be erected over waters the navigable portions of which lie wholly within the limits of the State. 20 Op. 488. 65. Same. He is not authorized to approve or disapprove the location and plan of the bridge proposed to be erected over the Monongahela River at Bessemer, Pa. Ib. 66. The Secretary of War is authorized by section 3 [7] of the river and harbor act of 1892 (27 Stat. 110) to approve or disapprove the location or plans of a bridge duly authorized by a State legislature over waters wholly within the limits of a State. 20 Op. 479. 67. Where a State has granted authority to construct a bridge over a navigable river and the location and plan has been approved by the Secretary of War, the question whether the purchasers of such right are authorized to proceed is one which does not concern the Government. 21 Op. 293. 68. The Mississippi River in Minnesota, both above and below the Falls of St. Anthony, is a navigable river, not wholly within the limits of any particular State, and can not be bridged without the permission of the United States, expressed through the approval of the plans by the Secretary of War. 22 Op. 52. Opinions of November 19, 1892 (20 Op. 488), and January 18, 1896 (21 Op. 293), approved. Ib. 69. Approval of plans and location.-The Secretary of War would not be prohibited from approving the plan and location of a bridge across boundary waters if acts of authorization were passed by the leglislature of the States interested. 22 Op. 332. 70. Same.-Clause 2 of the proviso to section 3 of the act of July 18, 1892 (27 Stat. 100), does not limit the authority of the Secretary of War to grant permission for the construction of a work of this character to navigable waters which lie wholly within the limits of one State. Ib. 71. Rock Island Bridge-Power to grant revocable license.-The Secretary of War has no authority under existing legislation to grant a revocable license to the Davenport and Suburban Street Railway Company, or to any other street railway company, to use jointly with the Tri-City Railway Company the lower portion of the Government bridge across the Mississippi River, connecting the cities of Rock Island, Ill., and Davenport, Iowa. 25 Op. 389. 72. Same. Suggested, that since the question is not free from doubt such permission might be granted in order that the matter may be brought before the courts for judicial determination. Ib. 73. Bridge across Potomac Approval of location. It is not the duty of the Secretary of War under the act of February 28, 1891 (26 Stat. 789), incorporating the Washington and Arlington Railroad Company, to select or approve of the exact location of the bridge to be built across the Potomac River, but rather to approve the plans, specifications, and materials used and the manner of construction of such bridge. 20 Op. 549. 74. Same. It is his duty to refuse to approve the plans for the construction of a bridge at a place so far removed from the point indicated in the act as to be plainly beyond its scope. Ib. 75. Same. He has authority, however, to relocate the bridge as requested by the com pany, provided the place designated is a reasonable compliance with the terms of the act. Ib. 76. Repairs. In expending the appropriation in the act of March 2, 1889 (25 Stat. 963), "for repairs to draw pier of the Rock Island Bridge," the Secretary of War is not required to use all of the money appropriated or more than is necessary to do the work properly, bearing in mind that temporary repairs are not always most economical or expedient. 19 Op. 375. 77. Same. In case of doubt as to the necessity of any expenditure, due weight should be given to the judgment of the law-making power as expressed in the appropriation. Ib. 78. Same. The refusal of the Chicago, Rock Island and Pacific Railroad Company to contribute to the expense incurred any sum in excess of one-half of what would be necessary to place the existing pier in as nearly as practicable the condition it was in when the bridge was completed, does not relieve the Secretary of War of his duty to make the repairs directed by the above-named act. Ib. 79. Alteration of. It is the duty of the Secretary of War, under section 4 of the act of September 19, 1890 (26 Stat. 453), to ascertain whether, in his judgment, the Canal street bridge across the south branch of the Chicago River is an unreasonable obstruction to the free navigation of that river, and, in case he decides that it is, to proceed as directed by that statute and require such an alteration of the bridge as will render navigation through and under it safe, easy, and unobstructed. 20 Op. 101. 80. Same. Inasmuch as the plans for the proposed excavation in said river have not as yet been submitted to the Secretary of War for his approval and authorization, he is not now required by law to give the proceedings consideration. Ib. 81. Can not require change without compensating owner.-The Secretary of War is not authorized under the provisions of section 4 of the act of September 19, 1890 (26 Stat. 453), to require changes to be made in the bridge of the Baltimore and Ohio Railroad Company over the Ohio River at the expense of the owner without compensation, as this act applies only to such bridges as are constructed under the authority of an act of Congress which expressly reserved to Congress the right to require changes or modifications in the structure. 22 Op. 343. 