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OPINIONS OF THE JUDGE ADVOCATE GENERAL.

ACTING DENTAL SURGEONS: Not officers of the Army.

The question was presented as to whether an acting dental surgeon is an officer of the Army, within the meaning of the Act of March 3, 1885 (23 Stat., 350), authorizing the reimbursement of officers and enlisted men for the value of private property lost or destroyed in the military service. Acting dental surgeons occupy the same official status as contract dental surgeons (36 Stat., 1054), and contract dental surgeons have the same official status as contract surgeons (31 Stat. 752).

Held, following previous rulings of this office in respect to contract surgeons (Dig. Op. J. A. G. 1912, p. 97), that acting dental surgeons are not officers of the Army, within the meaning of the Act of March 3, 1885; that they form no part of the military establishment, but are merely civilians under contract to render personal service.

(18-461, J. A. G., Jan. 11, 1915.)

CIVILIANS: Expenses for treatment of, in Government hospital.

A transport surgeon at San Francisco, Cal., after rejecting, on October 1, 1914, a temporary employee as physically unfit for the transport service and therefore ineligible to sign the ship's articles, and after the latter's employment of about two weeks as water tender on the transport had ceased, gave him a letter, dated October 5, 1914, to the Letterman General Hospital, stating that "bearer . . . is an employee of the transport service, who desires treatment for hernia..." Subsequently a claim was presented to the Medical Department on behalf of the hospital fund for reimbursement of $10.40 for the patient's subsistence while under treatment at the hospital from October 6 to 31.

Held, that the patient having ceased to be an employee of the transport service before his admission to the hospital and the disability for which he was treated having antedated his service, there was no provision of law or regulation authorizing the payment of the said expenses from public funds.. Held further, that the hospital fund was entitled to reimbursement and that as the transport surgeon seemed to be responsible for erroneously causing the patient's admission into the hospital as an employee of the transport service, he should be held liable for the payment of the claim. (94-120, J. A. G., Jan. 12, 1915.)

CONTRACTS: Failure to accept bid within stipulated time limit; liability of guarantors.

Bids were invited and opened July 16, 1914, for the construction of 315 refrigerators. The bids were accompanied

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by guaranties to keep the bids open for acceptance for sixty days, and in default of the bidder to enter into contract in event of the acceptance of his bid within the sixty day period the guarantors were bound to pay to the United States the difference in cost, if any, in case of purchases elsewhere. The award was made, but not within the sixty-day period, and subsequently the successful bidder was adjudged a bankrupt and became unable to carry out the agreement. Held, that the failure to accept the bid within the sixtyday period absolved the guarantors from all liability. Held, further, that there was no legal objection either to readvertising for new bids or to entering into a contract with the next lowest bidder if the latter were willing.

(76-240, J. A. G., Jan. 15, 1915.)

CONTRACTS: Liability of guarantors for failure of successful bidder to enter into and perform contract.

A bid for furnishing horses, dated November 2, 1914, accompanied by a guaranty to enter into a contract, as required, within five days after notice of acceptance, was accepted and contract and bond were sent to the bidder on November 20, 1914, for execution, which he failed or refused to accomplish. He proceeded, however, to deliver horses for inspection, and up to January 18, 1915, when the time limit for furnishing horses expired, he had produced about ninety animals, out of which number only nine were found acceptable. The bidder asked to be relieved from his obligation.

Held, that the condition of the guaranty was broken by the failure of the bidder to enter into contract, as required, "within five days after said notice of acceptance," and that his guarantors were bound, to the extent of their undertaking under the terms of the guaranty, to pay to the United States the difference, if any, in money between the amount of the bidder's p.oposal and the cost to the United States of the horses purchased elsewhere.

(76-600, J. A. G., Jan. 23, 1915.)

CONTRACTS: Failure of subject matter of contract due to act of God.

A contract for furnishing hay at a post in Texas called for choice prairie feeding hay, the highest of the locality. Owing to a severe drought, followed by heavy rains and floods, the quality of the Texas crop of prairie hay was very poor, but the quartermaster accepted deliveries of the inferior hay, described as "a poor grade of prairie grass, overcured. lifeless," and containing "little nutriment," paying therefor the contract price, on the ground that there was no better hay to be had in the open market.

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Held, that the contractor was not entitled to substitute an inferior quality of hay for the superior article called for by the contract; that if there was a failure of the subject matter of the contract, due to an act of God, he was entitled to have the contract canceled without liability to either party, and that if conditions required the purchase of inferior hay, either because a better quality could not be procured or because the emergency did not permit of the necessary delay to procure it, the inferior article should have been purchased at the market price. Held further, that the opinion of this office of August 31, 1913 (W. D. Bul. No. 29, 1913, p. 7), upon which the quartermaster relied, was misconstrued by him.

(76-700, J. A. G., Jan. 9, 1915.)

COURTS-MARTIAL: Publication of sentence.

A general prisoner was received at Fort Leavenworth, Kans., September 5, 1914, under sentence of confinement at hard labor for six months. A typewritten copy of the general court-martial order publishing the prisoner's sentence, dated August 14, 1914, accompanied the prisoner, under which order the term of confinement, with reduction for good conduct time, would expire January 12, 1915. About two months later a printed copy of the general court-martial order, dated September 21, 1914, publishing the same sentence was received at the prison, under which the prisoner's sentence would expire not earlier than February 23, 1915. The latter order contained the printed notation: "This order supersedes typewritten order publishing this case."

