act.' Cards 6078, March, 1899; 7344, November, 1899; 7483, January, 1900.

479. By act of Congress approved July 8, 1898, $200,000 was appropriated "to enable the Secretary of War, in his discretion, to cause to be transported to their homes the remains of officers and soldiers who die at military camps or who are killed in action or who die in the field at places outside of the limits of the United States." Held, that the appropriation could be used for providing metallic caskets and other expenses incident to disinterring the remains and preparing them for shipment as well as for transportation proper, as such expenses are necessary and proper to their transportation. But further held, that the act did not apply where the deceased officer or soldier died within the limits of the United States. Card 4808, August, 1898.

480. Where the collectors of customs (army officers) under the military government in Porto Rico were required to transfer a portion of the funds to subsistence officers to be expended for the subsistence of the army, held, that the collection, transfer and disbursement of these funds were under the control of the military commander or military governor and did not form any part of an appropriation made by Congress for the support of the army. Such funds should not therefore be taken up on accounts current of disbursing officers in connection with funds from such appropriations. Card 5464, December, 1898.

481. Sec. 1136, Rev. Sts., provides that "permanent barracks or quarters and buildings and structures of a permanent nature shall not be constructed unless detailed estimates shall have been previously submitted to Congress, and approved by a special appropriation for the same, except when constructed by the troops; and no such structures, the cost of which shall exceed twenty thousand dollars, shall be erected unless by special authority of Congress." In practice this section has been construed to permit of the construction out of the annual appropriation for "barracks and quarters" of permanent buildings, at a cost not to exceed $20,000, although no detailed estimates "have been previously submitted to Congress, and approved by a special appropriation for the same," and also to permit of the construction of more than one permanent building at a particular post for the same purpose, even though their aggregate cost should exceed $20,000.00. In view of the apparently contradictory provisions of 1See 5 Comp. Dec., 257.

2 See A. R., 162, as amended by G. O. 141, A. G. O., 1898, which provides for the cases of soldiers dying within the limits of the United States. See A. R. 180 of 1901.

the section, advised that the construction which it has received in practice be adhered to. Card 6985, September, 1899.

482. Money donated and turned over to the United States to be expended upon a public work would have to be appropriated by Congress to that work before it could be used thereon. Card 1662, August, 1895.

ARMY-EMPLOYMENT OF FOR CIVIL PURPOSES.1

483. Under Art. IV, Sec. 4, of the Constitution, the army may be employed to protect a State from "invasion" or "domestic violence," only by the order of the President, made "on application of the legislature, or of the executive when the legislature cannot be convened.” A military commander, of whatever rank or command, can have no authority, except by the order thus made of the President, to furnish troops to a governor or other functionary of a State, to aid him in making arrests or establishing law and order. XXX, 125, March, 1870; XLI, 206, April, 1878.

484. The proviso of the Constitution-" when the legislature cannot be convened," may be said to mean when it is not in session, or cannot, by the State law, be assembled forthwith or in time to provide for the emergency. When it is in session, or can legally and at once be called together, it will not be lawful for the President to employ the army on the application merely of the governor. XXX, 172, March, 1870.

485. A military force employed according to Art. IV, Sec. 4, of the Constitution, is to remain under the direction and orders of the President as commander-in-chief and his military subordinates: it cannot be placed under the direct orders or exclusive disposition of the governor of the State. XXX, 172, supra; card 8383, May, 1900.

486. Though dicta are to be met with in the authorities looking to such a service as legal, it is clear that the military forces of the United States, cannot, as such, be permitted, in any event, to serve upon the posse comitatus of a sheriff, or other executive official whose function it is to execute the local laws of a State or Territory. XXXVI, 450, May, 1875; XXXIX, 458, 577, March and June, 1878.

