The act of May 22, 1917, supra, section 16, provides: "Any of the personnel of the Coast and Geodetic Survey who may be transferred as herein provided shall, while under the jurisdiction of the War Department or Navy Department, have proper military status and shall be subject to the laws, regulations, and orders for the government of the Army or Navy as the case may be, in so far as the same may be applicable to persons whose retention permanently in the military service of the United States is not contemplated by law: * * "Nothing in this act shall reduce the total amount of pay and allowances they were receiving at the time of transfer. While actually employed in active service under direct orders of the War Department or of the Navy Department members of the Coast and Geodetic Survey shall receive the benefit of all provisions of laws relating to disability incurred in line of duty or loss of life." Lieut. Reese was one among a large number of officers who, it appears, at the end of the training camp at Fortress Monroe, Va., November 27, 1917, were ordered to their homes on the inactive list, to await call to active duty, in accordance with paragraph 41, Special Regulations, No. 49, 1917, governing training camps for reserve officers and candidates for commissions in the Army. The order purporting to place him on active duty again was contained in Special Orders, No. 299, War Department. December 24, 1917, as follows: "74. First Lieut. Ernest E. Reese, Ordnance Reserve Corps, is assigned to active duty and will proceed at once to Washington, D. C., and report in person to the Chief of Ordnance for duty. The travel directed is necessary in the military service." 3. In the opinion of this office there was no authority to place Lieut. Reese "on inactive duty" under the circumstances stated, so as to deprive him of pay and allowances. The officers transferred from the Coast and Geodetic Survey to the War Department and appointed in the Officers' Reserve Corps occupy a special status therein by reason of the provisions of the act of May 22, 1917, for their transfer and directing that "Nothing in this act shall reduce the total amount of pay and allowances they were receiving at the time of transfer." Furthermore, the Executive order under which they were transferred and appointed by the President placed them on active duty, which obviously gave them such a status as did not contemplate their being assigned to an inactive status by the War Department. Accordingly, it is the opinion of this office that Lieut. Reese is entitled to pay for the period during which he was ordered to remain on inactive duty in November and December, 1917, and it is recommended that he be advised to prepare vouchers covering this payment, attaching thereto a copy of all correspondence relative thereto. PAY AND ALLOWANCES: Effect on Forfeitures of Restoration to Duty by Secretary of War of Soldier Sentenced to Dishonorable Discharge and Forfeitures. Certain enlisted men were convicted of mutiny and were sentenced to dishonorable discharge, confinement at hard labor, and forfeiture of all pay and allowances due or to become due. Subsequently, upon its appearing that they had been improperly convicted of the offense charged, the Secretary of War directed that they be permitted to make application to be restored to duty to complete their enlistment. In pursuance of this direction, the unexecuted portion of their several sentences was remitted and they were restored to honorable duty. Held, that inasmuch as the court-martial sentence forfeited the pay and allowances of the men while in confinement under the sentence, and such forfeitures were completely executed up to the time the men were restored to honorable duty, the men were not entitled to be paid for such period of confinement. 242.2. War Department, J. A. G. O., March 19, 1918.-To The Adjutant General. 1. The commandant of the United States Disciplinary Barracks, Fort Leavenworth, Kans., forwards an inquiry for information as to whether the general prisoners honorably restored to duty by the Secretary of War. January 2, 1918, and referred to in the communication from this office to the commandant December 11, 1917, are entitled to pay during their period of confinement under their sentences of dishonorable discharge. The men referred to are those who were convicted of mutiny at Fort Bliss, Tex., in October, 1917, and sentenced to be dishonorably discharged the service, "to forfeit all pay and allowances due or to become due while under confinement under this sentence," and to be confined at hard labor for certain specified periods. (G. C. M. O. No. 1174, Hdqrs. So. Dept. 1917.) This office, in a letter dated December 11, 1917, advised the commandant of the United States Disciplinary Barracks, Fort Leavenworth, Kans., as follows: "Subject: Restoration to duty of Pvts. "1. Upon the review to this office of the cases against the above named men, it was held that they had been improperly convicted of the offense charged. The Secretary of War has directed that these men, upon their written application therefor, be restored to duty as promptly as possible to complete their enlistment. "2. Will you please, therefore, inform them of this fact and direct each of them, should he so desire, to make written application for restoration to duty and forward same