Thus all orders made and issued by the Secretary of War in connection with the government and regulation of the military establishmentsuch as orders convening general courts martial, or approving and directing the execution of the sentences or otherwise acting upon the proceedings of such courts,' or mitigating or wholly or partially remitting punishments imposed thereby; or orders summarily dismissing officers, or dropping for desertion, retiring or accepting the resignation of, officers; or orders establishing military reservations, or promulgating army regulations, &c., are to be regarded as the orders and acts of the President, whom the Secretary of War represents in the administration of his department; the same being presumed to be made and issued with the knowledge and by the direction of the President, whether or not he be referred to therein as having directed or commanded the same; and being equally as valid and operative as if signed by the hand of the President himself. V, 319, November, 1863; IX, 44, May, 1864; XXIII, 654, August, 1867; XXXVII, 650, June, 1876; XXXVIII, 107, 243, June and August, 1876; XXXIX, 296, November, 1877; XLI, 25, September, 1877; 611, July, 1879; XLII, 209, March, 1879; XLIII, 106, December, 1879.

2295. It is an established rule of our administrative law that a decision upon a claim once arrived at, upon whatever grounds, by the head of a department of the Government, is a finality so far that, in the absence of new evidence, error of calculation, or fraud, it cannot (without the authority of Congress) be re-opened by a successor.3 LI, 136, November, 1886; 53, 443, May, 1892; Card 687, December,

1 But see § 337, ante, and note.

See Wilcox r. Jackson, 13 Peters, 498; U.S. v. Eliason, 16 id., 302; U. S. r. Farden, 99 U. S., 10, 19; Wolsey v. Chapman, 101 id., 755, 769; Hickey v. Huse, 56 Maine, 495; 2 Opins. At. Gen., 67; 13 id., 5; 14 id., 453; 15 id., 290, 463; G. O. 35, W. D.,

1830.

U. S. r. Bk. of Metropolis, 15 Peters, 378; Rollins and Presbrey r. U. S., 23 Ct. Cls. 106, and cases cited; Waddell's Case, 25 id. 323; 9 Opins. Atty. Genl., 32; 12 id. 355; 14 id. 275; 15 id. 192; 16 id. 452; 1 Comp. Dec. 193; 2 id. 264, 401; 4 id. 303; 6 id. 236, 245. In Rollins and Presbrey r. U. S., supra, it was held, quoting from syllabus, that "any public officer in an executive department may correct his own errors and open, reconsider, or reverse any case decided by himself." In delivering the opinion of the court, Chief Justice Richardson said: "It has long been held in the executive departments that when a claim or controversy between the United States and individuals therein pending has once been fully considered, and final action and determination had thereon by any executive officer having jurisdiction of the same, it can not be re-opened, set aside, and a different result ordered by any successor of such officer, except for fraud, manifest error on the face of the proceedings, such as a mathematical miscalculation or newly discovered evidence, presented within a reasonable time and under such circumstances as would be sufficient cause for granting a new trial in a court of law. This ruling and practice of the departments has been approved elsewhere and has been sustained by the courts. (9 Opin. Att'y. Gen., 34; 12 id., 172, 358; 14 id., 387, 456; 14 id., 275; 15 Pet., 401; Lavalette's Case, 1 C. Cls. R., 147; Jackson's Case, 19 id., 504; State of Illinois Case, 20 id., 342; McKee's Case, 12 id., 560; Day's Case 21 id., 264, and the opinion of the

1894. Held that "new evidence," to be available to change a determination upon a claim arrived at by a previous Secretary of War, must be evidence as to its merits. A mere re-argument, upon a subsequent application, with citation of authorities or precedents, is not such "new evidence," or evidence at all, and cannot avail to reverse the original decision. 58, 110, February, 1893. Where an order, fixing the status of an officer on the retired list, was issued by the Secretary of War in the execution of a statute which it was his duty to execute, held that such order was res judicata, and could not be re-opened or set aside by a succeeding Secretary, in the absence of fraud or manifest error on the face of the proceedings. 41, 358, June, 1890.

2296. Held that the Secretary of War was not empowered, without the authority of legislation, to re-open the action taken by one of his predecessors upon the proceedings of a court of inquiry in the case of a former officer of the army who had now been twenty years a civilian. 42, 438, September, 1890.

2297. The Secretary of War is not authorized, without the authority of Congress, to turn over property of his department, in his charge, to another department for its permanent use and disposition. 51,414, January, 1892. See, also, Card 1623, August, 1895. But such transfer may be made with proper debit and credit of appropriations.' Cards 3679, January, 1898; 7840, March, 1900.