487. It is provided in sec. 15 of the act of June 18, 1878, c. 263, that— "From and after the passage of this act it shall not be lawful to employ any part of the army of the United States as a posse comitatus, or otherwise, for the purpose of executing the laws, except in

1 For a full discussion of this subject and citation of authorities, see "The Use of the Army in Aid of the Civil Power," by G. N. Lieber, Judge-Advocate General, U. S. Army, Appendix B, p. 759, post.

such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress."1 In view of this legislation, held as follows:

That whenever a marshal or deputy marshal was prevented from making due service of judicial process, for the arrest of persons or otherwise, by the forcible resistance or opposition of an unlawful combination or assemblage of persons, the President was expressly authorized by Sec. 5298, Rev. Sts., to employ such part of the army as he might deem necessary to secure the due service of such process and execute the laws. XXXIX, 665, September, 1878; XLIII, 80, November, 1879; 324, May, 1880.

That, notwithstanding the legislation of June 18, 1878, the President was authorized to employ the military to arrest and prevent persons engaging in introducing liquor into the Indian country contrary to law, as also to arrest persons being otherwise in the Indian country in violation of law, or to make the arrest therein of Indians charged with the commission of crime; such employment being expressly authorized by Secs. 2150 and 2152, Rev. Sts. XLIII, 112, December, 1879.

3

That the President was authorized by sec. 2150, Rev. Sts., to remove by military force, after a reasonable notice to quit, certain persons commorant upon an Indian reservation contrary to the terms of a treaty between the United States and the tribe occupying the reservation, and

As to what provisions of the Constitution and acts of Congress are excepted, see paragraphs 486-491, A. R. of 1895 (563-568 of 1901).

As U. S. marshals are not expressly authorized by any Act of Congress to summon the military to serve on a posse comitatus (this being authorized only indirectly and impliedly by the provision of the act of Sept. 24, 1789, incorporated in Sec. 787 of the Revised Statutes, 6 Opins. At. Gen., 466, 471; Letter of At. Gen. Evarts to the U.S. Marshal for the No. Dist. of Fla., At. Gen.'s Office, Aug. 20, 1868; General instructions to U. S. Marshals from At. Gen. Taft, published in G. O. 96, Hdqrs. of Army, 1876), the army can not, under the existing law, legally act on the posse comitatus of a marshal or deputy marshal of the United States. See 16 Opins. At. Gen., 162 (Oct. 10, 1878); 17 id., 242, 333; 19 id., 293; 21 id., 72.

While the object of the serving of U. S. troops on the posse of a U. S. Marshal (where legally authorized so to serve) is simply to assist and co-operate with him in the enforcement of the process committed to him for execution, and the commander of the detachment is to consider himself as acting in subordination to the civil officer (see At. Gen. Evarts's letter of instructions cited, supra), the troops employed are to be regarded as under the command of their military superiors, and directly responsible to the latter as on other occasions of the performance of military duty and service. See G. O. 96, A. G. O., 1876; also par. 490, A. R. of 1895 (567 of 1901). 2 See Sec. 5300, Rev. Sts., as to proclamations by the President whenever in his judgment it becomes necessary to use the military forces under Secs. 5297, 5298, and 5299 or other sections of Title LXIX, R. S. As instances of such proclamations see Proclamation of Oct. 7, 1878, 20 Stat., 806; do. of July 8 and 9, 1894, 28 Stat., 1249, 1250. See also the President's (Cleveland) reply to Gov. Altgeld, July 5, 1894published in "The Use of the Army in Aid of the Civil Power” (Lieber), Appendix B, post, page 784.

3 But note that, in view of the provisions of Sec. 2151, Rev. Sts., an officer of the army who detains a person arrested under Sec. 2150 longer than five days before "conveying him to the civil authority," or subjects him when in arrest to unreasonably harsh treatment, renders himself liable to an action in damages for false imprisonment. In re Carr, 3 Sawyer, 316; Waters v. Campbell, 5 id., 17.

who therefore were there "in violation of law" in the sense of that section. XXXVII, 266, January, 1876.

488. In all cases of civil disorders or domestic violence, it is the duty of the army to preserve an attitude of indifference and inaction till ordered to act by the President, by the authority of the Constitution or of Sec. 2150, 5297 or 5298, Rev. Sts., or other public statute. An officer or soldier may indeed interfere to arrest a person in the act of committing a crime, or to prevent a breach of the peace in his presence, but this he does as a citizen and not in his military capacity. (See TWENTY-FOURTH ARTICLE.) Any combined effort by the military, as such, to make arrests or otherwise prevent breaches of the peace or violations of law in civil cases, except by the order of the President, must necessarily be illegal. In a case of civil disturbance in violation of the laws of a State, a military commander cannot volunteer to intervene with his command without incurring a personal responsibility for his acts. In the absence of the requisite orders he may not even march or array his command for the purpose of exerting a moral effect or an effect in terrorem; such a demonstration indeed could only compromise the authority of the United States while insulting the sovereignty of the State. XXX, 125, March, 1870; XXXII, 241, January, 1872; XXXVI, 450, May, 1875; XLI, 206, April, 1878.

