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"But, although Congress has been less explicit on this subject than they might have been, and it could be wished they had been, I am, nevertheless, of opinion that a fair construction of the different militia laws of the United States will lead to a conclusion that something more than organizing and equipping a detachment and ordering it into service was considered as necessary to place the militia in the service of the United States."
But, fortunately, we are not compelled to resort to mere speculation in order to ascertain the exact time when such transition is effected. The Rules and Regulations of the Department of War within their proper sphere, when approved by the President, have the full force of law, and judicial notice of them will be taken by the courts. At the very time of the decision of the case of Houston v. Moore, the following regulation of the War Department was in full force and effect:
"3. So soon as one hundred privates, eight non-commissioned and five commissioned officers (of militia) shall have been organized as a company under any requisition as aforesaid, they will be mustered, inspected, and received into the service of the United States, and upon the rolls and reports made in consequence thereof they will be entitled to pay, etc." (War Department General Orders of March 19, 1813.)
Similar provisions are found in the Regulations of the War Department of 1814, 1834, 1835, 1841, 1847, and 1857, and at the very time, to wit, April 22, 1861, that the Sixth Massachusetts Regiment was mustered into the service of the United States at Washington, the following Regulation of the War Department was in full force and effect, having the force of law:
"1580. Before militia are received in the service of the United States, they shall be mustered by an inspector-general, or some other officer of the Regular Army, specially designated to muster them."
My conclusion is, therefore, that if the laws of Congress relating to State militia have left any doubt as to the exact time when State militia called forth by the President enter into the military service of the United States, and change
their character from State to national militia, as was intimated by the court in Houston v. Moore, that the Rules and Regulations of the Department of War, above quoted, must be considered as having removed such doubt, and as having definitely fixed the time when such State militia enter the military service of the United States, at the date of muster-in.
And the uniform practice of the War Department, covering a period of more than half a century, has been to regard such militia as not in the actual military service of the United States until the date of muster in, and such practice, in my judgment, is amply supported by the decisions of the Supreme Court, and by the opinions of the AttorneysGeneral. Houston v. Moore, 5 Wheat., 1; Martin v. Mott, 12 Wheat., 19; Story on the Constitution, sec. 1213; 3 Opin., 530, 691; 10 Opin., 100; 16 Opin., 150, 152; 21 Opin., 130; 23 Opin., 406.
The purpose of the law, thus supplemented by the Rules and Regulations of the War Department requiring a formal muster-in, becomes at once apparent. For, it is evident that those who are physically and mentally incapacitated for military duty should never be received into the military service of the United States, and the question of the fitness or unfitness of a militiaman, reporting under a call, can only be determined at the inspection which is required to be made as a preliminary to muster-in, the purpose of the law being to prevent the acceptance into the military service of the United States of officers and men unfit for that service. To hold that the mere act of reporting at a rendezvous, and submitting to an inspection and examination. by the mustering-in officers, is sufficient to induct a militiaman into the service of the United States, is to hold, also, that the United States has no voice or power of selection in the matter, but is compelled to accept all who may report under a call, without regard to their competency and fitness for service. That the War Department has never assented to any such construction of the law is manifest from the regulations above quoted, and that the decisions of the Supreme Court and the opinions of the Attorneys-General
do not justify any such interpretation of the law is very clear when we consider the authorities hereinbefore referred to.
In concluding this discussion it is worthy of note that if, under the law, Tyler and his twenty-four associates should be regarded as having been in the military service of the United States as members of the Sixth Massachusetts Militia prior to the arrival of that regiment at Washington, it would be not only a serious misfortune to them, but also to hundreds of other militiamen whose military records are substantially the same. For if these men were in the actual military service of the United States when they left their regiment at Baltimore on April 19, 1861, en route to Washington, they must be regarded as deserters from that service, they having permanently withdrawn themselves from it without a discharge, and without permission from any officer of the United States Army.
