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supplemental contract with them whereby the Government would expressly undertake to indemnify them against any claims for infringement of the patent rights of other patentees.

(C. 25188, Apr. 8, 1912.)

CONTRACTS: Sufficiency of notice to make delivery of articles purchased.

A contract provided for the delivery of a certain amount of grain to the United States in quantities ordered by the depot quartermaster, that portion delivered prior to December 31 to be paid for at a certain rate, while the portion delivered afterwards was to be paid for at a higher rate. Notice was given in the latter part of December for delivery during that month of the entire balance of grain due under the contract. Delivery was not made until after December, and compensation was claimed at the higher rate upon the ground that there was not sufficient time after notice for making delivery in December, and that even if delivery had been tendered in that month the Government was not in position to receive it. Held, that it was the duty of the Government to have given notice for the delivery of the grain in sufficient time to have permitted its delivery within the month of December, and if it did not, and delivery was accepted, after that month, payment for the grain delivered should be made at the prices provided for in the contract for deliveries at the time when they were actually made; and further, that the Government should also have been in a position to have received the grain in December, if tendered, in order to have availed itself of the prices fixed for December deliveries.

(C. 29573, Apr. 3, 1912.)

COURTS-MARTIAL: Discipline; reviewing authority.

The action of a reviewing authority in approving a sentence of a general court-martial and simultaneously remitting a portion thereof is legally equivalent to approving only the sentence as reduced. (C. 23038, May 2, 1912.)

DESERTER: Reward for apprehension; additional expenses.

A sheriff of one of the Hawaiian Islands transported a deserter from the United States Army to Honolulu where he was delivered to the military authorities, and in so doing expended a sum very nearly equal to the $50 reward authorized for the apprehension and delivery of deserters. On submission of the question as to whether there were any means by which the expenses might be paid and the sheriff receive the full reward. Held, that the $50 reward authorized by Army Regulations, made in pursuance of law, for the return of deserters from the United States Army, must include all expenses of apprehending and bringing the deserter to the nearest military post or to a place agreed upon; but that there is no restriction placed upon the cost of the journey of an armed party sent to receive the person arrested and held as a deserter.

(C. 17327-B, Feb. 15, 1912.)

DESERTERS: Reward for apprehension; claim of policeman for arresting deserter after he had surrendered to military authority.

Where a deserter had surrendered to a recruiting sergeant, had been placed in arrest, paroled to a given date, and while at large under such parole was arrested as a deserter by a police officer who claimed to believe that the deserter intended to escape. Held, that the police officer was not entitled to the reward for the apprehension and delivery of a deserter.

(C. 17327, May 29, 1912.)

DESERTERS: Reward for apprehension; confined in prison.

A Bertillion clerk at a State penitentiary informed the military authorities that a prisoner at that institution was probably a de

serter, which information led to his apprehension and arrest by said authorities immediately upon the termination of his term of imprisonment. The other penitentiary officers did nothing more than turn the prisoner over to the military authorities at the end of his term, and disclaimed any interest in the reward. Held, that the person furnishing the information was entitled to the entire reward offered for the return of the deserter and that it was not necessary that he should personally have made the arrest and delivery to the military authorities.

(C. 17327-B, Feb. 9, 1912.)

DESERTERS: Reward for apprehension; delivered as absent without leave, but tried for desertion.

Where a police officer delivered to the military authorities a soldier as having been absent without leave, but who was later deemed by those authorities to be a deserter and was tried as such. Held, that the police officer is entitled to a reward as having apprehended and delivered a deserter, and this though the soldier was acquitted of desertion and convicted of absence without leave only.

(C. 17327-B, Apr. 17, 1912.)

DISCIPLINE: Punishment in reducing from first-class private.

The maximum punishment order provided that for certain offenses first-class privates might be reduced to second-class privates. Pursuant to this order a first-class private of the Signal Corps was sentenced to "be reduced from first-class private to second-class private." At the time the only privates in the Signal Corps were 'first-class privates and "privates." There were no "second-class privates." Held, that as the only grade below that of first-class private was private, the effect of the sentence was to reduce the soldier to the grade of private.

(C. 3694, May 20, 1912.)

EIGHT-HOUR LAW: Government employees; extraordinary emergency.

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Under the act of August 1, 1892 (27 Stat., 340), it does not constitute a sufficient statement of an extraordinary emergency to report merely that a laborer or mechanic was employed overtime on account of "working aloft as rigger," "extra attention required to floating plant," "repairing derrick," repairing machinery of working plant," or "making necessary repairs to machinery." An emergency is any event or occasional combination of circumstances which calls for immediate action or remedy, and the report of an extraordinary emergency, required by paragraph 742, Army Regulations, 1910, should show that conditions demanded immediate action or remedy.

