* * *

rules of the service." One of these rules is that contained in par. 21, A. R. (1889), to the effect that "promotions will be made according to seniority, except in case of disability." An officer had himself applied to be retired on account of a certain disability, and had been ordered before a retiring board which had found him incapacitated. But before the President acted upon the report of the board a vacancy occurred in the grade next higher to that of the officer, to which, if qualified, he would have been entitled to be promoted by seniority. Held that, as the fact of disability clearly appeared in the case, though no final action had been taken in regard to the retirement, the officer could not legally be promoted. 43, 83, September, 1890. 2076. Held that a vacancy in the office of "chief medical purveyor" should be filled, not by transfer from another office in the medical corps of equal rank, but by the promotion of the senior lieutenant colonel of the corps. 42, 331, August, 1890.

1

2077. A vacancy in the grade of quartermaster with rank of major having occurred in the Quartermaster Department, a military storekeeper in that department, who was the senior captain in the same, applied for the promotion. Held that the office of military storekeeper was no part of the permanent organization of that department, as constituted by the act of March 2, 1875, and was not one of the series of offices of the department to which the right of promotion under the law and regulations attached upon a vacancy, and that the claim must therefore be disallowed. Rank or grade is but an incident to office. Promotion is from office to office and as a consequence from grade to grade, and the law does not permit, in promotion, a separation of the office from the grade or rank. LVI, 683, October, 1888.

PROSECUTOR.

2078. Other than the judge-advocate, who by the 90th Article of War is "required to prosecute in the name of the United States," our military law and practice recognize no official prosecutor. The party who is in fact the accuser or the prosecuting witness, is, in important cases, not unfrequently permitted by the court to remain in the court room and advise with the judge-advocate during the trial, if the latter requests it; and in some cases he has been allowed to be accompanied by his own counsel. If such a party is to testify, he should ordinarily be the first wintess examined: this course, however, is not invariable. II, 1, June, 1863; XXIX, 34, June, 1869.

'This office has been done away with by the operation of the act of July 27, 1892, c. 270.

PROTEST.

2079. Where the majority of the members of a court martial have come to a decision upon any question raised in the course of the proceedings, or upon the finding or sentence, no individual of the minority, whether the president or other member, is entitled to have a protest made by himself against such decision entered upon the record. The conclusions of the court (except in cases of death sentences, where a concurrence of two-thirds is required) are to be determined invariably by the vote of the majority of its members, and it is much less important that individual members should have an opportunity of publishing their personal convictions, than that the action of the court should appear upon the formal record as that of the aggregate body, and should carry weight and have effect as such. XI, 203, December, 1864; XXV, 542, May, 1868. Nor can a protest (against the finding or otherwise) by a minority of the members, be appended to the record, on a separate paper. XXXVI, 264; February, 1875.

PUBLIC MONEY.

2080. Held that the amounts received from private parties as "compensation" for the use of the Des Moines Dry Dock, under the act of August 2, 1882, c. 375, were public money, and, in the absence of any authority for the purpose in this act or other statute, could not legally be expended without an appropriation by Congress. By Secs. 3617 and 3621, Rev. Sts., it is made the duty of every person, official or otherwise, to pay into the Treasury, "at as early a date as practicable," any public money coming into his possession. The deposit and keeping of public money, by disbursing officers, in places where there is no public depositary, is regulated by the Secretary of the Treasury, under Sec. 3620, Rev. Sts. 39, 395, March, 1890.

2081. Where an officer in charge of certain river and harbor improvements exacted and received, from certain contractors for the work, sundry small sums of money claimed as due from them as amercements for damage or loss caused by them to the United States, held that such sums were public money of the United States, and that a failure to account for the same as such rendered the officer liable to a charge of embezzlement. 52, 138, February, 1892.

2082. Held that money received as rent or compensation for the use of portions of the water front of the Fort Canby reservation, Washington, for fish-traps, was public money and was to be accounted for

1See Simmons, § 469; Hough (Precedents), 703, note 4.

as such, and that it could not legally be turned into the "mess fund" for the purchase of vegetables for the post. 40, 72, March, 1890.

2083. Congress is vested by the Constitution with the exclusive power of disposition of the personal as well as the real property of the United States;1 and by Sec. 3618, Rev. Sts., Congress has provided generally that the proceeds of sales of personal property of the United States shall be paid into the Treasury as "miscellaneous receipts.' Held therefore that the various funds received at military posts, on military reservations or otherwise, as compensation for public property occupied, sold, or allowed to be used or appropriated, or for labor furnished, or privileges or facilities conceded, &c. (such as moneys received for rents of fisheries, for fallen timber, for surplus lumber, manure, &c., for metallic cartridge shells collected at target ranges, for grazing privileges, brickyard privileges, quarrying privileges, the privilege of cutting ice, repairs done to wagons, shoeing of teams, tolls for teams and wagons passing across reservations, &c., &c.), were public money of the United States, to be accounted for to the Treasury, and could not be legally retained as a so-called "slush fund," or disbursed for the use or benefit of the post or command. Otherwise, as to the proceeds of the sale of the savings from rations, or of the sale of any other company or regimental, &c., property. And money paid to a band for playing to citizens, being for a quasi personal service, may go to the band fund. But, while de minimis non curat lex, the proceeds of all public property of any material value, including all moneys exacted or received from civilians, are to be turned into the Treasury; and otherwise to dispose of them is embezzlement. 43, 308, October, 1890; 52, 138, February, 1892.

