mountains, it appearing that the road would facilitate military operations in that region-held, that a special act of Congress appropriating funds for this work would be necessary, the appropriations of the Quartermaster's Department not being available for the purpose. Card 26, July, 1894.

470. Property can not be leased by the Government unless there has been an appropriation to pay the rental; and where an existing appropriation has been "extended" by Congress such extension would authorize a lease only during the period of the extension. Card 195, August, 1894.

471. The act of Congress of March 3, 1897, making appropriations for fortifications, &c., contained an appropriation of $75,000.00 “for construction of a riprap wall for protection of United States lands at Sandy Hook, New Jersey." Held, that under Sec. 355, Rev. Sts., the expenditure of this appropriation could not legally be made before jurisdiction over said lands had been ceded by the State of New Jersey to the United States. Card 3066, April, 1897.

472. Sec. 3678, R. S., prohibits the use of money for any purpose other than that for which it was appropriated. Card 3721, November, 1897. Thus held that the expense of fencing a tract of land, the property of the United States, intended for fortification purposes, would not be a legal charge against the appropriation for river and harbor improvements. Card 726, January, 1895. Also where a specified amount was appropriated for "shelling or otherwise improving to completion," a specified road, between two places named, held, that the appropriation could not legally be applied to the construction of an entirely different road from that referred to and contemplated by the act. Card 3635, November, 1897.

473. In the Army Appropriation Act of February 27, 1893, continued by joint resolution of June 29, 1894, under the head, army transportation, money was expressly appropriated for constructing roads and wharves. Held, therefore, that the expense of repairing a crib dock and approach thereto belonging to the Government on the Fort Wayne Military Reservation, and used for military purposes, would be a proper charge against the said appropriation for army transportation. Card 70, July, 1894.

474. The Army Appropriation Act, approved August 6, 1894, fixed the number of clerks and messengers to be employed in a number of given offices, appropriated for their payment and provided that they were to be employed and apportioned to the several headquarters and stations by the Secretary of War. The number was 125 clerks and 45 messengers.

Two clerks in excess of the authorized number were

employed for a short time. Held, that the act appropriating salaries for the 125 clerks amounted to a provision of law that no more than that number should be employed on the work specified in the act, and hence prohibited the employment or payment of the two extra clerks. Card 295. September, 1894.

475. Where the United States owns and has exclusive jurisdiction overa military reservation, subject to a right of way through the same of a public highway-held, that the expense of repairing such highway would be a legal charge against the funds pertaining to the general appropriation for army transportation of the Quartermaster's Department, provided the repair would be useful for military purposes. Card 3683. November, 1897.

476. Held, that telegrams sent and received by those engaged in recruiting organizations of the volunteer army of the United States, and which related to such recruiting, are official and may be paid for as telegrams sent and received in carrying on such official business of the Government, out of the appropriation in the Quartermaster's Department made for that purpose, and at the rates fixed for other official telegrams. Card 4670, July, 1898.

477. Held, that telegrams containing applications for leaves of absence, for extension of same and inquiries as to whether they have been granted, independently of any regulation on the subject, are not "telegrams on official business" within the meaning of the act making an appropriation for payment of "cost of telegrams on official business," and can not therefore be paid for from that appropriation.1 Card 6935, September, 1899.

478. Held, that the act of Congress making an appropriation for the "relief of the people of Alaska” and providing that the supplies should be purchased and the relief furnished under the direction of the War Department did not authorize the use of the appropriation to reimburse private parties for relief furnished by them prior to the passage of the

1 Referring to this case the Comptroller under date of October 27, 1899, said (6 Comp. Dec., 422): "It requires no argument to show that leaves are granted for the benefit of the persons and that any cost relating thereto should not be borne by the United States. I have to advise * * * that said telegrams should not be paid for by the United States."