(C. 20169-C., Feb. 2, 1912.)

EMPLOYEES: Presents to official superiors.

Section 1784, Revised Statutes, provides that no officer, clerk, or employee in the Government service shall solicit contributions from officers, clerks, or employees in the same service for a gift or a present to any one in a superior official position, and prohibits any such official or clerical superior from accepting any such present. Held, that the forelady in the tent department of the Philadelphia, Pa., depot of the Quartermaster's Department, who only has the duty of distributing work among employees and superintending its execution, is not an official or clerical superior nor a person occupying a superior official position within the meaning of said statute, and does not violate its provisions by accepting presents from employees under her direction which have been paid for with money raised by voluntary subscription among such employees, nor does the employee who solicits such subscriptions thereby violate said statute.

(C. 29736, May 29, 1912, p. 13.)

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ENLISTED MEN: Engaging in commercial business; hiring out automobiles. Complaint having been made that certain enlisted men owning automobiles at a post were letting them out for hire and were competing with a regular stage line between the post and a neighboring village. Held, that while enlisted men do not by enlistment lose their rights as citizens to engage in commercial business, and while there is no objection to their owning automobiles and allowing others to use them for hire, yet, for military reasons, they should not be permitted to maintain anything in the nature of a regular system of transportation for gain.

(Č. 29467, Feb. 29, 1912.)

GRATUITY: Deceased officers and soldiers; carelessness or accident not misconduct.

In civil actions to recover damages from a defendant on account of injuries caused by the defendant's negligence, the rule is that if the plaintiff has failed to exercise that reasonable degree of care and diligence which a person of ordinary prudence and capacity might be expected to exercise under similar circumstances, he is himself guilty of contributory negligence and can not recover from the defendant. But in cases arising under the act of May 11, 1908 (35 Stat., 108), as amended by the act of March 3, 1909 (35 Stat., 735), which provides for the payment to certain beneficiaries of a' gratuity equal to six months' pay of an officer or enlisted man on notice of his death from wounds or disease "not the result of his own misconduct," the above rule preventing recovery in case of contributory negligence can not be applied as a test of whether six months' pay shall be paid to the beneficiary of the deceased officer or soldier. This is for the reason that "misconduct," which is the test applied by the above acts, implies something in the nature of intentional wrongdoing, the transgression of some established rule, military, civil, or moral, or a reckless disregard of one's safety, etc. Carelessness or an accident on the part of the deceased officer or soldier not amounting to "misconduct " will not defeat payment to the beneficiary.

(C. 23666, June 25, 1912.)

GRATUITY: Payable on death of soldier; soldier's misconduct.

Where a soldier absent from his station, whether with or without leave, trespasses upon private property, he assumes the risk of injury resulting from such a trespass, and such an injury would be not in line of duty and would be the result of his own misconduct. (C. 23666, Aug. 4, 1909; Oct. 4, 1910.) The determination whether a soldier's death while trespassing on tracks of a railroad company is in line of duty or results from his own misconduct in a given case, does not in any way depend on the liability of the company to the soldier for damages. (C. 23666, Sept. 19, 1910.) Nor does it depend on whether the soldier was violating a military rule or regulation, but rather does it depend on the quality or condition of the act itself of the soldier. (C. 23666, Feb. 29, 1912, citing 2 Pension Decisions, 232.)

MEDICAL ATTENDANCE: Seamen in the Army Transport Service; appropriations.

A seaman in the Army Transport Service was sent to an Army hospital ashore for temporary treatment. Held, that seamen in the United States Army Transport Service are entitled under their contract of employment to all the benefits which usually pertain to the service of a seaman, or which may be provided for such service by regulation, which include needful medicines and medical attendance; and when one receives treatment ashore by authority of the officers of the vessel on which he is engaged, the expenses therefor are a charge against the United States. Held further, that the appropriation for medical attendance and supplies under the control of the Medical Department is chargeable with the expenses of such treat

8

ment, said appropriation being more specific as to this purpose than that for the transportation of the Army to which the service is incidental.

(C. 24389, May 28, 1912.)

MILITARY ACADEMY: Reappointment of cadet under section 1825, Revised Statutes.

Where a cadet had been found deficient and recommended for discharge by the Academic Board and had as a result been discharged. Held, that under section 1325, Revised Statutes, the former cadet, although he had passed the age fixed for original admission to the Academy, might be reappointed, as section 1325, Revised Statutes, shows no age requirement and clearly has for its intent not to permit one who has been a cadet to commence or recommence his career at the Military Academy, but to continue it.

(C. 16602, Mar. 22, 1912.)

