27. ACCRUAL OF WAR RISK BENEFITS FOR INDUCTED MEN 4th Ind. War Department, J. A. G. O., March 26, 1918.-To the Adjutant General. 1. The opinion of this office is asked upon a suggestion made by the Commanding General, 85th Division, Camp Custer, Michigan, to the effect that the obligations and benefits of the War Risk Insurance Act with reference to allotments and insurance should not accrue to drafted men until they have been physically examined at camp and accepted for service. The second indorsement by the Bureau of War Risk Insurance holds this suggestion to be contrary to the provisions of the War Risk Insurance Act (40 Stat. 398). 2. By the terms of the 2d Article of War (Comp. St. 1916, § 2308a), of section 2 of the Selective Draft Act (40 Stat. 76, 78), and of section 157 of the Selective Service Regulations, drafted men are in the military service from the dates they are required by the terms of the order directing them to report for military service to obey the same. Franke v. Murray [C. C. A.] 248 Fed. 865, Bulletin 62, Interpretation of War Statutes. After they have been duly examined and passed as qualified for military service, have been ordered by the local board to report for military service at a designated camp, and have actually reported pursuant to such order, they are in active service within the meaning of the War Risk Insurance Act, and are, consequently, entitled to all of its benefits and subject to all of its obligations. So long as they are in such service, they must make such allotments as are required by the terms of article 2 of the Act. If they apply for insurance pursuant to article 4 of the Act and the regulations thereunder, they are entitled to have it granted; and separation from the service thereafter will not invalidate their policies so long as they comply with the terms thereof. [Signed] S. T. Ansell, Acting Judge Advocate General. 28. MILITARY JURISDICTION OF CIVILIAN EMPLOYEES Discipline VIII G 2. April 3, 1918. From: The Office of the Judge Advocate General. 1. The question presented is whether the military authorities have jurisdiction to try by court-martial a civilian employee at the Port of Embarkation who has committed a theft of government military stores. From the statements contained in your telegraphic communication of the 25th, supplemented by your letter of the 26th ultimo, it appears that William Norwood lives at 339 Gold Street, Brooklyn, N. Y., outside the limits of the Port of Embarkation; that on the afternoon of March 23, 1918, and prior thereto, he was a civilian employee of the Quartermaster Department at the Port of Embarkation, having accepted voluntary employment as a laborer on the docks, presumably in connection with the handling and loading of military supplies for shipment along the line of communication to the theatre of actual hostilities in France. On the afternoon of March 23d he was apprehended while attempting to steal an army uniform and was taken into custody by the military authorities. 2. This office will take notice that the Bush Terminal, where Norwood was employed at the time of the alleged attempt at theft, is within the limits of the Port of Embarkation, at Hoboken, N. J.; that it is under the control of and is being operated by the Government having been commandeered for that purpose; that it is one of the termini of the lines of communication reaching from the Atlantic seaboard to the zone of war in Europe, where our Expeditionary Forces are engaged in actual warfare along the Western Front; and that this terminal is used by the military authorities as a base at which to assemble troops, munitions and military supplies generally, to be forwarded directly along the lines of communication to the Expeditionary Forces carrying on offensive and defensive military operations in Europe. Manifestly, Norwood was employed under a voluntary contract by the military authorities to work at this terminal in connection with the handling of the military supplies there assembled for that purpose. The question is, upon these facts, is a person subject to military law? 3. Subdivision (d) of the 2d Article of War (Comp. St. 1916, § 2308a) makes subject to military law "all retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, or, in time of war, all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles." Obviously, an army in the field must be supplied with troops, munitions, food, clothing, and other supplies from bases previously established and maintained. As a part of the operations in the field, the line of communication from these bases of supplies to the fighting front must be kept open and supplies assembled at the bases forwarded as necessity arises. The operation of the line of communication stretching from the bases of supplies to the battlefield is as essential as maintaining troops along the fighting line, and, indeed, the latter depends wholly upon the former. It cannot be well asserted that those who serve along the line of communication are not serving with the army in the field; and these lines must necessarily include the bases and extend thence to the zone of actual warfare. If an army were engaged in combat and supplies of necessary troops, food, clothing, etc., were assembled back of the line a distance of ten, fifteen, twentyfive or fifty miles, it would not be contended that those who served at the base and those who served on the line from the base to the battle front were not serving with the army in the field, and the application of the principle cannot be made to depend upon the length of line, it being once established, as in the present case, that the base is a part of the line of communication which supplies our troops in France. 