That the prohibition applies only to standard printing and does not apply to the ordinary work which is done in executive departments upon mimeograph and multigraph machines and that mimeographing and multigraphing are not printing within the meaning and prohibition of the above statute. 486.4 June 10, 1920.

WAR DEPARTMENT

Secs.

1004. ORDERS.

1005. SECRETARY AND ASSISTANT SECRETARY.

ORDERS

1004. Charges were referred for trial by the commanding general, Third Corps Area, on July 25, 1922, to Captain A, Camp Humphreys, Va., trial judge advocate of a general court-martial convened at that camp. The trial took place on August 1, 1922, and accused was found guilty and sentenced on the same day. On August 7, 1922, the commanding general, Third Corps Area, approved the sentence and ordered it executed, and on August 16, 1922, forwarded it to this office. On July 24, 1922, G. O. 32, W. D., whereby jurisdiction over Camp Humphreys was transferred to the District of Washington, was prepared. It was not promulgated, however, until August 17, 1922. General orders and regulations are effective only from the date of promulgation, unless otherwise provided for therein. The court and the commanding general, Third Corps Area, had jurisdiction in this case. C. M. 153282.

A War Department general order transferring a camp from a corps area to the District of Washington became operative on the date of its promulgation by the War Department rather than on the date on which it was actually received at headquarters of the corps area. (Dig. Op. J. A. G., 1912, p. 276.) 250.401, Sept. 13, 1922.

SECRETARY AND ASSISTANT SECRETARY

1005. Discretionary authority vested in the Secretary of War by statute can not be delegated by him. (Dig. Op. J. A. G., 1912, pp. 202, 778.) He can not delegate to the Chief of Ordnance discretionary authority conferred by act of May 22, 1896 (29 Stat. 133), upon Secretary of War to make loans or gifts of condemned ordnance. 400.702, July 11, 1921.

The Secretary of War may lawfully deputize a lieutenant of the Engineer Corps or any other person, to accept conveyances of real estate or rights or interest therein on behalf of the United States, the acquisition of which has been approved by the Secretary of War. 601.1, May 15, 1930.

1006. ABANDONMENT OF LAND-GRANT RAILROADS. 1007-1017. ACQUISITION.

1018. ARLINGTON MEMORIAL.

1019-1025. BURIALS.

1026-1033. CIVIL LAWS AFFECTING MILITARY RESERVA

TIONS.

1034-1037. CONSTRUCTION OF GOVERNMENT BUILDINGS. 1038-1040. CONVEYANCES.

1041. DEMOLITION OF BUILDINGS.

1042-1044. EASEMENTS FROM THE UNITED STATES. 1045-1046. EASEMENTS OR LICENSES TO THE UNITED

STATES.

1047-1052. EXCHANGE.

1053. GRANTS TO STATES, COUNTIES, AND MUNICIPALITIES.

1054-1063. INTERDEPARTMENTAL.

1064-1068. JURISDICTION.

1069-1085. LEASE FROM UNITED STATES.

1086-1097. LEASE TO UNITED STATES.

1098-1142. LICENSE FROM UNITED STATES.

1143. MEMORIALS.

1144-1162. MILITARY POSTS.

1163-1164. OFFICIALS.

1165. PROTECTION.

1166-1169. REPAIR, MAINTENANCE, AND IMPROVEMENT. 1170-1179. SALE.

1180-1190. TITLE.

1191-1192. TRESPASSERS.

ABANDONMENT OF LAND-GRANT RAILROADS

1006. The question is whether or not a railroad company can be compelled to rebuild and operate a small section of its line, recently abandoned, in view of such railroad having originally been constructed with Government aid. It does not appear by what authority such service was abandoned and the rails removed; nor whether or not any persons were inconvenienced by such abandonment of service except the Government, which used said line for the transporta

