Imágenes de páginas

fetter the authority to transfer from any gen- / 38. So, also, the act of August 26, 1842, chap. eral head of appropriation left unaffected by 202, authorizes the transfer and application of the previous clause. It applies only to appro- the surplus of appropriations standing to the priations for specific and local objects, from eredit of the War Department to supply the which the act inhibits any diversion. Opinion deficiency of appropriation for preventing and of Feb. 29, 1844, 4 Op. 310.

suppressing Indian hostilities. Opinion of Nov. 32. The President may, if he deems it con-30, 1850, 5 Op. 274. ducive to the public interest, direct transfers 39. The twenty-third section of the act of Auof appropriations from the branch of expendi- gust 26, 1842, chap. 202, authorizes the transfer ture of incidental expenses of the Quarter- and application of the surplus of appropriations master's Department to the other branches of standing to the credit of the War Department, barracks, quarters, &c., and of transportation and not transferred by the Secretary of the of officers' baggage. Opinion of April 21, 1845, Treasury to the general account of moneys not 4 Op. 363.

appropriated, to supply the deficiency of the 33. Congress having taken from the Execu- appropriation for preventing and suppressing tive the power to transfer appropriations from Indian hostilities. Opinion of Dec. 5, 1850, 5 one head of expenditure to another in the Navy Op. 283. Department, no portion of the money appro- 40. Such transfer will not conflict with the priated by the act of June 17, 1844, chap. 107, first article, eighth section, and twelfth parafor books, maps, charts, and instruments, and graph of the Constitution of the United States, for binding and repairing the same for the Hy- nor with the sixteenth section of the act of drographical Office can be transferred and ap- March 3, 1795, chap. 45. Ibid. plied to the building of a house for the superintendent. Opinion of Aug. 18,1845,4 Op. 428. III. Unexpended Balances.

34. The President is not authorized to direct a surplus of an appropriation for the Winne- 41. Moneys appropriated to the service of bago Indians to be transferred to meet expenses the War Department, and remaining unexin the Department of the Interior, for which pended in the Treasury, may be carried to the the appropriation is inadequate, or for which surplus fund, without a report from the Secrenone had been made. Opinion of April 25, tary of War that such moneys are no longer 1849, 5 Op. 90.

| required, after the expiration of two years 35. Nor can the head of the Department find from the calendar year in which they are apsufficient authority in the twenty-third sec- propriated. Opinion of March 30, 1831, 2 Op. tion of the act of August 26, 1842, chap. 202, 442. to authorize him to make such a transfer. 42. Where moneys appropriated to the servThe power given by that act is limited to trans- ice of the War Department remain unexpended fers within the same Bureau, and to appropri- | in the Treasury, and the object of the appropriaations for such objects as are enumerated in tion has been effected, they may be carried to the its twenty-second section. Ibid.

surplus fund within two years from the calen36. The head of a Department is authorized dar year in which they were appropriated, upon by the twenty-third section of the act of Au- | receiving such report from the Secretary of gust 26, 1842, chap. 202, to transfer the surplus War. Ibid. of an appropriation for one or more objects of 43. So, where such moneys, under like cirexpenditure to supply the deficiency of any cumstances, are in the hands of the Treasurer other item of appropriation in the same De- as agent for that Department; in which case the partment or office. Opinion of Nov. 26, 1850, Secretary of War is required to cause them to 5 Op. 273.

be repaid into the Treasury, and they are then 37. The twenty-third section of the said act subject to transfer to the surplus sund. Ibid. is not a temporary but a permanent enactment, 44. When, after the expiration of two years and limits transfers by the heads of Depart from the date of the appropriation, such monments to the surplus of appropriations, whilst eys are in the hands of such agent, the Secrethe power conferred upon the Presidentextends tary of War is required to report the fact to to entire appropriations. Ibid.

| the Secretary of the Treasury, whose duty it

then becomes to cause them to be transferred may be applied to the same service during the to the surplus fund. Ibid.

succeeding or any subsequent year, and does 45. When suclı moneys, having remained un- not lapse into the "surplus fund” until the expended in the hands of the Treasurer as particular object be consummated. Ibid. agent, have been repaid into the Treasury after 51. Conversely, whenever, in any given the appropriation from which they were drawn year, the appropriation for a particular service had been carried to the surplus fund, they proves deficient, a balance remaining of the must also be carried to that fund on being so appropriation for the same service in a prerepaid. Ibid.

