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Charges preferred by others than the Secretary. The restrictions of the article cited apply only to cases of charges preferred by others than the Secretary of the Navy. Commissioned officers.-"Commissioned officers" here include volunteer naval officers appointed under the act cited.

Art. 43; 4 A. G.

Op., 410.

Art. 39; 10 A.

Op., 522; act July 24, 1861.

(a) Winthrop's

p. 88.

(a) Noncombatants qualified to serve on courts-martial.— 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.

98; 6id., 369. See

Hoover, 20 How.,

(c) False imprisonment, action for.-When the court-martial, (e) 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.

Op., 158. See 9

Corrupting a marine guard.-The offense of corrupting a Art. 5; 10 A.G. marine guard by bribery may be punished by imprison- id, 80. 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.

Whitney, 116 U.

(a) Secretary may reconvene.-The Secretary of the Navy, (a) Smith v. 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.

Art. 24; Story, J., in Martin v.

Discretionary power.-"Whenever a statute gives a discretionary 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. 31. 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 reasonable measures necessary to insure obedience, and even imprison the refractory party on shore, if he did so without any malice.

(e) 12 Stat. L., (c) Flogging.-The later statute cited says that "in no case p. 603; act July shall punishment by flogging be inflicted, nor shall any court-martial adjudge punishment by flogging."

17, 1862.

Art. 49: U.S.v. 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 flog. ging; 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., 1418, 1419, and 1420; 21 Stat. L., p. 3, ch. 5.

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.

(g) Loss of pay by reason of confinement or suspension.Officers and men in the naval service do not incur any forfeiture or loss of pay by confinement or suspension from duty under sentence of a court-martial unless it is so specified in the sentence.

(g) Art. 33; 15

A. G. Op, 175.

(h) Id.

(h) Remission of part of sentence.—A part of such sentence may be remitted in whole or in part by the proper officer. (i) Officers, meaning of.-"Officers" in the article cited(i) Art. 36. (See means, at most, warrant and commissioned officers.

Notes on U. S. Statutes, p. 416, note on s. 1413); 15 A. G. Op., 634.

(j) Petty officers.-Petty officers are included in article 30. (j) Art. 30. (k) Acting gunners.—Articles 36 and 37 do not apply to act() 15 A. G. Op., ing gunners, who are not officers and are liable to dismissal at the will of the Secretary of the Navy.

(1) Cadets at Naval Academy.-The article cited does not extend to cadets at the Naval Academy, who may be dismissed from the Academy and the service without trial by court-martial.

564.

(Art. 36; 15 A. G. Op., 634.

Op., 315.

(m) Power of the President to dismiss prior to passage of arti- (m) 16 A. G. cle 36.-Prior to its passage the President might dismiss an officer of the Navy upon any cause which seemed sufficient to him.

(n) Engineer cadet.-A naval cadet engineer is an officer (n) U. S. v. Per. within this section.

kins, 116 U. S., 483; 15 A. G. Op., 165.

(p) Art. 37; act June 22, 1874, ch. 302, s 2. 18 Stat.

(0) Oath administered to court and judge-advocate.-Where, (0) Art. 39; 13
A. G. Op., 374.
at the organization of a naval court-martial, each member
of the court was first sworn by the judge-advocate, who
was then sworn by the president of the court, the fact
that the oath was not administered as required by this
article was held not to invalidate the proceedings.
(p) Pay of an officer dismissed and restored.-A naval officer,
dismissed from the service and restored to the same under
the article cited is not to be allowed more than pay as on L., 191; Adam-
leave for six months from the date of dismissal, unless he Cls. R.,623, Hunt
v. U. S., 116 U. S.,
continues to demand, as often as once in six months, a
396.
trial as here provided. This authorizes payment only
from the time a promoted officer takes rank in the higher
grade.

(q) Demanding trial.-The demand of a trial as often as once
in six months is not excused by illness.
(r) Petty officers included in article cited.

son v. U. S., 19 C.

(q) 15 A. G. Op., 569.

(r) Art. 30; 15 A. G. Op., 634. (8) Act Mar. 2, 1855; 10A.G.Op.,

(s) Summary courts-martial.-The act cited, which established summary courts-martial in the Navy, did not 168. take away the previously existing power of the commander of a vessel to reduce seamen to inferior rate for incompetency.

G. Op., 19.

(t) Reconsideration of judgment of a court-martial.-If the) Art. 53; approval of the President is required to the sentence of a court-martial before it can be carried into effect, he may direct a reconsideration of the judgment rendered. (u) Acting master's mates, sentence affecting.-An acting master's mate is neither a commissioned nor a warrant officer 251. under this article, and a sentence dismissing him from the service may be lawfully carried into execution without the approval of the President or the Secretary of

4 A.

(u) A. G. Op.,

508.

the Navy. If the latter approve it, the President has no power after it has been carried into execution to set aside the Secretary's order and restore the party to the service.

(v) A. G. Op., (v) Approval of sentence by the Secretary under act of 1852.— Under the article of war in force in 1852 the Secretary of the Navy has power to approve the sentence of a court-martial convened by his orders if such sentence did not extend to the loss of life or to the dismissal of a commissioned or warrant officer.

(w) 10 A.G.Op. (w) Regulations established by the Secretary have force of

168; Ex parte Reed, 100 U. S., 13; U. S. v. Bo

gart, 3 Ben., 257.

Rev. Stat., ss.

4787, 4788, 4790, amended by act Mar. 3, 1891; 20 A. G. Op., 83, Miller, May 4, 1891.

law. The regulations established by the Secretary of the Navy, with the President's approval, have the force of law, and the regularly appointed clerk of a paymaster in the Navy is a person in the naval service and subject to this section.