82. Same-New bridge. If the company itself voluntarily prostrates its bridge with the intention of constructing another in its place, the Secretary of War has the right to prescribe conditions as to height, length of span, etc. Ib. 83. Alterations. The authority conferred upon the Secretary of War by section 18 of the act of March 3, 1899 (30 Stat. 1153), to require any bridge constructed over any navigable water of the United States which is an unreasonable obstruction to navigation to be so altered as to render navigation under it reasonably free, easy, and unobstructed, applies to bridges constructed under the authority of acts of Congress, provision having been made in the previous sections of that act for the case of structures of that nature unauthorized by Congress. 25 Op. 195. 84. Same. The power conferred upon the Secretary of War by section 18 of the act of March 3, 1899, is administrative in character and is a lawful delegation of power. Ib. 85. Same. The obstructions to navigation which the Secretary of War by section 18 of the act of March 3, 1899, is authorized to prevent or to remove at the expense of the owner, without compensation, are "material" obstructions. Ib. 86. The Secretary of War is authorized under the act of July 13, 1892 (27 Stat. 110), to permit the construction of a canal connecting Port Arthur, Tex., with Sabine Pass, a navigable water improved at the expense of the Government, provided such canal is one of the works provided for in section 3 [7] of said act. 21 Op. 531. 8. River and Harbor Improvement. 87. Contracts for completion.-The Secretary of War is not required by the river and harbor act of June 3, 1896, providing that contracts may be entered into by him for the completion of improvements named, to make such contracts, but he has a discretion to decline to make them in all cases where he is convinced that the public interest would not be subserved by making them. 21 Op. 420. 88. Discretion as to making improvements.-— The river and harbor act of June 3, 1893, making an appropriation for the protection of the east bank of the Mississippi River opposite the mouth of the Missouri River, leaves it to the discretion of the Secretary of War whether he shall make such expenditure or not. 21 Op. 391. 89. Payment.-The Secretary of War is authorized under the river and harbor act of September 19, 1890 (26 Stat. 426, 448), to draw his warrant in favor of the city of Galena, Ill., in payment for the improvement of the Galena River contemplated by that act, notwithstanding the fact that the certificate of such work is signed by the surveyor of customs for that port, instead of the collector of the port, as directed by that act, it appearing that there is no collector of the port at Galena, and that all the duties of that office are imposed upon the surveyor of customs. 20 Op. 700. 90. Power to suspend.-The Secretary of War has discretionary authority, under the act of June 3, 1896 (29 Stat. 213), and subsequent acts, making appropriations for the construction of a tidal canal in Oakland Harbor, California, to suspend the work on such improvement when the suspension will best inure to its ultimate completion, but he would not be justified in suspending the work if the only purpose was to delay its completion with the intention of abandoning it. 23 Op. 504. 91. Same-Suspension because of doubtful expediency.--A mere doubt as to the wisdom of carrying out a public work authorized by Congress does not justify its suspension and a refusal to complete it. Until such act is repealed it must be assumed to be the deliberate and continuing expression of the will of Congress, and respected as such. Ib. 97. The authority conferred upon the Secretary of War by the river and harbor act of June 13, 1902 (32 Stat. 371), to prosecute or complete, "by contract or otherwise," all river and harbor improvements which theretofore or therein were authorized to be constructed or completed under contract, vested in that officer the power to construct the dredge now nearing completion, for use on Lake Michigan, and to pay the cost of the same by allotment from the sums appropriated for the improvement of the various harbors of that lake. 25 Op. 145. 92. Work in excess of appropriation.-Under section 5 of the river and harbor act of June 3, 1896 (29 Stat. 235), which limits the amount that the Secretary of War can obligate the Government for in any fiscal year to $400,000, the contractor may perform in one year 98. The fact that Congress has in other the work for which the contract allows him instances made specific appropriations for three years to perform, and although he may dredging plants, can not be held to limit the thus earn a larger sum than the amount meaning of the words "by contract or otherstated he may not receive full payment there-wise,' as used in the act of 1902, by restrictfor under three years. 21 Op. 379. 93. Same. Where the total amount authorized to be expended is less than $400,000, contractors may be allowed to earn the amounts authorized to be expended in advance of the appropriation by Congress for such work. Ib. 94. Use of appropriation for improvement otherwhere than directed by statute.-The Secretary of War has no authority to use any portion of the $170,000 appropriated by the river and harbor act of March 3, 1899 (30 Stat. 1147), for the improvement of the Missouri River above Sioux City, for improvements at or in front of that city. 22 Op. 519. 95. Eads' contract.-If in the judgment of the Secretary of War justice either to the Government or to the contractors on the works at the South Pass channel of the Missis sippi River requires him to determine the 21 96. The words "is authorized" contained in that provision of the river and harbor act of June 13, 1902 (32 Stat. 342), which confers upon the Secretary of War the power to purchase or build a dredge for use in harbor improvement and maintenance in Lake Erie, while equivalent to the word "may," are used in a mandatory sense and are binding upon the executive, whose duty it is to carry them into effect. 