DECEMBER 26, 1923, 3 COMP. GEN. 393
Highlights
IS OPERATIVE WITH RESPECT TO THE ANCIENT CORPS OF ARTILLERY. WAS DELIVERED BY MR. WHOSE BRIEF ON THE QUESTION IS INCLUDED AMONG THE PAPERS. WAS NOT APPLICABLE TO AN ORGANIZATION FEDERALLY RECOGNIZED AS NATIONAL GUARD. THAT SECTION WAS OPERATIVE WITH RESPECT TO THE ANCIENT CORPS OF ARTILLERY. THIS CONSTRUCTION OF THE STATUTE IS CHALLENGED AS DEFEATING ITS INTENT AS DISCLOSED BY ITS LANGUAGE. THAT IT IS BASED ON A MISCONCEPTION OF FACT. IT IS STATED THAT THIS ORGANIZATION WAS INSTRUMENTAL IN SECURING THE ENACTMENT OF THAT PORTION OF SECTION 3 OF THE ACT OF JANUARY 21. THAT IN 1907 THE ATTORNEY GENERAL OF MASSACHUSETTS RENDERED AN OPINION AS TO THE PRIVILEGE THE ORGANIZATION WAS ENTITLED TO RETAIN UNDER THE PROVISION CONTAINED IN 1903 ACT.
DECEMBER 26, 1923, 3 COMP. GEN. 393
NATIONAL GUARD PAY - ANCIENT CORPS OF ARTILLERY, CAVALRY, OR INFANTRY SECTION 63 OF THE ACT OF JUNE 3, 1916, 39 STAT., 198, IS OPERATIVE WITH RESPECT TO THE ANCIENT CORPS OF ARTILLERY, CAVALRY, OR INFANTRY ONLY SO LONG AS THEY EXIST OUTSIDE OF THE ORGANIZED MILITIA; UPON RELINQUISHING THEIR RIGHT TO A SEPARATE EXISTENCE BY COMING INTO THE NATIONAL GUARD THEY CAN CLAIM NO GREATER PRIVILEGE IN RESPECT TO THE PAY OF PERSONNEL FROM FEDERAL FUNDS THAN OTHER LIKE UNITS OF THE NATIONAL GUARD.
COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, DECEMBER 26, 1923:
YOUR LETTER OF DECEMBER 5, 1923, REQUESTING FURTHER CONSIDERATION OF THE RIGHT OR PRIVILEGE OF THE MACHINE GUN BATTALION, TWO HUNDRED AND ELEVENTH ANTIAIRCRAFT REGIMENT, MASSACHUSETTS NATIONAL GUARD, FORMERLY THE FIRST CORPS CADETS OF BOSTON, TO NONCONFORMITY IN ORGANIZATION OF SIMILAR UNITS OF THE NATIONAL GUARD, AND THE OFFICERS THEREOF TO FEDERAL RECOGNITION AND PAY IN NUMBERS AND GRADES NOT AUTHORIZED BY TABLES OF ORGANIZATION, WAS DELIVERED BY MR. DAVID J. MALONEY, WHOSE BRIEF ON THE QUESTION IS INCLUDED AMONG THE PAPERS, AND WHO APPEARED PERSONALLY BEFORE THIS OFFICE AND MADE AN ORAL PRESENTATION IN ELABORATION THEREOF.
DECISIONS OF OCTOBER 17, 1922, 14 MS. COMP. GEN., 942, AND SEPTEMBER 29, 1923, 25 MS. COMP. N., 1047, AFTER QUITE FULL DISCUSSION REACHED AND ADHERED TO THE CONCLUSION THAT SECTION 63 OF THE ACT OF JUNE 3, 1916, 39 STAT., 198, WAS NOT APPLICABLE TO AN ORGANIZATION FEDERALLY RECOGNIZED AS NATIONAL GUARD; THAT SECTION WAS OPERATIVE WITH RESPECT TO THE ANCIENT CORPS OF ARTILLERY, CAVALRY, OR INFANTRY DESCRIBED ONLY SO LONG AS THEY EXISTED OUTSIDE THE MILITIA; AND THAT HAVING RELINQUISHED THEIR RIGHT TO A SEPARATE EXISTENCE BY COMING INTO THE NATIONAL GUARD THEY COULD CLAIM NO GREATER PRIVILEGE IN THE MATTER OF PAY OF PERSONNEL FROM FEDERAL FUNDS THAN OTHER LIKE UNITS OF THE NATIONAL GUARD.
