B-65761, MAY 14, 1947, 26 COMP. GEN. 868

B-65761, MAY 14, 1947, 26 COMP. GEN. 868

APPOINTMENTS - REFEREE IN BANKRUPTCY - OFFICER OF IOWA NATIONAL GUARD A PERSON WHO WAS APPOINTED BY THE GOVERNOR OF IOWA AS AN OFFICER OF THE IOWA NATIONAL GUARD AND WHO PERFORMED DUTIES AS A MEMBER THEREOF UNDER THE LAWS OF THE STATES OF IOWA, ALTHOUGH ENTITLED TO PAY AND ALLOWANCES FROM THE UNITED STATES, IS TO BE REGARDED AS HOLDING AN OFFICE OF PROFIT OR EMOLUMENT UNDER THE LAWS OF A STATE WITHIN THE MEANING OF SECTION 35 OF THE NATIONAL BANKRUPTCY ACT, AS AMENDED, SO AS TO BE INELIGIBLE THEREUNDER FOR APPOINTMENT TO THE OFFICE OF REFEREE IN BANKRUPTCY.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, MAY 14, 1947:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF APRIL 17, 1947, AS FOLLOWS:

THIS OFFICE HAS RECENTLY RECEIVED AN INQUIRY FROM THE HONORABLE CHARLES A. DEWEY, UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF IOWA, IN REFERENCE TO THE ELIGIBILITY OF MR. RAY C. FOUNTAIN OF DES MOINES, IOWA, FOR APPOINTMENT AS REFEREE IN BANKRUPTCY UNDER THE NATIONAL BANKRUPTCY ACT AS AMENDED BY THE ACT OF JUNE 28, 1946, 60 STAT. 32 ( U.S.C.A. 63). THIS AMENDMENT WHEN IT BECOMES EFFECTIVE, WILL PLACE REFEREES ON A SALARY INSTEAD OF A FEE BASIS OF COMPENSATION. MR. FOUNTAIN HOLDS THE RANK OF MAJOR GENERAL IN THE NATIONAL GUARD AND IS IN AN INACTIVE DUTY STATUS.

THE ACT OF JUNE 28, 1946, CITED ABOVE, SETTING FORTH THE QUALIFICATIONS OF REFEREES, PROVIDES IN PART AS FOLLOWS:

"SEC. 35. QUALIFICATIONS OF REFEREES.--- INDIVIDUALS SHALL NOT BE ELIGIBLE TO APPOINTMENT AS REFEREES UNLESS THEY ARE * * * (2) NOT HOLDING ANY OFFICE OF PROFIT OR EMOLUMENT UNDER THE LAWS OF THE UNITED STATES OR OF ANY STATE OR SUBDIVISION THEREOF OTHER THAN CONCILIATION COMMISSIONERS OR SUPERVISING CONCILIATION COMMISSIONERS BUT NOT BOTH; * * *"

THE NATIONAL GUARD ACT AS AMENDED, 48 STAT. 155 ( 32 U.S.C.A. 20) PROVIDES AS FOLLOWS:

"SEC. 20. OFFICERS IN NATIONAL GUARD OF UNITED STATES AS GOVERNMENT OFFICERS OR EMPLOYEES.

"OFFICERS OF THE NATIONAL GUARD OF THE UNITED STATES, WHILE NOT ON ACTIVE DUTY, SHALL NOT, BY REASON SOLELY OF THEIR APPOINTMENTS, OATHS, COMMISSIONS, OR STATUS AS SUCH, OR ANY DUTIES OR FUNCTIONS PERFORMED OR PAY OR ALLOWANCES RECEIVED AS SUCH, BE HELD OR DEEMED TO BE OFFICERS OR EMPLOYEES OF THE UNITED STATES, OR PERSONS HOLDING ANY OFFICE OF TRUST OR PROFIT OR DISCHARGING ANY OFFICIAL FUNCTION UNDER OR IN CONNECTION WITH ANY DEPARTMENT OF THE GOVERNMENT OF THE UNITED STATES.'

