1244. Held that a "hostler" at an arsenal is neither a "laborer" nor a "mechanic" within the meaning of the eight hour act of 1892. Card 3673, November, 1897. Similarly held with respect to lock employes on river locks. Card 4814, August, 1898.

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1245. It is not the duty of the Secretary of War to institute proceedings for violations of the act of 1892. Parties who think the law is being violated by contractors should submit their complaints to the proper United States attorney. Card 7323, November, 1899.

EMINENT DOMAIN.

1246. Where money appropriated for the purchase of land for the erection of monuments, &c., was not sufficient to accomplish the entire purpose set out in the statute, held that, in obedience to the spirit of Sec. 3733, Rev. Sts., no step should be taken toward acquiring or condemning lands, until further appropriations were made. 37, 203, December, 1889.

1247. Held that there was no general act of Congress making State courts an agency of the United States for the purpose of condemning lands; and that proceedings for this purpose should be had in a U. S. court under an act of Congress, or in a State court when such court has been by such act made an agency for the purpose. 38, 271, February, 1890.

ENGINEER CORPS OR OFFICER.

1248. There is no legal objection to the detailing of a sergeant of one of the companies of the Battalion of Engineers to act as first sergeant of the company; but of course such acting first sergeant can receive no more or other pay than that of sergeant. 62, 126, October, 1893.

1249. Under sec. 20 of the act of March 1, 1893, "to create the California Debris Commission," &c., the Secretary of War is clearly authorized to assign an engineer officer to duty under the orders of the Commission. 61, 133, August, 1893.

1250. As to the disposition, by the Corps of Engineers, of charts of the northwestern lakes-held that, under Sec. 226, Rev. Sts., as amended by the appropriation acts for the naval service of May 4, 1878, and Feb. 14, 1879, all charts hereafter furnished to mariners are to be paid for at the cost price of the paper and printing as paid by the Government. 38, 210, 477, January and February, 1890.

1See 20 Opins. At. Gen., 459, 463, and A. R. 728 (812 of 1901).

ENLISTMENT.

1251. While the taking of the oath prescribed by the 2d Article of War is not essential to the validity of an enlistment, it is an almost invariable part of a regular formal enlistment, and, in the absence of any provision in our law prescribing what shall constitute an enlistment, the oath as taken and subscribed by the party is the regular and, in some cases, the only, legal written evidence that the personal act of enlisting has been completed by him.1 XXX, 313, May, 1870; XLII, 203, March, 1879; Card 4631, July, 1898.

1252. Due enlistment and the receipt of pay are placed upon the same footing by the 47th Article of War. Held therefore that receipt of pay from the United States, as a soldier, estops the party from denying the status which he has thus openly assumed, when sought to be made amenable as a deserter. VII, 132, February, 1865. A party who has voluntarily rendered service as an enlisted man and as such has been armed, clothed, and fed by the Government is estopped from denying the validity of his contract of enlistment upon the ground of informality therein, and is entitled to pay for the period of such service. XIX, 397, January, 1866.

1253. The allegation in a specification to the charge of desertion, that the accused was "duly enlisted," held established by evidence of his identification as a member of his company, or of facts that show an acquiescence on his part in the status of a so.dier, such as the receipt of pay, doing of military duty, etc. XII, 361, February, 1865.

1254. A soldier deserted in December, 1863, was subsequently dishonorably discharged and confined for the desertion by sentence of a court-martial, but, pending the confinement, was pardoned by the President "on condition of returning and faithfully serving out his time in his regiment." He complied with this condition and was honorably discharged. Held that his returning to his regiment and entering upon duty as a soldier pursuant to his agreement with the President, constituted an enlistment for the period agreed upon. 65, 224, June, 1894.

1Our law not defining enlistment nor designating what proceeding or proceedings shall or may constitute an enlisting, it may be said in general that any act or acts which indicate an undertaking, on the part of a person legally competent to do so, to render military service to the United States for the term required by the existing law, and an acceptance of such service on the part of the Government, may ordinarily be regarded as legal evidence of a contract of enlistment between the parties, and as equivalent to a formal written agreement where no such agreement has been had. "On a charge of desertion or other offence against military discipline, it will be sufficient to prove that the accused received the pay or did the duties of a soldier without other proof of his enlistment on oath." 3 Greenleat Evidence, § 483. And see Lebanon v. Heath, 47 N. Hamp., 359; Ec parte Anderson, 16 Iowa, 599.

