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150, s. 17, v. 16, P. 161.

Persons for

June 22, 1870, c. need of counsel or advice, shall call upon

the Department of Justice, the officers of which shall attend to the same.' Sec. 189, R. S.

116. It shall not be lawful for any person appointed after merly in the Departments not to the first day of June, one thousand eight hundred and prosecute claims

seventy-two, as an officer, clerk, or employee in any of the 256, 8, 5, v. 17, 9: Departments, to act as counsel, attorney, or agent for Sec. 190, R. S. prosecuting any claim against the United States which was

pending in either of said Departments while he was such officer, clerk, or employee, nor in any manner, nor by any means, to aid in the prosecution of any such claim, within two years next after he shall have censed to be such officer, clerk or employee."

in them.

1, c 202.

See paragraph 343, post, and paragraph 113, ante.
2 See XVIII Opin. Att. Gen., 125, 136; XIX ibid., 328; XX ibid., 657.

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Assistant See

Mar. 5, 1890, v.

117. There shall be at the seat of Government an Execu

of the Departtive Department to be known as the Department of War, ment of War

Sec. 214, R. S. and a Secretary of War, who shall be the head thereof. 118. There shall be in the Department of War an Assist

retary of War to ant Secretary of War, who shall be appointed by the be appointed. President, by and with the advice and consent of the 20, p. 17.' Senate, and shall be entitled to a salary of four thousand Salary. five hundred dollars a year, payable monthly, and who shall perform such duties in the Department of War as Duties. shall be prescribed by the Secretary or may be required by law.” Act March 5, 1890 (26 Stat. L., 17).

'The Department of War and the office of Secretary of War were created by the act of August 7, 1789 (1 Stat. L., 49). The Secretary of War succeeded to the office and functions of the Secretary at War, whose powers and duties were defined in an ordinance of Congress dated January 27, 1785 (1 Stat. L., 49, note b). The office of Secretary of War included that of Secretary of the Navy until April 30, 1798, when the Department oi the Navy was established, and so much of the act of August 7, 1789, as imposed duties upon the Secretary of War in connection therewith was repealed (1 Stat. L., 553). For statutory provisions respecting a temporary vacancy in the Office of Secretary of War see paragraphs 7 to 14, ante.

2 The act of August 5, 1882, authorizing the appointment of an Assistant Secretary of War was repealed by the act of July 7, 1884 (23 Stat. L., 331), the power conferred by the act of August 5, 1882, never having been exercised. In the case of Ryan v. U.S., 136 U.S., 18, 80, it was held that the authority vested in the Secretary of War could in his absence be exercised by the officer who under the law became for the time acting Secretary of War.

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Commanding 119. The President nay authorize and direct the ComGeneral of the Army, etc., may manding General of the Army or the chief of any military President to per bureau of the War Department to perform the duties of Secretary of the Secretary of War under the provisions of section one

Aug: 5, 1882, v. hundred and seventy-nine of the Revised Statutes, and 22, p. 238.

section twelve hundred and twenty-two of the Revised Statutes shall not be held or taken to apply to the officer so designated by reason of his temporarily performing such

duties. Act of August 5, 1882 (22 Stat. L., 238). Secretary of 120. When, from illness or other cause, the Secretary of Warmay authorize chiei clerk to War is temporarily absent from the War Department, he tions, etc., in his may authorize the chief clerk of the Department to sign

Mar. 4, 1874, v. requisitions upon the Treasury Department, and other 18, p. 19.

papers requiring the signature of said Secretary; the same, when signed by the chief clerk during such temporary absence, to be of the same force and effect as if signed by the Secretary of War himself. Act of March 4, 1874 (18 Stat. L., 19).

121. During the absence of the Quartermaster-General,

or the chief of any military bureau of the War DepartSoc. 11:32, R.s. ment, the President is authorized to empower some offi

cer of the department or corps whose chief is absent to take charge thereof, and to perform the duties of Quartermaster-General, or chief of department or corps, as de case may be, during such absence. Act of February 25, 1877 (19 Stat. L., 242).

Designation of officer to act as chief of bureau,

Feb. 25, 1877, v. 19, p. 242

For the general duties of chief clerks see paragraphs 21 and 22, ante. 2 This section contains the substance of section 5 of the act of July 4, 1836 (5 Stat. L., 117), which was passed in order to enable Q. M. Gen. Thos. S. Jesup to exercise command of the troops engaged in the prosecution of the Florida war. General Jesup served under this assignment from May 19, 1836, to July 7, 1838, when he resumed the performance of his duties as Quartermaster-General in the War Department.



Par. 122. Management of military affairs. 126. Transportation of troops. 123. Custody of records.

127. Construction and operation of tele124. Collection of flags, etc.

graph lines. 125. Designation and purchase of sup- 128. Adininistration of oaths in investiplies.

gations. 122. The Secretary of War shall perform such duties as Management

of military afshall from time to time be enjoined on or intrusted to him fairs.

Aug. 7, 1789, c. by the President relative to military commissions, the mili- 7, 8.1, v. 1. . 19.

Sec. 216, R, S. tary forces, the warlike stores of the United States, or to other matters respecting military affairs; and he shall conduct the business of the Department in such manner as the President shall direct. (See secs. 3660–3665, 3669, R. S.)

123. The Secretary of War shall have the custody and Custody of the charge of all the books, records, papers, furniture, fixtures, refyr

records and prop

Aug. 7, 1789, c. and other property appertaining to the Department.

7, ss. 2, 4, v.1, p.50. Sec. 217, R. S.

