Kansas City journal. [volume] (Kansas City, Mo.) 1897-1928, 1899-01-01
ARE STILL GUARDSMEN
STATUS OF MEMBERS OF THE THIRD
REGIMENT.
Judge Advocate O'Grndy Renders an
Exhaustive Opinion ON the sub
jcct Mt the Rcquest of
Colonel Gross.

John O'Grady, judge advocate OF me
Third regiment. has prepared a careful
opinion on the much mooted question as
TO the legal status OF the members of the
regiment. He holds that they are still
members OF the national guard and that
the regiment does not have 10 he reorganiz-
ed becau-. il enlisted in the service of the
federal government during the war with
Spain. The opinion i a. follows:
"You ask me what is the present status
of the members Of the Third regiment OF
the national guard of Missouri. who We're
mustered into the United States sarvice
and afterwards discharged. That II, II
hey are still in the service Of the state OF
missouri, and part oI the national guard
thereof.
Il have given this subject a very careful
and exhaustive examination. and ! am sat
listed that the officers and men who be
longed to the national guard Of this state
at the time they Were mustered INTO ih"
service Of the volunteers of the I mo
States are Still meushrrS OF the national
guard, save ami except as 10 th"ss ON
GERS who have resigned. or the men who's"
time has expired by limitation.
passed 10y our last Legislature, l. Suil IN
force. There has been nothing TO suspend
or abrcgate the provisions 81 that law.
other law passed by the legislature Of this
state: when il became a law II embraced
and covered the entire national guard OF
This state. That Is I" say. the oific-rS and
men who then constituted the national
guard OF the stale OF AliSSDuTl btFalHt sun
jet TO its terms, and until the officers and
men are discharged. in accordance with
The provisions of that law. they are sub
ject to its provisions, just the same as II
no war with Spain had been declared since
that law was enacted.
That law provides that all able-bodied
male inhabitants of this state, between the
ages of Is and -, who are citizens Of the
United States, or who have declared their
intention to become citizens, shall he liable
TO military duty in this state; and pro-
vides that in time of peace the national
guard of Missouri shall not number more
than 300 men, inclusive of state cadets.
IL VIII not he seriously Contcnded that
when the law took effect the national
guard OF this state exceeded 3.pH men.
There are only three ways provided for in
the law by which the commission of an
officer holding "A position III the national
guard can be vacated.
Section q provides that When an Of
icer holding a commission under the mill
tary law of this state Is elected or ip-
pointed TO another office, in the military
forces thereof. and accepts the same, such
accertation shall vacate the office pravi-
.ously held 1t will be noted that the Ian
guage of the act Is. elected or appointed
to another office iE the military forces
hereof meaning the military forces of the
national guard of this state. II does not
lay in the volunteer forces of the United
itates.' but confines its provision for the
'acation of the commission To the accep-
Rnce of another office in the national
uard of this state.
Section "a provides. Any commissioned
ficer of the national guard of Missouri,
hay be discharged by order of the COM
lander-in-chief either upon: First, tender
{ resignation: second. disarmament of The
rganization OF which he is Il member;
lird. address of both houses OF the legis-
lture; fourth. conviction of felony: and,
fth. sentence of cOurt-martial.' II is
Ardly necessary to state that none of the
5ove enumerated causes apply To any Of
he officers Of the Third regiment of the
.isSouri guard.
Section 81 provides. An officer absent
liz himself for a period of three months
tDm the meetings drills and narl1gS nf
is regiment without permission shall be
Considered a deserter and his name strlck-
he above section uses the words with
out permission" in order 10 make this sec
lion apply to any officer of the national
guard.
That section can have no application
because. on May >, 1855, special order No.
: q was issued by General F. NJ. Bell. ad-
1utant general OF the state. by
of the governor, then as now commander
of the governor, then as now commander
reads as follows: Permission Is hereby
granted TO such officers and men of the
national guard of Missouri. as desire TO
volunteer in the service of the United
States. under a call of the president dat
ed April ., 1885, until such service Is
completed Meaning by implication to
pleted they thereupon shall be a part Of
the national guard of this state. In other
words. the commander-in-chIef granted a
furlouGh 10 the members of the national
guard Tor a limited period. and there Vas
no pretense that such permission should
terminate the tenure of the officers or men
OF the national guard of this state. Even
II such had been the intention. such an
order would be nugatory for that pur-
pose; because the law provides how the
oificers and men of the national guard
could he discharged from the service.
Section % Of the act provides, All en-
listments in the national guard of Mis-
souri, shall be for the term of three
years
Section 81 provides That every person
Gn apTiSfinU uI.I1 ..g.y O.. ..,r.- = -.
licate, the form of which iS given in said
section
Section ca provides That an enlisted
man may be discharged before tho expi-
ration of his term Of service. by the com
mander.in-chiei for the following rea-
sons: First. his own application. approved
by his company and superior commanders;
second, such change Of residence as to
prevent the proper performance OF duty;
third. disability as shown by certificate OF
a medical officer. fourth. proof that the
interests OF the service required sIcn dis
charge: hfth, upon acceptance Of promo
tcn 10y commission: sixth. upon cCnvic-
ton Of felony; ard, seventh, on sentence
of Ourt-martiaI.'
TT foregoing provisions show the terms
and contract of the enlisted member of
the national guard. section ~ provides
how the enlisted men may be discharged;
those provisions OF the law are as bind
ing upon every citizen OF the state as any
other provision to be found in our laws.
Section 1 of article II, of the coTstitu-
ton of the state Of Missouri. provides. y,
person holding an office Of profit under the
tinted States. shall. during his continuance
in such office. hold any office of profit il
this state
The question arises whether that
provision Of the constitution may not for,
felt the office OF an officer of the natioul'
guard vixen he is mustered into the voluu
tcer service OF the United States. Th'
question turns. however, upon the propo
sition whether the Office Of an officer 81
the national guard Is an office of profit IN,
Ger the law of this state. There is no sal
airy or OTHER emolumcnt attached to the of
fec of an officer of the national guard. II,
receives no compensation whatever for hi
services. None H. allowed by law.
section q % the same act. however
provides. That when the national guard /
called into active service. the officers shall
receive tn" same" pay and allowances a
are allowed officers nf the armies of til,