S., 34 F. R., 623.

charged with the expenditure of it may use so much as may be necessary with a view to the subsequent completion of the work if Congress shall provide therefor; but he can not bind the Government to pay any sum in excess of that appropriated.

(j) Leavittv.U. (j) Exception.-Where an appropriation has been made for a certain purpose, and a consul in a distant country is instructed by the Department of State to make purchases thereunder, such purchases are legal though it turns out a year and a half afterwards, when the consul's bill is presented, that the appropriation is exhausted.

(k) Shipman v.

R., 138.

U.S. 13. c. (k) Absolute authority to act.-Where the authority to contract for a work in behalf of the United States depends wholly upon an appropriation made for the purpose, no officer thereof can create a liability therefor beyond the sum appropriated, and a contractor can not receive more than was appropriated, no matter what the extent of the work; but when au act authorizes a thing to be done absolutely, and makes an insufficient appropriation or none at all, it is different.

235.

(2) 15 A. G. Op., (l) “Authorized by law."-A contract to have been authorized by law must appear to have been made either in pursuance of express authority given by statute or of authority necessarily inferrable from some duty imposed upon or from some power to the person assuming to contract on behalf of the Government.

(m) Rev. Stat., (m) Must be reduced to writing.-Contracts to bind the United States must be actually reduced to writing and signed by the contracting parties, the signing of the preliminary memoranda being insufficient.

8. 3744; Clark v. U.S.,95 U. S.,539; Solomon v. U.S., 19 Wall.,17; South Boston Iron Co. v. U. S., 118 U., S. 42; 18 Cl. Cls. R., 165; Lindsay's Case, 4 C. Cls. R., 359; Jones's Case, 11 C. Cls. R., 733; Steele v. U. S., 19

C. Cls. R., 181.

549.

(n) Burchiel's (n) Recovery in Court of Claims.-The contract is only made Case, 4 C, Cls, R., void as an executory one, and if the goods have been actually received and used by the Government their value may be recovered in the Court of Claims.

(0) Cobb v. U. (0) Contracts made in an emergency.—The provision requiring contracts made by the Departments named (War and Navy) in the section cited to be in writing and signed applies to such as are made in an emergency without advertising for proposals.

S., 18 C. Cls. R., 514, citing Clark v. U. S, 95 U. S. 539, and overseeing Cobb & Co.'s Case, 7 C. Cls. R.,

470.

Case, 5C. Cls. R.,

65; Henderson's

(p) Danold's (p) Extends to purchasing agents and officers.-The statute cited extends not merely to purchasing agents, but to all officers in the War, Navy, and Interior Departments, including the secretaries themselves.

Case, 4 C. Cls. R.,

75.

torney-General,

August 19, 1892.

(q) Op. of At- (q) Advertisement for proposals and acceptance of proposal by the Navy Department not a contract.-An advertisement for proposals, a proposal from a bidder and its acceptance by the Navy Department do not constitute a contract. The common law rule respecting an offering and its acceptance being modified by section 3744 of the Revised Statutes, which requires that all contracts entered into by the Departments therein named shall be reduced to writing and signed by the contracting parties.

The Supreme Court has held (Clark v. U. S., 95 U. S., 542, and S. B. Iron Co. v. U. S., 118 U. S., 38), that contracts contemplated by that section do not become valid until executed in accordance with its requirements. Construction of vessels, rights and duties of the United States arising under contracts for.

Rev. Stat., 88., 2757, 4741; 19 A.

(a) Authority to build without provision for plans.-Where a Ibid., p. 244. statute authorizes the building of vessels by the Navy Department, but makes no provision for procuring the necessary plans and specifications therefor, it is to be construed as impliedly authorizing the head of the Department to procure such plans and specifications in the mode and manner which he shall deem best. Cooperation of revenue cutters with the Navy.—The revenue cutters employed in carrying out the order issued by G. Op., 505. President Lincoln to the Secretary of the Treasury, dated June 14, 1863, were, while so employed, cooperating with the Navy by order of the President; and if any of the officers or seamen thereof, during such employment, were wounded or disabled in the discharge of their duty, they became entitled to be placed on the Navy pension list at the same rate of pension and under the same regulations and restrictions as are provided by law for the officers and seamen of the Navy.

1891.

ch. 640; 20

Costs of suits.-The words "costs of suits" in the appropri-Act June 30. ation act cited relate to the ordinary taxed costs of suits A. G. Op., 49, and not to fees of counsel. Accordingly the fee of the Miller, Mar. 26, United States attorney for services in defending suits brought against certain naval officers for acts done by them in obedience to the orders of the Navy Department can not be paid out of that appropriation, but must be fixed by the Attorney-General and paid out of the appropriations for the payment of such special compensation as may be fixed by the Attorney-General for services not covered by salaries or fees. Courts-martial.-Courts-martial are lawful tribunals with like Art. 14, Rules and Regulations; jurisdiction as civil courts in cases within their cogni- Re Davidson, 22 zance; their proceedings, though erroneous, can not be F. R., 618; Re reviewed collaterally by habeas corpus, those in the Army White, 17 id., 723; Re McNey, 11 and Navy having surrendered their right of trial by the Sawyer, 25; 23 civil courts.

