486. Assistant Secretary of War.-Hereafter, in addition to such other duties as may be assigned him by the Secretary of War, the Assistant Secretary of War, under the direction of the Secretary of War, shall be charged with supervision of the procurement of all military supplies and other business of the War Department pertaining thereto and the assurance of adequate provision for the mobilization of matériel and industrial organizations essential to war-time needs. The Assistant Secretary of War shall receive a salary of $10,000 per annum. There shall be detailed to the office of the Assistant Secretary of War from the branches engaged in procurement such number of officers and civilian employees as may be authorized by regulations approved by the Secretary of War. The offices of Second Assistant Secretary of War and Third Assistant Secretary of War are hereby abolished. Sec. 5a, added to the act of June 3, 1916, by sec. 5, act of June 4, 1920 (41 Stat. 764765). Act of Mar. 5, 1890 (26 Stat. 17), provided as follows: * ** "There shall be in the Department of War an Assistant Secretary of War, who shall be appointed by the President, by and with the advice and consent of the Senate, and shall be entitled to a salary of four thousand five hundred dollars a year, payable monthly, and who shall perform such duties in the Department of War as shall be prescribed by the Secretary or may be required by law." This act was amended by act of Apr. 6, 1918 (40 Stat. 515), providing that "There shall be in the Department of War an Assistant Secretary, a Second Assistant Secretary, and a Third Assistant Secretary, each of whom shall be appointed by the President, by and with the advice and consent of the Senate. The Assistant Secretary shall be entitled to a salary of $5,000 per annum, payable monthly, and the Second Assistant Secretary and Third Assistant Secretary shall each be entitled to a salary of $4,500 per annum, payable monthly, and shall perform such duties in the Department of War as shall be prescribed by the Secretary or as may be required by law." A previous provision for the appointment of an Assistant Secretary, made by act Aug. 5, 1882, sec. 1 (22 Stat. 237), was repealed by act July 7, 1884, sec. 1 (23 Stat. 179), See ante, 169 and 171, with their notes. Notes of Decisions. Effect of act upon previous provision for conferring powers on chief clerk. The act, by providing for en Assistant Secretary, required by R. S., sec. 177, ante, 169, to perform the duties of the Secretary during his temporary absence, did not wholly supersede the provision of act Mar. 4, 1874, post, 488, for authorizing the chief clerk during such absence of the Secretary to sign requl. sitions, etc., and the chief clerk may still be authorized, during the temporary absence of both the Secretary and the Assistant Seeretary, to sign requisitions, etc., as provided by said act. (1903) 24 Op. Atty. Gen. 646. 487. Assistant and chief clerk.-Section two hundred and fifteen is amended by adding at the end of the section the following: "There shall be in the said Department an inferior officer, to be appointed by the said principal officer, to be employed therein as he shall deem proper, and to be called the chief clerk in the Department of War, and who, whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy, shall during such vacancy, have the charge and custody of all records, books, and papers, appertaining to the said Department." Act of Feb. 27, 1877 (19 Stat. 241), amending R. S. 215. Provisions applicable to all the departments, relating to the duties of chief clerks were made by R. S. secs. 173, 174, 176, ante, 106, 108. See also R. S. sec. 177, ante, 169. 488. Requisitions signed by the chief clerk.-That when, from illness or other cause, the Secretary of War is temporarily absent from the War Department, he may authorize the chief clerk of the Department to sign requisitions upon the Treasury Department, and other 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 Mar. 4, 1874 (18 Stat. 19). Notes of Decisions. Effect of creation of office of Assistant Secretary. This act was not wholly superseded by act Mar. 5, 1890 (see note to 786, ante), which provided for an Assistant Secretary of War, authorized by law to perform the duties of the Secretary during his temporary absence; and during the tempo rary absence from the department of both the Secretary and the assistant, the Secretary is empowered to authorize the chief clerk to sign requisitions, etc., this act being still in force, at least within the limited scope stated. (1903) 24 Op. Atty. Gen. 646. 489. Duties of the Secretary of War.-The Secretary of War shall perform such duties as shall from time to time be enjoined on or intrusted to him by the I'resident relative to military commissions, the military 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. R. S. 216. Provisions applicable to the War Department with other departments, requiring commissions of all officers under direction and control of the Secretary to be made out and recorded in the department, and the department seal affixed thereto, were made by act Mar. 28, 1896, sec. 1, post, 2259. Notes of Decisions. Previous provisions.