(x) Art. 50; A. (x) Revise sentence.—If a general court-martial, on being orG. Op., 338. dered to reassemble by the Secretary of War for the purpose of revising its sentence, is not attended by all its members, its jurisdiction to revise such sentence exists. Artificial limbs.-The amendment cited having provided that soldiers and seamen wounded in the rebellion, who had been entitled to receive artificial limbs every five years, shall now receive the same every three years, and a question having arisen as to whether sections 4788 and 4790, cited, providing for a money commutation in place of said limb stood in the same relation to the amended section, 4787, as to the original section and whether now such money commutation can be had every three years, it is decided that it can be had.

17, 1870; 20 A. G. Op., 83.

(a) Act July (a) Period from which the three years run. The word "thereafter," now appearing in section 4787, cited, refers not to July 17, 1870, but to the time when the artificial limb shall have been furnished after that date; consequently the periods of three years run from the time when such limb was furnished, and not from July 17, 1870.

1883; Stat. L.,26,

p. 254.

Act Mar. 3. Assistant Secretary of the Navy.-The statute cited repeals the provision of August 5, 1882, authorizing the appointment of an Assistant Secretary of the Navy. A new act of July 11, 1890, chapter 667, page 254, authorizes the President, with the advice and consent of the Senate, to appoint from civil life an Assistant Secretary of the Navy, at a salary of $4,500.

24, Stat. L.,157; act July 26, 1886.

21 A. G. Op., 186, Olney, June 1, 1895. (This opinion does not conflict with 20

Op., 1, distinguished) (20 Op., 728).

Balances covered into the Treasury.-The statute cited provides that all balances of moneys appropriated for the pay of the Navy or pay of the Marine Corps for any year existing after the accounts for said year shall have been settled shall be covered into the Treasury.

Bids, withdrawal of.-After a bid for the construction of public works has been accepted the bidders have not the right to withdraw their proposal merely because of a mistake on their part which was not mutual and which was due to their negligence.

22 Stat. L., pp. Board, Naval Advisory, authorization for. 291, 293, 478.

G. A. Jenks, act

Bond of disbursing officer.-The Secretary of the Navy has, Rev. Stat., s. 1883; 19 A.G.Op., power under the section cited to approve a pay officer's 175, Aug. 2, 1888, bond in which the sureties are corporations, or a corpora- ing A. G. tion joined with a natural person, if he deems such sureties sufficient. Books and records of bureaus, custody of.-A part of section Rev. Stat., 8. 8 of the cited act was omitted from the revision as con- 1842; 1 Com. D., ferring powers exhausted by their first exercise. Boys, enlisting same, age limit, etc. In the section cited, 1418; i Com. D., and in sections 1419, 1420 (21 Stat. L., chapter 5), as 695. amended by 21 Stat. L., 331, chapter 73, changes "sixteen" to "fourteen."

420; act Aug. 31,

234.

Rev. Stat., 8.

18 F. R., 369; cf.

(a) Marine Corps, part of the Navy.-Marine Corps is a part,(a) In re Doyle, of the Navy, not of the Army, and that minors over U. s. v. Baineighteen years may be enlisted therein without the consent of parents or guardians was upheld by the Federal Dinsmore, 7 How courts.

bridge, 1 Mason, 71; Wilkes

v.

ard, 89; Re Hayes, 15 Rep., 259; Re McNulty, 2 Lowell, 270; U. S. v. Stewart, Crabbe, 265; Re Gregg, 15 Wis., 479; Ro Shugru, 3 Mack. ey, 323; Re Webb' 24 Howard, Pr (N. Y.), 3247; R Collins, 25 id., 157

(b) Parents' consent. The parents' consent might be given) Act of Jan after enlistment.

States

20, 1813; Common
wealth v. Camac'
1 Serg. & R., 87.
(c) 23 Stat. L.,

1885.

(c) Allowed a ration.—Boys attached to any United vessel or station and doing duty thereon shall be allowed 291; act Jan. 30, a ration, or commutation thereof in money, etc. Buildings rented. The statute cited requires heads of Depart- 22 St., 552. ments to submit to Congress each year a statement of the number of buildings rented by their respective departments, the purposes for which rented, and the annual rental of each.

Rev. Stat., ss.

178, 179; 19 A. G.

Bureau officers, assistant chief.-A naval officer assigned to duty as an assistant to the chief of a bureau in the Navy Op., 503, Miller, Department is not authorized by the first section, cited, in Mar. 5, 1890. case of the death, resignation, absence, or sickness of the latter (where the President has not otherwise directed, as provided by section 179, cited), to perform the duties of such chief until his successor is appointed or until his sickness or absence shall cease.

The phrase "assistant or deputy of such chief,” etc., in section 178, is to be construed as including an assistant or deputy only whose appointment is specifically provided for by statute.

vol. 1, p. 697. (25

Cadets, age of, maximum and minimum.-That after the Supplement, fourth day of March, eighteen hundred and eighty-nine, Stats. 1, 878.) the minimum age of admission of cadets to the Academy shall be fifteen years and the maximum age twenty years. (March 3, 1889.) Cadets, at the Naval Academy have neither warrants nor Rev. Stat., s. commissions, and are not "officers" in the usual Federal 561,635 Grambs's legislative sense, as, for example, as it is employed in sec- Case, 23 C. Cls. tion 1410, Revised Statutes.

1410: 15 A.G. Op.,

R., 420.

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