the pension is asked or claimed. This proviso shall not apply to or affect the widow of any soldier, sailor, marine, officer, or marine officer serving or who has served in the war between the United States and the Kingdom of Spain. Act of Mar. 3, 1899 (30 Stat. 1380). 1500. Dependent relatives. If any person embraced within the provisions of sections forty-six hundred and ninety-two and fortysix hundred and ninety-three has died since the fourth day of March, eighteen hundred and sixty-one, or shall hereafter die, by reason of any wound, injury, casualty, or disease, which, under the conditions and limitations of such sections, would have entitled him to an invalid pension, and has not left or shall not leave a widow or legitimate child, but has left or shall leave other relative or relatives who were dependent upon him for support, in whole or in part, at the date of his death, such relative or relatives shall be entitled, in the following order of precedence, to receive the same pension as such person would have been entitled to had he been totally disabled, to commence from the death of such person, namely: First, the mother; secondly, the father; thirdly, orphan brothers and sisters under sixteen years of age, who shall be pensioned jointly: Provided, That where orphan children of the same parent have different guardians, or a portion of them only are under guardianship, the share of the joint pension to which each ward shall be entitled shall be paid to the guardian of such ward: Provided, That if in any case said person shall have left father and mother who were dependent upon him, then, on the death of the mother, the father shall become entitled to the pension, commencing from and after the death of the mother; and upon the death of the mother and father, or upon the death of the father and the remarriage of the mother, the dependent brothers and sisters under sixteen years of age shall jointly become entitled to such pension until they attain the age of sixteen years, respectively, commencing from the death or remarriage of the party who had the prior right to the pension: Provided, That a mother shall be assumed to have been dependent upon her son within the meaning of this section if, at the date of his death, she had no other adequate means of support than the ordinary proceeds of her own manual labor and the contributions of said son or of any other persons not legally bound to aid in her support; and if, by actual contributions, or in any other way, the son had recognized his obligations to aid in support of his mother, or was by law bound to such support, and that a father or minor brother or sister shall, in like manner and under like conditions, be assumed to have been dependent, except that the income which was derived or derivable from his actual or possible manual labor shall be taken into account in estimating a father's means of independent support: Provided further, That the pension allowed to any person on account of his or her dependence, as hereinbefore provided, shall not be paid for any period during which it shall not be necessary as a means of adequate subsistence. Sec. 4707, R. S. 1501. Remarriage of widow or dependent mother or sister. The remarriage of any widow, dependent mother, or dependent sister entitled to pension shall not bar her right to such pension to the date of her remarriage, whether an application therefor was filed before or after such marriage; but on the remarriage of any widow, dependent mother, or dependent sister having a pension such pension shall cease: Provided, however, That any widow who was the lawful wife of any officer or enlisted man or other person in the Army, Navy, or Marine Corps of the United States, as described in paragraphs one, two, and three of section forty-six hundred and ninetythree of the Revised Statutes of the United States, during the period of his service in any war, and whose name was placed or shall hereafter be placed on the pension roll because of her husband's death as the result of wound or injury received or disease contracted in such military or naval service, and whose name has been or shall hereafter be dropped from said pension roll by reason of her marriage to another person who has since died or shall hereafter die, or from whom she has been heretofore or shall be hereafter divorced, upon her own application and without fault on her part, and if she is without means of support other than her daily labor, as defined by the Acts of June twenty-seventh, eighteen hundred and ninety, and May ninth, nineteen hundred, shall be entitled to have her name again placed on the pension roll at the rate now provided for widows by the Acts of July fourteenth, eighteen hundred and sixty-two, March third, eighteen hundred and seventy-three, and March nineteenth, eighteen hundred and eighty-six, such pension to commence from the date of the filing of her application in the Pension Bureau after the approval of this Act: And provided further, That where such widow is already in receipt of a pension from the United States she shall not be entitled to restoration under this Act: And provided further, That where the pension of said widow on her second or subsequent marriage has accrued to a helpless or idiotic child, or a child or children under the age of sixteen years, she shall not be entitled to restoration under this Act unless said helpless or idiotic child, or child or children under sixteen years of age, be then a member or members of her family and cared for by her, and upon the restoration of said widow