by Congress, the governor alone may appoint all the officers referred to in this and the preceding section and assign them to their respective townships, districts, and counties; and the officers so appointed shall hold their offices until the end of the first session of the legislative assembly. R. S. 1857. See sec. 1, act of May 27, 1910 (36 Stat. 443), 2991, post. 2539. General officers of the National Guard of Territories.-Justices of the peace and all general officers of the militia in the several Territories shall be elected by the people in such manner as the respective legislatures may provide by law. R. S. 1856. See sec. 1, act of May 27, 1910 (36 Stat. 443), 2991, post. Pro 2540. Adjutants general of the National Guard of Territories.vided, That the adjutants general of the Territories and of the District of Columbia shall be appointed by the President with such rank and qualifications as he may prescribe, and each adjutant general for a Territory shall be a citizen of the Territory for which he is appointed. Sec. 66, act of June 3, 1916 (39 Stat. 199). 2541. Commander-in-chief of the National Guard of the District of Columbia.— That the President of the United States shall be the commander in chief of the militia of the District of Columbia. Sec. 6, act of Mar. 1, 1889 (25 Stat. 773). 2542. Commanding general of the National Guard of the District of Columbia. That there shall be appointed and commissioned by the President of the United States a commanding general of the militia of the District of Columbia, with the rank of brigadier-general, who shall hold office until his successor is appointed and qualified, but may be removed at any time by the President. Sec. 7, act of Mar. 1, 1889 (25 Stat. 773). 2543. Staff officers of the National Guard of the District of Columbia.-That to comply with the provisions of section 110, of the Act entitled "An Act for making further and more effectual provision for the national defense, and for other purposes," approved June 3, 1916, it is hereby provided that staff officers, including officers of the Pay, Inspection, Subsistence, and Medical Departments, appointed in the National Guard of the District of Columbia shall have had previous military experience and shall hold their positions until they shall have reached the age of sixty-four years, unless retired prior to that time by reason of resignation, disability, or for cause to be determined by a court-martial legally convened for that purpose, and that vacancies among said officers shall be filled by appointment from the officers of the National Guard of the District of Columbia. Act of July 11, 1919 (41 Stat. 127). 2544. Armory for the National Guard of the District of Columbia.Provided, That the commanding general of the Militia of the District of Columbia is authorized to enter into a contract or contracts for the lease of an armory, stable, drill shed, and warehouse for Cavalry, Field Artillery, Signal Corps, and Hospital Corps troops in one building, or separately, for a period not to exceed five years, renewable at the option of the said commanding general for an additional period of not exceeding five years, at an annual rental not to exceed $10,000: * Act of Mar. 3, 1917 (39 Stat. 1040). * * 2545. Use of grounds at Washington Barracks by the National Guard of the District of Columbia.-The National Guard shall have the use of the drill grounds and rifle-range at the Washington Barracks, subject to the approval of the Secretary of War, and the commanding general of the militia shall provide such additional targets and accessories as may be necessary for the use of militia. Sec. 44, act of Mar. 1, 1889 (25 Stat. 778). Change the number of section forty-four to "forty-seven." Act of Feb. 18, 1909 (35 Stat. 634), amending sec. 44, act of Mar. 1, 1889 (25 Stat, 779). 2546. Enlistment in the National Guard of the District of Columbia during the World War. That during the present war enlistments in the National Guard of the District of Columbia and appointment of officers of said National Guard shall be made from men who, upon examination, are found to be physically and mentally fit for military service, and within such age limits as may be prescribed by the commanding general of the District of Columbia Militia, with the approval of the President of the United States: Provided, however, That the joining of the National Guard of the District of Columbia, under the provisions of this Act by anyone either as an officer or an enlisted man, shall not relieve him from liability for any service in the United States military or naval forces to which he would otherwise be subject: And provided further, That enlistments under the provisions of this Act shall not prevent the continuance of enlistments, during the period of the war, of such men in the National Guard for the District of Columbia who may so elect, under the requirements of six-year contract of enlistment as heretofore prescribed: And provided further, That enlistments in the National Guard of the District of Columbia of the special class, and appointments of officers as herein specially provided, shall be for the period of the war and for a period not exceeding three months thereafter, if such additional term of service be required by the President of the United States, and, further, for service within the District of Columbia, or in cases of emergency, in the adjoining States of Maryland and Virginia, and such officers and enlisted men when in service, shall receive the same pay and allowances as are now provided by law for the National Guard of the District of Columbia: And provided further, That all officers appointed under the provisions of this Act shall be commissioned by the President of the United States, on the recommendation of the commanding general of the District of Columbia Militia, and no officer shall be commissioned without first being subject to an examination to determine his fituess to hold commission: And provided further, That during the period of the war retired officers of the National Guard of the District of Columbia may, if they so request, be assigned to duty as officers of the District of Columbia National Guard, in such grades as the President may direct, subject to examination: And provided further, That officers who have served in the National Guard and have resigned therefrom and officers and enlisted men who have been honorably discharged shall, during the period of the war, be eligible to reappointment and commission in the National Guard of the District of Columbia in such grades as they may be found qualified by examination to fill. That at the termination of the existing war, as determined by the proclamation of the President, the provisions of this Act shall become null and void. Act of Nov. 4, 1918 (40 Stat. 1019). 