sconding offenders within the provisions of section 2152, Revised Statutes. 21 Op. 72.

5. Employment of United States troops in Alaska. The question as to what extent and under what circumstances the military forces of the United States may be used for the protection of life and property in Alaska, considered; and the views expressed in a former opinion, dated April 18, 1889 (19 Op. 293), submitted as covering the question. 19 Op. 368.

6. Troops of the United States can not, without violating the provisions of section 15 of the act of June 18, 1878 (20 Stat. 152), 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 Government. 17 Op. 71.

7. Power to enforce civil rights not abridged. The provision in section 15 of the act of June 18, 1878 (20 Stat. 145, 152), 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 section 1989, Revised Statutes, relating to the enforcement of civil rights. 19 Op. 570.

8. In the distribution of supplies to the destitute inhabitants of Cuba, under the provisions of section 1 of the act of May 18, 1898 (30❘ Stat. 419), the commanding officers of the Army may use either army officers or such other volunteer agencies as may be available for the purpose, and the field of their operations is not necessarily restricted to the territory over which they exercise actual control. 22 Op. 190.

9. Same. Notwithstanding the signing of the protocol and the suspension of hostilities, a state of war still exists between this country and Spain, as peace can only be declared pursuant to the negotiations between the authorized peace commissioners.

b. Enlistment-Reenlistment-Discharge.

10. The enlistment of white men in colored regiments is prohibited by implication by sections 1104 and 1108, Revised Statutes. 17 Op. 47.

11. Reenlistment-Must have served in the Army. A man can not be reenlisted as a pri

vate under the act of February 27, 1893 (27 Stat. 478), unless he has served as such in the Army for twenty years. Service in the Navy can not be so counted. 20 Op. 684.

12. Reenlistment.-A convicted deserter from the Army, undergoing sentence, must become the recipient of Executive clemency and must make application for reenlistment before the question of the effect of the President's pardon upon his right to reenlist can arise. 21 Op. 568.

13. Enlistment-Former service. A recruiting officer has the right to reject a candidate for enlistment in the Army whose service during his previous term was not honest and faithful, notwithstanding the pardon of the offense. 22 Op. 36.

14. Reenlistment during desertion.-A soldier who enlisted for three years in August, 1862, who deserted in a short time and then reenlisted in October, 1862 for nine months and served faithfully and was discharged and was then arrested in January, 1864, for desertion, was admitted to a hospital and again deserted, is, by his second desertion, barred of relief under the act of March 2, 1889 (25 Stat. 869). 20 Op. 288.

15. Where deserter voluntarily returns— Discharge. Where a person entered the military service in August, 1862, as a volunteer, to serve for three years, and subsequently deserted, but afterwards voluntarily returned to service under the President's proclamation (of pardon) of March 11, 1865, and was mustered out of service along with his company July 2, 1865: Advised that the time which elapsed between his desertion and his return should not be credited to him in a discharge or otherwise, but that he is entitled to have his actual service credited to him in an honorable discharge. 18 Op. 427.

c. Enlisted men.

16. Excess of payment to soldier-Mistake of law. A soldier should not be held accountable for money paid him in excess of the amount to which he was entitled, where such payment was made through a mistake of law on the part of the executive officers of the Government. 21 Op. 323.

17. Promotion-Assignment.-The President has authority to assign enlisted men of the Army, who have passed the examination as candidates for commissions, to vacancies

Op. 362, followed.) Ib.

19. Same-Can not require second examination. A regulation can not be promulgated requiring a successful candidate who holds such certificate of eligibility to undergo a second examination after a specified time. Ib. 20. Same. The fact that such eligible has become 30 years of age does not vacate his right to promotion under the act. Ib.

21. Promotion.-A soldier who passes a successful examination and becomes the holder of a certificate under the provisions of the act of July 30, 1892 (27 Stat. 336), is entitled, under that act, to promotion as second lieutenant after the graduates of the Military Academy shall have been provided for and assigned. 22 Op. 57.

22. Promotion.-Under the facts presented, there has been no definite conclusive finding or ascertainment that Sergt. A. D. Sydenham, the holder of a certificate of eligibility under the act of July 30, 1892 (27 Stat. 336), was physically disqualified to perform military service, the weight of evidence being that he is physically qualified. Consequently he is entitled to the benefits accorded him in that act unless he is now shown to be physically disqualified by a legally constituted army medical board. 22 Op. 91.

23. Same.-Although a soldier is primarily entitled to promotion by reason of a certificate of eligibility, yet, if he is in fact disqualified to perform military service by reason of physical disability, this would operate to disbar him. Ib.

