has duly qualified by examination for such rank or rating under regulations prescribed by the Secretary of the Navy. — (39 Stat., 587, chap 417.) Duty performed in the Naval jVIilitia may be of the Naval Reserve Force. (Act June 4, counted as active service for the main- 1920, 41 Stat., 818.) tenance of efficiency required for members [1916, Aug. 29. Examinations for appointment and promotion; former officers and midshipmen.] No person shall be appointed or commissioned as an officer in any rank in any class of the Naval Keserve Force, or promoted to a higher rank therein, unless he shall have been examined and recommended for such appointment, commission, or promotion by a board of three naval officers not below the rank of lieutenant commander, nor until he shall have been found physically qualified by a board of medical officers to perform the duties required in time of war, except that former officers and midshipmen of the Navy, who shall have left the service under honorable conditions and who shall have enrolled in the Naval Reserve Force, may be appointed in the grade and rank last held by them without examination other than the physical examination above prescribed. — (39 Stat., 587-588, chap. 417.) Promotion of officers below rank of lieutenant- commander shall be in accordance with regulations prescribed by Secretary of the Navj'; above Ueutenant commander, shall be by selection, in time of war. (Act July i, 1918, 40 Stat., 711.) "Appointment" and "promotion" con- strued. — The assignment of a provisional rank is not an 'appointment," and advance- ment to a higher provisional rank is not a "promotion" within the meaning of this paragi-aph. (31 Op. Atty. Gen., 173.) Former oflicer dismissed from Navy; effect of pardon. — An officer of the Navy who has been dismissed by sentence of court- martial, and subsequently pardoned for the offense for which dismissed, is not eligible for reappointment to the Navy or to membership in the Fleet Naval Reserve. (31 Op. Atty. Gen., 225; see below, 39 Stat., 589, as to qualifi- cations for Fleet Naval Reserve; and see note to Constitution, Art. II, sec. 2, clause 1, and note to sec. 1441, Revised Statutes, as to effect of pardon.) [1916, Aug. 29. Retainer pay, before confirmation in grade.] The retainer pay of all members of the Naval Reserve Force, except the Volunteer Naval Reserve, while enrolled in a provisional rank or rating, and until such time as they shall have been confirmed in such rank or rating, shall be $12 per annum. Thereafter, the retainer pay shall be that prescribed for members in the various classes.— (39 Stat., 588, chap. 417.) [1916, Aug. 29. Retainer pay while on active duty.] Retainer pay shall be in addition to any pay to which a member may be entitled by reason of active service. — (39 Stat., 588, chap. 417.) No retainer pay in time of peace while on duty for purposes other than training. (Act July 1, 1918, 40 Stat., 711.) See note to section 1556, Revised Statutes, under "37. Naval Reserve Force," for laws and decisions relating to retainer pay. [1916, Aug. 29. Retainer pay; conditions of payment.] Retainer pay shall only be paid to members of the Naval Reserve Force upon their making such reports concerning their movements and occupations as may be required by the Secretary of the Navy.— (39 Stat., 588, chap. 417.) tions; and see act of June 4, 1920 (41 Stat., 824 and 837), for other provisions relating to forfeiture of retainer pay. See below (39 Stat., 590), as to forfeiture of retainer pay in the Fleet Naval Reserve upon failure to report for required inspec- [1916, Aug. 29. Increased retainer pay on reenrollment.] Members of the Naval Reserve Force who reenroU for a term of four years within four months 1445 Aug. 29, 1916. Pt. 3. STATUTES AT LARGE. Naval Reserve Force. from the date of tlic termination of their last term of enrollment, and who shall have performed the minimum amount of active service required during the preceding term of enrollment, shall, for each such reenrollment, receive an increase of twenty-five per centum of their base retainer pay. — (39 Stat., 588, chap. 417.) No enrolled member to receive retainer pay in excess of amount authorized to members ha\'ing had Ifi years' continuous eer\dce. (Act July 1, 1918, 40 Stat., 710-711.) Service in Kavy, Marine Corps, Naval Militia, etc., counted as continuous service in the Naval Reserve Force for purpose of com- puting retainer pav. (Act July 1, 1918, 40 Stat., 710.) Service in the Naval Reserve, created bv act of March 3, 1915 (38 Stat., 940), credited as service in the Naval Reserve Force in certain cases. (Act of Mar. 4, 1917, 39 Stat., 1174; see note to act Mar. 3, 1915, 38 Stat., 940-941, and note to sec. 1556 R. S., under "37, Naval Reserve Force.") [1916, Aug. 29. Eetirement, enrolled members, 20 years' service.] That enrolled members who shall have completed twenty years of service in the Naval Reserve Force, and who shall have performed the minimum amount of active service required in their class for maintaining efficiency during each term of enrollment, shall, upon their own apphcation, be retired with the rank or rating held by them at the time, and shall receive in lieu of any pay, a cash gratuity equal to the total amoimt of their retainer pay during the last term of their enrollment. — (39 Stat., 588, chap. 417.) No member of the Naval Reserve Force shall be eligible for retirement other than for physi- cal disability incurred in line of duty. (Act July 1, 1918, 40 Stat., 710.) Service in the Na\^-, Marine Corps, National Naval Volunteers, and Naval Militia shall be counted as continuous service in the Naval Reserve Force, both for the purpose of retirement and of computing retainer pay. (Act July 1, 1918, 40 Stat., 710.) All officers of the Naval Reserve Force sliall be eligible for retirement for physical disa- bility in line of duty. (Act June 4, 1920, 41 Stat., 834.) See below (39 Stat., 591), as to retirement in Fleet Naval Reserve. [1916, Aug. 29. Retainer pay, paid annually, etc.] Retainer pay shall be paid annually or at shorter intervals, as the Secretary of the Navy, in his dis- cretion, may direct! — (39 Stat., 588, chap. 417.) See act of June 4, 1920, section 9 (41 Stat., 837), as to withholding retainer pay; see also same act (41 Stat., 824). [1916, Aug. 29. Reservists holding public employment, except in military service.] No existing law shall be construed to prevent any member of the Naval Reserve Force from accepting employment in any branch of the public service, except as an officer or enlisted man in any branch of the military service of the United States or any State thereof, nor from receiving the pay and allowances incident to such employment in addition to .his retainer pay. — (39 Stat., 588, chap. 417.) See act of June 3, 1916, section 74 (99 Stat., 201- 202), as amended by act of June 4, 1920, section 41 (41 Stat.," 781-782), as to quali- fications for appointment as National Guard officers. Members of Naval Reserve Force may become members of naval militia in any State or Territory-, etc. (Act July 11, 1919, 41 Stat., 141.) Until June 30, 1922, certain Naval Militia organizations shall be a part of the Naval Reserve Force. (Act June 4, 1920, 41 Stat., 817.) [1916, Aug. 29. Enrolled members subject to naval laws, etc.] Enrolled members of the Naval Reserve Force shall be subject to the laws, regulations, and orders for the government of the Regular Navy only during such time as 1446 Naval Reserve Force. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. they may by law be required to serve in the Navy, in accordance with their obhgations, and when on active service at then" own request as herein provided, and when employed in authorized travel to and from such active service in the Navy.— (39 Stat., 588, chap. 417.) See provision in act of July 1, 1918 (40 Stat., 712), on this subject; and see below (39 Stat., 591), as to Fleet Naval Reserve. See note to section 1624, Revised Statutes, as to persons amenable to articles for the govern- ment of the Navy, and particularly cases noted under "Naval reservists released from active duty. ' ' [1916, Aug. 29. Badge of Naval Reserve Force; unauthorized wearing of.] Members of the Naval Reserve Force shall be issued a distinctive badge or button which may be worn with civilian dress, and whoever, not being a member of the Naval Reserve Force of the United States and not entitled imder the law to wear the same, willfully wears or uses the badge or button or who uses or wears the same to obtain aid or assistance thereby, shall be punished by a fine of not more than $20 or by imprisonment for not more than thirty days or by both such fine and imprisonment. — (39 Stat., 588, chap. 417.) 1916, section 125 (39 Stat., 216-217), and notes thereto, as to unauthorized wearing of the uniform, etc. See act of July 1, 1918 (40 Stat., 712), as to reservists wearing their uniforms while not in active service; and see act of June 3, [1916, Aug. 29. Active service pay; allowances when not actively em- ployed.] All members of the Naval Reserve Force shall, when actively em- ployed as set forth in this Act, be entitled to the same pay, allowances, gratuities, and other emoluments as officers and enlisted men of the naval service on active duty of corresponding rank or rating and of the same length of service. When not actively employed in the Navy, members of the Naval Reserve Force shall not be entitled to any pay, bounty, gratuity, or pension except as expressly provided for members of the Naval Reserve Force by the provisions of this Act.— (39 Stat., 588, chap. 417.) See act of July 1, 1918 (40 Stat., 712), which See act of June 4, 1920, section 2 (41 Stat., 834), modifies the first sentence of this para- as to retirement of officers of the Naval Re- graph relating to pay, etc., on active duty; serve Force for physical disability, and see note to section 1556, Revised Statutes, vmder "37. Naval Reserve Force." [1916, Aug. 29. Service in time of war, etc.] Enrolled members of the Naval Reserve Force may, in time of war or national emergency, be required to perform active service in the Navy throughout the war or until the national emergency ceases to exist. — (39 Stat., 588-589, chap. 417.) See above (39 Stat., 587), as to active service dming war, etc. Not to perform active duty on shore of a kind ordinarily performed by civilians. (Act July 11, 1919, 41 Stat., 138.) Service afloat, in time of peace, was authorized by act of July 1, 1918. (40 Stat., 711.) [1916, Aug. 29. Uniform gratuity, amount credited; refund on discharge.] Members of the Naval Reserve Force shall, upon first reporting for active service for training during each period of enrollment, be credited with a uniform gratuity of $50 for officers and of $30 for men. Upon reporting for active service in time of war or national emergency the uniform gratuity shall be $150 for officers and $60 for men, or the difference between these amounts and any amounts that may have been credited as a 1447 Aug. 29, 1916. Pt. S. STATUTES AT LARGE. Naval Resei-ve Force. uniform gratuity during the current enrollment: Provided, That should any member of the Naval Reserve Force sever his connection with the service with- out compulsion on part of the Government before the expiration of his term of enrollment, the amount so credited shall be deducted from any money that may be or may become due him. — (39 Stat., 589, chap. 417.) See act of July 1, 1918 (40 Stat., 711), which modified this paragraph as to amount of uniform gratuity allowed members, other than officers; and further provided that no part of the "clothing gratuity" shall be appointments in the Navy in time of war or emergency. See note to section 1556, Re\ised Statutes, under "37. Naval Reserve Force." See above (39 Stat., 587), as to discharge of members on request in time of peace. ) par deducted when members accept temporary [1916, Aug. 29. Reservists to be shipped for service on auxiliary vessels.] Hereafter, in shipping oflicers and men for service on board United States auxiliary vessels, preference shall be given to members of the Naval Reserve Force, and, after two years from the date of approval of this Act, no person shall be shipped for such service who is not a member of the Naval Reserve Force herein provided. — (39 Stat., 589, chap. 417.) [1916, Aug. 29. Transfers between classes of Reserve Force.] Members of the Naval Reserve Force may, upon application, be transferred from one class to another class for which qualified under the provisions of this Act; and may in time of war volunteer for and be assigned to duties prescribed for any class which they may be deemed competent to perform. — (39 Stat., 589, chap. 417.) [1916, Aug. 29. Pennant for merchant vessels commanded by reservists.] The Secretary of the Navy shall prescribe a suitable flag, or pennant, that may be flo-\\Ti as an insignia on private vessels or vessels of the merchant service commanded by officers of the Naval Reserve Force : Provided, That it shall not be flown in lieu of the National ensign. — (39 Stat., 589, chap. 417.) [1916, Aug. 29. Schools of instruction for reservists and applicants.] The Secretary of the Navy is hereby authorized to establish schools or camps of instruction at such times and in such localities as he may deem advisable for the purpose of instructing members and applicants for membership in the Naval Reserve Force. No applicant shall be accepted for instruction unless he agrees to abide by the regulations of the school and pursue the course prescribed by the Secretary of the Navy. Persons who satisfactorily complete the course will be given certificates of qualification for the rank or rating for which duly qual- ified, and may be permitted to enroll in the proper class of the reserve in such rank or rating. — (39 Stat., 589, chap. 417.) FLEET NAVAL RESERVE. [1916, Aug. 29. Membership qualifications, Fleet Naval Reserve.] All former officers of the United States naval service, including midshipmen, who have left that service under honorable conditions, and those citizens of the United States who have been, or may be entitled to be, honorably discharged from the naval service after not less than one four-year term of enlistment or after a term of enlistment during minority, and who shall have enrolled in the Naval Reserve Force shall be eligible for membership in the Fleet Naval Reserve.— (39 Stat., 589, chap. 417.) See above (39 Stat., 587-588), as to eligibility of former officer dismissed from the Navy and subsequently pardoned. 1448 Naval Reserve Force. Ft. 3. STATUTES AT LARGE. Aug. 29, 1916. [1916, Aug. 29. Transfer of enlisted men to Fleet Naval Reserve.] In addi- tion to the enrollments in the Fleet Naval Reserve above provided, the Secretary of the Navy is authorized to transfer to the Fleet Naval Reserve at any time within his discretion any enlisted man of the naval service with twenty or more years' naval service, and any enlisted man, at the expiration of a term of enlist- ment who may be then entitled to an honorable discharge, after sixteen years' naval service: Provided, That such transfers shall only be made upon voluntary application and in the rating in which then serving, and the men so transferred shall be continued in the Fleet Naval Reserve until discharged by competent authority.— (39 Stat., 589-590, chap. 417.) [1916, Aug. 29. Minimum active service, enrolled members, Fleet Naval Reserve.] The Secretary' of the Navy is authorized to assign any member of the Fleet Naval Reserve to active duty for training on board ship, upon the application of such member, but any member who has failed to perform three months' active service with the Navy in any term of enrollment shall, on the next reenrollment, receive retainer pay at the rate of $12 per annum until such time as he shall have completed three months' active service. The three months' active service with the Navy may be taken in one or more periods, at the elec- tion of the member: Provided, That no member shall be entitled to travel allowance unless the period of such active service is for not less than one month, or unless specifically provided for by such regulations as may be prescribed by the Secretary of the Navy. — (39 Stat., 590, chap. 417.) Amendment to this paragraph was made by act of April 25, 1917 (40 Stat., 37), which ex- pressly repealed the words "on board ship " after the word "training" in the first sen- tence of the paragraph as set forth above. By act of June 4, 1920, section 9 (41 Stat., 837), it was provided "that hereafter the mini- mum amount of active service required for the maintenance of the efiiciency of the Fleet Naval Reserve shall be the same as for the Naval Reserve. " (See below, under "Naval Reserve, " as to active service for maintaining efficiency therein.) [1916, Aug. 29. Retainer pay, enrolled men, Fleet Naval Reserve; retire- ment of transferred members.] The retainer pay of the enrolled men of the Fleet Naval Reserve shall be the same as for the enrolled men of the Naval Reserve and shall be computed in like manner: Provided^ That nothing herein shall operate to reduce the retainer pay allowed by existing law to erdisted men who, after sixteen years' or more naval service, are transfeiTed to the Fleet Naval Reserve, nor to deny to such enlisted men their privilege of retirement upon completing thirty years' naval service as now provided by law. — (39 Stat., 590, chap. 417; 40 Stat., 710, chap. 114.) This provision was expressly amended and re- enacted to read as above by act of July 1, 1918 (40 Stat., 710). As to retirement of transferred members, see below (39 Stat., 591) ; as to retirement of enrolled members, see above (39 Stat., 588). See note to section 1556, Revised Statutes, un- der "37. Naval Reserve Force." [1916, Aug. 29. Constructive service; men discharged before expiration of enlistment.] That for all purposes of this act a complete enlistment during minority and any enlistment terminated within three months prior to the expi- ration of the term of enlistment by special order of the Secretary of the Navy shall be considered as four years' service. — (39 Stat., 590, chap. 417.) 1449 Aug. 29, 1916. PL S. STATUTES AT LARGE. Naval Reserve Force. [1916, Aug. 29. Retainer pay, officers, Fleet Naval Reserve.] the retainer pay of "all members" of the Naval Reserve Force, "except officers in the Naval Auxiliary Reserve and transferred members of the Fleet Naval Reserve. " See note to section 1556, Revised Statutes, under "37. Naval Reserve Force." This clause read as follows: "The annual rotainor ]nvy of ofTicera of the Fleet Naval Reserve shall l)e two months' base pay of the corresponding rank in the Navy." (39 Stat., 590, chap. 417.) It was superseded hy act of July 1, 1918 (40 Stat., 710), whicii made other provision as to [1916, Aug. 29. Increased retainer pay on reenrollment.] Reenrollments in the Fleet Naval Reserve shall be for four years. Officers and men em-olling in the Fleet Naval Reserve within four months of the date of the termination of their last naval service or reenroUing wdthin four months of the date of the terminatiom of their last term of enrollment shall receive an increase of twenty- five per centum of their retainer pay for each such enroUment. — (39 Stat., 590, chap. 417.) See above (39 Stat., 588), as to increased re- tainer pay on reenrollment; and see note to section 1556, Revised Statutes, under "37. Naval Reserve Force. " No enrolled member shall receive retainer pay in excess of amount authorized to members ha\dng had 16 years' continuous service. (Act July 1, 1918, 40 Stat., 710-711.) [1916, Aug. 29. Enrolled members reenlisting in the regular naval service.] That men who have enrolled in the Fleet Naval Reserve within four months of the date of their discharge from the regular naval service shall, upon reen- listment in the regular naval service within four months of the date of discharge from the Fleet Naval Reserve, be entitled to the same gratuity and additional pay as if they had reenlisted in the regular naval service within four months of discharge therefrom. — (.39 Stat., 590, chap. 417.) Service in the Navy, Marine Corps, National Naval Volunteers, etc., counted as continu- ous service in the Naval Reserve Force for piu'pose of computing retainer pay, (Act July 1, 1918, 40 Stat., 710.) Active reser\'e service credited to enlisted men and warrant officers of the Navy and Marine Corps for retirement, continuous service pay, and longe\dty pay, in certain cases: See act of July ll,'l919 (41 Stat., 141); see also notes to sections 1569 and 1573, Revised Statutes, as to pay of enlisted men of the Navy; note to section 1556, Re\'ised Stat- utes, as to pay of officers of the Navy and members of the Naval Reserve Force; and note to section 1612, Re\ised Statutes, as to pay of the Marine Corps. [1916, Aug. 29. Retainer pay, transferred members of Fleet Naval Reserve; special increases for heroism and conduct marks.] Members of the Fleet Naval Reserve who have, when transferred to the Fleet Naval Reserve, completed naval service of sixteen or twenty or more years shall be paid a retainer at the rate of one-third and one-half, respectively, of the base pay they were receiving at the close of their last naval service plus all permanent additions thereto: Provided^ That the pay authorized in this paragraph as a retainer shall be in- creased ten per centum for all men who may be credited with extraordinary heroism in the line of duty or whose average marks in conduct for twenty years or more shall not be less than ninety-five per centum of the maximum. — (39 vStat., 590, chap. 417.) See note to section 1556, Revised Statutes, under computed on the base pay they are re- "37. Naval Reserve Force." ceiling when retransf erred to inactive Retainer pay in the cases of certain members, duty, plus the additions or increases Fleet Naval Reserve, on active duty be- authorized by act of August 29, 1916. tween June, 1920, and July, 1922, shall be (Act May 18, 1920, sec. 6, 41 Stat., 603.) [1916, Aug. 29. Retainer pay forfeited for cause.] Any pay which may be due any member of the Fleet Naval Reserve shall be forfeited when so ordered 1450 Naval Reserve Force. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. by the Secretary of the Navy upon the failure, under such conditions as may be prescribed by the Secretary of the Navy, of such man to report for inspec- tion.— (39 Stat., 590, chap. 417.) See above (39 Stat., 588), tinder "Retainer pay; conditions of payment;" and see act of June 4, 1920 (41 Stat., 824 and 837), for other provisions relating to forfeiture of retainer pay. [1916, Aug. 29. Members warranted or commissioned; retainer pay, etc., not reduced.] Members of the Fleet Naval Reserve who have established their qualifications by examination to the satisfaction of the Secretary of the Navy may be given warrants or commissions in the Fleet Naval Reserve in the grades of boatswain, gunner, carpenter, machinist, pharmacist, pay clerk, ensign for deck or engineering duties, or in the lowest grades of the staff corps : Provided further, That those so warranted or commissioned shall not be deprived of the retainer pay, allowances, or gratuities to which they would be otherwise entitled.— (39 Stat., 590-591, chap. 417.) [1916, Aug-. 29. Fleet Naval Reserve, laws governing; discharge and re- tirement ; uniform outfit.] Men transferred to the Fleet Naval Reserve shall be governed by the laws and regulations for the government of the Navy and shall not be discharged from the Naval Reserve Force without their consent, except by sentence of a court-martial. They may, upon their own request, upon completing thirty years' service, including naval and fleet naval reserve service, be placed on the retired list of the Navy with the pay they were then receiving plus the allow^ances to which enlisted men of the same rating are entitled on retirement after thirty years' naval service. They shall be required to keep on hand such part of the uniform-clothing outfit as may be prescribed by the Secretary of the Navy. — (39 Stat., 591, chap. 417.) As to laws and regulations governing enrolled members, see act of July 1, 1918 (40 Stat., 712); as to retirement of enrolled members, see above (39 Stat., 588), under "Retire- ment, enrolled members, 20 years' service." See also above (39 Stat., 590, as amended), as to retirement of transferred members. [1916, Aug. 29. Retired enlisted men; active duty; pay, etc.] The Secre- tary of the Navy is authorized in time of war or when a national emergency exists to call any enlisted man on the retired list into active service for such duty as he may be able to perform. While so employed such enlisted men shall receive the same pay and allowances they were receiving when placed on the retu-ed list.— (39 Stat., 591, chap. 417.) See act of March 3, 1915 (38 Stat., 941), and references thereunder, as to retired enlisted men. NAVAL RESERVE. [1916, Aug. 29. Qualifications for Naval Reserve.] Members of the Naval Reserve Force who have enrolled for general service and are citizens of the United States are eligible for membership in the Naval Reserve. No person shall be enrolled in or transferred to this class unless he estabUshes satisfactory evidence as to his qualifications for duty on board combatant ships of the Navy.— (39 Stat., 591, chap. 417; 40 Stat., 710, chap. 114.) 54641°— 22- -92 1451 Aug. 29, 1916. PL S. STATUTES AT LARGE. Naval Reserve Force. This parap:iaph was expressly amended and The age limits for the several ranks, grades, and reenacted toread aaaboveby actof July 1, ratings on first enrollment in the Naval 1918 (40 Stat., 710). Reserve shall be as prescribed by the Sec- Xo }>erson shall enroll in \\\o. Naval Reserve retary of the Navy. (Act July 1, 1918, Force except for general service. (Act 40 Stat., 710.) June 4, 1920. sec. 2, 41 Stat., 834.) | [1916, Aug. 29. Minimum active service for confirmation.] The minimum active service required of members to qualify for confirmation in their rank or rating in this class shall be three months. — (39 Stat., 591. chap. 417.) [1916, Aug. 29. Minimum service for maintaining efficiency. Naval Eeserve.] This paragraph read as follows: "The minimum active service required for maintaining the efficiency of a member of this class is three months during each term of en- rollment. This active service may be in one period or in periods of not less than three weeks each year." (39 Stat., 591, chap. 417.) It -was superseded by the following pro- vision on the same subject contained in act of Julyl, 1918 (40 Stat., 710): "That the minimum active service required for maintaining the efficiency of a member of the Naval Reserve shall be two months duiing each term of enrollment and an attendance at not less than thirty-six drills during each year, or other equivalent duty. The active service may be in one period or in periods of not less than fifteen days each." [1916, Aug. 29. Retainer pay, Naval Reserve.] This paragraph read as foUo-ws: "The annual retainer pay of members in this class after confirmation in rank or rating shall be two months' base pay of the corre- sponding rank or rating in the Navy." (39 Stat., 591, chap. 417.) It was superseded by other provisions contained in act of July 1, 1918 (40 Stat., 710), relating to the retainer pay of all mem- bers of the Naval Reserve Force "except officers in the Naval Auxiliary Reserve and transferred members of the Fleet Naval Re- serve." See note to section 1556, Revised Statutes, under "37. Naval Reserve Force." NAVAL AUXILIARY RESERVE. [1916, Aug. 29. Qualifications for Naval Auxiliary Reserve.] Members of the Naval Reserve Force of the seagoing profession who shall have been or may be employed on American vessels of the merchant marine of suitable type for use as naval auxiliaries and which shall have been listed as such by tlie I^avy Department for use in war, shall be eligible for membership in the Naval Auxiliary Reserve. — (39 Stat., 591, chap. 417.) No person shall enroll in the Naval Reserve Force except for general ser\T.ce. (Act June 4, 1920, sec. 2, 41 Stat.. 834.) [1916, Aug. 29. Active service in time of war.] In time of war or during the existence of a national emergency, persons in this class shall be required to serve only in vessels of the merchant ship type, except in cases of emergency, to be determined by the senior officer present, when said officer may, in his discretion, detail them for temporary duty elsewhere as the exigencies of the service may require. — (39 Stat., 591, chap. 417.) [1916, Aug. 29. Requirements for confirmation and maintenance of ef- ficiency.] The requu'ement as to qualifications of officers and men for con- firmation in rank or rating, and as to the maintenance of efficiency in rank or rating, shall be prescribed by the Secretary of the Navy and shall be limited to the requirements for the proper organization, discipline, maneuvering, navigation, and operation of vessels of the merchant ship type while per- forming auxiliary service to the fleet in time of war, and length of time of em- ployment on board such vessels in the merchant service. — (39 Stat., 591- 592, chap. 417.) 1452 Naval Reserve Force. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. [1916, Aug. 29. Military command, limitation or exercise of.] Officers in the Naval Auxiliary Reserve shall exercise military command only on board the ships to which they are attached and in the naval auxiliary service. — (39 Stat., 592, chap. 417.) [1916, Aug. 29. Retainer pay, Naval Auxiliary Reserve.] The annual retainer pay of members in this class after confirmation in rank or rating shall be for officers, one month's base pay of the corresponding rank in the Navy, and for men, two montlis' base pay of the corresponding rating in the Navy. — (39 Stat., .592, chap. 417.) So much of this paragraph as relates to re- tainer pay for members, other than officers, in the Naval Auxiliary Reserve, was superseded by act of July 1, 1918 (40 Stat., 710). See note to section 1556, Revised Statutes, under "37. Naval Reserve Force." NAVAL COAST DEFENSE RESERVE. [1916, Aug. 29. Qualifications for Coast Defense Reserve.] IVTembers of the Naval Reserve Force who may be capable of performing special useful service in the Navy or in connection with the Navy in defense of the coast, shall be eligible for membership in the Naval Coast Defense Reserve. — (39 Stat., 592, chap. 417.) [1916, Aug. 29. Character of service for which enrolled.] Persons may enroll in this class for service in connection with the naval defense of tlie coast, such as service with coast-defense vessels, torpedo craft, mining vessels, patrol vessels or as radio operators, in various ranks or ratings corresponding to those of the Navy for which they shall have qualified under regulations prescribed by the Secretary of the Navy. — (39 Stat., 592, chap. 417). No person shall enroll in the Naval Reserve Force except for general service. (Act June 4, 1920, sec. 2, 41 Stat., 834.) Not to perform active duty on shore of a kind ordinarily performed by civilians. ('Act July 11, 1919, 41 Stat., 138.) Not to exercise command except within par- ticular service and for due performance of duty. (Act July 1, 1918, 40 Stat., 711.) [1916, Aug. 29. Owners of power boats; enrollment; contracts for use of boats.] That the Secretary of the Navy may jiermit the enrollment in this class of owners and operators of yachts and motor power boats suitable for naval purposes in the naval defense of the coast; and is hereby authorized to enter into contract with the o^vners of such power boats and other craft suitable for war purposes to take over the same in time of war or national emergency upon payment of a reasonable indenmity. — (39 Stat., 592, chap. 417.) See note above, as to "character of service for which enrolled;" and see act of March 4, 1917 (39 Stat., 1192-1193), as to procure- ment of vessels, etc., in time of war. [1916, Aug. 29. Active service for confirmation and efficiency.] The amount of active service required for confirmation in rank and rating and for main- taining efficiency in rank and rating shall be the same as that required for members of the Naval Reserve. — (39 Stat., 592, chap. 417.) See above (39 Stat., 591), as to active serxdce required for confirmation and maintenance of efficiency in the Naval Reserve. 1453 Ang. 29, 1916. Pt. 3. STATUTES AT LARGE. Naval Reserve Force. [1916, Aug. 29. Retainer pay, Coast Defense Reserve. This paragraph read as follows: "The annual retainer i)ay of members of this class shall be the same as that of members of the Naval Reserve." (39 Stat., 592, chap. 417.) It was superseded by other provisions contained in the act of July 1, 1918 (40 Stat., 710). See note to section 1556, Revised Statutes, under "37. Naval Reserve Force." VOLUNTEER NAVAL RESERVE. [1916, Aug. 29. Qualifications for membership, etc.] The Volunteer Naval Reserve shall be composed of those members of the Naval Reserve Force who are eligible for membership in any one of the other classes of the Naval Reserve Force, and who obligate themselves to serve in the Navy in any one of said classes without retainer pay and imiform gratuity in time of peace. — (39 Stat., 592, chap. 417.) No person shall enroll in the Naval Reserve Force except for general service. (Act June 4, 1920, sec. 2, 41 Stat., 834.) See note to section 1556, Revised Statutes, under "37. Naval Reserve Force." NAVAL RESERVE FLYING CORPS. [1916, Aug. 29. Qualifications for membership, etc.] The Naval Reserve Flying Corps shall be composed of officers and student flyers who have been transferred from the Naval Flj^ing Corps to the Naval Reserve Flying Corps and of enlisted men who shall have been so transferred under the same condi- tions as those provided by law for enlisted men of the Navy transferred to the Fleet Naval Reserve: Provided, That surplus graduates of the aeronautic school may be commissioned as ensigns in the Naval Reserve Flying Corps and pro- moted therein under such regulations as may be prescribed by the President. Members of the Naval Reserve Force skiUed in the flying of aircraft or in their design, buflding, or operation, shall be ehgible for membership in the Naval Reserve Flying Corps. The amount of active service required for confirmation in grade, rank, or rating, and for maintaining efficiency therein, shall be the same as that required for members of the Naval Reserve. The retainer pay of members of the Naval Reserve Flying Corps shall be the same as that of mem- bers of the Naval Reserve.— (39 Stat., 592, chap. 417.) The last sentence of this paragraph, as to re- within their particular department or tainer pay, was superseded by other pro- service for the due performance of their visions on the subject contained in act of duties. (Act July 1, 1918, 40 Stat., 711.) July 1, 1918 (40 Stat., 710). See above (39 Stat., 582-583), relating to the Members not to exercise command, except Naval Fljing Corps. MARINE CORPS RESERVE. [1916, Aug. 29. Established under laws relating to Naval Reserve Force; exceptions.] A United States Marine Corps Reserve, to be a constituent part, of the Marine Corps and in addition to the authorized strength thereof, is hereby established under the same provisions in all respects (except as may be necessary to adapt the said provisions to the Marine Corps) as those providing for the Naval Reserve Force in this Act: Provided, That the Marine Corps Reserve may consist of not more than five classes, corresponding, as near as may be, to the Fleet Naval Reserve, the Naval Reserve, the Naval Coast 1454 Coast Guard. PL 3. STATUTES AT LARGE. Aug. 29, 1916. Defense Reserve, the Volunteer Naval Reserve, and the Naval Reserve Flying Corps, respectively. — (39 Stat., 593, chap. 417.) See above (39 Stat., 587-592) for pro\isions of law relating to Naval Reserve Force. Amendatory statutes. — Only provisions of law contained in the act of August 29, 1916, relating to the Naval Reserve Force, or which are expressly amendatory of that act, are made applicable to the Marine Corps Reserve by this paragraph . Other subsequent enactments ap- ply to the Marine Corps Reserve only where specifically named therein. (File 26253-737, Oct. 16, 1919.) [1916, Aug. 29. Old Naval Reserve law repealed in part.] All Acts or parts of Acts relating to the Naval Reserve which are inconsistent with the provisions of this Act relating to the Naval Reserve Force are hereby repealed. — (39 Stat., 593, chap. 417.) See act of ]\Iarch 3, 1915 (38 Stat., 940-941), and note thereto, relating to the Naval Reserve. [1916, Aug. 29. Retainer pay; appropriations to which chargeable.] The retainer pay and active service pay of members of the Naval Reserve Force shall be paid from the appropriation ''Pay — the Navy," and the retainer pay and active service pay of the IVIarine Corps Reserve shall be paid from the appropriation ''Pay, IVIarine Corps." — (39 Stat., 593, chap. 417.) [1916, Aug. 29. Naval Militia and National Naval Volunteers. Repealed.] various classes of the Naval Reserve Force and Marine Corps Reserve. Some legislation re- lating to the Naval Militia was partially revived until June 30, 1922, by act of June 4, 1920 (41 Stat., 817). The provisions of the act of August 29, 1916 (39 Stat., 593-600), and all other laws relating to the Naval Militia and the National Naval Volunteers, were repealed by act of July 1, 1918 (40 Stat., 708), which authorized the transfer of members of the latter organization to the [1916, Aug. 29. Sale of fuel to Volunteer Patrol Squadrons.] That the Secretaiy of the Navy is hereby authorized to sell at cost and issue lubricating oil and gasoline to vessels of the Volunteer Patrol Squadrons duly enrolled in the several naval districts; and that during maneuvers or practice drills when any vessels of said Patrol Boat Squadrons shall be acting singly or as squadrons imder the direct command or control of an officer or officers of the United States Navy, gasolme fuel shall be supplied to them free of charge. — (39 Stat., 600, chap. 417.) Amendment to this paragraph was made by for the word "fuel"; and struck out the act of March 4, 1917 (39 Stat., 1172), which word "gasoline " where it occurs the second struck out the word "gasoline" where it time in said paragraph, first appears therein, and substituted there- [1916, Aug. 29. Coast Guard, laws to which subject.] Whenever, in time of war, the Coast Guard operates as a part of the Navy in accordance with law, the personnel of that service shall be subject to the laws prescribed for the government of the Navy: Provided, That in the initiation, prosecution, and completion of disciplinary action, including remission and mitigation of punish- ments for any offense committed by any officer or enlisted man of the Coast Guard, the jm-isdiction shall hereafter depend upon and be in accordance with the laws and regulations of the department having jurisdiction of the person of such offender at the various stages of such action: Provided further, That any punishment imposed and executed in accordance with the provisions of this section shall not exceed that to which the offender was liable at the time of the commission of his offense. — (39 Stat., 600, chap. 417.) See acts of January 28, 1915 (38 Stat., 800), and October 6, 1917 (40 Stat., 393). 1455 Aug. 29, 1916. PL S. STATUTES AT LARGE. Lighthouse Service. [1916, Aug. 29. Expenses of Coast Guard when serving with the Navy.] IIiToafter whenever, in uceonlancc with hiw, the expenses of the Coast Guard are paid by the Navy Department, any naval appropriations from which pay- ments arc so made shall be reimbursed from available appropriations made by Congress for the expenses of the Coast Guard. — (39 Stat., 600, chap. 417.) See section 2757, Revised Statutes, and act of January 28, 1915 (38 Stat., 800). [1916, Aug. 29. Precedence between officers of Navy and Coast Guard.] Wlienever the personnel of tlie Coast Guard, or any part thereof, is operating with the personnel of the Navy in accordance with law, precedence between commissioned officers of corresponding grades in the two services shall be determined by the date of commissions in those grades. — (39 Stat., 600, chap. 417.) See note to section 1492, Revised Statutes. [1916, Aug. 29. Coast Guard personnel, duties; maintenance of stations.] Any commissioned or warrant officer, petty officer, or other enlisted man in the Coast Guard may be assigned to any duty which may be necessary for the proper conduct of the Coast Guard; and the Secretary of the Treasury in time of peace and the Secretary of the Navy in time of war may, in his discretion, man any Coast Guard station during the entire year, or any portion thereof, maintain any house of refuge as a Coast Guard station, and change, establish, and fix the lim its of Coast Guard districts and divisions. — (39 Stat., 600, chap. 417.) See act of January 28, 1915 (38 Stat., 800). [1916, Aug. 29. Instruction of Coast Guard at Navy schools.] At the request of the Secretary of the Treasury the Secretaries of War and Navy are author- ized to receive officers and enlisted men of the Coast Guard for instruction in aviation at any aviation school maintained by the Army and Navy, and such ofiicers and enlisted men shall be subject to the regulations governing such schools.— (39 Stat., 601, chap. 417.) [1916, Aug. 29. Lighthouse Service, status and duties in war.] The President is hereby authorized, whenever in his judgment a sufficient national emergency exists, to transfer to the service and jurisdiction of the Navy Department, or of the War Department, such vessels, equipment, stations, and personnel of the Lighthouse Service as he may deem to the best interest of the country, and after such transfer all expenses connected therewith shall be defrayed out of the appropriations for the department to which transfer is made: Provided, That such vessels, equipment, stations, and persomiel shall be returned to the Lighthouse Service when such national emergency ceases in the opinion of the l^resident, and nothuig in this Act shall be construed as transferrmg the Light- house Service or any of its functions from the Department of Commerce except in time of national emergency and to the extent herein provided: Provided further, That any of the persomiel of the Lighthouse Service who may be transferred as herein provided shall, while under the jurisdiction of the Navy Department or War Department, be subject to the laws, regulations, and orders for the government of the Navy or Army, as the case may be, in so far as the same may be applicable to persons whose retention permanently in the military service of the United States is not contemplated by law; 1456 Naval Academy. Pt. 3. STATUTES AT LARGE. Aug. 29, 1916. The Secretary of the Navy, the Secretary of War, and the Secretary of Commerce shall jointly prescribe regulations governing the duties to be per- formed by the Lighthouse Service in time of war, and for the cooperation of that service with the Navy and War Departments in time of peace in preparation for its duties in war, and this may include arrangements for a direct Ime of com- munication between the officers or bureaus of the Navy and War Departments and the Bureau of Lighthouses to provide for immediate action on all com- munications from these departments. — (39 Stat., 602, chap. 417.) See act of October 6, 1917 (40 Stat., 393). [1916, Aug. 29. Eepairs and changes to capital ships.] The statutory limit of $200,000 for repairs and changes to capital ships of the Navy, as pro- vided in the Act making appropriations for the naval service for the fiscal year ending June thhtieth, nineteen hundred and eight, approved March second, nineteen hundred and seven, is hereby changed to S300,000. — (39 Stat., 605, chap. 417.) See note to section 1538, Re^'ised Statutes. [1916, Aug. 29. Sale of unserviceable vessels.] The Secretary of the Navy is hereby authorized to sell any or all of the auxiliary ships of the Navy classified as coUiers, transports, tenders, supply ships, special types, and hospital ships, wliich are eighteen years and over in age, which he deems unsuited to present needs of the Navy and which can be disposed of at an advantageous price, which shall not be less than fifty per centum of their original cost, the money obtained from such sale to be covered into the Treasury as miscella- neous receipts. — (39 Stat., 605, chap. 417.) See section 1541, Revised Statutes, and note thereto. [1916, Aug. 29. Transfer of lands to jurisdiction of Navy Department.] That such land of the United States under the control of a particular depart- ment or other branch of the Government that has been or may hereafter be mutually selected as a site for a naval radio station may, by direction of the President, be transferred to and placed under the control and jurisdiction of the Navy Department for use as a naval radio station or other naval purposes.- (39 Stat., 606, chap. 417.) See section 418, Revised Statutes, and note thereto. [1916, Aug. 29. Employment of professors, Naval Academy.] That the Secretary of the Navy is authorized to employ at the Naval Academy such number of professors and instructors, including one professor as librarian, as, in his opinion, may be necessary for the proper instruction of the midshipmen; and that professors and instructors so employed shall receive such compensa- tion for their services as may be prescribed by the Secretary of the Navy: Provided further, That the total amount so paid shall not exceed $175,000 annually: And provided further, That the Secretary of the Navy shall report to Congress each year the number of professors and instructors so employed and the amount of compensation prescribed for each. — (39 Stat., 607, chap. 417.) See note to section 1528, Revised Statutes; and see act of May 18, 1920, section 7 (41 Stat., 603). 1457 Aug. 29, 1916. Pt. 3. STATUTES AT LARGE. Marine Corps. [1916, Aug. 29. Board of Visitors, Naval Academy.] From and after the passage of this Act there shall be appointed every year, in the following manner, a Board of Visitors, to visit the academy, the date of the annual visit of the board aforesaid to be fixed by the Secretary of the Navy: Seven persons shall be appointed by the President and four Senators and five Members of the House of Kepresentatives shall be designated as visitors by the Vice President or President pro tempore of the Senate and the Speaker of the House of Repre- sentatives, respectively, in the month of January of each year. The chairman of the Committee on Naval Affairs of the Senate and chairman of the Com- mittee on Naval Affairs of the House of Representatives shall be ex officio members of said board. Each member of said board shall receive while engaged upon duties as a member of the board not to exceed $5 a day and actual expenses of travel by the shortest mail routes. — (39 Stat., 608, chap. 417.) See sections 1511-1528, Revised Statutes, act of August 4, 1886 (24 Stat., 268), as to relating to the Naval Academy; and see expenses of Board of Visitors. [1916, Aug. 29. Marine Corps, number of officers; distribution in ranks.] Hereafter the total number of commissioned officers of the active list of the line and staff of the IVIarine Corps, exclusive of officers borne on the Navy list as additional numbers, shall be four per centum of the total authorized enlisted strength of the active list of the Marine Corps, exclusive of the Marine Band, and of men under sentence of discharge by coiu't-martial, distributed in the proportion of one officer with rank senior to colonel to four with the rank of colonel, to five with the rank of lieutenant colonel, to fourteen with the rank of major, to thirty-seven with the rank of captain, to thirty-one with the rank of first lieutenant, to thirty-one with the rank of second lieutenant. — (39 Stat., 609, chap. 417.) number of officers in each gi-ade and rank therein by taking the nearest whole number in the case of a final fraction. Under such circumstances, the provision fixing the total number of officers on the active list is controlling, and the result is to increase the number allowed in the grade of second lieutenant by one officer in the present instance, in order that the total number may be fully distributed. This increase must be placed in the giade of second lieutenant, and can not be placed in any higher giade. (File 28687-5, Nov. 20, 1916.) Distribution of actual number of officers when less than authorized number. — This paragraph provides for the distribution of the authorized number of officers, and is mandatory, when the MarineCorps has its full number of com- missioned officers, as to the proportion in which such officers shall be distributed in the various ranks; but where the actual number of commis- sioned officers is less than the authorized num- ber, it is within the discretion of the Secretary of the Navy to place the shortage in the higher or lower ranks, or to distribute same between the various ranks, as he deems expedient. (File 28687-5:1, Apr. 11, 1917.) The act of August 29, 1916 (39 Stat., 576), requires that the actual number of commis- sioned officers in the Navy shall be distributed in the various grades and ranks in certain pro- See section 1596, Revised Statutes, and note thereto. Additional nmnbers. — This paragraph, in 80 far as it deals with distribution of commis- sioned officers in the various grades and ranks of the Marine Corps, refers only to officers who are regular numbers in grade, and not to officers who, for any reason are, or may become, addi- tional numbers. Accordingly, in all computa- tions having to do with the distribution of officers in the various ranks and giades, addi- tional number officers are to be excluded fi-om consideration. (File 28687-1, Aug. 18, 1916.) See below as to additional nmnber officers promoted to brigadier general. Computations, final fractions. — The clause in this act (39 Stat., 577), relating to the disposi- tion of final fractions which occur in computing the authorized number of any corps, gi'ade, or rank in thf^ naval s('r\'ice, applies to the Marine Corps, and accordingly "the nearest whole number shall be regarded as the authorized number" of marine officers in the cases men- tioned in that clause. (File 28687-5, Aug. 29 and Nov. 20, 1916. See below, 39 Stat., 610, as to proportionate ratio of staff officers.) There is a conffict between the provisions of the law fixing the total number of commissioned officers on the active list of the Marine Corps, and prescribing a method of determining the 1458 Marine Corps. PL 3. STATUTES AT LARGE. Aug. 29, 1916. portions and in accordance with computations to be made by the Secretaiy of the Navy; but as to the Marine Corps, when the actual number is less than the authorized number, the distri- bution of the shortage is a matter in the discre- tion of the Secretary of the Navy. In the exercise of this discretion, the Secretary' decides that the actual number of commissioned officers in the Marine Corps shall be distributed between the various ranks in the same propor- tion pro\'ided by said act of August 29, 1916, with reference to the distribution of the author- ized number, thus establishing a uniform rule in this respect for the Na^•y and Marine Corps. Under this ruling, only commissioned officers actually in the regular 8er\-ice may be counted; and no officer is actually in the service imtil he has accepted his appointment. Computations should be based on definite information as to the actual number of officers in the ser\ice on a given date, counting changes due to new appointments, casualties, etc. (File 28687-5:1, Sept. 7, 1917; see also file 28687-6:5, Aug. 19, 1918.) Total authorized enlisted strength. — See note to section 1596, Revised Statutes. [1916, Aug. 29. Brigadier generals; additional numbers; filling vacancies,] That brigadier generals shall be appointed from officers of the Marine Corps senior in rank to lieutenant colonel: Provided further, That the promotion to the grade of brigadier general of any officer now or hereafter carried as an additional nmnber in the grade or with the rank of colonel shall be held to fill a vacancy in the grade of brigadier general. — (39 Stat., 609, chap. 417.) Promotion of additional number colo- nel. — Any officer carried as an additional number in the grade of colonel will, if promoted to the grade of brigadier general, immediately become a regular nimil^er in the latter grade, and will continue to be carried as a regiilar number therein, unless by operation of some other law applicable to his specific case his status should revert to that of an additional number in gi"ade. (File 28687-1, Aug. 18, 1916.) A colonel carried as an additional number by xirtue of section 1605, Re\-ised Statutes, as amended by act of June 16, 1906 (34 Stat., 296 ), would cease to be an additional number upon promotion to the gi-ade of brigadier general. (File 28687-1, Aug. 18, 1916.) A colonel, serving as Major General Com- mandant of the Marine Corps imder the act of December 19, 1913 (38 Stat., 201), would con- tinue to be an additional number while so serv- ing, although in the meantime promoted to the gi-ade of brigadier general. (File 28687-1, Aug. 18, 1916. See note to sec. 1601, R. S.) If a colonel should be appointed to an exist- ing vacancy in the position of Major General Commandant at the time when the grade of brigadier general was full, although said colonel would thereupon become an additional number in the grade of colonel, nevertheless he could not under the law be promoted to the grade of brigadier general unless a vacancy occurred therein. Should a former Major General Com- mandant be in the gi-ade of brigadier general as an additional number, a vacancy thereafter [1916, Aug. 29. Major General Commandant counted as senior to colonel.] That in determining the officers with rank senior to colonel there shall be in- cluded the officer serving as major general commandant. — (39 Stat., 609, chap. 417.) occurring would be immediately fiUed, by operation of law, by the additional number brigadier general becoming a regular number in that gi-ade. If thereafter another vacancy should occur in the grade of brigadier general, the additional number colonel 8er\ing as Major General Commandant might legally be promoted thereto, but he would become an additional number brigadier general under the act of December 19, 1913, and a vacancy would stiU exist to which a regiilar niunber colonel could be promoted. (File 28687-1, Aug. 18, 1916.) Date of rank on promotion. — The date of rank given officers of the Marine Corps on pro- motion should ordinarily be the date of the vacancy to which promoted; but in no case will an officer permanently or temporarily promoted be given rank fi'om a date earlier than his date of rank in the lower grade. (File 28687-5:1, Sept. 7, 1917. See note to sec. 1458, R. S.) Vacancies resulting from the President's order of March 26, 1917, increasing the author- ized numl)er of enUsted men in the Marine Corps, as authorized by this act (39 Stat., 612), were created on the date of said order; and vacancies resulting from the temporary increase of enlisted men authorized by act of May 22, 1917, were created on the date of said act. (File 28687-5:1, Sept. 7, 1917.) Rank of brigadier generals and rear admirals. — See note to section 1466, Re\ised Statutes. See below as to appointment of Major General Commandant from rank of colonel; and see above, as to promotion of additional number colonel; see also note to section 1601, Revised Statutes. This provision has the effect of making the Major General Commandant one of the authorized number of officers above the rank of colonel, as though the law read, that there shall be one major general commandant, and so many brigadier generals, etc. (File 28687-1, Aug. 18, 1916.) 1459 Aug. 29, 1916, rt. S. .STATUTES AT LARGE. Marine Corps. [1916, Aug. 29. Appointment as Major General Commandant.] That appouitmonts horoaftcr made to the position of major general commandant under the provisions of the Act approved December nineteenth, nuieteen hundred and thirteen, entitled "An Act to make the tenure of office of the major general commandant of the Marine Corps for a term of four years," shall be made from oflicers of the active list of the Marme Corps not below the rank of colonel.— (39 Stat., 609, chap. 417.) Should the authorized num])er of officers senior to colonel be full, this could not operate to restrict the President 's discretion by requiring him to appoint another brigadier general to fill the vacancy and preventing him from appointing a colonel should he desire to do so. (File 28687-1, Aug. 18, 1916.) See act of December 19, 1913 (38 Stat., 241), aud note to section 1601, Revised Statutes. Appointment from rank of colonel. — This provision expressly confers upon the President full discretion to fdl a vacancy in the position of Major General Commandant from officers of the rank of colonel as well as from those having the rank of brigadier general. [1916, Aug. 29. Kank of senior staff officers; counted as colonels.] That the olhcers serving in the senior grade of the Adjutant and Inspector's, Quarter- master's, and Paymaster's Departments shall, while serving therein, have the rank, pay, and allowances of a brigadier general: And provided further, That for the piu"pose of determining the number of officers in the various ranks as herein provided such staff officers shall be counted as being of the rank of colonel.— (39 Stat., 609-610, chap. 417.) See note to section 1602, Revised Statutes. [1916, Aug. 29. Permanent staff officers not eligible for line promotion.] That officers holding permanent appointments in the staff departments shall not be eligible for appointment to the grade of brigadier general of the line as hereinbefore provided. — (39 Stat., 610, chap. 417.) [1916, Aug. 29. Organization of staff departments; number of officers; filling vacancies.] The total commissioned personnel of the active list of the staff departments, whether serving therein under permanent appointments or under temporary detail, as herein provided, shall be eight per centum of the authorized commissioned strength of the IVIarine Corps, and of this total one- fiftli shall constitute the adjutant and inspector's department, one-fifth the paymaster's department, and tliree-fifths the quartermaster's department. No further permanent appointments shall be made in any grade in any staff department. Any vacancy hereafter occurring in the lower grade of any staff department shall be filled by the detail of an officer of the line for a period of four years unless sooner relieved; any vacancy hereafter occurring in the upper grade of any staff department shall be filled by the appointment of an officer with the rank of colonel holding a permanent appointment in the staff depart- ment in which the vacancy exists, or of some other officer holding a permanent appointment in such staff department in case there be no permanent staff officer with the rank of colonel in that department, or of a colonel of the line in case there be no officer holding a permanent appointment in such staff department. Such appointments shall be made by the President and be for a term of four years, and the officer so appointed shall be recommissioned in the grade to which appointed. — (39 Stat., 610, chap. 417.) 1460 Marine Corps. Pt. S. STATUTES AT LARGE. Aug. 29, 1916. See note to section 1598, Revised Statutes. Computations in staff departments. — The provision of this act (39 Stat., 577) relating to the disposition of final fractions does not in terms apply to the distribution of the authorized number of officers between the three staff de- partments. The total number in the three departments should be 8 per centum of the authorized commissioned strength of the Marine Corps, exclusive of additional niunbers. WTiere counting the nearest whole number in cases of final fi-actions in computing the number for each department would increase the author- ized number for the three departments by one, and disregarding such fractions would leave a shortage of two officers in the three departments, held, that the final fi-actions will be disregarded and the two officers remaining will be distri- buted between the three departments by the Secretary of the Naw, upon recommendation of the Slajor General Commandant, in such manner as mav be to the best interest of efficient administration. (File 28687-5, Nov. 20, 1916.) [1916, Aug. 29. Permanent staff officers reappointed in the line.] This paragraph read as follows: "That prior to June thirtieth, nineteen hun- dred and eighteen, an officer holding a perma- nent appointment in any staff department may, upon his own application, with the ap- proval of the President, be reappointed in the line of the Marine Corps in the grade and with the rank he would hold on the date of his reap- pointment if he had remained continuously in the Une: Provided, That no officer holding a permanent appointment in any staff depart- ment shall be recommissioned in the line with the rank of colonel or lieutenant colonel: Pro- vided further, That such staff officer shall, before being reappointed in the line of the Marine Corps as above pro^dded, perform line duties for one year, at the expiration of which time he shall as a prerequisite to reappointment in the line be required to establish to the satis- faction of an examining board consisting of line officers of the Marine Corps his physical, mental, and professional fitness for the per- formance of line duty." (39 Stat., 610, chap. 417.') It expired by its terms on June 30, 1918, and is no longeer in force. [1916, Aug. 29. Common promotion list, Marine Corps.] That for the purpose of advancement in rank to and including the grade of colonel, all com- missioned officers of the line and staff of the IVIarine Corps shall be placed on a common list in the order of seniority each would hold had he remained con- tinuously in the line. All advancements in rank to captain, major, lieutenant colonel, and colonel shall, subject to the usual examinations, be made from officers with the next junior respective rank, whether of the line or staff, in the order in which their names appear on said list. — (39 Stat., 610, chap. 417.) See note to section 1599, Revised Statutes, under "Laws relating to promotion construed." [1916, Aug. 29. Second lieutenants, qualifications; age; examination; former officers ; probation ; midshipmen failing to graduate.] Appointees to the grade of second lieutenant, if appointed from civil life, shall be between the ages of twenty and twenty-five years, and before receiving a commission in the IVlarine Corps, each appointee shall establish to the satisfaction of the Secretary of the Navy his mental, physical, moral, and professional qualifications for such commission: Provided, The President of the United States be, and hereby is, authorized, by and with the advice and consent of the Senate, to appoint as second lieutenants on the active list in the United States Marine Corps, to take rank at the foot of the list of second lieutenants as it stands at the date of rein- statement, former officers of the Marine Corps who resigned from the naval service in good standing: Provided, That they shall establish their moral, physical, mental, and professional qualifications to perform the duties of that grade to the satisfaction of the Secretary of the Navy: Provided further. That the Secretary of the Navy, in his discretion, may waive the age limit in favor of the aforesaid former officers of the Marine Corps: Provided further, That the prior services of such officers and the service after reinstatement shall be not less than thirty years before the age of retirement. That appointments from noncommissioned officers of the Marine Corps and from civil life shall be for a probationary period of two years and may be revoked at any time during that 1461 Aug. 29, 1916. rt. S. STATUTES AT LARGE. Marine Corps. period by the Secretary of the Navy: Provided further , That the rank of such officers of the same date of appointment among themselves at the end of said probationary period sliall, with the approval of the Secretary of the Navy, be determined by the report of a board of Marine officers who shall conduct a competitive professional examination under such rules as may be prescribed by the Secretary of the Navy and the rank of such officers so determined shall be as of date of original appointment with reference to other appointments to the Marine Corps: Provided further, That no midshipman at the United States Naval Academy or cadet at the United States Military Academy who fails to graduate therefrom sliall be eligible for appointment as a commissioned officer in the Marine Corps until after the graduation of the class of which he was a member.— (39 Stat., 610-611, chap. 417.) Probationary second lieutenants could be given probationary appointments in higher grades 'during the continuance of the present war,' ' under the act of May 22, 1917, section 10 (40 Stat., 87). See note to section 1599, Re\'ised Statutes. Vacajicies required. — Where the number of officers allowed a given grade, as in the case of second lieut"nants, is fixed by law, such number can not be exceeded. Accordingly, bationary appointments does not apply to former officers of the Marine Corps who are reinstated as second lieutenants after they have established, by examination, their ex- isting qualifications to perform the duties of that grade. (File 13261-544:1, Oct. 10, 1916.) It is significant that the law requires ci\ilians to establish their qualifications for a ' 'commis- sion" in the Marine Corps; while it requires former officers to establish their qualifications for the ' 'duties " of the grade to which appointed (File 13261-544: 1, Oct. 10, 1916.) Promotion of probationary oflB.cer. — The earliest date of commission in the gi'ade of captain which may be assigned a probationary officer of the Marine Corps is the date on which he completed his probationary period. (File 29226-6:4, Apr. 28, 1921.) midshipmen graduating from the Naval Acad- emy can not be commissioned as second lieu- tenants in excess of the number in that grade fixed by law, even though the result would overfill the grade at most only for a period of a few days. (File 13261-486, June 8, 1916, citing 23 Op. Attv. Gen., 30, 35; file 26521-67, June 4, 1913; 26521-67:1, Dec. 4,_ 1913.) Former oflS.cers. — The provision for pro- [1916, Aug. 29. Warrant officers, Marine Corps.] That the warrant grades of marine gunner and c{uartermaster clerk are hereby established, and the appointment as herein prescribed of twenty marine gunners and twenty quarter- master clerks is hereby authorized. Officers in those grades shall have the rank and receive the pay, allowances and privileges of retirement of warrant officers in the Navy. They shall be appointed from the noncommissioned officers of the Marine Corps and clerks to quartermasters now serving as such and who have performed field service.— (39 Stat., 611, chap. 417.) By act of May 22, 1917, section 11 (40 Stat., 87), the appointment was authorized of 30 marine gunners and 30 quartermaster's clerks, additional to the number prescribed by this paragraph. act of June 4, 1920 (41 Stat., 830), the authorized number of warrant officers in the Marine Corps was increased by not exceeding 50, to provide for the appoint- ment of certain officers who held tempo- rary commissions during the war. By See notes to sections 1405, 1487, and 1566, Revised Statutes, as to pay and allowances, etc., of warrant officers in the Navy; see also act of March 4, 1917 (39 Stat., 1188), as to foreign shore service pay of warrant officers in the Marine Corps; and see act of July 11, 1919 (41 Stat., 141), as to warrant officers who served as commissioned officers in the Marine Corps Reserve, and note to section 1612, Revised Statutes. [1916, Aug. 29. Retirement of colonels as brigadier generals.] This paragraph reads as follows: "That officers of the Marine Corps with the rank of colonel who shall have served faithfully for forty-five years on the active list shall, when retired^ have the rank of brigadier general; and such officers who shall hereafter be retired at the age of sixty-four years before having served for forty-five years, but who shall have served faithfully on the active list until retired, shall, on the completion of forty years fi'om their entry in the naval service, have the rank of brigadier general." (39 Stat., 611, chap. 417.) It was expressly repealed by act of May 22, 1917, section 14 (40 Stat., 87). See section 1481, Revised Statutes, for some- what similar provision relating to staff officers of the Navy. 1462 Marine Corps. Pt.3. STATUTES AT LARGE. Aug. 29, 1916. [1916, Aug. 29. Marine Corps, examinations for promotion.] The provisions of sections fourteen hundred and ninety-three and fourteen hundred and ninety- four of the Revised Statutes of the United States shall apply to the Marine Corps.— (39 Stat., 611, chap. 417.) See sections 1493-1494, and note to section 1599, Revised Statutes. [1916, Aug. 29. Officers failing in examination for promotion.] In lieu of suspension from promotion of any officer of the Marine Corps who hereafter fails to pass a satisfactory professional examination for promotion, or who is now under suspension from promotion by reason of such failure, such officer shall suffer loss of numbers, upon approval of the recommendation of the examining board, in the respective ranks, as follows: Lieutenant colonel, one; major, two; captain, three; first lieutenant, five; second lieutenant, eight: Provided, That any such officer shall be reexamined as soon as may be expedient after the expiration of sLx months if he in the meantime again becomes due for promotion, and if he does not in the meantime again become due for promotion he shall be reexamined at such time anterior to again becoming due for promo- tion as may be for the best interests of the service: Provided further, That if any such officer fails to pass a satisfactory professional reexamination he shall be honorably discharged with one year's pay from the Marine Corps. — (39 Stat., 611-612, chap. 417.) See note to section 1599, Revised Statutes; and [ note thereto, for law relating to the Navy see section 1505, Revised Statutes, and | on the same subject. [1916, Aug. 29. Authorized enlisted strength. Marine Corps.] Hereafter the number of enlisted men of the Marine Corps shall be exclusive of those sen- tenced by court-martial to discharge. * * * The President is authorized, when, in his judgment, it becomes necessary to place the country in a complete state of preparedness, to further increase the enlisted strength of the Marine Corps to seventeen thousand four hundred: And provided. That the distribution in the various grades shall be in the same proportion as that authorized at the time when the President avails himself of the authority herein granted. — (39 Stat., 612, chap. 417.) See note to section 1590, Revised Statutes, as to the number and grades of enlisted men in the Marine Corps. [1916, Aug. 29. Marine Band; organization and pay; competition with civilians restricted.] That the band of the United States Marine Corps shall consist of one leader, whose pay and allowances shall be those of a captain in the Marine Corps; one second leader, whose pay shall be $150 per month and who shall have the allowances of a sergeant major; ten principal musicians, whose pay shall be $125 per month; twenty-five first-class musicians, whose pay shall be $100 per month; twenty second-class musicians, whose pay shall be $85 per month; and ten third-class musicians, whose pay shall be $70 per month; such musicians of the band to have the allowances of a sergeant and to have no increase in the rates of pay on account of length of service: Pro- vided, That a member of the said band shall not, as an individual, furnish music or accept an engagement to furnish music, when such furnishing of music places him in competition with any civilian musician or musicians, and shall 1463 Aug. 29, 1916. Pt. S. STATUTES AT LARGE. not accept or receive remuneration for furnishing music except under special circumstances when authorized by the President. — (39 Stat., 612, chap. 417.) (39 Stat., 188), for other restrictions upon enlisted men competing with civilians. See notes to sections 1596 and 1613, Revised Statutes; and see actvS of May 13, 1908 (35 Stat., 153), and June 3, 1916, section 35 [1916, Aug. 29. Sales to oflScers, etc., of subsistence stores.] Provisions, ]VLvRiNE Corps: * * * That hereafter so much of this appropriation as may be necessary may be applied for the purchase, for sale to officers, enlisted men, and civilian employees, of such articles of subsistence stores as may from time to time be designated and under such regulations as may be prescribed by the Secretary of the Navy.— (39 Stat., 613, chap. 417.) See act of March 4, 1913 (37 Stat., 909), and note thereto. [1916, Aug. 29. Marine Corps training camps.] The Secretary of the Navy is hereby authorized to establish and maintain at such places as he may designate, and prescribe regulations for the government thereof, Marine Corps training camps for the instruction of citizens of the United States who make application and are designated for such training; no such camps to be in exist- ence for a period longer than six weeks in each fiscal year, except in time of actual or threatened war; to use Marine Corps and such other Government property as he may deem necessary for the military training of such citizens while in attendance at such camps. The Quartermaster's Department, United States Marine Corps, is authorized to sell such articles of uniform clothing as may be prescribed at cost price to the volunteer citizens who are designated to participate in these instructions: Provided, That these citizens shall be required to furnish at their own expense transportation and subsistence to and from these camps, and subsistence while undergoing training therein. — (39 Stat., 614, chap. 417.) [1916, Aug. 29. Navy yard employees; leaves of absence.] That each and every employee of the navy yards, gun factories, naval stations, and arsenals of the United States Government is hereby granted thirty days' leave of absence each year, without forfeiture of pay during such leave : Provided further, That it shall be lawful to allow pro rata leave only to those serving twelve consecutive months or more : And provided further. That in all cases the heads of divisions shall have discretion as to the time when the leave can best be allowed: And provided further, That not more than thirty days' leave with pay shall be allowed any such employee in one year: Provided further, That this provision shall not be construed to deprive employees of any sick leave or legal holidays to which they may now be entitled under existing law. — (39 Stat., 617-618, chap. 417.) See note to section 1545, Revised Statutes. [1916, Aug. 29. Government employees serving in National Guard and Medical Reserve Corps.] That all officers and enlisted men of the National Guard and of the Medical Reserve Corps of the Army who are Government employees and who respond to the call of the President for service shall, at the expiration of the military service to which they are called, be restored to the positions occupied by them at the time of the call. — (39 Stat., 624, chap. 418.) See note to section 416, Revised Statutes under ' ' Honorably discharged soldiers or sailors " ; and see act of June 3, 1916, section 80 (39 1464 Stat., 203), as to leaves of absence allowed Government employees who are members of the National Guard. PL S. STATUTES AT LARGE. Aug. 29, 1916. [1916, Aug. 29. Sales of Army, Navy, and Marine Corps subsistence sup- plies.] That hereafter the officers and enlisted men of the Navy and the Marine Corps shall be permitted to purchase subsistence suppUes at the same price as is charged the officers and the enlisted men of the Army; and the officers and the enlisted men of the Army shall be permitted to purchase subsistence supplies from the Navy and Marine Corps at the same price as is charged the officers and the enlisted men of the Navy and Marine Corps. — (39 Stat., 6.30, chap. 418.) [1916, Aug. 29. Transportation of troops, etc., in time of war.] The President, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be neces- sary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emer- gency as may be needful or desirable. — -(39 Stat., 645, chap. 418.) See act of February 4, 1887, section 6 (24 Stat., 380), as amended by act of August 29, 1916 (39 Stat., 604, chap. 417). [1916, Aug. 29. Director of Civilian Marksmanship.] That the President be, and he is hereby, authorized, in his discretion, to appoint, as Director of Civilian Markmanship, under the direction of the Secretary of War, an officer of the Army or of the Marine Corps. — 39 Stat., 648, chap. 418.) [1916, Aug. 29, sec. 2. Council of National Defense.] That a Council of National Defense is hereby established, for the coordination of industries and resources for the national security and welfare, to consist of the Secretary of War, the Secretary of the Navy, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Commerce, and the Secretary of Labor. That the Council of National Defense shall nominate to the President, and the President shall appoint, an advisory commission, consisting of not more than seven persons, each of whom shall have special knowledge of some industry, public utility, or the development of some natural resource, or be otherwise specially qualified, in the opinion of the council, for the performance of the duties hereinafter provided. The members of the advisory commission shaU serve without compensation, but shall be allowed actual expenses of travel and subsistence when attending meetings of the commission or engaged in investi- gations pertaining to its activities. The advisory commission shall hold such meetings as shall be called by the council or be provided by the rules and regu- lations adopted by the council for the conduct of its work. — (39 Stat., 649, chap. 418.) That it shall be the duty of the Council of National Defense to supervise and direct investigations and make recommendations to the President and the heads of executive departments as to the location of railroads with reference to the frontier of the United States so as to render possible expeditious concen- tration of troops and supplies to points of defense; the coordination of military, industrial, and commercial purposes in the location of extensive highways and branch lines of railroad; the utilization of waterways; the mobilization of military and naval resources for defense; the increase of domestic production of articles and materials essential to the support of armies and of the people 1465 Sept. 7, 1916. Pi. .]. STATUTES A T LARGE. during the interruption of foreign commerce; the development of seagoing transportation; data as to amounts, location, method and means of production, and availability of military supplies; the giving of information to producers and manufacturers as to the class of supplies needed by the military and other services of the Government, the requirements relating thereto, and the creation of relations which will render possible in time of need the immediate concentra- tion and utilization of the resources of the Nation. — (39 Stat., 649-650, chap. 418.) That the Council of National Defense shall adopt rules and regulations for the conduct of its work, which rules and regulations shall be subject to the approval of the President, and shall provide for the work of the advisory com- mission to the end that the special knowledge of such commission may be developed by suitable investigation, research, and inquiry and made available in conference and report for the use of the council ; and the council may organize subordinate bodies for its assistance in special investigations, either by the employment of experts or by the creation of committees of specially qualified persons to serve without compensation, but to direct the investigations of experts so employed. * * * Reports shall be submitted by all subordinate bodies and by the advisory commission to the council, and from time to time the council shall report to the President or to the heads of executive departments upon special inquiries or subjects appropriate thereto, and an annual report to the Congress shall be submitted through the President, including as full a statement of the activities of the coimcil and the agencies subordinate to it as is consistent with the public interest, including an itemized accoimt of the expenditures made by the council or authorized by it, in as full detail as the public interest will permit: Provided, however, That when deemed proper the President may authorize, in amounts stipulated by him, mivouchered expenditures and report the gross sums so authorized not itemized. — (39 Stat., 650, chap. 418.) of the Council of National Defense, but that such powers and duties shall remain as pre- scribed by the Act creating said council, approved August twenty-ninth, nineteen hundred and sixteen." By act of June 15, 1917 (40 Stat., 182), which contained appropriations for the council of National Defense, it was pro\'ided "that in the expenditure of said moneys the ex- istence of a state of war shall not be con- strued as enlarging the powers or duties [1916, Sept. 7. United States Shipping Board.] Sec. 4. * * * xhe President, upon the request of the board, may authorize the detail of officers of the military, naval, or other services of the United States for such duties as the board may deem necessary in connection with its business. * * * — (39 Stat., 729, chap. 451.) Sec. 5. That the board, with the approval of the President, is authorized to have constructed and equipped in American shipyards and navy yards or elsew^here, giving preference, other things being equal, to domestic yards, or to purchase, lease, or charter, vessels suitable, as far as the commercial require- ments of the marine trade of the United States may permit, for use as naval auxiliaries or Army transports, or for other naval or military purposes, and to make necessary repairs on and alterations of such vessels. * * * ^ — (39 Stat., 730, chap. 451.) 1466 Employees' Compensation. Ft. 3. STATUTES AT LARGE. Sept. 7, 1916. Section 5 was expressly repealed by act of June 5, 1920 (41 Stat., 988), with certain limitations relating to contracts previously entered into, construction already com- menced, etc. By act of March 4, 1921 (41 Stat., 1382-1383), it was provided that after the approval of said act, ' ' no contract shall be entered into or work undertaken for the construction of any additional vessels for the United States Shipping Board or the United States Ship- ping Board Emergency Fleet Corporation." Sec. 6. That the President may transfer either permanently or for limited periods to the board such vessels belonging to the War or Navy Department as are suitable for commercial uses and not required for military or naval use in time of peace, and cause to be transferred to the board vessels owned by the Panama Railroad Company and not required in its business. * * *. — (39 Stat., 730, chap. 451.) Sec. 10. That the President, upon giving to the person interested such reasonable notice in writing as in his judgment the circumstances permit, may take possession, absolutely or temporarily, for any naval or military purpose, of any vessel purchased, leased, or chartered from the board : Provided, That if, in the judgment of the President, an emergency exists requiring such action he may take possession of any such vessel without notice. Thereafter, upon ascertainment by agreement or otherwise, the United States shall pay the person interested the fair actual value based upon normal conditions at the time of taking of the interest of such person in every vessel taken absolutely, or if taken for a limited period, the fair charter value under normal conditions for such period. In case of disagreement as to such fair value it shall be determined by appraisers, one to be appointed by the board, one by the person interested, and a third by the two so appointed. The find- ing of such appraisers shall be final and binding upon both parties. * * *. — (39 Stat., 731, chap. 451.) Sec. 12. * * * It shall examine the navigation laws of the United States and the rules and regulations thereunder, and make such recommenda- tions to the Congress as it deems proper for the amendment, improvement, and revision of such laws, and for the development of the American merchant marme. * * *.— (39 Stat., 732, chap. 451.) [1916, Sept. 7. Employees, compensation for injuries, etc.] That the United States shall pay compensation as hereinafter specified for the dis- ability or death of an employee resulting from a personal injury sustained while in the performance of his duty, but no compensation shall be paid if the injury or death is caused by the willful misconduct of the employee or by the employee's intention to bring about the injury or death of himself or of another, or if intoxication of the injured employee is the proximate cause of the injury or death.— (39 Stat., 742-743, chap. 458.) Sec. 2. That during the first three days of disability the employee shall not be entitled to compensation except as provided in section nine. No com- pensation shall at any time be paid for such period. * * * Sec. 7. That as long as the employee is in receipt of compensation under this Act, or, if he has been paid a lump sum in commutation of installment payments, until the expiration of the period during which such installment payments would have continued, he shall not receive from the United States any salary, pay, or remuneration whatsoever except in return for services 54641°— 22 93 1467 Sept. 7, 1916. Pi. S. STATUTES AT LARGE. Employees' Compensation. actually performed, and except pensions for service in the Army or Navy of the United States. Sec. 8. That if at the time the disability begins the employee has annual or sick leave to his credit he may, subject to the approval of the head of the department, use such leave until it is exhausted, in which case his compensa- tion shall begin on the fourth day of disability after the annual or sick leave has ceased. — (39 Stat., 743, chap. 458.) Sec. 9. That immediately after an injury sustained by an employee while in the performance of his duty, whether or not disability has arisen, and for a reasonable time thereafter, the United States shall furnish to such employee reasonable medical, surgical, and hospital services and supplies unless he refuses to accept them. Such services and supplies shall be furnished by United States medical officers and hospitals, but where this is not practicable shall be furnished by private physicians and hospitals designated or approved by the commis- sion and paid for from the employees' compensation fund. If necessary for the secm-ing of proper medical, surgical, and hospital treatment, the emploj^^ee, in the discretion of the commission, may be furnished transportation at the expense of the employees' compensation fund. * * *. — (39 Stat., 743- 744, chap. 458.) Sec. 15. That every employee mjm-ed in the performance of his duty, or some one on his behalf, shall, within forty-eight hours after the injmy, give written notice thereof to the immediate superior of the employee. Such notice shall be given by delivering it personally or by depositing it properly stamped and addressed in the mail. — (39 Stat., 746, chap. 458.) Sec. 16. That the notice shall state the name and address of the employee, the year, month, day, and hour when and the particular locality where the injmy occurred, and the cause and nature of the injury, and shall be signed by and contain the address of the person giving the notice. Sec. 17. That unless notice is given within the time specified or unless the immediate superior has actual knowledge of the injury, no compensation shall be allowed, but for any reasonable cause shown, the commission may allow compensation if the notice is filed within one year after the injury. Sec. 18. That no compensation under this Act shall be allowed to any person, except as provided in section thirty-eight, unless he or some one on his behalf shall, \vithin the time specified iii section twenty, make a written claim therefor. Such claim shall be made by delivermg it at the office of the commission or to any commissioner or to any person whom the commission may by regulation designate, or by depositing it in the mail properly stamped and addressed to the commission or to any person whom the commission may by regulation designate. Sec. 19. That every claim shall be made on forms to be furnished by the commission and shall contam all the information required by the commission. Each claim shall be sworn to by the person entitled to compensation or by the person acting on his behalf, and, except in case of death, shall be accompanied by a certificate of the employee's physician stating the nature of the injury and the nature and probable extent of the disability. For any reasonable cause shown the commission may waive the provisions of this section. — (39 Stat., 746, chap. 458.) 1468 Employees' Compensation. Pt. 3. STATUTES AT LARGE. Sept. 7, 1916. Sec. 20. That all original claims for compensation for disability shall be made within sixty days after the injury. All original claims for compensation for death shall be made within one year after the death. For any reasonable cause shown the commission may allow original claims for compensation for disability to be made at any time within one year. * * * Sec. 24. That immediately after an injury to an employee resulting in his death or in his probable disability, his immediate superior shall make a report to the commission containing such information as the commission may require, and shall thereafter make such supplementary reports as the commission may require * * *.— (39 Stat., 747, chap. 458.) Sec. 28. That a commission is hereby created, to be known as the United States Employees' Compensation Commission, and to be composed of three commissioners appointed by the President, by and with the advice and consent of the Senate, one of whom shall be designated by the President as chairman. * * * The principal office of said commission shall be in Washington, District of Columbia, but the said commission is authorized to perform its work at any place deemed necessary by said commission, subject to the restric- tions and limitations of this Act. * * *. — (39 Stat., 748, chap. 458.) Sec. 32. That the commission is authorized to make necessary rules and regulations for the enforcement of this Act, and shall decide all questions arising under this Act. * * * Sec. 36. The commission, upon consideration of the claim presented by the beneficiary, and the report furnished by the immediate superior and the completion of such investigation as it may deem necessary, shall determine and make a finding of facts thereon andmake an award for or against payment of the compensation provided for in this Act. Compensation when awarded shall be paid from the employees' compensation fund. * * *. — (39 Stat., 749, chap. 458.) See act of May 22, 1920, section 5 (41 Stat., 617), as to disability retirement of civil em- ployees; and see act of October 6, 1917, section 312 (40 Stat., 408), as to members of the Navy Nurse Corps (female). [1916, Sept. 8, sec. 4. Special estimates must conform to law.] That the Secretary of the Treasury shall not hereafter transmit special or additional estimates of appropriations to Congress unless they shall conform to the requirements of section four of the Act approved June twenty-second, nineteen hundred and six (Thirty-fourth Statutes, page four hundred and forty-eight) . — (39 Stat., 830, chap. 464.) See act of June 22, 1906, Section 4 (34 Stat., 448^49), and references thereunder. [1917, Feb. 14. Threats against the President.] That any person who knowingly and wilKully deposits or causes to be deposited for conveyance in the mail or for delivery from any post office or by any letter carrier any letter, paper, writmg, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, or who knowingly and willfully otherwise makes any such threat against the President, shall upon conviction be fiuaed not exceeding SI, 000 or imprisoned not exceeding five years, or both. — (39 Stat., 919, chap. 64.) [1917, Mar. 3. Bureau of Eflaciency; assistance of departments.] Officers and employees of the executive departments and other estabhshments shall 1469 Mar. 3, 1917. Pt. S. STATUTES AT LARGE. Virgin Islands. furnish authorized representatives of the Bureau of Efficiency with all infor- mation that the bureau may require for the performance of the duties imposed on it by law, and shall give such representatives access to all records and papers that may be needed for that purpose. — (39 Stat., 1081, chap, 163.) [1917, Mar. 3. Payments to Government employees by private parties restricted.] That on and after July first, nineteen hundred and nineteen, no Goveriuuent ofTicial or employee shall receive any salary in connection with his services as such an ofhcial or employee from any source other than the Government of the United States, except as may be contributed out of the treasury of any State, county, or municipality, and no person, association, or corporation shall make any contribution to, or in any way supplement the salary of, any Government oflTicial or employee for the services performed by him for the Government of the United States. Any person violating any of the terms of this proviso shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $1,000 or imprisonment for not less than six months, or by both such fine and imprisonment as the court may determine. — (39 Stat., 1106, chap. 163.) See sections 1763-1765, Revised Statutes, as to double salaries and extra allowances to Gov- ernment employees. [1917, Mar. 3. Virgin Islands; temporary government.] That, except as hereinafter provided, all military, civil, and judicial powers necessary to govern the West Indian Islands acquired from Denmark shall be vested in a governor and in. such person or persons as the President may appoint, and shall be exer- cised in such manner as the President shall direct until Congress shall provide for the government of said islands: Provided, That the President may assign an officer of the Army or Navy to serve as such governor and perform the duties appertaining to said office: And 'provided further , That the governor of the said islands shall be appointed by and with the advice and consent of the Senate: And provided further , That the compensation of aU persons appointed under this Act shall be fixed by the President.— (39 Stat., 1132, chap. 171.) Sec. 2. That until Congress shall otherwise provide, in so far as compatible with the changed sovereignty and not in conflict with the provisions of this Act, the laws regulating elections and the electoral franchise as set forth in the code of laws published at Amahenborg the sixth day of April, nineteen hundred and six, and the other local laws, in force and effect in said islands on the seven- teenth day of January, nineteen hundred and seventeen, shall remain in force and effect in said islands, and the same shall be administered by the civil offi- cials and through the local judicial tribunals established in said islands, respec- tively; and the orders, judgments, and decrees of said judicial tribunals shall be duly enforced. With the approval of the President, or under such rules and regulations as the President may prescribe, any of said laws may be repealed, altered, or amended by the colonial council having jurisdiction. The jurisdic- tion of the judicial tribunals of said islands shall extend to all judicial proceed- ings and controversies in said islands to which the United States or any citizen thereof may be a party. In all cases arising in the said West Indian Islands and now reviewable by the courts of Denmark, writs of error and appeals shall be to the Circuit Court of Appeals for the Thhd Circuit, and, except as provided 1470 Virgin Islands. Ft. 3. STATUTES AT LARGE. Mar. 3, 1917. in sections two hundred and thirty-nine and two hundred and forty of the Judi- cial Code, the judgments, orders, and decrees of such court shall be final in all such cases.— (39 Stat., 1132-1133, chap. 171.) Sec. 3. That on and after the passage of this Act there shall be levied, collected, and paid upon all articles coming into the United States or its pos- sessions, from the West Indian Islands ceded to the United States by Denmark, the rates of duty and internal-revenue taxes which are required to be levied, collected, and paid upon like articles imported from foreign countries: Provided, That all articles, the growth or product of, or manufactured in such islands from materials the growth or product of such islands or of the United States, or of both, or which do not contain foreign materials to the value of more than twenty per centum of their total value, upon which no drawback of customs duties has been allowed therein, coming into the United States from such islands shall hereafter be admitted free of duty. Sec. 4. That until Congress shall otherwise provide aU laws now imposing taxes in the said West Indian Islands, including the customs laws and regula- tions, shall, in so far as compatible with the changed sovereignty and not other- wise herein provided, continue in force and effect, except that articles the growth, product, or manufacture of the United States shall be admitted there free of duty: Provided, That upon exportation of sugar to any foreign country, or the shipment thereof to the United States or any of its possessions, there shall be levied, collected, and paid thereon an export duty of $8 per ton of two thousand pounds irrespective of polariscope test, in lieu of any export tax now required by law. Sec. 5. That the duties and taxes collected in pursuance of this Act shall not be covered into the general fund of the Treasury of the United States, but shall be used and expended for the government and benefit of said islands under such rules and regulations as the President may prescribe. Sec. 6. That for the purpose of taking over and occupying said islands and of carrying this Act into effect and to meet any deficit in the revenues of the said islands resulting from the provisions of this Act the sum of $100,000 is hereby appropriated, to be paid out of any moneys in the Treasury not other- wise appropriated, and to be applied under the direction of the President of the United States. Sec. 7. That the sum of S25,000,000 is hereby appropriated, out of any moneys in the Treasury not otherwise appropriated, to be paid in the city of Washington to the diplomatic representative or other agent of His Majesty the King of Denmark duly authorized to receive said money, in full consideration of the cession of the Danish West Indian Islands to the United States made by the convention between the United States of America and His Majesty the King of Denmark entered into August fourth, nineteen hundred and sixteen, and ratified by the Senate of the United States on the seventh day of September, nineteen hundred and sixteen. — (39 Stat., 1133, chap. 171.) Sec. 8. That this Act, with the exception of section seven, shall be in force and effect and become operative immediately upon the payment by the United States of said sum of $25,000,000. The fact and date of such payment shall thereupon be made public by a proclamation issued by the President and published in the said Danish West Indian Islands and in the United States. 1471 Mar. 4, 1917. PL S. STATUTES AT LARGE. Section seven shall become immediately effective and the appropriation thereby provided for shall be immediately available, — (39 Stat., 1133-1134, chap. 171.) See note to section I860, Revised Statutes^ as to status of Virp^in Islands, and appoint- mont of naval olliccr as jud.2:e therein; Citizenship in Virgin Islands. — Certain Danish citizens residing in the Virgin Islands were to be held "to have accepted citizensliip in the United States," and provision was made for the naturalization of others, by convention between the United States and Denmark, pro- claimed January 2.5, 1917 (39 Stat., 1706, 1721). (See file 26252-143:3, July 14, 1919.) [1917, Mar. 4, Naval examining and retiring boards on foreign stations.] That hereafter the Secretary of the Navy may authorize the senior officer present, or other commanding officer, on a foreign station to order boards of medical examiners, examining boards, and retiring boards for the examination of such candidates for appointment, promotion, and retirement in the Navy and Marine Corps as may be serving in such officer's command and may be directed to appear before any such board. — (39 Stat., 1171, chap. 180.) This paragraph modifies sections 1370, 1379, 1448, 1493, 1496, 1599, and 1622, Revised Statutes, and subsequent laws relating to appointments and promotions in the Na^^y. The words "foreign station" in this para- graph are not limited to waters, ports, and stations in foreign countries. Commanding officers of naval forces outside of the continental limits of the United States, including the com- mander in chief of the Pacific Fleet,- may law- fully be empowered to order the boards men- tioned. (File 26521-186:30, Oct. 8, 1920.) 1915, and August 29, 1916, but without the word "hereafter" which was embodied in this paragraph. [1917, Mar. 4. Naval Home sales, etc., credited to naval pension fund.] That all moneys derived from the sale of material at the Naval Home, which was originally purchased from moneys appropriated from the income from the naval pension fund, and all moneys derived from the rental of Naval Home property, shall hereafter be turned into the naval pension fund. — (39 Stat., 1175, chap. 180.) See sections 4750 and 4810, Revised Statutes, and notes thereto. Similar pro\dsion8 were contained in naval appropriation acts of June 30, 1914, March 3, [1917, Mar. 4. Shore pay, warrant officers.] Hereafter the pay of warrant officers while on shore duty during the fourth three years' service shall be $1,750 per annum.— (39 Stat., 1181, chap. 180.) See note to section 1556, Revised Statutes, as to pay of warrant officers. [1917, Mar. 4. Advances of pay to naval officers.] Hereafter advances of pay not to exceed three months' pay in any one case may be made to officers ordered to and from sea duty and to and from shore duty beyond the seas, under such regulations as the Secretary of the Navy may prescribe. — (39 Stat., 1181-1 182,chap. 180.) See section 1563, Revised Statutes, and note thereto. [1917, Mar. 4. Appointment of midshipmen from enlisted men.] Hereafter, in addition to the appointment of midshipmen to the United States Naval Academy, as now prescribed by law, the Secretary of the Navy is allowed one hundred appointments annually, instead of twenty-five as now prescribed by law, to be appointed from the enlisted men of the Navy who are citizens of the United States, and not more than twenty years of age on the date of en- trance to the Naval Academy, and who shall have served not less than one year as enlisted men on the date of entrance: Provided, Thsbt such appointments shall be made in the order of merit from candidates who have, in competition 1472 PL 3. STATUTES AT LARGE. Mar. 4, 1917. with each other, passed the mental examination now or hereafter required by law for entrance to the Naval Academy, and who passed the physical examina- tion before entrance under existing laws. — (39 Stat., 1182, chap. 180.) The act of December 20, 1917 (40 Stat., 430), as amended and reenacted by act of July 11, 1919 (41 Stat., 140), authorized the appointment of midshipmen from con- gressional districts, etc., "and one hun- dred appointed annually from enlisted men of the Navy, and members of the Naval Reserve Force on active duty, as now authorized by law. " See note to section 1513, Revised Statutes. [1917, Mar. 4. Examinations of staff officers for advancement ; dental officers credited with prior service.] Hereafter all laws relating to the examination of officers of the Navy for promotion shall be construed to apply to the regular advancement of staff officers to higher ranks on the active list, the same as though such advancements in rank were promotions to higher grades : Provided, That nothing in this paragraph shall be construed as in any way affecting the origmal appointments of officers to the Dental Corps as provided in the Act approved August twenty-ninth, nineteen hundred and sixteen, making appro- priations for the naval service for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes, and the time served by dental surgeons as acting or acting assistant dental surgeons shall be reckoned in computing the increased service pay and service for promotion of such as are commissioned under said Act. — (39 Stat., 1182, chap. 180.) The first part of this paragraph was repeated, with additions, by act of May 22, 1917, sec- tion 20 (40 Stat., 89-90). As to promotion of dental officers, see act of August 29, 1916 (39 Stat., 573-574), as amended and reenacted by act of July 1, 1918 (40 Stat., 708-710). [1917, Mar. 4. Forging, etc., discharge certificates.] Whoever shall forge, counterfeit, or falsely alter any certificate of discharge from the military or naval service of the United States, or shall in any manner aid or assist in forg- ing, counterfeiting, or falsely altering any such certificate, or shall use, unlaw- fully have in his possession, exhibit, or cause to be used or exhibited, any such forged, counterfeited, or falsely altered certificate, knowing the same to be forged, counterfeited, or falsely altered, shall be fined not more than $1,000 or imprisoned not more than one year, or both, in the discretion of the court. — (39 Stat., 1182, chap. 180.) See sections 1426-1427, Re\T.sed Statutes, and notes thereto; and see Criminal Code, Act of March 4, 1909, section 28 (35 Stat., 1094). [1917, Mar. 4. Keserve material, Navy.] For procuring apparatus and materials (other than ordnance materials and medical stores) , as a war reserve necessary to be carried in the supply departments for the purpose of fitting out vessels of the fleet and merchant auxiliaries in time of war or when, m the opinion of the President, a national emergency exists, to be immediately available and to continue available until expended, $3,000,000: Provided, That, to pre- vent deterioration such materials shall be used as required in time of peace, and when so used reimbursement shall be made to this appropriation from current naval appropriations in order that additional stocks may be procured. — (39 Stat., 1183, chap. 180.) Similar provision was contained in act of June See section 3718, Revised Statutes, and note 15, 1917 (40 Stat., 211). thereto. 1473 Mar. 4. 1917. Pt. 3. STATUTES AT LARGE. [1917, Mar. 4. Rank of assistant civil engineers.] Officers of the Corps of Civil Eu«;iiicors hereafter a])p()iiited shall, from the date of their original appoint- ment, take rank and precedence with Lieutenants (junior grade). — (39 Stat.^ 1184, chap. 180.) See note to section 1478, Revised Statutes. [1917, Mar. 4. Navy mail clerks on shore.] That the provisions of the Act of IVIay twenty-seventh, nineteen hundred and eight (Thirty-fifth Statutes, pages four hundred and seventeen and four hundred and eighteen) , as amended by the Act of August twenty-fourth, nineteen hundred and twelve (Thirty- seventh Statutes, page five hundred and sixty) , are hereby extended to author- ize the designation of enlisted men of the Navy or Marine Corps as Navy mail clerks and assistant Navy mail clerks with expeditionary forces on shore. — ■ (39 Stat., 1188, chap. 180.) See act of May 27, 1908 (35 Stat.. 417^18), and amendments noted thereunder. [1917, Mar. 4. Warrant officers, Marine Corps; foreign shore service pay.] That marine gunners and quartermaster clerks of the IMarine Corps assigned to foreign shore service shall hereafter be entitled to the same increased com- pensation and under the same conditions as is now or hereafter allowed by law to commissioned officers of the IVIarine Corps. — (39 Stat., 1188, chap. 180.) See note to section 1612, Revised Statutes, as to pay of the Marine Corps; and see act of August 29, 1916 (39 Stat., 611). [1917, Mar. 4. Exchange of sewing machines, etc.] That hereafter worn-out sewing machines, machinery, rubber tires, and band instruments may be exchanged in part payment for the purchase of like articles. — (39 Stat., 1189, chap. 180.) This was a proviso following appropriation for " Clothing, Marine Corps. " See note to section 418, Revised Statutes. [1917, Mar. 4. Pay of enlisted men on clerical duty, marine headquarters.] That hereafter no part of the pay and allowances authorized for enlisted men detailed as clerks and messengers in the office of the IVIajor General Command- ant and the several staff offices shall be forfeited when granted furlough for not exceeding thirty days in each calendar year. — (39 Stat., 1191, chap. 180.) By section 1612, Revised Statutes, enlisted men of the Marine Corps are entitled to the same pay as enlisted men of the A rmy ; by act of June 4, 1920, section 4 (41 Stat., 761), amending act of June 3, 1916, section 4 (39 Stat., 167), it was provided, with refer- ence to the Army, that "all laws and parts of laws providing for extra duty for enlisted men are repealed, to take effect July 1, 1920." [1917, Mar. 4. Eight hour law suspended in national emergency.] That in case of national emergency the President is authorized to suspend provisions of law prohibiting more than eight hours labor in any one day of persons en- gaged upon work covered by contracts with the United States : Provided further, That the wages of persons employed upon such contracts shall be computed on a basic day rate of eight hours work, with overtime rates to be paid for at not less than time and one-half for all hours work in excess of eight hours. — (39 Stat., 1192, chap. 180.) See act of August 1, 1892 (27 Stat., 340), as amended and reenacted by act of March 3, 1913 (37 Stat., 726-727);" and see act of June 19, 1912 (37 Stat., 137-138), and sec- tion 3738, Revised Statutes. 1474 Ft. 3. STATUTES AT LARGE. Mar. 4, 1917. [1917, Mar. 4. Procurement of ships and material during war; changes in contracts; commandeering factories, etc.] (a) That the word ''person" as used in paragraphs (b), (c), next hereafter shall include any individual, trustee, firm, association, company, or corporation. The word "ship" shall include any boat, vessel, submarine, or any form of aircraft, and the parts thereof. The words "war material" shall include arms, -armament, ammunition, stores, supplies, and equipment for ships and airplanes, and everything required for or in connection with the production thereof. The word "factory" shall include any factory, workshop, engine w^orks, building used for manufacture, assembling, construction, or any process, and any shipyard or dockyard. The words "United States" shall include the Canal Zone and all territory and w'aters, continental and insular, subject to the jurisdiction of the United States. — (39 Stat., 1192-1193, chap. 180.) (b) That in time of war, or of national emergency arising prior to March first, nineteen hundred and eighteen, to be determined by the President by proclamation, the President is hereby authorized and empowered, in addition to all other existing provisions of law^: First. Within the limits of the amounts appropriated therefor, to place an order with any person for such ships or w^ar material as the necessities of the Government, to be determined by the President, may require and which are of the nature, kind, and quantity usually produced or capable of being produced by such person. Compliance with all such orders shall be obligatory on any person to wiiom such order is given, and such order shall take precedence over all other orders and contracts theretofore placed wnth such person. If any person owning, leasing, or operating any factory equipped for the building or production of ships or war material for the Navy shall refuse or fail to give to the United States such preference in the execution of such an order, or shall refuse to build, supply, furnish, or manufacture the kind, quantity, or quality of ships or war material so ordered at such reasonable price as shall be deter- mined by the President, the President may take immediate possession of any factory of such person, or of any part thereof without taking possession of the entire factory, and may use the same at such times and in such manner as he may consider necessary or expedient. Second. Within the limit of the amounts appropriated therefor, to modify or cancel any existing contract for the building, production, or purchase of ships or war material; and if any contractor shall refuse or fail to comply with the contract as so modified the President may take immediate possession of any factory of such contractor, or any part thereof without taking possession of the entire factory, and may use the same at such times and in such manner as he may consider necessary or expedient. Third. To require the o\\mer or occupier of any factory in w^hich ships or war material are built or produced to place at the disposal of the United vStates the whole or any part of the output of such factory, and, within the limit of the amounts appropriated therefor, to deliver such output or parts thereof in such quantities and at such times as may be specified in the order at such reasonable price as shall be determined by the President. 1475 May 12, 1917. Pt. 3. STATUTES AT LARGE. Fourth. To requisition and take over for use or operation by the Govern- ment any factory, or any jnirt thereof without taking possession of the entire factory, whether the United States has or has not any contract or agreement with the owner or occupier of such factory. That all authority granted to the President in this paragraph, to be exer- cised in time of national emergency, shall cease on March first, nineteen hundred and eighteen. (d) That whenever the United States shall cancel or modify any contract, make use of, assume, occupy, requisition, or take over any factory or part thereof, or any ships or war material, in accordance ^^^th the provisions of paragraph (b), it shall make just compensation therefor, to be determined by the President, and if the amount thereof so determined by the President is unsatisfactory to the person entitled to receive the same, such person shall be paid fifty per centum of the amount so determined by the President and shall be entitled to sue the United States to recover such further sum as added to said fifty per centum shall make up such amount as will be just compensation therefor, in the manner provided for by section twenty-four, paragraph twenty, and section one hundred and forty-five of the Judicial Code. — (39 Stat., 1193, chap. 180.) So much of this act as related to the authority of the President in time of national emer- gency, expired, bv its terms, on March 1, 1918. The authority granted the President by this act, to be exercised in time of war, was "in addition to" the authoritv contained in act of June 3, 1916, section 120 (39 Stat., 213); see also acts of September 7, 1916, section 10 (39 Stat., 731), and August 29, 1916 (39 Stat., 592). Other pro\isions for procurement of ships and material, cancellation of contracts, etc., were contained in act of June 15, 1917 (40 Stat., 182-183), which in terms was to expire six months after a treaty of peace proclaimed between this Government and the German Empire. Said act of June 15, 1917, was amended bv acts of April 22, 1918 (40 Stat., 535), and November 4, 1918 (40 Stat., 1022), and was repealed, together with said amendments, by act of June 5, 1920 (41 Stat., 988), which also re- pealed an act approved July 18, 1918 (40 Stat., 913), which contained authority for commandeering vessels during the then existing war. Other pro\isions on this subject, but limited to the then existing war, were contained in act of Jiily 1, 1918 (40 Stat., 719-720). As to changes in contracts, see note to act of August 3, 1886 (24 Stat., 215). [1917, Apr. 25. Extension of minority enlistments.] That hereafter any enlistment for minority in the Navy or Marine Corps may be extended as is provided by law for extending an enlistment for a term of four years, under similar conditions and with like rights, privileges, benefits, and obligations. — (40 Stat., 38, chap. 6.) See sections 1418, 1573, and 1608, Re^dsed Statutes, and notes thereto. [1917, May 12. Government employees, members of Officers' Reserve Corps; leaves of absence ; reinstatement.] That all officers and employees of the United States or of the District of Columbia who shall be members of the Officers' Reserve Corps shall be entitled to leave of absence from their respective duties, without loss of pay, time, or efficiency rating, on all days during which they shall be ordered to duty with troops or at field exercises, or for instruction, for periods not to exceed fifteen days in any one calendar year. Provided further, That members of the Officers' Reserve Corps who are in the employ of the United States Government or of the District of Columbia and who are ordered to duty by proper authority shall, when relieved from duty, be restored to the positions held by them when ordered to duty. — (40 Stat., 72, chap. 12.) 