1255. A soldier deserted from a volunteer regiment in 1862; was tried for the desertion, and dishonorably discharged in 1864. In February, 1865, he was arrested and illegally tried again for the same desertion, and sentenced to be assigned to duty with certain forfeitures and to make good time lost by the desertion. He was thereupon assigned to a company on April 12, 1865, and was honorably discharged on August 11th, following. Held that his acquiescing in the assignment and serving under it amounted to a constructive enlistment, making his status that of a soldier during the period of such service. Card 4965, September, 1898.

1256. A private in a volunteer company was in 1864 appointed captain in another regiment. He accepted and entered upon the office. Subsequently an order was issued purporting to revoke the appointment and directing his return to his original company as a private. He complied with the order. Held that while this order was in fact void he, by complying with it, abandoned the office of captain, and, by performing services as a private which were accepted and paid for by the Government, constructively enlisted again. Card 2293, June, 1896. 1257. A non-compliance with an army regulation in making an enlistment does not per se affect the validity of the contract. Thus the fact that a married man was enlisted in derogation of the regulations or procured his enlistment by representing that he was unmarried, held not to affect the validity of the enlistment.' XXXII, 72, October, 1871; XXXVIII, 616, June, 1877; XXXIX, 467, February, 1878.

1258. Secs. 1116-1118, Rev. Sts., so far as they relate particularly to the enlistment of deserters, convicted felons and persons over age, have not been regarded by the War Department as making such enlistments void, but as rendering them voidable merely at the option of the Government. It has been uniformly held that a deserter who

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"If a man at the time of his enlistment denies that he is a married man and enlists as a single man, the fact that he has a wife and child does not entitle him to be discharged on habeas corpus, although it is provided in the Army Regulations that no married man shall be enlisted without special authority from the AdjutantGeneral's Office." Ex parte Schmeid, 1 Dillon, 587 (1871-No. 12,461, Federal Cases). See similar ruling in Ferren's case, 3 Benedict, 442 (1869-No. 4,746, Federal Cases).

2 Sections 1116-1118, Revised Statutes, forbid the enlistment of deserters, convicted felons, insane and intoxicated persons, persons over 35 years of age, minors under 16 years of age, and minors over 16 without the written consent of their parents or guardians. The Supreme Court held (In re Grimley, 137 U. S., 147, 153) that the enlistment of a person over 35 years of age was not void, but voidable at the option of the Government only. In delivering the opinion of the Court, Mr Justice Brewer, excepting insanity, idiocy, infancy, or other causes which disable a party from changing his status, remarked with reference to the disqualifications of over age, desertion, and conviction of felony: "These are matters which do not inhere in the substance of the contract, do not prevent the change of status, do not render the new relations assumed absolutely void." The enlistment of a minor over 16 years of age without the written consent of the parent or guardian is not void but voidable only.

enlists and afterwards again deserts can not on being brought to trial for the second desertion properly set up that he is not amenable to trial on the ground that his enlistment was void. A plea or defence to this effect should not be sustained by the court. XLIII, 167, January, 1880; 42, 82, July, 1890.

1259. Held, in regard to the enlistment, in violation of Sec. 1118, Rev. Sts., of persons who had been convicted of felonies, that such enlistments were not void but voidable by the United States only. 48, 367, August, 1891; Card 9490, December, 1900.

1260. A soldier on trial for desertion from the army pleaded in bar of trial that as he was a deserter from the marine corps at the time of his enlistment, it was void. Held that the court properly overruled the plea. While the enlistment in the army was fraudulent, it was not void, but voidable at the option of the Government only, which might hold him to the existing obligations of either or both enlistments. Fraud gives only the defrauded party the option of disaffirming the contract, but until so disaffirmed it remains good.1 XLVIII, 203, December, 1883; LV, 479, 482, April, 1888.

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1261. There is no law or regulation affecting the validity of an enlistment made on Sunday. XXXIII, 562, December, 1872; Card 2619, September, 1896.

