ler is one of the means authorized by Congress in the exercise of the war power intrusted to it by the Constitution." This opinion, however, further holds, (to cite from the headnote:) "But sutlers may be compelled to pay license if they enter into general trade within the State." So, in a case of a trader at a military post in a Territory, by whom liquor was kept for sale as a part of his stock, who addressed to the Secretary of War an inquiry as to whether he could legally be compelled by the Territorial authorities to pay a tax for a license to sell liquor, held, that, inasmuch as the business of post traders extends to the making of sales to civilians,their establishments having originally been authorized "for the accommodation of emigrants, freighters, and other citizens," and their trade having never been subsequently restricted to persons connected with the army,—they could in general legally be required by the local authorities of the State or Territory to take out and pay for licenses in the same manner as other merchants engaged in similar trades;1 but remarked that the question of the legality of such a tax was rather one for the local courts than for the Secretary of War. XXX, 177; XXXVI, 595; XXXIX, 395; XLI, 306; XLII, 83; XLIII, 155.

8. The mere fact that a post trader carries on business on a military reservation in a Territory cannot, (in the absence of any provision in the organic act relieving him therefrom,) affect his liability to be taxed by the civil authorities; nor can such liability be affected by the fact that he carries on business on a military reservation within a State, unless exclusive jurisdiction over the same has been ceded to or reserved by the United States. XLIII, 155. [See CIVIL PROCESS § 4; TAX § 3.]

9. Held that a post trader duly appointed for a military post might properly be authorized to erect on the post reservation, on a site to be selected by the post commander, such buildings as were necessary or desirable for his business.

'This view was concurred in by the Department of Justice. See opinion of the Solicitor General published in G. O. 11, Hdqrs. of Army, 1880. Also-on the point that the law still recognizes the civil branch of the business of traders-see the opinion of the Attorney General, published in G. O. 112, Hdqrs. of Army, 1879.

XXXIII, 453. And held also that, on his appointment or employment being terminated, he would properly be allowed a reasonable time to remove such buildings. XLI, 122.

10. Held that a post trader, whether appointed by the authority of the Act of July 15, 1870, (Sec. 1113, Rev. Sts.,) or of that of July 24, 1876, was not-inasmuch as he did not exercise a public function or act for or represent the United States in any particular-a "person holding a commission or appointment under the United States," in the sense of Sec. 1854, Rev. Sts., and was therefore not ineligible to be a member of the legislature or to hold office under the government of a Territory. XLII, 46.

11. A post trader cannot legally trade with Indians in the Indian country without being specially licensed therefor according to the provisions of Sec. 2129, Rev. Sts. XLII, 400. There is nothing in the appointment or office of a post trader from which there can be implied any special authority to trade with Indians, or which can exempt him in any measure from the application of the laws, (see Tit. XXVIII, ch. 4, Rev. Sts.,) prohibiting or restricting such trade. So where a post trader had been authorized, (under Sec. 2139, Rev. Sts.,) to keep liquor at a military post in the Indian country for the pur. poses of sale, under regulations, to officers and soldiers, held that the authority could not operate as a license to make sales of the same to Indians. XLI, 544.

12. Held that a post trader could not, against his will, be compelled by the post council or post commander to sell spirituous liquors. Where a trader refuses to keep and sell any particular article or articles which, in the opinion of the council and commander, he should trade in, the only remedy is by an appeal to the Secretary of War, who, if he deems the refusal unreasonable, may cancel the trader's license. XLIII, 166.

1See these conclusions concurred in, in a subsequent opin. ion of the Attorney General, in XIV Opins. 125.

2 See extracts from the confirmatory opinion of the Attorney General, published in G. O. 112, Hdqrs. of Army, 1879.

POWER OF ATTORNEY.

A contractor having a claim against the United States, executed a power of attorney to a party, (a lawyer,) authorizing him to represent him in prosecuting his claim before the War Department, &c., and to receive for him payment of such amounts as should be allowed him. The power was expressed to be "irrevocable," but did not in terms vest the attorney with any property or interest in the claim, nor did it appear from the relations of the parties or otherwise that any such interest existed. Subsequently, and before the allowance of the claim, the claimant, by a second power, expressly revoked the former power and substituted another person as attorney in the place of the party originally constituted. Held that the first power was not in itself a power coupled with an interest; that the fact that fees were probably to be earned by the attorney did not, (in the absence of a special contract making the same a lien upon the amounts authorized to be received under the power,) constitute an interest therein;' that the word "irrevocable," as employed in the power was under the circumstances without legal significance or effect;' that such power was therefore revocable at the pleasure of the claimant; and that the attorney substituted by the second power would accordingly properly be recognized at the War Department. XXXI, 164.

SEE CONTRACT § 20.

PRESIDENT, I-AUTHORITY TO CONVENE GENERAL COURTS MARTIAL.