Brigadier-General Ainsworth, in the pamphlet above referred to, suggests that the formality of muster-in under certain circumstances might be waived by the United States, or its properly constituted officers; or, in other words, that a constructive muster-in might have, in some instances, the same effect as a formal muster-in of militia under a call by the President. I feel that this suggestion should not be passed over without some word of explanation.
In your communication you state "that the case of the Sixth Massachusetts Militia is fairly representative of the class to which it belongs, and it is believed that an authoritative decision of the question of law involved in it will dispose of all similar questions that are likely to arise in this class of cases in future." It is to be observed that the statement of facts in the case of the Sixth Massachusetts Militia does not present any facts upon which an opinion could properly be predicated as to whether a constructive muster-in might not, under certain circumstances, have the same effect as a formal muster-in of militia. I therefore have deemed it inadvisable to consider such questions in this opinion, in conformity with the long-established rule of this Department. But in so declining to express an
opinion, I do not wish to be understood as intimating that a formal muster-in may not in certain cases be waived by the Government.
My opinion, therefore, is, that the twenty-five members of the Sixth Massachusetts Militia, none of whom ever reached Washington, the place of rendezvous, were never inducted into the actual military service of the United States under a call by the President, and that under the law as it existed at that time, and as applied to the facts relative to said regiment, a formal muster-in was necessary to induct said militia into the military service of the United States.
The SECRETARY OF WAR.
P. C. KNOX.
AMERICAN EPHEMERIS AND NAUTICAL ALMANACAMERICAN NAUTICAL ALMANAC.
The Secretary of the Navy is authorized, under existing law, to cause to be printed 2,500 copies of the American Ephemeris and Nautical Almanac, and 3,182 copies of "the papers supplementary thereto;" and of the American Nautical Almanac, such "additional" copies thereof as he may deem necessary “for the public service and for sale to navigators and others."
DEPARTMENT OF JUSTICE,
June 8, 1903.
SIR: In your letter of March 14, 1903, you call attention to sections 54 and 73 of the act of January 12, 1895 (28 Stat., 608, 612), the joint resolution of May 13, 1902 (32 Stat., 740), and the act of July 1, 1902 (32 Stat., 678), and request my opinion "as to how many copies of each edition of the American Ephemeris, of the papers supplementary thereto, and of the Nautical Almanac are authorized by existing law to be printed."
It appears that, of its publications, the Navy Department has, for many years, published two books referred to in your note: One, and the larger, bound in cloth, called "The American Ephemeris and Nautical Almanac," and the other, bound in paper, called "The American Nautical Almanac." The former is intended chiefly for the Navy, and for sale or
free distribution to observatories, astronomers, colleges, libraries, etc., and of which the Department disposes annually about 1,000 copies. The other contains in a condensed form much of that which is in the former, and is intended chiefly for the use of navigation, and is adapted to the meridian of Greenwich, of which the Department disposes annually about 2,300 copies.
Your Department publishes also what, in your note and in the acts referred to, are called "the papers supplementary thereto," that is, supplementary to the one first above referred to; and I am asked how many copies of each of the three are now authorized to be printed.
By section 54 of the act of January 12, 1895 (28 Stat., 608), it is provided-
* * *
"Whenever any document or report shall be ordered printed by Congress, such order to print shall signify the 'usual number' of copies for binding and distribution. No greater number shall be printed unless ordered by either House, or as hereinafter provided. When a special number of a document or report is ordered printed, the usual number shall also be printed unless already ordered. The usual number of documents and reports shall be one thousand six hundred and eighty-two copies."
Under this section, a general order to print a document or report, not stating the number of copies, authorizes the printing of the "usual number" of 1,682 copies. Where Congress directs the printing of a stated number of copies, this carries with it the order to print the "usual number," or 1,682 copies in addition, unless the "usual number" has been already ordered.
Section 73 of the same act provides that
"Extra copies of documents and reports shall be printed promptly when the same shall be ready for publication, * * * and shall be of the number following in addition to the usual number.
"Of the Ephemeris and Nautical Almanac and of the papers supplementary thereto, one thousand five hundred copies."
Except as the Secretary is, by this section, further authorized to have additional copies of the Ephemeris and of the