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regarded as held at the pleasure of the appointing power.1 XXXIX, 639, August, 1878.

2023. A post trader is not, under the act of 1876, and was not under that of 1867 or 1870, amenable to the jurisdiction of a military court in time of peace. The earlier statutes assimilated him to a campfollower, but, strictly and properly, there can be no such thing as a camp follower in time of peace, and the only military jurisdiction to which a camp follower may become subject is that indicated by the 63d Article of War, viz., one exercisable only "in the field" or on the theatre of war. Nor can the act of 1876, in providing that post traders shall be "subject to the rules and regulations for the government of the army," render them amenable to trial by court martial in time of peace. The subjection referred to in the act is apparently only to the body of administrative directions known as the Army Regulations. (See § 2025, post.) If, however, the Articles of War are intended to be included, the amenability imposed is simply that fixed by the particular article applicable to civilians employed in connection with the army, viz., Art. 63, which attaches this amenability only in time of war and in the field. Thus, though post traders might perhaps become liable to trial by court martial if employed on the theatre of an Indian war, as persons serving with an army in the field in the sense of that article, they cannot be made so liable when not thus situated, and, as a general rule, the only adequate remedy in the event of serious misconduct by a trader in time of peace would be the summary withdrawal of his appointment or license by the Secretary of War. XXXIX, 395, January, 1878. (See note to § 2022, ante.)

2024. Unlike the sutler under the old law, the post trader has no lien upon the pay of soldiers for articles sold to them on credit. Their pay cannot legally be in any part retained by the company commander to reimburse the trader, nor can it be withheld by the paymaster for such purpose against their consent. If a soldier in debt to the trader consents to the paymaster's delivering his pay in whole or in part to the trader at the pay table, the paymaster will be protected in thus paying the same; the soldier being viewed not as thus assigning his pay (which would be in violation of law-Sec. 1291, Rev. Sts.), but as himself receiving the same and turning it over to the trader in and by the same act. XXVII, 282, September, 1868; 559, March, 1869; XXIX, 229, 231, August, 1869; XXXI, 655, September, 1871. So, a

Ex parte Hennen, 13 Peters, 230. It is held by the Attorney General (15 Opins. 278), that the appointment of a post trader is a mere license revocable at the pleasure of the Secretary of War; the concurrence of the post council and post commander not being required for the removal, as they were (by the act of July 24, 1876) for the appointment, of the trader.

paymaster is not authorized, without the express consent of the soldier, to deduct from the pay due him on a "final statement" an amount admitted to be due by him to a post trader. XXIX, 231, August, 1869. An amount due by an officer or soldier to a trader cannot legally be forfeited or stopped for the benefit of the latter by a sentence of court martial. XXVII, 422, December, 1868; XXXI, 376, May, 1871.

2025. The Army Regulations of 1863, applicable to sutlers, were declared by the Secretary of War, in a circular issued from the War Department, dated June 7, 1871, to be not applicable to post traders, and it was added, "no tax or burden in any shape will be imposed upon them." Subsequently, however, to the passage of the act of July 24, 1876, in which it is provided that traders shall be subject to the rules and regulations for the army, this class of persons were, by a circular issued from the Headquarters of the Army, dated July 31, 1878, required to be "assessed and held to pay, at a rate to be determined by the Post Council of Administration, not exceeding ten cents a month for every officer and enlisted soldier serving at the post-the monthly average number of such persons to be determined equitably by the council-for the benefit of the post fund, as required by Gen. Orders No. 24, May, 1878,' from this office." Advised that this imposition of a pecuniary mulet upon a civilian, not subject to the legal liabilities of a sutler, was scarcely within the province of an administrative regulation, and that the same could be enforced with entire legality only by authority of statute. XLIII, 157, 239, January and February, 1880.

2026. It was held by Attorney General Cushing in 18553 that a sutler employed at a military post could not legally be required by the authorities of a State to take out a license to enable him to make sales to officers or soldiers of the army, or to pay a tax on the articles kept by him at the post for making such sales; and this on the ground that "the supply of goods to the officers and soldiers of a post by the post sutler is one of the means authorized by Congress in the exercise of the war power intrusted to it by the Constitution." This opinion, however, further holds (to cite from the headnote): "But sutlers may be compelled to pay license if they enter into general trade within the State." So, in a case of a trader at a military post in a Territory, by whom liquor was kept for sale as a part of his stock, who addressed

This order, in adopting the recommendation of a board to that effect, had already in substance directed the assessment of this tax.

2

A different conclusion is arrived at in an opinion of the Solictor General, in 16 Opins. At. Gen., 658.

37 Opins. At. Gen. 578. And compare 4 id. 462.

to the Secretary of War an inquiry as to whether he could legally be compelled by the Territorial authorities to pay a tax for a license to sell liquor, held, that, inasmuch as the business of post traders extends to the making of sales to civilians, their establishments having originally been authorized "for the accommodation of emigrants, freighters, and other citizens," and their trade having never been subsequently restricted to persons connected with the army,-they could in general legally be required by the local authorities of the State or Territory to take out and pay for licenses in the same manner as other merchants engaged in similar trades; but remarked that the question of the legality of such a tax was rather one for the local courts than for the Secretary of War. XXX, 177, March, 1870; XXXVI, 595, July, 1875; XXXIX, 395, January, 1878; XLI, 306, July, 1878; XLII, 83, December, 1878; XLIII, 155, January, 1880.

2027. The mere fact that a post trader carries on business on a military reservation in a Territory cannot (in the absence of any provision in the organic act relieving him therefrom) affect his liability to be taxed by the civil authorities; nor can such liability be affected by the fact that he carries on business on a military reservation within a State, unless exclusive jurisdiction over the same has been ceded to or reserved by the United States. XLIII, 155, January, 1880.

