Executive Departments of the Government. Act of Mar. 2, 1895 (28 Stat. 933).

134. Subpœnas—Depositions.-Any head of a Department or Bureau in which a claim against the United States is properly pending may apply to any judge or clerk of any court of the United States, in any State, District, or Territory, to issue a subpoena for a witness being within the jurisdiction of such court, to appear at a time and place in the subpoena stated, before any officer authorized to take depositions to be used in the courts of the United States, there to give full and true answers to such written interrogatories and crossinterrogatories as may be submitted with the application, or to be orally examined and cross-examined upon the subject of such claim. Sec. 184, R. S.

135. Witness fees.-Witnesses subpoenaed pursuant to the preceding section shall be allowed the same compensation as is allowed witnesses in the courts of the United States. Sec. 185, R. S.

136. Compelling testimony.-If any witness, after being duly served with such subpoena, neglects or refuses to appear, or, appearing, refuses to testify, the judge of the district in which the subpœna issued may proceed, upon proper process, to enforce obedience to the subpoena, or to punish the disobedience, in like manner as any court of the United States may do in case of process of subpœna ad testificandum issued by such court. Sec. 186, R. S.

137. Professional assistance.-Whenever any head of a Department or Bureau having made application pursuant to section one hundred and eighty-four, for a subpoena to procure the attendance of a witness to be examined, is of opinion that the interests of the United States require the attendance of counsel at the examination, or require legal investigation of any claim pending in his Department or Bureau, he shall give notice thereof to the Attorney-General, and of all facts necessary to enable the Attorney-General to furnish proper professional service in attending such examination, or mak ing such investigation, and it shall be the duty of the AttorneyGeneral to provide for such service. Sec. 187, R. S.

138. Employment of legal services.-No head of a Department shall employ attorneys or counsel at the expense of the United States, but shall, when in need of counsel or advice, call upon the Department of Justice, the officers of which shall attend to the same. Sec. 189, R. S.

139. Evidence furnished to Court of Claims.-In all suits brought against the United States in the Court of Claims founded upon any contract, agreement, or transaction with any Department, or any Bureau, officer, or agent of a Department, or where the matter or thing on which the claim is based has been passed upon and decided by any Department, Bureau, or officer authorized to adjust

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it, the Attorney-General shall transmit to such Department, Bureau, or officer, a printed copy of the petition filed by the claimant, with a request that the Department, Bureau, or officer, shall furnish to the Attorney-General all facts, circumstances, and evidence touching the claim in the possession or knowledge of the Department, Bureau, or officer. Such Department, Bureau, or officer shall, without delay, and within a reasonable time, furnish the Attorney-General with a full statement, in writing, of all such facts, information, and proofs. The statement shall contain a reference to or description of all such official documents or papers, if any, as may furnish proof of facts referred to in it, or may be necessary and proper for the defense of the United States against the claim, mentioning the Department, office, or place where the same is kept or may be procured. If the claim has been passed upon and decided by the Department, Bureau, or officer, the statement shall succinctly state the reasons and principles upon which such decision was based. In all cases where such decision was founded upon any act of Congress, or upon any section or clause of such act, the same shall be cited specifically; and if any previous interpretation or construction has been given to such act, section, or clause by the Department, Bureau, or officer, the same shall be set forth succinctly in the statement, and a copy of the opinion filed, if any, shall be annexed to it. Where any decision in the case has been based upon any regulation of a Department, or where such regulation has, in the opinion of the Department, Bureau, or officer transmitting such statement, any bearing upon the claim in suit, the same shall be distinctly quoted at length in the statement. But where more than one case, or a class of cases, is pending, the defense to which rests upon the same facts, circumstances, and proofs, the Department, Bureau, or officer shall only be required to certify and transmit one statement of the same, and such statement shall be held to apply to all such cases, as if made out, certified, and transmitted in each case respectively. Sec. 188, R. S.

140. Prosecution of claims by ex-employees.-It shall not be lawful for any person appointed after the first day of June, one thousand eight hundred and seventy-two, as an officer, clerk, or employee in any of the Departments, to act as counsel, attorney, or agent for prosecuting any claim against the United States which was pending in either of said Departments while he was such officer, clerk, or employee, nor in any manner, nor by any means, to aid in the prosecution of any such claim, within two years next after he shall have ceased to be such officer, clerk, or employee. Sec. 190, R. S.

(See XVIII Opin. Att. Gen., 125, 136; XIX id., 328; XX id., 657.)

141. Secretary of War-Department of War.-There shall be at the seat of Government an Executive Department to be known as the Department of War, and a Secretary of War, who shall be the head thereof.1 Sec. 214, R. S.

142. Assistant Secretary of War.-There shall be in the Department of War an Assistant Secretary of War, who shall be appointed by the President, by and with the advice and consent of the Senate,

'The Department of War and the office of Secretary of War were created by the act of August 7, 1789 (1 Stat. 49). The powers and duties of the Secretary of War were defined in an ordinance of Congress dated January 27, 1785 (1 Stat. 49, note b). The office of Secretary of War included that of Secretary of the Navy until April 30, 1798, when the Department of the Navy was established, and so much of the act of August 7, 1789, as imposed duties upon the Secretary of War in connection therewith was repealed (1 Stat. 553). For statutory provisions respecting a temporary vacancy in the office of Secretary of War see paragraphs 13 to 18, ante.

and shall be entitled to a salary of four thousand five hundred dollars a year, payable monthly, and who shall perform such duties in the Department of War as shall be prescribed by the Secretary or may be required by law. Act of Mar. 5, 1890 (26 Stat. 17).

