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to reimburse losses to post exchange, company, hospital, bakery, etc., funds; all these funds being used to carry on public agencies or instrumentalities of the Government.' Card 3171, October, 1897.

2385. A recruit absented himself from a detachment of recruits at a place in Ohio, while en route from the recruiting depot to his proper station, Fort Yates, N. D., and was taken to Fort Niagara and tried upon a charge of desertion but convicted of absence-without-leave only. Held that the only stoppages to which he could legally be subjected were the amount of the pay and allowances accruing during his absence, under par. 132, A. R. (see 144 of 1901), and the amount of the expenses incurred in transporting him "to his proper station," under par. 124, A. R., as amended by G. O. 14 of 1890 (see 137 of 1901). But held further that the words "to his proper station," in the last part of the amended regulation, were to be construed as equivalent to the expression, in the first part-"to the station of his company or to the place of his trial"; that it would not be legal to stop against him the expenses of the transportation to both places; that if the place of trial was-as here-different from the station of the company, it would be proper to stop the expenses of transportation to the former and not to the latter; and that, this being done, the stoppage of the expense of transporting him to the station of his company, after the trial, would not be authorized. 64, 301, April, 1894.

2386. A civilian, then at Pittsfield, Mass., was duly employed, by the engineer officer in charge of a River Improvement, as an assistant at a compensation of $150 per month, and ordered to report at Montgomery, Alabama. In subsequently settling with him for his services, the officer allowed and paid him, in addition to his salary, the amount of his expenses of travel between Massachusetts and Alabama. Held that such allowance was unauthorized as being in excess of the contract, which stipulated only for the payment of the salary named, and was therefore legally stopped by the accounting officers against the engineer officer's pay. 43, 182, October, 1890.

2387. Sec. 1766, Rev. Sts., which prescribes that "no money shall be paid to any person for his compensation who is in arrears to the United States, until he has accounted for and paid into the Treasury all sums for which he may be liable", has not in practice been so strictly construed as to preclude the making of stoppages against the pay of officers and enlisted men in such monthly amounts as to leave a margin for necessary living expenses. Thus where the stoppage against an enlisted man was $100, advised that it be collected at the rate of ten dollars per month. Card 7415, December, 1899.

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SUBSISTENCE STORES.

2388. Where subsistence stores were sold by a post commissary of subsistence to a mess of three officers of the post, and charged to the mess as such, held that such mess was not in the nature of a commercial partnership in which each member was bound for the joint indebtedness, but was simply an association, for purposes of convenience and economy, of three individuals, each of whom was bound to the United States only for his proportion-one third of the account. And held that a member who had paid his proportion to one of the other members who acted as caterer but who had deceased without paying over this amount to the commissary, remained liable for such proportion to the United States. XLI, 155, March, 1878.

2389. Held that the "ten per cent," directed by the Army Appropriation Act of June 23, 1879,' to be added to accounts for subsistence stores "sold to officers and men" of the army, could not legally be added to the cost of the subsistence stores furnished for the prisoners at the Leavenworth Military Prison; such prisoners not being embraced in the class referred to in said act, but being provided for by a separate and distinct appropriation for the support of the prison, contained in the act of March 3, 1879, c. 182, and which is unaccompanied by any such requirement. XLI, 651, August, 1879.

2390. Held that the ten per cent. required by the act of June 23, 1879, to be added to the cost of subsistence stores sold to officers and soldiers, "to cover wastage, transportation, and other incidental charges," was to be added in every instance of such sale, whether or not there had been any wastage, &c., in the case of the particular article or articles sold; the "charges" intended to be covered being understood to be charges incurred in connection with the stores sold or kept for sale as a whole. XLII, 100, December, 1879.

2391. Held that the provision of the act of June 23, 1879, in regard to the adding of ten per cent. to the cost of subsistence stores sold to officers and soldiers, was to be viewed as qualifying the provisions of Secs. 1144 and 1145, Rev. Sts., and thus as applying only to stores sold by the United States, through the Subsistence Department. So held that it did not apply to sales made directly to officers and soldiers by contractors under contracts expressly stipulating for such sales to be made by them. XLIII, 100, December, 1879.

2392. On the question whether the Secretary of War has legal authority to issue a regulation authorizing the sale of quartermaster's and subsistence supplies to civilians at remote posts who are employed

This provision, also in Army Appropriation Act of May 4, 1880, was repealed by the act July 5, 1884 (23 Stats., 108).

for services in connection with the army, such for instance as civilian tailor, shoemaker, laundryman, meat contractor, etc., it was held, that there is no express statutory authorization for issuing such a regulation, but a precedent for such action is found in General Orders No. 106, Adjutant General's Office, 1898, which amends paragraph 1284 of the Army Regulations to read: "Civilians at rates of pay of sixty dollars or more per month, employed with the army at remote places or in the field where food can not otherwise be procured, may be allowed to purchase from the Subsistence Department, in limited quantities for their own use, for cash at cost price, such articles of the ration or of stores kept for sales to officers and enlisted men as can be spared from the supplies on hand." The Secretary of War has the same legal authority to promulgate the regulation proposed that he had to make the one quoted; but advised that the "meat contractor" be not included among those to whom sales are to be authorized. Card 6505, June, 1899.

SUMMARY COURT.

2393. The act of October 1, 1890, c. 1259, substituted the summary court for the regimental or garrison court, in time of peace, much as the act of July 17, 1862, substituted, for the latter court, the field officer's court, in time of war. 43, 422, November, 1890.

