by him while in such condition, yet the fact of the existence of drunkenness may be proper evidence to determine the question of the species. or grade of crime actually committed, especially where the point to be decided is whether the accused was actuated by a certain specific intent. Thus the fact and measure of the drunkenness of the accused may properly be considered by the court as affecting the question of the existence of an animus furandi in a case of alleged larceny.1 XXIII, 222, August, 1866; XXX, 337, May, 1870.

1234. Drunkenness caused by morphine or other drug (see THIRTY EIGHTH ARTICLE), prescribed by a medical officer of the army or civil physician, may constitute an excuse for a breach of discipline committed by an officer or soldier, provided it quite clearly appears that this was the sole cause of the offence committed, the accused not being chargeable with negligence or fault in the case. XXVIII, 390, February, 1869.

E.

EIGHT-HOUR LAW.

1235. The original statute on this subject-the act of June 25, 1868, incorporated in Sec. 3738, Rev. Sts.-merely provided that eight hours should "constitute a day's work" for laborers, &c., employed by the United States. It has been held by the Supreme Court (U. S. v. Martin, 94 U. S., 400), that this enactment was merely "a direction by the Government to its agents," not "a contract between the Government and its laborers, that eight hours shall constitute a day's work," and that it did not "prevent the Government from making agreements with them by which their labor may be more (or less) than eight hours a day." The act thus failed of its apparent object. To cure this defect the act of August 1, 1892, c. 352, was passed. Held therefore that the term "public works of the United States," used in the first section of the later act, should not be narrowly construed. 55, 155, August, 1892; Card 5429, December, 1898.

1 Rex v. Pitman, 2 C. & P. 423; 1 Bish. Cr. L. § 490. So, in fact the drunkenness has been held admissible in evidence in cases of homicide, upon the question of the existence of malice as distinguishing murder from manslaughter; as also upon the question of deliberate intent to kill in States where the law distinguishes degrees of murder. State v. Johnson, 40 Conn., 136, and 41 id., 588; People v. Rogers, 18 N. York, 9; People v. Hammill, 2 Parker, 223; People r. Robinson, id., 235; State v. McCants, 1 Spears, 384; Kelly . State, 3 Sm. & M., 518; Shannahan . Commonwealth, 8 Bush, 463; Swan v. State, 4 Humph., 136; Pirtle v. State, 9, id., 663; Haile v. State, 11 id., 154; People v. Belencia, 21 Cal., 544; People v. King, 27 id., 509; People r. Williams, 43 id., 344; 3 Greenl. Ev. §§ 6, 148; 1 Bish. Cr. L. §§ 492, 493. 2 And see 19 Opins. At. Gen., 685.

1236. Thus held that the construction of levees on the banks of the Mississippi river, in accordance with the plans of the Mississippi River Commission was a public work of the United States in the sense of the act of August 1, 1892, c. 352, s. 1, although the United States did not own the land. A proprietorship in or jurisdiction over the thing constructed is not necessary. The United States expends annually more than twenty millions for the improvement of rivers and harbors, but the greater part of this is done without acquiring title or jurisdiction to or over the premises. The question under the act is not in whom is the title or jurisdiction but who is doing the work. The construction of these levees is a particular work appropriated for by Congress and to be contracted for by the United States. It is therefore one of the "public works of the United States," and subject to the provisions of this statute. 55, 155, August, 1892.

1237. Held that it was not essential that the requirement of the act of August 1, 1892, be embodied in a contract, the law itself being selfacting. The responsibility rests on contractors to comply with it, irrespective of the terms and conditions of their contracts. The officers who enter into contracts on behalf of the United States are not charged with the duty of enforcing the law with reference to those with whom they contract; the latter being directly responsible in the matter. Any construction by the War Department of the requirements of the act would, if erroneous and not sustained by the courts, be no protection to contractors. 55, 311, September, 1892.

