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489. That the Secretary of War is authorized and Secretary of directed to cause all the regulations of the Army now in mutaciones.com force to be codified and published to the Army, and to itish eando pelo defray the expenses thereof out of the contingent fund Army of the Army. Sec. 2, act of June 23, 1879(21 Stat. L., 34). 1879, v. 21, p. 34.

Sec. 2, June 23,

him must be received as the act of the Executive and, as such, be binding upon all within the sphere of his legal or constitutional authority. Such regulations can not be questioned or defied because they may be thought unwise or mistaken. C. S. v. Eliason, 16 Pet., 291, 302.

The term regulations of an Executive Department describes rules and regulations relating to subjects on which a department acts, which are made by the head under an act of Congress conferring that power, and thereby giving to such regulations 'he force of law. A mere order of the President or of a Secretary is not a regulation. Harvey v. U. S., 3 Ct. Cls., 38, 42; Dig. Opin. J. A. G., par. 494, and note 1; IV Compt. Dec., 225. A “regulation” affects a class of officers; an "instruction” is a direction to govern the conduct of the particular officer to whom it is addressed. Landram v. U. S., 16 Ct. Cls. 74. The Army Regulations when sanctioned by the President have the force of law, because it is done by him by the authority of law. U.S. v. Freeman, 3 How., 556; Gratiot v. U. S., 4 How., 80; Ex parte Reed, 100 U.S., 13; Smith v. U. S., 23 Ct. Cls., 452. When Congress permits regulations to be formulated and published and carried into effect from year to year, the legislative ratification must be implied. Maddox v. U. S., 20 Ct. Cis., 193, 198.

The authority of the head of an Executive Department to issue orders, regulations, and instructions, with the approval of the President, is subject to the rondition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress. U. S. v. Symonds, 120 U. S., 46, 49; U. S. 1. Bishop, idem., 51; Dig. Opin. J. A. G., par. 494, note 2; par. 6, p. 168. Regulations can have no retroactive effect. (U. S. v. Davis, 132 U.S., 334.) Provision of statute exists by which the statute regulations of the Army may, within certain limits, be altered by the Secretary of War, but there is no such provision in regard to the statute regulations of the Navy. VI Opin. Att. Gen., 10; 8 ibid., 337. The same discrepancy exists in the military law of Great Britain. Ibid.

Regulations prescribed and framed by the Secretary of War and which are intended for the direction and government of the officers of the Army and agerts of the Department do not bind the Commander in Chief nor the head of the War Department. Burns v. U. S., 12 Wall., 246; Smith 1. U. S., 24 Ct. Cls., 209, 215. But see Arthur v. U. S., 16 Ct. Cls., 422, and U. S. v. Barrows, 1 Abb., 351.

Regulations which heads of Departments are expressly authorized to make, in which the public is interested, become a part of that body of public records of which the courts take judicial notice. Caha v. U. S., 152 U. S., 211.

The purpose of a regulation is to carry into effect the law; but where rights, duties, and obligations are defined by statute they can not be taken away or abridged by regulations. Laurey v. U. S., 32 Ct. Cls., 259; U. S., v. Garlinger, 169 U. S., 316.

While regulations duly promulgated have the force of law in a limited sense, they can not enlarge or restrict the liability of the officer on his bond. Meads v. U. S., 81 Fed. Rep., 684.

Amendment and waiver of regulations.-Regulations made by the head of a Department may be amended or waived in their application to particular cases. III Compt. Dec., 305; IV, ibid., 40; I, ibid., 326. There must be a specific waiver, however, and in the absence of such specific waiver the regulation as it stands will be applied by the accounting officers in the settlement of accounts. III, ibid., 304; IV, ibid., 40.

The Secretary of War is expressly authorized by other enactments of Congress to prescribe regulations for the transportation, safe-keeping, and distribution of articles of supply purchased by the Quartermaster's and Subsistence Departments (sec. 219, R. S.); for the preparation, submission, and opening of bids, act of April 10, 1878 (20 Stat. L., 36); for the deposit of refuse and débris from rivers that is calculated to interfere with navigation, act of August 5, 1886 (24 Stat. L., 329); for the deposit of refuse material beyond the harbor lines established in accordance with statutes, see. 11, act of September 11, 1890 (26 Stat. L., 455); for the use of the channel at the mouth of the Mississippi River which has been improved by the United States, act of June 1, 1874 (18 Stat. L., 50); for the use and operation of canals and other works of river and harbor improvement which have been purchased or constructed by the United States, sec. 4, act of August 17, 1894 (28 Stat. L., 362); for the construction of bridges across the navigable waters of the United States; for the use of certain drawbridges,

THE ARMY REGISTER.

Par.

490. Army Register to be furnished an

nually to the Senate. 91. The same to be furnished annually

to the House of Representatives.

Par.
492. Schedule of pay to appear.
493. Volunteer rank.
494. Lineal rank.

Army Register to be furnished

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Sen. res. Dec. 13, 1815.

