DEPARTMENT OF JUSTICE,

July 18, 1898.

SIR: In obedience to your request for my opinion as to who possesses the power to appoint regimental officers of a volunteer regiment composed of companies taken from two or more States, I have the honor to advise you that by the act of April 22, 1898, providing for temporarily increasing the military establishment of the United States in time of war, and for other purposes, provision is made for the appointment of regimental and company officers by the governors of the States in which such organizations respectively are raised. The same act also authorizes the President, through the Secretary of War, to organize companies, troops, battalions, or regiments possessing special qualifications from the nation at large, not to exceed 3,000 men, under such rules and regulations, including the appointment of the officers thereof, as may be prescribed by the Secretary of War. The act, however, makes no provision for the appointment of regimental officers where regiments are made up by companies, troops, or battalions furnished by two or more different States. The authority given by the act mentioned to governors of States to commission officers is confined to organizations which are raised within the States, respectively. The direct authority given by the act to the President to commission is confined to such organizations with especial qualifications, not to exceed 3,000 men, as may be raised for the Volunteer Army.

It is obvious, therefore, that the regimental officers of such regiments as may be formed by contributions of companies from two or more States must be made under some authority not contained in the act of April 22. I think such authority is implied in the constitutional provisions which make the President the Commander in Chief of the Army and Navy, and which authorize him to appoint all officers of the United States whose appointment is not otherwise provided for by law. There may be some question whether the last-named provision is applicable to military officers, but I think there can be no doubt that, by virtue of the general authority of the President as Commander in Chief to raise an army and organize a regiment, he may appoint and com

mission regimental officers where that power is not specifically vested in governors of the States.

Very respectfully,

The PRESIDENT.

JOHN W. GRIGGS.

NAVY-COURT-MARTIAL.

The conviction by a general court-martial properly called can not be ratified or confirmed by the Secretary of the Navy where one member of the court has been relieved by a subordinate without authority of the Secretary and another judge substituted in his stead.

The consent of the accused can not confer jurisdiction upon a court not possessing it by virtue of statutory authority.

Trial by a court not legally constituted is not a trial which can be said to be "due process of law."

DEPARTMENT OF JUSTICE,

July 18, 1898.

SIR: I have your communication of the 9th instant, setting forth the trial and conviction by general court-martial at Mare Island, Cal., of John A. Brown, and asking my opinion as to whether you can ratify and confirm the act of Commodore Crowninshield, chief of the Bureau of Navigation, who undertook to substitute Past Assistant Engineer Gage for Assistant Engineer William S. Smith, appointed by you as one of the five judges of the court.

It appears that the court met on June 27 last, all the members being present except one; that Commodore Crowninshield sent the following telegram:

"NAVY-YARD,

"WASHINGTON, D. C., June 26.

Mare Island, Cal.:

"Please substitute P. A. Eng. Gage for court-martial duty, vice Smith.

66 'CROWNINSHIELD.”

It appears further that this telegram was not authorized by you; that Gage took the place of Smith, and the court thus completed, with the minimum number of judges allowed by law, did, on the 27th day of June, try and convict

Brown; that the finding is now awaiting approval or disapproval, and that on June 28 you sent the following telegram to the senior officer of the court:

"Passed Assistant Engineer Gage appointed member general court-martial vice Assistant Engineer Smith, relieved. This order takes effect upon completion of a case.”

It is evident that Smith was not relieved, nor Gage appointed by competent authority, until after the conviction of Brown, and that unless now made so by ratification, the court was not a legal court-martial or body known to the laws, so far as the trial of Brown is concerned. The consent of the accused can not confer jurisdiction upon a court not possessing it by virtue of statutory authority.

In my opinion, such a proceeding as here presented can not be made good. If one judge can be illegally appointed, all can be. If a minor offense can be tried by such an unauthorized body, a capital offense can be. Aside from constitutional provisions, it is a plain dictate of common justice that no person shall be deprived of life or liberty without due process of law. Trial by a court not legally constituted is not a trial which can be said to be "due process of law.”