4. This view is in harmony with earlier opinions of this office. In an opinion under date of December 11, 1917, this office dealt with the case of Charles W. Blake, Master of the U. S. A. Chartered Transport Teresa. He was charged with, and convicted of, failing to obey orders received from the Commanding General at the Port of Embarkation, Newport News, on September 21, 1917, concerning the sailing of his ship. The ship was not owned by the Government but was merely chartered. The ship was in the Port of Embarkation, Newport News, at the time. It was engaged to carry military supplies from that point along the line of communication to France. The master was not employed by the United States. Nevertheless, it was held that, within the meaning of the provisions of the 2d Article of War quoted, supra, he was serving with the armies in the field and was subject to military law. The case of Charles E. Gerlack involved construction of these provisions. Gerlack went to Europe as mate on the S. S. McClellan, used as a military transport. He was there discharged and sent back on the army transport El Occidente. While the latter ship was in the danger zone near the Azores, Gerlack refused to take a lookout and to assist in safeguarding the ship. He was tried for disobedience of orders, convicted by a general court-martial, and sentenced to a term. of confinement, the United States Disciplinary Barracks, Fort Leavenworth, Kansas, being designated as the place of confinement. After conviction he made application for a writ of habeas corpus to the United States District Court for the Southern District of New York. The court held that he was subject to military law and dismissed the writ. 5. In the opinion of this office, Norwood, at the time of the alleged attempt at theft, was a person subject to military law and his offense is within the jurisdiction of a court-martial. Whether or not jurisdiction should be asserted in this case is a question of administrative expediency. If the civil authorities should proceed in the case and make proper application for his surrender to them for trial for his alleged offense, such application should be given consideration in accordance with the policy heretofore announced. by the War Department with respect to the surrender to the civil authorities for trial of persons subject to military law, accused of civil offenses. [Signed] E. H. Crowder, Judge Advocate General. 29. DISCHARGE OF REGULAR ARMY OFFICER TEMPORARILY PROMOTED Office IV E2. Memorandum for the Adjutant General. April 9, 1918. 1. The question presented is whether an officer of the Regular Army who has been given a temporary promotion in the Regular Army under section 8 of the Selective Draft Act of May 18, 1917 (40 Stat. 76), can be discharged from this office under section 9 of the same act, the statute requiring such promotions to be confirmed by the Senate. 2. The pertinent parts of section 8, Selective Draft Act of May 18, 1917 (40 Stat. 76, 81), provides: "Vacancies in all grades in the Regular Army resulting from the appointment of the officers thereof to higher grades in the forces other than the Regular Army herein provided for shall be filled by temporary promotions and appointments in the manner prescribed for filling temporary vacancies by section 114 of the National Defense Act, approved June 3, 1916." Section 114, National Defense Act of June 3, 1916 (39 Stat. 166, 211 [Comp. St. 1916, § 1908a]), in pertinent part provides: "That officers temporarily promoted or appointed under the terms of this section shall be promoted or appointed by the President by and with the advice of the Senate for terms that shall not extend beyond the war or the passing of the emergency for which additional forces were brought into the military service of the United States and at the termination of the war or the passing of the emergency, said officers shall be discharged from the positions held by them under their temporary commissions or appointments." Section 9, Selective Draft Act, supra, in pertinent part, provides: "That the appointments authorized and made as provided by the second, third, fourth, fifth, sixth, and seventh paragraphs of section. one and by section eight of this act and the temporary appointments in the Regular Army authorized by the first paragraph of section one of this act, shall be for the period of the emergency unless sooner terminated by discharge or otherwise. The President is hereby authorized to discharge any officer from the office held by him under such appointment for any cause which, in the judgment of the President, would promote the public service. * * * " 3. In considering the foregoing provisions the rule of construction that a statute must be construed with reference to its leading idea and purpose; that it is passed as a whole and not in sections and is animated by one general purpose and intent which must not be lost sight of; and that each part or section must be construed in connection with every other part or section so as to produce a harmonious whole, must be adopted. Lewis' Sutherland, Statutory Construction, 568. 