and county. Held that such officer, in accepting, would not be appointed to a civil office in the sense of Sec. 1222, Rev. Sts., but would be simply employed (with the approval of the Secretary of War) to perform a certain temporary service. The case distinguished from that of Col. Gillmore, Corps of Engineers. 54, 64, June, 1892.

1830. Held that an officer of the army could, without ceasing to be such officer under Sec. 1222, Rev. Sts., be assigned to and perform the duties of Adjutant General of the District of Columbia Militia, the same not being (at the time) a "civil office" created by law. LII, 271, June, 1887.

1831. Held, in view of the provisions of Sec. 1224, Rev. Sts., that an officer of the army could not legally be detailed in the service of "The World's Exposition of 1892," which is a corporation, nor upon "civil works" under the "World's Columbian Commission," which is not a corporation. And advised that, irrespective of the statute, to assign an officer of the army to a duty which must, entirely or in great measure, and for any considerable period, separate him from the military duty for which Congress has authorized his employment and his pay, would, in the absence of statutory sanction, be unauthorized. 49, 211, September, 1891. Also further held, in view of Sec. 1224, Rev. Sts., that an officer of the army could not legally be detailed to inspect the buildings in the course of construction for the World's Columbian Exposition, since such inspection would be an employment "on civil works," and would require his separation from his corps and interfere with the performance of his military duties. 49, 245, September, 1891.

3

1832. The convention between the United States of America and the United States of Mexico dated March 1, 1889, provided for an "International Boundary Commission" to be composed of (1) a commissioner appointed by the President of the United States of America, and of another to be appointed by the President of Mexico, in accordance with the constitutional provisions of each country; (2) of a consulting engineer appointed in the same manner by each government; and (3) of such secretaries and interpreters as each government may see fit to add to its commission. On the question whether the acceptance by an officer of the army (captain of engineers) of an assignment or detail as "associate member," the same to be made by the Secretary of War,

'Col. Gillmore's case referred to is reported in 18 Opins. At. Gen. 11. And see Gen. Meade's case in 13 id. 310; also case in 16 id. 499. Compare the still more recent opinion of the Atty. Gen., in 20 Opins. 604.

"See now act March 1, 1889 (25 Stats., 772), authorizing such assignment.

3 Compare case in 19 Opins. At. Gen. 600. Congress, subsequently, by act of August 5, 1892, expressly authorized the Secretary of War to detail at his discretion officers of the army "for special duty in connection with the World's Columbian Exposition."

would vacate the officer's commission, held, that the boundary commission in question could have no members other than the three classes above mentioned; that such members are officers thereof and hold civil offices; and that while the Secretary of War was without power to make, by assignment or detail, a person a member of the commission, the exercise by an army officer, under such assignment or detail of the functions of the office of a member would under the provisions of Sec. 1992, Rev. Sts.. vacate the officer's commission in the army. But remarked that if the officer were merely detailed to consult with and advise the consulting engineer of the commission and not authorized or required to perform any official act purporting to be an act of a member, he would not, by acting pursuant to such a detail, vacate his commission in the army. Card 2236, April, 1896.

1833. If the position of assistant to the postmaster at Mescalero, New Mexico, is an office, an officer of the army on the active list would under Sec. 1222, Rev. Sts., by accepting it, vacate his commission in the army. If it is not an office, the same result would follow his holding said position and exercising the functions of postmaster. Card 1854, November, 1895.

1834. The position of colonel of a division of the "Rhode Island Division, Sons of Veterans, United States of America," is not a civil public office within the meaning of Sec. 1222, Rev. Sts. Card 2887, February, 1897.

1835. While the act of July 13, 1892 (27 Stats. 120), authorizes the detail of army officers as Indian agents, there is no statute specially authorizing an army officer to hold the office of assistant to the Deputy Commissioner of Indian Affairs. If such position is a "civil office" within the meaning of Sec. 1222, Rev. Sts., an army officer on the active list could not accept it or exercise the functions thereof without vacating his commission in the army. Card 2789, December, 1896.

