4.

COMMANDING OFFICERS' AUTHORITY TO AID CIVIL AUTHORITIES

Army II D.

WITH TROOPS

2d Ind.

War Department, J. A. G. O., October 25, 1917.-To the Adjutant General.

1. The question asked is whether the commanding officer at Fort Pike, Arkansas, can be authorized by the War Department to act upon his own initiative, "without waiting to communicate with the War Department in the event that a request should be made by the Governor of Arkansas for aid in suppressing riot or other civil disturbance beyond the control of civil authorities."

2. The use of Federal troops for this purpose is made possible by the Constitution of the United States, article 4, § 4. The Constitution does not specify by what Federal official the emergency is to be determined. By statute Congress has conferred this power and responsibility upon the President. Attention is invited to Army Regulations (1913; corrected) article XLVII The power and responsibility cannot be delegated.

3. Hence the commanding officer cannot receive the authority suggested. [Signed] Herbert A. White, CJL.

Acting Judge Advocate General.

5. DELIVERY OF ACCUSED Soldier to CIVIL AUTHORITIES Articles of War LIV, I 1.

2d Ind.

War Department, J. A. G. O., October 30, 1917.-To the Adjutant General.

1. There was transmitted to this office for remark telegram to you from General Plummer, commanding at Camp Dodge, Des Moines, Iowa, as follows:

"Following telegram received: "Tama, Iowa, Oct. Twenty-fifth, Major Gen'l Plummer, Camp Dodge, Iowa. I hold felony warrant John W. Weich of Tama County contingent. Will you release him to me Sunday. Answer at my expense. N. S. Peterson, Sheriff Tama County, Toledo, Iowa.' No directions having been received covering policy during war as to surrendering men under Seventy-Fourth Article of War [Comp. St. 1916, § 2308a] request instruction in this case and for future guidance."

2. The views of this office can be best expressed by quoting the following from communication to you under date of June 11, 1917:

** * The present is a time of war, and a commanding officer is not required by the article to turn over to the civil authorities one subject to military jurisdiction and charged with a civil offense; nor. unless instructed so as to do by the War Department, or proper superior determining such matters of policy, should he do so, inasmuch as the right of the Government to the military service of one so ac

cused in time of war is paramount to all other rights if the Government sees fit to assert it.

"In my judgment the proper policy should be to decline to turn over one subject to military jurisdiction and charged with a civil offense except where the offense charged is a most serious one, such as common-law felonies, primarily against the civil community, which would serve to disqualify the offender for military service and association with upright and honorable men, and the commanding officer reasonably believes that the charge is not without proper foundation and the accused will be accorded a fair trial without prejudice due to his military status."

3. Accompanying this communication is a form of telegram, which it is suggested you send to General Plummer.

4. It is recommended that instructions be sent to the commanding officers throughout the country advising them of the policy of the Department, and directing that whenever application is made by the civil authorities for the surrender of a member of the military forces that a report should be at once transmitted to the Department so as to enable it to dispose of the matter in accordance with the policy outlined. AGO 201.

CJL.

[Signed] S. T. Ansell,

Acting Judge Advocate General.

6. TRANSFERS OF ENLISTED MEN FROM ONE BRANCH TO ANOTHER Army I.

2d Ind.

War Department, J. A. G. O., November 1, 1917.-To the

Adjutant General.

1. The opinion of this office is requested on the question of whether there "is any legal necessity longer to adhere to the distinction between Enlisted Reserve Corps men, Regular Army, National Guard, National Army, etc., in so far as the individual status is concerned." The question is further asked as to whether or not there is any legal reason why enlisted men of the Regular Army, National Guard, National Army, or other divisions of the Army may not be regarded as interchangeable and why they should not all be carried on the same muster roll.

2. In an opinion of this office, dated September 17, 1917, the following statement was made which bears upon the matter here in question:

"In the light of what I have said, my response to the specific question must be that transfer of enlisted personnel from one force to another, in the sense of absolute incorporation in the force to which transferred, is permissible under the law; and, giving the reasoning the wider application it deserves, it seems to me to require the Department. to abolish many of the distinctions which it conceives to exist between and among such forces."

3. No legal reason is known to this office why enlisted men assigned to any organization should not be absolutely incorporated therein and

carried on the muster roll as members of that organization without regard to the particular branch of the Army from which the individuals were derived.

4. It follows that the order suggested in the first indorsement hereon and reading as follows:

"During the present emergency distinctions based on differences in the manner in which members of the military forces of the United States of non-commissioned grade, entered the service shall be disregarded. Enlisted men of the Regular Army, National Guard, National Army or other divisions of the Army are interchangeable and may all be carried on the same muster roll,"

-would be perfectly legal and in accord with the decisions of this office as to the interchangeability of the enlisted personnel pertaining to the various forces which make up the Army of the United States. [Signed] S. T. Ansell,

CJL.

Acting Judge Advocate General.

7.

OFFICER'S INTEREST IN GOVERNMENT CONTRACT

Contracts XV.

November 6, 1917. Mr. Harrington Emerson, President, "The Emerson Company, Efficiency Engineers," 30 Church Street, New York, N. Y.

Sir: Your communication dated November 2, 1917, has been referred to this office for reply. You state that Major E. E. Arison, Ordnance Officers' Reserve Corps, is a shareholder, director and officer of your company, and request to be advised as to whether he can continue as a shareholder, as a director, or as vice president, or as any one or more of these. You state that none of these positions carries any salary and that they require only infrequent presence.

