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authorized by the Secretary of War. And the President may prescribe the particular unit or units, as to branch or arm of service, to be maintained in each State, Territory, or the District of Columbia in order to secure a force which, when combined, shall form complete higher tactical units. Sec. 60, id.

See paragraph 1326.)

1325a7. Organization of Staff Corps and Departments to correspond to those of Regular Army.-The National Guard of any State, Territory, or the District of Columbia, shall include such officers and

* Held, that while the Aviation Section of the Signal Corps, provided for in section 16 of the national-defense act, is prescribed for the Regular Army only, and officers and enlisted men of the National Guard are not eligible for detail to fill places therein, and while there is no corresponding Signal Corps or Aviation Section prescribed for the National Guard, there may be Aviation Squadrons, or unit parts thereof, in the National Guard of the several States as component parts of the " complete higher tactical units” contemplated by section 60, idem, and the officers and enlisted men therein will, when duly qualified, be entitled while in the actual service of the United States, or while attending encampments or maneuvers ordered by the Secretary of War, to the same pay and allowances as officers and enlisted men of corresponding grades of the Regular Army receive, including increase of pay while on duty requiring them to participate regularly and frequently in aerial flights.

Held, that the conformity of organization of the National Guard to the Regular Army required by the statute does not relate to the qualifications of officers for appointment or promotion; that the matter of appointment or promotion in the National Guard rests primarily with the governor of the State, subject to the rules prescribed in section 74 of the national-defense act relating to the classes of persons from which National Guard officers shall be appointed, and in section 75 relating to examinations to determine qualifications, and that, therefore, an original appointment to the grade of major may, subject to the restrictions mentioned, be made by the governor without regard to the previous service of the appointee; but that inasmuch as the office of captain in the Medical Corps has no existence independent of the person qualified by a period of service to fill it, appointees to that grade in the Medical Corps of the National Guard must have served as first lieutenants for the period fixed by law. (War Dept. Bull. 34, Sept. 12, 1916.)

Request was made on behalf of medical officers of the National Guard in the service of the United States that the Secretary of War, under his power to authorize general exceptions, permit them to hold the office of captain and to receive the pay of that office, irrespective of their length of service as medical officers of the National Guard.

Held, that the word “exception in section 60 is used in the sense of "exclusion," that it does not include " substitution,” that the statute authorizes modification only by way of exclusion, and that the request could not, therefore, be granted. (War Dept. Bull. 9, Feb. 2, 1917.)

Request was made on behalf of a number of medical officers of the National Guard in Federal service who had been denied the pay of captain, on the ground that they had not had the required number of years of service, that the Secretary of War, under his power given by the foregoing statutes to make "general exceptions," authorize them to be recognized as captains and to receive the pay of that grade.

Held, that the term “ exception,” in section 60, is used in the sense of exclusion, that it does not include substitution, that the Secretary of War couli! only authorize modification by way of exclusion, and that the request could not, therefore, be granted. (War Dept. Bull. 15, Mar. 24, 1917.)

In the case of a company of Engineers, National Guard, in the Federal service, there were four men included as wagoners, and the question was presented in connection with their payment whether wagoners are authorized for separate companies of Engineers, National Guard.

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enlisted men of the Staff Corps and Departments, corresponding to those of the Regular Army, as may be authorized by the Secretary of War. Act of May 12, 1917 (40 Stat. 68).

1325b. Same--State troops in time of peace must conform to prescribed organization.- No State shall maintain troops in time of peace other than as authorized in accordance with the organization prescribed under this Act. Sec. 61, Act of June 3, 1916 (39 Stat. 198).

1325c. Right of States and Territories to use National Guard within their borders in time of peace not limited by Act.-Nothing contained in this Act shall be construed as limiting the rights of States and Territories in the use of the National Guard within their respective borders in time of peace. Id.

1325d. Organization and maintenance of State police or constabulary not forbidden by Act.Nothing contained in this Act shall prevent the organization and maintenance of State police or constabulary. Id.

