" cadets," p. Rank and pay of officers on retired list.-Hereafter there Benefits of actual service, whether as regular or volunteer.— Insufficiency of appropriation for pay of officers, how made up.-And should the sums appropriated for the pay of the officers on the active and retired lists of the Navy be insufficient, then and in that case the Secretary of the Navy is hereby authorized to use any and all balances which may be due or become due to "pay of the Navy" from the other bureaus of the Department for that purpose. (a) 22 Stat. L. (a) Title midshipman changed to ensign.-The act of March 3, 1883, provides for ninety-one midshipmen, the title of which grade is hereby changed to ensign, and the midshipmen now on the list shall constitute a junior grade of, and be commissioned as, ensigns, having the same rank and pay as now provided by law for midshipmen, etc. Admiral, in section 1362, Revised Statutes, edition 1878, expresses title, rank, and grade, as also does viceadmiral. Rev. Stat., 8. 1362; 16 A.G.Op., p. 417; Wood v. U.S., 15 C.Cls.R., 151; cf. Ruther ford v. U. S., 18 C. Cls. R., 339; McClurev.U. S., id., 347. Rev. Stat., s. 16 C. Cls. R., 145. Advanced for gallantry, etc.-Any officer of the Navy may, 1506: 20 Stat. L., by and with the advice and consent of the Senate, be ch. 260, p. 144 advanced, not exceeding thirty numbers in rank, for emi- Young v. U. S., nent and conspicuous conduct in battle or extraordinary heroism. The statute cited adds: "And the rank of officers shall not be changed, except in accordance with the provisions of existing law, and by and with the advice and consent of the Senate." Advancement in rank under this section is not one of the cases within Revised Statutes, sections 1561 and 1562, entitling the officer to pay from a date anterior to his commission. 1579; Herbert v. U.S., 21 C.Cls.R., 53. U.S., 20 C.Cls.R., Apothecary, rations for.-An apothecary in the Navy doing Rev. Stat., s. detail duty at the marine barracks is not "attached to the ordinary of a navy-yard" and is not entitled to a daily ration under this section. (a) "Ordinary of a navy-yard.”—“Ordinary of a navy-yard" (a) Button v. here refers to ships laid up in ordinary at a navy-yard, 423. and this section authorizes allowances of a ration to petty officers and seamen attached to and doing duty on shipboard, though not upon a seagoing vessel, but not to the apothecary of the Naval Academy when engaged on shore duty. ch. 396; 20 A. G. Appointments.-Under the statute cited the vacancies in the Act Mar.3, 1889, lowest grade of commissioned officers in the Line and Op., 615, Olney, Marine Corps must be filled from the final graduates of June 10, 1893. the Line and Marine Corps at Annapolis; so also as to vacancies in the Engineer Corps. Vacancies in the Line and Marine Corps can not be filled from the Engineer Corps division, vice versa. 1754; 19 A.G. Op., Honorably discharged sailors to be preferred for appointment Rev. Stat.. to civil offices.-"Persons honorably discharged from the 318, Miller, May military or naval service by reason of disability resulting 24, 1889. from wounds or sickness incurred in the line of duty, shall be preferred for appointments to civil offices, provided they are found to possess the business capacity necessary for the proper discharge of the duties of such offices." Duty of those making appointments to give their preference.— By the section cited it is made the duty of those making appointments to civil offices to give a preference, other things being equal, to the class of persons named in that section; but the matter of capacity and personal fitness for the place is for the determination of the appointing power. Appointment of cadets.-A cadet, nominated to the Naval 21 A.G. Op.,342, Academy upon the recommendation of a Member of the 1896 10 A.G.Op., House of Representatives who, since the recommenda- 46, Bates; 10 id., tion and nomination, has been unseated by contest of election, can not be lawfully deprived of his place if he passes his examination. (a) Notification of vacancy.-The Secretary of the Navy is (a) Rev. Stat., not to revoke such a nomination and notify the newly seated Member that a vacancy occurs. He has no right to call for a new recommendation, except under the section cited, when the candidate fails to pass his examina Harmon, May 7, ,494; 21 id., 164. 8. 1514. by act July 26, 1894 (2 Supp., 206); Rev. Stat., 8.1516. 46. (b) Amended (b) Recommendation for appointment.-The notice provided for by section 1514, cited, as amended, was intended to be given to the Member of Congress actually sitting, and the recommendation provided by said section was intended to be made by such Member, and action duly taken thereon should not be affected by any subsequent event, except the failure of the nominee to pass his examination. (e) 10 A. G. Op., (c) Rights of Members of Congress.