2323. A legal sentence of court martial, when once duly approved and executed, cannot be reached by a pardon, nor revoked, recalled, modified or replaced by a milder punishment or other proceeding, either by the Executive or by Congress. The only remedy for a party who has suffered injustice from such a sentence is either a new appointment to the army by the President or some legislation within the province of Congress relieving or indemnifying him for and on account thereof. XLI, 538, April, 1879; XLII, 320, June, 1879; LIII, 143, October, 1886; Cards 4494, June, 1898; 6590, June, 1899. 2 2324. Where a sentence in excess of the legal limit is divisible, such part as is legal may be approved and executed. Thus where a sentence of an inferior court imposes a fine or forfeiture beyond the limit of the 83d Article of War, the sentence may be approved and executed as to so much as is within the limit. 55, 349, September, 1892; 59, 27, April, 1893; Card 439, October, 1894. 3 2325. The rule prescribed in pars. 1025 and 1032, A. R. (944 and 951 of 1895). to the effect that confinement and forfeiture, when the sentence is silent as to the time of their taking effect, shall be operative from the date of the promulgation of the sentence in orders, is an exception to the general rule that orders affecting the status or rights. of officers or soldiers shall take effect from notice. But where a sentence of dismissal of a cadet of the Military Academy was on October 31, 1893, commuted to suspension from the academy without pay until Aug. 28, 1894, held that the general rule, in the absence of any specific exception of such a case by the Army Regulations, applied, and that the sentence as commuted took effect upon and from notice, the forfeiture commencing to run from its date. 64, 280, April, 1894. 2326. The suspension of the sentence of a court martial before or pending its execution is a procedure without precedent in our military service. Card 8838, August, 1900. SENTINEL. 2327. Respect for the person and office of a sentinel is as strictly enjoined by military law as that required to be paid to an officer. As it is expressed in the Army Regulations "all persons of whatever rank in the service are required to observe respect toward sentinels.” Invested, as the private soldier frequently is while on his post, with a grave responsibility, it is proper that he should be fully protected in 'The well established principles, that mere irregularities in the proceedings will not affect the validity of an executed sentence, and that a legal sentence once duly confirmed and executed is "no longer subject to review by the President," so pointedly set forth (in 1843) in 4 Opins. 274, are further illustrated in 15 id. 290, 432. * See § 1199, 1200, 1394, 1869, 2041, and 2235, ante. See Circ. No. 12, A. G. O. 1892. 'Paragraphs 1045 and 1052 of 1901. the discharge of his duty. To permit any one, of whatever rank, to molest or interfere with him while thus employed, without becoming liable to a severe penalty, would obviously establish a precedent highly prejudicial to the interests of the service. So where, in time of war, a lieutenant ordered a soldier of his regiment, who had been placed on duty as a sentry by superior authority, to feed and take care of his horse, and, upon the latter respectfully declining to leave his post for the purpose, assailed him with abusive language-held that a sentence of dismissal imposed by a court martial upon such officer, on his conviction of this offence, was fully justified by the requirements of military discipline. XVIII, 598, February, 1866. SOLDIERS' HOME. 2328. Sec. 4824, Rev. Sts., subjecting the inmates of the Soldiers' Home to the Rules and Articles of War, is unconstitutional and a dead letter. These inmates are no part of the army, nor are they supported by the United States. They are civilians occupying dwellings and sustained by funds held in trust for them. The territory of the home being within the District of Columbia, and not having been exempted by Congress from the operation of the criminal laws of the District, the inmates are subject to those laws like any other residents. 55, 406, September, 1892. 1 2329. An inmate is not required to remain at the home if he wishes to leave it. The privileges of the institution may be renounced by any act showing an intention to renounce them-such as direct notice of such intention, or by absenting himself with the evident purpose of not returning. In February, 1864, a certain inmate was transferred from the home to the Government Insane Hospital, and was discharged thence as sane in June, 1864. He did not return to the home and was not again heard of till March, 1886, when it was ascertained that he was at the State Insane Hospital of Pennsylvania. As he was sane when he left the government hospital and did not return to the home. within a reasonable time, but remained absent nearly twenty-two years. held that he must be deemed, in the absence of contrary evidence, to have intended to permanently separate himself from the institution, and that he therefore was not now an inmate or member of the same. L, 167, April, 1886. 2330. Contracts for the home should be entered into, not by the "Soldiers' Home," which is not an incorporated institution, but by the Board of Commissioners, who, as representing the United States in the management of the home, may authorize contracts which will bind the United States. 58, 137, February, 1893. 1 Compare opinion of Atty. Gen. in 20 Opins. 514. 2331. The funds for the support of the Soldiers' Home are not of the class of public moneys annually appropriated for a specific object, as for the pay of the army, but a special trust fund committed to and administered by the Board of Commissioners for the benefit of the institution. From an early period in the history of the home it has been the usage for the commissioners to permit the officers of the home (retired officers of the army residing thereat), gratuitously to receive and use a reasonable portion of the ordinary supplies of fuel, light, forage, milk, ice and vegetables, either produced at the home or obtained for its consumption. Held that such allowance was not in contravention of law; that the articles thus issued are not of the class of military pay and emoluments, and therefore unauthorized because not allowed by law to retired officers, but are a reasonable share of the supplies for the use and benefit of the home, the disposition of which is properly within the discretion of the commissioners as charged by law with the "government and interests" of the home. And similarly held in regard to the amount of $1,000, allowed annually out of such funds to the treasurer of the home, as a compensation for his special services and in consideration of his pecuniary responsibility as a bonded officer.' 51, 296, January, 1892. 