present. The trouble arose suddenly and unexpectedly. No one will dispute that the escape of 150 excited and mutinous orientals on Angel Island would have involved great danger to important and valuable property of the United States, pertaining to several different departments of the Government. There were no civil authorities at hand capable of handling the situation. The danger was so imminent that it would obviously have been hazardous to await orders from higher authority. While there was no express statutory authority for the use of the troops, none was necessary. The common law recognizes the right of a nation to protect itself, its agencies and its property against violence. As was said by this office in an extensive discussion of the subject of "Employment of military forces to maintain civil order and obedience to law," officially published to the service in the War Department mimeograph of June 8, 1922, A. G. 381 (May 9, 1922) (Misc. Div.) M-3: "Certainly the Government of the United States may through its various departments protect the property committed to the care of such departments and may defend the operations of such departments against those who endeavor to obstruct them." It would be as superfluous to pass laws to give it that power as it would be to enact a law authorizing a sentinel to guard military property. And the regulation (par. 5b, AR 500-50) above quoted authorizes the military officer in an emergency to intervene for the protection of property committed to other departments of the Government, and to prevent obstructions to their operations.

Held further, That the action in this case was not contrary to the provisions of the Posse Comitatus Act of June 18, 1878 (20 Stat. 152), prohibiting the use of the Army for the purpose of executing the laws, except as expressly authorized by law, for the reason that such enforcement or execution of laws as may be effected or aided by the action of the troops in the emergencies contemplated by paragraph 5b, AR 500-50, is only incidental to the purpose of said paragraph-the protection of Government property.

Held further, That the acceptance by the troops of custody of the five ringleaders and their removal to and detention overnight at Fort McDowell was lawful, as a reasonable precautionary measure contributing directly to the success of the military mission.

Held further, That while there is no legal objection to giving special instructions to the commanding officer, Fort McDowell, covering possible future emergencies of a similar nature, provided such instructions call for no action in violation of existing law, such action is unnecessary and undesirable. The present instance demonstrates that the instructions contained in paragraph 5b, AR 500-50, are sufficient, and an attempt to make them more specific would probably result in embarrassments and complications. 370.6, Apr. 13, 1928.

IN EXECUTION OF CIVIL LAWS

14. The military authorities have no power to order the military police or any other part of the Army, as such, to assist the civil authorities in the execution of the law, except when called upon in the manner provided for in the Constitution of the United States and the acts of Congress. (20 Stat. 152.) This is equally true within as well as without the 5-mile zones around military camps prescribed by the President, within which is forbidden the sale of alcoholic liquors and the keeping of bawdy houses. The foregoing does not contemplate the situation where, under the well-known conditions, military power may by proper authority be exercised in aid of the Federal civil power. 014.1, Mar. 21, 1918.

Under the resolution of March 14, 1912 (37 Stat. 630), and the proclamation of the President of October 19, 1915, made pursuant thereto, it is unlawful to export munitions and arms into Mexico; and section 8, Title VI, act of June 15, 1917 (40 Stat. 217, 225), expressly authorizes the President to employ any part of the land and naval forces to prevent the unlawful exportation of munitions. Since the President has not authorized the employment of the Army for such purposes, the military forces can not be used to stop, search, and seize vehicles near the Mexican border to ascertain whether they are carrying munitions. 000.51, Dec. 13, 1918.

See resolution of January 31, 1922 (42 Stat. 361), in pari materia with resolution of March 14, 1912, supra.

Military police have unlimited police jurisdiction over all persons, military, or civil, within the theater of military operations, within mobilization and concentration camps, and within all Government buildings, depots, grounds, and property over which they are posted, and over all persons subject to military law when outside of the foregoing limits. Field Service Regulations, 1914, paragraph 411. (F. S. R., 1923, par. 723.) It is unlawful to employ, authorize, or permit them to assist the civil authorities, Federal or State, in the execution of the laws except as provided in A. R. 485 (AR 500–50). The use of the military police to aid the civil authorities in the general work of suppressing illegal liquor traffic or vice is unlawful. $70.093, Mar. 25, 1919.

A county sheriff deputized a retired Army officer to accompany him on a whisky raid in the mountains. The officer, having been retired on account of a bad heart which made him unable to climb mountains, refused. The sheriff sought an indictment for failure to obey orders. Advised, That the sheriff's attention be invited to the Posse Comitatus Act of June 18, 1878 (20 Stat. 152), forbidding the use of any part of the Army in the execution of civil laws and to section 2, National Defense Act, declaring retired officers a part of the Regular Army. 210.851, Oct. 11, 1926.