the payment of pension to said child or children shall cease. Sec. 4708, R. S., as amended by Sec. 1, Act of Feb. 28, 1903 (32 Stat. 920). every month, transmit through the proper channels, to the Department of War, an exact return of the same specifying the names of the officers then absent from their posts, with the reasons for and the time of their absence. And any officer who, through neglect or design, omits to send such returns, shall, on conviction thereof, be punished as a court-martial may direct. ART. 8. Every officer who knowingly makes a false return to the Department of War, or to any of his superior officers authorized to call for such returns, of the state of the regiment, troop, or company, or garrison under his command; or of the arms, ammunition, clothing, or other stores thereunto belonging, shall, on conviction thereof before a court-martial, be cashiered.1 are required, within the period for which he agrees to serve; conseqeuntly the Sovereign has always had power to discharge the soldier. But a soldier can not be discharged except by order of the Sovereign or by statutory power, such as the sentence of a court martial, to which is added in the Army act, an 'order of the competent military authority.' "A soldier on his discharge is entitled to receive a certificate of discharge, so as to show that he is properly discharged and is not a deserter." This clearly shows the difference between the act of discharge and the certificate of discharge, and may be accepted as a correct statement of the law, except perhaps when enlistments were for life. The history of the article does not therefore require the construction that the delivery of a certificate of discharge is necessary to a valid discharge and that a soldier can not get out of service without a written discharge. Nor will an application of the well-established rules of construction lead to such a conclusion. Whatever may have been the meaning of the article when the term of service was for life, it seems clear that when the enlistment is for a term of years only, and the soldier, therefore, has a legal right to his discharge on the expiration of the term, this right can not be set at naught by his forcible retention in the service. If this should be attempted he would be protected by the (Federal) civil courts, who would not hesitate to release him from the military service on a writ of habeas corpus, without any regard to a military discharge. But the military discharge in writing is prescribed as a regular procedure in terminating the service, and its issuance is, therefore, an act done in the performance of a public duty; and the most reasonable construction of the 4th Article of War is that it is a direction as to the manner of performing a public act, and that, in the absence of language making it impossible to give it this meaning, it is to be regarded as directory only. For the foregoing reasons and in consideration of long-established practice, held, that a certificate of discharge is not necessary to a discharge, but that a soldier may be discharged without a certificate or before he is furnished with & certificate, upon notice actual or constructive, and that when volunteers are mustered out it is that act that separates them from the service. From report of Judge Advocate General, January 2, 1901. (See Card 9556-W. D. Cir., Feb. 15, 1901.) As to discharge by purchase or on account of dependent parent, see para. —, ante. For decisions upon discharge, see Dig. Op., J. A. G., pp. 433-463. This article refers only to returns made by certain commanders as such, It is only as commander of a regiment, company, or garrison that an officer can be made amenable to a charge under the article. An officer not exercising one of these commands is not within its terms. (Dig. Opin. J. A. Gen., par. 1. Ed. 1901.) In 1872 an officer of the line of the Army, on duty as post quartermaster at Paducah. Ky., was tried for a violation of this article in making false returns of the property for which he was responsible, and was convicted. As the article applies exclusively to officers exercising the specific commands named in the statute, and as the officer in this exercised no one of the commands so specified, the findings under the eighth article were disapproved by the reviewing au at a suitable place or places, a site or sites for the Soldiers' Home, and if the necessary buildings can not be procured with the sites, to have the same erected, having due regard to the health of the locations, facility of access, and economy, and giving preference to such places as, with the most convenience and least cost, will accommodate the persons entitled to the benefits of the Soldiers' Home. Sec. 4817, R. S. 1504. Same. - The board of commissioners of the Soldiers' Home shall every year report in writing to the Secretary of War, giving a full statement of all receipts and disbursements of money, of the manner in which the funds are invested of any changes in the investments and the reasons therefor, of all admissions and discharges, and generally of all facts that may be necessary to a full understanding of the condition and management of the Home. The Secretary of War shall have power to call for and require any omitted facts which in his judgment should be stated to be added. This annual report shall be, by the Secretary of War, together with the 3, 1851 (9 Stat. 595). a For the support of the institution thus established the following funds were set apart: (a) Any unexpended balance of the appropriation made by the act of March 2, 1847 (9 Stat. 149), for the benefit of soldiers disabled by wounds; (b) the sum of $118,791.19, levied by the commanding general of the Army of the United States in Mexico, during the war with that republic, for the benefit of the soldiers of the United States Army, regulars and volunteers, who were engaged in that war, but taken possession of as funds of the United States and placed in the Treasury; (c) all stoppages and fines adjudged against soldiers by sentence of court-martial, over and above any amount that may be due for the reimbursement of Government or of individuals; (d) all forfeitures on account of desertion; (e) all moneys, not exceeding two-thirds of the balance on hand of the hospital fund, and of the post fund of each military station, after deducting the necessary expenses of the year; and (f) all moneys belonging to the estates of deceased soldiers, which now are or may hereafter be unclaimed for the period of three years subsequent to the death of said soldier or soldiers, to be repaid by the com-. missioners of the institution, upon the demand of the heirs or legal representatives of the deceased; b there shall also be "deducted from the pay of every noncommissioned officer, musician, artificer, and private of the Army of the United States the sum of 25 cents c per month, which sum so deducted shall, by the Pay Department of the Army, be passed to the credit of the commissioners of the asylum, who are hereby authorized to receive all donations of money or property made by any person or persons for the benefit of the institution, and hold the same for its sole and exclusive use." (Sec. 7, act of March 3, 1851, 9 Stat. 596.) In passing upon recommendations made by the board of commissioners of the Soldiers' Home, under section 4815 of the Revised Statutes, the Secretary of War is invested with a discretionary power to approve or disapprove the same. (XVII Opin. Att. Gen., 449.) a The act of Congress establishing the Military Asylum does not constitute the commissioners a corporation with capacity to sue and be sued. (V Opin. Att. Gen., 398; see note 1 to paragraph 1512, post.) This clause was repealed by section 2 of the act of July 5, 1862 (12 Stat. 508). c The deduction from the monthly pay of enlisted men, fixed at 25 cents per month by section 7, act of March 3, 1851 (9 Stat. 596), was reduced to 12 cents by section 7, act of March 3, 1859 (11 Stat. 424), and was abolished by the act of May 11, 1908 (35 Stat. 110). report of the inspecting officer hereinafter provided for, transmitted to Congress at the first session thereafter, and he shall also cause the same to be published in orders to the Army, a copy thereof to be deposited in each garrison and post library. Sec. 1, Act of Mar. 3, 1883 (22 Stat. 564). 1505. Officers. The officers of the Soldiers' Home shall consist of a governor, a deputy governor, and a secretary, for each separate site of the home, the latter to be also the treasurer; and the officers shall be taken from the Army and appointed or removed, from time to time, as the interests of the institution may require, by the Secretary of War, on the recommendation of the board of commissioners." Sec. 4816, R. S. 1506. Same-Selection-Treasurer required to give bond. The governor and all other officers of the Home shall be selected by the President of the United States, and the treasurer of the Home shall be required to give a bond in the penal sum of twenty thousand dollars for the faithful performance of his duty. Sec. 7, Act of Mar. 3, 1883 (22 Stat. 565). 1507. Funds for the support of the Home, how obtained.-For the support of the Soldiers' Home the following funds are set apart and are hereby appropriated: All stoppages or fines adjudged against soldiers by sentence of courts-martial over and above any amount that may be due for the reimbursement of Government or of individuals; all forfeitures on account of desertion; and all moneys belonging to the estates of deceased soldiers which are or may be unclaimed for the period of three years subsequent to the death of such soldiers, to be repaid by the commissioners of the institution upon the demand of the heirs or legal representatives of the deceased. Sec. 4818, R. S. 1508. Same. There shall be deducted from the pay of every noncommissioned officer, musician, artificer, and private of the Army of the United States the sum of twelve and a half cents per month, which sum so deducted shall by the Pay Department of the Army Section 2 of the Act of March 3, 1883, provides for an annual inspection of the Home by the Inspector General of the Army. (See par. 464, ante, under the chapter entitled, The Inspector General's Department.) 3 The commissioners of the Soldiers' Home may permit the governor, deputy governor, and treasurer of the Home, who are retired officers of the Army and who reside at the Home, to make use of ordinary supplies of fuel, light, forage, etc., produced at the Home or purchased for it, and they may pay the treasurer, out of the funds of the Home, a salary for his services. (XX Opin. Att. Gen., 350.) See Dig. Opin. J. A. G., pp. 1010 and 1011, edition, 1912. The board of commissioners of the Soldiers' Home can not delegate to the governor of the Home discretionary police authority for the preservation of good order within its limits. (XX Opin. Att. Gen., 514.) They can not empower him to arrest, detain, or deliver over to the court authorities nonmilitary persons committing crimes less than capital, except in the cases where any person may make an arrest without warrant or precept. (Id.) |