72746-32-32

tion of stone and desires to continue such use; nor does it appear what the expense would be to reconstruct and operate said abandoned line; or whether or not the railroad company is operating its entire system at a profit. Having received aid for the construction of its line by grant of free right of way and land grants as authorized by acts of Congress, and having located and constructed its line pursuant to such authority, a change of location could not be made without express authority. (Brown v. Atlantic, etc., R. Co., 55 S. E. (Ga.) 24; Lusby v. Kansas City, M. & B. R. Co., 19 So. (Miss.) 239; 36 L. R. A. 510, and note.) A railway company may not abandon any part of its lines. (State v. O. C. Trust Co., 215 Fed. 307; State v. Dodge City, M. & T. R. Co., 36 Pac. (Kan.) 755; 24 L. R. A. 564, and note; Brownell v. Old Colony R. Co., 41 N. E. (Mass.) 107; 29 L. R. A. 169.) The State, or an interested individual, by mandamus proceedings, may compel a railway company to repair, replace, or operate its railroad in accordance with its charter obligations. (Northern Pac. R. Co. v. Dustin, 142 U. S. 492; State v. Hartford & N. H. R. Co., 29 Conn. 538; Union Pac. R. Co. v. Hall, 91 U. S. 343; State v. Dodge City, M & T. Co., supra; State v. B. & M. T. Co., 43 Atl. (N. J. Law) 715; 45 L. R. A. 837; Rex v. Severn & W. R. Co., 2 Barn. & Ald. 646.) While recognizing the obligation to operate the road, the writ has generally been denied, however, when the railway company is insolvent or financially unable to repair, replace, or operate the abandoned line, or when the expense thereof would be so great and the returns so small as to imperil the entire system. (State v. Dodge City, M. & T. R. Co., supra; State v. O. C. Trust Co., supra; Jack v. Williams, 145 Fed. (C. C.) 281; Ohio & M. Ry. Co. v. People, 11 N. E. (III.) 347.) The right to compel a railway company to replace or operate an abandoned line is also denied by many strong courts when its charter merely permits the construction, maintenance, and operation of the railroad and is not mandatory in its terms. (Northern Pac. R. Co. v. Dustin, supra; San Antonio Street R. Co. v. State, 39 S. W. (Tex.) 926; 35 L. R. A. 662; State v. Helena P. & L. Co., 56 Pac. (Mont.) 685; 44 L. R. A. 692; Reg. v. Great Western R. Co., 62 L. J. Q. B. (n. s.) 572.) But this distinction is not recognized by some other courts. (State v. Hartford & N. H. R. C., supra; State v. Spokane S. R. Co.. 53 Pac. (Wash.) 719; 41 L. R. A. 515; Atty. Gen. v. West Wis. R. Co., 36 Wis. 466; Gates v. Boston & N. Y. Air Line R. Co., 5 Atl. (Conn.) 695.) Independently of its charter contract, the acceptance from the State by a railway company of land grants in aid of construction constitutes a contract with the State, obligating the company to continue operation of such aided lines until relieved by legislation. (Atty. Gen. v. West Wis. R. Co., supra; State v. Sioux City & P. R. Co., 7 Nebr. 357; Farmers Loan & T. Co. v. Henning, 8 Fed Cas. 1045 (No. 4666); see, however, State v. Des Moines & Ft. D. R, Co., 51 N. W. (Iowa) 38.) In view of the additional obligations created by the acceptance of land-grant aid, the railroad company, in the instant case, is bound, under the authorities cited, to replace the abandoned line upon demand by the United States and, upon refusal so to do, reconstruction thereof may be compelled by appropriate proceedings. 453, Aug. 5, 1920.

Secs.

ACQUISITION

1007-1013. FOR MILITARY PURPOSES.

1014. FOR INLAND WATERWAYS.

1015. FOR RIVER AND HARBOR PURPOSES.

1016. FOR ROADS.

1017. FOR TARGET RANGES.

Secs.

FOR MILITARY PURPOSES

1007-1012. AUTHORITY.

1013. COMPENSATION.

AUTHORITY

Secs.

1007. IN GENERAL.

1008. ACT OF AUGUST 1, 1888.

1009-1012. ACT OF JULY 2, 1917.

IN GENERAL

1007. Real estate not needed by the Government can not lawfully be acquired by the Government for the purpose of exchanging it for real estate which is needed by the Government. Such action would directly contravene R. S. 3678 and would permit the Government to do indirectly that which it can not do directly. 601, June 19, 1918.

Since no appropriation now exists to pay for the land, the expenditure of money incident to the trial of condemnation proceedings, and the prosecution of such proceedings in judgment, is not justified. No executive branch of the Government has the power to prosecute condemnation proceedings to acquire private property where no funds are available to pay for the property upon completion of the proceedings. Admittedly, no authority exists for the institution of condemnation proceedings to acquire land prior to an appropriation, or at least a specific authorization by Congress for that purpose, and where funds were available at the time the proceedings were commenced, but were subsequently withdrawn by Congress, such act operates as an absolute suspension of the power to proceed, and the department thereby is placed in a position similar to what would have existed had no appropriation been made. 601.1, Jan. 18, 1922.

Where condemnation proceedings are brought by the Government for the acquisition of land, if the funds appropriated should be inadequate to pay the full amount of the award, request must be made of Congress for an additional appropriation. The difference can not be "certified to Congress" for an appropriation, as this procedure is authorized only in case the claim is based on a legal liability of the Government, as, for example, where the law authorizes a thing to be done without limit as to the expense, or where the claim is based upon a contract under an appropriation adequate to its fulfillment but which appropriation has lapsed and been carried to the surplus fund, and must be reappropriated I efore it can be used. 601.1, Sept. 22, 1924.

ACT OF AUGUST 1, 1888

1008. The Government desires to obtain title to certain lands to be used in connection with the right of way and trackage facilities at an Army supply base, the titles to which land are defective. The Army appropriation act of July 9, 1918 (40 Stat. 845, 860), makes provision, inter alia, for storage and shipping facilities " including rentals and purchase of land." This appropriation gives the necessary authority to purchase the land, and section 1, act of August 1, 1888 (25 Stat. 357), authorizes the acquisition of the property by condemnation proceedings. This condemnation procedure will not be affected by the termination of the legal status of the war. 601.1, Mar. 19, 1919.