Upon request of the civil authorities for the use of troops in a search for a criminal suspect who was supposed to be in hiding in a wooded area near a military reservation, the commanding officer without authorization from the War Department or the President, sent troops through the wooded area in connection with a training program under the explicit understanding that civilian agents would be present at the time to make any arrest and take into custody any suspected person whose presence would be revealed by the troops. Held, That such action was a violation of the Posse Comitatus Act (20 Stat. 152), and the provisions of AR 500-50 which define the conditions under which officers of the Army will permit troops under their command to aid the civil authorities, and was not authorized. 370.6, May 17, 1930.

FOR GUARDING PRISONERS

15. There is no legal objection to turning over military prisoners for transportation to the Disciplinary Barracks at Fort Leavenworth to representatives of the Department of Justice engaged in transporting civil prisoners to the Federal Penitentiary at Leavenworth, Kans., provided that all expenses incident to such transportation are borne by the War Department. Nor is there objection to representatives of the War Department engaged in transporting military prisoners to Fort Leavenworth taking custody of civil prisoners for delivery to the Federal Penitentiary, provided that the transportation and incidental expenses are borne by the Department of Justice. No representa

tive of the War Department may properly receive any fee, emolument, or other compensation for custody of such civil prisoners, but he may properly be reimbursed by the Department of Justice for any legitimate expense incurred. War Department representatives should not be appointed deputy marshals or guards of the Department of Justice for such purpose. (R. S. 1222.) They should receipt for the prisoners turned over and for the commitment papers, and upon delivery to destination take receipt for the same, turning over such receipts to the representative of the other department. 253, June 21, 1923. There is no express authority, either constitutional or statutory, for use of United States troops to apprehend and hold in confinement, pending arrival of civil authorities, five civilians residing near post indicted for receiving stolen Government property. Such use is prohibited by section 15, act of June 18, 1878 (20 Stat. 152). 370.6, Dec. 30, 1924.

FOR PROTECTION OF FOREIGN STATES

16. Where it appears that roving bands are being organized in this country for the express purpose of destroying property which is essential to the wellbeing and effective military protection of the neighboring state of Mexico, they may under the provision of R. S. 5286 and 5287, be prevented by military force, if necessary, from crossing the border. 000.51, June 28, 1924.

FOR PROTECTION OF GOVERNMENT PROPERTY

17. The act of October 6, 1917 (40 Stat. 385), confers authority upon the Director of the Bureau of Mines to control the distribution and manufacture, as well as the storage, use, and possession, of dynamite or other explosives. There is no provision expressly authorizing the employment of troops, although the resort to such protection is clearly contemplated by the act, and is incidental to the power it confers. Accordingly, upon request duly made, a sufficient number of troops may be lawfully assigned to guard and protect such explosives as are stored within close proximity to a quartermaster's depot. 471.86, Mar. 23, 1918.

The use of troops to guard property of the Alaska Railway, which belongs wholly to the United States, in case of a strike by trainmen, would not be in aid of the civil authorities for the purpose of suppressing disorder, but merely for the guarding of Government property. Such a use is entirely proper and requires no proclamation by the President or other special formality. 370.61, Νου. 5, 1924.

FOR PROTECTION OF MAILS

18. Where the monthly payment of troops at a military post imposes upon the local postal authorities an onerous and dangerous responsibility one morning of each month, which they can not be prepared to meet, it is proper and advisable for the commanding officer of said post to furnish a guard for the postal employee in charge of the funds from the time he receives them at the train until he delivers them at the local bank. 370.6, June 28, 1924.

On request that three enlisted men of the Army from a near-by fort be assigned to accompany shipments of money by registered mail through an uninhabited country, to guard against the possibility of "holdups," Held,

72746-32- -2

That under the "posse comitatus" act of June 18, 1878 (20 Stat. 152), such employment of the Army, being in execution of the civil laws, must depend for its justification on express constitutional or statutory provision, or upon the manifest necessity of an extreme emergency. There being no constitutional provision pertinent to the instant case, and no showing of actual, or even threatened, “insurrection, domestic violence, or combinations," such as would authorize the Executive to use the military forces under R. S. 5299, the commanding officer must be guided by the provisions of AR 500-50, as quoted below, which authorize extraordinary action on his part.

