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.-16 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 claims 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 will be further apparent that should the Department undertake to adjudicate the question in favor of the party claiming that his patent rights are infringed, and make settlement accordingly, such action would not conclude the party who furnished the supplies to the Government in respect to the stipulation of such party to indemnify the United States. (b) With regard to contracts calling for the manufacture of mechanical devices according to Government specifications, the situation is entirely different. Here, the contractor does not claim the ownership' and control of a patent covering the device, but is merely manufacturing it according to Government specifications. It will be apparent that the provision that the contractor should indemnify the Government would have to be omitted from such a contract and, indeed, it would be entirely proper to insert in such a contract a provision that the Government would indemnify the contractor with respect to claims of owners of patents for infringement arising out of the execution of the Government contract. It was held by this office, in an opinion dated April 8, 1912, that such a provision might be inserted in a contract covering the manufacture of field baking ovens manufactured according to Government specifications (C. 25188, April 8, 1912). The Act of June 25, 1910, supra, discussed in the preceding paragraph, clearly gives, by implication, the right to manufacture or have manufactured for Government use any supplies covered by letters patent, giving, as it does, to the claimant the right to sue in the Court of Claims for a reasonable compensation for such use. Where a suit is brought against the contractor based upon the performance of the contract, notice should be given to the proper Department and a request made upon the Department of Justice to have the suit defended by the United States. Where claims are submitted to the Department by the owners of the patent, particularly if the claim is a doubtful one, the proper action to take with respect thereto, would be to decline to consider the claim on the ground that the Department is not equipped with the means to satisfactorily determine it, and that the claimant has a remedy in the courts. Where, however, the right of the claimant to a patent is clear and a contract can be made with the claimant for the purchase of the patent right, or for a license to manufacture and use the article for Government purposes, for a reasonable consideration, there would be no legal objection to such a contract with the claimant. The Act of June 25, 1910, has been construed by this office in a number of opinions as simply withholding the remedy provided therein, and as not affecting the prior state of the law with respect to patents invented by officers or employees of the United States. In the case of Crozier v. Fried. Krupp Aktiengesellschaft, 224 U. S. 290, 32 Sup. Ct. 488, 56 L. Ed. 771, the court after stating that prior to this enactment the power to sue the United States for redress for the infringement of a patent right "did not obtain unless from the proof it was established that the contract to pay could be implied-that is to say, that no right of action existed against the United States for a mere act of wrongdoing by its officers," said that the intention of the statute, as indicated in the title, was to create a remedy for this condition by giving claimants the right to sue in the Court of Claims. The court says: * * * "That is to say, it adds to the right to sue the United States in the Court of Claims already conferred when contract relations exist the right to sue even although no element of contract is present. In substance, therefore, in this case, in view of the public nature of the subjects with which the patents in question are concerned and the undoubted authority of the United States as to such subjects to exert the power of eminent domain, the statute, looking at the substance of things, provides for the appropriation of a license to use the inventions, the appropriation thus made being sanctioned by the means of compensation for which the statute provides." (c) Where an order is placed with a manufacturer under section 120, Act of June 3, 1916 (39 Stat. 213 [Comp. St. 1916, § 3115g]), for the manufacture of a mechanical device according to Government specifications, since the manufacturer is under a legal compulsion to comply with the order, no formal stipulation would be necessary to indemnify the manufacturer with respect to claims of owners of patents covering the device. The manufacturer could plead such legal compulsion by way of defense to any suit by the owners of the patents, and such owners would be remitted to the remedy given them by the Act of June 25, 1910, supra. Here, as in the preceding paragraph, where the right of the claimant to the patent is clear, and it is deemed to the interest of the Government, a contract may be made with the owner of the patent covering the right to manufacture or have manufactured the patented device for the uses of the Government. 3. It may be added that it was held by the Supreme Court in the case of Crozier v. Krupp, supra, that no injunction would lie against any officer of the United States in respect to the manufacture or use for the Government of a patented invention, the law having provided a method whereby the owner may obtain compensation. [Signed] E. H. Crowder, Judge Advocate General. 24. CIVILIAN CLAIM FOR DAMAGE DONE BY SOLDIERS Articles of War LIV. 4th Ind. War Department, J. A. G. O., March 5, 1918.-To the Adjutant Gen eral. 1. Returned. The papers in reference relate to a claim of Mr. Lemly, a civilian, against Private C. V. Goldman, Battery A, 140th Field Artillery, for damages alleged to have been done to a Ford truck on December 28, 1917, at Jackson, Mississippi. On January 4, 1918, a board consisting of Lieutenants J. A. Ellard, H. E. Stephenson and C. W. Crisler, was appointed to investigate and fix the amount of damage. The board sat, took evidence, and fixed the amount of damages at $15, to be paid to the claimant out of the pay of the soldier. The claimant was dissatisfied with the award and addressed a letter to the Adjutant General of the Army requesting that a new board be appointed to make a re-examination. The Division Inspector of the 39th Division was thereupon directed to and did make an investigation, and |