1476 PL 3. STAT UTES A T LARGE. May 18,1917. Statutes, under "Honorably discharged soldiers or sailors." See act of June 3, 1916, section 80 (39 Stat., 203), as to employees belonging to National ^ Guard ; and see note to section 416, Revised [1917, May 12. Seizure of vessels belonging to alien enemies.] That the President be, and he is hereby, authorized to take over to the United States the immediate possession and title of any vessel within the jurisdiction thereof, including the Canal Zone and all territories and insular possessions of the United States except the American Virgin Islands, which at the time of coming into such jurisdiction was owned in whole or in part by any corporation, citizen, or subject of any nation with which the United States may be at war when such vessel shall be taken, or was flying the flag of or was under register of any such nation or any political subdivision or municipality thereof; and, through the United States Shipping Board, or any department or agency of the Govern- ment, to operate, lease, charter, and equip such vessel in any service of the United States, or in any commerce, foreign or coastwise. Sec. 2. That the Secretary of the Navy be, and he is hereby, authorized and directed to appoint, subject to the approval of the President, a board of survey, whose duty it shall be to ascertain the actual value of the vessel, its equipment, appurtenances, and all property contained therein, at the time of its taking, and to make a written report of their findings to the Secretary of the Navy, who shall preserve such report with the records of his department. These findmgs shall be considered as competent evidence in all proceedings on any claim for compensation. — (40 Stat., 75, chap. 13, Pub. Res. No. 2.) By act of June 5, 1920, section 4 (41 Stat., 990), it was provided that vessels acquired by the President pursuant to this joint resolution, ''are hereby transferred " to the Shipping Board, with certain exceptions which included ''all vessels in the military and naval service of the United States." [1917, May 18, sec. 12. Liquor prohibition authorized, near military camps, etc.] That the President of the United States, as Commander in Chief of the Army, is authorized to make such regulations governing the prohibition of alcoholic liquors in or near military camps and to the officers and enlisted men of the Army as he may from time to time deem necessary or advisable: Provided, That no person, corporation, partnership, or association shall sell, supply, or have in his or its possession any intoxicating or spirituous liquors at any military station, cantonment, camp, fort, post, officers' or enlisted men's club, which is being used at the time for military purposes under this Act, but the Secretary of War may make regulations permitting the sale and use of intoxicating liquors for medicinal purposes. It shall be unla%vful to sell any intoxicating liquor, including beer, ale, or wine, to any officer or member of the military forces while in uniform, except as herein provided. Any person corporation, partnership, or association violating the provisions of this section or the regulations made thereunder shall, unless otherwise punishable under the Articles of War, be deemed guilty of a misdemeanor and be punished by a fine of not more than $1,000 or imprisonment for not more than twelve months, or both. — (40 Stat., 82-83, chap. 15.) This section was amended by act of October 6, i the word 'military' shall include 'naval'; 1917 (40 Stat., 393), which provided that, 'Article of War' shall include 'Articles for in construing this section, "the word | the Government of the Navy'; the words 'Army 'shall extend to and include 'Navy'; 'camps, station, cantonment, camp, fort, 1477 May 22, 1917. PL S. STATUTES AT LARGE. post, ofTicors' or onlistod men's club," * * * shall include such i)laces under naval juris- diction as the President may prescribe, and the powers therein conferred upon the Secretary of War with regard to the military service are hereby conferred upon the Swretary of the IS'avy with regard to the naval ser\-ice." By the National Prohibition Act of October 28, 1919, section 7 (41 Stat., 307), it was pro- vided that 'None of the provisions of this Act shall be construed to repeal any of the pro\isions of the 'War Prohibition Act,' or to limit or annul any order or regiilation prohibiting tlie manufacture, sale, or dis- position of intoxicating liquors within cer- tain prescribed zones or districts, nor shall the j^roxisions of this Act be construed to ])rohibit the use of the power of the militaiy or naval authorities to enforce the regula- tions of the President or Secretary of War or Navy issued in pursuance of law, pro- hibiting the manufacture, use, possession, sale, or other disposition of intoxicating liquors during the period of the war and demobilization thereafter." The same act, section 3.5 (41 Stat., 317), provided that ' ' all provisions of law that are inconsistent with this Act are repealed only to the extent of such inconsistency and the regulations herein provided for the manufacture or traffic in intoxicating liquor shall be con- strued as in addition to existing laws." See section 1624, Revised Statutes, article 13, and Constitution, eighteenth amendment. Section 13 of the above act of May 18, 1917 (40 Stat., 83), relating to prostitution, etc., near military places, which was also extended by act of October 6, 1917 (40 Stat., 393), to in- clude naval places, was in terms limited to "the present war," and is therefore omitted. Arrest of civilians by naval authorities. — The act of May 18, 1917, section 12, as amended by act of October 6, 1917, was not repealed by the National Prohibition Act of October 28, 1919. The general orders issued piirsuant to the former statutes (G. O. 411, Aug. 3, 1918, and G. O. 412, Aug. 16, 1918) are therefore still in effect, and the commanding officer of a maiine barracks is authorized, in the enforcement of said orders, to arrest ci\'ilians who are apprehended in the act of Aiolating any of the provisions of said oi'ders, and to retain them in custody no, longer than is necessary to turn them over to the proper ci\'il authorities of the United States. He is not, however, authorized to arrest civilians except on the Government reservation; offenders outside, although within the zone prescribed by general orders, should be arrested by the Federal ciWl authorities, to whom report of the facts should be made. (File 29163-2, Feb. 24, 1920.) [1917, May 22. "Authorized enlisted strength" defined; instruction in trade schools.] * * * That the phrase ''authorized enhsted strength," as applied to the personnel of the Navy, shall mean the total number of enlisted men of the Navy authorized by law, exclusive of the Hospital Corps, apprentice seamen, those sentenced by court-martial to discharge, those detailed for duty with Naval Militia, those furloughed without pay, enlisted men of the Flying Corps, and those under instruction in trade schools: Provided further, That the number of enlisted men for instruction in trade schools shall not at any time exceed fourteen thousand, which number is hereby temporarilv authorized. * * *.— (40 Stat., 84, chap. 20; 40 Stat., 714, chap. 114.) This section was expressly amended and reenacted to read as above by act of July 1, 1918 (40 Stat., 714). The omitted portions of this section and other provisions of this act were temporary legislation, no longer in force. As to authorized enUsted strength of the Navy, see note to section 1417, ReAdsed Statutes. By act of July 11, 1919 (41 Stat., 138), tempo- rarily increasing the "total authorized enlisted strength of the active list of the Navy," it was provided ''that nothing herein shall be construed as affecting the permanent * * * enlisted strength of the Regular Navy as authorized bv existing law." [1917, May 22, sec. 2. Privates, first class, Marine Corps.] * * * That not more than twenty-five per centum of the authorized number of privates in the IVIarine Corps shall have the rank of private, first class, which rank is hereby established in the Marine Corps.— (40 Stat., 84-85, chap 20; 40 Stat., 714, chap. 114.) This section was expressly amended and reenacted to read as above by act of Julv 1, 1918 (40 Stat., 714). Other portions of the section are omitted ?-s temporary. See note to section 1596, Revised Statutes, as to the organization of the Marine Corps and number of enlisted men. 1478 Pt.3. STATUTES AT LARGE. May 22, 1917. * * [1917, May 22, sec. 5. Commissions to midshipmen on graduation.] * * * the class of midshipmen graduated from the Naval Academy on March twenty- ninth, nineteen hundred and seventeen, and the classes to be graduated here- after, may be commissioned effective from date of graduation (40 Stat., 86, chap. 20; 40 Stat., 716, chap. 114.) This section was reenacted by act of July 1, 1918 (40 Stat., 716), but without any change in the clause above set forth. Other portions of this section are omitted as temporary. See note to act of August 29, 1916(39 Stat., 576), as to distribution in grades of line officers; and note to section 1521, Revised Statutes, as to appointment of midshipmen to com- missioned grades on graduation from the Naval Academy. The word " effective " as used in this clause is sufficiently broad to authorize the treating of midshipmen, when commissioned, as though they had been commissioned on, instead of from, date of graduation ; and in making computations to determine the distribution of officers in the various grades and ranks. Midshipmen so commissioned may be counted as though they had been commissioned on date of graduation. (File 11130-41, May 21, 1917; see act of August 29, 1916, 39 Stat., 577, as to computations.) [1917, May 22, sec. 11. Additional warrant officers in the Marine Corps.] That the appointment of thirty marine gunners, thirty quartermaster's clerks, and nine clerks to assistant paymasters, additional to the number now pre- scribed by law, and the temporary appointment of eight clerks to assistant paymasters for the war, is hereby authorized, such appointments to be made in the manner now provided by law. — (40 Stat., 87, chap. 20.) See act of August 29, 1916 (39 Stat., 611), and note thereto, as to number of warrant officers in the Marine Corps; see act of July 1, 1918 (40 Stat., 735), as to pay clerks in the Marine Corps; see also note to section 1596, Revised Statutes. [1917, May 22, sec. 15. Pay of enlisted men.] That commencing June first, nineteen hundred and seventeen, and continuing until not later than six months after the termination of the present war, all enlisted men of the Navy of the United States in active service whose base pay does not exceed $21 per month shall receive an increase of $15 per month; those whose base pay is over $21 and does not exceed $24 per month, an increase of $12 per month; those whose base pay is over $24 and less than $45 per month, an increase of $8 per month; and those whose base pay is $45 or more per month, an increase of $6 per month: Provided, That the increases of pay herein authorized shall not enter into the computation of continuous-service pay. — (40 Stat., 87, chap. 20.) By act of July 11, 1919 (41 Stat., 140), the rates of pay prescribed in this section were "made the permanent rates of pay of the enlisted men of the Navy during their present current enlistment and for those [1917, May 22, sec. 16. Coast and Geodetic Survey, transfer to Navy during war; status and rank of personnel.] That the President is hereby authorized, whenever in his judgment a sufficient national emergency exists, to transfer to the service and jurisdiction of the War Department, or of the Navy Depart- ment, such vessels, equipment, stations, and personnel of the Coast and Geodetic Survey as he may deem to the best interest of the country, and after such trans- fer all expenses connected therewith shall be defrayed out of the appropriations for the department to wliich transfer is made: Provided, That such vessels, equipment, stations, and personnel shall be returned to the Coast and Geodetic Survey when such national emergency ceases, in the opinion of the President, who enlist or reenlist prior to July 1, 1920, for the term of such enlistment or reenlist- ment." See note to section 1569, Revised Statutes, as to pay of enlisted men of the Navy. 1479 May 22, 1917. Pt. S. STA TUTES A T LARGE. and notliing in this Act shall be construed as transferring the Coast and Geodetic Survey or any of its functions from the Department of Conamerce except in time of national emergency and to the extent herein provided: Provided further, That any of the personnel of the Coast and Geodetic Sm-vey who may be transferred as herein provided shall, while under the jurisdiction of the War Department or Navy Department, have proper military status and shall be subject to the laws, regulations, and orders for the government of the Army or Nav}^, as the case may be, in so far as the same may be applicable to persons whose retention permanently in the military service of the United States is not contemplated by law * * *. While actually employed in active service under direct orders of the War Department or of the Navy Department members of the Coast and Geodetic Survey shall receive the benefit of all provisions of laws relating to disability incurred in line of duty or loss of life. When serving with the Army or Navy the relative rank shall be as follows: Hydrographic and geodetic engineers receiving $4,000 or more shall rank with and after colonels in the Army and captains in the Navy. Hydrogi'aphic and geodetic engineers receiving S3, 000 or more but less than S4,000 shall rank with and after lieutenant colonels in the Army and com- manders in the Navy. Hj-di'ographic and geodetic engineers receiving $2,500 or more but less than $3,000 shall rank with and after majors in the Army and lieutenant com- manders in the Navy. Hydrographic and geodetic engineers receiving $2,000 or more but less than $2,500 shall rank with and after captains in the Army and lieutenants in the Navy. Junior hydrographic and geodetic engineers shall rank with and after first lieutenants in the Army and lieutenants (junior grade) in the Navy. Aids shall rank with and after second lieutenants in the Army and ensigns in the Navy. And nothing in this Act shall be construed to affect or alter their rates of pay and allowances when not assigned to military duty as hereinbefore men- tioned. The Secretary of War, the Secretary of the Navy, and the Secretary of Commerce shall jointly prescribe regulations governing the duties to be per- formed by the Coast and Geodetic Survey in time of war, and for the cooperation of that service with the War and Navy Departments in time of peace in prepara- tions for its duties in war, which regulations shall not be effective unless approved by each of the said Secretaries, and included therein may be rules and regula- tions for making reports and communications between the officers or bureaus of the War and Navy Departments and the Coast and Geodetic Survey. — (40 Stat., 87-88, chap. 20.) See act of October G, 1917 (40 Stat., 393-394), as to members of Coast and Geodetic Sur- vey serving on naval courts-martial in time [1917, May 22, sec. 17. Precedence of medical officers.] That nothing contained in the Act of August twenty-ninth, nineteen hundred and sixteen, shall operate to disturb the relative position of officers in the Medical Corps with reference to precedence or promotion, but all such ofiicers otherwise 1480 of war; and see note to section 1363, Re\a8ed Statutes. Pt. 3. STATUTES AT LARGE. May 22, 1917. qualified shall be advanced in rank with or ahead of officers in said corps who were their juniors on the date of said Act. — (40 Stat., 89, chap. 20.) See note to act of August 29, 191G (39 Stat., 576- for explanation of the sitTiation which thia 577), Tinder "Rank of assistant siirgeons, section was enacted to remedy. [1917, May 22, sec. 18. Ranks of admiral and vice admiral for fleet officers.] That the President be, and he is hereby, further authorized to designate six officers of the Navy for the command of fleets or subdivisions thereof and, after being so designated from the date of assuming such command until relinquish- ing thereof, not more than three of such officers shall each have the rank and pay of an admiral, and the others shall each have the rank and pay of a vice admiral; and the grades of admiral and vice admiral are hereby authorized and continued for the purpose of this Act: Provided, That in time of war the selec- tions under the provisions of this section shall be made from the grades of rear admiral or captain on the active list of the Navy: Provided further, That the pay of an admiral shall be S10,000 and the pay of a vice admiral $9,000 per annum: Provided further, That in time of peace officers for the command of fleets and subdivisions thereof, as herein authorized, shall be designated from among the rear admirals on the active list of the Navy: Provided further, That nothing herein contained shall create any vacancy in any grade in the Navy or increase the total number of officers authorized by law: Provided further, That when an officer with the rank of admiral or vice admiral is detached from the command of a fleet or subdivision thereof, as herein authorized, he shall return to his regular rank in the list of officers of the Navy and shall thereafter receive only the pay and allowances of such rank: Ahd provided further, That nothing in this Act shall be held or construed as amending or repealing the pro- visions of sections fourteen hundred and thirty-four, fourteen hundred and sixty- three, and fourteen hundred and sixty-four of the Revised Statutes of the United States. That the provision in the Act approved March third, nineteen hundred and fifteen, for the designation of commanders in chief of certain fleets with the rank of admiral and for the designation of officers second in command of such fleets with the rank of vice admiral be, and the same is hereby, repealed. — (40 Stat., 89, chap. 20.) See note to section 1362, Revised Statutes, under "The grade of Admiral;" note to section 1556, Re\'ised Statutes, under [1917, May 22, sec. 20. Advancement of staff officers, examinations ; Secretary of the Navy empowered to act for President on records of certain boards.] That hereafter all laws relating to the examination of officers of the Navy for pro- motion shall be construed to apply to the regular advancement of staff officers to higher ranks on the active list the same as though such advancements in rank were promotions to higher grades: Provided, That examinations for such staff officers shall not be required except for such regular advancements in rank: Provided further, That the President be, and he is hereby, authorized to direct the Secretary of the Navy to take such action on the records of pro- ceedings of naval examining boards and boards of naval surgeons for the pro- motion of officers of the Navy as is now required by law to be taken by the President.— (40 Stat., 89-90, chap. 20.) 1481 "2-3. Admirals; Vice admirals;" and see sections 1434, 1463, and 1464, Revised Stat- utes. ^ June 15, 1917. rt..L STATUTES AT LARGE. Espionage Act. See act of March 4, 1917 (39 Stat., 1182), which contained a provision identical \vith the first clause of this section; see also sections 1480, 1493, and 149(1, Revised Statutes, and notes thereto, as to examinations for promo- tion. As to distinction between rank" and "grade" see notes to sections 421, 422, 423, 13()2, 1457, 1477, 1479, 1480, and 1481 Revised Statutes. See section 1502, Revised Statutes, as to action of the President on records of promotion boards in the Navy. [1917, June 15. Commutation allowed Nurse Corps,] Members of Nurse Corps (female) * * * shall hereafter be paid the same commutation as is or may be allowed members of the Nurse Corps of the Army. — (40 Stat., 209, chap. 29.) See note to section 1556, Revised Statutes, under "36. Dental Corps; and Nurse Corps (female)." [1917, June 15. Purchase of vessels for transportation of fuel.] That when, in the opinion of the President, the prices asked for the charter of vessels for the transportation of fuel are excessive, he is authorized to purchase vessels suitable for the purpose and, if money is not otherwise available, to pay for them from the appropriation "Fuel and transportation." — (40 Stat., 211, chap. 29.) Identical provision was contained in act of July 1, 1918 (40 Stat., 730). See act of April 28, 1904 (33 Stat., 518), and sec- tions 3711, 3718, and 3728, Revised Stat- utes. [1917, June 15. Reserve material, Navy.] For procuring apparatus and materials (other than ordnance materials and medical stores) , as a war reserve necessary to be carried in the supply departments for the purpose of fitting out vessels of the fleet and merchant auxiliaries in time of war or when, in the opinion of the President, a national emergency exists, $2,000,000: Provided, That to prevent deterioration materials purchased under the reserve material Navy fund shall be used as required in time of peace, and when so used reim- bursement shall be made to this appropriation from current naval appropria- tions in order that additional stocks may be procured. — (40 Stat., 211, chap. 29.) Similar provision was contained in act of March See sections 3689, 3G90, and 3718, Revised Stat- 4, 1917 (39 Stat., 1183). utes, and notes thereto. [1917, June 15. Espionage; international relations; enforcement of neu- trality ; forgery of Government seal, military papers, etc. ; illegal use of mails ; use of naval forces.] Title I. ESPIONAGE. Section 1. That (a) whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the informa- tion to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, coaling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, or other place connected with the national defense, owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers 1482 Espionage Act. Ft. 3. STATUTES AT LARGE. June 15, 1917. or agents, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or in- struments for use in time of war are being made, prepared, repaired, or stored, imder any contract or agreement with the United States, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place within the meaning of section six of this title; or (b) whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts, or induces or aids another to copy, take, make, or obtain, any sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, document, writing, or note of any- thing connected with the national defense; or (c) whoever, for the purpose aforesaid, receives or obtains or agrees or attempts or induces or aids another to receive or obtain from any person, or from any source whatever, any docu- ment, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note, of any- thing connected with the national defense, knowing or having reason to be- heve, at the time he receives or obtains, or agrees or attempts or induces or aids another to receive or obtain it, that it has been or will be obtained, taken, made or disposed of by any person contrary to the provisions of this title; or (d) whoever, lawfully or imlawfully having possession of, access to, control over, or being intrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note relating to the national defense, willfully commu- nicates or transmits or attempts to communicate or transmit the same to any person not entitled to receive it, or willfully retains the same and fails to de- liver it on demand to the officer or employee of the United States entitled to receive it; or (e) whoever, being intrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, or information, relating to the national defense, through gross negligence permits the same to be removed from its proper place of custody or dehvered to anyone in viola- tion of his trust, or to be lost, stolen, abstracted, or destroyed, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or both.— (40 Stat., 217-218, chap. 30.) See Criminal Code, act of March 4, 1909, section 45 (35 Stat., 1097). Sec. 2. (a) Whoever, with intent or reason to beheve that it is to be used to the injury of the United States or to the advantage of a foreign nation, com- municates, dehvers, or transmits, or attempts to, or aids or induces another to, communicate, dehver, or transmit, to any foreign government, or to any fac- tion or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photo- graphic negative, blue print, plan, map, model, note, instrument, apphance, or information relating to the national defense, shall be punished by imprison- ment for not more than twenty years: Provided, That whoever shall violate the provisions of subsection (a) of this section in time of war shall be punished 54641°— 22 94 1483 June 15, 1917. PL 3. STATUTES AT LARGE. Espionage Act. by death or by imprisonment for not more than thirty years; and (b) whoever, in time of war, with intent that the same shall be communicated to the enemy, shall collect, record, publish, or communicate, or attempt to ehcit any informa- tion with respect to the movement, numbers, description, condition, or disposi- tion of any of the armed forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for not more than thirty years. — (40 Stat., 218-219, chap. 30.) Sec. 3. T\Tioever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordmation, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both. — (40 Stat., 219, chap. 30.) This section was amended and reenacted by actoi May 16, 1918 (40 Stat., 553-554), which amendatory act was repealed and the original section, as above set forth, "reAT-ved and restored with the same force and effect as originally enacted," by Joint Resolution of March 3, 1921 (41 Stat., 1360). Sec. 4. If two or more persons conspire to violate the provisions of sec- tions two or three of this title, and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as in said sections provided in the case of the domg of the act the accomplishment of which is the object of such conspiracy. Except as above provided conspiracies to commit offenses under this title shall be pmiished as provided by section thirty-seven of the Act to codify, revise, and amend the penal laws of the United States approved March fourth, nineteen hundred and nine. Sec. 5. Whoever harbors or conceals any person who he loiows, or has reasonable groimds to believe or suspect, has committed, or is about to commit, an offense under this title shall be punished by a fine of not more than $10,000 or by imprisonment for not more than two years, or both. Sec. 6. The President in time of war or in case of national emergency may by proclamation designate any place other than those set forth in subsec- tion (a) of section one hereof in which anything for the use of the Army or Navy is being prepared or constructed or stored as a prohibited place for the purposes of this title: Provided, That he shall determme that information with respect thereto would be prejudicial to the national defense. Sec. 7. Nothing contamed in this title shall be deemed to limit the juris- diction of the general courts-martial, military commissions, or naval courts- martial under sections thirteen hundred and forty-two, thirteen hundred and forty-three, and sixteen hunded and twenty-four of the Revised Statutes as amended. 1484 Espionage Act. PL 3. STATUTES AT LARGE. June 15, 1917. Sec. 8. The provisions of this title shall extend to all Territories, posses- sions, and places subject to the jurisdiction of the United States whether or not contiguous thereto, and offenses under this title when committed upon the high seas or elsewhere within the admiralty and maritime jurisdiction of the United States and outside the terriiorial limits thereof shall be punishable hereunder. Sec. 9. The Act entitled "An Act to prevent the disclosure of national defense secrets," approved March third, nineteen hundred and eleven, is hereby repealed.— (40 Stat. 219, chap. 30.) Title II. VESSELS IN PORTS OF THE UNITED STATES. Section 1. Whenever the President by proclamation or Executive order declares a national emergency to exist by reason of actual or threatened war, insurrection, or mvasion, or disturbance or threatened disturbance of the mtcr- national relations of the United States, the Secretary of the Treasury may make, subject to the approval of the President, rules and regulations governing the anchorage and movement of any vessel, foreign or domestic, in the terri- torial waters of the United States, may mspect such vessel at any time, place guards thereon, and, if necessary in his opinion in order to secure such vessels from damage or injury, or to prevent damage or injury to any harbor or waters of the United States, or to secure the observance of the rights and obligations of the United States, may take, by and with the consent of the President, for such purposes, full possession and control of such vessel and remove therefrom the officers and crew thereof and all other persons not specially authorized by him to go or remain on board thereof. Withm the territory and waters of the Canal Zone the Governor of the Panama Canal, with the approval of the President, shall exercise all the powers conferred by this section on the Secretary of the Treasury. Sec. 2. If any owner, agent, master, officer, or person m charge, or any member of the crew of any such vessel fails to comply with any regulation or rule issued or order given by the Secretary of the Treasury or the Governor of the Panama Canal under the provisions of this title, or obstructs or interferes with the exercise of any power conferred by this title, the vessel, together with her tackle, apparel, furniture, and ec^uipment, shall be subject to seizure and forfeiture to the United States in the same manner as merchandise is forfeited for violation of the customs revenue laws; and the person guilty of such failure, obstruction, or interference shall be fined not more than $10,000, or imprisoned not more than two years, or both. Sec. 3. It shall be unlawful for the owner or master or any other person in charge or command of any private vessel, foreign or domestic, or for any member of the crew or other person, within the territorial waters of the United States, willfully to cause or permit the destruction or injury of such vessel or knowingly to permit said vessel to be used as a place of resort for any person conspiring with another or preparing to commit any offense against the United States, or in violation of the treaties of the United States or of the obligations of the United States under the law of nations, or to defraud the United States, 1485 June 15, 1917. Pt. S. STATUTES AT LARGE. Espionage Act. or knowingly to permit such vessels to be used in violation of the rights and obligations of the United States under the law of nations ; and in case such vessel shall be so used, with the knowledge of the owner or master or other person in charge or command thereof, the vessel, together with her tackle, apparel, fur- niture, and equipment, shall be subject to seizure and forfeiture to the United States in the same manner as merchandise is forfeited for violation of the customs revenue laws; and whoever violates this section shall be fined not more than $10,000 or imprisoned not more than two years, or both. Sec. 4. The President may employ such part of the land or naval forces of the United States as he may deem necessary to carry out the purpose of this title.— (40 Stat., 220, chap. 30.) Title V. ENFORCEMENT OF NEUTRALITY. Section 1. During a war in which the United States is a neutral nation, the President, or any person thereunto authorized by him, may withhold clear- ance from or to any vessel, domestic or foreign, which is required by law to secure clearance before departing from port or from the jurisdiction of the United States, or, by service of formal notice upon the owner, master, or per- son in command or having charge of any domestic vessel not required by law to secure clearances before so departing, to forbid its departure from port or from the jurisdiction of the United States, whenever there is reasonable cause to believe that any such vessel, domestic or foreign, whether requiring clearance or not, is about to carry fuel, arms, ammunition, men, supplies, dispatches, or information to any warship, tender, or supply ship of a foreign belligerent nation in violation of the laws, treaties, or obligations of the United States under the law of nations; and it shall thereupon be unlawful for such vessel to depart.— (40 Stat., 221, chap. 30.) See Criminal Code, act of March 4, 1909, sections 9-18 (35 Stat., 1089-1091), for "offenses against neutrality." Sec. 2. During a war in which the United States is a neutral nation, the President, or any person thereunto authorized by him, may detain any armed vessel owned wholly or in part by American citizens, or any vessel, domestic or foreign (other than one which has entered the ports of the United States as a pubhc vessel), which is manifestly built for warlike purposes or has been con- verted or adapted from a private vessel to one suitable for warlike use, until the owner or master, or person having charge of such vessel, shall furnish proof satisfactory to the President, or to the person duly authorized by him, that the vessel will not be employed by the said owners, or master, or person having charge thereof, to cruise against or commit or attempt to commit hostilities upon the subjects, citizens, or property of any foreign prince or state', or of any colony, district, or people with which the United States is at peace, and that the said vessel will not be sold or delivered to any belligerent nation, or to an agent, officer, or citizen of such nation, by them or any of them, within the jurisdiction of the United States, or, having left that jurisdiction, upon the high seas.— (40 Stat., 221-222, chap. 30.) 1486 Espionage Act. Pt. S. STATUTES AT LARGE. June 15, 1917. Sec. 3. During a war in which the United States is a neutral nation, it shall be unlawfiil to send out of the jurisdiction of the United States any vessel built, armed, or equipped as a vessel of war, or converted from a private vessel into a vessel of war, with any intent or under any agreement or contract, written or oral, that such vessel shall be delivered to a belligerent nation, or to an agent, officer, or citizen of such nation, or with reasonable cause to believe that the said vessel shall or will be employed in the service of any such belligerent nation after its departm*e from the jurisdiction of the United States. Sec. 4. Dming a war in which the United States is a neutral nation, in addition to the facts required by sections forty-one hundred and ninety-seven, forty-one hundred and ninety-eight, and forty-two hundred of the Revised Statutes to be set out in the masters' and shippers' manifests before clearance will be issued to vessels bound to foreign ports, each of which sections of the Revised Statutes is hereby declared to be and is continued in full force and effect, every master or person having charge or command of any vessel, domestic or foreign, whether requiring clearance or not, before departure of such vessel from port shall deliver to the collector of customs for the district wherein such vessel is then located a statement duly verified by oath, that the cargo or any part of the cargo is or is not to be delivered to other vessels in port or to be transshipped on the high seas and, if it is to be so delivered or transshipped, stating the kind and quantities and the value of the total quantity of each kind of article so to be delivered or transshipped, and the name of the person, corpora- tion, vessel, or government, to whom the delivery or transshipment is to be made; and the owners, shippers, or consignors of the cargo of such vessel shall in the same manner and under the same conditions deliver to the collector like statements under oath as to the cargo or the parts thereof laden or shipped by them, respectively. Sec. 5. Whenever it appears that the vessel is not entitled to clearance or whenever there is reasonable cause to believe that the additional statements imder oath required in the foregoing section are false, the collector of customs for the district in which the vessel is located may, subject to review by the Secretary of Commerce, refuse clearance to any vessel, domestic or foreign, and by formal notice served upon the owners, master, or person or persons in com- mand or charge of any domestic vessel for which clearance is not required by law, forbid the departure of the vessel from the port or from the jurisdiction of the United States ; and it shall thereupon be imlawf ul for the vessel to depart. Sec. 6. Whoever, in violation of any of the provisions of this title, shall take, or attempt or conspu-e to take, or authorize the taking of any such vessel, out of port or from the jurisdiction of the United States, shall be fined not more than $10,000 or imprisoned not more than five years, or both; and, in addition, such vessel, her tackle, apparel, furniture, equipment, and her cargo shall be forfeited to the United States.— (40 Stat., 222, chap. 30.) Sec. 7. Whoever, being a person belonging to the armed land or naval forces of a belligerent nation or belligerent faction of any nation and being interned in the United States, in accordance with the law of nations, shall leave or attempt to leave said jurisdiction, or shall leave or attempt to leave the limits of internment in which freedom of movement has been allowed, without 1487 June 15, 1917. Pt. S. STATUTES AT LARGE. Espionage Act. permission from the proper official of the United States in charge, or shall will- fully overstay a leave of absence granted by such official, shall be subject to arrest by any marshal or deputy marshal of the United States, or by the military or naval authorities thereof, and shall be returned to the place of internment and there confined and safely kept for such period of time as the official of the United States in charge shall direct; and whoever, within the jurisdiction of the United States and subject thereto, shall aid or entice any interned person to escape or attempt to escape from the jurisdiction of the United States, or from the limits of internment prescribed, shall be fined not more than $1,000 or imprisoned not more than one year, or both. * * * Sec. 9. That the President may employ such part of the land or naval forces of the United States as he may deem necessary to carry out the purposes of this title. * * * Sec. 11. The joint resolution approved March fourth, nineteen hundred and fifteen, "To empower the President to better enforce and maintain the neutrality of the United States," and any Act or parts of Acts in conflict with the provisions of this title are hereby repealed. — (40 Stat.. 223, chap. 30.) Title VI. SEIZURE OF ARMS AND OTHER ARTICLES INTENDED FOR EXPORT. Section 1. Whenever an attempt is made to export or ship from or take out of the United States, any arms or munitions of war, or other articles, in violation of law, or whenever there shall be known or probable cause to believe that any such arms or munitions of war, or other articles, are being or are in- tended to be exported, or shipped from, or taken out of the United States, in violation of law, the several collectors, naval officers, surveyors, inspectors of customs, and marshals, and deputy marshals of the United States, and every other person duly authorized for the purpose by the President, may seize and detain any articles or munitions of war about to be exported or shipped from, or taken out of the United States, in violation of law, and the vessels or vehicles containing the same, and retain possession thereof until released or disposed of as hereinafter directed. If upon due inquiry as hereinafter provided, the property seized shall appear to have been about to be so unlawfully exported, shipped from, or taken out of the United States, the same shall be forfeited to the United States * * *.— (40 Stat., 223-224, chap. 30.) Sec. 6. Except in those cases in which the exportation of arms and muni- tions of war or other articles is forbidden by proclamation or otherwise by the President, as provided in section one of this title, nothing herein contained shall be construed to extend to, or interfere with any trade in such commodities, conducted with any foreign port or place wheresoever, or with any other trade which might have been lawfully carried on before the passage of this title, under the law of nations, or under the treaties or conventions entered into by the United States, or under the laws thereof * * *. — (40 Stat., 225, chap. 30.) Sec. 8. The President may employ such part of the land or naval forces of the United States as he may deem necessary to carry out the purposes of this title * * *.— (40 Stat., 225, chap. 30.) 1488 Espionage Act. Ft. 3. STATUTES AT LARGE. June 15, 1917. Title X. COUNTERFEITING GOVERNMENT SEAL. Section 1. Whoever shall fraudulently or wrongfully affix or impress the seal of any executive department, or of any bureau, commission, or office of the United States, to or upon any certificate, instrument, commission, docu- ment, or paper of any description; or whoever, with knowledge of its fraudu- lent character, shall with wrongful or fraudulent intent use, buy, procure, sell, or transfer to another any such certificate, instrument, commission, document, or paper, to which or upon which said seal has been so fraudulently affixed or impressed, shall be fined not more than $5,000 or imprisoned not more than five years, or both.— (40 Stat., 227-228, chap. 30.) Sec. 2. Whoever shall falsely make, forge, counterfeit, mutUate, or alter, or cause or procure to be made, forged, counterfeited, mutilated, or altered, or shall willingly assist in falsely making, forging, counterfeiting, mutilating, or altering, the seal of any executive department, or any bureau, commission, or office of the United States, or whoever shall knowingly use, affix, or impress any such fraudulently made, forged, counterfeited, mutilated, or altered seal to or upon any certificate, instrument, commission, document, or paper, of any description, or whoever with wrongful or fraudulent intent shall have pos- session of any such falsely made, forged, counterfeited, mutilated, or altered seal, knowing the same to have been so falsely made, forged, counterfeited, mutilated, or altered, shall be fined not more than S5,000 or imprisoned not more than ten years, or both. Sec. 3. Whoever shall falsely make, forge, counterfeit, alter, or tamper with any naval, military, or official pass or permit, issued by or under the authority of the United States, or with wrongfid or fraudulent intent shall use or have in his possession any such pass or permit, or shall personate or falsely represent himself to be or not to be a person to whom such pass or permit has been duly issued, or shall wfilfully allow any other person to have or use any such pass or permit, issued for his use alone, shall be fined not more than $2,000 or impris- oned not more than five years, or both * * *. — (40 Stat., 228, chap. 30.) Title XII. USE OF MAILS. Section 1. Every letter, writing, circular, postal card, picture, print, engraving, photograph, newspaper, pamphlet, book, or other publication, matter or thing, of any kind, in violation of any of the provisions of this Act is hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier: Provided, That nothing in this Act shall be so construed as to authorize any person other than an employee of the Dead Letter Office, duly authorized thereto, or other per- son upon a search warrant authorized by law, to open any letter not addressed to himself. Sec. 2. Every letter, writing, circular, postal card, picture, print, engrav- ing, photograph, newspaper, pamphlet, book, or other publication, matter 1489 July 2, 1917. Pi. S. STATUTES AT LAIiGE. or thing, of any kind, containing any matter advocating or urging treason, insurrection, or forcible resistance to any law of the United States, is hereby declared to be nonmailable. — (40 Stat., 230, chap. 30.) Sec. 3. Whoever shall use or attempt to use the mails or Postal Service of the United States for the transmission of any matter declared by this title to be nonmailable, shall be fined not more than $5,000 or imprisoned not more than five years, or ])oth. Any person violating any provision of this title may be tried and punished either in the district in which the unlawful matter or publication was mailed, or to which it was carried by mail for delivery according to the direction thereon, or in which it was caused to be delivered by mail to the person to whom it was addressed. — (40 Stat., 230-231, chap., 30.) By act of May 16, 1918 (,40 Stat., 554), a new section, numbered 4, was added to this title, denying the use of the mails to any person \doIating this act; which said amendatory act was repealed by Joint Resolution of March 3, 1921 (41 Stat., 1360). See Criminal Code, March 4, 1909, section 189-230 (35 Stat., 1124-1134), for "offenses against the postal service." Title XIII. GENERAL PROVISIONS. Section 1. The term "United States" as used in this Act includes the Canal Zone and all territory and waters, continental or insular, subject to the jurisdiction of the United States. * * * — (40 Stat., 231, chap. 30.) [1917, July 2. Condemnation of lands for military purposes.] That hereafter the Secretary of War may cause proceedings to be instituted in the name of the United States, in any court having jurisdiction of such proceedings for the acquirement by condemnation of any land, temporary use thereof or other interest therein, or right pertaining thereto, needed for the site, location, construction, or prosecution of works for fortifications, coast defenses, military training camps, and for the construction and operation of plants for the pro- duction of nitrate and other compounds and the manufacture of explosives and other munitions of war and for the development and transmission of power for the operations of such plants; such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instituted : Provided, That wheii the owner of such land, interest, or rights pertaining thereto shall fix a price for the same, which in the opinion of the Secretary of War shall be reason- able, he may purchase or enter into a contract for the use of the same at such price without further delay: Provided further, That the Secretary of War is hereby authorized to accept on behalf of the United States donations of land and the interest and rights pertaining thereto required for the above-men- tioned purposes: And provided further, That when such property is acquired in time of war, or the imminence thereof, upon the filing of the petition for the condemnation of any land, temporary use thereof or other interest therein or right pertaining thereto to be acquired for any of the purposes aforesaid, immediate possession thereof may be taken to the extent of the interest to be acquired and the lands may be occupied and used for military purposes, and the provision of section three hundred and fifty-five of the Revised Statutes, providing that no public money shall be expended upon such land until the 1490 PL 3. STATUTES AT LARGE. Oct. 6, 1917. written opinion of the Attorney General shall be had in favor of the validity of the title, nor until the consent of the legislature of the State in which the land is located has been given, shall be, and the same are hereby, suspended during the period of the existing emergency. — (40 Stat., 241, chap. 35; 40 Stat., 518-519, chap. 51.) This act was expressly amended and reenacted to read as above by act of April 11^ 1918 (40 Stat., 518-519); as so amended, it was extended to the Navy for certain pur- poses by act of July 9, 1918 (40 Stat., 888). See acts of August 1, 1888 (25 Stat., 357), and June 3, 1916, section 124 (39 Stat., 215). [1917, July 9. Public Health Service, subject to Navy laws, etc.] That when officers of the United States Public Health Service are serving on Coast Guard vessels in time of war, or are detailed in time of war for duty with the Army or Navy in accordance with law, they shall be entitled to pensions for themselves and widows and children, if any, as are now provided for officers of corresponding grade and' length of service of the Coast Guard, Army or Navy, as the case may be, and shall be subject to the laws prescribed for the government of the service to which they are respectively detailed. — (40 Stat., 242, chap. 37, Pub. Res. No. 9.) See acts of July 1, 1902, section 4 (32 Stat., and October 6, 1917 (40 Stat., 393); and 713), February 3, 1905 (33 Stat., 650-651), see note to section 1368, Revised Statutes. [1917, Oct. 6, sec. 6. Transfer of employees from executive departments to independent establishments, etc.] That section five of the Act of June twenty-second, nineteen hundi-ed and six, prohibiting the transfer of employees from one executive department to another, shall apply with equal force and effect to the transfer of employees from executive departments to mdependent establishments and vice versa and to the transfer of employees from one inde- pendent establishment to another: Provided, That the United States Shipping Board Emergency Fleet Corporation shall be considered a Government estab- lishment for the purposes of this section. — (40 Stat., 383, chap. 79.) See act of June 22, 1906, section 5 (34 Stat., 449) act of August 26, 1912, section 7 (37 Stat. 626), as amended and reenacted by act of March 4, 1913, section 4 (37 Stat., 790) act of March 28, 1918, section 2 (40 Stat., 498), and notes to sections 169 and 416, Revised Statutes; see also next section of this act, set forth below. [1917, Oct. 6, sec. 7. Lump-sum employees; restrictions on pay of.] That no civil employee in any of the executive departments or other Government estabhshments, or who has been employed therein within the period of one year next preceding his proposed employment in any other executive department or other Government establishment, shall be employed hereafter and paid from a lump-sum appropriation in any other executive department or other Gov- ernment establishment at an increased rate of compensation. And no civil employee in any of the executive departments or other Government establish- ments or who has been employed therein within the period of one year next preceding his proposed employment in any other executive department or other Government establishment and who may be employed in another executive, department or other Government estabhshment shall be granted an increase in compensation within the period of one year following such reemployment: Provided, That the United States Shipping Board Emergency Fleet Corporation shall be considered a Government establishment for the 1491 Oct. 6, 1917. PL S. STATUTES AT LARGE. purposes of this section: Provided further, That this section shall not be con- strued to repeal section five of the Act of June twenty-second, nineteen hundred and six, which prohibits the transfer of employees from one department to another.— (40 Stat., 383-384, chap. 79.) See precedins; section of this act, set forth anove, and references thereunder. By act of March 28, 1918, section 2 (40 Stat., 498), this section was extended to include all branches of the government of the District of Columbia. [1917. Oct. 6. Explosives, manufacture and possession in time of war restricted ; use of public officers to enforce.] Sec. 2. * * * That nothing herein contained shall be construed to prevent the manufacture, under the authority of the Government, of explosives for, their sale to or their possession by, the military or naval service of the United States of America. * * *. — (40 Stat., 386, chap. 83.) Sec. 21. That the Director of the Bureau of MLues, with the approval of the President, is hereby authorized to utilize such agents, agencies, and all officers of the United States and of the several States, Territories, dependencies, and municipalities thereof, and the District of Columbia, in the execution of this Act, and all agents, agencies, and all officers of the United States and of the several States and Territories, dependencies, and municipalities thereof, and the District of Columbia, shall hereby have full authority for all acts done by them in the execution of this Act when acting by the direction of the Bureau of Mines.— (40 Stat., 389, chap. 83.) [1917, Oct. 6. Reimbursement of naval personnel for lost or damaged property]. That the PajTnaster General of the Navy be, and he is hereby, authorized and directed to reimburse such officers, enlisted men, and others in the navel service of the United States as may have suffered, or may hereafter suffer, loss or destruction of or damage to their personal property and effects in the naval service due to the operations of war or by shipwTeck or other marine disaster when such loss, destruction, or damage was without fault or negligence on the part of the claimant, or where the private property so lost, destroyed, or damaged was shipped on board an unseaworthy vessel by order of an officer authorized to give such order or direct such shipment, or where it appears that the loss, destruction, or damage of or to the private property of the claimant was in consequence of his having given his attention to the saving of the lives of others or of property belonging to the United States which was in danger at the same time and under similar circumstances. And the liability of the Government under this Act shall be limited to such articles of personal property as the Chief of the Bureau of Navigation of the Navy Department, with refer- ence to the personnel of the Navy, or the major general commandant of the Marine Corps, with reference to the persormel of that corps, in his discretion, shall decide to be reasonable, useful, and proper for such officer, enlisted man, or other person while engaged in the public service in line of duty, and the certificate of said chief of bureau or major general commandant, as the case may be, shall be sufficient voucher for and shall be final as to all matters necessary to the establishment and payment or settlement of any claim filed hereunder; and the action of the said chief of bureau or major general com- mandant, as the case may be, upon all claims arising under this Act shall be final, and no right to prosecute a claim or action in the Court of Claims or in 1492 PL 3. STATUTES AT LARGE. Oct. 6, 1917. any other court of the United States, or before any accountmg officer of the United States, or elsewhere, except as herein provided, shall accrue to any person by virtue of this Act: Provided, That the liability of the Government under this Act shall be limited to such articles of personal property as are re- quired by the United States Naval Kegulations and in force at the time of loss or destruction for such officers, petty officers, seamen, or others engaged in the public service in the line of duty : Provided further, That with reference to claims of persons in the Marine Corps filed under the terms of this Act the paymaster of the Marine Corps shall make the reimbursement in money, and the quarter- master of the Marine Corps shall make the reimbursement in kind herein provided for : And provided further, That all claims now existing under this Act shall be presented within two years from the passage hereof and not thereafter; and all such claims hereafter arising shall be presented within two years from the occurrence of the loss, destruction, or damage: And provided further, That the term "in the naval service," as herein employed, shall be held to include service performed on board any vessel, whether of the Navy or not, provided the claimant is serving on such vessel pursuant to the orders of duly constituted naval authority: And provided further, That all claimants under this Act shall be required to submit their claims in writing and under oath to the said Chief of the Bureau of Navigation or major general commandant, as the case may be: And provided further, That claims arising in the manner indicated in this Act and which have been settled under the terms of previously existing law shall be regarded as finally determined and no other or further right of recovery under the provisions hereof shall accrue to persons who have submitted such claims as aforesaid : And provided further. That sections two hundred and eighty-eight, two hundred and eighty-nine, and two hundred and ninety. Revised Statutes, and the Act of March second, eighteen hundred and ninety-five (Twenty-eighth Statutes, page nine hundred and sixty-two), are hereby repealed: And provided further, That reimbursement for loss, destruction, or damage sustained and determined as herein provided shall be made in kind for such articles as are customarily issued to the service and shall be made in money for other articles at the valuation thereof at the time of their loss, destruction, or damage : And provided further, That in cases involving persons in the Navy reimbursement in money shall be made from the appropria- tion "Pay of the Navy," and reimbursement in kind shall be made from the appropriation "Outfits on first enlistment," and in cases involving persons in the Marine Corps reimbursement in money shall be made from the appro- priation "Pay, Marine Corps," and reimbursement in kind shall be made from the appropriation "Clothing, Marine Corps," respectively, current at the time the claim covering such loss, damage, or destruction is paid: And provided further, That the provisions of this Act shall apply to the personnel of the Coast Guard in like manner as to the personnel of the Navy, whether the Coast Guard is operating under the Treasury Department or operating as a part of the Navy, and all of the duties, which, under this Act, devolve upon the major general commandant of the Marine Corps with reference to the personnel of that corps, shall devolve upon the captain commandant of the Coast Guard, and in cases involving persons in the Coast Guard reimbursement in money 1493 Oct. 6, 1917. PL S. STATUTES AT LARGE. shall be made by a disbursing ofTicer of the Coast Guard from the appropriation ■'Coast Guard" and reimbursement in kind shall be made by the captain commandant from the appropriation "Coast Guard." — (40 Stat., 389-391, chap. 85.) See notes to sections 288-290, and 3689, Revised Statutes. [1917, Oct. 6. Officers of auxiliary naval forces eligible for court-martial duty.] That when actively serving under the Navy Department in time of war or during the existence of an emergency, pursuant to law, as a part of the naval forces of the United States, commissioned officers of the Naval Reserve Force, Marine Corps Reserve, National Naval Volunteers, Naval Militia, Coast Guard, Lighthouse Service, Coast and Geodetic Survey, and Public Health Service are hereby empowered to serve on naval courts-martial and deck courts under such regulations necessary for the proper administration of justice and in the interests of the services involved, as may be prescribed by the Secretary of the Navy. * * * And provided further, That any Act or parts of Acts in conflict with the provisions hereof are hereby repealed. — (40 Stat., 393-394, chap. 93.) All laws relating to the Naval Militia and the National Naval Volunteers were repealed by act of July 1, 1918 (40 Stat., 708); some proA-isions of law relating to the Naval Militia were revived, until June 30, 1922, by act of June 4, 1920 (41 Stat., 817). The omitted portions of this act specifically re- pealed certain prior laws relating to the Naval Militia and National Naval Volun- teers. See note to section 1363, Revised Statutes, and laws there cited. [1917, Oct. 6. Publication of inventions in time of war restricted; use of by Government.] That whenever during a time when the United States is at war the publication of an invention by the granting of a patent might, in the opinion of the Commissioner of Patents, be detrimental to the public safety or defense or might assist the enemy or endanger the successful prosecution of the war he may order that the invention be kept secret and withhold the grant of a patent until the termination of the war: Provided, That the invention disclosed in the application for said patent may be held abandoned upon it being established before or by the commissioner that in violation of said order said invention has been published or that an application for a patent therefor has been filed in a foreign country by the inventor or his assigns or legal representatives, without the consent or approval of the Commissioner of Patents, or under a license of the Secretary of Commerce as provided by law. When an applicant whose patent is withheld as herein provided and who faithfully obeys the order of the Commissioner of Patents above referred to shall tender his invention to the Government of the United States for its use, he shall, if and when he ultimately received a patent, have the right to sue for compensation in the Court of Claims, such right to compensation to begin from the date of the use of the invention by the Government. — (40 Stat., 394-395, chap. 95.) See section 4894, Revised Statutes, and refer- "Trading with the enemy Act" of October ences thereunder. 6, 1917, section 10 (i) (40 Stat., 422). Similar provisions were contained In the [1917, Oct. 6. Ratings and pay of enlisted men in the Navy.] That the ratings of engineman, first class, engineman, second class; blacksmith, first 1494 War Risk Act. Pt. 3. STATUTES AT LARGE. Oct. 6, 1917. class, blacksmith, second class; coppersmith, first class, coppersmith, second class; pattern maker, first class, pattern maker, second class; molder, first class, molder, second class ; chief special mechanic and special mechanic, first class, be, and they are hereby, established in the artificer branch of the Navy with the following rates of base pay per month: Engineman, first class, S45; engineman, second class, $40; blacksmith, first class, $65; blacksmith, second class, $50; coppersmith, first class, $65; coppersmith, second class, $50; pattern maker, first class, $65; pattern maker, second class, $50; molder, first class, $65; molder, second class, $50; chief special mechanic, $127; special mechanic, first class, $80: Provided, That the base pay of machinists' mates, second class, and water tenders be, and it is hereby, increased from $40 to $45 per month: Provided further, That all the aforesaid rates of pay shall be subject to such increases of pay and allowances as are, or may hereafter be, authorized by law for enlisted men of the Nary: And provided further , That appointments or enlistments in the said ratings may be made from enlisted men in the Navy or from civil life, respec- tively, and the qualifications of candidates for any of said ratings shall be de- termined in accordance with such regulations as the Secretary of the Navy may prescribe.— (40 Stat., 397, chap. 103.) See note to section 1569, Re\ised Statutes, for later laws as to the ratings and pay of enlisted men. [1917, Oct. 6. War Risk Insurance; allotments; compensation for death or disability; insurance.] That the first section of the Act entitled ''An Act to authorize the establisliment of a Bureau of War Risk Insurance in the Treasury Department," approved September second, nineteen hundred and fourteen., as amended, is hereby amended to read as follows: "Article I. "Section 1. That there is established in the Treasury Department a Bureau to be known as the Bureau of War Risk Insurance * * *." — (40 Stat., 398, chap. 105.) Sec. 2. That such Act of September second, nineteen hundred and four- teen, as amended, is hereby amended by adding new sections, as follows : * * * "Sec. 13. [Powers of director.] That the director, subject to the general direction of the Secretary of the Treasury, shall administer, execute, and enforce the provisions of this Act, and for that purpose have full power and authority to make rules and regulations not inconsistent with the provisions of this Act, necessary or appropriate to carry out its purposes, and shall decide all questions arising under the Act, except as otherwise provided in section five * * *.— (40 Stat., 399, chap. 105; 40 Stat., 555, chap. 77.) Section 13 is reproduced above as reenacted by act of May 20, 1918 (40 Stat., 555). See note to section 471, Revised Statutes. "Sec. 14. [Assistance of navy surgeons.] * * * ^he bureau shall, by arrangement with the Secretary of War and the Secretary of the Navy, respec- tively, make use of the services of surgeons in the Army and Navy. * * *." — (40 Stat., 399, chap. 105.) "Sec. 15. [Reports by executive departments.] * * * The director may obtain such information and such reports from officials and employees of 1495 Oct. 6, 1917 Pi. STATUTES AT LARGE. War Risk Act. the departments of the Government of the United States and of the States as may be agreed upon by the heads of the respective departments. * * *." — (40 Stat., 399, chap. 105.) "Sec. 22. [Definitions.] * * * In Articles 11, III, and IX of this Act unless the context otherwise requires — * * * '' (G) The term 'commissioned officer' includes a warrant officer, but includes onl}^ an officer in active service in the military or naval forces of the United States. " (7) The terms 'man' and 'enlisted man' mean a person, whether male or female, and whether enlisted, enrolled, or di'afted into active service in the military or naval forces of the United States, and include noncommissioned and petty officers, and members of training camps authorized by law. "(8) The term 'enlistment' includes voluntary enlistment, draft, and enrollment in active service in the military or naval forces of the United States. " (10) The term 'injury' includes disease. "(11) The term 'pay' means the pay for service in the United States according to grade and length of service, excluding all allowances. " (12) The. term 'military or naval forces' means the Army, the Navy, the Marine Corps, the Coast Guard, the Naval Reserves, the National Naval Vol- unteers, and any other branch of the United States service while serving pur- suant to law with the Army or the Navy." — (40 Stat., 401-402, chap. 105.) "Sec. 28. [Benefits not assignable, nor subject to debts, etc.; EXCEPTION.] That the allotments and family allowances, compensation, and insurance payable under Articles II, III, and IV, respectively, shall not be assignable; shall not be subject to the claims of creditors of any person to whom an award is made under Articles II, III, or IV; and shall be exempt from all taxation : Provided, That such allotments and family allowances, compensa- tion, insurance shall be subject to any claims which the United States may have, under Articles II, III, and IV, against the person on whose account the allotments and family allowances, compensation, or insurance is payable." — (40 Stat., 402, chap. 105; 40 Stat., 609, chap. 104.) This section was added, by act of Jvme 25, 1918 (40 Stat., 609), to the act of September 2, 1914, as amended by act of October 6, 1917 (40 Stat., 402). By act of December 24, 1919, section G (41 Stat., 372), it was provided "that the provisions of section 28 of the war Risk Insurance Act K I shall not be construed to prohibit the assic:nment by any person to whom con- verted insurance shall be payable under Article IV of such Act of his interest in such insurance to any other member of the permitted class of beneficiaiies." Sec. 29. [Discharge or dismissal for cause bar to benefits.] That the discharge or dismissal of any person from the military or naval forces on the ground that he is an enemy alien, conscientious objecter, or a desertor, or as guilty of mutiny, treason, spying, or any offense involving moral turpitude, or willful and persistent misconduct shall terminate any insurance granted on the life of such person under the provisions of Article IV, and shall bar all rights to any compensation under Article III or any insurance under Article IV."— (40 Stat., 402, chap. 105; 40 Stat., 609-610. chap. 104.) This section was added, by act of June 25, 1918 (40 Stat., 609), to the act of September 2, 1914 as amended by act of October 6, 1917 (40 Stat., 402). 1496 War Risk Act. Ft. 3. STATUTES AT LARGE. Oct. 6, 1917. Article IT. ALLOTMENTS AND FAMILY ALLOWANCES. Sec. 200. [Persons included by article.] That the provisions of this article shall apply to all enlisted men in the military or naval forces of the United States, except the Philippine Scouts, the insular force of the Navy, and the Samoan native guard and band of the Navy. — (40 Stat., 402, chap. 105; 40 Stat., 610, chap. 104.) This section of the Act of October 6, 1917, was reenacted to read as above by act of June 25, 1918, section 3 (40 Stat., GIO). Sec. 202. [Voluntary allotments of pay. — That the enlisted man may allot any proportion or proportions or any fixed amount or amounts of his monthly pay or of the proportion thereof remaining after the compulsory allotment, for such purposes and for the benefit of such person or persons as he may direct, subject, however, to such conditions and limitations as may be prescribed under regulations to be made by the Secretary of War and the Secre- tary of the Navy, respectively. — (40 Stat., 403, chap. 105.) enlisted man reported as missins; in action shall be considered as occupying a pay status until his actual status has been de- termined by proper official authority of the department in which the man served or is serving: Provided, That payments authorized hereunder shall not continue for more than one year." The pro\T.sions of this act, section 201, as to "compulsory allotments," are omitted as temporary. See also section 211, below, as to voluntary allotments. By act of November 4, 1918 (40 Stat., 1024), it was pro\ided that "for the purpose of the pajTuent of allotments made by the en- listed men * * * under Article II of the Act of October 6, 1917, as amended, an Sec. 203. [Compulsory deposit of unallotted pay.] That in case one- half of an enlisted man's monthly pay is not allotted, regulations to be made by the Secretary of War and the Secretary of the Navy, respectively, may require, under circumstances and conditions as may be prescribed in such regulations, that an}" proportion of such one-half pay as is not allotted shall be deposited to his credit, to be held during such period of his service as may be prescribed. Such deposit shall bear interest at the same rate as United States bonds bear for the same period, and, when payable, shall be paid principal and interest to the enlisted man, if living, otherwise to any beneficiary or beneficiaries he may have designated, or if there be no such beneficiary, then to the person or persons who, under the laws of the State of his residence, would be entitled to his per- sonal property in case of intestacy. — (40 Stat., 403, chap. 105; 40 Stat., 610, chap. 104.) This section of the act of October 6, 1917, was reenacted to read as above by act of June 25, 1918, section 5 (40 Stat., 610). Sec. 211. [All allotments to be voluntary; payment by war risk bureau discontinued.] That all family allowances and allotments payable by the Bureau of War Risk Insurance under the authority of this article shall be discontinued at the end of the fourth calendar month after the termination of the present war emergency, as declared by proclamation of the President of the United States, and thereafter all allotments of pay shall be voluntary and shall be made under such regulations as may be prescribed by the Secretary of War and the Secretary of the Navy, respectively. — (40 Stat., 405, chap. 105; 41 Stat., 372, chap. 16.) 1497 Oct. 6, 1917. PL 3. STATUTES AT LARGE. War Risk Act. This section was added to the act of October 6, 1917 (40 Stat., 405), by act of December 24, 1919, section 9 (41 Stat., 372). By section 209 of this act, pajTnents of allot- ments were to be made through the Bureau of War Risk Insurance. 1556, 1575, and 1576, and notes thereto. See sections 1430, Revised Statutes, Article III. COMPENSATION FOR DEATH OR DISABILITY. Sec. 300. [Cases in which compensation allowed.] That for death or disability resulting from personal injury suffered or disease contracted in the line of duty, by any commissioned officer or enlisted man, or by any member of the Army Nurse Corps (female) or of the Navy Nurse Corps (female) when employed in the active service under the War Department or Navy Department, the United States shall pay compensation as hereinafter provided; but no com- pensation shall be paid if the injury or disease has been caused by his own will- ful misconduct: Provided, That for the purposes of this section said officer, enlisted man, or other member shall be held and taken to have been in sound condition when examined, accepted, and enrolled for service: Provided further, That this section, as amended, shall be deemed to become effective as of April 6, 1917.— (40 Stat., 405. chap. 105; 41 Stat., 373, chap. 16.) This section of the act of October 6, 1917, was reenacted to read as above by act of Decem- ber 24, 1919, section 10a (41 Stat., 373); it had pre\dously been reenacted by act of June 25, 1918, section 10 (40 Stat., 611). Termination of war does not affect the compensation provisions of this act, which continue in effect. (22 Op. Atty. Gen., 538.) Sec. 301. [Burial expenses.] * * * if death occur or shall have occurred subsequent to April 6, 1917, and before discharge or resignation from service, the United States shall pay for burial expenses and the return of body to his home a sum not to exceed $100, as may be fixed by regulations. * * * — (40 Stat., 405, chap. 105; 41 Stat., 372, chap. 16.) 10 (41 Stat., 372); it had previously been reenacted by act of June 25, 1918 (40 Stat., 612). The above paragraph, which is a part of sub- division (g), section 301, act of October 6, 1917, was reenacted to read as above set forth by act of December 24, 1919, section Sec. 302. [Disability compensation, treatment, etc.] That if disa- bility results from the injury — (1) If and while the disability is rated as total and temporary, the monthly compensation shall be the following amounts: (a) If the disabled person has neither wife nor child living, $80. (b) If he has a wife but no child living, $90. (c) If he has a wife and one child living, $95. (d) If he has a wife and two or more children living, $100. (e) If ho has no wife but one child living, $90, with $5 for each additional child. (f) If he has a mother or father, either or both dependent on him for sup- port, then, in addition to the above amounts, $10 for each parent so dependent. (2) If and while the disability is rated as partial and temporary, the monthly compensation shall be a percentage of the compensation that would be pay- able for his total and temporary disability, equal to the degree of the reduction 1498 War Risk Act. Pt. S. STATUTES AT LARGE. Oct. 6, 1917. in earning capacity resulting from the disability, but no compensation shall be payable for a reduction in earning capacity rated at less than 10 per centum. (3) If and while the disability is rated as total and permanent, the rate of compensation shall be $100 per month: Provided, however, That the loss of both feet, or both hands, or the sight of both eyes, or the loss of one foot and one hand, or one foot and the sight of one eye, or one hand and the sight of one eye, or becoming helpless and permanently bedridden, shall be deemed to be total, permanent disability: Provided, further. That for double total, permanent disa- bility the rate of compensation shall be S200 per month. (4) If and while the disability is rated as partial and permanent, the monthly compensation shall be a percentage of the compensation that would be payable for his total and permanent disability equal to the degree of the reduc- tion in earning capacity resulting from the disability, but no compensation shall be payable for a reduction in earning capacity rated at less than 10 per centum. * * * (5) If the disabled person is so helpless as to be in constant need of a nurse or attendant, such additional sum shall be paid, but not exceeding S20 per month, as the director may deem reasonable. (6) In addition to the compensation above provided, the injured person shall be furnished by the United States such reasonable governmental medical, surgical, and hospital services and mth such supplies, including wheeled chairs, artificial limbs, trusses, and similar appliances, as the director may determine to be useful and reasonably necessary, which wheeled chairs, artificial limbs, trusses, and similar appliances may be procured by the Bureau of War Risk Insurance in such manner, either by purchase or manufacture, as the director may determine to be advantageous and reasonably necessary: Provided, That nothing in this Act shall be construed to affect the necessary military control over any member of the military or naval establishments before he shall have been discharged from the military or naval service. (7) Where the disabled person and his wife are not living together, or where the children are not in the custody of the disabled person the amount of the compensation shall be apportioned as may be prescribed by regulations. (8) The term ''wife" as used in this section shall include ''husband" if the husband is dependent upon the mfe for support. * * * (10) That section 302 of the War Risk Insurance Act as amended shall be deemed to be in effect as of April 6, 1917: Provided, That any person who is now receiving a gratuity or pension under existing law shall not receive com- pensation under this Act unless he shall first surrender all claim to such gra- tuity or pension.— (40 Stat., 406, chap. 105; 41 Stat., 373-374, chap. 16.) This section of the act of October 6, 1917, was It had previously been amended by acts of reenacted"toreadasabovebvact of Decern- June 25, 1918 (40 Stat., 612-613), and Au- ber 24, 1919, section 11 (41 Stat., 373-374). gust 6, 1919 (41 Stat., 274). Sec. 303. [Medical examinations and treatment; refusal to sub- AUT.] That every person applying for or in receipt of compensation for dis- ability under the provisions of this article shall, as frequently and at such times and places as may be reasonably required, submit himself to examination by a medical officer of the United States or by a duly qualified physician designated or approved by the director. He may have a duly qualified physician desig- 54641°— 22 95 1499 Oct. 6, 1917. PI. 3. STATUTES AT LARGE. War Risk Act. nated and paid by him present to participate in such examination. For all examinations he shall, in the discretion of the director, be paid his reasonable traveling and other expenses and also loss of wages incurred in order to submit to such examination. If he refuses to submit himself for, or in any way ob- structs, any examination, his right to claim compensation under this article shall be suspended until such refusal or obstruction ceases. No compensation shall be payable while such refusal or obstruction continues, and no compensa- tion shall be payable for the intervening period. Every person in receipt of compensation for disability shall submit to any reasonable medical or surgical treatment furnished by the bureau whenever requested by the bureau; and the consequences of unreasonable refusal to submit to any such treatment shall not be deemed to result from the injury compensated for.— (40 Stat., 406-407, chap. 105.) Sec. 307. [Death to be officially recorded.] That compensation shall not be payable for death in the course of the service until the death be ofiicially recorded in the department under which he may be serving. No com- pensation shall be payable for a period during which the man has been reported ''missing" and a family allowance has been paid for him under the provisions of Ai'ticle II.— (40 Stat., 407, chap. 105.) See section 211, above, as to family allowance. Sec. 308. [Death for crime; dishonorable discharge.] That no com- pensation shall be payable for death inflicted as a lawful punishment for a crime or military offense except when inflicted by the enemy. A dismissal or dishonorable or bad conduct discharge from the service shall bar and terminate all i:ight to any compensation under the provisions of this article. — (40 Stat., 407, chap. 105.) See section 29, above, under Article I. Sec. 312. [Compensation excludes benefits under other laws.] That compensation under this article sliall not be paid wliile the person is in receipt of service or retirement pay. The laws providing for gratuities or pay- ments in the event of death in the service and existing pension laws shall not be applicable after the enactment of tliis amendment to any person in the active military t)r naval service on the sixth day of October, nineteen hundred and seventeen, or who tliereafter entered the active military or naval service, or to their widows, children, or their dependents, except in so far as rights under any such law have heretofore accrued. Compensation because of disability or death of members of the Army Nurse Corps (female) or of the Navy Nurse Corps (female) shall be in lieu of any compensation for such disability or death under tlie Act entitled ''An Act to provide compensation for employees of the United States suffering injuries while in the performance of their duties, and for other purposes," approved September seventh, nineteen hundred and sixteen. — (40 Stat., 408, chap. 105; 40 Stat., 613, chap. 104.) This section of the act of October 6, 1917, was reenacted to read as above by act of June 25, 1918, section 17 (40 Stat., 613). See also section 302, paragraph (10), above; and see note to act of June 4, 1920 (41 Stat., 824-825), relating to death gratuities, and note to section 4756, Revised Statutes, relating to service pensions. 1500 War Bisk Act. PL 3. STATUTES AT LARGE. Oct. 6, 1917. Article IV INSURANCE. Sec. 400. [Persons to whom applicable; amount.] That in order to give to every commissioned officer and enlisted man and to every member of the Army Nurse Corps (female) and of the Navy Nurse Corps (female) when em- ployed in active service under the War Department or Navy Department greater protection for themselves and their dependents than is provided in Ai-ticle III, the United States, upon application to the bureau and without medical examination, shall grant insurance against the death or total permanent disability of any such person in any multiple of $500, and not less than $1,000 or more than $10,000, upon the payment of the premiums as hereinafter pro- vided.— (40 Stat., 409, chap. 105.) Effect of termination of the war. — Any Any person entering the active service after person entering the active ser\-ice within five the expiration of five years fi'om the date of the years after the tennination of the war may be termination of the war may not apply for nor granted term insurance ]1ro^'iding he applies be granted war risk insurance. (32 Op. Atty. for it within 120 days after entering such service. Gen. , 538. ) But in order to retain such insurance it must See note above, under section 300 of this act be converted ^vithin five years from the date (40 Stat., 405). of the termination of the war. (32 Op. Atty. Gep., 538.) ! Sec. 401. [Time for making application.] That such insurance must be applied for within one hundred and twenty days after enlistment or after entrance into or employment in the active service and before discharge or resignation, except that those persons who are in the active war service at the time of the publication of the terms and conditions of such contract of insurance may apply at any time within one hundred and twenty days thereafter and while in such service * * *.— (40 Stat., 409, chap. 105; 41 Stat., 374-375, chap. 16.) reenacted by act of June 25, 1918 (40 Stat., 614). This section was reenacted to read as above by act of December 24, 1919, section 12 (41 Stat., 374-375'); it had pre^-iously been [1917, Oct. 6, sec. 3. Rank of brigadier generals.] That brigadier generals of the Army shall hereafter rank relatively with rear admirals of the lower half of the grade.— (40 Stat., 411, chap. 105.) See note to section 1466. Revised Statutes, under '•Relative rank of brigadier generals and rear admirals of the lower half." [1917, Oct. 6, sec. 10 (i). Publication of inventions in time of war restricted ; use of by Government.] Wlienever the publication of an invention by the granting of a patent may, in the opinion of the President, be detrimental to the public safety or defense, or may assist the enemy or endanger the successful prosecution of the war, he may order that the invention be kept secret and withhold the grant of a patent until the end of the war: Provided, That the invention disclosed in the application for said patent may be held abandoned upon it being established before or by the Commissioner of Patents that, in violation of said order, said invention has been published or that an application for a patent therefor has been filed in any other country, by the inventor or his assigns or legal representatives, without the consent or approval of the com- missioner or imder a ficense of the President. 1501 Mar. 28, 1918. PL .?. STATUTES AT LARGE. When i\\\ ;i})j)lk'aiit whose patent is withheld as herein provided and who faithfully obeys the order of the President above referred to shall tender his invention to the Government of the United States for its use, he shall, if he ultimately receives a patent, have the right to sue for compensation in the Court of Claims, such right to compensation to begin from the date of the use of the invention by the Government. — (40 Stat., 422, chap. 106.) Similar pro\'isions were contained in act of i See section 4894, Revised Statutes, and refer- October (i, 1917 (40 Stat., 394-395, chap. 95). j ences thereunder. The abo^•o ])aragi"a}ili was jiart of section 10 of the "Trading with the enemy Act." | [1917, Dec. 20. Number of midshipmen.] That hereafter there shall be al- lowed at the United States Naval Academy five midshipmen for each Senator, Representative, Delegate in Congress, and Resident Commissioner from Porto Rico, and five for the District of Columbia, fifteen appointed each year at large, and on3 hundred appointed annually from enlisted men of the Navy, and mem- bers of the Naval Reserve Force on active duty, as now authorized by law. Sec. 2. That all Acts or parts of Acts inconsistent with the provisions of this Act are hereby repealed. — (40 Stat., 430, chap. 5; 41 Stat., 140, chap. 9.) The first section of this act was expressly Qualifications for appointment of midshipmen amended and reenacted to read as above from enlisted men of the Navj' were pre- set forth by act of July 11, 1919 (41 Stat., scribed by act of March 4, 1917 (39 Stat 140). 1182). See note to section 1513, Re\dsed Statutes, for other laws relating to the number of midshipmen. [1918, Feb. 11. Dominican Republic; detail of naval personnel to assist.] That the President of the United States be, and he is hereby, authorized, in his discretion, to detail to assist the Domhiican Republic, officers and enlisted men of the United States Navy and the United States Marine Corps: Provided, That officers and enlisted men so detailed be, and they are hereby, authorized to accept from the Government of the Dominican Republic offices under said Government with compensation and emoluments from the said Dominican Republic, subject to the approval of the President of the United States: Pro- vided further, That while so detailed such officers and enlisted men shall receive, in addition to the compensation and emoluments allowed them by the Domin- ican Republic, the pay and allowances of their rank or rating in the United States Navy or United States Marine Corps, as the case may be, and they shall be entitled to the same credit, while so serving, for longevity, retirement, for- eign-service pay, and for all other purposes that they would receive if they were serving with the United States Navy or Marine Corps in said Dominican Republic— (40 Stat., 437, chap. 15.) See act of June 12, 1916 (39 Stat., 223), as to Haiti; joint resolution of October 13, 1914 (38 Stat., 780), as to IJrazil; and act of June 5, 1920 (41 Stat., 1056), as to all South American Republics; see also note to Constitution, Article I, section 9, clause 8. [1918, Mar. 28. Navy Building, supervision of.] The maintenance and protection of all of the foregoing temporary buildings when completed shall be under the supervision and direction of the superintendent of the State, War, and Navy Department Buildings. — (40 Stat., 483, chap. 28.) 1502 PL 3. STATUTES AT LARGE. Apr. 10, 1918. and temporary buildings for the War De- partment. See note to section 415, Re\dsed Statutes. This paragraph followed appropriations for the erection of a temporary office building for the Navy Department at Seventeenth and B Streets, in Potomac Park, D. C, [1918, Mar. 28, sec. 2. Lump-sum employees; restriction on pay of.] That all branches of the government of the District of Columbia shall be considered a governmental establishment for the purposes of section seven of the deficiency appropriation Act approved October sixth, nineteen hundred and seventeen. — (40 Stat., 498, chap. 28.) See act of October 6, 1917, section 7 (40 Stat., 383-384). [1918, Mar. 29. Deceased persons, naval service; disposition of effects.] That hereafter all moneys, articles of value, papers, keepsakes, and other similar effects belonging to deceased persons in the naval service, not claimed by their legal heirs or next of kin, shall be deposited in safe custody, and if any such moneys, articles of values, papers, keepsakes, or other similar effects so depos- ited have been, or shall hereafter be, unclaimed for a period of two years from the date of the death of such person, such articles and effects shall be sold and the proceeds thereof, together with the moneys above mentioned, shall be deposited in the Treasury to the credit of the Navy pension fund: Provided, That the Secretary of the Navy is hereby authorized and directed to make dili- gent mquiry in every instance after the death of such person to ascertain the whereabouts of his heirs or next of kin, and to prescribe such regulations as may be necessary to carry out the foregoing provisions: Provided further, That claims may be presented hereunder at any time within five years after such moneys or proceeds have been so deposited in the Treasury, and, when supported by competent proof in any case after such deposit in the Treasury, shall be certi- fied to Congress for consideration. — (40 Stat., 499, chap. 31.) See note to section 289, Revised Statutes ; see also act of May 27, 1908 ( 35 Stat. , 373). [1918, Apr. 2. Naval officers dropped for unauthorized absence, etc.] That the President is hereby authorized to drop from the rolls of the Navy or Marine Corps any officer thereof who is absent from duty without leave for a period of three months or more, or who, having been found guilty by the civil authori- ties of any offense, is finally sentenced to confinement in a State or Federal penitentiary: Provided, That no officer so dropped shall be eligible for reap- pointment. — (40 Stat., 501, chap. 39.) See sections 1229, 1441, and 1624, articles 36 and 37, Revised Statutes, and notes thereto; see also note to preamble, section 1624, Re- ^^sed Statutes, under "Persons discharged from the Navy." [1918, Apr. 10. Retired warrant and chief warrant officers; pay on active duty.] That any retired chief warrant officer who has been on active duty since August twenty-ninth, nineteen hundred and sixteen, or who may hereafter perform active duty, and whose record is creditable, shall, during such time as he has been or may hereafter be, on active duty, and from the time his service on the active list after date of commission, plus his service on active duty while on the rethed list, is equal to six years, receive the pay and allowances that are now, or may hereafter be, allowed a lieutenant (junior grade). United 1503 Apr. 20, 1918. I'l. S. STATUTES AT LARGE. States Navy; aiul shall, durinj; such tunc as he has ])een, or may hereafter be, on active duty, and from the time such total service is equal to twelve years, receive the pay and allowances that are now, or may hereafter be, allowed a lieutenant, United States Navy. Sec. 2. That any retired warrant officer who has been on active duty since August twenty-ninth, nineteen hundred and sixteen, or who may hereafter perform active duty, and whose record is creditable, shall, during such time as he has been or may hereafter be on active duty, and from the time his service on the active list after date of warrant, plus his service on active duty while on the retired list, is equal to twelve years, receive the pay and allowances that are now or may hereafter be allowed a lieutenant (junior gi-ade), United States Navy; and shall, during such time as he has been or may hereafter be on active dut}', and from the time such total service is equal to eighteen years, receive the pay and allowances that are now or may hereafter be allowed a lieutenant, United States Navy.— (40 Stat., 516, chap. 49.) See note to section 1592, Re\'ised Statutes, as Other provisions allowing increased pay tocom- to pay of retired olHcers on active duty; missioned and warrant officers on active and see note to section 1556, Revised Stat- duty were contained in act of July 1, 1918 utos, under "25. Warrant officers, acting (40 Stat., 717). warrant officers, and commissioned warrant officers," for decisions as to what consti- tutes a "creditable" record. [1918, Apr. 18. Claims for damages by American forces aboard.] That claims of inhabitants of France or of any other European country not an enemy or ally of an enemy for damages caused by American military forces may be presented to any officer designated by the President, and when approved by such an officer shall be paid under regulations made by the Secretary of War. Sec. 2. That claims under this statute shall not be approved unless they would be payable according to the law or practice governing the military forces of the country in which they occur. Sec. 3. That hereafter appropriations for the incidental expenses of the Quartermaster Corps shall be available for paying the claims herein described. Sec. 4. That this statute does not supersede other modes of indemnity now in existence and does not diminish responsibility of any member of the military forces to the person injured or to the United States. — (40 Stat., 532, chap. 57.) See act of June 24, 1910 (36 Stat., 607), and references thereunder. [1918, Apr. 20. Destruction of war material, or war premises, etc.] That the words "war material," as used herein, shall include arms, armament, ammunition, live-stock, stores of clothing, food, foodstuffs, or fuel; and shall also include supplies, munitions, and all other articles of whatever description, and any part or ingredient thereof, intended for, adapted to, or suitable for the use of the United States, or any associate nation, in connection with the conduct of the war. The words "war premises," as used herein, shall include all buildings, grounds, mines, or other places wherein such w^ar material is being produced, manufactured, repaired, stored, mined, extracted, distributed, loaded, unloaded, or transported, together with all machinery and appliances therein contained; 1504 NaturaUzation. Pt. 3. STATUTES AT LARGE. May 9, 1918. and all forts, arsenals, navy yards, camps, prisons, or other military or naval stations of the United States, or any associate nation. The words, "war utilities," as used herein, shall include all railroads, rail- ways, electric lines, roads of whatever description, railroad or railwa}^ fixture, canal, lock, dam, wharf, pier, dock, bridge, building, structure, engine, machine, mechanical contrivance, car, vehicle, boat, or aircraft, or any other means of transportation whatsoever, whereon or whereby such war material or any troops of the United States, or of any associate nation, are being or may be transported either within the limits of the United States or upon the high seas; and all dams, reservou-s, aqueducts, water and gas mains and pipes, structures and buildings, whereby or in connection with which water or gas is being furnished, or may be furnished, to any war premises or to the military or naval forces of the United States, or any associate nation, and all electric light and power, steam or pneumatic power, telephone and telegraph plants, poles, wires, and fixtures and wireless stations, and the buildings connected with the maintenance and operation thereof used to supply water, light, heat, power, or facilities of communication to any war premises or to the military or naval forces of the United States, or any associate nation. — (40 Stat., 533, chap. 59.) The words "United States" shall include the Canal Zone and all territory- and waters, continental and insular, subject to the jurisdiction of the United States. The words " associate nation," as used in this Act, shall be deemed to mean any nation at war with any nation with which the United States is at war. Sec. 2. That when the United States is at war, whoever, with intent to mjure, interfere with, or obstruct the United States or any associate nation in preparing for or carrv'ing on the war, or whoever, with reason to believe that his act may mjure, interfere with, or obstruct the United States or any associate nation in preparmg for or carr\'ing on the war, shall willfully injm"e or destroy, or shall attempt to so injure or destroy, any war material, war premises, or war utilities, as herein defined, shall, upon conviction thereof, be fined not more than S10,000 or imprisoned not more than thu'ty years, or both. Sec. 3. That when the United States is at war, whoever, with intent to injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war, or whoever, with reason to believe that his act may injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war, shall willfully make or cause to be made in a defective manner, or attempt to make or cause to be made in a defective manner, any war material, as herein defined, or any tool, implement, machine, utensil, or receptacle used or employed in mak- ing, producing, manufacturing, or repairing any such war material, as herein defined, shall, upon conviction thereof, be fined not more than $10,000 or imprisoned not more than thirty years, or both.— (40 Stat., 534, chap. 59.) See Criminal Code, act of March 4, 1909, section 45 (35 Stat.. 1097). [1918, May 9. Naturalization of aliens in the naval service, etc.] That section four of the Act entitled ''An Act to establish a Bm-eau of Immigration and Naturalization and to provide a uniform rule for the naturalization of aliens throughout the United States," approved June twenty-ninth, nineteen 1505 May 9, 1918. Pt. 3. STATUTES AT LARGE. Naturalization. hundred and six, be, and is hereby, amended by adding seven new subdivisions as follows : "Seventh. Any native-born Filipino of the age of twenty-one years and upward who has declared his intention to become a citizen of the United States and who has enlisted or may hereafter enlist in the United States Navy or ]\Iarine Corps or the Naval Auxiliary Service, and who, after service of not less than tliree years, may be honorably discharged therefrom, or who may receive an ordinary discharge with recommendation for rcenlistment; or any alien, or any Porto Rican not a citizen of the United States, of the age of twenty-one years and upward, who has enlisted or entered or may hereafter enlist in or enter the armies of the United States, either the Regular or the Volunteer Forces, or the National Army, the National Guard or Naval Militia of any State, Territory, or the District of Columbia, or the State militia in Federal service, or in the United States Navy or Marine Corps, or in the United States Coast Guard, or who has served for three years on board of any vessel of the United States Government, or for tliree years on board of merchant or fishing vessels of the United States of more than twenty tons burden, and while still in the service on a rcenlistment or reappointment, or within six months after an honorable discharge or separation therefrom, or wliile on furlough to the Army Reserve or Regular ^irmy Reserve after honorable service, may, on presenta- tion of the required declaration of intention petition for naturalization without proof of the required five years' residence within the United States if upon examination by the representative of the Bureau of Naturalization, in accord- ance with the requirements of this subdivision it is shown that such residence can not be established; any alien serving in the military or naval service of the United States during the time this country is engaged in the present war may file his petition for naturalization without making the preliminary declaration of intention and without proof of the required five years' residence within the United States; any alien declarant who has served in the United States Army or Navy, or the Philippine Constabulary, and has been honorably discharged therefrom, and has been accepted for service in either the military or naval service of the United States on the condition that he becomes a citizen of the United States, may file his petition for naturalization upon proof of continuous residence within the United States for the three years immediately preceding his petition, by two witnesses, citizens of the United States, and in these cases only residence in the Philippine Islands and the Panama Canal Zone by aliens may be considered residence within the United States, and the place of such military service shall be construed as the place of residence required to be established for purposes of naturalization; and any alien, or any person owing permanent allegiance to the United States embraced within this subdivision, may file his petition for naturalization in the most convenient court wdthout proof of residence within its jurisdiction, notwithstanding the limitation upon the jurisdiction of the com-ts specified in section three of the Act of June twenty- ninth, nineteen hundred and six, provided he appears with liis two witnesses before the appropriate representative of the Bureau of NaturaHzation and passes the preliminary examination hereby required before filing his petition for naturalization in the office of the clerk of the court, and in each case the 1506 Naturalization. Ft. 3. STATUTES AT LARGE. May 9, 1918. record of this examination shall be offered in evidence by the representative of the Government from the Bureau of Naturalization and made a part of the record at the original and any subsequent hearings; and, except as otherwise herein provided, the honorable discharge certificate of such alien, or person owing permanent allegiance to the United States, or the certificate of service showing good conduct, signed by a duly authorized officer, or by the masters of said vessels, shall be deemed prima facie evidence to satisfy all of the require- ments of residence within the United States and within the State, Territory, or the District of Columbia, and good moral character required by law, when supported by the affidavits of two %\'itnesses, citizens of the United States identifying the applicant as the person named in the certificate or honorable discharge, and in those cases only where the alien is actually in the military or naval service of the United States, the certificate of arrival shall not be filed with the petition for natui'alization in the manner prescribed; and any petition for naturalization filed under the provisions of this subdivision may be heard immediately, notwithstanding the law proliibits the hearing of a petition for naturalization during thirty days preceding any election in the jurisdiction of the court * * *.— (40 Stat., 542-543, chap. 69.) See act of August 29, 1916 (39 Stat., 587), as amended by act of May 22, 1917 (40 Stat., 84), with respect to naturalization of members of the Naval Reserve Force; and see notes to Constitution, Article I, sec- tion 8, clause 4; Article IV, section 3, clause 2; and fourteenth amendment. [1918, May 14. Ag^e of candidates for Naval Academy.] That hereafter all candidates for admission to the Xaval Academy must be not less than sixteen years of age nor more than twenty years of age on April first of the calendar year in which they enter the academy: Provided, That the foregoing shall not apply to candidates for midshipmen designated for entrance to the academy in nineteen hundred and eighteen. — (40 Stat., 550, chap. 73.) See note to section 1517, Revised Statutes. [1918, July 1. Government fuel yards, District of Columbia.] The Secretary of the Interior is authorized and directed to establish in the District of Columbia storage and distributing yards for the storage of fuel for the use of and delivery to all branches of the Federal service and the municipal government in the District of Columbia and such parts thereof as may be situated immediately without the District of Columbia and economically can be supplied therefrom, and to select, purchase, contract for, and distribute all fuel required by the said services. Authority is granted the Secretary of the Interior, in connection with the establishment of the said yards, to procure by purchase, requisition for immediate use, condemnation, or lease for such period as may be necessary, land, wharves, and railroad trestles and sidings requisite therefor. All branches of the Federal service and the municipal government in the District of Columbia, from and after the establishment of the said fuel yards, shall purchase all fuel from the Secretary of the Interior and make payment therefor from applicable appropriations at the actual cost thereof to the United States, including aU expenses connected therewith * * *. — (40 Stat., 672-673, chap. 113.) By act of July 11, 1919 (41 Stat., 148), it was j except the naval hospital, in the District pro\ided that the above enactment of of Columbia." July 1, 1918, "shall not apply to the fuel See act of June 5, 1920 (41 Stat., 913). required for the Xaval Establishment, 1507 July 1, 1918. PL S. STATUTES AT LARGE. [1918, July 1. Claims for damages by naval forces abroad.] That hereafter the Secretary of the Nuav is authorized to consi(ku-, ascertain, adjust, determine, and pay the amounts tlue on all chxims for damages to and loss of private prop- erty of inliabitants of any European country not an enemy or ally of an enemy when the amount of the claim does not exceed the sum of $1,000, occasioned and caused by men in the naval service during the period of the present war, all payments in settlement of such claims to be made out of "Pay, Miscellane- ous."— (40 Stat., 705, chap. 114.) See act of June 24, 1910 (36 Stat., 607), and references thereunder. [1918, July 1. Improvements on land leased by the Navy.] The Secretary of the Navy is authorized in leasing water-front property from any State or munici- pality where the State law or charter of the municipality requires that the improvements placed upon leased lands shall at the termination of the lease become the property of the State or municipality, to provide, as a part or all of the consideration therefor, that improvements placed thereon by the United States shall become the property of the lessor upon the expiration of the lease or any renewal thereof. — (40 Stat., 705, chap. 114.) See note to section 355, Re\'ised Statutes. [1918, July 1. Salvage by naval vessels.] That hereafter the Secretary of the Navy is authorized to cause vessels under his control adapted to the purpose, to afford salvage service to public or private vessels in distress: Provided, That when such salvage service is rendered by a vessel specially equipped for the purpose or by a tug, the Secretary of the Navy may determine and collect reasonable compensation therefor. — (40 Stat., 705, chap. 114.) See sections 1536 and 4642, Revised Statutes, and March 9, 1920, sections 10 and 11 and acts of August 1, 1912 (37 Stat., 242), (41 Stat., 528). [1918, July 1. Hydrographic Office, naval officers detailed to.] That the Secretary of the Navy is authorized to detail such naval officers as may be necessary to the Hydrographic Office. — (40 Stat., 708, chap. 114.) This provision was repeated in acts of July 11, 1919 (41 Stat., 135), and June 4, 1920 (41 Stat., 816). See section 431, Revised Statutes, and note thereto. [1918, July 1. Naval Militia and National Naval Volunteers abolished. Naval Reserve Force, rank of members.] That upon the approval of this Act all laws heretofore enacted by the Congress relating to the Naval Militia and the National Naval Volunteers be, and the same hereby are, repealed; and the President is authorized to transfer as a class all members of the National Naval Volunteers to the class "the Naval Reserve," "the Naval Reserve Flying Corps," or "the Marine Corps Reserve" of the Naval Reserve Force or the Marine Corps Reserve, for general service, in the confirmed rank, grade, or rating they now hold in the National Naval Volunteers, regardless of their being members of a State military force, and without examination and the necessity of executing or filing a new oath and acceptance of office; that until such transfer is affected members of the National Naval Volunteers shall retain their present status and be entitled to receive the same pay, allowances, 1508 Rank of members of the Naval Reserve Force: See act of August 29, 1916 (39 Stat., 587), and see pro\'ision of this act (40 Stat., 711) set forth below, as to promotion in the Naval Reserve Force. PL 3. STATUTES AT LARGE. July 1, 1918. gratuities, and other benefits as heretofore provided by law, and shall con- tinue subject to the laws prescribed for the government of the Navy; that all members of the Naval Reserve Force shall be eligible for reenrollment in the rank, grade, or rating held on the termination of their last enrollment; that no enrollments or promotions shall be made in any rank or grade above that of lieutenant commander, except as herein otherwise provided. — (40 Stat., 708, chap. 114.) See act of August 29, 1916 (39 Stat., 587-593), creating the Naval Reserve Force and Marine Corps Reserve. Some legislation relating to the Naval Militia was re\'ived, until June 30, 1922, bv act of June 4, 1920 (41 Stat., 817). [1918, July 1. Medical and Dental Eeserve Corps abolished.] That all laws heretofore enacted by Congress relating to the Medical Reserve Corps and Dental Reserve Corps be, and the same hereby are, repealed: Provided, That members of the Medical Reserve Corps and Dental Reserve Corps may be enrolled in the Naval Reserve Force in their present grades and ranks. — (40 Stat., 708, chap. 114.) See note to section 1368, Re\dsed Statutes, as to the organization of the Medical Department of the Navy. [1918, July 1. Naval Reserve, age limits; minimum active service.] That the age limits for the several ranks, grades, and ratings on first enrollment in the Naval Reserve shall be as prescribed by the Secretary of the Navy. That the minimum active service required for maintaining the efficiency of a member of the Naval Reserve shall be two months durmg each term of enrollment and an attendance at not less than thirty-six drills during each year, or other equivalent duty. The active service may be in one period or in periods of not less than fifteen days each. — -(40 Stat., 710, chap. 114.) See act of August 29, 1916 (39 Stat., 591), relating to the Naval Reserve. [1918, July 1. Naval Eeserve Force, retainer pay and retirement.] That the annual retainer pa}^ of members of the Naval Reserve Force, except officers in the Naval Auxiliary Reserve and transferred members of the Fleet Naval Reserve, after confirmation in rank, grade, or rating, shall be the equivalent of two months' base pay of the corresponding rank, grade, or rating in the Navy, but the highest base pay upon which the retainer pay of officers of the Naval Reserve Force shall be computed shall not be greater than the base pay of a lieutenant commander. Service in the Navy, Marine Corps, National Naval Volunteers, and Naval ]VIilitia shall be counted as continuous service in the Naval Reserve Force, both for the purpose of retirement and of computing re- tainer pay: Provided, That no member of the Naval Reserve Force shall be eligible for retirement other than for physical disability incurred in line of duty: Provided further. That no retainer pay of any member of the Naval Reserve Force except those enlisted men transferred to the Fleet Naval Reserve after sixteen or twenty or more years' naval service shall be in excess of the amount authorized to members having had sixteen years' continuous service therein. — (40 Stat., 710-711. chap. 114.) 1509 July 1, 1918. Pt. 3. STATUTES AT LARGE. See note to section 1556, Revised J^tatutes, as to jmy of Naval Reserve Force. Retirement of enrolled members of the Naval Reserve Force, after 20 years' service, and of transferred members, after 30 years' serAice, was authorized by act of Aup;ust 29, 1916 (39 Stat., 588 and 591); retirement of officers of the Naval Reserve Force for physical disability in line of duty was authorized by act of June 4, 1920, section 2 (41 Stat., 834). Marine Corps Resei've. — The provisions of this paragraph as to retirement for physical disability apply to the Marine Corps Reserve. (File 26253-737, Oct. 16, 1919; see note to act of Aug. 29, 1916, 39 Stat., 593.) [1918. July 1. Naval Reserve Force, active duty; uniform gratuity ; retainer pay while on active duty.] That in time of peace the Secretary of the Nav}' is autliorized, in his discretion, to order any member of the Naval Reserve Force, with his consent, who has been confirmed in his rank, grade, or rating, to per- form any duty afloat for any period of time for which his services may be re- quired: Provided, That such members may be relieved from duty by the Secre- tary of the Navy at any time and shall upon their own application be released from said duty within four months from the date of their application therefor. That the uniform gratuity for the members, other than officers, of each class of the Naval Reserve Force shall be the same as that prescribed for enlisted men of the Navy, but in time of peace the Secretary of the Navy shall prescribe the portion of the clothing gratuity to be issued to such members, other than officers, of the Naval Reserve Force. That in time of peace no member of any class of the Naval Reserve Force shall be entitled to retainer pay when assigned to active duty for purposes other than training. That no part of the clothing gratuity credited to members of the Naval Reserve Force shall be deducted from their accomits where said members accept or have accepted temporary appointments in the Navy in time of war or other national emergency. — (40 Stat., 711, chap. 114.) As to uniform gratuity and retainer pay of the As Naval Reserve Force, see note to section 1556, ReAised Statutes, under "37. Naval Reserve Force." [1918, July 1. Naval Reserve Force, disenrollment for age; promotion; pre- cedence; command.] That members of the Naval Reserve Force shall upon reaching the age of sixty-four years be disenrolled except that in time of war or other national emergency such members of the Naval Reserve Force, if in active service, may be continued therein during such period as the Secretary of the Navy may determine, but not longer than six months after said war or other national emergency shall cease to exist. That no officer of any class of the Naval Reserve Force shall in time of peace be promoted above the grade of lieutenant commander, but in time of war or other national emergency officers of the Naval Reserve Force of and above the rank of lieutenant commander in active service shall be eligible for selection for promotion to the next higher grade or rank by the same board of officers that selects officers of the United States Navy for promotion to such higher ranks and grades, under the same rules and regulations as apply to the selection for pro- motion of officers of the United States Navy. The promotion of officers of the Naval Reserve Force below the rank of lieutenant commander shall at all times be in accordance with such regulations as the Secretary of the Navy may prescribe. to active service in the Naval Reserve Force, see act of August 29, 1916 (39 Stat., 587-589). 