1478. So where a soldier, while under a sentence of confinement for a term less than the remaining term of his enlistment (imposed without dishonorable discharge), was for a further offence tried, convicted, and sentenced to dishonorable discharge and imprisonment, and was thereupon duly discharged accordingly, held that the period of the pending confinement under the first sentence was thereupon terminated, leaving to be executed, after the discharge, only the confinement adjudged by the second sentence.' XLI, 576, June, 1879; 61, 424, September, 1893; Cards 2376, 2762, October and November, 1896. 1479. Where a soldier while undergoing a sentence of confinement is brought to trial for a further offence, and, on conviction, is sentenced to a further term of imprisonment, the punishment thus adjudged is cumulative upon that pending, and its execution will properly commence at the date when the pending confinement terminates, whether by expiration of time or by remission. To render a punishment thus cumulative, it is not required that it should be designated as such by the court in the sentence. XXXI, 315, April, 1871; XXXII, 670, June, 1872; XXXIV, 479, September, 1873; XXXV, 433, June, 1874; XXXVIII, 43, April, 1876; 556, April, 1877; XLIII, 102, December, 1879. 1480. Where a deserter under sentence of dishonorable discharge and confinement escaped, pending the confinement again enlisted, deserted from his second enlistment, and, upon arrest, was again sentenced to dishonorable discharge and confinement, held that he was legally liable to be subjected to both terms of confinement, the second as a cumulative punishment upon the first. 38, 124, January, 1890. 1481. Where a soldier at two successive trials for separate offences was sentenced, upon the first trial to dishonorable discharge and imprisonment, and upon the second to further imprisonment, and the two sentences were approved and promulgated in orders bearing the same date; held that, as the law does not recognize fractions of a day, these sentences were to be regarded as having gone into operation at the same moment and taken effect as one sentence, so that the execution of the dishonorable discharge imposed by the former sentence did not affect the enforcement of the punishment of confinement imposed by the latter sentence, but that the same was legally enforceable as cumulative or rather continuing upon the term of confinement imposed by the former sentence. XXXIV, 479, September, 1873. 1482. Held that the act of June 14, 1870 (16 Stats., 151), providing for a deduction on account of good conduct, to be allowed at See paragraph 2, Circular 10, A. G. O., 1896. the end of the confinement, as a deduction from and abridgement of the term of sentence of prisoners convicted of offences against the laws of the United States," and confined under sentence in any State jail or penitentiary, applied to prisoners confined in such prison under sentence of courts martial.1 XXXIV, 22, October, 1872. 1483. Where, pending the confinement, under sentence of a soldier in a military prison, a portion of his term of confinement was by competent authority remitted, held that he remained entitled, upon good conduct, to the abatement provided in general terms by G. O. 64 of 1875; the fact of the remission not affecting his right to the abatement during the continuance of his term as reduced by the remission. XXXVII, 490, April, 1876. 1484. A remission of part of a sentence of confinement has the effect of leaving the reduced sentence as though it were the original; and the prisoner will be entitled to the time allowance for good conduct precisely as if the original term had not been reduced. 44, 66, November, 1890. 1485. The duty of a post commander with regard to the holding and restraint of a prisoner sentenced to be confined at the post is not affected by the fact that the prisoner was adjudged by the same sentence to be dishonorably discharged and has been discharged accordingly. The amenability to prison discipline continues during the term of the confinement; although, except at the Leavenworth Military Prison (see Sec. 1361, Rev. Sts.), the prisoner cannot legally be brought to trial by court martial for misconduct during such term. LVI, 351, July, 1888. 