1325e. Minimum and maximum number of enlisted men for each Senator and Representative.—The number of enlisted men of the National Guard to be organized under this Act within one year from its passage shall be for each State in the proportion of two hundred such men for each Senator and Representative in Congress from such State, and a number to be determined by the President for each Territory and the District of Columbia, and shall be increased each year thereafter in the proportion of not less than fifty per centum until a total peace strength of not less than eight hundred enlisted men for each Senator and Representative in Congress shall have been reached. Sec. 62, id.

1325f. President may fix maximum number in States having but one Representative.-In States which have but one Representative in Congress such increase shall be at the discretion of the President. Id.

Held, that as wagoners do not forin a part of the statutory personnel of a National Guard company, which, by section 60 of the national-defense act, must be the same as that prescribed for the Regular Army, they can not be recognized as a part of the authorized personnel of such companies unless they are, in fact, a part of a regiment or mounted battalion, as required by the statute; that separate companies of Engineers, whether of the National Guard or of the Regular Army, can not include as a part of their personnel enlisted men of the grade of wagoner, but that the duties which would in a company forming part of a regiment or of a mounted battalion. be performed by a wagoner must in a separate company be performed by enlisted men of other grades detailed for that purpose or by wagoners detailed from organizations having enlisted men of that grade. (War Dept. Bull. 67, Nov. 30, 1917.)

Within the terms of the national-defense act officers and enlisted men of the usual staff corps and departments of the several States were not members of the National Guard, but this was changed by the Army appropriation act of May 12, 1917. Such officers and men may now be drafted into the Army of the United States, for the President's power was not exhausted by his proclamation of August 5, 1917.

1325g. Any State or Territory may organize maximum number in less time than Act specifies.—This shall not be construed to prevent any State, Territory, or the District of Columbia from organizing the full number of troops required under this section in less time than is specified in this section, or from maintaining existing organizations if they shall conform to such rules and regulations regarding organization, strength, and armament as the President may prescribe. Id.

1325h. Any State with but one Representative may organize one or more regiments, etc.—Nothing in this Act shall be construed to prevent any State with but one Representative in Congress from organizing one or more regiments of troops, with such auxiliary troops as the President may prescribe; such organizations and members of such organizations to receive all the benefits accruing under this Act under the conditions set forth herein. Id.

(For the last provision of this section see paragraph 1321a, ante.)

1325i. Organization into divisions, brigades, and other tactical units to assist in instructions and training.–For the purpose of maintaining appropriate organization and to assist in instruction and training, the President may assign the National Guard of the several States and Territories and the District of Columbia to divisions, brigades, and other tactical units, and may detail officers either from the National Guard or the Regular Army to command such units. Sec. 64, id.

1325j. Same-Commanding officers of complete units organized within a State or Territory not to be displaced.-Where complete units are organized within a State, Territory, or the District of Columbia the commanding officers thereof shall not be displaced under the provisions of this section. Id., 199.

1325k. Detail of officer of Regular Army as chief of Staff of any division in service of United States.--The President may detail one officer of the Regular Army as chief of staff and one officer of the Regular Army or the National Guard as assistant to the chief of staff of any division of the National Guard in the service of the United States as a National Guard organization. Sec. 65, id.

13251. Same-Detail of regular officer as chief of staff of each tactical division to insure prompt mobilization in time of war, etc.In order to insure the prompt mobilization of the National Guard in time of war or other emergency, the President may, in time of peace, detail an officer of the Regular Army to perform the duties of chief of staff for each fully organized tactical division of the National Guard. Id.

1325m. Location of units and headquarters to be determined by States and Territories.-The States and Territories shall have the

right to determine and fix the location of the units and headquarters of the National Guard within their respective borders. Sec. 68, id. 200.

1325n. Same-Units not to be disbanded or reduced below minimum strength without consent of President.-No organization of the National Guard, members of which shall be entitled to and shall have received compensation under the provisions of this act, shall be disbanded, without the consent of the President, nor, without such conent, shall the commissioned or enlisted strength of any such organization be reduced below the minimum that shall be prescribed therefor by the President. Id.