1510 PL 3. Statutes at large. juiy i, 1918. That when on active duty officers of the Naval Reserve Force shall take precedence among themselves and with other officers of the naval service in their respective grades or ranks according to the dates of their commissions or provisional assignment of rank in the Naval Reserve Force: Provided, That all officers of the Naval Reserve Force of and above the rank of lieutenant com- mander shall rank with but after officers of the same rank or grade in the United States Navy, except that in time of war or other national emergency such officers of the Naval Reserve Force shall have a date of precedence with officers of the United States Navy as of the date of general mobilization, to be estab- lished by the Secretary of the Navy: Provided further, That during the present emergency the date of precedence of all officers of the Naval Reserve Force shall be as prescribed by the Secretary of the Navy. No officer of the Naval Coast Defense Reserve or officer of the Naval Reserve Flying Corps shall exercise command except within his particular department or service for the due performance of his respective duties. — (40 Stat., 711, chap. 114.) As to promotion by selection in the Navy, see acts of August 29, 1916 (39 Stat., 578-579), and July 1, 1918 (40 Stavt., 718). [1918, July 1. Naval Reserve Force, pay and discipline; wearing of uniform when not in active service.] Members of the Naval Reserve Force when employ- ed in active service, ashore or afloat, under the Navy Department shall receive the same pay and allowances as received by the officers and enlisted men of the Regular Navy of the same rank, grades, or ratings and of the same length of service, which shall include service in the Navy, Marine Corps, Naval Reserve Force, Naval Militia, National Naval Volunteers, or Marine Corps Reserve. * * * Enrolled members of the Naval Reserve Force when in active service shall be subject to the laws, regulations, and orders for the government of the Regular Navy, and the Secretary of the Navy may, in his discretion, permit the members of the Naval Reserve Force to wear the uniform of their respective ranks, grades, or ratings while not in active service, and such members shall, for any act committed by them while wearing the uniform of their respective ranks, grades, or ratings, be subject to the laws, regulations, and orders for the govern- ment of the Regular Navy.— (40 Stat., 712, chap. 114.) As to pay of Naval Reserve Force, see note to section 1556, ReAdsed Statutes, under "37. Naval Reserve Force." As to amenability of members to trial by naval court-martial, see note to preamble of sec- tion 1624, Revised Statutes. [1918, July 1. Authorized enlisted strength of the Navy.] That the au- thorized enlisted strength of the active list of the Navy is hereby increased from eighty-seven thousand to one hundred and thirty-one thousand four hundred and eighty-five. — (40 Stat., 714, chap. 114.) See act of June 3, 1916, section 125 (39 Stat., 216-217), and note thereto, Avith respect to unauthorized wearing of the uniform. Subsequent provisions of tliis act reenacted section 1 of the act of May 22, 1917 (40 Stat. , 84), and in such reenactment embodied a definition of the words "authorized enlist- ed strength." (See the act last cited for definition.) See note to section 1417, RoA-ised Statutes, as to enlisted strength of the Navy; see also act of August 29, 1916 (39 Stat., 575), and references thereunder. 1511 July 1, 1918. PL 3. STATUTES AT , ARGE. <■■ [1918, July 1. Major generals authorized, Marine Corps.] The rank and title of Major General is hereby created in the Marine Corps, and the President is authorized to nominate, and, by and with the advice and consent of the Senate, to appoint one Major General, who shall at all times be jmiior in rank to the Major General Commandant, and also one temporary Major General in the Marine Corps, who shall at all times be junior to the permanent Major General.— (40 Stat., 715, chap. 114.) See note to section 1596, Re^dsed Statutes, as to niunber and grades of officers in the Marine Corps. A subsequent provision of this act (40 Stat., 733), set forth below, limited the duration of "all temporary promotions and advance- ments authorized by this Act," to "not later than six months after the termination of the present war. " [1918, July 1. Allowances of admirals and vice admirals; rank, pay and allowances of chiefs of bureaus and Judge Advocate General.] That hereafter the Chief of Naval Operations shall receive the allowances which are now or may hereafter be prescribed by or in pursuance of law for the grade of general in the Army, and the officers of the Navy holding the rank and title of Admiral and Vice Admiral in the Navy while hokUng such rank and title shall receive the allowances of a General and Lieutenant General of the ^Vi'my, respectively. And hereafter chiefs of bureaus of the Navy Department, including the Judge Advocate General of the Navy, shall, while so serving, have corresponding rank and shall receive the same pay and allowances as are now or may hereafter be prescribed by or in pursuance of law for chiefs of bureaus of the War Depart- ment and the Judge Advocate General of the Army. — (40 Stat., 716-717, chap. 114.) See note to sections 421 and 1565, Revised Stat- utes, as to chiefs of bureaus; see note to section 1556, Revised Statutes, under "2-3. Admirals; Vice admirals;" see also notes to sections 1362, 1487, 1558, and 1578, Re- vised Statutes. Chief of Naval Operations: See acts of March 3, 1915 (38 Stat., 929), and August 29, 1916 (39 Stat., 558). Judge Advocate General: See act of June 8, 1880 (21 Stat., 164), as amended by act of Junes, 1896 (29 Stat., 251). Ranks of admiral and ^•ice admiral : See act of May 22, 1917, section 18 (40 Stat., 89). [1918, July 1. Retired officers, permanent promotion in time of war.] That hereafter, during the existence of war or of a national emergency declared by the President to exist, any commissioned or warrant officer of the Navy, Marine Corps, or Coast Guard of the United States on the retired list may, in the dis- cretion of the Secretary of the Navy, be ordered to active duty at sea or on shore; and any retired officer performing such active duty in time of war or national emergency, declared as aforesaid, shall be entitled to promotion on the retired list to the grade or rank, not above that of lieutenant commander in the Navy or major in the Marine Corps or captain in the Coast Guard, and shall thereafter receive the pay and allowances thereof, which his total active service as an officer both prior and subsequent to retirement, in the manner rendered by liim, would have enabled him to attain in due course of promotion had such service been rendered continuously on the active list during the period of time last past. — (40 Stat., 717, chap. 114.) See notes to sections 1591-1592, Re\dsed Statutes. [1918, July 1. Retired officers, temporary promotion in time of war.] That during the existence of war or of a national emergency, declared as afore- 1512 Ft. 3. STATUTES AT LARGE. July 1, 1918. said, any commissioned or warrant officer of the Navy, Marine Corps or Coast Guard of the United States on the retired hst, while on active duty, may be tem- porarily advanced to and commissioned in such higher grade or rank on the retired list, not above that of lieutenant commander in the Navy or major in the Marine Corps or captain in the Coast Guard, as the President may determine, and any officer so advanced shall, while on active duty, be entitled to the same pay and allowances as officers of like grade or rank on the active list: Provided, That any such commissioned or warrant officer who has been so temporarily advanced in gi-ade or rank shall, upon his relief from active duty, or in any case not later than six months after the termination of the war or of the national emergency, declared as aforesaid, revert to the grade or rank on the retired list and to the pay and allowance status which he would have held had he not been so temporarily advanced : Provided further, That nothing in this Act shall operate to reduce the pay and allowances now allowed by law to retired offi- cers.— (40 Stat., 717, chap. 114.) See notes to sections 1591-1592, Revised Statutes. i,.,^ [1918, July 1. Staff Corps, promotion by selection.] The provisions of existing laws with reference to promotion by selection in the line of the Navy are hereby extended to include and authorize advancement to the ranks of commander, captain, and rear admiral in the Staff Corps of the Navy under the same conditions in all respects except as may be necessary to adapt the said provisions to such Staff Corps: Provided, That boards of selection shall in each case be composed, when practicable, of not less than five members of the corps concerned and promotions shall be made on the basis of fitness alone by selection from among the officers of the rank next below: Provided further. That the requirements for sea service in grade, length of service in grade and maximum age in grade for promotion shall not apply. — (40 Stat., 718, chap. 114.) See act of August 29, 1916 (39 Stat., 578-579), as Navy; and see notes to sections 1458 and to promotion by selection in the line of the 1480, Revised Statutes. [1918, July 1. Aviation duty; no increased allowances.] That hereafter the allowances of officers, enlisted men, and student flyers of the naval service shall in no case be increased by reason of the performance of aviation duty. — (40 Stat., 718, chap. 114.) See acts of March 3, 1915 (38 Stat., 939), and August 29, 1916 (39 Stat., 582-586); and see note to section 1556, Re\'ised Statutes, under "38. Additional pay for special duty," and note to section 1569, ReAised Statutes. [1918, July 1. Navy mail clerks, shore duty.] That the provisions of the Act of May twenty-seventh, nineteen hundred and eight (Thirty-fifth Statutes, pages fom" hundred and seventeen and four hundred and eighteen), as amended by the Act of August twenty-fourth, nineteen hundred and twelve (Thirty- seventh Statutes, page five hundred and sixty), and as amended by the Act of March fourth, nineteen hundred and seventeen (Thirty-ninth Statutes, page eleven hundred and eighty-eight), are hereby extended to authorize the designa- tion of enlisted men of the Navy or Marine Corps as Navy mail clerks and assistant Navy mail clerks for duty at stations and shore establishments under 1513 July 1, 1918. Pt. 3. STATUTES AT LARGE. m the jurisdiction of the Navy Department where the services of such mail clerks and assistant mail clerks are necessary. — (40 Stat., 718, chap. 114.) See act of May 27, 1908 (35 Stat., 417), and note thereto. [1918, July 1. Quarters, when not available.] That hereafter the Secretary of the Navy may determine where and when there are no public quarters avail- able for persons in the Navy and Marine Corps, or serving therewith, within the meaning of any Acts or parts of Acts relating to the assignment of quarters or commutation therefor. — (40 Stat., 718, chap. 114.) See note to sections 236 and 1487, Revised Statutes. [1918, July 1. Cash rewards to civilians for suggested improvements.] Tliat tlic Secretary of the Navy is hereby authorized, in his discretion and under such rules and regulations as he may prescribe, to pay cash rewards to civilian employees of the Navy Department or the Naval Establisluiient or other persons in civil life when due to a suggestion or series of suggestions by them there results an improvement or economy in manufacturing process or plant or naval material: Provided, That such sums as may be awarded to employees or other persons in civil life in accordance with this Act shall be paid them out of current naval appropriations in addition to their usual com- pensation: Provided further, That no employee or other person in civil life sliall be paid a reward under this Act mitil he has properly executed an agree- ment to the effect that the use by the United States of the suggestion or series of suggestions made by him shall not form the basis of a further claim of any nature from the United States by him, his heirs, or assigns. — (40 Stat., 718, chap. 114.) See sections 1763-1765, Revised Statutes, and references thereunder. [1918, July 1. Retired enlisted men, promotion.] That any enlisted man of the Navy or IViarine Corps upon the retired list who has been ordered into active service since April sixth, nineteen hundred and seventeen, or who may hereafter be ordered into active service, shall be eligible for promotion and he shall be entitled to the pay and benefits of continuous service of sucli rank and for such length of time as he is or has been employed in active service, and when relieved of active service shall retain upon the retu-ed list the rank and service held by him at the time of such relief, with the pay and allowances of such rank on the retired list; and the accounting officers of the Treasury are hereby directed to allow in the accounts of any enlisted man of the Navy or Marine Corps who resigned from the retired list in order to reenlist for appoint- ment in a higher grade, the same continuous service pay and the benefits of such rank to which he may have been appointed upon reenlistment, as if his service had been continuous, and any difference in pay from the date of reenlist- ment shall be credited to liis account. — (40 Stat., 719, chap. 114.) See notes to sections 1569 and 1622, Revised Statutes. By act of July 11, 1919 (41 Stat., 153), it was provided "That so much of the Act of July 1, 1918 (Public Numbered 182), as authorizes the promotion of retired enlisted men of the Navy and Marine Corps ordered to active duty shall not be so construed as to make illegal promotions of such men as have heretofore been made to warrant grades or as to deprive them of any of the pay, allowances, or other benefits accruing under such promotion." (It had previ- ously been held that the above act of July 1, 1918, did not authorize the promo- tion of retired enlisted men except to higher enlisted gi-ades on the retired list: see note to sec. 1622, R. S.) 1514 PL 3. STATUTES AT LARGE. July 8, 1918. [1918, July 1. Purchase of vessels for transportation of fuel.] That when, m the opinion of the President, the prices asked for the charter of vessels for the transportation of fuel are excessive, he is authorized to purchase vessels suitable for the purpose, and, if money is not other\^4se available, to pay for them from the appropriation ''Fuel and transportation." — (40 Stat., 730, chap. 114.) The above was a proviso following appropria- tions for '"fuel and transportation "' in the naval appropriation act of July 1, 1918; an identical pro\dsion was contained in act of June 15, 1917 (40 Stat.,211.) See act of April 28, 1904 (33 Stat., 518), and sections 3711, 3718, and 3728, Revised Statutes. [1918, July 1. Termination of temporary promotions.] That all temporary promotions and advancements authorized by tliis Act shall continue in force only until otherwise directed by the President, and not later than six months after the termination of the present war. — (40 Stat., 733, chap. 114.) The above paragi-aph in the naval appropria- diately after proAisions for temporary pro- tion act of July 1, 1918, followed imme- motions in the Coast Guard. [1918, July 1. Pay clerks, Marine Corps.] The title of clerks for assistant paymasters is hereby changed to pay clerk, who shall hereafter receive the same pay, allowances, and other benefits now provided by law for clerks for assistant paymasters; and the total number of pay clerks shall not exceed ten for duty in the office of the paymaster, Marine Corps, fifteen for duty in the paymaster's department at large, and one for each assistant paymaster: Pro- vided^ That nothing herein contained shall be construed to reduce the pay, allowances, or other benefits granted by existing law to any clerk for assistant paymaster now in service. — (40 Stat., 735, chap. 114.) See notes to sections 1596 and 1612, Re\-ised Statutes. [1918, July 1. Advertising for recruits.] That hereafter authorit}^ is hereby granted to employ the services of advertising agencies in advertising for recruits under such terms and conditions as are most advantageous to the Government. — (40 Stat., 736, chap. 114.) This was a proAiso in the naval appropriation act of July 1, 1918, following appropriation for "transportation and recniiting, Marine Corps." [1918, July 8. Transfer of naval ordnance to War Department.] Such naval ordnance and ordnance material as the Secretary of War and the Secretary of the Navy may determine necessary is authorized to be transferred from the Navy Department to the War Department: Provided, That if such ordnance and ordnance material is obsolete for naval purposes the transfer shaU be made without reimbursement and payment to the Navy for other ordnance and ordnance material transferred hereunder shall be made only after estimates shall have been submitted to Congress and a specific appropriation for such pay- ment shaU have been made. — (40 Stat., 817, chap. 137.) See act of July 11, 1919 (41 Stat., 132), and references thereunder. [1918, July 8. Unauthorized wearing of uniform or decorations of friendly nations.] That it shall be unla^vful for any person, with intent to deceive or mislead, within the United States or Territories, possessions, waters, or places subject to the jm-isdiction of the United States, to wear any naval, military, police, or other official uniform, decoration, or regalia of any foreign State, 54641°— 22 96 1515 July 9, 1918. Pi. 3. STATUTES AT LARGE. nation, or Government \vith which the United States is at peace, or any uni- form, decoration, or regalia so nearly resembling the same as to be calculated to deceive, unless such wearing thereof be authorized by such State, nation, or Government. Any person who violates the provisions of this Act shall upon conviction be punished by a fine not exceeding S300 or imprisonment for not exceeding six months, or by both such fine and imprisonment.^ (40 Stat., 821, chap. 138.) 8, and acts of Januarv 31, 1881, section 2 (21 Stat., 604), and July 9, 1918 (40 Stat., 872), as to foreign decorations. See act of June 3, 1916, section 125 (39 Stat., 216-217), as to unauthorized wearing of uniform of the United States, and see note to Constitution, Article I, section 9, clause [1918, July 9. Sale of war supplies.] That the President be, and he hereby is, authorized, through the head of any executive department, to sell, upon such terms as the head of such department shall deem expedient, to any person, partnership, association, corporation, or any other department of the Govern- ment, or to any foreign State or Government, engaged in war against any Gov- ernment with which the United States is at war, any war supplies, material and equipment, and any by-products thereof, and any building, plant or factory, acquired since April sixth, nineteen hundred and seventeen, including the lands upon which the plant or factory may be situated, for the production of such war supplies, materials, and equipment which, during the present emergency, may have or may hereafter be purchased, acquired, or manufactured by the United States: Provided further, That sales of guns and ammunition made under the authority contained in this or any other Act shall be limited to sales to other departments of the Government and to foreign States or Governments engaged in war against any Government with which the United States is at war, and to members of the National Rifle Association and of other recognized asso- ciations organized in the United States for the encom'agement of small-arms target practice: Provided further, That a detailed report shall be made to Con- gress on the first day of each regular session of the sales of any war supplies, materiel, lands, factories, or buildings, and equipment made under the authority contained in this or any other Act, except sales made to any foreign State or Government engaged in war against any Government with wliich the United States is at war, showing the character of the articles sold, to whom sold, the price received therefor, and the purpose for which sold * * * — (49 Stat,, 850, chap. 143.) purposes of the original appropriation. The said clause was expressly repealed by act of February 25, 1919, section 3 (40 Stat., 1173). The above provision was followed by a clause authorizing the deposit of proceeds of any such sales to the credit of the appro- priation from which the cost of the prop- erty was paid, and the use thereof for the [1918, July 9. Medals and decorations, interchanged between United States and foreign military forces.] That American citizens who have received, since August first, nineteen hundred and fourteen, decorations or medals for dis- tinguished service in the armies or in connection with the field service of those nations engaged in war against the Imperial German Government, shall, on entering the military service of the United States, be permitted to wear such medals or decorations. 1516 PL 3. STATUTES AT LARGE. Jvdj 9, 1918. That any and all members of the military forces of the United States serving in the present war be, and they are hereby, permitted and authorized to accept during the present war or within one year thereafter, from the Gov- ernment of any of the countries engaged in war with any country with which the United States is or shall be concurrently likewise engaged in war, such decorations, when tendered, as are conferred by such Government upon the members of its own military forces; and the consent of Congress required therefor by clause eight of section nine of Article I of the Constitution is hereby expressly granted: Provided, That any officer or enlisted man of the military forces of the United States is hereby authorized to accept and wear any medal or decoration heretofore bestowed by the Government of any of the nations concurrently engaged with the United States in the present war. — (40 Stat., 872, chap. i43.) That the President is authorized, under regulations to be prescribed by him, to confer such medals and decorations as may be authorized in the mili- tary service of the United States upon officers and enlisted men of the military forces of the countries concurrently engaged with the United States in the present war.— (40 Stat., 872-873, chap. 143.) See acts of January 31, 1881, sections 2 and 3 Applicable to the Navy. — The word (21 Stat., 604), July 1, 1918 (40 Stat., 821), "military" as used in the above paragraphs and February 4, 1919 (40 Stat., 1056); see includes the Navy. (See 31 Op. Atty. Gen., also notes to section 1407, Revised Statutes, 445, and file 9644-55, Navy Dept.) and Constitution, article I, section 9, clause 8. [1918, July 9. Interdepartmental Social Hygiene Board; protection of naval forces from venereal diseases.] That there is hereby created a board to be known as the Interdepartmental Social Hygiene Board, to consist of the Secre- tary of War, the Secretary of the Navy, and the Secretary of the Treasury as ex officio members, and of the Surgeon General of the Army, the Surgeon General of the Navy, and the Surgeon General of the Public Health Service, or of representatives designated by the Secretary of War, the Secretary of the Navy, and the Secretary of the Treasury, respectively. The duties of the board shall be: (1) To recommend rules and regulations for the expenditure of moneys allotted to the States under section five of this chapter; (2) to select the institutions and organizations and fix the allotments to each institution under said section five; (3) to recommend to the Secretary of the Treasury, the Secretary of War, and the Secretary of the Navy such general measures as will promote correlation and efficiency in carrying out the purposes of this chapter by their respective departments ; and (4) to direct the expenditure of the sum of $100,000 referred to in the last paragraph of section seven of this chapter. The board shall meet at least quarterly, and shall elect annually one of its members as chairman, and shall adopt rules and regulations for the con- duct of its business. Sec. 2. That the Secretary of War and the Secretary of the Navy are hereby authorized and directed to adopt measures for the purpose of assisting the various States in caring for civilian persons whose detention, isolation, quarantine, or commitment to institutions may be found necessary for the protection of the military and naval forces of the United States against venereal diseases. * * *.— (40 Stat., 886, chap. 143.) 1517 July 9, 1918. Pt.S. STATUTES AT LARGE. Sec. 5. That there is hereby appropriated, out of any money in the Treas- ury not otherwise appropriated, the sum of $1,000,000, to be expended under the joint direction of the Secretary of War and the Secretary of the Navy to carry out the provisions of section two of this chapter: Provided, That the appropriation herein made shall not be deemed exclusive, but shall be in addi- tion to other appropriations of a more general character which are applicable to the same or similar purposes. * * * Sec. 8. That the terms ''State" and "States," as used in this chapter, shall be held to include the District of Columbia.— (40 Stat., 887, chap. 143.) [1918, July 9. Condemnation proceedings ; sale of timber lands, logs, etc. ; reuse of proceeds.] That the act entitled "An Act to authorize condemnation proceedings of lands for military purposes," approved July second, nineteen hundred and seventeen, as amended by an act approved April eleventh, nine- teen hundred and eighteen, be, and the same is hereby, amended, and its pro- visions in all respects together with all its privileges and benefits are hereby extended to the right of condemnation of standing or fallen timber, sawmills, camps, machinery, logging roads, rights of way, equipment, materials, supplies, and any works, property, or appliances suitable for the effectual production of such lumber and timber products, for the Army, Navy, United States Shipping Board, or the United States Shipping Board Emergency Fleet Corporation- That the right to institute such condemnation proceedings is hereby conferred upon the Secretary of War, the Secretary of the Navy, and the Chairman of the United States Shipping Board and the United States Shipping Board Emergency Fleet Corporation, individually or collectively. Such right of condemnation shall be exercised by such officials only for the purpose of obtain- ing such property when needed for the production, manufacture, or building aircraft, dry-docks, or vessels, their apparel or furniture, for housing of Govern- ment employees in connection with the Army, Navy, or the United States Shipping Board and the United States Shipping Board Emergency Fleet Corporation, and for the procurement of materials and equipment for aircraft, dry-docks and vessels. The jurisdiction of such condemnation prodeedings is hereby vested in the District Courts of the United States, where the property which is sought to be condemned or any part thereof is located or situated, regardless of the value of the same. And the President is hereby authorized through any department or the United States Shipping Board or said Fleet Corporation to sell and dispose of any lands or interests in real estate acquired for the production of lumber and timber products, and to sell any logs, manufactured or partly manufactured or otherwise procured for the Army, Navy, or United States Shipping Board Emergency Fleet Corporation, or resulting from such manufacture or procure- ment, either to individuals, corporations or foreign states or governments, at such price as he shall determine acting through his above representatives selling or disposing of the same, and the proceeds of such sale shall be returned to the appropriations which bore the expense of such procurement. — (40 Stat., 888, chap. 143.) See act of July 2,1917 (40 Stat. , 241) , as amended and reenacted by act of April 11, 1918 (40 Stat., 518-519); see also acts of August 1, 1888 (25 Stat., 357), and June 3, 1916, sec- tion 124 (39 Stat., 215). 1518 Pt. 3. STATUTES AT LARGE. July 10, 1918. [1918, July 9. Navigation regulations; transportation of explosives; public vessels to enforce.] That in the interest of the national defense, and for the better protection of life and property on said waters, the Secretary of War is hereby authorized and empowered to prescribe such regulations as he may deem best for the use and navigation of any portion or area of the navigable waters of the United States or waters under the jurisdiction of the United States endangered or likely to be endangered by Coast Artillery fire in target practice or otherwise, or by the proving operations of the Government ordnance proving grounds at Sandy Hook, New Jersey, or at any Government ordnance proving ground that maybe established elsewhere on or near such waters, and of any portion or area of said waters occupied by submarine mines, mine fields, submarine cables, or other material and accessories pertaining to seacoast fortifications, or by any plant or facility engaged in the execution of any public project of river and harbor improvement; and the said Secretary shall have like power to regulate the transportation of explosives upon any of said waters : Provided, That the authority hereby conferred shall be so exercised as not unreasonably to interfere with or restrict the food fishing industry, and the regulations prescribed in pursuance hereof shall provide for the use of such waters by food fishermen operating under permits granted by the War Depart- ment.— (40 Stat., 892, chap. 143.) Sec. 2. That to enforce the regulations prescribed pursuant to this chapter, the Secretary of War may detail any public vessel in the service of the War Department, or, upon the request of the Secretary of War, the head of any other department may enforce, and the head of any such department is hereby authorized to enforce, such regulations by means of any public vessel of such department. Sec. 3. That the regulations made the Secretary of War pursuant to this Chapter shall be posted in conspicuous and appropriate places, designated by him, for the information of the public; and every person who and every corporation which shall wilKully violate any regulations made by the said Secretary pursuant to this Chapter shall be deemed guilt}^ of a misdemeanor, and upon conviction thereof in any court of competent jurisdiction shall be punished by a fine not exceeding $500, or by imprisonment (in the case of a natural person) not exceeding six months, in the discretion of the court. — (40 Stat., 893, chap. 143.) See sections 4233 and 4412, Revised Statutes, March 4, 1909, sections 217, 232, and 235 and references thereunder, as to naviga- (35 Stat., 1131, 1134, 1135), as to transporta- tion laws; and see Criminal Code, act of tion of explosives. [1918, July 10. Atlanta penitentiary ; products used by naval forces.] That the Attorney General of the United States is authorized and directed to establish, equip, maintain, and operate at the United States Penitentiary, Atlanta, Georgia, a factory or factories for the manufacture of cotton fabrics to supply the requirements of the War and Navy Departments, the Shipping Corporation, cotton duck suitable for tents and other army purposes and canvas for mail sacks and for the manufacture of mail sacks and other similar mail- carrying equipment for the use of the United States Government. The factory or factories shall not be so operated as to abolish any existing Government workshop or curtail the production withui its present limits of any such 1519 Nov. 4, 1918. PL S. STATUTES AT LARGE. Government workshop, and the articles so manufactured shall be sold only to the Government of the United States. The Attorney General is hereby further authorized and directed to acquire by purchase or condenmation proceedings such tracts of land at such points as he may determine, at a total cost of not to exceed $200,000, which may be cleared, graded, and cultivated. And the Attorney General is authorized to employ the inmates of the institution herein mentioned under such regulations as he may prescribe in the work of clearing, grading, and cultivation of such acquired tracts of land. The products of any such agricultural development, including live stock, shall be utilized in said penitentiary or be sold to the Government of the United States for the use of the military and naval forces of the United States.— (40 Stat., 896, chap. 144.) Sec. 2. That articles so manufactured shall be sold at the current market prices as determined by the Attorney General or his authorized agent, and all moneys or reimbursements received from such sales shall be deposited to the credit of the workuig capital fund created by this Act. — (40 Stat., 896-897, chap. 144.) [1918, July 18, sec. 2. Standardized screw threads, used by Navy; specifi- cations in proposals.] That it shall be the duty of said commission to ascer- tain and establish standards for screw tlireads, which shall be submitted to the Secretary of War, the Secretary of the Navy, and the Secretary of Commerce for their acceptance and approval. Such standards, when thus accepted and approved, shall be adopted and used in the several manufacturing plants under the control of the War and Navy Departments, and, so far as practicable, in all specifications for screw threads in proposals for manufactured articles, parts, or materials to be used imder the direction of these departments. — ''40 *Stat., 913, chap. 156; 40 Stat., 1291, chap. 96.) This section was reenacted, without change, by act of March 3, 1919 (40 Stat., 1291). [1918, Aug. 31, sec. 5. Wife of soldier or sailor in World War eligible for Government position,] That the wiie of a soldier or sailor serving in the present war shall not be disqualified for any position or appointment under the Government because she is a married woman. — (40 Stat., 956, chap. 166.) See note to section 416, Revised Statutes. [1918, Oct. 1, sec. 2. Navy medical department to cooperate in suppressing communicable diseases.] That the Secretary of War, the Secretary of the Navy, and the Secretary of the Treasury are authorized and directed, respec- tively, to utilize jointly the personnel and facilities of the Medical Department of the Army, the Medical Department of the Navy, and the Public Health Service, so far as possible, in aiding to combat and suppress the said diseases. — (40 Stat., 1008, chap. 179, Pub. Res. No. 42.) The first section of this resolution made an appropriation, available until June 30, 1919, for suppression of " Spanish influenza and other communicable diseases." [1918, Nov. 4. Allotments of men missing in action.] For the purpose of the payment of allotments made by the enlisted men or the payment of family allow- ances under Article II of the Act of October 6, 1917, as amended, an enlisted man reported as missing in action shall be considered as occupj/ing a pay status until his actual status has been determined by proper official authority of 1520 Medals. Pt. 3. STATUTES AT LARGE. Feb. 4, 1919. the department in which the man served or is serving : Provided, That payments authorized hereunder shall not continue for more than one year. — (40 Stat., 1024, chap. 201.) See act of October 6, 1917 (40 Stat., 402-405), and amendments noted thereunder. [1919, Jan. 12. Sale of uniforms at cost to naval oflElcers and midshipmen.] That hereafter uniforms, accouterments, and equipment shall, upon the request of any officer of the Navy or any officer of the Marine Corps or any officer of the Coast Guard while operating with the Navy or any midshipman at the Naval Academy or cadets at the Coast Guard Academy, be furnished by the Government at cost, subject to such restrictions and regulations as the Secre- tary of the Navy may prescribe. — (40 Stat., 1054, chap. 8). [1919, Feb. 4. Medals of honor, distinguished service medals, and Navy- crosses.] That the President of the United States be, and he is hereby, authorized to present, in the name of Congress, a medal of honor to any person who, while in the naval service of the United States, shall, in action involving actual conflict with the enemy, distinguish himself conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty and without detri- ment to the mission of his command or the command to which attached. Sec. 2. That the President be, and he hereby is, further authorized to present, but not in the name of Congress, a distinguished-service medal of appropriate design and a ribbon, together with, a rosette or other device to be worn in lieu thereof, to any person who, while in the naval service of the United States, since the sixth day of April, nineteen hundred and seventeen, has distinguished, or who hereafter shaU distmguish, liimself by exceptionally meritorious service to the Government in a duty of great responsibility. Sec. 3. That the President be, and he hereby is, further authorized to present, but not in the name of Congress, a Navy cross of appropriate design and a ribbon, together with a rosette or other device to be worn in lieu thereof, to any person who, while in the naval service of the United States, since the sixth day of April, nineteen hundred and seventeen, has distinguished, or who shall hereafter distinguish, himself by extraordinary heroism or distinguished service in the line of his profession, such heroism or service not being sufficient to justify the award of a medal of honor or a distinguished-service medal. Sec. 4. That each enlisted or enrolled person of the naval service to whom is awarded a medal of honor, distinguished-service medal, or a Navy cross shall, for each such award, be entitled to additional pay at the rate of $2 per month from the date of the distinguished act or service on wliich the award is based, and each bar, or other suitable emblem or insignia, in lieu of a medal of honor, distinguished-service medal, or Navy cross, as hereinafter provided for, shall entitle him to further additional pay at the rate of S2 per month from the date of the distinguished act or service for which the bar is awarded, and such additional pay shall continue throughout his active service, whether such service shall or shall not be continuous. Sec. 5. That no more than one medal of honor or one distinguished- service medal or one Navy cross shall be issued to any one person ; but for each succeeding deed or service sufficient to justify the award of a medal of honor or a distinguished-service medal or Navy cross, respectively, the President may 1521 Feb. 4, 1919. PL S. STATUTES AT LARGE. Medals. award a suitable bar, or otbor suitable emblem or insignia, to be worn with the decoration nnd tlie correspon(Hnr Marine Corps in the present war may, upon honorable discharge and return to civil life, permanently retain one complete suit of outer uniform clothing, including the overcoat, and such articles of personal apparel and equipment as may be authorized, respectively, by the Secretary of War or the Secretary of the Navy, and may wear such uniform clothing after such discharge : Provided, That the uniform above referred to shall include some distinctive mark or insignia to be prescribed, respectively, by the Secretary of War or the Secretary of the Navy, such mark or insignia to be issued, respectively, by the War Department or Navy Department to all enlisted personnel so discharged. The word "Navy" shall include the officers and enlisted personnel of the Coast Guard who have served with the Navy during the present war.— (40 Stat., 1202-1203, chap. 70.) Sec. 2. That the provisions of this Act shall apply to all persons who served in the United States Army, Navy, or IMarine Corps during the present war honorably discharged since April sixth, nineteen hundred and seventeen. And in cases where such clothing and uniforms have been restored to the Govern- ment on their discharge the same or similar clothing and uniform in kind and value as near as may be shall be returned and given to such soldiers, sailors, and marines.— (40 Stat., 1203, chap. 70.) provision for furnishing mileage and trans- portation to enlisted men of the Navy and Marine Corps on discharge, and to naval reservists on release from active service; see the act and section last cited. See act of June 3, 1916, section 125 (39 Stat., 216-217), and note thereto. Travel allowance on discharge : Section 3 of this act (40 Stat., 1203), reenacted section 126 of the act approved June 3, 1916 (39 Stat., 217), and embodied in such reenactment [1919, Mar. 1, sec. 10. Public Buildings Commission ; control of oflace space in District of Columbia.] Public Buildings Commission: With a view to the control and allotment of space in owned or leased Government buildings in the District of Columbia, a Public Buildings Commission is hereby created to be composed of two Senators to be appointed by the President of the Senate and two Members of the House of Representatives to be appointed by the Speaker, who shall serve thereon only so long as they are Members of Congress, and the vSuperintendent of the Capitol Building and Grounds, the officer in charge of 1524 Pt. 3. STATUTES AT LARGE. Mar. 3, 1919. public buildings and grounds, and the Supervising Architect or the Acting Super- vising Architect of the Treasury during any vacancy in said office. Said com- mission shall elect one of its members as chairman of the commission and is authorized to employ such expert clerical or other services as it may deem necessary. Any vacancies m said commission shall be filled in the same manner as the original appointments were made. — (40 Stat., 1269, chap. 86.) Said commission shall have the absolute control of and the allotment of all space in the several public buildings owTied or buildings leased by the United States in the District of Columbia, with the exception of the Executive Mansion and office of the President, Capitol Building, the Senate and House Office Buildings, the Capitol powder plant, the buildings under the jurisdiction of the Regents of the Smithsonian Institution, and the Congressional Library Build- ing, and shall from time to time assign and allot, for the use of the several activities of the Government, all such space. — (40 Stat., 1270, chap. 86.) See note to section 415, Revised Statutes. [1919, Mar. 1, sec. 11. Delay and waste in public printing ; restriction on periodicals; work to be done at Government Printing Oflolce.] That the Joint Committee on Printing shall have power to adopt and employ such measures as, in its discretion, may be deemed necessary to remedy any neglect, delay, duplication, or waste in the public printing and binding and the distribution of Government publications: Provided, That hereafter no journal, magazine, periodical, or other similar publication, shall be printed and issued by any branch or officer of the Government service unless the same shall have been specifically authorized by Congress * * *. That on and after July 1, 1919, all printing, binding, and blank-book work for Congress, the Executive Office, the judiciary, and every executive department, independent office, and estab- hshment of the Government, shall be done at the Government Printing Office, except such classes of work as shall be deemed by the Joint Committee on Print- ing to be urgent or necessary to have done elsewhere than in the District of Columbia for the exclusive use of any fi.eld service outside of said District. — (40 Stat., 1270, chap. 86.) See act of January 12, 1895 (28 Stat., 601-624), and particularly sections 80 and 87 (28 Stat., 621, 622). [1919, Mar. 3. Census of Guam and Samoa, etc.] That a census of the popu- lation, agriculture, manufactures, forestry and forest products, and mines and quarries of the United States shall be taken by the Director of the Census in the year nineteen hundred and twenty and every ten years thereafter. The census herein provided for shall include each State, the District of Columbia, Alaska, Hawaii, and Porto Rico. A census of Guam and Samoa shall be taken in the same year by the respective governors of said islands and a census of the Panama Canal Zone by the governor of the Canal Zone in accordance with plans prescribed or approved by the Director of the Census. — (40 Stat., 1291-1292, chap. 97.) See note to act of June 28, 1906 (34 Stat., 552) as to status of Samoa and naval governor thereof. 1525 July 11, 1919. PL S. STATUTES AT LARGE. [1919, Mar. 3, sec. 6. Preference to discharged soldiers and sailors in Gov- ernment employment.] * * * That hereafter in making appointments to clerical and other positions in the Executive branch of the Government in the District of Colmnbia or elsewliere preference shall be given to honorably dis- charged soldiers, sailors, and marines, and widows of such and to the wives of injured soldiers, sailors and marines who themselves are not qualified, but whose \vives are qualified to hold such positions. — (40 Stat., 1293, chap. 97; 41 Stat., 37, chap. 6.) This section was expressly amended and reen- See note to section 416, Revised Statutes, acted to read as above by act of July 11, 1919 (41 Stat., 37). [1919, Mar. 3, sec. 7. Transfer of employees to Census Office; reinstatement.] * * * That employees in other branches of the departmental classified service who have had previous experience in census work may be transferred without examination to the Census Oflice to serve during the whole or a part of the decennial census period, and at the end of such service the employees so transferred shall be eligible to appointment to positions in any department held by them at date of transfer to the Census Office without examination, but no employee so transferred shall within one year after such transfer receive liigher salary than he is receiving at the time of the transfer * * *. — -(40 Stat., 1294, chap. 97.) [1919, Mar. 3, sec. 3. Transfer of lands, etc., to the Public Health Service.] * * * "Yhe President is authorized to direct the transfer to the Treasury Department of the use of such lands or parts of lands, buildings, fixtures, appli- ances, furnishings, or furniture under the control of any other department of the Government not required for the purposes of such department and suitable for the uses of the Pubhc Health Service.— (40 Stat., 1303, chap. 98.) See section 418, Revised Statutes, and note thereto; and see act of March 4, 1921 (41 Stat., 1365). [1919, July 11, sec. 6. Interchange of supplies between departments.] Tliat the heads of the several executive departments and other responsible officials, in expending appropriations contained in this or any other Act, so far as possible shall purchase material, supplies, and equipment, when needed and funds are available, from other services of the Government possessing material, supplies, and ecjuipment no longer required because of the cessation of war activities. It shall be the duty of the heads of the several executive departments and other officials, before purchasing any of the articles described herein, to ascertain from the other services of the Government whether they have articles of the character described that are serviceable. And articles purchased by one service from another, if the same have not been used, shall be paid for at a reasonable price not to exceed actual cost, and if the same have been used, at a reasonable price based upon length of usage. The various services of the Government are au- thorized to sell such articles under the conditions specified, and the proceeds of such sales shall be covered into the Treasury as a miscellaneous receipt: Pro- vided, That this section shall not be construed to amend, alter, or repeal the Executive order of December 3, 1918, concerning the transfer of office material, supplies, and ecjuipment in the District of Columbia falling into disuse because of the cessation of war activities. — (41 Stat., 67-68, chap. 6.) See acts of Julv 11. 1919 (41 Stat., 132, chap. 9), May 21, 1920, section 7 (41 Stat., 613), and July li, 1919 (41 Stat., 130). 1526 Ft. 3. STATUTES AT LARGE. July 11, 1919. [1919, July 11, sec. 6. Influencing legislation.] That hereafter no part of the money appropriated by this or any other Act shall, in the absence of express authorization by Congress, be used directl}' or indirectly to pay for any personal service, advertisement, telegi'am, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress to favor or oppose, by vote or otherwise, any legislation or appropriation by Congress, whether before or after the introduction of any bill or resolution proposing such legislation or appropriation; but this shall not prevent officers and employees of the United States from communicating to Members of Congress on the request of any Member or to Congress, through the proper official channels, requests for legislation or appropriations which they deem necessary for the efficient conduct of the public business. Any officer or employee of the United States who, after notice and hearing by the superior officer vested with the power of removing him, is found to have violated or attempted to violate this section, shall be removed by such superior officer from office or employment. Any officer or employee of the United States who violates or attempts to violate this section shall also be guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not more than $500 or by imprisonment for not more than one year, or both.— (41 Stat., 68, chap. 6.) See note to Constitution. Article I, section 1; and see act of August 24, 1912, section 6 (37 Stat., 555); see also article 95, Navy Regulations, 1920. [1919, July 11, Transfer of Army ammunition to other departments.] That the Secretary of War be, and he is hereby, authorized to turn over on request from other executive departments of the Government, in his discretion, from time to time, without charge therefor, such ammunition, explosives, and other ammunition components as may prove to be or shall become surplus or unsuit- able for the purposes of the War Department and as shall be suitable for use in the proper activities of other executive departments. — (41 Stat., 130, chap. 8.) See acts of July 11, 1919, section 5 (41 Stat., 67-68, chap. 6); July 11, 1919 (41 Stat., 132, chap. 9); and May 21, 1920, section 7 (41 Stat., 613). [1919, July 11. Claims for damage to private property.] That the Secretary of the Navy is authorized to consider, ascertain, adjust, determine, and pay the amounts due in all claims for damages (other than such as are occasioned by vessels of the Navy), to and loss of privately owned property, occurring subse- quent to April G, 1917, where the amount of the claim does not exceed -1500, for which damage or loss men in the naval service or Marine Corps are found to be responsible, all payments in settlement of said claims to be made out of the appropriation "Pay, miscellaneous": Provided further, That all chiims ad- justed under this authority during any fiscal year shall be reported in detail to the Congress by the Secretary of the Navy. — (41 Stat., 132, chap. 9.) See act of June 24, 1910 (36 Stat., 607), and note thereto. [1919, July 11. Navy disbursing officers relieved from losses, etc.] The accounting officers of the Treasury shall relieve any disl)ursing officer of the Navy charged with responsibility on account of loss or deficiency while in the 1527 July 11, 1919. PL S. STATUTES AT LARGE. line of his duty, of Government funds, vouchers, records, or papers, in his charge, where such loss or deficiency occurred without fault or negligence on the part of said officer: Provided, That the Secretary of the Navy shall have determined that the officer was in the line of his duty, and the loss or deficiency occurred without fault or negligence on his part: Provided further, That the determination by the Secretary of the Navy of the aforesaid questions shall be conclusive upon the accounting officers of the Treasury: Provided further, That all cases of relief granted under this authority during any fiscal year shall be reported in detail to the Congress by the Secretary of the Nav3^ — (41 Stat., 132, chap. 9.) See Judicial Code, act of March 3, 1911, section 14.5(36 Stat.. 11 ;?6-1137). A pro\"ision for relief of disbursing officers from responsibility for illegal pajonents made during "the period of the present emer- gency," was contained in this act (41 Stat., 153), but is omitted as temporary. [1919, July 11. Interchange of supplies between Army and Navy.] The in- terchange without compensation therefor, of military stores, supplies, and equipment of every character, including real estate o%\Tied by the Government, is hereby authorized between the Army and the Navy upon the request of the head of one service and with the approval of the head of the other service. — (41 Stat., 132, chap. 9.) See acts of August 24, 1912 (37 Stat., 589), March 4, 1915 (38 Stat., 1084), July 8, 1918 (40 Stat., 817), July 9, 1918 (40 Stat., 850), July 11, 1919, section 5 (41 Stat., 67-68, chap. 6), July 11, 1919 (41 Stat., 130, chap. 8), [1919, July 11. Authorized enlisted strength, Navy, increased during na- tional emergency.] The President is hereby authorized, whenever in his judg- ment a sufficient national emergency exists, to increase the authorized enlisted strength of the Navy to 191,000 men.— (41 Stat., 137-138, chap. 9.) July 19, 1919, section 5 (41 Stat., 233), and May 21, 1920, section 7 (41 Stat., 613). See also act of March 4, 1911 (36 Stat., 1279), and references thereunder. The omitted portions of the act (41 Stat., 137) temporarily increased the "total author- ized enlisted strength of the active list of the Navy" during the current fiscal year. See note to section 1417, Revised Statutes, as to the authorized enlisted strength of the Navy under various laws; and see particu- larly act of July 1, 1918 (40 Stat., 714\ which established the permanent author- ized enlisted strength of the Navy. [1919, July 11. Permanent commissioned and enlisted strength not affected.] That nothing herein shall be construed as affecting the permanent, commis- sioned, or enlisted strength of the Regular Navy as authorized by existing law.— (41 Stat., 138, chap. 9.) The permanent commissioned strength of the Navv was established by act of August 29, 1916' (39 Stat., 576-577). The permanent enlisted strength was established by act of July 1, 1918 (40 Stat., 714); see note to sec- year, tion 1417, Revised Statutes. [1919, July 11. Naval Reserve Force, active duty restricted.] Members of the Naval Reserve Force shall not hereafter be ordered to perform active duty on shore of a kind which is ordinarily performed by civilians, and all reservists now performing such duty shall be relieved from such duty witliin thirty days after the date of approval of this Act. — (41 Stat., 138, chap. 9.) See act of August 29, 1916 (39 Stat., 587-593), and notes thereto, relating to the Naval Reserve Force. 1528 Omitted portions of this act (41 Stat., 137-138\ contained temporary provisions dealing with the commissioned and enlisted strength of the Navy for the current fiscal Pt. 3. STATUTES AT LARGE. July 11, 1919. [1919, July 11. Commissioned officers, computations as to numbers, and convening of selection boards.] The provision of existing law which requires the Secretary of the Navy to make computations semiannually as of July 1 and January 1 of each year and to convene the boards to select ofRcers of the line and of the staff corps for promotion is hereby amended so that said computa- tions shall be made and said boards shall be convened at least once each year and at such times as the Secretary of the Navy may direct, and the boards shall recommend for promotion such number of officers as may be necessary to fill vacancies then existing and which may occur during the next period of time. — (41 Stat., 139, chap. 9.) See act of August 29, 1916 (39 Stat., 577, 578), and notes thereto, as to computations and convening of selection board. [1919, July 11. Pay of Navy not reduced.] That nothing contained in this Act shall be construed to reduce the pay or allowances of any commissioned, warrant, or appointed officer or any enlisted man as authorized by law for such officer or enlisted man in his present permanent status in the Regular Navy.— (41 Stat., 139, chap. 9.) See notes to sections 1556 and 1569, Revised Statutes, as to pay of officers and enlisted men of the Navy. [1919, July 11. Pay of warrant officers. Navy, for foreign shore duty.] War- rant officers of the Navy on shore duty beyond the continental limits of the United States shall, while so serving and from the time of departm-e from and until the time of return to said limits under orders to or from such foreign-shore duty, receive the same pay as is now or may be authorized by law for warrant officers on sea duty: Provided, That this paragraph shall be effective from April 6, 1917.— (41 Stat., 140, chap. 9.) See note to section 1556, Revised Statutes, as to pay of warrant officers. [1919, July 11. Enlisted men and warrant officers credited with reserve service; membership of reservists in Naval Militia.] Any enlisted man of the Navy or IVlarine Corps who has been or may be discharged to enable him to accept appointment as a commissioned or warrant officer in the Naval Reserve Force or IVIarine Corps Reserve, and who reenlists in the Navy or IMarine Corps after the termination of his reserve service, shall be entitled, in computing service for retirement, to credit for all active reserve service ; and if he reenlists in the Navy or IVIarine Corps within four or three months, respectively, from the date of the termination of his service as an officer of the Reserve he shall be restored to the grade or rank held by him before being discharged to accept such commission or warrant, and his service in the Regular Navy or IMarine Corps, including his active service in the Naval Reserve Force or IMarine Corps Reserve, shall be regarded as continuous for pm^poses of continuous-service pay: Provided, That any warrant officer in the Navy or IVIarine Corps and any pay clerk in the IMarine Corps who has accepted or who may hereafter accept appointment as a commissioned officer in the Naval Reserve Force or IMarine Corps Reserve shall be entitled, upon the termination of his appointment as a commissioned officer in the Reserve, to revert to his former status as a warrant officer in the Navy or Marine Corps, or as a pay clerk in the Marine Corps, and shall be entitled to count all active reserve service for purposes of longevity pay and retirement: Provided, That no part or parts of any existing laws 1529 July 11, 1919. PL S. STATUTES AT LARGE. shall be construed as having discharged from the Naval Militia of any State, Territory, or the District of Columbia, those members of the National Naval Volunteers who were transferred to the Naval Reserve Force by authority of the Act of Congress making appropriations for the Naval Service which became a law on July 1, 1918; nor to prevent members of the Naval Reserve Force from being or becoming membei-s of the Naval Militia of any State, Territory, or the District of Columbia: Provided, That such membership in the Naval Militia shall not interfere with the discharge of duties bv such members thereof who are in the Naval Reserve Force. — (41 Stat., 141, chap. 9.) See notes to sections 1556, 1569, 1573, and 1612, Revised Statutes, as to pay of warrant offi- cers and enlisted men of the Navy and Marine Corps. See sections 1443, Revised Statutes, and references thereunder, as to retirement of warrant officers in the Navy; see section 1622, Revised Statutes, and note thereto, as to retirement of officers and enlisted men of the Marine Corps; see act of March 3, 1899, section 17 (30 Stat., 1008), and references thereunder as to retirement of enlisted men of the Navy; and see act of August 29, 1916 (39 Stat., 611), as to warrant officers in the Marine Corps. [1919, July 11. Reinstatement of employees who served in war with Ger- many.] That all former Government employees who have entered the military or naval service of the United States in the war with the German Government shall be reinstated on application to their former positions if they have received an honorable discharge and are qualified to perform the duties of the position. — (41 Stat., 142, chap. 9.) See note to section 416, Revised Statutes. [1919, July 11. Appropriations for maintenance of training stations.] The appropriations "Maintenance, Bm-eau of Yards and Docks," and ''Repairs and Preservation" shall be available for the maintenance of naval trainins: stations where the regular appropriations for the maintenance thereof are found to be insufficient. — (41 Stat., 145, chap. 9.) [1919, July 11. Supply Corps.] That hereafter the Pay Corps shall be called the Supply Corps. — (41 Stat., 147, chap. 9.) [1919, July 11. Fuel for Navy in District of Columbia.] Hereafter the pro- visions of the Sundry Civil Act, approved July 1, 1918, providing for the establishment of a Government fuel yard in the District of Columbia, shall not apply to the fuel required for the Naval Establishment, except the naval hospital, in the District of Columbia. — (41 Stat., 148, chap. 9.) See acts of July 1, 1918 (40 Stat., 672-673), and June 5, 1920 (41 Stat., 913). [1919, July 11. Naval Academy Band.] The Naval Academy Band shall hereafter consist of one leader, with pay and allowances of first lieutenant in the Marine Corps; one second leader, with a base pay of $81 per month; forty- five musicians, first class, with a base pay of $51 per month; twenty-seven musicians, second class, with a base pay of $44 per month; one drum major, with a base pay of $57.20 per month; and the said leader of the band, second leader of the band, drum major of the band, and the enlisted musicians of the band shall be entitled to the same benefits in respect to pay, emoluments, and retirement arising from longevity, reenlistment, and length of service as are or may hereafter become applicable to other officers or enlisted men of the Navy.— (41 Stat., 152, chap. 9.) See act of April 12, 1910 (36 Stat., 297), and tion 1569 Revised Statutes, as to temporary references thereunder; and see note to sec increases in pay of enlisted men. 1530 and the Marine Corps Reserv^e shall, as soon as practicable and in no event later than thirty days after the date of approval of this Act, be placed on inactive duty." See also act of June 4, 1920, section 2 (41 Stat., 834), forbidding enrollments in the Naval Reserve Force except for general service. Ft. S. STATUTES AT LARGE. July 19, 1919. [1919, July 11. Women enlisted in naval service.] That the words "enlisted men," as contained in prior appropriation Acts, shall not be construed to deprive women, enlisted or enrolled in the naval service, of the pay, allowances, gratuities, and other benefits granted by law to the enlisted personnel of the Navy and Marine Corps. — (41 Stat., 152, chap. 9.) See section 1, Revised Statutes, as to "words imparting the masculine gender '' being ap- plied to females; and see act of October 6, 1917, section 22 (40 Stat., 401-402), under "Definitions." By a temporary proWsion in this act (41 Stat., 138\ it was required that ''female members, except nurses, of the Naval Reserve Force [1919, July 11. Rations, Marine Corps.] That hereafter, except when de- tached by the President of the United States for duty with the Army, enlisted men of the Marine Corps shall be entitled to the same allowance for rations as are enlisted men of the Navy, under such rules and regulations as may be prescribed by the Secretary of the Navy. — (41 Stat., 154, chap. 9.) See notes to sections 1615 and 1621, Re%'ised Statutes. [1919, July 11. Sale of uniforms to marine officers.] That hereafter this appropriation shall be available for the purchase of uniforms, accouterments, and equipment for sale at cost price to officers under such regulations as the Secretary of the Navy may prescribe. — (41 Stat., 154, chap. 9.) This was a pro\T.so following appropriations i under ' ' Laws relating specifically to Marine under the title, "Clothing, Marine Corps." , Corps," subheading, "Sale of subsistence See note to section 1612, Re\'ised Statutes, ' stores, etc." [1919, July 11. Receipts of post laundries, Marine Corps.] That hereafter the funds received in payment for laundry work performed by post laundries shall be used to defray the cost of operation of said laundries and the receipts and expenditures shall be accounted for in accordance with the methods pre- scribed by law and any sums remaining at the end of the fiscal year after such cost of maintenance and operation have been defrayed shall be deposited in the Treasury to the credit of the appropriation from which the cost of operation of such plants is paid. — (41 Stat., 155-156, chap. 9.) This was a pro\'iso following appropriations for See section 3689, Revised Statutes, and note 'Contingent, Marine Corps." thereto. [1919, July 19, sec. 3. Transfer of printing equipment to Public Printer.] * * * That any officer of the Government having machinery, material, equipment or supplies for printing, binding, and blank book work, including Uthography, photolithography, and other processes of reproduction, which are no longer rec{uired or authorized for his service, shall submit a detailed report of the same to the Public Printer, and the Public Printer is hereby authorized, with the approval of the Joint Committee on Printing, to requisition such arti- cles of the character herein described as are serviceable in the Government Printing Office, and the same shall be promptly dehvered to that office. — (41 Stat., 233, chap. 24.) This was a proviso following temporary pro- visions relating to sales of supplies by exec- utive departments during the current fiscal year, and disposition of the proceeds thereof. [1919, July 19, sec. 5. Transfer of Army motor vehicles to other departments.] The Secretary of War is authorized to transfer any unused and surplus motor- 54641°— 22 97 1531 Feb. 25, 1920. Ft. 3. STATUTES AT LARGE. propelled vehicles and motor equipment of any kind, the payment for same to be made as provided herein, to any branch of the Government service having appropriations available for the purchase of said vehicles and equipment: Provided, That in case of the transfers herein authorized a reasonable price not to exceed actual cost, and if the same have been used, at a reasonable price based upon length of usage, shall be determined upon and an equivalent amount of each appropriation available for said purchase shall be covered into the Treasury as a miscellaneous receipt, and the appropriation in each case reduced accordingly: Provided further, That it shall be the duty of each official of the Government having such purchases in charge to procure the same from any such unused or surplus stock if possible: Provided further. That hereafter no transfer of motor-propelled vehicles and motor equipment, unless specifically authorized by law, shall be made free of charge to any branch of the Govern- ment service. — (41 Stat., 233, chap. 24.) See acts of July 11, 1919, section 5 (41 Stat., 67-68, chap. 6), and Jxily 11, 1919 (41 Stat., 132, chap. 9), and references thereunder. [1920, Feb. 25. Lease of naval petroleum reserves, etc.] That deposits of coal, phosphate, sodium, oil, oil shale, or gas, and lands containing such deposits owned by the United States, including those in national forests, but excluding lands acquired under the Act known as the Appalachian Forest Act, approved March 1, 1911 (Thirty-sixth Statutes, page 961), and those in national parks, and in lands withdrawn or reserved for military or naval uses or purposes, except as hereinafter provided, shall be subject to disposition in the form and manner provided by this Act to citizens of the United States, or to any associa- tion of such persons, or to any corporation organized under the laws of the United States, or of any State or Territory thereof, and in the case of coal, oil, oil shale, or gas, to municipalities: Provided, That the United States reserves the right to extract helium from all gas produced from lands permitted, leased, or otherwise granted under the provisions of this Act, under such rules and regulations as shall be prescribed by the Secretary of the Interior: Provided further, That in the extraction of helium from gas produced from such lands, it shall be so extracted as to cause no substantial delay in the delivery of gas produced from the well to the purchaser thereof: And provided further. That* citizens of another country, the laws, customs, or regulations of which, deny similar or like privileges to citizens or corporations of this country, shall not by stock ownership, stock holding, or stock control, own any interest in any lease acquired under the provisions of this Act. — (41 Stat., 437-438, chap. 85.) Sec. 18. That upon relinquishment to the United States, filed in the General Land Office within six months after the approval of this Act, of all right, title, and interest claimed and possessed prior to July 3, 1910, and con- tinuously since by the claimant or his predecessor in interest under the preexisting placer mining law to any oil or gas bearing land upon which there has been drilled one or more oil or gas wells to discovery embraced in the Executive order of withdrawal issued September 27, 1909, and not within any naval petroleum reserve, and upon payment as royalty to the United States of an amount equal to the value at the time of production of one-eighth of all the oil or gas already 1532 PL 3. STATUTES AT LARGE. Mar. 9, 1920. produced except oil or gas used for production purposes on the claim, or unavoidably lost, from such land, the claimant, or his successor, if in possession of such land, undisputed by any other claimant prior to July 1, 1919, shall be entitled to a lease thereon from the United States for a period of twenty years, at a royalty of not less than 12^ per centum of all the oil or gas produced except oil or gas used for production purposes on the claim, or unavoidably lost * * *.— (41 Stat., 443, chap. 85.) All such leases shall be made and the amount of royalty to be paid for oil and gas produced, except oil or gas used for production purposes on the claim, or unavoidably lost, after the execution of such lease shall be fixed by the Secre- tary of the Interior under appropriate rules and regulations : Provided, however, That as to all like claims situate within any naval petroleum reserve the pro- ducing wells thereon only shall be leased, together with an area of land suffi- cient for the operation thereof, upon the terms and payment of royalties for past and future production as herein provided for in the leasing of claims. * * *.— (41 Stat., 444, chap. 85.) Sec. 35. * * * That all moneys which may accrue to the United States under the provisions of this Act from lands within the naval petroleum reserves shall be deposited in the Treasury as "Miscellaneous receipts." — (41 Stat., 450-451, chap. 85.) See acts of August 25, 1914 (38 Stat., 709), August 29, 1916 (39 Stat., 55^560), and June 4, 1920(41 Stat., 813). [1920, Mar. 6. Sale of naval supplies to personnel of Coast Guard and Public Health Service.] Officers and enlisted men of the Coast Guard shall be permitte>d to purchase quartermaster supplies from the Army, Navy, and Marine Corps at the same price as is charged the officers and enlisted men of the Army, Navy, and Marine Corps. * * *. — (41 Stat., 506, chap. 94.) Hereafter officers of the Public Health Service may purchase quartermaster supplies from the Army, Navy, and Marine Corps at the same price as is charged officers of the Army, Navy, and Marine Corps. — (41 Stat., 507, chap. 94.) See act of March 4, 1913 (37 Stat., 909), and references thereunder. [1920, Mar. 6. Naval service, etc., credited to ofl5.cers of Public Health Service.] Ofiicers of the Public Health Service shall be credited with service in the Army, Navy, Marine Corps, and the Coast Guard in computing longevity pay. — (41 Stat., 507, chap. -94.) [1920, Mar. 9, sec. 10. Salvage by Government owned vessels.] That the United States, and the crew of Siuj merchant vessel owned or operated by the United States, or such corporation, shall have the right to collect and sue for salvage services rendered by such vessel and crew, and any moneys recovered therefrom bv the United States for its own benefit, and not for the benefit of the crew, shall be covered into the United States Treasury to the credit of the department of the Government of the United States, or of the United States Shipping Board, or of such corporation, having control of the possession or operation of such vessel. — (41 Stat., 528, chap. 95.) See sections 1536 and 4642, Re^dsed Statutes, and acts of August 1, 1912 (37 Stat., 242), and July 1, 1918 (40 Stat., 705). 1533 May 18, 1920. PL 3. STATUTES AT LARGE. [1920, May 18. Temporary increases in pay and allowances, naval personnel, etc.] This act provided as follows: "Tliat commencing January 1, 1920, com- missioned officers of the Army, Navy, and Marine Corps, and Public Health Service shall be paid, in addition to all pay and allowances now allowed by law, increases at rates per annum as follows: Colonels in the Army and Marine Corps, captains in the Navy, and assistant surgeons general in the Public Ilealth Service, $600 ; lieutenant colonels in the Army and Marine Corps, commanders in the Navy, and senior surg(>ons in the Public Health Service, $G00; majors in the Army and Marine Corps, lieutenant commanders in the Navy, and surgeons in the Public Health Service, $840; captains in the Army and Marine Corps, lieutenants in the Navy, and passed assistant surgeons in the Public Health Service, $720; first lieutenants in the Army and Marine Corps, lieutenants (junior grade), acting assistant surgeons and acting assistant dental siirgeons in the Navy, and assistant sm-geons in the Public Health Service, $600 ; second lieutenants in the Army and Marine Corps, and ensigns in the Navy, $420: Provided, That contract sur- geons of the Army serving full time shall re- ceive the pay of a second lieutenant. — (41 Stat., 601-602, chap. 190.) "Sec. 2. That the rights and benefits pre- scribed under the Act of April 16, 1918, granting commutation of quarters, heat, and light during the present emergency to officers of the Army on duty in the field are hereby continued and made effective untilJune 30, 1922, and shall apply equally to officers of the Navy, Marine Corps, Coast Guard, and Public Health Service: Provided, That such rights and benefits as are prescribed for officers shall apply equally for enlisted men now entitled by regulations to quarters or to commutation therefor. "Sec. 3. That, commencing January 1, 1920, warrant officers of the Navy shall be paid, in addition to all pay and allowances now allowed by law, an increase at the rate of $240 per annum. "Sec 4. That, commencing January 1, 1920, the pay of all enlisted men of the Army and Marine Corps and of members of the female Nurse Corps of the Army and Navy is hereby increased 20 per centum: Provided, That such increase shall not apply to enlisted men whose initial pay, if it has already been permanently increased since April 6, 1917, is now less than $33 per month, "Sec. 5. That all noncommissioned officers of the Army of grade of color sergeant and above as fixed by existing Army Regulations and noncommissioned officers of the Marine Corps of corresponding grades shall be entitled to one ration or commutation therefor in addition to that to which they are now entitled. The commutation value shall be determined by the President on July 1 of each fiscal year, and for the ciurent fiscal year the value shall be computed on the basis of 55 cents per ration: Provided, That Army field clerks and field clerks Quartermaster Corps, whose total pay and allowances do not exceed $2,500 per annum, shall be paid an increase at the rate of $240 per annum : Provided further, That such Army field clerks and field clerks Quarter- master Corps, whose total pay and allowances exceed $2,500 but do not exceed $2,740 per annum, shall be paid such additional amount as will make their total pay and allowances not to exceed $2,740 per annum: Provided further. That this section shall not be construed to reduce the pay and allowances of any Army field clerk or field clerk Quartermaster Corps.— (41 Stat., 602, chap. 190.) "Sec 6. That, commencing January 1, 1920, the following shall be the rate of base pay for for each enlisted rating: Chief petty officers with acting appointments, $99 per month; chief petty officers with permanent appoint- ments and mates, $126 per month; petty officers, first class, $84 per month; petty officers, second class, $72 per month ; petty officers, third class, $60 per month; nonrated men, first class, $54 per month; nonrated men, second class, $48 per month; nonrated men, third class, $33 per month: Provided, That the base pay of firemen, first class, shall be $60 per month; firemen, second class, $54 per month; firemen, third class, $48 per month: Provided further, That the rate of base pay for each rating in the Naval Academy Band shall be as follows: Second leader, with acting appointment, $99 per month, with permanent appointment, $126 per month; drum major, $84 per month; musicians, first class, $72 per month; musicians, second class, $60 per month: Provided further. That the base pay of cabin stewards and cabin cooks shall be $84 per month; wardroom stewards and ward- room cooks, $72 per month; steerage stewards and steerage cooks, $72 per month; warrant officers' stewards and warrant officers' cooks, $60 per month; mess attendants, first class, $42 per month; mess attendants, second class, $36 per month; mess attendants, third class, $33 per month: Provided further, That the re- tainer pay of those members of the Fleet Naval Reserve who, pursuant to call, shall return to active duty within one month after the approval of this Act and shall continue on active duty until the Navy shall have been recruited up to its permanent authorized strength, or until the number in the grade to which they may be assigned is filled, but not beyond June 30, 1922, shall be computed upon the base pay they are receiving when retransferred to in- active duty, plus the additions or increases pre- scribed in the Naval Appropriation Act approved August 29, 1916, for members of the Fleet Naval Reserve: Provided further , That the rates of base pay herein fixed shall not be further increased 10 per centum as authorized by an Act approved May 13, 1908, nor by the temporary war increases as authorized by section 15 of the Act approved May 22, 1917, as amended by the Act approved July 11, 1919. * * * .—(41 Stat., 602-603, chap. 190.) "Sec 9. That nothing contained in this Act shall be construed as granting any back pay or allowances to any officer or enlisted man whose 1534 Pt. 3. STATUTES AT LARGE. May 18, 1020. active service shall have terminated subsequent to December 31, 1919, and prior to the approval of this Act, unless such officers or enlisted men shall have been recalled to active service or shall have been reenlisted prior to the approval of this Act. "Sec. 10. That any enlisted man or appren- tice seaman who shall reenlist in the Xavy within one year from the date of his discharge therefrom shall, upon such reenlistment, be entitled to and shall receive the same benefits as are now authorized by law for reenlistment within four months from date of last discharge from the service: Provided, That this section shall become inoperative six months after the date of the approval of this Act. * * *. — (41 Stat., 603, chap. 190.) "Sec. 13. That the provisions of sections 1, 8, 4, 5, and 6 of this Act shall remain effective iintil the close of the fiscal year ending June 30, 1922, unless sooner amended or repealed: Pro- vided, That the rates of pay prescribed in sec- tions 4 and 6 hereof shall be the rates of pay dur- ing the current enlistment of all men in active ser-\dce on the date of the approval of this Act, and for those who enlist, reenlist, or extend their enlistment prior to July 1, 1922, for the term of such enlistment, reenlistment, or ex- tended enlistment: Provided further. That the increases pro\dded in this Act shall not enter into the computation of the retired pay of officers or enlisted men who may be retired prior to July 1, 1922: And provided further. That a special committee, to be composed of five Mem- bers of the Senate, to be appointed by the Vice President, and five Members of the House of Representatives, to be appointed by the [1920, May 18, sec. 7. Pay of civilian professors. Naval Academy.] That the Secretary of the Navy is authorized, in his discretion, to readjust the pre- vailing rates of pay of civilian professors and instructors at the United States Naval Academy: Provided, That said readjustment, which shall be effective from January 1, 1920, shall not involve an additional expenditure in excess of $55,000 for the remainder of the current fiscal year. — (41 Stat., 603, chap. 190.) See act of August 29, 1916 (39 Stat., 607), and note to section 1528, Revised Statutes. [1920, May 18, sec. 11. longevity pay, naval officers; service credited.] * * * That hereafter longevity pay for oflicers in the Army, Navy, Marine Corps, Coast Guard, Public Health Service, and Coast and Geodetic Survey shall be based on the total of all service in any or all of said services. — (41 Stat., 604, chap. 190.) See note to section 1556, Revised Statutes, under "39. Longevity pay." [1920, May 18, sec. 12. Transportation to families of officers and enlisted men on permanent change of station ; transportation of household effects.] That hereafter when any commissioned officer, noncommissioned officer of the grade of color sergeant and above, including any noncommissioned officer of the Marine Corps of corresponding grade, warrant officer, chief petty officer, or petty officer (first class) having a wife or dependent child or children, is ordered to make a permanent change of station, the United States shall fur- Speaker of the House of Representatives, shall make an investigation and report recommenda- tions to their respective Houses not later than the first Monday in January, 1922, relative to the readjustment of the pay and allowances of the commissioned and enlisted personnel of the several services herein mentioned . "Sec. 14. That nothing contained in this Act shall operate to reduce the pay or allowances of any officer or enlisted man on the active or retired list: Provided, That the allowances and gratuities now authorized by existing law are not changed hereby, except as otherwise speci- fied in this Act.— (41 Stat., 604, chap. 190.) "Sec. 15. That the appropriations 'Pay of the Navy, 1920, 'and 'Pay, Marine Corps, 1920,' are hereby made available for any of the ex- penses authorized by this Act, and any part or all of the appropriations 'Provisions, Navy, 1920,' and 'Maintenance, Quartermaster's De- partment, Marine Corps, 1920,' not required for the objects of expenditure specified in said ap- propriations, may be transferred to the appro- priations 'Pay of the Navy, 1920,' or 'Pay, Ma- rine Corps, 1920,' respectively, as may be re- quired."— (41 Stat., 604-605, chap. 190.) Omitted portions of this act which con- tained permanent legislation relating to the Na\'y are set forth below; other omitted por- tions of the act related exclusively to the Coast Guard and Coast and Geodetic Survey. As to pay of the Navy, Naval Reserve Force, and ^larine Corps, see notes to sections 1556, 1569, 1573, and 1612, Revised Statutes; as to rations of Marine Corps, see note to section 1615, Revised Statutes. 1535 May 22, 1920. PL 3. STATUTES AT LARGE. Civil Ketirement. nish transportation in kind from funds appropriated for the transportation of the Army, the Navy, the Marine Corps, the Coast Guard, the Coast and Geodetic Survey, and the Pubhc Health Service to his new station for the wife and dependent child or children: Provided, That for persons in the naval service the term ''permanent station," as used in this section, shall be interpreted to mean a shore station or the home yard of the vessel to which the person con- corned may be ordered; and a duly authorized change in home yard or home port of such vessel shall be deemed a change of station: Provided further, That if the cost of such transportation exceeds that for transportation from the old to the new station the excess cost shall be paid to the United States by the officer concerned: Provided further, That transportation supplied the wife or dependent child or children of such officer, to or from stations beyond the continental limits of the United States, shall not be other than by Government transport, if such transportation is available: And provided further. That the pereonnel of the Navy shall have the benefit of all existing laws applying to the Army and the Marine Corps for the transportation of household effects. — ''41 Stat., 604, chap. 190.) [1920, May 21, sec. 7. Transfer of appropriations between bureaus and departments ; supplies and services.] That whenever any Government bureau or department procures, by purchase or manufacture, stores or materials of any kind, or performs any service for another bureau or department, the funds of the bureau or department for which the stores or materials are to be procured or the service performed may be placed subject to the requisitions of the bureau or department making the procurement or performing the service for direct expenditure: Provided, That funds so placed with the procuring bureau shall remain available for a period of two years for the purposes for which the allo- cation was made unless sooner expended. — (41 Stat., 613, chap. 194.) A similar provision, limited to the War and j of March 4, 1915 (38 Stat., 1084); see refer- Navy Departments, was contained in act I ences under that act. [1920, May 22. Retirement of civil employees; deductions from pay for retirement fund ; etc.] That beginning at the expiration of ninety days next following the passage of this Act, all employees in the classified civil service of the United States who have on that date, or shall have on any date thereafter, reached the age of seventy years and rendered at least fifteen years of service computed as prescribed in section 3 of this Act, shall be eligible for retirement on an annuity as provided in section 2 hereof: Provided, That mechanics, city and rural letter carriers, and post-office clerks shall be eligible for retirement at sixty-five years of age, and railway postal clerks at sixty-two years of age, if said mechanics, city and rural letter carriers, post-office clerks, and railway postal clerks shall have rendered at least fifteen years of service computed as prescribed in section 3 of this Act. The provisions of this Act shall include superintendents of United States national cemeteries, employees of the Superintendent of the United States Capitol Buildings and Grounds, the Librar}^ of Congress, and the Botanic Gar- dens, excepting persons appointed by the President and confirmed by the Senate, and may be extended by Executive order, upon recommendation of the Civil Service Commssion, to include any employee or group of employees in the 1536 Civil Retirement. Pt. 3. STATUTES AT LARGE. May 22, 1920. civil service of the United States not classified at the time of the passage of this Act. The President shall have power, in his discretion, to exclude from the operation of this Act any employee or group of employees in the classified civil service whose tenure of office or employment is intermittent or of uncer- tain duration. * * * Sec. 2. [Classification and rates for annuities.] That for the pur- pose of determining the amount of annuity which retired employees shall receive, the following classifications and rates shall be established: Class A shall include all employees to whom this Act applies who shall have served the United States for a total period of thirty years or more. The annuity to a retired employee in this class shall equal 60 per centum of such employee's average annual basic salary, pay, or compensation from the United States for the ten years next preceding the date on which he or she shall retire : Provided, That in no case shall an annuity in this class exceed $720 per annum or be less than $360 per annum. — (41 Stat., 614, chap. 195.) Class B shall include all employees to whom this Act applies who shall have served the United States for a total period of twenty-seven years or more, but less than thirty years. The annuity to a retired employee in this class shall equal 54 per centum of such employee's average annual basic salary, pay, or compensation from the United States for the ten years next preceding the date on which he or she shall retire : Provided, That in no case shall an annuity in this class exceed $648 per ammm, or be less than $324 per annum. Class C shall include all employees to whom this Act applies who shall have served the United States for a total period of twenty-four years or more, but less than twenty-seven years. The annuity to a retired employee in this class shall equal 48 per centum of such employee's average annual basic salary, pay, or compensation from the United States for the ten years next preceding the date on which he or she shall retire : Provided, That in no case shall an annuity in this class exceed $576 per annum, or be less than $288 per annum. Class D shall include all employees to whom this Act applies who shall have served the United States for a total period of twenty-one years or more, but less than twenty-four years. The annuity to a retired employee in this class shall equal 42 per centum of such employee's average annual basic salary, pay, or compensation from the United States for the ten years next preceding the date on which he or she shall retire: Provided, That in no case shall an annuity in this class exceed $504 per annum, or be less than $252 per annum. Class E shall include all employees to whom this Act applies who shall have served the United States for a total period of eighteen years or more, but less than twenty-one years. The annuity to a retired emplpyee in this class shall equal 36 per centum of such employee's average annual basic salary, pay, or compensation from the United States for the ten years next preceding the date on which he or she shall retire : Provided, That in no case shall an annuity in this class exceed $432 per annum, or be less than $210 per annum. Class F shall include all employees to whom this Act applies who shall have served the United States for a total period of fifteen years or more, but less than eighteen years. The annuity to a retired employee in this class shall equal 30 per centum of such employee's average annual basic salary, pay, or compensa- tion from the United States for the ten years next preceding the date on which 1537 May 22, 1920. Pt. S. STATUTES AT LARGE. Civil Retirement. he or she shall retu-c: Providtd, That in no case shall an annuity in this class exceed S360 per annum, or be less than $180 per annum. The term ''basic salary, pay, or compensation" wherever used in this Act shall be so construed as to exclude from the operation of the Act all bonuses, allowances, overtime pay, or salary, pay, or compensation given in addition to the base pay of the positions as fixed by law or regulation. — (41 Stat., 615, chap, 195.) Sec. 3. [Computation of service.] That for the purposes of this Act and subject to the provisions of section 10 hereof, the period of service shall be computed from the date of original employment, whether as a classified or un- classified employee in the civil service of the United States, and shall include periods of service at different times and services in one or more departments, branches, or independent offices of the Government, and shall also include service performed under authority of the United States be^^ond seas, and honorable service in the Army, Navy, Marine Corps, or Coast Guard of the United States: Provided, That in the case of an employee who is eligible for and elects to receive a pension under any law, or compensation under the War Risk Insurance Act, the period of his or her militaiy or naval service upon which such pension or compensation is based shall not be included for the purpose of assignment to classes defined in section 2 hereof, but nothing contained in this Act shall be so construed as to affect in any manner his or her right to a pension, or to compensation under the War Risk Insurance Act, in addition to the annuity herein provided.^(41 Stat., 615-616, chap. 195.) It is further provided that in computing length of service for the purposes of this Act all periods of separation from the service and so much of any period of leave of absence as may exceed six months shall be excluded, and that in the case of substitutes in the Postal Service only periods of active employment shall be included. Sec. 4. [Commissioner of Pensions, jurisdiction; appeals.] That for the purpose of administration, except as otherwise provided herem, the Com- missioner of Pensions, under the direction of the Secretary of the Interior, be, and is hereby, authorized and directed to perform, or cause to be performed, any and all acts and to make such rules and regulations as may be necessary and proper for the purpose of carrying the provisions of this Act into full force and effect. An appeal to the Secretary of the Interior shall lie from the final action or order of the Commissioner of Pensions affecting the rights or interests of any person or of the United States under this Act, the procedure on appeal to be as prescribed by the Commissioner of Pensions, with the approval of the Secretary of the Interior. Sec. 5. [Disability retirement in lieu of other compensation.] That any employee to whom this Act applies who shall have served for a total period of not less than fifteen years, and who, before reaching the retirement age as fixed in section 1 hereof, becomes totally disabled for useful and efficient service by reason of disease or injury not due to vicious habits, intemperance; or willful misconduct on the part of the employee, shall upon his or her own application or upon the request or order of the head of the department, branch, or inde- pendent office concerned, be retired on an annuity under the provisions of section 2 hereof: Provided, however. That no employee shall be retired under 1538 Civil Retirement. Pt. 3. STATUTES AT LARGE. May 22, 1920. the provisions of this section until examined by a medical officer of the United States or a duly qualified physician or surgeon or board of physicians or surgeons designated by the Commissioner of Pensions for that purpose and found to be disabled in the degree and in the manner specified herein. Every annuitant refilled under the provisions of this section, unless the disability for which retired is permanent in character, shall, at the expiration of one year from the date of such retu'ement and annually thereafter until reaching the retirement age as defined in section 1 hereof, be examined under direction of the Commissioner of Pensions by a medical officer of the United States, or a duly qualified physician or surgeon or board of physicians or sur- geons designated by the Commissioner of Pensions for that purpose, in order to ascertain the nature and degree of the annuitant's disability, if any; if the annuitant recovers and is restored to his or her former earning capacity before reaching the retirement age, payment of the aimuity shall be discontinued from the date of the medical examination showing such recovery; if the annuitant fails to appear for examination as required under this section, payment of the annuity shall be suspended until continuance of the disability has been satisfac- torily established. The Commissioner of Pensions is hereby authorized to order or direct at any time such medical or other examination as he shall deem necessary to determine the facts relative to the nature and degree of disability of any employee retired on an annuity under this section. Fees for examinations made under the provisions of this section by physi- cians or surgeons who are not medical officers of the United States shall be fixed by the Commissioner of Pensions, and such fees, together with the employee's reasonable traveling and other expenses incurred in order to submit to such examinations, shall be paid out of the appropriations for the cost of administer- ing this Act.— (41 Stat., 616, chap. 195.) In all cases where the annuity is discontinued under the provisions of this section before the annuitant has received a sum equal to the total amount of his or her contributions with accrued interest, the difference shall be paid to the retired employee, or to his or her estate, upon application therefor in such form and manner as the Commissioner of Pensions may direct. No person shall be entitled to receive an annuity under the provisions of this Act, and compensation under the provisions of the Act of September 7, 1916, entitled ''An Act to provide compensation for employees of the United States suffering injuries while in the performance of their duties, and for other purposes," covering the same period of time; but this provision shall not be so construed as to bar the right of any claimant to the greater benefit conferred by either Act for any part of the same period of time. Sec. 6. [Retention in service beyond retiring age.] That all em- ployees to whom this Act applies shall, upon the expiration of ninety days next succeeding its passage, if of retirement age, or thereafter on arriving at retirement age as defined in section 1 hereof, be automatically separated from the service, and all salary, pay, or compensation shall cease from that date, and it shall be the duty of the head of each department, branch, or independent office of the Government to notify such employees under his direction of the date of such separation from the service at least sixty days in advance thereof: 1539 May 22, 1920. Pt. ,S. STATUTES AT LARGE. CivU Ketirement. Provided, That no person employed in the executive departments within the District of Cohimbia, retired under the provisions of this Act during the fiscal year ending June 30, 1921, shall be replaced by additional employees, but if the exigencies of the service so require, places made vacant by such retirement may be filled by promotion or transfer of eligible employees already in the service : Provided, That if within sixty days after the passage of this Act or not less than thirty days before the arrival of an employee at the age of retirement, the head of the department, branch, or independent office of the Government in which he or she is employed certifies to the Civil Service Commission that by reason of his or her efficiency and willingness to remain in the civil service of the United States the continuance of such employee therein would be advanta- geous to the public service, such employee may be retained for a term not ex- ceeding two years upon approval and certification by the Civil vService Com- mission, and at the end of the two years he or she may, by similar approval and certification, be continued for an additional term not exceeding two years, and so on: Provided, however. That at the end of ten years after this act becomes effective no employee shall be continued in the civil service of the United States beyond the age of retirement defined in section 1 hereof for more than four years. — (41 Stat., 617, chap. 195.) Sec. 7. [Application; certificate of head of department.] That every employee who is or hereafter becomes eligible for retirement because of age as provided in this Act, shall, within sixty days after its passage or thirty days before reaching the -retirement age, or at any time thereafter, file with the Commissioner of Pensions, in such form as he may prescribe, an application for an annuity, supported by a certificate from the head of the department, branch, or independent office of the Government in which the applicant has been em- ployed, stating the age and period or periods of service of the applicant and salary, pay, or compensation received during such periods, as shown by the official records: Provided, however, That in the case of an employee who is to be continued in the civil service of the United States beyond the retirement age as provided in section 6 hereof, he or she may make application for retirement at any time within such period of continuance in the service ; but nothing con- tained in this Act shall be construed to prevent the compulsory retirement of such employee when in the judgment of the head of the department, branch, or independent office in which he or she is employed such retirement would pro- mote the best interests of the service. — (41 Stat., 617-618, chap. 195.) Upon receipt of satisfactory evidence the Commissioner of Pensions shall forthwith adjudicate the claim of the applicant, and if title to annuity be estab- lished, a proper certificate shall be issued to the annuitant under the seal of the Department of the Interior. Annuities granted under this Act for retirement on account of age shall commence from the date of separation from the service on or after the date this Act shall take effect, and shall continue during the life of the annuitant. Annui- ties granted for disability under the provisions of section 5 hereof shall be subject to the limitations specified in said section. Sec. 8. [Deductions from salaries; donations, etc.] That beginning on the first day of the third month next following the passage of this Act and 1540 Civil Retirement. Pt. 3. STATUTES AT LARGE. May 22, 1920. monthly thereafter there shall be deducted and withheld from the basic salary, pay, or compensation of each employee to whom this Act applies a sum equal to 2^ per centum of such employee's basic salary, pay, or compensation. The Secretary of the Treasury shall cause the said deductions to be withheld from all specific appropriations for the particular salaries or compensation from which the deductions are made and from all allotments out of lump-sum appropria- tions for payments of such salaries or compensation for each fiscal year, and said sums shall be transferred on the books of the Treasury Department to the credit of a special fund to be known as "the civil-service retirement and disa- bility fund," and said fund is hereby appropriated for the payment of annuities, refunds, and allowances as provided in this Act. The Secretary of the Treasury is hereby directed to invest from time to time, in interest-bearing securities of the United States, such portions of the '' civil-service retirement and disability fund" hereby created as in his judgment may not be immediately required for the payment of annuities, refunds, and allowances as herein provided, and the income derived from such investments shall constitute a part of said fund for the purpose of paying annuities and of carrying out the provisions of section 1 1 of this Act. The Secretary of the Treasury is hereby authorized and empowered in carrying out the provisions of this Act to supplement the individual contribu- tions of employees with moneys received in the form of donations, gifts, legacies, bequests, or otherwise, and to receive, invest, and disburse for the purposes of this Act all moneys which may be contributed by private individuals or cor- porations or organizations for the benefit of civil-service employees generally or any special class of employees. Sec. 9. [Deductions compulsory.] That every employee coming within the provisions of this Act shall be deemed to consent and agree to the deductions from salary, pay, or compensation as provided in section 8 hereof, and payment less such deductions shall be a full and complete discharge and acquittance of all claims and demands whatsoever for all regular services rendered by such employee during the period covered by such payment, except the right to the benefits to which he or she shall be entitled under the provisions of this Act, notwithstanding the provisions of sections 167, 168, and 169 of the Revised Statutes of the United States, and of any other law, rule, or regulation affecting the salary, pay, or conupensation of any person or persons employed in the civil service to whom this Act applies. — (41 Stat., 618, chap. 195.) Sec. 10. [Employees reinstated, etc.] That upon the transfer of any employee from an unclassified to a classified status, or upon the reinstatement of a former employee, credit for past service rendered subsequent to the date this Act shall take effect, or for any part thereof, shall be granted only upon deposit with the Treasurer of the United States of the amount of such deduc- tions with interest as provided in this Act as would have been made for the periods of actual service, or part thereof, for which credit is to be given, but such interest shall not be computed for periods of separation from the service: Provided, That failure to make such deposit shall not deprive the employee of credit for any past service rendered prior to the date this Act shall become operative, and to which he or she would otherwise be entitled. — (41 Stat., 618-619, chap. 195.) 1541 M0.y22, 1920. Pt. S. STATUTES AT LARGE. Civil Ketirement. Sec. U. [Payment of deductions on separation from service, etc.] That in the case of an employee in the cbissified civil service of the United States who shall be transferred to an unclassified position, and in the case of any employee to whom this Act applies who shall become absolutely separated from the service before becoming eligible for retirement on an annuity, the total amount of deductions of salary, pay, or compensation with accrued interest computed at the rate of 4 per centum per annum, compounded on June 30 of each fiscal year, shall, upon application, be returned to such employee: Pro- vided, Tliat all money so returned to an employee must be redeposited with interest before such employee may derive any benefit under the provisions of this Act, upon reinstatement or retransfer to a classified position; and in case an annuitant shall die without having received in annuities an amount equal to the total amount of the deductions from his or her salary, pay, or compensa- tion, together with interest thereon at 4 per centum per annum compounded as herein provided up to the time of his or her death, the excess of the said accumulated deductions over the said annuity payments shall be paid in one sum to his or her legal representatives upon the establishment of a valid claim therefor; and in case an employee shall die without having reached the retire- ment age or without having established a valid claim for annuity, the total amount of deductions with accrued interest as herein provided shall be paid to the legal representatives of such employee: Provided, That if in case of death the amount of deductions to be paid under the provisions of this section does not exceed S300, and if there has been no demand upon the Commissioner of Pensions by a duly appointed executor or administrator, the payment may be made, after the expiration of three months from date of death, to such person or persons as may appear in the judgment of the Commissioner of Pensions to be legally entitled to the proceeds of the estate, and such payment shall be a bar to recovery by any other person. wSec. 12. [Monthly payment of annuities.] That annuities granted under the terms of this Act shall be due and payable monthly on the first business day of the month following the month or other period for whicli the annuity shall have accrued, and payment of all annuities, refunds, and allow- ances granted hereunder shall be made by checks drawn and issued by the dis- bursing clerk for the payment of pensions in such form and manner and with such safeguards as shall be prescribed by the Secretary of the Interior in ac- cordance with the laws, rules, and regulations governing accountmg that may be found applicable to such payments. — (41 Stat., 619, chap. 195.) Sec. 13. [Reports to be made by departments, etc.] That it shall be the duty of the head of each executive department and the head of each in- dependent establishment of the Government not within the jurisdiction of any executive department to report to the Civil Service Commission in such manner as said commission may prescribe, the name and grade of eacli em- ployee to whom this Act applies in or under said department or establishment who shall be at any time in a nonpay status, showing the dates such employee was in a nonpay status, and the amount of salary, pay, or compensation lost by the employee by reason of such absence. The Civil Service Commission shall keep a record of appointments, transfers, changes in grade, separations from the service, reinstatements, loss of pay, and such other information 1542 Civil Retirement. Ft. 3. STATUTES AT LARGE. May 22, 1920. concerning individual service as may be deemed essential to a proper determina- tion of rights under this Act, and shall furnish the Commissioner of Pensions such reports therefrom as he shall from time to time request as necessary to the proper adjustment of any claim hereunder, and shall prepare and keep all needful tables and records required for carrying out the provisions of this Act, including data showing the mortality experience of the employees in the service, and the percentage of withdrawal from such service, and any other information that may serve as a guide for future valuations and adjustments of the plan for the retirement of employees under this Act, — (41 Stat., 619-620, chap. 195.) The Commissioner of Pensions shall make a detailed comparative report annually showing all receipts and disbursements on account of refunds, allow- ances, and annuities, together with the total number of persons receiving annuities and the amounts paid them. Sec. 14. [Moneys not subject to attachment, etc.] That none of the moneys mentioned in this Act shall be assignable, either in law or equity, or be subject to execution, levy, or attachment, garnishment, or other legal process.— (41 Stat., 620, chap. 195.) [1920, May 29. Receipts from publications, Hydrographic Office.] All sums received from the sale of maps, charts, and other publications issued by the Hydrographic Office after June 30, 1921, shall be covered into the Treasury of the United States as miscellaneous receipts. — (41 Stat., 665, chap. 214.) See section 443, Revised Statutes, and note thereto. [1920, May 29, Sec. 4. Typewriters, sale or exchange restricted.] * * * That hereafter no typewriter that has been used less than three years shall be sold, exchanged, or given as part payment for anotlier typewriter. — (41 Stat., 689, chap., 214.) A somewhat different provision on the same subject is contained in act of June 5, 1920, section 7 (41 Stat., 947). [1920, May 29, sec. 7. Statement of bnildings rented, District of Columbia.] That hereafter the statement of buildings rented within the District of Columbia for the use of the Government, required by the Act of July 16, 1892, shall indicate, in addition to the data required by section 3 of the Act of IVIay 1, 1913, the cost of the care, maintenance, and operation of each building per square foot of floor space of the building or portion of building rented. — (41 Stat., 691, chap. 214.) See acts of Julv 16, 1892 (27 Stat., 199), and May 1, 1913, section 3 (38 Stat., 3). As to annual report concerning Government- owned buildings in the District of Colum- bia, see act of June 5, 1920, section 3 (41 Stat., 945). [1920, June 4. Passports, Government officers and employees.] That no fee shall be collected for passports issued to officers or employees of tlie United States proceeding abroad in the discharge of their official duties, or to members of their immediate families, or to seamen, or to widows, children, parents, brothers, and sisters of American soldiers, sailors, or marines, buried abroad whose journey is undertaken for the purpose and with the intent of visiting the graves of such soldiers, sailors, or marines, which facts shall be made a part of the application for the passport.— (41 Stat., 750, chap. 223.) 1543 June 4, 1920. Pt. S. STATUTES AT LARGE. [1920, June 4. Articles of War.] * * * Art. 2. Persons subject to MILITARY L.vw. — Tlio following pcrsons are subject to these articles and shall be understooil as included in the term ''any person subject to military law," or "persons subject to military law," whenever used in these articles: Provided, That nothing contained in this Act, except as specifically provided in Article 2, subparagraph (c), shall be construed to apply to any person under the United States naval jurisdiction unless otherwise specifically provided by law. (a) All officers, members of the Army Nurse Corps, warrant officers, Army field clerks, field clerks Quartermaster Corps, and soldiers belonging to the Regular Army of the United States; all volunteers, from the dates of their muster or acceptance into the military service of the United States; and all other persons lawfully called, drafted, or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft or order to obey the same; (b) Cadets; (c) Officers and soldiers of the Marine Corps when detached for service with the armies of the United States by order of the President: Provided, That an officer or soldier of the Marine Corps when so detached may be tried by military court-martial for an offense committed against the laws for the govern- ment of the naval service prior to his detachment, and for an offense committed against these articles he may be tried by a naval court-martial after such detachment ceases; (d) All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles; (e) All persons under sentence adjudged by courts-martial; (f) All persons admitted into the Regular Army Soldiers' Home at Wash- ington, District of Columbia. * * *.— (41 Stat., 787, chap. 227.) Art. 4. Who may serve on courts-martial. — All officers in the mili- tary service of the United States, and officers of the Marine Corps when detached for service with the Army by order of the President, shall be competent to serve on courts-martial for the trial of any persons who may lawfully be brought before such courts for trial. * * *.— (41 Stat., 788, chap. 227.) Art. 60. Entertaining a deserter. — Any officer who, after having discovered that a soldier in his command is a deserter from the military or naval service or from the Marine Corps, retains such deserter in his command without informing superior authority or the commander of the organization to which the deserter belongs, shall be punished as a court-martial may direct. * * *.— (41 Stat., 800, chap. 227.) Art. 120. Command when different corps or commands happen to JOIN. — When diff"erent corps or commands of the military forces of the United States happen to join or do duty together, the officer highest in rank of the line of the Regular Army, Marine Corps, forces drafted or called into the service of the United States, or Volunteers, there on duty, shall, subject to the pro- visions of the last preceding article, command the whole and give orders 1544 rt. S. STATUTES AT LARGE. June 4, 1920. for what is needful in the service, unless otherwise directed by the Presi- dent * * *.— (41 Stat., 811, chap. 227.) See note to section 1342, Revised Statutes. [1920, June 4. Special allowances to naval personnel.] That this appro- priation and the appropriation "Pay, Marine Corps," shall be available for special allowances for maintenance to officers and enlisted men of the Navy and Marine Corps serving under unusual conditions. — (41 Stat., 813, chap. 228.) This was a proviso following appropriations for See note to section 1558, Revised Statutes, the naval service under the caption "Pay, Miscellaneous." [1920, June 4. Naval petroleum reserves.] That the Secretary of the Navy is directed to talce possession of all properties within the naval petroleum reserves as are or may become subject to the control and use by the United States for naval purposes, and on which there are no pending claims or appli- cations for permits or leases under the provisions of an Act of Congress approved February 25, 1920, entitled ''An Act to provide for the mining of coal, phosphate, oil, oil shale, gas, and sodium on the public domain," or pending applications for United States patent under any law; to conserve, develop, use, and operate the same in his discretion, directly or by contract, lease, or otherwise, and to use, store, exchange, or sell the oil and gas products thereof, and those from all royalty oil from lands in the naval reserves, for the benefit of the United States: And 'provided further, That the rights of any claimant under said Act of February 25, 1920, are not affected adversely thereby: And provided further, That such sums as have been or may be turned into the Treasury of the United States from royalties on lands within the naval petroleum reserves prior to July 1, 1921, not to exceed $500,000, are hereby made available for this purpose until July 1, 1922: Provided further. That this appropriation shall be reimbursed from the proper appropriations on account of the oil and gas products from said properties used by the United States at such rate, not in excess of the market value of the oil, as the Secretary of the Navy may direct. — (41 Stat., 813-814, chap. 228.) See act of February 25, 1920 (41 Stat., 437-451); see also acts of August 25, 1914 (38 Stat.. 709) and August 29, 1916 (39 Stat., 559-560). [1920, June 4. Claims for damage caused by naval aircraft.] That the Secretary of the Navy is hereby authorized to consider, ascertain, adjust, determine, and pay out of this appropriation the amounts due on claims for damages whicli liave occurred or may occur to private property growing out of the operations of naval aircraft, where such claim does not exceed the sum of $500: Provided further. That all claims adjusted under this authority during any fiscal year shall be reported in detail to the Congress by the Secretary of the Navy.