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vation of the colored race, and their reception into the military service is one of the very measures which, in the public expression of this sentiment, have been resorted to as a means of promoting the desired end; and any measure which tends to degrade the colored soldier, or to distinguish him disparagingly from his white comrade in arms, does violence to this sentiment, as well as to the intent of Congress as manifested in its legislation.1 XX, 349.

COMMISSARY SERGEANT.

Sec. 1142, Rev. Sts., makes it the duty of commissary sergeants "to receive and preserve the commissary supplies" at their posts, that is to say, commissary stores belonging to the United States. So held, under this Section, that the Secretary of War would not be authorized to appoint or detail a commissary sergeant to receive and take charge of the subsistence stores purchased from the United States by the 'Commissary of Cadets' at the Military Academy for the use of the cadets; such stores not being property of the United States. XLI, 261.

COMMISSION.

SEE APPOINTMENT.

COMMUTATION.

SEE ONE HUNDRED AND TWELFTH ARTICLE § 5.

COMPANY COMMANDER.

Extract from an endorsement of the Judge Advocate General, in submitting to the Secretary of War a communication, (concurred in by the Judge Advocate General,) from Brig. Gen. E. O. C. Ord, commanding Dept. of Texas, in regard to the relations between the commissioned and non-commissioned officers of companies.

"Though I am aware of no law in terms prohibiting a company commander from delegating to a non-commissioned offi

1For an extended account of the employment of colored soldiers in our wars, see Corbin v. Marsh, 2 Duvall, 209 et seq. (Opinion of Williams, J.)

cer so important a part of his authority and duty as the entertaining in the first instance of the complaints and requests of the men of the company, I can but consider such a delegation to be at variance with the principle and system of our military organization. Further, such a practice, as it appears to me, must tend to render commissioned officers negligent and irresponsible, and non-commissioned officers arbitrary and overbearing. Indeed I can conceive of nothing that would sooner spoil a good sergeant than to place him in a position to determine at his discretion whether the complaints of his inferiors should be entertained by his superior, and to color them at will when transmitted. Thus, though the practice may, in some instances, have been found convenient and innocuous, its effect in general must, I think, be prejudicial to the best interests of the service." XLII, 273.

COMPANY FUND.

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This fund is money of the United States, being the product of property of the United States, viz., rations bought with the public funds originally appropriated by Congress for the subsistence of the army. Once in fact appropriated in another form for the use of troops, the money is properly and customarily employed for their use when it reappears as company fund. The Army Regulations make the company commander the trustee of the fund, and he is required to disburse the same for the benefit exclusively of the men of the company and duly to account for it to the regimental or post commander.2 Where a company goes out of service, leaving any company fund unexpended, the amount reverts to the United States treasury. XXII, 56; XXVIII, 680. A company commander who appropriates to his own use, or neglects duly to account for, a company fund, is liable to a suit by the United States to recover the same; and where, on ceasing to command the company, he neglects to turn over the fund in his hands to his successor in command, the latter has such an interest in the same as to qualify him to sue

1 Compare remarks of reviewing officer in G. C. M. O. 26, Dept. of the Columbia, 1879; do. 2, Id. 1880.

See Army Regulations, § 205–207; G. O. 22, War Dept., 1866; G. O. 94, Id., 1873.

therefor. A commander thus failing or neglecting is also liable to have his pay stopped for the amount of the deficit, and to be proceeded against for embezzlement or misappropriation under Art. 60. V, 588; VIII, 148; XXIII, 13; XXVIII, 680.

COMPENSATION FOR EXTRA SERVICES.

1. Upon an application by a clerk of a bureau of the War Department to be paid an amount in addition to his regular salary, as a compensation for services performed by him for a certain period as acting chief clerk, held, in view of the provisions of Secs. 1764 and 1765, Rev. Sts., that such additional compensation could not be allowed except by the authority of Congress. XXXIX, 643.

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2. Held that a soldier, who was employed in the capacity of an acting assistant surgeon for a certain period in time of war, could not legally be allowed, by the Secretary of War, for such service, any extra compensation, (other than the extra pay provided for "constant labor" by Sec. 1287, Rev. Sts.,) without a violation of Sec. 1765, Rev. Sts., but that Congress alone could authorize the same. XXX, 456. Similarly held that a soldier could not be allowed a compensation, additional to his regular pay, for special services claimed to have been rendered as a spy or scout during the war. XLII, 566.

