MILITARY RESERVATION.'

1. A military reservation, being simply territory of the

The Constitution, (Art. IV, Sec. 3, § 2,) has vested in Congress the exclusive power "to dispose of and make all needful rules and regulations respecting the territory," (held in U. S. v. Gratiot, 14 Peters, 537, to mean "lands,") "or other property belonging to the United States." As a consequence perhaps of the indefiniteness of this grant, (see VII Opins. of Attys. Gen. 574,) no general enactment providing for the setting apart of land for military reservations has ever been made by Congress. In a few cases, indeed, a special authority to establish a military reserve has been conferred upon the President by statute, but the great majority of the military reservations heretofore located or now existing have been made by the President without any such specific authority whatever. But though no general authority has been directly given by Congress for the reserving of lands for military purposes, an authority for the purpose has been deemed to exist, and this authority is found in the usage of the executive department of the government, as indirectly sanctioned by Congress in repeated pre-emption Acts, Acts relating to the survey of the public domain, appropriation Acts, &c., in which lands reserved for military purposes by the President have been in general terms excepted from sale, exempted from entry, &c., or special provision has been made for the cost of improvements to be erected upon the same. In Grisar v. McDonald, 6 Wallace, 381, the U. S. Supreme Court, by Field J., observes:-"From an early period in the history of the government, it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses." Further— "The authority of the President in this respect is recognized in numerous Acts of Congress." The court then cites several statutes as containing this recognition, including the preemption Acts of May 29, 1830, and Sept. 4, 1841, and adds— "The action of the President in the making the (military) reservations," (the title to which was at issue in the particular case,) "was indirectly approved by the legislation of Congress in appropriating moneys for the construction of fortifications and other public works upon them." And see XII Opins. of Attys. Gen. 381; XIV Id. 182; Wilcox v. Jackson, 13 Peters, 512; United States v. Hare, 4 Sawyer, 653.

It is moreover to be noted that the provision of the Act of 1841, referred to by the Supreme Court, has been incorporated as a general enactment in the Revised Statutes, in the Chapter, (Ch. 4 of Title XXXII,) on Pre-emptions; Sec. 2258

2

United States withdrawn from sale, pre-emption, &c., the mere fact of the establishing of such a reservation cannot affect the power of the State or Territorial authorities, (according as it may be located in a State or Territory,) to serve civil or criminal process therein, or to attach or levy upon personal property, except in so far of course as such service may be specially precluded or restricted, by law, as to military persons in general.3 Where indeed there has been a cession of exclusive jurisdiction over the land by the State to the United States, the question whether the State authorities may still serve process within the reservation on account of liabilities incurred or crimes committed outside of its limits, expressly excepting from the lands of the United States "subject to the rights of pre-emption""lands included in any reservation by any treaty, law, or proclamation of the President for any purpose." [And see Sec. 2393, specifically excepting military reservations from the operation of the laws authorizing the establishing of town-sites.]

The "proclamation" of the President reserving lands for military purposes is usually in the form of a military General Order, issued by the Secretary of War, whose act in this, as in other administrative proceedings pertaining to the military administration, is in legal contemplation the act of the President whom he represents. [See SECRETARY OF WAR.] But no head of a department or executive official inferior to the President can, of his own authority, make a reservation of public lands. The power is vested only in Congress and the President. United States v. Hare, 4 Sawyer, 653, 669.

[In this connection may be noted the ruling of Atty. Gen. Bates, (X Opins. 359,) in opposition to that of Justice McLean of the Supreme Court, (in United States v. The Railroad Bridge Co., 6 McLean, 517,) but apparently concurred in by Atty. Gen. Williams, (XIV Opins. 246,)-to the effect that where a tract of land of the United States has once been legally reserved for military purposes, the President is not empowered, in the absence of authority from Congress, to relinquish such reservation and restore the land reserved to the general body of the public lands.]

'See VII Opins. of Attys. Gen. 574-5; also XIV Id. 557. 2See opinion of Judge Advocate General published in G. O. 30, Hdqrs. of Army, 1878; also CESSION OF JURISDICTION § 1.

3 As by Sec. 1237, Rev. Sts., exempting enlisted men from arrest for certain debts; or by the operation of the provisions of the 59th Article of War as to the form to be observed in making criminal arrests of military persons. And see CIVIL PROCESS § 2, 3.

will depend upon the terms of the cession. XXXIX, 541. [See CIVIL PROCESS § 4.]

2. Held that an Act of Congress granting a Railroad Company a right of way through "the public lands" of the United States, did not authorize it to enter and construct a track upon the soil of a military reservation, the same being no part of the "public lands"; and that such entry was therefore a trespass. XXXIX, 146.

3. Land which has been set apart as a portion of an Indian reservation under a treaty can not be occupied as a military reserve; nor can even a military post be maintained thereon, in derogation of the terms of the treaty or against the consent of the Interior Department. XXXVIII, 179.

