A-22791, AUGUST 8, 1928, 8 COMP. GEN. 64

A-22791: Aug 8, 1928

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BOARDS - POWER TO SUMMON CIVILIAN WITNESSES - FEES THERE IS NO INHERENT POWER IN A MILITARY COURT-MARTIAL. BOARDS ARE BODIES OF LIMITED AND SPECIAL JURISDICTION AND HAVE ONLY SUCH POWERS AS ARE CLEARLY CONFERRED BY STATUTE. A SUBPOENA OR OTHER COMPULSORY PROCESS ADDRESSED TO A CIVILIAN BY A MILITARY COURT OR BOARD WHICH HAS NOT EXPRESS STATUTORY AUTHORITY TO ISSUE SUCH PROCESS IS VOID AB INITIO AND CIVILIAN WITNESSES WHO APPEAR BEFORE THE BOARD IN RESPONSE TO SUCH VOID PROCESS MUST BE REGARDED AS HAVING DONE SO VOLUNTARILY AND ARE NOT ENTITLED TO WITNESS FEES. APPLIED FOR A DECISION AS TO WHETHER HE IS AUTHORIZED TO MAKE PAYMENT UNDER EXISTING APPROPRIATIONS OF FOUR VOUCHERS DRAWN IN FAVOR OF DRS.

A-22791, AUGUST 8, 1928, 8 COMP. GEN. 64

COURTS-MARTIAL, COURTS OF INQUIRY, BOARDS - POWER TO SUMMON CIVILIAN WITNESSES - FEES THERE IS NO INHERENT POWER IN A MILITARY COURT-MARTIAL, COURT OF INQUIRY, OR BOARD, TO COMPEL THE ATTENDANCE OF CIVILIAN WITNESSES BEFORE IT OR TO REQUIRE THEM TO MAKE DEPOSITIONS, EITHER BY SUBPOENA OR OTHER COMPULSORY PROCESS, AND SUCH POWER MAY NEVER BE IMPLIED. MILITARY COURTS-MARTIAL, COURTS OF INQUIRY, AND BOARDS ARE BODIES OF LIMITED AND SPECIAL JURISDICTION AND HAVE ONLY SUCH POWERS AS ARE CLEARLY CONFERRED BY STATUTE. A BOARD OF OFFICERS CONVENED IN ACCORDANCE WITH ARMY REGULATIONS 600 550 TO INVESTIGATE AND REPORT UPON THE FACTS CONNECTED WITH THE DEATH OF AN ENLISTED MAN WHILE ON DETACHED DUTY HAS NOT POWER TO COMPEL THE ATTENDANCE OF CIVILIAN WITNESSES BEFORE IT OR TO REQUIRE THEM TO MAKE DEPOSITIONS, BY SUBPOENA OR OTHER COMPULSORY PROCESS. A SUBPOENA OR OTHER COMPULSORY PROCESS ADDRESSED TO A CIVILIAN BY A MILITARY COURT OR BOARD WHICH HAS NOT EXPRESS STATUTORY AUTHORITY TO ISSUE SUCH PROCESS IS VOID AB INITIO AND CIVILIAN WITNESSES WHO APPEAR BEFORE THE BOARD IN RESPONSE TO SUCH VOID PROCESS MUST BE REGARDED AS HAVING DONE SO VOLUNTARILY AND ARE NOT ENTITLED TO WITNESS FEES, IN THE ABSENCE OF A SPECIFIC APPROPRIATION THEREFOR.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 8, 1928:

