CHAPTER 1 THE ARMY OF THE UNITED STATES Army of the United States: Composition, 2. Commissioned strength: Authorized by appropriations, 7a. Enlisted strength: Maximum in time of peace, 15. Retired list, unlimited, 17. Army bands; number restricted, 17a. Designation, composition, and organiza- Flying officers in time of peace defined, 32. Exhibition flights, 39. Prevention of forest fires, 40. Corps of Engineers: Composition and organization, 41. Signal Corps: Chief Signal Officer; duties, 48. General Staff Corps: Composition, 50. Chief of Staff; rank, pay and allow ances, 51. General Staff Corps; duties, 53. Chief of Staff; duties, 54. Military attachés; number restricted, 56a. Adjutant General's Department: Assistant adjutants general; duties, 60. Judge Advocate General's Department: Judge advocates; duties, 64. Composition, 68. Medical Department: Medical Corps; composition, 74. Chief of Ordnance; duties, 82. Composition, 83. Bureau of Insular Affairs: Establishment and duties, 86. National Guard Bureau: Establishment and composition, 89. Vacancy in office or disability of Chaplains: Duties, 94. At recruit stations, 96. At recruit depots, 97. At remount depots, 98. Philippine Scouts: Composition and organization, 103. Recommission, 105. Concurrent commissions in drafted forces, 108. 2. Army of the United States; composition. That the Army of the United States shall consist of the Regular Army, the National Guard of the United States, the National Guard while in the service of the United States, the Officers' Reserve Corps, the Organized Reserves, and the Enlisted Reserve Corps. Sec. 1, act of June 3, 1916 (39 Stat. 166), as amended by sec. 1, act of June 4, 1920 (41 Stat. 759), as amended by sec. 1, act of June 15, 1933 (48 Stat. 153); U. S. C. 10: 2. This section has been amended to read as above. 7. Commissioned strength; maximum. That, for the period of ten years beginning July 1, 1936, the Secretary of War is authorized to select annually, in addition to the graduates from the United States Military Academy, fifty officers who shall be commissioned in the Regular Army Sec. 2, act of Aug. 30, 1935 (49 Stat. 1028); U. S. C. 10: 487a. Clause 17. Lands Purchased Acceptance of cession.-Acceptance of ces- Act of 1899 should be complied with in sion of State may be implied from use, and the matter of sites, not exceeding 2 acres use for military purposes does not restrict in extent, for "post offices and other govthe Government's title to that use. Colum- ernmental offices" in cities or villages, as bia River Packers' Ass'n, Inc., v. U. S. has been done in the past; and Act of 1896, (C. C. A., 1928) 29 F. (2d) 91. supra, should be complied with in the matter of other acquisitions of land embraced within the scope of its language. (1929) 36 Op. Atty. Gen. 86. Reservations by State.-Service of process on lands ceded to Federal Government by State with reservation of right to serve process therein, does not interfere with supremacy of United States over such lands (14 Stat. 396). Manlove v. McDormott (Pa., 1932), 162 Atl. 278. Service of summons on navy lieutenant in navy yard, without commanding officer's leave held not invalid so as to deprive court of jurisdiction of person served. Id. Service of summons on navy lieutenant in navy yard by sheriff entering with commandant's permission held not invalid because made while lieutenant was standing beside his ship and engaged in work thereof. Id. The consent required by 944 post, is that contemplated and spoken of in Article I, section 8, clause 17, of the Constitution, and must be free from qualifications, conditions, or reservations inconsistent with the exercise by Congress of "exclusive legislation" over the place ceded. Provisions in the State act of cession that Federal construction shall be subject to State labor and health laws, and that the State may tax private property on the premises not belonging to the United States, are incompatible with exclusive jurisdiction and do not meet the requirements of this section. 38 Op. Atty. Gen. No. 26, Oct. 18, 1935. There is no objection to the reservation, in a State act ceding lands to the Government, of the right to tax private property and to serve process on the affected premises, provided such reservations are inconsistent with the effective use of the lands by the Government. 38 Op. Atty. Gen. No. 4, May 28, 1935. not Effect of cession.