224. Same; time of war.-In time of war retired officers may be employed on active duty in the discretion of the President, and when so employed they shall receive the full pay and allowances of their grades. Par. 3, sec. 127a, added to the act of June 3, 1916, by sec. 51, act of June 4, 1920 (41 Stat. 785); U. S. C. 10:992.

225. Discharge of officers in Class B.-*

Whenever an officer is placed

in class B, a board of not less than three officers shall be convened to determine whether such classification is due to his neglect, misconduct, or avoidable habits. If the finding is affirmative, he shall be discharged from the Army.

Sec. 24b, added to the act of June 3, 1916, by sec. 24, act of June 4, 1920 (41 Stat. 773); U. S. C. 10: 571.

For classes A and B, see ante, 141.

226. Discharge of officers selected for elimination.

officers selected for elimination of less than ten years' commissioned service may, upon recommendation of the board herein provided for, be discharged *. Act of June 30, 1922 (42 Stat. 722).

227. Discharged officers; right to trial.-When any officer, dismissed by order of the President, makes, in writing, an application for trial, setting forth, under oath, that he has been wrongfully dismissed, the President shall, as soon as the necessities of the service may permit, convene a court-martial, to try such officer on the charges on which he shall have been dismissed. And if a courtmartial is not so convened within six months from the presentation of such application for trial, or if such court, being convened, does not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void. R. S. 1230; U. S. C. 10:573.

Notes of Decisions

Validity. This section held unconstitutional and inoperative on two grounds: (1) That where an officer was dismissed from the Army in time of war by a valid order of the President, he may only be reappointed in the mode prescribed by the Constitution (U. S. v. Corson (1885), 114 U. S. 619, 622); and (2) it has been superseded by A. W. 118, enacted Aug. 29, 1916 (and reenacted with but the addition of one word, June 4, 1920), post, 476. Wallace v. U. S. (1920), 55 Ct. Cl. 396, petition for rehearing and motion to remand denied (1922), 258 U. S. 296.

This section requiring a court-martial to be convened on application of any officer dis

missed by order of the President, setting forth under oath that he has been wrongfully dismissed, refers to a dismissal by the President alone, and does not include the removal of an officer by the appointment of another to his place with the consent of the Senate. Id.

Scope and construction.-The phrase "any officer dismissed," being prospective only in its meaning, does not apply to an officer dismissed before the passage of the act. (1878) 16 Op. Atty. Gen. 599.

Time for application for court-martial.— A delay of nine years in asking for a trial by court-martial is unreasonable. Newton v. U. S. (1883), 18 Ct. Cl. 435.

Pro

228. Discharge of warrant officers, Army Mine Planter Service.-* vided further, That within sixty days after the approval of this Act the number of warrant officers in the Army Mine Planter Service shall be reduced to forty, War Department appropriation act of June 30, 1922 (42 Stat. 723); U. S. C. 10: 275.

* *

That the Secretary of War is hereby authorized and directed to reappoint and immediately discharge or retire, as hereinafter directed, all warrant officers, Army Mine Planter Service, discharged from such service pursuant to the Act entitled "An Act making appropriations for the military and nonmilitary activities of the War Department for the fiscal year ending June 30, 1923, and for other purposes,” approved June 30, 1922: Provided, That warrant officers of the Army Mine Planter Service of less than ten years' service be discharged *. Act of Mar. 3, 1925 (43 Stat. 1101); U. S. C. 10: 977.

See also 341, 342, post.

229. Discharge; flying cadets.-Upon completion of a course prescribed for flying cadets, each flying cadet, if he so desire, may be discharged and commissioned as a second lieutenant in the Officers' Reserve Corps: Provided, That the Secretary of War is authorized to discharge at any time any flying cadet whose discharge shall have been recommended by a board of not less than three officers. Act of July 11, 1919 (41 Stat. 109), making appropriations for the support of the Army: Air Service; U. S. C. 10: 299.

Provided, That nothing in this Act shall be construed as amending existing provisions of law relating to flying cadets. Sec. 13a, added to act of June 3, 1916, by sec. 13, act of June 4, 1920 (41 Stat. 769), as amended by sec. 2, act of July 2, 1926 (44 Stat. 781); U. S. C. 10: 300.

