submitted a list of the scouts so engaged for the award of the Philippine campaign badge, and in that connection the question, here for decision, as stated in the sixth indorsement, arises:

"The question for decision is whether the fact that there were killed and wounded in the constabulary force satisfies the requirement as to their being killed or wounded on the side of the troops participating. Can the constabu lary be considered troops '?"

2. In the Compilation of General Orders, Circulars, and Bulletins, 1915, par. 68, it is prescribed:

"Upon completion of any action against an enemy in the Philippine Islands in which there have been killed or wounded on the side of the troops, each organization or detachment commander will have lists prepared in duplicate in the form prescribed of the officers and enlisted men under his command who were actually present and participated in such action, inclosing therewith a detailed report of the engagement, showing the organizations taking part and the casualities on the side of the troops. These lists will be forwarded through channels to the commanding general, Philippine Department, who will then forward them to The Adjutant General of the Army, with his recommendation as to whether or not the issue of the Philippine campaign badge is justified by the circumstances."

Members of the Philippine Constabulary are in no sense a part of the military forces of the United States. The constabulary is essentially a domestic police force. It derives whatever power it possesses to maintain law and order from the Philippine Commission, and whatever it does, it does under the civil and not the military authority. Its establishment and organization is provided for in section 36, act of February 2, 1901 (31 Stat. 748, 757). The question therefore logically arises:

Can the members of the Philippine Constabulary, an organization employed to maintain order and to increase the military efficiency of the Philippine Islands, be properly described and denominated "troops" as that word is legally and constitutionally defined?

3. The word "troops' is generally defined as a trained body of soldiers, as professional persons, to distinguish them from the untrained body of citizens generally known as the militia. This idea that "troops" are professional soldiers finds judicial recognition in Dunne v. People (94 Ill. 120, 138), where, in the course of the opinion it was said:

"The word troops' conveys to the mind the idea of an armed body of soldiers whose sole occupation is war or service in war to the Regular Army." 4. While the word "troops" imports and implies military training and skill, there is nothing in either the legal or the lexicographer's definition of the word, to confine its meaning solely to the regular or constitutionally organized military forces of the United States. In fact, the word in its natural meaning applies to any body of trained fighting men, irrespective of how or where they are employed and engaged. The mere fact that trained soldiers are fighting in a domestic police force, does not make them any the less skilled fighting men, nor would the mere fact that men were fighting as members of the Regular Army make them trained and skilled soldiers. They must be judged by what they accomplish, and their prowess and bravery must be determined by their conduct rather than by the grade or rank of the organization to which they belong. A member of the domestic police force may be, or, in fact, he may become, a trained soldier, a "trooper," according to his experience or the length of his service. There is no reason to say that members of the Philippine Constabulary are not "troops," as that word is usually understood. On the contrary, the presumption rising from their employment in the police force of the Philippine Islands, a body of men organized to maintain order and peace, and established shortly after the suppression of the insurrection there, is that they are skilled soldiers, picked because of their adroitness, their valor, and their knowledge of matters military, not only in the field of their operation, but also because of the many and various other reasons peculiarly prompting their selection.

While it follows that the members of the Philippine Constabulary are "troops" in the ordinary and natural meaning of that term, they are in no sense a part of the United States Army or any of its forces. They are simply trained soldiers belonging to a domestic police force, selected because of their valor and their knowledge of local conditions.

5. It is the opinion of this office that while the members of the Philippine Constabulary are not a part of the United States Army, and in no sense enlisted

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men in the military forces of the United States, they are, nevertheless, " troops," as that word is used at page 165 of the Compilation of General Orders, etc., supra, within the meaning of the phrase "in the field against an enemy, in an action in which there have been killed or wounded on the side of the troops participating." And it is further the opinion of this office that, quite irrespective of whether the members of the Philippine Constabulary are troops within the meaning of the order cited, those of them who were killed or wounded In the engagement at Bayan Cotta, Mindanao, on July 26 and 27, 1917, were "killed or wounded on the side of the troops participating" in that engagement, and that the members of the Philippine Scouts, so taking part therein are entitled to be awarded the Philippine campaign badge commemorating their services in that action.

CONTRACTS: Effect on Penalty Clause of Delay Caused by Order of Fuel Administrator.