I am of the opinion, therefore, that the so-called courtmartial, so far as the trial of Brown is concerned, must remain illegal, and its judgment ought not to be enforced. Respectfully,

The SECRETARY OF THE NAVY.

JOHN W. GRIGGS.

RIVERS AND HARBORS-SAN PEDRO, CAL.

In the river and harbor act of June 3, 1896, providing a deep-water harbor for commerce and of refuge at San Pedro, Cal., it was the purpose of Congress that it should be a deep-water harbor in the sense of having a sufficient depth of water to accommodate vessels of large draft, but not necessarily vessels of the greatest draft now constructed. It was not the intention of Congress that out of the appropriation made the harbor should be equipped with piers, jetties, and channels necessary for the highest condition of usefulness and efficiency. The project reported by the board of officers selected for that purpose is a breakwater, and fulfills the provisions of the law and will make within its meaning a harbor for commerce and of refuge.

Under this act the Secretary of War is not called upon to make further plans, specifications, or estimates for other work not included within the plans and specifications adopted by the court.

DEPARTMENT OF JUSTICE,

July 19, 1898.

SIR: By letter of July 8, 1898, you submit for my consideration and opinion certain questions arising out of a provision of the river and harbor act, approved June 3, 1896, providing for a deep-water harbor for commerce and of refuge at Port Los Angeles, in Santa Monica Bay, California, or at San Pedro, in the said State, the location of said harbor to be determined by a specially appointed board of officers. The provision of the river and harbor act referred to is as follows:

"For a deep-water harbor for commerce and of refuge at Port Los Angeles, in Santa Monica Bay, California, or at San Pedro, in said State, the location of said harbor to be determined by an officer of the Navy, to be detailed by the Secretary of the Navy, an officer of the Coast and Geodetic Survey, to be detailed by the Superintendent of the said Survey, and three experienced civil engineers, skilled in riparian work, to be appointed by the President, who shall constitute a board, and who shall personally examine said harbors, the decision of a majority of which shall be final as to the location of said harbor. It shall be the duty of said board to make plans, specifications, and estimates for said improvement. Whenever said board shall have settled the location and made report to the Secretary of War of the same, with said plans, specifications, and estimates, then the Secretary of War may make contracts for the completion of the improvement of the harbor so selected by said board, according to the project reported by them, at a cost not exceeding in the aggregate two million nine hundred thousand dollars; and fifty thousand dollars is hereby appropriated, so much thereof as may be necessary to be used for the expenses of the board and the payment of the civil engineers for their services, the amount to be determined by the Secretary of War."

By your letter you advise me that the board authorized by this act was duly organized, made the investigation

required, and reported under date of March 1, 1897, locating said harbor at San Pedro, and submitting plans and specifications for the construction of a breakwater. You also submitted to me with your letter a copy of the report of the said board with accompanying documents.

It appears from your letter and from the official files of this Department that doubts having arisen in your mind as to your authority to proceed and award contracts for the completion of the improvement comprised in the project of the said board, you submitted the matter to the AttorneyGeneral for his advice and instructions, and that by an opinion dated August 9, 1897, you were advised by the Attorney-General as follows:

"From a careful consideration of the report of the board I am of the opinion that the project reported by them is a breakwater, and that it fulfills the provision of the law and will make within its meaning a harbor for commerce and of refuge."

You further state that, acting upon this opinion, you have advertised for proposals for the construction of the breakwater at San Pedro; that bids have been received and opened and are on file in your Department, but that no award has yet been made.

It appears that on the 13th of July, 1897, the Senate of the United States passed a concurrent resolution reciting that the Secretary of War had reported to the Senate that he had serious doubts as to his authority to make contracts for the construction of a breakwater at San Pedro, and had asked for the instruction of Congress with reference thereto, and reciting further that it was important that any doubt on the subject should be removed by Congressional interpretation, and thereupon resolving that the Secretary of War was thereby authorized to advertise for bids for the construction of a breakwater at San Pedro in accordance with the project recommended in the said report, provided the same could be contracted for within the limit authorized by the provisions of the river and harbor act of June 3, 1896. This resolution, being concurrent and never having passed the House of Representatives, never became operative.