— (41 Stat., 814, chap. 228.) Similar provision was contained in act of July 11, 1919 (41 Stat., 133); see also act of .Tune 24, 1910 (36 Stat., 607), and references thereunder. [1920, June 4. Hydrographic Office, naval officers detailed to.] That the Secretary of the Navy is authorized to detail such naval officers as may be necessary to the Hydrographic Office. — (41 Stat., 816, chap. 228.) Similar provision was contained in acts of July 1, 1918 (40 Stat., 708), and July 11, 1919 (41 Stat., 135). See section 431, Revised Statutes, and note thereto. 1545 June 4, 1920. PL S. STATUTES AT LARGE. [1920, June 4. Summer schools for boys ; enrollments in Naval Reserve Force.] The Secrettuy of the Navy is hereby authorized, in his direction, to estabUsh at two of the permanent naval training stations experimental summer schools for boys between the ages of sixteen and twenty years. For this purpose he is authorized to use such buildings, or other accommodations, at such training stations; to loan any naval equipment necessary for such purposes, and to give instructions which will fit them for service in the Navy of the United States. He is empowered to establish and enforce such rules within the camp as may be necessary and to detail such members of the naval personnel as may be required in order to encourage and execute the spirit of this Act. The Secretary of the Navy is further authorized to loan the necessary naval uniforms during the period of training and to furnish subsistence, medical attendance, and other necessary incidental expenses for those attending these schools : Provided, That those under instruction, with the consent of their parents or their guardians, shall enroll in the Naval Reserve Force for not less than three months, and no person not so enrolled shall be admitted to said training schools. For carrying out the provisions of this paragraph the sum of $200,000 is appropriated. — (41 Stat., 817, chap. 228.) See act of August 29, 1916 (39 Stat., 587), as to enrollments in Naval Reserve Force. [1920, June 4. Naval militia made part of Naval Reserve Force.] This provision read as follows: "That, until June 30, 1922, of the Organized Militia as provided by law, such part as may be duly prescribed in any State, Territory, or the District of Columbia shall constitute a Naval Militia; and, until June 30, 1922, such of the Naval Militia as now is in existence, and as now organized and prescribed by the Secretary of the Na\'y under authority of the Act of Con- gress approved February 16, 1914, shall be a part of the Naval Reserve Force, and the Sec- retary of the Navy is authorized to maintain and provide for said Naval Militia as provided in said Act: Provided further, That upon their enrollment in the Naval Reserve Force, and not otherwise, until June 30, 1922, the mem- bers of said Naval Militia shall have all the benefits, gratuities, privileges, and emoluments provided by law for other members of the Naval Reserve Force; and that, with the approval of the Secretary of the Navy, duty performed in the Naval Militia may be counted as active service for the maintenance of efficiency re- quired by law for members of the Naval Reserve Force: And provided further, That all moneys appropriated for the Naval Reserve Force or for the Naval Militia shall constitute one fund and hereby are made available, under the direc- tion of the Secretary of the Navy, for both." (41 Stat., 817-818, chap. 228.) It temporarily modified the act of July 1, 1918 (40 Stat., 708), which repealed all laws relating to the Naval Militia. The act of Feb- ruary 16, 1914 (38 Stat., 283-290), referred to above, is omitted from this compilation, in bo far as relates to the Naval Militia, because of the repealing act of July 1, 1918, above cited, and the temporary character of this provision in the act of June 4, 1920. [1920, June 4. Automobiles, quarterly reports.] Quarterly reports on all gasoline passenger and freight automobiles shall be made on Form number 124, and one copy of each report shall be filed in the Bureau of Yards and Docks. — (41 Stat., 819, chap. 228.) [1920, June 4. Retainer pay, Naval Reserve Force, withheld for cause.] That retainer pay provided by existing law shall not be paid to any member of the Naval Reserve Force who fails to train as provided by law during the year for which he fails to train. — (41 Stat., 824, chap. 228.) See note to section 1556, Revised Statutes, as to pay of Naval Reserve Force; see ajso sec- tion 9 of this act (41 Stat., 837), set forth below. [1920, June 4. Death gratuity, six months' pay.] That hereafter, immediately upon official notification of the death from wounds or disease, not the result 1546 PL 3. STATUTES AT LARGE. June 4, 1920. of his or her own misconduct, of any officer, enlisted man, or nurse on the active list of the Regular Navy or Regular Marine Corps, or on the retired list when on active duty, the Paymaster General of the Navy shall cause to be paid to the widow, and if there be no widow to the child or children, and if there be no widow or child, to any other dependent relative of such officer, enlisted man, or nurse previously designated by him or her, an amount equal to six months' pay at the rate received by such officer, enlisted man, or nurse at the date of his or her death. The Secretary of the Navy shall establish regulations requiring each officer and enlisted man or nurse having no wife or child to designate the proper dependent relative to whom this amount shall be paid in case of his or her death. Said amount shall be paid from funds appropriated for the pay of the Navy and pay of the Marine Corps, respectively: Provided, That nothing in this section or in other existing legislation shall be construed as making the provisions of this section applicable to officers, enlisted men, or nurses of any forces of the Navy of the United States other than those of the regular Navy and Marine Corps, and nothing in this section shall be construed to apply in commissioned grades to any officers except those holding permanent or probationary appointments in the Regular Navy or Marine Corps : Provided, That the provisions of this sec- tion shall apply to the officers and enlisted men of the Coast Guard, and the Sec- retary of the Treasury will cause payment to be made accordingly. — (41 Stat., 824-825, chap. 228.) officers on active duty, having previously been limited to officers of the active list. On the same day another act (War Risk Insurance amendment of Oct. 6, 1917, sec. 312, chap. 105) enacted that "the laws provid- ing for gratuities or payments in the event of death in the service and existing pension laws shall not be applicable after the enactment of this amendment to persons now in or hereafter entering the military or naval service, or to their widows, children, or their dependents, except in so far as rights under any such law shall have heretofore accrued." It was held by the Attorney General (31 Op. Atty. Gen., 205) that the enactment last quoted (sec. 312 of the act of Oct. 6, 1917, 40 Stat. , 408\ repealed the act of October 6, 1917 (40 Stat., 392), pro^'iding for pavment of gratuities. Section 312 of 'the act of October 6, 1917 (40 Stat., 408), was amended and reenacted bv act of June 25, 1918, section 17 (40 Stat., 613), so as to render prior gratuity and pension laws inapplicable to persons ' " in the active military or naval service" on October 6, 1917, or who thereafter entered the '"active military or naval service," or to their widows, etc. Prior legislation.— An allowance of six months' pay in cases of death occurring in line of duty was first authorized in the Navy by act of May 13, 1908 (35 Stat., 128-129). The provision of that act was expressly amended and reenacted by act of August 22, 1912 (37 Stat 329), and further amendments were made by acts of March 3, 1915 (38 Stat., 938), and August 29, 1916 (39 Stat., 572), relating to deductions from the gratuity on account of funeral expenses. By the same act of March 3, 1915 (38 Stat., 939), provision was made for allowance of one year's pay, in the cases of officers and enlisted men whose death resulted from aAiation accidents. By act of October 6, 1917 (40 Stat., 392, chap. 89), it was provided that the enactment of August 22, 1912, as amended by act of March 3, 1915, both above cited, ''be, and the same is hereby, amended by inserting after the words 'on the active list of the Na^■y or Iklarine Corps ' a comma and the words ' or of any retired officer or enlisted man serving on active duty during the continuance of the present war,'" thereby extending the prior legislation on this subject to include retired [1920, June 4. Mining coal in Alaska.] That $1,000,000 of this appro- priation shall be available for use, in the discretion of the Secretary of the Navy, in mining coal or contracting for the same in Alaska, the transportation of the same, and the construction of coal bunkers and the necessary docks for use in supplying ships therewith; and the Secretary of the Navy is hereby authorized to select from the public coal lands in Alaska such areas as may be 54641°— 22- -98 1547 June 4, 1920. PL 3. STATUTES AT LARGE. necessary for use by him for the purposes stated herein. — (41 Stat., 826, chap. 228.) This was a proA-iso following appropriatione for the naval service under tlie caption "Fuel and transportation"; similar pro- vision was contained in acts of July 1, 1918 (40 Stat., 730), and July 11, 1919 (41 Stat., 148). See act of October 20, 1914, section 2 (38 Stat., 742). [1920, June 4. Change in name of bureau.] The Bureau of Steam Engi- neering hereafter sliall he designated the "Bureau of Engineering." — (41 Stat., 828, chap. 228.) See section 419, Revised Statutes. [1920, June 4. Enlisted strength, Marine Corps.] The authorized enhsted strength of the active hst of the Marine Corps is hereby permanently estabhshed at twenty-seven thousand four hundred, distribution in the various grades to be made in the same proportion as provided under existing law. — (41 Stat., 830, chap. 228.) See note to section 1596, Revised Statutes. [1920, June 4. Temporary and reserve officers. Marine Corps; transfer to permanent service.] This provision read as follows: ' ' That all officers serving temporarily in the grades of captain and below upon the date of the passage of this Act shall be eligible to fill existing vacancies and those hereby created in the permanent authorized strength in said grades by transfer to or reappointment in the permanent Marine Corps in the grades not above that of captain. Transfers so made shall be without regard to aoe, and if found not quali- fied for transfer to the same grade as that held by them on the date of transfer then to lower grades after qualification. All officers so trans- ferred shall establish to the satisfaction of the Secretary of the Navy, under such rules as he may prescribe, their mental, moral, profes- sional, and physical qualifications to perform the duties of the grade to which transferred or reappointed and shall take precedence with each other and with other officers of the Marine Corps in such order as may be recommended by a board of marine officers and approved by the Secretary of the Navy: Provided, That all persons who served honorably as officers in the Marine Corps or Marine Corps Reserve on active duty at any time between April 6, 1917, and the date of the passage of this Act and who have been honorably discharged or assigned to inactive duty shall be eligible for permanent appointment in the same or a lower rank than that held on discharge or assignment to in- active duty, but not above the rank of captain, to fill vacancies existing or hereby created in the permanent authorized strength of the Marine Corps under the same conditions as those above prescribed for officers now in the service: Provided further, That officers now holding temporary commissions in the Marine Corps and who have had more than ten years' service therein, if not found qualified for per- manent commissions, and who are recom- mended by the board herein pro\ided for, may be appointed warrant officers in the Marine Corps; and the authorized number of warrant olhcers is hereby increased by a number not to exceed fifty to provide for the appointment of the aforesaid officers: Provided further , That all transfers and appointments made in accord- ance with the provisions of this section shall be accomplished by June 30, 1921: Provided fur- ther, That the officers now holding temporary appointments as commissioned officers in the Marine Corps may retain their temporary com- missions until the permanent appointments provided for in the foregoing section shall have been made." (41 Stat., 830, chap. 228.) [1920, June 4, sec. 2. Naval reservists, active duty authorized; enroll- ments restricted ; commissioned strength of Navy.] That the Secretary of the Navy is hereby authorized to employ on active duty, with their own consent, members of the Naval Reserve Force in enlisted ratings, the number so employed not to exceed during any fiscal year the average of twenty thousand men: Provided, That the number of naval reservists, so employed on active duty, together with the total number of enlisted men in the Regular Navy, shall not exceed the total enlisted strength of the Navy as authorized by law: Provided further, That such members of the Naval Reserve Force so employed shall serve on active duty for not less than twelve nor more than eighteen months 1548 Pt. 3. STATUTES AT LARGE. June 4, 1920. unless sooner released: Provided further^ That hereafter no person shall be en- rolled in the Naval Reserve Force except for general service: And provided further, That the number of commissioned officers of the line, permanent, tem- porary, and reserve on active duty shall not exceed 4 per centum of the total authorized enlisted strength of the Regular Navy, and the number of staff officers on active duty of whatever kind shall be in the same proportions as authorized by existing law: Provided further, That five hundred reserve officers are also authorized to be employed in the aviation and auxiliary service. — (41 Stat., 834, chap. 228.) See act of August 29, 1916 (39 Stat., 587-593), as to the Naval Reserve Force; see note to section 1417, Revised Statutes, as to authorized enlisted strength of the Navy; [1920, June 4, sec. 2. Temporary and reserve officers continued on duty.] This provision read as follows: I prescribed, officers of the Naval Reserve Force see act of August 29, 1916 (39 Stat., 576- 577), as to authorized commissioned strength of the Navy. "That, until December 31, 1921, temporary appointments now existing may be continued in force in any grade or rank, not to exceed the number allowed in any grade or rank based upon the total permanent authorized com- missioned strength of the line or of any staff corps; and, within the limitations herein may, with their own consent, be continued on active duty ashore or afloat, including three on shore duty in the Historical Section of the Office of Naval Intelligence, who may be re- tained on active duty beyond the age of dis- enrollment but not beyond June 30, 1922. — (41 Stat., 834, chap. 228.) [1920, June 4, sec. 2. Permanent Navy not reduced.] That nothing herein shall be construed as reducing the permanent commissioned or enlisted strength of the Regular Navy as authorized by existing law. — (41 Stat., 834, chap. 228.) [1920, June 4, sec. 2. Retirement of reserve and temporary officers.] That all officers of the Naval Reserve Force and temporary officers of the Navy who have heretofore incuiTcd or may hereafter incur physical disability in line of duty shall be eligible for retirement under the same conditions as now provided by law for officers of the Regular Navy who have incurred physical disability in line of duty.— (41 Stat., 834, chap. 228.) Retirement of officers of the Regular Navy for physical disability is provided for by sec- tions 1448-1457, Revised Statutes; retire- ment of temporary officers was pre\'iously authorized by act of May 22, 1917, section 9 (40 Stat., 86); retirement of enrolled members of the Naval Reserve Force after 20 years' service, and of transferred mem- bers of the Fleet Naval Reserve after 30 years' service, was authorized by act of August 29, 1916 (39 Stat., 588 and 591\ as amended bv act of July 1, 1918 (40 Stat., 710). By act of July 1, 1918 (40 Stat., 710), it was provided "that no member of the Naval Reserve Force shall be eligible for retire- ment other than for physical disability in- curred in line of duty." [1920, June 4, sec. 3. Transfer to permanent Navy of temporary, reserve, and Coast Guard officers; naval personnel credited with Coast Guard service.] That officers holding temporary commissioned and warrant ranks in the Navy and members of the Naval Reserve Force of commissioned and warrant ranks shall be eligible for transfer to an appointment in the permanent grades or ranks in the Navy for wliich they may be found qualified not above that held by them on the date of transfer, but not to exceed a total of one thousand two hundred commissioned officers in the line, of which number five hundred may be appointed from class five, Naval Reserve Flying Corps, with proportionate number in all Staff Corps as now authorized by law, except that the Medical, Dental, and Supply Corps shall be entitled to such additional numbers as are necessary to make up the full quota of officers in those corps, as now authorized by law: 1549 June 4, 1920. Pi. -i. STATUTES AT LARGE. Provided, That officers so appointed to the line of the Navy shall take rank in accordance with their precedence while holding temporary rank, and members' of the Nav^al Reserve Force of commissioned and warrant ranks found qualified for a given rank shall be arranged according to their precedence among them- selves and commissicmed in the permanent service next after the lowest tempo- rary officer who qualifies for the same rank and is appointed in accordance with the provisions of this Act. Provided further, That included in the number of transfers and appoint- ments hereinbefore allowed, commissioned officers of the Coast Guard, who have served creditably mider the Navy Department in the War with the German Government, upon suitable application approved by the Secretary of the Navy and the Secretary of the Treasury, may be appointed to a permanent rank or grade in the Navy for which found qualified by a board of naval officers under the provisions of existing law, but not above the rank of lieutenant commander, and shall take such precedence therein as the Secretary of the Navy may deter- mine: Provided fHriher, That for the purposes of computing longevity pay and retirement privileges of officers and enlisted men of the Navy, all creditable service in the Coast Guard and former Revenue-Cutter Service shall be counted. — (41 Stat., 834-835, chap. 228.) Temporary appointments were to terminate not later than December 31, 1921, in accordance with section 2 of this act (41 Stat., 834), set forth above. Precedence of all officers transferred under this section to the staff corps was to be fixed upon recommendation of a board of naval officers in accordance with section 4 of this act, set forth below, which also limited transfers to rank of lieutenant. Coast Guard Service was credited to naval offi- cers for pay purposes by act of May 18, 1920, section 11 (41 Stat., 604). Qualifications for transfer and appoint- ment. — -No transfer or appointment can be made under this pro\dsion unless the appointee, at the time of such appointment, holds a tem- porary commissioned or warrant rank in the Navy or is a member of the Naval Reserve Force. (File 26521-473, Oct. 24, 1921.) As all temporary appointments, if not sooner revoked, will automatically terminate on December 31, 1921, under section 2 of this act (set forth above), that date would be the latest on which temporary officers could ])e appointed to the Navy under "section 3. (File 26521-473, Oct. 24, 1921.) [1920, June 4, sec. 4. Commissioned warrant officers with war service, pro- motion of ; precedence of transferred officers ; restriction on permanent rank ; reversion to former status on professional failure.] That in addition to the num- ber of tranfers and appointments hereinbefore allowed, commissioned warrant officers of more than fifteen years' service since date of warrant or date of first appointment as paymaster's clerk, pharmacist or mate, who have creditably served in the war with the German Government in temporary commissioned ranks or grades in the regular Navy, shall be appointed to a permanent rank or grade for which they may be qualified as established and shown by their records of service during their term of service not above the temporary rank or grade held by them at the time of transfer: Provided, That officers so transferred to the line of the Navy shall take rank therein in accordance with their prece- dence while holding temporary rank: Provided further, That all officers so trans- ferred in accordance with sections 3 and 4 of this Act to the staff corps of the Navy shall take precedence with each other and with other officers in the Navy in such order as may be recommended by a board of naval officers and approved by the Secretary of the Navy: Provided further, That no transfers or appoint- ments made in accordance with sections 3 and 4 of tliis Act shall be to a higher grade or rank than lieutenant in the Navy: And provided further. That officers 1550 Pt. 3. STATUTES AT LARGE. June 4, 1020. appointed to the permanent Navy in accordance with the foregoing sections who now hold permanent warrant or permanent commissioned warrant rank in the United States Navy shall, if they thereafter fail professionally on exam- ination for promotion, revert to such permanent warrant or permanent com- missioned warrant status. — (41 Stat., 835, chap. 228.) [1920, June 4, sec. 5. Age limits for appointments under preceding sections.] That officers appointed under M\y of the foregoing provisions shall be not more than thirty-five years of age when so appointed to the line of the Navy, Con- struction Corps, or Supply Corps, and not more than forty-three years of age when so appointed to the Corps of Chaplains, or to the Medical, Dental, or Civil Engineering Corps: Provided, That said age limits shall be increased in the cases of officers who have rendered prior service as paymaster's clerks, or as mates, or as warrant or commissioned officers in the naval service to the extent of all prior naval service: Provided further , That officers originally appointed to the Dental Corps above the said age limits shall be eligible for appointment and promotion under this act irrespective of age. — (41 Stat., 835-836, chap. 228.) [1920, June 4, sec. 5. Statutory requirements for promotion temporarily suspended.] That officers of the line of the Navy who are appointed thereto pursuant to this Act from sources other than the Naval Academy shall not be ineligible for promotion by reason of age as prescribed by the Act of August 29, 1916 (Thirty-ninth Statutes, page 579), until they have rendered ten years' service in the grade of lieutenant commander, six years' service in the grade of commander, or eight years' service in the grade of captain, respectively, upon the completion of which service such officers, if then ineligible for promotion by reason of age, shall be retired in accordance with said Act: And provided further, That until June 30, 1923, promotions to lieutenant (junior grade) and lieutenant may be made without regard to length of service: And provided further. That until June 30, 1923, officers of the permanent Navy who have served satisfactorily during the war with the German Government in a tem- porary grade or rank shall be eligible under the provisions of existing law for selection for promotion or for promotion to the same permanent grade or rank without regard to statutory requirements other than age and professional and physical examination. — (41 Stats., 836, chap. 228.) [1920, June 4, sec. 6. Temporary appointments in lower grades ; precedence.] This provision read as follow^s: "That in making reductions in rank as may be required by this Act, officers holding tem- porary appointments may be given temporary' appointments in lower grades, and officers so appointed shall take precedence from the dates of their original appointments in such lower grades." (41 Stat., 836, chap. 228.) [1920, June 4, sec. 6. Bonus and travel pay on extension of enlistment or transfer to another branch of naval service.] That in case any enlisted man or enrolled man who, since the 11th day of November, 1918, has been or hereafter shall be discharged from any branch or class of the naval service for the purpose of reenlisting in the Navy or Marine Corps or heretofore has extended or here- after shall extend his enlistment therein, he shall be entitled to the payment of the .S60 bonus provided in section 1406 of the Act entitled "An Act to provide revenue, and for other purposes," approved February 24, 1919, and to travel 1551 June 4, 1920. Pt. S. STATUTES AT LARGE. pay as authorized in section 3 of the Act entitled ''An Act permitting any person wlio has served in the United States Army, Navy, or Marine Corps in the present war to retain his imiform and personal equipment and to wear the same under certain conditiojis," approved February 28, 1919: Provided, That only one bonus shall be paid to the same person. — (41 Stat., 836, chap. 228.) The act of February 24, 1919, section 1406 (40 Stat., 1151), was temporary legislation, providing for payment of $(50 bonus to men discharged from the military or naval forces or, in the case of reservists, released from active duty. See note to section 1569, Revised Statutes, under "24. Sixty dollar bonus on discharge." The act of February 28, 1919, section 3 (40 Stat., 1203), reenacted with amendments, section 126 of an act approved June 3, 1916 (39 Stat., 217). See the latter act and note thereto; see also note to section 1569, Revised Statutes, under "20. Mileage and transportation on discharge." Above section construed as temporary. — Section 6 of the act of June 4, 1920, above set forth, was held by the Comptroller of the Treas- ury to apply only to men who were in the Navy or Marine Corps on November 11, 1918, and to be inapplicable to anv enlistment accomplished after that date. (27"Comp. Dec, 32, 39, 305.) [1920, June 4, sec. 7. Term of enlistment; grades and ratings established.] That hereafter enlistments in the Navy and in the Marine Corps may be for terms of two, three, or four years, and all laws now applicable to four-year enlistments shall apply, under such regulations as may be prescribed by the Secretary of the Navy, to enlistments for a shorter period with proportionate benefits upon discharge and reenlistment : Provided, That hereafter the Secretary of the Navy is authorized, in his discretion, to establish such grades and ratings as may be necessary for the proper administration of the enlisted personnel of the Navy and Marine Corps.— (41 Stat., 836, chap. 228.) See notes to sections 1418, 1569, 1573, and 1608, Revised Statutes. [1920, June 4, sec. 8. Unauthorized wearing of uniform.] That section 125 of the Act entitled "An Act for making further and more effectual provisions for the national defense, and for other purposes," approved June 3, 1916, shall hereafter be in full force and effect as originally enacted, notwithstanding any- thing contained in the Act entitled "An Act permitting any person who has served in the United States Army, Navy, or Marine Corps in the present war to retain his uniform and personal equipment and to wear the same under certain conditions," approved February 28, 1918: Provided, That the words ''or the Secretary of the Navy" shall be inserted inmaediately after the words "the Secretary of War" wherever those words appear in section 125 of the Act approved June 3, 1916, hereinbefore referred to. — (41 Stat., 836, chap. 228.) See act of June 3, 1916, section 125 (39 Stat., 216-217), and note thereto. The reference in the above section to the act of "February 28, 1918," was apparently intended to mean the act of February 28, 1919 (40 Stat., 1202-1203). [1920, June 4, sec. 9. Naval Reserve Force, withholding retainer pay for cause ; active service requirements. Fleet Naval Reserve.] That hereafter the Secretary of the Navy may, in his discretion, withhold any part or all of the retainer pay which may be due a member of the Naval Reserve Force where such members fail to perform such duty as may be prescribed by law for the maintenance of the efRciency of the Naval Reserve Force : Provided, That any money so withheld shall be credited to the appropriation for organizing and administering the Naval Reserve Force to be used for any purpose that the Secretary of the Navy may consider proper to increase the efficiency of the Naval Reserve Force: Provided further , That hereafter the minimum amount of active service required for the maintenance of the efficiency of the Fleet Naval Reserve shall be the same as for the Naval Reserve.— (41 Stat., 837, chap. 228.) 1552 Pt. 3. STATUTES AT LARGE. June 5, 1920. See act of August 29, 1916 (39 Stat., 587-593), and note to section 1556, Re\ised Statutes, under "37. Naval Reserve Force"; see also provision in this act (41 Stat., 824) set forth above, as to withholding retainer pay. [1920, June 4, sec. 10. Age limits for promotion temporarily deferred. ] This section read as follows: ' 'That the age limits for promotion by selec- tion, which, under existing law, will become effective on June 30, 1920, are hereby deferred until June 30, 1921, in the cases only of those officers who may request such deferment." (41 Stat., 837, Chap. 228.) It temporarily modified the act of August 29, 1916 (39 Stat., 579). [1920, June 5. Titles of Coast Guard Officers.] Titles of commissioned officers of the Coast Guard are hereby changed as follows: Senior captain to commander, captain to lieutenant commander, first lieutenant to lieutenant, second lieu- tenant to lieutenant junior grade, third lieutenant to ensign, captain of engineers to lieutenant commander (engineering) , first lieutenant of engineers to lieutenant (engineering), second lieutenant of engineers to lieutenant, junior grade (engi- neering), and third lieutenant of engineers to ensign (engineering): Provided, That all laws applicable to the titles hereby abolished in the Coast Guard shall apply to the titles hereby established. — (41 Stat., 879, chap. 235.) See note to section 1492, Revised Statutes. [1920, June 5. Hauling for Government in District of Columbia.] Hereafter the Secretary of the Interior may have sand, gravel, stone, and other material hauled for the municipal government of the District of Columbia and for branches of the Federal service in the District of Columbia, whenever it may be practicable and economical to have such work performed by using trucks of the Government fuel yards not needed at the time for the hauling of fuel. Payment for such work shall be made on the basis of the actual cost to the Government fuel yards.— (41 Stat., 913, chap. 235.) [1920, June 5. Advance deliveries of Government fuel, District of Columbia.] Hereafter the Secretary of the Interior is authorized to deliver, durmg the months of April, May, and June of each year, to all branches of the Federal service and the municipal government in the District of Columbia, such quan- tities of fuel for their use during the following fiscal year as it may be prac- ticable to store at the points of consumption, payment therefor to be made by these branches of the Federal service and municipal government from their applicable appropriations for such fiscal year. — (41 Stat., 913, chap. 235.) See acts of July 1, 1918 (40 Stat., 672-673), and July 11, 1919 (41 Stat., 148). [1920, June 5, sec. 3. Annual report, Government buildings. District of Columbia.] That hereafter it shall be the duty of the head of each department and independent establishment of the Government to submit to Congress annually in the Book of Estimates, a statement giving for each of the Govern- ment-owned buildings in the District of Columbia under their respective juris- diction the following information for the preceding fiscal year: The location and valuation of each building, the purpose or purposes for which used, and the cost of care, maintenance, upkeep, and operation thereof per square foot of floor space. — (41 Stat., 945, chap. 235.) See notes to sections 429-430, Revised Statutes. As to buildings rented in District of Columbia, see acts of July 16, 1892 (27 Stat., 199), May 1, 1913, section 3 (38 Stat., 3), and May 29, 1920, section 7 (41 Stat., 691). 1553 June 5, 1920. Ft. S. STATUTES AT LARGE. [1920, June 6, sec. 7. Typewriters, restriction on sale or exchange.] Here- after no dopartmont or t)ther Government establishment shall dispose of any t^'pewriting machines by sale, exchange, or as part payment for another type- writer, that has been used less than three years. — (41 Stat., 947, chap. 235.) A somewhat different provision on this subject was contained in act of May 29, 1920, section 4 (41 Stat., 689); see also act of March 3, 1921 (41 Stat., 126.5-1266). See act of March 4, 1915, section 5 (38 Stat., 1161). [1920, June 6. Aerial operations, jurisdiction of Army and Navy defined.] That hereafter the Army Air Service shall control all aerial operations from land bases, and Naval Aviation shall have control of all aerial operations attached to a fleet, including shore stations whose maintenance is necessary for operation connected with the fleet, for construction and experimentation and for the training of personnel. — (41 Stat., 954, chap. 240.) See act of August 29, 1916 (39 Stat., 582). [1920, June 6. Transportation of disabled sailors, marines, etc., on fur- lough ; reduced rates.] The Secretary of War and the Secretary of the Navy, under such regulations and restrictions as they may provide, are hereby author- ized to issue to all wounded and otherwise disabled soldiers, sailors, or marines under treatment in any Army, Navy, or other hospital, w^ho are given fur- loughs at any time, a furlough certificate, which certificate shall be signed by the commanding ofiicer at such hospital. This furlough certificate w^hen presented by such furloughed soldier, sailor, or marine to the agent of any railroad or steamship company over whose lines said soldier, sailor, or marine may travel to and from his home during the furlough period shall entitle said soldier, sailor, or marine to purchase a ticket from the point of departure to point of destination and return at the rate of 1 cent per mUe, and on pres- entation of such certificate on which such ticket has been issued the railroad or steamship company issuing such ticket shall be entitled to receive from the Treasury of the United States the difference between the amount paid for such ticket at the rate of 1 cent per mile and the regular scheduled rate for such ticket. The sum of S250,000, or so much thereof as may be necessary, is hereby appropriated, out of any funds in the Treasury not otherwise appropriated, for the purpose of carrying out the provisions of this paragraph. — (41 Stat., 975-976, chap. 240.) [1920, June 5. Sale of subsistence stores, etc., to discharged persons under Public Health treatment.] That hereafter honorably discharged officers and enlisted men of the Army, Navy, or ]\Iarine Corps who are being cared for and are receiving medical treatment from the Public Health Service shall, while undergoing such care and treatment, be permitted to purchase subsistence stores and articles of other authorized supplies, except articles of the uniform, from the Army, Navy^, and Marine Corps at the same price as charged the officers and enlisted men of the Army, Navy, and Marine Corps. — (41 Stat., 976, chap. 240.) See act of March 4, 1913 (37 Stat., 909), and references thereunder. [1920, June 5. Development of merchant marine for service as a naval auxil- iary.] That it is necessary for the national defense and for the proper growth of its foreign and domestic commerce that the United States shall have a mer- 1554 PL 3. STATUTES AT LARGE. June 5, 1920- chant marine of the best equipped and most suitable types of vessels sufficient to carry the greater portion of its commerce and serve as a naval or military auxiliary in time of war or national emergency, ultimately to be owned and op- erated privately by citizens of the United States; and it is hereby declared to be the policy of the United States to do whatever may be necessary to develop and encourage the maintenance of such a merchant marine, and, in so far as may not be inconsistent with the express provisions of this Act, the United States Shipping Board shall, in the disposition of vessels and shipping property as hereinafter provided, in the making of rules and regulations, and in the admin- istration of the shipping laws keep always in view this purpose and object as the primary end to be attained. — (41 Stat., 988, chap. 250.) Seeact of March 3, 1891, section 4 (26 Stat., 831), mail vessels, and section 9 (26 Stat., 832), as to construction of ocean mail vessels as to the taking of such vessels for use by with particular reference to their prompt the United States; see also acts of Sep- conversion into auxiliary cruisers; see also tember 7, 1916, section 10 (39 Stat., 731), section 7 of the same act (26 Stat., 832), as and March 4, 1917 (39 Stat., 1192-1193). to detail of naval officers for duty on ocean [1920, June 5, sec. 17. Transfer of docks, etc., from Shipping Board to Navy Department, etc.] That the board is authorized and directed to take over on January 1, 1921, the possession and control of, and to maintain and develop, all docks, piers, warehouses, wharves and terminal equipment and facilities, including all leasehold easements, rights of way, riparian rights and other rights, estates and interests therein or appurtenant thereto, acquired by the President by or under the Act entitled "An Act making appropriations to supply urgent deficiencies in appropriations for the fiscal year ending June 30, 1918, and prior fiscal years, on account of war expenses, and for other purposes," approved March 28, 1918. The possession and control of such other docks, piers, warehouses, wharves and terminal equipment and facilities or parts thereof, including all leasehold easements, rights of way, riparian rights and other rights, estates or interests therein or appurtenant thereto which were acquired by the War Department or the Navy Department for military or naval purposes during the war emer- gency may be transferred by the President to the board whenever the President deems such transfer to be for the best interests of the United States. The President may at any time he deems it necessary, by order setting out the need therefor and fixing the period of such need, permit or transfer the pos- session and control of any part of the property taken over by or transferred to the board under this section to the War Department or the Navy Department for their needs, and when in the opinion of the President such need therefor ceases the possession and control of such property shall revert to the board. None of such property shall be sold except as may be hereafter provided by law.— (41 Stat., 994, chap. 250.) [1920, June 5. Deficient midshipmen, reexamination and special instruction required.] That until otherwise provided by law no midshipman found defi- cient at the close of the last and succeeding academic terms shall be involun- tarily discontinued at the Naval Academy or in the service unless he shall fail upon reexamination in the subjects in which found deficient at an examination to be held at the beginning of the next and succeeding academic terms, and the Secretary of the Navy shall provide for the special instruction of such mid- 1555 June 5, 1920. PL 3. STATUTES AT LARGE. shipmcn in the subjects in which found deficient during the period between academic terms. — (41 Stat., 1028, chap. 253.) See note to section 1519, Revised Statutes, under "Act of June 5, 1920, construed." [1920. June 5, Annual report of Government publications.] Hereafter the head of each department and independent estabhshment of the Government shall on the first day of each regular session submit in writing a report to the Congress giving the aggregate number of the various publications it has issued iluring the preceding fiscal year giving same in detail, and shall also report the cost of paper used for such publications, cost of printing and the cost of prepara- tion of each publication, and the number of each which has been distributed. — (41 Stat., 1037, chap. 253.) See act of January 12, 1895, section 19 (28 Stat., 603); see also notes to sections 429-430, Revised Statutes. [1920, June 5. Naval officers authorized to accept offices in South America.] That the President of the United States be, and he is hereby, authorized, upon application from the foreign Governments concerned, and whenever in his dis- cretion the public interests require, to detail officers of the United States naval service to assist the Governments of the Republics of South America in naval matters: Provided, That the officers so detailed be, and they are hereby, author- ized to accept offices from the Government to which detailed with such com- pensation and emoluments therefor as may be first approved by the Secretary of the Navy: Provided further, That while so detailed such officers shall receive, in addition to the compensation and emoluments allowed them by such Govern- ments, the pay and allowances of their rank in the United States naval service, and they shall be entitled to the same credit while so detailed for longevity, retirement, and for all other purposes that they would receive if they were serv- ing with the United States naval service. — (41 Stat., 1056, chap. 261.) See joint resolution of October 13, 1914 (38 Stat., 780), and references thereunder. [1920, June 5. Operation of Government radio stations.] That all land, ship, and airship radio stations, and all apparatus therein owned by the United States may be used by it for receiving and transmitting messages relating to Government business, compass reports, and the safety of ships. * * * Sec. 3. That all stations owned and operated by the Government, except as herein otherwise provided, shall be used and operated in accordance with the provisions of the Act of Congress entitled "An Act to regulate radio communica- tion," approved August 13, 1912.— (41 Stat., 1061, chap. 269, Pub. Res. No. 48.) Section 2 of this resolution provided as follows : "That the Secretary of the Navy is hereby authorized, under terms and condi- tions and at rates prescribed by him, which rates shall be just and reasonable, and which, upon complaint, shall be subject to review and revision by the Interstate Commerce Commission, to use all radio stations and apparatus, wherever located, owned by the United States and under the control of the Navy Department — (a) for the reception and transmission of press messages offered by any newspaper pub- lished in the United States, its Territories or possessions, or published by citizens of the United States in foreign countries, or by any press association of the United States, and (b) for the reception and trans- mission of private commercial messages: Provided, That the rates fixed for the reception and transmission of commercial messages, other than press messages, shall not be less than the rates charged by privately owned and operated stations for like messages and service: Provided further, That the right to use such stations for any of the purposes named in tliis section shall terminate and cease as be- 1556 PL 3, STATUTES AT LARGE. Mar. 3, 1921. tween countries or localities or between any locality and privately operated sliips, whenever privately owned and operated stations are capable of meeting the normal communication requirements between such countries or localities or between any locality and privately operated ships, and the Secretary of Commerce shall have notified the Secretary of the Navy thereof, and all rights conferred by this section shall terminate and cease in any event two years from the date this resolution See act of August 13, 1912 (37 Stat., 302-308). [1921, Mar. 1. Naval supply account fund established.] That deficiencies under appropriations for the naval establishment for the fiscal year 1920 and prior years shall be charged to a naval supply account fund, which is hereby established and to which shall be transferred the unexpended balances of annual appropriations for the naval establishment for the fiscal years 1919 and 1920, after two years from the expiration of the fiscal year for which made, and, out of any funds in the Treasury not otherwise appropriated, an amount equal to the value of all stores in the naval supply account on March 31, 1921, prelimi- nary adjustments on account of stores to be made upon the certificate of the Secretary of the Navy that stores to the value certified are on hand; and from and after said date the naval supply account fund shall be charged with the cost of all stores procured for and credited with the value of all issues or sales made from the naval supply account, necessary adjustments being made on account of outstanding contracts or orders. — (41 Stat., 1169, chap. 89.) See act of March 4, 1911 (36 Stat., 1279), and note thereto, as to the naval supply account. [1921, Mar. 1. Naval supply account; prices of material; losses; specific appropriations.] The prices at which material is to be expended from the naval-supply-account shall be fixed by the Paymaster General of the Navy, subject to the approval of the Secretary of the Navy, and materials purchased during the war shall be issued at reduced prices in all cases appropriate, such differences in values and losses to be charged to the respective funds; and hereafter no charges on this account shall be made to naval appropriations. — (41 Stat, 1170, chap. 89.) See Act of March 4, 1911 (36 Stat., 1279), and note thereto. [1921, Mar. 3. Typewriters and computing machines, issued for exchange; repairs in District of Columbia.] That typewriters and computing machines transferred to the General Supply Committee as surplus, where such machines have become unfit for fm-ther use, may, in the discretion of the Secretary of the Treasm-y, be issued to other Government departments and establishments at exchange prices quoted in the current general schedule of supphes or sold commercially provided the price obtained is in excess of the exchange prices. — (41 Stat., 1265-1266, chap. 124.) Repairs to typewriting machines (except bookkeeping and billing ma- chines) in the Government service in the District of Columbia may be made at cost by the General Supply Committee, payment therefor to be effected by transfer and counter warrant, charging the proper appropriation and crediting the appropriation ''General Supply Committee, Transfer of Office IVIaterial, Supplies, and Equipment."— (41 Stat., 1266, chap. 124.) See Acts of June 5,1 920, section 7 (41 Stat., 947), and March 4, 1915,section 5 (38 Stat., 1161). [1921, Mar. 3. War with Germany and Austria Hungary, date of termina- tion for certain purposes.] That in the interpretation of any provision relating to the duration or date of the termination of the present war or of the present 1557 Mar. 3, 1921. PL .?. STATUTES AT LARGE. or existing emergency, meaning thereby the war between the Imperial German Government and the Imperial and Royal Austro-Himgarian Government and the Government and people of the United States, in any Acts of Congress, joint resolutions, or proclamations of the President containing provisions contingent upon the duration or the date of the termination of such war or of such present or existing emergency, the date when this resolution becomes effective shall be construed and treated as the date of the termination of the war or of the present or existing emergency, notwithstanding any provision in any Act of Congress or joint resolution providing any other mode of deter- mining the date of such termination. And any Act of Congress, or any provi- sion of any such Act, that by its terms is in force only during the existence of a state of war, or during such state of war and a limited period of time thereafter, shaU be construed and administered as if such war between the Governments and people aforesaid terminated on the date when this resolution becomes effective, any provision of such law to the contrary notwithstanding; excepting, however, from the operation and effect of this resolution the following Acts and proclamations, to wit: Title 2 of the Act entitled "The Food Control and District of Columbia Rents Act," approved October 22, 1919 (Forty-first Statutes, page 297), the Act known as the Trading with the Enemy Act, ap- proved October 6, 1917 (Fortieth Statutes, page 411), and all amendments thereto, and the First, Second, Third, and Fourth Liberty Bond Acts, the Supplement to the Second Liberty Bond Act, and the Victory Liberty Loan Act; titles 1 and 3 of the War Finance Corporation Act (Fortieth Statutes, page 506) as amended by the Act approved March 3, 1919 (Fortieth Statutes, page 1313), and Public Resolution Numbered 55, Sixty-sixth Congress, entitled ''Joint resolution directing the War Finance Corporation to take certain action for the relief of the present depression in the agricultural sections of the country, and for other purposes," passed January 4, 1921; also the proclamations issued under the authority conferred by the Acts herein excepted from the effect and operation of this resolution: Provided, however, That nothing herein contained shall be construed as effective to terminate the militarv status of any person now in desertion from the military or naval service of the LTnited States, nor to terminate the liability to prosecution and punishment under the selective service law, approved May 18, 1917 (Fortieth Statutes, page 76), of any person who failed to comply with the provisions of said Act, or of Acts amendatory thereof: Provided further. That the Act entitled ''An Act to amend section 3, title 1, of the Act entitled 'An Act to punish acts of inter- ference with foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,' approved June 15, 1917 (Fortieth Statutes, page 217), and for other purposes," approved May 16, 1918 (Fortieth Statutes, page 553), be, and the same is hereby, repealed, and that said section 3 of said Act approved June 15, 1917, is hereby revived and restored with the same force and effect as originally enacted. Nothing herein contained shall be held to exempt from prosecution or to relieve from punishment any offense heretofore committed in violation of any Act hereby repealed or which may be committed while it remains in force as herein provided.— (41 Stat., 1359-1360, chap. 136, Pub. Res. No. 64.) 1558 Pi. 3. STj\TUTES at large. Mar. 4, 1921. terms to "time of peace." (32 Op. Atty. Gen., 505.) By said resolution Congress meant to declare a condition of peace to exist as to the laws of and governing the United States; hence all laws and regulations depending for their force upon a state of war or emergency thereby ceased to be of further force. (32 Op. Atty. Gen., 505, listing certain acts relating to the Navy which were affected by the above resolution.) Navy statutes affected by resol'.il on terminating war-time legfislation. — l^his resolution affects statutory pro\isions relating to the Navy wliich in general terms apply to any emergency or national emergency and which included, without specific reference thereto, the emergency incident to the war with Germany. (32 Op. Atty. Gen., 505.) Said resolution likewise affects statutory provisions relating to the NaAy which relate in [1921, Mar. 4. Transfer of lands, etc., to the Public Health Service.] In carrying out the purposes herein authorized the President is authorized and empowered, in his discretion, to assign for use of the Public Health Service, under the jurisdiction of the Secretary of the Treasury, such lands or buildings now owned or leased by the United States, not including property under the jurisdiction of the National Home for Disabled Volunteer Soldiers, which, in his judgment, can be used more efficiently for the care of patients of the Bureau of War Risk Insurance * * *.— (41 Stat., 1365, chap. 156.) See act of March 3, 1919, section 3 (40 Stat., 1303.) [1921, Mar. 4. Arlington Memorial Amphitheater, memorials and entomb- ments in.] That a commission is hereby created, to be composed of tlie Secre- tary of War and the Secretary of the Navy, which shall submit annually to the President, who shall transmit the same to Congress by the first IVIonday in December, recommendations as to what, if any, inscriptions, tablets, busts, or other memorials shall be erected, and what, if any, bodies of deceased members of the Army, Navy, and Marine Corps shall be entombed during the next ensu- ing year within the Arlington Memorial Amphitheater, in the .Arlington National Cemetery, Virginia: Provided, That no memorial shall be placed and no body shall be interred in the grounds about the Arlington Memorial Amphitheater within a distance of two hundred and fifty feet from the said memorial. Sec. 2. That the Secretary of War shall be the chairman of the said com- mission and the depot quartermaster of the Army in Washington shall be its executive and disbursing officer. Sec. 3. That no inscription, tablet, bust, or other memorial shall be erected nor shall any body be entombed within the Arlington Memorial Amphitheater unless specifically authorized in each case by Act of the Congress. Sec. 4. That no inscription, tablet, bust, or other memorial as herein pro- vided for shall be erected to commemorate any person who shall not have rendered conspicuously distinguished service in the United States Army, Navy, or Marine Corps, nor shall the body of any such person be entombed in the Arlington Memorial Amphitheater; nor shall any such memorial be erected or any body be entombed therein within ten years after the date of the death of the person so to be commemorated, except as heretofore or hereafter authorized by Congress. Sec. 5. That the character, design, and location of any such inscriptions, tablets, busts, or other memorials when authorized as herein provided shall be subject to the approval of the commission herein created, which shall in each case obtain the advice of the Commission of Fine Arts. — (41 Stat., 1440, chap. 169.) See section 4878, Revised Statutes, as to of March 3, 1909 (35 Stat., 773), as to burials in national cemeteries; and see act memorials in Naval Academy chapel. 1559 Mar. 4, 1921. PL S. STATUTES 4 T LARGE. The Conunission of Fine Arts was created by act of May 17, 11)10 (3G Stat., 371), which read as follows: •'That a jicnnancnt Conimiasion of Fine Arts is hereby created to be composed of seven well- qualified judges of the fine arts, who shall be aji])ointed by the President, and shall serve for a i)eriod of four years each, and until their successors are appointed and qualified. The President shall have authority to lill all va- cancies. It shall be the duty of such com- mission to ad\i8c upon the location of statues, fountains, and monuments in the ])ublic squares, streets, and parks of the District of Columbia, and upon the selection of models for statues, fountains, and monuments erected under the authority of the United States and upon the selection of artists for the execution of the same. It shall be the duty of the of- ficers charged by law to determine such ques- tions in each case to call for such advice. The foregoing provisions of this act shall not apply to the Capitol building of the United States and the building of the Library of Con- gress. The commission shall also advise gen- erally upon questions of art when required to do so by the President, or by any committee of eitl ii- House of Congress. Said commission shal* have a secretary and such other assistance as the commission may authorize, and the members of the commission shall each be paid actual expenses in going to and returning from Washington to attend the meetings of said com- mission and while attending the same. "Sec. 2. That to meet the expenses made necessary by this Act an expenditure of not exceeding ten thousand dollars a year is hereby authorized." By Executive Order of July 28, 1921 (No. 3524), it was provided as follows: "It is hereby ordered that essential matters relating to the design of medals, insignia and coins, produced by the executive departments, also the designs of statues, fountains and monu- ments, and all important plans for parks and all public buildings, constructed by executive departments or the District of Columbia, which in any essential way affect the appearance of the city of Washington, or the District of Columbia, shall be submitted to the Com- mission of Fine Arts for advice as to the merits of such designs before the executive officer having charge of the same shall approve there- of." 1500 INDEX. [See also Analytical Index to the Constitution, pp. 143-181., ABANDONED: Applications for patents, 1105, 1494, 1501. Office; acquiescence in illegal dismissal, 826, 989. ABBREVIATION: Signature of public officer, 351. ABETTING: See Accessories; Articles for the Government of the Navy; Crimes. Combination against commanding officer, Navy, 984. Making or signing of a false muster, 985. ABSENCE: See Absence without leave; Leave of absence. Accused not present at trial, 126, 1030. Candidate for promotion; examining board's proceed- ings illegal, 723, 728. Chiefsofbm«aus,213, 214, 466, 1222, 1224, 1261, 1280, 1284, 1418. Disbursing clerks; substitute, 1315, 1316. From command; power of officer to convene courts- martial during, 1015. command without leave, 988. ship; pay, 882, 8.S3. United States; statute of limitations, 1060. Heads of departments, 194, 212-217, 422. Judge Advocate General of the Navy, 1418. Members of general court-martial, 1029-1033. Misconduct causing; officers and enhsted men, Navy and Marine Corps, 825, 1436. Naval officers imprisoned by civil authorities; dropped from rolls, 1503. Pay of officers, Marine Corps, during, 941. Navy, during, 823-825. Secretary of the Navy, 212-217; 1401. Statute of limitations; effect on, 1057, 1058, 1060, 1062. Temporary; quarters and commutation, 701. Vacancy not created by, 473. Witnesses; additional charges tried on return of, 1025. admission as to what they would testify, 132, 1055. procured by accused, 132. ABSENCE WITHOUT LEAl^E: Forfeiture of pay; any person in service of United States, 1297. enlisted men, 869-871. From station or duty; punishment, 985. Leaving station before being regularly relieved, pun- ishment. Navy, 979. Member of court-martial; penalty dismissal, 1031. Officer; absenting himself from command without leave, 988. dropped from rolls for, 1011, 1012, 1503. whose resignation has not been accepted, 989 Pay, naval officer, 825. Naval Reser^-e Force, 814. Period of arrest by civil authorities, 589. not credited as a period of service, 588. ABSTRACT OF TITLE: Exjjcnse of securing, 294. ACADEMIC BOARD: Naval Academy, 751, 753, 754. ACADEMIES: See Military Academy; Naval Academy. Details of naval officers to educational institutions, 435. ACCEPTANCE: Appointment, 96, 100, 207. implied resignation of office already held, .529. naval officer; date pay commences, 829. in diplomatic or consular service, 579. Bonds; date effective, 211. Foreign medals, decorations, and presents, 75, 76, 1516, 1517. offices by naval officers, 75, 1416, 1502, 1556. Pardon, 122. Presents from official inferiors, 1073. Promotion, 97, 652, 654. Resignation, 583, 747, 989. Vessels under construction; ownership prior to, 773. ACCESSORIES: Pimishment of, 1354. ACCOUNTING OFFICERS: See Accounts; Claims; Mistake of fact; Mistake of law . -Accounts of navy disbursing officers rendered direct to, 1097. Administrative departments delaying transmission of accoimts to, 1226. examination omitted; procedure in auditing, 1226. Advance decisions, 1225. Allowance to owner of lost check, 274. to retired enlisted men who resigned to reenlist in higher grade, 1514. Appointment of inspector, weigher, and measurer of fuel; notification to, 1110. without consent of Senate; notification to, 1072. Approval of accounts by heads of departments, 242- 244, 277. Attorney General's jurisdiction with relation to, 311- 320. Attorneys' fees not to be deducted in naval cases, 1272. Auditor for the Navy Department; duties of, 1224. Auditors, general pro\'isions relating to 265-274. Certificates of balances; copies sent Secretary of the Navy, 1224. Checkages of pay; jurisdiction, 233. Claims allowed; report to Congress, 1193. Commissions or inquiries, accounts not to be allowed without special appropriation, 1105. Comptroller, duties of, 263, 264. Conclusive effect of action by, 246-248. Congress not bound by action of, 247. Contracts filed in offices of, 1118. for fuel; credit not allowed without certificate, 1110, 1111. settlements by departments subject to revision, nil. Court of Claims' jurisdiction, where account not acted on by, 1362. 1561 INDEX. ACCOUNTING OFFICERS— Continued. Courts; jurisdiction with relation to, 23.5, 247. Deccsasod personnel. Navy and Marine Corps; settle- ment of accounts, 1305, 1306. Decisions of auditors re\-ised by Comptroller, 1225. of Comptroller; applications for, 1225. policy of Navy Department as to requesting, 239. Decisions relating to jwwers and jurisdiction of, etc., 229-257. Deposit of public money required by; failure of dis- bursing officer to make, 1330. Disbursements by Treasurer of the United States, 275. Disbursing officers may obtain advance decision from, 1225. Effect of action; binding on executive branch of gov- ernment, 225. Enlisted men on vessels sunk or destroyed; payments to, 264. Equitable claims, jurisdiction 235. Equity and justice in settling accounts, enlisted men on lost vessels, 268. Evidence required by, 244. Form of keeping and rendering accounts and making returns, 259, 1224. General account of ad\-ances, adjustment of liabilities by, 1184. General provisions relating to, 263-274, 1224-1227. Heads of departments; jurisdiction with relation to, 236-244. may obtain advance decision from, 1225. Information; books, papers, etc., open to inspection of, 229. refused by Navy Department, 238, 239. Jurisdiction: can not require pajTnent to be made, 240. cause of naval officer's incapacity, 605. checkages of pay, 233, 234. claims for lost or damaged property, naval per- sonnel, 1492-1494. in general, 231, 232. limitations upon, 232. Navy regulation held invalid by, 239, 241, 273, 838,839. payments of death gratuity in Navy, 233. promotion of civil employee, 242. property accounts, 234, 1223. Secretary of the Na^T with relation to, 198, 236- 240; 266, 268, 272, 273, 566, 605, 828, 829, 838, 839, 903, 1315, 1514, 1527, 1528. ships' stores profits, 1359. Mandamus proceedings against, 233, 234, 256, 257. Na\^ accounts; auditing of, 266. disbursements, by order of superior officer, allowed, 266. regulation binding on, 198, 786, 787. Notified of all appointments made by President with- out consent of Senate, 1072. Oaths administered to witnesses by auditors, 274. Orders of Secretary of the Navy; officer disobeying can not be relieved of responsibility, 239, 240. Pajrment for effects lost on sunk or captured vessel, 269. Pay, miscellaneous, credited with interest, premiums, and exchange, 1222. Property accounts; jurisdiction, 234, 1223. Recess appointments; notification to, 1072. Regulations, Havy, binding on, 241, 273. decision as to vaUdity of, not binding, 239. Reopening of accounts; decisions relating to, 248-256. Requisitions for advances of money, 1104, 1225, 1226. Report to Congress of delinquent disbursing officers, 1226. ACCOUNTING OFFICERS— Continued. Revision of auditor's settlements by Comptroller, 1224, 1225. Secretary of the Navy- Determination binding on; responsibility for loss or deficiency, 1527, 1528. Jurisdiction with relation to, 198, 236-240, 266, 268, 272, 273, 566, 605, 828, 829, 838, 839, 903, 1315, 1514, 1527, 152H. To determine when public quarters not available, 1514. To direct, in fLxing date vessels were lost, 268. settlements by, 266. Secretary of War; jurisdiction with relation to, 240-242. Set off; jurisdiction as to, 244-246. Settlements; effect of accepting payment under, 1225. of auditors conclusive unless re\Tsed by Comj)- troller, 1224. Ships' stores profits to be accounted for to Bureau of SuppUes and Accounts, 1359. Status of, 230. Suit against delinquent officer and sureties, 1072, 1097. on bonds; statute of limitations, 1199. Suspension of items in accounts for explanation or e\'idence, 1225. Temporary appointments, notified of, 1072. UnUquidated claims, jurisdiction, 234. Vessels lost or captured; credits to paymaster, 266. Warrants in settlement of accounts, 276. ACCOUNTS: See Accounting officers; Claims; Mistake of fact; Mis- take of law; Naval supply account. Accepting payment under settlements by accounting officers: effect of, 1225. Administrative — Departments delaying transmission to accounting officers, 1226. Examination omitted: auditing of, 1226. regulations governing, 1227. Appropriation for obtaining information from abroad and at home, 1417. Approval by head of department; effect of, 242, 243. by Secretary of the Navy, 272, 1179, 1189. Armor plants; cost of product; itemized, to be kept, 1419. Balances- Certified by the auditors conclusive, unless re- vised by Comptroller, 1224, 1225. copy of certificate sent to Secretary of the Navy, 1224. Contract purchases: consular certificate required con- cerning foreign supplies, 1114. Contractors and agents to render for settlement to proper department, 1111. Deceased naval personnel; settlement of, 1305, 1306. Deficiency; Secretary of the Na\'y may relieve officers from responsibility, 1527, 1528. suit on bond; statute of limitations, 1199. Delinquency in rendering; money requisitions dis- approved because of, 1226. of officers reported to Congress, 1226. Disbursements by order of superior officer in Navy, 266. Disbursing officers failing to render, as required, 1226, 1330. unchanged for three years, 279. Enlisted men; final settlement of; duty of command- ing officer, 995. missing vessels, 268. must accompany when sent from ship or trans- ferred to other vessels, 995. 1562 INDEX. ACCOUNTS— Continued. Enlisted men sent from ship; commanding offlcer and paymaster to sign, 995. Kvidence required by accounting officers, 244. Examination of, by administrative bureau, 1097. Falsification of, punishment, 1170, 1368. Fiscal year, 257, 259. Form of, 259, 1097, 1098, 1224. cost of work under naval appropriations, 1365, 1366. Navy Department expenditures, 1 102, 1 103, General account of advances authorized for Navy, 1183. General provisions relating to, 1224-1227. Inspection of, by general inspector of Supply Corps, 1304. Itemized required, 231, 244. London fiscal agents; receipts for interest, 1222. Miscellaneous receipts, 1095. Naval Supply Account; to govern purchase and issue of stores, etc., 1366, 1367. value of stores in, transferred to naval supply account fimd, 1557. Navy- Auditing of, 265, 1224. Department; custody of chiefs of bureaus, 361. expenditures; form of, 1102, 1103. Disbursing officers, rendered direct to accounting officers, 1097. Oaths administered to witnesses by auditors, 274. who may administer to, 1386. Officers sent from ship to be furnished with, 995. Overhead charges distributed between naval appro- priations, 1398. Payment by Treasurer of United States, 275. Premium on sale of public securities, 1100. Property; audited by Paymaster General of Navy; certificate to accounting officers, 1223. Biu'eau of Supplies and Accounts to keep, 1203. charging lost property to responsible officer, 788. jurisdiction of accounting officers, 234. storekeeper at Naval Academy to render, 1304. Quarterly rendition of, 1215. Receipts from post laundries. Marine Corps, 1531. Reopening of; decisions relating to, 24&-256. "Settle" defined, 233. Settlement of claims and demands, 229-257. Siiips' stores profits; audited by Bureau of Supplies and Accounts, 1359. Suspension of items by accounting officers for evidence or explanation, 1225. Time for rendering, 1097, 1215, 1225, 1226. Travel claims; approval by Secretary of the Navy, 237, 238. Traveling expense; Secretary of the Navy to determine distances, etc., 1315. Vessels lost or captured, 266. sunk or destroyed; payments to enlisted men, 264. ACCUSED: See Courts-martial; Jeopardy; Prisoners; Sentence. Additional charges against; restriction on trying, 1025. Arraignment; waiver of, 126. Arrest, 117, 1025, 1026. entitled to charges at time of, 131, 1025. BiU of rights for protection of, 116. Challenge, right of, before court-martial, 131. Change of status; does not divest jurisdiction, 403. Charges against; right to be informed of, 129, 131. to be furnished at time of arrest, 131, 1025. Compelling exhibition of his person, not unlawful, 123. Confession by, 123. ACCUSED— Continued. Consent does not confer jurisdiction on court, 125, 977, 1033. Counsel, entitled to assistance of, 129, 133. public officers not to accept fees, 1333. Defects in charges and specifications waived by, 1045. Defense; allowed reasonable time to make, 1025. Description of, in charges, 1028. Due process of law, protection of, 123. Evidence received in absence of, 1030. Health; summary court-martial punishment depend- ent upon, 1009. Impartial trial, right to, 129, 131. Insanity as defense, 1030, 1031. Judge Advocate acting as counsel for, 133. must furnish opinions to, 133. New trial requested by, 121. Offlcer; commutation of quarters, 700. confined to certain limits, 1029. Presence of, at trial; proceedings in absence, 68, 126-128. Public trial, right to, 129, 130, 1030. Retired officer; mileage for travel to court-martial for trial, 658. Right to be confronted with witnesses in court-martial cases, 68. Self-crtmination, protection, 121, 403. Speedy trial, right of, 129, 130. Trial after expiration of enlistment, 1057, 1061. Waiver of rights and privileges, 121, 132, 1026, 1045, 1057, 1058, 1062. Witnesses — Absence procured by accused, 132. Right to confront , 129, 132. process for obtaining, 129, 132, 133. Unable to hear, 126. ACKNOWLEDGMENTS : Bonds, 483. False, by officer authorized to administer oaths, etc., 1323. Officers authorized to take, 1072, 1073. Powers of attorney; claims against United States , 1093. ACQUIESCENCE: Illegal dismissal; effect of, 826. ACQUITTAL: See Jeopardy. Disapproval of court-martial sentence equivalent to, 988. Effect of, 988. Plea of former acquittal, 119. ACTING OFFICERS: Assistant surgeons, 527-530, 675, 802, 1184, 1261. Chaplains, 802, 1396. Chiefs of bureaus, 213, 214, 466, 1222, 1224, 1261, 1280, 1284, 1418. Commanding officers, punishments inflicted by, 1005. Disbursing clerks, 211, 1315, 1316. Ensigns, 799, 1435, 1436, 1438, 1439. Governors, Guam and Samoa: certificates as to ac- knowledgments, 1291, 1292. Heads of departments, 194, 212-217, 422. Judge Advocate General, Navy, 1418. Machinists, 1269. Master at arms; refusing to receive prisoners or suffer- ing their escape, 985. Midshipmen, 739. Pay clerks, 1406, 1407. PajTnasters, 472, 473, 839. Rear admirals, 577, 665. Second lieutenants, 1438, 1439. Secretary of the Navy, 212-217; 1401. 54641°— 22- -99 1563 INDEX. ACTING OFFICERS— Continued. Status of, 525. Warrant officers, 525, 794, 803. .\CTIVE OUTY: See Naval Jieserve Force; Pay of Naval EstablMment; Retired eiilisUd men; Retired officers. Naval officer interned by neutral nation is in status of, 892. Naval Reserve Force; confirmation and maiutenanee ofefficiency, 1444, 1445, 1449, 1452, 1453, 1454, 1509. during war or emergency, 1443, 1447, 1452. enlisted ratings, to supply deficiencies in Navy, 1548, 1549. maintenance of efficiency, Naval Reserve, 1509. officers, in aviation and auxiliary ser\'lce, 1549. pay; longevity; computation ofservice, 1511. released from, by Secretary of the Navy, 1510. released from; court-martial jurisdiction over, 976. restrictions on character of, on shore, 1528. subject to laws and regulations of the Navy; en- rolled members, 1511. time of peace, 1510. Retired- Enlisted men, 1405, 1406, 1451, 1514, 1546, 1547. Officers and enlisted men; death gratuity law applicable to, 1546, 1547. Officers; as members of court-martial 1018. authorized, 656, 659, 660, 1380, 1512. Marine Corps, 966-968. pay and allowances, 913-915, 1380, 1381, 1437. prohibited except in time of war, 656, 659, 660. promotion; pay, 1512, 1513. Warrant or commissioned warrant officers; pay, etc., 1503, 1504. ACTI\T; LIST: Retired officers — Not eligible for office limited toactivelist, 643, 658. On active duty; not officers of, 657. practically restored to, 658. Restoration to, 660, 661. Withdrawn from line of promotion on, 654, 655. ACTUAL EXPENSES: See Travel. Travel under orders, naval officers, 842, 843. Witnesses in Government ser\'ice allowed, 413. ADDING MACHINES: Exchange of, in part payment for new ones, 1409, 1410. ADDITIONAL CHARGES: Restriction on preferring against accused before court- martial, 1025. ADDITIONAL NUMBER OFFICERS: Advanced for conduct in battle or heroism, 736, 1289- war service, 1275, 1276. Engineer officers, 1366, 1432. Excluded from computations to determine number in any grade or rank, line or staff, 1429. Grade of rear admiral, 736. Marine Corps, 1289, 1458. promoted to brigadier general, held to fill a va cancy, 1459. status of major general commandant, 929, 1392. Navy, 451, 452. Naval Flj-ing Corps; officers of, 1437. Number of vacancies furnished selection boards should not include, 1431. Promotion of, 1275, 1276, 1429, 1430, 1432. Special act authorizing appointment of, 532. Staff officers permanently commissioned with rank of rear admiral, 1429. Vacancies caused by, not filled, 1275, 1276. ADEQUATE PUNISHMENT: Courts-martial required to adjudge, 1034. .\D INTERIM: See Recess appointments. ADJUTANT AND INSPECTOR: Counted as colonel in computations, 1460. Oaths administered by, 1240. Rank, pay, and allowances, 929, 1460. ADMINISTRATION : Changes in; decisions binding on successors, 348, 349. ADMIRAL: Aid to does not rank with aid to general in the Army, 663. Allowances same as general, 1512. Chief of Naval Operations to have rank and title of, 1418. Clerks to, at sea; civilians not allowed, 1182. Fleet officers to have rank of, 1481. Grade and rank of, 448. Historical note relating to Admiral of the Navy, 447, 448. Pay, 791, 797, 1301, 1481. Ranks with general, 663. Secretary to, 455, 527, 794, 805, 1182. ADMIRALTY: Proceedings in foreign coimtry; counsel for naval officer, 224. ADMIRALTY AND MARITIME JURISDICTION: Crimes committed within, 1348-1351. Judicial power with relation to, 105. ADMISSIONS: As to what absent witness would testify, 132, 1055. ADULTERY: Definition and punishment, 1354. •ADVANCEMENT: See Promotion. Commission not necessary for advancement in rank, 102. to be issued retired officers advanced in rank, 1368. Consent of Senate required for advancement in rank, 734. Dental officers, considered to have gained length of service, 1421. Effect of; precedence, 691. Marine officers; conduct in battle or extraordinary heroism, 933. Naval officers; conduct in battle or extraordinary hero- ism, 453, 454, 734-736, 1275, 1276. Officers, Navy and Marine Corps; to be additional numbers, 1289. Precedence of staff officers who have gained numbers, 1429. Rank of staff officers; examination, 1481. 1482. above lieutenant commander, 1513. up to lieutenant commander, 1426. Retii'ed officers; commissions issued to, 1368. jurisdiction of accoimting officers, 238. when effective, 638-640. ADVANCES: General account of advances authorized for Navy, 1183. Mileage books, commutation tickets, etc., paid for in advance of travel, 1282. Partial payments to contractors as work progresses, 1369. Payment for newspapers and periodicals, 1401. Pay of naval establishment; persons on distant sta- tions, 838, 1472. Public money, restricted, 1099, 1100. Subscriptions to periodicals, 1408, 1409. Witness fees and mileage, naval courts, 1022, 1310. 1564 INDEX. ADVERTISING: Agency may be employed in advertising for recruits, 1382, 1515. Appropriations not available for influencing legisla- tion, 1527. Bids for steam boilers secured without, 1182, 1183. Bunting may be purchased in open market, 1115. Contracts; copies of, to be filed in returns office. Interior Department, 1118, 1119. foreign supplies, 1114. gun steel and armor. Navy, 1223. naval supplies excepted, 1113, 1114. newspapers in District of Columbia, 1123. requirements relating to, 1109, 1111. Envelopes for Government not to contain, 1239, 1240, 1291. Estimates and appropriations for. Navy, 1103. Newspapers; District of Columbia, 1123, 1187. rates paid for, 1184. sale of naval vessels, 1192. written authority required for, 1124. Persons, firms, or corporations practising before depart- ments, 1411. Rates paid for, 1184. District of Columbia, 1187. Recruits; employment of advertising agencies, 1382, 1515. Sale of— condemned naval supplies, 1204. naval material, 1190. vessels, 1192. useless papers; executive departments, 1202, 1203. naval vessels, 1381. navy yards and stations, 1401. Tobacco for Navy purchased after, 1250. AD^^CE: Legal; Attorney General to provide for Navy Depart- ment, 321. AD^^SORY BOARD: To assist appointing power, 95. AERONAUTICS: See Aviation; Flying Corps; Pay of Naval Establish- ment. Advisory committee for, 1402. AFFIDAVITS: See Acknowledgments; Oaths. Contract returns for flUng in returns office, 1119. Homestead laws; before whom executed, 1083. Not admissible in proceedings before court of inquiry, 1056. AFFIRMATION: Satisfies requirement as to oath, 185. AGE: Appointments; above retiring age, 592. acting ensigns, 1435. assistant paymasters, 470, 1407. surgeons, 462, 463, 1427. candidates for; decisions relating to, 463, 464. chaplains, 502. dental corps, 1422. ensigns, from warrant officers, 1277. machinists, 512, 1268, 1269. Marine Corps, 1270, 1461. midshipmen, 750, 751, 1472, 1473, 1507. warrant officers and mates, 512. Enlistments, Navy, 540, 551, 1402, 1403. Naval Reserve Force; disenroUment at 64 years, 1510. enrollment in Naval Reserv'c, 1.509. Promotion by selection, 1434. temporarily suspended in certain cases, 1551. AGE— Continued. Retirement — chiefs of bureaus, 672, 673. civil employees, 1536-1543. Marine Corps, 964. naval officers, 64 years, 589, 1435. iaeUgible for selection, 1434, 1551. staff officers, rank, 685. Selection for promotion; requirement not appUcable to staff officers, 1513. Transfer to permanent grades from temporary or reserve grades, 1551. .4^GENTS: Former Government employees not to act as, against United States, 224. London fiscal; account of Navy Department with, 1222. AGGRAVATING CIRCUMSTANCES: Officer sued for illegal act, 56. AGREEMENTS: Illegal; to defraud United States, 990. AID: Acting rear admiral not entitled to, 577. Admiral's aid does not rank with aid to general, 663. CivUian experts; restrictions on emplojTnent from naval appropriations, 1281. Constructipn officer can not be detailed as, 508, 779. Line officer detailed as, 669. Pay, 815-817, 941, 1303. Rank and precedence of, 669. Regulations governing; vaUdity, 785. Secretary of the Navy's, can not super\-ise chiefs of bureaus, 360. Staff officers not required to communicate with com- manding officer through, 670. Status and pay, 670. AIRCRAFT: See Aviation; Flying Corps; Pay of Xaval Establish- ment. ALASKA: Aliens fishing in waters of: seizures and arrests by naval officers, 1289. Census taken of, 1525. Civil employees: sale of stores to, 1313, 1314. Coal: use of lands for Navy, etc., 1400. mining in, for Navy, 1547, 1548. preference right to purchase for Army and Navy, 1307. Naval officers detailed to, 1393. Railroads: transportationof coal: employment of naval officers, etc., 1393, 1394. Shore duty in: additional pay allowed, 1275. ALCOHOLIC LIQUORS: .\bsence from duty caused by; naval personnel, 825, 1436. Distilled spirits on naval vessels; restrictions. 089. Midshipmen to be instructed as to nature and effects of, 1194, 119.5. Prohibition of, near military camps, and to persons in uniform, etc., 1477, 1478. ALIENS: See Citizenship; Naturalization. Enlistment of. in Navy, .5.54. Midshipmen, eligibility for appointment, 571. Natives of insular possessions are not, 113. Naturalization of. 36, 114, 137-140, 567, 568, 1077, 1078, 1443, 1505-1507. ALLEGIANCE: Oath, Naval Reserve Force, 1444. officers and men of Naw, 1271. 1565 INDEX. ALLEGIANCE-Continued. Oath, persons prosecuting claims against United States. 1093. ALLIES: Failing to assist vessels of, in battle; punishment, Navy, 9*1. ALLOTMENTS: Contintrent and general approi)riations to be appor- tioned to avoid deficiencies, 1104, 1105. Pay; insane ix>rsons. naval .service, 7.S9. men missing in action: continuance of, 1520, 1521. naval establishment, S25, S20, 1249, 1407, 1498. Secretary of the Na^•y can not increase, 789. ALLOWANCES: See Commutation; Heat and Light; Medicines; Medical attendance; Mileage; Naval Reserve Force; Quarters; Rations; Subsistence; Transportation; Travel. Additional, for extra services, restricted, 10C6-1071. Admirals, 1512. Artificiallimbs,1181. A\iation duty; not to be increased for, 1513. Chaplains, 1301-1303, 1396. Chief of Naval Operations, 1512. Chiefs of bureaus, 1512. subsequently retired, 1303. Clothing outfit on enlistment, 876, 877, 1203, 1403. Commissioned warrant officers, 803-805, 1267, 1429, 1430. Definition, 440, 827, 828, 953, 1496. Enlisted men — Discharged: home on receiving ship ]»nding reenlistment, 1201, 1202. Effects lost on vessels; reimbursement, 1106. Hospital Corps, 1420. Medal of honor gratuity, 1275. Na\'y • compilation of orders fixing pay and allow- ances, 850-863. Forage, not allowed naval officers, 1267. Funeral expenses, 905, 906, 1498. Gunnery sergeants, Marine Corps, 1383. Homesteads: general provisions relating to, 1083-1087. Judge Advocate General, 1512. Maintenance, attaches, 828. Marine Band, 952, 1463, 1464. Marine Corps, 936-954, 1435, 1460. Medical attendance not pay, but an aUowanee, 440. Naval officers, 827-829, 1267, 1301, 1435, 1437. prisoners, 1310, 1311. Nurse Corps, female, 807, 808, 1303, 1304. Pension to disabled enlisted men of specified service, 1154, 1155. Pharmacists and chief pharmacists, 1420. Promoted officer; increase commences from date stated in commission, 1390. Rations or commutation therefor, an allowance and not pay, 9.53. Rear admirals, upper and lower half, line and staff, 1429. Retired enlisted men, Navy and Marine Corps, 1299. officers on active duty, 1437, 1512, 1513. Sale of fuel to officers, 943, 9.51. Salvage,775, 1145, 1147. Secretaries to admiral and vice admiral, 455. Servants; mess attendants; naval officers making use of, 829. Special, to naval personnel under unusual conditions, 696, 828, 1545. Travel; distances determined by Secretary of the Navy, 1315. Trusses furnished enlisted men, 1185. Vice admirals, 1512. ALLOWANCES— Continued. Waiver of, 877. Warrant officers, 803-805, 1207, 1420. ALMANAC: See Nautical Almanac. ALTER.-VTION: Bonds, 4&1. ALTERNATES: Nomination of, for Naval Academy, 748, 1294. AMBULANCE: Service; Hospital Corps to perform, 1420. Ships; Nurse Corps, female, eligible for duty on, 1303, 1304. AMENDMENTS: Charges and specifications, 1028. AMERICAN EPHEMERIS AND NAUTICAL AL- MANAC: See Ephemeris and Nautical Almanac; Nautical Alma- nac; Printing and binding. AMMUNITION: Navy; unlawfully selling, stealing, etc., 990, 1325. Sale of, 1516. War Department; transfer to other departments, 1527. Wasting or permitting waste; punishment, Navy, 985. AMNESTY: Power to grant, 85, 86. ANALYTICAL INDEX: Constitution, 143-lSl. ANCHORAGE: Vessels in waters of United States, 1300, 1301, 1382, 1485. ANNAPOLIS: See Naval Academy. Naval Academy established at, 738. ANNUAL REPORTS: See Reports. ANNUITIES: Retired civil employees, 1537, 1538, 1542. ANTEDATING: See Date. Commissions; midshipmen on graduation 1479. Rank- promotion, 649-651, 731-734. commencement of pay, 830-838. Marine Corps, 931. retirement, 912. ANTIDIPHTHERIC SERUM: Injections; naval personnel must submit to, 458. APPEALS: Attorney General has no jurisdiction over decisions of departments, 302. Court of Claims decisions, 1365. Deck court decisions, 1309. Habeas corpus cases, 409. Not required by due process of law, 125. To heads of departments, 79, 362. President, 79, 83. APPLICANTS: For enlistment, not troops of United States, 1180. APPLICATIONS: Quarters; allowance of commutation without, 7C2. APPOINTMENTS : See Commission; Examinations; Examining boards; Recess appointments; reinstatement. Acceptance, 96, 100, 207. date pay commences, naval officers, 829. implied resignation of office already held, 529. not necessary to complete, 96. promotion, 97, 652, 654. Accounting officers notified, when made without consent of Senate, 1072. Acting; assistant surgeons, 527, 1184, 1261. 1566 INDEX. APPOINTMENTS— Continued. Acting; chaplains, 1396. ensigns, 799, 1435, 1436, 1438, 1439. inherent power of President to make, 473. macliinists, 1269. paymasters, 472, 473, 839. warrant officers, 525, 794, 803. Admiral of the Navy may appoint secretary, 527. Age requirements, 462-464, 470, 502, 512, 592, 750, 751, 126,S-1270, 1277, 1407, 1422, 1427, 1435, 1461, 1472, 1473, 1507. Assistant paymasters, 469, 1407. Secretary of the Navy, 1204. Board's advice not binding on appointing power, 95. Brigadier generals. Marine Corps, 1459, 1460. Chaplains, 501, 502. Chief of Naval Operations, 1401. Chiefs of bureaus. Navy Departments, 362-364, 1294. power to make, 207. Civil- engineer corps, 531. Establishment, heads of departments empowered to make, 205. navy yards, 779, 780. CiviUan storekeepers, foreign stations, 533. Commissioned warrant officers from warrant officers, 1282. Commissions delivered after adjournment of Senate, 1072. withheld after signing, 652. Competitive examinations required, 94, 1268, 1269. 1277, 1472, 1473. Congress- can not make, 92. can not require President to make, 767. may change rank of officer but not appoint to different office, 910. impose additional duties without appointing to new office, 94. indirectly limit power of executive, 92. prescribe general qualifications, 95. Constitutional provision for, 89. Constitutionality of— special act designating appointee, 93. statutes requiring examinations , 95, 709. requiring promotion by seniority, 647, 648, 681. Construction corps, 505, 506, 1408, 1428. Date of, 97, 207. specified in commission; conclusive upon account- ing officers, 238. when length of service for promotion commences, 464. Decisions relating to, 89-100. Defined, 93, 513, 522, 653, 654, 830, 930. Delegation of power to make, 207, 533. Dental Corps, Navy, 1421, 1422. Diplomatic or consular service; naval officer accepting, 579. Director of civilian markmanship; marine officer eUgible, 1465. Disbursing agents, 1095. clerks, 209, 211. officer, foreign station, 788. Discretionary power, 95. Dismissal of naval officers by President and Senate, 1011. Dismissed midshipmen; restrictions on, 582, 1281. officers; ineUgible, 582, 1503. "Employ" construed to mean appoint, 206. Enlisted men as warrant or commissioned officers; discharge, 523. APPOINTMENTS— Continued. Ensign, from commissioned warrant officers, 1314. from graduates of Naval Academy, 765-768, 1193, 1392. from warrant officers, 1277, 1280-1282. Examinations; acting chaplains, 1396. acting ensigns, 1435. assistant paymasters, 470. assistant surgeons, 462. civil employees, 202, 780. competitive required, 94, 1268, 1269, 1472, 1473. constitutionality of statutes requiring, 95, 709. ensigns from warrant officers, 1277. machinists, 1268, 1269. Marine Corps, 1270, 1461. midshipmen, 748, 1472, 1473. Naval Reserve Force, 1445, 1451. Nurse Corps, female, 1303, 1304. pay clerks, 1407. pharmacists, 1420. subject to, 768. Expiration of, 208. Final as to qualifications of candidate, 96. Flag officers, 576. Fleet staff officers, 499. Form of, 99. Inspector, weigher, and measurer of fuel for public service, 1110. Judge Advocate General of the Navy, 1186, 1187. Judicial decisions relating to, 338. Machinists; qualifications, etc., 1268, 1269. Major general commandant. Marine Corps, 929, 1392, 1460. Major generals, Marine Corps, 1512. Marine Corps; age and examination of candidates, 1270, 1461. second Ueutenants, 922, 925, 1270, 1392, 1461, 1462. Medical Corps, 461-464. Members of Congress accepting consideration for influencing; 1332, 1333. Midshipmen, 747, 748, 1281, 1294, 1295, 1472, 1473, 1502, 1507. on graduation, 765-768, 1188, 1189, 1193, 1221, 1222, 1270, 1392, 1479. to Navy or Marine Corps; commencement of pay, 1221, 1222, 1479. Naval — Observatory; board of visitors to recommend, 1276. officers dismissed or dropped from rolls for un- authorized absence, not eUgible for, 582, 1503. in time of war, 1392, 1393. may employ laborers at navy yards, 780. previously convicted of desertion, 573. Reserve Force, 1444, 1445. storekeepers, 531. Navy mail clerks; mates eligible for, 522. Nomination of ineUgible; effect of, 96. Nurse Corps, female. Navy, 1303, 1304. Oath of office — appointment or promotion; chief clerks to admia- ister, 1215. civil, military, and naval service, 1065, 1066. reappointment, 97. Paymaster of the fleet, 474. Pharmacists, by Secretary of the Navy, 1262. Preference to discharged soldiers, etc., in civil establish- ment, 1065, 1383, 1524, 1526. President making, without consent of Senate, 577. accounting officers notified, 1072. Probationary; acting ensigns, 1435. Marine Corps, 925, 1461, 1462. 1567 IXDEX. APPOINTMENTS— rontiniied. Proffssors of mathematics, r>03, 504. Promotion and, definea, 93, 513, 522, 653, 654, 830, 930. by seniority; constitutionality of statutes relating to, &17, 648, 681. Qualifications of candidate not open to review after appointment, 96. Rank, change in, is not appointment to different ollice, 910. Reappointment not required by increase in pay of ollice, 208, 341. of naval oilicers who have been honorably dis- charged, 1393. Recess; accounting officers notified of, 1072. form of, 217. no salary until confirmation if vacancy existed while Senate in session, 1066. not accepted, 461, 462. retirement of officer while holding, frtO. Senate temporarily adjourned, 33, 217. vacancies in departments, 216, 217. Restoration of dismissed officers, 94, 582, 1281, 1503. Retired officers to command squadrons and single ships. 659. Revocation of, 524, 529, 652, 747, 1396, 1435, 1461, 1462. Secretary of the Navy acts for President, 500. authorizeIENT OF THE NAVY— Continued. Offenses — Continued . not specified, how punished, 996-1002. on shore, against inhabitants, 985. Officers reduced to enlisted rating, 988. Oppression of subordinates, 984. Orders; disobeying, of superior officer, 979. general, issued by Secretary of the Navy; violating or refusing obedience to, 985. importance of prompt obedience to, 980, 981. negligence in obeying, 984. during battle or when preparing for, 980. Ordinary seaman; officer reduced to rating of, 988. Ordnance, intended for naval ser-\ace; unlawfully selling, stealing, etc., 990. Passenger dying on naval vessels; effects secured for legal representatives, 995. on naval vessels; report of to Secretary of the Navy, 995. Patriotism; commanding officers to show example of, 978, 979. Pajonaster to secure effects of deceased persons for legal representatives, 995. sign accounts of men sent from ship for any cause, 995. Pay; summary court-martial may adjudge loss of, 1007. Peace, desertion in time of, or attempting to desert. or aiding and assisting others, 9S5. Penitentiary; imprisonment in, 983, 984. Perjury before general court-martial; how punished 1021. in connection with claims against United States, 990. Persons amenable to, 973-978. crew of lost vessels, until discharge from service, 996. discharged or dismissed from se^^^ce; trial after. 991. enlisted men after expiration of enlistment, 555, 556. illegal discharge revoked; jurisdiction after, 1008. Petty officers may be tried by summary courts-martial 1006. punishments inflicted upon by commanding offi- cer, 1002. Pledge, receiving United States property as, from unauthorized person, 990. Plimdering inhabitants on shore, 985. Police duties, extra; summary court martial may adjudge, 1007. Prisons, civil; offenders may be sentenced to, 98.3, 984. Prisoners; acting master-at-arms refusing to receive, or suffering to escape, 985. subject to discipline of institution in which con- fined, 983, 984. Private property; deceased persons; secured for legal representatives, 995. importing in naval vessels, 989. inhabitants on shore; injuring in any way, 985. Private reprimand by commanding officer, 1002. Prize: maltreating persons on, 994. money; list of persons claiming, 994. removing property from, 994. Procuring others to commit frauds upon United States, 990, 991. the making or signing of a false muster, 985. Profane swearing, 984. Property of inhabitants on shore; injuring in any way, 985. 1574 INDEX. ARTICLES FOR THE GOVERNMENT OF THE NAVY— Continued. Provisions; frequent inspections of to be made on vessels, 995. precautions to be taken for preservation of, 99o. wasting or permitting same, 985. Provoking words, gestures, or menaces toward other persons in tlie Navy, 984. Public Healtli Service subject to, 1491. Public property; buying or receiving in pledge from one without authority, 990. delivering less amount than receipt calls for, 990. failing to prevent destruction of, 984. possession or custody of; offenses committed in connection with, 990. stealing, embezzling, misappropriating, unlawfully selling, etc., 990. unlawfully destroying, 980. wasting or permitting same, 985. Punishments — By commander, 1002. to be entered in ship's log, 1002. By deck courts, 1308. By officer temporarily commanding, 1005. By summary courts-martial, 100<5, 1007, 1309. Fine and imprisonment, 990. General courts-martial may inflict same as sum- mary courts, 1010. Limitation of. in time of peace, 1062-1064. On vessels restricted, 1002. Prohibited; flogging, branding, etc., 1034. To be adeciuate for nature of offense, 1034. Purchasing property of United States from unauthor- ized person, 990. Pusillanimously crying for quarter, 980. Quarreling with other persons in Navy, 984. Quarrels, fomenting between other persons in the Navy, 984. Quarter, pusillanimously crying tor, 980. Rated men; complete lists of to be furnished Secretary of the Navy by vessels, 995. Rating — Incompetency; summary court martial may dis- rate for, 1007. Of men, statement of must accompany on transfer to other vessels, 995. Reduction in by commanding officer, 1002. by summary court-martial, 1006. Rebel; intercourse with; punishment for unauthor- ized, 979. Receiving merchandise for freight, sale, or traffic on naval vessel, 985, 986. or entertaining deserters, 985. stolen goods; buying, etc., property of the United States iUegally sold, 990. Receipts; delivering less property or money than receipt calls for, 990. making or delivering without knowing truth of, 990. Records required to be kept by commanding officers of vessels, 995, 996. Recruiting officers enlisting prohibited classes, 994. Reduction— In rating by commanding officer, 1002. by summary court-martial, 1006, 1007. , 01 officer to another office, 988. to enlisted rating, 988. confirmation of sentence, 1045. Refusing obedience to lawful regulation or general order of Secretary of the Navy, 985. ARTICLES FOR THE GOVERNMENT OF THE NAVY— Continued. Refusing or failing to detect, apprehend and bring to punishment all offenders, or to aid all persons for that purpose, 985. to receive prisoners; acting master at arms, 985. Regulations of Secretary of the Navy; violating or refusing obedience to, 985. Repeated offenses, 1003, 1004. Report of casualties to he furnished Secretary of Navy by vessels, 995. Reprimand, private, by commanding officer, 1002. Reproachful words, gestures, or menances toward other persons in Navy, 984. Resignation, acceptance of necessary before quitting duties, 989. Respect due commanding officer; combinations to lessen, 984. Retired officers subject to, 631. Rocks or shoals; nmning vessel on, 980. through negligence, 985. Scandalous conduct tending to the destruction of good morals, 984, 986, 998, 1028. whether disobedience of orders constitutes, 980, 986. Secretary of the Navy; regulation or general order of; violating or refusing obedience to, 985. to be furnished complete list of persons on board vessels, 995. Seditious words; uttering, 984. Seducing messages from enemy; pimishment for delivering, 981. Selling property intended for naval service, imlaw- fuUy, 990. Sending or accepting challenge to fight a duel, 984. Setting fire to puljlic property or otherwise unlawfully destroying, 980. Ship's books; entries required to be made in, 995, 996, log; punishments inflicted by commander to be entered in, 1002. Shoals or rocks; running vessel on, 980. through negligence, 985. Shore- Liberty; deprivation of, by commanding officer, as punishment, 1002. on foreign station, deprivation of by summary court martial, 1006. Offenses on, against inhabitants, 985. Sick or disabled men; separate compartment for on naval vessels, 995. Signatures; forging in connection with claims against United States, 990. Signing false muster, or aiding, abetting, or procuring, 985. Silver, gold, or jewels; transporting on naval vessel, 985, 986. Sleeping upon watch, 979. Solitary confinement by commanding officer as punish- ment, 1002. summary coiu-t-martial may adjudge, 1006. Spies, 981. Spirits, distilled; allowed on vessels only for medical purposes, 989. Station and duty; absence from without leave or after expiration of, 985. leaving before being regularly relieved, 979. Statute of limitations; desertion in time of peace, 1060-1062. general offenses, 1057-1060. Stealing, 984. money or property intended for naval service, 990- 1575 INDEX. ARTICLES FOR THE GOVERNMENT OF THE NAVY— Continued. Stores, medical; distilled spirits on naval vessels, 989. or supplies; dealing in for private benefit, 989. subsistence, intended for naval serWce; unlawfully selling, stealing, etc., 990. Stranding vassel, 980. through negligence, 985. Striking flag to enemy, 980. other persons in the Navy, 984. superior oilicer while in execution of duties of his office, 979. Subordination; commanding officers to show example of, 978, 979. Subsistence stores; intended for naval service; unlaw- fully selling, stealing, etc., 990. Suffering prisoners to escape; acting master at arms, 98.5. vessel to be stranded or run upon rocks or shoals or improperly hazarded, 980, 985. Summary courts-martial — Pro\isions relating to, 1005-1010. Punishments, 1006, 1007, 1309. Sunday; di\'ine services to be conducted on, 979. Superior officer — Contempt or disrespect to, while in execution of his duties, 984, 986. Definition of, 980, 986. Disobeying orders of, 979. FaiUng to inform of intended mutiny, 979. Striking, assaulting, etc., 979. Supplies; dealing in for private benefit, 989. Surgeon; duties relating to health of crew, 995. to report concerning health of accused sentenced by simimary court-martial, 1009. Suspension from duty by commanding officer, 1002. Tattooing prohibited as a pimislmient, 1034. Text of, and decisions relating to, 972-1064. Theft, 984. Threatening to strike or assault superior officer while in execution of his duties, 979. Trading for private benefit, on vessels or at navy yards or stations, 989. Transportation of gold, silver, or jewels, 985, 986. merchandise for freight, sale, or traffic, 985, 986. Treating superior officer with contempt while in execution of his duties, 984. Trust; corrupting person to betray, 981. deserting or betraying in time of war, or enticing or aiding others to, 979. Uniting with mutiny or mutinous assembly, 979. Using provoking or reproachful words, gestures, or menaces toward other persons in Navy, 984. Uttering seditious or mutinous words, 984. A'essels — Articles for the government of the Navy to l)e displayed on, 996. Complete list of persons on board to be furnished Secretary of Navy, 995. Importing dutiable goods in, 989. Injury to, or equipment, so as to hazard safety of, or endanger crew, 980. Log; pmiishments infUcted by commander to be entered in, 1002. Men transferred to; accounts must accompany, 995. Pas.sengers on, 995. Punishments on. by acting commanding officer, 1005. by commanding officer, 1002. restricted, 1002. ARTICLES FOB THE GOVERNMENT OF THE NAVY-Continued. V^essels — Continued. Receiving merchandise on board for freight, sale, or traffic, 985, 986. Records required to be kept by, 995, 996. Separate compartment for treatment of sick or disabled, 995. Stranding, hazarding, or running upon rocks or shoals, through negligence, 985. SulTermg to be stranded or nm upon rocks or shoals, or improperly hazarded, 980. Trading on, for private benefit, 989. Transporting merchandise, gold, silver, or jewels on, 985, 986. Wrecked or lost; court-martial or court of inquiry to investigate, 996. status of crew; authority of officers, 996. Violating lawful regulation or general order of the Secretary of the Navy, 985. ^'i^tue; commanding officer's example of, 978. War; alhes; faihng to assist vessels of, 980. corrupting person in Navy to betray his trust, 981. deUvering message from enemy, 981. deserters during; penalty for enlistment of, 994. deserting or betraying trust during, or aiding or enticing others to, 979. desertion in time of, 979. enticing others to desert in time of, 979. failing to encourage inferior officers and men to fight, 980. to seek encounter or to assist other vessels dur- ing battle, 980. giving intelligence to, or communicating with, enemy or rebel, 979. neglecting to join on signal for battle, 980. to prepare for action, whenenemyin sight, 980. negUgencein obeying orders during battle or when preparing for, 980. spies, pimishment of, 981. time of, construed, 981. yielding or cowardly conduct during battle, 980. Warrant officers; punishments inflicted upon by com- manding oflicers, 1002. Wasting ammunition, provisions, or other property, or permitting same, 985. Watch, sleeping upon, 979. When on shore plundering, abusing, or maltreating inhabitants, or injuring their property, 985. Words, mutinous or seditious; punishment for utter- ing, 984. provoking or reproachful, use of toward other persons in the Navy, 984. Wreck or loss of vessels; authority of officers over crew after, 996. ARTICLES OF WAR: See Army; Articles for the Government of the Navij: Courts-martial; Marine Corps. Command when different corps of Army happen to join: Marine officers, etc., 1544, 1545. Deserters from Navy or Marine Corps; punishment for retaining in Army, 1544. Enlisted men transferred from Army to Navy or Ma- rine Corps, 555. General provisions, 442-444, 1544, 1545. Marine Corps; officers may serve on Army courts-mar- tial, 1544. subject to, 960, 961. when detached for service with Army, 1544. Naval personnel not subject to, except in special in- stances, 442, 443. 1576 INDEX. ARTICLES OF WAR— Continued. Naval personnel not '■ubject to, except as specifically provided, 1544. Navy medical personnel serving with Army, subject to, 1421. Offenses against, punishable by naval courts-martial, 1544. Persons subject to, 1544. ARTIFICIAL LIMBS: Allowance of, to disabled personnel, 1156, 1157, 1181, 1217. ARTS: Commission of Fine Arts; duties, 1559, 1560. ASSASSINATION: Mailing matter tending to incite, 1340, 1341. ASSAULT: Attempting or threatening to commit; punishment for. Navy, 979. Intent to commit any felony, 1349. rape, 1349. Mail custodian, oflense against, 1339. Maiming, etc., 1350. Postal cleric, oflense against, 1338. Pimishment for assaulting other persons in Navy, 984. superior officer, Navy, 979. ASSAULT AND BATTERY: Definition of, 981. Striking other persons in Navy, 984. ASSEMBLY: Mutinous; punishment for, Navy, 979. ASSIGNMENT: Claims against United States, 1093. Contracts with United States, 1117. Retirement annuities, etc., civil employees, 1543. Wages, naval service, 573, 892. ASSIMILATED RANK: Warrant officers, 704. ASSISTANTS: See Chiefs of bureaus; Navy mail clerks. Authority to act for head of department, 194, 422. Chief of Naval Operations, 1418. Chiefs of bureaus, 362, 466, 1222, 1224, 1261, 1280, 1284, 1418. authority of, 213-214. ' pay of, 371, 372. status and powers of, 377. Civil engineers, appointment, 531. pay, 803. rank, 1428, 1474. Construed to mean only statutory assistant, 213. Dental surgeons, appointment, etc., 1421. Heads of departments, authority of, 213. Judge Advocate, 223. Judge Advocate General, 1418. Messengers, 205, 209. Naval constnictors, 506. appointment, 506, 1408, 1428. pay, 793, 802. promotion, 1266. rank, 677, 1266, 1427, 1428. Paymasters, appointment, 469, 470, 1407. bonds, 474. commanding officer not required to act as, 574. defined, 497. pay, 793, 802. promoted to passed assistant paymasters, 471 . rank, 676. Secretary of the Navy, appointment, 1204. duties, 1217. general provisions relating to, 333, 334. ASSISTANTS— Continued. Secretary of the Navy, Supreme Court reports and digests furnished to, i;565. Surgeons; appointment, 461-464, 1427. detail as assistant to Bureau of Medicine and Sur- gery, 466. pay, 793, 802. precedence; not disturbed by act of August 29, 1916; 1480, 1481. promotion 464, 12.51. rank and precedence, 673, 1273, 1426, 1480, 1481. ASSOCIATIONS: Membership fees and expenses of pubUc officers; re- strictions on, 1371. ASYLUMS: General provisions relating to, 1159-1163. Naval; estabUshment of authorized, 11.59, 1160. ATLANTA: Penitentiary; products used by naval forces, 1519, 1520. ATTACHMENT: Retirement annuities, etc., civil employees, 1.543. Wages of enlisted men, 573, 574. ATTAINDER: Bills of, defined, 73. forfeiture of citizenship rights by desertion, 1078. ATTEMPTS: See Articles for the government of the Navy; Crimes. To defraud, investigation of, 217. ATTEST: Powers of attorney; assignment of wages; duties of commanding officer, 573, 892. ATTORNEY: See Counsel. Assisting deserters, 790. Contracts; parties submitting bids may have attorneys present at opening, 1110. Court of inquiry proceedings; right of party under in- vestigation, 1056. Fees not to be deducted by accounting officers, naval cases, 1272. Notaries public appearing before executive depart- ments, 1295. Practicing before departments; advertising by, 1411. Prosecuting claims, procuring contracts, etc.; pubUc officers not to act as, 1332, 1333. PubUc officers accepting fee as, before courts-martial, departments, etc., 1.333. Records not furnished to, for use in court, 356. ATTORNEY GENERAL: See DepartmeTit of Justice. Argument of cases in courts, 322. Coimsel furnished to departments investigating claims' 220. Court decisions binding on until reversed, 320. Court of Claims cases; departments must furnish in- formation to, 220. District attorneys and marshals supervised by, SZi. General provisions relating to, 281-326. supervision of litigation involving the Govern- ment, 281. Jurisdiction with relation to accounting officers, 311- 320. Navy Department to be furnished legal advice by, 321. Opinions; accounting officers bound by, 318. constitutionahty of statutes, 321. decisions relating to, 29.5-321. foreign law; will not construe, 299. form of request for, 307-309. heads of departments requiring, 295. hypothetical questions, 299-301. 1577 INDEX. ATTORNEY GENERAL— Continued. Opinions ; Judge Advocate (ieneral's opinion must accompany requests for, 309, 321. judicial (|uestions; will not answer, 306. jurisdiction doubtful, will answer question, 321. Members of Congress desiring, 281, 303. naval officer desiring, as to acceptance of civil appointment, oSO. obiter dicta, 311. President rcciuiring, 282. publication of, 326. question must arise in administration of depart- ment, 299-307. question must be one of law, 296-299. reasons for declining to answer certain questions 320, 321. subordinates to render for officers of departments, 323. title to lands purchased by United States, 282. weight of, 310, 311, 322. who may request, 295, 296. will not review decisions of departments, 302. President may require opinion of, S3. Supreme Court reports and digests distributed by,1365. AUCTION: Sale of old naval material, 1190, 1204. AUDITORS: See A ccounting officers. AUSTRI.'V-HUNGARY: Termination of war with; date fixed for certain pur- poses, 1557-1559. AUTHENTICATION: Records desired for use in court, 426, 427. State laws and records, 429, 430. AUTHORIZED: Construed as mandatory, 1203. AUTHORIZED ENLISTED STRENGTH: Apprentices additional to authorized number, 536, 1248, 1249, 1478. Daily average, 537, 1396. Deficiencies may be supplied by reservists on active duty, 1548, 1549. Definition of, 537, 1478. Hospital corps additional to, 1419. Increased during national emergency, 1463, 1528. Marine Corps, 919, 920, 1416, 1548. distribution in grades, 1463. number authorized by personnel act, 1271. permanently authorized, 1548. Men detailed to nautical school in Philippines, addi- tional to, 1297, 1298. furloughed without pay additional to, 1436. sentenced to discharge not included, 536, 1423, 1463, 1478. Naval Flying Corps additional to, 1437. Navy, 534-539, 1478, 1511. general provisions relating to, 534-539. Number of line officers based on total, 1549. Permanent number not affected by act of July 11, 1919, 1528. strength not reduced by act of June 4, 1920, 1549. Reservists on active duty counted as part of, 1548, 1549. Total authorized enlisted strength, definition of, 537. AUTOMOBILES: See Vehicles. AUTOPSIES: .\uthority of naval medical officers to perform, 460, 461. AUXILIARY: Reserve, Naval Reserve Force, 1452, 1453. Service, active duty, naval reserve officers, authorized in, 1549. AUXI LI ARY— Continued . Vessels; officers and men of must belong to Naval Re- serve Force, 1448. AVERAGE: Authorized number of enlisted men, 537, 1396. AVIATION: Active duty authorized of reserve officers in, 1.549. Advisory committee for aeronautics; appointment, duties, etc., 1402. Allowances not increased for, 1513. Claims for damages caused by naval aircraft: settle- ment of; reports, 1545. Coast Guard personnel instructed at Navy schools, 1456 Detail of officers and enlisted men for, 1437-1440. Jurisdiction of Army and Navy defined, 1554. Naval Flying Corps, 1437-1441. Pay, 817, 818, 865, 1403, 1404. Promotion of officers commissioned for aeronautic duties only, 1439. AWNINGS: Estimates and appropriations for. Navy, 1103. BAD-CONDUCT DISCHARGE: Civilian clothing furnished, 1107. Illegal; sentence set aside by Secretary of the Navy, 1008, 1009. Not to be executed in foreign coimtry, 1006. Summary court-martial may adjudge, 1006. War risk compensation excluded by, 1500. BADGES: Military societies; wearing of by naval personnel, 1216, 1224, 1273, 1280, 1299. Naval Reserve Force; unauthorized wearing of, 1447. BAIL: Arrest of naval officer while out on, 1026. Court-martial jurisdiction over man released on, 63, 64. BANDS: See Marine Band; Naval Academy. Marine Band not to compete with civilians, 1463, 1464. Navy, not to compete with civilians, 1304, 1411, 1412. BANKS: Depositing public money in, contrary to law, prohib- ited, 1098. BASE PAY: Definition of, 848, 849, 865. BATTALION: Separate or detached; commanding officer of may con- vene summary courts-martial, 1441. BATTLE: See Articles for the government of the Navy: War. Advancement of officers for conduct in, 453, 454, 734- 736, 921, 933, 1289. Cowardly conduct during; punishment. Navy, 980. Desertion during, 9S0. Distinguished conduct, enlisted men during; reward. 512, 1275. medals of honor, 512, 1402, 1.521-1523. Highly distinguished conduct in conflict with enemy; thanks of of Congress for, 736. Memorial to officers who rendered highly distinguished service, 1314, 1315, 1559. BATTLESHIPS: See Vessels of the Navy. Naming of, 1261, 1262. State interference with, 49. BELLIGERENTS: Property of, 38. BENEFITS: Defined; includes retirement for disability, 602. BETRAYING TRUST: In time of war, or enticing others to, 979. 1578 INDEX. BETRAYING TRUST— Continued. Punishment for endeavoring to corrupt person in Navy, 981. BEYOND SEAS: See Foreign shore duty. Definition of; foreign shore duty pay, 1275. Pay for shore duty, officers. Navy, 818-821, 1302. Shore duty, naval officers under personnel act, 1267. BIDS: See Contracts. Sale of naval vessels; deposit to accompany, 1192. BIENNIAL REGISTER: Data to be furnished for, 228, 1235, 1236. BIGAMY: Punishment for, 1354. BILL: See Injunction. Of attainder; definition, 73. Forfeiture of citizenship rights, 1078. Of exchange, premium on sales of, credited to "Pay, miscellaneous," 1222. Of health, estimates and appropriations for. Navy, 1103. Of rights, accused, waiver of protection, 121, 122. constitutional amendments establishing, 116. BINDING: See Printing and binding. BLACKSMITH: Ratings established in Navy, 1494, 1495. BLANK BOOKS: Work to be done at Government Printing Office, 1525. BLANKS: Public Printer to furnish to departments, 1278. BLUE BOOK: Data required for biennial register of employees, 228, 1235, 1236. Printing and distribution of, 1235, 1236. BOARDS: See Examinations; Examining boards; Retiring boards. Academic board. Naval Academy, 751, 753, 754. Advisory, to assist appointing power, 95. Army, marine serving with; jurisdiction to review, 961. Expenses of commissions and inquiries not to be paid without special appropriation, 1105. Foreign hydrographic surveys to be pubUshed only after report of, 1106, 1237. Illegally constituted; retiring, 971. Inquiry, Naval Acadamy; investigation of midship- men, 1286. Inspection and survey of naval vessels, 1190. Interdepartmental social hygiene; creation of, etc., 1517, 1518. Investigation, oaths administered to witnesses, 217. Irregularities not goverened by rules applicable to courts, 69. Jurisdiction of courts over proceedings, examining board, 728. Labor employment, navy yards; mandamus proceed- ings against, 780. Majority vote, board of visitors, as to details to Naval Observatory, 1276. naval examining Ijoard, 721. two-thirds required for promotion by selection, 1432. Medical — Appointments as acting ensigns, 1435. in Naval Reserve Force, 1445. Convened on foreign stations, 707, 1472. Naval surgeons, defined; means medical officers, 463. BO ARDS— Continued . Medical— Continued. Naval surgeons; examinations for promotion, 707- 710. number of members, 70S. President's action on, 72.5-728. retirement of officer not recommended for pro- motion by, 594. Secretary of the Na^T may act for President, 1481, 1482. Promotion, acting ensigns to lieutenant (junior grade), 1436. Naval Reserve Force, 1445. Secretary of the Navy may act on, for Presi- dent, 1481, 1482. Survey; transportation of enlisted men discharged, 875, 1274, 1275. More than one officer required to constitute, 708. Naval engineers; to report upon use of patented arti- cles, 776. Plucking board for retirement of naval officers, 1266. Precedence of line and start members, 704. President's action, .596, 616, 725-728, 1481, 1482. revocation of, 619, 630, 734. Promotion; physical examination, 707-710. Quasi judicial, 596. Reconsideration of action on own initiative, 621. Repairs to vessels, reports by, 776, 777. Retiring; Judge .\dvocating General's duties relating to, 1186, 1187. Marine Corps, 963, 964. Navy, 598-617. Revocation of President's action on, 619, 630, 734. Samples of tobacco for Navy examined by, 1250. Secretary of the Navy to convene; examination for assistant paymaster, 470. for report concerning foreign hydrographic sur- veys, 1106, 1237. for selection of officers for promotion, 1430, 1431 , Selection for promotion, 1430-14.33. President's action on, 1433. records of officers examined by, 722, 723. Supervisory: examinations for promotion, 724. Survey; precedence of line and staff members, 704. value of enemy vessels seized, 1477. Unauthorized; expenses of not payable, 1316. Visitors, Naval Academy, 1197, 1458. Naval Observatory, 1276. BOATSWAINS: See Warrant officers. BOILERS: Steam; purchase of for Navy, 1182, 1183. BONA FIDE: Home or residence; definition, 876. BONDS: Acknowledgment, 483. Acting disbursing clerks, 1315, 1316. Alteration of, 484. Amount; biennial examination into sufficiency of, 486, 1247. duties of officer empowered to fix, 1247. may be increased by President, 1098. Navy mail clerks and assistants, 1387, 1388. officers of Supply Corps, 474. Secretary of the Navy to fix; civilian storekeepers, 533. Approval, 486-487. duties of officer having power of, 1247. naval officers' pay commences on date of, 829. Certificate of sufficiency, 483. 