230. Discharge of enlisted men; on account of dependent relatives.-When by reason of death or disability of a member of the family of an enlisted man, occurring after his enlistment, members of his family become dependent upon him for care or support, he may, in the discretion of the Secretary of War, be discharged from the service of the United States. Sec. 29, act of June 3, 1916 139 Stat. 187), as amended by sec. 29, act of June 4, 1920 (41 Stat. 775); U. S. C. 10: 652.

The section amended was similar except that it was limited in its application to cases where support was necessary and provided for the alternative of furlough to the Regular Army Reserve (now abolished, 110, ante). A provision of sec. 30, act of Feb. 2, 1901 (31 Stat. 756), had permitted discharge after one year's service where one parent had died and the other was solely dependent upon the soldier for support.

231. Same; for minority.-* * Provided further, That hereafter upon the presentation of satisfactory evidence as to his age and upon application for discharge by his parent or guardian presented to the Secretary of War within six months after the date of his enlistment, any man enlisted after July 1, 1925, in the Army under twenty-one years of age who has enlisted without the written consent of his parent or guardian, if any, shall be discharged with the form of discharge certificate and the travel and other allowances to which his service after enlistment shall entitle him. War Department appropriation act of Feb. 12, 1925 (43 Stat. 896); U. S. C. 10: 653.

232. Same; by purchase. That in time of peace the President may, in his discretion and under such rules and upon such conditions as he shall prescribe, permit any enlisted man to purchase his discharge from the Army. The purchase money to be paid under this section shall be paid to a paymaster of the Army and be deposited to the credit of one or more of the current appropriations for the support of the Army, to be indicated by the Secretary of War, and be available for the payment of expenses incurred during the fiscal year in which the discharge is made. Sec. 4, act of June 16, 1890 (26 Stat. 158); U. 8. O. 10: 651.

233. Discharge for misrepresentation of age; enlisted men who served during World War. That in the administration of any laws conferring rights, privileges, or benefits upon honorably discharged soldiers of the United States Army, their widows and dependent children, a soldier who served as an enlisted man between April 6, 1917, and November 11, 1918, both dates inclusive, and who was discharged for fraudulent enlistment on account of misrepresentation of his age, shall hereafter be held and considered to have been discharged honorably from the military service on the date of his actual separation therefrom if his service otherwise was such as would have entitled him to an honorable discharge: Provided, That no back pay or allowances shall accrue by reason of the passage of this Act. Act of Mar. 2, 1929 (45 Stat. 1505); U. S. C. 10: 654a. The act of Mar. 16, 1926 (44 Stat. 208) of similar purport but applying only to men who enlisted during the World War period, is omitted as superseded by this section.

234. Same; men enlisted during Spanish War and Philippine Insurrection.— That in the administration of any laws conferring rights, privileges, or benefits upon honorably discharged soldiers of the United States Army, their widows and dependent children, a soldier who was enlisted between April 21, 1898, and July 4, 1902, both dates inclusive, and who was discharged for fraudulent enlistment on account of misrepresentation of his age, shall hereafter be held and considered to have been discharged honorably from the military service on the date of his actual separation therefrom, if his service otherwise was such as would have entitled him to an honorable discharge: Provided, That no back pay or allowances shall accrue by reason of the passage of this Act: Provided further, That in all such cases the War Department shall, upon request, grant to such men or their widows a discharge certificate showing that the soldiers are held and considered to have been honorably discharged under the provisions of this Act. Act of Jan. 25, 1927 (44 Stat. 932); U. S. C. 10: 655. 235. Discharge certificate; issue in true name. That the Secretary of War and the Secretary of the Navy be, and they are hereby, authorized and required to issue certificates of discharge or orders of acceptance of resignation, upon application and proof of identity, in the true name of such persons as enlisted or served under assumed names, while minors or otherwise, in the Army or Navy during any war between the United States and any other nation or people and were honorably discharged therefrom. Applications for said certificates of discharge or amended orders of resignation may be made by or on behalf of persons entitled to them, but no such certificate or order shall be issued where a name was assumed to cover a crime or to avoid its consequence. Act of Aug. 22, 1912 (37 Stat. 324); U. S. C. 5: 200.

Similar provisions for relief of soldiers and sailors who enlisted or served under assumed names during the War of the Rebellion were made by act of Apr. 14, 1890, amended by act of June 25, 1910 (26 Stat. 55; 36 Stat. 824).