No penalties or liquidated damages for delayed performances should be assessed against a Government contractor for a delay in the completion of his contract caused by the closing of his plant under orders of the United States Fuel Administrator, and if he was already in default at that time the period during which his plant was so closed should be excluded in the assessment of penalties for delayed performances. It is immaterial that the contract makes no provision for excluding penalties in such a case, since impossibility resulting from Government action is a well recognized exception to the general rule that subsequent impossibility of performance is not an excuse for a breach of contract.

166.

War Department, J. A. G. O., February 8, 1918.-To the Secretary of War. 1. The views of this office are desired with reference to the recommendation of the Acting Chief of the Coast Artillery Corps that the disbursing officer, torpedo depot, Fort Totten, N. Y., be authorized to

"remit the penalties which accrued during the five days when the plant of the C. & E. Electric & Manufacturing Co. was closed, due to orders of the Fuel Administrator."

The receiver of said plant is under contract with the Government to deliver 800 automatic anchors, but half of which have been completed. The date fixed by the contract for the final completion has expired, but the contractor is making deliveries weekly under penalties for delayed deliveries. The request is that no penalties be assessed for the five days, January 18 to 22, inclusive, during which the plant was closed by order of the Fuel Administrator. The disbursing officer, torpedo depot, Fort Totten, N. Y., has replied to a request of the receiver that no penalties be assessed for this period, to the effect that upon close reading of article VII of the contract he finds that he is without authority to allow credit for these delays; and the contractor has appealed to the Secretary of War, asking:

"Can you find a way to make payment for the penalties now being withheld by the disbursing officer for this five-day period?”

2. While there is nothing in the contract which would authorize the disbursing officer to allow credit for the five days during which the plant of the contractor was closed by orders of the Fuel Administrator, it is the opinion of this office that no "penalties" or liquidated damages should be assessed for this period, in view of the settled principle of law that parties are not supposed to contract against the provisions of law or Government action taken under authority of law. Thus

"To the general rule that a party to a contract is not discharged by subsequent impossibility of performance there is an exception where the performance becomes impossible by law, either by reason of (1) a change in the law, or (2) by some action by or under the authority of the Government. In such cases the promisor is discharged." (9 Cyc. 629, 630.)

Where, as in this case, performance is suspended by governmental action taken under authority of law, the principle would excuse the contractor from being mulcted in damages for the delay occasioned thereby. I concur, therefore, in the recommendation that the disbursing officer be authorized to exclude the five days under consideration in assessing the penalties for delayed performance of this contract.

PAY AND ALLOWANCES: Commutation of Rations to Nurses at Base Hospital.

Under the provisions of the Army appropriation act for the year ending June 30, 1918 (40 Stat. 40), it is proper for the camp quartermaster at a National Guard camp to pay to the surgeon of the base hospital commutation of rations for nurses, male and female, stationed at such hospital at a rate of 40 cents per ration when it appears that rations in kind can not be as economically issued.

245.8.

War Department, J. A. G. O., February 8, 1918.-To The Adjutant General. 1. By the papers in reference the acting quartermaster at Camp Shelby, Miss., submits the question whether he is justified in paying the surgeon of the base hospital for commutation of rations for nurses, as more particularly appears in this request, as follows:

"Reference decision of the Judge Advocate General of November 7, 1917, matter of commutation of subsistence to Army nurses on duty at base hospitals of cantonments or camps of the National Army, does this decision apply to National Guard camps? Have been paying the surgeon of the base hospital commutation of rations for nurses at rate 40 cents per day per nurse. Value of garrison ration has been in excess of 40 cents per day, excepting one month, since camp started. If any action is necessary wire instructions. In future, unless advised to the contrary, nurses will be furnished rations in kind.”