54641°— 22- -100 1579 INDEX. BONDS- Continued. Civilian storekeepers required to give, 533. Condition of, 4S7-l. restrictions on use of; written order re(|uired, llO.'i. Creation of, statutory authority required, 359. Kngineering; appointment of chief, 379. assistant to chief, 12S4. name of Sfeam Knpineering changed to, l.')4S. Kquipment; appointment of chief, 377. duties transferred and bureau abolished, i:}97, 139S. Kstiraates of e.xpenses, 385. Hydrographic Office attached to Bureau of Naviga- tion, 12.W5. Line and stalT bureaus, 378, 672. Marine Corps held not to be, 957. Medicine and Surgery; appointment of chief, 380. detail of assistant to, 466. Navigation; appointment of chief, 377. assistant chief, 1222. Hydrographic Office attached to, 387, 1236, 1237. Navy Department; creation and designation of, 357. duties ot, 357, 359, 360. grouping of in divisions, 360. Judge Advocate General's office not different from 359. ^^arine Corps not one of, 359. Navy Pay Office at Washington is not one of, 3.59. Ordnance: appointment of chief, 377, 378. assistant to chief, pay and duties, 1261. Provisions and Clothing; name changed to Supplies and Accounts, 1218. Records; custody of, 361. Stall and line bureaus, 378, 672. Steam Engineering; name changed to Engineering, 1548. Supplier and Accounts; appointment of chief, 379. assistants, 1224, 1271, 1272, 1280. money accounts to show direct and indirect charges, 1365, 1366. name changed to, 1218. overhead charges; how distributed, 1398. property accounts to be kept, etc., 1203. report to Congress of supplies on hand, etc., 1203. ship 's stores profits accounted for to, 1359. witness fees and mileage paid by, 1310. Supplies purchased and issued without regard to bureaus, 1216. Transfer of supplies between, with and without charge, 1203. Yards and Docks; appointment of chief, 377. appropriation for maintenance; use of, 1530. assistant, 1418. power plants at navy yards and stations consoli- dated under, 1282. (luarterly reports of automobiles made to, 1546. BURGLARY: ISreaking^ and entering vessel, i:?52, 1353. into compartment of vessel, etc., used by mail service, 1338. post office, 1338. BURIAL,: See Funeral. P2xpenses; enlisted men furloughed without pay, 537. naval personnel, 537, 905, 90G, 1103, 1305, i:W3, 1498. National cemeteries, 1103. BUTTER: Purchase of for Navy, 1113, 1115. CABINET OFFICERS: See Heads of departments. CADET ENGINEERS, 768-770, 795,806. CA»IPS: Marine Corps training camps, 1464. CANDIDATES: Sco KTamininy boards; Appointments. CANDLES: Estimates and appropriations for Navy, 1 103. CANNON: Balls, loan or gift of, to societies and municipalities, 1249. Sale of smooth-bore, for experimental purposes, 1193. Tests of, for ilavy, 1195. CAPITAL PUNISHMENT: Court-martial sentence must be confirmed by Presi- dent, 1036. Mitigation of death sentence, 10.54, 1055. Naval offenses, 979-982. Officer demanding trial may be sentenced to, 10' 2. Prohibited in the Navy imless specifically authorized, 1034. Two-thirds of court-martial must concur in sentence, 1034. AVar Risk Insurance benefits excluded by, 1500. CAPTAIN OF THE YARD: Additional pay as aid, 670. CAPTAINS: Army; lieutenants in the Navy rank with, 062. Marine Corps; number of, 1458. Navy; advancement to admiral or vice admiral during war, 1481. number in staff corps, 1427, 1428. pay, 791, 798, 1.301, 1:302. promotion by selection to; line, 1430. staff corps, 1513. proportion of inline, 1425. rank with colonels, 662. retired, considered as having been retired with rank of rear admiral, 912. retirement of, for piu-pose of creating vacancies, 1265. CAPTAIN S CLERK: Civil appointees not allowed at sea; naval officers de- taUedas, 1182. Pay, 794, 806. Service held to be naval service, 588. CAPTURES: See Vessels of the Nary. General pro\isions relating to, 1130, 1131, 1137-1147. Power of Congress to regulate, 38. Vessels belonging to alien enemies, 1477. CARNAL KNOWLEDGE: Female under sixteen, 1349. CARPENTERS: See Warrant officers. CARRIAGES: See Vehicles. CARTS: Estimates and appropriations for, Navy, 1103. CASHIERED: Dismissal distinguished, 1032. CASUALTIES: Report of to Secretary of the Navy, 995. CATCH-ALL CLAUSE: Articles for the Government of the Navy, 996-1002. CATALOGUE: Government publications, 1234. CEMETERIES: Burial in national cemeteries, 1163. Entombments in Arlington Memorial Amphitheater, 1559. Lands acquired for, 285. 1582 INDEX. CENSUS: Guam and Samoa; Alaska, etc., 1525. CERTIFICATES: Discliarge, in true names, 1379, 1380. False, punishment for making or using, 990, 1332. Sufficiency of bonds, 483. CERTIFIED COPIES: See Copks. CERTIORARI: E.xamining board's proceedings can not be reviewed by civil courts, 728. CHALLENGE: Right of accused before court-martial, 131, 1018. CHAPEL: Naval Academy; use of for memorials, 1314, 1315. CHAPLAINS: See Acting officers; Pay of Xaval Establishment; Staff officers. Advancement in rank, 679, 680. Annual reports to Secretary of the Navy, 503. Dutj- to conduct divine services on Sunday, 979. Examination of acting chaplains for appointment as^ 1396. Form of worship, 502. Number and appointment of, 501, 502, 1396. Pay and allowances, 793, 802, 1301, 1302, 1303. Promotion, 1396, 1397. Qualifications, 502. Rank, 679, 680, 1268. 1396. Restriction on number commissioned in any one year, 1397. Total number of, and acting, 1396. CHARACTER: Evidence, 1024. right of accused to process for obtaining witnesses, 1.33. CHARGES: Investigation of, 217, 340. Right of accused to be informed of, 129, 131. CHARGES AND SPECIFICATIONS: Accused furnished with, at time of arrest, 131, 1025. Additional; restriction on trying, 1025, 102S, 1029. Amendment of, 1028. "Charge'' and "specification" explained, 1026, 1027. Decisions relating to, 1026-1029. Defective; acquittal bar to second trial, 120. Description of accused, 1028. Fatally defective; proceedings and sentence a nullity, lOOS, 1009. Joinder of offenses, 1028. Lesser offense included in charge, 1029. Objections to, waived by accused, 1045 Offenses not specificaUy provided for, how charged, 1028. Perjury; averments necessary, 431. Scandalous conduct tending to the destruction of good morals, 1028. Subornation of perjury; necessary averments, 431. Sufficiency; jurisdiction of civil courts, 402. question for decision of court-martial, 1028. technical averments, 1027. CHARTS: Hydrographic Office to provide, 387. number of copies to be printed, 1238. PUot charts; Hydrographic Office, 388. Preparation and sale of; Hydrographic Office, 390,1236, Publication of foreign hydrographic surveys restricted, 1103. Sale of at cost, 1182, 1184, 1236. Wilkes's Expedition; plates loaned to Navy Depart- ment for printing, 380. CHECKAGES: Lost property, 788, 1223. Pay— Of deserter for amount of reward, unauthorized, 1064. Of naval estabUshment; court-martial sentence re- quired, or statutory authority, 1004. Of officer in arrears, 1072. Prescribed by statute; jurisdiction of accounting officers, 233. CHECKS: Amount less than one dollar; punishment for drawing and issuing, 1337. Certified, accepted in lieu of bond or written guaranty, naval contracts, 1298. Duplicates issued for lost or stolen, 1098, 1099. Larceny of, 1350. Lost — Or stolen, allowance to owner, 274. Suits for, 236. Outstanding — More than three years, 276-278. Report of, 279, 1417. CHEESE: Navy; contracts may be made for longer periods than one year, 1113. purchases without advertising, 1113. CHIEF BOATSWAINS: See Commissioned w arrant officers. CHIEF CARPENTERS: See Commissioned warrant officers. CHIEF CLERKS: Construed to mean statutory position only, 213. Duties of, 209. Held to be clerks, 206. Oaths administered by, accounts for travel, appoint- ments, etc., 1215, 1386. CHIEF CONSTRUCTOR: Appointment of, 378, 1222. Assistant, detailed from Construction Corps, 1418. Title of: Chief of Bureau of Construction and Repair, 670,671. CHIEF GUNNTIRS: See Commissioned warrant officers. CHIEF MACHINISTS: See Commissioned warrant officers. CHIEF NURSES: Na^-y Nurse Corps, female, 1303, 1304. CHIEF OF NAV.AL OPERATIONS: Allowances same as general in Army, 1512. Rank and title; pay; orders; assistants; retirement, 1418. Succession to duties of Secretary of the Navy, 1401. Tenure; appointment; duties, 1401. CHIEF PAY CLERKS: See Commissioned warrant officers. Grade established; pay, etc., 1406, 1407. CHIEF PHAJaaUACISTS: See Commissioned warrant officers. Numberandappolntmentof,etc.,1419, 1420. CHIEF SAILMAKERS: See Commissioned warrant officers. CHIEFS OF BUREAUS: See Bureaus; Chief Constructor; Engineer in Chief ^ Chief of Naval Operations; Judge Advocate General'. Paymaster General; Surgeon General. Absence of, 213, 214, 364, 466, 1222, 1224, 1261, 1280, 1284, 1418. Allowances, same as Army, 1512. Appeals to head of department from decisions of, 362. Appointing power exercised by, 207. 1583 IXDEX. CHIEFS OF BUREAUS— Continued. Appointments, how made, 362-364, 378. recess of Senate, 99. Assistants, 362. authority of, 213-214. Construction and Repair, 1418. Engineering, 1284. Judge .Vdvocate (leneral, 1418. MeIENT-Oontinucd. Appropriations not to l)e exceeded, IKsO. Attorneys for claimants, etc.; punishment of em- ployees accepting fees as, 13:52, 1333. former employees not to act against United States, 224. not to lie employed by heads of departments, 221. Cash rewards for suggested improvements, 1514. Changes in grades of clerks, 20.3, 1180. Chief clerks: oaths administered by, 121.'), 1386. to supervise, etc., 209. Chiefs of iHireaus, Na\-y Department, not part of, 365. of divisions are clerks, 203. Civil engineers not part of, 532. Claims against United States; oflScers, etc., interested in, 1332. Classification of employees in departments, 202. Classified ser\ice; examinations for employment at navy yards, 780. Clerks held to be officers, 90. Clerkships open to women, 202, l.i20, l.'i26. Compensation for injuries, etc., 1467-1469. from private parties to employees, restricted, 1470 . Congress may be furnished information by, 13S8. Contagious disease in family: leave granted, 1221. Contingent apjjropriations not available for, without specific authority, liss. Contracts for services to be made after advertising for proposals, 1109. Contributions for political purposes, 340, 341, 783, 1180, 1181, 13.34, 1335. presents to superiors, 1073. Demotions, 1383, 1388. Details from Government Printing Office to executive departments, 1359, 1360. from outside of District of Columbia; restrictions on, 1188, 1290, 1291, 1384. to other departments, disbursing clerks, 212. Detectives: employment of, restricted, 1220. Disability; retirement for, 1538, 1539. Disbursing agents: buildings under construction, 261. clerk detailed to another department, 212. executive departments, appointment, etc., 209. temporarOy absent; substitute, 1315, 1316. Discharge, 338. inefficiency; rules governing, 1383. injunction to prevent, 99. preference in retention, 1180. procedure governing, 1388. Distribution of clerks, temporary details within department, 203. Efficiency experts; restrictions on employment of, 1394. ratings, 1383. Kight-hour law, requirements for Govenunent work, 1117, 1219, 1220, 1370, 1371, 1474. Employment of personal services in excess of appro- priations, restricted, 1104, IISO, 1188, 1384, 1409. in connection with unauthorized boards, commis- sions, etc., 1105, 1316. Estimate official to be designated in each department, 1391, 1392. for civil employees paid from naval appropriations, 1194. Enticing workmen from arsenals, etc., 1327. Examinations for ajjpointment, 202. for employment, navy yards, 780. Extra duties; additional pay restricted, 217, 1066-1071 General provisions relating to, 189-228, 334-341, 1065- 1073. Grades and number of clerks; changes in, 203, 1180. CIVIL ESTABLISHMENT -rontinucd. Head of department can not abolish positions, 212. Holidays, 201,781,782. allowed per diem employees, 1194, 1198. days declared to be, 1224. excluded from leave of absence, employees in departments, 12G3. Honorably discharged soldiers and sailors preferred, 1065, 1180, 1383, 1.324, 1526. Hours of labor; executive departments, 1220, 1221. Government laborers, workmen, and mechanics, 1117, 1219, 1220, 1.370, 1371, 1474. suspension of work by Executive order, 782. Impersonation of officer or employee, 1323. Incompatible offices, defined, 1069. Increasing munber of lower grade and reducing number of higher grade, 203, 1180. Inefficient employees; report to Tongress in annual estimates, 1204. Influencing legislation; services not to l)e used for purpose of, 1,527. Insular possessions: pay of employees while in transit, 1278. sale of stores to, 1313, 1314. travel of employees to and from, 782. Investigation of alleged misconduct, etc., 217. Lump sum - Appropriations; explanations to accompany esti- mates, 138"), 1386. restrictions on employment from funds for new ships, 1281. Employees, 336. drafting, technical and inspection force, Ul**, 1419. navy yards and stations; number and rates of pay fixed by Secretary, 1312, 1313. restrictions on pay of, 1389, 1398, 1491, 1492, 1503. on salaries and transfers, etc., 1389. specific authorization required for, 1307. Married women; wives of soldiers and sailors, 1520, 1526. Medical attendance furnished, 459. Members of Congress; right to communicate v ith, individually or collectively, 1388. Misconduct; investigation of, 340. Naval Home; employment of beneficiaries, 1294. Naval officer not eligible to hold civil office in Navy Department, 389. Naval Reserve Force eligible for office in, 1446. not to perform duties of character performed liy, 1528. Navy; annual report concerning mechanics and laborers, 381. Navy Department: clerks and employees; number and compensation, etc., 334-341. Navy yards and stations, appointment of master workmen, 779, 780. boards to report upon repairs to vessels, 776,777. laborers: employment of, 780. mandamus against board of labor employment, 780. naval officers not to be appointed to positions, 779, 780. number and pay fixed by Secretary, 1312, 1313. offices may be abolished, 533. Number and grades of employees; changes in, 203, 1180. and pay of employees, 1104, 1180, 1384, 1409. to be in accordance with specific appropria- tions, 1188. of employees in departments, 205. disbursing clerk not appropriated for, 211. 1586 INDEX. CIVIL, ESTABLISHMENT Continued. Number of employees in departments; extra clerks during sessions of Congress, 208. penalty for violating law relating to, 13S4. Oath— Of oflTice, 337, 338, 1065, 1006. administered by chief clerks, 1215. To accounts, etc., administered by chief clerks and designated employees, 13S0. OfiBcer includes employee, 413. Offices at navy yards may be abolished, 533. can not be abolished without statutory authority, 204. Official Register of the United States; data contained in, 1235, 1236. PoUtical— Considerations in employment of laborers at navy yards, 780. Contributions, 783. constitutionaUty of statutes relating to, 340, 341. forbidden, 1180, 1181. soliciting, giving, etc.; punishment, 1334, 1335. Opinion not ground for discharge, 783. Positions can not be abolished without statutory au- thority, 204. Preference for employment, navy yards and stations, 780, 1313. honorably discharged sailors, etc., 338, 780, 1065. 1180, 1383, 1524, 1526, 1530. in appointment; wives of disabled soldiers, etc., 1526. in retention of honorably discharged soldiers and sailors, and widows and orphans of, 1180. of persons disabled in miUtary service, 1065. Presents to superiors prohibited, 1073. Professors and instructors at Naval Academy; number and compensation, 701, 1457, 1535. Promotions; efficiency ratings, etc., 1383. . jurisdiction of accounting officers, 242. Reducing clerks of higher grade, and increasing num- ber in lower grade, IISO. Reduction of force; preference in retention, 338, 1180, 138;3. Register of employees; data required for biennial, 228, 1235, 1236. Reinstatement — After service in National Guard and Medical Re. serve Corps, Army, 14G4. in Officers' Reserve Corps, 1476. in war with Germany, 1530. Of employees honorably discharged from military service, 1524. transferred to Census Office, 1526. service credited for retirement, 1541. Removal from office, 99, 338, 1180, 138:3, 1388. Reports — By heads of departments in cormection with re- tirement, 1542, 1543. To be submitted annually to Congress concerning, 227. To Congress of clerks, etc., employed from naval appropriations, 1194. Retired officers; appointments in, 337. Retirement; general provisions, 15:56-1543. Right to petition Congress, or members thereof, or to furnish information, 1388. Sale of Marine Corps stores to, 1391. Soldiers and sailors- Discharged, preferred for appointment, and reten- tion, 1180, 1383, 1526. CIVIL ESTABLISHMENT-Continued. Soldiers and sailors — Continued Honorably discharged — From war with Clermany; reinstatement, 1530. Preference, 338, 1524. Preferred for appointment, 780, 1065. Wives of, 1180, 1520, 1526. Soliciting contributions for political purposes, 1334, 1335. for presents to superiors prohibited, 1073. Subsistence for travel outside District of Columbia, 1394. Per diem for travel outside District of Columbia, 1398, 1399. Substitute clerk, regular employee on leave, 207. Simdays excluded from leave of absence, employees in departments, 1263. Suspension of employees, 340, 783. Temporary clerks, compensation of, 205. employees: sessions of Congress, 208, 341. vacancy, head of department or bureau; how filled, 212-217. Transfer of employees between bureaus; explanation in estimates, 1290. between departments and independent establish- ments, 1290, 1389, 1491. to Census Office; reinstatement, 1526. Transportation of, and families, in Army transports, 1298. Travel to points outside the District of Columbia, 1305, 1394, 1398, 1399. Two offices; restriction on double salaries, 10G6-1071. Unauthorized employment prohibited, 1180. office; no salary for, 1066. Witnesses in court; actual expenses allowed, 413. Women; employment of, 202, 1520, 1526. CIVILIAN MARKSMANSHIP: Director of; appointment of Marine officer as, 1465. CIVILIANS: Arrest of by miUtary authority, 57, 1387, 1478. Court-martial jurisdiction, 62, 63, 973, 974. CIVIL SERVICE: See Civil Establishment. Commission, not an executive department, 225. Efficiency ratings; promotions, demotions and dismiss- als; preference, etc., 338, 1383. Examinations, 202. CIVIL WAR: Lost discharge; certificate in lieu of, 1203, 1204. Removal of charge of desertion; issuance of discharge certificates, etc., 1200, 1201, 1272. Retirement of officers who served during, 968, 1266, 1282, 1293, 1312. CLAIMS: See Accounting offlcers; Court of Claims; Mistake of fact; Mistake of law. Accounting offlcers — AUowance of, report to Congress, 1182. Jurisdiction; statute of limitations, 1182. Appropriation for payment exhausted; report of to Congress, 1182. Approval by head of department ; effect of, 242, 243, 244. by Secretary of the Navy, 272. Assignment of, against United States, 1093. Attorneys- Fees not to be deducted by accounting officers, naval cases, 1272. Prosecuting; notaries pubUc may act before de- partments, 1295. restrictions on, 224, 1093, 1332, 1333. 1587 IXDEX. CLAIMS— (out imicd. Collision, naval vessels — Adjustment of, i:iri8, 1359. Suit in foreign country, 223. Compensation for seizure of vessels belonging to alien enemies, 1477. Counsel to be furnished departments investigating, 364. Court of Claims, suits against United States, 1362. • Damages by Amercan forces abroad; settlement of, l.")04. by naval forces abroad; settlement of, 1508. caused by naval aircraft; settlement of; report to ■ Congress, 1545. naval personnel; adjustment of, 1527. naval vessels, settlement of, 1358, 1359. Deceased personnel, Navy and Marine Corps; payment of money due, 1305, 1306. Definition of "claim or matter," 1363. District courts to have jurisdiction of suits agaiiist United Stales, 1361, 1362. EfTects lost in naval service, 271, 1492-1494. Enlisted men; ellects lost on vessels; permanent appro- priation for payment, 1106. Equitable; accounting oflRcers' jurisdiction, 235. Executive departments may refer to Coiut of Claims, i:563, 1.364. Form of; lost or damaged property, naval personnel, 1493. Fraudulent, 1324. for wages, etc., 1323. Heads of departments not authorized to submit esti- mates for payment of, 235. Legal assistance required by departmental investiga- tion, 220. Lost or damaged property; reimbursement of naval personnel, 271, 1492-1494. Mandamus proceedings to compel payment, 256-257. Merger of in check, 277. Naval pension fund; estimates of, 1103. Oath administered to, for travel and other expenses, 1386. to be taken by persons prosecuting against United States, 1093. Offenses connected with; punishment. Navy, 990, 991. Officers, employees, etc., interested, against United States, 1332. Payment upon warrants, 276. Prosecution by former Government employees, 224. of, against United States; oath to be taken, 1093. notaries public not disqualified, 1295. public officers forbidden to accept compensa- tion, 1332, 1333. Reopening of accoimts; decisions relating to, 248-256. Report to Congress of those allowed, 1193. when allowed under exhausted appropriations, 1182. Security accepted by Government, 231. Set off; jiurisdiction of accounting officers, 244-246. Settlement of by Treasiu'y Department, 229. from private funds, 231. Statute of limitations; checks outstanding more than three years, 277. Suit by United States to recover from delinquent officer, 1072. Tortious conduct of public officers; adjustment, 1359. Travel, approval by Secretary of the Navy, 237, 238. shortest usually traveled route; Secretary of Navy to determine, 1315. Unliquidated; jurisdiction of accounting officers, 234. CLAIMS— Continued. Witnesses subpcrnaed to testify before departments, 219, 220. CLASSIFICATION: Clerks, 202. Naval vessels, 772, 1277. CLASSIFIED SERVICE: Examinations for employment at navy yards, 780. CLEMENCY: Members of naval court-martial may recommend, 1034. Mitigation of court-martial sentences, 85. CLERKS: See Civil Establishment; Pay of Civil Establishment; Pay of Naval Establishment. Allowance of, to officers at sea; civilians not appointed, 1182. Classification of, rates of pay, 204. Clerk of the yard, office may be abolished by Secre- tary of the Na\'y, 533. Commandant's; office may be abolished by Secretary of the Navy, 533. Construed to include chiefs of divisions, chief clerks, and disbursing clerks, 203, 206. Defined; includes an employee, 413. Naval Constructor's; office may be abolished by Sec- retary of the Navy, 533. Naval officers detailed as, at sea, 1182. Paymaster's : not part of Supply Corps, 470. subject to court-martial, 62. Storekeeper's; office may be abolished by Secretary ofthe Navy, 533. CLOTHING: Advertising for proposals, 1111. Bounty, enlisted men. Navy, 876, 877. Condemned; proceeds of sales available for expendi- ture, 1108. Discharged naval prisoners, 1313. as undesirable, etc., 1107. Gratuity, Naval Reserve Force; not checked on temporary appointment to Navy, 1510. Lost on vessels; reimbursement for, 271, 1106, 1492-1494. Marine Corps- Appropriation available for purchase of uniforms, etc., to be sold at cost, 1531. for reimbursing claimants for lost clothing, etc., 1493. Midshipmen, procurement of, 770. Naval prisoners furnished on discharge, 1310, 1311. Outfit- On enlistment; payment of cost by minor dis- charged for fraudulent enlistment, 1402, 1403. On first enlistment, 1203. On second enlistment, 1403. Refund of. Naval Reserve Force, on discharge, 1444, 1447. Navy, on discharge, 1292, 1294, 1298, 1402, 1403. Purchase of in excess of appropriations, 1116, 1288. Navy, contrary to law, 1324, 1325. Sale of— At cost, to officers of the Navy and Marine Corps and midshipmen, 1521, 1531. Prohibited, 1121. Unlawfully selling, stealing, etc., 990. CLOTHING AND SMALL STORES FUND: Created for Navy, 1204, 1280. COAL: See Contracts; Fuel. Alaskan; preference right to purchase for Army and Navy, 1307. use of for Navy, etc., 1400. Mining in Alaska, for Navy, 1547, 1548. 1588 INDEX. COAL— Continued. Transportation for Navy, American vessels, 1283. in Alaska, 1393, 1394. COAL DEPOTS: Establishment of for Navy, 789. COAL, PASSER: Rating changed to fireman third-class, 1423. COAST AXD GEODETIC SURVEY: Commissioned officers eligible for membership on naval courts-martial, 1494. Employment of naval officers in surveying the coast, 1151. Expenses defrayed from naval appropriations, 1479. General provisions relating to, 262. Laws and regulations of Navy applicable to, 1479, 1480. Naval officers detailed to; subsistence, 121-5. Regulations to be prescribed by Secretaries of War, Navy, and Commerce, 14S0. Service credited for longevity pay in Xa\-y, Marine Corps, etc., 1535. Transfer to Xa^■y during war or emergency; status and rank of personnel, 1479, 1480. Vessels of, and those of Fish Commission, to have same relation to Navy Department, 11S6. COAST DEFENSE RESERVE: General provisions relating to, 14.>?, 1454. COASTERS HARBOR ISLAND: Quarters for personnel, training force, 1248. COAST GUARD: Commissioned officers eligible for membership on naval courts-martial, 1494. Cooperation with the Navy, 1091. Duties, 1456. Enlisted men appointed to Naval Academy, 743. serving with Navy, are enhsted men of the Navy, 539. Established: service with Navy; expenses, etc., 1400. Expenses of, when cooperating with Na^'y, 1091, 1400, 14.56. Instruction at aviation schools of the Navy, 14.56. Laws to which subject; jurisdiction, 1455. Military command by and over, 1400. Navy defined to include, 1524. Part of the Na\'y. rank when ser\-ing as, 705. Precedence with naval officers, 14.56. Rank of officers with relation to the Na^'J% 705. Reimbursement for lost or damaged clothing, 1493. 1494. Sale of naval suppUes to personnel of, 15.33. uniforms, etc., to, at cost, while operating with Navy, 1521. Secretary of the Navy to direct when ordered by the President, 1091. Service credited to naval personnel for pay and retire- ment, 1535, 1550. in, not naval service, 588. Status; part of the Navy, 706. Titles of officers, 705, 1553. Transfer of officers to permanent Navy, 1549, 1550 COHABITATION: Male person with more than one woman, 1354 COLLATERAL: Authority of pubUc officers to accept, 231. COLLECTOR OF CUSTOMS: Inspection of naval vessels, 260. COLLEGES: Detail of naval officers to, 435, 1184, 118.5, 1247 1248 COLLISIONS: Claims against naval vessels; adjustment of, 1358, 1359. unhquidated; jurisdiction of heads of departments 2.34-235. Naval vessel in foreign waters, suit for, 223. COLLISIONS— Continued. Rules — For preventing; certain inland waters, 1240-1246. Great Lakes, etc., 1240-; 246. harbors, rivers, and inland waters, except Great Lakes and Red River of the North, etc., 1251-1261. international; high seas, 1204-1215. motor boats, 13.56-1358. Red River of the North and rivers emptying into Gulf of Mexico, 112.5, 113.5, 1246, 1247. Governing regattas or marine parades, 1300, 1301. Vessels; duty of master; penalty, 1215, 1216. COLONELS: Appointment of major general commandant from rank of, 1460. Captains, Na\-y, rank with, 662. Number of, Marine Corps, 1458. Senior staff officers counted as, in making computa- tions, Marine Corps, 1460. COLORS: See Flags. Gifts to naval vessels; acceptance and care of, 1305. COMBINATIONS: Against commanding officers. Navy, 984. COaOLVND: .\bsence from without leave; punishment, Navy, 988. Army and Marine Corps, 1.544, 1.545. and Na^'y, joint forces, 443, 444, 668. Coast Guard and naval vessels; President to direct,1400. Commissioned warrant officers. 1267. Constniction officers may exercise in the line or other staff corps, 508. Consular officers; jurisdiction over military authorities, 576. Courts can not exercise, 621. Crew of wrecked or lost vessel, 996. Hospital ships; medical officers, 703. validity of regulations, 785. Line officers detailed to duty under staff officers, 1359. Naval Reserve Force — and regular Navy; precedence, 1511. Restrictions on, 1511. Naval AuxiUary Reser\-e, 14-53. Naval vessels, 772-774. and squadrons; rules governing assignment to, 1277. how officered and manned, 775. marine officer ineligible, 955. President's power; limitation by Congress, 578. Questions of, are military questions, 932. Retired officers assigned to, in time of war, 659. withdrawn from, 654, 655. Staff officers; effeot of relative rank, 702. rank not to confer, 1265. Succession to; line officer detailed to engineering duty, 1435. Warrant officers and commissioned warrant officers, 1267. C030IANDANT: See Major general commandant . Clerks of, not officers or enlisted men, 534. office may be aboUshed by Secretary of the Navy, 533. pay, 794, 806. service not miUtary, 588. status, 903, 904, 953. Mare Island Navy Yard; pay of, 1177. Marme Corps, 928, 1392, 1460. Naval station; duty of example and correction, 978,979. general courts-martial convened by, 1310. 1589 INDEX. COMMAXDAXT— Continued. N'aval station; superintendent of Naval Observatory held to be, 391. Navy yards — and stations; construction onTiccr not eligible for duty as, 507. deck courts may be ordered by, 1308. general courts-martial convened by, 1442. oaths administered by, 1240. Line officer detailed as, 779. Mare Island, pay, 815. Marine ofTicer ineUgible, 955. C030IANDEERING: See Condcmnalion. Coal in Alaska for Army and Navy, 1307. Factories, vessels, etc., during war, 1475, 1476. Merchant vessels for use as transports or cruisers, 1218. Ocean mail vessels for use as transports or cruisers, 1217. SuppUes in time of war, 1413. Vessels for naval purposes, 1467. COMMANDER IX CHIEF: Fleet or squadron; general courts-martial may be con- vened by, 1310. rank authorized, 1481. Oaths may be administered by for purposes of naval administration, 1240. President's power,. 81-83, 773. can not be restricted by Congress, 58, 59, 81, 578. restricted by Congress; appropriations, 954. President to assign command of naval vessels and squadrons, 772, 775, 1277. Secretary of the Navy executes orders of President, 342. Subordinate can not be made independent of Presi- dent, 82. C01M3I ANDERS: Number in staff corps, 1427, 1428. Pay, 791, 798, 1301, 1302. Promotion by selection to; in staff corps, 1513. in line of Navy, 1430. Proportion of in line, 1425. Rank with lieutenant colonels, 662. Retirement of, for purpose of creating vacancies, 1265. COMMANDING OFFICERS: See Articles for the government of the Navy. Absence from command; power to convene courts- martial during, 1015. Acquittal by court-martial not a bar to suit against, for damages, 1049. Acting; punishments inflicted by, 1005. Aid or executive of, 669. Assignment of wages by enlisted men; power of attor- ney attested by, 892. BattaUons; summary court-martial ordered by, 1441. Brigade; general courts-martial convened by, 1442. summary courts-martial ordered by, 1441. Civil liability for abuse of power, 1003. Combinations against, Navy, 984. Consular powers may be exercised by, 575. Disbursements made by order of, 266. Discouraging crews from selling wages, etc., 573. Discretion, 1003. Divisions; general courts-martial convened by, 1442. Duty to send men to the United States on expiration of enlistments, 555, .5.56. Empowered by Sec-retary of the Navy to order courts- martial, 1441, 1442. Fleets; rank of admiral and vice admiral authorized, 1481. Flotilla; general courts-martial convened by, 1442. Foreign stations; examining and retiring boards con- vened by, 1472. COrMANDING OFFICERS— Continued. Granting of honorable discharges by, 573. Hospital or hospital ship; may convene courts and inflict punishments, 1441. Leave of absence and liberty granted by, 574. Marine Corps; deck courts ordered by, 1308. Marriages not to be performed by, 575. Naval vessel; authority over all persons on board, 1442. deck courts may be ordered by, 1 308. duties of, 995, 9%. or station; duty of example and correction , 978,979. oaths administered by, 1240. niles to be obeyed by, 995, 9%. Not required to act as paymaster, 574. Powers of attorney attested by; assignment of wages, 573. Precedence, 669. retired officer commanding squadron, 660. Piuiislmients by, 119, 1002, 1441. by; duty to correct subordinates, 978, 979. of; for offenses, 996. Rank of flag officer, 576. Recommendation of warrant officers for appointment as ensigns, 1277. Regiment; summary courts-martial ordered by, 1 141, Reports required to be made to Secretary of the Navy. 995. Separate or detached command; summary courts- martial ordered by, 1441. Short allowance of rations; report to Navy Depart- ment, 901. Squadrons; general courts-martial convened by, 1442. Staff officers communicate directly with, 670. Summarj' courts-martial ordered by, 1441. COMMERCE: Detail of naval officers to foreign countries in interest of, 576. COMMERCE AND NAVIGATION: General provisions relating to, 112.5-1131. COMMISSARY: Fimd, midshipmen's, 771. Officer, commutation of rations paid to, 1279. COMMISSION: See Appointments; Date; Precedence. Advancement in rank without change in grade, 102, 682, 1368. Brevet, Marine Corps, 931-933. Date of, 103. defined, 668. fictitious date, 669. is date stated in, 652. midshipmen on graduation, 1479. precedence determined by, 1390. Coast Guard and Navy, 14.56. dental officers, 1421. line officers, 668. Naval Reserve Force, 1511. staff officers, 1429. promotion, officers. Navy, 1390. Date stated in; conclusive upon accounting officers, 238. pay, officers graduated from Naval Academy, 1221, 1222. retired officer, 912. Fine arts; duties, etc., 1559, 1560. Decisions relating to, 102, 103. Errors in, 685. corrected, 103. issuing; nail and void, 103. jurisdiction of courts to correct, 834, 835. Expenses of commissions and inquiries not to be al- lowed, without special appropriation, 1105, 1316. 1590 IXDEX. COMIVIISSION— Continued. Fine arts; duties, etc., 1559, 1560. Form of, 1248. recess appointment, 217. Governors of Guam and Tutuila, 102. Midshipmen on graduation; date of, 1479. Naval Reserve Force, 1444, 1451. Naval vessels kept in conxmission in time of peace, 774. stricken from register; status of, 779. Navy Department to prepare, record, and affix seal to, 1248. Numbering of, for precedence purposes, 669. Passed assistant surgeons to have, 1251. Pay on promotion from date stated in, 830-832. President's duty to issue, 102. President to sign before department seal annexed, 1248. Retired officers advanced in rank, 1368. Revocation of recess appointment, 100. Seal of department affixed to, 1248. Senate adjourned; officers previously confirmed, 1072. Signature of President required before departmental seal annexed, 1248. Signed by Secretary of the Navy, 102. Staff officers; titles and grades contained in, 680. Testimony taken by, 421. authority to require production of records, 423. chiefs of bureaus as witnesses, 424. for Court of Claims, 1364. Unauthorized commissions and inquiries; expenses of not payable, 1105, 1316. Withholding; after confirmation, 102. officer appointed to higher grade, 652. CO>13iISSIONED OFFICERS: See Line offlcers; Officers of the Marine Corps; Officers of the Navy; Retired officers; Staff officers. Defined to include warrant officers, 1496. Warrant officers are not, 511. COMMISSIOXED WARR.WT OFFICERS: Appointed to higher grades for war service, 1550. may revert to former status, 1550, 1551. Chief warrant officers designated as, 512. Command, right of, 1267. Ensigns appointed from, 1314. Pay— And allowances, 803, 1267, 1429, 1430. of lieutenant (junior grade) and lieutenant; creditable records, 1429, 1430. not reduced by act of August 29, 1916, 1437. Quarters, 1267. Rank, 1267, 1314, Retired; active duty; pay, 914. creditable records, etc., 1503, 1504. increased by, 913. Warrant officers promoted to, 510, 1266, 1267, 1282, 1314, 1406, 1407, 1419, 1420. C03IMISSI0NER OF PATENTS: Departments interested to have representative before, 1251. Inventions may be ordered kept secret during war, 1494. Withholding of patent during war, 1501. COMMISSIONER OF PENSIONS: Duties of, 390. Jurisdiction — Of, and Secretary of the Navy, 1155. Retirement of ci\al employees, 1538. COMMITMENT: Insane personnel. Navy, to hospitals, 788, 789. COMMITTEE: Insane persons; pensions not payabe to, 789. COMMODORE: Grade abolished on the active list, 447, 663, 664. Omitted from grades of line officers, 1264. Pay, 791, 798, 1301. retired list, 1307. Rank- Changed to rear admiral, 375, 672. Retired staff officers, 085. With brigadier generals, 662. Retirement of, 1265. with rank of, 374, 375, 1265, 1266. COMMUTATION: Artificial limbs, 1156, 1157, 1217. Defined, 902, 953, 954. is an allowance and not pay, 953. emolument, 892. is compensation, 701, 702. not pay proper, 702. reimbursement, 702. salary, 702. Forage; Marine Corps, not aUowed, 1194. naval officers not aUowed, 1267. Nurse Corps (female) allowed, 1482. Quarters, 697, 702. agreement for exchange of quarters; unauthorized, 702. amount of, 942 943. application for quarters, necessity of, 702. arrest; officer undergoing trial by court-martial or civil authorities, 700, 701. duty without troops; definition of, 702. educational institution; officer detailed to, 701. home, officer waiting orders or performing duty at, 700. mates, same as second lieutenants, 697, 827, 1275. officer attached to vessel, 699. interned in neutral coimtry, 892. retired officers detailed to educational institu- tions, 440. Secretary of Navy to determine when public quarters not available, 1514. temporarily absent from station, 701. waiting orders, 700. warrant officers, same as second lieutenants, 697, 827, 1275. Rations, 893. aUowed enlisted men and naval cadets (midship- men), 1194. amount of, 901, 902. court-martial prisoners, 898. Nurse Corps, female, 807, 808. officers attached to seagoing vessel, 893-895. payment to commissary officer, 902. to messes, 1279. public money, 232. Sentence — Court-martial; definition of; mitigation distin- guished, 85, 1054. President's power, 1053-1054. Deck court, 1308. General court-martial, 1051-1055. Offlcers dismissed in commutation of sentence, 441 Summary court-martial, 1009. Specific statutory authority required for payment of, 950. Tickets; payment for in advance of travel, 1282. COMPANIES: Marine Corps, 936. COMPENSATION : See Effects; Pay of Civil Esiablishmerti; Pay of Navai Establishment; Veteranx; War Risk Act. 1591 INDEX. COMPENSATION— Continued. Defined; quarters, heal and lipht, commutation: in- cluded, 701, 702. COMPKTITIVE EX.\MIN.\TIONS: Appointments depondinj; on results, 94. Assistant surgeons; requirement held illegal, 465, 466. Candidates for machinist in Navy, r2<'>s, 1269. Enlisted men for appointment as midshipmen, 1472, 1473. Marine Corps; to determine precedence, 1462. Promotion; not authorized, 685. Warrant officers for appointment as ensign, 1277. COMPLIMENTS: Public documents not to be distributed with, 1236. COMPTROLLER OF THE TREASURY: See Accounting officers. COMPUTATIONS: Marine Corps; distribution in rank, 145S. final fractions, 920, 921, 1428. major general commandant counted as senior to colonel, 1459. senior staff officers counted as colonels, 1460. Navy; additional niunbcrs excluded, 1429. disposition of final fractions, 1428, 1429. times for making, 1529. to determine niunber in each rank and grade, 1427. COMPUTING MACHINES: Sale to departments at exchange prices by General Supply Committee, 1557. CONCEAL: Definition of, 790. CONCURRENT JURISDICTION: Courts-martial and civil courts, 1001. CONDEMNATION: See Commandeering. Lands — Expense of suit; appropriation available, 295. For military piUTioses, 1490, 1491. For public buildings, etc., 1199. Title to and jurisdiction over, 284, 285. Timber, material, supplies, etc., for the Navy, 1518. CONDITIONAL: Pardon, 86. CONDUCT: Commanding oflJcers to inspect conduct of subordi- nates, 978, 979. Eminent and conspicuous, marine officer, 933. Enlisted men in battle; reward for, 1275. In battle; advancement of naval officer for, 453, 454, 734-736. thanks of Congress for; advancement to higher grade, 736. Retainer pay, Naval Reserve Force, increased for good- conduct marks, 1450. Scandalous; punishment for, Na\'y, 998. To the prejudice of good order and discipline, 1000. Unbecoming an officer and a gentleman, 625, 998-1000. CONFESSION: Evidence of, 123. CONFIDENTIAL: Books, plans, etc.; punishment for losing, 1483. Information; departments not required to furnish. Court of Claims, 221. Plans; filing of in returns office, 397. Records of departments, 194. CONFINEMENT: Acting commanding officer may inflict as punish- ment, 1005. Commanding officer may inflict as punishment, 1002. Deck courts may adjudge; limited, 1308. CONFINEMENT— Continued. Naval officer under arrest to confine himself to certain limits, 1029. On bread and water; commanding officer may inflict. 1002. summary court-martial may adjudge, 100(i. Solitary; summary court-martial may adjudge, 1006. Witnesses, to insure appearance, 425, 426. CONFIRMATION: See Appointment; Sentences. Court-martial sentence, before execution, 1036-1051 . Ineligible; effect of, 96. Naval Reserve Force; requirements, 1444, 144."), 1452, 1453, 14,54. Senate, appointments; constitutional provisions relat- ing to, 89. assent to appointment indirectly given, 96, 652. CONFISCATION: Enemy property, 40. CONFLICT: Highly distinguished conduct in conflict with enemy; thanks of Congress, 736. Of laws; bonds, 490-491. CONFRONTING WITNESSES: Right of accused, 129, 131, 132. Waiver of right by accused, 132. CONGRESS: See Members of Congress; Senate; Senators. Accounting officers' action not binding on, 247. Appointments — And promotions; constitutionality of statutes, 647, 648,681. Can not control appointing power, 92. Can not exercise appointing power, 92. Can not require President to make, 767. May prescribe general qualifications, 95. Attorney General can not advise, 281. wiU not render opinions for information of, 303. Bills and resolutions; distribution to departments, 1238. Can not interfere with powers of President, 58. Command; can not interfere with President's power, 81, 578. restrictions upon President's power, 954. Constitutionality of statutes relating to retirement, 617. Correspondence with; penalty envelopes to be inclosed with letters from departments, 1191. Court-martial proceedings re\'iewed by, 1047. Extra clerks employed in departments during ses- sions of, 208. Influencing legislation: punishment of officers and employees violating law against, 1527. Joint committee on disposal of useless papers, execu- tive departments, 1202, 1203. Journals of; extracts evidence in court, 428. Medals of honor presented in name of, 1521. Pardoning power; general amnesty, 85. Pay of officers, power to change, 97, 910, 911. Petitioning: right of civil employees, 1388. President can not usurp powers of, 784. Rank and pay of officers may be reduced by, 97, 910, 911. Reducing number of officers in Army and Navy, 1011. Regulations, naval forces; delegation of power, 787. Removal of officers, 635. Retired officer; elegibility for, 643. Retirement of naval officers; cause of, can not be changed by statute, 620. Special act, designating appointee, held unconstitu- tional, 93. 1592 IXDEX. CONGRESS— Continued. Statutes enacted by; copies furnished departments, 1235. Temporary employees in office of Judge Advocate General during sessions of, 341. Thanks of— Marine officer advanced for receiving, 933. Officer promoted for receiving, 736. Officers receiving during CivU War, 594. may be advanced to rear admiral, 454. Retired officer recei^'ing, restored to active list, 660, 661. Witnesses before; protection of, 421. CONGRESSIONAL DIRECTORY: Printing and distribution of, 1235. CONGRESSIONAL, RECORD: Daily examination of to be made in departments, 1238. Navy Department and Naval Observatory furnished with, 1235. CONQUERED TERRITORY: Government of, 109. CONSCRIPTION: Power of Congress, 47, 70. CONSENT: Accused; does not confer jurisdiction, 125, 977, 1033. Enlistment of minors, 544, 545, 54.S-551. guardianship papers prepared by register of wiUs, D. C, 1217. Legislature of State; lands purchased by United States, 282. CONSIDERATIONS: Defined; appointment of laborers at navy yards, 780. CONSPICUOUS: Conduct in battle, advancement of officers for, 734-736, 933. CONSPIRACY: Fraud against United States, 990. Punishment for, 1324. Seditious, 1317. To commit offense agaiust United States, 1325. CONSTITUTION: Accused, waiver of privileges, 121. AppHcatioQ of, lo the Navy, 68. Attorney General authorized to construe, 321. History of, 27. Index to, 143-181. Military government provided for, 68. Statutes contrary to, 30, 95, 647, 648. Text of, 30-142. Whether applicable to Territories, 112. CONSTRUCTION: See Buildings; Statutes; Vessels of the Navy. CONSTRUCTION AND REPAIR; See Bureaus; Chief constructor; Chiefs of bureaus. CONSTRUCTION CORPS: See Naval constructors; Staff officers. Additional pay; services imder War Department, 507 Advancement in rank above lieutenant commander 1513. up to lieutenant commander, 1426. Appoiutments in to fill vacancies, 506, 1408, 1428. of officer as chief of bureau, 378, 1222. Assistant naval constructors; promotion of, 1266. to Chief of Bureau of Construction and Repair de- tailed from, 1418. Chief of Bureau of Construction and Repair, appoint- ment of, 378, 1222. Clerk of the naval constructor, office may be abolished, 533. Command in the Une or other staff corps, 508. CONSTRUCTION CORPS— Continued. Detail of officers — As aid or executive at navy yard, 508, 779. As commandant of navy yard, 507, 779. To duty under War Department, 507, 579. To inspect ocean mail vessels, 1216. To serve on boards concerning repairs to vessels, 776. Distribution of officers in grades, 1427, 1428. Duties of, 507-509, 1401. Number of officers authorized, 505, 1266, 1408, 1425. Pay, 505, 793, 802. Promotion of assistant naval constructors, 1266. Rank of officers in, 505, 677, 678, 1266. distribution, 1427. rear admiral authorized, 677. Transfer of ensigns to vacancies in, 1428. of line officers to, 1408. CONSTRUCTION OF STATUTES: See Statutes. General principles, 9-23. CONSTRUCTIVE: Pardon, 86, 573. CONSTRUCTIVE SERVICE: Credited to naval officers for pay purposes, 1268. to promoted officer; pay from date of rank, 838. Dental officers who have gained or lost numbers, 1421 . EnUsted men discharged three months prior to expi- ration of enlistment, 1449. Longevity pay, officers, Na\'y, based on, 821-823. Not credited to officers entering Na\'y after March 4. 1913; 1390. Precedence, 691, 694. CONSULAR: Courts; naval personnel tried by; counsel furnished, 224. trial of capital offenses by, 69. Officers; certificate required as to prevailing prices; purchase of foreign supplies, 1114. copies of records admissible in court, 429. jurisdiction of, and military authorities, 57G. Powers; commanding officers of Navy may exercise, 575. Service; naval officer appointed in, vacates office, 579. CONSULTATIONS: Medical officers of fleets and squadrons, 466. CONTAGIOUS DISEASES: See Disease. Civil employees granted leave because of, 1221. CONTE]\IPT: Court-martial witnesses; punishment, 1021, 1310. Courts of iaquiry may pimish, 1055. Of court; pardoning power, 84. public officer refusing to obey subpoena or to testify, 422, 424. Of superior officer, punishment for. Navy, 984. Witnesses in departmental investigations, 220. CONTINENTAL: Limits, United States; convening of courts-martial be- yond, 1310. shore duty beyond, 1275. CONTINGENT FUNDS: See A ppropriations; Estimates. Annual report of expenditures from, 226. Apportionment of — Between bureaus by heads of departments, 1384. To avoid deficiencies, 1104, 1105. Civil establishment not to be employed from, without specific authorization, 1105, 1188, 1384. Evidence of title; expense of obtaining, 283. Expenditures- Jurisdiction of accounting officers, 243. 1593 INDEX. CONTINGENT FUNDS— Continued. Expenditures— Continued . Restricted; written order of head of department required, 1105, 1106. Expenses of commissions and inciuiries not to be paid from, 1105. Navy Department; estimates, 385. Navy: expense of insane patients, 789. use of, 828. Official and clerical compensation not payable from, llfti, ll.>vS 1384. Purchases required to be made from, 1384. Restrictions on purchases from: newspapers, books, pe- riodicals, etc., 1073. of law books, books of reference, and periodicals, 1261. CONTINUING: Odense; desertion; decisions relating to, 1060, 1061. Pimishment; remission of, by reviewing authority, courts-martial, 1052, 1053. CONTINUOUS SERVICE: Certificates; issuance of, to enlisted men, 569. Pay; definition of, 8S6, 890. enlisted men, 8S3-891, 1529, 1530. under personnel act, 1269. CONTRABAND OF WAR: Purchase without advertising for Navy, 1113, 1114. CONTRACTS: Accounting officers; originals to be filed in offices of, 1118. to be notified of appointment of inspector, weigher and measurer of fuel, 1110. to revise settlements by Navy Department, 1111. Accounts of agents and contractorsto be rendered, 1111. paymaster on foreign station: consular certificate required as to prices, 1114. Advances of public money restricted, 1099, 1100. to contractors as work progresses, 1369. Advertising; bunting may be purchased in open market, 1115. by firms, corporations, etc., practicing before de- partments, 1411. copies of to be filed in returns office. Interior De- partment, Ills, 1119. for foreign supplies, 1114. for gim steel or armor for Navy, 1223. for proposals, 1109. by Secretary of the Navy, 1111. not required in emergencies, 1109. sale of useless papers on naval vessels, 1381. newspapers, 1123. for proposals, 1111. written authority required, 1124. not required for purchase of certain naval suppUes, 1113, 1114. material for steam boilers. Navy, 11S2. open market purchases and procurement of serv- ices, without, 1299. rates paid for, 11S4. District of Columbia, 11S7. sale of useless papers at na^-y yards and stations, 1401. tobacco for Navy, 1250. Agents and contractors to render accounts tor settle- ment, 1111. American articles preferred for Navy, 1115. bunting; purchase of, in open market, 1115. growth or manufacture preferred; hemp for Navy, 1115. CONTRACTS— Continued. American steel to be used in construction of naval vessels, 1195. Annual report to Congress of proposals submitted, 1 113. Appointment of inspector, weigher, and measurer of fuel, 1110. officers to make, for Navy, 1118, 1119. Appropriations — Available after fiscal year, 1107. Inadequate, 1116. Not to be exceeded, 1104, 1116, 1288, 1297, 1331. exceptions, 1288. Overobligated; butter and cheese for periods more than one year, 1113. public buildings and improvements, 1116. tobacco for four year periods, 1113. Armor or gun steel, Navy; advertising and competi- tion required, 1223. Arrest for ; marines exempt from, 935. Assignment of, unauthorized, 1117. Attorney General will not render opinions for infor- mation of contractors, 303. Attorneys for parties submitting bids may be present when opened, 1110. Authority of law required for making, 1288, 1297. Award of — Ry items, to lowest responsible bidder. Navy, 1390. Satisfactory security for performance required, 1111. Tobacco, Navy, according to samples, 1250. Tolowest bidder, 1111. for foreign supplies, 1114. Bidders; certified check accepted in lieu of written guaranty, 1298. f aiUiig to furnish required bond in specified time, 1112, 1113. lowest on each item awarded contract for Na\-y provisions, 1390. may be present at tests of steam boUers, 1182, 1183. must furnish satisfactory security for performance, nil. required to furnish guarantee with proposal, 1112; 1113. to submit samples of tobacco with proposals, 1250. Bids- Advertising required for foreign supplies, 1114. Competitors may inspect, 1114. Copies of, to be filed in Returns Office, Interior Department, 1118. Defaulters in previous contract rejected, 1114. Having nominal or fictitious prices not considered, 1114. Inspection of by parties, 1114. Lowest bidder t o furnish supplies and transporta- tion for Navy, 1111. Lowest to be awarded contract for foreign supplies, 1114. Manufactiu-er or regular dealer, 1114. More thau one by same party, in different names; all rejected, 1114. Not required for certain naval supplies, 1113. Obtained without advertising; material for steam boilers, 1182. Opened in presence of Secretary of the Navy and bureau chiefs; foreign supplies, 1114. Opening of, for naval contracts, 1111. in presence of parties, 1110, 1114. Rejected for specified causes, 1114. Shells and projectiles for Navy, 1395, 1396. 1594 INDEX. CONTRACTS— Continued . Bids— Continued . Time and place of opening to be communicated to parties, 1110. To be preserved and recorded, and reported an. nually to Congress, 1113. recorded at time of opening, 1110. Blank forms to be furnished officer making, 1119. Board of naval officers to inspect samples of tobacco, 1250. Bonds; certified check accepted in lieu of, 1298. contractors required to furnish, 1112, 1113. copartners not received as sureties for each other, 1114. defaulters in previous contracts not received as sureties, 1114. Liberty or other United States issues accepted in lieu of sureties, 1523, 1524. not required, where amount less than $500; 1299. one contractor not received as surety for another, 1114. suit against sureties for liquidated damages, 1113. sureties defaulting; subsequent bids by, rejected, 1114. Bread; baking of, under naval supervision, 1115. Buildings; site not to be purchased or contracted for without specific appropriation, 1116. Bunting, purchase in open market of American manu' facture, 1115. purchase without advertising, 1113. Bureau chiefs; contracts by, to be executed in foreign country, 1114. may reject bids for specified causes, 1114. to be present at opening of bids for foreign sup. plies, 1114. to furnish printed schedules to bidders, Navy, 1111. Butter; may be made for more than one year, 1113. purchase for Navy, 1115. without advertising, 1113. Cancellation by consent of Navy Department; pay- ment of reservation, 1115, 1116. during, war, 1475, 1476. terms relating to, are binding, 361. Certified check in lieu of bonds; naval supplies 1298. Changes in, 1197. during war, 1475, 1476. time of delivery, by consent of Navj' Department, 1115, 1116. Cheese; may be made for more than one year, 1113. purchase without advertising, 1113. Clothing; advertising for proposals, 1111. purchase of in excess of appropriations, 1116, 1288. Coal- In Alaska; preference right to purchase for Army and Navy, 1307. To beinspected and weighed before deUvery, 1110. To weigh 2,240 pounds to ton, 1110. Transportation of, by sea, American vessels, 1283 Commandeering coal in Alaska for Army and Navy, 1307. factories, etc., during war, 1475, 1476. merchant vessels for use as transports or cruisers, 1218. ocean mail vessels for use as transports orcruiseis 1217. supplies in t ime of war, 1413. vessels for naval purposes, 1467. Competing bidders have right to inspect bids, 1114. Confidential plans relating to; filing of in returns office, 397. CONTRACTS— Continued. Congress to be furnished annual report of proposals, 1113. Consular certificate required as to prevaiUng prices^ contracts for foreign suppUes, 1114. Contraband of war; purchase without advertising, 1113, 1114. Contractors — And agents to render accounts for settlement, 1111. Court-martial jurisdiction over, 62, 64. Defaulting; subsequent bids rejected, 1114. Name must appear on naval suppUcs, 1116. Not received as sureties for each other, 1114. PubUc property deUvered to, in part payment, 778. Receiver appointed; status of vessel under con- struction, 773. State interference with, 49. To protect laborers and material men, public works, 1227, 1228. Copartners not received as sureties for each other, 1114. Copies of, certified by returns office, evidence in court, 428. and of bids, proposals, advertisements, etc., to be filed in returns office, 397, 1118, 1119. for use in suits, 427, 428. furnished by returns office, 398. furnished laborers and material men on public works, 1227, 1228. Court-martial jurisdiction over contractors, 62, 64. Creditors entitled to sue for labor and material fur- nished, 1227, 1228. Damages; deUnquent bidder charged with difference in cost, 1112, 1113. delinquent contractor liable to, 1113. forfeiture of double contract price for nonperform- ance, 1111. Date of delivery to be communicated to prospective bidders, 1111. Dealers; bids submitted by persons who are not, 1114, furnished specifications for steam boilers, 1182. 1183. Defaulting principal or surety; subsequent bids of rejected, 1114. Deficiency in appropriation; naval suppUes may be piu^chased, 1116. Delay in completing deliveries; payment of reserva- tion, 1116. DeUnquency; forfeiture of double contract price, 1111. principal or surety; ground for rejecting subsequent bids, 1114. Delinquent bidder; failure to furnish required bond, 1112, 1113. contractor; liquidated damages, 1113. Delivery completed after time required; payment of reservation, 1115, 1116. of naval suppUes; date of, to be communicated to prospective bidders, 1111. of specified quantity shall be required by, 1114. payment of 10 per cent reservation, 1115, 1116. Desiccated vegetables; purchase of for Navy, 1115. Disbursing officers not allowed credit for payment for fuel without certificate, 1110, 1111. Dissolved by consent of Navy Department; payment of reservation, 1115, 1116. District of Columbia; fuel to be inspected, weighed, and measured before delivery, 1110. Domestic steel to be used in construction of naval vessels, 1195. Eight-hour law — Requirements for Government work, 1117, 1219, 1220. 54641°— 22- -101 1595 INDEX. COXTRACTS-Continued . Kight-hour law— Continued. Stipulations concerning, 1370, 1371. Suspension of, in national emergency, 1474. Emergency not permitting of adverti-sing for supplies or services, 1109. purchases abroad of war material, 1396. Enlistment; may be extended by Congress, 543. Envelopes for departments; Postmaster General to procure, 1259, 1240, 1291. Exceeding appropriations restricted, 1104, 1116, 1288, 1297, 1331. Excessive bids rejected, 1114. Executive departments; General Supply Committee to make, 1358. not to make for supplies for longer than one year, 1117. or bureau procuring services or supplies for another, 1536. Extension of; pa3rment of 10 per cent reservation, 1115, 1116. Fictitious or nominal prices in bids, 1114. Filing of in offices of accounting officers, 1118. Firms; members of not received as sureties for, 1114. Flour for Navy, 1115. Fodder, transportation in American vessels, 1283. Forage; purchase of in excess of appropriations, 1116, 1288. Foreign country, to be executed in, 1114. hemp; purchase of for Navy, 1115. stations; purchase of supplies for without adver- tising, 1113. steel not to be used in naval vessels, 1195. supplies; certificate of consul required as to pre- vaOing prices, 1114. United States articles preferred to, 1115. war material; purchase for Navy; duty, 1396, 1408. Forfeiture of double contract price for nonperformance, nil. of penalty by delinquent contractor, 1113. Form — Condition that Members of Congress not interested in, 1118. Eight-hour provision, 1370, 1371. Guarantee to accompany proposals, 1112, 1113. Printed blanks to be furnished officers making, 1119. Return for filing in returns office, 1119. Shall provide for a lien in favor of Government, 1369. require delivery of specified quantity, 1114. Written and signed, 1118, 1119. Fraudulent; duty of head of department, 352. Fuel- Departments; purchase in advance of appropria- tions, 1553. Secretary of Interior to make, 1507. Inspector, weigher, and measurer of, 1110. Navy; exceeding appropriations for, 1288. in District of Columbia, 1530. power of Secretary of the Navy as to purchase, 1115. Purchase of in excess of appropriations, 1116. Furniture for buildings; appropriation not to be ex- ceeded, 1116. General provisions relating to, 352, 353, 354, 1109-1119. General Supply Committee; duties, etc., 1.3.58. Guarantor charged with damages where bidder delin- quent, 1112, 1113. Guaranty; certified check accepted from bidders in lieu of, 1298. CONTRACTS— Continued . Guaranty; contractors required to furnish satisfac- tory security, 1111. required of bidders, to accompany proposals, 1112, 1113. Gunpowder purchased without advertising, 1113. Gun steel or armor. Navy; adverti.sing and competi- tion required, 1223. Head of department's duties respecting, 352. Hemp; American growth or manufacture preferred, 1115. Navy; advertising for proposals, 1111. Home growth or manufacture preferred for Navy, 1115. Hospital supplies; purchase of in excess of appropria- tions, 1116, 1288. Impairing obligation of, 76-77. Indexes of; kept by returns office, 398. Inspection of bids by parties, 1114. Inspectors of fuel, 1110. Instructions to be furnished officers appointed to make, 1119. Interested parties not to act as Government agents, 1326. Laborers and material men; protection of 1227, 1228. Land not to be purchased without a specific law authorizing, 1117. Law governing; official bonds, 490, 491. Lease of lands for use of Navy; improvements to be- come property of lessor, 1508. Liquidated damages- Forfeiture by delinquent contractor, 1113. of double contract price for non])erformance, nil. Lowest bidder; certain naval supplies not required to be purchased from, 1113, 1114. contracts awarded to by items, Navy, 1390. for foreign supplies shaU receive, 1114. tobacco for Navy purchased from bidder sub- mitting best sample, 1250. to furnish supplies and transportation for Navy, nil. Manufacturers — And regular dealers; persons qualified to bid, 1114. Furmshed specifications for steam boilers, 1182. Material men; protection of, 1227, 122S. Measurer of fuel wood, 1110. Meats, preserved; purchase of for Navy, 1115. Medical supplies- Procurement of, for fleets and squadrons, 466. Purchase of, in excess of appropriations, 1116, 1288. medicines without advertising, 1113. Members of Congress- Interested in; punishment, 1333, 1334. Not to have interest; stipulation in contract, 1118. Taking consideration for procuring, 1332, 1333. Name of contractor to appear on naval supplies, 1116. Naval; accounts to be rendered by contractors and agents, 1111. advertising not required for certain articles, 1113, 1114. annual report of bids and, 381. chief officer of department to make or direct, 1111. chiefs of bureaus to furnish printed schedules to bidders, nil. copies filed in returns office, 397. duties of bureaus respecting, 359, 360. general provisions relating to, 1111-1116. officers empowered to make, 1111. prohibited from private employment with certain contractors, 1250. petroleum reserves; development of, 1545. 1596 INDEX. CONTRACTS— Continued. Naval; purchases and contracts for supplies and serv- ices, 1111. supplies; purchase, 1216. and transportation; advertising for proposals, 1111. purchase in excess of appropriations permitted , 1116, 1288. supply account fund charged with cost of stores procured; adjustments made on outstanding contracts or orders, 1557. transportation in American vessels, 12S3. vessels; domestic steel to be used, 1195. general provisions, 1195-1197. Navy orders; proeiu-ement of vessels, etc., during war, 1413, 1475, 1476. Newspaper advertising; District of Columbia, 1123, 1187. for foreign suppUes, 1114. for proposals, 1111. rates paid for, 1184. written authority required for, 1124. Nominal or fictitious prices in bids; not considered, 1114. Numbering of copies filed in returns office, lllS, 1119. Oath of officer making return for filing in returns office, 1119. Obligating government beyond appropriations, re- stricted, 1104, 1116, 1288, 1331. Office not held by contract, 124. Officers appointed to make shall be furnished instruc- tions, blank forms, etc., 1119. empowered to make for naval service, 1111. making not to receive benefit or to corruptly benefit others, 1119. to append signatures, etc., 1118. right to salary, 97. Opening of bids, 1110. for foreign supplies; presence of Secretary and bureau chiefs, 1114. for naval supplies and transportation, 1111. in presence of parties, 1114. Open-market — Purchases, naval supplies, 1299. or procurement of services authorized in emergencies, 1109. Services procured in, 1299. Operation of law, termination by; payment of reserva- tion, 1115, 1116. Ordnance purchased without advertising, 1113. Originals of; deposited in offices of accounting officers, 1118. Overobligattng appropriations restncted, 1104, 1116, 1288, 1331. Panama RaUroad, 1368. Partial payments authorized. Navy, 1369. Payments; advanced as work progresses, 1369. advances of public money restricted, 1099, 1100. agents and contractors to render accounts for set- tlement, nil. appropriations available after fiscal year, 1107. for fuel not allowed without certificate, 1110, 1111. public property delivered as part pa3mient, 778. ten per cent reservation, 1115. to laborers and material men; contractors to give security for, 1227, 1228. Penalty — Delinquent bidder charged with difference in cost, 1112, 1113. For defaulting; subsequent bids rejected, 1114. CONTRACTS— Continued. Penalty— Continued . For nonperformance; forfeiture of double contract price, nil. omitting return for fiUngin returns office, 1119. Penitentiary labor; products used by naval forces, 1519, 1520. Pickles; purchase of, for Navy, 1115. Powder; purchase of gimpowder without advertising, 1113. Preserved meats for Navy, 1115. President's finding as toexcessive charges by American vessels, 1283. Prices; competition with foreign hemp, 1115. in bids nominal or fictitious; not considered, 1114. of foreign supplies; consular certificate required, 1114. United States and foreign supphes; preference, 1115. Principal defaulting; subsequent bids rejected, 1114. Procurement of stores and materials; President and Secretary of the Navy, 342. Proposals — Advertising for, 1109. Copies of to be filed in returns office, Interior Department, 1118, 1119. For naval supplies — And transportation: advertising for, 1111. Annual report of, 381 . Not to be advertised for in emergencies, 1109. Sale of naval vessels- Deposit to accompany, 1192. Record of, 1192. Submitted to all manufacturers of shells and pro- jectiles, 1395. To be accompanied by written guarantee, 1112, 1113. kept sealed until date of opening, 1111. preserved and recorded and reported armually to Congress, 1113. Provisions, Na\'y; advertising for proposals, 1111. . transportation by American vessels, 1283. Public- Officers not to accept fees for procunng, etc., 1332, 1333. Works; appropriation not to be overobligated, 1116. protection of laborers and material men, 1127. Purchases may be made in open market in emergencies, 1109. to be made after advertisement for proposals, 1109. Quarters; exceeding appropriations for, 1116, 1288. Record of each bid to be made when opened, 1110. proposals to be kept and reported annually to Congress, 1113. Regular dealers; bids submitted by persons who are not, 1114. Regulations becoming part of, 787. governing purchase of stores and supplies for Navy, 787, 788. may operate as, 198. Rejection of bids; grounds for, 1114. Relinquishment of 10 per cent reservation, 1115. Reports to Congress annually of proposals, 1113. Reservation of 10 per cent; paj-ment, 1115. Restriction on, in excess of appropnations, 1104, 1116, 1288, 1331. Returns office, Interior Department; copies to be filed in, 397, 1118, 1119. Samples of tobacco to be examined by naval board, 1250. 1597 INDEX. CONTRACTS— Continued. Screw threads; standardized to be used by Navy; specifications, 1520. Sealed bids for foreign supplies, 1114. proposals for naval supplies and transportation, 1111. Secretary of Iho Navy — Can not vary terms, 361. Judgement concerning excessive bids, 1114. May make, where bidder fails to furnish bond, 1112,1113. Powers as to purchase of fuel, 1 1 15. To advertise for proposals, 1111. approve specifications for steel, 1195. be present at opening of bids for foreign sup- plies, 1114. cause officers making, to sign names at end, etc., 1118, 1119. furnish instructions and forms to officers authonzed to make, 1119. insure quality of butter, etc., purchased for Navy, 1115. make or direct, 1111. report annually to Congress proposals received, 1113. Security for performance required of bidders, 1111. Services procured after advertising for proposals, 1109. in open market, amount less than $500; 1299. without advertising, in emergencies, 1109. Settlement; accounts to be rendered by contractors and agents, 1111. Shells and projectiles for Na^'y; restnctions on pur- chase of, 1395, 1396. Signatures of officers making, 1118. Sites for public buildings; not to exceed specific appropriation, 1116. Special, for baking bread, 1115. Specifications — For steel to be approved by Secretary of the Navy, 1195. Printed schedules to be furnished bidders, 1111. Screw threads, 1520. State interference with Federal contractors, 49. Stationery and supplies; not to be for longer term than one year, 1117. Steam boilers; purchase of; tests, 1182, 1183. Subsistence, Navy; exceeding appropriations for, 1116, 1288. Suit against contractor and sureties for liqmdated damages, 1113. Supplies — And transportation for Navy; advertising for pro- posals, 1111. For departments, 1358. to be purchased from other departments and establishments, 1526. For other bureaus or departments; appropriation chargeable, 1409, 1536. Procured in excess of needs for current year, 387, 1113,1117. To be procured after advertising except in emer- gencies, 1109. Sureties; copartners not received as, for each other, 1114. defaulters in previous contracts not received as, 1114. liable for liqmdated damages, 1113. one contractor not received as surety for another, 1114. Ten per cent reservation; pajTnent of, 1115. Terminated by operation of law; paj-ment of reserva- tion, 111.5, 1116. CONTRACTS— Coatinued. Term of; butter, cheese, and tobacco, for periods more than one year, 1113. not to exceed one year; stationery and supplies, 387, 1117. Time and place of opening bids to be communicated to parties, 1110, for filing copies in returns ofHce, 1118, 1119. Tobacco, may bo made for four years, 1113. Navy, purchase of, 1250. purchase without advertising, 1113. Transfer of, unauthorized, 1117. Transportation; advertising for, 1111. Army transports, 1298. coal in Alaska for Navy, etc., 1393, 1394. exceeding appropriations for, 1116, 1288. fuel; charges excessive, 1407, 1408, 1482, 1515. purchase of vessels, 1515. troops, etc., in time of war, 1465. vessels of United States to be used unless charges excessive, 1283. Treasury Department, copies certified by, for use in court, 427, 428. Unauthorized; if in excess of appropriations, 1104, 1116, 1288, 1297, 1331. purchase of land; speciflclaw required, 1117. Undertaking required to be furnished by bidders, 1112, 1113. United States articles preferred, for Navy, 1115. Vegetables, desiccated, purchase of for Navy, 1115. Vessels — Navy, under construction; ownership before ac- ceptance, 773. Procurement of, during war or emergency, 1453. Voidable; fraudulent enlistment, 550. Void, fraudulent enlistment, 552. Weighers of fuel, 1110. Wood to be inspected and measured before deUvery, 1110. to measme 128 cubic feet to cord, 1110. Writing required; signatures, etc., 1118, 1119. CONTRIBUTIONS: SeePolitical. Political, prohibited; officers and employeas of United States, 783, 1180, 1181. soUciting, giving, etc.; offenses connected with, 1334, 1335. Presents to superiors, 1073. CONVENING AUTHORITY: See Courts-martial. CONVENTIONS: Expenses of public officers attending; restrictions on, 1371. CONVERSION: See Disbursing officers; Evihezzlevient; Public moneys; Public property. Money or property intended for naval service; punish- ment, Navy, 990. Public moneys by custodians, prohibited, 1098. CONVICTION: See Jeopardy. Does not make accused incompetent as witness, 1047. Former conviction, plea of, 119. Necessary before pardon recommended, 84. Required before punishment, 73-74, 1078. CONVICTS: Court-martial prisoners confined in civil institutions, treated as, 9S3, 984. CONVOY: Merchant or other vessels; offenses connected with; punishment. Navy, 985. 1598 INDEX. COOKS: Marines detailed as; additional pay for, 1299. Pay, 864. COOLIES: Naval forces employed in preventing immigration of, 1081. COOPERATION: Army and Marine Corps; jurisdiction, 961. and Navy, 579. supplies and transportation fmnished, 433. Coast Guard with the Navy, 1091. COPIES: Contracts — and bonds furnished laborers and material men on public works, 1227, 1228. Certified by returns office, 428. by Treasiuy Department, 427, 428. Finished by returns office, 398. To be filed in returns office, Interior Department, 397, 1118, 1119. Consular records; evidence in court, 429. Records of court-martial furnished interested persons; evidence in other cases, 1036. Navy Department desired for use in court, 424, 426, 427, 1023. COPPERSMITH: Ratings established in Navy, 1495. COPYISTS: See Civil establishment. Employment from naval appropriations restricted,1281 . Pay, 204. COPYRIGHTS: Government pubUcations not to be copyrighted, 1232. Purchase of, by Hydrographic Office, Navy Depart- ment, 390, 1236. CORD: Wood for public service to measure 128 cubic feet, 1110. CORONERS: Right to hold inquests on United States reservations, 293. CORPORATION: " Person'' includes, in construing criminal code, 1355. CORPS: Army, defined; Marine Corps detached for ser\"ice with, 443, 444. CORRECTION: SeQ Errors. Commanding officer's duty as to, 978, 979. CORRESPONDENCE : Penalty envelopes to be inclosed in letters to Congress, 1191. COST: Work under naval appropriations; direct and indirect charges included, 1365. COUNCIL: National defense; creation; duties, etc., 1465, 1466. Unauthorized; expenses of not payable, 1105, 1316. COUNSEL: Accused entitled to, 129, 133. Appointment of special assistants by Attorney Gen- eral, 325. Attorney General will furnish; in departmental inves- tigations, 220. to assist naval courts-martial, 1019, 1020. Claims investigated in departments; Department of Justice to furnish, 325. prosecution of by former Government employees, 224. Court of inquiry proceedings; right of party investi- gated, 1056. COUNSEL— Continued . Courts-martial; public officer accepting fee as: punish- ment, 1333. Damage claim against captor in prize cases, 1139. Department of Justice provides for pubUc officers, 323, 460. subordinates to be sent into Federal or State courts, 326. EnUsted man tried by civil court; assignment of wages to pay, 893. charged with manslaughter before consular court, 224. Examining boards may have, 723. Fees not allowed — For services rendered to public officers, 323. Unless on certificate of Attorney (Jeneral, 325. Foreign countries, how obtained, 223, 321. oath not required, 224. Habeas corpus cases, 324. Heads of departments can not employ, 221 . Notaries public acting as, before departments, 1295. Naval officers sued in official capacity, 324. Oath required to be taken by, 224, 325. Secretary of the Navy not authorized to employ for courts-martial, 1019, 1020. Special, employed to assist district attorneys, 324, 325. State courts; Department of Justice can not prosecute cases in, 324. COUNTERCLAIMS : See Set off. Jurisdiction of Covu-t of Claims, 1362, 1363. COUNTERFEITING : Honorable-discharge blanks, 569. Signatures in connection with claims against United States; punishment. Navy, 990. COURT OF CLAIMS: See Claims. Accounting officers' jurisdiction with relation to, 235, 236. Appeals from judgments of, 1365. Attorneys, former Government employees, 224. Attorney General and subordinates to conduct and argue cases, 322. Calls on departments for information and records, 1364, 1365. Can not require confidential information from Depart- ments, 221. Claims referred by departments, 1363, 1364. Commissioners to take testimony, 1364. Counterclaims determined by, 1362, 1363. Decree on accounts of disbursing officers, 1363. Department of Justice to conduct proceedings in, 323. District coin-ts to have concurrent jurisdiction in cer- tain cases, 1361, 1362. Heads of departments to furnish Attorney General with information concerning suits, 220-221. Judgments; how paid, 276. jurisdiction of accounting officers, 232. Jurisdiction- Date of naval officer's commission not bindin.^ on, 835. Effects lost in naval service; claims for reiml)urse- ment, 271. Private property lost or damaged in naval service, 1492-1494. ReUef of disbursing officers, etc., 1362, 1363. New trial on motion of United States, 1365. Patents; suit for use of by Government, 1360,1494, 1502. Payment of judgments; cases referred by departments, 1364. Procedure in cases referred by departments, 1364. 1599 INDEX. tOUBTS: See Civil authorities; Courts-martiat: Judicial; Wit- nesses. Accounting officers' jurisdiction with relation to, 235, 2-17, 248. Admiralty and maritime jurisdiction, lor). Attorney General and subordinates to arpue cases in, 322. bound by decisions until reversed, 320. has general supervision of litigation involving United States, 281. will not render opinions on judicial questions, 300. Civil liability of commanding officer for illegal acts, loas. Commanding officer not a court, 119. Commission to take testimony for use in, 421, 1364. Consular, trial of capital oHenses by, 69. Contempt of; pardoning power, 84. Departmental records; production in, 194. Department of Justice — Subordinates to be sent into any Federal or State, 326. To furnish counsel for public officers, 328. District courts of United States; suits in, against United States, 1361, 1362. General provisions relating to, 399-432. Heads of departments' decisions not binding on, 348. may apply to, for subpoenas in pending claims, 219. may decline to testify or furnish records, 194. Injunction to prevent dismissal, 99. Judicial notice of duties, public officers authorized to perform, 213. system explained, 37. Jurisdiction — Accounting officers with relation to, 235, 247, 248. Appointment and removal of employees, 338. Assistant head of department, deposition required, 422. Business of executive departments, 345-348. Can not command the Army, 621. Concurrent with courts-martial, lOOi. Court-martial, over person in custody of civil court, 63, 64. proceedings, 60, 128, 401-403, 1047-1051. Date of naval officer's commission not binding on, 835. Examining boards for promotion, 728. Heads of departments, 78, 79, 778. Illegal acts by military officers, 54. Insane persons committed to Saint Elizabeths Hospital, 789. International law, 105. Mandamus; accounting officers, 256, 257. board of labor employment at navy yards, 780. heads of departments, 79. Secretary of the Navy, 778. Naval personnel, 65. Offenses on naval vessels, 983. Perjury committed in Federal court, 53. Public officers sued for official acts, 54, 350, 351. Retiring boards can not be reviewed by, 620, 621. Military officer awaiting trial by, pay, 825. Naval prisoners as witnesses in, 403. Philippine Islands, jurisdiction over naval vessel, 67. Political questions, lO-I. President beyond jurisdiction of, 77. Proceedings of court-martial bar to trial by civil, 1047. evidence before naval examining boards, 719, 720. Prohibition; writ of, not issued to court-martial, 977 COURTS— Contini-.od. Records of court-martial as evidence, 1036. of departments, copies for u;>c in, 426, 427. of Navy Department, furnishing for use in, 356, 424. Retirement can not be ordered by, 620, 642. State- Attorney General not empowered to conduct cases in, 323. Department of Justice can not prosecute cases in, 324. subordinates to attend to suits in, 326. Depositions for use in, 424. Federal officers attending as witnesses, 416. property in possession of; right of Government to recover, 773. Jurisdiction in habeas corpus, 53. of offenses on naval vessels, 67. Subpoena to head of department, 79, 422, 424. United States — Jurisdiction by habeas corpus over persons in Navy, 54. in cases of arrest by State authorities, 51-53. COURTS-MARTIAL : See Accused; Courts; Documentary evidence; Evidence; Jeopardy; Sentence; Punishments; Witnesses. Absence of— Accused at trial, 126-128. Witnesses, admission as to what they would tes- tify, 132. procured by accused, 132. Accused can not confer jurisdiction by consent, 125 977, 1033. promoted subjected to examination, status of, 652. waiver of rights and privileges, 121, 132, 1026, 1045, 1057, 1058, 1062. cquittal; disapproval of sentence equivalent to, 988. effect of, 988. not bar to suit for damages against accused, 1049. plea of, 119. Adequate punishment required, 1034. Admissibility of evidence determined by, 1024, 1025. Appropriations, special, not required for expenses of, 1105. Army, convened on naval vessel, 65. jurisdiction over Navy and Marine Corps, 1544. Marine officers may serve as members of, 1544. Bribery of members, witnesses, etc., 1336. Challenge, right of accused, 131, 1018. Character evidence, right of accused to process for obtaining, 133. Chiefs of bureaus subject to trial, 62, 366, 839, 977. Civil courts; jmisdiction with relation to, 60, 128, 401-403, 1001, 1047-1051. Clemency may be recommended by members, 1034. Coast and Geodetic Survey, officers may serve on naval. 1494. subject to naval jurisdiction, 978, 1479, 1480. Coast Guard officers may serve on naval, 1494. subject to naval jiuisdiction, 978, 1455. Commutation of sentence — By reviewing authority, 1009. Deck courts, 1308. Definition; mitigation distinguished, 85, 1054. General courts, 1051-1055. Officers dismissed pursuant to, 441. President's power, 1053, 1054 Summary courts, 1009. Conclusiveness of record, 1035, 1030. Confirmation of sentence by reviewing authority, 10.36-1051. 1600 INDEX. COURTS-3IARTIAL— Continued. Confirmation of sentence; mitigating circumstances considered by reviewing autliority, 1040. Congressional committee reviewing proceedings of, 1047. Consent of accused can not confer judirisdiction, 1033. Constitution authorizes, 68. Constitutional limitations applicable to, 68. Convened in foreign country, 65. Convening authority empowered to remit or mitigate sentence, general courts, 10.51-10.x>. outside his command, 1015. Conviction does not make accused incompetent as witness, 1047. necessary before pardon recommended, 84. plea of, 119. required before punishment effective, 73, 74, 1078. Correction of record, 1035. Counsel — Accused entitled to, 129, 133. For judge advocate, 222, 223, 324. Judge advocate acting for accused, 133. Public officers acting as; punishment for accepting fee, 1333. Court of inquiry proceedings admissible in evidence, 131, 10.56, 1057. Cumulative evidence, right of accused to process for obtaining, 132. Death— Of member before signing record, 1034. Sentence authorized, 979-982, 1012. liow determined, 1034. life imprisonment may be substituted for, 9S3 mitigation of, 1054, 1055. President must confirm before execution, 1036. prohibited unless specifically authorized, 1034. Deck courts- Appeal from decision, 1309. Approval of sentences, 1312. By whom convened, 1308. Constitution of, 1308. Convening of, 1441. by commanding ofiBcer of hospital or hospital ship, 1441. Discharge from service can not be adjudged by, 1308. Execution of sentences, 1308, 1312. General provisions relatmg to, 1308, 1309. Judge Advocate General to re\iew records of, 1309. Jurisdiction of enlisted men under command of convening officer, 1441. Oaths administered by, 1308. Objection to trial by, 1309. Officers of Naval Reserve Force, Coast Guard, etc., eligible for, 1494. Punishments which may be adjudged by, 1309. Recorder of, 1308. Records of, 1309. Regulations of President to govern, 1309. Re->.iewingauthority: mitigation of sentence, 1308. Secretary to act on, in certain cases, 1309. Defense — Accused allowed reasonable time to make, 1025. Former arrest, 119. Insanity, 1030, 1031. Irresistible impulse, 1031. Punishment by commanding officer not bar to trial, 1004. Statute of limitations, 1058, 1062. Depositions of witnesses, 131, 1023, 1311, 1312. COURTS-MARTIAL— Continued. Discretion as to punishments, 979, 981, 983, 984, 985, 990, 994, 996. Dismissalof— Member absent without authority, 1031. Officers, 441, 1010-1014. . mandatory in certain cases, 994, 1029, 1031, 1064, 1287. Dismissed officer may demand trial by, 1012. Errors; review of by civil courts, 60, 128, 401-403, 1047-1051. Estimate and appropriations for. Navy, 1103. E\ideucc; general rules of, 1024. should all be recorded, 1034. Expenses of, may be paid without special appropria- tion, 1105. Expert witnesses, 241, 412, 611, 1025, 1056. Finality of proceedings, 60, 68. Finding- Guilty of lesser offense than that charged, 1029. Partial disapproval; effect on sentence, 1038. Fines may be adjudged, 990. to be credited to naval hospital fund, 1159. to be used for transportation of discharged prison- ers, 1313. Former punishment no bar to trial, 1004. General- Absence of members, 1029-1033. restricted imder pain of dismissal, 1031. Absent member returning; witnesses recalled 1032. witness; additional charges may be tried on return of, 1025. Accused allowed reasonable time to make defense, 1025. to be furnished charges when put under arrest» 1025. Additional charges not to be urged against accused at trial, 1025. triable by different court, 1028. Adjournment^ By convening authority, 1029. From day to day in absence of quorum, 1031. Arrested officer to confine himself, etc., 1029. Arrest of accused, 1025. Challenge of member, 131, 1018. Changes in membership by Bureau of Naviga- tion, 1018. Charges— And specifications, 1025-1029. To be furnished accused when put under arrest; additional charges restricted, 1025. Commutation of sentence, 1051-1055. Constitution of, 1015-1019. Contempt of coiu-t by vsritness, 1021, 1310. Convening authority, 1014-1015, 1310, 1442. may inflict punishments without trial, 1441. may order courts of inquiry, 1442. deck courts, 1441. must confirm sentences, 1036. power to remit or mitigate, but not commute sentence, 1051-10.55. temporarily adjourning, 1029. trial of midshipmen, 1248. Delay of proceedings, 1029. E\idence, 1021-1025. after court cleared, 1030. to be recorded by judge advocate, 1019. Execution of sentence; confirmation of reviewing officer required, 1036. Illegally constituted, 1018. 1601 INDEX. COIRTS-MARTIAL— Continued. General— Continued . Irregularity in administering oaths, 1020. Judge Advocate- Duties, 1019. May administer oaths for purposes of naval administration, 1240. Not sworn, effect of, 1020, 1021. Responsibility for verity of record, 1034. To administer oath to meniliers, 1019. Judgment authenticated by signatures of members and judge advocate, 1034. Members, 1015-1019. as witnesses, 131, 1019. responsible for tnith of record, 1034. Minor eligible as member, 1018. Mitigation of sentence, 1051-10.55. New trial, former members ineligible, 1018. Number of members, 1015, 1010. reduced below minimum, 1031. who may proceed with case, 1029. Oath of judge advocate, 1019. members, 1019. witnesses, 1021. Officers of Naval Reserve Force, Coast Guard, etc. eligible for membership, 1494. Perjury by witness, how punished, 1021. Precedence of members, 101.5, 1010. Precepts, changes in, 1015, lOlS. recitals in, 1015. Presence of accused during trial, 1030. President's action on sentence; midshipmen cases, 1248. President of, 1015, 1016. to administer oath to judge advocate, 1019. to swear witnesses, 1021. Proceedings, 1029-1031. not invalidated by unauthorized absence of member, 1031. to be recorded by judge advocate, 1019. Prosecutor, 1020. Public ses.sions, 1030. Quorum may proceed with case, 1029-1033. not present; may adjourn from day to day, 1031. Rank of members, 1015, 1017, 1031. Record to be kept by judge advocate, 1019. Remission of sentence, 1051-1055. Retired officer eligible as member, 1018. Return of absent member; witnesses recalled, 1032. Reviewing authority's action on sentence, 1051- 1055. authority, trial of midshipmen, 1248. Revision of proceedings; absent member, 1031, 1032. Secrecy of votes and opinions of members, 1019. Secretary of the Navy may convene for midship- men, 1248. Senior member to preside, 1015, 1016. Sentence — How determined, 1034. Not to be di\nilged until approved by proper authority, 1019. Remitted or mitigated by reviewing authority, 1051-1055. Sittings to be from day to day, Sundays excepted, 1029. Summary court-martial punishments may be in- flicted oy, 1010. Sunday sessions not required, 1029. COURTS-MARTIAL— Continued. General— Continued. Suspension of oflicer's pay, 1033. of proceedings, 1029. Temporary adjournment by convening authority- 1029. To punish irreverent behavior during divine service, 979. Vote of members not to be divulged, 1019. Waiver of objection by accused, 1026. Witnesses- Members of court as, 131, 1019. Prevaricating, how punished, 1021. Recalled on return of absent member, 1032. Sworn by president, 1021. Habeas corpus proceedings relating to, 401-403. Haste in conducting proceedings, 130. Hours of spssion, miu.sual not approved, 130. Illegally constituted; not due process of lav/, 125. Imprisonment may be adjudged, 983, 990. Investigating loss of naval vessel, 996. Irregularities — And fatal defects, distinguished, 1045-1047. Not fatal, 1033. Waiver of objection by accused, 1026. Jeopardy; new trial, 1047. Judge Advocate General — Duties relating to, 1186, 11S7. Power to revise proceedings, 1043. Subject to trial, 62, 366, 977. Judicial notice; State laws, 429. Jurisdictional facts must be shown by record, 1034. omitted from record, 1034. Jurisdiction- Change of status of accused does not divest, 403. Chiefs of bureaus, 62, 366, &39, 977. Concurrent with ci\-il courts, 1001. Consent of accused can not confer, 125, 977, 1033. Discharged or dismissed persons; trial of, 991, 1012. Embezzlement, misappropriation, false accounts and false returns, 1170. Enlisted men not discharged, 555, 556. Homicide on naval vessel, 983. Marino Corps, 960, 961. Midsliipmen, 124S. Not conferred by consent of accused, 125, 977, 1033. Not limited by espionage act, 1484. Of civil courts to re\iew, etc., 60, 12S, 401-403, 1017-1051. Offenses, 65. against Articles of War committed by marines, 1544. Of State courts to release prisoners, .53. Persons amenable to, 62, 973-978. civilian spies, etc., 981, 982. crew of lost vessels until discharge, 996. discharged enlisted men, 567, 991, 1060. dismissed officer, 991, 1012-1014. enlistment expired but not discharged, 558, 1057, 1061. illegal discharge revoked, 1008. Persons not amenable to, 63. Retired enlisted men, 969, 970. officers, 62, 631, 643, 644. Specification fatally defective: proceedings and sentence nullities, 1008, 1009. Jury analogous to, 1039. Law and facts decided by, 1024, 1045. Lighthouse Ser^^ce, officers may serve on naval, 1494. subject to naval jurisdiction, 978, 1456, 1457. 1602 INDEX. COURTS-MARTI AL— Continued . Limitation of— Punishments, time of peace, 1062-1064. Trials; desertion in time of peace, 1060-1062. general oflenses, 1057-1060. Marine Corps — Reserve, ofHcers may serve on naval courts, 1494. Subject to naval jurisdiction, 956, 978. Members — May recommend clemency, 1034. Must sign judgment, 1034. Officers of auxiliary naval forces eligible, 1494. Testifying as witnesses, 131, 1019. Midshipmen, 751-761, 1248. for hazing, 1178, 1286, 1287. Secretary of the Navy to convene for trial of, 1248. Misconduct; officers to be tried for, and not re- tired, 622. Mitigating circumstances considered by reviewing authority, 1040. Mitigation of sentence, 85, 1009. Coast Guard personnel, 14r)5. deck courts, 1308. general courts, 1051-1055. Secretary of the Navy has power, 1309. summary courts, 1009. Naval- Academy, how constituted, convened, etc., 1178. Militia, convening on naval vessels, 65, 71. Reserve f'orce, officers may sen,e on naval courts, 1494. subject to naval jurisdiction, 978, 1446, 1447, 1451, 1511. New trials, 121, 1047. Oath of witnesses before any court-martial, 1021. Officer awaiting trial by; pay, 825. not to be dismissed without sentence of, in time of peace, 441, 1010-1014. of auxiliary naval forces eligible for duty on, 1494. Omission of record to show jurisdictional fact, 1035. Pardon of punishment, 85. Partial verdict, 1029. Perjury before, 431, 1021. Plea of guilty ; evidence after, 1024. Power of Congress to create, 59. President may convene without statutory authority, 83, 1015. must confirm sentence of death or dismissal, lO'M. President of court to sign judgment, 1034. President's power to mitigate sentences, 1053, 1054. Proceedings bar to trial by civil court, 1047. interrupted before completion, 121. set aside by Secretary of the Navy, 1309. Proliibited punishments, 1034. Promulgation of sentence, 1045. Pulilic Health Service, officers may serve on naval, 1494. subject to naval jurisdiction, 978, 1491. Public trials, 130. Punishments without sentence of, restricted, 1002. Questions of law and facts decided by, 1024, 1045. Recommendation of clemencj- by members, 1034. Reconvening of, for revision of proceedings and sen- tence, 1043-1044. its own motion, 1044, 1045. Record — Conclusive of its own verity, 1035, 1036. Copies furnished to persons interested; evidence in other cases, 1036. Death of member before signing, 10;J4. Decisions relating to, 1034-1036. COURTS-MARTIAL— Continued. Record — Continued . Evidence before examining boards, 718, 719. Judgment authenticated by signature of members and Judge Advocate, 1034. Of proceedings received, revised, and recordfIENT OF JUSTICE: See Attorney General. Argument of cases in court, 322. Counsel furnished to departments investigating claims, 220. to Heads of departments, 221. to naval officer in foreign country, 224. Duties, 222, 323. General provisions relating to, 281-326. Litigation; control of, 2S1. Naval- Officers detailed to duty under, 578. Solicitor, 282. duties assigned to Judge Advocate Oeneral, 1186, 1187. Opinions to be rendered by officers of, 323. Subordinates; duties of, 323. sent into any State in connection with suits, 326. DEPARTMENT OF THE NAVY: See Navy Department. DEPENDENTS: Officers and enlisted men; death gratuity payable to, 1546, 1547. quarters furnished for, 696. transportation furnished for, 1.535, 1536. DEPOSITIONS: Admissibility in State courts, 125. Attorney General may secure in any State, 323. Chiefs of bureaus making for use in courts, 424. Claims pending in departments, how obtained, 219. Evidence before court-martial, 131, 1023, 1311, 1312. For use in States, Territories, or foreign countries, 424- Headsof departments, assistants, required tomake, 422- Manner of taking and transmitting, 425. Taking of, when no commission appointed, 425. Use of in Federal courts, 421. Witness fees allowed for giving, 425. DEPOSITS: Contrary to law; postal employees, 1344. public moneys, 1329. unauthorized banks, 1098. Deductions not to be made from public moneys, prior to, 1095, 109G. Disbursing officers, 1096. failure to make when required, 1.3.30. Enlisted men; furloughed without pay, 537. Marine Corps, 951, 1295. Navy, 877, 1202. rated as mates or appointed as warrant officers, 524. Proposals for purchase of naval vessels must be accom- panied by, 1192. DEPUTY: Disbursing clerk; premium on bond of, 211. DEREUCTS: Marking and removal of, 122:5. Permanent appropriation for payment to salvors, under Navy Department, 1100. Removal of by naval vessels, 1284. DESCRIPTIVE LIST: Enlisted men furnished with whenever sent from ship or transferred to other vessels, 995. to be entered in ship's books, 995. DESERTERS: See Desertion. Aiding or assisting; punishment for, 789, 790, 985, 1326, 1327. Applicants failing to complete enlistment, 790. Apprehending; estimates and appropriations for, 1103. .Ajrest of, 117, 987, 1103, 1311. Attorneys assisting, 790. Convicted; appointment as officer of the Navy, 573. Enlistment of, 551. Entertaining, punishment, Na\-y, 985. Failing to give notice of, to naval superior, 985. Forfeiture of pay by, 869, 870. In time of war; penalty for enlistment of, 994. Naval, enlisting in Army; punishment for retaining, 1.544. Receiving, without giving notice to naval superior, 985. Record of in ship's books, 995. Status not affected by resolution terminating war for certain purposes, 1558. Reward for; checkage of amount against pay unau- thorized, 1004. Time lost required to be made good before completion of enlistment, 987, 988. Void enlistment, miaors serving under cannot be, 976, 977. DESERTING MAILS: By any person in charge, 1339. DESERTING TRUST: In time of war, or aiding or enticing others to, 979. DESERTION: Acquittal of, effect, 988. Aiding others to desert in time of peace, punishment. Navy, 985. Attempting to commit, in time of peace; punishment, Navy, 98,5. Charge; removal of, civil war cases, 1200, 1201, 1272. Citizenship rights forfeited by, 73, 74, 140, 9.M, 1077, 1078. Continuing offense, 75, 1060, 1061. Date of— Offense, 1057, 1000. To be entered in .ship's books, 995. Definition of, 987, 989. During battle, 980. Enlistment not completed, 790. 1609 INDEX. UKSKRTION— Continued . Knticing — Orassisting others to desert, 789, 790, 988, 1326, 1327. Time of peace, Na^'y, 985. Time of war, Navy, 979. l'"orfoitures credited to uaval hospital fund, 1273. Fraudulent enlistment not a defense, 977. Increasing penalties, not ex posto facto, 7-5. Intent to remain permanently absent; commissioned officer, 9S9. Minor serving under void enlistment can not commit, 976, 977. Pardon to restore citizenship rights, 84. Resignation of officer not accepted, 989. Rewards for arrest of deserters, 118. Statute of limitations; time of peace, 1060-1062. Time of war, 1057. Time of war, punishment for, Navy, 979. DESICCATED VEGETABLES: Purchase of for Na\-y, 1115. DESTITUTE: Seamen, 575. DETACH: Definition of, 443, 954. DETACHMENTS: ^^arine Corps, 936. DETAILS: .'^ee Active duty; Civil establishment; Foreign shore duty; Line officers; Naval forces; Pay of Naval Estab- lishment; Sea service; Vessels of the Navy. Appropriations transferred for expenditure by bureau or department performing service, 1409, 1536. Civil employees — From outside of District of Columbia, restricted, 1188, 1290, 1384. Government Printing Office; restrictions on, 1359, 1360. Restrictions on extra pay or allowances, 1066-1071 . Toimauthorized boards, commissions, etc., 1316. Within department, 203. Coast Guard personnel; duties, 1456. Duties not military; court martial jurisdiction with relation to, 977. Enlisted men — Of 20 years' service preferred for, 1297, 1298. To Dominican Republic, 1502. executive departments, 337. Haiti, 1416. nautical school in Philippines, 1297. Executive departments to assist Smithsonian Institu- tion in acquisitions for Zoological Park, 1204. Fisheries; heads of departments to assist commis- sioner of, 1133. Line officers, to duty under staff officers, 1359. Marine Corps — As cooks; additional pay for, 1299. Shore duties, 955. Staff departments, 922, 1460, 1461. to duty away from headquarters, 922. To naval vessels, 954. To duty with Army, 956. Naval forces — Enforcement of immigration law, 1081. of sponge law, 1289,1290. Protection of accused extradited from foreign gov- ernment, 1167. of fur seals, 1387. of timber, 1088. Suppression of piracy, 1130, 1131. To enforce regulations, regattas or marine parades, 1300, 1301. DETAILS— Continued. Naval forces— Continued. To prevent aliens fishing in Alaskan waters, 1289. remove derelicts at sea, 1284. .Naval medical officer — To advisory board: Public Health Service, 1279. Hureau of War Risk Insurance, 1495. Red Cross, 1436, 1437. Naval officers — Aid or executive of commanding officer, 669, 779. And men; transportation of families and house- hold elTects, 153'), I5:;r). As attache to diplomatic officer, 828. commandant of navy yard, 779. counsel for examining board, 723. firstlieutenant of station or vessel, 577. governor of Virgin Islands, 1470. professors at Naval Academy; relative rank with Army, 667. secretaries and clerks at sea, 1182. storekeeper at Naval Academy, 770. on foreign station, 579. superintendent. Naval Observatory, 1276, 1277. supervisor of New York Harbor, 1198, 1199. Ineligible for civil positions at navy yards, 770, 780. Power of Congress and President, 578. Shore duty — In time of war or emergency; eligibility for promotion, 1434. Must be required by public interests, 1191, 1218, 1219. To advisory committee for aeronautics, 1402. Alaska, 1393. aviation duty, 1437-1440. Brazil; leave of absence, etc., 1399. Coast and Geodetic Survey, 1151, 1215. command squadrons with rank of flag officer, 576. Dominican Republic, 1502. Department of Justice, 578. educational institutions, 435-441, 701, 1184, 1185, 1247, 1248. engineering duty, 1435. examining boards upon repairs to vessels, 776, 777. Haiti, 1416. light-house estaliUshment, 1149, 1298. Nautical Almanac Office, 391. Naval Academy; duties; punishment for ne- glect, 1287. Naval Observatory; board of visitors to recom- mend, 1276. nautical schools, 1368. Navy Department, 213, 215, 333, 337, 3G4, 466. assistants to chiefs of bureaus and Judge- Advocate General, 466, 1222, 1224, 1261, 1284, 1418. to Chief of Naval Operations, 1418. chiefs of bureaus, 362. Hydrographic Office, 389, 1508, 1545. ocean mail vessels; 1216, 1217. Shipping Board, 1466. South American Repubhcs, 1556. commercial interests, 576. vessels of the Navy, 775. War Department, 507, 578. additional compensation not allowed, 1071 . supervisor of New York Harbor, 1198. Payment for services rendered by one department for another, 579, 1409, 1536. Petty officers to educational institutions, 441. 1610 INDEX. DETAILS— Continued. Rear admirals — And captains to command fleets and subdivisions, 1481. To selection boards, 1430. Shore duty beyond seas, defined, 127'>. Smithsonian Institution; executive departments to assist in acquisitions for Zoo, 1204. DETECTIVES: Arrest of deserters by, 118. Employment of restricted, 118, 1220. DETENTION: Defined; voluntary agreement not included, 559. Enlisted men; after expiration of enlistment, 542, 543, 555-562, 1064. pay, 873, 874, 883. DIPHTHERIA: Immunization injections; naval personnel required to submit to, 458. DIPLOMATIC SERVICE: Jurisdiction of, and military authorities, 576. Naval officer appointed in, vacates office, 579. DIRECTOR: Civilian marksmanship; marine officer eligible for ap- pointment as, 1465. DISABIUTT: SeeLineof duty; Retirement; Veterans; War Risk act. Admission to National Home for Disabled Volunteer Soldiers, 1400, 1401. Artificial limbs aUowed, 1156, 1157, 1181, 1217. Civil employees; compensation for, 1467-1469. retirement for, 1538, 1539. Compensation for, naval personnel, 1498-1501. Disciiarge; enlisted men; not incurred in line of duty; refund of enlistment bounty, 1292, 1294, 1298. Enlisted men; allowances to, 1154-1157, 1498-1501. separate compartment on vessels for treatment of, 995. Incident to the service; retirement, 603. Mental; retirement for, 593. Misconduct causing; absence from duty on account of, 1436. Soldiers, sailors , and marines; furlough certificates; re- duced railroad fares, 1554. Trusses furnished to enlisted men of Navy, 1185. DISAPPROVAL: Court-martial proceedings; effect of, 988, 1008, 1009, 1038. DISASTER: Marine, construed, 272. DISBURSING AGENTS: Public buildings, 261. DISBURSING CLERKS: Authority limited to payments not requiring judg- ment, 212. Bonds appUcable to temporary substitute, 1315, 1316. Deputy, premium on bond, 211. Detailed to disburse moneys for another department, 212. Employed in excess of appropriations, 211. Executive departments; appointment, bond, and com- pensation, 209. Held to be clerks, 206. Position can not be abohshed without statutory author- ity, 204, 212. Responsibility for payments, 212. Temporary absence; substitute, 1315, 1316. DISBURSING OFFICERS: See Accounting officers; Accounts; Bonds; Crimes; Sup- ply Corps. DISBURSING OFFICERS— Continued. Accounts — Failure to render, 1330. Falsification of; punishment, 1368. Form of, 1097. Navy Department expenditures; form of, 1102, 1103. To be kept by; receipts and expenditures, 109S. rendered quarterly and when otherwise re- quired, 1215. Unchanged for three years, 279. Additional pay for disbursing money restricted, 10'>7. Advances of public money restricted, 1099, 1100. Acmual statement of expenditures required to be sub- mitted, 226. Arrears; withholding pay until accounting, 1072. Checks; issuing for less than one dollar; punishment, 1337. lost or stolen; dupUcates, 1098, 1099. outstanding, 276-278, 1417. Commanding officer not required to act as, 574. Commissions and inquiries; expenses of, not to be paid without special appropriation, 1105. Conversion of moneys by, 1098, 1329. Death of; duplicate checks issued, 1099. Decision of accounting officers may be obtained by, 1225. DeUnquency — Money requisitions disapproved, 1225, 1226. Proceedings against, 427, 428, 1097, 1098. Remaining in office after, 494. Reported to Congress, 1226. Suit on bond; statute of limitations, 1199. Withholding pay; suit against, 1072. Deposit of money, 1096. contrary to law, 1098, 1329. failure to make as required, 1330. Disbursements to be made in specified currency, 1100. Dismissed for making unauthorized exchange of funds, 1100. Drafts to be promptly presented for payment, 1100. Duplicate checks issued for lost or stolen, 1098, 1099. Duty, 1098. to keep moneys safely, 1098. E mbezzlement — Evidence against, 428. General provisions, 1329-1331. Public or private money or property, 1331. Exchange of funds restricted, 1098, 1100, 13,30. Failing safely to keep public moneys, 1329, 1330. False accounts, records, or reports: punishment, 1368. Foreign stations; appointment of, 788. Fuel payments; credit not allowed without certificate, 1110, nil. Indebtedness; failure to pay into Treasury reported to Congress, 1226. Larceny of checks; dupUcates issued, 1098, 1099. Loans by, prohibited, 1098, 1329. Lost or stolen checks; duplicates, 1098, 1099. Navy; accounts rendered direct to accounting officers, 1097. amounts lost or unaccounted for reported annually to Congress, 118:3. Payment made in specified currency, 1100. of funds re(iuired, when ordered, 1098. Premium on sale of public securities, 1100. Receipts for larger sum than paid by, 1329, 1331. Regulations governing duties of, 786, 1098. Relief from responsibility for losses, 488, 1362, 1363, 1527, 1528. .M641°— 22- -102 1611 INDEX. DISBURSING OFFICERS— ContinuPd. Report to Congress of expenditures from naval appro- priations; Secretary of the Treasury to submit, 1183. Responsibility of; insurer of funds, 487. Safe-keeping of public moneys required, 1098. Special agents; bonds of, 1095. Stolen checks; duplicates, 1098, 1099. Suspended for making unauthorized exchange of funds, 1100. Time for rendering accounts, 1097, 1215, 1225, 1226. Trading in funds or property, Federal or State, 1332. Transfer of funds required when directed, 1098. Transferring money contrary to law, 1329. Use of funds contrary to law, prohibited, 1098. Witlidrawing money contrary to law, 1329. DISCHARGE: SeeDismiKsal; Dropped; Habeas corpus; WhoUy rcUred . Acting assistant surgeon; acceptance of another office, 529. chaplains failing on examination, 1396. warrant ofTicers: reenlistment, 525. Bad conduct; illegal; set aside by Secretary of the Navy, 1008, 1009. men furnished with clothing, 1107. not to be executed in foreign country, 1008. summary court-martial may adjudge, 1006. war risk compensation excluded by, 1500. Certificate — Counterfeiting, 569, 1473. In true names, 1379, 1380. Necessity for, 568. Theft of, 509. Character of; Navy Department's determination final, 566. Civil establishment, 99, 338, IISO, 1388. Clothing outfit refunded on, 1292, 1294, 1298, 1402, 1403. Commanding officers shall grant, 573. Congress, power of, to remove officer, 635. Continuous-sersice certificates, 569. Court-martial jurisdiction after, 63, 567, 974, 991, 1060. Date effective, 568, 569. pay until notified, 826. Deck courts may not adjudge, 1308. De facto enlisted man, 62, 567. Disability; not in line of duty; refund of enlistment bounty, 1292, 1294, 1298. preference in appointment to civil offices, 1035. Disbursing officers making unauthorized exchange of funds, 1100. Dishonorable; men sentenced to arc additional to en- listed strength, 536, 1423, 1463, 1478. war risk compensation excluded by, 1500. Due process of law, navarofficer unfit for promotion, 124. Effect of, 566, 567. on indebtedness of enlisted man, 245-246. Enlisted men; amenable to descipline until discharged, 9%. appointed as commissioned officers, 523. as warrant officers, 523. detained after expiration of enlistment, 555, 556. foreign port, 555, 556. furlough without pay, 871, 872. general provisions relating to, 562-570. indebted to Government, 500. jurisdiction pending reenlistment : subject to regu- lations, etc., 1201, 1202. mileage and transportation furnished, 874-876, 1415. not troops of United States after, 1180. rated as mates, 52;?. reenlistment in different branch; travel pay al- lowed, 1551, 15.52. DISCHARGE— Continued. Enlisted men, refund of bounty, 1292, 1294, 1298. reinstatement in civil establishment, 1464, 1476, 1524, 1530. sentenced to; additional to authorized strength. Navy, 536, 1423, 1463, 1478. transferred to Fleet Naval Reserve, 871. transferred to Hospital Corps, 555. Expiration of enlistment; three months prior to, 1381, 1382. Female nurses. Navy, 1303, 1304. Forciini country; bad conduct, not to be executed in, 1000. Forging certificat&s of, 569, 1473. Furlough in lieu of, 1436. Honorable; after one year's service as enlisted man; law repealed, 1419. burial in national cemeteries, 1163. commanding officer to grant, 573. definition of; mileage law, 875. effect of, 870. enlisted men allowed home on receiving ship pending reenlistment, 1201, 1202. entitled to, 562. form of, 569. graduates of Naval Academy not needed to fill vacancies, 1188, 1189. gratuity on reenlistment, 883-891, 947. officers may be reappointed in Navy after, 1393. morally imfit for promotion, 630. ordinary discharge distinguished; definitions, .564, 886. preference for appointment as warrant officers, 534. in civil employment, 338, 339, 780, 1065, 1180, 1383, 1524, 1526, 1530. reinstatement in civil establishment after war with Germany, 1530. report of men entitled to, 573. testimonial of fidelity and obedience, 573. Illegal; court-martial sentence set aside by Secretary oftheNax-y, 1008. Inaptitude; refund of enlistment bounty, 1292, 1294, 1298. Lost; certificate in lieu of, 1203, 1204. Medical survey; transportation home, 875, 1274, 1275. Men sentenced to, excluded from enlisted strength, 536, 1423, 1463, 1478. Minors, on request of parents, 1402, 1403. Naval Reserve Force; refund of clothing gratuity, 1444, 1447. released from active duty; deposits paid, 877. restrictions on, Fleet Naval Reserve, 1451. Ofllcer— Accepting appointment in diplomatic or consular service, 579. Dropped from rolls for absence without leave, 1011, 1012. for unauthorized absence, imprisotmient, etc., 1503. Failing to pass professional rexamination. Marine Corps, 1463. toquaUfy for promotion in Navy, 729-734, 1189. Incurring deficiencies in violation of law, 1104, 1105. Unfit for promotion by reason of dnmkenness, etc., 623, 6.30, 1189. Ordinary; distinguished from honorable, 564, 886. Preference of soldiers and sailors for civil employment, 338, 339, 780, 1065, 1180, 1383, 1524, 1526, 1530. Prior to expiration of enlistment, 934. Prisoners; not troops of United States after, 1180. transportation and clothing furnished, 1313. 1612 INDEX. DISCHARGE}— Continued. Purchase; fiu-lough in lieu of, 14^6. Navy and Marine Corps, 1222. Refund of clothing outfit, 1292, 1294, 1298, 1402, 1403. minor who fraudulently enlisted, 1402, 1403. Request; refund of enlistment bounty for, 1292, 1294, 1298. Revocation — Amenabihty to court-martial after, 975. Court-martial sentence held illegal, 568, 1008, 1009- Fraud, 568. Of appointment, acting chaplains, 1396. acting ensigns, 1435. Marine Corps, 1461, 1462. Ship's company; vessel lost; amenable to discipline until discharged, 996. Special order; furlough in lieu of, 1436. Terms construed and distinguished, 97. Warrant officer, revocation of appointment, 524. AVhoUy retired, synonymous with, 030. Undesirable; refund of enlistment bounty, 1292, 1294, 1298. War Risk compensation, etc., barred by, for cause, 1496. DISCIPLINE: See Articles for the government of the yavy. Conduct to the prejudice of, 1000. Enlisted men amenable to until discharged, 996. Jurisdiction over soldiers during war, 42. Marine Corps; regulations governing, 956. Violation of, after loss of vessel; punishment, Navy, 996. DISCRETION: Appointing power, 95. Commanding officer of naval vessel, 1003. President; reference of cases to retiring boards, Na^^, 598. Public officer, not reviewable, 242, 243. Secretary of the Navy, 344, 345. allowance of actual expenses for repeated travel, 1272, 1273, 1274, 1278. of pay to employees, insular possessions, in transit, 1278. not reviewable, 237, 828, 829. DISCRIMINATION: Against uniform of Navy, Marine Corps, etc., 1360. DISEASE: See Line of duty. Absence from duty caused by; due to misconduct, 825, 1436. Communicable; cooperation of Navy Medical Depart- ment to suppress, 1520. Compensation for, naval personnel, 1498-1501. Contagious; civil employees granted leave because of, 1221. Detention, isolation, quarantine, or commitment to institutions for prevention of, 1517. Injury defined to include, 1496. Medical injections to prevent; naval personnel must submit to, 458. officers to consult in difficult cases, 466. treatment; naval personnel required to submit to, 458. Protection of naval forces against, 1517. Records to be kept of treatment and character of, 466. DISMISSAL: See Discharge; Dropped; Wholly retired. Accepting appointment in diplomatic or consular ser- vice, 579. Acquiescence in; effect of, 826, 989. Acting master's mate not a warrant officer, 1045. DIS>USSAI^— Continued. Additional number officer; vacancy not filled, 1275^ 1270. Cashiered distinguished, 1032. Chief of bureau; sentence of court-martial, 8:J9. Civil establishment; inefficiency, etc., 1383, 1388. instructor. Naval Academy, 1287. service law; persons violating, 13S5, 1384. Commissioned officer; sentence must be confirmed by President, 1036. Compensation and benefits under War Risk act, barred by, 1496. Confirmation by President; form of action, 1010-1042. warrant officer reduced to enlisted rating, 524. Congress; power of, to remove officer, 635. Contributions for presents to superiors ground for, 1073. Court-martial jurisdiction after, 63, .567, 974, 991, lOtiO. Disbursing officers making unauthorized exchange of funds, 1100. Discharged, dismissed, and wholly retired; terms ex- plained, 97. Effect of; midshipman dismissed for hazing, 1281. Illegal; revocation of, 1011. Indirect, by appointment of successor, 1011. Injunction to prevent, 99. Irregularities of board by which officer mustered out , 69. Mandator^' in certain cases, 994, 1029, 1031, 1064. naval officer failing to report offenses by midshii)- men, 1287. Member of court-martial absent without authority, 1031. Midshipmen, 752, 755-760. court-martial sentence, confirmation of I'rcsident required, 1248. effect of, 761, 1178. eligibiUty for reappointment, 582. hazing, 1178, 12S1, 1286. procedure to be followed, 1286. reinstatement, 1178. single act of hazing; court-martial required, 12S6. without court-martial, exception, 1286. Mitigation of court-martial sentence, 1053. Naval officer — Dropped from roUs for unauthorized absence, etc., 1503. Ineligible for reappointment, 582. Pay on restoration, 1178. Restrictions on, 441, 1010-1014. Under arrest must confine himself, under penalty of, 1029. Unfit for promotion by reason of dnuikenness, etc.; pay, 623, 1189. Niu-se Corps, female, 1303, 1304. Officer- Accepting presents from inferiors, 1073. Appointed for fixed term; power of President, 365. Dropped for absence without leave, or confinement by civil authorities, 1010, 1012. Failing to qualify for promotion, discharged, 72^ 734. Influencing legislation or attempting to do so, 1527. May demand trial after, 1012-1014. Withholding public moneys punishable by, 1096. Pharmacists removable in the discretion of the Secre- tary of the Na\T, 1262. President's power — Decisions relating to, 97-99. Restrictions on, 441, 1010-1014. With consent of Senate, 98. 