ance of extra pay is not to apply to the troops of the engineer and ordnance departments.25-Sec. 7, July 13, 1866, chap. 176.

and quarters, and no extra pay, will, under any circumstances, be authorized.-G. O. No. 92, A.-G. O., 1868; and G. O. No. 30, ibid., 1869.

(a.) The war department having designated no clerical duty as coming within the act of 1866, except that at the bureau of the war department, at the headquarters of the army, and military division and department headquarters, no other clerical duty will be recognized by the accounting officers as entitling the soldier to extra-duty pay. -Second Comptroller, 1346. But the superintendents of the general recruiting service will hereafter be allowed, each, three enlisted men for duty as clerks, and one enlisted man as orderly, whose extra pay, etc., is to be the same as that granted to general service detachments at headquarters divisions, and departments (see first paragraph of this note).-Circular, A.-G. O., August 23, 1869.

"When a soldier is employed as a clerk, under such circumstances as entitle him to extra pay for constant labor of not less than ten days' duration, he should, I think, be paid, as a skilled man or artificer, at thirty-five cents per day."

"In regard to the persons who may be entitled, the accounting officers refer to the action of the war department and its bureaus, designating the parties to whom extra duty has been assigned in such sense as to give them a right to extra pay."-Second Comptroller, November 26, 1870.

(b.) The medical department is to pay from its own appropriations accounts for extra-duty pay of enlisted men employed in the offices of the assistant surgeon-general and the medical directors of departments.-Paymaster's Manual (1871),

112.

(c.) Hospital stewards and ordnance sergeants (of posts) are not entitled to extraduty pay.-Ibid., ¶ 111.

"When a hospital steward is taken from his appropriate duties in connection with a hospital, and detailed to duty elsewhere as clerk, he is thereby put on extra duty, and becomes entitled to extra-duty pay, just as another enlisted man would be for performing the same extra labor."-Secretary of War, August 30, 1871.

Said decision applies to hospital stewards on duty as clerks in the medical director's office at department headquarters, and is retroactive.-Adjutant-general, December 5,

1871.

The "clerical duty" of hospital stewards recognized, eo nomine, as extra-duty, by the act to supply deficiencies, etc., approved May 18, 1872.

(d.) For allowance of extra-duty pay to hospital attendants (payable by pay department), see Chap. xi., note 13 h.

(e.) "The secretary of war has decided against the payment of extra-duty pay to soldiers employed as clerks to post quartermasters, post commissaries of subsistence, regimental clerks, company clerks, and clerks at post headquarters."—Adjutant-general, May 18, 1872.

25 But see Chap. xi., note 13 h.

CHAPTER IX.

THE SUBSISTENCE DEPARTMENT.

ORGANIZATION.

260. THE subsistence department' of the army shall hereafter consist of the number of officers now authorized by law, viz.: one commissary-general of subsistence, with the rank, pay, and emoluments of a brigadier-general; two assistant commissary-generals of subsistence, with the rank, pay, and emoluments of colonels of cavalry; two assistant commissary-generals of subsistence, with the rank, pay, and emoluments of lieutenant-colonels of cavalry; eight commissaries of subsistence, with the rank, pay, and emoluments of majors of cavalry; and sixteen commissaries of subsistence, with the

1 THE SUBSISTENCE DEPARTMENT had its origin in the act of April 14, 1818, which, in sec. 6, enacted that: "As soon as the state of existing contracts for the subsistence of the army shall, in the opinion of the President of the United States, permit it, there shall be appointed by the President, by and with the advice and consent of the Senate, one commissary-general," etc. The last clause of that section provided that "the commissary-general and his assistants shall perform such duties, in purchasing and issuing of rations to the army of the United States, as the President may direct," and thus withdrew the subsistence of the army from the purchasing department. This section, together with those in ¶¶262, 263, 271, was (by provision of the 10th sec. of same act) to continue in force for five years from the passage of the act, "and thence to the end of the next session of Congress, and no longer." But the (6th) section was supplied by sec. 8 of the act, "to reduce and fix the military peace establishment,” approved March 2, 1821, and enacting: "That there shall be one commissary-general of subsistence; and that there shall be as many assistant commissaries as the service may require, not exceeding fifty, who shall be taken from the subalterns of the line, and shall, in addition to their pay in the line, receive a sum not less than ten, nor more than twenty, dollars per month; and that the assistant quartermasters, and assistant commissaries of subsistence, shall be subject to duties in both departments, under the orders of the secretary of war." This section, "having never been repealed or superseded by any subsequent law, is yet [1836], by virtue of its original enactment as a permanent law, in full force."-3 Opinions, 87. See note 7.