-Before the passage of act May 8, 1792 (1 Stat. 279), sec. 5 of which provided that contracts and purchases for supplying the Army, etc., should be made by or under the direction of the Treasury Department, it would seem that the Secretary of War had a general supervision of such purchases and contracts, under the direction of the President, as propcrly falling within the scope of the duties devolving upon him by sec. 1 of act Aug. 7. 1789 (1 Stat. 49), creating the Department of War. (1870) 13 Op. Atty. Gen. 314, 318. Secretary representative of President.The orders of the Secretary, in the business of the department, are presumed to have been issued in the manner directed by the President, except when subject to special regulations of statute law, or where duties of a personal or Judicial nature are intrusted to the President. In re Billings (1888), 23 Ct. Cl. 166, 176; Truitt v. U. S. (1903), 38 Ct. Cl. 398; (1855) 7 Op. Atty. Gen. 453; (1862), 10 Op. Atty. Gen. 171, 182. And see Wilcox v. Jackson (1839), 13 Pet. 498, 512, 10 L. Ed. 264. The Secretary of War is the regularly constituted organ of the President for the administration of the Military Establishment of the Nation; and rules and orders 146345°-21-21 publicly promulgated through him must be received as the acts of the Executive, and as such be binding upon all within the sphere of his legal and constitutional authority. U. S. v. Eliason (1842), 16 Pet. 291, 301, 10 L. Ed. 968; Maxwell v. U. S. (1914), 49 Ct. Cl. 262; (1881) 17 Op. Atty. Gen. 13, 19, The action of the President in approving the proceedings and confirming the sentence of a court-martial, as required by the Articles of War, although judicial in its nature, need not be attested by his sign manual; an order authenticated by the Secretary of War is sufficient. U. S. v. Page (1891), 11 Sup. Ct. 219, 137 U. S. 673, 34 L. Ed. 828; U. S. v. Fletcher (1893), 13 Sup. Ct. 552, 148 U. S. 84, 37 L. Ed. 378 (distinguishing Runkle v. U. S. [1887], 7 Sup. Ct. 1141, 122 U. S. 543, 30 L. Ed. 1167); Runkle v. U. S. (1884), 19 Ct. Cl. 396. The Secretary of War, under general authority from the President, may exercise a discretionary power given to the President to allow additional rations to officers having a separate command. Parker v. U. S. (1828), 1 Pet, 293, 296, 7 L. Ed. 150. A reservation of public lands, made at the request of the Secretary, for military purposes, must be considered as made by the 321 President. Wilcox v. Jackson ex dem. MeConnel (1839), 13 Pet. 498, 513, 10 L. Ed. 264. An order issued, "by direction of the Secretary of War," by the Major General of the Army, assigning an officer to staff duty, could not be regarded as the order of the President, under act Apr. 22, 1898, sec. 10 (30 Stat. 362), which provided that the President might assign officers to staff duty "in his discretion." Truitt v. U. S. (1903), 38 (t. Cl. 398. The expenditure of money appropriated by Congress to purchase a site for and construct defenses for a city is directly embraced within the President's executive functions, and such expenditure can only be made by the Secretary of War as the agent of the President. The President's deliberate and recorded disapproval of a particular purchase at a certain price effectually arrested and abrogated any proceedings for such purchase, even though they had approached a complete contract. (1862) 10 Op. Atty. Gen. 171, 182. The action of the President, in matters relating to the Army, which require his approval and direction, may in general be signified through and authenticated by the head of the Department of War; and where the latter acts in such matters, be, in contemplation of law, acts under the direction of the President, and is to be regarded as the mere organ of the Executive will. (1877) 15 Op. Atty. Gen. 290. An order issued by the Secretary by direction of the President need not be authenticated by the President's sign manual, where his signature is not required by statute or Army regulation; especially where the order, instead of resting upon the implication of authority from their official relations, expressly recites that it is issued by direction of the President. (1881) 17 Op. Atty. Gen. 13, 19. Military commissions.-There being no statutory provision requiring a specified form of military commission, a letter of appointment from the Secretary of War may constitute such a commission and be conclusive evidence of appointment by the President. O'Shea v. U. S. (1893), 28 Ct. CI. 392, 400. Rules for administration of military establishment.