For form of discharge certificate to be issued to man enlisted under 21 years of age without the written consent of his parent or guardian and thereafter discharged at the request of the parent or guardian, see 231, ante.

236. Same; replacement when lost or destroyed. That whenever satisfactory proof shall be furnished to the War Department that any officer or enlisted man who has been or shall hereafter be honorably discharged from the military service of the United States has lost his certificate of discharge, or the same has been destroyed without his privity or procurement, the Secretary of War shall be authorized to furnish to such officer or enlisted man, or to the widow of such officer or enlisted man, a certificate of such discharge, to be indelibly marked, so that it may be known as a certificate in lieu of a lost or destroyed discharge: Provided, That such certificate shall not be accepted as a voucher for the payment of any claim against the United States for pay, bounty, or other allowance, or as evidence in any other case. Act of July 1, 1902 (32 Stat. 629); U. S. C. 5: 199.

237. Same; forging, counterfeiting, or altering prohibited.-Whoever shall forge, counterfeit, or falsely alter any certificate of discharge from the military or naval service of the United States, or shall in any manner aid or assist in forging, counterfeiting, or falsely altering any such certificate, or shall use, unlawfully have in his possession, exhibit, or cause to be used or exhibited, any such forged, counterfeited, or falsely altered certificate, knowing the sanre to be forged, counterfeited, or falsely altered, shall be fined not more than $1,000 or imprisoned not more than one year, or both, in the discretion of the court. Act of Mar. 4, 1917 (39 Stat. 1182); U. S. C. 18: 136.

238. Same; return after settlement of accounts. In all cases where it has become necessary for any officer or enlisted man of the Army to file his evidence

of honorable discharge from the military service of the United States to secure the settlement of his accounts, the accounting officer with whom it has been filed shall, upon application by said officer or enlisted man, deliver to him such evidence of honorable discharge; but his accounts shall first be duly settled, and the fact, date, and amount of such settlement shall be clearly written across the face of such evidence of honorable discharge and attested by the signature of the accounting officer before it is delivered. R. S. 282; U. S. C. 31: 101. 239. Duties; enforcement of State quarantine laws, officers commanding seacoast stations. The quarantines and other restraints established by the health laws of any State, respecting any vessels arriving in, or bound to, any port or district thereof, shall be duly observed by the officers of the customs revenue of the United States, by the masters and crews of the several revenue cutters, and by the military officers commanding in any fort or station upon the seacoast; and all such officers of the United States shall faithfully aid in the execution of such quarantines and health laws, according to their respective powers and within their respective precincts, and as they shall be directed from time to time by the Secretary of the Treasury. But nothing in this title shall enable any State to collect a duty of tonnage or impost without the consent of Congress. R. S. 4792; U. S. C. 42: 97.

Notes of Decisions

Nature of quarantine.-Quarantine is not actus Dei, but an ordinary incident of travel, to be contemplated by one undergoing a voyage. (1897) 21 Op. Atty. Gen.

375.

Extent of power of States.-This act does not imply an acknowledgment that a State might rightfully regulate commerce with foreign nations or amongst the States; for they do not imply that such laws are an exercise of such power, or enacted with a view to it. Gibbons v. Ogden (1824), 9 Wheat. 1, 205.

Congress by this section confirmed the powers of the States to regulate the matter of protecting public health, as to themselves seemed best. Bartlett v. Lockwood (1896), 160 U. S. 357.

In enforcing its quarantine regulations a State may detain immigrants from non. infected places who have traveled with others from infected localities. Minneapolis, St. P. & S. S. M. Ry. Co. v. Milner (C. C. 1893), 57 Fed. 276.

The right of the several States to establish and enforce quarantine regulations is not limited by any existing treaty between the United States and Norway and Sweden. Id.

Local health officers can not lawfully prevent inspectors of customs from landing at quarantine stations in the discharge of their duties; but the latter, while visiting and remaining at such stations, should observe all reasonable regulations in the interest of public health. (1884) 18 Op. Atty. Gen. 15.

No local health regulation which denies to inspectors of customs ample opportuni

Expenses of quarantine.-The costs and charges of quarantine inspection under State laws may lawfully be imposed upon the carrier which brings the suspected passengers into the country, as being incident to the business in which it is engaged. Minneapolis, St. P. & S. S. M. Ry. Co. v. Milner (C. C. 1893), 57 Fed. 276.