1486. The object of sec. 5 of the Summary Court Act of June 18, 1898, was to make dishonorably discharged military prisoners triable by court martial for offences committed during their confinement. It was not intended to make any other change in the law, and should not be so construed. Card 5589, December, 1898. It does not confer upon courts martial jurisdiction as to offences committed prior to the dishonorable discharge. Cards 7762, 8051, March and April, 1900; 9406, December, 1900. See the subsequent act of March 3, 1875 (1 Sup. Rev. Sts., 89), and G. O. 64, War Department, 1875, referring to this statute (in connection with Sec. 1352, Rev. Sts., providing for the partial remission for good conduct of the sentences of prisoners confined in the Leavenworth Military Prison) and applying to cases of prisoners in military prisons a rule similar to that established by such statute, as follows:-"To equalize the practice in regard to punishment of military prisoners so far as practicable, an abatement of five days for each month of consecutive good conduct may be allowed upon each sentence to confinement for over six months." But see par. 915, Army Regulations of 1895 (1016 of 1901), as to abatement now authorized. But see now sec. 5, of the act establishing the summary court, approved June 18, 1898. (Court-Martial Manual (1901), p. 120.) IMPROVEMENT OF RIVERS AND HARBORS. 1487. When Congress, in the exercise of its exclusive power to direct how the public money shall be employed, has appropriated a certain sum, to be devoted, without exceptions or provisos, to a certain specific internal improvement, it devolves upon the Executive Department of the Government, charged as it is with the execution of the laws enacted by the Legislative, to proceed with the work under the appropriation, without entertaining any question as to the expediency of the expenditure. Thus where Congress had made in general terms an appropriation of a specific amount for improving a certain river, advised that it was for the officer charged with the improvement simply to do the work, without delaying to raise or consider questions or claims of title to the land, &c., to be affected by the improvement; such matters being quite beyond the province of an executive official under the circumstances. XLIII, 101, November, 1879. 1488. Where derelict articles-wrecks for example-are encountered by officers of the Engineer Corps, as obstructions to the improvement of rivers, harbors, &c., required by Congress (in the exercise of its power to regulate commerce) to be cleared and improved, it will be legal and proper for such officers to remove such obstructions in the most effectual manner. If the property is not actually abandoned and is valuable, it will in general be expedient first to give notice to the owners (personally if practicable, or, if not, through the newspapers) themselves to make the removal within a certain reasonable time.1 XXXVI, 569, July, 1875. 1489. Where a contract was about to be made with a civilian for the removal, from a harbor channel, of certain wrecks, not known to be fully abandoned (and directed by act of Congress to be caused to be removed by the Secretary of War), and it was proposed by the engineer officer in charge to stipulate in the contract that the wrecks when removed should belong to the contractor, held that this could not properly be done, the United States having no property in such wrecks (the same not being government vessels), but simply a right to remove them as constituting obstructions to commerce between the States. XLIII, 284, April, 1880. See sec. 4 of act of June 14, 1880 (1 Sup. R. S., 296), which provides for the removal of sunken wrecks and prescribes the giving of such notice. Also, later acts of Aug. 2, 1882 (id. 369); Sept. 19, 1890 (id. 802); and sec. 15 of act of March 3, 1899 (30 Stats., 1152). In an opinion of the Attorney General of May 24, 1877 (15 Opins. 284), it is held that the Secretary of War, where authorized by an appropriation act to improve the navigation of a navigable stream, may cause to be removed wrecks, not yet abandoned but still private property, if he considers them obstructions to navigation. And see his later opinion of April 27, 1880 (16 Opins. 479), as to the authority of the United States to improve navigable rivers to the disregard of individual rights of property in the soil of the bed. 1490. All islands in the Missouri river and in the State of Missouri, which were formed and in existence prior to the admission of the State into the Union, belonged either to the United States or to the parties to whom the United States or Spain had granted them. Upon the admission of the State into the Union the National Government relinquished to the State ownership of the bed of the river1 therein, and since admission of the State islands formed on the bed have belonged to the State, or may belong for school purposes to the counties in which they are situated under an act of the Missouri legislature approved April 8, 1895. The matter of purchasing for river improvement purposes for the United States willow brush and other material, products of these islands, would thus depend upon the question of title to the islands and control thereof at the time the purchases are made. Card 3186, May, 1897. 1491. Section 3736, Rev. Sts., provides that "no land shall be purchased on account of the United States, except under a law authorizing such purchase.