635. The power expressly vested in the Secretary of War by sec. 4 of the act of September 19, 1890, to determine whether a bridge is an obstruction to navigation, is of a judicial nature, not ministerial merely.' The law makes him the agent of the United States for the purpose and vests him with a specific discretion. Held that the power devolved pertained to him alone and could not legally be exercised by the Assistant Secretary of War. C, 135, May, 1890. 3 636. Especially in view of the fact that the giving of the notice to alter, under the act of 1890, s. 4, is a proceeding preliminary and necessary to the fixing of criminal liability upon a failure to make the alteration, such notice should be strict and precise. It should set forth the situation and character of the bridge so as clearly to identify it, stating the name of the owner, &c., and specify fully the change or changes "required to be made" as to height, width of span or drawopening, &c.; and it should appear from the notice, or in connection therewith, that the party has had a "reasonable opportunity to be heard." 43, 431, November, 1890. 637. Before the notice to alter a bridge is given, the party owning or controlling the same is entitled, under the act of 1890, s. 4, to be heard on the changes specified in the notice as well as on the time in which they are to be made; and unless an opportunity for such hearing has bee.. given, the party will not be liable to the penalties specified in sec. 5, of the said act. Cards 798, December, 1894; 1511, November, 1895. 638. Held, that the provision of the act of August 11, 1888, as to the proceedings to be taken against a corporation refusing after due notice under that act to alter a bridge, was repealed by that of the act of September 19, 1890, and that such corporation could not now be prosecuted without a new notice under the existing statute, followed by a failure to comply. An offender cannot be punished under a penal act 'In U. S. v. Rider, 50 Fed. Rep., 406, it was held (by Sage, U. S. Dist. J.) that this section was unconstitutional in delegating to the Secretary of War "powers exclusively vested in Congress." See, however, Rider v. U. S., 178 U. S., 251. At the trial of this case in the circuit court there was a division of opinion, but the presiding judge charged the jury that Congress had the constitutional power to confer upon the Secretary of War the authority to determine when a bridge, such as the one in question, was an unreasonable obstruction to navigation, and on writ of error to the Supreme Court the judgment was reversed, without deciding this question, on the ground that the municipal officers controlling the bridge did not have public moneys which could lawfully be applied to the purpose and could not obtain such moneys within the time specified in the notice. In an able and exhaustive opinion by Acting Atty. Gen. Dickenson, dated Oct. 24, 1896, it was held that this act was not an unconstitutional delegation of legislative function; that Congress is not required to consider each case of alleged obstruction, but may generally define the offence and leave the facts to be determined by a court or special tribunal. 21 Opins. At. Gen., 430, and authorities cited. 2 Miller v. Mayor of New York, 109 U. S. 385, 393. "A purely statutory authority or right must be pursued in strict compliance with the terms of the statute." Bishop, Written Laws, § 119. which has expired or been repealed prior to conviction. So, advised that proceedings initiated under the act of 1888 be commenced de novo. 43, 431, November, 1890; 49, 72, September, 1891. Under the act of 1890, s. 4, it is made the duty of the Secretary of War to initiate proceedings (by notifying the proper district attorney) only in case of alterations, not made, of completed bridges; as to other obstructions, the duty to enforce the provisions of the act is devolved upon the "officers and agents" specified in s. 11. 52, 343, March, 1892. 639. Where, after notice to alter a bridge, as constituting an obstruction to navigation, the bridge company owning the same has failed, and the franchise has passed into the hands of a receiver, the proper method of procuring the alteration to be made is by motion in the proper court for an order requiring the receiver to make it. 37, 404, January, 1890. In such a case neither the owner nor the receiver can be made personally amenable for failure to alter. 60, 118, June, 1893. A similar proceeding is to be pursued where a receiver has been appointed before notice or before the obstruction was developed. Thus where a bridge, on the line of a railroad, which had been placed under receivers, was discovered to be an obstruction to navigation because of having no draw, advised that the Secretary of War apply to the Attorney General to have the case brought by the proper motion to the attention of the court by which the receivers were appointed, whose duty it then would be to order the receivers to make the alteration out of the income accruing from the operation of the road. And held that it would not be necessary to notify the receiver as such, since without the order of the court he could not legally incur the requisite expense for the purpose." 60, 118, supra; 62, 55, October, 1893. see 64, 399, April, 1894. And 640. Where a bridge has been reported an unreasonable obstruction to navigation the Secretary of War may proceed under sec. 4 of the act of September 19, 1890, to give the owners thereof a hearing with a view to notifying them to make the necessary alterations. But if in the meantime the owners waive hearing and notice and submit plans of alterations, the Secretary may approve the same; and his approval will in effect prescribe that the bridge be altered as indicated by the plans. This procedure has been followed in a number of cases. Card 1157, March, 1895. 641. The Department of Public Works of the City of New York requested that the necessary steps be taken to permit that department to close the drawbridge across Harlem River at Madison Avenue for 1Endlich, Interpretation of Statutes, 435. 2 See U. S. v. St. Louis, A. & T. R. Co., 43 Fed. Rep., 414. not to exceed two weeks to make needed repairs. Remarked, that there is no statute of the United States which in terms empowers the Secretary of War to authorize the closing of a drawbridge during its repair, but recommended that the applicant be advised that no steps would be taken by the War Department in regard to the bridge as an obstruction to navigation during the time necessary for its repair. Card 3299, June, 1897. BURGLARY. 