The United States can not be charged with the expenses of an epidemic merely because an official of the Government upon the request of a suffering community was dispatched to the scene; his services and statements there being merely advisory. McClenny v. U. S. (1910), 45 Ct. Cl. 305.

Collection of duties.-An impost means any tax or tribute imposed by authority and applies as well to a tax on persons as to a tax on merchandise. Passenger Cases (1849), 7 How. 283, 407.

State statutes imposing taxes on alien passengers are void. Id.

The power to establish quarantine laws rests with the States, but a State may not, to defray the expenses of her quarantine regulations, impose a tonnage tax on vessels owned in foreign ports and entering her harbors in pursuit of commerce. Peete v. Morgan (1873), 19 Wall. 581, 583.

A fee required by State quarantine laws for examination of vessels is a compensation for services rendered to the vessel, and is not a tonnage tax. Morgan's L. & T. R. & S. S. Co. v. State Board of Health (1886), 118 U. S. 455.

240. Duties; supervision of cooking; officers of the line. The line officers of the Army shall superintend the cooking done for the enlisted men. R. S. 1234; U. S. C. 10:497.

241. Same; officers of the Medical Department.-The officers of the Medical Department of the Army shall unite with the officers of the line, under such rules and regulations as shall be prescribed by the Secretary of War, in superintending the cooking done by the enlisted men; and the Surgeon General shall promulgate to the officers of said corps such regulations and instructions as may tend to insure the proper preparation of the ration of the soldier. R. S. 1174, as amended by act of Feb. 27, 1877 (19 Stat. 243); U. S. C. 10: 104.

242. Duties; surveying coast of the United States, officers of the Army.—Officers of the Army and Navy shall, so far as practicable, be employed in the work of surveying the coast of the United States whenever and in the manner required by the department having charge thereof. R. S. 4687; U. S. C. 33: 886. 243. Duty with troops; officers below grade of brigadier general.—* ** and

* **

in time of peace every officer serving in a grade below that of brigadier general shall perform duty with troops of one or more of the combatant arms for at least one year in every period of five consecutive years, except that officers of less than one year's commissioned service in the Regular Army may be detailed as students at service schools: * In the administration of this provision, all duty performed between April 6, 1917, and July 1, 1920, inclusive, or as a student at service schools, other than those of the noncombatant branches, at any time, shall be regarded as satisfying the requirements of service with combatant arms. * *. Sec. 4c, added to act of June 3, 1916, by sec. 4, act of June 4, 1920 (41 Stat. 762); U. S. O. 10:532, 533.

For requirements as to duty with troops of officers detailed to the General Staff Corps, see 165, ante.

244. Same; exemptions.-When in his judgment efficiency demands such action, the President is authorized to except officers of the Medical Corps, Ordnance Department, and Chemical Warfare Service from the provisions of this section requiring duty with troops of one or more of the combatant arms. The President is further authorized to except from the provisions of this section requiring · duty with troops of one or more of the combatant arms such officers of the Judge Advocate General's Department as are now engaged in patent litigation in which the Government is involved. Sec. 4c, added to act of June 3, 1916, by sec. 4, act of June 4, 1920, as amended by sec. 2, act of June 6, 1924 (43 Stat. 470); U. S. C. 10: 534.

For the administration of the provisions of this Act, the President may except from the operation of section 4c of the Act entitled "An Act for making further and more effectual provision for the national defense, and for other purposes," approved June 3, 1916, as amended, or of any act amendatory thereof or supplemental thereto, not more than seven officers of the Army. Sec. 701, adjusted compensation act of May 19, 1924 (43 Stat. 131); U. S. C. 38:681.

* Any officer so detailed at the date of the passage of this amendatory Act, shall, during his term of office as chairman, * be exempt

*

from the operation of any provision of law, or any rules or regulations issued

thereunder, which limits the length of such detail or compels him to perform Sec. 4, act of June 3, 1924 (43 Stat. 361), as

duty with troops.

*

*

amended by act of Feb. 28, 1927 (44 Stat. 1261); U. S. C. 49: 154.

The third paragraph of this section refers to officer detailed as chairman of the Inland Waterways Corporation.