provision is made for "such as may be held in service by proper authority" after their organizations shall have been mustered out. Card 5075, September, 1898. 1759. On January 12, 1899, it was provided by statute (see G. O. 13, A. G. O., 1899) "that the discharge of all officers and enlisted men from the volunteer service of the United States shall, as far as practicable, take effect on the date of the muster-out of the organization to which they belong." Among the instructions or regulations of the Secretary of War for carrying out this law is the following: "As provided for by law, all officers and enlisted men, present and absent, stand discharged on the date of the muster-out of the organization to which they belong, unless retained in service by special authority of the War Department." Held that this regulation properly assumes that the Secretary of War has authority to retain officers and enlisted men in the service, because when "special authority of the War Department" is given for such retention, it has been duly decided that it was not "practicable," within the meaning of the statute referred to, for them to go out with their organizations. Card 6621, July, 1899. 1760. Paragraph 1 of General Orders 108, A. G. O., 1863, prescribed that whenever volunteer troops were mustered out of service the entire regiment or other organization would be considered as mustered out at one time and place, with the exception of prisoners of war. This order must be regarded as promulgated by authority of the President because it was issued by the Secretary of War. That the order was such a regulation with reference to the administration of the army as the President had constitutional authority to make cannot be questioned, and being such it had the force of law where it applied. No one subject to the constitutional authority from which the order emanated could claim exemption from it on the ground of any absence of personal notice. The making known of this regulation throughout the army was notice to all concerned, and thereafter they held their enlistment subject to its conditions. When a man enlists in the army he does not bind himself to obey only the regulations and orders in force at the time of his enlistment, but he agrees to obey the orders of the President without any such limitation, and he thereby enters into a new status and subjects himself to a new code and all the changes that may be made in it from time to time. General Order No. 108, of 1863, when it was issued and made known to the army, became a part of this code to which the soldier had subjected himself and he had no right to any further notice of discharge; and by the established practice of the service the making known of the regulation to the army was the only notice required. It has been held that this regulation did not apply to soldiers specially retained in the service by compe tent authority, because in such case the exception emanated contemporaneously from the same authority that made the rule. There is another point of view from which this subject might be considered were it necessary to do so. The power of an immediate disbandment of the whole army must be vested somewhere in our political system. This power is of course primarily vested in Congress, which may pass an act, operative at the date of its passage, abolishing the army on that date. But as Congress cannot know precisely when volunteer troops may no longer be needed and may be disbanded, it has been left to the Executive to declare when they shall go out of service, and this executive power, when there is no legislative restriction, would seem to be as plenary as the legislative power. Therefore, the Executive, in disbanding a volunteer army (when the disbandment has been left to the Executive by Congress), might cause it, or parts of it to go out of existence summarily, without any notice, actual or constructive. The exercise of this power to this extent would manifestly cause great hardship, and it has not been attempted in practice. But the existence of the power has an evident bearing on the subject of notice, because where the power exists no original right of notice exists, and such right of notice as springs up is purely a concession to fairness. Paragraph 15 of G. O. 124, A. G. O., of 1898, prescribed that "the discharge from the United States volunteer service in case of all absentees (except in special cases otherwise provided for or such as may be held in service by proper authority) will take effect on the date of the muster-out of the organization." Par. 1, sec. II, of the same order directed that a physical examination should be made "of all officers and enlisted men of volunteers, except general officers and officers of the general staff, immediately prior to their muster-out of service or discharge." This apparently included absentees under military control who (considering this provision without reference to others) might well be considered in the service for the purpose of this examination until discharged, either with or without examination. But by paragraph 14 of the order it was prescribed that on the muster-out of an organization, discharge certificates were to be prepared for every officer and man, present and absent, except officers and men held in service. by proper authority and deserters; and paragraph 17 directed that in the cases of enlisted men absent, who on account of sickness were unable to join their commands, the discharge certificates were to be given to the mustering officer for transmission to the Adjutant General, and in the case of soldiers absent on detached service under proper authority discriptive lists were to be sent to the officers under whom they were serving. Here is proof of an intention to carry out the pro visions of paragraph 15 according to its terms. Paragraphs 14 and 17 merely supplied the means of doing so. All the parts of an executive regulation like a statute must be considered together to arrive at its true meaning, and moreover the construction here indicated has obtained in practice. Held therefore that G. O. 124 of 1898 had the same effect as G. O. 108 of 1863; that is, to discharge all absentees not retained in service by competent authority on the date of the muster-out of the organizations to which they belonged.' Cards 6980, 8962, September, 1900. * * 1761. Where a muster-out roll dated December 23, 1864, showed "the company mustered out on that date, to date from November 30, 1864," held that the actual date of muster-out was as stated on the record, December 23, 1864. Card 2888, January, 1897. 