NOVEMBER 7, 1923, 3 COMP. GEN. 288

NOVEMBER 7, 1923, 3 COMP. GEN. 288

SERVICE OF PROCESS OF NATIONAL GUARD COURTS-MARTIAL - ARIZONA THE STATE OF ARIZONA HAVING PROVIDED BY STATUTE A COMPLETE PROCEDURE FOR THE SERVICE OF ALL PROCESS ISSUED BY COURTS-MARTIAL OF THE NATIONAL GUARD OF THAT STATE, IT IS THE DUTY OF THE STATE OFFICERS OF ARIZONA, AND NOT FEDERAL OFFICERS, TO PERFORM SUCH SERVICES, AND THE FEDERAL APPROPRIATION FOR SALARIES, FEES, AND EXPENSES OF UNITED STATES MARSHALS IS NOT AVAILABLE FOR EXPENSES OF A UNITED STATES MARSHAL INCURRED IN SERVING SUCH PROCESS IN THAT STATE.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, NOVEMBER 7, 1923:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 22, 1923, SUBMITTING FOR DECISION THE QUESTION---

WHETHER THE EXPENSES OF THE U.S. MARSHAL FOR THE DISTRICT OF ARIZONA, IN CONNECTION WITH THE SERVICE OF PROCESS ISSUED BY COURTS MARTIAL OF THE NATIONAL GUARD OF THAT STATE, MAY PROPERLY BE PAID FROM THE APPROPRIATION "SALARIES, FEES, AND EXPENSES OF MARSHALS, U.S. COURTS," OR FROM ANY OTHER APPROPRIATION UNDER THE CONTROL OF THIS DEPARTMENT.

SECTION 3984 OF THE MILITARY CODE OF ARIZONA, TITLE XXXIII, REVISED STATUTES, ARIZONA, 1913, PROVIDES AS FOLLOWS:

THE PRESIDENT OF A COURT-MARTIAL OR DELINQUENCY COURT MAY, IN HIS DISCRETION, APPOINT BY WARRANT UNDER HIS OFFICIAL SIGNATURE, AND AT ANY TIME REMOVE ONE OR MORE MARSHALS. EACH MARSHAL SHALL PERFORM THE USUAL DUTIES OF SUCH MARSHAL, AND SHALL EXECUTE SUCH PROCESS, MANDATE, OR ORDER ISSUED BY SUCH PRESIDENT OR COURT, AND PERFORM ALL ACTS AND DUTIES BY THIS TITLE IMPOSED ON OR AUTHORIZED TO BE PERFORMED BY ANY SHERIFF, MARSHAL, OR CONSTABLE, AND SHALL RECEIVE SUCH COMPENSATION FOR SUCH SERVICE AS THE GENERAL STAFF MAY PROVIDE.

SECTION 3990 PROVIDES:

MILITARY COURTS ARE EMPOWERED TO ISSUE ALL PROCESSES AND MANDATES, INCLUDING WRITS AND WARRANTS NECESSARY AND PROPER TO CARRY INTO FULL EFFECT THE POWERS AND MANDATES VESTED IN SAID COURTS. SUCH PROCESSES MAY BE DIRECTED TO THE MARSHAL OF THE COURT, SHERIFF OF ANY COUNTY, AND THE CONSTABLES AND MARSHALS OF ANY TOWN OR CITY, AND SHALL BE IN SUCH FORM AS MAY, FROM TIME TO TIME, BE PRESCRIBED BY THE GENERAL STAFF IN THE RULES AND REGULATIONS ISSUED BY THEM UNDER THIS TITLE. IT SHALL BE THE DUTY OF ALL OFFICERS TO WHOM SUCH PROCESS OR MANDATE MAY BE SO DIRECTED TO EXECUTE THE SAME AND MAKE RETURN OF THEIR ACTS THEREUNDER ACCORDING TO THE REQUIREMENTS OF THE SAME. THE KEEPERS AND WARDENS OF ALL CITY OR COUNTY JAILS SHALL RECEIVE THE BODIES OF PERSONS COMMITTED BY THE PROCESS OR MANDATE OF A MILITARY COURT AND CONFINE THEM IN THE MANNER PRESCRIBED BY AND ACCORDING TO LAW.

SECTION 108 OF THE ACT APPROVED JUNE 3, 1916, 39 STAT., 209, FOR MAKING FURTHER AND MORE EFFECTIVE PROVISION FOR THE NATIONAL DEFENSE, ETC., PROVIDES AS FOLLOWS:

IN THE NATIONAL GUARD, NOT IN THE SERVICE OF THE UNITED STATES, PRESIDENTS OF COURTS-MARTIAL AND SUMMARY COURT OFFICERS SHALL HAVE POWER TO ISSUE WARRANTS TO ARREST ACCUSED PERSONS AND TO BRING THEM BEFORE THE COURT FOR TRIAL WHENEVER SUCH PERSONS SHALL HAVE DISOBEYED AN ORDER IN WRITING FROM THE CONVENING AUTHORITY TO APPEAR BEFORE SUCH COURT, A COPY OF THE CHARGE OR CHARGES HAVING BEEN DELIVERED TO THE ACCUSED WITH SUCH ORDER, AND TO ISSUE SUBPOENAS AND SUBPOENAS DUCES TECUM AND TO ENFORCE BY ATTACHMENT ATTENDANCE OF WITNESSES AND THE PRODUCTION OF BOOKS AND PAPERS, AND TO SENTENCE FOR A REFUSAL TO BE SWORN OR TO ANSWER AS PROVIDED IN ACTIONS BEFORE CIVIL COURTS.

