Evening star., 1915-05-20
Law Makes Him Ineligible to
Command District Ma
tionaI Guard.
PAY AS RETIRED OFFICER
STANDS IN THE WAY
Acting Secretary Breckinridge Of
War Department Approves Gen.
Crowder's Opinion.

Acting Secretary Breckinridge of the
War Department has approved an opin-
ion rendered by Gen. Crowder. judge
advocate general of the army, that Maj
John A. Dapray. u. s. A, retired, is
Ineligible for appointment to the office
of commanding general of the District OF
Columbia militia That office will be-
come vacant on the transfer of Brig
Gen. George Fl. Harries to the retired
list. with the rank of major general, on
his own application. approved by the
War Department
In making application for the pros
pective vacancy Maj. Dapray, who is
on duty at the Maryland Agricultural
College as professor of military science
and tactics, said he is now. and has
been since early boyhood, resident OF
the city of Washington.
The judge advocate general premises
his opinion on the subject of his eligi-
bility by stating that Maj. Dapray does
not apply for assignment to active duty
In the army. but for appointment to an
office for which citizens generally are
eligible. For that reason the act OF
April 23, 1904, providing for the as
signment of officers on the retired list
to active duty, he says, has no appi-
cation in his case.
Retired officers" he adds, "are gener-
|aily eligible to hold public office, the
|only statute which excepts them as a
|ciass being section 1928 of the Revised
Statutes, which forbids their holding
consular or diplomatic Offices. Section
|l222 of the Revised Statutes, prohibit
ling the holding of civil office, expressly
|applies to officers of the active list only.
off yvpo
the National Guard of state has been
held by this Office repeatedly, and a
humber of them hold such Offices
Maj. Dapray Ineligible.
In the opinion of the judge advocate
general. Maj. Dapray is ineligible for
1.-THE District militia command because
|of the provisions of the act of July 81,
|1S94. In that act ii is provided that
|"No person who holds an Office, the
SALARY or compensation attached to
(which amounts to the sum of $500.
shall be appointed to or hold any other
|office to which compensation is attach
led. unless specially heretofore or here
after specially authorized thereto by
Paw, but this shall not apply to retired
officers of the army or navy whenever
|they may be elected to public office or
whenever the President shall appoint
h hem to office by and with the advice
|and consent of the Senate
Appointment of commanding gen
|eral of the militia of the District of
columbia is authorized by section of
5an act of March I, 1889, as follows:
There shall be appointed and COM
Questioned by the President of the
United States a commanding general
of the militia of the District of Column
Ibia. with rank of brigader general.
fsho shall hold Office until his successor
s appointed and qualified. but may be
removed at any time by the President
After citing these legal provisions
he judge advocate general says:
Maj. Dapray receives a salary of
$4,000 per annum as an officer of the
retired list. Appointment as command
ing general of the District of Columbia
militia is made by the President with
put the advice and consent of the Sem
.ate.
Although no annual salary is at
tached to the Office of commanding gen.
|eral of the District of Columbia militia,
section 10 of the militia law of Janu
|ary q. 1903, as amended by the act of
tfay 81, 1908, authorizes participation
! pf the organized militia in joint en-
3.ampments and provides that the mem
bcrs of the organized militia when so
mployed shall receive the same emolu-
&nents as are provided by law for the
pfficers of the regular army of like
sradeS.