IN VIEW OF THE ABOVE-QUOTED PROVISIONS OF THE NATIONAL GUARD ACT, IT WOULD APPEAR TO BE THE INTENT OF THE CONGRESS THAT OFFICERS OF THE NATIONAL GUARD WHILE NOT ON ACTIVE DUTY SHALL NOT BE DISQUALIFIED FROM HOLDING POSITIONS OF APPOINTMENTS, OATHS OR COMMISSIONS AS SUCH OFFICERS.

ASSUMING THAT AN OFFICER OF THE NATIONAL GUARD ON INACTIVE DUTY IS NOT BARRED FROM HOLDING A POSITION IN THE FEDERAL GOVERNMENT, THERE STILL REMAINS A QUESTION AS TO WHETHER SUCH AN OFFICER WHILE ON ACTIVE DUTY SHOULD BE REGARDED AS AN OFFICER OF THE STATE AND AS SUCH DISQUALIFIED UNDER THE RECENT AMENDMENT TO THE NATIONAL BANKRUPTCY ACT. IN THIS CONNECTION, THE ADMINISTRATIVE OFFICE HAS BEEN INFORMED THAT FUNDS FOR THE SALARIES AND ALLOWANCES OF NATIONAL GUARD OFFICERS ON INACTIVE DUTY ARE CONTAINED IN THE ANNUAL BUDGET OF THE WAR DEPARTMENT. WE UNDERSTAND THAT THE CONTRIBUTIONS MADE BY THE SEVERAL STATES TOWARD THE MAINTENANCE OF THE NATIONAL GUARD ARE CONFINED SOLELY TO EQUIPMENT AND FACILITIES FOR THE USE OF THE GUARD, AND TO PAY OF OFFICERS AND ENLISTED PERSONNEL WHILE ON ACTIVE DUTY.

JUDGE DEWEY HAS GIVEN THIS QUESTION CAREFUL CONSIDERATION AND THROUGH MR. FOUNTAIN HAS SECURED AN OPINION FROM THE ATTORNEY GENERAL OF THE STATE OF IOWA IN WHICH, AFTER CONSIDERING THE APPLICABLE STATUTES, IT IS HELD THAT OFFICERS OF THE NATIONAL GUARD ON INACTIVE DUTY ARE NOT OFFICERS OF THE STATE OF IOWA. A COPY OF THE LETTER OF THE ATTORNEY GENERAL, WHICH IS ADDRESSED TO BRIG. GEN. CHARLES H. GRAHL, THE ADJUTANT GENERAL OF THE NATIONAL GUARD AT DES MOINES, IOWA, IS ATTACHED FOR YOUR INFORMATION AND CONSIDERATION.

IT WILL BE APPRECIATED IF YOU WILL GIVE US YOUR OPINION ON THE ELIGIBILITY OF MR. FOUNTAIN FOR APPOINTMENT AS REFEREE IN BANKRUPTCY UNDER THE ACT OF JUNE 28, 1946, AS SOON AS YOU CAN CONVENIENTLY DO SO.

THE REFERRED-TO OPINION OF THE ATTORNEY GENERAL OF THE STATE OF IOWA IS, IN MATERIAL PART, AS FOLLOWS:

WHETHER AN OFFICER OF THE NATIONAL GUARD OF THE STATE OF IOWA IS HOLDING AN OFFICE OF PROFIT OR EMOLUMENT UNDER THE LAWS OF THE STATE OF IOWA, THAT WOULD RENDER HIM INELIGIBLE TO APPOINTMENT AS REFEREE, IS DETERMINED BY OUR PERTINENT IOWA STATUTES. THAT SUCH AN OFFICER IN THE NATIONAL GUARD OF THE STATE IS NOT HOLDING AN OFFICE OF PROFIT OR EMOLUMENT IS DETERMINED BY SECTION 29.21, CODE OF 1946, WHERE WITH REFERENCE TO THE COMPENSATION OF OFFICERS AND ENLISTED MEN OF THE NATIONAL GUARD THE STATUTE PROVIDES--- "OFFICERS AND ENLISTED MEN, WHILE IN ACTIVE SERVICE OF THE STATE SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS PAID FOR THE SAME RANK OR GRADE FOR SERVICE IN THE ARMY OF THE UNITED STATES.' APPLICATION OF THE RULE OF EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS TO THE FOREGOING STATUTE, RESULTS IN A PLAIN INFERENCE THAT THE LEGISLATURE INTENDED TO OMIT ANY PROVISION FOR PAY AND ALLOWANCES TO OFFICERS WHILE ON INACTIVE SERVICE. THAT GENERAL FOUNTAIN IS NOT IN "ACTIVE SERVICE" IS CONCLUDED BY THE DEFINITION THEREOF CONTAINED IN SECTION 29.2, CODE OF 1946 IN WORDS AS FOLLOWS.

