20. WAR DEPARTMENT DISPOSAL OF UNITED STATES PROPERTY Public Property IX 2. BY GIFT AGO 400.701 (Misc. Div.) 3d Ind. War Department, J. A. G. O., February 19, 1918.-To the Adjutant General. 1. The subject under consideration in these papers is the transfer to the town of Eagle, Alaska, of certain old water pipe on the Military Reservation at Fort Egbert, which appears to have been discarded some years ago as being of no further use, the same having been split through freezing. This pipe is desired by the town for use as posts for fencing a plot of ground which has been set aside for a cemetery for the town. The matter was taken up by the Clerk of the Common Council of the town on December 31st last with the Quartermaster at Fort Gibbon and also with the delegate representing Alaska in Congress, Hon. Charles A. Sulzer, and by Mr. Sulzer submitted to the Quartermaster General, who recommends that authority be given. by wire for the proposed transfer, provided there is no legal objection thereto. The views of this office are desired as to whether the transfer can legally be made. 2. The power to dispose of the property of the United States is granted by the Constitution to Congress and it is well settled that this power relates both to the real and personal property of the Government and embraces also any form of disposition thereof, either by sale, by donation, or by any other means. Congress, by section 1241 of the Revised Statutes (Comp. St. 1916, § 1972), has authorized the disposition of military stores which would include the property under consideration, under the following conditions: "The President may cause to be sold, any military stores which, upon proper inspection or survey, appear to be damaged or unsuitable for public service. Such inspection or surveys shall be made by officers designated by the Secretary of War, and the sales shall be made under regulations prescribed by him." Under the authority of this section the following regulations have been promulgated by the Secretary of War providing for the sale of the military stores and public property under his control: "Military stores and public property condemned and ordered sold will be disposed of for cash at auction, or to the highest bidder on sealed proposals, on due public notice, and in such market as the public interests may require." * * * (A. R. 1913, par. 680.) 3. The War Department is clearly without authority under the law to transfer or donate to the town of Eagle this damaged pipe; and, moreover, it would appear that the only method by which the town can acquire it is through its sale in accordance with the above paragraph of the Army Regulations and its purchase by the town after it has been inspected as required by law and found to be damaged or unsuitable for the public service. [Signed] S. T. Ansell, Acting Judge Advocate General. 21. SOLDIER'S RIGHT TO INNKEEPER'S SERVICES February 27, 1918. 1. By the papers in reference is submitted primarily a request for general information rather than a proposition involving legal questions. The question asked is: "Kindly advise if there are any hotels in the United States to which privates of either the Army or Navy in uniforms are not allowed admittance." There is no Federal law bearing directly upon this subject, except the Act of March 1, 1911 (36 Stat. 963 [Comp. St. 1916, § 10496]), which punishes any proprietor, manager, or employee of a theatre or other place of entertainment or amusement in the District of Columbia or in any territory, the District of Alaska or the insular possessions of the United States who makes or causes any discrimination against persons wearing the uniform of the United States Army, Navy, Revenue Cutter Service or Marine Corps. There are laws in many states of this country prohibiting discriminations against the uniform, but there is no Federal law which prohibits discrimination against persons wearing the uniform in so far as innkeepers are concerned. 2. The State of Virginia passed a law, approved March 21, 1916, prohibiting discrimination by common carriers, innkeepers, proprietors or lessees of any place of public amusement against persons lawfully wearing the uniform of the military service of the State or the United States. There are similar laws in other states, not necessary to be particularly enumerated in this connection. Their purport is the same and they should be consulted whenever this or a similar question arises in their respective jurisdictions. 3. At common law an innkeeper is obliged to receive all travellers who properly apply for admission, provided he has accommodation and the person so applying pays or is capable of paying reasonable charges for his entertainment. The rule is in fact even well settled that a guest must tender the price in advance if such is demanded. This obligation to serve the public attaches to everyone professing the trade of an innkeeper, but when his accommodations are exhausted, necessarily he may refuse to receive a traveller or applicant as a guest. Whether an innkeeper is justified in refusing to receive a traveller or in denying entertainment to a guest, so applying for accommodation, is a question of fact dependent always upon the circumstance of each particular case. It has been broadly stated that an innkeeper is justified in refusing entertainment to a guest, if it would injure his business to admit him to his house. It is doubtless true that an innkeeper would be justified in excluding any one who is or would be reasonably objectionable. 