INSPECTOR GENERAL'S DEPARTMENT

3. While the statute creating the duties of the General Staff Corps (act of Feb. 14, 1903, 32 Stat., 831) confers on the General Staff Corps the duty of investigating and reporting upon "all questions affecting the efficiency of the Army," this authority does not limit the scope of the duties of the Inspector General's Department as defined by paragraph 878, Army Regulations (AR 20-5), and the various statutes upon which said regulation is based. Consequently a division of the Inspector General's Office may be created, charged with the duty of investigating and recommending efficient methods of office administration in the Army at large. However, so far as the proposed recommendation relates to the several bureaus of the War Department, this would be an extension of the functions of the Inspector General's Department beyond Army administration and would be a departure from previous practice on the subject. 321.3, June 13, 1918.

INSULAR AFFAIRS, BUREAU OF

4. Opinion is asked whether the commercial messages of the Philippine National Bank may be put into the Government code in the Bureau of Insular Affairs, and what rights, if any, would be established by such practice for other banking institutions. The use of Government codes is entirely within the control of the Government and beyond the control of the cable company. The next question for determination is whether such practice would be within the province of the Bureau of Insular Affairs, whose functions are not specifically defined by acts of Congress nor by the orders and circulars of the War Department. The act of July 1, 1902 (32 Stat. 691, 712), providing for civil government in the Philippine Islands and establishing, eo nomine, the Bureau of Insular Affairs, provides that "The business assigned to said bureau shall embrace all matters pertaining to civil government in the island possession of the United States subject to the jurisdiction of the War Department " (sec. 87). G. O. 79, W. D., 1902, followed the terms of that statute. The qualified sense in which this bank is a government institution does not make its commercial or personal messages or those growing out of its character as a business institution "matters pertaining to civil government in the Philippine Islands subject to the War Department within the meaning of the statute quoted. This bank was incorporated under the act of February 4, 1910, of the Philippine Legislature (11 Pub. Laws, Phil. Ids. act No. 2612, pp. 239-251), and under its provisions a majority of the stock was purchased by the government. The legal effect of such embarkation by the Philippine government in a business venture removes such enterprise from the privileges and exemptions of sovereignty. (Bank of the United States v. Planters' Bank of Georgia, 22 U. S. 904, 906; South Carolina v. United States, 199 U, S. 437, 463; Brock v. Poor, 111 N. E. 229, 234.) Even if all the affairs of the Philippine National Bank could be regarded as governmental affairs, it does not follow that they are matters pertaining to civil government subject to the War Department of the United States and therefore embraced within the business assigned to the Bureau of Insular Affairs by the act of July 1, 1902, supra (24 Ops. Atty. Gen. 534). No legal ground has been discovered which brings within the functions prescribed for the Bureau of Insular Affairs the matter of coding and decoding messages for the Philippine National Bank or any other bank. 311.22, Nov. 5,

JUDGE ADVOCATE GENERAL'S DEPARTMENT

5. A request from a staff judge advocate for a ruling by The Judge Advocate General involving an interpretation of provisions of the Manual for CourtsMartial should not be considered as a "routine matter," within the meaning of paragraph 26, AR 340-15, which permits direct correspondence in such cases. 300.3, Apr. 12, 1930.

MEDICAL DEPARTMENT

6. In the absence either of a statute authorizing or requiring officers of the Medical Department of the Army to furnish medical attendance and treatment to officers of the Public Health Service and their families, or of a statute or regulation authorizing or requiring officers of the Public Health Service to furnish such attendance and treatment, the Medical Department of the Army may not lawfully furnish same. Acts July 5, 1884 (23 Stat. 112); July 27, 1892 (27 Stat. 277); A. R. 1473 and 1459 (AR 40-505 and 40-590). June 11, 1923.

705,

Secs.

7-8. COMMISSIONED.

9-10. ENLISTED.

11. WARRANT OFFICERS.

STRENGTH

COMMISSIONED

Secs.

7. IN GENERAL.

8. NONPROMOTION-LIST BRANCHES.

IN GENERAL

7. Reserve officers assigned to active duty under the provisions of section 37a, National Defense Act, and National Guard officers assigned to active duty with the Regular Army under the provisions of the last sentence of section 81, National Defense Act, do not constitute a part of the maximum number or officers on active duty as provided by section 4 of said act. 210.101, June 23, 1920.