1836. The assignment of officers of the army as collectors of customs in Cuba and Porto Rico, being in foreign territory under military occupation, held assignments to military duty and not to civil offices within the meaning of Sec. 1222, Rev. Sts. Card 5771, February, 1899. 1837. Whether a person who holds a State or county office can accept and hold an office as commissioned officer in the volunteer army of the United States without vacating his civil office is a question to be determined by the laws of the State.' Cards 4079, 4493, April and June, 1898.

1Under date of June 10, 1898, the Attorney General held (22 Opins. 88) that the provisions of Section 1222, Revised Statutes, do not apply to an officer of the United States volunteers for the reason that he is not an "officer of the army on the active list" within the meaning of that statute.

OFFICER.

1838. On account of the want of familiarity with the procedure of military courts on the part of militia officers of Louisiana, it was asked by the adjutant general of that State whether it would be admissible to detail upon such courts officers of the army who might be serving in the State, in connection with militia officers. Held that, apart from the provision of Sec. 1658, Rev. Sts., that such courts should be composed of militia officers only (see MILITIA), the Secretary of War would not be authorized to order officers of the army upon a duty so clearly outside of the functions devolved upon them by existing law, in the absence of express authority received from Congress. 60, 168, June, 1893.

1839. Where an officer of the army, having become accountable under Sec. 1304, Rev. Sts., for a deficiency or damage to military supplies, had deceased, held, in the absence of the exculpatory evidence indicated in the section, that the amount of such deficiency, &c., was chargeable against the pay due his estate. 16, 236, April, 1887.

1840. The object of the act of Feb. 3, 1887, c. 92, was to remunerate men for services rendered as officers prior to their being actually mustered in as such. It was not intended, however, to be used to make a person an officer who was not such. It did not provide for a re-muster, but declared that persons commissioned as officers should be considered, for purposes of pay, as having been mustered from the date when they commenced their services. 38, 30, January, 1890. A person was appointed an assistant surgeon of a volunteer regiment, and performed his duties as such from December, 1862, to February, 1863, without being mustered in. Held that he was a de facto officer, and entitled, under the act of Feb. 3, 1887, to pay for the said interval. 44, 244, December, 1890.

1841. G. O. 92 of 1862, War Department, provided that "all officers and privates fit for duty absent at that time (from the special muster of August 18, 1862) will be regarded as absent without cause, their pay will be stopped and they dismissed from the service or treated as deserters, unless restored; and no officer shall be restored to his rank unless by the judgment of a court of inquiry to be approved by the President, he shall establish that his absence was with good cause.” The order also provided that disability from wounds received in the service should be a sufficient excuse for absence from the special muster of August 18, 1862. Under this order a first lieutenant, First Battery, Minnesota Light Artillery, being absent from the special muster of August 18, 1862, was dropped as a deserter. Subsequently a court of inquiry found that he was absent in consequence of wounds received in

action, and he was restored to duty January 12, 1863. After he was dropped as a deserter a sergeant of the battery was commissioned as first lieutenant in his stead. The sergeant was not formally mustered in as first lieutenant but from August 26, 1862, to January 1, 1863, he rendered services as such and was paid therefor, and on January 1, 1863, was mustered in as captain of the battery. He was never formally discharged as an enlisted man, and the apparent vacancy in the grade of sergeant during the time he was performing the duties of first lieutenant under his appointment as such, was not filled. Held that the dropping of the original first lieutenant as a deserter was only conditional and that his office was not thereby vacated. He was therefore from August 26, 1862, to January 1, 1863, an officer de jure, while the sergeant supposed to have been promoted was during the same period an officer de facto; his actual status being that of a sergeant performing the duties of first lieutenant of his battery. Card 1395, August, 1895.

OFFICER'S SERVANT.

1842. Held that officers' servants, being a part of the officer's household, were entitled equitably to admission to post hospitals, and should not be regarded as a class subject to par. 1630, A. R. of 1889, relating to the admission to such hospitals of "civilians not in public service. They should be treated with the same liberality in this respect as is shown in the furnishing of subsistence supplies, which an officer is entitled to purchase not only for his own use but for that of his household. 37, 460, January, 1890.

