The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1895-08-30

Appropriation 1t Must be Used for Pur-
poses Set Out in the Law in General
However, the Soldiers Cannot Dictate
the Rates the Railroads Shall Charge
for Transportation.
Topeka. Kan, Aug. 29.-The opinion
rendered by Attorney General +. b.
Dawes concerning the state eDcamp-
ment. Of the K. y. G. at Emporia and
the rates to be charged by the railroads
of the state for transporting troops
and supplies was made public yester-
day. AS mentioned yesterday morning
the attorney general holds that the en-
campment expenses and the pay Of Off
,ers and men may be taken from the
fund placed at the disposal Of the mil
Itary department for actual service"
by the legislature.
The statute is mandatory so far as
the encampn1ent is concerned and in
he opinion the attorney general says
IN part:
1T will be seen that all of the APP
preparations are in the exact language
Of the appropriation Of 1855; that IS tot
cav: Pay of militia when called into!
active service The legislature is sup
posed to have passed this appropriation
act with full knowledge and under
standing Of what. is required OF the.
Kansas National Guard. It Is presum-
I'd that the legislature passed the aD-,
preparation with full knowledge of the'
statutes of Kansas providing that there
shall be an annual muster, or camp OF
instruction, and also that the statutes
9f Kansas provide that when they do
meet in annual muster they shall re-
peiye pay therefor. This then being thef
Ease, the presumption is that some
where in the appropriation for the state
militia it somewhere provides for the
expenses for this annual muster, which
Is absolutely required TO be held.
THE question then is: Out Of which
fund appropriated 70 the adjutant gen
eral for the use of the Kansas National
guard shall the expenses of the annual
muster be paid? II is my opinion that
If the commander in chief orders the
militia Of the state of Kansas to ap-l
pear in camp. or annual muster, that
during the time they ere so in camp
they are performing active military SER
vice; and that when so called by thei
commander-in-chief and compelled TOT
leave their ordinary pursuits and go!
into camp, subject to military disciplinet
and military rules, that they must BET
as called into active ser :
vice Upon this subject [ refer yout
10 an opinion delivered by my imme-'
diate predecessor. Hon. John T. Lit,
tie. rendered to the governor Of this
state. September %, 1898. In discussingf
the question as to what is meant by
.pay for active service Attorney Cen
eral Little uses the following language
What is embraced by the term pay
as here used? If il means only the per
diem of the officers and men, then how
Is Transportation to be paid for in caseh
the National guard shall be called out /
to put down an Instruction or to repel,
invasion? How are the troops to bel
fed? No specific appropriation has ever
vet been made for these purposes, and ]
unless the word pay includes all the 1
expenses OF the militia in active service,
the appropriation Of twenty thousand i,
dollars had as well remain unenacted.
for this is the only appropriation out of /
which TO pay such expenses. Nor ls 4
this all. Section 3775 of the general
statutes Of 1889 says: There sail be an \
annual muster to continue for period
IF not less than three nor more than
six days and to be held at such time
and place, or places, as the commander
In chief NAV designate The order for
such a muster, is a. military order. and
Il must upon penalty be obeyed. 1t
summons the guardsmen from his civil
affairs and compels him, from three
Or six DAYS to he a soldier. living like
a soldier in camp, Withdrawn from the |
customs of civil life. The legislature |
must be presumed to have been cogniz- |
ant of all these things and we must !
suppose that it meant to provide the |
means of doing what It had required |
by a mandatory shall TO be done |
Hence the word pay must be taken |
to include all the expenses of the militia |
In active service
In conclusion Mr.. Dawes says: at
Is. therefore. my opinion that if the
Kansas National guard is called tn
annual muster by the commander in |
chief as provided by law, their expenses |
and per diem can he paid out Of the
appropriation of 500, 600 for pay Of mill
tia when called into active service a :
provided in section / of chapter of the |
session laws Of 1885,
The question concerning transpOrta- |
ton of troops and men has been freely |
discussed in the newspapers. at the |
time of the passage of the law and on !
various occasions since the session Of /
the legislature. The statute referred /
to is chapter 1913 O fthe session laws !
entitled IAN act fixing the charges TO be !
paid TO the railroads for Transporting
the Kansas National guard of the Kan
sls reserve militia. and stores. horses !
a ammunition. equipments and baggage
# the same. the terms Of transporting /.
the same. and prescribing a penalty fo- /
the violation of said act"
Section | Of said act. among other /
things. provides. THAT whenever ii /
shall be necessary for the officers or
men Of the Kansas National guard or
the Kansas reserve militia 10 travel /
upon any railroad in this state under
orders from competent authority 70 per |
form military duty. such railroad shall !
furnish transportation at the rate Of |
nne cent per mile for the whole distance /
10 be Travelled upon such railroad or !
railroads for each officer or enlisted |
man 50 carried. etc. etc
Section fixes the price II he paid |
Tor the transportation of horses, stores. !
camp equipage. etc.
Section 8 provides that all fines and |
penalties taxed or assessed against the Z
railroad companies for violation of this /
act shall be paid into the state treas .
ury 10 the credit Of the military fund /
of the state 70 he used for the benefit |
of the national guard as the military |
board may direct"
Attorney General Dawes says con-
cerning the above law:
Il have very grave doubts rs - the !
validity Of sections 1 and Of said act.
even il the provisions Of section > did 4
not attempt 10 divert the fines and /
penalties from the school fund. but It /
i not necessary 70 so into details upon
TINS subject at this time. because seC- !
ton being Invalid and Unconstitution- |
al. the main power OF enforcing sections /