Upon approval of the Air Corps Act of July 2, 1926 (44 Stat. 783), the maximum authorized strength of the Regular Army at once increased from 12,000 to 12,080, with a similar annual increase thereafter until a total of 12,403 is reached, no executive action being necessary. Actual commissioned strength, however, within the maximum authorized by law, is necessarily subject in some degree to executive discretion. The President unquestionably has the legal right to make appointments up to the authorized maximum, though a deficiency be created, or he may, as he has by letter of March 26, 1927, limit said actual strength for the fiscal year 1928 to 12,000. 320.21, May 10, 1927.

NONPROMOTION-LIST BRANCHES

8. The provision in the act of June 30, 1922 (42 Stat. 723), authorizing the President to increase or diminish the number of officers assigned to the various branches by not more than 30 per cent, is applicable only to the promotion-list branches, not to the Medical Department or chaplains, the aggregate number

of officers in each of the nonpromotion-list branches being specifically fixed by said act of June 30, 1922 (42 Stat. 721-722). 320.2, Jan. 14, 1928.

Secs.

9. IN GENERAL.

10. MEDICAL DEPARTMENT.

ENLISTED

IN GENERAL

9. Act of June 4, 1920, does not fix a ratio between enlisted strength of a particular branch, and total enlisted strength, that must be observed in face of a reduction in such total by act June 30, 1921. The President may still fix the strength of a branch for which the act of June 4, 1920, prescribes a definite maximum, at such maximum, and may under section 4c, National Defense Act of 1920, increase or diminish such number 15 per cent, but this rule is not applicable to branches whose strength is stated as a percentage of total Army. 320.2, Nov. 25, 1921.

On the question of the legality of the War Department's policy in maintaining the enlisted strength of the Army, exclusive of Philippine Scouts, at an average of 118,750 men when this results in a deficiency for pay of enlisted men, in view of the following provision in the War Department Appropriation Act for the fiscal year 1926 (43 Stat. 896):

"PAY OF ENLISTED MEN: For pay of enlisted men of line and staff, not including the Philippine Scouts, $51,090,846: Provided, That the total authorized number of enlisted men, not including the Philippine Scouts, shall be one hundred and twentyfive thousand

"All the money hereinbefore appropriated for pay of the Army shall be disbursed and accounted for as pay of the Army, and for that purpose shall constitute one fund: Provided, That under this provision no amount shall be used for the employment of any additional persons over the number for which the specific appropriations herein provide ";

Held, That in view of the express authorization for an enlisted strength of 125,000 men, and the fact that to extend the last proviso above quoted to enlisted men would require its extension to commissioned officers, retired officers, and retired enlisted men, a result which could not have been intended by Congress, the proviso in question must be regarded as applying to those items of appropriations under "Pay of the Army" which are for the employment of persons as distinguished from items providing for the payment of commissioned or enlisted personnel. 320.22, June 17, 1926.

MEDICAL DEPARTMENT

10. Opinion was requested as to the legal enlisted strength of the Medical Department under section 10, National Defense Act (41 Stat. 766), reading in pertinent part as follows:

The Medical Department shall consist of one Surgeon General with the rank of major general, the Medical Corps, the Dental Corps, the Veterinary Corps, the Medical Administrative Corps, a number of enlisted men which until June 30, 1921, shall not exceed 5 per centum of the authorized enlisted strength and thereafter 5 per centum of the actual strength, commissioned and enlisted, of the Regular Army, the Army Nurse Corps as now constituted by law, and such contract surgeons as are now authorized by law. (Italics supplied.)

The legal questions involved are:

(a) Does the specified "5 per centum apply to all of the component parts of the Regular Army, active and retired, as mentioned in section 2 of the National Defense Act, whether or not they are on active duty?

(b) Does the specified "5 per centum" apply only to members of the commissioned and enlisted personnel of the Regular Army, or is it applicable also to those persons in the Regular Army who are neither commissioned nor enlisted, such as, for instance, members of the Army Nurse Corps, contract surgeons, cadets of the United States Military Academy, and warrant officers?

44

(c) Must the specified “5 per centum" be limited to the minimum 'actual strength" of the Regular Army at any given time, or may it be extended to include "the average actual strength" for a given fiscal year?

Held:

(a) That the specified "5 per centum" is applicable to all the members of the component parts of the Regular Army, mentioned in section 2 of the National Defense Act, who are in an active duty status, as distinguished from an inactive retired status.

