condition precedent to the exercise of such right, wherever its exercise is liable to affect commerce and navigation; and when granted the permission can in no sense be construed as vesting in the grantee any power to avoid or contravene the State and local laws or to invade the privileges and immunities held by other parties thereunder. Card 8360, June, 1900.

1786. The Erie and Atlantic Basins, in New York Harbor, are private property, but they are also navigable waters of the United States; and the owners of the soil under the water hold the title subject to the rights of the public to navigate such waters, and are therefore not empowered to fill in the basins and deprive the public of their use. Moreover they are waters over which the United States has expressly assumed jurisdiction in prohibiting, by the act of June 29, 1888, the dumping of deposits "in the tidal waters of the harbor of New York, or its adjacent or tributary waters, within the limits which shall be prescribed by the supervisor of the harbor." Held that the subsequent establishment, under the act of August 11, 1888, s. 12, of harbor lines in that harbor outside these basins did not oust this jurisdiction, but that the act of June 29, 1888, was still in force. 50, 366, November, 1891.

1787. Held that the prohibition, by sec. 6, act of September 19, 1890, of the dumping of ballast could not legally be enforced in New York Harbor beyond the three mile limit.' 51, 154, December, 1891.

1788. Held that the River and Harbor Act of August 11, 1888, s. 12, did not make the approval of the Secretary of War essential to the establishment by a State of harbor lines on its internal navigable waters, and therefore that, until the United States exercises control in the manner provided for by sec. 12 of said act, the State of Wisconsin was empowered, through the municipality of Duluth, to change and regulate the harbor lines of Duluth harbor without such approval. 33, 308, July, 1889.

1789. The River and Harbor Act of June 14, 1880, s. 4, makes it the duty of the Secretary of War, on being satisfied that a sunken vessel obstructs navigation, to give thirty days' notice, to all persons interested in the vessel or cargo, of his purpose to cause the same to be removed unless removed by the persons interested as soon thereafter as practicable, before himself proceeding to take measures for its removal under the act. If the removal be effected by the Secretary of War, the act requires that the vessel and cargo shall be sold at auction and the proceeds deposited in the Treasury. Under this legis

1Compare the concurring opinion of the Attorney General, in 20 Opins., 293. "See County of Mobile . Kimball, 102, U. S. 691.

lation especially in view of the fact that the act authorizes the taking possession of the property of private individuals and the disposing of it without compensation to the owners-held that the notice should be strictly given to all interested, the owners of the cargo as well as the vessel, unless indeed such notice were waived, in which case the waiver should be definite and express and joined in by all the interested parties. 35, 466, October, 1889.

1790. The engineer officers of the army, in opening a channel in a navigable river, for the improvement of which appropriation had been made by Congress, were assisted and co-operated with by a local transportation company which owned the land adjoining the channel which it was using for its own boats. Upon the completion of the improvement this company proceeded to levy a toll on other vessels passing through the channel. Held that such toll was an obstruction to navigation and could not legally be enforced; the fact that the company owned the land giving it no exclusive right to the free use of navigable waters of the United States. L, 538, July, 1886.

1791. Where a railroad company, which, as riparian proprietor, owned the land upon which was located a revetment of the bank of a navigable stream (constructed by the United States in the improvement of the navigation of the same), was authorized to rebuild the revetment, subject to the condition that the work should be so done and maintained as to fully subserve its purpose as a safe and secure revetment and protection to the channel of the stream-held that the company, as riparian owner, was legally entitled to use the revetment so long as such use did not impair its serviceableness or involve such an exclusive possession as would be in violation of the provisions of sec. 9 of the act of September 19, 1890; and that a failure on its part to perform the condition would not, per se, divest it of such right of use, or empower the Secretary of War to enforce such performance by revoking the authority to rebuild the revetment. 64, 11, February, 1894.

1792. Held that under sec. 3 of the River and Harbor Appropriation Act of July 13, 1892, the Secretary of War was empowered to authorize the laying of a water main across the bed of the channel of any navigable water of the United States. 65, 352, June, 1894.

1793. Held that it was doubtful whether "floatable" streams, i. e. streams capable only of being used for floating saw-logs, timber, &c., not being navigable in a general sense, were included in the term "navigable waters of the United States," as employed in statutes providing that dams shall not be constructed in such waters without the permission of the Secretary of War. But held that it was clearly

competent for Congress, under the commerce clause of the Constitution, to exercise control over such streams as highways of interstate commerce. 63, 375, February, 1894.

營 * *

1794. The act of August 17, 1894 (sec. 6), provides that "it shall not be lawful to place, discharge, or deposit, by any process or in any manner, ballast, refuse, dirt, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state, in the waters of any harbor or river of the United States for the improvement of which money has been appropriated by Congress, elsewhere than within the limits defined and permitted by the Secretary of War". And any and every such act is made a misdemeanor punishable by fine and imprisonment, etc. This statute prohibits the discharging or depositing of matter "in the waters of any harbor or river for the improvement of which money has been appropriated by Congress." As the statute is a penal one, and therefore subject to the rule of strict construction, this prohibition should not be construed to extend to the tributaries of such waters, notwithstanding the pollution of the tributaries would result in injury to said waters. Card 581, October, 1894.

1795. No executive department of the Government can give private parties the exclusive privilege of harvesting ice from any part of a ravigable river of the United States. Card 1817, November, 1895.

NEW TRIAL.