MAJ. W. A. MACNICHOLL, FINANCE DEPARTMENT, UNITED STATES ARMY, APPLIED FOR A DECISION AS TO WHETHER HE IS AUTHORIZED TO MAKE PAYMENT UNDER EXISTING APPROPRIATIONS OF FOUR VOUCHERS DRAWN IN FAVOR OF DRS. ALLAN P. MILLER AND CHESTER W. PACKARD AND MESSRS. HARRY G. WEBSTER AND GEORGE A. COCK, RESPECTIVELY, OF LOS ANGELES, CALIF., REPRESENTING A WITNESS FEE OF $2 IN EACH CASE CLAIMED TO BE DUE THEM FOR APPEARING AND TESTIFYING BEFORE A BOARD OF THREE ARMY OFFICERS ON OCTOBER 19, 1927, AT 527 CHAMBER OF COMMERCE BUILDING, LOS ANGELES, WHICH BOARD WAS APPOINTED BY SPECIAL ORDERS, NO. 2, OFFICE OF THE COORDINATING OFFICER, ORGANIZED RESERVES, LOS ANGELES, CLAIF., OF OCTOBER 6, 1927,"TO INVESTIGATE AND REPORT UPON THE FACTS CONNECTED WITH THE DEATH OF STAFF SERGT. WAYNE A. HOOVER, R-900420, D.E.M.L.' AND THEREIN WAS DIRECTED TO BE GOVERNED BY PARAGRAPH 21 A.R. 600-550, WHICH REQUIRES THAT "THE SWORN TESTIMONY OF ALL WITNESSES WILL BE RECORDED AND INCORPORATED IN THE PROCEEDINGS OF THE BOARD" AND THAT, "IF THE WITNESSES ARE NOT AVAILABLE TO APPEAR BEFORE THE BOARD, CERTIFICATES OF OFFICERS AND AFFIDAVITS OF ENLISTED MEN AND CIVILIANS COGNIZANT OF THE FACTS IN THE CASE WILL BE OBTAINED AND APPENDED TO THE PROCEEDINGS OF THE BOARD.'

IT APPEARS FROM THE RECORD PRESENTED THAT STAFF SERGEANT HOOVER, DETACHED ENLISTED MEN'S LIST, ORGANIZED RESERVES, AT THE TIME OF HIS DEATH AT LOS ANGELES, CLAIF., WAS ASSIGNED TO DUTY WITH THE EXECUTIVE OFFICER, THREE HUNDRED AND FORTY-SEVENTH FIELD ARTILLERY, AT THAT PLACE; THAT THE TWO CIVILIAN PHYSICIANS DESIGNATED ABOVE, ON WHOSE BEHALF WITNESS FEES ARE CLAIMED, ATTENDED THE DECEDENT, HOOVER, AT THE REQUEST OF PRIVATE PERSONS, THE WIDOW HAVING PAID TO DOCTOR MILLER $10 FOR THE TWO VISITS HE MADE AND TO DOCTOR PACKARD $5 FOR THE ONE VISIT HE MADE; AND THAT STAFF SERGEANT HOOVER WAS DEAD AND HIS CASE IN THE HANDS OF THE CORONER AT LOS ANGELES BEFORE THE MILITARY AUTHORITIES WERE ADVISED OF THE MAN'S ILLNESS AND DEATH.

THE FOUR PERSONS ON WHOSE BEHALF VOUCHERS FOR WITNESS FEES ARE PRESENTED ARE CIVILIANS NOT IN THE EMPLOY OF THE UNITED STATES, AND IT IS RECITED IN THE SEVERAL VOUCHERS THAT EACH WAS IN ATTENDANCE OCTOBER 19, 1927,"AS A MATERIAL WITNESS" BEFORE A BOARD OF OFFICERS AT LOS ANGELES AND "THAT HE WAS DULY SUMMONED THERETO FROM LOS ANGELES, CALIF.' WHETHER THE PHRASE "DULY SUMMONED" HAS REFERENCE TO A SUBPOENA OR OTHER COMPULSORY PROCESS ISSUED IN THE NAME OF THE BOARD OR MERELY TO SOME LESS FORMAL REQUEST TO APPEAR IS NOT DISCLOSED BY THE RECORD.

