18. ACQUISITION OF CANTONMENT SITES-STATE JURISDICTION

Public Property VII A.

Public Property II A.

February 6, 1918.

From: Office of the Judge Advocate General.

To: The Division Judge Advocate, 86th Division, Camp Grant, Rockford, Illinois.

Subject: Jurisdiction over cantonments-condemnation of lands for military purposes.

1. In your report of November 10, 1917, you request information on certain questions which, with the answer to each immediately thereunder, are as follows:

Question: "3. There is need for an authoritative decision as to the jurisdiction of the United States over lands leased for cantonment sites and as to the extent that States retain jurisdiction in such cases." Answer: As the lands for these sites have not been purchased with the consent of the State, the United States has not acquired exclusive political jurisdiction thereover under the seventeenth clause of section Eight, article I, of the Constitution of the United States. Moreover, as the lands have not been acquired by the Federal government, but have been merely leased to the Government for cantonment sites, the United States would not have jurisdiction thereover under the statutes, if any, of the respective States ceding jurisdiction to the United States over lands purchased within the State for military purposes, inter alia. It would seem, therefore, that the State retains its political jurisdiction within the cantonment site, but the authority of the State is subject to this limitation, that it can not interfere with the legal activities of the Federal government or affect the property rights of that Government. The State can not, therefore, hamper the Federal government in its control over the cantonment site or impose any regulations restricting its use by the Federal government. These are matters within Federal control and are without the field of State jurisdiction. The State, however, retains its political jurisdiction, so that a murder committed within the cantonment site would be triable In the State courts, although, if committed by a person subject to military jurisdiction, it would also be within the jurisdiction of a general court-martial. According to the rule as to divided jurisdiction, the jurisdiction which first attaches retains its jurisdictional authority until it is relinquished or the ends of justice have been satisfied.

Question: "5. Personally, I should like to have any decision from your office or other sources, bearing upon the question of condemnation of lands for military use, other than the Act of July 2, 1917, if any such exist. This office has a great deal of work, in connection with leasing of this cantonment site and target range site, and decisions from other Divisions on questions in connection with like matters would be welcome."

Answer: The Act of July 2, 1917 (Public No. 26, 65th Cong. [40 Stat. 24]), is a reenactment, with modifications, of the Act of August

18, 1890 (26 Stat. 316 [Comp. St. 1916, § 6911]), broadening the prior act so as to include "military training camps;" to authorize the acquisition of temporary interests in the lands; to authorize the immediate possession thereof upon filing of the petition in condemnation; and to waive the requirements of Section 355, Revised Statutes (Comp. St. 1916, § 6902), during the existing emergency. This statute is applicable where the lands are to be acquired for the purposes stated; that is, "for the site, location, construction or prosecution of works of fortifications, coast defense and military training camps." It authorizes the acquisition of lands for these purposes, thereby supplying the authority to acquire the lands required by Section 3736, Revised Statutes (Comp. St. 1916, § 6889), which reads: "No lands shall be purchased on account of the United States except under a law authorizing such purchase."

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Where lands are to be acquired for purposes other than those specified in the Act of July 2, 1917, authority for their acquisition must be sought elsewhere. Thus, in the Signal Corps Act of July 24, 1917 (Pub. No. 29, 65th Cong. [40 Stat. 243]), authority is given "for the purchase or lease of land with the buildings thereon' quired under the authority for the "acquisition and development of plants, factories, and establishments for the manufacture of aeroplanes, aircrafts, etc." Similarly, the Act of October 6, 1917 (Pub. No. 64, 65th Cong. [40 Stat. 345]), confers authority under the Ordnance Department for the acquisition of storage facilities, etc. The Act of August 1, 1888 (25 Stat. 357 [Comp. St. 1916, § 6909]), authorizes the acquisition by condemnation proceedings as prescribed therein, where any officer of the Government is "authorized to procure real estate for the erection of a public building or for other public uses." It will be seen that the Act of July 2, 1917, is limited to the purposes specified therein; i. e., to lands required "for fortification, coast defense and military training camps;" and that where the required lands are needed for other purposes, authority, if any, for their acquisition must be found in other statutes; and that unless they. can be acquired by purchase, condemnation thereof, where there is authority to acquire the lands, is authorized by the said Act of August 1, 1888.

[Signed] E. H. Crowder, Judge Advocate General.

19. STOPPAGE OF GROUP PAY FOR TORTS

Articles of War LIV.

4th Ind.

War Department, J. A. G. O., February 15, 1918.-To the Adjutant

General.

1. By the preceding indorsement there is referred to this office for remark a claim growing out of certain damages to the crops of Mr. G. N. Stedman of Spartanburg, South Carolina, inflicted by certain unknown members of the military forces at Camp Wadsworth.

2. By the papers in reference it appears that the claim was inves

tigated by a board of officers appointed by the commanding general of the 27th division. The board found that Mr. Stedman's farm had been damaged to some extent by certain soldiers attached to Camp Wadsworth, but concluded that there was no definite proof of the extent of the damages, nor of the identity of the soldiers, who caused it, nor of the organization to which they belonged. Mr. Stedman claimed that the damages amount to $29.

3. It does not appear how the farm or the growing crops were damaged. In fact, there is an absence of particulars in this most important aspect of the question. It cannot, therefore, be stated whether the damages claimed were the result of unnecessary or willful trespass or whether it was the result of some careless or ordinary act connected with some necessary procedure for the betterment of camp conditions.

4. The rule is well settled that the United States cannot be held responsible for the torts of its officers or agents. Responsibility, if any, in such cases rests upon the individual or the individuals whose negligence or wrongful act or acts, caused the damages (Dig. Op. 1912, p. 242).

5. But wherever a complaint is made that the damages are caused by the tortious or criminal acts of persons subject to military law, then under the 105th Article of War (Comp. St. 1916, § 2308a), where the personal liability of any such person is established, provision is made for deductions sufficient to satisfy any such complaint; and it is further provided in the second and last paragraph of said Article 105, that:

"Where the offenders can not be ascertained, but the organization or detachment to which they belong is known, stoppages to the amount of damages inflicted may be made and assessed in such proportion as may be deemed just upon the individual members thereof who are shown to have been present with such organization or detachment at the time the damages complained of were inflicted as determined by the approved findings of the board."

So, where the organization or detachment to which the offenders belonged is known, then the damages may be proportionately assessed as is deemed just and equitable against the members of the detachment. And while it is stated that the organization to which the offenders, causing these damages, belonged is not known, it does appear from the findings of the board that the damages were inflicted "to some extent by certain soldiers attached to Camp Wadsworth." Therefore, it is pertinent to inquire: Is Camp Wadsworth a detachment? Obviously, it is.

6. It is the opinion of this office that no compensation can be made. by the Government to Mr. Stedman for the injury in question, but relief may be obtained by and through the commanding officer at Camp Wadsworth, agreeable to the procedure required and provided for in the 105th Article of War, and especially the last paragraph thereof, to which attention has been here specifically invited.

[Signed] S. T. Ansell, Acting Judge Advocate General.

20. WAR DEPARTMENT DISPOSAL OF UNITED STATES PROPERTY

Public Property IX 2.

AGO 400.701 (Misc. Div.)

BY GIFT

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