642. Burglary at common law is the breaking and entering of a dwelling in the night time with intent to commit a felony. Where a soldier was brought to trial upon a charge of "Burglary," with a specification setting forth that he forcibly entered the quarters of an officer in the night, with intent to steal, and it appearing that he entered through an open window, held that, although the offence shown was not a burglary in law-the essential element of a breaking being wanting the charge and specification, taken together, omitting this element, made out a sufficient pleading of a disorder to the prejudice of good order and military discipline, under the 62d Article of war. XXXVIII, 391, December, 1876. And similarly held of an offence charged as "conduct to the prejudice, etc.," and described in the specification as "burglariously" breaking and entering a post trader's store in the day time. XXX, 548, August, 1870. C. CADET. 643. An unemancipated minor can acquire no residence distinct from that of his father or parent; otherwise in the case of an emancipated minor. Card 6615, June, 1899. So held that unemancipated minors whose fathers resided in certain States and congressional districts, could not, by removing to and abiding in other States or districts, acquire such an "actual residence" therein as to render them eligible for appointment as cadets under Sec. 1315, Rev. Sts.3 XXIX, 83, July, 1869; XXXI, 313, April, 1871. 2 See G. C. M. O. 205, Hdqrs. of the Army, 1876. See Crawford v. Wilson, 4 Barb. 505; Brown v. Lynch, 2 Bradf. 214; Wheeler . Burrow, 18 Ind. 14; Hiestand v. Kuns, 8 Blackf. 345; Allen v. Thomasen, 11 Humph. 536; Hardy v. De Leon, 5 Texas, 211; Story, Conflict of Laws, § 46. 3 This opinion was concurred in by the Attorney General, in 13 Opins. 130. 16906-01-12 644. Held that a minor whose father was a foreigner domiciled in Cuba, and who was himself commorant in the United States only for the purpose of being educated, was not eligible for appointment as a cadet from a congressional district. XXXV, 446, June, 1874. 645. Held that the mere fact that an officer of the army was on duty under military orders in a certain Territory, did not make his minor son eligible for appointment as a cadet from such Territory, the fact of the father's being thus on duty not being sufficient evidence of his being a legal resident therein. XXX, 528, July, 1870. So where an army officer was temporarily on duty as military instructor at a college in a congressional district which was not his actual residence, held that his unemancipated minor son commorant there was not eligible for appointment as a cadet from such district. Card 1220, April, 1895. 646. In view of the provision of the act of 1843, incorporated in Sec. 1315, Rev. Sts., that "the corps of cadets shall consist of one from each congressional district," &c., it has been customary, though the same is not required by law, for the President, in appointing cadets from congressional districts, to appoint them upon the nomination of the members of Congress representing such districts in the House of Representatives. But where a member of the Forty Sixth Congress, representing a certain numbered district of a State, nominated for appointment as cadet a resident of a county not within such district as previously constituted, but within a new district having indeed the same number but constituted mostly of different counties, and which had been created by the State legislature in a redistricting of the State since the election of such member, held, that, such nomination could not properly be accepted by the President as a basis for an appointment. This, for the reason that the member, at the time of the nomination, did not represent the new district containing the said county, but said district was in fact represented in Congress by no one, and could not be so represented till March 4, 1881, when the Forty Seventh Congress would commence to exist. XLII, 601, April, 1880. 647. Under the law the power of appointing cadets is in the President; and with the exception of the cadets appointed at large, the appointments are required to be made from **actual residents of the congressional or territorial districts or of the District of Columbia, respectively, from which they purport to be appointed”. The privilege of selecting those appointed from congressional districts, which has been accorded to members of Congress, is one which rests on regulation and long practice, and this privilege is limited to the nomination of such persons as meet the requirements of law. In making the appointments it is the duty of the President to appoint only such persons as comply with the provisions of the Statute, and the decision of the Representative in the matter does not relieve him from this duty. Card 6615, June, 1899. 648. The State of Ohio having been re-districted by an act of its legislature, held,-1, That the cadets now at the Military Academy appointed from congressional districts of Ohio, should, where the numbers of their districts had been changed, be credited to the new districts, so as to appear on the list as representing the districts now actually including the towns, &c., which were their places of resi dence when appointed: 2, That existing conditional appointments made under Sec. 1317, Rev. Sts., providing that such appointments shall be made one year in advance of admission to the Academy, and which accordingly had been made prior to the re-districting, were valid and should stand; the appointees being deemed entitled to admission at the designated time, subject to the prescribed conditions: 3, That future appointments should be made according to the districts as newly established and numbered; any increased delay that might thus be caused in the falling in of vacancies for appointments for particular districts being but a necessary result of the new legislation. XXXIX, 575, June, 1878. 649. Sec. 1317, Rev. Sts., prescribes that cadets shall be appointed one year in advance of the time of their admission to the academy, &c. It is to the date of appointment and not to date of admission that the qualification as to residence (Sec. 1315, Rev. Sts.) refers. Thus held, that a change of residence by a father would not affect the appointment of his minor son, legally made prior to the change of residence.1 45, 288, 303, February, 1891. 650. Assuming that an emancipated minor is so far sui juris that he can acquire and change domicil like a person of full age, the same rule of intention applies to determine the question of domicil in his case as in any other-there must be an animus manendi. So where an alleged emancipated minor took up a so-called residence in a congressional district other than that of his father's habitation, which residence was intended to be merely temporary and was resorted to for the sole purpose of securing an appointment as cadet from that district, held that such supposed emancipation and pretended change of domicil could have no legal effect in qualifying the party for such an appointment under Sec. 1315, Rev. Sts. LVI, 473, August, 1888. 651. A party was duly nominated and appointed as a cadet for a certain congressional district one year in advance agreeably to Secs. 1315 1See 13 Opins. At. Gen., 130. |