BY THE COMMON LAW NO FEES WERE FIXED FOR WITNESSES, BUT THEY WERE COMMANDED BY THE KING'S WRIT, SUBPOENA AD TESTIFICANDUM, TO LAY ASIDE ALL PRETENSES AND EXCUSES AND APPEAR AT THE TRIAL TO TESTIFY UNDER PENALTY OF A CERTAIN SUM, AND THE STATE, IN THE EXERCISE OF ITS SOVEREIGNTY, MAY REQUIRE THE SERVICE OF ITS CITIZENS AS WITNESSES WITHOUT COMPENSATION. COSTS ARE A CREATURE OF STATUTE, AND, IN THE ABSENCE OF A STATUTE AUTHORIZING IT, NO FEES CAN BE TAXED AS COSTS OR RECOVERED. DIXON V. PEOPLE, 39 L.R.A. 116,121, AND NOTE. WITNESSES DETAINED IN PRISON IN ORDER THAT THEY MAY BE IN ATTENDANCE WHEN THE TIME FOR A SESSION OF COURT SHALL ARRIVE ARE NOT ENTITLED TO STATUTORY FEES OTHERWISE FIXED FOR "WITNESSES SUMMONED IN COURT, ATTENDING IN COURT," 1OP.ATTY.GEN. 425; AND NEITHER THE PRESIDENT OF THE UNITED STATES NOR ANY SUBORDINATE OFFICIAL THEREOF HAS ANY POWER TO ORDER THE PAYMENT OF WITNESS FEES NOT SPECIFICALLY AUTHORIZED AND APPROPRIATED FOR BY STATUTE. 6 OP.ATTY.GEN. 356.

ONE MAY BE A WITNESS WITHOUT HAVING BEEN SUBJECTED TO ANY COMPULSORY FORM OF PROCESS OR BEING ENTITLED TO A FEE FOR HIS TESTIMONY, THE ONLY ESSENTIALS BEING THAT HE UNDERSTAND THE NATURE AND OBLIGATION OF AN OATH AND THAT HE TESTIFY UNDER OATH TO SOMETHING WHICH HE KNOWS AT FIRST HAND; THE USUAL METHOD OF EXAMINING WITNESSES IN EQUITY AND ADMIRALTY COURTS AND IN THE COURT OF CLAIMS AT THE PRESENT DAY BEING BY DEPOSITION TAKEN IN WRITING OUT OF COURT. BOUVIER'S LAW DICTIONARY; 2 STORY EQ.JUR. SEC. 1527; 3 GREENL, EV. SEC. 251.

THE POWER OF A MILITARY COURT-MARTIAL, COURT OF INQUIRY, OR BOARD TO COMPEL THE ATTENDANCE OF CIVILIAN WITNESSES BEFORE IT OR TO REQUIRE THEM TO MAKE DEPOSITION, BY SUBPOENA OR OTHER COMPULSORY PROCESS, IS NOT INHERENT.

IN AN OPINION ADDRESSED TO THE SECRETARY OF WAR MARCH 22, 1859, 9 OP.ATTY.GEN. 311, FOR EXAMPLE, ATTORNEY GENERAL BLACK HELD THAT ALTHOUGH THE SEVENTY-FOURTH ARTICLE OF WAR "PROVIDES THAT" ON THE TRIAL OF CASES NOT CAPITAL BEFORE COURTS-MARTIAL, THE DEPOSITION OF WITNESSES NOT IN THE STAFF OR LINE OF THE ARMY MAY BE TAKEN BEFORE SOME JUSTICE OF THE PEACE AND READ IN EVIDENCE," " OVER CIVIL WITNESSES AND PERSONS NOT SUBJECT TO MILITARY LAW, THE POWER OF COMPELLING ATTENDANCE TO TESTIFY OR OF COMPELLING THE MAKING OF A DEPOSITION IN A MATTER PENDING BEFORE A COURT- MARTIAL HAD NOT BEEN VESTED EITHER IN THE COURT-MARTIAL OR IN ANY CIVIL MAGISTRATE, JUDGE, OR TRIBUNAL.

