as militia for the usual constitutional purposes; and, further, the members as individuals can be drafted by the Federal government. But inasmuch as such forces do not constitute the National Guard, as the National Guard is known to the recent National Defense Act, the members thereof are not subject to draft under the second paragraph of section 1 of said act as members of said National Guard.

War Dept., J. A. G. O., Oct. 22, 1917.-To the Chief of the Militia

Bureau.

1. The views of this office are desired relative to the rank of two colonels in the 1st Brigade, Infantry, Minnesota National Guard. The military records of these men are as follows:

Colonel Huber V. Eva was in the service of the National Guard of Minnesota from May 8, 1898, to November 18 of that year. He was, during that time, Captain of Company A, 14th Regiment of Minnesota Volunteers, and served during that time in the Spanish-American War. From the 30th of June, 1916, to the 19th of September of that year, he was a colonel in the 3d Minnesota Infantry, and served on the Mexican border. He claims in all a total service of 368 days.

Colonel E. D. Luce was in the service of the National Guard of Minnesota from the 30th of June, 1916, to the 14th day of July, 1917. He was, from the 30th of June, 1916, to the 14th of March, 1917, on the Mexican border; and from the 26th day of March, 1917, to the 14th day of July, 1917, he was, under the call, doing duty as a National Guardsman in protecting public utilities. He claims a total

service of 369 days.

2. It is stated by the Militia Bureau that these men were called into the Federal service on the same date. This being the situation, the question of their relative rank in the Federal service must be determined by section 1219, R. S. (Comp. St. 1916, § 1921), and the 119th Article of War (Comp. St. 1916, § 2308a). These statutes relate to rank and precedence among Regulars, Militia and Volunteers, and provide for appointment and commission. In an opinion by this office rendered October 17, 1917, in commenting upon the meaning and intention of these enactments, it was observed:

"That section 1219, R. S., applies to officers of the Army, without express regard to classes; and that the 119th Article has to do with arranging all officers in the service of the United States into classes and specifying the order of precedence of these classes. Obviously, an officer of the senior class will rank any officer of the same grade in a junior class, regardless of respective dates of appointment or other

incidents of office. In the determination of rank as between officers of the same grade and date of appointment of the different classes enumerated in the 119th Article, section 1219, R. S., can have no application whatever, and, construing the two statutes together as they must be construed, the latter finds its field of operation only in determining rank inter sese between officers of the same grade and date of appointment within a single one of the several classes enumerated in the Article."

The service of these men can be sharply distinguished as service in the Spanish-American War and service as National Guardsmen on the Mexican border and in guarding public utilities. It is the distinction between service in response to a call as distinguished from service rendered pursuant to a draft into the Army of the United States. Therefore, the question is squarely presented: What is actual service as a commissioned officer of the United States? This office held, in the opinion just referred to, that the service required is service as a commissioned officer of the United States, and that the office must be an office of the United States, established by the laws of the United States; and that the appointment to fill it must be made in the manner provided by the Constitution and laws of the United States. Under such holding, clearly service in the National Guard, whether when called into the Federal service or otherwise, could not be the service which is required by section 1219, R. S., and that officers of the National Guard cannot be officers of the United States, and that the National Guard itself, whether within or without the service of the United States, is no part of the United States Army. In this connection the sharp legal and historical distinction between the National Guard of the several states and alter nomen for the militia of the several states, and the Army of the United States, must be considered and recognized. The militia status of the National Guard obviously remains in effect up to the point where the individual members thereof are by draft placed in the Army of the United States. Therefore, whether the National Guard be not in the service of the United States, or whether it be called into the service of the United States for the constitutional purpose "to execute the laws of the Union, suppress insurrection or repel invasion," it is still a state force; and its relation to the Federal government is that of a state military force subject, under the Constitution, to be requisitioned as such for limited. Federal purposes. The National Guard as such never became Federalized. Its members became a Federal force only when drafted into the Army of the United States, and its officers became officers of the United States only when, upon the draft they became appointed officers of the United States Army.

3. The National Defense Act never loses sight of this distinction. The constitutional power of Congress calling the militia into the Federal service is invoked by section 101 of the bill which contemplates the call of the National Guard as such; that is, an Organized Militia. for the specified constitutional purposes. When in the active service. of the United States under such call the militia serves as militia of the several states. But an entirely different constitutional power is invoked. by section 111 of the National Defense Act. That section provides

for the draft of the members of the militia into the Army of the United States for general war purposes. There the constitutional power of Congress to raise and support armies is not as members of the National Guard or militia nor to serve as militia, but as members of the Army of the United States. There is, then, no such thing as drafting the National Guard into the Federal service as such; only its members as individual citizens are drafted. The National Guard with its officers, its organizations and its organizational relations is not drafted. There is no connection in the eyes of the law between the status which an individual occupies as a member of the National Guard, and the status which he occupies after he has been drafted into the service of the United States; and there is no connection between those two statuses. The service of an officer in the former capacity is not service as a commissioned officer of the United States, nor is it service in the Army of the United States. The service of an officer in the latter capacity is, of course, service as a commissioned officer in the Army of the United States. The National Guard, therefore, called, for constitutional purposes, into the service of the United States is obviously not a part of the Army. This distinction is preserved and sharply recognized in the National Defense Act.