2298. It is an established general rule that a head of a department. of the Government will not make public or furnish copies of confidential official reports or papers, the disclosure of which will rather prejudice than promote the public interests. In a case of an officer of the army, who, having been dismissed the service by sentence of court martial, applied to be furnished with copies of, or to be allowed to examine, the report of the Judge-Advocate General and the remarks of the General Commanding the Army, in his case,-advised that the application be not acceded to by the Secretary of War, the same being no part of the record of trial of the officer but confidential communica

Judiciary Committee of the Senate, reported by Senator and Judge David Davis, quoted in Jackson's Case above referred to.) But it has never been doubted that any public officer in the departments may correct his own errors, and open, reconsider, and reverse in whole or in part any case decided by himself." As to reopening final settlements, which have been followed by receipt and acceptance by the claimant of the amount awarded, see § 763, ante, and note.

The act of July 31, 1894 (28 Stats., 208), provides that "any person accepting payment under a settlement by an auditor shall be thereby precluded from obtaining a revision of such settlement as to any items upon which payment is accepted." In view of this statute the accounting officers have no jurisdiction to reopen a settlement, upon newly discovered evidence, as to any item upon which payment of the amount allowed by an auditor has been accepted. 7 Comp. Dec. (decision dated March 15, 1901.)

1 See Pars. 616 and 671, A. R. (698 and 753 of 1901), and 3 Comp. Dec. 602.

tions addressed to the President through the Secretary of War. 42, 452, September, 1890.

2299. Where, by an act of Congress, the President was "authorized to dispose of" certain reserved lands of the United States, but was not in terms required to execute the transfer, held that the execution of the deeds was a ministerial act and that the same might legally be executed by the Secretary of War. 48, 420, August, 1891.

2300. Held that, in the absence of any statutory authority or appropriation for the purpose, the Secretary of War would not be empowered to issue to the sufferers from wind and hail storms in Lafayette Co., Arkansas, any part of the regular supplies purchased for the support of the army under the annual appropriation act, or to allot for the purpose any part of the public funds appropriated thereby.' 60, 473, July, 1893.

2301. Sec. 3 of the River and Harbor Act of August 11, 1888, made it the duty of the Secretary of War to apply the money appropriated by the act "in carrying on the various works by contract or otherwise as may be most economical and advantageous to the Government." Held that he was thus empowered to authorize the engineer officer in charge of the work for the protection of the levees at New Orleans, to hire, without formal contract, a steamboat for transporting material, and for other uses in connection with such work. 40, 95, March, 1890. 2302. Held that, under the general appropriation in the Army Appropriation Act "for the hire of buildings," the Secretary of War was empowered to rent stables for the use of the army; the existing law precluding the renting of stables for the civil establishment not affecting his authority in the matter, and the accounting officers of the Treasury not being warranted in excepting to the wisdom or expedi

Specific authority for similar purposes has been given by Congress in recent cases as by act of March 31, 1890, authorizing the Secretary of War to purchase tents for the use of persons driven from their homes by floods in Arkansas, Mississippi and Louisiana, and appropriating money therefor; and by joint resolution of April 25, 1890, making an appropriation to be expended by the Secretary of War in the purchase and distribution of subsistence stores for persons suffering from floods of the Mississippi River. And see the joint resolution of Dec. 25, 1893, authorizing certain pecuniary relief to be rendered, in the discretion of the Secretary of War, to the Government employees injured by the Ford's Theatre disaster.

But such assistance has in several instances been given without first obtaining authority from Congress, for example, to the sufferers by storm in Georgia and Florida in 1898; to the Seminole Negro Indians at Fort Clark, Texas, and others in that locality, in June 1899, and in August of that year to the sufferers by tornado in Porto Rico; also to sufferers from the Galveston storm in 1900. And see paragraphs 1440, 1444 and 1446, A. R. (1633, 1638 and 1640 of 1901).

With reference to the Georgia and Florida case, supra, see opinion of Acting Attorney General Richards of Oct. 15, 1898, in which it was held that the relief could be extended under the general executive power, there being no statutory prohibition against such an exercise of it.

ency of his orders or acts in the exercise of such authority.1 31, 282, April, 1889.

2303. Where the title to a small portion of the land acquired for a military reservation and post was disputed by a private individual, held that the Secretary of War had no jurisdiction to pass upon and decide such a question. He could not surrender such portion, even if he believed the claim to be sound, any more than he could surrender the entire reservation, to a claimant who could show evidence of an outstanding title in himself. It is not for the executive officers of the Government to determine whether the United States has a good title, or any title at all, to lands placed under their charge as property of the United States. Such questions are for the courts to decide. 62, 442, and 63, 90, December, 1893.

