1417; 21 Stat. L.,

3, ch. 5, repeals in part ch. 159, 19 Stat. L., 65. The new section adds the words after "coal heavers."

Rev. Stat., 8. Enlisted men, number of. The number of persons who may at one time be enlisted into the Navy of the United States, including seamen, ordinary seamen, landsmen, mechanics, firemen, coal heavers, and including seven hundred and fifty apprentices and boys, hereby authorized to be enlisted annually, shall not exceed eight thousand two hundred and fifty: Provided, That in the appointment of warrant officers in the naval service of the United States preference shall be given to men who have been honorably discharged upon the expiration of an enlistment as an apprentice or boy, to serve during minority, and reenlisted within three months after such discharge, to serve during a term of three or more years: Provided further, That nothing in this act shall be held to abrogate the provisions of section fourteen hundred and seven.

8. 1426.

(a) Rev. Stat., (a) Honorable discharges may be granted.-Honorable discharges may be granted to seamen, ordinary seamen, landsmen, firemen, coal heavers, and boys who have enlisted for three years.

(b) Act of Mar. (b) Enticing seamen to desert.

2, 1855, ch. 136, s. 11; 10 Stat. L., 628; U. S. v. Thompson, 2

Sprague, 165.

291.

(e) 23 Stat. L., (c) Entitled to a ration, etc.-Enlisted men attached to any United States vessel or station on duty shall be entitled to a ration or commutation thereof.

1553; act Mar. 2, 1855, ch.136, s. 11; U. S. v. Thompson, 2 Sprague,

(d) Rev. Stat., s. (d) What constitutes enlistment.-Under the act of 1855, chapter 136, section 11, a seaman who had passed his examination at the naval rendezvous, but had not been examined and passed on the receiving ship, was held not to be enlisted.

103.

25 Stat. L., 657:

19 A. G. Op., 616, Miller, July 31, 1890.

16, 1890; Rev.

Stat., s. 1612.

Enlisted men of the Marine Corps.-The act of February 9, 1889, cited, to provide for the deposit of the savings of seamen of the United States Navy, does not extend to enlisted men of the Marine Corps.

(a) ActofJune (a) Prevent desertions, etc.-The provisions of section 1 of the act cited under (a) entitled "An act to prevent desertions from the Army, and for other purposes," are applicable to enlisted men of the Marine Corps by force and effect of the section cited; but those of sections 2, 3, and 4 of that act are inapplicable thereto.

act June 26, 1884.

23 Stat. L. 60: Ensigns.-The act of June 26, 1884, cited, provides that from and after the passage of this act all graduates of the Naval Academy who are assigned to the line of the Navy on the successful completion of the six years' course shall be commissioned ensigns in the Navy.

(a) Sec. 2.

(b) Sec. 3.

(a) Grade of junior ensign abolished.-That the grade of junior ensign in the Navy is hereby abolished, and the junior ensigns now on the list shall be commissioned ensigns in the Navy: Provided, That nothing in this act shall be so construed as to increase the number of officers in the Navy now allowed by law.

(b) Repeal. That all acts and parts of acts inconsistent with the provisions of this act be, and the same are hereby, repealed.

1894, ch. 174, s. 8;

21 A. G. Op., 181,

1895.

Envelopes, purchase of, opinion of Attorney-General respecting. Act July 31, The provisions of the act cited make it obligatory upon A. G. Op. of May the Comptroller of the Treasury to render a decision upon 22, 1895, affirmed; any question involving a payment to be made by or under Olney, May 23, the head of any Executive Department, and contemplate the construction by him of statutes. (a) Contract for envelopes.-A question regarding the construction of the section cited under (a), which provides that "the Postmaster-General shall contract for all envelopes, stamped or otherwise, designed for sale to the public, or for use by his own or other Departments, and to be of sufficient importance to warrant.its submission to the Attorney-General for his opinion thereon."

