How notices are to be served; return. § 32. All notices for any election shall be served on the persons entitled to vote thereat in the same manner as non-commissioned officers, musicians and privates are warned to attend a parade, and shall specify the time and place of holding such election. The officer issuing the notice shall designate some proper person or persons to serve the same or to direct such service; and the person so designated shall make a return of the persons notified, and of the manner of the service. The return, if made by a commissioned officer, shall be authenticated by his certificate on honor; if by a non-commissioned officer, by the oath of the person making such service. The oath may be administered by any magistrate or by the officer issuing the notice.

Election, how conducted; when notice waived; when commander-in-chief to fill vacancy. § 33. The officer causing the notice to be given for any of the aforesaid elections shall attend or designate some other proper officer to attend at the time and place of holding such elections; he shall organize the meeting and preside thereat, and may, for sufficient cause, adjourn the same from time to time; and in the event of three such meetings having been held resulting in no choice, the vacancy may be filled by the commander-in-chief. If the officer causing the notices to be given, or the proper officer designated by him, shall not attend the meeting for the election, then the officer of the highest rank present shall preside at such meeting. And the officer issuing such notices shall cause the proper evidence of service of such notices on all the electors to be delivered to the presiding officer. And at meetings for the election of troop, battery or company officers, the roll, carefully revised, shall in like manner be delivered with such evidence. And if it shall happen at any election for commissioned officers that legal notice has not been given to all the persons entitled to vote thereat, the presiding officer shall adjourn the meeting and cause such notice to be given; but the presence of a person entitled to vote at any election shall be deemed a waiver of his right to take exception to the want of legal notice.

Polls, how long to be open; canvass of votes; acceptance of office. § 34. The presiding officer at any election for commissioned officers shall keep the polls open at least one hour after the time appointed for holding the same, unless all entitled to vote thereat shall have deposited their ballots prior to the expiration of that hour. He shall then publicly canvass the votes received from the electors for the officers to be elected, and shall forthwith declare the result, and give notice to every person elected of his election. If such person shall not, within ten days after being notified of his election, signify to such officer his acceptance, he shall be considered as declining the office to which he shall have been chosen, and an election shall be held for a new choice.

Proceedings of election, how certified. § 35. When a person elected shall have signified his acceptance, the record of proceedings of the election shall be forwarded by the officer who presided at the election to general headquarters, in such manner as the commander-in-chief may direct. [Thus amended by L. 1888, ch. 332, superseding L. 1885, ch. 310.]

Appeal to commander-in-chief. § 36. Every person thinking himself aggrieved by the proceedings at any election for a commissioned officer may appeal to the commander-in-chief, who shall determine such appeal, and in case it shall be necessary, order a new election. The commander-in-chief may make such rules and regulations relative to appeals as he shall deem necessary and proper to give full effect to the provisions of the Constitution and of this act. [Thus amended by L. 1886, ch. 412.]

Oath of office; neglect to take the same. § 37. Every officer duly commissioned shall within ten days after his commission shall be tendered to him, or within ten days after he shall be personally notified that the same is held in readiness for him by any superior officer, take and subscribe the oath prescribed in the Constitution of of the state; and in case of neglect or refusal to take such oath within the time mentioned, he shall be deemed to have resigned said office, and a new election

shall be forthwith ordered to fill his place. Such oath shall be taken and subscribed before a judge of some court of record in this state, county clerk, commissioner to take affidavits, justice of the peace, or some general or field officer who has taken it himself, and who is hereby authorized to administer the same.

Officers for provisional organizations, how detailed, etc. § 38. The commander-in-chief may, at his discretion, detail, or appoint and commission, the field and staff officers necessary to complete the organization of such provisional regiments and battalions as may be organized under section one hundred and forty-seven of this act, and he may in like manner fill the vacancies which may occur in such offices from time to time. [Substituted for the original by L. 1888, ch. 332.]