SECTION 25 OF THE SUNDRY CIVIL APPROPRIATION ACT OF MARCH 3, 1863, GAVE POWER TO EVERY JUDGE ADVOCATE OF A MILITARY COURT-MARTIAL OR COURT OF INQUIRY THEREAFTER CONSTITUTED TO ISSUE THE LIKE PROCESS TO COMPEL WITNESSES TO APPEAR AND TESTIFY WHICH COURTS OF CRIMINAL JURISDICTION MIGHT ISSUE WITHIN THE SAME STATE, TERRITORY, OR DISTRICT WHERE THE COURT- MARTIAL OR COURT OF INQUIRY HAD BEEN ORDERED TO SIT AND ON OCTOBER 2, 1868, 12 OP.ATTY.GEN. 501, THE THEN ACTING ATTORNEY GENERAL ADVISED THE SECRETARY OF WAR SUCH SECTION AUTHORIZED COMPULSORY PROCESS TO BE ISSUED FOR THE ATTENDANCE OF CIVILIANS AS WITNESSES BEFORE COURTS-MARTIAL. BUT SEE IN THIS CONNECTION 18 OP.ATTY.GEN. 278; 23 ID. 424.

SECTION 25 OF THE 1863 STATUTE IN SO FAR AS MILITARY COURTS-MARTIAL WERE CONCERNED WAS EMBODIED IN SECTION 1202 OF THE REVISED STATUTES BUT FOR SOME REASON THE PART OF THE SECTION REFERRING TO COURTS OF INQUIRY WAS OMITTED, AND IN THIS STATE OF THE LAW RELATING TO MILITARY COURTS-MARTIAL ATTORNEY GENERAL MILLER IN HIS OPINION TO THE SECRETARY OF THE NAVY OF FEBRUARY 26, 1890, 19 OP.ATTY.GEN. 501, HAD BEFORE HIM WHETHER THE SAID SECTION 1202 OF THE REVISED STATUTES RELATING TO MILITARY COURTS-MARTIAL AUTHORIZED NAVAL COURTS-MARTIAL OR COURTS OF INQUIRY TO ISSUE COMPULSORY PROCESS TO CIVILIANS, PARTICULARLY IN VIEW OF THE FORTY-SECOND AND FIFTY- SEVENTH ARTICLES FOR THE GOVERNMENT OF THE NAVY, PROVIDING:

42. WHENEVER ANY PERSON REFUSES TO GIVE HIS EVIDENCE OR TO GIVE IT IN THE MANNER PROVIDED BY THESE ARTICLES, OR PREVARICATES, OR BEHAVES WITH CONTEMPT TO THE COURT, IT SHALL BE LAWFUL FOR THE COURT TO IMPRISON HIM FOR ANY TIME NOT EXCEEDING TWO MONTHS.

57. COURTS OF INQUIRY SHALL HAVE POWER TO SUMMON WITNESSES, ADMINISTER OATHS, AND PUNISH CONTEMPT, IN THE SAME MANNER AS COURTS MARTIAL; * * *

UPON FULL CONSIDERATION OF THESE STATUTES THE ATTORNEY GENERAL HELD THAT A NAVAL COURT-MARTIAL OR COURT OF INQUIRY OR JUDGE ADVOCATE THEREOF HAD NO POWER TO COMPEL A CIVILIAN WITNESS, NOT SUBJECT TO THE ARTICLES FOR THE GOVERNMENT OF THE NAVY, TO APPEAR AND TESTIFY BEFORE SUCH COURT-MARTIAL OR COURT OF INQUIRY, AND IT WAS ONLY DUE TO THE AMENDMENT OF THE CITED ARTICLE 42 BY SECTIONS 11 AND 12 OF THE ACT OF FEBRUARY 16, 1909, 35 STAT. 621, 622, THAT NAVAL COURTS-MARTIAL AND COURTS OF INQUIRY HAVE A POWER TO ISSUE PROCESS TO CIVIL WITNESSES ANALOGOUS TO THAT POWER GRANTED ARMY COURTS-MARTIAL IN SECTION 1202 OF THE REVISED STATUTES, AND NOW, BY THE TWENTY-SECOND ARTICLE OF WAR.

