as such, and that it could not legally be turned into the "mess fund" for the purchase of vegetables for the post. 40, 72, March, 1890.

2083. Congress is vested by the Constitution with the exclusive power of disposition of the personal as well as the real property of the United States;1 and by Sec. 3618, Rev. Sts., Congress has provided generally that the proceeds of sales of personal property of the United States shall be paid into the Treasury as "miscellaneous receipts." Held therefore that the various funds received at military posts, on military reservations or otherwise, as compensation for public property occupied, sold, or allowed to be used or appropriated, or for labor furnished, or privileges or facilities conceded, &c. (such as moneys received for rents of fisheries, for fallen timber, for surplus lumber, manure, &c., for metallic cartridge shells collected at target ranges, for grazing privileges, brickyard privileges, quarrying privileges, the privilege of cutting ice, repairs done to wagons, shoeing of teams, tolls for teams and wagons passing across reservations, &c., &c.), were public money of the United States, to be accounted for to the Treasury, and could not be legally retained as a so-called "slush fund," or disbursed for the use or benefit of the post or command. Otherwise, as to the proceeds of the sale of the savings from rations, or of the sale of any other company or regimental, &c., property. And money paid to a band for playing to citizens, being for a quasi personal service, may go to the band fund. But, while de minimis non curat lex, the proceeds of all public property of any material value, including all moneys exacted or received from civilians, are to be turned into the Treasury; and otherwise to dispose of them is embezzlement. 43, 308, October, 1890; 52, 138, February, 1892.

2084. The act of July 28, 1892, c. 316, authorizes the Secretary of War, in his discretion, to "lease for a period not exceeding five years, and revocable at any time, such property of the United States under his control as may not for the time be required for public use," such leases to be "reported annually to Congress;" but does not prescribo as to the disposition of the moneys received as rents. Sec. 3621, Rev. Sts., provides for the disposition of public moneys coming into the possession of any person, and par. 698, A. R. (1889), directs that "the face of the certificate or receipt" shall "show to what appropriation the funds belong. Advised that it would be sufficient for any post quartermaster or other disbursing officer into whose hands such rents should come, to note the character of the payment upon his certificate, leaving it to the War Department to report the same in the aggregate to Congress at the end of each year. 59, 369, May, 1893.

1U. S. v. Nicoll, 1 Paine, 646 (Fed. Cas., 15,879).

PUBLIC PRINTING.

2085. Advised that, under the prohibitory provisions of the act of July 7, 1884, c. 332, a work entitled the "Manual of Calisthenics" cannot legally be authorized or caused, by the Secretary of War, to be printed by the Public Printer, unless the same be, in the words of the act, "necessary to administer the public business." The term “necessary" has been construed, in similar connections, as meaning— not absolutely necessary, but reasonably necessary or clearly conducive, to the object expressed. (See the Legal Tender Cases, 12 Wallace, 457, 539.) The Secretary of War should be assured that the proposed publication would clearly and materially conduce to the due administration of the public business, before causing the printing to be done by the Public Printer. 50, 442, December, 1891. Similarly adrised in regard to a translation, by an artillery officer, from the Russian, of lectures on the subject of the "Resistance of Guns and Interior Ballistics"; a precedent being cited of a work by a surgeon of the army, entitled "Notes on Military Hygiene", held by the Secretary of War (April, 1890) to be valuable though not necessary in the sense of the statute. 50, 444, December, 1891.

2086. Held that the Secretary of War is authorized by law" (see public printing and binding act. of January 12, 1895) to have the Commissary's Hand Book, or any other similar work needed in the business of the War Department, printed at the Government Printing Office and paid for from the War Department's allotment of the appropriation for "public printing and binding". Card 1679, August, 1895.

PUBLIC PROPERTY.

2087. The Constitution-Art. IV, Sec. 3, par. 2-provides that "the Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States." The scope of this provision is most comprehensive; the authority conferred thereby upon the legislative branch of the Government being held to extend from the formation of a Territorial government to the matter of the sale of a small amount of personalty. That neither land nor any interest in land of the United States can be sold or otherwise disposed of by the head of an executive department or other executive official or by a military officer, without the authority of Congress, is settled law. VII, 404, March, 1864;

This fundamental rule of our public law is expressed by Attorney General Hoar (13 Opins., 46), as follows: "I am clearly of opinion that the Secretary of War cannot convey to any person any interest in land belonging to the United States, except in pursuance of an act of Congress expressly or impliedly authorizing him to do so." And see United States . Nicoll, 1 Paine, 646 (Fed. Cas., 15,879); Seabury . Field, McAllister, 1; United States r. Hare, 4 Sawyer, 653, 669.

