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and so much of the act of August 7, 1789, as imposed duties upon the Secretary of War in connection therewith was repealed (1 Stat. 553).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.1 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.2 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 regul: tions to be observed in the preparation, submission, and opening of bids for contracts under the War Department.

149. Secretary of War to cause colors, etc., to be collected.-The Secretary of War shall from time to time cause to be collected and transmitted to him, at the seat of government, all such flags, standards, and colors as are taken by the Army from the enemies of the United States. Sec. 218, R. S.

150. Transports not to be sold without consent of Congress.-No steamship in the transport service of the United States shall be sold or disposed of without the consent of Congress having been first had or obtained. Act of Mar. 2, 1903 (32 Stat. 938).

151. Transport service not to be discontinued without action of Congress. No action looking to the discontinuance of the transport service shall be taken without further action of Congress. Id.

152. United States vessels to be preferred in transporting supplies, etc.-Vessels of the United States, or belonging to the United States, and no others, shall be employed in the transportation by sea of coal, provisions, fodder, or supplies of any description, purchased pursuant to law, for the use of the Army or Navy unless the President shall find that the rates of freight charges by said vessels are excessive and unreasonable, in which case contracts shall be made under the law as it now exists: Provided, That no greater charges be made by such vessels for transportation of articles for the use of the said Army and Navy than are made by such vessels for transportation of like goods for private parties or companies. Act of Apr. 28, 1904 (33 Stat. 518).

153. Detail of employees to administer oaths.-The Secretary of War is authorized to detail one or more of the employees of the War Department for the purpose of administering the oaths required by law in the settlement of officers' accounts for clothing, camp and garrison equipage, quartermaster's stores, and ordnance, which oaths shall be administered without expense to the parties taking them. Sec. 225, R. S.

154. Superintendent of State, War, and Navy building.-The President is hereby authorized and directed to designate from the Engineer Corps of the Army or the Navy, an officer well qualified for the purpose, who shall be detailed to act as superintendent of the completed portions of the State, War, and Navy Department building, under direction of the Secretaries of State, War, and Navy, who are hereby constituted a commission for the purposes of the care and supervision of said building, as hereinafter specified. Said officer shall have charge of said building, and all the engines, machinery, steam and water supply, heating, lighting, and ventilating apparatus, elevators, and all other fixtures in said building, and all necessary repairs and alterations thereof, as well as the direction and control of such force of engineers, watchmen, laborers, and

others engaged about the building or the apparatus under his supervision; of the cleaning of the corridors and water closets; of the approaches, side-walks, lawns, court-yards, and areas of the building, and of all rooms in the sub-basement which contain the boilers and other machinery, or so much of said rooms as may be indispensable to the proper performance of his duties as herein provided.' Act of Mar. 3, 1883 (22 Stat. 553).

155. Bureau of Insular Affairs.-The Division of Insular Affairs of the War Department, organized by the Secretary of War, is hereby continued until otherwise provided, and shall hereafter be known as the Bureau of Insular Affairs of the War Department. The business assigned to said Bureau shall embrace all matters pertaining to civil government in the island possessions of the United States subject to the jurisdiction of the War Department; and the Secretary of War is hereby authorized to detail an officer of the Army whom he may consider especially well qualified, to act under the authority of the Secretary of War as the chief of said Bureau; and said officer while acting under said detail shall have the rank, pay, and allowances of a colonel. Sec. 87, Act of July 1, 1902 (32 Stat. 712).

156. Chief of Bureau of Insular Affairs to rank as brigadier general. The Chief of the Bureau of Insular Affairs of the War Department shall hereafter be appointed by the President for the period of four years, unless sooner relieved, with the advice and consent of the Senate, and while holding that office he shall have the rank, pay, and allowances of a brigadier general. Act of June 25, 1906 (34 Stat. 456).

157. Assistant, Bureau of Insular Affairs.-The Secretary of War is hereby authorized to detail an officer of the Army, whom he may consider especially well qualified, to act as principal assistant to the Chief of the Bureau of Insular Affairs of the War Department, and said principal assistant while acting under said detail shall have the rank, pay, and allowances of a major. Act of Mar. 2, 1907 (34 Stat. 1162).

158. Same. The provisions of section twenty-seven of the Act of February second, nineteen hundred and one, with reference to the transfer of officers of the line to the departments of the staff for tours of service, shall apply to the vacancy created by this Act and to the return of the officer so detailed to the line of the Army. Id.

159. Same.-The Secretary of War is hereby authorized to detail one additional officer of the army as assistant to the Chief of the

'The Mills Building and the Navy Department Annex are also under the charge of the Superintendent of the State, War, and Navy building. (Act of May 22, 1908, 35 Stat. 218.)