THERE IS AN OBSERVATION BY ATTORNEY GENERAL MILLER AT THE CONCLUSION OF HIS OPINION, ON PAGE 503, WHICH IS PERTINENT HERE AND IS AS FOLLOWS:

* * * IT MUST BE REMEMBERED THAT A COURT-MARTIAL IS A COURT OF LIMITED AND SPECIAL URISDICTION; THAT IT ONLY HAS SUCH POWERS AS ARE CLEARLY CONFERRED BY STATUTE. NOTHING CERTAINLY IN THE WAY OF CONTROL OVER CIVILIANS IS TO BE TAKEN IN ITS FAVOR BY IMPLICATION.

THESE OPINIONS OF THE ATTORNEYS GENERAL SEEM EFFECTUALLY TO DISPOSE OF AND TO DEMONSTRATE THE UNSOUNDNESS OF THE SUGGESTION ACCOMPANYING THE PRESENT SUBMISSION FOR DECISION THAT THERE MAY EVER BE IMPLIED, OR ACCEPTED AS INHERENT IN A MILITARY COURT, OR BOARD, OR ANY OFFICER THEREOF, THE POWER BY COMPULSORY PROCESS TO CONTROL OR DEPRIVE OF HIS LIBERTY A CIVILIAN TO OBTAIN HIS TESTIMONY AS A WITNESS. THE REASON OF SO LIMITING THE POWER OF A COURT-MARTIAL, WHICH HAS JUDICIAL FUNCTIONS OF GREAT MOMENT EXTENDING EVEN TO THE INFLICTING OF CAPITAL PUNISHMENT, IS MORE APPARENT WHEN APPLIED TO MERE FACT-FINDING BOARDS. IT MUST BE UNDERSTOOD THAT MILITARY ORGANIZATIONS ARE STATUTORY BODIES ONLY AND NOT CONSTITUTIONAL BODIES IN THIS RESPECT AS IS THE JUDICIAL BRANCH. THAT SUCH BOARDS HAVE VERY LIMITED POWERS, SUBJECT TO ENLARGEMENT ONLY BY EXPRESS PROVISION OF STATUTE, HERETOFORE HAS BEEN REPEATEDLY RECOGNIZED IN OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY. FOR EXAMPLE, IN HOWLAND'S DIGEST, UNDER DISCIPLINE, XVIII A, APPEARS THE FOLLOWING: A BOARD OF OFFICERS CONVENED TO INVESTIGATE--- OBTAIN OR HEAR AND EXAMINE EVIDENCE--- AND REPORT, CAN, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, EXERCISE NONE OF THE PECULIAR LEGAL FUNCTIONS EITHER OF A COURT -MARTIAL OR OF A COURT OF INQUIRY. R. 2, 340, MAY, 862; 21, 335, APR., 1866; 26, 492, MAR., 1868; 32, 3 MAY, 1871; 41, 263 JUNE 1878. ITS MEMBERS CAN NOT BE SWORN; IT CAN NOT SWEAR WITNESSES (BUT SEE SEC. 183 R.S. AS AMENDED); CIVILIAN WITNESSES CAN NOT BE COMPELLED TO APPEAR BEFORE IT; NOR ARE THE WITNESSES WHO APPEAR AND TESTIFY LEGALLY ENTITLED TO ANY COMPENSATION FOR ATTENDANCE OR TRAVEL. R. 11, 672. APR., 1865; 21, 335, SUPRA; 26, 492, SUPRA. SUCH A BOARD CAN NOT TRY, NOR CAN IT SENTENCE. 11, 672, SUPRA; 32, 3, SUPRA. THERE IS PROPERLY NO "ACCUSED" PARTY REQUIRED OR ENTITLED TO APPEAR BEFORE IT AS BEFORE A COURT-MARTIAL OR COURT OF INQUIRY. R. 2, 340, SUPRA. IT IS NOT RESTRICTED BY LAW AS TO THE PERIOD OF ITS SITTINGS, NOR IS IT AFFECTED BY ANY STATUTE OF LIMITATIONS. R. 26, 493, MAR., 1868. * * *

