What constitutes a dismissal.-The acceptance of a resignation, and the appointment of an officer to fill the vacancy created by such resignation, is not a dismissal within the meaning of this section. Blake f. C. S. (1878), 14 Ct. Cl. 462.

Where an Army officer was sentenced to dismissal from the service, and the sentence, without having been approved by the President, was carried into effect under orders of the War Department, held, that the subsequent recognition by the Presi ent of the vacancy by making an appoint. ment or nomination of a person to fill the place of such officer, operated as a confirmation of the sentence and orders. (1879) 16 Up. Atty. Gen. 298.

Leave with void conditions.-Accepting a a leave with the condition affixed that it be without pay does not amount to absence without leave. U. S. v. Andrews (1916), 240 U. S. 90.

Determination of fact of desertion.-The jurisdiction to find the fact of desertion is vested in the President alone, and his decision can not be reviewed by the Court of Claims. Newton v. U. S. (1883), 18 Ct. Cl. 435.

Officer appointed during Senate recess.An officer appointed and commissioned during a recess of the Senate comes within this section as to dismissal without courtmartial. O'Shea v. U. S. (1893), 28 Ct. Cl. 392.

Cadets of Military Academy.-A cadet in the Military Academy at West Point is not an officer within the meaning of this section, and the President may dismiss him summarily, without the intervention of a court-martial. Hartigan v. U. S. (1905), 196 U. S. 169, affirming (1903), 38 Ct. Cl. 346.

477 (A. W. 119). Rank and precedence among Regulars, Militia, and Volunteers.-That in time of war or public danger, when two or more officers of the same grade are on duty in the same field, department, or command, or of organizations thereof, the President may assign the command of the forces of such field, department, or command, or of any organization thereof, without regard to seniority of rank in the same grade. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 811); U. S. C. 10: 1591.

Same as first sentence of art. 119, Code of 1916. The omitted portion read as follows: "In the absence of such assignment by the President, officers of the same grade shall rank and have precedence in the following order, without regard to date of rank or commission as between officers of different classes, namely: First, officers of the Regular Army and officers of the Marine Corps detached for service with the Army by order of the President; second, officers of forces drafted or called into service of the United States; and, third, officers of the volunteer forces: Provided, That officers of the Regular Army holding commissions in forces drafted or called into the service of the United States or in the volanteer forces shall rank and have precedence under said commissions as if they were commissions in the Regular Army; the rank of officers of the Regular Army under commissions in the National Guard as such shall not, for the purposes of this article, be held to antedate the acceptance of such officers into the service of the United States under said commissions."

478 (A. W. 120). Command when different corps or commands happen to join. When different corps or commands of the military forces of the United States happen to join or do duty together, the officer highest in rank of the line of the Regular Army, Marine Corps, forces drafted or called into the service of the United States, or Volunteers, there on duty, shall, subject to the provisions of the last preceding article, command the whole and give orders for what is needful in the service, unless otherwise directed by the President. Sec. 1, Ch. 11, act of June 4, 1920 (41 Stat. 811); U. S. C. 10: 1592.

Same as in Code of 1916.

Notes of Decisions

Officers of Marine Corps.-This section does not operate to give to officers of the Marine Corps any authority to exercise command in the Army, unless they have any part of the Marine Corps is present

been detached for service with the Army by order of the President, and are still serving with the Army under that order. When

ercise command over the Army any more than a naval officer can when some part of the Navy is cooperating with the Army; and the converse is true of Army officers cooperating with the Marine Corps. (1909) 28 Op. Atty. Gen. 15.

with the Army and engaged in a common enterprise with it, without an order of the President detaching it for service with the Army, the case is one of cooperation and not of incorporation, and in such a case no officer of the Marine Corps can ex479 (A. W. 121). Complaints of wrongs.--Any officer or soldier who believes himself wronged by his commanding officer, and, upon due application to such commander, is refused redress, may complain to the general commanding in the locality where the officer against whom the complaint is made is stationed. The general shall examine into said complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, transmit to the Department of War a true statement of such complaint, with the proceedings had thereon. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 811); U. S. C. 10: 1593.