1262. The engagement alike of officers and soldiers when entering the Army has always been held to recognize, and to be subject to, the right of the Government to change by law their pay and allowances in its discretion as the public interests may require. Held therefore that a contract of enlistment was not violated by the United States by the reduction by act of Congress, pending his enlistment, of the pay In re Morrissey, 137 U. S., 157. It is not voidable at the instance of the minor (id.); but is voidable by the United States or by the parent or guardian. Id.; In re Wall., 8 Fed. Rep., 85; In re Davison, 21 id., 618; In re Hearn, 32 id., 141; In re Cosenow, 37 id., 668; In re Dohrendorf, 40 id., 148; In re Spencer, id., 149; In re Lawler, id., 233; In re Dowd, 90 id., 718; McConologue's Case, 107 Mass., 170. As the enlistment of such a minor is not void but voidable only, he is, until the enlistment is duly avoided, legally a soldier and can desert or commit any other military offence; and when held for trial or punishment therefor, the interests of the public in the administration of justice are paramount to the right of the parent or guardian, and require that the soldier shall abide the consequences of his offence before the right to his discharge is passed upon. In re Cosenow, 37 Fed. Rep., 668; In re Kaufman, 41 id., 876; In re Dowd, 90 id., 718; McConologue's Case, 107 Mass., 170. See, also, General Orders, No. 127, A. G. O., 1900, and other authorities cited therein. In re Lawler, 40 Fed. Rep., 233, it was held that the enlistment of a minor under 16 years of age would be void, with or without the consent of the parent; but this is not thought to be the correct view. The statute probably renders the enlistment voidable at the instance of the minor, as well as at the instance of the parent or guardian where the enlistment was without his consent, but if the minor has capacity to enter into the status of a soldier, and while in that status commits a military offence, he should abide the consequences of the offence before being discharged.

1 Bigelow, Law of Fraud, 121.

2 The same is held in the English case of Wolton v. Gavin, 16 Q. B., 48.

of a soldier from sixteen to thirteen dollars per month.1 XXXIV, 442, September, 1873.

1263. Held that the enlistment of certain volunteer soldiers in 1862 "for three years or during the war" meant three years from the date of muster, if the war should last that long, and if it should not, then until it should end; that the reference to the duration of the war was a restriction and not an extension of the term. XLII, 524, March, 1880; Card 6312, April, 1899.

1264. The enlistment of a minor without the consent of his parent or guardian is not void, but voidable; until avoided it is valid.3 XLIX, 353, 376, October, 1885; L, 139-143, March, 1886. It is well established that when a minor enlists without consent he remains sub

ject to the Articles of War, until discharged by proper authority. XLIX, 353, 376, supra; Card 2870, January, 1897.

1265. The Army Regulation requiring consent of parent or guardian applies to an Indian minor enlisting in the army. But an Indian agent is not, as such, the guardian of an indian minor under his charge within the meaning of the Regulation. Card 184, August, 1894.

1266. It is not practicable to prescribe what misconduct shall constitute a failure to render honest and faithful service within the meaning of the act of Congress approved August 1, 1894, regulating enlistments. Each case should be decided upon its own merits. Card 2158, March, 1896. It is a matter entrusted to the discretion of the Secretary of War. The restriction imposed upon him by the proviso in sec. 1, of the act of June 16, 1890, being limited solely to the purposes of that act, does not apply to the act of 1894. Cards 2004, January, 1896; 2121, March, 1896; 3794, January, 1898; 5569, December, 1898.

1267. Where a soldier has been discharged without honor upon the ground that his service was not honest and faithful, held that while the discharge could not be revoked, the Secretary of War could upon an application to enlist reconsider the question of the character of the

"The Executive department has discretionary authority to discharge before the term of service has expired (4th A. W.), but has no power to vary the contract of enlistment." 4 Opins. At. Gen., 538. (1847.)

The Secretary of War can release a soldier from his contract of enlistment by a discharge, but has no power to suspend it, even with the soldier's consent. 15 Òp. At. Gen., 362. (1877.)

2 Breitenbach v. Bush, 44 Pa. St., 317. And see Clark v. Martin, 3 Grant's Cases, 393; do., 5 Phila., 251.

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In re Wall, 8 Fed. Rep., 85; McConologue's case, 107 Mass., 170; In re Drew, 25 Law Rep., 538; In re Graham, 8 Jones (N. C.), 416; Wilbur v. Grace, 12 Johns., 67; Ex parte Anderson, 16 Iowa, 598; Com. v. Gamble, 11 Sergt. & Rawle, 93; Tyler v. Pomeroy, 8 Allen, 480, 501. See notes to §§ 1180, 1181, and 1258, ante.

*See 3 Comp. Dec., 557.