THE SUGGESTION WHICH ACCOMPANIES THE APPLICATION FOR DECISION THAT THE TWENTY-THIRD ARTICLE OF WAR IMPLIES AUTHORITY IN SUCH A BOARD AS THAT APPOINTED TO INVESTIGATE THE CIRCUMSTANCES OF STAFF SERGEANT HOOVER'S DEATH TO COMPEL THE ATTENDANCE BEFORE IT OF CIVILIAN WITNESSES SEEMS NOT TO DERIVE ANY SUPPORT FROM THE LANGUAGE OF THAT ARTICLE, WHICH READS:

REFUSAL TO APPEAR OR TESTIFY.--- EVERY PERSON NOT SUBJECT TO MILITARY LAW WHO, BEING DULY SUBPOENAED TO APPEAR AS A WITNESS BEFORE ANY MILITARY COURT, COMMISSION, COURT OF INQUIRY, OR BOARD, OR BEFORE ANY OFFICER, MILITARY OR CIVIL, DESIGNATED TO TAKE A DEPOSITION TO BE READ IN EVIDENCE BEFORE SUCH COURT, COMMISSION, COURT OF INQUIRY, OR BOARD, WILLFULLY NEGLECTS OR REFUSES TO APPEAR, OR REFUSES TO QUALIFY AS A WITNESS, OR TO TESTIFY, OR PRODUCE DOCUMENTARY EVIDENCE WHICH SUCH PERSON MAY HAVE BEEN LEGALLY SUBPOENAED TO PRODUCE, SHALL BE DEEMED GUILTY OF A MISDEMEANOR, FOR WHICH SUCH PERSON SHALL BE PUNISHED ON INFORMATION IN THE DISTRICT COURT OF THE UNITED STATES OR IN A COURT OF ORIGINAL CRIMINAL JURISDICTION IN ANY OF THE TERRITORIAL POSSESSIONS OF THE UNITED STATES, JURISDICTION BEING HEREBY CONFERRED UPON SUCH COURTS FOR SUCH PURPOSE: * * * PROVIDED, THAT THE FEES OF SUCH WITNESS AND HIS MILEAGE, AT THE RATES ALLOWED TO WITNESSES ATTENDING THE COURTS OF THE UNITED STATES, SHALL BE DULY PAID OR TENDERED SAID WITNESS, SUCH AMOUNTS TO BE PAID OUT OF THE APPROPRIATION FOR THE COMPENSATION OF WITNESSES: * * *

THE SUGGESTION THAT THIS ARTICLE IN ITSELF CONFERS ANY POWER OR GIVES RISE TO ANY IMPLICATION OF POWER IN A COURT OR BOARD TO SUMMON WITNESSES ENTIRELY IGNORES THE OPENING WORDS,"EVERY PERSON NOT SUBJECT TO MILITARY LAW, WHO, BEING DULY SUBPOENAED TO APPEAR AS A WITNESS * * *.' DETERMINE WHO IS "DULY SUBPOENAED" IT IS CLEAR REFERENCE MUST BE TO OTHER STATUTES, AND UNLESS THERE IS FOUND ONE CONFERRING UPON A PARTICULAR COURT OR BOARD THE POWER TO COMPEL CIVILIANS TO ATTEND BEFORE IT BY SUBPOENA, AS WAS CARRIED INTO THE CITED SECTION 1202 OF THE REVISED STATUTES AND AS NOW IS FOUND IN THE TWENTY-SECOND AND ONE HUNDRED AND FIRST ARTICLES OF WAR WITH RESPECT TO COURTS-MARTIAL AND COURTS OF INQUIRY, SUCH POWER MAY NOT BE EXERCISED; WHERE AN ATTEMPT IS MADE TO EXERCISE SUCH POWER WITHOUT SPECIFIC STATUTORY AUTHORITY THE ACTION IS A NULLITY AND ANY WITNESS APPEARING MUST BE REGARDED AS HAVING DONE SO VOLUNTARILY AND WITHOUT AN EXPECTANCY OF COMPENSATION. 9 OP.ATTY.GEN. 311; 19 ID. 501; SHERWIN V. UNITED STATES, 297 FED.REP. 704; OPS.J.A.G. 2504, AUG. 19, 1918; ID. 158, JULY 28, 1923; ID. 158, DECEMBER 3, 1923.