"THE TERM "ACTIVE SERVICE" SHALL BE UNDERSTOOD AND CONSTRUED TO BE SERVICE ON BEHALF OF THE STATE, IN CASE OF PUBLIC DISASTER, RIOT, TUMULT, BREACH OF THE PEACE, RESISTANCE OF PROCESS, OR WHENEVER THE SAME IS THREATENED, WHENEVER CALLED UPON IN AID OF CIVIL AUTHORITIES, OR UNDER MARTIAL LAW, OR AT ENCAMPMENTS WHETHER ORDERED BY STATE OR FEDERAL AUTHORITY, OR UPON ANY OTHER DUTY REQUIRING THE ENTIRE TIME OF THE ORGANIZATION OR PERSON, EXCEPT WHEN CALLED OR DRAFTED INTO THE FEDERAL SERVICE BY THE PRESIDENT OF THE UNITED STATES.'

THEREFORE, BASED UPON THE FOREGOING, I AM OF THE OPINION THAT GENERAL FOUNTAIN AS COMMANDING GENERAL OF THE 34TH INFANTRY DIVISION, IOWA NATIONAL GUARD, ON INACTIVE SERVICE, IS NOT HOLDING AN OFFICE OF PROFIT OR EMOLUMENT UNDER THE LAWS OF IOWA.

IT IS UNDERSTOOD THAT MR. FOUNTAIN IS THE COMMANDING GENERAL OF THE THIRTY-FOURTH INFANTRY DIVISION, IOWA NATIONAL GUARD, AND THAT HE PERFORMS SUCH DUTIES AS THAT OFFICE REQUIRES, FOR WHICH HE IS ENTITLED TO RECEIVE CERTAIN COMPENSATION. SEE SECTION 14, PAY READJUSTMENT ACT OF 1942, 56 STAT. 367. HENCE, IT IS ASSUMED THAT YOUR REFERENCE TO HIS BEING IN AN INACTIVE DUTY STATUS RELATES TO HIS DIVORCEMENT FROM ANY CONNECTION WITH THE MILITARY SERVICE OF THE UNITED STATES.

I AGREE THAT BY VIRTUE OF THE TERMS OF SECTION 20, TITLE 32, U.S. CODE, QUOTED IN YOUR LETTER, AN OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES, WHILE NOT ON ACTIVE DUTY, IS NOT HOLDING AN OFFICE OF PROFIT OR EMOLUMENT UNDER THE LAWS OF THE UNITED STATES WITHIN THE MEANING OF SECTION 35 OF THE NATIONAL BANKRUPTCY ACT, AS AMENDED BY THE ACT OF JUNE 28, 1946, 60 STAT. 324, AND THAT THE SOLE QUESTION FOR DECISION HERE IS WHETHER MR. FOUNTAIN, AS AN OFFICER IN THE IOWA NATIONAL GUARD, HOLDS AN OFFICE OF PROFIT OR EMOLUMENT UNDER THE LAWS OF IOWA. WHILE I DO NOT FIND THAT THE PRECISE QUESTION HERETOFORE HAS BEEN CONSIDERED OR PASSED UPON, YET, CONSIDERATION OF RELEVANT DECISIONS OF THE COURTS, THE LAWS OF THE STATE OF IOWA, THE RELATIONSHIP OF THE NATIONAL GUARD TO THE STATE GOVERNMENT, AND OTHER MATTERS HEREINAFTER REFERRED TO WOULD SEEM TO REQUIRE AN AFFIRMATIVE ANSWER THERETO.