1613 INDEX. DISMISSAL-Continued. Reappointment of ofBcers — And midshipmen, 582, 1178. Dropped from rolls for unauthorized absence, etc., 1503. Reconsideration of reviewing authority's action ap- proving sentence, 103-8, 1039. Reduction of ofllcer to enUsted rating; sentence con- firmed by President, 1045. Resignation to escape; naval officer ineligible for reap- pointment, 582. Restoration of officer, 94, 582, 1012, 1178. Revocation of appointment as mate, 522. of recess commission, 100. of dismissal, unauthorized, 761. Sentence must be confirmed by President, 1036. Superintendent of Naval Academy, for neglecting in- structions to midshipmen, 1195. Veto of bill altering records, 35. restoring officer, 34. Void in certain cases, 1012-1011. Warrant officer; revocation of appointment, 524. sentence must be confirmed by President, 1036. War Risk compensation barred by, 1500. DISOBEDIENCE: Accounting officers can not relieve officers from respon- sibiUty for, 239, 240. Medical treatment; refusal to submit to, 458. Nature of the offense, 980, 981. Punishment for. Navy, 979. negligence in obeying orders, Navy, 984. Refusal of officer to submit to surgical operation, 615, 616. Repeated offense, 1003. Violating or refusing obedience to general order issued by Secretary of the Navy, 985. DISRATING: Incompetency; siumnary court-martial's power, 1007. DISRESPECT: Punishment for, Navy, 984. DISTINGUISHED CONDUCT: Advancement of naval officers for, 453, 454. Conflict with the enemy, thanks of Congress for, 736. Enlisted men in battle, 1275. Marine officers advanced for, 921. Medals for, 512, 1275, 1402, 1521-1523. DISTRESS: Naval vessels assisting distressed navigators, 775. estimates and appropriations for, 1103. DISTRICT ATTORNEYS: Attorney General to supervise and direct, 323. ('ompensation for examining titles, 294. Duties; prize cases, 1139. titles to public property, 283. Removal by President, 365. Services performed for executive departments, 222. Special counsel employed to assist, 324, 325. DISTRICT OF COLUMBI.l: See Seat of Government. Advertising in, 1123, 1187. Buildings — Executive departments may rent others instead of ones occupied, 1187. Owned by Government; reports to Congress con- cerning, 1553. Rented; reports concerning, 1218, 1391, 1543. specific appropriation required, 1181, 1182. Courts of; Federal employees witnesses before, 416. requiring assistant head of department to give testimony, 422. DISTRICT OF COLUMBIA-Continued. Deeds to land in, acknowledgments in Guam, Samoa, and Canal Zone, 1291, 1292. Departmental books transferred to public library of, 1280. Employees of, not officers of the United States, 415. Fuel— For departments in; purchase and storage, 1507. advance deliveries of, 1553. For naval establishment in, 15C0. Yards in; trucks to be used for other hauling for Government, 1553. Laws of, applicable to public buildings, 332. Office space in, controlled by Public Building Com- mission, 1524, 1525. Register of wills to prepare guardianship papers without charge, 1217. Subsistence of officers and employees traveling outside of, 1394, 1398. DIVINE SERVICES: Chaplains to conduct on Sunday, 979. DIVISION OFFICERS: Ensigns: duty as, 704. DIVISIONS: Commanding officer of may convene general court- martial, 1442. DOCKAGE: Estimates and appropriations for, Navy, 110!. DOCKS: Transfer of floating dry dock from one na\y yard to another, 779. DOCTORS: See Medical Corps. DOCUMENTARY EVIDENCE: Affidavits not admissible before court of inquiry, 1050. Copies of consular records, 429. of court-martial records, 1036. of departmental records, 424, 426, 427, 428, 1009, 1010, 1023. Court of inquiry— Admissibility of papers before, 1056. Proceedings admissible before court-martial, 131, 1056, 1057. Embezzlement cases, 428, 1330, 1331. Extracts from journals of Congress, 428. Handwriting, 1389. Papers illegally seized; whether admissible against accused, 1023, 1024. Transcript of Treasury Department records, 420, 427. Witness refusing to produce before naval court: punish- ment, 1310. DOCUMENTS: See Printing and binding. DOIVUCILE: Candidates for appointment as midshipmen, 750, 751. DOMINICAN REPUBLIC: Detail of naval personnel to assist; appointment to office under, 1502. DONATIONS: See Gifts. Civil service retirement and disability fund may re- ceive, 1540, 1541. DOUBLE JEOPARDY: See Jeopardy. DOUBLE SALARIES: Naval officers holding offices under South American Republics, 1556. Restriction on, 208, 1066-1071, 1177, 1411. DRAFT: Disbursing officers to present promptly for payment, 1100. 1614 INDEX. DRAFT— Continued . Liability of officers, merchant vessels, to service in time of war, 1249. Power of Congress to compel mUitary service, 47. DRAFTSMEN: Employment from naval appropriations restricted, 1281. DRAWING: Estimates and appropriations for. Navy, 1103. Professor of, Naval Academy, 771. DROPPED: Officers absent without leave or in confinement by civil authorities, 1010, 1012, 1503. failing to qualify for promotion, 729-734. DRUGS: Absence from duty caused by, 825, 1436. DRUNKENNESS: Absence from duty, naval personnel, caused by, 825, 1436. Naval officer unfit for promotion by reason of; dis- charge; pay, 1189. Punishable by naval court-martial, 984. DRY DOCKS: Transfer of floating, from one navy yard to another,779. DUELS: Sending or accepting challenge to fight, in Navy, 984. DUE PROCESS OF LAW: Decisions relating to, 123-126. Excessive bail, excessive fines, and cruel and unusual punishments, 125. Fair and impartial trial, 125, 126. Review of proceedings of trial court, 125. Self-crimination, ^25. DUTY: Absence from, without leave, or after expiration of leave, 985. Coal imported for Navy subject to, 140S. Culpable ineflBciency in performance of; j)unishment, Navy, 984. Extra- Imposed by commanding officer as pimishment, 1002. Police; summary court-martial may adjudge, 1007. Foreign war material for Navy imported free of, 1396. Importing in naval vessel goods subject to, 989. Questions of, are military questions, 932. Suspension from, by commanding officer, as punish- ment, 1002. Without troops; definition of, 702. DYING DECLARATIONS: Admissibility as e\'idence, 132. EDUCATIONAL INSTITUTIONS: Enlisted men detailed to, 441. Naval officers detaUed to, 435-441, 701, 1184, 1185, 1247, 1248. EFFECTS: Deceased naval personnel; disposition of, 786, 995, 1395, 1503. Lost in naval service — Decisions relating to, 269-274. Jurisdiction of accounting officers and Secretary of the Navy, 272. Reimbursement, 271, 1492-1494. Lost on vessels, 269. permanent appropriation for reimbursement, 1106. Transportation of, naval personnel, 1535, 1536. EFFICIENCY: Bureau of; assistance to be furnished to, 1469, 1470. Experts; restrictions on employment of, 1394. EFFICIENCY— Continued. Improvements suggested by civil employees; cash re- wards, 1514. Ratings, civil establishment, 1383. EIGHT-HOUR LAW: Contract provisions relating to, 1370, 1371. Government work, 1219, 1220. Laborers, workmen, and mechanics employed by or for United States, 1117. Suspension of, in national emergency, 1474. ELECTIONS: Army and Navy officers not to interfere with, 1079. Force at navy yard not to be increased Ijefore, 1180. Naval personnel's right to vote not restricted by criminal code, 1321. Offenses by naval officers in connection with, 1321. ELLIGIBILITY: See A ppointmentfi . EMBARGO: Shipments for United States not to be delayed by, in time of peace, 1198. EMBEZZLEMENT : Decisions relating to, 993, 997, 998. Definition of, 1329-1331. Disbursing officers and others; general provisions, 1329-1331. Evidence; records, etc., 1330, 1331. transcript from Treasmy records, 428. Indictment for, 1330. Loans by officers of Supply Corps, 497. Mail matter by postal employee, 1338, 1339. Money — Or property intended for naval service, 990, 1325. on prize; punishment, Navy, 994. PubUc or private, by public officer, 1331. Naval personnel; pubUc or private money or properly; insurrection, 1170. Postal funds by postal employees, 1344. Post-office property, 1337. Property, public or private, by public officer, 1331. Public money or property, 1328. EMERGENCY: Appropriations may be exceeded in case of, 1105. Authorized enlisted strength increased during, 1463, 1528. Coast and Geodetic Survey transferred to Navy dur- ing, 1479, 1480. Commandeering of vessels for naval purposes, 1467. Contracts made without advertising for proposals, 1109. Courts-martial, naval; how constituted during, 1494. Furlougbed enlisted men subject to recall during, 1436. Lighthouse Service transferred to jurisdiction of Navy during, 1456, 1457. Naval Reserve Force; active service during, 1443, 1447, 1452. precedence during, 1511. promotion during, 1510. Procurement of vessels during, by contract with owners, 1453. Retired enlisted men, active duty during, 1451. officers, active duty, pay and allowances, 1512, 1513. Suspension of eight-hour law during, 1474. Voluntary services may be accepted in case of, 1104. EMERGENCY FLEET CORPORATION: Restrictions on payment of lump-sum employees, 1491, 1492. Transfer of employees to and from departments, 1491. 1615 INDEX. ESniVENT: Coiuiuct ill battle, 734-736, 933. Domain; condemnalioii proceedings to obtain laud for buildings, etc., 1199, EIVIOLUIVIENTS: Deniiition, 827, 828, 892. EMPLOY: Definition, 206, 1250. E.\IPLOYEES: See Civil establishment. Compensation act, 1467-1469. Nurse Corps (female) not entitled to benefits of. 1500. Held to be officers, 413. E>IPLOYIVIENT: Definition, 1250. EXE^FY: See Battle; War. Confiscation of property, 40. Connict with; highly distinguished conduct; thanks of Congress for, 736. Defined. 892. Delivering messages from, 981. Flags of; collected by Secretary of Navy, 381, 790. Inhabitants in country of, 40. Intercourse with; punishment for unauthorized, 979. Seizure of vessels belonging to, 1477. YiekUng or striking flag to; punishment, Navy, 980 EXGINEER IN CHIEF: Appointment, 379. Title: chief of Bureau of Engineering, 670 671 ENGINEERING: SeeBureaiis; Chiefs of bureaus. Bureau of; name changed from Steam Engineering 1548. ^' ENGINEERS: Acting ensigns; appointment and promotion, 1435 1436. Additional numbers in grade- After promotion by selection, 1432. Retirement of, 1366. Appointment as chief of bureau, 379. Board to report upon repairs to vessels, 776. upon use of patented articles by naval vessels, 776. Cadet engineers, 768-770. Commissioned in the Navy for engineering duty only, lility of, 132. Embezzlement; records, etc., 1330, 1331. transcript from Treasury records, 428. Examining boards; court-martial proceedings con- sidered by, 718, 719. records of department, etc., considered by, 722, 723. statements submitted to, under oath, 723. Extracts from journals of Congress, 428. General provisions relating to, 421-430. Handwriting, 1024, 1389. Line of duty cases, 611-612. Moral unfitness for promotion, 627-628. Newly discovered; reopening of promotion proceed- ings, 616. Oral, before simimary courts-martial, 1006. Papers unlawfully seized, 123. Proceedings before congressional committees, restric- tion on use in criminal cases, 421. State laws and records, 429, 430. Summary courts-martial, to be given orally, 132, 1008. Territorial records and laws, 429, 430. Title to lands purchased by United States; expense of obtaining, 283. Transcript of Treasury Department records, 427. EXAMINATIONS: See Appointments; ExaminiJig boards; Promotion; Wit- nesses. Acting ensigns for promotion to lieutenant (junior grade), 1436. Advancement in rank of staff officers, 1473, 1481, 1482. Applicants for reserved list, 1392, 1393. Appointment — Acting chaplains, 1396. ensigns for engineering duty, 1435. Assistant paymasters, 470. surgeons, 462. Ensigns from warrant officers, 1277. Machinists, 1268, 1269. Marine Corps, 1270, 1461. Midsliipmen, 748. Nurses, female. Navy, 1303, 1304. Pay clerks. Navy, 1407. Pharmacists, 1420. Aviation officers, for promotion, 1439. Civil employees, 202, 780. Competitive — Appointments depending on result, 94. Assistant surgeons; held illegal, 465, 466. Candidates for machinist, 1268, 1269. Enlisted men for appointment as midshipmen, 1472, 1473. Marine Corps; to determine precedence of officers, 1462. Not authorized for promotion, 685. Warrant officers appointed as ensigns, 1277. Coastitutionality of statutes requiring, 709. Dental officers, for increased pay and allowances, 1421 Engineer officers, promotion, 1435. Ensigns for promotion to lieutenant (junior grade), 1190. EXAMINATIONS— Continued. Failure- Discharge; due process of law, 124. Former warrant and commissioned warrant officers, 1550, 1551. MoraUy, Navy, 597, 623, 630, 1189. Physically, Marine Corps; retired rank, 965. Navy; retired rank, 1366. selected officer retired with actual rank, 1433. Professionally, Marine Corps; loss of numbers, 1463. Navy; suspended from promotion, 729-734. selected officer thereafter ineligible for pro- motion, 1433. Reexamination, Marine Corps, discharge, 1463. Na\'y; dropped from service, 729-734. Retirement of officer, Navy, not recommended for promotion, 594, 911. Irregularities; courts without jurisdiction, 596. Machinists for promotion to chief machinist, 1314. Maruie Corps promotions, 707-709, 924-927, 965, 1270, 1463. Medical Corps; promotions, 1251. Midshipmen; deficiency; status, 751-755. final graduating examination defined, 687. Naval Reserve Force; appointment, 1445, 1451. eonflrmation, 1444, 1445. promotion, 1445. provisional rank, 1444. Oral or written, discretionary, 514. Pay clerks and acting pay clerks, for promotion, 1407. Pharmacists for promotion to chief pharmacist, 1420. Physical, Marine Corps, 707, 70**, 1463. President to prescribe for Marine Corps appointments, 1270. Promotion- Delayed; commencement of pay; rank antedated, 832-838. new physical not required, 709. Fatally defective, 616. Navy; facts once determined not reopened, 1183. mental, moral, and professional, 711-721. physical, 707-710. retirement of officer not recommended by both boards, 594. selected officers required to take, 1433. Not a trial, 629. Not sufficient for retirement, 601. Oral or written; discretionary, 514. Pay of officer undergoing, 709. Physical disability due to woimds in line of duty, 709. Reopening of proceedings; new evidence, 616. Seniority, 684, 685. Special for enlisted men rewarded for heroism, 614. Staff officers; required only for advancement in rank, 1481, 1482. Subject to, effect of, 834. Time of holding, 710, 711, 734, 834, 924. Revocation of President's action, 596, 630, 728, 734. Stafi officers for advancement, 708, 1473, 1481, 1482. required for advancement in rank only, 1481, 1482. Supervisory boards; examinations for promotion, 724. Supply Corps; promotions, 471. Temporary promotion: general law not applicable, 721. Warrant officers for promotion to commissioned war- rant officers, 1267. to ensign, 1277. 1620 INDEX. EXAj>UN1NG BOARDS: Acting chaplains for appointment as chaplain, 1396. Assistant paymasters, for appointment, 470. Approval of, by Secretary of the Navy, 1481, 1482. by President, 724-728, 1189. professional failure, Marine officer, 1463. Burden of proof, 720, 721. Candidate — For promotion, right to be present, 723. right to submit statement under oath, 723. Not to be rejected without public examination, 728. Waiver of right to appear before, 723, 728. Civil courts; no jurisdiction over, 728. Counsel for, detailed by Judge Advocate General, 723. Discharge of oflTicers found not qualified by, 124, 623, 630, 729-734, 1189, 1463. Evidence before; records of department, etc., 722, 723. Fatally defective, 616. Foreign stations, convening of, 1472. Form of report by, 728, 729. Judge Advocate General's duties relating to, 1186. Machinists for promotion to chief machinist, 1314. Marine Corps — Promotion, 924-927. how constituted, 1219. loss of numbers, officer found not qualified by, 1463. To determine precedence of officers, 1462. Naval Reserve Force; appointment and promotion; how constituted, 1445. Pay clerks. Navy; for appointment of, 1407. Proceedings not a trial, 629. Promotion — Navy, 711. candidate's right to appear before board, 723, 728. consideration of court-martial proceedings, 718, 719. duty of, to weigh evidence, 720. how constituted, 722. majority governs, 721. powers of, 722. record to be kept, 724. selection by board of naval officers, 1430-1433. Secretary of the Navy empowered to take action on proceedings of, 1481, 1482. Supervisory, 724. Questions of law before, 712. Record— Of officer considered by, 722, 723. President's action on finding, 724-728. Secretary of the Navy may act for President, 1481, 1482. Reopening of proceedings; new evidence, 616. Repairs to vessels; reports concerning, 776, 777. Revocation of President's action, 596, 630, 728, 734. Secretary of Navy to convene for examination of ap- plicants for reserve list, 1392, 1393. Statements under oath submitted to, 723. Suspension of officer found not qualified by, 729-734, 1433. Warrant officers for promotion to commissioned war- rant officers, 1267. Witnesses before; testimony recorded, 724. EXAaiPLE: Commanding officer's duty as to, 978, 979. EXCESSIVE: Definition; bids for naval supplies, 1114. Sentence, not void, 403. EXCHANGE: . See Embezzlement; Public property. Appreciation in value of foreign coin, credited to Pay, Miscellaneous, 1222. Public moneys, contrary to law, 1098, 1100, 13.30. postal employees, 1344. Quarters; agreement relating to, unauthorized, 702. Stations; officers not entitled to mileage when per- mitted to make, 844. EXCLUSIVE JURISDICTION: Lands purchased by United States, 282-284. Power of Congress over United States buildings, etc., 72. United States; crimes committed within, 1348-1351, 1353, 1354. laws of States applicable in Federal reservations, 1351. EXECUTIVE: See A id. Government not liable for illegal acts of, 79. Power — To establish regulations, 59, 82, 195, 784, 787. Vested in President, 77. Subordinate officers act for President, 78. EXECUTIVE DEPARTMENTS: See Appropriations; Attorney; Buildimgs; Civil estab- lishment; Claims; Contracts; Delegation of poivers; Details; Estimates; Heads of departments; Navy De- partment; Pay of civil establishmerU; Printing and binding; Public property; Records; Regulations; Re- ports. Accounting officers' action conclusive upon, 246-248. Accumulated documents; disposal of, 1234. Attorneys; notaries public appearing before, 1295. public officers or employees appearing before, 1333. "Branch " not synonymous with "department, " 192. Buildings — In District of Columbia; distribution of office space, 1524, 1525. Not to be draped in mourning, 1220. Owned by Government; reports to Congress con- cerning, 1553. Rented; authority to rent others instead of those occupied, 1187. District of Columbia; specific appropriation required, 1181, 1182. report to Congress, 1191, 1218, 1391, 1543. Business; delays in performing, 344. distribution of, 193, 209. monthly reports as to condition; extension of hours when in arrears, 1221. quarterly reports to President, 1221. Chief clerks, duties of, 209. to administer oaths of office, 1215. Claims; Attorney General may require information in suits, 220. Closing — Of, for deceased ex-official, forbidden, 1220. Onhohdays, 201. Constitutional authority for, 78, 83. Contingent funds not expended without written order of head of department, 1105, 1106. Contracts for stationery, etc., 1117, 1358. Courts' jurisdiction over business of, 345-348. Custody of property and records, 193, 194. Data furnished for Official Register of the United States, 1235, 1236. Deficiencies not to be incurred by, 1104, 1105, 1116, 1238, 1288. Definition, 191, 225, 331. 1621 INDEX. EXECUTIVE DEPARTMENTS— Continued. Definition of executive and judicial departments, 192. Details to, from outside District of Columbia; restric- tions on, 1188, 1290, 1291, 1384. Distribution of documents and other publications by , 1239. Fuel for use of, 1507, 1553. Ooneral provisions applicable to, 189-228. provisions applicable to public olTioers, 10G5-1073. Holidays, 201, 781, 782, 1194, 1198, 1220, 1221, 1224, 1263. Hours of business, 201, 1220, 1221. Investigations, administration of oaths, 217. Libraries to receive public documents, etc., 1240. Names and history of, 189. Officers of Navy not part of unless holding statutory positions, 213, 215. Offices not at seat of government, 191 . PoUtical contributions, 783, 1180, 1181, 1334, 1335. Records — Copies of for use in court, 426, 427. Students and others afforded facilities for study and research, 1275. Transferred to Na\-y Department, 1389. Regulations, authority to make, 193. Seal of— Affixed to commissions of officers, 1248. Counterfeiting, etc., 1489. Services performed or supplies obtained for another bureau or department; appropriations transferred 579, 1409, 1536. Stationery, etc., 1117, 1358. Students, scientific investigators, etc., afforded facili- ties of, 1275. Suspension of officer in, does not create vacancy, 215. Useless papers in buildings controlled by; disposal of, 1248. VoUmtary services not to be accepted, 1104. Witness, attendance secured in cases of pending claims, 219. EXECUTIVE ORDERS: Compilation of, fixing pay and allowances of enlisted men, Na\'y, 850-863. HoUdays estabUshed by, 1220, 1221. EXPATRIATION: Residence abroad, 140, 572. EXPENDITURES: See Appropriations; Accounts; Disbursing officers. EXPENSES: See Actual expenses; Travel; Witnesses. EXPERTS : -Accounting officers' jurisdiction as to payment of wit- nesses, 241. Civilian; restrictions on employment from naval ap- propriations, 1281. Employment of efficiency; restrictions on, 1394. Testimony of, 611. Witnesses, 412, 1025, 10.56. EXPLOSIVES: Inspection of by States, 49. Mailing of, punishment, 1342, 1343. Manufacture and possession in time of war restricted, 1492. Transportation of, 1345, 1346. on navigable waters, 1519. EX POST FACTO: Deflnition of, 74. EXTENSION: See Enlistment; Pay of Naval Establishment. Enlistments, 1381, 1476. honorable discharge gratuity and continuous service pay, 883-891. EXTENUATING CIRCUMSTANCES: Clemency recommended by members of naval court- martial, 10:54. Officer sued for illegal act, 56. EXTORTION: By informer, 1336. officials, 1329. EXTRADITION: Fees of witnesses, 416. Foreign; naval forces employed for protection of ac- cused, 1167. Persons in tiaxy, 107. EXTRA DUTY: Commanding officer may impose as punishment, 1002. Pay, Marine Corps; restrictions on, 1315. Summary court-martial may adjudge extra police duties, 1007. EXTRAORDINARY HEROISM: Advancement of marine officers for, 921, 933. of naval officers for, 453, 454, 734-736. Enlisted men rewarded for, 512, 1275, 1521-1523. Medals and Navy crosses in reward for, 512, 1275, 1402, 1521-1523. Officers advanced for, to be additional numbers in grade, 1289. Retainer pay. Naval Reserve Force, increased because of, 1450. Thanks of Congress; advancement in grade, 736. FACSIMILE: Signature of public officer, 351. FACTS: Mistake of; reopening of accounts for, 248-249. FALSE: .Vccoimts; naval personnel; insurrection, 1170. records, reports, etc., punishment for, 136S. .Vcknowledgments by officer authorized to administer oaths, etc., 1323. Certificates; punishment for, Navy, 990. or writings; punishment for offenses not otherwise specified, 1332. Claims against United States, 990. Impersonation of officer or employee, 1323. Muster; making or signing, or aiding, abetting, direct- ing or procuring, 985. Receipts; punishment for giving or receiving, 990, 1324. Records, etc., 1336, 1368. Report by mess treasvu-er; not fraud against United States, 902. Returns; naval personnel; insurrection, 1170. Statements; claims against United States; punish- ment. Navy, 990. FALSEHOOD: Punishable by naval court-martial, 984. FALSE IMPRISONMENT: See A rrcst. FAMILIES: Officers— And enlisted men: transportation furnished, 1535, 1536. and nurses; pasonent of death gratuity to, 1547. FEBRUARY: Compensation during month of; how computed, 1297. FEES: See Witnesses. FELONIES: At sea, power of Congress, 38. Definition of, 1355. FEMININE: Masculine includes, in construing Federal statutes, 185, 1355. 1622 INDEX. FIDELITY: Honorable discharge, testimonial of, 573. Leave of absence reward for, 574. nGHTS: Films and pictures of prize fights, 1371, 1372. FILES: Useless, at navy yards and stations, 1301. in buildings under control of departments, 1248. in executive departments, 1202, 120:3. on board naval vessels, 1381. FILING DE\aCES: Public Printer to furnish to departments, 1278. FILMS: Prize fights, 1371, 1372. FINE ARTS: Coramission created; duties, etc., 15.59, 1560. FINES: Courts-martial authorized to adjudge, 990. Imprisonment imtil payment of; court-martial sen- tence, 1063, 1064. Naval courts-martial: use of for expenses of prisoners, 1313. hospital fund to be credited with, 1159. FIRE ENGINES: Estimates and appropriations for. Navy, lia3. FIREMEN: Enlisted men serving as; additional pay for, 878. Rating of coal passer changed to, 1423. FIRST LIEUTENANTS: Army: lieutenants (junior grade) rank with, 662. Marine Corps; number of, 1458. Na^•y; detail of officers to duty as, 577. FISC.\L AGENTS: London; account of Navy Department with, 1222 FISCAL YEAR: Accounts to be settled within, 259. Apportionment of appropriations to avoid deficiencies during, 1104, 1105. Commencement of, 257. Estimates for, 1102. Expenditures from appropriations after, 1107. FISH COMMISSION: To be aided by heads of departments, 1133. Vessels of; relation to Navy Department, 1186. FLAG OFFICERS: Definition of, 513, 514, 576, 577. Medals of ionor to enlisted men on approval of, 512. President may delegate power to award Navy crosses, 1522. Rank of; commanding officers of squadrons, 576, 660. FLAGS: Enemies'; collection of, 381, 790. Estimates and appropriations for, Navy, 110:5. Issued free of cost ; used for draping coffins of officers or enlisted men, i:397. National ensign; pennant of Naval Reserve Force not to be flown in lieu of, 1448. Pennant for merchant vessels commanded by members of Naval Reserve Force, 1448. Striking or attempting to strike, to enemy or rebel; punishment for. Navy, 980. FLAGSHIP: Surgeon of the fleet shall be surgeon of, 466. FLEET: Chief of Naval Operation charged with operations of, 1401. Engineer; appointment of, 499. assignment of line officers to duty as, 1435. pay, 792, 801. Medical stores; procurement of, 466. FLEET— Continued. Naval reserve; general provisions relating to, 1448-1451. Officers of, to have rank of admiral and vice admiral, 1481. Paymaster; appointment of, 474. pay, 792, 801. Surgeon; appointment of, 466. duties of, 466. pay, 792, 801. FLEET CORPORATION: See Shipping Board. FLOGGING: Prohibited in the Navy, 1034. FLORIDA: Timber lands in, protection of, 1088. FLOTILLAS: Commanding officer of may convene general court- martial, 1442. FLOUR: Purchase of for Navy, 1115. FLYING CORPS: Additional to authorized strength. Navy, 1478. Allowances not increased for aviation duty, 1513. General provisions relating to, 1437-1441. Naval Reserve Force, 1454. FODDER: Transportation for Navy, American vessels, 1283. FOOTNOTE: Effect of as regulation, 1064. FORAGE: Army, furnished naval officers cooperating with, 433. Marine Corps; conxmutation not paid, 1194. Naval officers not allowed, 1267. Purchase of in excess of appropriations, 1116, 1288. FOREIGN: Almanac offices; exchange of data with, 1382, 1383. Coin; appreciation in value of, credited to Pay, Mis- cellaneous, 1222. Courts; depositions for use in, 424. Hydrographic surveys, 1106, 1237. Law; Attorney General will not render opinion con- cerning, 299. Relations; neutrality; espionage, etc., 1482-1490. political questions; jurisdiction of courts, 104. Squadrons; stores furnished to, 579. SuppUes — Purchase of for Navy in emergencies, 1396. Purchase of hemp for Navy, 1115. United States articles preferred for Navy, prices, etc., considered, 1115. Vessels; transportation of Navy coal in, 1408. FOREIGN COUNTRY: See Neutrality. Appropriation for obtaining information from abroad; accounting for expenditures, 1417. Bad-conduct discharge not to be executed in, 100(i. Claims for damages caused by American forces to pri- vate property in, 1504, 1508. Contracts made to be executed in, 1114. Correspondence with, criminal, 1317. not to be sold or destroyed with useless papers, 1381. Coimsel for naval officer in, 223, 224, 321. Court-martial convened in, 65. Death of officer in; funeral expenses, 905, 906. Decorations, etc., of United States may be conferred on military forces of, 1517. presented to American officers, 75, 1187, 1516. unauthorized wearing of; punishment, 1515, 1516. wearing of, by American officers, 1187, 1516. Defined to include high seas, 905. 1623 INDEX. FOREIGN COUNTRY— Continued. Detail of naval personnel to, 576, 1399. 1410, 1.502, 15,50. Enforcement of United State."! laws in, 69, 70. Extradition from; use of naval forces to protect ac- cused, 1167. Jurisdiction over United States vessels, 67. Lauds acquired in, by United States, 286. Laws of, violated by naval oflTicer, 121. Naval Academy students admitted from, 743, 1294. GflBce in — ' Acceptance by naval personnel, Brazil, 1399. Dominican Republic, 1502. Haiti, 1416. South American Republics, 1556. Acceptance by United States officers, 75. Postal arrangements with, 329. Retired officers residing in, 572. Sale of war supplies, lands, buildings, etc., to Govern- ment of, 1516. Uniforms of, punishment for unlawfully wearing, 1515, 1516. FOREIGN PORT: Abandoning mariner in, 1352. Discharge of enlisted men in, 555, 556, 1006. Naval officer empowered to act as consul in, 575. Naval vessels in; bills of health and quarantine ex- penses, 1103. Witnesses transported from, to United States, 420, 576. FOREIGN SHORE DUTY: Advances to naval officers ordered to and from, 838, 1472. Brazil, 1399. Dominican Republic, 1502. Haiti, 1416. Pay of — Marine Corps, 941, 948, 1275. Naval officers, 818-821, 1275, 1302. under personnel act, 1267. South American Republics, 1556. Warrant officers, Marine Corps; pay, 1474. Navy; pay, 1529. FOREIGN STATION: Acting paymasters, pay of, 839. Advances of pay to persons in naval establishment, 838, 1472. Appointment of disbursing officer abroad, 788. Civilian storekeepers appointed for, 533. Convening of examining and retiring boards, 1472. Definition, 1472. Deprivation of shore liberty on, by summary court martial, 1006. Government transport to be used for transportation of families to and from, 1536. Pay of storekeepers on, 846, 847. Pro\'isions and stores, Navy; estimates and appro- priations for, 1103. Purchase of supplies; consular certificate required as to prevailing prices, 1114. without advertising, 1113. Storekeepers, naval officers detailed for duty as, 579. FORESTS: Use of earth, stone and timber by Na\'y, 1409. FORFEITURE: Absence without leave; pay of persons in service of United States, 1297. Citizenship; desertion law not bill of attainder, 7.3-74. power of Congress to provide, 140. rights by desertion in time of war, 1077, 1078. Contractors; double contract price for nonperformance, nil. liquidated damages, 1113. FORFEITURE-Continued. Deposit accompanying proposal for purchase of naval vessel, 1192. Desertion; amount credited to naval hospital fund, 1273. Imposed by naval courts-martial; used for expenses of prisoners, 1313. Pay- Absence due to misconduct, 825, 1436. Deck courts may adjudge, 1308. Enlisted men. Marine Corps, 950. Navy, 869-871. Naval officers; sentence of court-martial required, 820.1436. Retainer pay, Naval Reserve Force, 14.50, 1451, 1546, 1.5.52. FORGERY: Bonds, public records, or other writings, 1322. Deeds, powers of attorney, receipts or other writings, 1322, 1323. Discharge certificates, naval ser\ice, 569, 1473. Having forged papers in possession, 1323. Money orders or signatures thereon, 1343, 1344. Seal of executive department or naval pass or permit, 1489. Signatures in coimection with claims against United States; punishment. Navy, 990. FORMER JEOPARDY: See Jeopardy. FORMS: Accounts — Navy Department expenditures, 1102, 1103. Of public moneys, 1097. Prescribed by Comptroller of the Treasury, 1224. Advertisement, sale of naval vessels, 1192. Affidavit to contract returns, 1119. Annual reports, 1239. Application for writ of habeas corpus, 404. Appropriation bills, 1290. Bonds, 481-484. Bonds: departure from statutory requirements, 483, 484. special disbursing agents, 1095. Certificate of indebtedness against officer losing public property, 1223. Charges and specifications, 1027. Claims for compensation, civil employees injured in service, 1468. lost or damaged property, naval persoimel, 1493. Commissions of officers, 217, 1248. Contracts— Eight-hoiU" provision, 1370, 1371. Navy: shall provide a lien in favor of Government, 1369. Printed blanks to be furnished officers making, 1119. Returns for filing in returns office, 1119. Shall require delivery of specified quantity, 1114. Stipulation that Members of Congress have no interest, 1118. Writing required: signatures, 1118, 1119. Court-martial sentence; certainty required, 1064. Deck-court records, what to contain, 1309. Enlistment, 555, 556. Estimates of Navy Department, 1102, 1103. pay of the N&vy, 1312. special or additional, 1469. submitted to Congress. 1101, 1102, 1290, 1315, 1385, 1391, 1.392. Examining board's report, candidate recommended for promotion, 728, 729. 1624 INDEX. FORMS— Continued. Guarantee required to accompany proposals for naval contracts, 1112, 1113. Honorable discharge, Navy, 569. Money requisitions on Treasury, 1104. Oath of office, 328, 748, 1065, 1066; Orders assigning officer to duty as flag officer, 577. to shore duty, naval officers; recitals in, 1191, 1218, 1219. Power of attorney; prosecution of claims against United States, 1093. Public Printer to furnish to departments, 1278. Requisition for printing and binding, 1239. printing; signed by chief of the department, 1238. Resolutions, 187. Return to writ of habeas corpus, 405, 406. Reviewing authority's action in court-martial cases, 1040-1042, 1052. Selection board's report, 1433. Senate's confirmation of nomination, 735. Statutes, 187. Subpoenas, 425. Summary court-martial proceedings, 1009, 1311. FORNICATION: Punishment for, 1354. FORTIFICATIONS: Injuries to, 1327. FORWARD WARRANT OFFICERS: See Vt'anant officers. Promotion of enlisted men to, 512. FRACTIONS: Computation of officers in any corps, grade or rank, 1428, 1429. in Marine Corps, 1458, 1459. FRANKS: See Penalty envelopes. FRAUD: Against United States, 990, 991. Claims against United States, 990, 1324. for wages, etc., 1323. Contracts; duty of head of department, 352. Discharge obtained by; revocation of, .568. False reports by mess treasurer, not fraud against United States, 902. Invalidating appointment to office, 96. Investigation of, 217. Making or signing false muster or aiding, abetting, directing or procuring, 985. Punishable by naval court-martial, 984, 990, 991. FRAUDULENT ENLISTMENT: Death before discovery of; payment of gratuity, 554. Discharge of minor on request of parents, 1402, 1403. Marine Corps, 409, 996, 1000, 1222. Minors; not void but voidable, 550, 551. Navy, 407-409, 996, 1000, 1222. Not a defense to desertion, 977. Offenses during, punishable by court- martial, 62. Pay of enlisted men. Navy, 874. Prohibited classes, void and not voidable, .552. Punishment, 996, 1000, 1222. Voidalsle; court-martial jurisdiction, 977. Void; court-martial jurisdiction during, 976. FREIGHT: Estimates and appropriations for freight and trans- portation, 1102. Excessive charges by American vessels for naval supplies, 1283. Transporting on naval vessel, 985. FUEL: See Contracts. FUEL— Continued. Alaskan coal; preference right to purchase for Army and Navy, 1307. District of Columbia — executive departments, 1507, 1553. general provisions not applicable to Naval Es- tablishment in, 1530. Naval hospital in, 1530. Estimates and appropriations for. Navy, 1103. Navy; purchase of, in excess of appropriations, 1116, 128S. Purchase of vessels for transportation of, 1482, 1515. Sale of, to officers, 943, 951. to volunteer patrol squadrons, 1455. FUEL AND TRANSPORTATION: Appropriation available for mining and transporting coal in Alaska, 1547. Appropriation available for purchase of vessels, 1482, 1515. Use of appropriation, 1407. FUGITIVES: From labor or service; naval forces not to return, 994. FUNDS: See Public moneys. Civil service retirement and disabiUty fund, 1540, 1541. Clothing and small stores fimd created, 1204. Fines and forfeitures; naval courts-martial; expenses of prisoners paid from, 1313. Midshipmen's store, 770. Naval hospital fund, 1159, 1160. Naval pension fund; 1153,1154. Naval supply account fund; creation of; charges and credits; amount of, etc., 1557. Navy petroleum fund; use of, 1399. Small stores fund created for Navy, 1184. FUNERAL: See Burial. Enlisted man furloughed without pay, 906. Estimates and appropriations for expenses, 1103. Expenses, naval personnel, 905, 906, 149S. Flags issued free of cost; used for draping coffins, 1397 Payment of claims for, from amounts due deceased naval personnel, 1305, 1306. FURLOUGH: Disabled soldiers, sailors, and marines under treat- ment; reduced railroad fares, 1554. Enlisted men, additional to authorized strength, Navy, 1478. burial expenses, 906. clerical duty at marine headquartres, 1474. hospital treatment, 903. in lieu of discharge by purchase or special order, 1436. pay on recall to active duty, 890, 891. status, 537, 871, 872, 906. not troops of United States, 1180. Officers; by Secretary of the Navy, 5S3, 826. by Secretary of the Navy, as measure of economy, 826, 827. may be placed on, if not dismissed by court- martial sentence, 583. Retirement distinguished from, 583. FURLOUGH PAY: Amount of; officers of Navy, 826, 827. Officer detailed to ocean mail vessel, 1217. Retired officers, 910, 915. transferred from, to retired pay list, 916. Retirement of marine officers on; illegal, 622, 968. of Navy officers on, authorized, 617. FURNITURE: Contracts for, not to exceed appropriations, 1116. 1625 INDEX. FUR SEALS: Use of naval forces to protect, 1387. GAMBLING: Punishable by naval court-martial, 984. GARBAGE: Proceeds from sale of, 232, S99. GARXISHMENT: Retirement annuities, etc., civil employees, 1543. Wages of enlisted men, .')73, 574. GASOLINE: Sale of, to vessels of volunteer patrol squadrons, 1455. GENERAL: Account of advances; authorized for the Navy, 1183. Admiral ranks with, GtiS. Admirals to have same allowances as, 1512. Amnesty, power to grant, 85, 86. Board; creation of, 3.57. Location of armor plants, 1419. Retired oflicer on duty with, 1 137. Inspector of Supply Corps; duties of, 1304. Orders; violating or refusing obediciuc to, 985. Supply Committee, computing machines sold to de- partments at exchange prices by, 1557. procurement of supplies for executive depart- ments, 1358. repair of ts^pewriters by, 1557. typewriters sold to departments by, 15.")7. GENTLEMAN: Conduct unbecoming officer and, punishment. Navy, 998-1000. GERMANY: Termination of war with; date fixed for certain pur- poses, 1557-1559. War with, effect of termination on insurance under war risk act, 1501 . effect of termination on war risk compensation, 1498. GESTURES: Provoking or reproachful, use of, toward other persons in Navy, 984. GIFTS: See Public property. Acceptance of, by Secretary of the Navy for naval ves- sels, 1305. Civil service retirement and disability fund may receive, 1540, 1541. Lands acquired by United States, 285. Superior officials not to accept, 1073. GOLD: Disbursements to be made in, 1100. Transporting on naval vessel, 985. GOOD CONDUCT: Medals, additional pay for, 866. Retainer pay, Naval Reserve Force, increased because of, 1450. GOVERNMENT FUEL YARDS: District of Columbia; storage and purchase of fuel for departments, 1507. trucks to be used for other hauling for (iovernment, 1553. GOVERNMENT HOSPITAL FOR THE INSANE: See St. Elizabeths Hospi/al. GOVERNMENT PRINTING OFFICE: See Printing and binding. GOVERNORS: Applications for naval equipment to be used by mili- tary schools, 1277. GRADES: Chiefs of bureaus; whether office is a grade in the Navy, 366, ;«>7, 379. Commander; exists only in line, 378, 507, 779. GRADES—Continued. Defined, 681, r,s2, 779. and distinguished from title, rank and office, 449, 450, 683. rank distinguished, 378, 499, 577, 6.35-638, 682, 686. synonymous with rank, 379, 466, 678, 680, 907. Line officers, designations of, 447. Marine Corps officers, 917, 918. Number of officers exceeded, 736. Provisional, Naval Reserve Force, 1444. Retired officers, 631. Secretary of the Navy may establish, for enlisted men, 1552. GRADUATES: Naval Academy; precedence, 687. GRADUATION: Date of, 688. Definition of, 687. GRAND JURY: Constitutional provision relating to, 118, 119. Court of inquiry analogous to, 1055. Government employee witness before, 416. GRATUITY: Death of naval personnel, 1546, 1547. not applicable to persons in service on or after October 6, 1917; 1500. payment in case of deserter who fraudulently en- listed, 554. payments by Paymaster General, Navy; juris- diction, 233, 234. Honorable discharge, 883-891. enlisted men. Marine Corps, 947. Jurisdiction of accounting officers, 245. Medal-of-honor men allowed, 512, 1275. Naval prisoners paid, on discharge, 1310, 1311. One year's pay to oflTicer wholly retired is not, 621. Reimbursement for effects lost is not, 272. Uniform, Naval Reserve Force, 812, 813, 1510. not checked on temporary appointment to Navy, 1510. not reduced by appointment to office in, 1444, 1451. War-risk compensation not allowed in addition to, 1499. GREAT LAKES: See Regattas. Loan of naval equipment to military schools bordering on, 1277. Rules for preventing collision, 1240-1246. GUAM: Acknowledgment of deeds in, 1291, 1292. Census to be taken by governor, 1525. Citizenship in, 113. Civil employees; pay while in transit, 1278. Governor commissioned by President, 102. Governor's certificate as to acknowledgments in, 1291, 1292. Military government of, 109. governor's powers, HI. Passengers transported to, by Army transports, 1298. Port in, is not port of United States, 112. Secretary of the Interior, jurisdiction relating to, 395. Shore duty in; additional pay allowed, 1275. Status of; unorganized territory, 113. GUARANTEE: Contracts; contractors and bidders required to furnish, 1111,1112. GUARANTOR: Contract damages charged to delinquent bidder and guarantor, 1112, 1113. GUARD: Military; shooting prisoner, 57, 403. 1626 INDEX. GUABDIAXS: Consent of; enlistment of minors, 548-551, 994. enrollment in Xaval Reserve Force, 1546. Insane persons; payment of pensions, 789. Minors applying for enlistment; papers for appoint- ment of, prepared witliout charge, 1217. statement required as to age, 1402, 1403. GUILTY: Evidence after plea of, court-martial, 1024. GUNBOAT COOUSSIOX: See Recess appointments. GUN CAPTAINS: Enlisted men, Na\^; additional pay, 866. GUNNERS: See Warrant officers. Duties; may be required to act as keeper of tlie maga- zine, 533. GUNNERY SERGEANTS: Pay, allowances, ranli, retirement, etc., 1383. Rank and aUowanee of first sergeants, 1271. GUN POINTERS: Enlisted men, Is'a%-A', additional pay, 866. GUNPOWDER: Navy, purchase without advertising, 1113. GUNS: Loan or gift of condemned, to societies and municipali- ties, 1249. Sale of, 1516. SUN STEEL: Advertising required for purchase. Navy, 1223. HABEAS CORPUS: Allowance of; to whom directed, 404. Appeal from decision in, 409. Arrest of petitioner after discharge, 409. Attorney General instructs district attorneys concern - ing, 324. Body of prisoner to be produced in court, 407. Definition of, 72. Form of application for writ of, 404. return to writ, 405, 408. Fraudulent enlistment cases, 407-409. General provisions relating to, 399-409. Hearing; date of, 407. Hearing; summary; disposition of party, 407. Inquiry into matters not of record, 129. Issues of fact, 407. Jurisdiction, civil courts; cases tried before courts- martial, 128, 401-403, 1047-1051. Federal courts in arrests by State authorities, 51, 52, 53. over persons in Navy, 54. State courts, 53. Naval officers; duty when served with writ, 405. under nominal arrest, writ not granted to, 1029. Refusal to obey; punishment; contempt of court, 405. Return to writ; amendments in, 407. Secretary of the Navy does not have custody of prison- ers, 404. Suspension of privilege, 72. Time allowed for return, 405. Writs of, explained, 400. HAITI: Detail of naval persoimel to, holding offices in, etc., 1410. HANDWRITING: E\-idence of, 1024, 1389. HARBOR: See Regattas; Rules of the road. Commissioners; collection of toll from United States, 50. New York; naval officer as supervisor of, 1198, 1199. HARBORING DESERTER: Definition of, 790. Punishment for, 789, 790, 985, 988, 1326. HARD LABOR: Authority of courts to impose; criminal code, 1355. Naval courts-martial may sentence to, 983, 984. HAULING: Secretary of the Interior, for other departments, 15.53. HAW.UI: Census taken of, 1525. Civil employees: pay while in transit, 1278. Pearl Harbor; rules governing navigation, anchorage, etc., 1382. Status of, as territory, 1075. H.4ZING: Brutal or cruel: punishment, 1287. Definition, 1287. Pimishment, 752, 757-759, 1178, 1286, 1287. Rules to prevent, 1281 . Single act of; midshipman not subject to dismissal without court-martial, 12.SC. HEADS OF DEPARTMENTS: See Delegation of powers; Estimates; Executive depart- ments; Xavy Department; Oaths; Regulations; Re- ports; Secretary of the Navy. Accounting officers' jurisdiction with relation to, 236- 244, 246-248. Act for President, 78, 191. Action on reports of chief clerks, 209. Appeals from, 83. to, 79, 362. Appointment of civil employees, 205. of special disbursing agents, 1095. imder previous administpation; qualifications not open to re\'iew, 96. Assistants, authority, 213. authority and signature of, 194. authority, judicial investigation concerning, 422. Attorney General may require information from, 220. Attorney General's opinions required by, 295. Attorneys not to be employed by, 221. Bonds may be demanded by, in absence of statute, 211, 476. Certificate accompanying applications for retirement of civil employees, 1540. Claims; not authorized to submit estimates for pay- ment, 235. Commissioner of Fisheries to be assisted by, 1133. Commission to take testimony of, 422. Contingent funds; expenditures require written order of, 1105, 1106. Com-t of Claims may call on, for information and records, 1364, 1365. Courts desiring evidence or records of, 194. jurisdiction as to appointment and removal of employees, 338. jurisdiction to subpoena as witnesses, 424. jurisdiction with relation to, 345-348. requiring assistants to testify, 422. Data furnished by, for Official Register of the United States, 1235, 1236. Death, resignation, absence or sickness of, 212, 214. Decisions, Attorney General will not review, 302. binding on successors, 348, 349. binding on successors; but only as to specific case decided, 349. not binding on courts, 348. of accounting officers may be obtained by, 1225. Deficiencies proliibited; removal from office for viola- tions, 1104, 1105. 54641°— 22- -10.3 1627 INDEX. HEADS OF DEPARTMENTS-Continued. department of Justice to afford all legal services for, 323. Evidence to be furnished Attorney General concerning title to lands, 2S3. Extra compensation disallowed for temporarily per- forming duties of, 217. Hours of labor required of civil establishment, 1220, 1221. Information furnished to Bureau of AVar Risk Insur- ance, 149."), HOC). Leave of absence granted civil establishment, 1221. Mandamus proceedings against, 79. May use force to prevent removal of records, 194. Newspaper advertising, written authority required for, 1124. Opinions required by the President, 83. Pardoning power exercised by, 85. Printing of annual reports: certificate required as to matter embodied in, 1239. of reports from bureau chiefs; discretionary, 1238. requisitions to be signed by, 1238. Records, useless papers, disposal of, 1202, 1203. Regulations not binding on, 200. prescribed by, 193, 1223. Reports by, as to condition of business, 1221. to, as to condition of business; action taken when in arrears, 1221. Requisitions for printing and binding made by, 1239. report to Congress concerning, 1231. Responsibility for official acts; decisions relating to, 78,79,350,351. .Salary of, 193. Signature, what constitutes, 351. Smithsonian Institution to be assisted by, in acquisi- tions for Zoological Park, 1204. Subpoenaed as witness, 79. Temporary vacancy, how filled, 99, 212, 214. Written action of, required to waive apportionment of appropriations, 1105, 1384. Written certificate as to necessity of periodicals, 1408, 1409. HEALTH: See Disease. Accused before summary court-martial: punishment dependent on, 1009. Bills of, expenses and appropriations for, Navy, 1103. Crews of naval vessels: duties of commanding officer and surgeon, 995. Fleet surgeons required to make reports to Na\'y De- partment, 466. State authorities can not require reports from navaJ officers, 49, 50, 461. HEARING: Officer entitled to, before retirement. Navy, 622. HEAT AND LIGHT: Accounting officers' jurisdiction, 234. Allowance for quarters , 696, 827, 943. Civilian professor at Naval Academy, 701. Sale of fuel to officers, 943, 951. Warrant officers: allowance for, 1430. Young Men's Christian Association buildings in na^^r yards, 1366. HELIUM: Right of United States to extract from gas produced by leased lands, 1532. HELPERS: Enlisted men, additional pay as ship's helpers, 866. HEMP: American growth or manufacture preferred, 1115. HEROISM: Advancement of naval officers for, 4.^3, 454, 734-736. Enlisted men; reward for, 512, 1275, 1521-1523. Marine officers, advancement, 921, 933. Medals and Navy crosses in reward for, 512, 1275, 1402, 1521-1523. Officers advanced for, to bo additional numbers in grade, 1289. Retainer pay. Naval Reserve Force, increased because of, 1450. Thanks of Congress; advancement in grade, 736. HIGH SEAS: Commanding officers. Navy, may exercise consular powers upon, 575. Foreign country defined to include, 905. International rules for preventing collisions, 1204-1215. HISTORICAL RECORDS: Alteration of, veto of bill requiring, 35. HOLIDAYS: Closing of departments on, 201. for deceased ex-officials, forbidden, 1220. Days declared to be, 781, 782, 1224. Excluded from leave of absence, employees in de- partments, 1263. Executive order declaring, 1220, 1221. Hours of labor in executive departments, law not applicable to, 1220, 1221. Per diem employees, days allowed, 1194, 1198. Regulations governing pay on, 787. Sundays; following day observed, 782. Suspension of work for part of day by Executive order, 782. HOME: Commutation of quarters for officer at, 700. Enlisted men on receiving ship, after discharge, 1201, 1202. Naval; establishment of , authorized, 1159, 1160. Port, change of, deemed a permanent change of sta- tion, 1536. Residence not synonymous: definitions, 876. Transportation to; enlisted men on discharge, 1274, 1275, 1415. Yard, naval vessels; permanent station defined to include, 1536. HOMESTEADS: General provisions relating to, 1083-1087. HOMICIDE: See Manslaughter; Murder; Suicide. Jurisdiction of, committed on naval vessel, 66, 67. Murder may be charged as manslaughter, 67. ResponsibiUty of military guard committing, 57, 403. Trial of, by consular court, 69. HONOR: Commanding officers to show example of, 978. HONORABLE DISCHARGE: See Discharge. Gratuity, 883-891. enlisted men. Marine Corps, 947. Navy, under personnel act, 1269. HORSES: Army; fiu-nished naval officers cooperating with, 433. Estimates and appropriations for purchase and main- tenance, Navy, 1103. Inspection by State authorities, 50. Restrictions on use of by public officers, 1281. HOSPITAL CORPS: Detailed with marines detached for service with Army: jurisdiction, 1421. Enlisted men: additional to authorized strength, 1478. transferred to and from, 555, 557, 567, 1420. 1628 INDEX. HOSPITAL CORPS^Continued. Hospital service performed by, 1420. Number of enlisted men increased, 1416. Organization; enlistments, appointments and promo- tions: pay, duties, etc., 1262, 1263, 1419, 1420. Part of Na\Tr Medical Department, 1420. Pay, 847. HOSPITALS: See Naval hospitals; Naval hospital fund; St. Elizabeths Hospital. General provisions relating to, 1159-1163. Insane; St. Elizabeths, in the District of Columbia, 1161-1163. Ration allowance of inmates, 898. Treatment of men after expiration of enlistment, 903. furloughed without pay, 903. HOSPITAL SmPS: Command by medical officers, 703, 785. Nurse Corps, female, eligible for duty on, 1303, 1.304. HOSPITAL SUPPLIES: Procurement of, for fleets and squadrons, 466. Purchase of, in excess of appropriations, 1116, 1288. HOURS : Contracts provisions relating to eight-hour law, 1370. Eight-hour law, 1117,1219, 1220, 1370. Executive departments, 201, 1220, 1221. Suspension of eight-hour law in national emergency, 1474. Work suspended by Executive order, 782, 783. HOUSEHOLD EFFECTS: Transportation of; naval personnel, 1535, 1536. HTDROGRAPHIC OFFICE: Attached to Bureau of Na^-igation, 387, 1236. Branch offices, 388, 1251. Detail ofnaval officers to, 389, 1508, 1545. Duties of, 387. Naval Obsers-atory and, 391. Foreign hydrographic surveys; use of appropriations; report of board, 1237. General pro^-isions relating to, 387-390. Jurisdiction of, and Weather Bureau, 388. Maps, charts and nautical books: prepared and sold at cost, 390, 1182, 11S4. Printing and engra^-ing for, estimates to be separate and in detail, 1197. Publications; number of copies to be printed, 1238. receipts from, covered into Treasury as miscella- neous receipts, 1543. Purchase of plates and copyrights of maps, charts, etc., 1236, 1237. Sale of maps, charts, nautical books, etc., 390, 1182, 1184, 1236, 1237, 1543. Super%ision of branch offices, 388. Wilkes's Expedition; plates loaned to Navy Depart- ment, 380. HTDROGRAPHIC SURVEYS: Coast of United States: employment of naval officers, 1151. Foreign, preparation and publication of; duties of Secretary of the Na\-y, 1106. use of appropriations for, 12.37. HTGIEXE BOARD: Interdepartmental, creation of, etc., 1517, 1518. HYPOTHETICAL QUESTIONS: Attorney General will not answer, 299-301. Secretary of the Nax-y will not decide, 349, 350. IDIOT: Insane person or lunatic includes, 185. ILLEGAL ACTION: Civilliability of commanding officer for, 1003. Congress may protect officers from responsibihty for, 57. ILLEGAL ACTION— Continued. Discharge illegal: court-martial sentence set aside, IOCS', 1009. Dismissal illegal; revocation of, 1011. Examinations for promotion, 616. President's action on retiring board: effect, 96>t, 969. Responsiliility of heads of departments for, 7s. • of officers for, 350, 351, 1003. Retirement illegal : revocation of , 596 . statusof officer, 641. Retirement of marine officer on furlough pay, 62!. of naval officer invalid, 587. ILLEGAL ORDERS: See Orders. Subordinate not bound to obey, 352. ILLUSTRATIONS : Restrictions on; annual reports and other publications, 1239, 1284. LVnnGRATIOX: Naval forces employed in enforcing laws, 1081. nOIUNHTY: Member of Congress, 33. OIPARTIAL TRIAL: Right ofaccused, 129, 131. OIPORTS: Coal for Na\-y, subject to duty, 1408. Dutiable goods in naval vessel, 989. Foreign war material for Na^-y> free of duty, 1396. Lottery tickets, etc., 1.346, 1347. Obscene books, etc., 1-347. EMPRIS ON'^IENT : See Arrest; Hard labor; Penitentiaries; Prisoners; Prisons. Beyond term of enlistment, 1064. Courts-martial authorized to adjudge, 990. Midshipmen, for brutal or cruel hazing, 1287. Naval officers dropped from rolls during, 1503. prisoners; allowances to during, 1310, 1311. Place of, designated by renewing authority, court- martial cases, 1064. Sentence to, until payment of fine, 1063, 1064. Witnesses: to insure appearance, 425, 426. OIPRO VEMENTS : Cash rewards to ci^^l employees for suggesting, 1514. Erected on lands leased by Navy; property of lessor. 1508. Jurisdiction over lands on which erected, 284. INADEQUATE: See Sentence. INAPTITUDE: Discharge of enUsted men for; refund of enlistment bounty, 1292, 1294, 1298. INCAPACITY: Definition of, 598. Retirement, 603. INCEST: Definition and punishment, 1354. INCIDENT OF THE SERMCE: See Line of duty. Incapacity due to; retirement, 603. Line of duty synonymous with, 005. Retirement, 617. burden of proof, 915, 916. Retirement, Marine Corps, 964. staff officers: rank, 687. INCO>IE TAX RETURNS: Oaths to, executed before naval officers, 218, INCOMPATIBLE OFFICES: Definition, 1069. Naval officer and draftsman in Hydrographic Office, 389. Vacancy created by acceptance of, 215, 989. 1629 INDEX. INCOMPKTEXCY: Summary court-martial may disrate for, 1007. INCREASE OF THE NAVY: Equipment outfits chargeaVile to "Increase of the Navy, construction and machinery, " 1108. INCRIMINATIOX: .^ee Self-crimination. INDEBTEDNESS: .\rrest for; marines exempt from, 9.35. Conduct unbecominK an officer, 025, 999, Enlisted man; discharge not delayed for, 560. attachment of wages, .'i7^, 574. effect of discharge, 567. transferred from Army to the Navy or Marine Corps, 555. travel allowance on discharge, regardless of, 876. Officer found not morally qualified for promotion be- cause of, 624, 625. Previous enlistment, 245. Private, United States not collecting agency, 199. Suit by United States to recover, 1072. Witliholding pay of delinquent officer, 1072. INDECENT: See Obscene. INDEMNITY: Enlisted men, for eflects lost on vessels, 1106. INDEX: Contracts; kept by returns office, 398. Public documents, to be published, 1234. INDIANHEAD: Jurisdiction of United States and Maryland, 294. INDIANS: Citizenship of, 137. IN'EFFICIENCY: Civil establishment; annual report of, to Congress, 1204. Civil establishment; dismissals, 1383. Culpable, in performance of duties; punishment, Na-\T. 9S4. Summary court-martial may disrate for, 1007. INFAMOUS: Crimes, 118. Punishments, 118, 134. INFERIOR: Officers; constitutional provision construed, 89-90. Petty officer entitled to obedience from, 525. INFLUENCING: Legislation; punishment, 1527. INFORMATION: Appropriation for obtaining, at home and abroad; accounting for expenditures, 1417. INHABITANTS: See Natives. Foreign countries; claims for damages caused by American forces, 1504, 1508. Insular possessions, status of, 113. Offenses against, on shore; punishment, Navy, 985. INJUNCTION: To prevent dismissal, 99, 338. INJURY': See Courts of inquiry; Death; Disability; Line of duty; Retirement; Veterans; War risk act. Absence due to, caused by misconduct, 825, 1436. Compensation for, naval personnel, 1498-1501. Defined to include disease, 1496. INLAND WATERS: See Regattas. Rules for preventing collision, etc., 1246, 1247, 1251- 1201, 1.356-1358. INQUESTS: -Vutopsics; authority of naval medical officers to per- form, 400, 401. Coroners; right to hold on United States reservations, 293. INQUIRIES: See Board of inquiry; Courts of inquiry. Expenses of, not allowed without special appropria- tion, 1105, 1316. INSANE: Defense before court-martial, 10.30, 1031. Defined, 185. Enlistment prohibited, 551, 994. Interned persons and prisoners of war; admission to St. Elizabeths Hospital, 1417, 1418. Naval personnel, commitment to hospitals, 788, 789. Pay and expenses of, confined in institutions, 788. St. Elizabeths Hospital in the District of Columbia 1161-1163. INSIGNIA; Acceptance of, from foreign State, 76. INSPECTION: Accounts, by general inspector of Supply Corps, 1304. Provisions on naval vessels; duties of commanding officer, 995. INSPECTION AND SURVEY: Naval vessels; board of naval officers, 1190. INSPECTORS: Fuel purchased for public service, 1110. INSTITUTIONS: Detail of naval officers to colleges, etc., 435. INSTRUCTORS: Naval Academy; number and compensation, 1457, 1535. INSULAR FORCE: Enlisted men, pay of, 863, 864. status of, 538. INSULAR POSSESSIONS: Additional pay fot shore duty, 1275. Employees, 782. leave of absence cumulative, 1417. pay for travel to and from United States, 1278. pay on holidays; regulations governing, 787. sale of stores to, 1313, 1314. Status of. 111. inhabitants, 113. Virgin Islands; temporary government, 1470-1472. INSURANCE: See liar risk act. INSURRECTION: Enlisting to serve against United States, 1318. General provisions relating to, 1169-1172. Inciting rebellion, etc., 1317. Mailing matter urging, 1489, 1490. Philippine; whether state of war, 272. Use of militia to suppress, 69. INTELLIGENCE: Giving to enemy or rebel; punishment for, Navy, 979. INTENT: Bonds; construction of, 481. Desertion; to remain permanently absent; commis- sioned officer, 989. Statutes; construction of, 10. INTERCOURSE: With enemy or rebel, punishment for, 979. delivering seducing messages, etc., 981. INTERDEPARTMENTAL SOCIAL HYGIENE BOARD: Creation of, etc., 1517, 1518. 1630 INDEX. INTEREST: Pay, miscellaneous, credited with, 1222. INTERIOR DEPARTMENT: Copies of contracts to be filed in returns office of, 1118, 1119. General provisions relating to, 395-398. Jurisdiction of Commissioner of Pensions and Secre- tary of the Navy, 1155. Returns office estabUshed in, 397. INTERNATIONAL: Agreement; marking and removal of derelicts and \VTecks, 1223. Law; jurisdiction of courts, 105. otienses against, power of Congress, 38. Helations; enforcement of neutrality; espionage, etc., 1482-1490. Rules for preventing coUision at sea, 1204-1215. INTERNMENT: Insane; admission to St. Elizabeths Hospital, 1417, 1418. Naval officers in neutral country; pay and allow- ances during, 892. INTERPRETATION OF STATUTES: See Statutes. General principles, 9-24. INTERPRETER: Not a witness, 412. INTERROGATORIES: See Depositions. Depositions, 219. INTOXICANTS: See Alcoholic liquors; Drunkenness. Absence from duty caused bj-; naval personnel, 1436. Board of Visitors, Naval Academy; expenses, 1197. Distilled spirits on naval vessels, admitted for medical purposes, 989. Mailing of; punishment, 1342, 1343. Midshipmen to be instructed as to the nature and effects of, 1194, 1195. Prohibition of, near miUtary camps, and to persons in uniform, etc., 1477, 1478. INTOXICATED PERSONS: Enlistment prohibited, 551. Penalty for enlistment of, 994. Punishable by naval court-martial, 984. INVENTIONS: See Patents. Applications for patents; Government interested, 1165. Patents obtained by officers of United States, 1192, 1193. PubUcation of, in time of war, restricted, 1494, 1501, 1502. Secretary of the Interior, duties relating to, 395. Use of, by Government, 1192, 1193, 1494. INVENTORIES: Department property, records to be kept of, 227. INVESTIGATIONS : Absence from duty of naval personnel; cause of, 1436. Boards may administer oaths, 217. Expenses of, not allowed, without special appropria- tion, 1105, 1316. Officers appointed to conduct, may administer oaths, 217. INVOLUNTARY SERVITUDE: Military and naval enlistments not prohibited, 136. IRONS: Abolished in Navy, except by sentence of general court-martial, etc., 1309. IRREGULARITIES: Acquiescence in, 604. Court-martial, 1020, 1033, 1045-1047. IRREGULARITIES— Continued. Examinations for promotion, ell'ect of, 596. Examinations for promotion; fatally defective, 723, 72S. Fatal defects distinguished; court-martial proceedings, 1045-1047. Investigation of, 217. President's action on retiring board, 968, 969. Retirement proceedings, 601, 602, 911, 912. IRRESISTIBLE IMPULSE: Defense of, before court-martial, 1031. JAPANESE: Citizensliip of, 139. Naval forces employed in preventing immigration of, 1081. JEOP.4RDT: Constitutional provision applies to Navy, 69. Court-martial proceedings bar to trial by civil court, 1047. Defined, 119. New trial by court-martial, 1047. Protection against double, 119-121. Punishment without court-martial not bar to trial 1004. JEWELS: Transporting on naval vessel, 985. JOINDER: Offenses; charges and specifications, 1028. JOINT FORCES: Army and Na\'y; command of, 443, 444, 668. JOURNALS: Of Congress; extracts evidence in court, 428. JUDGE ADVOCATE: Accused entitled to obtain opinion from, 133. Acting as counsel for accused, 133. Admissions by; what absent witness would testify, 1055. Authorized to administer oaths for purposes of naval administration, 1240. Counsel furnished by Department of Justice to assist, 222, 324. Court of inquiry, 1055. ' Duties, 1019. : Judgment signed by, 1034. ' Oath of, 1019. ■ Presence in closed court, 128. Quahflcation for service as, 222, 223, 1019, 1020. ResponsibiUty for truth of record, 1034. JUDGE ADVOCATE GENERAL: Army; jurisdiction of court-martial over, 62, 366. suspension of; how duties temporarily performed, 215. Assistant to, detailed from line of Navy or Marine Corps, 1418. Deck-court records to be reviewed by, 1309. Navy; coimsel for examining board detailed by, 723. court-martial proceedings; power to revise, con- strued, 1043. duties, 321, 359. » questions of law before examining boards, 712. office not different from bureau, 359. opinion must accompany request for Attorney- General's opinion, 309, 321. pay, 371, 1512. rank on retirement, 372-376, 673. rank, pay, and allowances, 1512. rations not allowed to, 897. retirement does not vacate office, 376. soUcitor in office of; investigation conducted by, 218. sued by officer for damages, 55. Supreme Court reports and digests furnished to, 1365. 1631 IXDEX. JUDGE ADVOCATE GENERAL— Continued. Navy; tcmporarj' rlerks in ofllce of, during sessions of Congress, Ml. Oflicc created; to be in Navy Department; duties; rank and pay; appointment, USO, 1187. Pay after retirement, 377. JUD(;MENT: See Discretion. Naval court-martial; authenticated by signatures of members and judge advocate, 1034. JUDICIAL: Code, 1HC>0-I36r>. Court of inquiry not, 105.'). Notice; authority of public officers, 213. State laws, 429, 430. Power; constitutional provision relating to, 104. Questions; .\ttorney (ieneral will not answer, 306. System; courts-martial not part of, 37. explanation of, 37. JUDICIARY: (ieneral provisions relating to, 399-432. JURISDICTION: See Accnunti/ig officers; Courts-martial. Accounting officers and courts, 235. and heads of departments, 2.36-244. and Secretary of the Navy, 198, 268, 272, 273, 566, 828, 829, 9a3, 1315. responsibility for loss of fimds, 1527, 1528. vaUdity of regulation, 838, 839. cause of incapacity, retired officer, 605. ships' stores profits, 13.59. Army and Navy aviation, defmed, 1554. Army, over naval personnel, 1544. Attorney General and Comptroller of the Treasury, 311-320. opinions binding on accounting officers, 318. supervision of litigation involving Government, 281. will render opinion where jurisdiction doubtful, 321. Civil authorities, persons in naval service, 65. courts with relation to courts-martial, 60, 128, 401- 403, 1001, 1047-1051. Claims for effects lost in naval service, 271. Coast and Geodetic Survey, operating with Navy dur- ing war or emergency, 1479, 1480. Coast G.uard; laws to which subject, 1455. Commissioner of Pensions and Secretary of the Navy, 396, 397, 1155. Consent can not confer on court, 125, 977, 1033. Consular and military authorities, 576. Coroners, United States reservations, 293. Courts and executive departments, 345-348. Courts-martial; change of status does not divest, 403. enlistment expired, 558. exceeding, responsibility for, 54. olTenses, 05. persons subject to, 62. Discharged enlisted men, pending reenhstment; sub- ject to regulations, etc., 1201, 1202. Enlisted men subject to Navy laws until discharged, 555, .556. Examining boards; courts can not review, 728. Foreign nations over United States vessels, 67. Homicide on naval vessel, 66, 67. Hydrngraphic Office and Weather Bureau, 388. ■ International law questions, 105. l,and purchased by United States, 282. Lighthouse Service during war or emergency, 1456, 1457. JURISDICTION-Continued. Marines embarked on naval vessel, 1442. Militia, Federal and State, 71. Murder committed on naval vessel, 983. Naval reservations, 292-294. Naval Reserve Force; laws and regulations of Na\-y applicable to, 1446, 1447, 1451, 1511. while wearing imiforra, but not in active ser\'ic6 1511. Navy medical personnel detailed with marines de- tached for service with .Vrmy, 1421. OlTenses violating both miUtary and civil law, 120. Political questions, 104. Public Health Service in time of war, 1491. Public officer exceeding; violation of oath, .320. Responsibility of executive officers exceeding, 78. Secretary of the Interior and Secretary of the Navy; contracts, 397. State and Federal authorities, 47, 51. State authorities, to require health reports from naval officers, 49, 50, 461. Summary courts-martial, 1005. United States, exclusive, 72, 282-284, 1348-1351, 1353, 1354. property purchased in States, 289-292. reservations in Maryland, 293-294. War, discipline of Army, 42. military power over civilians, 44. JURY: Court-martial compared to, 1039, 1055. Court of inquiry analogous to grand jury, 1055. Not required in Navy, 59, 68. Trial by, in criminal cases, 129, 130. JUSTICE: Administration of, Navy, 1308-1312; 1441, 1442. KEEPER OF THE MAGAZINE: Office may be abolished at navy yards, 533. KING: Acceptance of presents from, 75. LABORERS: See Civil establishment; Pay of civil establishment. Appointment, number, pay, etc., 204, 205, 209, 381. Eight-hour law applicable to, 1117. contract provisions, 1370, 1371. Estimates and appropriations for. Navy, 1103. Material men and, contracts for public works, 1227, 1228. Navy yards; employment of, 780. Not to be used for private purposes, 702. LAND AND NAVAL FORCES: See Army; Marine Corps; Naval forces. Congress to make regulations for, 58. Defined, 58. LAND GRANT: Railroads, 1179, 1180. LANDS: See Condemnation: Public properly. Attorney General to report upon title and jurisdiction, 282. Condemnation proceedings, 1199, 1518. Condemnation proceedings, for military purposes, 1490, 1491. Leases granted by Navy; revocable; term of, 1419. Leased to Na^'y; improvements on to become property of lessor, 1508. Military reservations, 1087. Oil; petroleum reserves, etc.; leases of, 1532, 1533, 1545. Public; general provisions relating to, 1083-1089. Purchase of, for United States; releases obtained by President, 1121. 1632 IXDEX. LANDS— Continued. Sale of, by executive departments, 1516. Sites for Na\-y hospitals; Secretary may procure, 1159, 1160. Title to and jurisdiction over, 282. Transfers between Army and 'Sa.yy, 1528. to jurisdiction of Navy Department, 1457. to Public Health Service, 1526, 1559. JC4ANDSMEN: Marines may be substituted for, 955. I4ANGUAGE: Disrespectful, to superior officer, Navy, 984. LARCENY: Arms, stores, money, etc., furnished for naval service, 990, 1325. Books, maps, records, etc., 1335, 1.336. Checks for public money; duplicates issued, 1098, 1099. Honorable discharge blanks, 509. Mail matter, 1338. Money or property intended for naval service, 990, 1325. Personal property of United States, 1328. Post office property, 1337. Private property, 1350. Public money, property, records, etc., 1328. Punishable by naval court-martial, 984, 990. Punishment for, 1324. Written instruments: value of, 1350. LAUNDRIES: Marine Corps; appropriations credited with receipts from, 1531. LAW: See Mistale of law. AccountLag officers' interpretation not binding, 239. Amendments to; Attorney General will not advise as to desirability of, 299. Conflict of; bonds, 490-491. Contracts terminated by operation of: payment of reservation, 1115, 1116. Decisions of courts and law officers, effect of, 6. Foreign; Attorney General will not render opinion con- cerning, 299. Ignorance of, 477. International, oilenses against, 38. Judicial notice of State laws, 429. Maintaining, by use of vessel loaned to naval miUtia, 114. MUitia may be used to execute, 69. Naval forces employed in enforcement of, 1081, 1088, 1130, 1131, 1169, 12S9, 1290, 1300, 1301, 1387. Na^•y; appUcable to Marine Corps, 962, 967, 968. where found, 1. President's duty to see that laws are faithfully exe- cuted, 101. Questions arising before examining boards, 712. arisi-ag in Navy Department; .Vttorney General to dispose of, 321. decided by courts-martial, 1024, 1045. Regulations have force of, 197. State, appUcable in Federal reservations; criminal code, 1351. laws and records; e\'idence of, 429, 4.30. United States, enforcement of, abroad, 70. LAW BOOKS: Restrictions on purchase of, 1261. LE-^SES: Land- fur use of Navy; improvements to become prop- erty of lessor, 1508. Naval lands; revocable; term of, 1419. Naval petroleum reserves, etc., 1532, 1533, 1545. LEAVE OF ABSENCE: See Absence; Absence without leave; Furlough; Liberty; Line of duty; Pay of civil establishment; Pay of Naval Establishment. Can not be forced on officer or enlisted man, 574. Ci^'il employees: belonging to National Guard, 1412. disabled in line of duty, 1468. employment of substitute, 207. executive departments, 1221, 1263. insular possessions; cumulative, 1417. members of Officers' Reserve Corps, 1476. na^'y yards and stations, 781, 1464. pay for services during, 1390. Sundays and holidays excluded, 1263. Commanding officers to grant, 574. Enlisted men, Navy; pay during, 869. on clerical duty at marine headciuarters, 1474. Liberty on shore; deprivation of by commanding offi- cer as punishment, 1002. on foreign station; deprivation of by summary court martial, 1000. Medical expenses, enlisted men, during, 903. Midshipmen, 764. Nurse Corps, female, 807. Officers, Marine Corps; pay, 941. Na^'y, appointed to office in Brazil, 1399. pay, S23-S25. Retired officers, 659. Sickness; medical expenses of officer, 904. Sundays and holidays excluded from, employees in departments, 1263. Suspension of officer by court-martial sentence, equiva- lent to, 584. Travel of officer, to and from; mUeage, 843, 844. Warrant officers, 1430. Witnesses in Government service, 413, 417. LEG.IL REPRESENT.\TI\^S: See Death; Effects. Effects of deceased persons on vessels to be secured for 995. LEGAL SERVICES: See Attorney General; Counsel; Department of Justice. Attorney General to pro^ide for Na\-y Department, 321. Department of Justice to furnish all required by de- partments, 323. LEGISLATION: Delegation of power by Congress, 59, 195, 784, 787. Influencing; restrictions on use of appropriations; punishment, 1527. Powers of Congress, 30. Procuring by private soUcitation, 30. LEGISL.ATURE: State; consent to purchase of land by United States, i 282,283. LENGTH OF SERVICE: See Pay of Naval EstabUshmcnt; Retirement: Service. Army and Navy service credited to naval officers, 1191. Army cadet service not credited to naval officers, 1390. Computation of, for pay and retirement: officers of the Na-i-y, 587-589, 1191, 1390, 1535, 1550. Constructive, credited to naval officers for pay pur- poses, 1268. for precedence, 691, 694. Date service commences, 838. Dental officers who have gained or lost numbers, 1421. Enlisted men; how computed for retirement, 1269, 1270, 1291, 1299. transferred to Naval Reserve Force; how com- puted, 1449. 1633 INDEX. LENGTH OF SERVICE— Continued. Marine olTicers. computation of, 969. credited with, 927. Midshipman service not credited to Army officers, 1388. not credited to naval oflicers, 1.390. Naval Academy band members credited with prior service, 1.355. Naval Reser\-e Force, computation of service, 1509, 1510. Oflicers advanced or losing numbers, ellect of, 691 , 1421. transferred to diiTerent branch of service, 1249. Pay of enlisted men, Navy, increased for, 862, 867, 868, 8S.3-891. officers of Navy, increased for, K21-82;?, 1.301, 1302. retired officers, 908, 909. Precedence; computation of service for, 691. line and staCf officers, 689-695. of officers. Army, Navy and Marine Corps, having same date, 668. Promotion by selection; constructive service credited, 694. Retirement; cliiefs of bureaus, 672, 673. Marine Corps, 964. naval officers for, 1303. stafi officers, rank, 685. LIBEL: '^ee Privileged communications. Indecent matter bn wrappers of mail, etc., 1341. Prize property; proceedings, 1139. Records furnished for use in civil suit, 356, 357. Responsibility of officers for official acts, 350, 351. LIBERTY: See Leave of absence; Line of duty. Commanding officers to grant to faithful and obedient, 574. Definition of; due process of law, 124. Deprivation of: persons in naval service, 1.36, 1002, 1006. LIBERTY BONDS: Accepted in lieu of sureties, 1523, 1524. LIBRARIES: Designated depositories for Government publications; executive departments. Naval Academj-, etc., 1240. LIBRARY OF CONGRESS: Departmental books, maps, etc., transferred to, 1280. publications furnished to, 1273, 1274. LICENSES: Chauffeur of Government automobile, 48. Medical; Hospital Corps member arrested for prac- tising without, 400. Naval officers required to have, when serving as officer of private vessel, 1135, 1136. Na\'igation requirements not applicable to officers of public vessels, 11-35, 1136. Officers of merchant vessels; duties required of in time of war, 1249. Use of public lands, 291 . LIEUTENANT COLONELS: Commanders rank with, 602. Number of. Marine Corps, 1458. LIEUTENANT COM3IANDERS: Pay, 792, 798, 1301, 1302. Promotion by selection to commander, 1430, 1513. Proportion of in line, 1425. Rank with majors, 662. Retirement of, for purpose of creating vacancies, 1265. LIEUTENANT GENERALS: Vice admirals rank with, 602. to have same allowances as, 1512. LIEUTENANTS (JUNIOR GRADE): Acting ensigns commissioned as, 1436. LIEUTENANTS (JUNIOR (JRADE)— rontinuc.l. -Vssistant civil engineers to take rank and precedence with, 1474. surgeons to rank with on original appointment, 1426. Commissioned warrant officers may receive pay and allowances of, 1429, HM. retired, allowed pay of, 1.503, l.")04. Ensigns promoted to, 1204. Examinations reiiuired for promotion to, 1190. Grade of master changed to, 448, 1190. Pay, 792, 799, 1.301. Promotion of ensigns to; examinations required, 1190. length of service requirement. 1204. length of service requirement suspended, 1551. Promotion to lieutenant; engineering duty, 1436. length of service, 1425. length of ser\'ice requirement suspended, 1551. Proportion of, in line, 1425. Rank with first lieutenants, 662. Warrant officer, retired, allowed pay of, 1503, 1504. LIEUTENANTS, NAVY: See First lieutenants: Lieutenants {junior grade); Second lieutenants. Commissioned warrant officers may receive pay and allowances of, 1429, 14.30. retired, allowed pay of, 1503, 1.504. Examination required for promotion to, 1190. I^ength of service requirement for promotion to, 1425. requirement suspended, 1.551. Pay, 792, 799, 1301. Promotion of lieutenants (junior grade) to, 1190, 1425. Proportion of in line, 1425. Rank with captain. Army, 662. Warrant officers, retired, allowed pay of, 1503, 1504. LIFE SAVING DRESS: Use of in the Na\'y, 1191. LIFE-SAVING SERVICE: Consolidated with Revenue Cutter Service under ntme of Coast Guard, 1400. LIGHT: See Heat and light. LIGHTHOUSE SERVICE: Commissioned officers of, eligible for membership on naval courts-martial, 1494. Expenses defrayed from naval appropriations, 1456, 14.57. Naval officers not allowed additional compensation under detail to, 1149. Status and duties during war or emergency, 1456, 1457. Traveling expenses, naval officers detailed to, 1298. LIGHT LISTS: Publication by Hydrographic Office; number of copies printed, 1238. LIMBS: Artificial; allowance to disal)led personnel, 1150, 1157, 1181, 1217. LEVIITATION OF PUNISH3IENTS: Court-martial sentences in time of peace, 1062-1064. LIMITATIONS: See Statute of limitations. LINE OF DUTY: Burden of proof; officer before retiring board, 915, 916. Compensation for death or disability, naval personnel, 1498-1501 . Decisions relating to, 605-616. Defined, 605. by Court of Claims, 610. Discharge for disability not incurred in; refund of en- listment bounty, 1298. 1634 INDEX. UNE OF DUTY— Continued. Evidence, 611,612. E^^dence; burden of proof, 612. medical experts, 611. Incident of the service sjTionjmious with, 605. Loss or deficiency of funds incurred by NaAT (dis- bursing officers in, 1527, 1528. Presumption in favor of, 611. Prisoners, 613, 614. Promotion of officer receiving wounds in, 709. Rank on retirement of marine officer incapacitated for promotion, 965. naval officer incapacitated for promotion, 1366. Refusal of officer to submit to surgical operation, 615, 616. Specific cases involving question of, 612. Suicide; evidence in cases of, 612. questions relating to, 614, 615. Wounds received in: promotion not barred by, 709. LINE OFFICERS: Age for promotion by selection, 1434. Aid or executive of commanding officer, 669. Appointed from graduates of Naval Academy, 765- 768, 11S8, 1189, 1193, 1392. Chiefs of bureaus, appointments, 378. Commodore omitted from grades of, 1264. Construction officers may exercise command over, 508, 1359. Definition, 448. Detailed as assistant to chief. Bureau of Ordnance, 1261. as assistant to Judge Advocate General, 1418. as commandant of navy yard, 779. as supervisor of New York Harbor, 1198, 1199. to duty under staff officers, 1359. to engineering duty, 1435. Distribution of in grades, 1425. Duties not compatible with grades of staff officers, 507. Grades of, 447. Marine Corps; relation of staff to, 921, 922. Midshipmen appointed as, 76.5-768, 1188, 1189, 1193,1392. Naval Reserve Force, 1443. Number of, 450-453, 1424. permanent strength not reduced by act of June 4, 1920; 1549. reservists on active duty and temporary officers counted as part of, 1549. when may be exceeded, 453. Precedence; date of commission, 668. with staff officers, 689-695. with staff officers in processions, courts-martial, etc., 704. Promotion by selection, 14.30-1434. by selection; time for convening boards, 1.529. if receiN-ing thanks of Congress, 736. Retirement, voluntary, to create vacancies, 1265. Sea ser\-ice prior to promotion, 1434. Staff officers may exercise command over, 508, 1359. Superintendent of Naval Observatory to be detailed from, 1276, 1277. Transfer to Construction Corps, 1408. Vacancies, insufficient graduates from Naval Academy, 707. UNE OF PROMOTION: Retired officers withdra\^Ti from, 654, 655. LIQUIDATED DAMAGES: Forfeiture by delinquent contractor, 1111, 1113. LIQUORS: See Intoxicants. Prohibition of alcoholic, near military camps and to persons in uniform, etc., 1477, 1478. LITIG.\TION: Records of Na%'y Department desired for use in, 424. Responsibility of officers for official acts, 350, 351. LOANS: See PuWic property. Public moneys, prohibited, 109S, 1329, 1344. Supply officers forbidden to make, 497. LOG: Punishments inflicted by commander of naval vessel to be entered in, 1002. LONDON FISCAL AGENTS: Receipts for interest on account of the Navy Depart- ment with; how credited, 1222. LONGE\lTY: See Length of service; Pay of Naval Establishment. LOSS OF NUMBERS: Continuing punishment; remission of, 1052. Dental officers, considered to have lost service ac- cordingly, 1421. Failure to qualify for promotion, 729-734, 1463. Officer sentenced to, pending promotion; effect of, 652. Precedence; effect of, 691, 1429. Remission of unexecuted portion of sentence, 669. Substituted for dismissal, 1053. LOSS OF PAT: Summary court-martial may adjudge, 1007. LOST: See Effects; Vessels of the Navy. Discharge; certificate in lieu of, 1203, 1204. Property; charging value to responsible individual, 788. LOTTERIES: Importing tickets, etc., 1346, 1347. Mailing of circulars, etc., 1341, 1342. LOWEST BIDDER: See Contracts. LUMP SUai: See Appropriatiom; Civil establishment; Pay of civil establishment. LU*N.ATIC: Defined, 185. I>IACHINERY: Estimates and appropriations for, Na-^T, 1103. Exchange of, in part paymet for like articles, 1474. MACHINISTS: See Warrant officers. Appointment of, as warrant officers, 1268. MACHINISTS' MATES: Increase in pay of, 1495. MAGAZINES: Authority of law necessary for printing of, by Govern ment, 1525. Keeper of; office may be aboUshed, 533. MAIL CLERKS: See Navy mail clerks. MAILS: Free transmission, official business, penalty envelopes, 1181, 118.5, 1186, 1191, 1291, 1-345. Illegal use of; espionage act, 1489, 1490. Offenses relating to, 1337-1345. MAIL VESSELS: Commandeered for use as transports or cruisers, 1217. Construction of, subject to approval by Secretary of the Navy, 1216. Detail of naval officers for duty on, 1217. MAINTENANCE: Appropriation for, Bureau of Yards and Docks; use of, 1530. MAJOR GENERAL COMMANDANT: Appointment of, 1392, 14G0. Claims for reimbursement, lost or damaged private property, 1492-1494. 1635 INDEX. MAJOR GENERAL COniAXDANT-Continued. Counted as senior to colonel in making computations, 1409. Filling of temporary vacancy, 929. Major generals junior to, at all times, 1512. Rank of, 928, 1.W2, 1.M2. from which appointed, 9'29, UOO. Retirement; active duty after, 929. how vacancy temporarily filled, 21.5. Status as additional number, 929, 1:492. Teniu'e of office; appointment: retirement; additional number in grade, etc., 1392. MAJOR GENERALS: Marine Corps: one permanent and one temporary au- thorized, 1.512. Rear admiraLs rank with, 662. both upper and lower half, 665. MAJORS: Lieutenant commanders rank with, 662. Number of, Marine Corps, 1458. l\LiLTREATMEXT: Of crew, by officers of vessel, 1351. Of inhabitants on shore: pimishment. Navy, 985, 987. Of personnel of merchant vessel under convoy, 985. Of persons on prize; punishment, Na'V'y, 994. Of subordinates; punishment for, in Navy, 984. RLAXDA3IUS: Hoard of Labor Employment, navy yards, subject to, 7S0. Heads of departments subject to, 79. Jurisdiction of coiu-ts over business of departments, 34.5-348. removal of employee by head of department, 338. Proceedings against accounting officers, 2.56, 257. Sale of naval vessel; delivery to highest bidder, 778. RLAXIFEST OIPEDIMExf: Statute of limitations, 10.57, 10.59, 1060, 1062. MAXIFOLD BLAXKS: Public Printer to furnish to departments, 1278. MAXXED: Naval vessels to be manned as directed by President, 775. MAXSLAUGHTER: See Homicide. Attempt to commit, 1.349. Consular coiu-t proceeding against naval personnel cliarged with, 224. Definition and punishment, 1349. Military guard charged with, 403. Murder charged as, 67. Place where committed, 1355. Punishment for, Navy, 998. MAXUALS: Hydrographic Office to provide, for use by navigators, 387. MANUFACTURERS: Bids submitted by persons who are not, 1114. MAPS: Departmental, transferred to Library of Congress or public library. District of Columbia, 1280. Destroying, removing, stealing, or attempting to do so, 1335, 13.36. Estimates and appropriations for. Navy, 1103. Preparation and sale of, Hydrographic Office, 390, 1236, 12.38. Restrictions on embodying in annual reports, 1239. MARINE BAND: Band instruments; exchange of, 1474. Competition with civilians 352, 1463, 1464. Enlisted strength, Marine Corps, exclusive of, 14.58. MARINE BAND-Continued. Organization of, 920, 1463, 1464. under personnel act, 1271. Status and pay of, 951, 952, 1463, 1464. MARINE CORPS: See Allouanfcs: Army; Articles for the Oovernmenl of the Xavy: A rticlcs of War; Enlisted men; Enlistments; Major General Commandant; Marine Band; Officers of the Marine Corps; Pay of Naval Establishment: Re- tired enlisted men; Retired officers; Retirement. Additional number officers, 1289, 1458. major general commandant, 929, 1.392. promotion to brigadier general, 1459. war ser\'ice or extraordinary heroism, 1275, 1276, 1289. Advancement of officers for conduct in battle or ex- traordinary heroism, 921, 933, 12S9. Appointment of officers: age and examination of candi- dates, 1270. dismissed midshipmen, 1281. qualifications, 922, 925. second lieutenants; from graduates of Naval .\.cad- emy, IISS, 1189, 1270, 1281, 1392. Army laws applicable to, 924, 940-943, 964, 965. Assistant to Judge Advocate General detailed from, 1418. Brevet commissions, 931-933. Brigades, organization of, 936. Pliilippine Islands; status and discipline of, 955. Command over navy yards and vessels, 9-55. when serving with Army, 443. Cooperating with Army, 443. supplies and transportation, 433. Commissioned officers, number and grades of, 917, 918, 14.58. number of; when may be exceeded, 921 . Companies, organization of, 936. Computations, number of officers: distribution in rank, 1458. final fractions, 920, 921, 1428, 1458. major general commandant counted as senior to colonel, 1459. Court-martial jurisdiction over, 960, 961. Date of rank on promotion, 931. Deck courts may be ordered by officers of, 1308. Deposit of sa\-ings, enlisted men, 951, 1295. Detached, definition of, 954. Detached service; authority of liigher officers of corps, 955. with Army; command ofjoint forces, 443, 1544. jurisdiction, 1544. status and duties; decisions relating to, 443, 956-963. Detachments, organization of, 936. Duties; on shore, 9.55. service on vessels, 954. Enlisted men appointed as midsliipmen, 743. detained in service under Na\-y laws, 557. distribution of, 921. may be substituted for landsmen, 955. number of, 919, 920. pay grades, 945. ser\ing as firemen on vessels; pay, 878. transferred to, from Army, 555. transferred to and from Hospital Corps, 555, 567, 1420. Enlistment allowance, 942. bounty, 942. governed by Na^"y laws, 545. term of, 934, 1552. 1636 INDEX. MARINE CORPS— Continued. Examinations for appointment, 1461. promotion, 711, 924-927, 1270. failure to pass reexamination; discharge, 1463. loss of numbers for professional failure, 1463. physical, 707, 70S, 1463. Exchange of sewing machines, band instruments, etc., 1474. Exemption from arrest in certain cases, 935. Extension of minority enlistments in, 1476. Extra duty, enlisted men; restrictions on, 1315. Funeral expenses, 906. General provisions relating to, 917-971. Grades of enlisted men; distribution in, 1548. Gunnery sergeants; 950, 1271, 13S3. Headquarters; status of; 191, 192, 331, 895, 957. Homesteads; general pro\-isions relating to, 1083-1087. Jurisdiction; embarked on naval vessels, 1442. Length of service credited 1o officers of, 927, 928. Major generals authorized; junior to major general commandant, 1512. Medals of honor and gratuity imder Navy law, 514, 1275. Medical attendance, 904. Medical personnel ser\'ing with, when detached for service \\ith Army, 1421. Midsliipmen appointed on graduation, 1188, 1189, 1221, 1222, 1270, 1281, 1392. Mileage allowed officers traveling under orders without troops, 1251. Naval Academy graduates appointed to; commence- ment of pay, 1221, 1222. ser\'ice defined toinclude, 920, 921. Na\T laws applicable to, 962, 967, 968. Not a part of the Navy Department, 359. Number of enlisted men, 919, 920, 1271, 1416, 1548. distribution in grades, 1463, 1548. during national emergency, 1463. exclusive of those sentenced to discharge, 1463. permanently authorized, 1548. Number of officers and enlisted men increased, 1416. officers; distribution in ranks, 917, 918, 1458. pay clerks, 1515. staff officers; appointment, details, etc., 1460. warrant officers, 1462. Oaths; officers authorized to administer, 1240. taken by officers and men, 935. Officers may liold civil appointments in Virgin Islands, 1075. rates of pay, 940, 941. Organization, 917-921. companies, detachments, regiments and brigades, 936. under personnel act, 1270, 1271. Pay and allowances; general provisions relating to, 936-954. Pay clerks, 918, 919. pay of, 950. title established; number, pay, etc., 1515. Post laundries; operation of; reuse of appropriations, 1531. Precedence of officers, 930, 931. Private first class; rank established; number author- ized, 1478. I'robationary appointments, 925. Promotion; Army laws extended to, 1219. examinations, 711, 924-927, 1270, 1463. for conduct in battle or heroism, 933. laws and decisions relating to, 924-927, 1219. Ust; promotions made from, according to seniority, 1461. MARINE CORPS— Continued. Promotion; physical examination, 707, 708, 1463. physical incapacity; retired rank, 965. Punishments infficted by commanding officer, 1002. Rank in relation to the Army, 930, 931. in relation to the Navy, 667. retired officers, 964. Senior staff officers, 1460. Ratings and grades for enlisted men may be established by Secretary of the Navy, 1552. Rations, enlisted men, 9.53, 954, 1531. officers not entitled, 954. Reduction in number of officers; power of Congress, 921. Regiments, organization of, 936. Regulations; Army and Navy; subject to, 956, 961. President to prescribe, 956. Reimbursement for effects lost in naval service, 271, 1492-1494. Retired enlisted men, 967, 1299. officers; active duty, 966. active duty; Navy laws govern, 659, 914, 967, 968. and enlisted men; status of, 969, 970. Retirement, civil war officers, 1282, 1293. disability not incident to service, 968, 969. enlisted men, 1299. furlough pay; naval laws not applicable to, 621, 915. Judge Advocate General, %8. laws and decisions relating to, 963-971. Sale of subsistence stores, etc., to personnel and civil- ians, 1313, 1314, 1391, 1464. to personnel of Army, Coast Guard and Public Health Service, 1465, 1533. Sea-duty pay, officers and enlisted men, 1408. Second lieutenants; appointment of, 922, 925, 1188, 1189, 1270, 1281. Secretary of the Navy; jurisdiction over, 956, 957. Special qualifications, details, etc., enlisted men; pay, 947, 948. Specialist ratings, enlisted men; pay, 942, 946. Staff, 1460, 1461. detail of senior officers away from headquarters, 784, 922. duties of senior officers, 922. organization under personnel act, 1271. rank of officers, 929. relation to the line, 921, 922. Status; cooperating with Army, 961. detached for service with Army, 443, 960. normally part of Navy, 957-960. Subsistence, enlisted men, 954. Temporary officers transferred to permanent service, 1548. Thanks of Congress; officer advanced for receiving, 933. Training camps, 1464. Transfer of enlisted men to and from hospital corps, 555, 567, 1420. Warrant officers, 918, 919. appointment, rank, pay, retirement, etc., 1462. foreign shore duty pay, 1474. number increased, 1479. MARINE CORPS RESERVE: Commissioned officers eUgible for membership on comts-martial, 1494. (ieneral provisions relating to, 1454, 1455. National Naval Vohmteers transferred to, 1508, 1509. Service in, credited to officers and enlisted men of regular service, 1529, 1530. Transfer of officers to permanent Marine Corps, 1.548. MARINE DISASTER: Construed, 272. 1637 INDEX. MARINE ENGINES: Naval vessels; use of patented articles connected with, 770. ■ MARINE GUNNERS: Appointment as warrant oflicers, Marine Corps, 1462. MARINE PARADES: UoRulations: onforcemcnt of by head of any depart- ment, 1300, 1301. MARINERS: Hestitute seamen, 575. Merchant seamen confined as prisoners on naval ves- sels, 576. Naval oflicers may exercise consular powers in relation to, 575. Notices to; publication by Hydrographic Office; num- ber of copies, 1238. MARINE SCHOOLS: See Nautical .vc/ioo/.t. MARITIME JURISDICTION: Crimes committed within, 1:?4S-1351. Judicial power with relation to, 105. MARKSMANSHIP: Director of Civilian; appointment of marine officer as, 1465. MARRIAGES: Naval vessels; performing on board, 575. MARRIED WOMEN: Sureties on bonds, 484, 485. MARSHALS: Attorney General to supervise and direct, 323. MARTIAL LAW: Decisions relating to, 44-47. Insurrections; employment of naval forces, 1169. MARYLAND: Laws relating to United States jurisdiction in, 293-294. MASCULINE: Includes females, in Federal statutes, 185, 1355. MASTER AT ARMS : Refusing to receive prisoners, or suffering to escape; punishment, Navy, 985. MASTER RIGGER: Service on examining boards concerning repairs to vessels, 777. MASTERS: Grade of in Navy, changed to lieutenant (junior grade), 448, 1190. Rank with first lieutenant, 662. MASTER SAILMAKER: Service on boards concerning repairs to vessels, 777. MASTER WORKMEN: Navy yards: appointment of, 779 , 780. serv'ice on examining boards concerning repairs to vessels, 776. MATERIAL: See Public property. Sale of naval, 777-779, 1190. MATERIAL MEN: Protection of; contracts for public works, 1227, 1228. MATES: Appointment as Navy mail clerks, 522. Deposits, enlisted men rated as, 524. Enlisted men rated as, 515. General provisions relating to, 515-525. Honorable discharge gratuity and continuous ser\'ice pay, 891. Pay and allowances of, 521, 522, 792, 800, 864. Quarters; same commutation as second lieutenants, 097, 827, 1275. Rating of enlisted man as, does not discharge from enlistment, 523. Rations allowed to, 897. MATES— Continued. Retired; honorable discharge gratuity and continuous service pay, 890. Retirement of, 519-521. Revocation of appointment, 522. MATHEMATICS: See P Toft ssors of mcUhematics. MAYHEM: Definition and punishment, 1350. MAYOR: Retired officer may accept position of, 1075. IWEASURERS: Fuel wood purchased for public service, 1110. Office of measurer and inspector of timber may be abolished, 533. 3IEATS: Preserved, purchase of for Navy, 1115. MECHANICS: See Civil cxtahlishmcnt; Pay of civil establishment. Eight-hour law appUcable to, 1117, 1219, 1220, 1370, 1371, 1474. MEDALS: Appropriation for cost of, 1522. Bar or other insignia in lieu of second and succeeding medals, 1521, 1522. Conduct for which awarded, 1521. Death; award after, 1522. Duplicates authorized where originals lost, 1282. Enlisted men; distinguished conduct in battle; ex- traordinary heroism, 512, 1275. gratuity allowed, 512, 865, 1275, 1521, 1522. rosettes and ribbons, 1262. Entire ser\ice prior to award and after distinguished act must be honorable, 1522. Flag officers may Ise empowered to award Navy crosses, 1522. Foreign; acceptance and wearing of, 76, 1516. tendered through State Department, 1187. wearing of by officers, 76, 1187, 1516. General provisions relating to medals and crosses, 512- 515, 1521-1523. Good conduct; additional pay, enlisted men, 866. Interchanged between United States and foreign military forces, 1516, 1517. Medal-of-honor roll. Navy Department; special pen- sion, 1410. Officers of Navy, Marine Corps or Coast Guard, 1402. Replacement of lost medals, crosses and bars, 1522. Time for award of medals and crosses, 1522. MEDICAL ATTENDANCE: Dental treatment, court-martial prisoners, 903. Does not include dental treatment, 904. Naval persoimel, 902-904. Not pay, but an allowance, 440. Persons entitled to; deductions for naval hospita fund, 904. Retired officers, 440. Sick or disabled men on naval vessels, 995. Specialist's expenses, 904. 3IEDICAL CORPS: See Dental Corps; Hospital Corps; Retirement; Retired officers; Staff officers. Acting assistant surgeons; number, rank, and pay, 527, 529, 675, 1184, 1261. retirement, 528. Additional compensation for professional ser\'ices to Federal prisoners, 459. Advancement in rank, 1426, 1481, 1513. Appointments in; age requirements, 1427. how made, 461. Assistant surgeons; quaUfications for appointment, 462. 1638 INDEX. MEDICAL CORPS— Continued. Assistant surgeons; qualifications for promotion, 464. Assistant surgeons, rank, 1273, 1426. Autopsies; authority to perform, 460, 461. Command, hospital ships, 703, 785. Command, hospital ships or hospitals: convening courts and inflicting punishments, 1441. Command; relative rank not to confer right of, 702. Communicable diseases: cooperation to suppress, 1520. Consultations to be held in fleets and squadrons, 466. Detail of officer as assistant to Bureau of Medicine and Surgery, 466. on advisory board. Public Health Service, 1279. to Red Cross, 1436, 1437. with marines detached for service with Army; jurisdiction, 1421. Disease; injections to prevent: naval persoimel must submit to, 458. Distilled spirits on vessels, imder control of medical officers, 989. Distribution of officers in grades, 1427. General provisions relating to, 455r466. Hospital ships ; command, 703, 785, 1441. Number of acting assistant surgeons, 1261. of officers, 455, 456, 1425, 1436, 1437. and enlisted men increased, 1416. Nurse Corps, female; general provisions, 1303, 1304. Officer convicted of vulgar and indecent acts; unfitted for duties, 5S3. Organization of, 455. Passed assistant surgeons, rank, 675, 676. status, 457, 458. to have commissions, 1251. Precedence of officers, 1426. not disturbed byact of August 29, 1916; 1480, 1481. Private practice by members of, 459, 460. Promotions in, 464, 465. examinations, 1251, 1481, 1482. Rank, acting assistant surgeons, 529, 1261. and precedence of assistant surgeons, 1273, 1426, 1480. of officers in, 673-676. distribution, 1427. Reports to State authorities, 49, 50, 461. Stores; procurement of for fleets and squadrons, 466. Surgeon of ship; duties relating to health of crew, 995. to report as to health of accused persons, 1009. Surgeon of the fleet, appointment, 466. duties, 466. MEDICAL DIRECTORS: Pay, 792, 801. Rank, 673, 1427. MEDICAL EXAJVnNERS; See Boards. Boards convened on foreign stations, 707, 1472. MEDICAL EXPERTS: Testimony of, 611. MEDICAL INSPECTORS: Pay, 792, 801. Rank, 673, 1427. MEDICAL RESERVE CORPS: Army; reinstatement of civil employees after service in, 1464. Na\'y; laws relating to repealed, 1509. MEDICAL SUPPLIES: DistiOed spirits on naval vessels, 989. Loan to Red Cross, 1394, 1395. Procurement of for fleets and squadrons, 466. Purchase of in excess of app opriations, 1116, 1288. MEDICAL SURVEY: Discharge on; transportation home, 875, 1274, 1275. MEDICAL TREATMENT: Death resulting from; line of duty, 613. Enlisted man; enlistment expired, 559. Enlisted man, furloughed wrthout pay, 537, 903. Naval personnel required to submit to, 458. Persons not in Navy, 459, 460, 1468. Records to be kept of, 460. Refusal of officer to submit to, 615, 616. Surgical operations; whether naval personnelrequire to undergo, 458, 459. MEDICINE AND SURGERY: See Bureaus; Chiefs nf bureaus; Surgeon General. MEDICINES: See Medical attendance; Medical supplies. Allowance of, 902-904 . Purchase without advertising, 1113. MEETINGS: Expenses of public officers attending societies and associations, 1371. MEMBERSHIP: Public officers in societies or associations, 1371. MEMBERS OF CONGRESS: Accepting fee as counsel before courts-martial, depart- ments, etc., 13:33. Advertising names of, by firms or corporations, etc., practising before departments, 1411. Appointments to office; accepting consideration for procuring, 1332, i:333. Board of \'isitors. Naval Academy selected from, 1458. Civil employees may petition, or furnish information to, etc., 1388. Contracts; not to be interested in, 1118, 1333, 1.334. De facto officers; midshipmen appointed on recom- mendation of, 747. Holding other offices, 34. Retired officer serving as, 34. Subpoenaed by court-martial, 33. MEMORIALS: Erection in Arlington Memorial Amphitheater, 1559. Naval Academy Chapel, use for, restricted, 1314, 1315. aiENACES: Punishment for using toward other persons in Xa\'y, 984. MENTAL: Defined; moral and professional distinguished, 712-721. Disability; retirement for, 593. Examination for promotion, 711-721. MERCHANDISE: Definition of, 1408. Transporting on naval vessel, 985. MERCHANT MARINE: Charts furnished by Hydrographic Office, Na\-y De- partment, 3S7. Commandeering vessels for use as transports or cruis- ers, 1218. Confinement of seamen as prisoners on naval vessels, 576. Development of, for service as a naval auxiliary, 15.54, 1555. jurisdiction of Shipping Board, 1467. Licenses required of naval officers serving as master of vessel, 11.35. Maltreating personnel of vessels under convoy, 985. Naval vessels to protect against piracy, 1130. MERCY: Court-martiai members may recommend, 1034. MERIDIANS, 391. MESS ATTENDANTS: Pay, 864. 1639 INDEX. MESSENGERS: Soe Civil (stablishmeni; Pay of civil cstablishmenl. Appointment, number, pay, etc., 204, 20'), 209. MESSES: Commutation of rations paid to, 902, 1279. raise reports l)y treasurer of; held not to be fraud against United States, 902. P'lmds of; whether public money, 232, 902. Ciarbage, sale of; proceeds public money, 232, 899. Officers; on shore; messmen not allowed, 829. MIDSHIPMEN': See Appointnunls; Naval Academy. Academic course, 762-765, 1369. reinstated; not required to repeat, 7G4. Age requirements, 1507. appointments from enlisted men, 1472, 1473. can not be waived, 750. Aliens appointed as, 571. Appointment; date effective, 746. final as to qualifications, 750. from enlisted men, Coast Guard; eligibility, 743. Marine Corps, 743. Navy, 743, 744. Secretary of the Na^-y authorized to make, 1472, 1473, 1502. from Naval Reserv-e Force, 744, 1502. from Porto Rico, 742, 743, 1281. illegal ; appropriations not applied to support of,751. on graduation, 76.5-768, IISS, 1189, 1392. commissioned effective from date of gradua- tion, 1479. discretion as to commissioning, 767. Filipinos not entitled to conmiissions in Navy, 1424. pay, commencement of, 830, 1221, 1222, 1479. "subject to examination," 768. to be ensigns, 766, 1193, 1392. to Marine Corps, 766, 1270. to Marine Corps or staff corps, 766, 1392. vacancies required, 767. qualifications of candidates, 749. recommendation of Senators and Representatives, 744-749, 1294, 1295. recommendation of Senators and Representatives advisory only, 745. residence of candidates, 750, 751, 1294, 1295. students from foreign countries, 743, 1294. Philippine Islands, 743, 1424. to Marine Corps, after failure to graduate, 1462. to Naval Reser\-e Force, former midshipmen, 1445, 1448. Cadet engineers, 768-770. Candidate not qualified; second recommendation, 749- Clothing, procurement of, 770. Court-martial of, 751-761. courts convened by Secretary of the Navy, 1248. for hazing, 1178, 1286, 1287. Deficient on examination; reexamination and specia] instruction required, 1555, 1556. status of, 751-755. Designation changed to ensign, junior grade, 1190, 1191. Diploma; certificate of graduation given on discharge of surplus, 1188, 1189. Discharge for deficiency restricted, 1555, 1556. of surplus graduates with one year's sea pay, 1188, 1189. Dismissal, 752, 755-760. effect of, 761. eligibility for reappointment, 582. for hazing; effect of, 1178, 1281. for single act of hazing; court-martial required, 1286. MIDSHIPMEN-Continued. Dismissal, procedure to be followed, 1286. without court-martial; exception, 1286. Dropped for deficiency, 751-755. Enlisted men appointed as, 743, 744, 1472, 1473, 1502. Examination; final graduating examination defined, 687. for commission; effect of deficiency, 754, 755. graduating; appointments if successful, 765. of candidates, 748. Foreign countries; students from, 743, 1294. General provisions relating to, 738-771. Grade of, changed to ensign, 448. Graduates, surplus, discharged with one year's sea pay, 1188. Graduation, appointments on; general provisions relat- ing to, 765-768, 1188, 1189, 1193, 1270, 1392. certificates given on discharge of surplus, 1188, 1 189. date of, 688. defined, 687. Hazing, defined, 1287. punishment for, 752, 757-759, 1178, 1286, 1287. rules to prevent, 1281. Imprisonment for brutal or cruel hazing, 1287. - Instruction of, as to nature and effects of alcoholic drinks, etc., 1194, 1195. Leave of absence; pay, 764. Medical attendance, 903. Mileage for travel abroad, 667. Naval cadets substituted for cadet midshipmen and cadet engineers, 1188. title changed to midshipmen, 1279. Nomination, candidates and alternates, 744-749, 1294, 1295. date of, 747. second recommendation, 749. Number of, 741-744, 1472, 1473, 1502. graduates insufficient to fill vacancies, 767. Oath of office, 748. Obligation assumed to serve in Navy, 746, 747. Official Register of the United States to contain names and information concerning, 12.36. Pay, 792, 799, 1302. when commissioned as officers, 830, 1221, 1222, 1479. PhiUppiae Islands, students from, 743, 1424. Porto Rico, appointments from, 742, 743, 1281. President to select candidates from District of Columbia and at large, 1294, 1295. Promotion on graduation, general provisions relating to, 765-768, 1188, 1189, 1193, 1270, 1392. Qualifications; residence, age, etc., 748, 750, 751, 1294, 1472, 1473, 1.507. Rank and precedence on graduation, 687, 765. no correspondiag rank in Army, 667. Rations and commutation allowed, 893, 1194. Reinstatement, 582, 747, 749, 761, 762. after dismissal for hazing, 1178, 1281. not required to repeat course, 764. qualifications same as on original appointment, 750. Residence of candidates, 750, 751, 1294, 1295. Resignations; revocation of acceptance, 747. Revocation of appointment, 747. Sea service, 1369. Secretary of the Navy appoints, 745. appoints, if nomination not made, 1294, 1295. may prescribe special course of study for, 1 189. Service as, not credited to Army officers, 1388. or to naval officers, 1390. Special course of study and training at home or abroad authorized, 1189. Status of, 740, 741, 755-757, 764, 903. 1640 INDEX. MID SHIPMEN— Continued . Status of, after graduation, pending appointment, 768. Students from foreign countries, 743, 1294. Piiilippine Islands, 743, 1424. Studies; ethics, Englisli; Spanish and drawing, 771. not to be pursued on Sunday, 770. Surplus graduates honorably discharged with one year's sea pay, 1188, 1189. Suspension, court-martial sentence; confirmation by President required. 1248. without pay, 755. not entitled to allowances, 828. Title of naval cadet changed to, 1279. Uniforms, etc., sold to, at cost, 1J)21. MIDSHIPMEN'S COMIVUSSARY FUND: Payments to servants from, 771, 1391. MIDSHIP3IEN'S MESS: Funds held to be public money, 232. ailDSHIPMEN'S STORE: Accumulated profits; public money, 232. Fund, 770, 1304. 3ULEAGE: See Travel; Transportation. Actual expenses; Government officers attending as witnesses, 413. Books paid for in advance of travel, 1282. Discharged enlisted men, 874-876, 1415. Exchange of stations; voluntary; officers not entitled to, 844. General provisions relating to, 840-846. Government transportation furnished; no mileage paid, 843, 1395. Leave of absence; officer traveling to and from, 843, 844. Marine Corps, 949. officers traveling under orders without troops, 1251. Midshipmen; travel abroad, 667. Naval officers; abroad; actual expenses in lieu of, 1189. amount allowed, 1180. in the United States, 1272, 1273, 1274. traveling on vessel during trial trip, 844. Officers; can not be deprived of statutoiy allowance, 844, 845. who are, within meaning of law, 846. Repeated travel; actual expenses in lieu of, 1272, 1273, 1274. Resignation of officer; travel home, 844. Retired officer ordered before court-martial for trial, 658. Shortest usually traveled route, 845, 1315. Travel by permission, 844. Witnesses, 410. before naval courts, 1310. no testimony given, 415. IVOLITART: Defined to include Navy, 76, 579, 1517. Regulations; President to prescribe for Marine Corps, 956. MIUTARY ACADEMY: Cadet faihng to graduate; appointment to Marine Corps restricted, 1462. Service at, not credited to naval officers, 1390. anLITARY COMaiAND: Construction officers may exercise in line or other staff corps, 508. Engineer officers; succession on shore, 1435. Line officers detailed under staff officers, 1359. Medical officers; hospital ships, 703, 785. Naval Reserve Force; restrictions on, 1453, 1511. Naval vessels and squadrons, 772-774, 775, 955, 1277. MILITARY COMMAND— Continued. Staff officers; elloet of relative rank, 702. rank not to confer, 1265. Warrant officers and commissioned wsrrant officers, 1267. MILITARY COMMANDER: Seizure of private property, 40. MILITARY COMRUSSIONS: Jurisdiction of, 46, 47. MILITARY DUTIES: Not compatible with grades of staff officers, 507. MILITARY FORCES: See Naval forces. Coast Guard to constitute part of, 1400. Definition of, 1496. MILITARY GOVERNMENT: Conquered territory, 41. Conquered territory, after war, 109. Constitution provides for, 08. Guam and Tutuila, Samoa, 109. Power of military commander, 110. MILITARY INSTITUTES: Detail ofnaval officers to, 435. MILITARY QUESTIONS: Duty and command are, 932. MILITARY RESERVATIONS: See Reservations. State laws applicable in; criminal code, 135L Unlawfully entering, 1327. MILITARY SCHOOLS: Loan ofnaval equipment to, 1277, 1359. MILITARY SERVICE: Army and Navy are branches of, 579. Compulsory during war, 47. Enhsted men transferred from, to Navy or Marine Corps, 555. Jurisdiction over, during war, 42. Money or property intended for military or naval service; offenses against, 990, 1325. MILITARY SOCIETIES: Badges of, worn by naval personnel, 1216, 1224, 1273, 1280, 1299. Loan or gift of condemned ordinance, etc., to, 1249. MILITIA: See National Guard; Naval Militia. Employment of, to suppress insurrection, 1169. MINES: See Alaska'. Secretary of the Interior; supervision of, .395. aUNISTERIAL: Secretary of the Navy's duties are not, 344, 345. MINORS: See Enlislments; Fraudulent enlistment. Eligible to sit as member of court-martial, 1018. Enlistment, 540. consent of parents or guardians, 544, .545, 548-551. discharged on parent's request, 1402, 1403. guardiansliip papers prepared by register of wills, D.C., 1217. under 14 years, prohibited, 551. Enrollment in Naval Reserve Force; ages; consent of parents, 1546. Held to be enlisted men, 536, 545. Homestead laws; privileges of, 1083. Unlawful enlistment of; penalty for recruiting officer, 994. MISAPPROPRIATION: Money or properly intended for naval service, 990, 1325. Naval personnel; public or private money or property, 1170. 1641 INDEX. >nSCELLAXEOUS RECEIPTS: Coudomncd Navy clothing; proceeds of sales revert to appropriations, 1 108. Garbage; proceeds of sales, 2:!2, 899. Hydrographic Oflice publicatious; proceeds covered into Treasury as, 1543. Leases of naval lands; proceeds, 1419. naval petroleum reserves; proceeds credited to, 1533. Naval Homo property; proceeds from sales, etc., credited to naval pension fimd, 1472. Naval vessels; proceeds from sales, 1457. Operation of post laundries; proceeds credited to ap- propriations from which maintained, 1531. Proceeds of sales to bo covered into Treasury as, 1095. Sales of Government supplies between departments, 1526. RUSCONDUCT: Absence due to; pay during, 825, 1436. Death not result of; payment of gratuity, naval per- sonnel, 1546, 1547. Evidence of, before promotion board, 719. Investigation of, 217. Naval officer not to be retired for, 622. unfit for promotion by reason of; discharge; pay, 11 S9. MISDEMEANORS: Definition of, 1355. MISPRISION: Dismissal of naval officers for failing to report offenses by midshipmen, 1287. Failing to give notice of deserters to naval superior, 985, to inform commanding officer of intended mutiny, punishment for, 979. to report offenses to civil or military authority, 1336, 1337. to use efforts to bring offenders to punishment. Navy, 985. Intercourse with enemy; failing to inform superior officer of; punishment. Navy, 979. Treason; definition and punishment, 1317. MISREPRESENTATION: Sureties induced to execute bonds, 485. MISSING VESSELS: See Vessels of the Navy. IVnSTAKE: See Errors. MISTAKE OP FACT: Reopening of accounts for, 248-249. Responsibility of officer making, 350. MISTAKE OF LAW: Marine officer overpaid; right of Government to re- cover, 951. Payments made tay, 245. Reopening of accounts for, 249-256. MITIGATION: Sentences imposed on Coast Guard personnel, 1455. Sentences of courts-martial, 85. by Secretary of the Navy, 1309. deck courts, 1308. general courts-martial, 1051-1055. summary courts-martial, 1009. MIXED DUTY: Which is paramount, 881. MODEL 3IAKERS: Emplojrment from naval appropriations restricted, 1281. MODELS: Estimates and appropriations for. Navy, 1103. MODEL TANK: Navy yard, Washington, D. C, use of, 1250. MOLDER: Ratings established in Navy, 1495. MONEY: Sec Public moneys. MONEY ORDERS: Forging, 1343, 1344. Issuing unpaid for, 1340. MONEY REQUISITIONS: Appropriations drawn from Treasury on, 1104. MONITORS; See Vessels of the Navy. Naming of, 1201, 1262, 1304, 1305. MONTH: Division of, for computing compensation, 1297. Thirty-first day, pay of civil employees for, 207. MORAL: Cliaracter of candidates for civil employment at navy yards, 780. Examination for promotion, 711-721. Unfitness for promotion, .597. amount of pay on discharge, 630. naval officer to be discharged for, 623, 624. Navy; discharge; pay, 1189. Unfitness; what constitutes, 624-627. MOTION PICTURES: Films of prize fights, 1371, 1372. MOTIVE: As affecting responsibility of officers for official aets,350. MOTOR BOATS: Owners of may enroll in Naval Coast Defense Re- serve, 14.53. Regulation of, on navigable waters, 1356-1358. MOTOR VEHICLES: See Vehicles. MOUNTED PAY: Officers of Marine Corps, 940. MOURNING: Draping public buildings prohibited, 1220. MUNICIPALITIES: Lands leased from, for Navy; improvements to become property of lessor, 1508. Loan or gift to, of naval ordnance, etc., 1249. MURDER: See Homicide; Manslaughter. Assault with intent to commit, 1349. Attempt to commit, 1349. Definition and punishment, 1349. Execution of subordinates without trial; jurisdiction of civil courts, 982, 983. Jurisdiction of naval court-martial to punish, 982. Mailing matter tending to incite, 1340, 1341. Place where committed, 1355. Trial by court-martial as manslaughter, 67. MUSTER: Falsely making or signing, etc., 985. Into the service; place of; mileage on discharge, 876. MUTINOUS: Assembly; punishment for. Navy, 979. Words; punishment for uttering, in Navy, 984. MUTINY: Committing or inciting on board vessels, 1351, 1352. Homicide committed in suppressing, 57. Punishment for, Navy, 979. NAMES: See Vessels of the Navy. Assumed; discharge certificates and orders accepting resignations in true name, 1379, 1380. Monitors, 1261, 1262, 1304, 1305. 1642 INDEX. NAMES— Continued. Naval vessels, 774. Parties to bonds, 482, 483. NARCOTICS: Midshipmen to be instructed as to nature and effects of, 1194, 1195. NATIONAL CEMETERIES: Burial in, 1163. NATIONAL DEFENSE: Council of; creation, duties, etc., 1465, 1466. Offenses relating to, 1327, 1482. NATIONAL ENSIGN: Pennant of Naval Reserve Force not to be flown in lieu of, 1448. NATIONAL FORESTS: Use of earth, stone, and timber by Navy, 1409. NATIONAL GUARD: Appointment of officers from naval and reserve officers, etc., 1412. Leave of absence, civil employees belonging to, 1412. Reinstatement of civU employees after service in, 1484. NATION.