490. That the Secretary of War and the Secretary of the Sunually to the Navy be requested to furnish annually, on the first of Jan

uary, each member of the Senate with a copy of the Reg-
ister of the officers of the Army and Navy of the United
States. Senate resolution, December 13, 1815.

sec. 5 (ibid.); to secure a proper administrative examination of accounts sent to him in accordance with the provisions of the act of July 31, 1894 (28 Stat. L., 211); to carry out the provisions of the act of March 29, 1894 (28 Stat. L., 47), in relation to property returns, etc.

Regulations may be divided into different classes with respect to the question of the power of the person making the regulation to authorize an exception to it. There are, or may be, those which have received the sanction of Congress, and it is evident that the Secretary of War would have no authority to make an exception to one of these. There are also those that are mede pursuant to and in aid of a statute. These may be modified, but until this is done are binding as well on the authority that made them as on others. U. S. v. Barrows, 1 Abbott, 351.

There is also a large body of other regulations emanating from and depending solely on the authority of the President as Commander in Chief. With reference to such regulations it has, I believe, been sometimes claimed that the same rule should be applied to them that is applied to the regulations made pursuant to statute. But this has not been done in practice, and I do not think that it should be done, for the reason that it would seem to be an unnecessary, embarrassing, and perhaps unconstitutional limitation of the authority of the President as Commander in Chief. Opin. J. A. Gen., March 5, 1896.

HISTORICAL NOTE.

The first volume of Army Regulations, using that term in the sense in which it is now understood, was issued to the Army on May 1, 1813, under the authority conferred by the act of March 3 of that year.

From March 29, 1779, until May 1, 1813, the “Regulations for the Order and Discipline of the Troops of the United States” were in force. They were prepared by Major-General Baron Steuben, the Inspector-General of the Army during the latter part of the war of the Revolution, and consisted in great part of matter which would now be properly termed drill regulations. The work was first printed at Worcester, Mass., in 1778, and was formally approved and adopted by Congress on March 29, 1779. The last edition of the Steuben regulations appeared in 1809, and it continued in use as a drill book after it had ceased to have authority as a volume of army regulations. In 1808 a small volume was published, apparently with the sanction of the War Department, containing the Articles of War which had been enacted in 1806, to which were added such military laws as were then in force.

Section 5 of the act of March 3, 1813 (2 Stat. L., 819), required the Secretary of War to prepare general regulations which, “when approved by the President of the United States, shall be respected and obeyed until altered or revoked by the same authority.” The volume of regulations issued in pursuance of this authority was entitled “Military laws and rules and regulations for the armies of the United States," and was approved by the President on May 1, 1813. It contained the Articles of War of 1806, together with the statutes relating to the military establishment and a small number of regulations, properly so called. Editions of this work were published in 1814 and 1815, the latter, however, without the authority of the War Department.

The act of April 24, 1816 (3 Stat. L., 298), provided that the regulations in force before the reduction of the Army be recognized as far as the same shall be found applicable to the service, subject, however, to such alterations as the Secretary of War may adopt, with the approbation of the President.” In accordance with this

The same to be furnished annu

House res, Feb. 1, 1830.

491. That the Secretary of War cause to be annually laid before this House a number of copies of the printed army of Representa. list, equal to the number of members of the House. Tlouse tives. resolution, February 1, 1830.

492. That there be annexed annually hereafter to the schedule of Army Register an accurate schedule of the pay and emolu- House res. ments, with the commutation value thereof, to which the various officers of the Army of each grade are entitled House resolution, dugust 30, 1842.

493. The highest volunteer rank which has been held by Volunteer officers of the Regular Army shall be entered, with their Sec. 1226, R. S. names, respectively, upon the Army Register.

Aug. 30, 1812.

legislation a volume of regulations was issued in September, 1816, and in January, 1820, a new edition containing the orders of the War Department issued since Septeniber, 1816.

Section 14 of the act of March 2, 1821 (3 Stat. L., 616), contained a provision that "the system of regulations prepared by Major-General Scott shall be, and the same are hereby, approved and adopted for the government of the Army of the United States and of the militia when in the service of the United States." These regulations were approved by President Monroe and published to the Army in July, 1821. On May 7, 1822, section 14 of the act of March 2, 1821, was formally repealed, thus withdrawing the legislative sanction which had been conferred by the statute above cited. Is to this enactment Attorney-General Wirt advised that, "notwithstanding such repeal, the regulations having received the sanction of the President, continued in force by the authority of the President in all cases where they did not conflict with positive legislation.” 1 Opin. Att. Gen., 549. The Regulations of 1821 were revised under the direction of General Scott and a new edition was issued on March 1, 1825, which continued in force until 1835.

A volume of General Regulations, compiled under the direction of Major-General Macomb, was printed and prepared for issue on September 1, 1835, but was not formally approved and promulgated until December 31, 1836. A second edition of this work, with some modifications, was issued in 1841, and a third edition, containing alterations and amendments, which have been promulgated in orders or taken from former volumes of regulations, was issued to the Army on May 1, 1847.