OF PARTICULAR RELEVANCE TO THE PRESENT MATTERS THE DECISION IN EX PARTE DAILEY, 246 S.W. 91, 26 A.L.R. 138, WHEREIN IT WAS HELD THAT A DISTRICT JUDGE AND CAPTAIN IN THE NATIONAL GUARD ARE NOT WITHIN A CONSTITUTIONAL PROVISION THAT NO PERSON SHALL HOLD AT THE SAME TIME MORE THAN ONE "CIVIL OFFICE OF EMOLUMENT," SO AS TO PREVENT THEIR BEING HELD BY THE SAME PERSON AT THE SAME TIME, IT BEING STATED BY THE COURT THAT:

* * * WHERE THE TERM "CIVIL OFFICER" IS EMPLOYED IT IS SHOWN IT IS MEANT TO EXCLUDE AN OFFICER OF THE MILITIA. WE ARE OF OPINION THAT A READING OF THE ENTIRE TITLE AND THE VARIOUS CHAPTERS OF THE REVISED CIVIL STATUTES RELATIVE TO THE NATIONAL GUARD MAKES IT CLEAR THAT AN OFFICER OF THAT BODY IS A "MILITARY" AND NOT A "CIVIL OFFICER" * * *.

THUS, WHILE IT WAS HELD THAT A NATIONAL GUARD OFFICER IS A "MILITARY," AND NOT A "CIVIL," OFFICER, THE DECISION APPEARS TO ESTABLISH THAT HE HOLDS AN OFFICE OF EMOLUMENT UNDER THE STATE, AND THERE IS REASON TO BELIEVE THAT BUT FOR THE RESTRICTION OF THE INHIBITION AGAINST DUAL OFFICE HOLDING TO "CIVIL" OFFICERS, HE WOULD HAVE BEEN HELD TO FALL WITHIN ITS TERMS.

IN 36 AM. JUR., SECTION 47, IT IS STATED THAT:

IT IS THE GENERALLY ACCEPTED RULE THAT THE ORGANIZED MILITIA OF THE STATES IS A STATE INSTITUTION--- A GOVERNMENTAL AGENCY. IT IS SO RECOGNIZED BY THE VARIOUS CONSTITUTIONS. THE CHIEF EXECUTIVE OF THE STATE IS COMMANDER IN CHIEF OF THE STATE MILITIA. IT IS A PART OF THE EXECUTIVE BRANCH OF THE STATE GOVERNMENT TO BE USED AS A LAST RESORT TO COMPEL OBEDIENCE TO THE LAWS.

IN UNITED STATES V. DERN, 74 F.2D 485, IT WAS HELD THAT:

* * * EXCEPT WHEN EMPLOYED IN THE SERVICE OF THE UNITED STATES, OFFICERS OF THE NATIONAL GUARD CONTINUE TO BE OFFICERS OF THE STATE AND NOT OFFICERS OF THE UNITED STATES * * *. ( ITALICS SUPPLIED.)

AND, IN MOUNTCASTLE V. STATE, 145 P.2D 392, IT WAS HELD THAT MEMBERS OF THE NATIONAL GUARD ARE OFFICERS OR AGENTS OF THE STATE FOR WHOSE WRONGFUL ACTION OR MISCONDUCT THE STATE IS NOT LIABLE UNDER ITS CONSTITUTION. THE SAME EFFECT, SEE DECICCO V. STATE, 273 N.Y.S. 937. ALSO, IN THE CASE OF NEBRASKA NATIONAL GUARD V. MORGAN, 199 N.W. 577, IT WAS HELD THAT THE NATIONAL GUARD IS A GOVERNMENTAL AGENCY OF THE STATE WITHIN THE MEANING OF AN EMPLOYERS' LIABILITY LAW.

