New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-02-15
NATIONAL GUARD AFFAIRS.
AN IMPORTANT LEGAL OPINION.

ERAL TERM OF THE SUPREME COURT
The most important document which has appeared
I'm some time affecting the National Guard OF this
state. the opinion handed down by the General
Term OF the Supreme Court on Friday in the case
Of Captain Leo. Every who Is al all Interested
in knowing what his rights In the National Guard
should read IT, 1t is the first time according to inc
opinion Of Justice Andrews, which was hahded
down a few weeks ago, that these questions nave bceh
passed upon by 50 high court as the General Term
OF the supreme Court From careful perusil OF ule
opinion which Is printed below In full, II VIII DC CD
served that the Court does not refer to single pIece
dent upon which 10 base It's conclusions. Presiding
Justice Van Brunt writes the opinion which Is az
follows:
1t would not be at all necessary 10 add ANYTHING
to tie very satisfactory opinion pronounced by Mr
Justice Andrews upon the Application % ue Seci an
do but little bat reitcrae what mas alieah! Den
said by him in the consideration oil the suijeot %C
were It for the fact that II seem, 70 nc ds,me
by the learned counsel Tor lhe iGiaVL' ofa ~
the government Of Its militia are derived nom tie
Federal Constitution .and laws anu traE Nh th nact
tak"u the Icsslatnrc Of this state had rsh; To
confer the power To- act upon f., Governor. whereas
upon the contrary whatever DELEGATION Of authority las
been made /, from the people the United states ana
~ Inc United states 1t therefore follows that IN
considering the argument very briefly We must nave
n.tcd states and gather from that what authority
Ina, been conferred hy the people upon the intel
states In reference to It's militia. a.. ,.,,..
The fourteenth division of section OF the Consu-
luton provides Congress shall have power to pro
vdc for calling forth the militia 10 execute the laws OF
the Tnion suppress Instruction and repel INVASION
izing aming and disc pinins the militia and for gov
ernng such part Of them ~ may be employed IN ,he
service Of the United states. reserving TO the states
respectively the appointment Of the officers and uIe
authority Of training the militia according 10 te dlss
plne prescribed by Congress. IL VIII thus be seen
that the power conferred upon the United states Is TO
provide for organiAnS ainlns ana us,ipiims NV,
employed In the service of the United states.
IL Is apparent That the organization here mentioned
refers To- the manner Of formation Of the militia the
weapons with which they shul lie armed ana uIe
ririus1 a, used I'm this section, refers IN
ioNl,e 10 Government action. a Is apparent
iIo ' pIoy s that the authority oi training
the militia according to the discipline PRESCRIBED by
,y,rr -, z.lou, in guarding tho right t. control the
government Of the militia ana me ma'eiIai vi nS
mi take and that greater powers should be Claimed
bcclu-c II the word orsanlLlng' than wese implied
militia the appointment u officers and authority TO
train /, expressly reserved; and the only instance
United states IL distinctly mentioned, viz when th,
militia >ha De employed IN the service OF III" ml','t ~
the militia Is within the province Of tho state ana
Therefore any Hesitation wiic9 tne Sa'f Hy no Gpe
I'm ontventon Of the powers conferred upon Congress.
a, long It doe, not infringe upon the method Oh
Why was the power granted 10 the United states
The r,riti,, II wa, that the militia should De organ
lied after model armed In = uniform manner ana
dripInrl IN one system of tactics the result beny
tl, when the militia Of different states came together,
called into service by the Government # the nlt'l
satc trv came togcthc~ a, a homogencou, body. all
ore,nllcd I'm one way, armed In way. and dSci-
ia,,.rt mrthod- If examination different arms and
arnuained with different systems Of tactics and hence
their u-culuc-- very materially impaired. -. .,,-
II wa, to provide against THIS contingency that THIS
power wa, conferred upon the United states by the
Constitutions and beyond this the states delegated no
authority 10 tie United states TO interfere in their
intc nal affairs In respect 10 the government OF me
Now IT may be that in some particulars the mill
tary code which has been adopted by tho State
Of New York may infringe upon some OF the
conferred by the Constitution II the United state, but
they In NJ respect relate 10 the subject which Is pre-
IN" action Of the nrtiortc, Of nj. STATE IN dsbaudng
company q militia It was n pursuance Of the
Rev ed statutes. section $50 It provided that
the militia Of each state shail be arranged into dlv,
the Legislature might direct: and that each brigade
regiment Of certain number of battalons, each
battalion Of certain number OF companies and each
attempt in the legislation # Congress 10 interior with
tho government Of the militia. except when called into
the service IF the United states.
II seems necessary to follow that all governmental
powers are To- be exercised by the state within tho
limits u the Constitution OF the state I'm such manner
a. the Legislature may direct.
lut it is urged that the statute was "A violation
reator. Leo, from his office and status as an officer Of
the militia contrary to Article II. section y OF the
vide, that commissioned officer Shall be removed
from Office unless by the senate on thc rncommrudo-
u"n Of the Governor. stating the ground on which
such removal is recommended. or by the decision OF
Court martial pursuant 10 law. II is clear that tis
provision has not been transgrcSScd The relnfor has
not been removed from hi, Office but simply relieved
ol ms comua!d, distinction recognized bv All
military authorities and acted upon by The prc,
dcut OF TIC United states continuously i'm his sinner
N'Iti ., unG oSar army Of the United states.
supervision Of the action Of the governor in eases ~
erection provided by the statute such discretion ma
be grossly abused. The preSumntjon nsnai js ny
public officers VIII perform their duty consren ,meI,
a , dr , w,' l,ic,SS OF The community and il
doing those thing, which he haV hor "ooerhor IN
authorized in hi, discretion to do bv he eoi i,B
,G Tue oo9Tu ii'a ,e caed upon 10 review executive
9mccrN IN Ih'ir appointment of officers where Tia
legislature has seen III to confer snch now te
tue gruund tiht thcy have abused the discretion con-
i'rFcd upon thcni. IL seems apparent thar Such an
argument cannot obtain rs the mower T. nov sui, SUN an
soluc In the one case than it is In the other 'o az
II seems 10 be assumed that oii H., "t n'
the Revised statutes OF the Tinted state IT, - MS Oh
To the government Of the militia are applicabc E %
cnrS Wten tn@ h'W'f r., to govern the militia has been
regulations apply to the militia only when H. H. tnSe
subject To- me goVernmenta power Of the United StatcS
II Is needless T. pursue the subject frrtbcr ,o
seems u Us tat me arrogaOn 10y the cnurt ~ any
Snch power US IS claimed would be an invasInn ~,
the functions oi another department of the t;ovcrn
mcnt, and would be absolutely ,nbver,ivr ~ h,
respect for and obedience to authority which is noce.
SarN in every military organization " "0'o'
We think therefore. that there Is no case ,,,do an,
Wlch would lnstfy ms court In granting the writ
asked for, and the application must be denied WV
will be elected on TUESDAY evening There are tyro
candidates in the feld-sergeant Iealv and torporai
day evening The candidates ara ; a vi, Mednes,
leonard and Lieutenant Morarity. The election Tor