4. By way of summary, the only service that can be counted in determining rank and precedence is service as a commissioned officer of the United States, and not service as a commissioned officer of the National Guard called, for constitutional purposes, into the Federal service. The National Guard, or the Organized Militia, called into the service in its militia capacity is to be sharply distinguished, in its Federal relation, from the National Guard drafted into the Army. In the former case the National Guard is primarily a state institution subject to a limited Federal use without changing its legal status; in the latter the members of the Guard become officers and soldiers of the Army of the United States. The service of an officer in the former capacity is not service as a commissioned officer of the United States, while the service of an officer in the latter capacity is, of course, service as a commissioned officer.

5. It is therefore the opinion of this office that an officer of the Army of the United States cannot count his commissioned service in the National Guard when called into the service of the United States for constitutional purposes in order to establish his rank over other officers of the same grade and date of appointment; that rank is a matter of statute, and is to be determined by the statute and not by general considerations; and that National Guard service on the Mexican border, or in guarding, in response to a Federal call, public utilities, is not service under draft, and is not service as a part of the Army of the United States. In a word, the conclusion must be that service rendered by an officer of the National Guard is not and cannot be service as a commissioned officer of the United States Army. [Signed] S. T. Ansell,

CJL.

Acting Judge Advocate General.

4. COMMANDING OFFICERS' AUTHORITY TO AID CIVIL AUTHORITIES

Army II D.

WITH TROOPS

2d Ind.

War Department, J. A. G. O., October 25, 1917.-To the Adjutant General.

1. The question asked is whether the commanding officer at Fort Pike, Arkansas, can be authorized by the War Department to act upon his own initiative, "without waiting to communicate with the War Department in the event that a request should be made by the Governor of Arkansas for aid in suppressing riot or other civil disturbance beyond the control of civil authorities."

2. The use of Federal troops for this purpose is made possible by the Constitution of the United States, article 4, § 4. The Constitution does not specify by what Federal official the emergency is to be determined. By statute Congress has conferred this power and responsibility upon the President. Attention is invited to Army Regulations (1913; corrected) article XLVII The power and responsibility cannot be delegated.

gested.

3. Hence the commanding officer cannot receive the authority sug[Signed] Herbert A. White, Acting Judge Advocate General.

CJL.

5. DELIVERY OF ACCUSED SOLDIER TO CIVIL AUTHORITIES Articles of War LIV, I 1.

2d Ind.

War Department, J. A. G. O., October 30, 1917.-To the Adjutant General.

1. There was transmitted to this office for remark telegram to you from General Plummer, commanding at Camp Dodge, Des Moines, Iowa, as follows:

"Following telegram received: Tama, Iowa, Oct. Twenty-fifth, Major Gen'l Plummer, Camp Dodge, Iowa. I hold felony warrant John W. Weich of Tama County contingent. Will you release him to me Sunday. Answer at my expense. N. S. Peterson, Sheriff Tama County, Toledo, Iowa.' No directions having been received covering policy during war as to surrendering men under Seventy-Fourth Article of War [Comp. St. 1916, § 2308a] request instruction in this case and for future guidance."

2. The views of this office can be best expressed by quoting the following from communication to you under date of June 11, 1917:

"* ** The present is a time of war, and a commanding officer is not required by the article to turn over to the civil authorities one subject to military jurisdiction and charged with a civil offense; nor, unless instructed so as to do by the War Department, or proper superior determining such matters of policy, should he do so, inasmuch as the right of the Government to the military service of one so ac

cused in time of war is paramount to all other rights if the Government sees fit to assert it.

"In my judgment the proper policy should be to decline to turn over one subject to military jurisdiction and charged with a civil offense except where the offense charged is a most serious one, such as common-law felonies, primarily against the civil community, which would serve to disqualify the offender for military service and association with upright and honorable men, and the commanding officer reasonably believes that the charge is not without proper foundation and the accused will be accorded a fair trial without prejudice due to his military status."

3. Accompanying this communication is a form of telegram, which it is suggested you send to General Plummer.

4. It is recommended that instructions be sent to the commanding officers throughout the country advising them of the policy of the Department, and directing that whenever application is made by the civil authorities for the surrender of a member of the military forces that a report should be at once transmitted to the Department so as to enable it to dispose of the matter in accordance with the policy outlined.

AGO 201.

CJL.

[Signed] S. T. Ansell,

Acting Judge Advocate General.

6. TRANSFERS OF ENLISTED MEN FROM ONE BRANCH TO ANOTHER Army I.

2d Ind.

War Department, J. A. G. O., November 1, 1917.-To the

Adjutant General.

1. The opinion of this office is requested on the question of whether there is any legal necessity longer to adhere to the distinction between Enlisted Reserve Corps men, Regular Army, National Guard, National Army, etc., in so far as the individual status is concerned." The question is further asked as to whether or not there is any legal reason why enlisted men of the Regular Army, National Guard, National Army, or other divisions of the Army may not be regarded as interchangeable and why they should not all be carried on the same muster roll.

2. In an opinion of this office, dated September 17, 1917, the following statement was made which bears upon the matter here in question:

"In the light of what I have said, my response to the specific question must be that transfer of enlisted personnel from one force to another, in the sense of absolute incorporation in the force to which transferred, is permissible under the law; and, giving the reasoning the wider application it deserves, it seems to me to require the Department to abolish many of the distinctions which it conceives to exist between and among such forces."

3. No legal reason is known to this office why enlisted men assigned to any organization should not be absolutely incorporated therein and