No contract to exceed appropriation.

or about to be purchased, for erection of public buildings) in their possession, to furnish them forthwith to the Attorney-General. No public money shall be expended until the written opinion of the Attorney-General shall be had.2

1623. No contract shall be entered into for the erection, July 25, 1868, c. repair, or furnishing of any public building, or for any 233, s. 3, v. 15, P. public improvement, which shall bind the Government to Sec.3733, R.S. pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose.3

177.

Expenditures exceeding $500.

23, p. 111; Feb. 27,

4

1624. That hereafter no expenditures exceeding five July 5, 1884, v hundred dollars shall be made upon any building or mili1893, v. 27, p. 484. tary post, or grounds about the same, without the approval of the Secretary of War for the same, upon detailed estimates by the Quartermaster's Department; and

'The act of February 27, 1877 (19 Stat. L., 242), contains a requirement “that it shall be the duty of all officers of the United States having any of the title papers (of property purchased, or about to be purchased, for the erection of public buildings) in their possession, to furnish them, forthwith, to the Attorney-General. No public money shall be expended until the written opinion of the Attorney-General shall be had."

All papers relating to the Washington Aqueduct and public buildings and grounds in the District of Columbia will be filed in the office of the Chief of Engineers. All other deeds and papers pertaining to the title or sale of, and any lease, grant, license, or easement of, upon, or over any military reservation or other lands under the jurisdiction of the War Department, will be filed in the office of the Judge-AdvocateGeneral. When any such papers come into the possession of any bureau they shall within five days thereafter be transferred to the office of the Judge-Advocate-General. Par. 786, A. R., 1901.

See paragraph 334, ante.

The custody of a public building, in the absence of a statute, an appropriation, a regulation, or the order of the head of an Executive Department, is vested in the officer having it in his official possession. Gray v. U. S., 23 Ct. Cls., 323.

A military station is merely synonymous with the term "military post," and means a place where troops are assembled; where military stores, animate and inanimate, are kept and distributed; where military duty is performed or military protection afforded; where something, in short, more or less closely connected with arms or war is kept or is to be done. Phisterer v. U. S., 12 Ct. Cls., 98, 107.

POSTS.

Permanent military posts are established under the direction of the Secretary of War, by whom their names will be designated. Par. 216, A. R., 1901.

Permanent posts will be styled "forts," and points occupied temporarily by troops, "camps." Par. 217, ibid.

The commander of a post is responsible for its safety and defense, and for the discipline, drill, and tactical instruction of his command, to which ends all other garrison duties will be made subservient. He will be responsible for the preservation and proper application of public property, for the strict enforcement of laws and regulations, and for the proper condition of quarters and defenses. He will make an inspection of his command on the last day of every month, will satisfy himself by frequent personal examination that the disbursements of all officers in charge of funds are in accordance with law and regulations and their accounts correctly stated, and will make such reports of these inspections and examinations as the department commander may direct. Par. 218, ibid.

The staff of a post commander will consist of such staff officers as are on duty at the post and such line officers as may be required for staff duties. Their official designations will be as follows: Adjutant, quartermaster, commissary, surgeon, assistant surgeon, engineer officer, ordnance officer, and signal officer. Par. 221, ibid.

the erection, construction, and repair of all buildings and other public structures in the Quartermaster's Department shall, as far as may be practicable, be made by contract, after due legal advertisement.' Act of February 27, 1893 (27 Stat. L., 484).

cost of artillery June 6, 1900, v.

1625. For the erection of barracks and quarters for Limitation on artillery in connection with the project adopted for sea- posts. coast defense, there shall not hereafter be expended at 31, p. 624. any one post more than one thousand two hundred dollars per man for each man required for one relief to man the guns at the post up to eighty-three men, the present permanent strength of a battery, enlisted and commissioned, and for each man required beyond this number six hundred dollars per man, from any appropriation made by Congress, unless special authority of Congress be granted for a greater expenditure. Act of June 6, 1900 (31 Stat. L., 624).

POST TRADERS.

to be filled.

Jan. 28, 1893, v.

1626. That where a vacancy now exists or hereafter, Vacancies not occurs in the position of post trader at any military post it shall not be filled, and the authority to make such appointment is hereby terminated: Provided, That in the event of the death of a post trader his personal representative shall be allowed by the Secretary of War a reasonable time in which to close the business." Act of January 28, 1893 (27 Stat. L., 426).

'For other restrictions in respect to the construction and repair of quarters at military posts, see the title Barracks and Quarters in the chapter entitled THE QUARTERMASTER'S DEPARTMENT.