2394. Where a post commander sits as a summary court, no approval of the sentence is required by law, but he should sign the sentence and date his signature. 64, 36, February, 1894. A certification by the post adjutant of the approval by the post commander of the sentence of a summary court is irregular, and should not be permitted. Card 32, July, 1894. The commanding officer's approval should be over his own signature, and as forfeitures adjudged are operative only upon pay accruing subsequent to the approval unless otherwise directed in the sentence, the date of approval should be entered on the record. Cards 854, January, 1895; 2971, December, 1896.

2395. The provision of the act that accused soldiers shall be brought before the summary court for trial "within twenty-four hours from the time of their arrest" is not a statute of limitations nor jurisdictional in its character, but directory only-directory upon the officers whose duty it is to bring offenders before the court. The proceedings will thus be legally valid though the accused does not appear for trial within the period specified. So held, in a case of an accused soldier

This regulation before amendment, provided, among other things, that the sale to a civilian employed with the army, etc., should be “at invoice or contract prices with 10 per cent. added. It has been further amended by G. O. 118 of 1899. See A. R.

1430 of 1901.

'See A. R. 932, 933 of 1895 (1031, 1032 of 1901); also Court-Mar. Manual (1901), p. 74, par. 16.

arrested on Saturday, that the court did not, by not sitting on Sunday, lose jurisdiction; and therefore that it is not necessary that a summary court should ever sit on a Sunday.' 51, 151, December, 1891.

2396. The provision in the act in regard to the trial being had within twenty-four hours of the arrest being directory only, a trial held after that time is entirely valid. Thus, where a soldier, by reason of drunkenness or otherwise, is not in a condition to be tried within that time, his trial may be postponed till he is in proper condition. 64, 108, March, 1894.

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2397. Held that the provision of the 94th Article of War, relating to the hours of cession of courts martial, was not applicable to summary courts. 54, 304, July, 1894.

2398. The procedure of the summary court should be similar to that of the older courts martial. The charges and specifications should be read to the accused, and he be required to plead guilty or not guilty, and the witnesses should be sworn. But the testimony is not set forth in the record. 44, 13, 17, November, 1890.

2399. The act of 1890, in providing that the trial officer "shall have power to administer oaths," has reference to the oaths of witnesses. The officer himself is not sworn. But the witnesses must be sworn; and, in a case in which it appeared that they were not in fact sworn, held that the proceedings and sentence were invalidated, and that a forfeiture imposed was illegally charged against the accused, who should be credited with the amount of the same on the next musterand-pay roll. But the record need not state in terms that the witnesses were sworn; it will be presumed that the law has been complied with unless the contrary appears. 48,7, June, 1891; 53,301, May, 1892.

2400. A summary court is not empowered to issue process of attachment to compel the attendance of a civilian witness. 51, 468, June,

1892.

2401. For a summary court to impose a forfeiture of ten dollars, when the soldier is receiving only nine dollars a month because of the retention of four dollars under the act of June 16, 1890, is not in excess of authority." The true monthly pay is thirteen dollars. The retention does not affect the amount of the pay but simply the time of payment. 44, 288, December, 1890.

2402. A summary court is not empowered to impose a sentence of dishonorable discharge. Such punishment is not in terms authorized,

'See Circ. No. 2, A. G. O., 1891; do. of 1892. The present summary court act, approved June 18, 1898, directs that the accused “shall be brought to trial within twenty-four hours of the time of the arrest, or as soon thereafter as practicable."

2 As to the procedure and form of record of summary courts, see Court-Mar. Manual (1901), pp. 73-75 and 148

3 See now 83d Article of War, as amended March 2, 1901, set out in note 1, page 72,

ante.

by Art. 83, to be adjudged by regimental or garrison courts, and it is restricted to general courts martial by the 4th Article of War. 46, 402, April, 1891; Card 350, September, 1894.

2403. By the act of July 27, 1892, c. 272, s. 5, "commanding officers authorized to approve the sentences of summary courts" are empowered to "remit or mitigate the same." Held that where a soldier, who had been convicted by a summary court, had passed into another command, so that the officer who approved his sentence was no longer his commanding officer, such officer could not legally exercise the power of remission or mitigation of the sentence.1 63, 337, January, 1894.

2404. General courts martial have exclusive jurisdiction to try offences punishable capitally. A trial therefore by a summary court for a violation of the 21st Article of War or for desertion in time of War, would be void, and the sentence adjudged should be set aside as such. Cards 6186, April, 1899; 7392, December, 1899.

2405. The Summary Court Act of June 18, 1898, provides, inter alia: "That the commanding officer of each garrison, fort, or other place, regiment or corps, detached battalion, or company, or other detachment in the army, shall have power to appoint for such place or command, or in his discretion for each battalion thereof, a summary court to consist of one officer to be designated by him," for the trial of enlisted men, and "that when but one commissioned officer is present with a command, he shall hear and finally determine such cases". This was intended to provide for the trial of enlisted men under all conditions of service. Held, therefore, that the surgeon in command of the Army and Navy General Hospital, Hot Springs, Ark., being an officer of the army, has authority under this act to appoint a summary court for the trial of enlisted men of the army under his command. Card 856, February, 1900. And held, that if the U. S. general hospital at Fort Myer, Va., and at Fort McPherson, Ga., were not included in the command of the respective post commanders, the surgeons commanding the hospitals would be competent under the act cited to appoint summary courts. Cards 4826, August, 1898; 5713, February, 1899. Held, also, where the division field hospital and the division field ambulance company were independent commands and responsible direct to the division surgeon and division commander, that their respective commanders were competent to appoint summary courts for the same.* Card 4966, October, 1898. And the surgeon in command of a U. S.

1 The summary court referred to in this and preceding paragraphs is the summary court established by the act of Aug. 1, 1890. An examination of the present Summary Court Act of June 18, 1898, will show however that the opinions are applicable to the latter act.

2 See Circ. 49, A. G. O., 1898.

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