2. The opinion of this office, under date of November 7, 1917 (1 Ops. J. A. G. 210), as well as a later opinion of this office, under date of January 26, 1918 (Ops. J. A. G. 246.84), relating to the payment of commutation of subsistence and of quarters to nurses in “field service,” and their right to such commutation where they are specially assigned to duty in places where there are no public quarters available, have no application and in no sense affect the present inquiry, And a detailed reference and discussion of the facts and principles there involved would serve no good purpose in answering the question here presented. 3. There are statutory provisions regulating the payment of commutation of rations for nurses to the surgeon of the base hospital at the rate of 40 cents per day per nurse. These provisions are found in the Army appropriation act for the year ending June 30, 1918 (40 Stat. 40, 50). Provision is there made for the allowance of commutation of rations:

*

"At the rate of 40 cents per ration; ** enlisted men and male and female nurses when stationed at places where rations in kind can not be economically issued, * of commutation of rations in lieu of the regular established ration for members of the Nurse Corps, female, while on duty in hospital, at 40 cents per ration, to be paid to the surgeon in charge."

*

4. Clearly, under this provision it is proper for the Quartermaster's Department to pay to the surgeon at the base hospital the commutation of rations allowed to nurses.

5. It is the opinion of this office that the acting quartermaster at Camp Shelby, Miss., was justified in paying to the surgeon at the base hospital there commutation of rations for male and female nurses at the rate allowed in the act of May 12, 1917, supra; and that he should be instructed that the payments so made for such commutations were clearly in accordance with the law gov erning such matters.

CIVILIAN EMPLOYEES: Right to Pay where Employment Prevented by Action of Fuel Administrator.

Civilians employed by the Government at factories in connection with the inspection and shipment of supplies for the Government are entitled to be paid compensation for days on which they performed no service by reason of the factories being closed by order of the United States Fuel Administrator, if so employed upon a monthly or per annum basis of compensation. Such employees are in a duty status at all times within their employment period so long as they hold themselves in readiness to perform the dutes of their positions and they continue in such duty status and are entitled to their usual pay even though the Government prevents them from performing such duties. Those employed on a per diem basis are entitled to receive pay only for the days on which they

work and for such holidays as the law grants pay for without work. Consequently, if in the present case the per diem employees were entitled under regulations of the War Department to leaves of absence with pay, the time during which they were unable to perform duty by reason of the closing of the factories, as stated, may be charged up to their annual leave and that they may be paid as employees on leave of absence with pay, but not otherwise. (See 22 Comp. Dec. 425, 426.)

230.

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War Department, J. A. G. O., February 9, 1918.-To the Secretary of War. 1. The opinion of this office is requested whether civilian employees, such as inspectors, checkers, timekeepers, laborers, etc., employed on a monthly or per diem basis" at factories in connection with the inspection and shipment of supplies for the Government are entitled to be paid compensation for days on which they perform no service by reason of the factories being closed by order of the Fuel Administrator. It is stated that some of these employees are regular classified civil service employees and others are employed in a temporary status pending their appointment through competitive civil service examinations or until they can be replaced by selections from the civil service registers.

2. In the consideration of this question it is the view of this office that the employees should be divided into two classifications only, namely, those employed upon a monthly or per annum basis of compensation and those employed upon a per diem basis of compensation. With reference to the former, they are in a duty status at all times within their employment period; that is, from the time of the consummation of their appointment until their discharge or resignation, so long as they hold themselves in readiness to perform the duties of their positions; and if the Government through the closing of the factories or the place of business where they are employed prevents them from performing their duties, I am of the opinion that they nevertheless continue in a duty status and are entitled to their usual pay.

3. With reference to the per diem employees, as they are entitled under the terms of their employment to pay only for the days they work except in the case of regular per diem employees who may be entitled under regulations to annual leave with pay, they are not in a duty status except when they are actually employed at work, nor are they entitled to compensation for days when they do not work unless as just stated they are entitled to and are granted leave of absence with pay under regulations. In his decision of February 28, 1916 (22) Comp. Dec. 425, 426), the Comptroller of the Treasury had under consideration a case analogous in principle, the question being whether permanent per diem employees of the Engineer Corps at large were entitled to pay for April 15, 1915, when by Executive order, the executive offices of the Government were closed in memory of the fiftieth anniversary of the death of President Lincoln. In that case the Comptroller said:

Per diem employees in the field receive pay without work for such holidays only as the law grants pay therefor without work. They receive pay for other days if they work. An order can stop work, but the law says when pay accrues without work. No law gives a per diem employee pay for a day his work is stopped by order. He is paid for the days he works and only for such days he does not work as the law has granted gratuity pay therefor.