2304. The act of Congress of Aug. 10, 1890, vested in the Secretary of War a simple authority to purchase land for the purposes of the Chickamauga and Chattanooga National Park, without direction or indication as to the terms of such purchase. Deeds were offered by its owners containing two conditions-1, a condition subsequent to the effect that unless certain improvements should be made the grant should become null and void; 2, a proviso that in case the United States should at any future time condemn other land of the grantor, he should then be paid for the same an amount to be measured by the value, determined by appraisement, of the lands conveyed by the present deed-an arrangement which would be equivalent to giving him a claim on the United States for an unliquidated amount. Held 'that such conditional conveyances could not legally be accepted by the Secretary of War, no authority being given him by the statute to bind the Government by conditions or stipulations in regard to the title or purchase. 56, 263, November, 1892.

2305. Held that an officer who had been improperly paid mileage for travel over a land-grant railroad, in contravention of par. 2417 of

It was held by the Court of Claims in Billings . U. S., 23 Ct. Cls., 166, that Sec. 191, Revised Statutes, which declares that the balances stated by the accounting officers "shall be conclusive upon the Executive branch of the Government” did not conclude the Secretary of War in the exercise of his legal discretion as to orders issued to his subordinates; that under that section the decision of the accounting officers was conclusive as to the "balances" stated by the accounting officers and their "decision thereon for the purpose of determining for what amounts, if any, warrants may be drawn on the Treasury; but that when the accounting officers report an officer indebted to the United States, it is a matter wholly within the discretion of the Secretary of War, under Sec. 1766, Revised Statutes, and the Army Regulations "whether to order a stoppage of pay or not." See, also, McKee v. U. S., 12 Ct. Cls., 504; Longwill . U. S., 17 id., 291; Hartson v. U. S. 21 id., 453; 5 Opins. At. Gen. 386. The accounting officers of the Treasury have not the burden cast upon them of revis ing the action, correcting the supposed mistakes or annulling the orders of the heads of departments. U. S. . Jones, 18 Howard, 96; U. S. v. Hahn, 107 U. S. 402; Brown v. U. S., 113 id. 568. See § 198, ante.

the Army Regulations of 1881-in force at the time,-on his having his pay stopped, could not (as ruled by the Court of Claims in the case of Billings . U. S., 23 Ct. Cls. 166) have the question of the legality of the stoppage referred to that court by the Secretary of War under Sec. 1063, Rev. Sts. The Secretary might indeed refer such question to the court for his own guidance and action under the act of March 3, 1883, c. 116, s. 2 (the so-called Bowman Act), but the decision of the Secretary thereupon would not bind the accounting officers who would still be authorized to proceed as provided in Secs. 269 (par. 4) and 1766, Rev. Sts. 42, 200, July, 1890. Where a claim is barred by reason of not having been presented either to the proper department or to the Court of Claims within the six years prescribed by law, the head of that department cannot revive the claim by referring it to the Court of Claims.' 42, 69, July, 1890.

2306. Under Sec. 1076, Rev. Sts., the Secretary of War (or other head of a department) may refuse or omit to comply with a call of the Court of Claims for information or papers when he considers that it would be prejudicial to the public interests to furnish them: the statute makes him the sole judge on the subject. So advised here that a certain affidavit, thus called for, be, on account of the peculiar nature of its contents (as well as its apparent immateriality) withheld. 26, 497, September, 1888.

2307. The Secretary of War is authorized to acquire, by purchase or condemnation, land, right of way, or material, needed to maintain, operate or prosecute works for the improvement of rivers and harbors, when provision for the same has been made by law. Card 301, September, 1894. But he cannot lease land unless appropriation has been made to pay the rental thereof. Card 195, August, 1894. He may permit the use of land under his control by revocable license, or by lease under the act of July 28, 1892. Card 241, August, 1894.

SENTENCE AND PUNISHMENT-IN GENERAL.2

2308. The best approved practice of military courts in determining upon their sentences is believed to be as follows: For each member to write a sentence and deposit it with the judge-advocate; and (no sentence having been adopted by a majority of votes) for the court, after all the sentences have been read to it by the judge-advocate, to proceed to vote upon them in the order of their severity, beginning with

1Dunbar v. U. S., 22 Ct. Cls. 109; Finn v. U. S., 123 U. S. 227.

As to particular punishments, see especially NINETY SIXTH ARTICLE—Discharge— DISMISSAL BY SENTENCE-DISQUALIFICATION-FINE-FORFEITURE BY SENTENCE-IMPRISONMENT-LOSS OF RANK OR FILES-REDUCTION TO THE RANKS REPRIMANDSOLITARY CONFINEMENT-SUSPENSION.