and the erection of bridges thereon, and to permit cattle to be driven across them, was apparently intended to confer power on him to grant more permanent privileges than revocable licenses give. A license is a bare authority to do a certain act or series of acts upon the land of the licensor without possessing or acquiring any estate therein. The Judge-Advocate General's Office has always held that the Secretary of War may, by revocable license permit a temporary use, terminable at his discretion, as the public interests may require, of United States lands under his control, provided such license conveys no usufructuary interest in the land, and such use does not conflict with the purpose for which the land is held. The word license, as applied to real property, imports an authority to do some act or series of acts upon the land of another. It passes no interest in the land itself and its only effect is to legalize an act which in the absence of the license would constitute a trespass. It may be created by parol, although a writing defining the exact nature and scope of the license is preferable.1 In 1891, the Secretary of War decided that military reservations and lands occupied by the War Department are held and occupied for military purposes only, and that no licenses for their use or occupation would be given without authority from Congress, unless such use or occupation would be of some benefit to the military service. (Circ. 12, A. G. O., 1891.) It will be noticed that this is merely the announcement of a policy, and not the denial of the existence of the power. And, as a matter of fact, the policy thus declared was not carried out. In practice it is fully recognized that the Secretary of War may thus license any act which would not be an injury to the property nor conflict with the purpose for which it is held. This is giving a reasonable application to the rule against the granting of usufructuary interests or permission to commit waste. So far as the "sectarian purpose" for which a license may be required, is concerned, it is evident that such purpose does not affect the power to grant the license but the policy of granting it only. In the absence of action by Congress, the exercise of the power rests in the discretion of the President, and the purpose can be no restriction on his discretion, except in so far that it must not be incompatible with, that is, an interference with or an obstruction to, the general use for which the land is held. Card 2961, February, 1897.

1615. In an opinion dated May 19, 1897, the Attorney General held with reference to the license for the construction of a Roman Catholic chapel on the West Point reservation, that the Secretary of War had no authority to grant it. He also held in an opinion, dated July 7, 1897, that the Secretary of War had no authority to grant permission

'Rice on Real Property, p. 505.

for the erection of a Bethel reading room and library within the military reservation on Ship Island, Miss. By act of July 8, 1898 (30 Stat., 722), the Secretary of War was given authority to permit the erection of buildings for religious purposes on the West Point reservation, but no such authority has been given with reference to other military reservations. Advised that under the opinions of the Attorney General above cited, the Secretary of War was without authority to license the construction of a building for a Roman Catholic chapel on the Fort Hancock military reservation. Card 6960, August, 1899. Similarly advised with respect to an application for license to erect on the same reservation a building to be used exclusively for Union Protestant worship. Card 4974, September, 1898.

1616. Held that the Secretary of War is without authority to license the commission of waste upon military reservations, or under the act of July 28, 1892, to lease them for a purpose which would amount to waste; but the rule here stated has not been strictly observed in practice. Cards 2879, 2930, February, 1897; 3619, November, 1897; 4126, May, 1898; 7900, April, 1900.

LINE OF DUTY.

1617. The term employed in the Pension Laws-"in the line of duty" is much more comprehensive than the term "on duty", as used in the 38th Article of War. Its application is not limited to a status of actual present performance of some specific military duty, but it relates to a condition under which military duty may be regularly performed in contradistinction to a condition inconsistent with the performance of any ordinary duty-such as the condition of being on leave of absence or of being retired. These laws being beneficial in their character, the term is to be construed so as to advance the benefit rather than to restrict it. LI, 347, June, 1887. A soldier is not necessarily out of the line of duty when he is in confinement for a military offence, since it is a part of his military duty to submit to such punishIf pending such confinement he receives an injury which was in fact a casualty of the service not incurred by his own fault or negligence, his claim for pension should not be prejudiced by the fact that he was in confinement under sentence of a court martial when the injury was received. XLI, 257, June, 1878.

ment.

1618. But the being "in the line of duty" is not inferable merely from the being in the service, but is an independent fact to be affirmatively proved. Thus where a soldier was killed by the accidental dis2 See 1 Opins. At. Gen., 182; 7 id., 161.

121 Opins. At. Gen., 537, 565.

charge of a carbine in the hands of another soldier with whom he was at the time engaged in rough play or scuffling, the soldier killed being armed with a stone, held that the killing was not in the line of duty. To be in the line of duty it is not necessary that the soldier should, at the time of the injury, be engaged in the execution of a specific act of military duty, but he must not be doing something quite unconnected with duty and inconsistent with his proper military function. 61, 188, August, 1893.

1619. Similarly held in regard to a soldier who was shot and physically injured in barracks by the accidental discharge of a pistol, the personal property of a fellow-soldier, who was, at the time, manipulating and exhibiting the same with a view of making a sale of it to the other, in violation in fact of a post general order forbidding the use or production of arms other than those furnished by the Government. The injury in this case was not caused or incurred while in the legitimate performance of a military duty or service, or as a result, direct or indirect, of any such performance. It was connected in no manner with duty or service or with the military relation of the parties, but grew out of a purely private and personal transaction. 58, 10, Fbruary, 1893.