(b) That the specified "5 per centum" is applicable to all persons actually in the active service of the Regular Army by virtue of a regular appointment or enlistment therein, provided he, or she, is a member of one of the component parts of the Regular Army mentioned in section 2 of the National Defense Act.

(c) That the specified "5 per centum" may legally be extended to include "the average actual strength of the Regular Army for a given fiscal year. 330.22, June 22, 1929.

WARRANT OFFICERS

11. In the reduction of the number of warrant officers to 600, as required by act of June 30, 1922 (42 Stat. 723), those appointed under that act from discharged officers, and under acts of April 27, 1926 (44 Stat. 328), and March 4, 1927 (44 Stat. 1416), from field clerks and quartermaster clerks, should be excluded from consideration, but band leaders are not to be so excluded except that this shall not interfere with the filling of vacancies of band leaders. 211, Mar. 30, 1927.

UNAUTHORIZED USE OF MILITARY DESIGNATIONS

12. Where a private signal corps, to be maintained independently of State or national aid, asked whether there was any reason why it should not assume the title of "U. S. Volunteers." Held, That there was no Federal law which would prevent the use of that or any other name by such an organization; but advised that the good taste and good faith involved in the assumption of the name of an organization which clearly is not national in its character nor in any sense connected with the United States would seem questionable. C. 29058, May 1, 1912.

There is no legal objection to private stores advertising as "Army and Navy" where the goods handled were actually purchased from surplus Government stocks. The only remedy for misrepresentation lies with the Federal Trade Commission where interstate commerce is involved; otherwise with local trade bodies. 400.158, Feb. 18, 1926.

The War Department does not approve of use of pictures of a person in uniform on a liniment bottle label, the liniment to be offered for sale to the

public, but the legality of such use is a question for the courts. 074, Feb. 17, 1927.

An honor military school having a Reserve Officers' Training Corps unit advertised itself as a military academy of the highest grade under the supervision of the U. S. War Department." While only the military training at the school is under the supervision of the War Department, it is doubtful if the representation quoted is intentionally fraudulent, though it may be misleading, and might well be modified. Aetion for fraud or misuse of mails is suggested as possible remedy, should school authorities decline to modify misleading literature. 400.158, Jan. 31, 1928.

There is no Federal law inhibiting former members of the 322d Field Artillery from organizing a corporation for profit under the name "The 322d Field Artilery Association, Incorporated." 400.158, April 29, 1929.

USE OF ARMY

Secs.

13. IN EMERGENCIES.

14. IN EXECUTION OF CIVIL LAWS.

15. FOR GUARDING PRISONERS.

16. FOR PROTECTION OF FOREIGN STATES.

17. FOR PROTECTION OF GOVERNMENT PROPERTY.

18. FOR PROTECTION OF MAILS.

19. FOR RECOVERY OF GOVERNMENT PROPERTY. 20. FOR SUPPRESSION OF DOMESTIC VIOLENCE. 21. FOR NATIONAL GUARD DUTY.

IN EMERGENCIES

13. Angel Island is an island of 640 acres located in San Francisco Bay, about seven miles north of San Francisco, owned exclusively by the United States and used as a site for the military post of Fort McDowell, the immigration station above mentioned, a Federal quarantine station and other establishments and property of the United States Government. On Sunday, March 18, 1928, about 150 Chinese then detained by the immigration authorities in said station, became infuriated, assaulted a matron, refused to obey their guards, and assumed an attitude so threatening and mutinous that the guards, fearing a general outbreak, appealed to the commanding officer at Fort McDowell for assistance. The latter very promptly dispatched to the station a lieutenant with a small detachment of troops, whose mere appearance there seems to have been sufficient to restore order. At the request of the guards, and as a precaution against immediate recurrence of the trouble, the lieutenant took temporary custody of five of the inmates pointed out by the guards as ringleaders, and conducted them to Fort McDowell, where they were held overnight, and then returned to the custody of the immigration authorities. On the question as to whether or not the use of the troops in this situation was lawful, and whether or not the commanding officer at Fort McDowell may lawfully be instructed to furnish troops for similar use in like future emergencies.

Held, That the situation above described constituted an emergency precisely of the kind contemplated by paragraph 56, AR 500-50, June 6, 1923, and the actions of the commanding officer, Fort McDowell, and of the troops under his orders, as above indicated, are entirely appropriate and lawful. All of the elements necessary to justify immediate action under said regulation were