New Britain herald., 1916-10-18
Liable to Federal Service Under Dick Law Even Though Oath
 Is Not Taken
MASSACHUSETTS COURT
 RULING FAV0RS GOVT.
Ma ajority Judges Hold Military Au- thorities Must Have Power to Act Even Though Individuals in Na- tionaI Guard DO Not Voluntarily Offer Services None AbSOlved From Duty at Call of President.
rom Duty at Call of President.

From DuIy at ostll Ol Iret5lucHt.
 Boston, Oct. 1s.-The United States circuit court of appeals ruled today that members of the state militia were still in service for federal mili- tary purposes notwithstanding their failure to take the oath under the na- tional defense act of last June. This decision reverses a recent order or the federal district court. The case was considered a test of the appl1ca- ton of the new law, upon which d1s- position of similar cases in other states will depend.
 The courts opinion, from which Judge Putnam dissented, vacated decree of the lower court under which Alexander M Emerson and Alfred r. Lowell, cavalrymen, were released from military custody Directions were given in each instance that the trooper be returned to the military authorities from whom he was taken The cases of Emerson. who refused tc take the new oath, and of LoWell, who asserted that he had subscribed to it under duress and threat, were considered by the court as one, the same finding being returned in each.
 The general question involved, ac- cording to the opinion in which Judges Bingham and Aldrich joined as the majority, is whether the na- tional defense act of vast June re- peals provisions of the Dick law au thorizing the president to use the or eanized state militia to help repel in vasion and suppress instruction; whether it is left altogether at the option of members of the state militia to sign a new enlistment contract, and whether in the event of a refusal to sign, the militiaman is mustered out.
 Authorities Must Have Power.
 "It is quite likely" the court added, that if the question were to be de- termined under rules of strict con- struction, the conclusion reached by the district court would be quite justi- fiab1e." The higher court held, how ever, that with the vital question whether the military power of the government shall be potential and ef- fective in the hands of the authori- ties or is to be contingent upon the option of constituent members of the military organizations at issue, a lib- eral construction was needed.
 "The act of 1916, being one for national deIenCe, Ltle OplnlOn SdlQ and one for more effectual provisions to that end and congress upon it's passage, being under the weight of well-known existing conditions of for eign menace and in the presence of a recent invasion by an organized military body of armed men from a foreign country, the view is an impos sible one that congress intended to 1>N xx1bo any substantial part of the organized military force of the states, to march Or not, at will, in furtherance of the duty which they had previously as- sumed."
 The courts interpretation of the statute was that it keeps out of the National Guard, as distinctively standardized, such members of the militia as do not voluntarily engage for the higher obligations"
 The act, it declared, was not in tended to operate to the end that members of the organized militia who did not see fit to enlist voluntar- fly for a longer term and assume the broader obligations which might re- quire them to go beyond the national bounds, should be absolved from the duty of responding to the emergency call of the president.
 'It results, therefore, said the court, that when the petitioner (Emerson) elected not to enlist for the longer term and the broader serv- ice, that he was still in the service for the federal purposes contemplated at the time he enlisted in the Massa- chusetts militia and took the oath to obey all laws and regulations for the government of the volunteer militia of the commonwealth to obey the or der of all officers, and support the constitution of the United States"