In case of sudden and unexpected invasion, insurrection, or riot, endangering the public property of the United States, or in case of attempted or threatened robbery or interruption of the United States mails, or other equivalent emergency so imminent as to render it dangerous to await instructions requested through the speediest means of communication, an officer of the Army may take such action before the receipt of instructions as the circumstances of the case and the law under which he is acting may justify, and will promptly report his action and the circumstances requiring it to The Adjutant General by telegraph, if possible, for the information of the President.

370.6, Sept. 14, 1925.

FOR RECOVERY OF GOVERNMENT PROPERTY

19. Statement is made that the Singer Manufacturing Co. has been in various ways interfering with the Government's representative in removing Government property from this company's plant at Elizabethport, N. J., and inquiry is made whether the Chief of Ordnance would have the legal right to place armed troops at the plant to prevent such interference. The papers disclose that the actual possession of the premises and of the property claimed to belong to the Government has been continuously in the Singer Co., and is so now, except as the company has released certain articles from time to time in the course of the dismantling and shipping. The company asked for a general release from accountability as a condition precedent to its surrender of the property, and was refused such release of accountability. It now proposes merely to stand on the fact of its actual possession and to maintain what it considers its legal rights. As there is no suggestion of any paramount military necessity warranting the military authorities seizing this property regardless of ownership, a seizure of the premises or property by the use of troops would be unwarranted. The courts should be looked to, if necessary, for relief. 370.9, Nov. 5, 1919.

FOR SUPPRESSION OF DOMESTIC VIOLENCE

20. By section 4, Article IV, Constitution of the United States, and R. S. 5297, the President is authorized, upon application therefor by proper State authorities, to employ such of the land and naval forces of the United States as may be necessary for the suppression of domestic violence. This power and responsibility the President can not delegate to a commanding officer. 6-020, Oct. 25, 1917.

The Federal statutes authorizing the employment of Federal military forces in the suppression of domestic violence are found in R. S. 5297-5301. The War Department does not in time of peace cooperate with or render any assistance to any civil agency for this purpose except as authorized by the President during emergencies in which Federal troops are or may be employed in aid of civil authorities. 000.51, July 10, 1929.

FOR NATIONAL GUARD DUTY

21. On the question raised as to whether secton 15, act of June 18, 1878 (20 Stat., 152), forbidding the employment of any part of the Army as a posse comitatus or otherwise to enforce the laws, except where expressly authorized by Congress, would preclude an officer of the Regular Army serving under a commission in the National Guard from serving with the National Guard in case of an emergency causing the governor to call out the same.

Held, That as section 100, National Defense Act of June 3, 1916, authorizes officers of the Regular Army detailed to duty with the National Guard to "accept commissions in the National Guard, with the permission of the President, determinable in his discretion," and as section 61 of the same act recognizes the rights of the States "in the use of the National Guard within their respective borders in time of peace," the service of the regular officer under his commission as an officer of the National Guard would not be a violation of the posse comitatus act; that while holding a commission in the National Guard under authority of the act of June 3, 1916, he would be under orders of the governor of the State, and for the time being his status as a regular officer would be in abeyance; and that as an officer of the National Guard he would be subject to the lawful orders of the governor of the State. 64–311.4, Jan. 18, 1917.

A person who is both an officer of the National Guard and an officer of the Regular Army may, as a National Guard officer, take part in operations of National Guard troops in aid of civil authorities of the State without rendering himself liable to the penalties of the Posse Comitatus Act of June 18, 1878 (20 Stat. 152), in which case he receives his instructions from the State and not from the War Department. He may not, as an Army officer, take part in such operations without rendering himself liable to the penalties of said act. The two status are distinct, and the distinction should be kept clear. 210.451, May 10, 1927.

Secs.

NATIONAL GUARD IN FEDERAL SERVICE

22. AUTHORITY AND PURPOSE.

23. DATE EFFECTIVE.

24-26. MUSTER OUT.

27. NUMBER.

28-29. SCOPE.

30. STATUS.

AUTHORITY AND PURPOSE

22. Under existing law the President is not authorized to call out the Organized Militia of the States and send it into a foreign country with the Regular Army as a part of an army of occupation, especially where the United States should intervene in the affairs of another nation under conditions not involving actual war. C. 14148-I, Dec. 20, 1911.

The President has full authority, under section 111, National Defense Act, to draft the National Guard into Federal service without having previously called it, under section 4, act of January 21, 1903 (32 Stat. 776), as amended by sec. 3, act of May 27, 1908 (35 Stat. 400); but there is no legal objection to requiring previous call, if administratively determined upon. The call brings the guard,