2084. The act of July 28, 1892, c. 316, authorizes the Secretary of War, in his discretion, to "lease for a period not exceeding five years, and revocable at any time, such property of the United States under his control as may not for the time be required for public use," such leases to be "reported annually to Congress;" but does not prescribe as to the disposition of the moneys received as rents. Sec. 3621, Rev. Sts., provides for the disposition of public moneys coming into the possession of any person, and par. 698, A. R. (1889), directs that "the face of the certificate or receipt" shall "show to what appropriation' the funds belong. Advised that it would be sufficient for any post quartermaster or other disbursing officer into whose hands such rents should come, to note the character of the payment upon his certificate, leaving it to the War Department to report the same in the aggregate to Congress at the end of each year. 59, 369, May, 1893.

1U. S. e. Nicoll, 1 Paine, 646 (Fed. Cas., 15,879).

PUBLIC PRINTING.

2085. Advised that, under the prohibitory provisions of the act of July 7, 1884, c. 332, a work entitled the "Manual of Calisthenics" cannot legally be authorized or caused, by the Secretary of War, to be printed by the Public Printer, unless the same be, in the words of the act, "necessary to administer the public business." The term "necessary" has been construed, in similar connections, as meaning— not absolutely necessary, but reasonably necessary or clearly conducive, to the object expressed. (See the Legal Tender Cases, 12 Wallace, 457, 539.) The Secretary of War should be assured that the proposed publication would clearly and materially conduce to the due administration of the public business, before causing the printing to be done by the Public Printer. 50, 442, December, 1891. Similarly advised in regard to a translation, by an artillery officer, from the Russian, of lectures on the subject of the "Resistance of Guns and Interior Ballistics"; a precedent being cited of a work by a surgeon of the army, entitled "Notes on Military Hygiene", held by the Secretary of War (April, 1890) to be valuable though not necessary in the sense of the statute. 50, 444, December, 1891.

2086. Held that the Secretary of War "is authorized by law" (see public printing and binding act. of January 12, 1895) to have the Commissary's Hand Book, or any other similar work needed in the business of the War Department, printed at the Government Printing Office and paid for from the War Department's allotment of the appropriation for "public printing and binding". Card 1679, August, 1895.

PUBLIC PROPERTY.

2087. The Constitution-Art. IV, Sec. 3, par. 2-provides that “the Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States." The scope of this provision is most comprehensive; the authority conferred thereby upon the legislative branch of the Government being held to extend from the formation of a Territorial government to the matter of the sale of a small amount of personalty. That neither land nor any interest in land of the United States can be sold or otherwise disposed of by the head of an executive department or other executive official or by a military officer, without the authority of Congress, is settled law.' VII, 404, March, 1864;

'This fundamental rule of our public law is expressed by Attorney General Hoar (13 Opins., 46), as follows: "I am clearly of opinion that the Secretary of War cannot convey to any person any interest in land belonging to the United States, except in pursuance of an act of Congress expressly or impliedly authorizing him to do so. And see United States v. Nicoll, 1 Paine, 646 (Fed. Cas., 15,879); Seabury v. Field, McAllister, 1; United States . Hare, 4 Sawyer, 653, 669.

XXIII, 135, July, 1866; XXX, 605, August, 1870; XXXV, 307, April, 1874; XLII, 283, May, 1879; LIV, 609, February, 1888. In the absence of such authority, the lands of the United States, whether held by original proprietorship, or acquired by purchase or gift, or by conquest, cannot, even for a purely benevolent or religious purpose, be given away any more than they can be transferred for a valuable consideration. XXXIX, 337, December, 1877. Nor (without such authority) can they be conveyed temporarily by lease, whether for a short or long term.' XXXII, 2, May, 1871; XXXIX, 336, December, 1877; XLII, 230, March, 1879.

2

2088. Nor, without authority from Congress, can an executive department or officer convey away any usufructuary interest in land of the United States. Thus it has been repeatedly held by the JudgeAdvocate General that the Secretary of War (or a military commander) was not empowered, of his own authority, to grant a right of way over a military reservation to a railroad company or other corporation. XXXI, 237, March, 1871; XXXIV, 197, 470, March and September, 1873; XXXV, 554, August, 1874; XXXVI, 207. January, 1875; Card 241, August, 1894. And such rights when given by Congress, can be exercised only within the terms of the grant. Thus where by an act of Congress there was granted to a railroad company a limited and defined right of way across a military reservation (occupied by a military post), held that the company was authorized simply to construct a track or roadway, and was not empowered to put up depots, stock yards, cattle pens or other erections upon the land, or to appropriate land otherwise than for the roadway.3 XLI, 214, April, 1878; XLII, 187, March, 1879. So held that the Secretary of War could not, of his own authority, grant, in consideration of the payment of toll to the United States, a right of way over a bridge belonging to the United States. XXXI,

1 See Friedman v. Goodwin, 1 McAllister, 148, where a lease made, by the post commander at San Francisco, of a part of a "government reserve," though approved by the military governor of the then Territory and also by the Secretary of the Interior, was held void because not authorized by Congress. The court declares the "utter impotency of any attempt by an officer of the Government to alien any land, the property of the United States, without the authority of an act of Congress;" adding that "the President with the heads of the departments combined" could not effect such an object. And see 4 Opins. At. Gen., 480; 9 id., 476; 13 id., 46; United States v. Hare, 4 Sawyer, 670–1. In the last case the court says: "The Secretary of the Treasury cannot execute or approve of a lease of any property belonging to the United States without special authority of law."

But see now the act of July 28, 1892 (27 Stats., 321), which gives the Secretary of War authority to lease for a period not exceeding five years and revocable at any time, public property under his control (except mineral and phosphate lands), not for the time required for public use.

2 In numerous statutory enactments such a right has been expressly given by Congress as the only authority competent for the purpose.

3 See this opinion affirmed by the Attorney General in 14 Opins., 135.