THAT IOWA RETAINS THE RIGHT, CONCURRENT WITH THAT OF THE UNITED STATES GOVERNMENT, TO ORGANIZE AND TRAIN ITS MILITIA CLEARLY IS RECOGNIZED IN SECTION 8 OF ARTICLE I OF THE CONSTITUTION OF THE UNITED STATES AND ARTICLE VI OF THE CONSTITUTION OF IOWA. FOR A DISCUSSION OF THIS RIGHT, SEE HOUSTON V. MOORE, 5 WHEAT. 1, 16. PURSUANT TO SUCH CONCURRENT AUTHORITY, THE STATE HAS PROVIDED BY LAW FOR THE ORGANIZATION, EQUIPMENT, AND FUNCTIONING OF THE NATIONAL GUARD OF IOWA. SECTIONS 29.1, ET SEQ., CODE OF IOWA, 1946. OFFICERS OF THE NATIONAL GUARD ARE APPOINTED BY THE GOVERNOR (SECTION 29.11), AND THE GOVERNOR IS THE COMMANDER IN CHIEF OF THE MILITARY FORCES WITH THE POWER TO EMPLOY THE SAME FOR THE DEFENSE OR THE RELIEF OF THE STATE, THE ENFORCEMENT OF ITS LAWS, AND THE PROTECTION OF LIFE AND PROPERTY THEREIN (SECTION 29.26); AND MAY ORDER ITS MILITARY FORCES INTO THE SERVICE OF THE STATE IN CASES OF INSURRECTION, INVASION OR BREACHES OF PEACE (SECTION 29.28).

I THINK THAT THE FOREGOING MATTERS CLEARLY ESTABLISH THAT THE IOWA NATIONAL GUARD IS AN ACTIVITY OR AGENCY OF THE STATE AND, SUCH BEING THE CASE, THAT AN OFFICER THEREIN IS HOLDING AN OFFICE UNDER THE STATE GOVERNMENT. IN THAT CONNECTION, IT IS IMPORTANT TO OBSERVE THAT IN MANY JURISDICTIONS WHERE THE HOLDING OF MORE THAN ONE OFFICE UNDER THE STATE GOVERNMENT IS PROHIBITED, SPECIFIC EXEMPTION IS MADE BY LAW IN THE CASE OF MILITIAMEN. SEE, INTER ALIA, CONSTITUTION OF NORTH CAROLINA, ARTICLE XIV, SECTION 7; CONSTITUTION OF FLORIDA, ARTICLE XVI, SECTION 15; CONSTITUTION OF TEXAS, ARTICLE XVI, SECTION 40; CONSTITUTION OF KENTUCKY, SECTION 165; CONSTITUTION OF ILLINOIS, ARTICLE IV, SECTION 3; CODE OF ALABAMA, 1940, TITLE 35, SEC. 37. AND, IN THE CONSTITUTION OF IOWA (ARTICLE III, SECTION 22), IT IS PROVIDED THAT:

NO PERSON HOLDING ANY LUCRATIVE OFFICE UNDER * * * THIS STATE * * * SHALL BE ELIGIBLE TO HOLD A SEAT IN THE GENERAL ASSEMBLY; BUT OFFICES IN THE MILITIA, TO WHICH THERE IS ATTACHED NO ANNUAL SALARY, * * * SHALL NOT BE DEEMED LUCRATIVE.

ALSO, BY EXECUTIVE ORDER NO. 6259, AUGUST 27, 1933, OFFICERS OF THE STATE MILITIA WERE EXEMPTED FROM APPLICATION OF EXECUTIVE ORDER NO. 9 OF JANUARY 17, 1873, PROHIBITING PERSONS HOLDING FEDERAL CIVIL OFFICE FROM ACCEPTING OR HOLDING ANY OFFICE UNDER A STATE GOVERNMENT. (THE TERM "MILITIA" APPEARING IN STATE CONSTITUTIONS, ETC., HAS BEEN HELD TO REFER TO THE NATIONAL GUARD. IN RE ADVISORY OPINION TO THE GOVERNOR, 8 SO. 2D 26.)