Blatch., 473; 21

F. R., 878; Ex parte Millegan, 4 Wall., 123; Ex parte Kearney, 7 Wheat., 38; Ex parte Reed, 100 U. S., 13; Ex parte Watkins, 3 Pet., 393; State v. Stillman, 7 Cold. (Tenn ), 341; Tennessee v. Hibdom, 23 F.R., 795; 20 Rep., 38; 11 A.G. Op., 297; Gould and Tucker, notes on U. S. Stats., s. 751.

(a) Writ of prohibition does not lie to, etc.-A writ of prohibi- (a) Smith v. tion does not lie to a court-martial to correct mistakes of Whitney, 116 U. law or fact within its jurisdiction.

S., 167.

Wakely. 2 Nott

& M. (S. C.), 410.

(b) Id.; State v. (b) Writ of prohibition does not lie to an executive officer.— Such writ does not lie to an executive officer like the Secretary of the Navy, not being a member of the court, but merely convening it.

Hoover, 20 How.,

(c) Dynes v. (c) Jurisdiction of, may be inquired into.-The jurisdiction of a court-martial may always be inquired into on habeas corpus.

65; Barrett v. Hopkins, 7 F. R., 312; 2 McCrary, 129; 12 A. G. Op., 128; Re Egan, 5 Blatch,, 319.

413; id., 506.

(d) 6 A.G. Op., (d) Soldier or officer offending criminally under civil law.If a soldier or officer does an act criminal under the civil law and military law, he is to be tried by the former in preference to the latter, under conditions and limitations stated. A discharge or conviction in the civil courts does not relieve him from responsibility to the military tribunals for the same offense.

(e) Holmes v. Sheridan, 1 Dillon, 531; Hill v. U. S., 9C. Cls. R., 178.

(e) Army contractors subject to.-Army contractors are subject to the rules of the section cited.

(f) Babbitt v. (f) Post traders subject to.-Post traders and sutlers are subject to the rules of the section cited.

U.S., 16C.Cls. R.,

202; 7 A. G. Op.,

323; 1 id., 276.

(g) Authorities (g)

same as under ƒ.

13, 48.

Cadets subject.-Naval cadets are subject to the rules of the section cited.

(h) 16 A. G. Op. (h) Civilian employee as quartermaster's clerk.—A civilian employed as a quartermaster's clerk is not subject to the jurisdiction of a court-martial.

(i) Id.

639.

(i) Superintendents of national cemeteries.-Superintendents of national cemeteries are not subject to the jurisdiction of a court-martial.

(j) 1 Com. D., (j) Statutes providing for trial by court-martial.-The revisers have placed certain enactments as Articles of War, which had not previously borne that name, regarding a statute providing for trial of an offense by court-martial as amounting to an article of war so providing.

(k) Rev. Stat., (k) Special counsel.-Special counsel may be employed by

8. 366: 18 A. G. Op., 135, Garland, Mar. 21, 1885.

21 A. G. Op, 195,

the Attorney-General, at the request of the Secretary of the Navy, to assist the judge advocate in the trial by court-martial, the compensation of such counsel (in the absence of other provisions) to be paid from the appropriation for the contingent expenses of the Navy. Such counsel should be commissioned by the Attorney-General under the section cited.

Rev. Stat.,8.,366; Counsel, employment of, for the United States.-In view of the provisions of the statute cited the Secretary of the Navy is not authorized to employ counsel in foreign countries to institute suit in behalf of the United States to recover for damages caused to a war vessel of the United States, but the case should be referred to the Department of Justice for attention.

Harmon, July 17, 1895; Rev. Stat., ss. 189, 357, 365; act June 22, 1870; 16 Stat. L., 162, s. 17; 130p., 583; 19 Op., 328; U. S. v. San Jacinto Tin Company, 125 U. S.,273,279,280; In re Neagle, 135 U. S., 65, 67.

Act Aug. 5, Credited with actual time of service. The opinion of Attorney-General Brewster, delivered June 22, 1883, says that "the provisions of the Navy appropriation acts, cited, requiring all officers of the Navy to be credited

1882; act Mar. 3, 1883; 17 A.G.Op., 555: case of BoatswainMcDonald.

with the actual time they have served as officers or enlisted men in the Regular or Volunteer Navy, etc., do not entitle such officers to any increased pay for services rendered by them prior to March 3, 1883."

Brewster, Jan. 20, 1885.

Cruisers, construction of.-The Secretary of the Navy may 18 A.G.Op., 101, assent to a modification of the contract for building the new cruisers where the interests of the Government will not be prejudiced or any statutory provision violated thereby.

8. 3648; 18 A. G.

(a) Payments for.-The statute cited does not preclude a (a) Rev. Stat., payment in any case where the money has been actually op, 105, Brewearned and the Government has received an equivalent ster, Jan. 22, 1885. therefor; its object is to prevent payment being made to contractors in advance of the performance of their contracts, whether for services or supplies. (b) Steel cruisers, construction of, authorized.

