United States v. Dern, 6274.

• Decision Date: 03 December 1934
• Docket Number: No. 6274.,6274.
• Citation: 74 F.2d 485
• Parties: UNITED STATES ex rel. GILLETT v. DERN, Secretary of War, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

74 F.2d 485 (1934)

UNITED STATES ex rel. GILLETT v. DERN, Secretary of War, et al.

No. 6274.

United States Court of Appeals for the District of Columbia.

Argued November 7, 1934.

Decided December 3, 1934.

Arthur Hellen, of Washington, D. C., for appellant.

Leslie C. Garnett, U. S. Atty., and H. L. Underwood, both of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

Petitioner is an officer in the National Guard of New York state. He served overseas in the 27th (New York) Division, A. E. F., was wounded in action, returned to duty with his unit while still overseas, and came back to the United States in command thereof. He was discharged from the United States Army April 1, 1919, with the rank of major of Infantry. In May, 1919, he was appointed and commissioned colonel in the New York National Guard by the Governor of that state, and on February 28, 1920, after passing the physical and mental examination prescribed by sections 73-76 of the National Defense Act of June 3, 1916 (39 Stat. 166 see 32 USCA §§ 111-113, 115), "federal recognition" was extended to him and to the state commission he held as colonel in the National Guard, and on June 10, 1921, he was commissioned colonel in the Officers' Reserve Corps, United States Army, pursuant to the provision of section 37 of the act (see 10 USCA § 351 et seq.). On July 6, 1926, he was promoted to the rank of brigadier general of the line of the National Guard of the state of New York and was extended federal recognition in that rank. And on February 2, 1927, he was commissioned a brigadier general in the Officers' Reserve Corps, United States Army, by the President, acting by and with the advice and consent of the Senate.

During all this time petitioner was receiving compensation from the United States Veterans' Bureau for physical disability resulting from wounds received in battle while overseas. On June 7, 1928, he was placed upon the emergency officers' retired list pursuant to the provisions of the Act of May 24, 1928 (45 Stat. 736), and ever since has been, and now is, drawing the retired pay of a major of the United States Army through the medium of the Veterans' Bureau.

On March 4, 1933, Congress passed the War Department Appropriation Act (47 Stat. 1571) and appended thereto a proviso as follows:

"No part of the appropriations made in this Act shall be available for pay, allowances, or traveling or other expenses of any officer or enlisted man of the National Guard who may be drawing a pension, disability allowance, disability compensation, or retired pay from the Government of the United States: Provided, That nothing in this provision shall be so construed as to prevent the application of funds herein contained to the pay, allowances, or traveling expenses of any officer or enlisted man of the National Guard who may surrender said pension, disability allowance, disability compensation, or retired pay for the period of his service in the National Guard: Provided further, That present adjutants general who may be drawing such emoluments may be continued in a federally recognized status without pay under this Act.". Section 1 (47 Stat. 1589).

Petitioner having elected not to surrender his pension, the National Guard Bureau, War Department, acting through its Chief and under the authority of the Secretary of War, terminated as of June 30, 1933, the federal recognition theretofore extended to petitioner and his state commission. Petitioner obtained from the Supreme Court of the District of Columbia an order directing the Secretary of War and the Chief of the Bureau to show cause why mandamus should not issue directing them to rescind their acts and restore petitioner's federal recognition. Respondents answered; petitioner demurred to the answer; and, after hearing, the court overruled the demurrer, denied the application for mandamus, and dismissed the petition. This appeal was then taken. The state of New York, through its Attorney General, has filed a brief as amicus curiæ in support of the petition, and tells us that the withdrawal of federal recognition from a commissioned officer in its organized militia will disrupt the proper training of the 10,000 troops required to be maintained by the state Constitution. The decision is, therefore, of importance not only to petitioner and the state of New York but to National Guard officers of most, if not all, of the other forty-seven states.

The sixteenth clause of the eighth section of article 1 of the Constitution confers on the 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." By Act of May 8, 1792, R. S. § 1625, et seq., Congress provided for the organization of a state militia, and, as early as 1808, appropriated money to be used for the purchase of arms and equipment to be distributed among the several states, the District of Columbia, and the territories; and thereafter from time to time until 1903 increased the appropriation for arms, changed and modified the methods of organization, authorized the use of government owned land for training, provided for detail to the militia of Regular Army officers as instructors; and following the Spanish-American War, by Act of January 21, 1903 — the Dick Act (32 Stat. 775) — repealed many of the former provisions affecting the militia and provided more liberal treatment so far as supplying money and materials.

While the European War was in progress, Congress again — June 3, 1916 — passed a general statute in relation to the militia, known as the National Defense Act (39 Stat. 166). The act was designed to be a general law or code dealing with the militia of the states and their relations with the United States, and in section 74 (see 32 US CA § 111) the term "recognition," as applied to National Guard officers, first appears. By the provisions of this act and amendments thereto not important here, Congress prescribed various rules and regulations in relation to the discipline and training of the National Guard, established a National Guard Bureau in the War Department, imposed certain physical and professional tests as qualifications for officers, and provided an appropriation to pay the officers and men while undergoing field and armory training.

Under the provisions of this act, petitioner, as brigadier general in the New York National Guard, was charged with the duty of instructing in military science the infantry regiments maintained by the state as part of its National Guard. He likewise had authority over the fiscal affairs of certain of the armories in the state and supervisory authority over federal military property and supplies loaned or furnished the state by the federal government. When Congress inserted in the appropriation bill the provision which we have heretofore quoted, petitioner was a National Guard officer by appointment of the Governor of New York under an applicable state statute. He was given the option of surrendering his pension or losing his federal status. He declined to forego the pension, and the action on the part of the War Department followed.

From all that appears above, it is clear that Congress, in carrying out its constitutional powers, had almost from the...