sell; the only tax payable therefor being the retail dealer's tax of $20, imposed by the United States under Sec. 3244, Rev. Sts. L., 71, February, 1886.

2431. Held, that as exclusive jurisdiction had not been ceded by the' State of Nebraska over the military reservation of Sidney Barracks, the State authorities could legally levy a license tax for the selling of beer at the post canteen. L., 153, March, 1886. And similarly held as to the authority of officials of Michigan to tax, under the laws of that State, the selling of liquor at the canteen of Fort Mackinac, a post not under the exclusive jurisdiction of the United States. 36, 161, October, 1889.

2432. Held, that the officer in charge of a canteen, in making sales of cigars, would, though the same were sold to the canteen in the first instance by the Subsistence Department of the Army, be a dealer in manufactured tobacco in the sense of the act of March 3, 1883, and as such liable to pay the government tax of $2.40 per annum, prescribed thereby.1 L., 217, April, 1886.

2433. The Mackinac National Park was established by the act of Congress of March 3, 1875, which also authorized the Secretary of War to grant leases, for building purposes, of certain small parcels of land within the park. Under this authority a number of parcels were leased upon which improvements were made by the lessees, and the State authorities have proceeded to impose taxes upon such improvements. By the act of Congress of June 15, 1836, authorizing the admission of the State, lands of the United States within the State were to be exempted from taxation. But the State has never ceded to the United States exclusive jurisdiction over the lands of this park, and therefore never parted with its authority to tax private property located therein. Held that the improvements referred to were legally taxable as the private property of individuals under the laws of the State. 39, 89, February, 1890.

2434. Under the act of Congress admitting California as a State— act of September 9, 1850, c. 50-and under subsequent statutes enacted by the State Legislature, all land of the United States, and all buildings and improvements belonging to the United States, within that State, are exempted from taxation by the State. LIV, 189, August,

1887.

2435. In ceding to the United States exclusive jurisdiction over a military reservation, the act of the legislature of the State need not

'The "canteen," referred to in this and the two preceding sections, was not the same as the "post exchange" which is maintained under existing regulations (1900). See opinion, Court of Claims, quoted in note to § 2014, ante.

2

See People v. Morrison, 22 Cai., 74.

specifically relinquish the right to tax, as the State independently of any act of cession has no right to tax the means or instrumentalities whereby the government of the United States performs its functions. 64, 330, April, 1894. And this includes and applies to a municipality within the State, as being a part of the State and created by it. So held, that a tax levied by the city of Buffalo, N. Y., on the lands of the Fort Porter military reservation, for non-payment of assessments, or otherwise, was wholly illegal and void. 31, 480, April, 1889. Similarly held, that the city authorities of Highland Park, Illinois, were not empowered to levy on the Fort Sheridan reservation for the improvement of adjacent lands or for other public improvements. 38, 183, January, 1890.

2436. Certain land was conveyed to the United States by the City of St. Paul, Minn., in 1892, for the erection thereon of a quartermaster and commissary depot, an appropriation having been made by Congress for the purpose on condition that the land should be conveyed to the United States free of cost. Held, that the property is an instrumentality of the United States government, and as such is not subject to local taxation of any kind, and therefore not subject to an assessment for street improvements. This principle declared by Chief Justice Marshall in McCulloch . Maryland (4 Wheaton, 315) has been applied in a large number of later cases (25 Am. and Eng. Enc. of Law, 106, et seq.), and can no longer be questioned.' Card 2598, September, 1896. Similarly held, with respect to assessments, under State legislation and municipal ordinance, for the improvement of street and side walks adjacent to the military reservation of Jackson Barracks, Louisiana. Card 2637, September, 1896. And held, that a tax on real estate purchases under the laws of Tennessee would not be operative against the United States as purchaser of lands in that State for the Shiloh National Military Park. Card 3062, April, 1897. Also held that the United States was not liable for an assessment for laying water pipes along the east side of the National Cemetery, Philadelphia,

'The Comptroller of the Treasury, in an opinion dated January 30, 1896 (Vol. II, 375), said: "It is well established law that the property of the United States, or any of the instrumentalities employed by them in the performance of their proper func tions, is not the subject of taxation by the States or any subdivisions thereof. (MeCulloch. Maryland, 4 Wheat., 316; Osborn v. Bank of the United States, 9 Wheat., 738; Weston . Charleston, 2 Pet. 449; Dobbins v. Commissioners, 16 Pet. 435; Bank of Commerce v. New York City, 2 Black, 620; Bank Tax Case, 2 Wall., 200.) Most of these cases related to the taxation of instrumentalities adopted by the United States for the proper execution of the powers vested in the Federal government. The principle has been specifically applied to the taxation of the property of the United States (9 Opin. A. G., 291), has been acquiesced in by the courts of all the States in which the question has arisen (Andrews . Auditor, 28 Grattan, 115; Chicago, etc., Railway Company . City of Davenport, 51 Iowa, 451), and has also been specifically applied to assessments for public works from which specific benefits would be derived (Fagan r. Chicago, 84 Ill., 227).”

Pa. (Card 3930, March, 1898), or for a "consumption tax" levied on sugar purchased in Porto Rico for the use of United States troops. Card 6054, March, 1899. Nor is the post exchange, as a recognized instrumentality of the government of the United States (see note to § 2014, ante), liable for local or municipal taxes or licenses on the sale of commodities for the exclusive use of persons in the military service. Card 7324, November, 1899.

TERRITORY.

2437. The officers and soldiers of the army within a Terr tory are subject to its criminal laws equally with its citizens, except where the enforcement of such laws would obstruct the operations of the United States. 51, 199, January, 1892.