2547. Enlistment in the National Guard Reserve. That hereafter, men duly qualified under regulations prescribed by the Secretary of War may enlist in the National Guard Reserve for a period of one or three years, under such regulations as the Secretary of War shall prescribe, and on so enlisting they shall subscribe to the following enlistment contract and take the oath therein specified: "I do hereby acknowledge to have voluntarily enlisted this day of 19-, as a soldier in the National Guard Reserve of the United States and of the State of for a period of one (or three) year, unless sooner discharged by proper authority, and I do solemnly swear that I will bear true faith and allegiance to the United States of America and to the State of and that I will serve them honestly and faithfully against all their enemies whomsoever and that I will obey the orders of the President of the United States and the governor of the State of and of the officers appointed over me according to law and the rules and Articles of War": * Sec. 78, act of June 3, 1916 (39 Stat. 202), as emended by sec. 42, act of June 4, 1920 (41 Stat. 782). Pro 2548. Use of the National Guard by the States and Territories.— * vided, That 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: Sec. 61, act of June 3, 1916 (39 Stat. 198). 2548. Call into Federal service. That whenever the United States is invaded or in danger of invasion from any foreign nation, or of rebellion against the authority of the Government of the United States, or the President is unable with the regular forces at his command to execute the laws of the Union, it shall be lawful for the President to call forth such number of the militia of the State or of the States or Territories or of the District of Columbia as he may deem necessary to repel such invasion, suppress such rebellion, or to enable him to execute such laws, and to issue his orders for that purpose, through the governor of the respective State or Territory, or through the commanding general of the militia of the District of Columbia, from which State, Territory, or District such troops may be called, to such officers of the militia as he may think proper. Sec. 4, act of Jan. 21, 1903 (32 Stat. 776), as amended by sec. 3, act of May 27, 1908 (35 Stat. 400). That whenever the President calls forth the organized militia of any State, Territory, or of the District of Columbia, to be employed in the service of the United States, he may specify in his call the period for which such service is required, and the militia so called shall continue to serve during the term so specified, either within or without the Territory of the United States, unless sooner relieved by order of the President: Provided, That no commissioned officer or enlisted man of the organized militia shall be held to service beyond the term of his existing commission or enlistment: Provided further, That when the military needs of the Federal Government arising from the necessity to execute the laws of the Union, suppress insurrection, or repel invasion, can not be met by the regular forces, the organized militia shall be called into the service of the United States in advance of any volunteer force which it may be determined to raise. Sec. 5, act of Jan. 21, 1903 (32 Stat. 776), as amended by sec. 4, act of May 27, 1908 (35 Stat. 400). That when the militia of more than one State is called into the actual service of the United States by the President he may, in his discretion, apportion them among such States or Territories or to the District of Columbia according to representative population. Sec. 6, act of Jan. 21, 1903 (32 Stat. 776). That the militia, when called into the actual service of the United States, shall, during their time of service, be entitled to the same pay and allowances as are or may be provided by law for the Regular Army. Sec. 10, act of Jan. 21, 1903 (32 Stat. 776). The editors of the "Compiled Statutes" and "Federal Statutes Annotated " deem the above provisions, applicable to "call" of the National Guard, repealed by sec. 111, of the national defense act (post, 2549), relating to "draft" of the same. Such is not the view of the Judge Advocate General. Ops. J. A. G. 82-200, Oct. 22, 1917. See also notes to 2549, post. See also 2814 and 2819, post. 2549. Draft into Federal service.-When Congress shall have authorized the use of the armed land forces of the United States for any purpose requiring the use of troops in excess of those of the Regular Army, the President may, under such regulations, including such physical examination, as he may prescribe, draft into the military service of the United States, to serve therein for the period of the war or emergency, unless sooner discharged, any or all members of the National Guard and of the National Guard Reserve. All persons so drafted shall, from the date of their draft, stand discharged from the militia, and shall be subject to such laws and regulations for the government of the Army of the United States as may be applicable to members of the Army, whose permanent retention in the military service is not contemplated by law, and shall be organized into units corresponding as far as practicable to those of the Regular Army or shall be otherwise assigned as the President may direct. Sec. 111, act of June 3, 1916 (39 Stat. 211), as * * amended by sec. 49, act of June 4, 1920 (41 Stat. 784). For the constitutional power to call forth the militia, see 2786, post. Notes of Decisions. Application of Constitution and laws.