1229, 1230; 13 A. G. Op., 44. when on sea service, commanders of squadrons, or of clerks to commanders of vessels; and an officer not above the grade of lieutenant shall be detailed to perform the duties of secretary to the Admiral or Vice-Admiral when on sea service, and one not above the grade of master to perform the duty of clerk to a rear-admiral or commander, and not one above the grade of ensign to perform the duties of clerk to a captain, commander, or lieutenantcommander when afloat: Provided, That the secretaries and clerks in service on July first, eighteen hundred and seventy-eight, on vessels abroad, shall continue as such until such vessel shall return to the United States on the termination of its cruise. Rev. Stat., ss. Commissioning, displacing, and dismissing officers by the President. One is not an officer in the Army or Navy until the commission appointing him such has been signed by the President, although his nomination has been confirmed by the Senate. (a) Keyesv.U. (a) Power to displace an officer.-The President has power to displace an officer, with the advice and consent of the Senate, by appointing another in his place. S., 109 U. S., 336; (b) 12 A. G. (b) President's power to dismiss.-This statute was held by the Attorney-General (XII Opins. 4) not to be unconstitutional, in that it was not "obnoxious to the objection that it invades or frustrates the power of the President to dismiss an officer." More serious objections to its constitutionality are believed to be: 1, that it authorizes the subjecting to military trial of a civilian; 2, that in restoring an officer to the Army it substitutes the action of a court-martial for the appointing power of the President. (c) 16 A. G. (c) Filling vacancy confirms sentence of dismissal.-If an Op., 298; Kilburn v. U. S., 15 C. Cls. R., 41. (d) Corson V. U. S., 114 U. S., 619; 17 C. Cls. R., 344; Menimack v. U. S., 97 U. S., 426; 10 C. Cls. R., officer is sentenced to dismissal and the President fills the vacancy by appointment or nomination, this operates as a confirmation of the sentence. (d) Revoking order of dismissal.-The President can not revoke an order dismissing an officer * so as to enable him to regain his position and become entitled to its emoluments. 584: 4 A. G. Op., 8, 318; Montgomery's Case, 19 C. Cls. R., 370; 5id.,93; Miller's Case, 19 id., U. S., 18 C. Cls. 338; Mc (e) Discretionary power of President to dismiss.-The Pres- (f) Newton v. (f) Application for court-martial.-Such officer's application for court-martial must be made within a reasonable time. R., 435. 40, 29; 20 Stat. L., 253. Rev. Stat... Contracts, boilers, material for.-Material for steamboat boil3718; 6 A. G. Op., ers for the Navy may be purchased at the lowest market price without advertisement, provided that specifications are sent to the principal dealers and manufacturers and the inspection and tests are public. (a) 10A.G.Op., (a) Lowest bid.-The lowest bid may be accepted, if it sub 140. stantially complies with the law, notwithstanding it des ignates a different time for completing the contract than the advertisement fixed. 475. (b) "When time will permit."-The words quoted apply only) 4 A. G.Op., to such supplies as the wants of the service make it necessary to purchase for immediate use when there is no time to abide the delay of advertising. They do not apply to contracts to run through three years when there is on hand a sufficient quantity of the article for the present wants of the service. (c) 21 A.G.Op., 13, Olney, Apr. 27, 1894. (c) Terms of contract must be followed.-Contract for construction of battleship Indiana construed, and held that it was not competent for the Secretary of the Navy, under the existing contract, to pay to the contractors any part of the last three installments of the price of the vessel or of reservations from previous payments prior to the preliminary or conditional acceptance of the vessel; but that a supplemental contract might be entered into, modifying the terms and provisions of the existing contract. (d) To furnish provisions.-Contracts made by the United (d) Rev. Stat., States, through the Secretary of the Navy, to furnish Shaw, 1 Cliff., 317. provisions for the naval service can not be rescinded by the chief of the bureau having charge of such contracts and supplies without the sanction of the head of the Department. s. 421; U. S. v. (e) Must come within the terms of law.—A person who enters (e) Rev. Stat., 8. 