The times. [volume] (Richmond, Va.) 1890-1903, 1898-12-01
A Few Officers Have Been Left With
out Commands.
ATTORNEY GENERALS OPINION.
He Says That the Soldiers aud Omcers
ofThis state who Enlisted i'm the
Volunteer Army Of the United
States Thereby Vacated Their
Posts aud Offices Under
Militia of This state.

According TO Attorney General Alonta-
those persons who We're mustered
., Federal service during the late war
dcated any Office they may have held
under the State government either civil
or military. This applies TO notaries pub
lie.
Governor Tyler wrote to Mr.. Montague
for his opinion as TO this matter and the
Attorney C neral gave his reply yester-
day
This decision will have a far-reaching
effect. IL means that tho entire State
militia will have to be reorganized. For
instance. the omcer of regiment or
company. or a soldier who was in the
state service and entered the Federal
service. vacated the position he held in
th volunteer army az Virginia.
OFFICES VACATED.
Tho effect OF ne decision probably will
be that unless the officers left without
commands. or with commands below the
minimum. shall resign, or ask TO be
placed upon tho retired list, their com
missions viii be revoked. There Will
have 20 be a complete reoreanization Of
the militia and an commissions Will prob
ably be revoked, unless the officers, whose
positions have not been vacated shall
resign.
Tine opinion seems. also. 20 mean that
Col. Baker vacated the office of Common
wealths attorney Of Shenandoah county.
which he claims to hold now. that LAeu-
tenant-Col0nol Edwards. Of the Fourth
Regiment. vacated the office of treasurer
of Southampton, and that other Offices
were vacated.
THE OPINION.
The Attorney Generals opinion is as
follows:
Richmond. va. Nov. 30. 1S9S.
To HIS Exccucncy. j. Iloge Tyler, Gov
ern0r az virginia.
Sr-I have .he honor to reply as fol-
lows 90 the inquiries rrop0unded iu your
letter Of thc -9th instant:
l. 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 Zoo the late war.
2 / am further OF opinion that the sol
diers and officers Of this state who en-
listed I'm 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 90 De the proper cOnstruc-
ti0n Of the statutes affecting the matter
in question. And in this connection /
beg 10 enclose you copy of letter 20
the Commonwealth s. attorney of Peters,
burg dated May 9. lss' wherein is ex-
pressed more at length my views upon
this subject
Very respectfully
A. j. MONTAGUE.
Attorney General
LETTER TO MIR. LAsS1TER.
Following is the letter to Mr.. Lassiter
referred to by Nj Montague:
Richmond Va. May g. 1S9s.
Chas. r.. Lassiter. Esq, Attorney for |
Commonwealth. Petersburg va.
Dear Sir-I beg t0 acknowledge receipt !
of your letter of the Zl instant. stating |
that YOU are n second lieutenant of Vir- |
ginia volunteers and Commemorative |
Attorney of your city. and requesting my |
opinion as 10 whether the latter office |
would Dee affected hr your enlistment IN |
the army of the United States.
Section l0 of che Code plainly provides |
that g. mm0nwealth's attorney shall |
not hold "any office or post. civil or mill |
tary." under the government Of the |
United States. and that the acceptance |
of such Office vacates ipso facto, the !
State Office
Section lsi Of the Code qualities the |
cODioue category Of disabilities named in |
the aforesaid section. and expressly eX- |
cludes therefr0m militia officers or SOL
diers on account of any recompense they |
may receive from the United States when /
called into actual dutT'
Therefore. If YOU have been "callcd |
mil "a q nd
ls "a part OF the militia Of this State by |
the recent act of Congress and the pro-
clamation 0f the President in pursuance
thereof then the office of Common
wealth's Attorney is not affected thereby. /
But am examination Of tho act Of Con-
gress. the proclamation Of the President |
and the letter OF the Secretary OF War.
the proclamation of the Governor and
the orders Of Adutant-Goneral Male. re-
specung the organization OF additional
troops 20 meet the present eNlgcncies OF
war. show that neither the militia nor the
officers thereof have been called into
actual duty" within the uSovsion Of the
Federal Constitution authorizing the
calling forth the militia The said act
seems 10 relate 90 three branches Of the
army-the regular army volunteer army
and militia So DO seems that the Presi-
dent avais himself 0f the first two. and
that the cali made excludes the militia
as an organization. IL is true that the J
call suggests preference for members
Of the militia. and that when members |
Of the militia shall enlist in the "volun-
teor army as a body. then such body
preserves its original organization. But
! DO not understand this 10 be other than
an inducement and reward for volunteer
enlistment OF trained soldiers.
Therefore the qualifications Of dis
abilities or exception does not obtain un-
der the present call FOR troops. and for
YOU 10 enlist with your company I'm the
service OF the United States in
pursuance Of said call and receive pay
therefor from said government, vacates,
n nv opinlon. the Office OF Common
xealth's Attorney for your city.
Very respectfully,
(signed) A. J. MONTAGUE.
Attorney General.
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