-Rules and orders publicly promulgated through the Secretary of War, as the regularly constituted organ of the President for the administration of the military establishment of the Nation, must be received as the acts of the Executive, and as such be binding upon all within the sphere of his legal and constitutional authority. Such regulations can not be questioned or denied because they may be thought unwise or mistaken. U. S. v. Eliason (1842), 16 Pet. 291, 301, 10 L. Ed. 968. The power of the Secretary of War, under the President, to establish rules for the government of the Army is necessarily limited, and does not extend to the repcal or contradiction of existing statutes, nor to the making of provisions of a legislative nature. (1906) 26 Op. Atty. Gen. 6. Employment of agents, etc., and their compensation.-The Secretary of War, in the execution of his public duties, can not, in view of the provisions of act Aug. 23, 1842 (incorporated in R. S. sec. 1765, ante, 69), against extra compensation to public officers, employ and compensate collectors, etc., in the revenue service, for disbursing moneys appropriated for topographical purposes. (1845) 4 Op. Atty. Gen. 401. But he was vested with a discretion which authorized him to allow to the subagent for the Indians west of the Rocky Mountains, for such expenditures, not previously authorized, as he might have previously authorized as proper. (1846) 4 Op. Atty. Gen. 477. It was within the discretion of the Secretary of War to fix 30 days as the limit of the temporary duty to which a civilian clerk was assigned. Maxwell v. United States (1914), 49 Ct. Cl. 262. Obligations and expenditures.-The Secretary of War has no general or unlimited power to bind the Government by indorsing or accepting negotiable paper. Peirce v. U. S. (1865), 1 Ct. Cl. 270. The War Department had authority to send a surgeon to the International Medical Congress, at London, at the expense of the Government. It was a military service which the surgeon could be required to render. In re Billings (1888), 23 Ct. Cl. 166. But see Preston v. U. S. (1901), 37 Ct. Cl. 39. Personal military service of Secretary, and expenses thereof.-The Secretary of War is not required to perform duties in the field. He does not compose any part of the Army, and has no service to perform that may not be done at the seat of Government. If he leaves the seat of Government for the seat of war, by order of the President, for military purposes, he may be paid the expenses of the tour; otherwise not. (1821) 1 Op. Atty. Gen. 457. It is immaterial who proposed such service; if the President adopted the measure the Secretary should be paid the expeuses. (1821) 1 Op. Atty. Gen. 493. 490. Custody of property for the War Department.-The Secretary of War shall have the custody and charge of all the books, records, papers, furniture, fixtures, and other property appertaining to the Department. R. S. 217. See post, 1033 and notes thereto. The transfer of military rolls and records of the Civil War and prior wars from other departments to the War Department was provided for by act July 27, 1892 (27 Stat. 275), act Aug. 18, 1894, sec. 1, res. Apr. 28, 1904, No. 35, and act Mar. 2, 1913, post 521. Notes of Decisions. Funds involved in controversy.-Where funds in the hands of the Secretary of War are involved in a controversy between parties, pending under different forms of procedure in different jurisdictions, they should be retained by him until a final adjudication of the whole matter by the tribunal to which the parties may last resort. (1896) 21 Op. Atty. Gen. 447. Military reservations and property thereon. The Secretary's long-continued exercise of power to grant licenses to use Government reservations without legislative objection implies the tacit assent of Congress to this custom, but it can not be maintained upon any ground except that of benefit to the public interests. (1890) 19 Op. Atty. Gen. 628; (1898) 22 Op. Atty. Gen. 240. This section and R. S. sec. 161, ante, 175, do not authorize the granting of licenses for the occupation of parts of military reservations for the erection of hotels, church edifices, etc. (1897) 21 Op. Atty. Gen. 537. The Secretary of War has no power to accept, for the Government, a donation of property, as a church edifice, for use in perpetuity of Roman Catholics. Id. 491. Flags captured in war.-The Secretary of War shall from time to time cause to be collected and transmitted to him, at the seat of Government, all such flags, standards, and colors as are taken by the Army from the enemies of the United States. R. S. 218. Provisions for the disposition of certain Union and Confederate battle flags, in the custody of the department, were made by res. Feb. 28, 1905, No. 22 (33 Stat. 1284), and res. June 29, 1906, No. 43 (34 Stat. 837), but are omitted as temporary merely, and executed. 492. War Council.—The Secretary of War, the Assistant Secretary of War, the the general of the Army, and the Chief of Staff shall constitute the War Council of the War Department, which council shall from time to time meet and consider policies affecting both the military and munitions problems of the War Department. Such questions shall be presented to the Secretary of War in the War Council, and his decision with reference to such questions of policy, after consideration of the recommendations thereon by the several members of the War Council, shall constitute the policy of the War Department with reference thereto. Sec. 5b, added to the act of June 3, 1916, by sco. 5, act of June 4, 1920 (41 Stat. 765). * * * 493. Militia Bureau.