to perform for that command, under the general supervision of the Judge Advocate General the duties which the Judge Advocate General and the board or boards of review in his office would otherwise be required to perform in respect of all cases involving sentences not requiring approval or confirmation by the President. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 797); sec. 1, act of Aug. 20, 1937 (50 Stat. 724); act of Aug. 1, 1942 (56 Stat. 732); 10 U. S. C. 1522. This section has been amended as above. Executive Order No. 9363, July 23, 1943, redistributing certain functions of the Secretary of War and The Judge Advocate General with respect to certain court-martial cases reads as follows: " "1. Subject to such regulations as the Secretary of War may prescribe, the Under Secretary of War and the Assistant Secretary of War are authorized, respectively, to exercise and perform all functions, duties, and powers conferred upon the Secretary of War or the Acting Secretary of War by Article of War 50%, as amended. "2. Subject to such regulations as the Secretary of War may prescribe, the Assistant Judge Advocate General in charge of military justice matters is authorized to exercise and perform all functions, duties, and powers conferred upon the Judge Advocate General by Article of War 46 and by the second, third, fourth, and fifth paragraphs of Article of War 50%. **3. There are hereby transferred to the Under Secretary of War, the Assistant Secretary of War, and the Assistant Judge Advocate General in charge of military justice matters such functions, duties, and powers of the Secretary of War and the Judge Advocate General as may be necessary to effectuate the provisions of this order; but nothing contained in this order shall be deemed to limit or restrict the power and right on the part of the Secretary of War or the Judge Advocate General, in their discretion, to exercise or perform any of the functions, duties, or powers heretofore possessed by or vested in them. "4. The functions, duties, and powers herein transferred or delegated may be exercised and performed by the officials to whom such transfers and delegations are made without the necessity of any signature, approval, ratification, or other act by higher authority, except to the extent required by such regulations as may be prescribed by the Secretary of War; and all officers, officials, and employees of the United States, including disbursing, accounting, and auditing officers, shall give the same effect to any acts of those to whom transfers and delegations are made hereunder as if done by the person or persons in whom the functions, duties, and powers were vested prior to such transfers and delegations." For applicability of the provisions of this section to military commissions, Бее Ex Parte Quirin, 317 U. S. 1, cited under Constitution, Amendment 6, ante. Notes of Decisions Rehearing.-Under statute providing for a on certain conditions. A. W. 50%. Sanford, rehearing before a new court-martial com- Warden v. Robbins (C. C. A. 5, 1940), 115 posed of officers not members of court which F. (2d) 435; certiorari denied (1941), 312 first sat, Congress construes the Constitution U. S. 697. to permit a second hearing of the same case 410 (A. W. 52). Suspension of sentences in general.-The authority competent to order the execution of the sentence of a court-martial may, at the time of the approval of such sentence, suspend the execution, in whole or in part, of any such sentence as does not extend to death, and may restore the person under sentence to duty during such suspension; and the Secretary of War, the commanding officer holding general court-martial jurisdiction over any such offender, or the military authority competent to appoint, for the command, exclusive of penitentiaries and the United States Disciplinary Barracks in which the person under sentence is held, a court of the kind that imposed the sentence, may at any time thereafter, while the sentence is being served, suspend the excution, in whole or in part, of the balance of such sentence and restore the person under sentence to duty during such suspension. A sentence, or any part thereof, which has been so suspended may be remitted, in whole or in part, except in cases of persons confined in the United States Disciplinary Barracks or its branches, by the officer who suspended the same, by his successor in office, or by any officer exercising appropriate court-martial jurisdiction over the command in which the person under sentence may be serving at the time, and, subject to the foregoing exceptions, the same authority may vacate the order of suspension at any time and order the execution of the sentence or the suspended part thereof insofar as the same shall not have been previously remitted, subject to like power of suspension. The death or honorable discharge of a person under a suspended sentence shall operate as a complete remission of any unexecuted or unremitted part of such sentence. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 799); act of Dec. 15, 1942 (56 Stat. 1051); 10 U. S. C. 1524. This section has been amended as above. 416 (A. W. 58). Desertion. By Executive Order No. 9048, February 3, 1942, the limitation of punishment under this Article prescribed in M. C. M. 104c was suspended. 