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"enlisted men" at military posts in prohibition States or Territories; but held that there was no existing law prohibiting the sale of liquors (once legally introduced-see § 1501, ante) to officers of the army or to civilians at such posts by post traders or otherwise. 65, 260, June, 1894. 2289. It having been reported that the unrestricted sale by civilians of opium was causing injury to the military service at Fort Sherman, Idaho advised that such sale might be restrained by Congress under its general power of legislation over the Territories; or that, in the absence of action by Congress, the legislature of the Territory would be authorized to regulate the same; and that through one of these two means the evil might probably be abated. 30, 72, February, 1889.

2290. Section 17 of the act for increasing the efficiency of the army of the United States, etc., approved March 2, 1899, provides "that no officer or soldier shall be detailed to sell intoxicating drinks, as a bartender or otherwise, in any post exchange or can* ". Held, that beer is an intoxicating drink within the meaning of this section. Card 5992, March, 1899.

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SALVAGE.

2291. It is a general principle of law that public property stands on the same footing with private property as regards salvage, and upon this principle the goods of the Government are ordinarily held liable to the same rate of salvage as those of individuals, and may be arrested and proceeded against in like manner." But to this rule exceptions have been established. It has been held that the mails cannot be detained for salvage, and it has also been considered that our national ships of war should not be liable to arrest and detention at the suit of salvors, "on account of the injury and inconvenience which might result to the public interests therefrom." This reasoning would appear to be equally applicable to a case of supplies en route to armies in the field in time of war. So held where certain subsistence and quartermaster stores, in transit to our armies and needed for their use, were detained by the United States marshal at Cairo, Illinois, at the suit of the salvors of a steamer sunk with her cargo (including these supplies) in the Mississippi River. XXI, 241, February, 1866.

2292. A citizen of a State within the theatre of the civil war, in order to prevent the capture by the enemy of a steamer belonging to him, caused it to be run up a small stream and concealed. It was,

1See Natl. Bk. v. Co. of Yankton, 101 U. S. 133.

2 United States v. Wilder, 3 Sumner, 308; The Merrimac, 1 Benedict, 201; The Davis, 10 Wallace, 15.

3 The Schooner Merchant, 4 A. R. 609; Marvin, Law of Wreck and Salvage, § 122 *Marvin, id., supra; 2 Parsons' Maritime Law, 625.

however, discovered by a partisan force, by which it was dismantled and partly sunk but not held-the owner continuing to assert, through an agent who remained with it, his right of property therein. Subsequently it was taken possession of, raised, refitted and used in the war by the Federal military authorities. Upon an application by the owner at the end of the war for its restoration and compensation for its use, held that not having been in fact taken from the possession of the enemy it was not subject to a claim for salvage, such as that allowed for property recaptured' or recovered from pirates; but that the sums expended by the Government in raising and refitting it might properly be offset against the amount claimed for it use. XX. 473, 485, March, 1866.

2293. The capture from an enemy of enemy's property, though by civilians, does not entitle the captors to salvage. Thus where a steamer belonging to the enemy, and which had been used by them in the prosecution of the war, was removed from New Orleans just before its occupation by the Federal forces, and concealed in Bayou Jacques where it was found and taken possession of by a detachment of United States troops and military employees, by whom a claim for salvage was thereupon interposed,-held that such claim was quite without legal sanction, the steamer having become, upon capture, under the provisions of s. 1 of the act of March 12, 1863, c. 120, the property of the United States. XX, 565, April, 1866.

SECRETARY OF WAR.

2294. It is a fundamental general principle of our public law that all acts done by and directions emanating from the heads of the executive departments in the course of their administrative duties, are in law the acts and directions of the President, in whom is reposed by the Constitution the entire executive power of the Government, and whom the heads of departments (except where specially invested by Congress with distinctive authority of their own) simply act for and represent.*

'See the Amelia, 4 Dallas, 34; Bas . Tingy, id. 37; Talbot ». Seeman, 1 Cranch, 1; The Adeline, 9 id. 244; Marshall . Delaware Ins. Co. 2 Wash. c. c., 54 (Fed. cas., 9,127).

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2 Davison v. Seal-skins, 2 Paine, 324; Lea . The Alexander, id. 466.

That a Secretary may have special powers devolved upon him, independently of the President, by an act of Congress, see United States . Kendall, 5 Cranch, C. C., 163 (Fed. Cas., 15,517).