Where a Brigade Surgeon, U. S. V., in charge of a hospital at Philadelphia, Pennsylvania, sent certain telegrams with a view to obtaining leaves of absence for officers in said hospital who were convalescent to enable them to go to their homes and thus relieve the hospital of their care and enable it to retain accommodations for others of the sick who might be sent there for treatment, the Secretary of War, under date of November 17, 1899, said: "The sending of such telegrams under the circumstances is viewed as not only an official act performed in pursuance of duty but as also in the interests of the military service, and is not regarded as subject to the provisions of Par. 1209, A. R., which are held as applying to applications for personal leaves and therefore does not come within the scope of the opinion of the Comptroller of the Treasury and the Judge-Advocate General of the Army."

act.' Cards 6078, March, 1899; 7344, November, 1899; 7483, January, 1900.

479. By act of Congress approved July 8, 1898, $200,000 was appropriated "to enable the Secretary of War, in his discretion, to cause to be transported to their homes the remains of officers and soldiers who die at military camps or who are killed in action or who die in the field at places outside of the limits of the United States." Held, that the appropriation could be used for providing metallic caskets and other expenses incident to disinterring the remains and preparing them for shipment as well as for transportation proper, as such expenses are necessary and proper to their transportation. But further held, that the act did not apply where the deceased officer or soldier died within the limits of the United States. Card 4808, August, 1898.

480. Where the collectors of customs (army officers) under the military government in Porto Rico were required to transfer a portion of the funds to subsistence officers to be expended for the subsistence of the army, held, that the collection, transfer and disbursement of these funds were under the control of the military commander or military governor and did not form any part of an appropriation. made by Congress for the support of the army. Such funds should not therefore be taken up on accounts current of disbursing officers in connection with funds from such appropriations. Card 5464, December, 1898.

481. Sec. 1136, Rev. Sts., provides that "permanent barracks or quarters and buildings and structures of a permanent nature shall not be constructed unless detailed estimates shall have been previously submitted to Congress, and approved by a special appropriation for the same, except when constructed by the troops; and no such structures, the cost of which shall exceed twenty thousand dollars, shall be erected unless by special authority of Congress." In practice this section has been construed to permit of the construction out of the annual appropriation for "barracks and quarters" of permanent buildings, at a cost not to exceed $20,000, although no detailed estimates "have been previously submitted to Congress, and approved by a special appropriation for the same," and also to permit of the construction of more than one permanent building at a particular post for the same purpose, even though their aggregate cost should exceed $20,000.00. In view of the apparently contradictory provisions of See 5 Comp. Dec., 257.

See A. R., 162, as amended by G. O. 141, A. G. O., 1898, which provides for the cases of soldiers dying within the limits of the United States. See A. R. 180 of 1901.

the section, advised that the construction which it has received in practice be adhered to. Card 6985, September, 1899.

482. Money donated and turned over to the United States to be expended upon a public work would have to be appropriated by Congress to that work before it could be used thereon. Card 1662, August, 1895.

ARMY-EMPLOYMENT OF FOR CIVIL PURPOSES.1

483. Under Art. IV, Sec. 4, of the Constitution, the army may be employed to protect a State from "invasion" or "domestic violence." only by the order of the President, made "on application of the legislature, or of the executive when the legislature cannot be convened." A military commander, of whatever rank or command, can have no authority, except by the order thus made of the President, to furnish troops to a governor or other functionary of a State, to aid him in making arrests or establishing law and order. XXX, 125, March, 1870; XLI, 206, April, 1878.

484. The proviso of the Constitution—“when the legislature cannot be convened," may be said to mean when it is not in session, or cannot, by the State law, be assembled forthwith or in time to provide for the emergency. When it is in session, or can legally and at once be called together, it will not be lawful for the President to employ the army on the application merely of the governor. XXX, 172, March, 1870.

485. A military force employed according to Art. IV, Sec. 4, of the Constitution, is to remain under the direction and orders of the President as commander-in-chief and his military subordinates: it cannot be placed under the direct orders or exclusive disposition of the governor of the State. XXX, 172, supra; card 8383, May, 1900.

486. Though dicta are to be met with in the authorities looking to such a service as legal, it is clear that the military forces of the United States, cannot, as such, be permitted, in any event, to serve upon the posse comitatus of a sheriff, or other executive official whose function it is to execute the local laws of a State or Territory. XXXVI, 450, May, 1875; XXXIX, 458, 577, March and June, 1878.