417 (A. W. 59). Advising or aiding another to desert. By Executive Order No. 9048, February 3, 1942, the limitation of punishment under this Article prescribed in M. C. M. 104c was suspended. 419 (A. W. 61). Absence without leave. By Executive Order No. 9267, November 9, 1942, the limitation of punishment under this Article prescribed in M. C. M. 104c was suspended, effective December 1, 1942. 427. (A. W. 69). Arrest or confinement. 2292-2, post, provides for the arrest and custody of persons subject to the jurisdiction of service courts of friendly foreign forces within the United States. 428 (A. W. 70). Charges; action upon. For applicability of the provisions of this section to military commissions, see Ex Parte Quirin, 317 U. S. 1, cited under Constitution, Amendement 6, ante. That the provisions of this section do not entitle an accused as of right to counsel at the investigation, see Romero v. Squier, 133 F. (2d) 528, cited unuder Constitution, Amendment 6, ante. 432 (A. W. 74). Delivery of offenders to civil authorities. Notes of Decisions Concurrent jurisdiction.-When a defendant, a military subject, is being held to answer for trial or is undergoing sentence for an offense under the Articles of War, or when a state of war exists, the commanding officer is not required to deliver the defendant to the civil authorities for trial of a criminal offense, but he may waive the right to hold the defendant for trial in the military courts. Articles of War, 10 U. S. C. 1471-1593 and arts. 74, 93, 10 U. S. C. 1546, 1565. Ex parte Sumner (Tex., 1942), 158 S. W. (2d) 310. Where the defendant, a military subject, was charged with negligent homicide, and, during the existence of an unlimited national emergency but before the declaration of war, was arrested in an army camp by military Where military authorities delivered the de- authorities and surrendered by them to the fendant, a military subject charged with sheriff, defendant was legally in the custody negligent homicide to the sheriff, they of the civil authorities. Articles of War, 10 "waived" their rights to try the defendants U. S. C. 1471-1593 and arts. 74, 93, 10 in the military courts. Articles of War, 10 U. S. C. 1546-1565. Id. 440 (A. W. 82). Spies. Notes of Decisions Trial by court-martial.-A German national | found "lurking or acting as a spy" was subwho had crossed into our territory from Mexico and at the time of his arrest was ject to trial by court-martial under A. W. 82. (Dec. 24, 1919), 40 Op. Atty. Gen. No. 54. 441 (A. W. 83). Willful or negligent loss, damage, or wrongful disposition of military property. For authority to act on reports of survey in connection with the loss, damage or destruction of public property under control of the War Department, see 112, ante. 444 (A. W. 86). Misbehavior of sentinel. By Executive Oder No. 9048, February 3, 1942, the limitation of punishment under this Article prescribed in M. C. M. 104c was suspended. 466 (A. W. 108). Soldiers; separation from the service. For review of type and nature of discharge under Servicemen's Readjustment Act of 1944, see 1164-6, post. Notes of Decisions Authority. The power to discharge a sol- | department is not subject to review by the dier from the Army is vested under statute in the commanding officer of the Army, and an order of discharge emanating from the Secretary of War or the commanding officer of a courts. 10 U. S. C. A., sec. 1580. Nordmann v. Woodring, Secretary of War, et al. (D. C., 1939), 28 F. Supp. 573. 472 (A. W. 114). Authority to administer oaths.-Any officer of any component of the Army of the United States on active duty in Federal service commissioned in or assigned or detailed to duty with the Judge Advocate General's Department, any staff judge advocate or acting staff judge advocate, the president of a general or special court-martial, any summary court-martial, the trial judge advocate or any assistant trial judge advocate of a general or special court-martial, the president or the recorder of a court of inquiry or of a military board, any officer designated to take a deposition, any officer detailed to conduct an investigation, and the adjutant, assistant adjutant or personnel adjutant of any command shall have power to administer oaths for the purposes of the administration of military justice and for other purposes of military administration; and shall have the general powers of a notary public in the administration of oaths, the execution and acknowledgment of legal instruments, the attestation of documents, and all other forms of notarial acts to be executed by persons subject to military law: Provided, That no fee of any character shall be paid to any officer mentioned in this Act for the performance of any notarial act herein authorized. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 810); act of Dec. 14, 1942 (56 Stat. 1050); 10 U. S. C. 1586. This section has been amended as indicated above. The act of August 21, 1941, ante, 131c, provides that when a warrant officer is serving as assistant adjutant of any command, he shall have power to administer oaths for all purposes of military administration. 