(a) Ibid. Act Jan. 12, 1895, ch. 23, s. 96.

(b) 3A. G. Op,

260, cited; 21 A.

(b) Repealed by implication.-The conclusion that a statute is repealed by implication is only reached when there is 438; 2 A. G. Op., irreconcilable conflict and when the two statutes can not G. Op., 181. by reasonable construction stand together; and in measuring the legislative intent as to the scope to be given to a statute in its operation upon previous statutes, not specifically referred to, a consideration of the effect upon the public welfare must necessarily be taken in view.

(c) Has no application.-Applying the rule of construction (c) Rev. Stat., stated in paragraph (b), and construing the provisions of ss. 3709, 3710. section 96 of the act of January 12, 1895, in connection with the sections cited under (c), held that the section of the act of 1895, referred to, has no application when an exigency may require an immediate delivery of envelopes to a particular Department, and the public service might be seriously impaired by the necessity of a requisition upon the Postmaster-General.

23, 1895.

(d) Exigency.-In the event of an exigency requiring an (d) 21 A.G.Op., immediate delivery of envelopes, the provisions of the 181 Olney, May section cited under (d), and the head of the Department in which the exigency exists may make the purchases required by the exigency.

ch. 43, s. 3.

Estimates for pay of the Navy.-The statute cited provides 23 Stat. L., 295, "That the Secretary of the Navy is hereby directed to report to Congress, at its next and each regular session thereafter, the amount expended during the prior fiscal year from the appropriations for the pay of the Navy, Bureaus of Navigation, Ordnance, Equipment and Recruiting, Yard and Docks, Medicine and Surgery, Provisions and Clothing, Construction and Repair, and SteamEngineering, for civilians employed on clerical duty, or in any other capacity than as ordinary mechanics and workingmen, and submit, under the estimates for such civilian employees for the fiscal year 1887, and each fiscal year thereafter."

Evidence. That in the trial of all *

858.

persons charged Rev. Stat., s. with the commission of crimes, offenses, etc., before courts-martial and courts of inquiry,

the person so charged shall at his own request, but not

otherwise, be a competent witness, and his failure to Cornett v. Wilmake such request shall not create any presumption liams, 20 Wall., against him. He may testify orally or by deposition.

226.

1500; 16 A.G.Op.,

20.

Rev. Stat.. s. Examination, temporarily suspended.-If after a naval officer has appeared before an examining board the examination is temporarily suspended, and he, being given permission to be absent at home until notified, fails to receive notice until after the examination is concluded and he is retired, being thus debarred the right of presenting material testimony in his defense, the President may revoke his action in approving the proceedings and findings of the board for the purpose of allowing the officer a rehearing.

1559. See note, s.

1411; Meigs v. U. S., 19 C. Cls. R., 497.

Rev. Stat., s. Extra compensation.--If a retired officer is designated by Congress to perform services which could not be required of him, such as the superintendence of the erection of a public building, he may receive extra compensation therefor. Failing in examination.—The loss of date need not be contemporaneous with the term of suspension, but must agree therewith in point of duration.

Rev. Stat., s. 1505; A. G: Op., 597.

Rev. Stat., 88.

1475, 1556; 18 A.

1378, 1381, 1382, Fleet paymaster.-No designation other than that made by the President entitles a naval paymaster to the place and perquisites of paymaster of the fleet.

G. Op., 156, Gar

land, Apr.21, 1885.

(a) 15 A. G. (a) Retired on furlough pay.-An officer retired on furlough Op., 316. pay is to be paid according to the provisions of section 1593 of Revised Statutes.

Rev Stat., 1587. Funeral expenses.-The expenses of the funeral of an officer who dies in a foreign country while on duty there, equal to one month's sea pay, shall be defrayed, etc.

13 A. G. Op., 341.

Rev. Stat., 1454,

Op., 96. Brew.

ster, Jan. 5, 1885.

