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WAL: I) EPARTMENT
DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, CERTAIN
DECISIONS OF THE COMPTROLLER OF THE TREASURY AND THE COURTS, AND CERTAIN OPINIONS OF THE ATTORNEY GENERAL.
JULY 1, 1912, TO APRIL 1, 1917.
WAR DEPARTMENT, No. 12.
WASHINGTON, August 8, 1912. The following digest of opinions and decisions rendered by the Judge Advocate General, the Comptroller of the Treasury, the Attorney General, and the courts is published for the information of the service in general.
It is intended to embrace all important opinions rendered by the Judge Advocate General from January 31, 1912, to which date, inclusive, the latest published Digest of said opinions extends, to June 30, 1912, inclusive; but it has been deemed proper to publish some of earlier date which could not be included in the General Digest or the importance of which seemed to justify further publication.
The other opinions and decisions which have been digested and which are deemed of special importance to the service cover praetically the same period, but for obvious reasons embrace many that are of date prior to the publication of the last Digest and could not be noted therein.
It is the purpose to make this and similar bulletins issued at stated times the basis of supplements to the published Digest and in this manner to keep the same up to date as far as practicable.
(1931376, A. G. 0.1 BY ORDER OF THE SECRETARY OF War:
Major General, Chief of Staff. OFFICIAL: HENRY P. McCAIN,
OPINIONS OF THE JUDGE ADVOCATE GENERAL. ARMY: Retiring board; action of President on report of.
The President may not modify the finding of a retiring board. He may approve or disapprove the finding, but, subject to his right
to return it to the board for recommendation, beyond this he may not go. If the President approve the finding, the law indicates what shall or may be done. (See secs. 1249–1252, Rev. Stat.) If he disapprove, the proceedings and finding of the board are nullified.
(C. 29449, Feb. 17, 1912.)
ARTICLES OF WAR: Discharge by department commander under fourth
Article of War. Under the fourth Article of War a department commander may order the discharge of an enlisted man whose term of service has not yet expired, but paragraph 139, Army Regulations, 1910, serves to direct that he shall not exercise this right which the law gives him. Held, that the regulation is lawful, as it does not seek to controvert a statute, but merely to regulate the conditions under which the power granted by the statute may be exercised. It follows that should a department commander order the discharge of one of his men before the expiration of his term of enlistment the discharge would be entirely legal, but the officer ordering it would have acted in disobedience of a regulation.
(C. 23259, Apr. 12, 1912. See also G. 0. 174, W. D., 1909.)
CIVIL AUTHORITIES: Surrendering soldier to; Fifty-ninth Article of
War. The terms of this article, which provides for the delivery to the civil authorities of any officer or soldier accused of a crime or offense punishable by the laws of the land, have never been regarded as modifying or affecting the operation of the rule of comity which prevails wherever two independent criminal courts have jurisdiction of the same person or case, the rule being that the authority whose jurisdiction first attaches, by reason of process retains jurisdiction until its claim has been completely satisfied. (C. 23264, May 27, 1909.) Under the above rule, where a soldier was sentenced to dishonorable discharge with confinement, and while serving confinement escaped and reenlisted in the military service under an assumed name and was again arrested and, his identity having been discovered, was placed in arrest to serve out his sentence, and the civil authorities presented a warrant for his arrest for a crime committed after his escape. Ileld, that the soldier should not be surrendered.
So also where before his enlistment a soldier had committed a crime for which he had been sentenced to the penitentiary, and while out of the penitentiary on a conditional pardon left the State in violation of its terms and enlisted in the military service, and was dishonorably discharged therefrom pursuant to the sentence of a general court-martial. Held, that under the above rule of comity he should not be surrendered to the civil authorities. (C. 28963, Nov. 11, 1911.)
(C. 23264, May 24, 1912.)
CIVILIAN EMPLOYEES: Civil service; removal of.
So long as a civil-service employee is fit for service and is performing his duty efficiently within the meaning of rules 5 and 12, Civil Service Regulations of February, 1912, he can not be removed from office on the ground that he is subject to a disability which would increase the possibility of an accident for which the United States would be liable under the act of May 30, 1908 (35 Stat., 556).
(C. 23069, Mar. 27, 1912.)
CLAIMS: Assignment of, section 3477, Revised Statutes.
The Government had a contract with the Helena Waterworks Co. whereby the latter agreed to supply the Army post near the city of Helena, Mont., with water and to renew the agreement annually within a certain stated period. In a suit in the Federal court the company's affairs were placed in the hands of a receiver, and that official, under the order of the court, sold the property of the company, including a claim against the United States for water furnished, to the Old Colony Trust Co. Held, that payment of the accrued claim for water furnished by the said company to the United States should be made to the assignee, the Old Colony Trust Co., as the transfer of the claim was in the nature of an involuntary assignment or transfer by operation of law and not in violation of section 3477, Revised Statutes, forbidding the transfer of claims against the United States.
(C. 23394, Mar. 30, 1912.)
CLAIMS: Claim for cattle killed where troops had removed a fence on
leased land. The United States, having leased land for maneuver purposes, later vacated the premises, the landlord accepting the return of the same in the condition in which the troops left them, and receiving compensation for certain assessed damage, including that to fences. Two days after the premises had been vacated by the United States three head of cattle strayed therefrom onto the railroad and were killed. The landlord who owned the cattle advanced a claim against the Government for the value of the same, based on the allegation that the cattle had been killed because a portion of a fence had been removed by the troops. Held, that the claim was inadmissible, as the damage accrued after the Government had relinquished the premises, and further because the landlord having accepted settleinent for damage to his fences had by so doing accepted responsibility for them in the condition in which they were left.
(C. 23172, May 1, 1912.)
CONTRACTOR: Delays by; exclusion from future bidding.
Where a contractor completed its contract, after unjustifiable delay and attempts to evade the contract requirements, on the recommendation that the contractor be debarred from further work, under G. O. 167, War Department, October 10, 1905. Ileld, that there was not