Challenge; oath; number of votes necessary to elect. § 39. If any person offering to vote at any election shall be challenged as unqualified by any person entitled to vote thereat, the presiding officer shall declare to the person so challenged the qualifications of an elector, and if he shall state himself to be duly qualified, and the challenge shall not be withdrawn, the presiding officer shall examine him under oath and determine as to his qualifications as such elector. A majority of the votes. of all persons present voting at an election shall be necessary to a choice. [Thus amended by L. 1888, ch. 322.]

ARTICLE VI.

ENLISTMENT AND TRANSFER.

Who may and who may not enlist; term of service; re-enlistment. § 40. Able-bodied men of good character, of eighteen years of age and upwards, who can read and write, may be enlisted in the national guard in the first instance for a term not less than five nor more than seven years, and on the expiration of that term, they may be re-enlisted, either immediately or at any time thereafter, for terms of one or more years, at their option; but no person above the age of forty-five years shall be enlisted or re-enlisted except by permission of the commandant of the brigade or division to which the organization is attached; nor any person under the age of twenty-one years, without the consent of his parent or guardian; provided, however, that enlistments as musicians between the ages of sixteen and twenty-one years may be made with the consent of parents or guardians. Every enlisted man shall continue to be held to duty, and shall retain rank and be eligible to promotion after the expiration of his term of enlistment, or re-enlistment, until he is actually discharged. [Thus amended by L. 1887, ch. 649.]

100 N. Y., 20.

Transfer, how made. § 41. No enlisted man shall leave one organization to join another, unless duly transferred. On their own application, enlisted men -noncommissioned officers being first reduced to the ranks - may be transferred from one company to another in the same regiment or battalion by the commanding officer of the regiment or battalion, from one regiment or battalion to another in the same brigade by the brigade commander, from one brigade to another in the same division by the division commander, and from one division to another by the commander-in-chief.

Enlistment papers, recruits to sign; oath of allegiance; approval. § 42. Every person recruited for the national guard shall sign an enlistment paper, which shall be forwarded to the adjutant-general, of such form as may be prescribed by the commander-in-chief, which shall contain an oath of allegiance to the state and to the United States, and a résumé of the duties to be performed. Said oath of allegiance shall be taken at the head-quarters of the organization before a field officer or the commander of the troop, battery, company or battalion. No person shall be considered as enlisted in the national guard until his enlistment paper has been approved by the commanding officer of the organization to which the troop, battery or company is attached. [Thus amended by L. 1884, ch. 323.]

ARTICLE VII.

DISCHARGES OF COMMISSIONED OFFICERS AND ENLISTED MEN.

Full and honorable discharge of commissioned officers; appointments and re-commissions by commander-in-chief. § 43. Commissioned officers of the national guard, who shall have served as such therein for five years, or for the full term of their original enlistment, if promoted, shall, upon the acceptance of their resignations, be granted a full and honorable discharge from service in the state forces, except in case of insurrection or invasion. They may also be discharged upon tender of their resignation prior to the expiration of their term of service, or for physical disability, but they shall not thereafter be exempt from jury duty. They may also be discharged on sentence of court-martial or upon recommendation of a state examining board, or for failure to appear before the same when ordered, or for absence without leave for a period of six months or more. Staff officers may be discharged or rendered supernumerary upon the recommendation of their commanding officer, approved by the respective chief of the department. All officers discharged from the service of the state shall receive a certificate of discharge in such form as the commander-in-chief shall direct. Whenever the commandant of any brigade, regiment, battalion, battery, troop or company shall have been honorably discharged, and no person shall have been chosen and commissioned in his place, or in case a person shall have been chosen and failed to qualify, the commander-in-chief may appoint, whenever he deems such an emergency has arisen as requires it, and re-commission such honorably discharged officer in the same rank he formerly held for the purpose of taking command of such brigade, regiment, battalion, battery, troop or company, during such emergency temporarily or for a term not to exceed one year. [Thus amended by L. 1886, ch. 412.]