^L HOME FOR DISABLED VOLUNTEER SOLDIERS: Admission to, 1400, 1401. NATIONAL NAVAL VOLUNTEERS: Laws relating to, repealed, 1455, 1508. Members transferred to Naval Reser\-e Force, 1508, 1509. NATION^IL RIFLE ASSOCI.ATION: Sale of guns and ammunition to, 1516. NATIONAL TROPHT: Contested for, by naval personnel, 1413. NATIVES: See Inhabitants. Insular possessions, naturalization of, 114. N ATUR ALIZ ATI ON : Aliens in the naval service, etc., 140, 1505-1507. Deserter in time of war; prohibited, 1077, 1078. Discharged enlisted men, 567, 568. Filipinos, Porto Ricans etc. 1506. Indians, 137. Japanese, 139. Natives of insular possessions, 114. Naval Reserve Force, 1443. Power of Congress, 36. NAUTICAL ALMANAC: Director of; recommendation of board of visitors. Naval Observatory, as to flUing vacancy, 1276. Exchange of data with foreign offices; use of employees, etc., 1382, 1383. General provisions relating to, 391-393. Number of copies to be printed, 1234, 1278. Pay of officer in charge of, 391. Sale of, by Navy Department, 1278. disposal of proceeds, 1234, 1235. NAUTICAL BOOKS: Preparation and sale of, Hydrographic Office, 390, 1236, 1237. NAUTICAL SCHOOL: See Marine schools: Military schools. Detail of enlisted men to, Philippines, 1297. naval officers for duty in, 1368. Loan of naval equipment to military schools, 1277. naval vessels and equipment to, 1367, 1368. to, in PhiUppines, 1297. NAVAL ACADE>IY: See Midshipmtn. Academic Board, authority of, 751, 753, 754. course, 762-765, 1369. Academic officers; duty to report offenses by midship- men, 1287. NAVAL ACADEMY— Continued. Accounts relating to, audited by Auditor for the Navy Department, 1224. Appropriations, how applied, 751. Assistant profassors; duty to report offenses by mid- shipmen, 1287. Band; competition with civilians, 1304, 1411, 1412. organization, etc., 1355, 1356, 1530. pay of, 818, 891, 1355, 1356, 1.530. retirement of members, 1355, 1530. Board of inquiry to determine facts, proposed dismissal of midshipman, 1286. Visitors; appointment, duties, expenses, etc., 1197, 1458. Cadet engineers, 768-770. Cadet officers, duty to report offenses by midshipmen, 1287. Chapel: use of, for memorials, 1314, 1315. Civilian instructors dismissed for failing to report offenses, 12S7. Course at, to be four years, 1369. special, may be prescribed by Secretary of the Navy, 1189. Court-martial for hazing; how convened, constituted, etc., 1178, 1286, 1287. for trial of midshipmen reviewed by Superin- tendent, 1248. necessary to dismiss midshipman for single act of hazmg, 1286. of officers for failing to report offenses by midship- men, 1287. Dauy, 770, 771. Date of graduation from, 688. ~ Dental surgeon at, 1422. Dismissal of civilian instructor for failing to report mid- shipman offenses^ 1287. of officers at, for failing to report midshipman offenses, 1287. Ethics, English, Spanish and drawing, professors of, 771 . Engineers graduated from, 689. Established at Annapolis, Md., 738. Examinations; final graduating examination defined, 687. General provisions relating to, 738-771. Hazmg defined, 1287. punishment for, 752, 757-759, 1178, 1286, 1287. mles to prevent, 1281. Instructions as to nature and effects of alcoholic drinks and narcotics, 1194, 1195. Instructors; duty to report offenses by midshipmen, 1287. Library to receive public documents, etc., 1240. Professors and instructors; number and compensation, etc., 1457, 1535. civilian; allowances to, quarters, etc., 701. duty to report offenses by midshipmen, 1287. naval officer detailed as; relative rank with Army, 667. of mathematics; duties at, 771. Regulations, 738, 739. authority to make, 195. issue of clothing to midshipmen, 770. statutes interpreted in connection with, 787. to prevent hazing, 1281. violations to be promptly reported, 1287. Secretary of, pay, 794, 805. Secretary of the Navy may prescribe special course of study at home or abroad, 1189. Servants in commissary department, 1391. Special course of study and training at home or abroad, authorized, 1189. 54641°— 22 104 1643 INDEX. NAVAL ACADE>IY-rontiniied. Storekeeper at, 770, 771. to render property returns, 1304. Students from foroipii countrips, 743, 1294. from Pliilippine Islands, 743, 1424. number of, 741-744. status of, 710, 741. title of, 739, lias, 1279. Sunday: studies not pursued on, 770. Superintendent; courts-martial convened by, 1286. courts-martial subject to review by, 1287. discretion as to causinp trial of midshipman by court-martial, 1286. dismissal of civilian instructor upon approval of Setretary of the Navy, 1287. duties respecting dismissal of midshipmen, 1286. offenses of midshipmen must be promptly re- ported to, 1287. pay. 815, 1177. removal of for neglecting instructions to midship- men, 1195. rules to prevent hazing prepared by, 1281. Supreme Court reports and digests furnished to, 1365. Title of students, 739, 1188, 1279. NAVAL AUXILIARY RESERVE: General provisions relating to, 1452, 1453. NAVAL AUXILIARY SERVICE: Naturalization of aliens with service in, 1506. NAVAL CADET: Title changed to midshipman, 1279. NAVAL COAST DEFENSE RESERVE: General provisions relating to, 1453, 1454. NAVAL CONSTRUCTORS: See Construction Corps; Staff officers. Appointment as Chief of Bureau of Construction and Repair, 1222. Detail as assistant to Bureau of Construction and Re- pair, 1418. Duties of, 1401. Pay, 793, 802. Rank of, 677, 678, 1266, 1427, 1428. NAVAL FLYING CORPS: See Flying Corps. NAVAL FORCES: See Coast and Geodetic Survey; Coast Gimrd; Details; Enlisted men; Land and Naval forces; Lighthouse Service; Marine Corps; Naval Reserve Force; Navy; Officers of the Marine Corps; Officers of the Navy; Vessels of the Navy. Coast Guard part of, 705, 706. Coast Guard to cooperate with, 1091. Coast Guard to operate as part of, during war, 1400. Command of joint Army and, 668. Cooperating with the Army; supplies and transporta- tion, 433. Defined, 58, 1496. Employment of, 772, 773, 775. at State elections, 1079. to assist distressed navigators, 775. to enforce immigration law, 1081. law against slave trade, 1.347, 1348. law restricting manufacture and possession of explosives, 1492. neutrality laws, 1319, 1320. provisions of espionage act, 1486, 1488. regulations, regattas or marine parades, 1300, 1301. sponge law, 1289, 1290. to prevent aliens fishing in Alaskan waters, 1289. to protect accused extradited from foreign govern- ment, 1167. NAVAL FORCES— Continued. Employment of, to protect customs, 1172. to protect fur seals, 1387. timber, 1088. to return fugitives from service or labor, 994. to suppress insurrection, 1169. Marine Corps headquarters part of Naval Establish- ment, 331. President's orders executed by Secretary of the Navy, 342. Public Health Service; duties during war, 1279. Regulations governing; power of Congress and Execu tive, .59, 195, 784, 787. Transportation of explosives, 1345, 1346. War-time oITenses relating to; espionage, etc., 1482-1490. NAVAL HOME: Deceased inmates; effects of, 1395. Employment of beneficiaries, 1294. Establishment of, authorized, 1159, 1160. Pensions of inmates, 1154-1156, 1261, 1395. Regulations for government of, 1160. Sales and rental of property; proceeds to naval pension fund, 1472. NAVAL HOSPITAL FUND: Deductions from pay for, 953, 1159. commandant's clerks, 904. Naval Reserve Force, 814. persons entitled to medical attendance, 904. Fines credited to, 1159. Forfeitures, desertion, credited to, 1273. Pensions of inmates, naval hospitals, 1261. Rations of patients credited to, 898. NAVAL HOSPITALS: Commanding officer may convene courts and inflict punishments, 1441. District of Columbia; procurement of fuel for, 1530. Female nurses eligilile for duty at, 1303, 1304. General provisions relating to, 1159-1163. Pensions of inmates, 1160, 1161, 1261. Purchase and erection of, 1159, 1160. Rations allowed to, for inmates, 1160. Secretary of the Nav'y, supervision over, 1159. Treatment of civil employees by United States hos- pitals and medical officers, 1468. NAVAL INTELLIGENCE: Publication, number of copies to be printed, 1272. NAVAL MILITIA: Convening courts-martial on naval vessels, 65. Court-martial jurisdiction over, 62, 64. Decisions relating to, 69-71 . Enlisted men detailed to duty with; additional to enlisted strength, 536. in active service, are enlisted men of the Navy, 5:59. Laws relating to repealed, 1455, 1508. temporarily revived, 1546. Members of, attending as witnesses before naval courts martial, 414. Naval Reserve Force members may belong to, in States, etc., 1530. Power of Congress over, 70. Purposes for which may be used, 69. Repeal of laws relating to, 1455, 1508. Service in, not naval service, 588. Temporarily part of Naval Reserve Force, 1546. Vessel loaned to; use of to maintain law, 114. NAVAL OBSERVATORY: Board of Visitors, 1276. Congressional Record furnished to, 1235. Facilities allowed students, 1218. General provisions relating to, 390-393. Observation s of; number of copies to be printed, 1235. 1644 INDEX. NAVAL OBSERVATORY— Continued. Regulations; prepared by board of visitors for Secre- tary of the Navy, 1276. Superintendent, is commandant of a naval station, 391 . is lino officer; rank, 1276, 1277. pay of, 390. NAVAL OPERATIONS: See Chkfof Naval Opcralions. NAVAL PENSION FUND: Credited with unclaimed money, deceased inmates of Naval Home, 1395. Funds of deceased naval personnel credited to, 1503. General pro\isions relating to, llO:?, 1146, 1153-1156, 1201. Proceeds of sales, etc., credited to, 1472. NAVAL PETROLEUM RESERVES: Leases, etc., 1532, 1533. Proceeds from leases of, credited to Miscellaneous Re- ceipts, 1533. Proceeds from; use of; fimd created, 1399. Use of, by leasing, etc.; sale of products, 1545. NAVAL RESERVATIONS: See Reservations. Alaskan coal lands; reserved for tinvj, 1547, 1548. Indianhead, jurisdiction of United States, 294. Jurisdiction, 292-294. Jurisdiction, navy yards and stations, 292. Leases granted by Secretary of the Nav-y; oil, min- eral, or phosphate lands excepted, 1419. Lease of petroleum reserves, etc., 1532, 1533. Offenses committed in; criminal code, 1348-1351; 1353- 1354. Oil lands; development of; leases; disposal of prod- ucts, etc., 1545. Petroleum reserves; use of proceeds; fund created, 1399. PuIjUc land provisions not applicable to, 1087. State laws applicable in; criminal code, 1351. Transfer of, to other departments; 295, NAVAL RESERVE: Class of Naval Reserve Force, 1509. quaUfications for, etc., 1451, 1452. General provisions relating to; whether superseded by later law, etc., 1404, 1405. List of persons eligible for appointment in time of war; 1392, 1393. Repeal in part of law estabUshing, 1455. NAVAL RESERVE FLYING CORPS: General provisions relating to, 1454. NAVAL RESERVE FORCE: SeePay of Navgl Establishment. Active service; credited to enlisted men, warrant offi- cers and pay clerks. Navy and Marine Corps, 1529, 1530. diu'ing peace; afloat; confirmed members, 1510. other than training; no retainer pay allowed, 1510. during war, 1443. or emergency, 1447. Naval Auxiliary Reserve, 1452. enlisted ratings, authorized to supply deficiencies in Navy, 1548, 1549. enrolled members; subject to Navy laws and regulations, 1511. for confirmation, 1444, 1445. for confirmation and efficiency. Naval Coast De- fense Reserve, 1453. for confirmation and efficiency. Naval Reserve Flying Corps, 1454. for confirmation; Naval Reserve, 1452. lor efficiency; Fleet Naval Reserve, 1552. N.4VAL RESERVE FORCE— Continued. Active service for efficiency; Naval Auxiliary Re- serve, 1452. for efficiency; Naval Reserve, 1452, 1509. for training, 1444. enrolled members of Fleet Naval Reserve, 1449. members reUeved from by Secretary of the Navy, 1510. officers counted as part of commissioned strength of the Navy, 1549. officers, in the aviation and auxiliary service, 1549. on shore, restricted, 1528. pay; computation of service for, 1511. Age for disenroUment, 1510. for enrollment; imder instruction in summer schools for boys, 1546. requirements for Naval Reserve, 1509. Allowances not reduced by appointment as officers in, 1444, 1451. Appointments; examinations required for, 1445. former officers and midshipmen, 1445. Fleet Naval Reserve, 1448. how made, 1444. members in Fleet Naval Reserve, 1451. Appropriation credited with retainer pay withheld; use of, 1552. Auxiliary service; active duty authorized in, 1549. vessels of United States; officers and men must belong to Reserve, 1448. Aviation service; active duty authorized in, 1549. Badge issued members; unauthorized wearing of, 1447. Classes in, 1442, 1443. Command; restrictions on. Naval Auxiliary Reserve, 1453. Naval Coast Defense Reserve and Naval Reserve Flying Corps, 1511. Commissions issued members of the Fleet Naval Re- serve, 1451. Commissioned officers; appointment of, 1444. eUgible for membership on courts-martial, 1494. Confirmation in grade; instruction prior to, 1444. requirements for, 1444, 1445. requirements for. Naval Auxiliary Reserve, 1452. Court-martial jurisdiction after release from active duty, 976. Death gratuity law not applicable to, 1547. Dental Reserve Corps memberstransferred to, 15(K). Discharge, Fleet Naval Reserve; restrictions on, 1451. on request; refund of clothing gratuity, 1444, 1447. DisenroUment for age, 1510. Engineering duties, 1443. EnUsted man. Navy; transferred to, 871, 1449, 14,54. in Navy or Marine Corps; travel pay allowed, 1551, 1552. Enrolled members; laws and regulations governing, 1511. Enrollment; term of, 1444. to be for general service only, 1549. Examination for appointment and promotion, 1445. for appointment to office in; members of Fleet Naval Reserve, 1451, for confirmation, 1444, 1445. for provisional rank, 1444. Examining board for appointment and promotion in; how constituted, 14-15. FaiUng to perform duty for maintaining efficiency; retainer pay withheld, 1552. to train; retainer pay withheld, 1546. Fleet Naval Reserve, 1448-1451. 1645 INDEX. NAVAL KESERVE FORCE-Continued. Fleet N'uviil Reserve, minimum sonice for mainte- nance of efTiciency, l'>o2. ( icneral provisions relating to, 1442-1455. liratuitics not reduced by appointment to office in, 1444,1451. Laws and regulations; members subject to, 1446, 1447, 1451. Line officer for deck or engineering duties, 1443. Marine Corps Reserve, 145-1, 1455. Medals of honor, etc.; additional pay to enrolled persons, 1521. Medical board for appointment and promotion, 1445. Medical Reserve Corps members transferred to, 1509. Members; character of service for which enrolled, 1453. citizenship; obUgation assumed; naturalization, 1443. may hold public employment, except in mOitary service, 1440. may revert to status in regular Navy or Marine Corps, 1529, 1530. subject to naval laws, etc., 1446, 1447, 1451. Midshipmen appointed from members of, 744, 1502. MUeagc and transportation when released from active duty, 1415. National ensign; pennant not to be flown in lieu of, 144S. National Naval Volunteers transferred to, 1508, 1509. Naval Auxiliary Reserve, 1452, 1453. Naval Coast Defense Reserve, 1453-1454. restrictions on exercise of command, 1511. Naval Jlilitia; members may belong to, 1530. temporarily made part of, 1546. Naval Reserve; age limits; minimum active service, 1509. qualifications, etc., 1451, 1452, 1509. repeal of old law, in part, 1455. Naval Reserve Flying Corps, 1454. restrictions on exercise of command, 1511. Oaths; allegiance, 1444. authority to administer, 1240. Pay, 808-815. active service; computation of longevity. 1511. and allowances for active duty, 1447. when not actively employed, 1447. Pennant or flag for merchant vessels commanded by members, 1448. l^rccedence of members with each other and regular service, 1511. Promotions; examinations required for, 1445. in time of peace not above lieutenant commander, 1510. in time of war or emergency above lieutenant comtmander, 1510. Provisional grade on enrollment, 1444. Qualifications; enrollments to be for general service only, 1549. for Fleet Naval Reserve, 1448. for Naval Auxiliary Reserve, 1452. for Naval Coast Defense Reserve, 1453. for Naval Rcsers-e, 1451, 1509. for Naval Reserve Flying Corps, 1454. for Volunteer Naval Reserve, 1454. Rank of members limited to lieutenant commander, 1509. Ranks and ratings, 1443. Reenlistment in regular Navy after service in Fleet Naval Reserve, 1450. Rcenrollment of members in rank, grade or rating held on last enrollment, 1509. Regulations governing, 1443. NAVAL RESERVE FORCE— Continued. Regulations governing enrollment in Naval Coast De- fense Reserve, 1453. examinations for confirmation, 1444, 1445. promotions in, 1510. traveling allowance. Fleet Naval Reserve, 1449. Regulations of Navy; members subject to, 1446, 1447, 1451, 1511. subject to while wearing uniform, 1511. Release from active duty; deposits paid as though discharged, S77. Repeal of old Reserve law, in part, 1455. Retainer pay, after confirmation, 1509. before confirmation, 1445. chargeable to "Pay of the Navy," and "Pay, Marine Corps," 1455. conditions of payment, 1445. enrolled men. Fleet Naval Reserve, 1449. Fleet Naval Reserve; increased on reenrollment, 1450. reenrollment without performing minimum service, 1449. forfeited for cause, Fleet Naval Reserve, 14.50, 1451. increased for heroism and good conduct marks, 1450. increased on reenrollment, 1445, 1446. Naval Auxiliary Reserve, 1453. Naval Reserve Fljing Corps, 1454. not allowed in time of peace when on active duty other than training, 1510. not reduced by appointment as officer, 1444, 1451. service credited for, 1509. transferred members of Fleet Naval Reserve, 1450. when paid, 1446. while on active duty, 1445. withlield for cause, 1546, 1552. Retirement, enrolled members, 20 years' service, 1440. limited to physic al disability, 1509, 1510. of officers for physical disabOity, 1549. of transferred members; 30 years' ser-\-ice, 1449, 1451. service credited for, 1509. Schools of instruction for reservists and applicants, 144S. Service credited for retainer pay and retirement, 1509. credited to enlisted men transferred to, 1449. to members for active duty pay, 1511. Summer schools for boys; students to enroll in Naval Reserve Force, 1546. Temporary appointments in Navy durmg war or emergency; clothing gratuity not checked, 1510. Term of enrollment, under instruction in schools for boys, 1546. Transfer betweeeti classes of, 1448. of enlisted men to; constructive service credited, 1449. of enlisted men to Fleet Naval Reserve, 1449. of enUsted men to Naval Reserve Flying Corps, 1454. of officers to Naval Reserve Flying Corps, 1454. of officers to regular Navy, 1549, 1550. to regular Navy; age requirements, 1551. to regular Navy or Marine Corps, 1529. to regular Navy; rank limited to lieutenant, 1550. Travel allowance, active service in Fleet Naval Re- serve, 1449. Uniform gratuity, 1510. amount credited; refund on discharge, 1444, 1447. not checked on temporary appoLatment to Navy during war or emergency, 1510. Uniform outfit, Fleet Naval Reserve, 1451. wearing of, when not in active service; oflfenses committed, 1511. 1646 INDEX. NAVAL, RESERVE FORCE— Continued. Vessels; contracts with owners for use of, by Navy during war or emergency, 1453. owners of, may eiiroU in Naval Coast Defense Re- serve, 1453. Volunteer Naval Reserve, 1454. Warrant officers; appointment of, 1444. appointment of, in Fleet Naval Reser\-e, 1451. Women enrolled in, 1531. NAVAL, SERVICE: See Naval Forces; Navy. Defined; Marine Corps included, 920, 921. to include service on any vessel pursuant to com- petent orders, 1493. Marine officers who resign from , may be reinstated , 1461 . NAVAL SOLICITOR: See Judge A, dvocate General. Office of, in Department of Justice, 282, 359. NAV.4JL STATIONS: See Navy yard and stations. NAVAL STOREKEEPERS: Appointment and number of, 531. NAVAL SUPPLY ACCOUNT: Appropriations credited with appraised value of stores, etc., 1397. Creation of, 1366, 1367. Losses, how charged, 1557. Prices at which material expended, 1557. Sales from, credited to naval supplj^ account fund, 1557. NAVAL SUPPLY ACCOUNT FUND: Creation of; amount; charges and credits, 1557. NAVAL SURGEONS: See Boards. Board of; examinations for promotion, 707-710. Board of; Secretary of the Navy may act for President, 1481, 1482. NAVIGATION: See Bureaus; Chiefs of bureaus. Collisions; duties of master; penalty, 1215, 1216. Derelicts and wrecks; marking and removal of; Inter- national agreement, 1223. General provisions relating to, 1125-1131. Hydrographic Office; duties for improving means of, 387. Hydrographic Office publications; preparation and sale of, 1236, 1237. Laws and regulations; Shipping Board to reeoiamend changes to Congress, 1467. License regulations, etc., not applicaijle to officers of public vessels, 1135. Maps, charts and nautical books, prepared and sold by Hydrographic Office, 390. Pilotage; State discrimination against national vesseLs forbidden, 1130. Regulations to protect, against target practice, proving operations, etc., 1519. transportation of explosives, etc., on navigable waters, 1519. Rules for preventing collisions at sea; international, 1204-1215. Great Lakes, etc., 1240-1246. harbors, rivers and inland waters, except Great Lakes and Red River of the North, etc., 1251- 1261. motor boats, 1355-1358. on the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries, 1125-1130, 1135, 1246, 1247. Rules governing, certain inland waters, 1246, 1247. Pearl Harbor, 13^2. regattas or marine parades, 1300, 1301. NAVIGATORS: Detail of officers to naval vessels, 577. Hydrographic Office to provide manuals for use of, 387. Naval vessels to assist, in distress, 775. Sale of publications to, Hydrographic Office, 1236, 1237. NAVY: See Articles for the Government of the Navy; Courts- Martial; Enlisted men; Marine Corps; Naval forces; Naval Reserve Force; Officers of the Marine Corps; Officers of the Navy; Retired enlisted men; Retired officers; Staff officers; Vessel^ of the Navy. Appointments in regular Navy during war, 1392. Coast and Geodetic Survey transferred to, during war or emergency, 1479, 1480. Coast Guard operating as part of; expenses; adjust- ment of appropriations, 1456. operating as part of; laws to which subject, 14.55. part of, 705, 706. when serving with, 539. Compulsory service in, 47. involuntary servitude, 136. Congress to make regulations for, 58. to provide and maintain, 47. Constitution appUcable to, 68. Defined, .539. classes of personnel included, 928. to include Coast Guard, 1524. whether Marine Corps included, 962, 963. Drafted officers of merchant vessels; pensions, wages, etc., 1249. General provisions relating to, 784^-790. Laws, appUcable to Marine Corps, 962. governing, where found, 1. Lighthouse Service transferred to juriscUction of, during war or emergency, 145<), 1457. Line officers; grades of, 447. Marine Corps normally part of, 957-960. Naval militia part of, when serving with, 539. Officer's responsibihty for illegal acts, 54. Procurement of suppUes and stores for; regulations governing, 787, 788. Public Health Service; duties duiing war, 1279. Stateinterference with, 47. NA>Tr AGENTS: Estimates and appropriations for expenses of, 1103. NA\-Y BANTJS: Defined; ilarine Band not included, 952. Not to compete with civilians, 1304. N.WT^ BUILDING: See Buildings; State, War and Navy Building. District of Columbia laws appUcable to, 332. General provisions relating to, 331, 332. Superintendent of, 332. Supervision of, 1.502, 1.503. NAVY CROSSES: President maj' delegate power of awarding, 1522. Provisions relating to, 1521-1523. NAVY DEPARTMENT: See Appropriations; Bureaus; Chiefs of Bureau.i; Chief of Naval Operations; Civil establishment; Contracts; Estimates; Executive departments; Heads of depart- ments; Hydrographic Office; Judge A dvocate General; Pay of civil establishment; Printing and binding; Public property; Records; Reports; Secretary of the Navy. Accounts of expenditures to show disbursements of each bureau, 1102, 1103. Appropriations controUed and expended by direction oftheSeoretar^^ 1104. for each bureau to be kept separate in Treasury, 1104. permanent, 1106, 1107. 1647 INDEX. NAVY DEPARTMENT-Continued . Assistant Secretary, appointment of, 120-t. duties of, 1217. Supreme Court reports and digests furnished to, 1365. Bonds of disbursing officers may be increased by Pres- dcnt, 109S. Kulldings occupied by, 331, 332. super\-ision of, 332, l')02, 1503. Business, distribution of, 357. Clerks and employees: general provisions relating to, 334-341. number and compensation of, 334, 335. Commissions of officers prepared and sealed by, 1248. Congressional Record furnished to, 1235. Contracts to be filed in offices of accounting officers, 1118. EstabUshed as an executive department, 189. at the seat of Government, 331. Estimates, 385. items of expenditure for which submitted, 1102, 1103. General provisions relating to, 331-393. Hours of business, 201. Hydrograpliic Office attached to Bureau of Navigation, 1236. Judge Advocate General's office; duties, etc.. Use, 1187. Legal advice; Attorney General to provide, 321. Marine Corps not a part of, 192, 331, 957. Medals of honor prepared under direction of, 512. Naval officers appointed as chiefs of bureaus, 362. detailed to duty in, 364, 389, 466. not part of department, 333. unless holding statutory position, 213, 215. Not a naval station, 332. Official Register of the United States to befurnished to, 1236. Permanent annual appropriations, 1106, 1107. Property, books and records: custody of, 352. flags captured from enemy, 381, 790. loaned to, 380. loan of scientific instruments, 1201. supplies purchased and issued without regard to bureaus, 1216. transfer between bureaus, with or without charge, 1203. Records; contracts to be filed in offices of accounting officers, 1118. custody of, 361. destroying summary court-martial, after two years, 1009, 1311. desired for use in court, 424. evidence before courts, 1009, 1010, 1023, 1036. promotion boards to examine, 722, 723. publication of, 1295. report of survey upon value of enemy vessels, 1477. submitted to President, promotion cases, 724. transferred from other departments, 1283, 1295, 1389. treatment and character of diseases, 466. Session laws furnished to, 1235. Statutes at Large furnished to, 1235. NAVY aiAIL CLERKS: Assistants; designation of, etc., 1306. Bonds, 1306, 1387, 1388. Designation of; duties; oath; bond; compensation; regulations governing, 1306. Duty on shore, 1513, 1514. with expeditionary forces, 1474. Jurisdiction of accounting officers, 237. Mates eligible for appointment, 522. NAVY MAIL CLERKS— Continued. Oath of office, 328, 1306. Pay of, 865, 1306. NAVY ORDERS: Procurement of supplies during war, 1413. of vessels, etc., during war, 1475, 1476. NAVY PAY OFFICE: Not an office of Navy Department, 359. N.AATT PERSONNEL ACT: March 3, 1899, text of, 1263-1271. NAVY REGISTER: See licgislcr. Advancement for war service designated in, 1275, (276. History and definition of, 044-016. Printing of extra number authorized, 1235. Retired officers; names of, wholly retired, omitted from, 631 . Navy, to be borne on, 631. NAVY REGULATIONS: See Regulations. NAVY YARDS AND STATIONS: See Civil establishment; Pay of civil establishment. Abolishing navy yards without legislative authority, 779. Aid or executive of commandant, 669. Aid or executive of commandant: construction officer ineligible, 508, 779. Apprentices at, are not enlisted men, 538. Appropriations for maintenance of naval training stations, 1530. Boards to report upon repairs to vessels, 776, 777. Captain of the yard: additional pay as aid, 670. Civil engineers appointed fpr duty at, 531. Civil establishment; appointment of master work- men, 779, 780. leave of absence outside United States; cumula- tive, 1417. laborers, employment of, 780. no increase before elections, 1180. nimiber and rates of pay fl-xed by Secretary, 1312, 1313. pay, leave, holidays, etc., 781-783. political opinion not ground for discharge, 783. preference for appointment, 1313. wages, how fixed, 1177. Commandant, appointment of, 779. construction officer not eligible, 507. deck coiu'ts ordered by, 1308. duty of example and correction, 978, 979. general court-martial convened by, 1310, 1442. marine officer ineligible, 955. oaths administered by, 1240. precedence of, 669. Definition of, 779. Divine service to be conducted on Sunday, 979. Eight-hour law. Government work, 1117, 1219, 1220, 1474. Elections; force not increased before, 1180. Enlisted men; employment of, when ships are docked or laid up for repairs, 1383. Espionage; illegally obtaining information concern- ing, etc., 1482. First lieutenant; detail of officer to duty as, 577. General provisions relating to, 772-783. Holidays allowed per diem employees, 1194, 1198. regulations governing pay on, 787. Lands purchased for; title and jurisdiction, 282. Leave of absence, civil employees, 1464. Line officers detailed to duty under staff officers at, 1359. Mandamus against board of labor employment at, 780. 1648 INDEX. NAVY YARDS AND STATIONS— Continued. Mare Island; pay of commandant, 815, 1177. Naval Observatory held to be a naval station, 391. Naval officers not to be appointed to civil positions, 779, 780. Navy Department is not a naval station, 332. Not part of an executive department, 192. Offices at navy yards may be abolished by Secretary oftheNa^T, 533. Overhead charges distributed between appropriations, 139S. Permanent station, defined, 1536. Political contributions prohilnted, 783. Power plants consolidated under Bureau of Yards and Docks, 1282. Property on hand; annual report of, 381. Repair of vessels, 776. for Shipping Board, 1466. Rope wallis; superintendent of, 779, 780. * Shipping Board may have vessels repaired and con- structed in na^-y j'ards, 1466. Steam engines; estimates and appropriations for re- pairs and attendance, 1103. Storekeepers appointed for duty at, 531. Trading at, for private benefit; punishment, Navy, 989. Transfer of property from one yard to another requires legislative authority, 779. Useless papers; disposal of, 1401. Vessels under construction at, not completed because of expense, 1190. Washington, D. C; model tank for experiments at, 1250. use as a manufacturing yard, 1189. Young Men's Christian Association buildings in, 1366. NEGLECT OF DUTY: Dismissal mandatory on conviction, in certain cases, 1287. NEGLIGENCE: See Ankles for the government of the Navy. Sti'anding or hazarding naval veosel, or running upon rock or shoal, 985. NEUTRALITY: Enforcement of, 1486-1488. Naval forces employed to enforce, 1319. Offenses agamst, 1318-1320. NEWSPAPERS: Advertising, District of Columbia, 1123. estimates and appropriations for. Navy, 1103. for foreign supplies, 1114. for proposals for naval supphes and transportation, nil. rates, 11&4. District of Columbia, 1187. sale of naval vessels, 1192. written authority required for, 1124. Expenditures for, limited, 225. Payment for subscriptions in advance, 1401. PubUcation of receipts and expenditures relating to Navy, 262. Restrictions on purchase of, 1073. NEW TRIAL: Accused requesting; former jeopardy, 121. Court-martial, 1047. Court-martial; members of former court ineligible, 1018. NEW YORK HARBOR: Naval officer detailed as supervisor of, 1198, 1199. NITRATE SUPPLY: Product of plants available for Navy, 1413. N03nNATI0N; See A ppointments: Midshipmen. Candidates for midsliipmen, 744-749, 1294, 1295. Confirmation of Senate indirectly given, 735. Ineligible; effect of confirmation, 96. NONCOManSSIONKD OFFICERS: Petty officer of Na\'y included, 441. NON COMPOS: Insane person defined, 185. NOTARIES PUBLIC: Employment as attorneys before executive depart- ments, 1295. States and territories; authorized to administer oaths and take acknowledgments, 1072. States; oath of allegiance may be administered by, 1093. NUMBERS: See Advance mcTit: Loss of numbers. NURSE CORPS (FEMALE): Commutation allowed, 1482. Compensation for death or disability, 1498-1501, 1546, 1.547. under War Risk act in lieu of employees' compen-' sation benefits, 1.500. Deaih gratuity law applicable to, 1546, 1547. Organization, appointments, examinations, duties, pay, etc., 13a3, 1304. Pay, allowances, leave of absence, 8C7, 808. Relative rank in Army, 808. OATHS: Acknowledgment of deeds in Guam and Samoa, 1291, 1292. Affirmation satisfies requirement, 185. Allegiance, Naval Reserve Force, 1444. officers and men of the Nax^y, 1271. persons prosecuting claims against United States, 1093. Authority to admmister, 217-219, 1072, 1073, 1240. prosecution of claims againsi United States, 1093. Chief clerks may administer oaths of office, 1215. to accounts for travel and other expenses, 1386. Claims for lost or damaged property, naval personnel, 1493. Clerks designated may administer to accounts for travel and other expenses, 1386. Contracts; officer filing return in Returns Office, 1119. Counsel required to take when appointed by Attorney General, 325. Courts of inquiry may administer, 1055. members and judge advocate to take, 1056. Deck courts may administer, 1308. Enlisted men. Marine Corps, 935. Navy, 1271. Examining board; statements submitted to, 723. False acknowledgments by officer authorized to ad- minister, 1323. in connection with claims against United States, 990. General courts-martial; members and judge advocate, 1019. Homestead laws; administration of, 108:J. Investigating officers may administer, 217. Minor enlisting in Navy, 1402, 1403. Naval officers authorized to administer for purposes of naval administration, 1240. may administer to postal employees, 328. Officers authorized to administer, 217-219, 1240. Of office; chief clerks to administer, 1215. civilian appointed on retired list, .\rmy, 633. civil, military, or naval service, 1065, 1066. construed as acceptance of appointment, 96, 207. 1649 INDEX. OATHS— Continued . Of oHicc; general provisions relating to, 337-338. Marine Corps, 935. midshipmen, 748. naval oflicers, 1271. Navy mail clerks and assistants, 328, 1306. omission of postal employees to take, does not allett criminal liability, 1345. Postal Service, 328. promotion, 654. promotion of civil employee, 1215. reappointment of officer, 97. violated by officer exceeding jurisdiction, 320. Omitted; statement of candidate for promotion, 724. Persons prosecuting claims against United States to take, 1093. Retiring board members, 603. Secretary of the Navy may empower oflBcers to ad- minister, 1240. Selection board members required to take, 1431. Special counsel in foreign coimtry, 224. Summary courts-martial; members and recorder, 1006. Superintendent of Naval Observatory may administer, 391. Witnesses before any naval court-martial, 1021. summary courts-martial, 1006. OBEDIENCE: Commanding officers entitled to, from officers having earlier date, 576. Honorable discharge testimonial of, 573. Petty officers entitled to, 525. Preference in granting leave of absence to faithful and obedient, 574. Retired officer entitled to, when commanding in time of war, 660. OBITER DICTA: Attorney General's opinions, 311. OBSCENE: Books, etc., importing or transporting, 1347. Indecent, etc., matter unmailable, 1340. on wrappers of mail or postals, 1341. I-iterature, etc., circulation of, 1353. OBSERVATIONS: Naval Observatory; number of copies to be printed, 1235. OBSERVATORY: See Naval Observatory, OCEAN AND LAKE SURVEYS: Hydrographic Office, duties of, 388. OCEAN aiAIL VESSELS: Commandeered by the Navy for use as transports or cruisers, 1217. Construction of, subject to approval by Secretary of the Navy, 1216. Detail of naval officers for duty on, 1217. OFFENDERS: Refusing or failing to bring to pimishment or to aid others; punishment, Navy, 985. OFFENSES: See Articles for the Government of the Navy; Crimes. Different in degree; plea in bar of trial, 120. General; not specified; punishment. Navy, 996-1002. On shore, against inhabitants, punishment. Navy, 985. Violating both military and civil law, 120. law of two governments, 120. OFFICE: See Grades. Acceptance of incompatible; effect, 989, 1069. Chiefs of bureaus. Navy Department, hold two offices 366. ' OFFICE— Continued . Civil; additional compensation not allowed to incum- bent, 1060-1071, 1177. chiefs of bureaus, Navy Department, 365. naval officers forbidden to hold emplo^onent with certain contractors, 1250. preference in appointment of persons disabled in military service, 1065. restrictions on holding; double compensation; additional pay, 472, 950, 951, 1066-1071, 1177, 1411. Definition, 90, 1009, 1070. discharge of special duties does not constitute, 1075. distinguished from title, grade, and rank, 449, 450, 837, 910. Disqualification to hold; deserter in time of war, 1077, 1078. sentence of court-martial; remission of, 1053. Foreign government, acceptance of by United States of^cer, 75. Head of department can not abolish, 194. Incompatible; definition of, 989, 1069. naval office and civil position in Navy Depart- ment, 389. naval office and diplomatic or consular appoint- ment, 579. vacancy created by acceptance of, 215. Naval officers holding private employment, 576. Not property, 124. Oath of; civil, military and naval service, 1065, 1066. Pay; additional not allowed, 1177. of two offices not allowed, 472, 950, 951, 1066-1071, 1411. Private emplojrment; persons discharged from mili- tary service, 1065. Rank distinguished, 449, 450, 837, 910. Secretary of the Navy may abolish at navy yards, 533. Territorial; naval personnel not to hold, 1075. Two offices; chiefs of bureaus in Navy Department, 366. holding of, by naval officers detailed to Dominican RepubHc and Haiti, 1416, 1502. holding of, by naval officers detailed to South American Republics, 1399, 1556. incompatible resignation implied, 529. naval officer may hold appointment in Virgin Islands, 1075. restrictions on double salaries, 472, 950, 951, 1066- 1071, 1411. retired officer and Member of Congress, 643. retired officers holding, 337. Unauthorized; no salary for, 1066. OFFICER AND GENTLEMAN: Conduct unbecoming; punishment. Navy, 998-1000. OFFICERS: See Appointments; Civil establishment; Commission; De facto; Discharge; Dismissal; Oaths; Officers of the Marine Corps; Officers of the Navy; Pay of civil es- tablishment; Pay of Naval Establishment . Acceptance of appointment necessary to vest office, 96. oath of office constitutes, 96. Additional duties not equivalent to new appointment, 94. pay not allowed, 1177. Appointing power, 89. Biennial register of, required, 228, 1235, 1236. Defined, 89, 1010. includes clerks, 90, 413. persons authorized to perform duties, 185. President and Secretary of the Navy, 1040. whether includes retired officers, 224, 438. Dismissal, 97. 1650 INDEX. OFFICERS— Continued . Effects lost on sunk or captured vessel, 269. Emplo3rment in excess of appropriations restricted, 1104. Former, not to prosecute claims against United States, 224. General provisions relating to, 1065-1073. Illegal acts, Congress may protect from responsibility for, 57. Pay of civil, where appropriation inadequate, 204. Positions can not be abolished without statutory authority, 212. Qualifications of candidate final after appointment, 96. Resignation; right of, 99. Reinstatement after dismissal, 94. Responsibility for illegal acts, 54, 78, 350, 351. Retired officers; whether "office" includes, 224, 438. Temporary appointments, 99. United States, defined, 89. Veto of bill restoring dismissed officer, 34. OFFICERS AND ENLISTED MEN: Definition of, 928. OFFICERS OF THE MARINE CORPS: See Acting officers; Additional number officer.?; Ad- vancement; AllowaTices; Appointments; Army; Ar- ticles for the Government of the Navy; Civil employ- ment; Courts-martial; Details; Dianmsal; Examina- tions; Length of service; Marine Corps; Marine Corps Reserve; Pay of Naval Establishment; Promotion; EanTc; Retired officers; Retirement; Second lieutenants. Additional numbers, 929, 1275, 1276, 12S9, 1392, 1458, 1459. war service, 1275, 1276, 1289. Advancement for conduct in battle or heroism, 921, 933, 1275, 1276. Allotments of pay by, 1249. Appointment, 922, 925, 1188, 1189, 1270, 1281, 1392. commencement of pay, 1221, 1222. major general commandant, 1392, 1460. Arrest; exemption from, in certain cases, 935. Brevet commissions, 931-933. Civil employment restricted; private companies, 1250. office in Virgin Islands may be held by, 1075. Commandant, 215, 928, 929, 1392, 1459, 1460, 1512. Computation of numbers, 1458, 1459. final fractions, 920, 921, 1428, 1458. major general commandant counted as senior to colonel, 1459. senior stafi officers counted as colonels, 1460. Counsel before courts-martial, etc.; punishment for accepting fee, 1333. Detailed as assistant to chief of Naval Operations, 1418. to Judge Advocate General, 1418. Detailed away from headquarters; staff officers, 921. for service on vessels, 954. to Dominician Republic, 1502. to Haiti, 1416. Director of civiMan marksmanship; appointment, 1465. Discharge; failure to pass professional reexamination for promotion, 1463. Distribution in rank, 1458, 1459. Dropped from rolls for unauthorized absence, etc., 1.503. Examinations for promotion, 711, 924-927, 1270. failure to pass, 1463. physical, 707, 708, 1463. Families; payment of death gratuity to, 1546, 1547. transportation fiunished on permanent change of station, 1535, 1536. Gradesof, 917, 918, 14.58. Homesteads; general provisions relating to, 1083-1087. Influencing legislation; punishment, 1527. OFFICERS OF THE MARINE CORPS— Cont'd. Length of service credited to, 927, 928, 1535. Major General Commandant, 215, 928, 929, 1392, 1459, 1400, 1512. Major generals; grade created; appointments author- ized, 1512. National Guard officers appointed from, 1412. Navy yards and vessels; ineligible for command of, 955. Number of, 917-919, 1416, 1458. additional numbers, 929, 1275, 1276, 1289, 1392, 1458, 1459. computations, 920, 921, 1428, 1458. exceeding, 921. pay clerks, 919, 1515. power of Congress to reduce, 921 . staff; appointment, detail, etc., 1460, 146i. warrant officers, 918, 1462, 1479. Oaths administered by, 217-219, 1240. taken by, 935. Official Register of the United States to contain names and information concerning 1235, 1236. Pay and allowances, 936-951. Pay clerks, 918, 919, 1515. Precedence of, 930, 931. Probationary appointments, 925. Promotion; Army laws extended to, 1219. conduct in battle or heroism, 933. date of rank, 931,1459 general provisions relating to, 924-927. list; seniority; promotions made from, 1461. physical incapacity; retired rank, 965. Punishments inflicted by, without court-martial, 1441. Rank; date of, on promotion, 931, 1459. distribution in, 1458. in relation to the Army, 930, 931. of senior staff officers, 1460. on retirement, 964. Rations; not entitled to, 9.54. Reappointment after resignation, 1461. Retirement, 963-971. civil war service, 968, 1293. Service credited to, 927, 928, 1535. Staff departments, 921, 922, 1460, 1461. rank of, 929, 1460. relation to line, 921, 922, 1460. Thanks of Congress; advancement for receiving, 933. Transfer to different branch of the service, longevity credit, 1249. Two offices; pay of both not allowed, 950, 951, 1066- 1071. Uniforms, etc., sold to, at cost, 1521, 1531. Warrant officers, 918, 1462, 1479. OFFICERS OF THE NAVY: See Acting officers; Additional number officers; Advance- ment; Allowances; Appointments; Articles for the Government of the Navy; Civil employment; Commis- sioned warrant officers; Courts-martial; Details; Dis- missal; Examinations; Length of service; Naval Re- serve Force; Officers; Pay of Naval Establishment; Precedence; Promotion; Rank; Records; Retirement; Retired officers; Staff officers, Titles; Warrant officers. Absent without leave; dropped from roUs, 1011, 1012. Acting assistant surgeons, status of, 527, 528. Acting, status of, .525. Additional numbers authorized, 451, 452. engineer officers to be, 1366. excluded from computations, 1429. Naval Flying Corps, 1437. war service, 1275, 1276. Advancement for conduct in battle or extraordinary heroism, 453, 454, 734-736, 1275, 1276. 1651 INDEX. OFFICERS OF THE NAVY -Continued. Advancement to rear adniiral during war, 454. when pay commences, Si2-,s:i8. Allotments of pay by, 1249. Allowances same as Army, 1267. Appointment as chiefs of bureaus in Navy Depart- ment, 362. as National Ouard ofTicers, 1412. by President without consent of Senate; account- ing officers notified of, 1072. from graduates of Naval Academy, 765-768, 11S8, 1189, 1392. from graduates of Naval Academy; commence- ment of increased pay, 1221, 1222. of convicted deserters, 573. of dismissed midshipmen restricted, 1281. to civil offices at navy yards forbidden, 779, 780. Captured by enemy; pay, 891. Citizensliip, 571. Civil employment; ocean mail vessel; compensation allowed by contractor, 1217. office in territories; 1075. office in Virgin Islands, 1075. restricted, 1066-1071. restricted; private companies, 1250. Civil engineers held to be, 532. liability for illegal acts, 1003. Civilians commissioned as, in time of war, 1392, 1393. Classified as commissioned, warrant and petty, 448. Clerks, status of, 525, 534. Commissioned warrant officers; designation of chief warrant officers, 512. Commodore omitted from grades of line, 1264. Computations, 1427. time for making, 1529. Counsel before courts-martial, departments, etc., 1333. Courage, skUl and genius rewarded, 454. Definition of, .526. cadet engineers included, 832. mileage laws, 846. retirement laws, 586, .587. Demanding compensation for transportation of articles other than gold, silver or jewels, 9S5. Detailed as assistants to chief of Naval Operations, 1418. as assistants to chiefs of bureaus and Judge Ad- vocate General, 466, 1222, 1224, 1261, 1284, 1418. as naval attach^, 828, 829. to Coast and Geodetic Survey, 1151. to Dominican Republic, 1502. to educational institutions, 435-441. to examining boards coQceming repairs to vessels, 776, 777. to Haiti, 1416. to Lighthouse Service, 1149. to Nautical Almanac Office, 391. to naval vessels, 775. to Navy Department, 333, 337, 364, 389, 46«. to Navy Department but not holding statutory position, 213, 215. to War Department, 507. Diplomatic or consular office held by; effect of on commission, 579. Dismissal of, 441, 1010-1014, 1036. Distribution in grades and ranks; computations, 1427. computations, time for making, 1.529. line and staff officers, 1425, 1427. Distribution of rear admirals between upper and lower half, 1428. Dropped from rolls for unauthorized absence, etc., 1503. not qualified for promotion, 729-734. OFFICERS OF THE NAVY— Continued. Elections; not to interfere with iu States, 1079. Enlisted men appointed as; discharge, 523. Ensigns (junior grade) abolished, 1193. K.xamination for promotion; facts once determined not reopened, 1183. Exceeding number in grade, 736. Extra duties; restriction on additional pay, 1066-1071. Families; payment of death gratuity to, 1.540, 1.547. traasportation furnished on permanent change of station, 1.").35, 1.536. Flag officers: rank of, 576. Furloughed by Secretary of the Navy, 583. Furlough pay, detailed to ocean mail vessels, 1217. General provisions relations to public officers, 1065- 1073. Grades of line officers, 447, 1425. Holding private employment, 576. Homesteads; general provisions relating to, 1083-1087. Incompatible offices defined, 1069. Investigation of charges against, 217. Insane; St. Elizabeths Hospital in the District of Columbia, 1161-1163. Length of service; how computed; Army and Navy service credited, 1191. License regulations not applicable to, 1135, 1136. required when serving as master of merchant vessel, 1135, 1136. Lighthouse Service; detail to, 1149. Mates; status of, 517-519. Medical attendance, 902-904. Midshipmen, status of, 740, 741, 755-7.57, 764, 903. Minors eligible to sit as members of court-martial, 1018. Misconduct; officer to be tried by court-martial instead of retired, 622. Number; acting assistant surgeons, 527, 1261. additional to authorized strength, 451, 452, 1275, 1276, 1289, 1366, 1437. chaplains and acting chaplams, 1396. Civil Engineer Corps, 531. commissioned inline, 1424. computations to determine, 1427, 1428, 1429. computations, time for making, 1529. Dental Corps, 1421. effect of exceeding, 453. engineer officers to he additional, 1366. in any corps, grade, or rank; computations; disposition of fractions, 1427, 1428, 1429. in any grade or rank; computations; additional numbers excluded, 1429. increase in; explicit legislation required, 452. line officers, 450-453. line officers; when may be exceeded, 453. medical officers, 455, 456, 1436, 1437. midshipmen, 741-744. Naval Flying Corps; additional, 1437. naval storekeepers, 531. not increased by implication, 506. not to be exceeded, 1428. pay clerks, chief pay clerks, and acting pay clerks, 1406, 1407. permanent, not affected by act of July 11, 1919; 1528. not affected by act of June 4, 1920; 1549. pharmacists and chief pharmacists, 1420. power of Congress to reduce, 1011. staff officers, 1425. Supply Corps, 466, 467. temporary and reserve officers on active duty counted as part of, 1549. warrant officers, 509. Oaths administered by, 217-219, 1240. 1652 INDEX. OFFICERS OF THE NAVY— Continued. Oaths of allegiance, 1271. of office, 1065, 1066. Official Register of the United States to contain names and information concerning, 1236. Pay clerks, status of, 497. Presents to superiors prohibited, 1073. President acts through, 500, 501. Promotion by selection, 1430-1434, 1513. line and staff; time for convening boards, 1529. Punishments inflicted upon by commanding officer, 1002. Rank and pay; Congress may reduce, 910, 911. Reapointment of former officers during war, 1392, 1393. Records considered in examination for promotion, 722. submitted to selection boards, 1431. Reduction to another office by court martial, 988. to enlisted rating liy court-martial, 524, 988. Relative rank with Army, 662. with Marine officers, 667. Residence; in foreign country, 572. medical attendance dependent upon, 904. Restoration of, after dismissal; pay, 1178. Secretaries, status of, 525, 527. Service credited for longevity pay, 1535. Shore duty: must be required by public interests, 1191, 1218, 1219. Steerage; ensigns are, 704. Temporary; status of, 525. Thanks of Congress; advanced to rear admiral, 454. Title of master changed to lieutenant, junior grade, 1190. of midshipman changed to ensign, junior grade, 1190. of naval cadet changed to midshipman, 1279. of staff officers, not changed by rank, 1265. Total number of commissioned officers; definition of, 1424, 1425, 1426. Transfer of ensigns to Construction Corps, 1408. of temporary, reserve and Coast Guard officers to permanent Na"ST) l^-t9, 1550. to different branch of the service, longevity credit, 1249. to Naval Reserve Flying Corps, 1454. Two commissions in same office; precedence, 669. offices held by: entitled to compensation which is larger, 472. pay of both not allowed, 950, 951, 1066-1071. Unauthorized office; no salary lor, 1066. Uniforms, etc., sold to, at cost, 1521. Vessel lost or wrecked; authority over crew, 996. Volunteer; transfer to regular Na-\-y, 530. Voting in territories, restrictions on, 1075. Watch and division officers; ensigns assigned as, 704. Witnesses before civil courts, 414. in Government service, allowed actual expenses, 413. Wrecked or lost vessel; separated from; pay, 891. OFFICERS RESERVE CORPS: Government employees, members of; leave of absence reinstatement, 1476. OFFICIAL ENVELOPES: See Penalty envelopes. OFFICIAL, REGISTER: Officers and employees of United States; data required for, 228, 1235, 12:36. Printing and distribution of, 1235, 1236. OIL: Estimates and appropriations for. Navy, 1103. Sale of, to vessels of Volunteer Patrol Squadrons, 1455. OIL LANDS: Development of; leases, disposal of products, etc., 1545. Excepted from authority of Secretary of the Navy to grant leases, 1419. Leases of naval petroleum reserves, etc., 1532, 1533. OPEN MARKET: See Contracts. OPERATIONS: See Chief of Naval Operations. Surgical; whether naval personnel required to undergo, 458, 459. OPINIONS: See A ttorney General. OPPRESSION: Of subordinates; punishment for in Na\'v, 984. ORAL: Examinations; discretionary for promotion, 514. Testimony before stunmary courts-martial, 1006. ORDERS: See Disobedience; Waiting orders. Aid or executive; emanatefrom commandingofflcer,670. Appeal to President from Secretary of War, 83. Army officers; accoimting officers can not review, 240, 241. Chiefs of bureaus; emanate from Secretary of the Navy, 361, 1418. Disobedience of; accoimting officers can not relieve officers from responsibility for, 239, 240. General: violating or refusing obedience to, 985. Illegal, may be defense, 56. not a defense, 55. subordinate not boimd to obey, 352. Importance of prompt obedience to, 980. Medical treatment; naval personnel required to sub- mit, 458. Mixed duty; which is paramount, 881. Negligence in obeying; punishment for; Navy, 984. Officer authorized to travel, or traveling by permis- sion, 844, 845. Petty officers, entitled to obedience, 525. President issues through Secretary of the Navy, 342. through Secretary of War, 83. Regulations operates as, 196. Shore duty, naval officers; recitals in, 1191, 1218, 1219. Travel under; expenses allowed, 1179. mileage aOowed, 840-846. without troops, mileage, 1251. Wording of, not controlling as to character of officer's service, 878, 879. as to character of travel performed, 845. ORDINARY: Ships laid up in, 774, 895, 897. ORDINARY DISCHARGE: See Discharge. Enlisted men of the Navy, 564, 565, 886. ORDINARY SEAIVLAN: Officer reduced to rating of, 988. Rating changed to seaman, second class, 1423. ORDNANCE: See Bureaus; Chiefs of bureaus; Contracts; Projectiles; Shells. Army; sale of, to naval officers, 1312. to other departments, 1388. Loan or gift of condemned, to societies and munici- palities, 1249. Navy, purchase without advertising, 1113. tests of, 1195. unlawfully selling, stealing, etc., 990, 1325. Proving operations; regulations to protect navigation, 1519. Transfer of naval, to War Department, 1515. 1653 INDEX. ORIGINAL ENTRY: Defined; officer appointed to higher position in Navy, S30. ORPHANS: CliiUiren of deceased enlisted men preferred for civil emplojnnent, 1180. OUTFITS ON FIRST ENLISTMENT: Appropriation available for reimbursing naval per- sonnel for lost clothing, etc., 1493. Clothing furnished, Navy, 876, 877, 1203, 1403. OVERHEAD CHARGES: Distributed between naval appropriations, 1398. OXEN: Estimates and appropriations for purchase and main, tenance, Navy, 1103. PACKING BOXES: Estimates and appropriations for, Navy, 1103. PAMPHLETS: Restrictions on purchase of, 1073. P.ANA3IA RAILROAD: Bonds and contracts; provisions concerning, 1368, 1369. PAPERS: Useless; files at navy yards and stations; disposal of, 1401. in buildings under control of departments, dis- posal of, 1248. in departments, disposal of, 1202, 1203. on naval vessels, disposal of, 1381. PARADES: Marine, and regattas; regulations; enforcement of by any head of Department, 1300, 1301. Precedence of line and staff officers in, 704. PARAMOUNT: Duty, rule for determining, 881. PARDON: Acceptance, 86, 87, 122. Amnesty distinguished, 86. Conditional, 86. Constructive, 86, 573- Contempt of court, 84. Continuing punishment, remission of, 1052. Conviction necessary before recommended, 84. Court-martial sentences, remission or mitigation of, 85, 1009, 1051-1055; 1308. Decisions relating to, 83-89. Deck-court sentences, by reviewing officer, 1308. Defined, 83. DeUvery and acceptance, 86, S7, 122. Deserters; effect of, on disqualification to hold office, 582. effect of, on forfeiture of citizenship rights, 84,1078. on reenUstment, 551. Effect of, 87. Form of, 87. Legislative control of President's power, 85. Loss of numbers, continuing punishment; remission of, 1052. Partial, 86. Power of officers other than President, 85. Procedure to obtain, 87. Secretary of the Navy, remission of unexecuted portion of sentence, 669. .Suspension from rank and grade, continuing punish- ment; remission of, 1052. When may be granted, 84. PARENTS: Consent; enlistment of minors, 548-551, 994. to enrollment in Naval Reserve Force, 1546. Enlisting minors without consent of; penalty, 994. Statement as to age of minor applj-ing for enlistment, 1402, 1403. PAROLE: Court-martial jurisdiction over man paroled by civil authorities, IASTER GENERAL: See Bureaus; Chiefs of bureaus; Supply Corps. Appointment, 379. Bond, 476. Death gratuity; payment; jurisdiction of accounting officers, 233, 2:34, 1546, 1547. Prices of issues from naval supply account fixed by, 1557. Property accounts; audited by; certificate to account- ing officers, 1223. jurisdiction of accounting ofiBcers, 234. Requisitions for supplies made upon: transfer between bureaus, 1203. Title conferred on chief of bureau of SuppUes and Ac- counts, 670, 671. PAY3IASTER OF THE FLEET: Appointment of, 474. Pay, 792, SOI. PAY>L\STERS: See Supply Corps. Accounts to be signed by, when men sent from sliip, 995. Assignment of wages attested by, 892. Bonds, 474. Commanding officers not required to act as, 574. Defined; means officers of Supply Corps, 380, 471, 497, 575. Eflects of deceased persons oa vessels to be secured by, 995. PA Yj>IASTERS— Continued. Foreign stations; accounts require consular certificate as to prices of supplies, 1114. Marine Corps; counted as colonel in making computa- tions, 1460. payment of claims for damaged private property, 1493. rank, pay and allowances, 929, 1460. Promoted from passed assistant paymasters, 471. Pay, 792, 801. Rank, 676. PAYMASTERS' CLERKS: See Pay clerks. Laws relating to repealed, 1407. Pay, 1302. Subject to court-martial, 62. PAYMASTER S STEWARD: Service as, held to be naval service, 928. PAY]\1ENTS: See Contracts; Mistake of fact; Mistake of law . Accounting officers can not require officer to make, 240. Death, enlisted men; eflects lost on sunk or captured vessels, 269. Enlisted men on vessels sunk or destroyed, 264. Mandamus proceedings to compel, 256, 257. Merger of claims in checks issued for, 277. "FAY, anSCELLANEOUS:" See Appropriations. Appropriation ; available forspecial allowances to naval personnel, 1545. credited with interest, premiums and exchange, 1222. PAY OF CIVIL ESTABLISHMENT: See Checkages. Absence; as witnesses; actual expenses, 413. unauthorized; forfeiture of pay for, 1297. Additional compensation from Government prohib- ited, 208, 217, 1177. compensation from private parties restricted, 1470. extra duties; restriction on pay of two offices, 1066- 1071, 1177. not allowed for overtime work in departments, 1220, 1221. not allowed for service during leave, 1390. restriction on double salaries, 1411. rewards for suggested improvements, 1514. Annual report of, 381, 1194, 1272. Appropriations: exceeding, IISO, 1:384. for contingent and miscellaneous purposes not available for, 1105. for naval service used for; report of to Congress, 381, 1194, 1272, 1418, 1419. for new ships; restrictions on use of, 1281. inadequate: right to pay of office, 204-205. lump sum; restrictions on use of, 1307 1389, 1398, 1418, 1419, 1491, 1492, 1503. Assistant messengers, 204. Changes in statutory grades and number of clerks, 11 SO. Checkages; officer in arrears, 1072. Commences, bonded officer, prior to furnishing bond, 211. Compensation; defined, 701, 702. for disabilities, 1467-1469. Computation, monthly period, thirty-first day, 207. annual or monthly compensation, 1297. for actual service rendered, 1091. Contingent funds not available for, 1105. without specific authority, 1188. Copyists, 204. Deductions for retirement fund, 1540, 1541. paid on separation from service, etc., 1542. 1655 INDEX. PAY OF CIML ESTABLISIIMKNT— Continued. I>isl)ursing clerks, executive departments, 20i>-210. Double salaries: restrictions on, 208, 1066-1071, 1177, 1411. Estimates; form of, 1101, 1102. Heads of departments, 19;5. Holidays, 201, 7S1, 782, 1224, 1263. per diem employees, 1194, 1198. regulations part of contract, 787. Incompatible offices, 1069. Increase in: not promotion to new office, 208, 341. Indebtedness: withholding pay for, 1072. Insular possessions: period of travel to and from the United States, 782, 1278. Laborers, 204. Leave of absence: additional pay not allowed for serv- ice during, i:i90. employees at navy yards and stations, 781, 1464. executive departments, 1221, 1263. injury in line of duty, 1468. insular possessions, cumulative, 1417. members of Officers' Reserve Corps, 1476. National Guard members, 1412. Sundays and holidays excluded, 1263. Lump-sum employees; restrictions on, 1307, 1389, 1398, 1491, 1492, 1503. Secretary of Navy may fix; report to Congress, . 1418, 1419. Messengers, 204. Naval Academy: professors and instructors, 1457, 1.535. Professors; quarters, heat, and light; commutation, 701. Naval Home; beneficiaries employed at, 1294. Navy yards and stations; rates fixed by Secretary of the Na-^T, 1312, 1313. general provisions relating to, 780-783. wages, how fixed, 1177. Per diem employees, 781-783. hoUdays, 7S7, 1194, 1198. Rates of compensation and number of employees lim- ited by appropriations, 205, 1188, 1384, 1409. penalty for violating law fixing, 1384. Recess appointment ; no salarj' if vacancy existed while Senate in session, 1066. Reduction of, by executive action, 208. Report of, under Increase of the Navy and other general appropriations, 381, 1194, 1272, 1418, 1419. Retired employees, 1536-1543. Salaries of persons employed in departments, 204. Secretary of the Naval Academy, 794, 805. Storekeepers on foreign stations, 847. Suspension of employee, 340, 783. Temporary clerks, 205. sessions of Congress, 208. Thirty-first day of month, 207. Transfer of salaries between bureaus; explanation in estimates, 1290. Two offices; restriction on double salaries, 1066-1071, 1177, 1411. Unauthorized office; no salary for, 1066. Waiver of: not allowed, 414, 825. Watchmen, 204. Withholding: officer in arrears, 1072. Women, compensation of, 202-204. PAY OF NAVAL ESTABLISIOLENT: See Clteckages; Commutation; Grafuities; Heat arid lighl; Length of service; Mileage; Mistake of law; Quarters; Rations; Service. Absence; from duty due to misconduct, 825, 1436. in hands of civil authorities, 588, 589, 871, 9.50. officers; from ship; temporary, 882, 883. PAY OF NAVAL ESTABLISHMENT— Continued. Absence; officers of Marine Corps, 941. officers of Navy, S2.3-S25. without leave; forfeiture of pay during, 869-871, 1297. officer of Navy, 825. Acting assistant surgeons, 527, 529, 530, 802, 1261. chaplains, 802, 1396. ensigns, 799. paymaster, 839. warrant officers, 794, 803. Act of March 3, 1899, 1264-1269. March 3, 1899, not to reduce, 1268, 1273. Act of May 13, 1908, 1301-1304. May 13, 1908, not to reduce, 1303. August 29, 1916, 1437. Act of August 29, 1916, not to reduce, 14.35, 1437. July 11, 1919, not to reduce, 1.529. May 18, 1920, temporary increases, 1534, 1535. Additional compensation — allowed by contractor to naval officer on ocean mail vessel. 1217. enlisted men; continuous service, 883-891, 1269, 1529, 1530. detained in the service, 555, 556. extra duties; restriction on pay of two offices, 106'>-1071, 1411. for medals of honor, etc.; enlisted or enrolled nieni 512, 514, 1275. 1521. for special duty; acting paymaster, 472, 839. aid or executive: captain of the yard, 670. aid to Admiral, 663. aid to rear admiral, 81.VS17, 1.303. assistant to Bureau of Engineering, 1284. Bureau of Medicine and Surgery, 466. Bureau of Navigation, 1222. Bureau of Ordnance, 1261. Bureau of Supplies and Accounts, 127', 1272. a\-iation, 817, 818, 865, 1403, 1404, 1438, 1439. chief of bureau, 1302, 1512. Chief of Naval Operations, 1418. commandant. Mare Island navy yard, 815, 1177. commanding fleets or subdi\-isions thereof, 1481. detailed as supervisor. New York Harbor, 1198,1199. detailed to Republic of Haiti, 1416. enlisted men, Na\-y, 865-S67, 1306. foreign shore duty, 1275, 1302. Marine Corps, 941, 948, 1275. naval officers, Sl>^821, 1275, 1302. warrant officers, 1529. warrant officers. Marine Corps, 1474. Judge Advocate General, 1512. marines detailed as cooks, 1299. Navj' mail clerks and assistants, 1306. officers. Navy, 815-821. sea duty and shore duty beyond seas, 1302. sea duty, officers and enlisted men of Marine Corps, 1408. services performed for Department of Justice, 459. shore duty beyond seas, 818-821, 1275, 1302, 1474, 1529. superintendent of Naval Academy, 1177. for transporting freight, jewels, etc., on naval ves- sel, 985, 9S6. (rom private parties, restricted, 1470. not allowed for detail as superintendent. Naval Observatory, 390. 1656 INDEX. PAT OF NAVAL ESTABLISHMENT— Continued. Additional compensation— Continued. not allowed for detail to Coast Survey, 1151. for detail to duty underWar Department, 507, 579. for detail to Lighthouse Service, 1149. for detail to Nautical Almanac Office, 391. not allowed retired officers detailed to schools or coUeges, 1247, 1248. restrictions on double salaries, 1066-1071, 1177, 1411. Admiral, 791, 707, 1301, 1481. Chief of Naval Operations, 1418. Advancement of officer for heroism; when pay com- mences, 832. Advances; by order of commanding officer, 498. to naval officers, 1472. to persons on distant stations, 838, 1099, 1100. Aids, Marine Corps, 941. Aid or executive; additional pay as aid, 670. Aid to acting rear admiral, 577. to Admiral, 663. to rear admirals, 815-817, 1303. to rear admirals; regulations governing; validity of, 785. AUotments, 825, 826, 1497, 1498. defined, 440, 827, 953, 1496. enlisted men missing in action; continued pay- ment of, 1520, 1521. increase of; power of Secretary of the Navy, 789. insane patients, 789. officers of Navy and Marine Corps, 1249. Appropriations for; contingent and miscellaneous purposes; not available for official compensation, 1105. unexpended balances, 1177, 1178, 1195. Army laws applicable to Navy Nurse Corps, 1303, 1304. Arrested by civil authorities, 588,589,871,9.50. Assignment of, by enlisted men, 573, 892. Assistant chief. Bureau of Engineering, 1284. Bureau of Navigation, 1222. Bureau of Ordnance, 1261. Bureau of SuppUes and Accounts, 1271, 1272. Assistant civil engineers, 803. naval constructors, 793, 802. surgeons and assistant paymasters, 793, 802. Attachment of, by creditors, 573, 574. Aviation duty, 817, 818, 1403, 1404, 1438, 1439. enUsted men, 865. Base pay, defined, 848, 849, 865. Bonded officer; when pay commences, 478-480, 829. Bonus on discharge; sixty dollars, 877, 878. Brazil; officers detailed to, 1399. Captain of the yard; additional pay as aid, 670. Captains, Navy, 791, 798, 1301, 1302. Captured vessel; officers and men attached to, 891. Chaplains, 793, 802, 1301, 1302, 1303, 1396, 1437. acting, 1.396. to receive same pay as other officers, according to rank and service, 1437. Checkages; court-martial sentence required, 1064. officer in arrears, 1072. value of lost property, 788, 1223. Chief machinists, 1314. of Naval Operations, 1418. of bureaus, 839, 1302, 1380, 1512. decisions relating to, 371, 372. retired from active service, 377. subsequently retired, 1303. Citizenship; enUsted men; General Order No. 34; 862, 867, 868. Civil authorities; personnel arrested by, 588, 589, 825, 871, 950. PAY OF NAVAL ESTABLISHMENT-Continucd. Civil employment; retired officers detailed to schools or colleges, 1247, 1248. with contractors; no pay allowed in certain cases, 1250. Civil engineers, 794, 803. CiviUans shipped on naval vessels, 863. Clerks to commanders of squadrons, commandants, paymasters, etc., 794, 795, 806. Coast Survey; additional pay not allowed for detail to, 1151. Commandant of Mare Island Navy Yard, 815, 1177. Commanders, 791, 798, 1301, 1302. Commanding officers of fleets and subdivisions thereof, 14S1. Commencement of; bonded officers, 478-480. commissioned from graduates of Naval Academy, 1221, 1222. enUsted men, 869. increase for sea duty and shore duty beyond seas, 1302. original entry, 829, 830. promotion, 830-838, 1178, 1390. Commissioned officers; Marine Corps; annual pay of grades, 940. Marine Corps; general provisions relating to, 936-951. Navy; annual pay of grades, 1.301. Navy; general provisions relating to, 795-826. Navy; rank and service govern, 1301, 1437. Commissioned warrant officers, 803, 1267, 1314, 1429, 1430. not reduced by act of August 29, 1916; 14.37. not to receive less than warrant officers, 1314. with creditable records and length of service, 1429, 1430. Commodores, 791, 798, 1301. on the retired list, 1307. Computation of; annual or monthly compensation 826, 1297. for actual service rendered, 1091. Construction corps, 505. Constructive service; credited to officers for longevity pay, 821-823, 1268. not credited to officers appointed after March 4, 1913; 1390. Contingent appropriations not to be used for official compensation, 1105. Continuous-ser\ice pay, enlisted men, 883-891, 1269, 1529, 1530. Contractors, pay forfeited for employment with, 1250. Court-martial; officer awaiting trial by, 825. prisoners; enUstment expired, 558, 559. suspension of officers by sentence of, 1033. Coxswains, 866. Date commences on promotion, 830-838. Date of commission not binding on courts; rank ante- dated on promotion, 835. Death; .six months' pay, 1546, 1547. settlement of accounts, 264, 1.305, 1306. Deductions for naval hospital fund, 953, 1159. Dc facto officer; promoted through error, 708, 709. Dental Corps, 806, 1421, 1422, 1473. Deposits, enlisted men; furloughed without pay, 537. Marine Corps, 951, 1295. Navy, 877, 1202. rated as mates or appointed as warrant officers, 524. Deserters; chcckagc of reward against pay; unauthor- ized, 1064. forfeiture of pay, 869-871. fraudulently enlisting, 552. 1657 INDEX. PAY OF NAVAL ESTABLISHMENT- Continued. Discharged ofnccr; not qualified for promotion, 630, 729-734, livj, 1 163. Dismissal illegal; effect of acquiescence, 826. officer restored, 1178. Dominican Republic; detailed to, 1502. Double salaries; restrictions on, 208, 1066-1071, 1177, 1411. Drafted officers of merchant vessels in time of war, 1249. Enlisted men; additional pay not pay of rating, 8S3. assignment of pay, 573, 892. commencement of pay, 869. continuous service pay, 883-891, 1269, 1529, 1530. defined, 886, 890. regular and reserve service credited, 1529, 1530. deductions for naval hospital fund, 953, 1159. detained after expiration of enlistment, 555-562; 873, 874, 883, 903. discharged and residing on receiving ship pending reenlistment, 1201, 1202. discharged three months prior to expiration of enUstment, 1381, 1382. distinguished service cross, 865, 1521. extension of enlistment, 872, 1381. honorable discharge gratuity and continuous- service pay, 883-891 . final settlement of accounts; duties of command- ing officer, 995. forfeiture of pay, 869-871. fraudulent enlistment, 551, 552, 874. furloughed and recalled to active duty, 890. furloughed and reenlisting, 891. furloughed in lieu of discharge by purchase, 1436. furloughed without pay, 871, 872. status of, 537. honorable discharge gratuity, 883-891, 947. hospital corps, 1420. Marine Corps; deposit of savings, 1295. detained in service, 557, 558. sea duty, 1408. transferred to Hospital Corps, 555. medal of honor gratuity, 512, 1275, 1521. Naval Academy band, 848, 891, 1355, 1356, 1530. Navy, 847-878, 1302. act of May 13, 1908, construed, 863. additional pay for special duty, 865-867. certain specified ratings, 1494, 1495. citizenship, 802, 867, 868. compilation of orders fixing pay and allow- ances, 850-803. continuous service pay and honorable dis- charge gratuity, under personnel act, 12G9. deposit of savings, 877, 1202. detained after expiration of enlistment, 555- 5G2, 873, 874, 883, 903. General Order No. 34; 802, 807, 808. general provisions relating to, 847-878. leave of absence, 809. longevity, 862, 867, 868. what service counts, 1550. mileage and transportation on discharge, 874-870. pay of certain ratings fixed, 1423. rates to continue until changed by Congress, 1303. rating advanced or reduced, 868, 869. retired, 872, 873. temporary rates, 1479. ten per cent additional; how computed, 863. transferred to Fleet Naval Reserve, 871. on missing vessels, 268. PAY OF NAVAL ESTABLISHMENT— Continued. Enlisted men; promoted to pharmacist; when pay commences, 830. ratings may be established by Secretary of the Navy, 1552. reenlistment abroad, 555, 556. after service in Fleet Naval Reserve, 1450. reenlistment pay, 883-891. retired, 872, 873, 890, 1269, 1299, 1303, 1405, 1406, 1411,1451, 1514. honorable discharge gratuity and continuous- service pay, 890. sale of wages, etc., to be discouraged, 573. serving as firemen, 878. short term, benefits on discharge and reenlistment, 1552. special duty; leave of absence, 574. summary court-martial may sentence to loss of pay, 1007. Ensigns, 792, 799, 1301. Estimates; form of, 1101, 1102. Examination for promotion; delayed; antedating rank; 832. officer absent from vessel during, 709. officer discharged for failure to qualify, 630, 729-734, 1189, 1403. Extension of enlistment, 872, 8,83-891, 1381. Flag officer; captain assigned to duty with rank of rear admiral, 577. Fleet officers, 474. admiral and vice admiral, 1481. Fleet surgeons, fleet paymasters and fleet engineers, 792, 801. Flying Corps, 1438, 1439. Foreign shore duty; detailed to Brazil, Haiti, Domini- can RepubUc and South American Republics, 1390, 1410, 1502, 1556. Marine Corps, 941, 948, 1275. naval officers, 818-821, 1275, 1302. under personnel act, 1267. warrant officers, 1529. Marine Corps, 1474. Forfeiture of; absence caused by misconduct, 825, 143t3. absence without leave, 588, 589, 871, 950, 1297. adjudged by deck coiu-ts, 1308. adjudged by summary courts-martial, 1007. court-martial sentence required for, 826. deserters; credited to naval hospital fund, 1273. enlisted men; Marine Corps, 950. Navy, 809-871. holding employment with contractors, 1250. retainer pay, Naval Reserve Force, for cause, 1450, 1451. Fraudulent enlistment, 551, 552, 874. Furloughed enlisted men, 537, 871, 872, 1436. Marine Corps, on duty at headquarters, 1474. recalled to active duty, 890. reenlisting, 891. Furlough pay; officers of the active list, 583, 82G. officers serving on ocean mail vessels, 1217. retired officers, 617, 910, 915-916. not applicable to Marine Corps, 622, 968. General Order No. 34; enlisted men, 862, 867, 8C8. General provisions relating to Marine Corps, 936-953. relating to Navy, 791-916. Good-conduct medals, pins and bars, 866, 807. Gratuities; honorable discharge, 883-891. honorable discharge; Marine Corps, 947. medal of honor men, 512, 514, 1275, 1521. Gun captains and gun pointers, 866. Gunnery sergeants, 950, 1383. 1658 INDEX. PAY OF NAVAL ESTABLISHIVIEIVT— Continued. Highest pay, defined, 882. shore-duty pay; assistant to Bureau of Medicine and Surgery, 466. Honorable-discharge gratuity, 883-891, 947. Hospital corps, 847. Incompatible offices, 1069. Indebtedness, enlisted men; travel allowance on dis- charge not withheld for, 876. erdistedmen; under previous enlistment, 245. officers; pay withheld for, 1072. Insane patients, naval service, 788, 7S9. Instilar force, 863, 864. Insular force; detention after enlistment expires, 558. Interned officers, in neutral country, 892. Judge Advocate General, 371, 1186, 1512. after retirement, 377. Leave of absence; enlisted men, 869. officers. Marine Corps, 941. officers. Navy, 823-S25. special duty, 574. warrant officers, 1430. Lieutenant commanders, 792, 798, 1301, 1302. Lieutenants, junior grade, 792, 799, 1301. Navy, 792, 799, 1301. Lighthouse Service; additional compensation not allowed for detail to, 1149. Longevity; enUsted men. Marine Corps, 942, 946. enUsted men. Navy, S62, 867, 868, 1550. officers, Marine Corps, 940, 941, 949. Marine Corps; what service credited, 927, 928, 1529, 1535. Navy, 821-823, 1301, 1302. constructive service credited, 1268. constructive service not credited, 1390. what service credited, 1529, 1535, 1550. service as commandant's clerk, 534. retired officers, 908, 909. Machinists, 1269. Mare Island Navj' Yard; commandant, 1177. Marme band, 951, 952, 1463, 1464. Marine Corps; absence of enlisted men; arrested by civU authorities, 950. absence of officers from duty, 825, 941, 1436. aids, 941. Army act of May 11, 1908; 940, 941. Army laws applicable to, 940-943. brevet pay, 932. clerical duty, enlisted men, 1474. cooks, additional for enlisted men detailed as, 1299. deductions for naval hospital fimd, 953, 1159. deposit of savings, 951, 1295. enlistment allowance, 942. extra duty pay, 942, 946. restrictions on, 1315. foreign shore service, 941, 948, 1275. forfeiture, enlisted men, 950. general provisions relating to, 936-954. gunnery sergeants, 950, 13S3. laws relating specifically to, 936-940. longe\^ty, officers, 940, 941, 949. marksmen, etc., enlisted men, 942. mounted pay, 940. overpaid, by mistake of law; 951. pay grades, enUsted men, 945. pay of two offices not allowed, 950, 951. rates of pay, enlisted men, 942, 945. rates of pay, officers, 940, 941. reenUstment pay; honorable discharge gratuity, 883-891, 947. retired officers, 965. senior staff officers, 1460. PAT OF NAVAL ESTABLISH>IENT-Continued. Marine Corps; specialist ratings, enlisted men, 942, 946. special quaUflcations, details, etc., enlisted men, 947, 94S. temporary increases, 941, 942. Marine gimncrs, 1462. Mates, 521, 522, 792, 800, 864. retired; honorable discharge gratuity and con- tinuous service pay, 890, 891. Medal-of-honor gratuity, 512, 514, 1275, 1521. Medical attendance not pay, but an allowance, 440. Medical Corps; officer detailed as assistant to Bureau, 466. Medical directors and inspectors, 792, 801. Mess attendants and cooks, 864. sergeants, 942. Midshipmen, 792, 799, 1302. leave of absence, 764. students from Philippine Islands allowed same pay as, 1424. suspended without pay, 755. Monthly computation of, 826, 1297. Nautical Almanac; officer in charge of, 391. Naval Academy Band, 848, 891, 1355, 1356, 1530. Naval constructors, 793, 802. Naval hospital fund, deductions for, 953, 1159. Naval Reseri-e Force, active duty, 808, 809, 1447. active duty credited to regular officers and en- listed men, 1529, 1530. active duty in time of peace; retainer pay not allowed, 1510. active duty; longevity, how computed, 1511. court-martial deductions, 814. court-martial; member awaiting trial by, 814. deduction for hospital fund, 814. enlisted men transferred to Fleet Naval Reserve, 871. general provisions relating to, 808-815, 1442-1455. holding other offices, 812, 1446. honorable discharge gratuity and continuous ser\-ice pay, 889, 890. medals of honor, etc., additional pay, 1521. retainer pay, 809-812. after confirmation, 1509. appropriation chargeable, 1455. before confirmation, 1445. conditions of payment, 1445. enrolled men. Fleet Naval Reserve, 1449. Fleet Naval Reserve, increased on reenroll- ment, 1450. forfeited for cause. Fleet Naval Reserve, 1450, 1451. Fleet Naval Reserve; minimum service not performed, 1449. increased for heroism and good -conduct meda's, 1450. increased on reenrollment, 1445, 1446. Naval AuxiUarj- Reserve, 1453. Naval Reserve Flying Corps, 1454. not allowed in time of peace when on duty, 1510. not reduced by appointment as officer, 1444, 1451. transferred members of Fleet Naval Reserve, 1450. when paid, 1446. while on active duty, 1445, 1510. withheld for cause, 1450, 1451, 1546, 1552. retired, 814, 815. travel allowance, 813, 814. unauthorized absence, 814. 54641°— 22- -105 1659 INDEX. PAT OF NAVAL ESTABLISHMENT-Continued. Naval Reserve Force, uniform gratuity, 812, 813. when not actively employed, 1H7. Navy cross, enlisted man, additional pay, 865. Navy mailclerksandassistants, 86.5,1306. Nurse Corps, female, 807, 1303, 1304. Ocean mail vessels; officers on, allowed furlough pay, 1217. Officers, Navy; Army pay extended to, 1267. general provisions relating to, 795-826. rates of, 791-S26. same pay according to rank and length of service, 1301, 1437. Old Navy pay retained for officers where higher than new rates, 1273. One year's pay on discharge; oflScer failing to pass examination, 630, 729-734, 11S9, 1463. Overpayment; mistake of law; right of Government to recover, 951. Original entry, defined; officer accepting another position in Navy, 830. Passed assistant surgeons and passed assistant pay- masters, 793, 802. Pay and allowances, defined, 948, 953. commutation not pay, 953. Pay clerks, acting pay clerks and chief pay clerks, 1406, 1407. . Marine Corps, 950, 1515. Marine Corps; longevity pay; reserve service, 1529, 1530. Pay defined, 440, 827, 828, 886, 887, 1496. Pay directors and inspectors, 792, 801. Paymasters, 792, 801. clerks, 1302. Pay of rating, defined; additional pay not included, 883. Pay proper defined; commutation of quarters not, 702. Personnel act not to reduce pay which commissioned officers would otherwise receive, 1268, 1273. Petty officers' certificates, 866. Pharmacists and chief pharmacists, 1420. Prisoners; during confinement and on discharge, 1310, 1311. officers held by civil or military authorities, 825. of war, 891. Professors of mathematics, 794, 803. Promotion; commencement of pay on, 830-838, 1178, 1390. date of rank; officer advanced for heroism, 734-736. of warrant officers not to reduce their pay, 1314. Quartermaster clerks, 1462. Rank; dental officers may receive pay of higher, 1421. of commissioned officers, Navj', basis of pay, 1301, 1437. Ratings advanced or reduced; enlisted men, Navy, 868, 869. Rear admirals, 791, 797. first and second nine, 1301. officers acting as, with rank of flag officer, 577. two grades for pay purposes, 447, 064, 665. upper and lower half, line and staff, 1429. Recess appointment; no salary if vacancy existed while Senate in session, 1066. Reduction not to result from acts changing, 1268, 1273, 1303, 1435, 1529. of, without statutory authority, 826, 844, 845. Reserve nurses on active duty, 1303, 1304. Resignation of officer; date efTective, 826. Retainer pay, Naval Reserve Force, 809-812. Retired- chiefs of bureaus and Judge Advocate General, 377, 673, 1303. PAY OF NAVAL EST.ABLISHMENT— Continued. Retired — Continued . enlisted men, 872, 873, 1269, 1299. active duty, 1405, 1406, 1451. promotion, 1514. Navy, based on pay of active list, 1303. restrictions on double salaries not applicable to, 1411. members. Naval Reserve Force; physical disa- bility, 1549. members, Naval Reserve Force, 20 years' service, 1446. .30 years' service, 1451. officers, 906, 963. active duty, 913-915, 1380, 1381, 1437. ill time of war or emergency, 1512, 1513. warrant and commissioned warrant officers, 1503, 1504. age ineligibility for promotion, 1434. based on pay of active list, 1303. Chief of Naval Operations, 1418. chiefs of bureaus subsequently retired, 1303. Civil War service, 1266, 1293, 1312. commencement of retired pay, 912. commodores, 1307. Congress may reduce rank and pay of, 910, 911. dental corps, 1422. detailed to educational institutions, 439, 440, 1247, 1248. disability not incident of the service; furlough pay, 617, 915, 916. general legislation, whether applicable to, 633, 634, 832, 908. general provisions relating to, 906-916, %3-970. holding position as Member of Congress, 643. Marine Corps, 963-970. not increased after retirement, 1189. not increased or reduced by personnel act, 1268. not recommended for promotion, 597, 911. one year's pay when wholly retired, 617,621. pay is salary, 911. pay is not a pension, 635. President's action illegal, 622. promoted on retired list, 912, 913. promotion pending when retired; subse- quently confirmed, 832. restriction on double salaries not applicable to, 1411. sea duty increase not included in computation, 1307. sea pay allowed in certain cases, 1380. thirty years' service; based on highest pay of grade, 1303. transferred from furlough to retired pay list, 916. voluntarily retired to create vacancies, 1265, 1380. Revised Statutes relating to; general provisions, 791. Sea duty; definition of; decisions relating to, 878-883. increase allowed retired officers in certain cases, 1265, 1380. not included in computing, retired officers. Navy, 1307. when begins and ends, 881, 882. leave of absence, midshipman, 764. Marine Corps, 948, 1408. naval officers, 878-883, 1302. absent; undergoing examination for promotion, 709. Seamen gunners' certificates, 866. Sea pay allowed for shore duty, 882. 1660 J^DEX. PAY OF NAVAL ESTABLISHMENT— Continued. Sea pay allowed for shore duty — comiaandant, Mare Island navy yard, 1177. estimates to show in detail, 1312. officer detailed as supervisor. New York Harbor, 1198, 1199. superintendent. Naval Academy, 1177. warrant officers; foreign shore duty, 1529. Secretaries to admirals, vice admirals and commanders of squadrons, 455, 794, 805. Secretary of the Naval Academy, 794, 805. Ship's tailors and sliip's helpers, 866. Shore duty; assistant to Bureau of Medicine and Sur- gery, 466. beyond seas, Marine Corps, 941, 948, 1275, 1474. beyond seas, naval officers, 818-821, 1275, 1302, 1529. beyond seas, under personnel act, 1267. officer in charge of Nautical Almanac, 391. sea pay aUowed for, 882, 1177, 1198, 1199, 1312, 1529. superintendent of Naval Observatory, 390. under personnel act, 1267. South American Republics; officers detailed to, 1399, 1556. Special act reappointing officer, 830. Special act restoring officer to former rank, 733. Stoppage of, requires court-martial sentence, 1064. Storekeepers on foreign stations, 846, 847. Submarine duty, 865, 866. Summary court-martial may sentence to loss of pay, 1007. Superintendent of Naval Academy, 815, 1177. of Naval Observatory, 390. Supervisor of New York Harbor; sea pay allowed to, 1198. Suspension of midshipman without pay; not entitled to allowances, 828. of officer by court-martial sentence, 1033. Surgeons, 792, 801. Temporary increases; act of May 18, 1920; 1534-1535. Termination of, 826. Two offices; entitled to compensation which is larger, 389, 472. not entitled to pay of both, 839. restriction on double salaries, 1066-1071, 1177, 1411. Unauthorized office; no salary for, 1066. Vacancy defined; commencement of pay on promo- tion, 832. Vessel sunk or destroyed; payment of arrears due en- listed men, 264. Vice admirals, 791, 797, 1481. Volunteers, 829. Waiting orders, officers of Navy, 700, 824, 825. Waiver of pay or allowances, 208, 414, 561, 825, 844, 845, 877. Warrant officers, 794, 803, 1267, 1302, 1472. commissioned, 803, 1267, 1314, 1429, 1430. foreign shore duty, 1529. • leave of absence, 1430. machinists, 1269. Marine Corps, 1462. foreign shore duty, 1474. Navy and Marine Corps; longevity pay; reserve service, 1529, 1530. on promotion not to suffer reduction, 1314. pharmacists, 1420. shore duty, 1472. Withholding; officer in arrears, 1072. Wrecked vessels; officers and men separated from, 891. "PAY OF THE NAVY:" See A ppropriations; Pay of Natal Establishment. Appropriation available for cost of medals, crosses and barSj etc., 1522. "PAY OF THE NAVY"— Continued. Appropriation available for death gratuity, 1.547. for payment of claims for damaged property, 1493. Defined as permanent appropriation, 1386. Estimates of appropriations for, 1312. Naval Academy band; compensation payable from, 1355. Retainer pay, Naval Reserve Force, chargeable to, 1455. Unexpended balances, 1177, 1178, 1195. Use of appropriation, 515. restricted to its legitimate purpose, 1183. PAY PROPER: Definition of, 702, 828. PEACE: Desertion, etc., in time of; punishment, Navy, 985. Dismissal of naval officers in time of, 441, 1010-1014. Time of, construed, 1010, 1011. purchase of discharge by enlisted men during, 1222. PEARL HARBOR: Rules governing navigation, anchorage, etc., 1382. PENAL: See Crimes. Code, 1316-1355. Laws, defined, 8. interpretation of, 23. Statutes, act requiring discharge of officer for moral unfitness; held not, 628. PENALTY: Bidders for contracts delinquent, charged with difler- encein cost, 1112, 1113. Contractor dehnquent; liquidated damages, 1111,1113, or sureties defaulting; subsequent bids by, re- jected, 1114. Contracts; officer omitting to file return in returns office, 1119. PENALTY ENVELOPES: Authority to use; endorsements on; registered mail, 1185,1186. Correspondence with foreign countries, 329. Fraudulent use of, 1345. Loan of frank forbidden, 1291. Official business, free of postage, 1181. Self-addressed, inclosed in letters to Congress requiring answers, 1191. Universal postal convention regarding, 329. Use of, 1291. PENITENTIARIES : See Prisons. Atlanta; products used by naval forces, 1519, 1520. Naval courts-martial may sentence to imprisonment, in, 983, 984. officers imprisoned in; dropped from roUs, 1503. Prisoners in not to be hired out, 1198. PENNANTS: Naval Raserve Force; not to be flown in lieu of national ensign, 1448. use of by members commanding merchant vessels, 1448. PENSIONS: Allowance in addition to, 1155. Duties of Commissioner of Pensions, 396. General provisions relating to, 1153-1157. Insane persons in Saint Elizabeths; payment of, 789. Jurisdiction of Commissioner; retirement of civil em- ployees, 1538. of Commissioner and Secretary of the Navy, 1155. Laws not applicable to persons in service October 6, 1917, or thereafter, 1500. Medal-of-honor roll. Navy Department; special pen- sion, 1410, 1411. 1661 INDEX. PENSIONS— Continued. Naval Home inmates; disposition of, lau, 1595. Naval hospitals allowed, for inmates, 1160, 1161, 1261. Not allowed persons in naval sor\ice, active or retired, 1217, 1218. Power of Congress to allow, 47. Retired pay held not to be, 0:55. Secretary of the Interior, supervision of, 395. Service; enlisted men of specified service entitled to, IIM, 1155. War risk compensation not allowed in addition to, 1499. substituted for, 1500. PENSION FUND: Navy, 1103, 1146, 1153-1156, 1261, 1395, 1472, 1503. PER DIEM: See Civil establishment; Pay of civil establishment; Wit- nesses. Persons attending courts-martial and courts of inquiry; estimates and appropriations for, Na\'y, 1103. PERIODICALS: Authority of law necessary for printing of by Govern- ment, 1525. Payment for subscriptions in advance, 1401, 1408. Restriction.s on purchase of, 1073, 1261. PERJURY: Claims against United States, 990. Fal.se returns of contracts; evidence in prosecution, 428 Naval courts-martial; how punished, 1021. courts-martial; prosecutions for, 431.- Punishment, 1335. State jurisdiction when committed in Federal court, 53. Subornation of; punishment, 1335. Testimony before congressional committees, 421. PERMANENT: Appropriations, defined, 1386. Navy Department, 1106, 1107. Change of station; transportation furnished, 1535, 1536. Definition of; incapacity for duty, 598. Station; defined, 1536. PERSON: Defined, 185, 1355. PERSONAL EFFECTS: S,f:e Effects. PERSONNEL ACT: March 3, 1899; 1263-1271. PETITIONS: Civil employees to Congress or members thereof, 1388. PETROLEUM RESERVES: See Naval petroleum reserves. PETTY OFFICERS: See Enlisted men. Additional pay, enlisted men holding petty oflacer's certificates, 866. Definition of, 525. Entitled to obedience, 525. Mates held to be, 518. " Noncommissioned officers" includes, 441. Punishments inflicted upon by commanding oflBcer, 1002. Summary courts-martial may punish, 1006. PHARMACISTS: See Pay of Naval Establishment; Warrant officers. Number and appointment of, etc., 1262, 1419, 1420. Removable in the discretion of the Secretary of the Navy, 1262. PHILIPPINE INSURRECTION: Whether constituted a state of war, 272. PHILIPPINE ISLANDS: Citizenship in, 113, 1506. Civil employees, 782. pay while in transit, 1278. PHILIPPINE ISLANDS-Continued. Civil office in; military officer may discharge special duties without holding, 1075. Jurisdiction of courts over naval vessels, 67. Marine brigade; status and discipline of, 955. Naturalization of natives, 1500. Nautical school ; loan of naval vessel and enlisted men, etc., to, 1297, 1298. Shore duty in; additional pay allowed, 1275. Students for instruction at Naval Academy, 743, 1424. United States held not to include, 1015. PHOTOGRAPHS: Restrictions on, in departmental publications, 1284. PHYSICAL: Examinations for promotion. Navy, 707-710. PHYSICAL INCAPACITY: Definition of, 598. PICKLES: Purchase of for Navy, 1115. PICTURES: Prize fights; films, etc., 1371, 1372. PILOTAGE: Estimates and appropriations for, Na\'y, 1103. State discrimination against national vessels forbidden, 1130. PILOT CHARTS: Preparation and publication of, 388. PILOTS: Licenses as, not required of officers of public vessels, 1135, 1136. Rules for the government of, 1135. State laws requiring, 50. PINKERTON DETECTIVE AGENCY: Arrest of deserters, 118. Employment of, forbidden, 1220. PIRACY: Power of Congress to define and punish, 38. Punishment, etc., 1351-1353. Use of naval vessels to suppress, 1130, 1131. PLANS: Confidential; filing of in Returns Office, 397. Public works and buildings; to accompany estimates submitted to Congress, 1102. Relating to national defense; losing, stealing, etc., 1483. PLATES: Engraved; Wilkes's Expedition, 380. PLEA IN BAR: See Courts-martial; Jeopardy. PLEDGE: Receiving public property as, from unauthorized per- son; punishment. Navy, 990. PLUCKING BOARD: Creation of board for retirement of ofiicers, 1266. Repeal of law providing for involuntary retirement, 1403. PLUNDERING: Inhabitants on shore, punishment. Navy, 985. PLURAL: Includes singular in Federal statutes, 185, 1355. POISONS: Mailing of; punishment, 1342, 1343. POLICE DUTIES: Extra; summary court-martial may adjudge, 1007. POLITICAL: Considerations; employment of laborers at navy yards, 780. Contributions; constitutionaUty of statutes prohibit- ing, 340. oflenses connected with soliciting, giving, etc., 1334, 1335. prohibited, 783. 1662 INDEX. POLITIC Air— Continued . Contributions; prohibited; executive oflBcers and em- ployees, IISO, llSl. Questions; jurisdiction of courts, 104. POLL, TAXES: Persons in Navy, 48. PORTO RICO: Census taken of, 1525. Citizenship in, 113, 1506. Civil employees; pay while in transit, 1278. offices in; holding of by naval oflBcer, 1075. Midshipmen appointed from, 742, 1281. Naturalization of inhabitants, 1506. Status of; held to be a territory, 1075. is within the United States, 438. PORTS: See Foreign port. Collector of; inspection of naval vessels, 260. Home port of naval vessel; change of, 1536. Naval vessels laid up in ordinary in, 774. United States; port in Guam, 112. POSSESSIONS: See Insular 'possessions; Military government; Territo- ries. POSTAGE: See Penalty envelopes. Collecting excessive, 1339, 1340. Estimates and appropriations for, Navy, 1103. Failure to account for amount due, 1340. Fraudulently using penalty envelopes to avoid, 1345. Penalty envelopes; authority to use; indorsements on; registered mail, 1185, 11S6. official business, without postage, llSl, 1291. Stamps; unlawfully pledging or selling, 1340. POSTAL FUNDS: See Crimes; Public moneys. POSTAL SERVICE: Arrangements with foreign countries, 329. Laws and regulationsof , govern Na\'y mail clerks and assistants, 1306. Oath of office, 328. Offenses against, 1337-1345. POST3IASTER GENERAL: Bonds of Navy mail clerks and assistants to be in amounts fixed by, 1387, 1388. Duties of, 329. Envelopes for departments procured by, including printing, 1239, 1240, 1291. Navy mail clerks designated by, 1306. Ocean mail vessels not to be employed by, unless approved by Secretary of the Navy, 1216, 1217. Report to, of inspection made by naval officer of ocean mail vessel, 1216, 1217. POSTMASTERS: Recruits enlisted by, 1419. POST-MORTEM EXAMINATIONS: Authority of naval medical officers to perform autop- sies, 460, 461. POST OFFICE DEPARTMENT: General provisions relating to 327-329. Ocean mail vessels constructed, subject to approval of Secretary of the Navy, 1216. POWDER: See Explosives. Inspection of, by States, 49. Purchase of gunpowder without advertising, 1113. POWER OF ATTORNEY: Assignment of claims against the United States, 1093. Assignment of wages by enlisted men, 573, 892. Forgery of, 1322, 1323. PRECEDENCE: Advancement in numbers; effect on, 652, 691, 1429. Aid or executive of commanding officer, 669. Army and Marine Corps, 930, 931. and Navy, 602, 667. Navy and Marine Corps, 931. Assistant civil engineers, 1474. surgeons, 1426. Brigadier generals and rear admirals of lower half, 665- 667, 1501. Chief of Naval Operations, 1418. Chiefs of bureaus, 367-371. Coast and Geodetic Survey, members serving with ■ Navy, 1480. Coast Guard and Navy officers, 705, 1456. Coast Guard officers appointed to permanent Navy, 1550. Commanding officers and subordinates having earlier date of commission, 576. of vessels and naval stations, 669. Commissions numbered when issued on same date, 669. Conflict in statutes relating to, 690, 691. Constructive service credited for, 691, 694, 1390. Courts-martial, members of, 704, 1016. Date of commission governs; all officers entering Na\T after March 4, 1913; 1390. Army and Navy officers of corresponding grade, 667. Coast Guard and Navy, 1456. dental officers, 1421. line officers, 668. Marine Corps and Navy, 667. Naval Reserve Force, 1511. staff officers, 1429. Date stated in commission determines, 652. Dental officers, Na\-y, 1421. Effect of, on promotion, 693, 694. General provisions relating to, 662-706. Graduates of Naval Academy, 687, 765. Importance of questions involving, 689. Length of service, computation of, 691. line and staff officers, 689-695. officers having same date of commission, 668. Line and staff officers, in processions, courts-martial, and boards, etc., 704. length of service, 689-695. Line officers, 668. detailed to engineering duty, 1435. Loss of numbers; effect of, 691, 1429. Marine Corps and Navy, 667. Marine officers, reinstated or given probationary ap- pointments, 1461, 1462. Medical officers, 1426. not disturbed by act of August 29, 1916; 1480, 1481. Midshipmen appointed after graduation, 687, 765. Naval Resers-e Force officers appointed to permanent Navy, 1550. and regular Navy, 1511. Promotion by selection, effect on, 652, 669, 694, 1433. Rear admirals and brigadier generals, 665-667, 1501. Regulations governing; right to change, 466. validity of, 785. Retired officers, 704. commanding squadrons in time of war, 660. Rule for determining; graduates of Naval Academy, 689. Secretary of the Navy has authority to determine, 667, 668. Selected officers, how determined, 652, 669, 694, 1433. Staff officers; advancement in rank according to, 1426. 1663 INDEX. PRECEDENCE— Continued. Staff officers; date of commission, 1390, 1429. length of service, CS9-695. not entitled to additional nuarters by virtue of, 695. transferred from temporary and reserve service, 1.550. who have gained or lost numbers, 691, 1429. Staff and line officers, 689-695, 704. Suspension, officers under, 668, 669. Temporary commission, 669. Temporary officers appointed to permanent Navy, 1550. Two commissions in same rank, 669. Warrant officers, 1269. PRECEPTS: General courts-martial, 1015, 1018. PREFERENCE: See Civil establishment; Discharge; Soldiers and sailors. PREMIUMS: See Bonds. Bonds, rate chargeable, etc., 21 1 . Recruiting expenses ; estimates and appropriations for, 1103. Sale of bills of exchange: credited to pay, miscella- neous, 1222. PRESENCE: See Absence. Accused; decisions relating to, 126-128, 1030. Candidate before promotion board, 723, 728. PRESENTS: Contributions for, t o superiors, 1073. Foreign; acceptance of, by officers, 75. Governments to tender to officers through State Department, 1187. Superior officials not to accept, 1073. PRESENT TENSE: Includes future, in construing criminal code, 1355. PRESERVED 3IEATS: Purchase of, for Navy, 1115. PRESIDENT: &ee Appointments; Commission; Courts-martial; Dele- gation of powers; Recess appointments. Acting assistant surgeons appointed by, 1261. Acts through heads of departments, 191. through officers of the Navy, 191, 500, 501. through Secretary of the Navy, 342, 343, 344, 474, 500, 586, 642, 643, 787, 956, 957. Appeals to, 79. in military cases, 83. Appointments and promotions; constitutionality of statutes relating to, 647, 648. Congress can not require him to make, 767. without consent of Senate; accounting officers notified, 1072. Attorney General's opinion required by, 83, 282. Bonds of disbursing officers may be increased by, 1098. Can not encroach upon powers of Congress, 58. Can not reopen acts of prior administration, 734. Chiefs of Ijureaus do not act for, 500. Classification of naval vessels established by, 1277. Coal prices fixed by, for Army and Navy, Alaskan mines, 1307. Commander in chief, 81-83, 773. Commander in chief; authority to designate command of joint forces, 443, 444. command of naval vessels and squadrons assigned by, 772, 773, 1277. Congress can not interfere with, 58, 59, 81, 578. Congress may restrict powers of, 954. officering and manning of naval vessels, 775. PRESIDENT-Continued. Commissions of officers delivered after adjournment of Senate: previously confirmed, 1072. Confirmation of death sentence, 1036. of sentence dismissing commissioned or warrant officer, 1036. Congress can not interfere with powers of, 58, 59, 81, 578. Constitutionality of statutes relating to retirement, 617. Courts-martial may be convened by, 83, 1015, 1310. power to mitigate sentences of, 85, 1053, 1054. Courts without power over, 77. Dismissal of midshipmen; written approval required, 12S6. of officers, 97, 441, 1010-1014. with consent of Senate, 1011. Examinations for appointment in Marine Corps pre- scribed by, 1270. Examining boards; action on, 724-728, 1189, 1481. revocation of action on, 596, 6.30, 728, 734. Execution of laws; duty to see to, 101. Executive power vested in, 77. General courts-martial may be convened by, 83, 1015, 1310. Limitations of punishment in time of peace to be fixed for Navy, 1032-1084. Loan of naval equipment to miUtary schools, 1277. Medals and decorations may be conferred on foreign military forces, 1517. Medals; duplicates may be issued by, 1282. Medals of honor, Na^-y crosses, etc., awarded by, 1521-1523. Midshipman from Porto Kico appointed by, 1281. Mitigation of court-martialsentences,85, 1053, 1054. Naval officers act for, 191,500, 501. Opinions required from heads of departments, 83, 282. Pardoning power, ^3. Power over subordinates, 82, 101, 102. Promotion of officers; seniority law not obligatory on, 93. Recess appointments; accounting officers notified of, 1072. Regattas or marine parades; officials designated to enforce regulations, 1301. Regulations: approved by. Navy, 784. cannot usurp powers of Congress, 784. deck courts; issued by, 1309. governing supplies to be made by, 787, 788. to be prescribed by; purchase of discharge from Navy, 1222. Reports to, concerning business of departments; whether in arrears, etc., 1221. Retirement of marine officer; action illegal , 621, 822, 968, 969. of officers; Secretary of the Navy acts for, 642, 843. Retiring boards; action on proceedings, 616. action on proceedings; illegal; 621, 622, 968, 969. may direct Secretary of the Navy to refer cases to, 598. Revision of examining board's proceedings, 724-728. Revocation of action on findings of examining board, 596,630,728,734. Sale of naval vessels; by direction of, 777. written direction required if less than appraised value, 1192. Secretary of the Navy acts for, 342, 343, 344, 474, 500, 586, 642, 643, 7S7, 956, 957, 1481, 1482. executes orders of, 342. Selection for promotion ; action on report of board, 1433. Signing of commissions by, before seal affixed, 1248. Temporary appointments; accounting officers notified, 1072. 1664 INDEX. rHESIDENT— Continued. Temporary appointments; power to make, 473. Threats against; punishment, 1469. War powers, 38, 39, 58. PRESUMPTIONS: , Knowledge of the law, 477. Line of duty, 611. Official duties properly performed, 352. PREVIOUS ADMINISTRATION: See Heads of departments; lies judicata. PRINCE: Acceptance of presents from, 75. PRINCIPALS: Definition of, criminal code, 1354. PRINTERS: Enlisted men advanced to printer, first class, and chief printer, 1423. PRINTING AND BINDING: Act of January 12, 1895; 1230-1240. Accounts of Public Printer with departments; report concerning, 1231, 1232. Accumulated documents in departments; disposal of, 1234. Allotments of Congress and departments jointly charged with cost, 1285. of departments; chargeable with blanks, flUng de- vices, etc., 1278. portion to be reserved for special purpose, 1285. American Ephemeris and Nautical Almanac, number ofcopies, 1234, 1278. sale of, 1234, 1235. AppUcation of private parties for printing additional copies, 1232. Apportionment of departmental allotments, 1285. Appropriations must be specific, 1296. not to be exceeded, 1238. Authority of law required for, 1237, 1239. for departmental publications, 1284. for printing periodicals, 1525. Bills and resolutions; distribution of to departments, 1238. Binding; style of, 1232, 1237. Blank books; work to be done at Government Printing Office, 1525. Blanks; PubUc Printer to furnish to departments, 1278. Blue Book; Official Register of the United States, 1235, 1236. Books and maps transferred by departments to Li- brary of Congress, or public library, D. C, 1280. Books; departmental; restrictions on printing, 1284. for duplicating processes; Public Printer tofiu-nish to departments, 1278. Bureaus, Navy Department; printing must be done at Government Printing Office, 378. Catalogue of Government pubUcations, 1234. Compliments of officer not to accompany distribution of documents, 1236. Congressional Directory; printing and distribution of, 1235. Congressional Record; distribution of, 1235. to be examined by departments and documents ordered therefrom, 1238. Copyright of Government publications forbidden, 1232. of maps, charts, etc.; purchase of by Hydrographic Office, 1236, 1237. Cost of, divided between department and Congress in certain cases, 1285. Defijiition of executive and judicial departments, 192. Delays in printing, 1230. copy and illustrations to be furnished within one year, 1237. Joint Committee on Printing to prevent, 1525. PRINTING AND BINDING— Continued. Delays in printing; time for furnisliing copy to Public Printer; annual reports, 1416, 1417. I>epartmcntal edition printed concurrently with usual number, 1300. Departmental publications; distribution by Public Printer, 1384, 1385. furnished designated depositories, etc., 1233. furnished Library of Congress, 1273, 1274. furnished Superintendent of Documents, 1234. illustrations restricted, 12S4. number of copies limited, 1238. restrictions on printing, 1284. Designated depositories; departmental publication distributed to, 1233. furnished with publications, 1300. libraries of departments, Naval Academy, etc., 1240. Detail of employees from Government Printing Office, 1359, 1360. Disposal of accumulated documents in departments, 1234. Distribution; "compliments" of officers omitted, 1236. departmental pubUcations by Public Printer, 1384, 1385. funished Library of Congress, 1273, 1274. documents; accumulated in departments, 1234. furnished departmental libraries, Naval Academy, etc., 1238, 1240. reports, bills and resolutions, 1238. printed matter, to designated depositories, etc., 1233, 1300. publications; measures to prevent duplication, waste, etc., 1525. printed for or received by departments, 1239. Documents; acciunulated in departments; disposal of, 1234. and books; exchange of, 1239. catalogue of, 1234. comprehensive index and consoUdated index of, to be published, 1234. departmental; number Umited, 1238. restrictions on printing, 1284. either House may order printing of, 1230. numbering of, 1300. ownership of Government pubUcations, 1236. restrictions on illustrations, 1284. Duplication; measures to prevent, 1525. Editions; number of, Hydrograpiiic Office pubUca- tions, 1238. two or more permitted of departmental publica- tions, 1285, 1286. Eleetrotyping, matter needed a second time, 1232. Envelopes for departments to be procured by Post- master General, 1239, 1240, 1291. excepted from general provisions concerning, 1296. restrictions on printing contained on, 1291. Ephemeris and Nautical Almanac, extra copies to be printed, 1234. number of copies, 1278. sale of, 1234, 1235. Estimates; amount of aUotment to be reserved by department, 1285. Hydrographic Office, to be separate and detailed, 1197. Navy Department, 1102. of cost; furnished departments by PubUc Printer, 1239. to accompany documents before oidered printed by Congress, 1230. submission to Congres.s, 1101, 1232, 1296. to Congress by PubUc Printer, 1248. 1665 INDEX. PRIXTIXG AND BINDING— Continued. Exchange of documents and books, 1231). Executive departments; distribution of publications by, 1239, 1384, 1385. libraries to receive publications, 1240. submitting reports and documents to Congress; estimates must accompany, 1230. work to be done at Government Printing Office, 192, 1101, 1237, 1525. Executive and judicial departments, construed, 192. Extra copies of certain publications to be printed, 1234-1230, 1238, 1272. Filing de^•ices; Public Printer to furnish to depart- ments, 1278. Foreign hydrographic surveys, HOC, 1237. Forms; Public Printer to furnish blanks, etc., to de- partments, 1278. and style of printing and binding, 1232, 1237, 1238. General provisions relating to, 12:50-1240. Government Printing Office; detail of employees from, 1359, 1360. duties of Public Printer, 1231. to do all printing, binding, blank-book work; ex- cept, 192, 1101, 1237, 1525. Heads of departments; approval required for reprint- ing, 12S1, 1282. certificate as to necessity for illustrations, 1284. certificate as to necessity of matter embodied in annual reports, 1239. Hydrographic Office; separate estimates and appro- priations for, 1197. publications; number of copies fixed by Secretary of the Navy, 1238. preparation and sale of, 1230, 1237. proceeds from sale of, 1237, 1543. sold at cost, 390. Hydrograpie surveys; foreign, 1100, 1237. Illustrations; restrictions on, 1239, 12S4. and maps must be furnished before printing of documents, 1237. Index of documents to be published, 1234. Joint congressional committee on, 1230. Journals; authority of law necessary for, 1525. Libraries of departments. Naval Academy, etc., desig- nated depositories, 1240. Library of Congress; departmental publication?:, etc. furnished to, 1273, 1274. Magazines; authority of law necessary for, 1525. Manifold blanks; Public Printer to furnish to depart- ments, 1278. Nautical Almanac; number of copies, 1234, 1278. sale of, 1234, 1235. Naval InteUigence publications; extra copies author- ized, 1272. Naval Observatory; meteorological and magnetic ob- servations, etc.; number printed, 1235. Navy Register, nvunber of extra copies to be printed, 1235. Neglect and delays in, 1230. measures to remedy, 1525. time for furnishing copy to printer, 1237. Numbering of Congressional documents, 1300. Number of copies; American Ephemeris and Nautical Almanac, 1234, 1278. departmental reports, publications or documents, 1238. Hydrographic Office publications, 1238. Naval InteUigence publication';, 1272. Navy Register, 1235. two or more editions jjcrmitted, 12S5, 1286. Number of documents, reports, etc., which may be ordered by deparlanents interested, 1238. PRINTING AND BINDING— Continued. Observations of the Naval Observatorj-; number of copies to be printed, 1235. Official Register of the United States; printing and distribution of, 12.35, 12.30. Ownership of fiovemment publications, 1236. Periodicals; authority of law necessary for printing, 1525. Public Printer; duties of, 1231. to decide as to forms and style, 1232. to distribute departmental publications, 13S4, 1385. to furnish blanks, blank books, filing devices, etc., 1278. Register of the Navy; number of copies, 1235. of the United States, printing and distribution of, 1235. Reports, bureau chiefs; heads of departments to direct whether shall be printed, 1238. distribution of; compliments of officer omitted, 1236. to departments, 1238. departmental; allotments chargeable with cost, 1285. general provisions relating to, 383-385. number of copies, 1238. of publications issued by departments, 1556. received and distributed by departments, 1239. of work done by Public Printer for departments, 1231. restrictions on illustrations, 1284. time for furnishing copy to Public Printer, 227, 1416, 1417. to Congress from departments; estimates ac- companying, as to cost, 1230. type and form, 1238. unnecessary matter excluded from, before print- ing; illustrations, 12:39. Reprinting of documents for sale, 1281, 1282. Requisitions; all copy to be fiunished within one year, 1237. by heads of departments; report to Congress con- cerning, 1231. by private parties for additional printing of docu- ments, 1232. certificate of necessity contained in, 1239. departmental; restrictions on printing to he done under, 1284. for blanks, blank books, filing devices, etc., 1278. for documents, reports, etc., to be submitted from examination of Congressional Record, 1238. for, made by heads of departments, 1239. for, signed by chief of the department, 1238. number of copies which may be ordered on, by departments, 123S. on Postmaster General for envelopes, 1239, 1240. reprinting publications for sale; head of depart- ment must approve, 1281, 1282. Resolutions and bills; distribution to departments, 1238. Sale of documents; acciunulated in departments, 1234. by Superintendent of Documents, 1233, 1284. approval of department required, 1281, 12>i2. disposal of proceeds, 1282. to private parties, 1232. Sale of duplicate stereotype or electrotype plates to private parties, 1232. of Ephemeris and Nautical Almanac, 1234, 1235, 1278. of Hydrographic Office publications, 390, 1236, 12.37, 1343. Session laws ; distribution of, 1235. 1666 INDEX. PRINTING AND BINDING-Continued. Secretary of the Navy may prescribe number of copies; Hydrographic publications, 1238. Stationery printed in course of manufacture excepted from general provisions, 1296. Statutes; printing and distribution of, 1235. StereotiTDing, matter needed a second time, 1232. Style and forms; printing and binding, 1232, 1237, 1238. Superintendent of Documents; departmental publica- tions furnished to, 1234. distribution of departmental publications by, 1233. duties of, 1233, 1234. orders for reprinting subject to approval of depart- ments, 1281, 1282. sale of documents by, 1233, 1234, to distribute publications to departmental libra- ries, etc., 1240. Time for furnishing copy of annual reports to Pubhc Printer, 1416, 1417. and illustrations to Public Printer, 1237. Titles of documents and reports, 1300. Transfer of printing equipment to Public Printer, lo31. Type, size of, determined by Public Printer, 1232. style of, for annual reports, 1238. Usual number; documents ordered printed liy Con- gress, 1232. estimates to accompany reports to Congress as to cost of printing, 1230. exceeded for certain publications, 1234-1236, 1238, 1272, 1278. exceeded when ordered by either House, 12;?2. not to be printed of American Ephemeris and Nautical Almanac, 1278. printed concurrently with departmental edition, 1300. Waste in; measures to prevent, 1525. PRINTS: Restrictions on pinrchase of, 1073. PRISONERS: See Accused; Hard labor; Punishments. Allowances to; clothing and gratuity on discharge, 1310, 1311. Amenable to trial during imprisonment, 558, 976. Bringing into court as witnesses, 403. Commutation of rations, 898. Death in line of duty, 613, 614. Dental treatment, 903. Discharged; not troops of United States, 1180. transportation and clothing furnished, 1313. Discharge of officer serving sentence of civil court, 1010, 1012, 1503. Escape; pimishment of naval master-at-arms permit- ting, 985. miUtary guard charged with manslaughter in at- tempting to prevent, 403. Habeas corpus proceedings for release of, 401. Hiring out labor of, forbidden, 1198. Jurisdiction to punish, 558, 976. Manual for government of naval prisoners; force of regulations, 786. May be confined in civil prisons and penitentiaries, 983, 984. Merchant seamen; confinement on naval vessel, 576. Not in the custody of the Secretary of the Navy, 404. Pay after enlistment expires, 558. of naval persoimel in hands of civil or military authorities, 588, 589, 825, 871, 950. Presence of at trial, 127. Punishment of master-at-arms refusing to receive or suffering to escape, 985. PRISONERS— Continued. Subject to discipline of institutions in which confined, 983, 984. Time in confinement not a period of service, 589. Transportation to penitentiary, 984. Treated as convicts, 983, 984. United States; medical treatment, 459. Witness fees in case^ of, 414. PRISONERS OF WAR: Insane; admission to St. Klizabeths Hospital, 1417, 1418. Pay of officers and men attached to captured vessel, 891 . PRISONS: See Pcnitcntiarks. Midshipmen not to be confined in, for liazing, 1287. Naval courts-martial may sentence offenders to civil institutions, 983, 984. PRIVATE DETECTIVES: See Detectives. » PRIVATE PROPERTY: Damaged by naval personnel; claims; settlement of, 1358, 1359, 1504, 1508, 1527, 1545. Deceased inmates. Naval Home; disposition of eficcts, 1395. Deceased personnel. Navy; disposition of effects, 786, 1503. Effects of deceased persons on naval vessels; disposi- tion of, 995. of enUsted men lost on vessels; reimbursement; permanent appropriation for, 1106. of naval personnel lost in service; reimbursement, 1492-1494. Embezzlement of, by public officer, i;331. Importing in naval vessel, 989. Injuring in any way; punishment. Navy, 98.5. Lost in naval service; decisions relating to, 269-274. jurisdiction of accounting officers and Secretary of the Nax-y, 272. Lost on sunk or captured vessels, 269. Reimbursement for loss or damage, naval service, 1492-1494. Seizure by military commander, 40. Transportation; household effects, naval personnel, 1535, 1536. on naval vessel, 985. PRIVATE REPRIMAND: See Reprimand. Commanding officer may inflict as punislmaent, 1002. PRIVATES: First class. Marine Corps; number of; rank established, 1478. PRIVILEGED CO>IMUNIC.\TIONS: Official corraspondence in departments, 356, 357. Report by chief of bureau to head of department, 350. PRIZE: .\ssignment of prize money by enlisted men, 573. Capture and condemnation of piratical vessels, li:M. Distribution among captors; law authorizing, repealed, 1268. Cieneral provisions relating to, 1137-1147. Interference with disposition of, etc., 1325. List of persons claiming share of, in Navy, 994. Maltreating persons on; pimishment, Navy, 994. Money accruing to United States credited to Navy pension fund, 1153. Permanent appropriation for payment to captors, 1 10(j. Property taken on inland waters, 1170. Removing property from; punishment, Navy, 994. PRIZEFIGHTS: Films and pictures; offenses relating to, 1371, 1372. 