THIS CONSTRUCTION OF THE STATUTE IS CHALLENGED AS DEFEATING ITS INTENT AS DISCLOSED BY ITS LANGUAGE, AND BY THE REPRESENTATIONS MADE TO THE COMMITTEES IN CONGRESS HAVING THE LEGISLATION IN CHARGE; AND, FURTHER, THAT IT IS BASED ON A MISCONCEPTION OF FACT, AS THE FIRST CORPS CADETS ,PERFORMED ALL THE DUTIES OF THE MILITIA AND SINCE 1840 HAS BEEN A PART OF THE MILITIA AND AN ACTIVE PART OF THE NATIONAL GUARD SINCE ITS ESTABLISHMENT.'
IT IS STATED THAT THIS ORGANIZATION WAS INSTRUMENTAL IN SECURING THE ENACTMENT OF THAT PORTION OF SECTION 3 OF THE ACT OF JANUARY 21, 1903, 32 STAT., 775, RELATING TO ANCIENT CORPS OF ARTILLERY, CAVALRY, AND INFANTRY; THAT IN 1907 THE ATTORNEY GENERAL OF MASSACHUSETTS RENDERED AN OPINION AS TO THE PRIVILEGE THE ORGANIZATION WAS ENTITLED TO RETAIN UNDER THE PROVISION CONTAINED IN 1903 ACT; AND THAT THE PROVISOS CONTAINED IN SECTION 63 OF THE ACT OF JUNE 3, 1916, WERE DRAWN BY THE CONGRESSIONAL COMMITTEE TO LIMIT OR REDUCE THESE PRIVILEGES BY REQUIRING CONFORMITY TO ORGANIZATION IN TIME OF WAR, AND IN TIME OF PEACE TO BE ATTACHED FOR TRAINING, ETC., TO AN ORGANIZATION LESS THAN A DIVISION.
THE INTENT OF THE LAWMAKER IS, OF COURSE, THE LAW, AND IT IS ONLY AS THE INTENT IS EXPRESSED OR BY NECESSARY IMPLICATION INCLUDED IN THE LAW THAT THE ANNOUNCED OBJECT OF THE DRAFTSMAN MAY BE GIVEN EFFECT. THE PROVISION OF LAW HERE IN QUESTION HAD ITS PROTOTYPE IN THE ACT OF 1792, AND THE INTENT OF THAT EARLY PROVISION WILL AID IN ASCERTAINING THE LEGAL INTENT OF THE PRESENT PROVISION.
IT IS PROPER TO OBSERVE, BEFORE CONSIDERING THE ACT OF 1792, THAT THE CONSTITUTION, ARTICLE I, SECTION 8, GIVES TO CONGRESS THE POWER--
TO PROVIDE FOR ORGANIZING, ARMING, AND DISCIPLINING THE MILITIA, AND FOR GOVERNING SUCH PART OF THEM AS MAY BE EMPLOYED IN THE SERVICE OF THE UNITED STATES, RESERVING TO THE STATES RESPECTIVELY, THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.
SECTION 10 OF ARTICLE I PROVIDES THAT---
NO STATE SHALL, WITHOUT THE CONSENT OF CONGRESS, * * * KEEP TROOPS, OR SHIPS OF WAR, IN TIME OF PEACE * * *.