But in the case of a naval officer who has started on a foreign service, but dies in a United States port at which his vessel touches, this statute does not apply. It comes within the prohibition of the statute cited.

1594, 164 Furlough pay.-An officer retired on furlough pay under section 1454, cited, can not be transferred on the retired pay list under second section cited with increase of pay; such increase is forbidden by the act of August 5, 1882, chapter 391.

(a) Id.

(b) Rev. Stat., s.

(a) Transferred to the retired pay list.-Nor can an officer be simultaneously retired on furlough pay and transferred to the retired pay list, so as to give him the pay of the latter.

1588; Browne. U. (b) Application of the law.-Section cited does not apply to officers retired on furlough pay.

S., 113 U. S., 568;

16 A. G. Op., 22.

1592.

Rev. Stat., 8. Grade pay. The term "grade:" "Officers on the retired list, when on active duty, shall receive the full pay of their respective grades."

(a) Thornley v.

R., 3.

U.S., 16 C. Els: (a) Increase of pay.-Navy officers on the retired list are not entitled to increase of pay by reason of longevity while thereon. The periods of five years' service contemplated by this statute for increase of pay are grades within section 1588.

(b) Rutherford (b) Grade. The term "grade" refers to the divisions of

v. U. S., 18 C.Cls. R., 339.

officers into five-years periods of service. A chief engi neer retired in the third period of five years' service is entitled to 75 per cent of the sea pay of that grade, and not to the highest pay of a chief engineer who has served over twenty years.

Op., 637.

Op., 564; Muse

ป.

R., 441; Foster's

"Graduating examinations."-These words mean that exami- Rev. Stat., s. nation which, under the regulations of the Naval Acad- 1519; 15 A. G. emy, takes place after the prescribed term of sea service has been performed. Assignments of relative rank, as between members of the same class, based upon results of such examination, are in conformity with law. Gunners. The power of the Secretary of the Navy to ap- Rev. Stat., s. point acting gunners is authorized by section 1410, Re- 1410; 15 A. G. vised Statutes. Such gunners, however, are not petty v. U. S. 19 C. Cls. officers. Acting gunners are liable to dismissal at the Case, 23 id., 90. will of the Secretary. Gunboats, appropriations for.-The act cited contemplates con- Act Mar. 3, struction of light-draft protected gunboats of steel, and 1893, ch. 212; act does not authorize the building of such gunboats on the 894; 24 Stat. L., "composite plan," a vessel of which some other material 215; 20 A. G. Op. than steel forms a substantial integral part. If it be the 1, 1893. fact that in naval architecture the term "steel," as descriptive of a vessel, has a special meaning, and includes a vessel built on the composite plan as well as a steel vessel proper, an opposite conclusion might be reached. Hazing. Hazing at the Academy is made punishable by dismissal, upon the finding and recommendation of a court-martial of not less than three commissioned officers Op., 80. and the approval of the superintendent, and such dismissal makes the offender ineligible to reinstatement or reappointment.

Mar. 3, 1886, ch.

617, Olney, June

18 Stat L., 203;

act June 23, 1874,

ch. 453; 15 A. G.

(a) To constitute the offense of "hazing" at the Naval Acad-(a) 18 A.G.Op.. 292. Opinion deemy under the act cited, it is essential that the victim livered Nov. 12, should be a new cadet of the fourth class. Hence, unless 1885, by Garland. the charge against the accused alleges that the victim was a new cadet of the fourth class, a court-martial organized under the statute would have no jurisdiction over it. An allegation that the victim was a candidate for appointment or admission to the Academy is insufficient.

507, Garland,

Nov. 12, 1885.