4. Again, at the common law, since inns are for the convenience of the public, and because the proprietors thereof are granted special privileges in return for public convenience, an indictment lies against an innkeeper who refuses to receive a guest, and whether or not such refusal was reasonably justified is always a defensive question of fact dependent upon the circumstances. A citizen in uniform does not thereby lose his right to become a guest and the question is specifically presented, would an innkeeper, other things being equal, be justified in refusing entertainment and accommodation to an applicant for such, merely because he was clothed in the uniform of his country. Certainly not. No local or organized prejudice could justify an innkeeper in taking such a position. To say the least, such an attitude would have its rise in disloyalty or snobbery, and would, without question, tend to incite a breach of the peace or other public disorder. Therefore, irrespective of the question whether states have enacted legislation bearing directly upon this question, an innkeeper refusing admission to a person otherwise entitled to be received as a guest solely upon the ground that he wore the uniform of the United States, would subject himself or herself to prosecution by way of indictment or information in all the States of the Union where the common law was adopted, and has not been modified in this respect by statute. 5. In the opinion of this office, there would be no reasonable justification for excluding a person as a guest merely because he wore the uniform of the Army or. the Navy of the United States. If such person was objectionable for other and different reasons, then any such exclusion would be independent of the question of the uniform. That is, a person otherwise objectionable would not be entitled to be entertained as a guest merely because he wore the uniform of the Army or the Navy. But an innkeeper who, when he has room, refuses to receive and duly entertain a member, in uniform, of the Military or Naval forces of the United States, who tenders a reasonable price for such entertainment, is subject to indictment and should be vigorously prosecuted. As to whether there are any hotels in the United States to which privates of either the Army or the Navy in uniform are denied admittance, this office is not advised and therefore expresses no opinion. [Signed] S. T. Ansell, Acting Judge Advocate General. 22. CANCELLATION OF CONTRACT FOR HARDSHIP TO CONTRACTOR Contracts VII. War Department, J. A. G. O., February 27, 1918. To the Adjutant General. 1. Under date of February 4, 1918, this office rendered an opinion with reference to the cancellation of the contract dated August 24, 1917, with the Cincinnati Grain & Hay Company for the delivery, subject to increase or decrease of 20%, of 1,000,000 lbs. of Timothy hay and 200,000 lbs. of wheat straw, f. o. b. cars, Camp McClellan, Anniston, Ala., during the period commencing September 2, 1917, and ending November 24, 1917. The Government exercised its option to increase the quantity of hay specified in the contract by 20%, making the total of 1,200,000 lbs., of which amount 415,975 lbs. have been furnished, leaving a balance of 784,025 lbs. to be delivered. The contract has been performed as to the straw. 2. In said report this office considered the claims that the contractor was entitled to relief on the ground that the camp quartermaster did MIL.L.-46 not call for deliveries of proportionate quantities during the early part of the contract period, and that the railway conditions obtaining during the latter part of the period were such as to make performance within the contract period impossible. It appears that the contractor immediately after entering into the contract placed orders for hay to cover the contract with responsible people in Michigan, notifying them that it was for the Government camps; and that by reason of the inability of the contractor to secure equipment for the transportation of the hay to the camps, the people with whom the orders were placed did not fill the same-the price of the hay having in the meantime materially advanced. It was claimed that the Government should have furnished them the equipment for shipping the hay, and that because of this failure on the part of the Government they should be released from their obligation to fill their contract with the Government. This office, in its report, said: "There is nothing in the contract requiring the Government to furnish the contractors with the equipment to ship the hay, but on the contrary, the contract places the obligation on the contractor to furnish the hay 'delivered f. o. b. cars, Camp McClellan, Anniston, Alabama, in such quantities and at such