1620. It has uniformly been ruled, in the administration of the Pension Laws, that a soldier absent from his command on sick furlough remained in the line of duty." So, in the case of a volunteer soldier who had been given a sick furlough for twenty days, and was disabled by the kick of a horse so that he could not return, held that if the disability was incurred before the expiration of his furlough, he was then "in the line of duty" within the meaning of the act of March 2, 1889, providing for the removal of the charge of desertion in certain cases, and the charge of desertion against him should be noted as erroneous. 44, 462, January, 1891.

1621. Sec. 4700, Rev. Sts., puts enlisted men " on veteran furlough with the organization to which they belong" upon the same footing ast men on sick furlough. So, held that a volunteer soldier furloughed with the rest of the organization to which he belonged might also properly be considered as "in the line of duty", while absent from his command on such furlough, within the meaning of the act of March 2, 1889. 47, 448, June, 1891.

1622. In a circular, dated May 11, 1893, from the Surgeon General's Office, the following rule, approved by the Secretary of War, is laid down: "It is just to assume that all diseases contracted or injuries received while an officer or soldier is in the military service of the United States occur in the line of duty unless the surgeon knows first that the disease or injury existed before entering the service; second,

that it was contracted while absent from duty on furlough or otherwise; or, third, that it occurred in consequence of willful neglect or immoral conduct of the sick man himself." There appears, however, to have been no rule laid down by the War Department with reference to injuries received through carelessness. In a case decided by the Assistant Secretary of the Interior on July 24, 1890, it was held that gross carelessness by the soldier in handling his gun rendered his title to pension for an injury resulting from such carelessness questionable on the ground of contributory negligence. In another case, decided April 11, 1891, the same authority held that a pistol shot wound, caused by the accidental discharge of the weapon while the soldier was engaged in cleaning the same for use in the performance of special service as a teamster in the Quartermaster's Department, being unattended by contributory negligence, was in the line of duty for pensionable purposes. The rule with respect to contributory negli gence cannot however be applied in all its strictness in determining the question whether a soldier's injuries have been received in the line of duty, but it is safe to say that injuries are not so received when caused by the soldier's gross carelessness. Beyond this it is not safe to attempt to lay down any rule, but best to leave each case to be determined upon its own facts. Thus where a soldier, while in barracks preparing to clean his carbine, accidentally discharged it, inflicting a wound upon himself, it appearing that he had just previously on the target range fired a number of shots and had in some way left a cartridge in the piece, that he had had, prior to his entry into the service a short time before, no experience in the handling of firearms and that the particular arm was a new model of carbine recently issued; held that the facts did not fix upon the soldier that degree of carelessness which would require it to be held that he was not in the line of duty when the injury was received. Card 2474, August, 1896.

1623. The Interior Department ordinarily decides for itself whether, for pension purposes, a death or disability was incurred in the line of duty; but the War Department must also decide for itself the meaning of the phrase when applied to facts requiring its action, and in some instances different constructions by the two departments have resulted. Formerly the expression "line of duty" was more strictly construed than latterly,' but the earlier construction has not been adopted in practice. By section 4 of the act of March 3, 1865 (13 Stat., 488), it was provided, "that every non-commissioned officer, private, or other person, who has been or shall hereafter be discharged from the army of the United States by reason of wounds received in battle, or skirmish,

11 Opin. At. Gen., 182; 7 id., 161, 162.

*

on picket, or in action, or in the line of duty shall be entitled to receive the same bounty as if he had served out his full term." And by an act approved April 12, 1866, it was declared, "that the true intent and meaning of the words or in the line of duty', used in the fourth seetion of the act approved March 3, 1865, requires that the benefit of the provision of said section shall be extended to any enlisted man or other person entitled by law to bounty who has been or may be discharged by reason of a wound received while actually in service under military orders, not at the time on furlough or leave of absence, nor engaged in any unlawful or unauthorized act or pursuit." For the purpose of the earlier legislation, this legislative construction is conclusive, but it is not necessarily so in determining the soldier's condition or military status in other cases; for example, as to his right. of admission to the Soldiers Home. A further limitation has been in practice recognized, viz., that the disability must not be the result of the unlawful or unauthorized act as a direct or contributory cause.1 The principle as stated in the act of April 12, 1866, modified by the limitation just stated, is as accurate a general statement of the meaning in military administration of the expression "in the line of duty" as can be given. It is, however, subject to exceptions. Thus, a soldier may be on furlough, yet in the line of duty, as when en route to his station or when during his furlough he is, in compliance with orders, on his way to a place to report his whereabouts. So, certain acts may in a measure be contributory causes of disability and yet not to such a degree as to bring the case within the general rule, as when the disability is the result of negligence but the negligence is not of such a degree as to amount to culpable contributory negligence. So, a soldier in confinement or arrest is, in a restricted sense, not in the line of that kind of military duty for which he was enlisted, but in a general military sense he is in the line of duty, or rather he is not taken out of the line of duty by the fact of his confinement. A disability incurred while in military confinement or arrest is "in the line. of duty," or not, according to the facts of the case. Thus, a military prisoner incurring a disability while aiding the guard in suppressing a mutiny incurs his disability in the line of duty; if he incurs it while engaging in the mutiny it would not be in the line of duty. If the disability is incurred while at work as a prisoner, it would be in the line of duty; and so too if the disability were simply the result of the confinement (for example, rheumatism contracted in confinement), and this notwithstanding that the confinement is the direct consequence of the soldier's unlawful act. Applying these principles to the case of a

See Circular, approved by the Secretary of War, from the Surgeon General's Office, dated May 11, 1893, quoted in preceding section.