-Const. art. 1, sec. 8, cl. 15, which confers power upon Congress to provide for the calling forth of the militia to execute the law of the United States, and act of February 28, 1795, applies to the States. U. S. v. Stewart (C. C. 1857), Fed Cas. No. 16,401a. Necessity of call.-The President alone is made the judge of the necessity of calling the militia into the service of the United States. Martin v. Mott (1827), 25 U. S. (12 Wheat.) 19, 6 L. Ed. 537; Vanderheyden v. Young (N. Y. 1814), 11 Johns, 150. may draft compulsorily into the Federal service officers and enlisted men of the National Guard, and Congress had authority to confer such power. Id. This section does not merely authorize the calling forth of the militia to execute the laws, suppress insurrections and repel invasions. Selective Draft Law Cases (1918), 245 U. S. 366; U. S. v. Sugar (D. C. 1917), 243 Fed. 423. Physical examination.- Where petitioner was physically examined and accepted on being drafted under this section, and his physical examination was not shown to be irregular or unfair, his status is determined by the draft of Aug. 5, 1917, and irregularities, if any, which may have occurred at the time of his previous examination and voluntary enlistment, are immaterial. Blackington v. U. S. (C. C. A. 1918), 248 Fed. 124, affirming 245 Fed. 801. State powers.- Where a member of the State National Guard has been drafted into the military service under the national defense act, and hence is beyond the jurisdiction of the State courts, an appellate State court will not consider whether he was properly mustered into the service of the State, as the question has become moot. Ex parte McMillan (Ala. App. 1917), 74 South. 396. Effect of muster.-The effect of mustering into the service of the United States of a person elected colonel by State volunteers could not be to make him an officer of the United States, nor could he become one by his own acts; a commission from the proper executive authority being necessary. Watson . Cobb (1863), 2 Kan, 32. The commanding general of the National Guard of the District of Columbia though as accepting a commission and acting colonel in the Volunteer Army, for service in the war with Spain, is still the commanding officer of the District Militia, and is authorized, under act of May 11, 1898 (30 Stat. 404), to nominate candidates for appointment as officers in the naval battalion. (1898) 22 Op. Atty. Gen. 237. 2550. Draft of the Philippine Militia into Federal service. That the militia and other locally created armed forces in the Philippine Islands may be called into the service of the United States, and all members thereof may be drafted into said service and organized in such manner as is or may be provided by law for calling or drafting the National Guard into said service, and shall in all respects while therein be upon the same footing with members of the National Guard so called or drafted: Provided, That the pay and allowances of officers and men of the Philippine Militia and other locally created armed forces in the Philippine Islands called into the service of the United States under the provisions of this Act when serving in the Philippine Islands shall in no case exceed the pay and allowances for corresponding grades of Philippine Scouts. Act of Jan. 26, 1918 (40 Stat. 432). 2551. Physical examination of National Guardsmen when drafted. Every officer and enlisted man of the National Guard who shall be called into the service of the United States as such shall be examined as to his physical fitness under such regulations as the President may prescribe without further commission or enlistment: Sec. 115, act of June 3, 1916 (39 Stat. 212). This section, together with sec. 111 of this act, probably superseded sec. 7 of act of June 21, 1903 (32 Stat. 776), as amended by sec. 5, act of May 27, 1908 (35 Stat. 401), which was as follows: Every officer and enlisted man of the militia who shall be called forth in the manner herein before prescribed, shall be mustered for service without further enlistment, and without further medical examination previous to such muster, except for those States and Territories which have not adopted the standard of medical examination prescribed for the Regular Army: Provided, however, That any officer or enlisted man of the militia who shall refuse or neglect to present himself for such muster, upon being called forth as herein prescribed, shall be subject to trial by court-martial and shall be punished as such court-martial may direct." 2552. Vacant. 2553. Drafted National Guard to be subject to the rules and regulations for the Army. The National Guard when called as such into the service of the United States shall, from the time they are required by the terms of the call to respond thereto, be subject to the laws and regulations governing the Regular Army, so far as such laws and regulations are applicable to officers and enlisted men whose permanent retention in the military service, either on the active list or on the retired list, is not contemplated by existing law. Sec. 101, act of June 3, 1916 (39 Stat. 208). This section probably superseded sec. 9, act of Jan. 21, 1903 (32 Stat. 776), which was as follows: "The militia, when called into the actual service of the United States, shall be subject to the same Rules and Articles of War as the regular troops of the United States." *Provided, That im 2554. Physical examination prior to muster out.mediately preceding the muster out of an officer or enlisted man called into the active service of the United States he shall be physically examined under rules -21 146345°-21-VOL 2 1245 |