1. The President is empowered to convene general courtsmartial, not merely in the class of cases specified in the 72d Article of War, (viz., where a military officer, thereby authorized to convene such a court, is the "accuser or prosecutor" of an officer in his command whom it is desired to bring to See Bristol's case, XI Opins. of Attys. Gen. 7.

Pratt v. United States, 3 Ct. Cl. 117; Hunt v. Rousmanier's Admrs. 8 Wheaton, 174.

3 Compare opinion of the Attorney General of February 7, 1879, (XVI Opins..)

trial,) but, generally, and in any case, by virtue of his authority as Commander in Chief of the Army. As such, he is authorized to give orders to his subordinates, and the convening of a court martial is simply the giving of an order to certain officers to assemble as a court and exercise certain powers conferred upon them when so assembled by the Articles of War. [See COURT MARTIAL, I § 1.] This general power has been exercised in repeated instances by the President since the formation of the government. Indeed, if the same could not be exercised, it would be impracticable, in the absence of an assignment of a general officer to command the Army, to administer military justice in a considerable class of cases of officers and soldiers not under the command of any department, &c., commander, as a large proportion of the officers of the general staff for example. XXXIII, 603.

2. A convening of a general court martial nominally by the Secretary of War is in law a convening by the President, and therefore as legal as if the President himself had signed the order. IX, 44. [See SECRETARY OF WAR.]

PRESIDENT, II-AUTHORITY OVER THE PROCEEDINGS AND SENTENCES OF COURTS MARTIAL.

1. In cases tried by general courts martial convened by himself, either under his general authority as commander-inchief, (see PRESIDENT, I,) or as provided in the 72d Art. of War; as well as in cases of sentences imposed upon general officers and of sentences of death or dismissal adjudged in time of peace, (see Arts. 105, 106 and 108;) as also in cases submitted to him for action in time of war under Art. 111,— the President acts as Reviewing Authority, and may approve

'The authority of the President as Commander-in-chief to institute general courts martial has been in fact exercised from time to time, from an early period, in a series of cases, commencing with those of Brig. Gen. Hull, Maj. Gen. Wilkinson, and Maj. Gen. Gaines, tried in 1813-1816, and including that of Bvt. Maj. Gen. Twiggs, tried in 1858. His authority in this particular has recently been in substance affirmed by the Judiciary Committee of the Senate, in Report No. 868, dated March 3, 1879, Forty Fifth Cong. 3d Session. [A single member of the Committee apparently dissented, in a subsequent report of April 7, 1879, Mis. Doc. No. 21, 46th Cong., 1st Ses.]

390 PRESIDENT, III—AUTHORITY TO RESTORE TO ARMY.

or disapprove in whole or in part the proceedings or sentence, or, in approving, mitigate the punishment. But when final action has been taken by him in any of these cases, his func tion as reviewing or confirming authority is exhausted. Where indeed he has approved or confirmed a punishment, and the same remains in any part unexecuted, he may of course exercise the quite distinct power of pardon; but an approval or disapproval once given by him, and duly notified to the accused, though his action may afterwards be discovered to have worked an injustice,-is beyond his power to revise, reverse, or modify. XXXVIII, 104; XLII, 91.

2. So, where a legal sentence adjudged by a court martial has once been duly executed, the same is irreversible and cannot be rescinded or modified by virtue of any executive authority of revision or pardon vested in the President. However severe or unjust such a sentence may have been, or whatever irregularity, (short of an absolutely fatal defect,) may have characterized the proceedings, the case, after the sentence, as approved, has once taken effect, is wholly beyond executive control. XXXVI, 216, 274, 330; XXXVII, 243, 390, 420; XXXIX, 234, 242, 248.

PRESIDENT, III-AUTHORITY TO RESTORE TO THE ARMY.

While, as provided in Sec. 1228, Rev. Sts., an officer duly dismissed from the army by sentence of court martial can be restored to it only by a new appointment; so, except by a new appointment, the President cannot restore an officer separated from the army otherwise than by sentence, viz. by summary dismissal by order, or by being "wholly" retired, or by the acceptance of a resignation. Thus separated, the officer is made a civilian as effectually as if he had been dismissed by sentence; and, as to a readmission to the service, he is in precisely the position of a civilian who has never been in the army at all. He can therefore be admitted to it only in the mode pointed out in the Constitution, (Art. II, sec. 2, § 2.) A revocation of the order by which he was dismissed or wholly

Such a sentence is "no longer subject to review by the President." XV Opins. of Attys. Gen. -, (Opinion of June 6, 1877.) And see in this connection, DISMISSAL, I, 5, 6; Id. IÍ § 8; DISCHARGE § 13; NEW TRIAL; PARDON § 4; REVIEW ING AUTHORITY § 8; SENTENCE § 15-and authorities cited

in notes to same.