THE FIRST MILITIA ACT UNDER THE CONSTITUTION WAS THE ACT OF MAY 8, 1792, 1 STAT., 271, ENTITLED "AN ACT MORE EFFECTUALLY TO PROVIDE FOR THE NATIONAL DEFENCE BY ESTABLISHING AN UNIFORM MILITIA THROUGHOUT THE UNITED STATES.' IT CREATED A MILITIA IN WHICH EVERY ABLE-BODIED MALE CITIZEN BETWEEN THE AGES OF 18 AND 45 (WITH CERTAIN EXEMPTIONS PROVIDED) WAS REQUIRED TO BE ENROLLED, AND PROVIDED FOR ITS ORGANIZATION INTO COMPANIES AND HIGHER UNITS. THIS ACT WAS INCLUSIVE OF THE ENTIRE MALE CITIZENSHIP, BUT IT WAS PROVIDED IN THE ACT:
AND WHEREAS SUNDRY CORPS OF ARTILLERY, CAVALRY, AND INFANTRY NOW EXIST IN SEVERAL OF THE SAID STATES, WHICH BY THE LAWS, CUSTOMS, OR USAGES THEREOF HAVE NOT BEEN INCORPORATED WITH, OR SUBJECT TO THE GENERAL REGULATIONS OF THE MILITIA:
SEC. 11. BE IT FURTHER ENACTED, THAT SUCH CORPS RETAIN THEIR ACCUSTOMED PRIVILEGES, SUBJECT, NEVERTHELESS, TO ALL OTHER DUTIES REQUIRED BY THIS ACT, IN LIKE MANNER WITH THE OTHER MILITIA.
IT REQUIRES NO ARGUMENT TO DEMONSTRATE THAT THE CORPS HERE PROVIDED FOR WERE NOT A PART OF THE MILITIA ESTABLISHED BY THAT ACT; THEY HAD NOT BEEN INCORPORATED WITH THE MILITIA THERETOFORE ESTABLISHED BY THE STATES OR THE INDEPENDENT SOVEREIGNTIES OR COLONIES PRECEDING THE STATES, NOR WERE THEY SUBJECT TO THE GENERAL REGULATIONS OF THE MILITIA THERETOFORE ENACTED BY THE STATES; AND THEY WERE AUTHORIZED BY SECTION 11 TO RETAIN THEIR ACCUSTOMED PRIVILEGES OF EXISTENCE AND ORGANIZATION SEPARATE AND DISTINCT FROM THE MILITIA CREATED BY FEDERAL LEGISLATION; THEY WERE NOT, HOWEVER, EXEMPT FROM THE MILITIA DUTIES OF CITIZENS.
SECTIONS 1625 TO 1660, REVISED STATUTES, ARE SUBSTANTIALLY A REENACTMENT OF THE ACT OF 1792 AND SECTION 1641 PROVIDES:
ALL CORPS OF ARTILLERY, CAVALRY, AND INFANTRY, NOW EXISTING IN ANY STATE, WHICH, BY ANY LAW, CUSTOM, OR USAGE, THEREOF, HAVE NOT BEEN INCORPORATED WITH THE MILITIA, OR ARE NOT GOVERNED BY THE GENERAL REGULATIONS THEREOF, SHALL BE ALLOWED TO RETAIN THEIR ACCUSTOMED PRIVILEGES, SUBJECT, NEVERTHELESS, TO ALL OTHER DUTIES REQUIRED BY LAW IN LIKE MANNER AS THE OTHER MILITIA.
THESE ANCIENT CORPS, WHICH HAD AN EXISTENCE SEPARATE AND DISTINCT FROM THE MILITIA FROM MAY 8, 1792, TO JUNE 22, 1874, WERE HERE AGAIN AUTHORIZED TO BE CONTINUED IN EXISTENCE UNINCORPORATED WITH THE MILITIA ESTABLISHED AND DEFINED BY FEDERAL LAW. THEY WERE NOT MILITIA, THAT TERM IS INCLUSIVE ONLY OF THE STATE FORCES ORGANIZED PURSUANT TO FEDERAL LAW, AND THE LIABILITY TO THE ORDINARY MILITIA DUTY OF CITIZENS WAS AGAIN PROVIDED.
