a person, military or rivil, held in military custody by the authority of the United States. XIX, 92, December, 1865; XXI, 92, 133, December, 1865. And held, particularly, in regard to soldiers arrested or confined by the military authorities under a charge of or sentence for desertion, that their discharge, upon any ground, by writ of habeas corpus was wholly beyond the jurisdiction of any State tribunal. II, 34, 190, 484, February to June, 1863; III, 104, June, 1863; V, 398, December, 1863. So held, in regard to persons arrested by a provost marshal as deserters for not responding to a draft in time of war. III, 457, 578, August and September, 1863. And further, held that no State court could have jurisdiction, on a proceeding for the discharge by writ of habeas corpus of an enlisted soldier, to pass upon the question of the legality of the soldier's enlistment, or to discharge him from his contract of enlistment, on the ground of its invalidity by reason of minority, non-consent of parent, or other cause; the authority to discharge from the restraint and obligation of the ordinary military status being considered to be governed by the same principle as that to discharge from an arrest or confinement under a military charge or sentence, or from the custody of a U. S. marshal under civil process of the United States.' XXI, 157, January, 1866; XXIX, 140, July, 1869; XXXIII, 271, August, 1872; 32, 313, May, 1889; Card 394, September, 1894.

1439. And held that a State court was not authorized to discharge on habeas corpus a civilian held by the authority of the United States as a convict under sentence of a military commission. XXVIII, 50, August, 1868.

Opposed to this view was the opinion of Atty. Gen. Stanbery in Gormley's case (October, 1867), 12 Opins. At. Gen. 258. But in December, 1871, the ruling of the Judge-Advocate General in this class of cases was sustained by the United States Supreme Court in Tarble's Case, 13 Wallace, 397, in which the judgment of a State court, which had ordered the discharge, on habeas corpus, of an enlisted soldier from "the custody of a recruiting officer," i. e. from the obligation of his contract of enlistment, on the ground that he had enlisted when under eighteen years of age and without his father's consent, was reversed as an unconstitutional assumption of authority. In applying to the case the principle laid down in Ableman v. Booth, 21 Howard, 506, the Court, by FIELD, J., observes: "State judges and State courts, authorized by laws of their States to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appears upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government. If such fact appear upon the application the writ should be refused. If it do not appear the judge or court issuing the writ has a right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limits of the State; and it is the duty of the marshal, or other officer having custody of the prisoner, to give, by a proper return, information in this respect. His return should be sufficient, in its detail of facts, to show distinctly that the imprisonment is under the authority, or claim and color of the authority, of the United States, and to exclude the suspicion of imposition or oppression on his part. And the process or orders under which the prisoner is held, should be produced with the return and submitted to inspection, in order that the court or judge issuing the

1440. Where a writ of habeas corpus, issued by a State court or judge for the relief of a person held in arrest, confinement, or under enlistment, by the military authorities, is served upon a military officer, he is not required to comply with the direction of the writ to produce before the court the body of the person so held. It is sufficient for him merely to make return showing clearly that such person is held by the authority of the United States as a deserter, or under a contract of enlistment, or otherwise, as the case may be.' The State court, upon being thus apprised, will properly dismiss the writ. III, 104, June, 1863; XXI, 157, January, 1866.

1441. Where, prior to the decision of the U. S. Supreme Court in Tarble's case, a State court, having issued a writ of habeas corpus in a case of a military prisoner, attempted to enforce a process of contempt against the officer in charge, who, though duly making a return showing that the party was detained by the authority of the United States, refused to produce his body in court,-held that such attempt should be resisted by the officer, who should be supported in his resistance by such military force as might be necessary. III, 502, August, 1863; XIX, 305, December, 1865; XXI, 92, December, 1865. So, where a State court, after such a return, still assumed to proceed in the case and to order the discharge of the party, here a soldier in arrest as a deserter,-held that the execution of such order should be resisted and prevented by military force. III, 104, June, 1863; XXI, 157, January, 1866.