1238. Inquiry having been made of the War Department by certain contractors whether the men employed on dredges, scows and tugs on Lake Erie, under contracts with the United States, were to be regarded as excepted from the application of the act of 1892-held that it was not the duty or province of the War Department to determine such questions, but that the same were for the courts to decide, on trials, under the second section of the act, of persons charged with violations of its provisions. Neither the War or other Department of the Government can lay down rules, or make constructions of the law, for contractors, which would effectually protect them were they brought to trial. 57, 36, December, 1892.

1239. The term "extraordinary emergency," employed in the first section of the act of 1892, cannot properly be construed in advance as referring or applicable to any particular class of cases. The question whether there is or was such emergency should be left to be determined

In a communication to the Secretary of War of August 29, 1892, the Attorney General, whose opinion had been asked with regard to the application in general of the act to the "construction of levees on the Mississippi River," declines to give an official opinion with a view to the guidance of persons who may propose to enter into contract relations with the United States," in the absence of a special case requiring the action of the Secretary. See 20 Opins., 459.

by the facts of each special instance as it arises. A case in which it appeared that a compliance with the statute was not possible, might well be held to be one of "extraordinary emergency." 55, 311, September, 1892; 60, 263, July, 1893; Card 1365, March, 1895.

1240. No provision is contained in the act of 1892 for the suspension of its operation, and the Secretary of War has no power to suspend it as to certain work or places of work on the theory that an "emergency" exists as to the same. Nor can he lay down in advance any general rule as to what would be such an emergency as would relieve an officer or contractor from liability or give him an immunity from prosecution. The question of the existence of an emergency is to be determined, in the first instance, by the person carrying on, or in charge of, the work; in the second, by the court, if the case comes before one. It may be said generally that when the emergency can be foreseen it is not extraordinary; that increased expense and inconvenience cannot constitute an emergency when they can be foreseen and guarded against. 55, 153, 324, 386, 469, August and September, 1892; 56,330, November 1892; Cards 1365, March, 1895; 9137, October, 1900. 1241. At the Leavenworth Military Prison there are employed certain civilians as "foremen of mechanics," who are paid, under the Sundry Civil Appropriation Act, a stated salary of $1,200 per annum, and whose duty it is to direct the labor of the prisoners. The regulations framed for the government of the Military Prison, pursuant to Sec. 1345, Rev. Sts., require more than eight hours' labor per diem of the prisoners, and consequently more from these foremen. Held that the latter were not entitled to the benefits of the act of August 1, 1892, c. 352, as "laborers or mechanics," the statute not being applicable to them. 65, 220, June, 1894.

1242. The act of August 1, 1892, provides that it shall be unlawful for any officer of the United States Government or any contractor or subcontractor whose duty it shall be to employ, direct or control the services of laborers or mechanics (on public works) to require or permit any such laborer or mechanic to work more than eight hours in any one calendar day except in case of extraordinary emergency. But where a sub-contractor purchased window blinds, sashes, etc., for a public building at a factory in which the employes were working more than eight hours a day, but over whom he had no control, it was held that the statute did not apply. Card 7323, November, 1899.

1243. An executive officer cannot, in view of Sec. 3738, Rev. Sts., legally direct that laborers, workmen and mechanics employed by and on behalf of the Government shall be given time without loss of pay to vote on election day, if such indulgence would reduce the number of working hours below eight. Card 2692, October, 1896.

a

1244. Held that a "hostler" at an arsenal is neither a "laborer" nor "mechanic" within the meaning of the eight hour act of 1892. Card 3673, November, 1897. Similarly held with respect to lock employes on river locks. Card 4814, August, 1898.

1245. It is not the duty of the Secretary of War to institute proceedings for violations of the act of 1892. Parties who think the law is being violated by contractors should submit their complaints to the proper United States attorney. Card 7323, November, 1899.

EMINENT DOMAIN.