ALL PROCESSES AND SENTENCES OF SAID COURT SHALL BE EXECUTED BY SUCH CIVIL OFFICERS AS MAY BE PRESCRIBED BY THE LAW OF THE SEVERAL STATES AND TERRITORIES, AND IN ANY STATE WHERE NO PROVISION SHALL HAVE BEEN MADE FOR SUCH ACTION, AND IN THE TERRITORIES AND THE DISTRICT OF COLUMBIA, SUCH PROCESSES AND SENTENCES SHALL BE EXECUTED BY A UNITED STATES MARSHAL OR HIS DULY APPOINTED DEPUTY AND IT SHALL BE THE DUTY OF ANY UNITED STATES MARSHAL TO EXECUTE ALL SUCH PROCESSES AND SENTENCES AND MAKE RETURN THEREOF TO THE OFFICER ISSUING OR IMPOSING THE SAME.

CHAPTER 144, LAWS OF ARIZONA, 1921, REFERRED TO AS REPEALING SECTIONS 3984 AND 3990 OF THE REVISED STATUTES OF ARIZONA, PROVIDES IN PART AS FOLLOWS:

THE ARTICLES OF WAR, RULES AND REGULATIONS OF THE ARMY OF THE UNITED STATES, SO FAR AS SAME MAY BE APPLICABLE, INCLUDING THOSE PROVISIONS OF THE NATIONAL DEFENSE ACT APPROVED JUNE 3, 1916, AS AMENDED BY ACT APPROVED JUNE 4, 1920, SO FAR AS THE REQUIREMENTS OF ANY PROVISION THEREOF APPLY TO NATIONAL GUARDS OF STATES, SHALL APPLY TO THE ORGANIZED NATIONAL GUARD OF ARIZONA, ITS ORGANIZATION AND THE TERMS OF ENLISTMENT, THE QUALIFICATIONS AND EXAMINATIONS OF OFFICERS AND ENLISTED MEN, THE DISCIPLINE, THE TRAINING, AND THE OFFICERING OF THE ARIZONA NATIONAL GUARD, AND ALL PROVISIONS AS TO THE COURTS-MARTIAL AND EFFICIENCY BOARDS, IN ALL RESPECTS AS FULLY AS IF REINCORPORATED IN THE MILITARY CODE OF ARIZONA.

BY THE ACT OF 1913, TITLE XXXIII, REVISED STATUTES OF ARIZONA, A COMPLETE PROCEDURE HAD BEEN PROMULGATED FOR THE SERVICE OF ALL PROCESSES AND SENTENCES ISSUED BY A MILITARY COURT OF THE NATIONAL GUARD IN THE STATE OF ARIZONA. SECTION 108 OF THE ACT OF JUNE 3, 1916, 39 STAT., 209, AS AMENDED BY THE ACT OF JUNE 4, 1920, MAKING FURTHER AND MORE EFFECTIVE PROVISIONS FOR THE NATIONAL DEFENSE PROVIDES FOR THE SERVICE OF ALL PROCESSES AND SENTENCES ISSUED BY PRESIDENTS AND SUMMARY COURT OFFICERS OF THE NATIONAL GUARD BY SUCH CIVIL OFFICERS AS MAY BE PRESCRIBED BY THE LAWS OF THE SEVERAL STATES, AND IN STATES OR TERRITORIES WHERE NO SUCH PROVISION SHALL HAVE BEEN MADE BY UNITED STATES MARSHALS OR THEIR DULY APPOINTED DEPUTIES.

CHAPTER 144, LAWS OF ARIZONA, 1921, IT IS CLAIMED BY THE ADJUTANT GENERAL OF THE STATE, REPEALED IN TOTO THE ACT OF 1913, TITLE XXXIII, REVISED STATUTES OF ARIZONA, ADOPTS THE ARTICLES OF WAR, RULES AND REGULATIONS OF THE ARMY OF THE UNITED STATES IN SO FAR AS APPLICABLE, AND ALSO INCLUDES THOSE PROVISIONS OF THE NATIONAL DEFENSE ACT APPROVED JUNE 3, 1916, AS AMENDED. THE SECTIONS OF THE MILITARY CODE OF ARIZONA WITH REFERENCE TO SERVICE OF PROCESS OF A COURTS-MARTIAL, ARE, IT WOULD SEEM, NOT IN CONFLICT WITH ANY PROVISION OF THE NATIONAL DEFENSE ACT AS AMENDED.

THE STATE OF ARIZONA BY THE ACT OF 1913 HAVING PROVIDED A COMPLETE PROCEDURE FOR THE SERVICE OF ALL PROCESS AND SENTENCES ISSUED OUT OF COURTS-MARTIAL OF THE NATIONAL GUARD, CHAPTER 144, LAWS OF ARIZONA, 1921, REPEALING ONLY ACTS OR PARTS OF ACTS INCONSISTENT WITH THE NATIONAL DEFENSE ACT AND THAT LATTER ACT PROVIDING ONLY FOR SUCH SERVICE WHERE NO PROVISION HAS BEEN MADE BY THE STATES, IT APPEARS TO BE THE DUTY OF THE STATE OFFICERS OF ARIZONA AND NOT FEDERAL OFFICERS TO PERFORM SUCH SERVICES, AND IN THE ABSENCE OF ANY OTHER SHOWING THE APPROPRIATION CITED WOULD NOT BE AVAILABLE FOR THE SERVICES OF THE UNITED STATES MARSHAL IN SUCH MATTERS.