475 (A. W. 117). Removal of civil suits. Notes of Decisions In general. The statute permitting a per-military person the right or privilege at his son in the military service of the United election to remove the proceeding to Federal States to remove to Federal court a civil suit court. Id. for acts done "under color of his office or status" when it "is commenced in any court of a State" did not make slander suit cognizable in Federal District Court when originally instituted in Federal court. Pendleton v. Bussey et al. (D. C., W. D. Va., 1939), 30 F. Supp. 211. A Federal court has jurisdiction of suit against military person for acts done "under color of his office or status" only when suit is commenced in a State court, giving the Civil liability of officers.-An officer or agent of the United States may be sued where he has exceeded his authority or acted under an authority not validly conferred W. A. Ross Const. Co. v. Yearsley et. al. (C. C. A., 1939), 103 F. (2d) 589; affirmed (1940), 309 U. S. 18. The exemption of the United States from liability for tort does not protect its officers or agents from personal liability for wrongful invasion of property rights. Id. 476 (A. W. 118). Officers; separation from service. For review of type and nature of dismissal under Servicemen's Readjustment Act of 1944, see 1164-6, post: Notes of Decisions Conviction by civil court.-Claim for active duty pay from 9 May to 28 May 1936 and retired pay from 29 May 1936 to date. A colonel of the Regular Army was found guilty by a District of Columbia court of receiving a fee for services rendered to a private corporation in violation of sec. 113 of the Criminal Code (act of 4 Mar. 1909 (35 Stat. 1109, 18 U. S. C. 203)), which also provides that a person who commits the offense therein forbidden shall thereafter be incapable of holding any office of honor, trust, or profit under the Government of the United States. The judgment and sentence to fine and imprisonment were entered 8 May 1936. An appeal, staying enforcement of the judgment, was perfected. Special Orders of the War Department were issued 28 May 1936, announcing his separation from the Army as of 8 May 1936. Subsequently, a lieutenant colonel was appointed to fill the vacancy and his appointment was confirmed by the Senate. Two years later the judgment of conviction was reversed and a new trial ordered. A nolle prosequi was entered in 1939. Claim denied. Held: The officer was immediately removed from his office by the judgment of the trial court, despite the pendency of the appeal. The purpose of the disqualification provision of the statute is to purge from public offices those who violate the statute. If an appeal from a judgment of guilt were to have the effect of a stay of the operation of the disqualifying provision, the officer, though he had been adjudged guilty, would remain in office for an indefinite period, perhaps for the entire term of his office, pending the appeal. The reversal did not have the effect of restoring claimant to his office. Regardless of the effect of the conviction, the officer was effectively removed by the nomination and confirmation of his successor. The officer contended that such a removal was a violation of A. W. 118. Since 1936 was in time of peace, the article on its face seems to support plaintiff's position. But the Supreme Court has repeatedly held that the tenure-of-office statutes do not prevent the removal of an officer by the joint action of the President in appointing his successor and the Senate in ratifying the appointment. (Blake v. United States, 103 U. S. 227: Wallace v. United States, 257 U. S. 541) McMullen v. U. S. (1943), 100 Ct. Cl. 323. 479 (A. W. 121). Complaints of wrongs. Notes of Decisions In general. The provision of the Articles of War governing National Guard that, if any officer or soldier is refused redress for any wrong by his commanding officer, he may complain to the commanding general in locality and that the general shall examine into complaint and take proper measures for redressing the wrong complained of, prescribes the measure and mode of redress to which an officer is entitled for a wrong done him by his commanding officer, and precludes maintenance of action for malicious prosecution by injured officer against his superiors who instigated and prosecuted general court-martial against the officer for violation of the Articles of War. Wright v. White (Oreg., 1941), 110 P. (2d) 948. a By section 335 of the Criminal Code of March 4, 1909 (35 Stat. 1152), as amended, all offenses punishable by death or imprisonment for a term exceeding one year deemed felonies. are to be "10 U. S. C. 15" should be added to the citation to the second paragraph of the original text of this section, based on section 363, act of March 3, 1899 (30 Stat. 1325); section 29, act of June 6, 1900 (31 Stat. 330). 482. Suppression of violence; Hawaii. By Proclamation No. 2627, October 19, 1944, martial law in Hawaii was terminated and the privilege of the writ of habeas corpus restored. 493. Prevention of illegal export of arms. "22 U. S. C. 245" should be eliminated from the citation to this section, based on section 8, Title VI, act of June 15, 1917 (40 Stat. 225), and "22 U. S. C. 408" added. |