THE EXPERIENCE OF THE SPANISH WAR HAVING DEMONSTRATED THE INADEQUACY OF THE MILITIA AS THERETOFORE CONSTITUTED AS A NATIONAL FORCE, LEGISLATION HAVING FOR ITS OBJECT A MORE EFFECTIVE ORGANIZATION WAS ENACTED JANUARY 21, 1903, 32 STAT., 775, AND BY SECTION 1 IT WAS PROVIDED:
THAT THE MILITIA SHALL CONSIST OF EVERY ABLE-BODIED MALE CITIZEN OF THE RESPECTIVE STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, AND EVERY ABLE-BODIED MALE OF FOREIGN BIRTH WHO HAS DECLARED HIS INTENTION TO BECOME A CITIZEN, WHO IS MORE THAN EIGHTEEN AND LESS THAN FORTY-FIVE YEARS OF AGE, AND SHALL BE DIVIDED INTO TWO CLASSES--- THE ORGANIZED MILITIA TO BE KNOWN AS THE NATIONAL GUARD OF THE STATE, TERRITORY, OR DISTRICT OF COLUMBIA, OR BY SUCH OTHER DESIGNATIONS AS MAY BE GIVEN THEM BY THE LAWS OF THE RESPECTIVE STATES OR TERRITORIES, AND THE REMAINDER TO BE KNOWN AS THE RESERVE MILITIA.
BY SECTION 3 OF THE ORGANIZED MILITIA WAS DEFINED AS "THE REGULARLY ENLISTED, ORGANIZED, AND UNIFORMED ACTIVE MILITIA * * * WHO HAVE * * * PARTICIPATED OR SHALL HEREAFTER PARTICIPATE IN THE APPORTIONMENT OF THE ANNUAL APPROPRIATION PROVIDED BY SECTION SIXTEEN HUNDRED AND SIXTY-ONE OF THE REVISED STATUTES.' THE ORGANIZATION, ARMAMENT, AND THE DISCIPLINE OF THE ORGANIZED MILITIA WAS REQUIRED, WITHIN FIVE YEARS, TO BE THE SAME AS PRESCRIBED "FOR THE REGULAR AND VOLUNTEER ARMIES OF THE UNITED STATES.' THIS SECTION CONTAINED THE PROVISO:
* * * THAT ANY CORPS OF ARTILLERY, CAVALRY AND INFANTRY EXISTING IN ANY OF THE STATES AT THE PASSAGE OF THE ACT OF MAY EIGHTH, SEVENTEEN HUNDRED AND NINETY-TWO, WHICH, BY THE LAWS, CUSTOMS OR USAGES OF THE SAID STATES HAVE BEEN IN CONTINUOUS EXISTENCE SINCE THE PASSAGE OF SAID ACT UNDER ITS PROVISIONS AND UNDER THE PROVISIONS OF SECTION TWO HUNDRED AND THIRTY-TWO AND SECTIONS SIX HUNDRED AND TWENTY-FIVE TO SIXTEEN HUNDRED AND SIXTY, BOTH INCLUSIVE OF TITLE SIXTEEN OF THE REVISED STATUTES OF THE UNITED STATES RELATING TO THE MILITIA, SHALL BE ALLOWED TO RETAIN THEIR ACCUSTOMED PRIVILEGES, SUBJECT, NEVERTHELESS, TO ALL OTHER DUTIES REQUIRED BY LAW IN LIKE MANNER AS THE OTHER MILITIA.