24 Op. 594. ing the Secretary to the hiring of a dredge as the only alternative of a contract, nor to forbid that officer from using such dredge upon improvements other than those authorized by appropriations from which the moneys for its construction have been taken. Ib. b. Chief Clerk. 99. Authority to sign requisitions.-The act of March 4, 1874 (18 Stat. 19), authorizing the Secretary of War, when temporarily absent from the Department because of illness or from other cause, to direct his chief clerk to sign requisitions on the Treasury Department, is not superseded by the act of March 5, 1890 (26 Stat. 17), which provides for an Assistant Secretary of War. 24 Op. 646. 100. Same. During the temporary absence from the Department of both the Secretary of War and his assistant, the Secretary is empowered, under the act of 1874, to authorize the chief clerk of the Department to sign requisitions, etc., that act being still in force, at least within the limited scope here stated. Ib. CHIEF OF THE RECORD AND PENSION OFFICE. c. Generally. 101. A prisoner sentenced by a court-martial to confinement in a penitentiary of the United States should be conducted to the prison by the proper officer of the War Department. 21 Op. 204. III. Bureaus or Divisions. 102. Record and Pension Office, Chief of.The acceptance of an appointment as Chief of the Record and Pension Office of the War Department, with the rank, pay, and allowances of a colonel by a surgeon of the United States Army creates a vacancy in the former office. 20 Op. 427. 103. Same-Effect of the act.-Section 8 of the act of March 2, 1899 (30 Stat. 979), did not create a new office, but had the effect to change the rank, pay, and allowances of the Chief of the Record and Pension Division of the War Department to that of a brigadiergeneral. 22 Op. 480. 104. Same. The acceptance or nonacceptance by the chief of the new commission, with the added rank, under the above-named act, will not change his official status or in any manner affect him. Ib. 105. Same. Upon the approval of the act the chief of such division became entitled to the increased rank and pay without the necessity of a nomination by the President and confirmation by the Senate. Ib. 106. Same.-This act did not affect the office as a separate and distinct official position, but it remained the same as when established, to be filled in the same manner and with the same duties and obligations. Ib. 107. Same. When a vacancy occurs in this office, then the increase of rank, pay, and allowances provided by the act of 1899 will cease, and the person succeeding to said office will be entitled only to the rank, pay, and allowances of a colonel, unless there should be further legislation upon the subject. lb. 108. The volunteer pension branch of the War Department was not within the classified service, and positions therein can not now be classified, as that branch no longer exists, having been merged into the Record and Pension Division of that Department. 22 Op. 6. 109. Inspector-General's Department-Promotion. Where a right to an appointment or promotion in the Inspector-General's Department existed on a certain date but the appointment was not actually made until later, the office can not be held to have vested until the appointment was actually made. 25 Op. 591. 110. Same-The fact that such officer is allowed to pay for the higher grade from the date of the vacancy to the date of commission does not alter the situation. Ib. 111. Same-Rank and office are not identical.-The former is an incident of office and is used as a designation or distinction conferred upon an officer in order to fix his relative position with reference to other officers, or to determine his pay and emoluments. Ib. 112. Same. Such practice in the War Department rests upon the immemorial custom of that Department and not upon statutory authority. Ib. 113. Same.-A complicated chain of events considered and held that under the act of February 2, 1901 (31 Stat. 748), the office of lieutenant-colonel in the Inspector-General's department vested in Major Chamberlain on March 11, 1901, and that he was not entitled to be appointed to the office left vacant by the retirement of Colonel Knox on April 13, 1903. ib. IV. Clerical Force. 114. An army officer detailed for duty in a clerical position can not be considered as a member of the "classified service," and after separation therefrom can not be reinstated under Rule IX. 22 Op. 6. 115. Reinstatement of former clerk.-A soldiers' widow, formerly employed in the War Department under an appropriation for emergency clerical work made necessary by the war with Spain, who resigned from her position on December 31, 1900, which position was covered into the classified service by section 3 of the act of April 28, 1902 (32 Stat. 171), is eligible, under rule 9 of the Civil Service Regulations, to reinstatement in that Department. 25 Op. 618. 116. State. Rule 9, as amended, which provides for the reinstatement of a person separated, without delinquency or miscon duct, from a "competitive position," means the separation from a position "competitive" at the time of the request for reinstatement, and not that the position must have been competitive at the time of such separation. Ib. Opinions of June 23 and August 27, 1902 (24 Op. 81, 103), approved. Ib. WASHINGTON MONUMENT. Congress has made provision for the protection of the Washington Monument from chipping vandals by section 1 of the act of July 20, 1892 (27 Stat. 322), which provides "a penalty of not more than $50 for each and every such offense," and in the act of October 2, 1888 (25 Stat. 505, 533), whereby the Secretary of War is "charged with the custody, care, and protection of the Monument," and an appropriation is made for a custodian and other employees necessary for its care. 21 Op. 215. |