24. Pay and allowance.-Section 35 of the draft act (act of March 3, 1863-12 Stat. 736), prohibits allowance of extra pay to soldiers for special services rendered between September 1, 1863, and October 20, 1863. 20 Op. 18.

25. Same. The question is not affected by the fact that in the act of February 9, 1863

26. General service messengers-Compensation-Not entitled to the $2 additional compensation monthly for distinguished service allowed under section 1285, Revised Statutes.-A private soldier who received a certificate of merit from the President for distinguished services, which entitled him, under section 1285, Revised Statutes, to "additional pay at the rate of $2 per month," is not entitled after his discharge as such private soldier, and enlistment as a "general service messenger," under the act of July 29, 1886 (24 Stat. 167), to receive the $2 per month in addition to his compensation as general service messenger, the act of 1886 expressly providing that such messengers shall receive no other compensation, pay, or allowance except in the specific instance therein named. 19 Op. 471.

ARTIFICIAL LIMBS. See ARTIFICIAL LIMBS.
PENSIONS. See PENSIONS.

RETAINED PAY. See TREASURY DEPART-
MENT, II, h, 131.

VOLUNTEERS. See ARMY, III.

d. Medals.

27. Delay in presenting claim.-A claim for a medal of honor under the act of March 3, 1861 (12 Stat. 751) should not be entertained where there is an unexplained delay of twenty-eight years in presenting the claim and it is unaccompanied by any official evidence of the statements made. 20 Op. 421. 28. Where applicant is not in military service when the case reaches the President for consideration.-Under section 6 of the act of March 3, 1863 (12 Stat. 751), the President may present a medal of honor to an officer or private in the military service of the United States who has distinguished himself in action, notwithstanding he is not in the military service at the time the case reaches the President for consideration, provided the application or recommendation therefor was made while he was in the military service. 24 Op. 580.

29. Same.-A medal of honor can not be awarded where the application or recommendation therefor is made after the officer or private has been discharged from the military service. Ib.

e. Army Posts-Exchanges-Canteens.

30. Post-trader-Appointment.-Where one person had been appointed post-trader for a certain military post, and subsequently, on a change in the location of the post,

another person was appointed post-trader for

the same post: Held that as the law allows but one post-trader to be appointed for a military post, the second appointment must be deemed to work a revocation of the first, and accordingly that the last appointee is entitled to the place. 17 Op. 424.

31.

Same.-Opinion of May 19, 1877 (15 Op. 278), that a post-trader is simply a person licensed by the Secretary of War, etc., concurred in. Ib.

32. Post-trader-Appointment-Removal.—

While under section 3 of the act of July 24, 1876 (19 Stat. 100), a post-trader can not be appointed by the Secretary of War excepting on the recommendation of a council of administration appointed by the commanding officer of the post, yet he may be removed by the Secretary without the concurrence of the council of administration and commanding officer. 17 Op. 517.

33. Post exchanges-Canteens.-Under section 17 of the act of March 2, 1899 (30 Stat. 981), no officer or private soldier can be detailed in the canteen section of post exchanges to sell intoxicating drinks, either directly or indirectly, nor can a license or permission be given by the commanding officer to a private person to sell liquors in any encampment, fort, or premises used for military purposes by the United States. 22 Op. 426.

34. Same-Employment of civilians.-Section 17 does not, however, prevent the continuance of the sale of intoxicating drinks through the canteen section of the post exchanges as heretofore organized, by civilians employed for that purpose. Ib.

f. Appropriations.

penses.-The appropriation made by the act of March 3, 1881 (21 Stat. 468), in the provision authorizing the creation of a board of army officers to make examinations of improvements of heavy ordnance and projectiles, is applicable to expenses necessarily incurred by the board in performing the duties devolved thereon, among which the actual and necessary expenses of its members for board and lodging and for traveling while so engaged may be fairly included. 17 Op. 252.

36. The act of July 7, 1884 (23 Stat. 194, 220), making an appropriation "for the care, support, and medical treatment of seventyfive transient paupers, medical and surgical patients in the city of Washington, under a contract to be made with such institution as the Surgeon-General of the Army may select," etc., authorizes that officer, within the limits of such appropriation, to contract with one or more hospitals, as in his judgment will best fulfill its purposes. 18 Op. 33.

37. Army transportation-Purchase of land Stat. 1064), making an appropriation for for wharves.-The act of March 3, 1899 (30 "transportation of the Army and its supplies," impliedly authorizes the Secretary of War to purchase for the United States such land as in his judgment may be necessary for the erection of the wharf or wharves

contemplated by the appropriation, and the land so purchased can be paid for out of said appropriation. 22 Op. 665.

g. Supplies-Purchase of.