3732; Collins's into a contract with an officer of the Government must Case, 15 C. Cls. look to the statute under which it is made and see that R., 35; 15 A. G. his contract comes within the terms of the law. Op., 124, 210, 239, 257; Floyd acceptances, Wall., 666, 680. 490. (f) Conditioned on further appropriations.-A contract) 4 A. G. Op., made by a Navy agent for piles to be used in a dry dock, to be delivered after Congress should make further appropriations, is not valid. 18. 7 (g) Head of Department may bind the Government.—Under ̧ (9) 9 A. G. Op., the section cited the head of a Department may bind the Government only in two cases (1) where the contract is expressly authorized by law, (2) where there is an appropriation already made large enough to fulfill it. In the first case, there is an express power to contract for the work; and, in the second case, there is an implied power to contract for so much work as the appropriation will pay for. 88. 3679, 3732. (h) Exception to the rule.-The two sections cited under (h) (h) Rev. Stat., should be construed together. Under the section 3732 the heads of the War and Navy Departments, in the absence of appropriations, are authorized to purchase or contract for clothing, subsistence, forage, fuel, quarters, or transportation, not exceeding the necessities of the current year. The section 3679 does not prohibit such 15 A. G. Op, contracts. The exception in section 3732 in favor of contracts or purchases in the War and Navy Departments for clothing, subsistence, etc., withdraws such contracts or purchases from the prohibition of section 3679, and they may be made, though there is no appropriation ade- 15 A. G. Op., quate to their fulfillment, if the necessities of the current year are not exceeded. 209. 124. (i) Specific appropriations.-If money has been appropri- (i) 4 A. G. Op., ated for a specific object, the head of the Department 600. 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. а U.S., 18 C. Cls. (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 an act authorizes a thing to be done absolutely, and makes an insufficient appropriation or none at all, it is different. 235. (7) 15 A. G. Op., (1) “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. (n) Burchiel's (n) Recovery in Court of Claims.-The contract is only made Case, 4 C. Cls, R., 549. 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. (q) Op. of At (q) Advertisement for proposals and acceptance of proposal torney-General, August 19, 1892. 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. 18 A. G. Op.,) 207, Garland, June 30, 1885; Also see p.same case, 240, reaffirmed. 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. 1890, ch. 640; 20 1891. 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 jurisdiction as civil courts in cases within their cogni- Re Davidson, 22 zance; their proceedings, though erroneous, can not be R., 618; Re reviewed collaterally by habeas corpus, those in the Army White, 17 id.,723; and Navy having surrendered their right of trial by the civil courts. Art. 14, Rules and Regulations; Blatch., 473; 21 Re McNey, 11 Sawyer, 25; 23 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. Whitney, 116 U. (a) Writ of prohibition does not lie to, etc.-A writ of prohibi- (a) Smith tion does not lie to a court-martial to correct mistakes of law or fact within its jurisdiction. 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. (c) Dynes v. (c) Jurisdiction of, may be inquired into.-The jurisdiction of a court-martial may always be inquired into on habeas Hoover, 20 How., 65; Barrett v. Hopkins, 7 F. R., 312; 2 McCrary, 129; 12 A. G. Op., 128; Re Egan, 5 Blatch., 319. 413; id., 506. corpus. (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. Sheridan, 1 Dil (e) Holmes v. (e) Army contractors subject to.-Army contractors are subject to the rules of the section cited. lon, 531; Hill v. U. S., 9C. Cls. R., 178. (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) Cadets subject.-Naval cadets are subject to the rules of the section cited. same as underƒ. (h) 16 A. G. Op. 13, 48. (i) Id. 639. (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) 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 ofan 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 s. 366; 18 A. G. Op., 135, Garland, Mar. 21, 1885. 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 21 A. G. Op., 195, 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. 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. Act Aug. 5, Credited with actual time of service.-The opinion of Attor 1882; act Mar. 3, 1883; 17 A.G.Op., 555: case of BoatswainMcDonald. ney-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 |