WHILE REFERENCE HAS BEEN MADE IN THE RECORD ACCOMPANYING THE APPLICATION FOR DECISION TO PARAGRAPH 21, A.R. 600-550, AND TO PARAGRAPH 189, SECTION 111, MANUAL FOR COURTS-MARTIAL, UNITED STATES ARMY, 1921 EDITION, AS REQUIRING THE BOARD TO COMPEL THE ATTENDANCE BEFORE IT OF CIVILIAN WITNESSES FOR THE PURPOSE OF TESTIFYING UNDER OATH AND AS REQUIRING THE RECORDER OF THE BOARD TO TENDER TO THE WITNESSES SO APPEARING WITNESS VOUCHERS PROPERLY FILLED OUT, IT MUST BE RECOGNIZED IN THIS CONNECTION THAT THE AUTHORITY OF THE SECRETARY OF WAR TO ISSUE ORDERS, REGULATIONS, AND INSTRUCTIONS, WITH THE APPROVAL OF THE PRESIDENT, IN REFERENCE TO MATTERS CONNECTED WITH THE MILITARY ESTABLISHMENT, IS SUBJECT TO THE CONDITION, NECESSARILY IMPLIED, THAT THEY MUST BE CONSISTENT WITH THE STATUTES WHICH HAVE BEEN ENACTED BY THE CONGRESS IN REFERENCE TO THE ARMY. 18 R.C.L. 1016, SEC. 5; 1 COMP. GEN. 347. IF THE REGULATIONS AND MANUAL SHOULD ASSERT THE EFFECT ATTRIBUTED TO THEM IN THE RECORD, THEY NECESSARILY WOULD BE TREATED INEFFECTIVE, IN SO FAR AS IN CONFLICT WITH THE EXISTING LAW.

IT IS CLEAR, HOWEVER, FROM A CAREFUL READING OF THE CITED PARAGRAPH 21, ARMY REGULATIONS 600-550, THAT IT IS RECOGNIZED THEREIN SUCH A BOARD OF OFFICERS AS IS AUTHORIZED TO BE APPOINTED HAS NO POWER BY COMPULSORY PROCESS TO COMPEL THE ATTENDANCE BEFORE IT OF CIVILIAN WITNESSES; HENCE, THE ALTERNATIVE REQUIREMENT THAT "IF THE WITNESSES ARE NOT AVAILABLE TO APPEAR BEFORE THE BOARD, CERTIFICATES OF OFFICERS AND AFFIDAVITS OF ENLISTED MEN AND CIVILIANS COGNIZANT OF THE FACTS IN THE CASE WILL BE OBTAINED AND APPENDED TO THE PROCEEDINGS OF THE BOARD.' IT IS ALSO CLEAR THE MANUAL FOR COURTS-MARTIAL PRIMARILY HAS REFERENCE TO WITNESSES "DULY SUBPOENAED TO APPEAR" IN THE MANNER AUTHORIZED IN THE TWENTY-SECOND AND ONE HUNDRED AND FIRST ARTICLES OF WAR.

THE BOARD OF OFFICERS APPOINTED BY SPECIAL ORDERS, NO. 2, OFFICE OF THE COORDINATING OFFICER, ORGANIZED RESERVES, LOS ANGELES, CALIF., OCTOBER 6, 1927, WAS WITHOUT AUTHORITY OF LAW TO SUMMON CIVILIAN WITNESSES BEFORE IT, OR TO REQUIRE THEM TO MAKE DEPOSITIONS, BY ANY COMPULSORY PROCESS, AND THERE IS NO PROVISION UNDER EXISTING LAWS OR APPROPRIATIONS FOR THE PAYMENT OF WITNESS FEES TO THE FOUR CIVILIAN RESIDENTS OF LOS ANGELES WHO APPEARED BEFORE IT AND GAVE THEIR TESTIMONY. PAYMENT OF THE VOUCHERS WHICH ARE RETAINED HERE, ACCORDINGLY, MUST BE DENIED.