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16.

ENLISTMENT OF MINOR UNDER 18 WITHOUT PARENTS' CONSENT Enlistment I A 9 f.

Memorandum for the Judge Advocate General.

January 25, 1918.

1. (a) Should any distinction be made between the Army and Marine Corps in the treatment of minors, and,

(b) Under what circumstances should the Department refuse to grant an application for the discharge of a minor under eighteen years of age, who has enlisted without the written consent of his parent or guardian?

2. There is no statute which in terms applies to enlistments in the Marine Corps. Enlistments in the Marine Corps of the United States are not governed by statutes relating to enlistments in the Navy, but are governed by the statutory provisions relating to Army enlistments by virtue of paragraph 4151 of the Regulations prescribed by the Secretary of the Navy, which reads:

"The regulations for the recruiting service of the Army shall be applied to the recruiting service of the Marine Corps as far as practicable."

In McCalla v. Facer, 144 Fed. 61, 75 C. C. A. 219, it was held that the foregoing regulation served to make applicable to men enlisting in the Marine Corps the law governing enlistments in the Army.

3. Upon the question of the discharge of a minor from the military service who has enlisted without the written consent of his parent or guardian, the conclusions deducible from the decisions are:

(a) A minor over sixteen years of age is without power to avoid his enlistment. In re Morrissey, 137 U. S. 157, 11 Sup. Ct. 57, 34 L. Ed. 644; In re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636; In re Wall (C. C.) 8 Fed. 85.

(b) To avoid the enlistment by parent or guardian application must be seasonably made. Ex parte Dostal (D. C.) 243 Fed. 664: Ex parte Rush (D. C.) 246 Fed. 172; Ex parte Dunakin (D. C.) 202 Fed. 209; Ex parte Hubbard (C. C.) 182 Fed. 76.

(c) If the application for his discharge is not made until the minor had attained the age of eighteen years, his enlistment is validated by his service after attaining such age. Ex parte Dostal, supra; Ex parte Hubbard, supra.

(d) If the minor is being held for an offense committed against military law, the jurisdiction of the military authorities in the premises cannot be ousted by the civil court. Ex parte Dostal, supra; Dillingham v. Booker, 163 Fed. 696, 90 C. C. A. 280, 18 L. R. A. (N. S.) 956, 16 Ann. Čas. 127; Ex parte Foley (D. C.) 243 Fed. 470; In re Miller, 114 Fed. 838, 52 C. C. A. 472; Ex parte Dunakin, supra.

17. GOVERNMENT LIABILITY FOR DAMAGE BY MILITARY OPERA

Claims XII.

153 (Misc. Div.)

TIONS

8th Ind.

War Department, J. A. G. O., February 5, 1918-To the Adjutant

General.

1. This is a letter by Mr. F. I. Allen, of Westfield, Massachusetts, for damages due to the occupation of his land as a camp ground by troops, including the removal of trees therefrom and the construction of roads and latrines on the property, during August, September and October, 1917. The amount of said claim is $60, which amount the claimant agrees to accept in full for all claims and demands against the United States for damages caused to his property. A board of officers convened for the purpose of investigating the said claim reported under date of October 3, 1917, as the conclusion of its findings, that the land used was necessary for the encampment of troops, that the trees cut were removed by order of the camp commander, and that the amount of the claim was reasonable and just.

2. It appears that this property was occupied without any formal lease and that there was no agreement as to any payment for its use or for the timber that might be cut on the property. The Department Commander, Northeastern Department, recommends that the amount of the claim, $60, be paid to the claimant from the appropriation "Claims for Damage to and Loss of Private Property" for which provision is made in the current appropriation for the support of the Army.

3. The officer in charge of the cantonment division, Quartermaster General's office, to whom the papers were referred, returns them approved for the expenditure of the amount named from the appropriation "Roads, Walks, Wharves and Drainage, 1918," and states that the amount involved will be charged to the general deficiency authorized by the Assistant Secretary of War, December 14, 1917.