"In the present case those employees who worked on April 15, 1915, were entitled to one day's pay and no more; those employees who did not work on that day were not entitled to any pay. The order in question did not purport to grant pay not allowed by law nor to require these employees to suspend work.” If in the present case the per diem employees were entitled under 1egulations of the War Department to leaves of absence with pay, it is the view of this office that the time during which they were unable to perform duty by reason of the closing of the factories, as stated, may be charged up to their annual leave and that they may be paid accordingly as employees on leave of absence with pay, but not otherwise.

DISCHARGE: Effect of Delivery of Certificate of Discharge by Mistake to One for Whom It Was not Intended.

A certificate of discharge intended for one soldier, but through mistake delivered to another soldier of the same name, can have no legal effect, since there never was any intention to discharge the man to whom the certificate

was delivered. The fact that it was delivered to him and acted upon by him in good faith would, of course, protect him against any charge of desertion or absence without leave, but would not have the effect of terminating his military status. Such discharge should be recalled from the man to whom it was delivered, and he should be notified to report for duty with his proper organization.

220.8.

War Department, J. A. G. O., February 9, 1918.-To The Adjutant General.

1. The papers in reference present the question of the effect of a certificate of discharge delivered to one soldier and intended for another soldier of the same name, the former, that is, the wrong man, being given final statements and directed to return to his home. The facts are: John J. Flannery, of 1892 Boulevard, Jersey City, N. J., was drafted into the service by local board No. 4 of that city on September 24, 1917, and sent to Camp Dix, N. J. He was assigned to the Tenth Company, Third Training Battalion, One hundred and fifty-third Depot Brigade, and later transferred to Battery B, One hundred and twelfth United States Field Artillery, Camp McClellan, Ala. On December 11, 1917, he was handed an honorable discharge, which contained the recital, “On account of dishonorable discharge, previous service." He did not understand why he was discharged, but supposed that his people had applied for his discharge on the ground of dependency or some other reason, and returned to his home, to find no such application had been made. He then started an investigation, and it developed that another man by the name of John Flannery had been sent to Camp Dix from Niagara Falls on October 16, 1917. It later appeared that this man had been previously in the service, had been dishonorably discharged, and sentenced to two years' confinement in the United States Penitentiary at Leavenworth, Kans., which sentence had been executed. After he was drafted and sent to Camp Dix he wrote a letter to the Secretary of War, calling attention to his previous record, and based thereon an objec tion to serving under the draft. He had been assigned to the Twenty-second Company, Sixth Battalion, Depot Brigade, Camp Dix. An order was issued directing his discharge, although seemingly it failed to identify the particular organization to which he had been assigned. Gen. Rafferty, Headquarters, Twentyninth Division, issued an order on December 4, 1917, directing the discharge of John Flannery, it being the intention to discharge the man who had previously been in the service and dishonorably discharged. Through error the discharge was made out and delivered to the wrong man. This man is anxious to return to and remain in the service, and the papers submitted in connection with your inquiry establishes beyond all possible question that he never was previously in the service. His home was in Jersey City, N. J., and from 1908 continuously until drafted he was employed by the Pennsylvania Railroad at Waverly Transfer, working in the capacity of checking. The other John Flannery enlisted May 20, 1914, was dishonorably discharged October 28, 1915, and sentenced at that time to two years in the United States Penitentiary at Leavenworth, Kans. 2. This is simply the case of a certificate of discharge intended for one man through error delivered to another. There never was any intention to discharge the man to whom the certificate was delivered; hence it could have no legal effect. The fact that it was delivered to him and acted upon by him in good faith would, of course, protect him against any charge of desertion or absence without leave, but would not have the legal effect of terminating his military status.

3. It is therefore recommended that the certificate of discharge be recalled from the possession of John J. Flannery, to whom it was delivered, and that he be directed to report to duty with his proper organization.

DISCIPLINE: Immaterial Error.

Upon a trial by court-martial the accused pleaded guilty to one of several specifications and not guilty as to others. The president of the court failed to make the explanations required by Manual for Courts-Martial, paragraph 154 (d). There was insufficient competent evidence, or no such evidence, as to the offense to which the accused pleaded guilty, but ample and sufficient evidence as to the offense or offenses to which he pleaded not guilty. Held, that