Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1899-11-17
TEXT OF OPINION.
Opinion of Attorney General Cowan
With Reference to the State
Militia.

In view of the interest that exists
through the state with regard to the
reformation of the state militia, the
opinion of Attorney General Cowan re-
garding the status of the militia in the
war with Spain, upon which the reorgan-
ization was based, will serve to explain
the order that has been issued for the
government of officers and men. The
opinion is addressed to the governor as
follows:
| have the honor to acknowledge re-
ceipt of your communication of the 9th
inst. containing the following statement
of facts relative to the North Dakota
national guard:
"At the time of the enlistment of the
volunteers from this state in the war
with Spain upon the call of the presi-
dent there were some legal points
brought up in connection with the au-
thority of the federal government to or
der the different state military organiza-
lions into the United States service, and
as to the legal status of such OrganiZa-
lions upon their return to their respect
I've states after having volunteered in a
body. 1t was decided by the attorney
general of the United States that the
national guards of the different states
could not be ordered into the service of
the United States by the president out
side of their respective states, but the
secretary of war recommended that
where such organizations volunteered
for service upon the call of the president
they be given the preference. He also
recommended that officers of the national
guard retain their rank in the volunteer
service. The quota of our state included
eight of our militia companies who vol
untccrcd at the call of the president, as
Stunning their position in the First North
Dakota volunteers as held by them in
the North Dakota national guard
Upon the foregoing statement you
make two inquiries, namely:
"First-Does entering the volunteer
service of the United States by the mem
bers of the North Dakota national guard
(both enlisted men and %otticers) annul
their enlistment or commission in the
state militia?:"
"Sccond-If in your opinion the COM
missions of officers who entered the vol
unteer service of the United States were
not annulled by so doing. Would all
the officers who resign from the U. S.
volunteer service still retain their com
missions in the North Dakota national
guard?"
The subject of your inquiry is one for
state and not national legislation. This
is SO from the very nature of the case as
the United States has no interest in the
militiaman when he is mustered out of
ther than to furnish financial aid and
rrncori1a n,nla Nf lri11 Tho r,i1;tio 1o ,,,c
of the several states, while alike in GER
tain general features, are not of a uni
form character and are not based upon
any approved model, and for this reason
court decisions of other states are not as
valuable as they otherwise would be.
The statute law of North Dakota does
not declare the status of a member of a
national guard after leaving the federal
service.
However, it is very generally conceded
and | find few'cases to the contrary, that
a regiment of the state militia, when
mustered into the service of the United
States, does not cease to be a part of the
militia of the state; that the state still
retains the power, while in the service of
the United States, to appoint the officers
and fill all vacancies.
They are still the militia of the state.
This is so Notwithstanding, while en-
ployed in the service of the United
States, they are subject to the rules and
discipline prescribed for the government
of the regular army of the United States.
1t has also been held that mastering a
militia regiment into the United States
service does not change it's character.
1t only assumes new duties and respon-
sibi]ities. At the end of the time it is
ordered out, it returns and occupies pre-
cisely the position it did when it started.
Section 1850 of the Revised Codes
makes the governor the co~mmander-in-
chief of the militia of the state. The
militia law provides that members of the
national guard may absent themselves
from duty to the state, with leave.
Upon the call of the president of the
United States in April, 1898, for volun-
teers, the governor of North Dakota re-
quested the officers and men constitu-
ting the national guard to volunteer.
The request of the governor in this con.
nection should be construed as an order
granting an indefinite leave of absence
to the members of the national guard
hat volunteered in the us service and
the time of such service in the u. S
army should be allowed in computing
length of service in the national guard.
From this view of the situation and
the law it would necessarily follow that
q resignation of an officer of the North
Dakota national guard from the U. S
volunteer service would in no sense con
stitute a resignation from the North Da
kota national guard.