Lockington . Smith, Peters C. C., 472; United States . Benner, 1 Baldwin, 238; Wilcox r. Jackson, 13 Peters, 498, 513; United States r. Eliason, 16 id., 302; The Confiscation Cases, 20 Wallace, 109; U. S. v. Farden, 99 U. S., 10, 19; Wolsey v. Chapman, 101 id., 755, 769; Runkle . U. S., 122 id., 543, 557; United States v. Webster, Daveis, 38, 59 (Fed. Cas., 16,658); United States . Freeman, 1 Wood. & Minot, 45; Lockington's Case, Brightly, 288; United States 7. Cutter, 2 Curtis, 617; Hickey r. Huse, 56 Maine, 495; McCall's Case, 5 Philad., 289; In matter of Spangler, 11 Mich., 322; 1 Opins. At. Gen., 380; 6 id., 326, 587, 682; 7 id., 453, 725; 9 id., 463, 465; 10 id., 527; 11 id., 398; 13 id., 5; 14 id., 453.

Thus all orders made and issued by the Secretary of War in connection with the government and regulation of the military establishmentsuch as orders convening general courts martial, or approving and directing the execution of the sentences or otherwise acting upon the proceedings of such courts,' or mitigating or wholly or partially remitting punishments imposed thereby; or orders summarily dismissing officers, or dropping for desertion, retiring or accepting the resignation of, officers; or orders establishing military reservations, or promulgating army regulations, &c., are to be regarded as the orders and acts of the President, whom the Secretary of War represents in the administration of his department; the same being presumed to be made and issued with the knowledge and by the direction of the President, whether or not he be referred to therein as having directed or commanded the same; and being equally as valid and operative as if signed by the hand of the President himself. V, 319, November, 1863; IX, 44, May, 1864; XXIII, 654, August, 1867; XXXVII, 650, June, 1876; XXXVIII, 107, 243, June and August, 1876; XXXIX, 296, November, 1877; XLI, 25, September, 1877; 611, July, 1879; XLII, 209, March, 1879; XLIII, 106, December, 1879.

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2295. It is an established rule of our administrative law that a decision upon a claim once arrived at, upon whatever grounds, by the head of a department of the Government, is a finality so far that, in the absence of new evidence, error of calculation, or fraud, it cannot (without the authority of Congress) be re-opened by a successor.3 LI, 136, November, 1886; 53, 443, May, 1892; Card 687, December,

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2 See Wilcox . Jackson, 13 Peters, 498; U. S. v. Eliason, 16 id., 302; U. S. r. Farden, 99 U. S., 10, 19; Wolsey e. Chapman, 101 id., 755, 769; Hickey r. Huse, 56 Maine, 495; 2 Opins. At. Gen., 67; 13 id., 5; 14 id., 453; 15 id., 290, 463; G. O. 35, W. D.,

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3 U. S. v. Bk. of Metropolis, 15 Peters, 378; Rollins and Presbrey v. U. S., 23 Ct. Cls. 106, and cases cited; Waddell's Case, 25 id. 323; 9 Opins. Atty. Genl., 32; 12 id. 355; 14 id. 275; 15 id. 192; 16 id. 452; 1 Comp. Dec. 193; 2 id. 264, 401; 4 id. 303; 6 id. 236, 245. In Rollins and Presbrey . U. S., supra, it was held, quoting from syllabus, that "any public officer in an executive department may correct his own errors and open, reconsider, or reverse any case decided by himself." In delivering the opinion of the court, Chief Justice Richardson said: "It has long been held in the executive departments that when a claim or controversy between the United States and individuals therein pending has once been fully considered, and final action and determination had thereon by any executive officer having jurisdiction of the same, it can not be re-opened, set aside, and a different result ordered by any successor of such officer, except for fraud, manifest error on the face of the proceedings, such as a mathematical miscalculation or newly discovered evidence, presented within a reasonable time and under such circumstances as would be sufficient cause for granting a new trial in a court of law. This ruling and practice of the departments has been approved elsewhere and has been sustained by the courts. (9 Opin. Att'y. Gen., 34; 12 id., 172, 358; 14 id., 387, 456; 14 id., 275; 15 Pet., 401; Lavalette's Case, 1 C. Cls. R., 147; Jackson's Case, 19 id., 504; State of Illinois Case, 20 id., 342; McKee's Case, 12 id., 560; Day's Case 21 id., 264, and the opinion of the

1894. Held that "new evidence," to be available to change a determination upon a claim arrived at by a previous Secretary of War, must be evidence as to its merits. A mere re-argument, upon a subsequent application, with citation of authorities or precedents, is not such new evidence," or evidence at all, and cannot avail to reverse the original decision. 58, 110, February, 1893. Where an order, fixing the status

of an officer on the retired list, was issued by the Secretary of War in the execution of a statute which it was his duty to execute, held that such order was res judicata, and could not be re-opened or set aside by a succeeding Secretary, in the absence of fraud or manifest error on the face of the proceedings. 41, 358, June, 1890.