-N. Y. Laws 1896, c. 391, and N. Y. Laws, 1929, c. 242, as they have been respectively amended, express the consent of the legislature of the State of New York to the acquisition of land by the United States within their respective limitations. Federal Government, when acquiring territory from State, takes territory subject to all State laws applicable to ceded territory at time of cession, not contrary to Federal laws, until Congress passes laws inconsistent with State law (State Law, sec. 29, subd. 18; Const. U. S. art 1, sec. 8, cl. 17). In re Kernan (1936), 288 N. Y. Supp. 329. Where jurisdiction to grant writ of habeas corpus to determine custody of child within territory was in New York courts at time State ceded territory to United States for military reservation, and Congress had not passed any law giving Federal courts such jurisdiction, New York court, and not Federal court, had jurisdiction to entertain mother's habeas corpus proceeding to inquire into cause of father's detention of infant daughter on reservation (State Law, sec. 29, subd. 18; Civil Practice Act, sec. 64; Const. U. S. art. 1, sec. 8, cl. 17). Id. Scope of clause.-The term "other needful buildings" as used in this section and in State acts of cession, should be construed liberally. Lands acquired for the erection of Naval air stations are held to be covered thereby. Mss. Op. Atty. Gen. Jan. 30, 1935. Where a tract within a State has been acquired by the United States for a navy yard, with the consent of the State legislature and the legislature has ceded to the United States the State's jurisdiction over it saving only the right to serve process, a State law subsequently passed to regulate rights and remedies for death by negligence can have no operation over the tract save as it may be adopted by Congress. Murray v. Gerrick & Co. (1934), 291 U. S. 315, affirming (Wash. 1933) 20 P. (2d) 591. Clause 18. Incidental Powers Incidental powers.-The authority of Con- | part of the Government where no legal liagress to prescribe the basis on which a claim shall be adjudicated, that is, the conditions under which a citizen may be compensated for losses suffered under a contract, or otherwise, or to create a liability on the bility in fact exists, and to waive any legal defense on the part of the Government, is no longer subject to question. Thomas C. Edwards v. U. S. (1934), 79 Ct. Cls. 436. AMENDMENT V. RIGHTS OF PERSONS Private Property NOTES OF DECISIONS In general.-Protection of constitutional | Government, there may be claimed and alprovision prohibiting taking of private lowed, in the form of interest, such addition property for public use by United States to the value of the property at the time of without just compensation cannot be de- the taking as will produce the full equivanied (Const. Amend. 5). U. S. v. Wheeler lent of that value paid contemporaneously TP (C. C. A. 1933), 66 F. (2d) 977, 978. with the taking. Jacobs et al. v. U. S. (1933), 290 U. S. 13. The obligation of the United States to pay just compensation for private property taken under its power of eminent domain rests upon the Fifth Amendment, independent of statute or express promise. Jacobs et al. v. U. S. (1933), 290 U. S. 13, reversing (C. C. A. 1933) 63 F. (2d) 326. A promise to pay is implied because the duty is imposed by the Amendment. Id. Constitutional requirement of just compensation for property taken for public use was not suspended by war. U. S. v. McIntosh (D. C. 1932), 2 F. Supp. 245. Company in building railroad along bank of navigable river had right to rely upon continued maintenance of natural level, width, and flow thereof, and right to increase artificially such level, width, and flow to railroad's injury beyond that provided by nature could be obtained by United States only by exercise of right of eminent domain, and payment of just compensation (33 U. S. C. A. 591, Act Jan. 21, 1927, 44 Stat. 1010; Const. Amend. 5). United States v. Chicago, B. & Q. R. Co. (C. C. A. 1936) 82 F. (2d) 131. Amount and elements of compensation.Under Constitution requiring "just compensation" only damages to residue of tract are allowable besides value of parcel taken by Government. U. S. v. Crary et al. (D. C. 1932), 2 F. Supp. 870. If fixtures can be removed without substantial injury either to realty or to fixtures, they remain personalty, and need not be taken as part of realty as respects liability therefor in Federal condemnation proceed. ings. Futrovsky et al. v. U. S. (App. D. C. 1933), 66 F. (2d) 215. In absence of legislation by Congress, costs and attorneys' fees incurred by landowner in condemnation proceeding brought by Government held not allowable against Government as part of "just compensation" for property taken. U. S. v. Certain Lands in Washington and Dakota Counties et al. (D. C. 1932), 2 F. Supp. 324. Just compensation for property taken for war purposes included interest for period between time of taking and full payment. Act of July 1, 1918 (40 Stat. 704, 724), U. S. v. McIntosh et al. (D. C. 1932), 2 F. Supp. 244. In a suit under the Tucker Act to recover just compensation for property taken by the Plaintiffs allowed just compensation for the exclusive use and occupation of their land as a camp site and artillery range, taken over by the Government under its military powers in time of war. Interest allowed as part of just compensation from the date of relinquishment of the property by the