HERE THE MILITIA WAS DIVIDED INTO TWO COMPONENTS, THE ORGANIZED MILITIA AND THE RESERVE ILITIA; THESE TWO CLASSES COMPRISED THE ENTIRE MALE CITIZENSHIP OF THE NATION BETWEEN THE AGES OF 18 AND 45, SUBJECT TO THE EXEMPTION NAMED IN SECTION 2. THE ANCIENT CORPS AUTHORIZED TO CONTINUE IN EXISTENCE UNDER THEIR OLD ORGANIZATION WERE AGAIN SUBJECT "TO ALL OTHER DUTIES REQUIRED BY LAW IN LIKE MANNER AS THE OTHER MILITIA; " NOT THE ORGANIZED MILITIA, BUT THE MILITIA OF WHICH EVERY ABLE-BODIED MALE CITIZEN BETWEEN THE AGES OF 18 AND 45 WAS A MEMBER; THE MEMBERS OF THESE ANCIENT CORPS WERE GIVEN NO EXEMPTION FROM MILITIA DUTY BECAUSE THEY WERE INCORPORATED WITH THE ORGANIZED MILITIA.
THE ACT OF JUNE 3, 1916, 39 STAT., 197, BY SECTION 57 AGAIN CONSTITUTES ALL ABLE-BODIED MALES BETWEEN THE AGES OF 18 AND 45, WITH THE EXEMPTIONS NAMED IN SECTION 59, THE MILITIA OF THE UNITED STATES, AND DIVIDES IT INTO THREE CLASSES, THE NATIONAL GUARD, THE NAVAL MILITIA, AND THE UNORGANIZED MILITIA; AND BY SECTION 58 IT WAS PROVIDED THAT THE NATIONAL GUARD "SHALL CONSIST OF THE REGULARLY ENLISTED MILITIA BETWEEN THE AGES OF 18 AND 45, ORGANIZED, ARMED, AND EQUIPPED" AS THEREIN AFTER PROVIDED,"AND OF COMMISSIONED OFFICERS BETWEEN THE AGES OF 21 AND 64 YEARS.' BY SECTION 63, 39 STAT., 198, IT IS PROVIDED:
ANY CORPS OF ARTILLERY, CAVALRY, OR INFANTRY EXISTING IN ANY OF THE STATES ON THE PASSAGE OF THE ACT OF MAY EIGHTH, SEVENTEEN HUNDRED AND NINETY-TWO, WHICH BY THE LAWS, CUSTOMS, OR USAGES OF SAID STATES HAS BEEN IN CONTINUOUS EXISTENCE SINCE THE PASSAGE OF SAID ACT, UNDER ITS PROVISIONS OF SECTION TWO HUNDRED AND THIRTY-TWO AND SECTIONS SIXTEEN HUNDRED AND TWENTY-FIVE TO SIXTEEN HUNDRED AND SIXTY, BOTH INCLUSIVE, OF TITLE SIXTEEN OF THE REVISED STATUTES OF EIGHTEEN HUNDRED AND SEVENTY- THREE, AND THE ACT OF JANUARY TWENTY-FIRST, NINETEEN HUNDRED AND THREE, RELATING TO THE MILITIA, SHALL BE ALLOWED TO RETAIN ITS ANCIENT PRIVILEGES, SUBJECT, NEVERTHELESS, TO ALL DUTIES REQUIRED BY LAW OR MILITIA: PROVIDED, THAT SAID ORGANIZATIONS MAY BE A PART OF THE NATIONAL GUARD AND ENTITLED TO ALL THE PRIVILEGES OF THIS ACT, AND SHALL CONFORM IN ALL RESPECTS TO THE ORGANIZATION, DISCIPLINE, AND TRAINING OF THE NATIONAL GUARD IN TIME OF WAR: PROVIDED FURTHER, THAT FOR PURPOSES OF TRAINING AND WHEN ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES THEY MAY BE ASSIGNED TO HIGHER UNITS, AS THE PRESIDENT MAY DIRECT, AND SHALL BE SUBJECT TO THE ORDERS OF OFFICERS UNDER WHOM THEY SHALL BE SERVING.
THE ANCIENT CORPS ARE SUBJECT "TO ALL DUTIES REQUIRED BY LAW OF MILITIA," NOT OF THE NATIONAL GUARD; THAT IS, THE MEMBERS ARE NOT EXEMPTED FROM MILITARY DUTIES OF CITIZENS BECAUSE OF THEIR MEMBERSHIP IN ORGANIZATIONS CONTINUED IN EXISTENCE BUT UNINCORPORATED WITH THE MILITIA AS THEREIN DEFINED.