1442. Where, prior to the decision in Tarble's Case, an officer undergoing, in a State penitentiary, a sentence duly imposed by a court-martial, was discharged from his imprisonment by a State court and was at large, advised that he be forthwith rearrested and re-confined. XXX, 56, December, 1869. So, in a case of a soldier discharged from his enlistment, on the ground of minority, by a State court, advised that he be arrested by the military authorities and held to service. XXX, 190, March, 1870.

1443. But in a case of a soldier or other person held in military cus

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writ may see that the prisoner is held by the officer in good faith, under the authority, or claim and color of the authority, of the United States, and not under the mere pretence of having such authority. The State judge or State court should proceed no further when it appears, from the application of the party, or the return made, that the prisoner is held by an officer of the United States under what, in truth, purports to be the authority of the United States; that is, an authority, the validity of which is to be determined by the Constitution and laws of the United States. If a party thus held be illegally imprisoned, it is for the courts or judicial officers of the United States, and those courts or officers alone, to grant him release.” This decision put an end to a controversy of many years standing, and swept away a mass of counter rulings by the State courts, the majority of which had sustained the authority of the State judiciary in such cases.

1 See citation from Tarble's Case in last note.

tody, in which a writ of habeas corpus is issued by the United States judiciary—a co-ordinate branch of the same sovereignty as that by which the party is restrained-it is the duty of the officer to whom the writ is addressed to make thereto a full return of the facts and to bring into court the body of such party, submitting to the court the whole question of authority and discharge, and abiding by its decision and order in the case.1 XIX, 377, and XXI, 157, January, 1866.

HOLIDAY-PAY FOR.

1444. By the joint resolution of Congress, of January 6, 1885, it was provided that the "per diem employees" of the United States should be allowed certain days as holidays, naming January 1st, February 22d, July 4th and December 25th, together with "such days as may be designated by the President as days for national thanksgiving," and should receive the same pay for those days as for other days. Held that while such employees might be allowed by the Secretary of War to enjoy the Saturday half holiday established at New Orleans by a statute of Louisiana, they could not, if taking the holiday, legally be paid for such time. 62, 31, October, 1893. 62, 31, October, 1893. Where such employees have been present for duty either before or after a holiday, but not present both before and after, being absent a day or more either prior or subsequent thereto, they are entitled to be paid for such holiday, unless their employment was terminated the day before or began the day following it; in which cases they would not be employees of the United States at the time of the holiday. Card 5879, February, 1899. 1445. Per diem employees suspended and not at work during a period which includes a holiday are not entitled to pay for the holiday. Card 1668, August, 1895. Nor can employees who work on a holiday be given double pay for such service in the absence of a statute expressly authorizing the same. Card 4335, June, 1898.

1446. On January 19, 1893, the President proclaimed that on the day (January 20th) of the funeral of ex-President Hayes, all public business in the departments should be suspended. This not being one of the days included as public holidays by the joint resolution of January 6, 1885, held that the per diem employees at the Watervliet Arsenal were not entitled to be paid for that day. 57, 424, February, 1893.

HOSPITAL CORPS.

1447. The act of March 1, 1887, c. 311, "to organize the hospital corps of the army," &c., provides for "acting hospital stewards," as a

1See paragraphs 140, 969, 970, 971, Army Regulations of 1895, the last two paragraphs as amended by G. O. 127, A. G .O., 1900 (pars. 151, 1073-1075 cf 1901).

separate grade in the corps, but does not prescribe any mode of filling that grade other than by declaring that "privates" of the corps may be detailed as such "acting" stewards. Held, therefore, that when such a private was so detailed, he ceased to be a private of the corps and became at once the acting hospital steward constituted by the act; and, if discharged while so detailed, should be discharged as an "acting hospital steward," receiving travel pay as such. 60, 157, June, 1893. 1448. Held that the provision of the Army Appropriation Act of Feb. 27, 1893, prohibiting the re-enlistment of certain "privates," applied to the "privates" of the hospital corps but did not apply to the "acting hospital stewards," who, under the act organizing this corps, of March 1, 1887, c. 311, constituted a distinct class and grade from the "privates."1 58, 222, March, 1893.