Expenditures of labor, money, or material upon posts will be strictly limited to the amounts allowed by law and regulations. Par. 222, A. R., 1901.

When practicable, temporary buildings for the use of the Army will be erected by its enlisted force, and necessary repairs of public buildings at garrisoned posts not appropriated for or specially authorized will be made by the troops. Par. 223, ibid. În case of emergency, when reference to higher authority is impracticable, department commanders may order the purchase of material and engagement of services necessary for the preservation of public buildings or property, not to exceed in amount $500 for any post, but no greater sum will be expended without the sanction of the Secretary of War. Par. 224, ibid.

When a military post located upon lands belonging to the United States is abandoned the Secretary of War has no power, in the absence of authority from Congress, to order a sale of the building, and such a sale is void. Lear v. U. Š., 50 Fed. Rep., 65. A sale by a military officer if not authorized by the usages of war, or if of property not under a valid condemnation, is a trespass and passes no title. Bowlew v. Lewis, 48 Mo., 32.

2 Section 1113 of the Revised Statutes, which authorized the Secretary of War to "permit one or more trading establishments to be maintained at any military post on the frontier not in the vicinity of any city or town," was repealed and replaced by section 3 of the act of July 24, 1876 (19 Stat. L., 100), which authorized "one trader at each military post, to be appointed by the Secretary of War upon the recommendation of the council of administration." These statutes have been replaced and rendered inoperative by the act of January 28, 1893 (27 Stat. L., 426).

H. Doc. 545- -40

Post schools.

Sec. 27, July 28,

Sec. 1231, R. S.

POST SCHOOLS.

1627. Schools shall be established at all posts, garrisons, 1866, v. 14, p. 336. and permanent camps at which troops are stationed, in which the enlisted men may be instructed in the common English branches of education, and especially in the history of the United States; and the Secretary of War may detail such officers' and enlisted men as may be necessary to carry out this provision. It shall be the duty of the post or garrison commander to set apart a suitable room or building for school and religious purposes.

Post bakeries,

schools, kitch

June 13, 1890, v.

26, p. 152.

POST BAKERIES.

1628. That for the current fiscal year and thereafter there ens, gardens, etc. may be expended from the appropriation for regular supplies the amounts required for the necessary equipments of the bakehouse to carry on post bakeries; for the necessary furniture, text-books, paper, and equipments of the post schools; for the tableware and mess furniture for kitchens and mess halls; * each and all for use of the enlisted men of the Army. Act of June 30, 1890 (26 Stat. L., 152).

Post exchanges

and post gar

dens.

27, p. 178.

2

POST EXCHANGES.

*

1629. That hereafter no money appropriated for the supJuly 16, 1892, v. port of the Army shall be expended for post gardens or exchanges; but this proviso shall not be construed to pro hibit the use, by post exchanges, of public buildings or public transportation when, in the opinion of the Quartermaster-General, not required for other purposes. Act of July 16, 1892 (27 Stat. L., 178).

Sale of beer,

wine, etc., pro

hibited.

1630. The sale of or dealing in beer, wine, or any intoxiFeb. 2, 1901, s. cating liquors by any person in any post exchange or can38, v. 31, p. 758. teen or Army transport or upon any premises used for

military purposes by the United States is hereby prohibited. The Secretary of War is hereby directed to carry the provisions of this section into full force and effect.3 Sec. 38, act of February 2, 1901 (31 Stat. L., 758).

For statutory duties of post and regimental chaplains in respect to post schools, see the chapter entitled POST CHAPLAINS. For regulations in regard to post schools, see paragraphs 355-362, Army Regulations of 1901. For provisions of statutes respecting text-books, supplies of paper, etc., see paragraph 1223, post.

For regulations in respect to the management and administration of post bakeries, see paragraphs 335-340, Army Regulations of 1901.

This section replaces the requirements of the act of June 13, 1890 (26 Stat. L., 154), and section 17 of the act of March 2, 1899 (30 ibid., 937), in pari materia. For orders carrying this provision into effect, see paragraph 365, Army Regulations of

quire and disvested in Con

1631. The Congress shall have power to dispose of and Power to acmake all needful rules and regulations respecting the ter- pose of property ritory or other property belonging to the United States. 2 gress. Constitution, Art. IV, sec. 3.

See also the chapter entitled CONTRACTS AND PURCHASES. 2 See note to paragraph 1615, ante.

Art. IV, sec. 3, Constitution.