ALTHOUGH IN ORIGIN THE PROVISION WAS CLEARLY DESIGNED TO PROVIDE FOR THE EXISTENCE OF THESE CORPS UNINCORPORATED WITH--- THAT IS, NOT A PART OF--- THE MILITIA GIVEN A STATUTORY ORGANIZATION, AND TO CONFER THE RIGHT OF A CONTINUED EXISTENCE OF MILITARY ORGANIZATIONS, IT IS NOW CONTENDED THAT BY THE SLIGHT CHANGES IN PHRASEOLOGY INTRODUCED INTO THE 1903 LAW AND EXTENDED IN THE 1916 LAW THE CHARACTER OF THE PROVISION HAS BEEN FUNDAMENTALLY CHANGED; THAT IT IS NO LONGER DESIGNED TO PROVIDE FOR THE EXISTENCE OF THESE ORGANIZATIONS APART FROM THE MILITIA GIVEN A STATUTORY ORGANIZATION, BUT IS DESIGNED TO CONFER SPECIAL PRIVILEGES ON THE PERSONNEL OF THESE ORGANIZATIONS AS A PART OF THE MOST EFFECTIVE BRANCH OF THE MILITIA--- THE NATIONAL GUARD. SUCH FUNDAMENTAL CHANGE WOULD THUS BE ACCOMPLISHED BY INDIRECTION AND BY SLIGHT CHANGES IN PHRASEOLOGY WHICH SEEM ON THE SURFACE ONLY TO REENACT THE PROVISION FOR SEPARATE EXISTENCE GIVEN BY THE 1792 LAW.
THIS OFFICE CAN NOT ACCEPT SUCH A CONSTRUCTION OF THE LAW. IF CONGRESS HAD INTENDED THAT SUCH AN ORGANIZATION AS A PART OF THE NATIONAL GUARD SHOULD HAVE TWO OR THREE FIELD OFFICERS WHERE OTHER SIMILAR NATIONAL GUARD ORGANIZATIONS MAY HAVE BUT ONE, THAT THE RANKING OFFICER SHOULD HAVE A GRADE HIGHER THAN THE COMMANDING OFFICER OF ANY OTHER SIMILAR NATIONAL GUARD ORGANIZATION, AND THAT THESE ADDITIONAL AND HIGHER RANKING OFFICERS SHOULD HAVE THE FEDERAL PAY OF THEIR GRADES, IT WOULD NOT HAVE SOUGHT TO BESTOW THIS PREFERMENT BY INDIRECTION. THE PROVISOS UPON WHICH GREAT RELIANCE IS PLACED WERE CONSIDERED IN DECISION OF SEPTEMBER 29, 1923. WHATEVER THEIR EFFECT MAY BE, IT IS NOT TO FUNDAMENTALLY CHANGE THE RIGHT ACCORDED FROM EXCLUSION FROM THE MILITIA WITH PRIVILEGES GRANTED BY STATE LAW, TO INCLUSION WITH THE NATIONAL GUARD CLASS OF THE MILITIA AND SPECIAL PRIVILEGES UNDER FEDERAL LAW. THE CONCLUSION THAT THE PERSONNEL OF THE MACHINE-GUN BATTALION, TWO HUNDRED AND ELEVENTH ANTIAIRCRAFT REGIMENT, MASSACHUSETTS NATIONAL GUARD, IS ENTITLED TO BE PAID ONLY ON THE BASIS OF, AND IN ACCORDANCE WITH, THE ORGANIZATION PRESCRIBED IN TABLES OF ORGANIZATION, NOTWITHSTANDING IT WAS FORMERLY THE FIRST CORPS CADETS OF BOSTON, IS ADHERED TO. THE PAPERS RECEIVED WITH YOUR LETTER ARE RETURNED HEREWITH.