1667 INDEX. PROBATION: Kmployei's in civil establishment, 340. PKOBATIOXAKY: Appointments; acting ensigns for engineering duty, 1435. Marine Corps, 1461, 14(J2. PROCEDURE: Errors of; courts-martial; review by ci^^l courts, 401- 402. due process of law requirement, 125. PROCESS: Civil authorities: service on persons in naval or civil service, 292, 293. Courts-martial may issue, for witnesses, 1310. Right of accused to have, for obtaining witnesses, 129, 132, 133. PROCESSIONS: Precedence of line and staff oflBcers, 704. PROFANITY: Pimishable by naval court-martial, 984. PROFESSIONAL: Examination for promotion, 711-721. PROFESSORS: Civilian; Naval Academy; number and compensation of, 14.57, 1535. Civilian; Naval Academy; quarters, heat and light, 701. Line officer detailed to Naval Academy; relative rank with Army officers, 667. PROFESSORS OF IVIATHEMATICS: Advancement in rank, 682, 683. Appointment of, 503, 504. discontinued, 1428. Designation a misnomer, 771. Duties, 391, 504, 505, 771. General provisions relating to, 503-505. Number, 503. Pay, 794, 803. Rank, 680, 682, 683. Supervision of Nautical Almanac Office, 391. PROFITS: See Ship's stores. Midshipmen's store; public money, 232. Ships' stores, 1359. not public money, 232. PROHIBITION: Intoxicating liquor, near military camps, and to per- sons in uniform, etc., 1477, 1478. Writ, of not issued to courts-martial, 977. PROJECTILES: Restrictions on purchase of, 1395, 1396. PROMOTION: See Advancement; Appointment; Examinations; Exam- ining boards. Acceptance; effect of, 654. presumed, 97. Acting ensigns to lieutenant (junior grade), 1436. Additional number officers, 1275, 1276. by selection, 1430, 1432. Marine Corps, 1459. war service or extraordinary heroism, 1289. Advancement in rank without change of grade, 682. of enlisted man held not to be, 513. of naval officers for extraordinary heroism, 453, 454,734-736,921,933. Age requirements, line officers, 1434. Antedating rank on, 649-651, 734, 931, 1459. Appointment distinguished; definitions, 93, 513, 522, 653, 6.54, 830, 930. Assistant surgeons to passed assistant surgeon, 1251. Aviation officers, 1439. 1'ROMOTION— Continued. Chaplains in Navy, 1396, 1397. Civil establishment, 1383. jurisdiction of accounting officers, 242. Commencement of pay on; naval officers, 830-838, 1178, 1390. Commissioned warrant officers to ensign, 1314. Commission; erroneous, 103, 685, 708, 709. withheld, 652. Conduct in battle; exceeding number in grade, 736, 921. Confirmation; Senate's consent indirectly given, 652. Constitutionality of statutes requiring examinations, 709. Courts can not review proceedings, 620, 621 . Court-martial of officer pending, 652. Date of, 464, 465. rank, 649-6.51, 734, 931, 1390, 1459. officer promoted after suspension, 731-733. Death of officer before accepting, 97, 652. Definition of; appointment distinguished, 93, 513,. 522, 653, 654, 830, 930. officer passing from lower to upper half of rear admirals, 736. Delayed; new physical examination not required, 709 Dental officers, 1421. service credited for, 1473. • Disqualification; seniority law not obligatory on President, 93. Ensigns, junior grade, 1190, 1191. to lieutenant (junior grade), 1264. length of service requirement suspended, 1551. Errors in commission; 685. officer not qualified, 708, 709. Fleet officers during war; admiral and vice admiral, 1481. Increase in pay held not to be, 341. held to be, 736. Law changed; effect on existing vacancies, 648. Length of service; when service commences, 464, 465. Lieutenants (jimior grade) to lieutenant, 1425. examinations required, 1190. length of service requirement suspended, 1551. Machinists to chief machinist, 1314. Marine Corps, 924-927. Army laws extended to, 1219. common list, 1461. date of rank, 1459. for conduct in battle or extraordinary heroism, 921, 933. permanent staff officers, 1460. to grade of brigadier general, 1459. Medical Corps, 464. Moral unfitness for, 597, 623, 630. discharge; pay, 630, 1189. what constitutes, 624-627. Naval Reserve Force, 1510. Navy; general provisions relating to, 707-737. Oath of office, 654. Passed assistant surgeons to surgeon, 1251. Pay clerks. Navy, 1406, 1407. Pay; commencement of, in higher grade, 830-838, 1178, 1390. of officer undergoing examination for, 709. Pharmacists to chief pharmacist, 1420. Physical unfitness; Marine Corps, 640, 641, 965. Navy, 640, 641,1366, 1433. Precedence; effect on right to, 693, 694. Professional unfitness; Marine Corps, 1463. Navy, 729-734, 1433, 1550, 1.551. Rear admirals; selection of, 1430, 1513. in time of peace, 721 . 1668 INDEX. PROMOTION— Continued . Rear admirals; in time of war, 454. Recess appointment not confirmed; status of officer, 651. Retired oflRcers; in time of war or emergency, 1512, 1513. prohibited, 1189. staff corps; length of service, 685. withdrawn from line of, 654, 655. Retirement of officers, Navy, not recommended for, 594, 91 1 . of officers pending promotion, 592, 651, 832. Sea-service requirement; line of the Navy, 1434. Selection; line officers, 1430-1434, 1551. line and staff; time for convening boards, 1529. Naval Reserve Force above lieutenant com- mander, 1510. precedence of officers, 652, 669, 694, 14.33. professional and physical examinations required, 1433. records of officers examined by selection board, 722, 723. staff officers, 1513. Senate's consent indirectly given, 735. Seniority, Army, 93. constitutionality of legislation requiring, 647-648, 681. Marine Corps, 1461. Navy, 646, 680. staff corps, 680, 681 . Staff officers; above lieutenant commander, 1513. below lieutenant commander, 1426. examinations not required, except for advance mentinrank, 1481, 1482. Status of officer pending, 651, 652. Supply Corps, 471. effect on bonds , 496. Temporary; general law not applicable to, 721. selection law not applicable to, 1432. termination of, under act of July 1, 1918; 1515. Thanks of Congress; officer receiving, 736. Vacancies necessary prior to, 453. Vacancy caused by promotion of additional number officer not filled, 1275, 1276. Vested right to, 648. Warrant officers, 510. to commissioned warrantofflcer,1266, 1267, 1282. to ensign, 1277, 1280-1282. Wounds in line of duty, not bar to, 709. PROPERTY: SeePrivate property; Public property. Enemy, confiscation of, 40. Officeisnot, 124. PROPERTY ACCOUNTS: See Accounting officers; Accounts. Auditing of, 1223. Bureau of Supplies and Accounts to keep, 1203. Jurisdiction of accounting officers, 234. Loss of public property; charging value to responsible officer, 788, 1223. Returns to be examined by Paymaster General of Navy; certificate to accounting officers, 1223. Storekeeper at Naval Academy to make returns, 1304. PROPOSALS: See Contracts. PROSECUTOR: General courts-martial, 1020. PROVISIONAL: Rank, grade or rating. Naval Reserve Force, 1444. PROVISIONS: See Contracts; Stores; Subsistence; Supplies. Foreign stations; estimates and appropriations for transportation. Navy, 1103. Naval vessels; inspection and preservation of, 995. PROVISIONS-Continued. Navy; advertising for proposals for, 1111. Transportation for Navy, American vessels, 1283. Wasting or permitting waste; punislmient. Navy, 985. PROVISIONS AND CLOTHING: Name of bureau changed to Supplies and Accounts, 1218. PROVOKING WORDS: Punislmient for using in Navy, 984. PUBLIC ACCOUNTS: See A ccounti7ig officers; Accounts; Claims. PUBLICATIONS: SoePrinting and binding. PUBLIC BUILDING COMMISSION: Control of office space in District of Colimibia, 1524, 1525. PUBLIC BUILDINGS: See Buildings. PUBLIC BUSINESS: Meaning of; mileage law, 843, 844. Wording of orders not conclusive as to character of travel, 845. PUBLIC HEALTH SERVICE: Commissioned officers eligible for membership on naval courts-martial, 1494. Duties in time of war, 1279. Jurisdiction of Treasury Department, 1283. Personnel credited with service in other organizations for longevity pay, 1533. Sale of naval supplies to personnel of, 1533. Service credited for longevity pay in Navy, Marine Corps, etc., 1535. Subject to Navy laws in time of war, 1491. Surgeon General of Navy to detail officer for advisory board, 1279. Transfer of lands, buildings, furniture, etc., to, 1526, 1559. PUBLIC LANDS: See Lands; Military reservations; Naval petroleum re- serves; Naval reservations; Oil lands; Reservations. General provisions relating to, 1083-1089. Military or other reservations, 1087. Naval petroleum reserves, use of proceeds; fund created, 1399. Naval reservation, timber lands, 1087-1089. Preservation of historic monuments, etc., on, 1288. Secretary of the Interior, supervision by, 395. Timber cut from; clearance of vessels laden with, 1125. PUBLIC 3IONEYS: See Accounting officers; Accounts; Appropriations; Crimes; Disbursing officers. Accounts; distinct, according to appropriations, 1097. examination by administrative bureau, 1097. form of, 1097. Navy disbursing officers, render direct to account- ing officers, 1097. premium on sale of public securities, 1100. time allowed for rendering, 1097. to be kept of receipts and expenditures, 1098. Advances by order of commanding officer, 498. mileage books, commutation tickets, etc., paid for in advance of travel, 1282. partial payments to contractors, 1369. pay of naval establishment; persons on distant stations, 838, 1099, 1100. pay of naval officers, 1472. restricted, 1099, 1100. subscriptions to newspapers and periodicals, 1401, 1408, 1409. witness fees and mileage, naval courts, 1022, 1310. Attachment by creditors, 573, 574. Checks lost or stolen; duplicates, 1098, 1099. 1669 INDEX. PUBLIC MONEYS— Continued. Converting, 990, 1098, 1329. Custodians; duties of, 109S. Definition of, 232, 492, 493. Deposit of; by disbursing officers, 1096. contrary to law, KWS, 1329. postal employees, 1344. failure of disbursing officers to make as required, 1330. without deduction, 1095, 1096. Disbursements; additional pay for making, 1067. currency in which to be made, 1100. Disbursing officers, failing safely to keep, etc., 1329, 1330. Drafts to be promptly presented by disbursing officers for payment, 1100. Duplicate checks issued for lost or stolen, 1098, 1099. Duties of officers to keep safelj', 1098. Embezzlement of, 1328. by naval personnel, 990, 1170. by postal employees, 1344. by public officers, 1331. money furnished for naval service, 990, 1325. Exchanging for other funds, by custodians, etc., con- trary to law, 1330. by postal employees, 1344. prohibited, 1098, 1100. Failing safely to keep; punishment, 1329, 1330. False accounts and returns, naval personnel, 1170. accounts, records or reports; punishment, 1368. receipts; punishment for giving or receiving, 990. General pro^^sions relating to, 1095-1100. Larceny of, 1328. of checks; duplicates issued, 1098, 1099. of money furnished for naval service 990, 1325. Loan of, by officers of Supply Corps, 497. by postal employees, 1344. contrary to law, 1329. prohibited, 1098. Loss or deficiency of; Secretary of the Navy may re- lieve officers from responsibility for, 1527, 1528. Lost or stolen checks; duplicates, 1098, 1099. Mess funds; commutation of rations, 902. Misappropriation of; furnished for naval service, 990, 132.5. Miscellaneous receipts, 1095. purchase of discharge by enlisted men, 1222. sale of maps, charts, etc., Hydrographic Office, 1.543. sales of garbage from general mess, 899. sales of naval vessels, 1192. sale of old naval material, 1190. Payments of to be made when directed, 1098. Pay, miscellaneous, credited with interest, premiums and exchange, 1222. Receipts from post laundries, Marine Corps; account- ing for, 1531. Regulations of Treasury to be observed, 1098. Requisitions for, on Treasury, 1104, 1225, 1220. Safe-keeping of; failure of officers, 1329, 1330. required, 1098. Special disbursing agents, 1095. Stolen checks; duplicates, 1098, 1099. Time allowed for depositing, 1096. Transfer of, contrary to law, 1329. to be made when directed, 1098. Use of, contrary to law prohibited, 1098. Warrants for drawing appropriations from Treasury, 1104. Withdrawing, contrary to law, 1329. Withholding; penalty for, 1096. suits to recover, 1097, 1098. PUBLIC OFFICERS: See Civil establishment; Officers; Officers of the Marine Corps; Officers of the Navy. Acting as attorney before courts-martial, departments, etc., 1333. Bribery of, 1325, 1326, 1334. Claims against United States; not to be interested in, 1332. Compensation to, from private parties, restricted, 1470. Deceased; buildings not to be draped in mourning for, 1220. ex-officials; closing departments for, prohibited, 1220. Deficiencies prohibited; removal from office for viola- tion, 1104, 1105. Double salaries, restrictions on, 208, 1066-1071, 1177, 1411. Employment of personal services in excess of appro- priations restricted, 1104. General provisions relating to, 1065-1073. Impersonation of, 1323. Influencing legislation, 1527. Membership in societies or associations, 1371. PUBLIC PRINTER: SeePrinting and binding. PUBLIC PROPERTY: See Accounts; Appropriations; Buildings; ContracUs; Lands; Printing and binding; Vessels of the Navy. Accounts; audited by Paymaster General; certificate to accounting officers, 1223. naval supply account to govern purchase and issue of stores, etc., 1366, 1367. to be kept by Bureau of Supplies and Accounts, 1203. Advertising sale of, 1190. condemned naval supplies and material, 1204. naval vessels, 1192. Appraisal of before sale, Navy, 1190, 1192. .\ppropriations transferred for payment of, between bureaus and departments, 1409, 1536. Auction sale of old naval material, 1190, 1204. Books; exchange of, 1239. departmental, transferred to libraries, 1280. of reference, law books, etc., restrictions on pur- chase of, 1261. restrictions on purchase of, 1073. Supreme Court reports and digests furnished public officers, 1365. Building contracts not to exceed appropriations, 1116. Cannon balls; loan or gift of to societies and municipali- ties, 1249. Clothing and small stores fund. Navy, 1204. Clothing; condemned; sale of , in Navy; proceeds, 1095. sale, etc., prohibited, 1121. Commandeering coal in Alaska for Army and Navy, 1307. factories, vessels, etc., during war, 1475, 1476. merchant vessels for use as transports or cruisers, 1218. ocean mail vessels for use as transports or cruisers, 1217. suppUes in time of war, 1413, vessels for naval purposes, 1467. Condemnation of land for buildings, etc., 1199. of land for military purposes, 1490, 1491. proceedings to acquire timber, material, supphee, etc., for Navy, 1518. Courts of States; jurisdiction over Government prop- erty, 773, 774. Custody of, 193, 194. Delivering less amount than receipt calls for, 990. to contractors in part pajmaent, 778. 1670 INDEX. PUBLIC PROPERTY— Continued. Destruction of, during war, 1504, 1505. failure to use best efforts to prevent; punishment, 9S4. naval vessel or equipment, 779, 980. pimishment, 980. summary court-martial records, 1009, 1311. useless papers, 1202, 1203, 1248, 1301, 1381. valueless, 779. Disposition of; records to be kept concerning, 227, 228. regulations governing, 787, 788. Embezzlement of, 1328. by naval personnel, 990, 1170. by public officer, 1331. property furnished for naval service, 990, 1325. Estimates and appropriations for, Navy, 1102, 1103. Exchange of documents and books, 1239. of motor vehicles in part payment for new ones, 1419. of naval material prohibited if useful for repair of vessels, etc., 1190. of naval vessels prohibited, 778, 779. of oil and gas products from naval petroleum re- serves, etc., 1545. of sewing machines, band instruments, etc., 1474. of typewriters, adding machines, etc.; to be re- ported to Congress, 1409, 1410. of typewriters as part pasTnent for new ones, re- stricted, 1543, 1554. False accoimts and returns, 1170, 1368. Flags captured from enemy, 381, 790. Flags issued free of cost; used for draping coffins, 1397. Gifts of condemned ordnance, etc., to societies and municipaUties, 1249. of flags used for draping coffins of officers or enUsted men, 1397. to naval vessels; acceptance and care of, 1305. Government's right to acquire possession of its prop- erty from State authorities, 773. Guns, Navy; loan or gift of, to societies and municipali- ties, 1249. Improvements on leased lands, to become property of lessor, 1508. Inventions, 1165. Inventories required to be kept of, 227. Lands; condemnation, 1199, 1490, 1491, 1518. condemnation; title to and jurisdictioii over, 284, 2S.5. licenses granted for use by private parties, 291. not to be purchased without a specific appropria- tion, 1116. not to be purchased without a specific law author- izing, 1117. purchase of; appropriation available, 294. for naval hospitals, 1159, 1160. for United States; releases obtained by Presi- dent, 1121. rented by United States; erection of buildings, 285, 1508. supervision of Secretary of the Interior, 395. title to and jurisdiction over, 282. transfer of, authority of executive, 295. between Army and Navy, 1528. to jurisdiction of Navy Department, 1457. to PubUc Health Service, 1526, 1559. Larceny of, 1328, 1335, 1336. arms, money, stores, etc., furnished for naval service, 990, 1325. personal property of United States, 1328. Leases granted by Navy to lands, 1419. of naval petroleum reserves, etc., 1532, 1533, 1545. PUBLIC PROPERTY— Continued. Loan of condemned ordnance, etc., to societies and municipalities, 1249. of naval equipment, etc., to Red Cross, 1394, 1395. to miUtary schools, 1277, 1359. of naval vessels for quarantine service, 1186. and equipment to nautical schools, 1367, 1368. to nautical school in PhiUppines, 1297. of scientific instruments, 1201. of, statutory authority required, 779. of, to Navy Department by authority of Congress, 380. Loss of, charged to responsible officer, 788, 1223. Medical stores; procurement of, 466, 1116, 1288. Misappropriation of arms, stores, money, etc., fur- nished for naval service, 990, 1325. of, by naval personnel, 990, 1170. Naval hospitals; purchase of and sites for, 1159, 1160. material, old, may be used in construction and repair of vessels, etc., 1190. sale of, 777-779, 1190, 1204. sale or exchange forbidden if useful for repair of vessels, etc., 1190. suppUes; accounts of; reports to Congress; trans- fer between bureaus, etc., 1203. piu'chase and issue of, 1216. purchase, preservation and disposition of; regulations governing, 787, 788. Naval supply account; is to govern purchase and issue of stores, etc., 1.366, 1367. sales from; prices; how credited, etc., 1557. value of, to be credited to naval supply account fund, 1557. Navy Department, custody of, 352. general provisions relating to, 352-357. Newspapers; restrictions on purchase of, 1073. Ordnance, Navy; loan or gift of, to societies and munic- ipalities, 1249. Ownership of, 194. of Government publications, 1236. of vessels in hands of builders, 773. Patents, 1165. Periodicals; restrictions on purchase of, 1073. Pledge; receiving as, from unauthorized person; punishment. Navy, 990. Possession of, is in United States, 194. Preserv'ation of. Navy; regulations governing, 787, 788. President's direction in writing necessary for sale of naval vessel, 1192. Proceeds of sales, 232, 390, 1095, 1108, 1190, 1202, 1203. Purchase by one bureau or department for another; appropriations transferred, 1409, 1536. from unauthorized person; punishment. Navy, 990. of hospitals and sites for Navy, 1159, 1 160. of property in excess of needs for current year, 387, 1113. of clothing from naval personnel, contrary to law, 1324, 1325. of newspapers, periodicals, books, etc.; restrictions on, 1073, 1261. Receiving from unauthorized person, 990. Records, destruction of, summary court-martial, 1009, 1311. disposal of useless papers, 1202, 1203, 1248, 1301, 1381. Regulations governing loan or gift of ordnance, etc., 1249. governing purchase, preservation and disposition of naval suppUes, 787, 788. sales of old naval material, 1190. 1671 INDEX. PUBLIC PROPERTY— Continued. Repairs; estimates and appropriations for, Na^'y, 1103. of buildings; contract not to exceed appropriation for, 1116. of typewriting macliines by General Supply Com- mittee, 1557. old naval material to be used for, 1190. . Report to Congress as to sales of war .supplies, lands, buildings, etc., 1516. by Bureau of Supplies and Accounts, annually, 1203. concerning exchange of typewriters, adding ma- chines, etc., 1409, 1410. of property on hand at navy yards, 381. of proceeds of sales, and expenditures therefrom, 1296. of sale of old naval material, 1190. of sales, to be contained in book of estimates, 1103, 1104. Reserve material, Navy; issue and purchase of addi- tional stoclis, 1473, 14S2. Restrictions on use of, to influence legislation, 1527. Returns to be rendered by storekeeper at Naval Academy, 1304. Robbbery of personal property, of United States, 1328. Sales; advertising required. Navy, 1190, 1192, 1204. armament, for sentimental reasons, 12S4. arms, stores, etc., furnished for naval service; punishment for unauthorized, 990, 1325. Army motor vehicles to other departments and branches, 1531, 1532. Army, Navy and Marine Corps subsistence sup- pUes, 1465. Army ordnance stores to other departments; price charged; payment, 1388. Army ordnance to naval officers, 1312. between Army and Navy, without comjjensation; stores, real estate, etc., 1528. between bureaus of Navy Department, 1203. between departments and bureaus; transfer of appropriations, 1409, 1536. between departments and Government establish- ments, 1526. bills of exchange; premium credited to Pay, Miscellaneous, 1222. charts at cost, 1182, 1184. computing machines to departments at exchange prices by General Supply Committee, 1557. condemned naval clothing, 1095. naval clothing; proceeds available for expen- diture, 1108. naval suppUes, stores, and materials, 1204. docks, etc., under Shipping Board, prohibited without specific authority, 1555. Ephemeris and Nautical Almanac, 1234, 1235, 1278. from naval suppl}' account credited to naval supply account fund, 1557. prices fixed by Paymaster General, 1557. from ships' stores; profits, 1359. fuel to officers, 943, 951. garbage from general mess, 899. gasoline fuel and oil to vessels of Volunteer Patrol Squadrons, 1455. guns and ammunition, 1516. Hydrographic Office publications, 390, 1236, 1237, 1543. Marine Corps stores to naval and civilian i)ersonnel, 1391, 14G4. Naval Home, property; proceeds credited to naval pension fund, 1472. Naval material and condemned supplies, 777-779, 1095, 1108, 1190, 1204. PUBLIC PROPERTY— Continued. Sales— Continued. Naval material prohibited, if useful for repair of vessels, etc., 1190. stores to naval personnel, 533, 829, 1313, 1314. supplies; proceeds, 1095. supplies to Coast Guard personnel, 1533. supplies to Public Health Ser\-iee x)ersonnel, 1533. vessels, 777-779, 1457. vessels and material; annual report, 381. vessels; procedure, 1192. vessels; proceeds covered into Treasury, 1192. Navy and Marine Corps subsistence stores, etc., to discharged persons, 1554. oil and gas products, naval petroleum reserves and royalty oil, 1545. old material, etc., reported to Congress, 1360. oldnavalmaterialatpubUcauction,etc., 1190, 1204. proceeds, disposition of, 390. proceeds of; garbage, 232. proceeds of miscellaneous receipts, 1095. proceeds of, paid into Treasurv; naval material, 1190. proceeds of, revert to original appropriation, 1108. record to be kept of, 227. regulations governing, 1190. report concerning proceeds of, 1296. report to Congress by Secretary of the Navy, 1190, in Book of Estimates, 1103, 1104. securities; premium to be accounted for, 1100. ships' stores, profits; not public money, 232, 233. smooth-bore cannon for experimental purposes, 1193. stores, etc., to naval personnel and employees, 533, 829, 1313, 1314. timber lands, logs, etc.; reuse of proceeds, 1518. typewriters, restricted, 1.543, 1554. to departments at exchange prices by General Supply Committee, 15.57. imiforms, accouterments and equipment to Ma- rine officers, 1531. accouterments and equipment to naval offi- cers and midshipmen, 1521. at cost to citizens in Marine Corps training camps, 1464. prohibited, 1121. unlawful: punishment for. Navy, 990. useless papers at na\'y yards and stations, 1401. in executive departments, 1202, 1203. in buildings under control of departments, 1248. on naval vessels, 1381. vessels captured as prize, 1141, 1142. war suppUes, buildings, lands, etc., 1516. Small stores fund used for purchase of small stores in Navy, 1184. Stealing, embezzling, misappropriating, unlawfully selling, etc., 990, 1325. Taxation by States, 48. Tests of naval cannon, 1195. Timber; clearance of vessels laden with, 1125. lands, 1087-1089. Trading in; punishment for disbursing officers and others, 1332. to contractor as part payment of money due, 778. Transfer of, 355, 356. ammunition, etc., by War Department to other departments, 1527. approval of Congress required, 194. Army motor vehicles to other departments, 1531. Army ordnance stores to other departments; price charged, etc., 1388. 1672 INDEX. PUBLIC PROPERTY— Continued. Transfer of, between navy yards requires legislative authority, 779. books and maps to Library of Congress or District of Columbia public library, 1280. docks, etc., from Shipping Board to Navy De- partment, 1555. lands, buildings, furniture, etc., to PubUc Health Service, 1526. lands and buildings to Public Health Service, 1559. lands; authority of executive, 295. lands to jurisdiction of Navy Department, 1457. naval ordnance to War Department; payment for, 1515. naval records from other departments to Navy Department, 12S3, 1295, 1389. naval vessels to Shipping Board, permanently or temporarily, 1467. printing equipment to PubUc Printer, 1531. supplies, real estate, etc., between Army and Na%'y, 1528. without charge between bureaus of Navy Depart- ment, 1203. Uniforms, sale of prohibited, 1121. Useless papers; sale of, 1202, 1203, 1248, 1381, 1401. Vessels, Navy, ownership; in hands of builders, 773. Wasting or permitting same; punishment, Navy, 985. PUBLIC QUARTERS: Definition of, 698. PUBLIC TRIAL: Naval court-martial, 1030. Right of accused, 129, 130. PUBLIC VESSELS: See Vessels; Vessels of the Navy. Regulations as to licenses, etc., not applicable to, 1135. PUBLIC WORKS: Contracts not to overobligate appropriations, 1116. Estimates; form of, 1102. Improvements on leased lands to become property oflessor, 1508. Plans to accompany estimates submitted to Congress, 1102. Protection of laborers and material men, 1227, 1228. PUNISHMENTS: See Arrest; Articles for the Government of the Navy; Commanding officers; Courts-martial; Jeopardy; Rep- rimand; Sentence; Suspension. Bad-conduct discharge excludes benefit of war-risk compensation, 1500. Capital, excludes benefits of war-risk compensation, 1500. Coast Guard personnel, operating as part of Navy, 1455. Commanding officer — acting, may infUct, 1005. may iniUct upon officers and crew of vessel, 1002. of hospital or hospital ship may Inflict, 1441. punishments Inflicted by, do not bar trial, 119. Confinement may be adjudged by deck courts, 1308. Continuing; remission of, by reviewing authority, courts-martial, 1052, 1053. Court-martial sentence required for, except as other- wise specified, 1002. Cruel and unusual, 1063. decisions relating to, 134. due process of law, 125. Death, prohibited in the Navy unless specifically authorized, 1034. Deck courts, what may be imposed by, 1308, 1309. Desertion in time of war; forfeiture of citizenship rights, 1078. PUNISHMENTS-Continucd . Discharge of officer for moral imfitnoss for promotion, is not, 630. Discretionary with courts-martial, 979, 981, 983, 984, 990, 991, 994, 996. Dishonoral)lo discharge excludes benefit of war-risk compensation, 1.500. Dismissal; excludes benefit of war-risk compensation, 1500. mandatory in certain cases, 994, 1029, 1031, 1064, 1287. Fines; courts-martial authorized to adjudge, 990. imprisonment until payment of, 1063, 1064. naval hospital fimd credited with, 11.59. Forfeiture of pay ; deck courts may adjudge, 1308. summary courts-martial may adjudge, 1007. General courts-martial may inflict same as summary courts-martial, 1010. Health of accused endangered by; different pimish- ment to be substituted, 1009. Imprisonment; beyond term of enlistment, 1064. courts-martial authorized to adjudge, 9&3, 984, 990. of midshipmen for brutal or cruel hazing, 12S7. place of, designated by reviewing authority, court- martial cases, 1064. imtil payment of fine, 1063, 1064. Infamous, defined, 118, 134. Infliction of, on naval vessels, restricted, 1002. Irons, use of, abolished, exceptions, 1309. Limitation of; Coast Guard, 1455. time of peace; naval courts-martial, 1062-1064. Officers authorized to inflict without court-martial, 1441. On naval vessels, power of militia officers, 71. Prohibited in the Navy; flogging, branding, etc., 1034. Repeated offenses, 1003, 1004. Reprimand without court-martial is not, 351. Ship's log; to be entered in, 1002. Statute of Hmitations applicable to court-martial trials or other pimishments, 1057-1000. Summary courts-martial, 1006, 1007, 1309. PURCHASE: See Contracts. Discharge from Navy or Marine Corps, 1222, 1436. Furlough in lieu of discharge by, 1436. QUARANTINE: Expenses, naval vessels; estimates and appropriations for, 1103. Loan of naval vessel for, US6. Measures adopted to protect naval forces against dis- ease, 1517. State laws, 50. QUARRELS: Punishment for, 984. Punishment for fomenting, 984. QUARTERMASTER, MARINE CORPS: Counted as colonel in making computations, 1460. Issue of clothing, etc., in lieu of lost or damaged, 1493. Pay and allowances, 1460. Rank of, 929, 1460. QUARTERMASTER'S CLERKS: Appointment as warrant officers in Marine Corps, 1462. QUARTERMASTER'S DEPARTMENT, ARMY: Supplies and transportation furnished by, to naval and marine detachments, 433. QUARTERS: See Commutation; Heat and light. Allowance; number of rooms, 943. Application for; commutation allowed, 702. 1673 INDEX. QIIAUTERS— Continued. Assignment of, (i97. less than authorized number of rooms, 699. Care of; imauthorized use of (iovernment laborer, 702. Civilian professor at Naval Academy, 701. Contracts for, in excess of appropriations, 1116, 1288. Kxchange of; unauthorized agreement, 702. Ceneral provisions relating to, C9.5-702. C.uest of another officer, 698 699. Hire of, 697, 698. in Washington, 950. Marine band: second leader, 952. Mates: same as second lieutenants, 697, 827, 1275. Navy: contracts permitted in excess of appropriations, 1116, 12SS. No public quarters: defined, 698. Public quarters, defined, 698. Retired officer detailed to educational institution, 440. Secretary of the Navy to determine when public quar- ters not available, 1514. Shore, personnel of training force, 124S. Telephones: restrictions on installation and use of, 1384. Temporarily absent from station, 701. Warrant officers, commissioned, 1267. same as second lieutenants, 697, 827, 1267, 1275. RADIO: Operation of (Jovernment stations, 1556, 1557. Regulation of radio communication; general provi- sions, 1372-1379. Site for naval radio station procured from other de- partments, 1457. RAILROADS: Alaskan; transportation of coal; employment of naval officers, etc., 1393, 1394. Land grant, 1179, IISO. Payment for mileage books, commutation tickets, etc., in advance of travel, 1282. Reduced rates for disabled soldiers, sailors and marines traveling on furlough, 1554. Transportation of troops and material during war, 1 198, 1465. RANK: See Precedence; Relative rank. Acting assistant surgeons, 529, 675, 1261. chaplains in Navy, 1396. Act of August 29, 1916, not to reduce, 1435. Admiral; conferred on Chief of Naval Operations, 1418. conferred on officers of fleets, 1481. Advancement; examination of staff officers for, 1473, 1481, 1482. commissions not necessary, 102. commissions to be issued to retired officers, 1368. in numbers for conduct in battle or extraordinary heroism, 453, 454, 734-736, 921, 933. in rank, without change of grade, 652, 682. Senate's consent required, 734. of fleet officers to admiral and \'ice admiral, 1481. of retired officers; commissions furnished, 1368. of retired officers; jurisdiction of accounting offi- cers, 238. of staff officers, 1426, 1513. of staff officers; examinations, 1473, 1481, 1482. to "flag officer," 576, 660. Aid or executive of commanding officer, 669. Antedating on promotion, 649-651, 734, 931, 1390, 1459. after suspension, 731-733. commencement of pay, 830-8:38, 1178, 1390. Antedating; retirement of officer ^vith rank of higher grade, 912. Army and Marine Corps officers, 930, 931. RANK— Continued. Army officers by relation to the Navy, 662. Assimilated; warrant officers, 704. Assistant civil engineers, 1474. naval constructors, 1266. surgeons, 1273, 1426. Brigadier generals and rear admirals of lower half, 665-667,1501. Chaplains, 679, 680, 1268, 1396. Chief machinists, 1314. Chief of Naval Operations, 1418. Chiefs of bureaus, 367, 368, 369, 670-672, 1512. retired, 372-376. subsequently retired, 376, 1303. Chief warrant officers, 1267, 1314. Civil engineer corps, oflicers of, 678. rear admiral authorized for, 678. Coast and Geodetic Survey, members ser\^g with Na\'y, 1480. Coast Guard officers, 705. Commissioned warrant officers, 1267, 1314. Commodore changed to rear admiral, 672. Commodore; retired staff officers, 685. Congress may change officer's rank, 92, 910, 911. Construction corps, 505, 677, 678. Court-martial members, 1031. not to be junior to accused, except, 1015, 1017. Dental officers, Na\-y, 1421. Flag officer: commander of squadron, 576, 660. Former bureau chief subsequently retired, 376, 1303. General provisions relating to, 662-706. Grade distinguished; deflnitions, 378, 499, 577, 635-638, 682, 686. Grade synonjTnous; definitions, 379, 466, 678, 680, 907. Grade, title, and office distinguished; definitions, 449, 450, 683, 837, 910. Graduates of Naval Academy, 687, 765. Judge Advocate General, 968, 1186, 1187, 1512. retired, 372-376, 673, 968. Machinists, with other warrant officers, 1269. Marine Corps and Army officers, 930, 931. Marine Corps; commandant of, 928, 929, 1392, 1512. officers reinstated or given probationary appoint- ments, 1461, 1462. staff officers, 929, 1460. Medical corps, officers of, 673-676. Midshipmen, after graduation, 687, 765. Naval constructors, 1266. Office distinguished; deflnitions, 837, 910. Passed assistant surgeons, 675, 676. Pay from date of; graduates of Naval Academy com- missioned in Navy and Marine Corps, 1221, 1222. of officer advanced for heroism, 734. on promotion, 830-838; 1178; 1390. Pharmacists and chief pharmacists, 1420. Precedence according to; line and staff officers in processions, etc., 704. of court-martial members according to, 704, 1016. Professor at Naval Academy; officer detailed as, 667. Professors of mathematics, 680. Provisional, Naval Reserve Force, 1444. Rear admiral; rank temporarily assigned, 665. rank with major generals, 662, 665. Regulations governing, may be changed by Secretary oftheNa\T, 466. Relative rank changed to actual rank, 1265. Retired officers, 631. active duty during war or emergency, 1512, 1513. chiefs of bureaus; age or length of service, 672, 673. civil war service, 1266, 1293, 1312. considered as having been retired with higher rank, 912. 1674 mDEX. RANK— Con tinu ed . Ketired officers, dental corps, 1422. Judge Advocate General, Navy, 372-376, 673, 968. Marine Corps, 964. Medical Corps; next higher grade, 675. retired for purpose of creating vacancies, 1265. same as when retired, 1189. Morinp who tail physically for promotion in the Marine Corps, 965. vr<,-.rv who tail physicaUy for promotion in the Na%Tr, 1366,1433. , ., , Retired staff officers; retired tor age or length of service, 685. . „ ks? retired tor causes incident to the service, 687. Secretaries to admiral and \ice adnural, 455. Selection, officers promoted by, 1433. Senate must consent to changes in, 734. Special act restoring to officer, 733. _ Staff officers, according to date of commission, 1429. advancement, 680-685. advancement above lieutenant commander, 1513. below commander, 1426. examinations, 1473, 1481, 1482. command not to be exercised because of, 702, 1265. distribution in, 1427. general provisions relating to, 673-685. Marine Corps, 929, 1460. not entitled to additional quarters by virtue of, 695. not to confer miUtary command, 1265. rear admiral not a grade, 682. Superintendent of Naval Observatory, 1276, 1277. Supply corps, officers of, 676, 677. rear admiral autliorized for, 676, 677. _ Suspension from, continuing punishment; reimsslon of, 1052. Titles of staff officers not changed by, 1265. Vice admiral; officers of fleets to have, 1481. Warrant officers; assimilated, 704. machinists, 1269. Marine Corps, 1462. on promotion, 1267. RANK AND PRECEDENCE: General provisions relating to, 662-706. RAPE: Assault with intent to commit, 1349. Carnal knowledge of female under sixteen, 1349. Punishment tor, 1349. RATINGS: Advanced or reduced; pay of, 868, 869. Completelists of men to be furnished Secretary of the Navy, 995. Established in hospital corps, 1419, 1420. in Navy, 534, 1423, 1494, 1495, 1552. Naval Flying Corps, 1440, 1441. Naval Reserve Force, 1443, 1444. Naval vessels, 774. Reduction in, by commanding officer, 1002. by summary court-martial, 1006. by summary court-martial, f or incompetency.lOOT^ secretary of the Navy may estabUsh m Navy and Str::t:?^?accompany on transfer toother vessels, 995. RATIONS: See Commutation; Subsistence. Additional, special cases, 901. Army, funli^^d naval and marine detachments co operating with, 433. Commutation of; public money, 232. paid to messes, 1279. value of, 901, 902. ,,-„„„, sq« Court-martial prisoners; commutation of ,898. RATIONS-Continued. Discharged enUsted men, pending reenlistment, 120L 1202. Enlisted man, 895-898, 1194. Extra allowance for night watches, 899, 900. General provisions relating to, 893-902. Hospitals; allowed rations for patients, 1160. officers and men temporarily in, 898. Issue of fruits with fresh meat, 9(X). Judge Advocate General not allowed, 897. Marine Corps, enlisted men, 953, 954, 1531. officers not entitled to, 954. Midshipmen, 893, 1194. Navy; constituents of, 898, 899. Nurse Corps, female, 807, 808. Officers attached to seagoing vessel , 893-895. Property accounts; jurisdiction of accounting officers, 234. Refuse of, is Government property, 899. Regulations governing, prescribed by Secretary of the Navy, 1194. Retired officers, 916. Short allowance, 901. Stopped for the sick; accounting for, 901. Substitutions in, 899-901. REAPPOINTMENT: See Appointments; Reinstatement; Restoration. REAR ADMIRALS: Additional numbers in grade, 736. .„ v,„m Advancement from lower to upper half of grade held to bo a promotion, 736. to rank of admiral or vice admhal, 1481. Aids to; pay, 815-817, 1303. regulations governing; ^'^l^^ty of 785. Brigadier generals rank with lower half, 665-667 loOl. Captains considered as having been retired with rank of 912. CiWl engineers; rank authorized for, 678. Commodore changed to, 375, 672, 686. Construction Corps; rank authorized for, 677. Detail to selection boards, 1430. Distribution between upper and lower half, line and stafl, 1428. Flag officer construed to mean, 577. Number in stafl corps, 1427, 1428. Pay, 791, 797. first and second nine, 1264, 1301. upper and lower half, line and stafl, 1429. Promotion by selection to, 1430, 1513. by selection to; staff corps, 1513. from lower to upper half, 730. to, in time of peace, 451, 455, 721, 722. to, in time of war, 454. Proportion of in line, 1425. Rank of lower half, with relation to brigadier generals, 665-667, 1501. temporarily assigned, status of, 66o. with major generals, G62. whether upper or lower half , 665. Selection of officers to command squadrons, with rank of flag officer, 576, 660. Staff officers permanently commissioned with rank of, additional numbers, 1429. rank of not a grade, 682. Supply Corps; ^ank authorized in, 67MV7. Two grades for pay purposes, 447, 664r*b5. REBEL: See Enemy; Insurrection; liar. Intercourse with, punishment for. 979. REBELLION: Enlisting to serve against Umted States, 1318. Inciting insurrection, etc., 1317. 54641^^—22 106 1675 INDEX. RECEIPTS: Disbursing officers taking, for larger sum than paid, 1329, 1331. False; punishment for gi\'tng or receiving, 990, 1324. Forgcrj' of, 1322, 1323. RECEIVERS: Appointment for contractor building naval vessel, 773. RECEIVING SHIPS: Home on, for men honorably discharged, 1201-1202. Sea pay for duty on, 879. Status of; not seagoing vessels, 897. RECEIVING STOLEN GOODS: Buying, etc., property of United States illegally sold, etc., 990. Punishment for, 1328, 1350, 1351. RECESS APPOINTMENTS: Acceptance of, 461, 462. Accounting officers notified of, 1072. Decisions relating to, 99, 100. No salary until confirmation if vacancy existed while Senate in session, 1066. Officers advanced for heroism, 735. Rear admirals holding, are qualified for membership on selection boards, 1431. Retirement of officers holding, 640, 651. Revocation of, 100. Status of officers if not confirmed, 651. Tempoary adjournment of Senate, 33, 217. appointments to fill vacancies occurring in depart- ments, 216, 217. RECOG^^ZANCE: Witnesses required to give, 425, 426. RECORDER: Deck court; who may serve as, 1308. Oaths to witnesses administered by, 217. Summary courts-martial, 1006. RECORDS: Accoimting officers refused information from, 238, 239. Alteration of, 357. Alteration of; veto of bill requiring, 35. Bonds; officer not entitled to old bond on giving new one, 495. Contracts; bidstoberecordedat time of opening, 1110. copies to be filed in Returns Office, 397. proposals to be recorded and reported annually to Congress, 1113. to be filed in offices of accounting officers, 1118. Copies of for use in court, 424, 426, 427, 1009, 1010, 1023. Court of Claims may call on departments for, 1364, 1365. Court of inquiry proceedings; admissible before courts-martial, 1056, 1057. how authenticated, 1056, 1057. judge advocate to keep, 1056. Courts-martial; conclusive; can not be collaterally attacked, 1036. evidence before examining boards, 718, 719. judge advocate to keep, 1019. signed by members and judge advocate, 1034. Deck courts, 1309. Departmental; custody of 193, 194. quasi confidential, 194. Diseases; treatment and character of, 466. Evidence in trials for embezzlement, 1330, 1331. Examining Vjoards, promotion, 724. Falsification of, 1336, 1368. Forging, 1322. Larceny of, 1328. Naval; transfer to the Navy Department, 1283, 1295, 1389. Navy Department, custody of, 352, 361. RECORDS-Continued. Navy Department, examining boards to consider in promotion cases, 722, 723. general provisions relating to, 354-356. submitted to President in promotion cases, 724. Production of, before commission to take testimony, 423. in court, 194. Public property; heads of departments required to keep, 227. Removal of; custodian should use force to prevent, 194. papers from, 357. Retiring board; action on by the President, 616. Selection boards furnished with, 1431. Students and others afforded facilities for study and research, 1275. Summary courts-martial; filing and destruction of, 1009, 1311. recorder to keep, 1006. Treasury Department; transcripts for use in court, 427. Unauthorized removal and use of, 1326. Useless papers at navy yards and stations, 1401. in buildings under control of departments, 1248. in executive departments, 1202, 1203. on naval vessels, 1381. RECRUITING: See Enlisted men; Enlistments: Fraudulent enlistmeni. Advertising, 1382, 1515. Appropriation, "Transportation, recruiting, and con- tingent:" expenses chargeable to, 1274, 1275. Estimates and appropriations for expenses of. Navy, 1103. Minors; restrictions governing enlistment, 1402, 1403. Oaths administered by recruiting officers, 1240. Obstructing, during war, 1484. Penalty for enlistment of prohibited classes, 994. Postmasters making enlistments, 1419. Premiums, Navy; estimates and appropriations for, 1103. RED CROSS: Detail of Navy medical officers to, 1436, 1437. Loan of naval equipment, etc., to, 1394, 1395. Use of, in time of war, 1369. REDUCTION: Of army; decisions relating to, 98-99. Officers; to a lower office, 988. to enlisted rating, 524, 988. confirmation of sentence, 1045. Pay of office; executive can not reduce statutory com- pensation, 208. Rating of enlisted men; by commanding officer, 1002. by summary court-martial sentence, 1006, 1007. pay, 868, 869. Warrant officer to enlisted man; court-martial sen- tence, 524. REENLISTMENT : Construed; held to be enlistment, 935. Pay; Marine Corps, 883-891, 947. REFUSE: Garbage from general mess public property, 899. REGATTAS: Regulations; enforcement of by head of any depart- ment, 1300, 1301. REGI3IENTS: Marine Corps, 936. commanding officer may convene summary courts- martial, 1441. REGISTER: See Kavy Register. Biennial, public officers and employees; data required for, 228, 1235, 1236. 1676 INDEX. REGISTER— Continued. Naval vessels stricken from; annual report to Congress, 1190. sale of, 1192. status of, 779. Navy; advancement for war service designated in 1275, 1276. number ofextra copies to be printed, 1235. Official Register of the United States to contain names, etc., of naval officers, 1235, 123G. data to be furnished for, 22S, 1235, 1236. printing and distribution of, 1235, 1236. REGISTER OF WILLS: District of Columbia: guardianship papers prepared by, without charge, 1217. REGULAR DEALERS: Bids submitted by persons who are not, 1114. REGULATIONS: See Rules of the road. Absence from duty caused by misconduct; procedure, 1436. Accounting officers bound by, Army, 241. bound by, Navy, 198, 273, 786, 787. refusing to follow, 838, 839. Acting appointments of machinists made permanent according to, 1269. Administration of law and justice in the Navy; validity of, 785, 786. Advances of pay; vaUdity of, 838, 839. Army; Marine Corps subject to, 956, 961. Attorney General's opinion as to interpretation or validity of, 298, 299. Aviation schools; Coast Guard personnel subject to, 1456. Board of inquiry at Naval Academy governed by, 12.86. Bonds, liability can not be changed by, 211. Business of Navy Department; reorganization of, 360. Cash rewards to civilians for suggested improvements, 1514. Coast and Geodetic Survey; prescribed by Secretaries of Navy, War and Commerce, 1480. subject to Navy, 1479, 1480. Command of vessels and squadrons; President to for- mulate, 1277. Congress to make, for naval forces, 58. Contracts construed in connection with, 787. Court-martial proceedings; validity of, 785, 786. 1 service of commissioned officers of Coast Guard, etc., as members of, 1494. Customs equivalent to, 196, 885. Death gratuity; designation of person to whom pay- able, 1.546, 1547. Deceased personnel, Navy; disposition of efiects, 786, 1503. Decisions relating to, 194-201, 260, 261, 784-787. Deck courts; President to issue, 1309. Definition of, 195. Delegation by Congress of power to make, 59, 195, 784, 787. Departmental, authority to make, 193. Disbursing officers: duties of, 786. responsibility for disbursements, 267. Discharge prior to expiration of enUstment; Secretary of Navy to prescribe, 1381, 1382. Discharged enlisted men subject to, pending reenUst- ment, 1201, 1202. Duties of Supply corps; authority to make, 468. Enlisted men; qualifications for specified ratings, 1495. subject to until discharged, 555, 556. Executive power to establish, 82. Footnote; effect of as regulation, 1064. REGULATIOXS-Continued. Hazing, rules to prevent at Naval Academy, 1281. Heads of departments, concerning research by stu- dents and others, 1275. Inconsistent with law; discharge of enlisted men, 524, 784. Lighthouse Service; prescribed by Secretaries of War, Navy and Commerce, jointly, 1457. subject to Navy, during war or emergency, 1456. Limitations upon power to make, 198, 784. Loan of naval equipment, etc., to Red Cross, 1394, 1395. Loan or gift of ordnance, etc., to societies and munici- palities, 1249. Mail clerks. Navy, governed by postal laws and regula- tions, 1306. Manual for government of naval prisons, 786. Marine Corps; President to prescribe, 956. Marine parades and regattas; enforcement of by heads of departments, 1300, 1301. Medals of honor, distinguished-service medals and Navy crosses, 1522, 1523. Must be consistent with law, 524, 784. Naval Academy, 738, 739. issue of clothing to midshipmen, 770. statutes interpreted in connection with, 787. violations of to be promptly reported, 1287. Naval Home; disposition of effects, deceased inmates, 1395. disposition of pensions due beneficiaries, 1395. Secretary of the Navy to prescribe, 1160. Naval Observatory: board of visitors to prepare for Secretary of the Navy, 1276. Naval Reserve Force; 1443-1447, 1449, 1453. promotions, 1510. subject to Navy, 1446, 1447, 1451, 1511. Navigation, etc.. Pearl Harbor; Secretary of Navy to prescribe, 1382. Navy, authority to issue, 784. approval of President; whether personal action required, 787. changes in, 784. copy to be furnished officers, 787. Marine Corps subject to, 956, 961. . retired officers subject to, 631. Pay clerks, Navy; appointment, duties, etc., 1406, 1407. Practice equivalent to, 885. Precedence; graduates of Naval Academy; validity of, 689. President can not usurp powers of Congress, 781. Private property; claims for loss or damages in naval service, 1493. Proliibition of liquors near military camps and to members of the service, 1477, 1478. Promotion of warrant officers, 1267. Property returns; by storekeeper at Naval Academy, 1304. charges against officers losing public property, 1223. Purchase of copyrights and plates for Hydrographic Office, 12:56. discharge; President to prescribe, 1222. Rank and precedence; Secretary of the Navy may change, 466. enlisted men and midshipmen. Navy, 1194. Rations of enlisted men, Marine Corps, 1531. Sale of old material; Secretary of the Navy may pre- scribe, 1190. of subsistence stores, etc., 1313, 1314, i;i91, 1464. of uniforms, etc., to marine officers at cost, 1531. Secretary of the Navy not boimd by, 352. Ships' stores profits, expenditures from, 1359. Statutes interpreted in connection with, 787. Summary court-martial proceedings, 1009, 1311. 1677 INDEX. REGULATIONS— Continued. Supplies; use, preservation and disposition of, 787, 788. Treasury, 259. to be observed respecting public moneys, 1098. Usages equivalent to, 196, 885. Validity of; accounting officers' decision not binding, 239. Validity of; advances in pay to naval personnel, 838, 839. rule for testing, 199. Violating or refusing obedience to, punishment. Navy, 985. Waiver of, 200. Weight of; force of law, 197, 784. REIMBURSEMENT: See Claims; Damages; Effects; Privaie property. Commutation is form of, 702. REINSTATEMENT: Civil employees; honorably discharged from military service, 1524. members of National Ouard and Medical Reserve Corps, 1464. members of Officers' Reserve Corps, 1476. service credited for retirement, 1541. transferred to Census Office, 1526. who served in Army or Na\'y during war with Germany, 1530. Dismissed officers, 94, 582, 1503. Former officers, honorably discharged from the Navy, 1393. Marine officers, as second lieutenants, 1461. Midshipmen, 747, 749, 761, 762. Naval officers dropped from roljs for unauthorized absence, etc., 1503. RELATIVE RANK: See Precedence; Rank. Abolished in the Navy; changed to actual rank, 1265. Army and Navy officers, active and retired, 662. Brigadier generals and rear admirals of lower half, 665-667, 1501. Command not to be exercised by staff officers because of, 702. Defined, 674. Naval officer detailed as professor at Naval Academy and officers of Army, 667. Nurse Corps, female. Army, 808. Officers of Marine Corps and officers of the Navy, 667. RELEASES: President authorized to obtain where lands purchased for United States, 1121. RELIGION: Form of worship; chaplains, 502. REMISSION: Sentences imposed on Coast Guard personnel, 1455. Sentences of courts-martial, 85. courts-martial, by Secretary of the Navy, 1309. deck courts, 1308. general courts-martial, 1051-1055. summary courts-martial, 1009. suspension, 669. REMOVAL OF OFFICERS: See Dismissal; Discharge; Dropped; WhoUy retired. RENTED BUILDINGS: District of Columbia; others may be rented instead of ones occupied, 1187. reports concerning, 1218, 1391, 1543. specific appropriation required, 1181, 1182. Estimates and appropriations for, Navy, 1103. Reports to Congress in annual estimates, 1191. RENTED LANDS: Public buildings erected on, 285, 1508. REOPENING OF ACCOUNTS: See Accounts. REPAIRS: See Public property; Vessels of the Navy. Estimates and appropriations for. Navy, 1103. Naval vessels, 776, 777. Public buildings and improvements; contract not to exceed appropriation, 1116. REPAIRS AND PRESERVATION: Appropriation for: use at naval training stations, 1530. REPE.\L: See Statutes. Acts embraced in Revised Statutes, 1173. Effect of, on former statute, 187. on penalties, pending prosecutions, etc., 187. REPE.\TED TRAVEL: Actual expenses allowed for, 842, 843, 1272-1274, 1278. REPLEVIN: Public property can not be obtained by private par- ties, 194. REPORTS: See A ppropriations; Contracts; Estimates; Printing and binding; Public property. Accounts; delinquency of officers required to render, 1226. Annual; extracts from, included in book of estimates, 1179. fiscal year defined, 257. time for submitting copy to printer, 227, 1416, 1417. Armor plants; cost of products, 1419. Automobiles: quarterly, to Bureau of Yards and Docks, 1546. Board of Visitors, Naval Observatory, to submit, 1276. Buildings owned in District of Columbia: statement concerning, 1553. rented, included in estimates, 1191. in District of Columbia, 1218, 1391, 1543. Bureau of Supplies and Accounts, to Congress: money value of supplies on hand, etc., 1203. to Secretary of the isavj; receipts and expendi- tures, 1304. Chaplains required to make, annually, 503. Checks outstanding, 1417. Chief clerks to submit monthly, 209. Civil establishment; employed under Increase of the Navy and other general appropriations, 381, 1194, 1272, 1312, 1313, 1418, 1419. in departments, 227. inefficient employees, 1204. number and compensation of professors and in- structors at Naval Academy, 1457. Claims allowed; Secretary of the Treasury to Congress, 1193. Claims for damages caused by naval aircraft, 1545. caused by naval personnel, 1527. caused by naval vessels, 1358, 1359. Commanding officers to submit to Secretary of the Navy, 573, 901, 995. Condition of business in department; submitted monthly to head of department, 1211. submitted quarterly to President, 1221. Contingent funds; expenditiu-es from, 226. Cost of work, naval appropriations; direct and indirect charges, 1365, 13f>6. Departmental publications; cost and distribution, etc., 1556. Disbursing officers; annual statement of checks out- standing, 279. Estimate of cost to print usual number must accom- pany, 1230. 1678 INDEX. REPORTS— Continued . Exchange of typewriters, adding macliines, etc., in part payment for new ones, 1409, 1410. Expenditures; to be submitted annually to Congress, 226, 1183. to Secretary of Treasury, 261, 265, 266. Failure to make at time required by law or regulaton, punishment, 1331. Fake and fraudulent, 902, 1170, 136S. General provisions relating to, 3S1-385. Indebtedness of disbursing officers, 1226. Not to be distributed with compliments of officer, 1236. Printing of, from bureau chiefs; head of department to direct, 1238. number of copies limited, 1238. time for furnishing copy to Public Printer, 227, 1416, 1417. Proposals for contracts; submitted annually to Con- gress, 1113. Publications received and distributed, 1239. Public Printer to Congress, work done for departments, 1231. Quarterly; publication of Navj' receipts and expendi- tures, 262. Rations, short allowance of; commanding oflBcers to report to Navy Department, 901. Relief granted by Secretary of the Navy to disbursing officers for loss of funds, 1527, 1528. Repairs and changes in naval vessels, proposed, 1299. Repairs to naval vessels, 1314. Retirement of civil employees; information concerning records of, 1.542, 1543. Sales of old material, and other public property, 1190, 1360. public property; proceeds of, and other miscel- laneous receipts, 1296. vessels; statement submitted to Congress, 777. war supplies, lands, buildings, etc., 1516. Secretary of the Navy required to make upon certain subjects, 381. Supreme Court; distribution of, 1365. Travel by employees to points outside the District of Columbia, 1305. Useless papers accumulated in files; disposal of, 1202, 1203. Vessels imfit for repairs or not to be completed, 1190. REPRESENTATIVES : See Death; Members of Congress. Legal; effects of deceased persons on vessels to be se- cured for, 995. REPRIMAND: Comanding officer may inflict as punishment, 1002. Commanding oflBcer not to enter in ship's log, 1002. Plea of former piuiishment, 119. Secretary of the Navy may reprimand subordinates, 119, 351, 352, 10O4. REPROACHFUL WORDS: Punishment for using in Navy, 984. REQUISITIONS: SeePrinting and binding. Medical stores for fleets and squadrons, 466. Money, advances of, 1225, 1226. drawn on Secretary of the Treasury, 1104. Naval supplies; made by bureaus upon Paymaster General, 1203. RESEARCH: Departmental facilities open to students and others, 1275. RESERVATIONS: Naval; Indianhead; jurisdiction of United States, 294. Naval; jurisdiction over, 292-294. RESERVATIONS— Continued. Public land laws not applicable to military, etc., 1087. United States; jurisdiction over, 289-292. Maryland; jurisdiction, 293, 294. status of residents, 290. RESERVE: List of persons eligible for conmiissions in, 1392. RESERVE CORPS: Army officers; leave of absence to civil employees, members of; reinstatement, 1476. RESERVE FORCE: See Naval Reserve Force. RESERVE MATERIAL: Appropriation for. Navy, reimbursed for stock issued, 1473, 1482. RESERVE NURSES: Nurse Corps, female. Navy; number, active duty, compensation, 1303, 1304. RESERVE SUPPLIES: Appropriations not available for accumulation of, 387. RESIDENCE: Candidates for appointment as midshipmeii, 7.50, 751. Home not synonymous; definitions, 876. Naval officers; medical attendance dependent upon, 904. Retired officers, 643. foreign country, 572. RESIGNATION: Acceptance of, in true names, 1379, 1380. necessary before quitting duties, naval officers, 989. Additional number officer; vacancy not filled, 1275, 1276. Cliiefs of bureaus; vacancy temporarily filled, 212, 214, 364, 466, 1222, 1224, 1261, 1280, 1284, 1418. Date effective, 826. Desertion; officer quitting post before notice of accept- ance, 9S9. Head of department, temporary appointment to fill vacancy, 212-217. Implied; acceptance of another office, 529. acquiescence in dismissal; acceptance of other office, etc., 989. naval officer accepting diplomatic or consular appointment, 579. Mileage allowed for travel home, 844. Naval officers; subsequent appointment to Marine Corps authorized, 1461. Officers declining to submit, 340. Officers in departments, limitation on temporary ap- pointment to fill vacancy, 216. Retired enlisted men, 1514. Revocation of acceptance, invalid, 583, 747. Right of officer to resign, 99. To escape dismissal; naval officer ineligible for reap- pointment, 582. Undated; filled in and accepted for cause, 583. RES JUDICATA: Advancement of officer for heroism; prior adminis- tration, 734. Applies only to specific case decided, 349. Attorney General will not review opinion of prede- cessors, 320. Decisions of heads of departments are binding on suc- cessors, 348-349. Examinations for promotion. Navy; facts once deter- mined not reopened, 1183. Finality of court-martial sentence after confirmation, 1038, 1039. Qualifications of candidate after appointment, 96, 750. Reconsideration of action by reviewing authority, general courts-martial, 1051, 10.52. 1679 INDEX. RKS JUDICATA— rontimicd. Reopening of accounts by subseiiuent administration, 255, 256. Retirement of officer; cause of, 909, 910. RESOLUTIONS: Form of, 1S7. RESPONSIBIUTY: Disbursing clerks, 212. Disbursing officers, for losses, etc.; how relieved from, 488, 1.362, 1363, 1527, 1528. for expenditures by order of superior officer, 266. wrecked or captured vessels, relief of, 266. Heads of departments for official acts, 78, 350, .351. Military officers committing illegal acts, 54, 57, 1003. RESTORATION; Dismissed officers, 94, 582, 1012, 1 178. RETAINER PAT: See Naval Reserve Force; Pay of Naval Establishment. RETIRED: Definition of, 672. RETIRED ENLISTED RIEN: Active duty, 1405, 1406, 1451. death gratuity law applicable to, 1.546, 1.547. pay and benefits, 872, 873, 890, 1269, 1299, 1514. Civil employment; restrictions on double salaries not applicable to, 1411. . Computation of service; pay and allowances, 1299. Detail to educational institutions, 441. Honorable-discharge gratuity and continuous-service pay, 890. Marine Corps; laws relating to, 967. Navy; pay of, 872, 873. Promotion, 1514. Rank, 1269. Resigning to reenlist, 1514. Status of, 5:38,969, 1180. RETIRED OFFICERS: See Civil employment; Details; Pay of Naval Establish- ment; Retirement; Retiring boards; Wholly retired. Active duty; advice and consent of Senate required for command of vessels, 659. as member of court-martial, 1018. attending court-martial as witness or accused, 658. chiefs of bureaus and Judge Advocate General, 376, 377. command in time of war, 659. death gratuity law applicable to, 1546, 1547. detachment without formal order, 659. leave of absence does not detach from, 659. Marine Corps, under Navy laws, 659. not an officer of active list, 657. orders must be specific, 658. pay and aUowances, 913-915, 1380, 1381, 1437, 1512, 1513. promotion and pay, 1512, 1512. policy of Congress, 655, 657. practical restoration to active list, 658. preparation of affidavit is, 658. prohibited, except in time of war, 656. special enactment, fixing officer's pay, 1437. warrant and commissioned warrant officers; pay; creditable record, 1503, l.')04. Additional compensation allowed by college to which detailed, 439. Advancement in rank; date effective, 6.38-640. jiu^isdiction of accounting officers, 238. new commissions, 1368. not promotion to higher grade, 652. Allowances; chiefs of bureaus subsequently retired, 1.303. Appointment as flfeet engineer, 500. RETIRED OFFICERS-Continued. Appointment as prize commissioners, 1139. to office limited to active list; not eligible for, 643, 658. Attorney against United States; not to act as, 224, 969, 1.333. Chief of Naval Operations; rank and pay, 1418. Chiefs of bureaus continuing to serve after retirement, 376. subsequently retired, 1303. Civil employment; prosecuting claims or defending accused before courts-martial, etc., 224, 969, 1333. in departments held by, 337. in territories; restrictions on holding, 1075. may accept position as mayor of a city, 1075. restricted: private companies, 1250. restrictions on double salaries not applicable to, 1411. restrictions on holding, 1066-1071. Civil War ser%ice; rank and pay, 968, 1266, 1282, 1293, 1312. Commissions furnished to, when advanced in rank, 1368. Congressman; whether eligible to hold both places, 34, 643. Counsel before courts-martial, departments, etc., 224, ,969, 1333. Courts-martial; duty as members of, 1018. jurisdiction over. 62, 631, 643, 644. veto of bill changing law, 643, 644. Decisions relating to, 632-646. De facto officers, 641, 912. Dental Corps: rank and pay, 1422. Detailed to educational institutions, 438-441, 1247, 1248. Diplomatic or consular appointment; restrictions on, 579, 580. Eligibility for seat in Congress, 34, 643. Furloughed officers, distinguished from, 583. General legislation, whether applicable to, 438, 580, 633, 634, 658, 832, 908. Grade on retired list, Navy, 631. Held to be an " officer of the United States," 224. lUegally retired; status of, 641. Incompatible offices, 1069. Marine Corps, active duty, 966-968. Civil War service, 968, 1282, 1293. detail to educational institutions, 441. status of, 969. Medical attendance, 440. Navy; general provisions relating to, 585-661. status of, 631. Oath of office: civilian appointed on retired list, 633. Pay; held to be salary, 911. held not a pension, 635. Marine Corps, 965. Nav-y, general provisions relating to, 906-916. Navy; 30 years' service; based on highest pay of grade, 1303. Navy to be same as when retired, 1189. not increased or reduced by personnel act, 1268. Places of, filled by seniority promotion in the Navy, 646. Precedence, 704. Promotion on retired list authorized in time of war or emergency, 1512, 1513. on retired list: pay not to be increased by, 912, 913. prohibited, 1189. under former laws, 655, 656. pending when retired, 592, 651, 832. staff officers retired for length of service, 685. Rank, chiefs of bureaus, .372-376, 1303. Civil War service, 1266, 1282, 1293, 1312. 1680 INDEX. RETIRED OFFICERS-Continiicd. Raak; Congress may reduce, 910, 911. considered as having been retired with higher rank, 912. failing physically for promotion, 640-641 , 1366, 1433 Judge Advocate General, 372-376, 673, 968. Marine Corps, 964. retired volimtarily to create vacancies in the Navy, 1265, 13S0. same as when retired, 1 189. selected officer not physically qualified for pro- motion, 1433. staff officers; age or length of service, 685. imder recess appointment, 640. Rations not allowed, 916. Relative rank with Army officers, 662. Removal from retired list; power of Congress, 635. Residence, 643. abroad; citizenship, 572. Restoration to active list, 660, 661. Signatures of, 633. Status of; part of the Navy, 632, 633. retired on furlough pay, 619. whether general legislation applicable to, 438, 580, 633, 634, 658, 832, 908. withdrawn from command and from line of pro- motion, 654, 655. Status of; wholly retired, 619, 631. Transfer from furlough to retired pay list, 916. Uniform to be worn by, 631. Veto of bill restoring to active list, 35, 36. to render not amenable to court-martial, 643, 644. Witnesses in civil court, 414. Wholly retired; status of, 619, 631, 911. RETIREMENT: See Pay of Naval Establishment; Retired officers; Eetiring board; Wholly retired. Acting assistant siu'geons, 528. Additional number engineer officers, 1366. officer; vacancy not filled, 1275, 1276. Age; chiefs of bureaus, 672. dental officers, seventy years, 1422. Marine Corps, 964, 969. naval officers ineligible for selction because of, 1434, 1551. not applicable to certain officers of the Navy, 593. to volunteer officers, 592. sixty-two years, Na\'y, 589. sixty-four years. Navy, 589, 1435. staff officers, 685. Appointment of successor completes, 596. Army decisions applicable to Na\'y cases, 632. Cause of; can not be altered, 620, 909, 910. jurisdiction of accounting officers, 605. Chief of Naval Operations; rank and pay, 1418. Chiefs of bureaus ; age or length of service; rank, 672, 673. decisions relating to, 372-377. rank, 672, 673. subsequently retired, 1303. vacancy created by, 672. vacancy not created by, 376. vacancy, temporary, created by, 215. Civil employees; age, 1536. annuities paid monthly, 1542. applications; certificates of heads of departments, 1540. classification and rates for annuities, 1537. Commissioner of Pensions, jurisdiction; appeals, 1538. computation of service, 1538. RETIREMENT— Continued . Civil employees; deductions from pay, 1540, 1541. deductions from pay compulsory, 1541. dedaetioiis from pay, donations, etc., creflited to retirement fund, 1541. deductions from pay refunded on separation from service, etc., 1542. disability retirement in lieu of other compensation, 1538, 1539. general provisions, 1536-1543. moneys not subject to attachment, etc., 1543. persons entitled to, 1536. reinstated employees, etc., 1541. reports to be made by departments concerning service, etc., 1542, 1.543. retention in service beyond retiring age, 1539, 1540. CiviUans not entitled to benefits of Navy laws, 586-587, 632. Civil War officers; rank and pay, 968, 1266, 1282, 1293, 1312. Colonels in Marine Corps as brigadier generals, 1462. Compulsory, to create vacancies, 1266. repeal of law, 1403. Congress may transfer officer to retired list, 92. Courts without jurisdiction to order, 620, 642. Date of, 591, 592, 596, 638-640, 912. of vacancy caused by, 649, 1431. Definition of retired as applied to chief of bureau, 672. Dental officers, 1422. Disability; held to be a benefit, 602. Marine Corps, 964, 968, 969. Navy, 598-617. certain officers not retired for other cause, 593. not incident of the service, 617. not incident of the service; wholly retired, 617. Engineer officers who are additional numbers in grade, 1366. Enlisted men; computation of service, 1269, 1270, 1291, 1299, 1529, 1550. Naval Academy band, 1355. thirty years' service, 538, 967, 1269, 1270, 1299. Errors in, 587, 601, 602, 621, 641, 642, 911, 912, 968, %9. Finality of proceedings after President's action, 616. Fifty-five years' serx'ice, Na^-y, 593. Former chief of bureau, 376. Forty-five years service; Marine Corps, 964. Navy, staff officers, 685. Forty years' service; Marine Corps, 964. Navy, 585. Navy; inapplicable to certain officers, 593. staff officers, 685. Furlough pay; marine officers; illegal, 621, 622. Navy, disability not incident of the service, 617. Illegal; status of officer; stiU on active list, 587. Incapacity; definition of, 598. Incident of the service; disability, 617. Irregulatities, 601, 602. acquiescence in, 004. Judge Advocate General, rank, 372-376, 673, 968. Length of service, cliiefs of bureaus, 672, 673. computation of, 5S7, 927, 964, 969, 1191, 1390, 1550. Navy, inapplicable to certain officers, 593. staff officers, 6S5. Line of duty; decisions relating to, 605-616. Major General Commandant, Marine Corps; rank and pay, 1392. vacancy temporarily filled, 215. Marine Corps; laws and decisions relating to, 963-971 . Mates, 519-521. Mental temperament; peculiarities of, 593, 598, 599. Misconduct; officer of Navy not to be retired for, 622. 1681 INDEX. RETIREMENT— Continued. Moral iinfilness for promotion, 597. not to bo retired for, 11S9. Naval Academy band members, 13o5. Naval Reserve Force; enrolled members, 20 years' service, 144G. limited to physical disability, 1509, 1510. physical disability, 1549. service credited for, 1 r)09. transferred members; tliirty years' service, 1449. Navy; certain officers to be retired only for physical disability, 593. general provisions relating to, 5S.>-661. hearing required before retiring board, 622. officers not recommended for promotion, 594, 640, 641, 911, 1366, 1433. voluntary authorized, to create vacancies, 1265, 1380. Pay clerks; reserve service credited for, 1529, 1530. Permanent incapacity, definition of, 59S. Physical examination for promotion not sufficient for, 601. incapacity defined, 598. President's action; delay in, 617. illegal, 622. revocation of, 619. President's power; constitutionality of statutes, 617. Probationary officer; dental surgeon, 621. Promotion pending; status of officer, 592, 651, 832. Rank, chiefs of bureaus, 372-376. chiefs of bureaus; age or length of service, 672, 673. chiefs of bureaus subsequently retired, 1303. CivU War officers, 968, 1266, 12S2, 1293, 1312. commodore changed to rear admiral, 672. considered as having been retired with higher rank, 912. dental officers, 1422. failingtoqualifyforpromotion,640-641, 1366, 1433. increased for creditable service; policy of Congress, 687. Judge Advocate General, 372-376, 673, 968. Marine Corps, 964. medical officer, next higher grade, 675. of higher grade; not cliange in grade, 686. recess appointment, 640. retired to create vacancies, 1380. same as when retired, 1189. selected officer not physically qualified for promo- tion, 1433. staff officers; age or length of service, 685. causes incident to the service, 687. Revocation of; officer illegally retired, 587. Secretary of the Navy acts for President, 586, 642, 643. Service; computation of, 587-589, 927, 964, 969, 1191, 1390, 1550. Selected officer physically disqualified for promotion; actual rank, 1433. Special act of Congress, 911. Staff officers, 685, 687. rank of rear admiral, 672, 675. Temperamental unfitness for duty, 593, 598, 599. Temporary officers, physical disabihty, 1549. Thirty years' service; Marine Corps, 964. Navy, 1303. Navy; may be denied, 586. Vacancies filled by seniority promotion, 646. Waiting orders distinguished from, 643. Waiver of, 521, 523. Warrant officers, 511, 512, 602. machinists, 1269. Marine Corps, 1462. RETIREMENT— Continued. Warrant officers, Navy and Marine Corps; reserve service credited for purpose of, 1529, 1530. Wholly retired distinguished from, 911. RETIRING HOARDS: Burden of proof; cause of disability, 915, 916. Cliiefs of bureaus ordered to appear before, 376. Courts can not review action of, 620. Findings; incident of the service, 617. Hearing before; officers of Navj' entitled to, 622. Illegally constituted, 971. Judge Advocate General's duties relating to, 1186, 1187. Marine Corps; composition of, 970. provisions relating to, 964, 970. Navy and Marine Corps; convening of, on foreign sta- tions, 1472. Navy, 598-617. action by the President, 616. composition of, 598. findings of, 603, 617. oaths of members, 603. powers of court-martial and court of inquiry; may exercise, G03. reconsideration on own initiative, 604. President's action; delays, 617. illegal, effect, %8, 969. revocation of, 619. Reconsideration on own initiative, 621. Report of, cause of disability, 915, 916. Revision by the President, 616. Surplusage in finding, 604. RETURNS: See Accounts; Crimes; Disbursing officers. False, 1170, 1368. Form of keeping and rendering, 259. Habeas corpus; time and form of, 405. RETURNS OFFICE: Copies of contracts to be filed in, 1118, 1119. Copies of returns; evidence in court, 428. Duties of, 398. False returns filed in; prosecution for, 428. Navy contracts; copies to be filed in, 397. Penalty for omitting to file returns, 1119. REVENUE CUTTERS: Cooperation with Navy, 1091. REVENUE CUTTER SERVICE: Consolidated with Life Saving Service and desig- nated as Coast Guard, 1400. Service in, credited to naval personnel for pay and retirement, 1550. REVIEWING AUTHORITY: Court-martial cases; decisions relating to, 1037-1055. REVISE: Definition of, 359, 1043. REVISED STATUTES: Explanation of, 2, 1173. Interpretation of, 18, 22. Interpretation of; particular words defined, 185, 186. Repeal provisions, 1173. REVISION: Court-martial proceedings, not second trial, 120. Examining board's proceedings, 724-728. Proceedings of court-martial, reconvened, 1043, 1044. REVOCABLE LICENSE: Use of public land by private parties, 291. REVOCATION: Acceptance of resignation, invalid, 583, 747. Appointment as mate, 522. acting assistant surgeon, 529. acting chaplain, 1396. acting ensign, 1435. 1682 INDEX. REVOCATION— Continued . Appointment as midshipman, 747. second lieutenant, Marine Corps, 1461, 1462. temporary officer in a higher grade, 652. warrant officer, 524. Discharge; by illegal sentence of court martial, 568, 975, 1008, 1009. of enlisted man obtained by fraud, 568. issued by mistake of law, 1011. Dismissal of midshipman; unauthorized, 761. President's action on examining board for promotion, 596, 630, 728, 734. on retiring board, 619, 620. Recess commission, 100. Retirement, 587, 596. Temporary commission; officer issued new cormnission in same grade, 669. REWARDS: Civil employees, for suggested improvements, 1514. Deserters arrest of, US. checkage of amount against pay unauthorized, 1064. RIBBON'S: Presentation of, in coimection with medals, 1521. RIFLE PR-\CTICE: Use of ranges by naval service, 1412, 1413. RIGGERS: Service on boards concerning repairs to vessels, 777. RIVERS: See Regattas. Rules for preventing collisions, 1125, 1130, 1135, 1251- 1261. motor boats, 1356-1358. ROAD DUTY: State interference with Federal instrumentalities, 50. ROBBERY: Mail custodian; offense against, 13.39. Personal property of United States, 1328. Punishment for, 1350. ROPE WALKS: Superintendent of, at navy yards, 779, 780. ROSETTE: Presentation of, to be worn in lieu of medals, 1521. ROYALTIES: Lands in naval petroleum reserves and royalty oil in naval reserves, 1545. RUBBER STAIVEP: Signature of pubUc officer, 351. RULES: See Regulations. RULES OF THE ROAD: Collisions; duty of master; penalty, 1215, 1216. Great Lakes, etc., 1240-1246. Harbors, rivers and inland waters, except Great Lakes and Red River of the North, etc., 12.51-1261. High seas; international, 1204-1215. Motor boats; regulation of, on na\'igable waters, 1356- 1358. Navigation of certain inland waters, 1246, 1247, 1251- 1261. Pearl Harbor; navigation, anchorage, etc., 1382. Red River of the North and rivers emptying into the Gulf of Mexico, and their tributaries, 1125-11.30, 1246, 1247. Red River of the North, Mississippi River, etc., 1135. Regattas or marine parades; rules governing, 1300, 1301. Regulations governing vessels propelled by steam, etc., in passing each other, 1135, 1246, 1260. Shipping Board to recommend changes in navigation laws and regulations, 1467. RUNNING MATES: Advancement of stafi officers with, 1426. SAILING DIRECTIONS: Hydrographic Office to provide, 387, 1238. SAIL>I.4KERS: See Warrant officers. Service on boards concerning repairs to vessels, 777. SAINT ELIZABETHS HOSPITAL: Deceased inmates; disposition of moneys, 1296. Established in District of Columbia, for the insane, 1161-1163. Insane patients, naval; pay and expenses of, 788. prisoners of war and interned persons; admission to, 1417, 1418. Pensions of inmates, how paid, 1155. Secretary of the Interior charged with supervision of, 395 . Service pensions due inmates, paid to superintendent 789. ' SALARY: See Double salaries; Pay of civil eslablishment; Pay of Naval Establishment. Commutation of quarters held to be, 702. Pay of retired officer is, 911. SALES: See Printing and binding; Public property. Wages of enlisted men; commanding officer to dis- courage, 573. SALVAGE: Distribution of, awarded to naval vessels, 114.5, 1147. Government-owned vessels; amount collected; dispo- sition of, 1533. Naval appropriations not credited with value of, 1397. Naval vessels; decisions relating to, 775. to render service; compensation collected for, 1508. Permanent appropriation for pajTnent of, under Navy Department, 1106. Remimeration; public vessels excepted, 1372. SAMOA: Acknowledgment of deeds in, 1291, 1292. Census to be taken by governor, 1525. Civil employees, 782. pay while in transit, 1278. Governor: certificate as to acknowledgments in, 1291 1292. commissioned by President, 102. Military government of, 109. Secretary of the Interior, j urisdiction over, 395. Status of, and of naval governor, 1292. SAMPLES: Tobacco, inspected by board of naval officers before awarding contract, 1250. SAN DOMINGO: See Dominican Republic. SANITARIUM: Medical expenses of officer in, 904. SATURD.^Y: Afternoons; holiday in District of Columbia, 782. SAVINGS: Deposit of, by enlisted men. Marine Corps, 951, 1295. Deposit refunded; enlisted men rated as mates or ap- pointed as warrant officers, 524. Enlisted men. Navy; deposit of, 877, 1202. SCANDALOUS CONDUCT: Offenses not specifically provided for, charged as, 1028. Punishable by naval court-martial, 984, 998. SCHOOLS: See Educalional institutions; Naval Academy. 1683 INDEX. SCHOOLS— Continued. Aviation; instruction of Coast Guard at Navy schools, 1456. Detail or enlisted men to nautical school in Philip- pines, 1297. Instruction; for members and applicants, Naval Re- serve Force, 1448. Loan of naval equipment to military schools, 1277, 1359. of vessels and equipment to nautical schools, 1297, 1367, 1368. Nautical; naval officers detailed to, 1368. Retired officers detailed to, 1247, 1248. Scientific; detail of naval officers to, 1184, 1185. Summer schools for boys; Secretary of Na^•y may es- tablish; enrollment in reserve, 1546. SCIENTIFIC: Instruments; loan of, by Secretary of the Na\'y, 1201. Investigators; afforded facilities for studies and re- search in departments, etc., 1275. SCREW THREADS: Standardized; use by Navy; specifications in proposals, 1520. SEAL: Bonds, 481, 482. Commissions of naval officers to have Navy Depart- ment seal affixed, 1248. Definition of; impression without wax, 186. Executive departments; copies of records certified under, 426, 427. counterfeiting, etc., 1489. Fur seals; use of naval forces to protect, 1387. SEAMEN: See Enlisted men. Rating of ordinary seaman changed to, 1423. SEAMEN GUNNERS: Additional pay, enlisted men holding certificates as, 866. SEARCH AND SEIZURE: Private papers, use of, in evidence, 123. Protection against unreasonable, 117. SEA SERVICE: See Pay of Naval Establishment, Advances to naval officers ordered to and from, 1472. Definition of; decisions relating to, 878-883. Marine Corps, 954. pay, 948. Pay of naval officers, 1302. of officers and enlisted men. Marine Corps, 1408. Requirement for promotion, line of the Navy, 1434. Selection; requirement not applicable to staff corps, 1513. Staff officers who have been chiels of bureaus, 578. Volunteer officers credited with, on transfer to regular Na^T, 530. SEAT OF GOVERNMENT: See District of Columbia. Enemies' flags collected at, 381. Executive departments located at, 191. Navy Department established at, 331. SECOND LIEUTENANTS: Age and examination of candidates, 1270. Appointments, 922, 925. from dismissed midshipmen restricted, 1281. from graduates of Naval Academy, 1188, 1189, 1270, 1392. from graduates of Naval Academy; commence- ment of pay, 1221, 1222. from midshipmen or Army cadets failing to gradu- ate; restricted, 1462. SECOND LIEUTENANTS-Continued. Appointments, qualifications; ages, examinations; former officers; prol>ation, 1461, 1462. F.nsigns rank with, 602. Number of, Marine Corps, 1458. Precedence determined by competitive examination, 1462. SECRETARIES: Admiral and vice admiral allowed, 455. at sea; no civil appointment allowed, 1182. Admiral of the Na\'y, appointment and status of Sec- retary to, 527. Admiral; pay of secretary, 794, 805. Naval officers detailed as, 1182. Ranlc and allowances of, 455. Status of, 52.5. To commanders of squadrons; pay, 794, 805. Naval Academy; pay, 794, 805. vice admiral; pay, 794, 805. SECRETARY OF THE INTERIOR: Fuel for departments in District of Columbia; advance deliveries by, 1553. purchase and storage by, 1507. Hauling for Government in District of Columbia, 1553. Jurisdiction over Navy contracts, 397. Office created, 395. SECRETARY OF THE NAVY: See Assistants; Delegation of powers; Estimates; Heads of departments; Navy Department; Regulations; Re- ports. Absence, death, resignation or sickness; temporary performance of duties, 333, 1401. Accounting for expenditures from appropriation for obtaining information, 1417. Accounting officers to act imder direction of, 266, 268. jurisdiction with relation to, 236-240, 272, 273,828, 829, 903, 1315, 1527, 1528. Accounts, balances arising certified to, by accounting officers, 1224. Acting Secretary during temporary absence, 333, 1401. Acts for the President, 102, 342, 343, 344, 474, 500, 586, 642, 643, 787, 9-56, 957. records of naval examining boards and boards of naval surgeons, 1481, 1482. regulations, 787. Advertising for proposals for supplies and transporta- tion, nil. for suppUes; certain articles excepted, 1113, 1114. for tobacco, 1250. Allowances to naval prisoners fixed in discretion of 1311. Appointments, acting assistant surgeons, 527, 1184. acting chaplains, 1396. acting ensigns, 1435. acting pay clerks, 1406. acting warrant officers, 525. civiUan storekeepers on foreign stations, 533. civil establishment, 337. midshipmen, 745. nurses, female, 1303, 1304. of officers; can not delegate power to make, 533. pharmacists, 1262. Appropriations controlled and expended by direction of, 1104. Approval of accounts for traveling expenses, 237, 238, 1179, 1189. claims; effect of, 272. Armor plants; cost of product; itemized accounts to be kept by, 1419. Assistant Secretary; general provisions relating to, 333, 334. 1684 INDEX. SECRETARY OF THE NAVT— Continued. Assistant Secretary; to perform duties assigned by, 1217. Boards appointed by; examinations for assistant pay- master, 470. Boards of inquiry convened by; investigation of mid- shipmen, 1286, of survey to be convened by, 1477. to be ordered by, before publishing charts and hydrographic surveys, 1106, 12-37. Bonds required by, for property loaned to military schools, 1277. Chaplains: aimual report to, 503. Chief of Naval Operations performs duties under direction of, 1401. Chiefs of bureaus perform duties under authority of, 361. Civil employees, navy yards and stations; number and pay fixed by, 1312, 1313. Civil office held by, 333. Claims adjusted by; reports to Congress, 13.58, 1359, 1508, 1527, 1545. Clemency power in court-martial cases, 85, 669, 1309. Coast Guard duties performed by order of, 1091, 1456. Collision claims involving naval vessels; adjustment; report to Congress, 1358, 1359. Commissioner of Pensions; jurisdiction with relation to, 396, 397, 1155. Commissions of officers signed by, 102. Computations as to numbers of officers in grades. 1529. Condemnation proceedings instituted by, for acquiring timber, suppUes, etc., 1518. Contracts; advertising for proposals for suppUes and transportation, 1111. bids regarded as excessive may be rejected, 1114. conditions relating to quality of supplies pre- scribed by, 1115. foreign supplies; bids to be opened in presence of, 1114. made by, where bidder fails to furnish required bond, 1112, 1113. purchase of fuel, 1115. to be made by or under direction of, 1111. to cause officers maMng same to sign names at end, etc.. Ills, 1119. to furnish instructions and blank forms to officers making, 1119. Council of National Defense: membership in, 1465. Counsel for courts-martial can not be employed by, 1019, 1020. Courts; jurisdiction over; mandamus proceedings, 778. Courts-martial, action on, 1309. for hazing ordered on approval of, 1286, 1287. subject to review by, 1287. proceedings re\iewed by, 1042, 1287, 1309. Custodian of property, books and records, 352. Decision final as to character of man's discharge, 566. Deck-court records to be reviewed by, in special cases, 1309. Delegation of power to approve bonds, 487. Detail of officers to shore duty; public interest must require, 1191, 1218, 1219. Development of Navy petroleimi reserves and oil lands; leases; use of proceeds, 1545. Disbursements made by order of, 266. Discharge of enlisted men; rules to be prescribed by, 1381, 1382. Discretion; clothing outfits on first enlistment; law mandatory, 1203. duties involve, 344, 345. not reviewable, 237, 828, 829. SECRETARY OF THE NAVY— Continued. Dismissal of civiUaa instructor, Naval Academy, re- quires approval by, 1287. of midshipmen; duties relating to, 1286. Distribution of departmental business by, 357. Duties discretionary, 344, 345. flags of enemies collected by, 381. general pro\isions relating to, 342-352. of commandant. Marine Corps, may be performed by, 929. Emergency purchases of foreign war material, 1396. Estimates furnished to, by chiefs of bureaus, 385. submitted by, demands on balances of appropria- tions, 381. Examinations for appointment in Marine Corps, 1461. for promotion. Medical Corps, prescribed by, 1251. for promotion prescribed by; acting ensigns to lieutenant (junior grade), 1436. of machinists for promotion prescribed by, 1314. Form of honorable discharge prescribed by, 569. Furlough of officers, 583. General courts-martial; may be convened by, 1248, 1310. may empower officers to convene, 1442. General orders issued by; violating or refusing obedi- ence to, 985. provisions relating to, 332-333. Habeas corpus can not be issued to, 404. Hazing, rules to prevent approved by, 1281. Head of the Navy Department, 331. Hydrographic Office; duties performed under au- thority of, 387. publications: number of copies to be prescribed by, 1238. Hypothetical questions not decided by, 349, 350. Insane personnel committed to hospitals by, 788, 789. Judge Advocate General's duties performed under direction of, 1186, 11S7. Leases granted by, to lands other than oil, mineral or phosphate, 1419. Loan of naval equipment, etc., to Red Cross, 1394, 1395. Losses by disbursing officers; determination as to responsibility, 1527, 1528. Marine Corps; jurisdiction over, 956, 957. May aboUsh offices at nav^ yards; 533. May change regulations fixing relative rank or prece- dence of officers, 466. May not act for chief of bureau named in contract, 361. May perform duties of subordinates, 215, 351, 361. Medals of honor to enhsted men on approval of, 512. Member of Arlington Memorial Amphitheater Com- mission, 1559. of commission for care of State, War and Navy Building, 332. of Interdepartmental Social Hygiene Board, 1517, 1518. Midshipmen miay be given special course of study prescribed by, 1189. Naval Home: compensation of beneficiaries employed at, 1294. disposition of effects, deceased iimiates, 1395. of pensions due beneficiaries, 1395. Naval supply account prices to be approved by, 1557. Navy mail clerks selected by, 1306. Oaths; may empower officers to administer, 1240. Ocean mail vessels constructed subject to approval of, 1216. detail of naval officers for duty on, 1217. "Officer" held to include, 1040. Orders issued through chiefs of bureaus, 361. of chief of Naval Operations to have effect as orders of, 1418. 1685 INDEX. SECRETARY OF THE NAVY— Continued. (Irdors to officers for shore duty; 4. Loss of numbers, continuing punishment; remission of, 1052. officer's promotion pending; effect of, 652. Majority of votes determines, 1034. Midshipmen con\acted of brutal or cruel hazing, 1287. for hazing; punishments authorized, 1286, 1287. Mitigation of, 85. by Secretary of the Navy, 1309. Coast Guard personnel, 1455. deck courts, 1308. form of action, 1052. general courts-mai tial, 1051-1055. summary courts-martial, 1009. to dismissal, 441, 1010. Pardon of, 85. deck courts, 1308. President's power to mitigate, 1053, 1054. Prohibited punishments, 1034. Promulgation of, 1045. Reconsideration of action mitigating, 1051, 1052. Reduction of officer to another office, 988. of officer to enlisted rating, 988. confirmation by President, 1045. of warrant officer to enlisted man, 524. Remission of, 85. by Secretary of the Navy, 1309. Coast Guard personnel, 1455. deck courts, 1308. general courts-martial, 1051-1055. loss of pay; discharge of accused operates as, 567. summary court-martial, without commuting, 1009. Repeated offenses, 1003, 10O4, 1063. Reviewing authority; place of imprisonment desig- nated by, 1064. Revision of by court-martial, 1043, 1044. Single, for all offenses, 1063. Secretary of the Navy's power over, 1008, 1009. Secret, not to be divulged until approved by proper authority, 1019. Summary courts-martial, 1006, 1007, 1309. execution of, 1312. approval by reviewing authority, 1007-1009, 1442. Suspension from rank and grade, continuing punish- ment; remission of, 1052. midshipmen; President's action on, 1248. naval officer; undesirable punishment, 583. of officer's pay by court-martial, 1033. precedence of officer under, 668, 669. remission of unexecuted portion of, 669. SERVANTS: Unauthorized use of (Government laborers, 702. Use of enlisted men by naval officers, 829. SERVICE: See Length of service; Pay of naval Establishment; Sea service. Absence without leave; period of not credited, 588. Appropriations transferred between bureaus or de- partments in payment for, 579, 1409, 1536. Army and Navy, credited to naval officers, 1191. -Vrmy cadet, not credited to naval officers, 1390. Army, credited to enlisted men of Navy and Marine Corps for retirement, 1299. -Vrmy, Navy, Marine Corps, Coast Guard, PubUc Health Service and Coast and Geodetic Survey; credited for longevity pay, 1535. Civil employees, for retirement; computation of, 1538. Civil war; retirement of officers for, 968, 1266, 1282, 1293, 1312. Coast Guard and Revenue Cutter Service; naval per- sonnel credited with, for pay and retirement, 1550. Commandant's clerk, not mihtary service, 534. Computation of, in Naval Reser\'e Force, 1509. for retirement and longevity pay, 587-589, 1191, 1390, 1535, 1550. Constructive, credited to naval officers for pay piu:- poses, 821-823, 1268. credited to naval officers for precedence, 691-694, 1390. not credited for pay to officers appointed after March 4, 1913; 1390. Definition of "serve;" period of confinement not in- cluded, 589. Dental officers who have gained or lost numbers, 1421. EnUsted men credited with, for retirement, 1269, 1270, 1291, 1299. transferred to Naval Reserve Force; how computed, 1449. Incapacity incident to; retirement for, 603. Length of; computation, officers transferred to differ- ent branch of the service, 1249. Midshipman, not credited to Army officers, 1388. not credited to naval officers, 1390. Naval Reserve Force; computation of longevity for active duty pay, 1511. and Marine Corps Reserve; regular officers and en- listed men credited with, 1529, 1530. Pensions allowed disabled enhsted men for, 1154, 1155. pajrment to superintendent. Saint Ehzabeths Hos- pital, 789. Public Health Service credited with, in other organi- zations, 1533. Requirement lor promotion by selection, 1432, 1434. Sea; definition of; decisions relating to, 878-883. Time under arrest, in confinement, on bail, etc., 588, 589. Warrant officers. Navy and Marine Corps, credited with reserve service for retirement and longevity pay, 1529, 1530. SERVITUDE: Involuntary; military and naval enlistments are not, 136. SESSION LAWS: Navy Department supphed with, 1235. SET OFF: Against Government; right of officer to retain amount, 246. Court of Claims' jurisdiction, 1362. Jurisdiction of accounting officers, 244-246. Public moneys to be deposited without deduction, 1095, 1096. 1688 INDEX. SETTLE; Definition of, 233. SEWING aiACHINES: Exchange of, in part payment for new ones, 1474. SHELLS: Restrictions on purchase of, 1395, 1396. SHIP KEEPERS: Enlisted men detailed as, nautical school in Philip- pines, 1297, 1298. SHIPPING ARTICLES: What contained in, 555, 556. SHIPPING BOARD. Commandeering of vessels leased, chartered or pur- chased from, 1467. Detail of naval oflScers for duty with, 1466. Development of merchant marine for use as naval auxihary, 1554, 1555. Emergency Fleet Corpoi^tion; restriction on payment of lump-sum employees, 1491, 1492. transfer of employees to and from departments, 1491. Navigation laws and regulations; revision of, 1467. Operation of alien vessels seized, 1477. Procurement of vessels and construction and repair of, in na\-y yards, etc., 1466. Sale of timber lands, logs, etc., acquired for the Navy 1518. Transfer of docks, etc., to Navy Department, 1555. Transfer to, of naval vessels, 1467. SHIPS: See Vessels; Vessels of the Navy. SHIP'S BOOKS: Entries required to be made in, 995. SHIP'S COMPANY: Articles for the government of the Navy to be read to 996. Vessel lost; amenable to discipline until discharge, 996. SHIP'S HELPERS: Enlisted men, additional pay, 866. SHIP'S LOG: Punishments by commander of naval vessel to be entered in, 1002. SHIP'S STORES: Profits; charged on sales from, 13.59. jurisdiction of accounting oflicers, 233. not public money, 232. SHIP'S TAILORS: Enlisted men; additional pay, 866. SHIPWRECK: See Vessels of the Navy. Construed, 272. SHORE: Offenses committeed on, against inhabitants; punish- ment. Navy, 985. SHORE DUTY: See Details; Foreign shore duty; Officers of the Navy; Pay of Naval Establishment; Service. Beyond seas, definition of, 1275. pay of Marine Corps, 941, 948, 1275. pay of naval officers, 818-821, 1275, 1302. pay of naval officers under personnel act, 1267. Distinction between what constitutes sea service and shore duty, 878-883. Engineer officers and construction officers, 1401. In time of war or emergency; ehgibility for promotion by selection, 1434. Marine Corps, 955. Naval officers; pubUc interest must require and orders so state, 1191, 1218, 1219. Naval Reserve Force; restricted, 1528. Navy mail clerks, 1513, 1514. SHORE DUTY-Continued. Pay of officer detailed as assistant to Bureau of Medi- cine and Surgery, 466. officer in charge of Nautical Almanac, 391. officers under personnel act, 1267. superintendent. Naval Observatory, 390. warrant officers, 1472. Sea pay allowed commandant. Mare Island navy yard, 1177. allowed superintendent, Naval Academy, 1177. Supervisor, New York Harbor; naval officer allowed sea pay as, 1198, 1199. SHORE LIBERTY: Commanding officers to grant, 574. Deprivation of, by commanding officer, as punish- ment, 1002. On foreign station; deprivation of, by summary court- martial, 1006. SHORTEST USUALLY TRAVELED ROUTE: Mileage allowed for, 845. SICK: Separate compartment for, on naval vessels, 995. SICK LEAVE: See Leave of absence. SICKNESS: Absence from duty caused by; due to misconduct, 82.5, 1436. Chiefs of bureaus, duties of, 213, 214, 364, 466, 1222, 1224, 1201,1280,1284, 1418. Discharge for; preference in appointments to civil offices, 1065. Head of department, duties temporarily performed by another, 212, 214. Medical treatment; naval persoimel required to sub- mit to, 458. SIGNATURES: Abbreviation used by pubUc officer, 351. Acting chiefs of bureaus, 213. Assistant head of department, 194, 213. Forging or counterfeiting; claims against United States; punishment. Navy, 990. Heads of departments; what constitutes, 351. Mark included, in construing Criminal Code, 1355. President's confirmation of court-martial sentence, 1040-1042. President's required to commissions before seal an- nexed, 1248. Retired officers, 633. Rubber stamp used by public officer, 351. SILVER: Disbursements to be made in, 1100. Gifts to naval vessels; acceptance and care of, 1305. Transporting on naval vessel, 985. SINGULAR: Includes plural in Federal statutes, 18,5, 1355. SITES: Condemnation proceedings to obtain, 1199, 1490, 1491. Land not to be purchased without specific appropria- tion and specific law authorizing, 1116, 1117. Leased by Navy; improvements to become property of lessor, 1508. Naval hospitals; Secretary of the Navy may procure, 1159, 1160. Transferred to jurisdiction of Navy Department, 1457. SLAVES: Naval forces not to return fugitives from service or labor, 994. Seizure of vessels in slave trade, 1347, 1348. SLEEPING ON WATCH: Punishment for. Navy, 979. 1689 INDEX. SMALL ARiMS: Target practice; sale of ammunition, etc., to societies promotinK, 1516. SMALL-STORES FUND: Created for Navy, 1184. .Nii\ y, consolidated with clothinR fimd, 12ai. SMITIISOMAX INSTITUTION: Heads of departments to assist, in acquisitions for Zoological Park, 1204. SOCIAL HYGIENE BOARO: Creation of, etc., 1517, 1518. SOCIETIES: See Badges: Military societies; Uniforms. Membersliip fees and o.xpenses of public officers; re- strictions on payment of, ri71. .*^inall-arms target practice; societies organized to en- courage, 1516. SOLDIERS AND SAILORS: .See Civil estabtiishmcnl; Enlisted men. Honorably discharged from war with Germany; rein- statement in civil establishment, 1530. Preference for appointment and retention, civil estab- lishment, 338, 780, 1065, 1180, 1383, 1524, 1526, 1530. SOLICITING: Contributions for presents, etc., 10T3, 1334, 1335. SOLICITOR: See Naval Solicitor. Naval; duties assigned to Judge Advocate General, 1186, 1187. Navy Department; appointment made by Secretary of the Navy, 206. duties of, 321. investigation conducted by, 218. SOLICITOR GENERAL: Duties of, 282, 322. SOLITARY CONFINEMENT: Commanding officer may inflict as punishment, 1002. Summary coiu-t-raartial may adjudge, 1006. SOUTH AMERICAN REPUBLICS: Detail of naval officers to, in connection with United States commerce, 576. of naval officers to; acceptance of offices under; dual compensation, 1556. Naval officers appointed to office' in Brazil; leave of absence, etc., 1399. SPANISH: Professor of. Naval Academy, 771. SPECIAL ACTS: See Statutes. SPECIAUSTS: Marine Corps, enlisted men, pay, 942, 946. SPECIAL MECHANIC: Ratings established in Navy, 1495. SPECIFICATIONS : See Charges and specifications; Contracts. SPEEDY TRIAL: Coiut-martial to sit from day to day, Simdays ex- cepted, until sentence, 1029. Right of accused, 129, 130. SPIES: Punishment by naval court-martial, 981. SPIRITS: DistiUed; admitted on naval vessels for medical pur- poses only, 989. SPONGES: Employment of naval forces to enforce law relating to, 1289, 1290. SQUADRONS: Commanding officers; allowed rank of flag officer, 576, 6G0. may convene general courts-martial, 1442. SQUADRONS— Continued . Foreign; stores furnished to, 579. Medical stores; procurement of, 466. Retired officers; command in lime of war, 659. STAFF BUREAUS: Navy Department, 378, 672. STAFF OFFICERS: See Chaplains; Civil engineers; Construction Corps; Dental Corps; Marine Corps: Medical Corps; Officers of the Navy; Professors of matlicmaiics; Supply Corps. Additional numbers excluded from computations, 1429. officers permanently commissioned with rank of rear admiral, 1429. Advancement in rank, 680-685. above lieutenant commander, 1513. below lieutenant commander, 1426. examinations, 1473, 1481, 1482. without change of grade, 682, 683. Appointment from graduates of Naval Academy, 765- 768, 1392. Chiefs of bureaus; eligibility for appointment, 362, 378. Civil engineers held to be, 685. Command; rank not to confer, 702, 1265. Communicating directly with commanding officer, 670, Distribution in grades, 1427. Examinations for advancement in rank, 1473, 1481, 1482. not required for promotion in grade, 1481, 1482. Line officers detailed to duty under, 1359. Marine Corps, 1460, 1461. organization; appointment, details, etc., 1460, 1461. rank of, 929, 1460. relation to the line, 921, 922. Midshipmen appointed as, 765-768, 1392. Military command, rank not to confer right to exer- cise, 702, 1265. line officers detailed to duty under, 1359. Military duties not compatible with grade of, 507. Number, 1425, 1549. in any corps, grade or rank; computations; dispo- sition effractions, 1428, 1429. in any grade or rank; computations; additional numbers excluded, 1429. not to be reduced, 1429. permanent strength not reduced by act of June 4, 1920; 1549. Physical examination for advancement, 708. Precedence; communicate directly with commanding officers, 670. date of commission, 1429. with line officers, 689-695. in processions, courts-martial, etc., 704. Promotion by selection, 1513. by selection; time for convening boards, 1529. by seniority, 680, 681. Quarters, 695. Rank, advancement in, 680-685. advancement above lieutenant commander, 1513. advancement below lieutenant commander, 1426. general provisions relating to, 673-685. not to confer right to exercise military commaiid, 702, 1265. retired for age or length of service, 685. for causes incident to the service, 687. Rear admirals; distribution between upper and lower half, 1428. not a grade, 682. upper and lower half; pay and allowances, 1429. Relative rank; changed to actual rank, 1265. with Army officers, 667. 1690 INDEX. STAFF OFFICERS— Continued. Relative rank with Marine officers, 667. Retirement; age or length of service, 6cS5. with rank of rear admiral, 672, 675. Titles, 671, 6S3. not changed by rank, 1265. STAMP: Facsimile signature of public ofBcer, 351. STANDARDS: See Flags. Screw threads; used by Navy; specifications in pro- posals, 1520. STATE DEPARTMENT: Foreign decorations, presents, etc., tendered to officers through, 1187. STATE INSTITUTIONS: Detail of naval officers to military academies, etc., 435. STATES: Arrest of Federal officers by, 51. Cooperation with United States in protection of naval forces against disease, 1517. Domestic violence; use of naval vessel, 114. Elections; naval officers not to interfere with, 1079. Foreign, acceptance of present from, 75. Health laws, jurisdiction, 49, 50. reports not furnished to, in naval cases, 461. Insurrection against; emploj'ment of Federal forces to suppress, 1169. Interference with Federal instnimentaUties, 47. with Federal property, 774. Jurisdiction of oflenses on naval vessels, 67. of perjury committed in Federal court, 53. over militia, 71. over United States property, 289-292. Lands leased from, by the Navy; improvements to become property of lessor, 1508. purchased in , for use of United States, 282. Laws and records evidence in court, 429, 430. Laws of, appUcable in Federal reservations; criminal code, 1351. Limitation upon exemption of Federal agencies from control by, 51. Loan of naval equipment to military schools on gov- ernor's appUcation, 1277. Naval forces employed to suppress insurrection against, 1169. Naval vessel, use of, to maintain law, 114. Notaries public of, authorized to administer oaths and take acknowledgments, 1072. may administer oath of allegiance, 1093. Offenses violating law of two Governments, 120. Pilotage; discrimination against national vessels for- bidden, 1130. Penitentiaries and prisons may be used by naval authorities, 983, 984. Process; service on persons in naval or civil service, 292, 293. Taxation of Federal instnimentaUties, 48. STATE, WAR AND NAVY BUILDING: See Navy building. Apportionment of space in, 331. Superintendent of; naval officer. Civil Engineer Corps, 532. retired officer ineligible, 643. STATION: Absence from, without leave or after expiration of leave, 985. Change of; transportation furnished, 1535, 1536. Exchange of by officers; mileage, 844. Marine Corps headquarters held to be, 895. Permanent; defined, 1536. STATIONERY: Estimates and appropriations for. Navy, 1102. Printed in course of manufacture; excepted from printing and binding law, 12%. STATUTES: Appropriation acts; title of, 187. Bill of attainder, 73. Classes of, 7. Constitutionality of, 30. Attorney General's opinion, 321. promotion by seniority, 647, 648, 681. Enforcement in foreign countries, 70. Errors in; effect of, 287. Ex post facto, 74. Form of, 1S7. Interpretation of, 9-24. appropriations, 1297. "authorized ' " held mandatory, 1203. clerks construed, 206. clerks, includes chiefs of divisions, 203. company or association, defined, 186. contracts not authorized unless language of law specific, 1297. county defined, 185. death, resignation, absence and sickness, con- strued, 214, 215. definitions of particular words, 185, 186. department defined, 191. eflect of regulations, 787. errors in; effect of, 287. general principles, 9-24. "Insane person"' and "lunatic" defined, 185. masculine applies to females, 185, 1355. "oath" includes affirmation. officer, includes persons authorized to perform duties of office, 1S5. "persons" applies to partnerships and corpora- tions, 185, 1355. plural includes singular, 185, 1355. present tense includes future, 1355. seal includes impression without wax, 186. signature or subscription includes a mark, 1355. singular includes plural, 185, 1355. vehicle defined, 185. vessel defined, 185. whether Marine Corps included in Navy laws, 962, 963, 967, 968. whoever, includes corporation, 1355. writing includes printing and tj-pewrittng, 1355. Navy; whether applicable to Marine Corps, 962, 963, 907, 968. Penal ; discharge for moral un fitness held not to be, 628. Repeal, effect of on former act, 187. effect of on penalties, prosecutions, etc. 187. Revised Statutes, explanation of, 2. Special act, designating appointee, 93, 532. for reappointment of former officer, 830. for retirement of officer, 592, 911. restoring officer to former rank, 733. ST.4TUTES .\T L.\RGE: Definitions, particular words in, 185, 186. Explanation of, 5. Navy Department suppUed with, 1235. STATUTES OF LIMIT.4TIONS: Claims against Government; checks outstanding more than three years, 277. examined by accounting officers, 1182. Courts of inquiry not bound by, 1056. Desertion in time of peace, 1060-1062. in time of war, 1057. 54641°— 22- -107 1691 INDEX. STATITKS OF LIMITATIONS— Continued . liciicral offenses: appluable to court-martial or other punishments, 1057-1000. Jurisdiction of court-martial after discharge of accused from service, KWO. Period during which accused was in custody of civil authorities, 1059. Suits on bonds of delinquent oflRcers, 1199. Waiver of; decisions relating to, 1057, 1058, 1062. STKAM BOILERS: Purchase of, for Navy, 1182, 1183. STEAM ENGINEERING: See liurcaus; Chiefs of bureaus.' Name of bureau changed to Engineering, 1.548. STE.4M ENGINES: Estimates and appropriations for repairs and attend- ance, navy j'ards, 1103. STEAM VESSELS: llcgulationof, 1135, 1136. STEEL: Domestic manufacture to be used in naval vessels, 1195. STEERAGE OFFICERS: Definition of, 704. STEPCHILDREN: Citizenship of, 139. STOLEN GOODS: Punishment for receiving, etc., 1350, 1351. STONE: Use of by Navy, from national forests, 1409. STOREKEEPERS : Appointment and number of, 531. Ci^^lians; foreign stations, 533. required to give bond, 533. Clerks of. Secretary of the Navy may abolish offices, 533. Estimates and appropriations for expenses of, Navy, 1103. Foreign stations; naval officers detailed for duty as, .579. naval officers to give bond, 579. Naval Academy, 770, 771. property returns to be rendered by, 1304. Pay of, on foreign stations, 846, 847. Rating established in the artificer branch, 1423. STORES: See Contracts: Public property. Annual report of, used in construction, repair and equipment of vessels, 381. Dealing in, for private benefit; punishment. Navy, 989. Foreign squadrons; care of, 579. Foreign stations; estimates and appropriations for transportation. Navy, 1103. Marine Corps; sale to naval and civilian personnel, 1391, 1464. Medical; distilled spirits on naval vessels, 989. procurement of, for fleets and squadrons, 466. Midshipmen's; profits are public money, 232. Misappropriation of; punishment, 1325. Naval Supply Account to govern purchase and issue of, etc., 1366, 1367. Naval vessels; inspection and preservation of provi- sions, 995. Navy and Marine Corps; sale to Coast Guard and Public Health Service personnel, 1533. .sale to discharged persons under Public Health treatment, 1554. Procurement of, by one department or bureau for another; transfer of appropriations, 1409, 1.536. general provisions relating to, 352, 353, 354. Profit on sales from ships' stores, 1359. Purchase of. Navy, contrary to law, 1324, 1325. of Navy, from small stores fimd, 1184. Purchase, preservation and disposition of; regula- tions governing, 787, 78S. STORES— Continued . Sale of. Army, Navy and Marine Corps, 1465. to naval personnel and others, 53:<, 1313, 1314, 1391, 1404, 1533, 1554. Subsistence; unlawfully selling, stealing, etc., 990. Unauthorized sale of; punishment, 1325. Value of , charged to naval supply account fimd: issues or sales credited to, 15.57. STRAGGLERS: Arrest of, 118. STRICTISSIMI JURIS: Sureties on bonds; liability of, 491. STRIKING: Flag to enemy, punishment for, in Navy, 980. Other persons in Navy, 9S4. Superior officer; punishment for. Navy, 970. STUDENTS: Afforded facilities for study and research in executive departments, etc., 1275. SUB3IARINES: Enlisted men, additional pay for service on, 865, 86(). SUBORDINATES: Maltreatment or oppression of; punishment, 984, 1351. SUBORDINATION: Commanding officers to show example of, 97s, 979. SUBORNATION OF PERJURY: Naval courts-martial; prosecutions, 431. Punishment, 1335. SUBPOENAS: See^ccMSfd; Courts-martial; Process: Witvcsscs. Accused entitled to process for obtaining witnesses, 129, 132, r.iZ. Application lor, in departmental cases; form of, 219, 220. Commission to take testimony, requiring production of records, 423. Form of, 425. Heads of departments; assistants subpoenaed to testify before commission, 422. whether required to obey, 79, 348, 424. Member of Congress subject to, 33. President not required to obey, 77. Witnesses required to appear before departments in pending claims, 219. I to make depositions for use in Federal courts, 421. SUBSCRIPTIONS: Newspapers and periodicals; payments in advance, 1401, 1408, 1409. SUBSISTENCE: See Contracts: Public property; Rations; Stores. Absent from vessel, 891, 896. EnUsted men, 896, 897, 954. Naval officers detailed to coast and Geodetic Survey, 1151, 1215. Purchase of, in excess otappropriations, 1116, 12SS. Travel outside District of Columbia, 1394, i:59S, 1399. SUFFRAGE: Naval personnel's right to vote not restricted by crimi- nal code, 1321. SUICIDE: Line of duty, questions relating to, 612, 614, 615. SUITS: See Bonds; Contracts; Court of Claims; Damages; Dis- bursir}g officers. Public moneys withheld; recovery of, 1097, 1098. SUMMARY COURTS: Precedence of line and staff officers on, 704. SUMMARY COURTS-MARTIAL: See Courts-martial. SUMMER SCHOOLS: Secretary of the Navy may establish for boys: enroU- ment in Naval Reserve Force, 1546. 1692 INDEX. SUXBATS: Closing of departments on, 201. Divine services to be conducted on vessels and at naval stations, 979. Excluded from leave of absence, employees in depart- ments, 1263. General court-martial not required to sit on, 1029. Holidays falling on, 782. Hours of labor, law not applicable to, 1220, 1221. Midshipmen not to pursue studies on, 770. SUPERINTEXDEXT: See Naval Academy. Naval Academy; duties respecting dismissal of mid- shipmen, 1286. pay, 815, 1177. removal of, for neglecting instructions to midship- men, 1195. rules to prevent hazing, 1281. Naval Observatory; allowed shore duty pay of his grade, 390. line officer: rank, 1276, 1277. Nurse Corps, female, 1303. Rope walks, at na\'y yards, 779-780. SUPEUIXTEXDEXT OF DOCU3IEXTS: SeePrinling and binding. SUPERIOR OFFICER: See A Hides for the Government of the Navy; Contribu- tions; Presents. Definition of, 980, 986, 1073. Petty officers entitled to obedience from inferiors, 52.5. Senior in rank construed, 930. SUPERVISORY BO.^RDS: Examinations for promotion, 724. SUPPLIES: See Contracts; Hospital supplies; Medical supplies; Naval supply account; Public property; Stores. Accumulation of, beyond needs of current year, 387, 1113, 1473. 1482. Appropriations transferred for expenditure by bureau or department procuring, 1409, 15.36. Army; furnished naval and marine detachments, 433. Dealing in, for private benefit; punishment, 989. Executive departments, procurement of, 1358. General supply committee; duties, etc., 1358. Interchange of, between departments; payment for 1409, 1.526, 1528, 1536. Medical stores, procurement of, 466. Naval; purchase and issue of, 1216. Naval supply account to govern purchase and issue of stores, etc., 1366, 1367. Naval vessels; inspection and preservation of provis- ions for, 995. Navy; accounts kept, reports to Congress; transfer be- tween bureaus, etc., 1203. aimual report of proposals and contracts, 381. transportation in American vessels, 128:5. Procurement of, in time of war, 1113, 1413, 1475, 1476. Purchase of, in excess of needs for current year, 387, 1113, 1473, 1482. Purchase, preser\'ation and disposition of; regulations governing, 787, 788. Regulations governing; President to make, 787, 788. Sale of Army, Navy and Marine Corps subsistence, 1465. Navy and Marine Corps, to Coast Guard personnel, 1533. i^&vy and Marine Corps to Public Health Ser\'ice personnel, 1533. subsistence stores to naval personnel and others, 5.33, 1313, 1314, 1391, 1464, 1.5:J3, 1554. Transfer of, between Army and Navy, 1528. SUPPLIES AND ACCOUNTS: See Bureaus; Chiefs of bureaus; Paymaster general. Name of bureau changed to, 1218. SUPPLY ACCOUNT: See Naval supply account. SUPPLY CORPS: See Accounts; Accounting officers; Bonds; Disbursing officers; Officers of the Navy; Public moneys; Staff officers. Accounts of officers rendered direct to accounting officers, 1097. unchanged for three years, 279. Acting pajTnasters; appointment, 472. Advancement in rank, 1426, 1513. Advances of public money by; order of commanding officer, 498. Appointments in, 469. of assistant paymasters from pay clerks and chief pay clerks, 1407. of officer as chief of bureau, 379. quaUflcations for assistant paymasters, 470. Assignment of wages attested by officer of, 892. Bonds, 474-496. amount of; may be increased by President, 1098. effect of new appointment, 496. not affected by new commissions, 681. renewal of, 496. Checks outstanding more than three years, 276-278. Clerks allowed officers of, 496, 497. not part of, 470. Command; relative rank not to conf e r right of, 702, 1265 Defined; only commissioned officers included, 470. Delinquent officers; proceedings against, 427, 428. Disbursing officer on foreign station, appointment of, 788. Distribution of officers in grades, 1427. Duties of, 468. disbursing officers, 1098. regulations prescribing, 786. Examinations for promotion, 471, 1473, 1481, 1482. Fleet pajTuaster: appointment of, 474. Generalinspectorof; duties, 1304. General provisions relating to, 466-498. Loans by officers of, prohibited, 497. Name changed from Pay Corps to, 1530. Naval Academy; storekeeper detailed from, 770. Number of officers authorized, 466, 467, 1425. Officers; cjommanding officer not required to perform duties of, 574. Officers' records lost with vessels sunk or captured, 268. relieved from responsibility by Secretary of the Navy, 1527, 1528. responsibility; insurer of funds, 487. relieved from, 488, 1362, 1363, 1527, 1528. Organization of, 466. Pay Corps changed to, 1530. Paymaster, passed assistant paymaster or assistant paymaster, defined, 497. defined; means officer of Supply Corps, 380, 471. Promotions, 471, 1426, 1473, 1481, 1482, 1513. - effect on bond, 496. Rank of officers in, 676-677, 1427. rear admiral authorized in, 676, 677. Report of checks outstanding more than three years, 279. Responsibility of officers; disbursement by order of superior, 266. vessels wrecked or captured, 266. SUPRE.>IE COURT: Appeals to, from Court of Claims, 1365. Attorney General and subordinates to argue cases, 322. 1693 INDEX. SUPREME COUKT— Continued. Department of Justice to conduct proceedings in, 323. Reports and digests: distribution of, 1365. SURETIES: See Bondf. Bonds, 4S4-4S6. inarrie