through proper channels for the action of the Secretary of War?" The War Department's letter to the commandant of January 2, 1918, was in part as follows: "In the case of each of the following named general prisoners, the unexecuted portion of the sentences published in General Court Martial Orders, No. 1174, Southern Department, October 16, 1917, is remitted; he is honorably restored to duty under the enlistment entered into by him on the date set after his name; is transferred as private to Field Artillery, unassigned; and is detailed to duty at the United States Disciplinary Barracks for a period not to exceed three months: * 2. The effect of the War Department's action in this case was not to declare the sentence null and void, as appears to be the understanding at the disciplinary barracks, but was expressly limited to a remission of the unexecuted portion of the sentence and a restoration to honorable duty. Inasmuch as the court-martial sentence forfeited the pay and allowances of the men while in confinement under the sentence, and such forfeitures were completely executed up to the time the men were restored to honorable duty, the men are not entitled to be paid for such period of confinement. DISCIPLINE: Requirements of Record of Court-Martial when Accused Shown to be Insane; and Disposition Thereof. Where court-martial proceedings have been discontinued upon suggestion of the insanity of the accused, and thereafter, under paragraph 219, Manual for Courts-Martial, a medical board determines that the accused is insane, the proper practice is to complete the record by including therein the proceedings and findings of the insanity board, and any subsequent orders made with respect to the disposition of the insane soldier, and transmit the completed record to the office of the Judge Advocate General, to be lodged in the permanent files thereof. 250.4. Division. MARCH 19, 1918. From: The office of the Judge Advocate General. 1. In your communication of March 8, you inquire what disposition should be made of the record where court-martial proceedings have been discontinued upon suggestion of the insanity of the accused, and thereafter under paragraph 219, Manual for Courts-Martial, a medical board determines that the accused is insane. 2. In the opinion of this office the proper practice is to complete the record by including therein the proceedings and the findings of the insanity board, and any subsequent orders made with respect to the disposition of the insane soldier and transmit the completed record to this office to be lodged in the permanent files thereof. PAY AND ALLOWANCES: Liability of Soldier for Loss of Public Property Without Fault. A soldier should not be held responsible for the loss of Government proper which disappears while he is seriously ill and unable to care for the same, Army Regulations 685 provides that a soldier is chargeable for the value of public property lost or damaged by his neglect or fault. In the absence of negligence or other fault on the part of the soldier such liability does not attach. CLAIMS: Medical Service; Removal of Solider to Private Hospital. When it is properly determined by the proper officers of the Government that the facilities or accommodations at a military hospital are not adequate or proper for the treatment of any particular case, and the patient is removed to a private hospital for suitable care and treatment, the expenses incurred may be paid by the Government under the authority of the provisions in the Medical Department's appropriation (40 Stat. 40, 60) " for medical care and treatment not otherwise provided for, including care and subsistence in private hospitals." 701. War Department, J. A. G. O., March 19, 1918.-To The Adjutant General. 1. The opinion of this office is requested (a) As to the responsibility of the Government for expenses incurred in the treatment of soldiers removed to civil hospitals because of lack of facilities or accommodations at military hospitals; and (b) The responsibility of a soldier for the loss of Government property that disappears while he is seriously ill and unable to care for the same. As abstract questions, those may be answered, generally, as follows: (a) When it is properly determined by the proper officers of the Government that the facilities or accommodations at a military hospital are not adequate or proper for the treatment of any particular case, and the patient is removed to a private hospital for suitable care and treatment, I think that undoubtedly the expenses incurred may properly be paid by the Government under the authority of the provision in the Medical Department's appropriation (40 Stat. 40, 60) "for medical care and treatment not otherwise provided for, including care and subsistence in private hospitals, ***" The officers of the Medical Department should recommend in any particular case whether it is necessary in order to furnish proper care and treatment to transfer a patient from a military hospital to a private hospital. (b) As to the responsibility of a soldier for the loss of Government property which disappears while he is seriously ill and unable to care for the property. the statement of this question suggests the answer. It would manifestly be a very great injustice to hold a soldier responsible for public property which had been intrusted to him