OFFICIAL PAPERS.

1843. The official papers on file in the War Department are not public records open to the inspection of any citizen; but, except in so far as law or usage has provided for the furnishing of copies of the same or the publication of their contents, as in the case of the records of military courts, such papers are confidential archives of the Government which may be consulted, or of which copies may be furnished, only by the authority of the Secretary of War, except where the courts of law may properly require their exhibition in evidence.* The Secretary, in his capacity as an agent of the public, will of course be disposed to grant to proper persons such facilities for obtaining information from the records of his department as may, with due

A stricter view is expressed in Circ. No. 1, A. G. O., 1890.

The admission of copies in evidence is authorized by Sec. 882, Rev. Sts., as follows: "Copies of any books, records, papers, or documents in any of the Executive Departments, authenticated under the seals of such departments respectively, shall be admitted in evidence equally with the originals thereof.”

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regard to the public interests, be accorded. Where application is made for copies of papers, it will be for him, in view of the nature of the information sought, the use proposed to be made of the same, &c., to determine, in his discretion, whether the private interests involved are such as properly to outweigh any public considerations which may exist against granting the privilege. In furnishing copies, a distinction will properly be made between documents in the nature of permanent records, such as general or special orders, muster rolls, discharges of soldiers, commissions of officers, &c., and the reports and communications of officers addressed to military superiors or to the Secretary of War in the line of their official duty. The latter are generally regarded as privileged communications which even the courts, on grounds of public policy, will in general hold to be incompetent testimony and of which they will refuse to require the production in evidence.1 XIX, 375, and XXI, 142, January, 1866; XXIV, 27, November, 1866; XXVIII, 26, July, 1868; Card 7912, April, 1900.

1844. Held that all useless and valueless official papers pertaining to the records of military headquarters, posts or stations, could legally be destroyed by an order of the Secretary of War without a resort to legislation. 63, 120, January, 1894.

1845. Under Section 882, Revised Statutes, "copies of any books, records, papers or documents in any of the executive departments, authenticated under the seals of such departments respectively, shall be admitted in evidence equally with the originals thereof." The certificate under this section should be that the papers attached thereto are true copies of papers, records, etc., on file, and not "that the attached papers are found on the files of his office and form part of the records thereof." And the copies furnished should be copies of original "books, records, papers, etc.", and not copies of copies of the same. Until therefore the original books, records, etc., are filed in a department, it cannot furnish the copies contemplated by Section 882. Card 2433, July, 1896.

1846. The attorneys for a railroad company in a suit pending in a

'See Dawkins r. Ld. Rokeby, 8 Q. B. 255; Dawkins . Ld. Paulet, 5, L. Reps., Q. B. 94; Dickson v. Earl of Wilton, 1 Fos. & Fin. 419; Home . Ld. Bentinck, 2 Brod. & Bing. 130; Beatson v. Skene, 5 Hurl. & Nor. 837, 855 (Am. Ed.); Gardner v. Anderson, 22 Int. Rev. Rec. 41; 1 Greenl. Ev. § 251; 11 Opins. At. Gen. 142; 15 id. 378, 415. In the recent case of Maurice v. Worden, 54 Md. 233,-an action for damages on account of a libel claimed to have been contained in a communication of the class indicated in the text-it was held that, while such a communication is not “absolutely privileged," it is "privileged to the extent that the occasion of making it rebuts the presumption of malice, and throws upon the plaintiff the onus of proving that it was not made from duty but from actual malice and without reasonable and probable cause." But see dissenting opinion of Miller, J. See also Am. and Eng. Ency, of Law (1st ed.), v. 19, 123; Best, Principles of Ev., 561, note (a); Wharton, Law of Ev., v. 1, § 604; Worthington . Scribner, 109 Mass., 487; Appeal of Hartranft et al, 85 Pa. St., 433; U. S. e. Six Lots of Ground, 1 Woods, 234 (Fed. Cases, No. 16,299).