ings" should have the effect of restoring" the party "to his rank with the promotion to which he would be entitled if it be found that he was wrongfully dismissed, or to confirm his dismissal if it be otherwise found." Under this act the Secretary of War ordered a court of inquiry which found that the officer had been "wrongfully dismissed," and declared the dismissal to be a nullity. The act and record of the court having been referred by the Secretary of War to the Judge-Advocate General for opinion as to the executive action proper to be taken, if any,-held that the only manner in which a dismissed officer, or other civilian, could be admitted to the army was by an appointment made pursuant to the provisions of Art. II, Sec. 2, par. 2, of the Constitution; that Congress was not empowered to appoint a civilian as an officer of the army, or to authorize a military court to make such an appointment;' that the act in authorizing the restoration of the officer by and upon the favorable finding of the court, was clearly unconstitutional and inoperative; further that no implied authority for an appointment of the officer by the President could properly be gathered from the act. And added that the principle of that extreme instance of a liberal construction of a statute in favor of the exercise of the appointing power, presented in the opinion of the Attorney General in the case of Lieut. Von Luettwitz (14 Opinions, 448), could not be extended to the present case, since by this act the function of the executive department was in terms confined to the ordering of the court; the authority to appoint, so far as any was conferred, being expressly reserved by Congress to itself, or rather to the court. XLII, 297, May, 1879.

STOPPAGE.

2374. The pay of an officer or soldier cannot be subjected to stoppage except by the authority of a statute or regulation specifically authorizing the same or of a sentence of court martial imposing a forfeiture or fine as a punishment, or where the party has become indebted to the United States on account. XXXIII, 445, October, 1872. The Attorney General has also held (21 Opins., 465) that "stoppage of pay against a soldier is unauthorized unless it is made in execution of the sentence of a court martial, or in pursuance of a statute, or in

1

A military court, being no part of the U. S. judiciary (see § 992, ante), is of course not included in the "courts of law" to which a power of appointment of "inferior" officers is authorized to be given by Art. II, Sec. 2, par. 2, of the Constitution. Moreover this power, as interpreted by the authorities, properly extends only to the appointment, by the U. S. Courts, of their own inferior officers, such as clerks, reporters, or bailiffs. See 4 Opins. At. Gen. 164; 11 id. 213; Ex parte Hennen, 13 Peters, 258; Story's Com. on the Const. § 1536.

2 This conclusion, however, was not accepted, and the appointment was made and confirmed.

conformity to the regulations of the army which have the force of law." The power of the Secretary of War over the subject of stoppage of pay is too narrowly restricted in the opinions above quoted. It is not possible to foresee, and by regulations to provide for, all cases which may arise within the army in which it would be reasonable and proper that the pay of a soldier should be stopped in order to cover some liability which he has incurred; and on the happening of any such case it would be reasonable and proper that the Secretary of War, representing the constitutional power of the President over the army, should exercise the same power with reference to such case, which would be exercised in the making of a general regulation relating to stoppages. The result would simply be the satisfaction of a pecuniary obligation to the United States, which the soldier had incurred in his military relation, but which it had not been practicable to provide for in advance by a regulation. The practice of the War Department is believed to be in accord with this view. 61, 169, August, 1893.

2375. The United States is not authorized to stop against the pay of an officer or soldier an amount of personal indebtedness to another officer or soldier, though such indebtedness may have grown out of the relations of the military service. Thus, in the absence of a sentence of court martial forfeiting the same, an officer's pay cannot legally be stopped with a view to the reimbursement of enlisted men who have deposited with him money for safe keeping, which he has failed to return when required, the officer being accountable for the same in a personal capacity only. XII, 510, August, 1865; XVI, 637, October, 1865.

2376. Held, that for a liability incurred during one enlistment, a soldier may under the provisions of Sec. 1766, Rev. Sts., legally be subjected to a stoppage against the pay due him under a subsequent enlistment. Card 3167, May, 1897; 6500, May, 1899; 7395, December,

1899.

2377. A stoppage differs from a fine or forfeiture, in that the latter is imposed as punishment for an offence while the former is a means of reimbursement or a "charge on account" to make good a loss. A stoppage cannot therefore, in the absence of a statute or regulation authorizing it, legally be imposed as a punishment for an offence. 36, 87, October, 1889. But it is entirely legal to stop against a soldier's pay, under the Army Regulations, an amount required to reimburse the United States for loss on account of damage done to public property, while at the same time bringing the soldier to trial by court martial for the offence involved. 62, 481, December, 1893.

2378. Held that the Government was entitled to retain so much of a

soldier's pay as would cover his indebtedness to it, even though the pay due consist in whole or in part of "detained" pay.' 62, 196, December, 1893.

2379. A soldier, who deserted from Jefferson Barracks, surrendered at Chicago, where the sum of four dollars was expended by the United States for his meals while in jail. Held that this sum, as substantially included within the item of "expense of apprehending deserter,” specified in par. 1523, A. R. (1889), was properly charged against him on the muster-and-pay roll. 60, 167, June, 1893. 2380. The amount of the allowances of the witnesses, or other expense attending the trial by court martial of a soldier, cannot legally be stopped against his pay, whatever the offence of which he may be convicted. 64, 301, April, 1894.

2

2381. Pay due an officer or soldier cannot legally be stopped to reimburse a telegraph company for moneys received by a sergeant of the then Signal Corps for transmitting private messages over its line, the same not being a line "operated by the United States," in the sense of the act of March 3, 1883, c. 143, and the indebtedness of the sergeant being to the telegraph company only, not to the United States. 61, 185, August, 1893. An officer or soldier cannot legally be mulcted of any part of his pay for the satisfaction of a private claim. 33, 171, June, 1889; Cards 5446, December, 1898; 8365, June, 1900.