4. The Department Commander, Northeastern Department, to whom the claim is returned, requests instructions as to whether in view of the existing emergency, any modification has been made of the specific prohibition against payment of damages of this class, contained in paragraph 153, Compilation of Orders (Cir. 22, A. G. O. 1910), except as prescribed therein and he invites attention to the specific provision in the said circular that in the absence of an appropriation for the purpose the Department is without authority to pay or settle such claims.

5. I do not know of any modification of the prohibition contained in this circular which appears to be based on the well settled rule that the administrative officers of the Government are without authority to settle claims for unliquidated damage. I am of the opinion, therefore, that the appropriation for "Roads, Walks, Wharves and Drainage, 1918," is not available for payment of the said damages.

18. ACQUISITION OF CANTONMENT SITES-STATE JURISDICTION

Public Property VII A.

Public Property II A.

February 6, 1918.

From: Office of the Judge Advocate General.

To: The Division Judge Advocate, 86th Division, Camp Grant, Rockford, Illinois.

Subject: Jurisdiction over cantonments-condemnation of lands for military purposes.

1. In your report of November 10, 1917, you request information on certain questions which, with the answer to each immediately thereunder, are as follows:

Question: "3. There is need for an authoritative decision as to the jurisdiction of the United States over lands leased for cantonment sites and as to the extent that States retain jurisdiction in such cases.” Answer: As the lands for these sites have not been purchased with the consent of the State, the United States has not acquired exclusive political jurisdiction thereover under the seventeenth clause of section Eight, article I, of the Constitution of the United States. Moreover, as the lands have not been acquired by the Federal government, but have been merely leased to the Government for cantonment sites, the United States would not have jurisdiction thereover under the statutes, if any, of the respective States ceding jurisdiction to the United States over lands purchased within the State for military purposes, inter alia. It would seem, therefore, that the State retains its political jurisdiction within the cantonment site, but the authority of the State is subject to this limitation, that it can not interfere with the legal activities of the Federal government or affect the property rights of that Government. The State can not, therefore, hamper the Federal government in its control over the cantonment site or impose any regulations restricting its use by the Federal government. These are matters within Federal control and are without the field of State jurisdiction. The State, however, retains its political jurisdiction, so that a murder committed within the cantonment site would be triable in the State courts, although, if committed by a person subject to military jurisdiction, it would also be within the jurisdiction of a general court-martial. According to the rule as to divided jurisdiction, the jurisdiction which first attaches retains its jurisdictional authority until it is relinquished or the ends of justice have been satisfied.

Question: "5. Personally, I should like to have any decision from your office or other sources, bearing upon the question of condemnation of lands for military use, other than the Act of July 2, 1917, if any such exist. This office has a great deal of work, in connection with leasing of this cantonment site and target range site, and decisions from other Divisions on questions in connection with like matters would be welcome."

Answer: The Act of July 2, 1917 (Public No. 26, 65th Cong. [40 Stat. 24]), is a reenactment, with modifications, of the Act of August

18, 1890 (26 Stat. 316 [Comp. St. 1916, § 6911]), broadening the prior act so as to include "military training camps;" to authorize the acquisition of temporary interests in the lands; to authorize the immediate possession thereof upon filing of the petition in condemnation; and to waive the requirements of Section 355, Revised Statutes (Comp. St. 1916, § 6902), during the existing emergency. This statute is applicable where the lands are to be acquired for the purposes stated; that is, "for the site, location, construction or prosecution of works of fortifications, coast defense and military training camps." It authorizes the acquisition of lands for these purposes, thereby supplying the authority to acquire the lands required by Section 3736, Revised Statutes (Comp. St. 1916, § 6889), which reads: "No lands shall be purchased on account of the United States except under a law authorizing such purchase."