Held, that the first order legally completed the action of the reviewing authority, and that the subsequent order was null and void.

(30-540, J. A. G., Jan. 9, 1915.)

EXTRADITION: Transfer of enlisted man to another State for prosecution by civil authorities.

Request was made that an enlisted man serving in Delaware be transferred into the jurisdiction of New York with a view to having him indicted for abandoning his wife. Held, that there is no provision of law for the transportation, at the expense of the United States, to the place where he is wanted by the civil authorities, of a soldier charged with an offense, but that a soldier is, in respect of extradition process, in the same status as though he were in civil life.

(74-111.3, J. A. G., Jan. 26, 1915.)

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HEAT AND LIGHT: Noncommissioned officer on temporary duty in the field not entitled to fuel allowance at his permanent station.

A regimental noncommissioned staff officer, on temporary duty with his regiment at Texas City, Tex., and entitled to one room as quarters, requested that his allowance of fuel be issued to his family at his permanent station. The Act of March 2, 1907 (34 Stat., 1167), provides for the allowance of heat and light for the authorized allowance of quarters for officers and enlisted men.

Held, that there is no statutory authority for an enlisted man to retain quarters at his permanent station while on temporary duty in the field, similar to that provided for officers by the Act of February 27, 1893 (27 Stat., 480), and that, therefore, the noncommissioned officer was entitled to his fuel allowance only at his place of service, where only he was entitled to quarters.

(72-411, J. A. G., Jan. 14, 1915.)

HEAT AND LIGHT: Pay clerks.

The question was presented whether a pay clerk, duly assigned to and occupying public quarters at a military post, is entitled to heat and light at public expense under the Act of March 2, 1907 (34 Stat., 1167), which provides for the furnishing of heat and light actually necessary for the authorized allowance of quarters for officers and enlisted men.

Held, that the pay and allowances of pay clerks of the Army are by statute (Act of Mar. 3, 1911, 36 Stat., 1044; and Act of June 24, 1910, 36 Stat., 606) made the same as paymasters' clerks and warrant officers of the Navy; that by the Act of March 3, 1901 (31 Stat., 1107), and section 1616, Revised Statutes, the latter are given the same allowances of quarters as are provided for a 2d lieutenant of the Army, but that no statutory provision is made for furnishing heat and light for their quarters at public expense. (72-310.1, J. A. G., Jan. 20, 1915.)

PRIVATE BUSINESS: Officers engaging in.

A typewriter company inquired whether it was within the province of captains, lieutenants, sergeants, etc., to sell typewriters to their "fellow officers" on commission. Held, that such a practice would not receive the favorable indorsement of the War Department.

(6-127, J. A. G., Jan. 18, 1915.)

QUARTERS: Officer in command of disciplinary com. pany, military prison.

By the Act of March 2, 1901 (31 Stat.. 901), it is provided that the Secretary of War may determine what shall constitute travel and duty without troops within the meaning of

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the laws governing the payment of mileage and commutation of quarters to officers of the Army. Under authority of this statute, the Secretary of War prescribed Paragraph 1300. Army Regulations, 1913, which provides, inter alia, that officers on duty at places where public quarters are not furnished, "but where enlisted men are on duty only as guards, orderlies, clerks, and messengers," are regarded as being on duty without troops.

An officer was placed in command of the disciplinary company, in addition to other duties, at the Atlantic Branch of the United States Military Prison, Fort Jay, N. Y., said company consisting of about 80 men sentenced to dishonorable discharge. In addition there were 20 enlisted men performing the duties of instructors and overseers of the prisoners.

Held, that none of the prisoners was serving the United States under an enlistment contract, but all were serving confinement under sentence and were, therefore, not troops; that the 20 enlisted men performed some guard duty, but were mainly employed as instructors and overseers; that they were not "on duty only as guards," nor employed as orderlies, clerks or messengers, and that the officer was not, in the sense of the regulation, on duty without troops. (72-333, J. A. G., Jan. 12, 1915.)

TRAVEL ALLOWANCES: Discharged soldiers; transportation in kind furnished and not used.

An enlisted man, honorably discharged at Fort McDowell, Cal., from an enlistment effected in the Philippine Islands, was, upon his request, given a Government transportation request for transportation in kind from San Francisco, Cal., to Baltimore, Md., in accordance with the Act of August 24, 1912 (37 Stat. 576), which provides that an honorably discharged soldier shall be entitled to transportation in kind and subsistence from the place of his discharge to the place of his enlistment, or to such other place within the continental limits of the United States as he may select, to which the distance is no greater than from the place of discharge to the place of enlistment. The act further provides that in lieu of such transportation and subsistence, the soldier may elect to receive two cents a mile except for sea travel. The soldier changed his mind and reenlisted at Fort McDowell, returning the transportation request to the quartermaster. He then inquired whether he was not entitled to receive in money, from the Government, the amount that the transportation to Baltimore would have cost the Governnient had he used it.

Held, that the soldier was only entitled to transportation in kind because his rights were based upon sea travel, and this was so whether he returned to the Philippines, the place of his enlistment, or journeyed in the opposite direction. and that the law makes no provision for commuting to soldiers the value of transportation in kind where they are not entitled to the regular statutory two cents a mile allowance. (94-330, J. A. G., Jan. 23, 1915.)

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