preclude service upon the soldier of papers in a suit for divorce. Card 7413, December, 1899.

749. Held that the arrest of an enlisted man for a contempt in not complying with the legal order of a civil court to pay a certain sum for the maintenance of his wife, was a legal proceeding and not within the prohibition of Sec. 1237, Rev. Sts. Such an arrest is not an arrest "on mesne process" or "in execution for a debt," but an arrest on a judgment on conviction of a criminal offence,' analogous to an imprisonment duly adjudged on conviction of an ordinary crime or misdemeanor. 51, 478, February, 1892.

750. Where an enlisted man who had been served at his post (which was not under the exclusive jurisdiction of the United States) with a subpoena requiring his attendance as a witness before a civil court of the State, neglected to comply,-held that he was guilty of contempt, and, if fined by the court, had no remedy; and this though the service was personal and not made through the commanding officer. 35, 284, September, 1889.

751. A United States officer or agent, in charge of lands of the United States, who is made a defendant in a suit in a United States or a State court in which title to such lands is claimed by an individual, should duly appear and answer in court, and is not authorized to interpose physical force against the service of due process of the court in such a suit, however groundless he may believe it to be. So advised that the military force employed to protect the possession by the United States of a cemetery reservation at El Paso, Texas, to which title was claimed in a suit instituted by a citizen, be withdrawn, or at least ordered to obstruct in no manner the due execution of judicial process on the premises. 52, 182, February, 1892.

752. The owner of land occupied by a canal, constructed as an improvement under a River and Harbor Act, may, by the authority of the ruling of the Supreme Court in the leading case of U. S. . Lee, maintain an action of ejectment or trespass against the official representative of the United States in charge of the improvement. 35, 191, September, 1889.

753. Held that it was not within the constitutional power of Congress to enact that the United States should not be liable for damages caused by the prosecution of a public work, and therefore that the Government could not, through a provision of law to that effect, escape liability for losses incurred by third parties from flowage caused by a harbor improvement. If it would be liable to them in

That contempt of court is "a specific criminal offence," see New Orleans v. Steamship Co., 20 Wallace, 387, 392.

2106 U. S., 196. And see the case of Stanley v. Schwalby, 85 Texas, 348.

the absence of such law, a statute providing that it should not be liable would be unconstitutional as being an attempt to deprive them of a property right by legislation. 56, 478, 485, December, 1892.

754. The legislature of the State of Washington passed an act, approved March 7, 1893, making unlawful and punishable by fine and imprisonment the manufacturing, buying or selling, or giving or furnishing to any one, of cigarettes or cigarette paper, which act has not (July, 1893) been judicially pronounced unconstitutional. Held that, so long as the same remained in force, an officer or soldier offending under it would be legally liable (unless his act were committed on premises under the exclusive jurisdiction of the United States) to arrest and punishment, and that a due consideration for the interests of the service, as well as a due respect for the State sovereignty, should induce military persons at a military post to avoid all cause or occasion of offence in the particulars made penal by this act. 60, 356, July, 1893.

755. It is not within the province of the War Department to afford to officers of the army protection against suits instituted by civilians claiming to be their creditors. 64, 63, February, 1894. Nor can the Government properly act as collector of private indebtedness due from officers or enlisted men of the army. In such cases resort should be had to the civil courts. Where, however, the question becomes one of conduct unbecoming an officer and a gentleman on the part of an officer or of conduct to the prejudice of good order and military discipline on the part of either an officer or enlisted man, action may be taken by the War Department on these questions only. Cards 5482, December, 1898; 5931, March, 1899.

756. Where a soldier, sentenced to imprisonment in the Military Prison, was temporarily detained at a military post awaiting transfer to Leavenworth, and application was made by the civil authorities that he be turned over to them for a trial upon a criminal charge, held that he should be forwarded as soon as practicable to the Military Prison to serve out his sentence, and that the civil authorities should be respect

'The Secretary of War does not undertake the collection of debts due private persons from officers and soldiers, nor to require a preference for any particular creditor in payment in such cases. His aim is to protect the character and standing of the army, and to eliminate from it those guilty of dishonorable conduct. Where charges of such conduct are made they will be promptly investigated, and where statements of non-payment of debts are made against officers, they will be investigated with this end in view. Ruling, Secretary of War, November 18, 1897.