vious year may be drawn upon to supply the 46. A transfer of the unexpended balance of deficit; or rather the balance of the preceding the appropriation made by the act of July 2, year commences the service of the new year, 1836, chap. 267, for carrying into effect the and is expended before any question arises of treaty of December 29, 1835, with the Chero the new appropriation; and thus, at the end kees, is not required by law; and, although of each year, the true unexpended balance is two years have elapsed, Congress has shown only what remains unexpended of that single no disposition to abandon the project of their year's appropriation. Ibid. removal, but, on the contrary, passed acts to 52. Where a contract or other claim on the promote the object. Wherefore it is compe-Government is a continuous one, and still curtent for the War Department to make a requi- rent, then the balance remaining of the apsition for such unexpended balance. Opinion propriation made in one year for such service of Feb. 14, 1839, 3 Op. 415.

laps over into the following year, and is con47. The act of March 3, 1839, chap. 231, for tinuously applicable to the same subject. the relief of certain claimants, being for reim- Opinion of Nov. 2, 1854, 7 Op. 14. bursement of a sum of money advanced on ac- 53. Such is the legal effect, even though the count of the United States, comes within the appropriation be but annual in its terms. Ibid. equity of the exception in the sixteenth section 54. It is proper, in such a case, to begin, in of the act of March 3, 1795, chap. 45—" reim- each successive year, by expending the balbursement, according to contract, of any loan ance of the previous year before entering upon made on account of the United States." Opin- | the appropriation for the current year. Ibid. ion of March 15, 1843, 4 Op. 148.

| 55. The act of March 3, 1869, chap. 122, pro48. But if the practice of the Department re- viding for the completion of a custom-house, specting the disposition to be made, after two &c., at Knoxville, East Tennessee, in addition years, of appropriations be settled, such prac- to former appropriations, $5,000," does not retice should be pursued. Ibid.

appropriate any of the unexpended balances of 49. Under the acts of March 3, 1795, chap. 45; such former appropriations which had preMay 1, 1820, chap. 52; and August 31, 1852, viously been carried to the surplus fund under chap. 108, in general, a balance of appropria- the requirernents of law. Opinion of Jan. 5, tion remaining unexpended at the expiration 1870, 13 Op. 181. of two years is carried to the “surplus fund," 56. Under the provisions of the act of July and can be withdrawn therefrom only by new 12, 1870, chap. 251, balances of appropriations appropriation-except in the case of appropria- made for the year 1869–70, of any description, tions for objects to which a duration longer may be applied to the service of the year 1870than two years is assigned by law; as to which, 171, so far as, first, to pay in the latter year and especially expenditures in the War and expenses properly incurred in the former year; Navy Departments, the specific appropriations and, second, to pay dues upon contracts propremain in charge of the latter until, on report erly made within the former year, though such therefrom of the object being consummated, the contracts be not performed till within the latter money is credited to the “ surplus fund” at year. Opinion of July 27, 1870, 13 Op. 289. the Treasury Department. Opinion of Oct. 9, 57. Neither the fifth nor the seventh section 1854, 7 Op. 1.

of that act places any restriction upon the use 50. In general, an appropriation or a balance of balances, first, where they are from approthereof, made in any year for any continuous priations not made in annual appropriation contract or other service of the Government, I bills; second, where they are from appropriations not made especially for a particular fiscal section of that act. Opinion of May 26, 1873, year; third, where they are from appropriations 14 Op. 611. known as permanent; and, fourth, where they are from appropriations known as indefinite. Ibid.

ARMY. 58. The Secretary of the Interior is author- See also ALLOTMENT CHECKS; MILITIA AND ized to apply certain unexpended balances of


yo appropriations to defray certain charges in

SOLDIERS. curred by his Department in connection with the Centennial Exhibition. Opinion of March | As to Pay of Army, see COMPENSATION, III. 3, 1877, 15 Op. 204.

59. The provision in the act of August 15, 1876, chap. 289, making appropriations for the

I. Generally. Indian Department for the year ending June

II. Appointment and Promotion. 30, 1877, namely, “That amounts now due

III. Brcvets. employés for year ending June 30, 1876, may IV. Rank. be paid out of unexpended balance of the in

V. Relative Rank. cidental fund of said year," considered in con

VI. Transfer of Officer. nection with sec. 3682 Rev. Stat.; and held

VII. Resignation. that under that provision amounts due for cler

VIII. Holding Civil Office. ical or official services in the Indian service for

IX. Dismissal or Removal of Officer. the year ending June 30, 1876, may be paid

X. Restoration to Lost Rank. out of the unexpended balance of the inci XI. Allowances to Oficers. dental fund of the Indian service for the same

XII. Pay Accounts of Oficers. year. Opinion of Jan. 21, 1878, 15 Op. 434.

XIII. Longevity. 60. The term "employés," as used in the

XIV. Examining Board. same provision, was meant to include all those XV. Retired List. who performed services in any capacity in the