2028. Held that a post trader duly appointed for a military post might properly be authorized to erect on the post reservation, on a site to be selected by the post commander, such buildings as were necessary or desirable for his business. XXXIII, 453, October, 1872. And held also that, on his appointment or employment being terminated, he would properly be allowed a reasonable time to remove such buildings. XLI, 122, February, 1878.

2029. Held that a post trader, whether appointed by the authority of the act of July 15, 1870 (Sec. 1113, Rev. Sts.), or of that of July 24, 1876, was not-inasmuch as he did not exercise a public function or act for or represent the United States in any particular-a "person holding a commission or appointment under the United States," in the sense of Sec. 1854, Rev. Sts., and was therefore not ineligible to be a member of the legislature or to hold office under the government of a Territory. XLII, 46, November, 1878.

2030. A post trader cannot legally trade with Indians in the Indian country without being specially licensed therefor according to the provisions of Sec. 2129, Rev. Sts. XLII, 400, September, 1879.

This view was concurred in by the Department of Justice. See 16 Opins. 658; also id. 403.

2 See these conclusions concurred in, in a subsequent opinion of the Attorney General, in 14 Opins. 125.

There is nothing in the appointment or office of a post trader from which there can be implied any special authority to trade with Indians, or which can exempt him in any measure from the application of the laws (see Tit. XXVIII, ch. 4, Rev. Sts.) prohibiting or restricting such trade.' So where a post trader had been authorized (under Sec. 2139, Rev. Sts.) to keep liquor at a military post in the Indian country for the purposes of sale, under regulations, to officers and soldiers, held that the authority could not operate as a license to make sales of the same to Indians. XLI, 544, April, 1879.

2031. Held that a post trader could not, against his will, be compelled by the post council or post commander to sell spirituous liquors. Where a trader refuses to keep and sell any particular article or articles which, in the opinion of the council and commander, he should trade in, the only remedy is by an appeal to the Secretary of War, who, if he deems the refusal unreasonable, may cancel the trader's license. XLIII, 166, January, 1880.

2032. A post trader has no lien on a soldier's pay, and a post commander has no authority to enforce a soldier's promise to pay for articles purchased from the trader. 40, 80, March, 1890.

2033. A post trader supplies in a great measure the needs of the post, is assessed for the post fund, receives military protection, and is subject to the Army Regulations. So, held of a trader at a post on an Indian reservation, that he was so far a part of the military establishment as properly to be considered entitled to the benefit of the regulation of the Indian Department authorizing the military at such a post to cut and use without charge timber and hay sufficient for their necessary wants. L, 321, June, 1886.

2034. A post trader became bankrupt, abandoned his business, and transferred, by deed of trust in favor of his creditors, his store and his goods, which were also attached by a sheriff. Held that, while his property should be permitted to be removed, he should be deemed to have forfeited his appointment. The act of July 24, 1876, c. 226, s. 3, authorizing the appointment of post traders, contemplates their actual continuing use of the privileges granted, not only for their own profit but for the benefit and convenience of the post, and the non-user and abandonment of such privileges should properly operate as a voluntary forfeiture. LVI, 437, August, 1888.

2035. The appointment of a post trader is a mere license or permit with the understanding that it must be revocable; and in his business the trader is subject to the existing Army Regulations and police. Thus held that the regulations establishing canteens at military posts were not in conflict with the statute law providing for post traders,

1 See the confirmatory opinion of the Attorney General, in 16 Opins. 403.

and were therefore not unauthorized or illegal. A canteen is a distinct institution from that of the post trader, being created not for trade with the general public, nor to be carried on for a purpose of profit, but as an additional facility for the uses of the troops, and while its sales may affect the business of the trader, its existence is not incompatible with that of his establishment. And held that the Government was under no legal obligations to purchase the buildings or stock of the trader at a post at which a canteen had been initiated. 36, 227, November, 1889.

2036. The act of January 28, 1893, c. 51, provides that thereafter vacancies in the position of post trader shall not be filled, and terminates the power of appointment of such traders. Held, that this statute did not preclude the licensing of a certain applicant to pursue the business of a restaurant keeper on the military reservation of Fort Wood, Bedloe's Island, New York Harbor, his status at such being quite distinct from that of a post trader under the laws authorizing that class. 61, 80, August, 1893.

POWER OF ATTORNEY.

2037. A contractor having a claim against the United States, executed a power of attorney to a party (a lawyer), authorizing him to represent him in prosecuting his claim before the War Department, &c., and to receive for him payment of such amounts as should be allowed him. The power was expressed to be "irrevocable," but did not in terms vest the attorney with any property or interest in the claim, nor did it appear from the relations of the parties or otherwise that any such interest existed. Subsequently, and before the allowance of the claim, the claimant, by a second power, expressly revoked the former power and substituted another person as attorney in the place of the party originally constituted. Held that the first power was not in itself a power coupled with an interest; that the fact that fees were probably to be earned by the attorney did not (in the absence of a special contract making the same a lien upon the amounts authorized to be received under the power) constitute an interest therein; that the word "irrevocable," as employed in the power, was under the circumstances without legal significance or effect; that such power was therefore revocable at the pleasure of the claimant; and that the attorney substituted by the second power would accordingly properly be recognized at the War Department. XXXI, 164, January, 1871.

1

1 See Bristol's case, 11 Opins. At. Gen., 7.

3

2 Pratt v. United States, 3 Ct. Cls., 117; Hunt . Rousmanier's Admrs., 8 Wheaton, 174. Compare 16 Opins. At. Gen., 261.

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