1449. Held that a person enlisted in the hospital corps, or transferred to it from another part of the army under the authority of the act of March 1, 1887, c. 311, sec. 5, could not be transferred out of it or back again to the organization from which he was transferred originally, without a breach of contract. The authority to transfer to this corps is expressly granted by the statute, but there is no statutory authority for depriving transferred members, by undoing their transfers, of the positions given them according to the express law. 55, 96, August, 1892.

1450. Held that an enlisted man of the volunteer branch of the army may, under the act of March 1, 1887, creating the hospital corps, be transferred thereto as a private; and that the authority to make such transfers could legally be given to corps commanders. Card 4122, May, 1898.

2

1451. General Orders 58, Adjutant General's Office, 1898, authorizes corps commanders to transfer enlisted men of the volunteer branch of the army to the hospital corps, but does not authorize such commanders to retransfer them to the volunteer organizations. Card 6714, July, 1899.

1452. Held that neither the act organizing the hospital corps of March 1, 1887, nor par. 1578 A. R. (1889), relating to the assignment of privates of the corps as nurses, &c., was to be construed as restricting the use of nurses to attendance upon patients within the hospital, but that nurses might legally be furnished from such privates to attend officers at their quarters. 43, 115, September, 1890.

This and preceding paragraph are quoted and concurred in by the Comptroller of the Treasury in an opinion dated April 16, 1900, wherein he decided that acting hospital stewards are entitled to travel pay and extra pay (act of March 3, 1899) as such and not as privates, and if retired as acting hospital stewards are entitled to 75 per cent of the pay and allowances of that grade. 6 Comp. Dec., 807.

See G. O. 58 and 82, A. G. O., 1898.

3 See Circulars 45 and 50, A. G. O., 1898.

1453. Where a hospital is not supplied with enough privates of the hospital corps to do the necessary police duty, which, under sec. 5 of the act organizing the corps of March 1, 1887, they may properly be required to perform, held that convalescents at the hospital may, in the discretion of the surgeon in charge, and by his prescription and direction, be employed to assist in such duty. 44, 125, December, 1890.

HOT SPRINGS HOSPITAL.

1454. Under the present regulations for the government of the Army and Navy General Hospital at Hot Springs, Arkansas, civil employees of the Government are not eligible to admission. 58, 452, March, 1893.

1455. Under the regulations for the government of the General Hospital at Hot Springs, published in G. O. 60 of 1892, "officers of the revenue marine" are made eligible to admission. Held that this description did not include medical officers of the "Marine Hospital Service," who are not officers of the "Revenue Marine" but belong to a distinct establishment. The former are appointed under the provisions of Title LIX, ch. 1, Rev. Sts., and of the act of January 4, 1889, c. 19, while the Revenue Marine is constituted under Title XXXIV, ch. 3, Rev. Sts. Both classes are under the direction of the Secretary of the Treasury, but their duties and functions are entirely different, and there is no ground for regarding the former as included in or attached to the latter.1 59, 162, April, 1893.

1456. The United States not being vested, by reservation or cession, with exclusive jurisdiction over the site of the General Hospital at Hot Springs, though owning the land, held that the courts and judicial officers of Arkansas had substantially the same jurisdiction and authority to issue and execute process to and upon the military and naval persons stationed or commorant at the hospital, as in cases of civilians there resident or commorant. 56, 284, November, 1892.

1457. Held that under the regulations for the government of the General Hospital at Hot Springs, Arkansas (G. O. 60, A. G. O., 1892, as amended by G. O. 40, A. G. O., 1893), discharged enlisted men of the Navy are not entitled during the three months within which they may reenlist under the act of February 8, 1889, to admission to the hospital. Card 2069, February, 1896.

I By an amendment of the Regulations of the Hospital, promulgated (since the above opinion) in G. O. 40 of 1893, officers of the Marine Hospital Service are now made eligible to admission.