The matter of interest of officers or employees of the military service in private firms or corporations is affected by section 41 of the Criminal Code, section 3 of the act of Congress approved August 10, 1917 (Pub. No. 41-65th Cong.), and paragraph 521, Army Regulations. The statutes and regulations, briefly stated, prohibit any officer or employee from acting as an officer or agent of the government in making any contract or placing any order with a firm or corporation in which he may have a pecuniary interest as a stockholder or otherwise, or in inducing or advising any officer authorized to make a contract or place an order to make the same with a firm, corporation, etc., in which the officer or employee has a pecuniary interest. So long as the character of duties assigned to the officer or employee does not involve his making any contract or advising the making of any contract with any corporation in which he has a pecuniary interest, the statute is not violated. If the officer or employee is a member of a committee or other body which is charged with the duty of making a contract or placing an order, he may not sit by, even if he takes no direct part in the decision, without making a full and complete disclosure of his interest in any contract proposed to be made with any firm or corporation in which he may have an interest. The law further forbids his

participating in making such contract or placing such order. The regulation as amended August 10, 1917, to make it conform to section 41 of the Criminal Code, reads as follows:

"No person in the military or civil service under the War Department will act as an agent of the United States in advising, recommending, making, or approving the purchase of supplies or other property, or the procurement of services for the military establishment, or in contracting with respect thereto, under which purchase, procurement, or contract he would be admitted to share or receive, directly or indirectly, any pecuniary profit or benefit. If such person finds that his duties require him to act as agent of the United States in a matter from which he may derive financial profit, he will report the facts immediately to proper authority and will be relieved from such duties." It follows from the foregoing that there is no objection to Major Arison continuing to be a shareholder, director or vice president of your company provided he takes no part, either directly or indirectly, in making any contract or placing any order for the services of your

War Department, J. A. G. O., November 16, 1917.-To the

Adjutant General.

1. By the preceding indorsement is submitted whether a civilian officer arresting a deserter within his authority can deliver him to the military authorities of the United States outside the limits of his district. It is stated in the within letter from the United States Attorney at Philadelphia, Pa., that this question arises through the Chief of Police of Philadelphia having determined that his police officers have no right to deliver a deserter from the United States Army to the military authorities at Fort Du Pont, Delaware, for the reason they have no authority to detain a deserter so arrested beyond the territorial borders. 2. That the rule of the common law that an officer or private person may arrest a felon without a warrant has never been extended to the case of the offender against the military law was announced in Kurtz v. Moffitt (1883) 115 Ü. S. 487, 6 Sup. Ct. 148, 29 L. Ed. 458. The rule was there stated that neither an officer nor a private person, without an order or direction of a military officer, could arrest or detain a deserter from the United States Army. But the act of June 16, 1890 (Comp. St. 1916, § 2296), provided for the arrest of deserters by civil officers, and the act of June 18, 1898 (30 Stat. 484 [Comp. St. 1916, § 2297]), provides that:

"It shall be lawful for any civilian officer, having authority under the laws of the United States or of any State, Territory, or District, to

arrest offenders, to summarily arrest a deserter from the military service of the United States and deliver him into the custody of the military authority of the general government."

Congress, by conferring this power upon civil officers, intended to enable civil authorities to aid and assist the military in apprehending and delivering deserters. The effect of these statutes is to clothe the civil officer with Federal authority, or, to phrase it differently, is, for the purpose of arresting and detaining deserters from the United States Army, to make a civil officer a Federal official for the purpose of such an arrest. There is no reason why a civil officer of the State of Pennsylvania authorized by the Federal law to arrest a deserter, cannot deliver him into the State of Delaware. He would be protected by the Federal statute in making such delivery. The powers and duties of police officers of the City of Philadelphia are no doubt the subject of State legislation and, strictly speaking, these powers are not involved in the question whether any such officer has the right to deliver a deserter beyond the confines of Pennsylvania. If the law of Pennsylvania should restrict the right of its civilian officers to comply with the Federal law, it would be unconstitutional in so far as it refused to recognize the Federal statute as the supreme law of the land. As to whether a civil officer of the State of Pennsylvania would vacate his State office by assuming to exercise the duties necessarily involved in arresting a deserter from the United States Army under and pursuant to the act of June 18, 1898, because he might be held to have accepted by so doing a Federal office the functions of which are inconsistent with his State office, is a question depending entirely upon State regulation and not necessarily involved in this inquiry.

3. It is therefore the opinion of this office that a civilian officer having authority under the law of Pennsylvania to arrest offenders, can summarily arrest a deserter from the military service of the United States and deliver him into the custody of the military authorities of the general government outside of and beyond the jurisdictional limits of the State of Pennsylvania.

CJL.

[Signed] S. T. Ansell,

Acting Judge Advocate General.

9.

TRANSFER OF OFFICER FROM ONE BRANCH TO ANOTHER Office III C.

1st Ind.

War Department, J. A. G. O., November 27, 1917.-To the Adjutant General.

1. By your memorandum of the 19th you request a decision as to the most expeditious manner of effecting the change of status of a National Guard officer to that of an officer of the Ordnance Reserve Corps. You further refer to a decision of this office under date of August 30, 1916, to the effect that officers of the National Guard are not eligible for appointment to the Officers' Reserve Corps. In your submission you show the great desirability, from the administrative