XXIII, 135, July, 1866; XXX, 605, August, 1870; XXXV, 307, April, 1874; XLII, 283, May, 1879; LIV, 609, February, 1888. In the absence of such authority, the lands of the United States, whether held by original proprietorship, or acquired by purchase or gift, or by conquest, cannot, even for a purely benevolent or religious purpose, be given away any more than they can be transferred for a valuable consideration. XXXIX, 337, December, 1877. Nor (without such authority) can they be conveyed temporarily by lease, whether for a short or long term.' XXXII, 2, May, 1871; XXXIX, 336, December, 1877; XLII, 230, March, 1879.

2

2088. Nor, without authority from Congress, can an executive department or officer convey away any usufructuary interest in land of the United States. Thus it has been repeatedly held by the JudgeAdvocate General that the Secretary of War (or a military commander) was not empowered, of his own authority, to grant a right of way over a military reservation to a railroad company or other corporation. XXXI, 237, March, 1871; XXXIV, 197, 470, March and September, 1873; XXXV, 554, August, 1874; XXXVI, 207, January, 1875; Card 241, August, 1894. And such rights when given by Congress, can be exercised only within the terms of the grant. Thus where by an act of Congress there was granted to a railroad company a limited and defined right of way across a military reservation (occupied by a military post), held that the company was authorized simply to construct a track or roadway, and was not empowered to put up depots, stock yards, cattle pens or other erections upon the land, or to appropriate land otherwise than for the roadway. XLI, 214, April, 1878; XLII, 187, March, 1879. So held that the Secretary of War could not, of his own authority, grant, in consideration of the payment of toll to the United States, a right of way over a bridge belonging to the United States. XXXI,

3

1 See Friedman . Goodwin, 1 McAllister, 148, where a lease made, by the post commander at San Francisco, of a part of a "government reserve," though approved by the military governor of the then Territory and also by the Secretary of the Interior, was held void because not authorized by Congress. The court declares the "utter impotency of any attempt by an officer of the Government to alien any land, the property of the United States, without the authority of an act of Congress;" adding that "the President with the heads of the departments combined" could not effect such an object. And see 4 Opins. At. Gen., 480; 9 id., 476; 13 id., 46; United States v. Hare, 4 Sawyer, 670-1. In the last case the court says: "The Secretary of the Treasury cannot execute or approve of a lease of any property belonging to the United States without special authority of law."

But see now the act of July 28, 1892 (27 Stats., 321), which gives the Secretary of War authority to lease for a period not exceeding five years and revocable at any time, public property under his control (except mineral and phosphate lands), not for the time required for public use.

2 In numerous statutory enactments such a right has been expressly given by Congress as the only authority competent for the purpose.

See this opinion affirmed by the Attorney General in 14 Opins., 135.

136, January, 1871; XXXVIII, 41, April, 1876. So held that the Secretary could not legally grant to a company or individual the right to erect and maintain for an indefinite period a hotel on the military reservation at Sandy Hook. XXXVIII, 351, November, 1876. So held that the Secretary would not be authorized to transfer a lot belonging to the United States in Washington to the Commissioners of the District of Columbia for the erection of a hospital. XXXVI, 668, September, 1875. So held that neither the Secretary of War nor a department commander could grant to an individual or individuals the exclusive right to use for an indefinite period certain water power belonging to the United States (XLI, 136, February, 1878); nor the exclusive right to mine the soil of a military reservation for a certain. term of years (XLI, 37, November, 1877); nor a similar right to make and maintain for an indefinite period ditches through a portion of such a reservation for the purpose of irrigating the lands of private parties (XXXVIII, 232, August, 1876); nor the right annually to enter upon and occupy a military reservation and cut and possess the hay crop growing thereon (XLII, 128, January, 1879); nor the right permanently or indefinitely to occupy and use a portion of a reservation for a burying ground. XXXIX, 337, December, 1877.