Supernumerary officers; their privileges, duties, rank, etc. §44. Commissioned officers rendered supernumerary by the consolidation, alteration or disbandment of any organizations, or in any other lawful manner, shall be exempt from military duty, except in case of war, insurrection or invasion, provided they shall, in the month of November following the date of being rendered supernumerary, and in the month of November of each year thereafter, report themselves as such to the adjutant-general. The commander-in-chief may assign supernumerary officers who have so reported to the adjutant-general, to active duty, and when on such active duty, they shall enjoy all the privileges, emoluments and immunities, to which commissioned officers of the same grade in the national guard on active duty are entitled, provided, however, that they shall not be entitled to vote at elections at which elected officers of the same grade are entitled to vote. They shall take rank for the purposes of such assignment from the date thereof, and when elected or appointed to an office of the same grade in the national guard, they shall take rank from the date of such election or appointment. [Thus amended by L. 1888, ch. 332, superseding L. 1884, ch. 323.]

Resignation or removal of officer. § 45. No officer shall be permitted to resign his commission who shall be under arrest, or returned to a court-martial, for any deficiency or delinquency; and no resignation shall be accepted unless the officer tendering the same shall furnish to the adjutant-general a certificate from the chief of ordnance that he has delivered all books and other property of the state in his possession to the officer authorized to receive the same, and that his accounts for money or public property are correct, and that he is not indebted to the state. No commissioned officer can be removed from office unless by the senate on recommendation of the governor, stating the grounds on which such removal is recommended, or by the decision of a court-martial or an examining board, or pursuant to law.

ever

Examination and discharge of officer. § 46. The commander-in-chief may, whenhe may deem that the good of the service requires, order any officer of the national guard before a board of examination, to consist of not less than three nor more than five general and field officers, which is hereby invested with the powers:

of courts of inquiry and courts-martial, and it shall be the duty of such board to examine into the moral character or capacity, or general fitness for the service of such commissioned officers. If the decision of said board be unfavorable to such officers, and be approved by the commander-in-chief, they shall be discharged from the service; provided, that no officer whose rank or promotion would in any way be affected by the decision of said board, in any case that may come before it, shall participate in the examination or decision of the board in such case.

When and how officer may be placed on retired list. § 47. Any commissioned officer who has become or shall hereafter become disabled, or unfit, and incapable of performing the duties of his office, and any commissioned officer who shall have served in the same grade for the continuous period of ten years, may be placed on the retired list, and withdrawn from active service and command, by order of the commander-in-chief; but such order shall be subject to the provisions of the next succeeding section. [Thus amended by L. 1888, ch. 332.]

Retiring board, of whom to consist; its duties and powers; oaths of members, etc. § 48. In order to carry out the provisions of the last preceding section, the commanderin-chief shall appoint a board of not less than three nor more than five commissioned officers, one of whom shall be of the medical staff, whose duty it shall be to determine the facts as to the nature and occasion of the incapacity of such officers as appear disabled and unfit, from any cause to perform military service, and whose cases shall be referred to it by the commander-in-chief. The said board is hereby invested with the powers of courts of inquiry and courts-martial, and, whenever it finds an officer incapacitated for active service, shall report such fact to the commander-in-chief, and if he approves such judgment, the disabled officer shall thereupon be placed upon the retired list, according to the provisions of this act; provided always, that the members of the board shall in every case be sworn to an honest and impartial performance of their duties according to the provisions relating thereto in section one hundred and five of this act, and that no officer shall be placed upon the retired list by the action of said board without having had a fair and full hearing before the board, if upon due notice he shall demand it. Provided, however, that it shall not be necessary to refer any case for the action of such board, arising under section forty-seven of this act, unless the officers designated by the commander-in-chief to be placed on the retired list, shall, within twenty days after being notified that they will be so retired, serve on the adjutant-general a notice in writing, that they demand a hearing and examination before such board; and provided further, that no officer, whose rank or promotion would be affected by the decision of such board in any case that may come before it, shall participate in the examination or decision of the board in such case. [Thus amended by L. 1888, ch. 332.]