` By the act of April 24, 1888 (25 Sts. 94), the Secretary of War was authorized to cause proceedings to be instituted, in the name of the United States, in any court having jurisdiction of such proceedings for the acquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate or prosecute works for the improvement of rivers and harbors for which provision has been made by law." Further provision as to the method of condemning lands for public use was made by the act of August 1, 1888 (25 Stats. 357). The act of April 24, 1888, supra, provided "that when the owner of such land, right of way, or material shall fix a price for the same, which in the opinion of the Secretary of War shall be reasonable, he may purchase the same at such price without further delay; and provided further that the Secretary of War is hereby authorized to accept donations of lands or materials required for the maintenance or prosecution of such works." The authority to condemn, purchase, or "accept donations" applies only to works for which provision has been made by law." Held, therefore, that in the absence of an appropriation for the works or express authority from Congress, the Secretary of War is precluded by Sec. 3736, Rev. Sts., from acquiring lands for river and harbor improvements; the word “purchase" in this statute having been construed in its legal sense as including every mode of acquiring land other than by descent." Card 3896, February, 1898. 1See Pollard v. Hagan, 3 Howard 212; Goodtitle v. Kibbe, 9 id. 471; Doe r. Beebe, 13 id. 25; Withers r. Buckley, 20 id. 84. 2 Cooly r. Golden, 23 S. W. Reporter, 100. See 7 Opin. At. Gen., 114, 121; -Ex parte Hebard, 4 Dillon, 384. A conveyance of lands to the United States is, under this statute, void and inoperative unless the purchase is authorized by Congress. N. S. r. Tichenor, 12 Fed. Rep. 415; 6 Comp. Dec. 791. 1492. The owner of lands flooded by dams constructed in improving navigation is entitled to compensation for damages sustained by such flooding. Held, that the Secretary of War has authority under the act of April 24, 1888 (1 Sup. Rev. Sts., 2d edition p. 584), to pur chase lands flooded by dams constructed in river and harbor improvements, or the right to flood the same, and where springs are located on such lands, this fact may properly be considered in determining the amount to be paid. Card 1074, March, 1895. 1493. The River and Harbor Act of Aug. 18, 1894, sec. 4, makes it the duty of the Secretary of War to prescribe rules and regulations for the use and navigation of all "canals and similar works of navigation," owned, operated or maintained by the United States, etc., and also makes the violation of any of these regulations a misdemeanor punishable in the proper United States court. Held, that this section does not apply in general to natural waterways, though their navigability has been improved and is being maintained by the Government. Cards 424, October, 1894; 1047, March, 1895; 2919, February, 1897; 3449, August, 1897. 1494. Sect. 13 of the River and Harbor Act of Aug. 18, 1894, provides "that after the regular or formal report on any examination, survey, project, or work under way or proposed is submitted, no supplemental or additional report or estimate for the same fiscal year shall be made unless ordered by a resolution of Congress." To construe this language strictly would lead to two conclusions which it is improbable Congress intended, to wit: 1. Additional estimates for work which has become necessary in order to preserve that already done or being done during the fiscal year, cannot be made. 2. The Senate and House of Representatives, acting separately, cannot call for information on this subject. Held, therefore, that the section should be liberally construed as follows: That it prohibits additional estimates (unless ordered by resolution of Congress), extending the work already estimated for; and that the "resolution of Congress" referred to includes separate resolutions of either house. Card 2148, March, 1896. 1495. Work done by the United States upon rivers and harbors is civil work. The fact that military officers are assigned to duty on it does not make it a branch of the military service. The work itself does not relate to military matters or in any way affect the military establishment of the Government. It is paid for, not out of any appropriation for the military establishment but out of a separate civil appropriation for the improvement of rivers and harbors. Held therefore, that par. 808, Army Regulations of 1889, was not applicable to civilians employed in the improvements of rivers and harbors, said 1Gould on Waters, 2d edition, § 243, and authorities cited; Hackstack ". Keshena Imp. Co., 66 Wis. 439; Am. & Eng. Ency, of Law (1st edition), vol. 16, p. 265, note L |