376, Garland,

(b) "An older cadet."-Where a cadet entered the Naval) 18 A.G.Op., Academy and became a member of the fourth class in Nov. 16, 1886; 1885, and also remained a member of the same class in ib, 292, Garland, 1886, he is at the latter period as much an "older cadet" within the definition of the offense of "hazing" as a cadet who, having entered the Academy at the same time (1885), has since been advanced to a higher class and (equally with the latter) is capable of committing the offense. (c) Cadet of second class. Where the record of the proceed--(c) 18 A.G.Op., ings of a court-martial in the case of a naval cadet of the Mar. 12, 1886. second class, who was tried under the act of June 23, 1874, for the offense of hazing, showed that the acts complained of were pulling the nose, striking at, striking, and otherwise maltreating a naval cadet of the fourth class: Held, that these facts, in conjunction with other circumstances, present a case containing all that is essential to constitute the offense of hazing within the meaning of the statute, and that the court had jurisdiction of the complaint.

U.S.v. Bank of Head of a Department. In general, the head of a Departthe Metropolis, 15 Pet., 377; U. S. v. ment can not supervise or reverse the decisions and acts Cobb, 11 F. R.,76; of his predecessors. Lavaletter. U.S., 1 C. Cls. R., 147; 5A. G. Op., 28, 87, 122, 664; 2id., 110, 463; 3 id., 684; 8 id., 214; 11 id., 189; 12 id., 169, 355; 13

id., 389; 9 id., 32.

(a) 11 A. G. (a) Interference with.-When such a head has rightfully Op., 117. assumed jurisdiction, another coordinate Department should not interfere with its control of the particular case. (b) 13 A. G. (b) Delay of action by.-Delay of action by the head of a Department should not be allowed at the request of a committee of Congress.

Op., 113.

594.

(e) 7 A. G. Op., (c) Certify by delegation.-The head of a Department can not certify by delegation when not authorized to do so by Congress.

573, Olney, Apr.

12, 1893.

(d) 20 A. G. Op., (d) Personal liability of.-The head of a Department incurs no personal liability by executing an instrument which should not have been executed, if he acts in reliance upon properly chosen subordinates whose ability and good faith he has no reason to doubt.

Gall., 624.

U. S. v. Ross, 1 High seas.-The words "high seas" mean any waters on the seacoast which are without the boundaries of low-water mark, although such waters may be in a roadstead or bay within the jurisdictional limits of a foreign government. (a) Fauces terræ.-The uninclosed waters of the ocean on the seacoast outside the fauces terræ are also included in the words "high seas."

(a) U. S.

v.

Grush, 5 Mason, 290.

ActJan. 4, 1889,

ch. 19, s. 2; 19 A. G. Op., 296.

21 A. G., O.p. 59, Olney, Sept. 22, 1894.

Rev. Stat., 9. 3709; act Jan. 27, 1894, ch. 22; act Apr. 21, 1894, ch. 61.

1894, 8. 2.

Hospital, Marine, Service. The provision in the statute cited that "no officer shall be promoted to the rank of passed assistant surgeon until after four years' service," applies to all assistant surgeons in the Marine-Hospital Service without any exception.

Hydrographic Office, purchase of supplies.-All purchases and contracts for supplies in any of the Departments of the Government must be made by advertisement unless immediate delivery is necessary.

(a) The first two sentences of the section cited as amended by the acts cited apply to purchases anywhere in the United States. The remaining three sentences apply only to purchases in the city of Washington.

(b) Act Apr. 21, (b) The word "miscellaneous," in the urgent deficiency act, cited, must be restricted to that class of commodities which must be purchased on a considerable scale and used alike by many or all of the various Departments and Government establishments in the city of Washington. Incapacity, cause of, marks the line between the two classes of retired officers referred to in the section cited.

Rev. Sta., 8. 1588; U. S. v. Burchard, 125 U. S., 176; 19 C. Cls. R., 137; Potts v.

U. S., 125 U. S.,

173.

21 Stat. L., 164, Judge-Advocate-General.-The statute cited provides for the

ch. 129; Supp.

Rev. Stat., 290, 291.

appointment, for a term of four years, from the officers of the Navy or the Marine Corps, of a Judge-Advocate-Gen