Commander of Military Department. appoint general courts-martial, and act upon the record of proceedings of the same, when outside the territorial limits of his command. DEPARTMENT OF JUSTICE, August 28, 1880. SIR: Yours of the 24th instant, asking whether a department commander assigned by the President to command can exercise the functions of his office to appoint general courtsmartial, and act upon the record of proceedings of the same when he is outside the territorial limits of his command, has been duly considered, in connection with Orders No. 26, Washington, May 18, 1878, in the case of General Kurtz, and Orders No. 9, Vancouver Barracks, W. T., May 14, 1880, transmitted by you in the same connection, and herewith I submit a reply. The division and subdivision of the territory of the United States into military divisions and departments is a matter of discretion for the President, and scarcely anything, and that indirect and for the present purpose uninstructive, is to be found upon the subject in the statutes. Orders making such geographical division and assigning officers to their command are also very brief, and throw no special light upon the present question. In the absence of special orders or legislation to that effect, I am of opinion that personal presence within the territorial limits of his department is not essential to the validity of commands given by a department commander to be executed within such limits, such, for instance, as the appointment of a court-martial. The question which you put is general as regards the absence in question, so that my answer is necessarily general also. Whether there may be exceptions to it growing out of special circumstances attending absence can be best determined when those circumstances arise. But I see no reason why mere absence should have the effect of invalidating such commands. The distribution of military command into geographical departments is, as I suppose, mainly for the purpose of pre venting collision and confusion, and so of securing individual responsibility in the execution commanded by officers otherwise of like authority. Practically, such collision is to be Case of the Propeller Kent. apprehended rather in execution than in exercise. It seems, therefore, that the place of the action taken is material to the question of the proper execution of command, rather than to that of its proper exercise. In the analogous cases of civil authority the incident of geographical limits for its execution has not, in the absence of special features, been considered to require, ex. gr., judicial orders to be issued by a judge only whilst within such limits. In order to render this necessary, something else must concur to indicate the will of the constituting authority. The ground of this opinion is that there is at present here nothing else to indicate the will of the President or other proper superior authority that the functions of commanding officers should be so limited. In the mean time the arguments in its favor are such as are for consideration only by the power having legislative or quasi legislative control of the question (i. e., by statute or by order). Very respectfully, your obedient servant, S. F. PHILLIPS, The SECRETARY OF WAR. Approved: Solicitor-General. CHAS. DEVENS. CASE OF THE PROPELLER KENT. By act of May 2, 1878, chap. 80, an American register or enrollment was authorized to be issued to the Canadian-built propeller East by the name of the Kent. The vessel was dismantled as a steamer, and subsequently enrolled under that act as a barge. Afterwards the machinery was replaced in her; but the inspectors of steamboats declined to give her a certificate of inspection-the boiler not being constructed of stamped iron, as required by section 4428 Rev. Stat. Held that the act of 1878 was executed by the enrollment of the vessel as a barge; and that the boiler, being then no part of the vessel, was not nationalized under that act, nor entitled to pass inspection without being stamped. DEPARTMENT OF JUSTICE, December 22, 1880. SIR: Your communications of the 3d and 17th instants present for an opinion by the Attorney-General the following case and question: "The steam tug-boat East was of Canadian construction, Case of the Propeller Kent. and was built since 1852. By act of Congress of May 2, 1878, volume 20, page 47, the Secretary of the Treasury was authorized and directed to issue an American register or enrollment to the said Canadian-built propeller East by the name of Kent, to which the name of said vessel was thereby changed. "The act of 1852, volume 10, page 69, section 13, requires that every boiler manufactured to be used on steam-vessels, and made of iron or steel plates, shall be constructed of plates that have been stamped in accordance with the provisions of this act.' This provision was re-enacted in 1871, and incorporated in the Revised Statutes in section 4428. The boilers in the Kent are constructed of iron plates not stamped, and the inspectors of steamboats, whose duties as to inspection are set forth in sections 4418 and 4421, refuse to give her a certificate of inspection for the reason that the boilers are not constructed of stamped iron or inspected iron plates. "It appears that this vessel was dismantled as a steamer about the time of the approval of the act of May, 1878, and was enrolled under its authority at Ogdensburg, N. Y., October 10, 1878, as a barge. This enrollment was surrendered March 15, 1880, and another, as a barge, was issued to her. This latter has not been surrendered. "The question submitted for your opinion is whether the Kent is entitled to a certificate of approval from the inspectors; the owners contending that the act authorizing the issue of an American register or enrollment grants the right to use the steamer with such boiler as was in her at the date of said act." But for the variation in the circumstances of this case made by yours of the 17th, viz, that when the owners of the Kent availed themselves of the privilege of enrollment granted by the act of 1878 she had been dismantled, and was no longer a "propeller," it seems plain that her boiler would have been entitled to inspection without being stamped, for the act in question dispensed with all prerequisites to registry or enrollment, and therefore amongst these with the stamping of the boiler-plates. But when the owners chose to avail themselves of their privilege in the form in which they did, and virtually presented to the enrolling officers as the identical Kent mentioned in the Case of the Propeller Kent. act of 1878 a vessel in some respects dismantled, it seems that act thereby was executed, as it were, and that they were not entitled at the the end of a year or more to come again with the Kent, in a new form, and require the United States inspectors to verify their suggestion that this also was in all legal respects the identical Kent mentioned in the act of 1878, and that her unstamped boiler-plates were the plates of that Kent. The act of 1878 did not execute itself as regards nationalization, but required for that effect an enrollment of the "propeller." Although a propeller in May, I see no reason to doubt that, under the act, the Kent might well have been dismantled and enrolled as a barge. In that event, all the machinery, &c., omitted at enrollment failed to be nationalized. I apprehend that this machinery, &c., could not be nationalized except at the nationalization of the Kent, and as part thereof. For instance, it could not have been competent to place the boiler in some other American vessel; I mean, at all events, before it had been nationalized as part of the Kent. It, therefore, seems that, after the enrollment of October, 1878, the act of May previous was to be considered as functus officio, and therefore that other parts of the original vessel could not thereafter be produced, whether separately or after being reattached for supplementary nationalization, or therefore as entitled to pass inspection without (say) being stamped. This argument seems technical, but it occurs that arguments ab inconvenienti, drawn from the impolicy of leaving for several years so much to evidence in pais as to identity of parts, &c., might be readily adduced to the same effect. Very respectfully, your obedient servant, S. F. PHILLIPS, The SECRETARY OF THE TREASURY. Solicitor-General. Approved: CHAS. DEVENS. INDEX. ABEYANCE OF OFFICE. See APPOINTMENT, 5. ACCOUNTS AND ACCOUNTING OFFICERS. 1. The provision in section 3622 Rev. Stat., giving the Secretary of the 2. That provision is intended only to enable the Secretary of the ACCUSER OR PROSECUTOR. See COURT-MARTIAL, 5, 6. AD INTERIM APPOINTMENT. ADJUSTMENT OF RAILROAD LAND-GRANT. ADVERTISEMENTS. The provisions of section 3828 Rev. Stat., forbidding the publica- |