Imágenes de páginas
PDF
EPUB

and in view of the reasons upon which such conclusion rests, held that stoppages may legally be made to reimburse post exchange, company, bakery, hospital, and regimental funds. Cards 3171, June, 1897; 7186, October, 1899.

1425. Where a retired enlisted man embezzled $240, post exchange funds, held, in view of the fact that such funds are recognized as an instrumentality of the Government, that his pay could legally be stopped to reimburse those funds. Card 3171, June, 1897.

1426. Where certain officers had misappropriated and applied to their own use $589.08, company funds, recommended, that that amount be stopped against their pay. Card 7186, October, 1899.

1427. An officer at the time of his death was accountable for $360 company fund. fund. A board of survey reported that he had left in lieu of the money an unindorsed government check for that amount, payable to his order and purporting to be for pay due him. It thus appeared that the officer owed the company fund $360, and that the Government owed him the same amount for salary, the check not having been presented and paid. Advised, therefore, that as an officer's pay may legally be stopped to reimburse the company fund, $360 be stopped against the pay due the deceased officer, and that the check referred to be returned to the drawer to be cancelled. Card 7957, April, 1900.

FURLOUGH.

1428. Held that a department commander, in acceding to the application of an enlisted man for a month's furlough, would not be authorized to make the grant conditional on his giving up or waiving one month of the three months' furlough allowed at the end of the third year of enlistment by the act of June 16, 1890, c. 426, sec. 2. The provisions of this act are based upon public policy, being devised with a view to diminishing the great evil of desertion. In this view they entitle the soldier as a right to the furlough at the time specified and to the discharge at its expiration. The policy is extended to all soldiers, and the right made absolute. It is not even declared that the furlough or discharge shall be allowed under "regulations to be prescribed;" the grant is unqualified and unrestricted. Any condition imposed by a commander would thus be in contravention of the terms and policy of the law. The furlough given a soldier, pending the term of enlistment, under par. 109 or 110, A. R. (1889), is an altogether different matter and should be considered as quite independent of the furlough provided by the act of 1890. The former furlough is in the commander's discretion under the regulations, and should be granted

on the merits of each case as a separate and distinct act and order quite irrespective of the statutory furlough that may be earned by faithfu service at the end of the three years. 64, 220, March, 1894.

1429. Under the provisions of sec. 2 of the act of June 16, 1890, granting a three months' furlough to soldiers after three years of “faithful" service, held that it would not be expedient to adopt an inflexible rule that a soldier who at any prior period of his enlistment had been convicted of a military offence should be deemed ineligible to such furlough. As regards offences other than desertion, each case should properly be left to be decided upon its own merits at the discretion of the Secretary of War. 48, 20, June, 1891.

G.

GAMBLING.

1430. Gambling, per se, does not constitute a military offence. If indulged in, however, to such an extent or in such a manner as to give it the character of a disorder to the prejudice of good order and military discipline" in the sense of Art. 62, or under circumstances so personally discreditable as to bring it within the description of "conduct unbecoming an officer and a gentleman," it may of course be taken cognizance of by a court martial. The Army Regulations recognize it as peculiarly objectionable when practised by a disbursing officer. XVI, 381, July, 1865; XL, 32, October, 1877.

GARNISHMENT.

1431. It is well settled, upon considerations of public policy, that funds in the possession of a paymaster of the army or other disbursing agent of the United States, due as pay, salary, or wages, to an officer or soldier of the army, or other government employee, cannot be attached in a suit instituted against such officer, &c., by a private creditor. VIII, 493, May, 1864; XX, 413, February, 1866; XXVI,

1See, in G. C. M. O. 18, War Dept., 1871, a case of a disbursing officer convicted of gambling, as an offence under Art. 62; and note the remarks of the reviewing authority upon an instance of this class in G. O. 2, Dept. of Arizona, 1878. In an early case-in G. O. 104, Hdqrs. of Army, 1833-it was held that a claim by a disbursing officer that he had played for too small stakes to endanger the safety of the public funds entrusted to his charge, was not a sufficient excuse for his gambling, in view of the regulation. See par. 590, A. R. of 1895 (672 of 1901).

2 Buchanan v. Alexander, 4 Howard, 20; Averill v. Tucker, 2 Cranch, C. C. 544; Derr v. Lubey, 1 McArthur, 187; 13 Opins. At. Gen. 566. And the same principle is applied to moneys due from municipal corporations. Hawthorn v. St. Louis, 11 Mo. 59; Burnham v. Fond du Lac, 15 Wisc. 211; Wilson . Bk. of La. 55 Ga. 98; Pruitt . Armstrong, 56 Ala. 306; Boone Co. v. Keck, 31 Ark. 387.

466, February, 1868; XXVIII, 47, August, 1868; XXXIII, 8, March, 1872; XXXIV, 26, November, 1872; Cards 1901, December, 1895; 2767, December, 1896; 4887, September, 1898; 6103, March, 1899. Where indeed the pay due has been paid over to a third person as the authorized agent or attorney of the party entitled to receive it, it may be attached by the garnishee process in the hands of such person. Card 4887, supra.

1432. The principle is well established that money in the hands of a disbursing agent of the United States is not subject to attachment in a suit by a creditor of a party to whom such money is due and payable. A military disbursing officer is therefore not empowered to pay moneys in his hands, due a government contractor, to any creditor of such contractor, or to any person other than the contractor himself, or his agent or attorney or personal representative; nor can he be made liable to pay over any part of such moneys as garnishee in a suit brought against such contractor. LIV, 514, January, 1888.