Where lands are to be acquired for purposes other than those specified in the Act of July 2, 1917, authority for their acquisition must be sought elsewhere. Thus, in the Signal Corps Act of July 24, 1917 (Pub. No. 29, 65th Cong. [40 Stat. 243]), authority is given "for the purchase or lease of land with the buildings thereon" required under the authority for the "acquisition and development of plants, factories, and establishments for the manufacture of aeroplanes, aircrafts, etc." Similarly, the Act of October 6, 1917 (Pub. No. 64, 65th Cong. [40 Stat. 345]), confers authority under the Ordnance Department for the acquisition of storage facilities, etc. The Act of August 1, 1888 (25 Stat. 357 [Comp. St. 1916, § 6909]), authorizes the acquisition by condemnation proceedings as prescribed therein, where any officer of the Government is "authorized to procure real estate for the erection of a public building or for other public uses." It will be seen that the Act of July 2, 1917, is limited to the purposes specified therein; i. e., to lands required "for fortification, coast defense and military training camps;" and that where the required lands are needed for other purposes, authority, if any, for their acquisition must be found in other statutes; and that unless they can be acquired by purchase, condemnation thereof, where there is authority to acquire the lands, is authorized by the said Act of August 1, 1888.

[Signed] E. H. Crowder, Judge Advocate General.

19. STOPPAGE OF GROUP PAY FOR TORTS

Articles of War LIV.

4th Ind.

War Department, J. A. G. O., February 15, 1918.-To the Adjutant

General.

1. By the preceding indorsement there is referred to this office for remark a claim growing out of certain damages to the crops of Mr. G. N. Stedman of Spartanburg, South Carolina, inflicted by certain unknown members of the military forces at Camp Wadsworth.

2. By the papers in reference it appears that the claim was inves

tigated by a board of officers appointed by the commanding general of the 27th division. The board found that Mr. Stedman's farm had been damaged to some extent by certain soldiers attached to Camp Wadsworth, but concluded that there was no definite proof of the extent of the damages, nor of the identity of the soldiers, who caused it, nor of the organization to which they belonged. Mr. Stedman claimed that the damages amount to $29.

3. It does not appear how the farm or the growing crops were damaged. In fact, there is an absence of particulars in this most important aspect of the question. It cannot, therefore, be stated whether the damages claimed were the result of unnecessary or willful trespass or whether it was the result of some careless or ordinary act connected with some necessary procedure for the betterment of camp conditions.

4. The rule is well settled that the United States cannot be held responsible for the torts of its officers or agents. Responsibility, if any, in such cases rests upon the individual or the individuals whose negligence or wrongful act or acts, caused the damages (Dig. Op. 1912, p. 242).

5. But wherever a complaint is made that the damages are caused by the tortious or criminal acts of persons subject to military law, then under the 105th Article of War (Comp. St. 1916, § 2308a), where the personal liability of any such person is established, provision is made for deductions sufficient to satisfy any such complaint; and it is further provided in the second and last paragraph of said Article 105, that:

"Where the offenders can not be ascertained, but the organization or detachment to which they belong is known, stoppages to the amount of damages inflicted may be made and assessed in such proportion as may be deemed just upon the individual members thereof who are shown to have been present with such organization or detachment at the time the damages complained of were inflicted as determined by the approved findings of the board."

So, where the organization or detachment to which the offenders belonged is known, then the damages may be proportionately assessed as is deemed just and equitable against the members of the detachment. And while it is stated that the organization to which the offenders, causing these damages, belonged is not known, it does appear from the findings of the board that the damages were inflicted "to some extent by certain soldiers attached to Camp Wadsworth." Therefore, it is pertinent to inquire: Is Camp Wadsworth a detachment? Obviously, it is.

6. It is the opinion of this office that no compensation can be made by the Government to Mr. Stedman for the injury in question, but relief may be obtained by and through the commanding officer at Camp Wadsworth, agreeable to the procedure required and provided for in the 105th Article of War, and especially the last paragraph thereof, to which attention has been here specifically invited.

[Signed] S. T. Ansell, Acting Judge Advocate General.

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