4. The leading idea and purpose of the Selective Draft Act of May 18, 1917, supra, is to increase temporarily the military establishment of the United States and to give the President the greatest freedom of action in its organization and the appointment and removal of its officers. The Act contains 14 sections and with the exception of sections 10, 11, 13 and 14 each section in express terms confers power upon the President looking to the single end, that is, the greatest freedom of action to raise, organize, equip and officer the temporary military forces of the United States. 5. Paragraph 1, section 1, Id., authorizes the President to terminate provisional appointments whenever it is determined in a manner to be prescribed by him that an officer has not suitable fitness for permanent appointment. Section 9, Id., provides that the appointments authorized and made as provided for in the remaining paragraphs of section 1 and section 8, Id., shall be for the period of the emergency unless sooner terminated by discharge or otherwise and gives the President authority to discharge any officer from the office held by him under such appointment for any cause which in the judgment of the President will promote the public service. The tenure of office of officers who are temporarily promoted in the Regular Army to the vacancies occasioned by the appointment of officers of higher grades in the Regular Army office in the other forces, is for the period of the war or the passing of the present emergency and is in effect the same tenure as that of regular officers appointed in the temporary forces whose places in the Regular Army they are promoted to fill. The President is given express authority to discharge any officer from the office held by him under temporary appointment, although officers up to the grade of colonel are appointed by the President alone and officers above the grade of colonel are appointed by the President by and with the advice of the Senate. Did Congress intend to make a distinction between officers of the Regular Army thus promoted and the officers appointed or is the word "appointment" as used in section 9, Id., broad enough to include officers temporarily promoted? No reason suggests itself why any officer of the Regular Army temporarily promoted therein should not be discharged in the same manner that an officer of the same force temporarily appointed to an office in the additional forces. The purpose of the Act is furthered by the inclusion and it requires no strained construction of the word "appointment" to include them. 6. The word "appoint" has been defined "to designate, ordain, prescribe, nominate." People v. Fitzsimmons, 68 N. Y. 514. "A promotion in the army is an appointment to a higher office therein. The custom so far as I am aware is to nominate the promoted officer to the Senate and subsequently to appoint and commission him anew." 30 Op. Atty. Gen. 180. These definitions are in harmony with the spirit of the Act and give the President the power that was clearly contemplated by Congress. To adopt a narrower construction of the word "appointment" and to. hold that it does not include an officer temporarily promoted to vacancies in the Regular Army will deny the President this power and will lead to anomalous situations. For instance, a Major of the Regular Army is appointed a Colonel in the National Army and the senior Captain in the Regular Army is promoted to temporary Major in the Regular Army. The President terminates the Regular Army Major's commission as Colonel in the National Army and he reverts to his status as Major in the Regular Army. It is then necessary to terminate the commission of the Captain who holds the temporary commission as Major. The tenure of his temporary commission as Major is the period of the war or the passing of the emergency. Unless the President has the power under section 9, Id., to discharge him, how is his office terminated? Having regard to the manifest object of the Act and of the rule of construction that "the natural import of words is their literal sense but this may be greatly varied to give effect to the fundamental purpose of the statute." Lewis' Sutherland, Statutory Construction, 374, it is believed that the word "appointment" as used in section 9, Id., |