1433. A general service clerk received from a paymaster of the army, in payment of his monthly pay, a check upon a national bank, which was a U. S. depositary. On presentation the bank retained the check and refused payment on the ground that the county sheriff had levied an attachment on all the property of the payee in the bank. Held that such refusal was legally unauthorized. The pay due was public money in the hands of the depositary, and could be paid only to the payee of the check or his order. 54, 361, July, 1892.

1434. A creditor of a government contractor, to whom the Government owes a balance, cannot attain the object of a foreign attachment by bringing suit against the contractor, and joining with him, as defendants, the United States, as also the officer of the army who executed the contract, and praying judgment against the United States, or for an order of court upon the officer to pay over the amount claimed. An individual cannot be allowed so to control the operations of the Government.' 40, 251. April, 1890.

GENERAL STAFF.

1435. The General Staff of the army, consisting of the chiefs of the staff corps and inferior officers of the same, constitute the Staff of

Moreover, when suit is initiated against the United States, the plaintiff is required to proceed according to the provisions of secs. 4, 5 and 6 of the act of March 3, 1887, c. 359, and must duly serve a copy of the petition upon the proper U. S. district attorney, as notice to appear and defend the interests of the United States, and mail a copy to the Attorney General, &c.—a procedure which had not been followed in this case.

the Commander-in-chief of the Army-the President.' As such, these officers are properly under the immediate direction of the Secretary of War, who acts for the President in the administration of the military department. XXXVIII, 253, August, 1876; XL, 17, April, 1877.

H.

HABEAS CORPUS.

1436. In a proclamation of May 10, 1861, the President authorized the commander of the U. S. forces on the Florida coast, if he found it necessary, "to suspend there the writ of habeas corpus." By G. O. 104, War Department, Aug. 13, 1862, the President suspended the privilege of the writ of habeas corpus in cases of persons liable to draft who should attempt to depart to a foreign country, or should absent themselves from the State or county of their residence, in anticipation of a draft to which they would be subject. By a proclamation of September 24, 1862, the President declared the privilege of the writ suspended in respect to all persons arrested or imprisoned “during the rebellion by any military authority," or under "sentence of any court martial or military commission." These proclamations and orders were all based upon the theory that under Art. I, Sec. 9, par. 2, of the Constitution, or otherwise, the President alone, in the absence of any authority from Congress, was empowered to suspend the privilege of the writ. See 1, 345, September, 1862.

But in the following year, by the act of Congress of March 3, 1863, c. 81, s. 1, it was provided: "That during the present rebellion the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any

'Stocqueler, Military Dictionary, title "General Staff," defines this term:-"The body of officers entrusted with the general duties of the army in aid of a commanderin-chief." See G. O. 11 and 28, A. G. O., 1869; also two letters of Secretary of War to Lieutenant General Sheridan (5603, A. G. O. 1885) dated, respectively, Dec. 9, 1884, and Jan. 17, 1885.

"The question whether the President was authorized, in his own discretion and independently of the sanction of Congress, to exercise this power, was much discussed early in the civil war. The fullest argument in favor of the existence of the power in the President, is contained in Mr. Horace Binney's treatise on "The Privilege of the Writ of Habeas Corpus under the Constitution." And see also, Ex parte Field, 5 Blatch. 63; Opinion of At. Gen. Bates in 10 Opins. 74. The weight of judicial authority, however, was the other way. See Ex parte Merryman, Taney, 246; McCall r. McDowell, 1 Abbott, U. S. R., 212; Griffin e. Wilcox, 21 Ind. 383; In re Kemp, 16 Wisc. 382; In re Oliver, 17 id. 703.

part thereof;"-Congress, by thus asserting the right in itself to authorize the suspension, implying that, in its opinion, the power to suspend did not reside in the President.'

In sundry particular cases, referred to the Judge-Advocate General by the Secretary of War, of persons detected in holding correspondence with, or giving intelligence or otherwise lending aid to, the enemy, as also in obstructing enlistments in the army, &c., the opinion was expressed that the suspension of the writ by the President would be legally justified under this act. II, 174, 456, April and May, 1863; III, 72, June, 1863. The instances, however, of suspension in individual cases were not numerous; for, presently, viz., on Sept. 15, 1863, and pursuant to the act of March 1863 above cited, the President issued a proclamation suspending the privilege of the writ generally, and "throughout the United States" in all cases "where, by the authority of the President of the United States, military, naval, and civil officers of the United States, or any of them, hold persons under their command or in their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or officers, soldiers, or seamen enrolled or drafted or mustered or enlisted in, or belonging to, the land or naval forces of the United States, or as deserters therefrom, or otherwise amenable to military law, or the rules and articles of war, or the rules or regulations prescribed for the military or naval services by authority of the President of the United States, or for resisting a draft, or for any other offence against the military or naval service. In a case in which, by the operation of this last proclamation, the writ was suspended, held that any judge or court, whether of the United States or of a State, would be required to dismiss the writ, on being advised (in the manner and form indicated in the act of March 3, 1863, s. 1) that the party sought to be relieved was "detained as a prisoner under the authority of the President." XV, 157, May, 1865.

1437. By a proclamation of Dec. 1, 1865, the President "revoked and annulled" the suspension (by proclamation of Sept. 15, 1863) of the privilege of the writ in certain States, including New York. Held that such revocation did not operate to authorize the discharge, by a court of that State, of a prisoner detained in military custody under color of the authority of the United States. XXI, 92, December, 1865. 1438. But, independently, on the one hand, of any proclamation or act of the President suspending the privilege of the writ, or, on the other hand, of any proclamation revoking a previous suspension, and on constitutional grounds alone,-held that no court or judge of any State could in any instance be authorized to discharge, on habeas corpus,

1See In re Murphy, Woolworth, 141.

« AnteriorContinuar »