2438. The military should obey the subpoenas of the district courts of Territories, which, under Sec. 1910, Rev. Sts., are vested, in all cases arising under the Constitution and laws of the United States, with the same jurisdiction as the U. S. circuit and district courts. Secs. 877 and 911, Rev. Sts., prescribe as to the form and effect of such subpoenas, and where a subpœna served upon an officer or soldier conforms substantially with these forms, it should be complied with. LIV, 124, July, 1887.

2439. A Territorial statute is operative upon a military reservation within the Territory, so long as it does not conflict with the laws of the United States, or with the military administration or legitimate operations of the Government. Thus, held that a statute of Arizona, making it penal to sell intoxicating liquor to Indians, while it would inhibit a post canteen from selling beer (if intoxicating) to Indians in general, could not legally affect the sale of such beer to Indians who were enlisted soldiers of the United States and therefore within the regulations of the army allowing such sale to soldiers under certain conditions. 48, 464, August, 1891.

TRIAL.

2440. Except by the authority of express statute, an accused can never be entitled to be tried by court martial. Where he is amenable to trial, the Government may cause him to be tried or may waive a trial, at discretion. 65, 259, June, 1894.

See U. S. v. Hurshman (53 Fed. Rep., 543), in which it was held that an Indian of the Nez Perces tribe, a soldier in the United States Army, was an Indian under the charge of an Indian superintendent or agent within the meaning of Sec. 2139, Rev. Sts., which provides that every person who disposes of spirituous liquors to any Indian "under the charge of any Indian superintendent or agent * shall

be punishable

2441. The fact that an accused soldier was tried with hands or feet in shackles, or with ball-and-chain attached, these having been omitted to be removed during the hearing before the court, does not, however reprehensible, affect the legal validity of the proceedings or sentence. L, 33, February, 1886; LIII, 196, October, 1886; LV, 686, July, 1888.

U.

U. S. COMMISSIONER.

2442. Where a U. S. commissioner in Indiana issued to a U. S. marshal a warrant for the arrest of a deserter from the army, and, upon such deserter being brought before him, adjudicated the question of his right to discharge from the military service, and ordered him discharged therefrom--held that the entire proceeding was coram non judice and a gross assumption and exceeding of authority, and advised that the facts of the case be communicated to the Attorney General for his action, and that the deserter be forthwith re-arrested and brought to trial by court martial. 58, 287, March, 1893.

V.

VARIANCE.

2443. A material variance between the name of the accused in the specification and in the sentence should, if possible, be corrected by a re-assembling of the court for a revision of its sentence. If this be rendered impracticable by the exigencies of the service, the sentence should in general be disapproved as fatally defective. Thus held, in a case where the names in the sentence and the specification were entirely different, the one being John Moore and the other James Cunningham (XVII, 601, February, 1866); also in cases in which, while the surnames were the same, the christian names were quite different, one being George and the other William, &c. (IX, 27, 134, May, 1864); also in a case where the name in the sentence, though similar to that in the specification was not idem sonans, as where the accused was arraigned upon charges in which he was designated as Woodworth, but was sentenced under the name of Woodman. II, 555,

June, 1863. A difference, however, in a middle initial is not a material variance, a middle name not being an essential part of the christian name in law. XIII, 481, March, 1865; Card 9066, October, 1900.

VOLUNTEERS.

2444. The volunteer force during the civil war was not a part of the militia, but of the army of the United States. Though assimilated to the militia in some respects, as, for example, in the mode of original appointment of regimental and company officers, it was as distinct in law from the militia, as was the so-called "regular" contingent of the army.2 Volunteer officers, once mustered into the service of the United States, and while they remained in that service, did not differ substantially from regular officers in their status, rights, or otherwise. Their tenure of office was indeed briefer: this, however, was not a material legal distinction, since the term of regular officers was also in some cases limited by statute to a definite period as the duration of the existing war. XXXIV, 459, September, 1873.

2445. In a case of a volunteer officer unjustly dismissed by sentence or order during the civil war, and applying for restoration, there is the obstacle (not encountered in a case of a regular officer) that the volunteer contingent of the army has been long since disbanded, so that a restoration to office in the same is impracticable. And as a dismissed officer cannot of course be granted an honorable discharge from the army without first being readmitted to the army by a new appointment, and a volunteer officer cannot as such be so readmitted, advised, in a case of a volunteer officer applying for relief on account of an unjust dismissal, that the form of relief most apposite to his case would be a special enactment giving him pay from the date of his dismissal-reciting that the same was based upon insufficient grounds— to the date of the final muster-out of his regiment, precisely as if he had continued regularly in the service during the interval. XLIII, 235, February, 1880.

2446. Officers of volunteers, or officers holding office in the army of a limited tenure, who, without change of rank, were incorporated into

'That the law "recognizes but one christian name," and that the insertion or omission of a middle initial or initials "will have no effect in rendering any proceeding defective in point of law," see 2 Opins. At. Gen., 332; 3 id. 467; also Franklin v. Tallmadge, 5 Johns., 84; Roosevelt r. Gardinier, 2 Cow., 463; State v. Webster, 30 Ark., 168.

*As illustrating the distinction made in Sec. 8, Art. I, of the Constitution, between the army and militia, and indicating the status of the volunteers, during the civil war, as a part of the former, see Kerr r. Jones, 19 Ind., 351; Wantlan v. White, id. 471; In the matter of Kimball, 9 Law Rep., 503; Burroughs v. Peyton, 16 Grat.,