Evening star., 1898-10-05

l
nent of Justice has rendered an opinion to
| the Secretary Of War W hich does not leave
the remotest doubt of Gen. Harries posi-
ton as commander of the District militia.
The decision is approved by Attorney Gen.
eral Griggs, and finally settles the ques-
| ten. The decision follows:
The Opinion.
OCTOBER 4, 1898.
| THE Secretary of War
Sir: 1 AN In receipt of your communi-
cation of the 10th ultir7o in which you re-
quest the opinion of the Attorney General
upon the question whether George H. Har-
| ries who was appointed and commissioned
| by the President commanding general Of
| the militia of the District of Columbia prior
| to the war with Spain, but who accepted
| from the President a commission as colonel
| OF a volunteer regiment composed largely
| OF the Offices and men Of the militia of the
! District of Columbia, organized under ;he
| act of April 22. lStS cSo Stat. 36l). proyil-
| ing for the increase of the military eSIab-
| lishmeat of TIE United States in time Of
war, is now the commanding general Of the
| militia Of the District of Columbia. author
| lied under ,hc act of May II. 1898 GO Stat.
| fi0, providing for the organiza tior Of a
naval battalion il the District of Columbia.
to nominate candidates for appointment as
| officers in such 2aNai battalion.
| The act of March l, 1889. for the organ
izaticn of the militia of the District of Co.
lumbia co Stat. 7T9 provides (section 81
| that the President of the United States
shall be the commander-in-chief of The
| militia of the District Of Columbia and
! (sectfon . that there shall be appointed
and commissioned by the President of the
| United States commanding general of the
| ni1iltla OF the District Of Columbia with
the rank of brigadier general. who shall
mold his ot1ce until his successor is ap-
| pointed and qualified. hut may be removed
at any time by the President
Gen. H&rries was in command Of the
Elstrlct militia when the war with Spain
| was declared. He held this office at tho
| pleasure of the President being removab HE
a any time His term was to last until his
successor she uld be appointed and qualified
| rms being the situation, the President ;.p-
pointed and commissioned him colonel Of
| the volunteer regiment organized in the
| District lie accepted this commission. hu.
| dld not resign the command of the District
| militia. Was the President bound to ;raat
ms acceptance as vacation of the COM
nand of the District militia and appCint
/ fis successor? -'
Harries Can Hold Both Offices
l thidk not. There IS no statutory pro-
hlbition against the holding Of the two Of
! flces. Is there any incompatibilitv in Iaya
! lhcompatbihty exists where the na.u~e
| and the duty Of the two offices are such AS
| to render it improper, from considerations
OF publ: policy, for one Incumbent to hold
Doth II does not necessarily arise when
the incumbent places himself for the time
beng in a position where ii may be irnpos-
sloLe Tor him to discharge the duties of
sS noSn ol,lGeS SBryan agt. CatteIl u Iowa,
3S 800; l Dill Nun. Corp, sec 227 motel
by accepting the volunteer commission
zen Harries did not subject himself to q
cohhictlrg authority. for he received it from
his comnlander-in-chief, the President
Moreover in accepting it. and retaining.
command of that portion of the District mi
ltla which responded to the call Of the
President ana entered the service of tho
civ tor,lr- .JN;-,
OF the things for which he had been
ade commanding general. The Dis
trict militia, organized under the act
of March l. 1889, are subject to be called
into the service of the United States
(sections and %. In case of such cali the
National Guard. being the active militia
are the first to be ordered into the service
(secuon 10). No officer or soldier oe the
National Grard. when ordered into the SER
vice of the United States in obedience to
the call of the President, shall be excused
from such duty, except upon the certificate
of surg (section 40. The reading of
the entire act of March l. 1889. is corvinc-
ing upon the point that one of the objects
for which the District militia was organ
lied is to meet any call for service from
the United States through the President
Absence From the District
The act of April 22, 1896, authorized the
President to create d volunteer army and
for that purpose to require each state ana
territory and the District of Columbia to
furnish its quota. Under this authority
the President made call upon the District
of Columbia. One regiment was required
1t vas only natural that the commanding
general of the District militia should be the
colonel of this regiment, made up of Off
GERS and men from his command 1t is
true that the service of the United States
took him out of the District but mere ah-
Sence from the District would not in itself
amount to an abandonment of the District
command. Suppose that, with the appro-
val of the President, he had gone abroad
for several months to observe military op-
erations there-such absence instead of in
dicating an intention to abandon his com
mand. might be taken for the express pur-
pose of improving himself in military
science. SO as the better to exercise the
command And so with the experience in
actual war gained in Cuba.
Moreover absence from the District |
would not OF necessity interfere with the
discharge of the duties of commanding gen.
eral of the District militia. During a tenn
porary absence of commanding general
his subordinateS at home might under his
direction discharge all the duties required
of him. The war itself might last but a |
few months, and the matter of appointing
his successor and the successors of the Of |
fcers who accompanied him might well be |
left in abeyaEce to await the issue of the |
war. This, 1t now appears, was what was |
done. There being no incompatibility in the |
two offices the acceptance of the volunteer |
commission could not operate as a yaca- |
tion of the District command unless the
President fit to treat it as the euuiya-
lent of resignation and accept it by ap- |
pointing a successor; for the resignat ton of |
military Office does not take effect until |
accepted by the proper superior authority. |
(Mimmack V. u. S., 90 L. S., 42S)
Question for the President.
THE question then finally resolves itself |
into one of expedieacy-what was best for
the public and for the District militia, un- |
der all the circumstances. This question
of expediency was for the President to de-
termine in view of the situation presented.
Whether the public interests required that |
the National Guard be reorganized and the
places of those absent in Cuba treated as
vacant and filled, that these who had
responded to patriotic call in the line of |
military duty be regarded as temporarily
absent on leave, and their places reserved |
for their return. was for the President, as |
commanderin-chief, to determine The
fact that the President did not appoint a |
successor to Gen. Harries may be taken as
a sufficient indication that he saw fit to
take the latter view.
1T is. therefore, my opinion that Gen,
HarrieS ia the cornmandin1 officer Of the