(b) 25 Stat. L., 472; 24 Stat. L., 7, 151, 154; 23 Stat.

Death of resident on naval reservation.-Where a resident, 19 A. G. Op.. 176, G. A. Jenks, on the naval reservation at Pensacola, Fla., died intestate Act. A. G., Aug. possessed of certain property which is in the hands of the 4, 1888. commandant of the yard: Advised, that the local probate court of the State may properly exercise jurisdiction over the case, and that on the appointment thereby of an administrator of the estate of the deceased the property in the hands of the commandant belonging to such estate should be turned over to the administrator. Deficient naval cadets.-Where certain naval cadets were Rev. Stat., ss. found deficient at the semiannual examination held at Stat. L., 285; act the Naval Academy in January, 1889, and without the Mar. 2, 1889; 15 recommendation of the Academic Board were granted 637: 19 A.G. Op., leaves of absence by the Secretary of the Navy with per 2, mission to report to the Superintendent of the Academy to join the next fourth class: Held, that the Secretary had no power to continue these cadets in the Academy without the recommendation of the Academic Board. Department, Navy.-Employees and salaries.

1519, 1525; 22

A. G. Op., 636,

302, Miller, May

1889.

23 Stat. L., 183, 413; 18 Stat. L., 11, ch. 4.

Feb. 9,

also 60 and 194

Departmental clerks, delegation of power. - Departmental, Act 1889, ch. 122, s. 1; clerks, messengers, and laborers are to be appointed and Rev. Stat., s. 169, removed by the head of the Department when not other- and 476; 21 A. G. wise provided by statute. This power can not be dele- Op., 355, gives gated, but must be exercised by the Secretary or Acting Harmon, May 26, Secretary.

Desertion, enticing seamen to commit, what constitutes the offense, and punishment therefor.

full references.

1896.

Rev. Stat., s. 1553; U. S. v. Thompson, 2 Sprague, 165.

Rev.Stat.,8.1621;

Olney, Apr. 19,

Detail for duty, Marine Corps.-The Secretary of the Navy, 26 Stat, L., 62; has authority to detail men to guard and protect property act Mar. 3, 1893 of the Government placed on exhibition at the World's 20 A. G. Op., 576. Columbian Exposition. The cost of transportation and 1893. sustenance of such detail must be paid from the fund provided for the Marine Corps and its subsistence, and is only limited by the consideration of the question whether

Op., 577, Olney,
April 25, 1893.

is

there are sufficient funds available for that purpose, as to which the Secretary of the Navy is the sole judge. (a) 20 A. G. (a) Subsistence of enlisted men.—The Navy Department authorized to pay for the actual subsistence of the enlisted men of the Navy employed in taking care of and preserv ing the stores and other Government property placed on exhibition at the World's Columbian Exposition under the supervision of the Navy Department in pursuance of law. The expenses necessarily accruing out of the transportation and subsistence of the marines detailed for that purpose may be paid from the fund provided for the Marine Corps and its subsistence.

1882, ch. 389, s. 4; Nathan Plummer v. U. S., 24 C. Cls. R., 517; Rev. Stat., s. 166; 27 Stat. L., 682, ch. 211; 20 A. G. Op., 250, Olney, Mar. 21, 1894.

Act Ang. 5, Detail of clerks.-It is competent for a head of a Department to alter the disposition among the various bureaus and officers of the Department of the clerks allowed by law as he may find it necessary and proper to do, taking care that in no case shall any such clerk be paid from any appropriation made for contingent expenses or for any specific or general purpose, unless such payment is specifically provided for in the law granting the appropriation.

But by act of May 28, 1896 (29 Stats. L., 140, sec. 3) all details must be made by written order of the head of the Department, and must not exceed one hundred and twenty days; but may be renewed from time to time. Rev. Stat., s. Detail of officers on retired list.-In time of war the Presi1413, 1465.

704.

1422; 18 Stat. L., 484.

dent, by and with the advice and consent of the Senate, may detail officers on the retired list for the command of squadrons and single ships, when he believes that the good of the service requires that they shall be so placed in command.

(a) 1 Com. D., (a) Revisers' views.-The revisers regarded these provisions as referring to the late war and as not adapted to the conditions of the service at the time of the revision. Rev. Stat., s. Discharge, manner of.-The statute of March 3, 1875, chapter 155, inserts" or Pacific" after "Atlantic" in second and last lines; inserts, after "States," in third line, "as their enlistment may have occurred on either the Atlantic or Pacific Coast of the United States;" substitutes "enlistment" for "service" in fifth line; strikes out "very" in the sixth line, and adds at end of the section:

All persons enlisted within the limits of the United States may be discharged, on the expiration of their enlistment, either in foreign port or in a port of the United States, or they may be detained as above provided beyond the term of their enlistment; and that all persons sent home, or detained by a commanding officer, according to the provisions of this act, shall be subject in all respects to the laws and regulations of the government of the Navy until their return to an Atlantic or Pacific port and their regular discharge; and all persons so detained by such officer, or reentering to serve until the return to an Atlantic or Pacific port of the vessel to which they belong, shall in no case be held in service more than thirty days after their arrival in said port;