The National tribune., 1885-06-25
WASHINGTON, THURSDAY JUNE
OPINION Y.

OPINION v.
"The Department of California In 1888 adopted
Bylaws providing for . Department relief fund,
and q Board Of Trustees to manage and dIsburSe
| the same. During the year moneys were received
| for this fund. In January. 1884. resolution was
passed transferring all tile money in the relief fund
| to the general fund of the Department Against
| this action George II. Thomas Post, No. 2 Depart
ment OF California, presented a protest to the DE,
partment Commander in which it was claimed
that, Inasmnch as the resolution confcted with the
| BYLAWS previously adopted, it was illegal. This
protest returned to the Post by the Department
Commander, holding that the resolution adopted
by the Encampment of 1884 in relation to this fund,
| being IL, conflict with the Bylaws adopted by the
preceding Encampment creating the fund, operated
to repeal such Bylaws. and therefore the transfer
OF the money in relief fund to the general fund was
lawful. From this decision Post No. appealed.
The Department Encampment of California un
der due authority, duly enacted its Bylaws, and
| then became the fundamental law for the govern
nent OF all future Encampments, until the same
were altered or amended as therein provided. The
resolution was That the money in the relief fund
be transferred to the general fund There is moth
ing in its language to imply that it was the object
OF the mover to repeal the Bylaws creating the
relief fund and Board. Its terms applied TO the
fund alone and if, in itself efccual to transfer the
money therein to the general fund there is nothing
IN 1t to prevent future lSncampment from trans
erring IT back into the relief fund.- or to preventthi
fund from being repenished by future assessments
and donations The effect of the resolution if legal
was only to interrupt the operations of the Relief
Board by dcpriving 1t of its then existing fund In
this case this relief fund whether raised by assess
ment or donations, became trust fund for speci
he'd purpose, and the Department had no further
control it than to for the special purpose
for which 1t was provided. II would be manifesty
unjust for Department Encampment to adopt
measures to provide fund eitherby assessment or
voluntary contribution, for purely charitable pur-
pose, and the next Encampnient 10 lay its hands on
SUCH fund and pervert it to other and entirely
different uses. am of opinion that this resolution
was wholly imperative and void, both rs to the
transfer o the money in said relief fund TO the gem
eral fund, aud as TO The repeating or in any manner
affecting the BYLAWS under which such fund was
established.
OPINION VI.
I'm whom lies the authority to name time and
place for annual meeting OF Department Encamp-
ment, the Department Commander or the Council
of Administration?
In the absence of any action by the Department
Encanpment fixing the time and place for holding
its annual meeting, the power to fix the time and
place therefor devolves upon the Council of Ad-
ministratiOn.
OPINION VII.
james Kane, late Second Lieutenant, 18th Pa.
Cav, a member OF Poet 10, Department of Pennsyl-
vana, A X. was by order the President ofthe
United States dated June TO- 1864 for reasons there
IN stated dishonOrabiy dismissed from the army;
and that by subsequent order of the President,
dated July 20, 1879 the disability of Lieut.. Kane to
re-enter the army, in subsequence of his dismissal
IN 1861, was removed. With this record the ques-
Grand Army of the Republic was submitted to the
Department Commander of Pennsylvania. He de-
cided, upon the opinion of his Judge Advocate that
the order of the President of July %, 1879 remov
ing the disability of Lieut.. Kane to re-enter the
army. was equivalent to and operated an hon
orable discharge; and he was thereby rendered
ellglbe to membership i'll the Grand Army OF the
Republic"
The only question to be determined in this case
Is, whether the order OF July 20, 1879. relieving
Lieut.. Kane from the disability to re-enter the army,
which was part of the original order OF dismissal
ol June io' ioo Is equivalent to and operates as an
honorable discharge, as to bring him within the
rule of eligibility to membership i'll the Grand Army
OF the Republic provided by Chapter Article ~,
of the Rules and Regulations. We think it was not
honorable
discharge, within the meaning of the Rules and
Regulations. This order was issued Is wears after
ihe order OF dismissal and ID years after the
Volunteer army for the suppression of the
beliion." from which Lient. Kane was dismissed,
had been disbanded. Wben'the order of June 10,
1884, took effect, Lieut. kanes record of discharge
from the army was complete, and he reiegated
to civil life While the army from which he was
dismissed had an existence. 1t within the
power oi tie President TO reappoint him and after
wards give him an honorable discharge. There
We're also other methods by which he could have
been restored 10 his position in the army while
that army had an existence and given hon
orabc discharge. But when the volunteer army,
to which he belonged. was mustered out, and had
no longer any existence, it WAS impossible to either
restore or reappoint him to that army. The sem
tence of dishonOrable dismissal was executed
penalty when the order of June TO- 1864 took effect,
and could not be changed. But that part of the
order prohibting him from again receiving ap
polnt1nent IN the army, was continuing penalty,
which the President, by virtue of his pardoning
power. could ut any subsequent period relieve him
from This il all the President did by the order of
July %, 1919; and, from its language, ALL think,
he intended TO do But whether this be not,
he had no power in any manner TO change the rec
ord of dismissal and could not, therefore, render it
an honorable discharge, or equivalent to an hon
orable discharge.
am. therefore, of opinion that James Kane not
having an honorable discharge from the army, was
at the time of his election and muster II member
of the Grand Army Of the Republic ineligible to
such membership, and that such election and mus
ter Is wholly illegal and void
OPINION VIII.
IAN applicant was duly elected TO membership
in Post l57, Department of Pennsylvania but be-
fore being mustered conducted himself i'm such a
manner to cause the Post to adopt a resolution
requesting the Department Commander to set aside
the ballot by which he elected Upon this
Commander.
If an applicant has been duly elected but before
he has been mustered he conducts himself to
convince the comrades of the Post that he is un-
worthy of membership in the Grand Army of the
Republic, they may by a vote of the Post ask the
Department Commander to set aside the ballot by
which such applicant elected; and it is lawful |
Tor him to set such ballot aside.
OPINION IN.
"Is person who served during the war for the |
suppression of the rebellion only as a citizen or |
volunteer aid upon the staff of Major-General |
without having been commissioned mustered |
into the army and who received no pay for such |
service eligible TO membership in the Grand Army |
of the Repubiic?
Chapter l, Article ~, Rules and Regulations, de-
fines who are eligible TO membership. The terms |
Soldiers and Sailors" therein used applies only
to such were duly mustered into the army or |
navy. volunteer aid upon the staff of general |
officer there only by the courtesy of such Off
He was not subject To duty, except he chose
to perform it. Though he may have been given |
certain rank while acting as suc. aid he was never
the!ess, only civilian voluntarily performing the
duties of soldier and could terminate such service
at his own pleasure. He was not soldier of the |
therefrom. and is not therefore, eligible to MEM |
bership in the Grand Army of the Republic.
Respectfully submitted, ID. X. AUSTIN,
Judge Advocate General