In re Nat'l Guard

• Decision Date: 25 July 1899
• Court: Vermont Supreme Court
• Parties: In re NATIONAL GUARD.

45 A. 1051

71 Vt. 493

In re NATIONAL GUARD.

Supreme Court of Vermont.

July 25, 1899.

In the matter of the National Guard. Request by the governor for opinion as to its status, and as to reorganization of the same.

St Albans, March 20, 1899. To the Judges of the Supreme Court of Vermont:

Will you consider the chapter in the Vermont Statutes relating to the militia, together with Act No. 5 of the special session of 1898, and advise me what the duty of the executive is with reference to reorganizing the National Guard of Vermont? It is claimed on the one hand that the National Guard no longer exists, and that in view of certain objections on the part of the public, and of the possible unconstitutionality of Act No. 5 of the extra session of 1898, the executive has no authority to move in the premises, and that the organization of the National Guard of Vermont is dead. It is claimed on the other hand that it is not; that the act passed at the extra session is constitutional, unequivocal, and has behind it the pledge of the good faith of the state to those men who surrendered their positions in the National Guard, and accepted service as volunteers in the army of the United States, that the state should restore to them the rights and positions they surrendered; and that in any event, irrespective of this, the 4372d section of the Vermont Statutes is mandatory on the executive, and that it is his duty to reorganize the militia at once. Your early attention to this communication is respectfully asked, in order that the executive may be advised how to proceed in dealing with the above question.

Very truly yours.

[Signed]

E. C. SMITH,

Governor.

To Edward C. Smith, Governor of the State of Vermont:

Sir: In reply to your request of March 20, 1899, for the opinion of the judges of the supreme court relative to the present status of the militia of the state, and the reorganization of the same, to which this is attached, the following opinion is given:

On the 20th day of April, 1898, a joint resolution of congress was approved, entitled "Joint resolution for the recognition of the independence of the people of Cuba, demanding that the government of Spain relinquish its authority and government in the Island of Cuba, and to withdraw its land and naval forces from Cuba and Cuban waters, and directing the president of the United States to use the land and naval forces of the United States to carry these resolutions into effect," and on the 22d day of the same month an act of congress was approved, entitled "An act to provide for temporarily increasing the military establishment of the United States in time of war and for other purposes;" and on the following day a proclamation was Issued by the president, calling for volunteers to the aggregate number of 125,000, in order to carry into effect the purpose of the above-named resolution, the same to be apportioned, as far as practicable, among the several states and territories, and the District of Columbia, according to population, and to serve for two years, unless sooner discharged. By section 6 of said act it is provided, among other things, "that when the members of any company, troop, battery, battalion or regiment of the organized militia of any state shall enlist in the volunteer army in a body, as such company, troop, battery, battalion or regiment the regimental, company, troop, battery and battalion officers in service with the militia organizations thus enlisting may be appointed by the governors of the states and territories, and shall when so appointed be officers of corresponding grades in the same organization when it shall have been received into the service of the United States as a part of the volunteer army." On May 2, 1898, by general orders No. 6, issued by the governor and commander in chief, the 1st regiment of infantry, Vermont National Guard, preparatory to muster into the service of the United States, to fill the quota apportioned to the state of Vermont, was ordered to concentrate on the state grounds near Burlington during the then present week. Previous to the issuing of these orders, and under general orders No. 5, each company of the regiment was not only recruited to its maximum peace strength of 51 officers and men, but in addition thereto, volunteers to the number of 50 for each company were conditionally enrolled; their acceptance through complete enlistment being contingent upon the probable future requirement that the strength of the regiment be augmented. In this way the regiment was contingently put upon a war basis in strength, and such it was when concentrated under general orders No. 6, but whether in fact these enrolled volunteers became...