38. Emergency purchases.-Purchases of supplies for the Army made in open market after advertisement, where no bids have been received in response to such advertisement, are emergency purchases within the meaning of the act of July 5, 1884 (23 Stat. 109), and should be "at once reported to the Secretary of War for his approval." 18 Op. 349.

39. Same. When parts of machinery or of stoves or ranges or patented articles are needed, such articles are required by that act to be purchased in the same way as other quartermaster's supplies-that is, by contract after advertisement, except in cases of emergency, in which cases the purchases are to be reported to the Secretary of War for

II. Officers.

a. In General.

Secretary of War. See War Department II, a.

40. Judge-advocate-Brevet commissionTransfer from volunteer to regular service.— A judge-advocate, appointed in the volunteer service under the act of July 17, 1862 (12 Stat. 597), with the rank of major, and afterwards, but prior to the act of July 28, 1866 (14 Stat. 332), as amended by the act of February 25, 1867 (14 Stat. 410), brevetted a lieutenant-colonel and also a colonel of volunteers, by which later acts he became transferred from the volunteer to the regular service, is not entitled to have such brevets treated as brevets in the regular service. Op. 3.

17

41. Same. The acts of 1866 and 1867 produced no effect upon the brevet commissions in the volunteer service previously conferred. Such brevets can not be treated as brevets in the regular service. Ib.

42. Judge-advocate-Brevet commission.On reconsideration, the opinion of January 13, 1881 (17 Op. 3), holding that the brevets of Major Winthrop, judge-advocate, in the volunteer force, could not be treated as brevets in the Regular Army, reaffirmed. 17 Op. 46.

for

43. Surgeon-General - Appropriation medical treatment of paupers-Contracts for.The act of July 7, 1884 (23 Stat. 194, 220), making an appropriation "for the care, support, and medical treatment of 75 transient paupers, medical and surgical patients in the city of Washington, under a contract to be made with such institution as the Surgeon-General of the Army may select," etc., authorizes that officer, within the limits of such appropriation, to contract with one or more hospitals, as in his judgment will best fulfill its purposes. 18 Op. 33.

44. Surgeon-General.—The acceptance by a surgeon of the United States Army of an appointment as Chief of the Record and Pension Office of the War Department, with the rank and pay and allowance of a colonel, creates a vacancy in the former office. 20 Op. 427.

45. Assistant Surgeon-General — Appointment-What officers eligible.-A vacancy existing in the office of Assistant Surgeon-Gen

eral may be filled by appointing thereto any one of the surgeons with the rank of colonel or the chief medical purveyor (all of whom hold offices of the same grade in the medical corps as that of the vacant office), or by promoting thereto the senior officer in the Medical Corps having the rank of lieutenant-colonel, which is the next grade below. 17 Op. 465.

46. Same. No officer possesses an inchoate right to the vacant office of Assistant SurgeonGeneral. The senior surgeon among those holding the rank of lieutenant-colonel, however, has a right to the vacancy in the grade to which that office belongs; so that the office can not be filled by an appointee from an inferior grade other than himself. Ib. (469). 47. Quartermaster - General's assistantRank.-Section 11 of the act of March 2, 1899 (30 Stat. 979), takes from the four principal assistants of the Quartermaster-General the rank of colonel and the increased rank of the Quartermaster on the staff of the Commanding General of the Army, given them by the act of July 7, 1898 (30 Stat. 715). 22 Op. 381.

48. Inspector-General's Department.-The act of December 12, 1878 (20 Stat. 257), limits the nomination of brigadier-general in the Inspector-General's Department to the senior officer of that Department. Provisions of that act compared with those of section 1193, Revised Statutes, and distinction between them indicated. 17 Op. 2.

49. Paymaster-General-Ad interim appointment. A vacancy in the office of PaymasterGeneral, created by retirement, may be filled by an ad interim appointment or assignment under the provisions of section 179, Revised Statutes, said retired officer may be said to be "absent" within the meaning of that section. 19 Op. 500.

Department. 50. Paymaster's Relative rank in the Paymaster's Department of the Army, as between officers having the same grade and date of appointment and commission, was regulated by the act of March 2, 1867, 14 Stat. 434 (secs. 1219 and 1292, Rev. Stat.), and was determined by length of service as a commissioned officer, computed according to the provisions of that act. 17 Op. 10.

51. Same.-Except as between such officers as have the same date of appointment and commission, the matter of relative rank was left by that act to be governed by the