489. Held to be at least doubtful whether the authority of the President as Commander-in-chief could legally be extended to the ordering of an officer of the army upon the purely civil duty of instructing Indian youth, unless indeed such instruction was to be given by him as a professor of a college, &c., under Sec. 1225, Rev. Sts. Special duties of an exclusively civil character, where intended to be anything more than merely temporary, have in general been devolved upon military officers only by the authority of express legislation, as, for example, in the cases provided for by Sees. 1225, 2062, 2190, and 4687, Rev. Sts., in which authority has been given by Congress for the employment of officers of the army as professors, &c., of colleges, Indian agents, and assistants in taking the census and on the coast survey. So, advised, that, if thought expedient to devolve upon military officers the function of the instruction of Indian youth, specific authority be obtained from Congress for the purpose. XLI, 545, April, 1879.

2

3

1See 14 Opins. At. Gen., 451; 20 id., 245; and note the proclamation of the President published in G. O. 16, Hdqrs. of Army, 1880, relating to the intrusion of unauthorized persons upon the "Indian Territory" and declaring that the army would be employed to effectuate their removal if necessary.

2 See G. O. 39, Hdqrs. of Army, 1880.

3 Congress was accordingly resorted to for authority in this instance, and by the Act of June 23, 1879, c. 35, s. 7, the Secretary of War was specially empowered "to detail an officer of the army not above the rank of captain for special duty with reference to Indian education." A detail was made accordingly-by S. O. 194, Hdqrs. of Army, Aug. 23, 1879.

490. Held that, in the execution of process of arrest under the act of March 3, 1885 (rendering Indians amenable to the criminal laws of the Territories), the military may, by direction of the President, legally be employed to aid the civil officials in such arrests, such employment being expressly authorized by Sec. 2152, Rev. Sts. LIII, 272, April,

1887.

491. The Industrial Training School for the Chilocco Indians not being established "at a vacant military post or barracks set aside for its use by the Secretary of War," held that the Secretary would not be authorized to detail an officer of the army for duty there "in connection with Indian education," under the act of July 31, 1882, ch. 363. XLIX, 320, September, 1885.

492. There is not in the treaties with the Indians of the Indian Territory, or Secs. 2147, 2150, 2152, Rev. Sts., any express authority vested in the President to use the army in such territory for the apprehension of local robbers or thieves, etc., or for the protection of corporations or individuals from such robbers or other outlaws, except in so far as such offenders may be persons who are in, or are attempting to enter the Indian country "contrary to law," or are Indians charged with crime. (Sec. 2152, Rev. Sts.) In these cases they could be apprehended by the military forces, but only by virtue of and conformably to the statutes cited, and not (unless they be Indians) because they are train robbers or other offenders against the local peace or laws. Cards 542, October, 1894; 5354, November, 1898.

493. Under act of May 17, 1884, a civil government, consisting of an executive and a judicial branch, was established for Alaska, and the general laws of Oregon were made the laws of the territory. On the question whether the army could be used to enforce the law in that territory, held, that if the United States marshal should ask for military assistance to enable him to execute a process which he is unlawfully prevented from executing, it could legally be given him by the President. The act of June 18, 1878, does not preclude such action, because, as held by the United States Supreme Court, the President has by virtue of his Constitutional powers to take care that the laws are faithfully executed and as commander-in-chief of the army the power to use force when necessary in the execution of the laws of the United States. Card 3119, April, 1897.

As to the use of U. S. troops in case of insurrection or riot endangering the public property of the United States, or in case of attempted or threatened interruption of the U. S. mails or other equivalent emergency, see A. R., 489 (566 of 1901). 2See In re Neagle, 135 U. S., 1, and authorities cited.