2382. Held that, under Sec. 1766, Rev. Sts., an amount of fees illegally received by a retired officer of the army while acting in the capacity of a U. S. consul (a bonded officer) in a foreign country, could legally be stopped against his army pay; the liability to the United States referred to in the section including a civil equally with a military liability. 50, 1, October, 1891; Card 5356, November, 1898. 2383. The Army Appropriation Act of June 16, 1892, provides that "the pay of officers of the army may be withheld under Sec. 1766, Rev. Sts., on account of an indebtedness to the United States admitted or shown by the judgment of a court, but not otherwise, unless upon a special order issued according to the direction of the Secretary of War." Held that the last part of this provision was to be construed not separately but in connection with the former, and could not be interpreted as empowering the Secretary of War to stop the pay of officers of the army to satisfy private debts or claim for alimony. 64, 154, March, 1894; Cards 3500, September, 1897; 6882, August, 1899; 7635, February, 1900.

2384. Ield, that pay due an officer or soldier may legally be stopped

The punishment of detaining pay was abrogated by G. O. 25 of 1894.

2 See Circ. 19, A. G. O., 1893.

3 See Gratiot v. U. S., 15 Peters, 336; McKnight r. U. S., 98 U. S. 180.

to reimburse losses to post exchange, company, hospital, bakery, etc., funds; all these funds being used to carry on public agencies or instrumentalities of the Government.' Card 3171, October, 1897.

2385. A recruit absented himself from a detachment of recruits at a place in Ohio, while en route from the recruiting depot to his proper station, Fort Yates, N. D., and was taken to Fort Niagara and tried upon a charge of desertion but convicted of absence-without-leave only. Held that the only stoppages to which he could legally be subjected were the amount of the pay and allowances accruing during his absence, under par. 132. A. R. (see 144 of 1901), and the amount of the expenses incurred in transporting him "to his proper station," under par. 124, A. R., as amended by G. O. 14 of 1890 (see 137 of 1901). But held further that the words "to his proper station," in the last part of the amended regulation, were to be construed as equivalent to the expression, in the first part-to the station of his company or to the place of his trial"; that it would not be legal to stop against him the expenses of the transportation to both places; that if the place of trial was as here-different from the station of the company, it would be proper to stop the expenses of transportation to the former and not to the latter; and that, this being done, the stoppage of the expense of transporting him to the station of his company, after the trial, would not be authorized. 64, 301, April, 1894.

2386. A civilian, then at Pittsfield, Mass., was duly employed, by the engineer officer in charge of a River Improvement, as an assistant at a compensation of $150 per month, and ordered to report at Montgomery, Alabama. In subsequently settling with him for his services, the officer allowed and paid him, in addition to his salary, the amount of his expenses of travel between Massachusetts and Alabama. Held that such allowance was unauthorized as being in excess of the contract, which stipulated only for the payment of the salary named, and was therefore legally stopped by the accounting officers against the engineer officer's pay. 43, 182, October, 1890.

2387. Sec. 1766, Rev. Sts., which prescribes that "no money shall be paid to any person for his compensation who is in arrears to the United States, until he has accounted for and paid into the Treasury all sums for which he may be liable", has not in practice been so strictly construed as to preclude the making of stoppages against the pay of officers and enlisted men in such monthly amounts as to leave a margin for necessary living expenses. Thus where the stoppage against an enlisted man was $100, advised that it be collected at the rate of ten dollars per month. Card 7415, December, 1899.

1 See § 1424, and note to § 2014, ante.

16906-01-43

SUBSISTENCE STORES.

2388. Where subsistence stores were sold by a post commissary of subsistence to a mess of three officers of the post, and charged to the mess as such, held that such mess was not in the nature of a commercial partnership in which each member was bound for the joint indebtedness, but was simply an association, for purposes of convenience and economy, of three individuals, each of whom was bound to the United States only for his proportion-one third of the account. And held that a member who had paid his proportion to one of the other members who acted as caterer but who had deceased without paying over this amount to the commissary, remained liable for such proportion to the United States. XLI, 155, March, 1878.

2389. Held that the "ten per cent," directed by the Army Appropriation Act of June 23, 1879,' to be added to accounts for subsistence stores "sold to officers and men" of the army, could not legally be added to the cost of the subsistence stores furnished for the prisoners at the Leavenworth Military Prison; such prisoners not being embraced in the class referred to in said act, but being provided for by a separate and distinct appropriation for the support of the prison, contained in the act of March 3, 1879, c. 182, and which is unaccompanied by any such requirement. XLI, 651, August, 1879.

2390. Held that the ten per cent. required by the act of June 23, 1879, to be added to the cost of subsistence stores sold to officers and soldiers, "to cover wastage, transportation, and other incidental charges," was to be added in every instance of such sale, whether or not there had been any wastage, &c., in the case of the particular article or articles sold; the "charges" intended to be covered being understood to be charges incurred in connection with the stores sold or kept for sale as a whole. XLII, 100, December, 1879.

2391. Held that the provision of the act of June 23, 1879, in regard to the adding of ten per cent. to the cost of subsistence stores sold to officers and soldiers, was to be viewed as qualifying the provisions of Secs. 1144 and 1145, Rev. Sts., and thus as applying only to stores sold by the United States, through the Subsistence Department. So held that it did not apply to sales made directly to officers and soldiers by contractors under contracts expressly stipulating for such sales to be made by them. XLIII, 100, December, 1879.

2392. On the question whether the Secretary of War has legal authority to issue a regulation authorizing the sale of quartermaster's and subsistence supplies to civilians at remote posts who are employed

1This provision, also in Army Appropriation Act of May 4, 1880, was repealed by the act July 5, 1884 (23 Stats., 108).