is now authorized by the act of August 13, 1894 (28 Stat., 279). But before such corporation will be accepted by the War Department as a surety on a bond, it must file in the War Department the papers required by paragraphs 574, 576, and 577, A. R. (653, 655, and 656 of 1901). Cards 284, 2997, and 3280, April, 1895, to July, 1899.

600. The provision of the Legislative, Executive and Judicial appropriation act of March 2, 1895, requiring official bonds to be examined at least once every two years for the purpose of ascertaining the sufficiency of the sureties thereon, is sufficiently complied with as to bonds on which a corporation is surety, if the corporation files periodically in the War Department the financial statement required by A. R., 574 (653 of 1901). Card 2516, August, 1896.

601. The act of August 13, 1894, does not require a compliance with any laws or regulations which a State may impose to qualify a foreign surety company to do business within the State with the officers or citizens thereof. Under the act referred to a bond of the surety company to the United States would be equally valid whether or not it had complied with such laws or regulations of the State. Card 3604, October, 1897.

602. Where upon a change of office the superintendent of a surety company wrote to the War Department to the effect that the company was willing that the official bond pertaining to the old office and upon which the company was surety should extend to the new office, held that the letter of the superintendent was not sufficient to extend the bond as proposed; that to extend the same to the new office would require an instrument under the corporate seal referring to the bond in such a way as to identify it, executed by officers of the company authorized to bind it in the matter of executing bonds, but remarked that where, as in the particular case, there had been a change of office. the practice was to require a new bond.' Card 4224, April, 1899.

BOUNTY.

603. Bounty is not pay, nor is it properly an "allowance" in the sense in which that term is ordinarily used as referring to the regular pecuniary emoluments of soldiers other than pay." X, 661, December, 1864; XV, 356, June, 1865.

1 But see note 1, page 156, ante.

"The term "allowances," however, when employed in a general sense, has been regarded as including bounty. Thus see 13 Opins. At. Gen., 188, 197, where it is held that the general forfeiture of pay and allowances due at the date of the offence, imposed upon deserters by par. 1358, Army Regs., embraced instalments of bounty due at the time of the desertion; also United States v. Landers, 2 Otto, 77, where the court goes so far as to hold that forfeiture of "pay and allowances," imposed by sentence, includes bounty.

604. The two years' service required by the act of 1861 need not have been continuous service. XI, 500, March, 1865. Nor, if two years' service was rendered, does it affect the right of the soldier to bounty that during a material part of the period he was detailed upon and performed a quasi civil duty as a clerk. XXXI, 507, July, 1871. 605. In the absence of any express statutory provision forfeiting a soldier's right to bounty where he has been guilty of desertion, held that the mere fact that a desertion had been committed by a soldier at some period of his term of service could not affect his right to bounty, provided that, having served the requisite period, he was finally honorably discharged. Thus, in repeated cases of deserters, who, after being restored to duty without trial, or upon full execution or remission of sentence-for whether the deserter be brought to trial and punished or not is immaterial-had performed faithful service, and been finally honorably discharged; held that no forfeiture of bounty had been incurred.' XII, 139, December, 1864; XV, 356, June, 1865; XVIII, 333, November, 1865; XIX, 269, December, 1865; XXI, 614, August, 1866; XXII, 653, March, 1867; XXIX, 127, July, 1869; XXXVI, 478, May, 1875; XXXIX, 413, February, 1878; XLIII, 218, February, 1880.

606. Where a veteran volunteer was honorably discharged, not by reason of the expiration of his full term or because his services were no longer required by the Government, but because of his promotion to the grade of a commissioned officer, held that he was entitled only to such proportion of the bounty and premium specified in G. O. 191, War Dept., 1863, as had accrued at the date of his discharge. XII, 548, August, 1865.