The provision of the Constitution in regard to the disposition of public property applies to personalty equally as to realty. Thus no Executive Department or officer can be empowered, except by the authority of Congress, to dispose of personal property of the United States. (a) So, held that, in the absence of such authority, a military commander could not legally dispose of temporary buildings-not "fixtures"-erected upon a military reservation. So, held that the Secretary of War would not be authorized, in the absence of enabling legislation, to sell or negotiate the bonds or promissory notes made to the United States by certain railroad companies, in consideration of rolling stock, etc., sold and transferred to the same. And similarly held as to the authority of the Secretary to dispose of articles of inferior value, not impliedly authorized to be sold by section 1316, Revised Statutes. And held that the fact that certain valuable public property was perishable and liable to waste was not legally sufficient to justify the sale in the absence of statutory authority. Held that the Cavalry Tactics, a work prepared under the orders of the Secretary of War by a board of officers, was the property of the United States, and therefore could not, without the authority of Congress, be disposed of to a bookseller with

a The leading case on this point is United States v. Nichols (1 Paine, U. S. Circ. Ct. R., 646), in which it was held that a sale or loan, by the commandant of an arsenal, of a quantity of lead belonging to the United States was illegal and invalid. The court say: "The Constitution declares that 'Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' No public property can therefore be disposed of without the authority of law, either by an express act of Congress for that purpose or by giving the authority to some Department or subordinate agent. No law has been shown authorizing the sale of this lead, nor is any such authority to be inferred from the general power vested in any of the Departments of the Government. The power, if lodged anywhere, would seem most appropriately to belong to the War Department; but there is no such express or implied power in that Department to sell the public property put under its management." And see the same principle recognized in an opinion of the Attorney-General (in XVI Opins., 477), in which it is held that the Secretary of War was not empowered to sell arms to a State in the absence of authority from Congress.

Accountability of company commander for clothing, etc.

1632. Every officer commanding a troop, battery, or company is charged with the arms, accouterments, ammuni10 Art. War. tion, clothing, or other military stores belonging to his command, and is accountable to his colonel in case of their being lost, spoiled, or damaged otherwise than by unavoidable accident, or on actual service.' Tenth Article of War.

Property re

turns.

loss to be for

ury accounting

officers.

Mar. 29, 1894, v. 28, p. 47.

PROPERTY ACCOUNTABILITY.

1633. That instead of forwarding to the accounting offiCertificates of cers of the Treasury Department returns of public propwarded to Treas- erty intrusted to the possession of officers or agents, the Quartermaster-General, the Commissary-General of Subsistence, the Surgeon-General, the Chief of Engineers, the Chief of Ordnance, the Chief Signal Officer, the PaymasterGeneral of the Navy, the Commissioner of Indian Affairs, or other like chief officers in any Department, by, through, or under whom stores, supplies, and other public property are received for distribution, or whose duty it is to receive or examine returns of such property, shall certify to the proper accounting officer of the Treasury Department, for debiting on the proper account, any charge against any officer or agent intrusted with public property, arising from any loss, accruing by his fault, to the Government as to the property so intrusted to him. Sec. 1, act of March 29, 1894 (28 Stat. L., 47).

2

a view to its publication and sale by him on his private account. Dig. Opin. J. A.G., par. 2090.

Temporary buildings only erected by military orders on land of the United States at a military post, to serve a temporary purpose, are in general personal property of the United States which may be removed by the direction or authority of the Secretary of War. (a) But if the same be permanent structures and real estate, the authority of Congress is necessary to their removal. Ibid., par. 2098.

1 Under existing laws and regulations there is no system of fiscal accountability to regimental commanders for property belonging to the United States. For statutory provisions respecting such accountability see the title Property Accountability. The effect of the above statute was to divest the Auditor of the jurisdiction theretofore possessed by him over the property accounts and transactions of officers of the Navy (and War) Department, and to relieve him of all responsibility in relation to the disposition of property intrusted to said officers, except in cases where the officer "whose duty it is to receive or examine returns of such property shall certify to the proper accounting officer of the Treasury Department (the Auditor), for debiting on the proper account any charge against any officer or agent intrusted with public property, arising from any loss, accruing by his fault, to the Government as to the property so intrusted to him."

Under this act the duty and responsibility of determining questions relating to the correct disposition or loss of property in the Marine Corps have been transferred to and vested in the proper officer of the Navy Department, and it seems clear that the Auditor will have no authority over or in relation to the property mentioned in the cash voucher evidencing the purchase of forage under consideration until he has been furnished with a certificate required by section 1 of said act.

Jurisdiction over property accounts can not be given to the Auditor by injecting

a But such buildings can not be sold without the authority of Congress. Lear v. U. S., 50 Fed. Rep., 65.