Same as in Code of 1916.

480. Execution of laws.-From and after the passage of this Act it shall not be lawful to employ any part of the Army of the United States as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by Act of Congress; * and any person wilfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years, or by both such fine and imprisonment. Sec. 15, act of June 18, 1878 (20 Stat. 152); U. S. C. 10:15.

An act entitled “An Act to define and punish crimes in the District of Alaska and to provide a code of criminal procedure for the District," approved March third, eighteen hundred and ninety-nine, be, and is, amended by adding to section three hundred and sixty-three thereof the following: "Provided, section fifteen of an Act entitled 'An Act making appropriations for the support of the Army for the fiscal year ending June thirtieth, eighteen hundred and seventy-nine, and for other purposes,' approved June eighteenth, eighteen hundred and seventyeight, shall not be construed to apply to the District of Alaska"; Sec. 29, act of June 6, 1900 (31 Stat. 330), amending sec. 363, act of March 3, 1899 (30 Stat. 1325).

*

A provision of this section, that no money appropriated by the act should be used to pay any expenses incurred in the employment of any troops in violation of the section, is omitted here, as temporary merely.

Notes of Decisions

Use of troops.-The provisions of this section do not abridge the power to use any part of the land or naval forces, or militia, for the purposes set forth in 481, post, relating to the enforcement of civil rights, (1890) 19 Op. Atty. Gen. 570.

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Troops of the United States can not, without violating this section, be employed as a posse comitatus, to aid the United States marshal or his deputies in arresting certain persons in the State of Kentucky charged with robbing an officer of the Gov

503, 1297, 505, post. (1878) 16 Op. Atty. Gen. 162; (1881) 17 Op. Atty. Gen. 242.

The President may, however, under 503, post, direct the military forces to render the marshal for the Indian Territory such aid as may be necessary to enable him to maintain the peace and enforce the laws of the United States in that Territory; but the marshal can not himself call on the troops for such aid. (1889) 19 Op. Atty. Gen. 293. And as to the exercise of such power in regard to Alaska, see (1889) 19 Op. Atty. Gen. 368.

ernment. (1881) 17 Op. Atty. Gen. 71. Nor can they be employed in the Indian Territory to aid in the preservation of peace and the arrest of alleged outlaws and "bandits," unless such persons are illegally intruding or attempting to intrude upon the Indian country, or are absconding offenders within the provisions of 487, post. (1894) 21 Op. Atty. Gen. 72. Nor can they be used for the suppression of unlawful organizations, unless the state of facts be such as to enable them to be used under the provisions of R. S. 5298, 5300, post, 481. Execution of process. The commissioners authorized to be appointed by the preceding section are empowered, within their respective counties, to appoint, in writing, under their hands, one or more suitable persons, from time to time, who shall execute all such warrants or other process as the commissioners may issue in the lawful performance of their duties, and the persons so appointed shall have authority to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the land or naval forces of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged; and such warrants shall run and be executed anywhere in the State or Territory within which they are issued. R. S. 1984; U. S. C. 8: 50.

It shall be lawful for the President of the United States, or such person as he may empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia, as may be necessary to aid in the execution of judicial process issued under any of the preceding provisions, or as shall be necessary to prevent the violation and enforce the due execution of the provisions of this Title. R. S. 1989; U. S. C. 8: 55.

The "Title" in question is entitled " Civil Rights."

Section 1983 of the Revised Statutes provides for the appointment by United States courts of commissioners, with authority to arrest and examine persons charged with offenses against civil rights.

The Army is not to be used, as a posse comitatus or otherwise, for the purpose of executing the laws, except as expressly authorized by the Constitution or by act of Congress, by sec. 15, act of June 18, 1878, 480, ante.