143. Absence or illness of Secretary of War.-The President may authorize and direct the Commanding General of the Army or the chief of any military bureau of the War Department to perform the duties of the Secretary of War under the provisions of section one hundred and seventy-nine of the Revised Statutes, and section twelve hundred and twenty-two of the Revised Statutes shall not be held or taken to apply to the officer so designated by reason of his temporarily performing such duties. Act of Aug. 5, 1882 (22 Stat. 238).

144. Assistant and chief clerk.-There shall be in the said Department an inferior officer, to be appointed by said principal officer, to be employed therein as he shall deem proper, and to be called the chief clerk in the Department of War, and who, whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy, shall, during such vacancy, have the charge and custody of all records, books, and papers appertaining to the said Department. Act of Feb. 27, 1877 (19 Stat. 241), amending Sec. 215, R. S.

(Now assistant and chief clerk. Act of May 22, 1908 (35 Stat. 213).)

145. Temporary absence of Secretary of War.-When, from illness or other cause, the Secretary of War is temporarily absent from the War Department, he may authorize the chief clerk of the Department to sign requisitions upon the Treasury Department, and other papers requiring the signature of said Secretary; the same, when signed by the chief clerk during such temporary absence, to be of the same force and effect as if signed by the Secretary of War himself. Act of Mar. 4, 1874 (18 Stat. 19).

(For the general duties of chief clerks see Chapter II, ante.)

146. Absence of bureau chief.-During the absence of the Quartermaster-General, or the chief of any military bureau of the War Department, the President is authorized to empower some officer of the department or corps whose chief is absent to take charge thereof, and to perform the duties of Quartermaster-General, or chief of department or corps, as the case may be, during such ab

1

The act of August 5, 1882 (22 Stat. 237), authorizing the appointment of an Assistant Secretary of War was repealed by the act of July 7, 1884 (23 Stat. 179), the power conferred by the act of August 5, 1882, never having been exercised. In the case of Ryan v. U. S., 136 U. S., 18, 80, it was held that the authority vested in the Secretary of War could in his absence be exercised by the officer who under the law became for the time Acting Secretary of War. The salary of the Assistant Secretary of War was increased to $5,000 by act of May 22, 1908 (35 Stat. 213).

sence.1 Sec. 1132, R. S., as amended by the Act of Feb. 25, 1877 (19 Stat. 242).

147. Duties of the Secretary of War.-The Secretary of War shall perform such duties as shall from time to time be enjoined on or intrusted to him by the President relative to military commissions, the military forces, the warlike stores of the United States, or to other matters respecting military affairs; and he shall conduct the business of the Department in such manner as the President shall direct." Sec. 216, R. S. (see secs. 3660–3665, 3669, R. S.).

148. Secretary of War custodian of department property, etc.The Secretary of War shall have the custody and charge of all the books, records, papers, furniture, fixtures, and other property appertaining to the Department. Sec. 217, R. S.

This section contains the substance of section 5 of the act of July 4, 1836 (5 Stat. 117), which was passed in order to enable Q. M. Gen. Thos. S. Jesup to exercise command of the troops engaged in the prosecution of the Florida war. General Jesup served under this assignment from May 19, 1836, to July 7, 1838, when he resumed the performance of his duties as QuartermasterGeneral in the War Department.

The Secretary of War is the regular constitutional organ of the President for the administration of the Military Establishment of the Nation; and rules and orders publicly promulgated through him must be received as the acts of the Executive and, as such, be binding upon all within the sphere of his legal and constitutional authority. Such regulations can not be questioned or defied because they may be thought unwise or mistaken. The right of so considering and treating the authority of the Executive, vested as it is with the command of the military and naval forces, could not be intrusted to officers of any grade inferior to the Commander in Chief; its consequence, if tolerated, would be a complete disorganization of both the Army and Navy. (U. S. v. Eliason, 16 Pet., 291, 302; Wilcox v. Jackson, 13 Pet., 498, 513; Wolsey v. Chapman, 101 U. S., 755; Runkle v. U. S., 122 U. S., 543, 557; U. S. v. Adams, 7 Wall., 463.) The Secretary of War is not required to perform duties in the field. He does not compose any part of the Army, and has no service to perform that may not be done at the seat of government. (I Opin. Att. Gen., 457; U. S. v. Burns, 12 Wall., 246; see also note 2 to par. 5, and the title Bridges over the navigable waters of the United States, in the chapter entitled "The Corps of Engineers.")

Duties imposed by statute.-In addition to his duties as the constitutional organ of the President for the administration of the Military Establishment, the Secretary of War is, by other statutes, charged with the supervision of the administration of the several bureaus or offices of the War Department, their estimates, contracts, expenditures, reports, and returns being under his sole direction and control. He has also been charged, from time to time, with the execution of laws relating to national cemeteries, the Soldiers' Home, the National Home for Disabled Volunteer Soldiers, the military prison, the detail of officers to colleges, the distribution of relief to sufferers by fire, flood, or by the failure of crops, due to drought or other causes, the construction and operation of canals, roads, and lines of telegraph, the location and construction of bridges over the navigable waters of the United States, of railroads through the public lands, the protection of settlers and emigrants, the establishment of harbor lines, the adjustment of claims, the establishment and maintenance of national military parks, and the location, marking, and preservation of lines of battle on the battlefields of the Civil War. Since the act of June 28, 1864, all statutes authorizing the construction of works of river and harbor improvement have contained the provision that the sums appropriated shall be expended under his direction. The Military Academy and the schools of application at Willets Point, Fortress Monroe, and at Forts Leavenworth and Riley are also carried on under the immediate supervision of the Secretary of War. By the act of April 10, 1878, the Secretary of War is authorized to prescribe rules and regulations to be observed in the preparation, submission, and opening of bids for contracts under the War Department.