-Until a decision is made which unseats them Members of Congress whose seats are contested are considered to be in all respects endowed with the same rights, powers, and privileges as other Members. ch. 186; 21 A. G. Op., 164, Olney, Apr. 24, 1895. Act Mar.2,1895, Recommendations for appointment.-The proviso to the naval appropriation act cited, permitting and authoriz ing every Representative or Delegate in Congress "whose district or Territory is not now represented at the Naval Academy" to make recommendation on or before March 4, 1895, of a candidate for appointment as a cadet at the Naval Academy of the United States, was intended to apply to Members of the then existing Fifty-third Congress. Rev. Stat., 88. 1513, 1514. Act Aug. 3, 1886, ch. 849; 19 A. G. Op., 235. To be valid, it was essential that a recommendation should be made before 12 o'clock noon of March 4, 1895; and, in consequence, these recommendations considered in the opinion are held to be ineffective to deprive the successors in office of the signers of the recommendations of the general privileges granted to them by the sections cited. Armament, naval vessels.-The words "exclusive of armament," as used in the first section of the act cited, are not to be understood as excluding the offensive armament, such as guns, torpedoes, etc., only; the term "armament" comprehending, besides those articles, such shields and protections as are directly and necessarily connected with the efficient and safe working thereof. Rev. Stat., s. Arrears, officers in.-A naval officer in the service of the 1766; 2 A. G. Op., 420, 593. Government is not deprived of his right to the rations allowed by law, or the amount of money for which they may be commuted, although he is in arrears to the United States. 1624; Articles for the Government of the Navy, 24, 43, 44; 19 A. G. Op., 472, Miller, Jan. 18, 1890. Rev. Stat., 8. Arrest, two may be made in an emergency.-Upon consideration of the articles and statute cited for the government of the Navy: Held, That there may be two arrests in an emergency, or upon discovery of the alleged wrongdoing, with a view to a preliminary examination, and, if necessary, the formulation and specification of charges. (a) Arrest for trial.-Held, further, That article 43 in the provision declaring that "the person accused shall be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest," has ref erence to the arrest for trial, and not the arrest in the first instance. 1624; re Bogart, 2 Sawyer, 396; Rev. Stat., s. Articles for the Government of the Navy.-Congress has constitutional power to provide for punishment of offenses in the naval service by courts-martial without indictment or jury trial. Green v. U. S., 9 Op., 410. Charges preferred by others than the Secretary.-The restric- Art. 43; 4 A. G. tions of the article cited apply only to cases of charges preferred by others than the Secretary of the Navy. Commissioned officers.-"Commissioned officers" here in Art. 39; 10 A. clude volunteer naval officers appointed under the act G. Op., 522; act July 24, 1861. cited. (a) Noncombatants qualified to serve on courts-martial.- (a) Winthrop's Chaplains, surgeons, paymasters, and other noncombat. Mil. Law, vol. 1, ant officers, being commissioned officers with fixed rank, are qualified to act as members of a court-martial. (b) Irregularity of court-martial.-A sentence of dismissal, (b) 7 A. G. Op., imposed by an irregular court-martial, when approved note to s. 1342. and carried into effect, is a consummated fact, whether legal or not, and the officer convicted can only be restored to the service by appointment. Even if the court had no authority to exclude him under the circumstances, the irregularity could not be taken advantage of after its action is approved. p. 88. 98; 6id., 369. See Hoover, 20 How., (c) False imprisonment, action for.-When the court-martial) Dynes v. having jurisdiction over the subject-matter finds a sea- 65, 83. man charged with desertion guilty of attempting to desert, an action of trespass for false imprisonment will not lie against the ministerial officer who executes its sentence. It is only where the court has no jurisdiction of the subject-matter, or, having jurisdiction, violates some rules adopted by law for its proceedings, whereby they are rendered coram non judice, that such an action will lie. (d) Depositions objectionable.-Naval courts-martial are not (d) 2 A. G. Op., empowered to dispense with the attendance of witnesses 343. and receive depositions if the officer who preferred the charges objects. Art. 5; 10 A. G. Op., See 9 Corrupting a marine guard.-The offense of corrupting a marine guard by bribery may be punished by imprison- 158. ment in the penitentiary of the District of Columbia, at hard labor, for a term of years, that punishment not being against the usages of the service. Courts-martial.