Honorable discharges of enlisted men; hearing in certain cases; decision thereon. § 49. Whenever any enlisted man of the national guard shall have performed service therein for the term of enlistment, or for the term for which he may have re-enlisted, properly uniformed, armed and equipped, according to the provisions of this act, and shall have attended an average of sixty per centum of the drills and parades of his organization in each year, or in case of non-commissioned staff officers, company quartermaster, and veterinary sergeants and musicians, shall have performed his proper duties regularly, unless excused by proper authority, the commander of the division, brigade, regiment or battalion to which he belongs, or in case of a troop, battery or company not a part of a regiment or battalion, the commander of the brigade or division to which it is attached shall, upon the certificate of his troop, battery or company commander to that effect, and that he has turned in to the proper officer all state, regimental and company property then in his possession, grant him a full and honorable discharge from further service in the state forces, except in time of insurrection or invasion. Discharges for physical disability shall be granted upon the certificate of the regimental or battalion surgeon, and in case of a troop, battery or of a company not a part of a regiment or battalion, of the assistant surgeon of such troop, battery or company, or of the sur

geon of the division or brigade to which such troop, battery or company is attached. The commander-in-chief or the commander of a division may, for sufficient reason, and in his discretion, discharge enlisted men under his command, with or without their consent, at any time, upon the recommendation of the commander of the troop, battery or company, with the approval of the commander of the regiment or battalion and of the brigade to which they belong; but no enlisted man shall be honorably discharged from service unless he produces the certificate of his immediate commanding officer that he has turned over, or satisfactorily accounted for, all property issued to him. Provided, however, that no such discharge shall be granted by the commander-in-chief or any commander of a division before the expiration of the term of the enlisted man, without his consent, until after he has had ten days' notice of the grounds for the recommendation of his discharge, and ten days' opportunity to be heard and for explanation and defense before the commander-in-chief or the division commander. And if, after such notice and such opportunity and such hearing, explanation and defense, if any, the commanderin-chief or the division commander shall decide to discharge the enlisted man, then the order so discharging him shall state the grounds upon which the commanderin-chief or the division commander has decided that such discharge should be had. [Thus amended by L. 1886, ch. 412.]

Non-commissioned officers may be reduced to ranks, etc. § 50. Non-commissioned officers, if enlisted men, may be reduced to the ranks by the commander of the organization to which they belong, or by sentence of a court-martial; hospital stewards, band leaders, trumpeters, drum-majors and veterinary sergeants from civil life may be summarily discharged; enlisted men may be dropped by order of the regimental, brigade or division commander upon removal of residence from the state, or to such a distance from the armory of the company to which they belong as to render it impracticable to properly discharge military duty, upon conviction of felony in a civil court, or upon expulsion from their company in accordance with legal by-laws; but any enlisted man dropped on account of removal may be taken up at any time within three years after such removal, should he return to the division district, by the company commandant, with the approval of the regimental, brigade or division commander, and shall be held to service until he has completed his term of enlistment, provided that the time absent from duty shall not be allowed as a part of his term of service. [Thus amended by L. 1884, ch. 323.]

ARTICLE VIII.

OF ARMS, UNIFORMS AND EQUIPMENTS.

State to provide uniforms, arms, etc. § 51. Every organization shall be provided, at the expense of the state, with such uniforms, arms, equipments, colors, musical instruments, books of instruction and of record, blanks, camp and garrison equipage and military supplies as may be necessary for the proper performance of the duty required by this act. But in time of peace no uniforms, arms, equipments, or military supplies shall be issued to or for the use of any organization, unless the said organization shall have at least the minimum number of enlisted men prescribed by law. [Thus amended by L. 1888, ch. 332.]

Commissioned officers' uniforms, arms, etc.; allowance therefor. § 52. Commissioned officers shall provide themselves with the uniforms, arms and equipments lawfully prescribed or approved, and there shall be allowed to aid them in procuring the same, at the time of their original election or appointment as commissioned officers: To mounted officers, fifty dollars, and to all other officers, thirty dollars.

Pattern of service uniform; how modified; former fatigue uniform. § 53. The service uniform shall be of the pattern selected by the commission appointed for that purpose by the commander-in-chief and adopted and prescribed by him in general orders number six, dated general head-quarters, state of New York, adjutantgeneral's office, Albany, February twenty-first, eighteen hundred and eighty-two,