NATIONAL GUARD RESERVE.

13250. Composition of.–Subject to such rules and regulations as the President may prescribe, a National Guard Reserve shall be organized in each State, Territory, and the District of Columbia, and shall consist of such organizations, officers, and enlisted men as the President may prescribe, or members thereof may be assigned as reserves to an active organization of the National Guard. Sec. 78, id. 202.

(See par. 13441.)

1325p. Same-Pay and allowances of, while engaged in training with active National Guard.Members of said reserve, when engaged in field or coast-defense training with the active National Guard, shall receive the same Federal pay and allowances as enlisted men of like grade on the active list of said guard when likewise engaged. Id.

13259. Same-Appropriation for National Guard purposes not available for.-Except as otherwise specifically provided in this Act, no commissioned or enlisted reservist shall receive any pay or allowances out of any appropriation made by Congress for National Guard purposes. Id.

1325r. Same-Organization of reserve battalions in time of war.When members of the National Guard and the enlisted reserve thereof of any State, Territory, or the District of Columbia shall have been brought into the service of the United States in time of war, there shall be immediately organized, either from such enlisted

* Held, that until an organization thereof is prescribed by the President the National Guard Reserve remains an unorganized force, and that therefore when a soldier passes to that reserve he becomes one of a class of militia which has not been called into the service of the United States, and there is no legal authority for accepting him into the Federal service until his class is called into the service of the United States pursuant to law. (War Dept. Bull. 47, Nov. 16, 1916.)

reserve or from the unorganized militia, in such State, Territory, or District, one reserve battalion for each regiment of Infantry or Cavalry, or each nine batteries of Field Artillery, or each twelve companies of Coast Artillery, brought into the service of the United States, and such reserve battalion shall constitute the fourth battalion of any such regiment or twelve companies of Coast Artillery. Reserve battalions shall consist of four companies of such strength as may be prescribed by the President of the United States. Sec. 79, id.

1325s. Same-Organization of provisional regiments and higher units.- When the members of three or more regiments of the National Guard of any State, Territory, or District shall have been brought into the service of the United States, the reserve battalions of such regiments may be organized into provisional regiments and higher units. Id.

1325t. Same-Drafting unorganized militia into service of United States to maintain reserve battalions at proper strength.-If for any reason there shall not be enough voluntary enlistments to keep the reserve battalions at the prescribed strength, a sufficient number of the unorganized militia shall be drafted into the service of the United States to maintain each of such battalions at the proper strength. Id.

1325u. Same-Vacancies in organizations in service to be filled from reserve battalions, etc.-As vacancies occur from death or other causes in any organization in the service of the United States and composed of men taken from the National Guard, men shall be transferred from the reserve battalions to the organizations in the field so that such organizations may be maintained at war strength. Officers for the reserve battalions provided for herein shall be drafted from the National Guard Reserve or Coast Artillery companies of the National Guard or the Officers' Reserve Corps, such officers to be taken, if practicable, from the States, respectively, in which the battalions shall be organized. Officers and noncommissioned officers returned to their home stations because of their inability to perform active field service may be assigned to reserve battalions for duty, and all soldiers invalided home shall be assigned to and carried on the rolls of reserve battalions until returned to duty or until discharged." Id. 203.

* It being proposed to discharge National Guard reservists with a view to their immediate reenlistment in regiments of the National Guard; Held, that, with. out considering how far the President legally can go in authorizing wholesale discharges froin the National Guard Reserve, it is enough to say that the national-defense act contemplates a well-defined function for the National Guard Reserve and its continuance for the performance of that function; that it would defeat the purpose of the law to authorize discharges on the considerations mentioned ; and that in the absence of any showing of convenience to the Goverment such discharges ought not to be authorized. (War Dept. Bull. 26, May 7, 1917.)

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