On January 1, 1857, a volume of Army Regulations, containing a number of important modifications, together with a general rearrangement of paragraphs and subjectmatter, was prepared under the direction of Secretary Davis, and published with the approval of the President on January 1, 1857 This volume continued in force until August 10, 1861, when it was replaced by a revised edition; a second edition of this work was issued on June 25, 1863, containing the “changes and laws affecting Army Regulations and Articles of War.''

The thirty-seventh section of the act of July 28, 1866 (14 Stat. L., 337), directed the Secretary of War “to have prepared and to report to Congress at its next session a code of regulations for the government of the Army and of the militia in actual service, which shall embrace all necessary orders and forms of a general character for the performance of all duties incumbent on officers and men in the military service, including rules for the government of courts-martial; the existing regulations to remain in force until Congress shall have acted on said report.” No code of regulations having been submitted, Congress provided, in section 20 of the act of July 15, 1870 (16 Stat. L., 319), that “the Secretary of War shall prepare a system of general regulations for the administration of the affairs of the Army, which, when approved by Congress, shall be in force and obeyed until altered or revoked by the same authority, and said regulations shall be reported to Congress at its next session: Prorided, that the said regulations shall not be inconsistent with the laws of the United States."

In conformity to this legislation a code of regulations, which had been prepared by a board of officers of which Inspector-General Marcy was the president, was submitted to the House of Representatives on February 17, 1873, and was by that body referred tothe Committee on Military Affairs and ordered to be printed. No steps looking to their adoption were taken during the remainder of the session, and the Fifity-second Con

Lineal rank, etc.

1878, v. 20, p. 149.

494. In every Official Army Register hereafter issued Sec. 2, June 18, the lineal rank of all officers of the line of the Army shall

be given separately for the different arms of the service: and if the officer be promoted from the ranks, or shall have served in the Volunteer Army, either as an enlisted man or officer, his service as a private and noncommissioned officer shall be given, and in addition thereto the record of his service as volunteer. Sec. 2, act of June 18, 1878 (20 Stat. L., 149).

gress aljourned without action. The question was taken up by the Military Committee of the House of Representatives in the Forty-third Congress, and the proposition of adopting a code of Army Regulations was carefully considered. The conclusion reached by the committee was that the power to make and amend or alter regulations had best be left to Executive discretion. To that end a recommendation was submitted, which was adopted by Congress and approved by the President on March 1, 1875 (18 Stat. L., 337). This enactment repealed section 20 of the act of July 15, 1870, and authorized the President “to make and publish regulations for the government of the Army in accordance with existing laws."

Section 2 of the act of June 23, 1879 (21 Stat. L., 31), authorized and directed the Secretary of War" to cause all the regulations now in force to be codified and published to the Army,” and provided that the expense attending the publication of the work should be defrayed from the appropriation for the contingent expenses of the Army for the current fiscal year. Under the authority thus conferred the Regulations of 1881 were prepared and issued to the Army, the order of promulgation bearing date February 17, 1881. A revision and condensation of this volume was issued by the Secretary of War on February 9, 1889. The Regulations now in force became effective on October 31, 1895, having received Executive approval on that date.

CHAPTER XI.

PROVI

THE MILITARY ESTABLISHMENT_GENERAL

SIONS OF ORGANIZATION.

THE MILITARY FORCES OF THE UNITED STATES.

COMPOSITION.

THE REGULAR ARMY —THE VOLUNTEER ARMY—THE MILITIA.”

Par. 495-498. Composition. 499-508. The permanent establishment. 509-514. The war establishment. 515-516. Increase of 1899. 517-528. The Volunteer Army.

Par. 529-534. Tactical organizations. 535-542. Disbandment. 543-554. The Volunteer Army of 1899.

General officers, aids, and military secretaries.

COMPOSITION.

Par.

Par,

national

495. The national forces.

502. The same, officers. 496. Composition.

503. The same, pay and allowances. 497. The Regular Army.

504. The same, enlisted men. 498. The Volunteer Army.

505. The Porto Rican regiment. 499. The Regular Army.

506. Indian scouts. 500. Composition.

507, 508. Enlisted strength of the Army, 501. Native troops, Philippine Islands.

restriction. 495. All able-bodied male citizens of the United States, jotees. and persons of foreign birth who shall have declared their , Apr. 22, 1898, s.

1, v. 30, p. 361. intention to become citizens of the United States under and in pursuance of the laws thereof, between the ages of eighteen and forty-five years, are hereby declared to constitute the national forces, and, with such exceptions and under such conditions as may be prescribed by law, shall be liable to perform military duty in the service of the United States. Sec. 1, act of April 22, 1898 (30 Stat. L.,

361).

496. The organized and active land forces of the United Composition States shall consist of the Army of the United States and 2, v. 30, p. 361.

Apr. 22, 1898, s.

For a note respecting the statutory history of the military establishment, see the end of chapter. For statutes respecting the militia, see chapter XXXV, post.

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