REPORTER.

2168. The power to appoint the reporter, under Section 1203, Rev. Sts.,' is vested exclusively in the judge-advocate and cannot be exercised by the court. The employment, however, of a stenographic reporter should be resorted to only in an important case. II, 515, June, 1863; XXXIV, 232, April, 1873.

sworn.

2

2169. The statute does not indicate by whom the reporter shall be In practice he is sworn by the judge-advocate; a form of oath being prescribed in the Manual for Courts Martial. If the same party is employed as a reporter for more than one case, he should, properly, be sworn anew in each case. Cards 294, September, 1894; 4646, 4647, July, 1898; 5169, October, 1898.

3

2170. Par. 959 A. R., provides that when a reporter is employed under section 1203, Rev. Sts., he will be paid not to exceed ten dollars per day, but that "in special cases when authorized by the Secretary of War, stenographic reporters may be employed at rates not exceeding 25 cents per folio (one hundred words) for taking and subscribing the notes in shorthand, and ten cents per folio for other notes, exhibits and appendices." Held that this regulation requires the action of the Secretary of War in each special case, and does not contemplate a delegation of his authority in the matter. Card 5564, December, 1898.

2171. Paragraph 959, Army Regulations, as amended (see 1063 of 1901), authorizes payment of mileage over the shortest usually travelled route at the rate of eight cents per mile, to a reporter of a court martial and his assistants while going from the place of employment to the place of holding the court, provided the latter place is more than ten miles from the former. Held, that the regulation does not authorize payment of mileage for the return journey. Card 7101, September, 1899.

2172. By circular 22, A. G. O. of 1898, the employment of enlisted men as reporters for courts martial was authorized "without extra expense to the United States." Under A. R. 960 (1064 of 1901), "no person in the military or civil service can lawfully receive extra compensation for clerical duties performed for a military court" and sec.

This section provides: "The judge-advocate of a military court shall have power to appoint a reporter, who shall record the proceedings of, and testimony taken before, such court, and may set down the same, in the first instance, in short hand. The reporter shall, before entering upon his duty, be sworn, or affirmed, faithfully to perform the same."

See pars. 958 and 959, A. R. (1062 and 1063 of 1901).

3 See Circ. 11, A. G. O. 1894; also note 5, p. 29, Court-Martial Manual (1901). That the reporter should be excluded from the court during its deliberations and not permitted to record the findings or sentence, see § 798, ante.

6 of the act of April 26, 1898 (30 Stats. 365), provides "that in war time no additional increased compensation [. additional to the twenty per centum increase] shall be allowed to soldiers performing what is known as extra or special duty." Held that under the regulation and statute referred to no extra pay can be allowed an enlisted man for services as reporter. Cards 5434, December, 1898; 7334, November, 1899.

2173. The army appropriation acts now appropriate money for expenses of courts martial, courts of inquiry, and compensation of reporters and witnesses attending the same." Reporters for courts of inquiry may therefore be paid out of such appropriation. If the employment of a reporter for a board of officers should be authorized by the Secretary of War, payment for such service would have to be made from the appropriation for the contingent expenses of the army. Card 6971, September, 1899.

REPRIMAND.

2174. A court martial, in imposing the punishment of reprimand, will, if adding anything in regard to its execution, properly direct that the reprimand be administered by the commander who convened the court. A sentence to be reprimanded by an officer inferior to the convening authority is not in accordance with the approved practice of the service. It is not necessary or desirable, however, that the court should direct as to the execution of the sentence, the same being the proper province of the reviewing officer. XII, 18, October, 1864.

2175. Although, in adjudging a reprimand, it is generally intended by a court martial to impose a mild punishment, the quality of the reprimand is nevertheless left to the discretion of the authority who is to pronounce it, and it is open to him to make it as severe as he may deem expedient without being chargeable with adding to the punishment. XXXIII, 498, November, 1872.

REQUISITION.

2176. Whether the Executive shall turn over a military prisoner undergoing sentence of court martial to a governor of a State, upon his formal request, in order that he may be tried and punished by a court of the State, or in order to enable such governor to surrender him to the governor of another State in compliance with a requisition made by the latter for the party as a criminal under the laws of the latter State, is a question to be decided by considerations of policy and expediency suggested by the facts of the particular case. The

U. S. Government is under no obligation to surrender its prisoner, and whether it will, in comity, do so, should in general depend mainly upon the nature of the crime charged. Unless the party be charged with a peculiarly heinous offence, of which, for the purposes of public example and punishment, a prompt investigation by a civil tribunal is called for, the Executive will in general properly decline to turn over the party to the civil authorities till his military punishment has been fully executed. XXXVII, 47, October, 1875.

RESIDENCE.

2177. The fact that an officer is stationed within a particular State or Territory does not make the same his legal residence, since he is there, not by his own will or choice, but in obedience to the order of a superior, and moreover can have no animus manendi, subject as he is to be removed at any moment by a similar order to a station in a different State or Territory. Exceptions, however, to this general rule may exist in the cases of officers who are not subject, or likely, to have their places of habitancy changed by superior military authority. Such are the cases of the officers-the chiefs of the staff corps for instancewhose duties require them to remain or at least have their offices permanently in Washington; and such are also the cases of the majority of the officers on the retired list. In any such exceptional case, the question of residence, where it is at all doubtful, will in the main, as in the cases of civilians, be determined by the evidence of an animus manendi, as exhibited by the acts and declarations of the party. XXIX, 85, July 1869; XXX, 215, 528, March and July, 1870.

