New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1890-10-14
THE COURTS.
COLENEL APPLETDN SUSTAINED.
vrrnrp AND NORTH PROPERLY DISCHARGED
FROM TIE SEVENTH REGIMENT.


Jud1, Barrett, in tie supreme Court. Chambers
YESTERDAY handed down an opinion IN tie case OF
Sergeant Veedcr and Private North. who sued for an
Injunction 10 restrain Colonel Appleton and Captain
Allon from discharrinG them from Company ID 81 the
9TH Reg mcnt. The conrt decides that an Injunction
would he OF no effect In this case because the at
which the plaintiff, wished TO restrain tic defendants
from doing had already been done tn" JaiSc goes
into the merits Of the case however. and decides against
Veeder and North The opinion is coed thing for
all Nat onal uar,smcn to cut out and paste in their
hats The following |, Judge Earrctt> opinion Ia fnll
1T appear. that the injunction III this case was not
served nor granted until a!tei the performance
of the act which the plaintiffs seek to enlon As
therefore the alleged injury already done when
the acton begun the irtunction can have no
opera ion. Upon the merits. however the PLAINTIFF
must also ial Section Fl? OF the REGULATIONS for the
National Guard provides that when an enlisted man
Is entitled to a full and honorable discharge his I'M
mediate commander ray apply for such discharge
witicnt such enlisted mans consent. Unless this
regulation IS r-pucrant 70 the Mlltlry Code tho
planiif must submit Mud nothing ~ H." Code r.,
curing lr cn ted r.an'> consent 10 such Application
section - p:nv.d.s that the commander q. IN" r"I
mrnt shall upon pr"p'r certificate OF :hc t?'op
lat'eiy or COMPANY command r grant the cili>.ci
man a fill and honor illc dchl'g' There is rplhin-
here rcuuir:n,; tie enlisted man'' nj or request
cit IS 'ontcndcG. however. that hi, shHih be
imp f>n tie re # q" w,ri grant. Iht
such an important luitit IN up'n t!.c coma
nandcrs power wo"ld scar. Nv have bc'n lett -
Implication. Had Ia, lcrn intended. would have
been natural TO make some provision for the inct'"d
OF setting the commander IN motion. Here III" CON
madrr Of The rrgr! j. II grant the Discharge solely
upon the Tcaic ~ the cunpLn! cpnnialdcr There
Is not word To- act Of the enlisted NAL tn"
word grant refers. not o the wish Of the enlisted
man bat 70 the fact Of the discharge. and tn tho
bclcf supposed to BE- attached t. H. honorable rhari"
ter t. its relief from further service and IT, exemption
forever from Jury duty. Except. therefore. As tho
word apty harmOnlcS with these benefits, II ha~ no
erat-r significance than such words give furnish
deliver
This construction Is fair TO the enlisted man and
important to the For the enlisted Is ab>o
lutey entitled 10 his discharge upon tho expiration u
his term, and II might bc very serious matter for The
state II large number ~ such men could continue
on at their own unr+>trai.cl op,iol-hus keeping
the ranks fu-and then resign in body at some
critical period. Tho just rule Is that which works
both ways. At the cA p!ration Of the term Of enlist
mcnt 1t Is optional with the 10 retire. and It is
also optional with the state 10 make room for new
and compulsory term Of service. Tn, officer, In the
present acted within the powers conferred upon
them by law. AID the INJUNCTION should therefore be
dissolved with COSTS