3 The Secretary of War is the regular constitutional organ of the President for the administration of the military establishment of the nation; and rules and orders publicly promulgated through him must be received as the acts of the Executive and, as such, bu binding upon all within the sphere of his legal and constitutional authority. Such regulations can not be questioned or defied because they may be thought unwise or mistaken. The right of so considering and treating the authority of the Executive, vested as it is with the command of the military and naval forces, could not be intrusted to officers of any grade inferior to the Commander in Chief; its consequence, if tolerated, would be a complete disorganization of both the Army and Navy. U. S. v. Eliason, 16 Pet., 291, 302; Wilcox v. Jackson, 13 Pet., 198, 513; Wolsey : Chapman, 101 U.S., 755; Runkle v. U.S., 122 U.S., 543, 557; U.S. e'. Adams, 7 Wall., 463. The Secretary of War is not required to perform duties in the field. fle does not compose any part of the Army, and has no service to perform that may not be done at the seat of government. 1 Opin. Att. Gen., 457; V. S. 1. Burns, 12 Wall., 246; see also note 2 to par. 5, and the title Bridges over the navigable waters of the United States, in the chapter entitled THE CORPS OF ENGINEERS.

Duties imposed by statute.-In addition to his duties as the constitutional organ of the President for the administration of the military establishment, the Secretary of War is, by other statutes, charged with the supervision of the administration of the several bureaus or offices of the War Department, their estimates, contracts, expenditures, reports, and returns being under his sole direction and control. He has also been charged, from time to time, with the execution of laws relating to national cemeteries, the Soldiers' Home, the National Home for Disabled Volunteer Soldiers, the military prison, the detail of officers to colleges, the distribution of relief to sufferers by fire, flood, or by the failure of crops, due to drought or other causes, the construction and operation of canals, roads, and lines of telegraph, the location and construction of bridges over the navigable waters of the United States, of railroads through the public lands, the protection of settlers and emigrants, the establishment of harbor lines, the adjustment of claims, the establishment and maintenance of national military parks, and the location, marking, and preservation of lines of battle on the battlefields of the civil war. Since the act of June 28, 1864, all statutes authorizing the construction of works of river and harbor improvement have contained the provision that the sums appropriated shall be expended under his direction. The Military Academy and the schools of application at Willets Point, Fortress Monroe, and at Forts Leavenworth and Riley are also carried on under the immediate supervision of the Secretary of War. By the act of April 10, 1878, the Secretary of War is authorized to prescribe rules and regulations to be observed in the preparation, submission, and opening of bids for contracts under the War Department. See also pars. 5 and 6 and notes thereunder for general provisions respecting the powers and duties of the heads of the several Executive Departments.

Collecting flags, etc.


Sec. 218, R. S.

Purchase and transportation of

Mar. 3, 1813, c.

124. The Secretary of War shall from time to time cause Apr. 18, 1814, to be collected and transmitted to him, at the seat of goyc. 78, s. 1, v. 3, p.

ernment, all such flags, standards, and colors as are taken by the Army from the enemies of the United States.

125. The Secretary of War shall from time to time define supplies. and y rescribe the kinds as well as the amount of supplies 4, s. 5, v. 2, p. to be purchased by the Subsistence and Quartermaster Sec. 219, K. S. departments of the Army, and the duties and powers

thereof respecting such purchases; and shall prescribe general regulations for the transportation of the articles of supply from the places of purchase to the several armies, garrisons, posts, and recruiting places, for the safe-keeping of such articles, and for the distribution of an adequate and timely supply of the same to the regimental quartermasters, and to such other officers as may by virtue of such regulations be intrusted with the same; and shall fix and make reasonable allowances for the store rent and storage necessary for the safe-keeping of al military stores and

supplies. Transportation 126. The transportation of troops, munitions of war, Jan. 31, 1862

, equipments, military property, and stores, throughout the

United States, shall be under the immediate control and supervision of the Secretary of War and such agents as he may appoint.

127. That the construction of new lines of telegraph

shall be under the supervision and direction of the several 20, p. 219. military commanders, subject to the approval of the Sec

retary of War. Act of June 20, 1878 (20 Stat. L., 219).

128. The Secretary of War is authorized to detail one Nar: 3, 1963, c. or more of the employees of the War Department for Ser. 225, R. s. the purpose of administering the oaths required by law in

the settlement of officers' accounts for clothing, camp and garrison equipage, quartermaster's stores, and ordnance, which oaths shall be administered without expense to the parties taking them.

of troops, etc.
15, S. 4, v. 12, p.

Sec. 220, R. S.

Construction of new lines of telegraph, etc.

June 20, 1878, V.

Power to administer oaths.

79, s. 25. v. 13, p. 491.

1 The act of October 1, 1890, provides that “the civilian duties now performed by the Signal Corps of the Army shall hereafter devolve upon a bureau, which, on or aiter July first, eighteen hundred and ninety-one, shall be established in the Department of Agriculture, and the Signal Corps of the Army shall remain a part of the military establishment, under the direction of the Secretary of War, and all estimates for its support shall be included with other estimates for the support of the military establishment.” Vol. 26, Stat. L., ch. 1266, p. 653. This statute operates to repeal so much of sections 221, 222, and 223 of the Revised Statutes as imposed duties upon the Secretary of War and the Chief Signal Officer in connection with the observation and report of storms, leaving under their direction such duties in connection with the construction and repair of military telegraph lines as were imposed by the acts of March 3, 1875, 18 Stat. L., p. 388, and June 20, 1878, 20 Stat. L., p. 219. See chapter entitled THE SIGNAL DEPARTMENT, post.

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