2178. An officer who has resided elsewhere cannot make a certain place his residence by merely declaring that it is so, or that he has elected it to be such. He must take some definite action indicating an intention and an ability to permanently remain, such as providing himself with a dwelling there, removing his family there, entering into business there, etc., to constitute the place designated his actual residence or domicil in law. 53, 443, May, 1892.

2179. If a legal residence in a certain State has once existed, mere temporary absence, however long continued, as the result of an enlistment or enlistments in the army, will not destroy it. L. 392, June, 1886. Liability to taxation or other liability, as a resident of a certain locality, is not ordinarily affected by the enlisting or holding of a com

1Graham . Commonwealth, 51 Pa. St. 258; Wood r. Fitzgerald & Wingate, 3 Oregon, 568; G. O. 13, First Mil. Dist., 1868; Taylor . Reading, 4 Brewst. 439; Devlin v. Anderson, 38 Cal. 92. And see § 645, ante.

2 Brewer". Linnaeus, 36 Maine, 428.

mission in the army and the being stationed at a place other than such locality; the party being at such place not by his own volition, and the animus revertendi to the original domicil being presumed to still subsist. LV, 623, January, 1888.

2180. The legal residence of the father of a person who was a commissioned officer in the military service at the time when he became of age was Calais, Vermont. Soon after attaining his majority, the military station of this officer (he continuing in the army) was changed to Burlington, Vt., where he is now on duty. Sec. 63 of the revised statutes of Vermont provides that "no person shall gain or lose a residence by reason of his presence or absence while in the service of the State or of the United States." Held that the residence of the officer was still Calais, Vt., his status, after leaving there, not having been such as to enable him to acquire a new residence. 60, 223, June, 1893.

2181. The legal residence of an unemancipated minor is that of his father or parent, and as an officer of the army does not acquire a new legal residence by being temporarily on duty at a station, his unemancipated minor son could not acquire a legal residence at such place. Card 1220, April, 1895.

2182. A person in the military service of the United States, is entitled to vote where he has his legal residence provided he has the qualifications prescribed by the laws of the State. He does not lose such residence by reason of being absent in the service of the United States. The laws of a particular State in which he is stationed and has only a temporary as distinguished from a legal residence may however permit him to vote in that State after a certain period of actual residence. Cards 472, October, 1894; 601, November, 1894.

RESIGNATION.

2

2183. It has been held by a United States court that "a civil officer has a right to resign his office at pleasure, and it is not in the power of the Executive to compel him to remain in office." In a case of a military officer, however, this right is subject to certain restrictions growing out of the military status. Thus while, in time of peace, an officer of the army, in good standing, is in general entitled to tender and have accepted his resignation, yet, in time of war or when grave embarrassment to the service or prejudice to discipline may result from his leaving his duty, the acceptance of his resignation may properly be refused. And so, where he has tendered his resigna

1 Jacobs, Law of Domicil, 401.

2 United States v. Wright, 1 McLean, 512.

tion while under charges, and a failure of justice might result from allowing him to evade trial. XIV, 129, February, 1865.

2184. A resignation does not become operative until the officer is officially notified of the acceptance of the same. Mere acceptance, without notice, does not give effect to the resignation. It is not till due notice of the same is received that the officer is legally separated from the army and made a civilian, and up to the date of such notice he is entitled to pay. XLII, 68, December, 1878.

2185. A mere offer to resign or tender of resignation is revocable at any time before acceptance. But after an acceptance, and before effect has been given to the same by notice (see § 2184, ante), the offer can not be withdrawn or materially modified by the act of the officer alone, but the consent of the appointing power is also necessary. After due notice of the acceptance has been communicated, there can of course be no withdrawal of the tender or revocation of the acceptance. XXXIX, 375; Card 2170, April, 1896.

2186. While a tender of his resignation by an insane officer is in general without legal effect and incapable of being legally accepted, yet where a resignation tendered by an insane officer was, in the absence, at the War Department, of any knowledge of his insanity, formally accepted, and the vacancy created by the resignation was thereupon filled,-held that the acceptance could not legally be revoked, and that the appointment to the vacancy was valid and operative. XXXIX, 420, February, 1878.

2187. A resignation takes effect only upon acceptance by competent authority and notice of the same given to the officer. 36, 337, November, 1889; 42, 370, August, 1890. The acceptance of an officer's resignation becomes operative and severs him from the military service, upon his receiving either actual or constructive notice of such acceptance. 50, 458, December, 1891; Card 6409, May, 1899.

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2188. It is an established rule that when an order has been forwarded in the regular way to an officer's regiment it will be presumed, unless there is something to indicate the contrary, that it reached its destination and also that it was delivered to the officer affected thereby, unless he was absent from his regiment; and if he was absent without

1 Barger v. United States, 6 Ct. Cls. 35; Mimmack's Case, infra. And compare the wording of the 49th Article of War. That an officer is effectually detached from the army by an acceptance, duly communicated, of his resignation, and cannot thereafter be restored to the military service by a revocation of such acceptance, or by anything short of a re-appointment, see the leading case of Mimmack v. United States, in 10 Ct. Cls. 584, and 7 Otto, 426; also, 12 Opins. At. Gen. 555; 14 id. 262. 22 Opins. At. Gen. 406; 14 id. 261.

36 Opins. At. Gen. 456; 10 id. 229; 12 id. 557.

See, to a similar effect, 15 Opins. At. Gen. 469.

5 Compare § 1204, ante.