2089. Held, however, that a distinction was to be observed between a grant of a usufructuary interest in land and a revocable license, not involving a transfer of such an interest. XXXIII, 657, January, 1873; XXXIV, 196, March, 1873; XLIII, 278, April, 1880. Thus held that the Secretary of War would be authorized to permit a telegraph company to erect posts upon a military reservation and attach to the same telegraph wires, subject to their being removed at the will of the Government if found to interfere with the purposes for which the reservation was established. XXXVIII, 591, May, 1877. So held that a municipal corporation might legally be permitted by the Secretary of War to lay water pipes in the soil of the arsenal grounds at Springfield, Mass., the same being equally for the benefit of the military authorities and the citizens, and subject to removal at the

1See confirmatory opinion of the Attorney General in 16 Opins., 205. In this case there was the further objection that the State of New Jersey, in ceding to the United States jurisdiction over the premises, by deed of March 10, 1846, had expressly declared that the grant was "for military purposes;" adding, "and the said United States shall retain such jurisdiction so long as the said tract shall be applied to the military or public purposes of the said United States, and no longer."

A fortiori in regard to growing timber. See Spencer v. United States, 10 Ct. Cls., 255.

See this distinction recognized in opinions of the Attorney General of October 1 and November 22, 1878 (16 Opins. 152, 205), in the former of which it was held that the Secretary of the Navy was not empowered to authorize the City of Chelsea, Mass., to continue one of its main sewers through the grounds of the U. S. Naval Hospital.

will of the Government. XXXVI, 653, August, 1875. And held that a post trader might legally be licensed by the Secretary of War to erect the buildings necessary for his business upon the land of the post for which he was appointed. XXXIII, 453, October, 1872; XXXV, 78, December, 1873. But held that the Secretary of War was not empowered to accede to the application of an individual to establish a ferry across a river within the limits of a military reservation, where what was asked was not a mere license revocable at the will of the Secretary but a permanent franchise and grant of an exclusive usufructuary interest in the premises, including even the right to charge tolls to the United States. XXXVIII, 564, April, 1877; XXXIX, 457, March, 1878; XLII, 454, December, 1879. And similarly held in a case of an application to be permitted to erect and maintain a permanent bridge across a river forming a boundary of a military reservation, one end of which was to be built upon the soil of the reservation; the application contemplating not a mere license revocable at the will of the Government, but a permanent right of property in the bridge involving an easement in the land. XLIII. 167, January, 1880. Also similarly held where the application was to bore for gas on a military reservation and for the exclusive privilege of piping and disposing of the same, if found in paying quantities. Card 285, September, 1894. (See LICENSE.)

2090. The provision of the Constitution in regard to the disposition of public property applies to personalty equally as to realty. Thus no executive department or officer can be empowered, except by the authority of Congress, to dispose of personal property of the United States. XXX, 605, August, 1870; XXXVIII, 11, December, 1875;

See 14 Opins. At. Gen. 125.

"The leading case on this point is United States r. Nicoll, 1 Paine, 646 (Fed. Cas., 15,879), in which it was held that a sale or loan, by the commandant of an arsenal, of a quantity of lead belonging to the United States, was illegal and invalid. The court say: "The Constitution declares that 'Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. No public property can therefore be disposed of without the authority of law, either by an express act of Congress for that purpose, or by giving the authority to some department or subordinate agent. No law has been shown authorizing the sale of this lead; nor is any such authority to be inferred from the general power vested in any of the departments of the Government. The power, if lodged anywhere, would seem most apprepriately to belong to the War Department. But there is no such express or implied power in that department to sell the public property put under its management.” And see the same principle recognized in an opinion of the Attorney General (16 Opins. 477), in which it is held that the Secretary of War was not empowered to sell arms to a State, in the absence of authority from Congress.

In certain emergencies, however, the use of property of the United States to relieve suffering among persons not entitled to such aid has been authorized by the Presi dent, and similarly the Army Regulations contain provisions with reference to the care of certain sick persons not entitled to such care; but there is no authority of law for this. It can only be said to rest on the necessity of furnishing relief in such cases. See note to § 2300, post.