2332. Held that a medical officer of the army, occupying quarters at the Soldiers' Home, was not thereby precluded from receiving commutation of quarters at New York, on being ordered to duty there ast a member of a medical examining board. The quarters occupied by him at the home are not "public quarters" in the sense of par. 1480, A. R.: he does not occupy them at the expense of the United States; and by allowing him the commutation, the Government is not put to a double expense for his quarters. 56, 174, October, 1892. 2333. Sec. 4818, Rev. Sts., appropriates as one of the funds for the support of the Soldiers' Home-"all forfeitures on account of desertion". Held that this appropriation included the retained pay of soldiers, as forfeited by desertion under the provisions of Secs. 1281 and 1282, Rev. Sts., and of the act of June 16, 1890, c. 426, s. 1. The retained pay is merely a fraction of the monthly pay of the soldier, earned with the rest of his monthly pay, as a part of the entire consideration for service rendered, but of which the payment-the right to receiveis deferred. The theory that it is not to be regarded as earned till the soldier's service is concluded and he receives an honorable discharge, is rebutted by the statutory provisions above cited, and especially by the provision of the act of 1890, which treats the retained pay as pay constantly accruing and as a continuing deposit for the use of the sol 1 See opinion of Attorney General to same effect, in 20 Opins. 350. -42 dier drawing interest from the end of each year in which it accrues. The ruling of the Supreme Court in U. S. v. Landers (92 U. S. 77) is not opposed to this view, but, as construed by the same court in U. S. v. Kingsley (138 U. S. 87) shows that the "forfeiture" referred to in Secs. 1281 and 1282, Rev. Sts., was regarded by the court as meaning a loss of an acquired right. And the act of 1890, passed since this ruling, has confirmed this interpretation. Thus a soldier, in deserting, forfeits, with the main portion of his pay, the portion which has been retained, his right to this lesser portion being as much acquired and perfected as his right to the greater portion. Both forfeitures rest upon the same basis, and the aggregate forfeiture of both is appropriated by the statute to the support of the Soldiers' Home. 60, 13, June, 1893; 61, 486, October, 1893. 2334. A stoppage of twelve dollars was made against a soldier on account of the loss of a revolver. Subsequently he was tried for pawning the revolver and for desertion, and sentenced to dishonorable discharge, forfeiture of all pay and allowances and confinement for three years. Later the revolver was recovered. Held, that the stoppage should be removed but that it would go to the Soldiers' Home as a forfeiture under the sentence and could not therefore be returned to the man. Card 1500, July, 1895. 2335. There is no law expressly relating to the subject but the Secretary of War in the exercise of his general power over the movements of members of the army, may order a hospital attendant, an enlisted man, to accompany an invalid discharged soldier to the Soldiers' Home. Card 2592, September, 1896. 2336. Section 4745, Revised Statutes, should not be construed as prohibiting the practice by which transportation to the Soldiers' Home is furnished by it to a needy discharged soldier, with the understanding that the home will repay itself out of his pension when collected. This is not a pledge, etc., of his pension by a discharged soldier within the meaning of Sec. 4745, but a repayment by a governmental agency to itself out of money belonging to him and placed in his hands by law, of money advanced by it to him solely for his interest. Card 5922, February, 1899. 2337. The law of the United States for the District of Columbia is to the effect that where a person dies intestate, leaving an estate in the District and there is no relation of the intestate within the fifth degree, the estate shall belong to the United States. Under this law, whenever an inmate has died in the Soldiers' Home, at Washington, D. C., leaving money in bank in that city, or other moneys or personal effects, in the District, the same become the property of the United States; and all such property and effects other than money ury, 營 * should (by the proper proceedings in court) be converted into money, and then this, together with the money left by the soldier in bank or elsewhere in the District, should be turned into the United States Treasury by order of court, as money of estates escheated to the United States. Section 3689 of the United States Revised Statutes appropriates for the Soldiers' Home "out of any moneys in the Treasall moneys belonging to the estates of deceased soldiers". After, therefore, the moneys and the proceeds of the other effects of inmates of the home, have been paid by order of court into the United States Treasury as moneys of escheated estates, the Soldiers' Home is entitled to receive the same from the Treasury. The home is not however entitled to it until it shall have gone into the Treasury so that section 3689 can apply to and appropriate it to the use of the home. It is not the duty and probably not within the power of the Soldiers' Home to move in the matter of enforeing the law with regard to the moneys or property of any estate, whether the decedents were inmates of the home or not. But as it is the duty of the Attorney General of the United States (through the United States attorney of this district) to look after and collect all moneys and property the United States is entitled to under the law, whether the decedents are inmates of the home or whether they are civilians who reside elsewhere in the District, Advised that he be informed by the proper officials of the home of the death of all inmates who leave any money or property in the district and the whereabouts of the same, which it may be in his power to collect and turn into the Treasury as above indicated. Money so turned in should be obtained by the home by direct application to the Treasury for the Card 3493, September, 1897. same. 2338. On the questions, (1), whether the Board of Commissioners of the Soldiers' Home has authority to establish a branch home; (2), whether the Secretary of War has legal authority to grant to the Soldiers' Home the right to locate a branch of the home on a military reservation and to occupy buildings erected for the military establishment; and (3), whether, if such right were granted, the board of commissioners would have authority to expend funds of the Soldiers' Home in keeping such buildings in repair-held, first, that it was the intention of the original legislation relating to the Soldiers' Home to establish it at one or more places, and no subsequent legislation has interfered with this, except as to one locality, and that under the legislation as it now stands it would not be illegal to establish a branch; second, that the Secretary of War has no authority independently of congress to grant away any interests in buildings erected on military reservations, but that he may do so under legislation of July 28, 1892 |