(a.) Status of the department.-The purchasing department had, from its organization, been recognized as of the "general staff," and that portion of its duties transferred to the subsistence department being of the nature incumbent upon staff officers, the new department was classified under the same general title (see Army Register, May, 1818); and if the act of 1821 be considered (as statutes should be: 6 Wallace, 458), in the order of its clauses, as enacted, there is no doubt of the propriety of this classification. See also note 2 a.

2 APPOINTMENTS.-The commissary-general to be selected from the department (536), and temporary vacancy in his office to be filled under provisions of ¶¶9–12. But see¶538.

(a.) The act of April 24, 1816 (¶ 532), provided that the staff of the army be taken from the line or from civil life; but the acts of March 2, 1829, and September 26, 1850, provided that the commissaries thereby added to the organization of the depart

rank, pay, and emoluments of captains of cavalry.-Sec. 16, July 28, 1866, chap. 299.

261. That the President of the United States be and he is hereby empowered, as he may deem it expedient, either to appoint, for the time being, a special commissary or commissaries, for the purpose of supplying by purchase or contract, and of issuing, or to authorize any officer or officers in the quartermaster-general's department to supply and issue, as aforesaid, the whole or any part of the subsistence of the army, in all cases where, either from the want of contractors, or from any deficiency on their part, or from any other contingency, such measure may be proper and necessary in order to insure the subsistence of the army, or of any part thereof; and such special commissaries shall, each, whilst employed, be entitled to the pay and emoluments of a deputy quartermaster-general.-Sec. 8, March 3, 1813, chap. 48.

262. Supplies for the army, unless in particular and urgent cases the secretary of war should otherwise direct, shall be purchased by contract, to be made by the commissary-general [of subsistence]

ment should be selected from the line of the army, and the act of July 7, 1838, provided that those officers to be appointed under the act of July 5, same year, "shall not be separated from the line of the army." During the late rebellion provision was made for appointing volunteers to vacancies. See acts of August 3, 1861, and February 9, 1863.

(b.) A commissary of subsistence to each army corps, to have rank of lieutenantcolonel: Chap. xviii., 523. And a commissary with the rank of major, and an assistant with the rank of captain, to each brigade of militia or volunteers: Chap. xxv., 822.

3 ACTING ASSISTANT COMMISSARIES OF SUBSISTENCE.-As assistant commissaries of subsistence are no longer appointed, the propriety of designating as "acting assistants" those line officers detailed to act as "commissaries of subsistence," may well be doubted; but this designation has been adopted in the act of July 15, 1870 (see Chap. xi., 321), giving them one hundred dollars per annum in addition to the pay of their "rank."

Copies of orders appointing or relieving these officers must be forwarded to the commissary-general.-G. O. No. 40, A.-G. O., 1866.

But the act of 1870 is qualified by that of 1821 (see note 1), and no officer above the rank of first lieutenant is entitled to the extra pay.-Paymaster's Manual (1871), ¶ 159. A regimental quartermaster, or adjutant, debarred from this extra pay.-Adjutantgeneral, June 21, 1871.

Officers of engineer, ordnance, and medical corps, "not being line officers," are not entitled to the additional pay.-Second Comptroller, 104, 105.

An acting assistant commissary of subsistence, to be paid his additional pay, must obtain, as heretofore, the certificate of the commissary-general of subsistence as to the service. He may be paid the additional allowance on his regular pay account, filing such certificate therewith.-Paymaster's Manual (1871), ¶ 159.

This section seems to have been supplied by the act of 1818, creating a military corps of officers charged especially with the subsistence of the army; but the section appears in Brightly's Digest as of effect in 1857, and in 1866 it was referred to by the chief justice of the court of claims as being still operative.--Sec. 2, Nott & Huntington, 44. In the compilations of military laws, by Callan, Cross, and Mordecai, the above section is regarded as repealed by the act of March 3, 1815, but there is nothing in the terms of that act affecting the authority conferred upon the President by that section.

on public notice, to be delivered, on inspection, in the bulk, and at such places as shall be stipulated, which contract shall be made under such regulations as the secretary of war may direct.5-Sec. 7, April 14, 1818, chap. 61.

263. The commissary-general and his assistants shall not be concerned, directly or indirectly, in the purchase or sale, in trade or commerce, of any article entering into the composition of the ration allowed to the troops in the service of the United States, except on account of the United States, nor shall such officer take and apply to his own use any gain or emolument for negotiating or transacting any business connected with the duties of his office, other than what is or may be allowed by law; and the commissary-general and his assistants shall be subject to martial law."-Sec. 9, ibid.

264. That the seventh, eighth, ninth, and tenth sections of the act entitled "An act regulating the staff of the army," passed April 14, 1818, be and the same are hereby continued in force until repealed by Congress -March 3, 1835, chap. 49.