Complaints of non-payment of debts due from officers on the active list and under the control of department commanders are in practice referred for the "necessary action" to the proper department headquarters and the complainants notified of the above ruling of the Secretary of War. The complaints need not be accompanied by or be in the form of formal charges-a statement of the acts and conduct complained of is sufficient as a basis for investigation. Formal charges can be prepared when as a result of the investigation such action is required.

fully informed as to his status and advised that proper facilities would be afforded them for assuming the custody of the prisoner immediately upon the completion of his term of imprisonment. 62, 358, November, 1893.

757. Where a man while serving as a juror enlisted in the army, held, that the War Department had no authority by reason of such enlistment to compel the judge to excuse him from further jury service. Card 4460, June, 1898.

758. In the case of Belknap v. Schild (161 U. S., 10), decided by the U. S. Supreme Court in February, 1896, it was held that where the United States owns a piece of property and is in peaceable possession of it, the Government cannot be enjoined by courts and prevented from using it for the government purposes for which it was intended. So where, after an electric plant had been constructed under contract at Watervliet Arsenal, suit was subsequently brought against the contractor by another electric company for infringement of its patent in the construction of the plant, making the commanding officer of the arsenal a defendant, asking for damages and that the latter be permanently enjoined from using the plant, held upon a request by the contractor for final payment, that in view of the decision of the Supreme Court cited, there was no objection to making the payment. Card 716, April, 1896.

759. The fact that a vessel lying at a wharf in Savannah, Ga., was a United States transport does not take a criminal offence committed thereon out of the jurisdiction of local courts. Whether as a matter of military necessity in time of war, such jurisdiction should be disregarded, it was unnecessary to consider, as no such necessity existed in the particular case. Card 5635, January, 1899.

760. On the question whether quartermasters on board U. S. transports can be summoned before a U. S. commissioner, on claims for pay made by seamen, remarked, that when an officer of the army is served with a summons from a United States court it is his duty to respond to the same; that this is recognized by the army regulations and has become the practice. Recommended therefore that this course be pursued in all cases instituted in the U. S. courts for seaman's wages, but the officer whose duty it becomes to make response to the summons should forthwith notify the proper U. S. district attorney of the institution of the suit and request him to defend the same, and at the same time report action to the War Department, by telegraph, if necessary, to the end that the Attorney General may be requested to give the district attorney any required instructions in the matter. Card 5647, January, 1899.

CLAIM.1

761. Under the law and practice governing the Executive Departments, a head of a department is held not to be in general empowered, without specific statutory authority for the purpose, to reopen (except for the correction of an error in calculation) a claim once duly settled by his predecessor, in the absence of new and material evidence clearly entitling the claimant to an additional allowance. So held, that, in the absence both of new evidence and new statutory authority, the Secretary of War would not be empowered to reopen and reconsider a claim for the repayment of a certain sum (paid as commutation money by a party who claimed to have been illegally drafted), the question of the allowance of which had been duly considered by a former Secretary (under a statute authorizing him to repay the same if deemed to be justly due), and had been unfavorably determined, ten years before. And this, though the correctness of such determination was considered to be doubtful; the proper recourse of the claimant in such case being to Congress. XLII, 357, July, 1879.

762. As a general rule, a claim decided adversely by a former, can not be reopened by a later, Secretary, in the absence of new evidence going to the merits. 42, 413, August, 1890; Cards 687, December, 1894; 1408,

'The reason of the restricted authority (illustrated under this Title) of the Exécutive department in the allowance of claims may be found in the principle of public law, as expressed by Miller, J., in the case of The Floyd Acceptances, 7 Wall., 666, 676,-that “in our structure of government all power is delegated and defined by law: * * we have no officers, from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority.'