607. A soldier in the war of the rebellion, who enlisted and served for a period of "two years or during the war if sooner ended," became entitled, at the end of such term, under the act of July 22, 1861, to a bounty of $100. If he enlisted after April 19, 1861, for a period of not less than three years and served through this term, or until the close of the war, he was entitled to an additional bounty of $100, under the act of July 28, 1866. In either case, if discharged before the expiration of the required time, on account of wounds or injuries received in the service in the line of duty, he became entitled to the bounty. 64, 422, April, 1894.

BREVET RANK.

608. Brevet rank can, properly, neither be conferred, nor take effect, except as an incident to full rank of a lower grade. XXI, 608, August,

1866.

1See U. S. v. Kelly, 15 Wallace, 34.

609. In view of the repeal (by the act of March 1, 1869) of the old 61st Article of war (which did away also with the portion of par. 10 of the Army Regulations which was derived therefrom), an officer, except where specially assigned to duty according to his brevet rank by the President, is no longer entitled to precedence on courts martial or otherwise by reason of his brevet rank. XXXV, 447, June, 1874.

610. Held that a confirmation by the Senate, on March 3, 1869, of a brevet appointment previously made, was of no effect and conferred. no right to a brevet commission; Congress having, two days before, by the act of March 1, 1869, c. 52, enacted that "from and after the passage of this act commissions by brevet shall only be conferred in time of war." XXXIX, 209, October, 1877.

611. Under Sec. 1211, Rev. Sts., an officer may legally be assigned to duty according to his brevet rank for a special command or duty, and in such case the assignment will not be effective generally, but only for the purposes of such command or duty and during its continuance. Thus held that an officer assigned to duty according to his brevet rank "while in command of " a certain department, could legally exercise the authority and privileges of such rank only when holding such command, and for the purposes of the same.1 XLII, 21, October, 1878.

612. When an officer has been duly assigned to duty or command according to a certain brevet rank, that rank becomes his actual military rank for the period of the assignment. He is empowered to exercise the authority which belongs to such rank under the circumstances, to wear the uniform, and to be addressed by the title, of such rank, &c. Held, however, that a colonel, assigned to command according to a brevet rank of general, was not entitled to the aids-de-camp of a general (major or brigadier), but, as indicated in par. 35, A. R. (33 of 1895; 40 of 1901), could be "allowed" the same only "with the special sanction of the War Department"-in other words, by the authority of the Secretary of War. XLII, 21, October, 1878.

BRIDGE.

613. The power of Congress to legislate for the prevention and removal of physical obstructions to navigation in public rivers in general, having been allowed to lie dormant for nearly a century, began to be exercised in the act of July 5, 1884, c. 229, s. 8, followed by the

But see now act of March 3, 1883 (1 Sup. R. S., 400), which provides that officers of the army shall only be assigned to duty or command according to their brevet rank when actually engaged in hostilities.

2 As to the constitutionality of the exercise of this power by Congress, see Miller v. Mayor of New York, 109 U. S., 385, 393, 394.

more explicit legislation on the subject of the act of August 11, 1888, c. 860, secs. 9 and 10; such power having been previously left to be exercised by the States.' 42, 85, July, 1890. The power thus assumed by Congress is more fully exercised in the act of September 19, 1890, c. 907, secs. 4, 5 and 7, and sec. 3 of the act of July 13, 1892, c. 158.2 A distinctive feature of this legislation is that it in effect precludes States from authorizing the construction of bridges over navigable waters which are not wholly within their territorial limits, and provides that it shall not be lawful to commence the construction of a bridge over navigable water of the United States under any act of a State legislature "until the location and plan of such bridge" have "been submitted to and approved by the Secretary of War." Held, under this provision that the authority of a State for the erection of a bridge over navigable water within the State should be shown as a condition precedent to the approval by the Secretary of War.3 55, 61, 140, August, 1892; 62, 94, October, 1893. The fact that the title to the soil under the water is vested in a municipality of the State does not affect the power of the State to grant such authority, nor dispense with the necessity of its doing so. The title to the soil is distinct from the right of conservation. Though this title be vested in a town by the State, there remains in the latter by reason of its sovereignty, "a jus publicum of passage and repassage, with consequent power of conservation," under which power it may concede the authority required by the statute. 62, 94, supra.