1762. When it is clearly shown by the official records that a volunteer organization was actually mustered out of the military service of the United States on a certain date, that date should be held and accepted as the true date of muster-out, regardless of the date which may have been fixed in advance for the muster-out, of the date to which payment was made, and of the date of discharge entered upon the discharge certificates of the men mustered out with the organization. This rule should not, however, apply to the case, if such a case should arise, of an organization mustered out on a certain date as of some future date, payment being made to the future date and the discharge certificates bearing that date. Card 7451, December, 1899. Thus where the records showed that a volunteer organization, having been furloughed to November 11, 1898, was ordered to be mustered out on November 21st, but was finally mustered on November 16th, payment being made to November 21, 1898, and the discharge certificates bearing the latter date, held that the true date of muster-out was November 21, 1898, the muster-out having taken effect on that date. Card 8722, August, 1900. N. NATIONAL CEMETERY. 1763. The appraisement of land for a national cemetery, as duly made by a United States court under Secs. 4871 and 4872, Rev. Sts., is conclusive upon the Secretary of War, who must thereupon pay the See this opinion approved by the War Department and published in full in a circular therefrom, dated September 20, 1900. appraised value as indicated in the latter section. If indeed there has been fraud in the valuation by which the court has been deceived in its decree, or its original appraisement is deemed excessive, it may properly be moved for a new appraisement on the part of the United States. XXVI, 617, June, 1868. 1 1764. Held that, notwithstanding the provision in Sec. 4872, Rev. Sts., that the jurisdiction of the United States over land taken for a national cemetery, by the right of eminent domain, "shall be exclusive,"—such a jurisdiction, where the land is within a State, cannot be legally vested in the United States, except by the cession of the State legislature. In the absence of such cession on the part of the State Sovereignty, an act of Congress must be powerless to confer such an authority. XXVII, 661, May, 1869. 1765. Held that the general annual appropriation for the maintaining of the national cemeteries could not legally be expended for the purchase of other land, even if such land was proposed to be used for the interment of soldiers; but that for such a purchase, as for any purchase of land by the United States, specific authority must be obtained from Congress. XLI, 50, November, 1877. 1766. By Sec. 4881, Rev. Sts., the superintendent of a national cemetery is authorized to arrest persons who injure, &c., grave-stones, trees, shrubs, &c., within the cemetery. Held that he could not, under this authority, legally arrest a person who fired a gun into or across the cemetery without causing any such injury as is specified in the statute, but, for the arrest and punishment of such a trespasser, must have recourse to the local authorities. XXXII, 425, March, 1872. 1767. Superintendents of national cemeteries are no part of the army but civilians, being required indeed by Sec. 4874, Rev. Sts., to be selected from persons who have been honorably discharged from the military service. They are therefore of course not subject to the Articles of War or to trial by court martial; and, for any serious misconduct on the part of a superintendent, a removal from office would be the only adequate remedy. XXXV, 34, October, 1873; XXXVIII, 381, November, 1876; 577, April, 1877. 3 1768. Secs. 4870-4872, Rev. Sts., constitute the only existing general law authorizing the purchase or acquisition of land as cemetery grounds for the interment of soldiers. The general provision on the subject, of sec. 18 of the act of July 17, 1862, c. 200, has ceased to be 1See 14 Opins. At. Gen., 27. 2 See the subsequent opinion of the Atty. Gen., in 13 Opins., 131. See the subsequent opinion, concurring in this view, of the Attorney General, in 16 Opins. 13. And see § 168, ante. in force under the operation of Sec. 5596 of the repealing provisions of the Revised Statutes. 32, 261, May, 1889. 1769. To authorize the acquisition, by the exercise of the right of eminent domain, of private land for a national cemetery under Secs. 4870, 4871, Rev. Sts., there must be-(1) an existing appropriation (in conformity with the rule of Sec. 3736, Rev. Sts.), authorizing the acquisition; and (2) the private owner must be unwilling to give title, or the Secretary of War be unable to agree with him as to price. 32, 277, May, 1889. 1770. The Government is under no legal obligation to provide burial places for destitute soldiers at a volunteer home. Sec. 4878, Rev. Sts., in providing that the soldiers, &c., there designated, "may be buried in any national cemetery free of cost," does not require the establishment of a national cemetery specially for the purpose of interments at such a home. 32, 277, May, 1889. 1771. The Gettysburg National Cemetery was established in 1863 by the State of Pennsylvania with the cooperation of seventeen other States whose soldiers were engaged in the battle of Gettysburg; and a corporation was created for its establishment and care by an act of the Pennsylvania legislature. The act of incorporation provided, among other things, that "the said grounds shall be devoted in perpetuity to the purpose for which they were purchased, namely, for the burial and place of final rest of the remains of the soldiers who fell in the defence of the union in the battle of Gettysburg; and also the remains of the soldiers who fell at other points north of the Potomac river in the several encounters with the enemy during the invasion of Lee, in the summer of one thousand eight hundred and sixty three, or died thereafter in consequence of wounds received in said battle and during said invasion." By an act of the Pennsylvania General Assembly of April 14, 1868, the commissioners having charge of the cemetery were authorized to transfer all the right, title, interest and care of the same upon its completion to the United States upon condition "that the United States government take upon itself the management and care of said cemetery and make provision for its maintenance." In accordance with a resolution of Congress approved July 14, 1870, a deed from the Soldiers' National Cemetery (the corporation above referred to) dated April 18, 1872, was accepted, which deed granted to the United States the cemetery to have and to hold "for the purposes for which it was acquired as is fully set forth in the act of incorporation * * * * * *"; but it is not stated that it shall not be applied to other like cemetery purposes also.' Held therefore that 1 See leading cases in the American Law of Real Property, pp. 24-27. |