265. Commissioned officers of the army, serving in the field, shall hereafter be permitted to purchase rations for their own use, on credit, from any commissary of subsistence, at cost prices, and the amount due for rations so purchased shall be reported monthly to the paymaster-general, to be deducted from the payment next following such purchases. And the secretary of war is hereby

5 CONTRACTS.-See Chap. iii., ¶¶ 96–111.

6 And are to give bonds for the faithful discharge of their duties: Chap. iii., ¶ 37. The seventh, eighth, and ninth sections are in ¶¶ 262, 271, 263 respectively. But the tenth section "provided, That the sixth [see note 1], seventh, eighth, ninth, and tenth sections of this act shall continue and be in force for the term of five years from the passing of the same, and thence until the end of the next session of Congress, and no longer." The seventh, eighth, ninth, and tenth sections were continued for five years by the act of January 23, 1823; and the sixth, seventh, eighth, ninth, and tenth sections, and the eighth section, act of March 2, 1821 [quoted in note-1], were continued for five years "and no longer," by act of March 2, 1829. Advising upon this curious legislation, the attorney-general held that the act of 1829 did not withdraw sec. 8, act of 1821, from its position as a permanent law, but merely provided that the 6th sec. of the act of 1818, as modified by the 8th sec. of the act of 1821, should be in force for five years and no longer; that this provision not being continued in the act of 1835 (¶ 264), that section of the law of 1818 has expired, but the law of 1821 obtains.-3 Opinions, 87.

8 SALES OF SUBSISTENCE.-Sales to officers on credit discontinued by G. O. No. 3, A.-G. O., 1868.

Any officer of the army, including retired officers, whether on duty or not, may, on the conditions prescribed in the Army Regulations, make purchases from the subsistence department. When an officer is absent from his family, any member thereof designated by him (in writing, to the issuing commissary) may in his name make such purchases. The number and designation of the family should be stated in the notice filed. The subsistence department is not required to deliver the stores or to receive payment therefor elsewhere than at the store-house. Stores should be purchased monthly, and the commissary may decline to sell an unreasonable amount to any officer. -See Circular No. 4, Commissary-general of Subsistence, July 22, 1868.

directed to issue such orders and regulations as he may deem best calculated to insure the proper observance hereof.-Sec. 5, March 3, 1865, chap. 81.

266. The secretary of war is hereby authorized and directed to cause tobacco to be furnished to the enlisted men of the army at cost prices, exclusive of the cost of transportation, in such quantities as they may require, not exceeding sixteen ounces per month, and the amount due therefor shall be deducted from their pay in the same manner as at present provided for the settlement of clothing accounts.-Sec. 6, ibid.

267. The office of sutler in the army and at military posts is hereby abolished, and the subsistence department is hereby authorized and required to furnish such articles as may from time to time be designated by the inspector-generals of the army, and the same to be sold to officers and enlisted men at cost prices; and if not paid for when purchased, a true account thereof. shall be kept, and the amount due the government shall be deducted by the paymaster at the payment next following such purchase. Provided, That this section shall not go into effect until the 1st day of July, 1867. -Sec. 25, July 28, 1866, chap. 299.

268. That the President be and he is hereby authorized to cause such rations as he shall judge proper, and as can be spared from the army provisions without injury to the service, to be issued, under such regulations as he shall think fit to establish, to Indians who may visit the military posts or agencies of the United States on the frontiers, or in their respective nations, and a special account of these issues shall be kept and rendered."-Sec. 16, June 30, 1834, chap. 162.

THE RATION.

269. The commissioned officers aforesaid" shall be entitled to

Sales to officers and enlisted men will be made at the price stated on the invoice of the supply of the article last received at the post.-Commissary-general, 1871.

Commanding officers of companies are authorized to purchase for their companies at the same prices that are charged to officers.-G. O. No. 87, A.-G. O., 1867.

COAST SURVEY.-Sales of subsistence may be made to officers of the coast survey (upon their written application) at cost prices, with transportation added.-Circular No. 5, Commissary-general, 1866. See also ¶ 91.

(a.) This section authorizes sales on credit to both officers and enlisted men, but the war department has not made provision for its being carried into effect.

9 Officers will be charged by the paymaster-general with the cost of all tobacco receipted for by them on the "Tobacco Return," and not properly charged on the muster-roll.-G. O. No. 64, A.-G. O., 1866.

10 Issues to Indians, and sales to Indian agents, must be governed by the conditions set forth in the Army Regulations. See G. O. No. 54, A.-G. O., 1872.

11 Only so much of this section as provides for the issue of rations to enlisted men, laundresses, matrons, and nurses, is now in force.