I REFER TO THE FOREGOING EXEMPTIONS OF MEMBERS OF THE NATIONAL GUARD FROM DUAL OFFICE HOLDING STATUTES AS STRONGLY INDICATIVE OF THE FACT THAT SUCH OFFICERS GENERALLY ARE RECOGNIZED AS HOLDING AN OFFICE UNDER THE STATE GOVERNMENT; OTHERWISE THERE WOULD BE NO NECESSITY FOR MAKING EXCEPTIONS IN THEIR CASES.

SO FAR AS CONCERNS THE QUESTION WHETHER AN OFFICERSHIP IN THE NATIONAL GUARD IS AN OFFICE OF ,PROFIT OR EMOLUMENT," THERE CAN BE NO DOUBT THAT SUCH TERMS REFER TO AN OFFICE TO WHICH SOME KIND OF COMPENSATION IS ATTACHED. CHAMBERS V. STATE, 26 N.E. 893; STATE V. KIRK, 44 IND. 401; STATE V. CLARKE, 31 P. 545. I AM NOT INFORMED OF THE PRECISE AMOUNT OF COMPENSATION RECEIVED BY MR. FOUNTAIN AS AN OFFICER IN THE IOWA NATIONAL GUARD; BUT WHETHER OR NOT IT IS NOMINAL IS UNIMPORTANT SINCE THE DECISIONS ESTABLISH THAT THE AMOUNT OF COMPENSATION IS NOT MATERIAL. 42 AM. JUR., SECTION 64; BAKER V. BOARD OF CROOK COUNTY COMMISSIONERS, 52 P. 797.

THE ATTORNEY GENERAL OF THE STATE OF IOWA, IN HIS OPINION ABOVE QUOTED, SEEMS TO HAVE REACHED THE CONCLUSION THAT MR. FOUNTAIN DOES NOT HOLD AN OFFICE OF PROFIT OR EMOLUMENT UNDER THE LAWS OF IOWA LARGELY ON THE GROUND THAT HE DOES NOT RECEIVE ANY PAY OR ALLOWANCES FROM THE STATE BUT THAT SUCH COMPENSATION IS PAID BY THE UNITED STATES. WITH THAT CONCLUSION I CANNOT AGREE. HAVING REGARD FOR THE DEMONSTRATED FACT THAT MR. FOUNTAIN IS APPOINTED BY THE GOVERNOR OF THE STATE OF IOWA AND PERFORMS DUTIES AS A MEMBER OF THE NATIONAL GUARD UNDER THE LAWS OF THE STATE OF IOWA, IT WOULD SEEM APPARENT THAT HE HOLDS SUCH OFFICE BY VIRTUE OF SAID LAWS AND THE RELEVANCY OF THE FACT THAT HIS PAY IS DERIVED FROM A SOURCE OTHER THAN THE STATE TREASURY IS NOT PERCEIVED. IN THAT CONNECTION, SEE STATE V. JOHNSON, 202 N.W. 191, AND DECICCO V. STATE, SUPRA, WHEREIN IT WAS HELD THAT THE MERE FACT THAT THE UNITED STATES GOVERNMENT SUPPLIES THE MONEY AND EQUIPMENT TO CARRY ON THE TRAINING PROGRAM OF THE STATE NATIONAL GUARD DOES NOT TAKE THE GUARD OUT OF THE CONTROL OF THE STATE OR MAKE THEM ANY THE LESS AGENTS OF THE STATE OF NEW YORK. CF. 19 COMP. GEN. 326; 21 ID. 305.

ACCORDINGLY, I AM CONSTRAINED TO THE VIEW THAT MR. FOUNTAIN HOLDS AN OFFICE OF PROFIT OR EMOLUMENT UNDER THE LAWS OF THE STATE OF IOWA WITHIN THE MEANING OF SECTION 35 OF THE NATIONAL BANKRUPTCY ACT, SUPRA, AND, SUCH BEING THE CASE, THAT FEDERAL FUNDS MAY NOT LAWFULLY BE OBLIGATED FOR PAYMENT TO HIM AS SALARY AS A REFEREE IN BANKRUPTCY THEREUNDER.