MILITARY RESERVATIONS: Power of the President over public lands.

Any military reservation, whether so designated by presidential or congressional authority, which, in the opinion of the President, has become useless for military purposes, may be turned over to the control of the Secretary of the Interior for disposition under the act of July 5, 1884 (23 Stat., 103), and may, either before or after the turning over of the same to the control of the Secretary of the Interior and before disposition thereof, be set aside by him for some other public purpose in the same manner as other public lands. (C. 29379, Apr. 6, 1912.)

MILITIA: Accounting for tent equipage used by the governor of the State for the relief of flood sufferers.

The governor of the State of Arkansas loaned to the sufferers from the Mississippi floods certain tent equipage which had been issued to the State by the United States for the use of the organized militia, and thereafter requested an additional issue of such equipment for the use of said militia, in view of the fact that it was uncertain when the State would receive back the tentage so loaned, and also whether when received back it would be in condition for use. Held, that supplies and equipage issued to the several States for the use of the militia thereof and paid for from the appropriations under section 1661, Revised Statutes, remain the property of the United States until consumed, and that the Government might take over said tentage at its actual value when turned over for the use of the flood sufferers and continue to use the same for the relief of said sufferers, crediting the State's allotment from said appropriation and charging the appropriation available for the purchase of tentage for such purpose.

(C. 29692, May 13, 1912.)

MILITIA: Machine-gun organizations.

Section 3 of the militia law of January 21, 1903 (32 Stat., 775), provided that the organization, armament, and discipline of the Organized Militia shall be the same as that prescribed for the Regular Army. This section was amended by section 2 of the act of May 27, 1908 (35 Stat., 399), by adding the words " subject in time of peace to such general exceptions as may be authorized by the Secretary of War." Held, that this exception is broad enough to include machine-gun units or organizations containing additional commissioned officers and enlisted men to those prescribed for batteries in the Regular Army, and the officers and men are entitled to be paid as a part of the Organized Militia while rendering service otherwise entitling them to such pay, provided that said organizations are uniform so as to make the exception_general.

(C. 14148-I, June 4, 1912.)

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MILITIA: Officer of the Army detailed as instructor and inspector.

An officer of the Army was detailed as instructor and inspector for the Organized Militia of the State of California, under the provisions of the act of March 3, 1911 (36 Stat., 1045). On reporting to the governor of the State he was directed by him to proceed from Sacramento to San Francisco, in said State, for the performance of duties in connection with the Organized Militia. Held, that the expense of his transportation from Sacramento to San Francisco, being incident to his service to the militia and not to his service to the United States, is not a charge against the United States, and the officer must look to the State for reimbursement.

(C. 14148, June 15, 1912; see also Decision of the Assistant Comptroller of the Treasury of Mar. 18, 1912.)

MILITIA: Officers of the Regular Army holding commissions In.

While an officer in the Regular Army is not precluded by section 1222, Revised Statutes, from holding office in the Organized Militia of a State, yet where, by the laws of a State, he can not be so commissioned as to permit his release at the will of the Secretary of War from his obligations as a militia officer, advised, that the officer be not granted permission to accept such militia appointment.

(C. 14148-1, June 15 and 17, 1912.)

MILITIA: Officer on active list in the Regular Army holding office in; compatibility; holding two offices.

Held, that an office in the Organized Militia of a State is a military and not a civil office and that an officer of the Regular Army on the active list is not precluded from holding a commission in the Organized Militia by section 1222, Revised Statutes, which prohibits such officer from holding or exercising the functions of any civil office. Held further, that the office held by a commissioned officer in the regular service and that held by a commissioned officer in the State militia are not legally incompatible and may be held by the same person, but that State laws might impose conditions rendering it impracticable or impossible for the officer to hold both positions at the same time. Held further, that under the act of July 31, 1894 (28 Stat., 205), which provides that

"No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate."

a Regular Army officer may accept a commission in the State militia, as any other office" refers to a Federal office only. (C. 29273, Nov. 28, 1911.)

MILITIA: Use of outside of the United States.

Under existing law the President is not authorized to call out the Organized Militia of the States and send it into a foreign country with the Regular Army as a part of an army of occupation, especially where the United States should intervene in the affairs of another nation under conditions not involving actual war. (C. 14148-I, Dec. 20, 1911.)

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NAVIGABLE WATERS: Construction of term Appurtenances."

Where, by act of Congress approved June 25, 1910 (36 Stat. 640), the Secretary of War was authorized to enter into contract, subject to "ratification and appropriation by Congress," for the purchase of a canal "together with all property, rights of property, and all franchises appertaining thereto," and the canal company, while agreeing 51254-12-2