times as may be named by the Government.' Moreover, the contract does not specify the place from which the hay was to be procured, and it was up to the contractors to procure the hay where and under such conditions as would enable them to fill their contract. It is, therefore, the opinion of this office that the inability of the contractors to procure cars at the country points in Michigan where they claim to have procured the hay, furnished no legal ground for relief and that their request for the cancellation of their contract cannot legally be complied with." 3. There is now submitted a brief of Mr. Ware, attorney for the Cincinnati Grain & Hay Company, through the Honorable A. B. Rouse, M. C., in which he urges that the conditions obtaining during the period of performance of this contract constituted such a national crisis that the War Department should "abandon any hard, fast and technical rules of law and decide this matter upon its merits and afford the contractor a just and equitable adjustment under his contract." It is claimed, and it may be conceded, that the contractors acted with due diligence, doing everything in their power to obtain the equipment necessary to fill their contracts; but, in view of the fact that their contract bound them, without qualifications, to furnish the required quantity of hay, without specifying where it should be procured, the conditions relied upon constitute no legal ground for their relief. It is not believed that the conditions obtaining would have given them legal right to relief if the contract had been made with a private party, and the construction of the contract cannot be different because it is made with the Government. So far as the appeal is made to the War Department on ground of hardship, referred to as equitable grounds. the Department is without authority to give relief on any such ground, it being well settled that the Department cannot relieve contractors on grounds other than legal. Where relief is sought for on the ground of hardship, the application should be made to Congress and not to the War Department. This office must, therefore, adhere to the views ex pressed in its previous reports of February 4, 1918, copies of which are with the papers in reference, to the effect that the Department is without authority to grant these contractors the relief desired. [Signed] S. T. Ansell, Acting Judge Advocate General. 23. CONTRACT CLAUSES AS TO INFRINGEMENT OF PATENT RIGHTS February 28, 1918. Memorandum for the Aircraft Board. 1. In your communication dated February 27, 1918, you request the advice of this office as to the proper course of procedure with regard to elaims that the Government is infringing patents through contracts for aeronautical equipment. You say: "For your consideration I would say that many of the contracts call for the manufacture of mechanical devices according to specifications furnished by the Signal Corps; and that frequently the contracts have contained clauses indemnifying the contractor for patent infringements." 2. In the opinion of this office the proper procedure with reference to claims for infringement of patents depends upon varying conditions, which may be presented, as follows: (a) Where a contract is made for the manufacture of a patented device with a contractor claiming the right to make and dispose of such article, the practice of the War Department is to require the contractor supplying the article to stipulate in the contract to indemnify. the United States against the claims of all parties for the infringement of their patent rights. The Act of June 25, 1910 (36 Stat. 851 [Comp. St. 1916, § 9465]) gives to the owners of inventions covered by patents of the United States the right to sue the United States in the Court of Claims whenever such invention shall, after the passage of the act, "be used by the United States without license of the owners thereof or lawful right to use the same," excepting from the benefits of the act patents discovered or invented by the employees of the Government during their employment or service, etc. Should the United States be sued under authority of this statute for infringement, the contractors could be called on to defend the suit, and if the result of the suit should be adverse to the United States, they would be bound by such result in respect to the claim of the United States for indemnity under the terms of their contracts. It will be apparent that in procuring patented articles or supplies from persons who have patents from the United States covering the same, and have, therefore, a prima facie right to make and sell the same, the Department cannot undertake to pass upon the claims of third parties that the articles or supplies proposed to be furnished to the United States infringes patents granted to them; but that the proper course is to protect the interests of the United States by the stipulation hereinbefore referred to -leaving the conflicting claims to settlement in the courts, either between the respective claimants, or in a suit against the United States under the authority conferred by the said Act of June 25, 1910. It |