-The Militia Division of the War Department shall hereafter be known as the Militia Bureau of the War Department. Sec. 81, act of June 3, 1916 (39 Stat. 203), as amended by sec. 44, act of June 4, 1920 (41 Stat. 782). For the creation and functions of the Division of Militia Affairs see Comp. G. O., Circ. and Bul. 1915, par. 168. The National Milltia Board, consisting of five officers on the active list of the Organized Militia, is referred to in sec. 81, act of June 3, 1916 (39 Stat. 203), as having been created by sec. 11, act of May 27, 1908 (35 Stat. 403), amending sec. 20, act of Jan. 21, 1903 (32 Stat. 779), although the board was not specifically designated therein by that title. The National Militia Board was abolished by said sec. 81, which, in addition to a provision like the above section, contained a declaration that the Militia Bureau, like other bureaus of the War Department, should be under the immediate supervision of the Secretary of War, and should not form a part of any other bureau, office, or organization. of the Militia Bureau shall be appointed by the President, by and with the advice and consent of the Senate, by selection from lists of present and former National Guard officers, recommended by the Governors of the several States and Territories as suitable for such appointment, who hold commissions in the Officers' Reserve Corps, who have had ten or more years commissioned service in the National Guard, at least five of which has been in the line, and who have attained at least the grade of major. He shall hold office for four years, unless sooner removed for cause, and shall have the rank, pay and allowances of a major general of the Regular Army during his tenure of office, but shall not be entitled to retirement or retired pay. While serving as chief, his reserve commission shall continue in force, and shall not be terminated except for cause assigned. Until the chief is appointed, as provided in this section, the President may assign an officer of the Regular Army, not below the grade of colonel, to perform the duties of chief Sec. 81, act of June 3, 1916 (39 Stat. 203), as amended by sec. 44, act of June 4, 1920 (41 Stat. 782). The Chief of the Militia Bureau was ex officio a member of the General Staff Corps until the enactment of sec. 5, act of June 4, 1920 (41 Stat. 762). * * * * 495. Assignment to the Militia Bureau.—* For duty in the Militia Bureau and for the instruction of the National Guard the President shall assign such number of officers and enlisted men of the Regular Army as he may deem necessary. Sec. 81, act of June 3, 1916 (39 Stat. 203), as amended by sec. 44, act of June 4, 1920 (41 Stat. 782). * * * 496. Composition of the Finance Department.-There is hereby created a Finance Department. The Finance Department shall consist of one Chief of Finance with the rank of brigadier general, one hundred and forty-one officers in grades from colonel to second lieutenant, inclusive, and nine hundred enlisted Sec. 9a, added to the act of June 3, 1916, by sec. 9, act of June men. * 4, 1920 (41 Stat. 766). On June 12, 1918, the financial activities of the Office of the Quartermaster General were consolidated under an assistant to the Acting Quartermaster General in charge of finance. Two divisions were organized under this officer, known as the Finance and Accounts Division and the Central Disbursing Division, the latter taking over functions formerly exercised by the depot quartermaster, Washington, D. C., in the settlement of transportation accounts and accounts for expressage. The Finance Service was organized as an independent operating bureau of the War Department by Supply Circular No. 98, dated Oct. 11, 1918, and a memorandum from the Assistant Chief of Staff (Director of Purchase, Storage, and Traffic), dated Apr. 11, 1919, in part is as follows: "1. An assistant to the Director of Purchase, Storage, and Traffic, as Director of Finance, shall have responsibility and authority over the preparation of estimates, disbursements, money accounts, property accounts, finance reports, and pay and mileage of the Army. "2. The Director of Finance shall assume authority over and responsibility for the activities, personnel, and equipment of the several finance and accounts divisions, branches, and offices of the General Staff, and of the supply corps of the Army, and shall assume authority over and responsibility for the finances of the Army, including the accounting for funds and property. The Director of Finance shall issue directions as to the order of such consolidation, together with such other instructions, regulations, and orders as shall be necessary to carry out the provisions of this circular." |