Government to the date of payment. Included also in just compensation is the cost of locating, excavating, and removing or exploding unexploded shells left buried in the ground. West v. U. S. (1931), 73 Ct. Cls. 201. Where the use of plaintiff's property was taken by the Government and thereafter the fee, the plaintiff is entitled to just compensation for the use in addition to that for taking of the fee, and the just compensation to be awarded includes interest at a proper rate from the termination of the use (acquirement of the title) to the date paid. Hamburg-American Co. v. U. S. (1932), 74 Ct. Cls. 360. The fact that the statute under which the taking was accomplished made no provision for just compensation does not affect plaintiff's right thereto, which arises under the guaranty of the Fifth Amendment, out of an implied contract to pay just compensa In condemnation proceeding, compensation is allowable for proximate damages to remaining parts of parcel of land when some part thereof has been actually taken (Const. Amend. 5). United States v. Chicago, B. and O. R. Co. (C. C. A. 1936), 82 F. (2d) 131. Consequential damage. The owners of the "Tarbert" and "Receiver" sand and gravel bars in the bed of the Mississippi River are not entitled to compensation for the sand and gravel taken by the United States from these bars and used for the improvement of the navigation of the river by revetting its banks, so as to confine the waters of the river to its natural channel. (1916) 31 Op. Atty. Gen. 67. 32. Same; flying officers in time of peace defined. A flying officer in time of peace is defined as one who has received an aeronautical rating as a pilot of service types of aircraft or one who has received an aeronautical rating as an aircraft observer: Provided, That in time of peace no one may be rated as an aircraft observer unless he has previously qualified as a pilot: Provided further, That any officer rated as an aircraft observer in time of war must subsequently qualify as a pilot before he can qualify as an observer in time of peace following such war. Sec. 13a, added to act of June 3, 1916, by sec. 13, act of June 4, 1920 (41 Stat. 768), as amended by sec. 2, act of July 2, 1926 (44 Stat. 781), and sec. 3, act of June 16, 1936 (49 Stat. 1524); U. S. C. 10: 291c. The original text of this section has been amended as above. 35. Same; flying cadets. "U. S. C. 10: 604" should be added to the citation to the second paragraph of this section. Act of April 15, 1935 (49 Stat. 156), creates the grade of "aviation cadet" in the Naval Reserve and Marine Corps Reserve, provides for their compensation and expenses during a four-year term of active duty, and for a lump-sum payment of $1,500 upon release therefrom. 38. Same; jurisdiction defined. "U. S. C. 10: 295" should be added to the citation to this section. 39. Same; exhibition flights. The compilers of the United States Code have not followed the recommendation of the War Department (J. A. G. 010.3, November 12, 1929, page 69) that this section, based on War Department appropriation act of February 28, 1929 (45 Stat. 1362), and appearing for the last time in the appropriation act for the fiscal year 1931 (46 Stat. 445), U. S. C. 10: 307, be omitted from the Code as temporary. 40. Same; prevention of forest fires. This section, based on act of February 16, 1929 (45 Stat. 1204), making appropriations for the Department of Agriculture, was not repeated in the corresponding act for the fiscal year 1935. 41. Corps of Engineers; composition and organization. That section 11 (Corps of Engineers), National Defense Act, as amended, is hereby further amended to provide one additional assistant to the Chief of Engineers with the rank of brigadier general, and one hundred and eighty-five additional officers in grades from colonel to second lieutenant, inclusive: Sec. 11, act of June 3, 1916 (39 Stat. 173), as amended by sec. 11, act of June 4, 1920 (41 Stat. 768), and act of June 26, 1936 (49 Stat. 1974); U. S. C. 10: 181, 482a. The above provision is added as a new paragraph of this section. 42. Chief of Engineers; duties. This section, based on R. S. 1152, was expressly repealed by sec. 1, act of Mar. 3, 1933 (47 Stat. 1428). 48. Chief Signal Officer; duties. The first clause of the first paragraph of this section is useless, and the second clause, reading: "and for the safe-keeping and preservation of all Signal Service property of every kind, and to direct and prescribe the kind, number, and form of all returns and reports, and to enforce compliance therewith" was repealed by 111, post. No recommendation will be made for inclusion of this paragraph in the United States Code (Memo. J. A. G., October 9, 1930). 50. General Staff Corps; composition. The compilers of the United States Code have not followed the recommendation of the War Department (J. A. G. 010.3, July 10, 1931, page 10) that the second paragraph |