1246. Where money appropriated for the purchase of land for the erection of monuments, &c., was not sufficient to accomplish the entire purpose set out in the statute, held that, in obedience to the spirit of Sec. 3733, Rev. Sts., no step should be taken toward acquiring or condemning lands, until further appropriations were made. 37, 203, December, 1889.

1247. Held that there was no general act of Congress making State courts an agency of the United States for the purpose of condemning lands; and that proceedings for this purpose should be had in a U. S. court under an act of Congress, or in a State court when such court has been by such act made an agency for the purpose. 38, 271, February, 1890.

ENGINEER CORPS OR OFFICER.

1248. There is no legal objection to the detailing of a sergeant of one of the companies of the Battalion of Engineers to act as first sergeant of the company; but of course such acting first sergeant can receive no more or other pay than that of sergeant. 62, 126, October, 1893.

1249. Under sec. 20 of the act of March 1, 1893, "to create the California Debris Commission," &c., the Secretary of War is clearly authorized to assign an engineer officer to duty under the orders of the Commission. 61, 133, August, 1893.

1250. As to the disposition, by the Corps of Engineers, of charts of the northwestern lakes-held that, under Sec. 226, Rev. Sts., as amended by the appropriation acts for the naval service of May 4, , 1878, and Feb. 14, 1879, all charts hereafter furnished to mariners are to be paid for at the cost price of the paper and printing as paid by the Government. 38, 210, 477, January and February, 1890.

1See 20 Opins. At. Gen., 459, 463, and A. R. 728 (812 of 1901).

ENLISTMENT.

1251. While the taking of the oath prescribed by the 2d Article of War is not essential to the validity of an enlistment, it is an almost invariable part of a regular formal enlistment, and, in the absence of any provision in our law prescribing what shall constitute an enlistment, the oath as taken and subscribed by the party is the regular and, in some cases, the only, legal written evidence that the personal act of enlisting has been completed by him.' XXX, 313, May, 1870; XLII, 203, March, 1879; Card 4631, July, 1898.

1252. Due enlistment and the receipt of pay are placed upon the same footing by the 47th Article of War. Held therefore that receipt of pay from the United States, as a soldier, estops the party from denying the status which he has thus openly assumed, when sought to be made amenable as a deserter. VII, 132, February, 1865. A party who has voluntarily rendered service as an enlisted man and as such has been armed, clothed, and fed by the Government is estopped from denying the validity of his contract of enlistment upon the ground of informality therein, and is entitled to pay for the period of such service. XIX, 397, January, 1866.

1253. The allegation in a specification to the charge of desertion, that the accused was "duly enlisted," held established by evidence of his identification as a member of his company, or of facts that show an acquiescence on his part in the status of a so.dier, such as the receipt of pay, doing of military duty, etc. XII, 361, February, 1865.

1254. A soldier deserted in December, 1863, was subsequently dishonorably discharged and confined for the desertion by sentence of a court-martial, but, pending the confinement, was pardoned by the President "on condition of returning and faithfully serving out his time in his regiment." He complied with this condition and was honorably discharged. Held that his returning to his regiment and entering upon duty as a soldier pursuant to his agreement with the President, constituted an enlistment for the period agreed upon. 65, 224, June, 1894.

Our law not defining enlistment nor designating what proceeding or proceedings shall or may constitute an enlisting, it may be said in general that any act or acts which indicate an undertaking, on the part of a person legally competent to do so, to render military service to the United States for the term required by the existing law, and an acceptance of such service on the part of the Government, may ordinarily be regarded as legal evidence of a contract of enlistment between the parties, and as equivalent to a formal written agreement where no such agreement has been had.

On a charge of desertion or other offence against military discipline, it will be sufficient to prove that the accused received the pay or did the duties of a soldier without other proof of his enlistment on oath." 3 Greenleaf Evidence, § 483. And see Lebanon v. Heath, 47 N. Hamp., 359; Ex parte Anderson, 16 Iowa, 599.