Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-04-16
WHEN INJURED AT DRILL.
Question Of Whether tho Stale is
Responsible Ia Such Gases,
Attorney General says ~ Nv Not, and
Advises thr Cinim Of Sergeant Al.
q. Ra-mn-..a he Rejected.


National Guard, while at drill on the
Bird Of February last, was unfortunate
enough to fail, breaking the little
finger of the right hand, Rasmussen
who IL tailor by occupation-w as
In consequence inoapsoitsted from
attending to his regular work. In u
letter addressed to Acjutsnt General
John q, Cannon, he asked that the
| State reimburse him for the time he
mad lost through having broken fin
ger, The question OF whether or not
the State WAS liable was reierrei TO the
| attorney Tor au opinion. That
| gentleman holds that the State IL not
responsible anu advises the rejection
| VI the CLAIM.
The opinion is herewith given in
| full:
John @. Cannon, Adjutant General OF
Nau0nal GuArJ OF Uisb.
SALT LAKE Cry, Utah.
| Slr-The claim OF Sergeant Is. q.
RssmuBee OF the National Guarus OF
| Utah for injury received while at arm
on the evening Of February B, 1897,
which was Referred by you to tuIs
fiice for an opinion and euggesiioDs
has been duly considered, anu neg
to submit the following In relation
thereto: M
II assume that you wish 10 be ad vissd
whether there exists q legal LIABILITY
against the Slate for this claim. Sec
lion Ia OF the military code provides:
III an officer or an enlisted mao Ia
wounded or Otherwise disabled or
killed or uies OF wounds or other IN.
| iuIies received while doing duty in
active servioe Of the State, he. his
widow or children, shall receive from
the State, just anu reasonable relief"
This Ia the only law which
woulj seem TO provide relief
Tor n juries sustained, anu its inter
pretalion or construction therefore
becomes important In the determine
tion Of the question involved. The
whole question would seem 10 turn
upon the meaning to bB attached 10
the phrase "wbile doing duty In ac-
tive service of the Stale" or what Is
still more sinple, to the phrase, "activs
SERVICE" By ths use Of these words,
may 1t be said that the Legislature
intended that drilling or other engage.
ments OF the militia for the purpo Is OF
impro vement OF It's members In mill.
tary science aud discipline should
| constitute "active SERVICE" And that
for every Injury received while thus
engaged. the State should respond In
damages? | am OF opinion that such
| was not The Intention, and that, there.
fore, there Ia no liability against the
Slate for such claims.
| Sections IL and IL OF the military
code not only emphasizes this conten-
tion, but settles IL absolutely. "5ec.
| ton IL; The commander In chief shall
have power to carry out any portion
OF the National Guard, as he may
detm necessary to resist Invasion, to
quell insurfec.in, aid in the supptes.
zion Of riots, to aid the civil authors
Ties in the execution OF the laws Of
the State or IN time OF public dan
| ger.
| Section IL; When the National
| Guard shall be in active service az
| provided in section IL OF this act, lite
commissioned officers shall be paid
the same as officers OF like grade in
the regular army Of the United
States" and then goes on AMI provides
| what compensation shall be Received
| by various officers and other members
| OF the National Guard. Then section
| ~ provides, In effect, that when 30
called out, 1t shall he considered TO be
| In active service.
1t will be observed that In this SEQ
ton, the Legislature has defined the
| words "active service" to mean only
| services to be rendered when I'll cially
called out by tue communder-In.chief
to resist Invasion, to quell iDsurrec.
tons, aid In the suppression Of ri jts,
TO aid the civil authorities In the exc.
| cutlon Of the laws Of the State or In
time OF public danger. II tho Legis-
isturs Ia using the words "acIive ser
vice" IN section l2 Intended to limit
| Its application TO the purposes aud
circumstances mentioned In section
IL, and OF this We think there can oe
| no doubt, u 10 lair To presume,
under the fundamental rule u
| statutory constru elton, that when
1t used the same words in sec.
ton IA, 1t did so In the same sense aud
| under the same Limitation. II this
construction be correct, then under
section IA no relief could be grauted,
either to member of the National
Guard or TO his widow or children,
unless the i'Jury or death resulted
while in active service as provided In
section IL.
There being no law authorizing the
allowances or payment OF the claim In
question, you are advised that the
same should be rejected.
have the honor 10 be,
Very respectfully yours,
A. q. BISHOP.
tfnTnAy laanaFAl