and which disappears while he is so seriously ill that he is unable to care for it. Paragraph 685, Army Regulations, provides: "If an article of public property be lost or damaged by the neglect or fault of any officer or soldier, he shall pay the value thereof, or the cost of repairs, at such rates as may be determined by a survey of the property." There must be negligence or other fault on the part of a soldier in the case of loss or damage of public property in order to charge him with the responsibility therefor. PUBLIC PROPERTY: SIGNAL CORPS: Requisitioning Manufacturing Plants and Supplies. The War Department has legal authority, during the present emergency, to commandeer lumber camps, sawmills, and supplies owned by private parties for the use of the Signal Corps of the Army under the following circumstances: If a manufacturer, with whom an order has been placed by the Secretary of War to furnish war material, declines to fill the order according to the conditions thereof, the Secretary of War is empowered by virtue of section 120 of the national defense act (39 Stat. 166, 213), to take immediate possession of the plant of the manufacturer in question, and through the Ordnance Department manufacture such war material. Similarly, under section 10 of the food products and fuel act of August 10, 1917 (40 Stat. 276, 279), the President, acting through the Secretary of War, is empowered to requisition supplies necessary to the support of the Army or any other public use connected with the common defense and storage facilities for such supplies. Such supplies would consist of not only the actual materials to be manufactured, but also sawmills, engines, handling machinery, etc. The Signal Corps act of July 24, 1917 (40 Stat. 243), gives broad authority for the manufacture of materials, supplies, etc., for the construction of aircraft, and the appropriations therein made could be used to operate any plant so seized. 386. War Department, J. A. G. O., March 19, 1918.-To the Secretary of War. 1. The views of this office are desired with respect to a telegram from Col. Disque, Signal Corps, Portland, Oreg., reading as follows: "On suggestion of Col. Bolton, I present the following situation: Without exception lumber operators, in convention this city, February 27, turned over to me complete authority to dispose of all labor problems and bound themselves to abide by every decision. With one exception, all are complying both to the spirit and letter of my instructions. This one, an operator of importance with Republican political affiliations, indicates intention to break faith with me and all other operators. He is without support or sympathy in any direc tion. In order to prove value of eight hour day and other regulations, I must compel this operator in one way or another to do all those things which his associates and himself agreed to do, and which all of them, except him, are doing. We have never used complete power of commandeer; and it may be necessary that I do so in this man's case, taking over his operations in order to provide labor conditions in his logging camps as are provided in all others, and in order to impress upon him that he must play the game. What I wish is assurance that, if I find it necessary to undertake such action, the War Department will refuse to interfere, because I anticipate his influence sufficient to result in much pressure being brought to reverse any action I may take. Can you secure assurance that I will be allowed to proceed, if I find it necessary? I regard this as extremely important as a means of satisfying labor and operators that when they show the spirit of getting together in the interests of the Government, the Government itself will lend all the assistance possible." The opinion of this office is desired on the question "whether, in case of necessity, it will be possible for him, Col. Disque, to commandeer camps, sawmills, etc., which are engaged in cutting spruce for him. We would like, if possible, to find a method of meeting Col Disque's suggestion." The authority to requisition or to commandeer supplies, manufacturing plants, etc., that is, to take them for public use, except in the theater of military operations, where it may be necessary to exercise such authority under the war power, rests on statutes, which provide for the requisitioning of supplies and manufacturing plants for certain limited purposes with the obligation to make just compensation therefor. Such statutes, involve the exercise of the power of taking private property for public use, analogous to that of eminent domain. The statutes giving such authority, so far as material to the matter in reference, are the following: (a) Section 120 of the national defense act, approved June 3, 1916 (39 Stat. 166, 213). This statute authorizes the President to place an order for supplies with any manufacturing concern, provides that such order shall have precedence over private orders, and that if the person, firm, or corporation, to whom the order is given, shall refuse to furnish the supplies at a reasonable price, as determined by the Secretary of War, then, the President, through the head of the proper department, might take immediate possession of the plant, "and, through the Ordnance Department of the United States Army, to manufacture therein" the required supplies. (b) Section 10 of the food, feed, and fuel act, approved August 10, 1917 (40 Stat. 276, 279). This statute authorizes the President to “ requisition foods, feeds, fuels, and other supplies necessary to the support of the Army, or the maintenance of the Navy, or any other public use connected with the common defense, and to requisition or otherwise provide storage facilities for such supplies." 