-Civil engineers in the Navy are subject to 15 A. G. Op., the jurisdiction of naval courts-martial. 165. v. (a) Secretary may reconvene.-The Secretary of the Navy, (a) Smith . after a naval court-martial has returned its proceedings S.,167. to him and he has adjourned it until further orders, may reconvene it to consider its proceedings. Lively, 1 Gall., Damages for personal ill usage to captured crew.-A prize, Art. 17, The court may award damages for personal ill usage when 315. captors willfully injure a captured crew. Desertion, relief from.-Provision was made by the statute, Art. 6, 25 Stat. cited for the relief of certain appointed or enlisted men of the Navy and Marine Corps, who served in the late war, from the charge of desertion. L., p. 442, ch. 890. J., in Martin v. 31. Discretionary power.-"Whenever a statute gives a discre- Art. 24; Story, tionary power to any person to be exercised by him upon Mott, 12 Wheat, his own opinion of certain facts, it is a sound rule of con struction that the statute constitutes him the sole and exclusive judge of the existence of those facts." (a) Obedience to duty.-"Every public officer is presumed to (a) Id. act in obedience to his duty, until the contrary is shown." 23, 1800, 2 Stat. L., 45, art. 3; Wilkes v. Dinsman, 7 How., 89. (b) Act of Apr. (b) Punishment of refractory seamen.-The statute cited provides that a refractory seaman, if a private, may "be put in irons, or flogged, at the discretion of the captain, not exceeding twelve lashes; but if the offense requires severer punishment, he shall be tried by a court-martial, and suffer such punishment as said court shall inflict." Every successive disobedience of orders was a new offense, subjecting the offender to twelve additional lashes, at the discretion of the commanding officer; his judgment was conclusive as to whether or not the offense required a severer punishment; and he could not only cause corporal punishment to be inflicted, but might resort to any rea sonable measures necessary to insure obedience, and even imprison the refractory party on shore, if he did so without any malice. p. 603; act July (c) 12 Stat. L., (c) Flogging.-The later statute cited says that "in no case shall punishment by flogging be inflicted, nor shall any court-martial adjudge punishment by flogging." 17, 1862. Art. 49: U.S.. Act abolishing not penal.-In the case cited it was held that the act of 1850, abolishing flogging in the Navy and in vessels of commerce, was not a penal statute on which an indictment could be founded. Cutler, 1 Curtis, C. Cls. R., 501; 12 Stat. L., p. 603, forbidding flogging; 17 Stat. L., 261, word "corporal stricken from art. 45. 153: Dinsman v. Wilkes, 12 How., 390. See also Jecker v. Montgomery, 18 How., 110, 123, where the rule laid down in Dinsman v. Wilkes is followed. (d) 5 Stat. L. (d) Detaining a marine after expiration of enlistment.-Under the act of March 2, 1837, authorizing the commander of a squadron to detain a marine, if in his opinion public interest required it, after the term of his enlistment had expired, the commander's opinion on the question of public interest was conclusive, and if the marine did not conform thereto, he was subject to punishment. The commander was also the judge of the degree of severity of punishment necessary to suppress disobedience and insubordination, and he was not liable to an action for mere error in judgment, even though the jury were of the opinion that milder measures would have accomplished the object. But he was bound to exercise his best judg ment and to act conscientiously and without malice. (e) Art. 19, 21 (e) Enlisting deserters, minors, etc.--The statute cited amends Stat. L., p. 338; 88. Rev. Stat., sections 1418, 1419, and 1420 of the Revised Statutes by striking out the word "fifteen" and substituting the word "fourteen." The original statute limiting the age to "sixteen" was amended by act of May 12, 1879, cited, to "fifteen," and then as above. Both statutes cited adds the words "punished as a court-martial may direct." (f) Art. 22; 16 (f) Jurisdiction of courts-martial. This does not confer A. G. Op., 578. 16 A. G. Op., 578. upon a court-martial general criminal jurisdiction, but only jurisdiction over those offenses not specified in the preceding articles, which are injurious to the order and discipline of the Navy. Under this article a naval general court-martial can take jurisdiction of an assault committed on board a naval vessel when she was under way in the Thames River, opposite New London, Conn., by a coal heaver in the naval service upon a second-class fireman in such serv. ice, from the effect of which the latter died, and try the accused upon a charge of manslaughter, |