XVI. Enlistment. Indian service during the year ending June

XVII. Minors. 30, 1876, whose employment was authorized

XVIII. Stoppage of Pay. by law, and whose compensation remained

XIX. Money of Enlisted Persons. unpaid at the date of the act of August 15,

XX. Furlough. 1876. Ibid.

XXI. Discharge.
XXII. Regulations.

XXIII. Civil Authorities.

I. Generally 1. The State of Arkansas, on the 11th of 1. The term “major" in the provision of May, 1864, was in a condition of insurrection the third section of the act of April 24, 1816, against the United States; and an act of as- chap. 69, regulating the pay of battalion and sembly of the State, passed on that day, was regimental paymasters, and providing that not a valid acceptance by the legislature of they shall receive the pay and emoluments of the State of the act of Congress of July 2, a major, may be taken to mean a major of in1862, chap. 130, known as the agricultural fantry. Opinion of Feb. 17, 1825, 1 Op. 70-4. college grant. Opinion of Aug. 16, 1866, 122. The office of Paymaster-General was Op. 11

| within the policy of the act of May 15, 1820, 2. The act of December 13, 1872, chap. 2, chap. 102, and is not affected by the subsedoes not require interest on overdue coupons quent act of the 2d of March, 1821, chap. 13, of the bonds of the State of Arkansas, then Opinion of April 20, 18:26, 2 Op. 27. held by the United States as Indian trust! 3. The Adjutant-General of the Army, under funds, to be exacted by the Secretary of the the act of March 2, 1821, chap. 13, may hold Interior in the arrangement” to be made by at the same time the office of Adjutant-General, the State mentioned in the proviso of the first with the rank of colonel of cavalry, and that of major of the Second Regiment of Artillery. phis, Tenn., in May, 1866. Opinion of July Opinion of April 28, 1834, 2 Op. 644.

13, 1866, 11 Op. 531. 4. Soldiers in the military service of the 11. A post chaplain in the Army is an “offiUnited States may bring actions to recover cer”' within the meaning of the thirty-first damages in State courts for assaults and batter- section of the act of March 3, 1863, chap. 75. ies committed on them by non-commissioned Opinion of Oct. 26, 1868, 12 Op. 519. officers within the limits of a fort. Opinion of ! 12. The present incumbents of the office of Feb. 18, 1840, 3 Op. 498.

judge-advocate are officers of the regular Army 5. Military storekeepers are all of one grade, of the United States, lawfully appointed and and alike subject, as to their place of duty, to commissioned. Opinion of June 14, 1869, 13 the orders of the Secretary of War. Opinion Op. 96. of March 27, 1853, 6 Op. 7.

| 13. Provisions of the act of July 17, 1862, 6. The cadets of the Military Academy at chap. 201, and subsequent statutes relating to West Point appertain by law to the Corps of these officers, considered. Ibid. Engineers, are therefore a part of the land force 14. Regimental quartermasters are not offiof the United States, and as such are subject cers of the Quartermaster's Department; they to the rules and articles of war. But they are are properly staff officers of their respective reginot non-commissioned" officers of the acts of ments, who, besides other duties, are charged Congress and the general regulations, which with the custody and issuing of supplies. Opinexpression means “sergeants and corporals,” | ion of Sept. 2, 1870, 13 Op. 315. and is inapplicable to the cadets. They are 15. Where an Army officer was mustered out inchoate officers of the Army, and subject by of service with one year's pay and allowances, statute and regulation to no discipline incom- | under the third section of the act of July 15, patible with that character. Opinion of July 1870, chap. 294, and in about two years after11, 1855, 7 Op. 323.

ward was reappointed to an office in the Army: 7. The undergraduate cadets, in their in- Held that there was no authority to compel ternal academic organization as officers, non- him to refund such pay and allowances, and commissioned officers, and privates, are not that the same could not be legally retained out subject to the articles of war as respects their of his pay. Opinion of May 6, 1873, 14 Op. relation to one another, but only as respects | 230. their relation to comunissioned officers of the 16. One complete annual return of ordnance Army on duty as such in the academy. Ibid. and ordnance stores, with quarterly reports

8. Army sutlers are not subject to a license noting all intermediate changes since last rein the State of California on sales made by turn, if sanctioned by the Chief of Ordnance them to officers or soldiers of the Army, nor to and approved by the Secretary of War, is suffitax on goods kept by them at a military post cient under the provisions of the acts of March for that purpose; but sutlers may be com- | 3, 1813, chap. 48, and February 8, 1815, chap. pelled to pay license if they enter into general | 38. Opinion of Aug. 2, 1873, 14 Op. 289. trade within the State. Opinion of Oct. 27, 17. Act of June 23, 1874, chap. 499, direct1855, 7 Op. 578.