Obstructing the execution of process issued under the provisions of this section and the section next following was made punishable by R. S. 5516, incorporated in sec. 141, Criminal Code.

Notes of Decisions

Operation of statute.-480 ante, forbidding the employment of the Army as a posse comitatus for the purpose of executing the laws, does not abridge the power to use any part of the land or naval forces, or militia, for the purposes set forth in this section. (1890) 19 Op. Atty. Gen. 570.

Appointment of commissioners.-The power to appoint process servers, given by this section, extends to all commissioners. In re Upchurch (C. C. 1889), 38 Fed. 25.

482. Enforcement of law; Hawaiian Islands. That the governor shall be responsible for the faithful execution of the laws of the United States and of the Territory of Hawaii within the said Territory, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the Territory of Hawaii, or summon the posse comitatus, or call out the militia of the Territory to prevent or suppress lawless violence, invasion, insurrection, or rebellion in said Territory, and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privilege of the writ of habeas corpus, or place the Territory, or any part thereof, under martial law until communication can be had

with the President and his decision thereon made known. Sec. 67, act of Apr. $0, 1900 (31 Stat. 153) ; U. S. C. 48: 532.

483. Same; Philippine Islands.-That the governor general * * * shall be responsible for the faithful execution of the laws of the Philippine Islands and of the United States operative within the Philippine Islands, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the islands, or summon the posse comitatus, or call out the militia or other locally created armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion; and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privileges of the writ of habeas corpus, or place the islands, or any part thereof, under martial law: Provided, That whenever the Governor General shall exercise this authority, he shall at once notify the President of the United States thereof, together with the attending facts and circumstances, and the President shall have power to modify or vacate the action of the Governor General. Sec. 21, act August 29, 1916 (39 Stat. 552); U. S. C. 48: 1111. 484. Same; Porto Rico.-That the governor shall be responsible for the faithful execution of the laws of Porto Rico and of the United States applicable in Porto Rico, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the island, or summon the posse comitatus, or call out the militia to prevent or suppress lawless violence, invasion, insurrection, or rebellion, and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privilege of the writ of habeas corpus, or place the island, or any part thereof, under martial law until communication can be had with the President and the President's decision therein made known. * Sec. 12, act March 2, 1917 (39 Stat. 955); U. S. C. 48: 771.

**

**

485. Enforcement of neutrality.—Whoever, being a person belonging to the armed land or naval forces of a belligerent nation or belligerent faction of any nation and being interned in the United States, in accordance with the law of nations, shall leave or attempt to leave said jurisdiction, or shall leave or attempt to leave the limits of internment in which freedom of movement has been allowed, without permission from the proper official of the United States in charge, or shall willfully overstay a leave of absence granted by such official, shall be subject to arrest by any marshal or deputy marshal of the United States, or by the military or naval authorities thereof, and shall be returned to the place of internment and there confined and safely kept for such period of time as the official of the United States in charge shall direct; and whoever, within the jurisdiction of the United States and subject thereto, shall aid or entice any interned person to escape or attempt to escape from the jurisdiction of the United States, or from the limits of internment prescribed, shall be fined not more than $1,000 or imprisoned not more than one year, or both. Sec. 7, Title V, act of June 15, 1917 (40 Stat. 223); U. S. C. 18: 37.

That the President may employ such part of the land or naval forces of the United States as he may deem necessary to carry out the purposes of this title. Sec. 9, Title V, act of June 15, 1917 (40 Stat. 223); U. S. C. 18: 38.

That the President of the United States is hereby authorized and empowered to employ such part of the land or naval forces of the United States as shall be necessary to carry out the purposes of this act. Sec. 806, Title VIII, act of Sept. 8, 1916 (39 Stat. 800) ; U. S. C. 15: 77.

The third paragraph of this section refers to the enforcement of provisions against unfair methods of competition in trade during a war in which the United States is not engaged, as contained in secs. 5 and 6, act of Sept. 8, 1916 (39 Stat. 799).