2. Answering the specific question submitted, that is whether it is possible for Col. Disque to commandeer the camps, sawmills, etc., which are engaged in cutting spruce for him, it should be stated that it is not possible for Col. Disque to do so. The authority to requisition property conferred by the foregoing statutes is vested in the President, who acts through the head of the department to which the respective supplies pertain. With regard to the possibility of finding a method of meeting Col. Disque's suggestion, as to taking over the plant of the operator who fails to abide by the arrangement, and the oper ation thereof under the direction of the Signal Corps, it will be necessary to consider the matter with respect to the statutes cited above. 3. With respect to section 120 of the national defense act, supra, it is not clear whether the action desired could be taken under this statute. If an order has been placed with a particular manufacturer of spruce lumber to furnish the same, and if the manufacturer should decline to fill the order, according to the conditions thereof, it will be competent to take immediate possession of the plant of the manufacturer and supply the same as required by the statute. As stated above, the order for the taking immediate possession of the plant would have to be given through the head of the proper department; that is, through the Secretary of War. In the absence of more definite information as to whether or not an order has been placed with this particular manufacturer, this office is unable to state definitely whether it would be practicable to proceed under this statute. 4. With respect to section 10 of the food, feed. and fuel act, supra, this statute contemplates the requisitioning of the supplies themselves or of storage facilities for supplies, and does not contemplate the requisitioning of manufacturing plants as operating plants. It would not, therefore, authorize the requisitioning of manufacturing plants engaged in producing spruce lumber, although it may be competent to requisition articles of supplies comprised in the plants, such as sawmills, engines, handling machinery, etc., where the same are required for any public use connected with the common defense. In this way it would be practicable to get control of the sawmill and operate the samę under authority of the Signal Corps. Section 9 of the Signal Corps act of July 24, 1917 (40 Stat. 243, 245), gives broad authority for the manufacture of materials, supplies, etc., for the construction of aircraft; and the appropriations therein made could be used to operate the plant. 5. It is the opinion of this office, therefore, that the desired end may be attained either by requisitioning the plant under section 120 of the national defense act, if the facts justify action under this statute, or by requisitioning the articles comprised in the plant under section 10 of the food, feed, and fuel act, supra, and the operation of the plant under the direction of the Signal Corps of the Army. PAY AND ALLOWANCES: Baggage Allowance of Officers Transferred to Permanent Station During the Emergency. While the provisions of General Orders, No. 86, War Department, 1917, relating to the disposition of the household goods of officers during the present emergency, have been construed to mean that an officer is entitled only to one change of station allowance during the existence of the emergency, this does not apply to an officer who is given a permanent station and whose tenure there is presumed to be indefinite. 524. War Department. J. A. G. O., March 20, 1918.-To The Adjutant General. 1. The question raised in these papers, which have been referred to this office informally for an opinion, is whether Brig. Gen. Edward H. Plummer is entitled to have his regulation allowance of household goods shipped from Camp Dodge, Iowa, to Fort Sill, Okla. Gen. Plummer has been relieved from command of the Eighty-eighth Division at Camp Dodge and directed to 'Proceed to Fort Sill, Okla., and assume command of that post, relieving Brig. Gen. Montgomery M. McComb, United States Army, retired.' The Quartermaster General, in the second indorsement, states that the records of that office indicate that the household effects of Gen. Plummer were shipped at public expense to Camp Dodge from the Canal Zone in August, 1917, and that, therefore, under the provisions of General Orders, No. 86, War Department, 1917, there is no authority known to that office which permits the reshipment of his authorized baggage allowance at public expense during the remainder of the existing emergency. While the provisions of General Orders, No. 86, War Department, 1917, relating to the disposition of the household goods of officers during the present emergency have been construed to mean that an officer is entitled only to one change of station allowance during the existence of the emergency, this does not apply to an officer who is given a permanent |