3. A person while holding the office of U. S. postmasteran office of which the emoluments are "fixed by law," was employed, (without being appointed to office as clerk,) to render clerical services to an ordnance officer. Held that he could not legally be paid, out of the appropriation for the ordnance department or otherwise, (in the absence of authority of Congress,) any extra compensation for such services, since such compensation would be within the prohibition of Sec. 1765, Rev. Sts. And remarked that it did not except the case from the statute that the postmaster had an assistant who performed the work and received the emoluments of the post office while he (the postmaster) was acting as clerk in the ordnance office; postmasters' assistants not being recognized by

1Compare Hoyt v. United States, 10 Howard, 141; United States. Shoemaker, 7 Wallace, 342; Stansbury v. United States, 8 Wallace, 34.

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law as public officers, but being merely employees of the postmaster, who alone is responsible to the United States for the performance of the duty and legally entitled to the salary of the office. XXXIX, 553; XLI, 300.

4. Held that the existing law prohibiting the payment of extra compensation to salaried officers of the United States did not affect the right of an officer of the army to receive from a State the salary of a State office exercised by him during the operation of the Reconstruction Laws, (XXX, 159;) or to receive the amount of a reward offered by the Governor of a State for the performance of certain public service. XXXIV, 388.

That neither an officer, nor an enlisted man, (except under Sec. 1287, Rev. Sts.,) can receive compensation for services performed as a clerk of a court martial, without a violation of Sec. 1765, Rev. Sts.,-see CLERK § 4; EXTRA DUTY PAY § 4.

As to the distinction between receiving compensation for extra service and receiving double compensation for two distinct offices, see RETIREMENT § 14.

COMPENSATION FOR PROPERTY TAKEN. FOR PUBLIC USE.

The fact that a person who has perfected an invention is an officer or employee of the United States can affect in no manner either his right to procure a patent for said invention or to dispose of the same or of its use to the United States, or the authority of the proper department of the government, (if furnished with funds applicable to the purpose,) to purchase such invention or its use, and pay a reasonable compensation or royalty for the same. So, if the government, in the absence of any contract, takes and uses in the military or public service an invention which has been patented by an officer, soldier, or employee connected with the army, such officer, &c., has, under the provision of the Vth Amendment of the Constitution, the same right to a "just compensation" for such use that any civilian would have under the like circumstances. If indeed, while performing his own proper

'See case of Burns v. United States, reported in 4 Ct. Cl. 113, and 12 Wallace, 246.

2See Report of Commission on Ordnance; Ex. Doc. 72, Senate, 37th Cong. 2d Ses., pp. 569-571, (case of Rodman cannon.)

duties, the officer, &c., in experimenting, framing models, &c., for his invention, has availed himself of the tools or materials of the government or other facilities afforded by a government workshop, &c., this fact is to be considered in connection with the question of the quantum of the compensation to be awarded him. XXI, 413.

SEE CLAIMS § 7, 9.

CONDUCT TO THE PREJUDICE OF GOOD ORDER AND MILITARY DISCIPLINE.

SEE SIXTY SECOND ARTICLE.

CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN. SEE SIXTY FIRST ARTICLE

CONFESSION.

SEE EVIDENCE § 13.

CONFINEMENT.

SEE IMPRISONMENT.

CONTEMPT OF COURT.

See EIGHTY SIXTH ARTICLE.

ONE HUNDRED AND FIFTEENTH ARTICLE § 5.
WITNESS § 16, 23, 31, 34.

CONTINUANCE.

See NINETY THIRD ARTICLE.

CONTRACT.

1. It is only an express contract which, (in the absence of special authority from Congress,) can legally be entered into by the Secretary of War, or a military officer, or can be recognized and acted upon as binding upon the United States. Claims against the United States arising upon alleged implied contract cannot be entertained, but the claimants must be referred to the Court of Claims or Congress. [See CLAIMS §6.] Further, the contract, to be legally made or recognized

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