487. It is provided in sec. 15 of the act of June 18, 1878, c. 263, that— "From and after the passage of this act it shall not be lawful to employ any part of the army of the United States as a posse comitatus, or otherwise, for the purpose of executing the laws, except in

1 For a full discussion of this subject and citation of authorities, see "The Use of the Army in Aid of the Civil Power," by G. N. Lieber, Judge-Advocate General, U. S. Army, Appendix B, p. 759, post.

such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress." In view of this legislation, held as follows:

That whenever a marshal or deputy marshal was prevented from making due service of judicial process, for the arrest of persons or otherwise, by the forcible resistance or opposition of an unlawful combination or assemblage of persons, the President was expressly authorized by Sec. 5298, Rev. Sts., to employ such part of the army as he might deem necessary to secure the due service of such process and execute the laws. XXXIX, 665, September, 1878; XLIII, 80, November, 1879; 324, May, 1880.

That, notwithstanding the legislation of June 18, 1878, the President was authorized to employ the military to arrest and prevent persons engaging in introducing liquor into the Indian country contrary to law, as also to arrest persons being otherwise in the Indian country in violation of law, or to make the arrest therein of Indians charged with the commission of crime; such employment being expressly authorized by Sees. 2150 and 2152, Rev. Sts. XLIII, 112, December, 1879.

That the President was authorized by sec. 2150, Rev. Sts., to remove by military force, after a reasonable notice to quit, certain persons commorant upon an Indian reservation contrary to the terms of a treaty between the United States and the tribe occupying the reservation, and

As to what provisions of the Constitution and acts of Congress are excepted, see paragraphs 486-491, A. R. of 1895 (563–568 of 1901).

As U. S. marshals are not expressly authorized by any Act of Congress to summon the military to serve on a posse comitatus (this being authorized only indirectly and impliedly by the provision of the act of Sept. 24, 1789, incorporated in Sec. 787 of the Revised Statutes, 6 Opins. At. Gen., 466, 471; Letter of At. Gen. Evarts to the U.S. Marshal for the No. Dist. of Fla., At. Gen.'s Office, Aug. 20, 1868; General instructions to U. S. Marshals from At. Gen. Taft, published in G. O. 96, Hdqrs. of Army, 1876), the army can not, under the existing law, legally act on the posse comitatus of a marshal or deputy marshal of the United States. See 16 Opins. At. Gen., 162 (Oct. 10, 1878); 17 id., 242, 333; 19 id., 293; 21 id., 72.

While the object of the serving of U. S. troops on the posse of a U. S. Marshal (where legally authorized so to serve) is simply to assist and co-operate with him in the enforcement of the process committed to him for execution, and the commander of the detachment is to consider himself as acting in subordination to the civil officer (see At. Gen. Evarts's letter of instructions cited, supra), the troops employed are to be regarded as under the command of their military superiors, and directly responsible to the latter as on other occasions of the performance of military duty and service. See G. O! 96, A. G. O., 1876; also par. 490, A. R. of 1895 (567 of 1901). See Sec. 5300, Rev. Sts., as to proclamations by the President whenever in his judgment it becomes necessary to use the military forces under Secs. 5297, 5298, and 5299 or other sections of Title LXIX, R. S. As instances of such proclamations see Proclamation of Oct. 7, 1878, 20 Stat., 806; do. of July 8 and 9, 1894, 28 Stat., 1249, 1250. See also the President's (Cleveland) reply to Gov. Altgeld, July 5, 1894published in "The Use of the Army in Aid of the Civil Power" (Lieber), Appendix B, post, page 784.

But note that, in view of the provisions of Sec. 2151, Rev. Sts., an officer of the army who detains a person arrested under Sec. 2150 longer than five days before "conveying him to the civil authority," or subjects him when in arrest to unreasonably harsh treatment, renders himself liable to an action in damages for false imprisonment. In re Carr, 3 Sawyer, 316; Waters v. Campbell, 5 id., 17.