Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-09-21
Attorney General Montague Says
Officers and Men Should be Paid
the LAw AGAINST 1T
the Mayor Of Portsmouth Exceeded
itis Authority whom Ho Oraerea
tho Bn,trry on Duty AT ocean view
ncyrnd Ez,s n-ThoI.cS-
'si"sure alone Can Order Pay mons
OF This Claim.
Especial to virginian-PI lot.)

Richmond, Va, Sept. 20.-Attorney-
General Montague has rendered the
foliowing opinion in regard to the claim
OF the Crimes Battery, OF Portsmouth,
Tor services rendered as patrols during
the yellowfever scare:
Col. Morton NIarye Auditor Puhlic
Accounts:
SIT have been unable 10 consider
earlier your recent reference OF the
account of Battery C, LIST Battalion
artillery, in the sum OF s1.3G4.S6 and
your request for my opinion as to
your authority to pay the same.
The order calling forth the Battery
OF Artillery is issued by the Mayor Of
Portsmouth 10 the commandant OF the
battery, and commands the same ito
parade at Ocean View, Va, on the 1st
day of August, 1899, then and there to
cording to law Thus you will OBJ
serve that this order commands the
battery to aid the civil authorities.
not within the territorial Jurisdiction of
portsmouth, but some nine miles dis
tant therefrom, at Ocean View, in the
county OF Norfolk. It further appears
that in pursuance OF this order the
battery did very efficiently aid the quar-
antine patrol at Ocean View In pre-
venting the landing of persons from the
infected yellow fever districts in and
around the National Soldiers Home,
near HAMPTON.
Whether this is the class Of civil au-
thoritics competent 10 receive the mill
tary aid provided for in the statute is.
from my point OF view, needless to
consider; for the larger question as to
the authority of the Mayor to issue any
order at all RECURRING the aid Of the
military at place beyond his terri
torial jurisdiction must first be dis
posed Of
ENCEEDED. THE AUTHORITY
section 36S of the Code provides, in
certain cases. that sit shall be lawful
fcr the sheriff of any county, or the
Mayor OF any city" to call upon the
commandment of any division. brigade,
regiment, or company" and it shall be
the duty Of such officer upon whom
such call Is made, to order out in aid
of the civil authorities. the military
force, or any part thereof under his
command" What civil authorities are
mere meant? Manifesuy the civil au-
thorlttes of the county of such sheriff
or or the city Of such mayor
The form of the summons from the
Sheriff or mayor to the commandment.
which is prescribed in said section, in
terms requires that the requested aid
must be given within the county or city
OF such sheriff or mayor Besides, the
Mayor OF Portsmouth is functus onicio
beyond the territorial Jurisdiction of his
city. So likewise are the civil authori-
ties Of that city without law or author
ity to perform quarantine patrol at
Ocean View, a place clearly beyond the
territorial Jurisdiction of their city.
NO CIVIL AUTHORITIES AIDED.
Such so-called civil authorities had no
legal existence at Ocean View, and
therefore there were no civil authors
ties to be aided by the military. The
sheriff OF Norfolk county, or his depu-
ty, were alone authorized to Issue an
order for such military aid within his
county, and neither of them issued such
an order or united in the order Of the
Mayor OF Portsmouth.
From these considerations It seems
plain that neither the sheriff of a coun-
ty nor the mayor of a city has author
ity under our law to order out troops
to perform service in any other county
or city within the Commonwealth, and,
therefore, the order in question and the
services Hereunder performed are
wholly without lawful warrant. Con-
sequently, in that both the order and
services are illegal, I am of opinion that
there are no present funds in the Trea-
sury available to pay the account in
question.
AS to the merits OF the claim I hava
no official concern. That these officers
and men should be paid for their SER
vices, performed in good faith, I take
1t no one will dispute. But this is the
province Of the Legislature. have
only to construe the law, and as I un-
derstand it the disbursement of public
moneys must be in strict conformity
to public law.
Very respectfully.
Il. a. J.. MONTAGUE,
Attorney General,