Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-12-01

effect. Every enlisted man in the State
volunteers, every officer. every official, in
Guiding notaries public. who entered the
service OF the United States by volunteer
ing for the war against Spain vacated his
office.
EFFECT OF THE OPINION.
A State soldier then is not State SOL
der now; State official. no matter how
insignificant. lost his place when he sign
ed the muster-ron OF Uncle Sam. The
Acknowledgement seems to have been
very clearly of the opinion that a man
cannot serve two masters.
A great many of the officers Of the Nir-
ginia regiments occupied important posi-
tons. Colonel Baker is Commonwealth
Attorney of Shenandoah county. Accord
ing TO the opinion of Attorney-General
Montague. his position is vacated. Lieu
tenant-ColOnel Edwards. of the Fourth,
was Treasurer of Southampton county.
His place is vacated. Private James @.
McCune, Company A, Second Regiment,
was a member of the State Senate from
Shenandoah county. His seat is vacant.
And so on the instances could be multi
Piled Great numbers OF officers and men
held positions of more or less importance
under State and county governments.
Moreover. every officer who volunteered
Is out Of the State service. Every one
who did not still holds his rank, unless
the Governor holds. as has been held by
at least one of his predecessors, that
where n command no longer exists the
officers commission does not exist. In
other words. that there can be no officer
without a command. Every private SOL
der Is mustered out.
MR.. MONTAGUES LETTER.
The letter OF Mr.. Montague is as fol-
lows:
Richmond, Va, November 80, 1898.
To His Excelency. J. Hoge Tyler, Gov
ernor of Virginia:
Sir,-I have the honor to reply as fol-
lows to the inquiries propounded in your
letter of the 18th instant:
/. / am Of the opinion that the posi-
ton of notary public is vacated by rea-
son Of the enlistment of such official in
the volunteer army Of the United States,
as organized in the late war.
2. / am further of opinion that the SOL
diers and officers of this State who en-
listed in the volunteer army Of the United
States in the recent Spanish war thereby
vacated their posts and offices under the
militia of this State
Such seems 10 be the proper construc-
ton of the status affecting the matter
in question. And in this connection I
beg 10 enclose you a copy OF a letter TO
the Commonwealth Attorney of Peters
burg, dated May 8, 1898. wherein is ex-
pressed more at length my views upon
this subject Very respectfully.
A j. MONTAGUE,
Attorney-General.
The letter written TO the Common
wealth's Attorney Of Petersburg referred
10 by Mr. Montague expressed almost
precisely the same views as those set
forth above. Lieutenant c. T. Lassiter
was elected Commonwealth Attorney OF
Petersburg, after coming TO Richmond
with his company.
Mr.. Montague, in conversation with
Dispatch reporter last night, said he ZEN
dered his opinion with all the provisions
Of the code on the subject in mind.
PROVISIONS OF THE CODE.
The. two sections Of the Code of Vir-
ginla bearing on the subject are the fol-
lowing:
Section 165-No person shall be capa-
bic Of holding any office or post mention
ed in the preceding section who holds any
office or post of profit, trust, or emolu-
ment, civil or military, legislative, ex-
ecutive, or judicial, under the government
of the United States, or who is in the
employment OF such government, or
who receives from 1t in any way any
enolument whatever, and the acceptance
Of any such Office post, trust, or emolu-
ment, or the acceptance Of any emolu-
ment whatever under such government,
shall ipso facto, vacate any office or post
Of profit, trust, or emolument, under the
government Of this Commonwealth, or
under any county, city, or town thereof
lt.zff naft Lon
shall not be construed 10 prevent men,
bers of Congress from acting as justices.
visitors OF the University. or Virginia
Military Institute, or from holding offices
in the militia, or TO exclude from office
under this State, on account of a pen
sion from the United States, person
to whom such pension has been granted
on account of a wound received in war,
or TO exclude from such office or post
militia officers, or soldiers, on account of
the recompense they may receive from
the United States, when called out into
actual duty"
MILITIA NOT CALLED OUT
Referring to the last section, Mr.. Mon
tague holds that the militia was not called
out. The officers and men volunteered.
The President refused TO call out the
militia of the various States, the Cover
ror of this State refused to do so. So
far from doing so he expressly stated
in his proclamation that volunteers were
not wanted from among those who
could not afford to make the necessary
sacrifice Had the militia been called
out. Mr.. Montague says. he is rather of
the opinion that his decision would have
been different.
An interesting question arises as 10
whether acts performed by officials In
their official capacity since volunteering
are legal Acknowledgement Montague
thinks It likely the courts would decide
that the officials acts were valid. II the
4. h. hn1