2296. Held that the Secretary of War was not empowered, without the authority of legislation, to re-open the action taken by one of his predecessors upon the proceedings of a court of inquiry in the case of a former officer of the army who had now been twenty years a civilian. 42, 438, September, 1890.

2297. The Secretary of War is not authorized, without the authority of Congress, to turn over property of his department, in his charge, to another department for its permanent use and disposition. 51, 414, January, 1892. See, also, Card 1623, August, 1895. But such transfer may be made with proper debit and credit of appropriations.' Cards 3679, January, 1898; 7840, March, 1900.

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2298. It is an established general rule that a head of a department of the Government will not make public or furnish copies of confidential official reports or papers, the disclosure of which will rather prejudice than promote the public interests. In a case of an officer of the army, who, having been dismissed the service by sentence of court martial, applied to be furnished with copies of, or to be allowed to examine, the report of the Judge-Advocate General and the remarks of the General Commanding the Army, in his case,-advised that the application be not acceded to by the Secretary of War, the same being no part of the record of trial of the officer but confidential communica

Judiciary Committee of the Senate, reported by Senator and Judge David Davis, quoted in Jackson's Case above referred to.) But it has never been doubted that any public officer in the departments may correct his own errors, and open, reconsider, and reverse in whole or in part any case decided by himself." As to reopening final settlements, which have been followed by receipt and acceptance by the claimant of the amount awarded, see § 763, ante, and note.

The act of July 31, 1894 (28 Stats., 208), provides that "any person accepting payment under a settlement by an auditor shall be thereby precluded from obtaining a revision of such settlement as to any items upon which payment is accepted." In view of this statute the accounting officers have no jurisdiction to reopen a settlement, upon newly discovered evidence, as to any item upon which payment of the amount allowed by an auditor has been accepted. 7 Comp. Dec. (decision dated March 15, 1901.)

1See Pars. 616 and 671, A. R. (698 and 753 of 1901), and 3 Comp. Dec. 602.

tions addressed to the President through the Secretary of War. 42, 452, September, 1890.

2299. Where, by an act of Congress, the President was "authorized to dispose of" certain reserved lands of the United States, but was not in terms required to execute the transfer, held that the execution of the deeds was a ministerial act and that the same might legally be executed by the Secretary of War. 48, 420, August, 1891.

2300. Held that, in the absence of any statutory authority or appropriation for the purpose, the Secretary of War would not be empowered to issue to the sufferers from wind and hail storms in Lafayette Co., Arkansas, any part of the regular supplies purchased for the support of the army under the annual appropriation act, or to allot for the purpose any part of the public funds appropriated thereby.1 60, 473, July, 1893.

2301. Sec. 3 of the River and Harbor Act of August 11, 1888, made it the duty of the Secretary of War to apply the money appropriated by the act in carrying on the various works by contract or otherwise as may be most economical and advantageous to the Government." Held that he was thus empowered to authorize the engineer officer in charge of the work for the protection of the levees at New Orleans, to hire, without formal contract, a steamboat for transporting material, and for other uses in connection with such work. 40, 95, March, 1890. 2302. Held that, under the general appropriation in the Army Appropriation Act "for the hire of buildings," the Secretary of War was empowered to rent stables for the use of the army; the existing law precluding the renting of stables for the civil establishment not affecting his authority in the matter, and the accounting officers of the Treasury not being warranted in excepting to the wisdom or expedi

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Specific authority for similar purposes has been given by Congress in recent cases as by act of March 31, 1890, authorizing the Secretary of War to purchase tents for the use of persons driven from their homes by floods in Arkansas, Mississippi and Louisiana, and appropriating money therefor; and by joint resolution of April 25, 1890, making an appropriation to be expended by the Secretary of War in the purchase and distribution of subsistence stores for persons suffering from floods of the Mississippi River. And see the joint resolution of Dec. 25, 1893, authorizing certain pecuniary relief to be rendered, in the discretion of the Secretary of War, to the Government employees injured by the Ford's Theatre disaster.

But such assistance has in several instances been given without first obtaining authority from Congress, for example, to the sufferers by storm in Georgia and Florida in 1898; to the Seminole Negro Indians at Fort Clark, Texas, and others in that locality, in June 1899, and in August of that year to the sufferers by tornado in Porto Rico; also to sufferers from the Galveston storm in 1900. And see paragraphs 1440, 1444 and 1446, A. R. (1633, 1638 and 1640 of 1901).

With reference to the Georgia and Florida case, supra, see opinion of Acting Attorney General Richards of Oct. 15, 1898, in which it was held that the relief could be extended under the general executive power, there being no statutory prohibition against such an exercise of it.

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