U. S. v. Bk. of Metropolis, 15 Peters, 377; Rollins and Presbrey v. U. S., 23 Ct. Cls., 106, and cases cited; Waddell's Case, 25 id., 323; 9 Opins. At. Gen., 32; 12 id., 355; 14 id., 275; 15 id., 192; 16 id., 452; 1 Comp. Dec. 193; 2 id., 264, 401; 4 id., 303; 6 id., 236, 245. In Rollins and Presbrey, v. U. S., supra, it was held, quoting from syllabus, that "any public officer in an Executive Department may correct his own errors and open, reconsider, or reverse any case decided by himself." In delivering the opinion of the court, Chief Justice Richardson said: "It has long been held in the Executive Departments that when a claim or controversy between the United States and individuals therein pending has once been fully considered, and final action and determination had thereon by any executive officer having jurisdiction of the same, it can not be reopened, set aside, and a different result ordered by any successor of such officer, except for fraud, manifest error on the face of the proceedings, such as a mathematical miscalculation or newly discovered evidence, presented within a reasonable time and under such circumstances as would be sufficient cause for granting a new trial in a court of law. This ruling and practice of the Departments has been approved elsewhere and has been sustained by the courts. (9 Opin. At. Gen., 34; 12 id., 172, 358; 14 id., 275, 387, 456; 15 Pet., 401; Lavalette's Case, 1 Ct. Cls., 147; Jackson's Case, 19 id. 504; State of Illinois Case, 20 id., 342; McKee's Case, 12 id., 560; Day's Case, 21 id., 264, and the opinion of the Judiciary Committee of the Senate, reported by Senator and Judge David Davis, quoted in Jackson's Case above referred to.) But it has never been doubted that any public officer in the Departments may correct his own errors, and open, reconsider, and reverse in whole or in part any case decided by himself."

June, 1895. It is only for fraud, manifest error on the face of the proceedings (an erroneous calculation for example), or newly discovered evidence presented within a reasonable time and sufficient to warrant a new trial at law, that a claim or controversy, finally passed upon by a head of a department, may, in the absence of specific authority from Congress, be reopened by a successor. 34, 225, 357, August, 1889; 39, 23, February, 1890; 47, 223, May, 1891; 53, 443, May, 1892; 54, 462, August, 1892; 58, 109, February, 1893. But any public officer may correct his own errors and reopen his own decisions.' 34, 225, August, 1889.

763. A final settlement of a claim under special statutory authority, followed by receipt and acceptance by the claimant of the amount awarded, estops the claimant from questioning that such allowance and payment constituted a full and final satisfaction of his entire claim." So where the Secretary of War, pursuant to act of Congress, had settled the claim of a railroad co. for military transportation by the allowance of a sum which was paid and accepted as a final award, held that without new authority from Congress, he could not reopen the case for the purpose of allowing further credits, except to correct errors in calculation. XLII, 332, June, 1879.

764. Where a claim has once been settled by a preceding Secretary under the provisions of a statute imposing such duty upon him, and subsequently a resolution is adopted by one house of Congress, or a committee thereof makes a report, adverse to the decision of the Secretary, such resolution or report may properly serve as a ground for reopening and again examining and settling the case; and while the views of the committee, or those indicated in the resolution, as to the meaning of the statute are entitled to respectful examination and consideration by the Secretary, they are not binding upon him in the reexamination and settlement of the claim. He must look solely to the statute which gave him jurisdiction and act according to his own best judgment of its meaning. 56, 6, October, 1892.

765. An executive official cannot, of his own authority, appropriate the money of the United States for the purpose of satisfying a claim. So held that the Secretary of War could have no authority to reimburse a claimant for the amount of a tax assessed upon him by the military authorities during the war, and expended in the public service, whether

1 See note to § 761, ante.

25 Opins. At. Gen., 122; 10 id., 259; 12 id., 386; 4 Comp. Dec., 328; 6 id., 858. "Where a claimant has heretofore presented and has been allowed a claim for a part of an entire demand arising out of the same service and in the same right, such partial allowance is a settlement of the whole demand and a subsequent application for the remainder will be disallowed." 4 Comp. Dec., 328.

319 Opins. At. Gen., 388.