614. A river is a navigable water of the United States when it forms by itself or by its connection with other waters a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. If a river is not itself a highway for commerce with other States or foreign countries, or does not form such highway by its connection with other waters, and is only navigable between different places within the State, then it is not a navigable water of the United States but only a navigable water of the State." So held, that Devil's Lake being wholly within the State of North Dakota and having no visible outlet was not a navigable water of the United States and therefore not subject to the laws of Congress relating to such waters. A bridge may be built across this waterway under the laws of the State without reference to the Federal govern

1 See Willamette Iron Bridge Co. v. Hatch, and authorities cited, 125 U. S., 1. The existing legislation on the subject will be found in section 9, et seq., of the River and Harbor Act of March 3, 1899 (30 Stats. 1151).

See L. S. and M. S. R. Co. v. Ohio, 165 U. S., 365, and 20 Opins. At. Gen., 488. +6 Opins. At. Gen., 172, 178.

The Montello, 11 Wall., 411. See, also, authorities cited in note 1, page 493, post.

ment unless the bridge is to be located on Federal property. Card 7750, March, 1900.

615. According to the views and practice of the War Department there is no general legislation of Congress authorizing the construction of bridges over streams or waterways, the navigable portions of which are not wholly within the limits of a single State, except as to bridges over the Ohio River.' Such authority has hitherto been given, with the exception stated, by special acts, which have uniformly contained provisions requiring that the plans of the bridges be submitted to the Secretary of War for approval before construction is commenced. But in the case of a stream or waterway whose navigable extent is wholly within the limits of a single State, Congress has provided by Sec. 7 of the River and Harbor Act of Sept. 19, 1890, as amended by Sec. 3 of the corresponding act of July 13, 1892, that a bridge may be built thereover under authority of an act of the State legislature, provided the plans and location thereof are approved by the Secretary of War. Cards 307, September, 1894; 1375, May, 1895; 1943, January, 1896; 2448, 2470, July, 1896; 2596, September, 1896; 2677, October, 1896; 3047, March, 1897; 3428, August, 1897. In the latter case the plans of the bridge should be accompanied by proper evidence that the State has authorized its construction. Card 1389, May, 1895.

616. Sec. 7 of the act of 1890, in leaving the matter of the authorization and construction of bridges over navigable waters wholly within States entirely to the jurisdiction of the State, except in so far as to require the approval by the Secretary of War of the location and plan of the bridge, indicates that Congress did not desire to exercise any further control over the subject. So, upon an application for the approval by the Secretary of War of the plans of a bridge over the Harlem River which is wholly within the State of New York, held

See act of Congress approved Dec. 17, 1872 (17 Stats., 398), as amended by act approved Feb. 14, 1883 (22 Stats., 414).

See 20 Opins. At. Gen., 488, and Lake Shore and Michigan Southern Ry. Co. v. Ohio, 165 U.S., 365. The intention of Congress is more clearly expressed in section 9 of the River and Harbor Act, approved March 3, 1899 (30 Stats., 1151), which, after making it unlawful to construct any "bridge, dam, dike, or causeway" over any navigable water of the United States until the consent of Congress thereto shall have been obtained, &c., specifically provides: "That such structures may be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of War before construction is commenced."

Under date of Sept. 25, 1899, the Secretary of War held that this section does not authorize the Secretary of War or the Chief of Engineers to approve the plans for a bridge or other structure which would be an obstruction to navigation liable to be proceeded against under the other sections of the act or of the statutes theretofore existing; that the intent of the section appears to be to commit to the States the determination of the question whether or not there should be a bridge at any particular place over navigable waters wholly within the State, and to commit to the Secretary of War the protection of navigation against obstructions by such a bridge.