4. Held that the Act of March 3, 1875, c. 151, "to protect ornamental and other trees on government reservations and on lands purchased by the United States," &c., which makes penal the unlawful cutting or injuring of such trees, was clearly not intended to, and did not, preclude the reasonable cutting of wood on military reservations, under the direction of the proper officer, for the supplying of the necessary fuel for the garrisons stationed thereon; the authority to establish a reservation, where in fact lawfully existing, being deemed to include an authority to efficiently maintain the same when established. XXXIX, 8.

5. Held that the right to the "free and open exploration and purchase" of mineral lands, accorded to citizens, &c., by Sec. 2319, Rev. Sts., could not authorize an entry, for the purpose of prospecting for mines, upon a military reservation once duly defined and established by the President; the mineral lands intended by the statute being clearly such as are included within the "public lands" of the United States. XXXVIII, 596. [See § 2, note, supra.]

'Wilcox v. Jackson, 13 Peters, 499, 513; V Opins. of Attys. Gen. 578; VI Id. 670; VII Id. 574.

2By Art. VI § 2 of the Constitution, "all treaties made under the authority of the United States" are declared to be "the supreme law of the land"; and Indian reservations "have generally been made through the exercise of the treatymaking power, and in fulfillment of treaty obligations." XIV Opins. of Attys. Gen. 182. That land cannot be reserved or occupied for military purposes to the prejudice of a title previously vested in an individual or a corporation, see, further, IX Opins. 339; XIII Id. 469.

6. Where certain persons had entered unlawfully upon a military reservation, and had proceeded to cultivate the soil of the same for their personal benefit and to lead off water, needed for the use of the garrison, in order to irrigate the ground so cultivated,-advised that the commandant be instructed to give such persons reasonable notice to quit with their property, and if they did not comply, to remove them by military force beyond the limits of the reservation.' XLII, 256.

7. In the absence of any statute directly or by necessary implication extending the powers of the local government of the District of Columbia over the military reservation and post at the Arsenal in Washington, held, (May, 1879,) that the Health Officer appointed by the Commissioners, (constituting such government,) would not be empowered of his own authority and without the consent of the military commander, to enter upon such reservation, and remove or abate a nuisance deemed by him to exist thereon. The effect of the legislation in regard to the government of the District is to except therefrom the public buildings and grounds of the United States, which are left to the charge of certain specified officials. Even farther removed from such government is the reservation at the Arsenal, the same being a military post commanded by the President through a military subordinate, and governed by military orders and regulations. XLII, 270, SEE CESSION OF JURISDICTION § 1, 5.

CIVIL PROCESS § 4, 5.

POST TRADER § 8.

PUBLIC PROPERTY-DISPOSITION OF § 2, 3, 9, 10, 11.

MILITARY STOREKEEPER.

1. Held that military storekeepers, though without specific rank till after the passage of the Act of July 28, 1866, were previously commissioned officers of the army; and that, therefore, a military storekeeper, appointed in 1861, though

'As to the authority to remove trespassers from military reservations, see III Opins. of Attys. Gen. 268; IX Id. 106, 476; G. O. 74, Hdqrs. of Army, 1869. That this authority is not deemed to be affected by the provision of s. 15 of the Act of June 18, 1878,-see ARMY-EMPLOYMENT OF FOR CIVIL PURPOSES § 6.

his rank as captain dated only from the date of said Act, was entitled to the increased pay on account of length of service provided for commissioned officers of the army by Sec. 1262, Rev. Sts., according to the date of his original appointment. XXIII, 475; XXX, 78; XXXVI, 529.

2. Held, in view of the provisions of pars. 30 and 31, Army Regulations, that there could be no legal objection to an exchange between a storekeeper with the rank of captain and a captain of infantry. XXX, 50.

MISAPPROPRIATION.

SEE SIXTIETH ARTICLE § 13, 15.

MITIGATION.

SEE ONE HUNDRED AND TWELFTH ARTICLE § 6.

MOUNTED PAY.

SEE PAY AND ALLOWANCES § 15.

MUNITIONS OF WAR.

Congress, by the Act of July 27, 1868, in authorizing the construction and maintaining of a Toll Bridge between Georgetown, D. C. and the Virginia shore of the Potomac, expressly provided that such bridge should remain "open and free for the passage of troops and munitions of war by the United States, without charge or compensation of any kind." Held, in view of the fact that this statute was enacted, not in war nor in contemplation of war, but at a time of peace, that the proviso should be regarded as of general application and as requiring the Bridge Company to allow the transport of ordnance and military stores of the United States across the bridge free of toll at all times. But held that the permanent use of the bridge as a support and duct for the telegraph wire connecting the office of the Chief Signal Officer in Washington with the Signal Post at Fort Whipple, Va., could scarcely be considered as a "passage" of a munition of war, and that the Company would therefore properly be compensated for such use, in a reasonable sum, from the annual appropriation for the Signal service. XXVIII, 579.

SEE NINTH ARTICLE.

CAPTURED PROPERTY § 1.