1796. New or second trials have been of the rarest occurrence in our military service. They have only been had, and are only authorized, where the sentence adjudged upon the first trial has been disapproved by the reviewing authority and the accused has asked for a second trial. It was held at an early period by Attorney General Wirt' that the prohibitory provision of the Articles of War (now contained in Art. 102) that "no person shall be tried a second time for the same offence," did not apply to a case in which the accused himself requested a new trial, the objection to such trial being deemed to be subject to be waired by the consent and action of the party tried. The privilege of applying for and being allowed a re-trial-for it is not a right, since the trial may be granted or denied at the discretion of the proper superior-has naturally been but seldom exercised; parties convicted and sentenced being in general satisfied that the proceedings in their cases should be terminated by the disapproval, on whatever grounds the same may be based. The principal instances of new trials in our practice are that of Captain Hall (in whose case Mr. Wirt's opinion

11 Opins. At. Gen. 233. And see 6 id. 205.

was given), and those of which the proceedings are published in G. O. 18, War Dept., 1861, and G. O. 8, 9, and 26, First Mil. Dist., 1869. After a sentence has been duly approved and has taken effect, the granting of a new trial is of course beyond the power of a military commander or the President. XXXVII, 492, April, 1876; XXXIX, 233, October, 1877; XLIII, 423, XLIV, 171, October, 1880.

NOLLE PROSEQUI.

1797. A prosecution before a court martial proceeds in the name and by the authority of the Government. (See Art. 90.) The United States, therefore, through the Secretary of War, or the military commander who has convened the court, may require or authorize the judge advocate to enter a nolle prosequi in a case on trial (or, less technically, withdraw or discontinue the prosecution), either as to all the charges where there are several, or as to any particular charge or specification. But the judge advocate cannot exercise this authority at his own discretion, nor can the court direct it to be exercised. IX, 488, 533, August, 1864; LIV, 458, November, 1887.

NON-COMMISSIONED OFFICER.

1798. Where a non-commissioned officer (sergeant) was transferred to another company as a private, but shortly thereafter was again appointed a non-commissioned officer; held that, having actually served for a time as a private, his service as such could not legally be converted into that of a non-commissioned officer by dating his warrant back to the date of his transfer. Card 4427, June, 1898.

0.

OATH-AUTHORITY TO ADMINISTER.1

1799. An officer of the army has no authority, virtute officii, to administer an oath. He is indeed specially empowered to exercise this function, under certain circumstances, by statute-as by the 2d, 84th and

*

*

'By sec. 4 of the act of July 27, 1892 (27 Stats., 278), "judge-advocates of departments and of courts-martial, and the trial officer of summary courts, are * authorized to administer oaths for the purposes of the administration of military justice, and for other purposes of military administration."

Under sec. 19 of the act of May 28, 1896 (29 Stats., 184), United States commissioners and all clerks of United States courts are authorized to administer oaths generally (3 Comp. Dec., 65).

85th Articles of War; and further by sec. 183, Rev. Sts., in a case where, being an officer of the War Department, he is detailed to investigate frauds, &c. XXXIV, 648, December, 1873.

1800. Par. 771, A. R., authorizing certain military officers to administer certain oaths, held without legal effect. Such authority can be given only by statute. 56, 88, October, 1892. The regulation is an encroachment upon the legislative province. 60, 471, July, 1893; 65, 187, June, 1894. The affidavits referred to in this paragraph (which are such only as relate to matters of property accountability-XLIX, 244, 333, 355, July and September, 1885) should be taken, if practicable, before one of the military officers authorized to administer oaths by the act of July 27, 1892, c. 272, s. 4. If no such officer is available, a competent civil official should be resorted to. 60, 471, supra.

1801. The act of July 27, 1892, c. 272, s. 4, in authorizing certain military officers to administer certain oaths, does not, of course, affect the power, of administering such oaths, of other officials who may have been authorized to administer them before the passage of the Such officials may still administer the same, and, when doing so, should be paid their fees as notaries, commissioners, &c., as before. But, to avoid expense, it is desirable to resort to the officers empowered by the statute, where practicable. 56, 408, November, 1892.

1802. Affidavits required to be taken in the execution of contracts pertaining to military administration may be taken before the officers named in the act of July 27, 1892. This act having been passed subsequent to the enactment of Section 3745, Revised Statutes, modifies the latter to the extent stated. Cards 3671, November, 1897; 3768, January, 1898.

1803. The term "judge-advocates of departments" used in the act of July 27, 1892, was intended as descriptive of the officers performing the duties of those positions, and includes the officers detailed under the act of July 5, 1884, to perform such duties as well as the officers of the Judge-Advocate General's Department who are performing them, and also officers temporarily assigned to such duty by a department commander. In fact there is no officer of the army whose title, aside from his assignment to such duties, is "judge-advocate of department." The judge-advocate of a department and the other officers named in the act of July 27, 1892, as well, should, in taking

1Sec. 183, Rev. Sts., was amended March 2, 1901, to read as follows: "Any officer or clerk of any of the departments lawfully detailed to investigate frauds on, or attempts to defraud, the Government, or any irregularity or misconduct of any officer or agent of the United States, and any officer of the Army detailed to conduct an investigation, and the recorder, and, if there be none, the presiding officer of any military board appointed for such purpose, shall have authority to administer an oath to any witness attending to testify or depose in the course of such investigation." 2See G. O. 20, of June 22, 1894, abrogating the old par. 771, A. R., and substituting a new one in conformity with the view here expressed, 683 of 1895 (765 of 1901).