ing the Secretary of War“to amend the record 9. Brigadier-General Saxton had no power of the said A. H. Von Luettwitz so that he under the oriler of the War Department of June shall appear on the rolls and records of the 16, 1862, assigning him "to duty in the Depart- | Army for rank as if he had been continuously ment of the South,'' to erect at Port Royal, S.C., in service," construed. And held that it is the a judicial tribunal with authority to determine duty of the Secretary, under the act, to erase civil causes between citizens of the United from the rolls and records any entry or stateStates temporarily within that department. ment showing that Von Luettwitz was cashOpinion of Jan. 30, 1865, 11 Op. 149.

iered; but this will not ipso facto restore the 10. The military forces of the United States latter to the office from which he was discan have nothing to do with the redress of missed. Opinion of Aug. 13, 1874, 14 Op. 448. private grievances or prosecutions for public 18. Considering the intent of the act, howwrongs committed during the riots in Mem- ever: Adrised that the President is authorized thereby to immediately appoint Von Luett- of $3 per cord for standard oak wood, do not witz a first lieutenant in the usual way, with extend to retired officers of the Army. Opinion pay to commence from the date of the act. of July 18, 1878, 16 Op. 93. Ibid.

| 24. The words in that section "or an equiv19. Under the act of March 3, 1857, chap. alent rate for other kinds of fuel, according to 106, Brevet Lieutenant-General Scott was en- | the regulations now in existence," are to be titled, when exercising command according to understood as only authorizing a sale of the that rank, and then only, to the staff to which quantity of other fuel for $3 (viz, 1,500 pounds he had appointed General Hamilton; and upon of anthracite coal or 30 bushels of bituminous the retirement of the former from active serv- coal) which, by the regulations, is made the ice, and consequent withdrawal from com- equivalent of a cord of standard oak wood. mand, to wit, on the 1st of November, 1861, | 1bid. the appointment of the latter was ipso jure re- 25. The number and rank of the officers auvoked. Opinion of Nov. 28, 1874, 14 Op. 506. thorized by law to be permanently maintained

20. On the 15th of December, 1870, P., a in the Inspector-General's Department in the captain of cavalry, was discharged from service, Army are fixed by the acts of June 23, 1874, at his own request, under section 3 of the act chap. 458, and December 12, 1878, chap. 2, as of July 15, 1870, chap. 294, receiving a year's follows: One brigadier-general, two lieutenantpay and allowances. On the 19th of May, 1876, | colonels, and two majors. Opinion of Oct. 2, he was appointed a second lieutenant of in- 1879, 16 Op. 638. fantry. Held that the provisions of the second section of the act of March 3, 1875, chap. 159, II. Appointment and Promotion. do not apply; and accordingly that P. is not required to refund the pay and allowances men 26. Under the acts of February 11, 1847, chap. tioned. That section is limited to those who 8, and July 19, 1848, chap. 104, no promotion were mustered out as “supernumerary offi- in the Quartermaster's Department can be cers" under section 12 of the act of 1870, and made from the grade of assistant quartermaster who subsequently to the act of 1875 are re- to that of quartermaster until the number of appointed. Opinion of Nov. 15, 1876, 15 Op. officers in the latter shall be reduced by va177.

cancies occurring, so that the sum total of the 21. Congress adjourned March 3, 1877, with grade shall not exceed the statute standard of out providing for the payment of the Army the peace establishment of the United States. subsequent to June 30 of that year. Inquiry Opinion of April 21, 1855, 7 Op. 108. being made whether, if the necessary funds can 27. An assistant surgeon in the Army was be furnished by individual contribution, they dismissed by the sentence of a court-martial. can properly be used for that purpose, and the He was subsequently nominated as assistant Army thus supported until the next session of surgeon, and confirmed by the Senate, with a Congress: Advised (after reviewing the consti- | recommendation that he should take rank actutional and legislative provisions bearing on cording to the date of his original commission. the subject) that this means of paving the This rank would entitle him, according to the Army cannot properly be employed by the usual rules of promotion, to be appointed a President. Opinion of March 21, 1877, 15 Op. full surgeon. But while he was out of the 209.

Army all the places of full surgeon had been 22. A certificate of merit cannot be issued, filled by the promotion of his juniors. Held under section 1216 Rev. Stat., to a soldier who that the promotion of the juniors was legal, applies for the same after his discharge. It is and that the only benefit which the officer in contemplated by that section that the applicant question could derive from his rank was tlie shall continue to be, at the time of the issuance right to be appointed a full surgeon upon the of the certificate, a soldier of the United States. happening of the next vacancy. Opinion of Opinion of May 9, 1878, 16 Op. 9.

April 22, 1857, 9 Op. 20. 23. The provisions of section 8 of the act of 28. The two regiments of cavalry raised June 18, 1878, chap. 263, giving to Army offi- under the act of March 3, 1855, chap. 169, are cers the privilege of purchasing fuel at the rate a distinct arm of the service, and as such reg

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