WAR DEPARTMENT, WASHINGTON, September 1, 1936. Supplement V to the Military Laws of the United States, 1929, containing additions and amendments made by the Seventy-first, Seventy-second, Seventythird, and Seventy-fourth Congresses, is published for the information and guidance of all concerned. There have been added also notes of court decisions and opinions of the Attorney General rendered since 1929, and certain provisions omitted from the original text. Certain provisions included in the original text but since determined to be no longer in effect have been eliminated. This supplement supersedes Supplement IV, September 1, 1934. So-called "recurring provisions" are designated in the original text by the note "A similar provision has appeared in prior appropriation acts." When no change is indicated, it is to be understood that such provisions are repeated in substantially the same form in the corresponding appropriation acts for subsequent years. Sections designated by a small letter following the number are new. New matter added to or amending existing sections is so described in an explanatory note. In the tables the terms "reference added" and "reference eliminated" are used where the citation to an existing section is corrected, as indicated by note thereunder, but without any change in the text of the section; and also to make corrections in the tables which involve no change in either the text or citation of existing sections. Attention is invited to the table entitled "Recommendations to the United States Code", showing the action of the compilers of the Code on the recommendations of the War Department for the inclusion or exclusion of certain provisions of law. [A. G. 010.6 (8-1-31).] BY ORDER OF THE SECRETARY OF WAR: OFFICIAL: E. T. CONLEY, Major General, The Adjutant General. MALIN CRAIG, Chief of Staff. II THE CONSTITUTION OF THE UNITED STATES OF AMERICA ARTICLE I. LEGISLATIVE DEPARTMENT Section 8. Powers of Congress IN GENERAL The printing and binding of a compilation of Federal laws held unconstitutional by the Supreme Court of the United States was authorized by Title I, Deficiency Appropriation Act of June 22, 1936 (49 Stat. 1600). NOTES OF DECISIONS In general.-National emergency may call into activity existing dormant power of Congress, but cannot create power not theretofore existing. United States v. Lieto (D. C., 1934), 6 F. Supp. 32. Congress has no general police power, but must bring enactments within some specified or implied power granted by Federal Constitution. Id. Clause 3. Commerce interstate or foreign commerce. Id. Authority over navigable waters.-Sover- | States", stream must be susceptible in eign right of a State in and to navigable natural condition of becoming highway of waters held subject to paramount power of Federal Government to regulate navigation and Commerce between States and foreign countries. Luckenbach S. S. Co., Inc., v. Denney (Wash. 1929) 278 Pac. 419. Federal authority over navigable streams is in aid of commerce and navigation. Okanogan-Douglas Inter-County Bridge Co. v. State (Wash. 1928) 266 Pac. 724, writ of error dismissed and certiorari denied (1928) 278 U. S. 571. Power of Congress over waters susceptible of being used in ordinary condition as highways for interstate or foreign commerce is plenary. U. S. v. Doughton et al. (C. C. A. 1933), 62 F. (2d) 936. To come within regulatory power of Congress as "navigable waters of United Though Congress, in the exercise of its power over navigation, may adopt any means having some positive relation to the control of navigation and not otherwise inconsistent with the Constitution, it may not arbitrarily destroy or impair the rights of riparian owners by legislation which has ne real or substantial relation to the control of navigation or appropriateness to that end. State of Wisconsin v. State of Illinois. (1929) 278 U. S. 367. Ordinarily navigable waters within State are subject to State's control till Federal Government assumes jurisdiction. Leitch v. City of Chicago (C. C. A. 1930), 41 F. (2d) 728, certiorari denied (1930) 282 U. S. 891. Clause 16. To Provide for Organizing the Militia Congress has authority to determine extent and terms of aid to be given National Guard of various States (Const. art. 1, sec. 8, cl. 16). United States v. Dern (App. D. C. 1934), 74 F. (2d) 485. Government of militia is committed to respective States until militia is called into national service (Const. art. 1, sec. 8, cl. 16). Id. Each State has authority to train its ablebodied male citizens of suitable age to fit them, if called upon, for service in the United States Army, the State militia, or the local constabulary or police; and for these purposes it may, with the permission of the National Government, avail itself of the services of officers and the use of equipment belonging to the military establishment of the United States. And while so acting within its retained powers, and consistently with exertion of national power and with rights of individuals safe-guarded by the National Constitution, the State is the sole judge of the means to be employed and the amount of training to be exacted. Hamilton v. Regents (1934), 293 U. S. 245, affirming (Calif., 1934) 28 P. (2d) 355. 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 not inconsistent with the effective use of the lands by the Government. 38 Op. Atty. Gen. No. 4, May 28, 1935. 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 bility in fact exists, and to waive any legal 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 defense on the part of the Government, is no longer subject to question. Thomas C. Edwards v. U. S. (1934), 79 Ct. Cls. 436. |